An Introduction to Islamic Law (19 page)

The Dutch began their occupation
of Java in 1596. Owing to the fact that they could not bring all or even most of the Indonesian Archipelago under their control until the second decade of the twentieth century, and partly because their interests were largely focused on commercial profit, the Dutch did not significantly interfere in native legal affairs until about the middle of the nineteenth century. As
D. Lev has aptly put it, the
Dutch East India Company from the outset “resolved to respect local law – another way of saying that, by and large, they could not have cared less – except where commercial interests were at stake.”
⁵

As “law and order” constituted the backbone of colonialist administration, the Dutch, after some failed efforts, finally succeeded in promulgating
a penal code for natives in 1873, a code whose implementation remained exclusively in their hands. Since the native district courts, as well as the Shari
a and
ADAT
(customary) courts, were allowed to handle only minor and non-monetary cases, all criminal cases and major offenses were tried at the next level, namely, at the
Landraden
courts, which also handled important civil cases pertaining to the natives. For example, all matters of
waqf
and the all-important area of inheritance fell within the jurisdiction of these courts. Until the 1920s, the chairmen of the latter were exclusively Dutch. But ultimate authority did not lie even in the hands of these chairmen, for appeals were heard at the
High Courts (numbering six in total), whose jurisdiction was presumably confined to the Dutch colonial settlers alone.

In 1882, the Dutch reorganized the Islamic courts (now called “
priest-courts,”
Priesterraden
), creating a collegial system whereby the Shari
a bench would consist of three magistrates (at times more). Serious criticism of these reforms forced the Dutch to create, in the 1930s, the
Islamic High Court to hear appeals from all the religious courts of Java
. A parallel system was established also in
Madura and
Kalimantan.

As the British did in India, the Dutch colonial administration of Indonesia called upon Orientalist scholars for assistance. One such Orientalist was
L. W. C. van den Berg, who published, in 1882, a
translation of a key Islamic legal text. This translation had an effect somewhat similar to those we have discussed in the context of British India, but the translation itself also implied a bias on the part of van den Berg himself. The Indonesian Archipelago had a dual, but mutually supportive, system of laws: Islamic law and the
adat
, the customary laws of the islands. Van den Berg’s
project essentially declared enthusiastic support for the position that the Shari
a, not
adat
, was the paradigmatic law of these islands.

Adat
law had originally existed in
oral form, and, despite the fact that it was in small part recorded, this orality remained one of its hallmarks. But orality had and still has – even in so-called “simple” societies of the present day – a function. Orality requires communal participation in, and understanding of, customary law.
Knowledge in this environment does not lie with a specialized class of people, such as
mufti
s or modern lawyers. Instead, it is knowledge of common behavior, perceived as such in relative terms by those upon whom it is incumbent to conduct themselves in a particular way. All in all, legal knowledge of this sort does not reside in an elite but rather is diffused in the community, although some, especially the
elders, may know it better than others. If no writing is required, then no commentaries are needed; thus, no commentators or jurists can become the locus of either legal or epistemic authority. The preclusion of writing therefore entails the exclusion
of codification, an essential tool of a centralized
state authority. The structure and constitution – or more categorically, the nature – of the
adat
depends on the crucial fact of its being in a state of orality, a state of fluidity. In its original form, then, the
adat
as a whole constitutes a state of affairs, a practice, a state of mind, a moral code and a way of seeing the world, but can scarcely be reduced to our modern notions of law, operating as the legal organ of a coercive state or even as that of a loving God.

Much like Islamic law,
adat
was not intended to apply to the letter, but represented a guide to proper conduct or a maximal limit to what could be tolerated by a particular, local community
. The writing down of some
adat
practices did not considerably affect their fluidity, for the record remained both partial and unofficial. It could no more, at any rate, have represented
an official law than any given Islamic legal manual. And so, under Dutch colonization,
adat
began to metamorphose, acquiring in the process different and unprecedented characteristics. Chief among these was an elision into
rigidity. Yet, it is not difficult to understand why the Dutch insisted on capturing
adat
in written form. Coming from the Continental legal tradition, the Dutch could not conceive of any unwritten law as law properly speaking, and if
adat
was to have any force it would have to be endorsed by the written law. Thus, to be so sanctioned,
adat
law had first to be identified and set down in writing.

Where India had its Sir William Jones, Indonesia boasted
Cornelius van Vollenhoven, an influential Dutch Orientalist specializing in “
adat
-law” – or what was by his time called “
adatrecht
.” Coined by the other stellar Dutch Orientalist
Christian Snouck Hurgronje, this field of study confirmed the legal duality that had been “discovered” by the Dutch. There is no indication that this duality was construed by the Malay peoples in oppositional terms; nor was the relationship between one and the other problematized. Rather, before the end of the nineteenth century,
adat
and Shari
a appear to have been viewed as complementary and intertwined. But Snouck’s “discovery” of
adat
, and van Vollenhoven’s elevation of the study of this discovery into a “science,” in effect opened a Pandora’s box within the political and legal life of Indonesia that has not been closed to this day
.

Hailing from a pedigree of Dutch scholars who viewed Islam as a threat (very much in the same vein as the French saw this religion and its law in Algeria), van Vollenhoven vehemently espoused the position that
adat
, not the Shari
a, should be employed to govern the pluralistic societies of the Netherlands Indies. Criticizing the proponents of Shari
a, he argued that
adat
exercised such a wide sway over the Archipelago’s population that Islamic law stood in comparison as both thin on the ground and virtually irrelevant. (Remarkably, all this knowledge he managed to garner from two, rather brief, visits to the colony.) He also espoused the view that any attempt at weakening
adat
was nothing less than an invitation to open the floodgates to Islam, a religion seen by van Vollenhoven and many of his compatriots not only as a native political tool of unification, but as the very religion that had threatened Christendom for centuries. Furthermore, to side with
adat
was to promote secularism, the new religion of Europe. Among other initiatives, he compiled an extensive work in which he committed to writing the otherwise oral
adat
, identifying eighteen versions of it, when in fact the archipelago consisted of over a thousand islands, each with its own version (or versions) of
adat
. The writing down of
adat
“violated a primary principle of
adat
law theory, that the
adat
lived in local tradition. Now, written, it lived in books, which
Dutch judges, and
Indonesian judges half a century later, used as if they were codes
.”
⁶