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IOWA LAW REVIEW
power of the judge was to be limited, and despite the opportunity of
a judge to "make law" under a code, 76 it was believed that a code
would limit the judge's discretion and reduce the danger of arbitrariness.
Moreover, the assumption of a common-law type code is that it
can be employed in conjunction with the existing body of case law.
Since the common law was not in force and there was no recorded
case law, such an assumption could not hold. Consequently, the codes
had to follow the continental model.
Once this was decided, the next, and crucial, question was what
should be the sources of the substantive provisions of the codes. In
the private law area, it was not believed feasible to build on existing
law to any degree. It was agreed that the customary law, such as it
was, was unsatisfactory, which point will be discussed subsequently
in greater detail. There was little written law, and in some fields no
law at all. 77 Therefore, it was necessary to look to foreign law, butand
this is the most significant feature of the adoption of the main
body of law in Ethiopia-Ethiopia did not look to the law of any single
legal system. If there had to be a borrowing, it was to be an eclectic
one, drawing the best from the various legal systems." 8 Not only is
this approach sound from the standpoint of alternatives for choice, but
it was consistent with the Ethiopian tradition of independence not to
"receive" the law of any foreign legal system. Professor David describes
the process of the drafting of the Civil Code as one of synthesis;
the Code was to be an original work based on comparative law,
containing provisions which had been adopted from the laws of a
number of states. 79 The drafter consulted the civil codes of France,
Switzerland, Greece, Italy, and Egypt to determine what matters
should be covered by the Code. 80 ['Vol5
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The formula that was chosen considered
both the special needs of Ethiopia and modem tendencies, and
the drafter points out that it is doubtful if a single article is identified
in terminology with an article contained in any particular foreign
code.," In addition to the codes mentioned, other legal sources were
consulted. The draft uniform laws on sale of goods, arbitration, and
76 See M. PLAN oL TREATIS. ON THE CIVm LAw § 122 (1959).
77See the discussion, supra note 36 and accompanying text.
78 In the Preface to the Civil Code, His Imperial Majesty pointed out that "The
rules of the Code have called upon the best systems of law in the world." Unfortunately,
there is no Table of Concordances, so it is not possible to know the
source of each of the provisions. The absence of a complete commentary by the
drafter is also a handicap in this regard.
70 David, supra note 21, at 503-04.
80 Id. at 504.
81 Id. However, a number of provisions are identical in conception and effect
with specific provisions of foreign law. Compare CIVrM CODE OF ETmopA art. 1246
(dealing with the duties of lower riparian owners) with FaFcs C. Civ. art. 640.