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
SUMMARY

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... (see full summary)

 
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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 Sharia 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-Quran, 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-Quran). 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 adatin this paper the author will use the term
adat lawinstead 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 Vollenhovens 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.

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