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Published online by Cambridge University Press: 28 July 2009
A nation's legal institutions must be established and maintained with a view not only toward administrative convenience, but also in accordance with the deep-rooted traditions of the people. Legal institutions superimposed upon a people without regard to their traditions and needs will never have the confidence of the people. Because of Ethiopia's status as an independent nation it has been possible for its legal institutions to be established and developed in accordance with the needs and desires of the Ethiopian people. A rich legal tradition, distinctly Ethiopian in character, has emerged. Ethiopia does not have the common law tradition, which was imposed upon nations of Africa that formerly were British colonies; it does not have that kind of civil law tradition that was imposed upon nations of Africa that formerly were colonies of continental states. The significance of law in Ethiopia and the importance of justice to the Ethiopian people have long been recognized by many scholars.1
1 See the discussion and summarization of the views of other authors in Perham, The Government of Ethiopia (1948), 143–144. As one author put it, the Ethiopians regarded injustice as the worst of enemies. Abbadie, Douze ans dans la Haute-Ethiopie (1868), 103.
2 Perham op. cit., p. 145. Our use of the term “justice” is not in the meta physical sense. Rather it means the adjudication of disputes and the granting of relief to one who has been wronged.
3 The present Emperor promulgated and granted a constitution in 1931, shortly after his accession to the throne. A revised constitution was promulgated and granted in 1955.
4 Proclamation No. 2 of 1942, Negarit Gazeta, 30th March, 1942.
5 Thus far they include the Penal Code, the Civil Code, the Commercial Code, the Maritime Code, and the Code of Criminal Procedure. A Code of Civil Procedure is in the process of being drafted.
6 Perham, op. cit., 145.
7 Alvarez, , The Prester John of the Indies, (ed. Beckingham, & Huntingford, , 1961), 128.Google Scholar
8 This is not an Ethiopian word. See the discussion of its origin in Alvarez, op. cit., 94.
9 Ibid., 128.
10 Ibid.58:112, at 439–440.
11 Bruce, Travels to Discover the Source of the Nile (1790), vol. 3, 265.
12 Castro, De, Nella Terra Dei Negus (1915), vol. 2, 131–132.Google Scholar
13 See the discussion in Perham, op. cit, 145–147.
14 Hambo, The Rebellion Trials in Ethiopia (1961), 12 Bulletin of International Commission of Jurists 29, 30.
15 Under Article 26 of the Revised Constitution of Ethiopia it is provided as follows: “The sovereignty of the Empire is vested in the Emperor and the supreme authority over all the affairs of the Empire is exercised by Him as the Head of State, in the manner provided for in the present Constitution”.
16 See the discussion in Dicey, The Law of the Constitution (10th edn. 1961), 39–41.
17 The Crown means the monarch acting in public capacity. In effect it means the executive or the central government. Phillips, Constitutional and Administrative Law (3rd edn. 1962), 244–245.
18 See the discussion in Phillips, op. cit., 255. By the same token the courts of Ethiopia administer justice in the name of the Emperor. Revised Constitution of Ethiopia, article 108.
19 Potter, , Historical Introduction to English Law, 18 (ed. Kiralfy, , 1958). These were courts established by large landowners. These courts heard cases involving tenants of the lord's land. They adjudicated disputes according to local custom.Google Scholar
20 Phillips, op. cit., 254. Blackstone defines this responsibility of the King as follows:
“By the fountain of justice the law does not mean the author or original, but only the distributor. Justice is not derived from the King, as from his free gift; but he is the steward of the public, to dispense to whom it is due. He is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand channels, to every individual.”
Blackstone, , Commentaries on the Laws of England, vol. 1, 266, quoted in Phillips, op. cit.Google Scholar
page 62 note 1 Under article 35 of the Revised Constitution of Ethiopia the Emperor has the right and duty to maintain justice through the courts. If the establishment of courts were not otherwise provided for in Chapter VI, this article would give the Emperor the power to establish them.
page 62 note 2 Potter, op. cit., 105–106; Pollock and Maitland (1895), History of English Law, 17.
page 62 note 3 Potter, op. cit., 105.
page 62 note 4 See the discussion in Potter, op. cit., 130–130.
page 62 note 5 Ibid., at 106–109.
page 62 note 6 Pollock and Maitland, supra, 12.
page 62 note 7 Potter, op. cit., 140
page 62 note 8 Ibid.
page 63 note 9 McClintock, Equity (2nd edn. 1948), 6.
page 63 note 10 Ibid., at p. 7.
page 63 note 11 See generally as to the development of the Chancery Court, Potter, op. tit., 152–160, and Spence, “The History of the Court of Chancery”, Select essays in Anglo-American legal history (1908), 226–229.
page 63 note 12 See the discussion of the sources of English equity in McClintock, op. cit., 6.
page 63 note 13 Ibid., at pp. 13–16.
page 63 note 14 Ibid., at p. 2.
page 63 note 15 Phillips, op. cit., 276; Spence, op. cit., 226–229.
page 64 note 16 The Star Chamber is perhaps most notorious for its abuses and the unfair procedure it employed. In its earlier period, however, it was intended to and did exercise the King's prerogative to see that justice was done.
page 64 note 17 Phillips, op. cit., 276.
page 64 note 18 See the discussion of this jurisdiction, mostly appeals from colonial and dominion courts, in Phillips, op. cit., 278–279.
page 64 note 19 Spence, op. cit., 241. The author notes that in France during the time of Charlemagne the court of the palace was specifically charged to take care of the interests of the poor.
page 64 note 20 See p. 61, n. 16, supra, and accompanying text.
page 64 note 1 Revised Constitution of Ethiopia, article 26.
page 64 note 2 See, however, the discussion, p. 61, n. 17, and p. 62, n. 18, supra, and accompanying text.
page 65 note 3 The Emperor is given this power under article 35 of the Revised Constitution of Ethiopia. The President is given this power under article 2, s. 2 of the Constitution of the United States. In England the Home Secretary exercises this power on behalf of the Crown: Phillips, op. cit., 256.
page 65 note 4 United States v. Grossman (1925), 267 U.S. 87.
page 65 note 5 In the Preface to the Civil Code of Ethiopia His Imperial Majesty has observed as follows: “The Civil Code has been promulgated by Us at a time when the progress achieved by Ethiopia requires the modernization of the legal framework of Our Empire's social structure so as to keep pace with the changing circumstances of this world of today.”
page 65 note 6 As His Imperial Majesty pointed out in the Preface to the Civil Code: “It is essential that the law be clear and intelligible to each and every citizen of our Empire, so that he may without difficulty ascertain what are his rights and duties in the ordinary course of life, and this has been accomplished in the Civil Code.”
page 65 note 7 Revised Constitution of Ethiopia, article 110.
page 65 note 8 It is a well-recognized principle of code interpretation that where the text of a law is clear, the judges cannot avoid its letter under the pretext of respecting its spirit: Planiol, Traité Eléementaire de droit civil, No. 217 (12th edn. 1939).
page 66 note 9 Proclamation No. 2 of 1942, Negarit Gazeta, 30th March, 1942.
page 67 note 10 This follows the pattern of the Constitution of the United States. Article III, s. 2, provides only for the Supreme Court. Congress is authorized to create inferior courts and may establish and abolish them and their jurisdiction as it sees fit. See the discussion of this point in Sheldon v. Sill (1850), 8 Howard 440.
page 67 note 11 Proclamation No. 2 of 1942, Negarit Gazeta, 30th March, 1942.
page 67 note 12 Negarit Gazeta, Extraordinary Issue No. 1 of 1961, 2nd November, 1961.
page 67 note 13 Proclamation No. 195 of 1962, Negarit Gazeta, 31st December, 1962. This proclamation has been suspended. Proclamation No. 203 of 1963, Negarit Gazeta, 12th July, 1963.
page 67 note 14 See the discussion, p. 60, ante.
page 67 note 15 Revised Constitution of Ethiopia, article 26.
page 68 note 16 Phillips, op. cit, 257–259.
page 68 note 17 Revised Constitution of Ethiopia, articles 108, 110.
page 68 note 18 In the case of Prohibitions del Roy (1607), 12 Co. Rep. 63, 64, this issue was resolved. The King could be present in court, but could not give an opinion.
page 69 note 19 See Chicago & Southern Air Lines v. Waterman S.S. Corp. (1948), 333 U.S. 103. Because the decision in that particular case would have been subject to review by the executive, the Supreme Court held that it would not be performing a judicial function if it heard the case and so refused to hear it.
page 69 note 20 See the discussion in United States v. Grossman, p. 65, n. 4, ante.
page 70 note 1 Revised Constitution of Ethiopia, article 35.
page 70 note 2 Ibid., article 63.
page 70 note 3 Note again the distinction between an appeal as of right and a petition for review in chilot, as set forth in the Criminal Procedure Code and the proposed Courts Proclamation. See the discussion, p. 67, n. 13, ante, and accompanying text.
page 70 note 4 The word is meant as synonymous with discretionary. Phillips, op. cit., 243.
page 70 note 5 Dicey, op. cit., 424. This definition was approved by the House of Lords, the highest judicial tribunal, in Attorney-General v. De Keyset's Royal Hotel Ltd., [1920] A.C. 508, at p. 526.
page 70 note 6 The law relating to appellate jurisdiction is found in the Administration of Justice Proclamation of 1942, p. 59, n. 4, ante.
page 70 note 7 Administration of Justice Proclamation, s. 10.
page 70 note 8 Criminal Procedure Code of 1961, p. 67, n. 12, ante, article 183.
page 70 note 9 Revised Constitution of Ethiopia, article 35.
page 71 note 10 Page 64, above.
page 71 note 11 Civil Code of Ethiopia, article 708.
page 71 note 12 Ibid., article 709 (3).
page 71 note 13 Ibid., article 721 (1).
page 71 note 14 Where an irregular union existed, which was terminated by the man, the court may in its discretion order the payment of maintenance for a period not to exceed 6 months: Civil Code of Ethiopia, article 717 (2).
page 71 note 15 See my discussion of this point in an article, “Conditional, experimental and substitutional relief”, (1962) 16 Rutgers Law Review 639, at pp. 711–715.
page 74 note 16 Under s. 3 and s. 10 of the Administration of Justice Proclamation of 1942 the Supreme Imperial Court may only hear appeals from the High Court when the High Court sits as a court of first instance. Under article 17 an appeal from the provincial (Taklay Gizat) court lies to the High Court, and the decision of the High Court on that appeal is to be final.
page 74 note 17 It is reported that in practice when the High Court has disagreed with the Taklay Cizat Court, the Supreme Imperial Court is often ordered to hear the appeal.
page 74 note 18 This would refer to the courts provided for in Chapter VI, since these are the only courts that the Constitution recognizes.
page 74 note 19 Revised Constitution of Ethiopia, article 36. For a discussion of the breadth of power under a “necessary and proper” clause, see McCullough v. Maryland (1819), 4 Wheaton 316.
page 74 note 20 See the discussion, p. 64, ante.
page 74 note 1 Revised Constitution of Ethiopia, article 110.
page 75 note 2 The law is contained in the decisions of the appellate courts and the statutes enacted by the legislature. Closely related to the doctrine of binding precedent is that of stare decisis, by which appellate courts are bound by their earlier decisions on points of law. American courts possess the power to over-rule earlier decisions, but this power is exercised only rarely.
page 75 note 3 Proclamation No. 195 of 1962, s. 15, Negarit Gazeta, 31st December, 1962.
page 75 note 4 See the discussion of this point in David and de Vries, The French Legal System (1958), 116–117.
