2.7 Law As a Source of Conflict: The Ethiopian Experience
The study is geared towards establishing the linkage between law and conflict. Analyses and interpretations of pieces of legislations of public laws of Ethiopia have been made. Historical and sociological findings have also been used, as secondary sources. The Ethiopian law, being chaotic and eclectic must have been a fertile breeding ground for germination and escalation of conflicts. This is true on both the legal theory and jurisprudential level and constitutional plain. From the point of view of sociology of law, the function of a legal system is to distribute and maintain allocation of values that society feels to be right. Refined at most, the function can be characterized as the pursuit of socially or ethically determined justice.
The conscious desire and effort of people to develop a conception of law should be by recognizing the centrality of diversity and conflict in social life. This is discernible wherever and whenever law is provisionally taken as a process of formally articulating normative expectations. The greater the magnitude of diversity of perception and evaluations is, the greater will be the variability of perception of justice. To state that people seek to acquire and use resources to satisfy their own interest is, of course, to say that they want to have and exercise power. Power is here understood as having control of resources, the exercise of which means the mobilization of efforts to increase the probability of reaching on acceptable resolution of actual or potential conflicts. The reality suggests then that law is a set of resources for which people contend to promote their own ideas and interests.
Law has also the function of allocating social, political and economic resources. The different relationships established among various combinations of proprietary relationships, for instance, are not only reflections of the differences in the socio-economic system, but they are also institutions or mechanics by which the said system is made to operate. An institution of law may have institutive, consequential and terminative rules.
One other aspect of law, as a resource, may quite appropriately relate to a question of integration. Rules, laws and legal systems are all resources whose control and exercise bestow power on the actor. In this respect, five modalities have been identified so far. These are the control of the means of direct physical violence, i.e., the army, police, security forces, etc.; production, allocation and other forms of use of material resources, i.e., economic power; decision-making processes, i.e., political power; definition of and access to knowledge, beliefs, values (ideological power); and human attention and living-time, i.e., diversionary power.
The particular advantage that may be derived from the conception of law as power is that it facilitates the analysis of the processes by which normative declarations are given inter-group significance. When norms are thus articulated the conditions when and how conflicts many arise by the control or mobilization of legal resources can be formulated into a theory of law of conflict management. In this respect, the writer has postulated two major propositions. On the horizon of the legal system, potential and actual conflicts of various nature and degree must have emanated and could have been properly managed by the use of a legal system informed of both sociology of law and jurisprudence. A legal system, whose pattern of linkage imparts unity of its entire component parts can be formulated based on legitimacy, validation and appropriate institutions with the corresponding structural design, which could, by social engineering, be curved out of the historical, anthropological and sociological findings of the Ethiopian society.
On the constitutional level, in the absence of integrative economic markets, information, education systems and consensus arrangement, i.e., devolution of single-party-led politicised ethnicity based on symmetrical allocation of power in a parliamentary form of government can bequeath conflicts on all levels in the absence of firmly established formal and informal machinery of control, i.e., constitutionalism.
Developing an umbrella of legal system within the framework of deep pluralism, lawyers, sociologist and anthologists have to work out the ways and means of narrowing the gap between state-enacted-laws and enduring customary laws. In the mean time, two levels of legal regimes have to continue in operation: state-enacted-laws, on one hand, and customary laws at local or state level, on the other. On top of all, positive law backed by the international community, Christianity-Islam and enduring traditional morality (as evidenced by councils of elders and findings of social scientists) must form the backbone of the Ethiopian legal system.
In view of the parliamentary democracy form of government, we are presently having the organic and close relationship between the representative body (The House of Peoples' Representatives) and the executive. Such formal organs of control as the Judiciary, Ombudsman, Human Right Commission and even the Auditor General should be made accountable to the House of Federation or to an enhanced Office of the President. This helps to provide an effective check and balance system between and among the legislature and the executive as bridged by majority seat, the Prime Minister and the Council of Ministers, on one hand, and the Judiciary, on the other, as shown about, thus strengthened by the newly formed organic relation and a shift in accountability. All these require a through study by the concerned professionals, officials and academics with a view to effect smooth and yet structural change at all levels, i.e., in jurisprudential, constitutional and administrative spheres.
The constitutional experiment referred to above should be allowed to give birth to good governance by and through conscious and gradual adjustment and innovation than to social rapture, the recurrence of which has exasperated most of us.