The Xeer Traditional Legal System of Somalia
1. ICH domains
Oral traditions and expressions, social practices
2. Short description
Clans and their subdivisions have traditionally been the primary means of social organisation for pastoralist and agro-pastoralist communities in Somalia, as well as the building blocks for intercommunity alliances. As neighbouring clans have historically competed over scarce environmental resources – particularly land and water – a customary code of conduct, or Xeer, was developed to settle disputes and maintain social order. This traditional system of law is thought to date to approximately the 7th century. Under Xeer, elders serve as mediator judges and help settle cases, taking precedent and custom into account. Xeer is not a written legal code, but rather a tradition that has been passed down orally from one generation to the next, providing a rule of law permitting safe travel, trade, marriage, and so forth throughout the region. Much like the clan system, Xeer is an ever-present part of the Somali way of life.
Xeer is divided into two categories: Xeer Guud and Xeer Gaar. Xeer Guud includes criminal and civil matters and is applicable to all clans, whereas Xeer Gaar is only applied in a specific community. That said, specific subsections and interpretations of Xeer Guud by the respective bodies of elders may change between communities. In practice, when two parties are in dispute, the traditional body of elders of the two conflicting parties convene a clan assembly to discuss the issues at stake. The elders examine relevant precedents or relevant Xeer on the matter. Generally, Somali customary law is compensatory, rather than punitive. Instead of being imprisoned or otherwise punished, law breakers are required to compensate their victims. A victim seldom fails to receive compensation, as Somalis are insured by near kin against his or her liabilities under Xeer. Throughout the 1990s’ civil war and its aftermath, Xeer and the elders who practise it were a consistent resource for communal dispute resolution. Xeer survives today to a large extent throughout Somalia, even in urban areas.
Further information:
On Xeer and its inclusive conflict approach, see:
http://www.accord.org.za/conflict-trends/reinvigoration-somali-traditional-justice-inclusive-conflict-resolution-approaches/
On the different principles of Xeer:
https://mises.org/library/rule-law-without-state
See Chapter 3.2 on a full analysis on Xeer, vis a vis other legal systems in Somalia
https://lib.ugent.be/fulltxt/RUG01/002/060/667/RUG01-002060667_2013_0001_AC.pdf
3. Link with sustainable development
Xeer provides a concrete example of the ways that intangible cultural heritage can contribute to the prevention of disputes and peaceful conflict resolution. To this end, efforts have been made to consider the Xeer system as a complement to other legal and administrative mechanisms in Somalia. In line with SDG 16 of promoting just and peaceful societies, the Xeer system plays an invaluable role in ensuring exchange and understanding among Somalis.
4. Questions for reflection
Do you know of similar traditional legal systems?
Are the traditional legal systems consistent with the principles of universal human, women and childrens’ rights?
Have these traditional legal systems evolved to take into consideration changes in their operating environment today? If not, why not? If so, how?