Introduction To Law And The Ethiopian Legal System
Introduction to Law and theEthiopian Legal SystemTeaching MaterialPrepared by:Tesfaye AbateAlpha University CollegePrepared under the Sponsorship of the Justice and Legal SystemResearch Institute2009
TABLE OF CONTENTSCourse ----------------------------1UNIT ONE: NATURE AND FUNCTIONS OF LAW------------------------------------21.1. Definition of Law ------ ------------31.2. Basic Features of Law ----------------51.3. Major Theories -----------------------------------------101.3.1 Nature law Theory --------- 111.3.2 Positive Law ------------- 121.3.3 Marxist Law Theory ------- 131.3.4 Realist Theory of Law ----- 131.4. Functions of Law --------------------141.5. Relationship between Law and State -------------------------------------------- 171.6. Legal Norms and Non-legal Norms ---------------------------------------------- 191.7. Major Legal Systems in the ------251.7.1. Legal System ------------ 251.7.2. The Anglo-American Legal System (Common Law) -------------------261.7.3. The Civil Law Legal System .7.4. Common Law and Civil Law Legal Systems Compared----------------28UNIT TWO: SOURCES OF --- 372.1. Meaning of the term Source ---- 372.2. Material Sources of Law --------- 392.2.1. Custom as Source of Law -------------------------------------------------- 39i
2.2.2. Religion as Source of Law ------------------------------------------------- 472.2.3. The Federal Constitution as Source of Ethiopian Laws ----------------- 492.2.4. Legislation as Sources of Law -------------------------------------------- 532.2.5 Court Decisions As Source of Law ----------------------------------------- 562.3 Formal Sources of Law --------------- 632.3.1 Concept of Formal Sources ----- 632.3.2 Elements of Formal sources ---- 63UNIT THREE: CLASSIFICATION OF LAWS ------------------------------------------ 703.1 Public and Private Law ---------------- 713.2 International and National Law ------ 723.3. Substantive and Procedural Law ----- 753.4 Civil and Criminal Law ---------------- 76UNIT FOUR: THE MAKING and REPEALS OF LAWS ------------------------------ 814.1. The Making of Laws ------------------ 824.1.1. Steps in Law Making ---------- 824.1.2. Comparative Study of Law Making Process --------------------------------------874.1.2.1. Haile Selassie’s ERA -- 884.1.2.2. The Derg’s ERA ------ 914.1.2.3. Under the PDRE -------- 924.1.2.4. Law Making in the Present Day of Ethiopia-------------------------- 944.2. Repeal of Laws ----------------------- 98ii
4.2.1 General Concepts ------------- 984.2.2.Types of Repeals ----------- 1004.2.2.1. Express Repeal --- 1004.2.2.2. Implied or Tacit Repeal ------------------------------------------- 1024.2.3. Effects of Repeal ------------ 1044.2.4. Expiry of Laws ------------- 1054.2.4.1. Consequences of expiry --------------------------------------------- 1064.2.4.2. Repeal by a temporary statute ------------------------------------- 1074.3. Nullification of Laws -------------- 108UNIT FIVE: HIERARCHY OF ------ 1145.1 Hierarchy of laws under the Unitary form of Ethiopia ----------------------------- 1155.1.1 Hierarchy of laws under the Revised Constitution of 1955and the PDRE Constitution of 1987 -------------------------------------------- 1155.1.2 Hierarchy of laws under the PDRE Constitution of 1987 ------------------- 1185.2. The Hierarchy of Laws with in the Present Legal Structure of Ethiopia ---------- 1225.2.1 The Supremacy of the FDRE Constitution ------------------------------ 1235.2.2 The Status of International Treaties Vis-à-vis other Domestic Laws - 1255.2.3 Federal Legislation and Their Hierarchy -------------------------------- 1275.2.4 State Laws and Their Hierarchy ------------------------------------------ 129UNIT SIX: INTERPRETATION OF LAWS --------------------------------------------- 1356.1 General ----------------------- 1366.2 Types of Interpretation ------ 1386.2.1. Types of interpretation in .2. Interpretation of Statutes ---------------------------------------------- 1416.3. Constitutional Interpretation ---- 1466.4. Rules/Techniques of Statutory Interpretation ----------------------------------- 149iii
6.4.1. Rules of Interpretation in 496.4.2. Rules of Interpretation in 154UNIT SEVEN: JURIDICAL ACTS - 1697.1. Definition and Importance of Juridical Acts ------------------------------------- 1697.2. General Theory and Classification of Juridical Acts ---------------------------- 1717.3. Rules Common to All Types of Juridical Acts --------------------------------- 1767.4. Relative Effect of Juridical Acts -------------------------------------------------- 1867.5 Rights and Duties ----------------- 188II) ETHIOPIAN LEGAL --------------197UNIT EIGHT: LEGAL FRAMEWORK IN ETHIOPIA ------------------------------ 1978.1 General Survey of Common Features in African Legal Tradition:Ethiopia in Focus -----------------1988.1.1. General --------------------- 1988.1.2. Legal Pluralism ----------- 2018.1.3 Legal Transplantation From Foreign Sources ---------------------------- 2068.2. A General Overview of Laws and Practices in Ethiopia ----------------------- 2098.2.1. The 1995 Constitution of the Federal Democratic Republic of Ethiopia2098.2.2. The Federal Laws and regional Laws and Practices ---------------------- 2098.2.3. Conflict between Federal Laws and Regional Laws ---------------------- 2128.2.4. Official Norms and un Official Norms ------------------------------------- 216UNIT NINE: INSTITUTIONAL FRAMEWORK IN ETHIOPIA ------------------- 2219.1. Federal Institutions and their Responsibilities -------------------------------------- 221iv
9.1.1. The Federal Legislature ---- 2219.1.2. Federal Judicial Organs ----- 2249.1.3. The Executive Organ -------- 2279.2. State Institutions ---------------------- 2339.2.1 State Councils ---------------- 2339.2.2 State Courts ------------------- 2279.2.3 Regional Justice Bureaus ---- 2349.2.4 State Police Commissions --- 2349.2.5 State Prisons Administrations ------------------------------------------------ 2359.3. Conflict of Powers of the Federal State and the Regions --------------------------- 2359.4. Administration of Justice in Ethiopia ------------------------------------------------- 236UNIT TEN: TRADITIONAL CO-EXISTENT MECHANISMSOF DISPUTE RESOLUTION IN ETHIOPIA ----------------------------- 24210.1 Some Preliminary Remarks about Alternative Dispute Resolution(ADR) in --------------- 24210.1.1 Definition and Nature of ADR ------------------------------------------- 24210.1.2 Types of ADR Methods: An Overview ---------------------------------- 24410.2. Modes and Nature of Traditional /Customary/ Mechanisms of DisputeSettlement in Ethiopia ------------- 24710.3 Conflict between Formal and Traditional Mechanisms ------------------------- 252Review Questions ---------------------------------263v
PREFACEThis material was first prepared and the panel of assessors have gone through it several times.The members of panels of assessors have contributed constructive ideas to the material. Thus, thewriter is indebted toAto Abdulmelik Abubeker;Ato Tsegaye Regassa;Ato Hagos WolduAto Woldemichael Messebo;The writer is privileged to get important ideas from the instructors and students of the course onthe workshop held in August 2008. The writer wants to express his indebtedness from the withinhis heart for their contribution. The first task made according to the comments of the instructorsis related to its bulkiness: accordingly, the material is reduced to some 256 pages from 345. Inthe course of revising the material,the concept of legal pluralism is more elaborated;the units on sources of law, and interpretation of law are made short to the extent possible;the unit on juridical acts is made simple;the unit on alternative dispute resolution is very much summarized;the contents are reflected on the outline of the course;practical court cases are included;some additional materials are included and the material is updated.With regard to the nature of the material, the writer has tried to make it more original than thefirst one. What is more, varieties of questions are included in the material. In general the materialis upgraded and simplified. Finally the writer extends his thanks to the Justice and Legal researchInstitute with out it such a task could not be made.Tesfaye Abate AbebeAddis Ababa, October 9, 2008vi
ABBREVIATIONS USEDUNDHR- United Nations Declarations of Human RightsFDRE Const- the Federal Democratic Republic of Ethiopia, ConstitutionCiv. C. – Civil CodeArt.- ArticleProc. No.- Proclamation NumberJOL-Journal of Ethiopian LawsRFC-Revised Family CodeCri. Pro. C.- Criminal Procedure CodeECSC- Ethiopian Civil Service CollegeUSAID -United States Agency for International DevelopmentICCPR-International Covenant on Civil and Political Rightsvii
Materials on Introduction to Law & Ethiopian Legal SystemTesfaye Abate, Oct, 08COURSE INTRODUCTIONThis course mainly focuses on the nature of law and the Ethiopian legal systems. Thus,basic features of law, sources of law in general and the sources of Ethiopian law arecovered. The making and repeal of laws will also be dealt with under this course. Inaddition, hierarchy of laws and classification of laws will be covered by the course. Mostimportant, the student shall be introduced to the modern legal systems of the world.Further, the student will begin to learn how to interpret written laws, an essential legalskill of lawyers.The course will also focus on the Ethiopian legal systems. In addition, the Ethiopian legaltraditions are included in the course. Further, the course will explore some traditionalmechanisms of Dispute Resolution in Ethiopia.COURSE OBJECTIVESAfter the completion of this course, the student will be able to:explain the nature of law;describe the distinction between legal norms and non-legal norms;evaluate the significance of material sources of Ethiopian laws;compose ideas on formal sources of our laws;identify methods of classification of laws along with the criteria based on whichlaws are classified;compare and contrast law making process in Ethiopia;categorize laws in their hierarchical order;state the process of making of laws in Ethiopia;interpret Ethiopian laws based on rules of interpretation;identify the technique of repealing laws in Ethiopia;explain the common rules applicable to all juridical acts;state the features of traditional dispute resolution mechanisms in Ethiopia; andapply the rules and principle of law in practice.1
Materials on Introduction to Law & Ethiopian Legal SystemTesfaye Abate, Oct, 08TEACHING METHODSIn order to deliver the course, a combination of lectures, discussions, and group workswill be used. Personal and group reflections will also be required from students.Moreover, students will be encouraged to comment upon real and/or hypothetical casesas may be found necessary. Small papers and/or essays will also be expected of studentsin order that they will have the opportunity to read and gain an understanding of theconcepts that the course exposes them to. It is to be noted that these methods will beadapted to the needs, learning styles, potentials of students with disabilities and/or specialneeds.MODE OF ASSESSMENTIn order to assess the performance of the students, diverse methods that can ensurecontinuous assessment may be utilized. Tests, assignments, presentations, papers/essays,and /or exams will be used to this effect.PART I: INTRODUCTION TO LAWUNIT ONE: NATURE AND FUNCTION OF LAWUNIT OBJECTIVESAfter completing this unit, the student will be able to:define law;explain basic feature of law;analyze theories of law;identify the purposes of law;state the relation between law and state;Distinguish between legal norms and non-legal norms.2
Materials on Introduction to Law & Ethiopian Legal SystemTesfaye Abate, Oct, 08UNIT OBJECTIVESAfter completing this Unit, you will be able to:define the main legal systems of the world;discuss the criterion to classify laws into common law and civil law legal system;explain the general characteristics of common law and civil law legal systems;andcompare and contrast the merits and demerits of these legal systems.UNIT INTRODUCTIONIn order to achieve the above-mentioned objectives, we will consider definitions given tothe term ‘law’. Next, we shall discuss the basic features of law. There are differenttheories with regard to the concept of law. Considering those theories would help us tounderstand the concept of law. Thus, we will be considering these theories. Law is notwithout function; it is promulgated to perform certain purposes. The fourth part of theunit is covering this issue as well.Law and state have relationships. What are the relationships between these two, i.e. thelaw and the state? The fifth part of this unit is devoted to consider this point. Further, wewill be treating the difference between legal norms and non-legal norms. Then, we willsummarize our discussion by pointing out main ideas. What is more, questions are givenat the last part of the unit to help you to check your progress in learning the unit.Lastly, references are given to facilitate your further readings on the unit.1.1.DEFINITION OF LAWWhat is Law? Can you guess what essential points should be taken into account to definelaw?Jurists have defined law differently from different point of views. It has been calledDhama in Hindu jurisprudence and “Hukum” in Islamic system. Romans called it jus and3
Materials on Introduction to Law & Ethiopian Legal SystemTesfaye Abate, Oct, 08in Germany and France, it is called as Recht and Droit respectively [N.V. PARANJAPE;2001: 133].Defining the term ‘law’ is not an easy task because the term changes from time to timeand different scholars define the term variously. Definition of the term may vary due tothe different types of purposes sought to be achieved. Definitions given to the term laware as many as legal theories.According to Black’s Law Dictionary [Garner; 2004: 900] law consists of rules of actionor conduct. These rules are issued by an authority. In addition, these rules have bindingforce and are obeyed and followed by citizens. Sanction or other legal consequence mayhelp the law to be abided by citizens.From the pragmatic point of view, American jurist, Benjanin Nation Cordazo defines lawas “a principle or rule of conduct so established as to justify a production with reasonablecertainty that it will be enforced by the courts if its authority is challenged.” [Steven;2003: 8]. According to Holmes “the prophecies of what the courts will do in fact, andnothing more pretentious, are what I mean by the law”. It is observable from thesedefinitions that courts play great role in applying as well as creating the law.From the sociological perspective, Max Weber suggests that an order will be called law ifit is externally guaranteed by the probability that coercion (physical or psychological), tobring about conformity or avenge violation will be applied by a staff of people holdingthemselves especially ready for that purpose [Steven; 2003: 8].He argues that law has three features that distinguish it from other normative orders suchas custom or convention [[Steven; 2003: 9]:a) There must be a pressure that comes from external in the form of actions orthreats of action by others regardless of the person wants to boy the law or not;b) These external actions or threats of action always involve coercion or force;c) Individuals whose official role is to enforce the law must enforce the coerciveaction.4
Materials on Introduction to Law & Ethiopian Legal SystemTesfaye Abate, Oct, 08He refers to state particularly when he talks about officials who enforce the law becausethey are state officials who are empowered to do that.In general, law may be described in terms of legal order tacitly or formally accepted bythe society and enforced. A body of binding rules sufficient compliance of them isensured by some mechanism accepted by community is called law [Paton; 1967].1.2.BASIC FEATURES OF LAW[Biset Beyene, Introductory Note on Law in general, 2006, Unpublished, AlphaUniversity College, Pp. 1ff]Analysing the features and nature common to all laws would help us to understand theconcept of law. Among these features and natures, the ones considered as essentialinclude generality, normativity and sanction.I) GENERALITYLaw is a general rule of human conduct. It does not specify the names of specific personsor behaviours. Hence, its generality is both in terms of the individuals governed and interms of the social behaviour controlled.The extent of its generality depends on-on whom the law is made to be applicable.Consider the following illustrations.1. “Every one has the right to life, liberty and the security of a person.” [Art 3,UNDHR; 1948].- This law is made to be applicable to every person on this world. Therefore, it isuniversal.2. “Every person has the inviolable and in
The course will also focus on the Ethiopian legal systems. In addition, the Ethiopian legal traditions are included in the course. Further, the course will explore some traditional mechanisms of Dispute Resolution in Ethiopia. COURSE OBJECTIVES After the completion of this course, the student will be able to: explain the nature of law;
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