Between earthquakes, droughts and feuding warlords the Muslim community is awash with relief efforts to benefit Somalia, as it should be. Somalia is pretty much the quintessential image of extreme poverty for most people. Nonetheless, sometimes an article appears that rightly points out that Somalia has improved by virtually every measure of standard of living since the collapse of their central government and they’ve improved faster than any of their neighbors that still have a state. Even the BBC grudgingly admitted that 20 Years of Anarchy had spurred economic growth, especially in the telecommunications sector.
“The Law of the Somalis” by Michael van Notton describes Somalia's stateless legal tradition which he calls “kritarchy.” It is perhaps the most groundbreaking, even moving thing I’ve read about justice in a stateless society. I am particularly interested in this topic because the majority of Somalia is Muslim, specifically of the Shafi school, which is my school, and as the rest of the Muslim world explodes into populist movements demanding Western democracy, I’d like to argue, as van Notton did, that a superior indigenous alternative is nestled right in their backyards.
Somalia is not stateless by accident, as is the conventional view. The Somali people consciously rejected democracy and central government, and with good reason. Prior to the colonial period almost all African nations were polycentric tribal anarchies, which practiced a system of customary law.
The Somalis never accepted the legal systems of the colonial powers and largely ignored them or tried to nullify them by noncompliance, preferring always the social software of their own design. In 1991 the Republic of Somalia collapsed, but rather than electing a new leader, Somalis simply allowed their indigenous customary law to become the unopposed law of the land, which did not include any central government.
No discussion of Somalia can occur without addressing the political violence in and around the city of Mogadishu. So why Mogadishu? Well, that’s where the defunct politicians of the old republic, now known as “warlords,” are attempting to reestablish a central government in the old capital.
The United States and the United Nations believe that a central government is necessary to bring Somalia into, “the family of democratic nations,” and they have spent billions of dollars on state-building efforts, which only perpetuate the violence. Essentially, there is a huge pool of free money for whichever warlord can convincingly claim to be the central government of Somalia, but the people persistently resist all such claims. So warlords must use brute force, against both the people and each other, if they want the slush fund. Were it not for this there would be little incentive for civil war.
Van Notten speculates that the reason the US and UN do this is ideological, and fundamentally rooted in their fear that if Somalia were allowed to succeed, its system of stateless law could be viewed as a viable alternative to democracy and be spread elsewhere.
Why are the Somali people consistently unimpressed with Western political systems?
To answer that, we’ve got to define four sources of law that Van Notten identifies in the book: natural law, contract law, statutory law, and customary law. Natural law is the voluntary primordial order of all human societies, which coevolved with human nature. It is the invisible hand behind the entire human ecosystem. Natural law can be discovered and described, but it cannot be amended by human ambitions. A natural right is one that can be universalized to all human beings and exercised without permission and without infringing on the rights of others — namely, these are the rights to life, liberty, and property. Put simply, don’t hurt people and don’t take their stuff.
Contract law simply means to keep your agreements. A contract is valid when it is voluntarily entered and does not violate the rights of any third party.
Statutory laws are statutes written by rulers and enforced through threats of violence, usually by a standing police force.
Customary law may be an unfamiliar concept, but once you learn to see it, you’ll see it everywhere. Like natural law, it emerges spontaneously from people’s voluntary interactions. Think of it like this: the laws of chemistry or physics are eternal, but the sciences of those disciplines are constantly evolving. Such is the relationship of natural law to customary law. Natural law is eternal, while customary law is the discipline of refining our understanding of it.
Natural law can only be pursued in ways consistent with itself, just as inconsistency disproves a law in science. In that sense, fraudulent contracts, barbaric customs, and oppressive statutes cannot be rightfully regarded as laws at all, just statutes.
The Somalis are not ignorant of these concepts. In fact, life, liberty, property, and the four divisions of law all have words in their language that were not borrowed from other languages, indicating that these concepts are as indigenous to them as they are to English speakers. It was no historical accident that they developed a voluntary legal structure. Almost every Somali child is thoroughly educated in the customary law by the age of seven. Even an illiterate nomad understands life, liberty, and property, and regards himself as subject to no authority except God.
The Somali people strongly reject statutory systems like democracy because they render everyone subservient to political officials. They oppose dividing society into the rulers and the ruled. Democracy is often presented as “government by consent,” but in any statutory regime, someone claims the authority to rule over those who don’t consent. The inability to opt out by nonparticipation or secession renders the whole concept of consent meaningless. There can be no natural right to elect a “representative” to do what you have no natural right to do yourself.
Further, the idea that rulers could write new laws would strike the Somali people as obscene, because in their view the law is preexistent.
They cherish natural rights like the right to self defense by private arms, to practice law, to travel, to freely contract, to educate children, and to trade in open markets; in statutory systems all of these are reduced to privileges requiring licenses. In natural law, one is free to engage in all of these activities without asking permission, and every license is an infringement on that right. In order to protect natural rights, statutory law must first violate natural rights; whereas customary law is designed to protect natural rights in ways that approximate natural law. In this sense, statutory democracy itself is incompatible with natural law.
So what is kritarchy? How does Somali customary law work?