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IOWA LAW REVIEW
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it to a case before him than it would in the abstract, and any interpretation
of the code must take account of the fact that the code has
significance primarily as the basis of decision in litigated cases. The
pragmatism inherent in the common-law approach to judicial decision
may prevent unrealistic interpretations. So long as the judges do not
engraft common-law principles on civilian-based provisions of the
codes, interpretation of the codes in the context of actual litigation
may have a beneficial effect on the development of the substantive
30 4
law.
The existence of a mixed legal system also raises the question of
binding precedent and stare decisis. This question has not yet been
resolved in Ethiopia. The 1962 Proclamation provided for binding
precedent in that lower courts were required to follow the decisions
of higher courts on questions of law, but with the suspension of the
Proclamation this provision is no longer effective. Since Ethiopia's
substantive law is based on codes, these doctrines would have to be
employed in a different fashion and on a different basis than in common-law
countries. As in civil law countries, the starting point for
judicial reasoning would be the provisions of the codes rather than
previously decided cases. 30 5 In many situations the judge will be able
to base his decision on the clear language of the codes. But, there
frequently will be times when the codes must be interpreted. In such
a case there is no reason why the judge cannot consult prior decisions
interpreting the codes; this is done in civil law countries. 306 If he
can consult them, there is no reason why he cannot be bound by them.
He would be bound by the interpretation put on an article of the code
and the application of a code article to a particular fact situation. 3
These doctrines are not incompatible with a substantive law based
on codes.
There are strong arguments favoring the imposition of binding
precedent on lower court judges, and it can be predicted that this will
be done. With more qualified judges sitting on the higher courts,
better decisions are likely to be coming from those courts. The utili-
304 Dr. Vanderlinden's conclusion is that the common-law influences in Ethiopia
will outweigh the civil law ones and that, in effect, the development of Ethiopia's
legal system will be along common-law lines. Vanderlinden, supra note 17, at
264. While I prefer to think of the legal system as "mixed," I share Dr. Vanderlinden's
optimism that a distinctly Ethiopian approach to the solution of Ethiopian
legal problems will emerge. Id. at 266.
30 5 See A. VON 1MEHEn, supra note 8, at 827-28.
306 See M. PLAMOL, TREATISE ON THE CIVIL LAw § 124; R. DAVID & H. DE VMs,
supra note 271, at 116-17.
307 In effect, this is what is done in mixed jurisdictions where these doctrines
are applicable. See J. CASTEL, THE CNrVL LAw Sysr=r OF THE PROvncE OF QuEBEC
230 (1962).