Thailand Law Journal 2012 Fall Issue 1 Volume 15

Seeing it in the light of history, the author realizes that everything is in 'eternal recurrence.' What took place in the NEI and the Dutch in the eighteenth century look similar, if not exactly the same, to what still happen recently in the European context.
Van Vollenhoven who was a fighter for legal pluralism and anti-unification of the NEI was like Pierre Legrand and his colleagues who joined the culturalist school in the European context of today, challenging the idea of European legal unification.
However, the contemporary fighters of legal pluralism will only be discussed slightly here. My essay will deal mainly with Van Vollenhoven. The author will illuminate his thought in light of the contemporary debate on legal unification in comparative law.
This paper will argue that what Van Vollenhoven did, in fact, was a part and parcel of the European colonial policy to exploit the colony for the Dutch benefit, and had nothing to do with being 'a good Samaritan' by saving 'the other' legal culture. What
he did was also mainly triggered by what I refer to as cultural anxiety. His campaign to promote adat law was intensified by his fear of the rising Islamic identity that would be used as a rebellious ideology by the people of NEI to fight against the Dutch.
Furthermore, I will argue that this factor met with the influence of European legal romanticism in Van Vollenhoven's intellectual background.

By doing this, the author wants to put Van Vollenhoven's ideas on adat law in the line of Hurgronje's main purpose of inventing and promoting adat law for Indonesian people. But more than that, I also want to trace the very European origin of adat law in
Van Vollenhoven's works.

To do that, this paper will firstly discuss the colonial context and the emergence of adat law in the NEI. In this part, the author will engage in a historical analysis in relation to the rise of adat law as an established discipline. It is important to trace the social and political circumstances behind the rise of adat. The role of Dutch legal scholars in 'discovering' or 'inventing' adat law will be discussed with much attention and will mainly be devoted to two Dutch scholars, Christian Snouck Hurgronje and Cornelis
Van Vollenhoven. Hurgronje in my essay is important because he was the first Dutch scholar that systematically used the term adat law. By discussing Hurgronje we can also reveal ideological dimensions of adat law.

The second part of this essay will deal with a genealogical tracing of adat law in the European legal traditions. The author will present the influence of the historic debate of codification in Germany between Anton Thibaut and Carl Von Savigny to the formation of adat law theory of Van Vollenhoven. Looking into the European origin of adat law will clarify the influence of European legal romanticism in Van Vollenhoven's intellectual background. It will also clarify that adat law was the Dutch law and a Dutch creation. Thus, in this chapter, I will attempt to trace the genealogy of adat law in the land where Van Vollenhoven lived, received legal education, learnt history and formulated his theory.

II. Dutch Legal Scholars and Adat Law

A. Hurgronje: taming Islam, promoting Adat
If it was about a transaction, then it happened in an uneven transactional relationship. It was actually a representation. It was also about the civilized West that appropriated the East. This was about the West that invented and created the image of the East. It took place in the age of colonialism.

What will be discussed here is not mainly colonialism in term of geographical and political occupation of the third world by Western countries, but rather the role of scholars in collaboration with their generals and colonial administrations to represent,
discover or even invent the East as an object of studies. Here, we will deal with the scholarly tradition of orientalism as brilliantly explained by Edward Said.⁹ But instead of dealing with the French or British orientalism as Said did in his book, the author will try to deal with the Dutch orientalism, describing the role of the Dutch scholars in discovering or inventing adat law in the NEI. More specifically, here, the role of a founding father of adat law, Christian Snouck Hurgronje in the colonial administration will be uncovered.¹⁰

Hurgronje came to Batavia (Jakarta) on May 11, 1889. His arrival was burdened by a hope that he could fill the gap of colonial policy on Islam there. Until his arrival, Dutch Islamic policy mainly relied on the combination of fears and misconceptions on Islam in Indonesia.¹¹ The Dutch, for example, apprehended Islam as a hierarchical, strict, structured religion with the Turkish Caliph at its top.¹² For the Dutch, local sultanates in the archipelago were assumed as a part of the great power of Turkish Caliph. The rebellious resistances in the archipelago which took place in Java (Java war 1825-1830),
Aceh (Aceh War 1873-1903), Minangkabau of the West Sumatra (Padri war 1821-1827), and Banten (1888) were also seen by the Dutch as Islamic-inspired rebellions which connected to the center of Islamic empire in Turkey.¹³ Thus, for the Dutch, like for other European powers including French and British at the moment, Islam was the only potential threat for their domination.¹⁴

In encountering this threat, the Dutch believed that the elimination of Islam from the archipelago was the only solution. Groups of missionary, both Catholic and Protestant, were sent to the archipelago to operate under the government sponsor. The pilgrim to Mecca (Haj) for people from the archipelago was also restricted. This practice of pilgrim was seen as the main axis that connected Islam in the archipelago with its center in the Middle East.¹⁵ Islam was regarded as a real fanatic and organized enemy against the Dutch in its colony.

As an expert of Semitic languages and experienced living in Mecca, the heart of Islamic religion, his arrival was significant indeed. His appointment as an Advisor of Arabian and Native Affairs for the Dutch government had to be accomplished by
visiting the colony. He did not come with nothing, but certainly he was equipped by the networks and knowledge of the native cultures as the result of his spending one year lived in Mecca to research the life of people from the NIE who settled in the hearth of Islamic religion. He went to Mecca, where he pretended to be a Muslim with a Muslim name Abdul Gaffar, ¹⁶ as an expert of Islam following the controversy of the pilgrim restriction by the Dutch government in the early nineteenth century. His experience of living in Arabia and Mecca for one year from 1884 to 1885 can be known from his book, Mekka in the Latter

9 EDWARDS AID, ORIENTALIS(M19 78).
10 CHRISTIANS. HURGROINJTEH,E ACHEHNSE (A. W. S. O' Sullivan trans., 2008).
11 Harry J. Benda, Christian Snouck Hurgronje and the Foundation of Dutch Islamic Policy in Indonesia, 30 JOURNAL
OF MODERN HISTORY 338-347 (1958).
12 Id. at 338-339.
13 AQIB SUMINTOP,O LITIK ISLAMH IINDIAB ELANDA9- 10 (1985).
14 Supra note 9, at 73-78.
15 Supra note 11.
16 Please be sure that Mecca is a holly place for Muslims in which non-Muslims are not allowed to enter. Because of
that Hurgronje converted to Islam before entering Mecca. In regard to whether his conversion was only a strategy or genuine, nobody knows. I just belong to the opinion saying that his conversion was only a strategy to get access to Mecca.