ASSOSA UNIVERSITY

SCHOOL OF LAW

Definition of legal history:

 legal history is a systematic study of past legal systems.
 Legal history thus studies the origin and development of past legal systems,
both early and modern legal systems.
 Legal history compares and contrasts the various past legal systems of the
world.
Reasons for studying legal history:
Legal history is important to clarify the present legal systems.

The present legal systems stand on the past. Thus, the present legal systems do not
exist in isolation from the past. The present legal systems are the products of very long
historical processes. Secondly, the study of legal history is important not only to
appreciate the present legal systems but also to help us solve legal problems of to day.

 aprooaches to legal history:

There are four major approaches in studying legal history and traditions.
1. Unitary or isolationist approach: states that the subject of legal history should focus on
the past societies themselves, the legal rules, legal principles, legal standards and the
changes therein by disregarding factors such as social, political and economic for the sole
purpose of understanding those past systems. This approach is called the
2. Holistic or the sociological approach: It refers to the inclusion of economic, religious,
social political institutions of past societies.The sociological conception rests on the idea
that society is a whole and is not made of separate elements. The sociological approach
assumes further that a society is made up of interrelated elements that are constantly
interacting with one another. Thus, the economic and social organizations of the society
exert upon the law
3. Technical approach: states that legal history should limit itself to gather the legal
problems and understand the legal reasons why these solutions were chosen by past

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societies. It proposes that the present society should use the legal solutions the past
society adopted when current societies face similar problems. There is a need to study the
history of the laws of the past to gather legal problems and to understand the reasons why
these solutions were chosen plus the technical arguments and reasoning by which they
have been justified by these societies.
4. Mixed approach :is a combination of the unitary, the holistic and technical approaches.
This mixed approach bases itself on the idea that the three approaches have positive
elements, which need to be taken into account when studying legal history and legal
traditions.

 The concept of legal system:

 A system implies that there are several elements put together to achieve a certain
purpose.
 A legal system is a synergy of legal rules, legal principles, legal standards, legal
policies, legal structures, legal tradition, legal actors, legal extension and legal
penetration operating in a given geographical area. The term `synergy` in this
definition implies that legal system is not a mere summation of the elements listed.
 The complexity of a legal system varies depending on the stage of
development of a country.
 A legal system may refer to the present or the past legal system. The
purpose of legal system may be to sustain a slave-owning system or a
feudal system or a capitalist system or to build a communist system. A
legal system may be created to assure the survival of a theocratic
system.
 A legal system may exist at local level or national or regional or international
level.
 Legal structure encompasses law schools, bar associations, the police,
courts, the legislature, the executive and prison administration. Legal
structure means all those institutions responsible for creating, modifying,
interpreting, improving and implementing laws.
 The structure has legal actors, which means the persons acting in legal structures, meaning members of
the parliament, officers of the state, law students, law teachers, legal practitioners, etc.

 Classification of legal systems:

 Currently, there are about two hundred legal systems in the world. It is not possible
nor desirable to learn about all of them. Thus, it appears to be wise to consider only
the major legal systems of the world. A legal system is taken as a major legal
system based on such factors as its influence on the development of other legal
systems; its geographical spread, the technological and economic advances of the
country being classified.
Tests of Classification:
 There is no consensus on the proper criteria for the classification of legal traditions
among legal historians. A great number of researchers have proposed a variety of
criteria in their efforts to categorize systems into groups. Some of these criteria are:
race, geography, language, sources of law, substance of law, ideology, legal
technique and the system of conception of justice.

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 How many legal styles a scholar identifies and how he/she identifies them are
largely matters of his/her judgment. His/her aim must, however, be to see the
differences in reality, past and present, contained in distinctive form of economic life.
One indication of the importance of a feature in a legal system is if a person from
another system finds it surprising; if it is easier to discover the stylistically distinctive
elements in a foreign system in one’s own.
 Zweigert and Kotz identify five elements constituting the legal style of any legal
system. These are historical background and development, predominant
characteristics modes of thought in legal matters (especially distinctive institutions),
the kind of legal sources it acknowledges and the way it handles them and ideology.
Next, description of two of these factors is given.
A. Legal Convergence and Divergence
Legal divergence and legal convergence are two opposing forces.
Legal convergence brings legal systems of the world closer to one another while legal
divergence drifts them apart.
Legal convergence simplifies legal rules and institutions for the lawyers, as legal convergence
rests on uniformity. Legal divergence, on the other hand, complicates legal rules and
institutions, as legal divergence rests on essential differences.
Both concepts could be seen as matters of degree and process.
Legal convergence has different levels; for instance, one can speak of the convergence of the
African legal systems, the legal systems of a given federal state, the legal systems of Europe
and global convergence.

 Definition of legal divergence:

 Going apart also called legal divergence shows non-uniformity in legal systems.

 Legal divergence focuses on differences in rules, legal institutions among legal systems of the world.

 A combination of many factors leads to and maintains legal divergence. Legal divergence should be
seen as a process and degree. Legal divergence should be seen as a process because it may have a lot
of aspects and steps. Legal divergence should be seen as a degree because at the same time there is a
tendency of legal convergence.

 Definition of legal convergence:

 Deals with the factors that make two or more legal systems alike.

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 Legal convergence, like legal divergence, is a matter of scale because you cannot find two legal
systems that are exactly identical.

 However, you may find two or more legal systems that are substantially similar. Likewise, it is
unlikely for you to get two or more legal systems that are percent dissimilar.

 Legal convergence is a process because, on some occasions, you may find several factors that bring
two or more legal systems of the world closer to one another.

 Importance of legal convergence:

 Legal convergence brings about simplicity and certainty in the application of laws. Legal
convergence thus enhances predictability of the application of laws among several legal
systems.

 Legal convergence is important for international transactions, as lawyers would get the
chance to apply a similar legal rule all over the world. The elimination of differences in the
national legal systems facilitates international transactions, increases the general welfare,
promotes the diffusion of culture and leads to international understanding.

 Legal convergence also pushes human beings away from the excesses of legal nationalism
(a doctrine that unduly focuses on differences of laws across nations). Legal convergence
suggests that human beings, even if they live in different and separate territories, share
essential commonality. Thus, legal convergence promotes a sense of closeness.
 Factors impeding legal convergence:
 National legal systems do not want to lose their cherished aspects of legal systems. There is likely to
be conservative inertia, which means a tendency to cling to the familiar and to treat it as organically
rooted in the culture, rather than as mere superficial structure.
 Lawyers may think of their legal systems as important. They may resist efforts to deprive their legal
order of its unique features. It takes a strongly persuasive case to overcome this kind of legal
nationalism.
 The current trend:
 From at least the time of Cicero, differences between legal systems have been regarded as
inconveniences that have to be overcome.
 The common law and civil law systems are clearly differentiated just in historical heritage.
These two systems are also different in a wide range of matters including their sources of
law, the structure of their legal professions and legal education, divisions of law, their court
structures and fundamental attitudes to law and legal philosophy. Yet, the two systems
have similarities in the way they deal with various aspects of sales of goods, contract and in
their forms of business organization.

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 Current trend shows that, despite a different attitude towards case law and legislation, both
systems are ‘converging’ in their use of both these sources of law. In England, there has
been a noticeable and fairly dramatic increase in the amount of legislation since 1979. The
English legal system has begun to make more active use of the legislative process, as a
means of implementing more speedy legal reforms rather than to allow the courts to develop
the law at their own pace, as they have been doing for several 100 years.
 On the other hand, civil law systems are beginning to rely increasingly on case law,
particularly in the German constitutional courts and the French administrative courts. Even
in subject areas where Codes and statutes have traditionally been the single authoritative
source, the discovery of several ‘gaps’ in the law has meant that the judges have been given
a far greater ‘lawmaking role’.
 Since the two main Civil Codes were enacted in the early and late 19 th century in France and
Germany, the drafters could not have anticipated the pace, scale or technology of the
modern 20th century. Civil law judges have, therefore, had to create new legal rules to cope
with situations that could not have been envisaged by the legislators of the Codes. The
French law on torts is, therefore, primarily found in widely published and cited decisions of
the courts. Common law judges have always had a high profile and have resorted to judicial
law making whenever a ‘gap’ has appeared in the statute or in cases where the statute has
been ambiguous or could produce a manifestly absurd or unjust result.
 German lawyers and judges continue to rely very heavily on the short Commentary on the
German Civil Code for daily practice, which contains thousands of cases. This again
resembles common law legal practice, although there is no doctrine of binding precedent, as
such, on the continent.
 There has also been a growth in public administration, in Europe, which has accompanied
this decline in legislative authority. Members of the public administration itself, sitting in a
council of State, decide on the propriety and legality of State administrative actions. In
England, there has been a dramatic increase in the use of the application for judicial review
of administrative actions and most of the law is laid down by parliament. Further, most of
the non-legislative law is being created by the growing network of administrative tribunals.
Case law has tended to feature heavily in the German Constitutional Court and French
administrative court. However, recent cases tend to indicate that the distinction between
public and private law is breaking down both on the European continent and in England.
 Apart from these developments, there has been a rise in constitutional power, in the sense
that constitutions are increasingly being treated as supreme sources of law, in civil law
countries and in the United States. In both types of jurisdiction, there is a move to promote,
guarantee and expand individual rights. Judges, in this regard, have acquired an enhanced
status and expanded role in the civil law courts.
 Finally, there is the existence and growing influence of European Community law. In some
cases, Community law prevails over inconsistent national law. An analogy could be drawn
between Community law and the canon law jus commune, since EU law and the European
Human Rights Convention could be seen as the foundation of a new jus commune ‘based
on common culture and common interests’.

 Contributing factors:
 The following factors contribute to the existence of a high degree of convergence of legal
systems of the world: single market, the trend towards convergence of European systems,
the growing influence of European Community law on EC Member States, the global village
phenomenon and a communality of purpose in the protection and enforcement of human
rights.

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Many legal historians argue that the civil law and common law traditions are growing
progressively closer in Western Europe and that a new ius commune (a Latin tem, which means
a law common to several communities such as countries located in Europe) is in the making.
The main basis for their assertions is that rules, concepts, substantive and adjectival law and
institutional bodies in Europe are converging. The argument that the legal systems of countries
in Europe is getting little difference and so much shared features to the extent of convergence is
sound when you look at the context of the European Union.

Legrand (1996) has argued that some writers are wrong, if one considers the deeper meaning of convergence, because rules are
ephemeral and contingent and are basically unreliable guides to how a legal system really operates or how their lawyers really think.
He argues that rules are merely surface manifestations of legal traditions and are, therefore, superficial indicators. He submits that
rules, thus, do not present the whole picture of what really lies at the heart of a particular legal tradition. Legrand`s position is that it
is not sound to say that Europe is coming together based on the similarities of rules and legal institutions alone. For him, legal
convergence demands more than mere similarities of legal rules.

Other writers disagree with the position of Legard. They raise two points to reject his position. First, as long as some degree of
convergence is taking and continues to take place the case for convergence is already proven. The only scope for debate is: to
what extent is it taking place? Secondly, convergence, may take place at different levels. Some people will achieve a deeper level
of understanding of legal rules and their evolution and socio-legal implications, while others might only understand them at the basic
level as rules. It is highly unlikely that all the countries of Europe are suddenly going to live together in geographical and culturally
identical terms. It is simply unnecessary for a legal historian to get into the mind of the foreign legal system in the sense of getting to
know its innermost thoughts and motivations. In short, European systems are converging in the context of their commonality of
rules, procedures, and institutions. The differences will remain, but the growing similarities are all too apparent.

 Approaches to Divergence and Convergence:

1. The jus commune theory:
 This theory is based on the idea that, in the era before the rise of the nation State, the entire
‘civilized world' was governed by one legal system: the Roman-Canonic jus commune.
 The two essential elements of the jus commune were: (i) the Roman law of Justinian’s era
as rediscovered and developed by the Glossators and Commentators and then received by
a large part of continental Europe as the civil law of the Holy Roman Empire (the so called
‘Roman common law’); and (ii) canon law, or the law of Roman Catholic Church-the
universal Church. The jus commune was considered the law of Christendom, ruled by two
supreme authorities: the Emperor, the temporal head; and the Pope, the spiritual head.
Hence, there was, according to this theory, a ‘common law of Europe, a common literature
and language of the law and an international community of lawyers’.
 Merryman and Clark point out the problems in this particular thesis. To begin with, the
medieval jus commune only applied throughout Christendom and not to large areas of the
world outside it. Further, it was not clear, even within Western Europe, that the jus
commune was a normal accepted part of the civilized world, as it existed then. Hence,
although it was sustained by the Church, it seems unsound to expect nations that were
never part of, nor had received anything of, the jus commune to ‘return’ to it. England, for
instance, was never part of the jus commune. A final difficulty with this theory is that it
argues on the basis of the disruption caused by the nation State, whereas the nation State
actually unified the many diverse laws of the towns, communes and principalities into one
major convergence of laws within its jurisdiction. Forcing common law and civil law
jurisdictions into accepting one law would be unacceptable.
2. Legal evolution theory:

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 This theory proceeds on the basis that legal change is a natural process, which will proceed
inevitably and irresistibly because it is controlled by forces beyond human power. Thus,
legal systems are at different stages of development and, when they converge, it is because
the less developed system is catching up with the more mature one. Simply stated, the
theory holds that legal systems move from the less developed stage to a more advanced
stage of development. Since the civil law is much older than the common law, the logical
corollary to this thesis is that the common law will gradually become more like the civil law.
However, trends toward convergence may be observed in both systems.
 There is a great deal of ‘codification’ in common law countries, particularly in the United
States; there is also the phenomenon that civil law judges are becoming more active ‘law
makers’. And the rights of the defendant in civil law criminal proceedings are also becoming
more like their common law counterparts. In the absence of any universally acceptable
criteria, it is extremely difficult to say whether the common law or civil law is more
‘developed’. Thus, any discussion of legal evolution, divorced from its socio-cultural or
ideological context is too abstract to be of any practical value.
3. Natural law theory:
 This theory argues that the common nature of human beings will eventually lead to the
creation of similar social structures, laws and legal systems. This common nature will
therefore be observed and expressed by law. Unfortunately, there is no universal consensus
about which common characteristics of human beings and human society determine, or
ought to determine, the character of the legal system. As Merryman and Clark put it, the
argument that we are all one does not take us very far if there is substantial disagreement
about the nature of law.
4. The Marxist theory:
 Marxist theory basically argues that law is mere superstructure. Accordingly, law is merely
another instrument for the furtherance of certain economic, social and political ideals.
Western bourgeois capitalist nations will all share the same fundamental core values and
beliefs and their systems will have converging tendencies, whereas socialist societies will
have divergent legal systems which reflect the distinct nature of socialist politics, society and
economics. Hence, differences between socialist and Western legal systems are
irreconcilable, whereas the legal systems of France, Germany and England are basically
reconcilable, since the differences in their laws tend to be more superficial, similarities being
masked by superstructure and terminology.

 Modes of convergence: Merryman and Clark identified in 1978 three main ‘strategies’ or
modes of convergence, active programs for the unification of law, transplantation of legal
institutions and natural convergence.
1. Active programs for the unification of law:
 Unification of law is sought to be achieved through the use of international institutions specifically
intended to promote the unification of law – agencies, such as the International Institute for the
Unification of Private Law in Rome, the Hague Conference on Private International Law and the UN
Commission on International Trade Law. Programs of international organizations with broader
objectives also seek to generalize or standardize legal rules and practices, for example, in the
European Community. Other examples of agencies that include unification of law as one of their
objectives are the International Labor Organization, the European Commission on Human Rights and
the Organization of American States.
 Unification of law is often attempted through supranational legislation and judicial decision binding on,
and applicable within, individual Member States, in the case of regulations of the European
Community, the decisions of the European Court of Justice and provisions of treaties and multilateral
conventions (for example, the International Copyright Convention).

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 Unification of law is sought through the use of international institutions specifically intended to
promote the uniformity of laws. This strategy of legal convergence has limitations in the sense that it
focuses on a few narrow areas in which there are sufficient international consensus and identity of
interest.
2. Legal transplantation:
 As Alan Watson puts it, ‘Borrowing from another system is the most common form of legal change’
and legal transplantation has a long history. There was the reception of Roman law in later Europe.
 There was the spread of English law through the colonies of the British Empire, even into parts of the
United States, which had never been under British rule.
 The French Civil Code had a big impact on other civil law systems in Europe and abroad, and, later,
the spread of American law to Europe, especially in places like Switzerland. The so called hybrid or
‘mixed jurisdictions’ still shows the effects of such transplantation in their unique blends of common
law, civil law and local customary law.
 Transplantation may occur voluntarily by, for example, the adoption or imitation of a foreign Code. Or
legal transplantation may be involuntarily, as when a country is colonized and has a foreign legal
system imposed on its indigenous culture.
 Legal transplantation across the common law-civil law boundary inevitably may lead to convergence
of the two systems. Yet it is to be admitted that transplantations may or may not be ‘successful’,
depending on a country’s particular conditions for receptivity.
 Legal transplantation may affect the speed and direction of change in civil law and common law
countries. So may revolutions, even if they are non-violent ones, such as the recent global
movement towards the liberal idea and principles of democracy.
3. Natural convergence:
 The theory is about the tendency of nations with similar political, economic and social features to
develop similar legal systems.
 The basis of this theory is that the legal systems of societies will tend to become more alike as the
societies themselves become more like each other. Thus, there are similarities in constitutions in
Western democracies. There is also a common international culture. This shared culture is brought
about factors such as increased international communication and travel, international trade,
international organizations, the internationalization of business and technology and a growing
awareness of shared global concerns (pollution, the environment, global warming and so on), student
exchange programs and scholarly exchange schemes.
 There are many practical similarities between the common law and the civil law in their legal
solutions. Yet, fundamental and deep rooted differences exist in juristic style, philosophy and
substance, in court structures and sources of law and, more importantly, in their judicial and
administrative ethos, legal divisions and categories and their professional structure and legal
education.

 Current developments:
 In 1989, Francis Fukuyama published a book. The theme of his book was that liberal democracy is the only ideology left in the
greater part of the civilized world. In Southern Europe, Latin America, Asia and Eastern Europe, free market economies and
parliamentary democracy are fast becoming the norm.
 Fukuyama emphasizes the victory of the principles of liberal democracy. Hence, as Fukuyama puts it, ‘for a very large part of
the world, there is now no ideology with pretensions to universality that is in a position to challenge liberal democracy and no
universal principle of legitimacy other than the sovereignty of the people’.
 By his reckoning, there was not a single true democracy in the world until 1776, if one defines democracy as including the
‘systematic protection of individual rights’. By the end of the 1980s, therefore, China, the former Soviet Union and the countries
of Eastern Europe had all ‘adhered to the economic logic of advanced industrialization. Even the Chinese leadership had
accepted the need for markets and decentralized economic planning and ‘the close integration into the global capitalist division
of labor’.
 Another writer, Alex, argues that there are a good number of essential factors promoting global convergence. First, he states
that the continuous importance of international events is a defining feature of the convergence. He observes that transnational
activities and affairs now have continuous importance, repeatedly affecting not just distant countries, but also the entire global
communities at times.
 Another factor, for Alex, is the convergence of basic economic and political values of the industrialized democracies, the west.
He claims that today there are greater similarities between the economic and political systems of nations than at any other
time. He adds that the influence of international institutions at present is higher than in the past.
 Finally, he advocates for the existence of a crucial value, what he calls the human race, this is a belief that all individuals living
in the different corners of the world will develop the conviction that they belong to the same human race. These people will start

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to identify themselves with this human race. Alex claims that all these factors in combination would lead to the convergence of
systems

. Distinctive Approach of legal thinking:

 One of the styles of a legal system is its predominant and characteristic mode of thought in legal matters. The Germanic and
Romanistic families are marked by a tendency to use abstract legal norms, to have a well-articulated system containing well-
defined areas of law and to think up and to think in juristic constructions. The European is given to making plans, to regulating
things in advance, to drawing up rules and systematizing them. He approaches life with fixed ideas, and operates deductively.
The Englishman improvises never making a decision until he has to. He is an empiricist. Only experience counts for him;
theorizing has little appeal; and so he is not given to abstract rules of law. Convinced, perhaps from living by the sea that life
will controvert the best-laid plans, the Englishman is content with case law as opposed to enactments.
 Anti-formalism refers to the opposition of legal systems to needless formality in the law. In private law, this shows itself in
consensualism, that is, the rule that agreement creates contractual obligations, no matter how it is expressed. Consensualism
is found at an advanced stage of every legal system. The formalism is present in all primitive system. It also exists in Anglo-
American law. In Europe, that tendency to anti-formalism is strong.
 The struggle for law is an element in legal thinking, which is found in several legal families, in deed in all Western law. The
principle is that the goal of law is peace, one must struggle to achieve; it is the duty of a person, owed both to himself and to
the idea of law itself. But this idea is not true in Far East and Latin American systems where written law is not very significant in
practice. In the West man naturally fight for his rights and seeks a clear decision, treating a compromise as a thing perhaps to
be settled for, and in the East the face-saving compromise is the ideal, and a firm decision only a necessary evil.

Ideology:

challenges in the study of legal history: The first effort of the legal historian is to find out
what happened in the past. And their next step is to ascertain why those events occurred. Often
there are insufficient data available to arrive at a provable conclusion and sometimes none at all.
Legal history should tell you why things happened and, sometimes, you may know; sometimes,
you may simply make an educated guess and speculation. Some other times, you may have no
idea about what happened. Thus the fundamental problem of legal history is lack of sufficient
and reliable evidence of past events. As you will notice in the fourth unit of this course, lack of
sufficient, accessible and reliable data is one of the main problems in the study of the Ethiopian
legal history.

 Legal Tradition:
 Legal tradition refers to a set of deeply rooted and historically conditioned
attitude of the majority of the members of a given legal system towards the
other elements of that legal system, which means the way laws are made,
modified, interpreted and the way the legal actors and structures function.
 It is the abstract element of a legal system.

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 The attitude directed towards a legal system can be hostile, neutral or
favorable. When the attitude of the governed is hostile, the legal system will
show instability; it will have to be changed. When the attitude of the governed
is supportive of the legal system, the system will show continuity.
 The attitude that constitutes a legal tradition should be directed to a legal
system and should be something deeply embedded in the system. The attitude
should also be historically conditioned in the sense that it should be there for a
relatively longer period of time and that it should have the feature of
perpetuating itself.

 In terms of frequency of change, legal traditions

may be classed into three:
 those legal systems that exist for a relatively longer period of time with some adjustments: this
is known for stability and backed probably by a majority support
 those legal systems that undergo basic and frequent changes: relates to legal tradition with
deep and revolutionary changes
 Those legal systems which experience little or no change: Belongs to the domain of the
stagnant early legal traditions.

The notion of civil law:

 In the framework of early and classical Roman law, jus civil was the law
governing the relations of Roman citizens. In the Middle Ages and up to the era
of “reception,” the term ``civil law`` referred mostly to the Justinian legislation
and the accumulated doctrine of the commentators; it was contrasted to the
canon law.
 In modern times, the term ``civil law`` refers to those legal systems, especially
in their methodology and terminology, shaped decisively by the Roman law
scholars from the Middle Ages to the nineteenth century. But within the
framework of a civil law system, the term ``civil law`` is ordinarily reserved to
designate the sum total of rules governing relations of private individuals as
such, with the exception of commercial acts and relations which are subject to
commercial law.
 The initial working assumption in the civil law world especially in the French
legal system was that the codes are: (a) clear with no ambiguity and vagueness;
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(b) complete containing answer to every fact-situation; and (c) coherent with no
inconsistency or contradiction. Thus, the function of the judge was assumed to
be merely applying the written law to the facts.
 The French entertained this idea of clear, complete and coherent code because:
(a) they believed in the goal of certainty of the law; a thinking that people
should, to the extent possible, know the nature of their rights and obligations
and be able to plan their actions with some confidence about the legal
consequence; (b) they believed in the strict separation of power in which judges
are slot-machine (give them legal rules and facts, division are automatic); (c)
the believed in legislative supremacy.
 Over time, those thinking about the roles of judges, the nature of codes, the
ideal of certainty and strict separation of power and as well as legislative
supremacy have been modified. Discovered in the codes were several
provisions that were incomplete, vague, ambiguous and inconsistent. To
remedy these deficiencies, judges have been, though not in theory, making laws
in practice. The executive has started issuing tones of law through delegation.
To fill gaps in the codes and adjust them to the changing needs of the French
society, legislatures found it imperative to pass special statutes. The jurists have
commented on the codes, cases and special statues passed by the executive and
the legislatures.
The notion of common law:

 Common law is the totality of the law of the Anglo-American legal

family. It is related only to that part of the law created by the king’s
courts in England.

 The term ``common law`` is used as opposed to statue law, which is the
enactment of the parliament in England. The term ``common law`` is also used as
opposed to the rules and practice of equity. The most appropriate connotation of the
term, however, is a set of deeply embedded attitude held originally by the British
people about the primacy of case law.

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A. Legal Transplantation
 Legal transplantation is known by other names. These are legal borrowing, legal
importation, legal reception and legal taking.
 Legal transplantation refers to the transfer of legal rules, legal principles and
legal concepts from one or more than one legal system to another legal system.
 A legal system borrowing laws can be called the recipient system while a legal
system lending laws can be called the donor legal system. The lending system
may be an existing legal system or a past legal system.
 The recipient legal system should be an existing one or a system at its initial
stage of development.
 Legal borrowing can involve a single legal rule; it can be a massive borrowing.
 Appreciating legal transplantation is important to conduct legal research, as it
enables you to trace the right material sources of the laws of a given country.

Reasons for legal transplantation:

 Since the laws are accessible in terms of language, the laws are found out to be meritorious in terms
of organizations, the laws were transplanted to other systems and found out to be fruitful and the
recipient country decided to modernize its legal system.

 As a result of migration or commercial intercourse.

 Because the important elites are attached to the legal system and education of the donor country.

 A country may be forced to accept the laws of other systems owing to war or conquest or colonization
or physiological pressure.

A historical account of legal transplantation:

 Legal history indicates that legal transplantation has been rampant.

 The Greek gave important legal theories to the Romans; the Romans borrowed some conceptions of laws from
the Greek legal system.
 The Romans converted the idealism of the Greek into practical legal rules. The Romans gave principles of
private law to European countries such as France and Germany.

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 France added to the laws it had received from the Romans some theories and techniques. France then codified
its laws in early 19th century. France propagated its laws first to neighboring European countries. Later, France
transplanted its codes to Asia and Africa through the instrumentality of colonialism. Some countries in Latin
America received laws from France voluntarily.
 England also transported its laws to all over the world via colonialism. Eastern European countries received laws
from the civil law countries. After the end of World War Second, however, East European countries were forced
to adopt socialist system of laws. Again after 1980`s these countries went back to the civil law tradition owing to
external pressures. The socialist legal system was developed as an idea in 19 th century and in early 20th century;
it was then translated into practice in Russia. Russia, later the USSR, became the mastermind behind the spread
of socialist laws to Asia and Africa in some case through force and sometimes through pressure.
 The Islamic legal system, as an idea, originated in the Middle East in the 7 th AD., and then it was taken to the
coastal areas of Africa, Middle East and Asia. Now a kind of Islamic law belt is created. The spread of the Islamic
legal system has been attributed to a combination of the following factors: migration and commerce.
 According to Dicey, there are three classes of recipients of common law:
a) Seeded nations-those where elements of the colonial legal system were introduced into a colony which had a
relatively advanced society and developed legal system, but where the seeding power which gained control more
by negotiation and its apparent capacity to conquer than actually using force. As an example, in Grand Mogul of
India, local leaders authorized English occupation.
b) Settled nations-those in which territorial expansion occurred in an area not possessing a strong and developed
society and in which the colonial acquisition went to the first settling power. Examples in this domain are USA,
Australia and New Zealand.
c) Conquered territories-nations in which elements of force was used to wrest power from another authority,
which might have been either a strong indigenous authority, or a previous colonizer as is in the case in South
Africa.

Views on legal transplantation:

 There are three views about legal transplantation.

The first approach is referred to as the custom theory. F. von Savigny, a German thinker of 19th century, elaborated

this approach. The approach states that law and society have unique relationships. Law and society have inherent

connections. There is a unique relationship between law and society means that laws are found in the common

consciousness of the people. This common consciousness is manifested via the behaviors of individual members of

that community. Laws are related to the identity of a society for which they are created. Further, this theory assumes

that every community is legally self-sufficient; whenever a society faces a legal problem, it can create legal rules of its

own and from its own internal sources alone.

An opposing theory, developed by Alan Watson holds that there is no unique connection between law and society. The

theory also holds that no community has ever been legally self-sufficient in the history of mankind. The theory is

named as legal engineering. This theory views laws as intangible instruments to achieve certain goals. As laws are

tools, they can be taken to any society and may be used with success. Justifications are given for this position. The first

reason is that the fact that legal transplantation has been very common in the history of legal systems, which shows

13
that people have found it rational and useful. In the second place, if there are laws used by X community and if Y

community needs those laws, why should the latter be asked to reinvent those legal concepts and legal rules? It is

rational for Y community to receive the laws of X community, which are tested in practice. The custom theory

wrongly assumes that countries always take the laws of other nations on the basis of their own free will.

The third theory attempts to strike a middle ground. In some areas of law, for example, in the area of commercial law,


public law and technology law, there are gaps in laws or laws do not exist in developing countries. In such cases,

developing countries do not have a choice; they have to borrow laws. In other areas of laws such as family law,

inheritance laws and land laws, developing countries have longstanding laws. In the latter cases, it is difficult to

transplant laws and even if transplantation takes place, the laws so transplanted will not be welcomed. This hybrid

approach is articulated by Kahn-Freund. This position is also called the degree of transferability approach. This

moderate approach to legal transplantation states that the contexts of the recipient country should be studied well

before the borrowing of laws is made.

More on legal transplantation:

 The debate around the theory of legal transplants has almost unique beginning. In 1974 Alan Watson and Otto Kahn-
Freund presented competing theories on the viability of legal transplants.
 Watson's theory begins with the proposition that there is no inherent relationship between law and the society in which
it operates. He believes that law is largely autonomous, with a life of its own. Watson states that law develops by
transplanting, not because some such rule was the inevitable consequence of the social structure and would have
emerged even without a model to copy, but because the foreign rule was known to those with control over lawmaking,
and they observed the apparent merits that could be derived from it.
 Under Watson's theory, a legal rule is transplanted simply because it is a good idea. While Watson does not explicitly
present a method to predict the viability of a proposed legal transplant, his writings provide guidance for such a
method. He has further identified several factors that he believes must be considered to determine if the conditions are
ripe for legal change by transplantation.
 Kahn-Freund's disagreements with Watson begin with Watson's proposition that there is no inherent relationship
between a state's law and its society. He claims that laws must not be separated from their purpose or from the
circumstances in which they are made. Kahn-Freund argues "we cannot take for granted that rules or institutions are
transplantable`` and believes that "there are degrees of transferability``. Ewald summarizes Kahn-Freund's theory:
"legal institutions may be more-or-less embedded in a nation's life, and therefore more-or-less readily transplantable
from one legal system to another; but nevertheless at one end of the spectrum law is so deeply embedded that
transplantation is in effect impossible.
 Kahn-Freund identified a two-step process to determine the viability of a proposed transplant. The first step is to
determine the relationship between the legal rule to be transplanted and the socio-political structure of the
donor state. The second step involves comparing the socio-political environment of the donor and receiving
state.
 Massive successful borrowing is common place in law. Borrowing is usually the major factor in legal change. Legal
borrowing is of enormous importance in legal development. The borrowed rule would not operate in exactly the way it
did in its other home. Legal transplantations are inevitable. Since the time of late Roman Empire, legal transplantations
have been a major factor in legal change in the western world. England is no exception. Nor is the United States. Nor
is Québec, even with its differences from the other provinces. The real issue is whether there should be a deliberate
concerted effort, spear-headed perhaps by academics, to create a common law.
 Beginning from early 1990`s, Eastern Europe began the unprecedented effort of lawmaking on a grand scale. Almost
overnight and at the request of their people and/or international organizations, former communist countries had to
disassemble their political, economic, and legal institutions, which were based on centrally planned economies, to erect
market-based democracies. Large sections of their old legal systems were now obsolete. The legislatures, however,

14
were in most cases not free to from law and policy, as an "author is free to write a novel.`` The legal establishment of
the communist era held influential posts and had contacts in the East and the West. They were ex officio called to lead
reform efforts. In addition to them, foreign technical assistance arrived with ideas for "legal surgery or reception of
foreign law``. A great number of foreign concepts (e.g., negotiable instruments or credit security devices) were
introduced as if they were legal transplants to replace malfunctioning organs.
 Comparative law was employed to decide either compatibility of foreign legal concepts or the merits of foreign legal
systems and to provide an anthology of foreign legal ideas. Modern comparative legal methodology deals with legal
transplants and reception of foreign law.

Interface: Imported laws and preexisting laws

Two main themes are discernable in the legal transplantation discourse. Convergence theorists contend that nation-states are
enmeshed in an inevitable and accelerating shift towards internationalisation and globalisation. Ever increasing telecommunications,
urbanisation, international investment and trade are credited with collapsing regional differences, which in the past inhibited legal
transplantation. Ignoring the path-dependent trajectory of legal development, multilateral funding agencies like the International
Monetary Fund, World Bank and Asian Development Bank routinely make loan agreements to developing Asian states conditional
on enacting Western-style commercial law. Similarly, multilateral organisations like the World Trade Organisation (WTO) and APEC
pursue legal harmonisation strategies designed to transmogrify domestic capitalist laws (especially those of the United States) into
global legal templates. Underlying this vision of global equivalence and convergence is the unsubstantiated assumption that legal
transplants no longer convey national culture from one society to another, but rather, function as a series of technical adjustments
between legal systems.

The other main theme originates from Montesquieu’s skepticism that laws can not traverse cultural boundaries. He proposed that
laws express the spirit of nations and are consequently deeply embedded in, and inseparable from their geographic, customary and
political context. The transfer of laws across cultural boundaries constitutes a ‘grand hazard’, because laws can not change
manners and customs, which must evolve.

Taken together these explanations fail to account for East Asia’s uneven legal reform. There is a need for theoretical alternatives to
the unproductive convergence and cultural-essentialist dichotomy. At issue is whether laws arising out of, and serving the
sociopolitical needs of one society, can induce similar effects in other societies…Previous research suggests that Vietnam's
contemporary legal system is constructed from legal transplants historically derived from—China, France, the former Soviet Block,
and more recently East Asia and Western countries. Together these sources form a complex legal architecture based on different
systems of knowledge, the new overlaying and interweaving the old. The ‘official’ legal system has always reflected the laws of
conquerors, colonists and patron-states, which were superimposed over the pre-existing habits and practices forming the ‘unofficial’
legal system. In order to unravel the myriad influences on legal development, a theoretical means of analyzing interaction between
legal transplants and host country legal systems is required.

Proponents of legal transplantation contend that laws reflect the legal traditions of governing elites, rather than extrinsic social,
political and economic factors. Globalizing forces are also credited with accelerating legal reification, by creating one international
legal dialogue comprised of a collection of regional sub-variations. In its extreme form, some multilateral donors postulate a future
where a single transnational jurisdiction emerges as national legal systems wither away. Others contend that since laws are cultural
artifacts that mirror the ‘felt needs’ of society, they are unlikely to induce the same behavior in different societies. Put differently,
there is much ‘law’ beyond legal rules and the transplantation of statutory and doctrinal rules does not necessarily transfer the
‘whole law’. Rules, it is argued, lie on the surface of legal systems and do not accurately represent deeper underlying sociopolitical
dynamics.

Legal history shows that certain legal transplants take root in foreign legal terrain, though successes are largely limited to borrowing
between Western countries. Explaining this phenomenon, Otto Kahn-Freund offered the valuable insight that there are ‘degrees of
transferability’. Even so, ‘laws designed to allocate power, rule-making, decision making, above all, policymaking power’ remain
deeply embedded in social institutions and are unlikely to easily transplant. His complex theories are scattered in fragments
throughout his writings, however, it is possible to discern three main hypotheses. One, all laws have to some extent de-coupled from
their sociopolitical moorings, making legal transplants across sociopolitical boundaries a theoretical possibility. Two, since laws de-
couple to varying degrees, some are more likely to survive the journey than others. Three, sociopolitical institutional factors
determine the degree of coupling between law and society, they are: the ideological role of law, the distribution of state power, and
pressure from non-state interest groups.

15
Three working postulates have been synthesized from Kahn-Freund and later legal-sociological writings to identify the likely sites of
interaction between imported laws and host country sociopolitical structures: 1 Legal Ideology: Transplanted laws should accord
with the dominant ideology in host countries. The success of legal transplantation is strongly influenced by the congruence between
the ideological content of transplanted laws and host country political-legal ideologies. Here ideology is used in the Gramscian
sense to identify categories of meaning to understand social reality. Ideology has the ‘capacity to persuade people that the world
described in its images and categories is the only attainable world in which a sane person would want to live.’

2. Structural Variance in Power Distribution: Transplanted laws should comport with host country legal frameworks and political legal
cultures. The effectiveness of transplanted law is also profoundly influenced by its compatibility with host country power structures
and legal cultures (epistemologies). Political-legal culture is the historically conditioned, deeply rooted attitudes that influence the
way bureaucrats and judges use law to find reality. It encompasses epistemological assumptions regarding rationality, efficiency and
merit, which in turn shape understandings of borrowed law. Pierre Legrand suggests ‘[t]he aim must be to try to define why different
legal cultures invest similar legal rules with different meanings’. 3. Special Interest Groups: Transplanted laws should attract support
from host country special interest groups and comport with local production regimes. Certain laws require specific configurations of
state and non-state interest groups, such as market support organizations (for example banks, lawyers, accountants, unions,
political parties, markets and family-based commercial structures) to function effectively.

Interface: Imported laws and preexisting laws in Ethiopia

 The terms laws and legal order have been defined in so many ways and identified with so
many things that at times one is led to believe that the two mean practically anything.
 Professor William B. Harvey consider law as a technique of social ordering deriving its
essential characteristic from its ultimate reliance on the reserved monopoly of systematically
threatened or applied force in politically organized society.
 As Friedman puts it “the controversy between those who believe that law should essentially
follow, not lead and that it should do so slowly, in response to clearly formulated social
sentiment and those who believe that the law should be a determined agent in the creation
of new norms is one of recurrent themes of the history of legal thought.
 Two prominent schools of thought that reject both the desirability and feasibility of law in
inducing changes are the Historical School and the Marxian school of thought.
 To Savigny, the founder of the historical school, law was something that is connected with
the being and character of the people and he maintained that it grows with the growth of the
people and strengthens with the strength of the people and finally dies away as the nation
losses its nationality. Similarly classical Marxist theory, regarding law as a superstructure on
technology and economy considered it to be inconceivable for law to bring about changes-
in the basis technology and economy of society.

We find the views of these two schools of thought on this point to be generally out of tune with
modern reality and totally inapplicable in the African arena. Although social change may be
revolutionary, it normally comes about in a more or less orderly manner, out of the conscious
and unconscious attempts of people to solve social problems through collective action. It is
purposive and rational and involves definition of a state of affairs as a "problem" and an attempt
to solve that problem by rational means. In Africa as elsewhere-rapid rational social change
implies the utilization of society's most potential tool-state power. It requires that law be
employed as a means of social engineering. The fact that most African countries gained their
independence only very recently and sectarian or tribal sentiments are still rampant is an
important factor that enhances the role of law as a means of social engineering. Certainly,
education may be the best solution for this, but taking the amount of time that it takes and
considering the fact that these nations are trying to accomplish in the life span of one or two
generations what took centuries, the appeal of this remedy becomes very low. Under these

16
circumstances, we are of the opinion that it is essential to use the law to give legitimacy to the
state action and to erode the power of groups adverse to it.

Not only is there a great need for legal programming in the African countries, but as these
nations are undergoing more rapid change than their industrialized counterparts, capitalist or
socialist, this rapid rate of growth accentuates the resulting pressure on the legal system. In this
sense the scope and need for legal engineering are far greater in the countries of the third world
than in Europe or North America, where changes can be brought gradually, by incremental
process or by well established legislative mechanisms. The fact that many African counties
have adopted laws based on foreign models as a means of revamping or overhauling their
socio-economic systems even after attaining independence is by itself a concrete evidence of
the wide acceptance and legitimacy that the law as a means of social engineering has received
in these countries, negating the views of both the Historical and Marxist school of thought.

Definitely, the aggressive codification in Ethiopia is based on this basic premise. As the drafter
of the Ethiopian Civil Code put it, like the Soviet Union and co-communist counties, although
with another ideal, Ethiopia and a number of African counties are presently in a revolutionary
period. While safeguarding certain values to which she remains profoundly attached, Ethiopia
wishes to modify her structure completely, even to the way of life of its people. Consequently,
Ethiopians do not expect the new code to be work of consolidation, the methodical and clear
statement of actual customary rules. They wish it to be a program envisaging a total
transformation of society and they demand that for the most part, it set out new rules
appropriate for the society they wish to create.

Although as we stated earlier, due to lack of sufficient data it becomes extremely difficult to
reasonably measure the degree of effectiveness of law in the different spheres of life, one can
still make some generalizations as regards this issue based on the experience in other countries
and the meager data that is available about the Ethiopian legal system. As the experience of
Turkey, which drew its codes from those of European countries in the 1920's, clearly shows, it
seems that the aspects of social action of a mainly instrumental character such as commercial
activities were significantly influenced by new law, while those aspects of social action involving
expensive activities and basic beliefs and institutions such as family life and marriage habits
were very little changed in spite of explicit laws trying to shape them.

Although it is too early to report, the experience of Ethiopia may not be quite different from that
of Turkey. An empirical research carried out on the impact of the various laws on the Ethiopian
society revealed that in the area of commercial law some major conflicts in the mercato between
law and practice. However, according to the researchers these conflicts appear due to lack of
education or knowledge on the part of the merchants with respect to accounting practice and
registration requirements and reluctance on the part of authorities to strictly enforce many harsh
legal provisions. Little if any, evidence of resistance to these laws on the basis that they are
"foreign" to customary way of doing things was detected.

17
While in the area of family law, it was found that despite the fact that the new law's attempt to
break the customary practice of adoption by imposing a requirement of court approval, people
are still continuing to adopt according to customary procedures without seeking court approval.
Although no empirical research was made and we cannot positively say that the law is not being
followed, it is very doubtful whether the Civil Code's requirement that a man be eighteen and a
girl be fifteen years old in order to marry is being followed. In addition one can cite the
provisions dealing with names which up to now have been more or less a dead letter.

However, even though law as an instrument in achieving the desired results may be slow or
weak in matters that affect basic drives and values, the mere fact of affirmation through acts of
law and government as it expresses the public worth of one set of norms, of one sub-culture vis-
à-vis those of others and demonstrates which cultures have legitimacy and public domination
and which do not is significant in itself. Thus the law aside from its effectiveness as an
instrument can still have this symbolic effect, as an act, decision or gesture important in itself.

Up to now we have been concerned with norm changes initiated by the law to be followed by
behavioral changes. But unless we define social change tautologically as identical with norm
changes, which seem unjustifiable, we must accept three possible types of change__ norm
change followed be behavioral change, behavioral change followed by norm change or law as
response to change.

In a modern society, the decline of old the rise of new industries, changes in the strength and
balance of classes, new ideas on the value of the individual, on wrongdoing and on family and
sex relationship, are continuously disintegrating the old pattern of society, outmoding its
machinery here and there, rendering some of its laws and sanctions harsh and inoperative. The
question that one must address himself is thus, when changed ideals and objectives have
rendered unpalatable the certainties of a precious generation must social repose be maintained
as though it were the sleep of death? The answer is certainly no, and it is imperative that the
law in order to facilitate the changes must be made to tune with the times. Unless it can
effectively perform this function the law would be as Roscoe Pound remarked in very truth a
government of the living by the dead. The moral sense of a community changes as the balance
of various interests change. An example of such a process can be found in what is presently
happening in many of the western countries. Although most of these countries do have
prohibiting abortion, except for medical reasons, and make homosexualism a crime even when
committed by adults in private, the constant lobbying to legalize to these lead one to believe that
the above laws are lagging behind the moral sense of the societies that they purport to serve.
However, such phenomena are neither particular nor limited to these societies. Even in
developing societies such as Ethiopian, one can note this lag between a professed ideal and
reality. For example if one examines the Ethiopian Civil Code which is basically designed for
the future Ethiopian society and tries to introduce new norms, one can note that some of its
provisions are already out of turn with the times. One of the few mandates in the code
regarding marital dispute resolution is that the parties should submit the disputes to arbitrators

18
selected by them, although this system of having relatives, neighbors and friends attempt to
resolve a couple's dispute makes sense in the abstract, litigants with divorce petitions are
coming to courts initially in increasing members in the cities.

Family arbitration is a codified customary practice with its origins in rural Ethiopia before the rise
of cities. In that milieu destinies are closely intertwined. Family friends and community elders
are quick to agree and often to volunteer to arbitrate material disputes. But the city filled with
migrants, where independence is fostered, it is relatively difficult to get acquaintances to devote
the long hours, seldom compensated that are required by family arbitrators. For this reasons
then many couples approach a court to obtain an "order" that arbitrators, whom the parties
select shall act in a dispute. It apparently puts the fear of authority into some otherwise
reluctant candidates. The reason that the institution of family arbitration does not reduce the
court congestion and the fact that the divorces in present Ethiopia demand a degree of
expertise not commonly possessed by most family arbitrators are some of the reasons that were
given by Aklilu Wolde Amanual to justify his recommendation to abolish the institution. Constant
legislative, judicial and administrative innovation are thus necessary to keep the law abreast of
life and this process of innovation requires sociological investigation, for a mere guess of
politicians combined with the skill of legal draftsman is not an adequate basis of law reform, nor
is a more armchair analytical legal study of existing alternative rules. But since in most African
countries legislators, courts and administrative tribunals do not have the time and personnel to
hunt for the relevant data, it may be needed to create new institutions entrusted with the sole
duty of law revision.

In this paper we have attempted to examine, by way of examples selected from Ethiopia, how
social attitudes and institutions can hamper the process of development and the role that the
law plays in making these attitudes and institutions with the need of development. The dual
roles of law as an agent of change and as a means of facilitating change (Response) and it
possibilities and limitations were considered. In our opinion law can be an agent of social
change although one should not try to use it where it is inappropriate; i.e. when other more
effective means can be restored to without much trouble. Although we may have good
intentions as to what ought to do, we should always remember that this special social technique
if misused might lead to its disrespect. To know what it can do an empirical study has to be
made.

 Legal penetration versus legal extension:

Legal penetration: Those responsible for the importation of laws aspire that the transplanted
laws would affect human conducts possibly hundred percent. The assumption is that the actors
at the time especially of massive importation of laws desire that communities would adjust their
behaviors to the imported laws. The actors who sponsored wholesome importation of laws plan
that the imported laws would be implemented in all parts of the territory of the recipient country.
Legal extension: refers to the extent to which people or the state actors are actually following
the imported laws. If legal penetration is the aspiration, legal extension is the reality. The
question is whether people have actually adjusted their behaviors to the prescriptions of the

19
imported laws or whether people are still settling their social and economic conflicts pursuant to
customary or religious laws.
 In the context of developing countries that transplanted laws from the west such as Ethiopia,
there is a gap between legal extension and legal penetration.
Reasons for the gap:
1. The imported laws have not yet been sufficiently communicated to the people.
2. The laws are published in the English language and Amharic in a country where millions of
people do not understand either of these languages. The other possible reason is that there
is a huge percentage of illiterate population. The imported laws assume a literate society.
3. The state lacks the necessary resources to implement some of the provisions of the
imported laws.
4. The laws were defectively transplanted, which means the country’s context was not properly
studied and the customary and religious laws were not given the place they deserved. As a
result, the imported laws lacked the necessary legitimacy from the people.
5. The pre-existing laws in Ethiopia are so deeply rooted in the fabric of the society that they
could not easily and quickly be replaced. People are deeply attached to the customary laws.
People have inherited dispute settlement mechanisms that were used by their ancestors.
Simply stated the force of tradition is the reason behind the tacit resistance put up against
imported laws.
6. The transplanted laws could not succeed since the assumption of the customary laws is
different from the assumption of the western laws. The customary laws focus on the group;
paramount importance is attached to the survival of the collectivity. On the other hand, it is
stated that western laws are designed for and around the interests of an individual.

Constitutional Development of Ethiopia

 Pre-1931 Period:
 1931, Ethiopia did not have a written constitution. Various emperors ruled the country
without regard to such constitutional principles as separation of power and the rule of
law. The emperors enjoyed absolute power; they did not know of any legal limitations.
Emperors adopted unitary form of state. The absolute emperors aspired for political
centralization. Force, religion and the legend of the Solomonic Dynasty served as tools of
political legitimacy. Only those who could establish a link with the tradition of the
Solomonic Dynasty were taken as the right persons to rule the country. Those who could
not establish such connection faced legitimacy crisis. In the latter category, you can cite
the Zagwe Dynasty and Emperor Teowodrows II as examples. Those kings or emperors
who could show that they belonged to and were ready to defend the Orthodox religion
could easily establish themselves as rulers proper. Those who failed to do so would be
ousted.
 The 1931 Constitution:
 This period starts with the promulgation of the first written constitution in
1931. This constitution had a couple of functions. Domestically, it was
designed to serve as an instrument of legitimatization of the powers of
Ethiopian monarchs. Internationally, the constitution was meant to play the
20
role of modernization. The constitution established the legal framework for
absolutism. The constitution "legalized the emperor's absolute powers in
appointments and dismissals, the rendering of justice, the declaration and
termination of wars, and the granting of land and honors." Moreover, the
constitution snatched the power of the traditional nobility to sign treaties
with foreign states in their own rights. The constitution looked more like an
agreement between the monarchy and the nobility, inclining the balance in
favor of the monarchy. The constitution was an attempt to grant Ethiopia a
modernized image to the outside world. The constitution at the same time
served as an instrument of compromise between tradition and modernity.
 The Constitution was an instrument of centralization under the Emperor.
The Constitution reflected the traditional principle of absolute imperial
power without the practical limitations, which modified it. The Emperor
received the entire executive power over both central and provincial
government. The nobility and provincial governors were granted no
independent authority. The newly instituted Parliament provided no check to
the Emperor.

 The Constitution was an instrument of modernization. The Constitution followed the

tendencies of the period by adopting a cautious and gradualist approach. A Parliament
was founded. But, the Parliament was given powers only of discussion. The Emperor
appointed the members of one chamber. The nobilities appointed the members of the
other chamber.
 In its content, the 1931 constitution was "a royal charter guaranteeing rights and
privileges to the nobility." The constitution created a semblance of a bicameral parliament
whose Upper House is strong, composed of important members of the nobility, and whose
lower House had an advisory role. There was no popular election of any of the members
of the Houses. The Upper House members, being important members of the nobility, were
to be handpicked by the monarch, while the members of the Lower House were nobles

21
elected by the nobility in the Upper House. The Houses served as a communication bridge
between the government and the people. The 1931 Constitution established a ministerial
executive and a judiciary of regular and administrative tribunals with the Emperor's
Court (Zufan Chilot) as the last court of appeal.

CHAPTER TWO
Ancient Legal Systems

A. Three early legal systems

1. The Babylonian legal system:

The three stages:

 The Babylonian legal system is also called the Mesopotamian legal system. This legal
system flourished Before Christ (in the BC). The system was located along the valley of the
great rivers, namely, Euphrates and Tigris. Legal historians consider this legal system as the
first great legal system in human history.

 The Mesopotamian legal system passed through three stages.

 In the first phase, there were different kingdoms. These kingdoms were fighting one
another. There was great instability in the area. As a result, a stable political and legal
system could not be realized. The legal system was characterized by diversity, brevity and
fragmentation.

22
Hammurabi defeated his contenders in the area in successive
battles, which enabled him to The second stage marked the
coming into power of a powerful emperor- Hammurabi.
Emperor monopolize political power. He imposed his rule on his
power contenders. Emperor Hammurabi felt that he had to rule
on the basis of a code of laws. He wrote, according to legal
historians, the first real law code in the history of mankind. His
code was named the Code of Hammurabi. The Code came into
force in the year 1750 BC. The Code was carved on a huge rock
column; it was not written nor published on papers. The Code
had several features. The first and basic principle behind the
Code of Hammurabi was an eye-for-an eye principle of
punishment. An eye for an eye principle means a literal
punishment. Mitigating or softening punishment was not known
in the Code of Hammurabi. The Code imposed harsh or
disproportionate penalties for offenses. The basic reason for an
eye-for-eye principle was that when a person committed an
offense, the Mesopotamians thought that that act disturbed the
natural balance and the only proper method of rectifying the
wrong, according to them, was by imposing a literal and
corresponding punishment. The second feature of the Code was that it was

23
not systematically written. The Code did not make any distinctions between public
law and private law, and procedural law and substantive law; these distinctions
were not known then. Thirdly, the Code was the expression of the Mesopotamians
that the rule of law, in its crude form, was important, as the law was written and
disclosed in advance. Fourth, the Code lasted for a longer period of time; it was
one of the codes in the history of legal systems that showed an amazing degree of
stability.

The third stage of the Mesopotamian legal system was the phase of decline; much has not been written
about this fading phase of the kingdom of Mesopotamia.
The basis of legitimacy-Hammurabi`s Code

The Code of Hammurabi (Epilogue),http://www.wsu.edu/~dee/meso/code.htm (accessed October

31 2006)

When Anu the Sublime, King of the Anunaki, and Bel, the lord of Heaven and earth, who decreed the fate
of the land, assigned to Marduk, the over-ruling son of Ea, God of righteousness, dominion over earthly
man, and made him great among the Igigi, they called Babylon by his illustrious name, made it great on
earth, and founded an everlasting kingdom in it, whose foundations are laid so solidly as those of heaven
and earth; then Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to
bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the
strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and
enlighten the land, to further the well-being of mankind.

24
Hammurabi, the prince, called of Bel am I, making riches and increase, enriching Nippur and Dur-ilu
beyond compare, sublime patron of E-kur; who reestablished Eridu and purified the worship of E-apsu;
who conquered the four quarters of the world, made great the name of Babylon, rejoiced the heart of
Marduk, his lord who daily pays his devotions in Saggil; the royal scion whom Sin made; who enriched
Ur; the humble, the reverent, who brings wealth to Gish-shir-gal; the white king, heard of Shamash, the
mighty, who again laid the foundations of Sippara; who clothed the gravestones of Malkat with green;
who made E-babbar great, which is like the heavens, the warrior who guarded Larsa and renewed E-
babbar, with Shamash as his helper; the lord who granted new life to Uruk, who brought plenteous water
to its inhabitants, raised the head of E-anna, and perfected the beauty of Anu and Nana; shield of the
land, who reunited the scattered inhabitants of Isin; who richly endowed E-gal-mach; the protecting king
of the city, brother of the god Zamama; who firmly founded the farms of Kish, crowned E-me-te-ursag
with glory, redoubled the great holy treasures of Nana, managed the temple of Harsag-kalama; the grave
of the enemy, whose help brought about the victory; who increased the power of Cuthah; made all
glorious in E-shidlam, the black steer, who gored the enemy; beloved of the god Nebo, who rejoiced the
inhabitants of Borsippa, the Sublime; who is indefatigable for E-zida; the divine king of the city; the
White, Wise; who broadened the fields of Dilbat, who heaped up the harvests for Urash; the Mighty, the
lord to whom come scepter and crown, with which he clothes himself; the Elect of Ma-ma; who fixed the
temple bounds of Kesh, who made rich the holy feasts of Nin-tu; the provident, solicitous, who provided
food and drink for Lagash and Girsu, who provided large sacrificial offerings for the temple of Ningirsu;
who captured the enemy, the Elect of the oracle who fulfilled the prediction of Hallab, who rejoiced the
heart of Anunit; the pure prince, whose prayer is accepted by Adad; who satisfied the heart of Adad, the
warrior, in Karkar, who restored the vessels for worship in E-ud-gal-gal; the king who granted life to the
city of Adab; the guide of E-mach; the princely king of the city, the irresistible warrior, who granted life
to the inhabitants of Mashkanshabri, and brought abundance to the temple of Shidlam; the White, Potent,
who penetrated the secret cave of the bandits, saved the inhabitants of Malka from misfortune, and fixed
their home fast in wealth; who established pure sacrificial gifts for Ea and Dam-gal-nun-na, who made
his kingdom everlastingly great; the princely king of the city, who subjected the districts on the Ud-kib-
nun-na Canal to the sway of Dagon, his Creator; who spared the inhabitants of Mera and Tutul; the
sublime prince, who makes the face of Ninni shine; who presents holy meals to the divinity of Nin-a-zu,
who cared for its inhabitants in their need, provided a portion for them in Babylon in peace; the shepherd
of the oppressed and of the slaves; whose deeds find favor before Anunit, who provided for Anunit in the
temple of Dumash in the suburb of Agade; who recognizes the right, who rules by law; who gave back to
the city of Ashur its protecting god; who let the name of Ishtar of Nineveh remain in E-mish-mish; the
Sublime, who humbles himself before the great gods; successor of Sumula-il; the mighty son of Sin-
muballit; the royal scion of Eternity; the mighty monarch, the sun of Babylon, whose rays shed light over
the land of Sumer and Akkad; the king, obeyed by the four quarters of the world; Beloved of Ninni, am I.
When Marduk sent me to rule over men, to give the protection of right to the land, I did right and
righteousness in . . . , and brought about the well-being of the oppressed.

2. The Greek legal system:

 The Greek legal system came into existence a thousand year after the Code of Hammurabi.
The Greek civilization reached its highest stage in the 5 th BC. The system started declining
in the 4th BC and finally to collapse in the 2nd BC owing largely to the conquest of Greece by

25
the Romans. The Greek provided the next generations legal systems with the principles of
public law.

 The Greek did not contribute much to the development of a sound private law; the Greek did
have private law but their private law was not as sound as the Roman private law. A
combination of three factors explains this failure.

 First, the Greek did not build an empire, unlike the Romans and the Mesopotamians. The
Greek had had several geographically and politically fragmented polities called city-states.
As a result, the city-states lacked political interactions; when there were connections it was
that of enmity instead of that of friendship and cooperation. Historians state that lack of
viable political connection hampered the development of an elaborate private law.

 The Greek philosophers always thought that they were destined to address questions that
mattered-philosophical questions. The Greek directed their energy to abstract thinking;
they were not technocrats; rather, they were idealists. So the psychological and intellectual
make-up of the Greek prevented them from working on details matters such as private
rules.

 The third reason was attributed to technical and institutional factors. The Greek city-states
lacked legal structures such as courts, prosecution offices, police and prisons. They did
not have detailed private rules. Ordinary people settled economic and social disputes on
the basis of ethics and equity. The Greek, it seems, operated on the assumption that law
should not be monopolized by the few and that people had to be allowed to participate in
the making and implementation of the law. The system of recording judgments was
missing. They did not know of precedents.

3. The Roman legal system: Like the Mesopotamian legal system, the Roman legal
system went through three phases.

a. The first phase lasted from 8th BC. to 2nd BC. In the course of these centuries, Rome was
a little city. It was a city-state; state built in the city of Rome. The laws of the city of Rome
were at their lowest stage in terms of organization and narrow in their coverage. Rome
formulated its laws in the form of one of the ancient codes named the XII Tables in the year

26
450 BC. The XII Tables was developed in a response to popular demand; the lower class
rebelled demanding that the law had to be known in advance.
Aspects of the XII Tables:
 The XII Tables promoted an eye-for-eye principle.
 The XII Tables reflected the belief on the part of the Romans that law should be written in
advance, communicated to the governed and the law had to be left to the judges alone to
apply and interpret.
 The other feature of the XII Tables was that it was rudimentary, in terms of arrangement, as
the Code of Hammurabi. The XII Tables advocated for the supreme authority of the father
over his wife and children.
 The XII Tables reflected the shift in the Roman legal system from god-given laws to human-
created laws. Prior to the creation of the XII Tables, the Romans believed that laws were
made and modified by gods. These god-given laws were to be applied and to be interpreted
by those persons closer to gods-priests not by the laity. With the development of this code,
however, there had been a complete shift in the legal system-the secularization of the legal
system was witnessed.

2.1.3.2 The significance of the XII Tables

Richard A. Pacia, Esq., Raymond A. Pacia, Roman Contributions to American Civil

Jurisprudence 49Rhode Island Bar Journal5 ( 2001)

The Twelve Tables-In 451-450 B.C., a special commission drew up the earliest Roman code of
seventy-six civil laws called the Twelve Tables, which were set up in the Roman Forum on
twelve tables of bronze. Rome was at this time the capital of the western world; Italy, Spain,
France, England, Austria, the countries on the Mediterranean including the Holy Land and Egypt
as well as Germany to the Rhine River were all under its control. The Twelve Tables were
eventually implemented throughout all seventeen administrative provinces of the Roman
Empire.

The Twelve Tables established a procedural framework for the prompt and efficient adjudication
of civil disputes. An array of procedures were enacted specifically to govern the conduct of civil
litigation. Significantly, the procedural construct which was established by the Twelve Tables
preserved in the individual - and not the state - the primary responsibility for pursuing and
pressing civil claims and rights. The Roman civil adjudicatory process thus was not a totalitarian
one, in which the state assumed the role of a protector but rather one founded on individual
rights, in which the state provided only as much procedure as was needed to support the

27
enforcement of those rights. Hence, the Roman legal system incorporated a legal culture much
as our own - governed by laws and prescribed rights while, at the same time, "afford(ing) the
private individual himself more or less freedom of action."

The impact of the Twelve Tables cannot be understated. Before their enactment, private
redress, under which an injured party was free to indulge in revenge, was widespread and led to
constant disturbances, violence and vendetta in the community. The Twelve Tables provided
the procedural framework through which peace between man and woman was peacefully
accomplished. Thus, self-redress was replaced by judicial redress, elevating the role of the state
as the peaceful arbiter of disputes among citizens to a degree far surpassing that of any prior
civilization. Damages and injuries to persons and property were actionable under the Twelve
Tables. Classes of basic wrongs, or torts, were established, e.g., damage to another's property,
bodily injury to a person, etc. Further sub-classifications, e.g., injury to a four-legged animal,
cutting down a tree, setting fire to crops, etc., also were established.

The prescribed remedy in most cases under the Twelve Tables was to provide a retaliation in
kind - the "lex talionus." Usually, in cases of damage to property, compensation was made by
either replacing or repairing the thing injured. In limited circumstances, a victim was given the
option of accepting monetary damages. The enactment of the Twelve Tables, in effect, signified
the first systemic development of an organized body of tort law. Still, the Twelve Tables had
shortcomings. Notably, it did not recognize a general action for damage to property. Also, the
procedural framework was primitive, incomplete, and cumbersome. The forms of action were
inflexible and were characterized by pleading formulae that had to be followed fastidiously.
Significantly, there was no mechanism for equitable relief.

The Lex Aquilla-The shortcomings of the Twelve Tables prompted the promulgation of the Lex
Aquilia, (circa 287 B.C.). The Lex Aquilia departed dramatically from the "eye for an eye"
mentality of compensation, which was the dominant modality of relief under the Twelve Tables,
and provided in most instances for awards of monetary compensation. The Lex Aquilia also
provided more specific and effective remedies. Significantly, the Lex Aquilia also provided for
punitive damages, stating that the damages for certain specified injuries "will be double against
one who denies liability." Under the Lex Aquilia, a parent's remedy for injury to his child gave
rise to recovery for loss of earning capacity and medical expenses - elements which clearly are
recognizable in American courts today.

A critical aspect of the Lex Aquilia was that it penalized only affirmative acts; a mere failure to
act was insufficient to trigger liability. Thus, for example, under the original Lex Aquilia, an action
could be brought only if death or injury resulted from direct contact between the body of the
wrongdoer and the thing. The law, in effect, thus only punished trespassers. The Lex Aquilia's
narrow applicability in this regard, however, was later cured by the creation of actions which
diminished the requirement of an affirmative act. Another central tenet of the Lex Aquilia was
that liability could be imposed only if the defendant acted with inuria, that is, with culpability,
unlawfulness or the absence of right. The concept of inuria also extended to actions involving
incorporeal losses, making it the forerunner of modern torts, such as defamation and slander.

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As in the American legal system, the Roman tort system imposed different levels of duty in
assessing culpability for negligent conduct. In certain circumstances, for example, when a
defendant was acting as a professional, a jurist could find him liable if the defendant did not
know what he was expected to know as a professional. Similarly, culpability could not be
attributed to children or to the insane, who respectively were deemed incapable or incompetent
of understanding the implications of their behavior. The Lex Aquilia also addressed intentional
acts and helped form initial thinking for our modern concepts of interference with contractual
rights and personal relations. A final requirement to the Lex Aquilia was that the offended party
must have suffered a loss or damnum (damages). This requirement, of course, exists as one of
the essential elements of a modern day negligence action.

The Classical Jurists-In the second century, Gaius, a distinguished Roman jurist born during the
reign of Hadrian, wrote many works interpreting the Twelve Tables. He is best known for his
authorship of the Institutes, a beginner's text in law. Gaius observed that "all our law relates
either to persons, to things or to actions." In the Institutes, Gaius accordingly broke law down
into three basic divisions - one covering persons, another on the subject of things (i.e. property,
obligations and succession) and a third relating to causes of action. The Institutes had a
profound impact upon the development of Roman law and provided the impetus for expanding
tort law beyond the narrow procedural parameters which had characterized - and limited - the
Twelve Tables and the Lex Aquilia.

Gaius interpreted Roman law to give a man the right to suffer an injury not only through himself
but also through his dependent children and his wife - originating, in effect, the philosophical
rationale for loss of consortium. The laws, which Gaius developed to address "actions," e.g., to
restrain and enjoin behavior, or to enforce acts by mandamus, gave rise to the birth of equity
jurisprudence. Gaius' Institutes also influenced the development of much subsequent law. In
306 A.D., Constantine declared himself Holy Roman Emperor, created a stable currency, a
Christian Church affiliated with the state and a legal system which adhered to the Lex Aquilia
and the jurisprudence of Gaius. In 438 A.D., the Emperor Theodosius II created a commission,
which further expanded and refined pre-existing Roman law in a manner consistent with the
erudition of Gaius.

Another important jurist of the third century was Ulpian. Approximately 40 percent of Justinian's
Digest was taken from Ulpian, who was murdered in 223 A.D. Ulpian was a proponent of natural
law and in his writings we find such statements as "by natural law all men are equal." To Ulpian
is attributed the maxim "Honeste Vivere, Alterum non Laedere, Suum Cuique Tribuere," i.e.,
"Live honestly. Injure no one. Give every man his due," which is the basic overriding precept
found in book one of Justinian's Institutes. The simplicity and compassion underlying this canon
is almost breathtaking, summing up in one brief phrase all that modern legislators and jurists
have endeavored to achieve through endless legislation and innumerable judicial opinions. This
simple directive reveals the essence of the Roman law as a universal law which is fixed and
immutable, shared by all and applicable to everyone at all places and at all times. Indeed, it is
clear that even the pre-amble to the American Declaration of Independence, which enshrines
the principal that "all men are created equal" and are "endowed with certain inalienable rights"

29
embodies many tenets of Roman jurists who confessed the alliance of philosophy with natural
law.

One cannot mention the contributions of Ulpian without citing, in tandem, the contributions of
Papinian. Professor Wigmore, in his instructive A Panorama of the World's Legal Systems,
reminds the reader that "for us, these two bear also the sentimental distinction, that (with
Paulus) they once dispensed justice in the Roman province of Britain, as Roman magistrates."
Papinian wrote more than 300 opinions and has been referred to as the greatest name in
Roman law. He enjoyed the unique distinction that, among the five principal jurists, when they
were divided on an opinion, his opinion should prevail. But Wigmore points out that Papinian's
"truest fame should be that he died a martyr to his professional honesty." When the ruthless
Caracalla caused the assassination of his own brother, who shared the throne with him, and
directed Papinian, then his attorney general, to write a legal opinion in justification, Papinian
replied with these immortal words: "I do not find it so easy to justify such a deed as you did to
commit it." For this rebuke, Caracalla had Papinian put to death.

b. The second stage in the life of Roman law:

 The next stage of the Roman legal system lasted from 2nd BC through 2nd AD.
 Roman in this stage formed an empire, one of the greatest empires in the history of
mankind.
 The small city-state of Rome grew militarily and economically. Rome swallowed the outlying
territories; Rome conquered numerous territories followed by their subjugation. For this big
power an elaborate and sound private law was needed. This was the period of the Classic
Roman Private Law.
 Roman private law of the period was sound both technically and philosophically. Unlike, the
Greek the Romans were men of practice.
 Rome disintegrated after the 2nd AD. Rome was divided into two: the Western and the
Eastern parts. The Western Roman part was conquered by the German tribes called
Barbarians. The Barbarians came up with their own laws. The Eastern Roman empire, also
called the Byzantine Empire, survived up to 15th century AD. Emperor Justinian was one of
the famous emperors of the Eastern Roman Empire. He sponsored a code called Corpus
Juris Civilis in the 6th century. This code is taken as the origin of the civil law tradition. Jurists
coined the term `justice` after the name of Emperor Justinian.
The Law of Justinian

 It too was an expression of his faith and duty, of his understanding of the
office to which God had called him. Justinian's most significant
achievement, one to affect the history of the world to this day, was the

30
production of the summary of Roman Law, the Corpus Juris Civilis, the
body of civil law, as it has been called since the Middle Ages.
 The state of law at Justinian's accession (and for some time before) was a sorry affair. The
edicts of the emperors--statutes with the force of law--had not been collected and organized
for generations. The chief body of Roman law-- the centuries of opinions of the lay legal
scholar "jurisconsults"--survived in jumbled assortments. The diversity of views of these
jurisconsults had led to rules of citation in which emperors commanded judges to follow the
preponderant opinion, or ranked jurisconsults in order of authority and commanded judges
to follow the view of the highest authority on the question. Unfortunately, the very richness of
the Roman legal tradition made for expensive and unreliable litigation, a situation intolerable
to the chief minister of God's justice on earth.
 Justinian had harbored plans for comprehensive legal reform during his uncle's reign, and
hit the ground running upon his own accession. Committing the work to his chief legal
expert--the brilliant, but pagan and corrupt, Tribonian, owner of the finest law library in the
world--Justinian first directed the collection of imperial edicts into a Code in 528. In effect,
this work was an update of the previous Code assembled by the Emperor Theodosius a
century before. Now lawyers needed only to look to the Code to find the statutes of the
Roman Empire. A superseding version of the Code, the only one that survives, replaced the
original several years later.
 The success of this enterprise emboldened Justinian for the major work of his legal reform,
the promulgation of the Digest, or Pandects, the authoritative collection and harmonization
of the main body of Roman law, the opinions of the jurisconsults. For this, Tribonian
gathered panels of law professors, lawyers, and judges, who poured through hundreds of
texts, thousands of opinions, to find and harmonize the best views of a millennium of Roman
legal thought. Justinian's edict described the task:
The organs of the state in Rome
 The Birth of the Republic-As legend has it, the city of Rome was founded by Romulus and
his brothers around the Eighth Century B.C.E. Romulus, who was rescued and raised by
wolves, established the city of Rome on the Palantie Hills. Following a series of battles
among Romulus and his brothers, Romulus managed to become the sole ruler of the newly
founded city.
 As one of his first acts, Romulus established an advisory council consisting of the 100
heads of families, called Patres ("Fathers").This body soon got the name Senatus (senate)
which in Latin is understood to mean the council of elders or committee of old men. After
the death of Romulus the senate was assigned with the task of selecting the future king. The
tasks long with advisement were the only roles the senate had during the monarchy.
 In 495 B.C.E., a treaty was signed between Rome and the other provinces of Latinum. The
document proclaimed Rome as the sole ruler of Latinum. To fill the leadership gap left by
the involuntary departure of the king, the Roman elite selected two consuls to govern the
new republic. Each consul was in power for one year and their authority was similar to that
of a king. The consuls, who were required to consult with senate on various matters, were
vested with the military, judicial, administrative, and religious powers of a king. The two
shared all the powers bestowed upon them by the senate and had the authority to veto each
other's actions.
 The Senate-In the meantime, the senate, which survived the revolution, witnessed a new
dawn of superiority and dominance in the republic. Under the monarchy the senate was only
an advisory body. It did not possess any real power. However, in the republic, the senate
evolved into the most powerful governing body. In achieving this, the senate increased its

31
membership from one hundred to three hundred, with membership being limited to Roman
Aristocrats.
 The most common misconception that people share about the Roman senate is the belief
that the senate was a legislative body. However, the senate was a committee comprised of
influential Roman elites who issued recommendations on legal practices. Although the
senate possessed no legislative power, it had considerable authority over matters of
religion, foreign policy and public finance. Moreover, its decrees in other matters were well
respected. As the embodiment of Rome, the senate also had the authority to manage and
control land, appoint and receive ambassadors on behalf of the republic, declare war,
appropriate public funds, aid its citizens in foreign lands, and select consuls. Additionally,
during national emergencies, the senate had the power to appoint a dictator whose powers
were not constrained by the law of the state.
 Despite all its power, the senate operated in accordance with religious restrictions. The
senate could only convene for certain governmental meetings at selected temples.
 The Assembly-The main legislative body of the Roman republic was the assembly which
like the senate, was established during the monarchy. However, unlike the senate that had
tremendous authority, the assembly had very little power both in the monarchy and the
republic. The assembly was comprised of male Roman citizens serving in the army. These
men were mostly commoners from lower economic standings. Further, the members of the
assembly were divided into five classes. The classes were determined by wealth, with the
wealthiest being in the higher class and the poor in the lower. (In Roman time a man's
wealth was measured by how much equipment a man could afford.) These classes which
were known as "Centuries" varied in size and power. The lower centuries, which were
reserved for the landless and the poor had tens of thousands of members while the higher
centuries had two to three hundred members. Despite their larger size, the lower centuries
had little to no power. Most of the voting and decision making were done by the higher
centuries. In fact, the lower centuries were often denied the opportunity to cast their votes.
 During the monarchy the assembly was the second most powerful political institution. (The
king being the most powerful.) It had the power to regulate the senate and guide them in
their selection of counsels. The assembly convened to witness the announcement of a new
king or a declaration of war. Further, the assembly had the power to rule on matters of wills
and transfer of lands. However, in the republic the assembly lost many of its powers to the
senate. The assembly's role was limited to passing laws, electing magistrates, declaring war
and repealing old laws. The lessening of the assembly's power was rooted in the struggle
between the orders.
 Codification of Laws and the Twelve Tables-The commission was comprised of ten men,
five plebs and five patricians. The members of the commission, who were referred to as
decemviri, wisely codified the Roman laws into ten chapters and unveiled it to the Republic
in 451 B.C.E. A year later, a newly elected commission, added two more chapters. The
twelve chapters were then inscribed into twelve metal or wood tablets, and permanently
placed in the Roman Forum for the inspection of all the citizens. Small copies were also
made for the public and they were widely used. Thereafter, the laws established by the
decemviris were commonly designated as the Twelve Tables of Roman Law.
 The Twelve Tables covered all the areas of the law. Unfortunately, the Tables were
destroyed in 390 B.C.E., during the invasion of Rome by the Gauls. As a result, the exact
content of the Twelve Tables remains a mystery. Nonetheless, numerous fragments have
been gathered from the writing of ancient authors such as Cicero, Dionysius and Gaius.
From their references historians have been able to extract laws governing theft, property,
fraud, debts, and various other crimes. The following are some of these laws. "One was
permitted to remove a branch from a neighbor's tree which overhung one's property.""For

32
the theft of crops there was the death penalty (clubbing to death).""For slander there was the
death penalty (clubbing to death).""Marriage between patricians and plebeians is forbidden"
 Amazingly, the Tables differentiated between intentional and accidental crimes. This
illustrates that the concept of Mens Rea possibly dates back to ancient times. There were
also different degrees for assaults, and murders. However, despite its legal sophistication,
the Twelve Tables was not the perfection of equity or justice. The law assigned different
degrees of punishment in accordance with classes. For instance, slaves and peasants
received the harshest punishments while the nobles received milder punishments.
Furthermore, as often is the case in modern legislation, the tables were deliberately codified
in obscure and ambiguous language to allow the patrician judges to interpret them in a
manner that would serve their interest. Regardless of its bias, the Twelve Tables remain as
one of the greatest achievements in the history of human civilization. In fact, many scholars
contend that the codification of the Twelve Tables marks the beginning of European law.
 The Fall of the Republic and the Rise of the Empire-The expansion of the Republic brought
tremendous wealth to Rome. However, the riches were in the hands of a few. The rich were
getting richer and the poor, impoverished by the long wars, were getting poorer. The social
disparity once again led a series of reform legislation. Land ownership regulations along with
new debt relief were introduced. New criminal courts were established and jurors were
allowed to be taken from the middle class. The law of appeal was brought back so citizens
could request a rehearing before the assembly. However, around 66 B.C.E. a new breed of
aristocrats appeared who wished to return Rome to the early years of the republic and to
isolate the power in the hands of a few.
 Evolution of Roman Law and the Rise of Law Schools During the Empire-The death of
Caesar marked the end of the Republic. Following his assassination, Rome fell into a short
period of war, but Caesar's successor and grandnephew Gaius Octavius quickly mobilized
his forces and proclaimed himself the absolute ruler of Rome. The reign of Octavius (also
known as Emeror Augustus) marked the beginning of the Roman Empire. For the next two
hundred years the sole concern of Rome was glory and expansion. There were a very few
laws passed of any importance. Private laws of the aristocracy governed the domestic life of
the citizens. The life, liberty and property of the people were at the mercy of the king. The
senate, which was still in existence, only passed laws that promoted the power of the king.
However, in the late Second Century, there was a revival of Roman jurisprudence. By this
time, the empire had become so vast that a new legal system was needed. Thus,
jurisdictions were assigned to courts through the empire and the procedures for appeals
were made more definite. Moreover, judges were allowed to publish their opinions. This was
significant to the study of law because it allowed individuals to examine the rationales of the
judiciary. Nonetheless, the biggest piece of legislation was The Perpeual Edict, which
regulated procedural laws, property and the market. The law required vendors to disclose
hidden defects and imposed liability on the intentional destruction of the property of another.
These laws were the first of their kind and they would lay the foundation for many similar
laws in future societies.
 From the Second Century to the Fifth Century, Roman law witnessed limited progress.
During this period, the empire's primary concern was expansion. By the end of Fourth
Century, Rome had conquered Gaul (Modern France), Spain, Judea, Britain, Africa, and
much of Asia Minor. In the process, Rome adopted Christianity as its official religion and
established a new capital in the eastern part of the empire. The new city was named
Constantinople, after the infamous Roman emperor Constantine the Great who was the first
Roman ruler to embrace Christianity. Constantine ruled from 306 to 337 B.C.E. and was the
founder of Constantinople (present-day Istanbul), which remained the capital of the Eastern
Roman (Byzantine) Empire until 1453.

33
 With the rise of Constantinople, came the birth of law schools in Rome and Constantinople.
The law schools were public institutions under the direct control of the emperors. They
offered a five year program in areas of law prescribed by the imperial authority. Students
were taught by authorized instructors who had attained a license from the imperial office.
Severe punishments were imposed upon those who taught without a license. Like the
Twelve Tables, the establishment of law schools was a monumental achievement in the
advancement of Roman law. It provided an arena where the law could be analyzed,
discussed and taught by prominent jurists. In a short time, these scholarly institutions
became the breeding ground for many revolutionary legal doctrines, but none were more
revolutionary than the Corpus Juris Civilis.
 Justinian's Corpus Juris Civilis-Often referred to by scholars as the greatest legal product of
Roman law, the Corpus Juris Civilis, also known as the Justinian Compilation or the
Justinian Code, was codified during the reign of Roman emperor Flavius Petrus Sabgatius
Justinianus (Justinian, 483-565 C.E.). Justinian was born to a peasant family on May 11,
483 C.E. in modern Romania. He received his education in Constantinople and he was well
versed in theology, philosophy, poetry, architecture, and law. At age 35, his uncle Justin
became emperor. Justin was a former soldier and he lacked experience in public affairs.
Thus, in 524 C.E., he appointed Justinian as his co-emperor. In 527 C.E., upon his uncle's
death, Justinian became the sole ruler of Rome. Justinian was an "executive of rare
qualities." He understood the needs of his empire and he had the energy and the know how
to meet those needs. Upon coming to power, he began extensive public construction
projects, by building new roads, and bridges. Militarily, he led successful campaigns against
the Vandals in Africa and the Persians. Nonetheless, Justinian's greatest accomplishment
was the codification of Roman law and the publication of the Corpus Juris Civilis.
 By the time of Justinian, Roman law had reached its highest peak. The laws were highly
developed and scattered in various manuscripts and imperial scrolls. Justinian was
extremely passionate about the rich history of Roman law. His desire was to collect all of
Roman laws and transform them into a coherent body. To do so, he appointed a sixteen
member commission (comprised of law professors and consuls) to gather all the imperial
scripts, imperial laws and the writings of renowned jurists. On December 15, 530 C.E., in an
imperial instruction to the commission, Justinian said: "It is our desire to arrange the
constitution of former emperors in a proper order ... we shall rearrange the entire
Jurisprudence of Rome and to present in one volume the scattered works of many
authors ... this is a task that no one has dared to do ... it is a task not only of great difficulty
but impossible ... However trusting in God ... we shall be glorious."
 Per Justinian's instructions, the commission gathered all the laws and organized them in a
systematic manner. They presented their work in twelve book volumes, entitled Justinian
Codex or Justinian Code. The books were divided into chapters, with each being devoted to
a specific area of the law. Shortly after, the commission embarked upon reviewing the work
of jurists. In a span of three years the commission examined and summarized over two
thousand books or rolls. Each excerpt was accredited with the name of the author and the
book from which it was extracted. The final product was a fifty book volume called the
Digest. Each book was divided into chapters in accordance with different legal topics and
theories. Upon its approval by Justinian, the Digest became the supreme law of the land. In
a proclamation to his people Justinian said: "In every trial or other legal contest ... where
rules of law have to be enforced, let no one quote or strive to maintain any rule of law save
such as are composed and promulgated by us."
 Prior to completion of the Digest, Justinian had recognized that the Corpus Juris Civili was
too burdensome a task for a law student to carry. Accordingly he ordered the commission to
compose a text book based on the primary principles of Roman law. The book, which was
titled the Institute of Justinian, was comprised of four parts. Overall the book encompassed

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areas governing parental rights, marriage, adoption, servitudes, gifts, wills, and other areas
of civil law. In a short time, the Institute of Justinian became the official text for all the law
schools throughout the Roman Empire. In fact, the Institute of Justinian was the basis for
Roman law teaching in the law schools of Medieval Europe. Furthermore, many modern
legal scholars contend that the Institute of Justinian was the blueprint for the curriculum of
Anglo-American law schools.
 With the completion of the Code, the Institute of Justinian, and the Digest, Justinian had
finished his masterpiece. The three volume document, which embodied the entire Roman
civil law, subsequently came to be known as Corpus Juris Civili. This document has been
without a doubt one of the most important and influential legal documents ever composed.
With his work, Justinian preserved Roman law and its traditions for subsequent generations.
Nonetheless, Corpus Juris Civili's, greatest significance has been its impact on the legal
systems of the Western World. Areas such as continental Europe, Latin America, and parts
of Africa, Canada, Sri Lanka, South Africa, modern Turkey, China, Japan, and the United
States derived their legal concepts, approaches, structure, and system of civil laws from
centuries of laws and legal writings codified in the Corpus Juris Civili. In other words, by
composing Corpus Juris Civili, Justinian laid the foundation for modern law.

The Meaning of Roman law:

 Roman law constitutes the foundation of the civilian tradition. Most contemporary civil law
institutions can be traced directly to Roman sources. Roman law has been expounded and
studied by great jurists and has been shaped into a substantively and formally rational
system. As a closed system, Roman law lends itself to logical analysis which sharpens the
intellect; as the foundation of a living tradition and of a superb conceptual technique, leads
to juristic craftsmanship.
1. The Justinian compilation:
 Emperor Justinian’s (527-565 A.D.) ambition was to restore the Roman Empire under one
system of law under one Church.
 The Justinian compilation was designed to replace all literature and all legislation, to achieve
unification of law, and to make the law accessible to all. To guard against “deterioration” of
his legislation, Justinian banned all Comments and Notes with the exception of translations
into Greek and the publication of Indices.
 The Justinian legislation is divided into four parts, which, in chronological order, are: the
Code, the Digest, the Institutes, and the Novellae, a brief account of each follows.
2. The Code:
 The Justinian Code contains the entire body of imperial legislation. As it includes imperial
decrees issued prior to the days of Emperor Constantine and after the days of Emperor
Theodosian, its coverage is complete.
 The Code was compiled in one year and acquired the force of law on April 16, 529 (ten days
after its promulgation). After the promulgation of the Digest and the Institutes, the Code
became in part obsolete and was revised.
 The contents of the Code are systematically arranged according to the subject matter
regulated.
3. The Digest:
 The Digest (Pandects) is the most important part of the Justinian compilation. It contains
fragments of classical texts digested according to the subject matter regulated. The writers
digested range from the 1st century B.C. to the 4th century A.D. Ulpian is given about one-
third of the whole and Paul one-sixth. Two thousand books were examined with more than
three million lines, and were condensed to 150,000 lines.

35
 The Digest consists of 50 Books subdivided into titles. The arrangement of the subject
matter in the Digest follows, in general, the pattern of the praetorian Edict. Widely scattered
sources have been brought together as bearing on the same subject matter. The source of
each provision is always indicated (author and title of the book extracted). The Digest
acquired the force of law on December 30, 533.
4. The Institutes:
 The Digest needed introduction for the purpose of a better understanding and was
accomplished by the Institutes. This part of the Justinian legislation is a coherent text based
largely on Gaius’ similar book. The sources of the particular provisions, however, have not
been stated. The Institutes are basically a textbook enacted into law for educational
purposes.
5. The Novellae:
 Is a collection of decrees issued by Justinian. They contain provisions concerning
administrative reforms, church policies, and private law. Scattered ideas and rules were
systematized and resulted in partial re-codification. Particularly affected were the law of
marriage, the status of illegitimate children, and the law of successions. There has been no
official codification of the Novellae; their text has been preserved in private collections.
Although originally promulgated in Greek, the Novellae are extant mostly in Latin translation.
6. Byzantine law:
 The compilation of Justinian is the terminal point in the development of Roman law in a strict
sense. In the following centuries a Byzantine legal system was developed in the East and a
medieval Romanist science in the West. These developments led to the era of “reception”
and finally to modern codifications.
 The eastern Empire became Hellenized Byzantine Empire which lasted until the fall of
Constantinople (1453). The Empire was ruled by the Emperor who had concentrated in his
hands on all political and religious authorities and powers (Ceasaropapism). The
foundations of the Empire were Christian. There was new nobility in Byzantium but no
feudalism.
 Imperial legislation was the only official source of law. Imperial enactments (Novellae)
continued to be issued and there were several efforts at re-codification. Ancient customs
survived and, frequently, were in competition with imperial legislation. An iconoclast
emperor, Leo the Isaurian (714-741) promulgated the Ecologa (Selection). This was a brief
codification of civil law in Greek designed to reform the law, make it accessible to the
indigenous population, and to sanction surviving Greek customs. The reformation, however,
led to a religious war and Leo’s successor repealed the Ecologa. Emperor Basil the
Macedonian (867-886) promulgated the Procheiron (Handbook) and Epanagoge (Re-
introduction). Both of these collections were ostensibly based on the Justinian compilation
but in reality they re-introduced the substance of the Ecologa. Finally, Leo the Wise (886-
911) promulgated the Basilica (Royal legislation). This was the last attempt at re-
codification. The new legislation, though based on the Justinian compilation, constituted an
integrated whole into 50 titles. Obsolete rules were eliminated and a number of new rules
were included.
 The Western Empire was dissolved in 476 by invading German tribes, the East and West
Goths, Franks, Vandals, Longovards, and others. A general decline of civilization ensued.
The conquered territories were subjected to a feudal organization. The Roman law was
preserved by the Church (Canon law) and in certain areas it survived also as a custom.
Several of the Germanic kings sponsored compilations referred to as leges barbarorum.
There was no legal literature in those dark ages, except some short notes on the “barbarian
legislation.”
 Around 1100 political, economic, and psychological conditions led to the rediscovery of
Roman law and to its renewed study. There were new kingdoms and new urban life in the

36
former Roman territories; international communication and trade had grown; the Church was
reorganized in search of political power; there was a renewed interest in classics and art;
and law schools were founded in Provence, Pavia, and Ravenna. But the Digest was still
unknown. Other parts of the Justinian compilation had been introduced in Italy in 554 and
had acquired some practical significance. The discovery of a manuscript of the Digest
(dated 600) in Piza gave a new impetus to legal studies.

The contributions of Roman law

 The Code Corpus Juris Civilis, also called the Code of Justinian, was made up of four
documents, i.e., the Codex, the Institutes, the Novel and Digest. The Institute is an official
elementary textbook for students. The Institute contains a description of the law. The Digest
is also called the Pandects; it contains quotations from writings of thirty-nine leading Roman
jurists. The quotations are arranged in an order taken from a document issued each year by
the new chief legal officers of Rome called the Praetors. The Digest is unclear and contains
many contradictions. The Codex consists of decrees of the various Roman emperors. The
Novel consists of later decrees and completes the work known as the Corpus Juris Civilis.
Emperor Justinian ordered all the four parts of his code to apply with equal force.
 The civil law tradition is a composite of several distinct sub-traditions, with separate origins
and developments in different periods of history. The oldest sub-tradition is directly traceable
to the Roman law as complied and codified under Justinian in the sixth century A.D
 The Corpus Juris Civilis of Justinian was not restricted to Raman Civil Law. It included
much that had to do with the power of the emperor, the organization of the empire, and a
variety of other matters that lawyers today would classify as public law.
 With the rise of the nation state and the growth of the concept of national sovereignty,
particularly from the fifteenth century and with the demise of the Holy Roman Empire as
anything but a fiction, and the age of the jus commune of a common law of Europe waned,
and the period of the national law began. In some part of Europe (e.g. Germany), the
Roman Civil Law and the writings of the Belgians scholars were formally "received" as
binding law (civil lawyers use the term "reception" to sum up the process by which the nation
- states of the civil law world came to include the jus commune in their national legal
systems) in other parts of Europe the reception was less formal; the Corpus Juris Civilis and
the words of the Glossators and Commentators were received became of there value as
customary law or because of their apple as intellectually superior system. But, by one
means or another, Roman Civil law was received thought a large part of Western Europe, in
the nations that are now the home of the civil law tradition.
 The appearance of the modern bureaucratic state, the competing ideas of dynastic and
popular sovereignty, and the growth of legal positivism led to the idea that legislation is a
function of the state. An awakened nationalism and the development of natural law
jurisprudence led to the era of codification and brought to an end the period of direct
application of Roman law. Eventually, in the nineteenth century, the principal states of
Western Europe adopted civil codes (as well as other codes) of which the French Code
Napoleon of 1804 is the archetype. The subject matter of the civil codes was almost
identical with the subject matter of the first three books of the Institutes of Justinian and the
jus commune of medieval Europe. The principal concepts were Roman and medieval
common law in nature, and the organization and conceptual structure were similar.

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The transformation of the Digest and Canon law

The Romans left two great monuments to the European peoples long after their political and military dominance had faded into
memory. The first was their remarkable civil engineering infrastructure of roads, bridges, aqueducts, baths, and public buildings. The
second was their legal system. Roman law has survived for over two thousand years. Its use has ebbed and flowed. It was a living,
vital legal system from the first century B.C. until the sixth century A.D. During the early part of the sixth century, Emperor Justinian
decided to revitalize and purify Roman law by effecting a massive codification. Between 529 and 534, a group of lawyers and civil
servants produced a comprehensive codification of more than six centuries of legal learning. The principal parts of this codification-
known since the sixteenth century as the Corpus Iuris Civilis-consisted of the Institutes, designed to be an elementary textbook of
Roman legal principles for use in law schools; the Digest, a compilation of legal writings by the classical jurists; and the Code and
the Novels, compilations of imperial enactments and bureaucratic law. Of these three, it was the Digest, which contained the
overwhelming amount of Roman private law and virtually all of the Roman legal theory that survived.

During the centuries that followed the sixth century codification and the increasing isolation of the residual empire now based in the
Greek East, Roman law continued to play an important role in the developing legal systems of early medieval Europe, but it was
Roman law as known from pre-sixth century sources, primarily the Theodsian Code, and from the actual practices then common.
The learning of the Digest was hardly known at all from the British Channel to the Danube River. During the eleventh and twelfth
centuries, a great deal of interest in law in general-and in Roman law in particular-began to arise in Northern Italy. This increase in
interest in things legal was immensely accelerated by two things: the composition of a coherent, scholastic text of canon law by a
monk, Gratian, and by the "rediscovery" of a sixth century manuscript of the Digest. The combination of Gratian's Decretum (as it
was known) and the newly found Digest manuscript provided the two fundamental texts needed to foster the rebirth of a legal
profession in western Europe, the rise of university law schools, and the growth of medieval legal systems throughout Europe,
which, of course, are the progenitors of our modern systems of civil law.

The history of the rediscovery of the Digest and the role of Roman Law within this history, a part of what Charles Homer Haskins
called the "renaissance of the twelfth century ``is far too large a subject for my talk today. I want to focus on one, small point of legal
and textual history. Virtually every scholar of medieval law believes that the rediscovery of the Digest manuscript was one of the
most important events of the high Middle Ages. To this event the rebirth of legal science is ascribed. The manuscript is discovered,
we are told, and suddenly Roman law is reintroduced in all its glory to Western Europe. A marvelous vision, perhaps, but is it
accurate?

I am, as you all know, a lawyer. As a lawyer, I tend to think in rather simplistic and practical terms. I have studied the Digest
manuscript to which is attributed the rebirth of Roman law. I can tell you only one thing new about it. I can guarantee that manuscript
alone could not have caused a rebirth of legal science. It could not have done so for a very simple reason. The Florentina, as the
manuscript is commonly known, is a manuscript of enormous size. It does, after all, contain the accumulated wisdom of almost six
centuries of Roman jurisprudence. Furthermore, its arrangement is not easy. It is, in fact, unbelievably confusing. The precise
rationale behind the structure of the Digest as it has come down to us remains a subject of debate and controversy. What is clear is
that it was not arranged for ease of use. It is arranged neither chronologically, which would be of maximum use to the historian, nor
topically, which would be of maximum use to the lawyer. If one turns to the Digest to discover the Roman legal rule on a particular
topic-validity of wills, for example-one cannot find the answer easily. In fact, without help, the only way to find the answer, if one
wants to be thorough, is to read the whole thing. I would suggest that this unwieldy, difficult, and terribly long manuscript, written in
Roman legal jargon, was not very helpful as a legal text to its discoverers. In modern terms, it was simply not easily accessible. Any
historian who fails to understand this simple fact cannot possibly understand the renaissance of the twelfth century.

The renaissance of the twelfth century-at least in so far as the law was concerned-depended not only upon its fundamental texts,
the Digest and the Decretum, it also depended upon the discovery of ways to access those texts. Indeed, I would suggest that the
development of university legal education during the twelfth and thirteenth centuries was, to a large extent, the development of
techniques and devices designed to make these two texts accessible and therefore useable. The whole format of early university
education was, in essence, designed to provide tools for accessibility. We can understand the importance of the development of
mnemonic techniques, so wonderfully chronicled by Professor Mary Carruthers, in this light. We should most certainly understand
the development of the standard commentary or gloss to these texts, known as the Glossa Ordinaria, in this way as well. These
early glosses provide two things for the student and the reader. They provide definitional help in that they explain the technical
terms, and they provide cross-references to other passages in the text that permit the reader to find all of the necessary learning on
a particular topic. Thus, if a lawyer can find one relevant passage in the text that is glossed, then he will, by using the gloss, be able
to find other relevant passages. The gloss is, in effect, a dictionary and a finding aid. University law lectures, in which masters
glossed particular sections of the fundamental texts, were, in the earliest period, specifically designed to provide these ancillary, but

38
absolutely necessary, tools to their auditors. One needed to attend university lectures in order to acquire these tools necessary to
practice law. Without the text and the finding aids, one simply could not look up the answers to questions as they arose.

By the end of the thirteenth century, the glosses to the fundamental texts had become standardized and, even more importantly,
sometime in the late thirteenth century, according to Professors Richard and Mary Rouse, somebody had invented the best finding
aid of all: the alphabetical index. While the evidence suggests that the first indices were made for biblical texts, there is also strong
evidence that very soon after indices began to be made for the Bible, they began to be made for the Digest and the Decretum. If one
wants to understand the true nature of the rebirth of legal science in the Middle Ages, one must not simply speak of the rediscovery
of the Digest and the creation of the Decretum. The rebirth of legal science took place over a period of roughly 150 years and
required a combination of the availability of the fundamental texts and the development of ancillary texts that made these texts
accessible. Without the efforts of these early commentators and indexers, the Florentine manuscript of the Digest would have
remained nothing more than an antiquarian curiosity, suspended in a cage in a Florentine church. The rebirth of legal science
required both a text and a means of accessing and understanding that text. In studying the history of the development of medieval
finding aids-the gloss and the index-one can then and only then begin to understand what actually happened. Without the history of
the book, there can be no accurate history of the development of the law and of legal doctrine in this situation. Put simply, without
the development of the index, the gloss, and other finding aids, Roman law-and canon law to a degree-might well have remained a
closed book.

The second example to which I will draw your attention also concerns the transmission of one legal system to another, not in the
twelfth and thirteenth centuries, but in the eighteenth and nineteenth centuries. The rediscovery of Roman law during the Middle
Ages set the groundwork for the development of national legal systems throughout Western Europe. The legal systems of France,
Germany, Austria, Spain, Italy, and Portugal, among others, all derived their substantive and procedural rules from a combination of
Roman law and national custom. Indeed, as Professor Manlio Bellomo and others have argued, there developed throughout
Western Europe what may be called ius commune, a common law, based upon Roman models. Thus, from the Middle Ages on, the
study of Roman law flourished throughout Europe as did the development of the systems based upon it. The one non-participant in
this shared Roman-based system was England. In England, there developed, essentially in isolation, another system of
jurisprudence that came to be called the common law. This system spread to Ireland and to many of the English colonies, including
the United States. At the time of the American Revolution, the Anglo-American common law was the common legal heritage of
England and her colonies (with the exception of Scotland which had a hybrid common-civil law system).

When the English colonies in America declared their independence from England and formed the United States, the law, as it then
existed, was English common law. This posed a number of difficulties for the new nation, its legislators, and its lawyers. First, there
was quite a bit of hostility to the English following the Revolution. After the War of 1812 and the sacking of Washington, this hostility
intensified until anything English, including its legal system, was anathema to many United States citizens. Second, the English
common law developed within the very peculiar circumstances of England. Many of the legal doctrines developed there were simply
inapposite for the new United States. For instance, in the field of water law, the common law developed in an environment in which
water was relatively plentiful. In the United States, particularly in the West, circumstances were quite different and different law was
needed. For these and other reasons, many Americans in the antebellum period sought alternatives to the English common law as a
source for American law. They turned, not surprisingly, to the Roman and civilian systems of Europe.

2.1.9 Accessibility of the Digest

As part of his effort to restore the grandeur of the Latin Roman Empire, the Byzantine emperor Justinian (r. 527-565) appointed a
commission, under the leadership of his quaestor palatii, Tribonian, to collect the disparate sources of Roman law. In 533, just three
years after the commission had begun its work, Justinian promulgated the commission's chef d'oeuvre, the Digest (or Pandects).
The Digest is a collection in fifty books of excerpts from the writings of the classical jurists dating from the late Roman Republic to
the beginning of the third century A.D. The year 533 also saw the promulgation of the Institutes, an elementary textbook based in
large part on the work of the same name by the second-century jurist, Gaius. In the following year, Justinian promulgated the Code,
a collection in twelve books of excerpts from the constitutions (roughly, legislative pronouncements) of the Roman emperors dating
back to Hadrian (r. 117-138). Justinian's constitutions that date from after 534 were not officially collected in his lifetime, but an
unofficial collection, known as the Novels, was compiled shortly after his death.

These four works, the Institutes, the Digest, the Code, and the Novels (which have been known in the West since the sixteenth
century under the name Corpus Juris Civilis ("Body of Civil Law"'), rank with the Bible as the most important works through which
the culture of the ancient world has been transmitted to the modern. No western legal system, including the Anglo-American, is free
from the influence of the Corpus Juris. Law students on the Continent and in England have studied the Corpus Juris from the
thirteenth century to the present day. Its structure, its vocabulary, and its rules are immediately visible in the "civil law"' systems of

39
western Europe and of those countries that were colonized by western Europeans or that borrowed their legal systems from western
Europe. Perhaps more important, the legal method and general legal ideas reflected in the Corpus Juris are the source of, and
remain remarkably similar to, those employed by lawyers in the West today and by those non-western lawyers who have fallen
under the sway of western legal culture.

Of the four parts of the Corpus Juris Civilis, the Digest is by far the longest. It is an indispensable source for anyone seeking a more
than superficial knowledge of Roman law, whether it be the Roman law of the period of the jurists (c. 100 B.C. to c. 240 A.D.), or of
Justinian, or of the "second life"' of Roman law, when Roman law was an object of academic study in the West (c. 1100 to the
present). Clearly, the work ought to be available in translation, but the structure of the Digest, the manner in which it was compiled,
and the fact that the reader's purpose may be to understand the law of three very different periods all pose serious problems for the
translator. Readers of the Digest, moreover, have varying degrees of sophistication in Latin and Roman law. Although the
translation under review is a great improvement over the prior one, a few words about the Digest, how it was composed, and how it
has been interpreted may more fully explain the problems with translating it and may suggest that a more literal translation would
serve the needs of most types of readers better than this one.

The 9,127 extracts that make up the Digest range in length from a few words to several pages. Most approximate the length of a
modern paragraph. Each is headed by the name of the jurist to whom it is ascribed, the title of the work from which it comes, and the
number of the book in the original work--e.g., "Ulpian in the eighteenth book on the Edict"'; "Modestinus in the first book of Rules."'
The extracts are gathered into titles, the rubrics of which indicate the subject that the extract was meant to illustrate--e.g., "On the
lex Aquilia [the basic Roman statute on wrongful damage to property]"; "On the rite of nuptials."' The 430 titles are arranged in fifty
books of roughly equal length. The titles themselves, however, vary greatly in length, ranging from De legatis et fideicommissis
("Concerning legacies and 'trusts"DD"), which occupies all of books 30-33, to the thirty-three brief titles on interdicts that make up
book 43.

The order of the titles and books is puzzling. It is related to the course of legal education in Justinian's time but is determined more
by the order of the praetor's edict, a collection of formulae and official promises to allow actions that had formed the basis of the
private law in the period of the jurists. The edict had grown over time. Some of the topics covered in the edict are related to others
close by, but the edict as a whole is not systematic. The order of the extracts within the titles of the Digest is also puzzling. We
occasionally find groups of texts that go together and some that make no sense unless they are read together. By and large,
however, the order of the extracts is not dictated by the sense of the texts but by the largely arbitrary order in which the compilers
did their extracting. A text that is not in this arbitrary order is of interest, because someone, probably the compilers, thought it
important to rearrange its order.

We have, then, a collection of extracts, the vast majority of which were written at least three hundred years before the compilation of
the Digest and some of which were written more than six hundred years before its compilation. The compilers assembled the
extracts to serve the purposes of a Byzantine emperor who ordered their use in legal education and in the courts of his Empire.
Each of the jurists who wrote the extracts reflected the law and conditions of his own time--law and conditions that varied
considerably over the course of the juristic period. Likewise, those who extracted and arranged the jurists' writings reflected the law
and conditions of their own time. For example, the earliest jurists extracted in the Digest wrote when Rome was a Republic; the last
jurists wrote when Rome was an autarchy that still preserved the facade of a Republic, and the compilers worked in a period when
Byzantium was unabashedly an autarchy.

The modern reader can use the Digest to study three distinct periods of Roman law. If one wants to reconstruct the law of the time
in which the jurists wrote, the fact that our principal source of knowledge is extracts compiled almost three hundred years after the
last jurist died is an obvious source of difficulty. Even if the compilers had slavishly copied the extracts from the original texts, they
would have left out much that was not relevant in their own time but that is relevant for understanding the law of the time in which
the jurists wrote. The most notable omissions are in the area of civil procedure: An entirely different form of procedure was in effect
in Justinian's time from that assumed in most juristic writing. Sources independent of Justinian's compilation allow us to understand
most of the procedural references embedded in the texts in the Digest, but large gaps still exist in our knowledge of how the older
procedure worked.

But the problem is more serious than just the compilers' omissions. They did not simply copy the original juristic texts. Rather,
Justinian instructed them to emend the extracts to make them conform to the law of their time, to remove contradictions, and to
shorten them. That they followed their instructions is evident: A few of the texts in the Digest survive independent of the Digest, and
we can see how the compilers of the Digest changed them. How much they changed the texts that do not survive independent of
the Digest is a subject of much debate. The question is made more difficult by the fact that we know that some of the texts that the
compilers were extracting had already been changed during the period between the jurists and that of the compilers.

40
Scholarly opinion has varied considerably on this question of "'interpolations"' in the Digest. The previous generation of Romanists
tended to view the texts as radically altered. They proposed radical emendations to restore them to their original state. Modern
Romanists tend to be more cautious; they reject the more radical reconstructions of the past generation, either on the ground that
the evidence does not warrant the inference that so much was changed, or on the ground that however much the texts were
changed we have insufficient evidence to reconstruct their original state. This more cautious approach stresses *1061 that the
compilation was an essentially conservative enterprise, a restoration of the glories of the Roman legal past, and that the compilers
simply did not have the time to do extensive editorial work.

Whatever view one takes of the amount of interpolation in the Digest texts, no one denies that interpolations exist and that the best
way of finding them is to study the texts themselves. For example, if a Republican author appears to use a word not otherwise
recorded until the late Empire, then that is a pretty good clue that someone has been fooling around with the text. Similarly,
awkwardness in the syntax, restrictive clauses added to the end of a quotation, and the absence of expected qualifications all
indicate that the text at which we are looking is not what the cited jurist wrote.

If the problem with the Digest text for those who are seeking to restore the original text is figuring out what changes the compilers
made, then the problem for those interested in the law of Justinian's time is figuring out what texts should have been changed but
were not. Here, too, the discovery of interpolations is important. When the compilers changed a text, they did so for a reason.
Sometimes they changed the text simply because the original was too long, but they frequently changed the text because it did not
conform to the law as they knew it. Thus, the changes the compilers made provide clues to what the law was in Justinian's time. But
knowing that a text is not suspected of interpolation is also useful for reconstructing the law of Justinian's time: If the text says
something that does not conform to what we have other grounds to suspect was Justinian's law, we may view that text as
unrepresentative of Byzantine law on the ground that the compilers failed to change it to conform to the law of their time.

The problem for those looking for the law of the Middle Ages or the early modern period is somewhat different. The text of the Digest
used in the universities until the time of the great critical editions of the nineteenth century was not quite the same as that of the
critical editions. Further, from the middle of the thirteenth century, this "Vulgate"' text was accompanied by an elaborate series of
commentaries, principal among which was the great gloss (basically a set of explanatory notes) compiled by the Bolognese scholar
Accursius. In many cases, a reading of the gloss shows that the Romanists of the Middle Ages or the early modern period
understood the text differently from the way in which the jurists or Justinian's compilers probably did.

Some might argue that the Digest should not be translated. It is simply *1062 too difficult a text. I tend toward the view that it must
be translated. It is simply too important a text to leave to those increasingly few specialists who can manage the Latin of the original.
If English-speaking law students and historians are to have access to the Digest in the late twentieth century, it must be available in
English. A translation is useful for readers of all levels of Latin proficiency. The reader who is fully capable of translating the original
can check his own translation (especially of particularly troublesome passages) and can more easily locate passages on a given
topic. A translation is even more useful for the reader who knows some Latin, but cannot translate the Digest without help: The
translation then becomes a guide, a "trot"' if you will, to the translation of the Latin. A third type of reader, one with no background in
Latin at all, will have to rely on the translation to bring him as close to the original as he is going to get.

The interesting thing about this spectrum is that each of these types of readers will benefit from a slavishly literal translation. With
such a translation, the sophisticated reader will spot the passages for which he is looking faster and will know that the passage he
finds troublesome troubled someone else. The less sophisticated reader who knows some Latin will have just the type of guide he
needs to puzzle out the original text. The reader who knows no Latin will be able to get a feel for a difficult Latin text through the
medium of a difficult English text and will end up having the original text speak to him more directly.

But to say that an English translation of the Digest ought to be done is not to say that this one should have been done. When this
translation was undertaken, S.P. Scott's translation, done in the early part of this century and published as part of his massive The
Civil Law, already existed. Scott, however, was an amateur. He was a lawyer by profession, and his command of classical literary
Latin was good. But knowledge of American law and acquaintance with Cicero's Latin are insufficient qualities for a translator of the
Digest. If Scott had immersed himself in the Roman law scholarship available in his day, he probably could have produced an
adequate translation-- one good enough that it might not be worth doing again. But Scott chose to operate on his own. He did not
use Mommsen's great critical edition of the Digest and translated instead from the Vulgate edition of the glossators, thus limiting the
usefulness of the translation for those concerned with the classical or Byzantine world. Although Scott's work was published in 1932,
it shows no knowledge of any of the impressive achievements of Roman law scholarship made since the middle of the nineteenth
century.

Even this might not lead one to reject the translation if Scott had exercised more care. The translation would have been odd, but the
very oddness would have pointed to the difficulties with the text. But Scott was not careful. He translated a great deal, perhaps too
much for one man in one lifetime, and he did not live to see the work through the press. The work, therefore, is sloppy. It contains a
large number of mistakes ranging from slips of the pen and typographical errors to flat out mistranslations. But the main problem lies
some place in between--virtually no passage is free from imprecision resulting from the combination of Scott's haste and his lack of
thorough familiarity with the technical terminology and legal principles with which the jurists dealt.

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Unlike some teachers of Roman law, I did not think that Scott's translation was so bad that students should not be told of its
existence. It was there; I told them about it; they used it, and we wished there were something better. Whenever a given text was
available in someone else's translation, I insisted that the students use that translation. When they did use Scott, I had to spend a
great deal of time in class correcting misapprehensions. In short, Scott was better than nothing, but it was in no way satisfactory.

Thus, we needed a new translation of the Digest. Translating the Digest, however, is a formidable task. Translation is always
difficult. Words do not carry the same connotations in one language as they do in another. Syntax that is perfectly normal and
important to convey meaning in one language may be awkward or impossible in another. A style of writing in one language may not
be replicable in another, or when replicated, it may carry a quite different meaning from what is conveyed by the original. In the case
of literary texts, however, there is at least an agreed-upon starting point: The translator is to try to convey as much of the meaning of
the author of the original text as can be done in another language. Where the original "won't go"' into the translator's language, the
translator must make choices depending on what characteristics of the passage he thinks most important for conveying the original
author's thought. The choices will be difficult, and in some cases the translator may never capture the full import of a passage, but at
least he has the lodestar of the original author's meaning to guide him.

The translator of the Digest, however, in addition to all the normal difficulties of translation, does not have this lodestar to guide him.
If the translator views the Digest as a collection of extracts about classical Roman law, then he will try to capture what he thinks the
original text said or meant. If the translator views the text as reflecting the law of Justinian's time, he will try to capture the meaning
of the compilers. Similarly, if he views the text basically as a work that was used as a source of law and of study in the West, long
after Justinian, then he will try to capture the received understanding of the text in later times.

The possibilities of shading the translation in the direction of one or another meaning are great. The Digest is a cryptic text. The
juristic style of writing Latin, in contrast to other forms of literary Latin, tends to compression. In addition, because the compilers
were told to eliminate prolixity, an already quite compressed style was made more so in the interest of brevity. The vocabulary of the
Digest is another source of ambiguity. Juristic Latin has a large technical vocabulary that consists not only of technical legal terms
(which have no equivalents in many other languages, including English), but also of peculiarly juristic usages of quite standard Latin
words. A technical rendering of such words will lose the flavor of the normal word, but a non technical rendering will lack the
precision of the juristic usage. Finally, the Digest is a collection of extracts. Passages that probably made perfectly good sense in
their original context are in many instances difficult to translate because the compilers took them out of context.

Translating the Digest, then, is somewhat like translating the Bible. The text can be understood and used in so many ways that one
really needs different translations suited for different purposes. In the case of the Bible, a number of translations are available, so
that the reader can select the one best suited for his purposes and can compare translations in cases of doubt. No translation
tradition exists for the Digest, however. Unless the translator wishes to choose a particular approach in advance (and thus
automatically frustrate the purposes of at least some readers), the best all-purpose translation would, again, seem to be a strictly
literal one. The translator must be aware of the various meanings that have been ascribed to the text and then give a rendering that,
within the limits of accuracy and those of the English language, opens the way to every possible interpretation.

This literal approach will serve the purposes of many readers, but not all. The reader who is sophisticated in interpreting the Digest
is looking for passages that don't quite hang together, for peculiar words, and for specific technical terminology (which must,
therefore, be left in the original language). All of these are clues to interpretation, clues for the reconstructive enterprise in which he
is engaged. Whatever this reader's purpose in examining the Digest, the more literal the translation, the better it is for the reader
prepared to do his own interpretation.

For the reader at the middle level of sophistication, a literal translation is also the most satisfactory. Such a reader may not be able
to interpret the Digest texts on his own, but he will know that there are considerable problems with their interpretation. He will also
know that many standard handbooks attempt to restate the classical private law, that some do the same for the law of Justinian's
time, and that the Roman law of the medieval and early modern periods has at least some buoys in largely uncharted waters. If he
does not fully understand the translated text, he will at least know that the reason is that the text cannot be fully understood standing
by itself.

On the other hand, the reader who is unsophisticated about the problems of interpreting the Digest probably will find a literal
translation--one that will help the other two types of readers--more difficult than he can take. Such a reader will not know that the
text is difficult because it is difficult and will attribute his inability to understand what is being said to the translator's incompetence or
perversity.

The ideal translation, then, differs depending on the translator's audience. The difference depends neither on the reader's level of
sophistication with Latin nor on his purpose in examining the text, for at all levels of Latin sophistication and for most purposes, the
reader is best served by a literal translation. Rather, the difference depends on the reader's level of legal sophistication. Whereas
the legally unsophisticated reader will get little out of a literal translation, the more sophisticated reader will get just what he wants
and needs. Again, the ideal would be to have different translations for the different readers; but if there is to be only one translation,
a scrupulously literal and accurate translation would probably serve the purposes of more readers than any other.

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The deficiencies of the Scott translation suggested the need for a new English translation of the Digest, despite the formidable
difficulties entailed. We should therefore welcome the new translation. Professor Watson and his group possess just those qualities
that Scott lacked: familiarity with the technical vocabulary and scholarship of Roman law. The translation they have produced is a
vast improvement over Scott's work. It is also a handsome set of books. A reprint of Mommsen's great critical edition, from which the
translation is taken, appears on the facing page, allowing one to check the translation against the original (or vice versa)
immediately. The republication of the Mommsen edition is itself a boon even without the new translation, because Mommsen is
otherwise difficult to obtain. We can now retire that part of The Civil Law that deals with the Digest (alas, we cannot do the same for
the Code or the Novels), for it has been definitively replaced by the new translation.

We must ask, however, how this translation measures up against what might have been done and how these translators resolved
the fundamental problems with translating the Digest suggested above. What do the translators assume about the reader's
knowledge of Latin and of Roman law? Where it makes a difference, are we given the jurists' law, that of Justinian, or that of the
medieval and early modern commentators? And how has the translation dealt with the problem of interpolated texts?

Unfortunately, these questions do not have simple answers. The new translation of the Digest was done by a committee. The
principles of translation remained largely with the individual members of the committee. No one exercised overall editorial control,
except a minimal control to ensure that a relatively few technical terms were consistently translated and that mistranslations did not
occur. How successful this last control was only time will tell. I do not pretend to have read the whole work, much less to have
compared the whole work to the original. I have, however, checked a number of passages at random, read through a number of
titles with which I am familiar, and examined a few titles painstakingly. The results are impressive: There are very few of what I
would regard as mistranslations, far fewer than in Scott's work, and those passages that I think are mistranslated are not egregious
errors. In these cases, I can usually hear the translator making a plausible argument in defense of the translation.

2.1.11 Glossators and Commentators: Irnerius (died in 1125), a professor of grammar at Bologna, studied the Digest intensely
and became the founder of a new jurisprudence. His pupils were Martinus, Bulgarus, Jacobus, and Hugo. These jurists are known
as Glossators. They wrote short comments on the Digest in marginal notes (glosssae). Their purpose was to eliminate apparent
contradictions in the text of the Digest. Their contribution to the legal literature was titled Summae or Distinctiones. The last
glossator, Accursius, published a Glossa Ordinaria incorporating the accumulated doctrine of his predecessors. The glossators laid
the foundation for a better understanding of the Justinian legislation by subsequent jurists. Their treatment of the law was purely
academic and the living law was completely neglected. The Corpus Juris Civilis came to be regarded as the Ratio Scripta (written
reason) and as the law in force in the Holy Roman Empire.

New legal scholarship emerged in Perugia (13 th to 15th century). Bartolus and Baldus published coherent treatises on Roman law in
combination with the study of contemporary statutes and Canon law. These jurists and their pupils are known as the Post-glossators
or Commentators. They placed law on a truly scientific basis and founded the modern legal science. The fields of commercial law,
criminal law, and law of conflicts, attracted the attention of the post-glossators and were elevated into the positions of independent
branches of law.

Glossators and commentator are characterized by a typical medieval way of

thinking. They lacked historical sense; they ignored the historical fact of interpolations, and regarded Roman law as
eternal truth. Their main concern was the harmonization of conflicting passages by the application of hair-splitting
techniques. Yet, they are the founders of the new legal science.

2.1.12 Humanists: A humanist movement spread throughout Europe in the seventeenth century. The founders of
this movement were mostly Italian and French jurists at the University of Bourges (Jacques Cujas, surnamed
Gujacius, 1522-90; Hugo Donneau, surnamed Donnelus, 1527-91). The humanists exhibited an overwhelming
interest in classical antiquity and proceeded to the reconstruction of the ancient Roman legal system with the help of
original manuscripts and Byzantine authorities. They were philosophically inclined and in their analysis of the law
applied juridical methods of interpretation rather than scholastic approaches. The humanists, by stressing the period
of evolution of the Roman law, laid the ground for historical research. But the Justinian legislation obscured the law of
ancient Rome and the living law was neglected. The “elegant jurisprudence” of this school remained a purely
intellectual phenomenon.

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Humanism failed in Germany and Italy. The authority of the commentators was deeply rooted and Roman law was
actually applied as expounded by these jurists. Thus there was need for practical books on Roman law rather than
interest in intellectual acrobatics. The Parlements (superior courts) in France shaped the law on a practical basis. In
Germany, courts and writers developed the usus modernus Pandectarum (modern use of the Pandects).

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2.1.13 Natural Law School: Expounders of a revived natural law (Hugo Grotius, 1583-1645, Puffendorf,
Thomassius), displayed a critical attitude toward positive law. Roman law came to be regarded as the positive law of
ancient Rome. Natural law was defined as a body of principles underlying human nature and discoverable by the
exercise of Reason. Emphasis was focused on ancient Greek philosophy, certain principles of the Roman law, and
on the writings of St. Thomas Aquinas and St. Augustine. Eventually, the movement led to the growth of Protestant
rationalism. Arguments drawn from the interaction of jus civile and jus honorarium necessitated study of Roman law
in depth and helped to preserve Romanist thinking. Natural law doctrine became a closed system based on rational
grounds; thus it led to the idea of codification.

2.1.14 Historical school (Pandectists): According to the doctrine of the historical school (Gustav Hugo, 1764-1844;
Savigny, 1779-1861), law is the product of the spirit of the people. It is not a revelation of eternal truth but the result of
a gradual evolution in accordance with social facts. Ironically, the followers of the historical school devoted their
efforts to the reconstruction of Roman law and to the discovery of its true character in all stages of development. A
subdued antinomy (the past v. the present) is apparent.

The historical school is credited with the production of systematic treatises on Roman law. The lasting contribution of
the school is the development of generalizations, which prove helpful in the reconstruction of ancient legal systems
and for the understanding of contemporary civil law. Its dogma led to comparative research, reform, and modern
codifications.

2.1.15 Revival of Roman law

Henry Mather, The Medieval Revival of Roman Law: Implications for Contemporary Legal Education, Catholic
Lawyer (2002)

Legal systems have often borrowed laws or ideas from other legal systems. For example, Solon's laws for Athens in
the sixth century B.C. were influenced by the legal codes of other Greek city states. Much of the English Statute of
Frauds of 1677 was copied from the French Ordonnance de Moulins. The 1960 Civil Code of South Korea borrowed
extensively from German law. Perhaps the most momentous borrowing occurred when European lawyers
transplanted into medieval society the ancient Roman law contained in Justinian's Corpus Juris Civilis. This article
deals with the medieval revival of Roman law. Part I provides a brief historical survey of the revival. Part II attempts to
identify some of the factors that made the revival successful in the sense that it brought about vast improvements in
the law. Part III suggests that these same factors can help us improve our American law, but only if we make
substantial reforms in legal education.

A Brief History of the Medieval Revival of Roman Law in Western Europe-Our historical sketch focuses on the period
from the middle of the eleventh century to the end of the fourteenth century. Law in the Mid-Eleventh Century -In the
mid-eleventh century, Europe had no written, organized, and comprehensive legal system. Law was largely a matter
of social custom, which is mainly unwritten. Even the written law codes were primitive. They consisted largely of
penalties for various forms of violence and contained little contract, commercial, or property law.

Good examples are found in the written codes promulgated by various Lombard kings from 643 to 755 A.D. and still
in effect in mid-eleventh century Italy. The code issued by King Rothair (or Rothari) in 643 A.D. contains 388 titles.
Titles 1 through 152 and titles 277 through 358 prescribe in very detail penalties for offenses we would characterize
as crimes or torts. Title 48, for example, sets the penalty for gouging out a freeman's eye, while title 50 prescribes a
different penalty for cutting off a freeman's lip. The penalty for cutting off a freeman's index finger (title 64) is sixteen
solidi, whereas the penalty for cutting off a freeman's middle finger (title 65) is only five solidi. Rothair's code contains
no contract or commercial law except for titles 245 through 252, which deal with the pledge of collateral for a debt

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(what we would call a possessory security interest). A creditor could not take a pledge of collateral until he had three
times demanded payment and had not been paid. This is not the kind of law that stimulates secured lending. The
Laws of King Grimwald (668 A.D.) contain no contract or commercial law. The Laws of King Liutprand (713-35 A.D.)
contain 153 titles; of these, twelve deal with pledges of collateral, and only three deal with other commercial matters.
The Laws of King Ratchis (745, 746 A.D.) contain fourteen titles; two of these titles provide evidentiary rules
concerning pledges and sales. The Laws of King Aistulf (750, 755 A.D.) contain no contract or commercial law.

Throughout Western Europe in the eleventh century, many people were governed by written law codes issued by
Germanic rulers, but based on ancient Roman law. Some of these codes were a bit more sophisticated than the
Lombard codes. In the Germanic kingdoms that replaced the Western Roman Empire in the fifth century, Roman law
survived to some extent and was incorporated into written codes; however, what survived was a small part of the
legal system developed by the ancient Romans, and even that small part was retained in a crude and simplified form.
Historians thus refer to it as "vulgar Roman law."

A good example of vulgar Roman law is the Lex Romana Visigothorum (or "Breviarium") promulgated in 506 A.D. by
Alaric II, King of the Visigoths. This code was probably intended only for the Visigoths' Roman subjects but may have
been applied to Visigoths as well. Either way, the code governed a vast majority of the people in Visigothic territory,
as the Visigoths were far outnumbered by the Romans. The Breviarium was based largely on the Roman Theodosian
Code, a collection, completed in 438 A.D., of imperial laws issued since the time of Constantine and concerned to a
large extent with matters of imperial government rather than private law such as contract or commercial law. The
Breviarium also included some writings of the Roman jurist and legal scholar Paul, and an abridgment of Gaius'
Institutes, a hornbook for Roman law students. Therefore, the Breviarium was an abridgment of an abridgment. Peter
Stein suggests that the Breviarium became the main source of Roman law in Western Europe from the sixth century
to the eleventh.

The Germanic codes, including those based on vulgar Roman law, were primitive, partly because they were compiled
by lawmakers who had little legal learning, and partly because these lawmakers had very limited aims. They
assumed that the purposes of law were merely to prevent violence and enforce customary social practices. Some
New Questions-By the twelfth century, assumptions about the purposes of law had changed profoundly. A new class
of intellectuals began to think that new social practices could be developed, practices that would not only prevent
violence, but also give ordinary men and women the opportunity to live truly good lives in a secular world outside the
monasteries. These new intellectuals began to ask three questions: Philosophically, what kind of human can live a
good life in this world? Educationally, what kind of education does he need? Jurisprudentially, what kind of laws does
he need? Because these were the questions asked, the major innovations of the "Renaissance of the Twelfth
Century" tended to be in the fields of philosophy, education, and law.

The third inquiry, regarding the kind of law that was needed, was easily answered. Medieval polities needed law
written in Latin and comprehensive enough to regulate all the various aspects of societies that were becoming
increasingly complex. A special need existed for law that could facilitate contractual exchange and thus promote a
commercial revolution, already underway, that promised to enhance the material basis of a good life. And because
the good life required the exercise of moral virtue, medieval societies needed law that enforced the virtues of good
faith and fair dealing in private transactions.

Justinian's Corpus Juris Civilis-One and only one existing body of law could meet these needs. Justinian's Corpus
Juris Civilis was the obvious choice for the wholesale legal borrowing that was necessary, since there was neither
enough time nor enough legal imagination to construct complete legal systems from the ground up. The Corpus Juris
Civilis is a vast compilation of ancient Roman legal materials, arranged and somewhat modified by a group of
Byzantine professors and lawyers appointed by Emperor Justinian. Work on the Corpus Juris began in 528 A.D. and
was largely completed by 534 A.D.. The Corpus Juris thus provided a picture of Roman law as seen through a Greek
lens many years after the demise of the Western Roman Empire. The most important part of the Corpus Juris is the
Digest, which contains scholarly commentary by Roman jurists and supplies the most detailed explication of Roman

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private law. Most of this commentary comes from the period 100-250 A.D. and presents various and often conflicting
positions on each legal issue. The Corpus Juris also contains: the Institutes, a hornbook for students based partly on
Gaius' Institutes; the Code, which includes imperial statutes and other pronouncements of Roman emperors; and the
Novels, which added imperial pronouncements issued after the publication of the Code.

In 554 A.D., after Justinian took Italy from the Ostrogoths, he put his Corpus Juris into force as the law of Italy. After
the Lombards ousted the Byzantines, parts of the Corpus Juris were still used, but the Digest disappeared.
Fortunately, the Digest was rediscovered in Italy in the late eleventh century; Justinian's complete Corpus Juris was
now available to European lawmakers, and it met their most important needs. It contained the world's most detailed
and comprehensive private law written in Latin. It provided a relatively sophisticated body of contract law and
enforced the moral virtues of good faith and fair dealing.

An examination of Roman contract law reveals some serious defects, but also indicates why contract law has been
the most highly regarded part of Roman law. The Romans had no general theory of contract. To be enforceable, an
agreement had to fit squarely within one of a few contract types. The stipulatio was an oral contract formed when
party A asked party B whether he would promise to do something and B immediately responded that he did so
promise. Stipulatio could be used to promise anything not prohibited by law. However, it had limited usefulness for
commercial exchange contracts. In the first place, the promise had to be made in a face-to-face meeting of the
parties, not in a letter delivered to a distant party. Secondly, it was difficult and cumbersome to use stipulatio for
bilateral exchange contracts. Each party had to make a very detailed stipulation, not only stating all of his duties, but
also stating how those duties were conditional upon the other party's performance.

Each of the four "real" contracts were formed informally but only when one party had delivered some tangible
property to the other. Of these real contracts, only pignus (pledge) had commercial importance. A debtor transferred
possession of property to his creditor as collateral security for the debt. If the debtor paid the debt, the creditor was
obligated to return the pledged property. If the debt was not paid, the creditor could sell the collateral, but was
obligated to pay the debtor any surplus of the sale proceeds over the amount of indebtedness. The three other real
contracts involved gratuitous transactions, usually between friends.

In Roman contract law, the four "consensual" contracts were emptio venditio (sale), locatio conductio (hire), societas
(partnership), and mandatum (mandate). Unlike the stipulatio, the consensual contracts required mutual consent but
no particular formal expression. Unlike the real contracts, the consensual contracts could be purely executory, with no
prior delivery. In all consensual contracts, both parties were obligated to act in good faith in every aspect of the
transaction. There could be no duress, fraudulent misrepresentation, or even fraudulent nondisclosure. The mandate
contract was formed if A gratuitously promised B, usually a friend of A's, to execute a commission given to him by B.
This contract was not useful in commerce because A's performance of the commission was gratuitous and not for a
reward, and because A lacked any agency power to create binding contracts between B and third parties. Nor was
the societas partnership contract commercially useful. Among other things, a partner lacked the agency power to bind
his partners to contracts he formed with third parties, and the partners owed each other only a minimum of
obligations. The emptio venditio (sale) was used for sales of specific goods or real property in exchange for a money
price and was a contract of great commercial importance. The contract included an implied warranty by the seller that
the buyer would have quiet enjoyment of the thing being purchased (that the buyer would not be evicted by someone
with a better title). Various implied warranties by the seller also existed to protect the buyer in the event of latent
qualitative defects in the thing being purchased. Protection against mistakes in contracting was provided by a
complicated set of rules that made a sales contract unenforceable if there was some "fundamental" mistake.
Fundamental mistakes included mutual misunderstanding concerning the specific thing to be sold and mutual mistake
about the materials with which the thing was made, but it was not always clear which other mistakes counted as
fundamental.

Like the contract for sale, locatio conductio (hire) was commercially useful. It was a versatile contract that could be
used for leases of goods or real estate, service contracts, and virtually any bilateral agreement involving a money

47
price, so long as it was not a sale. The Law School at Bologna-Justinian's Corpus Juris, with its complex body of
contract law, could not be used to improve European legal systems until it was understood. This long process of
understanding began in earnest when a man called Irnerius began teaching the entire Corpus Juris at Bologna near
the end of the eleventh century. Although Irnerius was merely a private teacher and not an employee of any
educational institution, he soon began to attract students from all over Europe.

In the twelfth and thirteenth centuries, the private law schools of Irnerius and his early successors at Bologna were
transformed into an institutionalized law school that was the leading center of legal studies in Europe. The leadership
of Bologna was due in large part to the fact that it taught Justinian's Corpus Juris, with increasing emphasis on the
Digest, the part of the Corpus Juris that was the most fruitful source of legal ideas. The institutionalized law school at
Bologna had one especially interesting feature. Until it was taken over by the city in the late thirteenth or early
fourteenth century, the University of Bologna was a student corporation, an amalgamation of student guilds, that
controlled the professors. Each time a professor was late for class or ended class before the closing bell, the students
fined him. If he did not cover all the material in the syllabus by the end of the term, he was again fined by the
students.

By the end of the twelfth century, the law school at Bologna taught both Roman law and canon law and had an
enrollment of at least 1000 students. Yet the school taught little, if any, royal law, municipal law, customary law, or
other primary source of local positive law. What the school taught was legal method and an ideal law (Roman law and
canon law) containing general principles that could be applied to any area of law in any part of Europe. Apparently,
the students flocked to Bologna because they knew what they needed in order to participate in the development of
new legal systems back home. There is thus justification for Hastings Rashdall's claim that in many respects, the
work of the law school at Bologna "represents the most brilliant achievement of the intellect of medieval Europe." The
Bolognese model was copied by new law schools that sprang up in the twelfth century (Modena, Pisa, and
Montpelier, for example) and thirteenth century (notably Naples, Toulouse, Orléans, and Salamanca). Like Bologna,
these new schools taught Roman law and canon law but deemphasized or ignored local law.

Glossators, Commentators, and Canonists-From the early twelfth century to the middle of the thirteenth century, legal
scholarship was dominated by the "Glossators," Irnerius and the teacher-scholars who succeeded him at Bologna. In
addition to Irnerius, some of the most important Glossators were Bulgarus, Martinus, Bassianus, Placentinus, Azo,
and Accursius. The Glossators focused on mastering the text of Justinian's Corpus Juris, an important first step that
had to be taken before the Corpus Juris could be successfully used by medieval lawmakers. The Glossators
intensively studied and explained each fragment in the text, interpreting difficult passages, providing cross-references
to other fragments dealing with the same issue, identifying conflicts between different fragments, and trying to
reconcile such conflicts. All of this was done in glosses (annotations) written between the lines of a Corpus Juris
manuscript or in its margins or, when no space was left in the manuscript book, on separate pieces of paper.

From the late thirteenth century to the end of the fifteenth century, the most important legal scholars were the
"Commentators" (or "Post-Glossators"), a group who taught at various law schools, not just Bologna, and included
influential scholars such as Cinus de Pistoia, Bartolus de Saxoferrato, and Baldus de Ubaldis. The Commentators
wrote broad and systematic commentaries that attempted to apply Roman law to the needs of medieval society in a
practical way. They thus took a significant step beyond the work of the Glossators, who had chiefly been concerned
with understanding and explicating Roman law. The Commentators studied customary, feudal, royal, and municipal
law and were aware of the gaps in these systems. Many of these gap issues also had not been addressed in
Justinian's Corpus Juris. The Commentators therefore derived general principles from the Corpus Juris, canon law,
and the works of natural law philosophers such as Aristotle and Thomas Aquinas, and then used these principles to
suggest how the gaps in contemporary positive law should be filled in order to make European legal systems not only
more complete but also more equitable. The major achievement of the Commentators was showing how Roman law,
canon law, and moral philosophy could be used to improve European legal systems.

The accomplishments of the canonists were as significant as the work of the Glossators and Commentators. In
medieval Europe, canon law was important because the Church courts asserted a wide jurisdiction over matters we

48
now regard as secular. This jurisdiction extended to marriage and the other sacraments, and to anything closely
related to sin or the welfare of human souls; it thus included marriage, the termination of marriage, the legitimacy of
offspring, the validity of testamentary wills, contracts made under oath or requiring good faith, usury, the manipulation
of commercial markets, defamation, perjury, homicide, theft, sexual misconduct, and the lawful times and conditions
of work. In the late eleventh century, Popes Gregory VII and Urban II had issued many new canons in their attempt to
reform the Western Church, and by 1100 A.D. canon law consisted of a greatly enlarged but disorganized and
unsystematic mass of materials taken from the Bible, works of the early Church Fathers, canons enacted by Church
councils, and papal decretals (letters announcing papal decisions on actual cases). The needed systematization was
provided by Gratian, a monk who taught canon law at the monastery of San Felice in Bologna. About 1140 A.D., he
published his Concordance of Discordant Canons, which became known as the "Decretum" and was the first truly
scholarly study of canon law. In this work, Gratian reorganized the canonical authorities and added his own
comments, many of which were drawn from Roman law. He also noted apparent conflicts in the authorities and used
a dialectical method in trying to reconcile them. Gratian's Decretum served as the basic guide to canon law for many
centuries.

After the middle of the twelfth century, canon law scholars and Roman law scholars worked in close cooperation.
Canon law was strongly influenced by Roman law. The procedural rules for ecclesiastical courts were based in large
part on Justinian's Corpus Juris. The canonist concept of marriage as a consensual union, based on mutual affection
and respect, came from Roman law. Canonist doctrine concerning mistake as a ground for nullifying marriage was
partly borrowed from Roman doctrines of mistake in contracts of sale. Canon law also allowed nullification of
marriage contracts made under duress, and the test for duress (consent induced by fear that a "constant" man would
not overcome) was taken from Justinian's Digest. In turn, Roman law scholars borrowed ideas from the canon law.
For example, canon law was the major inspiration for the gradually successful attempts by the Glossators and
Commentators to liberalize Roman law so that contracts could be enforced even when they did not fit within any of
the contract types recognized by classical Roman law.

Spread of the Ius Commune-By the fourteenth century, the combination of Roman law and canon law had become
known as the ius commune and had spread throughout a good part of Western Europe. The reception of the ius
commune was, of course, facilitated by the fact that it was written in Latin, the common language of educated
Europeans. Equally important was the legal education of the men who filled new positions as judges, advocates, and
assistants to secular and ecclesiastical rulers; most of these new legal professionals had been trained in law schools
that concentrated on Roman and canon law. The ius commune was thus the law that the new lawmakers knew best.

Canon law had an easy victory. It was the primary source of law in Church courts throughout all of Catholic Europe,
including the British Isles. The spread of the new Roman law based on Justinian's Corpus Juris was slower, and the
pace varied from one region to another. The new Roman law was quickly received in Italy, the southern part of
France, and the Iberian peninsula. In the northern part of France, customary law continued to prevail, but by the
thirteenth century, Roman law had become an important supplement. In the German principalities of the Holy Roman
Empire, Roman law was not received to any great extent until the late fifteenth and early sixteenth centuries. But
when it occurred, the reception was massive. In Scotland, Roman law was established as the primary gap filler in the
sixteenth century. However, Roman law never really took hold in the English royal courts (except for chancery and
admiralty courts).

We must remember that nowhere in late medieval Europe were Roman law and canon law the only kinds of law
being used. In each geographical region, there were a number of legal systems, each with its own law and its own
courts: canon law, feudal law, manorial law, royal law, municipal law, and the law merchant. And everywhere, social
custom was still a recognized source of law. The primary role of the ius commune was to fill the huge gaps in the
local legal systems. Roman law and canon law were also used in interpreting existing local law, and provided
standards by which courts determined whether a local custom was unreasonable and thus legally invalid. In these
ways the ius commune gradually shaped the legal systems that ruled most of Western Europe until they were
replaced by the massive codifications of the eighteenth and nineteenth centuries.

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Reasons for the Success of the Revival-Why was the medieval revival of Roman law successful in the sense that it
substantially enhanced the quantity and quality of law in Western Europe? The following summary will provide a
partial answer to our question and will focus on factors that have important implications for contemporary legal
education. The medieval revival of Roman law involved a massive transplant into medieval societies of a legal system
that had been developed in ancient times before the fall of the Western Roman Empire. We will therefore begin by
identifying some factors that are essential for the success of any legal transplanting or "borrowing" enterprise.

For borrowing to even occur, lawmakers who work within one legal system must be aware of and receptive to legal
ideas and intellectual concepts that come from outside that system (factor 1). The external ideas and concepts might
be found in the contemporary legal system of a foreign country. They might be found in the legal history, the legal
past, of the borrowing system itself. They might be found in some non-legal discipline such as philosophy,
economics, or sociology. Whatever their source, these external ideas and concepts must be studied and understood
before they can be truly borrowed and not caricatured (factor 2).

If the enterprise of borrowing is to succeed in improving the borrowers' legal system, some additional factors are
required. The ideas being borrowed will probably have to be modified somewhat if they are to fit the borrowing legal
system and its social and cultural context. The borrowers will thus have to perform a critical analysis of the external
ideas, identify their strengths and weaknesses and eliminate, or at least mitigate, the weaknesses (factor 3). In order
to determine what is a strength or weakness in the external ideas, the borrowers must consider contemporary social
and economic circumstances in their own society (factor 4). They must also ask whether a particular external idea
would promote the purposes or goals of their own legal system (factor 5).

Finally, legal education will have to be structured so that future generations of lawyers working within the borrowing
legal system will be able to use the newly borrowed ideas--and ideas that may be suitable for future borrowing--in
ways that improve that legal system (factor 6). Law schools must therefore train their students to do all the things
involved in factors 1 through 5. In the remainder of Part II, we will see that each of the factors necessary for a
successful legal transplant was present in the medieval revival of Roman law. Indeed, all six factors were present to a
high degree.

Receptive Awareness of Legal History and Comparative Law (Factor 1) Factor 1 in our list of requirements for
successful borrowing is a receptive awareness of ideas that come from outside the legal system that is to engage in
borrowing. The medieval revival began with an awareness of legal history. With the rediscovery of Justinian's Digest
in the late eleventh century, the entire Corpus Juris became available to legal scholars. Almost immediately, Irnerius
and his Glossator successors at Bologna made their students and other law professors aware of Justinian's
compilation of ancient Roman law, a body of law that had been developed more than eight centuries earlier, and after
the fall of the Western Roman Empire had been applied only in "vulgar" and mutilated form.

Medieval lawyers not only borrowed materials from a historically prior legal system, they also engaged in what we
would call comparative law, the study of contemporary legal developments in other countries and other legal systems.
Law professors and lawmakers throughout Europe borrowed ideas from Italian Commentators, such as Bartolus de
Saxoferrato and Baldus de Ubaldis. The Italian Commentator, Cinus de Pistoia, was heavily influenced by the French
legal scholars, Jacques de Révigny and Pierre de Belleperche. We have already seen that secular courts and
professors of Roman law borrowed ideas from canon lawyers, who in turn derived much of their canon law from
Justinian's Corpus Juris.

Receptive Awareness of Other Disciplines: Teleological Natural Law Philosophy (Factors 1 and 5) -Factor 1 in our list
of requirements for successful borrowing can be satisfied by a receptive awareness of ideas found in non-legal
disciplines. Medieval lawyers were in touch with other disciplines and borrowed ideas from them, especially from
philosophy. Lawyers were particularly interested in moral and political philosophy, and here the most influential

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tradition was natural law theory. Medieval notions of natural law were drawn from Cicero, Justinian's Digest, Aristotle,
and Aquinas. A key idea found in all of these sources is that human conduct should be regulated by norms that are
both derived by means of rational reason and consistent with human nature. Although natural law theory is
rationalistic, it is also aware of both the potentialities and limitations of the human animal. This rational but not unduly
optimistic approach produced helpful answers to all three of the questions posed by twelfth century intellectuals:
What kind of human can live a good life in this world? What kind of education does he need? What kind of laws does
he need?

Natural law theory provided a teleological answer to the first question. In natural law teleology, everything is
evaluated according to how well it fulfills its telos, its end or purpose. Aristotle had said that the natural end of a
human being was to live well, rationally, and virtuously. Thus, the kind of human who can live a good life in this world
is a human who lives rationally and virtuously. Because the purpose of educational institutions is to enable people to
live good lives, natural law teleology provided an answer to the second question: humans need education that
teaches them how to live rationally and virtuously.

Natural law theory gave a similar answer to the third question. Humans need laws that help them live good lives. The
purpose of positive law, according to Aquinas, is to facilitate good lives for all citizens (the "Common Good"). The law
should therefore help people to live rationally and virtuously. Legal rules and penalties can perform a moral education
function that supplements familial training by teaching citizens to treat others fairly, without coercion, deceit, or
exploitation. In suggesting that the purpose of law was to help people live good lives, natural law theory provided
medieval lawmakers with a teleological criterion that could be used in evaluating the various rules of ancient Roman
law. Medieval lawmakers were thus able to satisfy factor 5 in our list of requirements for successful borrowing:
lawmakers in the borrowing system must judge particular ideas in the borrowed system by asking which of these
ideas would promote the purposes or goals of their own legal system.

The teleological approach of natural law theory was used not only to identify the general purposes of law, but to
resolve particular legal issues as well. In the field of contract law, the obligations of parties to a contract depended on
the immediate end or purpose of the type of contract the parties formed. The purposes of the marriage contract, for
example, were the good of the offspring and the mutually beneficial association of the two spouses. Therefore, the
contractual duties of the spouses were determined by these purposes. A second example also involves contract law.
The Commentators Bartolus de Saxoferrato and Baldus de Ubaldis suggested that, although a sales contract cannot
be avoided for mistake about the "accidental" form of the thing to be sold, such a contract can be avoided for mistake
about the "substantial" form of the thing, and the substance (or essence) of a thing may depend on the human
purpose it serves.

Natural law theory was also influential in the development of the method by which lawmakers derived legal rules from
general principles. The typical natural law method was to begin with very general moral principles, derive more
specific principles from them, and finally arrive at rules to be applied to particular situations. Canon lawyers readily
adopted this method and began searching for general moral principles that could be applied in all areas of law. Soon,
both canon law scholars and Roman law scholars were busy identifying significant principles and teaching them to
their students.

Some of these general principles were found in book 50 title 17 of Justinian's Digest. They include important
principles that are still applied today: in interpreting testamentary wills, we should try to carry out the wishes of the
testator; no one can change his mind to another person's disadvantage (the estoppel principle); nothing is so contrary
to consent as force or duress; no one should be allowed to profit from his own wrongdoing; there is no obligation to
do something that is impossible; no one should become richer through another person's loss (the unjust enrichment
principle). Digest 50.17 was a favorite subject of the Glossators and the Commentators, who wrote extensively about
how the Roman principles might be interpreted and applied in order to improve positive law.

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In developing specific legal rules, medieval lawmakers used general principles flexibly and cautiously. Aquinas wisely
observed that as we work our way down from general principles toward specific rules, we descend into levels of
greater particularity and contingency, and our reasoning becomes more fallible, more prone to error. For example,
goods that have been deposited for safekeeping should, as a general rule, be returned. But this rule should not be
applied in a case where the depositor wants his goods back so that he can use them to attack his own country. The
canon law regarding usury provides an example of how medieval lawmakers used general principles flexibly and
recognized the fallibility of legal rules. Canon law had long held that loaning money at interest was sinful and illegal.
Gradually, canon lawyers realized that lending was necessary for continued economic expansion, and that lenders
deserved compensation for the opportunity costs they incurred when they loaned money they could have spent on
themselves or their own businesses. By the end of the medieval period, canon law allowed lenders to charge interest,
so long as it was not excessive.

The impact of natural law philosophy on medieval law was profound. Due to natural law theory, lawyers were
constantly aware of the moral purposes of law. They used natural law ideas when they interpreted Roman law. They
used natural law principles to develop new legal rules that could fill gaps, and to identify existing rules that were
unjust and thus candidates for elimination or alteration. The contribution of natural law philosophy is well summarized
by Harold Berman:

Natural law was not an ideal law standing outside the existing legal systems but rather the morality of the law itself
standing within the existing legal systems It was because of the programmatic or political character of the law,
represented particularly by that part of it that was called natural law, that thousands of young men went annually to
the universities to study law in order to prepare themselves for political careers. These were among the most
intelligent and ambitious young men of Europe. They were taught the positive law and the techniques of applying it,
but they were also taught the natural law, the law that was to be. [The impulse for legal growth and reform] was
manifested in the continuity of the legal profession, as successive generations of lawyers were trained in the
universities and went out into the ecclesiastical and secular chanceries and courts to practice what they had been
taught.

Intensive Study of External Ideas (Factor 2)-External ideas from legal history, comparative legal studies, or non-legal
disciplines must be carefully studied and understood before they can be usefully borrowed by a legal system. This
was factor 2 in our list of requirements for successful borrowing. Medieval lawyers undoubtedly devoted much effort
to the study of ancient Roman law, contemporary legal developments in foreign countries, and natural law
philosophy. The study of Roman law was especially intensive. We noted in Part I that the Bolognese Glossators who
dominated legal scholarship from the early twelfth century to the middle of the next century were devoted to
mastering each fragment in the text of Justinian's Corpus Juris. Their study must have been intensive; it was
continuous, not sporadic, and it took about 150 years to complete.

Critical Analysis of External Ideas (Factor 3)-If external ideas are to be successfully borrowed by a legal system, they
must be critically analyzed so that their weaknesses can be identified and eliminated. This was factor 3 in our list of
requirements for successful borrowing (Borrowing is not successful if it does not improve the borrowing legal system).

Medieval lawyers analyzed Roman law with a critical and questioning spirit. We will note in section II. F that this spirit
was an important aspect of the "scholastic" method, which dominated medieval intellectual activity. Here, we will
merely mention two examples of this medieval ability to spot weaknesses in Roman law and correct them. In Part I,
we noted that a weakness in Roman contract law was the lack of a general theory of contract that could be applied to
any type of agreement; to even be enforceable, an agreement had to fit squarely within one of a few prescribed
contract types. We also noted in Part I that the medieval Glossators and Commentators, inspired by the canonists,
gradually succeeded in liberalizing Roman law so that contracts could be enforced even when they did not fit within
any of the ancient Roman types. A second example was also previously noted. In our discussion of natural law
philosophy, it was pointed out that the medieval canonists rejected the Roman law's harsh and discriminatory
treatment of poor people and tried to ensure that the poor would not be disadvantaged in Church courts.

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Awareness of Contemporary Social Circumstances and Needs (Factor 4) In order to determine how borrowed ideas
should be modified and adapted to the borrowing legal system, the lawyers of that legal system must consider
contemporary circumstances and needs in their society. This was factor 4 in our list of requirements for successful
borrowing. In Part I, we saw that a major concern of the Commentators was to adapt Roman law to the needs and
circumstances of medieval society. We also noted, in our discussion of natural law theory, that the relaxation of the
canon law prohibition of lending at interest was partly due to a perceived need to stimulate lending in order to assist
economic development.

Legal Education (Factor 6)-For legal borrowing to be successful, law schools serving the borrowing legal system must
educate their students so as to enable future generations of lawyers to use imported ideas in ways that improve that
legal system (factor 6 in our list of requirements for successful borrowing). The ability of medieval lawyers to make
vast improvements in European legal systems was due, in large part, to the quality of legal education. The law
schools provided their graduates with the new legal concepts of Roman law, canon law and, even more importantly,
the intellectual skills and attitudes necessary for socially useful lawyering.

Entering law students were well prepared. To be admitted to law school, a person usually had to have a liberal arts
degree. Obtaining a bachelor of arts degree required four to six years of study. The master of arts degree, a license
to teach arts anywhere in Western Europe, required another two to four years. The arts curriculum emphasized the
"trivium," which consisted of (Latin) grammar, rhetoric, and logic. Other courses included the "quadrivium" of
arithmetic, geometry, astronomy, and music, and (by the middle of the thirteenth century) a healthy dose of
Aristotelian moral philosophy. The beginning law student had thus already been trained to read and write good Latin,
think logically and analytically, and argue persuasively.

The law school course of study consumed from five to ten years, depending on the school and the type of degree
being pursued. A student could obtain a doctorate in civil (Roman) law in seven or eight years, a bachelor's in five. A
bit less time was required for the degrees in canon law. In ten years, one could obtain a joint degree in civil law and
canon law. The curriculum was rigidly fixed. Civil law courses covered Justinian's Corpus Juris; canon law students
studied Gratian's Decretum and subsequent collections of canons. There were no electives. All students pursuing the
same degree took the same courses.

Law school teaching techniques were based on the new "scholastic method," so called because it was the method of
analysis employed by the schoolmen, the professors in various institutions of higher learning. This method, used in
both scholarship and teaching, was already rather fully developed in the twelfth century and made use of both
authority and reason. The analysis began with authoritative texts dealing with a particular question. A civil law
professor might begin with Justinian's Digest; a theology professor was likely to begin with Biblical texts.

Apparent conflicts would then be identified. In order to decide whether two textual passages really conflicted, the
schoolmen would interpret each of them, using reason and hermeneutic techniques that focused on contextual
variables such as time, place, author, and issue. Great efforts were made to harmonize the texts. If they could not be
interpreted as consistent, the schoolmen might reconcile them by means of a reasoned distinction. They would
suggest, for example, that one rule should be applied to marriage contracts while a contrary rule was appropriate for
commercial contracts. If the opposing texts could not be reconciled, schoolmen could either choose one and reject
the other, or reject both of them in favor of a new synthesis. Any proposed solution of the conflict was proposed
because it seemed the best way to promote human well-being, given the ultimate purposes of life and contemporary
circumstances and needs. The criteria for identifying the proper conclusion of the scholastic analysis were thus
teleological.

The spirit of scholastic method was interrogative. Although the schoolmen tried to harmonize authorities so as to
preserve as much of the existing body of authority as possible, each authoritative proposition was questioned and

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open to doubt. Peter Abelard, one of the early developers of scholastic method, asserted that "the first key to wisdom
is called interrogation, diligent and unceasing. By doubting we are led to inquiry; and from inquiry we perceive the
truth." Scholastic method thus involved a ruthless analysis of traditional views. Quoting authority was not a way to
end debate; it was the way to open debate.

Law school teaching exhibited both the form and spirit of scholastic method. In a morning lecture, the professor would
read a portion of the assigned text, read the interpretive glosses to that text, try to resolve apparent conflicts, propose
conclusions, note general principles that could be derived from the text, and raise questions not directly addressed in
the text (for example, how some hypothetical case should be decided). In an afternoon or evening session, the
students and professor would discuss questions that arose from the morning lecture.

In the twelfth century, the "disputation" developed into an important educational device. The disputation was like a
modern moot court, except that anyone present was free to argue and there was no assigned hypothetical fact
situation. The disputation was a debate on a previously announced topic, usually an important contemporary issue
not covered in the Corpus Juris or canon law. Sometimes the disputation was merely a classroom exercise,
sometimes it was a public event in which all students and professors of the university were free to participate. The
designated "disputant," who might be a professor or a student, would begin by stating his position and would then
have to listen to objections raised by the other persons present and respond to these objections. The disputation was,
like the chivalric tournament, a very competitive and dangerous game. Teaching methods in the medieval law schools
helped students acquire the intellectual skills they would need in order to be effective counselors and advocates for
their clients. Law students learned to read legal texts carefully, to be aware of alternative interpretations, to consider
all arguments on both sides of a question, to reason logically, and to argue persuasively.

At the same time, law students acquired intellectual habits that enabled them to contribute to the improvement of
legal systems. They learned to question everything. They developed a critical attitude toward existing authority. They
learned to construct general principles that could be used in fashioning new rules for developing areas of law. And in
learning how to reconcile disparate authorities, they acquired an antidote to oversimplification and extremism; they
learned to appreciate what is valuable in each opposing theory or proposition and construct a synthesis that
preserved those valuable elements. The medieval law students thus learned how subtle and complex our normative
world is. In all these ways, the law schools enabled their graduates to achieve one of the great goals of medieval
civilization: to improve society by improving the law.

Conclusion-The medieval revival of ancient Roman law led to a vast improvement in the legal systems of Western
Europe. What had been rather primitive bodies of law were transformed into modern and comprehensive systems,
enlightened in their moral foundations and sophisticated in their practical details. In large part, this transformation was
due to the skill with which medieval lawyers made careful and critical studies of ideas borrowed from legal history,
comparative law, and philosophy. This skill was achieved by means of the curricular structure and teaching methods
of the medieval law schools.

The Attributes of Law in the Early Legal Systems

Definition of law under the Babylonian legal system:

 Emperor Hammurabi sought to get legitimacy of his Code by invoking the power of God. He presented himself to
his subjects as an agent of God on earth. He advocated that he was an elect of God. He, thus, argued that
whatever he did including the making of his Code was done under the guidance and instruction of God. So
people had to obey the rules in his Code because they were not the expressions of his wish, but commands
revealed to the people by God through him.
 The Emperor chose this basis of legitimacy (acceptability) of his legal system as a whole since he thought that
taking God, as a source of legitimacy was the most powerful of all basis of rule. He selected God as the basis of
his system since he believed that it would be difficult for his subjects to question the power of God.
 In the first place, Emperor Hammurabi easily secured obedience to his laws. In the second place, religion
was accepted as the valid source of laws. Third, the theory of divine power served as the stabilizing

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factor. The fourth effect of the propagation of the divine-origin of laws in Mesopotamia was the empirical
feature of the law, which means laws lacked general principles and coherent arrangements as well as
distinctions and sub-distinctions.
 One factor for the high degree of stability of the system could be the religious basis of the same. Babylonians
attributed the source of law to God; what God made human beings could not change. The second factor could be
the conservative nature of ancient societies. In the third place, the geographical conditions of the area
produced such stability and sense of regularity. Each year, the floods came and inundated the fields so that
their crops would be harvested regularly, and the Mesopotamians desired to reflect such regularity of events in
their social organization, means they desired a stable legal system.
The Greek legal system

 To the Greek, for law to be valid, it had to be tested in light of two cumulative tests: the law should be adopted
by the vote of popular assembly composed of, for example, in the case of Athens, male adult Athenians (the
law so enacted was called positive law) and the law so enacted had to be consistent with the principles of
natural law.
 The Greek, however, faced contradictions between the two criteria. By its nature, positive law was thought to be
particular, mutable and temporal. Positive law means a law created by human beings. Positive law was time and
place specific. Positive law was thus relative to time, place and community. On the other hand, natural law
principles was taken as universal (applicable to all human beings regardless of where they live), eternal (not time
bound) and immutable (not subject to change). Generally, natural law was presented as absolute while positive
law was approached as relative. The contradiction between positive law and natural law lies in these features of
the two. The Greek faced contradiction since they accepted two quite different theories at the same time and
endeavored to implement those theories. Natural law theory of the Greek demanded that the laws be maintained
unchanged while positive law necessitated changes in the laws. In other words, the issue was the tension
between continuity and change.
 The Greek experienced another contradiction. Natural law dictated that all human beings had to be treated
equally while positive law of the Greek allowed the institution of slavery, which rested on the assumption that
some human beings were less equal, in principle, than others.
 They used three methods to ease the contradiction. One approach was to subject their law-making process
to a screening. Any male adult Athenian citizen could initiate laws. These proposed laws would be examined by
a city council. When the city council approved the proposed laws, it passed on to the popular assembly. The
popular assembly was a collection of male adult Athenian citizens, as the Greek believed in direct popular
representation. The second mode of checking the existence of the balance between change and
continuity was taking two possible actions against a citizen who deliberately proposed unjust laws. A
citizen who proposed unjust laws would be condemned, depending on the gravity of the situation, to exile, means
forced to leave the territory of Athens. The second course of action was to allow him to live in his city-state but
his right to participate in the popular assembly would be taken away. The third method of accommodating
change and continuity was the creation of a special body named Nemothia responsible for changing the
positive law whenever the situation required so.
 No one is certain about the justification for invoking the principles of natural law. However, a couple of
speculations may be offered. One is that the Greek were given to philosophical thinking. The other is that the
Greek did not trust the popular will; they were quick to appreciate that human judgment might sometimes fail.
You can say that natural law played the same role in Greek as a constitution of a modern state. In conclusion,
the main feature of the Greek legal system is its philosophical conception.

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The Roman legal system:

 Before 5th BC, Roman law was taken to be divine in origin. In this period, priests applied laws. Priests were
experts in the interpretation and application of laws. Law was religious in character. People living in the city-state
of Rome regarded themselves as passive participants in the legal system for they thought that they had had
nothing to do with the creation, modification and the application of laws. Beginning from the middle of 5 th B.C., in
particular with the creation of the XII Tables, the city-state of Rome secularized its laws. The XII Tables were
one major shift in the Roman legal system. As you have seen above, even with the XII Tables, the Roman legal
system was still empirical in character.
 Between 2nd BC and 2nd AD., the Roman legal system demonstrated another shift: the legal system transformed
itself from being empirical into being technical and ethical.
 The legal system obtained technical basis means that the quality of decisions was enhanced. Lawyers
emerged. The number of commentaries and legal writings increased. Authorities emerged. Experts and different
opinions entertained. The laws came to be systematically and logically arranged.
 The system acquired ethical basis means that the Roman system searched for and developed foundational
principles. Attempt was made to find out general principles that could explain thousands of specific legal rules.
The Romans did not want to get lost amidst detail legal rules. Three such principles developed were live
honestly, injure no one and give every one his due. The Romans did not stop creating such general
principles; they endeavored to translate them into thousands of specific legal rules and they checked whether
these detail legal rules conform to those general principles. Later the Roman jurists equated the ethical principles
with natural law. In a nutshell, the major feature of Roman law is its ethical conception.

The Twelve Tables (451-450 B.C.)

 The Twelve Tables were written by the Decemviri Consulari Imperio Legibus Scribundis, (the 10 Consuls) who
were given unprecedented powers to draft the laws of the young Republic. Originally ten laws were drafted; two
later statutes were added prohibiting marriage between the classes and affirming the binding nature of
customary law.
 The new code promoted the organization of public prosecution of crimes and instituted a system whereby injured
parties could seek just compensation in civil disputes.
 The plebeians were protected from the legal abuses of the ruling patricians, especially in the enforcement of
debts. Serious punishments were levied for theft and the law gave male heads of families enormous social power
(patria potestas).
 The important basic principle of a written legal code for Roman law was established, and justice was no longer
based solely on the interpretation of judges. These laws formed an important part of the foundation of all
subsequent Western civil and criminal law.
 The tables were supposedly written in response to the plebeians' protest that the patrician judges were able to
discriminate against them with impunity because the principles governing legal disputes were known only orally.
Exact quotations of the Twelve Tables are rare, but from references in later Latin writings their content has been
approximately reconstructed. They appear to have been an exceedingly formalistic statement of the customary
law. In later times the Twelve Tables were regarded with reverence as a prime legal source.
 If he (plaintiff) summon him (defendant) into court, he shall go. If he does not go, (plaintiff) shall call witnesses.
Then only he shall take him by force. If he refuses or flees, he (plaintiff) shall lay hands on him. If disease or age
is an impediment, he shall grant him a team (of oxen). He shall not spread with cushions the covered carriage if
he does not wish to. Whoever is in need of evidence, he shall go on every third day to call out loud before the
doorway of the witness. When a debt has been acknowledged or a judgment has been pronounced in court, 30
days must be the legitimate grace period. Thereafter, arrest of the debtor may be made by the laying on of
hands. Bring him into court. If he does not satisfy the judgment (or no one in court offers himself as surety on his
behalf) the creditor may take the debtor with him. He may bind him either in stocks or fetters, with a weight of no
less than 15 lbs. (or more if he desires).
 If a father surrender his son for sale three times, the son shall be free." "Our ancestors saw fit that "females, by
reason of levity of disposition, shall remain in guardianship, even when they have attained their majority." A
spendthrift is forbidden to exercise administration over his own goods.
 The inheritance of a Roman citizen-freedman is made over to his patron, if the freedman has died intestate and
has no natural successor. When a party shall make bond or conveyance, what he has named by word-of-mouth
that shall hold good.
 Marriage by `usage' (usus): If a man and woman live together continuously for a year, they are considered to be
married; the woman legally is treated as the man's daughter.
 "If any person has sung or composed against another person a SONG (carmen) such as was causing slander or
insult.... he shall be clubbed to death."
 "If a person has maimed another's limb, let there be retaliation in kind, unless he agrees to make compensation
with him." (Lex talionis)

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 "If a patron shall defraud his client, he must be solemnly forfeited (`killed')." "Whoever is convicted of speaking
false witness shall be flung from the Tarpeian Rock."
 "No person shall hold meetings in the City at night. ``
 "The penalty shall be capital punishment for a judge or arbiter legally appointed who has been found guilty of
receiving a bribe for giving a decision.
 "Putting to death... of any man who has not been convicted, whosoever he might be, is forbidden."
 "Women must not tear cheeks or hold chorus of `Alas!' on account of a funeral."
 "Anointing by slaves is abolished, and every kind of drinking bout....there shall be no costly sprinking, no long
garlands, no incense boxes."
 "Marriage shall not take place between a patrician and a plebeian." "Whatever the People has last ordained shall
be held as binding by law."?
 "There are eight kinds of punishment: fine, fetters, flogging, retaliation in kind, civil disgrace, banishment, slavery,
and death.

Common Features:

1. The three legal systems operated on the assumption that human beings were unequal. They did not accept the
principle of equality of human beings. The Mesopotamians maintained the institutions of slavery. The Greek and
the Romans did the same.
2. Under the three systems, foreigners did have few rights; they deprived foreigners of several rights.
3. The early systems had shown an amazing degree of stability, which was attributed to the conservative nature of
ancient societies. In general, early societies were taken as closed systems. They conceded little changes. The
changes were not basic; the changes were very gradual and did not affect the fundamental assumptions. If
changes had to be made, they were made by way of exceptions. Deep and sweeping changes, which we see in
modern societies, were unknown.
4. The three systems were believed to be religious in origin. The three legal orders, especially at the beginning,
assumed that laws were made and modified by supernatural entity. Human beings were presented as passive
actors. In addition, there was a belief that laws thus created and modified were put into application by not any
laymen but by those who were assumed to have close relationship with gods.
5. In the three systems laws initially were non-technical, which means the legal rules lacked developed principles
and developed institutions. The legal rules lacked distinctions and sub-distinctions. Modern state law knows of
classifications such as procedural and substantive laws, substantive laws are in turn divided into private and
public laws. Public laws are further divided into constitutional law, administrative law, tax law, etc. Early legal
systems did not have of such arrangements. The legal rules in force were situation-based.

Major Legal Traditions of the World

B. THE FRENCH LEGAL SYSTEM
 The French legal system belongs to the civil law tradition. The French legal system has borrowed legal style from
Roman law.
1. Civil law:
 In the framework of early and classical Roman law, jus civile was the law governing the relations of Roman
citizens. In the Middle Ages and up to the era of “reception,” the term ``civil law`` referred mostly to the Justinian
legislation and the accumulated doctrine of the commentators; it was contrasted to the canon law.
 In modern times, the term ``civil law`` refers to those legal systems, especially in their methodology and
terminology, shaped decisively by the Roman law scholars from Middle Ages to the nineteenth century. But
within the framework of a civil law system, as defined, the term ``civil law`` is ordinarily reserved to designate the
sum total of rules governing relations of private individuals (as opposed to public laws) as such, with the
exception of commercial acts and relations which are subject to commercial law.
2. The era of customary laws in France:
 Before the French Revolution, traditional customary laws prevailed in the north. The rules were Germanic
customs while Roman law influenced the southern part of France. Roman law gradually spread northwards. The
French legal system was not sharply divided because there were written rules influenced by Roman law but
containing strong Germanic elements in the south. And Roman law was not entirely rejected in the North.
 France received Roman law not because it had been laid down by Rome, but on the ground that it had been
accepted by custom or by reason of its quality. The existence of diverse customary rules and edicts created
some degree of legal uncertainty in France. France’s need for a single, unified code of laws had been keenly felt
even before the collapse of the ancien regime. Whereas, southern France had inherited Roman law, northern
France was ruled by a system based on customary law. The two systems were fundamentally different. The laws
differed not only from province to province but also from town to town. Nor were the laws always rational. Louis

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XIV, the Sun King, had summed up his approach to lawmaking with his famous phrase “It is legal because I wish
it.”
 The new Code introduced the concept of a unified, logical system based on general principles of law. This
facilitated the export of the ideas of the French Revolution beyond French borders.
 In their move to eliminate legal uncertainty, some practitioners attempted to record customary laws of particular
regions in France. It remained true, however, that the customary laws of Northern France depended principally
on oral tradition. The judge who did not know the appropriate rule of the relevant area had to discover it by
interviewing local inhabitants. The proliferation of custom and the difficulty of discovering their content led to
great legal uncertainty. As a result, a French king in 15 th century declared that the customs of the various
territories should be written down. The king also ordered that those, which were already recorded, should be
drafted anew.
 The intervention of the kings in having the customs recorded invited opposition from some territories. The
intervention and the effort to write down the various customs in France strengthened the power of the traditional
customary laws to withstand Roman Laws.
 The recording of customary rules saved France from the massive reception of Roman law, which took place in
Germany. The codification of customary laws created conflict of different customary rules. Recording of
customary law in France had brought about legal certainty. Yet, it could not diminish the substantial differences
between them. The recoding efforts of French customary laws made the difference among such rules sharp and
conspicuous.
3. The drive towards codification:
 The Court of Paris, which had very wide jurisdiction in the16 th century, was one of the key actors in France’s
effort to unify its private law.
 Practitioners and royal administrators also favored unification of law in France.
 The king played an important role by ordering compilation of customs. Professional lawyers` associations
emphasized the careful and moderate acceptance of Roman law in France. In France, like in England, there
developed early a well-organized and thus powerful group of practicing lawyers allied with the king. These
lawyers were interested in the centralization of justice in the royal courts. Royal Ordinances were applied side by
side with customary laws. These ordinances dealt with questions of feudalism, procedural law, and court
organization. Only later did they regulate areas of substantive private law as well as some of the rules found their
way into the civil code.
 Despite all these efforts, France on the eve of the Revolution was still very far from having a unified private law.
On the eve of the Revolution, all the important customary rules were codified. This codification only made it
easier to see the differences between them. At the eve of the French Revolution, diversity of laws and thus legal
uncertainty was the attribute of French law.
4. The Revolutionary Period (1789–1799):
 The French Revolution used law as a vehicle for political and social purposes. The French Revolution brought
profound and general changes in French society. In order to accomplish these changes, it used the methods of
revolutionary action, war, propaganda and law. It used law as a means for the overthrow of the old society and
for building of a new one. The end of law was not actually a technical one but a rather an ideological one.
 The reformers of the French revolution were not interested in changing all parts of the law. They concentrated on
certain areas and problems, which had major political and ideological importance. The French Revolution
attempted to adjust both the technical and the sociological content of the law to the changed times and ideas by
preparing several drafts of general codes. But the task was found to be too large and the codes were not
effective. The Revolutionary leaders gave up the idea of having general codes and in stead they introduced
partial changes in the law by issuing fragmented laws such as family law, law of crimes, law of mortgages, etc.
 The French Revolution was primarily interested in legal problems having political and ideological involvements.
And therefore since the French Revolution made ideological changes, the next period of Napoleon and the codes
concentrated on the technical concept of law. At the close of the French revolution, the problem that remained
was to change the technical parts of law that had not been touched by the revolution and to put into definitive
technical form of the ideological concepts of the revolution. The revolution had settled the ideological problem of
the law.
 All the institutions of the old regime were rooted out in a very short order. Such institutions included the absolute
monarchy, the interlocking powers of king, nobility, clergy, judiciary, and the old territorial division of the country
into provinces, the feudal regime of land and the court system. Human beings inherited status, chained together
by the bondage of servitude and marriage. The influence of parental power was immense. In its place,
proposition on the rational nature of man was articulated based on the assumptions that if information is given to
him, he processes it, develops several alternative solutions and chooses the best option. Man was considered to
be also autonomous, equal, selfish, responsible and with inalienable right at birth. No longer did man had to deal
with the intermediary status groups of the old regime. Man had to deal with the state itself directly. The state was
seen as an entity bound through its legislation to free its citizens from the traditional authority of feudal, church,
family, guild, and status groups, and to equip all its citizens with equal rights.

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 Under the government of Napoleon, France adopted a comprehensive code of law in 1804. The code included
many of the victories obtained during the Revolution such as individual liberty and equality before the law. The
code also incorporated most parts of Roman law. The code became a model for civil law systems. The most
important aspect of the code was that the law was written, as opposed to judge-made, and in a non-technical
style and thus more accessible to the public. The code regulated much of private law matters such as property,
will, contracts, liability and obligations. Many of its parts are traceable to Roman law.
5. The birth of Code Civil:
 The demand for codification in France preceded the revolution. There was a general dissatisfaction with the
jurisprudence of the Superior Courts (Parlements) and the diversity of local customs. The revolutionary
Constituent Assembly adopted a resolution in 1791 providing for the enactment of a civil code “common for the
entire realm.” Further steps towards drafting were taken by the National Convention of 1793, which established a
special commission headed by Cambaceres and charged it with the task of completing the project within a
month. This Commission produced a first draft consisting of 719 articles.
 When the Code was drafted the fanaticism of the Revolution had calmed down considerably. In the relatively
stable political situation under Napoleon, people could have second thoughts. Thus the draftsmen of the Code
could make good use of the principles of law which had been slowly developed by the courts of the ancient
regime and which had been carefully elaborated and refined by the writers of the 17 th and 18th centuries. In this
way, a compromise was made between the revolutionary ideas and the solid craftsmanship of traditional legal
institutions.
6. The French Civil Code:
 The Code Civil is founded on the idea of the Enlightenment. The code was also based on the law of reason that
social life can be put into a rational order if only the rules of law are restructured according to a comprehensive
plan. In France, it was the bourgeoisie, which by revolutionary means had brought down the socially obsolete
institutions of the old regime. The same class had founded the new state on the principle of the equality of
citizens. The same class again had created a code that reflected the demands of the Revolution for liberty and
equality. Only in France was the Code was the product of a revolutionary movement. Only in France, there was
complete harmony between social reality and the idea of society on which the code was based.
 The code conserved a large number of traditional institutions. The main aim of the drafts persons was to produce
a reasonable and balanced compromise. Its spirit was of moderation and wisdom.
 The Code as a whole was highly influenced by the theory of natural law. The theory of natural law simply sates
that there are autonomous principles of nature quite independent of religious belief. From those principles human
beings can infer a system of legal rules that if given intelligible from according to a plan, can act as the basis for
an orderly, reasonable, and moral life in society.
 The function of the legislature was to set up general rules.
 The Code avoids the danger of being too detailed. The Code leaves room for interpretation, for its terms are
often inexact, incomplete and ambiguous.
 The Code is a masterpiece from the point of view of style and language. It has often been praised for its clear
and memorable phrases, and for the absence of cross-references and jargon, all of which has significantly
contributed to the popularity of the code in France.
 The original Code Civil was the law-book of the third estate. The bourgeoisie had consolidated its position with
growing self-confidence and political influence.
 The ideal man the code had in mind was the man of property; the responsible man of judgment, a person of
reason, knowledgeable about affairs and familiar with the law. It is this idea which gives the code its particular
flavor. The existence of the bourgeoisie depended on guaranteed personal freedom especially the freedom to
engage in economic activities, and property especially the landed property. Freedom of contract is thus the
principle that dominates the law of obligations in the Code Civil but restricted as little as possible by mandatory
rules of law on the ground of public order.
 The legislature issued laws following the changing circumstances (e.g. law on the status of women.) The
decisions of the courts helped the Code adjust itself to modern requirements in France. The courts have
continually been construing these rules so as to develop, extend, or limit them. The courts in France have
brought new legal ideas into play as well as developing old ones. This task has been made easier since the code
did have unclear and deliberately designed to require completion of ambiguous, incomplete, etc., areas. The
influence of law books and French legal writers interpreting and exposing the Code Civil in a creative manner
also influenced the development of the French law.
7. Spread of French law:
 French law spread first to Europe, then, to Africa, Asia and Latin America.
 The French Civil Code was transplanted to Europe primarily through military force. In most areas where the
Code was introduced, it was embraced, and survived till Napoleon’s personal downfall. The Battle of Waterloo
did not end the application of the Code in Europe, particularly in western Germany and Italy. In the Netherlands,
the Code survived unaltered until 1838, whereas in Prussia the Code was gradually reintroduced. Even in areas
where French rule had been unpopular, such as Spain, post-Napoleonic governments were held up to French

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standards for a codified law.

Latin America received the French codes primarily because of the careful evaluation of its technical merits and as a
result of the reaction to the hated Spanish and Portuguese colonial rules. Latin American countries got independence
from Spain in early 19th century. These newly founded states needed national and unifying civil codes; the only
available model was the French Code Civil and Spanish law was out of the question since it was the law of the
previous colonial power and since it was neither codified nor uniform even in Spain where local customary laws
survived. The Code Civil was a product of the great revolution, rooted in a world of ideas on which the Latin
Americans had frequently drawn to justify their own struggles for independence. In its compactness and clarity of
phrase, the Code Civil was far ahead of any other code. And furthermore, the code was so full of traditional concepts
and ideas especially from Roman law, that its reception was not a deviation from the legal institutions known to the
Spanish and Portuguese settlers. Some countries in Asia and Africa received French codes due to the existence of
gaps and the force of French colonialism.

The Code had such a wide influence because it was the Code of the French Empire whose military powers, backed
by an advanced civilization, made such a deep impression on people not only during its brief life but many years after
it was over. The reception of the French Civil Code is attributable not only to the political power of the French
Empire, or to the spiritual influence of French civilization, but also in a great measure to the merits of the Code Civil
itself. In the 19th century, the Code enjoyed intellectual authority and almost a supernatural appeal as the Code of the
Great Revolution, which had abolished the ancient regime. The Code of Napoleon also produced legal unity and
equality for the citizens of a centrally organized national state for the first time. The spread of the Code Civil
throughout the world was greatly assisted due its admirable language and flexibility of its expression, in brief, its very
quality.

C. THE GERMAN LEGAL SYSTEM

 The German legal system belongs to the civil law tradition. The German legal system has borrowed legal style
from Roman law.
1. Background:
 German law has its roots in the feudal and territorial law that emerged in the 11 th century with the development
and organization of the city-states and principalities.
 In Germany, by the 13th century, a legal system of written law in statute books and unwritten customary law
coexisted side by side. During the 13 th century, German law followed the movement towards compilation and
further refinements of the territorial and feudal law of the region. There was a movement towards a general
codification of laws. The movement for a general law was shared with an ongoing codification of local laws,
applicable throughout large areas, kingdoms and fiefdoms, or very small territories. A parallel development in the
13th–14th centuries was the creation of a separate and distinct body of more sophisticated city law that is traced
to Saxonian cities from the early years of the 14th century.
 During the period of emergent German law, Roman law refined and reshaped by late medieval Italian
scholarship, was also finding its way to the German lands. The eventual “reception” of Roman law was facilitated
by the general application of canon law and also by the continued inability of a fragmented Germanic legal
tradition. While the reception of medieval Roman law was never total, it achieved dominance throughout the
empire by the end of the 15 th century. Even as the Holy Roman Empire was slowly falling into decay from the
close of the Middle Ages, and as the various German kingdoms asserted independence in the drafting of
legislation, Roman law remained the constant in the legal tradition.
 The reception of Roman law was much greater in Germany than in France. The reduction of imperial power in
favor of too many principalities was very conducive to the reception of Roman law.
 There was no common private law, no common German courts system, and no common fraternity of lawyers,
which could have opposed and delayed the introduction of Roman law. There were no central political and
judicial organs to lay the foundations of common German private law by rationalizing and elaborating the
traditional and very diverse laws of the various peoples and cities. In particular, there were no strong central
courts endowed with royal authority, nor any group of royalist lawyers to make the effort to produce a unified
private law.
 Roman law was not considered as a foreign law. The legal methods developed by Germanic law became
increasingly unsuited to the needs of the time. The judge made his decisions on the basis of traditional legal
knowledge, practical wisdom, experience, and practicality, and from an intuitive perception of what best
answered the objective and concrete facts of the case.
 There was thus a legal vacuum. And Roman law flowered. Roman law began to dominate not because its rules
were substantially better or more just than those of the traditional German law rather because it offered a whole
range of concepts and methods of thinking which enabled lawyers to grasp difficult factual problems. Roman law,
unlike the diverse customary rules in German, enabled the German society to place facts in a rational framework,
to see their implications and to make them the object of reasoned argument

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 Modern German law actually begins with the revived interest in natural law combined with a movement for
national codification. The most extensive results were the Bavarian codes on criminal law and criminal procedure
and civil procedure of 1751 and 1753, and the civil procedure code of Frederick of Prussia—the first book of the
Corpus juris Prussia of 1781. The final efforts of the ancien régime in all of Germany were overshadowed by the
revival of a national spirit in Germany after the Napoleonic Wars.

The series of political transformations in Germany after the Napoleonic period centered on the development of
national identity culminated in the defeat of Austria in 1866 and of France in 1870. For the next 30 years, the drafting
of codes based on national needs and culture occupied all of German legal scholarship. The resultant codification
was substantially an accomplishment of the “historical school” of German-Roman law scholarship and a reaction to
the natural law orientation that influenced the French-controlled civil law tradition. New codes were enacted
throughout the Empire for the first time. A commercial code adopted by the German Confederation in 1861 came into
force for the Empire in 1871. And Prussia also adopted a criminal code in 1851. Codes of civil and criminal procedure
were adopted in 1877.

2. The Padectist School:

 It was the historical school of law that produced the Pandectist school whose only aim was the dogmatic and
systematic study of Roman law material.
 For followers of the school of the Pandectist, the legal system was a closed order of institutions, ideas, and
principles developed from Roman law. One only had to apply logical or scientific methods in order to reach at
solution of any legal problem. In this way, the application of law has become a merely technical process obeying
only the logical necessity of abstract concepts. According to this school, the application of legal rules has nothing
to do with practical reason, with social value judgment, or with ethical, religious, economic or policy
considerations.
 In Germany, at the time there was no class of practicing lawyers bound together by professional solidarity. And
the integrations of legal life on the political and practical levels were delayed by the influence of powerful
territorial rules until late in 19 thc. In such a situation, the pandects school could at least claim for itself that by
producing a method of studding law that was common to the whole of Germany it had brought about integration
at the theoretical level.
 The Pandectists created a set of clear and clearly distinguished concepts, which contributed much to the
technical sophistication of German Law. But they did not seek out the real forces in legal life. They did not ask
what ethical, practical, or social justification for their principles there might be. Consequently, much of what they
wrote is abstract and hairsplitting.
 The first move towards the codifications of unified German private law occurred about the middle of 19 th, the
pace makers being commercial law and the law of negotiable instruments. The enactment of the German civil
code was not accomplished until 1896. The German Civil Code was a major, detailed and innovative body of law
and came into force on 1 January 1900.
3. The German Civil Code:
 It had unnecessary scholastic structure. This structure is the result of the influence of the abstract conceptualism
of the Pandectist School. The Code uses legal jargons. The code has a complicated system of cross-references.
It ignored many legal traditions of Germanic origins that were still vital among the German people. It also seemed
to have abandoned the traditional ethical obligations and relationships of trust in family and society in favor of an
extreme and impersonal individualism.
 The institution of private property and succession guaranteed to the propertied classes, who alone benefited
from them, the perpetuation of their power of controlling the means of production and the Code was created at a
time of relative social and political stability. Its spirit was retrospective and reflective. It sought to maintain a
situation favorable to the establishment.
 The Code was more the summation of the 19 thc than the reflection of the 20 th century. That is, rather than boldly
anticipating the future it prudently sums up the past.
 It reflected the belief that the general good could spontaneously flow from the interplay of economic forces
provided that the state did not interfere.
 The typical addressee was not the small artisan on the factory worker but rather the moneyed entrepreneur, the
landed proprietor, and the official, people who can be expected to have experience and sound judgment, capable
of succeeding in a bourgeois society with freedom of contract, freedom of establishment and able to take steps
to protect themselves from unfair freedom of competition. In language, method, structure and concept the code is
the child of the deep, exact and abstract learning of the German Pandectist School. The Code did not addressthe
citizen at all. It addressed the professional lawyer. It deliberately avoids easy comprehensibility and waives all
claims to educate its reader. Instead of dealing with particular cases in a clear and concrete manner, it adopts an
abstract conceptual language throughout.
4. Spread of German laws:
 The German codes were not transported so extensively as the French codes.

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 They were transplanted at the end of the 19th century to Japan and thereafter to some African countries.
 The reasons for the little expansion of the German codes lie in the fact that
 Germany did have few colonies, as she was a latecomer to the scramble for different parts of the world.
 The codes were a bite sophisticated and complex.
 when the German codes were put in place at the beginning of the 20th century in Germany, many
countries had already adopted laws from France and Great Britain. So there were then little legal gaps
to be filled with in countries in Africa and elsewhere.
5. Code and codification
 A code of law is an area of law documented in a general, systematic and comprehensive manner. The concept
of a code of law should be understood in context for there is no universal definition of a code.
 Compilation of laws is not expected to be as systematic and complete as a code of law. Compilation refers to
putting together of several statutes in a readable form.
 Consolidation of laws relates to putting together of statues on different nature issued over time in a readable
manner; the aim of consolidation of laws may be to know the laws repealed or amended.
Codes and the Enlightenment:

 A decisive change occurred in the intellectual climate of Europe in the 17 th century.

 The Enlightenment sought to free the individual from his medieval bondages by subjecting the traditional
activities in religion, politics, law and culture to rational critics.
 The Enlightenment wished to make it possible for human beings to create a new view of the world on the basis of
reason. The particular product of this idea was codification.
 Codification is the idea that the diverse and unmanageable traditional law could be replaced by comprehensive
legislation, consciously planned in a rational and transparent order.
Codification and nationalization of laws:

 Codification was a unique socio- historical phenomenon developed in the civil law tradition during the 19th
century.
 The Codes drafted during this process differed from the compilations of the Roman, Canonic law, or other codes.
 The Codification was not focused on gathering, compiling, improving or reforming the existent pre-scientific law.
Codification rather focused on planning a better society by means of new systematic and creative law.
 According to the principles of rationalism, the Codification focused on systematizing and simplifying the legal
system. As a consequence, it was necessary to draft codes without gaps and with coherent, clear, and complete
legal rules. Thus, as far as accessibility to the people was concerned, the French Civil Code represented the
model of coherence and simplicity. The German Civil Code of 1896 (effective in 1900) had a profound impact on
modern Codification. The differences between French and German civil codes are relevant. The former is based
on the principles of rationalism and natural law whereas the latter is scientific, technical, and heavily influenced
by the Pandectist system.
 The key reasons offered by scholars to explain the 19 th century codification in Latin America have been the need
to avoid uncertainty of the applicable law, to stabilize the legal system, and to consolidate new national regimes.
In fact, after independence, drafting civil codes and constitutions was the primary interest of jurists and
legislators in Latin American new independent republics.

D. THE COMMON LAW TRADITION

1. The British legal system
 In the English legal system, legal technique is not interested in interpreting statutory texts or analyzing concrete
problems so as to fit them into the system conceptually.
 The English legal system is principally interested in precedents and types of case. The English legal system is
devoted to the careful and realistic discussion of live problem. The English legal system seeks deal with concrete
and historical terms than think systematically or in abstract.
 The influence of Roman law on the common law of England has been minor. England was not affected in
practice by the idea of codification. The idea was born of the law of nature and the Enlightenment. Codification
can be stated as the idea that the disorderly historical growth of law could be refined and planned into a
generally comprehensible form as a result of deliberate and planned legislation used on a rational system.
 England never had an explosive political upheaval such as the one occurred in France in 1789.
 In the middle of 11th century, William I succeeded to create a tight, integrated, rather simply organized feudal
system. He made himself the supreme feudal overlord. He took land from his opponents. He distributed land to
his supporters in return for rendering services so that his political power would tilt towards the center.
 The most influential barons were relegated to the peripheries to protect the borders against the hostile Scots
Welsh. The invaders place tax laws and implementing institution in place. Fiscal reasons also justified the
increasing intervention by the central royal administration in civil and criminal law to protect the biggest land
owning class. The Royal courts emerged. The royal courts applied more modern and progressive rules. These

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progressive rules gradually led to the disappearance of local laws. The prestige and authority of the royal judges
increased.
 England very early enjoyed a unified law. England created the common law in the 14 th century.
 Thus, there never existed in England one of the essential factors behind the idea of codification. These factors
on the Continent were the practical need to unify the law as well as on the philosophy of the Enlightenment and
the thinking of natural lawyers.
 Roman and England gave judicial protection to rights only if the plaintiff could obtain a particular document of
claim. The very similar ways in which litigation was initiated in English and Roman law led legal practitioners in
Rome and England to think not so much in terms of rights. Legal practitioners in England and Roman system
thought in terms of types of action.
 Origin of Case Law
 The origin of the idea of judge-made law can be traced back to the time when the king himself presided as judge,
earning for himself the title of, "Dispenser of Justice” or "The Fountain of Justice.
 In England, although the kings gave up the practice of presiding as Chief Judge very early, the courts always
followed the king in his travels throughout the country, until the Magna Carta in 1215 enacted that the Royal
Courts should be fixed in one particular place for the convenience of the public.
 Case law grew up in England because of the accident of the early English judges being Normans. They were
foreigners to England. They were bound together by an esprit de corps. The binding elements made early judges
in England respect each other's decisions, especially when these decisions dealt with matters, which were
strange and unfamiliar to them.
 In England, the Norman judges when they used to meet at the Temple discussed their cases, and started the
practice of following each other’s decisions. Once the Bar discovered that the best argument in favor of a
particular case was the decision of a brother judge in a similar case, they began to take notes of cases by these
judges. And in that manner law reporting came into existence. Law reporting became an established practice in
this manner.
 The growth of case law in England was also accelerated by the reaction that set in against the reception of
Roman law.
 In England also, the local law was found to be unsatisfactory with the advance of civilization.
 Decisions began to be followed for the sole reason that they came from judges who were delegates of the king,
entrusted by the king himself to administer justice. During the time of James I, official reporters were first
appointed. And later on, each single decision standing by itself had become an authority, which no succeeding
judge was at liberty to disregard.
 In conclusion, the first reason for the emergence of the case law doctrine is an accident of history, namely the
Norman Conquest. The Normans were strangers to England. As strangers, the Norman judges had naturally a
strong sense of brotherhood, which led them to follow each other's decisions.
 The role of equity:
 Towards the end of the 14th century, the legal creativity of the royal court gradually began to decrease. It became
clear that the procedure of those courts was in many respects too crude. The procedure was also rather
formalistic and that the applicable law was too rigid and incomplete. Cases were being lost because of technical
errors. Cases were lost because witnesses had been bribed. Cases were lost also because of the opponent’s
political influence.
 Thus, in 14th century parties who had lost a lawsuit in the king’s courts on one of the grounds or who could not
obtain appropriate writ petitioned the king for an order compelling his adversary to do as morality and good
conscience required.
 The king entertained such petitions through the Chancellor. The decisions he made developed into complex
special rules called “equity”. The purpose of the hearing before the Chancellor was to discover whether, as the
petitioner complained, the defendant had behaved in a way contrary to morals and good conscience.
 Equity is a part of substantive law distinguished from the rest by the fact that it was developed by the decisions of
a particular court, the Court of Chancellor. The rules of Equity did not openly contradict those of the common
law. The rules of equity did not seek to replace the common law. Instead, equity supplements to the common
law. Equity is often extremely important; and sometimes goes so far as effectively to neutralize the common law
rule. Equity was not a system but common law was or is.
 In the 14th century, the nature of English law and the course of its development were fundamentally affected. The
main factor for such development was the fact that very early in its history, there arose a class of jurists who
organized themselves in a kind of guild and so exercised a very great influence.
 In the 10th and 17th centuries, the common law faced the threat of being entirely ousted or at least pushed into
the wings by Roman law; this was the time of great conflict between parliament and the English kings who
wanted an absolute monarchy. In this dispute, Roman law had a great appeal for the royalists for it alone could
support the political claim that whatever it pleased the king had the force of law. The kings moved to establish
the Star Chamber, a special court, as there was a favorable intellectual climate from lawyers and churchmen
who were not practitioners and educated on Roman law.
 The Influence of Roman law:

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 For two reasons England never received Roman law in comprehensive way. The closed organization, the
professional solidarity, and the political influence which the class of English lawyers, who were devoted to the
maintenance of the common law on grounds of principle and profit alike, had built up over three centuries. These
lawyers censoriously threw all their weight behind parliament, the eventual victor in the political battle, of the
time. The common law became a mighty weapon in the hands of the parliamentary party in the struggle against
the absolutist prerogatives of the king, for in its long history it had developed a certain tenacity, its very
cumbersome and formalistic technique serving to make it less vulnerable to direct above. After a bitter struggle in
the course of the 17 th century, all threats to the survival of the common law as the supreme law of land
disappeared and a long period of internal peace began. In this period, the English Bar produced a whole series
of eminent judges under whom common law and equity developed peacefully, adapting themselves to the needs
of a country whereas industry and trade, both internal and external, increasingly grew in importance with
agriculture.
 The period of legal reform:
 After the defeat of Napoleon, England’s external position was one of the unprecedented strength. But internally,
the 19th century started with a period of serious political and social crises.
 The center of economic activity had moved to trade and industry. Workers had increasingly migrated to the cities
but both houses of parliament were still composed of extremely conservative aristocrats, bishops, and landed
gentry.
 The continent of Europe impoverished by Napoleon’s wars, offered a very poor market outlet for English industry,
so that the number of unemployed grew alarmingly and wages dropped. Starvation and strikes spread.
 The forces of progress in England began to realize that political and social reforms were inevitable if a revolution
was to be avoided. A statute issued in 1831 gave the middle classes a share of political power for the first time.
 In the 19th century, as a result of the influences of Jermy Bentham and his followers, many laws were issued.
 Such legal reforms included
 The alteration of the court jurisdictions,
 changes in court procedures,
 Change in the law of civil procedure and to a lesser degree, the substantive law consolidation at the common
law and abolition of the writ system.
 But no complete codification was made. Bentham and his school believed that legislation was the only way to
achieve legal certainty and to bring the law into a simpler and generally comprehensible form.
 Spread of British laws:
 Originated in 11th century, the English legal tradition expanded itself predominately through colonialism.
 The expression ``the sun never sets in the British Empire`` has attained the level of a saying. In addition to some
other meanings, the expression suggests the extent of the spread of the British law.
 The English law was transported to North America (the United States of America and Canada), Asia and Africa.
 England transported legal ideas, legal methods, and legal institutions of the common law to countries in these
continents. Britain also carried the substantive and procedure laws to these parts of the world. These parts of the
world also reflect the English court system and the structure of the legal profession.

2. The American Legal System

 The age of theocracy:
 Until the 17th century, the age of theocracy prevailed. The colonies settled disputes by priests applying the verses
of the Holy Bible. The colonies had had loose connection with one another.
 In the 17th century, the age of theocracy gradually disappeared as a result of several developments. Such
developments included law books, lawyers, and trade relations among the colonies and with England.
 Reception of common law:
 In principle, the colonies accepted the common law.
 The colonies, however, made important exceptions to the common law. The colonies reflected that exception by
issuing special statutes. First, the colonies saw that some aspects of the common law were unsuited to their
local conditions. This implied that the idea that the content of law is determined by climate, geography, economic
and social conditions of a given society. Second, the colonies introduced alterations in the common law because
the ideals (spiritually, politically and economically) of the settlers were different from that of the British. As a
result, the colonies introduced changes in criminal law, civil procedure, succession law, family law and land law.
The settlers thought that these areas of law were expressions of feudal oppression.
 The colonies also de-professionalized the practice of law. The colonies changed the manner in which judges
came to power.
 The victory of the north:
 In the 19th century, the tension between the North and the south was resolved in favor of North.
 The North argued for protective tariff and against slavery. The agricultural South stood for slavery and against
tariff.

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 The North and the South fought a civil war. Immediately after the war, economic expansion opened the west.
The doctrine of economic liberalism dominated the American economy. This led to the emergence of legal
creativity in the area of insurance law, company law, mineral law, banking law, stock exchange carriage and
credit system. Universities started to emerge, focusing on the study of law as a practical preparation for the legal
profession.
 The role of law professors:
 In the 20th century, America witnessed the emergence of law professors and their great influence in the American
mode of legal thinking.
 The emergence of the professors and their influence led to some changes.
 First, it resulted in the gradual weakening of the extreme individualistic ideas of the period. Individualism
advocated for little or no interference of the state in the economy.
 Second, America witnessed the growing tendency of the state to subject economic life to supervision and
control and deliberately to limit the freedom of activity of the trader whenever it might cause undesirable
hardship to individual citizens.
 The third effect is related to legal writing, legal practice, legal education and court behavior. The law
professors dismissed the formalistic, deductive and abstract legal reasoning. They concentrated on the
concrete effects legal rules produce in the society.
 They considered law as a means to balance competing interests in the society. The law professors argued that
for a judge to live up to his/her expectations he/she must understand the prevailing social, political and economic
situations. The same law professors argued that law in books and laws in action are different. Some of the law
professors argued that law is not precedent, nor to be found in the statutes. But law is what the courts and
officials do. This theory of law is known as legal realism.
 Legal uniformity:
 The United States of America has been concerned with lack of legal uniformity in its territory. There are more
than 53 legal systems including the federal legal system. Each of these systems has its own elements of a legal
system such as lawmaker, the judiciary and the executive.
 Americans decided to minimize the extreme case of divergence and have developed a number of strategies to
that effect.
 One method of bringing national legal homogeneity is through the project of the Restatement of the Law. The
Restatement of the Law does not claim authority as precedent or a statute does; but it is the expression of
precedents and statutes. The second method employed to bring about legal uniformity has been standardizing
law textbooks and encouraging the major law schools in the country to use those texts.
 Spread of the US laws:
 Itself a product of 17th and 18th centuries transplantation of the British legal system, the legal system of the United
States of America (especially constitutional law, criminal procedure and anti-trust law) was taken to Japan
immediately after the Second World War.
 Via the influence of international organizations such as the IMF and the World Bank, some aspects of
constitutional law of the United States of America was transported to countries in Latin America, Africa and Asia.

3. Civil law and common law contrasted

 Romanist infiltration-It has been said that the civil law is characterized by a direct
derivation from, or wholesale adoption of, Roman law. On the contrary, common law is
supposedly free from Roman law influences.
 Structure: code and precedent- civil law is codified while common law is based on
precedents. However, there have been civil law countries without a Civil Code: Germany
before 1900, France before 1804, and Greece until as late as 1946. On the other hand,
codes have been enacted in several common law jurisdictions: in Massachusetts (1648),
Virginia, Georgia, Bermuda, and in a number of western states in the United States after the
model prepared by David Dudley Field last century. Accordingly, the criterion of codification
cannot be accepted. The difference between the civil law and the common law relates to the
function of judicial precedents within each system: precedents are not binding in civil law
while they are binding in common law. Yet, in all civil law countries deviation from settled
judicial practice needs special justification; and in most civil law countries a jurisprudence
constante is binding on all courts. On the other hand, the doctrine of stare decisis has been
tempered in the United States and what may be called an American theory of precedents
permits a great measure of flexibility. Characteristically, it has been suggested that the
increase of precedents in the United States will eventually lead to an eclipse of the stare

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decisis doctrine. The function of precedents, therefore, cannot be acceptable criterion for the
differentiation between civil law and common law.
 Technique of reasoning: deduction v. induction- Technique of reasoning in civil law is
deductive while in common law is inductive. Indeed, the civil law is largely university made
law, has been influenced by broad principles of natural law, and tends to be abstract: thus,
the deductive approach seems to fit it best. But the inductive approach is not unknown in
civil law: according to civilian theory gaps in the law are to be filled by analogy from settled
rules of law or by a free creative jurisprudence. The common law is a practical judge-made
law: thus the inductive approach is best suited for it. The deductive reasoning is also known
to the common law, however: it is quite frequently applied in constitutional and statutory
interpretation as well as in the application of broadly formulated principles of case law.
 Philosophy: natural law v. positivism- the civil law favors positivism, as a result of its
preference for legislation, while common law favors the achievement of justice in concrete
cases.
 It should be noted that differences between the two systems of law are fewer than
similarities: both systems are products of the western civilization.
 Technique and methodology: judge-made v. university-made law: common law is
basically the product of judicial legislation. Judge-made law tends to be practical,
unsystematic, and casuistic. Modern civil law is the product of professorial elaboration in
universities; as such, it tends to be doctrinaire, abstract, and conceptualistic.
 Common law courts during this period protected individual freedom through writs:
mandamus, habeas corpus, prohibition, certiorari, and quo warranto. Thus the common law
came to be regarded as the “birth right” of Englishmen. The old rules were gradually
adapted to meet new needs through fiction, special writs, and the creation of new remedies.
The doctrine of stare decisis has never been followed too rigidly. Rationalism and natural
law philosophy became absorbed into the common law, but concessions were made slowly
and smoothly. There have been no nationalistic claims fot the unification of law through
codification. And, characteristically, Bentham’s efforts had only partial success.
 Aspects of the judicial process: The statement that the judicial process in civil law
systems is purely mechanical does not correspond to the truth: but differences in the
method of deciding cases in civil and in common law jurisdictions are noticeable. Perhaps,
the most striking difference between the two systems of law is to be found in the
psychological attitude of the judge towards legislation. In a way, this is related to the
problem of the sources of law: where will a lawyer look for the law? In common law
jurisdictions statutes tend to be narrowly construed, and, at times, ignored; in civil law
countries judges and lawyers alike start their judicial reasoning from statutes as embodying
general principles capable of covering any conceivable fact situation. It has been said: in
common law statutes have the force of law because judges permit it; in civil law judges can
legislate because statutes allow the practice. A comparison of doctrine surrounding
codification and legislation in general may be summarized as follows.
 Modern civil codes have their spiritual origin in Romanist doctrine and in natural law
philosophy; The philosophical background of the various civil codes is rationalism rather
than traditionalism. A code, in order to do away with the past, must be comprehensive.
Earlier codes, to exclude judicial law making, contained detailed provisions. Later codes
included “general clauses” allowing the judges much freedom. A code, in order to break with
the past, must also be systematic and logically arranged so that reasoning should furnish
answers to all questions. Statutes bearing on civil law matters are not always included in
civil codes. But these statutes, like the codes, are subject to logical and teleological
interpretation and capable of application by analogy.
 Common law codes, on the other hand, have been described as “digests” of case and
statutory law. These codes have their spiritual origin in Bentham’s utilitarianism. They have

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not been intended to break definitively with the past; they have been considered as merely
declaratory of the common law in force and they were construed narrowly. Rationalism did
not replace tradition or precedents. Statutory legislation in common law has been interstitial
rather than comprehensive and has varied rather than displaced old rules: common law
judges did not need the guidance of comprehensive codes. In the framework of the common
law the relevant question is whether a statute applies. There is no search for underlying
principles; and where a statute does not apply the common law governs.

 Shared Features of the Western Legal Traditions:

 The most obvious feature of modern civil law is that it is codified. Codification in the sense of
a statement of the whole law in a coherent systematic form is a product of eighteenth
century.
 Modern civil law is the sharp distinction between public law and private law. In civil law, the
first question that a lawyer is usually asked is whether he/she specializes in public or private
law. If one is a public lawyer, one practices in a different set of courts from those that deal
with private law, with a different procedure and a different atmosphere. The public lawyer
deals exclusively with cases in which one of the parties is a public authority. As a result,
his/her whole approach to law is different from that of a private lawyer.
 The civil law conceives written law as the sole source of private law. And the highly
systematic nature of modern codes of civil law lies behind the form of reasoning that
characterizes it.
 Civil law reasoning may loosely be described as deductive reasoning. Deductive reasoning
proceeds from a broad principle, expressed in general terms, and then it considers the facts
of the particular case. A syllogism, on the other hand, applies the principle to the facts so as
to reach a conclusion. This form of reasoning, syllogism, leads the civil law lawyer to present
a legal argument as if there can be only one right answer to any legal problem.
Disagreement on the application of the law to the facts of a case must, in the case of
syllogism, be the result of faulty logic by somebody. Thus, civil law judges in general do not
give dissenting opinions. In the civil law system, every judgment, even in appellate cases, is
that of the court as a whole. Traditionally, the duty of the civil law judge is to apply the
written law, and the meaning of that law is to be discovered from the writings of its academic
exponents.
 Modern civil law, however, makes a sharp distinction between substantive law and
procedure.
 Harold J Berman thinks that the western legal traditions have ten common features. These
features are reproduced below.
1. A relatively sharp distinction is made in the Western legal tradition between legal institutions
and other types of institutions.
2. In the Western legal tradition the administration of legal institutions is entrusted to a special
corps of people, called lawyers or jurists, who engage in legal activities on a professional
basis as a more or less full-time occupation.
3. Legal professionals are specially trained in a discrete body of higher learning identified as
legal learning, with its own professional literature and its own professional schools or other
places of training.
4. The body of legal learning in which legal specialists are trained is supposed to have a strong
effect on the legal institutions; the legal learning conceptualizes and systematizes the law,
with the result that the law is seen to contain within itself a legal science, a meta-law, by
which it can be both analyzed and evaluated.
5. The fifth characteristic of the Western legal tradition was not present in the older Roman law
of Justinian; it is, I believe, uniquely Western. It is the conception of law as a coherent

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whole, an integrated system, a "body." Using the twelfth-century scholastic technique of
reconciling contradictions and deriving general concepts from rules and cases, Western
jurists were able to coordinate and integrate the chaotic mass of rules and concepts that
constituted the older Roman legal texts. They converted those texts into a corpus juris -- a
phrase that was not known to Justinian. The same technique made it, possible for Gratian to
write his Concordance of Discordant Canons, which was the first comprehensive legal
treatise, the first systematic analysis of a body of law.
6. The Western concept of a body or system of law carries with it a sixth characteristic of the
Western legal tradition, namely, the belief in the ongoing character of law, its capacity for
growth over generations and centuries.
7. Seventh, the growth of law in the West is thought to have an internal logic. Changes are not
only adaptations of the old to the new but are also part of a pattern of changes. The
process of development is subject to certain regularities and, at least in hindsight, seems to
reflect an inner necessity. Changes proceed by reinterpretation of the past to meet present
and future needs. This is the myth, the faith. The law is not merely ongoing; it has a history.
8. Eighth, the historicity of law is linked with the belief in its supremacy over the political
authorities. It is thought that law, at least in some respects, transcends politics; it binds the
state itself. This belief also goes back to the late eleventh and the twelfth centuries and to
the separation of the ecclesiastical from the secular power. The secular authorities, it was
then argued, may make law, but they may not make it arbitrarily, and until they have lawfully
remade it, they are to be bound by it.
9. Ninth, perhaps the most distinctive characteristic of the Western legal tradition is that
diverse jurisdictions and diverse legal systems coexist and compete within the same
community.
10. The tension that has existed between its ideals and its realities, between its dynamic
qualities and its stability, and between its transcendence and its immanence. These
tensions have periodically led to the violent overthrow of legal systems by revolution.
Nevertheless, the legal tradition, which is bigger than any of the legal systems that comprise
it, eventually survived and, indeed, was renewed by such revolutions.

E. THE SOCIALIST LEGAL TRADITION

 The socialist legal tradition originated at the time of the October Revolution of 1917. Before that event, the
dominant legal tradition in the Russian Empire was the civil law.
 One intention of the Soviet revolutionaries was to abolish the bourgeois civil law system and substitute a new
socialist legal order. The actual effect of their reform was to impose certain principles of socialist ideology on
existing civil law system and the civil law tradition. Under the influence of the Soviet Union and Marxist thought,
similar legal changes have taken place in those states of Eastern Europe (and in other countries, such as Cuba)
that had the civil law tradition before they adopted the socialist legal system.
 The roots of the socialist legal system are traceable to the civil law system.
 Primitive society versus communism:
 The state of affairs envisage under communism seems to be similar to the conditions that prevailed during the
primitive society.
 In both primitive and communist systems, economic classes, private property, the state and law are non-existent.
 In both systems, governance would be by non-legal rules of morality.
 Because of the consensual nature of these rules, they would or would not be enforced through any form of
external coercion.
 Communalism is at best a form of primitive communism.
 Perception about law:
 The socialist attitude is that all law is an instrument of economic and social policy.
 Socialists see the western legal system as incorporating and perpetuating set of goals and ideals that socialists
regard as socially and economically unjust.
 At the same time, the common law appears to a soviet lawyer to be unsystematic and undeveloped, in
comparison with carefully drawn Soviet legislation that builds on the civil law tradition of system and order.

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 Finally, to a socialist lawyer, both the civil law and common law traditions are subject to critics, because they
embody but do not clearly state their ideologies. Such a lawyer sees the western legal systems as devices by
which bourgeois ideals are concealed to exploit the proletariat.
 The term ``natural justice`` denotes the general principles and minimum standards of fairness in adjusting a
dispute. The term ``natural justice`` embodies the specific requirements that no man be judged in his own case,
that each side be heard, and no man shall be condemned unheard. This principle of natural justice goes through
socialist civil and civil procedure rules.
 Among the principles of natural law that have found their way into socialist law is the social contract theory.
That is, the principle of self-preservation in pursuance of which man sought to find security by transferring all his
natural rights to the state and promising to obey that state. Under this theory, the delegation of power by the
citizens to the state is unconditional. And the exercise of the delegated authority by the sovereign is absolute.
 The other principle is sanctity of contracts. That is obligations voluntarily undertaken must be fulfilled There is
another principle of socialist law, which is the obligation to repair damage done by one’s fault to others.
 Among the major contributions of socialist law to comparative jurisprudence is its general theory on the nature
and functions of law.
 Generally speaking, Marxist-Leninist theory on the origin, nature, and functions of law may be reduced to the
following fundamental tenets:
 The present man is imperfect and evil by nature. His imperfection, however, is historical and arose directly as
a result of his socio-economic and political environment. Law is a coercive order or a sovereign command,
not a set of rules imposed by the people from below or a set of rules that spring from within the group. Law
emerged as an instrument for regulating the external conduct of the evil man. Man’s evil nature resulted from
and was sustained by the exploitative nature of the environment created by the slave-owning society,
feudalism, and capitalism. Even though a causal connection no longer exists between the environment under
socialism and man’s evil nature, the socialist man is nevertheless still imperfect primarily as a result of the
cumulative effect of the past environments on his inner being. The historical mission of socialist law is to
cleanse man of his evil nature and to prepare him for the ultimate demise of law under communism. In other
words, since his environment corrupted the present man, the task of socialist law is to remold man in his
original image. To return to his original, pre-law state of being is to prepare him for life in a post-law society.
 A second of fundamental tenets of Marxian jurisprudence includes the following. Because law is an order
emanating from the sovereign lawgiver, an individual citizen has no right to disobey the law. Law selectively
incorporates certain rules of morality. But the legitimacy of law does not derive from its moral base. Even
though the laws of a bourgeois society are immoral in absolute terms and even though the laws of a socialist
society come closest to reflecting the morality of the majority, an immoral law is law nevertheless. And the
province of the law is all embracing and all encompassing. Accordingly, there is no zone of individual privacy
that is precluded from legal regulation. A lawmaker, however, may impose certain limitations on his power to
legislate on certain matters of individual privacy. Subject to such self-imposed restraints, the power of the
sovereign to legislate is absolute. No area of human conduct lies outside the reach of the long arms of the
law.
 To the Marxist-Leninist, the emergence and continued existences of law is inseparably linked with the
emergence and continued existence of the state. To him, the state is an organization of the political power of the
ruling class. The state is a specific form of political organization through which the governing class asserts its
authority over the entire society. But under advanced socialism, the state is perceived as the organization of the
political power of the whole people. Like law, the state is an historical phenomenon. It is not eternal. In the
primitive society when there were no economic classes and no notions of private property there was no state.
Historically speaking, the state arose only after the emergence of private property and the resultant division of
society into antagonistic economic classes. The state was devised as a machine for the preservation of the
dictatorship of one class over another. The economically dominant class also acquires political dominance over
the economically powerless class. The state, like law, is an element of the superstructure. Its nature and form
are predetermined and preconditioned by the economic basis over which it is superimposed.

Socialist law operates as its own gravedigger. By consciously engineering the advent of communism, socialist law
lays the groundwork for its own death. The fact that there would be no laws under communism should not be taken
to mean that anarchy would prevail in that society. All it means is that law will be replaced by a system of rules of
communist morality to be enforced through a system of social pressure. In order to prepare society for the ultimate
replacement of law with rules of communist morality, it is anticipated that during socialism the rigid demarcation
between legal norms and moral rules would be gradually eliminated. It follows, therefore, that one of the
characteristic tendencies of the development of socialist law is the gradual but programmed convergence of the rules
of law and morality. Thus, whereas socialist law started out by incorporating the rules of morality prevailing among
the governing majority classes, it is expected to end its development by being fully assimilated into the rules of
communist morality.

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 Purposes of socialist law:
 The historical mission of socialist law is to advance society towards socialism and ultimately towards
communism.
 Socialist legal rules are seen as an instrument of social engineering. Socialist legal rules are weapons in the
hands of the political rulers aimed at achieving the set political goal through the coercion of general compliance.
The socialist legal system is characterized by elements such as an uncompromising recognition of the supreme
leadership of the omnipotent Communist Party, state ownership of land and the collectivization of the use of land.
 Socialist law is the fundamental remaking of the conscience of the people. The purpose of the law is to inculcate
in the people such ideals as high moral soundness, unwavering belief in the idealness of life under communism,
and self-sacrifice for the common good.
 Socialist law operates on the assumption that man has been corrupted by his socioeconomic environment and
as such has become evil. The present imperfect man needs to be cleansed of his evil ways. The task of
transforming society from capitalism to communism must be carried out at the same time as the reformation of
man himself.
 In order to create the perfect man, socialist law mobilizes all available legal, quasi-legal and social institutions.
This system calls upon everyone to be his brother’s keeper. Everyone must come to the rescue of a fellow citizen
in the times of need, and to love one another. Among some of the moral virtues which socialist law seeks to
inculcate in the new man are love for the fatherland, international solidarity among the masses of the world,
hatred for the class enemy, unmitigated support for communist party policies, selfless sacrifice for the benefit of
society and socialist humanism. Humanism as understood by the socialists constitutes respect for socialist
property, honorable attitude toward state and social duty, respect for the honor and dignity of one’s fellow
citizens and the rules of socialist communal life, love of one’s neighbor, and love for work and the dignity of labor.
Viewed from this perspective, socialist law does not merely seek to regulate legal relations of today, but more
importantly, it seeks to prepare society for the ultimate demise of law.
 Socialist law is not a science. Socialist law operates on the premise that if you can affect the belief of the people
and make them think a new magic has been found, even if your reasoning is wrong, you can probably change
the system. In a sense, it is a challenge of faith. It is dogmatic, yet pragmatic also. Under the socialist legal
system, law is totally subordinated to the prevailing socio-economic and political conditions. Law is only a conduit
between politics and economics. And to that effect law is immediately preempted whenever it conflicts with
overriding economic or political considerations.
 Codification and socialist law: Socialist law is featured by the tradition of codification. Legislation is
recognized as the preeminent source of law; deductive reasoning and an inquisitorial procedure. Socialist
law does not recognize the division of law into public and private law. Socialist legal traditions consider all
law as public.
 More on the hallmarks of socialist legal tradition:
 In the west, law is understood as setting limits to politics by defining rights to individuals. In the socialist legal
system, law is supposed to give untrammeled power to the communist party.
 Law in socialist society is taken as a tool for educating the human person about the worth of collective values.
The source of law should emerge from the communist party alone, not from the representatives of the people.
 Law is to die with the state and in the classless society; law will be replaced by community morality that will
emerge on the basis of consensus
 In the socialist system, law and state would have temporary existence.
 In the socialist system, the systems of property would be: state property, collective/mass property and personal
property. All the key means of production should be placed in the hands of the state. Individuals should own only
personal property means that amount and kind of property that would be necessary for the survival of individuals.
 Spread of socialist laws:
 Russia, later USSR, used its global hegemonic power to take socialist law and policies to different corners of the
world. With the collapse of the USSR, the country that created, spread and sustained the socialist legal tradition,
countries located in Eastern Europe and in Africa abandoned the system in favor of the civil law tradition.

F. THE ISLAMIC LEGAL TRADITION

 Islamic law owes it origin to divine power-Allah. Islamic law encompasses the spiritual as well as the secular
activities of Muslims. Islamic law interplayed with common law and civil law systems in 19 th and 20th century.
 Essential aspects:
 Islam is based on the principle of the inseparability of religion and politics. This conception necessitates the
codification of Islamic law as the law of the country, proclaimed and administered by national governments.
 Islam links together all facets of life into a composite whole regulated by Shari ‘a.

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 Shari’ a, which can be literally translated as "the road to the watering place" or "the clear path to be followed,"
means in the legal context, "the sacred law of Islam." It encompasses the entire system of Islamic law, dictating
penal laws and daily religious, social, and personal interactions.
 The whole of the law is permeated by religious and ethical considerations. And everything is measured by the
standards of religious and moral rules.
 In Islam, there is an integral relationship between religion and morality. This relationship necessitates the set of
rules embodied in Islamic law for the protection of the moral values of the Muslim community.
 The Islamic community is responsible for watching over the practice of what is good and decent, and prohibiting
that which is evil.
 The heart of Sharia Law is that its validity emerges from divine origin . Allah is the source of Sharia law.
Sharia law does not emanate from earthy human will. Every Muslim must follow these rules if s/he is to live up to
the expectation of Allah.
 According to Islamic law, the source of Western law is human origin while the source of Sharia Law is divine
origin. Western law is mutable (law is the function of the changing circumstances in the society) while Sharia law
is immutable (it is not subject to change). While western law governs the earthly life of human beings Sharia law
deals with both the earthly and spiritual aspect of Muslims. Muslim Law claims to cover all aspects of human life.
And while western law is subject to time and that Muslim law is eternal, as it claims to be beyond time.
 Muslim legal scholars admit that the Sharia law is not put in a comprehensive and orderly form. There are gaps
to be filled in by discovery, understanding and formulation of already existing rules.
 Sources of Islamic law:
 The first and most important source of Shari'a is the Holy Koran. The rules derived from the Holy Koran are,
therefore, regarded as the highest rules. All rules derived from other sources should be in full accord with
Koranic ones.
 The Suna is the second source of Islamic law. The Suna is the totality of the inspired practices of the prophet.
The Suna includes the collections of sayings and records of Prophet Mohammed. It includes what the Prophet is
recorded to have said, done, approved, or forbidden.
 The third source of Islamic law, Ijma, is the consensus of Islamic legal scholars on any particular point of law.
 The final major source is the concept of deduction by analogy, Qiyas, which involves the use of logic and
reason. Qiyas comes to operation when the other three sources of law become inadequate to address a given
legal issue.
 Doctrinal differences:
 In Islamic law, doctrines that are too generally phrased have arisen and these doctrines do not have the
characteristics of a legal rule.
 Some of these doctrines area: Medina, Hanafi, Maliki, Shafii and Hanbali.
 This doctrinal difference arose because of geographical difference, influence of the style of life, stage of
development and legal practice of the neighboring community.
 The doctrine of the four roots of Islamic Law was developed in order to minimize the great diversity in
doctrines. During the 9th century, the fertile grounds for diverse ways of looking at a Koranic verse dried up as a
result of the view that Muslim scholars may not hold independent opinion. Muslim scholars must rather stick to
the Koran or already existing authoritative texts.
 External influence:
 Before 19th century, Islamic law could regulate the social, political and economic conditions. The Islamic world
became content with the Sharia law.
 The need for legal reforms arose from 19 th century on wards. The Islamic section of the world came in close
contact with the European influence. It was sensed that the legal life of this community had to undergo changes.
 The proposal for reform led to conflict with traditional Islamic doctrine – mutability and Immutability, man made
versus Allah made law.
 Degree of external influence:
 In cases where the conflict has been less manifest, acceptance of western commercial and maritime law was
successful. In other areas (family law, succession), the western laws failed to deeply penetrate the Sharia law.
 In the 20th century, reforms began even in the areas where the influence of Islamic law was deeply entrenched.
The influence and authority of the classic Muslim legal scholars was immense and incomparable with the
influence of continental legal scholars.
 Spread of Islamic law:
 Islamic law, since its date of inception, in the Middle East in 7 th century, has been taken to the coastal parts of
West, North, East and South East Africa, on some occasions also to deep into the heart of Africa, owing to such
factors as commercial intercourse and migration.
 This brand of law and its thinking have been spread to countries in the Far East.
 The geographical location stretching from West Africa to the Far East constitutes what may be called Islamic law
belt. In the areas to which Islamic law has been spread, there used to be customary laws already in place, and
in those areas in 19th and 20th century, western conceptions of law, i.e., common law and civil law, arrived thus
creating an opportunity to the interaction of the four legal traditions.

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 Notes on Islamic Law in Ethiopia
 As one of the oldest recipients of Islam, Ethiopia has a significant Moslem community.
 Historically, the Moslem community was disfranchised, particularly in the Christian highlands, as they were
excluded from the traditional land-holding system.
 The Solomonoid emperors considering themselves as lord protectors of the monophysite faith, i.e., Orthodox
Christianity, ignominiously marginalized the Moslem community, relegating them to second class citizenship.
 Islamic law has been used to regulate the secular and religious affairs of Moslems since time immemorial.
 In Ethiopia, there are three sects of Islam, all of which belonging to the Sunni tradition. These are (a) the Shaffi,
(b) Hanafi; and (c) Maliki.
 The long de facto existence of Shaira courts in Ethiopia got recognition in law in 1942 when the Proclamation for
the Establishment of Kadis’ Courts was issued. This proclamation legitimized the competence of Islamic courts
in matters relating to marriage, divorce, gifts, succession and will. It provided that “any question regarding
marriage, divorce, maintenance, guardianship of minors and family relationship, provided that the marriage to
which the question relates was concluded in accordance with Mohammedan law or when the parties are all
Mohammedans, shall fall under the jurisdiction of the Shari’a Courts. It further stipulates that the government will
appoint the judges including the Chief Kadi who was invested with a number of prerogatives ranging from
working-out procedures and rendering final decisions in his appellate jurisdiction to attachment and execution.
 In 1944, the Kadis and Naiba Councils Proclamation No. 62/1944 was promulgated, repealing the earlier
proclamation. Under the new proclamation, Shari’a courts were re-established and a new set of courts were
introduced. Pursuant to this proclamation, there are three sets of Islamic courts: (1) the Naiba council; (2) courts
of the kadis’ council and (3) the courts of Shariat.
 However, in 1960 a Western-based Civil Code was enacted which purports to repeal Islamic law. Despite the
sweeping thrust of the repeal provision, Shari’a courts remained in tact and kept on functioning and applying their
law independent of the regular state court structure. “The code,” Abdulmalik writes, “remained a purely
theoretical work devoid of real value in respect to those matters governed by the Sharia rules despite the fact
that those matters were supposed to be ruled by the Civil Code which automatically would have brought the
abrogation of the Sharia’a rules by virtue of Art. 3347(1)”
 The 1994 Ethiopian Constitution also recognizes the independent validity of Islamic law and the competence of
Islamic courts to adjudicate cases concerning personal and family law. In order to execute this constitutional
provision the House of Peoples’ Representatives has issued proclamation No. 188/1999. This legislation spells
out the circumstances under which Islamic law can be applied by Shari’a courts.
 The hitherto existent Shari’a courts have been reconstituted into a three-level federal judicial structure, distinct
from the regular (state) federal judicial structure. These are: (1) Federal First Instance Court of Shari’a, (2)
Federal High Court of Shari’a and (3) Federal Supreme Court of Shari’a. Like the federal state judicial organs, all
the federal Sharia courts have been made accountable to the Federal Judicial Administration Commission. All of
the State Councils have also given official recognition to Shari’a courts within their respective jurisdictions.
 Article 4 (1) of Proclamation No. 188/1999 stipulates that: Federal Courts of Shari’a shall have common
jurisdiction over the following matters:
 any question regarding marriage, divorce, maintenance, guardianship of minors and family relationships;
provided that the marriage to which the question relates was concluded or the parties have consented to be
adjudicated in accordance with Islamic law;
 any question regarding Wakif, gift/Hiba/, succession of wills, provided that the endower or donor is a Muslim or
the deceased was a Muslim at the time of his death.
 Any question regarding payment of costs incurred in any suit relating to the aforementioned matters.
 Sub-Article (2) of the same reiterates the principle of parties’ consent as the basis for the adjudicatory jurisdiction
of Shari’a courts. Shari’a courts can assume jurisdiction “only where… the parties have expressly consented to
be adjudicated under Islamic law.” Tacit consent has also been provided for in addition to express consent.
Pursuant to Article 5(2), a person who appears before the court amounts to consent to the courts jurisdiction on condition that
the defaulting party has been duly served with summons. Thus, the suit will be heard ex parte. Sub-Article (3) of the same
provides, that “In the absence of clear consent of the parties for the case to be adjudicated by the court of Shari’a before which
the case is brought, such [a] court shall transfer the case to the regular federal court having jurisdiction.” Moreover, once a
choice of forum has been made by the plaintiff and the defendant has consented to the jurisdiction of such a forum, under no
circumstance can either party have their case transferred to a regular court (Article 5(4).

CHAPTER THREE
Customary law
 Tradition
1. Custom of belief a long established action or pattern of behavior in a community or group of people often one
that has been handed from generation to generation. Pattern of behavior varies from place to place.
2. A body (collection) of customs, long established customs and beliefs viewed as a set of precedents.

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In order for precedent to be precedent the case should be unique the case of jurisdiction is also considered.
3. Handing down of customs It is the handing down of pattern of behavior practices and beliefs that are valued by
culture. Custom value tradition but tradition can’t value custom.
 Custom
 Custom is Simple rule of conduct but customary law is sth which could control the pattern of conduct
1. Tradition, sth that people always do or always in particular way by tradition.
2. Habit, the way somebody usually or routinely behaves in a particular situation.
3. A traditional like law, a traditional practice that is so long established and universal that it acquired the force
of law (binding nature).
 Derived from the old French word “costume” meaning habitual practice.
 Habit
 An act acquired by experience and performers regularly and automatical, habits include mannerisms such as
moving the hands when talking, satisfying psychological cravings, smoking or over eating.
 Some more complex human activities such as playing basketball and speaking French. But habits can be
eliminated or modified such as hair and eyebrow pulling and finger biting, shoulder jerking, scratching, over
eating.
 Ceremony
 Formal activity prescribed by custom ritual or religious belief
 Served to unite the members of a given group, strengthen, shared beliefs celebrate achievements of mile
stones in the lives of individuals or groups or facilitate discussions. E.g. music and dancing is often
incorporated in to the ceremonies of many societies.

Custom

 Practice frequently repeated in determined locality in such circumstances that is to be accepted as a part of law
of that locality.
 Its acceptance is expressed by free consent of the people.
 It is unwritten law recognized and sanctioned by consent of the people.
 Customary law
 Is unwritten law which derives from actual practices of nations.
 To be accepted as la law the custom must be long standing wide spread and practiced in a uniform and
consistent way among the nations.
 Custom and customary law
 Regulator system in a certain locality
 Both are not written and binding
 Custom is passive and customary law is active.

Origin of custom
 Primary origin of custom is moral (a conduct that distinguishes human from other animal). The rule of conduct of
wrong and right.
 As Aristotle moral is related with family (nucleus of state), custom with clan, sophisticated custom with tribe and
laws with state. The primary source of moral is family and the primary source of family is two opposite sex.
 Lous Morgan says there was no moral. The family was formed by person who have blood relations and there
was vertical relation and horizontal relations
 The first marriage Group marriage brother could marry his sister vertical marriage was prohibited gradually
 After prohibition of the vertical and horizontal and moral starts to emerge.
 Moral
 From God
 From personal principle
 From custom

Moral is a simple rule of conduct.

A moral in order to be custom

 It should be frequently and regularly applied in solving a particular social problem

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 There should be recognition by reasonable number
 It should be exist for a long period of time
 D/c b/n and similarity custom and moral
 Similarity
 Both are source of law
 Both are rule of conduct
 Both are not legally binding
 Both are social norms
 Difference
 Moral is a primary source were as custom is secondary
 In case of moral there no sanction but in custom ether is social sanction
 Moral is individual rule but custom is public rule.
 Custom and law
 Similarity
 Both are rule of conduct
 Both need modification
 Both are product of society
 Bothe can loss there importance with in a time
 Difference
 Custom is not legally binding
 Custom vary from locality to locality
 Custom is socially mandatory but law is politically mandatory

Ethics

 Branch of philosophy that deals with the badness and goodness of behavior or conduct of human being.
 Studies moral and custom scientifically
 Doesn’t vary from place to place
 Thought at the higher institutions
 Studies critically custom
 It is not rule of conduct by it self
 moral is weaker that ethics

Similarity and differences of custom and ethics

 Both regarded conduct of people of human person

 Custom binds individuals to pursue traditions, recognized and accepted or respected rule of conduct of a
particular locality.
 Ethics evaluates such conduct of rules with advanced criteria.
 Ethics is principle

Amhara
 There were traditional institutions which have similarity with Greece
 The customs were not written

Institutions

1. Abat
known for their intelligence and most of the time, elderly persons who were respected and feared in the

community
 elected as Abat at the general meeting of the community
 Depending on the area and population, a number of Abats to be elected might be as many as seven.
 The main objective for election of Abats were in order that they would collectively be responsible for:
 Making law
 dispensing justice,
 executing justice and
 Deciding criminal as well as civil cases.
2. Yegobez Aleqa
 Sometimes known as “chief of the strong” or military leader.
 it was empowered to lead all able bodied men in the community, to maintain peace and order, to re-institute
property to those who were disposed and to enforce outlaws to submit to the people’s power

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3. Chiqa Shum ( village chief)
 Responsible for communicating the government’s orders to the people of his locality and collecting taxes.
 He acted as state functionary below the wereda or Melkegna (a local chief above the Chiqa Shum) or the
Abegaze (a governor of a locality) or the Gult-Gezi (a hereditary local chief).
 See cases involving bartering trace pace, collect tax
4. Yezemed Dagna (family arbitrator)
 They were not constant institutions, but they were elected for every dispute that arose within a community.
 Main purpose was to bring the disputing parties to an amicable settlement before seeking the assistance of
the Abat or government officials.
Amhara culture contributed for the family arbitration in modern laws.

Tigray
 The customs were party written
 the seven pacts of customary law that were written originally in Tigray and which were kept either in church of
the locality or by elders are Wala-sobatta-Ansa, Ser’at Adkama-Melga, Ser’at Nay Habsellus and Gebrakristos,
Heggi Adghena and Tegheleba, Heggi Nay Laggon Chewan, Ser’at Karnesem, Heggi Sharten, Lamzan.
Waqaten and Damban

Traditional institutions
1. The Bayto
 The assembly of elected members of a village to make new laws or to amend existing ones.
 In case there was a question to be raised pertaining to the interpretation of the law made by the Bayto, the
opinion of those elected representatives was taken as final and binding.
2. The Chiqa Shum
 Is the village chief empowered to exercise executive and judicial activities.
3. Elected Village Elders
 Descent for the purpose of holding public offices through election and for the purpose of succession and
the like was reckoned through the paternal line.

Oromo
1. the judicial (dispute settlement) aspect of Gadaa
The Gadaa consists of a series of elaborate rules and rituals, and a number of Gadaa officials are

appointed every eight years to act as arbitrators, law makers and ritual leaders.
2. the Jaarsa Biyyaa (also known as Jaarsaa Araaraa or Jaarsumaa)
 (‘Elders of the soil' i.e. 'of the country') is a customary institution for resolving conflicts.
 It is constituted by elderly and respected men who have the experience of resolving conflicts.
 All types of cases from simple civil matter to complex criminal cases are subject to the jurisdiction of the
Jaarsaa Biyyaa or Jarsa Araaraa (literally 'elders of reconciliation')

3. the Qallu spiritual leaders and their transformations into spirit-medium mediators
 The Qallu among the Western Oromo came to take on more than just a spiritual role, and are involved in
dispute settlement institution based on spirit-possession-medium ship
 The Qallu is a person who serves as a medium for the Ayyaanaa (the spirit) and is believed to have a
capacity to communicate with Waaqa (God).
 He is considered as the spiritual leader of the community.

Customary international laws, that contributed for the development of public international law and private international
laws.

1. Because of conflicts that arise between Umm and Nagash a treat was made between them.
 To confirm the existing territory.
 Performing of treaty by taking and oath
 Peace full resolution of disputes between them.

This lead down peace full means of dispute settlement

2. Treaty made between Egypt and Asian king.

 For rendering help to each other in case of war.
 Recognition of each other as a great

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 Not to fight each other forever
 Respecting the treaty
 Extradition of refugees
 Respecting the obligation to perform the existing treaties
 The principle of pacta snt servanda emerged ( for private international law)
 The most important diplomatic rank and immunity
 Before 7 B.C foreigners were not protected but after 7 th B.C they were allowed to use their domestic laws and
this lead to the development of public international law
3. Laws related to code of Hammurabi. Ignorance of law is not excuse.
4. Laws related to Israel 5th rule of Moses there were 3 kinds of citizens
 Those who approved the rule of Moses
 Those who steeled in Israel
 Those who crossed or use Israel

Provisions related to criminal law which relate to principle of equality

5. Laws related to India. Which relate to diplomatic relations

6. Laws related to china. Peace for means of settlement of disputes which is universally recognized principle in the
modern international relations

Classification of custom and customary rules

1. In terms of scope of application
2. In terms of social problem to be solved

In terms of the scope of application

 Local custom
 Is the custom whose applicability is limited to particular area or profession or ethnic group.
 Prevails only in defined locality.
 National custom
 Prevailed and well known at the country level.
 Most parts of given country
 Sub regional custom
 Effective only within a given sub-region
 Regional custom
 There application is limited within a given region or continent
 International custom
 The application is universally recognized and effective in the countries of the world

In terms of the social problems to be solved

 Customary marriage
 Business custom
 Political custom
 Contractual customary rules

Business custom

 In the mid age business was regulated by customs because there were no written laws.
 There were courts that were formed to solve business conflicts
 Maritime court: - found in coastal towns applied customary maritime law which appeared generally in
Western Europe. Solve problems relating to hiring of ship carriage of goods by sea, maritime insurance and
pairesy and crimes on the high sea
 Local court
1. Court of the spot: - particular special areas consisted of local trade foreign trader and the mare of the
town. Justice was speedy and the unwritten customary laws of merchants were applied. Problems
relating to bill of exchange. Sometimes called pie podere because the merchants come with dusty feet.
2. Courts of the staple: - were seat up in certain staple towns (important towns) which had monopoly in
trading staple goods as wool and leather. Apply customary law of the merchants

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Political and diplomatic custom

In the ancient Greece there were proxens which protect individuals whose rights were violated.

Contribution of Greece for the development of diplomatic relations

 Protection of ambassadors
 Violating the ambassadors was considered as violating the king
 Ambassador was allowed to take with him his home furniture etc. and this were exempted from taxation.
 Ambassador was certified by a document called diploma which is now known as credential letter which is
give to the hade of receiving state

Customary law in Africa

Common Features of African Customary Laws

 African Customary laws perceived to be primitive. African Customary Law is the totality of norms comprised
of what has variously been described as "native law," "native customary law," "primitive law," "folk law,"
"informal law," "non state law," "indigenous law" and even "tribal law."
 African customary laws commonly cursed for being gender insensitive.
 The customary laws commonly interconnected with religious guidelines.
 The African legal system, the traditional one, is presented as being static.
 African customary laws are also known for being too normative.
 Conciliation plays a very important part in African law since community life and group isolation give rise to a
need for solidarity.
 The most evident feature of customary laws has been its oral nature. The teaching of the past is preserved
through the informal, though sometimes highly disciplined, means of human speech and human memory.

Customary law in Ethiopia

1. Before Fetha Negest

Codification or systematized organization of customary laws start in the ancient time

The cause for codification of law of Hammurabi

 to systematize scattered customary rules

 to form centralized rules and regulations
 to facilitate political leadership

need for studying Ethiopian customary law

 to familiarize with the customary laws

 to understand merit and dimerities of custom
 to come up about its economic, social and moral development

different acts need different laws

2. Fetha Negest
 Was prepared in Egypt for the existing Christian people
 Until the introduction of Fetha Negest the Ethiopian live by using their custom.

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CHAPTER FOUR

THE AFRICAN LEGAL TRADITIONS

 The traditional African customary laws claim to govern the moral, religious and secular conduct of human beings.
 The scope of the African legal system is broader than the modern western legal system.
 The African legal system, the traditional one, is presented as being static.
 The dead, gods and the living are considered to be the actors responsible for making the African laws. The gods
and the dead are regarded as actors responsible for enforcing the African customary laws.
 The unit of analysis of the African customary law is not the individual but it is the community.
 The goal of the African legal system is conciliation and compromise. The idea is not to settle case in the sense of
win-lose struggle in state courts but it is to be settled in the form of win-win. The participants in a given conflict
should go back to the community and live peacefully, without losing the face of one another. Generally, the
African customary law is attacked for being not gender sensitive.
 Designations:
 African Customary Law is the totality of norms comprised of what has variously been described as "native law,"
"native customary law," "primitive law," "folk law," "informal law," "non state law," "indigenous law" and even
"tribal law." The nomenclature conceptualizes the perception of customary law as being inferior to other laws
within a legal system. It also affirms the distinctiveness with which African Customary Law has been regarded.
This form of isolation of African Customary Law has obscured its dynamism.
 Scope:
 The rules governing under developed societies deal both with behavior and with the settlement of disputes. They
cover everything, which must be “making no distinction between religion, morals and law. ``
 Features:
 The African systems of law are sufficiently similar in procedure, principles, institutions and techniques for it to be
possible to treat them as a whole.
 The difficulty of subsisting and dangers from the outside world making life precarious, the inhabitants were
obliged to seek refuge in communal life and solidarity, and to place themselves under the protection of
supernatural forces. Such forces included God and ancestor people, laying down its laws and guarding man to
survival. Thus the most important African legislative is invisible: composed of gods and ancestors. Their
decrees, however, are not only legal but moral also. Their action extends to the individual conscience since they
are also the counselors and judges of each individual.
 The African mentality is mystic. And the fear inspired by the environment causes the African to stand still in
contemplation of the past and respect for that which is. African law seeks to preserve the group and peace.
 Persons subject to African law are the gods, the dead and the individual.
 African law is designed for a structured society.
 African law sees the woman generally as inferior to man.
 Conciliation plays a very important part in African law since community life and group isolation give rise to a need
for solidarity.
 For centuries, the commonly held view has been that African Customary Law represents primitive, traditional,
ancient and immutable regimes non-suited for modern administration of justice. This view was reinforced by the
common law tradition, which perceived law as ancient and immutable. Thus, in order to search what the law
"really is," judges must study precedents. Similarly, custom was recognizable by the courts if it was ancient and
unchanging.
 Modern African law is a collection of laws and habits of legal thought. African indigenous law is not static. African
law is subject to evolution. It is generally unwritten. It has different branches including substantive and procedural
laws.
 African law does not simply focus on reconciliation. There is a procedure to be followed and there are
substantive laws to be applied. After independence, African law is restated. Restatement does not mean it is
thereby made inflexible and frozen. Restatement of African law is done for the purpose of unification and
convenience of administration.
 One of the sources of indigenous African law is custom. Custom is the body of standardized patterns of behavior
that have been established by the usages and observances of people and having the force of law. Indigenous
legislation (declaration of legal rules by a competent authority) and precedents are also sources of African law.
 External contacts:
 African society has been transformed by contact with the monotheist religions such as Christianity and Islam,
and under the influence of colonization, but without the successive contributions of civilization really becoming
unified.

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 The colonizing nations each organized the territories fallen to their share according to their own law. It is not
without cause that African Customary Law has been underestimated. Primarily, the prevalence of customary
norms and practices is questioned by the very existence of the "modern" state structure in Africa.
 The adjudication of customary law issues is, thus, undertaken within an integrated legal system largely informed
by the laws inherited from the colonizers.
 During European colonization, in relation to the judicial structure as a whole the position of the local court varied
from country to country. But two basic patterns can be recognized. One is an integrated system where the local
courts were linked with higher judicial bodies, particularly the high or supreme courts by way of appellate
jurisdiction. And the second pattern is a parallel system, which involved the separation of the local courts from
the judicial system administering primary non-indigenous law. Indigenous law was invalidated where it was found
out to be contrary to natural justice, equity and good conscience.
The best way forward for British administration was by way of conserving, recognizing officially and using the existing
indigenous systems of rules and law of native authorities. The native courts and the native customary law were
recognized as an essential part of the apparatus of indirect administration. But later the concept of integration was
introduced. The concept of integration involved in the integration of special customary courts in the regular territorial
court system without totally abolishing special court for African customary law. The African law was to be steadily

brought into in line with English ideas of law, justice and procedure.

CHAPTER FIVE

Legal Pluralism

. Legal pluralism is an expression of tolerating the existence and operation of multiple legal orders in a given
legal system at the same time. Legal pluralism allows several groups to handle some of their legal
problems differently. Legal centralism, however, works in the opposite way. Legal centralism either
silences multiple legal orders or denies their existence. Legal centralism rests on the assumption that
law comes only from the central government. Laws coming from other sources should not have a place
at all. Legal pluralism is concerned with what a legal system does with its several communities having
their own method of solving legal problems.

IT implies the inclusion of different orders, which co-exist with the state law, although maintaining a level of
autonomy. The existence of multiple “legal” orders in any one particular community is a manifestation
of legal pluralism. Legal pluralism also is concerned with the relation between state law and indigenous
law. State or government law is only one of the types of law that apply. In practice, there is co-existence
and interaction between multiple legal orders such as international, state, customary, religious and local
laws.

, legal pluralism refers to a situation, which is morally excluded by the ideology of legal centralism a situation
in which not all law is state law nor administered by a single set of state legal institutions, and in which

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law is therefore neither systematic nor uniform. Legal pluralism in its weaker sense can refer within the
ideology of legal centralism, to a particular sub-type of the sort of phenomenon.

Different senses of legal pluralism: According to Alice Tay, there are four senses of legal pluralism. Most
broadly, the phrase simply reminds us that there are many and different legal systems, legal
arrangements, legal customs, and legal 'cultures' in the world, and that they may and do conflict with
each other.

Legal pluralism bases itself on cultural relativism. Cultural relativism has many meanings. One of such
meanings holds that culture may be an important source of the validity of a moral right or rule; there is a
weak presumption of universality, but the relativity of human nature, communities, and rights senses as
a check on potential excesses of universalism.

Legal centralism: Legal centralism may also be called legal singularism. Law is and should be the law of the
state, uniform for all persons, exclusive of all other law, and administered by a single set of state
institutions. To the extent that other, lesser normative orderings, such as the church, the family, the
voluntary association and the economic organization exist, they ought to be and in fact are hierarchically
subordinate to the law and institutions of the state. Law is an exclusive, systematic and unified
hierarchical ordering of normative propositions, which can either be looked at either from the top down
wards as descending from a sovereign command or from the bottom upward.

A criticism directed against legal centralism is that it fails to see the other side of the legal world. Legal
centralism disregards the factual situations on the ground. The failure to see the factual world leads
legal centralism not to accept that law in modern society is plural rather than monolithic, that law is
private as well as public in character and that the national (official) legal system is often a secondary
rather than a primary base of regulation.

Approaches to Formal Legal Pluralism: There are several possible approaches to formal legal pluralism. You
can mention these: unitary, the dual, the integration and legal pluralism approaches. .

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The unitary approach to pluralism exists the case where government-made laws abolish all existing
customary practices and traditional institutions and replace them a single system. Ethiopia in 1960`s did
adopt this approach. So did other African countries such as Kenya.

A dual system attempts to undertake a compilation of customary rules subject to repugnancy test. The dual
system also recognizes the operation of customary courts side by side with state-established courts. So,
the dual system permits traditional institutions and customary rules to survive on certain matters
parallel to the state created institutions. The dual system shows greater tolerance to customary
institutions than the unitary system. Botswana has adopted this approach.

. The integration approach, as the name indicates, tries to synthesize uniformity and diversity. The
integration approach seeks to conduct the inventory of customary rules and examines if there are any
common ground with the state-made laws.

finally, the two systems are blended in a single system

Formal Legal Pluralism in the Ethiopian Legal System: There is a need to be aware of the provisions of the
Ethiopian present constitution and the Ethiopian Civil Code that recognize the role of customary
practices to a certain extent. Such type of recognition may give a sense of legitimacy to the official legal
system. Such recognition may also contribute to the effectiveness of the formal legal system

: Approaches to Legal PluraLism

As you discussed in the previous section of this unit, formal legal pluralism may have different approaches,
which differ in one significant way: the extent of recognition of customary rules. One approach might
give little place to customary rules and another approach a very broader space. You can list the following
approaches: the incorporation approach, the dual approach and the integration approach

Attributes of Legal Pluralism

Formal Legal Pluralism in the Ethiopian Legal System: There is a need to be aware of the provisions of the
Ethiopian present constitution and the Ethiopian Civil Code that recognize the role of customary
practices to a certain extent. Such type of recognition may give a sense of legitimacy to the official legal
system. Such recognition may also contribute to the effectiveness of the formal legal system. To some
degree, such recognition also pay attention to the reality, that is, a number of human behaviors in
Ethiopia are being regulated, not by the laws the central government makes, but by customary practices
in the localities.

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The FDRE Constitution: Article 9 (1) of the FDRE Constitution states that ``…Any law… customary practices
that are inconsistent with this Constitution shall be invalid.`` The message of this constitutional provision
is very important. This provision assumes that there are several customary practices in the country. It
also assumes that some of those customary practices may not be in harmony with the provisions of the
constitution. Further, the constitution assumes that some of the customary practices prevalent in the
country may be consistent with the constitution. The key message of this provision is that those
customary practices that do not offend the constitution would be given space and application. The
drafters of the constitution did not think it desirable for Ethiopia to give a wider recognition of
customary practices.

The key issue this constitutional provision raises is: what is the test to adopt in saying that a certain
customary practice should be rejected? The simple answer to this question appears to be the values
such as human rights the Constitution has incorporated. For example, if a certain community in Ethiopia
has a practice that offends the right to life and the right to enter into marriage by the free consent of the
intending spouses only, that practice will be invalidated, that is will not have legal effect. Article 9 of the
FDRE Constitution does accommodate some customary practices while it rejects others.

Article 9 (1) is the key provision in the FDRE Constitution that allows the operation of customary practices.
However, there are other provisions that also permit custom. I will reproduce those articles below. Go
through these provisions with care and try to find out their messages.

Article 34 (4) provides that:

In accordance with provisions to be specified by law, a law giving recognition to marriage concluded
under systems of religious or customary laws may be enacted.

Article 34 (5) states that:

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This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in
accordance with religious or customary laws, with the consent of the parties to the dispute.

Article 35 (4) stipulates that:

The State shall enforce the right of women to eliminate the influences of harmful customs. Customs and
practices that oppress or cause bodily or mental harm to women are prohibited.

Article 78 (5) provides that:

…State Councils can establish or give official recognition to religious and customary courts. Religious and
customary courts that had state recognition and functioned prior to the adoption of the Constitution
shall be organized on the basis of recognition accorded to them by this Constitution.

It is based on these constitutional provisions that the Sharia courts are operating in the various parts of
Ethiopia. There is a proclamation establishing the Sharia courts at the federal level. Jurisdiction to the
Sharia courts is based on the consent of the parties to a dispute. The Sharia courts have the power to
handle family and succession cases if the parties to such dispute submit to the power of the Sharia court
handling such sorts of cases.

Based on the above constitutional provisions, it is possible for other religions to establish their respective
religious courts too.

This question deals with a very important question: what should be the proper criteria to reject a given
customary practice: the human right approach and the identity approach. A legal system should adopt a
customary practice if such practice is associated with the identity of the community practicing it. Or a

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customary practice should be abolished if it clashes with a basic human right. The two tests may be
incompatible, that is, they may not go together. The FDRE Constitution seems to adopt the human right
approach; customary practices in Ethiopia will not be given a place if they do not go with the human
rights the constitution recognizes.

The present Ethiopian constitution provides that any law or customary practice that contravenes the
Constitution is invalid. Article 34 (2) of this Constitution states that marriage shall be entered into only
with the free and full consent of the prospective spouses. In view of this clause it should not be difficult
to dissolve marriages, say, in Gedeo society in South Ethiopia, which were concluded on the basis of the
consent of the parents only. Those marriages would not be valid.

CHAPTER SIX

ETHIOPIA LEGAL SYSTEM

1. CONCEPTIONS OF LAW IN ETHIOPIA

 Law as a gift of a supernatural power
 In a country that houses such a large number of ethnic groups and cultures, it is very difficult, or even impossible,
to speak of an ‘’Ethiopian conception of law.’’ Expectedly, the conception varies from group to group and region
to region, depending on a multitude of factors.
 What we are interested in is, however, just to show what the dominant popular conception has been. This has
been found to be necessary for three reasons:-
 it is believed that the type of conception a people has about law shows the degree of its preparedness for
the so-called modern life and modern laws;
 the nature of the people’s conception of law indicates the type of legal personnel that is expected to exist in
a society; and
 it will present a good point of reference from which to see and appreciate the new laws under consideration.
 When we try to study its historical development, however, at least two important factors will come to our memory
to tell us their intimate relationship with this Ethiopian conception of law: religion and philosophy of law.
 As regards the latter, it is a difficult one to trace in Ethiopian history, simply because in the nature of
philosophical thought, unlike religion, it does not run after followers. It rather manifests itself in the theoretical and
practical activities of enlightened and interested individuals. As a result one cannot say that the natural law
theory comes to Ethiopia and dictated its terms at this or that time. When it comes to religion, however, it seems
that we are in a better position to say something about it. It is not without problems, however. There is, for
instance, a problem of distinguishing religion from philosophy (and particularly of the natural law philosophy).
 Hence, our assumption to the Ethiopian situation is that the natural law theory came to Ethiopia and shaped the
Ethiopian conception of law via religion.

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 The naturalist conception of law as the theory that determined the Ethiopian conception of law : The
foundation of the natural law theory is the belief that law is divine by its very nature, and that law is something
coeval with mankind itself. Therefore, when we attempt to look at this conception of law as the conception that
has shaped the Ethiopian legal history, we are, in effect, looking at the history of the natural law theory in the
Ethiopian milieu. This theory thus tells us that, just as in any other society, law has always been part of the
values of the Ethiopian society from the very early days of its formation. It naturally follows from this that a study
of the beginning of this conception of law in Ethiopia is dependent on the achievements of studies conducted on
the history of religion in Ethiopia.
 Then, what is the first religion to come to Ethiopia, and when did it come? Two religions may present themselves
as rival answers to this issue: Christianity and Judaism. However, the time of the coming to Ethiopia of Judaism
is highly controvertial, while that of Christianity is relatively not. Nonetheless, even if Judaism could win
precedence over Christianity, it cannot as such be taken as a point of departure for the naturalist’s conception of
law because it was a belonging of such a religious minority that it could not disseminate its doctrine to the extent
of having a significant place in the history of Ethiopian legal thought.
 Historians tell us that Christianity came to Ethiopia in the fourth century A.D. during the reign of Ezana- the first
Axumite king to be converted to Christianity and who ruled both as a pagan and a Christian king that Ezana had
ruled as pagan immediately before he was converted is, incidentally, a proof that Judaism did not precede
Christianity in Ethiopia at least as far as the ruling class is concerned. Christianity, as may be seen from this,
started from the top-the king-and began to flow down the hill to the subjects of the king.
 Thus, in Ethiopia, law began to be conceived as the will of one God with the coming of Christianity to the
kingdom of Axum. And the diversion of this conception of law was able to expend to the then population mainly
from the time of the translation into Geez of the Holy Bible by about the end of the fifth century A.D. With time
and, of course, with the expansion of Christianity, this conception of law was also sending its roots deeper and
deeper into the minds of more and more people. This role of Christianity was also getting support from the
influence of the developed thoughts of the Mediterranean world through the different commercial contacts that
Axum had with these civilizations.
 Whatever that supernatural power might have been called, therefore this conception of law was sending its roots
further deeper and deeper into the minds of the masses with greater momentum. And this all, it should be
repeated, is the result of the multi-dimensional contacts that Ethiopia had with the Mediterranean world and the
Arabian Peninsula since the ancient days. In short, the seed of the conception of law as the word of God, a
conception which seems to exist in the minds of a substantial majority of our people up to now, was sown and
grown with the raining of these religions from the clouds of the Middle East.
 The two important religions continued to be practiced in Ethiopia side by side-Christianity in most of the
highlands, and Islam in most of the lowlands of Ethiopia. But Christianity, unlike Islam, got from its very coming
to Ethiopia the status of being the religion of the ruling class or the state religion so to speak. As a result the
relation that Ethiopia had with the Mediterranean world and particularly of the church of Alexandria continued
with relative stability. The ultimatum, one may say of this relationship was the coming to Ethiopia of that historic
and monumental compilation called Fethea Negest in about the fifteenth century A.D. The Feteha Nagast a
collection of religious and secular laws was we are told compiled by Egyptian Christian called Abu’l Fada Ibn al
Assal commonly known as Ibn al-Assal. The book that was originally called collection of canons was compiled as
a guide for the Christian copts living among the Moslem people of Egypt. The Feteha Nagast though its position
as law strictly speaking may be doubted nobody doubts its contribution to the strengthening and further
expansion of the conception of law as having a divine origin in Ethiopia.
 Customs and their place in Ethiopia: Ethiopia is a home of diverse and disparate customs while we have more
customs than the number of ethnic groups themselves. This is so because even those groups speaking the
same language but living in different localities often practice very divergent customs. If we have only two major
religions and if even secular laws are taken as divine by origin then we logically expect that the followers of the
two religions practice in line with the religious precepts of their holy book-hence, only two important groups of
customs. This expectation though not in full accord with the reality is not without practical bases. There are
indeed these two major categories of customs however we have a series of serious reservations to this. One and
probably very obvious reservation is that Ethiopia also houses other peoples than Christians and Muslims-people
who may generally be called animists or pagans. This means, again in crude generalizations that a third category
of customs or paganism. And the various customs forming this category unlike those of the previous two should
be emphasized do not have as such any connecting threads. They are almost independent from one another. A
second and still important reservation to the expectation of two broad groups of customary practices is that the
people though belonging to either of these religions do not as such observe the precepts of the religions and this
is usually explained by writers to reflect the Ethiopian perception of the law as sort of ideal as something abstract
metaphysical and beyond practice. Professor Rene David has stated his view in a comparative fashion as follows
as in Europe before codification as in Islam, the law has a moral aspect for Ethiopians that removes if from
practical affairs. He has concluded from this that Ethiopians are not at all shocked that customs and court
decisions are not in accordance with the law.

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 The customs that have existed for a long period in the history of Ethiopia up to the present time are of three
types by origin-Christian oriented, Islam- oriented and indigenous. This triple heritage coupled with historical
interactions and mutual or reciprocal cultural exchange has shaped the customs that existed at the time when
the new all-inclusive codes of law were introduced in the first few years of the second half of this century. The
cumulative effect therefore of all this was that by the time the code came to life Ethiopia had customary practices
that varied from locality to locality and that mostly had different and in some cases contradictory ways of treating
the same problem. It was this ocean of diversity that the new laws were thrown into surely with the object of
unforgiving them around new ideals and of course of accelerating development.
 Western laws
 Historically, the major forces of the power elite in Ethiopia have been the Emperor, the feudal nobility and the
Church.
 For many centuries, Ethiopia has developed the tradition of rule by an Empress or Emperor. As the empire
expanded, there was an amalgamation of tribes into some concept of a distinct "Ethiopian" entity. Currently,
there are [several] tribes. Each tribe has developed its own distinct mores or law. Historically, emperors might be
strong or weak, effective or ineffective. As in the history of England, power alternated between a somewhat
centralized authority and feudal nobility. Transportation and communication were undeveloped until the late 19th
and 20th centuries, and thus there were strategic and logistical problems in the exercise of centralized power.
 Ethiopia evolved from Axum, a highly-developed, Christian, slave-owning kingdom. Nearly all the lands of
modern day Ethiopia were Axum's vassals.
 Traditional law-Ethiopia has within it several tribes. Each of these groups has an oral customary law which may
vary from group to group. Since Positivists indicate that written law is crucial to a legal system, Ethiopia's legal
culture may not meet the requirements of that definition of a legal system. No formalized or institutional courts
administered customary law until the end of the 19th century. Instead there was an informal hierarchy of
administrative and judicial arbiters, beginning with village elders and culminating in the Emperor's Chilot. The
Chilot was the court of last resort in which the Emperor dispensed justice without being necessarily bound by
law. It is said that the Ethiopians have traditionally been quite litigious, and have had numerous traditional rights
of appeal, with the Emperor exercising a final judicial power since the middle ages. Customary law was not
binding and could be disregarded by decision makers.
 The Fetha Negast, meaning "Laws of the Kings," was drafted in Egypt during the 13th century and introduced in
Ethiopia in the 17th century. The purpose of this code was to guide Christians living in a Moslem society. Written
in Arabic, the Fetha Negast was translated in Ethiopia into Geez. Geez, an ancient liturgical language, was the
language of the educated. The Fetha Negast was never consistently applied in Ethiopia, even where introduced,
and customary norms persisted despite its introduction. Because the Fetha Negast existed only in Geez, the
code was inaccessible to all but the highly educated. By the mid-1950's, the Fetha Negast was considered out-
of-date and it was unclear that it was applied with any regularity. Article 3347 of the Civil Code, in effect, repeals
the Fetha Negast. However, the Fetha Negast remains the text of the canon law for the Ethiopian Orthodox
Church and its tradition may continue to influence decisions today. At the time of Menelik (1889-1913), the court
structure was based on woreda-awradja political divisions. A court structure consisting of 14 provincial courts, 92
awradjas courts, with each awradja containing 243 woredas, was affirmed by Emperor Haile Selassie in 1942
and for the first time judges were appointed to all the courts.
 Introduction of western-based codes-The first Ethiopian Criminal Code appeared in the early 1930's. In the
1960's, a large body of law was introduced into Ethiopia consisting of codes imported from Western nations with
the Civil Law tradition. Between 1957 and 1965, six codes were enacted in Ethiopia: the Criminal Procedure
Code of 1961, the Civil Code of 1960, the Commercial Code of 1960, the Maritime Code of 1960, the Civil
Procedure Code of 1965, and the Penal Code of 1957.
 In sum, a study of the Ethiopian legal system reveals a large variety of state originated norms in an uncertain
relationship with each other and with customary norms. The prevailing norms appear to be unwritten and
customary, and certainly indigenous, rather than imported written norms. First, most relevant is traditional
customary law, which varies from place to place, and is unwritten. Second, and related, customary tribunals are
alive and well and their resolutions do not appear to be based on Code-originated norms. Third, there is an
overlay of imported Codes carrying the Western imported ideological baggage with, at best, uncertain
acceptance outside of Addis Ababa. Difficult translation problems of the Codes from French to Amharic, and the
lack of terms comparable to Western legal terms in Amharic further compound the problems. Moreover, as in the
Civil Law tradition, there are few reported cases, and those which are, are practically unavailable. And even if
found, with no stare decisis, the cases themselves need not be viewed as authoritative. Fourth, norms of the
Coptic Christian Church may be applied by church tribunals which may not be consistent with Code norms.
Finally, imported constitutional norms have also not fared well.

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 Does Ethiopia have a legal system?
 The learned Professor J. Vanderlinden opens an article he wrote in 1966-67 after the Codes were introduced into
Ethiopia with an intriguing sentence. "The main characteristic of the contemporary Ethiopian legal system is that
it does not yet exist as such."
 By contrast, Professor Sedler wrote, in 1967, that he found Ethiopia had accomplished a substantial start in the
creation of a modern legal system. Professor Sedler notes that the Ethiopian Constitution of 1931 set out that
judges should decide according to law, which was an important beginning. A state court system had developed,
and Western Codes had been enacted, though serious problems of implementation remained.
 To answer the question of whether Ethiopia has a legal system it is necessary to define a legal system. I
conclude that according to Legal Positivism, it is uncertain whether Ethiopia has a legal system. Also, according
to the natural lawyer orientation of Professor Lon Fuller, it is doubtful that Ethiopia has a legal system. But
according to other definitions, such as those of Professor Poposil, Ethiopia meets the criteria for having a legal
system.
 Modern positivism indicates Ethiopia has no legal system-In the West, Positivism is the prevailing mode for
conceptualizing legal systems presented by officials and professors. However, in United States academic circles,
Positivism exists in terrific tension with competing explanations. There exists so much controversy that in a
recent decision on abortion, three Supreme Court Justices openly argued that the legitimacy of the legal process
was at stake if the development of law were not given a greater appearance of coherence. The assault on
Positivism by American Legal Realists during the 1920's and 1930's has been revived, post-1977, by the Critical
Legal Studies Movement. It is startling to read that even a critic of Realism and Critical Legal Studies can
conclude that there is a consensus among the American academic community, left, right and center, that at least
as regards Constitutional Law, there can be no objective basis of morality discoverable from which to project an
interpretive strategy.
 The exposition of texts, constitutional or otherwise, is often indeterminent. Indeterminacy analysis strikes at the
heart of Positivist claims that by and large, a legal system is deemed to exist only if there is a discernable rule
structure which determines rights and duties. If the cases, codes, constitutions, and texts are indeterminent, as
this author believes, and no undisputed moral standards exist outside the text, formalists such as Positivists,
talking about a Rule of Law have a problem! According to modern Positivist definitions, Professor Vanderlinden
is correct: Ethiopia probably fails the "legal system" test. Viewed from another perspective, however, it is the
definition of modern Positivism that fails and is revealed as value-laden, mono-dimensional, and culturally
biased.
 In Ethiopia, the Positivist model for a legal system is not realized because as previously discussed, much of the
conduct in the society is not governed by official norms. The prevailing norms are customary or traditional.
Official norms are rules and precepts generated through official state organs such as the President, ministries,
parliament, the courts and so on. Thus, while state norms exist in profusion, it is not clear that they are taken
seriously, particularly with regards to the imported norms. The governing norms may often be unwritten and are
not derived from state sources. Thus, there are enormous gaps between the official norms and the actual norms
governing the conduct of society. Another way to look at these gaps is, in terms referred to by Ehrlich, as a gap
between the positive law and the living law.
 The question for Positivists becomes, how much of a gap can there be, consistent with the presence of a legal
system? For example, even the indigenous-based norms (the public law of Mengistu), did not affect the lives of
large rural areas which are defined as those areas one half day's walk from the nearest all-weather road. Yet, the
Ethiopian daily life is not chaotic. Society functions reasonably well on a day-to-day basis. Citizens know what is
expected of them. These expectations are largely realized despite the lack of any strong demonstrable relation
between many official norms and the behavior actually required. In significant instances, it is not that the official
norms were subject to erosion, but that the norms were never operative, and in some instances never intended
to be operative.

The preceding discussion would lead some jurisprudents to deny that such a regime had a legal system. Professor
H.L.A. Hart, the Oxford Positivist, might deny that a regime with a low correlation between official norms and
functionally operative norms has a legal system. It is fundamental to Hart's Positivism that the rules that govern
society be derived, to a significant extent, from the official norm structure. Law is to be separated from custom and
morality. Officially derived rules are to be applied by decision makers because they are the rules of the society, not
necessarily because of their inherent fairness. Officially derived rules may or may not be in accord with the custom
and morality of the society, but must be applied regardless. Hart defines a legal system as a system which is
composed of a union of primary and secondary rules. Primary rules are those rules which determine disputes and
guide citizen conduct. One analogy is that the primary rules of a legal system are like the rules in a rule book
governing a chess game. The most important secondary rule is the rule of recognition. The rule of recognition serves
to identify sources of primary rules. In our analogy, the rule of recognition would be that which identified the rule book

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as the source of primary rules governing the chess game. Hart argues that a legal system has a rule of recognition, a
social rule that makes a reference to sources of primary rules.

Suppose that, in our chess analogy, some of the rules in the rule book are not regarded seriously by officials. The
rule book contains some indigenous rules and others that are foreign imports placed there to give the local chess
game the appearance of progressivity without the substantive burden of the silly rules imposed by foreigners. Just to
make matters even more interesting, sometimes officials use the foreign rules, or at least cite to them. A Hartian
could point out that Hart did say that officials may have the "internal point of view" as regards the source of the rule of
recognition or at least, an attitude that the secondary rules are acceptable. But, arguably, officials in Ethiopia have not
had the internal point of view with regard to at least the non-ingenious based norms. There is evidence that Ethiopian
officials have not really accepted Western norms underlying the imported legal system. This is but another reason
that a Hartian could say that Ethiopia does not display the requisites for a legal system, which is so much the worse
for the Positivist criteria.

Where, as in Ethiopia, officials who make adjudicatory decisions may not justify decisions or where the sources
officials refer to in justifying decisions may bear little relationship to actual norms used in making decisions, the
Hartian system would be of very limited utility. Equally significant, there is a confusing array of norms officially
promulgated which are not used at all. Perhaps it is more accurate to describe the situation as one in which there is
an indefinite pattern of use of sources of official norms. There are comprehensive codes and there have been
constitutions referred to in some circumstances as an official justification for decisions, but ignored in other situations.
The Nagarit Gazeta, where law emanating from the state is published, cannot be the source for the Ethiopian rule of
recognition because laws set out there are not necessarily operative norms. A modern Positivist would have difficulty
finding a legal system in Ethiopia.

Professor Lon Fuller, who wrote from a Natural Law perspective, argued that there may be no legal system where
Rex (an imaginary king) promulgates a set of legal norms but then decides disputes on other grounds. Professor
Fuller stressed that the concept of law necessarily involves communication between officials and the people.
Professor Fuller referred to this as an aspect of the "internal morality of the law." That which masqueraded as law
was not in fact law unless the criteria he enumerated were observed.

In analyzing the early regime of the Derg, later dominated by Haile Meriam Mengistu, critical legal observers found
that the Derg displayed all the characteristics which negate a legal system, namely eight characteristics which Fuller
refers to as the internal morality of the law. These factors are described as excessive specificity,
incommunicativeness, retroactivity, incomprehensibility, contradiction, unfulfillable demands, capricious change, and
irrelevant administration. Professor Fuller indicated that it was important to have a correlation between official norms
and governing norms in order to aid communication between the ruler and the ruled. Thus, perhaps Fuller might not
be troubled if everyone knew that the official norm structure was there for other reasons, such as symbolism, or the
creation of a progressive appearance. Professor Fuller stressed the importance of official norms correlating
substantially with enforced norms because of the importance of citizens being able to plan behavior. But if everyone
either knows that the officials norms are inoperative or has no knowledge of them at all, Fuller's communicativeness
criteria may not be a problem.

My point is, however, a variation of this theme: At least since the 1930's Ethiopia's lawmakers have had
communicative intent only in specific instances in their lawmaking. Nor am I here concerned with the lack of
communicativeness that comes from vagueness. My concern is the need for a scorecard, so to speak, as an aid in
separating prevailing norms from the mass of competing norms. One starting point is to separate non-functional
norms, often foreign, adopted norms, whose purpose was symbolic or propagandistic rather than functional. The
Codes were aspirational in the sense that they are designed to alter social practices rather than to reflect them. But
the problems of such an approach for the Positivist paradigm is serious. It is as though someone said, "Here is the
rule book for chess, but please note some of these rules are aspirational; that is, it is improbable that officials will pay

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any attention to them in the near future. Some of the rules conform to existing customs (e.g., those dealing with
marriage and divorce), but others do not conform. Have fun figuring out which are which."

Other definitions of legal systems -- Professor Poposil`s definitions of what constitutes law and a legal system
abound. Professor Poposil, a specialist in legal anthropological studies, isolates four factors-- the presence of which
denote the existence of a legal system. These factors are: (1) adjudication or mediation; (2) sanctions; (3) obligations
or Hoffedian rights, and (4) future applicability of the norms established through conflict resolution. Poposil stresses
only those rules or norms arising out of conflict resolution, thus de-emphasizing rules in the abstract. Poposil makes
no effort to separate law and morality, custom and law, or adjudication and legislation. By Professor Popsil's criteria,
virtually all societies have a legal system, which was no doubt his intention. Professor Singer, a close and able
observer of the Ethiopian legal culture, defines law as does Professor Poposil: (1) an effective authority which need
not be governmental, (2) social attitudes considered to be law by the society, (3) affected persons recognize their
rights and duties, and (4) sanctions are present. Singer refers to the Amharic law as customary law, but notes that the
Amhara did not regard their law as customary since it formed the basis of the law of the new empire. If this definition
is accepted, the Ethiopian legal culture displays the relevant attributes of a "legal system."

Professor Brietzke states that the Rule of Law was not present in Ethiopia under the Emperor Haile Selassie.
Commentators on the Ethiopian legal culture observe that the idea that inflexible rules exist which govern disputes is
not traditional. The Fetha Negast was a guide only. The fact that the Ethiopian emperor could alter any court
judgment is taken as evidence that a Rule of Law did not exist. In summary, there does not seem to be a master rule
of recognition in Ethiopia which ranks potential sources of law as required by Professor Hart in his description of a
legal system. For example, during the Mengistu period, the grundnorm or master rule of recognition might be said to
be "Ethiopia Tikdem" (Forward Ethiopia). But the phrase was so vague as to be meaningless.

In Ethiopia, prevailing norms are often customary and unwritten. Professor Hart refers to a situation in which there are
no rules of change, adjudication and recognition as "primitive." Hart may have indicated that a regime with oral
customary rules may not have a rule of recognition, a necessary component of a legal system. Hart may also have
concluded that a regime in which customary law governed without official determination that it was authoritative did
not have a legal system. Finally, Hart would have a hard time finding a legal system under his criteria where there
was a huge gap between official norms and the operative norms which are in Ethiopian customary norms. In this
context it is ironic that the English Constitution itself is customary and "unwritten," not to mention American
constitutional practice. The Positivist John Austin stresses that law is the command of a sovereign backed by force.
Professors Scholler and Brietzke described the Mengistu state and its predecessor as exemplary of the Austinian
command Positivism: the orders of a sovereign gunman backed by force. Such a definition is helpful, but it cannot
avail modern Positivists because they strenuously reject it. Finally, Professor Poposil's definition is the only one that
clearly embraces the Ethiopian case, and accommodates the idea that Ethiopia has a legal system.

2. THE SOURCES OF THE SIX CODES

 Preliminary issues:
a. Source:
 There is a problem of insufficient information. There are no enough reading materials. Little
research has been conducted on the Ethiopian legal history. Even the little information
available on the Ethiopian legal history is not accessible. The information is recorded in the
French or Italian or Spanish languages. To access this information, obviously one has to
master at lease one of these languages. Some say that some of these pieces of information
are not reliable in the sense that they were recorded not by historians. Travelers and those
who had closer relationship with the palace and kings recorded this information. Thus, these
materials tended to be anecdotal or glorify the achievements of Ethiopian kings.
 The little recorded information on the Ethiopian legal system is unrepresentative. The
available information of the Ethiopian legal history does not say much about the various
legal systems of the kingdoms in the Eastern, Southern, western and southwestern parts of
the country brought under the umbrella of the central government in 19 th and 20th centuries.

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We know little about the features and developments of the pre-integration legal systems of
those kingdoms. We know also little about the fate of the legal systems of those kingdoms
after the integration.
b. Gaps:
 There are gaps between the official laws and unofficial laws. Here `official laws` means the
laws made by the Ethiopian government, which include the six codes as well as other state-
made laws. The official laws were and are transplanted essentially from the western legal
traditions.
 The term `unofficial laws` means legal rules and principles generated by the community;
laws that grow from below, especially the various customary laws that take hold on the
ground
c. Extent of accommodation:
 Ethiopia gave little space for the customary law systems in 1950`s and 1960`s grand
codification project. Generally, in 1950`s and 1960`s, Ethiopia did not assign sufficient roles
to customary laws.
 This is because first Ethiopia thought that recognition of customary laws would undermine
its international legitimacy. The western powers made their intention very clear via the
consular courts as well as via the consultative committee that they could not do business
with Ethiopia and Ethiopians without her laws being modernized. Second, Ethiopia thought
that recognition of customary laws would be anti-social and anti-economic progress.
Ethiopia thought that there were several customary laws inconsistent with the demands of
modern life in the country. Third and most important, Ethiopia felt that customary laws would
be against the project of modernization, which was planned to be implemented through such
strategies as industrialization, urbanization, assimilation, integration, centralization of
political power as well as legal unification on the basis of western codes. Customary laws
were taken to be misfits in this process; customary laws were associated with political
fragmentation. Customary laws were seen as undermining legal uniformity. Finally, the
customary laws were not sufficiently recorded to be of some help.
d. Legal structure:
 The codes adopted in 1950`s and 1960`s were not supported by a developed legal
structure. Legal structure is an element of legal system and refers to institutions such as law
schools, legal professional associations, executive, legislature, the judiciary as well as the
prison administration. It means all the institutions that engage in the study, refinement,
making, modification and implementation of the law.
e. Break in continuity:
 Some fifteen years after the coming into force of the modern codes, the country faced a
major ideological change.
 The codes assumed a forthcoming capitalist system; the codes assumed individualism; the
codes assumed that Ethiopia would follow the footsteps of the western market economy
systems. The codes assumed that the center of the Ethiopian legal system would be the
individual, i.e., the recognition and protection of the various legitimate interests of the
individual person such as his life, bodily integrity, property, reputation and the peace and
stability of the community. But the revolution assumed a major turn around; now the claimed
center of the legal system being the community.
 The codes were found out to be misfits in the process. The socialist government moved to
revise the codes completely in late 1980`s by establishing a body known as the Law
Revision Commission under the auspices of the Ministry of Justice. The socialist
government was overthrown before the Law Revision Commission brought its assignment to
fruition. Yet the codes were never repealed.
 The foundational assumptions of the codes were not the product of internal intellectual
(Ethiopian) discourse; rather such assumptions were debated about and articulated in the

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West and by western jurists in the course of several centuries. The codes did not have the
chance to be tested continuosly and for a relatively longer period of time owing nearly two
decades of idological change in the legal system of Ethiopia following the 1974 Revolution.
f. The political landscape:
 The Ethiopian formal legal system was remade several times. The reordering was a major
one. If you focus on the making of constitutions, Ethiopia introduced a constitution in 1931,
which was a theocratic constitution. Ethiopia had got a revised constitution in 1955, which in
essence was the same as the ideals of the 1931 Constitution. Then in the year 1974,
another constitution was drafted but was not put in place for the revolution took over
situations. In the year 1987, a new constitution with different basic assumptions was put in
place. Finally in the year 1995, the FDRE Constitution was adopted. The 1931, 1955, 1987
and the 1995 introduced basic re-makings of the Ethiopian legal system. These
constitutional exercises within 70 years also led to changes in the subordinate legal
documents.
 The root cause of these fundamental shifts in the Ethiopian legal system lie in the differing
interpretation of, by the key political actors of the past and today, the 19 th and 20th integration
of the several kingdoms under one central authority.
 There are three ways of understanding the historical process of bringing the various entities
together in the past two centuries. Emperor Hileselassie I and his supporters understood the
process as a re-union or expansion. They argued that prior to 19 th and 20th centuries
Ethiopia lost territories as a result of wars and migrations. And in 19 th and 20th centuries,
Ethiopia successfully regained her lost territories. These actors worked to bring about
political centralization. They used western oriented codes. They used the methods of
assimilation and integration to unify the country. The 1931 Constitution and the next
constitution were designed to implement the state policy of political centralization as well as
legal unification. Their concern was political disintegration.
 The second group of personalities understood the historical process of bringing multiple
ethnic groups 19th and 20th century in Ethiopia as a problem of class exploitation. The issue
was not ethnic exploitation. The economic elites, who were few in number, oppressed the
mass. The various groups brought together under the umbrella of the central government
suffered injustice in the hands of the economic and political elites. The solution sought was
to end this exploitation by building a communist society in the country. Ethiopia was led for
about 17 years by the advocators of this view. As the promoters of the re-union approach
remade Ethiopia, the promoters of the second view, called the conquest approach,
reordered the Ethiopian polity.
 The conquest approach has two models. The first model is the model that thinks that the
main problem is class oppression whose solution is to eliminate this exploitation by
constructing a classless society. The second model in the conquest approach thinks
that the main problem is national exploitation. The various previously autonomous
entities, once brought together under the authority of the central government, were
subjected to humiliation. The solution proposed was to accord true self-rule especially in the
form of an ethnic based federal state. The second model is reflected in the FDRE
Constitution.
 The third approach thinks that the problem lies not in lack of centralization, as the first
approach thinks, nor lies in class and ethnic oppression. The key problem is colonialism
whose solution should be independence. The historic Ethiopia also called Abyssinia
colonized the ethnic groups located in its eastern, southern and western parts. The
proponents of this view of the Ethiopian history would like to settle for not less than political
independence.
g. Two senses of the term sources of law:

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 The term `source of law` has a couple of connotations. One sense of the term might suggest
all the pieces of information used in the preparation of a legal document. A legal document
may be a constitution, a proclamation, a regulation, a directive, a testament and any other
legal document. This sense of the term is also referred to as a material source. Material
source of the document may be obtained from public opinion, pertinent books, experts, past
legislation, foreign sources and research, etc.
 Secondly, the term refers to the reason for a given legal rule is valid or must be respected.
The French legal system attributed the source of law to the legislature. The French pattern
was followed in the German legal system. The Islamic legal system thought laws to come
from a supernatural entity, Alah. The Confucian legal system believed a prophet, Confucius,
has to do with the creation of binding legal rules. The socialist legal system has taken the
communist party as the sole source of law.

Sources of the six codes:

1. Equity:
 Equity is one of the legal standards in law. As any other legal standards such as reasonable
person, prudence, beyond reasonable doubt and good cause, equity has the feature of
elasticity of meaning.
 Equity fills the unavoidable gaps in the positive law and, in its absence, governs the case.
(See: Articles 2099 to 2103 & 2172 of the Ethiopian Civil Code).
 Equity is applied in two major situations, namely in case where the law is very clear, not
ambiguous or vague, but its direct application causes harsh consequences. The other
situation is the case where the law does not say anything about the matter but the
dispute must be settled. Some describe equity as natural justice or fairness or common
senses.
 Before the revision of the Ethiopian family law an irregular union did not have any legal
effect. In cases where a man and a woman lived together without a formal marriage and
terminated their relationship, the man would be required under equity to give a-three-month
maintenance to the woman. To offer another example: in the Ethiopian extra-contractual
law, the judge is expected to consider equity in assessing damages.
 Equity can be applied to mitigate the harshness of the application of a given legal rule.
 In its general sense, equity refers to the power of the judge to mitigate the harshness of
strict application of a statute, or to allocate property or responsibility according to the facts of
the individual case. Equity is, in other words, a limited grant of power to the court to apply
principles of fairness in resolving a dispute being tried before it. It is a recognition that broad
rules, such as those commonly encountered in statutes, occasionally work harshly or in
adequaltely, and that some problems are so complex that it is not possible for the legislature
to dictate the consequences of all possible permutations of the facts. Where problems like
these are involved, it is thought better to leave the matter to the trier of the case for decision
according to equtable principles. Equity is thus the justice of the individual case. It clearly
implies a grant of discretionary power to the judge.
2. Religious percepts:
 The drafters of the Ethiopian codes, it is argued, drew principles from the two religions:
Christianity and Islam.
 The Penal Code rests on the general principle that you should not harm the interests of
another. The Civil Code also upholds this percept. In general, the same may be claimed in
respect of the Commercial Code.
 The holy books of the two religions prohibit a person from causing harm to the life, property,
the good name of and physical integrity of another person.

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 The codes go beyond threatening a person who fails to respect these admonitions with the
sanctions of reproach and of hell; the codes attach sanctions in the form of compensation or
sentencing or fine or a combination of these three sanctions.
3. Natural law:
 The principle of natural law was, it is argued, used as an inspirational source of the
Ethiopian codes. This principle has been invoked as higher principle since the Greek legal
system. Over time, the meaning of the principle of natural law has been controversial.
 There is one position that thinks that natural law is absolute in the sense that its principles
are not bound by time, place and situations.
 The principle of natural law is thus universal, eternal and immutable. The other view is that
natural law is subjective and relative in the sense that natural law principles are particular,
temporal and changeable. As to the origin of natural law, some attributes it to God; others to
human reason and still others to nature.
4. The Fetha Nagast:
 This religious document was brought to Ethiopia in the middle of 15 th century during the
reign of Emperor Zerayacob, who was responsible for the transplantation of this venerable
document. According to the predominant view, a Coptic Church scholar named Ibn Al Assal
created the document in 13th century.
 The document was compiled in Arabic language and named Nomo Canon. Ibn Al Assal
used the principles of Christianity, the principles of Byzantine legal tradition and the
principles of Islamic commercial law. The name Fetha Nagast (the Law of the Kings) was
given to the Nomo Canon after it reached the Ethiopian soil.
 The Fetha Nagast consisted of religious and secular parts. The Fetha Nagast was translated
by church scholars into Geez in the middle of 15 th century; it was also translated into
Amharic in the middle of 20th century again by a church scholar.
 The following may be cited as the contributions of the Fetha Nagast to the Ethiopian legal
system.
 Kings and emperors in the highland parts of the country used the document to obtain
legitimacy of their respective rule. They argued that they came to political power by
following the procedures described in this venerable document.
 It served as the valid source of dispute settlement both in the church affairs and secular
matters.
 Certain principles of commercial law were taken from it and incorporated in the Ethiopian
Commercial Code. Some rules and principles were also drawn from it and included
directly in the 1930 Ethiopian Penal Code and via the latter in the 1957 Ethiopian Penal
Code.
 The application, interpretation and translation of the document helped the Ethiopian
Orthodox Church build church scholarship.
 It helped the development of methods of statutory construction. Three modalities of
interpretation of legal rules were generated: interpretation by way of listing, interpretation
on the basis of the spirit of a legal document and interpretation on the basis of context.
 It was a step forward in the development of a rudimentary concept of the rule of law. The
document sent the message that the rules of the game should be written in advance
even if it was not accessible to the wider public in terms of language and association
with the clergy.
5. Cases:
 On two occasions, Ethiopia compiled past decisions, in 1908 by Emperor Menilike II and
1950`s by Emperor Haileselassie I.
 The first attempt at compilation of judgements was made for the purpose of enhancing
predictability in the legal system of the country. The latter compilation of past decisions
was made with the view to giving information to the drafters of the six codes.

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 And compilation of past decisions immediately before the codification project in Ethiopia was
called the Digest of the Old Ethiopian Judgments.
 The decisions compiled in the 1908 and 1950`s were made by kings, emperors, courts, the
consular courts and customary tribunals. The decisions were made on the basis of
customary laws, decrees, equity and the Fetha Nagast.
 Some of these decisions were found orally and while others were already on record. The
compilations were not systematic in the sense that distinctions and sub-distinctions between
substantive and procedural, and between public and private laws were not made.
 These compilations were believed to have been consulted by the drafters of the Commercial
Code, the Civil Code and the Penal Code.
6. Statutes:
 Pre-codification statutes were used as information in the making of the Ethiopian codes. In
1920`s, early 1930`s and 1940`s Ethiopia passed several statutes. The following may be
cited as examples: the nationality law, company law, loan law, bankruptcy law, business
registration law and banking law.
 The 1930 Nationality Law was in force until recently. The Ethiopian Nationality Law of 1930
adopted the principle of Jus Sangunis which states that a person gets the nationality of a
country if s/he is born into an Ethiopian father or Ethiopian mother. The other basic
nationality principle, called Jus soli, states that a person gets nationality of a country where
s/he is born.
 The drafters of the Civil Code and the Commercial Code used provisions of these statutes.
 These laws were incomplete and unsystematic. The statutes were developed in a response
to a particular legal problem. These statutes concentrated on the area especially of
commercial laws and to a minor extent on public law.
7. Treaties:
 Ethiopia entered into several international treaties with Italy, France and Great Britain.
 Treaties may lead to capitulation. Capitulation refers to surrendering part of the sovereignty
of a state.
 Egyptians occupied Harar from 1875 to 1885. They brought their own laws particularly in
areas of land and tax laws and applied them in Harar. Laws designed by Italy for her African
colonies called “Africa Orientale Italian’ was applied in Eritrea from 1890-1941. And the
Italian colonial law was imposed on Ethiopia by Italy from 1936 – 1941.
 Manifestations of capitulation in Ethiopian were: (a) Consular courts: tribunals set-up
pursuant to international treaties at the consulate level by the super powers to dispose of
civil and criminal cases arising in the host country but involving exclusively foreigners. (b)
Mixed courts in which judges of the host country (Ethiopia) and foreign judges sat together
to hear and dispose of civil and criminal cases involving the nationals of the host country
and foreigners. Typical examples of capitulation treaties were: 1849 treaty between Britain
and Ras Ali, 1883 Treaty between Menelike II and Italy and 1908 Franco-Ethiopian Treaty.
 In 1908, a serious disagreement broke out between Great Britain and France. France
supported the establishment of a mixed court, where Ethiopian and foreign judges would sit
to decide cases involving foreigners. On the other hand, Great Britain argued in favor of a
court manned by international judges on the grounds that to do so was: less expensive,
much simpler, much more likely to be accepted by all members of the foreign communities,
and under the mixed court, ultimate auhtoirty would rest on the Emperor.
 Their argument was rejected and in 1922 special (mixed court) was established pursuant to
a decree which lasted until 1936. After liberation (1941), the special courts were not re-
instated. Upon restoration of freedom, the country faced pressure to conclude a treaty
assuring the protection of the interests and well being of foreigners in Ethiopia since the
foreign countries argued that both the 1930 Penal Code and the 1931 Constitution of
Ethiopia were found to be inadequate to safeguard the interests and well being of their

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citizens residing or would like to do business in Ethiopia. Ethiopia consented to appoint
judges recommended by Great Britain and to create a committee composed of British and
Ethiopian members to see whether a draft law would be contrary to the principles of natural
justice. The committee established in 1942 and continued until 1955. The Committee was
called the Screening Committee or the Consultative Committee.
 Consular courts amounted to a limitation on the territorial jurisdiction of Ethiopian and the
mixed or special courts legalized the participation of foreign laws in adjudicating cases
arising in Ethiopia. The net effect of both of them was however acceptance of the
capitulation policy of the then major powers. The material effect of the establishment of the
special court was that it served as a forum in which the ancient Ethiopian legal system had
to confront sophisticated modern foreign laws.
8. Customary Laws:
 Customary laws were used, to some extent, as a material source of the Ethiopian codes.
The orthodox view of customary law is that a practice habitually followed by the majority of
the members of a given community for a relatively longer period of time with the intention to
be bound by it.
 Customary law is diverse. We can say that there is diversity in the area of land law, family
law, succession, and homicide law and dispute resolution in Ethiopian customary laws.
 It is argued by some that customary laws can easily and substantially be disregarded in
contract law, administrative law, penal law and labor law because either there are no
customary rules in these areas, or even if there are, some customary rules are so crude and
not highly entrenched.
 The argument is that personal laws such as family matters and succession are highly
embedded in the fabric of traditional societies such as Ethiopia that it would be very difficult
to modernize this area of law. On the other hand, in the areas of public law and commercial
law, the promise of successful importation of laws would be upheld.
 Professor Rene David, the drafter of the Ethiopian Civil Code argued that he included a
number of customary rules. He stated that he used several methods to do so. One method
is incorporation. The term ``incorporation`` refers to the direct writing of a given
customary rule into a code. He stated that he incorporated customary rules if those rules
met the following criteria. Incorporation of custom took place when the custom was
sufficiently general as to be practiced by at least a majority of the highland
population, when the custom was not repugnant to natural justice which permeated
that ultimate old authority, the Fetha Negast, when custom was not contrary to
imperatives of social and economic progress and when the custom was sufficiently
clear and articulate as to be capable of definition in civil law term.
 The second means the Professor used to give room for custom is explicit reference to
custom.
 The third strategy the drafter of the Civil Code used was to give a gap-filling role to
custom. The idea was to state that whenever the Code is silent about a given issue, custom
might step in. Article 3347 is designed to play this role.
 Fourthly, judges are permitted to attach customary meaning to disputable code terms.
You may, for example, look at Article 1168 of the Civil Code. The meaning of the term
``family`` in this Article can be ascertained by reference to local custom.
9. Fewese Menfesawi:
 The first known code of law in the country is called Fewese Menfesawi. This was essentially
a religious document.
 Emperor Zerayacobe had this document prepared in the middle of 15 th century. This was a
step forward in the codification process of the country, as the emperor thought that to
legitimatize his empire pre-determined legal rules were necessary.

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 The application of Fewese Menfesawi, prepared by church scholars, under the order of
Emperor Zerayacobe, was short lived, since the emperor had heard about the existence of a
document of superior quality in Egypt. This document is called the Fetha Nagast. He had
brought the latter partly religious and partly secular document and had it translated into
Geeze, using church scholars.
10. The 1930 Penal Code:
 The 1930 Penal Code got its inspiration from the Fetha Nagast.
 The Code of 1930 represented the first effort to unify and to systematize Ethiopian traditions
in criminal matters. The 1930 Penal Code combined customary with comparatively more
modern concepts. The Code took as its source from the Law of the Kings (Fetha Negast)
and from advanced European penal codes.
 The Fetha Nagast and customary laws remained the basis of criminal judicial procedure until
1930. In the year 1930, Emperor Haile Selassie I introduced a penal code.
 The 1930 penal code was primitive in its application since there were several defects in its
contents. The 1930 Penal Code aimed at modernization of the administration of the
Ethiopian criminal justice system.

The Background to the Six Codes

 In early 1950`s, Ethiopia sought to depart from the prevailing diverse and incomplete
customary laws; the country desired to respond to international ciritisims directed against
her legal system which was based on haphazard and incomplete customs and equity as well
as some statutes. Ethiopia, on her own, was ready to embark on the task of modernizing her
legal system. This modernization venture was the one desired to look not internally and but
outwardly, i.e., a decision to transform Ethiopia on the basis of western laws.
1. The decision to modernize laws:
 Ethiopia made a decision to modernize its laws in 1950`s. Many factors dictated this policy
decision.
 The capitulation doctrine affected Ethiopia, through the establishment of the consular
courts. The doctrine states that a country should surrender some features of its sovereignty.
Some of the judges of the consular courts were foreigners; the laws applied therein were
made by foreign powers and the parties to these courts were foreigners and Ethiopians.
 The Screening Committee also referred to as the Consultative Body was established to
check whether draft laws by the Ethiopian legislature would offend the principles of natural
justice or equity.
 The application of the Revised Constitution also warranted the issuance of detail laws.
 The mixed courts, as a specific application of the theory of capitulation, the
Consultative Committee and the the need to work out the details of the Revised
Constitution led Ethiopia to make a decision to upgrade its legal system. In this regard,
moreover, the stress in the writings of Ethiopian intellectuals of the day (also referred to as
Ethiopian Japanizers) on the need for a comprehensive legal reform could be regarded as a
contributory factor.
2. The model adopted:
 Having decided to modernize its laws, the next step the country had to take was adopting a
model.
 The country preferred to design her laws predominantly after the civil law system. The
adjective predominantly is used here to indicate that other sources were also consulted. For
instance the Ethiopia legal system in general and the six codes in particular were taken from
multiple sources.
 As a result, some legal historians suggest that the Ethiopia legal system is a confluence of
multiple legal traditions. The codes were influenced by common law and comparative law.

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3. Justifications:
 Several reasons are offered for Ethiopia’s option for basing her codes primarily on the civil
law model.
 The country’s exposure to codification: Fewese Mefesawi was regarded as a code.
The Fetha Nagast was also taken as a form of a code. The 1930 Penal Code was
another example. There were several statutes issued in 1920`s, 1930`s and 1940`s. The
experience of Ethiopia under Italian occupation for five years did not detach it from the
code system, as Italy put in place a code called Italiana Africa Orientale.
 Convenience and expense: The key personalities of the day thought that to transport
cases from England or the United States of America would be costly and most
inconvenient. Instead, they assumed that codes could be transplanted with greater ease.
 In the third place, the same key personalities of the day had had sentimental attachment
to France and French legal education.They liked the French approach of modernization
of laws. Codes taken from France and Germany to the other parts of the developing
world were found to be successful. The argument was that if codes transplanted to
countries similar in context with Ethiopia already became a success, then there would be
no reason for the same codes not to meet with success in Ethiopia.
4. Policy instructions:
 Following the decision to modernize her laws and after adopting the policy position of
designing her laws after the civil law model, the next step was to form a body responsible for
accomplishing the actual task of codification and giving policy directions to the same.
 Emperor Haileselassi I, offered policy guideline to the members of the Codification
Commission and to key foreign draftspersons. You find these guidelines in the prefaces of
the Ethiopian Commercial Code, the Civil Code and the Penal Code.
 The Emperor directed these persons first to take rules mainly from the continental legal
system. But he gave them discretion to take rules from any sources so far as they were
convinced that these legal rules and institutions would promote the best interest of the
country. Second, the Emperor advised members of the Codification Commission and the
drafspersons to endeavor to adapt these legal rules and institutions to Ethiopia’s
situation. In third place, he instructed them to incorporate customary laws and
traditional legal institutions of the country.
5. The position given to customary rules:
 On the issue of whether tradition was disregarded or adequately incorporated into the code,
there are different views.
 Emperor Haileselassie I believed that the codes, especially the Civil Code gave adequate
place to customary laws. He expressed this idea in the preface of the Civil Code and in his
address to the Codification Commission on the completion of the codification project. The
Emperor`s policy direction delivered to members of the Codification Commission in general
and the drafters in particular states that “the genius of Ethiopian legal traditions and
institutions as revealed by the ancient and venerable Fetha Nagast, natural justice and the
needs and customs of the people must be incorporated; that law must be clear and
intelligible to each and every citizen of our empire; the laws must form a consistent and
unfired whole; must be that which keep pace with the changing circumstances of this world
of today.” Upon the completion of the codification project, the Emperor confirmed that his
instructions had been properly observed.
 Professor Rene David also joined hand in supporting the Emperor. This draftsperson argued
that the essence of the Civil Code lies in the sufficient incorporation of traditional legal
institutions of the country. Rene David thinks that the areas of family law, tort law and
property law of the Civil Code are significantly influenced by the customary rules then
prevalent in the country. To the draftsperson, the only cases where he did reject customary
rules were those that, in his opinion, would conflict with the demands of modern life in the

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country and those that impede the social and economic progress of the country. Rene David
was in the opinion that the active participation of influential and knowledgeable person at the
various stages of the codification, e.g., in the Codification Commission, in the Council of
Ministers and in the two chambers of the parliament, assured the sufficient indignization of
the Civil Code.
 There are, however, those who think that customary laws were not given the place they
deserve. They raise the following points. If customary laws then prevalent were given proper
place, why has the Civil Code not got the acceptance of the addressees some 40
years after its coming into force? They think that defective transplantation should explain
the absence of legitimacy on the part of the provisions of the Ethiopian Civil Code. The other
justification provided is the fact that customary laws in Ethiopia were not sufficiently
recorded prior to and in the course of the codification process. The other factor
mentioned in support of the position that there are reasons not to believe that the Civil Code
adequately included the traditional legal rules and institutions is that the code provisions
themselves; there are few provisions in the Civil Code that assign some roles to
customary laws. Finally, the main justification for the limited role assigned to customary
laws is the general policy stance of the then government. The basic policy was to bring
about legal unification via a general codification of laws in line with the civil law tradition.
Legal unification through western style codes was aimed at facilitating the intended political
unification, assimilation and integration of the various groups in Ethiopia.
8. The Codification Commission:
 The Codification Commission was established to actually carry out the tasks of codification
as well as supervise the works of the foreign draftspersons.
 The Commission was composed of 29 members, some foreigners and some Ethiopians.
 The Commission had divided itself into sub-committees. Each subcommittee was assigned
to work closely with a foreign draftsperson. When the sub-committee finished the assigned
task, the wok was submitted to the Codification Commission. The Codification Commission
deliberated on the draft document and upon approval passed it to the Council of Ministers.
From the Council of Minister, the draft documents were sent to the joint meeting of the two
chambers. Finally, upon the assent of Emperor Haileselassie I, the draft documents
obtained the status of law.
 This pattern was followed in respects of the Civil Code, the Commercial Code, the Penal
Code and the Maritime Code.
9. The Ethiopian Civil Code:
 In terms of size, the Civil Code, as compared to the French Civil Code and the German Civil
Code, is the largest comprised of more than 3,000 articles.
 The Code, on several occasions, is not concerned with economy of words. There are
repetitions here and there. These repetitions are deliberately made.
 The size of the code is a deliberate construct; it was not done by accident. The reason given
for the bulky nature of the Ethiopian Civil Code is lack of a developed legal structure in
the country; the drafter aimed at contextualzing the code.
 The Civil Code, like the case of the other codes, was written for the future as well as the
then existing context. The idea was that Ethiopia would head for the market economy. In the
context of a fully developed market economy, several legal disputes would crop up and the
code provisions would easily capture this future development of the country.
 In the context of the Commercial Code, the draftsperson observed that: ``above all it is
essential to insist on the need to prepare a commercial code for Ethiopian which not only
takes into account the present economic development of the country but also will encourage
Ethiopia’s future economic evolution. Thus one can consider it as a truth difficult to contest
that the future Commercial Code of Ethiopia must be able to adapt itself easily to the
unplanned transformations, which will probably take place in the commercial and economic

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life of the country at a rapid rate during the course of at least a generation, if not a half-
century. ``
10. Sources of the Ethiopian Civil Code
 Rather than associate the idea of law with the infinitely varied and always disputable
customary rules, Ethiopians have connected it with compilations that were assumed to
reflect great wisdom and eminent dignity.
 Ethiopians see the Fetha Negast as The Law, even though their customs and conduct do
not strictly conform to its commands. For them, court decisions in disputes cannot embody
The Law; since such decisions must be expedient and practical. Neither could The Law be
defined as the prediction, even if sufficiently certain, of the solutions that the judges might
give in future litigation. As in Europe before the codification, as in Islam, The Law has a
moral aspect for Ethiopians that removes it from practical affairs. It is a basis for social
order, closely connected with the moral commands of religion. Ethiopians are not at all
shocked that customs and court decisions are not in accordance with The Law. That is seen
only as proof, alas wholly unnecessary, that society is imperfect. What would shock them
would be for the sovereign, by adopting these customary rules, to require of them behaviour
which is indeed their own, but whose reprehensible character recognize fully and on
occasion deplore.
 The preceding considerations explain the importance and role of both Ethiopian and foreign
sources in the Civil Code of Ethiopia. Its authors wanted the new code to correspond to
what Ethiopians consider just, but at the same time they had to create a useful work. Thus,
they tried to renovate, modernize and supplement Ethiopian customs by utilizing
comparative law. The Ethiopian feeling for justice is the basis of the Code. No rule in the
Code violates this feeling. The dispositions of the preliminary draft, prepared by a foreign
jurist, were rejected or modified whenever they seemed contrary to it, even when the foreign
advisor considered them just and advantageous for Ethiopia. Let us look at some examples
of this process.
 Where there was no international statute or draft statute, it was necessary to start from the
various national laws and develop rules to regulate the subject as seemed best. The
principal sources that were used in this way were the civil codes of Egypt, France, Greece,
Italy and Switzerland. In the area of obligations, the author of the preliminary draft gathered
together the provisions of these five codes, for the most part in order to supplement each by
the others. He endeavored to make the code as complete as possible. To this same end
he went beyond the codes and considered some non-code statutes and treatises. This was
necessary because of the absence of judicial decisions or scholarly writings that could
otherwise have filled the gaps in the Ethiopian Code. The authors of the Ethiopian Civil
Code did, however, readily eliminate provisions contained in foreign codes where they
seemed either to deal with questions of no practical importance, to introduce uselessly
subtle distinctions, or to deal with situations peculiar to the foreign country that do not exist
in Ethiopia.
 Finally, it should be added that some parts of the Ethiopian Code are “original” in the sense
that they are based neither on Ethiopian customs nor on provisions of foreign legal systems.
Of particular note are the rules governing water rights, those on registers of civil status, and
to a lesser degree the provisions on registers of immovable property, guardianship, and
wills. In these areas, it was thought imperative to establish rules, but the Ethiopian customs
did not offer a solid basis for the rules and the regulations found in western countries were
unsuitable. Creative legislation was therefore required and it seemed possible to integrate it
into the code’s general system.
11. The 1957 Penal Code:
 In 1950`s, Ethiopian criminal law was mainly contained in the Penal Code of 1930.
Subsidiary legislation published in the Official newspaper (Negarit Gazeta) supplemented

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the code provisions. But by then, the conditions in Ethiopia had changed since 1930. It was
also expected that conditions and laws had to change in the future.
 Ethiopia also made a decision to modernize all areas of her laws. Some of the
shortcomings of the 1930 Penal Code also became an additional factor for Ethiopia to revise
her penal code. For example, the 1930 Penal Code lacked in general principles. It showed
too many traces of the ancient and formalistic conception of the criminal law with regard in
particular to attempts, participation, excuses, aggravating and extenuating circumstances,
the imposition of fines, the punishment for injuries to persons. The code was also
incomplete and out of date in matters such as criminal responsibility and guilt, the treatment
of juveniles and habitual offenders, probation, and the like. These considerations led
Ethiopia to replace the 1930 Penal Code. The primary objective of the Code was to meet the
needs of a developing nation. A British legal expert drafted the 1961 Criminal Procedure
Code, which supplemented the 1957 Penal Code. The former was based on the Swiss
Penal Code and many secondary sources. The latter reflected the influence of English
common law.
 Professor Jean Graven prepared a draft of the revised penal code based on the civil law
tradition. He adopted the civil law tradition after he received instruction from Emperor Haile
Selassie I and after he deliberated with the Codification Commission. The code also
included “the contributions of the most significant systems of jurisprudence in the world of
today”. This means, the code incorporated some legal rules seen as best even if they came
from the common law system and from comparative law. The model adopted in preparing
the revised Penal Code of Ethiopia was also applied to the preparation of the other codes.
The revised Penal Code did also take some traditional perspectives into account, for
example, in the areas of arson and bigamous marriage.
 Jean Graven submitted his draft in French to the Codiffication Commission. The
Commission was composed of Ethiopians and foreigners. After review and some alterations
by the Commission, it was then translated into Amharic and English. The Code was officially
adopted in 1957. It was modeled after continental penal codes, primarily the Swiss Penal
Code.
 The main domestic sources used in preparing the revised penal code were: the Fetha
Negast, the 1930 Penal Code and the subsidiary legislation published in the Negarit
Gazeta. The Codification Commission considered the Fetha Negast. The Fetha Nagast was
taken into account because it contained several prescriptions of a penal nature. It was taken
into account because it was taken as the source of Ethiopian legal tradition. The other
reason for the drafters taking the Fetha Nagast as a source of the Revised Penal Code was
that it had a number of fundamental principles that had to be taken into account in the
drafting of an Ethiopian penal code. An instance of such basic principles was the essentiality
of guilt.
 In addition to these national sources, foreign sources had been used. The foreign sources
came mainly from European penal codes. The country preferred European codes because
the Codification Commission thought it consistent with the country’s tradition. The 1930
Penal Code adopted the European model and the Fetha Nagast also preferred the codified
law approach. This does not mean that the Anglo-American model was not considered at all.
Some areas of the Revised Penal Code were of British origin. For example, matters relating
to juveniles, suspension of sentences and probation etc. came from the English legal
system.
 One can cite the following specific European penal codes: the Italian (1930), Swiss (1937),
Greek (1950) and Yugoslav (1951) penal codes. The Swiss Penal Code was the primary
source for many reasons. The Swiss Penal Code had deep and lasting influence in and
outside Europe. Second, the Code ranked among the most recent Codes as it was partially
revised in 1950. And the Swiss Code was drafted to apply to conditions somewhat similar to

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those in Ethiopia (diversity of people, languages and legal traditions). Certain provisions of
the Ethiopian Code either are directly derived from the Swiss Code or incorporated views
expressed by Swiss courts and legal writers.
12. The Commercial Code:
 Multiple considerations dictated the adoption of a comprehensive, systematic, clear and
solid commercial law in Ethiopia in 1950`s and 1960`s.
 With the increase in the number of cities and towns along Ethio-Djibouti railway, the
increase in the number of people with interest in commerce and possessing managerial
skills and the developments attendant to the Italian occupation, the country witnessed a
gradual increase in its commercial life. It was rightly realized that these emerging
commercial activities in the country could not adequately be governed by the then existing
incomplete and unsystematic laws as embodied in the Law of Companies (1933), the Law of
Bankruptcy (1933), the Law of Loans (1924), the Law on Registers of Commerce and the
few commercial rules in the Fetha Nagast.
 The available court cases were found out to be unsatisfactory on accounts of lack of
comprehensiveness, of consistency and of accessibility. At the time the country did not have
comprehensive and systematic contract rules.
 The government desired not only to regulate the then nascent commercial activities in the
country, but also it desired to capture future commercial development, as the drafter made it
unambiguously clear, the commercial law Ethiopia adopted was a forward looking law. The
state earnestly wished to collect revenue through the instrumentality of commercial devices.
Therefore, these considerations led to the adoption of a commercial code to meet the old
age basic needs of commerce: predictability and sanctity of contracts.
 The key client of the codification project in Ethiopia was Emperor Halieselassie I who also
directed the draftspersons to take from every best aspects of the law of commerce of any
country so long as such laws were found out to best suit Ethiopia’s need. Owing to the
influence of the instrumentalist approach to the relation between law and society, the policy
direction given to the draftspersons and the natural vacuums in customary laws and the
specialty of the persons whose services were sought, the Ethiopian Commercial Code
heavily drew both on continental and common law perspectives.
 The specific domestic documents consulted were the Fetha Nagast, Laws on Loans, Laws
on Registration, Laws on Bankruptcy, Laws on Companies, court decisions, commercial
practices and experiences while international conventions, insights of the drafters and the
commercial laws of some foreign countries such as Switzerland, France and England were
considered.
 As to the relation between the Commercial Code and the Civil Code, Ethiopia preferred to
come up with two separate but related codes deviating from the unification in a single code
of commercial law and civil law opted by Switzerland and Italy. The legal connection
between the two codes is established in Articles 1 and 1677/1 of the Commercial Code and
the Civil Code, respectively. These stipulations make it clear that on commercial dealings
the former preempt the latter while in the case of civil dealings the latter prevails over the
former. Because of its comprehensive character, in the case of gaps, the Civil Code plays
gap-filling role. In the words of Escarra, ``the Ethiopian Commercial Code contains, on the
one hand, specifically commercial institutions, and, on the other hand, by reference to the
Civil Code, the general rule of law for those contracts and obligations which apply to both
traders and non-traders, with the exception of a small number of cases…``
 The Commercial Code of Ethiopia was designed to facilitate the creation and sustenance of
capital and managerial skills in the belief that such capital and business know-how would in
aggregate better off Ethiopians in general, not just to enrich persons of wealth.
 Armed with this commercial policy, the state issued several laws including that which
nationalized rural and urban land, extra-houses in towns and cities, and mass

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nationalization of private businesses, limited the number of businesses a private person
could run to one and with a limited amount of capital and prohibited private persons form
engaging in certain economic activities, etc. The net effect of the revolutionary thesis on
commercial matters was stifling private initiatives and opening a wide avenue for a transition
from business associations to cooperatives and state enterprises.
 The development of commercial law in Ethiopia passed through (a) the period of piece-meal
legislation (prior to 1960), (b), the period of a comprehensive and systematic commercial
law (1960 & 1974), (c) the period of anti-western commercial law (between 1975-1990) and
(d) the period of the revival of the spirit and letter of western-based commercial code, which is since
1991.
13. Potentials and limits of codification
 The classical Western codifications, for example, those of France and of Germany, can be looked upon as
historically inevitable responses to their society’s need to have a law coextensive with effective political
and economic units that had already emerged. France and Germany were for historical reasons politically
and economically nations before they had a uniform national law and administration of justice. Indeed, England
is the only European country in which a gap between the effective political and economic units and the effective
legal unit did not persist into relatively modern times. And when a contemporary polity faces the need and has
politically speaking, the opportunity to close such a gap, considerations of convenience and of expedition make
recourse to legislation normal.
 A somewhat related purpose-that of modernizing the society’s legal rules and principles-is typically
encountered in developing societies where it is desired to change certain aspects of social and economic
patterns that are not fully consistent with the requirements of a modernized social and economic structure. Both
these potentials of codification underlie in significant measure the Emperor’s decision to promulgate a Civil Code.
 The Preface of the Civil Code emphasizes simplicity, clarity, and coherency. A well-drawn Code forwards
simplicity and clarity in the administration of justice by providing a very useful law ordering and finding device. A
successful code is a sophisticated index to legal rules and principles and draws together subject matter that is
related in terms of policy and purpose so that interrelations are more easily perceived and understood. Other,
but more cumber-some, devices serve these functions in uncodified systems. For example, in the United States
elaborate digest-indices keyed to a comprehensive system of unofficial law reports orders the decisional
materials in terms of which so many problems are approached in a case-law system.
 In addition, a code can provide a definitive answer to certain kinds of problems; in particular, questions that
are frequently encountered in identical or nearly identical terms in the administration of justice and that
admit of categorical answers as distinguished from answers derived from a weighing of various relevant
elements.
Limitations

1. No system of law, codified or otherwise, can provide simplicity or certainty where the problem requires for
wise resolution or exercise of judgment by the adjudicator as distinguished from a mechanical application of
a dispositive rule.
2. Another limitation upon codification that must be kept in mind is that the Code, with the passage of time,
inevitably becomes less central to the administration of justice and loses, as well, a significant
measure of its original simplicity and intellectual coherence. As time passes, new problems and new
values, which the code did not-indeed, could not-take into account, emerge. Consequently, new solutions
are required that may not derive easily or directly from the code. In addition, the materials that must be
mastered in order to understand what meaning the code has in actual application expand significantly as a
body of adjudicative experience is built up with respect to code provisions. Ultimately, this process of aging
reaches the point at which the code is nothing more than a formal starting point for legal reasoning and-in
the form of annotated edition-a convenient law ordering and finding device. In some fields, for example, that
of delicts, the French Civil Code of 1804 is now in this position.
3. A limitation that flows directly from certain advantages of codification, those already mentioned of simplicity,
clarity, and intellectual coherence. There is a human tendency, especially where a code is still relatively
young, to overestimate its potential. This leads to rather mechanical and wooden interpretation and
impedes the further development of the legal order. A code is a useful aid in our thinking about legal
problems but it should not replace thought and reflection.

The Development of the Ethiopian Penal Law

1. The Fetha Nagast:

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 The Fetha Nagast characterized a number of behaviors as criminal offenses. The Fetha
Nagast based itself on harsh punishments. The Fetha Nagast adopted ``an-eye-for-an eye``
principle of punishment.
 However, the Fetha Nagast applied only to Christians. The Fetha Nagast was written by and
for Christians. Muslims in Ethiopia continued to be judged in their own courts according to
the Sharia law. Also, outside the ordinary judicial system, clan and tribal courts exercised
unofficial but effective coercive powers. People rarely appealed the decisions of the
traditional courts to regular courts. The Fetha Nagast and customary laws remained the
basis of criminal justice until 1930.
2. The 1930 Penal Code:
 The Code of 1930 represented the first effort to unify and to systematize Ethiopian traditions
in criminal matters. The 1930 Penal Code combined customary with comparatively more
modern concepts of penal law. The Code took rules and principles from the Law of the
Kings (Fetha Negast) and from advanced European penal codes. The 1930 Penal Code
was primitive in its application since there were several defects in its contents. The 1930
Penal Code aimed at modernization of the administration of the Ethiopian criminal justice
system.
 Unlike the old system (i.e., the Fetha Nagast), the 1930 Penal Code laid down specific
punishments for defined offenses. It was a legal principle that a person who performed an
act not prohibited by law committed no crime. Under the code, acts of omission were
punishable by law. The code made distinctions among preparatory acts, attempted crimes,
and completed offenses. The code did not consider preparation in itself as a criminal
offense. The Code did not even take as offense unsuccessful attempts. Under the Code
courts were authorized to impose punishment if the accused acted out of superstition or
"simplicity of mind."
 The Penal Code was strong on retribution. The code allowed the courts to determine
penalties according to the degree of individual guilt. In addition, the courts took into
consideration an offender's background, education, and motives. The code also took into
consideration the offense's gravity and the circumstances of its commission. The code
permitted courts to impose the most severe punishments to persons of title and wealth. The
reason for such harsh punishment on wealthy persons was that such offenders had less
reasonable motives for criminal action than did persons of lower status. The code abolished
mutilation. The code, however, retained capital punishment and permitted flogging. The
1930 Penal Code lacked a comprehensive approach to the disposition and treatment of
offenders. The 1930 Penal Code was replaced by the new Penal Code promulgated on July
23, 1957, and put into force on May 5, 1958.

3. The 1957 Penal Code:

 In 1957, Ethiopia had revised her penal code. The primary objective of the code was to meet
the needs of a developing nation. A British legal expert drafted the 1961 Criminal Procedure
Code, which supplemented the 1930 Penal Code. The former was based on the Swiss
Penal Code and many secondary sources. The latter reflected the influence of English
common law. Professor Jean Graven prepared a draft of the Revised Penal Code based on
the civil law tradition. He adopted the civil law tradition after he received instruction from
Emperor Haile Selassie I and after he deliberated with the Codification Commission. The
code also included “the contributions of the most significant systems of jurisprudence in the
world of today.” This means, the code incorporated some legal rules seen as best even if
they came from the common law system and from comparative law. The model adopted
preparing the Revised Penal Code of Ethiopia was also applied in the preparation of the

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other codes. The Revised Penal Code did also take some traditional penal rules into
account.
 Jean Graven submitted his draft in French to the Codification Commission. As mentioned
earlier on, the Commission was composed of Ethiopians and foreigners. After review and
some alterations by the Commission, it was then translated into Amharic and English. The
main domestic sources used in preparing the Revised Penal Code were: the Fetha Negast,
the 1930 Penal Code and the subsidiary legislation published in the Negarit Gazeta. The
Commission considered the Fetha Negast. The Fetha Nagast was taken into account
because it contains several prescriptions of a penal nature. It was taken into account
because it was regarded as the source of Ethiopian legal tradition. The other reason for the
drafters taking the Fetha Nagast as a source of the Revised Penal Code was because it
contained a number of fundamental principles that had to be taken into consideration in the
drafting of an Ethiopian Penal Code. An instance of such basic principles was the
essentiality of guilt.
 The Codification Commission gave some instructions to the drafter of the Revised Penal
Code as to the form, content and arrangement of the code. The two instructions related to
the scope and accessibility of the code. Firstly, the Commission instructed the drafter that
the Code had to be complete. It should omit nothing that might be necessary to its proper
understanding and application. That is, the reasons why the commission decided the code
to be complete were: lack of adequate codified laws, lack of precise law reports and lack of
legal doctrine. In Ethiopia, statues were recent, the habit of publishing court judgments was
absent and legal literature was almost non-existent. The Code did not enumerate, e.g. all
the means whereby an offence might be committed. The code simply used general clauses,
that is, it set out the principle and illustrated it in a non-exhaustive manner. This was true of
most of its provisions. Secondly, the Commission expressed the desire that the Code be
written in a language as simple as possible so as to avoid ambiguities and be accessible to
everyone, layman and scholar. The Commission wanted the code to include new concepts
in the sciences of sociology, psychology and penology. The drafter was said to have met
these expectations.
 The 1957 Code follows a bi-partite classification of offences. Bi-partite classification of
offenses permits laying down principles applicable to all offences, regardless of the kind or
term of punishment they carry or of the court by which they are triable. It is divided into a
"General Part" and a ``Special Part``. The general part contains the punishment provisions,
defenses and other fundamental principles of criminal law. The special part followed detail
and specific crimes. Some argue that the content and the structure of the code were made
sufficiently close to the Swiss Penal Code in order to allow Swiss cases and commentary to
be considered as authoritative in Ethiopia in most instances. The Code deals with serious
offences (Arts. 1-689) and petty offences (Arts. 690 – 820). The provisions concerning
serious offences were contained in the General Part and the Special Part of the Code. A
similar division was found with regard to petty offences. The General Part set out rules
common to all serious offences and explained what is meant by a criminal offence,
irresponsibility, criminal intention or negligence, imprisonment probation, limitation, and the
like. The Special Part described the various acts considered to be criminal. The special part
laid down the penalties applicable to each offense. The special part defined the elements of
offences such as murder and theft, as well as the corresponding penalty.
 For almost every offense listed in the Revised Penal Code, there were upper and lower
limits of punishment. The effect was to stress acceptance of the concept of degrees of
culpability, as well as the concept of extenuating and aggravating circumstances. Separate
provisions existed for juveniles.
4. The Criminal Procedure Code:

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 Professor Graven had prepared a first draft of a criminal procedure code for Ethiopia. He
then presented it to the Ethiopian Commission in 1956. The Commission did not however
accept the draft. The main reason for the rejection of the draft by the commission was that
Ethiopia had been using English-based adversarial procedures since 1941. Ethiopia then
asked Sir Charles Mathew to rework Professor Graven's draft and to produce a code with
more of a common law, adversarial system. Sir Charles Mathew was a known English legal
expert. He had had drafting experience in Malaya and India. Sir Mathew prepared a draft
criminal procedure code for Ethiopia and Ethiopia adopted his version in 1961.
 As already stated, the Penal Code adopted the civil law model of the penal code. On the
other hand, the Ethiopian Criminal Procedure Code of 1961 has more elements of the
adversarial, common law approach. (Note: an adversarial system is a type of trial system.
The essence of an adversarial system is to substantially leave litigation to the parties
themselves; judges are expected to act as an ampire.)

5. The 1974 Revolution and criminal law:

 Following the 1974 revolution, a "revolutionary" system of neighborhood justice emerged. It
was difficult to distinguish between criminal acts and political offenses according to the
definitions adopted in post-1974 revisions of the penal code. In November 1974, a
proclamation was issued. The Proclamation introduced martial law. The martial law set up a
system of military tribunals empowered to impose the death penalty or long prison terms for
several political offenses. The Proclamation applied the law retroactively to the old regime's
officials. The revolutionary government accused these officials of responsibility for famine
deaths, corruption, and mal-administration. These officials had been held without formal
charges. Special three-member military tribunals sat in Addis Ababa and in each of the
country's fourteen administrative regions.
 In July 1976, the government amended the Penal Code of 1957 to institute the death
penalty for "antirevolutionary activities" and economic crimes. Investigation of political
crimes came under the overall direction of the Revolutionary Operations Coordinating
Committee in each awraja. In political cases, the courts waived search warrants required by
the criminal procedures code. The government transferred jurisdiction from the military
tribunals to kebele and peasant association tribunals. Political trials constituted the main
business of these tribunals until 1978.
 Generally, the 1976 revision of the Penal Code empowered association tribunals to deal
with criminal offenses. The revision limited the jurisdiction of association tribunals to their
urban neighborhood or rural area. Elected magistrates, without formal legal training,
conducted criminal trials. Procedures, precedents, and punishments varied widely from
tribunal to tribunal, depending on the imperatives of the association involved. Peasant
association tribunals accepted appeals at the wereda (district) level. Appellate decisions
were final. But decisions disputed between associations could be brought before peasant
association courts at the awraja level. In cities, kebele tribunals were similarly organized in a
three-tier system. Change of venue was arranged if a defendant committed an offense in
another jurisdiction.
 The judicial system was designed to be flexible. Magistrates could decide not to hear a case
if the defendant pleaded guilty to minor charges and made a public apology. Nonetheless,
torture was sometimes used to compel suspects and witnesses to testify. Penalties imposed
at the local association level included fines of up to 300 birr. The tribunals could determine
the amount of compensation to be paid to victims. The tribunals could impose imprisonment
for up to three months and hard labor for up to fifteen days.
 Association tribunals sitting at the awraja or wereda level handled serious criminal cases.
These tribunals were qualified to hand down higher sentences. Tribunal decisions were

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implemented through an association's public safety committee and were enforced by the
local People's Protection Brigade. Without effective review of their actions, tribunals were
known to order indefinite jailing.
 The 1976 Special Penal Code, which was further elaborated in 1981 created new categories
of so-called economic crimes. The list included hoarding, overcharging, and interfering with
the distribution of consumer commodities. More serious offenses concerned: engaging in
sabotage at the work place or of agricultural production, conspiring to confuse work force
members, and destroying vehicles and public property. Security sections of the
Revolutionary Operations Coordinating Committee investigated economic crimes at the
awraja level and enforced land reform provisions through the peasant associations. These
committees were empowered to charge suspects and held them for trial before local
tribunals. Penalties could entail confiscation of property, a long prison term, or a death
sentence.

6. Special Penal Code of 1981:

 In 1981, the Revised Special Penal Code replaced the Special Penal Code. This amended
code included offenses against the government and the head of state, such as crimes
against the state's independence and territorial integrity, armed uprising, and commission of
"counterrevolutionary" acts. The 1981 amendment also included breach of trust by public
officials and economic offenses, grain hoarding, illegal currency transactions, and
corruption; and abuse of authority, including "improper or brutal" treatment of a prisoner,
unlawful detention of a prisoner, and creating or failing to control famine. The Amended
Special Penal Code also abolished the Special Military Courts. The code created new
Special Courts to try offenses under the Amended Special Penal Code. Special Courts
consisted of three civilian judges and applied the existing criminal and civil procedure codes.
Defendants had the right to legal representation and to appeal to a Special Appeal Court.

7. The 1980`s Legal Reform:

 In mid 1980`s, Ethiopia initiated a large-scale law reform project. As one of the components
of this massive law reform project, the country started revising its penal code and criminal
procedure code. The basic policy justification for the revision under way was to redesign the
law so that they would facilitate the construction of socialist system. The then socialist
government collapsed without finalizing the law reform.

8. The Revised Criminal Code:

 On May 2005, the Federal Government put in force a Revised Criminal Code while the
revision of the existing Criminal Procedure Code is underway.
 It seems that, the revision of the 1957 Penal Code was dictated by the need to make
criminal law ``gender sensitive, ``for example, by revising the domestic violence against
women and rape related provisions of the code.
 The revision was also intended to make the code compatible with the Federal Constitution.
 In addition, the revision attempted to revise the drug trafficking provisions of the code.
 In the case of the revision of the Criminal Procedure Code, the plan is to make it compatible
with the Federal Constitution and fill the many gaps one finds in the Code.

The Judicial System of Ethiopia

 Administration of justice can be defined as the process of making decisions in conformity
with the letter and the spirit of the law. The justice to be administered could be criminal or

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civil. This definition implies that certain institutions involve in the administration of law. There
are several types of justice rendering institutions which include regular courts and
administrative tribunals. One of the key institutions that render justice is a court of law.
1. Pre-Italian occupation:
 Some people claim that doing justice in Ethiopia was taken as one of the duties of each and
every Ethiopian citizen as manifested through the roadside courts. This was reflected
through the informal establishment and operation of roadside courts and family
arbitration. Any person alleged to have committed an offence or failed to meet his
obligation was required, under pain of penalty, to submit to the authority of such a
spontaneously called upon person. Irrespective of sex and social status, the person who
assumed such responsibility could exact coercive obedience. Such a person would try to
bring about the settlement of the issue between the parties in an amicable manner. S/he
could also require the assistance of others, usually elders or members of the clergy, to
mediate between the disputants so as to settle the case out of court. If all modes of
settlement of disputes available in the community in question did not work, the roadside
judge would bring the disputants before the local chief. Or the roadside judge would send
the litigants to the court of first instance by tying up the tips of their garments. The roadside
courts were most common in the northern part of the country.
 If the arbitration resulted in a decision accepted by the parties that was the end of the
matter; though there would be only the pressure of public opinion to enforce the settlement.
If there was no decision at this stage, or if one of the litigants desired it, the parties, with the
judge and witnesses, would go to the lowest official court. The lowest official judge would
be the chiqa shum, who corresponds to the village head elsewhere in Africa.
 The next court, especially for criminal cases, was that of the Malkanya, or governor’s
deputy in the district. According to a decree of 1931, these officials were to be appointed by
the governor. They must be ‘honest men and sympathetic to the poor’ with knowledge of the
law. They were to take the legal oath upon their appointment, to keep court clerks and to
see that all cases were recorded in a court register. They were supposed to choose two
assessors from those in the court, while the litigants each chose a guarantor. On appeal the
case went, with a copy of the record signed by all concerned, to the governor. The governor
could hear the appeal himself. Or the governor could refer it to his judges to decide the case
called the Wombars with four assessors.
 Appeal from the governor lay to the central court at Addis Ababa. There were in the capital
men known as Wombar-Rases, judges appointed to represent each of the provinces and to
help in dealing with their appeals. This central court used the services of four assessors and
two guarantors. The next appeal was to the court of the Afe Negus (the Mouth of the King).
The Afe Negus would take the case with the help of judges from the court below.
 The appeal then went to the Emperor himself. This was his duty from the earliest times. We
have the following account of the role of the Emperor’s court as it was at the end of the
Middle Ages from Alvarez, a traveler. In the moving capital, there was a long tent of justice,
close to the Emperor’s tent. From respect to the Emperor and his justice each man must
dismount before passing between these tents. Within the tent of justice were thirteen chairs,
six on each side, and one for the chief justice in the middle though the judges actually sat on
the ground beside them. ‘The plaintiff brings his action and says as much as he pleases
without anyone speaking and the accused answers and says as much as he pleases. After
further question and answer between them a recorder repeats all that has been said and
gives his verdict. Each judge, rising in turn, does the same, the chief justice speaking last.
There may then be a delay for bringing any proof that may be required. Finally the judges
go to the Emperor’s tent, speaking to him through the curtains, and return with his decision.
 Another traveler, De Castro, gives us some account of the supreme court of Menelik’s day
sitting to take appeals on Wednesdays and Fridays. Designated area in front of the palace

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was turned into an open-forensic hall; many colored eastern carpets were spread out. The
judges sat at the top and the chiefs, soldiers, and servants at the wings. The accused, the
witnesses and the advocate occupied the fourth place. Behind these was the public
watching. In the absence of the Emperor, the Afe Negus would preside.
 Coming to Haile Selassie’s day, you find that the usual procedure was for the Afe Negus to
make a concise report of the case to the Emperor. According to the 1930 Penal C ode, the
Emperor alone could sentence to death. The Emperor allocated two days a week for his
judicial duties. Some claim that from the earliest times until 1935 appeal lay from the
humblest peasant to the Emperor himself. Tradition required that the Emperor should be
accessible to all. Even in the nineteen-thirties, it was difficult for the Emperor to delegate his
power to handle cases entirely to a court of appeal over which he did not normally preside in
person.
2. During Italian occupation (1936 to 1941):
 Italian colonial power attempted to create its own court structure during the occupation. In
civil matters, the customary law and religious laws were to remain in force and to be applied
by the lower level native civil courts. Italian judges manned criminal courts.
3. Post-liberation period (1942-1965):
 Structure wise, the Administration of Justice Proclamation (Proc. No 2/1942) established a
four tier court system. The court system was characterized by a unitary court structure.
 This Proclamation provided for an integrated hierarchy of courts. The initial jurisdiction of
which was to be determined principally by the value of the claims in civil cases and the
seriousness of the crime in criminal cases. The primary consideration was to provide a court
that people could reach and where disputes of a relatively minor nature could be heard. The
means of transportation existing at that time was poor. This consideration dictated the
establishment of a court in the lowest administrative unit. The more important the case, the
further the parties could be expected to travel. Thus, the concept of a tiered court system
based on administrative units was introduced.
 Proclamation No 2/1942 attempted to reduce the number of appeals to one. Repeated
appeals and transfer of cases to the High Court caused delay in litigation. According to
Proclamation 2/1942, each court heard appeals from the next lowest court and there was to
be only one appeal. In practice, however, multiple appeals were taken.
 The higher courts would often hear the appeal, although they had no jurisdiction to do so.
When courts were first established, there was a tendency on the part of dis-satisfied litigants
to seek review in higher courts, and thus it may have been difficult for them to accept a
system of courts with a single appeal. The higher courts may have believed that they
should not refuse to hear the appeal in view of the prior practice or may not have trusted the
lower courts to arrive at a sound decision. These factors, coupled with an absence of
effective procedure, resulted in endless delays in litigation.
 It was also possible for a defendant to obtain a transfer of his case from lower courts to the
High Court upon posting security for costs. This enabled foreigners and wealthier Ethiopians
to have their cases heard in the High Court, where there were some foreign judges and
where the more competent Ethiopian judges sat. In addition to imposing a burden on the
plaintiff who would often have to travel to Addis Ababa to have his case heard, these
transfers had the effect of substantially increasing the caseload of the High Court.

4. Fusion of Power:
 A feature of the history of the administration of justice in Ethiopia was the fusion of judicial
power and administrative function. A single person was both a governor and judge at a time.
 There was not a sharp distinction between the executive and the judiciary functions of
government.

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 The governor of the administrative area was the president of the court in that area. This had
two purposes. In the first place, it avoided the necessity of sending additional judicial
personnel to those areas at a time when many officials were reluctant to leave the
capital. Second, and more important, the governors insisted that they had to exercise
judicial power as well as executive power to keep order.
 Proc. No. 323/1973 formally brought to an end of the influence of the administration. This
marked the first move for the formal independence of courts from the administration in
Ethiopia.
 In the period under discussion, the courts in Addis Ababa, particularly the High Court and
the Supreme Imperial Court were functioning more effectively. A number of British judges
came following the Liberation and together with the Chief Justice, senior Ethiopian judges,
and Ministry of Justice officials, undertook to develop a modern system of administering
justice. In 1943 procedural rules following the common-law mode were promulgated.
Written judgments were issued, though not reported. Judges of these courts began to enjoy
some prestige.
5. The court system (1965-1975)

Robert Allen Sedler, Ethiopian Civil Procedure (Ethiopia: Addis Ababa, Oxford University
Press, 1968) at 8-9, 12, 15-16 & 18.

Since the Supreme Imperial Court is provided for in the Constitution, it can never be abolished
by legislation, although its jurisdiction, as that of the other courts, is to be determined by law,
i.e., legislation. The basic structure of the Ethiopian court system was established by the
Administration of Justice Proclamation of 1942. Until this proclamation is repealed or
superseded, it remains the `law authorizing other courts,` as the term is now used in Art. 109 of
the Revised Constitution. The Jurisdiction of the courts now is defined by the Criminal
Procedure Code and the Civil Procedure Code. The 1942 proclamation provided for, in addition
to the Supreme Imperial Court, the High Court and the Provincial (Taklay Guezat) Courts. It
further provided that `it shall be lawful for Us to establish by warrant under Our hand other
courts of criminal and civil jurisdiction which shall be subordinate to the Provincial Courts.``
Subordinate courts were subsequently established, but the orders formally establishing them
and setting jurisdictional limits were not published in the Negarit Gazeta. It is believed that this
was accomplished by a circular published by the Ministry of Justice. The courts so established
were the Aweradja Guezat Court, the Woreda Guezat Court and the Mektl-Woreda Court.

The 1942 Proclamation has never been repealed or superseded, and the courts established
under that proclamation and the subsequent circular must be considered to constitute the courts
established by law within the meaning of Article 108. Thus, it is technically correct to say that
there are six levels of courts in Ethiopia. However, the 1961 Criminal Procedure Code did not
confer any criminal jurisdiction on the Mektl-Woreda or Takla Guezat Courts. In 1961 the
Parliament enacted a Courts Proclamation, which abolished those two courts and increased the
jurisdictional limits of the others. That proclamation has been suspended except for Eritrea, and
was not reinstated, so those courts continued to exercise jurisdiction in civil cases in
accordance with the 1942 Proclamation and the subsequent circular. The 1965 Civil Procedure,
like the Criminal Procedure, did not vest any jurisdiction in those courts, and for all practical

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purposes they have been abolished. But until the 1962 Proclamation is reinstated, those two
courts technically form part of the judicial system, though they do not presently exercise
jurisdiction.

There are four levels of courts in Ethiopia. The Supreme Imperial Court, which hears appeals
from the High Court; the High Court, which exercises original jurisdiction in the more important
cases and which hears appeals from the Awradja Court; the Awradja Court, which exercises
original jurisdiction in cases of intermediate importance and which hears appeals from the
Wordeda Guezat Court; the Woreda Guezat Court, which exercises original jurisdiction in the
less important cases. There are also local judges who hear cases of a very minor nature, which
may be tried over again in the Woreda Guezat Court. Mohammedan courts continue to function,
although there is a question as to whether the Proclamation establishing them has been
impliedly repealed by the Civil Code.

His Imperial Majesty chilot forms a very important part of the judicial system of Ethiopia.
However, it is necessary to recognize that chilot is not a court in the legal sense, and that the
exercise of jurisdiction in chilot is a very different thing than the exercise of judicial power by the
courts. The exercise of jurisdiction in the chilot is discretionary. The Emperor is not required to
hear a particular case nor to exercise chilot jurisdiction at all. In chilot, the Emperor is not bound
to decide the case in accordance with the provisions of the formal law but may base His
decision on principles of ``justice and fairness`` without reference to the law.

Heinrich Scholler, Ethiopian Constitutional and Legal Development: Essays on Ethiopian

Constitutional Development (Vol. I) (2005) at 158-161.

The historical background: The earliest legal document concerning the court structure: the
"Administration Justice Proclamation." Pursuant to this Proclamation, the Supreme Court, the
High Court, the Provincial Court and the Regional and Communal Court were established. In
spite of the establishment of these courts, this Proclamation also recognized the existence of
traditional Ethiopian dispute settlement mechanisms. Therefore, Article 23 of Proclamation
2/1942 makes a clear reference to this point. "Nothing contained in this Proclamation shall
prevent the hearing and settlement of minor disputes in any manner traditionally recognized in
Ethiopian law until such time as regular courts can be established for the hearing of such
disputes by judges duly appointed by us on the recommendation of our Minister of Justice."

Hence for this purpose, a proclamation was issued to establish local judges (Atibia Dagna).The
Criminal Procedure Code of Ethiopia of 1961 and the Civil Procedure Code of Ethiopia of 1965
have changed the then existing system of courts. Accordingly, Atibia Dagna, Communal Court
(Miktle Woreda Court) and Teklay Gizat Court were abolished without express provisions to that
effect in these two procedural codes. The two Codes established the Woreda Court, the
Awradja Court and that of the High Court. Since the advent of the two procedure codes, there

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have been many changes in the court system. Later in 1987 with the establishment of Peoples'
Democratic Republic of Ethiopia, the Woreda Court vanished with the elimination of the Woreda
as a unit of administration. Besieds all these courts, there were various special courts. The
Social Courts (Kebele Courts) are still functioning. Moreover, there are other courts like that of
the Tax Appeal Commission and the CPA-Administration Court which have special nature and
jurisdiction.

Since it was assumed in the old Ethiopia that the king has the power to enact laws, to execute
these laws and adjudicate cases, his power was absolute. The 1955 Revised Constitution of
Ethiopia has at least in theory envisaged the division of the power into its three main branches;
namely, the legislative, executive and the judiciary. Chapters IV, V and VI of this constitution
deal with the Executive, the Legislative and the Judicial organs, functions respectively. By virtue
of this division the independence of judiciary from any organ of the state was recognized at least
in principle. To this effect Article 110 of the 1955 Revised Constitution declares: The judges
shall be independent in conducting trials and giving judgments in accordance with the law, in the
administration of justice, they submit to no other authority than that of the law’’ In one case it
was decided by the High Court of Addis Ababa that an order to a President of an Awradja Court,
issued by a Governor directing the former to hand over possession of a plot of land to a party
who was involved in litigation concerning the right of ownership of the same, it was held that the
Governor's order constituted a clear interference with the independence of the judiciary granted
by the 1955 Revised Constitution and the order was declared null and void.

In spite of such facts which go in line with the principle of the independence of the judiciary,
there were other situations which negatively contributed to its implementation. Due to the fact
that Ethiopian kings were seen as "source of justice", the Emperor continued to interfere in the
administration of justice through the Chilot. This situation existed up to the 1974 Popular
Revolution which over threw the Emperor. Not only had the Emperor the power to adjudicate
cases but he also had the power to appoint judges from Woreda Court level to the Supreme
Court. This point is clearly put in Article 111 of the 1955 Revised Constitution which provides:”
Judges shall be appointed by the Emperor [..]"

However, one may question: judges of which court shall be appointed by the Emperor? Though
the Revised Constitution is silent as regards this question, one may refer to the provisions of
other legislations and reach a conclusion. One of the various laws to refer to is that of Decree
No.1 of 1942. The power granted to Governor General, Governor and that of Mislenes as
regards the administration of justice was not expressly amended. Under Articles 78, 82 and 83
of this decree the Emperor had power to appoint those judges. The theory of separation of
power which was recognized by the Revised Constitution seems to contradict itself by the
practice of appointing members of the Executive to be judges in the area of their jurisdiction.
There was no organ until this time (1955) which followed the manner in which judges were
elected, promoted and transferred and which was free from the influence of the Executive.

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Finally, it was after eighteen years that a law was enacted to implement the principle of the
independence of the judiciary envisaged under Article 111 of the Revised Constitution. In 1973
a proclamation was issued for the governing of the judicial administration. By virtue of the
proclamation the Judicial Administration Commission was established and this Proclamation set
judges free from influences exerted upon them from Governor-Generals, Governors and
Mislenes. According to this Proclamation the Commission has the power to select persons for
appointment as judges, to make recommendations for the promotion of a judge, as well as to
regulate their transfer. Without a change on the members of the Commission this Proclamation
was lat amended in 1968, by virtue of which the Commission's power was extended to include
registrars and public prosecutors. Although the principle of the independence of the judiciary
was expressly included in the 1987 Constitution and in the Proclamation 9/1987 the point is
whether or not it was implemented in reality.

Judicial commission: Then Part Six of Proc 40/1993 deals with miscellaneous provisions among
which are an election and appointment and removal of judges of the Central High Court and
Central Courts:” Presidents and Vice-Presidents and Judges of the Central High Court and
Central First Instance Court shall be selected by the Judicial Commission pursuant to the
provisions of the Independence of Administration of Justice, Proclamation No. 23/1992.
Those judges who are presented to the Judicial Commission by its chairman, who is the
President of the Central Supreme Court and approved by the Commission, will be submitted to
the President through the Prime Minister. Upon obtaining approval by the Council of
Representatives the President of the Transitional Government of Ethiopia appoints as judges
the candidates presented to him. The appointment of the President and Vice-President of the
Central Supreme Court is regulated by Proclamation No. 23/1992. Accordingly, they are
appointed by the President of the Transitional Government of Ethiopia subject to the approval of
the Council of Representatives. Both proclamations include provisions which deal with the
removal of judges of the Central Courts. Pursuant to Article 13 (2) of Proclamation No. 23/1992:
"[,..] judges shall be appointed for an indefinite period." And this is in accordance with the
principle of the independence of the judiciary. It is evident that this principle is more respected
when that of separation of powers is respected. In addition, Article 6 (2) of Proclamation No.
23/1992 provides:” No person may be appointed as a judge while being simultaneously
engaged in any legislative or executive organ of the state or a member of any political
organization."

6. Non-regular courts:
 Prior to 1936, there were quite a number of courts other than the regular courts. The
Ethiopian Orthodox Church had a religious court. It was called Ecclesiastical Court. These
courts had jurisdiction over divorce of a religious marriage, the administration of the church
and disputes over the property of the church. Courts of the Ministry of War established to
hear cases relating to land given to soldiers in active duty and other types of benefits
received in return for military service. The Ligaba Court had had jurisdiction over matters
arising out of land given to former soldiers in return for the services they rendered to the
government. The Slave Emancipation Court had jurisdiction to hear cases involving the
contravention of the law prohibiting slavery proclaimed in September 1923.

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 Between 1941 and 1974, the following non-regular courts were in place: the Ethiopian
Orthodox Church Courts, Muslim Courts, Military Courts (courts martial), the Hamle 16 th
Committee (which was given the powers of the court of the Ministry of War and the Legaba
Court), Political Court (had the power to hear cases of persons who had collaborated with
the occupying enemy), Committee for the Protection of Honor (established for the purposes
of adjudicating cases involving the defamation or degradation of the honor of the emperor
and that of the members of the imperial family), the Pension Appeal Tribunal, the Tax
Appeal Commissions, the Civil Service Tribunal and the Labor Relations Board.
 Litigation has always been a prominent feature of the Ethiopian scene, as it is in many
developing societies. Once courts had been established, people resorted to them
frequently, even with minor cases. The burden was excessive. To reduce this burden, in
1947 a system of Atbia Dagnas (local judges) was established. Traditionally, people
submitted their disputes to local elders, and under the 1947 Proclamation an attempt was
made to institutionalize this process. An Atbla Dagna was appointed for each “locality.”

7. Amicus curiae:
 Amicus curiae expresses the desire to involve the grass root in the administration of justice.
Amicus curiae suggests that interested individuals should be given a chance to participate in
the administration of justice. The term ``interested individuals`` is very broad for sure the
term includes the parties directly affected by the outcome of a given litigation. The term also
includes those individuals who may not have a direct interest in the final result of the
litigation but are seeking to give information or any other sort of assistant to the court or the
tribunal examining a given case. You can say that the concept of amicus curiea advocates
for the participation of individuals in the administration of justice. You can say that the role of
individuals who try to influence the outcome of a given case play a role similar to the jury in
the common law. Just for your information, in the United States of America, in criminal
litigation, some group of individuals participate in criminal litigation and they give the verdict
of guilty or not guilty after hearing the facts of the case.

In Ethiopia, amicus curiea was recognized. You can take the following examples of the
recognition of the institutions of the amicus curiea. There are certain provisions in the Ethiopian
Criminal Procedure Code formally giving a place to assessors. Before 1942, assessors had had
a big place in the administration of justice in Ethiopia. In the Zufan Chilot, dignitaries expressed
their views before the Emperor had a lasting word on the case. Article 19 of the Administration
of Justice Proclamation issued in 1942 gave some roles to assessors in the administration
justice. Another example is the traditional roadside courts. The roadside courts as the name
suggests heard cases by the roadside. Where a dispute arose between two or more individuals,
they could approach an elderly person, even a passerby, and ask him/her to settle the case.
Normally, it was customary for the elderly person to rest by the roadside in order to settle the
matter. The institution of the roadside courts was the practice in the highland parts of Ethiopia.
The roadside courts in Ethiopia were signs of the desirability of the recognition of the
participation of ordinary individuals in the administration of justice in the country. One finds
another example of the recognition of the concept of amicus curiea in the current Ethiopian
Criminal Procedure Code. It is desirable to reproduce Article 223 of the Ethiopian Criminal
Procedure Code. The Article states: The atbia dagnia shall whenever possible settle by
compromise all cases arising out of the commission, within the local limits of his jurisdiction, of
minor offenses of insult, assault, petty damage to property or petty theft where the value of the
property stolen does not exceed five Ethiopian Birr. Where the atbia dagnia is unable to effect a

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compromise he may sitting with two assessors adjudicate on such offenses and on conviction
impose a fine not exceeding 15 Ethiopian Birr. The atbia dagnia shall cause a record to be kept
which, among others, shall show the opinion of the assessors.

Assessors are supposed to have no interest in the outcome of a case in which they are
involved. Assessors give important input to the decision of a court. However, the opinions
assessors give do not bind the court; the court may disregard such opinions. The involvement of
assessors in the administration of justice is believed to increase the acceptability of a judgment.

8. The court system (1993-1995)

 Purpose of Proclamation No. 40/1993: Due to the federal structure of the administration
prevalent in Ethiopia today, two court structures were envisaged. The court structure of
the Central Transitional Government and that of National/Regional Self Governments.
These dual structures of courts arose from the fact that the Central Government and the
National/Regional Self Government had different powers and responsibilities which
were defined by law. One can cite two objectives which the Central Government Courts
establishment proclamation No. 40/1993 tries to achieve. These were: to establish and
organize a court system based on fundamental principles of justice which would
guarantee the observance of human and democratic right to the peoples of Ethiopia,
considering the fact that the courts of the previous regimes and their manner of rendering
justice and inherent weaknesses and short comings; to organize the courts of the Central
Government in pursuance to the spirit of the proclamation defining the powers and
responsibilities of the Central Government and the National/Regional Self Govern-
ments.
 The central courts: The Proclamation No. 40/1993 has tried to transform the wish of the
legislator into practice by fixing such provisions as to deal with its purpose. The Central
Courts have as an objective to "safeguard [[...]] individual and democratic rights,
freedoms, and interests guaranteed by the Constitution and ensure the maintenance
of law and order and the prevalence of peace and justice. The "Central Supreme Court
of the Transitional Government of Ethiopia" and the "Central First Instance Court of the
Transitional Government" are established by this Proclamation. The main body of this
Proclamation deals with the "Establishment of the Central Court and their Jurisdiction,
Various provisions of this Proclamation have dealt with material and local jurisdictions of the
Central Courts. They have dealt also with judicial jurisdictions. While defining the jurisdiction
of the Central Courts a list of those cases which fall within their jurisdiction is provided.
 In civil cases material jurisdiction of the Central High Court pursuant to Article 14 and that of
the Central First Instance Court, under Article 18, is determined by giving due regard to the
amount of money each case involves.
 Accordingly, the minimum amount of money which a certain civil action should involve in
order for this action to come before a Central High Court is Birr 500.000. And for a Central
First Instance Court the minimum amount is set by Birr 10.000 and the maximum by
500.000." This is without contradicting the fact that there are matters which fall within the
jurisdiction of the Central High Court and the Central First Instance Court taking into
consideration only the nature of the suit. For example, suits regarding private international
law, and suits regarding nationals and foreign nationals fall within the material jurisdiction of
the Central High Court, whereas, suits regarding liabilities of employees of the Central
Government arising from their official duties" fall within the material jurisdiction of the Central
First Instance Court. Furthermore, Article 18 (10) provides that "[...] suits to be based on the
Charter or the laws of the Central Government and the subject matter of which cannot be

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expressed in money" fall within the jurisdiction of the Central First Instance Court.
 The other point concerns substantive laws to be applied by Central Courts. Dwelling on this
point, Article 8 (1) provides the following: "The Central Courts shall settle disputes before
them on the basis of the Charter, International Treaties or laws of the Central Government."
The usual way of making international treaties part of our domestic law is ratification, a
power exclusively reserved for the Council of Representatives by the Charter. For example,
the Convention on the Right of the Child which was adopted by the General Assembly of the
United Nations is ratified by the Council of Representatives thereby accepting it as the law
of the land. This decree of ratification was published in the Negarit Gazetta. But this act of
ratification though published in the Negarit Gazetta does not provide the text of the
document which is ratified. All international treaties which are ratified by the legislative organ
do not have official translations. The problem then is in the absence of such translations, are
courts authorized to apply non official translations?
 The last point refers to the principle of judicial review and in this regard, Article 11 provides
the following:” The Central Supreme Court shall have appellate juris-diction over judgments
of the Central High Court nullifying the provisions or parts of the laws of the Central
Government International Treaties as inconsistent with the Charter International Treaty, as
may be appropriate, judgments of the Central High Court which determine: a provision of a
National/Regional Constitution or a law to be contrary to the Charter or International Treaty;
a decision of the National/Regional Supreme Court nullifying a part or a whole provisions of
the laws of the Central Government, International Treaty or the Charter."
 Organization of Central Supreme Court: The other basic issue dealt by Proclamation
40/l993 is organizational set up and the judicial process at the Central Courts doing so, the
Central Supreme Court has three divisions: civil, criminal and labor. Each of these divisions
is composed of one presiding judge and two other judges. There are situations where a
division constitutes not less than five judges. The Central High Court and Central First
Instance Court do have two divisions: civil and criminal "The Central High Court shall, in
addition, have a labor division. Each division is composed of a presiding judge and two other
judges; but there is discrepancy between the Amharic and the English versions of Article 25
(2). In the Amharic version of this provision, it is stated. "[...] where the Central Supreme
Court deems it necessary, it may decide that only one judge sits in a division.” Article 48
provides that Amharic is the working language of Central Court. However, where a party
does not understand Amharic it is the court which furnishes an interpreter.

9. The courts system (since 1996):

As an organ of government, the judiciary, is entrusted primarily to construe a law issued by a
legislature and applies the same to a case before it. In order to put this judicial power into
effect, this organ needs to have courts established. These courts may be structured in various
states differently depending on the form of the government or economic reality or the size of the
states concerned or the combination of any of these factors. Although a country which follows a
federal system will not necessarily have a parallel court structure, Ethiopia has organized a dual
court structure. Consequently, we see the division of judicial power between the courts of the
federal government and that of the Regions, horizontally, and again vertically among the
different levels within each structure. The matters allocated to the federal courts appear to be of
national concern, while matters relating to the units are left to the courts of the regions. Within
the federal court structure, there are three levels of courts according to Proclamation No 25/96.
Thus put from bottom to apex: the Federal First Instance Court having only original jurisdictions,
the Federal High Court possessing both original and appellate jurisdiction and the Federal
Supreme Court with its original, appellate and cassation powers. Proc.No. 25/1996 allocates
jurisdiction to Federal Courts mainly on two criteria: laws and persons. Federal Courts are to

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settle cases or disputes submitted to them within their jurisdiction on the basis of Federal laws,
international treaties, and regional laws where the cases relate to same and if not inconsistent
with federal laws and international treaties. The regional states do have their own tier of courts.
For instance, as per Article 3 and Article 27(b) of the Oromia National Regional State Courts
Proc. No. 6/1995, the Region has four tiers of courts, namely: the Social Courts, District Courts,
the Zonal Courts and Supreme Court. The Oromia National Regional State has also a cassation
division within its Supreme Court. Petitions can be filed to the Cassation Division of the Federal
Supreme Court from any level of the Federal or state courts, both on federal and regional
matters as long as a decision being challenged is final and contains a basic error of law.

10. Cassation power:

In Ethiopia, cassation, some say, was introduced in 1987. This assertion is correct if it means
cassation proper i.e., cassation as it exists today was introduced in the year 1987. The
prototype of today’s cassation seems to have a long history in this country. Thus the assertion
the cassation was introduced in the country in 1987 is incorrect if it is set out to show that a
remedy similar, though not identical both in shape and purpose, to the present day cassation in
our country did not exist before 1987.

If we consider the institution before the coming to power of Hailesillasse I, we get the accounts
of scholars such as M. Perham. Perham wrote: ``after a case had been heard elsewhere, eg.,
by a king or other ruler of territory, a party could petition the Emperor for review and his decision
was final.`` Although this power of the various emperors was said to have been motivated by
their desire to see that justice is done, one may counter-argue that they did have another
motive, namely, the strong desire to see laws declared by them or their sense of equity would
have prevalence over the various lords in the country. The same motive dominated the earliest
stage of the development of cassation in France, Italy and England.

During the reign of Emperor Hailesilasse I, there was a special tribunal referred to as the
Imperial Chilot, which deviated from the then ordinary courts in peculiar ways. The emperor
established an organ called ‘Seber Semi,’ meaning a body which hears petition for cassation.
Its function was to give an opinion on questions of law when such question had been referred to
it by the Emperor and it did not possess the power to decide cases in accordance with the law,
but can only make recommendation to the Emperor. A prototype of cassation also existed in the
period between 1975 and 1987. Proc. No. 52/1975 came up with an interesting provision. Art.
(4,1,[d]) stipulated that: “Every division of the Supreme Court shall be fully constituted by three
judges provided that where the President of the Supreme Court is of the opinion that the
complexity of any case so requires, he may decide that a division be constituted by more than
three judges.”

Thus discretion was given to the President of the Supreme Court in deciding whether or not a
given case was ‘complex’ or not. In case where a case was discovered to be ‘complex,’ more
than three judges were supposed to dwell upon it. And no discrimination was made as between

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question of law and question of fact; the same was also true as between civil cases and criminal
ones. When we consider the practice during this period, the president in fact exercised its power
since there are very significant cases decided by what was then called ‘Panel’- a temporary
division of the Supreme Court in which at least four judges used to sit in settling what was
considered to be a complex case

Proc. No. 9/1987 heralded cassation proper. A final decision of the Supreme Court or other
courts containing a fundamental error of law was supposed to be reviewed by a division of the
Supreme Court which used to be tentatively constituted. At least five judges used to sit in
deciding a case when the President of the Supreme Court so decided or where the Procurator
General submitted a protest. Where the latter submitted a protest, the President had to refer
the matter directly, that is, without any further scrutiny, to the division. The purpose of remedy in
cassation was clearly legislated to be the correct and uniform application of law throughout the
country.

All other things with respect to the cassation court being somewhat the same, two noticeable
changes were introduced during the Transitional Period. To begin with, the cassation court had
the power to interpret the Transitional Period Charter which could be equated with the then
supreme law of the land. Finally, interestingly enough the decision of the cassation division was
given the status of precedent. At present, the Cassation Division of the Federal Supreme Court,
located at the apex of the present court system in Ethiopia, is a judicial unit of last resort. It
considers any final court decision over any matter, whether federal or regional and regardless of
the tier of the court, provided such decision contains a basic error of law.

4.6 Constitutional Development of Ethiopia

This section discusses the main constitutional developments in Ethiopia. It describes the key
features of the four constitutions of Ethiopia, namely the 1931, 1955, 1987 and 1995
constitutions. The section also touches upon the 1952 Eritrean Constitution, the 1974 Draft
Constitution of Ethiopia and the Transitional Period Charter of 1991. Ethiopia put in place two
constitutions that promoted the idea of empire state. The PDRE Constitution of 1987 advocated
for a unitary and socialist oriented state. Then the present constitution rests on ethnicity,
federalism, human rights and decentralization of political power.

4.6.1 Pre-1931 Period: Before 1931, Ethiopia did not have a written constitution. Various
emperors ruled the country without regard to such constitutional principles as separation of
power and the rule of law. The emperors enjoyed absolute power; they did not know of any legal
limitations. Emperors adopted unitary form of state. The absolute emperors aspired for political
centralization. Force, religion and the legend of the Solomonic Dynasty served as tools of
political legitimacy. Only those who could establish a link with the tradition of the Solomonic
Dynasty were taken as the right persons to rule the country. Those who could not establish such
connection faced legitimacy crisis. In the latter category, you can cite the Zagwe Dynasty and
Emperor Theowodrows II as examples. Those kings or emperors who could show that they

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belonged to and were ready to defend the Orthodox religion could easily establish themselves
as rulers proper. Those who failed to do so would be ousted. In the latter category, you can
mention the cases of Emperor Susuneous, who converted himself into a Jesuit and Lij Eyasu,
who sympathized with Muslims. Practical limitations such as the existence of power contenders
and lack of effective control of the periphery by the center dictated the concession of some
degree of local autonomy to the regional lords.

The 1931 Constitution:

This period starts with the promulgation of the first written constitution in 1931. This constitution
had a couple of functions. Domestically, it was designed to serve as an instrument of
legitimatization of the powers of Ethiopian monarchs. Internationally, the constitution was meant
to play the role of modernization. The constitution established the legal framework for
absolutism. The constitution "legalized the emperor's absolute powers in appointments and
dismissals, the rendering of justice, the declaration and termination of wars, and the granting of
land and honors." Moreover, the constitution snatched the power of the traditional nobility to
sign treaties with foreign states in their own rights. The constitution looked more like an
agreement between the monarchy and the nobility, inclining the balance in favor of the
monarchy. The constitution was an attempt to grant Ethiopia a modernized image to the outside
world. The constitution at the same time served as an instrument of compromise between
tradition and modernity.

Bajerond Takla-Hawariyat drafted the Constitution of 1931. He was the Minister of Finance. The
draft was then submitted to the major noble men of the country. The draft was promulgated after
the nobles had discussed and approved it. The nobility participated in the process of making the
1931 Constitution because Emperor Haile Selassie I wanted to give further weight to the
document. The constitution had greatly reduced the powers of the nobilities in the provinces.
Even if the nobility participated in the process of making the constitution, they were unable to
change those parts of the constitution that limited their power. The Emperor, for his part, had
difficulties in enforcing it on the nobility in the provinces.

There were two major sources: traditional sources and the Maji Constitution. As a mode of
putting together the tension between the traditionalist nobility and the modernizing monarch, it
used the 1989 Meiji Constitution of Japan as a model. In addition to the main text of the
constitution, Takla-Hawariyat prepared a law implementing and expanding parts of the
Constitution. This legislation can be called an implementing law. The Emperor had taken much
power from the nobilities. He stated this snatched powers in the constitution and made himself
an absolute ruler. However, he needed to give some sort of concession. He stated those minor
concessions to the nobilities in the form of an implementing law. The implementing law
contained the law of the Imperial House referred to in the Constitution. The implementing law
gave further powers to Parliament. The implementing law granted a number of minor privileges
to the great lords. The implementing law gave privileges to the nobilities in the form of price
Emperor Haile Selassie I had to pay in order to get support from the nobilities. The
implementing law was not published at the time. Without those concessions to the nobilities, his

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rule would face some degree of problems. The legal status of the implementing law was not
clear.

The Constitution was an instrument of centralization under the Emperor. The Constitution
reflected the traditional principle of absolute imperial power without the practical limitations,
which modified it. The Emperor received the entire executive power over both central and
provincial government. The nobility and provincial governors were granted no independent
authority. The newly instituted Parliament provided no check to the Emperor. The Emperor
could disregard the human rights provisions of the Constitution in emergencies. The
Constitution reflected the centralizing policies of the time. The constitution provided the formal
basis for a process of centralization necessary both for national unity and for effective
modernization.

The Constitution was an instrument of modernization. The Constitution followed the tendencies
of the period by adopting a cautious and gradualist approach. A Parliament was founded. But,
the Parliament was given powers only of discussion. The Emperor appointed the members of
one chamber. The nobilities appointed the members of the other chamber. A number of rights
were recognized, subject to limitation by law. A democratic or liberal constitution, however,
could not at that time have been implemented. The constitution did not make any distinction
between different branches of government. However, the 1931 constitution could be taken as a
beginning for Ethiopia to experiment with a written constitution. The constitution founded the
Parliament. The constitution lacked implementing legal or administrative machinery. It was
subject to no judicial interpretation. The provisions on rights could have had little relevance to a
people to whose traditions they were largely strange. The power of the Emperor over the
provinces was expanded. Relations between the Emperor and the executive branch of
government were left so vague. The major part of the document simply confirmed in the
Emperor powers.

In its content, the 1931 constitution was "a royal charter guaranteeing rights and privileges to
the nobility." The constitution created a semblance of a bicameral parliament whose Upper
House is strong, composed of important members of the nobility, and whose lower House had
an advisory role. There was no popular election of any of the members of the Houses. The
Upper House members, being important members of the nobility, were to be handpicked by the
monarch, while the members of the Lower House were nobles elected by the nobility in the
Upper House. The Houses served as a communication bridge between the government and the
people. The 1931 Constitution established a ministerial executive and a judiciary of regular and
administrative tribunals with the Emperor's Court (Zufan Chilot) as the last court of appeal.

The Constitution did not address the issue of ethnic and religious diversity. The constitution did
not contain the rights of citizens. The constitution, being a written law, however, started a period
of legal formalism. This means, the constitution necessitated decisions to be made in conformity
to the text of law. Although there was a written law (e.g., the Fetha Nagast) applied in the

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highland Ethiopia for long, the fact of the existence of customary and religious laws had forced
the Ethiopian judge to dispense justice without any need to conform to laws. Thus, in the
absence a written law and in the presence of diverse customary rules officials such as judges
had had wide discretion in their decision making powers. The written constitution was the
beginning step to limit the officials` discretion.

Two factors made the 1931 constitution inadequate. One was the changing political climate of
the early nineteen-fifties. And especially Ethiopia’s Federation with Eritrea in 1952 led the
country to revise its constitution. As compared with the liberal Constitution adopted in Eritrea,
the 1931 Constitution seemed somehow backward. Emperor Haileselassie I hoped that a new
constitution might be used to bring Eritrea more closely under the control of the central
government in Addis Ababa. Supporters of reform further urged that Ethiopia was being
criticized for the illiberality of the existing Constitution both abroad and by the growing number of
educated Ethiopians. These supporters thought that it would be wise to anticipate demand for
change before it became obvious that the government was giving in to pressure. The revision of
the Constitution thus followed closely from the political development of the time…

The Ethio-Eritrean Federation (1952-1962)

The territory now called Eritrea was historically an integral part of Ethiopia since the Axumite
Era in the first century AD. Eritrea did not exist as an entity of its own prior to 1890 when it was
created by Italy. The historical and cultural background of the Christian Eritreans is identical to
those in Tigray. The language Tigrigna is the same as the one spoken in Tigray and belongs to
the family of Semitic languages. The Tigrayans, therefore, form a solid bridge connecting Eritrea
with the rest of Ethiopia. The death of Emperor Yohannes in 1889 and the shift of center of
power from Tigray to Showa created a favorable condition for Italian colonial expansion.

Between the years 1869-1889 Italy insisted on expanding southwards, despite suffering defeats
brought upon them by Ras Alula at Dogali. As early as 1887, Menlik the King of Showa had
expressed readiness to negotiate with the Italians about supplies of arms in exchange for
concession of territory, if this would ensure his speedy accession to power. Menlik seized the
opportunity provided by the political vacuum created and sealed an Italo-Ethiopian pact, the
treaty of Wuchale, in May 1889. As a result, part of the territory was ceded and in January
1890, Eritrea was born as an entity. In spite of the treaty of Wuchale, Italy continued expanding
southwards and occupied some territories leading to the famous Battle of Adwa in 1896. Even
after the battle of Adwa, the treaty of Addis Ababa (October 1896) which abrogated the treaty of
Wuchale, recognized the independence of Ethiopia, but confirmed the Italian possession of
Eritrea until 1941.

Menlik was in no position, according to some writers, to expel the Italians from Eritrea and he
left Eritrea in Italy's possession. Controversies exist as to why Menlik did not insist on expelling

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Italy from the whole of Eritrea as a victor of this famous war in history. One version of the
controversy states that he was compelled to halt rurther Italian expansion into his territory owing
to geopolitical and logistic reasons. If Menlik pursued pushing the Italians out as Ras Alula had
wished, then Italy could send more reinforcement and the hard won victory could be lost.
Whereas the other version states that the territorial cession is seen from the angle of the then
existing rivalry between Tigray and Showa. One should note the fact that Menlik was
consolidating his power both in terms of weapons and territory when Emperor Yohannes was
busy fighting foreign forces. Because of this, they believe Menlik gave the territory to Italy in a
bid to weaken his northern rivals. For instance James Paul recently wrote: 'Menlik's 1896 post
Adwa treaty with Italy guaranteed Ethiopia's independence within settled borders in exchange
for its recognition of Rome's sovereignty over the territory still occupied (even after Adwa) by
reinforcing Italian armies based in Asmara. Thus was created in a legal sense a new typical
artificial colonial territory, which Rome named Eriterea. Menlik was praised for his real politik
but in appeasing Italy's colonial appetite he had sanctioned the partitioning of the Tigrayan
peoples; those north of the Mereb River became subjects of an Italian colonial rule and those to
the south remained independent Ethiopians but were governed by a new monarchy from distant
Showa.

As a result, from 1890 until its liberation in 1941, Eritrea was administered as a colony by the
Italian colonial Ministry, under a governor nominated by the Italian king. After liberation Eritrea
remained under British rule till 1952. After World War II Italy renounced all right and title to its
colonies and the Treaty of Peace signed in Paris in 1947 provided for the final disposal of the
former Italian colonies to be determined by agreement among the four allied powers, the USA,
USSR, UK and France. Failing agreement, the matter would be submitted to the UN General
Assembly for disposition. The four victorious allies established an investigating committee to
come up with a proposal on the future of Eriterea. The United States based on its interest in the
region and good relations with the Emperor was keen to see Eritrea joined to Ethiopia in unity.
The USSR and some Afro-Arab countries were on the other hand opposed to this move. They
took the position that only separate existence could guarantee the sovereignty and progress of
Eritrea. At the same time, however, they were sympathetic to Ethiopia's need for access to the
sea. Because of disagreements the matter was referred to the United Nations. In November
1949 the General Assembly set up the United Nations Commission for Eritrea, constituting
members from Burma, Guatemala, Norway, Pakistan and South Africa whose task was to visit
Eritrea and after taking into account the interests of the inhabitants and the interests of all the
countries involved to report its findings to the UN. The findings were however divided. Burma
and South Africa proposed federation with Ethiopia, Norway proposed union with Ethiopia while
Pakistan and Guatemala proposed UN trusteeship for ten years and independence to follow
thereafter.

In the period preceding the federation, the demand of political parties in Eritrea was diverse
concerning the destiny of Eritrea. Many Eritreans demanded unity with Ethiopia, others
requested for immediate independence and still others urged for a partition or at least a different
status for the western side of the province. In short, the internal situation was divided. On the
Ethiopian side, Haile Selassie demanded the full incorporation of Eritrea and nothing less.
Ethiopia's claim was based on her need for access to the sea and by the claim of historical title

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and cultural affinity of the two populations. Furthermore Ethiopian diplomats successfully
invoked the OAU principle of non-territorial intervention in the internal affairs of the state and the
need to respect the territorial integrity of African States whose territories were defined by
colonial borders. Ethiopia argued that if Eritrea's plea received a hearing, it would upset the
entire post-colonial African state system as legitimized by the Cairo Resolution of the OAU in
1964.

The proposal by South Africa, Norway and Burma, constituting a majority, was finally approved
by 46 to 10 with four abstentions. The Eritrean domestic situation, the international context and
Ethiopia's case finally brought what is commonly described as the 'compromise formula,' which
became UN General Assembly Resolution 390 A(v). The UN General Assembly passed this
resolution of December 2, 1950 and the Resolution stated that Eriterea should form 'an
autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian crown.' The first
seven Articles of the Resolution passed by the UN General Assembly on December 2, 1950
formed the Federal Act. A draft constitution prepared by UN experts was submitted to an
Eritrean Assembly and the latter adopted it on 10 July 1952. By Proclamation No. 124 of 11
September 1952 the Eritrean Constitution with the Federal Act was put into force in Negarit
Gazetta. At this point in time, the federation of Eritrean with Ethiopia came into effect. The
Federal Act as well as the Eritrean Constitution provided for a 'federal arrangement between the
two governments. According to the Constitution "Eritrea is an autonomous unit federated with
Ethiopia under the sovereignty of the Ethiopian Crown'. The government of Eritrea was
authorized, as a manifestation of its autonomy, to exercise legislative, executive and judicial
powers. The actual division of power under the federal act vested a number of basic functions
in the federal government notably defense, foreign affairs, currency and external trade while
reserving residual powers to the Eritrean government. These included civil and criminal law,
police, health, education natural resources, agriculture, industry and internal communication.

Many controversies arose over the ambiguity of some of the concepts included in the
documents as well as over the whole federal compromise. There seemed a consensus that the
term `autonomous unit` signified not a sovereign state but rather a politically organized unit
linked federally with Ethiopia and that the phrase under the sovereignty of the Ethiopian crown
implied that the federation not the autonomous unit, enjoyed sovereignty.

More controversial were the status of the federation and its subsequent dissolution in 1962.
Closer observation of the 1955 Constitution and the Eritrean Constitution seems to suggest that
Eritrea was only an autonomous region rather than a full-fledged unit in a federation, as we
understand it today. The Resolution characterized Eritrea as 'an autonomous unit federated
with Ethiopia under the sovereignty of the Ethiopian Crown'. It did not accord Eritrea the status
of a state in a federal union with Ethiopia. In a federation resulting from two units, one would
expect there to be three institutions. The two constituent units and one other overarching federal
government for both of them. Furthermore, a supreme constitution which both units submit to,
is a requirement. None of them existed in the UN sponsored federal compromise. The
Resolution had provided for a Federal Council, an institution that was a faint approximation of a
federal body. This body was to comprise Ethiopian and Eritrean representatives in equal

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numbers and advise the Emperor on matters of the federation. The Council was simply ignored
and practically done away with before it could even start functioning. As a result, the federal
powers belonged to the Ethiopian government. The Ethiopian Emperor was the sovereign, the
Ethiopian courts were the federal courts and the Ethiopian Ministers were the ministers of the
federal government. Tekeste states, 'For all intents and purposes the resulting relationship
between Ethiopia and Eritrea was not in the least federal. Even according to the intentions of
the union, Eritrea was not granted a federal status but only a status of autonomy.

However, this constitutional ambiguity could not serve as a justification for not implementing
even the regional autonomy. Even Eritrea's mere status of autonomous region was not
tolerated by Haile Selassie's regime. The reasons as stipulated by many writers seem to relate
to the nature of the two incompatible Constitutions. Ethiopia by then had a feudo-monarchichal
system of government, ideologically sustained by some notion of the divine right of kings. It was
imperial. The emperor ruled as an absolute monarch and as head of an empire every part of
which he sought to subordinate to himself. The government had a notion of territorial integrity
that was incongruent with federal or other structures of decentralization and hence the
dissolution was no surprise. By contrast, the Eritrean Constitution was one modeled on those of
Western democracy. It provided for three branches of government based on rule of law, it
stipulated for fundamental freedoms and a multi-party system.

Haile Selassie demonstrated a considerable diplomatic success when he orchestrated a

federation between Ethiopia and Eritrea with the approval of the UN. However, the regime
lacked the political wisdom and political will to maintain the regional autonomy. As early as
1955 the Emperor's representative in Eritrea already hinted at the fact that 'there are no internal
or external affairs as far as Ethiopia is concerned…' and pointed out that 'the affairs of Eritrea
concern Ethiopia as a whole and the emperor.' In 1958 the Eritrean Assembly voted
unanimously to abolish the Eritrean flag and use only the Ethiopian flag. In 1959 the Ethiopian
Penal Code replaced the existing legislation in Eritrea. In 1960 the Eritrean assembly voted
unanimously to change the name Eritrea government to Eritrean administration and other
adjustments connoting its lower position than a federation. On 14 November 1962 again the
Assembly voted unanimously for the abolition of the federation. Whether this important series of
events was undertaken with full backing from the Ethiopian side or not is a troublesome
question. But few seem to doubt the fact that these events were taking place with full
knowledge and influence from both sides of the 'federation.' In as much as the Imperial regime
had wanted to terminate the federation, the Eritrean Union Party, the then governing party in
Eritrea, cooperated equally to the demolition of the autonomous status.

The 1955 Revised Constitution

This Revised Constitution was a long time in preparation. The Emperor said that the process
took six years. It was noted in July 1952 that the revision was under way. The lengthy
procedure itself marks a considerable development from the informal drafting of 1931. The first
formal step appears to have been the setting up of a committee of ministers under the

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chairmanship of the Prime Minister. The name of the then prime minister was Bitwadad
Makonnen Endalkachew. This Committee suggested a number of changes to the existing
Constitution. Those suggested changes included provisions on the status of the family, non-
retroactivity of legislation, and freedom of speech and assembly, the liability of ministers and
civil servants and the need for additional parliamentary representation of large cities.

These suggestions in turn served as a base for the work of the Constitutional Commission. The
Commission worked in a house in the Palace grounds with the close supervision of the
Emperor. Three American legal advisors did most of its detailed work. Even if these foreign
experts prepared the most part of the draft, they worked under the close supervision of
Ethiopian officials. The Commission started intensive work in the summer of 1953. Its first
completed draft was dated 2 February 1954. It was written in English. And was translated into
Amharic by the Imperial Chronicles Department. Twenty-one months were to elapse between
this draft and the final promulgation of the Revised Constitution. This fact indicates the leisurely
pace at which the revision was carried out. This fact also suggests that the government was
under no urgent pressure for reform.
The draft was then submitted for revision and review to the Emperor, the leaders of the Church
and the nobility, and important officials. Five amended versions were produced between
February 1954 and June 1955, adapting the original to their suggestions. As in 1931, the
agreement of the major figures of the country was needed. The agreement was necessary to
secure a general acceptance of the new Constitution. And in particular, the agreement was
needed to persuade conservative nobles and churchmen to accept its more liberal aspects.
This process was carried out more institutionally than in 1931. Ras Kass took the role of
convincing the conservatives to accept the most liberal aspect of the revised constitution. Ras
Kass was the cousin of the Emperor and was the most influential figure of the day. Ras Kass
was one of the great lords who had considered the Constitution of 1931, and so great was the
respect in which the Church and the noblemen held him that his support was essential for
general consensus.

The 1955 Revised Constitution replaced the 1931 Constitution. The constitution was a grant for
it was not a product of popular vote. This constitution consolidated absolutism. The constitution
created the impression that Ethiopia is modern. The revised constitution was, among others, an
attempt to solve the problem created by the side-by-side existence of the 1931 Constitution with
the more advanced constitution of Eritrea, which, since 1952, had been federated with Ethiopia
as per the decision of the United Nations.

The Revised Constitution solidified absolutism of the monarchy. Two chapters were devoted to
the institution of the monarchy. These two chapters dealt with the Solomonic root of the dynasty,
the sacredness of the person and dignity of the Emperor, etc. There were provisions indicating
the Emperor's power over the executive and the judiciary. He had power to appoint the
members of the Senate; the Senate was one of the two chambers of legislature. He also had
power to dissolve the House of Deputies. The House of the Deputies was the lower chamber of
parliament. Moreover, he had a co-legislative function reserved to him. He could veto power

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legislation passed by the parliament. He had the power to issue decrees on emergency
situations when the parliament is not in session. He is the commander-in-chief of the army. He
guides and directs all activities pertaining to foreign relations. Taking advantage of the absence
of the principle of secularism and being "defender of the Holy Orthodox Faith", he exercised
power over the church. He had oversight of church activities. He issued all church decrees,
edicts, and regulations. He approved the election and appointment of the Patriarch (Abun). The
various institutions attempted to assert their powers. For example, exploiting the principle of
checks and balances, the chamber of Deputies used to exercise their power to question the
executive (i.e. the ministers) when they appear for reports especially on matters relating to
budget.

The Revolution-Background

The Revolution and the Coming to Power of the Military: Towards the end of the imperial
regime, the centralization and the tension between the traditional forces backing the regime and
the modern elite was gaining momentum. Opposition to the regime took many forms. Perhaps
the 1960 attempted coup-d’etat was a watershed. Infuriated with Ethiopia’s backwardness
compared to the newly emerging states in Africa, the designers wanted to restore Ethiopia to its
proper place. They promised new factories and schools and also had a plan of introducing a
constitutional monarch although the land issue was not raised. Despite its failure the coup
succeeded to attract the attention of the university students who became the heirs of the rebels.
It was fundamental in the sense that for the first time many realized that the regime whose
legitimacy came from the divine right to rule could be overthrown.

The aristocracy that had lost its military and administrative functions to the new elite was no
longer the pillar of the monarchy. The young returnees from school abroad on the other hand
thought they were working for a regime in which personal loyalty was of prime importance. It
was clear to them to see how ignorant, corrupt and inefficient their superiors were. In the
course of the 1960s and 1970s the new elite armed with western ideology became the main
antithesis of the ancient regime. Alienated from the center and backed by Ethiopia’s traditional
opponents of the Middle East, Somalia, Eritrea, Oromos of Bale and the Ogaden were
challenging the center. Finally, in the early 1970s, the regime lost two of its Western allies, the
United States and Israel at a time when the Middle East was in ascendance because of the
power and prestige it derived from its ability to control oil prices. With a view to end hostilities in
Eritrea and Somalia and following Arab-Israeli war in 1973 Ethio-Israeli relations were severed.
This was followed by cold diplomatic reactions from the United States apparently taken to
accommodate the Arabs.

Finally, the urban uprising of 1974, the events of January to June of the same year showed a
total collapse of the regime and the absence of any obvious successor to it. It should be noted

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though that when the revolution was about to erupt, the nations teachers, taxi drivers, students,
unemployed and the labor union had shown a stake in it thus making it very popular at
inception, towards the end of February the cabinet of Aklilu Habetewold was forced to resign
and Endalkachew Mekonene was instructed to form a new cabinet but despite the good profile
of the team, it never succeeded to stop the course of the Revolution. The plea for patience
(fata) fell on deaf ears and indeed the radicals insisted gulcha bikeyer wot ayatafitim (changing
the stove does not make the stew any better). Endalkachew was removed in July and replaced
by Mikael Imiru, the latter to be replaced soon by the Derg.

Another crucial aspect of the revolution, however, came from the military. It started with a
modest request for economic and social reform like food and uniforms for their members but as
many have described it became a ‘creeping coup’ implying the slow but systematic erosion of
imperial power culminating in the deposition of the Emperor. Towards June of 1974 the Derg
(which means committee in Amharic) which started as a movement within the capital was
subsequently broadened with the inclusion of representatives of various units from all over the
country and slowly it grew into a military parliament, constituting some 120 members under the
chairmanship of General Aman Mikael Andom and Mengistu as the first vice chairman, mainly
constituting lower ranking officers. Taking the lessons of the 1960s, the Derg expressly
declared loyalty to the emperor and did not show any ambition to size power.

As far as the affairs of the government were concerned dual power prevailed for some-thing like
a month between that of the Endalkachew cabinet and the Derg but powers continued to shift
out of the hands of the former to the latter. However, the Derg had already the armed forces,
the media and police behind it and also secured the blessing of the Emperor. The cabinet was
already divided between those working with the Derg and those who opposed it. The Derg
continued to replace or isolate those who were not amenable to its whims. As a result Micheal
Imiru replaced Endalkachew Mekonen as a Prime Minister on July 22. The Derg arrested the
then Minister of defense Abiye Abebe and replaced him by Aman Andom. This time Derg’s
control of the cabinet was almost complete.

The Derg continued to weaken and abolish all institutions associated with the Emperor and
finally confiscated businesses owned by the Emperor and the royal family. On 11 September,
the ultimate attack against the Emperor was perpetrated as the famous film on the 1973 famine
(that was kept secret) produced by Jonathan Dimbleby was made public. On September 12,
1974 the Derg suspended the Constitution, deposed the Emperor, and dissolved parliament,
thus ending the regime. Although the Derg took over power from June 1974 with the set-up of a
military committee, 12 September 1974 marks the official taking over of power. A convergence
of domestic as well as international factors fueled by the urban uprising reflecting regional,
ethnic as well as class contradictions as championed by the student movement, was
accelerated by the military thus ending the regime with its Solomonic legend. Not only did it end
the Monarchy but this time the Derg filled the political vacuum by introducing socialism., a
complete change of direction.

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What is unfortunate about the Revolution was that despite its popular background, there was no
organized civil force that could articulate ‘road map’ for the masses. It was only the military that
was organized and that filled the political vacuum. The two leftist political groups that were in
existence allegedly, MEISON (All Ethiopian Socialist Movement) as of 1968 and EPRP
(Ethiopian Peoples Revolutionary Party) as of 1972 had remained clandestine and their
activities were limited to their student constituency. The military as the only organized force,
therefore, exploited the existing power vacuum and easily took over leadership of the revolution.
Because of this, what came to power was the military, not the revolutionaries, defeating the
cause of the revolution. Through the mentors, mainly MEISON, the Derg was able to catch up
with the leftist dialogue and declared the National Democratic Revolution (NDR)Program in
1976 and its ultimate objective was the setting up of the Peoples Democratic Republic of
Ethiopia (PDRE) which came out in 1987. From 1974 up to 1987 the Derg ruled by decree.

Richard Pankhurst, A History of Early 20th Century Ethiopia, (Civic Webs Virtual Library,
Accessed 2 April 2005).

Complaints at the slow pace of Ethiopian economic development, which was seen as comparing
unfavorably with that of other African countries, and criticism of the Emperor's autocratic rule,
led to an escalation of political discontent in the late 1950s. During his absence on a state visit
to Brazil, in December 1960, his Imperial Bodyguard staged a coup d'etat. Its mastermind was
Garmam Neway, an American-educated radical and dedicated civil servant, whose brother,
Mangestu, happened to be head of the bodyguard. The plotters arrested most of the Ministers,
several of the Emperor's closest confidants.

The coup received immediate support from University College students, who demonstrated in its
favor. The population as a whole, however, failed to rally behind the insurrection, as Garmam
and Mangestu had hoped. The coup was speedily crushed by the army and air force. Before
surrendering, however, the plotters killed most of their ministerial prisoners. The Emperor, who,
on hearing the news of the rebellion, had immediately decided to return, entered Addis Ababa in
triumph. The coup's student supporters on the other hand refused to accept defeat. In the
months and years which followed they continued to agitate, and gradually succeeded in
permanently politicizing the country's steadily expanding student body.

Discontent in Ethiopia itself was by then markedly on the increase. Students, particularly after
1965, demonstrated against the government more or less regularly each year, with escalating
determination. They focused on the need for land reform, with the cry, "Land to the Tiller!", as
well as on the treatment of the capital's beggars, on the alleged corruption of senior officials, on
the catastrophic famine of 1972-4 in Tegray and Wallo, which was comparable in intensity only
to the Great Famine of the previous century, and on rising prices. Discontent also manifested

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itself in several small-scale peasant disturbances, mainly in the southern provinces, and in on-
going agitation among the trade unions many of whose members thought that their official
leadership was too subservient to the government.

Many people, even within the ruling elite, were moreover increasingly of opinion that the then
Ethiopian mode of government was antiquated. Many were also concerned that the ageing
Emperor was not apparently grooming his heir, the Crown Prince, to succeed him. Haile
Sellassie, then in his eighties, was by this time increasingly concerned with foreign rather than
internal affairs, and had relaxed his previous day-to-day scrutiny and control over the
administration. The Government, as a whole, seems moreover to have been half-hearted in its
recognition of the need for reform.

It was decided in 1960 that the Prime Minister, Aklilu Habtawald, instead of the Emperor, should
choose the cabinet, but this limited constitutional reform failed to change either the composition
or the spirit of the administration, and left the government's critics unsatisfied. A landlord-tenant
reform bill was presented to Parliament in 1968, but met with such strong opposition in the
landlord-dominated assembly that it had not been passed six years later when the Revolution
erupted.

The Draft Constitution (1974):

In the year 1974/75, Emperor Haileselassie I sponsored a draft constitution. The draft was
finalized. The principal aim of the draft constitution was to calm down the various uprisings
against his rule, among others, by trying to put a constitutional monarchy in place. A
constitutional monarch exists when a constitution actually limits the absolute powers of a royal
family or institution. The draft constitution did not come into effect for the revolution destroyed
the absolute regime.
Ethiopia under the PMAC (1974-1987):
There is a controversy on the issue of whether Ethiopia had a written constitution in this period.
There are some who believe that the Provisional Military Administrative Council (the PMAC)
ruled the country without any, written or unwritten, constitution. On the other hand, others such
as Fasil Nahum think that Ethiopia had had a written constitution in the course of 13 years. He
argues, in his article published in the Journal of Ethiopian Law, that even if there was no single
document that may be called a constitution the basic tenets of the socialist government were
embodied in several proclamations. Some of these proclamations were: the proclamation that
nationalized rural land, the proclamation that nationalized urban land and extra-houses, the
proclamation that nationalized key means of productions and the proclamation that provided for
the establishment of mass associations. Fasil argues that the 1987 PDRE Constitution merely
elaborated and refined these basic socialist prescriptions. So, he concludes that the
constitutional principles of the then Ethiopia were found in these major statutes. Do you agree
with his analysis?

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The answer to the issue at hand, whether Ethiopia adopted in this period a constitution,
depends on the type of definition of a written constitution one has in mind. You can define a
constitution as a document that describes the powers and responsibilities of the various organs
of government. You may view a written constitution as a document that includes the powers and
responsibilities of the branches of a government as well as the rights and obligations of citizens.
Third, you may approach the definition of a constitution in terms of a process, which means the
process of incorporating powers of the different segments of the government, describing the
rights of citizens including human rights. You may approach the definition of a written
constitution as a document that outlines the powers and responsibilities of the branches of a
government including the rights of citizens, and such prescriptions are to be observed in
practice. Do you think that Ethiopia did have a document or documents which qualify any of
these definitions in the period between 1974 and 1987?

PDRE Constitution (1987-1991)

 On February 1, 1987, the proposed constitution, which had been submitted to the public for
popular debate and changes the prior year, was finally put to a vote. Although the central
government claimed an 81 percent approval of the new constitution (with modifications
proposed by the public), the circumstances of its review and approval by the general
population were called into question.
 The task of publicizing the document had been entrusted to the kebeles and the peasant
associations--organizations that had a state security mission as well as local administrative
duties. Observers noted that little commentary or dissent was possible under such
circumstances.
 Additional criticism included the charge that the proposed constitution was not designed
to address or even understand Ethiopian needs; in fact, many noted that the constitution
was "almost an abridged translation of the Soviet Constitution of 1977."
 The People's Democratic Republic of Ethiopia: On September 10, 1987, after thirteen
years of military rule, the nation officially became the PDRE under a new constitution
providing for a civilian government.
 The PMAC was abolished, and in June of that year Ethiopians had elected the National
Shengo (National Assembly), a parliament. Despite these changes, members of the now-
defunct Derg still ran the government but with different titles. For example, the National
Shengo elected Mengistu to be the country's first civilian president; he remained, however,
the WPE's general secretary. Other high-ranking Derg and WPE members received similar
posts in the new government, including the Derg deputy chairman, Fikre-Selassie
Wogderes, who became Ethiopia's prime minister, and Fisseha Desta, WPE deputy general
secretary, who became the country's vice president.
 Despite outward appearances, little changed in the way the country was actually run. Old
Derg members still were in control, and the stated mission of the WPE allowed continued
close supervision by the government over much of the urban population. Despite the
granting of "autonomy" to Eritrea, Aseb, Tigray, Dire Dawa, and the Ogaden, the 1987
constitution was ambiguous on the question of selfdetermination for national groups such as
the Eritreans, except within the framework of the national government. And although the
constitution contained provisions to protect the rights of citizens, the power of peasant
associations and kebeles was left intact.

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 The 1987 Constitution: The primary task facing the WPE following its formation in 1984
was to devise the new national constitution that would inaugurate the People's Democratic
Republic of Ethiopia (PDRE). In March 1986, a 343-member Constitutional Commission was
formed to draft a new constitution based on the principles of scientific socialism. Eventually,
the 122 full and alternate members of the WPE Central Committee who had been appointed
to its membership dominated the commission.
 The Constitutional Commission had its origins in the Institute for the Study of Ethiopian
Nationalities, which the Derg had established in March 1983 to find solutions to problems
resulting from Ethiopia's extreme ethnic diversity. The institute was staffed mostly by
academics from Addis Ababa University, who continued to serve as advisers to the
Constitutional Commission. The commission's diverse membership included religious
leaders, artists, writers, doctors, academics, athletes, workers, and former nobility. There
was also an attempt by those who chose appointees to the commission to make sure that all
major ethnic nationalities had representation in the body.
 For about six months, the commission debated the details of the new constitution. In June
1986, it issued a 120-article draft document. The government printed and distributed 1
million copies to kebeles and peasant associations throughout the country. During the next
two months, the draft was discussed at about 25,000 locations. The regime used this
method of discussion to legitimize the constitution-making process and to test the mood of
the populace. In some cases, people attended constitutional discussion sessions only after
pressure from local WPE cadres, but in other cases attendance was voluntary. Where
popular interest was apparent, it centered on issues such as taxes, the role of religion,
marriage, the organization of elections, and citizenship rights and obligations. By far the
most controversial draft provision was the one that outlawed polygamy, which caused a
furor among Muslims. Few questions were raised about the document's failure to address
the nationalities problem and the right to selfdetermination. According to government
officials, the citizenry submitted more than 500,000 suggested revisions. In August the
commission reconvened to consider proposed amendments. In all, the commission
accepted ninety-five amendments to the original draft. Most of the changes, however, were
cosmetic.
 The constitution officially took effect on February 22, 1987, when the People's Democratic
Republic of Ethiopia was proclaimed, although it was not until September that the new
government was fully in place and the PMAC formally abolished. The document, which
established the normative foundations of the republic, consisted of seventeen chapters and
119 articles. The preamble traced Ethiopia's origins back to antiquity, proclaimed the
historical heroism of its people, praised the country's substantial natural and human
resources, and pledged to continue the struggle against imperialism, poverty, and hunger.
The government's primary concern was proclaimed to be the country's development through
the implementation of the Program for the National Democratic Revolution (PNDR). In the
process, it was assumed that the material and technical bases necessary for establishing
socialism would be created.
 The constitution attempted to situate Ethiopia in the context of the worldwide movement of
so-called "progressive states" and made no direct reference to Africa. Critics claim that the
constitution was no more than an abridged version of the 1977 Soviet constitution, with the
exception that strong powers were assigned to the newly created office of the president. A
second difference between the Ethiopian and Soviet constitutions is that the former declared
the country to be a unitary state rather than a union of republics. It was reported that the
problem of nationalities was hotly debated in the Constitutional Commission, as well as in
the WPE Central Committee, but the regime would not abandon its desire to create a single
multiethnic state rather than a federation.

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 The Constitution advocated for socialist values and national unity. The provisions of the
constitution affirmed socialist values. The preamble starts by making the "working people of
Ethiopia" owners of the constitution. It stresses their determination to fight backwardness
and to transform the country into a socialist society. It aspires to attain development with
the ideals of justice, equality, and social prosperity. Recognizing the long history of
independent survival, the preamble further goes to note the fact that Ethiopia is a
multinational state with various nationalities and diverse communities with essential unity
created by cultural intercourse, migration, and commerce. Moreover, the inviolability of the
country is stressed. The history of oppression and exploitation, of hunger, disease and
mass death in feudal Ethiopia is noted. The fact that the PMAC emerged as a vanguard
leadership of the revolution and took revolutionary measures was taken into account. Some
of the activities in this regard included abolition of the monarchy, nationalization of rural
land, urban land, extra houses, major enterprises, and ensuring equality of nationalities,
sexes, and religions. The fact that development is the primary concern is stressed.
Completion of National Democratic Revolution (NDR) to lay the basis for socialism is stated
as the aspiration. Furthermore, the supremacy of the constitution is asserted. That it is the
expression of the sovereignty and unity of the country that it ensures the equality of
nationalities based on the right to self-determination, that it guarantees freedoms and rights
are all made explicit in the preamble.
 Chapter 1 of the Constitution defined Ethiopia's social order. The People's Democratic
Republic of Ethiopia (PDRE) was declared to be "a state of working peasants in which the
intelligentsia, the revolutionary army, artisans, and other democratic sections of society
participate." The commitment to socialist construction was reaffirmed, as was the idea of
egalitarianism within the context of a unitary state. The official language remained Amharic.
The functioning and organization of the country was proclaimed to be based on the
principles of democratic centralism, under which representative party and state organs are
elected by lower bodies. The vanguard character of the WPE was asserted. And its roles as
well as those of mass organizations were spelled out.
 Chapter 2 dealt with the country's economic system. The state was dedicated to the creation
of a "highly interdependent and integrated national economy" and to the establishment of
conditions favorable to development. In addition, the constitution committed the state to
central planning. The chapter included state ownership of the means of production,
distribution, and exchange, expansion of cooperative ownership among the general
population.
 Chapter 3 addressed social issues, ranging from education and the family to historical
preservation and cultural heritage. The family was described as the basis of society and
therefore deserving of special attention by means of the joint efforts of state and society. In
addition, the constitution pledged that health insurance and other social services would be
expanded through state leadership. National defense was the subject of Chapter 4. The first
article asserted the nation's need to defend its sovereignty and territorial integrity and to
safeguard the accomplishments of the revolution. It was declared that the Ethiopian people
had a historical responsibility to defend the country. The defense force was to be the army
of the country's working people. The army's fundamental role would be to secure peace and
socialism.
 Foreign policy objectives were spelled out in four brief articles in Chapter 5. The foreign
policy objectives were based on the principles of proletarian internationalism, peaceful
coexistence, and nonalignment. Chapters 6 and 7 were concerned with defining citizenship
and spelling out the freedom, rights, and duties of citizens. Ethiopians were declared to be
equal before the law, regardless of nationality, sex, religion, occupation, and social or other
status. They had the right to marry, to work, to rest, to receive free education, and to have
access to health care and to a fair trial. Ethiopians were guaranteed freedom of conscience

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and religion. Unlike the Revised Constitution, religion and the state were proclaimed to be
separate institutions. Citizens were assured the freedoms of movement, speech, press,
assembly, peaceful demonstration, and association. Regarding political participation,
citizens had the right to vote and the right to be elected to political office. Their duties
included national military service, protection of socialist state property, protection of the
environment, and observance of the constitution and laws of the country.
 The constitution's most detailed sections related to the central government's organization
and activities. In these sections, the document described the various state organs and
explained their relationship to one another. The supreme organ of state power was the
National Shengo (National Assembly). Its responsibilities included amending the
constitution; determining foreign, defense, and security policy; establishing the boundaries,
status, and accountability of administrative regions; and approving economic plans. The
National Shengo was also responsible for establishing the Council of State, the Council of
Ministers, ministries, state committees, commissions, and state authorities, the Supreme
Court, the Office of the Prosecutor General, the National Workers' Control Committee and
the Office of the Auditor General. In addition, the National Shengo elected the president and
officials of the Council of State and approved the appointment of other high-ranking
authorities.
 Candidates to the National Shengo had to be nominated by regional branches of the WPE,
mass organizations, military units, and other associations recognized by law. Balloting for
seats in the National Shengo was required to be secret. All individuals eighteen years of age
and above were eligible to vote. Elected members served five-year terms. The body met in
regular session once each year. These sessions were usually public but might on occasion
be held in camera. In 1987, the National Shengo had 835 members.
 The Council of State consisted of the president of the republic, several vice presidents, a
secretary and other members. The Council of State was an organ of the National Shengo.
The Council of State served as the most active oversight arm of the government. The
Council of State exercised the national legislative role when the National Shengo was not in
session. In addition to its normal functions, the Council of State was empowered to establish
a defense council. The National Shengo might assign special duties to the Council of State.
The Council of State had the further authority to issue decrees in the pursuit of the duties
stipulated by law or assigned by the National Shengo. The power of this organ was clear in
the constitutional provision. For example, a provision in a constitution stated that: "When
compelling circumstances warrant it, the Council of State may, between sessions of the
National Shengo, proclaim a state of emergency, war, martial law, mobilization or peace."
 The 1987 Constitution established the office of president. Apparently, the Council of State
ruled along with the president and exercised legislative oversight in relation to other
branches of government. In reality, however, the office of the president in particular and the
executive branch in general were the most powerful branches of government. The president
was able to act with considerable independence from the National Shengo.
 Although the constitution stipulated that the president was accountable to the National
Shengo, President Colonel Mengistu Hailemariam demonstrated repeatedly that there was
no authority higher than his own office. By law he was responsible for presenting members
of his executive staff and the Supreme Court to the National Shengo for election. At the
same time, the president, "when compelling circumstances warrant it" between sessions of
the National Shengo, could appoint or relieve the prime minister, the deputy prime minister,
and other members of the Council of Ministers; the president, the vice president, and
Supreme Court judges; the prosecutor general; the chairman of the National Workers'
Control Committee; and the auditor general. The National Shengo was by law supposed to
act on such decrees in its next regular session, but this appeared to be only pro forma.

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 The president could be elected to an indefinite number of successive five-year terms. The
president could submit nominations for appointment to the Council of Ministers (his cabinet)
to the National Shengo for approval. However, by the time nominations reached the National
Shengo for consideration, their appointment, in practice, had already been decided. In
practice, President Mengistu would chose individuals for particular offices without any
apparent input from the National Shengo, the WPE, or the Council of State. The president,
who was also commander in chief of the armed forces, was also responsible for
implementing foreign and domestic policy, concluding international treaties, and establishing
diplomatic missions. If he deemed it necessary, the president could rule by decree.
 The Council of Ministers was defined in the constitution as "the Government.`` The Council
of Ministers was the government's highest executive and administrative organ. The body
consisted of the prime minister, the deputy prime minister, the ministers, and other members
as determined by law. Members were accountable to the National Shengo. But between
sessions they were accountable to the president and the Council of State. Members of this
council were chosen from regularly elected members of the National Shengo and served
five-year terms, unless they resigned or were removed by the president. For example, in
early November 1989 Prime Minister FikreSelassie Wogderes resigned his office, allegedly
for health reasons. However, some reports maintained that he was forced out by Mengistu
because of his apparent loss of enthusiasm for the regime's policies. At the same time,
Mengistu reshuffled his cabinet. Significantly, these events occurred weeks after the annual
session of the National Shengo had concluded.
 The Council of Ministers was responsible for the implementation of laws and regulations and
for the normal administrative functions of national government. It prepared social and
economic development plans, the annual budget, and proposals concerning foreign
relations. In their respective areas of responsibility, members of the Council of Ministers
were the direct representatives of the president and the government.
 In 1991 there were twenty-one ministries. Portfolios consisted of the Ministry in Charge of
the General Plan and the ministries of agriculture; coffee and tea development;
communications and transport; construction; culture and sports affairs; domestic trade;
education and fine arts; finance; foreign affairs; foreign trade; health; industry; information;
internal affairs; labor and social affairs; law and justice; mines, energy, and water resources;
national defense; state farms; and urban development and housing. In addition to these
ministries, there were several other important state authorities, such as the Office of the
National Council for Central Planning, the Institute for the Study of Ethiopian Nationalities,
the Relief and Rehabilitation Commission, and the National Bank of Ethiopia.
 The constitution provided for Ethiopia's first independent judiciary. Traditionally, the
Supreme Court and various lower courts were the responsibility of the Ministry of Law and
Justice. After Haile Selassie's overthrow, much of the formal structure of the existing judicial
structure remained intact. Over the years, regional and district level courts were reformed
somewhat. The constitution stipulated that judicial authority was vested in "one Supreme
Court, courts of administrative and autonomous regions, and other courts established by
law." Supreme Court judges were elected by the National Shengo. Those who served at the
regional level were elected by regional Shengos (assemblies). In each case, the judges
served terms concurrent with that of the Shengo that elected them. The Supreme Court and
higher courts at the regional level were independent of the Ministry of Law and Justice, but
judges could be recalled by the relevant Shengo.
 The Supreme Court was responsible for administering the national judicial system. The
court's powers were expanded to oversee all judicial aspects of lower courts, not just cases
appealed to it. At the request of the prosecutor general or the president of the Supreme
Court, the Supreme Court could review any case from another court. In addition to separate
civil and criminal sections, the court had a military section. In the late 1980s, it was thought

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that this development might bring the military justice system, which had been independent,
into the normal judicial system.
 Between 1987 and 1989, the government undertook a restructuring of the Supreme Court.
The intention of the reform was to improve the supervision of judges and of making the
administration of justice fairer and more efficient. The Supreme Court Council was
responsible for overseeing the court's work relating to the registration and training of judges
and lawyers. The Supreme Court Council's first annual meeting was held in August 1988, at
which time it passed rules of procedure and rules and regulations for judges.
 Chapter 15 of the constitution established the Office of the Prosecutor General. The Office
was responsible for ensuring the uniform application and enforcement of law by all state
organs, mass organizations, and other bodies. The Prosecutor General was elected by the
National Shengo for a five-year term. He was responsible for appointing and supervising
prosecutors at all levels. In carrying out their responsibilities, these officials were
independent of local government offices.
 Local tribunals, such as kebele tribunals and peasant association tribunals, were not
affected by the 1987 Constitution. People's courts were originally established under the
jurisdiction of peasant associations and kebeles. All matters relating to land redistribution
and expropriation were removed from the jurisdiction of the Ministry of Law and Justice and
placed under the jurisdiction of the peasant association tribunals. The members of the
tribunals were elected by association members. In addition, such tribunals had jurisdiction
over a number of minor criminal offenses, including intimidation, violation of the privacy of
domicile, and violations of peasant association regulations. The tribunals also had
jurisdiction in disputes involving small sums of money and in conflicts between peasant
associations, their members, and other associations. Appeals from people's tribunals could
be filed with regional courts. Kebele tribunals had powers similar to those of their
counterparts in peasant associations…

The Transitional Period Charter (1991-1994):

 In early 1991, the socialist government crumbled. The victorious EPRDF took over political
power. A Transitional Period Charter was adopted in June of the same year. The Charter
indicated the direction Ethiopia would follow. For example, it made the idea of
decentralization explicit. The Charter announced the idea of re-mapping of the country in
line with ethnicity. The Charter expressed the intention of the key actors to balance group
rights, the rights of ethnic groups, and human rights. The Charter in essence put forth the
pillars of the constitution to come, the FDRE Constitution.
The FDRE Constitution
 The FDRE Constitution is a text of 106 articles. The preamble gives the "ownership" of the
constitution to the "Nations, Nationalities, and Peoples of Ethiopia".
 The right to self-determination, the rule of law, democracy, economic and social
development, equality and non-discrimination are stressed. The historical and cultural
interaction of the people is noted. The need to rectify historically unjust relations is readily
pointed out. The aspiration "to live as one economic community" is made evident.
 The text of the constitution created a federal state and divides powers between the Federal
and state governments. Nine sub-national states were recognized as constituting Ethiopia.
 By adopting a federal structure, the constitution provided for plural law-making institutions.
Consequently, legislation that affect a citizen can have two sources i.e., the federal and the
state legislatures. At the federal level, a kind of parliamentary government is set up with a
parliament [called House of Peoples' Representatives (HOR)] that has supreme legislative
decision-making power. It appears that there is a bicameral legislature. Yet, in fact, that is

134
not the case for the House of Federation (HOF) has no legislative power. The HOF is
principally an institution entrusted with the tasks of interpreting the constitution.
 The FDRE Constitution also provides for a strong executive government led by a Prime
Minister. The constitution also stipulated to the effect that an independent judicial power is
established. In line with the federal set up, dual court structure seems to be the trend. The
jurisdiction of the Federal Courts vis-à-vis the state court is stated.The Constitution also
envisaged an institution in charge of assisting the HOF in the interpretation of the
Constitution, i.e., the Council of Constitutional Inquiry (CCI). The CCI, composed of legal
experts investigates constitutional disputes and submits its recommendations to the HOF.
 The offices of the Auditor General, National Election Board and the National Census
Commission are other organs established by the FDRE Constitution.The National Human
Rights Commission (HRC) and the Office of the Ombudsperson are other institutions whose
legislative establishment is envisaged by the constitution.
 The supremacy of the Constitution subordinates all laws, practices and official decisions to
the constitution and nullifies them in case they contradict it.
 The idea that international human rights instruments are to be used as standards in the
interpretation of human rights provision is another concept built into the constitution.
 The principle of secularism enunciated in Art. 11 is another principle laid down in the FDRE
Constitution. The FDRE Constitution includes the following principles: supremacy of the
constitution, human rights, secularism, transparency and accountability of government. The
FDRE Constitution declares the supremacy of the constitution and established a
constitutional state that subordinates all laws, practices, or decisions to the constitution. This
principle asserts the sovereignty of the people, the expression of which is the constitution.
Moreover, it compels any actors to observe its provisions.
 The constitution came up with the complex and rigid mode of amendment built into the
constitution. Characteristic to federal constitutions is the difficult mode of amendment. In
the FDRE Constitution, amendment of human rights provisions requires majority vote of all
state legislatures, two third majority vote of both the HPR and of the HOF, while amendment
of other provisions requires two- thirds majority vote of the joint session of HPR and the
HOF along with majority votes in 2/3 of the state legislature, i.e., in 6 of the 9 states.
 The principle of sovereignty of Nations, Nationalities and Peoples is one of the pillars of the
FDRE Constitution. Unlike the 1955 Revised Constitution that asserts sovereignty and
inalienability of the Ethiopian territory and vests this sovereignty in the Emperor, the FDRE
Constitution makes it explicit that "All sovereign power resides in the Nations, Nationalities
and Peoples of Ethiopia," further attaching to this that the constitution is "an expression of
their sovereignty."
 The other basic principle of the FDRE Constitution is the principle of Human Rights. The
constitution declares that human rights and freedoms are "inviolable and inalienable". The
fourth basic principle of the FDRE Constitution relates to the separation of religion from
state. According to Article 11, "State and religion are separate."
 The last norm in the list of fundamental principles of the constitution is the principle of
transparency and accountability of government. The conduct of affairs of government shall
be transparent. It also stresses the fact that "any public official or an elected representative
is accountable for any failure in official duties." The possibility of recalling an elected official
"in cases of loss of confidence" is reserved.
 There is a rule that holds the Prime Minister and the Council of Ministers accountable to
HPR. There is the requirement that the council of ministers get the approval of the HPR in
order to exercise its emergency powers. There is also the need to consult the people on
environmental policies. These rules are examples of rules that reinforce the principle of
accountability and transparency of government.

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Collective self-redefinition
 The Ethiopian Constitution: As with all constitutions, the Ethiopian Constitution was
drafted to address the ills of the previous regime and the political turmoil that preceded it.
The new Constitution then becomes a sort of solution or recipe to remedy past mistakes,
and to put the nation on the path of a chosen policy. The language of the Ethiopian
Constitution makes its goals and remedies very clear, especially considering Ethiopian
political history and the strife it has experienced during this century.
 In its brief existence, the Constitution has drawn only a modest amount of scholarly
attention. Much of this work was written at almost the exact moment the Constitution was
ratified, calculating the time for publication and editing. Of course, most of the authors were
attempting to evaluate the Constitution and determine whether it would accomplish its
ratifiers' goals.
 The Constitution's Preamble specifically sets forth Ethiopia's goals. Each clause evidences
Ethiopia's past and its desired future. These goals should first trickle down from the 105
specific articles of the Constitution into Ethiopia's statutory law, administrative regulations,
codes and case law, and finally to the state and local governments. While no one disagrees
with the goals of the Preamble, commentators debate whether the cause of Ethiopia's
problem is the Constitution or some other component of Ethiopian law, such as the codes,
statutes, and administrative regulations. The Preamble is not the most comprehensive list of
Ethiopia's goals. It does, however, protect human rights and freedoms, promote economic
development, equal treatment for all ethnic groups, and democracy. The question of
Ethiopia's "true" goals is debatable, but it is enough to evaluate the Constitution to
determine whether its execution furthers the goals listed therein.
 Discussion: As with the post-ratification onset of many bodies of law, most discussion stems
from outside observers taking a critical look at the new legislation. The Ethiopian
Constitution certainly has its detractors. The few scholars who have written on the subject
within the Constitution's short new life have criticized it rather severely. These scholars tend
to have close links to the country. Most of their criticism, while raising some interesting
points, is fundamentally flawed. Specifically, Professor Haile criticizes virtually every aspect
of the Ethiopian Constitution, including human rights protections. While Haile would seem to
be qualified to comment on the Constitution soon after it was ratified, his experience with the
Ethiopian government was under Sellasie's monarchal regime.
 Many of the critical articles on the subject were written barely after the Constitution was
ratified. Now that some time has passed, the supposed fears of the Constitution's critics can
be more clearly seen, and their true causes better correlated. Jon Abbink's analysis of the
Constitution is the most accurate and objective. Abbink maintains that ethnicity must be
considered when analyzing the Constitution. Moreover, other authors, such as Professor
Bereket Selassie, Jerome Wilson, and Derege Demissie, view Ethiopia's implementation of
ethnic federalism in a much more positive light.
 The critics say that the Ethiopian Constitution's content is excellent in many ways. The
criticism mainly revolves around the issue of ethnicity in the Constitution, and that any
reflection of ethnicity in its provisions creates a shroud of failure. In the years since the
passage of the Constitution, however, despite some cultural road blocks, the fears of
secession and ethnic quarrels have not been realized. Yet, as these authors have
speculated, the humans rights violations and workings of democracy have failed. The actual
causes, however, are not rooted in the Constitution itself. Moreover, a proper evaluation of
the history and characteristics of Ethiopia demonstrate that they support the ideals and
workings of the Constitution; they do not work against it.
 Western Characteristics of the Ethiopian Constitution: The United States' and Ethiopian
Constitutions are similar. The Ethiopian Constitution is essentially Western. This quality, in

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and of itself, has been viewed as a detraction. Not only does the Ethiopian Constitution have
content similar to the United States Constitution, such as a federalist design and protection
of liberties, but United States common law interpreting the Constitution is actually
implemented in the Ethiopian Constitution itself. For example, a provision mimicking Miranda
rights, which is only a small part of United States Constitutional case law, is included directly
in the text of the Ethiopian Constitution.
 Professor Haile's assertion that Ethiopia is still experiencing economic strife and no actual
enforcement of individual or democratic liberties is correct. The problems, however, are not
rooted in the Constitution or its demarcation with ethnicity. Neither is the problem rooted in
the failure to properly follow the western federalism recipe. Such conclusions are difficult to
support when an article is published barely a year after the Constitution was officially
ratified. The United States Department of State on January 30, 1997, and on January 30,
1998 issued reports on human rights practices. These reports, along with some news
reports, shed light on how Ethiopia and its Constitution are adapting to the first democracy in
Ethiopia's history. Although Haile relied on a 1996 U.S. State Department Report, it was
published a year earlier, and the information was presumably gathered months before it was
actually issued. As Mattei points out, laws in Ethiopia cannot be analogized to laws applied
in Western societies such as the United States. Almost all critics warn that the federal nature
of the Constitution is weak and that the Constitution dangerously relies on ethnicity as the
standard for many of its determinations. Although a reliance on ethnicity is perhaps not the
best method for making determinations, it does serve some useful purposes for the time
being. Specifically, if such reliance minimizes the dangers due to Ethiopia's unitarial nature.
Furthermore, it allows for the release of tensions that would otherwise build up if Ethiopia
became too centralized or nationalistic after hundreds of years of monarchal rule, and a
decade of dictatorial rule, during which one ethnic culture was dominant.
 One weakness of the Ethiopian Constitution is that it does not follow some of the better
aspects of the United States Constitution. The problem is not that the vague western
principles are not being properly followed, or that the United States' Constitution is not
followed exactly. Rather, the Ethiopian Constitution is too complex. Ethiopia, like many
African and Middle Eastern countries, has borrowed heavily from civil law countries such as
France. Civil law, unlike common law countries, which have more complex, detailed law,
tends to be more simple. Although it would seem that laws from civil law countries would
tend to be more simple, that is not the case here.
 Mattei is correct in asserting that culture is an important consideration to the application of
the Ethiopian Constitution. Although cultural considerations are a significant factor, Mattei's
analysis is not on point. The use of the term "western" alone does not make the application
difficult. Rather, the underlying principles distinguish the different cultures. For example,
principles of individuality and freedom, instead of Ethiopia's tradition of monarchal rule,
should not be viewed as "western" just because they originated in strong western legal
roots. Even the western origins began in cultures with a strong history of oppressive
monarchal rule.
 The strength of the United States Constitution is that it is simple, yet its structure allows it to
grow and adapt to the evolving social and political processes. The United States
Constitution remains the longest surviving constitution, and many countries have replicated
its effect. Its effectiveness, however, is not simply because it is a product of a "western"
culture. Rather, it is the underlying principles of a free and open society that establishes the
constitution's effectiveness. Thus, its principles have been adapted to very diverse cultures
with great success. For example, after the Allied Occupation of Japan, a very "un-Western"
culture, and Germany, both countries adopted constitutions strongly influenced by the
United States' Constitution. Furthermore, they continue to thrive while retaining their unique

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cultural characteristics. Due to technological advances in association with freer political
movements and governmental structures, societies around the globe are gaining freedom.
 Contrary to Mattei and Haile's cultural reasoning, the ethnicity aspect of the Constitution will
be a relief of ethnic tension, rather than a problem. Moreover, you can apply principles of
United States constitutional law to Ethiopia and Africa. In the ethnic considerations,
however, the Constitution must protect democracy and individual rights in the process, as
Abbink concludes. Specifically, Abbink states that ethnicity should be encouraged if: [F]irst,
it is generally interpreted and implemented as liberation and democratization; secondly, it is
sustained also in the domain of respecting individual human rights within the ethno-regions;
thirdly, it works in the economic domain: and finally, it is a tendency and frame of mind
accepted by the "rural masses," the majority. Ethiopia, while struggling to better human and
individual rights, is also battling to improve in

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