The US is struggling to find the moral compass needed to reduce the horrific gun violence and death rates. Ideological, financial/business, political, and practical interests all seem to be competing and advocating for specific positions with regard to gun policy. Virtually none are interested in addressing the actual problem of gun violence. Some advocate ramping up the presence of guns as if stepping backwards in time to the days of the US wild wild west as depicted in cartoons and movies where everyone walked around with a gun strapped to their hip ready to take on anyone who challenged them. Here is one perhaps not-so-surprising comment that arises from this warrior macho attitude:
“Criminals don’t obey the law so there is no point to passing more laws!”
What an asinine comment. What on earth could they be thinking? One becomes a criminal by intentionally breaking the law. Are they suggesting no laws? Are they thinking that if there are no laws there would be no criminals? Do they want a society where anything goes? Are they advocating anarchy in which everyone is on their own? What madness runs through their minds when they suggest we don’t need laws because criminals don’t obey them anyway? Carried even further in the US gun debate, the people who seem to advocate this madness also state emphatically that the US 2nd amendment to their Constitution means that everyone has the right to “keep and bear arms” essentially without any caveats. Of course, in law the US governments do restrict weapons to classes of blade lengths and firearm styles. Without laws or police, each person would be responsible for their own protection just as in the movie depiction of the wild wild west. Furthermore, the citizenry is seen to hold the government to account by the threat of their having weapons. Sounds crazy, but a surprising number of people believe this to be the underpinning philosophy of their government’s “founding fathers.” In addition, the reasoning (if it can be called that) is something like: “We don’t need laws because good people don’t do bad things like kill each other or themselves with guns and so we need a system that doesn’t have laws. Furthermore, where guns are concerned, it should be up to each person to protect themselves because the police never get there in time anyway, so the more guns the better.”
Where did this attitude of macho, self-indulgent bravado come from? One possibility is that it derives from the very roots of US origins invading and killing all the people they encountered while taking over their land, in civil war, in revolution against a perceived tyrant (Britain), braving and besting the worst nature could throw at them, and building an economic and military giant that exceeds anything the world has seen before. Does this necessarily translate into an arrogance and disregard of others to the extent that government is essentially useless? No, of course not. But one can imagine a deep-seated sense of individual independence that is remarkably lacking in community empathy and caring for others as individuals, instead insisting they stand or fall on their own. Such an attitude does not falter in the face of a disaster or common enemy. Everyone can be a hero and rescue others.
But in reality any group of people will include a majority who do the right thing all the time, a number who occasionally do something “bad” like minor stealing, beating up another person in a fight, and so on. The group will also include a very few who are always attempting to get something for free and don’t care about the consequences, so will resort to rape, murder, slavery, and other really nasty behaviours. If there were no laws, then who is to say that the minor theft or even rape and murder is truly bad?
Let’s start with the first idea – a system that does not have laws. Laws are just ways of codifying moral intentions into statements that govern behaviour and that define the consequences of misbehaving. So while it may be true that bad guys will not obey the laws, does it make sense to have some laws just so that when they do something “bad” the good guys at least have a way to claim their action was bad and not good or even OK? One could continue to argue that just because you put the law there, it will be broken anyway. And it is also possible to argue that laws get so complicated and entwined that only a lawyer could understand them. Ordinary people can only understand a few simple rules. So is it possible to have a civilized society without having any laws written down and that follows only a few simple rules? The answer is a resounding yes, but not everyone would want to be in that system.
While many people believe there are absolute truths and absolute ideas of what is “good and moral behaviour”, a quick scan of the global definitions of morality reveals a wide divergence of “absolute truths” and “absolute good.” This implies there needs to be some way of defining and assigning the absolutes within a given culture or region. But to keep the idea of no laws, it must be done without laws.
In all societies and amongst all peoples, there is an innate sense of natural justice and fairness. While everyone understands these principles, not everyone abides by them. Indeed some people exploit them to take advantage of or even abuse other people. This sense of fairness and justice is derived from a long evolutionary history of developing these intuitive concepts that can be found in a surprisingly large number of animal groups including both mammals and birds and possibly even in some smart invertebrates such as octopus. So we are biologically aware of the ideals of behaviour, even if we do not have them codified into law, and even if we choose not to obey them. In some people, aspects of these intuitive concepts are partially or mostly lacking and we often term these people mentally ill. People who intentionally go against these concepts are considered to have behaved in an inappropriate way and need to be punished or corrected or made to pay the victims for the harm they caused.
So when laws are enacted, people want them to reflect their own intuitive vision of what is right, just, and fair. If a given law is perceived to be unfair or ineffective, the presumption is that it should be changed. In many countries laws are highly developed and complicated documents intended to cover all the potential ways a person might attempt to thwart the intent of the law but stay within its technical boundaries. Because people are very smart, it is hard to think of all the devious patterns of behaviour that might be used to thwart the law. Often the laws are written with good intentions but have unintended consequences such as unnecessarily restricting what some people might consider a “right” under the natural justice or even the written constitutions and/or bills of rights. Altogether too often in some countries, the laws are written with devious or political intent to give advantage to some people or corporations over others. All of these inconsistencies erode the basic trust that people have in the laws and thus in the governing bodies that administer the laws.
So if we take that as the basis for the pro-gun folks not wanting laws to govern the possession and what one might call the acceptable use of guns, there must be a way of defining what is not acceptable possession and use of guns. One can even imagine ways to prevent or at least inhibit access to guns by bad guys or people who do not understand the consequences of their actions (mentally ill). How would you do that if there were no laws at all; if nothing were written down? Certainly before written laws were in place there must have been systems to maintain civil society, even in very early societies. In fact, many indigenous groups can demonstrate exactly that kind of system. The most common is to have a person or persons of exceptional, often divinely imparted skills, to sit in judgement of behaviour that has caused a problem or that has been the source of complaints. Sometimes there are techniques to discover guilt based on such things as having a dry tongue (gets burnt if touched with a hot rock). In other cases, the expert can “see” the evil deed on the person and declares them guilty. So whatever we might think of the investigative techniques, it is completely possible to establish a system of justice without written laws. In fact, that is the way laws began.
But next, how do you impose a judgement? In many indigenous cultures the idea is to create a series of tasks and events designed to rehabilitate or teach the guilty person how to behave properly while forgiving the person his or her misdemeanors. The modern version of this is the establishment of “Truth and Reconciliation” processes. In the instance when the person re-offends or is not able to be rehabilitated, many early societies and some indigenous groups today ban them from the society so they must live physically away from society on their own. In still other societies including many modern societies, the intent is to punish, not teach. And still others use judgement to exact payment for the harm caused. All of this is accomplished without written laws.
Is there a modern example of this concept? Yes, there is. Most of the systems such as I have described are now a mix of natural justice and judicial law, but there is one system that recently relied entirely on a small group of people with special skills to impose natural justice and to exact payment for the harm caused. This system ended formally only last year (2012), and then only partially. In many parts of that country, the system of justice without written laws is still in play without the intervention of judicial laws. That country is Somalia.
Understanding Somali perspectives by observing from a European or North American perspective is not easy. Furthermore, our sensibilities are completely unknown and unrecognized in most of Somalia. Only a few literate people in the country trust formal judicial law. Most people in Somalia do not trust a central government authority. Instead they trust only within clans (family groupings). Sound familiar?
Somalia is a very unusual country. In 1994, the government was overthrown despite interventions by other nations, including Canada (Mogadishu the capital is where Canadian troops were convicted of torture and murder). Ultimately no foreign military forces were able to subdue the warlords. It remained without a government from 1994 until very recently. The anarchy was terrible for a while, but over the first few years after 1994, the warlords began taking responsibility for their “subjects” and essentially operated under Xeer law (no written laws, just a series of Elders acting as judges to decide each case) using a concept of “natural justice.” Believe it or not, access to health care, education, etc. was better with no government than with the previous dictator. A Transitional National Government was replaced by the Transnational Federal Government about 2004. In 2006 supported by Ethiopian troops the TFG got control of the south, and in 2012 took over the rest of the country. It was only in 2009 that a Central Bank was re-established (countries cannot issue money without a central bank). Their new “Roadmap” includes a democratic government with a bicameral parliament and of the 225 seats, 30% are earmarked for women.
After years of Xeer law in which women have essentially no rights, at least the country is struggling to go to a more democratic system with laws more familiar to us. But first let’s examine the condition of Xeer law. Xeer law is intrinsic to Somalia. Traditional Somali society centers on timeless, unchangeable and universal human rights rather than on ever-changing government laws. The definition of those timeless, unchangeable, and universal rights is in the hands of the Elders, but are essentially understood intuitively by everyone. Xeer law is based on compensation, not punishment and not necessarily teaching or rehabilitation, so all payments go directly to victims or male family members if the victim is female, not to the government. In general if the wrongdoing is settled with Xeer law, the formal judicial system agrees with the decisions. Women cannot speak in Xeer proceedings, but are protected under Xeer law. In 2010 the traditional leaders signed a declaration re-affirming their commitment to uphold human rights.
How well does this work? In a county with no government, it was deemed good. And most people who were subject to the rulings obeyed them. In fact, the complainant and the defendant must first agree to abide by the rulings before the judgment can proceed. The time frame of the hearings and judgement are very brief, usually a few hours or days at most.
Under Xeer law, murder is compensated for by payment. While rape is a crime under Xeer, trials are rarely heard because as Xeer is essentially a warrior’s law, only a man can bring the case forward. Most of Somalia is illiterate so most people rely on Xeer law. If a single woman has been raped, she will likely find herself accused of immoral behaviour. In addition, even if the woman were married, the “penalty” will be compensation paid not to her, but to the husband or family with no individual punishment to the rapist. During these proceedings an equal number of Elders from each family must be present, and each side must agree to the decision of the proceedings.
If a similar system were imported into a country that decided not to have written laws, one could immediately give women equal rights to men. That in itself is not a given even in the US. There are many laws that require women to give up authority over their own bodies in everyday life, for example, something no man would stand for.
There are some nasty consequences to the way Xeer law is imposed. Under Xeer law, individual responsibility is not recognized, it is family responsibility. For example piracy is really a major source of income for Somalia. If a pirate is killed by a French military person, the pirate is not deemed “guilty” under Xeer law. Instead the French military is deemed to be liable to pay the dead pirate’s family, and if payment is not forthcoming, it is the family’s duty to exact payment (for example a dead Frenchman), however long that takes. Thus, a Somali rapist or murderer does not take individual responsibility for the crime. Instead the victim’s family takes responsibility for exacting the payment. This is the origin of the so-called “honour” based punishments which include killing members of your own family if they dishonour the clan.
In Somalia where most people cannot read, oral proceedings, face to face encounters with trusted Elders, compensation by family honour (so payment is made even if the individual cannot make payment), punishment by the shame brought to a family, all make sense.
So under the traditions of Xeer law, there is a completely workable system that has no written laws and no judicial system with formal or trained advocates representing the victim or defendant. Would the pro-gun advocates find such a system any more workable than the one in which they currently find themselves? They just might. In Somalia immediately after the fall of government, guns were the source of power and created the warlord’s capacity to govern. If you could not afford a gun, or were not confident about using it, you were at the mercy of the warlords or any one who did have a gun. At first it was chaos, but people are people and without too much delay, the warlords began to take care of their subjects and exact immediate and usually lethal punishment for misbehaving according to their rules. With a few years, the traditional non-judicial, natural justice system re-asserted itself. Within this system there were no gun laws. If you could afford one, you could have it. As government was re-established, old laws were re-enacted. In Somalia today, the gun laws are very similar to those in the US, for example. No automatic weapons are allowed in civilian hands, gun owners must be licensed and can transfer guns but not sell them commercially unless licensed as a gun dealer. Hand guns are permitted under license.
The total homicide rates have decline dramatically over time and most recently with the establishment of judicial law in addition to Xeer law. In 2002 for example, the homicide rate per 100,000 people was 33.1 homicides by any means. By 2008, the homicide rate had dropped to 1.5 people per 100,000. By comparison, in the US, the homicide rate (any means) was 6.13, and in 2008 was pretty much the same at 5.8 per 100,000 people. At last count in 2011, the homicide rate was about 5.1 per 100,000. By comparison, the US suicide rate by guns at 6.3 per 100,000 is actually higher than the homicide rate by any method. Just for the sake of completeness, the rate of gun homicides in the US (2011) is 3.6 of which about 2.0 are by handguns. So Somalia is a far safer place insofar as gun violence is concerned than is the US.
So looking at Somalia, a mixture of judicial law (familiar to North America and Europe) and Xeer law brought the homicide rate down by a factor of more than 20 times. Would the addition of a Xeer style law be appealing to the pro gun advocates who argue criminals don’t obey the law? In a Xeer style process, the families would be responsible, not just the perpetrator and not just the victim. Certainly it would establish a means of dealing with people who don’t obey the law and would also establish a way of adjudicating in cases where the law (as per the pro-gun concept) was not enacted, but yet harm was done. Somalia has developed from a “lawless” society, to one with unwritten laws to one with a mix of unwritten and written laws, with gun laws essentially the same as the US. The result has been a much lower rate of homicides in total and a very much lower rate of gun deaths than in the US. The signal difference is Xeer law.
Xeer style law in the US? Not likely, but the key difference is shifting the onus of responsibility from just a single judicial system that punishes and assigns blame only to the perpetrator, to one that is based on a sense of natural justice with judgements rendered by Elders and compensation assigned to the families not just to the perpetrators. It is certainly not a perfect system, but the example illustrates that while “written laws” may not be obeyed by criminals, society will find a way to maintain civil behaviour even without written laws if the people decide they want it to work. While this may not be the answer, it demonstrates that a concept of natural justice can be made to work without written laws. So while the comment that criminals do not obey the law is a stupid comment in the context of the legal system in the US, it is not without merit in a broader context if and only if the idea is accompanied by a method of holding bad guys both in check and to account.
Let’s hope the US struggle to find the moral compass needed to reduce the horrific gun violence and death rates is very short-lived and completed successfully very soon.