Almost ten years ago, the Somali nation abolished its central government and thus became a stateless nation.
Almost ten years ago, the Somali nation abolished its central government and thus became a stateless nation. As a result, the Somali people are now more peaceful and also becoming more prosperous than before. This unique event in the political history of the world deserves all our attention. This is particularly true now that everywhere people are asking for an alternative to democracy. That system became popular because it promised less taxation and more freedom than existed under monarchy. But it failed to deliver on that promise; taxation now takes on average half of every-body’s wealth without rendering much in exchange. And its regulations severely limit the freedom and productivity of the citizens. It is estimated that people would create 4 – 8 times more wealth without these democratic regulations.
Let me first give you a bit of political history of the Somali people, an East African nation which probably numbers some 15 million people at present. This nation inhabits a large semi-arid territory that has the same size as France. It measures approximately 360.000 square miles or one million km2. Shortly after the Suez Canal was dug in 1869, the Somali territory was invaded and occupied by four colonial powers: Britain, Italy, France and Ethiopia. When the colonial period came to an end, each of these four parts was given a central government, to be managed by local politicians. These politicians had been trained by the respective colonial powers. In January 1991, the joint central government of former British and Italian Somaliland collapsed and was dismantled. At the same time, each of the odd sixty Somali tribes reaffirmed its political independance. Their tribal chiefs assumed the responsibility for maintaining law and order.
This ‘law and order’ has nothing in common with democracy. It is best described as ‘a free market for the supply, adjudication and enforcement of law’. The Somali law consists of customary laws. These laws exist in many countries, but only in Somalia are these laws the supreme law. As one can imagine, customary laws come in two kinds, those that oppress the people and those that recognise their right to life, liberty and property. In Somalia, most customary laws are of the latter type. Except for a few rules, the Somali laws recognise everybody’s right to private property, which includes the principle of free trade. In so doing, the Somali custo-mary law comes quite close to natural law. That is why, for a good under- standing of Somali law, it helps to have some knowledge of natural law.
Before defining ‘natural law’ we will enquire what is meant by the term ‘law’. Most lawyers think that the etymological root of this term is the Roman word lex, which means ‘to conscript’, ‘to impose’. But the true origin of the term ‘law’ is the Germanic word laeg, which means ‘order’, ‘peace’, as well as ‘friendly relations’. Its opposite ‘orlaeg’ survives up till today in the Dutch language, in the word oorlog which means ‘war’, ‘unfriendly relations’. So, ‘law’ denotes a particular condition of life which we could describe as one of peace and friendly relations between individuals. Indeed, originally, ‘law’ did not have the meaning which it has today, i.e. a command, a rule, a norm or other directive statement. Rather it denoted a condition of life that people may, and in fact still do, value.
Now, the term ‘natural law’ denotes this ancient meaning of the term ‘law’. In fact, ‘natural law’ refers to a value that people have known since time immemorial without however identifying its exact nature and the precise reason people should respect it. I will try to deal with these two questions by summarising the teachings of Frank van Dun, who teaches philosophy of law at the Universities of Gent and Maastricht.
The concept of natural law was developed over a period of 2500 years by scholars who observed the great variety of political systems. Which one could be called mankind’s natural order, they asked ? In their search they imagined an order that would be ideal. One in which no person would be able to hide for long his responsibility for what he said, did or brought about. Consequently, there would be no confusion as to who owes a debt to whom, who was and who wasn’t a participant in some particular undertaking, who participated voluntarily and who was forced or tricked to participate, etc., etc. In addition, these scholars imagined that in such an order people would not suffer injurious actions of others, and be able to live their lives and enjoy their property in an environment of peaceful, friendly relations. And that people would honour their contracts and provide full restitution or compensation when they would disrespect this order and cause harm to others.
Such a set of characteristics surely constitutes an order – even an attractive one – but is it also mankind’s natural order ? We can answer in the affirmative only when the distinctions that constitute this order are facts of nature, i.e. objectively ascertainable categories.
Facts Of Nature
Except for Siamese twins, human beings are distinct, indeed separate beings. This ‘separateness’ surely is a fact of nature. Whatever the differences between people – in age, length, talent or other characteristics ‘given’ to them by nature – they are all alike inasmuch they are genetically endowed with the capacity for action, speech, thought and rational communication. Also that capacity is a fact of nature. People need to exercise this capacity for their existence and survival as a human being. This exercise is just as constitutive of one’s place in the world of human beings as one’s physical being. This place, which consist of the space that coincides with one’s physical being, one’s activities and the fruit of one’s labour, therefore naturally belongs to people. Hence its name of ‘natural right’. Philosophers have asked themselves if this natural right really exists. They argued that because of their capacity for independent action, speech and thought, human beings can, and indeed must, think, speak and act. Then they asked whether one can deny the existence of the right to engage in these activities. But one can do so only while thinking, speaking, acting. Therefore, they argued, this right cannot be denied and therefore it exists. Other names for this place or space are ‘freedom’ and ‘property’, which are therefore synonyms of the term ‘natural right’.
A person can add to his natural right by exercising his capacity for action, speech, thought and communication but only insofar as he respects the natural right of all other people. Whatever a person adds to his place in the world while disrespecting the place of other people is not called property but plunder or loot. In order to find the exact limits to one’s natural right, we must return to the right to think, speak, judge, choose and act. One cannot engage in these activities without having the exclusive control of one’s own body. Therefore, this control is part of our natural right. Also, when we appropriate objects not belonging to others we do not interfere with someone else’s right. The same is true when we conclude mutually agreeable contracts with consenting others. These two activities are therefore also part of one’s natural right. And last, one has of course the right to defend these rights. These five rights are a human being’s fundamental rights, from which all other natural rights derive. No natural rights can exist outside of this framework.
The order which respects natural rights is usually called ‘the natural order of human beings’. That is an appropriate name because natural rights respect the facts of nature. People who value this order may be inspired to formulate certain principles and even rules of conduct for establishing and maintaining such an order. One could call these rules ‘natural laws’. One should be aware, however, that such rules can have no other finality than to define the concept of natural rights and their concomitant obligations. Natural laws are never commands.
In the light of the above, it should be clear that one can in principle give an objective answer to questions about the extent of any person’s natural right simply by referring to objective facts of nature, i.e. someone’s body, work and achievements. And the same is true for the question whether or not a person’s sayings or doings infringe upon another person’s natural right.
Respect For Law
Having defined the concepts of natural law and natural rights, we can now turn to the question why any human being should respect this law, these rights. This question typically arises in the context of human interaction, where one person faces another. The answer becomes evident when one argues that one need not respect these rights, because that would involve one in a dialectical contradiction. For the argument will run like this: “I respect you as a human being, therefore I am going to appeal to your reason and knowledge to argue that I ought not respect you as a person.” This contradiction shows that there is no way in which the proposition that people should respect each other can be defeated in a rational argument between them. And if it cannot be defeated, the argument that people should respect each other must be true. And that respect is precisely what natural law is all about. Natural law is the order in which people are prepared to enter into rational argument with each other and carry out the commitments they made to each other.
Consequently, if we take ourselves seriously, we cannot escape the conclusion that we are obliged to respect one another. That means that we are bound to respect others as long as they respect us, and that we have the right to be respected by others as long as we respect them. And if someone stops respecting others, he makes himself an outlaw and can be forced to respect their rights.
We have just seen that the concept of natural right comprises two values, one’s part of the natural world (body and property) and one’s activities in that world provided one respects the natural order (liberty). John Locke’s famous formula ‘life, liberty and property’ is a useful summation of that right. Natural rights should not be confused with the so-called ‘human rights’ of the United Nations’ Universal Declaration of Human Rights of 1948. That declaration approves of any democratic government that arranges everybody’s life, liberty and property according to its own estimation of what is feasible and appropriate “in accordance with the organisation and resources of each state”. This empowerment of democratic governments hinges on the false belief that human beings have an enforceable ‘right’ to have their needs and desires satisfied at the expense of others. That belief amounts to saying that human beings have the ‘right’ not to respect others. We have already seen that, from a philosophical point of view, that belief is absurd.
It should be clear by now that ‘natural law’ in the sense of ‘the natural order of human beings’ is not a question of idle speculation, but of natural facts. This leads to the question whether there exists a political system that respects these facts. Indeed there is such a system. It differs from democracy and similar systems in that its government has no special powers. It is denied any powers, privileges and immunities that are also denied to human beings. That means that a kritarchy’s police forces cannot lawfully use their weapons and coercive powers except for maintaining natural rights. In contrast with their counterparts in a democracy, the courts and the policemen of a kritarchy are not part of a coercive monopoly. In a kritarchy, every person is entitled to offer judicial and police services to willing others; no person can be forced to become a client of any court of law or police force against his will.
A kritarchy does not have subjects and rulers. It lacks a government in the modern sense of the word, that is an organisation with coercive powers that claims a right to obedience of those who inhabit its realm. Governing and taxing people are not functions of the political system of kritarchy. People are left free to govern their own affairs, either individually or in association with others. Indeed, freedom is the basic law of a kritarchy.
The term ‘kritarchy’, mentioned in several well-known dictionaries, is compounded from the Greek words kriteis (judge) or krito (to judge) and archeh (principle, cause). It was coined in 1844 by the English author Robert Southy. In its construction kritarchy resembles terms like monarchy, oligarchy and hierarchy. According to its etymological roots, kritarchy is the political system in which judges, or their judgements, are the ruling principle. Similarly, a monarchy is a system in which one person is the ruling principle or first cause of every legal action. In an oligarchy, a few persons, acting in concert but without a fixed hierarchy among them, are the source of all human actions. This olicharchy is what we have in a modern democracy. The members of a democratic parliament have equal standing and their joint decisions are supposed to bind all citizens.
Unlike monarchies and oligarchies, kritarchies do not establish political rule. The judges of a kritarchy do not legislate but find ways and means to settle conflicts and disputes in a manner that is consistent with the natural order of human beings. That order is understood to be objectively given (it consists of people who respect each other’s space) and not something that answers to whatever desires or ideals the judges may have.
In contrast to other political systems, the judges in a kritarchy have no subjects; They do not have prosecutors who drag people before their benches. They cannot ‘pick’ their subjects. Instead, they are ‘picked’ themselves by people desiring to have their conflicts and disputes resolved by their judicial judgements.
The distinctive characteristic of a kritarchy is therefore that it is a political system without political rule. Its judges enjoy no privileges or special powers. They do not rule the people. Their only concern is to protect the voluntary, natural order of human beings.
There are many historical and even recent examples of kritarchy or near-kritarchy. Also there have been attempts to use constitutions (such as the Magna Charta and the Bills of Rights in England, the original constitutional amendments in North America and the French Declaration of the Rights of Man and of the Citizen) to introduce elements of kritarchy as checks on the powers of oppressive governments. At the end of the second millennium before Christ, the Jews lived in a system described in the biblical book of the Judges. Their ‘judges’ were not judges in the technical sense of the modern legal systems but rather respected men who provided leadership and counsel without having the power to coerce or tax. Similar kritarchies existed among the Celtic and Germanic peoples both before and during their confrontation with Roman imperialism. Kritarchy was firmly established in medieval Iceland, Ireland and Frisia. In the first half of the nineteenth century, the European settlers in the Mid-West and Far-West in North America developed their own brand of kritarchy. In Africa and Asia, tribal societies have continued to the present day to adhere to some form of kritarchy if they have not been submerged in the governmental structures imposed by the colonial powers or by the indigenous politicians who took over from them.
While these historical examples may suggest that kritarchy is a primitive political system, it should be borne in mind that most kritarchies fell victim to military lords. Often, these lords turned ostensibly temporary structures for the mobilisation of men and resources in times of war into a permanent apparatus of political rule. They organised this rule in such a way that their subjects are not given opportunities for its abolition. They can only choose between various types of political rule. Kritarchists have always been aware of the artificial and destructive character of alternative political systems. The fact that a given kritarchy lost out to a destructive system doesn’t make kritarchy primitive. It may well be that a given economy progresses despite a particular political system rather than because of it. Economic progress may well coincide with political regress.
Defects Of Democracy
Increasingly, people complain about the results of democracy. The problem is that many think that democracy is in itself a lawful system and that the results will improve once its defects have been remedied. However, its main defect is that it enables some people to govern all others regardsless of their consent. There is no authority in a democracy which will listen to people whose natural rights have been violated. Democratic governments monopolise the police and the judiciary precisely because they want to prevent that natural rights are invoked against democratic rule.
In a democracy, government officials are thus invested with powers which the people who empowered them are not allowed to exercise. In a natural world, that is not possible. Democracy tries to ‘justify’ its monopoly by creating a fiction, by creating artificial people called ‘citizens’ and artificial rights called ‘human rights’. Democracy holds that these ‘rights’ are of a conflicting nature. This, one can read in Article 29 of the Universal Declaration of Human Rights. And because of this conflicting nature, democratic governments give themselves special powers to curtail these ‘rights’. It is thus that democratic governments bypass and deny natural law: by introducing a different concept of law, one that makes democracy seem lawful.
A Look At Somalia
The Somali political system does not impose political rule upon the Somalis. Therefore, it looks like a kritarchy. However, the Somali law system shows several deviations from the natural law. Therefore, the present order of the Somalis is best qualified as a near-kritarchy. Several questions arise: How it was brought about, what troubles occurred, what problems arose, what solutions exist and what has been achieved thus far.
1. The decision
Let’s first look at the decision of the Somalis to abolish the central government. By whom was it taken ? Not by that government of course. Particularly not by a parliament or by way of a referendum. Rather, it just happened, and it could happen because there was a popular consensus. This consensus was formed in 1978, when the Somali central government had waged, and lost, a war against its neighbour Ethiopia. Ever since, the population was ready to return to its previous political system, that of kritarchy. The opportunity for this return arose 13 years later, when the population had chased away its dictator. By a mere stroke of luck, neither of the two candidates to succeed him was willing to give in to the other. It was a deadlock similar to the one that arose in the same year between Yeltshin and Gorbatchov in Moscow.
As a result of this limbo in Somalia, the employees of the Somali government were no longer paid. These were anyway seen as criminals by the population and chased away, just as their dictator. After these employees had gone back to their village of origin, the population dismantled all government buildings, including the factories. This was partly done out of banditism, partly in a conscious effort to prevent the politicians from reviving the central government.
Not all results of this change-over to a new political system were positive. Like in the Soviet Union, the change-over offered bandits an opportunity to commit crimes with impunity. Also, former generals and colonels lined up with former politicians and soldiers in an effort to establish monopoly governments on a town-by-town basis. They imposed taxes and some of them even established quasi diplomatic relations with foreign governments.
Meanwhile, the leaders of Somalia’s new political system were faced with a number of tough problems:
3.1. In the urban areas, where most modern business is conducted, the customary laws had been replaced by statutory laws. Consequently, the customary laws, which had continued to exist in the rural environment, have not been developing in tune with the requirements of the global economy. And the tribes, which prior to independence were mainly vehicles to protect the customary law, had now also become political pressure groups.
3.2. Many Somalis had opted out of the customary law system during the heydays of the Republic of Somalia and were now unwilling to submit themselves again to the customary laws and institutions.
3.3. Foreign reporters are filling the newspapers with horror stories in order to illustrate their personal view that without a monopoly government nation is doomed. These horror stories discourage foreigners from investing their time, money, knowledge and skills into the Somali economy.
3.4. Somali intellectuals are writing books and articles in which they present tribal government as archaic and propose to re-establish monopoly government.
3.5. Somali Muslim fundamentalists promote the idea of replacing the tribal system by a theocracy. Their militants occasionally wage small wars against what they conceive as obstacles on the road towards such rule.
3.6. The United Nations invaded Somalia with a multi-national army of 30.000 to re-establish a democracy. In addition, it launched a diplomatic campaign to enlist all former politicians in its effort to re-establish a nation-wide monopoly government. Also, it has trained thousands of Somalis for jobs in such government and it is setting up discussion centers in the villages to direct the local people towards democracy.
3.7 And last, there are the many locations where the politicians had confiscated land from the tribes and given to their loyal supporters. The tribes were now repossessing those lands.
People in the Western world typically think in terms of ‘problems and solutions’. They ask what the Somalis should now do. We will try to satisfy this curiosity while remaining conscious of the fact that the largest political unit, i.e. the unit which could implement any ‘solutions’ is the jilib, the extended family. One also has to be aware that there will always be opponents to the natural order of human society. And that these opponents often are not interested in rational arguments. Therefore, our answer will concentrate on the possibilities for strengthening the proponents of the present order rather than for weakening its opponents.
The best way to strengthen the present system of law and order of the Somalis is to fully expose it the hustle-bustle of daily life. Their law system has a built-in method for adapting itself to changing circum-stances. The more people engage in trade, the quicker the law will adapt itself to the requirements of a modern, free market society. This adaptation of the law can be accelerated in two ways. One is to publish books about the Somali law and to establish documentation centres for jurisprudence. In this way, the laws of the odd sixty Somali tribes will gradually merge into one single body of rules for all Somalis. The other way is to establish free ports among the Somalis that will particularly welcome foreign investors. That will increase the interaction between local and foreign business people and bring about a cross-fertilisation of different ethics, business methods and laws. Two tribes have already set the first step towards creating such free ports, the Majerteen in Bosaaso and the Samaron in Awdal.
5. Positive Results
Almost ten years have passed since the Somalis changed their political system. Peace has been established in most of the country and prosperity is slowly but surely increasing. This peace has been achieved by upholding the Somali customary law. Therefore, it is of interest to analyse this law in some detail.
The five main characteristics of the Somali law are:
* No punishment for crimes, only restitution or compensation.
* No public prosecutors, no victimless crimes.
* Fines are limited and must be paid to the victim or to his family.
* Every person is insured for his liabilities under the law.
* Judges are appointed by the litigants, not by ‘society’.
The following comments should be given on each of these features.
5.1 Restitution And Compensation Instead Of Punishment.
The Somalis know that punishment does not work. They are aware that democracies imposing fines and imprisonment on their criminals. But that does not negate the original violence perperated against victim. It simply contributes to the total violence committed in the world. Secondly, such punishments rarely deters people from committing crimes. If it would, we would have a crime-free world today. Thirdly, it is generally accepted that prisons are a place were people learn how to commit crimes. And the huge cost of maintaining prisons is borne by the tax payers, not by the criminals themselves. Therefore, it makes sense that the Somali law requires little more from criminals than that they restitute the rights they violated. If restitution is impossible, the criminals must offer compensation.
5.2 Defining Crime.
In a democracy, almost any conduct can be declared a crime. Thus, it can be a crime to smoke something more flavoursome than Marlboro, to read something more spicy than Playboy, to criticise the government, to use a monetary unit that it has not approved, to evade the military draft, etc. etc. Democracies ‘justify’ this plethora of prohibitions by calling them ‘crimes against society’ even though there are no real victims. On the other hand, there are democracies which close their eyes when women are raped or beaten, or when policemen the police detains and tortures innocents. All these prohibitions and immunities are authorised by a legislature. Therefore, it makes sense that the Somalis have no use for legislators and public prosecutors. Under Somali law, only the victim of violence, or his family, can start a criminal procedure. Indeed, the Somalis hold that there is no crime when nobody’s natural rights have been violated.
5.3 Fines To The Victim.
In a democracy, the government can impose almost any type and level of fines, and stipulate that these are due to the government. Thus, it generates considerable revenue for itself. This in turn constitutes an incentive to promulgate ever more crimes and to increase the fines as much as possible. Therefore, it makes sense that the Somali law stipulates that fines -imposed for intentional violation of someone’s rights – shall be limited to the value of that which has been destroyed and that they must be paid to the victim, rather than to the court of law or the tribe as a whole.
In a democracy, there is no obligation to insure oneself. Thus, there is a large number of people that have nothing to loose by committing a crime, except the possibility that they will have to spend some time in a prison.
This situation surely constitutes an incentive to commit crimes. Therefore, it makes sense that the Somalis require that every person must be insured and that he permanently retains a representative, i.e. someone who will act on his behalf if he has committed a crime or has become a victim of one.
In a democracy, the courts of justice are established by the government and the judges are in the pay of the government. This is done to assure that those courts will not accept any complaint or defence that is based on natural rights. As a result, the government can promulgate almost any rule that infringes upon these rights. Therefore, it makes sense that the Somali law stipulates that the courts of law must apply only those rules which the population has voluntarily accepted as a custom. In addition, the Somali law recognises the right of every person to ignore a court of law that does not have his personal representative on the bench. This assures that only those judges will be asked to sit on a bench who respect the law.
As mentioned above, this system of law has produced peace among the Somalis and set the stage for a return to prosperity. But that is not all. It has done so at almost no cost to the nation as a whole, and without taxation. The judges and policemen of the Somalis do their job on a part-time basis, and without remuneration. It is considered to be a great honour to be a judge. Indeed, in a kritarchy, the best people tend to get to the top of ‘the system’, whereas in a democracy…
Another virtue of the Somali system is, that it is fairly immune against political manipulation. Hence, no laws exist that serve primarily the interest of a particular political pressure group. Also, the Somali law tends to be in tune with the values held by the entire population because it has a built-in system for adapting itself to those values.
There are several features of the Somali law which are not in tune with natural law. We will not specify these features, however. Our focus is on how the Somalis managed to bring about – in a relatively short time – a complete change their system of governance. The answer is that their new system is in fact their old system. Indeed, in the rural areas, which is probably 90 percent of the country, the Somali customary law has always continued to command respect and the customary courts of law have never ceased to be operational there. In this respect, the situation in Somalia resembles that of North America in 1776. The American Revolution never was a revolution. Rather, it was an effort of the colonists to preserve the freedom they had enjoyed during the preceeding 150 years. Likewise, the main concern of the Somalis since the demise of the dictatorship was not to innovate, but to preserve their indigenous system of governance.
Lessons To Be Learned
The Somali experience shows us that there exists a political system that is better than democracy. It is called kritarchy, appears to be viable and promises to have universal application. The Somalis have shown how to effectuate the changeover to this new system despite the massive efforts of the UN to re-establish democracy in Somalia.
The main lesson to be learned is probably that democracies will never give in to pressures to abandon that system. Rather, they will resist until their system collapses. It is common knowledge that when a dictator emerges in a democracy and doesn’t try to conquer other countries, the democracies of the world will be patient. They will simply wait for the day that the citizens of that country have mustered enough powers to revert to democracy. But if a nation wishes to try out kritarchy, it looks as if no cost is too high to re-establish democracy.
Thus, the people who wish to changeover to kritarchy in their country should prepare themselves for the day that democracy will have run out of both popular support and money. At that moment, politics will develop in the direction of either dictatorship or kritarchy. It is that moment that the Somali experience can offer us some guidance. As we have seen, the Somalis were able to change to kritarchy because of three things. They had a consensus throughout their country to abolish the system of central government. Secondly, the operators of kritarchy were on the spot and ready to put their system into practise. And the democratic governments of the world were badly organised for a joint effort to overrun Somalia.
For kritarchy to prevail, it is indeed necessary that its ‘operatives’ assume their responsibilities and form the country’s new supra-structure. Who are these operatives ? Not only the private judges and policemen, but also, and even primarily, the insurance companies. In a kritarchy, everybody is insured for his liabilities under the law. Those who are not insured will find it almost impossible to do business or find employment; they will be treated as outlaws. In a kritarchy, a violation of the law may entail higher insurance premiums for the perpetrator. That constitutes a strong incentive for respecting the natural rights of other people. The insurance companies themselves also have an important stake preventing crimes and torts from being committed. The less crimes and torts, the less they will have to pay to their customers.
It is heartening to see that in Europe and the USA there are an increasing number of private companies that offer the judicial and police services.
In addition, the insurance companies are increasingly covering comprehensive liabilities under the law. Given the growing dissatisfaction with democracy, it is indeed no exaggeration to say that the trend towards kritarchy has already started. The Somali experience shows how important it is that these operatives are ready. If there had not been the traditional laws and institutions ready to take over from the state, the Somali nation might have fallen into chaos. And the UN would surely have succeeded in its plans to re-establish a democracy among the Somalis.
In addition to judges, policemen and insurance companies, a viable kritarchy depends on entrepreneurs skilled in supplying infrastructure such as roads, transport, communication, education, etc. These entrepreneurs, one can already find them in droves with the companies and universities that already now supply these services on a free market basis. The faster these companies and universities will grow and spread, the easier the changeover to kritarchy will be. And last, there is the question of a consensus among the population in favour of kritarchy. To some extent, such a consensus will depend on the presence of articulate opinion makers. But the Somali experience shows that it will be particularly helpful that the democratic government makes one or two big mistakes. For many people will choose kritarchy not so much for its many virtues, but rather because they think it will have less vices than the current political systems. Through bitter experience, they know all about the endless seesaw between democracy and dictatorship.
Amsterdam, April 24, 2000