For this Throwback Thursday, we shall, again, go back in time to give an example of polycentric law in ancient times. Make sure to check out the other one about Ireland and Anarchy.
“If you hate government so much, why don’t you just move to Somalia!”-Typical Statist
I have heard this said a number of times. It’s a logical fallacy, and a funny one at that, simply because Somalia is an example of a collapsed State (you know, the thing Statist like to worship?). Not only that, but it’s been argued that Somalia is actually better off stateless compared to being ruled by its warlord despots of the past. So it is indeed a totally fallacious argument. What makes it even more hilarious is the fact that anarchy existed in a much more successful way around 1400 years prior to modern Somalia. It was called Xeer and it worked rather well.
Xeer was a judicial system that was polycentric. If you remember from my last piece on such a system, you would remember that Polycentric law is a legal system in which providers within the system compete and/or overlap each other’s jurisdiction. It had all the same functioning parts of our current law system except it was private. There were judges, lawyers, detectives and jurists, everything to run a functioning law system.1 The catch is that there was no monopoly by a State in the enforcement and interpretation of the law.When you look at our modern judicial system, you can’t help but wonder if things are a little more favorable towards the state. The judge, police, and prosecutor all work for the state. They know which hands feed them and what is in their best interest so they all work in favor of the State, regardless of the rights of the defendant or the person being accused. This is in stark contrast to the system from long ago in what is now modern day Somalia.
“What these people have in common, even more than similar language, lifestyle, and physical character is a body of customary law, the Xeer, which differs from clan to clan in nonessential ways such as founding myths but is remarkably uniform with respect to its provision for the protection of persons and property.”2 But wait, how could order have arisen without the almighty state? Civilization is completely impossible without the state so how could a culture arise in ancient times that had rules yet no central authority to enforce it? Somehow, the people in this ancient culture had no governing central authority and yet they were still able to have laws that protected people and their property.
First of all, the law within Xeer is compensatory, not punishment based. Crimes are also defined within violations of property rights. Because it was based on property, compensation is how amends are made, not punishment.2 Secondly, every person in this society must be properly insured just in case the person being accused is a child, penniless, or maybe has fled the area. Lastly, then as now, being shunned from society works wonders as a way of keeping people in line rather than threatening them with violence. Mankind generally wants to work together. It was Mises who said that that which separates man from lesser beasts is social cooperation.3
This is in contrast to how governments have evolved in their role as the sole monopolistic controllers of resolution disputes. Rothbard notes that “in the Middle Ages generally, restitution to the victim was the dominant concept of punishment; only as the State grew more powerful did the governmental authorities encroach ever more into the repayment process, increasingly confiscating a greater proportion of the criminal’s property for themselves, and leaving less and less to the unfortunate victim.”4 Now we have police and law enforcement departments that arrest people for victim-less drug crimes and confiscate their property through asset forfeiture laws. This seized property is partly how law enforcement and governments fund themselves. Under polycentric law though, the way these judicial and law enforcers sustain themselves is through offering fair and sound judgments through interpreting law in a competitive market.
An article by Dick Clark lays out why Xeer is so fascinating.
1. The law is separate from politics and religion
2. The law has a built-in method for its development
3. There is a plurality of jurisdictions and norms
4. Government personnel must abide by the law
5. The law originates in the reason and conscience of the community
6. Judges are specialists, each with his own method of analyzing the Law5
2) “The Rule of Law without the State” by Spencer Heath MacCallum
3)”Liberalism” by Ludwig Von Mises (book)
4) “Ethics of Liberty” by Murray Rothbard (book)
5) “Anarchy and the Law of the Somalis” by Dick Clark