In a 1956 address entitled "Reflection on Law - Natural, Divine and Positive," JN-D. Anderson draws attention to the confrontation between customary law and Islamic law as it is found in some Muslim countries:
" .... nor is the field of possible conflict limited to that between the new outlook which now prevails in the orient - whether regarded as 'Western or as founded on natural law and the fundamental rights of man - and the retigious or divine law. Another fertile source of conflict is between customary law and divine law, as exemplified, for instance, in those Muslim communities - whether in Afiica, Malaya (Malaysia) or Indonesia."
This perception of the issue is quite understandable, since many Western scholars continue to view Islamic law and customary law as separate systems which cannot be reconciled. As a consequence, they tend to adopt contlicting approaches to the subject. Indonesia has dso expenenced this problem in the administration of adat and Islamic law. Much of the discussion concemuig the encounter between the two systems of law in Indonesia has been infiuenced by the conflicting approaches. The conflict between local customary Iaw and Islamic law experienced in bfinangkabau3 is pointed to by sorne scholars as a clear indication of the etemal conflict between Islamic Iaw and customary law. It is this contradiction that causes Bousquet to descnbe the Minangkabau case as a clear example of "a remarkable paradox in the sociology of Islam."
This cornmon beiief, however, does not reflect the reality of Indonesian society, wherein Islamic law and customary Iaw are able, for the most part, to coexist. Recent studies on the encounters of the two systems of law indicate that, histoncdy, there have been consistent attempts to accommodate both customary law and IsIarnic law? These attempts at reconciling the two systems, both in practice and in theory, are manifestation of the general desire to accommodate traditional Indonesian legal practice. A current example of such reconciliation can be given here. In article 209 of the Compilation of Islamic law (Kompilasi Hukum Islam) in Indonesia the adopted child and the adoptive parents are both considered legatees of the obligatory bequest (wasiyah wajibab). This enactment is different fiom the ciassicai theory of Islamic law which States that the bequest is due ody to close relatives who had a blood relationship with the praepositus. The difference is understandable when seen from the point of view of adat law in Indonesian society, a law which does not regard adoption as a hindrance to inheritance. Here we see a clear example of Indonesian customary law influencing the Islarnic law of inheritance.
Muslim jurists from the classical penod considered the problem of the influence of customary law on Islamic law Although they did not recognize custom as an independent source of law, some jurists recognized the efficacy of custom in the act of interpreting the law.' In Islamic legal rnethodology (usul al-fiqh), custom ('urf or adah) is accepted as one of the sources developed from ra 'y in addition to qiyis, istihsan, and istislah. In other words, customary Iaw has a place in Islamic law as long as it does not transgress the divine sources, i.e., Qur 'Zn and hadih.
In the case of Indonesia, writings on the subject faiI into two major groups, Le., works dating from the time of the colonial eral' and those written in the national era. Whereas the former consistently portray the relationship of adat and Islamic Iaw as the scene of never-ending battles, the latter depict this relationship as a harmonious encounter. Moreover, works falling into the second category fail in most cases to consider the Islamic legal viewpoint in their approach to the subject. To make matters worse, little seriou work has been done on developments in Indonesia since 1980.
This thesis will, therefore, investigate the relationship between adat and Islamic law in hdonesia today. The main objective of the thesis is to offer as a hypothesis the idea that the encounter of Islamic law and customary law should be seen as a dialogue and not simply as a confrontation. To this end, the study will be devoted mainly to a discussion of the adat Iaw system and its relationship with lslamic law in Indonesia before and after independence. The thesis will consist of three chapters. As a generai preview to the reader, the first chapter will discuss primarily the concept of adat in usul al-fqh. The chapter will begin with an analysis of the position of local customary law in the development of Prophetic legislation and in the legal practice of the Cornpanion. It will then go on to deal with the opinions of the Islamic schools of Iaw conceming the vaiidity of customary law.
The second chapter will be devoted to the relationship of adat and Islamic law in the colonial era of Indonesia. This chapter will deal mainly with the behaviour of the Dutch toward adat and Islamic law as the two coexisting legal system in the archipelago. The legd situation under the Japanese occupation is also discussed in this section. The last chapter will focus on the encounters between adat and Islamic Iaw since Indonesian independence. The developrnent of the legal policy since the emergence of the new nation state of Indonesia is necessarïly outlined prior to the discussion of three topics which may be regarded as primary examples of the encounter of the two systems of law in modem Indonesia. These three topics are: (1) conditional repudiation (ta'liq talaq); (2) the institution of common propeq in marriage; and (3) the adopted child and adoptive parents as legatees of obligatory bequests (wasiyah wajibah).
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