mustela_nivalis: It is a least weasel. (Default)
[personal profile] mustela_nivalis
Within the past few months, I have noticed that Westerners, and, in particular, Americans, tend to stereotype so-called third world countries—a term that originally referred to countries involved in the Unaligned Movement rather than relative economic prosperity , but that is a slightly more complicated geopolitical story. I have heard Thailand reduced to a country filled with homosexuals (which kind of misses the third gender aspect of the kathoey), India to a hotbed of poverty, Ethiopia to famine, Turkey to human rights violations (which is fair), and Iran to uneducated theocrats (which isn't). Yes, noting the problems of any nation is important; no, ignoring their good points is myopic and reinforces colonialist ideals (the West must go in and punish or save failing nations).

Recognizing the fact that as an American of South Asian extraction, I might occasionally miss cultural subtleties, I will occasionally post cultural practices of note in non-Western nations, including such things as traditional legal codes, medicine, religion, music, or whatever else seems appropriate. I will probably ignore countries traditionally considered developed unless there exists a popular misunderstanding of that country worth correcting. I acknowledge that among the countries mentioned above there are economic disparities. On the other hand, each of them often carries strong negative associations in the West.
Finally, I will try to avoid talking too much about music or food, as, while interesting, these are perhaps the parts of any culture most often appreciated in the west, although I might be willing to make exceptions for music if I feel it is too often ignored.

Without further ado, I give you
Somalia is generally seen as a failed state in the west: my basic assumptions were for a long time that it was a country entrenched in unending civil war where most cities were without law of any sort. This readily follows from the lack of a central government. As any Westerner knows, the government provides protection for its citizens in cases of both civil and criminal conflict. If you don’t have a government, you are no longer safe. Furthermore, Somalia’s issues with piracy are well-publicized in media. A country that has piracy is clearly a country without law. However, this misses a fundamental aspect of Somali culture: xeer.
Xeer, pronounced /ħeːr/ (roughly hair), is the oral law tradition in Somalia. While it is prone to pluralism, there are some common factors shared by all aspects. Xeer focuses legal power in the hands of those clan elders who command sufficient respect, separating it from religious and governmental authorities. Lawyers are provided in a similar manner to judges: those clan members sufficiently skilled in arguing are chosen to represent the aggrieved and the accused. Judges, or rather jurists, from either the clans involved in the conflict, or, in the case of large scale judicial proceedings, a neutral clan.

Xeer generally operates as a system of property rights, meaning that it operates without imprisonment, the characteristic punishment of Western-style law. Punishment instead involves exchange of goods or property as determined by judges. There are two forms of xeer, xeer guud and xeer gaar. The first, xeer guud deals primarily with day-to-day regulation and resolution of conflict between and within clans; the second, xeer gaar deals with broader economic regulations. Xeer guud divides into xeer dhig, a penal code, and xeer dhaqasho, a civil code, both of which have numerous subdivisions. Negative consequences in xeer dhig are encoded diya, a form of renumeration for physical harm, commonly with livestock. This places the value of a man's life at 100 camels and a woman's at 50 (xeer, alas, does fall into the traps of patriarchy), and uses smaller sums of camels for lesser harm. This is to be paid by the accused's jilib, clan members of a certain level of closeness. In dhaqasho, some areas (family and property rights) have been subsumed by sharia. Other aspects, including land and animal allocation, remain traditional.

A testament to the stability afforded by xeer is given by some statistics from this paper from the University of West Virginia and corroborated by this article from the Ludwig von Mises Institute. Although both share a degree of contempt for the Somali state (or states, considering Somaliland), both note that anarchy has not caused a backslide in the country and that various standards of living indexes have, in fact, improved. Admittedly, some increases in standard of living, such as increase in consumer goods or increased life expectancy, may be due to a decrease in conflict, but xeer could also contribute to some of these changes. This is possible as xeer is especially relevant to a pastoral society such as Somalia, as evidenced by the use of camels as a counter for diya.

Possible problems with xeer are, of course, its feeding into patriarchy, limiting representation of women and often proving inadequate in matters dealing with marriage and rape. In balance, it does protect women and children from harm, at least nominally. Further, it must innovate to deal better with modern conflicts, although the ability of elders to mediate in a conflict perhaps allows some degree of modernization of punishments. Disidentification with clans and, of course, falling outside Somali clan groups due to ethnic identity both lead to more failings of xeer to prove completely adequate. The former allows license to ignore rulings, while the later disenfranchises the Bantu and Arab minorities of Somalia from the legal code.

This is only an overview of the system. The links used are primarily from the wikipedia page, but some of them, especially Stateless Justice in Somalia , merit checking out if you want to learn more. I readily acknowledge the failure of these papers as primarily coming from the Western perspective. Also, the failure of xeer to even allow representation of women is disturbing; however, consider some writings by Maryan Qasim , the Somali Minister of Women's Development and Family Welfare, who attests that poor treatment of women is systemic in Somalia. Generally, she holds that Somalia took umbrage at its placement below number one on the list of most dangerous to be a woman. However, she primarily considers Mogadishu in most of her editorials, although perhaps the risks of rape and female genital mutilation are both worth considering. While xeer mirrors these problems, it is notable that these are problems that would follow from societal values, similar to the lack of legal representation faced by minority groups in any nation. This change would be ideally founded in the legal system—however, xeer is in the hands of the older generations and thus more resistant to social change than would be ideal.

Anyway, I hope this seemed respectful. With luck, this will in some way combat common Western perception of Somalia as a chaotic anarchy, which utterly dismisses the existing cultural legal system. Moreover, it highlights the potential for divorce of judicial and administrative powers, as well as the capacity of legal systems other than the predominant Western-style courts to successfully enforce law in a nation through use of the existing familial hierarchy.
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