Muslim Law and Adat Encounter: The experience of Indonesia
While much has been written about the relation between Islamic law and customary law in Muslim countries for the most part, the literature reflects the conflict approach. To date, this methodological framework persists as most western Islamicists continue to view the encounter between the two legal systems as conflict ridden. This thesis is an attempt to reevaluate this entrenched paradigm. By utilizing the principles of Islamic Legal methodology (usul al-fiqh) in conjunction with legal and socio-political approaches, this study seeks to shed new analytical light on the encounter of Islamic law with adal law (customary law) in Indonesia. The two legal systems it is argued, have a shared existence long pre-dating the intervention of the colonial powers in Indonesia’s legal affairs, which sparts of accommodation and coexistence. In what is both a syncretic and a purist society, Indonesians have successfully harmonized the two legal traditions such that compromise and derivative solutions, based upon elements from both legal systems, have often been attained. In post-colonial Indonesia, the dialogue between the two sets of laws persists today as the tradition of avoiding conflict in legal resolution continues uninterrupted by the flux in legal policy from colonial to national rule. Family law in particular illustrates the endurance of such phenomenon in the current period. Three cases = conditional repudiation, Common property in marriage and obligatory bequests – are discussed as models of the two substantive legal systems working jointly to construct a new legal entity. The conciliatory exchange between Islamic and customary law in Indonesia refutes therefore the paradigm by which the two legal systems are posited as irreconcilable.
A thesis submitted to the Faculty of Graduate Studies and research in partial fulfillment of the requirements of the Degree of Master of Arts in Islamic Studies, Institute of Islamic Studies, Mcgill University, Montreal