Dossier 22: Inching Toward Equality: Recent Developments in Indonesian Inheritance Law

Publication Author: 
Mark Cammack
Date: 
January 2000
Fichier attachéTaille
Word Document198.56 Ko
number of pages: 
168
ISBN/ISSN: 
1560-9677
Introduction

In recent years Islamic doctrine has assumed a more visible place in the Indonesian legal system. This trend arguably dates from the passage of the National Marriage Act in the mid-1970s, which for the first time gave explicit recognition to Islamic doctrine as state law. Its most conspicuous manifestations, however, have occurred since the mid-80s. In 1989 the Religious Judicature Act significantly expanded the system of Islamic courts, ended their subordination to the civil courts, and enlarged the courts' substantive jurisdiction. Two years later the government promulgated a code of Islamic rules, known as the Compilation of Islamic Law, containing rules governing marriage, divorce, inheritance, and charitable foundations.

The Islamization of Indonesian family law over the past quarter century seems to cut against other avowed legal policies of the period. State enforcement of Islamic legal doctrine undermines an asserted commitment to the development of a system of uniform national law based on the non-sectarian ideology of pancasila. Adoption of Islamic family law doctrine as state law also seems to contradict the government's stated desire to improve the legal status of Indonesian women. Basic elements of traditional Islamic family law, such as polygamy, unilateral divorce, and the rules of inheritance, treat men and women in a grossly unequal manner. The extreme gender inequality that characterizes Islamic family law offends, not only internationally recognized norms of basic human rights, but also, many argue, indigenous Indonesian values.

This paper explores the tensions created by the recent trend toward greater state enforcement of Islamic law by examining the effort to codify Islamic inheritance doctrine in the Compilation of Islamic Law. Although officially described as simply a compilation of restatement of existing doctrine, those in charge of the project, or some of them, saw in it an opportunity to reinterpret the Islamic legal tradition to bring it more closely into line with a conception of Indonesian inheritance practice. Related to the goal of achieving a synthesis of Islamic and Indonesian inheritance schemes was a desire to redress the inferior legal status of women in Islamic law. As conceived by the leaders of the project, Indonesian Islamic inheritance law would accord equal status to male and female relatives. This represented a significant departure from traditional Islamic doctrine, which generally grants male relatives a share twice that of female heirs. The primary justification put forward by the government in support of the proposal was that treating male and female relatives equally is consistent with Southeast Asian social realities and Indonesian legal sensibilities.

The debate over the proposal and the content of the final product reveal both the problems and potential of Islamic family law reform in Indonesia. For the most part, Indonesian Islamic legal thought at the grass roots remains highly conservative. The far-reaching reforms proposed by the government were ultimately not accepted. The Compilation as approved and implemented largely restates traditional Islamic doctrine. But the debates showed that the content of Islamic law and the premises of Islamic jurisprudence are by no means fixed. The new voices urging reappraisal of the received tradition are as noteworthy for their progressivism as the traditional forces are for their conservatism. While recent events bear witness to the enduring power of Islamic symbols, they also reinforce the lesson that the content of those symbols is highly variable.

Background

Controversy over the use of Islamic doctrine in the determination of the distribution of property on death has a long history in Indonesia (see generally Prins, 1951). Since at least the 1930s inheritance law has served as a focus of tension between legal regimes claiming legitimacy under the banner of universal Islam on the one hand, and legal understandings whose point of reference is a supposedly indigenous local practice, or "adat", on the other. Dutch legal policy promoted adat over Islam primarily because of fears about the political potential of Islam as a focus of native resistance against Dutch control (Benda, 1958: 68). That policy was reflected in the so-called reception theory, which holds that Islamic rules have the force of law only insofar as they have been received into the local adat (Lev, 1972: 196-197). The Dutch preference for adat over Islam also served as the impetus for a court reform carried out in the 1930s which stripped Islamic tribunals in Java and South Kalimantan of jurisdiction over inheritance (Lev, 1972: 16-29).

Independence introduced new considerations in the debate, but it did not alter the basic terms of the controversy of dramatically shift the balance of forces for or against state enforcement of Islamic law (see generally Lev, 1972: ch. 2, 3). Dutch political logic opposing Islam because of its unifying potential did not operated in reverse once the goal had changed upon the achievement of independence. Support of adat by the Dutch was intended to forestall the development of Indonesian nationalist sentiments, but the leaders of independent Indonesia did not perceive in Islam a means for cultivating national consciousness once that became the paramount political objective. On the contrary, the exigency of maintaining national unity in the face of powerful disintegrative forces seemed to demand a de-emphasis of Islamic law. That fact is forcefully illustrated by the failure of Islamic leaders to win approval of a constitutional provision recognizing an obligation to carry out Islamic law for Indonesian Muslims (Boland, 1982: 23-39; Lev, 1972: 41-43).

While tension between Islamic and indigenous legal regimes has been a constant in Southeast Asia, there have also been more or less constant efforts at synthesis or reconciliation. One effort to bridge the gap between Islam and adat, that is of particular relevance to the present topic, was that of Professor Hazairin, a scholar of both Islamic and customary low at the University of Indonesia, who achieved national prominence for his ideas in the 1950s.[1] Although Hazairin's views were too radical to win widespread acceptance during his lifetime, they defined the parameters of all future debates over national inheritance law reform, and helped lay the groundwork for developments in the 1980s.

Hazairin sought to transcend the tension between Islamic and indigenous legal systems by advocating the development of a distinctive body of Indonesian Islamic law (see Hazairin, 1962). His jurisprudential warrant for proposing such a change was Islamic legal modernism. The basic premise of legal modernism is that, while the primary sources of Islamic law - the Koran and the dicta of the Prophet - embody the very word of God, the interpretive efforts of the classical era jurists that comprise the orthodox legal corpus are the contingent product of a particular historical circumstance (see generally Esposito, 1991: 125-55). Each generation has the obligation to interpret the primary sources in line with contemporary needs and circumstances. In keeping with this assumption, modernism rejects the authority of the received doctrinal canon contained in classical legal compendia, and advocates a reinterpretation of the divine revelation in order to derive rules suitable to modern conditions.

Hazairin was a daring exponent of the modernist thesis. He called for the "demolition" of Syafii doctrine, the school of Islamic law followed in Indonesia, and the development of a "national" or "Indonesian" doctrinal corpus (Hazairin, 1962: 3). The content of Indonesian Islamic law would reflect an interpretation of Koranic norms in light of Indonesian social and cultural values. This effort was to be undertaken in the context of a movement to establish national law applicable to all Indonesians regardless of religion or ethnic identity in order to cultivate national unity. The ultimate aim was to resolve the conflict between Islamic and indigenous legal systems by formulating a body of Indonesian Islamic low similar if not identical with adat law.

Hazairin focused his attention on the law of the family. He claimed that the Koran, correctly understood, embraces a bilateral or parental system in which descent is traced along both the male and the female line (Hazairin, 1982: 11-14). This conception of the family, he argued, is implicit first in the marriage prohibitions contained in the Koran, which do not implement either a patrilineal or matrilineal clan structure, and in Koranic inheritance provisions, which grant inheritance rights to females and, in certain limited circumstances, relatives related to the deceased through female links. The patrilineal bias of traditional Islamic inheritance doctrine, Hazairin argued, was a consequence of the fact that the formulators of the classical doctrine interpreted Koranic provisions from the perspective of their own patrilineal society (Hazairin, 1982: 75). Because the marriage system embraced by the Koran is bilateral, the low of inheritance should accord equal weight to male and female blood ties.

Hazairin argued that an appreciation of the true character of Islamic inheritance would bring the religious law more closely into line with Indonesian values and customary practice. Although, as Hazairin well understood; Indonesian society included a variety of kinship structures, the most widely practiced family organization is, like that prescribed by the Koran, bilateral and individual. In an effort to close the gap between Islam and adat, Hazairin proposed a national inheritance scheme to be based on the principle of bilateral descent (Hazairin, 1962). Although the basic principles and general outline of the law would be the same for all Indonesians, some variation from the basic pattern would be necessary in order to accommodated distinctive features of Islamic inheritance.

Hazairin's proposals were much too radical for the majority of Indonesia's Muslim leaders. For many of Hazairin's contemporaries, and indeed many Muslims today, any effort to reinterpret the original sources was deemed inadmissible. Among those who subscribe to the modernist program, Hazairin's interpretations of the Koran were regarded as extreme. But while Hazairin's followers were few, they were not completely lacking, and the small group that did agree with his program was nothing if not influential. Through his position at the prestigious University of Indonesia, Hazairin influenced a whole generation of the country's brightest and most privileged students, many of whom went on to careers in academia or government. His proposal for a uniform national inheritance law was also appealing to elements within the government, which promoted inheritance law reform based on Hazairin's model in a variety of ways (see Nur Ahmad Inching toward equality recent developments in Indonesian inheritance law Fadhil Lubis, 1997: 55). By far the most determined attempt to bridge the gap between Islam and adat came in the 1980s when the government launched its attempt to codify Islamic inheritance doctrine in the Compilation of Islamic Law.

The Compilation of Islamic Law

A. Preparation of the Compilation of Islamic Law

The preparation of the Compilation of Islamic Law was undertaken jointly by the Department of Religion and the Supreme Court in 1985[2] The stated goal of the project was to specify rules to govern decisions by Islamic courts. To avoid any implication that the government was engaged in the creation of Islamic doctrine, the project was defined as a "Compilation" of Islamic rules, rather than a codification. According to the official definition of the project, the materials for the Compilation were to be taken from four sources: traditional Syafii legal texts, decisions of Indonesian Islamic courts, rulings of the country's leading Islamic organizations, and legislation from other Islamic countries. Its subject was to include all of the substantive matters over which the Islamic courts exercise jurisdiction - marriage, inheritance, and charitable foundations.

The project statement named Bustanul Arifin, chair of the Islamic panel of the Supreme Court and tireless advocate of Islamic law reform, as chairman of the project. It established a two-year timetable for completion and called for the ratification of the final product by Islamic scholars. The decision not to submit the document for consideration by the legislature was based on a number of factors. A code of Islamic doctrine would certainly have encountered significant opposition in the legislature, and, even if successful, the legislative process would have added years to the time needed for completion. From another perspective, the characterization of the document as a Compilation suggested that legislative approval was not necessary. According to Islamic legal theory law derives its validity from its connection to God's revelation; positive enactment by the legislature is irrelevant to legal validity.

The drafters of the Compilation fully appreciated the necessity of securing the support of the country's Islamic leadership in any reform to Islamic law. In the process of preparing the manuscript the drafting committee compiled a detailed questionnaire covering all of the substantive topics to be treated in the Compilation and outlining the proposed reforms (interview with Gani Abdullah, 7/27/97). The questionnaire was distributed to Islamic leaders around the country, who were then interviewed by members of the drafting committee based on the questionnaire. Although he survey results were never made public, the content of the Compilation clearly shows that the views expressed by the Islamic community shaped the content of the final product.

The ratification, which took place over several days in February of 1988 in Jakarta, was a carefully orchestrated event designed both to lend credibility to the claim that the finished product simply collected and restated a body of rules already in effect and to ensure the broadest possible participation and presumably investment in the outcome. The format was similar to other government organized national seminars that address all kinds of topics. The invited participants included prominent legal academics, judges, Islamic legal scholars, Religion Department officials, and leaders of all the country's major Muslim organizations[3]. Some of those who attended the conference criticized the way it was conducted on the basis that it did not allow for meaningful input from the participants (interview with K.H. Azis Masyuri, 07/20/77). According to these critics, the draft was not circulated sufficiently in advance of the meeting to permit them adequately to study it, and the organizers did not allow adequate comment during the conference. The objective of the meeting was quite clearly to secure agreement from leaders of the Islamic community, rather than to invite discussion on issues on which agreement was highly unlikely. The whole process of seeking ratification by a convocation of the country's leading Islamic scholars was a transparent attempt to invoke the concept of ijma[4] or consensus, the Islamic jurisprudential principle that serves in the classical theory of the sources of Islamic law as the criterion of validity of a particular interpretation of the primary sources (cf. Coulson, 1964: 77-81).

Because of the depth of feeling on many of the issues treated in the Compilation, the successful completion of the project reflects a truly remarkable accomplishment. The ultimate success of the undertaking owes much to the efforts and skills of Region Minister Munawir Sjadzali, who came to the religion post from a career in the diplomatic service. Perhaps the best indication of the difficulty of the task and the measure of the significance of the accomplishment is the fact that the final product has left virtually everyone dissatisfied.

B. Content of the Compilation Islamic Law

The Compilation is divided into three books. Book One covering marriage and divorce closely tracks existing law contained in the national marriage law and other legislation. Book Three, which addresses charitable foundations, also closely follows existing Indonesian law[5] The only part of the Compilation to break new ground was the second book dealing with inheritance.

Notwithstanding its characterization as a "compilation", the format and style of the document is that of the code. The material is topically subdivided into books, chapters and articles. Each of the three books begins with a chapter addressing general provisions followed by chapters treating specific subject areas.

The inheritance provisions are contained in 44 articles divided into six chapters. After an initial chapter containing definitions, the following three chapters set forth the rules governing identification and allotment of the deceased's legal heirs. Chapter Five addresses testaments, the importance of which is minimized by the rule that a maximum of one third of the deceased's estate may be disposed of by bequest. The final chapter deals with gifts, a subject not traditionally considered in connection with inheritance.

The heart of the law of inheritance is contained in Chapter three. The 16 articles that make up this chapter comprise no more than the rudiments of a scheme for the distribution of property upon death. The summary character of the inheritance provisions seems intended to commit the drafters to as little as possible. This was necessary both to secure the broadest possible approval and to leave open the possibility of further development of the law through judicial interpretation.

The rules regarding specification of heirs and assignment of shares in the Compilation are not intelligible except in the context of traditional Islamic law. The traditional doctrine, in turn, must be understood against the background of pre-Islamic Arabian customary law.

Before the advent of Islam in the 7th century, the basic unit of Arabian society was the patrilineal tribe[6] The tribe consisted of persons who traced their descent to a common ancestor through exclusively male links (Coulson, 1971: 29). The rules of inheritance served to reinforce the tribal structure by recognizing rights of inheritance only in males who were related to the deceased by male blood ties; the only survivors with rights of inheritance were the male agnate relatives, the "asaba" of the deceased (ibid.). The deceased's property passed to the "nearest" such relative based on a system of priorities. Neither female relatives nor males related to the deceased through females had any claim on the deceased's property.

Islam, at least as understood by the majority Sunni sect, did not altogether replace this scheme, but simply modified it[7]. The holy Koran, which is believed by the faithful to contain the very word of God, grants inheritance rights in the form of specified shares of the estate to certain of the deceased's relatives (Coulson, 1971: 35). The persons who are accorded these "Koranic shares" are either relatives who had no inheritance rights under tribal law - daughters, mothers, sisters, spouses - or relatives whose entitlement to inherit was often foreclosed by the existence of a nearer relative-fathers, for example, whose entitlement under customary law was entirely foreclosed by the existence of a son. The entitlement of these heirs is defined as a fractional share (faraid) of the estate - e.g., one eighth, one sixth, one-half, etc. In some cases, either the right to inherit or the share of the estate is made contingent on the existence of other heirs. For example, the husband receives one-half if the deceased left no children, one-fourth if there were children; siblings share in the inheritance only if the deceased left no children. Those designated as heirs by the Koran are known as ahl al-faraid, or "those entitled to prescribed portions" (Coulson, 1971: 30).

The Koranic entitlements clearly do not by themselves constitute a complete body of inheritance doctrine. The jurists who elaborated the Koranic provisions into a systematic set of inheritance rules interpreted the Koranic verses as establishing an overlay on the scheme of agnatic inheritance (Coulson, 1971: 33). As fully developed, the law merges two essentially discrete categories of legal heirs into a fully integrated scheme for the distribution of property on death: the "Koranic sharers" inherit on the basis of having been nominated as heirs in the Koran; and the asaba derive their entitlement from the strength of the male blood tie. The complete distribution of the estate is accomplished in two stages: the Koranic sharers are given their prescribed portions first and the nearest surviving male relative, the asaba, takes what remains. Although the male agnate's portion is the variable residue of the estate after the Koranic heirs have taken their portion, he is not a secondary heir in any sense. His position is protected in most cases against the possibility that the estate will be depleted by the distribution to the Koranic heirs by a complex set of priorities that exclude certain heirs in the presence of other relatives (Coulson, 1971: 33-39) and the principle of tasib, which converts a female relative of the same relationship to the deceased as the asaba into a residuary heir (Coulson, 1971: 41-42). The female residuary then no longer takes a fixed portion, but shares in the residue with her male relative in the proportion of two parts to the male against one part for the female. Thus, a sole daughter takes a Koranic share of one half if there is no son, but if she and her brother are the exclusive heirs, she no longer takes her Koranic portion, but shares the estate with her brother in the proportion of two to one, giving her one third to her brother's two thirds.

The advent of Islam transformed Arab society in fundamental ways. Politically, the tie of common faith superceded ancient blood loyalties; the individual family replaced the tribe as the primary social group. But while the impact of Islam on Arabian society was profound, it is also true that the imprint of Arab culture on traditional Islamic law runs deep. Female relatives and spouses are accorded rights of inheritance. But the force of the male bloodline is one of the law's unifying themes. In general, male relatives enjoy both a greater likelihood of inheriting and a larger portion of the estate than females.

Initially, the drafters of the Compilation, or some of them, intended to eliminate the patrilineal bias of Islamic inheritance, and replace it with a system that treated male and female blood ties equally (interview with M. Yahya Harahap, 7/29/97). This approach clearly built on the argument developed by Hazairin that Islamic inheritance law is bilateral. But the scheme favored by the drafters of the Compilation went further in reforming the traditional doctrine than even Hazairin had suggested. As initially conceived, Indonesian Islamic inheritance would have treated male and female relatives equally. This meant not only eliminating the priority enjoyed by male relatives, but also equalizing the shares of male and female heirs.

I am not aware that the drafting committee ever actually produced a draft that fully implemented the principle of equality between the sexes. No such proposal was ever made public. However, the essence of the scheme was presented publicly by Religion Minister Munawir Sjadzali in the form of a proposal to equalize the shares of sons and daughters (Munawir Sjadzali, 1988). In support of the reform, he put forward a number of arguments drawn from classical Islamic jurisprudence, but the overriding reason offered for the proposal was its conformity with existing Islamic values and practice. As illustrative of the point, Munawir related his own experience of consulting a prominent "ulama", or Islamic scholar, about arranging for the distribution of his own estate (Munawir Sjadzali, 1988:   3-4). Munawir told the ulama that he had six children, three sons and three daughters. All three sons had been educated overseas, paid for out of his own resources, whereas the education of his daughters had cost far less. If, Munawir said, his sons were to receive twice the inheritance of his daughters, he would consider this grossly unfair. The ulama responded by relating how he had handled his own estate. Instead of waiting until he died for his property to be divided among his heirs, he distributed the bulk of his wealth to his children by way of gift, giving sons and daughters equal shares, leaving only a small amount to be distributed according to Islamic inheritance rules. Other religious leaders, according to the ulama, used the same or similar methods to evade the application of the rule granting sons a double share. Munawir considered this telling of the Islamic attitude toward Islamic law. The fact that the country's religious leaders did not themselves follow the rule granting males a double share indicated that traditional Islamic legal rules were inconsistent with Islamic legal sensibilities, and demonstrated the need for a "reactualization" of traditional doctrines.

The major obstacle to carrying out a reform of the rule regarding the inheritance rights of children was Koran IV: 11. That verse states without apparent ambiguity that "male [children receive] the equivalent of the portion of two females". Various arguments were put forward to justify a departure from the apparent clear command of the text. Among the more promising in my view is an argument made by drafting committee member Yahya Harahap (Yahya Harahap, 1988: 141-42), a judge on the Supreme Court, came to the committee from a career in private law. Although he had no significant background in Islamic jurisprudence, a fact used against him by the project's critics, he is a highly intelligent and energetic man who emerged as one of the project's leading theoreticians. He began his argument that giving equal shares to sons and daughters is not inconsistent with the Koranic text by granting the assumption of the defenders of the two to one distribution that the rationale for the differential treatment of males and females has its source in the different social roles and obligations of men and women. The justification for granting men the larger share is not because of their sex per se, but because they bear the financial burden of supporting the family. In Southeast Asia, however, Muslim women frequently contribute as much or more to the household economy as men. Thus, the purpose or effective cause of the rule is not present. In addition, the language of the Koran is not necessarily mandatory. The provision stating that the daughter's share is one half that of the son should be interpreted to mean that daughter's share must be at least half that of her brother. The Koran does not, however, preclude equal shares for males and females if social realities warrant such a distribution and the Muslim community desires it.

Ultimately this argument and all others in support of the proposal for equal treatment of males and females was rejected. Indeed, Yahya Harahap, who was in charge of surveying Muslim opinion, reported that not one of the ulama surveyed was willing to depart from the two to one rule (Yahya Harahap, 1988: 140). Although the reasons for rejecting the change varied somewhat, the most consistently stated objection rested on the distinction recognized in Islamic legal theory between Koranic texts that are clear and certain, and those that are not (see generally Al Yasa Abubakar, 1991: 173-78). While it is permissible indeed necessary to apply human reason to penetrate the latent purpose of ambiguous language, no such analysis is required or allowed when the text is clear and its purpose manifest. Since the verse that grants males a double share is by near universal agreement both detailed and clear, deviations from its express mandate based on speculation about the divine purpose are not allowed.

C. The Compilation Codifies Traditional Doctrine

Muslim reaction to the proposal to equalize the inheritance rights of sons and daughters, voiced both publically and in response to the drafting committee's questionnaire, left no doubt that such far reaching change would not be accepted.[8] The inheritance scheme that was ultimately approved and incorporated in the Compilation largely tracks Koranic dicta on the subject. The rule regarding the inheritance rights of children, for example, provides:

If there is a daughter she receives one half, if two or more they share two thirds, and if there are both daughters and sons, the sons share with the daughters in the ratio of two to one.

This provision closely tracks the language of Koran IV, 11. Although not explicitly stated, the rule suggests a continued adherence to the dual basis for inheritance recognized in traditional doctrine: daughters inherit on the basis of Koranic nomination; sons based on the strength of the agnatic blood tie. The provision also preserves the principle that the male takes a double share. Daughters inherit a fixed share of the estate only when the deceased left no male descendant. If there is a male descendant, the female descendants no longer inherit as Koranic heirs, but are converted into residuary heirs, sharing with the males in the proportion of two to one. In every respect, the rule suggests a codification of traditional doctrine.

The provisions relating to the inheritance rights of the mother, the spouse relict, and collateral relations likewise codify Koranic language.[9] As regards the rights of mothers, article 178(a) provides first that the mother receives one sixth if the deceased left children or two or more siblings, but her share is increased to one third if there were neither children nor more than one sibling. This language tracks precisely the portion of Koran IV, 11 that addresses the rights of the mother.

Article 178(b) treats the special case of the mother in competition with both the spouse of the deceased and the deceased's father. The Koranic text (Koran IV, 11) provides that, if there is no surviving child and "the parents are the legal heirs", the mother takes one third, except where the deceased has left brothers, in which case the mother takes one sixth. This rule presented a problem for the early jurists since, if applied literally, it had the effect in some situations of granting to the mother a larger share than the father, a result that was at odds with basic assumptions about the superior rights of males. If, for example, the deceased left a husband, whose entitlement was one half, and the mother is granted the one-third portion that the Koranic text seems to prescribe, the father's residual portion is only one sixth.

The solution to this problem adopted by the traditional doctrine is known as the "Two Decisions of Umar" after the second Caliph. The early jurists interpreted the Koranic verse to mean either that the mother takes her Koranic portion when the portion when the parents are the only legal heirs (in which case the father takes a two-third portion), or that the mother takes, not a one-third share, but a share that equals one third of the residue (Coulson, 1971: 45-46). Under either of these constructions of the Koranic language, the principle of tasib - that a male agnate converts a female heir having the same relationship to the accused - is extended to the case of the parents. That is the mother is converted by the father into a residuary heir, and shares in the residue according to the rule of two parts to the male to one part to the female.

Article 178(b) of the Compilation appears to codify both the Koranic rule and the juristic gloss on the rule. It states that when the mother shares the estate with the father she takes "one third of the residue after the widow or widower has taken his or her portion" (emphasis added). The effect of this language is to preserve the traditional principle that the share of male heirs is twice that of female heirs.

Compilation provisions on the inheritance rights of the deceased's spouse, treated in articles 179 and 180, mirror Koranic doctrine precisely, and reinforced the impression of the drafter's commitment to preserving traditional doctrine. The widow's portion is one quarter of the estate if the deceased died without children, and one eighth if there were children. A widower takes exactly twice as much as a widow.

The clearest indication of the Compilation's adherence to traditional doctrine and its rejection of the bilateral inheritance scheme advocated by Hazairin is in the treatment of the inheritance rights of collaterals. In the Koran the rights of collaterals are treated in two separate verses which, on their face, are inconsistent if not entirely contradictory. Koran IV: 12 states[10], If the heirs of a deceased man or woman are collateral relatives and a brother or sister survives, then he or she takes one sixth. But if there are more than one brother or sister, they share one third. Koran 4: 176 provides:

[I]f a man dies without a child and leaves a sister, she takes half of the inheritance... If there are two sisters, they take two thirds of the inheritance. If the collaterals include both males and females, then the male takes a share equivalent to that of two females.

Although the Arabic terms for "collateral relatives" and "brother" and "sister" is the same in both verses, juristic opinion differentiated between the two provisions and reconciled the apparent conflict between them by interpreting verse 12 as referring exclusively to uterine siblings – brothers and sisters who have the same mother as the deceased but a different father - and verse 176 as referring to germane and consanguine siblings - full and half siblings having the same father as the deceased (Coulson, 1971: 65). The uterines are restricted under all circumstances to a fixed Koranic share, while agnatic sisters take a fixed share in the absence of an agnatic brother, but are converted into residuaries when a brother is present, and share the residue in the proportion of two shares for the male as against one for the female. Although this interpretation is supported by ample legal authority, the deeper explanation for the distinction lies in basic assumptions of Islamic inheritance doctrine and the general preference accorded to the male bloodline. The orthodox interpretation of the quoted texts has the effect of extending to collateral relations the same system of dual entitlement that governs other relatives. Sisters and non-agnatic brothers, relations who did not inherit under Arabic customary law, are treated in the same manner as spouses: they receive a Koranic portion. In the absence of a son or a father, an agnatic brother qualifies as the nearest male agnate, and is entitled to the residue. When the brother is accompanied by agnatic sisters, the principle of tasib converts the sisters into residuary heirs, who share with their brother in the proportion of two to one.

Because the orthodox interpretation of the verses on collaterals is premised on and reinforces a patrilineal kinship system, Hazairin rejected it. Applying his assumption that male and female blood lines have equal weights, Hazairin rejected any distinction between the two verses based on the character of the relationship between the deceased and the siblings (Hazairin, 1982: 54-55): that is he denied that a uterine sister is any less a sister than a full of consanguine sister. Instead, he distinguished the two verses on the basis of the presence of the father. The provision-granting siblings the larger share, according to Hazairin, applies only when the deceased was not survived by the father. When the father is an heir with the decease's siblings, the siblings take the smaller portion specified in verse 12.

The Compilation of Islamic law unequivocally embraces the orthodox view on the rights of collaterals and rejects Hazairin's position that agnatic and non-agnatic siblings have equal rights. Compilation articles 181 and 182 explicitly distinguish between uterine and full or consanguine siblings, granting agnatic siblings the residue of the estate in the absence of a child or father.[11] When agnatic brothers share the residual portion with agnatic sisters, brothers take two shares to the sisters one.

The Compilation provisions regarding children, the mother, spouses and collaterals appear to simply restate orthodox Islamic doctrine. The one point on which the Compilation deviates from traditional doctrine is in its treatment of the inheritance rights of the father. Article 177 provides:

The father takes on-third share if the deceased left no children and, if the deceased had children, one sixth.

The second part of this provision, the specification of a one-sixth share for the father when the deceased left children, is taken directly from Koran IV: 11. The provision granting the father a one-third share when the deceased did not leave children, however, has no apparent basis in either the Koran or traditional doctrine. In the absence of children or, more specifically, in the absence of male agnatic descendants, the father inherits the residue of the estate in his capacity as asaba.[12]

The origin of the language assigning the father a one-third share and the explanation for its inclusion in the Compilation are the subject of considerable confusion. One view, probably the most common, holds that the one-third rule is a drafting or typographical error. Another view, held by more besieged elements of the Muslim community who suspect an effort to secularize the law, maintains that the one-third share for the father has its source in civil law, specifically the French Civil Code. The most plausible explanation, confirmed by those involved in the preparation of the manuscript, explains the rule granting the father one third of the estate in the absence of children as the sole surviving element of the drafters' original plan to implement a system of bilateral inheritance (which requires abolition of the institution of the asaba as residual heir) and equalize the inheritance rights of male and female relatives (interviews with Gani Abdullah, 7/27/1997 and Bustanul Arifin, 7/30/1997). As discussed above, he orthodox view recognizes two principal categories of heirs: Koranic sharers and the nearest male agnate. Under the traditional doctrine, the father inherited as the nearest male agnate in the absence of an agnatic descendant. Because that status is not recognized in a system of bilateral inheritance, the drafters of the Compilation specified a fixed fractional share for the father when the deceased left no descendants.[13] The size of the father's share was determined based on analogy to the share granted in the Koran to the mother: one third. Thus, the one-third share for the father represents a deliberate reform based on a novel interpretation of the Koran inspired by the goal of making the law of Islamic inheritance fully bilateral and equalizing the position of all male and female relatives.

The conflict between article 177 and Islamic doctrine did not go unnoticed. When the text was published in 1991, the Nahdlatul Ulama (NU), the most important organization of conservative Muslims, issued a protest, threatening to reject the Compilation entirely unless the provision relating to the inheritance rights of the father were changed (interview with Daud Ali, 08/02/1997). In response to the protest, the Supreme Court, after consulting with the Department of Religion, issued a circular "clarifying" the intent of the provision (Surat Edaran n° 2, Mahkamah Agung, June 28, 1994). The clarification states that what was intended with article 177 is that "the father takes a one-third share if the deceased left to children, but did leave a husband and mother" (emphasis added). Although this explanation satisfied the immediate objections of NU, it hardly makes the law "clear". The Supreme Court's explanation of the provision is acceptable to Muslim traditionalists because, according to the orthodox view, the father's share of the inheritance is in fact one third of the estate when the other heirs are the mother and husband. The father receives one third under those circumstances not because the law grants him one third as such, but because one third is what remains for the father as the residuary heir after the husband takes his fixed share of one half and the mother takes her one third share of the residue or one sixth. It cannot, however, have been the intention of the drafters to write a provision that addresses the rights of the father in one circumstance only - where the other heirs happen to be the husband and mother - but leave unresolved the father's rights when, for example, he shares the estate with the mother and the wife.

The Supreme Court's circular fails to resolve the question of what article 177 means. Indeed, in pointedly not specifying the father's entitlement except in the one situation it addresses - when he shares the inheritance with both the husband and the mother - it seems designed to avoid a definitive resolution of the father's inheritance rights. The majority of observers doubtless interpret the clarification as signalling the government's intention to preserve the traditional doctrine regarding the inheritance rights of fathers. It is possible, however, that the clarification was intended to preserve the ambiguity as to the father's inheritance rights in order to keep open the possibility of future interpretations in line with the drafters' original intentions: that is the clarification does not preclude an interpretation of article 177, which grants the father a one-third share whenever the deceased died without descendants. To be sure, such a construction is difficult to reconcile with article 178 regarding the rights of the mother, which gives the mother not a fixed share of one third, as suggested by the literal language of the Koranic text, but one third of the residue, in line with predominant juristic opinion. Such an interpretation is, however, consistent with the privately stated views of members of the Supreme Court that the Compilation as approved abolishes the principle of male residuaries (interviews with Taufiq, 7/25/1997 and Yahya Harahap, 7/29/1997). As will be shown below, moreover, the Court has already signalled an intention to depart from orthodox Islamic legal doctrine and interpret the Compilation in line with the intention of the drafters to move toward a bilateral system of inheritance rights.

D. Progressive innovations: Representation and Adoptive Children

The outstanding feature of the inheritance provisions of the Compilation is its resemblance to prior doctrine. All of the relevant Koranic texts are incorporated in the document. Indeed, much of the Koranic language on inheritance is imported into the Compilation in verbatim translation. Although nowhere explicitly stated, the basic principle underlying Islamic inheritance - that the fixed fractional shares are distributed to the Koranic heirs and the nearest male agnate takes what remains - receives strong implicit endorsement. The Compilation also includes part - though only a small part - of the juristic interpretation of Koranic texts. The provision relating to the rights of the mother in competition with the deceased's spouse and father and the rules governing the rights of collaterals are the most notable examples of an apparent intention of adhering to traditional interpretation of the Koran.

The Compilation does, however, include two modest reforms designed to bring the law more closely into line with indigenous Indonesian values. Article 209 prescribes an "obligatory bequest" in favor of adopted children when the child has not been names in an express testament by the adoptive parents.[14] While not prohibiting adoption, Islam does not recognize any legal relationship between the adoptive parents and the child (Fyzee, 1974: 189). In Islamic Southeast Asia, however, the practice of rearing children outside their birth home is very common (see e.g. Geertz, 1961: 36-41 discussing the Javanese). The fact that such children are not entitled to any share of their adopted parents' inheritance has long been regarded as grossly unfair.

The institution of an obligatory bequest was borrowed from Egyptian law, which in 1946 provided for an obligatory bequest in favor of children of pre-deceased heirs (Coulson, 1971: 145-46). As in the Egyptian statute, the Compilation provision limits the bequest to a maximum of one third of the estate. This limitation derives from the fundamental rule of Islamic inheritance law that no more than on third of the deceased's estate may be disposed of by will. The necessity of approaching the problem indirectly through the somewhat awkward means of a fictitious grant reflects the general unwillingness to rethink the fundamental premises of the law.

Potentially more significant then the provision relating to relationships formed through adoption, which is based on a highly conservative rationale and has few implications beyond the narrow circumstance it addresses, is another provision providing for representation of pre-deceased heirs. This provision addresses the situation that has long been regarded as entailing the greatest hardship under traditional Islamic doctrine. The grandson or granddaughter of the deceased, according to all four schools of Sunni jurisprudence, was totally excluded from inheriting by the presence of a son (Coulson, 1971: 143). This outcome results from the application of the basic principle of priority governing the rights of residuary heirs that the nearer in degree of relationship excludes the more remote. Thus, the son excludes not only his own children from inheriting but also his orphaned nieces and nephews. As Noel Coulson pointed out, this rule presented no particular injustice within a society in which common tribal membership was the strongest social linkage, since the surviving uncle could be expected to have the same regard for the needs of his orphaned nephews as for his own sons (Coulson, 1971: 143-44). But in a society that emphasizes the nuclear unit and in which the family of the deceased's children comprise independent branches of the family, the complete termination of an entire branch because of the death of the father seems arbitrary and unjust, especially since the death of the grandchildren's father may leave them in particular need of assistance.

The rights of children of pre-deceased heirs has been regarded as a problem in many Islamic countries for a long time. As mentioned, the matter was first tackled in Egypt in 1946 through the institution of an obligatory bequest. This approach was later followed in several other Middle Eastern and North African countries (Coulson, 1971: 144-46). Pakistan provided for representation of pre-deceased heirs directly (Coulson, 1971: 145). The question of the inheritance rights of the children of pre-deceased heirs was also a major component of Hazairin's proposed national inheritance scheme (Hazairin, 1982: 26-44). Based on a creative though somewhat strained interpretation of Koran IV: 33.[15] Hazairin argued that the Koran, correctly understood, recognizes the principle of representation of pre-deceased heirs. The children and more remote descendants of pre-deceased heirs inherit the deceased heir's share: that is the representatives inherit a share equal to the share that would have passed to the heir - the party represented - had s/he survived.

The Compilation provision on representation of pre-deceased heirs is contained in article 185: that article provides that "An heir who dies before the deceased may be represented by his children", but that "The share of the representative may not exceed the share of an heir of the same degree [of relationship] as the person represented". The jurisprudential basis for the change is not apparent from the text of the Compilation and was nowhere authoritatively specified. The absence of an express jurisprudential foundation for the rule has been criticized (see Ahmad Azhar Basyir, 1992: 19), but may have been necessary for approval. On the one hand, the majority of the country's ulama would not have accepted a rule that grants inheritance rights to the children of pre-deceased heirs on the basis of Hazairin's (or any other) appeal to the language of the Koran. On the other hand, the only jurisprudential justifications acceptable to the country's more conservative ulama would not support the kind of change that the drafters intended. According to drafting committee member who was in charge of surveying Islamic opinion, Yahya Harahap, the only basis on which the ulama could accept representation of pre-deceased heirs was the on the principle of an obligatory bequest (Yahya Harahap, 1988: 138). Conceiving the representative's share as a bequest, however, would require that the share of the representative not exceed one third of the entire estate because of the rule requiring that two thirds of the entire amount go to the legal heirs.

In addition to provoking criticism, uncertainly over the jurisprudential basis for the representation rule has contributed to the emergence of conflicting views as to what the provision accomplishes. On one view, article 185 does not create or recognize inheritance rights in children of pre-deceased heirs, but operates only as a grant of authority to the judge to provide for orphaned children on an ad hoc basis in order to avoid a manifest injustice (see Roihan A. Rasyid, 1995). This understanding is apparently based on the view that only those persons who are alive at the time of the deceased's death qualify as "heirs" under Islamic law. If, therefore, the pre-deceased "heir" - the party represented - is not him or herself an heir, a fortiori neither is the representative, since the "non-heir" pre-deceased parent provides the only possible link with the deceased. Thus, the beneficiary of article 185 does not inherit in his own right, is not an heir, but takes a share of an heir. Advocates of this view find support for this interpretation in the terms of the provision, which is permissive rather than mandatory. Article 185 states that the child of a pre-deceased heir "may" - not "shall" - fill the position of the heir. Proponents of this interpretation also point to the fact that the share of the representative is not necessarily identical with the share of the pre-deceased heir. If the rights of the parent simply devolved on the child making the grandchild an heir in his own right, he would be entitled to a specific portion of the estate. Under the Compilation, however, the share of the representative is discretionary with the court, with the limitation that it may not exceed that of another heir having the same relation to the deceased as the person represented.

Another view of the rule regarding representation of pre-deceased heirs regards it as having affected, or perhaps recognized, a fundamentally different conception of Islamic inheritance from the traditional understanding. Adherents of this view regard article 185 as endorsing not only the principle of representation of pre-deceased heirs but also and more importantly Professor Hazairin's theory that Islamic inheritance treats male et female blood lines equally (see e.g. Abdul Ghofur Anshori, 1995: 39). This interpretation is based on the assumption that the descendants of the pre-deceased heir do in fact inherit in their own right. If that is so, and if the pre-deceased heir was a female, the net effect of recognizing rights in the representative is that inheritance rights have been passed along the female line. Thus, the rule does not simply authorize ad hoc solutions to provide for the orphaned grandchildren of the deceased, but is a logical ingredient of a coherent system of inheritance that attaches equal weight to male and female bloodlines. Within the context of a bilateral family structure, the principle of representation of pre-deceased heirs has the effect of extending inheritance rights to the closest living descendant of the deceased regardless of whether the representative is related through male or female ties (see Hazairin, 1982: 32).

Future Development of Islamic Inheritance Doctrine

Considering both the similarities between the inheritance provisions of the Compilation and Islamic doctrine as well as the process by which it was formulated and agreed to, it is not surprising that the majority of judges and other interested observers interpret the text of the law as essentially codifying traditional Syafii doctrine. That is not, however, the only interpretation. The brevity of the text leaves many unanswered questions, and the absence of any meaningful explanation of the law contributes to the uncertainty of what it means. In my view, the text was deliberately left ambiguous to leave open the possibility of future development through interpretation. The final provision of the text, article 229, gives credence to such a possibility by requiring that in their decisions judges "give sincere consideration to the values of the living law in order that their decisions shall conform to the sense of justice". Munawir Sjadzali and the other reformers have stressed the importance of this provision as not precluding the eventual adoption of the changes embodied in their original proposal (interview with Munawir Sjadzali, 7/10/1997).

In contrast to the very public discussion that accompanied the drafting and ratification of Compilation, the current debate over the content of Indonesian Islamic inheritance doctrine is being carried out more quietly and with less confrontation. The delicacy of this process and the likely direction of future development is illustrated by a 1994 decision of the Supreme Court in a case involving the rights of collaterals in competition with a daughter. The decision came in a case referred to as H. Nur Said bin Amaq Mu'minah,[16] involving a dispute between the descendants of two brothers, Amaq Itrawan and Amaq Nawiyah. Amaq Nawiyah died first, sometime before 1930, survived by a daughter and his brother. In 1992, the heirs of Amaq Itrawan filed suit in the Islamic Court for Mataram on the island of Lombok, West Nusa Tenggara, claiming title to property that had belonged to Amaq Nawiyah when he died. The defendants in the case were descendants of Amaq Nawiyah. The plaintiffs claimed title to the property on the basis that Amaq Itrawan inherited a share of Amaq Nawiyah's estate as his brother.

The merits of the plaintiffs' position under the traditional doctrine was clear. Their claim, however, was based on a juristic interpretation of the relevant Koranic provision at odds with the apparent literal meaning of the Koranic language. Koran IV: 176 conditions the inheritance rights of collaterals on the absence of a "child" of the deceased. The Arabic word for child used in this provision - walad - typically refers to a child of either sex (Coulson, 1971: 66). Indeed, the same word for child used in verse 176 appears as well in other Koranic texts on inheritance, and has interpreted in those contexts as including both male and female children.[17] But the majority of Sunni scholars interpreted the word walad in verse 176 as referring to male children only (Coulson, 1971: 66). The traditional doctrine granted agnatic siblings a share of the inheritance when the deceased was survived by a daughter, but not when the deceased was survived by a son. This interpretation of the Koran was necessary in order to preserve consistency with a well known Tradition in which the Prophet divided the deceased's estate between his daughters and their uncle, the deceased's brother (Ibid.). It was also consistent with the general principle that Koranic heirs do not exclude other relatives of the inner family (Coulson, 1971: 36-37). Most importantly, though, interpreting the word "child" in verse 176 to refer to sons but not daughters had the effect of systematically advantaging male relatives.

Thus, under the received doctrine, the rights of the brother in competition with the daughter, and therefore the entitlement of the plaintiffs in the case of H. Nur Said, were clear beyond any reasonable dispute. The daughter is entitled to a one-half Koranic share; the brother takes the rest. The Compilation provision regarding the rights of agnatic siblings does not clearly alter this outcome. Compilation article 182, like Koran IV: 176, makes the inheritance rights of siblings dependent on the absence of a child. The Compilation does not, however, specify whether the entitlement of collateral relations is contingent on the absence of male children only, as under the traditional doctrine, or lapses in the presence of any child. The Indonesian word used in the Compilation (anak), like the Arabic word in the Koran, commonly refers to children of either sex.

The lower courts in H. Nur Said decided the case in line with traditional doctrine. The Supreme Court reversed. In a very brief and conclusory decision, the Court stated simply that "so long as the deceased is survived by children, either male or female, the rights of inheritance of the deceased's blood relations, except for parents and spouse, are foreclosed". The only reasoning or authority cited in support of this interpretation was a brief reference to the views of Ibnu Abbas, one of the companions of the Prophet, who construed the word walad in Koran 4: 176 as embracing both male and female children.

The reasons given by the Court in support of its decision obviously provide little guidance as to the direction of future change. It could be argued that the decision does no more than adopt the most plausible linguistic interpretation of the Koranic language on which the Compilation provision is based. On the other hand, the Court's decision is consistent with the most ambitious plans of the reformers - to implement an inheritance scheme based on the premise that male and female relatives have equal standing under the law. It is certainly noteworthy that the Court cited as the sole support for its interpretation of the Compilation the opinion of a respected Islamic authority on the meaning of the Koran. One inference that could be drawn from this is that the Court will not impose an interpretation on the Compilation that does not have some foundation in the classical Islamic legal literature. There is precedent for such an approach to legal change in other Islamic countries, and at least some commentators appear to have assumed that the Court will not deviate significantly from accepted canons of Islamic legal interpretation. I suspect, however, that the Supreme Court regards the potential for developing the law through interpretation as more open ended. As noted, the Compilation provision requiring that judges consider the values contained in the living law arguably authorizes judicial development of the law. In addition, the arguments and interpretations put forward while the Compilation was being debated as both possible and permissible. To be sure, the need to maintain legitimacy with more conservative Muslims will moderate the pace of change. Moreover, in the absence of a clear signal from the Supreme Court, lower Islamic courts are unlikely to depart from traditional doctrine beyond those changes clearly stated in the Compilation. But while inheritance law reform will probably be gradual and somewhat haphazard, the indications are that the Supreme Court is committed to a view of Islamic inheritance doctrine that is both equitable in its treatment of women and more similar to its conception of Indonesian custom.

Conclusions

The debate over inheritance doctrine and the content of the Compilation reveal both continuity and change in Indonesian Islam. Historically, attitudes toward law and jurisprudence have marked off significant divisions within Islamic society. The debates over the inheritance provisions of Compilation indicate that, despite very significant changes in the Indonesian Muslim community, the historic lines of cleavage remain. The content of the Compilation was dictated by the need to negotiate the different outlooks of the traditionalists - who insist on literal adherence to the received doctrinal corpus - and the modernists - who advocate reinterpretation of the original sources - while at the same time advancing the drafters' reform agenda. Accommodating all these interests required the balance of a funambulist. The bulk of the document consists of clearly stated texts the reconsideration of which is out of bounds for either modernists or traditionalists. The Compilation also includes enough indications of an intent to adhere to standard interpretations of those texts to foreclose strong objections that it conflicts with traditional doctrine. On the other hand, since most of the juristic gloss on the texts is not expressly stated in the Compilation, it can be read as preserving only that part of the law of inheritance which was directly revealed, leaving open the possibility of new interpretations of those divine dicta.

While the Compilation shows that the historic fault lines within the Muslim community persist, the debate over Indonesian Islamic inheritance also demonstrates that the terms of Islamic law are by no means fixed, and suggests that a long term process of doctrinal change is underway. Like the modernists, the new group of reformers embraces the central tenet of Western scholarship on Islamic law, that the interpretations of the Koran embodied in legal doctrine are a product of a particular historical context. But the reformers regard the terms of the divine revelation as less definitive than the modernists and recognize a broader scope for the exercise of human reason. Aptly described as "indigenists" (Liddle, 1996: 74), they favor a thoroughgoing accommodation of Islamic and indigenous legal regimes and advocate rules of inheritance that are generally consistent with widely shared views about fundamental human rights, and are premised on an understanding of the sources of Islamic law that is consistent with the positivist assumptions of the contemporary nation state.

The changes from the traditional doctrine that were incorporated in the Compilation fell far short of the proposals of the Department of Religion and the Supreme Court. Viewed in a longer historical perspective, however, the changes indicate a widening acceptance of reform methodologies and doctrinal change that would not have been possible a generation earlier. Professor Hazairin's advocacy of representation of pre-deceased heirs placed him on the doctrinal fringe in the 1960s. A generation later, the principle of representation, though not universally accepted, is no longer regarded as completely unthinkable. The strategy of those who favor further doctrinal reform is premised on the view that change can be accomplished gradually through a process of discussion and familiarization. Notwithstanding evidence of jurisprudential development and doctrinal change, what stands out in the Compilation above all else is its extreme conservatism. It has often been remarked that the gender systems that characterizes Southeast Asian Muslim societies differ markedly from those of the Arabian Peninsula where the rules of Islamic inheritance originated. Although it would be erroneous to characterize Southeast Asian Muslims as embracing gender equality, Southeast Asian women enjoy a relatively strong social status and have long participated in a wide variety of economic pursuits. The opponents of the government's reform proposal never seriously disputed the claim that many Indonesians believe that systematically favoring male children in the distribution of property on death is unjust. For most of those expressing opposition to the proposal, however, the actual practice of inheritance was basically irrelevant to the question of what the law should prescribe.

Part of the explanation for the conservatism of Islamic legal thought is to be found in the idealism and scholasticism that have generally characterized Islamic jurisprudence. Islamic legal scholars have long conceived their role as having much to do with apprehending the divine and much less to do with regulating social practice. Specifying the rules of inheritance is not solely or even primarily a matter of prescribing rules for the authoritative resolution of actual inheritance disputes. It touches on fundamental questions of meaning and truth. Questions regarding such real world and eminently disputable matters as the shares of male and female relatives are regarded as neither more nor less important than impossible and fantastical questions such as determining the precise moment at which succession opens to the estate of a person turned into stone by the devil (Coulson, 1964: 81).

The attitude of Islamic leaders toward law reform and the seeming commitment to traditional legal doctrines by the Muslim community is also influenced by contemporary Indonesian social realities. Indonesian society is undergoing very rapid social and economic change. Part of the appeal of a system of divinely based and immutable inheritance doctrines is that it offers refuge against uncontrollable forces of change. Islam and Islamic law provide fixed points of truth in a world that seems to be moving at breathtaking speed.

Finally, the methodological conservation that characterizes the Compilation is partially rooted in internal jurisprudential concerns that plague all late twentieth century legal systems, not just Islamic law. All contemporary legal systems are faces with the problem of establishing a convincing connection between law and truth. Within Islamic jurisprudence there has from the beginning been a recognition that certainty in all things is not possible. But while doubts about the possibility of achieving truth in law have been expressed for centuries, the challenge to truth posed by the contemporary situation is different. In the past, the problem of uncertainty was understood as rooted in the difficulty or impossibility of imperfect humans achieving certain knowledge of divine intent. By contrast, the challenges of today's generation raise more fundamental and intractable problems. To acknowledge, as the reformers do, that all interpretations of the divine revelation are the contingent product of time and place is to relinquish completely the aspiration for absolute truth. Moreover, to concede the absence of solid foundations for knowledge is to give up precisely that which is most sought after – an anchor of stability in a world otherwise characterized by uncontrolled change.

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Acknowledgement: The above article first appeared in The Indonesian Law and Administrative Review, Vol. V, No.1, 1999 and has been reproduced here with their permission.

FOOTNOTES

[1] For biographical information and a brief summary of Hazairin’s views, see Ensiklopedi Hukum Islam, Vol II, 537-40.

[2] The project was launched with a Joint Decree issued by the Chairman of the Supreme Court and the Minister or Religion dated March 21, 1985. The most complete published account of the preparation and content of the Compilation is Abdurrahman (1992). Other widely cited discussions of the Compilation written by individuals involved in the project include Bustanul Arifin (1985) and Yahya Harahap (1992).

[3] Official versions of the Compilation published by the Department of Religion include a list of the seminar participants in an appendix.

[4] Arabic derived legal terms are spelled according to standard Indonesian.

[5] I have argued elsewhere that the basic purpose of restating marriage and divorce rules in the Compilation was to islamicize Indonesian state law (Cammack et al., 1996: 66-68).

[6] The most comprehensive treatment of Islamic inheritance law in English is Coulson (1971).

[7] The inheritance law of the other major group within Islam, the Shia, differs in fundamental ways from the inheritance law of the majority Sunni (see generally Coulson, 1971: ch. 8). The most basic difference is that Shiite law gives greater recognition to female blood lines that Sunni law. Some analysts have interpreted reforms included in the Compilation wich improve the position of female relatives as based on Shiite law (interview with Thoyib Mangkupranoto, 7/23/1997).

[8] The editors of the modernist-oriented magazine Panji Masyarakat solicited responses to the proposal from a range of perspectives and collected them in a volume entitled Polemik Reaktualisasi Ajaran Islam (Jakarta: Pustaka Panjimas, 1988).

[9] The Compilation also includes provisions addressing the situation of an over or under subscribed estate that are similar if not identical to traditional Syafii doctrine.

[10] I have adopted the translation contained in Coulson 1971: 65.

[11] The Compilation also includes provisions addressing the situation of an over- or under subscribed estate that are similar if not identical to traditional Syafii doctrine.

[12] When the deceased left daughters, the father inherited both his one-sixth Koranic share and a residuary portion (Coulson, 1971: 43).

[13] Hazairin rejected the interpretation of Koran IV: 11 that limits the mother to one third of the residue rather than a one-third share, but he did not propose a fixed share for the father.

[14] The provision also grants adoptive parents an obligatory bequest out of the estate of their adoptive child.

[15] The relevant portion of Koran IV, 33 reads, according to Mohammed Marmaduke Pickthall's English translation, "And unto each we have appointed heirs of that which parents and near kindred leave". The word here translated as "heirs", Hazairin interprets to mean "representatives".

[16] The decision is designated as Reg. No. 86 K/AG/1994.

[17] The entitlement of the deceased's spouse, for example, depends on whether the deceased was survived by one or more children. In that context the tradition interpreted walad to mean either male or female children (Coulson, 1971: 66).