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SYSTEMS
tomary law as such has no place in the legal system. In most other
sub-Saharan countries there are two sources of law, the formal law
and customary law, each applicable in certain circumstances. This
is not so in Ethiopia and it is therefore important to analyze why
Ethiopia has taken such a different position.
In the first place, unlike the other African countries there had never
been a body of customary law separate and distinct from the formal
law. Nor were there customary courts as such, though frequently
disputes were brought before the traditional authorities. What we call
customary law was recognized as a source of law and could form the
basis of judicial decision. But so could the Fetha Negast and other
"rules." And as was seen, in the earlier stages of the administration
of justice, the concept of legal rules as binding norms did not exist.
In more recent times when the courts considered custom, it was one
of a number of sources that could be drawn upon along with foreign
precedents and principles of "equity.' 17 - Customary law was not a
separate body of law to be applied in certain cases or to certain persons.
Thus, customary law did not develop as a defined body of law. The
customary law that existed was very uncertain, and varied considerably
from place to place, group to group, and even from time to time. 70
Moreover, as Professor Krzeczunowicz has pointed out, 77 Ethiopia
cannot be considered in the purely African customary context. The
Ethiopian tradition included Western, Judeo-Christian, and Greco-
Roman concepts. In the hierarchy of laws custom was considered inferior
to the Fetha Negast. Although the Fetha Negast was not consistently
followed,' 7 it was considered a compilation of great dignity
and wisdom, a status that customary law did not have. 79
In light of these factors, to have a separate body of customary law
as distinct from the formal law would be to introduce a new concept
into Ethiopia. There had been no customary courts nor a separate
system of customary law, as in other African countries. It was not the
policy of the government that one set of laws could be applicable to
one person and another set of laws applicable to another. s0 Where
laws had been promulgated by the central government, e.g., the Law
" See Krzeczunowicz, supra note 36, at 58.
3 76David, supra note 21, at 489. In Eritrea some efforts at unifying the customary
law were made, and some of the customary law was recorded. Krzeczunowicz,
supra note 36, at 58.
'1 7 Krzeczunowicz, supra note 66, at 173.
' 7 SKrzeczunowicz, supra note 36, at 58.
179 See David, supra note 21, at 499.
180 Except as regards the Moslem population at present, for the reasons to be
discussed subsequently.