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1967] LEGAL SYSTEMS
may inhibit the use of modern methods of cultivation and thereby prevent
urgently needed increases in production. The uncertainty of title
prevents free alienation and the development of a fully cash econ-
omy.
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A number of other observations may be made about customary law.
In certain fields, a significant body of customary law has never emerged.
It is generally agreed that customary law is not very important in
regard to contractual obligations and commercial law. 4 Customary
law developed in response to the needs of people living in the traditional
society, and their needs in these areas were minimal.' 4 1 In other
areas, such as criminal law, modern conditions clearly demanded replacement,
and so customary criminal law has not been retained. 42
The real significance of customary law lies in matters such as family
relations, succession, and land tenure, 43 which are closely connected
with tradition and religion. Perhaps the real question is whether there
should be a separate body of customary law in these areas rather than
whether there should be a separate system of customary law as such.
The fact cannot be ignored that customary law represents a truly
indigenous law as opposed to foreign law, which has been imported
in African states in one form or another. There may be a tendency to
exaggerate the significance and merits of customary law in reaction to
the presence of the foreign law. 1 44 Moreover, the existence of a separate
body of customary law argues for its retention. Such law has
become a recognized part of the legal system, and a change may be
more violently resisted than if such law had not existed at all. Op-
139 See Roberts-Wray, supra note 133, at 85; Cowen, supra note 135, at 559-60.
240 See PRocEmm'Gs 22; T. ELIAS, BarrmsH COLONIAL LAw 273 (1962). Note that it
was not applicable in those fields in French Africa, supra note 126.
134 However, the fact that separate law exists in some fields could inhibit commercial
transactions between people of different tribal groups who might think
that their commercial transactions would be governed by customary law.
14 See PROCEEDNnGS 22. For examples of customary practices that were made
offenses by the penal law in the Sudan, see Guttman, supra note 48, at 405. However,
it must be remembered that in certain parts of Africa, such as Northern
Nigeria, much of the criminal law is administered by customary courts. See
Anderson, The Northern Nigerian Codes: A Major Advance, 24 MODERN L. REv.
616, 617 (1961).
143 There is general agreement on this point. See, e.g., PROCEEDnGS 23; Roberts-
Wray, supra note 133, at 84-85; T. ELIAs, supra note 140, at 274; Pageard, supra
note 57, at 475.
144 A. AiLoTT, supra note 46, at 55. The author points out, however, that Africans
trained in a foreign legal system may tend to undervalue their own legal institutions,
and one writer has contended that the indigenous nature of customary
law causes trained lawyers to advocate its abolition because it is inconsistent with
the law they have studied. T. ELIAS, supra note 128, at 376.