We may quickly dispose of the question, 'what is land?' The Yoruba have no concept of the distinction, known to European law, between real and personal property or between movable and immovable property. That is, they do not recognize a legal distinction, for instance, in the sense that different rules of inheritance apply to different types of objects. They are of course conscious that the physical nature of objects will always affect the manner in which they are shared in inheritance -- land is permanent, money is easily divisible, while a gown or the right to a title is not. In this book, therefore, we shall use land to denote what the dictionary describes as 'the solid part of the earth's surface, the ground'. For this concept the Yoruba use the word ile + ̩. Rights in land are very often held by persons other than those holding rights in the house (ile) on the land. The word farm (oko) is less easy to distinguish from land but it is here taken to mean the agricultural improvements to the land -- the clearing and cultivating of it and the planting of permanent crops. Thus in Yoruba law a distinction is made between land and the improvements thereon; the distinction is furthermore made between man-made improvements and those valuable things, such as stone for building, firewood, game, wild palms, which are on the land as an act of nature.
What then is law? This does not seem a difficult question but it has its pitfalls. 'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law' was the dictum of Holmes.1 Cardozo defined law as 'a principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged'. In this definition says Hoebel are four essential components -- (1) the normative element; (2) regularity; (3) courts; (4) enforcement'.2 The emphasis placed upon courts by these and other jurists has led to assertions that primitive societies without formal courts cannot therefore have law; anthropologists have rushed to reply that these primitive societies, far from being in a state of anarchy, have well-developed systems of social control. This argument need not detain us here for traditional Yoruba society with its councils of obas and chiefs sitting in a judicial capacity did in fact have courts. Hoebel has, however, redefined law in these____________________