Lecture note

Introduction to Law
By: Selamawit Getahun [LL.B, LL.M]
MTU, 2020/2021
"The study of the law qualifies
a man to be useful to himself,
to his neighbors, and to the
public."
Thomas Jefferson
Chapter I: Nature and Functions of Law
1. Definition of law

• Defining the term ‘law’ is not an easy task and there is no single and
universally accepted definition of law. Because:
• law is An abstract notion
• Law v. Morality, religion, social conventions and other normative
domians
There are different types of purposes sought to be achieved by law.
Its definitions is as many as legal theories w/c define it from d/t
perspectives; nature, source, purpose & effects on the societies..
The term changes from time to time & d/t scholars define the term d/tly.
 Definition of law cont’d
Pragmatic point of view, American jurist: defines law as;
• a principle/rule of conduct established to justify a production with reasonable certainty that
it will be enforced by the courts if ……by Benjanin Nation Cordazo
• prophecies of what the courts will do in fact, and nothing more pretentious. by Holmes
From the sociological perspective: Max Weber –defines law as:
 order w/c externally guaranteed by the probability of coercion (physical/ psychological), to
bring its conformity or avenge violation.
 for Montesquieu ( French revolutionary) "Laws in their most general significance are the
necessary relations arising from the nature of things."
 For Savigny (historical school of thought) law is not the creation of the will of individuals,
but the outcome of. the consciousness of the people, like their social history or their
language
 Definition of law cont’d
• .
• For Kant law is "a totality of the conditions‘ under which the free will of one man can be
united with the free will of another in accordance with the general law of freedom,“
• For others, law is a body of rules for human conduct within a community which by
common consent of this community shall be en forced by external power.
 Black’s Law Dictionary [Garner/2004]- defines it as rules of action/ conduct + issued by
authority + binding force (sanction) obeyed & followed by citizens
Generally, law is:
 legal order/rules of conduct- made by authority + tacitly or formally accepted by
the society + obeyed whether one like it or not + backed by external sanction for
disobedience
 2. Basic Features of Law
 Analysing the features and nature common to all laws would help us to
understand the concept of law.
Basic features and natures are:
1. Generality
2. Normativity
3. Sanction.
 2.1. GENERALITY

Law is a general rule of human conduct and does not specify the names of specific
persons or behaviours. Hence, its generality is both in terms of the:
a. individuals governed; the subjects governed
b. social behaviour controlled; It does not refer to any named specific act, killing by
shooting, spearing, hugging, stabbing, strike.. Eg. Whoever causes the death of a
human being intentionally or by negligence, no matter what the weapon or means
used, commits homicide. Art. 538/1 of CrC. But punishment differ.
• Yet, extents of the generalities decrease from universality to an individual person:
a. Every person has the inviolable and inalienable right to life, the security of person
and liberty art.14 & 15 of FDRE Constitution.
b. Every Ethiopian national has the right to vote & elected upon attainment of 18/21
c. No person shall be selected president for more than two terms Art. 70(4)
 2.1. Generality Cont’d
Purpose of Generality;
• it promotes uniformity and equality before the law: b/c any
person falling under the group governed by the law will be
equally treated under the same law.
• it gives relative permanence to the law. Since it does not
specify the names of the persons governed, the same law
governs any person that falls in the subject on whom the law is
made to be applicable. But no man made law is eternal.
• To avoid unnecessarily bulky law.
 2.2. NORMATIVITY
Law does not simply describe the human conduct it is made to control. It is
created with the intention to create some norms in the society
Law creates norms by allowing, ordering or prohibiting the social behaviour.
law can be classified as:
1. Permissive law: give right or option to their subjects whether to act or
not to act. Has the right, entitled, permitted, free, may…..Eg. Means of
marriage. Has the right to vote or elected.
2. Directive law: commands the subject to do the act provided in the law.
Mandatory: it is not optional: must, shall, duty, obliged……
 the subject has legal duty to do it whether s/he likes it or not, otherwise, there is an evil consequence that s/he
incurs unless s/he does it as directed by the law. Eg. Workers, debtors, taxpayers…
 2.2. Normativity cont’d
3. Prohibitive law:
• discourages the subject from doing the act required not to be done.
• If the subject does the act against the prohibition, an evil follows as the
consequence of the violation.
• Shall not, crime, may not, no one, prohibited, punishable….
• All criminal code provisions are prohibitive laws.eg.
1. Whoever instigate another to commit suicide or aids him to do so, is punishable
with up to five year if it is consummated. Art. 542 of CrC.
 2.3. Sanction
Each & every member of a society is required to follow the law. If not,
sanction follow it.
How it apply for permissive law?- the sanction is not addressed to the person
permitted to do the thing but to the rest of the world commanding everybody
else not to interfere with the rights of the person so entitled.
Sanction:
penalty or coercive measure that results from failure to comply a law.
is to prompt a party (a wrong doer) to respond.
In other words, sanction will make the wrong doer to think that s/he made a
fault and s/he should correct it.
Sanctions could be Criminal, civil or administrative Sanction
 3. Legal Theory

• Metaphysical issue of Law-conceptual or doctrinal not taxonomic; does law

have objective existence? If so where to find it and how to find it?
• Natural law locates law in justice or human nature
• Positivism finds law either in the act of authority or might
• Dworkin find law in legal principles and reasoning known as interpretation
theory
• Realists find law in court decisions/what the court will do in fact/
• Critical Schools sees law in might/tools of powerful/
• Historical School locate law in tradition/past realities of the society/
• Sociological School find law in social institution/current reality of societies/
• Post Modernists deny the metaphysical existence of law
 Legal theories cont’d
D/t theories of law based on: ultimate source, -methods to know, -content
Four legal theories due to scope of the course.
1. NATURAL LAW THEORY; Socrates, Plato, Aristotle, Hobbes, Lock, Rousseau
• is the earliest of all theories
• Law is standards and rules w/c determine what is wrong or right, just or unjust.
• Individuals are not necessarily morally justified to refuse to obey the command of
the state that may contradict law.
States that there are two types of law that govern social relations.
1. natural law: called law of reason, eternal law, rational law, principles of natural
justice.
2. positive law:
 Legal theories cont’d
1. Natural law; not made by person but controls all human beings of the world, Source of law
objectively derived from nature; principles of natural justice. immanent in nature
 laws do not vary from:
 place to place: Universal
 time to time: Immutable/eternal
 they should be "discovered" rather than "created”
 even used to control or weigh the laws made by human beings.
 Positive law must conform to basic concepts of natural law. Universal morality
 The English Revolution of 1888, the American Declaration of Independence and the French
Revolution of 1789 were results of the Natural law theory.
2.Positive law; made by person to control the relations within a society and so it may vary from
society to society and also from time to time within a society.
 Legal theories Cont’d
2.POSITIVE LAW THEORY; imperative or analysts law theory; john Austin, Bentham and
H.L.A Hart
 law is a command of the sovereign to his/her subjects backed by sanction; has 3 elements
• Command is the rule given by the sovereign to the subjects or people under the rule of the
sovereign.
• Sovereign refers to a person or a group of persons demanding obedience in the state/ law
maker or parliament. Which is habitually obeyed by the most people in the society
• Sanction is the evil that follows violations of the rule.
• It separate what the law “is” from what the law “ought” to be. – separation thesis. law and
morality are conceptually distinct.
 rules made by the sovereign are laws irrespective of any other considerations as there is no
need to use reason, morality, or justice to determine the validity of law.
 Criticism: primitive law was before state, obedience many rules are by reward/inner morality,
 Legal theories Cont’d
3. MARXIST LAW THEORY: PP => class/state => Law
 private property is the basis for the coming into existence of law and state.
 since there was neither law nor state in primitive society for there was no private property.
 property was the cause for creation of classes in the society in which those who have the
means of production can exploit those who do not have these means by making laws to
protect the private property.
 Law is means of exploitation of workers by those of the haves or capitalist thus law by
capitalist should wither away and replaced by the communist. b/c:
 people can attain a perfect equality at the communism stage in which there would be no
private property, no state and no law.
 It is critical school of taught- w/c criticize law saying it has been an instrument for peoples
in power to protect their interests
 Legal theories Cont’d
4. REALIST THEORY OF LAW Oliver Wendell Holmes, Jerome Frank, N. Cardozo
law is what the judge decides in court. we should look for legal rules/norms in judicial decisions
and other acts of applying law
 rules not put to use to solve practical cases are not laws but merely existing as dead words and
these dead words of law get life only when applied in reality.
 it is the decision given by the judge but not the legislators that is considered as law thus the
lawmaker is the judge and not the legislative body.
 basis in the common law legal system in which the decision previously given by a court is
considered as a precedent to be used as a law to decide future similar case.
 But this is not applicable in civil law legal system for the only laws of their legal system are
legislation but not precedents.
 The Big Three- Oliver Wendell Holmes Jr, Karl Llewellyn, Jerome Frank
Discuss similarities and difference of above theories of law.
 4. Functions of the Law
• In modern sense law is considered as an means to an end, not as an end in itself
• The end is securing of social justice
• As Salmond puts it - “law is a body of principles recognized and applied by the State
in the administration of justice.”
• Hobbes & Locke- “the end of law is not to abolish or restrain but to preserve or
enlarge freedom and liberty.”
• Kant- aim of law is the adjustment of one’s freedom to those of other members of the
community.
• Bentham- the purpose of law, is maximization of the happiness of the greatest number
of the members of the community. This is very practical version. Utilitarianism
• Roscoe Pound ‘s functions of law :- maintenance of law and order in society; to
maintain status quo in society; to ensure maximum freedom of individuals; and to
satisfy the basic needs of the people.
 Function of Laws cont’d
Generally.,
1) Social control; for preservation of peace and order or status quo: norm +
arrest/imprison….
2) Dispute settlement; it settle dispute in the societies amicably and thereby prevent using
law into once hand
3) Social change/engineering; punishing & rewarding for acts towards sth.
4) Protect citizens rights from violation by gov’t and others; by define their power, right,
and duties.
5) Bring stability and security in the social r/n: uniformity & predictability- eg. Contract.
6) Ensuring justice;
a. Distributive justice seeks to ensure fair distribution of social benefits and burden among
the members of the community.
b. Corrective justice: seeks to remedy the wrong.
 5. Relationship B/n Law & State
• What is state?: it is synonymous with the term country that apply to self-governing political entities
• State; is an entity that occupies a community of people(s) inhabiting a definite territory, under a political
authority;
• four conditions have to be fulfilled for the existence of a state.
1. permanent population; an aggregate of individual who live together as a community, though they may
belong to d/t ethnic, creed, cultures or be of d/t colors. It is determined by internal law on nationality.
2. definite territory; although there is no strict rule that the frontiers of a state must be fully demarcated &
defined; may still be disputed. It is not matter whether the territory is small or large. Eg. Art. 2 FDRE
Const.
3. effective control by a government ; has two aspect ;
• Internally; capacity to establish and maintain legal order in the sense of constitutional autonomy
• Externally; the ability to act at the international plane w/o being dependent on the other state.
• But, its temporary interruption thru civil war or occupation, would not necessarily amount to the non-existence of the
state.
4. Capacity to enter in r/n with other state; is not generally accepted as necessary.
• Issues: Palestine( is it state), Jerusalem( is state- condominium: where more than one state exercises
sovereignty conjointly).
 Relationship B/n Law & State cont’d
Law and state:
which one is superior, come first- is the law created the state or law created by
state?
which comes first law or state? Like puzzle b/n chicken and egg.
• three main legal theories with regard to the r/n ship b/n law & state.
1. state is superior to & creates law; Austin- law is command of state/sovereign- w/c
is above the law but member of the legislature is individually bound by the law.
2. Law is created by the state & binds it when it comes into existence; Ihering: theory
of auto limitation-the State is the creator of law, but voluntarily submits to it.
3. law & state are the same thing looked at from d/t points of view/two sides of the
same coin/Kelsen/: When we think of the abstract rules, we speak of the law: when
we consider the institutions, which create those rules, we speak of the State.
 The r/n ship b/n legal norm & non-legal norm
• Norm: is the standard accepted by society(in/voluntary) to determine/judge
something/behavior as right or wrong. Black’s Law Dictionary/2004/.
• Eg. one of the natures of law is that it is a normativity.
• legal norms are binding: If person fail to adhere/complied with- sanction.
 3 formal elements/parts of a norm’s structure are:
1. Premise (hypothesis): description of the addressees, social circumstances or events
2. Disposition: describes the kind of human behaviour envisaged and preferred.
3. Sanction: describes what will happen if the norm is disobeyed
Yet, one article may not include all, thus it is important to understand the whole legal
system to apply it.
r/n ship b/n legal norm & non-legal norm cont’d
• Social norm: is the norm that govern human relation/behavior-----law, morality., custom….
• Both legal and non-legal norms (morality, custom, religion, ):
1. Normative- means both need to create and develop human behaviours.
2. binding regardless of the consent of individual bound and supported by serious social
pressure for conformity.
3. the members of the society are required to comply with those rules to live to gather
4. May coincide on many norms: eg. Murder, stealing,
2. The d/ce:
a. Time: Non-legal norms have been inexistent before state is created while legal norms have
come into existence with the coming into being of state.
b. Enforcement: sanction determined in advance & applied by organized machinery vs. not
c. Source: imposed by the State vs. societies/God.
d. Change: at a given time by specific organ vs. gradual…..by community practice.
 Cont’d
• Generally, law is obligatory social rule & d/t from
custom , religion,…as law is;
1. Obligatory
2. Made by public authorities
3. Sanction in organized manner
 Chapter II: Sources of law
• Where do we obtain the rules? Or where does a judge
obtain the rules
• Formal source: Who confers binding authority on a rule?
• Literary source: Where you do I find the laws? the place.
• Thirdly, it may mean that which supplies the matter or
content of the law. Custom, religion, agreement, opinion
of text –writers, statute, precedent or judge made law, all
come under this category. _____ Material sources
 Definition: has 3 prospective:-

1. Literary SL:- refers to where does the judge

obtain the rules by which to decide cases? In
this sense, SL are: statutes; judicial precedents;
custom; morality; and equity. Literature of
jurisprudence.
2. Material SL:- refers from where does the law
generally draw its content.
3. Formal SL:-binding force- sources that makes
the law binding; law maker
 Sources of law cont’d
Legally speaking (in legal research) source of law- is about Material and Formal
source.
1. Material source; the content of law
2. Authoritative source of law; formal sources /sources that makes the law binding;
law maker
 Material source of law
• Custom
• Religion
• Legislations
• Precedents
 Custom as a source of law
• What is means, how it can be material SL, what are preconditions….
• Custom is one of the oldest sources of law making
• Derived from the word ‘Coustume’ some say it is derived from a latin word consuetdo
• The word literally means tradition, practice, usage, observance, way of doing something , manner etc
• The reason being that with the emergence and growing power of the State, custom is largely superseded by
legislation as a source of law
• Custom is continuing process of conduct which by the agreement /consent/ or express approval of the
community observing it, has come to be regarded as fixing the norm of conduct for members as society.
• they use and practise it from time to time, and it is by frequent use and multiplication of this act that the
custom is made
• Custom means:-
 Usage or practice common to many-particular place or class or habitual with an individual
 It is a repeated practice
 Long established practice considered as unwritten
 It is a tradition that passes from generation to generation
 It is a collective habit of a society, that regulate social life
 Custom as a source of law
• There are two views regarding custom:-
1. Historical school: Savigny- custom is in itself an authoritative source of law b/c
present cannot be understood without reference to the past.
2. Analytical school:-Austin –
the custom is not an authoritative source of law at all.
 Until it becomes part of judge-made law (judge does base his judgment on custom),
or adopted and incorporated in law the rule of custom has no authority at all.
only one formal sources that is, the will of the state.
 Custom as a source of law
• Legal custom is different from social custom, and before a custom is recognized
as legal and therefore binding, it has to satisfy certain tests, which the state has
laid down.
• Thus, custom is not a formal source of law, for that can only be the will of the
state.
• State recognition alone can invest custom with the full authority of law.
• It is whoever one of those sources which supplies the principles to which the will
of the state gives legal force, and since it is recognized as of right, it can properly
be classed among the LEGAL MATERIAL SOURCE of law.
• Custom occupies an important place as a source of law even to this day because
most of the material contents of the developed systems of law have been drawn
from ancient customs.
• The laws relating to succession, inheritance, property, contract, sale of goods,
negotiable instrument etc, are evolved from early customary rules
 REQUIREMENTS FOR CUSTOM TO BE RECOGNIZED AS LAW

The preconditions to legally consider custom as valid custom-customary law are:-

1. Reasonableness:- conforms to the norms of justice, public utility/policy, equity.
2. Consistency:- conformity with statute law-act of Parliament
3. Compulsory Observance:-followed by all concerned without recourse to force &
without the necessity of permission of those who adversely affected by it.- not as
optional
4. Continuity & immemorial antiquity:- continuously in existence from the time
immemorial.
5. Certainty:- being observed continuously and uninterruptedly with certainty- is to
prove the existence of a custom since time immemorial.
 2. RELIGION AS SOURCE OF LAW
• In ancient time religion exerted great influence on primitive societies.
• It contributed very largely to the growth of legal systems in most parts of the world.
The ancient Roman and Greek laws were largely based on religion
• The FDRE Constitution permits the adjudication of family and private disputes
according to the rules of religion(Art. 34(5) of the Constitution).
• It is also recognized that marriage concluded pursuant to the rules of religion as one
type of marriage under our law (Art. 579 of the Civil Code and Art. 3 and 26 of
RFC).
 Other sources of law
1. Constitution:- by providing general rule & predicting laws for details.
2. International instruments:- establishes international standards.
3. Legislations:- b/c, it involves lying down of legal rules by the legislatures, which the
State recognizes as law. Secondly, it has the force and authority of the State
4. Decision of court:- eg. old Judgments are the sources of the 1960 civil code.
 Precedent/doctrine of stare decisis:- When a decision contains a new principle, it is
binding on subordinates courts and has persuasive authority for equivalent courts.
 FSC cassation- is empowered to render a decision that is binding on federal as well as
regional courts at all levels [Proc. No. 454/2005, Art 4]. decision to be binding must be-
1. rendered by the cassation division of the Supreme Court;
2. the members of judges must not be less than five;
3. the decision should be with regard to interpretation of laws.
In general, judgements were/are used as source for Ethiopian laws.
 Formal source of Law
• In a modern state, the concept of formal source of law is the will of state manifested
in statutes or decisions of the courts of law.
• It is from which a rule of law derives its source and validity.
• It includes law making authority, procedure through which law shall pass before it
comes into existence and constitutional validity.
1. Sovereignty:-law making authority
2. Procedural validity
• There are procedures a particular draft of law should pass through in order to get its
binding force. FDRE Constitution (Art 57), laws should be deliberated upon.
• Then, the HPR will pass it. After that, the President of the Country signs the law.
• Next, promulgated on Negarit Gazeta- for judicial notice [Arts. 57 of the FDRE
Constitution; and Proc. No 3/1995, Art 2).
 Formal source of Law cont’d
3. Substantive validity
• Every law shall conform to the rules and principles to the FDRE Constitution.
• Pursuant to Article 9(1) of the Constitution, a law that contravenes the Constitution
shall be of no effect.
• Thus, a law will derive its force only where it is made in line with the Constitution.
• The substance or content of the law shall be valid tested against the supreme law of
the country.
Chapter III: Major Legal Systems in the World
• Definition/contents/; classification- grounds, d/ce….
• The grouping of laws into families, simplifies and facilitates an understanding of the
world’s contemporary laws
• A legal system is defined as a synergy of legal rules ,legal principles, legal standards,
legal policies, legal structures , legal tradition, legal actors, legal extension and legal
penetration operating in a given geographical area.
• synergy implies that legal system is not a mere summation of the elements listed
rather it is qualitatively different from and bigger than totality of those elements.
• system implies existence of several elements put together to achieve a certain
purpose.
• A legal system: may refer to the present or the past legal system.
 Legal Systems cont’d
• Legal rule; all specific law; procedural, substantive & adjective law
• Legal policy; is the justification behind legal rule & standard. You may get from deliberation/minutes.
• Legal standard; don’t address specific concrete situation. it is vague. Eg. Good cause, prudent person,
reasonable person…
• Legal structure : all those institutions responsible for creating, modifying, interpreting, improving and
implementing laws. Eg. law schools, bar associations, the police, courts, the legislature, the executive
and prison administration.
• Legal actors: the persons acting in legal structures-eg. members of the parliament, officers of the
state, law students, law instructors, legal practitioners, etc
• Legal penetration: desire that communities would adjust their behaviors to the imported laws
• Legal extension: 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
• Legal tradition/perception : 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-the way laws
are made, modified, interpreted and the way the legal actors and structures function. It is abstract
element of a legal system
 Legal Systems
According to H.L.A. Hart, five factors have to coexist to create a legal system. These
are:
• Rules that forbid certain conduct and rules that compel certain conduct on pain of
sanctions;
• Rules requiring people to compensate those whom they injure;
• Rules stating what needs to be done in certain ‘mechanical’ areas of law, such as
making a will or a contract;
• A system of courts to determine what the rules are, whether they have been broken
and what the appropriate sanction is;
• A body whose responsibility is to make rules and amend or repeal them when
necessary.
 Legal Systems cont’d
• Each state has its own legal system.
• The structure and characteristics of these systems are highly variable.
• Some legal systems are organized on the basis of a written constitution (e.g. the United States), some
have constitutional systems not resulting from a single written text (e.g. the United Kingdom), and some
do not have an explicit constitutional framework.
• The relative position of statutory law, religious law, customs and case law varies greatly from one
country to another.
• It is possible to classify national legal systems into several groups, based on the existence of common
characteristics, legal concepts and traditions.
1. Civil law systems,
2. Anglo-American/ common law/ systems,
3. collectivistic legal systems,
4. Islamic law,
5. Talmudic law,
6. Chinese law etc. /the above three are religious systems/
 C lasifcto n o fL eg alS y stem s

• There are several basic elements which are used for the purposes classifying the
world's legal systems .
• The first group of elements: sources of the law - what constitutes law in each legal
system (statutes, customs, judicial decisions, generally accepted legal principles,
the opinions of jurists etc.)
• The various groups of legal systems place different emphasis on these sources:
• civil law systems place more emphasis on statutory law
• The Anglo-American legal system gives a broader role to case law, which is
considered to be the source of many of its rules, and has developed complex
technical instruments to apply, interpret and modify such case law.
• A third group of characteristics used to classify legal systems is based
on the historical development of each national law.
• Historically, civil law systems have been based on Roman law and on
the codes enacted in continental Europe;
• common law systems are based on English common law;
• legal systems from the Muslim tradition are based on Islamic law, etc.
o The system of codified law that prevails in continental Europe, South
America, and elsewhere is known as civil law, in contrast to the
common law system that applies in England, former British colonies,
the United States, and most of Canada.
 Legal Systems cont’d
In general criteria to categorize:
1. race, geography, language,
2. sources of law,
3. substance of law,
4. ideology, legal technique and the system of conception of justice.
5. the historical development of each national law:-
 Categorization of legal systems of the world has a couple of importance:
a. technical and authority; those legal systems that are grouped together
can borrow legal materials from one another where there are gaps
b. study of the subject convenient/study of the history of laws of societies is
systematic.
 Legal Systems cont’d
 civil vs common legal system.; major ones.
 A legal system is taken as a major legal system based on such factors as:
1. its influence on the development of other legal systems;
2. its geographical spread,
3. the technological and economic advances of the country being
classified
 Legal Systems cont’d
1. Common Law (The Anglo-American) Legal System: UK, USA,
Canada..
 is the totality of the law of the Anglo-American legal family.
 applies in England, former British colonies, the United States, and most of Canada.
 is a system of law that is originated from the judgments of judges.
 The rules and principles are not mostly written by the legislature (Parliament), but
created by courts in solving the disputes that are given to them to be decided.
 It is mainly based on the idea of precedent: when a court makes a decision about a
case, that decision becomes a part of the law of the country.
 Judges look to past cases and precedents to resolve a case.
 The decisions of higher courts are binding on lower courts, and much of the law is
left to the courts to develop.
 Thus, the law develops through times.
 Legal system cont’d
Common Law cont’d

• Concepts such as equity, or consideration, have a technical sense under

common law which has no exact equivalent in other legal systems.
• The judge of the common-law system is more passive.
• Common law functions as an adversarial system : the judge just listens the
opposing parties and acts as an arbiter.
• In a common law country, lawyers make presentations to the judge (and
sometimes the jury) and examine witnesses themselves.
• common law is a system based on the procedure, not flexible at all.
 Legal Systems cont’d
2. The Civil Law (continental Legal System)eg. Germany, French, and Italy
• is the most common legal system in the world: it is used in almost all of Europe, Asia and South
America and in much of Africa.
• is a system of law whereby the rules and principles intended to govern the behaviours of the society are
given by the Parliament, i.e. the legislature, based on codes which cover different legal topics.
• especially in their methodology and terminology, shaped decisively by the Roman law scholars from the
Middle Ages to 19th c.
• Law, enacted by parliament, containing answer to every fact-situation-prospective.
• Believed in separation of power
• the function of the judge was assumed to be merely applying the written law to the facts.
• Inquisitorial:- the judge has to inquire, by questioning directly the witnesses to search the truth..
• The judge’s role is to establish the facts of the case and to apply the provisions of the applicable code
 Legal Systems cont’d
Common Law Vs. Civil Law Legal Systems: Contrasting:
1. Beginning: common law was conceived in 1066-born of union between older
Saxon law & the custom of the Norman conquerors. civil law was older./200AD
2. Source/maker: main creator of law- in common law is judiciary while deciding the
case, while in civil law is legislator.
3. Precedent: decisions in individual cases & the opinions handed down by courts in
particular lawsuits have the force of law; extended to other similar cases or to other
people in common law while it cannot in civil law.
4. Legislation: currently, both have legislation. But, in common law it is piecemeal &
not detail while in civil law- codified and detail.
5. Spread: Common law- only by colonization, while civil: freely (to middle & far
east) + colonization.
6. Language: common law today is virtually exclusively English while most civil law
systems the terminology is likely to be wholly in the local language.
 Chapter IV: Classification of laws
is a systematic grouping of law based on nature of law or governed subjects so as to
understand easily.
Importance;
• stated effectively with a minimum of repetition, over lapping and potential conflict;
• administered effectively;
• taught effectively, and developed effectively for new situations
• It is difficult to establish a sharp division between the different branches of the law.
 Classification of law cont’d
1) PUBLIC & PRIVATE LAW
1. Public law
 regulate the r/n b/n state and its citizens.
 is applicable to the state in its relations with its subjects,
 Public law is sub divided into constitutional and administrative law
• Constitutional law; defines the organization of the state, its fundamental rules,
mode of government, and the attributions of its political organs, their limits and
their relations
• It deals with the ultimate questions of the distribution of legal power and of the
functions of the organs of the State
• Administrative law; regulates the operation of the executive power in all its
degrees, beginning with cabinet ministers and descending to its most humble
representatives
 Classification of law cont’d
• Criminal law; the infliction of punishment directly by the organs of the state, is also
usually regarded as falling under the head of public law
• Tax law
Private law:
 regulate the r/n among individuals or b/n individuals and government acting in
private capacities.
 regulates the acts, which individuals do in their own names for their own individual
interest
 Commercial law; traders and bus. Org., law of insurance, banking….
Civil law; law of person, family, succession….
 Classification of law cont’d
2. Substantive and Adjectival law (law of procedure & law of evidence)
a. Substantive law; provides the rights and obligations of citizens. Eg. Civil code- art.3367
substantive law is that which defines a right while procedural law determined the remedies. P
b. Adjective law:- enforcement tools.
1. Procedural law;
 provides the procedures and mechanisms of enforcing the rights and obligations, which are provided in
substantive law.
 governs the process of litigation…thus called ‘law in action’.
 law governing the manner of asserting and defending rights before courts
 Criminal procedure code (art. 224) and civil procedure code-(art 483)
2. Law of Evidence; how to prove- allegation
 is the law that consists of the rules and principles, which govern the relevancy, admissibility, weight and
competency of evidence.
 the role of judges, the rights and duties of the parties, the nature of proof, the availability of witnesses,
documents and other means of proof, the admissibility of evidence and other similar matter.
 Cont’d
3. INTERNATIONAL and NATIONAL LAW
International law; consists of rules which regulate relations between State inter se.
body of customary and conventional rules which are considered legally binding by civilised States
in their intercourse with each other.
1. International public law;
 governs primarily relations of sovereign states.
 rules that govern the States and other international subjects like multinational corporations.
 Includes treaties, customary international law- state practice + juiscogens
2. International private law;
 Deals with private legal relations which involve an extra national element/foreigners/.
 Regardless of extra-national elements, these choices of law rules are enacted by the national
gov’t & known as conflict of laws
 Eg. X (Ethiopian) & Y (Eritrea): married in New York, living in Canada, then disputed?
Divorce, partition of property- by which law, court….
 Classification of law cont’d
National law:-
• law that pertains to a particular nation (as opposed to international law)
• is a law of a nation, for example the law of USA, France, or Ethiopia.
• is applicable all over a country in question.
• It is also known as law of the land. It is in effect in a country and applicable to its
members.
• may be statutory, i.e. enacted law, administrative or case law
Local Law:- is the law of a particular locality and not the general law of the whole
country. They may be of two kinds – local customary law and local enacted law.
 Classification of law cont’d
4. Civil versus Criminal Law
Civil law is that branch of law dealing with the definition
and enforcement of all private or public rights, as opposed
to criminal matters
criminal law unquestionably forms part of public law. The
state alone, representing the nation, has the right to punish.
Based on;
Sanction: pocket vs. liberty:- what are the aim of punishment-
discuss- RRID
Standard of Proof
Parties:- enforced by individual or state.
Private or public
Currently, criminal law enacted in 2004 (art. 865)which is a
revision of the 1957 Penal Code of Ethiopia. The designation is
changed to criminal law because penal law has negative
connotation which carries penalty only.
 Chapter V:- The Making of Law
1. What it means?
2. What are steps for law making? How laws are made?
3. Who is empowered to make law, & which law made by which organ?
Definition:-
• Law making is the process of establishing a new rule of law on a particular subject.
• Is a situation where by a certain normative standard is legalized or converted into a
rule of law.
• There are disputes with regard to the power of making of laws. Those who believe in
separation of power
• The protagonists of the Doctrine of Separation of powers assert that the state’s power
of sovereignty is in no way divisible. Consequently, they argue, that the law making
power should be carried out by the state as one whole entity.
 Law Making Cont’d
• Steps for law making:-
1st stage:- introduction of a bill:- initiation
 A bill either proposes a change in the existing law or makes new proposals;
 it is the first draft of what will ultimately become a statute. Or who may initiate
legislation?
 From concept of democracy- initiation of draft should rest with the elected officials
 In countries where there is strict separation of power as in USA, members of the
legislative assembles alone have the right to introduce bills. Yet, president may also
initiate drafting of laws.
 In western parliamentary system in which there is no strict separation of power- it
can be initiated by parliament or executive. the governments have the right to initiate
legislation directly.
 Law Making Cont’d
2nd stage:- Deliberation/discussion
 it brought to Speaker of the Parliament =>to standing committee to check whether it
fit for open discussion of the parliament=> if decided for goes forward by committee,
it will published/printed=> debate
3rd stage:- Decision/Adoption thru vote by parliament.
4th stage:- Promulgation
 is the last stage in law making.
 The passing of a bill by the legislature is generally the stage of the legislative process.
 The work done by the two Houses must then be promulgated.
 Promulgation authenticates a bill as a law and gives it binding force; it also entails
publication
 Law Making Cont’d
Who has the power to make law:-

1. HPR- proclamations
• The sovereign (has the highest law enacting power) article 55
• Thus, the HPR has the power to enact laws in the form of proclamation, for the Federal State, in the following
sectors [Art. 55 of the FDRE Const]:
• Electoral laws and other laws with regard to the enforcement of political rights;
• Nationality and other laws;
• Natural resources of the Federal State;
• Inter-region and foreign trade law;
• Federal transportation laws;
• The House of People’s Representatives is also empowered to enact laws in the form of codes on [Art. 55 of FDRE
Constitution].
•  Labour Code;  Commercial Code;  Criminal Code;  Civil laws necessary to establish and sustain one
economic community.
• State Councils represent the highest level of state authority, and may legislate on all matters falling under state
jurisdiction
In addition to the House of Peoples’ Representatives, executive organs
(article 76) have also given the power to enact regulations and directives
2. COM- regulations
the Council of Ministers shall enact regulations pursuant to powers
vested in it by the HPR. Article 77(13) of the FDRE Constitution
Here, its clear that legislative power is delegated power from HPR
3.Each ministry- directives
Ministries are also given the power to enact directives to implement the
powers given under proclamations
These are non-sovereign law making bodies. Bodies other than the
legislature are non-sovereign law making bodies.
They are subordinate legislatives
 Law Making Cont’d
• Law making in Ethiopia:-
1. Initiation of bill-
 By whom-
 COM (The Council of Ministers ),
 Each ministry,
 the House of Federation; HoF
 the Speaker;
 and the Federal Supreme Court; members of the House; Committees of the House; and
 other governmental institutions directly accountable to the House have the power to initiate and submit draft bills to
the House on matters within their jurisdictions;
How?- Any draft must be made in writing & submitted to the Speaker to its presentation to
the House.
2. Deliberation/Discussion
 Then the Speaker must present the summary of the draft law and deliberation on the content in general must be held.
 Then, the Speaker will refer it to the concerned standing committee (eg. Social, pastoral's, women's affairs….
 Law Making Cont’d
Committee will present it back with the proposal after-20 working days
Then, 2nd reading by speaker to the HPR, ( if not exhausted it may be referred
for further scrutiny)
3. Adoption/endorsement:- House shall pass the bill (draft law) after a through
discussion on the final proposal
4. Signature:- Speaker shall send the draft to the president for signature. The
President is required to sign the bill within 15 days other wise the bill will be
effective after 15 days if the President fails to sign it.
5. Publication/Promulgation:- the ratified law must be numbered by the Speaker
and thereby published in the Federal Negarit Gazeta.
 Chapter VI- Hierarchy of Laws
• Its definition
• Hierarchy of laws in Ethiopia
• Hierarchical relationships between Constitution and international law
 Hierarchy of Laws cont’d
Definition:-
• Superior & subordinate relationship
• The term “hierarchy” expresses the “ascending series ranks or degrees of power and
authority with the correlative subjection, each to the one next above”
• a chain of subordination” between laws.
• is a system in which all the laws of a certain country are put at various levels or ranks
according to their order of importance
• The order of importance of laws is very much related to the order of importance of state
organs that make laws
• It is believed that laws derive their validity from the authority that respective makers
posses. Thus, the superior and subordinate kind of relationship exists between the laws.
Thus, hierarchy of law is coordinated arrangement of laws among which superior and
subordinate relationship is manifested as direct reflection of power order in the law-making
organ
 Hierarchy of laws Cont’d

• we do have two sets of laws: State’s and federals

• Supremacy of constitution-art.9/1
 The federal constitution, being the source of powers of both the central and the
regional governments, is believed to be the supreme law
 The supremacy of the constitution and its rigidity are the essential characteristics of
the federal constitution and they are also the manifestations of the idea of federalism
itself.
 it can’t be changed unilaterally by either federal or regional gov’t
 Any law should confirm it
 But, rank of international laws are debatable.
 proclamations: (primary legislation).
the federal statutes (proclamations) enacted by HPR, which is the
supreme legislative organ of the federal government [Art 50 (3) of the
Constitution it are superior to all other laws made by the federal
authorities.
the FDRE Constitution confers the CoM’s the power to proclaim a
decree of emergency [Art. 93 of the Constitution].
the status of the decrees of emergency is exceptions,because, the
Constitution empowers the Council of Ministers to suspend even
democratic and political rights
 derivative legislation; legislation that are issued at the federal level
including regulations and directives. The CoM and each ministry issue
these legislation.
 the CoM derives its power to make the regulations from the supreme
legislator i.e. the HPR through the primary legislation.
 Consequently, the position of the regulations and directives on the
ladder of hierarchy is below the proclamations and decrees.
However, in so far as the regulations are passed by the Council of
Ministers, they are higher in hierarchy than the directives passed by each
ministry.
 Hierarchy of State Laws: the laws that are enacted by the State Councils
include the state constitution and other state laws.
 The forms of legislation existing in the states cover: state statutes,
decrees, regulations, and directives
Hierarchy of laws Cont’d

Laws

Constitution

Proclamation

Regulation

directive
 Chapter VI:- Repeal of Law
• What it mean
• By which organ the law can be repealed
• What are modalities of repeal- How the empowered organ can repeal the law
• What is effect of law
• How it differ from expiry of law, nullification of law.
 Repeal of law Cont’d
repeal of law means:-
 making the law no longer have a legal effect.
 an abrogation of an existing law by legislative act.
 the opposite process of making a law that is delegalizing a certain normative
standard that had been part and parcel of the law of the land.
law could be perpetual until it is repealed- not abrogated by elapse of time or
by non-user.
expiry of law automatically terminates a legal transactions. However, the rights
or obligations may continue notwithstanding the expiry of a law if their nature
determines. Yet, disuse of a law does not wither away it.
 Repeal of law Cont’d
• Organ empowered to repeal law:
The principle is that a body that has a power to enact a law has also a
power to repeal the samePower to enact carries with it power to repeal
Power to enact carries with it power to repeal
the general rule is that :-
1. the power of a legislative body to repeal a law is co-extensive with its
power to enact such a law and
2. a legislature which has no power to enact a law on a particular subject
matter has also no power to repeal the same.
 Repeal of law Cont’d
How the empowered organ can repeal the law:-
• Modality of repeal of law:-repeal of laws may be:-
1. Express repeal of law or
2. Implied repeal of law.
 Express repeal of law
 where the law is replaced by a law by specific declaration to that effect.
 where the new repealing statute refers to the whole or a part of this former statute
and withdraws its obligatory force and thereby denies it further effect as law.
 the reference it makes to the former law must be clear and exact in relation to
what extent or proportion it is no longer operative
 Substitution of a provision combines repeal of earlier provision and insertion of
new provision
 Express repeal can be:-
1. Total repeal:-
2. Partial repeal:- only portion of law
3. Extent clause repeal- not withdraw the obligatory force of the substance of the
former law but only restricts the scope of applicability of the former law.
 Implied/Tacit repeal of law
• is repeal by irreconcilable conflict between an old law and a recent one.
• b/c- theory that the legislature while enacting a law has a complete knowledge of the
existing laws on the same subject matter, and thus, presumption is that it repeals the
previous law.
• Test :- used to determine whether a given law is repealed impliedly by the
legislature.
1. Whether there is a direct conflict between the two provisions;
2. Whether the legislature intended to lay down an exhaustive Code in respect of the
subject-matter replacing the earlier law;
3. Whether the two laws occupy the same field.
 Implied/Tacit repeal of law
The principle is that the new law prevails over the old law. Thus, if the new law is
inconsistent with the old law, the old law is considered as repealed, because one of
the principles making a law is to make a change in the law.
1. Prior particular law and later general law:- is not considered as implied repeal
b/c- reconciliation is normally possible b/n a prior particular & a later general act
a& so the particular act is construed as an exception or qualification of the general
act.
2. Prior General Law and Later Particular Law:- the latter particular law may
have the effect to amend or repeal the prior general law on the same subject
matter.
 The effect of repeal of law
1. it consider repealed law as if it had never been enacted. Thus, no obligation &
right arise out of the repealed law. But, proceeding for enforcement of acquired
right is possible.
2. if one law is repealed by a 2nd which again is repealed by a 3rd the 1st law is not
revived unless the 3rd law makes an express provision to that effect.- revival issue.
3. effect of repeal of legislation on subordinate ones:-
As a consequence of the general principle that a statute after its repeal is as
completely effected for the statute book as if it had never been enacted, subordinate
legislation made under a statute ceases to have effect after repeal of the statute.
This result can be avoided by insertion of saving clauses providing the contrary.
 Repeal of law vs. Expiry & nullification of law
• Expiry of law is for temporary law
• Nullification of law- act of making the law void due to its contradiction with higher
law.
• eg. In Ethiopia, if the law contradicts the FDRE constitution, it will be nullified by
the House of Federation.
Does disuse/obsolescence make Law Non-obligatory?
• the disuse of a law can not make it repealed because it is the legislative body that
must repeal the law, not the subordinates.
• A law subsists indefinitely as long as its provisions have not been regularly repealed.
Recourse may always be had to it to obtain its execution.
 Chapter VII- Interpretation of law
Specific objectives of this session:- the students should able to:-
1. Define
2. List, compare and contrast types of interpretation of law
3. Identify canon/rules of interpretation of law
4. Identify the organ which is empowered to interpret FDRE
constitution and other legislations in Ethiopia
 Interpretation of law cont’d
Interpretation of laws:-
• is the search for true meaning of a law where it is not clear.
• process of giving meaning to the phraseology of the law- search for the soul of the
law
Why for interpretation?
as rule, all laws must be sufficiently clear and reasonably formulated to address their
purposes. However, this may not be achieved all the time. Due to:-
1. Inherent nature of language:- unclearity of words in language of law-vague/ambigius
2. to cope up with new, unforeseen, unintended matters; human knowledge are very
much limited, thus, the lawmakers cannot enact a law that will regulate every
microscopically detail of human relation. Thus, total/partial silence of law
 Judge would be guilty of a denial of justice. Eg. refusal to pass judgment might be
charged as a breach of official duty under Article 420 Criminal Code.
the legislature usually uses general words deliberately so as to
enable certain legal instrument to accommodate new
circumstances that have not been contemplated by the legislature
at the time of law making.
The vagueness created by the legislature leads to more room for
interpretation there by enabling the court to handle new
circumstances within the purview of the general policy
consideration of the statutes.
 Types of interpretation of law

Depending on the technique of the interpretation

• Grammatical
• Logical
 Grammatical: implies that the meaning of the law is to be sought in the actual
words used in it, which are to be understood in their ordinary and natural
meaning.
 When there is ambiguity in the language employed by the statute
 Logical : is that which departs from the letter of the law and seeks elsewhere
or some other or more satisfactory evidence of the intention of the legislature.
 Types of interpretation of law
• 3 types of interpretation of law based on who interpret the law:-
1. Judicial interpretation:-interpretation may be made by judges while they are trying
to solve disputes in the cases. In court when, in order to decide a case, it applies a law
whose meaning is not clear. Its effect:- precedent- if given by FSC cassation.
2. Doctrinal interpretation:-by when scholars interpret laws when they write articles,
books or giving lectures on laws. made in books, in reviews, in the classroom. no
other use than to influence court decisions.
3. Legislative interpretation:- the legislature itself gives meaning to laws through the
means of legislation. Legislative interpretation is that made by the lawmaker. In
ancient France, the king alone could interpret his ordinances, thus if law is not clear
the shall take it to king, the court refrain from it. But, currently:
 The definitional part of the law define certain terms.
 appeals are no longer permitted, as a judge may not refuse to pass judgment on the
pretext that the law is silent, obscure or insufficient.
 Rules of interpretation of law
1. The golden Rule of Interpretation:- the main purpose of judicial interpretation is
to ascertain the intention of the legislature.
if the words of the statute are in themselves precise and unambiguous. The words
themselves alone do, in such cases, best declare the intention of the law-giver
If needed- grammatical & ordinary sense of word- no to expound words.
Its also called grammatical interpretation.
grammatical or literal interpretation provides that the literal ordinary and natural
meaning of the law has to be applied as far as it is clear even if the law may seem
injustice
 Rules of interpretation of law

2. The Ejusdem Generis Rule:- restricts the meaning of general words to

refer to specific things or matters of same kind a sweeping clause in a
statute which says “all other articles whatsoever” may be interpreted to
mean only articles of the same genus or species as those expressly dealt with
by the statue.
Eg. Alcoholic drink like beer, wine are banned from advisement by
broadcasting media. The issue whether araqe, tella is prohibited,….
i.e. law providing for a general class allows inclusion of similar things.
 Rules of interpretation of law
3. The Mischief Rule:- When the language of the statute in question cannot
determine the true intention of the legislature the court may consider the historical
background underlying the statute, .i.e. the circumstances under which the Bill
was introduced and it finally became law.
The law is to be interpreted in such a way as to suppress the mischief and advance
the remedy.
• E.g. The act do not make any reference to bicyles, But the purpose of the act
was to prevent people from using any for of transport on the public highway
while in the state of intoxication.
• The bicycles was clearly a form of transport and there for the act is applicable
 Rules of interpretation of law cont’d
4. Logical Interpretation:- If the words used in the statute are ambiguous and the true
intention of the legislature is doubtful, logical interpretation may be resorted to in
order to prevent the law from being misused.
(1)when words taken in their natural sense lead to some absurdity, or
(2) some clause of the statute is inconsistent with, or repugnant to the enactment
in question.
Eg. a law provides that any person who inflicts injury of another is liable to pay
damages. physician may cause injury to the patients when making operations.
Making them liable is absurd & not legislator intention.
 Rules of interpretation of law

• 5. Liberal Interpretation:- When litra-legis suffers from ambiguity, liberal interpretation may
be resorted to. Liberal interpretation may be either restrictive or extensive.
• The restrictive interpretation is applied to penal and fiscal statutes. These statutes impose
restraints on the liberty of a person or on enjoyment of property. In such cases, Courts are not
allowed to interpret these statutes, in a manner which impose a greater burden on the subject
than warranted by literal meaning of the statute.
• In extensive interpretation, on the other hand, the words are given a wider meaning.

6. Historical Interpretation:- to get intention of the lawmaker- courts may consider the historical
circumstance attending the local enactment. But historical interpretation cannot be stretched too
far
referring to law making process:- debate of the parliament(minute), 1 st draft and modification,
why it was..
 Inconsistency or contradiction in the law
1. Firstly, the hierarchical position of the two laws must be seen the rule applicable is
the higher law prevails over the lower law. In other words, it must be the higher law
that should be applicable and the lower will have no effect for it violates the higher
law.
2. Secondly, the two provisions may exist in the same hierarchical position. In such a
situation their effective date i.e. the date on which they entered in to force must be
considered as a reference. Because, the rule is that the later law prevails over the
former law (exposterior derogate priori).In other words, the new or recent law must
be applicable and the old law will have no effect.
3. Finally, both the contradicting provisions may sometimes exist in the same law like for
instance in the same code which implies that neither hierarchy nor effective date can be
used to decide the issue.
In such we should refer to the nature of the laws whether one is general and the other is
special rule.If one is in the general rules and the other is in the special rules lex special
derogate generalis (i.e. special Rules prevail over general rules).
Organ empowered to interpret law in Ethiopia
• Constitutional Interpretation
• Constitutional interpretation envisages a situation where somebody tries to “effectuate the intent of
those individuals who drafted the constitution and the electorate which ratified it.
Constitutional language is always the product of group effort and compromise and may be deliberately
chosen to be bridge over difference of opinion.
• On top of the factors for interpretation of statutes, constitutional interpretation has its own peculiar
character.
 Such peculiarity has to do with the very nature of constitution
 and the purpose for which the it is enacted
 In general, some jurisdictions give the power to interpret the constitution to courts or other political
bodies
 Some jurisdiction empowered their ordinary courts or their special constitutional courts to interpret
constitutional issues.
• all courts, in USA, Canada, India, Ireland, and Japan
• Constitutional court:- German, Italy
 Organ empowered to interpret law in Ethiopia
• The FDRE Constitution empowers the House of Federation to interpret the constitution
[Art. 62(1) and 83(1)]. The HF is helped by a constitutional inquiry
• There are debate on it:-
1. Proponents argue Constitution is political document & made by representatives of
NNPs, thus it should be interpreted by representatives of NNPS. Being assisted by
CCI.
2. Oppositions argue its Improper b/c:- HOF is political organ & lacks independence.-
typically State Council members and sometimes Regional Chief Executives. A political
body, which represents the various interests of the ethnic groups, can’t be impartial
body, & resolve sensitive disputes between ethnic groups., It fail to protect the rights
of minority groups in constitutional disputes due to its majoritarian make-up. HOF is
inefficient in constitutional review b/c of its part-time status. w/c meet twice per year.