ABOUT THE BOOK:
This work examines Somali customary law. Somali law is customary rather than punitive - law breakers, rather than being imprisoned or punished, are required to compensate their victims. A victim seldom fails to receive compensation because every Somali is insured by near kin against his or her liabilities under law. Because it is based on custom, Somali law has no need of legislation or legislators and hence is happily free from political influence. Michael Van Notten details the major features of Somali law, explaining as he does why to enforce change within it would be disastrous for the country. He argues for positive change as implicit in economic development, rather than requiring legislation - the sale of land, for example, and the enhancement of the status of women. As for the Somali political system, not only is there no need to set up a democracy - Van Notten clearly shows that to do so in a country so used to customary law would be to promote chaos.
Written by a trained and sympathetic observer, "Law Of The Somalis" demonstrates how when viewed from a global perspective Somali law stands with Latin and Medieval law systems and the English common law against the statutory law that originated in continental Europe with the modern nation state. It explains the apparent anomalies extant in present-day Somalia and describes its prospects as well as the dangers facing it.
"Students of legal anthropology learn the phrase "customary law" early in their training. But seldom is it accompanied by nuanced understanding. Law of the Somalis fundamentally alters this default. Generations of legal anthropologists working in colonial Africa devoted themselves (usually with the best intentions) to "codifying" customary law, never pausing to ask whether customary law might possess advantages wholly antithetical to "legislated" law.
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.
ABOUT THE AUTHOR:
Born in Zeist, the Netherlands, MICHAEL VAN NOTTEN (1933-2002) graduated from Leiden University in Law and was admitted into practice in Rotterdam. Following the demise of central government in Somalia, he anticipated that Somalia might take its place in the world as a stateless society. Marrying into the Samaron clan, he promoted economic development in Awdal for the last twelve years of his life. He became a careful observer of Somali customary law and a keen analyst of the intricacies of clan politics.
ABOUT THE EDITOR:
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, known internationally for its fine-art pottery. Author of The Art of Community and a former real-estate analyst, he has long studied the feasibility of urban communities without taxes.