- Paperback: 272 pages
- Publisher: The Red Sea Press, Inc. (November 27, 2005)
- Language: English
- ISBN-10: 156902250X
- ISBN-13: 978-1569022504
- Product Dimensions: 5.5 x 0.8 x 8.5 inches
- Shipping Weight: 11.2 ounces (View shipping rates and policies)
- Average Customer Review: 4.6 out of 5 stars See all reviews (5 customer reviews)
- Amazon Best Sellers Rank: #1,655,998 in Books (See Top 100 in Books)
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The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa Paperback – November 27, 2005
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About the Author
Spencer Heath MacCallum is a social anthropologist living in Casas Grandes, Chihuahua, Mexico, where he played a central role in the economic development of the village of Mata Ortiz, now known internationally for its fine-art pottery. He has long studied the feasibility of social organization without taxation. He is the author of THE ART OF COMMUNITY and numerous journal articles.
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Top Customer Reviews
The late Michael van Notten, a Dutch-educated lawyer "adopted" into Somali society, has written a "brief" (using the Somali case) on behalf of the proposition that customary law succeeds in fulfilling natural law demands for justice in ways superior to law created by systems of representative democracy. Legislated law of necessity disenfranchises the minority (who failed to elect their representatives), while customary law, because it focuses on disputes situationally, and relies on customary legal principles not unbending statutes for solutions, is better suited to respecting the interests of all sides. A major factor in van Notten's argument in favor of the Somali example is his demonstration of how customary law performs in its intensely competitive environment. In order to preserve its general acceptance, customary law must provide non-governmental means whereby people can complain if they feel their rights were violated.
The name given to this customary law system is kritarchy, that is, a system of rule distinguished from monarchy and oligarchy, by its reliance on "judging through principle." Kritarchy rests not on political institutions, but rather simply on the rule of law.
In a world where "failed-state" can be a buzzword precursor to outside intervention, issues presented by nations relying on customary law are far from academic. Van Notten's polemic is thus also timely - and far from an abstract contemplation. To the contrary, based on firsthand experience the book urges that a customary law foundation, such as found in Somalia, provides an ideal basis for establishment of a Free Port dedicated to commercial relations with the highest regard for natural law property rights. The United Nations has poured billions of dollars, thus far without evident success, into the cause of re-establishing a Somali central government, a proposition anathema to the customary law systems of Somalia's clans. Van Notten, on the other hand, sees opportunity to vindicate an approach to law consistent with older forms honoring sage leadership and counsel without the power to coerce and tax.
The readability and relative brevity of the text highly recommend Law of the Somalis for classroom use. It fits comfortably alongside, and is a refreshing addition to, the scholarly tradition reflected in such classic ethnographic legal-political titles as, Tswana Law (I. Schapera), The Cheyenne Way (K. Llewellyn and E.A. Hoebel), and The Judicial Process among the Barotse (M. Gluckman).
Howard J. De Nike, J.D., Ph.D., Instructor, Anthropology Department, University of New Mexico, Albuquerque, NM.
The justice system in northern Somalia, Somaliland, works as a common law, less formal than the English common law, but formalized in its procedures and precedents. It uses (by retainer) recognized judges or arbiters who receive apprentice-like training, experience on the job, and are selected on the basis of reputation for a track record of wise rulings. This pertains in civil and in criminal matters.
The greatest flaw in the rules, not in the system, is the lack of absolute property rights. Common grazing ground has fairly comprehensive rules as to how it may be used, thus avoiding the tragedy of the commons. But it can't be sold which is a considerable constraint on achieving prosperity. Individually owned real property has similar restraints; it can be sold only within the clan. This also constrains prosperity.
Somaliland does immensely better that the southern regions of Somalia where repeated efforts to reestablish central government, and the fear of such, have encouraged "war-lordism" and have discouraged economic betterment.
This system of justice appears to have been the general modus operandi across most of Africa before colonization. It is remarkable that so much of the system has survived a couple centuries of colonization and several decades of tyrannical dictatorships, both very centralizing forces.
To this observer this system demonstrates the validity of the libertarian notion that man can govern himself better at the individual and local level than he can be governed by the central state, federated or otherwise.