Somali Law
ÒFew
societies can so conspicuously lack those judicial, administrative, and
political procedures which lie at the heart of the western conception of
government. The traditional northern Somali political system has no chiefs to
run it and no formal judiciary to control it. Men are divided amongst political
units without any administrative hierarchy of officials and with no instituted
positions of leadership to direct their affairs.Ó
(Lewis 1961 p. vii)
Somalia was created in 1960 out of the
colonies of British Somaliland (north) and Italian Somaliland (south). 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 and was followed by the
dictatorship of Siad Barre. He was ousted in 1991, 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, especially those near the capital of Mogadishu, to engage in a
power struggle aimed at putting themselves in the very profitable role of
rulers instead of the very unprofitable role of ruled. Second, outside powers,
acting through the U.N. in the belief that the country needed a central
government, attempted to reestablish one by military force. The result has been
an extended period of violence and chaos, especially in and near the capital,
by groups acting outside of, and often in violation of, the traditional legal
system.[1]
Elsewhere, especially in what had been
British Somaliland and now calls itself simply the Republic of Somaliland,[2] the traditional system of
customary law reestablished itself. While Somaliland has a
government—arguably created in part as a so far unsuccessful attempt to
persuade foreign states of its legitimacy—it is a government based on traditional
institutions, with an upper house of clan elders, and one that seems for the
most part to defer to customary law privately enforced in the traditional
manner—the same policy followed earlier by the British officials.
This chapter is based primarily on the
work of I.M. Lewis, a British anthropologist who has been writing about Somalis
since the 1950Õs, especially on the detailed description of the institutions of
the northern Somali pastoralists in his A Pastoral Democracy: A Study Of Pastoralism And Politics Among The
Northern Somali Of The Horn Of Africa. My other source is The Law of the Somalis, written by
Michael Van Notten, a Dutch legal scholar who married a Somali wife and lived
as part of the Samaron clan of North-west Somaliland for twelve years, until
his death in 2002. The book was edited and published by Spencer MacCallum, a
social anthropologist with an interest in stateless societies. As Van Notten
makes clear, his description applies in detail only to the area where he lived
(Awdal), but traditional law elsewhere, while not identical, is generally
similar.[3]
Both of my
sources are concerned primarily with the pastoralists of northern Somalia, and
it is their legal system I will be describing. The institutions in the south,
where camel herding is to a considerable extent replaced by agriculture, appear
to be somewhat less based on kinship, more on geography.[4] Van NottenÕs observations
were from about 1990 to 2002; Lewis based his detailed account on observations
made in the 1950Õs, when northern Somalia was still under British control. The
accounts are broadly similar, allowing for the difference in the time periods
and the fact that Van Notten is dealing with a more restricted area.[5]
ÒPoliticalÓ
Structure
The institutions through which the
Somali enforce rights and settle disputes are based on two
principles—kinship, primarily agnatic kinship (defined through the
paternal line) and contract. 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. A clan,
which may number in the hundreds of thousands, consists of individuals all of
whom[6] are believed to be
decendants of a common ancestor in the paternal line, possibly twenty or thirty
generations up. 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, ceteris paribus.[7] ÒAs the Somali themselves
put it, what a personÕs address is in Europe, his genealogy is in Somaliland.Ó[8]
The system of alliances through which
the legal system works is fluid in two sense. To begin with, coalitions are
created by agnatic kinship at multiple levels. 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. 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. In the case of a conflict between individuals in different clans, all of
each clan is, in principle if not always in practice, allied in support of its
member.[9]
The coalitions are not defined entirely
by kinship. The nearest thing to a well defined and stable unit below the clan
level is what Lewis, following the practice of the British administrators,
refers to as a Òdia-paying groupÓ (ÒdiaÓ is the Arabic term for blood money,
the Icelandic wergeld).[10] The dia-paying group is
responsible for paying for offenses by its members, collecting for offenses
against its members, and, in the latter case, using force or the threat of
force to obtain payment. It also deals with conflicts between its members,
under rules defined in part by contract.
The dia-paying
groupÕs membership and internal rules are defined by explicit contract.[11] In most cases it is made
up of a number of jiffo-paying groups, each of which may consist of the
descendants in the paternal line of a single common ancestor, or several such.
Within the dia-paying group, the separate jiffo-paying groups have special
responsibility for the offenses of their members defined by the groupÕs
contract, usually paying all of the cost up to some limit, commonly a third of
the payment for a killing. The division of costs above that point among the
components of the larger group is also defined by contract, usually in
proportion to either the number of males in each Jiffo-paying group or its
wealth in livestock.
The separate jiffo-paying groups within
a dia-paying group may or may not be linked by agnatic kinship. If smaller
groups not so linked wish to combine for the purpose, they may take advantage
of links through maternal kinship to do so, producing a uterine alliance, and
similarly for coalitions at other levels of the system. Sometimes coalitions
are formed with neither agnatic nor uterine links as justification; such are referred to as gaashaanbuur, meaning
literally 'pile of shields,'[12]
since they are made in order to acquire sufficient fighting strength.
By LewisÕ account, the size of a
dia-paying group is limited at the low end, about 300 males, by the need for
enough resources to pay blood-money when necessary without an undue burden on
any individual and for sufficient military power to enforce claims for payment
of blood-money. It is limited at the high end, about 3000 men, by the problems
of internal conflict—too many able and ambitious would-be leaders,
situations where one of the component groups feels it is being unfairly
burdened by payments for offenses by members of other groups, and similar
problems. Component groups can and do split off, to form their own dia-paying
group or join with a different one. And if circumstances force an alliance
among multiple dia-paying groups, they may temporarily constitute themselves as
a single such group.
Somalis distinguish between general
laws, applying to all members of the clan, and special laws, applying to
members of a particular group, in particular a dia-paying group, judged within
the group. Special laws are established by explicit contract,[13] general law seen as a set
of broad principles, with the application up to the particular judge; thus
there are, in principle, no situations on which the law is silent. Decisions
are to be based on customary practice. A sufficient number of consistent
decisions may result in a rule followed by judges coming to be treated as a
law; in this sense it is a system of informal case law.[14] Within a clan,
significant differences among judges tend to disappear over time, but such
difference between the jurisprudence of different clans may persist.
Judges are not officials with a
position and salary but arbitrators accepted by the disputants. A judge has no
special rights,[15]
such as the right to summon or cross-examine a witness. Nor is the judge viewed
as an authoritative source of law. His job is to settle conflicts by applying
the rules that people in the community normally observe. A judge who produces
verdicts that meet general disapproval is unlikely to be asked to judge cases
in the future. To quote Van Notten:
ÒA Somali judge is free to develop his
own principles of law and his own doctrines. The test of whether such
principles and doctrines are acceptable to the community comes as soon as he
has given his verdict on a conflict. If a verdict deviates from what the
community finds reasonable and just, there is little chance that its author
will be asked again to sit as a judge.Ó [16]
Neither politicians nor religious
dignitaries are responsible for developing or interpreting the general law,
and, as a rule, neither can function in the law as judge, witness, or enforcer.
Folk wisdom includes the sayings ÒOne can change oneÕs religion; one cannot
change the lawÓ and ÒBetween religion and tradition, choose tradition.Ó
One notable exception to the separation
of law and religion is that matters of marriage and inheritance are usually
brought before a judge who applies Koranic law, almost all Somalis being
Muslims.[17] A
second exception is that a judge who needs to know the extent of injury of an
assault victim will ask a religious leader to investigate the question and
testify on it. The schedule of payments of blood-money for death or injury is
based on that in ShariÕa, modified by custom and contract, with the amount
sometimes larger or smaller depending on the relationship between offender and
victim. The contract for a dia-paying group may specify a lower charge for
injuries of one member of the group by another, a larger sum may be paid for
death or injury to a particularly well respected victim or occuring under
especially ugly circumstances, and groups sometimes agree to increase the
amount in order to reduce intergroup violence.
Somali political institutions at the
clan level exist but are limited. Traditionally, most clans had a titular head,
appointed for life, whose functions were mostly ceremonial. The position is
apparently not essential, since in recent years several clans have failed to
choose any replacement for one who died.[18]
Each clan
also has an assembly (Guurti), made
up of the heads of the most important families. It has the power to declare war
or peace with other clans, but not to conscript or hire soldiers. It can
recommend changes in the traditional law but has no power to legislate them.
Decision making in the Guurti, as in
the kris of the Vlach Rom, is not by
majority vote but by consensus,[19] with the result that
meetings can last for months. If a conclusion is reached that some members
still oppose, they (and, presumably, their families) have no obligation to help
implement it.
Mechanics
The mechanics of trial and law
enforcement as described by Van Notten are straightforward. When a dispute
arises between members of different dia-paying
groups, the elders (oday) from each
side[20] form a court with
themselves as judges, ask the parties to state their cases, hear witnesses and
state a verdict. Judges may, before agreeing to judge a dispute, require the
parties to agree, sometimes in writing, to obey their 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; anyone who
refuses is considered an associate of the defendant and owes a fine to the
plaintiffÕs family. In the case of an inter-clan dispute, however, enforcement
is up to the clan of the victim.
What if no court is agreed on in time,
or the oday of one partyÕs family refuses to
participate (particularly likely if the parties are from different clans), or
the court fails to give a verdict? At that point, the victim and his family are
entitled to self-help, imposing restitution or compensation by force. If the
other party believes that excessive force was used or excessive compensation
extracted he is entitled to sue for compensation.
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.[21] Part of what makes it
successful, according to Van Notten, is that families are obligated to help
defend their kin but not to help attack their opponents, with the result that
armed conflicts are likely to lead to stalemate, and from there to arbitration.
Conviction for what we would regard as
a civil or criminal offense usually results in a fine, traditionally stated in
camels. The offenderÕs dia-paying
group (like the Irish fine[22])
is a guarantor for payment of the fine. In inter-clan disputes, the clan is
the guarantor. If an individual repeatedly violates the law and is unable to
pay the resulting fines, his dia-paying
group may publicly announce that it is no longer responsible for him. Since
there is now not only nobody to guarantee his fines but nobody to defend him or
threaten force in vindication of his rights, he is effectively an outlaw, and
likely to leave the territory for that of another clan. In less extreme
situations, the kin group, having had to pay for the offense of its member, may
restrict him in ways designed to prevent a repeat offense, for example by
forbidding him from going armed.
Both plaintiff and defendant have the
right to appeal a verdict, with the number of appeals permitted depending on
the rules of their clan. The appeals court must have more judges than the court
that produced the original verdict, drawn from a wider group of families or
clans; if one party refuses to go along with an appeal, the family of the other
is entitled to self-help.
In the course of a trial, a disputed
fact is admitted as evidence only on the testimony of three witnesses. Parties
can call in experts and character witnesses to support their case. Each party
gets to state his case, or have a representative do so for him, call witnesses
and present evidence; witnesses are not normally subject to cross-examination.
In some cases the judge of the defendant may simply agree, on behalf of his
clan or kin group, to pay the required compensation. As in some other legal
systems, oaths are sometimes required as part of the legal process. If a fact
is disputed, or supported by fewer than three witnesses, parties may be
required to swear one of several different oaths to the truth of their
position. 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. If the
plaintiff fails to establish his case, the defendant must still swear to his
innocence before the case will be dismissed.
Content of the Law
If the convicted defendant refuses to
pay within the specified time, he is subject to penalties ranging from a fine
in honey to having one of his animals slaughtered, cooked, and eaten by the
villagers each day.
As with Arabic jinayat, penalties are computed in camels—in the Somali case,
healthy she-camels aged three to six years. It may be paid in other livestock,
at a fixed customary rate, by agreement between the parties, or in money. The
payment goes to the family of the victim. There exists a standard schedule of
fines for unintentional bodily injury. The family of the victim may, and often
will, accept less, possibly as a good will gesture. For an intentional injury,
fines are doubled.
For intentional murder, the penalty is
a life for a life; if the murderer succeeds in fleeing abroad, a member of his
family of equal status may be put to death in his stead, a rule that gives his
family a strong incentive not to help him escape. In most cases the victimÕs
family can choose to accept blood-money instead, at a rate of 100 camels for a
man and 50 for a woman, although if the murder was sufficiently outrageous the
court may insist on execution of the murderer. If the killer and victim are of
different clans, the victimÕs family are less likely to accept blood-money; if
the killer escapes, his family owes two lives instead of one.
The fines in Somali law are based on
the fines specified in jinayat, on
which the Somali system is based, although the rules differ in detail.[23] Jinayat fines for intentional death or injury are specified as a
number of female camels, equally divided between one, two, three, and four year
old (the heavier diya[24])
and, for accidental homicide,
as a number of camels from a group of which one fifth are male one-year olds
and the rest female camels equally divided between one, two, three and four
year old. The Somali rules do not, and the jinayat
rules do, treat the loss of a body part of which the victim only has one as
equivalent to the loss of life. Otherwise the patterns are similar but not
identical.
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.[25]
The rules for accidental damage to
property, including animals, are the same as in modern tort law. The person
responsible must make the victim whole by replacing the property or its value.
The penalty for stealing an animal, however, is the return of two.
Somali customary law also covers
subjects such as breach of contract and defamation. The legal rules with regard
to property are complicated by the fact that not all sorts of property can be
privately owned. Grazing land is treated as a commons, with a rule of first
come, first served—once one herd is grazing in a particular pasture or
drinking at a water hole, it has temporary ownership. When water is scarce,
grazing land and water sources in a clanÕs territory get treated as possessions
of the clan, which others are supposed to use only with permission. The
definition of clan territory is based on past practice, and imprecise. It
sounds from LewisÕ description as though the combined effect of the imprecision
between clans and the lack of well defined property rights to grazing within
clans results in a good deal of conflict.
Most of the people in the area
studied by Von Notten were nomadic
pastoralists, but there are also partly or entirely sedentary populations that
recognize individual ownership of small parcels of grazing land, with the
restriction that they may only be sold within the clan and lent or rented only
to clan members or outsiders who have some tie with the clan, such as marriage
to a clan member. Agricultural land in areas where the locals practice
agriculture is similarly subject to a restricted form of ownership. Some land
also belongs to groups or an entire clan, and can be divided and allocated to
individual members only with the assent of all male members of the group.
One odd feature of Somali customary law
that is that a wealthy man is required, with detailed legal rules, to share his
wealth with neighbors and relatives. Seen from one angle this can be viewed as
a form of social insurance, from another as a disincentive to successful
business dealings.
Appendix: Dealing With
Foreigners: A Case
The
state of Ethiopia dealt with as a clan: In 1992, a
year after the Tigraens took control of the Ethiopian government, some federal
soldiers wantonly killed a Somali merchant near the village of Sheddher. Their
reason was that he had refused to give them some of his merchandise, which
happened to be qhat. An hour later, the family of the victim killed two federal
soldiers who happened to be passing through the village. The military commander
of the Somali region thereupon ordered a punitive expedition and sent an entire
platoon to Sheddher. On its arrival, the soldiers learned that the villagers
could have killed several more federal soldiers that day but had not done so.
They had acted according to their customary law, which stipulates that when
someone of another clan murders a clansman, two members of that other clan will
be killed. Shortly thereafter, a similar incident happened in the same
territory, in the village of Lafaissa, where a federal soldier had sought
refuge in a military camp after wantonly killing a Somali. The family of the
victim went to a military camp in the nearby village of Herigel and killed two
federal soldiers. The military commander in Harar chose to take no action
against the clan and informed his soldiers that henceforth they had to respect
the customary law. As a result, no more killings occurred in the territory.
(Van Notten, pp. 181-182)
Appendix: A contract for a
dia-paying group[26]
Ḥassan Ugaas are currently estimated to number about 1,500
men. They comprise four main segments (jilibs) which act as jiffo-paying
groups.
A petition delivered to the District Commissioner and dated
the 8th of March, 1950, states their ḥeer
to be as follows:
1. When a man of the Hassan Ugaas is murdered by an external
group twenty camels of his blood-wealth (100) will be taken by his 'next of
kin' (i.e. his sons, brothers, father, and possibly uncles) and the remaining
eighty camels shared amongst all the Ḥassan Ugaas.
2. If a man of the Hassan Ugaas is wounded by an outsider
and his injuries are valued at thirty-three-and-a-third camels (a standard rate
for non-fatal but quite serious injuries),[27]
1 ten camels will be given to him and the
remainder to his jiffo-group.
3. Homicide amongst members of the Hassan Ugaas is subject
to compensation at the rate of thirty-three-and-a-third camels, payable only to
the deceased's next of kin. If the culprit is unable to pay all or part, he
will be assisted by his lineage.
4. In cases of assault within the Hassan Ugaas for which
compensation up to the value of thirty-three-and-a-third camels is payable
(i.e. according to the Shariah) only two-thirds will be paid.
5. Ḥaal of 150 shillings (East African) is
payable to the person attacked[28]
when a man of the Ḥassan Ugaas joins another to fight with
a third.
6. If one man of the Hassan Ugaas insults another at a
Hassan Ugaas council (shir) he shall pay 150 Shs. to the offended party.
7. If a man of the Ḥassan Ugaas marries a girl already betrothed to another man
of the group, or a widow whom it is the customary right of another to marry, he
shall pay ḥaal of five camels to the aggrieved party.[29]
8. If the Ḥassan Ugaas kill a man of another group
they will pay his blood-wealth in equal shares (amongst the four lineages) by
'peniscounting' (qoora tiris).[30]
9. Compensation for serious wounds valued at
thirty-three-and-athird camels or more, owing to a person of another group,
will be paid collectively by all the Ḥassan Ugaas by 'penis counting'.
10. This ḥeer cancels all previous agreements of the
Ḥassan Ugaas.
References
Lewis, I.M., Peoples of the Horn of Africa: Somali, Afar
and Saho, International African Institute, London, 1955 (reprinted 1969).
A
Pastoral Democracy: A Study Of
Pastoralism And Politics Among The Northern Somali Of The Horn Of Africa, Published for the International African Institute
by the Oxford University Press
London New York Toronto, 1961.
Blood and Bone: The Call of Kinship
in Somali Society, The Red Sea Press,
Lawrenceville, 1994.
Understanding Somalia and
Somaliland: Culture, History, Society, Columbia
University Press, N.Y., 2008.
Schacht, Joseph, An Introduction to Islamic Law,
Clarendon Press, Oxford, 1986.
Van Notten, Michael, The Law of the Somalis, (edited by
Spencer Heath MacCallum), The Red Sea Press, Asmara, 2005.
[1] A brief period
of peace in the south was created by an alliance of Islamic courts (the ICU,
ÒIslamic Courts UnionÓ) backed by local clan militias. In late 2006 that period
was ended when Ethiopian troops, acting with U.S. and U.N. support in alliance
with the U.N created ÒTransitional Federal Government,Ó invaded Somalia and
eventually took Mogadishu. Lewis 2008 pp. 87-91. For LewisÕ view of the
situation in Somalia in recent years, see the URL in the references.
[2] Not including
Puntland in the north-eastern corner, whose government considers itself a
province of the nation of Somalia but acts in large part independently.
[3] I am using the
first nine chapters and Appendix A; the rest of the book evaluates the
strengths and weaknesses of the traditional legal system and proposes ways in
which it might be improved and applied.
[4]
About
the Sab, Southern Somali agriculturalist, Lewis writes: ÒTheir conquest
political structure if not that of a tribal state is certainly more formalized and
more hierarchical than the political system of the northern nomads. É Sab
tribes—for here there are territorially defined jural and political
communities—do not appear to base their political relations upon kinship
but upon what Maine called local contiguity.Ó (Lewis 1961 p. 13.)
[5] There is,
however, an important terminological difference between the two sources; Van
Notten inteprets kinship terminology in absolute terms that Lewis argues
catually describes relative position in the genealogical tree. He writes:
The
four terms, qabiil, 3 qolo, jilib
4 and reer which are commonly used to refer to different
levels of grouping, and which have been consistently misinterpreted by most
writers on the Somali, can legitimately all be applied to the same genealogical
and political unit in different contexts. Generally speaking, apart from its
restricted use to designate the descendants of a
living man, reer means lineage in an extended sense. Thus the Ḍulbahante clan is a
lineage (reer) of the Daarood clan-family and smaller units within the Ḍulbahante are lineages (reers) of the Ḍulbahante clan, and so on down to the minimal unit which
consists of a man and his sons. The
Arabic loan-word, qabiil, is generally restricted in use to the larger
units such as clans, sub-clans, and primary lineage-groups. But here again its
use is entirely relative. What, in relation to a
smaller unit is referred to as a qabiil,
in relation to a larger unit is spoken
of as qolo or jilib. If a
man of the Ḍulbahante, referring to his relations with other members of
his clan, describes his qabiil as Ḍulbahante,
his qolo as
Barkad (a primary lineage-group) and his
jilib as a smaller Barkad
lineage, he may in another situation refer to Daarood as his qabiil his qolo
as Harti (see genealogy at end of text) and finally his jilib as Ḍulbahante. None of these terms can be assigned
any precise or fixed significance except by reference to other units. All are
relative terms within the hierarchy of segmentation based on agnatic connexion.
[6] A partial
exception exists for women; a manÕs wife is in some respects classified by her husbandÕs genealogy, in some
respects by her own, so a woman of clan A married to a man of clan B is in some
respects a part of the latter clan.
[7] the more distant units are genealogically, the greater the
likelihood of extended strife between the larger units of which they are
segments. Thus strife between a segment
of the Ḍulbahante and a
segment of the Habar Tol Ja'lo is more likely to lead to fighting between the Ḍulbahante
as a unit opposed to the Habar Tol Ja'lo
as a unit, than is strife between one
group of Faaraḥ Garaad and one segment of Maḥamuud Garaad to a
general war between these two segments of the Ḍulbahante. ... The smaller a
unit the greater is its cohesion, and the larger a
unit the more likely is it to split into hostile groups following the lines of
genealogical cleavage. (Lewis 1961 p. 152)
[8] Lewis 1961, p.
2.
[9] ÒIn principle, within the clan dia-paying groups oppose
dia-paying groups, primary lineage-groups primary lineagegroups, and within the
clan-family clans oppose clans. But the simple model of agnatic segmentation
with equipoised units at every level is distorted by the recognition of
irregular growth and by the importance given to the uneven distribution of
man-power and fighting potential. These inequalities are counteracted partly by
uterine ties which act as a built-in
compensating mechanism, and partly by alliances (gaashaanbuur) outside
kinship.Ó (Lewis 1961 p. 159)
[10] It is not the
Somali term. I conjecture that the British administrators used it because of
prior experience in Muslim states, where dia plays an element in ShariÕa, as
described in chapter XXX.
[11] Under British
administration, the contracts were in writing, with copies filed with the
British officials; for an example see Appendix 1. Lewis suggests that prior to
that they were normally oral contracts, but may sometimes have been in writing
and deposited with the custodian of the shrine of a prominent saint. (Lewis
1961 p. 176).
[12] Lewis 1961 p.
156. The Somali use the same term to describe the British commonwealth or the
western alliance against the Soviets.
[13] ÒIt is at
least refreshing to confront the various hypothetical theories of social
contract with a contract case where this institution is systematically
employed, within a kinship ambience, in the formation and definition of
political units, to an extent which, so far as I know, is unparalleled
elsewhere.Ó (Preface to the 1982 edition of A
Pastoral Democracy, p. xiv)
[14] This
decription is from Van Notten. Schacht, describing pre-Islamic bedouin law,
writes: ÒIf protracted negotiation between the parties led to no result,
recourse was normally had to an arbitrator (ḥakam) É . É the
parties were free to appoint É any person on whom they agreed, É . The decision of the ḥakam, which was final, was not an enforceable judgement (the
execution had indeed to be guaranteed by the security), but rather a statement
of right on a disputed point. It therefore became easily an authoritative
statement of what the customeray law was, or ought to be; the function of the
arbitrator merged into that of a lawmaker, É . Schacht pp. 7-8.
[15] Judges are
held to have a special duty to be law-abiding, hence subject to heavier fines
than ordinary people if they are not.
[16] Judges are
normally the elders of the partiesÕ jilibs.
Presumably the point of the passage is that a judge whose decisions are
generally disapproved of loses his position as elder. Von Notten mentions that
an individual unhappy with the elder of his jilib
may leave his extended family and start a new one, possibly joining up with
other dissatisfied individuals from other jilibs,
or can try to convince the other members of his family to replace their elder.
[17] Adhering to
the ShafiÕite school. But inheritance practice represents a mix of Islamic and
traditional law; camels, for instance, are inherited only by males.
[18] In the case of
the Samaron clan, into which Von Notten married, the last titular head died in
1954 and had not been replaced as of 2002, when Von Notten died.
[19] According to
Van Notten. Lewis describes decision making, not merely for a clan but for
groups at all levels, as involving a meeting open to all adult males with
descisions made by majority vote.
[20] In parts of
Van NottenÕs account he seems to be describing a system where each dia-paying
group (his Jilib) has a single elder
(oday).
[21] Judging by
LewisÕs description, disputes within a clan are normally settled peacefully.
Interclan disputes may or may not be.
[22] Von Notten is
not entirely clear about the membership of juffo
(his term for what Lewis calles the jiffo-paying group) and jilib (dia-paying group). At one point
the former is defined as all the descendants in the paternal line of a common
great-grandfather and the latter is a group of juffoÕs whose members are related. At another point, the jilib is defined as Òall the living
descendants of a given paternal great-grandfather or further removed ancestor.Ó
The fine in ancient Irish law, discussed in
Chapter XXX, is made up of all the descendants in the paternal line of a common
great-grandfather. It sounds from LewisÕs description as though the juffo (his
jiffo-paying group or Òtertiary sectionÓ) is defined by paternal kinship, the
jilib (dia-paying group or Òsecondary sectionÓ) by contract among the member
juffos, usually but not always ones that have a common paternal ancestor.
Describing the logic of kinship alliances, he writes: ÒThe tertiary sections
support each other against the secondary, the secondary against the primary,
and all combine in the solidarity of the tribe when this is threatened or
attacked from outside. Lewis 1955 p. 108.
[23] The Somali
follow the ShafiÕI school; some differences between their rules and those
listed in Chapter XX may correspond to differences among schools of Sunni law.
[24] ÒDiyaÓ is the
spelling in my sources for ShariÕa, presumably the same word as LewisÕ Òdia.Ó
[25] This is the
second striking similarity we have observed between Somali and ancient Irish
law. The Celts, in the course of their history, occupied many different places,
but it is hard to believe that they got as far as the horn of Africa, so the
similarities are presumably examples of parallel legal evolution—or, just
possibly, common descent from some legal system in the very distant past. For a
third similarity, consider that a favorite sport of both cultures appears to
have been cattle raiding—in the Somali case camels.
[26] Lewis 1961,
pp. 177-178.
[27] This is known as jaa' ifo (as distinct from jiffo)
and is any non-fatal but fairly serious wound for which compensation is of the
order of thirty-three-and-a-third camels, but may be more. (Lewis fn)
[28] When two men attack another of the same group this is known
as hiill or tuuto and insult compensation is regularly payable.
This is a common provision in diapaying treaties. (Lewis fn)
[29] This refers to the Somali practice of widow inheritance (dumaal)
where the children belong to the new husband and not to the deceased brother or
close agnate. A reduced bride-wealth is normally paid. (Lewis fn)
[30] Shares in proportion
to the number of males in each lineage.