Legal History and Traditions

Preliminary Considerations 1
CHAPTER 1
PRELIMINARY CONSIDERATIONS
OBJECTIVES
After reading this chapter, you should be able to:
• How to explaining some notions
• Classification of legal systems
• Discuss about legal tradition
• Focus on legal transplantation
1.1. EXPLAINING SOME NOTIONS

A notion in logic and philosophy is a reflection in the mind of real
objects and phenomena in their essential features and relations. Notions
are usually described in terms of scope (sphere) and content. This is
because notions are often created in response to empirical observations
(or experiments) of covering trends among variables.
A primitive notion is used in logic or mathematics as an undefined
term or concept at the foundation of an axiomatic system to be
constructed. However, in philosophy the term “primitive notion” has
historical content. “The alphabet of human thought is a catalogue of
2 Legal History and Traditions
primitive notions, or those we cannot render clearer by any definitions.

“A thing which is known without other intermediate notions can be
considered to be primitive,” and further, “a primitive notion is said to
be conceived through itself”.
Another example is in the Meditations of René Descartes:
• There are certain primitive notions in us which are like
originals. There are very few such notions. For apart from the
most general notions of being, number, duration, etc. which
apply to everything that we can conceive, we have only the
notion of extension that is specifically for the body, and from
that flow the notions of shape and movement; and for the
soul on its own we have only the concept of thought, which
includes perceptions of the understanding and inclinations of
the will. Finally, for the body and soul together, we have only
the concept of their union, on which depends the notion of the
soul’s power to move the body and the body’s power to act on
the soul by causing its sensations and passions.
1.1.1. Definition of Legal History

Legal history or the history of law is the study of how law has
evolved and why it has changed. Legal history is closely connected to
the development of civilizations and operates in the wider context of
social history. Certain jurists and historians of legal process have seen
legal history as the recording of the evolution of laws and the technical
explanation of how these laws have evolved with the view of better
understanding the origins of various legal concepts; some consider legal
history a branch of intellectual history. Twentieth-century historians
viewed legal history in a more contextualized manner - more in line with
the thinking of social historians. They have looked at legal institutions
as complex systems of rules, players and symbols and have seen these
elements interact with society to change, adapt, resist or promote
certain aspects of civil society. Such legal historians have tended to
analyses case histories from the parameters of social-science inquiry,
using statistical methods, analyzing class distinctions among litigants,
petitioners and other players in various legal processes. By analyzing
case outcomes, transaction costs, and numbers of settled cases, they
have begun an analysis of legal institutions, practices, procedures and
briefs that gives a more complex picture of law and society than the
study of jurisprudence, case law and civil codes can achieve.
A legal historian should adopt an interdisciplinary approach to the

subject; which means, a legal historian should be informed by economics,
political science, sociology and other relevant social sciences. This is so
because a legal system of any country cannot be fully appreciated if it
is considered independently. Religion affects a legal system; politics
affects it and so are economic institutions of that country.
Legal history is a term that has at least two meanings:
• Among certain jurists and historians of legal process it has
been seen as the recording of the evolution of laws and the
technical explanation of how these laws have evolved with
the view of better understanding the origins of various legal
concepts, some consider it as a branch of intellectual history.
• Twentieth century historians have viewed legal history in a
more contextualized manner more in line with the thinking
of social historians. They have looked at legal institutions
as complex systems of rules, players and symbols and have
seen these elements interact with society to change, adapt,
resist or promote certain aspects of civil society. Such legal
historians have tended to analyze case histories from the
parameters of social science inquiry, using statistical methods,
analyzing class distinctions among litigants, petitioners and
other players in various legal processes. By analyzing case
outcomes, transaction costs, number of settled cases they have
begun an analysis of legal institutions, practices, procedures
and briefs that give us a more complex picture of law and
society than the study of jurisprudence, case law and civil
codes can achieve.
1.1.2. Approaches to Legal History

There are four major approaches in studying legal history and
traditions. The first approach states that the subject of legal history
should focus on the past societies themselves, the legal rules, legal
principles, legal standards and the changes therein by disregarding
factors such as social, political and economic for the sole purpose of
understanding those past systems. This approach is called the unitary
or isolationist approach.
The second approach is called the holistic or the sociological
approach. It refers to the inclusion of economic, religious, social political
institutions of past societies. This approach, in addition to the elements
that must be studied according to the first approach, should include both
internal and external factors to a past legal system as a legal system does
not stand in isolation from external factors. Thus, the study of legal history
and legal traditions will not be complete unless it includes economic,
social, religious and political elements. The sociological conception rests
on the idea that society is a whole and is not made of separate elements.
The sociological approach assumes further that a society is made up of
interrelated elements that are constantly interacting with one another.
Thus, the economic and social organizations of the society exert upon
the law and force it to organization and search for solutions.
The third approach is called the technical approach. This approach
states that legal history should limit itself to gather the legal problems
and understand the legal reasons why these solutions were chosen by
past societies. The technical approach to legal history proposes that the
present society should use the legal solutions the past society adopted
when current societies face similar problems. There is a need to study
the history of the laws of the past societies not simply for the sake of
knowledge of these societies (as in the historical conception); it is not
simply to reach a sociological explanation of their laws and their
relations to other aspects of the social organization (as in the sociological
conception); it is not also simply to discover general rules of the evolution
and development of societies; rather it is to gather legal problems and
to understand the reasons why these solutions were chosen plus the
technical arguments and reasoning by which they have been justified by
these societies.
The last view called the mixed approach is a combination of the
unitary, the holistic and technical approaches. This mixed approach
bases itself on the idea that the three approaches have positive elements,
which need to be taken into account when studying legal history and
legal traditions. The four approaches to the study of legal history are
different in terms of scope, purpose and the legal theory behind them.
For example, the unitary approach to legal history is influenced by
legal positivism which claims that the only valid source of law is the
sovereign (law is the command of a sovereign). To legal positivism, legal
historians are supposed to study the history of the series of commands
laid dawn by whoever was in possession of the sole and ultimate law
making power in a given community. On the other hand, the holistic
approach is dominated by those legal historians who believe that there
are several sources of laws; of which the state is just one. Thus, to the
proponents of the holistic approach, legal history should be the study of

the history of the enactments of the numerous authorities laying down
laws including those factors external to law which affect the shape and
content of the law.
1.1.3. Importance of History

The field of “legal history” studies the relationship that “law”
and legal institutions have to the society that surrounds them. “Law”
means everything from local regulations and rules promulgated by
administrative agencies, to statutes and court decisions. Legal history
is interested in how “law” and legal institutions operate and how they
change over time in reaction to changing economic, social, and political
conditions. It looks at people who are “governed” by law, as well as how
those people try to influence law and legal actors. Thus, the field covers
such diverse topics as the Roman law of wills, the social and economic
conditions that brought down feudalism, the legal ideas motivating the
American Revolution, the way that slave patrols kept the slave system
in place, the legal regulation of business in the early 20th century, right
up through the Black Power movement’s critique of the US criminal
justice system.
1.1.4. Reasons for Studying Legal History

The present legal systems stand on the past. Thus, the present
legal systems do not exist in isolation from the past. The present legal
systems are the products of very long historical processes. Secondly, the
study of legal history is important not only to appreciate the present
legal systems but also to help us solve legal problems of today. Certain
legal problems the present legal systems face cannot be solved without
reference to the past. Third, legal history allows us to be sensitive to
legal systems, as legal history reveals that different communities have
solved the same legal problems in quite different manner. The way past
societies understood the concept of law is different from one another
and from the present ways of appreciating the concept of law.
Problems in the study of legal history

The first effort of the legal historian is to find out what happened in
the past. And their next step is to ascertain why those events occurred.
Often there are insufficient data available to arrive at a provable
conclusion and sometimes none at all. Legal history should tell you why
things happened and, sometimes, you may know; sometimes, you may
simply make an educated guess and speculation. Some other times, you
may have no idea about what happened. Thus the fundamental problem
of legal history is lack of sufficient and reliable evidence of past events.
As you will notice in the fourth unit of this course, lack of sufficient,
accessible and reliable data is one of the main problems in the study of
the Ethiopian legal history.
The Concept of Legal System

As you might have noted, the term `legal
system, ìs one of the key elements in the
description of the term `legal history. Can Hints
you tell the meaning of the term à system`? A
system implies that there are several elements The con-
temporary national
put together to achieve a certain purpose. A
legal systems are
legal system is defined as a synergy of legal generally based on
rules, legal principles, legal standards, legal one of four basic
policies, legal structures, legal tradition, legal systems: civil law,
actors, legal extension and legal penetration common law, statu-
operating in a given geographical area. The tory law, religious
term `synergy` in this definition implies that law or combinations
legal system is not a mere summation of of these.
the elements listed. A legal system is rather
qualitatively different from and bigger than
totality of those elements. The complexity
of a legal system varies depending on the stage of development of a
country. You cannot expect the Mesopotamian legal system to show
the sophistication of the current English legal system has. Again you
should not expect the Greek legal system to manifest the complexity of
the present day French legal system in terms of the arrangement of the
legal rules, the legal professionals, recording etc.
A legal system may refer to the present or the past legal system. The
purpose of legal system may be to sustain a slave-owning system or a
feudal system or a capitalist system or to build a communist system.
A legal system may be created to assure the survival of a theocratic
system. A legal system may exist at local level or national or regional
or international level. Legal structure encompasses law schools, bar
associations, the police, courts, the legislature, and the executive and
prison administration. Legal structure means all those institutions
responsible for creating, modifying, interpreting, improving and
implementing laws. The structure has legal actors, which means the
persons acting in legal structures, meaning members of the parliament,
officers of the state, law students, law teachers, legal practitioners, etc.
1.2. CLASSIFICATION OF LEGAL SYSTEMS

Currently, there are about two hundred legal systems in the world.
It is not possible nor desirable to learn about all of them. Thus, it appears
to be wise to consider only the major legal systems of the world. A legal
system is taken as a major legal system based on such factors as its
influence on the development of other legal systems; its geographical
spread, the technological and economic advances of the country being
classified.
1.2.1. What is Legal System?

The legal system includes rules, procedures, and institutions by
which public initiatives and private endeavors can be carried out
through legitimate means. In other words, is a system for interpreting
and enforcing the laws. It elaborates the rights and responsibilities in a
variety of ways. Three major legal systems of the world consist of civil
law, common law and religious law. Other legal systems are: Jury system
is a legal system for determining the facts at issue in a lawsuit. The tax
system is a legal system for assessing and collecting taxes. The Electoral
system is a legal system for making democratic choices.
Jurisdiction’s basis of applying law consists of (1) a constitution,
written or oral; (2) primary legislation, statutes, and laws; authorized
by constitutionally authorized legislative body; (3) primary legislation
approved body enacts subsidiary laws or bylaws; (4) traditional practices
upheld by the courts; (5) Civil, common, Roman, or other code of law as
source of such principles or practices. (*Law Dictionary: What is a legal
system? definition)
Most of us acknowledge the importance of the legal system in our
society. As members of a community, we have a social obligation to the
people around us to create a safe environment for everyone and make
us feel secure walking the streets and dealing fairly with one another.
However, though we abide by these laws and rules each day, we are not
the ones responsible for their enforcement, whether we choose to break
or follow the law, is up to each person and enforcement falls into the
hands of the criminal justice system.
A system has been defined as considered principles or procedures of

classification. Legal has also been defined as something of or relating to
law; falling within the province of law. Thus, from the above definition
of ‘legal’ and ‘system’, a legal system can be defined as the principles or
procedures for the classification of laws, matters or procedure relating to
them. It can also be defined as a body of rules including the principles,
rules or doctrines associated with them that have the force of law in a
given society.
It should be noted that from a technical standpoint, there are as
much legal systems as there are sovereign independent countries.
For example, Nigeria has its own legal system which has been said to
‘consist of each totality of laws or the legal rules and machinery which
operate within Nigeria as a sovereign and independent African country.
However, on a larger scale sovereign countries are grouped into larger
legal system classifications due to them sharing similar fundamental
characteristics.
The grouping of countries into legal system doesn’t necessarily mean
that all their laws are identical. These individual systems are grouped
into larger classifications because they share similar fundamental
principles. For example, one similar characteristic of common law legal
system is the doctrine of judicial precedent.
1.2.2. Tests of Classification

There is no consensus on the proper criteria for the classification of
legal traditions among legal historians. A great number of researchers
have proposed a variety of criteria in their efforts to categorize systems
into groups. Some of these criteria are: race, geography, language,
sources of law, substance of law, ideology, legal technique and the
system of conception of justice
Some writers such as Zweigert and Kotz argue that it is not possible
to classify legal systems into legal families merely by using a single
criterion. In their view, it is sound to devise a set of tests that go through
all legal systems that are determined to belong to the same family. They
suggest that the critical test is the concept of a style of a legal system. To
them, there is a need to realize their legal styles and to use distinctive
stylistic traits as a basis for putting legal systems into groups. By legal
style, they mean the totality of features that flesh out a distinctive form
of legal systems. The critical thing about legal systems is their style since
the styles of individual legal systems and groups of legal systems are
each quite distinctive. It is not every minor difference between legal
systems, which can rank as an element in their style; only essential
differentiating qualities are distinctive. There can never be any final
proof of what is essential.
The five factors adopted by Zweigert and Kotz are: the stylistic
factors, which enable those who study comparative legal tradition
to identify the families of legal systems and to attribute individuals
systems to them. But the weight to be given to each of these factors
varies according to the circumstances. Ideology is an effective ground for
distinguishing the religious and socialist systems, but does not help you
to distinguish the legal families of the west from one another. There it is
history, mode of thought and distinctive institutions, which distinguish
legal families. Sources of law are distinguishing feature of Islamic and
the Hindu and also help you to divide the Anglo-American from the
continental legal families. But you cannot use sources of law as a basis
for distinguishing between the Germanic, Nordic and Romanistic legal
families.
How many legal styles a scholar identifies and how he/she identifies
them are largely matters of his/her judgment. His/her aim must,
however, be to see the differences in reality, past and present, contained
in distinctive form of economic life. One indication of the importance
of a feature in a legal system is if a person from another system finds
it surprising; if it is easier to discover the stylistically distinctive
elements in a foreign system in one‘s own. Zweigert and Kotz identify
five elements constituting the legal style of any legal system. These are
historical background and development, predominant characteristics
modes of thought in legal matters (especially distinctive institutions),
the kind of legal sources it acknowledges and the way it handles them
and ideology.
1.2.3. Distinctive Mode of Legal Thinking

One of the styles of a legal system is its predominant and characteristic
mode of thought in legal matters. The Germanic and Romanistic
families are marked by a tendency to use abstract legal norms, to have
a well-articulated system containing well-defined areas of law and to
think up and to think in juristic constructions. The European is given to
making plans, to regulating things in advance, to drawing up rules and
systematizing them. He approaches life with fixed ideas, and operates
deductively. The Englishman improvises never making a decision

until he has to. He is an empiricist. Only experience counts for him;
theorizing has little appeal; and so he is not given to abstract rules of
law. Convinced, perhaps from living by the sea that life will controvert
the best-laid plans, the Englishman is content with case law as opposed
to enactments.
Anti-formalism refers to the opposition of legal systems to needless
formality in the law. In private law, this shows itself in consensualism,
that is, the rule that agreement creates contractual obligations, no matter
how it is expressed. Consensualism is found at an advanced stage of
every legal system. The formalism is present in all primitive system.
It also exists in Anglo-American law. In Europe, that tendency to anti-
formalism is strong
The struggle for law is an element in legal thinking, which is found
in several legal families, in deed in all Western law. The principle is that
the goal of law is peace, one must struggle to achieve; it is the duty of a
person, owed both to himself and to the idea of law itself. But this idea
is not true in Far East and Latin American systems where written law
is not very significant in practice. In the West man naturally fight for
his rights and seeks a clear decision, treating a compromise as a thing
perhaps to be settled for, and in the East the face-saving compromise is
the ideal, and a firm decision only a necessary evil.
Ideology
Legal ideology means the political or economic doctrines or
religious beliefs of the system in question. The role of ideology is clear in
the case of the religious belief systems and of the socialist legal systems.
The ideologies of the Anglo-American, Germanic, Romanist and Nordic
families are essentially similar. And it is because of other elements in
their styles that they must be distinguished. Legal ideology separates
socialist law and the religious systems, from the legal families of the
West.
An Alternative Test
Apart from the five stylic factors proposed by Zweigert and
Kotz, there is Professor Rene David`s who holds the position that the
classification of legal traditions should not be based on the similarity
or dissimilarity of any particular legal rules. David proposes two tests
that should be used together namely, legal concepts and techniques of
employed by the system, and the system‘s ideology. Professor David
defines legal ideology as the philosophical, political, and economic

principles of the society in which the legal system operates. By `legal
concepts and techniques`, David means the vocabulary of the law, the
legal fictions employed by the system, hierarchy of sources of law, and
the methodology employed by legal actors within the system. The
following text summarizes the heart of Professor David‘s idea on the
issue of the basis of classification of legal systems:
• From the technical stand point, it is advisable to ask whether
someone educated in the study and practice of one law will
then be capable, without much difficulty, of handling another.
If not, it may be concluded that the two laws do not belong
to the same family; this may be so because of differences in
the vocabularies of the two laws (they do not express the
same concepts), or because the hierarchy of sources and the
methods of each law differed to a considerable degree. The first
criterion, no matter how essential, is nevertheless insufficient,
and it should be complemented by the second consideration.
Two laws cannot be considered as belonging to the same
family, even though they employ the same concepts and
techniques, if they are founded on opposing philosophical,
political, or economic principles, and if they seek to achieve
two entirely different types of society. The two criteria must
be used cumulatively, not separately
David, like Zweigert and Kotz, is of the opinion that particular
rules of substantive law are not decisive for the classification of a legal
system. But all three agree that general principles of law, including
those of substantive law, help to determine the family of a given legal
system. They also agree that legal ideology plays a significant role in
the classification of laws into legal families. The other elements of what
Zweigert and Kotz refer to as legal style appear to correspond to what
David calls as legal concepts and techniques.
Despite these common denominators between the views of David
and Zweigert and Kotz, they have arrived at different classifications.
The latter two assert that there are eight modern legal systems: the
Romanistic, the Germanic, the AngloAmerican, the Nordic, the Socialist,
the Far Eastern, Islamic and the Hindu. The list omits the African
customary, Jewish law and the European Union law. On the other hand,
Professor David‘s criteria of classification lead him to come up with the
following list: the Romano-Germanic, Socialist, the Anglo-American,
Muslim, Hindu, the Far Eastern, and the African and Malagasy
Take note of the fact that some legal systems will not be easily
classified as belonging to one or another group. These are the so-called
hybrid systems, like those in place in Louisiana, Quebec, Scotland, South
Africa, Israel and China. These systems are the products of a mixture of
two or more legal traditions.
1.2.4. Reasons for classification

Categorization of legal systems of the world has a couple of
importance: technical and authority. The first reason for classification
of the major legal systems of the world is technical because the study of
the history of laws of societies is systematic. One best way of studying
legal history and legal traditions is to classify and sub-classify the
major legal traditions of the past and the present. Such division and
sub-division make the study of the subject convenient and gives your
thought some degree of organization. Classification of legal systems
helps you to arrange the mass of legal systems in an understandable
order; understand and assimilate the mass of detail. The second reason
for classification and sub-classification is the issue of authority in the
sense that those legal systems that are grouped together can borrow
legal materials from one another where there are gaps.
1.2.5. Classification of Laws

Etymological meaning of classification is “the process of putting
something into category” or the basic cognitive process of arranging into
classes or categories. For a proper and logical understanding of law its
classification becomes necessary. As it elucidates the way of systematic
logical structure of the legal order. It explicates the inter relation of rules
and their effect to each other. It analysis the law that intern is helpful
in codification of laws it is an arrangement of rules in a concise and
systematic way.
From the above, it can be seen that law is used in multiple senses.
Thus it is imperative for the different types of laws to be considered.
They are:
• Eternal Law
• Divine Law
• Natural Law
• Human or Positive Law
1. Eternal Law: The word eternal means something that would

last forever. Eternal laws are laws that have applied since the
beginning of time and would exist till the end of time. These
laws cannot be changed. A very good example of eternal
law is the law of gravity. From the inception of time, it has
been understood that what goes up must come down. This
law would not be changed and is thus right to be regarded as
eternal.
2. Divine Law: Divine Law is referred to as laws made by a deity
to govern the affairs of man. A good example of divine law
can be found in Islamic law as postulated in the Q’uran. These
laws are said to be given by God to the Prophet Muhammed
in order to guide the affairs of man.
The logic behind the use of divine law stems from the fact
that God, accepted as all knowing and all wise, is in the best
position to make laws for the use of mankind.
3. Natural Law: In the legal sense, natural law can be said to be
law as espoused by the natural law theorists. This law is said
to be the law that is innate in all mankind and can be deduced
through the use of reason. For example, it is accepted in all
cultures that murder is wrong and should be punished.
Natural law is said to be the guide which positive law must
follow in order for it to be valid. If Positive Law is at variance
with natural law, it could lead to injustice in the society.
4. Positive or Human Law: Positive Law can also be regarded
as human law. These are laws made by man in order to guide
the conduct of members of the society. They are laws made
by persons given the authority to do so either directly or
indirectly by the society. Legal positivism doesn’t concern
itself with morals. Once a law has been enacted by persons in
authority, it is valid.
According to Professor HLA Hart, a positivist,

” Law is a command and there is no necessary connection between
law and morals or law as it is (lex lata) and law as it ought to be (de
lege ferenda).” Examples of positivist law include the 1999 Constitution,
Company and Allied Matters Act, Banks and Other Financial Institutions
Act and a host of others enacted by man.
The classifications of law are the different categories into which all
areas of law can be collated. A particular classification of law encompasses
all types of law but it distributes them according to a particular unique
characteristic.
The following are the major classifications of law:
• Public and Private Law
• Civil Law and Criminal Law
• Substantive and Procedural Law
• Municipal and International Law
• Written and Unwritten Law
• Common Law and Equity
Public and Private Law

Public Law can be defined as that aspect of Law that deals with the
relationship between the state, its citizens, and other states. It is one that
governs the relationship between a higher party — the state — and a
lower one, the citizens. Examples of public law include Constitutional
Law, Administrative Law, Criminal Law, and International Law and so
on.
Private law, on the other hand, is that category of the law that
concerns itself with the relationship amongst private citizens. Examples
include the Law of Torts, the Law of Contract, the Law of Trust and so
on.
Civil Law and Criminal Law

Civil law in this regard can be defined as the aspect of Law that deals
with the relationship between citizens and provides means for remedies
if the right of a citizen is breached. Examples of civil law include the
Law of Contract, the Law of Torts, and Family Law etc.
Criminal Law, on the other hand, can be referred to as that aspect
of Law that regulates crime in the society. It punishes acts which are
considered harmful to the society at large. An example of criminal law
is the Criminal Code Act which is applicable in the Southern part of
Nigeria.
When treating a criminal case, the standard of proof to be used
is proof beyond reasonable doubt; S.135 Evidence Act 2011. Also, the
burden of proof does not shift from the prosecution. What this means
is that before a conviction can be gotten, the state has to prove the
commission of the crime to be beyond reasonable doubt.
On the other hand, in civil cases, the standard of proof is on the
balance of probabilities; S.134 Evidence Act 2011. Also, the burden of
proof shifts between both parties when they need to establish their case.
Judgement normally goes in favour of the particular party that has been
able to prove its case more successfully.
Substantive and Procedural Law

Substantive Law is the main body of the law dealing with a
particular area of law. For example, the substantive law in relation to
Criminal Law includes the Criminal Code Act and the Penal Code Act.
Procedural law, on the other hand, is law in that deals with the process
which the courts must follow in order to enforce the substantive law.
Examples include the rules of the various courts and the Administration
of Criminal Justice Act 2015, which is the procedural law in relation to
the Criminal Code Act and the Penal Code Act.
Municipal/Domestic and International Law

Municipal/Domestic law is the aspect of law which emanates from
and has effect on members of a specific state. An example of a municipal
Nigerian law is the Constitution of the Federal Republic of Nigeria
1999(as amended) which applies in only Nigeria.
International law, on the other hand, is the law between countries. It
regulates the relationship between different independent countries and
is usually in the form of treaties, international customs etc. Examples of
International law include the Universal Declaration of Human Rights
and the African Charter on
Human and People’s Rights.

It should be noted that according to the provision of S.12 of the
1999 Constitution (as amended) International treaties cannot have the
force of law in Nigeria except they are enacted by the Nigerian National
Assembly.
Written and Unwritten Law

A law would not be regarded as written just because it is written
down in a document. Written laws are those laws that have been validly
enacted by the legislature of a country.
Unwritten laws, on the other hand, are those laws that are not
enacted by the legislature. They include both customary and case law.
Customary Law as part of its basic characteristic is generally unwritten.
Case law, though written down in a documentary format, would be
regarded as unwritten law based on the fact that it is not enacted by the
legislature.
An example of this is the good neighbour principle established in the
case of Donoghue vs. Stevenson. The principle posits that manufacturers
of products should take utmost care in their manufacturing activities to
ensure that the consumption of their product doesn’t result in harm to
the consumer. This principle is not enacted in a statute but is a case law
which is applicable in Nigerian Courts.
Common Law and Equity

In the legal sense, the term common law means the law developed
by the old common law courts of the King’s Bench, the Courts of
Common Pleas and the Courts of Exchequer. The English common law
is regarded as such because it is law common to all parts of England.
It grew over time from the practices, customs and way of life of the
people. It is largely unwritten. The first common law judge was the King
himself. People who had disputes usually brought them to the King to
settle them.
However, due to matters of state, the king didn’t have time to settle
all cases. As a result of this, the king appointed members of his court
who were to settle disputes in his stead. These judges had the authority
of the king and any disobedience to them was treated as disobedience to
the king and punishment was swift.
These different judges travelled the length and breadth of the realm
to settle disputes. When they got to a particular location, they applied
the customary law in that location in order to settle disputes. Regularly,
these different itinerant judges would come together to compare the
different customary laws they encountered on their travels.
They discarded customs that were thought to be insensible and
accepted those which were sensible. This led to the conglomeration of
different customs which were then applied all through the realm. This
then metamorphosed into the common law of England.
However, the common law was strict, formal and full of legalism.
One example of this was in its system of writs. If an action did not fit
into a writ, there was no remedy for such action. Also, the only remedy
available in common law was that of damages.
Due to the harshness of common law, the people petitioned the
King directly for judgment. The Lord Chancellor, as the King’s Prime
Minister, was the one that dealt with most of these petitions. His court
was called the Court of Chancery/Equity. The Lord Chancellor, was
usually a bishop and thus, he applied the principle of fairness and
natural law in making his decisions.
Subsequently, there was conflict between the common law court and
the court of chancery. This conflict came to head in the Earl of Oxford’s
case. In this case, the plaintiff was the assignee of a lease and he built a
house and planted a garden on the land. Subsequently, the defendant/
owner of the land sought to evict him from the land. The assignee thus
sued and lost at common law, and he appealed to the court of chancery.
The court of equity accepted his petition and allowed him to stay on
the land. The reasoning of the Lord Chancellor, Lord Ellesmere, was that
by natural law, it was only fair and just for a person who builds a house
to be able to live in that house.
This judgment prompted Lord Coke, the Chief Justice of the King’s
Bench to accuse the Lord Chancellor of frustrating the rules of common
law. The matter was brought to the King who referred it to Lord Francis
Bacon. Francis Bacon supported the court of equity and ruled that
whenever there was a clash between common law and equity, equity
would prevail.
This ruling however, did not help to completely solve the problem
between the two courts. This was due to the fact that the common
law courts could only grant the remedy of damages and thus, anyone
seeking a different remedy would first pass through the common law
courts before going to equity.
Over the years, the two systems were merged till finally, in 1875, the
Judicature Act fused the two systems into one court. However, although
they are applied in one court, the rules of common law and equity can
be distinguished from each other. This is what prompts the statement
“Although the two streams now flow into one, their waters do not mix.”
1.2.6. Public and Private Law

Public laws deals with the relationship between states and private
laws deals with the relationship between private individuals.
Public Law
Public law is the part of law that governs relations between legal
persons and a government, between different institutions within a state,
between different branches of governments, as well as relationships
between persons that are of direct concern to society. The activities of
the state are regulated by public law.
It determines and controls the organization and functioning of the
state and also determines the relationship of the state with its subjects.
The term ‘public’ means a state or a sovereign part of it or a body, or a
person holding a delegated authority under the state.
Public law can be further divided into: –
• Constitutional Law: –
Constitutional Law is thelaw that Hints
determines the nature of the state
and the structure of government. Private law
It is above and supreme from is that part of a civil
the general law of the land. law legal system
It describes the structure and which is part of the
jus commune that
function of the three organs of
involves relation-
the state. Ordinary law derives its
ships between indi-
value from constitutional law. viduals, such as the
• Administrative Law: – law of contracts and
Administrative law is the body torts, and the law of
of law that gives permission for obligations.
the creation of public regulatory
agencies and includes all the
laws, judicial decisions, and rules. This law is created by
administrative agencies and the purpose is to implement their
powers and duties in the form of rules, regulations, orders
and decisions.
• Criminal Law: – It is the body of law that defines criminal
offenses, regulates the cognizance, create charges and trial
of suspects, and also fixes the methods of punishment and
treatment applicable to convicted offenders. Its purpose is to
stop crime and punish the wrongdoer.
Private Law
Private law is the branch of law that deals with the rights and duties
of private individuals and the relationship between them. Private law
deals with the rights and obligations of individuals, families, businesses
and small groups and exists to assist citizens in disputes involving
private matters.
Further classification of private law is as follows: –
• Law of the person
• Property law
• Law of liability conflict of laws
The law of liability is divided into 3 classes: –
• The contracts
• Quasi-contract
• Torts
Civil Law and Criminal Law

Civil Law deals with Property, Money, Housing, Divorce, custody
of a child in the event of divorce etc. Criminal Law deals with offences
that are committed against the society. It mets out varying degrees of
punishment commensurate with the crime committed.
Civil Law
Civil law deals with behavior that causes injury to an individual
or other private party, such as a corporation. Example of civil law is
defamation, breach of contract, negligence which is resulting in injury
or death, and property damage. In civil law, cases are initiated (suits
are filed) by a private party (the plaintiff); cases are usually decided
by a judge; punishment almost always consists of a monetary award
and never consists of imprisonment; the plaintiff must establish the
defendant’s liability only according to the “preponderance of evidence”;
and defendants are not entitled to the same legal protections as are the
criminally accused.
Criminal Law
Criminal law deals with behavior that can be recognized as a crime
against the public, society, or the state – even if the immediate victim
is a person. Examples of the same are murder, assault, theft and drunk
driving. In criminal law, it deals with looking after public interests. It
involves punishing and rehabilitating offenders, and protecting the

society. The police and prosecutor are hired by the government to put the
criminal law into effect. Public funds are used to pay for these services.
If suppose you are the victim of the crime, you report it to the police
and then it is their duty to investigate the matter and find the suspect.
In most cases, if a charge has been properly presented and if there is
evidence supporting it, the Government, not the person who complains
of the incident, prosecutes it in the courts.
Difference between Civil and Criminal Law

S.No. Civil Law Criminal Law
1. Civil law deals with the Criminal law deals with crimes that
disputes between individuals, are committed against society. Crimi-
organizations, or between the nal law is the body of law that deals
two, in which compensation is with crime and the legal punishment
awarded to the victim. of criminal offenses.
2. According to civil law, It serves different degrees of punish-

the wrongdoer has to pay ment for the crime committed.
compensation to the affected
organization or person.
3. Civil law deals with property, Criminal law deals with serious
money, housing, divorce, crimes like murder, rape, arson, rob-
custody of a child in the event bery, assault etc.
of a divorce, etc.
4. Civil law is initiated by a The government files a petition in a

person or organization or also criminal law case.
known as the plaintiff. ‘
5. In the case of civil law, there is As a matter of criminal law, the

no punishment like criminal punishment is done according to the
law, but the aggrieved party severity of the offense or a fine can be
receives compensation and the imposed.
dispute is resolved.
6. Criminal law is the body of “Beyond a reasonable doubt”: Burden

law that deals with crime and of proof is always on the state/govern-
the legal punishment of crimi- ment.
nal offenses.
Substantive Law and Procedural Law

The Substantive Law is a statutory law that defines and determines
the rights and obligations of the citizen to be protected by law. Procedural
Law or Adjective Law deals with the enforcement of Law that is guided
and regulated by the practice, procedure and machinery.
Substantive Law
Substantive law is the law which governs the original rights and
obligations of individuals. Substantive law may derive from the
common law, statutes, or a constitution. For example, a claim to recover
for breach of contract or negligence or fraud would be a common law
substantive right. This law refers to the body of rules that determine the
rights and obligations of individuals and collective bodies.
Procedural Law
Procedural law establishes the legal rules by which substantive law
is created, enforced and applied, especially in a court of law. Procedural
law refers to the different processes through which a case proceeds.
Procedural laws define the rules with which substantive laws may be
enforced
Difference between Substantive and Procedural Law

S.No. Substantive Law Procedural Law
1. It establishes the rights, obliga- It follows the means and methods

tions and duties of other per- through which adequate legisla-
sons or persons with the state. tion is enforced.
2. It has independent powers to It has no independent authority to

decide the fate of each case. decide the fate of each case.
3. This law cannot be applied in This law can be applied in both

non-legal contexts. legal and non-legal contexts.
4. It does not specifically deal with It deals with what is happening

proceedings inside a court. inside the court.
5. These laws are regulated by These laws are regulated by statu-

Acts of Parliament or govern- tory laws.
ment implementation.
1.2.7. International and National Law

International laws are considered superior to national laws. This
seems quite obvious as the States apply international rules to prepare
their national laws. But, the relationship between the two is still
complicated and not yet clear.
International law refers to the general set of rules or principles that

help in resolving international problems like laws of the sea, the dispute
between two countries, the part of the land that belongs to which
country, how to maintain international behavior, etc. However, the point
to be noted here is that international laws are a standard system of rules
which apply to all countries. So, it depends on each country how to
apply these rules and pass the law for their land.
Components of International Law

The entities which have an obligation towards the international law
are:
• The States: The international legal system is dominated by the
States. The States inculcate the international legal rules and
enforce them as laws of their land. It is the States who can
become members of the International Court of Justice and
other organizations. The States have to constantly evolve. To
maintain international relations, States must be recognized
by the other States. With the emergence of newly recognized
States, the balance of power can be changed and international
relations can run smoothly.
• International organizations: International organizations are
established by the States to maintain a balance in international
relations. For example, the United Nations was a combined
effort of the States to maintain peace after World War II.
Each international organization has different obligations and
duties set by international law. One of the main organs of
the United Nations, the International Court of Justice has the
power to challenge the decisions of the States in the context of
international laws.
• Role of the individuals: Individuals play a very important role
in the formation of the international legal system. The legal
rules mentioned in the international law do not include the
individuals but, indirectly the obligations mentioned for
the States apply to the individuals because, if an individual
is happy then, the State flourishes. Individuals are linked
to each State by their nationality. Nationality is acquired by
birth, acquisition, naturalization, etc. Each state has different
criteria for acquiring nationality.
Sources of International Law

Article 38(1) of the Statute of the International Court of Justice has
mentioned a few sources of international law, which are as follows:
• Treaties: Rules given by international law are mainly in the
form of treaties. Treaties are given various other names like
conventions, agreements, rules, etc. Treaties were the only
source of hope in times of war. Although, some treaties have
also ignited wars, for example, the Treaty of Versailles. Post
the war phase, the Vienna Convention on the Law of Treaties
(1969) was set up. This Convention is also known as the law of
treaties. It contains everything about how treaties should be
formed. The important point of notice here is that all treaties
are binding only on the States and not any third party.
• Customs: Customs are followed by two nations while
maintaining international relations with each other. Custom is
a practice that is accepted as a law by the States over a period
of time. Customary law rules are binding in all States. The
States are generally the main contributors in establishing a
new custom. For example, in the Cold War era, the United
States and the Soviet Union came up with new customs
regarding Space laws. The ICJ also refers to a lot of customs
while delivering judgments.
The International Law Commission

The United Nations International Law Commission was established
in 1948. The ILC has thirty-four members. The main function of the
ILC is to codify international laws. The International Law Commission
prepares draft articles for the international laws over a period of time
and then submits the draft to the United Nations General Assembly for
a draft convention.
• General principles of law: General principles are recognized by
many nations, so they are an important source of International
law. Not all disputes between nations are resolved by treaties.
General principles are used when there is no provision for
treaties. General principles can be seen in all legal systems.
Examples of these general principles are good faith, the
impartiality of judges, laches, etc.
The link between National and International Law

As mentioned above, the individual actors have no legal obligations
under the international law, however, it is individuals who have
mentioned certain theories which stand out as the distinctive feature
when talking about national and international laws. The two very
important ones are referred to as dualism and monism.
• Dualism: Under a dualistic tradition, the national legal system
is considered completely different from the international legal
system. In this context, the international rules will be valid
only in the international legal circuit and not in the domestic
legal order. According to this theory, international law applies
to laws between the states and national law applies to laws
within each state.
• Monism: The monism theory of international law is exactly
the opposite of the dualistic theory. This theory states that
international and national laws should be combined into one
legal order. On this basis, there will be a balance between both
national and international laws. The main exponents of this
theory were Hans Kelsen and Hersch Lauterpacht.
• Hersch Lauterpacht’s views on monism: Lauterpacht observed
that it is the individuals that drive international laws. The
States exist on their own. International law is the best source
of justice for individuals and human affairs.
• Hans Kelsen’s views on monism: According to Kelsen, monism
is established in international law and national law is part of
the same legal order. Kelsen formulates that the States should
behave according to the customs. Thus, Kelsen developed
a monistic theory of the relationship between national and
international law.
Consent theory
The key exponents of the consent theory were Triepel and Anzilotti.
According to the consent theory, the will of the State is binding on
international law. It is the will of the State that rules the international
and national laws.
Dionisio Anzilotti and Heinrich Triepel’s views

Dionisio Anzilotti an Italian jurist observed that the maxim ‘pacta
sund servanda’, which means agreements between States should be
respected, is the binding force behind international law. He further

states that the treaties and customary rules are all based on the consent
of the States. Similarly, Heinrich Triepel also stated that the common
will of the States and the agreement between the States was the basis of
international law.
The major defect in the consent theory is the fact that there has to be
the consent of the States for the international laws to function. Further,
treaties and customs are not the only sources of international law. Article
38(1) of the Statute of the International Court of Justice, proves this fact.
Despite the criticisms, consent theory has influenced international laws.
Case laws
Lagrand case (2001)
• Two Lagrand brothers were involved in a bank robbery in
Arizona USA and killed a man during the robbery. Both the
brothers were from Germany and were in the United States
without US citizenship. They were charged for murder and
were awarded the death penalty. They were not provided
with consular assistance under the Vienna Convention and
were both hanged to death.
• Germany filed a suit against the United States in the ICJ
stating that the United States did not give the brothers their
rights under the Vienna Convention. Now, Article 36(1)(b) of
the Vienna Convention on Consular Relations, 1963 states that
the foreigners involved in a death penalty case have a right
to get consular assistance. Before the case went to the ICJ, the
Germans were hanged to death.
• The court observed that the United States had breached its
obligations given under the Vienna Convention. The court
further held that the United States had violated individual
rights given to the foreigners under the Vienna Convention.
Anglo-Norwegian fisheries case (1951)

• In 1911, a few British boats were seized by the Norwegian
Authorities for crossing the boundaries within which fishing
for foreigners was prohibited. The United Kingdom filed a
suit against the Norwegian Government for this incident. The
Norway Government had passed an order in 1935 regarding
the delimitation of the Norwegian fisheries zone in which the

boundaries for fishing were drawn.
• The United Kingdom claimed damages as compensation
by the Norwegian authorities and also the validity of the
fisheries lines. The ICJ mainly relied on the Maritime laws and
held that the line drawn by the Norwegian Government for
the delimitation of the fisheries zone was not contrary to the
international law. Hence, the case went in favor of Norway.
Bosnian genocide case (1996)

• When Yugoslavia broke up in the 1990s, Bosnia and
Herzegovina declared independence. In the events following
this, Serbia and Montenegro declared themselves the Federal
Republic of Yugoslavia. The Serbian forces attacked the
Bosnian Muslim population killing around eight thousand
people during the armed conflicts going on in Bosnia and
Herzegovina.
• The Bosnian Government filed a suit against the Federal
Republic of Yugoslavia in the International Court of Justice
claiming that the Serbian forces had violated the Prevention
and Punishment of the Crime of Genocide Convention and
that the Federal Republic of Yugoslavia was responsible for
this act.
• The ICJ held that an act done by a State organ will be
considered as an act by the State. This rule was stated in
Article 4 of the International Law Commission Articles of
State Responsibility.
Corfu Channel case (1949)

• During the Greece Civil War, in an encounter between
Albania and the United Kingdom, two British warships which
were passing through the Corfu Channel were fired at by
the Albanian forces. The Albanian Government took a stand
by stating that no foreign ships can pass through Albanian
waters without prior permission. The United Kingdom
contended that the ships can pass through any strait or
channel for international navigation purposes. The Albanian
Government claimed that the Corfu Channel is not a part of
the international highways through which ships have a right
of passage.
• The dispute went to the International Court of Justice. The

court held that the Corfu Channel is a part of the international
highways hence, a right of passage cannot be prohibited in
times of peace by a coastal State. Hence the judgment went in
favor of the United Kingdom.
The Difference between International Law and National

Law
The definition of international law centers on the word “inter,”
which means “between,” as opposed to “intra,” which means “within.”
So, literally, “international law” is defined as “law between nations
(States),” which stem from agreements, embodied in a treaty, or customs
that is recognized by all nations. According to Article 38 of the Statute
of the International Court of Justice, sources of international law, in
order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations; and (d)
judicial decision and the teachings of the most highly qualified publicists
of the various nations.
National law, which is often referred to as domestic law, are those
laws that exist “within” a particular nation (State). National laws are
also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such
as the United States Congress or the French Parliament. In some States,
called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States,
called States with a civil law tradition, do not recognize judge made law,
but only laws enacted by the legislature.
In 1936, the United States Supreme Court explained the difference
between the two laws. In particular, the case centered on a joint resolution
passed by the Congress on May 28, 1934, that prohibited the sale of arms
and munitions of war in the United States to Bolivia, and a proclamation
by the President on the same day that established an embargo in order
to carry out the joint resolution. The defendant, Curtiss-Wright Export
Corporation, was indicted for violating the joint resolution.
In United States v. Curtiss-Wright Export Corporation, the defendant
was alleged to have sold fifteen machine guns headed to Bolivia in
violation of the joint resolution. Federal legislation includes bills and
joint resolutions that are signed by the United States President and
made into law. As part of its decision, the Supreme Court needed to
distinguish between the joint resolution, being a Congressional law, and
the power of the President under international law. The Supreme Court
stated, “Neither the Constitution nor the laws passed in pursuance of it
have any force in foreign territory unless in respect of our own citizens,
and operations of the nation in such territory must be governed by
treaties, international understandings and compacts, and the principles
of international law.”
“The laws of no nation can justly extend beyond its own territories
except so far as regards is own citizens. They can have no force to
control the sovereignty or rights of any other nation within its own
jurisdiction.” In other words, Congressional legislation has no effect
beyond the territorial borders of the United States, but when the United
States operates in a foreign State it is bound by international laws.
Legislation of every independent State, to include the United States
Congress, is not a source of international law, but rather a source of
national law of the State whose legislature enacted it. In The Lotus case,
the international court stated, “Now the first and foremost restriction
imposed by international law upon a State is that—failing the existence
of a permissive rule to the contrary—it may not exercise its power in any
form in the territory of another State.
After two failed attempts to acquire Hawai‘i by a treaty, which is
international law, from an insurgency established by the United States
diplomat on January 17, 1893, and admitted by President Grover
Cleveland to be unlawful, the United States Congress enacted a joint
resolution “purporting” to annex the Hawaiian Islands on July 6, 1898,
and President William McKinley signed it into United States law the
following day. The President and Congress stated it was a military
necessity to annex the Hawaiian Islands during the Spanish-American
War in order to protect the west coast of the United States from foreign
invasion.
1.2.8. Substantive and Procedural Law

Both substantive and procedural laws are inevitable components of
law of any civilized society. One without the other has neither any useful
and meaningful existence nor any significance as well. Both, substantive
law and procedural law, are mutually reinforcing and one acquires
greater meaning and validity in presence of the other. Both these laws
have their own functions and significance.

For a civil wrong, law calls upoil and forces the wrong-doer to
perform his part of contract; to do the act in question which it was his
legal duty or obligation to have done the very act, or the failure or the
denial to do which is the wrong in question against which remedy is
sought. Where such performance, known in legal language as specific
performance, is not possible then the wrong-doer is liable to pay damages
or compensation to the one who suffers from such wrong. It could be a
wrong against any private person or against society as such, or against
the State itself. State has right and power to maintain the law and order
within the community, to keep society intact, if it has been disturbed. A
criminal wrong, on the other hand, has an altogether different character.
A criminal wrong is an act or omission which is made punishable by
any law for the time being in force; and, in legal language, it is called
an offence. Substantive law deals with the “substance” of your charges,
in case of any crime done against the other. Every charge is comprised
of elements. Elements are the specific acts needed to complete a crime.
Substantive law requires that the prosecutor prove every element of a
crime in order for someone to be convicted of that crime.
For example: Suppose you are charged with a felony driving while
intoxicated.
Here, at four States the prosecutors are required to prove that:
• You were driving or operating a motor vehicle.
• Driving on a public roadway.
• Driving while you were intoxicated.
• And that you have prior convictions, if any, for driving while
intoxicated.
Substantive law is the statutory or written law that governs rights
and obligations of those who are subject to it. It defines the legal
relationship of people with other people or between them and the
State. In other words, substantive law defines, in regard to a specific
subject, the legal rights and relationship of people with other people or
as between them and the State. Substantive law defines civil rights and
responsibilities liabilities in civil law as well as crimes and punishments
in the criminal law. It is codified in legislated statutes or can be enacted
through the initiative process.
Procedural Law System

The law which tells about how the courts and the officers dealing
with the law act in giving effects to the substantive law of the land is
known as Adjectival 01- Procedural law. ‘Civil’ and ‘Criminal’ laws are
not two water-tight compartments. There are several wrongs for which
there are both civil and criminal liabilities and there may be actions
which are both civil and criminal in nature. The law of procedure is
that branch of law which governs the process of litigation. It embodies
the rules governing the institution and prosecution of civil and criminal
proceedings. Procedural law comprises the rules by which a court
hears and determines what happens in civil or criminal proceedings.
Historically, the law known to many is substantive law, and procedural
law has been a matter of concern to those who used to preside as
judicial officers or those who advocate law. But, over time, the courts
have developed rules of evidence and procedure, which also fall
under procedural law mostly related to fairness and transparency of
the process. The word ‘actions’ is used in the sense to include all legal
proceedings. Procedural law deals with the means and instruments by
which the ends of administration of justice are attained, i.e. effective
administration or application of substantive law. Procedural law is
the vehicle providing the means and instruments by which those ends
are attained. It regulates the conduct of the Courts and the litigants in
respect of the litigation itself, whereas substantive law detentions their
conduct and relations in respect of the matters litigated.
In brief, the procedural law:
• informs about the process that a case will go through (whether
it goes to trial or not);
• determines how a proceeding concerning the enforcement of
substantive law will occur; and
• Prescribes the practice, procedure and machinery for
enforcement of the rights and liabilities.
The Indian Evidence Act, the Limitation Act, the Code of Civil
Procedure, the Code of Criminal Procedure are instances of procedural
law
Interrelationship and Differences between Substantive Law

and Procedural Law
It is interesting for us to know the relationship and differences, if
any, between the substantive law and procedural law.
Both are related to each other as follows.
• Substantive law and procedural law are the two main
categories within the law. One without the other is useless.
Both are essential for delivery of justice.
• Procedural law is an adjunct or an accessory to substantive
law and renders the enforcement of substantive rights very
effective.
• Both, substantive law and procedural law, are codified in the
form of rules. While the substantive law refers to the body of
rules that stipulate the rights and obligations of individuals
and collective bodies, the procedural law is also the body of
rules, but governing the process of determining the stipulated
rights and liabilities of the parties in the given facts and
circumstances.
• Substantive laws and procedural laws exist in both civil and
criminal laws. But, in criminal law, if the procedural law is
used to prevent commission of offences then it assumes the
character of substantive law as well
We also need to understand the difference or the distinction between
the substantive law and procedural law. Substantive law precedes the
procedural law. Procedural laws sub-serve the substantive laws in the
sense that the former will act as a means to promote and achieve the
interests, objectives, aims or goals of the latter.
It is vitally important to keep in mind the essential distinction
between substantive and procedural law. Substantive law creates
rights and obligations, and is concerned with the ends which the
administration of justice seeks to attain. It defines the actual law set
down by the legislature, such as elements of a right, liability obligation,
crime, penalties to be imposed, rules of evidence, etc. Procedural law
defines the manner in which the case proceeds and will be handled. In a
criminal case, if the state violates a substantive rule of law, that is more
likely to result in reversal of a conviction than a violation of criminal
procedural law (unless the violation relates to a constitutional or legal
protection)
We can conclude that the substantive law defines the rights and
duties, while procedural law provides the machinery or mechanism
for enforcing the rights and duties. However, the clear differentiation
between substantive law and procedural law is that the latter sub-serves
the former. Even though both these laws are affected by Supreme Court
opinions and are subject to constitutional interpretations, each serves a
different function in the civil and criminal justice system. A legal action
is started by taking out a writ in civil case, by a summon or an arrest in
a Criminal case, and ends by the trail and judgment in the court itself,
followed by the execution of the judgment.
Whether the law is civil or criminal, it may all be classified as
substantive law and procedural law. From this point of view, we may
divide law into 4 branches as follows: i) Civil Substantive law, ii)
Civil Procedural law, iii) Criminal Substantive law, and iv) Criminal
Procedural law. With the above clarity on the concepts of substantive law
and criminal law as well as the relationship and the distinction between
the two broad braches of law, let us now have a look at the substantive
and procedural laws with special reference to civil and criminal laws.
Procedural Law vs. Substantive Law

Procedural law consists of the set of rules that govern the proceedings
of the court in criminal lawsuits as well as civil and administrative
proceedings. The court needs to conform to the standards setup by
procedural law, while during the proceedings. These rules ensure fair
practice and consistency in the “due process”.
Substantive law is a statutory law that deals with the legal
relationship between people or the people and the state. Therefore,
substantive law defines the rights and duties of the people, but
procedural law lays down the rules with the help of which they are
enforced. The differences between the two need to be studied in greater
detail, for better understanding.
Comparison chart
Procedural Law versus Substantive Law comparison chart
Procedural Law Substantive Law
Definition Deals with and lays Deals with those areas of law which
down the ways and establish the rights and obligations of
means by which individuals , what individuals may or
substantive law can be may not do
enforced
Powers No independent powers Independent powers to decide the fate
of a case
Application Can be applied in non- Cannot be applied in non-legal contexts
legal contexts
Regulation By statutory law By Act of Parliament or goverment
implemation
Differences in Structure and Content

In order to understand the differences between the structure and
content of substantative and procedural law, let’s use an example. If a
person is accused and undergoing a trial, substantive law prescribes the
punishment that the under-trial will face if convicted. Substantative law
also defines the types of crimes and the severity depending upon factors
such as whether the person is a repeat offender, whether it is a hate
crime, whether it was self-defense etc. It also defines the responsibilities
and rights of the accused.
Procedural law, on the other hand, provides the state with the
machinery to enforce the substantive laws on the people. Procedural
law comprises the rules by which a court hears and determines what
happens in civil or criminal proceedings. Procedural law deals with the
method and means by which substantive law is made and administered.
In other words, substantive law deals with the substance of the case,
how the charges are to be handled and how the facts are to be dealt
with; while procedural law will give a step by step action plan on how
the case is supposed to proceed in order to achieve the desired goals.
Therefore its procedural law that helps decide whether the case requires
trial or otherwise.
Powers of Substantive vs. Procedural Laws

Substantive law is an independent set of laws that decide the fate of
a case. It can actually decide the fate of the under-trial, whether he wins
or loses and even the compensation amounts etc. Procedural laws on the
other hand, have no independent existence. Therefore, procedural laws

only tell us how the legal process is to be executed, whereas substantive
laws have the power to offer legal solution.
Differences in Application
Another important difference lies in the applications of the
two. Procedural laws are applicable in non-legal contexts, whereas
substantive laws are not. So, basically the essential substance of a trial is
underlined by substantive law, whereas procedural law chalks out the
steps to get there.
An example of substantive law is how degrees of murder are
defined. Depending upon the circumstances and whether the muderer
had the intent to commit the crime, the same act of homicide can fall
under different levels of punishment. This is defined in the statute and
is substantive law.
Examples of procedural laws include the time allowed for one party
to sue another and the rules governing the process of the lawsuit.
Key Differences between Procedural Law and Substantive

Law
The fundamental differences between procedural law and
substantive law, are discussed in the points given below:
• By procedural law, we mean the law that prescribes the
methods, procedure and machinery for the enforcement of
rights and obligations. On the other extreme, substantive law
alludes to the law that deals with the subject matter of the case
and states the rights and obligations of the parties concerned.
• While procedural law determines the manner in which the
case is filed or appeal is made, the substantive law regulates
the conduct of the individual or government agency.
• The procedural law creates the mechanism for the enforcement
of the law. Unlike substantive law, which states the rights and
obligations of the citizens.
• The procedural law applies to both legal and non-legal
matters. Conversely, the substantive law cannot be applied to
non-legal matters.
• The statutory law regulates the procedural law, whereas
substantive law is governed by the act of parliament.
• The procedural law is all about the initiation and prosecution

of civil and criminal proceedings. As against, the substantive
law pertains to the rights and duties of parties concerned and
punishment for the wrongdoer.
• The procedural law deals with the affairs inside the court like
appealing, presenting evidence, representation of counsel,
pleading, reviewing etc. Unlike, substantive law which is
concerned with matters outside the court, like fundamental
rights and liabilities of the members of the society.
Equivalent- Procedural and Substantive Rules/Principles

Although the distinction between Substantive Law and Procedural
Law is sharply drawn in theory, there are many rules of procedure which,
in their practical operation, are wholly or substantially equivalent to
rules of Substantive Law. Of these equivalent Procedural and Substantive
principles there are at least three classes as discussed below:
• An exclusive evidential fact is practically equivalent to a
constituent element in the title of the right to be proved.
e.g. the Rule of Evidence that a Contract can be proved only
by writing corresponds to a Rule of Substantive Law that a
Contract is void unless reduced to writing.
• Conclusive evidential fact is equivalent to and tends to take
the place of the fact proved by it. For example:
– A child under the age of eight years is incapable of
criminal intention is a rule of evidence, but differs only
in form from the substantive rule that no child under
that age is punishable for a crime.
– The acts of a servant done about his master’s business
are done with his master’s authority is a conclusive
presumption of law, and pertains to procedure; but
it is the forerunner and equivalent of our modern
substantive law of employer’s liability
– A ‘Bond’ (that is to say, an admission of indebtedness
under seal) was originally operative as being conclusive
proof of the existence of the debt so acknowledged; but
it is now itself creative of a debt; for it has passed from
the domain of procedure into that of Substantive Law.
• The limitation of actions is the procedural equivalent of the pre-
scription of rights. The former is the operation of time in severing
the bond between right and remedy; the latter is the operation of
time in destroying the right.
1.2.9. Common Law Legal System

The common law legal system is one which revolves around the
principle of stare decisis which means ‘let the decision stand’. It is
further explained as a golden rule which states that decisions of higher
courts are binding on lower courts and decisions of courts of coordinate
jurisdiction are for all intents and purposes binding between them.
The term common law has many connotations. The first three set out
here are the most-common usages within the legal community. Other
connotations from past centuries are sometimes seen and are sometimes
heard in everyday speech.
Common law is the body of law created by judges and similar
quasi-judicial tribunals by virtue of being stated in written opinions. The
defining characteristic of “common law” is that it arises as precedent. In
cases where the parties disagree on what the law is, a common law court
looks to past precedential decisions of relevant courts, and synthesizes
the principles of those past cases as applicable to the current facts. If
a similar dispute has been resolved in the past, the court is usually
bound to follow the reasoning used in the prior decision. If, however,
the court finds that the current dispute is fundamentally distinct from
all previous cases (called a “matter of first impression”), and legislative
statutes are either silent or ambiguous on the question, judges have the
authority and duty to resolve the issue (one party or the other has to
win, and on disagreements of law, judges make that decision). The court
states an opinion that gives reasons for the decision, and those reasons
agglomerate with past decisions as precedent to bind future judges
and litigants. Common law, as the body of law made by judges, stands
in contrast to and on equal footing with statutes which are adopted
through the legislative process, and regulations which are promulgated
by the executive branch (the interactions among these different sources
of law are explained later in this article). Stare decisis, the principle that
cases should be decided according to consistent principled rules so that
similar facts will yield similar results, lies at the heart of all common law
systems.
The common law—so named because it was “common” to all the
king’s courts across England—originated in the practices of the courts
of the English kings in the centuries following the Norman Conquest
in 1066. The British Empire later spread the English legal system to its
far flung colonies, many of which retain the common law system today.
These “common law systems” are legal systems that give great weight
to judicial precedent, and to the style of reasoning inherited from the
English legal system
Historical Development of the Common Law Legal System

The period of the historical development
of common law can be traced to the Norman
conquest of the British isles in 1066 AD. Before Hints
the Norman conquest, the indigenous British
peoples had their indigenous customary Common
laws. In 1154 Henry II became king. He had law places an em-
the practice of sending Judges from his central phasis on precedent
while allowing some
court to hear disputes throughout the realm.
freedom for inter-
When these judges returned from their tour, pretation. The value
they would discuss the various customary of a common-law
laws they had encountered in their journeys. system is that the
The judges would then agree on which of law can be adapted
these customs were more reasonable and to situations that
they would then be applied in subsequent were not contem-
disputes throughout the realm. This is why plated at that time
the common law is usually described as by the legislature.
having judge made laws. Judges made law
operated as the primary source of law until
parliament acquired the powers to make statutes. It should however be
noted that most of these statutes are in line with the fundamental tenets
of the judge made laws.
The common law legal system was transferred by England to
her colonies. This they did with the aid of reception laws. One of the
reception statutes in Nigeria is S.32 of the Interpretation Act which
provides that the rules of common law, doctrines of equity and
statutes of general application that were applicable before 1st January
1900 shall be applicable in Nigeria. Countries that practice common
law include: Nigeria, United states of America(excluding Louisiana),
Canada(excluding Quebec), India and most other former British colonies.
Features of the Common Law Legal System

• It operates the doctrine of judicial precedent. In the case of
Global transport vs. free enterprises Nig ltd, judicial precedent
was described as meaning that decisions of courts of superior

record are binding and the decisions of courts of coordinate
jurisdiction are for all intents and purposes binding between
them.
• The method of adjudication is adversarial in contrast to
inquisitorial. This means that judges are not expected to leave
the bench and come into the field.
• Unlike civil law, most of the laws in common law legal system
are not codified.
• Also, the jury system originated in common law. It is however
not practiced in Nigeria.
• Unlike the civil law its judges are not career judges. Before a
person can be a judge in a common law legal system he has
to have been a practicing lawyer for a while. This can be seen
in the provisions of S.250(3) CFRN 1999 provides that for a
person to be judge of the high court, he must have been a legal
practitioner for not less than 10 years.
• In the common law, judges make law through their various
decisions.
The Civil Law Legal System

Civil law legal system is one which originated from the Roman
empire and whose primary feature is codification. Also, in comparison
to common law, the doctrine of judicial precedents does not apply in
civil law courts. Historically, civil law encompasses the legal ideas and
systems derived from the code of Justinian but heavily overlaid by
Napoleonic, Germanic, Canonical, feudal and local practices as well
doctrinal strains such as natural law, codification and legal positivism.
Historical Development of Civil Law Legal System

The civil law legal system takes the Roman law as its major
inspiration and in particular the code of Justinian. The Justinian Code
provided a sophisticated model for contracts, rules of procedure, family
law, wills and a strong monarchical constitutional system.
Roman law continued uninterrupted in the Byzantine empire
until its fall in the 15th century. It spread due to the fact that it became
adopted by most of the former territories of the Byzantine empire and
the Western European powers. It also spread because its students were
the only trained lawyers.
Consequently, Roman law was applied as secondary law when the

local laws were not adequate. Eventually, the works of glossators and
commentators led to the development of the common body of laws
that were adopted in continental Europe. Most European countries
finally promulgated these laws as their positive law and codified it. An
example is the Napoleonic code of France. Countries that practice civil
law include France, Germany, Norway, Netherlands and most of the rest
of continental Europe.
Features of the Civil Law Legal System

• The influence of scholars on the evolution of civil law is very
significant. It is usually said that while common law is judge
made, civil law is university made.
• The laws in civil law legal systems are largely codified.
Codification is the compilation of laws into a single document
according to subject matter.
• The doctrine of judicial precedent doesn’t apply in civil law.
• The judiciary in civil law is made up of career judges in contrast
to common law where judges have to be initially lawyers.
• Another feature is that in civil law the administration of
justice is inquisitorial in contrast to the adversarial nature of
common law.
Common Law Legal Systems as Opposed to Civil Law Legal
Systems
Common law systems place great weight on court decisions, which
are considered “law” with the same force of law as statutes—for nearly
a millennium, common law courts have had the authority to make
law where no legislative statute exists, and statutes mean what courts
interpret them to mean.
By contrast, in civil law jurisdictions (the legal tradition that prevails,
or is combined with common law, in Europe and most non-Islamic, non-
common law countries), courts lack authority to act if there is no statute.
Civil law judges tend to give less weight to judicial precedent, which
means that a civil law judge deciding a given case has more freedom
to interpret the text of a statute independently (compared to a common
law judge in the same circumstances), and therefore less predictably.
For example, the Napoleonic code expressly forbade French judges to
pronounce general principles of law. The role of providing overarching
principles, which in common law jurisdictions is provided in judicial

opinions, in civil law jurisdictions is filled by giving greater weight to
scholarly literature.
Law as opposed to equity

Black’s Law Dictionary 10th Ed., definition 4, differentiates
“common law” (or just “law”) from “equity”. Before 1873, England
had two complementary court systems: courts of “law” which could
only award money damages and recognized only the legal owner of
property, and courts of “equity” (courts of chancery) that could issue
injunctive relief (that is, a court order to a party to do something, give
something to someone, or stop doing something) and recognized trusts
of property. This split propagated to many of the colonies, including
the United States. The states of Delaware, Mississippi, South Carolina,
and Tennessee continue to have divided Courts of Law and Courts of
Chancery. In New Jersey, the appellate courts are unified, but the trial
courts are organized into a Chancery Division and a Law Division.
For most purposes, most jurisdictions, including the U.S. federal
system and most states, have merged the two courts. Additionally, even
before the separate courts were merged, most courts were permitted
to apply both law and equity, though under potentially different
procedural law. Nonetheless, the historical distinction between “law”
and “equity” remains important today when the case involves issues
such as the following:
• categorizing and prioritizing rights to property—for example,
the same article of property often has a “legal title” and an
“equitable title”, and these two groups of ownership rights
may be held by different people.
• in the United States, determining whether the Seventh
Amendment’s right to a jury trial applies (a determination of
a fact necessary to resolution of a “common law” claim) vs.
whether the issue will be decided by a judge (issues of what
the law is, and all issues relating to equity).
• The standard of review and degree of deference given by an
appellate tribunal to the decision of the lower tribunal under
review (issues of law are reviewed de novo, that is, “as if new”
from scratch by the appellate tribunal, while most issues of
equity are reviewed for “abuse of discretion”, that is, with
great deference to the tribunal below).
• The remedies available and rules of procedure to be applied.

Courts of equity rely on common law (in the sense of this first
connotation) principles of binding precedent.
Archaic meanings and historical uses

In addition, there are several historical (but now archaic) uses of
the term that, while no longer current, provide background context that
assists in understanding the meaning of “common law” today.
In one usage that is now archaic, but that gives insight into the
history of the common law, “common law” referred to the pre-Christian
system of law, imported by the Saxons to England, and dating to before
the Norman conquest, and before there was any consistent law to be
applied.
“Common law” as the term is used today in common law countries
contrasts with ius commune. While historically the ius commune became
a secure point of reference in continental European legal systems,
in England it was not a point of reference at all. The English Court
of Common Pleas dealt with lawsuits in which the Monarch had no
interest, i.e., between commoners.
Black’s Law Dictionary 10th Ed., definition 3 is “General law common
to a country as a whole, as opposed to special law that has only local
application.” From at least the 11th century and continuing for several
centuries after that, there were several different circuits in the royal
court system, served by itinerant judges who would travel from town to
town dispensing the King’s justice in “assizes”. The term “common law”
was used to describe the law held in common between the circuits and
the different stops in each circuit. The more widely a particular law was
recognized, the more weight it held, whereas purely local customs were
generally subordinate to law recognized in a plurality of jurisdictions.
Misconceptions and Imprecise Non-lawyer Usages

As used by non-lawyers in popular culture, the term “common
law” connotes law based on ancient and unwritten universal custom
of the people. The “ancient unwritten universal custom” view was
the foundation of the first treatises by Blackstone and Coke, and was
universal among lawyers and judges from the earliest times to the
mid-19th century. However, for 100 years, lawyers and judges have
recognized that the “ancient unwritten universal custom” view does not
accord with the facts of the origin and growth of the law, and it is not
held within the legal profession today.
Under the modern view, “common law” is not grounded in “custom”
or “ancient usage”, but rather acquires force of law instantly (without
the delay implied by the term “custom” or “ancient”) when pronounced
by a higher court, because and to the extent the proposition is stated in
judicial opinion. From the earliest times through the late 19th century,
the dominant theory was that the common law was a pre-existent law
or system of rules, a social standard of justice that existed in the habits,
customs, and thoughts of the people. Under this older view, the legal
profession considered it no part of a judge’s duty to make new or change
existing law, but only to expound and apply the old. By the early 20th
century, largely at the urging of Oliver Wendell Holmes, this view
had fallen into the minority view: Holmes pointed out that the older
view worked undesirable and unjust results, and hampered a proper
development of the law. In the century since Holmes, the dominant
understanding has been that common law “decisions are themselves law,
or rather the rules which the courts lay down in making the decisions
constitute law”. Holmes wrote in a 1917 opinion, “The common law
is not a brooding omnipresence in the sky, but the articulate voice of
some sovereign or quasi sovereign that can be identified.” Among
legal professionals (lawyers and judges), the change in understanding
occurred in the late 19th and early 20th centuries, though lay (non-legal)
dictionaries were decades behind in recognizing the change.
The reality of the modern view, and implausibility of the old
“ancient unwritten universal custom” view, can be seen in practical
operation: under the pre-1870 view, (a) the “common law” should have
been absolutely static over centuries (but it evolved), (b) jurisdictions
could not logically diverge from each other (but nonetheless did and
do today), (c) a new decision logically needed to operate retroactively
(but did not), and (d) there was no standard to decide which English
medieval customs should be “law” and which should not. All five
tensions resolve under the modern view: (a) the common law evolved
to meet the needs of the times (e.g., trial by combat passed out of the law
very early), (b) the common law in different jurisdictions may diverge,
(c) new decisions may (but need not) have retroactive operation, and (d)
court decisions are effective immediately as they are issued, not years
later, or after they become “custom”, and questions of what “custom”
might have been at some “ancient” time are simply irrelevant.
• Common law, as the term is used among lawyers in the

present day, is not grounded in “custom” or “ancient usage.”
Common law acquires force of law because it is pronounced
by a court (or similar tribunal) in an opinion.
• Common law is not frozen in time, and no longer beholden to
11th, 13th, or 17th century English law. Rather, the common
law evolves daily and immediately as courts issue precedential
decisions, and all parties in the legal system (courts, lawyers,
and all others) are responsible for up-to-date knowledge.
There is no fixed reference point (for example the 11th or 18th
centuries) for the definition of “common law”, except in a
handful of isolated contexts. Much of what was “customary”
in the 13th or 17th or 18th century has no part of the common
law today; much of the common law today has no antecedent
in those earlier centuries.
• The common law is not “unwritten”. Common law exists in
writing—as must any law that is to be applied consistently—
in the written decisions of judges.
• Common law is not the product of “universal consent”.
Rather, the common law is often anti-majoritarian.
1.3. LEGAL TRADITION

A legal tradition is not a set of rules rather it is a set of deeply rooted,
historically conditioned attitudes about the nature of law, about the role
of law in the society and the polity, about the proper organization and
operation of a legal system, and about the way law is or should be made,
applied, studied, perfected, and taught. The legal tradition relates the
legal system to the culture of which it is a partial expression.
Most nations today follow one of two major legal traditions:
common law or civil law. The common law tradition emerged in England
during the Middle Ages and was applied within British colonies across
continents. The civil law tradition developed in continental Europe at
the same time and was applied in the colonies of European imperial
powers such as Spain and Portugal. Civil law was also adopted in the
nineteenth and twentieth centuries by countries formerly possessing
distinctive legal traditions, such as Russia and Japan, that sought to
reform their legal systems in order to gain economic and political power
comparable to that of Western European nation-states.
To an American familiar with the terminology and process of our

legal system, which is based on English common law, civil law systems
can be unfamiliar and confusing. Even though England had many
profound cultural ties to the rest of Europe in the Middle Ages, its legal
tradition developed differently from that of the continent for a number
of historical reasons, and one of the most fundamental ways in which
they diverged was in the establishment of judicial decisions as the basis
of common law and legislative decisions as the basis of civil law. Before
looking at the history, let’s examine briefly what this means.
Common law is generally uncodified. This means that there is no
comprehensive compilation of legal rules and statutes. While common
law does rely on some scattered statutes, which are legislative decisions,
it is largely based on precedent, meaning the judicial decisions
that have already been made in similar cases. These precedents are
maintained over time through the records of the courts as well as
historically documented in collections of case law known as yearbooks
and reports. The precedents to be applied in the decision of each new
case are determined by the presiding judge. As a result, judges have
an enormous role in shaping American and British law. Common law
functions as an adversarial system, a contest between two opposing
parties before a judge who moderates. A jury of ordinary people without
legal training decides on the facts of the case. The judge then determines
the appropriate sentence based on the jury’s verdict.
Civil Law, in contrast, is codified. Countries with civil law systems
have comprehensive, continuously updated legal codes that specify all
matters capable of being brought before a court, the applicable procedure,
and the appropriate punishment for each offense. Such codes distinguish
between different categories of law: substantive law establishes which
acts are subject to criminal or civil prosecution, procedural law establishes
how to determine whether a particular action constitutes a criminal act,
and penal law establishes the appropriate penalty. In a civil law system,
the judge’s role is to establish the facts of the case and to apply the
provisions of the applicable code. Though the judge often brings the
formal charges, investigates the matter, and decides on the case, he or
she works within a framework established by a comprehensive, codified
set of laws. The judge’s decision is consequently less crucial in shaping
civil law than the decisions of legislators and legal scholars who draft
and interpret the codes.
1.3.1. Definition of a Legal Tradition

Legal tradition refers to a set of deeply rooted and historically
conditioned attitude of the majority of the members of a given legal
system towards the other elements of that legal system, which means the
way laws are made, modified, interpreted and the way the legal actors
and structures function. Legal tradition is the abstract element of a legal
system. The attitude directed towards a legal system can be hostile,
neutral or favorable. When the attitude of the governed is hostile, the
legal system will show instability; it will have to be changed. When the
attitude of the governed is supportive of the legal system, the system
will show continuity. So depending on the type of the attitude of the
majority members of the legal system, the legal system may show deep
and frequent changes or stability. When we say legal tradition, we are
referring to the attitude of the majority members of a given community;
we are not referring to the entrenched attitudes of the minority members.
The attitude that constitutes a legal tradition should be directed to a
legal system and should be something deeply embedded in the system.
The attitude should also be historically conditioned in the sense that it
should be there for a relatively longer period of time and that it should
have the feature of perpetuating itself.
In terms of frequency of change, legal traditions may be classed
into three: those legal systems that exist for a relatively longer period
of time with some adjustments; those legal systems that undergo basic
and frequent changes and thirdly those legal systems which experience
little or no change. The first category is known for stability and backed
probably by a majority support; the second group relates to legal
tradition with deep and revolutionary changes while the third belongs
to the domain of the stagnant early legal traditions. Can you mention
an example of a legal tradition for each category? To which class the
Ethiopian legal system falls in?
1.3.2. The Notion of Civil Law

The meaning of the words ―civil law has not been the same in all-
historical periods. In the framework of early and classical Roman law,
jus civile was the law governing the relations of Roman citizens. In the
Middle Ages and up to the era of ―reception, the term ``civil law``
referred mostly to the Justinian legislation and the accumulated doctrine
of the commentators; it was contrasted to the canon law. In modern
times, the term ``civil law`` refers to those legal systems, especially in
their methodology and terminology, shaped decisively by the Roman

law scholars from the Middle Ages to the nineteenth century. But within
the framework of a civil law system, the term ``civil law`` is ordinarily
reserved to designate the sum total of rules governing relations of
private individuals as such, with the exception of commercial acts and
relations which are subject to commercial law.
The initial working assumption in the
civil law world especially in the French legal
system was that the codes are: (a) clear with Hints
no ambiguity and vagueness; (b) complete
Civil law is a
containing answer to every fact-situation; legal system origi-
and (c) coherent with no inconsistency or nating in mainland
contradiction. Thus, the function of the Europe and adopted
judge was assumed to be merely applying in much of the
the written law to the facts. The French world.
entertained this idea of clear, complete and
coherent code because: (a) they believed in
the goal of certainty of the law; a thinking that people should, to the
extent possible, know the nature of their rights and obligations and
be able to plan their actions with some confidence about the legal
consequence; (b) they believed in the strict separation of power in
which judges are slot-machine (give them legal rules and facts, division
are automatic); (c) the believed in legislative supremacy. Over time,
those thinking about the roles of judges, the nature of codes, the ideal
of certainty and strict separation of power and as well as legislative
supremacy have been modified. Discovered in the codes were several
provisions that were incomplete, vague, ambiguous and inconsistent.
To remedy these deficiencies, judges have been, though not in theory,
making laws in practice. The executive has started issuing tones of law
through delegation. To fill gaps in the codes and adjust them to the
changing needs of the French society, legislatures found it imperative
to pass special statutes. The jurists have commented on the codes, cases
and special statues passed by the executive and the legislatures.
1.3.3. The Notion of Common Law

Common law is the totality of the law of the Anglo-American legal
family. It is related only to that part of the law created by the king‘s
courts in England. The term ``common law`` is used as opposed to
statue law, which is the enactment of the parliament in England. The
term ``common law`` is also used as opposed to the rules and practice of
equity. The most appropriate connotation of the term, however, is a set

of deeply embedded attitude held originally by the British people about
the primacy of case law.
1.3.4. The Normativity of Legal Systems and Legal

Traditions
Hart famously stated that “the heart of a legal system” is to be found
in “the combination of primary rules of obligation with the secondary
rules of recognition, change and adjudication.” Secondary rules would
be rules about rules, and they would provide a means of securing
certainty, ordered change, and efficiency in law. These propositions
have been enormously influential, while provoking great controversy.
They have been influential in providing analytical means of thinking
about the structure of state law. They have been controversial largely
because of the implication that state law can be identified through the
formal operation of secondary rules, with no regard to its content. A bad
or evil law is therefore possible, though it may be recognizably a bad or
evil law. In the Anglo-American world, defending the existence of legal
principles that provide moral justification for law, but there has been
deeply rooted criticism elsewhere of law formally defined. This debate
has been widely diffused and represents in a sense the tip of the iceberg,
the most visible and presents dimension of the idea of a legal system. A
compromise position is evident, and Hart himself in the postscript to the
second edition of his Concept of Law acknowledged that “conformity
with moral principles or substantive values” could be incorporated into
secondary rules as a criterion of legal validity (“soft positivism”). Legal
systems could therefore exist that are based on substantive content
(though this is of course contested) and the notion of a legal system can
be therefore seen as sufficiently elastic to encompass the Hart-Dworkin
debate or the debate between “hard” and “soft” positivists.
An effort will be made to engage with the rest of the iceberg— the
fundamental, underlying notions and normative deficiencies of the
idea of a legal system. The project is not, however, one of destruction
but rather of limitation or contextualization. How can one think of,
and teach, an idea of legal system that is declining in significance? The
process implies that legal systems continue to exist, in some measure, but
that they cannot be thought of as they previously were. What replaces,
if anything, the loss in explanatory power of the ideas of the state and
its legal system? This requires examining a number of features of legal

systems, as opposed to the larger idea of legal tradition.
Systems, Traditions, and “Descriptive Sociology”

Hart stated that the lawyer will regard his Concept of Law as an
“essay in analytical jurisprudence” but that it “may also be regarded as
an essay in descriptive sociology.” The theory of legal systems would
thus not be normative or evaluative but would rather be analytical and
descriptive. This distinction is fundamental to the theory, since if law is
to be identified by its formal characteristics (derived from adherence to
secondary rules), it is important to avoid not only moral or normative
definitions of legal content, but also moral or normative definitions of
a legal system. There could be slippage from one to the other. A legal
system would simply exist as an analytical or described phenomenon.
The presumption of the existence of such systems is explicitly stated by
Hart later in his book, when he states that the purpose of the book is not
to provide a definition of law, but “to advance legal theory by providing
an improved analysis of the distinctive structure of a municipal legal
system.
There are at least three problems with this position. The first has
been the object of comment and is to the effect that Hart inevitably
slips from pure description to normative argument in his presentation.
In stating that a legal system eliminates “defects” of uncertainty, stasis
and inefficiency in “primitive communities”, Hart would be necessarily
arguing for a superior type of law produced by a legal system.26 In
arguing that users of the rules of a legal system adopt an “internal point
of view” according to which the rules are guides to the conduct of social
life, Hart would be adopting a normative view both of persons and of
law, as fulfilling a function of guidance through the providing of reasons.
These claims of the actually normative character of Hart’s work are
disputed by some, who claim, in defence of Hart, that the conceptual
or descriptive must precede the normative, and that something must
be capable of existence before it can be normatively defended. It would
be possible to be descriptive or analytical. Here the second problem
with Hart’s position arises, which is that even if one accepts that Hart’s
argument is as analytical and descriptive as it is possible to be, the
assertion of an allegedly true description is itself a normative proposition.
There has been debate amongst positivists as to the nature of positive
law and a legal system. These are competing descriptions, and we have
no way of ascertaining that any one of them is truly descriptive—that is,
corresponding with a given, true nature of a legal system. “Legal systems

are not solid and sensible entities. They are thought-objects, products
of particular discourses rather than presuppositions of them.” There
are thus chosen claims of description, each one of which may exhibit,
“a certain persuasiveness as a descriptive account.” The legal system
would thus be an “essentially contested concept,” understandable only
in terms of its different historical understandings.
The final problem with Hart’s effort to avoid the normative
in describing legal systems has received less attention from legal
philosophers. It concerns the internal characteristics of a legal system,
not in terms of any moral content of its rules, but in terms of that which
a system necessarily entails in terms of coherence, consistency, and
completeness. Hart does not appear to discuss this, yet as a problem it
has received enormous attention from those responsible in some way for
the functioning of legal systems. There has been perhaps more attention
in civil law jurisdictions than in common law ones, but it has been stated
that “the deductive character of a formal system constitutes its primary
constitutive characteristic.” Others emphasize consistency and a lack of
internal contradictions. Laws would therefore be nonsystematic because
of their refusal to adhere to formal criteria of internal logic, which is
not one of Hart’s conditions. The line between non-system and system
would be always unclear since there are infinite degrees of “systematic
treatment”. Lawyers would thus exhibit a disposition “to regard
inconsistency and insufficient coherence as defects of the system.” The
idea of a legal system would therefore be inherently normative, in terms
of what a system has to be. This may perhaps not be morality, but it does
imply evaluation of the content of the system.
There is therefore vigorous debate on the first claim of Hart that he
is engaged in analysis or descriptive sociology. In the result, however,
the reasons for the existence of a legal system are not a primary concern
or product of the debate. The claim to description or analysis has shifted
attention, even though the claim is an inherently normative one. This
has important consequences for the ongoing influence of the idea of a
legal system in the world, which becomes evident in considering, or
attempting to describe, a legal tradition.
There is a tradition in the western world of being untraditional. This is
sometimes referred to as modernism and sometimes as postmodernism,
but its origins would lie well back in time, probably to the Greek
mathematicians who thought in terms of numerical discontinuity. They
accepted the existence of integers and fractions clearly distinct from

one another, but refused to contemplate real numbers, expressed in
decimals, or irrational numbers, such as the square root of 2. Real or
irrational numbers would extend infinitely and destroy the sharp edges
necessary for calculation. We owe the notion of incommensurability to
this type of thinking.
Geometric proportions that could not be expressed in terms of whole
numbers, such as those of the diameter and side of a regular pentagon,
would be incommensurable, lacking a common (crude) means of
measure. The autonomous number is the predecessor of the autonomous
individual; incommensurability is the rejection of interdependence. The
independent, modern individual is thus free of the attachments—to
others, to the environment, to the past—that would characterize other,
contextual, “traditional” societies. Yet the concept of the independent,
modern individual is not invented afresh by each one of its millions of
contemporary instantiations. There is reliance, implicit or explicit, on
the teaching that has gone before, and particularly that which teaches
the concepts of modernity and postmodernity. This teaching is today
unavoidable in the western world. Most people simply absorb it and act
upon it. It teaches that they needn’t ask where it came from.
Traditional western thinking would thus be locked in an antagonistic
relationship with the concept of tradition. It rejects it, but cannot escape
it. So there is a tradition of modernity, characterized by its ongoing denial
of its own historical roots. There are reasons moreover for this denial
by western thought of its own past. The societies of the ancien régime
were “repugnant to rationalists” and the best means of their destruction,
as traditional societies, was through destruction of the idea of tradition
itself. Other traditions, less conflicted with themselves, would be more
reconciled to their own traditional character. Yet if tradition is to be
urged as a means of supplanting the idea of a legal system in some
measure, or providing support for it, this requires consideration of the
nature of tradition, what it is.
The word “tradition” comes to us from the Latin “tradition”,
meaning transfer or transmission or conveyance. The concept has been
influenced by the word, and some have maintained that tradition is
the process of communication of knowledge, doctrine, or technique.
Others have said that tradition is an indefinite series of repetitions of
an action, though this would appear to conflate tradition with reaction
to it. In law, however, it has been said that tradition, and law itself, is
“something which has come down to us from the past.” This would
capture the idea of tradition as information and would allow us to make
some analytically useful distinctions in understanding the functioning
of tradition.
If tradition is seen as information, it must be the object of transmission
or tradition if it is to continue to function as an operative or living
tradition. Tradition would be thus distinct from the process of its own
transmission and maintenance. It would be then for us to decide what
to do in particular situations, faced with the teaching of tradition and its
availability to us, through transmission. In the absence of transmission,
or in the absence of our acting in conformity with it, it could not be said
that a tradition was a living tradition. It would be dead information,
either because it was buried or locked up or forgotten, as with tablets
covered over with sand or as with languages dead and forgotten, or
because it no longer attracted adherence. Many traditions have thus
died, though some may be in states of suspended animation, as where
their information is still available and may one day begin again to attract
adherence. This would be the process of returning to the sources, or
origins. It is vital to dispossessed aboriginal peoples, among others.
How can a living tradition be analyzed or described? There must first
be information derived from what we know as the past. Tradition itself
entails no specific requirement as to how old the information must be in
order to be recognized as traditional. This will depend on the tradition,
and some traditions have been successful in preserving information of
very great age. Information that is very recent may also be important in the
functioning of a tradition, either because it confirms or explicates older,
more general information, or because it may even be the information
that will generate, over time, a new tradition. In the latter case, only time
will allow us to distinguish between a genuine tradition and simple
movements, fads or fashions. Tradition is thus necessarily diachronic
in character. It is very different from the idea of a “momentary” legal
system, the law that would be in force at a given time. Understanding
tradition would be like looking at a film; understanding a momentary
legal system would be like looking at a single frame of a film.
How does the transmission or tradition of information occur? Most of
the information generated by the world has disappeared forever, victim
to the irresistible forces of entropy. There is a plaque in a very famous
village that reads, sarcastically, “On this site, in 1897, nothing happened.”
Of course, something did happen on that site in 1897, but it was not
captured. We cannot ourselves remember what we did last Tuesday.

Students take notes of only parts of lectures. Some of the information
lost is noise that no one will miss. Other lost information is valuable
and its loss is much regretted. Some information is in between, as with
the lives of ordinary people, which social historians must then painfully
attempt to reconstruct. So the first element of tradition is necessarily
found in the capture of information. It is capture that allows us to retain
and control information, and this may eventually allow others to access
it. We capture information through language that is stored by memory,
by codes stored through magnetic means on physical supports. Much
can be said of each of these different means of capture. They are all
subject to much refinement—whose words shall be memorized, what
are the techniques of memory, what shall be written down and by whom,
how and by what means do we ensure access to codified language?
Traditions differ in their responses to these questions, yet as traditions
they must necessarily commit to particular means of capture. Otherwise
their information is lost and they will die.
Given captured information, available to us from the past, we must
still have means of accessing and using it. This may require special
education and, in the case of magnetically stored information, special
equipment. We may need machines to read for us. Accessing information
is however distinct from its use, and there may be special qualifications
or special techniques for use, as where legal professionals, and only legal
professionals, are permitted to engage in debate as to the true meaning
of texts, before a decision maker. These are very much characteristics of
a living tradition, with the result that present decisions made, in reliance
on the information of the tradition, become themselves subject to it.
Capture then again takes place, of present adherence to the tradition.
The mass of information of the tradition is then enhanced in terms both
of its size and of its legitimacy. A living tradition thus functions by way
of a continual reflexive process, through looping or feedback.
It is evident that the information of a tradition must contain both
substantive or primary information, that which the tradition is meant to
provide, and also information concerning the survival of the tradition.
This latter information deals with the primary information to be
captured, its means of capture, and the means of accessing and using
it. It could be qualified as secondary information, though this somehow
undermines its importance. So it becomes evident that tradition, as a
concept, is as analytically complex as Hart’s structure of primary and
secondary rules and is even larger and more encompassing. Hart saw
the law of “primitive” communities as static in the absence of secondary

rules. Secondary rules, moreover, could only designate written primary
rules. Yet we now see that such different traditions necessarily have
“secondary” mechanisms, though they may be different in character
in refusing, for example, written forms of capture. Traditions that have
endured over time are thus necessarily complex in their structures,
though the structures may not be institutionalized in form.
To what extent is the preceding discussion an analytical and
descriptive statement of the notion of tradition? There are certainly
analytical and descriptive elements of it, as there are analytical and
descriptive elements of the notion of a legal system. Yet, as in Hart’s
description, there are evaluative or normative elements in the description.
The diachronic nature of tradition would allow better understanding
than the synchronic nature of momentary legal systems. A living tradition
would be better, or more useful, than a dead tradition. The concept of
tradition would be broader, more inclusive, and more conciliatory than
the concept of legal systems. Tradition conceived as information would
be more persuasive than tradition conceived as tradition or repetition.
More generally, as we will see, tradition is a highly normative concept.
So tradition can be analytically and descriptively presented, but it is,
more recognizably than the notion of a legal system, an argument. There
is no need to speak of tradition in purely descriptive terms. It contains
arguments, and can be seen as argument, extended over time. Tradition
thus provides an argument for legal systems, and teaching this allows
us to not simply describe legal systems, but to better understand their
historic and present status.
1.3.5. The Existence of a Legal System

Following a line of thought derived most immediately from
Bentham, Austin, and Kelsen, Hart looked to the social fact of obedience
on the part of the population as the essential test of existence of a
system. He stated this generally to the effect that obedience on the part
of the “bulk of the population” is “all the evidence we need ...” Yet,
refining the test to correspond to his notion of primary and secondary
rules, he went on to state that such evidence is not all that is needed
to describe the relationships to law involved in the existence of a legal
system. Adequate description also involved a statement of the relevant
relationship of the officials of the system to the secondary rules that
concern them as officials. Hence he eventually concluded that there are
Moreover, the nature of traditions means that we are not faced with
a binary choice between their existence or non-existence. A particular
tradition may fail and die, but the result is not an absence of tradition.
Another tradition will take its place. Anthony Kronman has written
that it is “remembrance and fame, the work of conservation, the linkage
of the generations” that define “a uniquely human world in which
neither gods or animals appear.” Being human means living in a world
of communicable and communicated non-genetic information, living
within a tradition or traditions. Whether a particular tradition is a living
one, moreover, is a matter of degree. There are traditions that are losing
their grip, others that are in ascendancy. So their existence is more a
matter of influence than of verifiable or categorical data. This means that
the great divergences in efficacy of the laws of the world do not have
to be somehow crammed into the categories of existing or non-existing
legal systems. There can be healthy and unhealthy legal systems, ones
that satisfy more or less the citizen’s expectation of impartial justice.
Very refined gradations are here possible, as degrees of perception of
corruption can be measured on a scale from 1 to 10. It is appropriate to
speak of the “high degree of effectiveness of oral legal traditions.”
1.4. LEGAL TRANSPLANTATION

Legal transplantation is known by other names. These are legal
borrowing, legal importation, legal reception and legal taking. Legal
transplantation refers to the transfer of legal rules, legal principles
and legal concepts from one or more than one legal system to another
legal system. A legal system borrowing laws can be called the recipient
system while a legal system lending laws can be called the donor legal
system. The lending system may be an existing legal system or a past
legal system. Countries, for example, borrowed from the Roman legal
system that ceased to exist centuries ago. The recipient legal system
should be an existing one or a system at its initial stage of development.
Legal borrowing can involve a single legal rule; it can be a massive
borrowing. For instance, Ethiopia borrowed large quantity of laws in
late 1950`s and 1960`s. At the end of 19th century, Japan received large
quantity of laws from Germany. Small-scale borrowings take place
everyday. Appreciating legal transplantation is important to conduct
legal research, as it enables you to trace the right material sources of the
laws of a given country.
1.4.1. Reasons for Legal Transplantation

Can you identify and explain the factors that may drive a country to
receive laws from another system? Do you think that in a country borrows
laws based on its free decision alone? Do you think that there are cases
where a country may be compelled to take laws from another system?
A recipient country may borrow laws since the laws are accessible in
terms of language, the laws are found out to be meritorious in terms of
organizations, the laws were transplanted to other systems and found
out to be fruitful and the recipient country decided to modernize its
legal system. A country may adopt foreign laws as a result of migration
or commercial intercourse. A country may adopt the laws of another
country because the important elites are attached to the legal system
and education of the donor country. A country may be forced to accept
the laws of other systems owing to war or conquest or colonization or
physiological pressure. Can you give concrete examples for each of
these reasons? Is it possible to say, for example, that many countries in
Africa and Asia received laws from France and England as a result of
colonization? Is it possible to say that the socialist laws were spread to
several countries all over the world as a result of ideological threat from
the ex-USSR? Can we say that Islamic law was propagated to the other
parts of the world through via methods such migration and commercial
interaction?
1.4.2. A Historical Account of Legal Transplantation

Legal history indicates that legal transplantation has been rampant.
The Greek gave important legal theories to the Romans; the Romans
borrowed some conceptions of laws from the Greek legal system. The
Romans converted the idealism of the Greek into practical legal rules.
The Romans gave principles of private law to European countries such
as France and Germany. France added to the laws it had received from
the Romans some theories and techniques. France then codified its laws
in early 19th century. France propagated its laws first to neighboring
European countries. Later, France transplanted its codes to Asia and
Africa through the instrumentality of colonialism. Some countries in
Latin America received laws from France voluntarily. England also
transported its laws to all over the world via colonialism. Eastern
European countries received laws from the civil law countries. After the
end of World War Second, however, East European countries were forced
to adopt socialist system of laws. Again after 1980`s these countries went
back to the civil law tradition owing to external pressures. The socialist
legal system was developed as an idea in 19th century and in early 20th
century; it was then translated into practice in Russia. Russia, later the
USSR, became the mastermind behind the spread of socialist laws to
Asia and Africa in some case through force and sometimes through
pressure.
The Islamic legal system, as an idea, originated in the Middle East in
the 7th AD., and then it was taken to the coastal areas of Africa, Middle
East and Asia. Now a kind of Islamic law belt is created. The spread
of the Islamic legal system has been attributed to a combination of the
following factors: migration and commerce. Do you realize from these
descriptions that legal systems develop through borrowing? Do you
appreciate that legal borrowing has implied power relations in the sense
that laws usually flow from powerful legal systems to less powerful
ones? Do you agree with the proposition that legal transplantation can
take place faster in the cases where the recipient system has gaps?
According to Dicey, there are three classes of recipients of common
law:
• Seeded nations-those where elements of the colonial legal
system were introduced into a colony which had a relatively
advanced society and developed legal system, but where the
seeding power which gained control more by negotiation and
its apparent capacity to conquer than actually using force. As
an example, in Grand Mogul of India, local leaders authorized
English occupation
• Settled nations-those in which territorial expansion occurred
in an area not possessing a strong and developed society and
in which the colonial acquisition went to the first settling
power. Examples in this domain are USA, Australia and New
Zealand.
• Conquered territories-nations in which elements of force was
used to wrest power from another authority, which might
have been either a strong indigenous authority, or a previous
colonizer as is in the case in South Africa.
1.4.3. Notes
Common law was directly linked through its territorial expansion
with each of the principal nations in which the common law developed.
Roman law origins for these nations must be traced through a two-
stage linkage, first the Roman law was directly linked to European
systems and, secondly, that some Roman law is traceable through
these European systems was linked to a second tier of civil law nations
located in many parts of the world. In many parts of African countries,
the English law and civil law affected a comparatively small percentage
of the population. Reception of a legal system depends on the fusion
of the local culture with that of the settling nation. Where a cultural
assimilation has occurred, the English law and civil law have shown
remarkable capacity for adaptation.
Views on legal transplantation: Do you support legal borrowing? Is
there any problem in borrowing laws? There are three views about legal
transplantation. The first approach is referred to as the custom theory. F.
von Savigny, a German thinker of 19th century, elaborated this approach.
The approach states that law and society have unique relationships. Law
and society have inherent connections. There is a unique relationship
between law and society means that laws are found in the common
consciousness of the people. This common consciousness is manifested
via the behaviors of individual members of that community. Laws are
related to the identity of a society for which they are created. Further,
further this theory assumes that every community is legally self-
sufficient; whenever a society faces a legal problem, it can create legal
rules of its own and from its own internal sources alone. To this theory,
if one attempts to take the laws of X community to Y community by way
of legal borrowing, those transferred laws will inevitably fail. Further
the proponents of the custom theory hold that legal transplantation will
never solve the problems of a recipient legal system; if you know in
advance that borrowed laws will fail, there is no reason to try it.
An opposing theory, developed by Alan Watson holds that there is
no unique connection between law and society. The theory also holds
that no community has ever been legally self-sufficient in the history of
mankind. The theory is named as legal engineering. This theory views
laws as intangible instruments to achieve certain goals. As laws are
tools, they can be taken to any society and may be used with success.
Justifications are given for this position. The first reason is that the fact
that legal transplantation has been very common in the history of legal
systems, which shows that people have found it rational and useful.
In the second place, if there are laws used by X community and if Y
community needs those laws, why should the latter be asked to reinvent
those legal concepts and legal rules? It is rational for Y community
to receive the laws of X community, which are tested in practice. The
custom theory wrongly assumes that countries always take the laws of
other nations on the basis of their own free will. History gives us several
examples where countries have borrowed laws as a result of external
pressures.
The third theory attempts to strike a middle ground. In some areas
of law, for example, in the area of commercial law, public law and
technology law, there are gaps in laws or laws do not exist in developing
countries. In such cases, developing countries do not have a choice; they
have to borrow laws. In other areas of laws such as family law, inheritance
laws and land laws, developing countries have longstanding laws. In the
latter cases, it is difficult to transplant laws and even if transplantation
takes place, the laws so transplanted will not be welcomed. This hybrid
approach is articulated by Kahn-Freund. This position is also called the
degree of transferability approach. This moderate approach to legal
transplantation states that the contexts of the recipient country should
be studied well before the borrowing of laws is made. Which theory do
you support: the custom theory (also known as the historical theory),
the social engineering theory (also called the instrumentalist theory) or
the hybrid theory? Why?
1.4.4. More on Legal Transplantation

The debate around the theory of legal transplants has almost unique
beginning. In 1974 Alan Watson and Otto Kahn-Freund presented
competing theories on the viability of legal transplants. The divergence
of their views can be traced to the adoption of contrary propositions
about the relationship between a state’s law and its society
Watson’s theory begins with the proposition that there is no inherent
relationship between law and the society in which it operates. He
believes that law is largely autonomous, with a life of its own. Watson
states that law develops by transplanting, not because some such rule
was the inevitable consequence of the social structure and would have
emerged even without a model to copy, but because the foreign rule was
known to those with control over lawmaking, and they observed the
apparent merits that could be derived from it.
Under Watson’s theory, a legal rule is transplanted simply because
it is a good idea. While Watson does not explicitly present a method to
predict the viability of a proposed legal transplant, his writings provide
guidance for such a method. He has further identified several factors
that he believes must be considered to determine if the conditions are

ripe for legal change by transplantation.
Kahn-Freund’s disagreements with Watson begin with Watson’s
proposition that there is no inherent relationship between a state’s law
and its society. He claims that laws must not be separated from their
purpose or from the circumstances in which they are made. Kahn-
Freund argues “we cannot take for granted that rules or institutions are
transplantable`` and believes that “there are degrees of transferability``.
Ewald summarizes Kahn-Freund’s theory: “legal institutions may
be more-or-less embedded in a nation’s life, and therefore more-or-
less readily transplantable from one legal system to another; but
nevertheless at one end of the spectrum law is so deeply embedded that
transplantation is in effect impossible.
Kahn-Freund identified a two-step process to determine the viability
of a proposed transplant. The first step is to determine the relationship
between the legal rule to be transplanted and the socio-political structure
of the donor state. The second step involves comparing the socio-political
environment of the donor and receiving state.
There is agreement, however, that the phrase “legal transplants”
refers to the movement of legal norms or specific laws from one state to
another during the process of law-making or legal reform. However, as
a consequence of these conflicting propositions, their theories clash not
only over how to evaluate the viability of a proposed legal transplant,
but also over the general conclusions that can be reached about the
usefulness of legal transplants as a tool of comparative scholars. Other
scholars debate nearly on every aspect of the legal transplant theory.
The study of legal transplants has been revived since the collapse of
totalitarian rule. It is not, however, a new topic. The issue of reception
of foreign law has a considerable history and a remarkable topicality.
As states around the globe implement dramatic political and economic
changes in response to external and internal developments, their legal
systems must be radically altered. In making these changes, legislators
determine whether the borrowing of foreign law is feasible and if the
international harmonization of a particular set of laws is viable. The
argument is strong that there is no need for legislators to struggle to
reinvent the wheel when others have dealt with the same issues. This
argument is further supported by the fact that states are under pressure
in the increasing interdependent world to create uniformity in law.
Massive successful borrowing is common place in law. Borrowing is

usually the major factor in legal change. Legal borrowing is of enormous
importance in legal development. The borrowed rule would not operate
in exactly the way it did in its other home. Legal transplantations are
inevitable. Since the time of late Roman Empire, legal transplantations
have been a major factor in legal change in the western world. England
is no exception. Nor is the United States. Nor is Québec, even with its
differences from the other provinces. The real issue is whether there
should be a deliberate concerted effort, spear-headed perhaps by
academics, to create a common law.
Beginning from early 1990`s, Eastern Europe began the
unprecedented effort of lawmaking on a grand scale. Almost overnight
and at the request of their people and/or international organizations,
former communist countries had to disassemble their political,
economic, and legal institutions, which were based on centrally planned
economies, to erect market-based democracies. Large sections of their
old legal systems were now obsolete. The legislatures, however, were in
most cases not free to from law and policy, as an “author is free to write
a novel. ``The legal establishment of the communist era held influential
posts and had contacts in the East and the West. They were ex officio
called to lead reform efforts. In addition to them, foreign technical
assistance arrived with ideas for “legal surgery or reception of foreign
law``. A great number of foreign concepts (e.g., negotiable instruments or
credit security devices) were introduced as if they were legal transplants
to replace malfunctioning organs.
Comparative law was employed to decide either compatibility
of foreign legal concepts or the merits of foreign legal systems and to
provide an anthology of foreign legal ideas. Modern comparative legal
methodology deals with legal transplants and reception of foreign law.
Interface: Imported Laws and Preexisting Laws

Two main themes are discernable in the legal transplantation
discourse. Convergence theorists contend that nation-states are enmeshed
in an inevitable and accelerating shift towards internationalization
and globalization. Ever increasing telecommunications, urbanization,
international investment and trade are credited with collapsing regional
differences, which in the past inhibited legal transplantation. Ignoring
the path-dependent trajectory of legal development, multilateral funding
agencies like the International Monetary Fund, World Bank and Asian
Development Bank routinely make loan agreements to developing Asian
states conditional on enacting Western-style commercial law. Similarly,

multilateral organizations like the World Trade Organization (WTO) and
APEC pursue legal harmonization strategies designed to transmogrify
domestic capitalist laws (especially those of the United States) into
global legal templates. Underlying this vision of global equivalence and
convergence is the unsubstantiated assumption that legal transplants no
longer convey national culture from one society to another, but rather,
function as a series of technical adjustments between legal systems.
The other main theme originates from Montesquieu‘s skepticism
that laws cannot traverse cultural boundaries. He proposed that laws
express the spirit of nations and are consequently deeply embedded in,
and inseparable from their geographic, customary and political context.
The transfer of laws across cultural boundaries constitutes a grand
hazard‘, because laws cannot change manners and customs, which must
evolve.
Taken together these explanations fail to account for East Asia‘s
uneven legal reform. There is a need for theoretical alternatives to the
unproductive convergence and cultural-essentialist dichotomy. At issue
is whether laws arising out of, and serving the sociopolitical needs of one
society, can induce similar effects in other societies…Previous research
suggests that Vietnam’s contemporary legal system is constructed from
legal transplants historically derived from China, France, the former
Soviet Block, and more recently East Asia and Western countries.
Together these sources form a complex legal architecture based on
different systems of knowledge, the new overlaying and interweaving
the old. The official ‘legal system has always reflected the laws of
conquerors, colonists and patron-states, which were superimposed
over the pre-existing habits and practices forming the unofficial ‘legal
system. In order to unravel the myriad influences on legal development,
a theoretical means of analyzing interaction between legal transplants
and host country legal systems is required.
Proponents of legal transplantation contend that laws reflect
the legal traditions of governing elites, rather than extrinsic social,
political and economic factors. Globalizing forces are also credited with
accelerating legal reification, by creating one international legal dialogue
comprised of a collection of regional sub-variations. In its extreme form,
some multilateral donors postulate a future where a single transnational
jurisdiction emerges as national legal systems wither away. Others
contend that since laws are cultural artifacts that mirror the felt needs
‘of society, they are unlikely to induce the same behavior in different
societies. Put differently, there is much law ‘beyond legal rules and the
transplantation of statutory and doctrinal rules does not necessarily
transfer the ‘whole law‘. Rules, it is argued, lie on the surface of legal
systems and do not accurately represent deeper underlying sociopolitical
dynamics.
Legal history shows that certain legal transplants take root in foreign
legal terrain, though successes are largely limited to borrowing between
Western countries. Explaining this phenomenon, Otto Kahn-Freund
offered the valuable insight that there are degrees of transferability‘.
Even so, laws designed to allocate power, rule-making, decision making,
above all, policymaking power ‘remain deeply embedded in social
institutions and are unlikely to easily transplant. His complex theories
are scattered in fragments throughout his writings, however, it is possible
to discern three main hypotheses. One, all laws have to some extent de-
coupled from their sociopolitical moorings, making legal transplants
across sociopolitical boundaries a theoretical possibility. Two, since
laws de-couple to varying degrees, some are more likely to survive the
journey than others. Three, sociopolitical institutional factors determine
the degree of coupling between law and society, they are: the ideological
role of law, the distribution of state power, and pressure from non-state
interest groups.
Three working postulates have been synthesized from Kahn-
Freund and later legal-sociological writings to identify the likely sites
of interaction between imported laws and host country sociopolitical
structures:
• Legal Ideology: Transplanted laws should accord with the
dominant ideology in host countries. The success of legal
transplantation is strongly influenced by the congruence
between the ideological content of transplanted laws and
host country political-legal ideologies. Here ideology is used
in the Gramscian sense to identify categories of meaning
to understand social reality. Ideology has the capacity to
persuade people that the world described in its images and
categories is the only attainable world in which a sane person
would want to live.
• Structural Variance in Power Distribution: Transplanted
laws should comport with host country legal frameworks and
political legal cultures. The effectiveness of transplanted law
is also profoundly influenced by its compatibility with host

country power structures and legal cultures (epistemologies).
Political-legal culture is the historically conditioned, deeply
rooted attitudes that influence the way bureaucrats and
judges use law to find reality. It encompasses epistemological
assumptions regarding rationality, efficiency and merit, which
in turn shape understandings of borrowed law. Pierre Legrand
suggests the aim must be to try to define why different legal
cultures invest similar legal rules with different meanings‘.
• Special Interest Groups: Transplanted laws should attract
support from host country special interest groups and
comport with local production regimes. Certain laws require
specific configurations of state and non-state interest groups,
such as market support organizations (for example banks,
lawyers, accountants, unions, political parties, markets and
family-based commercial structures) to function effectively.
1.4.5. Legal Penetration versus Legal Extension

Penetration is defined as “the insertion of the male part into the
female parts to however slight an extent; and by which insertion the
offense is complete without proof of emission.” Extension is a grant
to increase the time originally specified in a written contract, a verbal
agreement, or an obligation.
Can you define legal penetration? What is legal extension? Do you
think that there is a gap between legal penetration and legal extension?
If there is a gap between the two, in which legal system, in developed or
undeveloped legal systems does it exist? Can you give reasons for the
gap?
Legal penetration
Those responsible for the importation of laws aspire that the
transplanted laws would affect human conducts possibly hundred
percent. The assumption is that the actors at the time especially of
massive importation of laws desire that communities would adjust their
behaviors to the imported laws. The actors who sponsored wholesome
importation of laws plan that the imported laws would be implemented
in all parts of the territory of the recipient country. For example, Ethiopia
borrowed large scale laws in 1950`s and 1960`s; at that time, key
personalities were responsible for such project expected that such laws
would be accepted by the people; the people would shift their allegiance
towards the new western oriented laws.
Legal extension
Legal extension refers to the extent to which people or the state
actors are actually following the imported laws. If legal penetration is
the aspiration, legal extension is the reality. The question is whether
people have actually adjusted their behaviors to the prescriptions of
the imported laws or whether people are still settling their social and
economic conflicts pursuant to customary or religious laws.
In the context of developing countries that transplanted laws from
the west such as Ethiopia, there is a gap between legal extension and
legal penetration. The gap is not a small one; it is quite substantial. You
can cite examples. In Ethiopia, the imported family law states that the
spouses are equal, at the time of the creation of marriage, in the course
of marriage and upon the dissolution of marriage. The husband and
the wife should conclude marriage on their free consent. The husband
and the wife should share household burdens equally. The husband and
wife should divide the common property equally when the marriage
dissolves. But the customary laws do not conform to these prescriptions
of imported laws. You can take the case of land. Land since 1974, in
Ethiopia, has been taken as a collective property. But under customary
law some tribes still believe that land belongs to them. You can go
on citing examples. In developed countries, people have sufficiently
adjusted their conducts to the official laws.
Reasons for the gap

You can simply speculate for want of sufficient empirical data.
The first possible reason is that the imported laws have not yet been
sufficiently communicated to the people. Secondly, the laws are
published in the English language and Amharic in a country where
millions of people do not understand either of these languages. The other
possible reason is that there is a huge percentage of illiterate population.
The imported laws assume a literate society. Thirdly, the state lacks the
necessary resources to implement some of the provisions of the imported
laws. The fourth reason is that the laws were defectively transplanted,
which means the country‘s context was not properly studied and the
customary and religious laws were not given the place they deserved.
As a result, the imported laws lacked the necessary legitimacy from the
people. The other factor is that the pre-existing laws in Ethiopia are so
deeply rooted in the fabric of the society that they could not easily and
quickly be replaced. People are deeply attached to the customary laws.
People have inherited dispute settlement mechanisms that were used by
their ancestors. Simply stated the force of tradition is the reason behind
the tacit resistance put up against imported laws. Finally, it is argued
that the transplanted laws could not succeed since the assumption of
the customary laws is different from the assumption of the western
laws. The customary laws focus on the group; paramount importance
is attached to the survival of the collectivity. On the other hand, it is
stated that western laws are designed for and around the interests of an
individual.
1.4.6. Penetration Testing by Letter of the Law

Penetration testing is widely referred to as ethical hacking, and not
by chance. Although the procedure happens on the mutual consent of
the customer and the penetration testing provider, a range of US state
laws still consider it hacking. They all have a common ground: whoever
makes illegal unauthorized use of computer systems commits a crime.
But the very idea of pentesting is an attempt to get the unauthorized
access to the customer’s system. So, the question is how to make it legal
in the eye of the law. To achieve this, both a customer and a provider
should pay special attention to legal issues in penetration testing.
Territory-bound legislation
Different states have different security regulations. Imagine that the
customer is a Texan company that wants to test the network of their
Kansas branch, and the pentester will work from their own office in
Colorado. The question is, which legislation should be applied to the
pentester’s actions?
The customer and the penetration testing provider should both
remember to clear this issue out before signing the contract. Practice
shows that there is no universal rule here. The parties can agree on any
of the legislations in question.
The “Get out of jail free” statement

The “Get out of jail free” statement is a document that the customer
should give to the pentester to prove that penetration testing is permitted,
and that the customer is authorized to give this permission. There is no
unified get-out-of-jail-free form to fill in, but usually it begins with the
explanation of reasons for testing followed by the pentester’s and the

customer’s names and signatures.
Sometimes, additional permissions or restrictions are required. A
vivid example is penetration testing in a cloud environment. In this case,
the customer’s authorization is not enough. The cloud service provider
should permit penetration testing as well. They will act as the main
controlling body ensuring that the test covers only the area of network
that belongs to the customer.
Scope of Work in Cloud Penetration Testing

Cloud customers who decided to go with penetration testing have
to be especially accurate about the cloud environment area to be tested.
The scope of penetration testing will differ depending on the deployment
model (Infrastructure as a Service, Platform as a Service or Software as a
Service). IaaS, for example, will allow much deeper penetration testing
than SaaS.
Notification of the third parties

Following on the topic of third parties in penetration testing,
let’s consider the situation: after a testing procedure the pentester has
discovered some vulnerabilities that may affect a third party because
the networks of the third party and the customer are interconnected.
Should the pentester warn this third party or remain silent? This is one
of the ethical issues in penetration testing, and it has no straightforward
way out. Any further spread of information concerning a particular
penetration testing project should be endorsed by the customer.
Hacking should be ethical

Legal issues is something that penetration testing providers and
customers deal with in every project. If disregarded, they may render
penetration testing ineffective or damage the customer’s and the
pentesting provider’s reputations. The list of legal issues described
above includes the cases which are easily solvable if addressed in time.
Keep them in mind to conduct penetration testing by letter of the law.
EXERCISE
Answer the following questions
1. Do you think that the uses of history discussed above
can be extended to the uses of legal history? Which of
the uses of history explained in the above text cannot be
extended to the case of legal history?
2. What are the three ``likely sites of interaction between
imported laws and host country sociopolitical
structures?`` according John Gillespie? Which one of
these sites do you think would be most resistant to a
successful legal borrowing? Why?
3. How to approaches to legal history?
4. Focus on reasons for studying legal history.
5. What is legal system?
6. Discuss the classification of Laws.
7. Focus on reasons for legal transplantation.
8. Explain the legal penetration versus legal extension
MULTIPLE CHOICE QUESTIONS

Tick the correct answer:
1. Which of the following statements best describes the function of
a legal system?
a. Protection of individual rights and liberties
b. Maintenance of public order
c. Conferral of obligations
d. All of the options given are correct
2. Which of the following statements best describes a “legal
personality”?
a. Natural persons only
b. Artificial persons only
c. Both natural and artificial persons
d. None of the options given are correct
3. What is the difference between private law and public law?

a. Private law refers to the relationship between individual
citizens. Public law refers to the relationship between
individual citizens and the state.
b. Public law refers to the relationship between individual
citizens. Private law refers to the relationship between
individual citizens and the state.
c. Private law relates to crimes committed inside the home.
Public law relates to crimes committed in public places.
d. Private law relates to court hearings conducted in private.
Public law relates to court hearings conducted in public.
4. What is the difference between an adversarial and inquisitorial
approach to the legal system?
a. An adversarial system is based on a contest between the
parties with the judge regulating the conduct of the parties. An
inquisitorial approach concerns an investigation undertaken
by the court with the parties ensuring the correct procedure is
followed.
b. An inquisitorial system is based on a contest between the
parties with the judge regulating the conduct of the parties. An
adversarial approach concerns an investigation undertaken
by the court with the parties ensuring the correct procedure is
followed.
c. An adversarial approach is used in criminal cases whereas an
inquisitorial approach is used in civil cases.
d. An inquisitorial approach is used in criminal cases whereas
an adversarial approach is used in civil cases.
5. Which of the following is the correct statement of law?
a. The law of the United Kingdom
b. The law of England and Wales
c. The law of England, Wales and Northern Ireland
d. The law of England and Scotland
ANSWERS
1. (d) 2. (c) 3. (a) 4. (a) 5. (b)
REFERENCES
1. Barrington, Candace; Sobecki, Sebastian (2019). The Cambridge
Companion to Medieval English Law and Literature. Cambridge:
Cambridge University Press.
2. Friedman, Lawrence Meir (2005). A History of American Law (3rd
ed.). New York: Simon and Schuster.
3. See generally Stephen P. Buhofer, Structuring the Law: The
Common Law and the Roman Institutional System, Swiss Review
of International and European Law (SZIER/RSDIE) 5/2007.
4. Tubbs, J. W. The Common Law Mind: Medieval and Early Modern
Conceptions. Baltimore, 2000.
5. Cuniberti, G., Conflict of Laws: a Comparative Approach: Text and
Cases, Cheltenham, Edward Elgar Publishing, 2017.
6. Dicey, A.V. and J.H.C. Morris (et al.) (eds), Dicey, Morris and
Collins on the Conflict of Laws, Fifteenth Edition, 2 Volumes,
London, Sweet and Maxwell Thomson Reuters, 2012. (with: Fifth
cumulative supplement to the Fifteenth Edition, 2019.)
7. Dolinger, J. y C. Tiburcio, Direito internacional privado, 13a edição
revista, atualizada e ampliada, Rio de Janeiro, Forense, 2017.
8. Fernández Rozas, J.C. y S. Sánchez Lorenzo, Derecho internacional
privado, 10a edición, Cizur Menor, Civitas, 2018.
9. Hay, P., P.J. Borchers and R.D. Freer, Conflict of Laws: Private
International Law Cases and Materials, Sixth Edition, St. Paul,
Foundation Press, 2017.
Ancient Legal Systems 71
CHAPTER 2
ANCIENT LEGAL SYSTEMS
OBJECTIVES
• Understand the babylonian legal system
• Explain the greek legal system
• Understand the roman legal system
• Discuss the meaning of roman law
• Define the transformation of the digest and canon law
• Identify glossators and commentators
• Discuss the revival of roman law
• Explain the attributes of law in the early legal systems
INTRODUCTION
The legal systems in place throughout the world have origins that
date back to ancient societies. Civil law has its foundation in ancient
Roman law, and this type of legal system is based on complying with
enacted laws. Common law originated with England’s monarchy, and
this type of legal system is based on precedent. This means that previous
cases and judicial opinions determine how new cases are resolved.
This chapter dwells upon ancient legal systems such as the

Babylonian legal system, the Greek legal system and the Roman legal
system.
2.1 THE BABYLONIAN LEGAL SYSTEM

A short account of the various aspects of the Babylonian legal system
is provided here.
2.1.1 The Three Stages

The Babylonian legal system is also called the Mesopotamian legal
system. This legal system flourished Before Christ (in the BC). The
system was located along the valley of the great rivers, namely, Euphrates
and Tigris. As historical documents indicate, the Mesopotamian legal
system was located in the region south of the present-day Iraq. Legal
historians consider this legal system as the first great legal system in
human history.
The Mesopotamian legal system passed through three stages. In
the first phase, there were different kingdoms. These kingdoms were
fighting one another. There was great instability in the area. A stable
political and legal system could not be realized. The legal system was
characterized by diversity, brevity and fragmentation.
The second stage marked the coming into power of a powerful
emperor Hammurabi. Emperor Hammurabi defeated his contenders
in the area in successive battles, which enabled him to monopolize
political power. He imposed his rule on his power contenders. Emperor
Hammurabi felt that he had to rule on the basis of a code of laws. He
wrote, according to legal historians, the first real law code in the history
of mankind. His code was named the Code of Hammurabi. The Code
came into force in the year 1750 BC.
The Code had several features. The first and basic principle behind
the Code of Hammurabi was an eye-for-an eye principle of punishment.
An eye for an eye principle means a literal punishment. Mitigating or
softening punishment was not known in the Code of Hammurabi. The
Code imposed harsh or disproportionate penalties for offenses. For
examples: when a person defamed another person, he was supposed
to lose his tongue; when a person kissed a married woman, he was
to lose his lips; when a person stole property, his hands were to be
chopped off. When a builder built a defective house, he was to lose

his children. The basic reason for an eye-for-eye principle was that
when a person committed an offense, the Mesopotamians thought that
that act disturbed the natural balance and the only proper method of
rectifying the wrong, according to them, was by imposing a literal and
corresponding punishment.
The second feature of the Code was that it was not systematically
written. The Code did not make any distinctions between public law and
private law, and procedural law and substantive law; these distinctions
were not known then. Thirdly, the Code was the expression of the
Mesopotamians that the rule of law, in its crude form, was important, as
the law was written and disclosed in advance. Fourth, the Code lasted
for a longer period of time; it was one of the codes in the history of legal
systems that showed an amazing degree of stability. The third stage of
the Mesopotamian legal system was the phase of decline; much has not
been written about this fading phase of the kingdom of Mesopotamia.
2.1.2 The Basis of Legitimacy-Hammurabi`s Code

The Code of Hammurabi refers to a set of rules or laws enacted
by the Babylonian King Hammurabi (reign 1792-1750 B.C.). The code
governed the people living in his fast-growing empire. By the time of
Hammurabi’s death, his empire included much of modern-day Iraq,
extending up from the Persian Gulf along the Tigris and Euphrates
rivers.
There are as many as 300 laws that discuss a wide range of subjects,
including homicide, assault, divorce, debt, adoption, tradesman’s fees,
agricultural practices, and even disputes regarding the brewing of beer.
The code is best known from a stele made of black diorite, more
than seven feet (2.25 meters) tall, that is now in the Louvre Museum in
Paris. The stele was found at the site of Susa, in modern-day Iran, by
excavators who were led by Jacques de Morgan at the beginning of the
20th century. Scholars believe that it was brought to Susa in the 12th
century B.C. by an Elamite ruler who subsequently erased a portion of it
in preparation for creating an inscription of his own.
Originally, Hammurabi would have displayed the stele at the site
of Sippar, in modern-day Iraq, likely in a prominent temple. In ancient
times, Sippar was the home of the sun god Shamash, and the top of the
stele shows an image of Hammurabi before this god, with rays coming
from Shamash’s shoulders. Scholars widely believe that other, now lost,
steles would have existed in other cities in Babylon that were controlled
by Hammurabi.
After Hammurabi’s death, his system of laws became something of
a classic in the ancient world, and scholars have found examples of them
written on tablets, which were copied as late as the 5th century B.C.,
more than a millennium after Hammurabi’s death.
The term “Code” of Hammurabi is a modern one, so named after
the 19th-century “Code Napoleon.” Scholars today debate the meaning
behind the stele that is now in the Louvre and whether the rules
Hammurabi enacted truly represent a full law code.
Regardless of the answers to these questions, Hammurabi himself
states in the prologue to his laws that his right to make them was one
given by the gods themselves.
“Anu and Enlil ordained Hammurabi, a devout prince who fears
the gods, to demonstrate justice within the land, to destroy evil and
wickedness, to stop the mighty exploiting the weak, to rise like Shamash
over the mass of humanity, illuminating the land …”.
2.1.3 More on the Laws of Mesopotamia

The Ancient Sumerian Law Collections: Ur-Namma and Lipit-Ishtar-
The earliest recorded law collections are from ancient Mesopotamia
-- the Laws of Ur-Namma (ca. 2100 b.c.) and the Laws of Lipit-Ishtar
(ca. 1930 b.c.). Both of the surviving texts are in Sumerian. The Laws of
UrNamma (often called Ur-Nammu) come from the city of Ur in southern
Mesopotamia. They are attributed to King Ur-Namma (r. 2112-2095) or
his son, King Shulgi (r. 2094-2047). The Laws of Ur-Namma provide that
if a man deflowers the virgin wife of a young man, the husband kills the
wrongdoer. This is not self-help, but rather the punishment that might
be ordered by a court after a trial. If a man deflowers a virgin slave
woman, the penalty is only five shekels.
The Laws of Lipit-Ishtar (ca. 1930 b.c.) are attributed to King Lipit-
Ishtar (r. 1934-1924) of the First Dynasty of the city of Isin in southern
Mesopotamia. Sections d and f provide that if a man strikes a man’s
daughter so as to cause a miscarriage, the penalty is thirty shekels, while
if he so strikes a man’s slave woman, the penalty is only five shekels.
The Laws of Eshnunna-The Old Babylonian Laws of Eshnunna (ca.

1770 b.c.) come from the city of the same name in Mesopotamia. Often
unattributed, these rules may have been promulgated by a ruler named
Dadusha. Written in Akkadian, they provide for different penalties
for the owners of dogs or oxen who have been previously warned (an
ancient version of the modern one-bite rule), depending upon the status
of the victim. When a dog or an ox kills a free man, the penalty is forty
shekels, while the penalty for killing a slave is only fifteen shekels. Thus,
in Eshnunna slaves are given a higher explicit value than in Lipit-Ishtar.
The Laws of Hammurabi-The Laws of Hammurabi make up the most
famous ancient code outside of the Bible. The collection was compiled
near the end of Hammurabi’s reign (r. 1792-1750 b.c.). Hammurabi, the
sixth king in the First Dynasty of Babylon, expanded the empire and
organized its complex government. The Laws were copied many times
over the succeeding centuries.
The social structure reflected in the Laws of Hammurabi is subject
to much debate. The three main classes are the awilum, the muskenum,
and the wardum (slaves). Often awilum is used as the unmarked,
indefinite subject to refer to simply a man or person. At other times, it is
contrasted with the muskenum, reflecting a class distinction in favor of
the awilum. Although one might be tempted to assign the full free value
to the muskenum, thus making the awilum a form of nobility, awilum
in the Laws of Hammurabi and elsewhere is “usually a term referring
to ‘man,’ ‘person,’ ‘someone,’ ‘anyone,’ etc.” Thus, here the class awilum
is assigned the value of a free man with full rights, and the lower free
class (muskenum) and the slave class take their values by contrast with
the awilum.
The Code of Gortyn-The great Law Code of Gortyn is the most
extensive penal code surviving from ancient Grecian civilization, though
it is actually from one of the major cities of Crete. It probably dates from
480-450 b.c., but is in part considerably older. The social structure of
Gortyn was complex and partly obscure. At the top were the fully free
men who associated in clans and took their meals in eating clubs -- was
Gortyn the Princeton of the eastern Mediterranean? Clubless or clanless
men (apetairoi) were apparently free but without full rights. Serfs and
slaves were at the bottom of the social structure.
The Twelve Tables-The first Roman code is the Twelve Tables,
traditionally dated at 451-450 b.c. The origins of the law code have
been widely debated, with some attributing it to a political move by the
plebeians and Raymond Westbrook claiming Mesopotamian origins for

the provisions. It is more egalitarian than most ancient law collections,
but one law provides that, if anyone knocks out the tooth of a freeman,
the punishment is 300 asses, while the punishment for inflicting the
same injury on a slave is half as much.
The Laws of Manu-The Laws of Manu are usually dated about 200
years on either side of the beginning of the Common Era. The Hindu
caste system that has continued into modern times is set out in a
rudimentary form in the Laws of Manu. Although the laws are mostly
religious, there are many sections on wrongs of various kinds. In the
provisions on sex with women of different classes, there are different
punishments depending on the social class of the victim. But the pattern
revealed shows that it is not the class of the victim that matters. Rather,
the Laws of Manu are concerned with the pollution of the wrongdoer.
Sex with the lower classes is punished more severely than sex with the
upper classes.
The Burgundian Laws-The Burgundians, one of the many Germanic
tribes that conquered parts of the former Roman Empire, settled in
southeast Gaul. King Gundobad promulgated the Lex Gundobada in
Latin about a.d. 483. Like many of the Germanic codes, the laws were
written in Latin. Although a subject of long dispute, most commentators
believe that the Germanic codes are made up of a large dose of traditional
Germanic customary law, mixed with Roman-influenced law. The closer
the proximity to Rome, the greater the supposed influence of Roman law.
The Burgundian Laws are based on the traditional Germanic wergeld.
The wergeld is often not clearly laid out, rather it can be inferred from
other provisions that base their penalties on the wergeld. As in other law
collections, coding was a problem. Sometimes the Burgundians lumped
the free classes together; at other times, they split them into the lower,
middle, and upper free classes.
Laws of the Franks-In Gaul, the Germanic King Clovis consolidated
the Salian and the Ripuarian Franks into a single kingdom. He then
issued a code of laws for the combined kingdom in about a.d. 507-511,
usually called the Pactus Legis Salicae (Pact of Salic Law). This Pact was
originally set out in Latin in sixty-five titles.
2.1.4 Some Aspects of the Code of Hammurabi

The material for the study of Babylonian law is singularly extensive.
The so-called “contracts” exist in the thousands, including a great
variety of deeds, conveyances, bonds, receipts, accounts, and most
important of all, the actual legal decisions given by the judges in the law
courts. Historical inscriptions, royal charters and rescripts, dispatches,
private letters and the general literature afford welcome supplementary
information. Even grammatical and lexicographical works contain
many extracts or short sentences bearing on law and custom. The so
-called “Sumerian Family Laws” are thus preserved.
The discovery of the now-celebrated Code of Hammurabi
(hereinafter simply termed “the Code”) has made a more systematic
study possible than could have resulted from the classification and
interpretation of the other material. Some fragments of a later code exist
and have been published; but there still remain many points whereof we
have no evidence.
This material dates from the earliest times up to the commencement
of the common era. Evidence on a particular point may be very full at
one period, and almost entirely lacking for another. The Code forms the
backbone of the skeleton sketch that is here reconstructed. The fragments
of it that have been recovered from Assur-bani-pal’s library at Nineveh
and later Babylonian copies show that it was studied, entitled Ninu ilu
sirum from its opening words, and recopied for fifteen hundred years or
more. The greater part of it remained in force, even through the Persian,
Greek and Parthian conquests, that affected private life in Babylonia very
little; and it survived to influence Syro-Roman and later Islamic law in
Mesopotamia. The laws and customs that preceded the Code, we shall
call “early”; that of the Neo-Babylonian empire (as well as the Persian,
Greek, etc.) “late.” The law of Assyria was derived from Babylonia, but
conserved early features long after they had disappeared elsewhere.
Tribal influences-When the Semitic tribes settled in the cities of
Mesopotamia, their tribal customs passed over into city law. The early
history of the country is the story of a struggle for supremacy between
the cities. A metropolis demanded tribute and military support from its
subject cities, but left their local cults and customs unaffected. The city
rights and usages were respected by kings and conquerors alike.
As late as the accession of Assur-bani-pal and Shamash-shum-
ukin, we find the Babylonians appealing to their city laws that groups
of aliens to the number of twenty at a time were free to enter the city;
that foreign women, once married to Babylonian husbands, could not
be enslaved; and that not even a dog that entered the city could be put
to death untried. The population of Babylonia was of many races from
early times, and intercommunication between the cities was incessant.
Every city had a large number of resident aliens.
Almost all trace of tribal custom had already disappeared from
the law of the Code. It is state-law; self-help, blood-feud, marriage by
capture, are all absent; though the Code of family solidarity, district
responsibility, ordeal, the lex murabi, talionis, are primitive features
that remain. The king is a benevolent autocrat, easily accessible to all his
subjects, both able and willing to protect the
weak against the highest-placed oppressor.
The royal power, however, can only pardon
when private resentment is appeased.
Important
Judges are strictly supervised, and appeal This free-
is allowed. The whole land is covered with dom of intercourse
feudal holdings, masters of the levy, police, must have tended to
etc. There is a regular postal system. The assimilate custom.
pax Babylonica is so assured that private It was, however,
individuals do not hesitate to ride in their reserved for the ge-
carriage from Babylon to the coast of the nius of Hammurabi
to make Babylon his
Mediterranean. The position of women is
metropolis and weld
free and dignified. together his vast
The Code did not merely embody empire by a uniform
system of law.
contemporary custom or conserve ancient
law. It is true that centuries of law-abiding
and litigious habitude had accumulated, in
the temple archives of each city, vast stores of precedent in ancient deeds
and records of judicial decisions, and that intercourse had assimilated
city custom. The universal habit of writing, and perpetual recourse to
written contract, even more modified primitive custom and ancient
precedent.
Provided the parties could agree, the Code left them free to contract,
as a rule. Their deed of agreement was drawn up in the temple by a
notary public, and confirmed with an oath “by god and the king.” It
was publicly sealed, and witnessed by professional witnesses, as well
as by collaterally interested parties. The manner whereby it was thus
executed may have been sufficient guarantee that its stipulations were
not impious or illegal. Custom or public opinion doubtless secured that

the parties would not agree to “wrong.” In case of dispute, the judges
dealt first with the contract. They might not sustain it, but if the parties
did not dispute it, they were free to observe it. The judges’ decision might,
however, be appealed against. Many contracts contain the proviso that
in case of future dispute, the parties would abide by “the decision of
the king.” The Code made known, in a vast number of cases, what that
decision would be, and many cases of appeal to the king were returned
to the judges with orders to decide in accordance with it. The Code itself
was carefully and logically arranged, and the order of its sections was
conditioned by their subject-matter. Nevertheless, the order is not that
of modern scientific treatises.
Three classes-The Code contemplates the whole population as falling
into three classes: the amelu, the muskinu and the ardu. The amelu was
a patrician, the man of family, whose birth, marriage and death were
registered; of ancestral estates and full civil rights. He had aristocratic
privileges and responsibilities, and the right to exact retaliation for
corporal injuries, but was liable to a heavier punishment for crimes and
misdemeanours, higher fees and fines. To this class belonged the king
and court, the higher officials, the professions and craftsmen. The term
became a mere courtesy title over time, but originally carried with it a
certain status. Already in the Code, when status is not concerned, it is
used to denote “anyone.” There was no property qualification, nor does
the term appear to be racial.
It is most difficult to characterize the muskinu exactly. The term
came in time to mean “a beggar”, and with that meaning has passed
through Aramaic and Hebrew into many modern languages; but though
the Code does not regard him as necessarily poor, he may have been
landless. He was free, but had to accept monetary compensation for
corporal injuries, paid smaller fees and fines, even paid less offerings to
the gods. He inhabited a separate quarter of the city. There is no reason
to regard him as specially connected with the court, as a royal pensioner,
nor as forming the bulk of the population. The rarity of any references to
him in contemporary documents makes further specification conjectural.
The ardu was a slave, his master’s chattel, and formed a very
numerous class. He could acquire property and even hold other slaves.
His master clothed and fed him, and paid his doctor’s fees, but took all
compensation paid for injury done to him. His master usually found
him a slave-girl as wife (the children were then born slaves), often set
him up in a house (with farm or business) and simply took an annual

rent of him. Otherwise, he might marry a free woman (the children
were then free), who might bring him a dower that his master could not
touch, and at his death, one-half of his property passed to his master as
his heir. He could acquire his freedom by purchase from his master, or
might be freed and dedicated to a temple, or even adopted, when he
became an amelu and not a muskinu. Slaves were recruited by purchase
abroad, from captives taken in war, or by freemen degraded for debt or
crime. A slave often ran away; if caught, the captor was bound to restore
him to his master, and the Code fixes a reward of two shekels that the
owner must pay the captor. It was about one-tenth of the average value.
To detain or harbor, etc., a slave was punishable by death. So was an
attempt to get him to leave the city. A slave bore an identification mark,
removable only by a surgical operation, and that later consisted of his
owner’s name tattooed or branded on the arm. On the great estates
in Assyria and its subject provinces, there were many serfs, mostly of
subject race, settled captives, or quondam slaves; tied to the soil they
cultivated, and sold with the estate, yet capable of possessing land and
property of their own. There is little trace of serfs in Babylonia, unless
the muskinu be really a serf.
Citizens tenants of gods-The god of a city was originally considered
the owner of its land, that encircled it with an inner ring of irrigable
arable land and an outer fringe of pasture; and the citizens were his
tenants. The god and his vice regent, the king, had long ceased to disturb
tenancy, and were content with fixed dues in naturalia, stock, money or
service. One of the earliest monuments records the purchase by a king
of a large estate for his son, paying a fair market price and adding a
handsome honorarium to the many owners, in costly garments, plate,
and precious articles of furniture. The Code recognizes complete private
ownership of land, but apparently extends the right to hold land to
votaries, merchants (and resident aliens?). But all land was sold subject
to its fixed charges. The king, however, could free land from these
charges by charter, which was a frequent way of rewarding those who
deserved well of the state.
It is from these charters that we learn nearly all we know of the
obligations lying upon land. The state demanded men for the army and
the corvée, as well as dues in kind. A defined area was bound to find
a bowman, together with his linked pikeman (who bore the shield for
both), and to furnish them with supplies for the campaign. This area
was termed a “bow” as early as the 8th century BC, but the practice
was much earlier. Later, a horseman was also due from certain areas. A
man was only bound to serve so many (six?) times, but the land still had
to find a man annually. This service was usually discharged by slaves
and serfs, but the amelu (and perhaps the muskinu) also went to war.
The “bows” were grouped in tens and hundreds. The corvée was less
regular. The letters of Hammurabi often deal with claims to exemption.
Religious officials and shepherds in charge of flocks were exempt.
Special liabilities lay upon riparian owners to repair canals, bridges,
quays, etc. The state claimed certain proportions of all crops, stock,
etc. The king’s messengers could commandeer any subject’s property,
giving a receipt. Further, every city had its own octroi duties, customs,
ferry dues, highway and water rates. The king had long ceased to be
owner of the land, if he ever was. He had his own royal estates, his
private property, and dues from all his subjects. The higher officials had
endowments and official residences.
The Code regulates the feudal position of certain classes. They held
an estate from the king, consisting of house, garden, field, stock, and a
salary, on condition of personal service on the king’s errand. They could
not delegate the service, on penalty of death. When ordered abroad,
they could nominate a capable son to hold the benefice and carry on
the duty. If there were no capable son, the state put in a locum tenens,
but granted one-third to the wife to maintain herself and children. The
fief was otherwise inalienable; it could not be sold, pledged, exchanged,
sublet, devised or diminished. Other land was leased from the state.
Ancestral estate was strictly tied to the family. If a holder would sell, the
family kept the right of redemption, and there seems to have been no
time-limit to its exercise.
Temple-The temple occupied a most important position. It received
from its estates, from tithes and other fixed dues, as well as from the
sacrifices (a customary share) and other offerings of the faithful, vast
amounts of all sorts of naturalia; besides money and permanent gifts.
The larger temples had many officials and servants. Originally, perhaps,
each town clustered round one temple, and each head of a family had a
right to minister there and share its receipts. As the city grew, the right
to so many days a year at one or other shrine (or its “gate”) descended
within certain families, and became a kind of property that could be
pledged, rented or shared within the family, but not alienated. Despite
all these demands, the temples became great granaries and store-houses,
as they were also the city archives. The temple had its responsibilities.
If a citizen were captured by the enemy and could not ransom himself,
the temple of his city must do so. To the temple came the poor farmer to
borrow seed, grain, or supplies for harvesters, etc. — advances that he
repaid without interest.
The king’s power over the temple was not proprietary, but
administrative. He might borrow from it, but repaid like other borrowers.
The tithe seems to have been considered the rent due to the god for his
land. It is not clear that all lands paid tithe; perhaps only such as once
had a special connection with the temple.
2.2 THE GREEK LEGAL SYSTEM

Greek law, legal systems of the ancient Greeks, of which the best known
is the law of Athens. Although there never was a system of institutions
recognized and observed by the nation as a whole as its legal order, there
were a number of basic approaches to legal problems, certain methods
used in producing legal effects, and a legal terminology, all shared to
varying degrees by the numerous independent states constituting the
Hellenic world. It should not be forgotten,
however, that such common foundations
as there were gave rise to a great variety
of individual legal systems differing as to Important
their completeness and elaboration and The Code
reflecting the tribal (i.e., Dorian, Ionian, deals with a class of
etc.) and historical backgrounds as well as persons devoted to
the changing social, economic, political, the service of a god,
and intellectual conditions of their respective as vestals or hiero-
societies. dules. The vestals
were vowed to chas-
Greek legal life of the 5th and 4th tity, lived together
centuries BCE was determined by three in a great nunnery,
dominant factors. One was the existence of were forbidden to
a multiplicity of city-states (poleis), each of enter a tavern, and,
which possessed and administered its own together with other
set of laws. The second element was the fact votaries, had many
privileges.
that in many, if not most, of the poleis (one
certain exception was Sparta) the laws
were laid down in written statutes, some
of them being elaborate and more or less complete codes setting forth
procedural methods and substantive rules for the administration
of justice. This was the result of a great movement for legal codification
that from the 7th century had swept the Greek world. Solon of
Athens (594 BCE), who had been preceded in 621 by Draco, is the
best known of a number of famous lawgivers, other outstanding ones
being Zaleucus of Locri Epizephyrii (south Italy) and Charondas of
Cantana; Lycurgus of Sparta is considered legendary. A number of
enactments rightly or wrongly attributed to Solon still are known from
literary quotations rendering them in a modified form that reflects a
legislative reform of 403–402 BCE. One of the Draconian laws has been
preserved in an Attic inscription giving it in a revised version dating
from 409 or 408 BCE. The law code of Gortyn, which is itself the revised
version of an older code, is the only one that comes close to being fully
preserved.
The third determining factor for Greek law was the absence of a
body of jurisprudence comparable to that of the Romans. Even the Attic
orators, for all their practical familiarity with the laws of the city, were
mainly interested in presenting arguments suited to persuade the mass
juries before whom they had to argue, not in analyzing the legal system
with the object of obtaining a deeper insight into its implications. Nor,
for that matter, did the philosophers care for the law as it was, their aim
being the discovery of abstract standards of justice.
The three characteristics outlined here were important influences
on the general character of Greek law. The first two of these factors
resulted in a rather stiff positivism. Contrary to views held by scholars
until recently, new research has shown that the Athenian dicasts who
sat in judgment did not feel free to base their verdicts on vague notions
of equity but adhered, at least in theory, to the literal meaning of the
written statutes (nomoi), which they were bound by a solemn oath
to observe. This somewhat narrow clinging to literal interpretation,
combined with the absence of any attempt to deal with statutes or legal
situations in an analytical manner, led to the result that Greek law never
attained the doctrinal refinement of Roman law, notwithstanding the
remarkable technical flexibility that characterized it in Hellenistic times.
At the present stage of research, the only judicial system sufficiently
known to warrant description is that of 4th-century Athens. In the
democratic period its justice was administered by magistrates, popular
courts (dikastēria), and the Areopagus. Functionaries received the
actions and arranged the trials that took place before the courts, with
each functionary having a specific jurisdiction: the archon over matters
pertaining to family and succession, the “king” (archōn basileus) over
religious matters (including murder), the thesmothetai (“determiners of

customs”) and others over the rest. A special jurisdiction was that of
the polemarchos (literally, “general”) over the metics (resident aliens).
The trial competence of the dicasteries rested on the principle, first
introduced within certain limits by Solon and made universal after
the establishment of full democracy, that the citizenry in its totality
should judge the affairs of its members. The dicasts were selected
by lot, every citizen over 30 years old being eligible. In rare cases of
great political importance, the whole hēliaia (i.e., the popular assembly
organized as a court of 6,001 men) was convened. Normally sections of
the hēliaia (specifically called dikastēria), composed of 1,501, 1,001, or 501
men in criminal cases and 201 men in civil cases, were charged with the
decision.
Murder cases were argued before the Areopagus, a body composed
of former archons. Probably transformed from an original council of the
nobility, it was a relic of the predemocratic period.
In the Greek view, the trial served to determine the justification of a
claim to seize the defendant’s person or belongings or both by way of an
enforcement proceeding (praxis). The claim (dikē) might be raised by the
plaintiff in pursuance of a private right or as a “public” (dēmosia) dikē for
the purpose of obtaining the defendant’s punishment. The filing of a
public dikē (technically called a graphē) was open to every citizen. Apart
from this, the differences between private and criminal procedures were
slight.
Both private dikai and graphai had to be initiated by summoning
the defendant (who might be under arrest) to the magistrate having
jurisdiction in the matter and by filing a written complaint with the
latter, who would subject it to a preliminary examination (anakrisis).
Parties to a civil suit concerning pecuniary affairs were then sent to a
public arbitrator (diaitētēs). If one of them refused to accept the award
or if the matter was not subject to compulsory arbitration, the case was
referred to a dicastery presided over by the magistrate. The dicasts, after
listening to the arguments and evidence submitted by the parties, found
their decision, which could only be a choice between the two proposals
made by the parties, by secret ballot without debate. Their judgment was
final between the parties, but the loser might bring a private tort action
(dikē pseudomartyriōn) against a witness whose false deposition had
influenced the verdict. A victorious plaintiff in a private lawsuit had to
enforce the judgment himself by attaching property of the defendant.
In distinct contrast with the Greek philosophy of justice, the positive

law of ancient Greece had little influence on later developments. Its
concepts and methods did, of course, widely determine the legislation
and practice of Hellenistic monarchies, and a few institutions of Greek
origin, such as the “Rhodian” maritime law of jettison or certain methods
of documentation (mostly Hellenistic, to be sure), were adopted by the
Romans. Contrary to views held some decades ago, however, the late
Roman law, and with it west European legal doctrine, did not undergo
any notable degree of Hellenization. Only in the customs of isolated
places in Greece itself do some ancient traditions seem to survive; their
extent is still a problem for legal historians.
2.3 THE ROMAN LEGAL SYSTEM

Like the Mesopotamian legal system, the Roman legal system went
through three phases. The first phase lasted from 8th BC. to 2nd BC. In
the course of these centuries, Rome was a little city. It was a city-state;
state built in the city of Rome. The laws of the city of Rome were at
their lowest stage in terms of organization and narrow in their coverage.
Rome formulated its laws in the form of one of the ancient codes named
the XII Tables in the year 450 BC. The XII Tables was developed in a
response to popular demand; the lower class rebelled demanding that
the law had to be known in advance.
2.3.1 Aspects of the XII Tables

The XII Tables promoted an eye-for-eye principle. Can you explain
this principle? The XII Tables reflected the belief on the part of the Romans
that law should be written in advance, communicated to the governed
and the law had to be left to the judges alone to apply and interpret.
The other feature of the XII Tables was that it was rudimentary, in terms
of arrangement, as the Code of Hammurabi. The XII Tables advocated
for the supreme authority of the father over his wife and children. The
XII Tables reflected the shift in the Roman legal system from god-given
laws to humancreated laws. Prior to the creation of the XII Tables, the
Romans believed that laws were made and modified by gods. These
god-given laws were to be applied and to be interpreted by those
persons closer to gods-priests not by the laity. With the development of
this code, however, there had been a complete shift in the legal system-
the secularization of the legal system was witnessed.
2.3.2 The Significance of the XII Tables

The Twelve Tables-In 451-450 B.C., a special commission drew
up the earliest Roman code of seventy-six civil laws called the Twelve
Tables, which were set up in the Roman Forum on twelve tables of
bronze. Rome was at this time the capital of the western world; Italy,
Spain, France, England, Austria, the countries on the Mediterranean
including the Holy Land and Egypt as well as Germany to the Rhine
River were all under its control. The Twelve Tables were eventually
implemented throughout all seventeen administrative provinces of the
Roman Empire.
The Twelve Tables established a procedural framework for
the prompt and efficient adjudication of civil disputes. An array of
procedures were enacted specifically to govern the conduct of civil
litigation. Significantly, the procedural construct which was established
by the Twelve Tables preserved in the individual - and not the state -
the primary responsibility for pursuing and pressing civil claims and
rights. The Roman civil adjudicatory process thus was not a totalitarian
one, in which the state assumed the role of a protector but rather one
founded on individual rights, in which the state provided only as much
procedure as was needed to support the enforcement of those rights.
Hence, the Roman legal system incorporated a legal culture much as
our own - governed by laws and prescribed rights while, at the same
time, “afford(ing) the private individual himself more or less freedom
of action.”
The impact of the Twelve Tables cannot be understated. Before their
enactment, private redress, under which an injured party was free to
indulge in revenge, was widespread and led to constant disturbances,
violence and vendetta in the community. The Twelve Tables provided the
procedural framework through which peace between man and woman
was peacefully accomplished. Thus, self-redress was replaced by judicial
redress, elevating the role of the state as the peaceful arbiter of disputes
among citizens to a degree far surpassing that of any prior civilization.
Damages and injuries to persons and property were actionable under
the Twelve Tables. Classes of basic wrongs, or torts, were established,
e.g., damage to another’s property, bodily injury to a person, etc. Further
sub-classifications, e.g., injury to a four-legged animal, cutting down a
tree, setting fire to crops, etc., also were established.
The prescribed remedy in most cases under the Twelve Tables was
to provide a retaliation in kind - the “lex talionus.” Usually, in cases
of damage to property, compensation was

made by either replacing or repairing the
thing injured. In limited circumstances, a Hints
victim was given the option of accepting Under the
monetary damages. The enactment of the Lex Aquilia, a par-
Twelve Tables, in effect, signified the first ent’s remedy for
systemic development of an organized injury to his child
body of tort law. Still, the Twelve Tables had gave rise to recovery
shortcomings. Notably, it did not recognize for loss of earning
a general action for damage to property. capacity and medi-
Also, the procedural framework was cal expenses - ele-
ments which clearly
primitive, incomplete, and cumbersome.
are recognizable in
The forms of action were inflexible and were
American courts
characterized by pleading formulae that had today.
to be followed fastidiously. Significantly,
there was no mechanism for equitable relief.
The Lex Aquilla-The shortcomings of the Twelve Tables prompted
the promulgation of the Lex Aquilia, (circa 287 B.C.). The Lex
Aquilia departed dramatically from the “eye for an eye” mentality of
compensation, which was the dominant modality of relief under the
Twelve Tables, and provided in most instances for awards of monetary
compensation. The Lex Aquilia also provided more specific and effective
remedies. Significantly, the Lex Aquilia also provided for punitive
damages, stating that the damages for certain specified injuries “will be
double against one who denies liability.”
A critical aspect of the Lex Aquilia was that it penalized only
affirmative acts; a mere failure to act was insufficient to trigger liability.
Thus, for example, under the original Lex Aquilia, an action could be
brought only if death or injury resulted from direct contact between
the body of the wrongdoer and the thing. The law, in effect, thus only
punished trespassers. The Lex Aquilia’s narrow applicability in this
regard, however, was later cured by the creation of actions which
diminished the requirement of an affirmative act. Another central
tenet of the Lex Aquilia was that liability could be imposed only if the
defendant acted with inuria, that is, with culpability, unlawfulness or
the absence of right. The concept of inuria also extended to actions
involving incorporeal losses, making it the forerunner of modern torts,
such as defamation and slander.
As in the American legal system, the Roman tort system imposed

different levels of duty in assessing culpability for negligent conduct. In
certain circumstances, for example, when a defendant was acting as a
professional, a jurist could find him liable if the defendant did not know
what he was expected to know as a professional. Similarly, culpability
could not be attributed to children or to the insane, who respectively were
deemed incapable or incompetent of understanding the implications
of their behavior. The Lex Aquilia also addressed intentional acts and
helped form initial thinking for our modern concepts of interference
with contractual rights and personal relations. A final requirement to
the Lex Aquilia was that the offended party must have suffered a loss
or damnum (damages). This requirement, of course, exists as one of the
essential elements of a modern day negligence action.
The Classical Jurists-In the second century, Gaius, a distinguished
Roman jurist born during the reign of Hadrian, wrote many works
interpreting the Twelve Tables. He is best known for his authorship of
the Institutes, a beginner’s text in law. Gaius observed that “all our law
relates either to persons, to things or to actions.” In the Institutes, Gaius
accordingly broke law down into three basic divisions - one covering
persons, another on the subject of things (i.e. property, obligations and
succession) and a third relating to causes of action. The Institutes had a
profound impact upon the development of Roman law and provided
the impetus for expanding tort law beyond the narrow procedural
parameters which had characterized - and limited - the Twelve Tables
and the Lex Aquilia.
Gaius interpreted Roman law to give a man the right to suffer an
injury not only through himself but also through his dependent children
and his wife - originating, in effect, the philosophical rationale for loss
of consortium. The laws, which Gaius developed to address “actions,”
e.g., to restrain and enjoin behavior, or to enforce acts by mandamus,
gave rise to the birth of equity jurisprudence. Gaius’ Institutes also
influenced the development of much subsequent law. In 306 A.D.,
Constantine declared himself Holy Roman Emperor, created a stable
currency, a Christian Church affiliated with the state and a legal system
which adhered to the Lex Aquilia and the jurisprudence of Gaius. In 438
A.D., the Emperor Theodosius II created a commission, which further
expanded and refined pre-existing Roman law in a manner consistent
with the erudition of Gaius.
Another important jurist of the third century was Ulpian.

Approximately 40 percent of Justinian’s Digest was taken from Ulpian,
who was murdered in 223 A.D. Ulpian was a proponent of natural law
and in his writings we find such statements as “by natural law all men
are equal.” To Ulpian is attributed the maxim “Honeste Vivere, Alterum
non Laedere, Suum Cuique Tribuere,” i.e., “Live honestly. Injure no one.
Give every man his due,” which is the basic overriding precept found
in book one of Justinian’s Institutes. The simplicity and compassion
underlying this canon is almost breathtaking, summing up in one brief
phrase all that modern legislators and jurists have endeavored to achieve
through endless legislation and innumerable judicial opinions. This
simple directive reveals the essence of the Roman law as a universal law
which is fixed and immutable, shared by all and applicable to everyone
at all places and at all times. Indeed, it is clear that even the pre-amble
to the American Declaration of Independence, which enshrines the
principal that “all men are created equal” and are “endowed with
certain inalienable rights” embodies many tenets of Roman jurists who
confessed the alliance of philosophy with natural law.
One cannot mention the contributions of Ulpian without citing,
in tandem, the contributions of Papinian. Professor Wigmore, in his
instructive A Panorama of the World’s Legal Systems, reminds the
reader that “for us, these two bear also the sentimental distinction, that
(with Paulus) they once dispensed justice in the Roman province of
Britain, as Roman magistrates.” Papinian wrote more than 300 opinions
and has been referred to as the greatest name in Roman law. He enjoyed
the unique distinction that, among the five principal jurists, when they
were divided on an opinion, his opinion should prevail. But Wigmore
points out that Papinian’s “truest fame should be that he died a martyr
to his professional honesty.” When the ruthless Caracalla caused the
assassination of his own brother, who shared the throne with him, and
directed Papinian, then his attorney general, to write a legal opinion in
justification, Papinian replied with these immortal words: “I do not find
it so easy to justify such a deed as you did to commit it.” For this rebuke,
Caracalla had Papinian put to death.
2.3.3 The Second Stage in the life of Roman law

The next stage of the Roman legal system lasted from 2nd BC through
2 AD. Roman in this stage formed an empire, one of the greatest
nd
empires in the history of mankind. The small city-state of Rome grew

militarily and economically. Rome swallowed the outlying territories;
Rome conquered numerous territories followed by their subjugation.

For this big power an elaborate and sound private law was needed. This
was the period of the Classic Roman Private Law. Roman private law of
the period was sound both technically and philosophically. Unlike, the
Greek the Romans were men of practice.
Rome disintegrated after the 2nd AD. Rome was divided into two: the
Western and the Eastern parts. The Western Roman part was conquered
by the German tribes called Barbarians. The Barbarians came up with
their own laws. The Eastern Roman empire, also called the Byzantine
Empire, survived up to 15th century AD. Emperor Justinian was one of
the famous emperors of the Eastern Roman Empire. He sponsored a
code called Corpus Juris Civilis in the 6th century. This code is taken as
the origin of the civil law tradition. Jurists coined the term `justice` after
the name of Emperor Justinian.
2.3.4 The Law of Justinian

However significant his military and architectural achievements, it
is the third grand effort of Justinian that concerns us most in this essay.
It too was an expression of his faith and duty, of his understanding of
the office to which God had called him. Justinian’s most significant
achievement, one to affect the history of the world to this day, was the
production of the summary of Roman Law, the Corpus Juris Civilis,
the body of civil law, as it has been called since the Middle Ages.
This monumental writing remains the foundation of law for most of
Christendom and beyond, and of impact even upon the non-civil system
of the common law of English speaking countries. Like the reconquest
of the west and the ecclesiastical building program, the writing of the
Corpus Juris Civilis expressed Justinian’s obedience to his divine call to
rule Christendom after God’s design. The emperor, under God, was the
font of justice. And, while the emperor’s will was law, he was yet under
the law, for the law granted him his authority. His rule must reflect
God’s perfect justice.
The state of law at Justinian’s accession (and for some time before)
was a sorry affair. The edicts of the emperors--statutes with the force
of law--had not been collected and organized for generations. The
chief body of Roman law-- the centuries of opinions of the lay legal
scholar “jurisconsults”--survived in jumbled assortments. The diversity
of views of these jurisconsults had led to rules of citation in which
emperors commanded judges to follow the preponderant opinion, or
ranked jurisconsults in order of authority and commanded judges to

follow the view of the highest authority on the question. Unfortunately,
the very richness of the Roman legal tradition made for expensive and
unreliable litigation, a situation intolerable to the chief minister of God’s
justice on earth.
Justinian had harbored plans for comprehensive legal reform during
his uncle’s reign, and hit the ground running upon his own accession.
Committing the work to his chief legal expert--the brilliant, but pagan
and corrupt, Tribonian, owner of the finest law library in the world--
Justinian first directed the collection of imperial edicts into a Code in
528. In effect, this work was an update of the previous Code assembled
by the Emperor Theodosius a century before. Now lawyers needed
only to look to the Code to find the statutes of the Roman Empire. A
superseding version of the Code, the only one that survives, replaced
the original several years later.
The success of this enterprise emboldened Justinian for the major
work of his legal reform, the promulgation of the Digest, or Pandects, the
authoritative collection and harmonization of the main body of Roman
law, the opinions of the jurisconsults. For this, Tribonian gathered panels
of law professors, lawyers, and judges, who poured through hundreds
of texts, thousands of opinions, to find and harmonize the best views
of a millennium of Roman legal thought. Justinian’s edict described the
task:
Since there is nothing to be found in all things so worthy of attention
as the authority of the law, which properly regulates all affairs both
divine and human and expels all injustice: We have found the entire
arrangement of the law which has come down to us from the foundation
of the City of Rome and the times of Romulus, to be so confused that it
is extended to an infinite length and is not within the grasp of human
capacity; and hence We were first induced to begin by examining what
had been enacted by former most venerated princes, to correct their
constitutions, and make them more easily understood; to the end that
being included in a single Code, and having had removed all that is
superfluous in resemblance and all iniquitous discord, they may afford
to all men the ready assistance of their true meaning.
After having concluded this work and collected it all in a single
volume under Our illustrious name, raising Ourself above small and
comparatively insignificant matters, We have hastened to attempt the
most complete and thorough amendment of the entire law, to collect
and revise the whole body of Roman jurisprudence, and to assemble in

one book the scattered treatises of so many authors; which no one else
has heretofore ventured to hope for or to expect... Therefore We order
you [Tribonian] to read and revise the books relating to the Roman law
drawn up by the jurists of antiquity, upon whom the most venerated
princes conferred authority to write and interpret the same; so that
from these all the substance may be collected, and, as far as may be
possible, there shall remain no laws either similar to or inconsistent
with one another, but that there may be compiled from them a summary
which will take the place of all. Instead of the ten years allowed by the
emperor to produce the work, Tribonian’s staff, under the watchful eye
of the amateur lawyer Justinian, took only three. It was a miracle. It is
this Digest, promulgated by the emperor as positive law, that makes
Justinian’s Corpus Juris Civilis a landmark of western civilization. The
rediscovery of the Digest in the west in 1080 worked a revolution in
legal science the fruit of which remains to this day.
This third part of the Corpus Juris Civilis, a new work constructed
on the model of the then three-hundred year-old Institutes of Gaius,
distilled the massive Digest and set forth basic principles of Roman law
for the beginner not yet ready to tackle that intimidating collection.
2.3.5 The Organs of the State in Rome

The Birth of the Republic-As legend has it, the city of Rome was
founded by Romulus and his brothers around the Eighth Century
B.C.E. Romulus, who was rescued and raised by wolves, established the
city of Rome on the Palantie Hills. Following a series of battles among
Romulus and his brothers, Romulus managed to become the sole ruler
of the newly founded city. As one of his first acts, Romulus established
an advisory council consisting of the 100 heads of families, called Patres
(“Fathers”).This body soon got the name Senatus (senate) which in Latin
is understood to mean the council of elders or committee of old men.
After the death of Romulus the senate was assigned with the task of
selecting the future king. The task long with advisement were the only
roles the senate had during the monarchy.
Following its birth, Rome was under the rule of kings for
approximately two centuries. Thirsty for expansion, the Roman rulers
immediately began conquering the neighboring cities and villages.
Along with Rome, the newly claimed lands attained the title, Latinum.
Despite the expansion and economic prosperity, the Roman people were
not very fond of their royal leaders. This was primarily due to the harsh
treatment of the people. As a result, in 510 B.C.E., Romans revolted
against the last Estruscan King, Tarquinias Superbus, who was accused
of raping a noble lady. Under the leadership of Lucius Junius Brutus,
who was a dominant figure at this time, and with the help of the Gauls, a
Celtic people in the north, and from the Greeks in the south, the Romans
successfully defeated Tarquinias. With the Roman support, the revolt
against the Estruscan King spread throughout Latinum. With the fall
of Tarquinias Superbus, Rome had attained its independence from the
Estruscan King and for the second time (Athens being the first) in the
human civilization, a republic was born.
After the fall, Rome was the largest city in the Latinum, and as such
it immediately took the dominant role as the decision maker for all of
Latinum. In 495 B.C.E., a treaty was signed between Rome and the other
provinces of Latinum. The document proclaimed Rome as the sole ruler
of Latinum. To fill the leadership gap left by the involuntary departure
of the king, the Roman elite selected two consuls to govern the new
republic. Each consul was in power for one year and their authority
was similar to that of a king. The consuls, who were required to consult
with senate on various matters, were vested with the military, judicial,
administrative, and religious powers of a king. The two shared all the
powers bestowed upon them by the senate and had the authority to veto
each other’s actions.
The Senate-In the meantime, the senate, which survived the
revolution, witnessed a new dawn of superiority and dominance in the
republic. Under the monarchy the senate was only an advisory body.
It did not possess any real power. However, in the republic, the senate
evolved into the most powerful governing body. In achieving this, the
senate increased its membership from one hundred to three hundred,
with membership being limited to Roman Aristocrats.
The most common misconception that people share about the
Roman senate is the belief that the senate was a legislative body.
However, the senate was a committee comprised of influential Roman
elites who issued recommendations on legal practices Although the
senate possessed no legislative power, it had considerable authority
over matters of religion, foreign policy and public finance. Moreover,
its decrees in other matters were well respected. As the embodiment of
Rome, the senate also had the authority to manage and control land,
appoint and receive ambassadors on behalf of the republic, declare war,
appropriate public funds, aid its citizens in foreign lands, and select
consuls. Additionally, during national emergencies, the senate had the
power to appoint a dictator whose powers were not constrained by the
law of the state.
Despite all its power, the senate operated in accordance with
religious restrictions. The senate could only convene for certain
governmental meetings at selected temples. For instance, discussions
pertaining to war were held in the Temple of Bellona, where, as an act of
war, a spear was cast against the distant enemy. (Bellona was the Roman
goddess of war, popular among the Roman soldiers. She accompanied
Mars in battle, and was variously given as his wife, sister or daughter.
She had a temple on the Capitolinus, which was inaugurated in 296
B.C.E. and burned down in 48 B.C.E.) Her festival was celebrated on
June 3. Matters dealing with new years had to be heard in the Temple of
Jupiter Optimus Maximus. In Roman mythology, Jupiter (Jove) held the
same role as Zeus in the Greek pantheon. He was called Jupiter Optimus
Maximus as the patron deity of the Roman state, in charge of laws and
social order.
The Assembly-The main legislative body of the Roman republic
was the assembly, which like the senate, was established during the
monarchy. However, unlike the senate that had tremendous authority,
the assembly had very little power both in the monarchy and the
republic. The assembly was comprised of male Roman citizens serving
in the army. These men were mostly commoners from lower economic
standings. Further, the members of the assembly were divided into five
classes. The classes were determined by wealth, with the wealthiest being
in the higher class and the poor in the lower. (In Roman time a man’s
wealth was measured by how much equipment a man could afford.)
These classes which were known as “Centuries” varied in size and
power. The lower centuries, which were reserved for the landless and
the poor had tens of thousands of members while the higher centuries
had two to three hundred members. Despite their larger size, the lower
centuries had little to no power. Most of the voting and decision making
were done by the higher centuries. In fact, the lower centuries were often
denied the opportunity to cast their votes.
During the monarchy the assembly was the second most powerful
political institution. (The king being the most powerful.) It had the
power to regulate the senate and guide them in their selection of
counsels. The assembly convened to witness the announcement of a
new king or a declaration of war. Further, the assembly had the power to
rule on matters of wills and transfer of lands. However, in the republic
the assembly lost many of its powers to the senate. The assembly’s role
was limited to passing laws, electing magistrates, declaring war and
repealing old laws. The lessening of the assembly’s power was rooted in
the struggle between the orders.
In the monarchy, Rome was under the sole rule of a king. With the
exception of a few landowning families, almost all the people were at
the mercy of his rule. As such, the Roman aristocrats, called patricians,
were unable to fully exert their influence on the commoners who were
known as the plebs or plebeians. Following the fall of the monarchy,
there was a gap in the Roman governance. Without any hesitation, the
patricians filled this gap by taking full control of the new government.
These aristocrats, who were members of the senate and powerful
centuries, made the decisions for all of Rome. The Plebeians, whose
support was a key factor in the overthrow of the king, were dissatisfied
with rule of the Patricians. Although many of the commoners were
members of the assembly, their views and requests were often denied or
ignored. At the same time, the Roman economy was extremely dire. Poor
peasants unable to work or pay debts fell into ruins. A great number of
commoners lost lands and were forced into slavery. Thus, in an effort
to express their frustration against the Roman elite, the plebs organized
themselves against the patricians and so began the legendary “struggle
between the orders.”
In the early days of the republic, Rome was threatened by its
neighbors and naturally the patricians needed the help of the plebeians
to defend Rome against its enemies. This weakness gave the plebs a great
opportunity to gain political ground in the new city. Hence, around late
Fifth Century B.C.E., the commoners refused to engage in any military
service or agricultural work until the senate agreed to grant them some
political power. After months of protests, the patricians recognized the
plebs’ right to hold meetings and elect their own political officers. The
result was the tribuni plebis, or people’s tribunes, who represented the
grievances of the commoners to the senate and the consuls. Tribuni
plebes also had the power to veto consuls’ laws introduced by the
senate. Additionally, the tribuni plebes had the duty to aid any citizen
(regardless of wealth) in need.
The patrician concessions eased the strife between the Roman
classes for a brief period. However, the plebs contended that their
rights and properties were not adequately protected by the unwritten

laws. In essence, Rome had two set of laws, those passed by the senate
(Senatus Consulta) for the patricians and those passed by the assembly
tribuni plebes for the commoners. Neither class honored the laws of
the other. The plebs maintained that the patricians’ laws were unfair
and the patricians held that their laws were superior to the plebians’
laws. Consequently, in 462 B.C.E., the tribuni plebes proposed that a
commission be established to reduce to writing the entire body of Roman
law. The patricians fiercely opposed the proposal, but after ten years of
debates, the commission was established.
Codification of Laws and the Twelve Tables-The commission was
comprised of ten men, five plebs and five patricians. The members of
the commission, who were referred to as decemviri, wisely codified the
Roman laws into ten chapters and unveiled it to the Republic in 451 B.C.E.
A year later, a newly elected commission, added two more chapters. The
twelve chapters were then inscribed into twelve metal or wood tablets,
and permanently placed in the Roman Forum for the inspection of all
the citizens. Small copies were also made for the public and they were
widely used. Thereafter, the laws established by the decemviris were
commonly designated as the Twelve Tables of Roman Law.
The Twelve Tables covered all the areas of the law. Unfortunately,
the Tables were destroyed in 390 B.C.E., during the invasion of Rome by
the Gauls. As a result, the exact content of the Twelve Tables remains a
mystery. Nonetheless, numerous fragments have been gathered from the
writing of ancient authors such as Cicero, Dionysius and Gaius. From
their references historians have been able to extract laws governing
theft, property, fraud, debts, and various other crimes. The following
are some of these laws. “One was permitted to remove a branch from a
neighbor’s tree which overhung one’s property.” “For the theft of crops
there was the death penalty (clubbing to death).””For slander there was
the death penalty (clubbing to death).””Marriage between patricians
and plebeians is forbidden”
Amazingly, the Tables differentiated between intentional and
accidental crimes. This illustrates that the concept of Mens Rea
possibly dates back to ancient times. There were also different degrees
for assaults, and murders. However, despite its legal sophistication,
the Twelve Tables was not the perfection of equity or justice. The law
assigned different degrees of punishment in accordance with classes.
For instance, slaves and peasants received the harshest punishments
while the nobles received milder punishments. Furthermore, as often

is the case in modern legislation, the tables were deliberately codified
in obscure and ambiguous language to allow the patrician judges to
interpret them in a manner that would serve their interest. Regardless of
its bias, the Twelve Tables remain as one of the greatest achievements in
the history of human civilization. In fact, many scholars contend that the
codification of the Twelve Tables marks the beginning of European law.
In the aftermath of the Twelve Tables, the strife between the plebeians
and the patricians continued. The plebeians demanded political power,
land control legislation along with debt relief. When the nobles ignored
their demands, the commoners, once again, refused to serve in the
military. The patricians agreed to meet the plebs’ demands. The result
was the Licinian Legislation of 367 B.C.E. The new law limited land
ownership and it allowed for one of the two consuls to be a plebeian. This
was a tremendous victory for the plebs because in the years following
the Licinian Legislation, the plebeians
witnessed a period of great equality. A wave
of new legislation provided for marriage
between plebeians and patricians along with Hints
equal protection of the laws for all free men.
The term noble was no longer synonymous However,
around 66 B.C.E. a
with patricians because many commoners
new breed of aristo-
had accumulated great wealth. The peace crats appeared who
and tranquility at home allowed Rome to wished to return
center its attention on expansion. Within a Rome to the early
span of one hundred years, Rome conquered years of the republic
all of Latinum and much of the neighboring and to isolate the
territories. In 286 B.C.E., after 70 years of power in the hands
war, Rome defeated the Samintes, and later of a few.
in 146 B.C.E. Rome crushed Carthage. (The
Samintes were an ancient people who lived
in Samnium, the mountainous center of southern Italy. Carthage was a
great city of antiquity, on the northern coast of Africa, near modern Tunis,
Tunisia. By the middle of the Second Century B.C.E., Italy (from Sicily to
the Rubicon) and portions of northern Africa were under the dominion
of the Republic. At this time the Roman Republic was wealthier and
stronger than it had ever been, but its glory was short lived.
The Fall of the Republic and the Rise of the Empire-The expansion
of the Republic brought tremendous wealth to Rome. However, the
riches were in the hands of a few. The rich were getting richer and the
poor, impoverished by the long wars, were getting poorer. The social
disparity once again led a series of reform legislation. Land ownership
regulations along with new debt relief were introduced. New criminal
courts were established and jurors were allowed to be taken from the
middle class. The law of appeal was brought back so citizens could
request a rehearing before the assembly.
Among the political hopefuls were Gnaeus Pompeius Magnus,
known as Pompey, Marcus Licinius Crassus and one of the greatest
Roman figures Gaius Julius Caesar. These nobles were military men of
great respect and together they formed a strong political alliance known
as the First Triumvirate. Though the Triumvirate passed a few laws for
the betterment of Rome, its legislative ambitions was overshadowed
by its thirst for war and glory. In 58 B.C.E., Caesar embarked upon his
infamous campaign of the Gauls. In a span of ten years, Caesar captured
millions and took in great wealth for Rome and himself. Caesar’s success
over the Gauls turned Pompey against him and made the two bitter
enemies. On January of 49 B.C.E., Caesar crossed the Rubicon River
(the boundary between the Gauls and Italy) and crushed Pompey in a
bloody civil war. The defeat of Pompey made Caesar the sole master of
the Roman State. Caesar retained the senate but vested all the powers
of the state in his own hands. This did not go well with many of the
senators and as a result in 44 B.C.E. Caesar was stabbed to death by the
members of the senate at the Roman Forum.
Evolution of Roman Law and the Rise of Law Schools During the
Empire-The death of Caesar marked the end of the Republic. Following
his assassination, Rome fell into a short period of war, but Caesar’s
successor and grandnephew Gaius Octavius quickly mobilized his
forces and proclaimed himself the absolute ruler of Rome. The reign of
Octavius (also known as Emeror Augustus) marked the beginning of
the Roman Empire. For the next two hundred years the sole concern of
Rome was glory and expansion. There were a very few laws passed of
any importance. Private laws of the aristocracy governed the domestic
life of the citizens. The life, liberty and property of the people were at the
mercy of the king. The senate, which was still in existence, only passed
laws that promoted the power of the king. However, in the late Second
Century, there was a revival of Roman jurisprudence. By this time,
the empire had become so vast that a new legal system was needed.
Thus, jurisdictions were assigned to courts through the empire and the
procedures for appeals were made more definite. Moreover, judges
were allowed to publish their opinions. This was significant to the study
of law because it allowed individuals to examine the rationales of the

judiciary. Nonetheless, the biggest piece of legislation was The Perpeual
Edict, which regulated procedural laws, property and the market. The
law required vendors to disclose hidden defects and imposed liability
on the intentional destruction of the property of another. These laws
were the first of their kind and they would lay the foundation for many
similar laws in future societies.
From the Second Century to the Fifth Century, Roman law
witnessed limited progress. During this period, the empire’s primary
concern was expansion. By the end of Fourth Century, Rome had
conquered Gaul (Modern France), Spain, Judea, Britain, Africa, and
much of Asia Minor. In the process, Rome adopted Christianity as its
official religion and established a new capital in the eastern part of the
empire. The new city was named Constantinople, after the infamous
Roman emperor Constantine the Great who was the first Roman ruler to
embrace Christianity. Constantine ruled from 306 to 337 B.C.E. and was
the founder of Constantinople (present-day Istanbul), which remained
the capital of the Eastern Roman (Byzantine) Empire until 1453.
With the rise of Constantinople, came the birth of law schools in
Rome and Constantinople. The law schools were public institutions
under the direct control of the emperors. They offered a five year
program in areas of law prescribed by the imperial authority. Students
were taught by authorized instructors who had attained a license from
the imperial office. Severe punishments were imposed upon those who
taught without a license. Like the Twelve Tables, the establishment of law
schools was a monumental achievement in the advancement of Roman
law. It provided an arena where the law could be analyzed, discussed and
taught by prominent jurists. In a short time, these scholarly institutions
became the breeding ground for many revolutionary legal doctrines,
but none were more revolutionary than the Corpus Juris Civilis.
Justinian’s Corpus Juris Civilis-Often referred to by scholars as
the greatest legal product of Roman law, the Corpus Juris Civilis, also
known as the Justinian Compilation or the Justinian Code, was codified
during the reign of Roman emperor Flavius Petrus Sabgatius Justinianus
(Justinian, 483-565 C.E.). Justinian was born to a peasant family on
May 11, 483 C.E. in modern Romania. He received his education in
Constantinople and he was well versed in theology, philosophy, poetry,
architecture, and law. At age 35, his uncle Justin became emperor. Justin
was a former soldier and he lacked experience in public affairs. Thus, in
524 C.E., he appointed Justinian as his co-emperor. In 527 C.E., upon his
uncle’s death, Justinian became the sole ruler of Rome. Justinian was an
“executive of rare qualities.” He understood the needs of his empire and
he had the energy and the know how to meet those needs. Upon coming
to power, he began extensive public construction projects, by building
new roads, and bridges. Militarily, he led successful campaigns against
the Vandals in Africa and the Persians. Nonetheless, Justinian’s greatest
accomplishment was the codification of Roman law and the publication
of the Corpus Juris Civilis.
By the time of Justinian, Roman law had reached its highest peak.
The laws were highly developed and scattered in various manuscripts
and imperial scrolls. Justinian was extremely passionate about the rich
history of Roman law. His desire was to collect all of Roman laws and
transform them into a coherent body. To do so, he appointed a sixteen
member commission (comprised of law professors and consuls) to gather
all the imperial scripts, imperial laws and the writings of renowned
jurists. On December 15, 530 C.E., in an imperial instruction to the
commission, Justinian said: “It is our desire to arrange the constitution
of former emperors in a proper order ... we shall rearrange the entire
Jurisprudence of Rome and to present in one volume the scattered works
of many authors ... this is a task that no one has dared to do ... it is a task
not only of great difficulty but impossible ... However trusting in God ...
we shall be glorious.”
2.4 MEANING OF ROMAN LAW

Roman law, the law of ancient Rome from the time of the founding
of the city in 753 BCE until the fall of the Western Empire in the 5th
century CE. It remained in use in the Eastern, or Byzantine, Empire until
1453. As a legal system, Roman law has affected the development of law
in most of Western civilization as well as in parts of the East. It forms
the basis for the law codes of most countries of continental Europe and
derivative systems elsewhere.
The term Roman law today often refers to more than the laws
of Roman society. The legal institutions evolved by the Romans
had influence on the laws of other peoples in times long after the
disappearance of the Roman Empire and in countries that were never
subject to Roman rule. To take the most striking example, in a large part
of Germany, until the adoption of a common code for the whole empire
in 1900, the Roman law was in force as “subsidiary law”; that is, it was
applied unless excluded by contrary local provisions. This law, however,

which was in force in parts of Europe long after the fall of the Roman
Empire, was not the Roman law in its original form. Although its basis
was indeed the Corpus Juris Civilis—the codifying legislation of the
emperor Justinian I—this legislation had been interpreted, developed,
and adapted to later conditions by generations of jurists from the 11th
century onward and had received additions from non-Roman sources.
2.4.1 Development of the Jus Civile and Jus Gentium

In the great span of time during which the Roman Republic and
Empire existed, there were many phases of legalistic development.
During the period of the republic (753–31 BCE), the jus civile (civil law)
developed. Based on custom or legislation, it applied exclusively to
Roman citizens. By the middle of the 3rd century BCE, however, another
type of law, jus gentium (law of nations), was developed by the Romans to
be applied both to themselves and to foreigners. Jus gentium was not the
result of legislation, but was, instead, a development of the magistrates
and governors who were responsible for administering justice in cases
in which foreigners were involved. The jus gentium became, to a large
extent, part of the massive body of law that was applied by magistrates
to citizens, as well as to foreigners, as a flexible alternative to jus civile.
Roman law, like other ancient systems, originally adopted
the principle of personality—that is, that the law of the state applied
only to its citizens. Foreigners had no rights and, unless protected by
some treaty between their state and Rome, they could be seized like
ownerless pieces of property by any Roman. But from early times there
were treaties with foreign states guaranteeing mutual protection. Even
in cases in which there was no treaty, the increasing commercial interests
of Rome forced it to protect, by some form of justice, the foreigners who
came within its borders. A magistrate could not simply apply Roman law
because that was the privilege of citizens; even had there not been this
difficulty, foreigners would probably have objected to the cumbersome
formalism that characterized the early jus civile.
The law that the magistrates applied probably consisted of
three elements: (1) an existing mercantile law that was used by the
Mediterranean traders; (2) those institutions of the Roman law that, after
being purged of their formalistic elements, could be applied universally
to any litigant, Roman or foreigner; and (3) in the last resort, a magistrate’s
own sense of what was fair and just. This system of jus gentium was
also adopted when Rome began to acquire provinces so that provincial

governors could administer justice to the peregrini (foreigners). This word
came to mean not so much persons living under another government
(of which, with the expansion of Roman power, there came to be
fewer and fewer) as Roman subjects who were not citizens. In general,
disputes between members of the same subject state were settled by that
state’s own courts according to its own law, whereas disputes between
provincials of different states or between provincials and Romans
were resolved by the governor’s court applying jus gentium. By the 3rd
century CE, when citizenship was extended throughout the empire, the
practical differences between jus civile and jus gentium ceased to exist.
Even before this, when a Roman lawyer said that a contract of sale
was juris gentium, he meant that it was formed in the same way and had
the same legal results whether the parties to it were citizens or not. This
became the practical meaning of jus gentium. Because of the universality
of its application, however, the idea was also linked with the theoretical
notion that it was the law common to all peoples and was dictated by
nature—an idea that the Romans took from Greek philosophy.
2.4.2 Written and Unwritten Law

The Romans divided their law into jus scriptum (written law)
and jus non scriptum (unwritten law). By “unwritten law” they meant
custom; by “written law” they meant not only the laws derived from
legislation but, literally, laws based on any written source.
There were various types of written law, the first of which consisted
of leges (singular lex), or enactments of one of the assemblies of the whole
Roman people. Although the wealthier classes, or patricians, dominated
these assemblies, the common people, or plebeians, had their own
council in which they enacted resolutions called plebiscita. Only after the
passage of the Lex Hortensia in 287 BCE, however, did plebiscita become
binding on all classes of citizens; thereafter, plebiscita were generally
termed leges along with other enactments. In general, legislation
was a source of law only during the republic. When Augustus
Caesar established the empire in 31 BCE, the assemblies did not at
once cease to function, but their assent to any proposal became merely
a formal ratification of the emperor’s wishes. The last known lex was
passed during the reign of Nerva (96–98 CE).
The earliest and most important legislation, or body of leges, was
the Twelve Tables, enacted in 451–450 BCE during the struggle of the
plebeians for political equality. It represented an effort to obtain a

written and public code that patrician magistrates could not alter at will
against plebeian litigants. Little is known of the actual content of the
Twelve Tables; the text of the code has not survived, and only a few
fragments are extant, collected from allusions and quotations in the
works of authors such as Cicero. From the fragments it is apparent that
numerous matters were treated, among them family law, delict (tort, or
offense against the law), and legal procedure.
A second type of written law consisted of the edicta (edicts), or

proclamations issued by a superior magistrate (praetor) on judicial
matters. The office of praetor was created in 367 BCE to take over the
expanding legal work involving citizens; later, a separate praetor was
created to deal with foreigners. Upon taking office, a praetor issued an
edict that was, in effect, the program for his year in office. The curule
aediles, who were the magistrates responsible for the care and supervision
of the markets, also issued edicts. During the later stages of the republic,
these praetorian and magisterial edicts became an instrument of legal
reform, and leges ceased to be a major source of private law.
The Roman system of procedure gave the magistrate great powers
for providing or refusing judicial remedies, as well as for determining
the form that such remedies should take. The result of this magisterial
system was the development of the jus honorarium, a new body of
rules that existed alongside, and often superseded, the civil law.
The edicta remained a source of law until about 131 CE, when the
emperor Hadrian commissioned their reorganization and consolidation

and declared the resulting set of laws to be unalterable, except by the
emperor himself.
A third type of written law was the senatus consulta, or resolutions
of the Roman senate. Although these suggestions to various magistrates
had no legislative force during the republic, they could be given force
by the magistrates’ edicts. In the early empire, as the power of the
assemblies declined and the position of the emperor increased, senatus
consulta became resolutions that endorsed the proposals of the emperor.
As the approval of the Senate became increasingly automatic, the
emperor’s proposals became the true instrument of power. Consequently,
emperors ceased referring proposals to the Senate and, not long after
the early imperial period, ended the practice of legislating through the
Senate.
A fourth type of written law consisted
of the constitutiones principum, which were,
in effect, expressions of the legislative power Important
of the emperor. By the middle of the 2nd
During
century CE, the emperor was, essentially, the early empire,
the sole creator of the law. The chief forms numerous commen-
of imperial legislation were edicts or taries were written
proclamations; instructions to subordinates, by the great jurists
especially provincial governors; written on individual leges,
answers to officials or others who consulted on civil law, on the
the emperor; and decisions of the emperor edict, and on law as
sitting as a judge. a whole. In the 5th
century a law was
The last type of written law was passed stipulating
the responsa prudentium, or answers to that only the works
legal questions given by learned lawyers of certain jurists
to those who consulted them. Although could be cited. Legal
scholarship declined
law, written and unwritten, was originally
in the postclassical
a rather secretive monopoly of the college period.
of pontiffs, or priests, a recognizable class
of legal advisers, juris consulti or prudentes,
had developed by the early 3rd century BCE.
These legal advisers were not professionals as such but men of rank who
sought popularity and advancement in their public careers by giving
free legal advice. They interpreted statutes and points of law, especially
unwritten law, advised the praetor on the content of his edict, and
assisted parties and judges in litigation. Augustus empowered certain

jurists to give responsa with the emperor’s authority; this increased
their prestige, but the practice lapsed as early as 200 CE.
2.4.3 The Law of Justinian

When the Byzantine emperor Justinian I assumed rule in 527 CE,
he found the law of the Roman Empire in a state of great confusion. It
consisted of two masses that were usually distinguished as old law and
new law.
The old law comprised (1) all of the statutes passed under the republic
and early empire that had not become obsolete; (2) the decrees of the
Senate passed at the end of the republic and during the first two centuries
of the empire; and (3) the writings of jurists and, more particularly, of
those jurists to whom the emperors had given the right of declaring
the law with their authority. These jurists, in their commentaries, had
incorporated practically all that was of importance. Of these numerous
records and writings of old law, many had become scarce or had been
lost altogether, and some were of doubtful authenticity. The entire mass
of work was so costly to produce that even the public libraries did not
contain complete collections. Moreover, these writings contained many
inconsistencies.
The new law, which consisted of the ordinances of the
emperors promulgated during the middle and later stages of the
empire, was in a similarly disorganized condition. These ordinances or
constitutions were extremely numerous and contradictory. Because no
complete collection existed (earlier codices were not comprehensive),
other ordinances had to be obtained separately. It was thus necessary
to collect into a reasonable corpus as much of the law, both new and
old, as was regarded as binding and to purge its contradictions and
inconsistencies.
Immediately after his accession, Justinian appointed a commission
to deal with the imperial constitutions. The 10 commissioners went
through all of the constitutions of which copies existed, selected
those that had practical value, cut all unnecessary matter, eliminated
contradictions by omitting one or the other of the conflicting passages,
and adapted all the provisions to the circumstances of Justinian’s own
time. The resulting Codex Constitutionum was formally promulgated in
529, and all imperial ordinances not included in it were repealed. This
Codex has been lost, but a revised edition of 534 exists as part of the so-
called Corpus Juris Civilis.
The success of this first experiment encouraged the emperor to
attempt the more difficult enterprise of simplifying and digesting the
writings of the jurists. Thus, beginning in 530, a new commission of 16
eminent lawyers set about this task of compiling, clarifying, simplifying,
and ordering; the results were published in 533 in 50 books that became
known as the Digest (Digesta) or Pandects (Pandectae). After enacting
the Digest as a lawbook, Justinian repealed all of the other law contained
in the treatises of the jurists and directed that those treatises should
never be cited in the future, even by way of illustration; at the same time,
he abrogated all of the statutes that had formed a part of the old law. An
outline of the elements of Roman law called the Institutes of Justinian
(or simply Institutiones) was published at about the same time.
Between 534 and his death in 565, Justinian himself issued a great
number of ordinances that dealt with many subjects and seriously
altered the law on many points. These ordinances are called, by way of
distinction, new constitutions (Novellae Constitutiones Post Codicem);
in English they are referred to as the Novels. All of these books—the
revised Codex Constitutionum (the original work was revised four
and a half years later), the Digest, the Institutes, and the Novels—
are collectively known as the Corpus Juris Civilis. This Corpus Juris
of Justinian, with a few additions from the ordinances of succeeding
emperors, continued to be the chief lawbook in what remained of the
Roman world. In the 9th century a new system known as the Basilica
was prepared by the emperor Leo VI the Wise. It was written in Greek
and consisted of parts of the Codex and parts of the Digest, joined and
often altered in expression, together with some material from the Novels
and imperial ordinances subsequent to those of Justinian. In the western
provinces, the law as settled by Justinian held its ground.
2.4.4 Categories of Roman Law

The Law of Persons
“The main distinction in the law of persons,” said the 2nd-century
jurist Gaius, “is that all men are either free or slaves.” The slave was,
in principle, a human chattel who could be owned and dealt with like
any other piece of property. As such, he was not only at the mercy of his
owner but rightless and (apart from criminal law) dutiless. Even though
the slave was in law a thing, he was in fact a man, and this modified the
principle. A slave could not be a party to a contract nor own property,
but he could be given a de facto patrimony, which could be retained if he
were freed; if he made a “commitment,” it could ultimately be enforced
against his master. A manumitted slave became, in most instances, not
only free but also a citizen.
The definition of citizenship was important for the purposes of
private law because certain parts applied only to citizens (jus civile).
Noncitizens could be either Latini, inhabitants of Roman settlements that
had the rights of members of the original Latin League, or peregrini, who
were members of foreign communities or of those territories governed
but not absorbed by Rome. The great extension of the citizenship by the
emperor Caracalla in 212 CE reduced the importance of this part of the
law.
Family
The chief characteristic of the Roman family was the patria
potestas (paternal power in the form of absolute authority), which the
elder father exercised over his children and over his more remote
descendants in the male line, whatever their age might be, as well as
over those who were brought into the family by adoption—a common
practice at Rome. Originally this meant not only that he had control over
his children, even to the right of inflicting capital punishment, but that
he alone had any rights in private law. Thus, any acquisitions made by a
child under potestas became the property of the father. The father might
indeed allow a child (as he might a slave) certain property to treat as his
own, but in the eye of the law it continued to belong to the father.
By the 1st century CE there were already modifications of the
system: the father’s power of life and death had shrunk to that of light
chastisement, and the son could bind his father by contract with a third
party within the same strict limits that applied to slaves and their masters.
Sons also could keep as their own what they earned as soldiers and even
make wills of it. In Justinian’s day, the position regarding property had
changed considerably. What the father gave to the son still remained,
in law, the father’s property, but the rules concerning the son’s own
earnings had been extended to many sorts of professional earnings; and
in other acquisitions (such as property inherited from the mother), the
father’s rights were reduced to a life interest (usufruct). Normally, patria
potestas ceased only with the death of the father; but the father might
voluntarily free the child by emancipation, and a daughter ceased to be

under her father’s potestas if she came under the manus of her husband.
There were two types of marriage known to the law, one
with manus and one without, but the manus type of marriage was rare
even in the late republic and had disappeared long before Justinian’s
day. Manus was the autocratic power of the husband over the wife,
corresponding to patria potestas over the sons.
Marriage without manus was by far the more common in all properly
attested periods. It was formed (provided the parties were above the age
of puberty and, if under potestas, had their father’s consent) simply by
beginning conjugal life with the intention of being married, normally
evidenced by the bringing of the bride to the bridegroom’s house. The
wife remained under her father’s potestas if he were still alive; if he were
dead, she continued (as long as guardianship of women continued)
to have the same guardian as before marriage. Both spouses had to
be citizens, or if one was not, he or she must have conubium (the right,
sometimes given to non-Romans, of contracting a Roman marriage). In
marriage without manus, the property of the spouses remained distinct,
and even gifts between husband and wife were invalid.
Divorce was permitted to the husband in early Rome only on
specific grounds. Later, divorce was always possible at the instance of
the husband in cases of marriage with manus; in marriage without manus,
either party was free to put an end to the relationship. A formal letter
was usually given to the spouse, but any manifestation of intention to
end the relationship—made clear to the other party and accompanied
by actual parting—was all that was legally necessary. The Christian
emperors imposed penalties on those who divorced without good
reason, including prohibitions on remarriage, but the power of the
parties to end the marriage by their own act was not taken away.
Concubinage was recognized in the empire as a “marriage” without
a dowry, with a lower status for the woman, and with provisions that the
children were not legally the father’s heirs. A man could not have both
a wife and a concubine. In the 4th century the emperor Constantine first
enacted a law enabling the children of such unions to be legitimated by
the subsequent marriage of their parents. Medieval civil law extended
this rule to all illegitimate children.
Persons under the age of puberty (14 for males, 12 for females)
needed tutores if they were not under patria potestas. Such tutors could
be appointed under the will of the father or male head of the household.
Failing such an appointment, the guardianship went to certain
prescribed relatives; if there were no qualified relations, the magistrates
appointed a tutor. Originally, children were considered adults at the
age of puberty; but, after a long development, it became usual for
those between the ages of puberty and 25 to have guardians who were
always magisterially appointed. Originally, all women not under patria
potestas or manus also needed tutores, appointed in the same way as those
for children. By the early empire, this provision was little more than a
burdensome technicality, and it disappeared from Justinian’s law.
Corporations
The Romans did not develop a generalized concept of juristic
personality in the sense of an entity that had rights and duties. They
had no terms for a corporation or a legal person. But they did endow
certain aggregations of persons with particular powers and capacities,
and the underlying legal notion hovered between corporate powers, as
understood in modern law, and powers enjoyed collectively by a group
of individuals. The source of such collective powers, however, was
always an act of state.
Four types of corporation were distinguished:
1. Municipia (the citizen body, originally composed of the
conquered cities and later of other local communities)
possessed a corporateness that was recognized in such
matters as having the power to acquire things and to contract.
In imperial times, they were accorded the power to manumit
slaves, take legacies, and finally—though this became general
only in postclassical law—to be instituted as an heir.
2. The populus Romanus, or the “people of Rome,” collectively
could acquire property, make contracts, and be appointed
heir. Public property included the property of the treasury.
3. Collegia—numerous private associations with specialized
functions, such as craft or trade guilds, burial societies,
and societies dedicated to special religious worship—seem
to have carried on their affairs and to have held property
corporately in republican times. The emperors, viewing
the collegia with some suspicion, enacted from the beginning
that no collegium could be founded without state authority and
that their rights of manumitting slaves and taking legacies be
closely regulated.
4. Charitable funds became a concern of postclassical law.

Property might be donated or willed—normally, but not
necessarily, to a church—for some charitable use, and the
church would then (or so it appears from the evidence)
have the duty of supervising the fund. Imperial legislation
controlled the disposition of such funds so that they could not
be used illegally. In such cases ownership is thought to have
been temporarily vested in the administrators.
The Law of Property and Possession

In Roman law (today as well as in Roman times), both land
and movable property could be owned absolutely by individuals.
This conception of absolute ownership (dominium) is characteristically
Roman, as opposed to the relative idea of ownership as the better right
to possession that underlies the Germanic systems and English law.
Mancipatio, or formal transfer of property, involved
a ceremonial conveyance needing for its accomplishment the presence
of the transferor and transferee, five witnesses (adult male Roman
citizens), a pair of scales, a man to hold them, and an ingot of copper
or bronze. The transferee grasped the object being transferred and said,
“I assert that this thing is mine by Quiritarian [Roman] law; and let it
have been bought by me with this piece of copper and these copper
scales.” He then struck the scales with the ingot, which he handed to the
transferor “by way of price.”
In jure cessio was a conveyance in the form of a lawsuit. The
transferee claimed before the magistrate that the thing was his, and the
transferor, who was the defendant, admitted the claim. The magistrate
then adjudged the thing to the transferee. (The sham-lawsuit theory,
however, is not acceptable to all modern scholars, principally because
the judgment of ownership was valid against any possible private
claimant, not merely against the defendant, as in a true lawsuit.)
Usucapio referred to ownership acquired by length of possession. In
early Roman law, two years of continuous possession established title in
the case of land, one year in the case of movables. In the developed law,
possession must have begun justifiably in good faith, and the thing must
not have been stolen (even though the possessor himself may have been
innocent of the theft) or acquired by violence.
In terms of occupatio, ownerless things that were susceptible to

private ownership (excluding such things as temples) became the
property of the first person to take possession of them. This applied to
things such as wild animals and islands arising in the sea.
Accessio worked in this manner: if an accessory thing belonging to A
was joined to a principal one belonging to B, the ownership in the whole
went to B. For example, if A’s purple were used to dye B’s cloth, the dyed
cloth belonged wholly to B. By far the most important application of this
rule asserted that whatever is built on land becomes part of the land and
cannot be separately owned.
Specificatio was somewhat different. If A made a thing out of material
belonging to B, one school of thought held that ownership went to A,
and another held that it remained with B. Justinian adopted a “middle
opinion”: B retained ownership if reconversion to the original condition
was possible (a bronze vase could be melted down); A obtained
ownership if it was not (wine cannot be reconverted into grapes).
According to thesauri inventio, or treasure trove, the final rule was
that if something was found by a man on his own land, it went to him;
if it was found on the land of another, half went to the finder, half to the
landowner.
Traditio was the simple delivery of possession with the intention
of passing ownership and was the method of conveyance of the jus
gentium. If A sold and merely delivered a slave to B, under the jus
civile, A remained the owner of the slave until a specified length of time
had elapsed. The praetors, however, devised procedural methods of
protecting B’s possession in such a way that A’s title became valueless,
and B was said to own the thing in bonis. This was a remarkable triumph
for informality in the granting of title. From the phrase in bonis, later
writers coined the expression “bonitary ownership.” Justinian abolished
the theoretical distinction between civil and bonitary ownership.
The ordinary leaseholder had no protection beyond a contractual
right against a landlord and could not assign tenancy. But there were
certain kinds of tenure that did provide the tenant protection and that
were assignable: agricultural and building leases granted for a long
term or in perpetuity often enabled leaseholders to enjoy rights hardly
distinguishable from ownership.
There were also servitudes, in which one person enjoyed certain

rights in property owned by another. Rights of way and water
rights were rustic servitudes; rights to light or to view were urban
servitudes. Ususfructus was the right to use and take the fruits (such as
crops) of a thing and corresponded to the modern notion of life interest.
A more restricted right, likewise not extending beyond the life of the
holder, usus permitted merely the use of a thing; thus, a person could
live in a house but could not let it, as that would be equivalent to “taking
the fruits.”
Since ownership was absolute, it was sharply distinguished from
possession, which the civil law did not protect as such. Any owner
wishing to interfere with an existing possessor, however, had to bring
legal action to prove his title. If he interfered on his own authority,
the praetor would see that the original state of affairs was restored
before adjudicating the title.
Delict and Contract
Obligations were classified by classical jurists into two main
categories, according to whether they arose from delict or contract.
Justinian’s law recognized two further classes of obligation, termed
quasi-delict and quasi-contract.
As early as the 6th and 5th centuries BCE, Roman law was
experiencing a transition from a system of private vengeance to one in
which the state insisted that the person wronged accept compensation
instead of vengeance. Thus, in the case of assault (injuria), if one man
broke another’s limb, talio was still permitted (that is, the person
wronged could inflict the same injury as he had received); but in other
cases, fixed monetary penalties were set. Theft involved a penalty of
twice the value of the thing stolen, unless the thief was caught in the act,
in which case he was flogged and “adjudged” to the person wronged.
By the early empire, reforms had substituted a fourfold penalty in
the case of a thief who was caught in the act, and the court assessed all
penalties for injuria (which by then included defamation and insulting
behavior). The law of damage to property was regulated by statute
(the Lex Aquilia), which in turn was much extended by interpretation.
Additionally, there were situations in which a person could be held
liable for damages even though he was not personally responsible. In
Justinian’s Institutes only four delicts were dealt with: theft, robbery
with violence, damage to property, and verbal or physical assault.
In the early republic, a law of contract hardly existed. There was,

however, an institution called nexum, of which little can be said with
certainty except that it was a kind of loan so oppressive in character
that it could result in the debtor’s complete subjection to the creditor.
It was obsolete long before imperial times. The contracts of classical
law were divided into four classes: literal, verbal, real, and consensual.
The literal contract was a type of fictitious loan formed by an entry in
the creditor’s account book; it was comparatively unimportant and was
obsolete by Justinian’s day. The verbal contract required set words or
patterns of words to be spoken. The stipulatio was the most important
form of verbal contract, for it established a form in which any agreement
(provided it was lawful and possible) could be made binding by the
simple method of reducing it to question and answer: “Do you promise
to pay me 10,000 sesterces?” Originally it was absolutely necessary that
the words be spoken, but by Justinian’s day a written memorandum of
such a contract would be binding, even though, in fact, nothing at all
had been spoken.
If an agreement was not clothed in the form of a stipulation, it must,
to be valid, fall under one of the types of real or consensual contracts.
A real contract was one requiring that something should be transferred
from one party to the other and that the obligation arising should be for
the return of that thing. Real contracts included loans of money, loans
of goods, deposits, and pledges. Consensual contracts needed nothing
except verbal or written agreement between the parties, and though
there were only four such contracts known to the law, they were the most
important in ordinary life—sale, hire of things or services, partnership,
and mandate (acting upon instructions). In Justinian’s day there was a
further principle that in any case of reciprocal agreement, such as an
agreement for exchange (but not sale), if one party had performed, he
could bring an action to enforce performance by the other. In addition to
the foregoing contracts, a few other specific agreements were recognized
as enforceable, but the general recognition of all serious agreements as
binding was never achieved by the Romans.
Quasi-delict covered four types of harm, grouped together by no
clearly ascertainable principle. They included the action against an
occupier for harm done by things thrown or poured from his house
into a public place and the action against a shipowner, innkeeper, or
stablekeeper for loss caused to customers on the premises through theft
or damage by persons in his service.
Quasi-contract embraced obligations that had no common feature

save that they did not properly fall under contract, because there was
no agreement, or under delict, because there was no wrongful act. The
most noticeable examples were, first, negotiorum gestio, which enabled
one who intervened without authority in another’s affairs for the latter’s
benefit to claim reimbursement and indemnity, and second, the group
of cases in which an action (condictio) was allowed for the recovery by
A from B of what would otherwise be an unjustified enrichment of B at
A’s expense, such as when A had mistakenly paid B something that was
not due (condictio indebiti). This notion of unjust enrichment as a source
of legal obligation was one of the most pregnant contributions made by
Roman law to legal thought.
The Law of Succession

The law of succession is one of the most complex areas of Roman
law. Any Roman citizen who was of age could make a will, but several
very formal requirements had to be met for the will to be valid. The first
requirement was the appointment of one or more heirs. An heir, in the
Roman sense of the term, was a universal successor; that is, he took over
the rights and duties of the deceased (insofar as they were transmissible
at all) as a whole. On acceptance, the heir became owner if the deceased
was owner, creditor if he was creditor, and debtor if he was debtor, even
though the assets were insufficient to pay the debts. It was thus possible
for an inheritance to involve the heir in a loss. Until Justinian’s day this
consequence could be avoided only by not accepting the inheritance,
though certain categories of heirs could not refuse. Justinian made one
of his most famous reforms by providing that an heir who made an
inventory of the deceased’s assets need not pay out more than he had
received. Freedom of testation, furthermore, was not complete: a man
was obliged to leave a certain proportion of his property to his children
and in some cases to ascendants and brothers and sisters.
With regard to intestate succession, or succession without a will,
those first entitled in early times were the deceased’s own heirs—that
is, those who were in his potestas or manus when he died and who were
freed from that power at his death. Failing these heirs, the nearest agnatic
relations (relations in the male line of descent) succeeded, and, if there
were no agnates, the members of the gens, or clan, of the deceased
succeeded. Later reforms placed children emancipated from potestas on
an equal basis with those under potestas and gradually gave the surviving
spouse (in marriage without manus) greater rights of succession. By
Justinian’s day the system had evolved as follows: descendants had the
first claim, and failing these heirs, came a composite class consisting of
ascendants, brothers and sisters of full blood, and children of deceased
brothers and sisters. Next came brothers and sisters of the half blood
and, finally, the nearest cognates (relations in the female line). Husband
and wife were not mentioned, but their old rights were kept alive in the
absence of any of the preceding categories. Justinian also gave a “poor”
widow a right to one-quarter of her husband’s estate unless there were
more than three children, in which case she shared equally with them. If,
however, the heirs were her own children by the deceased, she received
only a ususfructus (life interest) in what she took.
The Law of Procedure
The earliest law suits (legis actiones) were conducted orally in two
stages: a preliminary one before the jurisdictional magistrate, in which
the issue was developed; and then the actual presentation of evidence
to the judex, or judge. The first stage required that set forms of words
be spoken by the parties and, sometimes, by the magistrate. The parties
making an assertion of ownership, for instance, would grasp the thing in
dispute and lay a wand on it, after which the magistrate would intervene
and say, “Let go, both of you.” So formal was the procedure that a
plaintiff who made the slightest mistake lost his case. For the second
stage, before the judex, there were no formal rules. However, the plaintiff
had the burden of proof, was responsible for physically producing the
defendant in court and, often, for carrying out the sentence.
Under new procedures developed in the 2nd and 1st centuries BCE,
the issue at the magisterial stage was formulated in written instructions
to the judex, couched in the form of an alternative: “If it appears that the
defendant owes the plaintiff 10,000 sesterces, the judex is to condemn the
defendant to pay the plaintiff 10,000 sesterces; if it does not so appear,
he is to absolve him.” A draft of these written instructions was probably
prepared for the plaintiff before he came into court, but there could be
no trial until it was accepted by the defendant, for there was always a
contractual element about a lawsuit under both the new and the old
systems. Pressure, however, could be exercised by the magistrate on a
defendant who refused to accept instructions that the magistrate had
approved, just as a plaintiff could be forced to alter instructions that
the magistrate had disapproved, by the magistrate’s refusal to otherwise
give the order to the judex to decide the case.
In late republican times, still another system developed, first in the

provinces, then in Rome. Under the new system the magistrate used
his administrative powers, which were always considerable, for the
purpose of settling disputes. He could command: thus if one person
brought a complaint against another before him, he could investigate
the matter and give the order he thought fit. As imperially appointed
officers superseded republican magistrates, this administrative process
became more common. The result was that the old contractual element
in procedure disappeared as did the old two-stage division. Justice was
now imposed from above by the state—not, as originally, left to a kind
of voluntary arbitration supervised by the state.
2.4.5 The Contributions of Roman Law

The civil law tradition is a composite of several distinct sub-
traditions, with separate origins and developments in different periods
of history. The oldest sub-tradition is directly traceable to the Roman
law as complied and codified under Justinian in the sixth century A.D.
Although the rules actually in force have changed, often drastically,
since 533, the first three books of the Institutes of Justinian (of Persons, of
things and of Obligations) and the major nineteenthcentury civil codes
all deal with substantially the same set of problems and relationships,
and the substantive area they cover is what a civil lawyer calls “civil
law.” The belief that this group of subjects is a related body of law that
constitutes the fundamental content of the legal system is deeply rooted
in Europe and the other parts of the world that have received the civil
law tradition, and it is one of the principal distinguishing marks of what
common lawyers call the civil law system.
The Corpus Juris Civilis of Justinian was not restricted to Raman Civil
Law. It included much that had to do with the power of the emperor, the
organization of the empire, and a variety of other matters that lawyers
today would classify as public law. But the part of Justinian’s compilation
that deals with Roman Civil Law is the part that has been the object of
the most intensive study and has become the basis of the legal systems of
the civil law world. With the fall of the Roman Empire, the Corpus Juris
Civilis fell into disuse. The invaders applied cruder, less sophisticated
versions of the Roman civil law to the peoples of the Italian Peninsula.
The invaders also brought with them their own Germanic legal customs.
The customs of the Germanic tribes stated that the law of a person’s
nationality followed him wherever he went. They applied their customs
to themselves but not to those they had conquered. Even so, a fusion of
some Germanic tribal laws with indigenous

roman legal institutions did begin to take
place in parts of Italy, Southern France and Hints
the Iberian Peninsula. Over the centuries The Roman
this produced what still referred to as a Civil Law and the
“vulgarized” or “barbarized” Roman law. works of the Glossa-
As light returned to Europe, as Europeans tors and Commen-
regained control of the Mediterranean called tators became the
the Renaissance began, an intellectual and basis of the com-
scholarly interest in law regained. What civil mon law of Europe,
lawyers commonly refer to as “the revival of which is actually
called the jus com-
Roman law” is generally conceded to have
mune by legal his-
had its beginning in Bologna, Italy late in the
torians. There was a
eleventh century. It was at Bologna that the common body of the
first modern European University appeared, law and of witting
and law was a major object of study. But the about law, a com-
law that was studied was not the barbarized mon legal language
Roman law that had been in force under and a common
the Germanic invaders. Nor the body of method of teaching
the rules enacted or customarily followed and scholarship.
by local towns, merchants’ guildes, or petty
sovereigns. The law studied was the Corpus
Juris Civilis of Justinian.
Within a short time, Bologna and the other universities of northern
Italy became the legal center of the Western world. Men came from all
over Europe to study the law as taught in the Italian universities. The law
studied was the Corpus Juris Civilis, and the common language of study
was Latin. There was a succession of schools teaching the proper way
to study and explain the Corpus Juris Civilis. Of special prominence,
for both their views of the law and their styles of scholarship, were the
groups of scholars known as the Glossators and the Commentators.
They produced an immense literature, which itself became the object
of study and discussion and came to carry great authority. Those who
studied in Blolga returned to their nations and established universities
where they also taught and studied the law of the Corpus Juris Civilis
according to the style of the Glossators and Commentators.
With the rise of the nation state and the growth of the concept of
national sovereignty, particularly from the fifteenth century and with the
demise of the Holy Roman Empire as anything but a fiction, and the age
of the jus commune of a common law of Europe waned, and the period
of the national law began. In some part of Europe (e.g. Germany), the
Roman Civil Law and the writings of the Belgians scholars were formally
“received” as binding law (civil lawyers use the term “reception” to sum
up the process by which the nation - states of the civil law world came to
include the jus commune in their national legal systems) in other parts
of Europe the reception was less formal; the Corpus Juris Civilis and the
words of the Glossators and Commentators were received became of
there value as customary law or because of their apple as intellectually
superior system. But, by one means or another, Roman Civil law was
received thought a large part of Western Europe, in the nations that are
now the home of the civil law tradition.
2.5 THE TRANSFORMATION OF THE DIGEST

AND CANON LAW
The Romans left two great monuments to the European peoples
long after their political and military dominance had faded into memory.
The first was their remarkable civil engineering infrastructure of roads,
bridges, aqueducts, baths, and public buildings. The second was their
legal system. Roman law has survived for over two thousand years. Its
use has ebbed and flowed. It was a living, vital legal system from the
first century B.C. until the sixth century A.D. During the early part of the
sixth century, Emperor Justinian decided to revitalize and purify Roman
law by effecting a massive codification. Between 529 and 534, a group
of lawyers and civil servants produced a comprehensive codification
of more than six centuries of legal learning. The principal parts of
this codification- known since the sixteenth century as the Corpus
Iuris Civilis-consisted of the Institutes, designed to be an elementary
textbook of Roman legal principles for use in law schools; the Digest, a
compilation of legal writings by the classical jurists; and the Code and
the Novels, compilations of imperial enactments and bureaucratic law.
Of these three, it was the Digest, which contained the overwhelming
amount of Roman private law and virtually all of the Roman legal
theory that survived.
During the centuries that followed the sixth century codification and
the increasing isolation of the residual empire now based in the Greek
East, Roman law continued to play an important role in the developing
legal systems of early medieval Europe, but it was Roman law as known
from pre-sixth century sources, primarily the Theodsian Code, and from
the actual practices then common. The learning of the Digest was hardly
known at all from the British Channel to the Danube River. During the
eleventh and twelfth centuries, a great deal of interest in law in general-
and in Roman law in particular-began to arise in Northern Italy. This
increase in interest in things legal was immensely accelerated by two
things: the composition of a coherent, scholastic text of canon law by a
monk, Gratian, and by the “rediscovery” of a sixth century manuscript
of the Digest. The combination of Gratian’s Decretum (as it was known)
and the newly found Digest manuscript provided the two fundamental
texts needed to foster the rebirth of a legal profession in western Europe,
the rise of university law schools, and the growth of medieval legal
systems throughout Europe, which, of course, are the progenitors of our
modern systems of civil law.
The history of the rediscovery of the Digest and the role of Roman
Law within this history, a part of what Charles Homer Haskins called
the “renaissance of the twelfth century `ìs far too large a subject for my
talk today. I want to focus on one, small point of legal and textual history.
Virtually every scholar of medieval law believes that the rediscovery
of the Digest manuscript was one of the most important events of the
high Middle Ages. To this event the rebirth of legal science is ascribed.
The manuscript is discovered, we are told, and suddenly Roman law
is reintroduced in all its glory to Western Europe. A marvelous vision,
perhaps, but is it accurate?
2.5.1 The Relation of Canon Law to the Roman Law

Various researchers have often presented the idea that the system
of the classical canon law was created as a result of the influence of the
Roman law and that the codification of canon law in the collection Corpus
iuris canonici was done according to the model of Corpus iuris civilis.
However, this position needs clarification because the canonical law was
not influenced by the Roman law which was in force in the eastern part
of the Roman Empire in the 6th century, but it was influenced by the
Roman law which, in a modified and transformed version began to be
studied in Continental Europe after the 11th century. The canonists often
used the Roman law in a larger extent than the biblical law or Germanic
customs. The canonists used the same fundamental theories in relation
to the nature and function of the law that were used by the civilists.
The scholastic method was common for both of them. The canonists
borrowed theories and methods from civilists as many as civilists did
from canonists. Actually, it was not only certain theories and methods
that the Medieval Roman law science borrowed from the classical canon
law but also a large number of legal notions, concepts and institutions.
One of the main distinctions between the Roman law and canon
law during 12th and 13th centuries consisted in the fact that the canon
law was the positive law of the Church whereas Roman law was not the
positive law of a particular entity. In Western Europe the Roman law
formulated in Justinian’s Codification was considered to be an ideal law,
a written personification of reason, a ratio scripta, whose principles had
to regulate legal issues everywhere, both in the religious and secular
sphere. Lawyers approached Justinian’s Codification with the same
respect and dedication as the theologians did with the Bible or as the
scholastic philosophers approached Aristotle. Although the emperors of
the Holy Roman Empire of the German nation aspired that they were
the heirs of the ancient Roman emperors whose innumerable laws were
not influenced by Roman law. The norms and institutions of the Roman
law gained the status of positive law in the Empire only when through
the legislation or lawyers’ interpretation became part of the Catholic
Church’s positive law. Although the Roman law gained the epithet of
‘servant of the church law’, at the same time it played the role of ‘servant’
of the law of kings and the newly created cities.
Perhaps the major distinction between Roman law and canon law
of the 12th and 13th centuries was the fact that Roman law in general
used to be considered as complete and unchangeable and as such it
needed reinterpretation and did not need changes. On the other hand
canon law (although its origin was from the past), was not complete;
on the contrary, it was continuously being remade. According to the
canonists’ opinion, it had the characteristic of being able to undergo
organic development and continuous refinement in the course of time.
This feature of canon law gave it somehow irregular image; this made
it a less attractive intellectual discipline in comparison to Roman law.
However, the existence of the temporal dimension, the movement from
the past towards the future, gave the canon law an element of dynamism,
such an element that even nowadays continues to be a fundamental
characteristic of contemporary western legal systems.
The Medieval civilists sought solution in canon law for a large
number of problems that Justinian’s Codification did not hinge on or
did it only superficially. Apart from the civil law of Continental Europe,
some solutions offered by canon law were accepted also by the English
common law. On the other hand, in order to explain the legal norms
which regulated church functioning and Christian life, also the canonists
employed Roman law concepts and institutions in the form that was
interpreted and modified by the Medieval civilists. In this way, they
combined two great traditions: Roman law and Christianity.
While Roman law texts dealt mainly with the analysis of the
situations when certain legal remedies could be used, the moral principles
of canon law could not depend on the fact whether or not Roman law
had stipulated any legal remedies in case of their violation. Therefore, in
cases when canonists were faced with issues that had not been regulated
by Roman legal texts, they formulated new norms and legal remedies.
Such norms were accepted in civil law in certain cases. For example,
while discussing about ownership, the canonists came to the conclusion
that a person may be allowed to use somebody else’s thing in cases of
necessity. Roman law did not have general principles for this, although
some Roman legal texts allowed the use of another person’s thing in
discrete situations. A person was allowed to enter in another person’s
land in order to look for an escapee. In certain situations a person would
be allowed to ruin somebody else’s thing in order to protect his life or
property: for example, a person would be allowed to cause damage to
his neighbour’s house in order to save his house from fire. The norms of
the canon law allowed the captain of a ship to throw the cargo into the
sea in order to save the ship. The passengers whose goods were thrown
into the sea could request compensation from the passengers whose
property had been saved. These examples show that the norms of canon
law in this area were precursors of contemporary law of the sea.
Another example of acceptance of the principles of canon law in
civil law is the principle rebus sic stantibus, according to which in case
of the existence of altered and unforeseen circumstances, the promise
could be broken. This principle did not have its equivalent in the Roman
law of contracts. Gratian’s Decretum refered to a text written by St.
Augustine in which he analyzed an issue raised by Cicero. A person
may give his sword to another person to keep it, whereas the receiver
promises to return the sword when requested by the owner. However,
if the owner in the meantime had experienced a grave mental disorder
or if he intended to use the sword in order to cause damage to another
person, should the promise be kept? St. Augustine’s answer was that
in these circumstances the promise need not be kept. The principle of
rebus sic stantibus from canon law was transferred to civil law by the
famous Italian post-glossator Baldus de Ubaldis.
2.6 GLOSSATORS AND COMMENTATORS

Irnerius, a professor of grammar at Bologna, studied the Digest
intensely and became the founder of a new jurisprudence. His pupils
were Martinus, Bulgarus, Jacobus, and Hugo. These jurists are
known as Glossators. They wrote short comments on the Digest in
marginal notes (glosssae). Their purpose was to eliminate apparent
contradictions in the text of the Digest. Their contribution to the legal
literature was titled Summae or Distinctiones. The last glossator,
Accursius, published a Glossa Ordinaria incorporating the accumulated
doctrine of his predecessors. The glossators laid the foundation for a
better understanding of the Justinian legislation by subsequent jurists.
Their treatment of the law was purely academic and the living law was
completely neglected. The Corpus Juris Civilis came to be regarded as
the Ratio Scripta (written reason) and as the law in force in the Holy
Roman Empire.
New legal scholarship emerged in Perugia (13th to 15th century).
Bartolus and Baldus published coherent treatises on Roman law in
combination with the study of contemporary statutes and Canon law.
These jurists and their pupils are known as the Post-glossators or
Commentators. They placed law on a truly scientific basis and founded
the modern legal science. The fields of commercial law, criminal law,
and law of conflicts, attracted the attention of the postglossators and
were elevated into the positions of independent branches of law.
Glossators and commentator are characterized by a typical medieval
way of thinking. They lacked historical sense; they ignored the historical
fact of interpolations, and regarded Roman law as eternal truth. Their
main concern was the harmonization of conflicting passages by the
application of hair-splitting techniques. Yet, they are the founders of the
new legal science.
Humanists
A humanist movement spread throughout Europe in the seventeenth
century. The founders of this movement were mostly Italian and
French jurists at the University of Bourges (Jacques Cujas, surnamed
Gujacius, 1522-90; Hugo Donneau, surnamed Donnelus, 1527-91). The
humanists exhibited an overwhelming interest in classical antiquity
and proceeded to the reconstruction of the ancient Roman legal system
with the help of original manuscripts and Byzantine authorities. They
were philosophically inclined and in their analysis of the law applied
juridical methods of interpretation rather than scholastic approaches.

The humanists, by stressing the period of evolution of the Roman law,
laid the ground for historical research. But the Justinian legislation
obscured the law of ancient Rome and the living law was neglected. The
―elegant jurisprudence‖ of this school remained a purely intellectual
phenomenon.
Humanism failed in Germany and Italy. The authority of the
commentators was deeply rooted and Roman law was actually applied
as expounded by these jurists. Thus there was need for practical books
on Roman law rather than interest in intellectual acrobatics. The
Parlements (superior courts) in France shaped the law on a practical
basis. In Germany, courts and writers developed the usus modernus
Pandectarum (modern use of the Pandects).
Natural Law School

Expounders of a revived natural law (Hugo Grotius, 1583-1645,
Puffendorf, Thomassius), displayed a critical attitude toward positive
law. Roman law came to be regarded as the positive law of ancient Rome.
Natural law was defined as a body of principles underlying human
nature and discoverable by the exercise of Reason. Emphasis was focused
on ancient Greek philosophy, certain principles of the Roman law, and
on the writings of St. Thomas Aquinas and St. Augustine. Eventually,
the movement led to the growth of Protestant rationalism. Arguments
drawn from the interaction of jus civile and jus honorarium necessitated
study of Roman law in depth and helped to preserve Romanist thinking.
Natural law doctrine became a closed system based on rational grounds;
thus it led to the idea of codification.
Historical School (Pandectists)

According to the doctrine of the historical school (Gustav Hugo,
1764-1844; Savigny, 1779-1861), law is the product of the spirit of the
people. It is not a revelation of eternal truth but the result of a gradual
evolution in accordance with social facts. Ironically, the followers of the
historical school devoted their efforts to the reconstruction of Roman law
and to the discovery of its true character in all stages of development. A
subdued antinomy (the past v. the present) is apparent.
The historical school is credited with the production of systematic
treatises on Roman law. The lasting contribution of the school is
the development of generalizations, which prove helpful in the
reconstruction of ancient legal systems and for the understanding of
contemporary civil law. Its dogma led to comparative research, reform,

and modern codifications.
2.7 REVIVAL OF ROMAN LAW

Legal systems have often borrowed laws or ideas from other legal
systems. For example, Solon’s laws for Athens in the sixth century B.C.
were influenced by the legal codes of other Greek city states. Much
of the English Statute of Frauds of 1677 was copied from the French
Ordonnance de Moulins. The 1960 Civil Code of South Korea borrowed
extensively from German law. Perhaps the most momentous borrowing
occurred when European lawyers transplanted into medieval society
the ancient Roman law contained in Justinian’s Corpus Juris Civilis.
A Brief History of the Medieval Revival of Roman Law in Western
Europe-Our historical sketch focuses on the period from the middle of
the eleventh century to the end of the fourteenth century. Law in the
Mid-Eleventh Century-In the mid-eleventh century, Europe had no
written, organized, and comprehensive legal system. Law was largely
a matter of social custom, which is mainly unwritten. Even the written
law codes were primitive. They consisted largely of penalties for various
forms of violence and contained little contract, commercial, or property
law.
Good examples are found in the written codes promulgated by
various Lombard kings from 643 to 755 A.D. and still in effect in mid-
eleventh century Italy. The code issued by King Rothair (or Rothari) in
643 A.D. contains 388 titles. Titles 1 through 152 and titles 277 through
358 prescribe in very detail penalties for offenses we would characterize
as crimes or torts. Title 48, for example, sets the penalty for gouging out
a freeman’s eye, while title 50 prescribes a different penalty for cutting
off a freeman’s lip. The penalty for cutting off a freeman’s index finger
(title 64) is sixteen solidi, whereas the penalty for cutting off a freeman’s
middle finger (title 65) is only five solidi. Rothair’s code contains no
contract or commercial law except for titles 245 through 252, which deal
with the pledge of collateral for a debt (what we would call a possessory
security interest). A creditor could not take a pledge of collateral until
he had three times demanded payment and had not been paid. This is
not the kind of law that stimulates secured lending. The Laws of King
Grimwald (668 A.D.) contain no contract or commercial law. The Laws
of King Liutprand (713-35 A.D.) contain 153 titles; of these, twelve deal
with pledges of collateral, and only three deal with other commercial
matters. The Laws of King Ratchis (745, 746 A.D.) contain fourteen titles;
two of these titles provide evidentiary rules concerning pledges and
sales. The Laws of King Aistulf (750, 755 A.D.) contain no contract or
commercial law.
Throughout Western Europe in the eleventh century, many people
were governed by written law codes issued by Germanic rulers, but
based on ancient Roman law. Some of these codes were a bit more
sophisticated than the Lombard codes. In the Germanic kingdoms
that replaced the Western Roman Empire in the fifth century, Roman
law survived to some extent and was incorporated into written codes;
however, what survived was a small part of the legal system developed
by the ancient Romans, and even that small part was retained in a crude
and simplified form. Historians thus refer to it as “vulgar Roman law.”
A good example of vulgar Roman law is the Lex Romana
Visigothorum (or “Breviarium”) promulgated in 506 A.D. by Alaric II,
King of the Visigoths. This code was probably intend ed only for the
Visigoths’ Roman subjects but may have been applied to Visigoths as well.
Either way, the code governed a vast majority of the people in Visigothic
territory, as the Visigoths were far outnumbered by the Romans. The
Breviarium was based largely on the Roman Theodosian Code, a
collection, completed in 438 A.D., of imperial laws issued since the time
of Constantine and concerned to a large extent with matters of imperial
government rather than private law such as contract or commercial law.
The Breviarium also included some writings of the Roman jurist and
legal scholar Paul, and an abridgment of Gaius’ Institutes, a hornbook
for Roman law students. Therefore, the Breviarium was an abridgment
of an abridgment. Peter Stein suggests that the Breviarium became the
main source of Roman law in Western Europe from the sixth century to
the eleventh.
The Germanic codes, including those based on vulgar Roman law,
were primitive, partly because they were compiled by lawmakers who
had little legal learning, and partly because these lawmakers had very
limited aims. They assumed that the purposes of law were merely to
prevent violence and enforce customary social practices. Some New
Questions-By the twelfth century, assumptions about the purposes
of law had changed profoundly. A new class of intellectuals began to
think that new social practices could be developed, practices that would
not only prevent violence, but also give ordinary men and women
the opportunity to live truly good lives in a secular world outside the
monasteries. These new intellectuals began to ask three questions:

Philosophically, what kind of human can live a good life in this world?
Educationally, what kind of education does he need? Jurisprudentially,
what kind of laws does he need? Because these were the questions asked,
the major innovations of the “Renaissance of the Twelfth Century”
tended to be in the fields of philosophy, education, and law.
The third inquiry, regarding the kind of law that was needed, was
easily answered. Medieval polities needed law written in Latin and
comprehensive enough to regulate all the various aspects of societies that
were becoming increasingly complex. A special need existed for law that
could facilitate contractual exchange and thus promote a commercial
revolution, already underway, that promised to enhance the material
basis of a good life. And because the good life required the exercise of
moral virtue, medieval societies needed law that enforced the virtues of
good faith and fair dealing in private transactions.
Justinian’s Corpus Juris Civilis-One and only one existing body
of law could meet these needs. Justinian’s Corpus Juris Civilis was the
obvious choice for the wholesale legal borrowing that was necessary,
since there was neither enough time nor enough legal imagination to
construct complete legal systems from the ground up. The Corpus Juris
Civilis is a vast compilation of ancient Roman legal materials, arranged
and somewhat modified by a group of Byzantine professors and lawyers
appointed by Emperor Justinian. Work on the Corpus Juris began in
528 A.D. and was largely completed by 534 A.D. The Corpus Juris thus
provided a picture of Roman law as seen through a Greek lens many years
after the demise of the Western Roman Empire. The most important part
of the Corpus Juris is the Digest, which contains scholarly commentary
by Roman jurists and supplies the most detailed explication of Roman
private law. Most of this commentary comes from the period 100-250
A.D. and presents various and often conflicting positions on each legal
issue. The Corpus Juris also contains: the Institutes, a hornbook for
students based partly on Gaius’ Institutes; the Code, which includes
imperial statutes and other pronouncements of Roman emperors; and
the Novels, which added imperial pronouncements issued after the
publication of the Code.
In 554 A.D., after Justinian took Italy from the Ostrogoths, he put
his Corpus Juris into force as the law of Italy. After the Lombards ousted
the Byzantines, parts of the Corpus Juris were still used, but the Digest
disappeared. Fortunately, the Digest was rediscovered in Italy in the late
eleventh century; Justinian’s complete Corpus Juris was now available

to European lawmakers, and it met their most important needs. It
contained the world’s most detailed and comprehensive private law
written in Latin. It provided a relatively sophisticated body of contract
law and enforced the moral virtues of good faith and fair dealing.
An examination of Roman contract law reveals some serious defects,
but also indicates why contract law has been the most highly regarded
part of Roman law. The Romans had no general theory of contract. To be
enforceable, an agreement had to fit squarely within one of a few contract
types. The stipulatio was an oral contract formed when party A asked
party B whether he would promise to do something and B immediately
responded that he did so promise. Stipulatio could be used to promise
anything not prohibited by law. However, it had limited usefulness for
commercial exchange contracts. In the first place, the promise had to be
made in a face-to-face meeting of the parties, not in a letter delivered to a
distant party. Secondly, it was difficult and cumbersome to use stipulatio
for bilateral exchange contracts. Each party had to make a very detailed
stipulation, not only stating all of his duties, but also stating how those
duties were conditional upon the other party’s performance.
Each of the four “real” contracts were formed informally but only
when one party had delivered some tangible property to the other. Of
these real contracts, only pignus (pledge) had commercial importance.
A debtor transferred possession of property to his creditor as collateral
security for the debt. If the debtor paid the debt, the creditor was
obligated to return the pledged property. If the debt was not paid, the
creditor could sell the collateral, but was obligated to pay the debtor any
surplus of the sale proceeds over the amount of indebtedness. The three
other real contracts involved gratuitous transactions, usually between
friends.
In Roman contract law, the four “consensual” contracts were emptio
venditio (sale), locatio conductio (hire), societas (partnership), and
mandatum (mandate). Unlike the stipulatio, the consensual contracts
required mutual consent but no particular formal expression. Unlike the
real contracts, the consensual contracts could be purely executory, with
no prior delivery. In all consensual contracts, both parties were obligated
to act in good faith in every aspect of the transaction. There could be no
duress, fraudulent misrepresentation, or even fraudulent nondisclosure.
The mandate contract was formed if A gratuitously promised B, usually
a friend of A’s, to execute a commission given to him by B. This contract
was not useful in commerce because A’s performance of the commission

was gratuitous and not for a reward, and because A lacked any agency
power to create binding contracts between B and third parties. Nor
was the societas partnership contract commercially useful. Among
other things, a partner lacked the agency power to bind his partners
to contracts he formed with third parties, and the partners owed each
other only a minimum of obligations. The emptio venditio (sale) was
used for sales of specific goods or real property in exchange for a money
price and was a contract of great commercial importance. The contract
included an implied warranty by the seller that the buyer would have
quiet enjoyment of the thing being purchased (that the buyer would not
be evicted by someone with a better title). Various implied warranties
by the seller also existed to protect the buyer in the event of latent
qualitative defects in the thing being purchased. Protection against
mistakes in contracting was provided by a complicated set of rules that
made a sales contract unenforceable if there was some “fundamental”
mistake. Fundamental mistakes included mutual misunderstanding
concerning the specific thing to be sold and mutual mistake about the
materials with which the thing was made, but it was not always clear
which other mistakes counted as fundamental.
Like the contract for sale, locatio conductio (hire) was commercially
useful. It was a versatile contract that could be used for leases of goods
or real estate, service contracts, and virtually any bilateral agreement
involving a money price, so long as it was not a sale. The Law School
at Bologna-Justinian’s Corpus Juris, with its complex body of contract
law, could not be used to improve European legal systems until it was
understood. This long process of understanding began in earnest when
a man called Irnerius began teaching the entire Corpus Juris at Bologna
near the end of the eleventh century. Although Irnerius was merely a
private teacher and not an employee of any educational institution,
he soon began to attract students from all over Europe. In the twelfth
and thirteenth centuries, the private law schools of Irnerius and his
early successors at Bologna were transformed into an institutionalized
law school that was the leading center of legal studies in Europe. The
leadership of Bologna was due in large part to the fact that it taught
Justinian’s Corpus Juris, with increasing emphasis on the Digest, the part
of the Corpus Juris that was the most fruitful source of legal ideas. The
institutionalized law school at Bologna had one especially interesting
feature. Until it was taken over by the city in the late thirteenth or early
fourteenth century, the University of Bologna was a student corporation,
an amalgamation of student guilds, that controlled the professors. Each

time a professor was late for class or ended class before the closing bell,
the students fined him. If he did not cover all the material in the syllabus
by the end of the term, he was again fined by the students.
By the end of the twelfth century, the law school at Bologna taught
both Roman law and canon law and had an enrollment of at least 1000
students. Yet the school taught little, if any, royal law, municipal law,
customary law, or other primary source of local positive law. What the
school taught was legal method and an ideal law (Roman law and canon
law) containing general principles that could be applied to any area of
law in any part of Europe. Apparently, the students flocked to Bologna
because they knew what they needed in order to participate in the
development of new legal systems back home. There is thus justification
for Hastings Rashdall’s claim that in many respects, the work of the
law school at Bologna “represents the most brilliant achievement of
the intellect of medieval Europe.” The Bolognese model was copied by
new law schools that sprang up in the twelfth century (Modena, Pisa,
and Montpelier, for example) and thirteenth century (notably Naples,
Toulouse, Orléans, and Salamanca). Like Bologna, these new schools
taught Roman law and canon law but deemphasized or ignored local
law.
Glossators, Commentators, and Canonists-From the early twelfth
century to the middle of the thirteenth century, legal scholarship was
dominated by the “Glossators,” Irnerius and the teacher-scholars who
succeeded him at Bologna. In addition to Irnerius, some of the most
important Glossators were Bulgarus, Martinus, Bassianus, Placentinus,
Azo, and Accursius. The Glossators focused on mastering the text of
Justinian’s Corpus Juris, an important first step that had to be taken before
the Corpus Juris could be successfully used by medieval lawmakers.
The Glossators intensively studied and explained each fragment in the
text, interpreting difficult passages, providing cross-references to other
fragments dealing with the same issue, identifying conflicts between
different fragments, and trying to reconcile such conflicts.
From the late thirteenth century to the end of the fifteenth century,
the most important legal scholars were the “Commentators” (or “Post-
Glossators”), a group who taught at various law schools, not just Bologna,
and included influential scholars such as Cinus de Pistoia, Bartolus de
Saxoferrato, and Baldus de Ubaldis. The Commentators wrote broad
and systematic commentaries that attempted to apply Roman law
to the needs of medieval society in a practical way. They thus took a

significant step beyond the work of the Glossators, who had chiefly
been concerned with understanding and explicating Roman law. The
Commentators studied customary, feudal, royal, and municipal law and
were aware of the gaps in these systems. Many of these gap issues also
had not been addressed in Justinian’s Corpus Juris. The Commentators
therefore derived general principles from the Corpus Juris, canon law,
and the works of natural law philosophers such as Aristotle and Thomas
Aquinas, and then used these principles to suggest how the gaps in
contemporary positive law should be filled in order to make European
legal systems not only more complete but also more equitable. The
major achievement of the Commentators was showing how Roman law,
canon law, and moral philosophy could be used to improve European
legal systems.
The accomplishments of the canonists were as significant as
the work of the Glossators and Commentators. In medieval Europe,
canon law was important because the Church courts asserted a wide
jurisdiction over matters we now regard as secular. This jurisdiction
extended to marriage and the other sacraments, and to anything closely
related to sin or the welfare of human souls; it thus included marriage,
the termination of marriage, the legitimacy of offspring, the validity of
testamentary wills, contracts made under oath or requiring good faith,
usury, the manipulation of commercial markets, defamation, perjury,
homicide, theft, sexual misconduct, and the lawful times and conditions
of work. In the late eleventh century, Popes Gregory VII and Urban II
had issued many new canons in their attempt to reform the Western
Church, and by 1100 A.D. canon law consisted of a greatly enlarged but
disorganized and unsystematic mass of materials taken from the Bible,
works of the early Church Fathers, canons enacted by Church councils,
and papal decretals (letters announcing papal decisions on actual
cases). The needed systematization was provided by Gratian, a monk
who taught canon law at the monastery of San Felice in Bologna. About
1140 A.D., he published his Concordance of Discordant Canons, which
became known as the “Decretum” and was the first truly scholarly
study of canon law. In this work, Gratian reorganized the canonical
authorities and added his own comments, many of which were drawn
from Roman law. He also noted apparent conflicts in the authorities and
used a dialectical method in trying to reconcile them. Gratian’s Decretum
served as the basic guide to canon law for many centuries.
After the middle of the twelfth century, canon law scholars and
Roman law scholars worked in close cooperation. Canon law was
strongly influenced by Roman law. The procedural rules for ecclesiastical
courts were based in large part on Justinian’s Corpus Juris. The canonist
concept of marriage as a consensual union, based on mutual affection
and respect, came from Roman law. Canonist doctrine concerning
mistake as a ground for nullifying marriage was partly borrowed
from Roman doctrines of mistake in contracts of sale. Canon law also
allowed nullification of marriage contracts made under duress, and the
test for duress (consent induced by fear that a “constant” man would
not overcome) was taken from Justinian’s Digest. In turn, Roman law
scholars borrowed ideas from the canon law. For example, canon law
was the major inspiration for the gradually successful attempts by the
Glossators and Commentators to liberalize Roman law so that contracts
could be enforced even when they did not fit within any of the contract
types recognized by classical Roman law.
Spread of the Ius Commune-By the fourteenth century, the
combination of Roman law and canon law had become known as
the ius commune and had spread throughout a good part of Western
Europe. The reception of the ius commune was, of course, facilitated by
the fact that it was written in Latin, the common language of educated
Europeans. Equally important was the legal education of the men who
filled new positions as judges, advocates, and assistants to secular and
ecclesiastical rulers; most of these new legal professionals had been
trained in law schools that concentrated on Roman and canon law. The
ius commune was thus the law that the new lawmakers knew best.
Canon law had an easy victory. It was the primary source of law in
Church courts throughout all of Catholic Europe, including the British
Isles. The spread of the new Roman law based on Justinian’s Corpus Juris
was slower, and the pace varied from one region to another. The new
Roman law was quickly received in Italy, the southern part of France,
and the Iberian peninsula. In the northern part of France, customary
law continued to prevail, but by the thirteenth century, Roman law had
become an important supplement. In the German principalities of the
Holy Roman Empire, Roman law was not received to any great extent
until the late fifteenth and early sixteenth centuries. But when it occurred,
the reception was massive. In Scotland, Roman law was established as
the primary gap filler in the sixteenth century. However, Roman law
never really took hold in the English royal courts (except for chancery
and admiralty courts).
We must remember that nowhere in late medieval Europe were

Roman law and canon law the only kinds of law being used. In each
geographical region, there were a number of legal systems, each with
its own law and its own courts: canon law, feudal law, manorial law,
royal law, municipal law, and the law merchant. And everywhere, social
custom was still a recognized source of law. The primary role of the ius
commune was to fill the huge gaps in the local legal systems. Roman
law and canon law were also used in interpreting existing local law,
and provided standards by which courts determined whether a local
custom was unreasonable and thus legally invalid. In these ways the
ius commune gradually shaped the legal systems that ruled most of
Western Europe until they were replaced by the massive codifications
of the eighteenth and nineteenth centuries. Reasons for the Success of
the Revival-Why was the medieval revival of Roman law successful
in the sense that it substantially enhanced the quantity and quality of
law in Western Europe? The following summary will provide a partial
answer to our question and will focus on factors that have important
implications for contemporary legal education. The medieval revival of
Roman law involved a massive transplant into medieval societies of a
legal system that had been developed in ancient times before the fall
of the Western Roman Empire. We will therefore begin by identifying
some factors that are essential for the success of any legal transplanting
or “borrowing” enterprise.
For borrowing to even occur, lawmakers who work within one legal
system must be aware of and receptive to legal ideas and intellectual
concepts that come from outside that system (factor 1). The external
ideas and concepts might be found in the contemporary legal system
of a foreign country. They might be found in the legal history, the legal
past, of the borrowing system itself. They might be found in some non-
legal discipline such as philosophy, economics, or sociology. Whatever
their source, these external ideas and concepts must be studied and
understood before they can be truly borrowed and not caricatured
(factor 2).
If the enterprise of borrowing is to succeed in improving the
borrowers’ legal system, some additional factors are required. The ideas
being borrowed will probably have to be modified somewhat if they are
to fit the borrowing legal system and its social and cultural context. The
borrowers will thus have to perform a critical analysis of the external
ideas, identify their strengths and weaknesses and eliminate, or at
least mitigate, the weaknesses (factor 3). In order to determine what
is a strength or weakness in the external ideas, the borrowers must

consider contemporary social and economic circumstances in their own
society (factor 4). They must also ask whether a particular external idea
would promote the purposes or goals of their own legal system (factor
5). Finally, legal education will have to be structured so that future
generations of lawyers working within the borrowing legal system will
be able to use the newly borrowed ideas--and ideas that may be suitable
for future borrowing--in ways that improve that legal system (factor
6). Law schools must therefore train their students to do all the things
involved in factors 1 through 5. In the remainder of Part II, we will see
that each of the factors necessary for a successful legal transplant was
present in the medieval revival of Roman law. Indeed, all six factors
were present to a high degree.
Receptive Awareness of Legal History and Comparative Law
(Factor 1) Factor 1 in our list of requirements for successful borrowing is
a receptive awareness of ideas that come from outside the legal system
that is to engage in borrowing. The medieval revival began with an
awareness of legal history. With the rediscovery of Justinian’s Digest
in the late eleventh century, the entire Corpus Juris became available
to legal scholars. Almost immediately, Irnerius and his Glossator
successors at Bologna made their students and other law professors
aware of Justinian’s compilation of ancient Roman law, a body of law
that had been developed more than eight centuries earlier, and after the
fall of the Western Roman Empire had been applied only in “vulgar” and
mutilated form. Medieval lawyers not only borrowed materials from
a historically prior legal system, they also engaged in what we would
call comparative law, the study of contemporary legal developments in
other countries and other legal systems. Law professors and lawmakers
throughout Europe borrowed ideas from Italian Commentators,
such as Bartolus de Saxoferrato and Baldus de Ubaldis. The Italian
Commentator, Cinus de Pistoia, was heavily influenced by the French
legal scholars, Jacques de Révigny and Pierre de Belleperche. We have
already seen that secular courts and professors of Roman law borrowed
ideas from canon lawyers, who in turn derived much of their canon law
from Justinian’s Corpus Juris.
Receptive Awareness of Other Disciplines: Teleological Natural
Law Philosophy (Factors 1 and 5)-Factor 1 in our list of requirements
for successful borrowing can be satisfied by a receptive awareness of
ideas found in non-legal disciplines. Medieval lawyers were in touch
with other disciplines and borrowed ideas from them, especially from
philosophy. Lawyers were particularly interested in moral and political

philosophy, and here the most influential tradition was natural law
theory. Medieval notions of natural law were drawn from Cicero,
Justinian’s Digest, Aristotle, and Aquinas. A key idea found in all of
these sources is that human conduct should be regulated by norms that
are both derived by means of rational reason and consistent with human
nature. Although natural law theory is rationalistic, it is also aware of
both the potentialities and limitations of the human animal. This rational
but not unduly optimistic approach produced helpful answers to all
three of the questions posed by twelfth century intellectuals: What kind
of human can live a good life in this world? What kind of education does
he need? What kind of laws does he need? Natural law theory provided
a teleological answer to the first question. In natural law teleology,
everything is evaluated according to how well it fulfills its telos, its end
or purpose. Aristotle had said that the natural end of a human being
was to live well, rationally, and virtuously. Thus, the kind of human who
can live a good life in this world is a human who lives rationally and
virtuously. Because the purpose of educational institutions is to enable
people to live good lives, natural law teleology provided an answer to
the second question: humans need education that teaches them how to
live rationally and virtuously.
Natural law theory gave a similar answer to the third question.
Humans need laws that help them live good lives. The purpose of
positive law, according to Aquinas, is to facilitate good lives for all
citizens (the “Common Good”). The law should therefore help people
to live rationally and virtuously. Legal rules and penalties can perform a
moral education function that supplements familial training by teaching
citizens to treat others fairly, without coercion, deceit, or exploitation. In
suggesting that the purpose of law was to help people live good lives,
natural law theory provided medieval lawmakers with a teleological
criterion that could be used in evaluating the various rules of ancient
Roman law. Medieval lawmakers were thus able to satisfy factor 5 in
our list of requirements for successful borrowing: lawmakers in the
borrowing system must judge particular ideas in the borrowed system
by asking which of these ideas would promote the purposes or goals of
their own legal system.
The teleological approach of natural law theory was used not only
to identify the general purposes of law, but to resolve particular legal
issues as well. In the field of contract law, the obligations of parties to
a contract depended on the immediate end or purpose of the type of
contract the parties formed. The purposes of the marriage contract, for
example, were the good of the offspring and the mutually beneficial
association of the two spouses. Therefore, the contractual duties of the
spouses were determined by these purposes. A second example also
involves contract law. The Commentators Bartolus de Saxoferrato and
Baldus de Ubaldis suggested that, although a sales contract cannot be
avoided for mistake about the “accidental” form of the thing to be sold,
such a contract can be avoided for mistake about the “substantial” form
of the thing, and the substance (or essence) of a thing may depend on the
human purpose it serves.
2.8 THE ATTRIBUTES OF LAW IN THE EARLY

LEGAL SYSTEMS
The Greek legal system and the Roman legal system. It outlines the
main features of the early legal systems and the effects of the divine-
origin of the Mesopotamian legal system.
2.8.1 Definition of Law under the Babylonian Legal

System
To Emperor Hammurabi, why did his subjects have to respect the
principles in his Code? Can you guess the reason? Emperor Hammurabi
sought to get legitimacy of his Code by invoking the power of God.
He presented himself to his subjects as an agent of God on earth. He
advocated that he was an elect of God. He, thus, argued that whatever he
did including the making of his Code was done under the guidance and
instruction of God. So people had to obey the rules in his Code because
they were not the expressions of his wish, but commands revealed to the
people by God through him. Do you think that Emperor Haliselassie I of
Ethiopia relied on the same theory?
Can you guess the reason why Emperor Hammurabi argued that
the sources of his laws were God? The Emperor chose this basis of
legitimacy (acceptability) of his legal system as a whole since he thought
that taking God, as a source of legitimacy was the most powerful of all
basis of rule. He could argue that people had to observe the legal rules
on the basis of solidarity. He could have invoked customary rules or
habits. He could have invoked popular sovereignty. He could invoke
some other sources of legitimatizing his legal system. Instead he selected
God as the basis of his system since he believed that it would be difficult
for his subjects to question the power of God.
Can you tell the effects of preaching on the part of emperors in
Mesopotamia that his legal system was created and maintained by God?
In the first place, Emperor Hammurabi easily secured obedience to his
laws. In the second place, religion was accepted as the valid source of
laws. Third, the theory of divine power served as the stabilizing factor.
Mesopotamians did not dare to change their laws; they came to believe
that what they had not created they could not change. The fourth effect
of the propagation of the divine-origin of laws in Mesopotamia was the
empirical feature of the law, which means laws lacked general principles
and coherent arrangements as well as distinctions and sub-distinctions.
Can you point out the reasons for the Babylonian legal system
demonstrated continuity? Why such legal system survived for more
than eleven centuries? One factor for the high degree of stability of the
system could be the religious basis of the same. Babylonians attributed
the source of law to God; what God made human beings could not
change. The second factor could be the conservative nature of ancient
societies. In the third place, the geographical conditions of the area
produced such stability and sense of regularity. Each year, the floods
came and inundated the fields so that their crops would be harvested
regularly, and the Mesopotamians desired to reflect such regularity of
events in their social organization, means they desired a stable legal
system. In sum, the key feature of the Mesopotamian legal system is its
religious conception.
2.8.2 The Greek Legal System

Features
To the Greek, for law to be valid, it had to be tested in light of two
cumulative tests: the law should be adopted by the vote of popular
assembly composed of, for example, in the case of Athens, male adult
Athenians (the law so enacted was called positive law) and the law so
enacted had to be consistent with the principles of natural law. The
Greek, however, faced contradictions between the two criteria. By its
nature, positive law was thought to be particular, mutable and temporal.
Positive law means a law created by human beings. Positive law was
time and place specific. Positive law was thus relative to time, place
and community. On the other hand, natural law principles was taken
as universal (applicable to all human beings regardless of where they

live), eternal (not time bound) and immutable (not subject to change).
Generally, natural law was presented as absolute while positive law
was approached as relative. The contradiction between positive law
and natural law lies in these features of the two. The Greek faced
contradiction since they accepted two quite different theories at the
same time and endeavored to implement those theories. Natural law
theory of the Greek demanded that the laws be maintained unchanged
while positive law necessitated changes in the laws. In other words, the
issue was the tension between continuity and change.
The Greek experienced another contradiction. Natural law dictated
that all human beings had to be treated equally while positive law of the
Greek allowed the institution of slavery, which rested on the assumption
that some human beings were less equal, in principle, than others. The
Greek never solved this latter contradiction.
How did the Greek attempt to maintain a balance between the
dictates of natural law (continuity) and the dictates of positive law
(change)? They used three methods to ease the contradiction. One
approach was to subject their law-making process to a screening. Any
male adult Athenian citizen could initiate laws. These proposed laws
would be examined by a city council. When the city council approved
the proposed laws, it passed on to the popular assembly. The popular
assembly was a collection of male adult Athenian citizens, as the Greek
believed in direct popular representation. The second mode of checking
the existence of the balance between change and continuity was taking
two possible actions against a citizen who deliberately proposed unjust
laws. A citizen who proposed unjust laws would be condemned,
depending on the gravity of the situation, to exile, means forced to leave
the territory of Athens. The second course of action was to allow him to
live in his city-state but his right to participate in the popular assembly
would be taken away. The third method of accommodating change
and continuity was the creation of a special body named Nemothia
responsible for changing the positive law whenever the situation
required so.
Can you explain why the Greek subjected the laws issued by the
popular assembly to higher principles, natural law principles? Why did
the Greek decide to test positive law in light of higher principles? No one
is certain about the justification for invoking the principles of natural
law. However, a couple of speculations may be offered. One is that the
Greek were given to philosophical thinking. The other is that the Greek
did not trust the popular will; they were quick to appreciate that human
judgment might sometimes fail. You can say that natural law played the
same role in Greek as a constitution of a modern state. The main feature
of the Greek legal system is its philosophical conception.
EXERCISE
Answer the following questions:
1. Enumerate and explain the main features of the Code of
Hammurabi.
2. What is the Corpus Juris Civilis? What are its
components?
3. Discuss the two lives of Roman law: the Primary Life
and the Medieval Life of Roman Law.
4. What is the meaning of the term `` reception`` used in
connection with Roman law?
5. What are the factors that should be taken into account
in translating the Digest?
6. Identify the two legacies left behind by the Romans.
7. What is the main argument of Hoeflich?
8. What are the elements of the Code Corpus Juris Civilis?
9. Which laws were applied in the Western Roman Empire
under the Germanic invaders?

Tick the correct answer.
1. Which other “sources of law” mentioned by Cicero are not listed
in the other two statements on the sources of Roman law that have
been preserved?
a. Custom, equity and decided cases.
b. Statutes, equity and resolutions of the senate.
c. Writings of the jurists, statutes and edicts of magistrates.
d Custom, edicts of magistrates and equity.
2. The 12 Tables were:
a. A comprehensive codification of all of Roman law.
b. A partial codification of most of Roman law.
c. Merely a redaction into writing of certain controversial rules

of law.
d. A code of law in the modern sense
3. The ius honorarium was:
a. A body of law developed through the edicts of magistrates.
b. A body of law created to replace the old civil law.
c. A body of law exclusively created for use by foreigners.
d. A body of law exclusively created for use by Roman citizens.
4. Which type of Imperial decree is sometimes omitted from the list
of ‘sources of law’ in the Imperial period?
a. Edicta.
b. Decreta.
c. Mandata.
d. Rescripta.
5. The first phase of Justinian’s legislative program involved the
updating of:
a. Juristic law.
b. A textbook for law students.
c. Imperial law.
d. 50 Decisions.
6. The Digest is an anthology of:
a. Imperial law.
b. Statutes.
c. Case law.
d. Juristic writing.
7. Which of the following is not one of the so-called ‘Barbarian
Codes’ of the early medieval period?
a. Theodosian Code.
b. Lex Romana Visigothorum.
c. Lex Romana Burgundionum.
d. Edictum Theodorici.
8. The jurist most frequently cited in the Digest is:
a. Paul.
b. Papinian.
c. Ulpian.
d. Gaius.
9. The most plausible reason for the speed with which the Digest
project was completed is:
a. The existence of a pre-Digest.
b. That the books that the commission claim to have read were in
fact not read.
c. Political problems such as the Nika Riots.
d. All of the above.
10. The main sources of law in the archaic period were:
a. Custom and statute.
b. Statute and Royal decree.
c. Custom and the edicts of magistrates.
d. Custom and Royal decree.
ANSWERS
1. (a) 2. (c) 3. (a) 4. (c) 5. (c)
6. (d) 7. (a) 8. (c) 9. (d) 10. (d)
REFERENCES
1. Dougherty, M.V. (2011). Moral Dilemmas in Medieval Thought:
From Gratian to Aquinas. Cambridge: Cambridge University Press.
2. ennington, K. (2004). Gratian, Causa 19, and the Birth of Canonical
Jurisprudence. In Condorelli, O (ed.) Panta Rei: Studi dedicati a
Manlio Bellomo (pp. 339-355). Roma: Il Cigno.
3. Grand, E. (2007). A History of Natural Philosophy: From the
Ancient World to the Nineteenth Century. Cambridge: Cambridge
University Press.
4. Helmholz, R. H. (2008). Western canon law. In Witte, J & Alexander,
F. S. (eds.), Law and Christianity: An Introduction (pp. 71-88).
Cambridge: Cambridge University Press.
5. Lesaffer, R. (2009). European Legal History: A Cultural and Political
Perspective. Cambridge: Cambridge University Press.
6. Merera Gudina, Ethiopia: Competing Ethnic Nationalities and the
Quest for Democracy 1960-2000, (2003)
7. Scholler, Heinrich, Ethiopian Constitutional and Legal Development:

Essays on Ethiopian Constitutional Development,(Vol. I) (2005)
8. Southgate Beverly, Why Bother with History: Ancient, Modern and
Postmodern Motivations, (2000)
9. Tierney, B. (2008). Natural law and natural rights, In Witte, J &
Alexander, F. S. (eds.), Law and Christianity: An Introduction (pp.
89- 104). Cambridge: Cambridge University Press.
Major Legal Traditions of the World 143
CHAPTER 3
MAJOR LEGAL TRADITIONS OF THE

WORLD
OBJECTIVES
• Discuss the French legal system
• Explain the German legal system
• Describe the British legal system
• Elaborate the American legal system
• List the civil law and common law contrasted
• Define the socialist legal tradition
• Explain the Islamic legal tradition
• Discuss the African legal traditions
• Define legal convergence and divergence
When discussing issues of transitional justice, it is easy for those

steeped in the Western tradition to assume that the best form of justice in
the aftermath of a crisis is a trial before a judge and punishment handed
down by a court according to the law. Our cultural understandings of
law and the role that law and legal institutions play in the judicial process
and punishment of one’s peer are centered on formal proceedings and

a decision as to whether an individual is guilty or innocent. This belief
in, and reliance on, the court system is something which stems from our
own legal cultural and experience with the law. Western legal traditions
such as the common law and civil law are based on well-defined judicial
institutions, written law, and the presence of legal professionals to
determine what is the appropriate punishment in any situation. Not all
legal traditions are grounded in these same understandings of the law
and the role of law in society. There are other legal traditions in the world,
where the focus has historically centered on rebuilding community
harmony and trust, or reconciling the opposing parties in a conflict
to restore balance. Some of these legal traditions find the basis for the
laws and concepts of justice in religious principles, and some find it in
longstanding customs of the community. In many of these communities,
these traditional views of the law and justice have been mixed over time
with Western, more institutionalized forms of law. Even in those states,
however, it is often the case that society still perceives law and justice
in the traditional manner of the community rather than in the Western
notion of arrest, trial, and punishment for the individual.
Given the importance of legal tradition in shaping cultural
perceptions about justice, this Article seeks to better understand this
relationship through a study of the legal traditions of communities
that have experienced conflict and are moving into the transitional
justice phase. This argues that instituting more effective post-conflict
transitional justice requires that closer attention be paid to the local
understandings of law in making assessments about justice and the best
way to achieve peace and harmony in post-conflict societies. For those
who work to assist these communities as they rebuild, understanding
the local community’s perspective on law and justice and the appropriate
mechanisms for achieving peace and reconciliation post-conflict will be
more effective than simply imposing Western ideals about justice being
handed down with a judicial decision.
3.1 THE FRENCH LEGAL SYSTEM

Unlike English-speaking countries, which use a system of “Common
Law”, France has a system of “Civil law”.
Common law systems are ones that have evolved over the ages,
and are largely based on consensus and precedent. Civil law systems
are largely based on a Code of Law. Worldwide, Common Law forms
the basis of the law in most English-speaking countries, whereas Civil

law systems prevail in most of the rest of the world, with the notable
exception of many Islamic nations and China.
In line with the democratic principle of the separation of powers,
the French judiciary - although its members are state employees - is
independent of the legislative authority (government).
3.1.1 The Origins of the French Legal System

The basis of the French legal system is laid out in a key document
originally drawn up in 1804, and known as the Code Civil, or Code
Napoléon, (Civil code or Napoleonic code) which laid down the rights
and obligations of citizens, and the laws of property, contract, inheritance,
etc.. Essentially, it was an adaptation to the needs of nineteenth-century
France of the principles of Roman law and customary law. The Code
Civil remains the cornerstone of French law to this day, though it has
been updated and extended many times to take account of changing
society. There are other codes, including notably the Code Pénal, or
Penal code, which defines criminal law.
3.1.2 The Making of Law

Laws in France, as in other democratic countries, are generally
proposed by the Government of the day, and must be passed by the
two houses of the French Parliment, the National Assembly and the
Senate. They become law as from the date on which they have been
passed by Parliament, signed into law by the President, and published
in the Journal Officiel, or Official Journal. Statutory instruments (décrets,
ordonnances) become law on signing by the minister(s), and being
published in the Journal Officiel. Publication in the electronic version of
the J.O. is sufficient.
3.1.3 The Two Branches of French Law

Unlike the English-speaking countries, France has a dual legal
system; one branch, known as Droit public, or Public law, defines the
principles of operation of the state and public bodies. This law is
applied generally through public law courts, known as les Tribunaux
administratifs. The other system, known as Droit privé, or private law,
applies to private individuals and private bodies.
Private law - le droit privé

This is the basic law of the land. It is administered through the
judicial courts.
There are two judicial channels, a) those dealing with civil litigation,
and b) those dealing with criminal offences
• Basic civil litigation concerning private individuals is dealt
with by a local court, known as a Tribunal d’Instance, or by
a regional or departmental court known as a Tribunal de
Grande Instance (TGI), depending on the importance of the
case. Commercial and business law is administered through
institutions known as Tribunaux de commerce. These are known
as “first degree courts”.
Appeals are heard in a Cour d’Appel or Court of Appeal, a “second
degree court”. In France, there is a fundamental right of appeal in all
cases. In exceptional circumstances, judgements of the Appeal Court
can be contested at the highest level, the Cour de Cassation, the French
Supreme Court in matters of private law.
• Everyday offences and petty criminal matters are generally
dealt with either by a Juge de proximité (a local magistrate) or
a Tribunal de Police (police court); more serious matters will
be referred to the Tribunal Correctionnel, the criminal law
equivalent of the TGI. The most serious criminal offences,
notably murder and rape, will be referred to a Cour d’Assises,
or Assize court, where they will tried by jury.
Public law - le droit public

Complaints or litigation concerning public officials in the exercise
of their office are heard in Tribunaux Administratifs, or Administrative
Courts. For example, universities or public academic institutions are
regularly taken to court over claimed irregularities in the organisation of
exams. As in the private law system, appeals can be lodged, in this case
with the Cour administratif d’appel, or Administrative appeals court. The
highest echelon, the Supreme Court for public law, is the Conseil d’Etat,
or Council of State, the body ultimately responsible for determining the
legality of administrative measures.
3.1.4 How the Courts Operate in France

French courts are presided over by Juges (Judges) also known as
Magistrats (magistrates). Magistrats, are highly qualified professionals,
almost all of whom have graduated from the postgraduate School of
Magistrature; they are high-ranking juges . In other words, a French
Magistrat is not at all the same as a Magistrate in the English legal system.
Criminal court proceedings can be overseen by a juge d’instruction.
The judge who is appointed to the case is in charge of preparing the
case and assessing whether it should come to court. In legal jargon, this
system is known as inquisitorial, as opposed to the adversarial system
used in Common Law legal systems.
In court, the judge or judges arbirate between the the prosecution
and the defence, both of which are generally represented by their
lawyers, or avocats. The French judicial system does not have recourse to
juries except in assize courts.
If the case goes to appeal, the arguments of the prosecution and the
defence are taken over by appeals specialists known as Avoués.
Recent reforms
In 2008, President Sarkozy announced plans to further reform
and streamline the French judiciary. Among the reforms were plans to
reduce the number of courts, move court procedures towards a more
adversarial system, and to get rid of the system of avoués in the courts
of appeal. This change has not yet been implemented.
One reform recently tried out in a couple of Tribunaux correctionnels
(criminal courts) was the introduction of trial by jury, previously limited
to the assize courts. Juries in this case were made up of six members of
the public, and three magistrates. But in 2013, the socialist administration
of François Hollande decided to scrap this reform, claiming the process
was expensive, slowed down the judicial procedure, and did not produce
any significant change in results.
Getting a lawyer in France

If you wish to take legal action against someone or against an
institution, if someone is taking legal action against you (civil litigation),
or if criminal charges have been brought against you (for example for
reckless driving), you may need to find a lawyer (trouver un avocat).
The consular services of the British, United States and other

embassies in Paris, and consulates in other cities, can often point you
in the direction of an English-speaking lawyer. There are a number of
English-speaking lawyers practicing in France, including British and
American lawyers, qualified to practise as lawyers in France; though
they are not to be found in every town or city, far from it. To find one,
check the local yellow pages, or contact the local Tribunal d’Instance.
Alternatively, contact a local French lawyer specialising in the
appropriate field of law : family law, inheritance law, property law, etc.
For companies, the situation is easier, and there are growing
numbers of international corporate law firms, including some very big
ones, established in Paris, Lyon, Toulouse and other big cities. For details
contact the local consulate, the Tribunal de commerce, or the Chamber
of Commerce. The Franco-British chamber of commerce has a list of a
number of international business law firms in France.
3.1.5 Dispensation of Justice under the French Legal

System
France is a European nation which has for centuries played an
important economic, cultural, and political role in world history.
Originally inhabited by Celtic people in the Iron Age, it went on to
become an independent republic in the Medieval Ages under influence
of Roman and Germanic invasions. The French legal system belongs to
the civil law tradition, like most continental European countries.
France is often classified as part of the Romano-Germanic family of
law, because of its historical links with both Roman law, revived in the
universities since the 12th century and Germanic customary law. From
the thirteenth century on, the Northern part of France was under the
influence of droit coutumier (Germanic tribe customs), and the Southern
part was controlled by droit écrit (Roman law influence).
During the period from the 16th century to the Revolution, known
as the Ancient Regime (ancien droit), France emerged as a nation-state,
under the strong centralization of royal authority. The sources of law of
that period included coutumes locales (local customs), Roman law, canon
law, royal ordinances, the case law of the Parliaments, and doctrinal
writings (doctrine). Law was taught in the universities.
France was also the cradle of the French Revolution which in 1789
led to the overthrow of the French Monarchy and the formation of a
democratic republic. The French National Assembly formed directly
after the Revolution passed the ‘Declaration of the Rights of Man and
of the Citizen’ which is proclaimed to be the first direct declaration of
human rights, or ‘natural rights’.
However, control over France soon shifted to the hands of
Napoleon, who was crowned emperor of France in 1804. Napoleon, on
taking office, oversaw several liberal reforms in the European society
and one of his greatest contributions to the world was the enactment
of the ‘Napoleonic Code’, officially called the ‘Code civil des Français’,
in 1804. This codified body of law did not draw its content from earlier
French laws but instead adopted features of Justinian’s sixth-century
codification of Roman law, the ‘Corpus Juris Civilis’.
Before the Code, France did not have a single set of laws; law
consisted mainly of local customs and there were also exemptions,
privileges, and special charters granted by the kings or other feudal
lords. The Code was set down keeping in mind the ideals of the French
Revolution and it did away with privileges based on birth, allowed
freedom of religion, and specified that government jobs should go to the
most qualified.
It further laid stress on easily available, accessible and simply
laid down laws which were even written down in various vernacular
languages so that people could read and understand the laws. It did
away with a huge mass of compiled and non-compiled laws, thus,
reducing ambiguity. Also, Code Penal was also enforced during this
period which comprehensively addressed Criminal Law and seized to
recognize blasphemy, heresy, homosexuality, etc as crimes. The French
Legal System, thus, became a Civil law legal system in its true sense.
Given the huge expanse of French territory in that time, it was
adopted in many countries, and thus formed the basis of the private law
systems of Italy, the Netherlands, Belgium, Spain, Portugal, and Poland.
After the fall of Napoleon, the Bourbon Monarchy briefly held power,
before the constitutional July monarchy was established in 1830. The
second French Republic was formed in 1848, which again led way to
an empire under Napoleon III soon afterward, which lasted for a short
period before a republic was created again.
The current constitution on France was adopted in 1958 and is

known as the Constitution of the 5th Republic. The Constitution declares
France as a secular and democratic country, making it a unitary, semi-
presidential republic.
At present, France follows a civil law legal system wherein laws
are made through acts or statutes passed by the elected representatives
of the people. French law is broadly divided into two principal areas:
private law and public law. Private law includes, in particular, civil law
and criminal law. Public law includes, in particular, administrative law
and constitutional law.
In theory, the system is a direct contrast to the system of setting
precedents as prevalent in Common Law Legal System and thus, case
law is not an authoritative source of law and judges are prohibited from
setting precedents (Art. 5 of the Civil Code). In reality, however, case
laws exercise an important influence on the development of law.
The Constitution makes the President of the Republic the guarantor
of the independence of the Judiciary and following Article 64, judges are
irremovable.
Another fundamental tenet of the French judicial system lies in
the duality of the court system: Judicial civil and criminal courts (also
referred to as ordinary or regular courts) govern disputes among private
individuals.
Administrative courts govern disputes any time the State is involved.
Each court system has its own hierarchy and judges and applies its own
law. The Cour de cassation is the highest judicial court, while the Conseil
d’Etat is the highest administrative court.
PRIVATE LAW Or Le Droit Prive:

Private Law is the law applying to private individuals or groups.
It has two major channels- Civil Law and Criminal Law. The Civil Law
puts forward and upholds the several rights and obligations of the
citizens of France and prescribes the method of compensating people
whose rights have been encroached upon.
On the other hand, the Criminal Law deals with crimes or offenses
which are considered to have been done against society and the state.
It identifies certain acts or omissions as crimes and puts forward the
suitable punishment for the people who commit such crimes. Following
Article 66(1) of the Constitution, the death penalty is not allowed in

France but the crimes are categorized into 3 classes depending on the
severity of the acts.
Basic civil litigation concerning private individuals is dealt with
by a local court, known as Tribunal d’Instance, or by a regional or
departmental court known as Tribunal de Grande Instance, depending on
the importance of the case. Commercial and business law is administered
through institutions known as Tribunaux de commerce. These are known
as “first degree courts”.
Appeals are heard in Cour d’Appel or Court of Appeal, a ‘second-
degree court’. In France, there is a fundamental right of appeal in all cases
and review de nova applies, which means that the entire investigation
which may include a collection of evidence, examination of witnesses,
etc can be done all over again in the first appeal.
Further, in exceptional circumstances, judgments of the Court of
Appeal can be contested at the highest level, the Cour de Cassation,
which is the French Supreme Court in matters of private law. However,
this court deals purely with law points and does not dispute or re-
ascertain the facts of the case.
Court of Cassation:
The Court was established in 1790 under the name Tribunal de
cassation during the French Revolution, and its original purpose was
to act as a court of error with revisory jurisdiction over lower provincial
courts. It was meant to unify the legal system across the country and
bring consistency in the system of dispensation of justice.
However, it is believed that a supreme court of judicature existed
from earlier times as cases from the lower courts were often sent to the
King’s Council for final adjudication. In that light, the contribution of the
Revolution was that it shifted power from the King and his councilmen
to judges.
The Cour de Cassation is governed by the Code of Judicial
Organisation and is divided into rooms depending on the type of appeal
it entertains. Originally, it had 3 rooms which were- civil, criminal and
room request. Now, the number has risen to 6 and it includes- First Civil
Chamber, Second Civil Chamber, Third Civil Division, Commercial,
Economic and Financial Room, Social Room, and Criminal Division.
Each of these has a President.
These rooms are itself divided into section presided over by judges
decided by the President, depending on the seriousness of the issue in
question. If the grounds are not very serious, a Bench of 3 judges hears
the appeal, while in other cases a Bench comprising a minimum of 5
judges look into the matter.
On the decision of its President, the chamber may also sit in plenary
session, for example, when the decision to intervene in a case could
result in a reversal of precedent, or because it has to rule on a sensitive
issue.
1. The First Civil Division (première chambre civile) deals with
family law, successions (wills), child custody, professional
discipline, individual rights, contractual liability.
2. Second Civil Division (deuxième chambre civile) handles
divorce, civil liability (torts), and electoral matters.
3. Third Civil Division (troisième chambre civile) (or “Land Court”)
deals with disputes on immovable property (real estate),
housing, city planning, leases, foreclosures.
4. Commercial Division (chambre commerciale, financière et
économique) handles companies, bankruptcy, business,
banking, and intellectual property
5. Social Division (chambre sociale) handles labor disputes,
worker compensation, and welfare.
Criminal Division (chambre criminelle):

It deals with criminal cases.
Apart from these six, another formation called the Division Court
(Chambre Mixte) handles disputes where the subject matter of appeal
falls under the purview of multiple divisions.
PUBLIC LAW Or Le Droit Public:

Public law is that division of law which governs the relationship
between the public and the state. Complaints or litigation concerning
public officials in the exercise of their office is heard in Tribunaux
Administratifs, or Administrative Courts.
Appeals can be lodged, in this case, with the Cour administratif d’appel,
or Administrative appeals court. The highest echelon, the Supreme
Court for public law, is the Conseil d’Etat, or Council of State, the body
ultimately responsible for determining the legality of administrative

measures.
Council of State:
Conseil d’État, (French: “Council of State”), the highest court in
France for issues and cases involving public administration. Its origin
dates back to 1302, though it was extensively reorganized under
Napoleon and was given further powers in 1872.
Initially, the Council consisted of members from the clergy, the old
nobility, and the administration; and the members were considered
to be just below princes and dukes. Their job was to advise the king
on administrative decisions and disputes. Though the institution was
significantly revamped after the French Revolution, it has long had the
responsibility of deciding or advising on state issues and legislative
measures submitted to it by the sovereign or, later, by the president, the
cabinet, or the parliament.
It is the court in which French citizens may bring claims against
the administration, though usually since 1953 such claims originate in
the regional administrative tribunals of the first instance, and appeals
are taken to the Conseil d’État. Progressively since 1987 certain appeals
have been dealt with by seven new administrative appeal courts based
in major cities. These courts are controlled by the Conseil d’État.
Chaired by the Vice President, the Council of State is organized to
fulfill three tasks:
• The General Secretariat manages the State Council and the
whole of the administrative court;
• The litigation section provides the function of judge the
actions of governments;
• Five advisory sections and the section of the report and studies
give opinions to the government on draft texts (laws, decrees,
etc.) before they are passed and make the legal studies that
are requested.
The Vice President chairs the General Assembly though, in theory,
it can be chaired by the Prime Minister or the Minister of Justice. This
Assembly does not only advise the government but also drafts the texts
of legislations, decrees, etc.
He also chairs the Assembly of Litigation which looks into appeals

of suits filed against the State or its functionaries. The VP is also the
de-facto Chairman of the Higher Council of Administrative Courts,
the Administrative Courts of Appeal and the Chairman of the Board of
Directors of the National School of Administration (ENA).
Cases involving claims against government bodies, local authorities,
or the central government, including all delegated legislation (e.g.,
statutory instruments, ministerial orders), are heard by the administrative
courts for which the court of last resort is the Council of State.
In cases where there appears to be concurrent jurisdiction or conflict
of laws between the judicial and administrative courts, whether both
retain jurisdiction (“positive dispute”) or decline jurisdiction (“negative
dispute”), the Jurisdictional Disputes Court (Tribunal des Conflits)
decides the issue. The Court is composed of 4 members from both
senior courts and occasionally, to break a tie, the justice minister who, if
present, presides.
3.1.6 Constitutional Council

Article 56-63 of the Constitution of France provides for the
establishment of a Constitutional Council to uphold its provisions.
Neither the Court of Cassation nor the Council of State has the power
to strike down primary legislation i.e., acts of Parliament. The Courts
can, however, refuse to apply any statutory provision they consider
inconsistent with France’s international treaty obligations.
The Constitutional Council, however, can strike down any law
that it deems unconstitutional. Before a law is enacted, the French
President, speaker of either house of Parliament, or, more commonly,
60 parliamentarians from the same house may petition the Council
for review. Some laws, mostly constitutional laws, come before the
Constitutional Council for review without first being petitioned.
However, after the Constitutional Amendment of 2008, Article 61 of
the Constitution allows ‘posteriori’ review and it has been interpreted
recently to allow even ordinary citizens facing trial can also appeal to
this council questioning the constitutionality of the law under which
they are being tried.
The Constitutional Council was first formed by the Constitution of
the 5th Republic in 1958 with the duty to uphold the provisions of the
Constitution. Its main function is to review proposed statutes passed by

the Parliament before the President signs them into laws.
The Constitution of the French Fifth Republic distinguishes two
distinct kinds of legislation: statute law, which is normally voted upon
by Parliament and government regulations, which are enacted by the
Prime Minister and his government as decrees and other regulations.
Article 34 of the Constitution exhaustively lists the areas reserved for
statute law: these include, for instance, criminal law. Any regulation
issued by the executive in the areas constitutionally reserved for statute
law is unconstitutional unless it has been authorized as secondary
legislation by a statute.
The Council is made up of former presidents of the Republic who
have chosen to sit in the council (which they may not do if they become
directly involved in politics), and nine other members who serve non-
renewable terms of nine years, one third of whom are appointed every
three years, three each by the president of the Republic, the president of
the National Assembly, and the president of the Senate. The president of
the Council is selected by the president of the Republic. Following the
Constitutional amendment of 2008, the appointments are subject to a
parliamentary approval process.
An interesting point of the French Legal System is the importance
it gives to the treaties and international agreements it enters into which
hold primacy over acts of parliaments following Article 55 of the
Constitution of France.
Title XV of the Constitution deals with the relation of the Republic
with European Communities and the European Union. The European
Court of Human Rights (ECtHR) has jurisdiction over claims of
government violations in breach of the European Convention on Human
Rights in any EU member country. Before the ECtHR grants an appeal,
however, a claimant must have exhausted all available judicial recourse
in the violating country; in France, this means following the appeals
process to either the Court of Cassation or the Council of State.
France has a Civil Law Legal System which is governed by codes
and legislations; unlike the Common Law Legal System which derives
a huge mass of its laws from precedents set by courts of record. Further,
it is an inquisitorial system and so, the judges or the jury take an active
part in the investigation along with the police force. The lawyers do
not get an opportunity to investigate and this is a far cry from the
adversarial system followed in Common Law countries where the

lawyers investigate while the judge remains absolutely neutral.
It is true that in the inquisitorial system, one does not suffer much
from the incompetence of their lawyers as judges play an active role,
but there may always be an innate bias of the judge against a certain
party and this may lead to unfair judgments. However, France has the
provision for review de nova which carries on an investigation for the
second time on appeal. Also, the Administrative Courts, especially the
Counsil d’Etat is a unique feature of the French Legal System because of
its composition and functioning.
The Constitutional Council is also a highly powerful body, though
it cannot be approached directly and can be approached only when all
other options have been exercised. Further, for the citizens of France, the
European Court of Human Rights is the last resort which has jurisdiction
over all the countries belonging to the European Union and can punish
the administration as well as issue injunctions to protect the rights of
the people. Thus, the French Legal System is a highly organized, multi-
tiered legal system.
3.2 THE GERMAN LEGAL SYSTEM

The legal system in Germany is based on the Civil Code and the
cour The main legal resources are the Constitution, the laws passed by
the Federal Parliament as well as the EU regulations and directives. For
companies operating in the country, other relevant legal regulations are
found in the Commercial Code, apart from the Civil Code.
The judicial system in Germany is made of ordinary courts,
specialized courts (for administrative, labor or fiscal matters, for
example) and constitutional courts.
3.2.1 The German System

Roman law, as embodied in the Corpus
Juris Civilis, was “received” in Germany Hints
from the 15th century onward, and with
this reception came a legal profession and The differ-
a system of law developed by professionals ence between the
(Juristenrecht). Roman law provided the German Federal
Constitutional Court
theoretical basis for legal progress that
and federal courts
culminated in the work of the scholars of is that the Constitu-
the 19th century. Under this tradition, the tional Court can be
legal process has been viewed in Germany appealed to in civil
as the application of more or less generally or criminal matters
formulated rules to individual cases. only if constitutional
German courts traditionally have not rights have been
been as dominant in developing the law breached, otherwise
as have their counterparts in the common- it cannot act as an
law countries. Roman law provided tools appellate body in
the judged case.
to strengthen sovereignty, as well as
the correlative ideas that the legislative
function is a state monopoly and that the
responsibility for the development of law rests with a legally trained
state-controlled bureaucracy rather than—as in 18th- and 19th-century
England—with a combination of gentry and leaders of the bar. German
judges traditionally have been university-trained experts under the
authority of the state and the anonymity of the court. In the post-World
War II period, however, West German judges assumed a more active
role, especially in constitutional law.
3.2.2 The German Civil Code

Because the German Civil Code of 1896 came almost 100 years later
than the civil code of France, its drafters profited from the intensive
efforts of German scholars who had systematized, clarified, and
modernized the law during the 19th century. As a result, the German
code is markedly different from its French predecessor: its arrangement
is more orderly, its language more precise, and its use more exacting.
The appeal of the German code is from lawyers to lawyers; the
matter-of-fact neutral tone contrasts with the livelier mood in which the
French Civil Code was written. It does not try to teach men in a broad
sense, but it emphasizes ethical imperatives. Good faith and fair dealing
are to be observed in all affairs. Breaches of good morals, abuses of

rights, and underhanded legal transactions are deprived of legal effect.
The code was meant to fit the society of the turn of the 20th century, but,
through the use of general clauses that leave the elaboration of specific
norms to the judges, it demonstrated an adaptability to new economic,
cultural, and sociopolitical postulates.
3.2.3 The Main Categories of German Private Law

The German Civil Code begins with the proposition that at birth
every person acquires the capacity to exercise rights and to fulfill duties.
A minor’s interests are protected by a representative who acts in his
name, and although certain legal transactions may be entered into at
age 7, full legal capacity is not acquired until age 18 (formerly 21). Every
person possesses the right, protected by an action in court, to freedom
from personal injury and from attacks on individual dignity.
Marriage and family

Since 1875 marriage has required civil celebration by a registrar, who
cannot be a priest. Celebration in church may follow the civil ceremony.
Marriage can be declared null and void on application by one of the
spouses or by the public prosecutor on various grounds, such as lack
of form or affinity, but the consequences of such nullity approximate
those of divorce: the children are not necessarily illegitimate. Since 1976
the sole ground for divorce has been the breakdown of the marriage,
which is presumed if the spouses have lived apart for a year and are in
agreement on the divorce, or if the spouses have lived apart for three
years.
The provisions of the German Civil Code concerning the rights of
women in marriage were less restrictive than those of the French Civil
Code. After World War II nearly all rules contravening the principle
of equality of men and women were repealed. The ordinary statutory
marital-property regime, with the husband administering and using the
wife’s estate, was replaced in 1957 by a system of separate management
and equal sharing in the value of acquisitions made during the marriage.
Upon the death of one spouse, the surviving spouse is entitled to a
generous share in the estate. Care for the person and property of the
children belongs to both spouses.
Succession
In contrast to Anglo-American law, the assets of the decedent pass
directly to the heirs, who are determined by the rules of intestacy or
by testamentary disposition. As a general rule, the estate does not pass
through a stage of administration by an administrator or executor. The
heirs are liable for the debts of the decedent with their own property, but
by taking appropriate steps they may limit their liability to the assets
of the estate. A testator may appoint an executor to perform certain
functions in the settlement. A will may be unwitnessed, but then it
must be entirely in the testator’s handwriting. Public wills are either
made orally before a public official, who records them, or set down in a
document that the testator hands to the official with a declaration that
it is his last will. Descendants and other close relatives, including the
surviving spouse, cannot be deprived of more than one-half of their
intestate shares.
Property
Property is declared to entail obligations of the owner to the
community. This is particularly important in the case of farmland,
which can be pooled and redistributed to make better use of machinery
and to increase production. Every creation, transfer, encumbrance, or
cancellation of a right in immovable property requires, in addition
to the agreement of the parties, registration with the district court. A
person who, in good faith, acquires an interest in land from the person
registered is protected. In order to obtain title to a chattel from a person
who does not own it, the transferor must have had possession, the
transferee must have been in good faith, and the owner must not have
lost possession involuntarily. But neither in the case of land nor in that
of chattels is it required that the transfer to the transferee be for value.
Even if the transferee acquires a title, he may be required to surrender
the asset or to pay its value if the acquisition appears to be a legally
unjustified enrichment.
Contract and delict

Parties are free to regulate their relations by contract, within limits
set by express statutory prohibitions and by good morals. Strict limits
are set to eliminate fraudulent practices by one of the contracting parties.
In the case of a valid contract, the parties must observe the requirements
of good faith, with ordinary usage taken into consideration. The
determination of “ordinary usage” is left to the courts.
Unless the promisor can prove that a breach of contract has been
caused in a way entirely outside his sphere of risk, he is liable for
damages. But if the promisee chooses to do so, he may have the promisor
ordered to complete the contract as long as it is not shown that this is
impossible. The principle that “anyone who through an act performed
by another or in any other way acquires something at the expense of that
other without legal justification is bound to return it to him” is stated in
broad terms, but it is cautiously applied by the courts.
With regard to delict, the German Civil Code provides that any
person who intentionally or negligently injures unlawfully the life, body,
health, property, or any other absolute right of another person is bound
to compensate him for any damage arising therefrom. Damages also are
due for harm caused by the violation of a statute meant to protect others
and for harm caused intentionally and immorally. If a public officer
violates his statutory duty, court remedies against the government are
readily available.
Although the German legal system operates differently than the
Anglo and American systems, legal specialists who have studied it
are usually in agreement that it is fair. It provides many safeguards to
ensure the fairness of investigations and trials.
3.2.4 Courts and Judges

For anyone that becomes involved in a legal proceeding there are a
number of different courts in which their case may be heard - depending
on the nature and seriousness of the case. There are also a number of
different higher courts to which appeals can be made. The number of
and types of judges that hear cases and make rulings may also vary
depending on the type of issue involved.
There is no such thing as a jury trial in Germany and judges take on
a more active role in court proceedings. Court procedures are otherwise
similar to a jury trial in the USA. Under German law the accused is
presumed innocent until proven guilty.
Judges
Depending on the specific court, a tribunal can be made up of a
single professional judge or a combination of professional judges and
“lay judges”. In minor cases there may be only a single professional
judge presiding. Or, if the charges are severe and the accused faces
heavy penalties, there may up to be five persons hearing the case; three
professional judges and two lay judges or five professional judges.
Professional judges serving in the various German States (Länder)
are trained legal experts and are normally employed as civil servants
for life by the Länder. Lay judges are ordinary citizens selected by a
committee to serve a pre-determined length of time. All judges serving
in the federal courts are trained in the legal profession. They have to be
professional judges or lawyers.
Courts
There are both ordinary and specialized courts in the German
justice system.
Ordinary Courts
Ordinary Courts hear matters relating to civil, criminal, family and
marriage laws. (Local Courts also take care of company registrations
and other administrative matters.) These are the most numerous
courts in Germany. There are four tiers of Ordinary Courts. Local
Courts (Amtsgerichte), can have a single professional judge or up to
two professional judges and two lay judges. The next level is the
Regional Court (Landegericht) where up to three professional and two
lay judges hear cases. After that comes the Higher Regional Courts
(Oberlandesgerichte) that seat three to five professional judges. The highest
Ordinary Court is the Federal Court of Justice (Bundesgerichtshof). It has
five professional judges that hear cases. Criminal cases can be assigned
to any of the first three Courts. Civil matters are normally assigned to
the first two Courts. Appeals can be made to two higher courts.
Specialized Courts
The special Administrative law courts (Verwaltungsgerichte) have
three levels and hear cases regarding government regulations and
actions.
Labor law courts (Arbeitsgerichte) also have three levels and hear
cases regarding employment issues, working conditions and collective
bargaining agreements.
Social law courts (Sozialgerichte) have three levels and work with
cases involving the various social benefits. These include unemployment
payments, workers compensation claims and social security payments.
Financial Courts (Finanzgerichte) have two levels and only adjudicate

cases involving tax issues.
Any Constitutional law issues are heard by the Federal Constitutional
Court (Bundesverfassungsgericht).
3.2.5 Rights & Laws

Self Incrimination
When authorities question a suspect, they must make it clear that any
statement may be used against him or her. A suspect can’t be compelled
to testify against himself or herself, and has the absolute right, without
undue influence, to remain silent.
Evidence Gathering
Physical examinations can be made over the suspect’s objection.
Blood samples, for example, may be taken if the alleged offense is related
to drugs or alcohol, provided this doesn’t pose a health danger.
Authorities
The authority of German police is about the same as in other
developed countries. If a party is required to appear in a German court
he or she will be properly served with a summons. Failure to appear in
court may be punished.
Drugs
Drug offenses such as importation, sale or possession of narcotics,
including marijuana and hashish, are considered serious crimes.
Firearms
German law has very strict requirements regarding the registration
and possession of firearms and other weapons.
Selling an item
Anything an individual sells (including a car) automatically carries
a six-month warranty under law unless this has been explicitly excluded.
Normal wear and tear of a used item is not considered a defect.
Divorce
Under German marriage laws, a party can’t file for divorce until he
or she has been separated for one year, or for three years if the divorce is
contested. Annulments are very rare.
Contracts
The differences between German and Anglo-American laws are
particularly obvious when it comes to contracts. In the US, for example,
it is common, and usually necessary, to spell out everything in a contract.
The rule in German law, on the other hand, is: “a short contract is a good
contract.” For example the main issues in rental agreements and leases
are codified in a law dealing with landlord-tenant relations. There may
be nothing in the lease dealing with notice periods, renovations required
or actions in the event of non-payment of rent, but these things are still
covered because of the law.
House/Apartment Rental
An agreement to rent an apartment or house for a fixed term cannot
be terminated early except under extraordinary circumstances. A job
transfer is usually not an extraordinary circumstance. It’s advisable for
expatriates to have a German attorney lead them through this maze.
Laws regarding respect

It is a criminal offense in Germany to show disrespect for the colors,
flag, coat of arms or national anthem of the country or any of its states;
or to remove, damage or disfigure any publicly displayed national
flag or symbol. Insulting an individual can also be a criminal offense,
particularly if the individual is an official, such as a policeman or judge,
acting under his legal authority.
Detention
Under certain circumstances, accused parties who are not German
may have their passports confiscated to keep them from leaving
the country. In serious cases, the accused may be placed in pre-trial
confinement.
Prosecution
The first phase of a German criminal prosecution is pre-trial
investigation to determine if there are grounds for a formal indictment.
If a prosecutor determines that there is, the case is transferred to the
appropriate German court, where the presiding judge decides if the

evidence warrants a trial. This contrasts markedly from the US, where a
judge will have little or no knowledge of the facts of a case until evidence
has been introduced in the courtroom.
Pleas & Evidence

Formal pleas of “guilty” or “not guilty” do not exist in German
trials. An accused party can’t plead guilty in order to receive a lesser
punishment. Hearsay evidence and, under certain conditions,
depositions of absent witnesses can be admitted as evidence in a German
court. The attendance of witnesses and the production of evidence can
be compelled.
Attorneys
It is wise to have a German defense counsel unless a case is very
minor or the charges are undisputed. The right of the accused to be
represented by counsel is carefully protected under German law. In
some cases when the accused is charged with an offense punishable by
a year or more of confinement, German law mandates the provision of
counsel even if the accused doesn’t wish it.
Attorney fees depend on the length of the trial and the complexity
of the case. They can be quite high if the trial takes more than a day, or if
representation is by an attorney of high repute. There are also court costs
that can be quite high if the case is complex. If the accused in criminal
cases is acquitted, the court generally pays the attorney’s fees.
Though he has the duty of defending the accused to the maximum
of his ability, a German lawyer is not as active in court as an American
or British lawyer may be. In a German trial, the judge, not the defense
counsel or the prosecutor, obtains the testimony of the witnesses. After
the judge is finished, the prosecutor and the defense counsel will be
permitted to question witnesses. The aim is to obtain the truth from
witnesses by direct questioning rather than through the examination
and cross-examination.
Victims Rights
The German Code of Criminal Procedure allows victims of an offense,
or their survivors, the right to participate in the trial as intervenors or
private prosecutors. Intervenors are usually represented by counsel and
may produce evidence related to the case, as well as question witnesses.
Conviction
If the accused is convicted the court usually will credit the entire
period of pre-trial confinement. For many crimes a probation period of
two to five years is often imposed on first offenders. Depending on the
crime, of course, prison terms can range from one month to life; though
in practice sentences seldom exceed 15 years.
Fines can be levied for violations of traffic, environmental,
consumer protection and unfair competition laws. Also, objects used in
the violation of a law (a car, for example) may be confiscated.
Confinement begins immediately after the judgment of the court is
announced at trial, unless an appeal is pending. In this case the judgment
doesn’t become legally effective until and unless the appeal is denied or
withdrawn.
Appeals
Although German law protects the accused from being repeatedly
prosecuted or subjected to double jeopardy, the prosecution as well as
the defense may appeal a court judgment, and such an appeal by the
prosecution is not considered double jeopardy. Notification for appeal
must be submitted within one week after the oral announcement of
the court’s judgment. A brief supporting the appeal must be submitted
within 30 days.
3.3 THE BRITISH LEGAL SYSTEM

The United Kingdom of Great Britain and Northern Ireland consists
of four countries forming three distinct jurisdictions each having its
own court system and legal profession: England & Wales, Scotland, and
Northern Ireland. The United Kingdom was established in 1801 with
the union of Great Britain and Ireland, but only achieved its present
form in 1922 with the partition of Ireland and the establishment of the
independent Irish Free State (later the Republic of Ireland).
The UK joined the European Economic Community (now the
European Union) in 1973, since when it has been a requirement to
incorporate European legislation into UK law, and to recognise the
jurisdiction of the European Court of Justice in matters of EU law.
There have been significant constitutional reforms since the Labour
government came into power in 1997, which make any description of
the UK legal system before then out of date. The Labour government
immediately instituted a process of devolution, i.e. devolving certain

areas of government to the component countries of the UK: a separate
Scottish Parliament and a Welsh Assembly were established following
referendums in the countries concerned. Ireland already had its
Assembly, although this was not in operation (see below under Northern
Ireland). In the context of these new legislatures the English Parliament
is often referred to as ‘Westminster’. These devolved governments are
dealt with in separate sections. The UK is a signatory of the European
Convention of Human Rights, and this has recently been incorporated
into UK law with the passing of the Human Rights Act 1998. This allows
for the provisions of the Convention to be applied directly by the UK
courts.
There is no written constitution. The Queen is the Head of State,
although in practice the supreme authority of the Crown is carried by
the government of the day. The legislature is a bicameral Parliament.
The House of Commons consists of 659 Members of Parliament (MPs),
elected by simple majority vote in a general election every five years,
although the Government has the right to call an election at any time
before then, and in practice usually brings the date forward to secure
electoral advantage. The House of Lords until recently consisted of
life peers, awarded peerages for public service, and a large number of
hereditary peers whose membership of the House of Lords depended
on their aristocratic birth.
The constitutional law of the UK is regarded as consisting of
statute law on the one hand and case law on the other, whereby judicial
precedent is applied in the courts by judges interpreting statute law.
A third element consists of constitutional conventions which do not
have statutory authority but nevertheless have binding force. Much of
the relationship between the Sovereign and Parliament is conventional
rather than statutory.
3.3.1 Constitutional Reform

The Labour government which came into power in 1997, and is now
in its third term of office, has instituted constitutional reforms in three
distinct areas: the reform of the House of Lords, devolution, and the
passing of the Human Rights Act 1998.
It began the long-overdue process of House of Lords reform
by abolishing the voting rights of all the hereditary peers apart from
ninety-two who remain until the House is fully reformed. Proposals put
forward by the Royal Commission on the Reform of the House of Lords
were published in 2000 as a command paper: A House for the Future
(Cm 4534) with government proposals laid out in The House of Lords:
Completing the Reform (Cm 5291). These proposed a predominantly
appointed second chamber with a minority of elected members
representing regions of the UK, and attracted much dissension. On 13
May 2002 the issue of reform was in effect sent back to the drawing
board. Links to documents on Lords Reform are on the Department
for Constitutional Affairs Lords Reform page; the House of Lords
Information Office has a Briefing Paper on Reform and Proposals for
Reform since 1900 [until 1999].
The Human Rights Act was passed in 1998, incorporating into UK
law rights and freedoms guaranteed by the European Convention on
Human Rights. Although the UK had been a signatory to the European
convention on Human Rights since 1951, the Act provided for the
provisions of the Convention to be incorporated into domestic law.
This means that a consideration of human rights affects every area of
government. For a guide to the effects of the Act see The Human Rights
Act 1998 Guidance for Departments. There is extensive information
about the application of the Act on the DCA’s Human Rights Unit pages.
The Department for Constitutional Affairs (DCA) was established
in 2003, replacing the Lord Chancellor’s Department. Its changed
responsibilities include holding and administering the judicial system,
human rights, and electoral and constitutional reform. The DCA
administers the Courts Service (see under Courts System below) and
oversees judicial appointments. The role of Lord Chancellor has been
modified, with the holder renamed Secretary of State for Constitutional
Affairs and Lord Chancellor, relinquishing his functions as Speaker of
the House of Lords and (most importantly) as a judge. These changes
were brought in by the Constitutional Reform Act 2005 (see Explanatory
Notes to the Act). This Act also made important changes to the courts
and the judiciary. See below for details.
Making a Difference: Taking Forward our Priorities published in
May 2005 sets out the DCA’s achievements and vision.
For valuable commentary on constitutional affairs see the University
College London Constitution Unit, in particular its Constitutional
Update and monthly Monitor.
3.3.2 The Court System

Civil courts
Civil cases at first instance are heard in the County Courts (for minor
claims) or the High Court, which is divided into three divisions: Queen’s
Bench, Family and Chancery. Cases may be appealed to the Court of
Appeal (Civil Division). Cases may be appealed from the County Court
to the High Court.
A useful diagram can be found on Her Majesty’s Court Service
(HMCS) pages, and a description of the functions of the courts on the
DCA site.
The House of Lords is the supreme court of appeal. Its judicial
functions are quite separate from its legislative work, and cases are heard
by up to 13 senior judges known as the Lords of Appeal in Ordinary, or
Law Lords. It shares its function as the supreme appellate court with. The
judicial work of the House of Lords is described on its web pages. The
HMCS web pages provide information on the other courts. However the
Constitutional Reform Act 2005 (see Explanatory Notes) provides for
the establishment of a Supreme Court to replace the judicial function of
the House of Lords with an independent appointments system, thereby
making a constitutional separation between the legislature and the
judiciary.
A further appellate court, sometimes omitted in a description of the
system, is the Judicial Committee of the Privy Council, which hears cases
from the British overseas territories and dependencies as well as some
specialised domestic appeals. It also hears cases concerning questions
relating to the powers and functions of the devolved legislatures. (See
below). The ‘devolution’ function will be transferred to the new Supreme
Court.
In addition to the courts there are specialised Tribunals, which hear
appeals on decisions made by various public bodies and Government
departments, in areas such as employment, immigration, social security,
tax and land. The Court Service also contains information on these.
Her Majesty’s Court Service (HMCS) is an agency of the DCA
responsible for administration of the court system, and was established
in 2005 under the Courts Act 2003, bringing together the separate
agencies previously responsible for court administration.
There has been extensive reform of

civil procedure in recent years. Following
on the publication of a major report on Important
Access to Justice by Lord Woolf in 1996, There is no
a completely new set of Civil Procedure written constitution
Rules were put into operation in 1999, as in UK constitution.
well as new legislation for modernising the The Queen is the
courts and legal services. The Legal Services Head of State. But in
Commission was created under the Access practice, the su-
to Justice Act 1999 to provide a Community preme authority of
Legal Service and Criminal Defence Service the Crown is vested
in the government
and administer legal aid.
which carries out all
Criminal courts the executive func-
tions.
Criminal cases are heard at first instance
in the Magistrates’ Courts, with more serious
ones being hears in the Crown Court. Appeals
are heard in the Court of Appeal Criminal Division. The Review of the
Criminal Courts by Sir Robin Auld was published in 2001, as a result of
which consolidated Criminal Procedure Rules were introduced in 2005.
The Criminal Justice System website contains more information.
The various reports, the new Civil and Criminal Procedure Rules
and much else can be found on the Department for Constitutional
Affairs website.
The Constitutional Reform Act 2005 (Explanatory Notes) provides
for the establishment of a Supreme Court to replace the House of Lords
as the Court of final appeal.
3.3.3 Primary Sources of Law

Web-based sources for primary law have been made available
officially since 1996. However, while they offer authentic texts they are
limited by the fact that they are not annotated, amended or hyperlinked.
Consequently it is necessary to use commercial subscription services
in order to get reliable up to date information. Early in 2000 a new
initiative to put up hyperlinked texts of UK legislation and case law
was launched. Known as BAILII (British and Irish Legal Information
Institute), it is based on the Australian model AustLII. It uses its own
system of citation for cases, which has since been adopted as the
standard ‘neutral’ citation, by the court system. There are links other
cases and legislation where they are loaded on the database. The site
is under development, and coverage is patchy at present. However, in
2005 BAILII has received substantial funding for development, which is
likely to confirm its status as the major free resource for law.
The major encyclopaedia is Halsbury’s Laws of England. 4th ed.
Butterworths, 1973-. It is the starting point for any research on English
law. It is also available as an online subscription service as part of
LexisNexis Butterworths.
Legislation
Legislation since devolution forms several separate entities:
• United Kingdom legislation: applying to the whole UK
• Scottish legislation
• Welsh legislation (Statutory Instruments only)
• Northern Irish legislation
Primary Legislation: Acts of Parliament

There are two main forms of primary legislation: Public General
Acts and Local and Personal Acts. The latter are of specific and limited
application only. For the purposes of this survey will concentrate on
PGAs. Depending on the legislative programme of the government,
some 40-70 Acts are passed each year. The sequential numbering of each
Act within each year is known as a chapter number.
Public General Acts appear in individual
paper-covered volumes, cumulating into
three or four annual volumes. From 1996 Important
they have been published on the Acts of the
Until the
UK Parliament website, and their coverage
establishment of the
now extends back to 1988. Many recent Acts Scottish Parliament,
have useful Explanatory Notes. They are Acts of Parliament
also on BAILII, and the texts here contain with specific appli-
hyperlinks to other legislation on the BAILII cation to Scotland
database. were made in the
Westminster Parlia-
Unamended legislation is of limited ment. The first of
value, however, and it is always necessary the Acts of the Scot-
to consult up to date sources. The principal tish Parliament was
printed source for statutes is Halsbury’s passed in 1999.
Statutes, published by Butterworths. This
is arranged by subject in 50 volumes and contains the amended text

of all Acts in force with extensive annotations. It is updated by means
of an annual Cumulative Supplement and a loose leaf Noter-up, both
arranged like miniature versions of the work itself.
Halsbury’s Statutes annotations are available on LexisNexis
Butterworths (see below under Electronic sources).
Current Law Statutes, published by Sweet & Maxwell, are a
chronologically arranged printed source. The texts of Acts are therefore
unamended, but are annotated. This source is of particular value for
finding the background to legislation, and tracing the documents
(reports, white papers, etc.) and debates which preceded the Act. Some
of this material has been incorporated into Westlaw (see below under
Electronic Sources).
Delegated Legislation: Statutory Instruments

Statutory Instruments, or SIs, are regulations made under the
authority of an Act of Parliament. There are up to 3500 of these
published annually, and they are numbered sequentially within each
year. They are important documents, which often provide the detail
required for the application of the Statute, and some contain provisions
for the commencement of an Act (when it comes into force). Statutory
Instruments are available on the web from 1987 on the OPSI site and also
on the electronic services listed below.
Electronic Sources for Legislation

Public domain sources include the Office for Public Sector
Information (OPSI) which hosts legislative texts. As well as the public
domain sources for legislation on the Web listed above there are several
subscription services. OPSI was established in 2005 and has taken over
the functions of Her Majesty’s Stationery Office (HMSO)
BAILII (British and Irish Legal Information Institute) contains the
text of Acts since 1988 and Statutory Instruments since 2002.
LexisNexis Butterworths is the new platform combining Lexis and
Butterworths services. At the time of writing the new service is about
to be launched. It contains the same legislative data as LexisNexis
Professional, including Statutes and Sis, and the Halsbury’s annotations.
Justis UK Statutes contains the full text of Statutes as enacted with
cross referencing between amended and amending legislation, and is
the only service to include all repealed statutes as well as those in force.
Justis UK Statutory Instruments contain SIs from 1987, with a separate
database containing an archive of pre-1987 SIs.
Westlaw UK (www.westlaw.co.uk or www.westlaw.com) contains
consolidated Statutes and SIs in force. It also has historical versions of
statutes
Lawtel contains links to the official version of Acts and statutory
status tables giving details of amending and amended legislation with
links.
3.3.4 Legal systems in the UK (England and Wales)

The United Kingdom (the UK) has three separate legal systems:
one each for England and Wales, Scotland and Northern Ireland. This
reflects its historical origins. The answers below deal primarily with the
legal system of England and Wales but make reference to other parts of
the UK where relevant.
The UK has an unwritten constitution in that there is no single
written document that sets out the rights of individual citizens and
how the Government should act. The UK constitution is comprised of
a variety of sources, some of which are written (such as statutes) and
others (such as constitutional conventions), which are unwritten.
The constitution is unitary in that the Parliament in Westminster is
the supreme law-making authority. Since 1999, devolution has provided
for the transfer of powers from the Westminster Parliament to assemblies
in Cardiff (Wales) and Belfast (Northern Ireland), and the Scottish
Parliament in Edinburgh. However, other law-making bodies, such as
the devolved assemblies or local authorities, derive their law-making
authority from powers that they have been granted by the Parliament
in Westminster.
Constitutional conventions are an important non-legal and
unwritten source of the constitution. Constitutional conventions may be
defined as: “…rules of constitutional behaviour which are considered to
be binding upon those who operate the constitution but which are not
enforced by the law courts…nor by the presiding officers in the House
of Commons” (Marshall and Moodie, Some Problems of the Constitution).
An example of a constitutional convention is that the monarch always
gives Royal Assent to a bill, if advised to do so by the Prime Minister.
As constitutional conventions are “non-legal” they do not require

a procedure for their creation. If they become obsolete, they can be
dispensed with without any formal step being taken.
General constitutional features

System
The UK has a parliamentary system of governance, with the
Westminster Parliament being the supreme law-making body. The
doctrine of supremacy (or sovereignty) of Parliament means that the
courts accept that legislation enacted by Parliament takes precedence
over the common law (essentially, judge-made law as developed
through cases).
Head of state
The head of state is the monarch (currently, Queen Elizabeth II)
who is unelected and who occupies that position by virtue of birth. In
practice, the role of the monarch is largely ceremonial.
Some powers that the Government exercises are derived from
the Royal Prerogative and are exercised in the name of the monarch,
although the monarch remains legally responsible for their exercise.
The Royal Prerogative is what remains of the absolute powers that were
formerly exercised by the monarch and which have not been removed
by Parliament. These powers include matters of national security, the
defence of the realm and the deployment of the armed forces.
Structure
The UK Parliament comprises two separate Houses: the House of
Commons and the House of Lords.
The House of Commons is a representative body, the membership
of which is elected. Certain persons are disqualified from membership
by profession or occupation (for example, full-time judges) or by status
(for instance, persons under the age of 21).
The Speaker is the Chairman of the House of Commons and
carries out his or her duties impartially such as by ruling on procedural
points. By convention, the Prime Minister is a member of the House of
Commons.
The House of Lords is not elected and is not a representative body.

Most members of the House of Lords are life peers appointed under
the Life Peerages Act 1958. Such peers are appointed by the monarch
on the advice of the Prime Minister, who receives advice on who to put
forward from a non-political Appointments Commission.
There is no formal separation of powers in the UK constitution, but
it is possible to identify persons or bodies that make up branches of the
state:
• The executive branch is made up of the monarch, the Prime
Minister and other Government Ministers, the civil service
and members of the police and armed forces.
• The legislative branch is made up of the monarch, the House
of Commons and the House of Lords.
• The judicial branch is made up of the monarch, legally-
qualified judges and magistrates (non-legally-qualified
members of the public).
Although the monarch is part of all three branches, her role is
largely ceremonial. Most of the monarch’s legal powers are exercised
by the Government on her behalf. The monarch is part of the legislative
process because she must give Royal Assent before a bill that has passed
through Parliament becomes an Act of Parliament. The monarch is also
head of the judiciary.
The Constitutional Reform Act 2005 improved the separation
of powers between the executive and the judiciary, in particular by
transferring the Lord Chancellor’s role as the head of the judiciary to the
Lord Chief Justice and creating the Judicial Appointments Committee
as an independent body to ensure that the appointment of judges
is solely on merit. The judiciary prevents the state or the “executive”
from exercising its powers in an unlawful manner. It has developed the
following checks and balances through the common law:
• Residual freedom. A citizen is free to do or say whatever he or
she wishes unless the law (expressed primarily through Acts
of Parliament) clearly states that such an action or statement
is prohibited.
• Actions of the state, including state officials (for example, the
police), must have legal authority.
• Legal disputes should be resolved by the judiciary. A monarch

has no power to decide legal matters by way of arbitrary
rulings (Case of Prohibitions (Prohibitions del Roy) (1607)).
• Habeas corpus and individual liberty. An individual who has
been detained by the state has the right to have the legality
of that detention reviewed by a court. Although the principle
was originally developed through the common law, the
right to liberty is also contained in Article 5 of the European
Convention on Human Rights (ECHR), which now forms part
of UK law pursuant to the Human Rights Act 1998 (HRA98).
• Right to a fair hearing. Although this principle was originally
developed through the common law, the right to a fair trial
is also contained in Article 6 of the ECHR, which now forms
part of UK law pursuant to the HRA98.
• Royal Prerogative. Parliament’s ability to scrutinise actions of
the Government under the Royal Prerogative is limited. One
area in which Parliament can scrutinise the Government’s
actions is international treaties. Following the enactment of
the Constitutional Reform and Governance Act 2010, most
international treaties entered into by the UK in the future will
require ratification by Parliament.
• Judicial review of executive actions. As a result of the doctrine
of Parliamentary supremacy and the UK having no written
constitution, the UK courts do not have the ability to review
the way in which public bodies exercise the powers that
Parliament has conferred on them. Judicial review is the
mechanism by which the courts ensure that public bodies act
within their powers and do not exceed or abuse their powers
General legislative process
Legislation is created by Parliament, which consists of the House
of Commons and the House of Lords. Acts of Parliament apply in all
four countries of the UK. The Scottish Parliament, the Northern Ireland
Assembly and the National Assembly for Wales can only pass laws on
devolved matters that just apply in their countries.
The two types of bill that can be placed before Parliament are public
bills and private bills:
• Public (or Government) bills seek to change the law that
concerns the public at large. Government bills are adopted by
the Cabinet into the Government’s legislative programme.
• Private members’ bills are non-Government bills introduced

by non-ministerial Members of Parliament (MP). These bills
have priority on certain days in each session but can fail for
lack of Parliamentary time. Private bills concern matters of
individual, corporate or local interest and affect particular
persons or localities (for example, a bill authorising a new
railway).
A bill can start in the House of Commons or the House of Lords and
must be approved in the same form by both Houses before becoming an
Act of Parliament. The procedure to be followed for a bill to become an
Act of Parliament is, briefly:
• First reading. This stage is formal. The title of the bill is read
and it is then published.
• Second reading. This stage involves the main debate in the
House of Commons on the general principles of the bill.
• Committee stage. The purpose of this stage is to examine the
bill in detail. Amendments can be made to it at this stage.
• Report stage. If amendments are made to the bill in
committee, a report stage is needed and the House votes on
any amendments. The Speaker can select the amendments to
be subject to debate.
• Third reading. This is the final stage, involving consideration
of the bill as amended. This is the final opportunity for MPs
to vote on the bill.
• Proceedings in the House of Lords. This stage begins after the
third reading in the House of Commons. The procedure is
similar to that in the Commons. If the Lords have amendments
to the bill, it must be sent back to the Commons. In principle,
the bill can go backwards and forwards between the Lords and
the Commons until the proceedings are ended by prorogation.
• Royal Assent. Once Royal Assent is received, a bill becomes
law and is referred to as an Act of Parliament. The Act may
suspend its commencement date, which can be determined by
delegated legislation.
Although a bill must be passed by both Houses, the Lords play
a secondary role. There is a constitutional convention that the House
of Lords will not reject a bill giving effect to a major part of the
democratically elected Government’s legislative programme.
If the House of Lords rejects a bill that has passed the House of
Commons, the bill may still become law under the Parliament Acts of
1911 and 1949.
The judiciary scrutinises, via judicial review, delegated legislation
and the exercise of statutory (and in some limited cases prerogative)
powers by the Government and other public bodies.
Grounds of judicial review

The issue in judicial review proceedings is not whether the decision
was right or wrong, nor whether the court agrees with it, but whether
it was a decision that the decision-maker was lawfully entitled to make.
The following are the basic grounds of challenge:
• Illegality. This arises in the following situations:
– the public body misdirects itself in law, such as by
“getting the law wrong” or asking itself the wrong legal
question;
– the public body exercises a power wrongly, such as by
purporting to act in pursuance of one statutory objective
but applying the wrong legal test under that objective;
– the public body purports to exercise a power that it does
not have. Using this ground, it would be possible to
challenge a decision of a public body that is inconsistent
with an Act of Parliament or delegated legislation; or
– the public body exercises its power for an improper
purpose that is not the purpose for which the particular
power was granted.
• Irrationality/unreasonableness. A decision can be challenged
as irrational or unreasonable in limited circumstances, namely,
if:
– it “is so unreasonable that no reasonable authority could
ever have come to it” (Wednesbury unreasonableness);
or
– the public body, in reaching its decision, took into
account irrelevant matters and/or failed to consider
relevant matters.
Despite attempts to broaden the scope of judicial review, the courts
are very reluctant to challenge decisions as unreasonable. This ground
of appeal implies that the merits of the decision (that is, whether the
public body made the right decision) is not within the scope of review.
It may be easier to establish a claim based on a failure to take proper
account of appropriate considerations than pure unreasonableness. It is
clear that the error must be material to the decision to establish illegality.
The test has been described as being: “whether a consideration had
been omitted which, had account been taken of it, might have caused
the decision-maker to reach a different conclusion” (R v Parliamentary
Commissioner for Administration, ex parte Balchin [1998] 1 PLR 1).
• Procedural impropriety. The ground of procedural unfairness
arises if:
– the public body has not properly observed relevant
procedures such as a requirement to consult on the
proposed measures; or
– the public body has failed to observe the principles of
natural justice, such as by showing (apparent or actual)
bias.
• Legitimate expectations. A potential challenge may be
founded on the basis of breach of a legitimate expectation
in that the public body may, by its own statements and/or
conduct, be required to act in a certain way, where the affected
party has an expectation as to the way in which the public
body will act. A successful judicial review founded on breach
of a legitimate expectation will arise only in a limited number
of cases.
A legitimate expectation may have both substantive and procedural
dimensions, and therefore overlaps with irrationality and procedural
impropriety:
• A legitimate expectation may be substantive where the
appellant has an interest in some benefit that it hopes to
obtain, and fairness may require that expectation to be upheld
if it is shown that the appellant relied on the expectation to his
detriment. The court is generally slow to find a substantive
legitimate expectation.
• A legitimate expectation may arise where the public body
has made a clear representation that it will adopt a particular
procedure and then the public body departs from that
purported procedure.
Judicial review and prerogative powers

Traditionally, the courts do not have power to regulate the way
in which prerogative powers are exercised, even though the existence
and the extent of the prerogative power may be reviewed by the courts.
However, there has been a gradual recognition by the courts that they
can review the exercise of prerogative powers. In CCSU v Minister for
Civil Service ([1983] UKHL6), it was held that the exercise of prerogative
powers was not automatically outside the scope of judicial review. The
only exception was if the power being exercised was not justiciable (that
is, not an appropriate area for the courts to be involved in).
The scope of judicial review of prerogative powers has been the
subject of significant litigation in the context of the UK’s withdrawal
from the EU. On 24 January 2017, the Supreme Court upheld the
judgment and declaration issued by the High Court to the effect that
the government could not issue notice under Article 50 of the Treaty on
European Union to withdraw the UK from the EU by way of the royal
prerogative, and would require authorisation of an Act of Parliament in
order to do so (R (Miller and Santos) (Respondents) v Secretary of State for
Exiting the European Union (Appellant) [2017] UKSC 5). The Supreme Court
in R (Miller) v The Prime Minister, Cherry and others v Advocate General
for Scotland [2019] UKSC 41 unanimously held that the prorogation of
Parliament for five weeks by the Prime Minister was unlawful and that,
therefore, the prorogation was void and of no effect. The Supreme Court
confirmed that the issue was justiciable and that the power to prorogue
Parliament is a prerogative power, however it is not unlimited and
therefore is capable of being subject to judicial scrutiny.
These are essentially areas of high politics. It is the nature of the
power rather than its source that determines its justiciability.
3.4 THE AMERICAN LEGAL SYSTEM

The American system is a “common law” system, which relies
heavily on court precedent in formal adjudications.
The U.S. Constitution establishes a federal system of government. The
constitution gives specific powers to the federal (national) government.
All power not delegated to the federal government remains with the
states. Each of the 50 states has its own state constitution, governmental
structure, legal codes, and judiciary.
The U.S. Constitution establishes the judicial branch of the federal

government and specifies the authority of the federal courts. Federal
courts have exclusive jurisdiction only over certain types of cases, such
as cases involving federal laws, controversies between states, and cases
involving foreign governments. In certain other areas federal courts
share jurisdiction with state courts. For example, both federal and state
courts may decide cases involving parties who live in different states.
State courts have exclusive jurisdiction over the vast majority of cases.
Parties have a right to trial by jury in all criminal and most civil
cases. A jury usually consists of a panel of 12 citizens who hear the
evidence and apply the law stated by the judge to reach a decision based
on the facts as the jury has determined them from the evidence at trial.
However, most legal disputes in the United States are resolved before a
case reaches a jury. They are resolved by legal motion or settlement, not
by trial.
3.4.1 Structure of the Federal Court System

The U.S. Constitution establishes the U.S. Supreme Court and gives
Congress the authority to establish the lower federal courts. Congress
has established two levels of federal courts below the Supreme Court:
the U.S. district courts and the U.S. circuit courts of appeals.
U.S. district courts are the courts of first instance in the federal
system. There are 94 such district courts throughout the nation. At least
one district court is located in each state. District judges sit individually
to hear cases. In addition to district judges, bankruptcy judges (who
hear only bankruptcy cases) and magistrate judges (who perform
many judicial duties under the general supervision of district judges)
are located within the district courts. U.S. circuit courts of appeals are
on the next level. There are 12 of these regional intermediate appellate
courts located in different parts of the country. Panels of three judges
hear appeals from the district courts. A party to a case may appeal as a
matter of right to the circuit court of appeals (except that the government
has no right of appeal in a criminal case if the verdict is “not guilty.”)
These regional circuit courts also hear appeals from decisions of federal
administrative agencies. One non-regional circuit court (the Federal
Circuit) hears appeals in specialized cases such as cases involving patent
laws and claims against the federal government.
At the top of the federal court system is the U.S. Supreme Court,
made up of nine justices who sit together to hear cases. At its discretion,
the U.S. Supreme Court may hear appeals from the federal circuit courts
of appeals as well as the highest state courts if the appeal involves the
U.S. Constitution or federal law.
3.4.2 Structure of State Court Systems

The structure of state court systems varies from state to state. Each
state court system has unique features; however, some generalizations
can be made. Most states have courts of limited jurisdiction presided
over by a single judge who hears minor civil and criminal cases. States
also have general jurisdiction trial courts that are presided over by a
single judge. These trial courts are usually called circuit courts or
superior courts and hear major civil and criminal cases. Some states
have specialized courts that hear only certain kinds of cases such as
traffic or family law cases.
All states have a highest court, usually called a state supreme court,
that serves as an appellate court. Many states also have an intermediate
appellate court called a court of appeals that hears appeals from the trial
court. A party in a case generally has one right of appeal.
3.4.3 Court Administration

The judicial branches of the federal and state governments are
separate from the legislative and executive branches. To insure judicial
independence, the judicial branches of the federal and state governments
control the administration of the courts. Court administration includes
managing court budgets, prescribing rules of trial and appellate
procedure, reviewing judicial discipline matters, offering continuing
educational programs for judges, and studying court performance.
In the federal judiciary, the Judicial

Conference of the United States, made up of
27 members (the Chief Justice of the United Important
States and 26 judges from each geographic An impor-
region of the United States) has overall tant responsibility of
administrative responsibility for the courts the Judicial Confer-
and has primary authority to make policy ence is to recom-
regarding the operation of the judicial branch mend changes in the
of the government. The Judicial Conference rules of procedure
is assisted by a large number of committees used by all federal
made up of federal judges (and sometimes courts.
also state court judges and attorneys) who
study different parts of the federal court
system and make recommendations.
Congress has created three administrative agencies within the
judicial branch. The Administrative Office of the U.S. Courts manages
the day-to-day operations of the courts, including such matters as
payroll, equipment, and supplies. The Federal Judicial Center conducts
educational and training programs for judges and court personnel and
does research in the fields of court operations and administration. The
U.S. Sentencing Commission develops advisory guidelines for federal
judges in imposing criminal sentences.
In most state court systems, the state supreme court has overall
administrative authority over the court system. It is assisted by an
administrative office. The chief justice of the state supreme court usually
appoints the director of the state court administrative office.
3.4.4 Judges
Justices of the U.S. Supreme Court and circuit and district judges
are appointed by the President of the United States if approved by a
majority vote of the U.S. Senate. These justices and judges serve “during
good behavior”— in effect, a life term. Presidents usually nominate
persons to be judges who are members of their own political party.
Persons appointed are usually distinguished lawyers, law professors,
or lower federal court or state court judges. Once these judges are
appointed their salaries cannot be reduced. Federal judges may only be
removed from office through an impeachment process in which charges
are made by the House of Representatives and a trial is conducted by
the Senate. In the entire history of the United States, only a few judges
have been impeached and those removed were found to have committed
serious misconduct. These protections allow federal judges to exercise
independent judgment without political or outside interference or
influence.
The methods of selecting state judges vary from state to state and
are often different within a state, depending on the type of court. The
most common selection systems are by commission nomination and
by popular election. In the commission nomination system, judges
are appointed by the governor (the state’s chief executive) who must
choose from a list of candidates selected by an independent commission
made up of lawyers, legislators, lay citizens, and sometimes judges. In
many states judges are selected by popular election. These elections
may be partisan or non-partisan. Candidates for judicial appointment
or election must meet certain qualifications, such as being a practicing
lawyer for a certain number of years. With very few exceptions, state
judges serve specified, renewable terms. All states have procedures
governing judicial conduct, discipline, and removal.
In both the federal and state systems, judicial candidates are almost
always lawyers with many years of experience. There is no specific course
of training for judges and no examination. Some states require judges to
attend continuing education programs to learn about developments in
the law. Both the federal and state court systems offer beginning and
continuing education programs for judges.
3.4.5 Prosecutors
Prosecutors in the federal system are part of the U.S. Department
of Justice in the executive branch. The Attorney General of the United
States, who heads the Department of Justice, is appointed by the
President with Senate confirmation. The chief prosecutors in the federal
court districts are called U.S. attorneys and are also appointed by the
President with Senate confirmation. Within the Department of Justice is
the Federal Bureau of Investigation, which investigates crimes against
the United States.
Each state also has an attorney general in the state executive branch
who is usually elected by the citizens of that state. There are also
prosecutors in different regions of the state, called state’s attorneys or
district attorneys. These prosecutors are also usually elected.
3.4.6 Lawyers
The U.S. legal system uses the adversarial process. Lawyers are
essential to this process. Lawyers are responsible for presenting their
clients’ evidence and legal arguments to the court. Based on the lawyers’
presentations, a trial judge or jury determines the facts and applies the
law to reach a decision before judgment is entered.
Individuals are free to represent themselves in American courts, but
lawyers are often necessary to present cases effectively. An individual
who cannot afford to hire a lawyer may attempt to obtain one through
a local legal aid society. Persons accused of crimes who cannot afford a
lawyer are represented by a court-appointed attorney or by federal or
state public defender offices.
American lawyers are licensed by the individual states in which
they practice law. There is no national authority that licenses lawyers.
Most states require applicants to hold a law degree (Juris Doctor) from
an accredited law school. An American law degree is a postgraduate
degree awarded at the end of a three-year course of study. (Normally
individuals complete four years of college/university before attending
law school). Also, most states require that applicants for a license to
practice law pass a written bar examination and meet certain standards
of character. Some states allow lawyers to become bar members based
on membership in another state’s bar. All states provide for out-of-
state lawyers to practice in the state in a particular case under certain
conditions. Lawyers can engage in any kind of practice. Although there
is no formal distinction among types of legal practice, there is much
informal specialization.
3.5 CIVIL LAW AND COMMON LAW

CONTRASTED
Civil law originated in the late Roman Empire with the codification
of Roman law by Justinian in the sixth century. This greatly influenced
jurists in continental Europe and civil law became the main source of
law there from the Middle Ages, eventually evolving into the codified
legal regimes encountered today. Civil law was exported by Europe’s
colonial powers, notably France, Portugal, and Spain, to most of Latin
America, as well as to parts of Africa and Asia. There are now about 150
civil-law jurisdictions.
Civil law, however, did not take hold in England, which developed
a distinct legal tradition known as the common law. This emerged
following the Norman Conquest of 1066 to replace the less formal Anglo-
Saxon legal regime. Common law developed out of a need for courts
to interpret writs and orders issued by the monarch which were not
sufficiently wide enough in scope to cover a multitude of eventualities.
This practice continued when parliament replaced the monarch as the
main source of legislation.
Common law traditions are found in all corners of the world by
virtue of Britain’s expanding global influence from the 17th century. The
United States, Canada, Australia, New Zealand, Ireland and India are
all examples of common law countries, as are other jurisdictions once
British colonies or territories. Common-law countries now number
about 80.
Legal systems around the world vary greatly, but they usually
follow civil law or common law. In common law, past legal precedents
or judicial rulings are used to decide cases at hand. Under civil law,
codified statutes and ordinances rule the land. Some countries like
South Africa use a combination of civil and common law.
3.5.1 Comparison Chart

Civil Law Common Law
Legal System Legal system originating in Legal system characterized
Europe whose most prevalent by case law, which is law
feature is that its core principles developed by judges through
are codified into a referable sys- decisions of courts and simi-
tem which serves as the primary lar tribunals.
source of law.
Role of judges Chief investigator; makes rul- Makes rulings; sets prec-
ings, usually non-binding to 3rd edent; referee between law-
parties. In a civil law system, yers.Judges decide matters
the judge’s role is to establish of law and, where a jury is
the facts of the case and to apply absent, they also find facts.
the provisions of the applicable Most judges rarely inquire
code. Though the judge often extensively into matters
brings the formal charge. before them, instead relying
on arguments presented by
the part
Countries Spain, China, Japan, Germany, United States, England, Aus-

most African nations, all South tralia, Canada, India
American nations (except Guy-
ana), most of Europe
Constitution Always Not always
Precedent Only used to determine admin- Used to rule on future or
istrative of constitutional court present cases
matters
Role of jury In cases of civil law, the opinion Juries are comprised only of
of the jury may not have to be laypersons — never judges.
unanimous. Laws vary by state In the U.S., juries are em-
and country. Juries are present ployed in both civil and crim-
almost exclusively in criminal inal cases. Their function is
cases; virtually never involved to weigh evidence presented
in civil actions. Judges ensure to them, and to find the facts
law prevails over passion. and apply the law.
History The civil law tradition devel- Common law systems have
oped in continental Europe at evolved primarily in Eng-
the same time and was applied land and its former colonies,
in the colonies of European including all but one US
imperial powers such as Spain jurisdiction and all but one
and Portugal. Canadian jurisdiction. For
the most part, the English-
speaking world operates
under common law.
Sources of 1. Constitution 2. Legislation – 1. Constitution (not in the
Law statutes and subsidiary legisla- UK) 2. Legislation – Statutes
tion 3. Custom 4. International and subsidiary legislation 3.
Law 5. [Nota bene: It may be Judicial precedent – common
argued that judicial precedents law and equity 4. Custom 5.
and conventions also function Convention 6. International
within Continental systems, but Law
they are not generally recogn
Type of argu- Inquisitorial. Judges, not law- Adversarial. Lawyers ask
ment and role yers, ask questions and demand questions of witnesses,
of lawyers evidence. Lawyers present argu- demand production of
ments based on the evidence the evidence, and present cases
court finds. based on the evidence they
have gathered.
Evidence Tak- Evidence demands are within Widely understood to be

ing the sovereign inquisitorial func- a necessary part of the
tion of the court — not within litigants’ effective pursuit or
the lawyers’ role. As such, defense of a claim. Litigants
“discovery” by foreign attorneys are given wide latitude in US
is dimly viewed, and can even jurisdictions, but more lim-
lead to criminal sanctions where ited outside the US. In any
the court’s role is usurp event, the litigants and their
lawyers undertake to a
Evolution Both systems have similar Both systems have similar
sources of law- both have sources of law- both have
statutes and both have case law, statutes and both have case
they approach regulation and law, they approach regula-
resolve issues in different ways, tion and resolve issues in
from different perspectives different ways, from different
perspectives
3.5.2 Seven Key Differences between Common Law and

Civil Law
Many people don’t give much thought to the difference between civil
law and common law until some sort of legal issues arises. At that point,
they begin to wonder why their legal counsels are making references to
one or the other. Aren’t they all pretty much the same? The fact is that
there are specific differences between common law and civil law. There
are also some similarities that can confuse those not familiar with either
type of law. So let’s discuss the Seven Key Differences Between Common
Law and Civil Law.
In many countries around the world, both types of law come into
play depending on the nature of what has taken place. While there are
likely to be individual statutes and precedents that vary somewhat from
country to country, the aspects that define common law and civil law
remain much the same wherever you happen to be.
Here are some of the key differences that you are likely to come
across.
1. The Role of Legal Precedents

One difference has to do with the process of setting legal precedents.
This is a function that is associated with common law. The goal is to
evaluate a case in the light of what occurred and how those actions
relate to laws that are already in place.
Attorneys will argue for or against the relevancy of one or more

precedents when pleading their cases. They may also introduce
recognized legal scholars into the proceedings as a means of promoting
a specific precedent and its application to the case at hand, although the
influence of legal scholars is somewhat limited.
The court may or may not consider a specific precedent as being
relevant to the case. If the court does determine that it’s relevant, the
outcome of the present case may be applied to similar cases in the future.
2. Precedents Verses Laws Codified By Legislation

While some laws are enacted based on past court rulings, it’s also
possible for laws to come into being using the legislative process. This is
where the concept of civil law comes into play.
Elected or appointed representatives prepare, evaluate, and
ultimately vote on whether a new law will be passed and considered
binding in the future. This results in a written constitution of laws
that apply to everyone living within that jurisdiction. This is generally
considered a characteristic of civil law and leaves much less room for
interpretation.
In a civil case, the role of the lawyer is to protect the rights of his
or her client, either by offering a prosecution or a defense. Civil law
has to do with legal actions that are not considered criminal in and of
themselves. However, it’s sometimes possible to file a civil action against
an individual or an entity after a criminal conviction takes place, or even
if the attempt at criminal prosecution is not successful.
3. Legal Actions Related To Criminal Activity

Aspects of common law govern actions that are defined as crimes by
current laws. This would include cases where assault, theft, murder, or
other actions currently considered crimes are the focus. The ruling in the
case is based on whether or not the weight of evidence indicates guilt.
The deciding party in a criminal case may be a judge or a jury. Based on
the verdict rendered by the jury, the judge will then pass sentence based
on past legal precedents.
Within common law, judicial actions are considered binding.
That’s because they are made based on precedent, the ability to present
reasonable doubt or not, and in many countries a presumption of
innocence unless it’s possible to prove otherwise.
4. Legal Actions Related To Claims of Negligence

Civil law comes into play when there are claims of negligence or
other injuries that are not related to alleged criminal activities. This
could include cases that involve personal injury, damage to property, or
other negative effects that occur due to the intentional or unintentional
negligent actions allegedly taken by the accused.
With civil cases, the outcome focuses solely on the plaintiff and the
defendant. For example, if there’s a dispute about the terms governing an
offshore term deposit account, the court’s ruling will only affect the bank
where the account is established and the account holder. That outcome
does not impact any third party. It’s true that the outcome could create
the grounds for new judicial or legislative action that results in a law.
However, the award granted, or decision made by the court only applies
to this specific case and does not establish specific punitive damages for
any future cases.
5. Judicial Decisions In General

Judges and courts in many nations make decisions or pass judgments
based on a variety of factors. Those who function within the realm of
the criminal courts rely heavily on the binding actions of past criminal
courts. They are also sworn to uphold current criminal laws. The same
court or a higher court may overturn the decision. There is also some
potential for the decision to be overturned by legislation.
Within a civil court, precedents do carry some weight, as do the
opinions of legal scholars. What’s different is the judge is not necessarily
bound to follow a narrow interpretation of current laws. The focus is more
on how those laws apply in the case at hand. In rendering a decision, the
court may establish the groundwork for eventually altering, expanding,
or otherwise changing a law that has been in effect for some time. There
is also often an appeals process that makes it possible for another court
to review and possibly reverse the lower court’s decision.
To sum up the differences, common law does not necessarily rely
on codified laws or a written constitution. Civil law is typically codified
within current laws or within a constitution.
Common law often focuses on alleged criminal activity, while civil
law is more likely to deal with damages or injuries related to negligence.
Decisions within common law are considered binding in general, while
the decisions in a civil case apply to that case only.
6. Contracts and the Laws Governing

Them
Contracts may also serve as the basis for Important
a criminal or civil case. In general, common
law applies when the terms of agreement or Few juris-
contract are subject to private laws. There dictions are purely
are usually few provisions implied by law using one system
within those agreements. The terms are or the other, with
usually specific. common law juris-
dictions reflecting
With a contract that includes a wider aspects of civil law
range of implied provisions rather than practice, and vice
expressed provisions, settling a dispute is versa, often depend-
more likely to involve pursuing a civil case. ing on historical
legacies. South
Much depends on how the court believes
Africa, for example,
those provisions align with the implied with its British and
application of current laws. This can be Dutch influences,
especially helpful to understand if you’re practises a mixture
pursing a case that involves some sort of of the two.
offshore account, since a review of financial
laws and how they apply to the contract will
be essential.
7. Employ Competent Legal Help

Remember that even if you’re not sure how to seek reparations
through the legal system, your attorney can evaluate the merits of your
case and determine the most practical way to pursue it. In the best-case
scenario, the outcome will be in your favor.
3.6 THE SOCIALIST LEGAL TRADITION

Soviet law, also called socialist law, law developed in Russia after
the communist seizure of power in 1917 and imposed throughout the
Soviet Union in the 1920s. After World War II, the Soviet legal model
also was imposed on Soviet-dominated regimes in eastern and central
Europe. Later, ruling communist parties in China, Cuba, North Korea,
and Vietnam adopted variations of Soviet law. Soviet law, which
changed radically during its more than 70 years of development in the
Soviet Union, revived certain features of earlier tsarist law, shared key
elements with the law of other dictatorships, and introduced public
ownership of the means of production and subordination of the legal

system to the Soviet Communist Party.
3.6.1 History
Many basic features of Soviet law came into effect very soon after the
Russian Revolution of 1917. The regime immediately placed itself above
the law and gave the head of the Communist Party powers similar to
those enjoyed for centuries by the tsars. The new government replaced
elected officials with its own leaders; it decreed that suspected enemies of
the revolution should be eliminated without trials; it expropriated land,
banks, insurance companies, and large factories; and it promulgated its
ideology and suppressed opposing speech. In important ways, however,
the legal system of the immediate postrevolutionary period differed
from Soviet law as it developed later. The ideology imposed by the party
was hostile to law, proclaiming, on the authority of Karl Marx, that the
state and all its institutions (including legal ones) would “wither away”
after the communist revolution. Accordingly, the new regime destroyed
the prerevolutionary legal structure of the market economy, including
property, contract, and business law. In 1921 Soviet communist leader
Vladimir Lenin introduced the New Economic Policy, which restored the
legal basis necessary for the economy to function. He ordered that a civil
code based upon western European civil law be drafted and enacted.
The code allowed the formation of business entities and protected
basic contract and property rights. Other legislation established a court
system to enforce these rights and to try criminal cases.
The New Economic Policy was ended after Joseph Stalin became
leader of the Soviet Union and asserted total central control over the
economy. The Soviet government nationalized the remaining private
businesses and forced peasants onto party-controlled collective farms
(kolkhozy). Soviet law developed a new role as an instrument for the
implementation of party policy and national economic planning.
Although political repression had begun immediately after the
revolution and had continued afterward, it returned on an extensive scale
in the 1930s, when large numbers of suspected political opponents and
peasants who resisted forced grain requisition and farm collectivization
were executed or sent to forced-labour camps. Some of this repression
was accomplished through the regular courts, but much of it occurred
through the state security apparatus, which had the authority to
imprison anyone without a trial. In high-profile, carefully scripted purge
trials, perceived political opponents of the government were convicted
of heinous offenses that they had not committed. With the aid of his
chief legal adviser, Andrey Vyshinsky, Stalin abandoned traditional
Marxist ideology and announced that a strong Soviet state and legal
system were necessary. In 1936 he promulgated a new constitution and
proclaimed a new ideology, portraying Soviet law as a just system that
would bring about an orderly transformation of society to a communist
utopia. Legislation that contradicted this ideology was kept secret,
and Stalin and his successors greatly restricted foreign travel by Soviet
citizens to prevent exposure to free societies.
After Stalin’s death in 1953, the new Soviet leader, Nikita
Khrushchev, set out to rectify some of the Stalinist legal system’s worst
features. Many who had been condemned to labour camps were formally
rehabilitated; freer speech was allowed; and decentralized regulation
of the economy was attempted. After Khrushchev’s ouster in 1964, his
successors restored centralized legal control of the economy and again
limited freedom of speech, but through perversion of the legal system
rather than by other means. They fired editors of liberal publications
and committed dissidents to insane asylums or imprisoned them on
false criminal charges.
The liberalization of the Soviet economy and political system by
Mikhail Gorbachev in the mid-1980s undermined some of the basic
elements of the Soviet legal system. The use of false criminal charges
and psychiatric diagnoses to control dissidents was largely halted;
partially free elections and some free speech were allowed; and private
businesses were legalized. As the Soviet legal system disintegrated, the
Soviet Union weakened. The Soviet republics and the satellite states
of central and eastern Europe escaped from Soviet control and soon
rejected Soviet law. The countries that retained systems based on Soviet
law—for example, Belarus, China, Cuba, North Korea, Turkmenistan,
and Vietnam—continued the arbitrary imprisonment of dissidents and
eschewed open and fair democratic elections. With the exception of
North Korea, however, these countries at least partially repealed the ban
on private businesses. The prevailing ideology in these countries turned
from Marxism to nationalism, and as a consequence their legal systems
began to lose much of their Soviet flavour and became much more like
the legal systems of ordinary dictatorial regimes.
3.6.2 Principles and Policies

Law subordinate to the Communist Party

Excluding the brief period of experimentation with decentralization
during the Khrushchev era, from the time of the revolution until
Gorbachev’s reforms, all aspects of the Soviet legal system were
effectively subordinate to the leadership of the Soviet Communist Party.
Legislation was debated and approved by top party leaders and then
transmitted to the Supreme Soviet, the Soviet Union’s legislature, for
unanimous rubber-stamp approval. The court system was designed to
ensure party control of judicial decisions at all levels. Juries—which had
shown considerable independence under the tsars—were abolished,
replaced by a trial court consisting of a judge, who was selected by
party officials and who almost always was a party member, and two
carefully chosen laypersons, who were under pressure to agree with
the judge. The system was designed to give the outward appearance
of popular participation without actually involving it. Control over
judicial decisions also was exercised by allowing easy appeals through
higher judicial levels to the supreme courts of the Soviet republics and
the Supreme Court of the Soviet Union. Cases of political importance
were subject to so-called “telephone law”—legal decisions dictated
by telephone calls from party officials to judges. The centuries-old
Russian institution of the procuracy was revived, creating a nationwide
organization that was responsible for ensuring the enforcement of the
laws and regulations and that reported directly to the party leadership.
Property
Public ownership of the means of production was a key feature
that distinguished Soviet law from the law of most other dictatorial
police states. The law distinguished between socialist property and
individually owned private property. Socialist property included two
subcategories—state property and collective, or cooperative, property—
both of which were subject to virtually identical regimes of central
economic planning. The system of private property included consumer
goods, automobiles, houses, and agricultural implements for the very
limited private farming that was allowed. The established property
scheme formed the basis for propaganda claiming that Marx’s socialist
ideals had been realized. It also facilitated the long-term maintenance
of power and privilege. Because of the state’s monopoly on property,
private institutions could not arise to challenge the regime. The
government confiscated all houses of worship and made them available
for use only to those religious organizations that posed no threat to the
state. The state also owned all mass-media outlets.

From the time of the First Five-Year Plan of the late 1920s until
the government’s collapse, the Soviet Union had a centrally planned
economy, the main goal of which was to increase the military power of
the state. Although there were limited market elements (e.g., consumers
were free to choose the goods and services on which to spend their
money), state enterprises became the predominant form of organization
of production and distribution. General plans were refined into specific
orders to these enterprises for production and distribution of goods and
services. These orders in turn were implemented by contracts that state
enterprises were required to conclude with one another. A set of state
arbitration tribunals allocated responsibility when planned contracts
were not fulfilled, and collective farms were forced to make and fulfill
contracts for the delivery of most of their production to the state at
beneath-local-market prices.
Labour and social benefits

Soviet law recognized three distinct categories of employees:
workers for state enterprises, employees of collective farms, and
inmates in labour camps. Under the Labour Codes, employees at state
enterprises enjoyed protection against arbitrary discipline or discharge.
Except during and immediately after World War II, state-enterprise
employees also had the right to change jobs. Restrictions on residence
permits, however, made it difficult for workers to move to major urban
centres in search of employment. Employees in state enterprises were
represented by weak, party-controlled “pseudounions,” and there
was no legally recognized right to strike. Peasants on collective farms
were long denied the identity documents they needed for moving to
urban areas, were not protected by the labour code, and did not possess
(until 1965) even the legal right to representation by pseudounions. The
peasants thus reverted to a legal position akin to the serfdom that had
existed in Russia until the mid-19th century. Labour-camp inmates, who
numbered in the millions, had essentially no enforceable legal rights.
Under Soviet law, status, rather than wealth or cash income,
determined living standards. A large proportion of most Soviet citizens’
real income consisted of benefits directly allocated by the state. Secret
laws and regulations provided for lavish benefits for the nomenklatura—
the ruling elite at the national and local level. These persons received
comfortable apartments, the use of state vacation facilities, automobiles
with drivers, medical care at secret high-quality clinics, preferred
admission of family members to universities, access to generally

unavailable food and consumer goods at low prices, possibilities for
travel abroad, and generous retirement pensions. However, they could
lose these privileges at any time if they were suspected of disloyalty to
the regime. Ordinary urban residents received housing from the state,
but it was of lower quality and often required many years on waiting
lists; they received free medical care, but it was of inferior quality; their
children could receive free higher education, but only by performing
well on entrance examinations or by bribing examiners; and their
pensions were at a subsistence level. Collective-farm workers received
free medical care but for most of the Soviet period had no right to state
pensions. Labour-camp inmates often died of starvation or disease; at
most they received what was necessary to keep them healthy enough
to enable the camps to meet the production quotas assigned under the
national economic plan.
Artistic creation and invention

Unlike market economies, which provide copyright and patent
incentives to encourage creative efforts, the Soviet economy relied
almost entirely on planned allocations of funds and tasks. Leaders
realized that a strong scientific research infrastructure was an essential
component of the militarized economy. Although resources were
distributed to research institutes rather than to competing research
proposals, the results were excellent in many areas of pure science and
in some areas of applied science and engineering. Since no market other
than the state market existed for inventions, however, areas neglected
by planners (e.g., computers and electronics) lagged far behind.
Publishing was monopolized by the state and subject to state planning;
most works were produced by employees of state-controlled media
or by authors working under contract to the state media. An effective
censorship system ensured that works not meeting ideological criteria
went unpublished.
3.6.3 Family Law

Almost immediately after the communist seizure of power, Soviet
family law was completely secularized. Divorce became possible by
unilateral declaration of husband or wife, and women were free to
obtain abortions. Under Stalin, highly conservative legislation made
divorce more difficult, barred paternity suits, and outlawed most
abortions. After his death, however, these restrictions were relaxed, and
a pattern of family law was created that did not differ significantly from
that found in western Europe.
3.6.4 Criminal lAw

From the revolution until the late 1930s, most of the repression of
perceived enemies of the revolution was done largely outside the criminal-
justice system; thereafter, it occurred mainly through the established
judicial system. Under Stalin, numerous “counterrevolutionary”
offenses carrying severe punishments were added to the criminal
code. After the nationalization of private enterprises, engaging in
private business became a serious offense. The criminal law was used
to suppress religious groups that were not subservient to the state.
Dissidents, particularly those who dared to publish their works abroad,
were punished for the crime of “anti-Soviet agitation and propaganda.”
Also, starting in the 1960s, dissidents were often punished for ordinary
crimes under fabricated charges.
3.6.5 Criminal Procedure

Criminal procedure was weighted heavily in favour of the state
and party. Although the system generally followed the continental
European model, which called for extensive preliminary investigation,
the investigator in cases of serious crimes was not a judicial official, as
in western Europe, but instead was an official of the procuracy, which
also was in charge of prosecution. The investigator could hold a suspect
without contact with legal counsel for months. From time to time, high
party officials initiated campaigns against particular types of crimes,
telling prosecutors whom to prosecute and forcing the courts to convict
defendants. Starting in the late 1940s, there was severe pressure from the
party hierarchy to secure a 100 percent conviction rate, with the result
that thereafter there were almost no acquittals.
Legal profession
From the 1920s through the ’40s, world war, civil war, and purges
greatly reduced the ranks of trained legal personnel. Judges and
prosecutors usually had little or no legal training, and job turnover was
high. Beginning in the 1950s, law schools began to produce substantial
quantities of well-trained graduates, and by the 1970s virtually all legal
posts were held by persons with law degrees. Because any deviation
from party policy or failure to carry out party orders could ruin their
careers, officers of the court tended to be highly subservient to the

wishes of the state.
3.7 THE ISLAMIC LEGAL TRADITION

The Islamic legal system consists of legal institutions, determinations,
and practices that span a period of over fourteen hundred years arising
from a wide variety of cultural and geographic contexts that are as
diverse as Arabia, Egypt, Persia, Bukhara, Turkey, Nigeria, Mauritania,
Mali, Indonesia, or India. Despite the contextual and historical
contingencies that constitute the complex reality of Islamic law, rather
paradoxically, the Islamic legal legacy has been the subject of widespread
and stubbornly persistent stereotypes and over-simplifications, and
its legacy is highly contested and grossly understudied at the same
time. Whether espoused by Muslim or non-Muslim scholars, highly
simplified assumptions about Islamic law, such as the belief that Islamic
legal doctrine stopped developing in the 4th/10th century, the presumed
sacredness and immutability of the legal system, or the phenomenon
of so-called Qadi justice, are, to a large extent, products of turbulent
political histories that contested and transformed Islamic law (or what is
commonly referred to as Shari’a) into a cultural and ideological symbol.
As part of the legacies of colonialism and modernity, Islamic law was
then transformed into a symbolic construct of highly contested issues
such as legitimacy, authenticity, cultural autonomy, or traditionalism,
reactionism, or religious oppression. Intellectually, there is a continuing
tendency to treat Shari’a law as if it holds the keys to unlocking the
mysteries of the Muslim heart and mind, or alternatively, as if it is
entirely irrelevant to the formation and dynamics of Muslim societies. In
all cases, however, because of the disproportionately politicized context
of the field, Islamic legal studies remains largely undeveloped, and the
discipline is plagued by inadequate scholarship, especially in the field of
comparative legal studies. It is important to stress the point because, for
all the generalizations one often encounters in the secondary literature
on Islamic law, the reality is that considering the richness of the legal
tradition, our knowledge of the institutions, mechanisms, and micro-
dynamics, discourses, and determinations of Islamic law in various
places and times is very limited.
3.7.1 The Difference between Islamic Law and Muslim

Law
Not all legal systems or rules followed by Muslims are part of the
Islamic legal tradition, but at the same time, the boundaries of Islamic
law are far more contested and negotiable than any fundamentalist or
essentialist approach may be willing to admit. Part of what makes this
issue particularly challenging is that, inescapably, it involves judgments
as to the legitimacy and authenticity of what is Islamic and what is
not necessarily so. But more critically, the differentiation cannot be
intelligibly addressed unless one takes full account of the epistemology
and philosophy of Islamic jurisprudence, or the rules of normativity,
obligation, and authority, and the processes of inclusion and exclusion
in Islamic legal practice and history. Although Islamic law grew out of
the normative teachings of the Prophet Muhammad and his disciples,
the first generations of Muslim jurists borrowed and integrated legal
practices from several sources including Persia, Mesopotamia, Egypt
and other Roman provinces, Yemen and Arabia, and Jewish law. But
at the same time, many existing and actual customary or executive
administrative practices prevalent in pre-modern Muslim societies
and polities were not integrated or recognized as being part of, or even
consistent with, Islamic law or Islamic normative values.
Distinguishing Islamic from Muslim law has only become more
elusive and challenging in post-colonial modern-day Muslim societies.
Most contemporary Muslim countries adopted either the French-based
Civil law system or some version of the British Common law system
and limited the application of Islamic law to personal law matters,
particularly in the fields of inheritance and family law. In addition, in
response to domestic political pressure, several Muslim countries in the
1970’s and 1980’s attempted to Islamize their legal systems by amending
commercial or criminal laws in order to make them more consistent
with purported Islamic legal doctrine. The fact remains, however, that
the nature of the connection or relationship of any of these purportedly
Islamically-based or Islamized laws to the Islamic legal tradition remains
debatable. Islamic legal doctrine was grafted onto what structurally and
institutionally, as well as epistemologically, were legal systems borrowed
and transplanted from the West. Practically in every Muslim country,
the complex institutional structures and processes of the Islamic legal
system, especially in the 19th century, were systematically dismantled
and replaced not just by Western legal systems but, more importantly,
by the legal cultures of a number of Western colonial powers.
3.7.2 The Sources of Islamic Law

It is important to distinguish the formal sources of law in the Islamic
legal tradition from what is often called the practical sources of law.
Formal sources of law are an ideological construct—they are the ultimate
foundations invoked by jurists and judges as the basis of legal legitimacy
and authority. The practical sources, however, are the actual premises
and processes utilized in legal practice in the process of producing
positive rules and commandments. In theory, the foundations of all
law in Islamic jurisprudence are the following: the Qur’an, the Sunna
(the tradition of the Prophet Muhammad and his companions), qiyas
(analogical or deductive reasoning) and ‘ijma (consensus or the overall
agreement of Muslim jurists). In contrast to mainstream Sunni Islam,
Shi’i jurisprudence, as well as a minority of Sunni jurists, recognizes
reason (instead of qiyas) as a foundational source of law. These four
are legitimating sources, but the practical sources of law include an
array of conceptual tools that greatly expand the venues of the legal
determination. For instance, practical sources include presumptions
of continuity (istishab) and the imperative of following precedents
(taqlid), legal rationalizations for breaking with precedent and de novo
determinations (ijtihad), application of customary practices (‘urf and
‘adah), judgments in equity, equitable relief, and necessity (istislah,
haja, darura, etc.), and in some cases, the pursuit or the protection of
public interests or public policies (masalih mursala and sadd al-thara’i’
wa al-mafasid). These and other practical jurisprudential sources were
not employed as legal tropes in a lawless application of so-called Qadi
justice. In fact, sophisticated conceptual frameworks were developed to
regulate the application of the various jurisprudential tools employed in
the process of legal determination. These conceptual frameworks were
not only intended to distinguish legitimate and authoritative uses of
legal tools, but collectively, they were designed to bolster accountability,
predictability, and the principle of rule of law.
Being the ultimate sources of legitimacy, the formal sources of
law do not play a solely symbolic role in Islamic jurisprudence. Many
legal debates and determinations originated or were derived directly
from the textual narrative of the Qur’an and Sunna. Nevertheless, it
would be erroneous to assume, as many fundamentalists tend to do,
that Islamic law is a literalist explication or enunciation of the text of
the Qur’an and Sunna. Only very limited portions of the Qur’an can be
said to contain specific positive legal commandments or prohibitions.
Much of the Qur’anic discourse, however, does have compelling
normative connotations that were extensively explored and debated in

the classical juristic tradition. Muslim scholars developed an extensive
literature on Qur’anic exegesis and legal hermeneutics as well as a
body of work (known as ahkam al-Qur’an) exploring the ethical and
legal implications of the Qur’anic discourse. Moreover, there is a
classical tradition of disputations and debates on what is known as the
‘occasions of revelation’ (asbab al-nuzul), which deals with the context
or circumstances that surrounded the revelation of particular Qur’anic
verses or chapters, and on the critical issue of abrogation (naskh), or
which Qur’anic prescriptions and commandments, if any, were nullified
or voided during the time of the Prophet.
Similar issues relating to historical context, abrogation, and
hermeneutics are dealt with in the juristic treatment of the legacy of the
Prophet and his companions and disciples. However, in contrast to the
juristic discourses on the Qur’an, there are extensive classical debates
on historicity or authenticity of the hadith (oral traditions attributed to
the Prophet) and the Sunna (historical narratives typically about the
Prophet but also his companions). While Muslim jurists agreed that
the authenticity of the Qur’an, as God’s revealed word, is beyond any
doubt, classical jurists recognized that many of the traditions attributed
to the Prophet were apocryphal. In this context, however, Muslims
jurists did not just focus on whether a particular report was authentic or
a fabrication, but on the extent or degree of reliability and the attendant
legal consequences. Importantly, Muslim jurists distinguished between
the reliability and normativity of traditions. Even if a tradition proved
to be authentic, this did not necessarily mean that it was normatively
binding because most jurists differentiated between the Prophet’s sacred
and temporal roles. Not everything the Prophet said or did created
normative obligations upon Muslims. Part of the challenge for Muslim
jurists was to ascertain when his statements and actions were intended
to create a legal obligation or duty (taklif), and when they were not
meant to have any normative weight.
3.7.3 The Nature and Purpose of Islamic Law

As an essential point of departure, it is important to underscore
that in jurisprudential theory, the ultimate point of Shari’a is to serve
the well-being or achieve the welfare of people (tahqiq masalih al-
‘ibad). The word Shari’a, which many very often erroneously equate
with Islamic law, means the Way of God and the pathway of goodness,
and the objective of Shari’a is not necessarily the compliance with the
commands of God for their own sake. Such compliance is a means to an

end—the serving of the physical and spiritual welfare and well-being
of people. Significantly, in Islamic legal theory, God communicates
God’s Way (the Shari’a) through what is known as the dalil (pl. adillah).
The dalil means the indicator, mark, guide, or evidence, and in Islamic
legal theory, it is the fundamental building block of the search for the
Divine Will and guidance. The most obvious type of indicator is an
authoritative text (sing. nass Shar’i or pl. al-nusus al-Shar’iyya), such
as the Qur’an, but Muslim jurists also recognized that God’s wisdom is
manifested through a vast matrix of indicators found in God’s physical
and metaphysical creation. Hence, other than texts, God’s signs or
indicators could manifest themselves through reason and rationality
(‘aql and ra’y), intuitions (fitrah), and human custom and practice (‘urf
and ‘adah). Especially in early Islam, which of these could legitimately
be counted as avenues to God’s Will and to what extent, were hotly
debated issues.
In Islamic jurisprudence, the diversity and complexity of the Divine
indicators are considered part of the functionality and suitability of
Islamic law for all times and places. The fact that the indicators are not
typically precise, deterministic, or uni-dimensional allows jurists to
read the indicators in light of the demands of time and place. So, for
example, it is often noted that one of the founding fathers of Islamic
jurisprudence, al-Shafi’i (d. 204/820) had one set of legal opinions that he
thought properly applied in Iraq, but changed his positions and rulings
when he moved to Egypt to account for the changed circumstances and
social differences between the two regions. The same idea is embodied
by the Islamic legal maxim: “It may not be denied that laws will change
with the change of circumstances” (la yunkar taghayyur al-ahkam bi
taghayyur al-zaman wa al-ahwal).
One of the most important aspects of the epistemological paradigm
upon which Islamic jurisprudence was built was the presumption that
on most matters, the Divine Will is unattainable, and even if attainable,
no person or institution has the authority to claim certitude in realizing
this Will. This is why the classical jurists rarely spoke in terms of legal
certainties (yaqin and qat’). Rather, as is apparent in the linguistic
practices of the classical juristic culture, Muslim jurists for the most
part spoke in terms of probabilities or in terms of the preponderance
of evidence and belief (ghalabat al-zann). Muslim jurists emphasized
that only God possesses perfect knowledge – human knowledge in legal
matters is tentative or even speculative; it must rely on the weighing of
competing factors and the assertion of judgment based on an assessment

of the balance of evidence on any given matter. So, for example, Muslim
jurists developed a rigorous field of analytical jurisprudence known
as tarjih, which dealt with the methodological principles according to
which jurists would investigate, assign relative weight, and balance
conflicting evidence in order to reach a preponderance of belief about
potentially correct determinations.
Contemporary fundamentalist and essentialistic orientations
imagine Islamic law to be highly deterministic and casuistic, but this
is in sharp contrast to the epistemology and institutions of the Islamic
legal tradition that supported the existence of multiple equally orthodox
and authoritative legal schools of thought, all of which are valid
representations of the Divine Will. Indeed, the Islamic legal tradition
was founded on a markedly pluralistic, discursive, and exploratory
ethos that became the very heart of its distinctive character. According
to classical legal reasoning, no one jurist, institution, or juristic tradition
may have an exclusive claim over the Divine truth, and hence, the state
does not have the authority to recognize the orthodoxy of one school of
thought to the exclusion of all others. While Shari’a is Divine, fiqh (the
human understanding of Shari’a) was recognized to be only potentially
so, and it is the distinction between Shari’a and fiqh that fueled and
legitimated the practice of legal pluralism in Islamic history.
3.7.4 The Difference between Shari’a and Fiqh

The conceptual distinction between Shari’a and fiqh was the result
of recognizing the limitations of human agency, and also a reflection of
the Islamic dogma that perfection belongs only to God. While Shari’a
was seen as an abstract ideal, every human effort at understanding or
implementing this ideal was considered necessarily imperfect. In theory,
Muslim jurists agreed that even if a jurist’s determination is ultimately
wrong, God will not hold such a jurist liable as long as he exerted due
diligence in searching for the right answer. According to one group of
legal theorists, those who are ultimately proven to be wrong will still
be rewarded for their due diligence but those who prove to be right
will receive a greater reward. The alternative point of view, however,
argued that on all matters of fiqh there is no single truth to be revealed
by God in the Hereafter. All positions held sincerely, and reached after
due diligence are in God’s eyes correct. God rewards people in direct
proportion to the exhaustiveness, diligence, and sincerity of their search
for the Divine Will—sincerity of conviction, the search, and the process
are in themselves the ultimate moral values. It is not that there is no

objective truth—rather, according to this view, the truth adheres to the
search.
This classical debate had an impact upon the development of
various doctrines and institutions in Islamic jurisprudence, the most
important of which was negotiating the dynamics between Shari’a and
fiqh. In the Islamic legal tradition, there is only one Shari’a (Shari’at
Allah) but there are a number of competing schools of thought of fiqh
(madhahib fiqhiyya). Although all jurists embraced the theological
dogma that God’s perfection cannot be reproduced or attained by human
beings, this did not mean that they considered every aspect of Shari’a
to be entirely unattainable or inaccessible until the Hereafter. Some
have suggested that Shari’a contains the foundational or constitutional
principles and norms of the legal system. So for instance, Shari’a
imposes a duty (taklif) upon Muslims to enjoin goodness and resist
wrongfulness. There is little doubt that this duty is a part of Shari’a, but
what it actually means and how or who should implement it is part of
fiqh. Nevertheless, the exact boundaries between Shari’a and fiqh were
often contested and negotiable, and whether there is overlap between
the two categories turned out to be challenging and at times ambiguous.
Behind most of the jurisprudential conceptions of Shari’a was the basic
idea that what cumulative generations of Muslims reasonably identified
as fundamental to the Islamic religion (for instance, the five pillars of
the Islamic faith: profession of faith (shahada), prayer (salat), fasting
(siyam), almsgiving (zakat), pilgrimage (hajj)) ought to be part of the
unassailable Shari’a. As some have contended, this approach might have
been important to the field of theology, but in law, Shari’a could not
be limited to inherited or popular ideas. Rather, Shari’a is comprised
of the foundational or constitutional normative values that constitute
the grundnorms of the Islamic legal system. For instance, the notion
that the Divine Will cannot be represented by a single system of fiqh,
and the celebration of diversity is itself one of those foundational
grundnorms. For example, it is firmly established in the Islamic legal
tradition that Shari’a seeks to protect and promote five fundamental
values: 1) life; 2) intellect; 3) reputation or dignity; 4) lineage or family;
and 5) property. Furthermore, Muslim jurists overwhelmingly held that
there are three basic levels of attainment or fulfillment of such values:
the necessities, needs, and luxuries. Under Shari’a law, legal imperatives
increase in proportion to the level demand for the attainment of each
value. Thus, when it comes to life, for example, the legal duty to secure
a person’s survival is a priori to the obligation of guaranteeing human

beings any basic needs that are above and beyond what is necessary for
survival. Nevertheless, alongside these broad fundamental principles,
historically, Muslim jurists developed specific positive commandments
that were said to be necessary for the protection of the values mentioned
above, such as, for instance, the laws punishing slander, which were said
to be necessary for the protection of reputation or dignity, or the laws
punishing fornication, which were said to be necessary for the protection
of lineage and family. I will discuss the hudud penalties further below,
but for now it is important to emphasize that many of the positive legal
determinations purportedly serving the five values were often declared
to be a part of Shari’a, and not just fiqh, or were left in a rather ambiguous
and contested status between Shari’a and fiqh. Claiming that a positive
legal commandment is not a by-product of fiqh, but is essentially part of
Shari’a effectively endowed such a commandment with immunity and
immutability. The boundaries between Shari’a and fiqh were negotiated
in a variety of highly contextually contingent ways in the course of
Islamic history, but the dynamics and processes of this history remains
grossly understudied.
Purportedly, by the end of 10th century, no less than one hundred
schools of fiqh had emerged, but for a wide variety of reasons most of
these schools ultimately failed to survive. The most striking characteristic
about the legal schools that dominated the practice of law for more than
three centuries after the death of the Prophet is their remarkable diversity,
and in fact, one would be hard pressed to find any significant legal issue
about which juristic disputations and discourses have not generated a
large number of divergent opinions and conflicting determinations. Put
differently, there did not seem to be many issues in Shari’a that were off
limits for the inquiries of fiqh.
Initially, what differentiated one school of law (madhhab) from
another were methodological disagreements and not necessarily the
actual determinations. Importantly, the founders of the schools of fiqh,
and the early jurists in general, did not intend to generate binding legal
precepts. Rather, acting more like law professors and legal scholars,
they produced legal opinions and analysis, which became part of the
available common law to be adopted by state appointed judges in
light of regional customary practices. Legal scholars from the different
schools of thought were often far more interested in hypotheticals that
illustrated their analytical models and methodologies than in passing
judgments on actual disputes. This is why fiqh studies did not speak
in terms of positive legal duties or prohibitions but analyzed legal

issues in terms of five values: 1) neutral or permissible (mubah/halal);
2) obligatory (fard/wajib); 3) forbidden (muharram); 4) recommended
(mandub/mustahab); and 5) reprehensible or disfavored (makruh).
Frequently, jurists wrote in probabilistic terms such as saying “what is
more correct in our opinion,” referring to the prevailing view within the
jurist’s school of thought (al-murajjah ‘indana). The critical point is that
the masters of fiqh understood that they were not making binding law
but issuing opinions of persuasive authority. The difference between fiqh
and positive law was akin to the distinction between fatwa and hukm.
A hukm is a binding and enforceable legal determination, but a fatwa
(responsa) is a legal opinion on a particular dispute, problem, or novel
issue, which by definition, enjoys only persuasive authority. Both fiqh
and fatawa (sing. fatwa) become binding law only if adopted as such by
a person as a matter of conscience or if adopted as enforceable law by a
legitimate authority such as a state judge. In other words, fiqh and fatwa
are normative legal proposals that are contingent on essential enabling
acts or triggers: the conscientious acceptance of its mandatory authority
by a Muslim practitioner or by an official adoption by a proper authority.
Failure to appreciate this fundamental point about the construction and
structure of the legal views expressed in fiqh works has led to a great
deal of ill-informed and misguided scholarship about Islamic law.
One of the most entrenched myths about Islamic law is that the
legal system ceased to develop or change from the 10th or 11th centuries
because, fearing diversity and fragmentation, the so-called “doors of
ijtihad” were declared to be forever closed. According to this claim,
Muslim jurists were expected to imitate their predecessors (practice of
taqlid) without undertaking legal innovations (ijtihad). This myth seems
to have emerged in the 19th century as a simplistic explanation of the
purported stagnation of the Islamic legal system and as justification for
the legal reforms of the time, which in reality amounted to little more
than the importation of European legal systems. More importantly, this
myth persisted among contemporary scholars because of the paucity
of studies on the micro-dynamics of Islamic law and because of the
failure to properly understand some of the basic historical realities
about the development of the Islamic legal system. For example,
taqlid was not the instrument of legal stagnation; it was an important
functional instrument of the rule of law. In general, taqlid stabilized
the law by requiring continuity in legal application, and by creating a
legal presumption in favor of precedents unless a heightened burden
of evidence is met justifying legal change. Indeed, many of the most

important developments in Islamic law were accomplished by jurists
centuries after the supposed doors of ijtihad were closed.
The essential point about the Islamic
legal tradition, and especially the role
of fiqh, is that the juristic method and Hints
the linguistic practices of cumulative
The classic
communities of legal interpretation became
Sharia was not a
not only the mechanism for legitimacy and
code of laws, but a
authority, but also the actual source of law. body of religious
As a community of guilded specialists with and legal scholar-
an elaborate system of insignia and rituals, ship that continued
in most cases structured around a system to develop for the
resembling the Inns of Court in England, the next 1,000 years.
jurists played a critical role in upholding the
rule of law and in mediating between the
masses and rulers. However, the primacy of
the juristic method and the organized guilds representing the various
schools of law, contrary to some stereotypical claims, did not mean that
the application of Islamic law became completely streamlined or simply
mechanical and formulaic. Within a single madhhab, it was common
for various juristic temperaments and philosophical orientations to exist
because the established schools of law became the common platforms
where conservative or activist jurists had to pursue their legal agendas
or objectives. Within a single established school of thought, there could
be conservative, traditionalist, rationalist, or equity-oriented trends, but
each of these orientations had to negotiate its particular approach within
the demands of the juristic method of the madhhab. Fundamentally,
whether a particular legal orientation emphasized the use of the text,
reason, custom, equity, or public interest, these tools had to be justified,
channeled, negotiated, and limited by the juristic method. The point is
not just that the juristic method became the prevalent mechanism for
negotiating the tools and instruments of legal analysis but even more,
the juristic method became Islamic law itself; it became the mechanism
for negotiating not just the relationship between Shari’a and fiqh, but
between the realm of God and that of humans, and ultimately, between
the sacred and the profane.
3.7.5 The Sacred and Profane in Islamic Law

The relationship between the sacred and profane was negotiated in
Islamic law through the ongoing historical dynamics demarcating the
boundaries between Shari’a and fiqh. But beyond this, there were several
other conceptual categories and functional mechanisms through which
sacred and temporal spaces were negotiated in Islamic law. Among these
categories was the conceptual differentiation between ‘ibadat (laws
dealing with matters of ritual) and mu’amalat (laws pertaining to human
dealings and intercourses). In theory, all Islamic laws are divided into
one of these two categories: ‘ibadat are laws that regulate the relationship
between God and humans, and mu’amalat are laws that regulate the
relationship of humans with one another. As to issues falling under the
category of ‘ibadat, there is a legal presumption in favor of literalism
and for the rejection of any innovations or novel practices. However, in
the case of mu’amalat the opposite presumption applies; innovations
or creative determinations are favored (al-asl fi al-‘ibadat al-‘ittiba’ wa
al-asl fi al-mu’amalat al-‘ibtida’). The rationale behind this categorical
division is that when it comes to space occupied exclusively by how
people worship the Divine, there is a presumption against deference to
human reason, material interests and discretion. Conversely, in space
occupied by what the jurists used to describe as the pragmatics of social
interaction, there is a presumption in favor of the rational faculties and
practical experiences of human beings. Underscoring the difference
between ‘ibadat and mu’amalat was the fact that the two were not only
identified as distinct and separate fields and specialties of law, but it was
also quite possible to specialize and become an authority in one field but
not the other (fiqh al-‘ibadat or fiqh al-mu’amalat).
Beyond this clean categorical division, negotiating the extent
to which a particular human act or conduct, whether it be public or
private, primarily involved ‘ibadat or mu’amalat was not a simple and
unequivocal issue. For instance, there were lengthy debates as to whether
the prohibition of zina (fornication or adultery) or consumption of
alcoholic substances falls under the category of ‘ibadat or mu’amalat, or
alternatively, some mixture of both categories. Nevertheless, as in the case
of the debates regarding the parameters of Shari’a and fiqh, although in
principle there was a philosophical recognition that the spaces occupied
by the sacred and profane require different treatments, in reality, it is
the juristic method that played the defining role in determining the
function of text, precedent, and rational innovation in the treatment of
legal questions. Ultimately, it was not the legal presumptions attaching
to either category but the institutional and methodological processes of

each legal school of thought that most influenced the way issues were
analyzed and determined.
Perhaps as a practical result of the epistemology of plural orthodoxy,
in Islamic jurisprudence a court’s judgment or finding was not equated
with or considered the same as God’s judgment. At a normative level,
a court’s judgment could not right a wrong or wrong a right and it
could not negate or replace the duties and responsibilities imposed
by an individual’s conscience. Jurists argued that individuals do have
an obligation to obey court decisions as a matter of law and order,
but judicial determinations do not reflect or mirror God’s judgment.
A classic example would be of a litigant who, for instance, follows the
Hanafi school of thought, and who is forced to submit to the jurisdiction
of a Shafi’i court (see above for a general discussion of the differences
among the juristic schools of thought). The Hanafi litigant would have
to obey the judgment of the court not because it is correct but because
a duly constituted court possesses legitimate positive authority (sultat
al-ilzam). Not surprisingly, the proper balance between the duty of
obedience to the public order and the duty to follow one’s conscience, or
school of thought, has been the subject of considerable jurisprudential
debates.
Because of the reality of pluralist legal orthodoxy, in Islamic
jurisprudence it is entirely conceivable even where Shari’a is the law
of the land that an individual legitimately would feel torn between his
duties towards the public order and God. The legitimacy of the state
and even the law were not absolute—both state and law performed a
functional but necessary role. Beyond the fact that the state could not act
as a proxy for God, legal determinations could not void the necessary
role of personal beliefs or individual conscience because they did not
replace the sovereignty of Divine judgments.
3.7.6 The Rights of God and the Rights of Humans

Perhaps the clearest articulation in Islamic jurisprudence of the
distinctive spaces occupied by the sacred and profane is the categorical
differentiation between the rights of God (huquq Allah) and rights of
humans (huquq al-‘ibad). Muslim jurists agreed that humans cannot
benefit or harm God, and so unlike the rights owed to human beings,
the rights of God do not involve any actual interests of God. Depending
on the context, the word huquq (sing. haqq) referred to the province,
jurisdiction, boundaries, or limits of God (hudud Allah). Interestingly,

huquq al-‘ibad did not refer to public or common rights but to the material
interests and benefits belonging to each human being as an individual.
The rights of God do not need a protector or vindicator because God
is fully capable of redressing any transgressions committed against
God’s boundaries or commands. But unlike God, human beings do need
an agent empowered to defend them and redress any transgressions
committed against their person or properties. Therefore, the state is not
simply empowered but obligated to enforce the rights and obligations
owed to people and may not legitimately ignore or waive them away.
The state was precluded from enforcing the rights of God because the
state was not God’s representative and God had reserved these rights to
God’s exclusive jurisdiction and province.
Muslim jurists clearly recognized the exceptionality and exclusivity
of the sacred space and even jealously guarded it from the encroachments
of the profane. Ironically, however, it is in dealing with the issue of God’s
clear boundaries and limits that the jurists most famously collapsed
the sacred and profane into a single space, at least in theory if not in
application. In what is known as the hudud penalties, Muslim jurists
asserted that there is a category of Divinely ordained punishments that
apply to violations committed against a class of mixed rights (huquq
mukhtalita), which are shared by God and human beings. As a category,
mixed rights involve issues where the material interests or well-being of
people is involved but at the same time, there is a discernable Divine Will
staking a specific claim for the Divine over these issues. In the case of the
Divinely ordained hudud penalties, for reasons not necessarily known
to human beings, God purportedly not only explicitly determined the
punishable act and the exact penalty but also the exact process by which
the crime is proven and the penalty is carried out. Although not all the
hudud crimes were mentioned in the text of Qur’an, a general juristic
consensus was said to exist as to the Divine origin of the penalties. In
the classical tradition, fornication or adultery (zina), robbery (sariqa),
consumption of alcohol, defamation (qadhf), and apostasy (ridda) were
the violations most commonly included within the hudud. The real
paradox of the hudud is that while in contemporary Islam they are often
imagined to be the harbinger and flagship of Islamic law, in the classical
tradition, the hudud penalties were rarely applied precisely because
of the space occupied by the Divine in defining and redressing the
crime. On the one hand, by categorizing a crime under the hudud, the
definition of the crime and the appropriate penalty became sanctified
and immutable. But, on the other hand, by placing it within the category
of hudud, the jurists effectively endowed the penalty with a largely
symbolic role because the technical requirements and administrative
costs of enforcing these sacred penalties were largely prohibitive. As with
all matters involving the rights of God, as far as the state is concerned,
it is imperative to tread cautiously lest in trying to uphold the bounds
of God, whether through ignorance, arrogance, or incompetence, the
state itself ends up committing an infraction against the Divine. Prophet
Muhammad’s injunction, which was adapted into a legal maxim,
commanded that any doubt must serve to suspend the application of the
hudud. In addition to the presumption of innocence in application as to
all criminal accusations, Muslim jurists often cited the injunction above
in greatly circumscribing the application of the hudud penalties through
a variety of doctrinal and procedural hurdles. In general, repentance,
forgiveness, and doubt acted to prevent the application of the hudud.
In dealing with the rights of God, it was always better to forgive than to
punish; repentance of the defendant acted to suspend the hudud, and
all doubt had to be construed in favor of vindicating the accused.
As far as the classical jurists were concerned, the hudud, like all
matters implicating the rights of God, were better left to Divine vindication
in the Hereafter. In most cases, instead of pursuing a hudud penalty, the
state proved a lesser included crime under a less demanding burden of
proof, and applied lesser penalties, normally involving imprisonment,
some form of corporal punishment, banishment, or a fine. Lesser
penalties for non-hudud crimes, or lesser-included crimes, fell into two
categories: qisas (talion, or punishment in kind to the offense, ie. eye for
an eye) or ta’zir (penalties prescribed by the state for offenses against
public interest). Qisas was treated as a private recourse and right, where
pardon or forgiveness was always preferable, but ta’zir were thoroughly
profane punitive measures left to the authority and jurisdiction of the
state applied to protect the public through deterrence. Classical Muslim
jurists enunciated various principles regulating and restricting the
powers of the state over ta’zir punishments. Fundamentally, however,
while hudud punishments were greatly circumscribed, throughout
Islamic history, what and how ta’zir punishments were applied greatly
varied from one time and place to another.
By circumscribing the enforcement of the rights of Divine, the
classical jurists of Islam constrained the power of the state to act as God’s
avenger. However, doctrinally the rights of God, as a concept, played an
important normative and ethical role in the Shari’a dynamics taking place
within Muslim societies. The rights of God symbolically represented the

moral boundaries of appropriate social mores and values in the public
space. This does not mean, as some contemporary reformists have
claimed, that the rights of God are equivalent to or substantially the
same as public interests or space. Normatively, the Shari’a is expected
to pervade the private and public spaces by appealing to the private
consciences of individuals and to societies as collectivities. But there is
one way this could happen and that is through voluntary compliance.
For the most part, Islamic jurisprudence invoked the compulsory
powers of the state in order to enforce obligations or rights owed to
people—not to God. Functionally, Islamic law was thought of not as a
means for empowering the state to act on God’s behalf but as setting
limits to the powers of the state through the imposition of the rule of
law. Therefore, the greater legacy of the Islamic tradition deals with
questions involving mu’amalat or social intercourses and dealings or
the resolution of conflicts arising from competing claims and interests.
Questions of social etiquette or proper public manners were not treated
in books of jurisprudence but were relegated to the status of moralistic
pamphlets (kutub al-raqa’iq) written often by religious preachers or
sometimes by qualified jurists for the consumption of the laity.
3.7.7 Modernity and the Deterioration of Islamic Law

With the advent of the age of Colonialism, the Islamic legal system was
consistently replaced by legal systems imported from Western colonial
states. The factors contributing to the deterioration and replacement
of Islamic law are numerous but primary among those factors was the
pressure exerted by foreign powers for a system of concessions and
special jurisdictions that served the economic and political interests of the
colonizers and a parasitical native elite that derived and maintained its
privileged status from the financial, military, and cultural institutions of
colonial powers. Throughout the Muslim world, this led to a protracted
process by which colonial powers, or in the post-colonial age, local
nationalistic governments consistently undermined the autonomy, and
eventually completely controlled, the traditional legal guilds, not only
depriving them of any meaningful political role but also deconstructing
their very legitimacy in Muslim societies. Perhaps more destructive to
the Islamic legal system was the fact that the institutional replacement
of Islamic law was accompanied by a process of cultural transformation
that led to the deconstruction of the very epistemological foundations of
Islamic jurisprudence. The cultural impact of Colonialism upon Muslim

societies was and continues to be immeasurable.
Predictably, as the 20th century came to a close and the 21st century
began, the field of Islamic law suffered a crippling crisis of authority
as Muslims struggled to re-discover the rules and criteria for defining
the authoritative in modern Islamic law. The fact remains, however,
that as a legal tradition Islamic law continues to carry considerable
normative weight for millions of Muslims around the world, and also
continues to influence, to one degree or another, the legal systems of a
number of countries. The crisis of authority plaguing Islamic law today
does not affect its relevance or importance. It does mean that Islamic
law does not have the effective means for regulating the reasonableness
of the determinations generated on its behalf or attributed to it. In the
contemporary age, many voices speak in the name of Islamic law and
the problem is that some of these voices are quite unreasonable.
3.8 THE AFRICAN LEGAL TRADITIONS

African customary law is controversial. This is due to the dissonance
between the past and present. The social settings in which Africans
interact have changed over time. These changes have been characterised
by a tense relationship between indigenous customs and statutory laws
with colonial origins. Indigenous customs have communal, welfarist
features, while statutory laws have industrial, individualistic features.
This dissonance is very evident in South Africa. The ethos of its
formal legal order often conflicts with the values of indigenous customs.
This has made the interaction of indigenous customs and statutory
laws problematic. Two examples arise in the areas of marriage and
inheritance.
Unlike in the past when heirs inherited property along with a duty
of care to the family, modern heirs are influenced by socioeconomic
changes to inherit for themselves. Similarly, it was natural in precolonial
South African societies for the family to be involved in marriage
contracts. The family came together to provide ilobolo (bridewealth in
isiZulu) from their collective wealth. Today, ilobolo is no longer raised
communally.
To regulate the application of indigenous customs, South Africa has
adopted a range of laws. They include the Recognition of Customary
Marriages Act, the Reform of Customary Law of Succession and
Regulation of Related Matters Act, the Communal Land Rights Act, and
the Traditional Leadership and Governance Framework Act.
But overshadowing these laws is the country’s constitution. It is the
‘face’ of state law.
Africa’s fifty-six sovereign states range widely in their history
and structure, and their laws are variously defined by customary law,
religious law, common law, Western civil law, other legal traditions, and
combinations thereof.
Prior to the colonial era in the nineteenth century, Africa’s legal
system was dominated by the traditional laws of the native people. The
efforts to maintain the indigenous practices against the rising Continental
European and Great British powers, though unsuccessful, provoked
the development of existing customary laws via the establishment of
‘Native Courts’. While the colonies were governed by the imported legal
system and civil codes of the metropoles, the practice of traditional laws
continued under supervision, with its jurisdiction restricted to only
African citizens.
Following its absolute political independence political independence
in the late 1970s, post-colonial Africa continued to employ these
introduced laws, with some nations preserving the colonial legislation
more than others. In contemporary Africa, the African Union is involved
in the development of the continent’s legal matters with objectives to
promote democratic institutions, encourage unity between the legal
systems of the African countries, improve international relations and
protect human rights.
3.9 LEGAL CONVERGENCE AND

DIVERGENCE
We have seen that a number of factors, linked in time particularly to
the decline of British power and influence in the world, have resulted, and
continue to result, in once formally uniform common law jurisdictions
around the world asserting their legal independence. These factors
have resulted in divergences in the laws of common law jurisdictions.
Goudkamp and Murphy argue that this jurisdictional isolation and
divergence is ‘ self-sustaining ’ and a ‘ runaway phenomenon ’ , meaning
that the laws of the various jurisdictions will grow ever further apart, each
being less relevant to the others in the development of their respective
common laws. The early separation of the United States from the United
Kingdom is testimony to this. For Goudkamp and Murphy one result of
this will be to diminish the likelihood of discovering a universal theory
of tort law, which is already proving difficult enough.
It is clear, however, that this has not yet happened. It is undoubtedly
true that with jurisdictional isolation comes a concentration on, even
a pride in, and perhaps a flowering of, local jurisprudence. Goh ’ s
empirical study shows how the Singapore courts increasingly cited their
own decisions once their legal independence was clearly established.
This enabled the imported law to be cultivated with an acute awareness
of the soil into which it had been transplated ’ — with all that implied.
The words quoted in the last sentence are those of Justice Andrew Phang.
But the same judge was later to say, in the Singapore Court of Appeal,
that, in today ’ s interconnected world, ‘ local courts ought to eschew
parochialism ’ in the development of the law.
This points to the fact that, just as there are, and have been, factors
driving divergence, so there are factors that promote convergence.
Internationalisation or globalisation is an obvious one, especially in
the area of commercial law, widely defined. Indeed, the same factors
that promote divergence may also promote convergence. The EU law
that potentially creates divergences between the English common
law and the common law of other jurisdictions may also potentially
result in convergence between English law and the civil laws of the
European Union. And, just as common laws may diverge where it is
inappropriate for whatever reason that the common law of one common
law jurisdiction should be the same as that in another, so there may be
situations in which it is appropriate that one common law jurisdiction
should borrow from another. Hong Kong ’ s adoption of Singapore ’ s
harassment tort, which has already been mentioned, is an example of
this.
It should also be noted that some convergence between common
law jurisdictions may be achieved in the recognition of the need to
develop the common law judicially, notwithstanding differences in the
details of that development. Goudkamp and Murphy draw attention
to two developments in the common law that illustrate this: defences
in defamation and privacy. The demand for law reform in these areas
arose in the jurisdictions concerned at around the same time. Although,
as Goudkamp and Murphy point out, there were, inevitably, a variety
of responses from the jurisdictions concerned taking into account their
constitutional structures or statutory laws, all the jurisdictions achieved

a convergence in the need to develop the common law in these two
areas for the purposes of providing a ‘ responsible journalism ’ defence
in defamation in order to accommodate modern understandings of
freedom of expression; and of responding to demands for greater
protection of individual privacy than was possible in existing torts. The
independent recognition by common law courts in various jurisdictions
of the need for the judicial development of the law in these areas is,
no doubt, attributable to the strength of the underlying unity of the
common law.
3.9.1 Divergence
The forces causing divergence between common law jurisdictions
are revealed in the reasons that led to local dissatisfaction with the Privy
Council as the final court of appeal for common law jurisdictions. The
central force was the conviction that the House of Lords or the Privy
Council had, in a number of cases on appeal from overseas jurisdictions,
simply gotten the (local) law wrong. There is nothing unusual about this.
Appellate courts operating independently of one another will sometimes
simply adopt different views as to what justice or policy requires in
particular circumstances, particularly in relation to questions that are
finely balanced. Inevitably, issue will be taken with the articulation
of doctrine and the results in particular cases, particularly where the
approach does not accord with views taken in other appellate courts,
especially if a majority view is challenged in dissenting judgments.
Disagreement and dissent of this nature are an essential part of the
development of the common law. They do not result in a change in the
hierarchy of courts. Local dissatisfaction with the unified common law
model did. This was because its central theme came to be that the Privy
Council got local law wrong because it had applied English law.
As Finn points out, the problem was that the English version of the
common law was parochial, one that was inappropriate (for whatever
reason) in local circumstances or offended local values. 23 In the context
of the law of obligations, Finn argues that inappropriateness centred on
an unduly formal approach to traditional doctrines that were productive
of injustice, and on the failure to exact appropriate standards of conduct
in relationships and dealings. The response, at least in Australia,
Canada and New Zealand, was to move away from legal formalism,
requiring transparent reasoning and rational reasons; and to develop
what were seen as appropriate standards of conduct, informed by
community standards. Although there are differences between the three

jurisdictions, the results of this response include the unconscionable
dealings doctrine; the emergence of equitable estoppel; the expansion
of fi duciary law beyond the protection of economic interests; the
acceptance of the remedial constructive trust; the development of the
remedy of equitable compensation; and the uncoupling of compensation
and liability. A commonality running through these cases in the three
jurisdictions is a concern with ‘ equity ’ and ‘ justice ’ , sometimes
expressed in the language of ‘ unconscionability ’ or ‘ fairness ’ .
The inappropriateness of English law to local conditions can
sometimes be identified more particularly than this. Goh gives
examples from Singapore that are ultimately attributable to Singapore
’ s chronic land shortage: first, the extension of the right to support for
land to include buildings on the land, notwithstanding Dalton v Angus
, in order to promote careful building practices in view of high density
land use throughout Singapore; secondly, the imposition of liability for
pure economic loss on property developers for defectively constructed
buildings, contrary to Murphy v Brentwood District Council , in order
to protect the investment in high-cost real property which is the single
most important investment that a Singaporean is likely to make in his
or her lifetime; thirdly, the creation of a tort of harassment to respond
to human interaction in an area of high population density. The second
of these examples was supported by reference to Commonwealth
authority that had already departed from the English view: the third
itself provoked the development of a like tort in Hong Kong, another
small jurisdiction with high population density.
It is probably impossible to encapsulate in a meaningful universal
formula the general circumstances in which local courts take the
view that the English (or any other) version of the common law is
inappropriate. In 1967, when the Privy Council accepted that the High
Court of Australia could refuse to follow a restatement of English law,
it did so on the basis that the area of law in question (the availability
of exemplary damages) was a matter considerably … of domestic or
internal significance, which was well settled in Australia, and which
should be settled by local policy, since this was an area of law largely
fashioned by judicial opinion. This, of course, left open the question
how to identify matters of domestic or internal significance and, indeed,
why the availability of exemplary damages was an example of such a
matter. One suspects that the Privy Council may have had sympathy
with the High Court of Australia ’ s stance because the Council was itself
less than convinced by the English restatement of the law of exemplary

damages, as subsequent developments in English law demonstrate.
One circumstance in which the English (or any other) version of
the common law cannot be applied, and where divergence necessarily
exists between common law jurisdictions, is where a local statute applies
directly to cover the issue before the court and that statute is at odds
with the common law. Statute also has the potential to effect divergence
in the common law in another way: where a court takes the view that it
must develop its common law by analogy to the statute or by reference
to the policy underlying the statute. In his contribution to this volume,
Sir Anthony Mason investigates the approach of Australian courts to
this issue. Unlike the New Zealand courts which have tended to view
common law and statute as forming one legal order, Mason points out
that Australian courts have been reluctant to apply statutes by analogy or
to hold that their underlying policy must now dictate the development
of the common law. Mason ’ s essay suggests that there are reasons to
think that this aspect of the relationship between common law and
statute will not be a major source of divergence between common law
jurisdictions: first, because there are a number of technical reasons why
such development is complex, including the determination of the scope
of the statute; its intended relationship to the common law; the effects
of statutory amendment; and the influence that a statute of one part of
a federation can have on a general common law of the federation; more
generally, because it is often difficult to determine the policies that do
underpin statute, not least because there may be a lack of authoritative
materials to do so. Moreover, there is a risk that the development of
common law by reference to statute may freeze the common law at
a point in time, or lead to incoherence in the law — and, whatever it
means, coherence does present a potential hurdle to reliance on statute
as a source of the development of the common law. Underlying the
general reluctance to develop the common law by reference to statute is
also the courts ’ desire to avoid straying into the legislative arena.
EXERCISE
Answer the following questions:
1. Explain about the French legal system.
2. Describe the German legal system.
3. Differentiate between civil law and common law.
4. What do you understand by the Islamic legal tradition?
5. What is the British legal system?

1. The French legal and judicial system bears the imprint of_________
a. greek law
b. roman law
c. british law
d. arabian law
2. What kind of “system” does England and Wales operate under?
a. A civil law system
b. A common law system
c. An equitable system
d. None of the options given are correct
3. Which of the following statements best describes the function of
a legal system?
a. Protection of individual rights and liberties
b. Maintenance of public order
c. Conferral of obligations
d All of the options given are correct
4. Which of the following is the correct statement of law?
a. The law of the United Kingdom
b. The law of England and Wales
c. The law of England, Wales and Northern Ireland
c. The law of England and Scotland
5. Which of the following is the most accurate description of civil
law?
a. Civil law is an aspect of public law
b. Civil law relates to controlling conduct or wrong-doing of

which it disapproves
c. Civil law relates to the enforcement of particular forms of
behaviour
d. Civil law is a form of private law and involves the relationships
between individuals
ANSWERS
1. (b) 2. (b) 3. (d) 4. (b) 5. (d)
REFERENCES
1. “The UK has three legal systems, operating in England and Wales,
Scotland and Northern Ireland”, direct.gov.uk, accessed 12 March
2007
2. Claire M. Germaine, “Germaine’s French Law Guide” (2001),
Cornell’s Law EncyclopaediaRetrieved from www.lawschool.
cornell.edu/library/encyclopedia. Last Access: 18th April 2015.
3. Conseil d’Etat, Encyclopædia Britannica Online (2015) Retrieved
19 April 2015 from http://www.britannica.com/EBchecked/
topic/133330/Conseil-dEtat.
4. Dr. Audrey Guinchard, ‘A Short Guide to the Law and Legal System
in France’, Retrieved fromhttp://about-france.com/french-legal-
system.htm. Last Access: 18th April 2015.
5. Iain Stewart, “Mors Codicis: End of the Age of Codification?”
(2012), Page-27, Tulane European & Civil Law Forum’
6. Okeke, Chris Nwachukwu (Winter 2011). “African Law in
Comparative Law: Does Comparativism Have Worth?”. Roger
Williams University Law Review. 16 (Symposium: Methodological
Approaches to Comparative Law): 50.
7. The Organisation of the Court of Cassation”, retrieved from
the official website of the Court of Cassation, https://www.
courdecassation.fr/cour_cassation_1/presentation_2845/
organisation_cour_cassation_30990.html Last Access: 18th April
2015.
Aspects of the Ethiopian Legal System 221
CHAPTER 4
ASPECTS OF THE ETHIOPIAN LEGAL

SYSTEM
OBJECTIVES
• Conceptions of law in Ethiopia
• Legal source and background of the six codes
• The development of the Ethiopian Penal Law
• The judicial system of Ethiopia
• Constitutional development in Ethiopia
4.1 CONCEPTIONS OF LAW IN ETHIOPIA

The rule of law as a political concept has an ancient origin which
is believed to exist since the time of ancient Greece. According to
some literatures, the ideal was known by another description called
“isonomia” which was popular expression in the ancient Greece
public discourse. There was a great submission of the ancient Greece
society and, the then philosophers, to the rule of law as a concept that
is important in preserving freedom and equalities Greece people. For
instance, Herodotus expressed his advocacy to the rule of law saying that
“isonomia” is the most beautiful of all names of a political order. Greece
philosophers used the term as one mechanism to counterweight the

populist democracy from becoming a source of tyrannical government.
In one of his last dialogues, The Laws (circa 360 B.C.), wrote the idea that
the government should be subservient to the law. Some scholar traced
the modern idea of Aristotle, who equated the Rule of Law with the rule
of reason. Aristotle in his book, the Politics, argued that government
should be bound by law as means to prevent arbitrary rule and the
abuse of power.” The contribution to the rule of law is not limited to
the Greece rather the ancient Romans have also contributed a lot to the
development of rule of law. Of the many, Cicero`s contribution to the
rule of law is the most influential. He argued that, law must be for the
good of the community as a whole, thereby subjecting law to ideals of
justice. He upheld the prevalence of the rule of law by condemning the
kings who do not abide by the law as a “despot and the most repellant
creature imaginable.” The fall of the Roman Republic at the hands of
emperors gave way to autocratic rule. During the reign of Emperor
Justinian I, Roman law was codified. The coming in to effect of Corpus
Juris Civilis (529 to 534 A.D) constituted a setback for the development
of rule of law since it provided that the emperor was above the law and
not subject to it.
In Medieval Europe the concept of rule of law truly began to take
a shape. During this period Europe was fragmented because of the
disintegration of the Roman Empire and the struggle for power between
church authorities and monarchs. The Popes and kings were struggling
to control authorities over both religious and secular affairs. Over the
course of time, however, the appointment process of monarchs came
to incorporate the taking of an oath affirming the church’s supreme
authority and a commitment to abide the law. In the central and western
Europe (Germanic lands) that had not been conquered by the Romans,
uncodified customary laws were applied to the monarch who came to be
seen as the guardian of the law. Later on, in the medieval period, Thomas
Aquinas developed a theory of natural law and he affirmed Aristotle’s
views that law is based on human reason and must be promulgated for
the common good of the people.
In England, the principle that the king was bound by the law was
a prominent feature of the Magna Carta, which is considered as one of
the historical documents in the medieval period that contributed a lot
to the development of the rule of law and symbolized the fact that law
protects citizens against the tyranny of kings. Clause 39 of the charter
provides that, “No free man shall be taken or imprisoned or diseased or
outlawed or exiled or in any way ruined, nor will we go or send against

him except by the lawful judgment of his peers or by the law of the
land”. In the thirteenth century Bracton, a judge in the reign of Henry
III, wrotes that “The king himself ought to be subject to God and the
law, because law makes him king.” İn onather incident Sir Edward Coke
incorporate the concept of Rule of Law when he said that the king must
be under God and law and thus indicated the supremacy of law over
the pretensions of the executives. Taking into account these facts Valcke
argues that
“As a result of these historical developments, one of the Medieval era’s major contribu-
tions to legal theory was to displace the idea that the monarch was above the law that
had been inherited from Roman law by giving way to the convention that the sovereign
was bound by law and marking a return to the position advocated by classical philoso-
phers.”
During the Enlightenment, the gradual separation of church and
state, the bourgeoisie’s desire for greater protections and the coming of
Renaissance set the stage for the emergence of liberalism as a political
theory. J. Locke in his idea of “social contract” suggests that individuals
agree to be governed by the state in exchange the state to protect their
personal freedom and property right. In this agreement the legitimacy
of government derived from poplar consent. Individuals delegate their
power to the government so that it can enact and execute laws in the
common good. This understanding creates the political philosophy of
liberalism. The rule of law is a central concept at the heart of liberalism.
In this sense it takes the guise of formal legality in which society operates
according to structured rules that provide freedom for individuals. The
real credit for the development of the concept of Rule of Law goes to
Professor A.V. Dicey who in his classic book “Introduction to the Study
of the Law of the Constitution” tried to introduce the concept of Rule of
Law.
Dicey’s Theory of Rule of Law consists of three main princi-

ples
Absence of Arbitrary Power or Supremacy of Law: As per Dicey
Rule of law means the absolute supremacy of law and ‘no man is
punishable or can lawfully be made to suffer in body or goods except for
a distinct breach of law established in the ordinary legal manner before
the courts of the land. Diecy was of the view that all individuals whether
if he is a common man or government authority are bound to obey the
law. He is of the view that no man can be punished for anything else
than a breach of law which is already established. And also, that the
alleged offence is required to be proved before the ordinary courts in

accordance with ordinary procedure.
Equality before Law: As per Dicey Rule of law, in the second
principle, means the equality of law or equal subjection of all classes
of people to the ordinary law of the land which is administered by
the ordinary law courts. In this sense rule of law conveys that no man
is above the law. Even the Government Officials are under a duty to
obey the same law and there can be no other special courts for dealing
specifically with their matters.
Constitution is the result of the ordinary law of the land: As per
Dicey, in many countries rights such as right to personal life, liberty etc.
are provided by the written Constitution of a Country. But in England
these rights are a result of the judicial decisions that have arisen due to
the conflict between the parties. The constitution is not the source but
the consequence of the rights of the individuals
4.1.1 Rule of Law in Modern Sense

In the modern times, the rule of law continued to be famous yet
most controversial political idea. Rule of law has been unanimously
advocated by governments from different ranges of societies, culture,
economic and political orientations. According to Tamanaha, the rule of
law appears as the preeminent legitimizing political ideal in the world
today, in which most of governments in the world, from the west to
socialist, totalitarian to democrats, and developed to developing, plead
in the name of the ideal, and it is claimed that none make a statement
rejecting the rule of law. It is recognized worldwide as an essential
component and precondition of good governance and sustainable
economic development. However, its theoretical understanding has
been varied and controversial. The determination of its precise meaning
and scope is unsettled issue. For some, the concept has a purely formal
meaning, in which the rule of law requires the state to act in accordance
with the laws it has promulgated and these laws must meet a certain
number of minimum requirements. However, for others, the concept has
a wider, more substantive, meaning that incorporates ideals of justice,
fairness and respect for fundamental rights.
The Formal Conception of Rule of law

The formal conception states that the rule of law is satisfied
when laws conform to certain formal and procedural requirements.
Accordingly, rule of law can be realized when legal rules become general,
prospective, clear, non-contradictory, relatively stable, promulgated etc.
For formal conceptions, having law is valuable because, regardless of
the content of the law, legal rules that are properly framed, administered
and adjudicated enable predictability of legal outcomes and people’s
reliance on the law, and hence serve people’s autonomy interests.18
From this perspective, the rule of law is considered as a system with
which one is expected to comply with the rule no matter what these
rules are. This conception of the rule of law does not give concern to
the actual content of the laws existing in a legal system. Nor does it
provide a requirement as to how the law should be made; by tyrant,
democratic majorities or any other ways. Formal Rule of law in its
extreme sense provides that whatever the government does, it should
be based on predetermined laws no matter whether the content of the
law is just or unjust. From this we can understand that, observance of
rule of law in its formal conception does not restrict the government
from enacting repressive and discriminatory laws. A non-democratic
legal system based on the denial of human rights, racial segregation,
sexual inequalities and etc. may comply with the formal requirements
of the rule of law. Accordingly, the formal conceptions of the rule of law,
has a potential to create a system of rule by law, in which law serves as
an instrument to legitimize government’s oppression.
Rule by Law in Ethiopia

Ethiopia is classified as “not free” by the Freedom House in its
2018 Freedom in the Word Index. Similarly, in the sub-categories of
“safety and rule of law”, and “participation and human rights” the Mo
Ibrahim Foundation ranked Ethiopia 31th in Africa. The Economist
classified Ethiopia as an “authoritarian” regime in its 2018 Democracy
Index. Thus rankings are not a mere coincidence rather they are clear
indicators of undeveloped democratic culture in Ethiopia and such
un-development emanates from the frailer to limit the power of the
government. By disregarding the substantive limits on the law-making
powers of legislator imposed by the constitution yet by fulfilling formal
requirements, the government of Ethiopia has adopted several laws that
target the principal democratic entities, namely, opposition political
parties, the media, and non-governmental organizations (NGOs). The
Anti-terrorism proclamation is a clear manifestation of the desire to
use law as an instrument to suppress other political parties, midias and
NGOs. It has taken its toll on freedom of expression and association
and is being used to silent critical voices. Specifically this proclamation
criminalises any publications that are “likely to be understood by some

or all of the members of the public to whom it is published as a direct or
indirect encouragement or other inducement to them to the commission
or preparation or instigation” of terrorism. From this we can understand
that if a reporter writes anything which could be understood by other
person as it encourages or instigate terrorism he or she is taking the
risk of being charged under the anti-terrorism law. Moreover, the listing
of terrorist organisations is conducted exclusively by the legislative
organ upon recommendations of the executive. Up to January 2018,
923 individuals were being prosecuted on terrorism-related charges.
Among them, 440 (48%) are alleged to have connections with the Oromo
Liberation Front (OLF), and 311 (34%) are alleged to have connections
with Ginbot 7. Another notable piece of legislation that has proved to
be an instrument of government to legitimize its oppresion is charities
and societies proclamation (CSO). It restricts the types of organizations
allowed to work on human rights and governance issues. Only Ethiopian
charities and societies may advance or promote human and democratic
rights. According to this proclamation CSOs working on human rights
issues including on children and women’s rights are prohibited from
receiving more than 10% of their funds from foreign sources. The
government considers activities related to human rights as “political”
and, therefore, reserved exclusively to Ethiopian nationals without
any kind of interference from foreign sources, including financial
support. For the government, any CSO that receives more than 10%
of its funds from foreign sources is considered as CSO of foreigners.
As a result of this restriction, the few CSOs working on human rights
issues have been forced to cut down on staff, program mes and areas
of operation. Moreover, this proclamation has forced foreign NGOs
like Amnesty International and Human Rights Watch to cease human
rights advocacy from inside Ethiopia. From this we can understand that
by the instrumentality if this law the governmwnt is undermining the
activities of CSOs working on good governance and human rights. The
government has argued that these restrictions prevent undue foreign
influence in Ethiopia’s domestic affairs. The government has also created
laws targeting independent media. Freedom of Mass Mediaand Access
to Information Proclamation has always been subject to critisisim for its
inclussion of restrictive provission which criminalize ‘false accusations
and defamation against the constitutionally established legislative,
executive or judicial authorities’ even if the person allegedly defamed
does not lay a complaint. Indirect contradiction of the jurisprudence at
the regional and international level calling for greater tolerance towards
criticism of public office holders, this provision scales up the protection

of office holders against defamation. Clearly, this law is intended to
protect government officials from the embarrassment.
According to the electoral law of Ethiopia, CSOs wishing to observe
elections or to conduct voter education must first obtain licenses from
the Ethiopian National Election Board. CSOs obtaining more than 10%
of their funding from foreign sources are prohibited from observing the
elections or conducing voter education. It is only those CSOs that are
considered Ethiopian which are allowed to work on human rights and
democratization issues. Similarly, the media is prohibited from reporting
on the election process without a license from the Board. Again, the
decision of the Board to issue the license or ID to CSOs or the media is
final and not subject to judicial review.
The aforementioned four proclamations loudly demonstrate the
fact that Ethiopian government use laws to secure its sustainability
and to silent opposition political parties, midias and non-governmental
organizations. This show the prevalence of rule by law in Ethiopia.
Law are used by the governments as an instrument of oppression.
Accordingly understanding the rule of law from the formal conception
view is imperfect and may open the way to dictatorial regimes.
Substantive Conception of Rule of Law

According to the substantive conception,
in addition to the formality requirements,
the rule of law should also require and Hints
determine the content of the law, i.e. whether
the law is good or bad, whether or not it People’s
protects individual rights. In its substantive courts were original-
ly established under
conception, rule of law has a wider meaning
the jurisdiction of
that incorporate ideals of justice, fairness Peasants Association
and respect for fundamental human rights. and Kebeles. Mem-
In other word Rule of law in its substantive bers of the tribunals
version requires that, in addition to the were elected by As-
elements in the formal conception, laws sociation members.
must also be substantively just. It questions Kebele tribunals had
whether a law is good or bad and whether powers similar to
the content of a law recognizes individual those of their coun-
rights or not. Accordingly, law is supreme terparts in the Peas-
ants Association).
and must be respected only when its content
is just. In general, the substantive conception
argues that if government of law is to be avoided, the legislature must

be guided by general principles of fairness to address what the content
of a law ought to be. However, there is a problem with the substantive
conception of the rule of law that it is difficult to decide which laws are
said to be just and which are not; for deciding the substantive fairness
of the content of a given law is necessarily shaped by a prevailing socio-
economic and political realities of a given legal system. Procedural rule
of law has different elements. Separation of power is one of the principal
elements of rule of law which prevent governmental abuse and preserve
liberty
4.1.2 Separation of Power

Check and Balance is, one of the central concepts in the quest for
limitation of power. It has a decisive role in the character of the government
system which determines the framework of the use of power. In this way,
it is aimed to prevent the centralization of power in a single organ by
preventing the legislative, executive and judicial functions from being
gathered in one hand. In the absence of proper separation of power and
check and balance among organs of the government the peoples my
exposed to majoritarian tyranny.38 When the legislative and executive
powers are united in the same person, or in the same body, there can be
no liberty; because apprehensions may arise, the same organ may enact
tyrannical laws, to execute them in a tyrannical manner. To combat such
problems the constitution should establish accountability mechanisms.
There are two principal complementary accountability mechanisms that
constitutions establish to ensure that the limits on government power are
not abridged at a stroke of legislation or other government action. The
first is the vertical or direct accountability mechanism whereby citizens
hold their government accountable through periodic election. This
mechanism establishes external controls or constraints on the state organs
exercising government power. Elections are perhaps the most common
accountability mechanisms whereby the people exercise control over
the fate of their political leaders. Elections provide periodic yet regular
opportunities for citizens to evaluate and, consequently, reward or
punish those who exercising political power. Because of their rewarding
and punishing potential, elections can serve as crucial accountability
mechanisms. The other is horizontal accountability mechanisms in
the form of separation of power within the state structure to ensure
that political organs comply with constitutional limits. Separation of
power establish horizontal accountability mechanisms within the state
structure to ensure that each government organ wields the power to

cabin the exercise of power by other state organs in accordance with
the constitutional rules of the game. Montesquieu formulated a theory
for the separation of powers as a means to prevent governmental abuse
and preserve liberty, which he defined as “the right of doing whatever
the laws permit”. In his view, “power should be a check to power” and
so that the legislative, executive and judicial functions of government
should all be held in separate hand.
Experience of countries in realization Check and balance

A. United States of America
The American system of separation of power and check and
balance can cite as example in the context of limiting the power of the
government. In the United States of America any bill which is initiated
by the House of Representatives shall be submitted to the Senate. The
Senate shall deliberate on the bill. If the bill is accepted by the Senate, it
shall be submitted to the President for approval. If the President objects
to the draft bill, he shall return the bill to the House where it originated
together with his objection. From this we can understand that In the
U.S., the head of the government (the President) is empowered to veto
the legislative initiatives of the Congress (the Senate and the House of
Representatives). The presidential veto may in turn be overridden by
a two-third vote of the Congress. The Congress may also impeach the
President. The courts have the power to review the constitutionality
of legislative and executive measures. The legislature and executive
can in turn overturn decisions of the courts through, among others,
constitutional amendments. The US Constitution therefore establishes
three different institutional veto points namely bicameralism, presidential
veto and judicial review. The principal feature of the US Constitution is
that it does not allow an individual to exercise different powers or act in
different capacities at the same time. For example, members of Congress
are not allowed to become members of the Executive or the Judiciary.
Turkey
Turkey had been following parliamentary system of government up
to April 16/2017. As it is known, the 3 powers composed of legislative,
executive and judiciary are not completely independent from each other
in the parlamentery system of government, Parliamentary systems
naturally lead to weak checks and balances between the legislative and
executive organs of government. Since the government establish from
the parlamenr this system creats plurality of seats. For this reason,
many regulations not approved by the government do not pass through
the parliament. On the other hand, the government has the potential
to pass almost every regulation that it wants in a way through the
parliament. The government proposes a bill and the parliament votes on
it. Moreover, the executive branch had two voices. The prime minister’s
statements may contradict with the statements of the president, which
might then result in conflict. In addition to this, the same person could
be part of both legislative and executive branches, diminishing the
efficiency of the separation of powers. For instance, a minister could also
be a parliament member at the same time, which means the legislative
and executive powers were merged in one person. Currently, Turkey
follows presidential system of government. Some scholar argues that,
the current model resembles the Latin American examples of super-
presidentialism more than the American model. This system authorizes
the president to (a) issue decree laws, (b) dissolve Parliament, (c) appoint
Cabinet members without parliamentary approval, and (d) appoint
more than one-third of the members of the Supreme Board of Judges and
prosecutors. Some critics of the system claim that The main objective of
this Constitutional Amendment, is not to set up “presidential system”
or “Turkish-style presidential system” rather its actuall objective is to
establish a system of “union of power” in Turkey”. Turkey is moving
towards one-man rule, stating that powers concentrated only with the
president. While presidentialism can, in theory, maintain effective checks
and balances, this requires the institutionalization of some mechanisms
in the system, which includes bicameralism, mutual veto powers and
federalism. In the absence of such mechanisms, a presidential regime
can endanger checks and balances as well as the proper functioning
of democracy. Turkey adopts neither bicameral parliament nor federal
system of government. The new turkey presidential model puts the
judiciary under the control of the executive. This model made it possible
for the president to maintain his/ her link with their political party. From
this we can understand that check and balance is still in question under
the Turkey system of government.
Ethiopia
The Ethiopian Constitution establishes a parliamentary form of
government whereby the head of government is elected by and from
the members of the hose of people representative, which is composed of
representatives directly elected by the people based on equal suffrage.
The head of government (the Prime Minister) is selected by and from
the political party or coalition of political parties that controls the

majority seats in the HPR. While the Prime Minster is elected as the
head of executive organ, he/she retains her/his seat in parliament. In
addition to this the prime minister selects members of the executive
organ from among members of house of people of representatives. As a
result, the legislative and executive organs of government will often, if
not always, have similar views. There has not been any instance where
members of the ruling party voted against a legislative proposal tabled
by the head of the executive. Because of the principle of democratic
centralism, the Ethiopian legislative organ, the house of people
representative, has never initiated any legislative proposal, nor has it
substantively modified any legislative proposals from the executive. In
a parliamentary form of government with a strong tradition of party
loyalty, the legislature and the executive are practically one and the
same, and cannot reasonably be expected to effectively constrain each
other. Such a situation, necessarily leads to a fusion of legislative and
executive functions. Consequently, horizontal accountability will not
be an effective controlling mechanism. Moreover, despite the fact that
the Ethiopian Constitution establishes a bicameral form of parliament,
the Upper House, the House of federation, does not have any role in
the enactment of laws. According to the Constitution, the House of
Federation does not have any role in the law-making process. Only the
HPR has the power to make laws on matters assigned to the federal
government. As such, the House of Federation does not have the power
to prevent the enactment of laws that contravene the Constitution. Thus,
within the Ethiopian constitutional structure, bicameralism does not
serve as an effective horizontal accountability mechanism.
4.2 LEGAL SOURCE AND BACKGROUND OF

THE SIX CODES
How many countries have ‘Codes’ as a basic legal source in the
world? In how many countries legal systems the term ‘Codification’
exist? Are there common features of codification used as a basis for
comparison and analysis? Although the exact number of codes is
uncertain today, the UNESCO-sponsored survey on the basic sources
of various legal systems in 1957 reveals that from 110 countries 73
countries had legal sources called ‘codes’ and the work of ‘codification’.
In other words, codification exists in 67 per cent of known legal systems
and each system consists of an average of 6 codes. This figure seems to
suggest that codification has become prevalent in most existing legal

systems.
Despite its wide existence, the meaning and role of codification is
different on what period and which country is considered. It may also
take different forms since it may be required to fulfill different functions.
It could be resorted to as a means of self-expression on nationhood or
statehood as in the developing countries. Or it represents a means of
assertion of a novel social and political system as in the countries of
Eastern Europe. Academics in this field offer a large number of definitions
which reflect a common agreement that a code is an enacted, organized
statement of law in a particular field. But they offer no consensus as to
the drafting style, level of comprehensiveness or exclusivity required to
make an instrumental a code. In modern legal systems, legal reforms
are introduced through legislation. When the legislative reform is
comprehensive and professes to encompass an entire legal field, it is
customarily defined as ‘codification’, and its ‘product’ as a ‘code.’
Originally, codification was part of the history of European Civil
Law countries, following the tradition of Roman law and the model
of the Codex Justinianus (6th century A.D.). Later, however, the idea
of codification extended beyond European countries and spread over
almost all over the world. The civil law of Rome has spread over
Continental Europe, and has retained its authority for many centuries;
the French Code has been largely adopted by other countries; and even
at this early stage of its history the German Code has been made the
basis of the codification of the private law of Japan. The first major wave
of codification outside Europe was inextricably linked to colonialism.
Others were enacted by sovereign, non European states though still
largely under the influence of European models. The French, Swiss,
German, and Austrian models are among the continental European
models that have strongly influenced the rest of the world.
By making a historical and comparative reference to these four
influential European countries, Gunther A. Weiss (hereinafter Weiss) has
identified six core features of European codification. He has indentified
the six core features of continental European codification as:
(1) Authority
(2) Completeness
(3) System
(4) Reform
(5) National Legal Unification and

(6) Simplicity
Weiss has explained, although there is no general consensus in the
literature with respect to which of these elements and to what degree
are necessary, there are certain consensus in the literature when scholars
explain codification. He also emphasizes that it is a familiar problem
with complex and abstract phenomena and this problem is solved by
referring to Max Weber’s ‘ideal type’ by combining varied empirical
significance in order to create a model of taught. These core features
of codification are helpful in understanding reality and in qualifying
certain efforts as codification.
This article aims at applying the ‘Authority’ core feature to the
Ethiopian civil code (and later the remaining core features) in order to
critically analyze whether the Ethiopian civil code complies with the
continental European codification or not.
Ethiopia is one of the Africa’s states highly influenced by the model
of continental European codification. During the regime of Emperor
Haile Sellasie, particularly between 1957 and 1965, a group of highly
complex codes – Civil code, Civil Procedure code, Penal code, Criminal
Procedure code, Commercial code and Maritime code – were introduced
which gives Ethiopia one of the most modern legal systems in the
World. Before the introduction of these codes, Ethiopia operated with
an informal mixture of legislative/executive and customary laws. Penal,
Civil, Commercial and Maritime Codes were modeled on Continental
European Law and the remaining two Procedure Codes were based on
British-Indian Common Law Models. The introduction of these codes
and Ethiopia’s herculean effort towards modernization was described
as unique for its ‘eclecticism’ and categorized the country as a ‘mixed
legal system’. This is because of two apparent reasons. On the one hand,
unlike most African countries which retained at least some post-colonial
parental ties, Ethiopia (which has never been colonized) makes voluntary
reception of foreign laws on the basis of what seems best, and on the other
hand, the choice resulted in modeling from two different legal systems.
As stated in the prefaces of most codes, the purpose and goal of these
codes was, on the one hand, to establish a perfect knowledge of the law
by providing a clear, systematic, compact, complete and authoritative
statement of the law and on the other hand, to develop Ethiopian legal
system towards modern system. As a result, the introduction of these set
of modern codes marks the end of unwritten and customary scattered
rules and the beginning of the modern legislative framework of Ethiopia.

Apart from the Penal code which was entirely replaced by the 2004
criminal code and some scattered amendments of Civil and Commercial
Codes, all these six codes govern most fields of current legal activity and
remain to be in force as primary source of law.
The civil code of Ethiopia was one of the codes highly influenced
by the continental European model. The Ethiopian authorities took
the side favoring the continental system by calling the French jurist to
work out the preparatory plans of the civil code. As a result, the French
man Rene David was the first well known comparative law jurist which
codified the civil law. Thus, the Ethiopian civil code was to a large extent
modeled on the French Code, and in this manner the French code had a
direct influence on the Ethiopian civil code.
Unlike other legal systems that have grown from a tradition dating
back to hundreds of years of development, the Ethiopian civil code with
its twenty one part featuring 3367 articles developed over a short span
of time. For nearly fifty two years, the civil code has been at the very
heart of Ethiopian civil law and incorporates many legal concepts and
institutions of continental European law, such as legal person, family,
succession, goods, property, literary and artistic ownership, tort, agency,
contract, arbitration and so on.
Authority
Authority is one of the elements of continental European
codification that Weiss has identified. Basically, this element reflects
that codification must be enacted by a legislator competent to make law
and hence, the exercise of legislative authority defines codification as a
modern codification. With respect to the authoritative element, Weiss
has explained that the history of codification is the history of legislation
and codification reflects the evolution (emphasis added) from custom
to the collection of preexisting law to legislation as positive law. Thus,
codification itself became the source of law. In the history of continental
European codification, this core feature appeared as a transition from
old to new perception through evolution by the thesis of historical
school taken over by the sociological school of law. According to Weiss,
Codification does not derive its authority only from cases, scholarly
discussions or reference to other sources of law.
A closer look at the history of Ethiopian civil code with this core
feature reveals the following two factors. First, the nature of Ethiopian
civil code is more revolutionary than evolutionary; and second, there is

a question of the exercise of legislative authority over the civil code.
With regard to the first nature, Ethiopia has chosen to have a civil
code in the absence of previous monuments. Prior to the introduction
of the civil code, there existed neither a collection of jurisprudence nor
a doctrinal work on the civil law; neither were there any laws except
some very fragmentary dispositions contained in a law on loan, a law
on nationality and an ordinance on prescription. However, Ethiopia
has had a functioning system with indigenous customary laws from
different ethnic groups and some legislation, primarily in the public
sphere, in the form of statutes and decrees from imperial government.
For centuries, Ethiopia was ruled by an amorphous combination of
customary laws. Religious laws like ‘Fetha Nagast’ (Law of the Kings)
were also applied under the monarchical administration in limited
areas of the country. Ethiopia, during the codification process, wanted
to change and replace these scattered customary and religious rules to a
comprehensive code and wishes the code to be a program envisaging a
total transformation of the society. This ambition was similar to the core
features of codification that had happened elsewhere in Europe which
evolved from custom to the collection of preexisting laws to legislation as
positive law. Nevertheless, the transformation of the society in Ethiopia
was created by importing the best out of the external systems of law
and practices that appeared to have worked in European societies. Such
laws were, however, supposed to be adapted in line with the Ethiopian
traditions and culture. Emperor Hailesellasie I directed the codification
commission and the foreign drafters to incorporate customary laws
and traditional legal institutions of the country. Most importantly, the
Emperor asked the reflection and combination of customary rules into
the civil code and in such way that they would fit to the existing and the
future needs of the country. However, the draftspersons mostly were
guided by the keen desire of modernization and largely disregarded
and failed to give adequate place to customary laws and institutions. In
connection to this, Ofosu-Amaah has provided the following:
Although the point of adaptation was stressed and the importance of
infusing Ethiopian traditions and culture into the laws was an objective,
it was clear that those who were responsible for the new codes were
guided by the keen desire of modernization rather than by attempts to
infuse traditional practices and values.
Despite the emperor’s guidelines and some effort to include

customary laws in the civil code and despite the protest against the
neglected of the much developed centuries-old legal tradition, the civil
code was officially promulgated without leaving adequate space for the
widely-practiced customary mode of dispute settlement. It repealed not
only customary rules that were inconsistent with the provision of the
code but also all customary rules concerning matters provided for in the
code. Nor did the code allow some grace period until the code could be
disseminated – both physically and in content – but rather its immediate
enforcement was declared. Thus, the effort resulted in repealing written
and customary laws in Ethiopia and ended up with the importation
of a foreign code. This has brought interference with the operation of
customary and religious rules and brought a complete disruption of
the institutions most closely valued by members of traditional society.
Hence, Ethiopia decided to bring about change in its legal system through
a revolutionary way rather than an evolutionary one. In this case, the
Ethiopian civil code is revolutionary than evolutionary. What is striking
is that even if the code eliminates customary laws, the application of
customary rules has continued to the present time. Furthermore, as shall
be argued in chapter three, the 1995 Ethiopian constitution formally
recognizes the jurisdiction of religious and regional customary courts
which inevitably raises the vital question of the status of pre-code
customary laws.
Second and following from the above, a general observation can
be made on the exercise of legislative authority over the civil code. The
Ethiopian civil code was promulgated on May 5, 1960 by the parliament.
Here, we can conclude that the civil code was enacted by the competent
legislator, i.e. the parliament and had its legislative authority as Weiss
has identified. Nevertheless, when the civil code is analyzed through its
fifty two years life span, there is an apparent question over the exercise
of legislative authority and the validity of the code under the current
federal system of government. Here, as identified in the introductory
section, the analysis is made irrespective of time consideration as the
civil code is still in force and applicable in the country. Therefore, it is
legitimate to make an analysis over the civil code with the core features
of codification irrespective of time.
Despite change in political and legal arrangement, the Ethiopian civil
code more or less survived all political upheavals. Thus, a general remark
on the constitutional development of Ethiopia will let us understand the
current status of the civil code. Since the promulgation of the Ethiopian
civil code, Ethiopia has adopted different constitutions within the last
five decades. The regime of Emperor Haile Sellasie was characterized
by its two imperial constitutions: the 1931 and 1955 constitutions. These
constitutions were the basis for the enactment of the civil code and
they are based on the principle of political and legal centralization and
the legend of the Solomonic Dynasty and religious legitimacy. After
fourteen years of power since the enactment of the civil code, the regime
of Emperor Haile Sellasie came to an end with the coming to power
of the Derg military regime. The 1987 Derg constitution, even if it did
not alter the ideals of political and legal centralization, came up with a
fundamentally different ideology and declared the country to a socialist
state. The ideological basis of this constitution was the construction of
an egalitarian society. All existing imperial laws including the civil code,
orders, and regulations were declared to continue to have effect unless
they are contradictory with the Derg constitution. Because the Derg
regime did not alter the ideology of political and legal centralization,
the civil code more or less continued to be a source of civil regulation.
The transitional charter which crumbled the Derg regime and which
was the basis for the current constitution was introduced during (1991
to 1994). To this end, the 1995 constitution has come up with a complete
divergence from previous regimes by establishing federalism as a political
structure. With a complete departure from the ideology of political and
legal centralization of the Imperial and Derg constitutions, the 1995
constitution formally introduces a political and legal decentralization.
By establishing a federal form of government, the constitution offered
for plural law-making institutions and hence, legislation that affects a
citizen can have either the federal or the state legislature’s source. Like
the Derg regime, all prior laws – both from the imperial and Derg regimes
– were declared to have a continual effect unless they are inconsistent
with the provisions of the constitution. With this declaration, the civil
code maintained its life to the present time. But this time the extension
of the application of the civil code is not as easy as the Derg regime and
there is a vital question over the exercise of ‘legislative authority’ and
the application of the civil code in state jurisdictions.
Who has the power to legislate the civil code?

Or who is the competent legislature regarding civil laws? Is the
provision giving the civil code a continuous effect valid within the
state jurisdictions? In principle, civil law is a matter reserved for state’s
legislature by virtue of article 52 of the constitution. However, as a
matter of exception the federal government may enact civil laws when
the House of Federation declares that it is

necessary to enact such laws to establish and
sustain one economic community. Because Hints
the House of Federation is composed of The Suspen-
representatives elected by the state councils, sion of the 1955
the power to decide which civil laws should Constitution: Proc-
have a national application is entrusted to lamation 1 of 1974.
it. Thus, civil laws that will have a national Art 5(a) of the Proc-
application can only be enacted if the House lamation stated that
of Federation decides and directs the House ‘the Constitution of
of Peoples Representatives to enact the same. 1955 is ‘hereby sus-
pended’. However,
This shows two things: first there will be no
by virtue of art 10
single national civil code unless the House
of the Proclamation,
of Federation consent for the purpose of the then ‘existing
establishing one economic community and laws that did not
second, each state has an exclusive right to conflict with the
determine and enact civil laws within their Proclamation and
jurisdictions. In other words, the competent future laws, orders
legislature to enact civil laws is state’s and regulations’
legislature. In this case, the parliament’s were kept alive and
declaration of the continuation of the operative. Art 7 of
the Proclamation
application of the civil code as long as it is
also allowed ‘all
consistent with the constitution is valid only
courts’ to ‘continue
to the extent that the federal jurisdiction their normal func-
is concerned. This is because the House of tions’).
Federation does not give its opinion on the
application of the civil code in the whole
country. Furthermore, apart from repealing and changing certain
sections of the civil code, none of the states has declared the status of
the civil code in their respective jurisdiction. For example, provisions
of family law from the civil code (Articles from 198 to 338 and 550 to
828) were repealed and replaced with new family codes by some states
and by the federal government independently and with their respective
working languages. The rest of the states either apply the provisions of
the civil code or opt for state customary or religious rules. As a result,
the exercise of legislative authority over the civil code is constitutionally
questionable and its applicability from state to state is different.
4.3 THE DEVELOPMENT OF THE ETHIOPIAN

PENAL LAW
The history of Ethiopian Criminal law reveals the following
important legislations incorporating the Criminal law of the country
before the enactment of the existing Criminal Code of FDRE, 2005.
• The Fewuse Menfessawi,
– The Fetha Negest,
– The Ethiopian Penal Code, 1930.
– The Penal Code of the Empire of Ethiopia, 1957.
– The 1974 Revolution and Criminal Law
– Special Penal Code of 1981
4.3.1 The Fewuse Menfessawi (The Canonical Penance)

The first attempt to compile the law was made by the emperor
zar‘a Ya‘equob (r.1434- 1468). Desiring to govern his realm by a written
law rather than by amorphous customary law and oral tradition, the
emperor ordered distinguished Ethiopian Orthodox Church Scholars to
compile an authoritative written law. The compilation had 62 articles
mainly on criminal matters. Since this was far less than comprehensive,
it was not able to resolve many of the legal problems that arose during
that period.
4.3.2 The Fetha Negest (The Law of the Kings)

The failure of the Fewuse Menfessawi led to the next codification
by the same
Emperor Za‘ra Ya‘eqob . The Fetha Negest is a very interesting legal
compilation.
As highlighted by Graven (year), Fetha Negest included the
following important criminal law principles :
• those concerning ―intention” and ―negligence”,
– relating to the proportion between the fault and
sanction,
– the individualization of punishment,
– the forgiveness and redemption of offenders, and Øthe
sharing of guilt case of fighting etc.
These solutions in case of fighting etc. are most current, familiar and
understandable situations for the people.
The Fetha Negest was formally incorporated into the Ethiopian
legal system in 1908 by Emperor Menelik II. It can be said that in most
cases, the Fetha Negest has attempted to incorporate the most suitable
legal principles, which could be conceived in the epoch of its emergence.
However, it suffered from the following drawbacks:
• It lacked the systematization and other characteristics of
modern codes,
– Neither the ‗specific‘ is differentiated from the ‗
general‘ nor the
‗exception‘ from the ‗rule‘,
• Aggravating and extenuating circumstances were not clearly
provided for,
– In general, the arrangement of the provisions is so
haphazard that it is hard to locate the most relevant
provision ,and
– The Fetha Negest was accessible and understandable
only to those who continuously studied it i.e. the clergy.
The criminal provisions of the Fetha Negest were applied in Ethiopia
until they were replaced by the Penal Code.
4.3.3 The Ethiopian Penal Code of 1930

The Penal Code of 1930 reflects the norms and values of the old
absolutist monarchy of the generation of Emperor Menelik II and
Emperor Zewditu (i.e. the era between 1889 and 1930). It was also drawn
up in a less systematic and clear manner and did not follow the rules of
a modern codification process.
The main attributes of the Code were as follows:
• The crimes and respective punishments were defined in exact
fashion, and
– The penalties were considerably softened and improved
by setting the fines in proportion to the then economic
and monetary situations of Ethiopia.
– The Code under its Special Part protected the three
great classic categories of interests. These were:
 The state and Community,

 Persons, and 3. Property.
Provisions of ―Petty Offences” were incorporated towards the end
of …..? .The sources of the Penal Code of 1930 seem to have been the
Fetha Negest and the Siamese Penal Code and the Penal Code of the
French Indo-China of the time. The drafter of the Code is believed to
have been a Frenchman. The Penal Code of 1930 was in force until it was
repealed and replaced by the 1957 Penal Code of Ethiopia.
4.3.4 The Ethiopian Penal Code, 1957

Criminal laws do indeed reflect the conditions generally prevailing
in the country where they apply. Therefore, they necessarily change. If
substantial changes occur in the society, substantial modifications also
become necessary in the legal and other rules. The old codified laws
used in Ethiopia, approximately between 1450 and 1931, did not follow
the rules of modern codification process and thus eventually proved
unsatisfactory. When the necessity was felt for transformation of legal
system in the second half of the 20 century, the modern codification
process was initiated.
The task of drafting a new comprehensive penal code was entrusted
to Jean Graven , a Swiss jurist who at that time had been the Dean of
Faculty of Law and President of the Court of Cassation in Geneva ,
Switzerland.
The Sources and the Merits of the Penal Code Of 1957:

Obviously, the Criminal Code that appears in present-day society
should be able to provide solutions to the complexities of modern life.
In view of this fact, the drafter looked into the most modern penal codes
that embodied the latest thinking in the sphere of criminal law. The
primary source of the Code was the Swiss Penal Code of 1937 and the
pre- 1957 Swiss Jurisprudence. The secondary sources were the French
Penal Code of 1810 with respect to general format, the Yugoslav Penal
Code of 1951 in relation to military offences, and more generally the
code of Norway, Denmark, Poland the Federal Republic of Germany, the
Netherlands, Portugal, Spain, Italy, Brazil and Greece. Some provisions
of ‗the Universal Declaration of Human Rights‘ and ‗the Red Cross
Geneva Convention‘ were also incorporated in the 1957 Penal Code of
Ethiopia. The incorporation of the latest principles of law in present
day jurisprudence made the penal code of Ethiopia one of the modern
and sophisticated criminal codes of the time.
In addition to this, the drafter also included a wide range of
provisions that covered legal institutions that might arise in the future.
New concepts, not only juridical, also sociological and criminological
were developed into a homogenous penal code, which aimed at the
prevention of crimes and rehabilitation of criminals. The object of
criminal law should not be retributive from the outset, despite the fact
that punishment will serve as deterrent of prospective offenders.
It was the rationale of the penal code and the concepts embodied
in some of its provisions that aroused bitter controversy among the
members of the codification commission. The Fetha Negest, as well as
the Penal Code of 1930, started from the presumption that criminals
have to pay, i.e. have to be penalized for the injury they would cause
to the individuals and to society at large. The objective of punishment
was, according to these laws, in essence retributive. Now the draft
penal code came up with new proposition with principal objective of
that the prevention of crime and rehabilitation of criminals. It was this
deviation from the traditional approach that took some members of the
commission by surprise
After an arduous exchange of arguments, the draft was accepted
mainly because it aimed at not only satisfying the then state of affairs, but
guiding society as an instrument of change. The new code was intended
to affect national unity and to provide for the progressive development
of Ethiopia. On some points, however, compromises had to be made.
Some were the following:
• Collective Punishment: According to customary law, where
offences had been committed by one or several persons, it was
found impossible to ascertain which of the persons involved
was the criminal, the court could, where equity so required,
order ‗the damage‘ to be made good jointly by the group
of persons who could have caused it and among whom the
persons who caused the damage were certain to be found.
As this traditional practice seemed not be in line with rule of law
and human rights, the compromise formula that was reached after a
long debate between the foreign experts and the Ethiopian members of
the codification commission was that, ‗where an offence is committed
by a group of persons, the persons who proved to have taken no part in

the commission of the offence shall not be punished.‘
• Mutilation of Human Body As Punishment-Abolished:
According to the old practice, habitual offenders were
punished by mutilating the human body so as to give it the
maximum deterrent effect. There was a general consensus not
to incorporate this form of punishment. However, flogging
was to be inflicted on such offenders provided that it was
medically ascertained that the life of the offender would not
be endangered.
• ‗Presumption of Innocence‘- Introduced: In the past, the
accused was required to prove his innocence. In modern penal
legislation, however, the generally accepted principle is that
the accused enjoys the presumption of innocence, according
to which the burden of introducing evidence to prove the
guilt of the accused is on the Prosecution. This is opposed to
the previous principle of ―presumption of guilt”. In addition
to this, accused has the right to produce defense witnesses.
• Rules Applicable to Young Offenders: In the past, all offenders
who were thought to have the capacity to discriminate
between what is good and what is bad were brought before
the regular courts. In the modern penal law, on the otherhand
infants are completely exonerated from criminal provisions.
Infancy is according to art 52 of the Penal Code, ‗the period extending
from birth up to nine years.‘ Infants are not deemed to be responsible for
their acts under the law. The measures to be taken against such offenders
should have curative, educational or corrective measures as may be
necessary for their own good. Penalties and measures to be imposed on
offenders between the ages of 9 and 15 years were those provided by
Arts. 161-173 of the Penal Code. Thus, young persons were not subjected
to the ordinary penalties applicable to adults nor should they be kept in
custody with adult offenders. For purposes of the criminal law, the age
of majority for young persons is 16 years.
• Probation and Suspension of Sentences: In the past all
forms of sentences were executed. Present-day penal
legislation provides that certain offenders may, under defined
circumstances, be granted release on probation or the sentence
may be suspended for a fixed time. Even after the execution of
a sentence of imprisonment, one may be granted a reduction
of the term which one is required to serve. In accordance

with the rationale of modern principles of criminal law, the
Ethiopian Penal Code aims at not punishing the offender, but
at rehabilitating and educating him. As a result, it provides
ample opportunities for probation and suspension of
sentences.
• The Personal Nature of Criminal Punishments and
Measures: If a convicted person died before the execution
of a sentence, there was, according to customary laws, the
possibility of proceeding against his property or the property
of his next of kin. This was not retained in the Penal
Code of 1957. The principle is that, ‗crime is personal to the one
who is found to have committed it‘, it is thus an innovation made in the
present criminal law.
• The Punishment for Burning of Crops (Arson): since
Ethiopian society is predominantly an agricultural society,
severe penalties are prescribed for offences relating to or
committed on agricultural products. Recognizing this deep-
seated value, burning of crops (arson) entailed more severe
penalties than other comparable crimes provided in the new
penal code. In addition to the above matters, drafter of the
Code, Jean Graven, also pinpointed the following areas where
new and old ideas have been reconciled:
• Capital punishment and corporal punishment (flogging) were
maintained but with all the necessary precautions as to the
instance of application and the conditions of administration.
– Pecuniary punishments particularly confiscation of
property were made to be applicable in limited instances
of serious crimes against the sovereign and the state
– The principle of collective responsibility for certain
crimes involving tribes or anonymous criminals were
made to rest on customary practices which had their
own justification.
– The severe provisions on abduction and enslavement
and the flexibility one sees with regard to adultery,
concubine and illicit damage to property by stray
animals of others are reflections of the changing modes
of life of Ethiopia. In the words of the drafter while
enacting the Penal Code :
“…the Ethiopian legislator has made every effort to construct a complete edifice, one
maison mouvelle… where one can find order and peace security and progress, united
in a single whole.”
Thus, the historical objective behind the enactment of the Penal
Code of 1957 was to let it serve as a unifying force and as a machinery to
enhance future development of the country the Penal Code of Ethiopia
was promulgated on July 23, 1957 and came into force on May 5, 1958,
and was in force until May 8th 2005.
4.3.5 The 1974 Revolution and Criminal Law

Following the 1974 revolution, a “revolutionary” system of
neighborhood justice emerged. It was difficult to distinguish between
criminal acts and political offenses according to the definitions
adopted in post-1974 revisions of the Penal Code. In November 1974,
a proclamation which introduced Martial Law, was introduced. The
martial law set up a system of military tribunals empowered to impose
the death penalty or long prison terms for several political offenses. The
Proclamation applied the law retroactively to the old regime’s officials.
The revolutionary government these officials responsibility for famine
deaths, corruption, and maladministration. Special three-member
military tribunals sat in Addis Ababa and in each of the country’s
fourteen administrative regions.
In July 1976, the government amended the Penal Code of 1957
to institute the death penalty for “anti-revolutionary activities” and
―economic crimes”. Investigation of political crimes came under
the overall direction of the Revolutionary Operations Coordinating
Committee in each awraja. In political cases, the courts waived search
warrants required by the Criminal Procedure Code. The government
transferred jurisdiction from the military tribunals to kebele and peasant
association tribunals.
Political trials constituted the main business of these tribunals until
1978.
Generally, the 1976 revision of the Penal Code empowered
association tribunals to deal with criminal offenses. The revision limited
the jurisdiction of association tribunals to their urban neighborhood or
rural area. Elected magistrates, without formal legal training, conducted
criminal trials. Procedures, precedents, and punishments varied widely
from tribunal to tribunal, depending on the imperatives of the association
involved. Peasant association tribunals accepted appeals at the Wereda

(district) level. Appellate decisions were final. But decisions disputed
between associations could be brought before peasant association courts
at the Awraja level. In cities, Kebele tribunals were similarly organized
in a three-tier system. Change of venue was arranged if a defendant
committed an offense in another jurisdiction.
The judicial system was designed to be flexible. Magistrates could
decide not to hear a case if the defendant pleaded guilty to minor
charges and made a public apology. Nonetheless, torture was sometimes
used to compel suspects and witnesses to testify. Penalties imposed at
the local association level included fines of up to 300 birr. The tribunals
could determine the amount of compensation to be paid to victims. The
tribunals could impose imprisonment for up to three months and hard
labor for up to fifteen days.
Association tribunals at the Awraja or Wereda level handled
serious criminal cases. These tribunals were qualified to hand down
higher sentences. Tribunal decisions were implemented through an
association’s public safety committee and were enforced by the local
People’s Protection Brigade. Without effective review of their actions,
tribunals were known to order indefinite jailing.
The 1976 Special Penal Code, which was further elaborated in 1981,
created new categories of so-called economic crimes. The list included
hoarding, overcharging, and interfering with the distribution of consumer
commodities. More serious offenses involved: engaging in sabotage at
the work place or of agricultural production, conspiring to confuse work
force members, and destroying vehicles and public property. Security
sections of the Revolutionary Operations Coordinating Committee
investigated economic crimes at the Awraja level and enforced land
reform provisions through the peasant associations. These committees
were empowered to charge suspects and held them for trial before local
tribunals. Penalties could entail confiscation of property, a long prison
term, or a death sentence.
4.3.6 Special Penal Code of 1981:

In 1981, the Revised Special Penal Code replaced the Special Penal
Code. This amended Code included offenses against the government
and the head of state, such as crimes against the state’s independence
and territorial integrity, armed uprising, and commission of
“counterrevolutionary” acts. The 1981 amendment also included breach

of trust by public officials and economic offenses, grain hoarding, illegal
currency transactions, and corruption; and abuse of authority, including
“improper or brutal” treatment of a prisoner, unlawful detention of a
prisoner, and creating or failing to control famine. The Amended Special
Penal Code also abolished the Special Military Courts. The Code created
new Special Courts to try offenses under the Amended Special Penal
Code. Special Courts consisted of three civilian judges and applied the
existing Criminal and Civil Procedure Codes. Defendants had the right
to legal representation and to appeal to a Special Appeal Court.
4.4 THE JUDICIAL SYSTEM OF ETHIOPIA

The government of Ethiopia is now putting into place a
decentralized federal system of courts consisting of regional and district
courts consistent with the 1994 constitution. Each region has District
(Woreda), higher and supreme courts. There are also local Shari’ah
courts which hear religion and family cases involving Muslims. The
Federal High Court and Federal Supreme Court have jurisdiction over
cases involving federal laws, transregional issues, and issues of national
import. The president and vice president of the Federal Supreme Court
are recommended by the prime minister and appointed by the House
of People’s Representatives; for other federal judges, the prime minister
submits to the House of People’s Representatives for appointment
candidates selected by the Federal Judicial Administrative Council.
The constitution provides for an independent judiciary. Trials are
public. Defendants have a right to legal counsel and a public defender’s
office provides counsel to indigent defendants. The law, however, does
not allow the defense access to prosecutorial evidence before the trial,
and the current judiciary suffers from a lack of trained personnel and
financial constraints. In 1995, the government began training new
judges and prosecutors. However, it is estimated that the creation of a
fully independent and skilled judicial system will take several decades.
In 1992, a special prosecutor’s office was established. In 1994 this
office began trying defendants charged with crimes against humanity
during the Mengistu regime. As of 1997, approximately 1,300 detainees
were charged with war crimes. Up to 5,198 persons had been charged
with war crimes by the end of 1999.
The Council of People’s Representatives in October 1999 passed
enabling legislation to meet the constitutional requirement for the
creation of a human rights commission and office of the ombudsman.

The commission has full powers to receive and investigate all complaints
of human rights violations made against any person. By the end of 1999,
neither entity was operational.
4.4.1 Ethiopia’s Justice System Reform at Crossroads:

Impediments relating to Institutional Continuity, Ethnic
Politics and the Land Regime
The concept of ‗Revolutionary Democracy‘is affiliated to Vladimir
I. Lenin‘s ‗New Democratic Revolution‘(NDR). For Lenin, NDR meant
an interim phase toward socialism and communism. According to
Lenin, the victory of ―a revolutionary-democratic dictatorship of
the proletariat and the peasantry” will enable the communist party
―to rouse Europe, and the socialist proletariat of Europe”. On the
contrary, ‗Revolutionary Democracy‘ in post-1991 Ethiopia embodied
contradictory meanings, because it claimed to represent ‗economic and
political liberalization‘ in official discourse, while it was clearly within
the ambit of Marxist-Leninist thinking in political party operations and
party-state relations. It was in the midst of such inherent contradiction
in the concept of ‗revolutionary democracy‘ that achievements were
attained in the formulation of the 2002 Justice System Reform Program
(JSRP) and the 2005 Comprehensive Justice System Reform Program
(CJSRP). The ‗democratic‘ limb of revolutionary democracy facilitated
the formulation of the 2002 JSRP and the 2005 Comprehensive Justice
System Reform Program, and on the contrary, its ‗revolutionary‘
limb (caused by the Marxist heritage of the political leadership) was
incongruent with most parts of JSRP‘s and CJSRP‘s recommendations.
The cutbacks in the pace of justice system reform were apparent in
2005/2006 (immediately after the 2005 elections) and from 2007 onward
under pledges of ‗democratic developmental statehood‘
There was indeed optimism that the attention given to justice sector
reform during the formulation of the program would be sustained in
its implementation phases as well. However, sixteen years after the
take-off towards Justice System Reform Programme in 2002, Ethiopia‘s
justice sector has regressed , and this can be verified by the facts that
were officially admitted (after the 2018 political reforms) regarding the
unconstitutional acts of various law enforcement institutions. Steadily
declining public trust in the justice sector (i.e., the legal and judicial
sectors) renders the discourse on justice sector reform as relevant and
expedient today as it was in 2002. This article focuses on certain themes

that are relevant in the way forward towards the reinvigoration of the 2002
and 2005 aspirations which, inter alia, require dealing with impediments
of reform. Section 1 presents an overview of institutional discontinuity in
Ethiopia‘s justice sector during the last decades, and Section 2 discusses
the current pursuits in law reform and the resumption of justice system
reform projects. The third and fourth sections deal with the problems
of institutional discontinuity in the coordination of the justice system
reform program and in relation to trends of scrapping codes of law in
the name of revision. Sections 5 and 6 respectively highlight the nexus
between good governance and justice sector reform, and the tension
between good governance and ethnic politics. Based on these themes,
Sections 7 to 10 highlight four challenges in justice sector effectiveness in
the context of ethnic politics. The themes are: law compliant citizenship,
peace and order in the context of diversity, the tension between multi-
ethnic civic identity and Article 39 of the FDRE Constitution, and the
constitutionality debate regarding the emblem on the Ethiopian flag.
Sections 11 and 12 respectively deal with the need for land reform and
normative gate keeping against predatory statehood.
Overview of Institutional Discontinuity in Ethiopia’s

Post1931 Laws and Justice Sector
Ethiopia‘s 1931 Constitution was a significant achievement in
lawmaking. The reformers of the period (who were regarded as
Japanizers) sought modernization and progress. Another significant
landmark in legal development was the Negarit Gazeta which began
to be promulgated in March 1942. In spite of its slow pace, justice
sector institution building (including the legal regime) continued,
and the attainments included the 1955 Revised Constitution. A major
achievement in this regard relates to the codification of six codes of law
–from 1957 to 1965– and the establishment of Faculty of Law at Haile
Selassie I University (currently Addis Ababa University) in 1963. These
achievements resulted from the modernization thinking of the period
and the belief in a legal system‘s instrumental function in development.
The 1960 Civil Code and Commercial Code had envisaged facilitating
the modernization of Ethiopia through the path undergone by the Global
North through reception of their institutions including laws. However,
legal institutions cannot be regarded as mere results of political will. Nor
can the law be regarded as a stand-alone toolkit for social engineering.
Indeed, progress in the legal regime and justice sector institutions has a
bi-directional relationship with the corresponding social and economic
realities that render a rational legal system and justice sector expedient,
and at the same time facilitate its development, implementation,
outcomes and impact.
Unfortunately, however, Ethiopia‘s pace of nation-building and legal
development (in 1942-1974) failed to catch up with unfolding realities
on various fronts, which include: (i) land reform, (ii) constitutional
reforms that, inter alia ensure equality in religion and ethnic identity, (iii)
reform towards constitutional monarchy, and (iv) the accommodation
of federalism in Eritrea in accordance with the UN General Assembly‘s
Resolution, rendered in 1950. In addition to these domestic problems,
the global economic system brought about widening gaps in balance
of trade in developing countries accompanied by the global oil crisis
during the early 1970s. As the regime failed to address the domestic
challenges and the effects of the 1973/74 global oil crisis, promises of
reform in Mid-1974 including a draft constitution toward constitutional
monarchy seemed to be too-little-too-late after the 1974 revolution.
There were indeed lost opportunities in land reform, nation-state
building and institutional development (including the justice sector)
which include the absolute monarchy‘s failure to reform itself during the
1960s and early 1970s. There was a similar failure to learn from models
of pragmatic reform (such as the South Korean path) that could have
been adopted upon the advent of the Dergue to power in September
1974. Such options could have been conducive to incremental and steady
institutional reforms (including the justice sector) thereby facilitating
institutional continuity in the organic improvement of lawmaking,
court systems, law enforcement, law practice and legal education. In
contrast to the modernization theory which was reflected in the legal
development pursuits of the 1960s, communism –that was tailored to
the 19th century realities of England, France and Germany– informed
policies in Ethiopia from 1975 until the late 1980s. Analogous to the
attempts to revise the 1955 Constitution toward constitutional monarchy
in 1974, the economic reform pledges of the late 1980s were eleventh-
hour attempts. It is to be recalled that a request for mixed economy by
Col. Atnafu Ababte was unduly suppressed in September-October 1977.
Even worse, the Dergue was too rigid to consider a political solution
(such as federation) to Eritrea.
Even though the land reform of 1975 was a positive achievement, its
extremely radical content was incongruent with Marx‘s views (whose
ideology was pledged to be pursued), because Karl Marx (1818-1883)
did not envisage nationalization of the means of production before the

attainment of the capitalist mode of production. According to Marx,
socialized production and private appropriation reach at a stage of an
irreconcilable contradiction under an advanced level of capitalism. He
argued that ―scattered private property arising from individual labor”
is transformed ―into capitalist private property” and he considered this
as ―the expropriation of the mass of the people by a few usurpers”.
Based on this premise, Marx envisaged ―the transformation of
capitalistic private property, already practically resting on socialized
production, into socialized property”. For Marx, this constitutes ―the
expropriation of a few usurpers by the mass of the people”.
At hindsight, it can be observed that Ethiopia‘s 1975 land reform could
have benefited from pragmatism and reason –as was the case in South
Korea– and this would have enabled the appropriate balance between
equity (distributive justice) and economic efficiency. Ethiopia‘s 1975 land
reform solely focused on distributive justice, and this has ultimately
brought about land fragmentation and shared impoverishment. Farm
size steadily declined owing to Ethiopia‘s rising population and the
slow pace in the transition to manufacturing-led economy. According
to a 2015 study by FAO, Ethiopia‘s ―average small farm size is 0.9
hectares”, and the study indicates the decline in average small farm
size ―from 1.43 hectares in 1977 to 1.03 in 2000”. For example, the
nationalization of modern farms (owned and managed by professionals
and entrepreneurs) in 1975 merely led to state farms that were largely
bankrupt and subsidized. Moreover, exceptions could have been made
to room rentals in urban house compounds as long as the parcel size did
not exceed the maximum (i.e. 500 sq. meters) that was allowed in the
1975 Urban Land and Extra Houses Proclamation. However, the rush of
the Marxists –during the period– was to avoid the tag of ‗revisionism‘.
Thus, pragmatic options of land reform (such as abolition of tenancy
and ensuring tenure security to smallholder farmers, compensation to
former landowners with exceptions stated by law, etc) would not have
been acceptable to the Ethiopian left. An ideology that emerged as an
anti-thesis against a fully developed capitalist mode of production was
imported dogmatically to a predominantly agrarian Ethiopia of the
Mid 1970s. With regard to the judiciary (in 1974-1991), there were extra-
judicial interventions such as military tribunals. But these interventions
did not involve simulations thereby leaving the judiciary to operate –on
its own– in commercial, civil, tax and non-political criminal cases. Even
though ordinary courts were recognized as the only judicial organs under
the 1987 People‘s Democratic Republic Ethiopia (PDRE) Constitution, a

military tribunal was established against the leaders of the coup that
was attempted in May 1989. The executive was thus resorting to such
tribunals whenever it needed intervention, and it did not need a façade
of ‗show trials‘ through the ordinary courts. However, special tribunals
outside ordinary courts are not formally possible after 1991 owing to
the pledges of constitutional democracy and separation of powers.
During this period, executive intervention in judicial matters could
only be done through the ordinary courts which eventually became
a modus operandi in many benches. Eventually, the level of political
intervention (in 2017, for example) included the act of gathering judges
and court staff for sessions that were known as ‗renewal‘ and ‗deep
renewal‘ (‗tehadiso’ and ‗tilq tehadiso‘). Although courts are declared
to be independent under Article 79 of the FDRE Constitution, there was
apparent intervention of the executive (and the political leadership)
because ‗revolutionary democracy‘ influenced the policy framework
(including the justice system).
Current Pursuits in Law Reform and Justice System Reform

Projects
Pursuits of law reform
There is an initiative toward law reforms by the Federal Attorney
General. To this end, it had organized a workshop conducted on June
6, 2018. As noted during a presentation at the workshop, there are
problems and limitations in the justice sector, which include:
a) deterioration in the quality of laws,
b) absence of a forum that facilitates consistent and meaningful
consultation,
c) absence of a scheme that can be used to analyze the extent to
which laws are just, effective and viable,
d) the erroneous view which unduly strives to discard laws
merely because they were enacted some decades ago while
older codes of laws in Europe are still operative, and
e) problems related to independence and effectiveness.
According to Dr. Mulugeta, the problems in the justice sector are,
inter alia, attributable to ―abrupt switch to different tracks (such as BPR)
analogous to being carried away with new songs and ―lack of forum
for consultation, discourse and analysis”. He also noted the ―gaps in
the institutionalization of achievements and performance, and gaps in

institutional memory.” Moreover he indicated other factors such as the
historical context and ―the internal operations and structures of justice
sector institutions.” The workshop aimed at facilitating discussion
on issues of concern in Ethiopia‘s justice sector. As Attorney General
Birhanu Tsegaye stated, an Advisory Council has been established,
and it is entrusted with the task of presenting ―proposals on certain
laws that are believed to narrow the political space in order for the
government to make amendments” which include the antiterrorism and
the charities and societies proclamations. ―The Council is conducting
studies to make sure whether the existing laws [comply] with the
Constitution” with a view to ―improving the justice system, ensuring
the rights of citizens and broadening the political space”. The Council‘s
Chairperson, Professor Tilahun Teshome, has likewise expressed the
need for justice sector reform in order to ensure rule of law, peace and
development. Dr. Gedion Timothewos, Coordinator of the Research
Team on the Antiterrorism Proclamation, stated that the Legal and
Justice Affairs Advisory Council has adopted a roadmap for three years,
based on research. He also pointed out that in addition to the workshops
and panel discussions, ―platforms will be created to incorporate the
views and ideas of political party leaders, journalists, prosecutors and
lawyers”.
The JLRTI study towards resuming justice system reform

projects
Justice and Legal Research and Training Institute (JLRTI) is expected
to resume the projects under the Justice System Reform Program based
on its mandate under Proclamation No. 1071/2018. The Federal Supreme
Court, Federal Attorney General, Justice and Legal Research and Training
Institute, and Higher Education Strategy Center have conducted a joint
study with regard to the gaps in the pace and attainments of the justice
system reform sub-programs that were formulated under the 2005
Justice System Reform Program. These studies were compiled under the
auspices of Justice and Legal Research and Training Institute (JLRTI)
and were presented as a joint study by presenters from the respective
justice sector institutions at the Joined-up Justice Forum workshop in
Adama on August 28, 2018.
The introduction of the joint study by justice sector institutions
(hereinafter referred to as the JLRTI Study) recalls the level of attention
that was given to the Justice System Reform Program during the initial
years, and it highlights the factors that

contributed to the decline in the pace of its
effective implementation. The study indicates Hints
the transfer of the coordination task [from “Most [jus-
the Justice System Reform Program Office at tice sector] institu-
the Ministry of Capacity Building] to Justice tions do not have
and Legal System Research Institute (JLSRI) offices or profes-
in 2005/2006. It appreciates the achievements sionals in charge
(during the coordination by JLSRI) in the field of justice system
of legal education reform which includes the reform activities.
development and implementation of a new Justice and Legal
Research and Train-
LLB Programme curriculum and academic
ing Institute does
staff capacity development pursuits.
not have an office
However, it notes that the attainments with a professional
in the judicial and law enforcement staff that is specifi-
subprograms of the 2005 Comprehensive cally designated to
Justice System Reform Program were conduct the justice
inadequate after the coordination function system reform
was transferred to JLSRI. According to the activities at required
study, there was further regression in the level. There was
Justice System Reform Program after JLSRI no institution that
follows up, evalu-
ceased to coordinate the program due to
ates and supports
the decision of functional rearrangements
justice sector institu-
that led to the fragmented implementation tions in the course
of the sub-programs [since 2010/11]. of their plans and
The regression in justice system reform achievements [in
program continued further because it was their respective sub-
ultimately subsumed under general themes programs]. While
such as good governance after the task of most of the project
coordination was transferred to the Ministry activities were
of Public Service and Human Resources being conducted
as ordinary func-
Development.23 Part Four of the study deals
tions, some projects
with analysis and findings that relate to the
are not performed
three sub-programs under Ethiopia‘s justice due to shortages in
sector reform (i.e. sub-programs for judicial finance and man-
reform, law enforcement reform and legal power. “
education). It discusses the goals that were
attained (during the period between 2003
to 2010 Ethiopian Calendar, i.e. 2010/11 to 2017/18) among the planned
activities under 54 projects, the activities that were not performed under
each sub-program, the challenges encountered, the tasks that have

become regular tasks, and good practices.
The fifth part states the findings, conclusions and recommendations
of the study. The gaps stated in the findings include the following:
• there are ―problems and public concerns in service provision
and good governance with regard to the registrar [and]
judicial decisions …”;
• the measure of subsuming justice system reform program
under the Ministry of Public Service was not effective;
• draft laws are not mostly based on research; there is failure
to comply with the procedures of legislative drafting; and the
quality of various legislative drafts is low;
• there are gaps in the quality of charges submitted to courts
and in the levels of skills and diligence with regard to public
prosecution services;
• ―there were violations committed by prison warders and
administrative office holders in the treatment and respect of
the human rights of prisoners;”
• the problems in law schools include admission of students
with low national exam results, shortage of law school
teaching staff, inadequate networking between justice sector
institutions and legal education, absence of pedagogy training
to newly recruited law teachers, and shortage of teaching
materials;
• there is the problem of ―opening of law schools in large
numbers without due attention to standards thereby resulting
in a steady decline in the quality of legal education.
The study notes the gaps in the institutional framework towards
coordination and harmonization of justice sector reform that have
adversely affected the achievements in the sector:
The study further states recommendations for the various entities that
are in charge of the sub-programs on judicial reform, law enforcement,
and legal education. The recommendations of the JLRTI Study with
regard to the judicial reform sub-program include the following:
a) due attention to the level of satisfaction of judicial service
recipients, stakeholders and lawyers and to public trust, in
addition to the focus courts have hitherto given to internal
operations and institutional arrangements;
b) identify barriers that impede the enhancement of public

satisfaction and trust;
c) ensure that statements of claims/charges, statements of
defence, memoranda of appeal, etc., fulfil the requirements
under the laws of procedure (both in content and form);
d) the independence of courts accompanied by neutrality and
accountability;
e) ensuring the independence and neutrality of courts including
their empowerment to prepare their annual budget and to
submit it to the House of Peoples Representatives;
f) executing a system (beyond the exchange of reports) that
facilitates in-depth follow up, analysis and evaluation of
implementation in the judicial reform sub-program;
g) staff engagement and motivation by going beyond the minor
improvements in operations, service provision and human
resource development that have accrued from previous
instruments;
h) enhancing the consistency and predictability of sentences in
criminal cases;
i) provision of residential facilities to judges, implementation of
the draft salary scale for judges, and facilitating their academic
development;
j) pursuance of the projects of reform that are underway;
k) strengthening the activities that were part of the judicial
reform sub-program and that have now been classified as
ordinary activities; and
l) initiating new projects that bring about judicial reform
through tools that facilitate concrete and visible performance
towards achieving the projects of judicial reform
The recommendations in the JLRTI study with regard to the law
enforcement sub-program include:
• human resource development, awareness enhancement and
motivation schemes;
• the need for urgent reform in management and staffing
at training centres (including the police and prison
administration);
• adequate budget to enhance the number and skills of
researchers in the justice sector;
• support to and follow up of the law revision activities that are

underway;
• schemes of support to encourage Alternative Dispute
Resolution;
• the need for alternative punishment to avoid overcrowding of
prisons which weakens the efforts of reform and rehabilitation
in prisons; and
• strategies and directives that can facilitate the effective
implementation of Ethiopia‘s Crime Prevention Policy.
The JLRTI study condemns human rights violations against
detained suspects due to improper investigation. It states the need
for the enhancement of technology, proper training in investigation,
forensic labs and services, forensic pathology and forensic psychiatry,
and enhanced public awareness about crimes. It also underlines the need
for ―prohibitive and deterrent measures against persons who conduct
improper investigation against suspects who are under custody” and
demands the ―provision of clean lodging, adequate healthcare and
adequate food to suspects under custody as much as possible”. To this
end, the study calls for harmonized pursuits among all justice sector
institutions.
With regard to the legal education reform sub-program, the study,
inter alia, calls for ―staff development in post graduate and PhD
programmes, pedagogy training, formulation of a system that implements
admission exam to legal education in addition to the exit exam that is
underway, and sustained review and updating of curriculum.” Moreover,
it underlines the need for ―incentives to academics toward preparing
and publishing law textbooks and incentive schemes to legal research
and its implementation”. Various cross-cutting recommendations in the
JLRTI study are stated under the law enforcement sub-program. The
need to give due focus to the availability of required facilities are stated
among the recommendations of the study. Moreover, the study notes
the gaps in the justice sector with regard to harmonization, and calls for
coordinated and harmonized activities because the level of operations
in the justice sector is currently low and not in tandem with the needs
of the public, thereby necessitating enhanced and harmonized modes of
operations.
The recommendations in the study further state the need for
mechanisms that ensure legal aid through the enhanced participation
of practicing lawyers and law schools, and for the representation of
the indigent who should receive pro bono services in their claims of
compensation as victims of serious crimes and human rights violations.
With regard to professional associations, the study indicates the need
for strengthening associations in the legal profession, and it states their
prospective role in the efforts toward solving the problems in the justice
sector. To this end, the study, inter alia, calls for due attention to a legal
framework and a coherent institutional arrangement.
JLRTI’s Mandates to Coordinate Justice Sector Reform –visà-

vis- Gaps in Institutional Continuity
As indicated in the preceding paragraph, there is the need for ―
substantial enhancement in the capacity of JLRTI in expertise, resources
and facilities commensurate with its functions of supporting justice
sector institutions”. Even though the Federal Attorney General and
JLRTI have overlapping functions in legislative drafting and law
revision, the remaining components of justice system reform clearly
fall under the responsibilities of the entities that are in charge of the
respective sub-programs, thereby requiring follow-up, harmonization
and coordination. The Federal Supreme Court, the Federal Attorney
General (which can coordinate the reform sub-programs of prosecution
services and prisons), Justice and Legal System Research and Training
Institute, and the Consortium of Ethiopian Law Schools are the entities
in charge of the sub-programs in the justice system reform. At the level of
coordination and harmonization, there should also be the representation
of the legal profession through the Ethiopian Lawyers Association, which
according to the 2005 Baseline Study Report, is expected to be recognized
by law and be entrusted with tasks that include licensing attorneys and
handling cases of discipline with due participation of other stakeholders
including the Federal Attorney General. Legal information is a cross-
cutting component in Ethiopia‘s justice system reform program, and
Article 4(2) of Proclamation No. 1071/2018 requires the Justice and Legal
Research and Training Institute to make ―available comprehensive
information about the justice systems of the country” and ―be a center of
justice and legal information”. In spite of this mandate, however, JLRTI
does not even have an official website that has basic legal information.
This clearly indicates budgetary, human resource and ICT constraints. In
2016, JLSRI (currently restructured as JLRTI) was not willing to receive
and administer fund from the African Law Library Project (under the
African Innovation Foundation fund) towards the preparation and
publication of EtLex Volume 2. As a result, the series titled EtLex could
not be sustained. The volume was a sequel in the series of publications

to enhance Ethiopian legal information by indexing proclamations and
translating Federal Supreme Court Cassation decisions. The first volume
of the project EtLex Volume 3 was successful (in 2013), and the level
of attention to the second phase of the project substantially declined in
2016. This shows that the challenges in continuity further involve gaps
in the sustained pursuance of projects and tasks. According to Article
5(4) of Proclamation No. 1071/2018, JLRTI has the responsibility of ―
coordinating, integrating and ensuring the effectiveness of the justice
system and legal education reform programmes as well as other reform
program carried out in the justice sector.” Even though the Advisory
Council (that is envisaged to be established under JLRTI Proclamation
No. 1071/2018) is not expressly mandated to coordinate the reform tasks
of justice sector institutions, Article 12(1) of the Proclamation clearly
empowers the Advisory Council to serve as a forum where ―federal
justice organs shall work in collaboration in order to coordinate and
facilitate the Institute‘s activities”. There is yet another restructuring
based on Article 33(8)(d) of the Powers and Duties of the Executive Organs
Proclamation No. 1097/2018 which has made JLRTI accountable to the
Federal Attorney General‘s Office, by changing JLRTI‘s accountability
to the Prime Minister‘s Office under Proc. No. 1071/2018. Under both
proclamations, the Federal Justice Organs Professionals Training Center
(JOPTC) which has merged with JLSRI (to form JLRTI) comes under
the executive even though it, inter alia, offers judicial training. This
inevitably necessitates undoing what was done, i.e., splitting JLRTI into
JLSRI (Justice and Legal System Research Institute) and reinstituting
JOPTC as a Judicial Training Center under the Federal Supreme Court.
There have been series of interruptions in institutional memory that
have caused discontinuity in JLSRI‘s and JOPTC‘s tasks and services.
Equally important is JLRTI (formerly JLSRI)‘s location so that it can be
convenient to attract and retain professional staff and be easily accessible
to all stakeholders in justice system reform including the legal profession
at large. Unfortunately, however, this crucial factor of location has not
been given due attention since JLRTI (formerly JLSRI) was forced to leave
the compound of the Ministry of Finance and Economic Development
(in 2010/11) while in fact – at the current information age– the Ministry
could have regarded the premises in its compound adequate for its
functions. The new premises constructed past Ayat (at the outskirts of
Addis Ababa), to be used by JLRTI, can only serve as a training center
and not as premises to a legal research institute whose offices, facilities
and library should be accessible (at a convenient location) to the justice

sector, law schools, researchers and the legal profession at large.
Caveats against Disrupting Institutional Continuity by

Scrapping Entire Codes of Law in the Name of ‘Revision
While law reforms in areas such as Ethiopia‘s anti-terror legislation,
the proclamation on civil societies, etc., are expedient, there is the need
for caution against trends in law revision that aim at scrapping the
codes of law enacted in the 1960s. This author has expressed the views
indicated in the following paragraphs to colleagues at the Justice and
Legal Research and Training Institute and the Federal Attorney General
regarding the need for caution in the course of revising the Civil Code
and the Commercial Code. The view which considers the Civil Code
as outdated (merely because it was enacted fifty-eight years ago) is
not persuasive even though there are indeed Civil Code provisions
that need reform. Yet, the ‗age‘ of the Codes is repeatedly stated at the
opening statements of various (Codes of Law Revision) workshops.
Of course, there are parts of the Civil Code that have already been
replaced, such as land law, intellectual property law and family law.
But in various parts of the Code, including the issue of family name
in law of persons, we have not yet attained some of the objectives that
were envisaged. Unfortunately, we tend to radically negate the past
(analogous to throwing away a child with the bathwater), and build up
afresh (which is unwise). For example, the codes of law in France are
over two hundred years old, and new changes stand over the shoulders
of the preceding laws.
In our case, we rush to change rather than merely amend the ones
that are obsolete. As a French proverb goes, ―plus ça change, plus c’est
la même chose” (―the more things change [fast], the more would they
remain the same”). In some of the revisions, unnecessary confusion
is created, because the Criminal Code, for example, could have been
revised without substantial change in the number designations of the
provisions. With careful drafting, most provisions could have retained
their numbers as it is duly done in Articles 1-33, 46-47, 48- 53, and 56-59 of
the 2004 Criminal Code. The inclusion of Article 34 on corporate criminal
liability, for example, was indeed appropriate. The title of Article 32
could have been amended as ―Principal Criminal Liability and Special
Crimes” to accommodate Article 33 of the 1957 Penal Code as Article
32(4) of the 2004 Criminal Code. This could have enabled corporate
criminal liability to be designated as Article 33 without disturbing
Articles 34 to 45. This could have been done throughout the Code
thereby retaining the judicial jurisprudence and academic literature that
was accumulated from 1957 to 2004. The same applies for provisions
that may be omitted during revisions of other codes of law because a
preceding or an immediately following provision can be split into two
in order to maintain sequence in subsequent provisions. In the case
of substantial omissions, amendments can state the numbers omitted
and then proceed with the old sequence. Where there is a substantial
insertion of new provisions, alphabetical designations can be attached
to numbers, as is the case of amendments to the 1804 French Civil Code
that has periodically updated consolidated versions. Likewise, the Swiss
Civil Code of 1907 updates the Code with new changes rather than
scrapping it en toto. This facilitates the transmission of judicial decisions
and academic literature to generations, because in continental legal
systems, court decisions and academic literature cite provisions and not
cases thereby rendering easier reference to the number designations of
provisions very important. In this regard, we can draw lessons from
the drafter of the 1957 Penal Code, Professor Jean Graven, his team and
the legislature for having used 120A after Article 120. The drafter did
not originally include flogging as punishment, but the issue of lashes
to a maximum of ‘arba jiraf’ (forty lashes) was persistently raised as
traditionally important by certain members in the legislative process,
and the drafter had no option, other than including it. However, the
drafter was aware that flogging will be obsolete after certain years owing
to Ethiopia’s steady interactions with the international community and
in the course of legal development in Ethiopia. It was not thus given a
number on its own (i.e. Article 121), but was included as Article 120A. As
proactively envisaged by the drafter, the provision was obsolete (after a
few years) in courts of law. The Civil Code can thus be amended without
scrapping it aside. The same holds true for the Commercial Code because
most of the numerical designations of the earlier Commercial Code can
be maintained with careful draftsmanship. This can be done by blending
immediately preceding (or subsequent) provisions to accommodate
newly inserted provisions. Changing the entire numerical designations
of the Commercial Code including various landmark provisions would
mean throwing away our legacy that is accumulated since the 1960s in
textbooks, scholarly articles, judicial decisions, etc., which cite specific
provisions. One of the problems in Ethiopia relate to our inability to
stand over the shoulders of earlier achievements (while we could have
focused on what needs to be corrected and developed). To borrow a
phrase from Dr. Mehret Debebe‘s statement (during a radio interview), it
is always wise to consider the ―ceiling of an earlier achievement” as the

―floor for new pursuits.” Where consistency in numerical designation
becomes impossible (while revising some parts of codes of law), the usual
practice is to let the specific branches of the law emerge and stand on
their own feet. With regard to the Commercial Code, there is apparently
the need for responding to the steadily unfolding realities which require
changes in the formation and operation of companies. However, this
can, for example, be accommodated by a new law that can be designated
as Ethiopian Law on Commercial Companies, analogous to the laws on
insurance, banking etc, that have already stood on their own feet even
if certain provisions of the Commercial Code are still relevant to the
sectors. Under this option, the (1960-2018) judicial jurisprudence and
literature related to the 1960 Commercial Code can stay undisturbed
(because there would not be namesake/ሞክሼ confusion).
The Nexus between Good Governance and Justice Sector

Reform
Worldwide good governance indicators46 include six dimensions
of governance:
Worldwide good governance indicators46 include six dimensions
of governance: ―
• Voice and Accountability (VA): …the extent to which a
country’s citizens are able to participate in selecting their
government, as well as freedom of expression, freedom of
association, and a free media.
• Political Stability and Absence of Violence/Terrorism (PV):
… the likelihood that the government will be destabilized or
overthrown by unconstitutional or violent means, including
politically motivated violence and terrorism.
• Government Effectiveness (GE): … the quality of public
services, the quality of the civil service and the degree of its
independence from political pressures, the quality of policy
formulation and implementation, and the credibility of the
government’s commitment to such policies.
• Regulatory Quality (RQ): … the ability of the government to
formulate and implement sound policies and regulations that
permit and promote private sector development.
• Rule of Law (RL): …the extent to which agents have confidence
in and abide by the rules of society, and in particular the
quality of contract enforcement, property rights, the police,

and the courts, as well as the likelihood of crime and violence.
• Control of Corruption (CC): … the extent to which public
power is exercised for private gain, including both petty and
grand forms of corruption, as well as “capture” of the state by
elites and private interests”.
These six dimensions are enablers for Ethiopia‘s justice system
reform. The first dimension (Voice and Accountability) is a sine qua non
condition for a competent legislative body and independent judiciary.
The legitimacy of governments under theocracy, monarchy, communism,
etc. is attributed to factors other than the ballot box. On the contrary,
governments that claim to pursue constitutional democracy attribute
their legitimacy to elections. Whenever governments use the ballot-
box as a façade, they intervene in the operations of public prosecution
services, the judiciary, electoral boards/ commissions, the media etc., to
suppress opposition political parties; and they operate in the context of
a rubber-stamp parliaments and non-independent judiciary. The second
dimension (Political Stability and Absence of Violence/ Terrorism) can
be related with the population‘s perception of government legitimacy. It
can also be related with various social and economic grievances. Societies
that are polarized due to religious, ethnic and clan hostilities are mostly
volatile. Elites usually hijack and exacerbate such hostilities towards
economic and political ‗gains‘, although they usually end up in ‗lose-
lose‘ scenarios. Laws envisage compliance, and violations are regarded
as exceptions. However, order and stability are disrupted where mobs
(in the crude form of ochlocracy) take the law into their hands. This
not only reflects lawlessness, but it is also a symptom of erosion in the
fabric that holds neighborhoods, communities and a society together.
Achievements in Ethiopia‘s justice system reform thus, inter alia, depend
on the extent to which the root causes for such acts are addressed. The
core foundation of terrorism is one of the basic emotions in human
beings, i.e., ‗anger-fear‘. In their positive dimension, ‘anger’ secures
justice (as in the case of an infant whose toy is unduly taken by another
child, civil disobedience, legitimate strikes, etc,); and ‘fear’ facilitates
survival (as in the case of subconsciously-enhanced pace in running
from an aggressive wild animal). These basic emotions of ‗anger‘ and
‗fear‘ can be distorted in the course of ideological, ethnic or religious
fanaticism, or as over-reaction in the course of counter-terrorism. The
third dimension of good governance (Government Effectiveness),
inter alia, relates to the quality of public services (including justice
sector institutions) and the degree of ―independence from political

pressures”. The scene of widespread street vending at various parts
of Addis Ababa clearly verifies the gaps in the effectiveness of law
enforcement and its inability to protect tax payers from the wave of
contraband merchandise. One can, for example, recall the effectiveness
of community guards in Merkato (for many years) while they were
under a business development association. A letter from the Chief
Executive Officer of the Sub-city, repealed the earlier practice, and the
community guards operate under a Police Station since November 2016.
Merkato is engulfed in street vending during the last two years. While
the former option was effective governance with the participation of
stakeholders, the latter represents regulation under a government organ
without stakeholder engagement. Gaps in government effectiveness
are reflected in various public services. For example, streets (through
tacit or explicit ultra vires consent of municipal offices) are illegally
enclosed by individuals as in the case of a building construction work
that has (for about three years) blocked a street between the building
where Flamingo Café (Bole Road) is located and Tomy Tower. The
fourth dimension of good governance (Regulatory Quality) is, inter
alia, manifested by the extent to which policies and laws ―permit and
promote private sector development” thereby enhancing livelihoods
which include economic efficiency and social well being in the context
of environmental sustainability. There are concerns such as the need for
land tenure security which require revisiting Ethiopia‘s rural and urban
land laws because Ethiopia‘s land laws do not empower broad-based
private sector development. As indicated in various studies (such as the
ones highlighted in Section 9 below), there is the need for legal regime
reforms toward private sector empowerment in the context of inclusive
economic development whereby landholders and entrepreneurs can
team up in win-win economic activities. Absence of stock market in
Ethiopia is another issue that needs regulatory attention to enhance
broad-based saving and investment.
Regulatory quality further envisages harmonization and
professionalism in legal drafting and promulgation. For example,
various institutions haphazardly incorporate ‗penal‘ provisions thereby
creating fragmentation and confusion in the criminal law regime. This
is inconsistent with Article 3 of the 2004 Criminal Code which allows
other penal legislation (outside the Criminal Code) as an exception only
when it is enacted as a regulation to enforce the Criminal Code, or if
it is enacted as a special law of a criminal nature. There is extensive
discourse and literature on the challenges in the fifth and sixth

dimensions of good governance, i.e., gaps in ‗rule of law‘ and ‗control
of corruption‘ in the context of Ethiopia. The apparent gaps in the fifth
dimension include problems in contract enforcement and property rights
protection. Moreover, the impediment in the sixth dimension, i.e., level
of corruption deserves utmost attention. These challenges call for due
attention to the root causes, while at the same time steadily combating
their manifestations and effects.
The Tension between Ethnic Hostilities and Good

Governance
The first dimension of good governance, i.e., voice and accountability
embodies two elements. As highlighted in the preceding section, the first
element (voice) refers to ‗the participation of citizens in selecting the
government‘, while the second element refers to the extent to which the
government is accountable, which includes freedom of speech, freedom
of association and the media. Both elements are indispensable in good
governance. Good governance is an enabler in all pillars of justice sector
reform. Ethnic hostilities impede the attainment of both limbs in the first
dimension of good governance. Under settings where ethnic hostilities
and extremist perceptions of ethnic distinctiveness are entrenched,
a minority ethnic group that coercively holds power inclines toward
vote rigging, manipulating elections and intervention in electoral
boards/commissions because most voters tend to cast their votes to
candidates who belong to their ethnic group. A minority ethnic group
that is coercively in power cannot thus retain office through free and
fair elections under ethnic polarities thereby rendering transgressions
against rule of law and judicial independence its modus operandi.
Such ruling parties invest much energy, time and finance to manipulate
constituencies before elections, and devote equal attention to post-
election justifications and show trials after the elections (which in the
Ethiopian context included ‗anti-terrorism‘ charges and convictions).
Under this setting, governments are mostly trapped in a ‗legitimacy‘
syndrome, and only a small percentage of their ‗term‘ (between
‗elections‘) is devoted to governmental functions. Such ‗legitimacy‘
syndrome is also susceptible to fraudulent reporting of ‗achievements‘
(in development pursuits) as a result of fixations on unduly exaggerated
figures and statistics rather than pragmatic and functional achievements
commensurate with the requisite pace, quality and standards. On the
contrary, a political party (in ethnically polarized societies) from an ethnic
group (that constitutes the majority of a country‘s population) does not

need to manipulate elections unless there are competing ethno-radical
candidates in similar constituencies (with substantial support-base) from
the same ethnic group. Even though such ethnic-based political parties
may not usually resort to fake elections, they may not enthusiastically
pursue the second limb in the first dimension of good governance, i.e.,
accountability. This is because their political offices are mainly secured
by ethnicity rather than policy roadmap, competence, integrity and
commitment. Such candidates may lack sense of accountability to
citizens in their constituencies. Ethnic groups in Ethiopia constitute the
majority in most of the regional states in Ethiopia other than Southern
Nations, Nationalities and Peoples Regional State (SNNPRS) and the
two chartered cities, i.e. Addis Ababa and Dire Dawa. Ethnic politics
can thus erode accountability and enhance ethnocentric populism in the
regional states. Such contest in populism between ethnic-based political
groups in their constituencies is susceptible to an adverse race in ethnic
radicalism to win the impressions and sentiments of the electorate in lieu
of rational ideas. Such extreme political polarities accompanied by the
proliferation of political parties can significantly hamper post-election
policymaking and legislative productivity. Opportunities in this regard
relate to the coalitions and political platforms which can eventually lead
to their merger onto multiethnic political parties. For example, EPRDF
(Ethiopian Peoples Revolutionary Democratic Front) is, at some point,
expected to omit the qualifier ‗revolutionary‘ when it fully disentangles
itself from its Leninist ideological heritages (of the ‗New Democratic
Revolution‘) even if it can still remain within the social democratic
fold. At such a stage, the word ‗Front‘ is expected to be revisited and
substituted by a word which fits to its current and upcoming policy
roadmaps. Ethiopia‘s experience indicates that the second dimension of
good governance (i.e. political stability and absence of violence) cannot
be attained in the context of ethnic hostilities. Plutchik‘s views on pairs
of emotions (such as joy-sadness, anger-fear, trust-disgust, surprise-
anticipation) provide insights into the basic emotions of individuals
that can be manipulated by radical ethnonationalists. A provocation
by a certain group evokes anger and chain of negative emotions which
trigger further reactions based on revenge, distrust and fear thereby
rendering peace, governance through law and rule of law difficult.
Fraternity based on shared citizenship and trust is susceptible to erosion
under ethnic hostilities, and on the contrary, distrust entrenches fear
and anger thereby making it difficult for the justice system to ensure
order and political stability. The current digital age and social media
exacerbate these challenges owing to the ease, magnitude and pace

of dissemination including manipulative misinformation. Actual and
anticipated ethnic-based or religion-based hostilities adversely affect
political stability, social harmony and economic performance thereby
rendering it difficult for the justice system to ensure law and order.
Politics per se is based on rational discourse and shared citizenship,
while ethnic ‗politics‘ primarily targets at emotion and claims of
common descent, language and distinctiveness. Ethnic-based politics
thus renders it difficult to attain the first two dimensions of good
governance. This cascades to the other dimensions, because gaps and
challenges in the first and second dimensions of good governance have
direct relationship with the remaining four dimensions, i.e. government
effectiveness, regulatory quality, rule of law and effective control against
corruption that are adversely affected by ethnic-based politics.
Law Compliant Citizenship and Justice Sector Effectiveness

The need to restore public trust
Public service constitutes the raison d’être of justice sector
institutions, and public trust in the justice system is determined by the
level and quality of actual performance. Restoration of public trust, after
its substantial decline, can be compared with land reclamation through
the rehabilitation of degraded agricultural land due to grave problems
such as gully erosion. As Lal noted, ―[a]n eroded rill, on deepening and
widening, becomes a gully. A gully is sufficiently deep that it would not be
obliterated by normal tillage operations, whereas a rill is of lesser depth
and would be smoothed by ordinary tillage”. As gully erosion cannot
be restored by ordinary tillage, the gravity of the problems in Ethiopia‘s
justice system requires a thorough self-assessment of the sub-sectors. It
also needs survey-based assessment on the gravity of the problems with
due participation of stakeholders so that the magnitude of the problems
can be identified based on Truth and Reason. This is because laws and
the institutions in charge of lawmaking, adjudication, enforcement, legal
education and access to justice that are not informed by Truth (in terms
of objective and subjective realities) and Reason cannot be effective. In
the gully analogy, the act of restoring a gully cannot be adequate unless
its root causes are addressed. Such measures include the need to deal
with the problem such as concentrated runoff of floods that caused the
gully. Likewise, there should be deeper examination into the root causes
that have adversely affected the operations and services of justice sector
institutions. Such deeper diagnosis and effective pursuits call for the
blend between autonomy and harmonization in the reform pursuits of

each sub-sector.
The need to enhance law compliant citizenship

In the absence of law compliant citizenship, the justice sector
becomes susceptible to caseloads in investigation, prosecution and
adjudication that impede efficiency and effectiveness. Various factors
such as widespread public perception of illegitimacy of a government in
office, dwarfed moral authority of corrupt office holders, and wrong
policies erode law compliant citizenship. This, in the Ethiopian context,
is exacerbated by ethnic-based perceptions of ―we” and the ―others”
that have been nurtured by the political leadership during the past
decades. We can, for example, recall Aristotle‘s view that good thoughts
lead to good actions, and can through repetition become good habits
and good character. On the contrary, thoughts that emanate from
misrepresentation, ideological ‗indoctrination‘ and hatred-infested
politicking (including social media hate scripts) are distorted and
usually antagonistic. It is thus Truth and Reason that can create shared
beliefs and positive thoughts that are in tune with the reality, general
will and the rule of law. Manipulation of emotions through
misrepresentation is a breeding ground for irrational hostilities and
lawlessness, while reason nurtures inquiry, moral standards, work ethic,
quality education and law compliant citizenship. Wider scope of
freedom in a legal regime presumes higher levels of awareness and
moral responsibility from citizens. On the contrary, substantial reform
in a legal regime can unmask the level of hostilities, intolerance and
gaps in political culture that were concealed under suppressive regimes.
Under settings where legal regimes with wider levels of freedom are
accompanied by the requisite level of law compliant citizenship,
professional associations nurture and control occupational conduct, and
the society‘s value systems are among the core sources of individual
moral standards. The ethnic hostilities that are occurring in Ethiopia
illustrate gaps in law compliant citizenship. It is in spite of Ethiopia‘s
criminal law regime that the Jigjiga tragedy, for example, occurred on
August 4, 2018. It was unimaginable that the heavy loss in life and
property including arson against churches would occur in a country
which is known for the level of tolerance and cooperation among
religions. As Basu observes: The might of the law, even though it may be
backed up by handcuffs, jails, and guns, is, in its elemental form, nothing
but a structure of beliefs carried in the heads of all the people in society—
from the ordinary citizenry to the police, politicians and judges—,
intertwining and reinforcing one another, till they become as strong as

concrete structures … . The most important ingredients of a republic,
including its power and might, reside in nothing more than the beliefs
and expectations of ordinary people going about their quotidian chores.
Any meaningful reform in lawmaking and revision should thus pay
attention to the beliefs and expectations that have brought about the
actions of citizens such as the Jigjiga hostilities, Gedeo and West Guji
zone conflicts and ethnic displacements. In September 2018, these
hostilities and displacements continued, in various parts of Ethiopia
such as Burayu, Benishangul Gumuz Regional State (Kamashi Zone),
and others. Even though Ethiopia is not yet a fragile state (a phase that
signals the prelude to failed statehood), ethnic hostilities and the
perceptions that trigger them need to be carefully examined in the
course of justice system reform. The magnitude of the problems in this
regard can be easily verified by the fact that Ethiopia has become a
country with the largest displaced population in the world due to ethnic
clashes. It is becoming common to equate the word ‗hizb‘ with ethnic
homogeneity (in a regional state) as a semantic referent. This approach
entrenches the dichotomy of ―we” and ―the rest other than us” in the
minds of linguistic groups. Such perception erodes sense of citizenship
and can be easily hijacked by ethnic entrepreneurs who speculate toward
economic gains and political power. If we opt to use the word ‗hizb‘ at
sub-national level, it should have retained its inherent heterogeneity, as
in the case of usages such as ‗የቀበላው ሕዝብ/ people in the Kebele‘ which
refers to every resident irrespective of ethnicity and religion. Any
different usage is expected to have a qualifier to show specific reference.
Professor Bahru Zewde had (at a workshop) suggested that we use the
phrase ‗የኢትዮጵያ ሕዝብ/ Ethiopian people‘ rather than ―የኢትዮጵያ ሕዝቦች/
Ethiopian peoples.” It is thus high time that views of historians,
sociologists and other experts on their respective fields be seriously
considered in the context of critical thinking and informed discourse.
The following observation by Kymlicka shows the need for caution in
the use of the word ‗peoples‘ rather than ‗people” in the context of a
country‘s population: ... Multinational federalism divides the people
into separate ‗peoples‘, each with its own historic rights, territories, and
powers of self-government; and each, therefore with its own political
community. They may view their own political community as primary,
and the value and authority of the larger federation as derivative.
Kymlicka further states that in order to reduce this danger of deep
division, ―federal governments have encouraged national minorities to
identify with, and feel loyalty towards, the federal government”, and he
notes that ―the historical record suggests that these efforts have limited
success”. Attainments in this regard thus need due attention to the root
factors transcend official statements and pledges. There have been
challenges in maintaining the proper balance between ethnic identity
and sense of membership in the bigger Ethiopian political community.
In this regard, there were earlier symptoms of ethnic tensions that could
have served as wake-up calls. Physical assaults in university campuses
and soccer games that reflect ethnic tension could have been regarded as
symptoms in diagnosing the problems. On the contrary, there are
Ethiopian universities that are becoming hubs for ethnic-based student
groupings and tensions, while they should have been forums for rational
discourse, critical thinking and cosmopolitanism. Ethnic hostilities
indeed affect nation-building. As René Grotenhuis notes, the ―process
of nation-building boils down to ‗forging a sense of common nationhood‘,
56 and he raises the following issues: How can we make sure that Luos
and Kikuyus identify themselves as Kenyans and that the Kenyan
nationhood is an important aspect of their identity? The same challenge
goes for people of different ethnic and tribal affiliations ... . ... [I]n many
fragile contexts, the state is absent or, worse, a perpetrator of acts of
violence. In such a reality, people look towards their family, tribe, clan or
religious community to find protection and to access basic needs like
food, shelter and medical care. Grotenhuis uses a model formulated by
Shulman in his discussion on the components of national identity.
According Shulman, there are three layers of collective identity, i.e.,
ethnic, cultural and civic. The first layer (i.e. ethnic identity) is based on
ancestry and race, while the second layer (cultural identity) is based on
[factors such as] language and tradition. Civic identity that is shared by
all citizens is the third layer which is based on citizenship, territory, will
and consent, political ideology, political institutions and laws. Shulman‘s
three main elements (civic identity, cultural identity, ethnicity) and their
underlying components are the building blocks of a national identity,
but their relative importance of weight is not defined in advance. It is an
open model that leaves space for a contextual and diverse understanding
of national identity. ... What is at stake is not the objective truth about the
different elements and components and their relative importance, but
the extent to which people actually use these labels to define their
national identity. ... If we want to build a national identity, this will have
to be a bottom-up process. Various Ethiopian laws including the FDRE
Constitution use nations, nationalities and peoples without clarity in
definition and context. There should have been caution in using the
word ‗nation‘ for pre-industrial ethno-cultural groups of people, unless
it is used in a country-wide context of nation-state or nation-building.

Such conceptual clarity could have facilitated harmony among the
triadic elements of a person‘s collective identity (i.e., ethnic, cultural and
national identity, with the latter representing Ethiopian identity).
Peace, Order and Stability in the Context of Diversity

As peace (order) and freedom are two sides of the same coin, rule of
law is unimaginable in the context of disorder and lawlessness. The latter
not only affects the lives and property of citizens, but also exacerbates
mass encroachments to forests, fragile landscape and wildlife. Polarities
–which can ultimately bring about fragility and failed statehood– need
not necessarily be among different linguistic and religious groups. It
is to be noted that shared language and religion did not save Libya or
Yemen from such tragedies. Upon the disruption of the social fabric of a
society –including value systems of pluralism, tolerance and fraternity–
the effectiveness of laws and justice system institutions decline. In effect,
individuals, gangs and mobs merely pursue their whims that trigger
attacks, counter-attacks and hostilities. It is under such settings that
virtues in the inner-self of many citizens dwindle. Subsequent realities
can then bring about a chaotic setting that was explained by Thomas
Hobbes (1588-1679) based on his observations during prolonged civil
wars in Britain. Such chaos and anarchy can only lead to tyranny under
a ‗supreme sovereign‘ in the quest for order rather than rule of law.
The way forward does not lie in the Ethiopian unitary state, which
unlike countries such as France, has not become successful in Ethiopia
during the pre1991 regimes. Nor can ethnic radicalism bring about the
balance between unity and diversity. There is thus the need to address
the causes of the disequilibrium in the unity and diversity nexus while
at the same time dealing with the symptoms in the course of justice
system reform (including legislative reform). Mere enactment of laws
that deal with individual freedom in a multinational state ―overlooks
the fact that people identify with their particular community on the
basis of their special or distinctive features…”.69 Respect for diversity
thus becomes inevitable in multiethnic societies. However, the notion of
diversity can be misconstrued by ethno-radicalism which ―includes all
political endeavour that bases the distinction between friend and foe on
ethnic characteristics and pursues its aims accordingly, even by violent
means”.70 This causes ethnic conflict in multinational states as long as
the foundations are ripe. As Feiner observes: If one wishes to search for
new state concepts that could prevent ethnic conflicts or at least manage
them peacefully, one needs to know the real causes of such conflicts.
However, the views and theories as to the causes are as diverse as the
conflicts themselves. Possible causes include:
• economy (social injustice),
• history (retaliation for historical injustice, denial of self-
determination, historical discrimination),
• ethnic communities living in foreign neighbouring territory,
religious fundamentalism,
• power-hungry warlords,
• fear and mistrust as consequence of terrorism of minorities
and terrorism of the state.
These objective realities constitute foundations for ethnic conflict
that can erupt when the subjective conditions are ripe. As Feiner notes,
the factors indicated above are ―in some way related to the issue of
ethnic identity and the attendant self-awareness”, and he states that
―the ethnic dispute is marked by a friend-foe mentality, which can
be manipulated and radicalised by various private interests. Ethnic
differences can be emotionalized in order to pursue economic, political,
cultural or mere power interests, or to divert attention from other
internal problems”.
While democracies are based upon the majority principle,
addressing ethnic tensions calls for legal regimes that at the same time
ensure equal treatment ―as an individual as well as a member of an
ethnic community or collective” in the absence of which the majority
rule can ―degenerate into a tyranny over minorities”
4.5 CONSTITUTIONAL DEVELOPMENT IN

ETHIOPIA
Ethiopia is the oldest independent country in Africa and one of the
oldest independent countries in the world. During the late nineteenth
and twentieth centuries, Emperor Menelik II created the current
Ethiopian state through expansion and conquest. This process created a
state with over eighty ethnic groups who speak over seventy languages.
Menelik consolidated his reign and maintained his empire through force.
During his reign, Menelik signed a treaty with Italy in 1890, proclaiming
Eritrea an Italian colony. Upon his death in 1913, Haile Selassie became
emperor after a brief period of struggle. Selassie established a modern
administrative state, but did not completely abolish the feudal system
as his reign largely depended on the system. In 1936, the Italians ousted
Emperor Selassie from power. Five years later, British and Ethiopian
forces defeated the Italians, and Emperor Selassie returned to his throne.
With the exception of the five years under Italian control (1936-1941),
Ethiopia remains one of the few African countries not colonized by a
European power.
In 1952, the United Nations created a federation between Ethiopia
and Eritrea under two different governments. In 1962, Ethiopia annexed
Eritrea, sparking an independence struggle which lasted for 30 years.
Emperor Selassie ruled Ethiopia until 1974 when civil unrest broke
out. The Derg, led by Lt. Col. Mengistu, staged a Marxist coup, which
overthrew Emperor Selassie and installed a socialist military government.
Mengistu, financed by the Soviet Union, implemented a totalitarian-
style government and a massive militarization of the country. From
1977-1979, the Derg tortured or killed thousands of suspected enemies
in what was known as the “Red Terror”. Having effectively silenced
all opposition, the Derg officially adopted a communist constitution in
1987.
Due to the Derg’s oppressive regime, rebel groups led by the
Tigrayan Peoples’ Liberation Front (TPLF) and the Ethiopian Peoples’
Revolutionary Democratic Front (EPRDF) merged to overthrow
Mengistu in 1991. A series of famines and insurrections in the Tigray
region and Eritrea also contributed to the Derg’s collapse. Eritrea
declared its independence from Ethiopia one week after the defeat of
the Derg.
The EPRDF and the Oromo Liberation Front (OLF) formed the
Transitional Government of Ethiopia (TGE) in 1991. Following the 1992
elections, the TGE created a Constitutional Commission to draft a new
charter. On December 8, 1994, the 547-member constituent assembly
adopted the current constitution, establishing the Federal Democratic
Republic of Ethiopia.
Modern constitutional history
Ethiopia’s 1994 constitution is a direct result of the government
pursuing a policy of “ethnic democracy.” Ethnicity serves as the
foundation for Ethiopia’s political parties and is what motivates the
Constitution’s two-tiered federal system. In addition to the central
government, there are nine regional states whose borders roughly trace
ethnic lines. The constitutional structure cemented ethnicity as the

definitive issue in Ethiopian politics.
The first elections under the 1994 constitution were held in May
and June of 1995. Most opposition parties to the EPRDF boycotted the
elections because they were excluded from the constitutional process.
During the transitional period, the EPRDF gained power through
intimidation and force. Given the non-participation of many opposition
parties in the 1995 elections, the EPRDF won the majority of the electoral
contests.
In 1998, the Eritrean army invaded Ethiopia, sparking a two-year
war between the states that resulted in over 100,000 deaths. The two
countries signed an Agreement on Cessation of Hostilities on June 18,
2000 and a peace agreement on December 12, 2000. The United Nations
deployed a peacekeeping force to maintain compliance with the
agreements. Despite the peace treaty, tension remains between the two
countries.
Elections were held again in 2000-2001. The EPRDF officially
allowed opposition parties to participate, but because of the national
police’s intimidation, many opposition candidates decided not to run. In
the end, opposition candidates only won of the 547 seats in parliament.
International observers did not deem the elections free or fair.
The 2005 elections were the most free and fair in Ethiopia’s history.
Voter turnout was approximately 80 to 90 percent and multiple parties
were on the ballot. However, because of irregularities and contestation,
the final results were not released until September. According to the
official results, the EPRDF remained in control, winning 67.85 percent
of the vote and 371 seats in parliament. Despite the opposition parties’
significant gains, they still remained dissatisfied because of voting
irregularities. When the EFRDF refused to perform a recount, the
opposition responded with public protests. In the name of maintaining
public order, the ruling party responded in November 2005 by killing
40-50 people and wounding hundreds of others. The government
proceeded to arrest thousands of opposition leaders, journalists, and
human rights advocates. By mid-January 2006, 200 people were released,
but the majority was still held in detention camps. As of March 2008, one
hundred and fifty of the elected opposition leaders had taken their seats
in parliament, but the opposition and majority remained at a stalemate.
During the local elections in April 2008, government intimidation made
it difficult for opposition candidates to run for office.
Recent constitutional building process

The Derg pursued a policy of Ethiopian nationalism, which often
led to human rights abuses against ethnic groups who did not support
the Derg’s centralization of power. The 1994 Constitution reflected both
a backlash against the Derg’s ethnic violence and Ethiopia’s multitude of
ethnic groups. Ethiopia adopted a constitution that creates a two-tiered
federal structure, which, at least in principle, emphasized ethnic groups’
rights and the right to self-determination.
The EPRDF captured the capital, Addis Ababa, on May 28, 1991.
In July, a national conference was held, which included representatives
from over 20 ethnic and regional groups. Two groups were not invited
– the Workers Party of Ethiopia, which disintegrated after the fall of the
Derg, and non-ethnic political parties which had united in exile. Despite
the exclusion of those groups, the diverse representation suggested
that the EPRDF was at first willing to allow broad participation in the
constitutional process. However, the EPRDF remained in charge of the
conference and kept participation and the agenda under its control. The
conference adopted a Transitional Charter pending the adoption of the
Constitution. The Charter established an 87-member council, of which
the EPRDF held 32 seats. Initially, most groups supported the transition
because of the apparent commitment to pluralism.
Led by the EPRDF, the National Conference decided to build a
political system based on ethnicity, which shaped Ethiopian politics and
the constitution-building process. In January 1992, the Council divided
the country into 12 regions, roughly along ethnic lines. This decision
reinforced ethnicity as the guiding force behind Ethiopian politics and
campaign issues.
During late 1991 and early 1992, strife between the EPRDF and OLF
nearly ended the transitional process. Political disagreements within
the Council led to military infighting, which pushed the country to the
brink of civil war. Each party wanted control over certain key areas of
the country in anticipation of the upcoming elections. Peace talks led by
the Provisional Government of Eritrea and the United States ended in
a cease-fire. This peace allowed for the scheduling of elections in June
1992. By this point, the EPRDF, with its military prowess and favorable
governing rules, had control over most of the country.
On June 21, 1992, regional and local elections were held for the TGE.
However, they did not take place in an environment where true political
competition could occur. The OLF and other major political parties
asked for a postponement of the elections, but after the request was
denied, they withdrew from the ballot. Consequently, only the EPRDF
and its allies appeared on the election ballot in many areas. As a result,
the EPRDF won 1,108 of the 1,147 assembly seats.
The transitional government created a Constitutional Drafting
Commission. Public forums were held in Ethiopia and abroad to discuss
the opinions of civic organizations and political parties. However, many
of the EPRDF’s opposition groups felt that they could not participate
fully unless they agreed with the EPRDF. These groups tried to build
coalitions to counter the EPRDF, but without much success. In March
1993, some opposition members held a meeting in Paris, including some
members of the Council formed after the 1992 elections. Because of their
participation in the meeting, the EPRDF expelled these groups from the
TGE.
In December 1993, the opposition tried again to alter the transition
process by holding a meeting in Addis Ababa called the “Peace and
Reconciliation Conference.” The TGE boycotted the meeting and arrested
its leaders who attempted to participate. The opposition appealed to the
United States in the hope that the TGE could participate in the formation
of a new transitional government that would be more inclusive of other
political parties. The opposition met with former President Jimmy
Carter in February 1994, but the strategy failed when the transitional
government declined President Carter’s offer to mediate. Consequently,
support for the TGE’s framework dropped and the opposition became
more marginalized.
On June 5, 1994, elections were held to elect a Constituent Assembly
for the purpose of reforming the constitution. After all the talks failed,
the major opposition parties did not participate in the elections. As a
result, the EPRDF won 484 of the 547 seats in the Constituent Assembly.
Without any major opposition, the Constituent Assembly ratified the
constitution on December 8, 1994.
As noted above, the Ethiopian constitution creates a two-tiered
federal structure. The Executive Branch consists of the President,
Council of State, and the Prime Minister. The Prime Minister maintains
the executive power. The Constitution creates a bicameral parliamentary
system consisting of the House of People’s Representatives and the House
of Federation. Electoral districts elect representatives for the House
of People’s Representatives every five years. The House of Federation
consists of at least one representative from each “Nation, Nationality

and People.” The House of People’s Representatives decides issues
related national infrastructure, nationality, war, and federal statutes.
The House of Federation maintains control of issues related to states’
rights, including “the right to secession.”
There are also nine states within Ethiopia, which are drawn along
ethnic lines. Each state maintains its own legislative, executive, and
judicial branches. The State Council is the highest authority in each
state, and it has the authority to amend the state constitution. Each state
is subdivided into smaller local governments. The Constitution calls
for each State Council to decentralize the administration to the local
authorities.
Timeline
1889 Emperor Menelik accedes to the throne and creates Ethio-

pia within its modern borders with Addis Ababa as the
capital.
1889 Menelik signs a bilateral friendship treaty with Italy, which
Italy interprets as giving it a protectorate over Ethiopia.
Ethiopia then rejects the treaty.
1896 Italy attacks Ethiopia. Ethiopia defeats Italy. Italy recog-
nizes Ethiopia’s independence, but maintains control over
Eritrea.
1930 Emperor Selassie accedes to the throne.
1935 Italy invades Ethiopia.
1941 British and Ethiopia forces defeat the Italians; Emperor
Selassie returns to the throne.
1952 The United Nations federates Eritrea with Ethiopia.
1962 Emperor Selassie annexes Eritrea. Eritrean independence
struggle intensifies over the next thirty years.
1973-1974 Approximately 200,000 people die as a result of famine.
1974 The Derg overthrows Emperor Selassie in a coup.
1977 Colonel Mengistu assumes power.
1977-1979 Thousands die in the “Red Terror” led by Mengistu.
1984-1985 Worst famine in decades occurs.
1987 Derg communist constitution adopted; Mengistu elected
president.
1991 May 28 EPRDF captures Addis Ababa and defeats Mengistu re-
gime.
1992 June 21 Regional and local elections are held for transitional gov-
ernment.
1993 March Opposition party meeting in Paris.
1993 May Ethiopia recognizes Eritrea as an independent state.
1993 December Peace and reconciliation conference organized by opposi-
tion.
1994 February Opposition meets with former President Jimmy Carter.
1994 June 5 Elections for Constituent Assembly held.
1994 December 8 Present-day constitution is adopted. President Meles Ze-
nawi becomes Prime Minister.
1998-2000 War ensues between Ethiopia and Eritrea.
2000 May Parliamentary elections held. They result in EPRDF victory.
2005 May 15 Protests ensue over alleged voting irregularities. 40 people
are shot.
2005 August-Sep- Election re-runs for over 30 seats. Officials claim that the
tember ruling party has sufficient seats to form the government.
2005 November Protests over May election results take place. The govern-
ment detains thousands of opposition members and jour-
nalists. 46 protesters die.
2006-2007 Tensions heighten between Ethiopia and Somalia. Ethiopia
claims it was battling the Islamic militia in Somalia. Eritrea
is accused of supplying arms to Islamist administration.
2007 June Opposition leaders are given life sentences for 2005 election
protests, but are later pardoned.
2008 June Peace agreement between Ethiopia and Somalia is signed.
2008 July United Nations votes to end peacekeeping mission moni-
toring border between Ethiopia and Eritrea.
2008 December Government re-arrests key opposition leaders involved in
2005 protests.
2009 January Parliament passes bill, which bans foreign agencies
involved in human rights or conflict resolution work as a
means of restricting foreign involvement.
2009 January Ethiopia withdraws all of its troops from Somalia.
EXERCISE
Answer the following questions
1. Explain the components of the legal system?
2. What are the main sources of law in Ethiopia?
3. What are the main functions of a national legal system?
4. How many constitutions are there in Ethiopia?
5. What is the difference between 1931 and 1995

Constitution?
6. What is the constitution of Ethiopia?
7. What is the first Ethiopian constitution?
8. Explain the role of court decisions as a source of law in
contemporary Ethiopia.

1. The legal system that originated in England and is now in use
in the United States, which relies on the articulation of legal
principles in a historical succession of judicial decisions.
a. Misdemeanor
b. Case Law
c. Common Law
d. Sir William Blackstone
2. Crimes conducted over the internet or other computer network.
a. Embezzlement
b. Tort
c. Commentaries on the Laws of England
d. Cybercrime
3. The body of law that defines crimes and the punishments that go
with them.
a. Precedent
b. Criminal Law
c. Damages
d. Tort
4. Crimes that are highly visible to the public; also called street
crime.
a. Ordinary Crime
b. Stare Decisis
c. Visible Crime
d. Street Crime
5. A series of books containing the written judicial opinions of a

particular court.
a. Reporter
b. Cybercrime
c. Embezzlement
d. Substantive Criminal Law
6. An English legal scholar who wrote the Commentaries on the
Laws of England, a set of law books that had a major influence of
the development of the criminal law in the United States.
a. Sir William Blackstone
b. Phishing
c. Case Law
d. Commentaries on the Laws of England
7. A serious crime, usually punishable by at least one year in prison.
a. Felony
b. Case Law
c. Damages
d. Street Crime
8. An offense punishable by one year of imprisonment (usually in a
county jail) or less.
a. Misdemeanor
b. Damages
c. Sir William Blackstone
d. Cybercrime
9. Theft of an employer’s property by an employee.
a. Case Law
b. Hate Crime
c. Embezzlement
d. Substantive Criminal Law
10. A crime motivated by racial or other prejudice; often violent.
a. Case Law
b. Reporter
c. Hate Crime
d. Common Law
ANSWERS
1. (c) 2. (d) 3. (b) 4. (a) 5. (a)
6. (a) 7. (a) 8. (a) 9. (c) 10. (c)
REFERENCES
1. Adem Abebe, “A constitution without a guardian: Is the Ethiopian
Constitution really supreme?” Centre for Human Rights, University
of Pretoria
2. Adem Abebe, Rule by Law in Ethiopia: Rendering Constitutional
Limits on Government Power Nonsensical, CGHR working paper,
University of Cambridge Centre of Governance and Human Rights,
2012.
3. Aleardo Zanghellini, “The Foundations of the Rule of Law, “Yale
Journal of Law & the Humanities: Vol. 28: I ss. 2, Article 2. 2017
Available at: http://digitalcommons.law.yale. edu/yjlh/vol28/iss2/2
acessed.10/11/2018
4. Ali, S.S. and Javed Rehman (2001) Indigenous Peoples and Ethnic
Minorities of Pakistan: Constitutional and Legal Perspectives
(London: Taylor and Francis).
5. Amnesty International (2010) “As If Hell Fell on Me”. The
Human Rights Crisis in Northwest Pakistan (London: Amnesty
International).
6. Anthony Valcke, The Rule of Law: Its Origins and Meanings (A
Short Guide for Practitioners), American Bar Associ ation Rule
of Law Initiative, 2012, availavle at https:// www.researchgate.
net/publication/255726723_The_Rule_of_Law_Its_Origins_and_
Meanings_A_Short_Guide_for_Practitioners
7. Bakker, P. (2009) Indigenous Family Law in South Africa:
From Colonial Repugnancy to Constitutional Repugnancy,
Paper Presented at the Annual Meeting of the Law and Society
Association, Grand Hyatt, Denver, Colorado, 25 May 2009, http://
citation.allacademic.com/meta/p303352_index.html (date accessed
16 June 2014).
8. Barfield, T., N. Nojumi and J.A. Thier (2006) The Clash of Two
Goods: State and Non-State Dispute Resolution in Afghanistan,
http://www.usip.org/ files/file/ clash_two_goods.pdf (date accessed
14 June 2014).
9. Bennett, T.W. (2004) Customary Law in South Africa (Lansdowne:

Juta).
10. Bennett, T.W. (2009) “Re-introducing African Customary Law to the
South African Legal System”, American Journal of Comparative
Law, Volume 57, Number 1, pp. 1–32.
11. von Benda-Beckmann, F. (2002) “Who’s Afraid of Legal Pluralism?”
Journal of Legal Pluralism and Unofficial Laws, Volume 47, pp.
37–82.
INDEX
A E
African legal traditions 143 Eastern Roman empire 90
American legal system 143 Emperor Hammurabi 72, 135, 136
Aramaic and Hebrew 79 English legal system 147
Eternal Law 12, 13
B
Ethiopian constitutional structure
Babylonian Laws 75 231
Babylonian legal system 72, 136 Etymological 12
British legal system 143
F
C
French legal system 145, 148, 218
Canon law 71, 119, 120, 121, 129, French Revolution 149, 151, 153
130, 131, 132, 133, 140
G
category 12, 14
Civil law 38, 43, 71, 118 German Civil Code 157, 158, 160
Civil Law 14, 19, 20 Germanic customary law 148
Code of Hammurabi 72, 73, 77, German legal system 143
85, 138
H
Commercial Code 156
Common law 7, 8, 36, 37, 38, 39, human rights 225, 227, 242, 248,
43, 44 274, 275, 278
Completeness 232
Constitutional Amendment 154 I
Constitutional courts 156 Islamic legal tradition 143
Criminal Law 14, 15, 18, 19, 20
J
D
Judicial system 147, 150, 156, 167,
dialogues 222 196, 218
Divine Law 12, 13 Justinian’s Institutes 89, 112
L Primitive notion 1, 2
Private Law 14, 19, 150, 158
Legal ideology 10
Public Law 14, 18
Legal process 2, 3, 34
Legal system 7, 8, 36, 37, 38, 44 R
Legal systems 71, 72, 73, 82, 116,
Reform 232
118, 119, 120, 123, 124, 126,
Roman code 75, 86
128, 129, 130, 132, 133, 135
Roman law 145, 148, 149, 157, 184
Legal tradition 45
Roman society 100
Legal transplantation 54
Rule of Law 222, 223, 224, 227,
Legislative 226, 228, 229, 230, 231,
281
232, 233, 234, 235, 236, 237,
238, 277 S
Lex Aquilia 87, 88, 112
Licinian Legislation 97 sexual inequalities 225
Simplicity 233
M Socialist legal tradition 143
Subsidiary law 100
Mesopotamian legal system 72,
Supremacy of Law 223
73, 85, 135, 136
T
N
Tribuni plebes 95
Natural Law 12, 13
non-governmental organizations W
(NGOs) 225
World’s Legal Systems 89
O
X
Oromo Liberation Front (OLF)
226, 273 XII Tables 85, 86
P
Penal Code Act. 15
Positive Law 12, 13

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Preliminary Considerations 1

1.1. EXPLAINING SOME NOTIONS

primitive notions, or those we cannot render clearer by any definitions.

1.1.1. Definition of Legal History

A legal historian should adopt an interdisciplinary approach to the

1.1.2. Approaches to Legal History

proponents of the holistic approach, legal history should be the study of

1.1.3. Importance of History

1.1.4. Reasons for Studying Legal History

Problems in the study of legal history

The Concept of Legal System

1.2. CLASSIFICATION OF LEGAL SYSTEMS

1.2.1. What is Legal System?

A system has been defined as considered principles or procedures of

1.2.2. Tests of Classification

1.2.3. Distinctive Mode of Legal Thinking

deductively. The Englishman improvises never making a decision

defines legal ideology as the philosophical, political, and economic

1.2.4. Reasons for classification

1.2.5. Classification of Laws

1. Eternal Law: The word eternal means something that would

According to Professor HLA Hart, a positivist,

Public and Private Law

Civil Law and Criminal Law

Substantive and Procedural Law

Municipal/Domestic and International Law

Human and People’s Rights.

Written and Unwritten Law

Common Law and Equity

1.2.6. Public and Private Law

Civil Law and Criminal Law

involves punishing and rehabilitating offenders, and protecting the

Difference between Civil and Criminal Law

2. According to civil law, It serves different degrees of punish-

4. Civil law is initiated by a The government files a petition in a

5. In the case of civil law, there is As a matter of criminal law, the

6. Criminal law is the body of “Beyond a reasonable doubt”: Burden

Substantive Law and Procedural Law

Difference between Substantive and Procedural Law

1. It establishes the rights, obliga- It follows the means and methods

2. It has independent powers to It has no independent authority to

3. This law cannot be applied in This law can be applied in both

4. It does not specifically deal with It deals with what is happening

5. These laws are regulated by These laws are regulated by statu-

1.2.7. International and National Law

International law refers to the general set of rules or principles that

Components of International Law

Sources of International Law

The International Law Commission

The link between National and International Law

Dionisio Anzilotti and Heinrich Triepel’s views

respected, is the binding force behind international law. He further

Anglo-Norwegian fisheries case (1951)

the delimitation of the Norwegian fisheries zone in which the

Bosnian genocide case (1996)

Corfu Channel case (1949)

• The dispute went to the International Court of Justice. The

The Difference between International Law and National

1.2.8. Substantive and Procedural Law

have their own functions and significance.

Procedural Law System

Interrelationship and Differences between Substantive Law

Procedural Law vs. Substantive Law

Differences in Structure and Content