Download - Abyssinia Law

IOWA LAW REVIEW
Most of the other former French colonies have adopted the same
approach-customary law is applicable to the persons formerly subject
to customary law in matters of family law, succession, and property,
but there are not separate customary tribunals. 1 70 In some countries,
however, separate tribunals continue to exist. 7 1 The point is that in
most of the former French colonies customary law retains the place
it had under colonial rule, though the trend in some countries, at
least, favors the abolition of customary law.
Finally, we may look at Liberia, the only sub-Saharan country other
than Ethiopia that has not been under colonial rule. A dual system
has always existed, very similar to that prevailing in French Africa.
The population has been divided between the American-Liberians
(descendants of the liberated American slaves who founded the republic)
and the indigenous tribal population or, as they are referred
to in legislation, the aborigines. The common law was applicable to
the American-Liberians and assimilated tribal persons. Customary
law was applicable to nonassimilated tribal persons, and a separate
system of tribal courts was established. 7 2 There is an interaction
between the two court systems. In cases involving tribal persons the
regular courts must apply customary law; in some circumstances the
tribal courts will be applying non-customary law. The question of
the applicable law is often difficult to determine since it depends on the
degree of affiliation which a party, if an aborigine by birth, retains to
his tribe. 73 The present government is pursuing an extensive policy
of unification to obliterate the distinction between American-Liberians
and aborigines. 74 www.abyssinialaw.com
[Vol. 53
In time, the tribal population will become fully
integrated. When this occurs, the need for a separate system of customary
law will disappear and there will be only one body of law.
We may now consider the approach that was taken to customary
law in Ethiopia. Unlike practically all the other sub-Saharan countries,
Ethiopia did not retain a separate system of customary law.
Article 3347 (1) of the Civil Code provides that:
Unless otherwise expressly provided, all rules whether written or customary
previously in force concerning matters provided for in this Code
shall be replaced by this Code and are hereby repealed.
The key words are "concerning matters provided for in this Code."
It does not matter that the customary rule is not inconsistent with the
Code. The Code is to be the only source of law in all cases, and cus-
1 7 0 See Pageard, supra note 57, for a discussion of the approaches taken by each
of the countries.
71Id.
172 A. ALLorr, supra note 56, at 82.
13 Id. at 84.
1 7 4 See the discussion of the government's unification policy in L. Musxr,
Ta NEiW LrnaiA 61-72 (1964).