A SOCIAL EXPERIMENT with far-reaching implications for human freedom is shaping up in Somalia. I had known that something was afoot but learned the details only last summer upon meeting a Somali tribeswoman traveling in the United States with her European husband. She was an elegant, educated lady who would have been at home in any of the great cities of the world. When her husband introduced me as an anthropologist with classical liberal leanings, conversation turned toward her tribe, an independent, nomadic people who control and move over a large area on both sides of the Somali-Ethiopian border. Hers is one of a constellation of tribes sharing similar language, culture and customary law that for countless centuries lived together in relative harmony in that easternmost jut of the continent known as the Horn of Africa. The Somali nation by tradition, she said, is a stateless society; they have never accepted the authority of any central government, their own or any other.

Then she asked a question that took me completely by surprise. She said, "Do you think it is possible that we Somalis could come into full participation in the modern world--culturally, scientifically, economically--without becoming a part of any state?" I told her I’d thought of that possibility with respect to tribal peoples for many years but had never expected anyone would ask the question. I said yes, I thought it was theoretically possible. But the way was untraveled. It would take extraordinary patience, careful planning, great flexibility.

As we talked, she explained an approach that Somalis from several tribes had talked about. It was to capitalize on their statelessness by opening areas within their tribal lands for development, inviting businessmen and professionals the world over to come to take advantage of the absence of a central government or other coercive authority. In this way Somalia’s statelessness might prove to be a uniquely valuable asset in the modern world.

Specifically, they had in mind offering suitable tracts within their tribal lands on long-term lease for private development. Such development would take the pattern of large multiple-tenant income properties--"estates," as the British would call them--where the land would be leased but the improvements could be individually owned. An attractive site under consideration by my friends’ tribe was a sparsely populated upland valley which because of its elevation enjoys a temperate climate yet also has access to the sea.

An industrious population, they reasoned, attracted from all quarters of the globe by the promise of unprecedented personal and business freedom, could make such areas productive enterprise zones. Some of the more successful zones might eventually become bustling cities not unlike the free cities of Medieval Europe that began the modern age. Such an arrangement would yield the tribes an income, their members would enjoy a dignified status as the ultimate landlords, and they would have available to them in their own back yard, as it were, an abundance of educational, training and work opportunities of all kinds to pick and choose among. It would be their stepping stone to full participation in the modern world. This was the dream that my friends shared with me on a summer afternoon.

THE CHAOS THAT ISN'T

Other Americans they had mentioned this to were horrified. All had a similar picture in mind. From media reports, they knew--or thought they knew--contemporary Somalia to be in unrelenting chaos, ravaged by warfare, starvation and disease, the battleground of rival warlords such that people could neither put in their crops nor harvest them if they did. What else could one expect of a country that had been without a central government for seven years? But my friends said this picture was sadly exaggerated. While there is a modicum of fighting and disorder in some areas, notably in the south in the vicinity of Mogadishu, the over-all picture is far different. Many Somalis, they said, are finding that the absence of a central government has its advantages.

Influenced by the same media, I was a bit skeptical. But the possibility that my friends might be right was so intriguing that over the next few months I found myself looking for corroboration. It came from several places. First, a Los Angeles Times article entitled, "A Somali Alternative to Chaos," described the prosperity of the seaport of Bosaasso in northeastern Somalia. Its beginning words were, "Near the tip of the Horn of Africa, a port city is booming, helped by a lack of clan warfare and the absence of a central government."1

Next was a signed newspaper editorial in Addis Ababa, Ethiopia entitled, "Does Somalia Really Need a Government?" There could be no doubt that the author, Mohamed Mohamed Sheikh, was a qualified observer. Born in Somalia south of Bosaasso, he had worked in Mogadishu as a radio reporter, then in the information services of various ministries and finally as a consultant with UNESCO. He wrote,2

. . . The Somali economy functions as a perfect model of "laissez-faire as conceived by Adam Smith. Government spending is reduced to zero and inflation is very low. The Somali shilling is freely convertible in the market and exchange rates are more stable than in most African countries. Telecommunications and air transport have made tremendous development during the last seven years. . . . Indeed, Somalia has no custom authorities and all goods are imported duty free. New schools and clinics are opening every day, offering their services to those who can afford to pay.

In the absence of statistics, I wondered, how did Mohamed Mohamed gain his information that Somali exports had increased fivefold? We corresponded, and he explained how he had personally carried out field research on the question, what assumptions he had made and how he defended his conclusion. The approximation sounded reasonable, however rough.

A third bit of evidence was a lengthy report in the APC-EC Courier of the Commission of the European Communities, Brussels, from which the following extract is taken:3

Still more recently, a Swedish journal reported "a clear trend in Somalia: the emergence of responsible local level leaders . . . Somalia," it continued, "has now been a state without a government for six years. . . this is not altogether a negative situation. The emergence of a grassroots leadership is a healthy sign of functioning local communities."4

All of these reports, and more, lent credence to my friends’ statement that when the Somalis dismantled their state in 1991, tribal governments quickly filled the vacuum. That had come as a surprise, they said, to those who remembered the persistent efforts of the state to eliminate Somalia’s traditional judges and police from the political scene. But tribal government remained the government of choice for Somalis. According to my friends, this indigenous government, composed of part-time police and law courts and traditional councils of elders, had been quite effective during the past seven years in keeping the peace in the rural areas. They said that many observers thoughtlessly describe this situation as anarchy whereas, in reality, it is government based upon natural law.

UNRAVELING THE SOMALI POLITICAL EQUATION

Before the colonial era, the homeland of the Somali nation was the whole of the Horn of Africa, bounded on the north and east by the Indian Ocean, on the south by the Tana River in what is now Kenya, and on the west by the Ethiopian and Galla highlands. It was fragmented into five parts by the colonial powers--France, England, Italy and Ethiopia. In 1960, the British withdrew from the north and the Italians from the south, leaving in their place one government over the former colonies. There resulted a V-shaped country, the Republic of Somalia--a 1600-mile belt of coastline extending along both sides of the Horn with an average depth of approximately 200 miles.

The French subsequently withdrew from the extreme northwest coast, leaving the Republic of Djibouti. A fourth part of the original Somali nation is still controlled by Kenya. The fifth part lies inland, comprising the heart of the Horn. It is wholly within Ethiopia and nominally independent--hence unrestricted movement is permitted between Ethiopia and Somalia.

Soon after the British and Italian withdrawal, the Somalis realized that independence had not made them free. The foreign oppressors had left, but their tool of oppression, the state, remained intact. Three decades later, therefore, with the intention of restoring the pre-colonial indigenous political tradition, the leading tribes within the Republic of Somalia joined forces and deliberately dismantled the central government. The United Nations attempted militarily to reinstate it but was defeated. Somalis themselves made several splinter attempts at state formation, notably in Mogadishu and Hargeisa. Attempts to reestablish a state account for most of the turmoil in Somalia in the years following the dissolution of the central government in 1991.

The basic problem faced by the Somalis is that voting democracy cannot work in a tribal or clan system, where any coercive political apparatus with power to tax and confer patronage is seen as a prize to be controlled for the benefit of that special interest group known as one’s kindred. The presence or even the prospect, therefore, of a state apparatus is an "attractive nuisance" which keeps the country in a state of continual agitation.

This explains the Somali "warlords." These are military men who gain support within their tribes by holding out the promise that they will reintroduce the state and then try to control it in order to grant all manner of privileges to their respective kinsmen and prevent others from doing the same to them. In dismantling their state in 1991, the Somalis did not realize that the mere possibility of a future state would be enough, at least in the short term, to prevent peace from returning to their country. If the tribes could convincingly declare that their territory would remain forever stateless, no one would listen any longer to these warriors and they would have no option but to place themselves again under the discipline of tribal customary law. The Somali nation would have neutralized its warlords.

Unfortunately, there has been no practical possibility of that happening. The mere likelihood of a central government has been like the golden apple of Eris, Greek goddess of discord. Eris rolled a golden apple into the hall on Mount Olympus where all the gods were partying without (for good reason) having invited her. Inscribed "For the fairest," the golden apple quickly accomplished its intended purpose of setting the gods to fighting.

This has been the stand-off for seven years, with the country gradually stabilizing as the prospect of a new Somali state recedes. Were there such a category, Somalia would now qualify for the Guinness record for the country with the longest absence of central government. Meanwhile, the world’s ‘family of nations’ has become increasingly uncomfortable that any place on the globe should be outside the jurisdiction of a state, especially for any significant length of time and with indications that its inhabitants might not only survive, but prosper.

Could anything be more unsettling to those having a stake in perpetuating widespread belief in the necessity of the state? Moreover, the donor governments and international financial organizations mentioned by Mohamed Mohamed Sheikh cannot very well regulate a national economy in the absence of a central government into which to channel funds. After the failure, therefore, of the first international attempt to restore the Somali state, pressure began building for a second.

Plans took shape during 1997 for a "Somali peace conference." Participating would be the United Nations, European Union, Arab League, Italy and Ethiopia, with United States funding. Their reported agenda: To bring an end to chaos and restore peace in Somalia by instituting a central government. The European Union engaged a London university professor to draft a constitution and, as incentive for Somalis, promised a substantial aid package for the new government.

The conference met in Cairo in November and was host to 26 Somali political groups, most led by military figures. Significantly, almost none of the negotiations dealt with constitutional questions of what powers the new state should have or how they should be limited, but only with how control would be shared among the mostly military figures present. The resulting "Cairo Accord" declared a provisional government in which one Somali tribe, the Hawiye, would assume the key executive positions and control more than 50 percent of the votes in the parliament. Despite strong endorsements by the United Nations, the Arab League and the European Union, the ‘Accord’ soon evaporated.

THE "AMERICAN TEXT"

As the Cairo Conference had been shaping up, a small group of Somalis including my friends received from private sources in the United States a proposal for a Somali constitution of a very different kind from that drafted in London. The two soon were dubbed the "English text" and the "American text." The latter, authored by anthropologist and businessman James C. Bennett, of Baltimore, provided for a government of such exceedingly limited functions that it could not become a bone of contention simply because it held out no prospect of power and patronage. It would provide the structure of a central government as required by the international community while scrupulously preserving the autonomy of the tribes.

This radical document offered the dissenting tribes an alternative to merely vetoing the English text, being branded "obstructionists" and, in the end, probably being ignored anyhow. Now they could put forward their own proposal. Much discussed and reworked, the American text circulated in a controlled way among tribal leaders. As a prior condition to reading the full text, each had first to read, assimilate and indicate agreement with a one-page statement including the following principles:5

SOVEREIGNTY: Sovereignty resides in individual Somali citizens, over whom the Somali Federation shall exert no powers. The Federation’s main purpose will be to conduct a foreign policy, to enable foreigners to deal with the Somali nation as a whole, and to make the Somalis credible in the eyes and in the minds of foreign governments and individuals. It shall not regulate relations between Somalis, nor between Somali communities, nor between Somali regions. The Xeer (Somali customary law, pronounced "hhair") will govern that.

CUSTOMARY LAW: The Somali nation has always been based on the Xeer, even during the period of colonization (for disputes involving only Somalis, and not colonials) and after independence. The unity and peace of the Somalis, as well as their mutual understanding, are based on the Xeer. The Xeer stands at the center of the Somali identity; without it there could not be a Somali nation. The Xeer is both father and child of the Somali nation. It protects the sovereignty of every Somali. The Federation must respect the Xeer and leave it free to develop into a modern body of law.

FOREIGN POLICY: The Somali Federation will appoint federal ambassadors abroad, but every tribe will be entitled to appoint its own consuls abroad, who shall enjoy federal status. Debts to foreigners incurred by the Somali State prior to its collapse in January 1991 will be settled by a corporation to be established by the new Federation.

PEACE AND DEVELOPMENT: To preserve the peace and facilitate the development of the nation, The Somali Federation shall have no federal police, no federal military, no federal taxation, no federal courts of law and no federal majority rule.

Should such principles become the basis for a national organization of the Somalis, it would open the way for any one or more of the tribes to pursue, if they wished, each within its territory, the development of enterprise zones or free cities as a bridge to full participation in the modern world.

But success would depend upon a stable social environment within Somalia, one that offered effective protection of private property and freedom of contract. In a situation of autonomous tribes and little or no central government, how would this be assured?

KRITARCHY

I began by saying that a social experiment with far-reaching implications is shaping up in Somalia. The experiment consists in the Somalis seeking an alternative to legislative law by looking to their existing customary tribal law, the Xeer, and its further development to serve all of the needs of an emerging urban society. The Xeer shows promise of becoming one of the great bodies of customary law like Anglo-American common law, the law merchant or Jewish traditional law (Halacha). These legal codes are flexible, responsive, and can be maintained without a large central state or legislative apparatus. Jewish law, for example, was evolved and sustained for millennia by a people dispersed in exile, never having state power to enforce it.

A small amount of private funding recently was committed to begin the task of codifying the Xeer. If the Xeerara (plural) appear to vary from tribe to tribe, that is only because each contains mythology particular to its tribe. Stripped of local mythology, the Xeerara are virtually the same throughout Somalia. They are alike in protecting freedom of movement, free trade and other individual freedoms, and forbidding all contrary behavior including legislation and taxation.

The Somali nation started not with the common use of the Somali language by the tribes but with the common observance of the Xeer. Hence the Xeer is called both father and child of the Somali nation. The same phenomenon occurred among the neighboring Oromo nation, double the size of the Somali nation but now for more than a century ruled by the Abyssinian state.

A society organized strictly in accordance with the Xeer is technically called a "kritarchy," as opposed to a democracy, theocracy, monarchy, oligarchy or other form of political government. This little used, nineteenth-century term compounded from the Greek means literally, "rule by judges." Many stateless societies have been kritarchies, including the well known example of the Old Testament Jews during the time of the Judges. The proposed free enclaves also would be kritarchies, since they would be founded solely on the principles of successful modern commerce and the traditional Xeer.

SHARED RISK (INSURANCE)

One principle of the Xeer, like that of the customary law of many kritarchies, is that the clan or other kinship group in effect insures its members, paying compensation in the event any of its members injures someone of another group. This is how the various Somali tribes in the absence of a central state managed to live for untold centuries in relative harmony. It is a principle ideally suited for adaptation to an urban society, where that function can be performed by insurance companies. The only requirement, in fact, of visitors to Somalia under the proposed constitution would be that they be adequately insured against any liability they might incur under the Xeer.

How might this work out in practice? Imagine a simple case, say, a tourist in Somalia injuring someone. If he refused a call to arbitration according to the Xeer, he would lose the judgment by default. If he ignored the judgment, his insurer would end up paying it and in all probability would revoke his policy. Unless he found new coverage that would enable him to continue in Somalia, he would soon find himself on his way out of the country.

Although as one of the more highly regulated industries in the Western world insurance has had little flexibility or incentive to evolve, it can easily be imagined that under conditions of unrestricted economic freedom it would rapidly diversify into new fields of service. To pursue this further would be sheer speculation. But note that it would be to the direct advantage of insurance companies to reduce as much as possible the amount of crime and property damage. At some point, therefore, acting in their own proper self interest and restrained by the competition of the market, they might well undertake as part of their service offering, individually or in concert with other companies, many of the protective functions such as police patrol and fire fighting required by the society at large.

Beyond offering broad protective services, insurance companies might also guarantee performance of contracts, including those made with non-Somalis trading in the country. Until such services became readily available in the market, however, the Somali clans would continue to insure their members as they traditionally have, with the added feature, perhaps, of depositing a bond with the International Chamber of Commerce in Paris. In the event a Somali were found by an arbitration procedure to have defaulted on a contract, his clan, bonded with the International Chamber, would pay the plaintiff the amount of the judgment. The issue then would become a matter for settlement between the defendant and his clan in accordance with the Xeer.

I wish my Somali friends well. Their approach is not to start over but to build on what has succeeded in the past. Such radical experimentation (radical--going to the roots of things) to find fundamentally better ways of protecting private property and freedom of exchange--the underpinning of every other freedom-- is long overdue in the world. It was in 1776 that the last great experiment of this kind was made. Whether or not their attempt today will succeed in the way envisioned by my friends, the intellectual ferment in Somalia augurs a better future for us all.6