The Fetha Nagast and the 1931 Constitution: Modernisation by Legal Form

Thesis

Before 1931, Ethiopia had law but no constitution in the modern sense. It had the Fetha Nagast — the Law of the Kings, a Christian-Roman legal compilation translated from Arabic into Ge’ez in the fifteenth or sixteenth century — which set out the duties of the sovereign, the rights of the church, and the rules of civil life under a framework that derived authority from divine sanction and apostolic tradition rather than from popular consent.¹ It had customary law administered by local elders, the yeneged sera of Oromo gada, the kallu arbitration of various pastoral peoples, the sharia courts of Muslim communities — a plural legal order layered under imperial sovereignty.² What it did not have was a single written text defining the structure of the state and the relationship between ruler and ruled in the language of modern constitutional law. The 1931 Constitution of Haile Selassie I was the first such text. It was promulgated not because the sovereign wished to be constrained but because he wished to be modern — and modernity, in 1931, required a constitution. The instrument that resulted bore the form of a constitution and contained no substantive constraint on imperial power. The pattern that would define every subsequent Ethiopian constitution begins here.

The Fetha Nagast

The Fetha Nagast is not a constitution and was never intended to be read as one. It is a compilation of ecclesiastical and civil law, drawn from the Coptic-Egyptian canon and Roman legal sources, organised into chapters on family law, property, criminal offences, and the duties of various social orders.³ Its constitutional significance for this series lies in two facts. First, it provided a legitimating framework for imperial authority that was indigenous, written, and respected — emperors swore by it, judges cited it, and disputes were decided under it for centuries — which means Ethiopia was not, before 1931, a lawless state. Second, the authority the Fetha Nagast conferred on the emperor was largely unconstrained by it. The text required the king to rule justly and to defend the church, but it provided no institutional mechanism by which an unjust king could be removed or his decisions reviewed. The constraint was moral and theological, not structural.

This is the key point. Ethiopia entered the modern constitutional era with a long tradition of law — administered, respected, justiciable in its own categories — but with no tradition of constitutionalism in the Madisonian sense of structural constraint on the sovereign. The transition that should have happened in the twentieth century was the addition of institutional constraint to the existing legal tradition. What happened instead was the replacement of the indigenous legal tradition by a Western constitutional form that performed the symbolic functions of legitimation without delivering the substantive function of restraint. The Fetha Nagast contained no separation of powers; the 1931 Constitution contained one on paper and not in operation. The exchange was loss without gain.

The 1931 Constitution

The 1931 Constitution was promulgated by Emperor Haile Selassie I on 16 July 1931, less than a year after his coronation.⁴ It was the personal project of the emperor and a small group of advisors, principal among them the French-educated Tafari Makonnen — Haile Selassie’s pre-imperial name — and a handful of Ethiopian and foreign jurists. The model was explicitly the Meiji Constitution of Japan of 1889, chosen because Meiji Japan was understood as the great non-Western example of successful modernization-from-above that preserved monarchical sovereignty while adopting modern legal forms.⁵ The choice tells us almost everything we need to know about what the document was for.

The text contained 55 articles in seven chapters. It declared the empire’s sovereignty (Articles 1–4), the rights and prerogatives of the emperor (Articles 5–17), the duties of subjects (Articles 18–29), and the structure of a bicameral parliament — a Chamber of Senate appointed by the emperor and a Chamber of Deputies indirectly elected by local notables (Articles 30–50).⁶ On its face it was the standard kit of a modernizing monarchy.

What the text did not contain is more revealing than what it did. There was no provision for judicial review. There was no enumerated bill of rights enforceable against the emperor. The parliament’s legislative power was advisory — Article 34 made clear that all legislation required imperial sanction. The Chamber of Deputies was elected by appointed notables, not by direct citizen suffrage, and its competence was limited to matters the emperor referred to it. The emperor retained the power to make law by decree, to declare war, to make treaties, to appoint and dismiss ministers, and to dissolve the parliament at his pleasure. The constitution did not bind the emperor; it described the emperor as binding. Margery Perham, writing in 1948, characterised it as “a charter of imperial absolutism wearing modern legal clothes.”⁷

Why this matters

Three features of the 1931 Constitution set the pattern that subsequent Ethiopian constitutions would replicate.

First, the document was a top-down legitimating instrument, not a bottom-up constraint. It was drafted by the sovereign for the sovereign’s purposes — primarily international, to demonstrate to European powers that Ethiopia was a modern state worthy of full sovereign recognition in an era when colonialism was justified by claims that African polities lacked modern government.⁸ The constitution was useful evidence in Geneva, at the League of Nations, and in foreign capitals. It was not useful to Ethiopian subjects as a means of vindicating rights against the state, because it conferred no such rights against the state.

Second, the form was Western and the substance was imperial. The 1931 Constitution adopted the structural vocabulary of European constitutional monarchies — parliament, ministers, articles, chapters — without adopting any of the substantive constraints those institutions had developed over centuries of European struggle between crown and parliament, crown and judiciary, crown and church. The form-without-substance pattern is not a peculiarity of the 1931 instrument; it is its defining feature.

Third, the legal positivism implicit in the document — what the constitution says is law — was paired with an absence of the institutional culture that gives positive law its constraining force. A constitution is a piece of paper. It becomes a binding constraint only when judges, legislators, civil servants, and citizens treat it as one. The 1931 Constitution had no judiciary capable of treating it as one, because the judiciary served at the emperor’s pleasure; no legislature capable of treating it as one, because the legislature was appointed by the emperor; and no civic culture capable of treating it as one, because political organisation outside the imperial framework was forbidden.⁹ The text could not constrain because the institutions that would have made it constrain did not exist.

The Italian interregnum and after

The 1931 Constitution was suspended by the Italian occupation of 1936–1941. During the occupation, Ethiopia was incorporated into Italian East Africa and governed under Italian colonial law, with local administration delegated to selected Ethiopian collaborators and to remnants of the imperial bureaucracy.¹⁰ When Haile Selassie returned in May 1941, he restored the 1931 Constitution by decree, with minor amendments.¹¹ The substantive operation of the document was unchanged: parliament continued to be advisory, the emperor continued to rule by decree, the judiciary continued to be his judiciary.

What changed in the post-war period was the international context. The Atlantic Charter of 1941, the United Nations Charter of 1945, the Universal Declaration of Human Rights of 1948, and the wave of decolonisation that followed put pressure on monarchical absolutisms everywhere to either adopt the forms of constitutional government or face delegitimation. Ethiopia’s federation with Eritrea in 1952, under a UN resolution that required a federal constitutional structure within Ethiopia, raised the formal stakes further.¹² By the early 1950s it was clear to Haile Selassie and his advisors that the 1931 Constitution would have to be replaced by something that more closely resembled what mid-twentieth-century international opinion expected a constitution to be.

The result was the 1955 Revised Constitution, which is the subject of the next article.

Steelman of the opposing reading

The defenders of the 1931 Constitution — and there were some, including the imperial intellectual tradition that survives in contemporary monarchist circles — make two arguments worth taking seriously.

The first is that the 1931 Constitution was, for its time and place, a remarkable act of state-building. It established a written legal framework for the modern Ethiopian state at a moment when most African polities had no such framework, and it was the act of an indigenous African sovereign rather than of a colonial power. To measure it against the Madisonian template is anachronistic: no monarchical constitution of the 1930s, in Europe or elsewhere, would pass that test.¹³ This is partly right. The 1931 Constitution should not be judged primarily as a failure to be Madisonian. It should be judged as the first in a series of Ethiopian constitutional instruments that share a structural feature — form without substantive constraint on the sovereign — and as the document that established the template the subsequent four would follow.

The second is that the 1931 Constitution did, in fact, accomplish a real institutional good: it codified imperial law, created a parliament that even in its advisory form began to develop a culture of deliberation, and established the principle that the Ethiopian state was governed by written rules rather than purely by the emperor’s word.¹⁴ This is also partly right. The 1931 Constitution was a step forward from what preceded it in the sense that it made imperial decisions visible, reviewable in principle, and challengeable in form. The step it did not take — toward making imperial decisions constrained in fact — is the step Ethiopia has still not taken, ninety-five years later.

Multi-causal accounting

The failure of the 1931 Constitution to function as a binding constraint is not attributable solely to imperial design. Several other factors contributed. Ethiopian society in 1931 was overwhelmingly rural, illiterate, and organised around local hierarchies of clergy, landlords, and customary authority — there was no organised middle class with reason to demand institutional constraint on the sovereign.¹⁵ The international context rewarded the form of constitutionalism more than its substance. The legal-positivist tradition that the constitution borrowed from Europe was itself, in continental Europe of the 1920s and 1930s, in retreat under the pressure of authoritarian movements. None of these contextual factors changes the conclusion that the 1931 Constitution did not constrain; they explain why it did not.

What the article establishes

The 1931 Constitution is the founding act of the Ethiopian constitutional tradition. It established that an Ethiopian constitution would be a document drafted by the sovereign for the sovereign’s purposes, modelled on a foreign template, formally complete, and substantively non-binding. The 1955 Revised Constitution would refine the form. The 1987 PDRE Constitution would change the ideological vocabulary. The 1995 FDRE Constitution would change the structure to federalism. None of them would change the underlying relationship between the text and the sovereign. The constitution would describe the state. The state would not be constrained by it.

The disease, in other words, did not begin in 1974 with the suspension of the 1955 Constitution. It began in 1931 with the promulgation of the document that the 1955 would revise. The fall of the king did not produce the constitutional pathology Ethiopia carries today; it inherited it.

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References

Footnotes

1. Abba Paulos Tzadua, trans., The Fetha Nagast: The Law of the Kings (Addis Ababa: Haile Selassie I University, 1968), introduction. On dating and transmission, see Peter L. Strauss, The Fetha Nagast: A Study (Addis Ababa University, 1968), and Aberra Jembere, An Introduction to the Legal History of Ethiopia 1434–1974 (Münster: LIT Verlag, 2000), 12–28. ↩

2. Donald N. Levine, Greater Ethiopia: The Evolution of a Multiethnic Society, 2nd ed. (Chicago: University of Chicago Press, 2000), 41–55, on legal pluralism in pre-modern Ethiopia. On gada institutions, see Asmarom Legesse, Gada: Three Approaches to the Study of African Society (New York: Free Press, 1973). ↩

3. Tzadua, Fetha Nagast, structure and contents. ↩

4. Constitution of Ethiopia, 16 July 1931, Negarit Gazeta No. 1, Year 1. ↩

5. Bahru Zewde, A History of Modern Ethiopia, 110–11; Margery Perham, The Government of Ethiopia, 84–88. The Meiji influence is acknowledged in contemporary accounts and by later scholars. ↩

6. The 1931 Constitution, articles as cited; see Perham, Government of Ethiopia, 84–88, for the structural summary. ↩

7. Perham, Government of Ethiopia, 86 (paraphrased). ↩

8. On the international purpose of the 1931 Constitution, see Bahru Zewde, A History of Modern Ethiopia, 110–11, and Harold Marcus, A History of Ethiopia (Berkeley: University of California Press, 1994), 121–124. ↩

9. The pre-1974 imperial state did not permit organised political parties outside imperial sanction. See Christopher Clapham, Haile-Selassie’s Government (London: Longmans, 1969), 145–158. ↩

10. Alberto Sbacchi, Ethiopia Under Mussolini: Fascism and the Colonial Experience (London: Zed Books, 1985); Haile M. Larebo, The Building of an Empire: Italian Land Policy and Practice in Ethiopia (Trenton: Red Sea Press, 2006). ↩

11. Bahru Zewde, A History of Modern Ethiopia, 178–80. ↩

12. UN General Assembly Resolution 390 (V), “Eritrea: Report of the United Nations Commission for Eritrea,” 2 December 1950, which established the federation and required Ethiopia to revise its constitution to accommodate Eritrean autonomy. See Tekeste Negash, Eritrea and Ethiopia: The Federal Experience (Uppsala: Nordic Africa Institute, 1997). ↩

13. This is a fair contextualizing point made by several scholars sympathetic to the imperial tradition, e.g. Levine, Greater Ethiopia, and the broader historiographical defence of Haile Selassie’s modernization program. ↩

14. Clapham, Haile-Selassie’s Government, 24–28, discusses the institution-building dimension. ↩

15. On the social composition of early-twentieth-century Ethiopia, see Bahru Zewde, A History of Modern Ethiopia, ch. 1, and John Markakis, Ethiopia: Anatomy of a Traditional Polity (Oxford: Clarendon Press, 1974). ↩