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Indonesian Customary Law and European Colonialism:A Comparative Analysis on Adat Law
By Zezen Zaenal Mutaqin**
1. Introduction
My first encounter with the complexity of the term 'adat mediated through Islamic
PLecturer at the Faculty of Shari'a and Law, the State Islamic University ( UIN") Syarif Hidayatullah, Jakarta;
Researcher at Lembaga Survei Indonesia (LSI'), Jakarta. LL.B (UIN Jakarta), LL.M (Melbourne). The author may
be contacted at: zmutaqin14@gmail.con / Address: Fakultas Syariah dan Hukum, UIN Jakarta, JI. H. Djuanda No.
59 Ciputat.
jurisprudence. As I was a student at pesantren (Islamic boarding school), studying
Islamic jurisprudence was mandatory. For anyone who has learned this subject, the
term 'adat must be very familiar. It is one of the many sources of Islamic law. The
ultimate source of law in Islam, no doubt, is Al-Qur' an, a holly text from which Muslim
jurists extract laws. Because Al-Quran does not contain any concrete rule and contains
mainly general principles of value and morality, however the possibility for other
sources of law to rise is open. Along with ijtihad (rational reasoning) and ijma
(consensus), adat stands in Islamic jurisprudence as an important source of law so long
as it does not contradict the primary source (Al-Qur' an). In this last regard, there is a
common saying that: 'al- 'adah muhakamah' (adat could become law).1 The whole
complexity of learning Islamic jurisprudence would, for me, later prove to be very
important to the studies of adat in an Indonesian law context.
Analyzing adat law (adatrecht/hukum adat-in this paper the author will use the term
'adat law' instead of its Dutch term 'adatrecht') is not an easy task. Not only do we
have to deal with a massive and long intellectual tradition made both by jurists and
social scientists, but also should we account for a range of diverse systems of adat law. If
we take a classification of adat laws, for example, made by Cornelis Van Vollenhoven,
we have to deal with nineteen areas of law or 'jural communities' 2 such as adat Aceh,
Minangkabau, Central and East Java, Sundanese (West Java), Minahasa, Moluccas, etc.3
Under these circumstances and in my opinion, if we strictly hold comparative legal and
'intellectual policy,' no single scholar, even if he is an Indonesian, can be an expert of
adat law. He or she must be an expert of a particular adat law like, e.g., adat law of Aceh,
Moluccas or Java. The reason being that no one can speak nineteen languages and
understand all social and cultural aspects embedded in it. In this regard, I want to say
that adat is a part of me and not 'the other.' However, it has also simultaneously become
part of 'the other'.
Adat law is a kind of "Indonesian customary law." However, the matter is not as
clear and distinct as that. Adat in Indonesian context always comes with an attribution; it
can be adat Sunda, adat Jawa, adat Aceh, adat Minagkabau, adat Sulawesi, etc. There is
no such thing called 'adat Indoensia.' The reason is because not only was adat as a legal
discipline established by Dutch scholars long before Indonesia was created as a nationstate,
but also because these adats essentially always take part in and integrate with diverse ethnicities and 'nationalities' in the archipelago. Imagine if the Dutch never
came to the archipelago, these ethnicities would probably have become independent
nation-states with their own adat law. Born in West Java and thus being Sundanese, I
have my own language which is totally different from, e.g., Padangese of Minangkabau
in the West Sumatra, or Aceh language or even Bahasa Indonesia (Indonesian national
united language). I have my own adat law (adat Sunda). Because of that, adat Aceh or
Celebes or Minangkabau is 'the other' for me. So, in this regard, whether adat law is the
other for me is a matter in question.
A more thought provoking question relates to the foreignness of adat law. Is adat
law really Indonesian? Some scholars argue that, in fact, adat law was a Dutch creation.4
It was invented by Dutch scholars; its courts were established by Dutch colonial
administration; it was used by Dutch judges to make decisions and all material related
to adat was, initially, written in Dutch.5 It also, finally, becomes less important following
the abandonment of all Dutch colonial officers from Indonesia in the late 1940s.
However, in its development, adat would later regain its roles and influences on the
contemporary Indonesian legal system especially on municipal law.
Realizing that the topic is very complex, my essay will only focus on adat law and its
relation to the issue of legal unification. Indeed, adat law was 'created' as a response to
the proposal of legal unification planned to be implemented in the colony. However,
because the very origin of the term 'adat' and its initial discovery, discussing adat and
its relation with the colonial policy on Islam in the Netherland East Indie ("NEI") is
unavoidable.
In this context, the author should uncover the reason behind choosing this topic. The
debate about legal unification has recently gained intense concern in comparative law.
The debate relates not merely to the controversy of legal unification (mainly in the
context of merging European countries), but also gone deeper to philosophical and
methodical questions: how should I face 'the other?'; is comparative law dedicated to
finding sameness and become a tool of legal unification?; are there any common
structures lying on the bottom of legal differences? 6 In this debate, two schools of
thought or, weltanschauungs, stand in opposition to one another. The positivist school is
a proponent of legal unification; positivists believe that comparative law should be dedicated to unearth similarities for the sake of legal unification. There is a common
structure lying at the bottom of national-legal differences, the argument goes, which
allows for the law to be transplanted from one culture to another.7 On the opposite side,
the culturalist school of thought argues that comparative law is meant to celebrate
diversity and differences. It views legal unification as impossible, essentially and not
politically, and considers that comparative law should be dedicated to understanding
differences in the other without any pretention to reduce them to be part of 'us' as well
as to respect the other. It views the fusion of 'I' and 'the other' as impossible and
consequently, transplanting law is not realistic.8 |
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1 For details on the principle of Islamic Jurisprudence, see MD. HASIM I{lMALI, PRINCIPLE OF ISIAMI JURISPRUDENCE
(1991).
2 This was a term translated from Dutch term rechtegemeenschappen J. F. Holleman uses this term in his translation
of Van Vollenhoven's works. See VANV OLLENHOOVNEIN N DONESIAADNA TL Aw (J. F. Holleiman ed., J. F. Holeman et
al. trans., 1981).
3 Cornelis Van Voilenhoven, The Law Area, supra note 2, at 41-53.
4 DANIELS . LEV, LEGALE VOLUTIONA ND POLITICALA UTHORITYIN INDONESIA20 (2000). See also PETER BURN,T HE LEIDEN
LEGACYC: ONCEPTOSF LAW IN INDONESIA(2 004); HARRYJ . BENDA,T HE CRESACNEDT HNE TRIS ING SuN 67 (1958); M.A.
Jaspan, In Quest of New Law: the Perplexity of Legal Syncretism in Indonesia, 7 ComP. STUDI. NS OC'Y& HIST. 252
(1965).
5 Id.
6 Pierre Legrand, The Same and the Different, in CO\PAIRTIVE LEGALS TUDIES: TRADITIONSA ND TRANSITION2S4 0
(Pierre Legrand & Roderick Munday eds., 2003).
7 For details on this school, see KONRADZ WEIGERT& HEIN KOTZ, AN INTRODUCTIOTON COMPARATIVLEA W 1-62 (Tony
Weir trans., 3rd ed., 1998).
8 This may be found everywhere in Legrand's essays and other culturalist scholars. See, e.g., Pierre Legrand, The
Impossibility of Legal Transplants,' 4 MAASTRICHJT. EuR. & Comp. L. 111 (1997); On the Singularityo f Law, 47 HARV.
INT'LL . J. 517 (2006). For details on the culturalist stance, see supra note 6, Essays. |
