Prioritizing Draft Proposals - A comparative analysis between Ethiopia and Northern Ireland

Modernization relies on law as the means of transformation. In these great processes of transformation, day after day, many more demands for new legislation have been proposed as a reaction to different social, political, economic and environmental situations which seemingly develop independently or deliberately. Governments need effective laws to govern these processes of transformation, by which they achieve their political objectives and public policies. Such need may originate from different sources such as different ministries, a commission of inquiry, politicians, pressure groups, or sometimes from donors. At any moment in time, the government may face with various such drafting proposals on which it has preferences, but cannot attend all of them for lack of enough resources for drafting, enacting and implementing them all. For this reason, the need to make the order in which to draft, i.e. Prioritize with explicit criteria, becomes more and more imperative. Even though the subject of prioritization of drafting proposals is among the subject that have received little attention in legislative drafting, Seidman, Seidman and Abeyesekere have come up with the importance of prioritization and prioritization criteria. Seidman et al have identified four criteria for prioritization of drafting proposals: (1) the gravity of the social problem being addressed; (2) the legislation's anticipated social impact; (3) its do-ability; and (4) the available drafting resources and claim that without these explicit criteria or procedures the resulting prioritization decisions frequently appear haphazard.

 

In this essay, however, as a center of my hypothesis I will argue that prioritizing drafting proposals is dependent on the full discretion of the highest executive organ and hence, the Seidman et al prioritization criteria do not fit for international application. In order to prove my hypothesis I am going to look at the four criteria of prioritization of drafting proposals put forward by Seidman et al and make a comparative analysis between Ethiopia and Northern Ireland. By exploring the institution for prioritization of drafting proposals, I will particularly examine whether the Seidman et al criteria of prioritization are applicable or not in both jurisdictions. In doing so, the essay is divided into three sections. Section I explores prioritization of drafting proposals and argues prioritization of drafting proposals is dependent on the final decision of the highest executive. Section II first analyzes the two countries institution for prioritization. It then continues in describing the four criteria of Seidman et al into two folds followed by comparison and analysis of the criteria in both jurisdictions. Section III concludes.

 

I.     Prioritizing draft proposals

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Analyzing the 'Authority' core feature of Ethiopian Civil Code

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:

(1)   Authority

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Analyzing the 'Completeness' core feature of Ethiopian Civil Code

COMPLETENESS

A historical and comparative study of continental European codification reveals that codification aims at being complete. Although ‘completeness’ has several implications in different literature Weiss has identified three sub-elements of completeness in the sense of an (a) exclusive, gap-less and comprehensive as the second core feature of continental European codification. In this article each of these elements will be briefly discussed followed by the analysis of the Ethiopian civil code. 

 

1.      EXCLUSIVENESS

 

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