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www.abyssinialaw.com Tort law and development agents of tort law development (and for a long time the only ones) were the courts, which were particularly sensitive to the pressures that an increasingly complex society was placing upon them. Often, statutes came only after decades of changes via case law. In civil law, by contrast, the burden of legal change has been shared by courts and legal scholars, who were sometimes able to persuade legislators to enact new statutes. 17 TORT LAw IN ETHIoPIA AND ERaTR.A [1996] J.A.L. In the analysis of tort law in Ethiopia and Eritrea one must start with a structural observation of crucial importance-often neglected because of the same kind of cultural imperialism affecting the American law and development movement in the 1960s and 1970s, which eventually led to its failure.' This observation concerns the phenomenon called legal stratification' 9 that can be observed at two different levels. First, the legal system of these countries is made up of legal layers imposed on one another in the course of history. In Ethiopia and Eritrea, much earlier than in other parts of Africa, 2 " religious law (the Christian-Coptic and later the Islamic Sharia) was superimposed on the previous layer of local customary law. 2 ' 17 Think, for example, of the leading cases which marked the path of product liability: MacPherson v. Buick Motor (1916) 217 N.Y. 382, 111 N.E. 1050; Donoghuev. Stevenson [1932] A.C. 562; Escola v. Coca Cola Bottling Co. of Frsno (1944) 24 Cal. 2d 453; 150 P. 2d 436. Compare them with that followed by European civil law systems. In the latter the very different and sometimes contradictory path followed by national courts has long been bearable only thanks to scholarly efforts of rationalization. In the end, such scholarly efforts have been successful also at the E.U. level leading the enactment of a directive. See G. Ponzaneili, La Responsabilitd Civile. ProfIi di Diritto Comparato, 1992, 67ff and 107ff. 1 See F. Snyder, "The failure of law and development', (1982) Wsconsin I R. 373. For a general survey on the law and development movement, see F. von Benda-Beckmann, "Scapegoat and magic charm: law in development theory and practice", (1989) 28 J. of Legal Pluralism and Unoffiial Law 129; A. Ferguene, "Elements pour un autre d~vloppement", (1993) 31 Rea Algir Sc. Jur 79. S. Adelman and A. Paliwala, Law and Crisis in the Third World, London, 1993; R.B. Seidman, 7he State, Law, and Developmaent, London, 1978. From the economic point of view, see I.M.D. Little, Economic Development: Theory, Policy and International Relations, New York, 1982 (focusing on bow, in developing countries, part of the economy operates under paternalist or quasi feudal regime. '9 See R. Sacco, Introduzione al Diuitto Privato Somalo, 1973. 20 See for example, WJ. Mommsen andJ. de Moor, European Expansion and Law: 7he Encounter of European and Indlrenous Law in 19th and 20th century Africa and Asia, 1991. 2' See for example, F. Ostini, Trattato di Diritto Consuetudinario dell'Eritrea, 1960; F.F. Russell, "Eritrean customary law", (1959) 3 J-A.L 99ff; Zaki Mustafa, "The substantive law applied by Muslim courts in Ethiopia. Possible justifications for the continued application of the Sharia", (1973) 9 J.E.L. 138ff. As to the Fetha Negast (the term derives from Ge'ez, the ancient language of Ethiopia, and can be understood to mean 'justice of the Kings") which is a sort of compilation of religious and civil precepts, whose sources seem to have been the Old and New Testament, a certain number of original Apostolic writings, the canons of early Councils, other writings which reflected the principles both of the compilation ofJustinian as appearing in the books of Syro-Roman Law, and of Mohammed Law School of Cairo, see I. Guidi, / Fetha Negast a Legislatore dei Re. Codice Eceesiastico e Civile dellAbissinia, 2 vols, 1895-1899; M. Perham, The Government ofEthiopna, 1948, 138ff Y. Berhane, Delict and Torts: An Introduction to the Sources of the Law of Civil Wrongs in Contemporary Ethiopia, 1969, 3f. As to the influence of Fetha Negast on the civil codification works, see R. David,' "Le rapport entre le nouveau code civil et 'ancien Fetha Negast est facile i. reconnaitre", in R. David, "Le. sources du Code Civil Ethiopien", in (1962) 14 Rea Int. Dr Comp. 497; and see also the Preface to the Civil Code by Emperor Haile Selassie I: "the codification Commission has been inspired in its labours by the genius of Ethiopian legal traditions and institutions as revealed by the ancient and venerable Fetha Negast".
Vol. 40, No. I Tort law and development www.abyssinialaw.com Colonial law was then, at least partially, superimposed on both these layers. 22 On top of this, the law of the modem independent state (socialist during the period 1974-91) created a new layer. 23 No legal order had enough power completely to supplant previous layers, and legal scholars had little influence on the development of the phenomenon. Secondly, even the customary informal legal system resulted from a historical process of superimposition and integration of different components. What is usually referred to as the customary layer is made up of heterogeneous customs which interacted with each other historically. Though the absence of written sources makes it difficult to know the exact details of the history of the different ethnic groups, it is known that they experienced migrations, conquests and invasions which modified the customs of both the victorious and defeated groups. This phenomenon is neither structurally different nor less complex than the processes that took place in Europe with the clash and interplay of the flux of different legal cultures. 2 " In this process of stratification, the imposition of a new legal system did not cancel out the old legal order, but instead cohabited with it, officially or unofficially. It restricted the application of the old law and modified it or was modified by it in turn. This coexistence of different legal orders created a remarkable legal pluralism in Ethiopia and Eritrea, as in many other African countries.6 Such pluralism, which may depend on the nature of the legal transaction (such as family law, customary or business law), 27 survived even when the Ethiopian state attempted to unify its law and disregard customary law. In fact the latter flourished de facto, since the state lacked sufficient resources to impose its own choice. 2 One can say the same about the organization of justice. The judicial system is unified but, within it, different courts apply a different law (state law, customary law, Islamic law). The legal culture of the judge and even the process of selection may change depending on the law which is to be applied. 2 " All this, of course, is crucially important to an understanding of Ethiopian and Eritrean tort law. Modem law adopted a Western model proposed by Ren6 David when drafting the Ethiopian Civil Code (Chapter XIII, consisting of no fewer than 135 articles, 22 For valuable remarks on this phenomenon see R. Sacco, "Diffusion at d6pfrissement des modles juridiques italiens en Afrique, notamment en Somalie", in G. Conac (ed.), Dynamiques et Fnalit&s des Droits Africaines, 1980, 26f; M. Guadagni, Ri Diritto dei Paesi Afticani Nella Letteratura Contemporanea, 1984, 27ff, 215ff. 23 P. Brietzke, Law, Development and the Ethiopian Revolution, 1982;J. Vanderlinden, "Le droit de la revolution 6thiopienne", in Conac (ed.), op. cit., 331. 24 Compare D. Haile, "Law and social change in Africa: preliminary look at the Ethiopian experience", (1973) 9 J.E.L 380ff; P.L. Strauss and M.R. Topping, "Decision trees", (1970) 7 j.E.L 447ff T. Geraghty, "People, practice, attitudes and problems in the courts of Ethiopia", (1969) 6 7.E.L 426ff. It seems, however, unlikely that the exporters and the drafters of legal models and codes failed to take these problems into consideration. What may be more likely is that this issue was underestimated by the various African intellectuals who gained power, who had studied overseas and come under the influence of "traditional" Western legal models; on this point see D. Haile, "Ethiopia", in M. Guadagni (ed.), Legal Scholarship in Africa, 1989, 29ff. 1 See the works quoted above, nn. 19-20. 26 On this phenomenon see for example, J. Griffith, "What is legal pluralism?" (1986) 24 J. Leg. Pluralism and Unoffixial Laur, S. Engle-Merry, "Legal pluralism", (1988) 22 Law and Soc. Rea 869. 27 G. Krzeczunowicz, "Code and custom in Ethiopia", (1965) 2J7.E.L 425ff; and "A new legislative approach to customary law. The 'repeals' provision of the Ethiopian Civil Code of 1960", (1964) 1 J.E-L 57ff. 28 P. Brietzke, Law Development and Ethiopian Revolution, 1982, 82ff R. Sacco, Dinto in Africa (forthcoming). 2 As far as Ethiopia and Eritrea are concerned, see for example, Haile, op. cit.; Strauss and Topping, op. cit.
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