Changing Constellations of Legal Pluralism in West Sumatra, Indonesia (jointly with Prof. Keebet von Benda-Beckmann)

Changing Constellations of Legal Pluralism in West Sumatra, Indonesia (jointly with Prof. Keebet von Benda-Beckmann)

Changes in Dispute Management

The research involves an analysis of the long term developments in the differential use of civil and religious courts in disputes about property in Minangkabau, West Sumatra. Building upon earlier research in the 1970s, the use of different legal repertoires and of state courts is traced into the present time (see F. von Benda-Beckmann 1979; K. von Benda-Beckmann 1984). An important focus lies on disputes over land rights and inheritance, because that still is the single most important source for conflict in rural and semi-urban areas. When processing property and inheritance disputes outside the local community, Minangkabau disputants have a choice between ordinary civil courts and Islamic courts. At the most basic level, the choice of one court reproduces the legitimacy of the rules and values through which it is constituted. The legal repertoire used to legitimate rights to land and inheritance by disputing parties and state institutions is a strong indicator of the relative significance of the different legal orders. The quantitative use of these courts therefore is an important indicator which type of institution and underlying constitutional principles are important.

There has always been a tension between adat and state law in relations between local people and the state. In the struggle between adat and Islam over legal supremacy, inheritance was and continues to be the key issue, despite the shifts in inheritance law from strict matrilineal principles to more bilateral inheritance. Apart from actual decisions on the distribution of property, the question discussed is to what extent these earlier changes were due to the influence of Islamic law and to processes of modernization, and whether they signified a switch from adat to Islam or were changes within adat.

Since the 1980s, there have been several important developments in the role of Islam and Islamic law and institutions. The jurisdiction of Islamic courts has been expanded in the 1980s and 1990s. In 1989 a uniform system of Islamic courts throughout Indonesia was created. In North Sumatra, which is going through a period of extreme Islamisation, this has led to a dramatic shift away from civil courts to Islamic courts in land matters (Bowen 2000). The question is, whether this is a general trend throughout Indonesia. Data of some 8 civil and religious courts were collected in collaboration with colleagues from Andalas University in Padang. Preliminary analysis suggests that there is a surprising continuity of court use in property disputes in West Sumatra and that the majority of cases of the civil court is still on landed property held under adat rights. Moreover, inheritance of family property is hardly dealt with by Islamic courts.


References

Benda-Beckmann, F. von 1979. Property in social continuity: Continuity and change in the maintenance of property relationships through time in Minangkabau, West Sumatra. The Hague: Martinus Nijhoff.

Benda-Beckmann, F. von, and K. von Benda-Beckmann. 2001. "Actualising history for binding the future: Decentralisation in Minangkabau" in Resonances and dissonances in development: Actors, networks and cultural repertoires. Edited by P. Hebinck and G. Verschoor, pp. 33-47. Assen: van Gorcum.

––––. 2005. "Democracy in flux: Time, mobility and sedentarisation of law in Minangkabau, Indonesia" in Mobile people, mobile law: Expanding legal relations in a contracting world. Edited by F. von Benda-Beckmann, K. von Benda-Beckmann, and A. Griffiths, pp. 111-130. Aldershot: Ashgate.

––––. 2006a "Changing one is changing all: Dynamics in the adat-Islam-state triangle" in Dynamics of plural legal orders. Special double issue of the Journal of Legal Pluralism and Unofficial Law Nrs. 53-54/2006. Edited by F. von Benda-Beckmann and K. von Benda-Beckmann, pp. 239-270. Berlin: Lit.

––––. 2006b. "How communal is communal and whose communal is it? Lessons from Minangkabau" in Changing properties of property. Edited by F. von Benda-Beckmann, K. von Benda-Beckmann, and M. G. Wiber, pp. 194-217. Oxford: Berghahn.

––––. 2007a. "Between global forces and local politics: Decentralisation and reorganisation of village government in Indonesia" in Globalisation and resistance. Law reform in Asia since the crisis. Edited by C. Antons and V. Gessner, pp. 211-252. Oxford and Portland: Hart Publishing.

––––. 2007b. "Ambivalent identities: Decentralization and Minangkabau political communities" in Renegotiating boundaries. Local politics in post-Suharto Indonesia, Verhandlingen van het KITLV 238. Edited by G. van Klinken and H. Schulte Nordholt, pp. 417-442. Leiden: KITLV Press.

Benda-Beckmann, K. von 1984. The broken stairways to consensus: Village justice and state courts in Minangkabau. Verhandelingen van het Koninklijk Instituut voor Taal-, Land- en Volkenkunde. Vol. 106. Dordrecht, Leiden, Cinnaminson: Foris Publications, KITLV Press.

Bowen, J. R. 2000. Consensus and suspicion: Judicial reasoning and social change in an Indonesian society 1960-1994. Law and Society Review 34:97-127

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