Thailand Law Journal 2012 Fall Issue 1 Volume 15

III. The European Origin of Adat and the Colonial Policy

A. Historical Overview
Unlike Hurgronje who spent more than ten years living in Indonesia to investigate his object study, Van Vollenhoven made only two short trips to Indonesia (in 1907 and 1923) during his life. Even though Daniel S. Lev was worried that Van Vollenhoven
"may have not fully understood the underground social and political tension of the racial mix" ⁶⁹ in Indonesia due to the lack of living experience there, no one would put to doubt his dedication in studying adat law. He spent his entire intellectual life to read, analyze, summarize and write on adat law based on available data that for decades were gathered in Leiden University by colonial officers, scholars and travelers. Van Vollenhoven, as Van Ossenbruggen has noted, has elevated adat law into a scientific position with a fascinating influence both to the intellectual milieu and political situation at his time.⁷⁰

However, for the author, this fact is really interesting. The spatial distance separated him from the reality of actual adat in the NEI, has led me to a few questions: is adat law Indonesian?; did Van Vollenhoven elevate adat to a scientific position for the sake of Indonesian people or for the interests of his colonial government or even simply for the sake of intellectual satisfaction? Despite all the motives behind it, several things are clear that the formulation of adat law took place: in the Netherlands; in the background of intellectual milieu of European legal tradition; in Dutch universities; and presented mainly for Netherland audiences. Even though in the later time some Indonesian legal scholars or Dutch scholars who settled in Indonesia like Ter Haar participated in formulation of adat law discourses,⁷¹ native Indonesians remained in a peripheral position and mainly only became a spectators or even objects of adat law study. Thus, it is then necessary to look into European legal history to see adat law. This historicity influenced the way Van Vollenhoven analyzed his object study and formulated his own theory of adat law. To begin with, historical precedent that influenced so much the formulation of adat law theory took place throughout Europe as the consequence of the Enlightenment in the late eighteenth century. Enlightenment brought about a new way of seeing reality in which human beings no longer relied on the authority of a supernatural reality (God).

Reason became the main anchor for all aspects of human life. Politics, economics, philosophy, culture, religion and also law became the object of human rational criticism. The effect of Enlightenment on law was also fundamental. Ecclesiastical laws were replaced by natural law before finally reached its form of positivism. Roman law which during the Middle Age spread throughout Europe, had developed to be more distinctive from its original root. It was also more diverse in its uniqueness due to the different circumstances and cultures where it grew. The way of usus modernus Pandectarum (articulation/interpretation of the Roman law based on local-customary law) led to the direction of creating new legal institutions and formulating a more
systematic law.⁷² One of the most important products of the enlightenment was legal codification. Codification began from an assumption that the diverse unmanageable ancient laws could be replaced by a comprehensive and intentionally planned
legislation under the auspices of reason.⁷³ Bavarian Code, Codex Maximilianeus Bavaricus Civilis, appeared in 1756, while Prussia produced its own code, Preussisches Allgemeines Landrecht with its 19,194 paragraphs, 40 years later in 1794 after nearly a century debate and preparation.⁷⁴ The codification of the French Civil code, known as the Napoleon Code in 1804, was the landmark of the codification movement in this era. This was a revolutionary effort to reconfigure post-Revolutionary French society through a comprehensive revision of the law.⁷⁵

However, towards the early nineteenth century, the path of rational optimism that was generated by the Enlightenment was struck by a new wave of pessimism to the power of reason. Isaiah Berlin called it the counter-Enlightenment movement in which he identified Giambatistta Vico, J.G. Hamann and J.G. Herder as the three main critics of Enlightenment.⁷⁶ The other author identified three distinct strains of critics to the Enlightenment: Conservatism (included here Historical School of Jurisprudence), German Romanticism and French Revolutionaries.⁷⁷ Emphasizing different flaws in the Enlightenment, all these critics were bound by a similarity, i.e., the return of non-reason elements into the stage of European intellectual landscape. This Romantic movement came along with a strong believe to 'irrational power' of human life as can be seen from concepts that they utilized like 'people,' 'development,' 'soul,' 'feeling,' and 'sensibility.'⁷⁸

B. German Tradition of Counter-Enlightenment

It was Anton Thibaut, a professor at Heidelberg, who enthusiastically proposed the idea of civil code unification for Germany. ⁷⁹ In 1814, illuminated by the spirit of the Enlightenment project, Thibaut published his leaflet entitled, On the Necessity for a
Common Civil Law for Germany with optimism that the moment was the right time to unite all small German states.⁸⁰ A year earlier, in 1813, the Rhine German Confederation, the confederation of thirty-nine German princes under Napoleon, where
it had lasted since 1806, disintegrated into independent States. This was a good opportunity, Thibaut saw, to bring about a political union by means of a "simple national codification, developed in German Spirit with German strength."⁸¹ The French
Napoleon civil code should be replaced by a common civil law of Germany.

Similar to what would be carried out by Van Vollenhoven around 50 years afterwards in Holland in response to the proposal of civil code unification of the NEI, Carl Von Savigny opposed Thibauf s proposal of German civil code unification. While
Thibaut was in the line of Enlightenment tradition, Savigny carried on the tradition of the counter-Enlightenment. Savigny published "On the Vocation of Our Time for Legislation and Legal Science(Vom Beruf Unserer Zeit Fur Gesetzgebung Und
Rechtswissenschaft 1814)" only a few months after Thibaufs pamphlet appeared to the public.⁸² This was Savigny' s immediate response to the proposal of codification. However, as Susan G. Gale has mentioned, On the Vocation was not merely polemical response to the Thibaufs ideas, but it also contained the basic tenets of the Historical School of law.⁸³

69 Suporno & Djokosutono, supra note 51, at 63.
70 H. W. J. Sonius, Introduction, supra note 2, at L.
71 Ter Haar was Van Vollenhoven's disciple who lived in Indonesia and taught at Law School in Batavia (Jakarta). See
B. TER HAARA, DATL AWIN INDONES(GIAeo rge C.O. Haas & Margaret Hordyk trans., 1948).
72 KONRADZ WEIGERT & HEIN KOTZ, AN INTRODUCTITOON C OMPARATIVLEA W 133-139 (Tony Weir trans., 1977).
73 Id.
74 Susan G. Gale, A Very German Legal Science: Savigny and the HistoricalS chool, 18 STANJ. . INTL L. 127 (1982).
75 Id. at 127-128.
76 ISAiAH BERLIN, THREE CRITICSO F THE ENLIGHTENMEVNITc,o , HAMMANH, ERDER (Henry Hardy ed., 2000).
77 STEVENS EIDMANL, IBERALISMA NDT HE ORIGINO F EuRoPEAN SOCIALT HEORY5 2-73 (1983).
78 Supra note 72, at 139.
79 Id. See also supra note 74, at 128-130.
80 Supra note 74, at 128-130.
81 Id.
82 Id.
83 Id.