Thailand Law Journal 2012 Fall Issue 1 Volume 15

By acknowledging adat as an element that is, to some extent, different and even in conflict with Islamic law, Hurgronje confidently believed that he found a basic pattern to formulate Islamic policy for the colonial government. Harry J. Benda notes that Hurgronje was the first Dutch scholar who realized the usefulness and importance of adat law to reduce or impose the influence of Islamic law to its believers in Indonesia.³⁵

Benda adds that Hurgronje's recommendation for the Dutch colonial government on Islam can be summarized into three points.³⁶ First, contrary to the common assumption among the Dutch at that time, the nature of Islam in Indonesia can be divided into the religious and political Islam. Toward religious Islam, nothing to be worried at all since this Islam was private in nature and related mainly to the ritual aspects of Islam.

Hurgronje counseled toleration in dealing with this kind of Islam. Hurgronje for this reason recommended that the pilgrim to Mecca (Hajj) should not be restricted at all. In dealing with the political character of Islam, however, Hurgronje, without a doubt, recommended force and suppression to handle it. Benda calls this a "twin policy of tolerance and vigilance." Second, this twin policy should go in association with the support and encouragement of adat institutions both in Java and in the outer Islands like in Aceh and West Sumatra. This policy later would be manifested, for example, in a colonial regulation where if the conflict of law took place between Islamic law and adat law, the latter would prevail.³⁷ Third, for the long-term policy, the defeat of Islam could totally be achieved by promoting what he called the policy of association and emancipation. This policy was based on an assumption that for the long term, neither Islam nor adat would be preferred as the foundation for the transformation of modern Indonesia. The future of modern Indonesia should be relied on Western (Dutch) culture and civilization. Indonesia, in this policy, was regarded as a 'younger brother' that would have advice and help from her 'elder brother,' the Dutch. Indonesia should be part of Western civilized nations in the long term. To achieve this, Hurgronje proposed
scholarship of education policy for elite local aristocracies. For Hurgronje, education was the most effective way to integrate Indonesia into western culture.³⁸

B. Van Vollenhoven and Legal Pluralism

If Hurgronje was heavily illuminated by the 'episteme' of the nineteenth century orientalism, in which his personal interest on Islamic studies met with the political interest of the Dutch generals to conquer its Muslim colony, in Van Vollenhoven' s
works we can see the trace of European legal romanticism.

When Van Vollenhoven held a chair of Adat Law professor in Leiden in 1901, adat law was in the beginning of its scientific exploration. Hurgronje was considered by Van Vollenhoven as a scholar with an artistic gift that expressed his idea as brilliantly as Emille Zola.³⁹ Along with G.A. Wilken,⁴⁰ an expert on ethnological jurisprudence of Malay society, Hurgronje became the corner stone for Van Vollenhovenf s works on adat law. The influence of his predecessors, especially Hurgronje, could be seen from the political edge of Van Vollenhoven scientific work on adat law. While expressing his disappointment for the lack of interest on adat law among Dutch lawyers, e.g., Van Vollenhoven said that: "Islamic law and Western law are known to be on the watch for suitable opportunities to swallow an even larger 'slice' of indigenous law."⁴¹ For Van Vollenhoven, studying adat law was very important not only because of a practical reason for every colonial officer, but also for an ideological reason. In other part, he repeated his concern on the threat of Islamic Law. After discussing in detail adat law of Aceh, he concluded his chapter by asking whether or not European law could stand to replace adat law of Aceh. For this question he undoubtedly argued that "proven social needs and demand" for that "have not been proved at all" and "the introduction of the first few chapters of our law of property would do serious harm" to adat law. In the end, he said that: "The destruction of adat law will not pave the way for our codified law, but for social chaos and Islam." ⁴²

Mishandling of adat law that would ultimately lead to its destruction, for Van Vollenhoven, took place primarily because of the lack of knowledge of adat law. For quite a long time adat law was seen as similar to, or part of Islamic law merely because
the majority of Indonesian people were Muslim. The chair of Colonial Law and Native People of the NEI at Leiden University was named as the chair of Mohammedaansch recht due to this misunderstanding. Only after Van Vollenhoven accepted this chair in 1902 was the name changed to Adatrecht of the Netherland East Indies. ⁴³ L.W.C. van den Berg, the Dutch Government adviser on Oriental languages and Islamic law from 1878 to 1887 and a professor at Delft, according to Van Vollenhoven, was the one who was responsible for this misunderstanding. His theory of "reception in complex" of Islamic
law by Muslims, Hindu law by Hindus as well as Christian law by Christians had became the mainstream opinion within Dutch legal scholars. ⁴⁴

According to this doctrine, "the law of the Native is conditioned by their religion until the contrary is proved" because by accepting a religion they also "virtually accept religious law."⁴⁵ Thus, if the contrary was proved for one or more subjects, it would be regarded simply as a 'deviations' from religious law.⁴⁶ Thanks to Hurgronje who had criticized and ruined this doctrine by proving that despite the fact that the majority of people of the NEI were Muslim, only little of their life was affected by Islamic law, as discuss above.

Moreover, the real problem of misunderstanding, according to Van Vollenhoven, was deeply rooted in the circumstance of the Dutch legal education. Legal education did not pay attention to the historical perspective of law while too much paying attention to "the two legal system" (Today's Dutch law and the private law of Justinian). By ignoring this aspect, Dutch lawyers were not aware of particular and historical phenomenon of other legal systems that developed according to certain rules.⁴⁷ In addition, the feeling of superiority of the Western culture and its ethnocentrism during the age of imperialism made their ignorance to "the lesser breeds without the law" even deeper among them.⁴⁸ Adat law was ignored because of this a-historical legal tradition
among Dutch scholars as well as its ethnocentrism.⁴⁹

35 Supra note 11, at 341.
36 Id. at 342-346.
37 DANIESL. LEV, ISLA1VCIOICU RTINSI NDONES1I0A ( 1972). See also supra note 13, at 43.
38 For an account of association policy, see supra note 13, at 38-63; Laffan, supra note 21, at 90-94.
39 Van Vollenhoven, Study of Adat Law, supra note 2, at 27.
40 Id. Wilken was the former colonial officer in NEI who later became an expert of Malay ethnology. However, he died
unexpectedly when he was 44 years old in 1891.
41 Id. at 28.
42 Van Vollenhoven, Aceh, supra note 2, at 122.
43 PETER BURN,T HE LEIDENL EGACYC: ONCEPTOSF LAW IN INDONESIA1 (2004).
44 Van Vollenhoven, The Element of Adat Law, supra note 2, at 20.
45 Id. at 20-21.
46 Id.
47 Id. at 28-29.
48 C. Fasseur, Colonial Dilemma, Van Vollenhoven and the Struggle of between Adat Law and Western Law in
Indonesia, in THE REvIvAL OF TRADITIONIN INDONESIAPNO LIICS: THE DEPLOYMENTO F ADAT FROMC OLONIALISMTO INDIGENIS54M ( Jamie S. Davidson and David Henley eds., 2007).
49 Van Vollenhoven, Aceh, supra note 2, at 122.