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Abstract
There is some truth in the statement that in Somalia the periods and regions least affected by struggles about the state have provided better living conditions than the ones more affected by statehood. It is also true that the state, especially in the final stage of its existence leading up to its collapse in 1991, was of a predatory nature and, rather than contributing to development, affected it adversely. There is no doubt that no state at all is better than some of the experience the Somali have made with actually existing statehood (but not in comparison with many alternative courses history could have taken). In some recent writings about Somalia, however, the advantages of statelessness have been grossly overstated, and the disadvantages of not having a functioning nation-state in a world of nation-states have grossly been neglected. Especially the Somali customary law (xeer) has been romanticized and praised as a cost-efficient mechanism for the provision of ‘justice’ in the absence of statehood. This paper examines the actual working of customary law and finds it to be based on negotiation, often between unequals with a number of structural advantages for the demographically, economically and militarily stronger side. Xeer does regulate the use of violence to a degree, but it does not produce ‘justice’ in the universal or Western sense of the term, as some of its advocates seem to assume.
Notes
1. Sigrist, Regulierte Anarchie.
2. Weber, Wirtschaft und Gesellschaft, 678.
3. Evans-Pritchard, The Nuer.
4. Chakrabarty, Social and Political Thought of Mahatma Gandhi, 138.
5. Anderson describes for the Kalenjin cluster of Western Kenya how representations of Kalenjin moral economy which tolerated or encouraged cattle raids served the British colonialists as justifications to respond by measures of collective punishment. He also describes how these ideas became obsolete and these instruments inefficient when stock theft became a non-tribal and commercialized form of organized crime; Anderson, “Stock Theft and Moral Economy.”
6. Where local adat rules according to a more widespread interpretation clearly contradict the shari c a, the local defenders of adat tend to claim that this is not so and that their local practices are compatible with shari c a or even part of it.
7. The family law is, however, not the uncontested core domain of shari c a in all Muslim societies. Among the Minankabau of Western Sumatra matriclan exogamy and matrilineal inheritance are enforced as part of the adat law although the contradictions with the shari c a are obvious. It is no surprise that this is a contested matter between the defenders of local law and the protagonists of globally unifying tendencies within Islam; Benda-Beckmann and Thomas, Change and continuity in Minangkabau.
8. Cf. cUthmaan dan Fodio (cUthmaan ibn Fudi) who, in turn, cites a vast body of Islamic scholarly opinion. The argument has been summarized by Schlee, “Les Peuls du Nil,” 210–213.
9. Le Sage, Stateless Justice in Somalia, 14.
10. Le Sage, Stateless Justice in Somalia, 16f., citing Lewis, Pastoral Democracy, 217.
11. King, “Rationale for Punishment.” On the logic of punishment and the history of this idea, cf. also Albrecht, “Strafrecht und Strafe” and Härter, “Strafen mit und neben der Zentralgewalt.”
12. Diya is the Arabic term for wergild, blood-money or compensation. The Somaliterm is mag.
13. Schlee, “Regularity in Chaos.”
14. Luling, “Come back Somalia?”; Luling, “Genealogy as Theory, Genealogy as Tool,” 478.
15. Hoehne, “Political Orientations and Repertoires of Identification,” ch. 6.
16. Hoehne, “Political Orientations and Repertoires of Identification,” ch. 6.
17. Hoehne, “Political Orientations and Repertoires of Identification,” ch. 6.
18. Hoehne, “Political Orientations and Repertoires of Identification,” ch. 6.
19. Schlee, “Regularity in Chaos,” 260; Schlee and Turner, “Rache, Wiedergutmachung und Strafe,” 64.
20. Schlee, How Enemies are Made, 168.
21. Samatar, “Islamic Courts and Ethiopia's Intervention.”
22. Barnes and Hassan, “Rise and Fall of Modadishu's Islamic Courts.”
23. Barnes and Hassan, “Rise and Fall of Modadishu's Islamic Courts.”, 151; also 157.
24. Le Sage, Stateless Justice in Somalia, 17.
25. Oral communication.
26. The shari c a recommends compensation and reconciliation, without, however, specifying the amount, which is therefore a matter of local custom and varies accordingly. Collections of ahadith (sayings and doings of the Prophet) which claim otherwise tend to be from relatively recent collections and enjoy little supra-regional authority. What is meant here by application of the sharica is the insistence on the punishment it provides, not the foregoing of punishment it recommends.
27. Hoehne, “Political Orientations and Repertoires of Identification,” ch. 6.
28. Hoehne, “Political Orientations and Repertoires of Identification,” ch. 6., referring to Human Rights Watch, Somalia Faces the Future and Reno, Somalia and Survival in the Shadow, 22–32.
29. Schlee, “Somali Peace Process,” 153; Bradbury et al., Human Development Report, 176.
30. The last president of the whole of Somalia. He was toppled in early 1991 and eventually left for Nigeria, where he died in 1994.
31. Le Sage, Stateless Justice in Somalia, 21.
32. Personal communication in Hargeysa, July 2002, cited in Schlee, “Somali Peace Process,” 153.
33. Hoehne, “Diasporisches Handeln in Bürgerkrieg und Wiederaufbau Hoehne”; Hoehne, Diasporic Engagement.
34. Contini, “Evolution of Blood-Money,” 79. Contini cites Lewis, Pastoral Democracy, 161, in this context.
35. Hoehne, “Political Orientations and Repertoires of Identification,” ch. 6.
36. Schlee, “Somali Peace Process.”
37. The sign ‘< ’ stands for ‘subgroup of.’
38. Schlee, Conflict Analysis in Bakool and Bay, 17.
39. Schlee, Conflict Analysis in Bakool and Bay, 20.
40. Ciabarri, Dopo lo Stato.
41. Leeson. “Better off Stateless.”
42. What Leeson neglects in his comparison is that statelessness may describe the political situation within Somalia, but when it comes to economic measures, the impact of the remittances from the Somali diaspora is considerable. Often these stem from welfare payments by states in other parts of the world. The beneficial effects of these transfers cannot be counted among the advantages of statelessness because of their origin in statehood, even the welfare state; Hoehne, “Political Orientations and Repertoires of Identification,” 445.