Book: The Rule of Law without the State

The late Michael van Notten's book "The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa" was published posthumously, edited by Spencer Heath MacCallum (Red Sea Press, 2005):

www.africaworldpressbooks.com/servlet/Detail?no=9

Publisher's description: "Written by a trained and sympathetic observer, this book shows how Somali customary law differs fundamentally from most statutory law. Lawbreakers, instead of being punished, are simply required to compensate their victim. Because every Somali is insured by near kin against his or her liabilities under the law, a victim seldom fails to receive compensation. Somali law, being based on custom, has no need of legislation or legislators. It is therefore happily free of political influences. The author notes some specific areas that stand in need of change, but finds such change already implicit in further economic development. Somali politics is based on consensus. The author explains how it works and shows why any attempt to establish democracy, which would divide the population into two classes – those who rule and those who are ruled – must inevitably produce chaos. Viewed in global perspective, Somali law stands with the Latin and Medieval laws and the English common law against the statutory law that became prominent in Europe with the modern nation-state. This book explains many seeming anomalies about present-day Somalia and describes its prospects as well as the dangers facing it."

Dutch-born libertarian Michael van Notten (1933-2002), a Law graduate of Leiden University, spent the last twelve years of his life promoting economic development in Awdal, Somalia.

The book's editor, Spencer Heath MacCallum, is also the author of a number of articles on Somalia, among them "The Rule of Law without the State", published by the libertarian Ludwig von Mises Institute in its "Mises Daily" on 12 September 2007.

The article can be read free of charge here:

http://mises.org/daily/2701

Excerpts: "Were there such a category, Somalia would hold a place in Guinness World Records as the country with the longest absence of a functioning central government. When the Somalis dismantled their government in 1991 and returned to their precolonial political status, the expectation was that chaos would result – and that, of course, would be the politically correct thing to expect. Imagine if it were otherwise. Imagine any part of the globe not being dominated by a central government and the people there surviving, even prospering. If such were to happen and the idea spread to other parts of Africa or other parts of the world, the mystique of the necessity of the state might be irreparably damaged, and many politicians and bureaucrats might find themselves walking about looking for work. [...]

"[A] study published last year by Benjamin Powell of the Independent Institute, concludes: 'We find that Somalia's living standards have improved generally ... not just in absolute terms, but also relative to other African countries since the collapse of the Somali central government.' Somalia's pastoral economy is now stronger than that of either neighboring Kenya or Ethiopia. It is the largest exporter of livestock of any East African country. Telecommunications have burgeoned in Somalia; a call from a mobile phone is cheaper in Somalia than anywhere else in Africa. [...] All of this is terribly politically incorrect for the reason I suggested. Consequently, the United Nations has by now spent well over two billion dollars attempting to re-establish a central government in Somalia. But here is the irony: it is the presence of the United Nations that has caused virtually all of the turbulence we have seen in Somalia. [...]

"Like most of precolonial Africa, Somalia is traditionally a stateless society. When the colonial powers withdrew, in order to better serve their purposes, they hastily trained local people and set up European-style governments in their place. These were supposed to be democratic. But they soon devolved into brutal dictatorships. Democracy is unworkable in Africa for several reasons. The first thing that voting does is to divide a population into two groups – a group that rules and a group that is ruled. This is completely at variance with Somali tradition. Second, if democracy is to work, it depends in theory, at least, upon a populace that will vote on issues. But in a kinship society such as Somalia, voting takes place not on the merit of issues but along group lines; one votes according to one's clan affiliation. Since the ethic of kinship requires loyalty to one's fellow clansmen, the winners use the power of government to benefit their own members, which means exploitation of the members of other clans.

"Consequently when there exists a governmental apparatus with its awesome powers of taxation and police and judicial monopoly, the interests of the clans conflict. Some clan will control that apparatus. To avoid being exploited by other clans, each must attempt to be that controlling clan. The turmoil in Somalia consists in the clans maneuvering to position themselves to control the government whenever it might come into being, and this has been exacerbated by the governments of the world, especially the United States, keeping alive the expectation that a government will soon be established and supplying arms to whoever seems at present most likely to be able to 'bring democracy' to Somalia. [...]

"A [...] point about the Xeer [customary law] is that there is no monopoly of police or judicial services. Anyone is free to serve in those capacities as long as he is not at the same time a religious or political dignitary, since that would compromise the sharp separation of law, politics, and religion. Also, anyone performing in such a role is subject to the same laws as anyone else – and more so: if he violates the law, he must pay heavier damages or fines than would apply to anyone else. Public figures are expected to show exemplary conduct. [...] Michael van Notten's book describing this system of law deserves to be better known and widely read. It is the first study of any customary law to treat it not as a curiosity of the past, but as potentially instructive for a future free society."

Spencer Heath MacCallum, a social anthropologist and business consultant, is a Research Fellow at the libertarian Independent Institute.