How many countries have ‘Codes’ as a basic legal source in the world? In how many countries legal systems the term ‘Codification’ exist? Are there common features of codification used as a basis for comparison and analysis? Although the exact number of codes is uncertain today, the UNESCO-sponsored survey on the basic sources of various legal systems in 1957 reveals that from 110 countries 73 countries had legal sources called ‘codes’ and the work of ‘codification’. In other words, codification exists in 67 per cent of known legal systems and each system consists of an average of 6 codes. This figure seems to suggest that codification has become prevalent in most existing legal systems.
Despite its wide existence, the meaning and role of codification is different on what period and which country is considered. It may also take different forms since it may be required to fulfill different functions. It could be resorted to as a means of self-expression on nationhood or statehood as in the developing countries. Or it represents a means of assertion of a novel social and political system as in the countries of Eastern Europe. Academics in this field offer a large number of definitions which reflect a common agreement that a code is an enacted, organized statement of law in a particular field. But they offer no consensus as to the drafting style, level of comprehensiveness or exclusivity required to make an instrumental a code. In modern legal systems, legal reforms are introduced through legislation. When the legislative reform is comprehensive and professes to encompass an entire legal field, it is customarily defined as ‘codification’, and its ‘product’ as a ‘code.’
Originally, codification was part of the history of European Civil Law countries, following the tradition of Roman law and the model of the Codex Justinianus (6th century A.D.). Later, however, the idea of codification extended beyond European countries and spread over almost all over the world. The civil law of Rome has spread over Continental Europe, and has retained its authority for many centuries; the French Code has been largely adopted by other countries; and even at this early stage of its history the German Code has been made the basis of the codification of the private law of Japan. The first major wave of codification outside Europe was inextricably linked to colonialism. Others were enacted by sovereign, non European states though still largely under the influence of European models. The French, Swiss, German, and Austrian models are among the continental European models that have strongly influenced the rest of the world.
By making a historical and comparative reference to these four influential European countries, Gunther A. Weiss (hereinafter Weiss) has identified six core features of European codification. He has indentified the six core features of continental European codification as:
(5) National Legal Unification and
Weiss has explained, although there is no general consensus in the literature with respect to which of these elements and to what degree are necessary, there are certain consensus in the literature when scholars explain codification. He also emphasizes that it is a familiar problem with complex and abstract phenomena and this problem is solved by referring to Max Weber’s ‘ideal type’ by combining varied empirical significance in order to create a model of taught. These core features of codification are helpful in understanding reality and in qualifying certain efforts as codification.
This article aims at applying the ‘Authority’ core feature to the Ethiopian civil code (and later the remaining core features) in order to critically analyze whether the Ethiopian civil code complies with the continental European codification or not.
Ethiopia is one of the Africa’s states highly influenced by the model of continental European codification. During the regime of Emperor Haile Sellasie, particularly between 1957 and 1965, a group of highly complex codes – Civil code, Civil Procedure code, Penal code, Criminal Procedure code, Commercial code and Maritime code – were introduced which gives Ethiopia one of the most modern legal systems in the World. Before the introduction of these codes, Ethiopia operated with an informal mixture of legislative/executive and customary laws. Penal, Civil, Commercial and Maritime Codes were modeled on Continental European Law and the remaining two Procedure Codes were based on British-Indian Common Law Models. The introduction of these codes and Ethiopia’s herculean effort towards modernization was described as unique for its ‘eclecticism’ and categorized the country as a ‘mixed legal system’. This is because of two apparent reasons. On the one hand, unlike most African countries which retained at least some post-colonial parental ties, Ethiopia (which has never been colonized) makes voluntary reception of foreign laws on the basis of what seems best, and on the other hand, the choice resulted in modeling from two different legal systems. As stated in the prefaces of most codes, the purpose and goal of these codes was, on the one hand, to establish a perfect knowledge of the law by providing a clear, systematic, compact, complete and authoritative statement of the law and on the other hand, to develop Ethiopian legal system towards modern system. As a result, the introduction of these set of modern codes marks the end of unwritten and customary scattered rules and the beginning of the modern legislative framework of Ethiopia. Apart from the Penal code which was entirely replaced by the 2004 criminal code and some scattered amendments of Civil and Commercial Codes, all these six codes govern most fields of current legal activity and remain to be in force as primary source of law.
The civil code of Ethiopia was one of the codes highly influenced by the continental European model. The Ethiopian authorities took the side favoring the continental system by calling the French jurist to work out the preparatory plans of the civil code. As a result, the French man Rene David was the first well known comparative law jurist which codified the civil law. Thus, the Ethiopian civil code was to a large extent modeled on the French Code, and in this manner the French code had a direct influence on the Ethiopian civil code.
Unlike other legal systems that have grown from a tradition dating back to hundreds of years of development, the Ethiopian civil code with its twenty one part featuring 3367 articles developed over a short span of time. For nearly fifty two years, the civil code has been at the very heart of Ethiopian civil law and incorporates many legal concepts and institutions of continental European law, such as legal person, family, succession, goods, property, literary and artistic ownership, tort, agency, contract, arbitration and so on.
Authority is one of the elements of continental European codification that Weiss has identified. Basically, this element reflects that codification must be enacted by a legislator competent to make law and hence, the exercise of legislative authority defines codification as a modern codification. With respect to the authoritative element, Weiss has explained that the history of codification is the history of legislation and codification reflects the evolution (emphasis added) from custom to the collection of preexisting law to legislation as positive law. Thus, codification itself became the source of law. In the history of continental European codification, this core feature appeared as a transition from old to new perception through evolution by the thesis of historical school taken over by the sociological school of law. According to Weiss, Codification does not derive its authority only from cases, scholarly discussions or reference to other sources of law.
A closer look at the history of Ethiopian civil code with this core feature reveals the following two factors. First, the nature of Ethiopian civil code is more revolutionary than evolutionary; and second, there is a question of the exercise of legislative authority over the civil code.
With regard to the first nature, Ethiopia has chosen to have a civil code in the absence of previous monuments. Prior to the introduction of the civil code, there existed neither a collection of jurisprudence nor a doctrinal work on the civil law; neither were there any laws except some very fragmentary dispositions contained in a law on loan, a law on nationality and an ordinance on prescription. However, Ethiopia has had a functioning system with indigenous customary laws from different ethnic groups and some legislation, primarily in the public sphere, in the form of statutes and decrees from imperial government. For centuries, Ethiopia was ruled by an amorphous combination of customary laws. Religious laws like ‘Fetha Nagast’ (Law of the Kings) were also applied under the monarchical administration in limited areas of the country. Ethiopia, during the codification process, wanted to change and replace these scattered customary and religious rules to a comprehensive code and wishes the code to be a program envisaging a total transformation of the society. This ambition was similar to the core features of codification that had happened elsewhere in Europe which evolved from custom to the collection of preexisting laws to legislation as positive law. Nevertheless, the transformation of the society in Ethiopia was created by importing the best out of the external systems of law and practices that appeared to have worked in European societies. Such laws were, however, supposed to be adapted in line with the Ethiopian traditions and culture. Emperor Hailesellasie I directed the codification commission and the foreign drafters to incorporate customary laws and traditional legal institutions of the country. Most importantly, the Emperor asked the reflection and combination of customary rules into the civil code and in such way that they would fit to the existing and the future needs of the country. However, the draftspersons mostly were guided by the keen desire of modernization and largely disregarded and failed to give adequate place to customary laws and institutions. In connection to this, Ofosu-Amaah has provided the following:
Although the point of adaptation was stressed and the importance of infusing Ethiopian traditions and culture into the laws was an objective, it was clear that those who were responsible for the new codes were guided by the keen desire of modernization rather than by attempts to infuse traditional practices and values.
Despite the emperor’s guidelines and some effort to include customary laws in the civil code and despite the protest against the neglected of the much developed centuries-old legal tradition, the civil code was officially promulgated without leaving adequate space for the widely-practiced customary mode of dispute settlement. It repealed not only customary rules that were inconsistent with the provision of the code but also all customary rules concerning matters provided for in the code. Nor did the code allow some grace period until the code could be disseminated – both physically and in content – but rather its immediate enforcement was declared. Thus, the effort resulted in repealing written and customary laws in Ethiopia and ended up with the importation of a foreign code. This has brought interference with the operation of customary and religious rules and brought a complete disruption of the institutions most closely valued by members of traditional society. Hence, Ethiopia decided to bring about change in its legal system through a revolutionary way rather than an evolutionary one. In this case, the Ethiopian civil code is revolutionary than evolutionary. What is striking is that even if the code eliminates customary laws, the application of customary rules has continued to the present time. Furthermore, as shall be argued in chapter three, the 1995 Ethiopian constitution formally recognizes the jurisdiction of religious and regional customary courts which inevitably raises the vital question of the status of pre-code customary laws.
Second and following from the above, a general observation can be made on the exercise of legislative authority over the civil code. The Ethiopian civil code was promulgated on May 5, 1960 by the parliament. Here, we can conclude that the civil code was enacted by the competent legislator, i.e. the parliament and had its legislative authority as Weiss has identified. Nevertheless, when the civil code is analyzed through its fifty two years life span, there is an apparent question over the exercise of legislative authority and the validity of the code under the current federal system of government. Here, as identified in the introductory section, the analysis is made irrespective of time consideration as the civil code is still in force and applicable in the country. Therefore, it is legitimate to make an analysis over the civil code with the core features of codification irrespective of time.
Despite change in political and legal arrangement, the Ethiopian civil code more or less survived all political upheavals. Thus, a general remark on the constitutional development of Ethiopia will let us understand the current status of the civil code. Since the promulgation of the Ethiopian civil code, Ethiopia has adopted different constitutions within the last five decades. The regime of Emperor Haile Sellasie was characterized by its two imperial constitutions: the 1931 and 1955 constitutions. These constitutions were the basis for the enactment of the civil code and they are based on the principle of political and legal centralization and the legend of the Solomonic Dynasty and religious legitimacy. After fourteen years of power since the enactment of the civil code, the regime of Emperor Haile Sellasie came to an end with the coming to power of the Derg military regime. The 1987 Derg constitution, even if it did not alter the ideals of political and legal centralization, came up with a fundamentally different ideology and declared the country to a socialist state. The ideological basis of this constitution was the construction of an egalitarian society. All existing imperial laws including the civil code, orders, and regulations were declared to continue to have effect unless they are contradictory with the Derg constitution. Because the Derg regime did not alter the ideology of political and legal centralization, the civil code more or less continued to be a source of civil regulation. The transitional charter which crumbled the Derg regime and which was the basis for the current constitution was introduced during (1991 to 1994). To this end, the 1995 constitution has come up with a complete divergence from previous regimes by establishing federalism as a political structure. With a complete departure from the ideology of political and legal centralization of the Imperial and Derg constitutions, the 1995 constitution formally introduces a political and legal decentralization. By establishing a federal form of government, the constitution offered for plural law-making institutions and hence, legislation that affects a citizen can have either the federal or the state legislature’s source. Like the Derg regime, all prior laws – both from the imperial and Derg regimes – were declared to have a continual effect unless they are inconsistent with the provisions of the constitution. With this declaration, the civil code maintained its life to the present time. But this time the extension of the application of the civil code is not as easy as the Derg regime and there is a vital question over the exercise of ‘legislative authority’ and the application of the civil code in state jurisdictions.
Who has the power to legislate the civil code? Or who is the competent legislature regarding civil laws? Is the provision giving the civil code a continuous effect valid within the state jurisdictions? In principle, civil law is a matter reserved for state’s legislature by virtue of article 52 of the constitution. However, as a matter of exception the federal government may enact civil laws when the House of Federation declares that it is necessary to enact such laws to establish and sustain one economic community. Because the House of Federation is composed of representatives elected by the state councils, the power to decide which civil laws should have a national application is entrusted to it. Thus, civil laws that will have a national application can only be enacted if the House of Federation decides and directs the House of Peoples Representatives to enact the same. This shows two things: first there will be no single national civil code unless the House of Federation consent for the purpose of establishing one economic community and second, each state has an exclusive right to determine and enact civil laws within their jurisdictions. In other words, the competent legislature to enact civil laws is state’s legislature. In this case, the parliament’s declaration of the continuation of the application of the civil code as long as it is consistent with the constitution is valid only to the extent that the federal jurisdiction is concerned. This is because the House of Federation does not give its opinion on the application of the civil code in the whole country. Furthermore, apart from repealing and changing certain sections of the civil code, none of the states has declared the status of the civil code in their respective jurisdiction. For example, provisions of family law from the civil code (Articles from 198 to 338 and 550 to 828) were repealed and replaced with new family codes by some states and by the federal government independently and with their respective working languages. The rest of the states either apply the provisions of the civil code or opt for state customary or religious rules. As a result, the exercise of legislative authority over the civil code is constitutionally questionable and its applicability from state to state is different.