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When Idenburg carried on the dream of Enlightenment by submitting his proposal
of the legal unification of the NEI to the parliament, Germanic historical debate on
codification found its complete resemblance. Van Vollenhoven, like Von Savigny,
reintroduced the counter-Enlightenment arguments.98 Van Vollenhoven followed his
German predecessor in defending customary law (adat) against the intrusion of foreign
(Western but also Islamic) law. He exalted custom over codification. He believed that
law should grow organically from the root of local culture gradually, from a simple
customary law to a more developed legal system.99 Introducing or 'transplanting' the
Dutch 'hand-made' law would harm the society and brought about the chaotic
situation. Dutch law was foreign and had no social and cultural basis for Indonesian
people. Because of that, civil code unification would be harmful to the society, Van
Vollenhoven alerted, and it would give Islamic law an opportunity to take over the
prevailing law in Indonesia.
D. Savigny vs. Vollenhoven
A major difference between Von Savigny and Van Vollenhoven should be presented
here. Savigny's writings are not free from contradictions. While his goal to cultivate law
from historical processes of spirit of the German people is clear, his main interest in
Roman law to find its purest form through a historical method has led us to confusion.
Hermann Klenner called it a contradiction between the theory and methodology of
Savigny.100 His theory, saying that law is a living norm and grows organically from the
root of spirit of the people through gradual processes of history, seems to contradict his
methodological recipe to investigate and find the purest form of Roman law.101 Savigny,
however, had emphasized that studying Roman law was simply a method to help
German jurists understand and develop their own law.102 But the contradiction between
his theory and method is quite clear, as can be seen from the rise of two frictions within
the Historical School of Law. The two frictions between the Romanists and Germanics
engaged in a debate concerning the advisability of the Reception of Roman Law.103
Germanic faction' s main critics said that the jurisf s concern on the investigation of the
Roman law had prevented them to contact with their German volk law. German
teutonic tradition became alienated and ruined its land due to the preoccupation of the
jurists to investigate the "foreign Roman law."104 Van Vollenhoven was a part of this
faction. Apparently, however, he did not want to do the same mistake like Savigny. He
defended adat law from the contamination of foreign elements (both the Dutch law and
Islamic Sharia law). He received only the insightful theory of Savigny in dealing with
the conception of law as a product of an organic development of a nation and put aside
Savigny' s method.105
E. Summary
The author would conclude this part by mentioning a heartbreaking side of the story.
Both Savigny and Van Vollenhoven were successful not only in killing the idea of legal
codification for their times (Thibaut's proposal in Savigny's era and Idenburg's
proposal in Van Vollenhoven s time), but also in establishing the influences afterwards.
However, their idea of anti-codification did not last long. After Savigny' s retirement, the Romanist faction which was identical with Savigny' s faction devoted their concern on
the systematization of Roman legal axioms by analyzing closely the Digests of Justinian,
known also as Pandekten. They attempted to form a "system of classification which
would not only aid lawyers in finding the applicable law for a given set of facts, but
would also suggest the correct solution to new cases."106 A border line that separated
the Historical School of Law from the Natural law ideas became blurred in the hand of
Pendactists. No more than fifteenth years after Savigny' s death (1861), triggered by this
intellectual development and pragmatic political situations, in 1874, a commission of
eleven members, consisting of judges, politicians and legal scholars, were authorized to
prepare a draft of German civil code. After several years of debates, this draft was
finally adopted on August 18, 1896 and came into force on January 1, 1900.107
Almost similarly, Van Vollenhoven' s story followed this path. The killers of his ideal
dream of the formulation of a genuinely Indonesian law, tragically, were his Indonesian
students who later became the political and intellectual leaders.108 The Dutch colonial
legal policy, with a special treatment for adat, remained similar until the last day of the
Dutch occupation. After the independence in 1945, Indonesian legal scholars as well as
Indonesian founding fathers were in a dilemmatic situation to choose between the
unifying Western legal tradition and adat law. Ironically, the former option was in their
favor.109 The opposing view of Van Vollenhoven which was ironically highly colonialist,
as M.B. Hooker notes, has prevailed in Indonesia after the independence.110 Indeed, the
desire for legal unification in Indonesia, as someone has mentioned, had begun to rise
since 1928 when a members of the NEI Volksraad (a representative assembly with only an
advisory power created by the Dutch) observed that: "The admiration of adat law is to be
found more among Europeans than among Indonesians."111 Daniel S. Lev's essay,
Judicial Unification in Post-colonial Indonesia extensively discusses the reasons and major social and political situation toward the legal unification in Indonesia from the
late Dutch colonialism to the post-independent era of Indonesia.112 For Lev, major
impetuses to legal unification, not only in Indonesia but also anywhere in post-colonial
states, have been ideological and political.113 Immediate reaction against the racial
divisive colonial policy as manifested in the Dutch colonial legal system which, in
Indonesian context, differentiated unjustly 'civilized' Europeans to 'uncivilized'
natives was the desire to abolish it. Unification promised equality among the people.
This sentiment met with a situation where the political and intellectual elites were
inspired by the promise of modernization and political integration.114 Legal unification
in this regard, was a necessary step. Furthermore, politically, legal unification was the
main tool to establish political authority over the new State, which was usually unstable
and diffuse. Colonialism, as it was in Indonesia, came with separatist and regionalist
policy. It not only recognized the existence of tribes and its leaders, but reinforced and
separated them.115 In the beginning of independence, these local leaders challenge the
leadership of the vulnerable and weak new national leaders and they were not
voluntary willing to transfer their local authority for the sake of the larger national
interests. Thus, without legal unification the dream to unite these fractions politically
would be even harder. |
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98 For this account, see Garry F. Bell, Multiculturalism in Law is Legal Pluralism: Lesson from Indonesia, Singapore
and Canada, SINGJ. . LEGASLT UD3.2 4 (2006).
99 See Part II.B of this paper (FN 4147).
100 Hermann Klenner, Savignys Research Program of the Historical School of Law and Its Intellectual Impact in 19th
Century Berlin, 37 AM. J. Comp. L. 67-80 (1989).
101 Id.
102 Supra note 74, at 142.
103 Id. at 140-143.
104 Id.
105 Supra note 43, at 236-237.
106. Supra note 74, at 144-145.
107 Id.
108 Supra note 50, at 64.
109 Supra note 48, at 63. See also R. SOEROJOW IGNJODIPOERSO.H, , KEDUDUKANSE RTA PERKEMBANGAN HUKUMA DAT
SETELAHK EMERDEKAA(NTH E POSITIOANN DD EVELOPMENOTF A DATL AW AFTERI NDEPENDENC8E0-)8 2 (1983).
110 M. B. HOOKER, LEGALP LURALISM: AN INTRODUCTIOTNO COLONIALA ND NEO-COLONIALLA w 283 (1975). Although
Hazairin himself was an Adat Law professor, he mainly opposed the idea of reception theory in adat law saying that
Islamic law could not be applied unless it has been integrated into adat. He said that this kind of theory is teori iblii
(theory of the devil). See HAZAIRINH, UKUM KELUARGAN ASIONAL(N ATIONALF AMILYL AW) 7-10 (1982). For his strong
opposition to Adat Law, see TUJUHS ERANGKATI ENTANGH UKUM (SEVEN SERIESO N LAW) (1974), & PERGOLAKAN
PENYESUAIAAND ATP ADAH UKUMI SLAM( THE UPHEAVAOLF ADATA DJUSTMENTTO ISLAM)( 1952).
111 I. H. Cassutto, Het Adatrecht van Nederlandsch-Indi6, zijn Waarde voor het Heden en voor de Toekomst, supra note
48, at 63. The ultimate goal of almost all Indonesian legal scholars is to find the best formulation of national codified
law. Adat, which is particular and unique in its nature, was also subjected to a new interpretation to find "miversal value
of adat law" for national integration through legal unification. See Wignjodipoero, supra note 109, at 40.
112 Daniel S. Lev, Judicial Unification in PostecolonialI ndonesia, 16 INDONES1I-3A7 (1973).
113 Id.
114 Id.
115 Id. |
