Sources of law and legal traditions

the sources of adat law and Islamic law since these cannot be state law? Later, how state law relates to adat law and Islamic law will be outlined.

3.1 Sourcesof adat

Adat is an Arabic word (ddah) meaning custom or habit.

Before the arrival of the Dutch, most adat law was oral, though there were written adat documents in some parts of Indonesia, for example, Bali. The adat obligations were phrased as general principles (as their oral character would require) and therefore there was flexibility in their application. The obligations and rights (though the emphasis was on obligations) were not absolute but were mediated in the community. Most adats would set out obligations very informally and not systematically. These obligations affected all fields of life without distinctions between law and morality, or law and religion. M B Hooker wrote that there were, however, some almost constant characteristics in most adat:

1. Specific obligations were often determined by genealogical relationships.

2. The community had greater rights over land than the individual.

3. There were obligations of mutual help (tolong-menolong) and community service (gotong-royong).

4.

As the sources of adat law were in community traditions, the lawwas informal and the state and formal institutions played no role in it. In some parts of Indonesia, adat was influenced by other traditions. To this day, Javanese adat has been greatly influenced by Buddhism and Hinduism which were in force in Java before the arrival ofIslam. Even though the vast majority ofJavanese today are Muslims, their adat continues to be influenced by earlier traditions. Not surprisingly, Balinese adat is heavily influenced by the Hindu tradition. Some adats remain heavily influenced by indigenous and animistic traditions, notwithstanding the arrival of other legal traditions and religions. For example, the Minangkabau (in and around Bukit Tinggi and Padang in Sumatra) have a matrilineal adat which means that land and property pass from mother to daughter, not from father to son, notwithstanding the fact that they are Muslims and that, in other respects, they follow Islamic law.

The advent of a Western state introduced by the Dutch changed the nature of adat law, a fact that is continued by the Indonesian state today.

3.2 SourcesofIslamiclaw

Islamic law, or Sharia in its English transliteration, does not have its source in any state law but in the Quran and the Sunnah, which is derived from the sayings and life examples of the Prophet Muhammad. Although there was no clear separation between state and religion in early Islam, as the Prophet was both a religious and political leader,^[789] there was an inchoate division between the law and the state - the law was God's law, sometimes God's very words in the Quran, sometimes the Prophet's explanation of what God required (the Sunnah) and sometimes further interpretations of God's law by legal scholars. One thing Islamic law was essentially not was state law. The ruler (the state) could of course make some rules (for example, through qanun)^[790] on matters such as taxation and defence, but these rules had to be consistent with the Sharia as the state was not above the Sharia, and in a sense, the ruler and the state where subject to the rule of law.

The sources of Islamic law are many.^[791] Of course the Quran, being for Muslims the very words of God, is the first and the highest source of law, but most of the Quran is not about law and much more detail about the law was needed by the Muslim community than what was given in the Quran. In the Sunni tradition, followed by almost all Indonesian Muslims, other sources are recognised. The second source is the Sunnah (hence the name �Sunni Islam') which is the sayings, actions and practices of the Prophet Muhammad. What the Prophet allowed is allowed and what he prohibited is prohibited. The third source is ijma or consensus and there is agreement among Sunni schools of law that consensus is a source of law but disagreement as to how one is to reach a consensus (for example, those who should be included in the consensus: scholars only or the whole community or ummah). The fourth source is qiyas or analogical deduction or reason. Finally, a more controversial source oflaw is ijtihad, or the independent interpretation through reason as opposed to taqlid, which reduces the role of the interpreter to one of imitation. Sunni Islam did hold that ijtihad was one of the sources of Islamic law but there is a debate as to whether the door of ijtihad has been closed, a debate which continues to take place in Indonesia today.^[792]

There is great diversity in Sharia - there are different schools of law (madh’hab) which disagree on the content of Islamic law but which respect one another - a Muslim, for example, can decide to belong to this or that school of Sunni Islam. Indonesians, however, overwhelmingly follow the Shafi’i school, as do most SoutheastAsians.

Indonesian Muslims can seek a fatwa or opinion from an Islamic legal scholar on an issue of Islamic law. While these are not legally binding, they can be very persuasive, particularly if coming from a reputable scholar. In Indonesia some Muslim organisations, notably Nahdlatul Ulama and Muhammadiyah, issue fatawa through a collective effort in the name of their council of ulamas (Islamic scholars).²⁶

The Dutch introduced the modern state to Indonesia, and how the state relates to Islamic law in Indonesia is discussed below (see under �The state and Islamic law' below).

3.3 Sources of state law

This section will focus on the extent to which oneof the sources oflaw in Indonesia is the civil law tradition which it inherited through the application of colonial Dutch laws and methods. Dutch law has been the most important influence on Indonesian law - the Dutch colonised most of what is known as Indonesia today. It should also be pointed out that Dutch law, especially as it stood before Indonesia’s independence, was part of the French civil law tradition - the Dutch Civil Code, for example, was, at the time, for the most part, a translation of the French Civil Code with some modifications. French law is itself part of a larger civil law tradition to which both Dutch and French law belong, and to which, to some extent, Indonesian law still belongs.

Dutch laws in place at the time of Independence were continued by clause II of the Transitional Provisions of the original Constitution of 1945 until amended by the legislature. This Dutch colonial heritage means, for example, the Civil Code which still regulates commercial contract law in Indonesia continues in Dutch only (translations published in Indonesian are still unofficial). The Civil Code and the Commercial Code have, to a large extent, been �decodified’ as large portions of each have been repealed through statutes such as the BasicAgrarian Law which took immovable property law out of the Civil Code, and the company laws which took the incorporation of companies out of the Commercial Code. This decodification is understandable as amending a code which is in Dutch is an impossible task for the Indonesian Parliament, both linguistically (since members of Parliament nowadays rarely understand Dutch) and politically.

The civil law heritage nonetheless survives. WhenAdministrative Courts were created in 1986 (see below), the Indonesian Government followed a Dutch model. When the Constitutional Court was created in 2003, Indonesia adopted

26 Nadirsyah Hosen, �Collective Ijtihad and Nahdlatul Ulama', NewZealandJournal ofAsian Studies, vol. 6, no. 1,2004, p. 5.

a �civil law' model of constitutional review. The courts in Indonesia and the pro­cedure in these courts remain consistent with the civil law tradition. Therefore, in many respects, Indonesia participates in the civil law tradition.

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