Analyzing the 'Systematic' core feature of Ethiopian Civil Code

SYSTEM

System is commonly regarded as the main characteristics of modern codification and Weiss has identified ‘system’ as a third core feature of continental European codification. The goal of capturing the substance of the law in the form of comprehensive and systematic code is one actively pursued in different countries. A code collects and regulates different fields of law into one organized system.

Codification is not meant to be a compilation of texts where many different sources of law were intermingled. Rather it is a ‘systematic presentation, synthetically and methodically organizing a body of general and permanent rules governing one or several specific fields of law in a given country’. The whole idea of a ‘system’ lies in the ‘overall structure’ of the code that corresponds to substantive law, the coherence, unity and interdependence of its dispositions, and exhibits the harmony of its component parts. It reflects to an organized whole made of diverse elements, instruments rules and institutions bound together by relations of logical solidarity. Weiss has explained that though having a systematic character seems to be a crucial element of codification, the degree of systematization that codification requires shows a fundamental difference in different countries. He clearly emphasizes on two points of fundamental difference: the degree of technicality and the object of systematization. The degree of technicality ranges from a mere alphabetical or numerical order to various rules under a dogmatic subject title. The object of systematization which is further distinguished as ‘inner’ and ‘outer’ system refers to legal concepts, concrete rules, or principles of law. According to Weiss, the way in which the code tries to structure and order its subject matter represents the "outer" system. A code may distinguish, for example, the law of property, law of succession, and the law of contract. It may further subdivide into subparts consisting more or less abstract legal concepts such as ‘Agency’ or ‘Sales’. The ‘inner’ system, on the other hand, represents principles within the code which are crucial for the process of adjudication and for doctrinal, judicial, and legislative development of the law. Thus, legal scholars can easily understand the classification and principles of the code. Given the modern examples of continental codes, codification is surely meant to be more than a mere index, an alphabetical or loosely subject-related order. It aims, at least, to present a clearly structured and consistent whole of legal rules and principles, promoting the internal coherence of the law, and providing a conceptual framework for further doctrinal, judicial, or legislative development.

Depending on the above brief description, a general analysis can be made about the system of Ethiopian civil code. The system of the Ethiopian civil code was greatly affected by the work of codification commission and a short description on the work of the commission will guide us to construe whether the Ethiopian civil code has a systematic code feature or not.

Rene David, professor of comparative law at the University of Paris, was asked to prepare the work of the commission charged with drafting a new civil code. The civil code was first established by a preparatory plan drawn up by the French expert with a French language which was later on translated to English and presented to the Ministry of Justice. The preparatory plan was then submitted to the codification commission which was composed of judges mainly from Ethiopia for further examination and critical study. Certain foreign experts residing in Ethiopia were also participated in limited sessions of the commission principally to hear objections made to certain texts of the preparatory plan and discuss possible problems arising with the commission. The reason for limited participation of foreign experts was because of the Amharic language. The commission had to formulate in Amharic language the definitions from French to the exclusion, whenever possible, of foreign words or phrases. 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. The Amharic language does not very often have words capable of giving 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. When a French word used by the expert in his draft text had no equivalent in Amharic, or when its equivalent might have led to a misunderstanding, the commission endeavored to find a Geezword which could translate it. The commission studied and examined each word in the preparatory plan with great attention by questioning the soundness of the proposed dispositions and by asking for explanations from the expert in case of uncertainty. By referring to various sources including the common law digest, international instrument, judicial precedent and learned studies, the commission decided on many hypotheses to modify the rule originally proposed. It was not within the expert (Rene David) to ascertain to what extent the French text have been faithfully rendered in the Amharic text of the code. The expert modified the preparatory plan to the extent only to the directions given by the commission and after a considerable work the codification commission finalized the civil code with both Amharic and English versions and submitted to Parliament. The civil code was finally promulgated having the Amharic language as the only authentic version which gives it the force of law and the English translation as being subsidiary.

Having a brief description on how the Ethiopian civil code was drafted, analysis can be now made about the system of Ethiopian civil code. With regard to the ‘outer’ system of the object of systematization, the civil code, after a very brief preliminary title on the law in general, was promulgated containing five successive Books dealing respectively with Persons, Family and Successions, Goods and Possession, Obligations, and Special Contracts. The different Books of the codes are divided into Titles, which themselves include Chapters, divided in turn into several Sections, which contain several paragraphs and a number of Articles. The provisions are stated in Articles numbered and listed in a logical order. The basic structure of the code follows the civilian approach in its rigorous classification of material into categories of decreasing generality, constantly proceeding from the general to the specific. Indeed, the system of Ethiopian civil code is thoroughly civilian in its approach and arrangement.

However, the formal presentation of the civil code shows a mere expression of its substantive coherence and the classification of the subject matters. The divisions made under the civil code did not correspond to clear and authentic distinctions. Rene David pointed out that questions concerning what matters are appropriate for regulation in a civil code do not call for particular remarks on matters concerning Ethiopia.

Firstly, the codification commission had no hesitation 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 law. Provisions concerning Registration of Civil Status (Title I Chapter 3), Registers of Immovable Property (Title X), Collective Exploitation of Property (Title IX) and Administrative Contracts (Title XIX) are among the branches of law that were included in the civil code. For example, these four branches of law are considered and regulated separately and they are not included in the French civil code. Moreover, Rene David did not include them in the first preparatory plan. Provisions of registration of civil status, for instance, were included in the civil code by the codification commission with further condition. Article 3361(1) of the civil code declares that the provisions regulating registration of civil status shall not come into force until notified by Order published in Negarit Gazeta. This has affected the logical coherence of the civil code. For one thing, it presupposes the enactment of further law outside the code which is unusual for codification and for another thing, it includes the subject matter under the law of persons which is unrelated. Furthermore, there was no separate Order published in Negarit Gazeta and the provisions were there for 52 years without regulating any activity. It was this year that the government enacted a new law concerning civil Registration and National ID separately by repealing provisions of civil status from Article 48 – 183 of the civil code. The new law is neither a notification as article 3361(1) of the civil code requires nor an addition/replacement of the provisions of the civil code. This is one indication that this subject matter should have not been included in the civil code in the first place. Moreover, recent social and economic progress at the national and global level led to the unavoidable consequence of enacting a large and growing number of specific pieces of legislation. The new legislative enactments derived from civil code subjects including: the Federal Family Code, the Warehouse Receipts system Proclamation, the Labour Proclamation, and the Condominium Proclamation were enacted and regulated separately by repealing the provisions of the civil code. Unlike continental European countries which expand, add, substitute new provisions without shattering the codes general principle, these laws in Ethiopia are enacted and regulated separately and they are not intact with the principles of the civil code. The French civil code, for example, has been completely reformed by the substitution of new articles for old ones. The old articles on corporations (articles 1832-1873) were replaced and multiplied by adding indices to the numbers (articles 1843, 1843-1, 1843-2). In instances where the repeal of certain texts created available space; certain titles, chapters or sections were thoroughly reorganized on the occasion of the reforms (Act of July 11, 1975 on divorce and articles 229-310 of the civil code for example: Title 6 of Book I). The use of such methods shows that the updating and adaptation of the civil code, even by way of great scale reforms, is quite possible without disrupting the code’s principle. However, the Ethiopian civil code was seriously affected by separate new legislation which have no longer intact with the principles of the code. Provisions of the civil code including Public Finance, Business Registration, Land Lease and Intellectual Property are among the civil code subject areas that are repealed and replaced by separate new legislation which obviously affects the unity and coherence of the code. Evidently, this process affects and disrupts the code’s harmony, coherence and fundamental logic.

Secondly, there was no concern to exclude certain matters from the civil code; provisions relating to nationality and conflict of laws were entirely left out from the civil code for unknown reasons. Numerous and important transitory provisions which leads the experts to regret were also excluded from the civil code. These provisions were included in the preparatory plan of the civil code and there is no logical explanation why these provisions were left out by the codification commission.

One can imagine easily how the structure and logical coherence of the civil code may be affected when the codification commission adds different subject matters and excludes certain important matters from the civil code. The Ethiopian civil code is one of the longest contemporary civil codes with 3367 articles. This is because apart from the reasons explained above, the codification commission wanted the civil code to be a complete legal source as much as possible. When Rene David explained the reason as to why Ethiopian civil code has become the longest civil code he stated: the codification commission was preoccupied 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. However, the conception of the codification commission by itself was contradictory with continental European codification conception where it is believed that a code should not attempt to provide rules that are immediately applicable to every conceivable concrete case. Thus, certain subjects such as Bodies Corporate and Property with a Specific Destination (Title III), Literary and Artistic Ownership (Title XI), Medical or Hospital Contracts, Contracts of Innkeepers, and Publishing contracts (Title XVI, Chapter 5, 6 and 7), 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 and considerably more extensive than those of other civil codes. There are 151 articles (as opposed to five in the French Civil Code and seventeen in the Italian). As a result, when the structure and division of the civil code is considered in comparison with the others, one might observe that the division was certainly not the best that one could find.

With regard to the ‘inner system’ of the object of systematization that Weiss has identified, the Ethiopian civil code does not seem to have given enough consideration to the inner system of the object of systematization as well. The reason for such failure is connected with the language in which the civil code is written. As noted above, the inner system of a code represents how a code provides a conceptual framework for further doctrinal, judicial, and legislative development of the law. Amharic language, however, became a barrier for the inner system of the Ethiopian civil code and for legal scholars. Even if the commission was aware of the importance of language and expressed the law in a clear and concise Amharic, the commission did not seem to have been aware of the major problems facing the inner system of the civil code. The civil code is full of concepts, meanings and institutions which have their root source in French tradition. A fuller understanding of a substantial portion of the law requires going back to the primary source and without these sources the civil code may not be fully understood. However, legal scholars in Ethiopia can no longer access these sources of law since they neither spoke nor understood French. Moreover, those who can read French find very few legal French books in the university, and commentaries in Amharic or in English dealing with French law are rare. The availability of internet, which could direct to some French sources, is very limited to legal scholars. As noted above, the Ethiopian civil code was promulgated giving the Amharic language a force of law and the English translation as being subsidiary. Although the work of the civil code was mainly inspired by the French legal principles and judicial practices and the work of the codification commission is based on the French preparatory plan, there was no room left for original French text. Rene David was aware of the language difficulties and proposed the inclusion of a concordance of articles containing references to the foreign laws that had inspired the different parts of the code. He particularly wanted the inclusion of a concordance of articles to be placed at the end of the code with the intention of helping legal scholars in the interpretation of the code. His idea, however, was considered and dropped believing references to foreign laws might cause only confusion in interpreting the code. As a result, the law was cut off from its roots and the civil code became like a fish out of water. Codification was the fulfillment of a development in continental Europe that had stretched over many previous centuries. But with respect to this evolution the civil code of Ethiopia was an orphan –it was an off-shoot of the same general tradition and yet cut off from it, both in time and in space. Law students used to take a compulsory legal French course at Addis Ababa University in the early ages of the civil code. This is because French language was considered as a useful tool to enhance and develop the Ethiopian legal system. However, through time French language disappeared from the law schools and legal system of Ethiopia. Currently the only foreign language that legal scholars can understand is English and the medium of communication in law schools is conducted through English. Unlike African countries, which tie their legal system to wide linguistics group like French and English and can easily refer to that system in a language they understand and practice, the civil code is not affiliated with any other legal ‘family’ and is juridically ‘orphaned’ as it were. Thus, the Ethiopian civil code was denied any continuing nourishment. As a result, the development of doctrinal, judicial and legislative framework has been severely undermined and hence, the inner system of the civil code ceases to be fully intelligible. This hinders the evolution of the law, causing its stagnation, and constituting an obstacle to its progress.

Finally, in terms of the degree of technicality, the Ethiopian civil code along with other major codes is the only code with a table of contents. Table of contents does not form part of Ethiopian drafting style except for headings given in the course of the text of the Act. The table of contents uniquely provides a list of contents and outlines the substantive coherence of the civil code.