A historical and comparative study of continental European codification reveals that codification aims at being complete. Although ‘completeness’ has several implications in different literature Weiss has identified three sub-elements of completeness in the sense of an (a) exclusive, gap-less and comprehensive as the second core feature of continental European codification. In this article each of these elements will be briefly discussed followed by the analysis of the Ethiopian civil code.
Weiss has identified ‘exclusiveness’ as a sub-element of completeness in the sense that codification should completely regulate one area of law and exclude other sources of law. The idea and goal behind a modern codification is that the code should answer all legal questions and that it would not be necessary to rely on multiple legal sources. It would also not be necessary to fall back on judges’ opinions, customs or scholarly wisdom. Thus, reducing and excluding a number of legal sources was the goal of most historical codes. The main representatives of European codification movement demonstrate the element of exclusion of other sources, but not in a radical and absolute form. Weiss argued that even if ‘exclusiveness’ was not absolutely peculiar to all codifications and the degree of exclusivity varies, the codes are formally exclusive in the sense that although other sources of law may exist, the code itself must refer to them.
So far as the Ethiopian civil code is concerned with the element of exclusivity, the following analysis can be made. As I noted in the previous post, the introduction of the Ethiopian civil code which aimed at providing a comprehensive body of law in civil matters lead Ethiopia to abolish customary rules. Furthermore, the civil code excludes the application of any other sources of law and declared the primacy of the code within the legal system. Article 3347 was one of the main provisions that confer the civil code a primacy status within the legal system. Article 3347(1) of the civil code unequivocally repealed all prior law that was not so enacted or preserved by the legislator. The article entitled ‘Repeals’ states: ‘Unless otherwise expressly provided, all rules whether written or customary previously in force concerning matters provided for in this Code shall be replaced by the Code and are hereby repealed’. On its face, it is clear that the provision excludes any other source and makes the civil code the only law in force. The article, first, repealed not only customary rules that were inconsistent with the provisions of the code but also all customary rules concerning matters provided for in the code. Second, the article states that any rules previously in force, no matter by whom they were enforced, are repealed unless one can find specific references for their retention. This shows that there are certain customary practices that are incorporated in the code and reference to customary practice is possible only to the extent the code’s reference. This is because there are some preserved customary rules within the code, for example, ‘elders’ as a decision makers in family matters, fixing the amount of fair compensation in tort and in some other provisions. In doing so, the legislator abolished multiple legal sources and wanted the civil code to be a major source of law in civil matters. As a result, it is possible to conclude that the element of exclusivity were there in Ethiopian civil code. However, while article 3347 of the Ethiopian Civil Code purports to eliminate customary laws and exclude the application of any other sources, the article was impliedly repealed by the provisions of the 1995 constitution. As discussed earlier, the Ethiopian civil code was introduced based on political and legal centralization trying to treat heterogeneous citizens with uniform legal rights and obligations. It was clear that article 3347 of the civil code was the result of this ideology which excludes and abolished legal pluralism. Legal pluralism refers to the recognition of customary norms or institutions within state law or to the independent co-existence of indigenous norms and institutions together with state law. Nevertheless, the 1995 constitution by giving recognition to the adjudication of disputes through religious and customary laws, it impliedly repealed article 3347 of the civil code and allowed multiple sources of law in the country. Article 34(5) of the 1995 constitution provides: ‘This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute’. The constitution further acknowledges both the federal government and states can establish or give official recognition to religious and customary courts. This seems to have been made mainly in favor of legal pluralism which a number of codifications aimed at reducing. This raises a fundamental question here: the status of pre-code customary laws. The answer seems very obvious. As far as the provision of article 3347 is repealed and as far as settlement of disputes by customary laws are constitutionally recognized all customary rules whether they are in conflict with the provisions of the civil code or not, whether the civil code failed to incorporate and make reference to the application of a custom, it does not matter. They become a source of regulation. As a result, the civil code provision that excludes the application of other multiple sources was repealed and hence, the element of exclusivity of completeness was also abolished. Needless to say, the civil code is no longer a primary source in the Ethiopian legal system and has lost its exclusive feature.
2. ABSENCE OF GAPS
Absence of gaps is the second sub-element of completeness that Weiss has identified. This sub-element is concerned with the problems of gaps (lacune) in the code and the role of judges when a code fails to provide a rule to solve a case. Historically, it was often claimed that codes have no gaps and the role of judges are limited only to extent of mechanical application of the code. In France and Germany, for instance, it is generally believed that codes are systematic and scientific and a systematic and scientific code did not contain gaps. Judges are considered as mere executors of codes and if a case could not be solved with the help of the code, they are allowed to look at materials behind codification to ascertain legislators’ intention. It is based on the idea of strict statutory positivism and of binding judges rigidly. This is because codes were regarded as complete and systematized in immutable and absolute principles. However, in reality as it is difficult to foresee all future cases and provide concrete rules, even the best codes have gaps and the existence of gaps in codes were accepted and recognized. Switzerland, for example, established the primacy of the civil code and expressly recognized and codified allowing judges to decide according to existing customary law, in default thereof, according to the rules that Judges’ would lay down if they had to act as legislator. In both scenarios –looking at materials of codification and code procedures to follow if no provision of the code is applicable – shows that gapless code and cases of doubt were foreseen and hence, gapless code is a feature to most codifications. By looking at the history of codification, Weiss has indicated that gaps in the code are inevitable and gaps in codes are usually solved by judges either by looking at the material behind codification or by a code provision to be followed when a gap is encountered.
When analyzed from the perspective of gapless code, the Ethiopian civil code depicts the following two major points.
Firstly, apart from numerous articles suggesting courts on how to interpret specific cases, the civil code does not indicate the role of the judges in dealing with situations where there appears to be a gap in the code. For instance, the civil code provides rules of interpretation of contracts (Articles 1732 to 1739 and 3211), interpretation of wills (Article 910) in cases where contracts and wills are unclear, ambiguous, or fail to give the common intention of parties or testators. This, however, does not show the general direction of the civil code with the problems of gaps in the code and the role of judges when the code is unable to regulate a given case. Courts sometimes claim that the civil code has acknowledged gaps in the code. It was claimed that the provision which states ‘…all rules whether written or customary previously in force (emphasis added) concerning matters provided for in this Code shall be replaced by the Code and are hereby repealed’ as having a gap filling role. As noted above, the function of article 3347 is to repeal all customary laws. Nevertheless, by giving attention to the word previously in force, it was asserted that the civil code repealed all customary rules that existed before the coming into force of the civil code and those customary practices that would come into operation after the coming into force of the civil code were not repealed and will have a gap filling role. This is, however, a stretched argument based on extended interpretation of the provision. It is true that the provision of article 3347 does not show the status of post-code customary practice. But as the same time, the provision does not clearly stipulate whether judges should take customary rules into consideration as a gap filling source or not. Furthermore, the article is entitled ‘repeal’ and it does not suggest anything about gaps in the code. Even if it does, the article was articulated vaguely and ambiguously. In practice, however, although there are no common direction and usage, different techniques of statutory interpretation are used to fill the gaps of the civil code. Today, changes in the code are accepted as a normal development. This is because, as discussed earlier, the civil code is subjected to the provisions of the 1995 constitution.
Secondly, as the Ethiopian civil code was highly influenced by the French civil code, one could argue that the civil code was inclined with the ideas of gapless code and of binding judges strictly. Therefore, judges are considered as a mere executors of the code and they are allowed only to consult materials of codification where there exist gaps in the code. Even in this case, it is difficult for the Ethiopian judge to ascertain the intention of legislator by looking at the materials of codification. This is because of the lack of materials of codification in the working languages of Ethiopia. The Ethiopian civil code was first drafted in French language and translated to English and then to Amharic language. Many concepts, traditions and meanings in the civil code have their root in French language. In order to understand the full meaning of the concepts of the civil code, one should consult codification materials, precedents and commentary works. For two reasons, judges are unable to consult background materials of codification in Ethiopia. First, there are very few background materials of the civil code, usually written in French and English languages and second, the existing materials are superficial, obsolete and can be rarely found. There are no sufficient Amharic materials of codification in which judges can rely on and as a result, gaps in the code cannot be ascertained by looking to the materials of codification. Furthermore, the provision found under article 4 of the French Code which oblige judges not to refuse to give judgment on the pretext of code being silent, obscure or insufficient cannot be found in Ethiopian civil code. Even if the French civil code is based on the idea of gapless code, it impliedly acknowledged the occurrence of gap in the code and obliged judges to give judgment and in case of failure judges are prosecuted for being guilty of a denial of justice. However, there is no such obligation under the Ethiopian civil code and the argument that the Ethiopian civil code was inclined with the ideas of gapless code and of binding judges strictly does not hold water.
Comprehensiveness is the third sub-element that Weiss has identified. Weiss argued that although codifications generally cover a broad field of the law, it cannot cover everything and it does not have to be fully comprehensive. Historically, codifications did not aim at encompassing the whole law in one all-comprehensive code. However, according to Weiss codification does not merely provide regulation for specific issues. The French style of having five codes civil code, penal code, commercial code, civil procedure, and criminal procedure code became generally accepted. Codification therefore seems to cover a field of law in its entirety. This element is more concerned with codifications as a whole within legal system. The element of comprehensiveness was there in Ethiopia as Ethiopia introduced the French style of five different codes together: a Penal Code was enacted in 1957, Civil, Commercial and Maritime Codes in 1960, a Criminal Procedure Code in 1961 and a Civil Procedure Code in 1965.