Indonesian Customary Law and European Colonialism: A Comparative Analysis on Adat Law

• Author: Zezen Z. Mutaqin
• Position: Lecturer 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)
• Pages: 351-376

ARTICLE

Indonesian Customary Law

and European Colonialism:

A Comparative Analysis

on Adat Law

Zezen Zaenal Mutaqin



This paper argues that what Van Vollenhoven did in dealing with adat law was in

fact part and parcel of the colonial policy to exploit the colony for the benefit of the

Dutch and had nothing to do with being



a good Samaritan



by saving



the other



legal culture. What he did also was mainly triggered by what I refer to as cultural

anxiety. His campaign to promote adat law was intensified by his fear of the rise of

Islamic identity that would be used as a rebellious ideology by the people of Indonesia

to fight against the Dutch. Furthermore, I argue that Van Vollenhoven



s intellectual

background, heavily influenced by European legal romanticism, had intensified his

advocacy to promote adat law in Indonesia.

Keywords

Adat Law, Colonialism, NEI, Unification, Codification, Legal Pluralism,

Romanticism, Cuturalist, Legal Positivism

I. Introduction

My first encounter with the complexity of the term adat mediated through Islamic

KFBJM3)3122*  351

* Lecturer 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.com / Address: Fakultas Syariah dan Hukum, UIN Jakarta, Jl. 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 nation-

state, but also because these adats essentially always take part in and integrate with

352 

1For details on the principle of Islamic Jurisprudence,

see

M

D.

H

ASHIM

K

AMALI,

P

RINCIPLE OF

I

SLAMIC

J

URISPRUDENCE

(1991).

2This was a term translated from Dutch term

rechtsgemeenschappen.

J. F. Holleman uses this term in his translation

of Van Vollenhovens works.

See

V

AN

V

OLLENHOVEN ON

I

NDONESIAN

A

DAT

L

AW

(J. F. Holleman ed., J. F. Holleman et

al. trans., 1981).

3Cornelis Van Vollenhoven,

The Law Area, supra

note 2, at 41-53.