Introduction to law which are accepted by the community as contravenes the Constitution shall be of no

determining the methods by which law is to be effect. Thus, a law will derive its force only
FORMAL SOURCES OF LAW created, and those presuppositions will vary where it is made in line with the Constitution.
from one community to another The substance or content of the law shall be
The elements of formal sources of law are:
valid tested against the supreme law of the
sovereignty; procedural values; and B) Procedural Validation country.
constitutional values of a law that derives its
validity. There are procedures a particular draft of law In general, when we say source of law, we
should pass through in order to get its binding meant that from where the law derives its
A) Sovereignty force. As it is provided under the FDRE binding force and its contents. Source of a law
Constitution (Art 57), laws should be may be formal or material. We have seen that
As a postulate to explain the working of a legal
deliberated upon. Then, the House of Peoples’ material source of law is that from which the
order, the concept of sovereignty has its uses.
Representatives will pass it. After that, the law derived the matter, i.e. the content. A
Nevertheless, the term is used with so many
President of the Country signs the law. Next, it formal source of law is that from which a rule
conflicting meanings and so easily stirs the
should be promulgated on Negarit Gazeta so as of law derives its force and validity.
emotions that it is better for jurisprudence to
the court to have take judicial notice and apply
forgo its use. The ‘initial premise’ is a better
it to solve practical disputes brought before it We discussed that custom is material source of
and more neutral phrase: there is no need for
[Arts. 57 of the FDRE Constitution; and Proc. law because the law derives its contents from
jurisprudence to postulate sovereignty in the
No 3/1995, Art 2). the custom. Custom is a set of social attitudes
sense of power that is unlimited, illimitable,
that the society regarded as part of law and
and indivisible. These qualities are not a priori C) Substantive Validity enforced. Custom, to be regarded as source of
necessary, but depend only on particular
law, it must be reasonable; be consistent with a
political theories, as is demonstrated by a study Every law shall conform to the rules and
written law; be observed as of right; it should
of the functioning of actual states. The basis of principles to the FDRE Constitution. Pursuant
law is a legal order, the presuppositions of to Article 9(1) of the Constitution, a law that
have been continuously in existence from the and administrative law [What is Law? that the operation of mines, of
time immemorial; and be certain. Pp, 8-9]. waterfalls, and of railways is governed
 Constitutional law defines the by provisions of administrative law. In
 CLASSIFICATION OF LAWS organization of the state, its addition, the creation and functioning
 PUBLIC AND PRIVATE LAW fundamental rules, mode of of certain groups of persons, such as
 Public law regulates the acts of government, and the attributions of its labour unions, associations, and
persons who act in the general interest, political organs, their limits and their mutual aid societies are governed by
in virtue of a direct or mediate relations administrative law, even though
delegation emanating from the  Constitutional law deals with the private persons may be acting in their
sovereign [What is Law? Pp, 8-9]. As ultimate questions of the distribution own private interest
Salmond propounded ‘public law’ is of legal power and of the functions of  Criminal law, the infliction of
not the whole of the law that is the organs of the State punishment directly by the organs of
applicable to the state in its relations  Administrative law regulates the the state, is also usually regarded as
with its subjects, but only those parts operation of the executive power in all falling under the head of public law.
of it which are different from the its degrees, beginning with cabinet Some would say that civil procedure
private law concerning the subjects of ministers and descending to its most should also be placed in this section,
the state and their relations to each humble representatives. It also since these rules regulate the activities
other. Private law is thus the residue of regulates such local, departmental and of courts, which are mere agencies of
the law after we subtract public law communal administrations. Very wide the State; but civil procedure is so
[Paton, 1967, Pp. 291-92]. in its application administrative law linked with the enforcement of private
 Private law regulates the acts, which comprises many matters, which rights that it is more convenient to
individuals do in their own names for impinge upon private law. This is regard it as belonging to both public
their own individual interest. Public because the administration often takes and private law [Paton; 1967: 292].
law is sub divided into constitutional individuals under its tutelage. It is thus
 Private law governs in principle all the international law. Public international different names. For instance it is called
acts of individuals in their private law regulates the relation between states. conflict of laws
capacity. However, in France and in For example the relations between
most civilized states, it is at present Ethiopia and Sudan are governed by public B) National law- law that pertains to a

divided into three sections. They are international law. Private international particular nation (as opposed to

civil law, procedure, and commercial law, on the other hand, governs the international law)

law. relations between individuals of different

 It is a law of a nation, for example
 INTERNATIONAL AND nationals. Different nationals involve in
the law of the United States of
NATIONAL LAW commercial and other civil transactions
America, France, or Ethiopia.
 A) International law beyond their countries. Since the laws of
Such law is applicable all over a
 The law of nations of the 18th century different countries are not the same, the
country in question. It is also
was named as international law by problem arises as to which law should be
known as law of the land. It is in
Bentham in 1780. It consists of rules applied to the relations of different
effect in a country and applicable
which regulate relations between State nationals. For example, let us assume that
to its members. The law may be
inter se. Oppenheim has defined Ethiopian national and Chinese are married
statutory, i.e. enacted law,
international law as “the body of in Addis, and they live in Beijing. Let us
administrative or case law
customary and conventional rules further assume that a dispute arises
 Local Law
which are considered legally binding between them with regard to the
 Local law is the law of a particular
by civilised States in their intercourse administration of their household. Whose
locality and not the general law of
with each other.” law is to apply to solve their dispute: the
the whole country. They may be of
Ethiopian or Chinese law? Private
As one can observe from the above two kinds – local customary law
international law solves this problem.
discussion, international law is classified and local enacted law.
Private international law is known by
into public international law and private
 Local customary law has its roots  Substantive law is concerned with  The law enforced by the State is
in those immemorial customs, the administration of justice seeks called civil law. In Ethiopia, we
which prevail in a particular part to achieve while procedural law have a civil law codified in 1960,
of the State and therefore, have the deals with the means by which which is known as Civil Code. The
force of law. The local enacted those ends can be achieved. force of State is the sanction
law, on the other hand, has its behind this law. Civil law is
source in the local legislative EVIDENCE LAW essentially territorial in nature as it
authority of municipalities of other  Law of Evidence is the law that applies within the territory of the
corporate bodies empowered to consists of the rules and principles, State concerned. The term civil
govern their spheres by by-laws, which govern the relevancy, law is derived from the Roman
supplementary to general law. admissibility, weight and word jus civile. Austin and
 SUBSTANTIVE AND competency of evidence. It Holland prefer to call civil law as
PROCEDURAL LAW compress the legal rules regulating ‘positive law’ because it is
 Civil procedure is nothing but a those means by which any alleged enforced by the sovereign political
detached part of the civil law matter of fast, the truth of which is authority. However, Salmond
governing the manner of asserting submitted to investigation is justifies the term ‘civil law’ as the
and defending rights before courts. established or disproved law of the land. He argues that
 According to Salmond, substantive  CIVIL AND CRIMINAL LAW positive law is not necessarily
law is that which defines a right  Civil law is that branch of law confined to the law of the land.
while procedural law determined dealing with the definition and For example, international law is a
the remedies enforcement of all private or kind of jus positivism but it is not
 Procedural law is also called ‘law public rights, as opposed to a civil law.
in action’ as it governs the process criminal matters  On the other hand, Penal law
of litigation. unquestionably forms part of
public law. The state alone,  From this stage onwards, the to draft laws, which makes able
representing the nation, has the legislative monopoly of from the legal standpoint. In most
right to punish. Prosecutions and Parliaments is markedly countries, the government has the
condemnations are carried out in encroached upon. The right to right to introduce draft laws
its name. The application of introduce bills is usually shared whether they are members of
penalties is a part of the between the government and Parliament or not.
administration of a state. Today parliament.  Laws are implemented in the day
we have a criminal law enacted in  It is implicit in the concept of to day activities of the society.
2004 which is a revision of the democracy that the initiative in Those who directly involved in the
1957 Penal; Code of Ethiopia. The law making should rest with the administrative activities have
designation is changed to criminal elected officials. At the same time practical knowledge on the
law because penal law has it is understood in fact and in law problems of existing laws or the
negative connotation which carries that law making right is always activities that need rules to and can
penalty only. shared with the executive. The propose a draft [Ann, Robert and
 THE MAKING AND REPEAL function of government here is to Nalin; 2001:22].
OF LAWS supply a given policy. The  In countries where there is strict
 STEPS IN LAW MAKING government being better separation of power as in the
 The first stage of the legislative acquainted than anyone else with United States, members of the
process is the introduction of a the needs of the society and legislative assembles alone have
bill. A bill either proposes a because of the more and more the right to introduce bills. The
change in the existing law or complex nature of the problems president may also initiate drafting
makes new proposals; it is the first that have to be solved, it is of laws in USA.
draft of what will ultimately technically better equipped with  LAW MAKING PROCESS IN
become a statute. individual members of parliament ETHIOPIA
In the present day of Ethiopia, the sovereign,  Commercial Code; makes clear that legislative power vested to the
i.e. the legislature has the power to make laws  Criminal Code; Council of Ministers is legislative power
[Art. 55 of the FDRE Constitution]. Thus, the  Civil laws necessary to establish and delegated from the legislature (i.e. the House
House of Peoples’ Representatives has the sustain one economic community. of Peoples’ Representative).
power to enact laws in the form of
proclamation, for the Federal State, in the As per Article 62(8) of the Constitution, the According to Article 74(5) of the Constitution,

following sectors [Art. 55 of the FDRE Const]: House of Federation has the power to the Prime Minister has the power to supervise
determine civil matters on which the House of the implementation of regulations and
 Natural resources of the Federal State; Peoples’ Representatives makes laws. But directives adopted by the Council of Ministers.
 Inter-region and foreign trade law; what are the detailed points to be taken to The provision of Art. 74(5) of the same implies
 Federal transportation laws; determine a given matter as essential to that the Council of Ministers has the power to
 Electoral laws and other laws with establish one economic community? enact directives in addition to regulations.
regard to the enforcement of political
rights; We observe that legislative power is given to Ministries are also given the power to enact

 Nationality and other laws; the House of Peoples’ Representatives because directives to implement the powers given

 Standard and calendar; it is the highest authority of the Federal under proclamations. For example, Ministry of

 Patent and copyright laws. Government. In addition to the House of Labour and Social Affairs was given the power
Peoples’ Representatives, executive organs to issue directives concerning the registration
The House of People’s Representatives is also have also given the power to enact regulations of employers’ and workers’ union [Proc. No
empowered to enact laws in the form of codes and directives. The provision of Article 77(3) 4/95 Art. 20(3)].
on [Art. 55(3), (4) and (5), (6) of FDRE of the FDRE Constitution states that the
Constitution]. Council of Ministers shall enact regulations We have seen that the executive bodies have

pursuant to powers vested in it by the House of the power to enact regulations and directives.
 Labour Code; Peoples’ Representatives. Here, the provision These are non-sovereign law making bodies.
Bodies other than the legislature are non- House of Federation is empowered to interpret has the power to initiate and
sovereign law making bodies. the Constitution [Art. 62(1) of the same]. submit draft on a declaration of
Therefore, the House of Federation could war to the House of Peoples’
What are the characteristics of non-sovereign ensure that all laws are in line with the Representative, and the latter may
law making bodies? They are subordinate Constitution. declare state of war [Art. 55(9) of
legislatives because: the Constitution].
 The other essential characteristic  Further, each ministry has the
A) there are laws such bodies of non-legislatures is that they power to initiate policies and laws
must obey and cannot change; have given the power to make [Proc. No. 471/2005, Art. 10].
B) there is a distinction between laws by delegation of power According to Art. 4 of Proc. No
fundamental law and ordinary  Who does initiate laws? The 470/2005, the Government; the
laws; Constitution clearly provides that House of Federation; the Speaker;
C) there must be a body having the Council of Ministers “shall and the Federal Supreme Court;
authority to pronounce upon submit draft laws to the House of members of the House;
the validity or constitutionality Peoples’ Representatives on any Committees of the House; and
of laws passed by such law matter falling within its other governmental institutions
making body [Dicey; competence, including draft laws directly accountable to the House
1961:91]. on a declaration of war” [Art. have the power to initiate and
77(11) of the Constitution]. We submit draft bills to the House on
The regulations and the directives made by the
understand that the Council of matters within their jurisdictions.
non-legislative bodies should not contradict
Ministers has the power to initiate However, it is only the
with the Constitution [Art. 9(1) of the FDRE
draft laws on matters that fall Government empowered to initiate
Constitution]. This principle applies to all laws
under the jurisdiction of the draft financial law [Art 6(4) of
irrespective of who made it. In addition, the
federal Government. In addition, it Proc. No. 470/2005].
 Any draft must be made in writing of FDRE Constitution and Proc. that it cannot be repealed; it is
and be submitted to the Speaker to No. 470/2005, Art. 11(b)]. The perpetual in the sense that it is not
its presentation to the House. President needs to sign the law abrogated by elapse of time or by
 Then the House shall pass the bill within fifteen days, the law will non-user. A statue is temporary
(draft law) after a through have effect with out his signature when its duration is only for a
discussion on the final proposal if the president fails to sing within specified time, and such a statute
(Art. 10(b)]. Then, the Speaker the specified time [Art 57 of expires on the expiry of the
shall send the draft to the president FDRE Constitution and Proc. No. specified time unless it is repealed
for signature (Art 11(a)]. The 470/2005, Art. 11(b)]. earlier. Simply because the
President is required to sign the  REPEAL OF LAWS purpose of a statute, as mentioned
bill within 15 days other wise the  Repeal of law is an abrogation of in its preamble, is temporary, the
bill will be effective after 15 days an existing law by legislative act. statute cannot be regarded as
if the President fails to sign it In other words, repeal of law temporary when no fixed period is
[Proc. No 470/2005; Art. 11(b)]. means making the law no longer specified for its duration.
What is more, the ratified law have a legal effect Cessation of transitional legislative
must be numbered by the Speaker  Is there a difference Between power has no effect on the
and thereby published in the Repeal and Expiry of Laws? continuance of a perpetual Act
Federal Negarit Gazeta [Art.  A law (statute) is either perpetual enacted during the continuance of
11(c)]. or temporary. It is perpetual when that power. The duration of a
 Promulgation of the law upon the no time is fixed for its duration, temporary statue may be extended
ratification of the draft, the and such a statute remains in force by a fresh statute. But it appears
Speaker of the House of until its repeal, which may be that after a temporary statute
Representatives sends the law to express or implied. A perpetual expires, it cannot be made
the President for signature [Art 57 statute is not perpetual in the sense effective by merely amending the
same. The only apt manner of the draft could be indorsed and it relation perpetual, the covenant should
reviving the expired statute is by will become law. The law will also be reduced to a written document.
re-enacting a statute in similar be published.  Furthermore, in order to avoid
terms or by enacting a statute  repeal of law means making the misunderstanding arising there from,
expressly saying that the expired law no longer have a legal effect. the terms of the agreement should be
Act is herewith revived. We have observed that a law could simple and understandable.
 Who May repeal Laws? A power be perpetual until it is repealed.  The federal constitution, being the
to make a law with respect to the The principle is that a body that source of powers of both the central
topics committed to Parliament or has a power to enact a law has also and the regional governments, is
State legislatures carry with it a a power to repeal the same. believed to be the supreme law. In the
power to repeal laws on those  repeal of laws may be express or original sense of the term as used by
topics. Subject to any implied. A repeal of laws is said to Bryce, it is “rigid”. So as to say that a
constitutional restriction, the be express where the law is constitution is supreme, we need to see
general rule is that “the power of a replaced by a law by specific its declaration to the effect that the
legislative body to repeal a law is declaration to that effect. On the power of the legislator to alter the
co-extensive with its power to contrary, an implied repeal of law constitution is either limited or non
enact such a law” and a legislature is repeal by irreconcilable conflict existent. In this respect, the federal
which has no power to enact a law between an old law and a recent constitution usually embodies a
on a particular subject matter has one. provision, which prohibits both the
also no power to repeal the same.  HIERARCHY OF LAWS legislators of the whole country and of
 With regard to the steps in law  A federal constitution is a covenant of the parts to alter the constitution
making, we have seen that a draft the union by which federal relationship unilaterally. The supremacy of the
should be prepared first. Then, is established. So as to make this constitution and its rigidity are the
discussion will be held. After that, essential characteristics of the federal
constitution and they are also the Peoples’ Representatives), they have the same body which enacts the
manifestations of the idea of equal status on the ladder of hierarchy proclamations that they can stand
federalism itself.  However, in order to say that equal in hierarchy with the latter. In
 This organ is also empowered by the international treaties have such such a case, if conflict arises between
Constitution to enact proclamations position on the ladder of hierarchy, the two (treaty and proclamation) the
(federal statute) [Art 55 of the same]. they have to be concluded in one which is subsequent in time
Thus, both treaties and proclamations accordance with and the spirit of the prevail over the other which is prior in
come in to force by the act of this Constitution of FDRE. In this regard, time.
organ. Hence, now a question may the present Constitution in its Art 86  We have seen that primary legislation
arise with regard to the hierarchy asserts that international agreements normally refers to the enactments
between the treaties and concluded in the promotion of the made by the supreme legislative organ
proclamations. To put it in question, external relation should respect and of the country to which it belongs.
which one is superior in hierarchy accord with the sovereignty of Therefore, in our case, federal statutes
between the treaties and Ethiopia and the interest of its people. (proclamations) enacted by the House
proclamations? Which one is superior On this point, Dr. Fasil[1997] wrote: of Peoples’ Representatives, which is
in hierarchy when conflict arises “taking a lesson from history, the the supreme legislative organ of the
between the two? When laws are Ethiopian Constitution insists on federal government [Art 50 (3) of the
passed by the same body, the rule is making it a matter of record that the Constitution] fall under this group of
that such laws are on equal stand on promotion of foreign relation must legislation (primary legislation).
the ladder of hierarchy. Therefore, so accord with the interest of peoples of  In addition to this, there are certain
long as international treaties and Ethiopia”. Therefore, it is only so long circumstances in which the primary
proclamations are ratified and enacted as they conform to the declaration of legislation may include laws that are
by the same body (the House of Article 86 of the Constitution that issued by the executive (subordinate)
international treaties being ratified by authorities. However, in such a case,
for those laws to be categorized under Peoples’ Representatives is the  The other group of law (derivative
the above group of legislation, the supreme authority of the federal legislation) that are issued at the
authorities enacting them should be government. As a result, the federal federal level include regulations and
empowered to do so by the supreme statutes (proclamations) enacted by it directives. The Council of Minister
law (constitution). In connection with are superior to all other laws made by and each ministry issue these
this, the FDRE Constitution confers the federal authorities. Accordingly, legislation. In this case, the Council of
the Council of Ministers the power to the Council of Ministers, being a Ministers derives its power to make
proclaim a decree of emergency [Art. federal authority, is subordinate to the the regulations from the supreme
93 of the Constitution]. Hence, such House of Peoples’ Representatives and legislator i.e. the House of Peoples’
decrees passed by this organ may also thus the laws made by it are inferior to Representatives through the primary
fall under the said category of laws. the proclamations. legislation. Consequently, the position
 Nevertheless, the fact that both the  However, the status of the decrees of of the regulations and directives on the
proclamations and the decrees of emergency proclaimed by the Council ladder of hierarchy is below the
emergency belong to the same group of Ministers is exceptions to what is proclamations and decrees. However,
of law does not mean that they have said above. This is because, the in so far as the regulations are passed
equal authority in the hierarchy of Constitution empowers the Council of by the Council of Ministers, they are
laws. This is because, as a rule, in Ministers to suspend even democratic higher in hierarchy than the directives
order to say that legislation made by and political right provided there under passed by each ministry.
different authorities are on equal through the decrees issued by it in time  : INTERPRETATION OF LAWS
footing in hierarchy; their makers of emergency. Therefore, for stronger  All laws must be sufficiently clear and
should be on the same position in the reason, it is possible to say that the reasonably formulated to address their
power order. However, this is not true decrees of emergency proclaimed by purposes. Laws should be clear not
in the case under consideration. As the Council of Ministers can repeal the only to the lawyer but also to the
said shortly before, the House of proclamations. layperson. However, this may not be
achieved all the time. There may be actual words used in it, which  Interpretation may be
certain situations that give raise the are to be understood in their doctrinal, judicial or
need to give meaning to a law. ordinary and natural meaning. legislative.
 Interpretation is a process of giving In other words, where there is
meaning to the phraseology of the law. no ambiguity in the language A) Doctrinal Interpretation

It is reducing the law into reality. employed by the statute any

Doctrinal interpretation is that “which is
“Interpretation is the art or process of other interpretation except
made in books, in reviews, in the classroom”.
discovering and expounding the grammatical interpretation is
It is performed mostly by the legal scholars
intended signification of the language permissible. This is known as
when they lecture, prepare articles, and books.
used, that is, the meaning which the litera scripta
Apart from that, the doctrinal interpretation
authors of the law designed to convey
Logical interpretation, on the other hand, is propounded by scholars has “no other use than
to others”
that which departs from the letter of the law to influence court decisions”. This is best
 Interpretation of a law comprises of
and seeks elsewhere or some other or more achieved through commenting on laws and
search for the soul of the law. The
satisfactory evidence of the intention of the judicial opinions, grouping points of law
word interpretation can have a narrow
legislature. This is known as “sententia legis”. involved in analogous cases, and stressing
meaning, i.e. finding the literal
Interpretation may also be classified as inconsistencies, if any, that may crop up in the
meaning of the words used and a wide
doctrinal, judicial, or legislative interpretation judges decision. Therefore, scholars interprate
meaning, i.e. ascertaining the intention
depending on who interprets the law laws and would help judges to solve practical
of the law maker
cases. Ethiopian cases, being mostly
 We have grammatical and logical
Who interprets the law: the scholars, the unreported, cannot be, a system so discussed.
interpretations.
court (judges), or the legislature? In In other jurisdictions, the influence of
 . Grammatical interpretation
answering this question, scholarly commentators is strong when their
implies that the meaning of the
opinions are unanimous (communis opinion
law is to be sought in the
doctorum) and thus constitutes “doctrinal C) Legislative Interpretation balanced. That means the nature of political
custom”. In Ethiopia, there is no custom of instrument and legal document of the
such scholarly commentators and it is Legislative interpretation is that made by the constitution are to be taken into account to
imperative to develop the culture. In so doing lawmaker. interpret the Constitution.
the Supreme Court case reports would help us.  RULES OF
a judge may not refuse to pass judgment on the
INTERPRETATION IN
B) Judicial Interpretation pretext that the law is silent, obscure or
GENERAL
insufficient. S/he would be guilty of a denial of
A) The golden Rule of Interpretation
When a case is lodged before the court, justice. Under present Ethiopian law, such
 The main purpose of judicial
lawyers must argue why the law covers or does refusal to pass judgment might be charged as a
interpretation is to ascertain
not cover the behaviour in question. Then, the breach of official duty under Article 420
the intention of the legislature.
judges must “find the meaning” of the law to Criminal Code, unless the law provides
In ordinary cases the Judges
decide whether it regulates the particular otherwise.
must resort to grammatical
conduct at issue. This search for “meaning” is
The FDRE Constitution empowers the House interpretation for ascertaining
known as judicial interpretation“Judicial
of Federation to interpret the constitution [Art. the true intention of the
interpretation is that which emanates from a
62(1) and 83(1)]. legislature. The golden rule of
court when, in order to decide a case, it applies
interpretation is that “if the
a law whose meaning is discussed before it.”
The House of Federation is required to be words of the statute are in
Administrative organs may interpret law to
helped by the Council of Constitutional themselves precise and
adjudicate cases. It is important to note that if
Inquiry [Art.82 of FDRE Cons]. The members unambiguous, then no more
the meaning is not disputed, no need of
of the Constitutional inquiry are by large can be necessary than to
interpretation but a simple application of the
lawyers and this is made to assist the House of expound words in their natural
law.
Federation by professionals. In addition, this and ordinary sense. The words
would enable the constitutional interpretation themselves alone do, in such
cases, best declare the  According to ejusdem generis are clearly wide in their
intention of the law-giver” rule, a sweeping clause in a meaning, they ought not to be
 Lord Wensleydale called statute which says “all other restricted or qualified on the
grammatical interpretation as articles whatsoever” may be ground of their association
the “golden rule” for the interpreted to mean only with other words..
interpretation of statutes. He articles of the same genus or  Inconsistency or
observed that in construing species as those expressly contradiction in law
statutes and all other written dealt with by the statue.
instruments “the grammatical  Salmond gives an interesting Two provisions of the same or different

and ordinary sense of the example of ejusdem generis laws may some times be inconsistent or

words is to be adhered to which serves to restrict the contradictory. In such a situation, which

unless that would lead to some meaning of general words to of the provisions should be applicable

absurdity or some repugnancy things or matters of the same becomes the issue that has to be decided

or inconsistency but no kind as the preceding by using rules of interpretation. There

further.” particular words. If a man tells are three ways to decide this issue.

 The golden rule of his wife to go out and buy

Firstly, the hierarchical position of the two
interpretation guides us to butter, milk, eggs and anything
laws must be seen. If they exist in different
interpret words as they are else she needs, he will not
hieratical position like one in constitution and
employed in the statute. In normally be understood to
the other in primary or subordinate legislation,
short, grammatical include in the term, ‘anything
the rule applicable is the higher law prevails
interpretation is known as else she needs,’ a new hat or
over the lower law. In other words, it must be
golden rule of interpretation. an item of furniture.
the higher law that should be applicable and
 B) The Ejusdem Generis  It must, however, be
Rule remembered that where words
the lower will have no effect for it violates the same hierarchal position even in the same law Federation being politicians be able to interpret
higher law. and also have the same effective date. The the Constitution as a political document. As to
remedy for such a problem is referring to the its legal aspect, the House is assisted by the
Secondly, the two provisions may exist in the nature of the laws whether one is general and Constitutional Inquiry whose members are
same hierarchical position cannot serve to the other is special rule in which it is usually mainly lawyers. However, the interpretation
decide the issue, because both are in the same the case. If one is in the general rules and the seems to be time consuming.
hierarchical position. In such a situation their other is in the special rules lex special derogate
effective date i.e. the date on which they generalis (i.e. special Rules prevail over Furthermore, we have discussed that the
entered in to force must be considered as a general rules). Thus, the special rules must be provisos on human rights of the Constitution
reference. Because, the rule is that the later law applicable because they are special to the case shall be interpreted in light of the international
prevails over the former law (exposterior at hand where as the general rules are instruments of human rights.
derogate priori). In other words, the new or applicable where there is no special rule
recent law must be applicable and the old law  JURIDICAL ACTS
governing the issue. Even though it may not
will have no effect for it is assumed that the  Juristic act- is defined as “as act that is
arise in practice it is also possible to extend the
legislator who made a mew law that intended to create, transfer, or
issue to what would be done if both provisions
contradicts with an old law of the same extinguish a right and that is effective
in the same law are general or both are special.
hierarchical position intended to repeal the old in law for that purpose.”
In this case it is possible to remedy the
law by implication.  It is also explained as “the exercise of
problem by applying the less general if both
legal power”
are general and the more special if both are
Finally, both the contradicting provisions may  The essential element in every
special rules.
sometimes exist in the same law like for juridical act is the declaration of will.
instance in the same code which implies that Further, we have seen that the House of Sometimes the juridical act consists of
neither hierarchy nor effective date can be used Federation has empowered to interpret the nothing else but the declaration of will
to decide the issue because they are in the Constitution. The members of the House of as in the case of a testament.
Sometimes, however, the declaration rights. In order for a duty to create a morality of a given community
of will must be accompanied by right, it must be a duty to act or naturally influence the law in its
another act of one or several of the forbear. determination of the conduct, which it
parties. will protect, and of the actions, which
but s/he has no right to our love [John it will prohibit. ‘Rights spring from
7.2) RIGHTS AND DUTIES Chipman Gray, in Black’s; 2004: 1347]. right. Principles of liability, in the last
analysis, must be derived from the
 The term “right” is defined as  The term “duty” is defined as follows:
moral sense of the community.
“something that is due to a person by “a legal obligation that is owed or due
 Juridical acts are distinguished from
just claim, legal guarantee, or moral to another and that needs to be
material acts in that the latter consist in
principle (the right of liberty).” It satisfied; an obligation for which
some action of physical relationship,
includes a “power, privilege, or somebody else has a corresponding
such as claims for compensation for a
immunity secured to a person by law right”
literary work. Juridical acts, as we
(the right to dispose of one’s estate)”  A legal right – what is a legal right?
have discussed, are categorized into
Further the term is defined as a The test for a legal right is –is the right
unilateral and bilateral, those
“legally enforceable claim that another recognized and protected by the legal
addressed to a particular person and to
will do or will not do a given act; a system itself? Thus, a person may have
anyone, intervivos and mortis causa,
recognized and protected interest the a legal right to do an act, which is
onerous and gratuitous, obligatory and
violation of which is a wrong (a breach unethical and opposed to the standards
real, promissory and dispositive,
of duty that infringes one’s right)” of positive morality. However, this
casual and abstract.
 Right is a correlative to duty; where does not mean that the law is
 We have learnt that some essential
there is no duty there can be no right. unreceptive to the general conception
elements must be fulfilled for a valid
But the converse is not necessarily of right, which exists in a community,
juridical actsto exist. First and for
true. There may be duties without for the ethical views and positive
most, we have seen that legal capacity
is important: persons must be capable required to declare his/her its will person will produce effects to the
in the eyes of the law to perform without fraud, violence or threats. The person for whose favour (name) they
legally binding juridical acts. In fifth pre-requisite for valid juridical are performed.
addition, a person should have a acts, as we discussed, is that the  ETHIOPIAN LEGAL SYSTEM
specific legal capacity that means juridical acts must comply with the  LEGAL
s/he/it should have sane mind; attain formality, particularly where the law PLURALISM
the age of majority; and so on. provides the form. Further more, we  legal pluralism is “a concomitant of
Secondly, the actor must declare have learnt that, the contents of social pluralism; the legal organization
his/her/its will to create the legal juridical acts must be lawful. Thus, of society is congruent with its social
consequences to have valid juridical according to Article 1678 of the organization”. As a result, “Law is
acts. The declaration, as we have seen, Ethiopian Civil Code, a contract (and a present in every ‘semi-autonomous
may be either express or implied. The juridical act) must have lawful purpose social field, and since every society
third pre-requisite for validity of a and need not contravene the morality contains many such fields, legal
juridical act is that there must be of the society. pluralism is a feature of social
concordance between what is  We have also discussed the effects of organization” [Griffiths; 1986: 38]. A
manifested (or declared) and that is juridical acts. The basic principle is situation of legal pluralism is therefore
intended. that juridical acts create rights and “one in which law and legal intuitions
 Further, in order to have a valid obligations only as between persons are not all subsumable within one
juridical act, the declaration of who perform them. Thus, the rights ‘system’ but have their sources in the
intention should be serious. In and obligations of third parties may self-regulatory activities of all the
accordance with the fourth pre- not be affected by juridical acts. This multifarious social fields present,
requisite for a valid juridical act, the clearly shows the relative effect of activities which may support,
will should be declared free from juridical acts. Juridical acts performed complement, ignore or frustrate one
vices. Accordingly, the person is by some one else representing another another”
 On this argument, African societies are powers at the same time. This is the recognized the validity and applicability of non
amongst the most pluralist in the sense of legal pluralism in Ethiopia state laws such as religious and customary
world, comprising as they do a laws in some fields of social activity (Art.
diversity of tribal, ethnic, cultural and In short, the existence and practice of law in 34(5))
religious groups, different traditions, Ethiopia other than formally recognized ones

and people divided along urban and may be categorized under informal legal  The existence and practice of law in
rural lives. It would therefore appear to pluralism. Ethiopia other than formally
follow that African states would  There are traditional dispute settlement recognized ones may be categorized
manifest a healthy legal pluralism mechanisms in Ethiopia. In traditional under informal legal pluralism.
reflecting this diversity-but reality dispute settlement mechanism,  LEGAL TRANSPLANTATION
demonstrates that this is not customary laws of the respected ethnic FROM FOREIGN SOURCES
necessarily a logical conclusion. group apply  In most places at most times
Indeed, it may be possible to argue that borrowing is the most fruitful source
Legal pluralism in Ethiopia, currently,
there is a cleavage between social of legal change. The borrowing may
recognizes and legitimizes the personal laws of
pluralism and rules which it generates be from within the system, by analogy-
Ethiopia’s religious and customary groups
on the one hand, and constitutional from negligence in torts to negligence
legal pluralism is the manifestation of
pluralism on the other in contract, for instance-or from
federalism in Ethiopia that accommodates the
 Ethiopia being a country of different another legal system. The act of
rights of various multicultural society
nations and nationalities, the borrowing is usually simple. To build
Constitution grants the legislative, Legal pluralism may be classified formal and up a theory of borrowing, on the other
executive and the judiciary power to non formal. In case of formal legal pluralism, hand, seems to be an extremely
them. Therefore, both the federal the law clearly recognizes the applicability complex matter. Receptions come in
government and the regions have those various laws. The Ethiopian Constitution all shapes and sizes: from taking over
single rules to (theoretically) almost a be very open. Ulricus Huber’s own predicted. Chance plays too great a
whole system. theory of conflict of laws which he role.
 What is the basis for a reception of founds on three axioms all ostensibly  Third, when foreign law is given high
law? based on Roman law. authority, then when new situations
 It goes with out saying that practical  The enormous need for legal authority arise, jurists may not find it easy to
utility is the basis for much of a for legal decisions and reasoning is develop new law on the basis of
reception of law. The paramount unveiled. It is this need for legal irrelevant or even non-existent
reason for reception of law is authority that often lends strength to sources.
economical for the borrowing country transplants (or apparent transplants).  Fourth, they confirm the central role of
because it saves time that could be authority in law making by
spent to draft a new, original law. There are four aspects of legal subordinate lawmakers. Judges cite
Thus, it avoids a labour some law transplantation with all apparent seriousness what are
making particularly a new law. regarded as the appropriate authorities,
 First, they highlight the enormous
 A problem related with reception is who are unhelpful or irrelevant, and
influence of legal education or legal
misunderstanding. The principle of a they may seem to follow them when
attitudes. Southern African students
law may be misunderstood in the constructing their own route.
educated in law at Edinburgh imported
process of reception. For example,
to Botswana, Lesotho and Swaziland CONFLICT BETWEEN FEDERAL LAWS
Huber’s theory of conflict of law was
some Scots law. Thus, transplantation AND REGIONAL LAWS
accepted in common law jurisdictions
influences the legal education.
but not in the civil law. His third
 Second, they show that though patterns The laws that are enacted by the federal
axiom was misunderstood.
of development can be discerned, the authorities and the state authorities are similar
 THE NEED FOR AUTHORITY
future development cannot be in form. The hierarchy of laws manifested at
 Borrowing is often creative. However,
each level (federal and state) is also the same.
it needs authority. This creativity may
But now the issue is, what is the hierarchical on the same matters and thus conflict arises 1. The above article can be interpreted to
relationship between the federal and state between the two. mean that the legislators of the two
laws? competent governments can
In order to say that there exists conflict of laws independently make laws which enable
In a federal system, the power of the state is in federal systems, such laws should be made the two governments to collect their
divided between the two governments, which by the federal and the state legislators having revenue from the taxes mentioned
are not subordinated one to another but the same power (concurrent). In addition, there hereunder. This can be understood
coordinate, and sovereign with in their own should be repugnancy between the command from the heading of the article. It says
sphere of jurisdiction. Therefore, since each of or power contained in the federal statutes and “the concurrent power”. Therefore,
them is sovereign with in the sphere of the command or power contained in the state since we have said before, that the
jurisdiction allotted to it, we cannot say that statutes. Thus, in such a case, the state concurrent field is the area in which
the idea of superiority exists between the enactments shall, to the extent of repugnancy, both the general and regional
federal and state laws that are enacted on be void, and the federal statute shall prevail. governments have common
matters under the federal and the state lists. jurisdiction, they enact laws with
The doctrine of paramount between the federal Nevertheless, does Art. 98 of the FDRE
respect to the same subjects. In such a
and state laws is understood in relation to the Constitution clearly indicate whether or not
case, if conflict arises between the
concurrent power. In connection with this, that the legislators of the two governments
federal and state laws, the rule is that
Where says “…if there is a concurrent enact laws independently in the exercise of
the federal laws should prevail over
jurisdiction, there must also exist some their concurrent power and thus conflict arises
state laws. However, this rule is not
provisions to determine which authority, in between the two laws? Art 98 of the
embodied in the FDRE Constitution.
case of conflict, to prevail. Because it is in this Constitution is not clear on this point, and
In other words, the Constitution of
field that both of the legislators of the hence, this provision can be interpreted in two
FDRE does not stipulate a provision,
federation and of the member states enact laws ways:
which shows the superior and inferior
relation between the federal and state
laws. However, it would have been It is difficult to say the Article 98 of the behave according to those standards
better had the Constitution Constitution embodies a true concurrent that are accepted as guidelines in
incorporated a provision to solve the jurisdiction. Because as we have seen above, performing official duties.
problem of conflict between federal the concurrent jurisdiction is one under which
and regional laws. both the federal and the state government Unofficial norms, on the other hand, are those

2. Art 98 of the Constitution may also be exercise the power independent of each other. standards of behaviour accepted by the society.

understood to mean that the two However, this is not true under the There fore, the right or wrongness of a given

governments by agreement, concluded Constitution of FDRE. Moreover, since the behaviour is tested against the “basic norms”

as between them, may levy and collect Constitution does not stipulate a provision that are accepted by the society. In general, a

together the taxes that are listed in the which deals with the hierarchy between the norm is a model or standard accepted by

same article. The term “jointly” as federal and state laws. In case conflict arises society against which society judges someone

employed in the article under between the two, such conflict is resolved only or something. For example, the society has a

discussion supports this very by the amendment of the provision dealing standard to judge a given behaviour as right or

interpretation. If the provision which with this issue. However, in so far as the wrong

deals with the concurrent power is amendment of the constitution requires a

Conflict could arise between official norm and
interpreted in this way, it is, their special procedure, resolving such conflict does
unofficial norms. In such a case, the official
agreement which becomes the not become easy.
norms should prevail over, and the officer
governing law in case dispute arises
OFFICIAL NORMS AND UN OFFICIAL should be judged by the standards of his/her
between the two government and thus
NORMS office.
there is no need for the two legislators
of the federation and of the member INSTITUTIONAL FRAMEWORK IN
 Official norms are standards that
states to enact laws independently for ETHIOPIA
emanate from the law of the
the purpose indicated in art 98 of this
government. An official is expected to
Constitution. THE FEDERAL LEGISLATURE
The House of People’s Representatives copyrights; executive;
exercises federal legislative powers  the possession and bearing of  approval of the appointments of
pertaining matters that follow: arms; federal judges, members of the
 enactment of the penal, labour and council, ministers, commissioners,
 utilization of land, natural commercial codes; etc.
resources, of rivers and lakes  enactment of such civil laws as are  enactment of laws to determine the
crossing the boundaries of the designated by the House of powers and functions of the
national territorial jurisdiction or Federation necessary to establish Human Right Commission and the
linking two or more states; and sustain a single economic Ombudsman;
 inter-state commerce and foreign community;
trade;  determine the organization of THE HOUSE OF FEDERATION
 air, rail, water and sea transport, national defence, public security,
major roads linking two or more  The House of Federation has the
and a national police force;
states, postal and principal power of interpreting the
 declaration of state of emergency
telecommunication services; Constitution authoritatively or
and a state of war;
 enforcement of the political rights better still, it is the ultimate
 enactment of state of emergency
established by the Constitution and interpreter of the Constitution.
and a state of war;
electoral laws and procedures; Thus, it can adjudge with final
 administration of the National
 nationality, immigration, passport, authority any law to be contrary to
Bank and foreign exchange;
exist from and entry to the the Constitution hence with not
 levying of taxes and duties on
country, the rights of refugees and legal effect or vice versa.
revenue sources reserved to the
of asylum; federal government; Its other powers and functions include the
 uniform standards of measurement  ratification of international following:
and calendar; patents and agreements concluded by the
 It organizes the Council of the House of Peoples’ The executive organ is the other organ of a
Constitutional Inquiry, a kind of a Representatives. state. However, our discussion is limited only
technical body that gives its  Orders federal intervention in the to the justice organ.
recommendations to the House of event of any state, in violation of
Federation on issues of the constitution endangers the A) FEDERAL PROSECUTION ORGANS

constitutional interpretation as constitutional order.

There are various prosecution organs at the
they arise from any interested
 FEDERAL JUDICIAL Federal level. Let us discuss them below.
party. Members of the Council
include the President and Vice- ORGANS
I) The Ministry of Justice
President of the Federal Supreme
The Constitution enshrines a broad range of
Court, six other legal experts, three The Ministry of Justice is principally and
principles of cardinal importance regarding the
members of the House of Peoples’ pretty exclusively responsible for the
judiciary. One of these is the establishment of
Representatives. prosecution of federal crimes throughout the
the independence of the judiciary. By so doing
 Decides on matters relating to the land. Its specific powers and functions of
it puts on a firmer pedestal both institutional
rights of nations, nationalities and prosecution relate to offences subject to the
and personal autonomy.
peoples to self-determination. criminal first instance and appellate

The Constitution recognizes religious and jurisdiction of federal courts provided by law.
 Determines the division of The Ministry also institutes, causes to be
customary courts and envisages their
revenues derived from joint instituted or intervenes in civil proceedings
establishment by law, while those already
federal and state tax sources and affecting the public and federal government.
functioning continue to exist.
the subsidies that the federal
government may provide to states. THE EXECUTIVE ORGAN II) The Federal Ethics and Anti-corruption
 Single out those civil matters, Commission
which seek enactment of laws by
The commission carries out exposition, constituted by law to conduct investigation and customs crimes [Proc No 587/2008, Art. 16].
investigation and prosecution of offences of prosecution of crimes of genocide and crimes The Authority may delegate its power of
corruption and impropriety falling under the against humanity (which are punishable crimes investigation and prosecution to regions [Proc
jurisdiction of the federal government [Proc under the penal code of the country) by No 587/2008, Art. 6(13)]. This would enable
No. 433/2005. Art 6(3)]. Accordingly the members and officials of the previous regime. the Authority to carry on its power properly.
Commission has given the power to investigate It carries the appellation special because it
or cause the investigation of any complaints of would only function for the duration of the STATE INSTITUTIONS

alleged or suspected serious breaches of the proceedings. Once the proceedings are over
 STATE Council
codes of ethics falling under its (which they apparently are nearing
jurisdiction[Proc. No. 433/2005, Art. 7(3)] completion) it shall cease to exist as The State Councils exercise exclusive
with regard to corruption crimes, the institution. legislative power on matters falling under state
Commission has the power to investigate and jurisdiction provided by the Federal
prosecute or cause the investigation and the IV) The Ethiopian Revenues and Customs
Constitution and over matters not expressly
prosecution of any alleged or suspected Prosecution
given to the Federal and/or State Councils by
corruption crimes as specified under the the Constitution.
The Ethiopian revenues and customs
Criminal Code falling under its
prosecution, just another of the few special
jurisdiction[Proc. No. 433/2005, Art 7(4)]  STATE COURTS
prosecution institutions, exercises the power of
Similar institutions are being established in the  State judicial power is vested in state
investigation and prosecution of crimes in
regional states. courts. The structure of the state courts
respect of violation of federal customs and tax
comprises state supreme, high and first
III) The Special Prosecution Office laws [Proc No 587/2008, Art 6(10)]. The
instance courts. These courts exercise
Authority shall have its own investigators and
judicial authority with in state
It appears obvious from the way it is labelled prosecutors in order to carry out the power on
jurisdiction and the jurisdiction of
that it is a prosecution institution. It is investigation and prosecution of tax and
federal courts as delegated by the on each and every person by the courts.  Alternative dispute mechanism
federal Constitution. The government is required to work within offers more informal procedure
the limits without violating the rights of than that of courts, it is expeditious,
ADMINISTRATION OF JUSTICE IN
individuals and people’s. On the other and less expensive.
ETHIOPIA
hand, individuals are required to live up to  The Ethiopian people are very

Courts play a great role in the their rights. The administration of justice much accustomed to settle their

administration of justice. The FDRE made by courts is to adjudicate on disputes disputes rather than going to the

Constitution makes clear the role of courts. so as to ensure a balance between the courts of law. Customary laws that

The preamble of the Constitution power of state and rights of individuals. are easily accessible to the people

articulates that the Nations, Nationalities are applicable. Thus, we have seen
In general, the court is empowered to
and Peoples of Ethiopia are strongly that settling disputes out of court is
check that the rights of individual are not
committed to build a political community a co-existent mechanism in
abridged or violated by the government.
founded on the rule of law. It also Ethiopia.

emphasizes on the respect of individual  Contradiction between formal and

Last unit about ADR
and people’s fundamental freedoms and tradition mechanisms of dispute

rights [Preamble, 1st and 2nd paragraphs].  Alternative dispute resolution is a settlement is very high in Ethiopia.

This shows the close relationship between mechanism to settle disputes out of In such a case, we have observed

rule of law and the respect of rights and the court of law. Arbitration, that the formal mechanisms should

freedoms in Ethiopia. mediation, conciliation are types of prevail.

alternative dispute resolution
The principle of rule of law and respect of end
mechanisms.
rights is ensured by the application of laws