Authored By: Tsion Taddele Hagos
Addis Ababa University
Abstract
This article explores the dynamic relationship between culture and law in the context of marital rape and spousal inheritance right in ethiopia. I argue that the Ethiopian legal responses to these two issues are deeply influenced by the patriarchal norms and backward cultural values that dominate in regards to women.
The paper highlights how law must be the means to social engineering. Without the progress of law, culture cannot change itself; and if it does, the change will be slow and plenty of people will be disadvantaged by the social injustices that will prevail in due time. Ultimately, law must influence culture and society forward without being tied to the constraint of culture.
This is reviewed by using comparative methodology and comparing South Africans and Ethiopians legal system and how each legal system responds to the specific issue, using two landmark cases as an example to how law can move forward and shape culture.
Finally, It concludes that the law must move beyond mirroring existing societal values and to intentionally shaping them. It recommends legal reform and civic education as a necessary step for cultural transformation to ensure social justice and a right based legal system.
Introduction
Culture and law are intertwined elements of society, each influencing and shaping the other in a dynamic relationship. While culture provides the values, norms, and traditions that form the basis of societal behaviour, law serves as the codified expression of those values, aiming to regulate conduct and maintain order. Law by function cannot be seen and amended in separation to culture. It is a reflection of the society it governs. All legal systems are shaped by the historical, social and cultural context by which it evolved. Hence, Legal institutions and procedures are more likely to be influenced by the cultural practices and traditions of a given society.1
This research tries to address; to what extent does culture shape the Ethiopian legal response to marital rape and spousal inheritance right? And what lessons can Ethiopia draw from South Africa’s legal reform?
The influence of culture in law: In reference to Marital Rape and Spousal Inheritance Laws in Ethiopia
Background
Scholars like Cotterrell argue that legal ideas reflect societal norms and values, suggesting that the law both shapes and is shaped by cultural context.2 Geertz further emphasizes the interpretive nature of law within local knowledge systems, underscoring the necessity of understanding legal practices within their cultural settings.3 Specific to the Ethiopian context, works by Ambaye and Pankhurst explore how entrenched patriarchal norms influence legal attitudes and practices, particularly in relation to women’s rights and gender equality.4 The lack of recognition for marital rape and the exclusion of spousal inheritance rights in ethiopia are examples of the manifestations of these deep-rooted cultural biases.5 Comparatively, South African legal reforms on sexual offences and spousal rights provide a valuable framework for analysing how similar cultural challenges have been addressed through legislative changes.6 This paper argues that cultural biases stunt legal reform, with a comparative analysis with South Africa’s progressive legal interventions, further illuminating how law can either perpetuate or challenge harmful traditions.
Martial rape
Article 620 of the Penal code of Ethiopia reads.
ARTICLE 620- RAPE
Whoever compels a woman to submit to sexual intercourse outside wedlock, whether by use of violence or grave intimidation, or after grave intimidation, or after rendering her unconscious or incapable of resistance, is punishable with rigorous imprisonment from five years to fifteen years.
As read in the above Article, Rape is defined as an act that only takes place outside of wedlock, establishing that Ethiopia has not yet criminalized marital rape. Martial rape is a concept that is often dismissed and trivialized within the community. It is with the prevailing belief that wives are obligated to comply with their husbands’ sexual demands regardless of The influence of culture in law: In reference to Marital Rape and Spousal Inheritance Laws in Ethiopia consent. It is assumed that consent given for marriage equates for the same consent needed for sex within that marriage. This normalization is perpetuated by cultural taboos regarding the idea of sexuality and gender dynamics that exists especially in regards to women.
The Ethiopian legal system failing to recognize marital rape, a non-consensual sex in which the perpetrator is the spouse of the victim, as a criminal act not only undermines the safety and dignity of women but also violates their human rights guaranteed under the constitution and other international treaties such as CEDAW (The convention on elimination of all forms of discrimination against women).7
The absence of these laws, driven by cultural and religious influence to the legal framework has been an issue discussed for decades.
A study conducted in Western part of Ethiopia, from the urban and rural settings, indicates that the attitude of people and traditional norms play an immense role in safeguarding the act of sexual violence by intimate partner.8 Majority of women prefer tolerating the husband in silence rather than externalizing the matter. The study indicated that misuse of biblical verse which dictates the wife to submit for her husband is repeatedly raised as a defense to abuse women.
The absence of explicit legal provisions criminalizing rape that occurs within a marriage encourages a culture of impunity. With perpetrators being protected from prosecution, it gives the idea that actions, whether violent or not, are beyond the reach of the law if committed within the confines of marriage.9 This undermines the efforts made to promote gender equality and protect human rights.
The lack of recognition for martial rape and the absence of spousal inheritance right has impacted the livelihood of women and children immensely. These two instances are prime examples of the dysfunction that follows when law strictly abides by the existing culture instead of shaping it. The institutionalization of culture must lead to social justice and correcting the wrongs of harmful cultural values. Ultimately, law should serve as a tool for social engineering not a mirror to our harmful cultural norms.
The influence of culture in law: In reference to Marital Rape and Spousal Inheritance Laws in Ethiopia
The lack of spousal inheritance right
According to Ethiopian inheritance law, spouses are exempted from inheriting each other. And estate is passed to descendants and with no offsprings to ascendants, excluding spouses in the devolution.10 This cultural and legal practice has perpetuated the exclusion of spouses, particularly wives from inheriting property, contributing to gender disparities and economic vulnerability among women after the death of their husband.
Ethiopia’s inheritance laws, based on customary practices and the Civil Code, present significant obstacles to gender equality. Under customary law, assets are typically passed down patrilineally, excluding spouses, particularly wives, from inheriting property. The Civil Code, while providing some protections for widows and children, fails to guarantee spousal inheritance rights. Consequently, women are often left economically vulnerable upon the death of their husbands, lacking access to property and resources essential for their livelihoods.
Law and culture
Law has been used as a tool to integrate society, define value and promote social cohesion. What makes law distinct from basic social values is that it is applied systematically, enforced and interpreted through the use of procedures, agencies and ultimately by force. While law is formally institutionalized, culture stays to be practised. This entails that law is ultimately based on societal values and accepted norms. But what happens when these norms and values are no longer serving the society to move forward but instead perpetuating inequality and social injustice to particular groups of the society? How can the law move forward and step outside of the lens of culture to create new cultural values?
Even though Ethiopia has rich and many well-meaning cultural heritages and tradition that shaped the law positively, It seems to fall short in case of inheritance law and matrital rape. the cultural misplaced role of women and patriarchial norms has been systematize to affect women deeply when it comes to the context of spousal inheritance right and criminalization of marital rape. The deep-rooted patriarchal norms and practices seem to take precedence and shape the law instead of the law being used as a means of social justice.
The influence of culture in law: In reference to Marital Rape and Spousal Inheritance Laws in Ethiopia
A Comparative Perspective
In contrast to Ethiopia, South Africa has made significant strides in promoting gender equality through its inheritance laws and recognition of martial rape as a criminal act.11 The Recognition of Customary Marriages Act and the Intestate Succession Act recognize spouses’ rights to inherit from each other, regardless of gender. This progressive approach not only acknowledges the contributions of spouses to the marital partnership but also fosters economic empowerment and financial security for women.
Furthermore, South Africa’s legal framework demonstrates a commitment to addressing gender-based violence and discrimination within the marital context. The Criminal Law (Sexual Offences and Related Matters) Amendment Act criminalizes marital rape, affirming the principle of bodily autonomy and challenging entrenched notions of spousal ownership.12 By recognizing marital rape as a criminal offense, South Africa confronts the systemic inequalities that perpetuate gender-based violence and empowers women to assert their rights within the marital relationship.
By criminalizing marital rape and recognizing spousal inheritance rights, South Africa has taken significant steps to ensure that its laws align more closely with international human rights standards. These legal reforms demonstrate a commitment to challenging and changing deep-rooted cultural norms that may perpetuate inequality and harm13. Such progressive legal measures are essential in advancing social justice and protecting the rights of all individuals, especially those in marginalized or vulnerable positions.
In contrast, Ethiopia’s legal landscape reveals the challenges that come when cultural practices and patriarchal norms take precedence over the law. The lack of criminalization of marital rape and the absence of spousal inheritance rights highlights the ongoing struggle to balance cultural traditions with human rights and gender equality.
The contrasting approaches of Ethiopia and South Africa to inheritance laws highlight the critical role of legal frameworks in shaping gender dynamics within society. While Ethiopia’s inheritance laws perpetuate gender disparities and economic vulnerability for women, South Africa’s progressive stance promotes gender equality and empowers women to assert their rights within the marital relationship.
The influence of culture in law: In reference to Marital Rape and Spousal Inheritance Laws in Ethiopia
In Daniels v Campbell NO and others (2004) the constitutional court held that the provision of the Intestate succession Act and Maintenance Act of surviving spouses Act applied to spouses of monogamous and polygynous muslim marriages, thereby affirming the rights of women in religious union to inherit and claim maintenance. 14
Similarly, In Bhe and others v magistrate, khayelitsha, and others (2004) the court invalidated the customary male primogeniture holding that it violated the rights to equality and human dignity guaranteed by the constitution. These landmark rulings laid the constitutional foundation for the Reform of Customary Law of Succession and Regulation Act 11 of 2009, Which abolished primogeniture and mandated equitable succession. 15
Conclusion and Recommendations
The intertwined dynamic between culture and law is evident in how legal systems are shaped by the cultural values, norms, and traditions of a society. While culture provides the foundation for societal behaviour, law aims to codify and regulate these behaviours to maintain order and protect individual rights. However, this relationship is not always straightforward, as cultural practices and legal standards can sometimes be in conflict, particularly in areas concerning human rights.
This dynamic relationship between culture and law requires constant negotiation and adaptation. While it is crucial to respect and preserve cultural heritage, the law must also serve as a force for positive change, ensuring that all members of society are treated with dignity and respect. Marital rape has become a concerning issue in Ethiopia due to lack of legal recognition and response from law enforcement bodies that results from cultural and religious constructs. The absence of spousal inheritance rights in Ethiopia further exacerbates gender inequality and women’s economic empowerment. Therefore, the need to explore the intersection of culture and the legal framework in Ethiopia, specifically in the context of marital rape and inheritance laws is crucial and every necessery.
In countries like Ethiopia, where deep-rooted patriarchal norms persist, the implementation and enforcement of such laws can be difficult. The law’s role, therefore, extends beyond mere regulation; it also serves as an instrument of social change. It must challenge entrenched cultural practices and promote progressive values. This highlights the need for ongoing
The influence of culture in law: In reference to Marital Rape and Spousal Inheritance Laws in Ethiopia dialogue and education to bridge the gap between legal standards and cultural expectations, ensuring that the law not only reflects society but also guides it towards greater justice and equality.
Civil societies (CSOs) play a vital role in addressing this issue. They must challenge traditional beliefs and harmful practices that normalize violence against women. They must utilize various communication strategies, including local languages and cultural references, to reach diverse communities and effect lasting change in attitudes and behaviors.
The need for Legal reform on these issues is evident. The Ethiopian legal system must align with the International Human Right standard and Gender justice under CEDAW. Ethiopia must amend the penal code to explicitly criminalize marital rape and revise inheritance laws to grant spouses equal rights to property succession.
Ultimately, the law must actively move forward, and institutions must be in place to uphold good cultural practices while still assessing their relevance and good use instead of blind acceptance of cultural practices. Even though it is crucial to respect and preserve cultural heritage, the law must also serve as a force for positive change, ensuring that all members of society are treated with dignity and respect. By prioritizing human rights and equality, Ethiopian legal systems can help bridge the gap between cultural practices and legal standards to create a more just and equitable society for all citizens.
Cultural transformation cannot come without the law taking precedence. Law should not only respond to culture but help reshape it toward equity and dignity.
The influence of culture in law: In reference to Marital Rape and Spousal Inheritance Laws in Ethiopia
Bibliography
Books:
- Cotterrell R, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Ashgate 2006).
- Geertz C, Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books 1983).
Journal Articles:
- Artz L and Smythe D, ‘Should We Consent? Rape Law Reform in South Africa’ (2007) Acta Juridica 148-173.
- Hassen EM, ‘Marital Rape: Silence in the Law of Ethiopia’ (2017) Bahir Dar University Journal of Law.
- Pankhurst R, ‘Traditional Ethiopian Attitudes Towards Women: A Review of the Literature’ (1990) Journal of Ethiopian Studies.
- International Journal of Legal Information, ‘Sexual Violence and the Law in Africa: Marital Rape as a Human Rights Violation’ (2019) 47 International Journal of Legal Information 123.
- Kebkab Sirgew Gelaw, ‘Addressing Marital Rape in Ethiopia: An Alternative Approach’ (2022) 1(1) Journal of Human Rights and Law 1-15.
- Sileshi Garoma, Mesganaw Fantahun, and Alemayehu Worku, ‘Intimate Partner Violence against Women in West Ethiopia: A Qualitative Study on Attitudes, Woman’s Response, and Suggested Measures as Perceived by Community Members’ (2012) 1 Journal of Reproductive Health 1.
Legislation:
- Ethiopian Civil Code, Proclamation No. 165 of 1960.
- FDRE Constitution, arts 34, 35.
- Legalbrief, ‘South Africa Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007’ (2007).
1Cotterrell R, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Ashgate 2006).
2Ibid.
3 Geertz C, Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books 1983).
4 Ambaye DW, ‘Customary Law and Economic Development in Africa’ in E O Ako and D Olawuyi (eds), Human Rights and the Environment under African Union Law (2015).
5 Pankhurst R, ‘Traditional Ethiopian Attitudes Towards Women: A Review of the Literature’ (1990) Journal of Ethiopian Studies.
6 Artz, L., & Smythe, D. Should We Consent? Rape Law Reform in South Africa (2007) Acta Juridica, 2007(1), 148-173
7 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).
8Sileshi Garoma, Mesganaw Fantahun, and Alemayehu Worku, ‘Intimate Partner Violence against Women in West Ethiopia: A Qualitative Study on Attitudes, Woman’s Response, and Suggested Measures as Perceived by Community Members’ (2012) 1 Journal of Reproductive Health 1.
9 Kebkab Sirgew Gelaw, ‘Addressing Marital Rape in Ethiopia: An Alternative Approach’ (2022) 1(1) Journal of Human Rights and Law 1-15.
10 Ethiopian Civil Code, Proclamation No. 165 of 1960.
11 Legalbrief, South Africa Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
12Artz, L., & Smythe, D. Should We Consent? Rape Law Reform in South Africa (2007) Acta Juridica, 2007(1), 148-173
13 Ibid
14 Daniels v Campbell NO and Others [2004] ZACC 14, 2004 (5) SA 331 (CC).
15 Cornell Law School, Gender Justice – South Africa (Legal Information Institute, 2023) https://www.law.cornell.edu/gender-justice/jurisdiction/south_africa accessed 8 July 2025.
