Modernization of Law in Ethiopia

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com
Modernization of Law in Ethiopia: A Study in

Process and Personal Values
NORMAN J. SINGER*
The Empire of Ethiopia, the oldest independent nation of Africa,

recently instituted a program of legal modernization, one of the more
innovative such plans of this century. Ethiopia was fortunate in that
some important historical factors facilitated this effort. One of the
few African countries that had never been under the yoke of a colonial
power, Ethiopia did not have a foreign system of laws imposed by a
European power. Yet, a distinct indigenous system of written law,
the Fetha Nagast, had been in existence since the sixteenth century. 2
OLL.B., Boston University; S.J.D. Candidate, Harvard; Research Fellow, Yale Law
School.
i. For a brief discussion of possible influence exerted by various foreign laws,; most
notably French, see Vanderlinden, Civil Law and Common Law Influences in the De-
veloping Law of Ethiopia, 16 Buffalo L. Rev. 250 (1966).
2. The Fetha Nagast ("Law of the Kings") probably was originally drafted in Arabic
by Abu-I Fada'il Ibn al-Assal during the reign of Patriarch Cyrill III of Alexandria
(235-43) as a guide for Christians living in a Moslem society. The original Arabic
version is usually referred to as the Nomocanon. See Dib, Lequel des lbn al-'Assal est
l'auteur du Nomocanon?, 2o Revue de l'orient chr&ien 104 (1915-17). Ethiopian
tradition has it that the drafting was done by the 318 wise men of the Council of
Nicaea in 325 A.D. following the orders of Emperor Constantine. It is not clear when
the Fetha Nagast was first introduced into Ethiopia. Some estimates have placed the
event as early as the reign of the Emperor Zar'a Yakob (1434-68). Others have placed
it as late as the reign of the Emperor Eyasu I (1682-17o6). At any rate, it was trans-
lated into Ge'ez, the ancient language of the Coptic Church. Not until 1965 was a
complete Amharic version produced. An English translation, prepared under the auspices
of the Faculty of Law at Haile Selassie I University, was published in early 1969. An
annotated Italian version has been available since 1899. See I. Guidi, I1 Fetha Nagast
o "legislazione del Re" Codice ecclesiastico e Civili d'Abissinia, 2 vols. (1897 & 1899). See
also Graven, The Penal Code of the Empire of Ethiopia, i J. Eth. L. 267, 268-72 (1964).
All references to the Fetha Nagast are to the English edition, which the author saw in
page proofs.
The Fetha Nagast is divided into two sections: one dealing with religious matters,
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HarvardInternationalLaw Journal / Vol. ii
Both a sense of nationhood and tradition, then, were deeply embedded;

both would be extremely helpful as points of departure for the modern
system of law.
On the other hand, Ethiopia faced many of the same problems as
did other African nations in attempting to modernize and unify its
laws. Even though the FethaNagast was based on Christian doctrines
(Christianity is the state religion 3 ) and seemingly well suited as a
basis from which a modern legal system could be structured, this
law's application was limited; much of the Empire was and is com-
prised of Muslim and pagan tribal enclaves,- which do not adhere
to the Christian ethic. In addition, the linguistic make-up of the
country is so diversified that only a rather limited number of the total
population can adequately understand Amharic, which has been chosen
as the national language.4 And close-knit tribal life has been per-
petuated, because meaningful systems of communication and educa-
tion that could be used to develop ties beyond the tribal level have
been lacking.
The present study will outline and analyze the mofernization
process in this national context. Following an introduction to the
Ethiopian legal setting existing prior to the modernization, the article
will focus on the drafting of a new law - the Civil Code. A com-
parison with somewhat contrasting modernization programs in two
the other with secular matters. The religious section incorporates Old and New Testa-
ment sources, together with canons of the early Church councils held at Nicaea and
Antioch. A strong religious flavor permeates the secular section as well, though it is
based primarily on four books known as the "Canons of the Kings." The Fetha Nagast
was never regarded as binding law by the courts, but rather as a base from which an
equitable decision could be reached. By the mid-g5o's it was regarded as often out-
dated, and there is some question as to whether it was applied with any regularity.
See, e.g., Krzeczunowicz, A New Legislative Approach to Customary Law: The "Re-
peals" Provision of the Ethiopian Civil Code of z96o, i J. Eth. Studies 57, 58 (1963).
Nevertheless, the Fetha Nagast by its very nature had a higher status than customary
law. It represented the only "national law," applicable to Christians living throughout
the Empire, and was regarded as a compilation of great wisdom and venerableness.
Copies of the manuscript were scarce, though this fact was relatively unimportant in a
predominantly illiterate country. The "legal minority" had access to them. The Fetha
Nagast is still the canon law of the Ethiopian Orthodox Church.
3. Eth. Rev. Const. arts. 126, 127.
4. The Christian population is basically Amharic-speaking. While Amharic is the
official language of the Empire, government publications also appear in English.
5. The government has now placed a major emphasis on communication and education.
A fourth highway program, costing some $73 million dollars, has recently been com-
menced to provide additional all-weather roads to many of the more remote areas of
the Empire. A crash program of elementary school building in the rural areas has been
sponsored by the Swedish Government, which matches locally raised funds and has
invested $84 million.
197o www.abyssinialaw.com
/ Modernizationin Ethiopia 75
other "developing" countries will then be made, and the article will
proceed to give a detailed contrast of the old and new law, concen-
trating-for reasons of appropriateness and of brevity- on some
aspects of family law. Along the way, lessons concerning the pre-
requisites of successful modernization will be developed, and these
will be amplified in a concluding section.'
PRELUDE TO MODERNIZATION
In 1889, Emperor Menelik II, the "father of modern Ethiopia," com-

menced his campaigns to annex what is now the southern half of
the Empire.7 Attaining this goal by 1905, he turned his attention to
formal institution-building and in 19o8 initiated a process of modern-
ization by creating governmental institutions on a European model.8
6. Existing written materials on the development of the Ethiopian legal system are
few (and often unsatisfactory) and extremely difficult to obtain. For a general intro-
duction to the literature on Ethiopian law, see Vanderlinden, An Introduction to the
Sources of Ethiopian Law with an Outline of a Bibliography, 3 J. Eth. L. 227 (1966).
The author depended upon field research done while he was a member of the Faculty of
Law, Haile Selassie I University (1964-68) to gain" the information concerning the tra-
ditional law of the Empire discussed herein. A variety of methods were used. Research
among the people of Arussi Province, mainly the Arussi Galla, Amhara, and Shoa
Galla (the Gallas are the largest ethnic group in Ethiopia, constituting some 40 percent
of the total population), followed the typical interview technique, with a total of over
130 people being interviewed. Research among the Cambata 'was carried out after
selecting a part of the tribal domain that was thought to be representative of where
pure tribal law was being applied. The author and an Ethiopian university student from
this area moved into the home of the Wassera Omoshogoro clan judge, Ato Grebre
Mikacl. In addition to permitting us to attend sessions of his court, he facilitated
the interviewing of some seventy persons, including elders of the tribe. This interviewing
employed a panel discussion technique. Research papers obtained from the archives of
two mission schools located in the area proved extremely valuable as a secondary source
of information.
Among the Gurage research was carried out with still another modification. A former
student of the Faculty of Law who was the son of the chief of the Izia (one of the seven
houses of Gurage) conducted interviews with elders of this house and others knowl-
edgeable in Gurage law. The author's role was limited to taping the interviews. This
process continued over a period of two years; some seventy-five persons were ultimately
contacted. Throughout this article certain secondary sources are cited in relation to
various aspects of customary law to enable the reader to pursue further research. Most
of the author's conclusions, however, stem directly from his field research.
7. The annexed areas were made up of predominantly Muslim and pagan tribal
groups. By x9o5, the Empire's geographical boundaries were as they are today. For a
concise and accurate history, see A. Jones and E. Munroe, A History of Ethiopia (2d
ed. 1954).
8. Including a Council of Ministers, with ten men holding ministerial rank accord-
ing to function: Justice, Defense, Interior, Commerce, Foreign Affairs, Finance, Agri-
culture, Archives, Public Works, and the Palace. In 1911, the Ministry of Posts and
Telegraphs was created. For discussion of this political institutionalization, see 2 G.
Selassi6, Chronique du rfgne de Mn~lik II, roi des rois d'Ethiopie 523-30 (1930);
M. B. Wolde-Meskel, Zikre Neger (1949).
HarvardInternationalLaw Journal / Vol. zz
At the outset, the reforms merely represented a change in form; no

new functions were created, though new ministries were established.'
As our interest in this institutionalization of the government involves
the administration of justice, we need focus only on the Ministries of
Justice and Interior, the two that assumed judicial responsibilities.
As regards the Ministry of Justice, the reform accomplished little
more than minor decentralization of functions. The Afe Negus
("mouth of the king"), .who formerly had been the aide of the Em-
peror for legal matters, became the Minister of Justice and Chairman
of the Council of Ministers. While previously the Aje Negus had
heard only appeals from local tribunals, in place of the Emperor, the
pressure caused by his new duties in the government forced a reorgani-
zation. The Empire was divided into six districts, and each district
had two wombars ("chairs" or "judges") appointed by the Emperor
to render appellate decisions referred to the palace. 10 (Litigants on
appeal still had to come to the palace in order to have justice done.)
The decisions were recorded by scribes, three assigned to each district.
Finally, appeals could be taken from the wombars to the Emperor,
in"Chilot,"" if the Afe Negus agreed that a further review was neces-
sary.
9.In the traditional hierarchy, there were four officials who performed governmental
functions together with the Emperor. The Afe Negus (discussed in text infra) was the
legal officer and general spokesman for the Emperor. The first Fitawrariof the Em-
pire was the military officer who would assume command of the armed forces in
times of war or other military expeditions. He combined the roles of Minister of De-
fense, Chief of Staff, and Field Commander. The Tshafi Taezaz ("writer of orders")
was keeper of the Imperial Seal and Chief of the Treasury. The fourth official was
the Ligaba, who was charged with the transmission of Imperial orders to the public
and the arrangement of all audiences with the Emperor. All these titles still exist in
Ethiopia. The Ligaba performs his traditional functions; the Tshafi Taezaz is now
Minister of the Pen, in charge of the Royal Archives and responsibile for the issuance
of Imperial Orders; the Ale Negus is Chief Justice of the Supreme Court. The designa-
tion of Fitawrarihas lost considerable meaning; it is now merely a respected title given
to a senior government official.
so. The wombars never "rode circuit." And the Ale Negus retained thestatus of
presiding judge; difficult matters could be referred to him by the wombars.
ii. During Menelik's later days, he did not give judgments himself. Ras Tafari
Makonnen, heir to the throne (appointed regent in z916, now Emperor Haile Selassie I),
acted as his representative. Cf. 2 G. Selassi6, stupra note 6, at 533 n.i9. The Fird Mirmera
(examiner of judgments) still exists and screens all cases that are appealed to the Emperor
in Chilot. Before the case finally reaches the Chilot, another body, the Sebre Semi, will
study the file and prepare an advisory opinion for the Emperor. Finally, an oral argu-
ment will be held before the Emperor, who will then issue a final judgment. The Em-
peror's judgment does not have to be based on the positive law and can be made according
to equity and good conscience. For a general historical treatment of the institution of
Chilot, see Sedler, The Chilot Jurisdiction of the Emperor of Ethiopia: A Legal Analysis
in Historicaland Comparative Perspective, 8 J. Afr. L. 59 (1964). See also Sedler, The
/ Moderniztion in Ethiopia
The governors deployed to the provinces by the Ministry of the

Interior were the agents through which a system of provincial courts
was established.12 In addition to their peace-keeping and general
administrative functions, the governors had the duty to adjudicate
disputes between persons located in their provinces. This function
was carried out successfully in many of the northern provinces, where
the Amhara - who had the same ethnic background as the governors
13
- resided. But in the conquered southern areas only recent settlers
entrusted their conflicts to the governor. To the indigenous popula-
tion of these conquered areas, the governors represented a central
ruling clique that had taken away much of their land. Moreover, there
was usually no common language for communication; much of the
southern population spoke Galla, while the language of the adminis-
trators was Amharic. And a religious difference - and tension - also
existed between the Christians and the tribes of the south, most of
which were either Muslim or animist. These factors in combination
led the local southern population to ignore for the most part the
adjudicative function of the local governors;' 4 typically, throughout
most of the non-Amhara regions, reliance was placed on customary
institutions.
Thus, after the "first modernization program" had been imple-
mented, there were basically three aspects to the administration of
justice: (i) the tribunals set up in Addis Ababa to hear appeals from
the Empire at large; (2) provincial courts manned by the Ministry of
Interior's governors; and (3) the indigenous system that had previously
existed. No change had been made in the substantive rules of law;
judges (governors) relied on those with which they were familiar, in
Development of Legal Systems: The Ethiopian Experience, 53 Iowa L. Rev. 562, 618
n.261 (1967).
2. See A. Zervos, L'Empire d'Ethiopie 273 (1936).
13. On the basis of the only known listing made of the provinces and their adminis-
tration, statistics have been compiled. Of the thirty-eight provinces into which the
Empire was divided, thirty were completely administered by Amharas. One province
was split into two parts; half was administered by the Amhara governor and the other
half administered by the traditional chief, who was a Christian Galla. Four other
provinces were administered by the traditional authority figure. These provincial chiefs
were also very -powerful nationally. One, for example, was the grandson of a former
Emperor. Only one of these traditional leaders was not a Christian. In three provinces,
all minor ones, the governor was not stated. It can be assumed that the governors in
these areas were Amhara. Id. at 319-411. The reports of Zervos cover the period just
prior to the Italian occupation of 1935. It is assumed that the situation had not sub-
stantially changed in the thirty years that intervened since the consolidation by Menelik
II.
14. Cf. Sedler, Development of Legal Systems, supra note ii, at 61-12.
most cases the Amhara customary rules. If the governors or wombars

were familiar with the rules of the Fetha Nagast, that body of law
was often referred to for resolution of the conflict.
The next change in the legal system did not take place until the
accession of Emperor Haile Selassie in late i93o. On July 23, i93i,
he granted the first written Constitution to the Ethiopian people. "
This 1931 Constitution served as the primary basis for the government
of Ethiopia for twenty years, but its inadequacies became obvious
following the federation of the Empire in 1952 with Eritrea, whose
constitution was markedly liberal by comparison, Therefore, a Re-
vised Constitution was promulgated in 1955; 16 it is in effect today.
The effects of the revision are indicated by the Emperor's remarks in
a speech of April 14, 1961:
As Our Empire grew and flourished, it became apparent that the
Constitution of 1931 no longer responded adequately to the needs
of Our people. Accordingly, in 1955, again in the face of objec-
tions and opposition, We promulgated the Revised Constitution
with which you are all familiar. In it, provision was made for
Our people to enjoy direct representation and participation in the
business of Government. The division of power among Us, Our
Ministers acting collectively and individually, and Our Parliament,
7
was solidified and acquired permanent institutional formY
In addition, a penal code had been promulgated on the day of the
Emperor's coronation, with the purpose of insuring efficient and uni-
15. The procedure used in drafting the Constitution has been related by the (then)
Minister of Finance, Bejirond Tekle Hawariat. The Minister felt that a Constitution was
needed and, after convincing the Emperor, was ordered to draft it himself. He con.
sulted the constitutions of other nations, provided by the diplomatic and consular lega-
tions that were located at that time in Addis Ababa. His prepared draft, apparently
inspired in part by the Japanese Constitution, was submitted to major noblemen of
the country for discussion and approval, before being issued. For a full discussion of
this area, see J. Paul & C. Clapham, Ethiopian Constitutional Development 320 et seq.
(1967). See also C. Clapham, Haile Selassie's Government 192-95 (1969); M. Perham,
The Government of Ethiopia 95 (ad ed. 1969).
x6. Most of the detailed drafting of the Revised Constitution was done by three
American legal advisors working under the direction of Mr. J. H. Spencer, who in turn
worked closely with Ethiopian officials. The first draft, dated February 2, 1954 and
written in English, was translated into Amharic and submitted for review and revision
to the Emperor, leaders of the church, the nobility, and officials. The document was
finally promulgated twenty-one months after the first draft had been completed. Not
unnaturally, it is in some respects similar to the American Constitution. For a detailed
analysis of this process, see C. Clapham, supra note 15, at x96; J. Paul & C. Clapham,
supra note 15, at 387-88.
17. Speech of April 14, 1961, reprinted in Selected Speeches of his Imperial Majesty
Haile Selassie I 411 (1967).
/ Modernization in Ethiopia
form enforcement of the law.' It has been said that this Code was
merely a codification of the principles of the Fetha Nagast, which
would now be applied by government law enforcement officers equally
to all persons within the Empire. 9 While the Fetha Nagast was
clearly one source of the Code, it also contained principles of modern
codes. In sum, the 193o Penal Code seemed delicately to balance
both traditional and modern aspects of the criminal law. It lasted,
with frequent amplification,20 until the Revised Constitution was
drafted, containing principles that had to be coordinated in a more
modern code of penal law.
One final phase of revision occurred prior to the sweeping modern-
ization program of 1954. After the Italian occupation (1935-41) ended,
numerous changes in the system of the administration of justice were
made. For the first time, a full court system was officially established.
Courts were now locatMd in all political subdivisions of the Empire,
with a High Supreme Court in Addis Ababa capping the system.2 '
Judges were dispatched to as many of the newly established courts as
possible; where no judges were available, the governors acted in that
capacity.2 2 In spite of (or perhaps because of) all this activity, little
attention was still paid to substantive law: very few laws were pro-
mulgated after 19412 The stage was now set for the 1954 modern-
ization program.
18. See Graven, supra note 2, at 273.

x9. Id.; A. Zervos, supra note X2, at 274. "[A] knowledge of the Bible aids one in
its interpretation." Clogger, The Code of Ethiopia, [1956] Crim. L. Rev. (Eng.) 165.
2o. The 193o draft of the Penal Code was actually incomplete, the result of Italy's
occupying the country. From the end of the occupation (1942) until 1952, a series of
Proclamations were issued that in effect completed the drafting of the Code. In addi-
tion, a number of amendments to the Penal Code were enacted following the occupa-
tion. See generally N. Marein, The Ethiopian Empire: Federation and Laws i8o-9o
(1954).
21. Administration of Justice Proclamation No. 2 of 1942, Negarit Gazeta, March 30,
1942 (the Negarit Gazeta, begun in 1942, is the official governmental newspaper used
solely to communicate legal information to the public). This system, originally pro-
viding six levels of courts, was later revised into a four-level structure, which now
exists. A brief summary is provided in Sedler, Development of Legal Systems, supra note
ii, at 6xo et seq. For a more detailed analysis, see R. Sedler, Civil Procedure in
Ethiopia ch. 2 (1968).
22. Even when there were judges presiding who had been appointed by the Ministry
of justice, the governor had the power to intervene as president of the court. See, e.g.,
art. X of Administrative Regulations, Decree No. I of 1942, Negarit Gazeta, Aug. 27,
1942.
23. For a good survey of the legal system as it existed in 1954, see N. Marein, supra
note 20, at i8o-9o. Aside from the Constitution and the Penal Code, other substantive
positive law existed: the Law of Loans, various laws regulating imports and customs,
laws relating to the licensing procedures for a number of professions, and the Nationality
THE PROCESS OF MODERNIZATION
A. The Plan
Late in 1953, a decision was made to reform and codify the laws of
the Empire. The Emperor later stated:
The necessity of resolutely pursuing Our programme of social
advancement and integration in the larger world community
S.. make[s] inevitable the closer integration of the legal system
of Ethiopia with those of other countries with whom we have
cultural, commercial and maritime connections....
We have never hesitated to adopt the best of what other systems

of law can offer to the extent that they respond and can be adapted
to the genius of Our particular institutions....
To that end We have personally directed the search for the out-
standing jurists of the continent of Europe to bring to Us the
best that centuries of development in allied and compatible sys-
tems of law have to offer....
The great distinction of the continental experts whom We welcome

on this occasion should not cause us to lose sight of the principle
which We have stated, namely, that Ethiopia should endeavour to
adopt and adapt the best that other legal traditions have to
offer....
However, as We have remarked, the point of departure must

remain the genius of Ethiopian legal traditions and institutions,
2 4
which have origins of unparalled antiquity and continuity....
The spirit of the process, it seems, was to include what foreign sys-
tems of law could provide for Ethiopian legal development, without
distorting Ethiopian traditions.
This intention seems manifested in the procedure that was chosen
for the modernization (analyzed in greater detail below). European
scholars were employed to draft codes 25 which would then be sub-
Law of July 22, 1930. See generally A. Zervos, supra note 12, passim. The Nationality
Law wai to be replaced by provisions incorporated into the Civil Code. This was not
done, however, and the 1930 law still regulates nationality in the Empire. See Sedler,
Nationality, Domicile and the Personal Law in Ethiopia, 2 J. Eth. L. 161 (1965).
24. Eth. Herald, March 27, 1954, at 3, col. I.
25. The experts and the codes that they were charged with were as follows: Rene
197o / Modernization in Ethiopia
mitted to a. Codification Commission, composed of Ethiopians and

members of the resident foreign community2 The Commission was
to discuss and revise the drafts drawn up by the experts27 and then
refer the proposed codes to Parliament, which, after its turn at dis-
cussion and revision, would submit the codes to the Emperor for
promulgation. The process eventually took seven years to complete
and resulted in the promulgation of five codes of lawYs
It is not clear that any of the experts had actually been briefed as
to what specifically they were to include in the codes. The job was
basically open-ended; new codes were to be prepared for the Ethio-
pian people, and the experts were on their own in making the deci-
sion as to what should be included. But these foreign experts, brought
to Ethiopia because of their expertise in foreign systems, were pre-
sumably to prepare drafts primarily based on foreign law. The Codi-
fication Commission, it appears, was established to insure that the
substance of the codes would nonetheless be representative of Ethio-
pian concepts of justice. This counterbalancing effect of the Con-
David, Professor of Comparative Law of the University of Paris-The Civil and Civil
Procedure Codes; Professor Jean Graven of the University of Geneva-The Penal and
Criminal Procedure Codes; Professor Jean Escarra of the University of Paris-The
Commercial and Maritime Codes.
26. Members of the Commission were appointed by an internal circular sent from
the Minister of Justice, who also served as Chairman of the Commission. Certain per-
sons were named because they held specific governmental posts, such as the Chief
Justice. The other positions were appointive. When one of the members left the
Commission and a new person was appointed, the appointment was made in the same
manner- by internal circular. The appointments were never made public. In fact,
the only public reference that has been discovered mentioning the codification work
were the speeches delivered at the ceremonies officially inaugurating the Commission.
See Eth. Herald, March 27, 1954, at 3, col. x. These were made by the Emperor, the
Minister of Justice, and Professor Escarra. No names were mentioned in any of the
speeches. A picture also appeared in the same issue of the Herald, captioned, "The
Ethiopian Codification Commission Meets the Emperor." No faces can be distinguished
in this photograph.
27. The term "experts" will be used to refer to the principal drafters of the codes,
following Ethiopian practice in this regard.
28. The following codes were promulgated as a result of the Codification Commis-
sion's work: the Penal Code of 1957, the Civil Code of i96o, the Commercial Code
of 596o, the Maritime Code of Ig6o, and the Criminal Procedure Code of ig6x. The
last was completed by Sir Charles Matthew of England. The draft of the Commercial
Code was completed, after the death of Professor Escarra, by Professor Alfred Jauffret
of the University of Aix-Marseilles. The Civil Procedure Code was originally part of the
task that Professor David undertook, but it was finally drafted by members of the
Codification Department of the Ministry of Justice under the leadership of the late
Ato Nirayo Ensayas, Vice-Minister of Justice, and was promulgated by Decree in 1965.
All other codes appeared in the form of a Proclamation. For the distinction between
these two types of legislation, see Eth. Rev. Const. arts. 86-92; K. Redden, The Legal
System of Ethiopia ch. 3 (1968).
HarvardInternationalLaw Journal / Vol. i
mission was essential, as too little time had been allotted to hope that
the foreign experts would additionally become familiar with the
diverse rules of Ethiopian customary law 9
As to why the Emperor chose continental Europeans to draft the
laws, a number of reasons may be suggested. One function of the
experts was to counteract the growing influence of English values in
Ethiopia occurring after "Liberation" from the Italian occupation °
Also of undoubted significance was the Emperor's desire for a clear,
systematic, compact, complete, and authoritative statement of the law
- within a very limited period of time - which would aid in broaden-
ing Ethiopians' comprehension of their law. 1 Presumably, he felt that
a code system would meet these requirements, and that experts trained
in the common law tradition would be less suited for drafting the
law in code form. It must also be recalled that the European codifica-
tions- starting with the Prussian codification of 1794 and continuing
with the French of 18o4, the Austrian of i8ii, Italian of 1865, Spanish
of 1889, German of 9oo, and Swiss of 1911 - served at first as patterns
for unifying the laws of these nations; 2 Ethiopia, too, was thinking of
the new law as a unifying force. Finally, one may assume that the
Emperor, who had been trained in the French tradition and who
speaks French as his second language, was disposed toward working
with persons conversant with the tradition with which he was most
familiar. Perhaps, indeed, the controlling element in the choice of
29. It is dear, however, that Professor David did read all or most of the available
published works on the Ethiopian legal system. He has cited, for example, the works
of the leading Italian scholars Conti Rossini and Ostini, who had done work on the
traditional system, and the work of Marein on the modern system. See generally David,
A Civil Code for Ethiopia: Considerationson the Codification of the Civil Law in African
Countries,37 Tul. L. Rev. 187 (1963).
30. Id. at 192. During the occupation, the Emperor spent his exile in England, more
or less forced to do so by the threat of war in continental Europe; and he later retook the
Empire with the aid of Commonwealth soldiers. English then became the European
language of communication. Also, a treaty was concluded in January 1942 between
Ethiopia and Great Britain, permitting a number of British citizens to take up provincial
administrative and judicial positions. Eth. No. i Cmnd. 6334 (1942). The text may be
found in M. Perham, supra note 15, app. I. With the British so involved, the Emperor
was put under pressure to accept their influence, including replacing French with English
as the European language of communication. One result was that, whereas Ethiopian
laws had been issued in French prior to a935, all laws were now published in the official
gazette in Amharic and English.
3r. Cf. Vanderlinden, supra note x, at 259. It should also be noted that the Fetha
Nagast had distant connections with the Roman legal tradition.
32. See Lipstein, Conclusions, 9 Int'l Soc. Sci. Bull. 70, 72 (U.N.E.S.C.O. 1957);
Hahlo, And Save Us From Codification, 77 S. Mr. L.J. 432 (i96o).
z97o / Modernizationin Ethiopia
French-speaking continental lawyers as draftsmen was the basic

orientation of the man who made the decision.3 3
B. Codification: The Civil Code
Our consideration of the way in which codification proceeded will

focus upon the Civil Code of i96o. A civil code represents an effective
model from which one can refer to problems that are encountered in
the modernization of almost all laws. Moreover, it may be seen as
serving functions most akin to those of customary law, and studying
it thus facilitates an evaluation of how and to what extent customary
(generally unwritten) law should be disposed of in the modernizing
process. Finally, the Ethiopian Civil Code is significant because of the
34
claim that it would serve as a model for future African codes.
r. The TraditionalBackground. The existing Ethiopian law at the
time codification began was for Christians the Fetha Nagast and for
non-Christians either the Shar'alaw for Muslims or general custom-
ary law for pagans. In both Christian and Muslim areas, however,
these laws were not applied to all disputes; customary laws existed
as well. In the Muslim areas, the Shari'a sometimes conflicted with
custom; and in many cases custom constituted what was called Sharia
Law. 35 As for the Fetha Nagast, it was more than ordinary law; it
36
represented a system of morality, often removed from practical affairs
In effect, many of the customary legal rules did not adhere to it; its
place can best be understood by comparison with the old European
theoretical teaching which referred to Roman or natural law as a
body of idealized law. 7 For the pagans, however, custom alone pre-
vailed.
Reflecting on this background, the expert in charge of drafting an
33. For a discussion of the "politics" of codification, see Bayitch, Codilication in

Modern Tines, in Civil Law in the Modern World 16i .(A. Yiannopoulos ed. 1965).
34. David, La refonte du Code civil dans lesEtats aficains, 72 Recueil Penant 352,
363 (x962) ("Le Code civil &hiopien jouit en effet, me semble-t-il d'un double titre
pour constituer, au moins dans sa partie relative obligations, le code-modle de l'Afrique").
See also David, Le Code civil &hiopien de 196o, 26 Rabels Zeitschrift fur auslindisches
und internationales Privatrecht 668 (196i).
35. See, e.g., J. Trimingham, Islam in Ethiopia 165, 179, 213, 215, 230-31 (1952)-
36. For example, the Fetha Nagast recognized only one form of marriage, that per-
formed in the church. In practice, marriage was more often celebrated outside the
church. See p. io & note 87 infra.
37. See generally David, Les sources du Code civil ethiopien, 14 Revue internationale
de droit compar6 497 (196z).
avant-projet (first draft) of the Civil Code could not have expected
to work with the Fetha Nagast as his only base.38 Moreover, the
Emperor had specifically declared "that Ethiopia should endeavour
to adopt and adapt the best that other legal traditions have to offer,"
while also maintaining that local custom was not to be eliminated
from consideration. It must be emphasized, however, that the inclu-
sion of consistent custom would have been particularly difficult. Varia-
tions in custom from location to location were of such a basic nature
that it would have been almost impossible substantially to unify the
law on that basis. 39 Furthermore, except for some of the rules found in
Eritrea, custom had not been formally recorded. Even the Ethiopian
members of the Commission were familiar only with the law of their
own communities.4 ° Finally, even if the customary law could have
been used overall to any meaningful degree, any choice would have
necessarily been arbitrary, 41 as the time schedule established for the
drafting did not permit the development of a comprehensive restate-
ment.
2. The DraftingProcess. After a general meeting of the Commission
(on April 2, 1954), which reviewed Professor David's general con-
ception of the civil codification, the expert then retired to the privacy
of his workroom, located in Paris, to do the actual drafting. A codi-
fication process normally (though here, of course, the expert 'was
also to employ foreign laws already codified) involves two distinct
procedures: consolidation and codification. First, all available sources
of the law have to be gathered in order to be evaluated for pos-
sible inclusion. The usual sources are doctrinal writings, court de-
cisions, or legislative enactments. Few works, however, had been
38. Substantively, and as an academic matter, it would have been possible for him
to do so, had he desired: the Fetha Nagast represented as complete a body of civil laws
as any of the recent European civil codes.
39. The variation was usually on a tribal basis, but one could even find differences
within tribes. See Popisil, Legal Levels and Multiplidty of Legal Systems, as J. Conflict
Res. 2 (x967). In Eritrea, for example, among the members of the Tigrinia-speaking
people, the customary law varied according to geographic locations. Village adminis-
trative centers had simply grown up and administered the law separately. For a com-
plete discussion of traditional legal institutions in Eritrea, see C. Conti Rossini, Principi
di Diritto Consuetudinario dcll'Eritrea (gi96).
40. Moreover, the Ethiopian commissioners were entirely Amhara Christians. Thus,
even if their customary practices could have been described with facility, a large part
of Ethiopia would not have been considered.
41. In fact, we will see a good example of this in the discussion concerning divorce,
pp. io-2o infra, where the rules included in the Code were based almost exclusively on
custom.
i970 / Modernization in Ethiopia
written about Ethiopian law;4" parliamentary laws were scarce;4 s and

the collection of judgments that was prepared for the Commission's
use was apparently never translated from Amharic-making it rela-
tively useless for the expert." The "usual" sources failing, the Com-
mission itself was supposed to supplement the expert's insufficient
knowledge of Ethiopian law and acquaint him with the spirit of the
law as applied. There is some question as to how this function was
performed, as the expert spent most of his time in Paris.
42. Prior to 1955, the only publications that existed on Ethiopian law were N. Marein,
supra note 2o; J. Auberson, Etude sur le r~gime juridique des 1trangers en Ethiopie
(1936); I. Guidi, supra note 2; and a number of -books on Eritrean customary law.
There were also several traveler's accounts that discussed the judicial system. These
descriptions were usually superficial, as well as conflicting. See, e.g., 2 M. Parkyns,
Life in Abyssinia 2oo (854). C. Walker, The Abyssinian at Home (1935) is an
anthropological study that describes the everyday conversations of an Ethiopian peasant.
The fact that approximately one-quarter of this manuscript deals with law supports the
view that the law was one of the more important aspects of an Ethiopian's daily life.
Unlike the practice in other societies, it was not unusual for a party to a dispute to
have counsel when appearing before the village elders. Given the importance of law,
it is confusing that more was not written on the Ethiopian law by Ethiopians them-
selves.
43. Parliament was first instituted under the 1931 Constitution. Valuable materials
have been gathered on this body. See, e.g., J. Paul & C. Clapham, supra note xS;
C. Clapham, supra note 1S; Markakis & Beyene, RepresentativeInstitutions in the Political
Systems of Developing Societies: The Case of Ethiopia, 5 J. Mod. Afr. Studies 193 (1967).
Very few pieces of legislation have emanated from Parliament.
44. A substantial number (7,296) of case summaries were prepared by the Ministry
of Justice, on the order of the Emperor, to guide the Commission. They were all done
in Amharic. Professor David did ask, apparently to no avail, that this body of juris-
prudence be translated into French for his use as well as for the benefit of the other
foreigners sitting on the Commission. Rapport de M. le Professeur Ren! David sur
la conception ginirale de la codification envisagie, les rapports entre J'expert et la
Commission, et la m thode de l'expert, 4 Doc. Civ. C. 3 (April 12, 1954). Recently,
the Faculty of Law of Haile Selassie I University has undertaken an English translation.
It is not clear exactly what the sources for these case summaries were. Since they
were compiled from the -archives of the Ministry of Justice, the pre-194i judgments
were probably those of the wombars, who rendered appeal decisions in the palace com-
pound. The only judges that existed in the provincial areas were the governors, and
even had some of their decisions been written, they would not have been recorded in
the archives of the Ministry of Justice - the governors were part of the Ministry of
Interior. The post-1941 decisions probably also included those rendered by Amharic-
speaking judges in Addis Ababa. It is quite certain that the decisions of foreign judges
were not consulted; nor is it likely that the archives of provincial courts were referred to.
Informatioh is also lacking as to what law was used in rendering these decisions.
Presumably, many of the judgments represented interpretations of the Fetha Nagast.
A brief analysis that the author has made of a number of sample judgments confirms
this view, which in turn raises the question of whether the judgments were chosen
because they represented interpretations of the Fetha Nagast or whether a random
sample of the archives was chosen regardless of the source of the law and it so hap-
pened that members of the judiciary generally referred to the Fetha Nagast in handing
down decisions (certainly, the Fetha Nagast was most important in the High Courts and
in Chilot). Moreover, one may question how much use the Commission made of these
summaries.
After preparation of the avant-projet, however, the Commission was

to present its opinion of the draft, indicating whether or not Ethiopian
traditions and institutions were adequately represented, and whether
the draft was capable of practical application. It was in this way that
the expert's knowledge was supplemented. A further function of the
Commission at this stage was to verify the translation of the provisions
from the French into Amharic and English, the languages in which the
Code was to be published. 45
By mid-May of 1958, the Commission had finished its work. Work
was started immediately in the joint legal committee of the Parliament,
and the proposed code was discussed, article by article. Although
changes were made by the Parliament, they generally were of minor
significance. The only change of major consequence was the cutting
of the transitional articles incorporated at the end of the Code from
eighty-four to ten,4 6 causing the expert to regret that "numerous and
important transitory provisions were profoundly recast." 4 Parliament
then presented the final version to the Emperor. In accordance with the
Ethiopian custom of announcing major events on important religious
or civil holidays, the Civil Code was officially promulgated on May 5,
i96o, the anniversary of the "Triumphal Reentry" into Ethiopia fol-
lowing the Italian occupation. It went into effect on September ix of
the same year, New Year's day of the Ethiopian calendar year 1952.
3. Content of the Code. With its 3367 articles, the Ethiopian Civil
Code is one of the longest in the world 48 This length is attributable
45. The translation into Amharic was very difficult. Professor David has called it
"overwhelming." David, supra note 29, at 199. An attempt was made to prepare a
code that could be understood by the people. Moreno, La Terminologia del nuovi
codici ethiopici, 2o Rassagna di Studi Ethiopid 22 (1964), has made a study of the
word sources of the Code. The expert was very concerned that the French be accurately
translated into Amharic. For example, he had articles 1763-1864 retranslated from
Amharic to French by an Ethiopian. See David, supra note 29, at z99. Nevertheless,
some startling errors remained. Article 668 of the Civil Code, "Pronouncement of
Divorce for Serious Cause," states in the English and Amharic versions: "The Family
Arbitrators shall make an order for divorce within three months." In the original
French, it states "one" month. In the French version, the word cre'ance appears a
number of times. It has been translated into English in the following ways: "debt"
(art. 1048); "credit" (art. 1347); "claims" (arts. 2865-68); "chose in action" (art.
2411(2)). Likewise, faute has been translated as "offense," "default," and "fault."
See Krzeczunowicz, Ethiopian Legal Education, z J. Eth. Studies 68, 69 (z963), and
Fasil & Fisher, Language and Law in Ethiopia, 5 J. Eth. L. oo (forthcoming 1969), in
which the general problem of language in the Ethiopian codes is discussed. It should be
noted that the Amharic codes are the official versions.
46. When presented to Parliament, the draft code contained 3504 articles; Parliament
cut this back to 3367.
47. David, supra note 29, at 201.
48. The Code is divided into five books: Book I -Persons (Natural and Juridical);
197o / Modernizationin Ethiopia
to the regulation of matters heretofore not included in civil codes,

such as Bodies Corporate and Property with a Specific Destination
(title III), Literary and Artistic Ownership (tide XI), Medical or
Hospital Contracts, Contracts of Innkeepers, and Publishing Con-
tracts (tide XVI, chapters 5, 6, and 7). Other matters included that
one would not generally find are Collective Exploitation of Property
(tide IX), matters pertaining to civil status, including Registers (title
I, chapter 3), Registers of Immovable Property (title X) and Adminis-
trative Contracts (title XIX).
Two titles of the Code deserve special mention: title XIII on Extra-
contractual Liability and Unlawful Enrichment, and tide XIX on
Administrative Contracts. The former's provisions on extracontractual
liability (tort) are 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). The development of a sub-
stantial number of articles in order to guide the judges to clear solu-
tions is in line with the thinking that went into the Code in general.49
Also, this is an area in which there is usually a substantial amount
of litigation. ° The Code refers to specific offenses in much the same
way that one would expect to find in a torts textbook of Anglo-Ameri-
can law. The torts included are, inter alia, assault (article 2038), false
imprisonment (2040), defamation (2o44), trespass (2053), interference
with movable property (2054), and unfair competition (2057). There
are provisions covering liability without fault (articles 2066-89), in-
cluding products liability and dangerous activities. Finally, the damage
provisions allow recovery for material and moral injury, including
past and future damages. 1
Book II -Family and Succession; Book III- Property; Book IV-Obligations (in-
cluding Contract, Quasi-Contract, some Torts); Book V-Special Contracts (e.g.,
Sale, Hiring, Bailment, and so forth). The Books are divided into twenty-two titles
and the titles subdivided into chapters, the chapters into sections, the sections into
paragraphs. For a brief description, see Russell, The New Ethiopian Civil Code, 29
Brooklyn L. Rev. 236 (1963).
49. The expert, for one, was concerned with the lack of a "first-class" judiciary and
hoped to keep flexibility in judicial interpretation to a minimum. David, supra note
29, at 203.
50. This is not, however, exactly so in Ethiopia; there are only a great number of
criminal cases. The litigants in general do not yet understand that there are two
processes, civil and criminal; they merely think in terms of the wrong that has been
done and assume that, when they bring the wrongdoer to court via the criminal
process, they will be repaid for the damage done to them. This was preaisely the
reason for including a joinder article (art. ioo) in the Penal Code. The only qualifica-
tion of joinder is that there be considerable damage to the injured party, such as death,
injuries to the body or health, defamation, damage to property, or destruction of goods.
51. Professor David says that the source for these articles was not Anglo-American
The necessity for the separate tide on administrative contracts be-

came obvious with the spelling out of details concerning special con-
tracts. In all countries, rules dealing with government contracts are
found as part of the law.. There was no reason why administrative
contracts should not have been part of the code that was developing
a core of law for the Empire. If these rules were not in the Code,
they would have had to have been eventually developed. 2 It should.
be noted that the expert's procedure was slightly different in the
preparation of this tide. Only toward the end of the drafting'period
was it decided that these rules were to appear in the Code. They were
therefore the last to be drafted; and, as the Commission was busy
preparing the entire code for Parliamentary consideration, the pre-
liminary draft was immediately translated into Amharic for submis-
sion to the Parliament without any discussion or changes. The tide
was also adopted by Parliament without any amendments.1 3 There is
some question in any event as to whether the Commission members
(or Parliament) could have made any significant contribution to this
area of the law, as it had not previously been represented in the legal
system in any way.
4. Sources of the Code. The primary sources cannot be attributed to
any one law but have been adapted from the law of those nations with
whom Ethiopia has "cultural, commercial and maritime connections.""
These nations, namely Egypt, France, Greece, Italy, and Switzerland, "
are also countries with modern codifications. French law played a
general and pervasive role. The Swiss Federal Code of Obligations
was the basic source of the law of obligationsY6 Compilations of the
Common Law world were also surveyed, including the Indian Con-
common law, but the basic French work of doctrine by R. Rodicre on civil responsi-
bility, La responsibilit civile, published in 1952. David, Administrative Contracts in
the Ethiopian Civil Code, 4 J. Eth. L. 143, 145 (1967).
52. Id. at 144. Economic considerations were paramount; most notably, it was hoped
that systematized rules in this regard would help to attract foreign capital.
53. Nor, for that matter, were any changes made by Parliament in title IlI, Bodies
Corporate and Property with a Specific Destination, title X, Registers of Immovable
Property, title XIV, Agency, and title XX, Compromise and Arbitral Submission. See iM.
at 146 n.x2.
54. Eth. Herald, supra note 24.
55. David, supra note 37, at 504. The author informs us that especially in the area
of obligations the provisions of the codes of these five countries were gathered together
in order to complement each other.
56. Id. at 505.
197 o
tract Act, Digest of English Civil Law, Restatements of American Law,

and the South African Law of Obligations.57
An Israeli draft law and a Portuguese draft law served as the basis
for the successions provisions. Rules concerning the ownership of water
were borrowed from the former Turkish Civil Code (Medjelle) and
the Iranian Civil Code. In the area of collective exploitation, the
agrarian code of the Soviet Union and a treatise on Kolkhozes were
utilized as a source (this part of the avant-projet was rejected by the
Commission). Included in the Code were provisions of the draft
uniform laws prepared in Rome on the sale of goods, arbitration, and
58
liability of hotel owners.
Especially based on custom are the rules found in tide IV, Bonds of
Relationship by Consanguinity and by Affinity. These rules are dis-
cussed in some detail below. It appears as if the Commission was
vitally concerned here to incorporate provisions from the Fetha Nagast.
Other parts of the Code remained the original work of the expert;
these include the provisions for registers of civil status and some of
the provisions on registers of immovable property, guardianship, and
wills., 9
Because of the reliance placed on foreign laws, many concepts sacred
to Ethiopians were either omitted or altered in the expert's avant-
projet. This was precisely the point at which the Commission was
to play an important role. For example, the expert's preliminary draft
contained provisions protecting the interests of a person who used the
property of another in bad faith. The draft also contained provisions
for usucaption with respect to immovable property, and a provision
that gave neighbors a right of action against an owner, to prevent ex-
cessive fragmentation of land. All these provisions were substantially
altered by the Commission: they did not accord with Ethiopian values,
which firmly reject the notion that a person might be deprived of his
property rights without intentionally acting to do so.a
Other examples of the Commission's modifying the work of the
expert are not so easily understandable. In the tide on Successions,
the expert proposed that the surviving spouse be given a share of
57. Ethiopian Codification Commission, Rapport S.M.I. Haile Selassie I sur la

codification des lois civiles 6 (1958).
58. David, supra note 37, at 505.
59. Id. at 5o5-o6.
6o. See id. at 501.
HarvardInternationalLaw Journal / Vol. xi
the deceased's intestate estate."1 The Commission persuaded the ex-

pert that this provision had to be eliminated from the Code because
of the Ethiopian concern for keeping property within the blood line.
The expert agreed, and the provision was eliminated. It appears, how-
ever, that the Fetha Nagast, which the Commission was supposedly
following for the rules on Family Law and Successions, does in fact
allow the surviving spouse an intestate share.6 2 At present, there does
not seem to be one satisfactory explanation as to why the Commission
went to the pains that it did to eliminate this provision."
One can also find rules included in the Code that are Ethiopian in
nature but are not necessarily developed directly from customary law.
Rules of this type were either developed independently by the expert
to reflect Ethiopian values or were taken, where convenient, from
some foreign law. One example is article 2067, providing that a per-
son shall be held liable for a bodily injury inflicted on another "without
fault"; this article was included to harmonize the Code with the
Ethiopian sense of justice.
5.Lack of Interpretive Guidance. During the drafting of his pro-
posed articles, Prqfessor David also prepared an expose des motifs, to
explain why he had chosen one provision over another. But lacking
a pre-existing body of law for reference purposes, he felt that it was
61. Commentators have generally missed the point with regard to this rule. See,
e.g., Sedler, Development of Legal Systems, supra note xi, at 582. The expert himself
was misled by the Codification Commission. See David, supra note 37, at 501.
62. The Fetha Nagast is clear on this matter: the wife was entitled to a share.
If a husband or a wife dies without having written a will, and does not have a
natural heir among either his ascendents, his descendents, or his collaterals, then
the husband is entitled to all the wife's property, and similarly the wife is entitled
to her husband's roperty. At the end of his collection, the Patriarch Abba Gabriel
has said: "Ifthere is a wife who has children, she shall be counted as one of them,
because Didascalia has said: 'Give the orphans the property of their parents and
the widows the property of their husbands.'" This statement says to give the
inheritance of the deceased to his children and to his wife. If no distinction is made
[in the amount] to be given to each, thiy will all be equal. And also, if one of the
married pair dies and leaves heirs other than his wife, but has no children to
succeed him, it is customary that half of the property which he left go to his wife
and the other half to those who are entitled to inherit."
Fetha Nagast 237-8.
63. The members of the Commission were all male and presumably still regarded
the woman's position as inferior. Alternatively, perhaps, the Commission may not have
been advising the expert on the Fetha Nagast, but on the general customary law. Yet,
as we have noted, the basic thrust of the Commission's advice in the areas of Family
Law and Successions was to incorporate the concepts of the Fetha Nagast into the Code.
It is unlikely that an about-face would have been made on as important an issue as
the surviving spouse's intestate share.
also necessary to prepare a more formal commentary. It would be

useful-indeed, essential-as a guide for judges. 4 This commentary
was to be prepared in easily understandable language by an Ethiopian
jurist, and would give examples wherever possible, in an effort to
relate the abstract to the concrete. It was hoped that this would insure
that interpretations of the Code would be uniform until a sufficient
body of case law could be developed by the higher courts and the
necessary doctrinal works could be prepared. In sum, it would seem
that the commentary as envisaged by the expert was indispensable for
the proper administration of the new Code. But this plan was never
brought to fruition; no commentary was published or even prepared.
In fact, only a small part of the expose des motifs was published 5
The expert proposed finally the inclusion of a concordance of articles,
placed at the end of the Code, containing references to the foreign
laws that had inspired the different parts of the Code. This idea too
was considered and dropped. The primary reason fo its abandonment
was that the Ethiopian Civil Code was to be a unitary law. Thus,
even though an article might be reproduced exactly as it appeared in
a foreign code, a reference to that code might be subject to an inter-
pretation which would be different from that intended for the Ethio-
pian version. References to foreign laws might well cause only con-
fusion in interpreting the Code.
As the situation developed, then, no aid was made available to the
Ethiopian jurist in interpreting the Code. Only the texts were made
public, leaving members of the judiciary with little or no guidance.
64. The judges, notably those in Addis Ababa, were often foreign, mostly British;
but whether foreign or not, individual judges had tended to apply the rules and tech-
niques of law with which they were most familiar. Moreover, at this time Ethiopia
had no institution for legal training. A number of courses were instituted by the
Ministry of Justice for the education of judges. These programs were conducted by a
group of Eastern European lawyers who were working in foreign advisory positions.
Unfortunately, the instruction was carried out in English, which eliminated a majority
of the judges from participation. In the middle nineteen-fifties, the first wave of Ethio-
pian University graduates had been sent abroad for legal training. Thus, there were
no competent Amharic speakers to undertake training. Haile Selassie I University's
Faculty of Law was founded in 1963. Now a number of extension courses have been
opened, with instruction in the Amharic Language, catering to persons involved in the
administration of justice, such as judges, prosecutors, and parliamentarians. See gen-
erally Singer, History of the Faculty of Law, Haile Selassie I University, i Balance &
Sword 22 (Addis Ababa z967); Singer, Legal Education at Haile Selaissie I University,
2 Balance & Sword 41 (1968); Sedler, Development of Legal Systems, supra note ii,
at 629 et seq.
65. The exposi des motifs of title IV, Bonds of Relationship by Consanguinity and
Affinity. R. David, Le Droit de la famille dans le code civil 6thiopien, app. I (1967).
C. Conclusion
At the time of this writing, the Code has been in effect for some nine
years. Most observers feel that it has not been applied outside the
High and Supreme Courts. This proposition may or may not be true;
apparently, no one has researched the question of whether the Code is
actually being applied and, if it is, of how its articles are being inter-
preted. One conclusion is clear: foreign materials are not being cited
in abundance. 6 It is not too early for scholars to start reviewing court
archives to determine the extent and manner in which the Civil Code
has embedded itself in the legal system. Then, and only then, will one
be able to evaluate whether modernization has been, as the Emperor
hoped, "the crowning achievement of Our life as a monument for those
generations that are waiting impatiently on the threshold of existence." 7
MODERNIZATION CONTRASTED
We have now seen how the Ethiopian government went about mod-
ernizing the civil law of the Empire. It would be helpful for purposes
of evaluating the probable effectiveness of that approach to view the
Ethiopian process in a comparative perspective. Two modernizations
have been chosen for comparison. The first, Turkey's, is the outstand-
ing example of wholesale reception of western law; and the second,
Kenya's, represents a rational program for the reform of family law.
A. The Turkish Incorporation

Modernization of the Turkish legal system began on February 17, 1926,
when the government ordered the Swiss Civil Code adopted and trans-
lated into Turkish. It was presented to the National Assembly, dis-
cussed, and voted on in a single meeting. Adoption of the Swiss Fed-
eral Code of Obligations and a new Code of Commerce followed in
May. All three of these Codes went into effect, after a brief transitional
66. The only known post-Code judgment that cites foreign law is Matmalingo$ v.
Zapala & Camusa Co., Civil Appeal 97/57, March 6, 5966, in which the vice-A/e Negus
in discussing the limits of employer liability cites "Planiol, English Translation," as a
treatise representing French law, and "Halsbury, Laws of England, 3 ed.," as represent-
ing the common law, in an attempt to determine which of two diverse interpretations
of the Civil Code's provisions is correct. Ethiopia does not have a case reporting system.
See Sedler, Development of Legal Systems, stepa note ii, at 629 n.310. (The Negarit
Gazeta is only a legislative, executive and administrative law reporter.) This decision is
on file in the library of the Faculty of Law, Haile Selassie I University.
67. Eth. Herald, supra note 24.
period, on October 4, 1926. Other codes followed, including a Penal

Code modeled on the Italian Penal Code of i889; a Civil Procedure
Code translated from the Code of Neuchaltel, incorporating additions
from the civil procedure code of the Canton of Berne; a Penal Pro-
cedure Code translated from the German; and finally, again from the
German, the Maritime Code, which went into effect on May io, 1928.
Thus, in the space of only a little over two years, Turkey received
seven codes that completely transformed its system of justice.
Carried out by "les Lausannois" (Turkish lawyers who had studied
law in European uhiversities), this Turkish reception did not actually
represent the nation's first attempt at law reform. Changes had com-
menced in 1839 (before which time the legal system had been based
on traditional Islamic principles). The codification process in Turkey
started when the Tanzimat, which separated out religious from national
law, 8 was adopted in 1839; there followed a Criminal Code (i859), a
Code of Criminal Procedure (i88o), a Commercial Code (185o), a
Code of Maritime Law (1864), and a Code of Civil Procedure (188i).
The influence of French law was discernible throughout these Codes.
A dispute arose, however, over whether the French Civil Code should
be adopted. As a result, the Medjelle of 1877, dealing with civil status,
obligations, and certain aspects of property and procedure, restated the
religious law.70 Family law and successions were omitted from codi-
fication and left wholly within the realm of that religious law. In
addition to this background of reform influenced by European law,
teaching of law along European lines dated back to i87o.71 Thus,
when the time came for a further modernization of Turkish law, past
experience -helped guide the decision that once again the nation would
look to foreign law.
Following the military victories of 1923, Turkish leaders decided
to create a new Turkey; between 1923 and 1926 much discussion took
place regarding the secularization of the nation.72 The first hint of
68. This represented a major departure from classical Islamic conceptions. See Ham-
son, Introduction to Symposium on the Reception of Foreign Laws in Turkey, 9 Int'l
Soc. Sci. Bull. 7, 9 (U.N.E.S.C.O. 1957).
69. See Velidedeoglu, The Reception of the Swiss Civil Code in Turkey, 9 Int'l Soc.
Sci. Bull. 6o, 61 (U.N.E.S.C.O. 1957).
70. Id.
71. Kubali, Modernization and Secularization as Determining Factors in Reception
in Turkey, 9 Int'l Soc. Sci. Bull. 65, 67 (U.N.E.S.C.O. 1957).
72. A number of laws were passed prior to the major reception of Swiss law which
began the trend. On April 8. 1924, the Islamic courts were replaced by ordinary civil
courts. November 25, 1925, marked the date of the legislation prohibiting the wearing
an impending major legal change came during the negotiations for

the treaty of peace held at Lausanne when the president of the Turkish
delegation admitted that the legal system of Turkey needed to be
modernized. By this time, the family law, which had been codified
in the Family Code of 1917, had been abrogated. As public demand
increased, the decision was finally made that the legal system would
be changed. The lobbying of the young intellectual "Lausannois"-
mainly Minister of Justice Mahmut Esat-convinced Ataturk that
the Swiss law should be used."3
There were, however, a number of rationales for this choice besides
the fact that the group in power had been trained according to Swiss
law. The wording of these codes was simple, clear, and precise, and
they were available in French, a language with which most educated
Turks were familiar. Also, there were good commentaries on the
law which could be translated and used by jurists. Finally, the prin-
ciples of family law were precisely of the type that the Turks wanted;
reorganization of the family was uppermost in the minds of the re-
formers, who favored monogamy, complete equality between the sexes,
and a strong notion of community property.
Since it had been decided that the change should take place as
swiftly as possible, the Swiss Civil Code was accepted almost verba-
tim.74 The major defect in the translation was the inconsistent manner
in which terminology was used. Also, since the French text which
was translated into Turkish was itself not a fully accurate translation
from the original German, the Turkish inaccuracies compounded some
which already existed." 5
Because of the short time between the decision to use the Swiss law
of the Fez, considered a religious symbol. On September 2o, 1925, religious institutions
such as monasteries and friaries were suppressed. For a full treatment of the activities
of reform under Ataturk, see Sauser-Hall, La Riception des droits europeens en Turquie,
in Recucil des travaux- Facult6 de Droit de Gen~ve 325, 329 (1938).
73. Esat had risen in Ataturk's ranks as chief of guerrilla operations in the war with
Greece. Along with that of some twenty other "Lausannois," his influence was decisive.
See id.; Hamson, The Istanbul Conference of September 1955: Preliminary Report,
6 Annales de ]a Facult6 de Droit dIstanbul 3, 8 (1956).
74. Omitted as irrelevant were provisions concerning the relationships of the Can-:
tons. Additionally, a number of minor changes were incorporated. Some typical ex-
amples follow: (s) the age of majority was made eighteen and not twenty; (2) the
minimum age of marriage was reduced to eighteen from twenty for a male and to
seventeen from eighteen for a female; (3) the Turkish woman does not lose her nation-
ality by marrying a foreigner; (4) divorce for desertion can be decreed after three
months, not two years; (5) a minor can testify at fifteen; the Swiss Code says at
eighteen. For further discussion, see Sauser-Hall, supra note 72, at 349-50.
75. See Velidedeoglu, supra note 69, at 62.
1970 / Modernization in Ethiopia
and its going into effect, judges were little able to study the new legis-
lation, and undesirable practices arose. Moreover, the assumption that
the new law responded to the needs of Turkish society was incorrect,
and many interpretations developed which allowed the old, customary
values of the society to be perpetuated.V ' A follow-up study done before
a 1955 Conference of the International Committee of Comparative
Law 77 produced results that are not at all surprising. The replies to
a questionnaire circulated to all governors working under the Ministry
of Interior indicated that, following promulgation of the Civil Code,
the number of irregular unions and illegitimate births had risen
sharply. Another inquiry, carried out by the Ministry of Justice, re-
vealed that of the 937 articles of the Civil Code only 335 had been
78
involved in litigation since the Code's adoption.
Alternative courses remain open to the Turks. One is that the Code
be amended to take into consideration the actual social values of the
nation, with a new code built realistically around the norms of the
society. The other course would be to embark on a grass roots program
of social reform to develop more effectively the institutions of a western-
styled society. It must be acknowledged, in either event, that changes
in attitudes and values must accompany formal westernization.
B. The Kenyan Dialogue

Another contrast to Ethiopia is presented by the limited reform project,
involving family law and successions, that Kenya began in April 1967.
Two Commissions were established, one for family law and one for
successions. The role of the Family Law Commission was
to consider the existing laws relating to marriage, divorce and

matters relating thereto:
to make recommendations for a new law providing a comprehen-
sive and, so far as may be practicable, uniform law of marriage
and divorce applicable to all persons in Kenya, which will replace
the existing law on the subject comprising customary law, Islamic
law, Hindu law and the relevant Acts of Parliament and to pre-
pare a draft of the new law;
76. See Belgesay, Social, Economic and Technical Difficulties Experienced as a Result
of the Receptions of Foreign Law, 9 Int'l Soc. Sci. Bull. 49 (U.N.E.S.C.O. i957).
77. See Hamson, supra note 73.
78. See Ulken, The New Civil Code and the Traditional Customary Law, 9 Int'l
Soc. Sci. Bull. 51, 51-52 (U.N.E.S.C.O. 1957).
to pay particular attention to the status of women70in relation to

marriage and divorce in a free democratic society.
This proposal differed from the Ethiopian (and the Turkish) approach
in that the Commission's mandate was to determine what kind of law
should be drafted for Kenya. The emphasis was not on the drafting
itself, but on the manner in which the values of a pluralistic society
could best be recognized while developing a uniform law. In announc-
ing the appointment of the Commission, the Attorney General stated:
The law of marriage is a subject which touches the everyday life
of all our people. In order that the Commissioners may produce
recommendations acceptable to all, it is essential that they should
receive the views of all sections of the community. I would there-
fore make a special appeal to all those individuals and organiza-
tions who wish to airtheir views to come forwardand give evidence
to the Commission or to submit their views in writing."0
To this end, the activities of the Commission from start to finish
involved the public. At its first meeting, on April 6, 1967, the Com-
mission decided that a questionnaire would be sent out to religious and
social organizations, representative bodies, and certain individuals, in-
viting suggestions for the improvement of the law relating to marriage,
divorce, and the status of women in matrimonial matters. One hun-
dred sixty-three questionnaires were returned."' Subsequently, the
Commission held public meetings in twenty-three different localities
throughout the country, allowing submissions to be aired orally. The
Commission heard some 357 people, many of whom represented local
or tribal groups and religious or social organizations. Because of press
and radio publicity, 146 memoranda were received by the Commission
from individuals and associations. It should be noted that the Com-
mission did not undertake this information-gathering in order to col-
late tribal practices; this was undertaken separately by the secretary
of the Commission, Mr. Eugene Cotran. 2
79. Commission on the Law of Marriage and Divorce, Report IV (Nairobi, x968)
[hereinafter cited as Kenyan Report IV].
8o. Quoted in E. Cotran, Restatement of African Law, Kenya: Marriage and Divorce
8 (1968) (emphasis added).
81. The Commission's procedure is discussed in Kenyan Report IV paras. x-5. How
many questionnaires were sent out is not indicated.
82. The -product of that research has recently been published as the first volume in
the Restatement of African Law series, under the general editorship of Professor Allott
of the University of London; E. Cotran, supra note 8o.
197o / Modernization in Ethiopia
The Commission in its deliberations also consulted the law of other

countries, mostly Muslim and African, to see whether there were any
ideas contained therein that could be useful to Kenya. It then tried
to draft a law that could be applied as uniformly as possible, taking
into consideration the Kenyan way of life, including the rapidly
changing nature of this mode of life and the presence already of a
great discrepancy between urban and rural conditions. For this
reason, the Commission was opposed merely to codifying traditional
laws, which would impede natural progress. It was most interested in
drafting a law that would as far as possible provide equal rights and
responsibilities for everyone and at the same time take into considera-
tion economic conditions and the requirements of a modern nation.
The ultimate goal was to promote stability of marriage and family life.
C. Ethiopia Contrasted
The primary difference, between the Ethiopian and Turkish processes
is to be found in the basic purpose for modernization. Turkey was
attempting to change its national identity from a feudal Empire to a
viable, modern European-type state. To accomplish this, its institu-
tions were radically altered. In Ethiopia, the intention was to create
a modern nation based as much as possible (though not exclusively)
on the existing norms of the society. A second contrast is that the task
of the Ethiopian codification was to create a unified system out of a
pluralistic one, whereas the Turks already had a unified system and
were attempting to change only the basic substantive nature, not the
structure, of that system.
Much of the actual processes undertaken in the two countries was
similar. In both a form of secrecy prevailed; the substantive changes
were not made known to the public until they had become faits accom-
plis. Moreover, in each instance, the decision to modernize had been
made at the highest level, with little or no general consultation; these
decisions were political - both countries lacked a modern western
aspect in their laws and considered this stigmatizing and unprogres-
sive.
In other respects, the Ethiopian process followed the Turkish ex-
ample but added further development. While the Turks engaged
just a committee of translators, in Ethiopia, though one of the primary
duties of the Codification Commission was to translate, it also had the
duty to review the work handed in by the expert in order to ascertain
HarvardInternationalLaw Journal / Vol. xi
that the provisions would be proper. (There is, as we have indicated,

some question as to how successful the Commission was in this re-
spect, and we shall further discuss the matter below.) Both processes
involved a major incorporation of European law, but while the Turk-
ish program involved the reception of complete codes, the Ethiopian
was more eclectic. While the contents of the Turkish code were merely
a reproduction of what was contained in one of the major European
codifications, the Ethiopians eliminated to a great extent the need for
supplementary legislation, by incorporating areas not usually included
in civil codes. The Turks made all the decisionis themselves, but these
largely involved simply adopting pre-existing codes; the Ethiopians
engaged a foreign expert to prepare drafts for them. The Turks ac-
cepted what they claimed was the simplified style of one of the major
codes; the Ethiopians attempted to produce a simplified style com-
patible with the needs of their jurists by adapting varying styles from
a number of the better known codifications.
Kenya brings a new dimension to the modernization process: demo-
cratic principles were utilized. The main emphasis was on how to
incorporate as many of the existing values as possible into a system
that could be representative of the society as a whole. Kenya's process
can be distinguished from Ethiopia's on two important grounds. First,
the process itself was more open; a truly representative picture was
drawn for the members of the Commission, from which they were to
reach their conclusions. In Ethiopia, on the other hand, the Christian
value was represented as the norm of the society and was to be retained
in its dominant position at the expense of Islam and any other existing
systems. Second, Kenya already had substantial experience from its
colonial period in dealing with and evaluating the usefulness of foreign
(English) law; Ethiopia had not.
A further difference lay in the attitudes taken towards the idea of
meeting deadlines. In Kenya, there was no time pressure; the em-
phasis was put on the "product," which was to be the result of rational
research and study. In Ethiopia, where, ironically perhaps, there had
never been any meaningful application of written substantive rules,
the emphasis was on codification in the shortest possible period of time.
Since the Europeanized Ethiopian did not have a "civilized" legal
system to help him define his right-duty relationships, it was felt that
the more rapidly the new system was imposed, the better it would be
for the Ethiopians as a whole.
197o
FAMILY LAW: UNIFICATION IN

A PLURALISTIC SOCIETY
The previous discussion attempted to elucidate the considerations in-

volved in preparing a code for a society like Ethiopia. To consider
how the Code was prepared, however, completes only half the task;
the product must be analyzed with a view toward examining its effec-
tiveness in unifying the pluralisitc society. To do this within the
confines of this study requires a certain delimitation: rather than
attempting to evaluate the contents of the entire Civil Code, the dis-
cussion will be restricted to a limited part of family law. Family law
has been chosen as the example, because this part of civil code law
interacts with the most personal values of the society. The aspects of
family law to be discussed have been chosen because of their impor-
tance to the regulation of interpersonal relations in any society - the
law respecting the creation and dissolution of the family unit.
As mentioned above, Ethiopia, in modernizing its laws, has attempted
to take cognizance of its own peculiar social values. Particular care, it
is claimed, has been taken to make title IV of the Civil Code, Bonds
of Relationship by Consanguinity and by Affinity, representative of the
existing values of the people. (How inclusive this incorporation has
been must also be considered.) At the same time, the system of family
law that has been elaborated in the Code is meant to appeal to persons
familiar with the European concept of family law. This dual emphasis
is intended to mollify criticism and self-consciousness about the "primi-
tiveness" of African family law.'
83. The African concept of marriage has differed markedly in certain respects from
that found in Western society. In Cotran, The Changing Nature of African Marriage,
in Family Law in Asia and Africa 15-33 (J. Anderson ed. 1968), seven basic differ-
ences are noted:
x. Polygamy has been generally accepted in Africa. The number of wives that a
man married was presumably directly related to and limited only by his economic
wealth. Only Islam restricted the number of wives to four. Christian sects, of course,
practiced monogamy.
2. The marriage has been regarded as an alliance between the families of the
spouses. The families negotiate the marriage and any agreement that is part of it;
no marriage can take place unless the families consent.
3. Many African marriages are burdened with complex formalities which can take
as long as several months. This often leads to difficulties in determining when the
marriage has actually taken place.
4. There is usually a provision for the payment of property, commonly referred
to as "brideprice," to the family of the bride.
5. In general, procreation has been emphasized as the end of marriage, and the
ability of a woman to conceive takes on special importance.
6. The woman has usually been considered socially inferior to the husband.
IOO
Our analysis of the results brought about by this process will include
three aspects of family law: the marriage ceremony, conditions of a
valid marriage, and divorce. We will focus on marriage ceremonies,
because here an attempt was made to include three diverse forms:
civil, religious, and customary. Conditions necessary to a valid mar-
riage will be considered to ascertain the effect of imposing European-
style conditions on longstanding concepts of customary marriage.
Finally, we will deal with divorce, because the Code provisions here
are much closer than elsewhere to the customary law, yet, at the
same time, they are obviously written to satisfy the needs of a Euro-
peanized society.
A. Conclusion of Marriage
In dealing with the marital union, an apparent concession was made
by the codifiers: religious, civil, and customary forms of marriage were
all formally recognized,8" bringing into the Code all the forms one
would normally find approved elsewhere. But, though all forms of
7. A marriage can be more easily dissolved. One does not usually find that
grounds of fault have to be cited; nor does there have to be a judicial decree. The
dissolution is usually controlled by the families of the spouses. When there is a
question as to whether a marriage should continue, there is usually a reconciliation
proceeding first.
See also Survey of African Marriage and Family Life (A. Philips ed. 1953). Cl. Regina
v. Amkeyo, 7 E. Afr. P.L. Rep. 14 (E. Afr. Ct. App. 1917):
In my opinion, the use of the word "marriage" to describe the relationship entered
into by an African native with a woman of his tribe according to tribal custom is a
misnomer which has led in the past to considerable confusion of ideas. I know of
no word that correctly describes it; "wifepurchase" is not altogether satisfactory,
but it comes much closer to the idea than that of "marriage" as generally under-
stood among civilized peoples.
84. The Ethiopian Civil Code states:
Art. 577. Various kinds of marriages.
i. Marriages may be contracted before an officer of civil status.
2. Marriages contracted according to the religion of the parties or to local cus-
tom shall also be valid under this Code.
Art. 578. Civil marriage.
A civil marriage shall take place when a man and a woman have appeared be-
fore the officer of civil status for the purpose of contracting marriage and the officer
of civil status has received their respective consent.
Art. 579. Religious marriage.
A religious marriage shall take place when a man and a woman have performed
such acts or rites as are deemed to constitute a valid marriage by their religion or
the religion of one of them.
Art. 58o. Marriageaccording to custom.
A customary marriage shall take place when a man and a woman perform such
rites as constitute a permanent union between such man and 'woman under the
rules of the community to which they belong or to which one of them belongs.
Z970 / Modernization in Ethiopia ioi
marriage are recognized under the Code, a prescribed set of condi-

tions that are common to all the forms"' may have the effect of under-
mining the intent to recognize any marriage institution other than the
Christian religious one. Before turning to this issue, however, it is
informative to examine the diverse forms of marriage that the Code
validates, focusing on the point in the ceremony when union is con-
sidered to occur 86
The Fetha Nagast regulates the form in which the Christian cere-
mony must take place 7 The Holy Eucharist must be offered at the
time of the ceremony; the prayer accompanying the taking of the Holy
Eucharist creates the union.88 The point at which the marriage is con-
cluded under the civil form is also easily ascertainable: a government
authority present at the traditional wedding ceremony repeats a short
statement. This turns a potentially customary marriage into a civilly
celebrated one. Since the promulgation of the Code, moreover, many
persons who want to celebrate a civil marriage simply go to a municipal
officer, who will perform the ceremony.
In customary marriage, it is difficult in many instances to discover
the point at which the bride and groom become husband and wife.
Among the predominantly nomadic and Muslim Arussi Galla, for
example, the ceremonial aspects provide a clear concept of when the
marriage is concluded. After a brief ceremony involving speeches given
85. Id. arts. 581-96.
86. The Kenyan Commission recommended that people should be permitted to marry
in a civil ceremony before a registrar, or in a religious ceremony, including one of
Islamic form, or through traditional customary rites-that is, the people could choose
the same ceremony that existed previously. The rights and obligations of marriage
and the matrimonial relief available were not to vary with, the form of the marriage.
Kenyan Report IV.
87. In Christian Ethiopia, marriage as regulated by the Fetha Nagast was the only
recognized legal form. In the great majority of instances, however, marriage was cele-
brated outside the church according to the simple customary *form, without the inter-
vention of the priest or the Holy Communion. The codifiers felt that the civil validity
of marriage would be most important for the future but, at the same time, felt that
this did not necessitate the disappearance of religious or customary marriage. Under
the Code, all persons entering into a marriage, regardless of the form, are to record
the marriage civilly. The registers did not exist at the time of the drafting, nor do
they exist today. Although a dual system had been provided for urban (arts. 6o-63)
and rural (arts. 64-70) locations, the Register of Civil Status did not start functioning
immediately. Article 3361 defers the coming into force of the register provisions until
"a day to be notified by Order published in the Negarit Gazeta." Until the order is
published, proof of birth, marriage, and death are made by acts of notoriety in accord-
ance with articles 146-r53 of the Civil Code. Since the persons capable of drawing
up the acts of notoriety are available only in the large urban areas, Addis Ababa and
Asmara, the substitute provisions do not fill the gap that is left by deferring institutionali-
zation of the registers.
88. The prayer actually states "be you one." Even though the Fetha Nagast refers
HarvardInternationalLaw Journal / Vol. zi
by the bride's father -separately, first to the bride, then to the groom,
and finally to the two of them - all stressing mutual responsibility
and kindness, the mother of the bride throws thr berries of a sweet
fruit onto the fire. When the berries burst with a loud crack, the
mother calls out, "the berries have spoken - the ceremony is finished."89
The marriage is sanctified when the berries burst.
The ceremony among the Gurage is somewhat different. It again
takes place in the house of the bride, and her father plays the prin-
cipal role. After extensive feasting and drinking, the father of the
bride presents his daughter to the bridegroom. He makes a short
speech on the meaning of marriage and announces that his daughter
is to be given to the groom. He blesses the girl alone first and then
both of them together. They then leave with a group of young friends
who sing and dance around them until they reach their new residence,
located in the vicinity of the house belonging to the bridegroom's
father. The point at which the Gurage bride and groom become
spouses is less clear than that of the Arussi Galla. Since there is nothing
in the ceremony which specifically can be taken as the sanctification of
the marriage, one would have to look to the ceremony as a whole in
order to find some validating element.
In the urban setting of Addis Ababa or Asmara, the marriage "cere-
mony" may take two forms. The first may, be considered closer to
the western concept of an irregular union -the boy meets the girl,..
he has sexual relations with her, she becomes pregnant, and they set
up a household. This is usually envisaged as a permanent relationship,
and, if a "divorce" is sought, the parties will go through the same
procedure as though all the special formalities of a valid civil or reli-
gious marriage had been satisfied. But it would be unusual for the
courts to recognize this form of marriage as valid.90 One would have
to argue that the relationship becomes a marriage when there is an
openly declared intention exhibited by the parties to remain perma-
nently together, and when they openly declare themselves to be hus-
only to this single form of marriage (Kurban), a second form of religious marriage has
developed (Teklil) that does not involve taking the Eucharist. The latter marriage is
more easily dissolvable. The former, however, can also be dissolved. Fetha Nagait
148-54. See Shewan Ghizaw Ingida Worq. v. Nigatu Yimcr, reported in 3 J. Eth.
L. 390 (1966).
89. See generally Wakefield, Marriage Customs of the Southern Galla, x8 Folklore
39 (19o7).
go. The Code (arts. 7o8-2x) recognizes an irregular union, and this "marriage"
would more likely come under those provisions.
band and wife. Without the concurrence of these two factors, it is

doubtful that even the most liberal of courts would declare this a
valid customary marriage. Moreover, it could be years before a declara-
tion by the parties were forthcoming.
The second and more usual form of urban customary marriage in-
volves two persons from each side negotiating with regard to the kind
of dowry that the groom will pay for the bride.' Once the negotiation
has been completed, day-long ceremonies begin: a luncheon feast,
singing and dancing, a blessing by the father of the bride or by the
local priest, a procession, a second feast, more singing and dancing, a
serenade, and so on. Again, the point during the day-long ceremony
when the marriage becomes legal is unclear.
At any rate, when the exact time of union is unclear, it would seem
that the ceremony as a whole should be considered as the unifying
force. What is important is a recognition by society that the two per-
sons have been united: their offspring will then be recognized as legiti-
mate,92 and certain obligations of mutual support and consideration
will have been created.
B. Conditions of Marital Validity

The basic conditions necessary to a valid marriage, as prescribed by
the Code,93 have to be carefully studied to determine whether or to
what extent the pre-Code religious and customary marriage institu-
94
tions have been undermined.
s. Age. According to the Code, a man may not marry unless he has
attained the full age of eighteen years; the woman must attain fifteenY5
If there is good cause, a dispensation may be granted, but only to the
extent of reducing the age limit two years and then only by the Em-
95. The Kenyan Commission thought that dowry should continue to ilay an im-
portant part in the African conception of marriage, but only as a social custom. That
is, the validity of the marriage (or divorce) should not depend on the giving (or re-
turn) of dowry. The amount of the dowry, the Commission agreed, should be strictly
a matter for negotiation between the families involved, unregulated by law. Kenyan
Report IV.
92. It should be noted, however, that legitimacy or illegitimacy does not affect suc-
cession rights. Eth. Civ. Code art. 836(1).
93. Sce Eth. Civ. Code arts. 581-96.
94. The Kenyan Commission was anxious that marriages entered into in good faith
should not be invalid in law. While it was felt that certain grave matters should make
the ceremony a nullity ab initio and others should enable a party to seek annulment
in the courts, mere formal defects-such as lack of notice or irregularity in the cere-
mony-should not affect the validity of a marriage. Kenyan Report IV.
95. Eth. Civ. Code art. 58x(i).
HarvardInternationalLaw Journal / Vol. iz
peror or someone especially appointed by him for that purposeY0 The

Fetha Nagast allowed the male to marry at the completion of the
twentieth or the twenty-fifth year, depending on social status,97 and
the female upon completion, similarly, of the twelfth or fifteenth year.
Among the various customary laws, the general rule is that a girl
may marry at puberty, and the boy at approximately fifteen, a few
years after he has entered puberty. This corresponds to the ages at
which they have learned the functions of adulthood (i.e., household
duties for the girl, agricultural tasks for the male).
The situation in the urban centers has changed with growing moder-
nity. If a child is in school, he waits until he has finished his education
and is able to marry someone of his educational level. The boy who
completes ten grades will be in school until he is approximately six-
teen. It is unusual for him to marry upon leaving school, as he will
usually want to find a job and be in a position to assume the responsi-
bility of supporting a family in advance of actually doing so. It is also
unlikely that an urban girl, even having the barest minimum of educa-
tion, would marry before she reaches sixteen. The young girl in the
urban center, however, who has not been to school by the time that
she is entering puberty will be treated no differently from the young
non-educated girl of the countryside; her family will attempt to marry
her off as soon as possible, it being unlikely that they will be able to
attract a person from a higher status group than themselves.
Clearly, the existing "rule" that children marry at or just after they
have entered puberty is a violation of the provisions of the Civil Code,
and a conflict seems unavoidable. Thus, when a elder of the southern
part of the Empire was asked at what age the children in that area
of the country marry, he responded, "at puberty." Upon being told
'that the new law of the Empire forbids a marriage below eighteen for
a male and fifteen for a female, backed up by the sanction of a criminal
penalty,9" the elder responded that there would be no way of changing
96. Id. art. 581(2). The Kenyan Commission recommended that a minimum age
for marriage be sixteen for girls and eighteen for men. In special circumstances, the
court may lower these ages, but never below fourteen. Kenyan Report IV.
97. The age of twenty applies to the sons of wealthy families, presumed to be learned
enough at that age. The age of twenty-five applies to the poor and unlearned young
men. The same reasoning applies to the ages given for women. See I. Guidi, supra
note 2, at 239.
98. Eth. Civ. Code art. 607(2); Eth. Penal Code art. 614. It is an intentional offende
to conceal from a spouse a fact that would annul or invalidate the marriage on grounds
specified by the civil law. Legal proceedings cannot be instituted, however, unless the
marriage has been annulled. Likewise, the person who solemnizes the marriage is
the practice at this time. He did add, however, that many more people
in the district had been accepting the notion of education and even
allowing their female children to enroll in the local government school.
He felt that the educational process would help change the practice
whereby children marry at puberty.
There is certainly some substance to the view held by the elder.
Since universal education has yet to be introduced and much of the
Empire is still too isolated to know the integral workings of the Civil
Code, the age condition for marriage will be meaningless for some
time to come; those tribes that are entirely rural will continue *to
apply their own standards.
2. Exogamous Limitations. The Civil Code prohibits marriage be-
tween persons related by consanguinity or affinity. 9 The extent of
regulated consanguinity is from a common ancestor seven generations
back from each prospective partner - "fourteen degrees."1 ' The re-
stricted extent of affinity runs along a direct line between a person and
the ascendants and descendants of his spouse, and between the person
and the collaterals of his spouse, but there only to the third degree.'0l
Before examining the predictable effect of these provisions, it should
be noted how the original prescriptions of the expert were altered.
The original draft of article 555 stated that the bond of affinity would
in the collateral line cease to have legal effect if the union which created
it were dissolved. While the Codification Commission accepted this
punishable if he intentionally allows his office to be used while knowing of the con-
cealment or fact withheld. id. art. 6s 5 . No criminal prosecution has been discovered
involving either of these Penal Code articles.
99. I.e., by a common blood ancestor or by a common marital linking. Eth. Civ.
Code arts. 582, 583.
ioo. Id. art. 55.(x). The different language versions of the Code here do not agree.
The French says (the writer's translation): "The degree of consanguinity is calculated,
in the collateral line, by counting the generations up to the common ancestor, tnd by
adding to it the number of generations which separate the common ancestor from the
person with whom one wishes to establish the relationship of consanguinity." The
French version continues, in article 551(2), to state that "relationship by consanguinity
has no effect beyond the seventh degree." The English (and, Amharic) version is dif-
ferent. There it is established that the relationship of consanguinity exists by counting
seven generations in each line from the common ancestor (with the same calculation
technique employed as in the French version). This seems to mean that the relation-
ship of consanguinity exists up to the fourteenth degree (calculated by adding the gen-
erations from one person to the common ancestor to the number of generations from
that ancestor to the other person-seven generations in each direction equals fourteen
degrees allowed). Article 551(2) substantiates this view by using the word generation
instead of degree ("Relation by consanguinity shall be of no effect beyond the seventh
generation").
sos. Id. art. 553.
HarvardInternationalLaw Journal / Vol. rr
proposal, the Parliament reversed it. Likewise, in the original draft of

the Code, the prohibition of marriage between ascendants and de-
scendants, brothers and sisters, and relatives by affinity in the direct
line included no possibility of dispensation. The Commission intro-
duced a dispensation for marriages between relatives by consanguinity
in the fourth through seventh degree, and between relatives by aflin.
ity in the collateral line. Parliament, however, deleted the articles
granting the dispensations.
It is not clear why Parliament made such changes. The source of
10 2
the provisions provided by the Commission was the Fetha Nagast,
and they would have enabled many customary practices, such as levi-
rate,103 to continue. But perhaps as they did not represent a purely
Christian norm they were found wanting. The real thrust of these pro-
hibitions is to prevent marriage among many of the rural tribe mem-
5o2. The provisions of the Fetha Nagast are much more detailed in prohibiting
marriage between related persons; the relationship of consanguinity exists between
ascendants, descendants, and collaterals. Nor does the blood relationship have to arise
out of a lawful marriage. Fetha Nagast 134. It is unclear, however, whether con-
sanguinity prohibits marriage up to and including the third degree, or up to and
including the sixth. See id. 134-35. Relationship by affinity prohibits marriage when
it is direct, i.e., between the ascendants and descendants of the spouse, and when in die
collateral line up to and including the third degree.
A number of variants exist in the customary law. Cambata law allows marriage to
take place only between the children of unrelated clans. The law does not regulate
relationship by affinity. Among the Gurage, there is also no problem complying with
the degrees established by the Code. Marriage represents kinship ties that link two
segments of otherwise unrelated clans. See W. Shack, The Gurage: A People of the
Ensete Culture 120 (1967). In the north of the Empire, the same rule would seem to
apply: it is impossible legally to marry within the same clan. In Hamasien, Eritrea,
where land is held communally, it is forbidden to marry among the conjugal families
owning land in common. C. Conti Rossini, supra note 39, at 2o5. Among the urban
population, the practice varies according to the person's status. As the population of
Addis Ababa is a polyglot mixture representing most tribal groups of the Empire, much
tribal intermarriage takes place. Those among the Amhara aristocracy would generally
follow the prescriptions of the Fetha Nagast. Especially among the educated, the marital
partner would not likely be one with whom either an affinal or consanguinous relation-
ship would exist. Those among the lower status groups, who retain to a large extent
their tribal identity, would more than likely try to match their child with a person
having the same tribal affiliation. It is in this group that the marriage prohibitions be-
come most meaningful in the urban context. As there may be only one segment of the
tribe which has immigrated to Addis Ababa, in order to marry off a child it might be
necessary to marry with a person related by consanguinity or affinity.
103. This is a practice whereby the brother of the deceased will marry the widow and
bring up her children. In Ethiopia the practice of levirate can generally be found among
those tribes that have a rigid clan structure. At the time of the marriage, the bride
leaves her father's clan permanently. Any duty of maintenance and care must be pro.
vided by the husband or the members of his clan (usually, the duty will fall to the
extended family). Those tribal groups which practice levirate are Gurage and Cambata.
The practice is also found in certain areas of Christian Ethiopia, the source being the
Old Testament. J. Trimingham, supra note 35, at 29.
bers whose law allows marriage by persons related closer than seven
degrees, though tribes like the Gurage or Cambata, which prohibit
marriage by persons of the same clan, will not be affected. Two other
Code provisions, however, could interfere with the latter's existing
customs - the prescription of marriages among collaterals who are
related by affinity closer than the third degree; and the requirement
that the bond of affinity continue notwithstanding termination of the
marriage that created the bond. The former acts to forbid the Cambata
practice of allowing a brother to marry the sister of his brother's wife.
More significantly, the latter prevents the levirate, which is a very im-
portant part of the social pattern of some rural tribes; and to undercut
it is to undermine a basic value. That part of the Code represents an-
other instance where the desire for incorporation of western-style values
has created a conflict between the Code provisions and social reality.
3. Monogamy versus Polygamy. Article 585 of the Code is short and
explicit: "A person may not contract marriage so long as he is bound
by the bonds of a preceding marriage." Thus, Ethiopia is to be a
monogamous country.'0 4 It is clear that Christian ethical values have
been incorporated into the Code at this point; an attempt to make a
concession for the polygamous Muslims did not come to fruition1 5
Polygamy, of course, has long existed in the Empire. Both Muslim
and customary law recognize it. And one can find polygamy in Chris-
tian communities as well, though this is in violation of the Fetha
00
Nagast.' That polygamy which is sanctioned by customary law is,
104. Compare the conclusion reached by the Kenyan Commission that, though it
considered polygamy undesirable and thought that any justification for it that there
may have been in the past was now gone, it did not recommend that polygamy be
abolished by law. Social and economic forces, it believed, would cause polygamy to
die out. Kenyan Report IV.
xo5.In the drafting of the Civil Code, an attempt was made to respect the legal
provisions of the Koran, to satisfy the large minority of Ethiopian Muslims: title XXII
was drafted for chapter III, which contained "special dispositions for Muslims." These
thirty-three articles were, however, never included in the Code. See R. David, supra
note 65, at 5. Title XXII was presented to the Codification Commission during the final
stage of the Codification process. The Ministry of Justice was occupied with Parliamen-
tary hearings dealing with another Code, and the translation services of the Ministry were
hurriedly trying to prepare the Civil Code for submission to Parliament. Apparently,
the decision not to include the title was made on the basis of a tight schedule; the
Civil Code was supposed to appear at the same time as the Commercial Code.
io6. "A man shall not have two wives, for this pleasure and the contracting of many
marriages serve to gratify concupiscence and not to beget offspring as God ordered."
Fetha Nagast 144. Even in Christian Ethiopia, however, custom often recognized polyg-
amy. For example, an already married man would often, by inheritance, marry his
brother's widow. C. Conti Rossini, supra note 39, at 189. Although as far back as 1543
HarvardInternationalLaw Journal / Vol. zi
however, disappearing' 07 Among the Gurage, for example, where the

institutional effect of polygamy results in a separate homestead for each
wife, land shortage seems to be a major cause of its decline.' Among
the Arussi Galla 0 9 the practice is also declining. Formerly, whn
this group was composed of nomadic pasturalists, a man would keep .s
many wives as his status allowed. Now that the Arussi Galla have be-
come predominantly sedentary, the problem of land availability h.is
caused the institution to wane among them as well. Land seems to be
the important factor in causing polygamy to decline among the peasant
class in rural areas;"' in urban areas, the main cause of the decline
seems to be the economic pressure that polygamy places on the husband
to satisfy the needs of his wives. Given that polygamy is disappearing
for practical reasons anyway, it does not seem that it was necessary to
attempt to legislate it out of existence at this time or proper to impose
a criminal sanction for its practice."'
4. Consent. Many commentators have viewed the African marriage
as a marriage between families, one of convenience, allowing no dis-
cretion to the future spouses. To a certain extent, this is true, as the
parents do make the decisions that lead to the marriage. According
to the many customary concepts of law, the son or daughter does not
have the right of refusal. The Fetha Nagast, on the other hand, deems
the Emperor Galawdewos formally prohibited marriage to two women, one can find
references throughout the Royal Chronicles ("Queens of the right" and "Queens of the
left") that indicate that the Emperor himself, who was also the representative of the
church, was polygamous. Id. at 19o. Moreover, the courts themselves seemed to have
tolerated polygamy among the Christian community. See Book of Old Judgments, No.
5608, at I129; No. 18, at 4; No. 21, at 5; No. 4, at i.
107. This is true throughout the world. See J. Anderson, Islamic Law in the
Modern World ch. 5 (1959); Anderson, The Future of Islamic Law in BitLsh Com-
monwealth Territories in Africa, 27 Law & Contemp. Prob. 617 (x962).
xo8. See W. Shack, supra note 102, at 67.
io9. There is some disagreement as to the extent and reasons for polygamy among
the Arussi. See Wakefield, supra note 89, at 323; J. Trimingham, supra note 35, at
208; D. Azais & R. Chambard, Cinq ann&s de recherches arch ologiques en Ethiopie
212 (193'); C. Harris, The Highlands of Ethiopia iii (1844).
izo. In general, among the tribal leaders one still finds polygamy widely practiced;
the leaders are able to maintain the economic strength to keep equal homesteads for
several wives.
iii. The Penal Code, in article 616, recognizes the offense of bigamy. Article 617
the "Exception to Bigamy," states that the article allowing the prosecution of bigamy
"shall not apply in cases where polygamy is recognized under Civil law in conformity
with tradition or moral usage." This exception now is relatively meaningless, as there
is no exception under the Civil Code: Ethiopia is formally monogamous. At the time
of the Penal Code's drafting, it was envisaged that an exception would be incorporated
into the Civil Code that would allow then polygamous persons to continue the practice.
i97o / Modernization in Ethiopia
consent to exist only when both the spouses and their parents or guard-
12 3
ians consent. '1
The Civil Code provides that, as in any other contract, the parties
(spouses) must give their personal consent to the marriage.114 Repre-
5
sentation is not allowed, unless the party to the marriage is a minor."
Consent is vitiated by violence or an error of substance." 6 The parallel
between the Code and the Fetha Nagast is clear. The divergence from
custom is equally clear. Under the customary law of the Amhara and
112-13. Fetha Nagast 142. The father cannot force his son to marry should the latter
wish to'live a life of celibacy (chastity is not, however, linked to the Ethiopian clergy,
who may marry). If the son has lived "dissolute[ly]," however, he must obey the com-
mand of his father to marry. Id. at 141. Once the son has consented to marry and the
father has presented to the future bride her wedding outfit, the son may not then
refuse. Likewise, if the father decides to give his daughter (or his granddaughter) in
marriage and he has presented her with a wedding outfit, her refusal means that she will
be disinherited. Id. at 141. Like the Code, the Fetha Nagast has provisions providing for
the vitiation of consent through the use of violence and errors of substance. An example
of an error of substance would be a mistake as to another's religion (under the Fetha
Nagast, a Christian may marry a non-Christian woman, provided that she embraces
his faith, id. at 144). Another example would be any impediment to the carnal union
discovered only after marriage. At the age of twenty-five the male no longer needs
parental or guardian consent. A woman who has attained the age of twenty-five may
dispose of herself as she wishes. Id. at 143. But if she is not independent of her
family and her parents do not consent to her marriage, she must ask the courts for a
judicial order recognizing her ability to marry. Her parents must then provide her
with a marriage outfit in accordance with their means. Id. at 141. See also Book of
Old Judgments, No. 5626, at 1134.
114 , Eth. Civ. Code art. 586(1). The Kenyan Commission recommended that no
marriage be considered valid unless both parties enter into it of their own free will.
They also recommended that parental consent be required up to the age of twenty-one,
though for other purposes the age of majority was to be eighteen. Kenyan Report IV.
115. Eth. Civ. Code arts. 587, 309(1), 562.
i6. Id. arts. 589, 590. The Code carefully defines what is meant by violence in
article 589(2): a threat of grave and imminent evil to oneself or family. The evil may
be moral or material. See Buhagiar, Marriage Under the Civil Code of Ethiopia, x J.
Eth. L. 73, 74 (1964). Consent is not vitiated where it is prompted by reverential
feeling towards an ascendant (father or grandfather) or a person standing in loeo
parentis. Eth. Civ. Code art. 589(3). Apparently, however, belief that an evil spirit
will strike a person down should he disobey an order to marry does vitiate consent.
Errors of substance include: (a) an error as to the identity of the spouse; (b) an
error as to his religion; and (c) an error regarding his state of health. Id. art. 59!.
The provision on error of identity is clear: it refers to physical identity and not a
personality defect, social status, or financial means. An error of religion vitiates con-
sent only when the religion of the spouse is different from that of the person who has
made the error. For example, if a Christian marries a Christian, though believing she
is a Muslim, consent is not vitiated. The vitiation of consent in matters concerning the
state of health occurs only when the spouse, believed to be healthy, is suffering from
leprosy or where the organs necessary for the consummation of the marriage are not
present. The expert's draft of article 591 merely provided for the mistake of physical
identity and specifically eliminated errors of religion, nationality, and race, state of
health, physical and moral characteristics, and judical record. The Codification Com-
mission amended the avant projet to its present form. R. David, supra note 65, at 57-
the Galla, the spouse will not be consulted. The parent will arrange
the marriage, and the child is expected to obey and generally does.""
(The penalty for disobedience is usually disinheritance.) It is unlikely
that this norm will change rapidly. Requiring affirmative consent by
the parties to the marriage imposes a burden that many are not ready
to accept. Even within the educated class, there is a general depen-
dence on the approval of the parents before active steps are taken to
enter into the marital relationship.
In sum, this particular Code provision ignores reality. It would seem
important for stabilizing marital unions to take cognizance of how
they are actually conceived. One would expect, at the least, a set of
alternatives which would allow the marriage to take place validly
without the articulated consent of the spouses; acquiescence to the
wishes of the parents could be enough. This would merely be recog-
nizing a social reality of the most basic nature.
C. Divorce
.r. Matrimonial Causes. It should be noted at the outset that celebra-
tion of marriage recognized under one of the three forms does not
control the manner in which it is dissolved."' All marriages are dis-
solved similarly. The Code makes a distinction between fault and non-
fault, or between "serious and other causes."' " There are four serious
causes: adultery,' 2 0 desertion,' lunacy,' and annulment of a reli-
gious marriage. 2 Each of these causes must be proven by the petition-
157. See Y. Heroui, Code and Customs in Ethiopia 9 (1969) (unpublished manuscript
in author's possession). Infrequently, the child will ask some of the elders of the com-
munity to intercede for him and persuade his father against the marriage.
xs8. Eth. Civ. Code art. 662. The Kenyan Commission recommended that divorce
should be obtained only by decree of a court. There should be no divorce by consent
and no divorce at all unless there has first been an attempt at reconciliation by a
responsible body. The parties should be allowed to choose their own tribunal, such as
a church council or council of elders, or go before a marriage tribunal set up by law.
There would be only one ground for divorce- that the marriage had broken down
beyond all hope of repair-and the court would have to decide this matter after con-
sidering all the circumstances. Matters such as adultery or cruelty would be relevant as
evidence, as would the pronouncement of talaqs in a Muslim household. Kenyan Re-
port IV.
519. Eth. Civ. Code arts. 667, 668-671, 673.
120. Id. art. 669(r).
121. Id. art. 669(2).
122. Id. art. 670(a).
123. Id. art. 671. There has been a dispute over the applications of this article.
See Shewan Ghizaw Ingida Worq v. Nigatu Yimer, reported in 3 J. Eth. L. 390 (1966).
This dispute has centered on the continued authority of the Christian Church to handle
i97o / Modernizationin Ethiopia III
ing party before divorce can be decreed. "Other" matrimonial causes

means simply that a complete breakdown of the marriage has occurred.
There does not have to be proof of a specific cause.
1 24
Under the Fetha Nagast, marriage may be dissolved on three
grounds: if the husband and wife choose a religious life (as monk and
125 2
nun) by mutual consent; if the carnal union is not performed;1 1
and if the "mutual help" that renders life less burdensome and more
agreeable is not attained. 12 7 The first cause is self-explanatory. The
second arises if the carnal union is not performed because one spouse re-
fuses to submit to the other; or if one of the spouses is unable to perform
12s
the carnal union because of a physical or mental defect. The third
category is divided into a number of sub-classifications, some of which 129
generally correspond to the serious causes of the Code: adultery,
disputes in religious marriages. The Code is clear: divorce is decreed uniformly, re-
gardless of the form of marriage. Eth. Civ. Code art. 662. Those close to the Church
hierarchy claim that the power to deal with material disputes lies exclusively with the
church, the Code articles to the contrary notwithstanding. For a discussion of the
position taken by the government on this matter, see Singer, Dissolution of Religious
Marriagesin Ethiopia,4 J. Eth. L. 205 (1967).
124. It is clear that the Fetha Nagast is not simply referring to divorce proceedings.
Many of the causes contained therein refer to annulment, though no distinction is made
between that and divorce. It should be noted that causes which impede the marriage
union from being validated are also discussed in the sections on dissolution. An im-
pediment to the carnal union is one example. It appears that there was no concept of
annulment when the Fetha Nagast was first drafted; the early provisions regulated only
causes for divorce.
125. Fetha Nagast 148.
126. Id.
127. Id. at 149.
128. Id. at 137. If the male is unable to perform the carnal union because of a
mental impediment, he must stay with his wife for a period of three years after his
first attempt, and if at the .end of the period he is still incapable, the wife and her
relatives are permitted to dissolve the union. Id. at 149. If the man finds the woman
lacking some necessary sexual element, after the marriage is performed, he informs her
of this and reports the matter to a member of the clergy. This priest shall have the
power to dissolve the marriage, allowing the man but forbidding the woman to re-
marry. Id. at 150. If the husband, however, was aware of her condition before he
consented to marry her and then attempts to perform the union, he shall be reproached
for his action. The marriage will be dissolved and the husband prevented from re-
marrying, unless it is feared that he would then do further "shameful acts." Id.
129. Id. at 149. There is considerable confusion with regard to the Fetha Nagast
provisions concerning adultery. In particular, it is not entirely clear whether a single
act of adultery by the husband will give rise to a cause for divorce. Probably, the wife
may petition only if the husband persists in the practice. In the Fetha Nagast, a woman's
act of adultery consists of drinking with another man against the wishes of her hus-
band, or bathing, joking, going to a "hunting place" (a place where the devil lays
snares to involve people in sin), or going to any gathering while her husband is absent.
Spending the night out of her home in another house is also regarded as adulterous. Id.
at 152.
112
HarvardInternationalLaw Journal / Vol. ix
130 32
"violence,' desertion,13 ' and "sickness.'
Customary law in general outlines no specific matrimonial causes.
In certain customary systems, fault must be alleged and proved to
show breakdown, and certain reconciliation attempts are usually obliga-
tory. Often, the husband's mere allegation of adultery is sufficient to
terminate the marriage. The treatment of adultery in systems depen-
dent upon customary law is premised on the idea of male superiority.
If the wife commits an extra-marital sexual act, the husband can peti-
tion for divorce and send her back to her parents; but the same cause
raised by the wife can at best lead to a small indemnity that the hus-
band must make to her. 33 A wife usually will not even petition for
a divorce on the basis of her husband's alleged adultery. 8 4 This atti-
tude is presumably attributable to the general acceptance of polygamy.
Infertility is also an accepted cause for dissolution, as the procreation
function of marriage is not being lulfilled.
In the northern areas, where the majority of the population is Chris-
tian, matrimonial causes not necessarily congruent with those of the'
130. "Violence" includes physical injury, long lasting quarrels, or a scheme against
the life of the other. If either of the spouses plans to harm the other, or knows that
certain individuals are planning to harm the other and fails to alert him, the marriage
can be dissolved. In addition, if the husband connives to cause his wife to commit
adultery but does not succeed, on the testimony of witnesses she can leave him. Id. at
153. Longstanding enmity generally means that a serious rift has developed between
the families of the two spouses.
131. Id. Desertion includes situations where there is no news from or about an
absent husband for a period lasting five years because of his imprisonment or capture
by an enemy during a period of warfare. Id. at i5.
132. "Sickness" refers to the wife's being "thrown to the earth by the devil," id. at
151- that is, she is possessed by a spirit. Although one finds persons "possessed by
spirits" throughout Ethiopia, they have not generally been accepted positively by Chris-
tians. The usual Christian referent to a spirit is Zar, connoting a possession by the
devil. For a thorough discussion of the Zar Cult, see Messing, Group Therapy and Social
Status in the Zar Cult of Ethiopia, 6o Am. Anthropologist 1520 (1958), reprinted in
Magic, Witchcraft and Curing (J. Middleton ed. 1967). If this condition existed be-
fore the marriage was entered into and was kept secret from the husband, he can have
the marriage dissolved. Fetha Nagast 55o. If the husband himself is afflicted with the
condition after marriage, the wife must learn to understand and have patience. Id.
Should the wife contract this condition from her husband, however, he may divorce her
unless it has arisen after they have "cohabited . . . for a long time." Id. If the wife is
afflicted with leprosy or sores after the marriage, the husband may petition for a divorce.
Id. If the leprosy existed before the marriage and the non-afflicted spouse was unaware
of its existence, the marriage can be dissolved. Dissolution in the case of leprosy is
never mandatory and is always left to the discretion of the non-afflicted spouse. For
most of the other matrimonial causes the language of the Fetha Nagast is mandatory:
there is no alternative to dissolving the marriage, because of the wrong that has taken
place.
133. See C. Conti Rossini, Historia Regis Sarsa Dengal (Melak Saged) 267 (French
Text 1907) 267.
134. See W. Shack, supra note io2, at 125.
Fetha Nagast exist. For example, dissolution could take place simply
because, after a stated period of time, the marriage had not been con-
summated;13 5 this would be in addition to non-consummation because
of a physical or mental defect. Moreover, if the husband at the time
of the marriage thought that his wife was a virgin and then found
that she was not, he could usually petition for a divorce.
In the urban setting, the dissolution of a non-religious marriage
has not been considered very serious. Presumably, the decline in social
importance accorded to the extended family created by the marital
bond has influenced this view. Emphasis now rests on the conjugal
unit, with the conclusion that only two people's lives are affected by
the dissolution. In the rural areas, on the other hand, the families of
both spouses are very much involved in the status of the marriage.
There are, of course, other reasons for the urban-rural contrast. For
example, in the urban metropolis, it is not unusual for a marriage to
break down following the birth of a child, if the husband assumes a
secondary role in the life of his spouse and perhaps starts spending his
spare time with prostitutes. 36 If a relationship with a prostitute
becomes a regular matter, then the wife may petition for divorce. But
it is unusual for the wife to cite adultery as a cause for divorce unless
full desertion is involved. Relationships with prostitutes often coexist
with married life, as a sort of substitute for polygamy in the urban
37
setting.
With regard to the Code's recognition of the norms prevalent
throughout the society, one can be more optimistic here than else-
where. The double standard of fault and non-fault indicates that the
divorce laws of the various systems have been left intact. -The non-fault
cause is clearly more important in this respect. For example, the claim
that the bride was not a virgin may be a special cause for divorce
which is not generally accepted elsewhere. As long as the cause is
responsible for the breakdown of the marriage, however, it suffices
135. C. Conti Rossini, stepra note 133, at 263.
136. There are a large number of prostitutes in Addis Ababa. Informal estimates have
suggested that there may be as many as one for every ten or twelve inhabitants in the
city. The population of Addis Ababa is approximately 643,000.
137. Many regular customers are married men, who frequently speak of their spouses
in affectionate terms and do not seem to be indulging in extra-marital sexual experiences
because they are unhappily married. Nor do the wives seem to mind, at least at first.
In fact, the practice seems almost a part of the marital relationship. The explanation
seems to be that both male and female expectations concerning polygamy have survived
the transfer to the urban setting, though the economic pressures on the male have con-
siderably increased. After the birth of a child, however, this sort of marital relationship
will often decline and terminate in divorce.
HarvardInternationalLaw journal / Vol. Yz
under the Code. The test is subjective: could the petitioner refuse
reconciliation on the basis of his claim? Under certain systems of
customary law, this is enough, and the Code also affords it recognition.
There is some room for development under the new system. For
example, whereas the wife does not have the status to petition under
the traditional system, the Code does not restrict the wife to this posi-
tion of inferiority. There will not necessarily be an immediate change
in practice, but the possibility is there, and, once the new notions of
status have become accepted, the probability also.
2. The Divorce Process. In many legal systems, a separate juris-
diction has been set up for family matters, and this is also true in
Ethiopia. The drafter of the Civil Code felt, however, that additional
courts for handling matters of family law would not be feasible, as
the necessary additional personnel would not be available. 38 Instead,
a system of family arbitrators has been authorized. These arbitrators,
who have the responsibility for hearing divorce petitions and making
the final dispositions, very nearly constitute the institutionalization of
traditional dispute-settling mechanisms. We shall first turn to the
provisions of the Code to see how family arbitration functions.
When marital difficulties arise, each spouse appoints the witnesses
to the marriage as. arbitrators 13 If the witnesses are not available,
40
any other person may be appointed with the approval of both spouses.'
If the petitioner for the divorce alleges and then proves that a serious
cause exists, the arbitrators must decree the divorce within one month
of the petition date 141 If the petition alleges only marital breakdown,
the arbitrators perform a somewhat different function; their primary
duty then is to attempt to reconcile the parties and make them re-
nounce the petition' 42 To this end, the arbitrators may prescribe any
measure which they deem necessary. 143 Since the arbitrators usually
are close friends of the spouses, they have a substantial interest in per-
forming their function to the best interests of the parties whom they
138. R. David, supra note 65, at 64.

139. Eth. Civ. Code art. 725().
140. Id. art. 725(3).
341. Id. art. 668. The English version of the Code says "three" months; both the
French and Amharic, however, say "one." The expert himself refers to the time period
as "one" month. R. David, supra note 65, at 6o. This is simply one of several errors
of translation. See, e.g., note 45 supra.
142. Eth. Civ. Code art. 676(1).
143. Id. art. 676(2).
z970 / Modernization in Ethiopia
represent. But if a majority eventually vote to decree divorce, the

marriage is dissolved.' 44
The role of the courts here is very limited. If one of the parties chal-
lenges the decree of divorce as invalid, an appeal may be taken to
court on the matter.14' And if an arbitrator who has been appointed
by one of the parties refuses to perform his functions, the court will
appoint a new arbitrator. Moreover, if one of the parties who is required
to appoint a person as arbitrator has not done so during a fifteen-day
period,140 or appoints one to whom the other party cannot agree, this
arbitrator's place is filled by a court appointee1 47 The court may also
intervene when one of the parties alleges that the arbitrators have not
made their decision within the period prescribed by the law, or that
one or both arbitrators have acted fraudulently' 4 8 The court is thus
given power to make decisions only to ensure the continuous, smooth
functioning of the arbitration institution; it cannot make the decision
on behalf of the arbitrators.
By comparison, the procedure under the Fetha Nagast is relatively
simple. The difficulty is referred to a senior priest who may act as
"peacemaker" between two spouses who cannot settle their dispute 4l
But this procedure would apply only if a distinct cause did not exist.
If there were, for example, an impediment preventing the carnal union,
144. There is a one-year period during which the arbitrators can attempt the recon-
ciliation. If the parties are not reconciled at the end of this period, a divorce must be
decreed. Id. art. 678(I). If it is obvious that no reconciliation will be forthcoming,
the arbitrators do not have to wait one year. The period can, however, be extended to
five years by an agreement made by the parties either before or after the celebration of
the marriage. Id. art. 678(2). The spouses could thus agree to a time-extension when the
petition for divorce was filed. This would support the basic premise underlying this
section of the Code, that all attempts should be made to keep as many marriages
together as possible.
If reconciliation has not taken place by the end of a year, the arbitrators will decree
a divorce and regulate the consequences thereof. Specifically, they must give direction
regarding the custody and maintenance of the minor children (the custody of children
is regulated by articles 681-82; Western notions prevail, and the emphasis is on the
"best interests" of the child; see R. David, supra note 65, at 6i) and make whatever pro-
visions are necessary for the liquidation of relations existing between the spouses. The
arbitrators may give two judgments. The first would simply be for the purpose of
decreeing the divorce. In the event that the one-year period may not leave adequate time
for the discussions of the property settlement, the arbitrators are given an additional
six months to deal with the consequences of the divorce; this will be dealt with in a sup-
plementary judgment.
145. Eth. Civ. Code art. 729.
146. Id. art. 735.
147. Id. art. 734.
148. Id. arts. 736, 737.
149. Fetha Nagast 152.
the priest would not be a peacemaker; he would merely decree the

marriage dissolved.
According to the Amhara and Galla systems of customary law,
when one of the spouses wishes to petition for divorce, a referral is
made to those who were negotiators for the spouses at the engagement
and on the marriage day. These persons, called neger abbat ("father
who speaks"), will attempt to reconcile the parties. If the reconciliation
attempt fails, a divorce will be decreed by the neger abbat[s], and this is
accomplished simply by ripping up the marriage contract. This same
process, incidentally, is predominant in the urban setting. Among the
Cambata, the system is somewhat different. When a husband decides
to petition for divorce (the wife cannot petition), a general hearing
will be called by the clan judge, as in any other legal matter. The
assembled group will attempt to reconcile the parties by trying to con-
vince the husband to stay with his wife. If the husband refuses, the
marriage will be dissolved. If he is convinced by those assembled that
he should remain married, there can be no decree of divorce, even
though the wife may wish the marriage dissolved. Among the Gurage,
one finds the institution of the Ankit Dana,a specially appointed judge
on the extended family level, who hears petitions for divorce. As in
the other systems mentioned, he first tries to reconcile the parties; if
he fails, he may then decree a divorce by ripping up the marriage
contract.
The Code has generally recognized the Amhara/Galla (and, as
noted, urban) customary form of process. This reflects the realistic
position that persons close to the spouses are the best individuals to
try to keep the marriage together. The family arbitrator provisions
are not rigid in requiring two persons to represent each of the spouses.
The spouses may agree in advance as to whom they are going to refer
their marriage dispute, should one arise. They have the option of re-
ferring a dispute to their marriage witnesses or to any one else. This
seems to acknowledge the propriety of digressing from the strict family
arbitration found in the Amhara/Galla customary law. Thus, the
Code allows a Gurage to decide that his marriage dispute is to be heard
by the Ankit Dana and similarly authorizes any other system that has
its own internal process for the hearing of divorce petitions.
Thd crucial element in the divorce process thus remains reconcilia-
tion. A minimal attempt must be made to keep the parties together.
And the arbitrator must understand the values of the petitioner and
know whether the specified cause justifies an honest attempt at rec-
onciliation. The Ethiopian codifiers have meritoriously attempted to

perpetuate a workable system of customary law by its inclusion in the
Code.
3. Property Consequences. In the articles dealing with the liquida-
tion of pecuniary interests between spouses, both the expert and the
Commission attempted to make the provisions as simple as possible,
to avoid interminable litigation. Christian principles of common and
personal property are the foundation of this section. Personal property
is that .which the spouses possess on the day of their marriage or which
they acquire after the marriage by succession or donation. 1 Common
property represents the salaries or income of the spouses or property
which has been acquired outright, but which has not been declared to
be personal. 5 ' There is a presumption that all the property is common,
152
unless one of the spouses proves that he is the sole owner.
A property settlement varies according to whether there has been
a serious cause or other cause for divorce alleged in the petition.153
If there has been a serious cause alleged and the fault is imputable to
one of the parties, the spouse who is at fault may be ordered to give up
the whole of the common property and a portion, not exceeding one-
third, of personal property.'5 4 This penalty is never applied against
the innocent spouse, nor where the ground of divorce can be imputed
to both spouses. 55 In this latter instance, the property is to be appor-
tioned in accordance with the provisions of the marriage contract, 5 6
but if a contract does not exist, each spouse may retake the property
which is his personally, and the common property is split equally 57
Where the petition for divorce is not based on a serious cause, the
xio. Eth. Civ. Code art. 647.

15. Id. art. 652.
152. Id. art. 653(l).
153. Id. art. 652. There is one exception: restitution of all gifts received on the occa-
sion of the marriage can be required upon the request of the person giving the gift, or
his heirs. Id. art. 691(1). The words "On the request of the persons who have given
presents or of their heirs" were added by the Codification Commission. The original
wording of the article left it up to the discretion of the arbitrators to order a return
of presents received by the spouses. The article includes gifts given to one spouse by
the other, gifts from ascendants of one of the spouses, or from other persons.
154. Id. art. 692.
155. Id. art. 693(3). An example of this would be a situation in which both have
been guilty of adultery. It could also arise where the serious cause for divorce comes
from the provisions allowing annulment by the religious authorities. In order for an-
nulment to be ordered, guilt need not be imputed to one of the parties; there must exist
an impediment as set out in the Fetha Nagast or in the Shari'a law sources. This provision
refers only to serious causes for divorce.
156. Id. art. 683().
157. Id. arts. 684, 689(l).
HarvardInternationalLaw Journal / VoL is
above-mentioned penalty provisions may be used only against the

petitioner. This is done presumably to discourage petitions for
divorce on non-serious grounds where the petitioner simply intends
to benefit financially from the decree of divorce.
The Code prescriptions actually represent the extreme limits, and
the arbitrators usually have discretion to effect a property split as they
determine. It is expected, however, that in making their decision they
will consider all the circumstances of the case, in particular the im-
portance and gravity of those wrongs committed by the spouses and
for which the divorce was pronounced. 5 9 One would assume that
special attention would also be paid to which spouse has been awarded
custody of any existing children.
The Code provisions also deal with the dowry or "brideprice" paid
the spouse when the marriage occurred. This is the major concern
of the Fetha Nagast,"' 8 which
does not take into consideration any
property settlement other than the gifts presented at the time of the
marriage, the basic assumption apparently being that in an agricultural
society everything other than gifts made to both spouses would be
classified as personal property. The Fetha Nagast also provides that
where property is common it is generally divided between the spouses,
but the ratio of the division may vary according to the nature of the
divorce cause. 10'
According to Islamic law, in case of divorce - whether it is by
means of unilateral declaration of the husband, through mutual con-
sent, or through a petition given by the wife to a judge (Kadi) - per-
sonal property remains with the spouse with whom it originated.
Common property is generally divided equally; and the dowry (in-
cluding household items which the husband provided his wife) stays
with the wife. This could provoke a conflict with the Code, as article
691 allows a husband to request repayment of all presents, and the
request must be honored.
158. Id. art. 694(). This article was inserted by the Commission.
159. Id. art. 695(3).
16o. The general thrust of the Fetha Nagast is to return to the wife anything that
she brought with her from her father's house. Unless she is at fault, she is also awarded
the dowry and her clothing (outfits). As for the produce of the cattle or sheep (in-
cluding wool) that she has brought into the marriage, or offspring from the men and
women slaves, they are to be shared equally by the spouses. Fetha Nagast iso. In the
case of adultery by the wife, the husband takes double the dowry and presents given
her before the marriage; if there are no children, he takes a one-third share of her prop-
erty; but if there are children the one-third share is kept for them. Id. at xs.
161. Id. at 155-54.
Under Cambata law, it makes no difference whether the husband

or wife is at fault. It is always the husband who petitions for the
divorce, and the nature of the property settlement depends on whether
or not there are children. If no children exist, the wife shall be en-
tided to take her clothes with her and reclaim the dowry which has
been paid. She is entitled to nothing more and will then return to
her own family. If there are children, the settlement is slightly modi-
fied; the wife will be expected to remain as a member of her former
husband's clan and bring up the children, who are also members.
(When divorce is decreed, the husband will merely leave the house
in which he was cohabiting with his wife.) It is usual for the elders
to determine how much of the husband's land will be passed to his
male heirs from his wife, and that portion of land will remain with the
wife, to be farmed by the children. Because of the nature of the prop-
erty settlement, one can understand why divorce is infrequent among
the Cambata.
The Cambata law need not violate the Code, but there are circum-
stances where it could. If, for example, a husband decided that he did
not want to release to his wife personal property that was his, he could
contest the divorce in a government court. The most his wife would be
able to salvage out of the marriage would be one-half of the common
property (if the penalty clause of article 692 were not applied). Since
the wife does not bring anything to the marriage except a small dowry
paid by the husband and some clothes, the whole system of Cambata
property sedtement could be disrupted by application of the Code
rules.
In the urban setting, the husband usually leaves his household in-
tact, in this manner providing his wife with the means to continue
living in her former life-style. Any dispute over property will usually
center on immovable property acquired out of the common funds of
the marriage. The Code is capable of adequately dealing with these
disputes. It should be noted that the disputes over property divisions
made by the family arbitrators are usually the vehicle for court review
of the divorce decision. The court is less likely in these instances to
review the decree itself.
In certain respects, the Code here effectively reflects the different
customary laws of the Empire. Its only shortcoming is the equity in-
volved in the property dissolution. It would not be unusual under the
customary law for even a particularly bitter husband to leave his wife
with a sufficient settlement. This usually would occur even if the
HarvardInternationalLaw journal / Vol. iz
settlement included part of his own personal property. Under the more
impersonal workings of the Code, however, a vindictive husband
could take advantage of the technicalities therein and leave his wife
without sufficient means.
CONCLUDING REMARKS
Modernization of law, by which is meant a thorough change intended

to establish law and legal institutions comparable to those of developed
nations, is essentially a political process. The efficacy of the law or
institutions set up may or may not be served by basically political de-
cisions. Some decisions are, of course, made almost purely on the basis
of their legal efficacy, but they still must follow from or correlate with
their political masters. Ethiopian leaders decided to follow a course
that fell somewhere in between the Turkish "solution" - a radical and
total shift in the source and purpose of the law, intended to work
major changes in the social fabric of the nation - and that adopted
by Kenya - the creation of a systematic legal structure built almost
entirely upon previously existing customs. Before its modernization
program was begun, Ethiopia operated with an informal mixture of
legislative/executive and customary laws. Although some customary
law has been incorporated into the Code, all other pre-Code law deal-
ing with matters provided for in the Code has been expressly re-
pealed 162 Moreover, while some attempt was made to harmonize
certain provisions put into the Code with customary and other pre-
existing law, the effort was nowhere nearly as seriously undertaken
as in Kenya. The Code was meant to guide society's growth rather
than represent merely an outgrowth of current societal needs. 163 The
result is a mixed one.
Not unwisely, the Ethiopian government decided to develop a code
162. Eth. Civ. Code art. 3347(0) reads as follows:

"Unless otherwise expressly provided, all rules whether written or customary pre-
viously in force concerning matters provided for in this Code shall be replaced by
this Code and are hereby replaced."
For a general discussion of the factors ordinarily considered by the decision makers in
determining whether the inclusion of rules of customary law is compatible with the
ideals of development, see Cowen, African Legal Studies- - Survey of the Field and
Role of the United States, 27 Law & Contemp. Prob. 545, 552 (1962), reprinted in
African Law: New Law for New Nations, 9, 17 (H. Baade ed. 1963).
163. Cf. Cotran, The Place and Future of Customary Law in East Africa, in East
African Law Today 72, 89 (Commonwealth Law Series No. 5, 1965); Buxbaum, in-
troduction, in Family Law and Customary Law in Asia: A Contemporary Legal Perspec-
tive xv (D. Buxbaum ed. x968).
197o / www.abyssinialaw.com
Modernization in Ethiopia 121
system of law based on the advice of continental European scholars.

On balance, it would seem that the apparent rigidity of the code system
is not as important as the advantage which it offers -that of being a
positive, simplified system of law to which one can easily refer. But,
since very few legally trained persons existed in Ethiopia at the time
that this decision was made, foreign experts inevitably had to be con-
sulted. Who these foreign experts would be and what working rela-
tionship they would have with the locally appointed Commission were
difficult questions for an African nation that had neither a colonial
heritage nor a close working relationship with one particular more
developed country. We have seen the various motives that may have
led the Ethiopian government to turn specifically to continental Euro-
pean experts; 164 again, the decision was at heart a political one and
probably neutral insofar as legal efficacy was concerned.
Once chosen, however, the expert who was to prepare the Civil Code
was set apart from the ordinary members of the Commission and asked
to produce drafts of laws that were to be considered for final promulga-
tion. The interaction between the expert and the Commission would
obviously be crucial to the final working product. But here the expert
was given a special status; though a member of the Commission, he
was considered superior and did not work with the other commission-
ers, as one would have expected. Expertise in the law of the developed
model is certainly useful, even essential; but lack of knowledge con-
cerning the people of the modernizing nation can be a fundamental
handicap. 6 5 Thus, the expert should probably have been merely one
member of the working Commission, which as a whole should have
prepared the Code. Whether the Commission acting in such a manner
could have satisfied the time schedule is another matter. 6 '
164. The suggestion was made above that Continentals were chosen, at least in part,
to counteract English legal influence. Cf. Allott, The Future of African Law, in African
Law: Adaptation and Development 216 (H. Kuper & L. Kuper eds. 1965). Again, this
aspect should not be overemphasized; the continental approach guaranteed greater speed
and at least the illusion of greater certainty.
165. This is not to say that Professor David was not conversant with Ethiopian law,
see note 29 supra. The matter is one of degree, and especially where the law involved
is predominantly customary, the need for native guidance is clear. Of course, it may be
questioned just how far the Ethiopian government wanted the Code to harmonize with
previous custom. And it should be remembered that the starting point in many instances
was to be the Fetha Nagast.
166. This is not to say that the decision made by the Ethiopian government to mod-
ernize its laws immediately is free from criticism. From a rational point of view, it is
difficult to sympathize with the frantic pace employed. Perhaps, the most questionable
result of this pace was the omission entirely of sections designed to harmonize the Code
with Muslim law. See note 105 supra.
122
Once the decision was made to attempt to harmonize at least par-

tially the expert's draft with peculiar Ethiopian values, two conclu-
sions concerning the Commission established for that purpose should
have been drawn. First, the Commission should have been composed
of members of the legal community who had been relieved of all other
duties, instead of members of the government bureaucracy having
other urgent responsibilities. Second, the Commission should have
been made up of persons representing a true cross-section of Ethiopian
society.167 It should have been responsible for the ascertainment of the
various tribal norms and, insofar as compatible with the basic goals of
modernization itself, their implementation (unification) into positive
law.Y68 There are, of course difficulties that even an honest attempt
to represent diverse values must face. Particular customs may be diffi-
cult to locate and pin down, and expertise in a given area may be even
more difficult to locate. Nevertheless, given enough time and suffi-
dent imagination, these difficulties should not prove insurmountable.
The more fundamental question here, however, is whether the political
decision was made to set up a Commission with a balanced composi-
tion. As it turned out, while the expert represented the European
norms, the Commission members represented the politically dominant
Christian-Amhara norms. No one represented the values of the diverse
minority groups.
In actuality, the time pressure eventually forced the Commission
to assume a role of little more importance than that of a translator.
As it became clear that the work was not going to be finished accord-
ing to the original two-year schedule, emphasis was placed on pre-
paring a translated (from the French) version to be presented to
Parliament, and less attention was given to reviewing the expert's
work. As was noted, many of the drafts were simply accepted un-
changed by the Commission: they were merely translated and passed
on to the Parliament.
Our discussion of family law under the new Code raises even more
fundamental questions. Perhaps the most serious of these concerns
the application of a uniform law to a pluralistic society. Although one
may sympathize with the elite's desire to change the "primitive" image
167. In relation to both points, it should be noted that the majority of the work
carried out by the Commission was done by a smaller sub-group of leading jurists and
officials from the Ministry of Justice. See Graven, (upra note 2, at 28; David, supra note
29, at 280.
168. Cf. Krzeczunowicz, supra note 2, at 59.
/ Modernization in Ethiopia 123
of their society (especially if this "image" retarded economic moderniza-

tion elsewhere in society), the necessity of applying a new system of
family law to all Ethiopians equally is doubtful. Whenever one deals
with a pluralistic society, one must contend with divergent values.' 69
The extent to which one can expect to apply modern laws uniformly
is directly related to the uniformity of values. If there is a dependence
on tribal identity for conflict resolution, one should not naively expect
immediately to impose a workable system of uniform law. 170 The
modern law could only have been applied meaningfully in the urban
sector and, perhaps even then, not to all urban residents.170 a The appli-
cation of the new law should, at the outset, have been aimed at those
who had already adapted themselves sufficiently well to a European-
style existence. Others who did not want the new "codified" law
applied should have been given the choice of taking their disputes to
1
the countryside to "adjudicate" under applicable customary law.' '
This is not to say, however, that government courts should be relegated
x69. In Schiller, The Changes and Adjustments Which Should Be Brought to the
Present Legal Systems of the Countries of Africa To Permit Them To Respond More
Effectively to the New Requirements of the Development of the Countries,in Les aspects
jutidiques du d~veloppement &onomique '99 (A. Tune ed. 1966), the Civil Code of
Ethiopia is referred to as an example of "fantasy law" (law that results when the tra-
ditional system of law is ignored in the process of introducing new statutes). He states,
"[a]dmittedly, the [Civil Code of Ethiopia] has no relation to the Fetha Nagast, the
customary compilations of the highland peoples of northern Ethiopia, the customary law
of the other peoples of the Empire, the Islamic law, or the few legislative enactments
which were earlier promulgated." Id. As we have seen, certain aspects both of the
Fetha Nagast and customary law were respected if not incorporated in family law pro-
visions, most notably with regard to marriage ceremonies and divorce. Undoubtedly,
Professor Schiller's statement is true in part but as a helpful generalization it is less
than satisfactory. Specific provisions of the Code must be studied to determine their
source. Cf. Rheinstein, Problems of Law in the New Nations of Africa, in Old Societies
and New States 225 (C. Geertz ed. 1963).
170. Ironically, perhaps, with the many economic self-help projects now springing
up all over the Empire, a new consciousness of tribal background has arisen.
17oa. Religious values, for example, cannot be ignored. Conflicting Muslim values
are a case in point. The community property concepts incorporated into the Code clash
with the individual property-holding patterns of the Shari'a law. Article 658, for ex-
aniple, requires joint signatures of the spouses when immovable property is being
offered as security for a loan. The Commercial Bank of Ethiopia is now faced with the
dilemma of requiring the large number of Muslim merchants to cosign documents of
security with their wives or forgo the opportunity of receiving the loan. As the Muslim
does not adhere to the principle of community property and his wife (or wives) is not
accorded the requisite status to become a signatory, he has, in general, refused to
cooperate. The Bank, knowing that much of the economic activity of, the Empire is
controlled by Muslim business interests, is not particularly enamored with this aspect of
"modernization."
171. Customary courts should not be allowed to operate in the major cities, where it
should be easy (and hence desirable) to encourage a strong identification with the new
law.
solely to the urban environment - to the contrary, 1they 2

should be
established wherever feasible throughout the Empire.
The disparity in the rate and extent of development between the
urban and the rural sectors necessitates the existence of a dual system,
at least temporarily. And in the long run, much has to be done to
make further modernization a reality. Increased transportation facili-
ties, a massive program of education (in a land where much of the
rural population is even completely unaware of the existence of a
governmental system of schools1"') and a similar program by the
mass media will all be necessary. In retrospect, wide publicity should
have been given to the project initially - certainly, had the Commission
been constituted differently, as suggested above, a by-product of that
effort would have been an increased local awareness of impending
changes in the law. As it is, large segments of the population are sim-
ply unaware of any such change.
Given this state of development, it is not possible immediately to
bring an alien system of law to the rural population.1" 4 Despite the
172. Today, the "system' of, customary institutions still deals with the vast majority
of all legal disputes that arise in the Empire. For a discussion of the current status of the
Shar'a courts, for example, see Singer, The Status of Shari'a Law in Ethiopia, in Legal
Dualism (J. Giliesen ed. 1970); Sedler, Development of Legal Systems, supra note 11,
at 6o5. The continued existence (without formal recognition) of the old institutions in
post-Code Ethiopia does not really pose an immediate problem. They help to soften the
impact of the new laws. Moreover, if all litigation were to be brought to the govern.
mental courts as they now exist, the system would immediately break down. There seems
to be some feeling that the perpetuation of the traditional institutions thus performs a
beneficial function for the government by preventing a strain that it could not now bear.
The manning of courts by qualified jurists is certainly a pressing problem. The proposal
stated in the text assumes that government courts will be set up only where trained
judges would be available. A system of priorities would have to be established, creating
courts in those locations where it is felt that the new law would have an immediate
impact. Extension of the courts into the more rural areas would take place only when
personnel were available (and, of course, the necessary level of development reached). In
addition, the development of a legal profession that the creation of new courts heralds
is itself a political question of no small importance. Historically, lawyers have been a
check to the powers of government whenever the profession has been highly developed.
The extent of public education in the law, of course, often has the same effect.
173. Cf. E. Ginsburg & H. Smith, Manpower Strategy for Developing Countries:
Lessons for Ethiopia z6 (1967); M. Perham, supra note 12, at xix; Assefa, The Edu.
cational Framework of Economic Development in Ethiopia, xx Eth. Observer 1 (1968).
174. Apparently, the government assumed at the outset of the process that the Civil
Code would not be immediately applied to all Ethiopians. A period during which cer-
tain titles of the Code would be put into operation in certain urban areas of the Empire
was planned. This would have meant that the urban population, which is more geared
towards the acceptance of European values, would have faced the modern law first.
It was assumed both that the Code would only gradually be put into effect and that
the area over which it was to be applicable would be enlarged in the same manner. Only
when the population of a specific area was "ready" would its law be changed. David,
supra note 3r, at 36z. Smith, The Preservation of the Civilian Tradition in Mixed
modernizing elite's impatience with evolutionary processes, actual

modernization (especially in those areas that deeply touch religious
and traditional values) will be a long, slow process. Unnatural speed
will impart to the society a sort of colonial legacy-that is, super-
imposed laws emasculated by surviving customs that provide the real
force behind human conduct. And forceful imposition of an entire
body of alien rules upon illiterate rural peoples would cause widespread
social unrest.
It must be admitted that the existence of different law for different
tribal groups may enhance tribalism and impede the march toward
national unity. Tribalism in Africa is a complex problem, however,
and conclusions as to the desirability and efficacy of legal moderniza-
tion (unification) should not be simply assumed. A special caveat in
such areas as family law seems appropriate.
lurisdidions, in Civil Law in the Modern World, supra note 33, at 6, reported that the
Code "was promulgated piecemeal; only parts are in operation and their operation is
restricted to certain areas close to the capital." This is simply not so. The gradual
program was never carried out. In fact, the Code went into effect in its totality over
the entire Empire just four months after promulgation.

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Modernization of Law in Ethiopia: A Study in

The Empire of Ethiopia, the oldest independent nation of Africa,

Both a sense of nationhood and tradition, then, were deeply embedded;

In 1889, Emperor Menelik II, the "father of modern Ethiopia," com-

At the outset, the reforms merely represented a change in form; no

The governors deployed to the provinces by the Ministry of the

most cases the Amhara customary rules. If the governors or wombars

18. See Graven, supra note 2, at 273.

THE PROCESS OF MODERNIZATION

We have never hesitated to adopt the best of what other systems

The great distinction of the continental experts whom We welcome

However, as We have remarked, the point of departure must

mitted to a. Codification Commission, composed of Ethiopians and

French-speaking continental lawyers as draftsmen was the basic

B. Codification: The Civil Code

Our consideration of the way in which codification proceeded will

33. For a discussion of the "politics" of codification, see Bayitch, Codilication in

written about Ethiopian law;4" parliamentary laws were scarce;4 s and

After preparation of the avant-projet, however, the Commission was

to the regulation of matters heretofore not included in civil codes,

The necessity for the separate tide on administrative contracts be-

tract Act, Digest of English Civil Law, Restatements of American Law,

57. Ethiopian Codification Commission, Rapport S.M.I. Haile Selassie I sur la

the deceased's intestate estate."1 The Commission persuaded the ex-

also necessary to prepare a more formal commentary. It would be

A. The Turkish Incorporation

period, on October 4, 1926. Other codes followed, including a Penal

an impending major legal change came during the negotiations for

B. The Kenyan Dialogue

to consider the existing laws relating to marriage, divorce and

to pay particular attention to the status of women70in relation to

The Commission in its deliberations also consulted the law of other

that the provisions would be proper. (There is, as we have indicated,

FAMILY LAW: UNIFICATION IN

The previous discussion attempted to elucidate the considerations in-

marriage are recognized under the Code, a prescribed set of condi-

band and wife. Without the concurrence of these two factors, it is

B. Conditions of Marital Validity

peror or someone especially appointed by him for that purposeY0 The

proposal, the Parliament reversed it. Likewise, in the original draft of

however, disappearing' 07 Among the Gurage, for example, where the

ing party before divorce can be decreed. "Other" matrimonial causes

138. R. David, supra note 65, at 64.

represent. But if a majority eventually vote to decree divorce, the

the priest would not be a peacemaker; he would merely decree the

onciliation. The Ethiopian codifiers have meritoriously attempted to

xio. Eth. Civ. Code art. 647.

above-mentioned penalty provisions may be used only against the

Under Cambata law, it makes no difference whether the husband

Modernization of law, by which is meant a thorough change intended

162. Eth. Civ. Code art. 3347(0) reads as follows:

system of law based on the advice of continental European scholars.

Once the decision was made to attempt to harmonize at least par-

of their society (especially if this "image" retarded economic moderniza-

solely to the urban environment - to the contrary, 1they 2

modernizing elite's impatience with evolutionary processes, actual

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