Welcome back to our discussion of Friedman, Leeson, and Skarbek’s Legal Systems very Different from Ours. Today we are discussing Somali law, specifically that of the pastoralists of northern Somalia (law works differently in southern Somalia, due to the different agricultural system and people there.)
I have often characterized Somalia as more of a place where other countries aren’t than a country proper. There is no real central government control of most of the territory known as “Somalia,” though things have apparently been stabilizing a bit over the past few years–a mere 500 people were killed by bombs in Mogadishu, Somalia’s capital, in 2017.
Somaliland–the northern part of Somalia–has about 4 million people and 68,000 square miles bordering the Gulf of Aden, for a population density of about 65 people per square mile. (For comparison, the US has a density of about 91 people per square mile, but we also have Alaska.)
The per capita GDP is about $347 a year, which is to say, it’s a subsistence economy:
According to the Central Bank of Somalia, about 80% of the population are nomadic or semi-nomadic pastoralists, who keep camels, goats, sheep and cattle. The herders also gather resins and gums to supplement their income.
There’s also some fishing and a few crops, but the area is pretty dry and not suited to growing much.
Most Somalis are ethnically Somali and speak the Somali language, which is at least easy to remember. The Somali language is a branch of the Afro-Asiatic family, along with Arabic and Hebrew, and the Somali people are similarly ethnically related to other Afro-Asiatic speakers. What percent of their ancestors have been in the area approximately forever and what percent arrived within the past few thousand years from Arabia or beyond, I don’t know, but Somalis look fairly distinctive to me.
The ongoing civil wars and low level of infrastructure development (like irrigation systems) results in a lot of human suffering, though I don’t know how it is distributed through the country–this famine happened in the southern part of the country.
The authors argue that the suffering of the Somali people is not due to the inadequacy of local institutions, but due to colonial authorities trying to impose foreign institutions like “states” and “democracy” on a people who were entirely unsuited to them:
The exiting colonial powers set up a democratic central government, possibly not the best option for a society whose traditional institutions were decentralized and stateless. The democracy lasted for nine years… the central government disintegrated and the Somalis were back with their traditional system.
With two differences. First, the experience of a past central government and the expectation of a future one encouraged some… to engage in a power struggle aimed at putting themselves in the profitable role of rulers… Second, outside powers, acting through the UN in the belief that the country needed a central government, attempted to reestablish one… The result has been an extended period of violence and chaos…
There’s a lot going on in these two paragraphs. First, I grant that Somali history is probably complicated and this is probably an over-simplification, but civil war and anarchy are definitely part of the overall picture. Why Somalia should be such a basket case while nearby Ethiopia, which doesn’t seem that different and has also had plenty of suffering over the years, should still have something resembling a functioning government, I don’t know.
Second, some comparative before and after data for places like Somalia, Ethiopia, and Tanzania might be useful when it comes to statements about the role of colonialism and violence, since this would allow us to make some comments on its effects (Ethiopia: no colonization, still mass famines; Tanzania, colonized, seems pretty stable.)
We can also ask whether it was the experience of central government that prompted people to try to conquer Somalia, or the availability of machine guns and armored vehicles.
Either way, the thesis that outside powers acting through the UN just managed to muck things up even more than they were before doesn’t sound unreasonable.
But let’s get to the legal system:
While Somaliland has a government… it is a government based on traditional institutions with an upper house of clan elders and one that appears for the most part to defer to customary law privately enforced in the traditional manner…
The Somali legal structure runs through clan-based kinship structures, which is to say it’s based on the needs of a pastoral community. To briefly review, in case you don’t remember the series on pastoral herders I did a couple of years ago, pastoralists (herders) generally own a combination of personal and communal herd animals which move around within a communal system of land/grazing rights. It is rare for herders to simply own their own herd on their own plot of land, because animals need a lot of land–more land than most individuals can own, unless population density is really low. Herd animals naturally migrate and move around depending on the rain, temperature, predators, grass, etc. A small herd may need fewer pounds of feed per day, but it still needs to travel equally long distances to get to summer pasture, winter pasture, etc., or else it depends on someone transporting food to it (our strategy in the US).
So it’s impractical for individual herd owners to each own enough land for their personal herds, (you’d have to be extremely wealthy), but it is practical for groups of herders to collectively control large chunks of land and move their herds around communally on them.
Of course, individual people still put in individual labor to care for their herds–individual ownership is useful–so individuals have claims to particular animals, but not always the ones they are directly caring for. For example, a man might have a herd of his own, but a particular billy goat is actually his cousin’s, borrowed for the sake of making more kids. A portion of the kids and the milk made by the nannies are therefore also his cousin’s, but his cousin may not come to collect them for several years, during which time the kids grow up, are eaten, and replaced. Sooner or later his cousin does come calling (say, because he needs to gather goats to pay for his son’s wedding).
And likewise, the man may have claims on goats in several of his relatives’ herds, or the whole family may pool all of the goats together and send the kids out to watch them, and everyone knows they get a 10% share of the herd.
Different people in different places obviously develop different systems, depending on the nature of the geography, the animals, and the local culture, but the important thing is that herds, even when they are individually owned, are very communal and run through kinship.
Every Somali memorizes as a child his genealogy through the paternal line up many generations, an important piece of information since it defines his relationship to every other Somali. … The closer the linkage between two Somalis–the smaller the number of generations to a common ancestor–the more likely they are to be allies. …
If, to simplify considerably, there is a conflict between two individuals whose common great-great-grandfather in the paternal line had two sons, the group that becomes engaged on the side of each will be the descendants of the sons from whom he is descended.
I suspect that this maps very closely to how herds are managed and shared, because you do not want to anger the people who have your goats.
If a conflict arises involving a member of one of those groups against someone whose genealogy links with theirs higher up the genealogical tree, the two groups that were enemies in the first round may ally.
Somalis don’t just rely on kinship groups, though. They have insurance clubs, like Triple A but for in case someone stabs your camel instead of flat tires.
The dia [blood money]-paying group is responsible for paying for offenses by its members, collecting for offenses against its members, and in the the latter case, using force or the threat of force to obtain payment. … The dia-paying group’s membership and internal rules are defined by explicit contract.
After all, if you have no prisons, what kind of long-term punishments do you have? Fines. And without banks or much in the way of hard currency, wealth is stored in herd animals, and the value of a man’s life, like that of a corporation, is not immediately available. It’s earned over time. The collective amount he has available to draw on is the collective herd owned by his kinsmen (or dia-paying group) just as they can draw on his herds, in turn, to pay their debts.
Dia-paying groups are usually between 300 and 3000 men. Too small, and the cost to each individual is too high; too big, and internal conflicts split the group.
There doesn’t appear to be (traditionally) an real legislature that passes laws, perhaps because no one had the power to do so. Instead, individual dia-paying groups establish their own laws by explicit contract, and questions of application are up to local judges.
I wonder how the contract-making actually works, though. Are they written contracts? (Only about 50% of Somali men are literate.) Is there some official way to register them? How do you keep track of who has paid up and who hasn’t?
Anyway, judges make their decisions, and if people like their decisions, they keep using that judge. If they think that judge makes stupid decisions, they can switch to a different judge. If people like a judge’s decisions and he makes a lot of decisions on new topics, a kind of informal case law builds up that future judges may rely on. (Judges, at least, are probably literate.)
… matters of marriage and inheritance are usually brought before a judge who applies Koranic law, almost all Somalis being Muslims.
This would normally require literacy, of course.
The schedule of payments of blood-money for death or injury is based on that in Islamic law, modified by custom and contract, with the amount sometimes larger or smaller depending on the relationship between offender and victim.
Note that this system is run by men; women who are victims of violence (there’s a lot of rape in Somalia,) have less support. Refworld notes:
If the rapist is from another clan, the clans will often settle the conflict through the system of a diya payment. It is the males of the clan who negotiate the price, sometimes against the wishes of the victim, and the settlement money often stays with the male relatives (Africa Watch 4 Oct. 1993, 18).
Predictably, a woman’s life is worth half as much as a man’s.
Somali political institutions at the clan level exist but are limited. …
Was it always this way?
When a dispute arises between members of different dia-paying groups the elders from each side form a court with themselves ad judges, ask the parties to state their cases, hear witnesses and state a verdict. … If force is needed to make the losing party obey the verdict in an intra-clan dispute, the judges can recruit all able-bodied male villagers for the purpose…
Thus the Somali system is ultimately a feud system, one in which law is enforced by the private application of force or the threat of force, but a feud system with institutions for avoiding violence via widely respected mechanisms to arbitrate disputes.
I’m not sure what he means by “private” here. Obviously it’s not state-based, since there is no state. But since this is the (apparent) government structure, it’s still the government. It’s just a smaller-scale system.
I’d like to see some actual data on how good it is at curbing violence, though, before he declares it successful. There’s not a whole lot about Somalia that I’d describe as “successful.”
Interesting note on oaths sworn during trials:
One such oath consists of the oath-giver swearing by his marriage; if it later turns out that his oath was false, the marriage is dissolved.
Since marriages are also legal contracts involving the transfer of money/property/herd animals from one household to another, this is also a monetary pledge.
The punishment for murder is a life for a life; if the murderer flees, the aggrieved can just hunt down and kill some other random poor sap from the murderer’s family,
because why the fuck not, they apparently can’t tell each other apart which really incentivizes your family to turn you over to the victims rather than help you flee.
Usually people accept blood money, though, hence everyone’s membership in blood money societies, because “oops I killed someone” insurance is apparently a thing people need in Somalia.
Somali legal rules for bodily injury have one other interesting feature. If a man seriously wounds another, his family must take the victim into their household and nurse him back to health–the same requirement as in ancient Irish law.
The Irish abandoned this law for obvious reasons (you don’t want to be “nursed back to health” by a guy who wants you dead) and I bet the Somalis have, too.
There are a variety of regulations on grazing land, though it is mostly first come, first serve. Some agricultural land is semi-privately owned, with rules about not selling it to people outside the clan, because rampant ultra-racism is the norm.
One odd feature of Somali customary law is that a wealthy man is required, with detailed legal rules, to share his wealth with neighbors and relatives.
That doesn’t sound too odd. There are probably good reasons for the rule, like the lack of refrigerators for storing large amounts of meat obtained by butchering and a limit to the available grazing land before one flock just eats all of the food and leaves nothing for the others.
I thought the case of dealing with the state of Ethiopia as a clan was interesting, though it’s a bit long to quote. Basically, some Ethiopian soldiers (I think) killed a Somali merchant. An hour later, the victims family killed two random soldiers in retaliation. The military decided that the retaliatory killing was just and did not retaliate by wiping out the village.
Anyway, that’s the end of the chapter. It’s an interesting chapter, but since Somalia is such a messed up country, it’s hard to take seriously without some evidence that the system is actually working for its people.
I do find it interesting, though, that even in a place as broken as Somalia, people still organize into groups, make contracts, take out insurance, etc. Organization of some sort seems to be a near-automatic, inherent feature of human groups. It’s also interesting that a system can survive without lawmakers (or any kind of organized executive) and just rely instead on common understandings of what the group does and does not allow, but not without judges.
(This of course reminds me of the progression in the Old Testament, from wandering pastoral nomads in Exodus, following the “oral law,” to the rule of judges in Judges and finally kings in Kings, but only after the people asked for one: 1 Samuel 8:
When Samuel grew old, he appointed his sons as Israel’s leaders.[a] 2 …But his sons did not follow his ways. They turned aside after dishonest gain and accepted bribes and perverted justice.
4 So all the elders of Israel gathered together and came to Samuel at Ramah. 5 They said to him, “You are old, and your sons do not follow your ways; now appoint a king to lead[b] us, such as all the other nations have.”
6 But when they said, “Give us a king to lead us,” this displeased Samuel; so he prayed to the Lord. 7 And the Lord told him: “Listen to all that the people are saying to you; it is not you they have rejected, but they have rejected me as their king. As they have done from the day I brought them up out of Egypt until this day, forsaking me and serving other gods, so they are doing to you. 9 Now listen to them; but warn them solemnly and let them know what the king who will reign over them will claim as his rights.”
Samuel told all the words of the Lord to the people who were asking him for a king. 11 He said, “This is what the king who will reign over you will claim as his rights: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots. 12 Some he will assign to be commanders of thousands and commanders of fifties, and others to plow his ground and reap his harvest, and still others to make weapons of war and equipment for his chariots. 13 He will take your daughters to be perfumers and cooks and bakers. 14 He will take the best of your fields and vineyards and olive groves and give them to his attendants. 15 He will take a tenth of your grain and of your vintage and give it to his officials and attendants. 16 Your male and female servants and the best of your cattle[c] and donkeys he will take for his own use. 17 He will take a tenth of your flocks, and you yourselves will become his slaves. 18 When that day comes, you will cry out for relief from the king you have chosen, but the Lord will not answer you in that day.” 8 As they have done from the day I brought them up out of Egypt until this day, forsaking me and serving other gods, so they are doing to you. 9 Now listen to them; but warn them solemnly and let them know what the king who will reign over them will claim as his rights.”
19 But the people refused to listen to Samuel. “No!” they said. “We want a king over us. 20 Then we will be like all the other nations, with a king to lead us and to go out before us and fight our battles.”
21 When Samuel heard all that the people said, he repeated it before the Lord. 22 The Lord answered, “Listen to them and give them a king.”
Have a good day; we’ll be looking the supposedly similar Irish feud law next Monday.