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SYSTEMS
was not a ground for reversal.227 Moreover, there would be a real
danger of arbitrariness. The judge could apply the codes in some cases
and not in others, depending on which litigant he wanted to favor.
The concept of the law as a guide to decision rather than a binding
norm had existed previously in Ethiopia, and the modern trend had
been away from this concept. The proposal would revive the past
practice which had been a source of arbitrariness. The judges must
be conditioned to decide cases in accordance with the codes and must
recognize their binding force. To permit them to decide in accordance
with "elementary principles of justice" would open the way for the
introduction of customary law, which is exactly contrary to the purpose
of the Code in abolishing such law. The judges, on the whole, are
not sophisticated enough to choose between the codes and customary
law in individual cases, and the codes would be likely to suffer attrition
in favor of the customary law. In order for the codes to be
effective, the judges must be instructed to apply them immediately
as best as they are able. 228
However, as a practical matter, an uneven application of the codes
will take place, and though undesirable from many standpoints, this
uneven application will cushion the impact of the new law. The simple
fact is that in some parts of the country the judges will not be able
to apply the codes, will not try to do so, and the parties will not be
concerned with the codes but only with the customary law. This is
not entirely undesirable. The judges cannot be given a choice to
decide the cases in accordance with either the codes or with custom,
but where they in fact do not apply the codes (because they cannot) 229
and no objection is made by the litigants (who are not thinking in
terms of the codes, but only in terms of the customary law), no harm
is done. In some of the very remote areas where the imposition of
the codes would have the greatest effect, there are no government
courts. In time, these areas will be brought under effective government
control, and as development progresses all people will be less
resistant to the new laws. Moreover, more qualified persons will be
staffing the courts, and they can apply the codes more effectively.
What is suggested here is that the people will grow into the codes, so
to speak. There will be a coincidence between the progress of the
2 2 7 rzeczunowicz, supra note 66, at 176-77.
225 For the contrary view, see Vanderlinden, supra note 17, at 264-66. Dr.
Vanderlinden contends that the Supreme Imperial Court should have the power
to "depart from a strict provision of the code in order to insure that justice was
effectively done," at least during the transitional period. He admits, however,
that the existence of the institution of the Emperor's chilot presents an obstacle
to conferring this power on the Supreme Imperial Court.
229 If judges are required by law to apply the codes, it must be assumed that
they will try to do so.