This paper was originally prepared for the final conference of the Committee for the Comparative Study of New Nations at the University of Chicago, October 16–19, 1975. Funds for this meeting were made available by a grant from the Ford Foundation. Like the conference, this paper is dedicated to the memory of Lloyd A. Fallers. I would also like to acknowledge my debt to the late Max Rheinstein, who served at the conference as commentor on this paper.

¹ See generally Pooley, Beverley, ‘The Modernization of Law in Ghana’, in Foster, P. and Zolberg, A. (eds.), Ghana and the Ivory Coast (Chicago: University of Chicago Press, 1971), pp. 167–86;Google ScholarDerrett, J. Duncan M., ‘Justice, Equity and Good Conscience’, in Anderson, J. N. D. (ed.), Changing Law in Developing Countries (New York: Praeger, 1963), pp. 114–53;Google ScholarAfrican Conference on Local Courts and Customary Law,1963, p. 32, note 1.Google Scholar

² See, for example, the Nigerian experience in Asante, Samuel K. B., ‘Interests in Land in the Customary Law of Ghana—A New Appraisal’, Yale Law Journal, vol. 74, no. 5 (04 1965), 848–85.CrossRefGoogle Scholar

³ For example, the penal codes of most of the former British colonies are based on the Queensland, Australia code, itself an amalgam of English common law, the Penal Code of New York, and the Italian Penal Code. In the Middle East, penal codes have been adopted from France and Switzerland.

⁴ Hazard, John H., ‘Revolutionary Socialism and African Law Reform’, The Record of the Association of the Bar of the City of New York, vol. 26, no. 5 (05 1971), 358–68 at 361. Enforcement of these provisions does, however, vary widely. Moreover, in none of the socialist countries of black Africa is Soviet criminal procedure followed, the French system of preliminary investigation being preferred.Google Scholar

⁵ Colson, Elizabeth, Tradition and Contract (Chicago: Aldine Publishing Co., 1974), p. 7.Google Scholar

⁶ See Clinard, Marshall B. and Abbott, Daniel J., Crime in Developing Countries (New York: John Wiley & Sons, 1973). Expressing great reservations about the reliability of crime statistics, the authors nevertheless conclude that crime rates in almost all developing countries continue to rise much faster than either the population rates or economic indicators.Google Scholar

⁷ See, for example, the statement of the Ugandan Minister of Internal Affairs, New York Times, July 27, 1971,Google Scholar and Veitch, E., ‘Some Examples of Judicial Law Making in African Legal Systems’, Modern Law Review, vol. 34, no. 1 (01 1971), 42–54 at 46. An alleged rise in criminal activity may, of course, be used to justify repressive political action.CrossRefGoogle Scholar

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¹⁴ Allott, A. N. and Cotran, E., ‘A Background Paper on Restatement of Laws in Africa’, in University of Hie, Institute of African Studies, Integration of Customary and Modern Legal Systems in Africa (New York: Africana Publishing Corp., 1971), pp. 17–41.Google Scholar Others, such as J. Keuning, ‘Some Remarks on Law and Courts in Africa’, ibid., pp. 57–71, argue that legislation is the best approach, but not in the form of a code.

¹⁵ Akanki, Oladeji, ‘Proof of Customary Law in Nigerian Courts’, The Nigerian Law Journal, vol. 4 (1970), 20–36 at 35.Google Scholar

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¹⁸ This is the doctrine of promissory estoppel set forth in the American Law Institute, Restatement of Contracts, Section 90 and applied to customary law in Fuller, Lon L., ‘Human Interaction and the Law’, in Wolff, Robert Paul (ed.), The Rule of Law (New York: Simon and Schuster, 1971), pp. 171–217 at 190–1.Google Scholar

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³⁴ Ibid., p. 139. Similarly, the Malawian White Paper 002 of 1965, paragraph 20, cited in Brietzke, , ‘The Chilobwe Murders Trial’, op. cit., p. 373Google Scholar states: ‘The function of a judge is not to question or obstruct the policies of the Executive Government, but to ascertain the purpose of these policies by reference to the laws made by Parliament and fairly and impartially to give effect to those purposes in the Courts when required to do so.’ For a statement of the Ghanaian position see the case of Captan v. Minister for Internal Affairs (1970)Google Scholar cited in Dickey, Walter and Tsikata, Fui, ‘A Look at Administrative Law in Ghana’, University of Ghana Law Journal, vol. 9, no. 2 (1972), 135–72.Google Scholar

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³⁹ Kesavananda Bharati v. State of Kerala, All India Reporter, vol. 60 (1973), 1461.Google Scholar The case is discussed in Sathe, S. P., ‘Judicial Review in India: Limits and Policy’, Ohio State Law Journal, vol. 35, no. 4 (1974), 870–99.Google Scholar Compare the Pakistani cases cited in Iyer, T. K. K., ’Constitutional Law in Pakistan: Kelsen in the Courts’, The American Journal of Comparative Law, vol. 21, no. 4 (Fall 1973), 759–71.CrossRefGoogle Scholar

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⁵⁹ Twenty-five to thirty-five percent of the urban population of many cities in Asia, Africa, and Latin America is composed of squatters. See Clinard, and Abbott, , Crime in Developing Countries, pp. 134–5.Google Scholar For the Venezuelan case see Karst, Kenneth L., ‘Rights in Land and Housing in an Informal Legal System: The Barrios of Caracas’, The American Journal of Comparative Law, vol. 19, no. 3 (Summer 1971), 550–74;CrossRefGoogle Scholar for Kenya, Mbithi, Philip M. and Barnes, Carolyn, The Spontaneous Settlement Problem in Kenya (Nairobi: East African Literature Bureau, 1975).Google Scholar

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⁶⁸ At least one state, West Bengal, also made the practice a cognizable offense. See Agence France-Presse release of March 31,1976. Similar civil service sanctions were employed by the Gandhi government in its vasectomy program.

⁶⁹ On the effect of changes in inheritance laws see Colson, Elizabeth, ‘Possible Repercussions of the Right to Make Wills’, Journal of African Administration, vol. 2 (1950) 24–34.Google Scholar For the Indonesian example see Jaspan, M. A., ‘In Quest of New Law: The Perplexity of Legal Syncretism in Indonesia’, Comparative Studies in Society and History, vol. 7, no. 3 (04 1965), 252–66 at 262–3;CrossRefGoogle Scholar and Lev, Daniel, Islamic Courts in Indonesia (Berkeley: University of California Press, 1972).Google Scholar On family law changes see generally Anderson, J. N. D. (ed.), Family Law in Asia and Africa (London: George Allen and Unwin Ltd., 1968);Google ScholarBuxbaum, David C. (ed), Family Law and Customary Law in Asia (The Hague: Martinus Nijhoff, 1968).CrossRefGoogle Scholar

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