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.
SIMPLICITY
Simplicity is the last core feature of continental European codification that Weiss has identified. While the element of a gap-less code was addressed to the judiciary, and the systematic element spoke to legal scholars, the element of simplicity is referred to the citizen. Simplicity does not refer only to the technicality of drafting laws.
Codification has often been the means of realizing unification within a particular country and Weiss identified national legal unification as a core feature of continental European codification. Codification often served to attain legal and political unity with previously heterogeneous legal sources. This was particularly true in the nineteenth century, when codification became linked to the emergence of modem nation-states.
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.
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
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
A principal-agent relationship is like a tripartite contract where the agent enters into any legal transaction on behalf of the principal. Art 2199 of the Civil Code defines agency as “a contract whereby a person, the agent, agrees with another person, the principal, to represent him and perform on his behalf one or several legally binding acts.” Such an authority can be conferred by court or by agreement of the parties.
If it is given by agreement of the parties, it can be either implied or express. The agent is expected to act in strictest good faith and diligently. He must avoid collusion with the third party to avoid conflict of interest. Art 2187(1) orders the cancellation of the agency contract if there is conflict of interest. The agent is accountable to the principal and must confine his/her acts with the scope of authority conferred. Art 2202(1) says that if the scope of the agency is not expressly known, it has to be fixed according to the nature of the transaction.
The scope of agency can be general (Art 2203 in conjunction with 2204) or special agency (Art 2205). An agent cannot sign bill of exchange, effect a settlement, invest capitals, alienate or mortgage real estate, make donations, bring/defend actions or sign arbitration agreement without special authority given to him/her.
For the services offered, the agent is entitled to contractual remuneration. Nevertheless, if remuneration is not stipulated in the contract, “the agent shall not be entitled to remuneration unless he carried out the agency within the scope of his professional duties or where such remuneration is customary” (Art 2220(1)).
Needless to emphasize, the relation between the agent and the third party is based on the original contract between the principal and the agent. The main theme of this essay is not to talk about the agent-third party relation, but the principal-agent contractual agreement. It is unlikely that the principal-agent agreement will be signed without remuneration. Consequently, if the principal and the agent disagree on any matter, they can resolve their dispute by court litigation or arbitration.
ስም ሰዎችን ለመለየት የምንጠቀምበት ሁነኛ ዘዴ ነው፡፡ ይህም አንድን ሰው ከሌላ ሰው ለመለየት ለሰዎቹ ስያሜ በመስጠት በቀላሉ መለየት ይቻላል፡፡ የአገራችን ሕገ መንግሥት በአንቀጽ 36 (1) (ለ) ስምን የመሰየም የሁሉም ህጻናት መብት ነው ሲል ያትታል፡፡ በተጨማሪም ICCPR አንቀጽ 24 (2) እንደሚደነግገው ሁሉም ህጻናት እንደተወለዱ ወዲያውኑ እንዲመዘገቡ እና ስም እንዲወጣላቸው ያዛል፡፡
ሕግና ኅብረተሰብ ጠንካራ ቁርኝት አላቸው፡፡ ኅብረተሰብ በሌለበት ሕግን ማሰብ፣ ሕግ በሌለበት በሥርዓት የሚኖር ኅብረተሰብን ማሰብ አስቸጋሪ ነው፡፡
ይህ ግንኙነት አንዳንድ ጊዜ በመቀዳደም ሊፈጸም ይችላል፡፡ ሕግ ኅብረተሰብን ዘመናዊ ለማድረግና ለመለወጥ እንደ መሳሪያነት ሊያገለግል ይችላል፡፡ በእንዲህ ዓይነት ጊዜ የሕጉ ዓላማ ኅብረተሰቡ ያልደረሰበትን ለውጥ ማስገኘት ነው፡፡ በተቃራኒው ከኅብረተሰቡ የሚወጡ እሴቶችና ባህሎችን ወደ ሕግ ደረጃ በማሳደግም የኅብረተሰቡን ሕልውና ማስቀጠል ይቻላል፡፡ እነዚህ የተሳሰሩ ግንኙነቶች ኅብረተሰቡ ከሕግ መጠቀም የሚቻልበትን ሁኔታ የሚያሰፋ ነው፡፡ ከዚህ ውጭ በሆነ መልኩ ሕጉ ከኅብረተሰቡ ዕድገት ወደ ጓላ ከቀረ ሕጉ ከወረቀት ያለፈ ተፈጻሚነት አይኖረውም፡፡ ይህን ችግር በአገራችን የተወሰኑ ሕግጋት እናስተውለዋለን፡፡
የፍትሐ ብሔር ሕጋችንን ጨምሮ አገራችን በአሁኑ ወቅት የምትጠቀምባቸው ሕግጋት በ1950ዎቹ ከውጭ አገሮች በተወሰነ ማሻሻያ የገቡ ናቸው፡፡ ሕግጋቱ በጊዜው ሲወጡ አፄው የነበራቸው ዓላማ አገሪቱን ዘመናዊ ሕግጋት ከሚከተሉ አገሮች ማመሳሰል ነው፡፡ አብዛኛዎቹ ሕግጋት ለአገሪቱ ባህል ሰፊ ቦታ አልሰጡም በሚል ትችት የሚቀርብባቸው ቢሆንም፣ አገሪቱን ላለፉት 50 ዓመታት በማስተዳደር ላይ ይገኛሉ፡፡ ከእነዚህ ድንጋጌዎች አብዛኛዎቹ አሁንም ድረስ የአገሪቱ ዜጎችን ማኅበራዊና ኢኮኖሚያዊ መስተጋብር ለመምራት በቂ ቢሆኑም የተወሰኑት ድንጋጌዎች ከኅብረተሰቡ ባህል፣ ወግና ዘመናዊ አስተሳሰብ ጋር የማይጣጣሙ ናቸው፡፡ ከእነዚህ ውስጥ ባለፉት አሥር ዓመታት የተሻሻሉ አሉ፡፡ በዚህ ረገድ የቤተሰብ ሕጉ፣ የወንጀል ሕጉ፣ የመሬት ሕግ፣ የማኅበራት ሕግ ወዘተ. በዘመናዊ አስተሳሰብ በመቃኘት እንዲሻሻሉ ተደርገዋል፡፡ እስካሁንም ድረስ ግን ያልተሸሻሉና ዘመን ሲለወጥ የማይለወጡ ድንጋጌዎች አሉ፡፡ እነዚህ ድንጋጌዎች ሕጉ ላይ ከመኖራቸው በቀር በኅብረተሰቡ የማይታወቁ፣ ሲገለጡ ባዕድ የሆኑ፣ በፍርድ ቤት መብት የማይጠየቅባቸው ናቸው፡፡ በዚህ ጽሑፍ የፍትሐ ብሔር ሕጉን የተወሰኑ ድንጋጌዎች ለማሳያነት በመጠቀም ድንጋጌዎቹ ያልተለወጡበትን ምክንያት፣ አለመለወጣቸው ያስከተለውን አንድምታና መፍትሔ ለመጠቆም ጥረት ይደረጋል፡፡
ያልተለወጡ ድንጋጌዎች ማሳያ