Professional Documents
Culture Documents
187 1962-1963
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sion to have a code in the French or German sense-a Restatement or some other form of corpus juris would have done as
well, provided only that the compilation adopted were sufficiently
detailed and provided, of course, that its imperative character
were recognized.
The difference between the two types of codes in a similar
case must not be exaggerated. All things considered, few difficulties have resulted in the interpretation of uniform laws where
the latter have been adopted in countries in which the law is attached to different juridical families. On the other hand the example of Turkey appears significant to us. The jurists in that
country argue about what was received in Turkey in 1925: - Was
it the Swiss Civil Code, or was it the Swiss civil law? In other
words, was it a certain number of juridical rules which were declared obligatory so that these rules would establish just so many
exceptions to the principles of traditional Turkish law maintained
in force-or have the principles of the Swiss juridical order themselves been implicitly received in the nature of civil law, so that the
rules of the Swiss Code appear henceforth for Turkish jurists not
only as solutions imposed on them, but implying also the basis
of their reasoning with respect to the discovery of other rules
and solutions?
The fact is that thirty years after putting a Turkish Civil Code
modeled on the Swiss Code into force, the Turks have not yet
reached agreement on this subject, which tends to prove the theoretical character of the problem thus posed. However, the question is
hardly presented when a code is as detailed as the Turkish Civil
Code or the new Ethiopian Civil Code. In the absence of an indisputable common law, as is the common law of England, the distinction between codes in the continental style and codes in the style
of the common law vanishes; the continental conception inevitably
triumphs. However, even on the basis of the Code, in time there
will develop, with a reliable steadiness, a law properly Ethiopian,
having its own rational characteristics. In this evolution it will be
difficult to differentiate between that which relates to a tradition
more ancient than the code, inspiring modes of reasoning and
original interpretation, and that which will be the product of circumstances or of modern points of view, distinguishing Ethiopia
from other countries which have codes.
The problem that we have presented is no less real, but is present
on another plane. It is a matter of knowing if the concepts used in
the Code will be those of continental law or those of the common
5 On this problem, cf. Annals of the Faculty of Istanbul, No. 6 (1956).
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III. RELATION
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they were conformable to, or simply when they were not in contradiction with, the ideal order of which the Code pretended to state
the rules. Had they wished to do so, to follow strictly Ethiopian
customs would have been to run up against an impossibility of fact;
an impossibility because in certain matters there is a total absence
of customs. For example, the entire matter of contracts in the
Code is a new thing, for the Ethiopian society of yesterday did not
in the last hour that it was finally abandoned and replaced by the Amharic
word wul.
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three titles of Book I, the different titles of Book III, the title
Of Successions, and finally two titles Of the Application of the
Laws which contain the rules of conflict of laws, and Of the Enforcement and Application of the Civil Code, which notably contains transitory dispositions.
The order thus indicated is only approximate. In the course
of his work, the expert was led to propose changes or to make
additions to the parts that he had already established. It is thus
that the chapter Of Donation, that on The Contract for Real Estate, that on Public Domain and Expropriation, and the title Of
Administrative Contractswere drafted only after Books I to III of
the Civil Code.
At the same time as the different titles were presented, or shortly thereafter, the redactor presented to the commission an expos6
des motifs and a commentary on this title. These commentaries
were originally very well developed. They became more brief when
it appeared that the translation service, dedicating itself by priority
to the texts themselves, was not able to assure translation in the
time desired.
These documents remain useful, nevertheless, in order to make
known the sources used by the expert, and especially in order to
explain the reasons for various dispositions, notably those that
the commission could be surprised in finding in the preparatory
plan, or those tied to Ethiopian particularities that a stranger
would be surprised to find in the Ethiopian Civil Code.
To the extent that it was elaborated, the preparatory plan
was translated to the Minister of Justice and submitted to the
criticism of a codification commission. This commission, composed principally of judges and high Ethiopian functionaries, comprised also certain foreign members residing in Ethiopia. Very
rapidly, however, it appeared that the presence of these foreign
members was never essential, and that on the contrary their presence created the risk of slowing up or handicapping the work of
the commission, because very often it had to discuss problems
of Amharic terminology, and the foreigners were not able in
all hypotheses to fulfill in a satisfactory manner the role of the
commission in discussing the Amharic language. In fact all the
work was accomplished by a "restricted commission" composed
of only Ethiopian members of the commission. The expert participated in only a limited number of commission sessions, principally
to hear objections made to certain texts of the preparatory plan,
to discuss possible problems arising with the commission, and to
be in position to revise his work to give effect to the decisions
rendered by the commission.
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The commisison accomplished considerable work in two directions. On one hand it had to formulate in the Amharic language,
with precision and elegance, the definitions translated from French.
It is justifiable to emphasize the difficulty of work which was
imposed in this regard. The Amharic language does not very
often admit words apt to give an exact idea of the institutions
that one wished to regulate, and it was necessary for the commission in many instances to coin new expressions, sometimes borrowing them from the g6'ez language in which the out-dated Fetha
Negast was drafted, in each case with the need for establishing
an Amharic text comprehensible to Ethiopians of today. Amharic
thought does not even develop as does western thought, and the
work of transposition and of adaptation which was made would
not have been able to be concluded satisfactorily except for the
presence on the commission of persons versed in the grammar and
the philology of the Amharic language.
The expert had taken, it is true, all precautions incumbent on
him to facilitate this work. The division of the articles into numbered paragraphs and the limitation of each paragraph to only
one sentence had as its object facilitating the task of the commission and elucidating that obscurity which would have been inevitable if free play had been allowed to the Amharic tendency
to combine into a single sentence, generally devoid of punctuation
and as long as necessary, all the elements of an argument. The
members of the commission were in accord in recognizing that
the discipline accepted by them made their work easier and permitted them to express with more clarity the rules of the Civil
Code. Their task was no less than overwhelming on this subject.
It is not within the province of a foreigner to judge the extent
to which the nuances of the French text have been faithfully
rendered in the Amharic text of the Code. Nevertheless I had the
curiosity to have the Amharic text of the Code translated into
French by an Ethiopian, on matters concerning articles 1763 to
1804 in Title XII of the 'Civil Code. The experience was conclusive and a favorable witness to the very precise work that
the Ethiopian commission has accomplished. The French text
restored in the translation of the Amharic text was doubtless
not identical to the text from which the commission departed, but
the sense of the articles was understood, and it is concerning
the nuances only that the Amharic text can appear different from
the French text.
The second task of the commission was naturally the critical
study of the preparatory plan concerning the basis of its dispositions. Here again the commission accomplished a very important
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sive. Outside of that which has just been pointed out, practically
no other modification has been imposed on the dispositions of Books
IV and V relating to obligations and contracts.
One other modification imposed by Parliament is, in our opinion,
at the same time important and regrettable. The last title of the
projet which bore on putting the Civil Code into force and which
contained in particular numerous and important transitory dispositions was profoundly recast by Parliament and practically
emptied of its content. Only ten articles were retained of the
eighty-four that the projet of the Civil Code called for. It is to be
feared that this amputation may be the source of great difficulties
in the application of the Civil Code.
The procedure followed in Ethiopia for the elaboration of the
Civil Code gave good results on the whole. The discussion of the
Code article by article in Parliament was definitely a good thing
because it confirmed the national Ethiopian character of the new
Code and was useful in forming new jurists. This advantage, in
our eyes, largely compensated the inconvenience of some modifications made by Parliament that we regarded as unwelcome. It appears to us, however, that the procedure thus followed in itself
would, in a country other than Ethiopia, have seriously risked involving the downfall of codification. We regret moreover that
the Code, promulgated in May, 1960, was put in force in September,
1960. This delay, very brief for Ethiopia, in any other country
would be clearly insufficient.
The procedure that we had advocated was different. It consisted, first, in publishing the projet of the commission at the conclusion of a debate which would have taken place in Parliament
and which would have borne exclusively on the desire for having
a code on one hand, and on the other, the acceptance of the
principle of the projet as the basis of the new Code. The projet
published as the result of such a debate would have become the Code
and gone into force at the end of the sufficient delay of three or
even five years, giving an accounting in the new edition of the
modifications that, in this delay, Parliament would have made.
This procedure was suggested too late to be adopted.
VI. APPLICATION OF THE CIVIL CODE
The Ethiopian Civil Code, having been promulgated, went into
force on the second of September, 1960 (the first day of the year
1953 according to the Ethiopian calendar). What are the prospects for its effective application by citizens and by judges?
One must guard against making an absolute jddgment here,
and against voicing an opinion influenced by a great number of
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