LEGAL HISTORY AND

CUSTOMARY LAW
Ethiopian Civil Service University
School of Law
2017 E.C. Weekend Program
CH-1: Understanding Legal History
and Legal Systems
Contents:-
• Defining Legal History
• Approaches to Legal History
• Relevance of Legal History
• Defining Legal Systems
• Classification of Legal Systems
• Legal Convergence and Divergence
• Approaches to Divergence and Convergence
• Legal tradition, transplantation, penetration and
extension
• Challenges in the Study of Legal History
Definition of legal history:
• Legal history is a systematic study of past legal
systems.
Thus it 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.
Approaches to Legal History
• There are four major approaches in studying legal history and
traditions.
1. Unitary or Isolationist approach
The first 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 aspects for the sole purpose of
understanding those past systems.
This approach is also called historical conception.
2. Holistic or the Sociological approach
• It refers to the inclusion of economic, religious, social & political
institutions of past societies.
• This approach, in addition to the elements that must be studied
according to the first approach, should include both internal and
external factors to a past legal system as a legal system does not
stand in isolation from external factors.
• Thus, the study of legal history and legal traditions will not be
complete unless it includes economic, social, religious and political
elements.
Cont’d
3. Technical approach
This 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 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
societies not simply for the sake of knowledge of these
societies (as in the historical conception);
• It is not simply to reach a sociological explanation of their laws
and their relations to other aspects of the social organization (as
in the sociological conception);
• It is not also simply to discover general rules of the evolution
and development of societies; rather it is to gather legal
problems and to understand the reasons why these solutions
were chosen.
Cont’d
4. Mixed approach
• The last view called the 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.
Reasons for studying legal history:
 Firstly, 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.
 Any other reason?
The concept of legal system:
A legal system is defined as 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.
• Legal structure:- refers all those institutions responsible
for creating, modifying, interpreting, improving and
implementing laws.
It incorporates law schools, bar associations, the police,
courts, the legislature, the executive and prison
administration.
 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.
What are the major legal systems?
 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/systems 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, ideology(socialist and religious), legal technique and the
system of conception of justice.
In general the basis of classification of a legal system/tradition can
be,:
• Ideology
• Historical development
• Distinctive legal mode of thinking
• Distinctive legal institutions
• Source of law
Reasons for classification:

It has technical and authoritative importance.

A. Technical importance:
 Since the study of the history of laws of societies is
systematic, and one best way of studying legal history
and traditions is to classify and sub-classify the major
legal traditions of the past and the present.
Such division and sub-division make the study of the
subject convenient and gives your thought some degree of
organization.
B. Authority:
The issue of authority in the sense that those legal
systems that are grouped together can borrow legal
materials from one another where there are gaps.
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.
• It 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.
Definition
1. Legal divergence shows non-uniformity in legal systems.
It 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.
 It should be seen as a process because it may have a lot of aspects and
steps.
 It should be seen as a degree because at the same time there is a tendency
of legal convergence.
2. Legal convergence deals with the factors that make two or more legal
systems similar.
Like legal divergence, it 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.
It 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
 It brings about simplicity and certainty in the
application of laws; thus enhances predictability of the
application of laws among several legal systems.
 It 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.
 It also pushes human beings away from the excesses of
legal nationalism (a doctrine that unduly focuses on
differences of laws across nations).
It 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.
• 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.
Cont’d
Yet, the two systems have similarities; 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.
Cont’d
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.
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.
Approaches to Divergence and Convergence
The jus commune, legal evolution, the natural law
theory and the Marxist theory.
A) The jus commune theory: it 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.
Cont’d
B)Legal evolution theory: it 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.
Cont’d
C)Natural law theory: it 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.
Cont’d
D)The Marxist theory: The Marxist thesis is the final
philosophy of legal divergence.
It 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/contradictory.
Legal tradition, transplantation,
penetration and extension
1. Legal Tradition:
Refers to a set of deeply rooted and historically
conditioned (for longer period) 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.
• The attitude directed towards a legal system can
be hostile, neutral or favorable.
Legal Transplantation
It is also named as; legal borrowing, legal importation, legal
reception and legal taking.
• It 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.
 A recipient country may borrow laws since the laws are:-
 Accessible in terms of language,
 Found out to be meritorious in terms of organizations,
 The laws were transplanted to other systems and found
out to be fruitful or
 The recipient country decided to modernize its legal
system.
Cont’d
• A country may adopt foreign laws as a result of
migration or commercial intercourse.
• A country may adopt the laws of another country
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.
Historical Account:
The Romans gave principles of private law to European
countries such as France and Germany.
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.
Cont’d
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.
The Islamic legal system, as an idea, originated
in the Middle East in the 7th 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 factors:
migration and commerce.
Views on legal transplantation:
I. Custom theory (approach)
II. Legal engineering approach
III. Degree of transferability approach
 Custom theory: F. von Savigny, a German thinker of 19th century,
elaborated this approach.
It 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.
It 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.
Accordingly, if one attempts to take the laws of X community to Y
community by way of legal borrowing, those transferred laws will
inevitably fail.
II. Legal engineering approach
An opposing theory, developed by Alan Watson holds that
there is no unique connection between law and society.
It also holds that no community has ever been legally self-
sufficient in the history of mankind.
 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 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.
III. Degree of transferability approach
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 such 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.
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:
It 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.
Cont’d
The question is whether people have actually adjusted their
behaviors to the prescriptions of the 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. The gap is
not a small one; it is quite substantial.
Reasons for the gap(Ethiopia):
 The first possible reason is that the imported laws have
not yet been sufficiently communicated to the people.
 Secondly, 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???.
Cont’d
 Thirdly, the state lacks the necessary resources to
implement some of the provisions of the imported laws.
 The fourth reason, is that 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.
 The other factor is that 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.
Cont’d
Finally, it is argued that 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.
Challenges in the Study of Legal History

The fundamental problem of legal history is

lack of sufficient and reliable evidence of past
events.
For instance; lack of sufficient, accessible and
reliable data is one of the main problems in the
study of the Ethiopian legal history.