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IOWA LAW REVIEW
on the court's own motion are also authorized. 293 Finally, the court
is given broad powers with respect to the conduct of the trial and the
summoning and examination of witnesses. 2 4 Because of the absence
of trained lawyers, these provisions are particularly necessary to protect
the parties from the consequences of procedural errors.
Next, consideration will be given to the problems of having a mixed
system of law. The substantive law is based on continental models
while the procedural law follows the common-law approach. As has
been demonstrated, such a system was necessary in Ethiopia, but because
of it certain problems may arise. Some are of a technical nature,
resulting from the different form in which the substantive and procedural
codes were drafted and the different terminology employed. These
can be remedied by proper interpretation. 295 The real question concerns
the effect that common-law procedure will have on the application
and interpretation of the substantive law. In the first place, in
civil law systems the law is not considered to develop through litigation;
theoretically, the system of rights, rules, and principles exist
apart from the process of litigation. 29 In such systems, the courts are
formally denied a creative rule. Solutions for new situations, not specifically
covered by the codes, must come from legal scholars and the
"id6e-force of Droit. '297
This is not likely to happen in Ethiopia. Litigation has been far too
important for the concept of the law apart from litigation to exist, and
the judges are oriented to see the law through the process of litigation.
They will not interpret the codes in the abstract, but will see the
provisions only in relation to the facts of a particular case. There is
not, nor is there likely to be in the foreseeable future, a complete
body of doctrine explaining and commenting upon the codes. 298 [Vol 53
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9 Id. art. 91, 251.
294 See, e.g., id. arts. 1M1, 264, 265, 272.
^0 5 One example is the matter of joinder of a third party defendant on the
ground that the original defendant is entitled to contribution from him. ETm Civ.
PRo. CoDE art. 43. However, art. 1908 of the Civil Code provides that "a debtor
who pays in excess of his share may claim the amount paid in excess from the
co-debtors." The article on contribution in tort cases, art. 2161, also refers to
"a person who has paid the whole debt." Since the substantive law must determine
whether a right to contribution exists, see Brown v. Cranston, 132 F2d 631
(2d Cir. 1942), it could be contended that third party joinder was not authorized,
since there is no right to contribution until the defendant has paid. Such a construction
would render art. 43 inoperative. The problem results from the different
terminology employed in the two codes, and art. 43 should be construed to authorize
joinder where the "debtor may be compelled to pay in excess of his share."
206 See R. DAVm & H. DE Vmss, supra note 271, at 73-74.
2971d.
25B Efforts are being made by the members of the Faculty of Law to prepare