There is no single definition of customary law agreed by lawyers, jurists, social anthropologists and others who may be concerned with it. This in itself is not surprising for both “custom” and “law” may be used in a number of differing senses depending upon the requirements of a writer's approach. The fact that these terms may mean different things to different persons in different contexts is not in itself important. But the place of customary law in the developing legal systems of new African states is a matter of some considerable contemporary importance which calls for some precise definition in this immediate respect. In general terms it may perhaps be said that here a lawyer looks for rules of law such as are familiar to him in other legal systems, whilst the anthropologist is more concerned with the interaction between law and the social and political system of a people, and in any case recognizes that legal relationships are but a part of the total relationships between individuals in a society. Some of the divergences of view on the concept and definition of customary law may be lessened however if it is recognized that a diachronic approach may clarify part of the disputed field.

The question, “What is customary law?”, poses a number of different problems. It can (and no doubt it will) give rise to answers which stem from differing interpretations of the sort of discussion that it is attempting to stimulate. It is fair to suppose that some of these will deal with the jurisprudential aspects of customary law, and its relation to other branches of the law. Others may cover the purely procedural and administrative factors that govern the application of customary law in various countries. And yet others may choose to emphasize the changing nature of customary law and the doubts which surround the precise details of its future in many contemporary countries.

Expressions Indicating varying degrees of dissatisfaction with systems of land tenure prevailing in sub-Saharan Africa are very common, and the view is widely held that the traditional institutions which govern land rights operate in a manner obstructive to agricultural development. “If enterprise is to be given an opportunity to express itself”, writes Dr. Yudelman in a recent book, “there must be a break with traditional institutions which govern land”.Views of this kind call for decisions regarding the substitution of one system of law for another, or for various kinds of radical reform including the engrafting onto the traditional system of legal expedients and devices proved useful in other systems of law. Such decisions, however, patently require much more than a mere nodding acquaintance with the existing local law, the changes sought to be introduced therein, and their functioning in the systems of law from which they are to be borrowed. Accordingly a need exists for a kind of comparative legal analysis of existing systems of landholding which can throw into relief the real points of weakness that need to be remedied or pruned away, while also indicating the elements that are worthy to be retained, if even only as the stock upon which novel arrangements may be engrafted.