22 April 2009

Anarchy and the Law of the Somalis

I don't think there are any warlords in Somalia. There are war leaders, or militia leaders, in various parts of Somalia. People who defend their homes often organize militias; it is done in places as genteel as Switzerland, Texas, and Israel. You find that the mainstream media tends to call the leaders of these militia ‘officers’ in countries other than Somalia. Very often, the elders of a community choose a war leader or officer, and he chooses his lieutenants and subordinates. He provides leadership, until the crisis is past or until another officer is chosen to replace him, or until he dies. Calling him a warlord and calling his lieutenants ‘henchmen’ doesn't further a discussion of these issues.”

—Jim Davidson, Awdal Roads Company, Awdal Province, Somaliland, 2001.1

In July of 2001, after completing ROTC Basic Camp at Fort Knox, Kentucky, I refused to contract with the United States Army. When Major Hall, my company commander, asked me why I had decided not to pursue a commission as an officer, I told him that I was an anarchist, and that I could not in good conscience take a loyalty oath to fight on behalf of the United States government. I thanked the major for the infantry training and was on my way home the next day.

In September of 2007, I was asked by my legal practice skills professor to complete a questionnaire explaining what I expected from law school, why I wanted to study law, and what I hoped to accomplish with a legal education. I replied that I wanted to learn what I could about the history of the common law and the modern legal process. As for my goals after legal education, I answered to the effect that I hoped to aid in the emergence of a modern polycentric legal order2 where private insurance companies, arbitration firms, and security agencies would function in place of the present monopoly justice and security structures administered by the state.

The provision of dispute resolution services and security services by market means is not a radically new idea. With regards to theoretical arguments for market, rather than political, provision of dispute resolution and security services, Gustave de Molinari argued in 1849:

“This option the consumer retains of being able to buy security wherever he pleases brings about a constant emulation among all the producers, each producer striving to maintain or augment his clientele with the attraction of cheapness or of faster, more complete and better justice. If, on the contrary, the consumer is not free to buy security wherever he pleases, you forthwith see open up a large profession dedicated to arbitrariness and bad management. Justice becomes slow and costly, the police vexatious, individual liberty is no longer respected, the price of security is abusively inflated and inequitably apportioned, according to the power and influence of this or that class of consumers. The protectors engage in bitter struggles to wrest customers from one another. In a word, all the abuses inherent in monopoly or in communism crop up.”3

A number of radical libertarian writers in recent years have expanded on Molinari’s thesis, posing sophisticated arguments for a free market in justice and defense.4 However, there is plenty of evidence to demonstrate that people have been privately going about their own dispute resolution business for thousands of years. One strong indicator of this tendency is the fact that the government rulers who have long fought to monopolize the provision of binding dispute resolution have for hundreds, if not thousands, of years threatened criminal penalties against crime victims who independently endeavored to secure recompense from an offender. Rothbard recounts that,

“in the Middle Ages generally, restitution to the victim was the dominant concept of punishment; only as the State grew more powerful did the governmental authorities encroach ever more into the repayment process, increasingly confiscating a greater proportion of the criminal's property for themselves, and leaving less and less to the unfortunate victim.”5

As time went on, the king sought to protect his court revenues. Benson describes the development in English law:

“[R]oyal law imposed coercive rules declaring that the victim was a criminal if he obtained restitution before he brought the offender before a king's justice where the king could get his profits. This was not a strong enough inducement, so royal law created the crime of ‘theftbote,’ making it a misdemeanor for a victim to accept the return of stolen property or to make other arrangements with a felon in exchange for an agreement not to prosecute.”6

Theftbote has evolved into what is now referred to as “compounding a crime,” which is committed when a crime victim accepts restitution in lieu of punishment. As Barnett explains, “In the quest to punish criminals, whether for retributivist motivations or to protect the public, crime victims become mere means to the ends of the institutions created to punish.”7 If one takes the purpose of the criminal justice system to be the deterrence of wrongful acts and protection of victims, it is strange indeed that the very system which is supposed to offer hope for relief would instead create new obstacles to the righting of wrongs. However, this development should come as no surprise to those who remember that criminal law came into its own as a means of fattening the king’s coffers, not as a bulwark against predation by the unjust.8

Because I recognize that government courts serve primarily to advance the interests of government power, my goal as an aspiring attorney is to use what I can from my legal education to work against the State—to oppose government action where private, voluntary action would better serve the interests of justice. It is the subsequent question—“How can private actors be entrusted with the provision of public goods like defense and justice?”—that makes a book like The Law of the Somalis important.

Van Notten, a Dutch lawyer, lived with the Somali people and applied his legal expertise to learning and understanding the Xeer, the traditional Somali legal system that has developed over thousands of years. The Xeer is remarkable because it is not dependent on a central government authority, but instead relies on familial, economic, and cultural pressures to insure that justice is done. While the details of the system leave some things to be desired—equal rights for women and greater alienability of property outside of the clan, for starters—it is based on core principles which are admirable and reasonable:

1) The law is separate from politics and religion

2) The law has a built-in method for its development

3) There is a plurality of jurisdictions and norms

4) Government personnel must abide by the law

5) The law originates in the reason and conscience of the community

6) Judges are specialists, each with his own method of analyzing the Law9

These core principles are admirable enough, and familiar to those already acquainted with American law: The first protects the elevated place of rational discourse in judicial decision-making. The second hearkens to the English Common Law, which too provides for its own development. The sixth recognizes that judging legal disputes is rightfully a specialized vocation deserving of professional experts in the law.

However, number three’s legal plurality is somewhat alien to those accustomed to hierarchical, monolithic legal systems. Likewise, number four conflicts with the English concept of sovereign immunity, where as a matter of policy certain state actors are shielded from liability that would, save their position of favor with the state, otherwise leave them vulnerable to remedial action from the courts. Number five reminds one of the traditional English and American jury system before the Sparf decision that deprived the petit jury of the power to determine both law and fact,10 a power it had enjoyed since Bushell’s Case in 1670.11

The most important role of van Notten’s book, besides offering a glimpse at the legal culture of a distinctly independent people who have successfully resisted centralized government authority since 1993, is to offer one contemporary example of a legal system that is the result of spontaneous order and not the edict of a person in power. Although no utopian vision, van Notten provides us with proof positive that emergent systems arise to satiate demand for solutions to even complex social problems like inter-cultural dispute resolution.

Now it is left to experts in law and security to work to craft market mechanisms,12 to render obsolete the inexpedient government models that cost too much in terms of both dollars and individual liberty. In the meantime, I plan to apply my convictions as a criminal defense attorney who is uniquely qualified to vigorously represent any client, no matter how deserving of disdain. Imprisonment is at worst criminal and at least counterproductive. Even where a criminal defendant is guilty of wrongdoing, imprisonment frustrates efforts by victims seeking restitution. Slaves, even slaves whose enslavement falls within the Thirteenth Amendment exception “as a punishment for crime where of the party shall have been duly convicted,” tend to be slow earners, and so less capable of making their victims whole. And again, curing the damage caused to the victims is supposed to be the aim of the whole exercise. As a criminal defense attorney, I can rest assured that my opponent will always be the state, and thus that my cause will always be just, whether my client is innocent or guilty of the crime charged. More than that, though, working to put less-than-innocent people on the street gives victims a better shot at actually securing restitution.

1 Davidson, James. "Somalia and Anarchy." Formulations. Free Nation Foundation. Issue #30 (Summer 2001). [URL: http://libertariannation.org/a/n030d1.html ]

2 See generally, Rothbard, Murray N. The Ethics of Liberty. New York: New York University Press, 1998.; Barnett, Randy E. The Structure of Liberty. New York: Oxford University Press, 1998.

3 de Molinari, Gustave. "The Production of Security." Journal des Economistes. February 1849. J. Huston McCulloch, trans. 1977. [URL: http://praxeology.net/GM-PS.htm ]

4 Tannehill, Linda and Morris. The Market for Liberty. New York: Fox & Wilkes, 1993.; Hoppe, Hans-Hermann. Democracy: The God That Failed. New Brunswick, New Jersey: Transaction Publishing, 2001.; Murphy, Robert P. Chaos Theory: Two Essays on Market Anarchy. New York: RJ Communications, 2002.

5 Rothbard, Murray. The Ethics of Liberty. New York: New York University Press, 1998. p. 87.

6 Benson, Bruce. The Enterprise of Law: Justice Without the State. San Francisco, California: Pacific Research Institute, 1990. p. 62.

7 Barnett, Randy E. The Structure of Liberty. New York: Oxford University Press, 1998. p. 236.

8 Benson, p. 52–53.

9 Van Notten, Michael. The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa. Asmara, Eritrea: Red Sea Press, 2006. p, 34.

10 Sparf v. United States, 156 U.S. 51, 63 (U.S. 1895).

11 Parmenter, Andrew. “Nullifying the Jury: ‘The Judicial Oligarchy’ Declares War On Jury Nullification.” Washburn Law Journal. Vol. 46, p. 379. Winter 2007. p. 382.

12 Perhaps a “Subscription Patrol and Restitution” insurance model, as suggested in Guillory, Gil and Patrick C. Tinsley. “The Role of Subscription-Based Patrol and Restitution in the Future of Liberty.” Libertarian Papers. Vol I. 2009. [URL: http://libertarianpapers.org/2009/12-the-role-of-subscription-based-patrol-and-restitution-in-the-future-of-liberty/ ]

(Also published at Strike The Root on 22 April 2009 and LewRockwell.com on 28 April 2009.)

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