Law without a state: what Somali xeer can teach the philosophy of law

When I was a boy in Minneapolis, my grandfather, who had come to America late in life, still received phone calls from Somalia asking for his opinion on disputes. Goats that had strayed onto someone's land. A car accident between drivers from different families. Once, a killing. He would listen for a long time, ask questions, and then say what he thought the elders should consider. He had been an elder himself, one of the men who judged under xeer, the customary law of the Somalis.

Now I interpret in American courts, and I find myself translating not only words but two ideas of what law is. This essay is an attempt to describe xeer honestly and to ask what it shows about law in general.

What xeer is

Xeer is a body of customary rules, never written down, that governs relations between Somali lineages: compensation for injury and death, access to water and grazing, marriage payments, the treatment of guests, the protection of the weak in time of war. It is administered by elders, men recognised by their families for their judgement and their knowledge of precedent, who meet in assemblies, often under a tree, and talk until they reach a decision.

There are no police and no prisons. The heart of the system is compensation, mag or diya, paid not by the individual wrongdoer alone but by his diya-paying group, a set of related families who have agreed to share liability. The traditional figure for a man's life was a hundred camels; for a woman's, half that. Payment ends the matter. Refusing to pay, or taking revenge after payment, brings disgrace on the whole group.

Xeer has lived alongside Islamic law for centuries, and alongside colonial and then state law for more than a century. In practice Somalis have often moved between the three, choosing the forum that suits the dispute.

What it does well

Outsiders often assume that a law without a state must be the law of the stronger. Hobbes thought something like this. Covenants without the sword, he wrote in Leviathan, are but words, and without a common power to enforce them people have no security.

Xeer is evidence that the sword can be held collectively. The diya-paying group gives every family a reason to restrain its own young men, because it will pay for their violence. It also gives every family protection, because an injury to one member is a claim the whole group can press. Ibn Khaldun would have recognised the mechanism. What he called ʿaṣabiyya, group solidarity, does the work that a police force does elsewhere.

It is also oriented towards repair. In an American criminal court the victim is a witness, and the case is the state against the defendant. Under xeer the case belongs to the families, and the question is what is owed and how the relationship can continue. When I interpret for families who come from that world, I often hear them ask a judge, in effect, "and what will he pay us?" That is not greed. It is a different idea of what justice is for.

What Hart would say

H. L. A. Hart, in The Concept of Law, imagined a society that lived only by what he called primary rules, rules telling people what they must and must not do, with no further rules about those rules. Such a society, he argued, would suffer from three defects. It would be uncertain, because there would be no settled way of identifying what the rules are. It would be static, because there would be no deliberate way of changing them. And it would be inefficient, because there would be no official body to decide with authority when a rule had been broken.

Xeer is often described as exactly this kind of system, and Hart's diagnosis is partly right. Elders from different lineages can disagree about what the custom is. Change comes slowly, through precedent and negotiation, and the system struggles with situations it was not built for, such as disputes between people in cities who barely know their lineage.

But Hart's picture underestimates two things. First, the elders' assemblies are a form of adjudication, with recognised procedures for who may speak and when a decision is final. Second, xeer does change deliberately. Elders have met in large assemblies to revise particular rules. The system has secondary rules of a kind; they are simply spoken rather than written.

What its admirers leave out

Some libertarian writers have held up xeer as proof that law does not need a state. I understand the attraction, but I grew up with the stories, and they are not all good.

The system belongs to lineages. Someone without a strong lineage behind them, a member of a small clan or of one of the groups Somalis have historically looked down on, has no one to press their claim. For them xeer offers very little.

Women are protected by xeer, in the sense that harming a woman brings compensation. But women do not sit among the elders, and the compensation goes to male relatives. The lower figure for a woman's life is not a detail. It tells you whom the system was built around.

And collective liability cuts both ways. Families pay for what they did not do, and young men are sometimes disciplined by their own families with a harshness no court would allow.

Interpreting in Minneapolis, I stand between two systems that each see what the other misses. The American court protects the individual against the group, and the woman against her relatives, in ways xeer never has. Xeer remembers what the court forgets: that a crime breaks a relationship between families, and that punishment alone does not repair it.

My grandfather used to say that a judgement nobody accepts is only the beginning of the next quarrel. That is the lesson I would carry from xeer into any philosophy of law. A legal system needs a sword, or at least a court. It also needs the parties to go home believing the matter is finished.