Thailand Law Journal 2012 Fall Issue 1 Volume 15

These two reasons, the concern on the threat of Islamic law⁵⁰ and the influence of European romanticism, in my opinion, were the main foundation of Van Vollenhoven' s opposition against the idea of unification of civil code for all populations (both native
and westerners) who lived in the NEI that arose in the late nineteenth century.

Before we continue to discuss the debate on unification of the civil code and knowing Van Vollenhoven' s response to it, the author need to mention briefly the sociopolitical situation in the colony at that moment. This could be the right way to understand why Van Vollenhoven tended to admire and support the native interest despite the fact that he was part of the colonial government.

An indebted feeling to its colony highlighted the last four decades of Dutch colonialism in Indonesia. However, it was not until C. Th. Van Deventer published his essay in De Gids, the most important periodical at the time, that this debt of honor became a political movement. Van Deventer, according to Peter Burn, in his essay, "A Debt of Honor" argued that after long period of exploitation and extraction of the colony, the Kingdom of Netherlands in Europe had moral and financial obligation to develop his colony.⁵¹ In his essay, Bum calculated that Holland had unjustly extracted around 187 million guilders from its colony between 1867 and 1877.⁵² Without reformation of social welfare, economic and social aspects, disaster in the colony could
not be prevented. This liberal humanitarian vision finally gained wide political recognition. A new 'Christian Cabinef under the leadership of Abraham Kuyper had a commitment to reform the colonial policy. Ultimately, on September 17, 1901, the Queen of the Netherlands announced her commitment to modernize and develop the NEI under the umbrella of what later became well known as the Ethical Policy.⁵³

The author would note that though a liberal humanitarian movement initiated this ethical policy, the spirit of Christian missionary only transformed it to be a state policy. Abraham Kuyper s confessional ministry, in this regard, made a pledge that:

As a Christian state, Holland is obliged to suffuse its entire policy with a conviction of moral responsibility to the people of these territories, and in particular to improve the legal position of native Christians and give more tangible support to the Christian Missions.⁵⁴

In the 'milieu' of paying debt of honor to the colony, in 1904, a proposal for civil code unification was submitted to parliament by Idenburg, Ministry of Colony.⁵⁵ The Dutch colonial legal policy until then was marked by legal pluralism. Hooker notes that the process of legal conflict during colonialism, marked Indonesian legal history due to the fact that since the earliest day of the Dutch presence in the archipelago, judicial administration was designed to be plural in nature. The Dutch established different
tribunals for Europeans and Natives. The NEI constitution of 1847 classified the population of the archipelago into European and Native. The Chinese, Arab, and Indian inhabitants were included to the Native group until 1920. Article 163 of the 1920
amendment of the NEI constitution slightly changed the structure of legal grouping by separating the foreign Orientals (Chinese, Arab and Indian) from Native and enforced their own law. Adat law and the particular aspects of Islamic law were in force for the Native, while for Europeans Dutch law was in force.⁵⁶ Under these circumstances, the proposal of a unified civil code for all elements of the population was submitted to parliament.

In response to this proposal, two different reasons had emerged, both from liberal and conservative groups, to support this proposal. The first argument was based purely on a practical reason. Through unification, colonialism would have a more efficient tool for commerce and other economic business or even exploitation.⁵⁷ It also meant efficiency since a different tribunal would no longer be needed. The second and most important argument in supporting this bill came from liberal groups. Basically, the liberals argued that the only way to modernize the colony was by integrating it into European-Western system. Thus by this unification, Indonesians would be drawn into the "modem world of commerce and civil relation."⁵⁸ In this case, Van Deventer was one of the most important proponents of the unified and westernized civil code proposal. In his article that was published in 1905 in De Gids, Van Deventer said that although the nature of things might necessitate legal diversity, such diversity was not desirable.⁵⁹ This position would later lead to his opposition against Van Vollenhoven.

Behind all the argument of the civil law codification laid the assumption of positivism in which the law was seen as the creation of a legislator and derived its validity from the will of parliament. Because the NEI was a sovereign territorial State, legal unification which could be enforced for all the populations was necessary.⁶⁰

This argument was really convincing for many lawyers but not for Van Vollenhoven. It ignored the very basic plural characteristic of cultures, languages as well as legal systems of the NEI. "The fact of life"⁶¹ in the colony in which Java,
Sumatra, Moluccas had their own kings, institutions, laws, languages and cultures simply could not be easily replaced by a Dutch-made unified civil code. Even if the codification was preferred, it must reflect the cultural characteristics of the people. Van Vollenhoven who called this proposal the 'lawyers' law' insisted that the codified civil law simply be a dead letter regulation.⁶² He pointed out that Article 131 (4) of the 1854 NEI constitution that allowed a voluntary submission of the Natives to the European law in case of commercial transactions and contracts did not attract the Natives to take advantage of this opportunity. In West Borneo, he added, where the courts were competent to judge almost all matters of dispute, no single Dayak people came to the court to resolve their dispute.⁶³ They preferred to resolve their case through local customary law (adat law). Thus, "the fact of life" showed that adat law as living law was more effective and forceful in practice than an imported Dutch-made law.

By making law that grows in a particular culture as a primary to the hand-made law, Van Vollenhoven, as Hooker notes, has shifted the definition of law from a formal requirement to a sociological definition. Cultural contents and the functionality of law,
moreover, became a more important element of law than its legal formality.⁶⁴

In the same year of Van Deventer' s publication, Van Vollenhoven published his article, "No Lawyers' Law for the Indonesian,"⁶⁵ Criticizing the codification, he illustrated a proposal for 'lawyers' law,' as a dominating Roman law that would force all indigenous adat laws to submerge. He then argued that the "fact of life," the 'kaleidoscopic' Indonesian legal situation did not fit with the objective of the proposal.⁶⁶ The proponents of the proposal, in response to Van Vollehvoven' criticism,
modified the bill in favor of the indigenous laws through an amendment made by Van Idsinga.⁶⁷ However, until the end of the story, due to the convincing and influential arguments of Van Vollenhoven in defending adat law, the proposal was never put into operation in the colony.⁶⁸

50 Daniel S. Lev, Colonial Law and Genesis of Indonesian State, 40 INDONES5I7A-74 (1985).
51 Supra note 43, at 1. For an extensive reference in Indonesian language dealing with this specific issue, see generally
R. SuPoMo & R. DJOKOSUTONSoE, JARAHPO LITIKH UKUMAD AT( THE POITICAL HISTROOYF A DAT) 1848-1928, v. 2 (1954).
52 H. W. J. Sonius, Introduction, supra note 2, at XXXIII.
53 Supra note 44, at 1. See also supra note 52, at XXIX. For further discussions on ethical policy, see A. VANDENBOSCH, THE DUTCHE ASTI NDIES,I Ts PROBLEMSG, OVERNMENATN D PouTics 63-73 (1944).
54 H. W. J. Sonius, Introduction, supra note 2, at XXIX.
55 Id. at XXXIV.
56 For a brief but good description on legal pluralism in Indonesia, see M. B. HOOKER, A CONCISE LEGAL HISTORY OF SOUTH-EASATs IA 187-213 (1978).
57 Lev, supra note 50; Burn, supra note 43, at 6.
58 Supra note 50, at 64.
59 H. W. J. Sonius, Introduction, supra note 2, at XXXII.
60 The idea of legal positivism can be found everywhere in legal philosophy. See HEINRICH A. ROMMETNH,E NATURAL LAw 219 (1998).
61 Supra note 56, at 191.
62 Supra note 43, at 6-9.
63 Id.
64 Supra note 56, at 192.
65 In Dutch, the title is "Geen juristenrecht voor den inlander," in De XXe Eeuw, published on March 5, 1905, reprinted
in Het Adatrecht van Netherlandsch-Indie, v. III, at 22. See also supra note 2, at 271.
66 H. W. J. Sonius, Introduction, supra note 2, at XXXIV.
67 Id.
68 E. Adamson Hoebel & A. Arthur Schiller, Introduction, in ADAT LAW IN INDONESI1A2 (B. Ter Haar ed., George C.O. Haas & Margaret Hordyk trans., 1948).