A Postcolonial Perspective: Law and the Literary World

I. Mapping a History of Somali Customary Law

Over the course of the twentieth century, land occupied by ethnic Somalis in the Horn of Africa was variously held by the British (British Somaliland), the Italians (Italian Somaliland), the French (present-day Djibouti), Kenya (the North Eastern Province), and Ethiopia (the Ogaden). Confronted by a stateless society, European colonists created individual power holders as authorities, but these “‘leaders’ lacked authority … and were treated as external representatives of an alien government.” ⁵ Nonetheless, throughout the colonial period, the traditional customary law system continued to function at the local and clan levels between Somalis, though it was banned at the level of colonial government. ⁶ Difficulties arose at independence when the colonizing powers “pushed the Somalis into establishing legal and political structures like those of Italy, England, and France, insensitive to the fact that these structures, now almost wholly imbued with statutory law after the victory of the doctrine of legislative sovereignty, reflected a culture totally unlike that of the Africans.” ⁷

The tradition of Somali customary law is distinctive because Xeer appears to be an indigenous African legal system that, as George Ayittey argues, can function without the trappings of a modern nation-state. Drawing on the work of Enrico Cerulli, who published the first study of Somali customary laws in 1919, and quoting van Notten, Ayittey notes, “‘Somali legal terminology is practically devoid of loan words from foreign languages. We can therefore safely conclude that the Somali law system is truly indigenous.’” ⁸ Its specificity to the context of the Horn of Africa suggests the limitations of analyzing Xeer only through the lens of Western frameworks and terminology. The practice of interpreting Somalia’s reality from perspectives grounded in Western legal and political systems has rendered the alternatives presented by Xeer in the so-called “failed state” nearly illegible. In contrast, van Notten observes, “Many commentators describe Somalia today as lawless and chaotic. But that description makes no sense. Most Somalis abide by the customary law and respect the verdicts of their courts of justice. Disorder prevails only in those few areas where politicians of the defunct Somali Republic, frequently called ‘warlords,’ still try to impose their will.” ⁹ Indeed, as Somalia descended into civil war in 1991, many clans employed customary law to settle and adjudicate disputes.

Significant differences between Somali Xeer and statutory law include Xeer’s separation from both religion and politics. Citing van Notten, Ayittey summarizes the six principles (dulaxaan gudaxaan) of the Somali legal system that bind all members of the community, which include the separation of law and politics and a plurality of jurisdictions and norms. ¹⁰ The laws themselves are

neither commands nor legislated rules although they may come to resemble them when applied and enforced at the discretion of a particular rule or official. They typically are conventions that have emerged and are respected spontaneously, without formal agreement, among people who have found them to be useful and otherwise agreeable to themselves as well as those with whom they have regular dealings. ¹¹

As demonstrated in the tax revolt case law, a judge is held to an equal if not higher standard in adhering to the laws of the clan, and can be deposed if his decisions contradict well-established custom. ¹² Rather than using a centralized police force to enforce laws, a customary court “enlists all able-bodied clansmen (waranle, literally ‘spearman’) to act as part-time policemen.” ¹³ Jurisdiction depends on whether one is a member of the clan rather than where an alleged offense occurred; as a result, laws “appl[y] to people not because they happen to live in a particular territory, but because they belong to a particular clan.” ¹⁴ Although modern nation-states have moved from customary to statutory systems, it would be a mistake to classify Xeer as ancient or static; with each successive new legal system introduced in ethnically-Somali territories, clans have adopted, adapted, and rejected aspects of these foreign legal systems, with the result that the various systems “have left their imprint on the practitioners of customary law.” ¹⁵ Xeer in turn is adapting “to forces of globalization, particularly in the urban economic sector where it has reinvented itself to accommodate modern crimes, business practices, and trading patterns.” ¹⁶

The difficulty of uniting ethnically-Somali territories into a Somali republic at independence was exacerbated by the diverse legal traditions established by respective colonial powers. The initial integration of the British and Italian Somalilands in 1960 required a Consultative Commission for Legislation. Its chairman, Paolo Contini, published The Somali Republic: An Experiment in Legal Integration in 1969, describing the process of negotiating a unified Somali government and the challenges that inhered in integrating the laws of the two territories. ¹⁷ While “[t]he Northern laws and institutions were those of a British dependency,” Contini notes, “the South followed the Italian system developed during the colonial and trustee period.” ¹⁸ Although Contini focuses on the integration of the British and Italian traditions, he acknowledges “the different legal systems coexisting in the country (common law, civil law, Islamic law and customary law) and their respective impact on the constitution, the laws and judicial decisions.” ¹⁹

Customary law, as practiced today, bears the traces of colonial encounters even as it adapts to the changing global landscape. And yet, Xeer maintains several distinctive characteristics not immediately intelligible if modern Anglo-American or European legal systems are our sole referent or the prism through which Xeer is understood. Xeer and statutory systems differ on their respective emphases on the oral and written, custom and precedent. In customary law systems, “norms and rules are actively produced, enforced and recreated,” and so “[a]ny written version of it is likely to become quickly outdated.” ²⁰ At the same time, this adaptability has also permitted Xeer to maintain its integrity as a legal system despite its interaction with foreign legal systems. ²¹ Xeer is also distinctive for its emphasis on clan or kinship networks in determining jurisdiction, while modern nation-states stress consolidated domains demarcated by clear territorial boundaries. The Ogaden territory specifically exemplifies the contradictions and complications resulting from colonial (European and African alike) engagements and their attendant legal systems. ²² When Nuruddin Farah selects the Ogaden in 1977 as his setting for Maps, he not only evokes the struggle to reunite the territory with the greater Somali Republic, but also questions the efficacy of territorial boundaries to delineate difference and determine belonging. As we will see, Maps concludes with explicit reference to judgment within the context of a legal system. My approach to the novel, given the history of competing legal systems within Somali territories, considers what is legible and what is obscured when we assume a Western legal system model, and then expands the law and literature reading to consider the ways that Maps engages with the structures and traditions of Xeer trials and customs.

II. Charting a New Course in Maps

If Xeer embodies Somali cultural and social customs and conventions, the emphasis on kinship over territory implies that the ability of maps to outline and circumscribe the rule of law is always already in dispute. The novel’s title directly invokes the nationalistic movements for the Ogaden’s secession from Ethiopia, but Farah’s focus on family, surrogacy, and kinship through the figure of the Somali Askar and his foster mother Misra (an Oromo Ethiopian) complicate the determination of belonging and allegiance. Fragmentation and decentralization describe not only Somalia, its legal systems, and Xeer, but also the narrative structure of Maps. The use of multiple, decentralized pronouns in the novel, I will argue, takes on additional significance given the multiplicity and disunity of legal systems functioning within the boundaries of “Somalia.” Reading Maps through the lens of postcolonial law and literature makes visible the violence that can inhere in the imposition of legal frameworks that require postcolonial subjects to relate their stories in constrained ways.

Farah is one of Somalia’s most prolific and lauded writers, and his oeuvre, beginning in the 1960s, spans Somalia’s independence, coups, civil war, and contemporary struggles to establish stability. Farah’s fiction reflects Somalia’s resistance to centralized government, and he famously characterized his writing as an effort to keep his country alive. ²³ In Maps, Somalia’s struggles are allegorized through Askar, whose sense of self is inextricably tied to the conflict between Ethiopia and ethnic Somalis in the Ogaden. Askar’s father died during the Ethiopian civil war and his mother dies shortly after childbirth, so he is raised by Misra, an exile from Ethiopia, in the Ethiopian-controlled Ogaden. When war erupts between Ethiopia and Somalia, Askar moves to Mogadiscio to live with his aunt and uncle, who hope he will pursue college rather than join the resistance movement in the Ogaden. Before he can make his decision, Misra comes to the capital; her sudden presence threatens both Askar’s fragile sense of self and his political commitments because she is accused of betraying the Somali cause and giving information to the Ethiopians, resulting in the death of over 600 Somalis in the Ogaden. Given that Misra is an Oromo Ethiopian and thus ethnically and nationally other, Ogaden Somalis are quick to believe in her guilt, but Askar’s loyalties remain divided. The novel ends after Misra’s body is discovered, mutilated and dumped in the ocean; the police then take Askar in for questioning. Although the novel does not conclusively point to Askar being directly involved in Misra’s murder, Farah suggests that Askar is “guilty” of something – but whether that something is murder, betrayal, or the abandonment of his surrogate “family” is left unsettled.

Askar’s story is undoubtedly a traumatic one; his parents die at the time of his birth, and he is tremendously attached to Misra. The outbreak of the Ogaden War, when Somali forces invaded the Ethiopian-controlled Ogaden territory, forces him to grapple with his identification with Misra, challenging his sense of self and his burgeoning national identity. After arriving in Mogadiscio from the Ogaden, Askar confesses to his uncle that he believes his mother’s death was necessary for his birth and that he has menstruated. In response, his uncle burns all of his research on the trauma suffered by children during war, explaining that “he had been moving in the wrong direction all along.” ²⁴ This act suggests that as we read Maps, we should consider the ways in which Askar’s story might encourage us to burn ill-fitting paradigms from trauma studies, and to be open to the new ways that the novel engages trauma and storytelling.

Each chapter is told predominantly using one pronoun, alternatingly the first-person “I,” the second-person “you,” and the third-person “he.” The chapters are not constrained in time, however, gliding between Askar’s childhood and present. Critics wrestle with the pronouns that structure the text, struggling to identify their significance and often anchoring their function in relation to Askar’s traumatic childhood or fragmented personal identity. The most common interpretive move is to read the characters on a metaphorical scale, aligning the nation of Somalia for example with Askar, and interpreting Askar’s question, “Who is Askar?” ²⁵ as directly interrogating the meaning and possibility of a united Somalia whose identity depends on its distinction and difference from Ethiopia (Misra). ²⁶

Although Rhonda Cobham is primarily interested in the way the novel problematizes myths of gender and nationalism, her reading is one of the few to pause on the possibility that the three personal pronouns correspond to the perspectives of judge, witness, and audience that are evoked in the novel’s final pages. The “I” voice, in her view, becomes the one most closely aligned with Askar’s quest for self-identity, the “he” corresponds to the audience, and the “you” voice attempts to establish Askar’s independent selfhood. ²⁷ She notes that the first-person perspective tends to be “more sympathetic” toward Askar, whereas the second-person perspective “is clearly associated with the judgmental or accusatory presence in the narrative,” and the third-person voice at times appears to be “the perspective of an elusive audience,” but also “a record of the political events in Somalia and the Ogaden,” and even at times “the consciousness of a mature Askar.” Cobham does not dwell on the significance of the juridical framework, as the main focus of her argument is Farah’s destabilization of gender and national identities. Nevertheless, Cobham’s observation is suggestive of the ways that trauma, storytelling, and the law are connected in the narrative structure of Maps.

I contend that the moment in the text Cobham references to fasten the roles of the pronouns to the positions of judge, witness, and audience deserves a more expansive reading through a law and literature framework. After Misra’s death, Askar asks, “Who is Askar?” minutes before the police arrive to ask a similar question. Askar is taken to the police station to be questioned about his relationship to Misra and possible involvement in her murder and the book ends with a reflection on the interrogation that reaches back to the novel’s opening pages:

And that was how it began – the story of (Misra/Misrat/Masarat and) Askar. First, he told it plainly and without embellishment, answering the police officer’s questions; then he told it to men in gowns … And time grew on Askar’s face, as he told the story yet again … In the process, he became the defendant. He was, at one and the same time, the plaintiff and the juror. Finally, allowing for his different personae to act as judge, as audience and witness, Askar told it to himself. ²⁸

I agree with Cobham’s assessment, insofar as I view the pronouns’ relationship to legal frameworks and institutions as essential to understanding the narrative’s structure. The relationship of storytelling to legal proceedings, moreover, is well documented in law and literature scholarship. ²⁹ However, Cobham’s reading neglects the critical stance that Maps takes on the role of storytelling and the various positions that the act of storytelling asks us to take up in the process, and the assumptions this critical commentary on juridical frameworks offers. As Charles Sugnet observes in a response to Cobham’s reading, “Note how the epistemological anchors of policing and judging to which Cobham appeals suggest territorialization, how they almost require a state and a state apparatus. Can a man without a country be tried and convicted?” ³⁰

The novel’s evocation of the courtroom setting provides one possible interpretation of Askar’s story and its multi-perspective narrative form, following Cobham, but the juridical framework combined with the novel’s interest in representing trauma provides two other avenues for understanding the role of narration. First, as Askar struggles simultaneously to describe his relationship to Misra and the circumstances of her death, the novel probes the extent to which trauma is narrate-able. Second, because the juridical framework itself forces Askar to take up specific positions in relation to his story, we may read the imperative to tell the story to the police, structured in ways that the law recognizes, as implicating the judicial process in inflicting additional trauma. The relationship between testimony and trauma is complex, but it is clear that the act of testifying entails that the witness assume a position in relation to the story being told, and that this positioning – in a courtroom, on a stand – influences the narrative itself. “To testify,” Shoshana Felman writes, “is always, metaphorically, to take the witness stand, or to take the position of the witness insofar as the narrative account of the witness is at once engaged in an appeal and bound by an oath.” ³¹ In the same vein but in the context of the Truth and Reconciliation Commission proceedings in South Africa, Mark Sanders observes that “stories are shaped in particular ways when they are told in order to make cases at law.” ³² While Sanders admits that testimony can “question and transform” what the law itself sets out to do, in Maps Farah does not suggest such a dialectical relationship. In order for the truth to be determined as the law demands it, violence is done to Askar’s story and subsequently, also his sense of self. ³³

Maps resists a simplistic endorsement of testifying to trauma by underscoring its complicated consequences, revealing both its productive possibilities and its limitations. ³⁴ I do not wholly discount the utility of testimony or narrative renderings of trauma to achieve psychic or societal reconciliation, but Maps points to the ways in which the imperative to tell – especially at the behest of legal systems – can contort and even further obscure the pursuit of truth. Askar confronts this difficulty, admitting, “I cannot vouch for the accuracy of my memory here. Possibly I’ve invented one or two things, perhaps I have intentionally deviated from the true course of events. Although I tend to think that I am remembering in precise detail how things happened and what was said.” ³⁵ Askar, then, also indicates that our confidence in recounting events does not guarantee the reliable “truth” of the testimony. If the novel is successful as a “traumatic testimony of colonial occupation,” as Michelle Lynn Brown argues, it is in part because its structure resists the linear, consistent, and reliable testimony privileged as evidence in Western legal systems. ³⁶ Its success, in other words, depends on its flouting of the standards of so-called reliable testimony. Maps brings to the fore assumptions about what might count as testimony, as well as how we receive these stories in relation to witnessing and truth. ³⁷

While Askar may “tell it to himself” in order to better understand the trauma of Misra’s death, the law demands that he tell it in order for it to be evaluated for its truthfulness. We would do well to remember, Leigh Gilmore writes in a study of trauma and testimony, that “testimonial projects require subjects to confess, to bear witness, to make public and shareable a private and intolerable pain,” and that this process forces subjects to “enter into a legalistic frame in which their efforts can move quickly beyond their interpretation and control, become exposed as ambiguous, and therefore subject to judgments about their veracity and truth.” ³⁸ Significantly, Maps confirms Gilmore’s conclusion that “[i]n requiring testimony to take certain forms, judgment defines what cannot be said as much as what can, and, in establishing these forms as truthful, produces form as the grounds for experimentation.” ³⁹

On the one hand, then, if we assume that the legal system evoked in the novel’s final passage is modeled on Western legal systems (where the roles of judge, jury, witness, and police are specialized and separate, and depend on a stable state apparatus), we can understand the estrangement Askar experiences in putting his story – the story of relationship to Misra and complicated issues of kinship and belonging – into the requisite form of a legal deposition. Law and literature scholars have noted the imbrication of law in narrative as well as the violence of form on stories that do not easily conform to the required generic conventions. Peter Brooks’s observations are representative of the general critique:

If law rarely recognizes overtly how much it is intricated [sic] with narrative, it may nonetheless implicitly acknowledge the power of legal storytelling in its efforts at policing narrative: the ways in which it limits and formalizes the conditions of telling, in order to assure that narratives reach those charged with judging them in controlled, rule-governed forms … The fragmented, contradictious, murky unfolding of narrative in the courtroom is subject to formulae by which the law attempts to impose rule on story, to limit its free play and extent. ⁴⁰

The novel’s close, which is endlessly recursive in its demand to retell again and again from multiple perspectives, is an evocation to tell, to share, and to try to understand the possibilities and limitations of narrating trauma. At the same time, the surprising twist that the retellings are occasioned by law enforcement’s investigation raises questions about the forms traumatic retellings should take in pursuit of “truth.”

On the other hand, what if a Western legal system is not the sole referent for the language of courtrooms and law? How might our reading of Maps and its critique of law and narrative benefit if its specific location and cultural context are taken into consideration? One new emphasis might be the relationship to the Somali oral tradition shared by Maps and Xeer. With reference to Maps, Francesca Kazan notes that “the procedure of endless telling and re-telling from a variety of perspectives draws on Somalia’s oral tradition.” ⁴¹ Xeer is passed down orally, but also, traditionally “[o]ne person is employed to memorise, repeat, and summarise the oral proceedings for the elders” during customary law proceedings. ⁴² Ahmed Sheikh Ali Burale’s The Somali Customary Laws is one of the first attempts to codify Xeer in written form, and Burale additionally notes the central role of oral testimony in evidentiary procedures; witnesses’ oral testimonies “were the only evidence the courts produced for settling dispute between two persons or groups.” ⁴³ In these ways, the novel’s ending that calls for retellings from different perspectives evokes Xeer’s procedures and format. A postcolonial law and literature perspective would be attuned not only to the way that orality can index a challenge to prevailing structures of knowledge, but also to the significance and function of orality in non-Western legal systems as well. Although he does not reference Farah’s Maps, Neil ten Kortenaar’s general observations about postcolonial literature and law are instructive and summarize the need for a particularly postcolonial approach to law and literature scholarship, especially with regard to orality: “The law imposed by the colonizer, like the institution of literature, is based on writing … It does not know what to do with, say, oral testimony: claims to territory or authority based on inherited memories.” ⁴⁴

The fact that Askar feels guilty for Misra’s death despite, ostensibly, not committing any “crime,” should also give us caution before we assume that the Maps’s courtroom is necessarily a Western one. Reed Way Dasenbrock concludes that “not a lot hangs on whether Askar actually killed Misra or not. The crucial point,” in his view, “is that he might well have killed her, that as Misra herself understood, killing her is a logical outgrowth of the politics to which he has committed himself.” ⁴⁵ My contention, in framing my reading of Maps with a discussion of the multiplicity of legal systems co-existing in Somalia generally and the Ogaden in particular, is that this ambiguity over Misra’s death also points to the indeterminacy of what constitutes a crime. Maps leaves open not only what Askar did (or did not do), but also the ethical or legal framework that imposes on Askar such strong feelings of guilt and responsibility.

To be clear, Maps does not explicitly name Xeer or customary law as its referent when Askar points to the exigency created by a legal system to tell and retell his story; that is not my claim. What I am interested in, however, is how the diversity of coexisting legal systems in Somalia, and the Ogaden specifically, point to a more expansive reading of the novel in a postcolonial law and literature context. When we leave open the possibility that the legal terms apply to or evoke customary law as much as they might Western legal systems, we can better attend to the realities in Somalia that Maps addresses: the troubled history of the integration of legal systems; clan-based systems that give Xeer jurisdiction and frustrate Askar’s sense of belonging and bloodlines; and the role of oral recounting in the service of truth and justice. Furthermore, Xeer’s emphasis on restorative justice – creating and maintaining social bonds and community – resonates with Askar’s desire to repair his fragmented self in relation to his increasingly fragmented community and nation. The novel and customary law share several qualities of the same narrative form, which makes it problematic to assume the Western courtroom as the sole or primary referent for Farah’s characters.

In addition to the registers of national trauma and individual trauma, the narrative voices of Maps add “juridical trauma” to the myriad ways we can understand the ambiguities and tensions among the three narrative voices. The legal systems we envision as implicated in the novel’s final reference to judgments and courtrooms additionally influence our understanding of the novel’s engagement with law and narrative. In our pursuit of truth, Maps cautions us to consider the various factors that affect, compel, and therefore formally shape the stories we tell.

III. Plotting Directions for Postcolonial Perspectives on Law and Literature

Reading Maps through a postcolonial law and literature lens permits a more robust understanding of Askar’s difficult struggle for self-identity and national belonging, especially since postcolonial approaches tend to focus on conflicts between European imperial powers and the postcolonial state. The history of Xeer and its interaction with a range of legal systems demonstrates the dynamic interplay between European colonizing powers, African colonizing powers, and pre-colonial histories. The way the narrative structure reflects a crisis of self through the multiple pronouns and fragmented perspective is thoroughly documented by scholars. But the perspective presented in this commentary links interrogations of the self and the nation with the law – both processes for the determination of “truth” such as courts and police interrogation, and the legal rules and procedures that regulate citizenry and national sovereignty.

My reading of Maps, which considers the complicated constellation of coexisting legal systems in the Ogaden, stresses the importance of resisting a unidirectional approach that looks to postcolonial contexts only to illuminate taken-for-granted Anglo-American legal concepts. The locally-specific context of Maps and Xeer allows us to approach the issues of testimony and narrative storytelling in a more nuanced and situated way. ⁴⁶ Although Maps is a suggestive case study, the history of the imbrication of law and literature in the colonial consolidation and maintenance of power lends further support to the need for a postcolonial perspective on law and literature. ⁴⁷ Kieran Dolin remarks that law and literature “played an important role in inculcating the ideology of imperialism” but also notes that in the hands of Mahatma Gandhi and Nelson Mandela, literature and law could also “be tools of resistance as well as tools of oppression in the colonial context.” ⁴⁸ Postcolonial studies of law and literature not only provide challenges and alternatives to Western narratives of imperialism, but they also illuminate the mechanisms, the assumptions, and the biases integral to both law and literature in the colonial context.

The study of law and literature must include both an interrogation of the various positions that the act of narration asks us to take up, and the locally-historic ways these positions are configured. Specific postcolonial texts that foreground the imposition of legal frameworks are rich places to extend the study of law and literature, giving us, in Charlotte Epstein’s words, “first and foremost a place where to theorize from.” ⁴⁹ Novels such as Maps, when paired with insights gained from postcolonial scholarship, make visible the distortion that can occur under the imperative to tell in recognized, legally legible forms modeled in the West’s image, and remind us of the dimensions of power implicit in, as well as under examination by, the study of law and literature.