¹ Concentrating on law and economics implies also attempting to gauge to what extent a methodological tool of Western law can be used in concrete terms to understand legal systems very different from those in which it has been applied so far. See Dias, C.J., Luckham, R., Lynch, D.O., Paul, J.C.N. (eds.), Lawyers in the Third World: Comparative and Developmental Perspective, Uppsala, 1981.Google Scholar

² The pioneer of this concept was Sacco, R., in Introduzione al Diritto Private Somalo, 1973.Google Scholar

³ See, recently, Novati, G. CalchiIt Corno d'Africa Nella Storia e Nella Politica, 1994.Google Scholar

⁴ These provisions are still in force in conformity with Proclamation 2/91 of the Eritrean Government.

⁵ Catala, P. and Weir, J.A., “Delict and tort: a study in parallel”, (1963) 37 Tulane L. R. 573, 577.Google Scholar

⁶ On the notion and the characteristics of Western legal tradition see, inter alia, Berman, H.J., Law and Revolution: The Formation of the Western Legal Tradition, Cambridge, Mass, 1983.Google Scholar

⁷ Calabresi, G. “Torts. The law of the mixed society”, (1978) 56 Texas L. R. 519.Google Scholar

⁸ See Fifoot, C.H.S.History and Sources of the Common Law. Tort and Contract, London, 1949, 44ff;Google ScholarPonzanelli, G., La Responsabilitá Civile. Pofili di Diritto Comparato, 1992, 12ff;Google ScholarViney, G., Les Obligations. Responsabilité Civile: Conditions, 1982, 4ff.Google Scholar

⁹ Holmes, O.W., The Common Law, London, 1881, 88.Google Scholar

¹⁰ As to the civil law systems it should be remembered that the culpa principle dates back to Lex Aquilia (3rd century B.C.) and to its applications which gradually added to the objective notion of damage caused iniuria (without right) the notion of individual culpability. On this evolution see a careful summary in Stein, P., Legal Institutions: The Development of Dispute Settlement, London, 1984, 194ff.Google Scholar

¹¹ See Gregory, C.O., “Trespass to negligence to absolute liability”, (1951) 37 Va L. R. 361.Google Scholar See also, Wigmore, J., “Responsibility for tortious acts: its history”, (1894) 7 Harv. L. R. 315CrossRefGoogle Scholar; and Isaacs, N., “Fault and liability”, (1918) 31 Harv. L. R. 954.CrossRefGoogle Scholar

¹² Horwitz, M., The Transformation of American Law. 1780–1860, Cambridge, Mass, 1977, 85ff.Google Scholar

¹³ See Schwartz, G., “Tort law and the economy in nineteenth century America: a reinterpretation”, (1981) 90 Yale L. J. 1717CrossRefGoogle Scholar; and “The character of early American tort law”, (1989) 36 UCLA L. R. 641Google Scholar; Rabin, R., “The historical interpretation of the fault principle”, (1981) 15 Ga L. R. 925Google Scholar; and “Some thoughts on tort law from a sociopolitical perspective”, (1969) 51 Wis. L. R. 57Google Scholar; Malone, W., “Ruminations on the role of fault in the history of the common law of torts”, (1970) 31 La. L. R. 1ffGoogle Scholar; Terré, F.;, “Propos sur la responsabilité civile”, (1977) 22 Arch. Phil. Droit 39ffGoogle Scholar; Flour, Y., “Faute et responsabilité civile: déclin ou renaissance?” (1987) 5 Droits 29, 42ff.Google Scholar

¹⁴ A conclusion which should not conceal the various obstacles that the recovery might encounter in court, such as the fellow servant rule and assumption of risk as to workers compensation and requirement of privity of contract for product liability. See the survey in Prosser and Keeton on The of Torts, Paul, St., Min, 5th ed., 1984, 677ff.Google Scholar

¹⁵ See Markesinis, B.S., Liability for Unintentional Harm in the Civil Law and in the Common Law, 1983Google Scholar; Ogorek, R., “Actio negatoria und industrielle beeinträchu'gung des grundeigentums”Google Scholar, in Coing, H. and Wilhelm, W. (eds.), Wissenschaft und Kodifikation des Privatrechts im 19 Jahrundert, 1979, 40ff.Google Scholar It should be added, however, that for a long period, even in the cases in which liability was to be based upon negligence, nevertheless liability came to arise only when the victim was injured in one of the legal interests deemed worthy of protection (essentially, life, physical integrity, property). On all these points see the summary in Zweigert, K. and Koetz, H., An Introduction to Comparative Law, Vol. II Amsterdam, 2nd ed., 1987, 292ff.Google Scholar

¹⁶ See Palmer, V., “A general theory of the inner structure of strict liability: common law, civil law and comparative law”, (1988) 62 Tulane L. R. 1303ff.Google Scholar

¹⁷ Think, for example, of the leading cases which marked the path of product liability: MacPherson v. Buick Motor (1916) 217 N.Y. 382, 111 N.E. 1050Google Scholar; Donoghue v. Stevenson [1932] A.C. 562Google Scholar; Escola Coca Cola Bottling Co. of Fresno (1944) 24 Cal. 2d453; 150 P. 2d 436.Google Scholar Compare them with that followed by European civil law systems. In the latter the very different and sometimes contradictory path followed by national courts has long been bearable only thanks to scholarly efforts of rationalization. In the end, such scholarly efforts have been successful also at the E.U. level leading the enactment of a directive. See Ponzanelli, G., La Responsabilitá Civile. Profili di Diritto Comparato, 1992, 67ff and 107ff.Google Scholar

¹⁸ See Snyder, F., “The failure of law and development”, (1982) Wisconsin L. R. 373.Google Scholar For a general survey on the law and development movement, see Benda-Beckmann, F. von, “Scapegoat and magic charm: law in development theory and practice”, (1989) 28 J. of Legal Pluralism and Unofficial Law 129CrossRefGoogle Scholar; Ferguene, A., “Eléments pour un autre dévéloppement”, (1993) 31 Rev. Algér. Sc. Jur. 79.Google ScholarAdelman, S. and Paliwala, A., Law and Crisis in the Third World, London, 1993Google Scholar; Seidman, R.B., The State, Law, and Development, London, 1978.Google Scholar From the economic point of view, see Little, I.M.D., Economic Development: Theory, Policy and International Relations, New York, 1982 (focusing on how, in developing countries, part of the economy operates under paternalist or quasi feudal regime).Google Scholar

¹⁹ See Sacco, R., Introduzione al Diritto Privato Somalo, 1973.Google Scholar

²⁰ See for example, Mommsen, W.J. and Moor, J. de, European Expansion and Law: The Encounter of European and Indigenous Law in 19th and 20th century Africa and Asia, 1991.Google Scholar

²¹ See for example, Ostini, F., Trattato di Diritto Consuetudinario dell'Eritrea, 1960Google Scholar; Russell, F.F., “Eritrean customary law”, (1959) 3 J.A.L. 99ffCrossRefGoogle Scholar; Mustafa, Zaki, “The substantive law applied by Muslim courts in Ethiopia. Possible justifications for the continued application of the Sharia”, (1973) 9 J.E.L. 138ff.Google Scholar As to the Fetha Negast (the term derives from Ge'ez, the ancient language of Ethiopia, and can be understood to mean “justice of the Kings”) which is a sort of compilation of religious and civil precepts, whose sources seem to have been the Old and New Testament, a certain number of original Apostolic writings, the canons of early Councils, other writings which reflected the principles both of the compilation of Justinian as appearing in the books of Syro-Roman Law, and of Mohammed Law School of Cairo, see Guidi, I., It Fetha Negast o Legislator dei Re. Codice Ecclesiastico e Civile dell'Abissinia, 2 vols, 1895–1899Google Scholar; Perham, M., The Government of Ethiopia, 1948, 138ffGoogle Scholar; Berhane, Y., Delict and Torts: An Introduction to the Sources of the Law of Civil Wrongs in Contemporary Ethiopia, 1969, 3ff.Google Scholar As to the influence of Fetha Negast on the civil codification works, see David, R., “Le rapport entre le nouveau code civil et l'ancien Fetha Negast est facile à reconnaitre”, in David, R., “Les sources du Code Civil Ethiopien”, in (1962) 14 Rev. Int. Dr. Comp. 497; and see also the Preface to the Civil Code by Emperor Haile Selassie I: “the codification Commission has been inspired in its labours by the genius of Ethiopian legal traditions and institutions as revealed by the ancient and venerable Fetha Negast”.Google Scholar

²² For valuable remarks on this phenomenon see Sacco, R., “Diffusion at dépérissement des modéles juridiques italiens en Afrique, notamment en Somalie”, in Conac, G. (ed.), Dynamiques et Finalités des Droits Africaines, 1980, 26fGoogle Scholar; Guadagni, M., It Diritto dei Paesi Africani Nella Letteratura Contemporanea, 1984, 27ff, 215ff.Google Scholar

²³ Brietzke, P., Law, Development and the Ethiopian Revolution, 1982Google Scholar; Vanderlinden, J., “Le droit de la révolution éthiopienne”, in Conac, (ed.), op. cit., 331.Google Scholar

²⁴ Compare Haile, D., “Law and social change in Africa: preliminary look at the Ethiopian experience”, (1973) 9 J.E.L. 380ffGoogle Scholar; Strauss, P.L. and Topping, M.R., “Decision trees”, (1970) 7 J.E.L. 447ffGoogle Scholar; Geraghty, T., “People, practice, attitudes and problems in the courts of Ethiopia”, (1969) 6 J.E.L. 426ff.Google Scholar It seems, however, unlikely that the exporters and the drafters of legal models and codes failed to take these problems into consideration. What may be more likely is that this issue was underestimated by the various African intellectuals who gained power, who had studied overseas and come under the influence of “traditional” Western legal models; on this point see D. Haile, “Ethiopia”, in Guadagni, M. (ed.), Legal Scholarship in Africa, 1989, 29ff.Google Scholar

²⁵ See the works quoted above, nn. 19–20.

²⁶ On this phenomenon see for example, Griffith, J., “What is legal pluralism?” (1986) 24 J. Leg. Pluralism and Unofficial LawGoogle Scholar; Engle-Merry, S., “Legal pluralism”, (1988) 22 Law and Soc. Rev. 869.CrossRefGoogle Scholar

²⁷ Krzeczunowicz, G., “Code and custom in Ethiopia”, (1965) 2 J.E.L. 425ffGoogle Scholar; and “A new legislative approach to customary law. The ‘repeals’ provision of the Ethiopian Civil Code of 1960”, (1964) 1 J.E.L. 57ff.Google Scholar

²⁸ Brietzke, P., Law Development and Ethiopian Revolution, 1982, 82ffGoogle Scholar; R. Sacco, Diritto in Africa (forthcoming).

²⁹ As far as Ethiopia and Eritrea are concerned, see for example, Haile, op. cit.; Strauss and Topping, op. cit.

³⁰ On tort law provisions of the Code, see Berhane, Y., Delict and Torts: An Introduction to the Sources of the Law of Civil Wrongs in Contemporary Ethiopia, 1969Google Scholar; Krzeczunowicz, G., The Ethiopian Law of Extracontractual Liability, 1970.Google Scholar As to the civil code as a whole, David, R., “Civil code for Ethiopia” (1963) Tulane L. R. 187.Google Scholar

³¹ Compare with articles cited in n. 29 above.

³² Guadagni, M., Diritto dei Paesi Africani, Enc. Giur. Treccani, 1991.Google Scholar

³³ With specific regard to Ethiopia and Eritrea, see Y. Berhane, op. cit.

³⁴ Cf. Bussani, M., “Short notes on tort law in Ethiopia and Eritrea”, in Grande, E. (ed.), Transplants, Innovations and Legal Tradition in the Horn of Africa, 1995, 373ff.Google Scholar

³⁵ The spread of law and economics is one of the most important examples of methodological legal transplants in Western law. For its methodological development see Sacco, R., “Legal formants: dynamic approach to comparative law”, (1991) 39 Am. J. Comp. L. 26ff, 346ff.Google Scholar

³⁶ See Michelman, F.I., “Pollution as a tort. A non accidental perspective on Calabresi's costs”, (1971) 80 Yale L.J. 647.CrossRefGoogle Scholar

³⁷ See, for the American experience, Comment, “An enemy of the people: prosecuting the corporate polluter as a common law criminal”, (1990) 39 Am. Un. L. R. 311.Google Scholar

³⁸ See Murphy, S.D., “Prospective liability regimes for the transboundary movements of hazardous wastes”, (1994) 88 Am. J. Int. Law 24, 54.CrossRefGoogle Scholar

³⁹ See ibid., at 54.

⁴⁰ For a discussion of how different institutional mechanisms can be used in this regard see Viscusi, W.K., “Towards a diminished role of tort liability: social insurance, government regulation, and contemporary risks to health and safety”, (1989) 6 Yale J. Regulation 65Google Scholar; Shavell, S., “Liability harm vs regulation of safety”, (1984) 13 J. Leg. Stud. 357.CrossRefGoogle Scholar

⁴¹ See Cooter, R.D. and Ulen, T.S., Law and Economics, 1987.Google Scholar

⁴² On this point compare Dasgupta, P., An Inquiry into Well-being and Destitution, 1993.Google Scholar

⁴³ On these points see the works quoted above, n. 28; and Fraser, I.S., “The administrative framework for economic development in Ethiopia”, (1966) 3 J.E.L. 118ff.Google Scholar

⁴⁴ See Mohamed, J. Clare, “Environmental law trends and concerns in Zimbabwe”, in Backer, I.L.Bugge, H.C. and Hellum, A. (eds.), Environment and Development in Developing Countries: National and International Law, Skriftserie, 1994, 15, 20ff.Google Scholar

⁴⁵ See Elias, T.O., The Nature of African Customary Law, Manchester, 1956.Google Scholar

⁴⁶ For some examples of African national statutes tackling pollution, Adekunle, A., Statute Note, (1992) 36(1) J.A.L. 99ff.Google Scholar

⁴⁷ We should consider that not all the layers of a stratified legal system are like clothes that can be worn or taken off as we desire. Indeed, very few of them are. Once a layer has been put on it cannot be completely removed. It would be impossible for the French or the Italian legal systems, for instance, to decide overnight to become common law systems. This is because the degree of resistance of the Civil Law tradition is very strong in France and Italy. In stratified legal systems, not all the layers of legal systems have a degree of resistance comparable to that of the Civil Law tradition in France or of the Common Law tradition in England. In less developed countries the modern layer of the legal system (common law or civil law) does not constitute a tradition. Modern layers are not rooted because of the phenomenon of “duality” to which economics of development scholars refer. In other words, while a layer of the legal system can be changed (Sudan's shift from common law to civil law and then to Islamic law is a good example), a legal tradition cannot.

⁴⁸ At that time, as has been seen (nn. 2 and 3), a vast number of growing industrial activities were allowed to externalize their costs with appalling consequences for the environment.