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www.abyssinialaw.com Tort law and development [1996] J.A.L. work of American law is not an independent variable. Outside American law, law and economics has a good chance of enriching its understanding by abandoning a rather parochial attitude and thinking about the institutional peculiarities of the system it wishes to analyse. 42 Tuming now to consider Ethiopian and Eritrean law with regard to environmental problems, as in many other African countries, state justice and other public institutions are very weak 3; that is to say that the modem law layer does not seem able to govern environmental problems efficiently. However, if this layer cannot tackle a problem efficiently, one may still be able to find the proper solution elsewhere, perhaps in customary law with its decentralized hold on the territory.' Collective property rights are usually combined with an inalienability rule in favour of future generations and are policed by local chiefs and/or elders. Thus they appear to many scholars to be projected into the future and environmentally protective by their very nature. One may add that, at the customary level, remedies for property-rights violations are focused on reestablishing social order and are enforced by a high level of social stigma which may ensure their deterrence role. Customary law, therefore, may guarantee a rather efficient level of environmental protection at least against smaller injuries. THE PROPER ROLE OF MODERN TORT LAW IN ETHIoPIA AND ERrTREA At the risk of sounding ethnocentric, it is suggested that some aspects of the Western model of tort law are worth retaining as a tool for tackling environmental problems in Ethiopia and Eritrea. The issue at stake here is the correct level upon which the different solutions can be grounded. Because of its intrinsic localism and limited receptivity in the face of technological expertise, customary law in these two countries seems unable to provide an adequate approach to the macro-problems of environmental externalities.' Moreover, as is known, there is a problem of effective enforcement ofjudicial decisions and generally of state-made rules. So, in developing countries such as Ethiopia and Eritrea where the modem layer of the law is not rooted in the local tradition and therefore can be either chosen (among various models) or rejected, 47 one could, without any cultural problem, bypass the historical phase that preceded the expansion of negligence 42 On this point compare P. Dasgupta, An Inqui , into Well-being and Destitution, 1993. 43 On these points see the works quoted above, n. 28; and I.S. Fraser, "The administrative framework for economic development in Ethiopia", (1966) 3 J.E.L 118ff. 1 SeeJ. Clare Mohamed, "Environmental law trends and concerns in Zimbabwe", in I.L. Backer, H.C. Bugge and A. Helium (eds.), Environment and Development in Developing Countries: National and International Law, Skriftserie, 1994, 15, 20ff. 4s See T.O. Elias, The Nature of African Customary Law, Manchester, 1956. ' For some examples of African national statutes tackling pollution, A. Adekunle, Statute Note, (1992) 36(1)J.A.L. 99ff. 1 We should consider that not all the layers of a stratified legal system are like clothes that can be worn or taken off as we desire. Indeed, very few of them are. Once a layer has been put on it cannot be completely removed. It would be impossible for the French or the Italian legal systems, for instance, to decide overnight to become common law systems. This is because the degree of resistance of the Civil Law tradition is very strong in France and Italy. In stratified legal systems, not all the layers of legal systems have a degree of resistance comparable to that of the Civil Law tradition in France or of the Common Law tradition in England. In less developed countries the modem layer of the legal system (common law or civil law) does not constitute a tradition. Modem layers are not rooted because of the phenomenon of "duality" to which economics of development scholars refer. In other words, while a layer of the legal system can be changed (Sudan's shift from common law to civil law and then to Islamic law is a good example), a legal tradition cannot.
Vol. 40, No. 1 www.abyssinialaw.com Tort law and development in (developing) Western countries." Indeed, considering the phenomenon of dualism (with its formal and informal market) and the massive presence of Western market actors, the efficient solution might call for a co-existence of tort law models. If the goal is to favour the growth of local enterprises which can play a role in the informal market, and not to sterilize the beneficial effects of foreign investment, a balanced tort law must use both strict liability and negligence rules. In the short and medium term, more friendly negligence law rules focused on a level of care positioned to guarantee the efficient level of precaution is probably advisable for damage created by local entrepreneurs: such levels should consider the foreseeability of the harm for a less equipped market actor. On the other hand, strict liability, possibly focused on a market share mechanism, may be the most efficient rule to apply to Western investors and to public-owned local corporations. True, damages can be difficult to account for, but-besides the traditional justification grounded on the deep pocket argument-it would be sufficient to introduce devices (such as minimum levels of compensation related to a typical series of events) in order to make it possible to over-estimate rather than under-estimate damages, thus introducing a subsidy effect on the informal economy. One should also consider the introduction of an insurance regime able to reflect the needs of weaker market actors. In a context in which the insurance market is not perfectly competitive, local enterprises should be allowed to purchase third-party insurance policies with low (maximum) ceilings for compensation. Such limits, by keeping low the cost of liability insurance (that is premium rates, which are usually graduated according to those ceilings of compensation), should favour the diffusion of third-party insurance also at this level. Stronger market actors may furthermore find incentives thereby to purchase first-party insurance, since they may be affected by the low level of compensation covered by insurance in case of harm created by weaker market actors (insured third parties). AN EFFIc INTERNATIONAL ENVIRONMENTAL TORT LAW? An approach to environmental problems is to look at them from a transnational perspective. At this level, the scarcity of concrete results is bewildering. The international community has so far adopted around 200 environmental agreements covering atmospheric, marine and land pollution, protection of wild life and preservation of shared global resources. Most of these agreements were reached after the environmental emergencies of the 1970s. While some have been satisfactory, others remain largely rhetoric. The best solution to such problems might be to re-think the allocation of Western aid, not only to re-direct resources in favour of non-polluting businesses (preferably engaged in producing primary goods), but also to promote a legal education which will foster a local legal culture and consciousness. This alternative respects freedom, gives individuals responsibility and, most importantly, does not impair the process of development. It promotes the development of specifically local legal rules to be applied by judges who should be the best product of their own legal culture. These judges should not be bureaucrats or politicians. They should be technocrats, social engineers and, most of all, scholars on the bench. 48 At that time, as has been seen (nn. 2 and 3), a vast number of growing industrial activities were allowed to externalize their costs with appalling consequences for the environment.
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