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Xeer, pronounced (:ħeːr), is the polycentric legal system of Somalia. Under this system, elders serve as judges and help mediate cases using precedents.〔 〕 It is an example of how customary law works within a stateless society and closely resembles the natural law principle.〔Steven Knotter, Rob de Lobel, Lena Tsipouri, Vanja Stenius, ''Diversity Research and Policy: A Multidisciplinary Exploration'', (Amsterdam University Press: 2011), p.211.〕 Several scholars have noted that even though Xeer may be centuries old, it has the potential to serve as the legal system of a modern, well-functioning economy.〔〔(【引用サイトリンク】url=https://web.archive.org/web/20120309104336/http://freeafrica.org/Archives/commentary%20407/commentaries18.html )〕 According to Spencer Heath MacCallum, the Somali nation did not begin with the common use of the Somali language by the clans, but rather with the collective observance of Xeer. Xeer is thus referred to as being both the father and child of the Somali nation. An analogous phenomenon is said to have occurred among the neighboring Oromo nation, which is now under Ethiopian rule. Under Xeer, there is no authority that dictates what the law should be. The law is instead discovered by judges as they determine the best way to resolve a dispute. As such, the Somali nation by tradition is a stateless society; that is, Somalis have never accepted the authority of any central government, their own or any other.〔 Under Xeer law, Somalia forms a kritarchy and conforms in many respects to natural law. The lack of a central governing authority means that there is a slight variation in the interpretation of Xeer amongst different communities. The laws that are widely accepted are called ''xeer guud'' and those particular to a specific community are referred to as ''xeer tolnimo''. As with law systems in Western states, the Xeer legal system also demands a certain amount of specialization of different functions within the legal framework. Thus, one can find ''odayal'' (judges), ''xeer boggeyaal'' (jurists), ''guurtiyaal'' (detectives), ''garxajiyaal'' (attorneys), ''murkhaatiyal'' (witnesses) and ''waranle'' (police officers) to enforce the law.〔 ==History== The Xeer legal system is assumed to have developed exclusively in the Horn of Africa since approximately the 7th century. There is no evidence that it developed elsewhere or was greatly influenced by any foreign legal system. The fact that Somali legal terminology is practically devoid of loan words from foreign languages suggests that the Xeer is truly indigenous. Xeer remained the only foundational system of justice and public order for Somalis until the arrival of Europeans in the late 19th century. After nearly a century of trade ties stemming from European exploration and maritime access to the Indian sub-continent, Britain and Italy established more permanent settlements in Somali territory with the formation of the British Somaliland protectorate in 1886 and Italian Somaliland in 1893.〔 The two European authorities imported their own national legal systems, but the degree to which the latter applied to the Somali clans varied depending on the purpose and aim of each of the foreign powers. The British, who were principally interested in securing the flow of cattle supplies to Aden in Yemen just across the Red Sea from the Somali lands, were content to rule indirectly. The Italians, on the other hand, established significant settlements in the south. In British Somaliland, the judicial system included the Protectorate Court responsible for all penal matters, first- and second-class district courts, and Kadis Courts. Indirect rule there imposed a more coherent set of laws by explicitly distinguishing between the various jurisdictions of customary, sharia and state statutory legal systems. The 1898 Principal Order-in-Council recognized that Somalis were bound by customary law. The 1937 Kadis Court Ordinance and the 1947 Subordinate Court Ordinance recognized the application of sharia to issues including marriage, divorce, family relationships, personal material responsibilities, and inheritance. By contrast, cases in which the British administration held particular interest were subject to the jurisdiction of the Common Law, Somaliland Ordinances, applicable UK laws, and the Indian Penal Code, as applied at the high court and district courts. Together with limited legal training for Somalis, this served to instill adherence to a common law judicial system in the northern Somali regions. By contrast, in Italian Somaliland, the Italian civil and penal codes were adopted. However, at first they were applied particularly to foreign nationals rather than Somalis. According to Law No. 161 (5 April 1908), the Italian authority instead recognized Somalis as subject to customary law and sharia, and Royal Decree No. 937 (8 June 1911) established separate sharia courts to preside over Somali family and inheritance matters. By the end of the pre-independence period, however, both Somalis and foreign nationals were subject to a judicial system in three parts. Civil cases were heard by district, regional and appeals courts; penal cases were addressed by assize courts of first-instance and of appeal; and Somalis and other Muslims had access for family matters and minor civil disputes to be heard by qadi courts of first-instance and appeal. The supreme court heard appeals issuing from each of these subordinate courts, as well as deciding matters of jurisdiction between them. Despite the obvious differences in the content of their laws and the distinctions between the British common law legacy in the north and the Italian civil law legacy in the south, the development of the judicial system in both areas was remarkably similar on three fronts. First, both administrations established the supremacy of codified and secular Western law, particularly for significant criminal matters. Second, however, both administrations allowed affairs between Somalis to be settled through customary xeer, at least when threats to the general public order were not concerned. Third, independent judicial mechanisms were established to apply sharia to family and minor civil matters. Overall, this judicial system maintained a formal governance apparatus that was able to regulate, but not displace, the continued practice of Somali customary justice. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「xeer」の詳細全文を読む スポンサード リンク
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