Citation: 37 Tul. L. Rev.

187 1962-1963

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A CIVIL CODE FOR ETHIOPIA: CONSIDERATIONS

ON THE CODIFICATION OF THE CIVIL LAW IN
AFRICAN COUNTRIES*
RENt DAvIDt
The title of the present article is a civil code for Ethiopia, and
not the Civil Code of Ethiopia. My intention is not in effect to present nor to comment upon the new Civil Code which was promulgated in Ethiopia in 1960, but rather to set out the problems
which have arisen since the decision was made to adopt a civil
code in Ethiopia and particularly those of drafting the Code and
putting it into effect. The problems examined here appear to me
particularly interesting, for they surpass the boundaries of Ethiopia and are undoubtedly to be found again, with variations, in the
numerous countries which, whether or not having recently gained
their independence, envision the modernization of their institutions
and their law.

I. THE USEFULNESS OF A CODE

The first question which is presented for these countries is
whether it is appropriate for them to codify. Does the formula
for codification as it was received in the nineteenth and twentieth
centuries in the countries of continental Europe constitute a formula appropriate to the circumstances and to the needs of countries
such as Ethiopia?
In our countries of western Europe we can but little conceive
that our law-notably our civil law, our commercial law, and our
penal law-could not be codified. It is appropriate always to bear
in mind that in certain highly developed countries (England, the
English speaking countries and Denmark), these branches of law
have not been codified. Even in France codification in its present
form goes back only to a recent past, the Napoleonic era; the end
of the nineteenth or the twentieth century for other countries. This
technique has not, in fact, been applied to the entirety of the law:
administrative law, private international law and the law of delictual responsibility have either not utilized, accepted nor adopted
it or have accepted, utilized and adopted it only to a restrained
degree and with great reservations. All of these factors seem to
indicate that codification, if it can on occasion present advantages,
constitutes a recommendable formula only in certain surroundings
and circumstances. Would the Ethiopian civil law-to which we
*Translated from the French by Remy F. Gross II, LL.B., Tulane University, 1962.
tProfessor of Comparative Law, Paris University (Sorbonne) Law School.

TULANE LAW REVIEW

[Vol. XXXVII

are restricting our study-be likely to profit, under its present

circumstances, from the fact that it could be codified? The question hardly appears to have been raised. The decision to codify
was apparently based on the idea held in Ethiopia that codification
in itself was progress, a desirable and even necessary thing for
the country. This belief is, in my opinion, justified. It is true
that for a long time, and even today in certain countries or for certain subjects, people have been able to live without having codes.
But this is possible in certain advanced societies only because there
are in these different countries substitutes for the nonexistent
code. There are large bodies of laws equivalent to small codes,
even though they do not bear that title. There exists a body of
jurisprudence that doctrine has systematized to a large extent by
presenting in digests or texts. The formula of codification can be
avoided in certain countries or for certain subjects because the
absence of codes does not lead to insecurity and arbitrariness. The
existence of an abundant juridical literature and of numerous
sources of legal documentation permits advanced countries to question whether codification is the best technique when the moment
has arrived to codify some subject, or whether it is not preferable to wait to see more clearly the trend of some development
which is in progress, so as to intervene only when the rules will
appear more clear cut or become more stable.
Ethiopia and other countries in similar circumstances have
not had the same choice. Only ten years ago there existed in that
country 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. Under these conditions
citizens were left without a guide to their laws and obligations.
The door was open wide to arbitrariness and all security was lacking.
With conditions in the modern world, where highly developed
states exist, it is inconceivable that one might build in a country
such as Ethiopia the road which has been built in western Europe
in the course of centuries of groping. Ethiopia cannot wait 300 or
500 years to construct in an empirical fashion a system of law
which is unique to itself, as was done in two different historical
eras by the Romans and the English. The development and modernization of Ethiopia necessitate the adoption of a "ready made"
' A collection calling for 7,296 summaries of decrees of jurisprudence
classed systematically was compiled on the initiative of the Minister of Justice in 1954 to aid the work of codification. Not having been printed, it exists
only on a limited number of examples and can be neither easily nor freely
consulted.

19631

,CIVIL CODE FOR ETHIOPIA

system; they force the reception of a foreign system of law in such

a manner as to assure as quickly as possible a minimal security in
legal relations (with an understood reservation for a subsequent
adaptation, to specific Ethiopian needs, of the corpus juris thus
received 2).
Consequently codification was thrust on Ethiopia as it is thrust
on all countries which find themselves in an analogous situation.
To this conclusion it is always befitting to assign a reservation.
What was peculiarly necessary was the reception of a body of preestablished law rather than the technical formula of codification.
Doubtless, it would hardly have been conceivable that Ethiopia
adopt, as once did the diverse territories of the British Empire,
"the English law (or some other law) as it existed at such and
such a date." It would have been perfectly conceivable, however,
that a strange law be received and adapted to the needs of Ethiopia, not in drafting a code, but in giving the force of law to works
of doctrine. Before assuming its preference toward codification,
western Europe used this formula: the Roman law had recourse
to it with the law of citations, the canon law recognized the strength
of law in the Decree of Gratien, the English law had its "books
of authority," Hungarian jurists have considered a law like the
Tripartitum of Verbdczy, and other doctrinal works have been considered as being the authorized and incontestable exposition of a
national or regional law.
The same formula could have been used in Ethiopia and it
would have had certain advantages there. With its highly technical form, the civil code is not perhaps the best adapted tool for
countries where today and for a long time in the future one must
not expect to find a number of jurists trained in western legal
method. A presentation of the law in book form, not only formulating rules but giving an explanation of them, furnishing a commentary on them, illustrating them by examples, would have perhaps been preferable to a code strictly conceived on the French
model. 3
2 An obvious analogy is presented with the phenomenon called the "rebirth of studies in the Roman Law" in the thirteenth century. Continental
Europe was spared the gropings of the common law in adopting in a block
on the academic plane, and with reservation on the practical level, the "model"
constituted by the compilations of Justinian.
3 The two formulas, moreover, are not opposed. Let it suffice in this
respect to consider, in a modern epoch the Code of Obligations and Contracts
with its definitions and doctrinal introductions, drafted by Josserand for
Lebanon or yet, the codes established for India, in the time of English domination, with the practical examples that follow the enunciation of the articles.
One will see how it was judged necessary here and there to correct the very
abstract character of the codes and to facilitate the comprehension and utiliza-

tion by doctrinal explanations.

TULANE LAW REVIEW

[Vol. XXXVII

Ethiopia has chosen to have a code. I believe that this was

right. In the absence of previous monuments, it would undoubtedly have been more difficult to present Ethiopian civil law in treatise
form than it was to present it in the form of a code. We fear in
any case that the code may be too schematical and abstract, especially in certain sections, and we think that it ought to be quickly
completed by a doctrinal work, the Institutes of Ethiopian Civil
Law, presenting rules in a more readily comprehended and concrete form, helping Ethiopians understand the meaning of technical expressions which have been used in the Code but which are
not familiar to them. 4

II. CODE OF THE CONTINENTAL OR ENGLISH MODEL?

Once admitted that Ethiopia was interested in adopting a civil
code, the second question presented was whether the model of this
code should be taken from a Romanist system of laws or from the
common law system.
The question was not resolved a priori. It is true that the formula of codification appears to us as being a formula strictly "continental ;" the "codes" of the United States or of other countries
of the common law do not seem to be the full equivalent of civilian
codes.
The codes of continental Europe, even if they lean heavily on
tradition and in fact perpetuate it, are considered as operating
a sort of novation; they constitute an expos6 of the law sufficient
in itself, and the point of departure for a new development of juridical rules. The codes of the common law countries, on the contrary, do not abolish the prior law. Their essential function is to
set out systematically principles which are thus confirmed and
remain in force; the rules of law theretofore accepted are modified and modernized by codification only on occasion and only
on special points. Law and code, one can say, are synonymous in
the continental European conception. The code in common law
countries is only an accident in the development of a law which was
existing and continues to exist in a way independent from the new
code.
When the conclusion was reached that Ethiopia must adopt
a code, the difference between the two types of codes was hardly
taken into consideration. The important thing was not the deci4 The necessity of developing such a work is recognized today in Ethiopia.
A number of judges are disoriented by the new codes that they have to apply. It is necessary to put at their disposition a simple work which expounds
the s~stem followed by these codes to prevent one from devoting himself to
the letter of dispositions considered separately without considering their
context.

19631

,CIVIL CODE FOR ETHIOPIA

sion to have a code in the French or German sense-a Restatement or some other form of corpus juris would have done as
well, provided only that the compilation adopted were sufficiently
detailed and provided, of course, that its imperative character
were recognized.
The difference between the two types of codes in a similar
case must not be exaggerated. All things considered, few difficulties have resulted in the interpretation of uniform laws where
the latter have been adopted in countries in which the law is attached to different juridical families. On the other hand the example of Turkey appears significant to us. The jurists in that
country argue about what was received in Turkey in 1925: - Was
it the Swiss Civil Code, or was it the Swiss civil law? In other
words, was it a certain number of juridical rules which were declared obligatory so that these rules would establish just so many
exceptions to the principles of traditional Turkish law maintained
in force-or have the principles of the Swiss juridical order themselves been implicitly received in the nature of civil law, so that the
rules of the Swiss Code appear henceforth for Turkish jurists not
only as solutions imposed on them, but implying also the basis
of their reasoning with respect to the discovery of other rules
and solutions?
The fact is that thirty years after putting a Turkish Civil Code
modeled on the Swiss Code into force, the Turks have not yet
reached agreement on this subject, which tends to prove the theoretical character of the problem thus posed. However, the question is
hardly presented when a code is as detailed as the Turkish Civil
Code or the new Ethiopian Civil Code. In the absence of an indisputable common law, as is the common law of England, the distinction between codes in the continental style and codes in the style
of the common law vanishes; the continental conception inevitably
triumphs. However, even on the basis of the Code, in time there
will develop, with a reliable steadiness, a law properly Ethiopian,
having its own rational characteristics. In this evolution it will be
difficult to differentiate between that which relates to a tradition
more ancient than the code, inspiring modes of reasoning and
original interpretation, and that which will be the product of circumstances or of modern points of view, distinguishing Ethiopia
from other countries which have codes.
The problem that we have presented is no less real, but is present
on another plane. It is a matter of knowing if the concepts used in
the Code will be those of continental law or those of the common
5 On this problem, cf. Annals of the Faculty of Istanbul, No. 6 (1956).

TULANE LAW REVIEW

[Vol. XXXVII

law. The two categories of concepts in fact lend themselves in the

same manner to codification; all that can be said is that on this
subject, much greater experience has been acquired to this day
concerning the concepts of continental law.
This question was foreseen and resolved only in an indirect
way by the Ethiopian authorities. These authorities indirectly took
the side favoring the continental system when they called French
and Swiss jurists to work out the preparatory plans of codes. One
could well expect of these jurists, in fact, that they be aware of
the concepts of English reasoning; but it was clear that their composition and the care of perfecting a technical work would lead
them inevitably to propose codes established on a continental model.
Did there exist reasons for preferring the continental model to
the English model? It is probable that the final decision was motivated not so much by juridical arguments as by considerations of
a political or cultural order: the desire to counter-balance, by an
appeal to other sources, an English or Anglo-American influence
which they feared was becoming excessive. The Ethiopian situation
on this subject is not without analogy to that of Latin America,
where countries are preoccupied with maintaining close cultural
ties with Europe to counter-balance the pressure exercised on the
economic level by the United States.
Aside from this argument the choice made by Ethiopia can
be explained by another consideration, that of the desire to live
faithfully in the Ethiopian tradition. This tradition, without any
doubt, is weak enough if one considers it from a practical point
of view. Ethiopian juridical science has not existed up to our time,
and the rules applied by the tribunals of Ethiopia are apparently
inspired little by the principles set out in the Fetha Negast. Whatever the differences between the rules contained in this collection
and the solutions applied in practice, it remains no less true that
the Fetha,Negast has been constantly considered in Ethiopia as
the model, crowned with a character nearly sacred, to which it
would have been desirable to conform. Moreover, this model is
related to the Byzantine tradition of law: the Fetha Negast is a
translation into g6'ez of arabic precepts of law which found their
first inspiration in the book of Syro-Roman law,. and consequently
in the Roman law. In making his decision to link Ethiopian codification to the system of Roman-Germanic law, undoubtedly Emperor Haile Selassie was guided in part by an instinctive desire
to remain faithful to a venerated tradition; the allusion that he
made to the Fetha Negast in his address inaugurating the work
of the codification commission left no doubt in this regard.

1963]
III. RELATION

CIVIL CODE FOR ETHIOPIA

BETWEEN THE CODE AND CUSTOM

A third question which arose is the following: With respect

to the laws which would ultimately be adopted, to what degree is it
fitting to take into account the customs actually followed in Ethiopia?
For a jurist of western Europe to understand well how the
question presents itself in a country like Ethiopia, a certain effort
is necessary to rid himself of a number of ideas or prejudices
he might have. The first idea of this jurist will be to think that a
code will be a purely theoretical work devoid of real value if it
is not strictly in accord with local customs. Especially in matters
of private law we are profoundly marked in our western countries
by the thesis of the historical school, taken over by the sociological
school of law. We observe the stability of our private law, and
we believe with difficulty in the efficacy of laws which pretend
to impose on private individuals another mode of conduct than that
practiced by them according to their tradition,
This position is not that of the Ethiopians, nor of other countries
comparable to Ethiopia, which are looking toward a total renewal
of the basis of their society. Like the Soviet Union and the communist countries, although with another ideal, Ethiopia and a
number of African countries are presently in a revolutionary period. While safeguarding certain traditional values to which she
remains profoundly attached, Ethiopia wishes to modify her structure completely, even to the way of life of her people. Consequently
Ethiopians do not expect the new Code to be a work of consolidation, the methodical and clear statement of actual customary rules.
They wish it to be a program envisaging a total transformation
of society and they demand that for the most part, it set out new
rules appropriate for the society they wish to create.
Does his conception lack realism? Certainly neither a total nor
immediate success must be expected in all fields from the principles on which the new Code was founded. But it is not useless
to enunciate the objectives on which they have settled. We do
not condemn as useless our constitutions with their preambles or
declarations of laws which often wait a long time to be put into
practical application. In the matter of private law especially, it
must be remembered that for centuries an ideal law, a Roman
law, which had little by little been transformed into natural law,
was taught in our universities of all countries, and not the positive
law, the customary, jurisprudential or legislative rules applied
here and there. Gradually, in the course of centuries, this ideal
law was received or made its influence felt on the practical law,

TULANE LAW REVIEW

[Vol. XXXVII

up to the time when, in the nineteenth century, it became plainly

positive law by the codification of national laws.
In the same manner, the schools of Islamic law traditionally
teach a Moslem religious theory distinct from customary rules
or other rules that local tribunals apply. Likewise in Ethiopia
the eminent authority of that precept, the Fetha Negast (Justice
of the Kings), has been recognized for centuries, while it was
realized that its rules were very imperfectly followed in practice.
Was it necessary to abandon this conception of an ideal law
to adopt a sociological positivism contrary to tradition? The Ethiopians considered rather that their codes were to precede a new
edition of the Fetha Negast, founded on reason and on the teachings of comparative law. They considered it offensive to formulate laws under the form of legislative precepts which are perhaps
followed in fact by the majority, but which Ethiopians are unanimous in considering as bad in themselves and which they follow
only because man is an imperfect being.
A code is, in the Ethiopian conception as well as in our own
traditional conception, and likewise in the Soviet conception, a
model of social organization. It aims at the perfection of society,
and not only to a static statement of behavior observed by the sociologist. For these reasons it is apparent that it was doubtlessly
necessary to take customs into account, but it was necessary to
keep this accounting limited, and not to fear changing them.
It was necessary to take customs into account in order that the
Code not be an abstract, theoretical work without ties to the profound sentiments of the Ethiopian people. But it is necessary to
account for customs only to the extent that they correspond to a
profound sentiment of the Ethiopian people, and conform to that
which is felt by them as being just. This is not the case for all
these customs, many of which correspond to the conditions of
life then and now; it is hoped that the years to come will render
these customs inconceivable and odious even to Ethiopians.
The Ethiopians have definitely stopped in an intermediate
position, with a view toward conciliating the contradictory positions which one sees in the Code: one the model for society to
come, the other the statement of the rules to be followed by judges
for the solution of litigation in the immediate present. The Ethiopians have sorted out their customs, keeping only the necessary
ones which either correspond to their profound sentiment of justice, or else apear too generally followed and too profoundly
rooted for one to hope to take them away from Ethiopians in the
forseeable future. Naturally customs were elsewhere followed when

19631

CIVIL CODE FOR ETHIOPIA

they were conformable to, or simply when they were not in contradiction with, the ideal order of which the Code pretended to state
the rules. Had they wished to do so, to follow strictly Ethiopian
customs would have been to run up against an impossibility of fact;
an impossibility because in certain matters there is a total absence
of customs. For example, the entire matter of contracts in the

Code is a new thing, for the Ethiopian society of yesterday did not

know the concept of contract.6 The few rules concerning contracts

that were found in Ethiopian law were imported or of recent fabrication, eminating from the legislature or from tribunals, without

relation to true Ethiopian custom. The same impossibility existed

in other cases as to a variety of customs. The Ethiopian nation is
composed of communities which often do not follow the same
customs. This fact is true not only when one considers the diverse

ethnic groups (Amharas, Gallas, Gouragu~s, Somalis, etc.) but

it is also true even when one considers the same ethnic group.
It is aggravated by the fact that the customs remarkably lack
stability; the reading of two books published with the same name,
Diritto consuetudinariodell' Eritreaby two Italian authors, C. Conti-Rossini and F. Ostini, 40 years apart, in 1916 and 1956, is revealing in this regard. The idea of a custom with a sacred character, quasi-immutable, does not conform to the facts when one
envisages the populations of the Ethiopian plateau, whether it
be a matter of Amharas or Gallas. The circumstances of the present epoch are of a nature to precipitate this evolution. In anticipation of this evolution, in choosing the custom which now and henceforth appears to be the most modern among the many customs in
being, it has been possible to cast an eye to progress without breaking the tie that legislation must necessarily have with the state
of mores and customary practices in the country to which it is
called to be applied, if it is to have a national character and to
be realistic.
The progressive character of the Civil Code, envisaged as a
model, was adjusted from a realistic point of view in the preparatory plan with the aid of sufficiently elaborate "transitory dispositions" which provisionally maintained in force the rules actually
followed on a certain number of points. Special dispositions had
thus been forseen on that which concerns matters of personal
status for persons of the Moslem religion. It is permissible to regret that the Ethiopian Minister of Justice did not hold to these
dispositions at the time of the discussion of the Civil Code in Par6 The way in which the word "contract" ought to be expressed in the
Amharic language was discussed by the commission. The French word contrat was kept throughout the first phase of the discussion and it is only

in the last hour that it was finally abandoned and replaced by the Amharic
word wul.

TULANE LAW REVIEW

[Vol. XXXVII

liament. These dispositions were intended to prepare a halting

point on the road to progress, which seems to us indispensable in
terms of the application of the Civil Code.
IV. CONTENT OF THE CIVIL CODE

What matters are appropriate for regulation in a Civil Code?

Questions concerning frontiers with other codes inevitably present
themselves on this subject in all countries. These questions do
not call for particular remarks on matters concerning Ethiopia or
countries placed in a condition analogous to Ethiopia.
On the other hand, it appeared that in drafting the Ethiopian
Civil Code there was interest in expanding to a certain degree
the framework of matters commonly regulated in civil codes. Research of juridical rules is a difficult thing in all modern countries; its difficulty risks enlargement in countries where one cannot rely on legal periodicals to cover the laws appearing in the official journals. There is interest in these countries in grouping
all the juridical rules into a small number of codes which can be
re-edited and brought up to date periodically. Also there was no
hesitation in Ethiopia to include in the domain of the Civil Code
certain matters which in other countries can be considered autonomous as they relate to other branches of the law: registration
of civil status, registration of immovables, expropriation or administrative contracts. We regret that the matter of nationality and
that of conflict of laws, which were included in the preparatory
plan, have, for different reasons, been excluded from the -Civil Code.
Such as it is, with 3367 articles the Ethiopian Civil Code presents itself as one of the longest contemporary civil codes. This
is due, aside from the reason which has just been given, to the
preoccupation with being as complete as possible in a country
where there exists outside the code no inherent doctrinal or jurisprudential monument to guide the jurists in the interpretation of
the 'Code. Thus certain contracts such as the contract with a
medical doctor or with a hotel keeper, which in other countries
are often regulated by their own "general principles," have given
way to special regulation. The matter of extra-contractual responsibility has given way to much more detailed regulation than in
other civil codes.
Very important and very detailed alphabetized tables appear
in the Ethiopian Civil Code which unfortunately have been omitted
in the Amharic and English editions, but appear in the Negarit
Gazet.' The redaction of these tables has contributed strongly
7 These tables will be published very close to the Negarit Gazeta, at the
same time as a list of errata (errors) on the Civil Code.

19631

CIVIL CODE FOR ETHIOPIA

to making the terminology used in the Code uniform in such a

manner as to avoid discussions which would have inevitably been
provoked by the use of dissimilar terms to denote the same thing
or to express the same idea. The tables ought, on the other hand,
considerably to facilitate legal advice from the Code in a country
where counselors cannot yet be familiar with the system and classification of the Civil Code.
Finally a word deserves to be said on the accord between the
Civil Code and the Code of Commerce. This duality corresponds
to a division of the work which was effected by two jurisconsults
charged with preparing the codification. It has no other significance and in no case can one find the same institution regulated
at the same time in a different way in both the Civil Code and
in the Code of Commerce. It appeared to the experts that it would
be a useless complication in Ethiopia to distinguish in principle
between civil law and commercial law. There can exist, as in
Switzerland, special rules for commercial matters, but these rules
are set out within chapters which envisage civil and commercial
matters at the same time. The distribution of matters between
the Civil Code and the Code of Commerce, not being dominated
by a commercial criteria, is in large measure arbitrary. All sales,
all mandates, and all pledges are thus regulated in the Civil Code,
while all insurance, all conveyances, and all partnerships are regulated in the Commercial Code.
V. PROCEDURE OF ELABORATION OF THE ETHIOPIAN CIVIL CODE

The Ethiopian Civil Code was elaborated in three stages. A

preparatory plan drawn up by a French expert was followed
by a projet established by a codification commission. The project became the Code, with the modifications effected by Parliament.
The preparatory plan was established by the expert in the
period from October, 1954, when the title Of Contracts in General
was sent by him to the Ethiopian Minister of Justice, to April 20,
1958, when the Alphabetical Table completing the Code was drafted. It is good to know that during all this period, the redactor
was able to dedicate himself exclusively to his task of codification,
having been discharged from all his other obligations and in particular, having abandoned his teaching on the Faculty of Law of
Paris.
In a general manner the work was begun on the more technical
books, IV and V, since to edit them the redactor felt it less necessary
to familiarize himself with customs and Ethiopian points of view.
Next, the title Of Ties of Kinship and Marriage was drafted, the

TULANE LAW REVIEW

[Vol. XXXVII

three titles of Book I, the different titles of Book III, the title
Of Successions, and finally two titles Of the Application of the
Laws which contain the rules of conflict of laws, and Of the Enforcement and Application of the Civil Code, which notably contains transitory dispositions.
The order thus indicated is only approximate. In the course
of his work, the expert was led to propose changes or to make
additions to the parts that he had already established. It is thus
that the chapter Of Donation, that on The Contract for Real Estate, that on Public Domain and Expropriation, and the title Of
Administrative Contractswere drafted only after Books I to III of
the Civil Code.
At the same time as the different titles were presented, or shortly thereafter, the redactor presented to the commission an expos6
des motifs and a commentary on this title. These commentaries
were originally very well developed. They became more brief when
it appeared that the translation service, dedicating itself by priority
to the texts themselves, was not able to assure translation in the
time desired.
These documents remain useful, nevertheless, in order to make
known the sources used by the expert, and especially in order to
explain the reasons for various dispositions, notably those that
the commission could be surprised in finding in the preparatory
plan, or those tied to Ethiopian particularities that a stranger
would be surprised to find in the Ethiopian Civil Code.
To the extent that it was elaborated, the preparatory plan
was translated to the Minister of Justice and submitted to the
criticism of a codification commission. This commission, composed principally of judges and high Ethiopian functionaries, comprised also certain foreign members residing in Ethiopia. Very
rapidly, however, it appeared that the presence of these foreign
members was never essential, and that on the contrary their presence created the risk of slowing up or handicapping the work of
the commission, because very often it had to discuss problems
of Amharic terminology, and the foreigners were not able in
all hypotheses to fulfill in a satisfactory manner the role of the
commission in discussing the Amharic language. In fact all the
work was accomplished by a "restricted commission" composed
of only Ethiopian members of the commission. The expert participated in only a limited number of commission sessions, principally
to hear objections made to certain texts of the preparatory plan,
to discuss possible problems arising with the commission, and to
be in position to revise his work to give effect to the decisions
rendered by the commission.

19631

CIVIL CODE FOR ETHIOPIA

The commisison accomplished considerable work in two directions. On one hand it had to formulate in the Amharic language,
with precision and elegance, the definitions translated from French.
It is justifiable to emphasize the difficulty of work which was
imposed in this regard. The Amharic language does not very
often admit words apt to give an exact idea of the institutions
that one wished to regulate, and it was necessary for the commission in many instances to coin new expressions, sometimes borrowing them from the g6'ez language in which the out-dated Fetha
Negast was drafted, in each case with the need for establishing
an Amharic text comprehensible to Ethiopians of today. Amharic
thought does not even develop as does western thought, and the
work of transposition and of adaptation which was made would
not have been able to be concluded satisfactorily except for the
presence on the commission of persons versed in the grammar and
the philology of the Amharic language.
The expert had taken, it is true, all precautions incumbent on
him to facilitate this work. The division of the articles into numbered paragraphs and the limitation of each paragraph to only
one sentence had as its object facilitating the task of the commission and elucidating that obscurity which would have been inevitable if free play had been allowed to the Amharic tendency
to combine into a single sentence, generally devoid of punctuation
and as long as necessary, all the elements of an argument. The
members of the commission were in accord in recognizing that
the discipline accepted by them made their work easier and permitted them to express with more clarity the rules of the Civil
Code. Their task was no less than overwhelming on this subject.
It is not within the province of a foreigner to judge the extent
to which the nuances of the French text have been faithfully
rendered in the Amharic text of the Code. Nevertheless I had the
curiosity to have the Amharic text of the Code translated into
French by an Ethiopian, on matters concerning articles 1763 to
1804 in Title XII of the 'Civil Code. The experience was conclusive and a favorable witness to the very precise work that
the Ethiopian commission has accomplished. The French text
restored in the translation of the Amharic text was doubtless
not identical to the text from which the commission departed, but
the sense of the articles was understood, and it is concerning
the nuances only that the Amharic text can appear different from
the French text.
The second task of the commission was naturally the critical
study of the preparatory plan concerning the basis of its dispositions. Here again the commission accomplished a very important

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task. To convince oneself it is sufficient to consult the documents

entitled Modifications to the Dispositionsof Title, which were compiled by the redactor. Certain of these modifications are due undoubtedly to the draftsman himself, and spring from the necessity
of coordinating the different parts of the Civil Code which were
not entirely established at the same time. But the great majority
of modifications have as their objective giving effect to the decisions of the commission. Having to establish the Amharic text
of the Code, the commission found it necessary, because of this
fact alone, to study the preparatory plan with great attention, to
examine, one might say, each word. This examination was conducted in questioning the soundness of the proposed dispositions,
in asking for explanations from the expert, and in deciding on
many hypotheses to modify the rule originally proposed.
Conforming to the directives given by the commission, the
preparatory plan established by the expert was recast by him,
thus becoming the work submitted to Parliament. A gap yet
should be pointed out before relinquishing the exposg made by
the commission. The latter unfortunately did not have the time
to study Title XXI of the preparatory plan which bore on the Application of the Laws. Consequently, this title was taken out of
the projet with the exception of that which related to the applica
tion of the laws at that time (not retroactivity of the laws) ; but
all that concerned conflict of laws was omitted. We have deplored
this omission and have confidence that a new edition of the Code
will permit its reparation.8
The text of the projet submitted to Parliament was discussed
article by article without the cooperation of the expert, and he
was called from time to time only to give his advice to the Minister
of Justice, who was preoccupied with defending the projet on certain points against amendments demanded in Parliament. On the
whole, in comparing the projet to the text of the Code which was
definitely retained, it is permissible to say that the projet underwent victoriously the test of parliamentary discussion. Only in
the book Of Goods have important modifications intervened, the
matter of the proof of ownership and of usucaption having been
recast. The position of him who built buildings or sowed seed
and planted on the property of others was regulated with an extreme severity not contemplated by the projet. Modifications, constantly favorable to owners, were equally interposed in the regulation of the relationship between owners and farmers. Modifications
called for on the law of persons and on family law are less exten8 The publication of Title XXI of the preparatory plan under the divided
form of law is actually envisaged by the Minister of Justice.

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sive. Outside of that which has just been pointed out, practically
no other modification has been imposed on the dispositions of Books
IV and V relating to obligations and contracts.
One other modification imposed by Parliament is, in our opinion,
at the same time important and regrettable. The last title of the
projet which bore on putting the Civil Code into force and which
contained in particular numerous and important transitory dispositions was profoundly recast by Parliament and practically
emptied of its content. Only ten articles were retained of the
eighty-four that the projet of the Civil Code called for. It is to be
feared that this amputation may be the source of great difficulties
in the application of the Civil Code.
The procedure followed in Ethiopia for the elaboration of the
Civil Code gave good results on the whole. The discussion of the
Code article by article in Parliament was definitely a good thing
because it confirmed the national Ethiopian character of the new
Code and was useful in forming new jurists. This advantage, in
our eyes, largely compensated the inconvenience of some modifications made by Parliament that we regarded as unwelcome. It appears to us, however, that the procedure thus followed in itself
would, in a country other than Ethiopia, have seriously risked involving the downfall of codification. We regret moreover that
the Code, promulgated in May, 1960, was put in force in September,
1960. This delay, very brief for Ethiopia, in any other country
would be clearly insufficient.
The procedure that we had advocated was different. It consisted, first, in publishing the projet of the commission at the conclusion of a debate which would have taken place in Parliament
and which would have borne exclusively on the desire for having
a code on one hand, and on the other, the acceptance of the
principle of the projet as the basis of the new Code. The projet
published as the result of such a debate would have become the Code
and gone into force at the end of the sufficient delay of three or
even five years, giving an accounting in the new edition of the
modifications that, in this delay, Parliament would have made.
This procedure was suggested too late to be adopted.
VI. APPLICATION OF THE CIVIL CODE
The Ethiopian Civil Code, having been promulgated, went into
force on the second of September, 1960 (the first day of the year
1953 according to the Ethiopian calendar). What are the prospects for its effective application by citizens and by judges?
One must guard against making an absolute jddgment here,
and against voicing an opinion influenced by a great number of

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[Vol. XXXVII

experiences, successful or unsuccessful, which have taken place

in other eras or in other countries. In an objective manner, in
taking into account conditions peculiarly Ethiopian, it appears
possible to us to make the following forecasts.
It is quite certain that the Ethiopian Civil Code will not immediately be applied over the whole country and in all its dispositions as the Civil Code can be applied in France. Ethiopia is a
vast country. The imperial administration has for 80 years brought
a previously unknown peace into the new provinces, but the benefits of this order have as yet been followed only in a weak degree
by administrative organization, economic development, and elevation of the cultural level. The country still lacks basic unity; in
certain peripheral regions, some communities exist in a primitive
state of civilization. The Civil Code was drafted for the more
developed populations, those which inhabit the plateau of Ethiopia
and Erythia. Its application in other regions is not excluded,
but can be envisaged in the near future only in exceptional cases,
regarding that which concerns, for example, the rules of concessions granted by the administration.
On the plateau itself, which makes up the heart of Ethiopia,
the application of the Code will run against tremendous difficulties.
Certain of these difficulties were foreseen by the transitory disposition kept or retained by the Parliament; the registration of
immovables, the services of the civil registry foreseen by the
Code remain to be created, and the legal registry of the tribunals
must be instructed on the new tasks which are incumbent upon
them.
Moreover, judges and jurists who know and understand the
dispositions of the new Code ought to be instated. An educational
task is imposed on all citizens to guide them in conforming to
the precepts of the Code and in making them understand how their
development and perhaps even the existence of their country are
tied to the necessary course of a transformation wI4ich must be
effected in all the provinces and on all planes.
That all this demands time and that many obstacles must be
surmounted and resistence conquered leaves no doubt for anyone.
One cannot expect from the foregoing that the application of the
Code be integral nor that it be immediate on every matter.
Is this to say that the -Code is a useless work? We are very
far from believing this, and the enthusiasm with which the Ethiopian population hailed the promulgation of the many recent codes
convinces us that the work accomplished was truly necessary.

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The African revolution needs to be brightened by a program

bestowing the order and the rules of society that Africa wishes
to install. Ethiopia has suffered to the present from a vice inherent in the customary law, which is the uncertainty of customs
giving rise in too numerous circumstances to the arbitrariness of
the chief of the village or of the judge: an arbitrariness particularly formidable in a time of transformation where new questions
are presented to which ancient customs provide no response. The
promulgation of the Civil Code will not put an end to this arbitrariness. Nevertheless it will permit the gradual stoppage and limitation of mistakes. In the absence of the Code arbitrariness would
be able to conceal itself again behind equity. With the Code citizens
and judges are furnished with a manual cutting the uncertain
contours of equity. In the proportion that the tribunals will be
staffed with judges instructed in the Code, it will be possible to
draw away from arbitrariness and to effect the reign of security
of transactions in Ethiopia, completely necessary for the progress
of the limited security which now reigns in the country.
The Civil Code will not reform Ethiopian customs and manners today or tomorrow. Meanwhile it is not unprofitable to make
known to the citizens how the directors of the country envisage
the new order, on which principles they mean to found it, how it
is desirable for men to behave, and what behavior to the contrary
should be condemned. An organization for -education in the law
and for a structure of jurists becomes equally possible in Ethiopia
from the existence of the codes, while up to this point the better
minds wondered about the way in which they ought to conceive
and organize such a teaching.
The Civil Code gives to citizens, to administrators, to judges,
directives on the objectives they ought to envision and accuracy
on the equity of new times. That is far from being indifferent in
our opinion. But there is more, and we are waiting for the code
which will comply with another function in the immediate future.
The Ethiopian Civil Code is not immediately applicable to the
entire country in all its dispositions. But it is perfectly applicable
in the same manner as European codes for a certain category of
dispositions and in certain circumstances which particularly concern the development of Ethiopia. The Code cannot be applied immediately by all Ethiopian judges, but it can without difficulty be
applied by a restricted number of judges grouped in a superior
jurisdiction which sits in the capital itself, at Addis Ababa. The
Code cannot be applied immediately in all its dispositions; but it
can be immediately applied in certain of its parts in which it meets
no opposition from traditional mores and customs.

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[Vol. XXXVI

In this double way, one sees a sector appear, very important

for the development of Ethiopia, in which the -Code can without
difficulty receive immediate application. 'Ihe whole part concerning contracts is in fact a new part in the Code which fills a gap
in Ethiopian law but which runs against no tradition. This is true
likewise for the whole Code of Commerce. The dispositions here
envisaged ought to be immediately put into application in a way
conforming perfectly to the application which is given in Europe
to civil codes. It can and must be thus in all cases, at least when
the matter will be judged sufficiently important to be carried directly in the first instance to the judges on the Supreme Court
at Addis Ababa who are able to know and apply the Codes. That
ought to occur and occurs in fact in two series of circumstances:
when the matter is sufficiently important and when one of the
parties is a foreigner. For the remainder we envisage only gradually putting the Civil Code into effective execution. The spirit
in which we have participated in its elaboration has been that it
is first befitting to establish a model serving to guide judges or
arbitrators to orient the development of customs; the decision rendered by these judges or arbitrators ought to justify an appeal
only in cases where elementary principles of the administration of
justice, not the rules of the Code, would have been violated. It is
in gradually extending the notion of the elementary principles of
the administration of justice, in making it cover more and more
certain basic principles adjudged from the public order that we
have conceived the effective application of the Ethiopian Civil
Code for a number of years with a possibility of variation according to the provinces.
We had to renounce, being called on by other tasks, the establishment of the preparatory plan of the Ethiopian Code of Civil
Procedure for which the Ethiopian government had given us the
honor of resorting to our services. We wish that the principle
which has just been sketched be retained by those who will have
charge of preparing this Code. The 'Civil Code will appear in these
circumstances as having a double function, representing in certain
conditions the immediate positive law of Ethiopia, sketching in
other circumstances the contours of the law of tomorrow. It is
in that manner that it is necessary to conceive, it seemed to me,
the role of a civil code in all countries where, as in Ethiopia, one is
preoccupied in creating, on one side, the material conditions of an
economic development of the country, and on the other hand, aims
at renewing at the social level the very foundations of a society
which has been frozen for too long a time.