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A WESTERNIZING AFRICAN STATE AND THE LAWS OF ITS HETEROGENEOUS SOCIETY: TOWARDS THE RAISON D'ÊTRE OF THE ETHIOPIAN LEGAL PLURALISM PIVOTING TRADITION OVER MODERNITY [Abstract ID: 0703-12]
There was no defiant African state that responded to the dangers and opportunities from modern Europe burdened with socio-economic, cultural and religious fragmentation which has to nurtured and transformed at the same time. Since the first half of the 20th century, Ethiopia was on its course introducing western legal frameworks to cope with the needs of capitalist penetration and state centralisation. This happened at a time when the age old monarchy was unwilling to relinquish its legal and political prerogatives and unable to superimpose a given legal system on its society dotted with varying ethno-religious and economic groups whose everyday life was at best managed by customary and religious laws. Serving the needs and wants of the urban and rural people while accommodating the interests of the secular and ecclesiastical establishment required reconciling western legal values with indigenous sense of justice. From this, the plurality of the Ethiopian legal system that was permeated by the religio-secular laws of the Fetha Negest, customary laws of diverse ethnic groups, Islamic law and modern legal jurisprudence ensued. This legal plurality was extant in substantive and procedural aspects of justice administration where the cohabitation of tradition and modernity was characterised by overlay, accommodation, assimilation, separation and domination.Hence, this paper argues against the conventional wisdom that the modernization of Ethiopia’s legal system was a mere transplantation of the European legal system at the expense of indigenous legal systems. Based on the study of archives, legal documents, court cases and published researches reveal that the ideal and practised aspects of rule of law. This paper argues that both at the level of legal philosophy (surmised from lived practice) and structural setup, the precepts of indigenous legal systems prevailed over and above the standing of the western legal system. While this was the defining mark of legal pluralism during the reign of Emperor Haile Selassie I, it has continued in various guises until the present. The paper concludes, from historical point of view, that the Ethiopian legal pluralism is attuned to legal realism rather than the western tenants of legal idealism. It is further argued that a legal pluralism which leans itself to legal realism was/is necessitated by Ethiopia’s position vis-à-vis the demands of internal and international conditions as well as its need to balance tradition and modernity.