Analyzing the 'Reform' core feature of Ethiopian Civil Code
Codification was predominantly regarded as a radical reform in form and substance and ‘reform’ is one of the core features of continental European codification that Weiss has identified. The element of ‘reform’ is concerned with whether or not codification changes the form and substance of existing laws. By examining the five historical codifications, Weiss demonstrates that codification is always a combination of change in form and change in substance.
While some authors consider reform in substance as a decisive element of codification and others regard codification as a reform in form, Weiss indicated that codification is always both innovation in form and innovation in substance. Change in form results when a code establishes itself as a primary source of statutory law and reduce multiple legal sources. Change in substance, on the other hand, is caused by the legislator’s decision of having one best legislative solution and restatement of the principles of existing law in a systematic way. From the subjective standpoint of the legislature, it may be possible to have only changes in form. From a practical point of view, this however is impossible. Even if the legislature merely tries to codify the existing law, it inevitably changes the law in substance. If, for example, the previous sources are contradictory regarding one legal problem, the legislature has to choose one source for the possible solutions. This is a change in the law, since the other previously authoritative or persuasive sources are eliminated. Moreover, the mere fact that the law is reformulated and put in different words implies a change. Weiss concludes by stating that codification is, in practically all cases, a change in substance and in form.
Inferring from the historical upbringing of the Ethiopian civil code, it can be said that there was a change both in form and in substance and therefore, the Ethiopian civil code met the element of reform as Weiss identified.
With regard to change in form, as examined in detailed earlier, the Ethiopian civil code repealed all prior rules previously in force and declared its supremacy. Civil law provisions found under religious laws, different imperial legislation, customary and indigenous laws were all excluded from having application concerning matters provided in the civil code. The move from numerous written and unwritten sources of regulation to one comprehensive code shows that the introduction of the civil code in Ethiopia has brought a change in form. This has obviously resulted in change in form as Weiss identified. However, as examined in the exclusivity element of the civil code, the provisions of the 1995 constitution revives civil law provisions in different forms.
The introduction of the Ethiopian civil code has brought a change in substance as well. To consider and examine how the civil code affects the substance of prior existing written laws requires an extensive study. In this article, however, I will only show certain examples on how the civil code changes at least the written laws. There are numerous recognized practices which were affected by the provisions of the civil code. Article 585 of the civil code, for example, declared that polygamy is not allowed in Ethiopia and favored the country to be monogamous. Before the promulgation of the civil code, however, polygamy marriage was not prohibited both in customary laws and Sharia law. Furthermore, according to the civil code a man and a woman may not get married unless they attain the age of eighteen and fifteen respectively while the Fetha Nagast allowed the man to marry at the completion of the twentieth or the twenty-fifth year depending on the social status and the female upon completion, similarly, of the twelfth or fifteenth year. All these provisions from Fetha Nagast including Family law, succession, donation, loan, pledge and administration, sale, partnership, lease and lesser were substantially altered by the civil code. Other parts of the code remain the original work of the expert (Rene David) with radical changes in substance for which the then-Ethiopian society was not ready. Such types of rules were either drawn independently to reflect Ethiopian values or were taken, where convenient, from some foreign law. For example, Rene David stated that the rules of contract are new to Ethiopian society. He stated that few rules concerning contracts that were found in Ethiopian law were imported or of recent fabrication, emanating from the legislature or from tribunals, without relation to true Ethiopian custom. Moreover, article 2067 could be mentioned among the provisions included in civil code to harmonize the code with the Ethiopian sense of justice. This article provides that a person shall be held liable where by his act he inflicts bodily harm on another ‘without fault’. Provisions regarding law of persons, public finance, extra contractual liability, guardianship, registers of civil status, registers of immovable property and unlawful enrichment were among the newly added subject matters which were not regulated in any of existing laws of Ethiopia. As explained by Weiss, the existence of a change in substance in the process of codification is inevitable and viewing the Ethiopian civil code in this regard would suffice to say that the criteria of substantive reform are met. As explained earlier in more detailed approach, the Ethiopian civil code has brought about a substantive reform revolutionary by replacing all existing laws.
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