Michael van Notten,
The Law of the Somalis (Red Sea Press, 2005)
What is Kritarchy?
Frank van Dun
most distinctive contribution of Africa to human history has been precisely
in the civilized art of living reasonably peacefully without a state.
-Jean-Francois Bayart (1989:58)
Kritarchy is an ideal legal and
political system most closely approximated in the institutional structures
of traditional societies, especially those described by anthropologists
as "acephalous," "polycentric," or "stateless."
Such societies are based on customary rather than statutory law. This
type of law fares poorly under statutory regimes, and stateless societies
have diminished drastically in numbers with the spread of political
states over the past several millennia. Nevertheless, though endangered,
societies approximating kritarchies are far from extinct. Nor should
they be considered primitive. The Somali system of customary law Michael
van Notten describes in this book, for example, is not a curiosity of
some backward tribe. It is a living and highly developed juridical system
looking to the future rather than the past.
Somalia is unique in the world today for being free of even the titular
domination of a central legislative apparatus. The central government
of the Somali Democratic Republic was dismantled in 1991 when, after
the ouster of dictator Siad Barre, no agreement was reached on a successor.
For more than a decade, Somalis have resisted the unremitting efforts
of the United Nations and its supporters to re-impose that government.
If they continue to be successful in their resistance, then it can be
reasonably expected, as Van Notten argues in this book, that the Somali
customary law system will evolve into a full body of common law capable
of meeting every need of a developed, free-market society.
Rule of Law
Kritarchy as a form of government
is based on equal justice for all, where justice is understood as adherence
to the principles of natural law. Natural law is the body of principles
underlying all spontaneous human social organization. Implicit in these
principles are certain universal natural rights of individuals, notably
property rights, including rights in one's own person, and freedom of
Its consistent adherence to the rules of justice under natural law distinguishes
kritarchy from other political systems. Under this ideal, even courts
of law, police forces, and other organizations concerned with the day-to-day
maintenance of law are denied any power, privilege, or immunity not
in conformity with natural law. That means that a police force in a
kritarchy can lawfully use its weapons and coercive powers only to maintain
the law, i.e. to defend or remedy violations of people's natural rights.
It also means that, unlike their counterparts in the prevailing political
systems of today's world, courts of law and police do not constitute
and are not incorporated into a coercive monopoly. Anyone is entitled
to offer judicial or police services to willing others. None can be
forced to support any court of law or police force against his will.
In short, in a kritarchy, judicial and police services are offered in
a free market—which, in so far as exchanges of goods and services
are concerned, is the natural law of the human world.
of its commitment to equal justice for all, a kritarchy
does not know the usual political distinction between subjects and rulers.
It lacks a government in the modern sense of the word, i.e. an organization
with coercive powers that claims both the obedience of and the right
to use the labour or property of those living in the area over which
it effectively exercises control. Governing and taxing people by public
or private force is not among the functions of the political system
of kritarchy. People are free to govern their own affairs, either individually
or in voluntary association with others, which means that each, in governing
his own affairs, is required to leave others free to govern theirs.
In this sense, freedom is the basic law of a kritarchy.
follows that a kritarchy can only exist in societies where, and for
as long as, a commitment to justice is sufficiently strong to defeat
the efforts of persons who would use unlawful methods such as aggression,
coercion, or fraud to further their ends or to evade responsibility
and liability for wrongs they have caused others. While it is theoretically
conceivable that freedom could be maintained by nothing more than unorganised,
spontaneous actions of self-defence, in a kritarchy the commitment to
justice manifests in its political system, which guarantees a free market
for the enterprise of justice.
Origin of the Term
term "kritarchy," compounded from the Greek words kritès
(judge) or krito (to judge) and archè (principle, cause),
was coined in 1844 by the English author Robert Southy. In its construction
it resembles terms such as "monarchy," "oligarchy"
and "hierarchy." "Kritarchy" is mentioned, among
other places, in Webster's Unabridged Dictionary, The Oxford
English Dictionary, and The American Collegiate Dictionary.
According to its etymological roots, a kritarchy is a political
system in which justice (more exactly the judgment that seeks to determine
justice) is the ruling principle or first cause. Similarly a monarchy
is a system in which one person is supposed to be the ruling principle
or first cause of every legal action, everyone else being no more than
an obedient subject of the monarch. In an oligarchy a few persons
(the oligarchs), acting in concert but without a fixed hierarchy among
them, are held to be the source of all legal actions. In the modern
system of parliamentary sovereignty, for example, members of parliament
constitute an oligarchy and have equal standing within the parliament.
However, the results of their deliberations and decisions are supposed
to bind all people who, because of citizenship or residence, are considered
subject to the state's authority.
"monarchy" denotes rule by one person and "oligarchy"
denotes rule by a few, it is tempting to understand "kritarchy"
as rule by judges. However, the use of the word "rule" should
not mislead us into thinking that the rule of judges is like that of
monarchs and oligarchs, and least of all that it is a particular sort
and oligarchs aspire to political rule, i.e. to being able to enforce
on their subjects obedience to their commands, rules, decisions, and
choices. In short, monarchs and oligarchs rule by a mixture of direct
command and legislation. Judges, on the other hand, are supposed not
to legislate but only to find ways and means of managing conflicts in
a lawful manner. They do not seek to enforce obedience to their commands
as such. Rather they seek respect for law, which is an order of things
objectively given and not just anything that corresponds with whatever
desires or ideals the judges may have.
in a kritarchy have no subjects. In other political systems, judges
have been incorporated as magistrates into a system of political rule
and empowered to use coercive means to drag citizens and residents before
their benches. Monarchs and oligarchs in those systems impose, or allow
their servants (judges, prosecutors) to impose their rulings on those
subjects on whom they want to impose their rulings. In other words,
they "pick" their subjects (which is the root meaning of the
Latin legere, from which the word lex for legislated or
statute law is derived). In a kritarchy, judges do not choose which
persons will appear before them. Instead, those people desiring to have
their conflicts and disputes resolved by judicial judgment will "pick"
distinctive characteristic of a kritarchy, therefore, is that it is
a political system without the institution of political rule. If we
think of it as "the rule of judges," we must remember that
these judges enjoy no particular privileges or special powers. Kritarchy
is not the rule of legislators, judges or any other category of privileged
officials. It is simply the rule of law.
Examples abound, recent as well
as historical, of kritarchy or near-kritarchy, and also of attempts
to use constitutions and other charters to introduce elements of kritarchy
as checks on the powers of states and governments. In many parts of
the world, even though they derive their authority merely from custom
and not from a conscious and explicit commitment to natural law, unwritten
customary laws memorized by clansmen frequently provide strong support
for the dispersal of power that characterizes kritarchy.
the end of the second millennium before Christ, the Hebrews lived in
a system described in the biblical book of the Judges. Their "judges"
were not judges in the technical sense of modern legal systems. They
were influential, respected men who provided leadership and counsel
without having power to coerce or tax. The history of Celtic and Germanic
peoples both before and during their confrontation with Roman imperialism
is replete with examples, as is the medieval period after the collapse
of the Roman Empire in the West. Kritarchy was firmly established in
medieval Ireland until the middle of the thirteenth century, and in
Frisia into the sixteenth century. In the first half of the nineteenth
century, European immigrants who settled in the Midwest and the Far
West of North America developed their own brand of kritarchy. Clan societies
in Asia and Africa adhere to some forms of kritarchy so far as they
have not been submerged in the statist structures imposed by the colonial
powers and taken over by indigenous political rulers in the post-colonial
these historical realizations or near-realizations of kritarchy may
suggest that it is a primitive political system, it should be borne
in mind that most of them fell victim to conquest or to the firm hold
on power established by military lords in times of war, who then turned
ostensibly temporary structures for the mobilization of men and resources
into a permanent apparatus of political rule. It is certainly true that
kritarchies are ill equipped to make or endure war for long periods
of time. The vulnerability of kritarchies in the face of massive military
operations is comparable to that of a small or technologically backward
state confronting the might of a large or technologically advanced neighbour.
This is a problem, however, that we can acknowledge without losing sight
of what a kritarchy has to offer for more "normal" times.
Democracy, despite some of its
advantages over other forms of political rule, is nevertheless a system
in which some presume to have the right to govern the rest regardless
of their consent. As such, it is unacceptable from the viewpoint of
natural law and is incompatible with the political system of kritarchy.
Under a democracy people vote to determine which individuals will be
their political representatives, and there is no fault in that. The
central defect and, in fact, the irreparable defect of democracy is
that it embodies the 'right' of the representatives to rule over those
who did not vote for them as well as over those who did. It allows the
elected rulers to violate the natural rights of people with impunity—at
least if they do so in a properly legal way by specifying in advance
and in sufficient detail how it should be done, by which magistrates
or officers of the state, where people can complain if they feel their
rights are improperly violated, and so forth. As in other systems of
political rule, however much formal independence of the legislature
and the executive the judiciary may enjoy, there is in a democracy no
truly independent—no non-governmental—police or judiciary
to which people can appeal. A democracy outlaws all independent sources
of protection of natural rights as a matter of constitutional necessity,
in order to make sure that no natural rights can be invoked against
the legal rights of democratic rule.
is often presented as "government by consent," but that is
never more than the consent of a majority and, as a rule not even that.
As a political device, democracy was no doubt a great invention. Regular
elections provide a rough mechanism for ensuring an alignment of rulers
and a sizeable part of the subjects over whom they rule. Elections thereby
help to prevent or minimize the violent confrontations and unrelenting
repression and exploitation that are permanent risks in other systems
of rule. Nevertheless, elections have no basis in natural law. To understand
this, it suffices to ask how a person could lawfully authorize another
to do what he himself has no right to do. The question is pertinent
because, to repeat, democracy is a system of political rule in which
there is a distinction between the rulers and the ruled, and between
the legal rights of the rulers and those of the ruled. If you attempted
to do to your neighbours what a democratic government does to its citizens,
let us say, tax them, fix their hours of work, force them to send their
children to schools of your choice, or accept the money you have printed,
you would very likely end up in jail. No democracy allows you to do
such things. Nor does it allow you to undertake these activities in
conspiracy with others. But it does allow you to have someone else do
them in your name and on your behalf! All you have to do is to vote
for your "political representative."
deny anyone the natural right to withdraw his consent, moreover, makes
a nation a closed community to which one is assigned by birth and for
life: a life sentence. The inability to withdraw consent—to secede—except
by permission of the government itself makes a farce of the whole idea
the great mystery of democracy is that "representatives" are
vested with powers the people who empowered them are not and should
not be allowed to exercise. Of course, the mystery is only apparent.
It disappears as soon as we recall the Hobbesian foundation of democracy,
that there is nothing wrong with injustice as long as it is properly
monopolized. More fundamentally, in a democracy every voter is assumed
to have a right to decide who should control the coercive monopoly and
rule everyone else in the state. That becomes obvious in the unlikely
scenario where only a single voter shows up at the polls. His vote then
decides which party should take over parliament and the government,
as if he were an absolute monarch picking his counsellors and ministers.
Constructions of Artificial Law
Leaving no room for the idea that
human beings are natural persons in a natural world, current legal and
political ideologies make any man or woman an artificial being, a "citizen,"
whose very essence is defined and created by the legal rules of the
state to which he or she belongs. Within the state, human beings have
no rights except in so far as some legal authority regulates their existence
and freedom. That is why the United Nations' Universal Declaration of
Human Rights, in its Articles 6 and 15, names "a legal personality"
and "a nationality" among the things people have a right to.
From the point of view of the Declaration's underlying philosophy, a
legal personality and a nationality, in a word, "citizenship,"
are desirable because they are the necessary conditions of legal existence
in the state. Without them a person is a nobody. Once we substitute
the perspective of legal rule for that of natural law, we must admit
that what a person has a right to do or to call his own depends, not
on what he is or does, but on his status in the legal order in which
he happens to find himself. He becomes an artificial person in an artificial
order, like a piece of wood that is assigned different "rights
and duties" depending on whether it is used in a game of chess,
checkers, or backgammon.
glorification of such artificial legal orders is common in contemporary
legal and political thought, where fiction seems invariably to triumph
over reality. These orders are based on artificial or imaginary distinctions
and on the neglect of or disregard for natural distinctions. Some of
them arbitrarily or systematically refuse to acknowledge certain persons
as persons at all. Others define some or all persons as being in some
or all respects a "part" of others, to which they are therefore
said to belong. Some go so far as to define human beings as parts of
non-existent imaginary or fictitious persons. In fact, however, natural
persons are never "parts" of other natural persons or legal
fictions. They may become members of some association or society, and
in that sense become "participants" in its activities, but
that does not imply that they are thereby mysteriously transformed in
mere "parts" of a person—nor does it imply that the association
is a person in its own right.
matter what the philosophical pretensions behind the constructions of
artificial law may be, they all share a common practical implication.
They deny the freedom and equality of certain human beings. These artificial
constructions cannot hide the fact that from the perspective of law
some people either do not exist at all or exist only in so far as they
are "represented" by others. Thus, by denying natural law
and the natural distinctions that constitute it, they conjure up an
idea of law that makes the non-consensual 'government' of one person
by another seem "lawful."
should be sufficiently clear by now that natural law is not a question
of idle speculation, but of natural fact. In this sense a kritarchy
is a political system based on respect for the facts of the human world.
Respect for natural law is therefore an objective category of human
action. Human actions that respect law are lawful and therefore just.
Those that do not are unlawful and unjust.
Justice in the general sense is
the art or skill of acting in conformity with law, with due regard for
the rights of other persons. In the particular "technical"
sense it is the art or skill of discovering rules, methods, and procedures
that effectively and efficiently provide for the defence and, if need
be, fortification and restoration of the law of the human world. The
discovery, refinement, and systematisation of such rules, methods, and
procedures are the proper field of jurisprudence as a rational discipline.
an evolved kritarchy, jurisprudence is the business of specialists—jurists—who
supply their skills in an open market to individuals and organizations.
In more complex societies, they render this service primarily to courts
of law, police forces, and other organizations involved in enforcing
observance of natural law and helping people make their actions conform
to the requirements of justice. As noted before, in a kritarchy neither
the courts of law nor the police forces have any legal monopoly. Their
clientele and membership remain free to shift their demand from an unsatisfactory
to a hopefully more satisfactory supplier of justice. Consequently,
courts of law and police forces in a kritarchy have a strong economic
incentive to avoid using violence or other coercive means to, say, compel
a person to appear in court, unless they have good reason to believe
that he is guilty as charged, is obstructing the course of justice,
or is not insured to cover his liabilities.
being above the law, the courts and police forces of a kritarchy always
run the risk, should they deprive others of their rights when justice
does not require it, of being charged with unlawful behaviour in another
court. That other court might be a competitor or a group of competitors.
It might also be a parliament, i.e. a representative body that acts
as a public guardian of the law. Such a parliament would sit only as
a court of law, however; it would not have the power to govern or to
make laws that restricted anyone's rights. However, it could be an effective
agent of justice, for instance by convincing the public that the courts
of law or police forces it convicts are not worthy of the public's trust,
or by convincing other organizations of justice to enforce its verdicts
against recalcitrant convicts. Because they need the consent of all
parties if they wish to avoid the risk of using violence against an
innocent person, the courts in a kritarchy must offer adequate guarantees
of competence and impartiality. They must do so in order to elicit the
cooperation of the accused and defendants as well as to assure the plaintiffs
and claimants, who initiate the proceedings, that their verdicts are
unlikely to be contested in another court. Short of seeking a monopoly
by the violent elimination of its competitors, an organisation of justice
has no alternative but to build up a solid reputation for justice.
out details, conventions, and protocols for an operational and efficient
system of justice is no mean task. Like every other significant practical
undertaking, it requires knowledge of the general principles of law
as well as experimentation with different types of organization for
supplying justice. It is the task of applying entrepreneurial creativity
to recombine available social, technical, administrative, and financial
resources and skills to improve the prospect for effective justice.
It is not likely that this task can be carried out with any consistency
within the stifling confines a legal monopoly. On this conviction, the
case for kritarchy rests.
Frank van Dun, born 1947 in Antwerp,
Belgium, studied law and philosophy at the University of Ghent. His
Ph.D. dissertation in 1982, The Fundamental Principle of Law
(in Dutch), attracted the attention of Michael van Notten, who used
it to develop his own views on freedom and law into a framework of thought
and action for his libertarian projects. Prof. van Dun teaches legal
theory, philosophy of law, fiscal theory, and logic at the universities
of Ghent and Maastricht. In addition to many papers on those subjects,
he has published two books in Dutch, one on Utopias (The Utopian
Temptation, 1997, with Hans Crombag) and another on fiscal practices
(Man, Citizen and Fisc, 2000).
This essay originally appeared as “Appendix B”
in Michael van Notten, THE LAW OF THE SOMALIS, Trenton: The Red Sea Press, 2005, pp.
187-196. Reprinted by permission of Spencer MacCallum and Isabelle van Notten.]