Zen and the art of...


Somalia's Customary Law

In recent years, there have been a growing interest for decentralization in information technologies. It started a long time ago when personal computers (and before them mini computers) replaced the gigantic computers of yore. Today many topics in software development are focused on decentralization like distributed version control, offline web applications or database sharding. This concept can be applied to many things around us, it's not only pertaining to our domain. Lately I've been thinking about what I called then a decentralized legal system. That name wasn't quite good and I learned that the correct term is polycentric law. This type of legal structure has not been studied widely, and only managed to gather interest from researchers since the beginning of the nineties. It's at that time that Tom W. Bell wrote a paper entitled "Polycentric Law" in which he described various examples of such systems like the Anglo-Saxon customary law. For him, there are six main features that embodies this concept:

  • Focus on individual rights
  • Law is enforced by reciprocal agreement between the victim(s) and the accused party
  • Common procedures to help maintain order
  • Punitive actions are centered around paying back for the wrong deeds committed
  • Social exclusion is used as a powerful incentive
  • Laws are more adaptive to traditions and customs.

Anglo-Saxon's customary law had a surety mechanism known as borh (not to be confused with a Burh) that was the foundation of their whole system of law. It was really simple, you take a dozen persons and then bind them together by making them pledge to be responsible for each others' actions. If one of them got a fine, the group must pay it, thus ill-behaving members were not very popular and could even be expelled . It's sure such a system wouldn't work well in modern time Britain, or in other prosperous countries for that matter, but at the time these were very coercive incentives. There were a lot of other similar customary law in ancient times, but we can find other kinds of decentralized systems in more civilized political structures. The Roman law for example allowed indigenous legal systems for non-Romans, some of which being polycentric, and we could also consider the European Union has a form of decentralized (or multi-layered) superstate, but it would be a stretch to call these polycentric.

This brings us to the subject of the day, Somalia's customary law, the Xeer legal system. It's what has defined Somalia since its inception and is more than thirteen centuries old. It has been and still is the principal way for Somalis to resolve their disputes despite the introduction of the Shari'a (which by the way is widely used for common civil cases like marriage, divorce, inheritance, etc.) and the Italian colonial government's attempt to get rid of traditional laws before the independence. The Xeer is considered to be completely indigenous and is perhaps the most evolved form of polycentric legal system still in use today. In spite of all the political instability, piracy and other problems plaguing this country, Somalia's economy is thriving compared to most other African nations and some people are attributing that to their customary law. Even the government of the autonomous Somaliland region have tried to make themselves more legitimate in the eyes of their citizens by appointing elders (the Xeer system's judges) into the upper house of parliament, but that apparently didn't worked so well. I must note that Xeer's popularity in that part of Somalia is more pronounced as a consequence of the more relaxed British attitude toward their colonies. Since the Somalis gained their independence in the sixties, the state of Somalia had introduced various civil law systems, but the Xeer always prevailed, even with Siad Barre efforts to forbade clanism and promote centralization.

The law is defined in terms of property rights, which make it more compensatory than punitive. This characteristic by itself position this system as a great example of the previously defined concept of polycentric law. Another aspect is shown in the way fines are being paid, not to a court or the government, but directly to the victim(s). There's also many traditions that aren't polycentric, like bigger fines for prominent members of society than for commoners and a staunch opposition to any form of taxation. It's a very secular system too, keeping religious concerns out of the way. It also normally takes precedence over the Shari'a, even though both systems generally occupy different niches. There's a saying in Somalia that say:

Diinta waa labaddali karaa, xeer se lam baddali karo

That means "One can change his religion, one cannot change the law", which shows how secularism is ingrained into Somalis collective consciousness, especially when considering the predominance of a single religion in that country for centuries. But their secularism go even further than what is known elsewhere, as the law is even considered to be separated from the government. The Xeer system is administered and enforced by civilians, not government officials.

There's an insurance mechanism not unlike the bohr surety system. Generally the family of the offender is designated to be responsible for its actions, thus rehabilitation of criminals is the business of their respective family. In extreme cases, the family can disown one of its member, who then automatically becomes an outlaw. In such case, the only option left for the criminal is to leave the country. The way everything works can bear surprising resemblance to modern systems of law. There is specialized functions that can be related to the common court and law enforcement functions:

  • Odayal (Judges)
  • Xeer Boggeyaal (Jurists)
  • Guurtiyaal (Detectives)
  • Garxajiyaal (Attorneys)
  • Murkhaatiyal (Witnesses)
  • Waranle (Police officers)

Each Somali is appointed an Odayal at birth, chosen after long deliberation by the elders of the clan. That title can be lost at some point if the community decide so, making judges more careful and taking the interest of the collectivity before their own clan. The way everything work is intimately tied to the complex Somali family clan structure. This system is even scalable, as the Xeer not only rule disputes inside and between clans, but also across regions, between alliances of clans called jilibs. I won't go into the details of court procedures as this is pretty boring stuff (comically googling "pretty boring stuff" yields `Pretty Boring Stuff': District Judges and Housing Possession Proceedings as first result!) One thing to note is the preponderance of oaths to settle complex situations, for instance when the witnesses contradict each other or if there's not enough witnesses to confirm a story. In these times, the person in question is asked to take an oath like "I swear by my virility." or "I swear by Allah.". Some oaths can even have consequences like the divorce oath that, if broken, make a marriage vow null and void. There's also a oath of innocence that the accused must take when the plaintiff fails to convince the judge of the validity of his case.

To wrap up everything, the long time appreciation of the Xeer by Somalis seems to be in sharp contrast with the usual cynicism most peoples have toward their legal system. Even though Somalia as its problems, which are less dramatic than some would have us to believe, it doesn't mean there's nothing to be learned from them.

Further Readings

No comments:

Post a Comment

About Me

My photo
Quebec, Canada
Your humble servant.