The customary law of the Ciise

"God created me from a drop of sperm, and my father left me a customary law."

The customary law (Xeer) of the Ciise clan was established at the end of the 16th century. Where was Europe at that time? Who ruled it? What was the mindset of the people of that era? If we answer these questions, we see that Europe was then under the influence of kings and the Christian clergy. Economic and military power was in their hands, and virtually no other structured movement existed. Relations between Europe and the Horn of Africa were limited at the time, and often marked by expeditions or incursions.

A piece of wisdom attributed to the scholar Geeddi Dadar states: "O God, do not judge me according to the appearances I perceive, and do not leave me prisoner to my prejudices." Geeddi wanted to emphasise that the Xeer is a work of human intelligence and not an intangible divine revelation. Like any human creation, it can contain both righteous aspects and imperfections. Divine revelation, on the other hand, is sacred and immutable.

Another perspective also views the Xeer as the product of human reflection and experience. In reality, it is a set of rules developed and approved by men. To evaluate it properly, one must take into account the historical, political, economic, and security context of the time. Conditions then were harsh: the economy was weak, security was precarious, and the general situation was complex.

Justice did not rely on solid institutions, and there were no specialists trained in judicial practice. There was no strong central state; political structures were weakened. Nor was there a powerful religious state claiming authority over a territory and a population. Society faced threats both on a religious level and to its very survival, standing near collapse. In order to preserve the community and ensure its continuity, the elders of the time decided to establish a Xeer. As a Somali proverb says: "When a man of knowledge leaves a legacy, his community does not disperse."

Ancient Somali societies did not have a writing system to record the events of their era. Their collective memory was transmitted through poetry, proverbs, maxims, riddles, and other forms of oral literature. The expression "my father left me a customary law" refers to the efforts of the elders to preserve and transmit their legal work; it does not mean that they sought to distance themselves from religion.

Two main interpretations have been given to this expression. The first asserts that the Ciise Xeer constitutes a form of secularism born in the Horn of Africa even before the emergence of secularism in Europe. The second, opposing the first, considers instead that anything resembling secularism is to be condemned.

The Xeer has not been the subject of in-depth studies that would allow its initial objectives to be precisely determined, nor detailed analyses of its structure and foundations. To ensure its preservation and transmission, the elders used rhyming and easily memorised terms, particularly relating to blood, compensation, land, injuries, damages, and other similar concepts. The Xeer rests on two fundamental principles called Kab iyo Karin, which can be compared, within the methodology of Islamic law (Usūl al-Fiqh), to the notions of "proof" and "analogical reasoning." Knowledge of Islamic law guided the elders gathered at Sitti to draft this customary legislation, as society drew its inspiration from Islam. Scholars specialised in Islamic jurisprudence participated in its founding. This reality is illustrated by the fact that several lineages of the Ciise community trace their descent back to ancestors whose names contain the term "Fiqi," such as Fiqi Yoonis, Fiqi Cabdalle, Fiqi Jibriil, or Fiqi Xaaji. These names bear witness to the existence, at that time, of educated men well-versed in the Quran and the religious sciences.

In summary, the debate between the two opposing currents on the question of the Xeer's secularism reveals, above all, the existence of an ancient historical heritage and a refined body of knowledge resulting from deep intellectual reflection.

Islam granted special protection to five fundamental elements: life, property, intellect, religion, and honour. These five principles constitute the bedrock of a Muslim's existence. They also form the philosophical foundation of the Ciise Xeer, whose inspiration is deeply Islamic. The Xeer is thus derived from the intellectual and moral heritage of Islam.

The Ciise Xeer comprises six major domains, or six primary categories: blood (dhiig), compensation (dheer), movements and reparations (dhaqaaqal), land (dhul), customs (dhaqan), and sanctions or prohibitions (dhible). These six categories are closely linked to the five fundamental principles known in Arabic as Al-Kulliyyāt Al-Khams. Without knowledge of these principles, it would have been impossible to design and organise the Ciise Xeer.

Anyone wishing to evaluate or comment on this customary law should conduct a thorough study of its objectives and foundations, without being influenced by the two opposing camps fighting over the question of its secularism. As a Somali proverb says: "A human being may be tested, but they must also know how to preserve their judgment."

Abuubakar Fariid Buux