Introduction: Beyond the Text of the Law
Statutory interpretation is a complex process that often requires courts to look beyond the literal text of a statute to ascertain its true meaning and legislative intent. While the primary focus remains on the internal coherence and plain meaning of the legal text, situations arise where ambiguity, gaps, or unforeseen circumstances necessitate recourse to external sources. These external sources, often referred to as “extrinsic aids,” can provide valuable context, historical background, and comparative insights that assist courts in crafting the most appropriate legal interpretation. This chapter explores the increasing reliance on extrinsic aids by courts, particularly the Federal Supreme Court Cassation Bench in Ethiopia, and examines the various types of such aids that have gained widespread acceptance, including comparative law, academic commentary, and international agreements.
The willingness and practice of courts in various countries to utilize extrinsic aids have shown a growing trend over time. Among the widely accepted references are legislative history, legislative evolution, international agreements, laws and court decisions of other countries, and scholarly works.
The Federal Supreme Court Cassation Bench in Ethiopia has rendered numerous decisions that have been supported by references to these extrinsic aids. However, it is important to note that the manner in which these aids have been utilized suggests their primary function has been supportive, serving as reinforcing reasons rather than direct contributions to resolving contentious legal issues. While it is not possible to include all decisions, a partial overview of their application is presented below.
The Practice and Experience of Other Countries (Comparative Law)
Comparative law, the study of differences and similarities between the laws of different countries, serves as a valuable extrinsic aid. Ethiopia’s codified laws bear the imprint of various foreign legal systems. It is often not difficult to identify the sources of specific provisions, for instance, in contract law or the law of extra-contractual liability. In challenging situations, therefore, referencing the legal systems and court decisions of the countries from which the law was derived can significantly enrich Ethiopia’s legal interpretation. While there may not be many cases that have undergone deep scrutiny at this level, general references to “other countries,” “many countries,” “countries with developed legal systems,” etc., are widely observed.
Here are examples from two decisions illustrating this practice:
- Cassation File No. 23632, Volume 5: “As is known, there cannot be a person who should be given more priority than parents in protecting the rights and safety of their children. Since the legislator has accepted this as a principle, the practice of appointing a living father or mother as the guardian and administrator of their minor child is known to be the experience of many countries, including our own.”
- Cassation File No. 14981, Volume 12: “Although there is no direct applicable provision in our country’s independent law of evidence on this matter, it can be understood from the principles of evidence law accepted in other countries that expert opinion is not self-sufficient or irrefutable by contrary evidence; rather, its competence and reliability should be weighed in conjunction with other evidence.”
In two other files, specific countries, Israel and Russia, are explicitly mentioned:
- Cassation File No. 112091, Volume 18: “To control and prevent acts of betrayal committed by members of political organizations during elections and after being elected, other countries with developed democratic systems, such as Israel, have enacted and implemented prohibitive legal provisions in their constitutions and other legal frameworks that impose accountability on those who commit such acts.”
- Cassation File No. 44561, Volume 10: “Many countries, for example Russia, explicitly list properties and rights that can be transferred from the deceased to heirs through inheritance.”
These examples demonstrate the Cassation Bench’s willingness to draw upon the experiences and legal principles of other jurisdictions, particularly when domestic law is silent or requires broader contextual understanding. While often used to support existing interpretations, this comparative approach enriches the court’s reasoning and aligns Ethiopian jurisprudence with global legal trends.
Scholarly Works (Academic Commentary)
Academic commentary, found in legal textbooks, articles, and treatises, provides in-depth analysis and critical perspectives on legal principles. While not binding, these works can significantly influence judicial reasoning by offering systematic interpretations, identifying ambiguities, and proposing solutions.
In three Cassation Bench files, Professor George Chichinovich’s book, “The Ethiopian Law of Compensation for Damages,” was cited as a source concerning the objectives of extra-contractual liability laws. In all three files, Professor George Chichinovich’s work was cited on the same point. Therefore, it suffices to look at the description in Cassation File No. 35034, Volume 9:
“The provisions laid down in our Civil Code regarding extra-contractual liability establish a system for compensating injured persons. George Chichinovich, who was a lecturer in the Law Department of the former Haile Selassie I University and contributed explanatory texts on these provisions, stated that the primary objectives of these provisions are to compensate for damages and to deter wrongful conduct.”
In all three files, the scholar’s work served no more than to provide background understanding for the decision. However, one academic work that directly contributed to a contentious legal issue and gained recognition as a legal interpretation is Robert Allen Sedler’s book, “Ethiopian Civil Procedure.” The definition of “cause of action” provided by Sedler was fully accepted by the Cassation Bench. As the court indicated when citing Sedler’s work as a source in Cassation File No. 16273, Volume 2:
“Robert Allen Sedler, in his book titled ‘Ethiopian Civil Procedure,’ stated that a ’cause of action’ can be said to exist if, should the matter presented in the lawsuit be proven, the law would allow the plaintiff to obtain the relief sought, thus providing an affirmative answer to the question.”
This example highlights the significant influence academic scholarship can have, particularly when it offers clear and compelling interpretations that fill gaps or provide authoritative definitions within the legal framework.
International Agreements (International Law)
International agreements, treaties, and conventions play an increasingly important role in domestic legal systems, especially in countries that adopt a monist or dualist approach that allows for the incorporation of international law into national law. In Ethiopia, the place of international agreements within the legal system, particularly in courts, has historically been limited. Among the reasons for their limited applicability are the lack of translation from English to Amharic and other regional working languages, as well as their general inaccessibility. Furthermore, the case backlog in lower courts, combined with the aforementioned reasons, has diminished the practice of utilizing international agreements in the decision-making process.
However, as the country’s highest judicial body, the Cassation Bench is expected to thoroughly examine legal issues that arise in fundamental cases, considering not only their national but also their international dimensions. This makes international agreements receive special attention from the Cassation Bench. Relatively, the problems mentioned above are less pronounced in the Cassation Bench. Therefore, it is not surprising that international agreements, which are rarely seen in lower court decisions, are occasionally cited by the Cassation Bench.
Regarding the role of international agreements in the process of legal interpretation, the Cassation Bench, in its commentary in Cassation File No. 44101, Volume 10, emphasized that international agreements ratified by Ethiopia are part of the country’s law, as stipulated in Article 9(4) of the FDRE Constitution. Furthermore, fundamental rights and freedoms provisions extensively covered in the Constitution must be interpreted in a manner consistent with international human rights laws and agreements ratified by the country. However, the method for resolving inconsistencies (between domestic and international law) has not yet received a definitive answer.
The international agreements frequently cited by the Cassation Bench are limited in number. For example:
- International Covenant on Civil and Political Rights
- African Charter on Human and Peoples’ Rights
- African Charter on the Rights and Welfare of the Child
- Convention on the Rights of the Child
- The Universal Declaration of Human Rights
In addition to these, the following international agreements have been directly applied to resolve contentious legal issues:
- Universal Postal Union Convention
- United Nations Charter
The increasing, albeit still limited, use of international agreements by the Cassation Bench signifies a growing recognition of Ethiopia’s international legal obligations and the importance of aligning domestic jurisprudence with global standards, especially in human rights.
Conclusion: Towards a More Holistic Interpretation
The use of extrinsic aids in legal interpretation by the Federal Supreme Court Cassation Bench in Ethiopia reflects a pragmatic approach to navigating the complexities of law. While these aids primarily serve to support and reinforce existing interpretations, their increasing presence indicates a move towards a more holistic and context-aware judicial process. Comparative law offers insights from other jurisdictions, academic commentary provides scholarly analysis, and international agreements ensure adherence to global norms.
For these extrinsic aids to fully realize their potential, continued efforts are needed to improve their accessibility, translation, and integration into the broader legal education and practice. As the Ethiopian legal system continues to mature, a more systematic and explicit engagement with these external sources will undoubtedly contribute to richer, more robust, and globally aligned legal interpretations, ultimately enhancing the quality of justice administered in the country.