VAN VOLLENHOVEN

ON
INDONESIAN ADAT LAW
From a press photograph, Batavia 1932
 KONINKLIJK INSTITUUT
VOOR TAAL-, LAND-EN VOLKENKUNDE

TRANSLATION SERIES 20

VAN VOLLENHOVEN
ON
INDONESIAN ADAT LAW
Selections from
HET ADATRECHT VAN NEDERLANDSCH-INDI~
(Volume I, 1918; Volume II, 1931)

edited by
J. F. HOLLEMAN

with an Introducdon by
H. W. J. SONIUS

Springer-Science+Business Media, B.V. 1981

Translation by:
J. F. Holleman
Rache! Kalis
Kenneth Maddock

The translation of this work has been made possib'e by a

generous subsidy from the Netherlands Organization for the
Advancement of Pure Research (ZWO) at The Hague.
For its publication a substantial contribution was received
from the former Adatrechtstichting.

© 1981 by Springer Science+Business Media Dordrecht

Originally published by Martinus Nijhoff1981.
Softcover reprint ofthe hardcover 1st edition 1981
All Tights TeseTved, including the Tight to translate
OT to TepToduce this book OT paTts theTeof in any form.

ISBN 978-90-247-6174-6 ISBN 978-94-017-5878-9 (eBook)

DOI 10.1007/978-94-017-5878-9
To the memory of F.D.H. and J.H.A.L.
who sacrificed so much to this venture
but did not live to see the result.
 CONTENTS

Foreword by J. F. Holleman . IX
Acknowledgements . . XXIV
Editorial notes XXV
Orthography, XXV; Abbreviations, XXVI
Introduction by H. W. J. Sonius . . . . . XXIX
Notes, LXV; Works cited, LXVI
Chapter I Adat, Adat Law, Native Law 1
Chapter II The Elements of Adat Law . 7
Chapter III The Study of Adat Law 24
Chapter IV Law Areas . . . . 41
1. Genealogical groupings . . . 45
2. Territorial and genealogical groupings 48
3. Territorial groupings without genealogical communities . 49
4. Voluntary corporate associations . . . . . . . . 51
Chapter V Aceh 54
Sources, 54; Delimitation, 55; Jural communities, 56;
Individuals, 60; Executive, judicial, legislative powers, 62;
Justice, 71; Indigenous legislation, 78; Inter-local law,
78; Law of kinship, 79; Marriage law, 81; Law of
succession, 91; Land law, 95; Law of chattels, 106;
Wrongs, 113; Legal remedies, 118; Developments, 119
Chapter VI The Minangkabau Law Area. . . . . . . 123
Delimitation, 123; Law of kinship, 124; Jural commu-
nities, 126; Individuals, 127; Executive, judicial, legis-
lative powers, 128; Justice, 132; Indigenous legislation,
Contents VII

133; Inter-locallaw, 134; Law of marriage, 134; Adat

pusako, adat kamanakan, 135; Law of succession, 136;
Land law, 137; Law of chattels, 140; Wrongs, 141;
Legal remedies, 143; Developments, 144
Chapter VII Central and East Java, with Madura . . 145
Delimitation, 146; Jura! communities, 147; Individuals,
155; Viilage government, 159; Law of kinship, 165;
Law of marriage, 169; Land law, 179; Law of chattels,
198; Wrongs, 210; Legal remedies, 212
Chapter VIII The Maintenance and Development of Indo-
nesian Adat Law 213
1. Voluntary observance . 213
2. Attested observance 222
3. The role of the Courts . 230
4. Binding character of adat law . 256
Chapter IX Epilogue . . . . . 260
Annex A Guide to Adat Research (1910) . 262
Annex B Publications on adat law by C. van Vollenhoven
(A) Het Adatrecht van Nederlandsch-Indie
Table of Contents:
Vol. I (1906-18) . . . . . . . 266
Vol. II (1924-31) . . . . . . . 267
Vol. 111 (Essays on adat law, 1901-1931) . 271
(B) Other publications 275
Notes 276
Bibliography 282
General Index 291
Index of places, ethnic groups, and languages 303
 FOREWORD

I.

The plan to prepare a translated selection of Professor Van Vollen-

hoven's writings on Indonesian adat law was first seriously mooted in
the early 1950s. The motivations for such a venture were clear and
compelling. For more than three decades, from the turn of the century
until his premature death in 1933, Van Vollenhoven had been the
mastermind and driving force behind the first systematic study of the
rieb variety of indigenous Indonesian law, and the foremost champion
of its reeognition in the eolonial system of the Duteh East Indies. His
influenee on eoloniallegal policy had been immense (see Introduction,
below). His towering seholarship and rare powers of persuasion as a
writer and teaeher had inspired a whole generation of workers in the
field - eolonial servants, aeademics, missionaries and others - whose
researehes had yielded a vast new adat law literature, all faithfully east
into the eonceptual eategories and distinetive terminology whieh Van
Vollenhoven had designed to stress the 'oriental' identity of Indonesian
law. Yet very little ofthisrieb store of knowledge was accessible to the
outside world. Admittedly, in 1948, Hoebel and Schiller had published
an English edition of Ter Haar's authoritative 1939 treatise on Indone-
sian adat law, but of the master's own writings in this field virtually
nothing was known to non-Duteh readers, exeept a French translation
(1935) of his brilliant essay on the 'discovery' of adat law (1928) and a
few short papers in English and French.
Holland had lost the Duteh East Indies, but eould pride itself on a
wealth of scholarly studies on every aspect of Indonesian life and cul-
ture, which, if translated into a world language, might be of benefit to
scholars everywhere. (The Royal Institute for the Tropics in Amster-
dam had, in fact, already started with a long-term programme of trans-
lating seleeted Dutch studies on Indonesian culture.) Moreover, there
X Van Vollenhoven on Indonesian Adat Law

was evidence that the English version of Ter Haar's book had aroused
the interest of foreign scholars in the writings of Van Vollenhoven
himself, among them experts on African law like Gluckman and
Phillips (letter P. J. Idenburg to J. W. M. van Eysinga, 23/6/52).
Under the aegis of the Leiden Institute of Oriental Sturlies (Oostersch
Instituut) a commission was formed to explore the possibilities. lts
members included the Leidenprofessors F. M. van Asbeck, V. E. Korn,
R. D. Kollewijn, J. H. A. Logemann (chairman), and Dr. J. Prins-
all of whom had studiedunder Van Vollenhoven.
From the beginning it was realized that only a small selection from
Van Vollenhoven's vast oeuvre on adat law could be contemplated,
and that even the production of a relatively modest volume would
present major problems of translation and editing.
The main problems, as seen by the commission, were two. First, Van
Vollenhoven's highly individual style would be difficult to reproduce
in English, and in particular the problern of finding suitable English
equivalents for the technical terminology he had designed would pre-
sent a major challenge.
Secondly, Van Vollenhoven had written with an eye to administra-
tive and judicial officers in the Dutch colonial service, and his descrip-
tion and analysis of indigenous institutions and legal concepts were
closely interwoven with a critical scrutiny of statutory provisions and
administrative practices. However pertinent at the time, many of these
were no Ionger relevant, or were even incomprehensible to English
readers not thoroughly acquainted with the complexities of the pre-war
legal and administrative system in the Dutch East Indies. Moreover,
eschewing footnotes, Van Vollenhoven had put his often very extensive
and predominantly Dutch source references in parentheses. In a trans-
lated text most of these would needlessly encumber readers who have
no Dutch. In short, the preparatory work alone of 'pruning' the
selected texts before their translation would demand a very consider·
able scholarly effort and amount of time.
The commission thought it wise to invite Dr. A. Phillips (then at the
London School of Economics) as an external adviser. Hirnself no
reader of Dutch, Phillips welcomed the project as likely to stimulate
the growing numbers of Anglo-American scholars in the field of
customary law, but in view of Van Vollenhoven's stylistic and termino-
logical idiosyncracies he stressed that the production of a 'good and
easily readable English text' was of first importance if the work was to
make any impression at all. Furthermore, the work would need an
Foreword XI

authoritative introductory essay outlining the historical significance of

Van Vollenhoven's work, showing its background in the complex ad-
ministrative and legal system of the Dutch East Indies, the trends in
Dutch coloniallegal and economic policy, and the development of adat
law schotarship from the early 1900s onwards.
A further difficulty, never fully appreciated by the commission, was
that its own persistent striving for near-perfection was to prove a major
obstacle to the satisfactory completion of the work within a reasonable
time.
My father, F. D. Holleman, was invited to write the Introduction
and to prepare the Van Vollenhoven texts for translation. He had been
a student of Van Vollenhoven, and his successor to the Leiden chair of
Adat Law between 1934 and 1939, but had since retumed to his native
South Africa, where he taught at Stellenbosch University. His academic
commitments made him decline the first task, but he agreed to take care
of the second when he was told that his son was being asked to make
the translation. (Phillips, having read some of my publications on
African customary law, conceded that my command of English, though
'not perfect' and probably in need of some expert editing, might be
good enough to turn out a translation not unworthy of Van Vollen-
hoven's scholarship. My familiarity with his work and my training in
this field of study were considered distinct advantages.)
I accepted the task after much hesitation. I had more than enough
work in hand at the time, which even prevented me from working up
my own field material the publication of which was overdue. Also I
had little experience as a translator, and though much less familiar
with Van Vollenhoven's writings than the commission seemed to
believe, I had read enough of his work to have some idea of the formid-
able difficulties I would face. The selection was to be taken entirely
from the monumental Adatrecht van Nederlandsch-Indie, a work in
which, more than in most of Van Vollenhoven's writings, the force of
his pure if slightly archaic language was likely to be lost through his
frequent use of a highly involved syntax, utterly different from English
usage. Though written in my mother-tongue I had found the Adatrecht
no easy reading, and the portent of some passages had escaped me
because I lacked the inside knowledge of the Dutch colonial system,
and of its problems and practices, which the leamed author evidently
assumed his readers would have.
On the other hand, knowing the veneration with which Van Vollen-
hoven was regarded in Dutch academic circles (1, too, deeply admired
XII Van Vollenhoven on Indonesian Adat Law

him) it was difficult to turn down an urgent appeal from people I had
known and respeeted in my youth when they were my father's eollea-
gues in the Law Sehool at Batavia (now Jakarta).
To be entrusted with a task whieh they considered to be of such im-
portanee aeademically and a fitting tribute to one of the greatest
seholars Duteh legal scienee had known, was an honour to whieh I
was not insensitive. But the main reason why I agreed to take on the
job (its remuneration would be a mere pittanee) was the prospeet of
close eollaboration with my father in a vocational fellowship whieh
meant much to both of us, even though we would have to eommunieate
by Ietter between Bulawayo, where I lived at the time, and Stellen-
boseh, some 1500 miles away.
We bravely set about our task in January, 1954. The commission in
Holland expressed the hope that the translation would be eompleted in
about two years, which I eonsidered wildly optimistie for I had warned
Logemann that I doubted if I eould spare it more than a few hours in
the evening. But even in my most pessimistie moments I eould not
foresee that twenty-five years later I would still be burdened with it.

II.
The seleetion made by Logemann's eommission eomprised these see-
tions from Vols. I and II of Van Vollenhoven's Adatrecht (cf. the table
of contents in Annex B):
First Part, eh. I: Adat, Adat Law, Native Law lOpp.
eh. II: The Elements of Adat Law 25 pp.
eh. IV: The Study of Adat Law 37 pp.
Seeond Part, eh. I (2): Aeeh 78pp.
(18): Central and East Java and Madura 150 pp.
Third Part, eh. I-III: The Maintenanee of Adat Law 172 pp.
Fourth Part, eh. VII: Confliet of Private Laws 15 pp.

Total: 487 pp.

This was mueh more than had been initially eontemplated, but the ex-
cision of passages thought to be of no interest to English readers was
expeeted to reduee the number of pages eonsiderably.
As the first three seetions were part of Van Vollenhoven's methodo-
logieal 'orientation', the eommission agreed to my request to add the
short seetion on 'Law Areas' (Seeond Part, ehapter I,l), whieh I eon-
Foreward XIII

sidered to be indispensable to the understanding of his methodology.

Aceh (composed in 1908-9) was selected because it was the first of
Van Vollenhoven's systematic 'area' studies, cast under the headings
and in the terms which were to become standard practice in virtually
all later adat law studies. Central and East Java and Madura (1917)
represented what many considered to be his most accomplished exposi-
tion of a coherent body of living adat law in an area widely believed to
be virtually devoid of it after centuries of foreign occupation. The
chapters on the maintenance of adat law ( 1926) were an obvious
choice, being not only a masterly treatise on the judicial process and
various forms of adat law observance, but an invaluable guide to
government courts on the essential nature of indigenous justice.
The short chapter on the internal conflict of laws (1931) did little
more than annotate problems met with in legal commerce between
parties of different legal (sub-)cultures, a subject sufficiently important
to form a separate discipline, Intergentiel Recht, in the Batavia Law
School (where its mostprominent exponent was R. D. Kollewijn, later
at Leiden and a member at the commission). This chapter was dropperl
from the selection many years later, when after Logemann's death the
whole project was reviewed and some changes were made (see below).
The Introduction - the commission envisaged a comprehensive
scholarly essay of some hundred pages -was to be written by Prof.
C. T. Bertling of Amsterdam, also a student of Van Vollenhoven (Korn,
my father's successor at Leiden and an obvious first choice, had de-
clined to undertake what he rightly feared to be a most arduous task).
To my dismay I heard that I was to translate the Introduction, too, in
order 'to preserve a certain unity of style'. I shall return to its fate later.
It was agreed that the translation would be posted to Holland in
instalments as the work progressed, each batch of 20-40 typewritten
pages going to each member of the commission in turn to be scru-
tinized, as weil as to Phillips in England, who had generously agreed to
supervise my exercise of the King's English. All comments would then
be sent back to Africa for our consideration.
Between Father and me a similar shuttle service operated, and my
files show that every part of the translation travelled at least four times
in both directions across the Limpopo River in a lively exchange of
comments and suggested improvements before being finally retyped
and sent off to Holland, where we hoped it would meet with the com-
mission's (and Phillips') approval. The search for suitable technical
terminology posed special problems often requiring a good deal of con-
XIV Van Vollenhoven on lndonesian Adat Law

sultation and research. Van Vollenhoven had designed a whole new

range of legal terminology in order to avoid the misleading habit among
most jurisprudents of too readily employing westem juridical terms for
oriental conceptions and institutions which superficially resembled those
of the west. Sometimes his inventions had been inspired by early Dutch
or biblical usage, but as often as not they were products of his imagina-
tive linguistic craftmanship. Where a literal translation would be un-
English or incomprehensible, we had to go back to the Indonesian
institution or concept itself in order to think up an appropriate English
name for it (my excursions into old Anglo-Saxon law were less fruitful
than I had hoped they might be).
Initial progress was slow, despite the fact that for the first four
months I was unemployed and could therefore devote all my time to
the translation. Trying to reproduce (as the commission dearly hoped)
Van Vollenhoven's characteristic style and often striking idiom in the
'good and easily readable English' on which Phillips had insisted,
proved to be far more difficult than I had feared it would be, and it
took me several weeks to make some headway. (The brief and decep-
tively simple opening sentence alone was completely redrafted seven
times and even then failed to satisfy us; it was not until the final revi-
sion, many years later, that Maddock and I hit upon the right for-
mulation.)
But three months later (April 1954) we were able to despatch the
first few chapters, some forty pages of typescript, with which we felt
reasonably satisfied. The commission found it (letter Kollewijn, 11/5/
54) 'a most encouraging start', but felt doubtful about some of our
terms and the accuracy of some passages. Phillips expressed reserva-
tions about the quality of the English: 'good but not perfect', clearly a
euphemism, for he urged that it be thoroughly purified by a competent
English editor.
We had, of course, expected criticism, but when we received the
manuscript back, several months later, it was absolutely littered with
suggested changes which the commisioners and Phillips had scribbled
on it, and we had to grit our teeth. lt was not only that revision as
indicated would require weeks of extra work and lengthy correspond-
ence to sort out the many technical points on which we differed with
the commission. We also realized that it would be impossible for us to
achieve the 'accuracy' which the commission evidently wanted of us
with regard to Van Vollenhoven's idiom, while producing a text which
would satisfy an English purist.
Foreword XV

An even more nagging problern was the fact that I was now fully
employed and that my regular work (first in Salisbury, then in Bula-
wayo) demanded so much of my time and energy that I could not spare
more than six to ten hours a week for the translation, and even that far
from regularly. Production slowed down to a trickle, which worried us
as much as it did the commission, but neither side was yet prepared to
acknowledge defeat. By the time I moved to Durban (1957) to
take charge of the University of Natal's Institute for Social Research,
we had completed Aceh and made a start with Java. Knowing that my
new employment would require me to be away from home for weeks
on end, I wrote to Father and Logemann suggesting that the time had
come to face realities and to make other arrangements. But they urged
me to go on, hoping for a favourable turn of the tide. By the end of the
year and about half-away through the Java chapter, I learned that my
father was incurably ill and that our splendid partnership would soon
end. I wrote to Logemann that I had to give up, and I was grateful for
the understanding he showed. After Father's death in January 1958, I
sent Logemann whatever I still had in draft translation. It included
a section I had found on my father's desk. His careful emendations had
stopped at mid-page ...

III.
When I accepted the Leiden chair of African studies in 1963, Loge-
mann had already retired from academic life. In spite of our close
relationship, - it was he who had persuaded me to come to Leiden -
he was reticent about the state of the Van Vollenhoven translation. But
I understood from him that professional translators had been working
on it from time to time under his supervision, but that progress had
been painfully slow and that the work was far from completion.
My translation (after some revision) had been retained, except for
the unfinished Java chapter. He admitted that he had much underrated
the technical difficulties involved, but that working with professional
translators posed problems of an even more intractable kind ('like
prima donnas, they can be the devil to play with').
Despite his disheartening experience, he was still determined to see
it through, 'provided of course, that I live long enough'.
He did not.
After his death (late 1969) I 'inherited' the Van Vollenhoven ma-
terial 'to dispose of as you think fit', a stack of carefully ordered files
XVI Van Vollenhoven on lndonesian Adat Law

reaching two feet high, containing everything clone so far, including a

vast amount of correspondence and minutes reflecting seventeen years
of frustrating efforts. lt made depressing reading.
I found Bertling's long Introduction. lts Dutch original, revised
several times at Logemann's insistence, had been completed in October
1957, and translated professionally in 1959. But in 1961, after the Van
Vollenhoven project had been transferred to the Royal Institute for the
Tropics in Amsterdam to form part of its series of translated Dutch
studies on Indonesia, the Institute's editorial committee decided, with
Logemann's consent, to drop the whole Introduction 'for financial
reasons' in favour of a brief Foreward (not yet written) - a poor
reward for more than three years of diligent effort.
Doubts about the quality of my own translation appeared to have
been more persistent than Logemann had ever let on to my father and
me. The manuscript had finally been submitted to a reputable Ameri-
can adat law scholar for his 'frank opinion'. He found it to be 'good
and faithful', requiring only a little expert editing to make it fully
acceptable. (Reading my own text agairr after an interval of more than
twelve years, I thought that he had been too kind, and that it would
need more drastic treatment.)
I was shocked to discover that, apart from Bertling's ill fated intro-
ductory essay, no more than 25 'approved' pages of Van Vollenhoven
text had been added to my own translation - a pitiful yield for a ten-
year period.
The correspondence files revealed the whole sad story, which need
not be told here in all its detail. Suffice it to say that, after I had given
up the work, the commission believed that quicker and better results
would be achieved by engaging fully qualified, English-born translators
with experience of scientific writings. But such people proved to be
extremely rare, and usually freelancers mainly dependent for their
livelihood on assignments from regular 'customers' (publishers, maga-
zine editors) whose deadlines had to be met in order to keep their
custom. The Van Vollenhoven project was subsidized on the basis of a
fixed rate per word. This may have been sufficient remuneration for a
reasonably smoothly running translation process. lt was hopelessly
inadequate for a work which not only demanded much more time and
concentrated study than a non-salaried man could afford to give it, but
which was also burderred by the same wearisome repetition of scrutiny
and revision by exacting Dutch adat law scholars with insufficient
command of English which had already been irksome to my father
Foreword XVII

and me many years earlier, but which sooner or later proved to be

intolerable to hard-pressed and highly sensitive professional trans-
lators.
The results were disastrous. The first engagement (1960) of nearly
twelve months yielded 25 approved pages of Van Vollenhoven text.
The second and last engagement - six years later! - though lasting
even longer, did not produce a single page that fully satisfied the
editors, but it left the files full of letters which spoke only too clearly
of an exhausting battle between a fast ageing but still courteously
persisting, retired academic, and an increasingly recalcitrant, if self-
opiniated, member of the translating profession.

IV.
The decision to resume the project, though in a somewhat revised form,
was taken around the middle of 1971 by an ad hoc committee of the
(now defunct) Adat Law Foundation in Leiden. Besides myself as con-
vener, its members were:
Professor J. Prins of the University of Utrecht, the only surviving
member of the original commission;
Mr. H. W. J. Sonius, an old student of Van Vollenhoven with a long
and distinguished career in the pre-war Dutch East Indies administra-
tion;
Professor G. van den Steenhoven of the University of Nijmegen, who
was doing much to restore a working relationship with Indonesian adat
law scholars, which had been badly disrupted by the war and Indo-
nesia's independence.
Needless to say, it was a difficult decision, based more on good faith
and a feeling that a debt of honour had to be discharged, than on sober
reckoning. Frankly, I dreaded it, for I estimated that about two-thirds
of the work had yet to be clone. Having read through my own (profes-
sionally edited) part of the manuscript and scrutinized the other
approved pages, I thought the first still to need thorough revision and
the second to be so full of inaccuracies as to need re-doing. Moreover,
I knew that, no matter how much assistance and moral support my
colleagues gave me, mine would unavoidably be the main burden. For
I now held the chair that had been Van Vollenhoven's and my father's,
a chair saved mainly by Logemann's efforts when, after the dis-
mantling of the East Indies colonial administration and the retirement
of Korn, there seemed little incentive for the Leiden law faculty to
 XVIII Van Vollenhoven on Indonesian Adat Law

retain it. So it was not only to Van Vollenhoven's memory that a debt
of honour had to be paid.
The new editorial committee made some changes in the plan of the
book. We re-adopted Arthur Phillips's idea of an introductory essay as
an essential framework for English readers unfamiliar with the vicis-
situdes of Dutch colonial policy and the complex legal and administra-
tive system in the East Indies. But the essay needed to be far more con-
cise than Bertling's had been; and it had to include a section on
problems of legal pluralism to replace Van Vollenhoven's short and
rather fragmented chapter on the intemal conflict of laws, which we
had decided to drop. Sonius, who was now retired, was eminently
qualified for this difficult task.
We added the brief area study of Minangkabau to the selection,
mainly because its divergent social structure and its peculiarities of
family property had so intrigued Van Vollenhoven (the data then
available were sparce) that he deviated from his normal order of
headings.
On the other hand, we drastically cut the long chapter on Java and
Madura and the even Ionger section on the maintenance of adat law.
Thus space was made for what we hoped would be an interesting com-
parison of colonial and post-colonial attitudes to adat law. For this
purpose we meant to choose two of Van Vollenhoven's mostoutspoken
essays on legal policy (including the famous 'No Lawyers' Law for the
Indonesian' of 1905), and we invited a number of prominent Indone-
sian legal scholars to evaluate his work and views in the light of
Indonesia's current policy and of the conceptions that were now held
of the place of adat law in the national legal system. Much to our
regret, we later had to abandon this promising venture because of
editorial difficulties.
We also agreed on a simpler working method. Sonius would be
largely responsible for excising 'redundancies' from Van Vollenhoven's
text; I would then annotate every page with detailed directions for the
translator, the supervision and final judgement of whose work was to
be entirely my responsibility. We thus hoped to avoid the paralysing
rounds of scrutiny by individual committee members all striving for
perfection. Although I was to be free to consult my colleagues when I
needed their technical advice, only the final draft of the translation as
passed by me would be submitted to them, and then only for essential
emendations.
The next step was to find a suitable translator. This was crucially
Foreword XIX

important, because after Logemann's experience I would not work

with professionals. We wanted a native speaker of English with a good
ear for language, preferably with an academic background, with a
sufficient grasp of Dutch to understand Van Vollenhoven's idiom
(helped, where necessary, by my annotations). Translating experience
would be useful, but more important was the will to see the long and
difficult job through in a spirit of give and take. Logemann, unsure of
his English, had conceded to the professionals their demand for the
final say in 'all matters of English usage', with the commission being
left to rule only on 'technical terminology' and on faulty interpretations
of V an Vollenhoven's text. This had led to endless debates and even to
such absurdities as the refusal of one translator to use the term 'adat
law' because the adjective was 'un-English'. (Logemann, who must
have been very tired, finally compromised by accepting 'customary
law', which Van Vollenhoven hirnself had occasionally used.) What
Logemann never fully realized - and these translators apparently
would not admit - was that the linguistic and technical problems
posed by this translation were so closely interwoven as to make it well-
nigh impossible to draw a clear line between the translator's and the
editor's respective fields of competence and final responsibility. Willing
though I was to respect a translator's craftmanship and to welcome his
inventiveness, I would not surrender responsibility for the final pro-
duct.
Late in 1971, on the recommendation of one of my Leiden collea-
gues, we engaged Mrs Rachel Kalis as translator. A young English-born
housewife, academically qualified in anthropology and married to a
lawyer, she had some experience of translating Dutch scholarly
writings. Our long tale of past frustrations did not discourage her, nor
did the many corrections which I had seen fit to make in her test-
translation of a piece of Van Vollenhoven as a fair warning of what
she could expect. She undertook the task on my terms, and she saw it
through in a fine spirit of co-operation which did not flag in spite of
her returning to England, raising a family, and moving house several
times. I am deeply grateful for her perseverance and loyalty.
When the translationwas resumed, early in 1972, some of us hoped
that it might be completed in 1974, the centenary ofVan Vollenhoven's
birth, but this, too, was over-optimistic. What with domestic responsi-
bilities on one side of the English Channel and academic commitments
on the other, the translation remained what it had always been: a
demanding and much interrupted spare-time occupation. Not until
XX Van Vollenhoven on Indonesian Adat Law

spring, 1976, was the main task at an end, though I still had to revise
my earlier translation of the first five chapters, and to try to bring
greater unity of style into the work as a whole.
In the meantime, Sonius' Introduction, too, had been completed
(and translated by Mrs Kalis), a scholarly essay, which unfortunately
was too long for us. At his request, the Dutch version was therefore
published separately (Institute of Folk Law, University of Nijmegen,
1976), an abbreviated and slightly revised English version being made
for the present volume.
Overwork and ill-health prevented my getting down to a general
revision until I took final leave in January, 1979. I had prepared my-
self for a long and solitary effort. I was, instead, presented with the
most stimulating collaborator I could have wished for: Kenneth Mad-
dock of MacQuarie University, New South Wales. A trained lawyer
and anthropologist, actively interested in customary law (aboriginal
land rights, Northern Territory), he had become familiar with Van
Vollenhoven's and other Dutch writings on Indonesian adat law during
two years of study leave in Holland. Maddock brought to the transla-
tion what it needed most at this late stage: a fresh, inventive mind, a
keen eye for essentials and, above all, a sense of fun in spotting simple
solutions to seemingly intractable problems of language. The three days
we spent together going over the first fifteen pages (which I had already
revised) changed a dreary process of correction into an exhilarating
contest in English marksmanship. It resulted in the kind of revision I
had hoped for but could never have done alone. The new spirit pre-
vailed also after he had left for Australia and we had to continue by
post, covering page after typewritten page with scribbled corrections
and comments. When we reached Mrs Kalis' translation, she sportingly
joined in the game.
Fifteen months later (spring, 1980) we had reached the end of the
long trail.

V.
The two hefty volumes of Van Vollenhoven's Adatrecht were first
published in fourteen instalments between 1906 and 1931 (see publish-
ing schedules, Annex B). Barring any further mishaps, this selection
- barely one-sixth of the original - will appear almost exactly fifty
years after the last, eagerly awaited, instalment, which moved the
editors of a leading law journal to write:
Foreword XXI

'Our humble tribute to the scholar who laboured for twenty-five

years to raise this monument. Tcrday a source of reference for
the practitioner, it will stand as a model of schalarship for many
years to come' (ITR, 134/4, 1931).
Unlike Ter Haar's more accessible work, Van Vollenhoven's Adatrecht
is no Ionger a work of reference in present-day Indonesia - in fact,
very few university libraries there have a copy. Even in the Nether-
lands, only a handful of scholars can claim to have read it. lt has come
tobe looked upon as a colonial relic, 'relevant only to historians'.
The commission of eminent scholars who decided that a choice of
Van Vollenhoven should be published were of a different view. All of
them had many years of administrative or judicial experience in the
East Indies, which had given them the opportunity to gain a deeper
understanding of adat law, not merely for the sake of scholarship, but
for the higher purpose stated by Van Vollenhoven: 'our loftiest aim is
the creation, not on paper but in reality, of a good administration of
justice and a good system of government ... two things that cannot be
attained without a solid knowledge of popular law and popular con-
ceptions' (1909:90). They hoped that this publication would foster the
same motivating spirit among other workers in the fields of customary
law and of legal development in culturally plural societies. The colonial
era was then fast approaching its end, and many newly independent
governments would soon face the same problern of how to accommo-
date the diversity of living popular law with received western law in a
coherent system of comprehensible justice for all. The Dutch experience
might still hold a lesson for others.
Now, more than a quarter of a century later, scores of new states are
pursuing policies of legal reform which are often more radical and
western-orientated than Van Vollenhoven and his followers would
have considered advisable. I t may be argued - as Sonius points out in
his lntroduction- that Van Vollenhoven was being too conservative
when he fiercely defended traditional values and institutions. And,
indeed, anyone with more recent experience of the grass-roots of law in
these indigenous societies can testify that much is no Ionger traditional;
but also - and this point is crucial - that these changes were seldom
intended by legal reformers. Mostly they have been popular responses
to the compulsion of social and economic change, giving rise to new
trends and developments in the living law of which government courts
are all too often ignorant. Add the declining authority of traditional
local tribunals (if recognized at all), and the certainty of law for com-
XXII Van Vollenhoven on Indonesian Adat Law

mon folk becomes highly doubtful. In fact, Van Vollenhoven's ideals

of good government and of a system of justice comprehensible to all,
based on solid knowledge of popular law and popular conceptions, is
more remote than ever. Therefore, the greater the need for system-
atically applied and constructively critical scholarship, founded on
patient investigation and close observation of the realities of legal life.
For these reasons, a choice of Van Vollenhoven's seminal work may
still be of more than historical value.
Although much of his descriptive material is obviously dated (as,
indeed, it tended to be when he was writing), his trea1tnent of it still
stands out for his perceptive interpretation of the basic legal concep-
tions, relationships and institutions which operate to this day at the
grass-roots of Indonesian legal life. This is the more remarkable be-
cause Van Vollenhoven never did field-work, but this Iack was more
than compensated by his vast erudition, which made him impatient
with western juristic dogmatism and eager to search for what he once
called 'the living face of law'. The East Indies archipelago became a
revelation to him: a 'jumble' in the eyes of a codist, but an 'inex-
haustible source of instruction' to those 'whose desire for knowledge
and explanation of the living law on earth is inspired by the very
diversity of its past and present manifestations'.
There is little explicit theory in Van Vollenhoven's work - the
nearest he comes to a definition of law is in a parenthetical subordinate
clause in the opening sentence of his second chapter - but he has an
unusually wide and critical sense of classification, which Ieads him not
only to organize conceptual categories into coherent systems of law
within homogeneaus 'law areas', but also to the notion of a broader
geographical framework for a comparative, transcultural study of law
which extends far beyond the Indonesian archipelago.
The principal tenets of Van Vollenhoven's approach are discussed in
the Introduction, and little needs to be added here.
The first four chapters unfold the basic pattern of his method, in-
cluding the historical aspect which is essential to all his work.
The next three chapters apply this method to different law areas:
systematic 'inventories' of substantive law and legal practice based on
indigenous conceptions and categories which Van Vollenhoven distilled
from the materials available to him. Only the first of these area studies
is reproduced here virtually in full; the other two have been abridged
(compare the headings with those listed in the Introduction).
Chapter VIII, on the maintenance and growth of adat law, contains
Foreword XXIII

three sections which originally appeared as separate chapters in the

second volume. They were written in 1926, some eight years after the
completion of his area studies, when Van Vollenhoven was able to
draw on fresh field materials. The result was an analysis of the ways of
popular law observance and judicial intervention which for its compre-
hensiveness and perspicacity not only far excelled anything similar
clone before, but even to-day must rank as a rare feat of interpretative
scholarship. The second section establishes 'attested law observance'
- or 'preventive law care', to use Logemann's term- as a distinctive
and vitallevel in the maintenance of law, between voluntary observance
and judicial sanction, and throws new light on the role of authoritative
'witnesses' to important transactions in indigenous legal commerce.
The section on the role of the courts (much shortened here) is largely
based on the practice of those tribonals which were later officially
recognized as 'village justice'. Van Vollenhoven not only makes a
penetrating analysis of what he regarded as the essence of an effective
indigenous administration of justice, but provides an authoritative
guide for government courts entrusted with applying adat law in the
colonial system.
We decided to add the last, very brief, chapter of his Adatrecht as an
'epilogue' to our choice. In the original, it concludes a series of
chapters which Van Vollenhoven had devoted to the critical survey of
successive legal policies and experiments during more than three cen-
turies of Dutch colonial rule, in order to see what lessons might be
drawn for the future. The course of adat law had always been in-
fluenced by two contending forces: its own 'germinating power', and
the impact of foreign influences and demands. These forces would, in
future, diverge even more sharply, and the fate of adat law would
depend more than ever before on the people themselves, on their will
and striving to preserve and adapt their rich cultural heritage. The epi-
logue is not only a hopeful appeal to Indonesian cultural pride, but
also the final testimony of a great western scholar's respect for the
virtues of another culture.

A choice like this, concentrated almost entirely on the adat law of

some of the indigenous peoples of Indonesia, must inevitably fail to
reveal the comprehensiveness of Van Vollenhoven's Adatrecht. We
have had to omit, for instance, the separate sections on the popular law
of so-called foreign orientals - Chinese, Indians, Arabs - in the
archipelago, and the chapters on the religious - pagan, Hindu, Mos-
XXIV Van Vollenhoven on Indonesian Adat Law

lern, Christian- elements in adat law. Likewise, we had to leave out

the major treatise on the place which all this popular law assumes in
the legal system of the East Indies. For an appreciation of the vast
scope and methodical build-up of the Adatrecht, readers are therefore
referred to the translated table of contents in Annex B, which also lists
the titles of his essays on adat law as collected in the third volume of
1933, and of his other publications in this field. (lt may be mentioned
that more than one-half of his massive oeuvre was in other fields of
scholarship.)
In 1910, the newly created Commissions for Adat Law at The Hague
and Batavia issued a brief 'guide' to field research - believed to be
largely composed by Van Vollenhoven. I t is reproduced here as
Annex A. After more than seventy years, it still makes instructive
reading.

Leiden J. F. Holleman
January 1981

ACKNOWLEDGEMENTS

This work has taken so long to complete that many who were involved
in it are no Ionger living. May it suffice to say that they, together with
all those named in the Foreword, deserve praise and gratitude for their
selfless efforts.
Among those not yet mentioned, whose assistance has been especially
valuable when preparing the manuscript for the press, I am greatly
indebted to:
my daughter-in-law Maria, for turning an almost illegible manuscript
into impeccable typescript;
Dr F. von Benda-Beckmann, for his patient search for many a refer-
ence I was unable to trace;
the Royal Institute of Linguistics and Anthropology at Leiden, for
publishing the book in its Translation Series, and for the generous
help by its editorial staff.
But most of all I am indebted to my wife, for her unfailing support
at times when I most needed it.
J.F.H.
Foreword XXV

EDITORIAL NOTES

Many passages from the original text have been omitted because they
were considered to be of little interest to English readers. They range
from a few words or references to whole paragraphs or even pages.
Short omissions are marked by (-), substantial omissions by (- -).
Those wishing to check Van Vollenhoven's own text will find the
original page numbers in square brackets on the left of the present text.
(Note, however, that in chapters VIII and IX these numbers refer to
Valurne II of the original work.)
All editorial matter in the text, notes and annexes is placed in square
brackets: [ ] or [- Ed.].
There are no footnotes in the original, and even the most extensive
source references, as well as much explanatory detail, are included in
parentheses. This has often resulted in sentences of such enormaus
length and syntactic complexity that it was impossible to render them
intact into acceptable English. To overcome this problem, references
have been abbreviated in accordance with modern usage. They have,
however, been kept in parentheses only where they appear one or two
at a time; otherwise they are transferred to notes at the end of the
book. For the same reason, some other unwieldy parenthetical passages,
if worth retaining, had to be accommodated in notes.
Van Vollenhoven made copious use of vernacular terms, but for
their interpretation had to rely on sources which, today, prove to be
not always reliable. Although obvious mistakes have been corrected
in the text, readers with linguistic interests are advised to consult
the dictionaries mentioned in the Bibliography.

Orthography

With a few exceptions, the present-day official spelling of Indonesian

words and names has been adopted - a departure from Van Vollen-
hoven's text, which follows the pre-war spelling. The exceptions mostly
concern the names of pre-war Indonesian authors and publications.
In conformity with accepted usage these are cited in their original
spelling.
The old names of islands like Borneo (now Kalimantan) and CelebeE
(Sulawesi) have been retained, as well as those of administrative divi-
sions in the colonial system; the spelling of place names, however, has
been modernized.
XXVI Van Vollenhoven on lndonesian Adat Law

The following table lists some changes in spelling and provides a

guide to their pronunciation:

Indonesian Dutch Pronunciation

c tj asehin 'choose'
ng ng as ng in 'singer'
ngg ngg as ng in 'finger'
ö eu as eu in French 'deux'
u oe as u in 'full'
j dj as j and dg in 'judge'
y i as y in 'young'
Finally, the special symbol used by Van Vollenhoven for the glottal
stop $ (hamza) at the end of a word in some vernacular languages, has
been replaced by k (e.g. hak, as in Indonesian to-day); likewise, his use
of the symbol ä in Javanese words (pronounced as a in 'war') has been
replaced by a (e.g. desa).
The word adat (custom), of Arabic origin, has very wide currency in
Indonesia, though its pronunciation may differ considerably from one
place to another (see, e.g. page 4, below). Because it is a key-word
in the present study, not only its standard spelling has been maintained,
but it is not italicized, except in vernacular compounds and expressions.

Abbreviations
AB Adatrechtbundels (periodically published volumes of
systematically arranged materials on adat law, 1910-
1955).
ABW Algemeene Bepalingen van Wetgeving voor Neder-
landsch-Indie (General statutory provisions for the N.l.
-Royal Decree 30/4/1847).
BKI Bijdragen tot de Taal-, Land- en Volkenkunde (van Ne-
derlandsch-Indie) van het Koninklijk Instituut voor (de)
Taal-, Land- en Volkenkunde (van Nederlandsch-Indie)
(Journal of the Royal Institute of Linguistics and An-
thropology).
Bb. Bijblad op het Staatsblad van Nederlandsch-Indie (An-
nexes - official circulars, information, etc. - to ISb.).
BI. Bijlagen (Annexes - reports, etc. - to Handelingen).
Foreword XXVII

Enc. N.l. Encyclopaedie van Nederlandsch-Indie (1st ed. 1896-

1905, 4 vols.; 2nd ed. 1917-21; suppl. 1927, 1932,
1935, 1939).
Bindresurne (Er.) (Final report agrarian inquiry in Java and Madura,
vol. I (1876), vol. II (1880), vol. III (1896)).
Handelingen - der Staten-Generaal (Parliamentary proceedings -
the Dutch 'Hansard').
HNIJ Handelingen der Nederlandsch-Indische ]uristenvereeni-
ging (Proceedings N.I. Society of Jurists).
IG De Indische Gids (journal).
IR Inlandsch Reglement (Police regulations and civil pro-
cedure for natives and foreign orientals in Java and
Madura- Royal Decree 5/4/1848).
IS Indische Staatsregeling (1925 Constitution of the N.l.).
I Sb. Staatsblad van Nederlandsch-Indie (Government Ga-
zette of the N.l.).
ITR Indisch Tijdschrift van het Recht (lndies law journal,
successor to RN I).
IWR Indisch Weekblad van het Regt (Indies law weekly).
KAW Mededelingen der Koninklijke Akademie van Weten-
schappen (Communications of the Royal Academy of
Sciences).
KS Koloniale Studien (joumal).
KT Koloniaal Tijdschrift (journal).
KW Koloniaal W eekblad (joumal).
MbZg Maandberichten van het Nederlandsch Zendelinggenoot-
schap (Monthly of the Netherlands Protestant Mission-
ary Society).
MZg Mededeelingen van wege het Nederlandsch Zendeling-
genootschap (Communications of the Netherlands Pro-
testant Missionary Society).
N.l. The Netherlands (East) Indies.
NRC Nieuwe Rotterdamsche Courant (daily newspaper).
PA Pandecten van het Adatrecht (Pandects of adat law), 10
vols., 1914-1936.
XXVIII Van Vollenhoven on Indonesian Adat Law

Plakaatboek Nederlandsch-Indisch Plakaatboek 1602-1811, ed. by

J. A. van der Chijs, 17 vols., 1885-1900 (series of col-
lected Netherlands Indies official documents, 1602-
1811).
RM Rechtsgeleerd Magazijn (law journal).
RNI Het Regt in Nederlandsch-Indie (law journal, 1849-1914,
predecessor of ITR).
RO Reglement Rechterlijke Organisatie . .. in Nederlandsch-
Indie (judicial regulations for the N.I.- Royal Decree
30/4/1847).
Regeringsreglement (Rr.) (1854 Constitution of the N.l.; superseded
in 1925 by IS).
TAG Tijdschrift van het Koninklijk Nederlandsch Aardrijks-
kundig Genootschap (Journal of the Royal Netherlands
Geographie Society).
TBB Tijdschrift voor het Binnenlandsch Bestuur (Colonial
administration journal).
TBG Tijdschrift voor Indische Taal-, Land- en Volkenkunde
van het Koninklijk Bataviaasch Genootschap (Journal
of the Royal Batavian Society).
TNI Tijdschrift voor Nederlandsch-Indie (journal).
VBG Verhandelingen van het Bataviaasch Genootschap (pu-
blications of the Batavian Society).
VG Verspreide Geschritten (Van Vollenhoven's miscellane-
ous writings/papers).
VIG Verslagen van het Indisch Genootschap (proceedings of
the Indies Society).
VKAW Verslagen/Verhandelingen der Koninklijke Akademie
van Wetenschappen (proceedings/publications of the
Royal Academy of Sciences).
VKI Verhandelingen van het Koninklijk Instituut voor Taal-,
Land- en Volkenkunde (monograph series of the Royal
Institute of Linguistics and Anthropology).
WA Wet en Adat (journal, 1896-98).
WR Weekblad van het Recht (law weekly).
ZVR Zeitschrift für vergleichende Rechtswissenschaft (com-
parative law journal).
 INTRODUCTION

I. A jurist at the turn of the tide of Dutch colonial policy

When Cornelis van Vollenhoven, newly appointed as Professor of Con-
stitutional and Administrative Law ·of the Dutch Overseas Territories
and of the Adat Law of the Dutch East Indies, gave his inaugural
lecture on 2 October 1901, his proposed 'exact jurisprudence' had yet
to meet the crucial test of the legal problems created by a changing
colonial policy. Rule by a mercantile company, the United East Indies
Company, had been followed by metropolitan rule by the Dutch
government, the main objective of which was to exploit the East Indies
through agrarian production for the European market (coffee, tea,
indigo, rubber and so on) and development of mineral resources
(chiefly tin), an exploitation which was successively carried out through
state enterprises, compulsory cultivation by Indonesians, and large
private plantations. Now, after long and heated debate both in and
outside the Dutch parliament, a fresh principle of administrative policy
was proclaimed: that of moral responsibility.
In September 1901, Abraham Kuyper's newly-formed confessional
Ministry made the following pledge:
'As a Christian State, Holland is obliged to suffuse its entire
policy with a conviction of moral responsibility to the peoples of
these territories, and in particular to improve the legal position
of native Christians and to give more tangible support to the
Christian Missions.'
Formulated as a Christian obligation this course of action would later
be broadened as part of the 'ethical policy'. lt resulted in emancipatory
measures, decentralization and incipient democratization of colonial
government, though not without engendering opposition from within
and without the political arena, and always in the face of a rapidly
growing nationalist movement.
In the complex 'Indonesian' society of that time, with eastern and
western peoples coexisting but sharply divided by differences in civic
XXX Van Vollenhoven on Indonesian Adat Law

status, there were many economic and cultural conflicts which raised
specific problems about the law applicable to each group. Van Vollen-
hoven did not take refuge from this maelstrom in an ivory tower of
scholarship, but threw his personal life and scientific work unre-
servedly into furthering what he saw as a prerequisite of justice: a
respect for and the recognition and where possible the promotion of
the indigenous law of the Indonesians, their adat law.
Moreover, on many occasions, he persuasively pleaded in internatio-
nal circles for respect for the law of the peoples of the colonial terri-
tories - India, the East Indies, Indo-China, the Philippines and Mada-
gascar. An example was his address to the Institut Colonial Internatio-
nal in Paris in 1921 on 'La Politique Coloniale par rapport aux us et
coutumes indigenes', which ended with these words:
"Si, dans le sens de ces conclusions, le devoir m'incombait d'in-
diquer Ia direction du droit futur de !'Empire de l'Inde, des Indes
neerlandaises, de l'Indo-Chine franc;aise, des Philippines ou de
Madagascar, l'etude de Ia coutume m'ayant appris a connaitre sa
valeur et a l'aimer, la täche serait lourde, mais attrayante et
sublime. Quand je connaitrais tous les codes du monde, quand
j'aurais toute sorte de science juridique, - si je n'ai pas ce
respect et cet amour de la coutume orientale, je ne suis rien"
(I Corinthiens, XIII, 2).1
Van Vollenhoven's dedication to Indonesian adat law- which he saw
as a 'law clan' (1920) 2 extending beyond the law of the Indonesians
of the Dutch East Indies to that of the Malayo-Polynesian peoples of
Formosa, the Philippines, Malacca, Indo-China and Madagascar -
was no accident, as the following quotation from the Encyclopaedia of
the Dutch East Indies shows (VII (1935):1389-90):
'His work for the Indies was not the unintended consequence of a
chance inclination; it was inseparable from his philosophy of Iife and
sustained religious faith. His premise was the societas humana of
Grotius, the unity of the human species ... as proclaimed in the New
Testament ... , with every people having its own value and signifi-
cance, and every human gift and talent the right to develop its own
variety. He never tired of preaching that the oriental colonial peoples
... were entitled to our cordial support in their search for self-expres-
sion; that westemers had an ethical mission to fulfil, a moral responsi-
bility ... , and had no right to impose their own laws, institutions and
ideas. On the contrary, (they) should seek to know and understand the
living genius of oriental peoples, and develop it in co-operation with
Introduction XXXI

them, so that they would become aware of it and responsible for it.
Grotius' ideal of the unity of nations in a world protected by law was
adopted by Van Vollenhoven in his student days, and he never re-
linquished it.'
Thus when the Minister for the Colonies introduced a bill in the
Dutch parliament in 1904 which aimed at unifying the law for all
inhabitants of Indonesia (lndonesians, Europeans and 'foreign orien-
tals') on the basis of the codified law of Holland, Van Vollenhoven
began the battle for the proper recognition of adat law, wich he was to
wage until his death in 1933.

Van Vollenhoven was born the youngest of four children on 8 May

1874 in Dordrecht, a town famous for the first meeting of the States-
General in Holland in 1572. His father was president of the local
District Court. His mother died before he was four, and he lost his
taciturn father seven years later. The housekeeper tried to provide
motherly care as best she could, and in his high school principal,
S. J. Warren, he found a revered mentor.3
Perhaps the illustrious history of Dordrecht, for centuries the fore-
most Dutch town, first inspired in the young Van Vollenhoven his
patriotism and interest in questions of right and might, and later
stimulated him to think about the colonial and international role of the
Netherlands.
In 1891 he began his studies at Leiden in law and orientallanguages.
lt was a period of intense revival of Dutch literature. lnspired by
English, French and Greek romantic poetry the so-called Tachtigers 1
made beauty the focus of art and life. Van Vollenhoven came under
their influence: the melancholy poetess Helene Swarth, the word-artist
Lodewijk van Deyssel, the grand-seigneurial novelist Louis Couperos
and the social pioneer Henriette van der Schalk. These literary in-
fluences must have contributed to the clear and pure language of his
works, and to their characteristically literary form, which sometimes
strikes us as stately or old-fashioned.
Among the many people who greatly influenced Van Vollenhoven's
thinking, the three who, according to his biographer Henriette de
Beaufort, were the most important were the odentalist Ernest Renan
(1832-1892), with his studies on early Christianity and his arguments
about a future in which religion must give way to science; the philo-
sopher J. P. N. Land (1834-1897), who opened his eyes to the unity in
the diversity of sciences and, in particular, in juridical thinking; 5 and
XXXII Van Vollenhoven on Indonesian Adat Law

Christiaan Snouck Hurgronje (1857-1936), the expert on Islam and

Aceh, and sometime govemment Adviser on Islamic affairs, who had
much contact with Van Vollenhoven and influenced him especially on
the subject of colonial policy.
On 13 May 1898 Van Vollenhoven obtained two doctorates: at
3 p.m. in political science; at 4 p.m. in jurisprudence.
After leaving the university, Van Vollenhoven first became private
secretary to J. Th. Cremer, the former tobacco planter tumed politician,
and then a civil servant in the legal division of the Colorrial Office.
At the age of twenty-seven, (already deeply impressed by the article
'Een Eereschuld', by C. Th. van Deventer, in the influential De Gids
(1899) on the subject of Holland's 'debt of honour' to the Indies) he
was called to his chair at Leiden. His inaugural lecture (1901) on
'Exact Jurisprudence' 6 urged the need for a unified knowledge of
positive law and the will gradually to achieve a synthesis ultimately
leading to a world community.

Van Vollenhoven's academic career might be divided into two periods

according to the work he pursued.7
During the first period, from 1901 tot 1918, he completed the first
part of his great treatise on Indonesian adat law, Het Adatrecht van
Nederlandsch-lndie, a vast effort which went hand in hand with his
political struggle for the recognition of this law, which he presented as
a well-ordered, coherent and self-generating whole.
The second period, from 1918 until his untimely death in 1933, saw
his political success, and a deepening and widerring of the study of
adat law the results of which were set out in the second part of his
Adatrecht (1931) and covered the adat law of 'foreign orientals' (Chi-
nese, Arabs, Indians) in Indonesia, the religious elements of adat law,
its maintenance, and its place in the legal system of the Dutch East
Indies, past and present.
In 1933, on the initiative of some of his former students, a collection
of his many papers on adat law and allied subjects was published as
the complementary third volume of his Adatrecht. This volume ex-
cluded, however, the four Ionger studies: Miskenningen van het Adat-
recht (Misconceptions of Adat Law) (1909), Een Adatwetboekje voor
heel Indie (A Specimen Code of Indonesian Adat Law) (1910), De
Indonesier en zijn Grond (The Indonesian and his Land) (1919), and
De Ontdekking van het Adatrecht (The Discovery of Adat Law)
(1928).
Introduction XXXIII

He visited Indonesia only twice: in 1907, when he became convinced

of the importance of the indigenous system of justice for the preserva-
tion and growth of adat law; and in 1932, shortly before his death.

The impression which Van Deventer made on Van Vollenhoven has

already been mentioned. Born in Dordrecht, like Van Vollenhoven,
Van Deventer obtained his Leiden doctorate with a thesis on the
constitutional status of the Dutch colonies. Then he went to the East
Indies, where he entered the government judicial service before setting
up practice as a barrister at Semarang. He returned to Holland
in 1897, where his De Gids article of 1899 made him a public
figure.
His Indonesian evidence enabled him to expose more clearly than
ever before - in Opposition to unduly favourable reports on the
colony - how morally indefensible the policy of the so-called batige
saldi (net profits) really was. Although confirming what others had
already said, Van Deventer's words struck home, because of his careful
calculation that Holland had unjustly extracted a profit of 187 million
guilders (excluding interest) from the Indies between 1867 and 1877.
He cogently argued that restitution in social welfare had to be made if
the Indies were tobe saved from economic and social disaster.
He was the co-author of an equally revealing study on the economic
situation of the people in Java and Madura, commissioned by the
Minister for the Colonies and published in 1904. He became a
Member of the Dutch Parliament, serving first in the Lower and then
in the Upper Chamber. He revisited Indonesia, writing several more
articles stressing the need for a policy in which not material gain but
the welfare of the people should be paramount. Thus he initiated what
became known as the 'ethical policy'. He died in 1915.
In a tribute written in 1926,8 Van Vollenhoven admired Van
Deventer's 'honest, warm and courageaus search for beauty, his love
of action and, much more important, his love of people and faith in
mankind'. But this did not prevent him disagreeing with what Van
Deventer 'advocated or initiated as the most enlightened form of states-
manship' in the field of adat law policy: that it should be largely
unified and westernized.
The East Indies Company had left the autochthonaus law of the
Indonesians largely untouched, but by the end of the 19th century the
idea was coming to the fore that Dutch civilizing influence must Iead
to westernization of the law. In 1904, Idenburg, the Minister for the
XXXIV Van Vollenhoven on lndonesian Adat Law

Colonies, introduced a bill which would make it possible to codify the

substantive private law for all population groups in Indonesia on the
basis of the Dutch Civil Code, though allowing for exceptions such as
family and inheritance law for Moslems and some aspects of agrarian
law.
Van Deventer supported this bill in his De Gids article of 1905 9
on 'Law reform in the Indies', in which he quoted Macaulay: 'Uni-
formity when you can have it; diversity when you must have it, but in
all cases certainty'. Although the 'intrinsic nature of things' might
necessitate legal diversity, such diversity was in his opinion not
desirable.
In the same year Van Vollenhoven published in De XXste Eeuw a
sharp criticism of the bill, under the title 'No Lawyers' Law for the
Indonesian'.lO He characterized the goverment's aim- 'a generallaw
for all'; a 'standard law, as far as possible in accord with the existing
laws of Holland' - as 'lawyers' law', as Roman Law had been in
relation to early Dutch law; a dominating European law under which
all that was still indigenous law or a separate law of foreign orientals
would be submerged. In a detailed argument he showed that the
'kaleidoscopic' Indonesian legal situation did not lend itself to such
objectives. The Idenburg bill, considerably modified in favour of
indigenous law through an amendment by Van Idsinga, was gazetted in
1906 but never put into operation. The struggle for adat law continued.
In 1909 Van Vollenhoven published bis 'Misconceptions of Adat
Law'. Under the biblical text, 'But mine own vineyard have I not kept',*
he discussed the 'indigenous municipalities', their rights over virgin
and cultivated land, the nature and systems of adat law, and the
disputed adat law of Java. The essence of these misconceptions was
that the courts assumed the non-existence of adat law where it did in
fact exist, and used distinctions from westem (Roman) law which were
absent from adat law.
Again in 1919 he reacted sharply with 'The Indonesian and his
land' to Pleyte's bill which aimed at introducing a western-style owner-
ship to Indonesian land holdings. This fierce little publication con-
tained a penetrating analysis of traditional land rights the nature of
which had been the subject of considerable controversy. The heart of
this controversy was whether, and how far, the village right of avail **

* Cf. Song of Solomon 1:6 (King James Version).

** For 'right of avail', see p. 278, Chapter IV, note 2.
Introduction XXXV

extended to virgin land, a crucial issue in view of the possible granting

of long-term leases for European plantations.
Pleyte's bill was withdrawn, but in 1919 a new amendment of
section 75 of the Indies Constitution of 1854 came into force. It
provided that westem law would apply to Europeans; that parts of
westem law might be applied to Indonesians who otherwise, however,
would remain subject to adat law 'insofar as it is not in conflict with
generally recognized principles of fairness and justice'; and that indivi-
dual Indonesians could submit voluntarily to the law for Europeans.
But the idea of unification was not abandoned. In 1923, Cowan's
draft bill for a unified civil code for the Dutch East Indies was
published in Batavia. Van Vollenhoven reacted with a polemical article
on 'Ready-made Law' (1925).11 His scathing attack on the ludicrously
complicated form of the bill ended with the peroration:
'The plan has no connexion with any tried and tested system of
govemment in the Indies; it fits into no acceptable or accepted
framework. It derives from that barren age of dogmatic juristic
intellectualism, when the only known dogmatic system was the
Byzantine-Napoleonic, when rules had tobe formulated for every
contingency, and when it was seriously believed that a couple of
gentlernen - one in Batavia and one in The Hague - could
fabricate a living law merely by publishing something in the
Government Gazette and telling the courts to apply it.'
In this connexion it will be useful to refer briefly to three other works
by Van Vollenhoven. In 1922, tagether with some colleagues, he put
forward a 'Specimen Constitution for the Dutch East Indies'. This had
been commissioned by the govemment, but it was put aside by De
Graaff, who had become Minister for the Colonies, because it went too
far in granting colonial autonomy, and in aiming at the least possible
government interference with adat law.
A posthumaus volume on colonial constitutional law, Staatsrecht
Overzee (1934), makes evident how aware Van Vollenhoven - who
mainly worked from a study in Leiden - was of the intricacies and
difficulties resulting from the confrontation of western and eastern
legal conceptions of government, law and order, and justice.
In 1910, his specimen 'Adat Law Code' summarized in about a
hundred articles the main rules and methods of adat law as it then
operated. It did not pretend to formulate a synthesis of the great
variety of adat law in the archipelago; it merely attempted to provide
a useful basis for further study, especially for European-trained lawyers
XXXVI Van Vollenhoven on Indonesian Adat Law

who had to deal with adat law. Too little use has been made of it.
The little book on the 'Discovery of Adat Law' ( 1928) is a masterly
historical essay on the growing knowledge of adat law and the prin-
cipal workers in this field - except his own person.
On the last page of his 'Misconceptions' (1909) we find Van Vollen-
hoven's credo: 'Our objective is not to know adat law for the sake of
juridical science, stillless to impede Indonesia's development by fondly
preserving adat-curiosa; our aim is to create, not on paper but in
reality, good govemment and a good administration of justice, both
of which are unthinkable without a thorough knowledge of indigenous
law and indigenous conceptions.'

What influence did this eminent scholar and those inspired by him
exert on Indonesian legal development in the last forty years of Dutch
rule? The question has a bearing on lndonesia's policy as an indepen-
dent state.
Van Vollenhoven hirnself saw the usefulness of piecemeal legislation
conceming Indonesian private law,12 and perhaps even - as appears
from his specimen 'Adat Law Code' - of a very general codification.
Yet the incorporation of adat law as an essential element in the wider
and more complex legal order of an Indonesian constitution ran
aground in the controversy over whether it should be assimilated to the
westem legal framework or be differentiated according to ethnic
group. Only casual attention was given to a realistic appraisal of a
possible synthesis of the two.
In the final pages of his Adatrecht (vol. 11:878ff.) Van Vollenhoven
argued that in the last resort neither Ministries and Departments in
Holland and Indonesia, nor legal practitioners and scholars, but the
Indonesian people in the villages held the fate of adat law in their
hands. For some, this formulation begs the question. If the outside
world impinges on village life - and this process was already weil
under way even in Van Vollenhoven's time - traditional adat law
gives the people insufficient protection against exploitation. Indeed, as
Van Vollenhoven said, the future of adat law depended upon its
utilitarian value, its capacity for development and the resistance it
could offer. So the question becomes: useful for what, development
towards what, resistance to what?
It is a pity that I. A. Nederburgh's study, 'Chapters on Adat Law'
(1933),1 3 was published after Van Vollenhoven's death, for this was
the first dispassionate discussion of the important question of whether
Introduction XXXVII

the course of development in the Indies did not impose a duty to

refrain from artificially protecting Indonesian adat law. Nederburgh
said (p. 126) with justification that the era of closed communities
leading their own lives was almost everywhere a thing of the past, and
that, though it was good to appreciate adat law, a balance needed to
be struck.
Nederburgh had expressed the same idea much earlier in an article
(1905) on an optional national law for Indonesia, an 'intermediate
law' applicable to particular population groups (e.g., the Indonesian
Christians and the Chinese) and in inter-cultural situations, a law to
which others could voluntarily submit. Van Vollenhoven's response 1 4
was unenthusiastic: the plan offered no solution for the great majority
of Indonesians, and it would first require thorough research into the
existing adat law.
In the later study, however, Nederburgh started from the premise
that western law was of a higher scientific and practical value than
adat law (p. 88), and that in the nature of things adat law was bound
gradually to be replaced largely by western regulations. He pointed out
that Van Vollenhoven (Adatrecht 1:39) had originally said the same
thing, but that the 'highly esteemed author', by his Iove of adat law,
often lost sight of his own pronouncements and took the real or
imagined disparagement of adat law far too seriously (p. 89).
Van Vollenhoven's influential pupil Ter Haar replied (1933) to
Nederburgh, completely rejecting his arguments: the book made a use-
ful contribution neither to the literature of adat law nor to that of
constitutional law; the interpretation of statute law was destructive
and confusing; and the basic premises of the argument had not been
clearly expounded.
Yet Nederburgh was pointing to developments which have become
realities today.
This was a dialogue between people who are no Ionger alive. Their
polemies seem now to have been too strongly governed by an
exaggerated sense of Opposition between two views: one that western
law was 'higher' than adat law; the other blindly defending adat law.
Surely this tended to obscure the real problern of the development of
law. Without its social context, law would be a meaningless fabric of
rules and commands. lts value can only be tested by relating it directly
to the needs of a particular society, that is in relation to all factors
which determine the choice of priorities in it.
Adat law was probably of the highest value for the small closed
XXXVIII Van Vollenhoven on Indonesian Adat Law

Indonesian communities which still existed in Van Vollenhoven's time,

but it became less appropriate as the structure of these communities
was undermined by new developments which destroyed their economic
self-sufficiency. With the change of priorities a new orderwas needed.
Legislative measures aimed at fastering a stronger organization or
greater economic viability met with much opposition from Van Vollen-
hoven's side whenever they took too little account of adat.
Thus the Native Municipalities Ordinance for Java and Madura
1906, which aimed at clearly delineating internal government and the
control of village finances, was regarded by Van Vollenhoven as too
little based on the original desa institutions. 15 Reclamation ordinances
aimed at preventing a deforestation dangeraus to agriculture he con-
sidered to be insufficiently consonant with the community right of
avaiJ. 1 6 Finally the 1908 Ordinance on credit facilities, which provided
for the encumbrance of land in cases of debt, thus avoiding the often
onerous consequences of the adat way of handing over land in return
for a loan, Van Vollenhoven thought to be a negation of everything
adat law stood for (Adatrecht 1:634). Nevertheless these and other
measures, however poorly thought out and imperfect from an adat law
point of view, did have many favourable effects. The mortgage credit
facilities of the General Agrarian Bank, for example, saved many
people from hopeless indebtedness.
Practice, moreover, teaches that there may be a fairly quick absorp-
tion of and readjustment to new law at the lower levels, and often a
remarkable synthesis between old and new.
The reproaches against Nederburgh's prejudice in favour of western
law were probably not unfounded. But his early proposal for the
creation of an intermediate 'Indonesian national law' did not warrant
Van Vollenhoven's initial dismissal of it as a mere 'embellishment' of
the Government Gazette. Indeed, he was later (Adatrecht 11:860) to
call the proposals 'fresh and sound'.
No one knowing Van Vollenhoven's work would say that he had no
understanding of the development that adat law would have to go
through to contribute adequately to the Indonesian legal order, or that
he had no appreciation of the fact that the closed society of small tribal
villages or of diminutive self-governing states was vulnerable to
relentless commercial influences from without. Yet it seems likely that
he underestimated their rapid progress and overrated the powers of
resistance of adat law.
Today, Indonesia is not only open to all sorts of outside powers and
Introduction XXXIX

influences, but it is struggling with the problern of resisting and Con-

trolling foreign exploitation of its primary resources. Adat law has no
institutions which could enable it to operate effectively outside the
sphere of the local communities, or to prevent the abuse of foreign
concessions.
Might not a less dogmatic adherence to adat law and legal pluralism
and the timely creation of some transitional law by the colonial
authorities have been of greater service to the country and its people?
After Indonesia's independence, Soepomo, Ter Haar's close associate
and his successor to the chair of adat law at Jakarta University, stressed
the necessity for a new approach to adat law (Soepomo, 1947).
Indonesian legal scholars are now for instance bent over the task of
producing a new law of contract to meet the needs of those who no
Ionger operate on the village level. lt will be influenced by principles
of the former statute law for Europeans, but equally so by postulates
borrowed from adat law. Act. No. 1 of 1974 establishes new marriage
provisions, which seem to involve a considerable emancipation of
women, in conformity with the ideas of a new era. Similarly it was
only after Indonesia became independent that attention was paid to
the creation of a modern labour law.
On the other hand, as far as land was concemed, it was undoubtedly
wise of the Dutch legislature to preserve adat law in 1870, and to make
explicit the inviolability of land belanging to the villages.17 Although
the right of avail of the village over the uncultivated land within its
jurisdiction - a right which is in principle inalienable - was not
always fully respected with long-term leases or concessions for Euro-
pean plantations, this does not diminish the fact that this colonial
legislation spared Indonesians the disastraus dispossession experienced
by small farmers in Burma as the results of their indebtedness to
Indiansand Chinese (Fumivall, 1948:91ff., 224ff.).

Political controversy
Though Van Vollenhoven was regarded as a protagonist of the 'ethical
policy' of colonial reform, it is difficult to determine where he stood in
relation to the already powerful Indonesian nationalist movement. He
did not contribute to the moderately progressive joumal De Stuw,
started by H. J. van Mook in 1930. His biegrapher quotes the following
passages from a private letter, written in 1922: 'I have thought deeply
about the dilemma. I remain of the opinion that we shall never achieve
a good policy in Indonesia if we do not make this natural nationalistic
XL Van Vollenhoven on Indonesian Adat Law

feeling of the Indonesians the centre of our attention. As I see it, the
Philippines and British India teach the same lesson. Whether this will
result in "independence" with strong cultural bonds between Indonesia
and Holland, or in a self-goveming dominion, is to my mind an
irrelevant question, for by the time we have come that far the world
and the League of Nations will be very different from what they are
now' (Oe Beaufort, 1954:143).
That Van Vollenhoven envisaged a great degree of self-govemment
and autonomy for Indonesia is evident from his biography and from
his constitutional studies ( 1934), but it seems most unlikely that he
ever visualized an Indonesia totally separate from the Netherlands.
One writer called the 'ethically minded' tragic because of their
isolation. An equal tragedy is that they never succeeded in translating
their main political aim, the emancipation of Indonesians, into terms
with which the nationalist movement could identify itself. Wertheim
(1964:213-224) and others has ascribed this to the mild patemalism
which fostered the inertia of the masses, and to the absence of a
fundamental reform of village structure and native land use (that is,
contrary to Van Vollenhoven's policy) in order to absorb the increasing
population. They believed this resulted in a lack of momentum, in a
stagnant situation of 'shared poverty'.
lt is a moot point whether more concrete results would have provided
stronger arguments with which to defend the ethical policy and would
have spared Van Vollenhoven the conservative attacks which were
mounted against him and his University in the so-called Leiden-Utrecht
controversy of the years 1924-32.
In 1925, as the results of contributions from business interests,
politicians and intellectuals, a second Indological faculty was estab-
lished at Utrecht University for the training of prospective colonial
civil servants. According to its sponsors the Utrecht faculty was needed
because of the 'inadequacy' of the Leiden training. In the words of
Professor De Louter, the Leiden ideas about colonial affairs were out
of step with the realities of the situation, the views of the govemment
and the interests of the State. Leiden was accused of a priori and anti-
historical methods, of overrating the value of adat and adat law, of
wanting to reduce Dutch colonial authority, of opposing govemment
measures, and so on; in short, of being against the existing legal order
and the manner in which the Dutch authorities were carrying out their
task.lS Van Vollenhoven's anonymous editorials in the influential
newspaper De Nieuwe Rotterdamsche Courant on autonomy for the
Introduction XLI

Indies, in which he likened the Indonesian desire for freedom to that

of the Dutch people in 1572, only increased the opposition.
M. W. F. Treub, a politician and later chairman of the Industrial
Council for the Dutch Bast Indies, became the most outspoken
opponent of the Leiden teaching with the publication of a number of
highly critical articles. The reply from Leiden, drafted by Van Vollen-
hoven and signed by seven professors, appeared in De Gids in 1925.
Entitled 'The Attack on Leiden', it bore the motto: 'Thou shalt not
bear false witness against thy neighbour'. From this began a fierce pen
battle, which Iasted for years, but Van Vollenhoven's biographer doubts
whether the 'bellicose' tone of his replies persuaded any of the opposi-
tion (De Beaufort, 1954: 154). He became dispirited by the attacks,
which he interpreted as questioning the patriotic spirit of his University
and his own integrity. As a conscientious thinker and academic he wel-
comed a spirited scholarly debate; but he was no political fire-eater,
and the fierce controversy between sister universities took toll of his
health and spirits.

li. Views on Law and Methodology

Van Vollenhoven's inaugural lecture inclines one to believe that his
views on law were based on 19th century legal positivism, modified
first by a belief that the content of law was determined partly by
ethical and political postulates, and secondly by the conviction that the
logical and systematic formulation of norms should be supplemented
by inquiry into social facts to discover rules of law.
Van Vollenhoven's approach to the study of adat law has been
defined as follows: 'At first his scientific interest in this material was
of an ethnographic nature; the "Ethnologische Jurisprudenz", too, was
ethnologically and historically rather than juridically oriented. From
the vast jumble of social phenomena, Van Vollenhoven abstracted the
legal institutions without violating their ethnological context. He dis-
covered the principal features of a common Indonesian "law region"
[p. 41, below], the enduring framework of legal rules and institutions
in all their diversity according to time and place.' 1 9
But Van Vollenhoven's views do not appear to have remained
unchanged, and we should trace their development during his
career.
In his inaugural lecture (190 1), holding the view that jurisprudence
is an exact, empirical science, and accepting the diversity of human
XLII Van Vollenhoven on Indonesian Adat Law

law, he defines what he understands by law. 'We speak of law only

when a rule of conduct is sustained not merely by consideration of
advantage or disadvantage, praise or blame, but by coercion as a guide
to precept and prohibition. Hence, in the absence of an authority
willing and able to enforce rules of conduct, law is absent; if authority
sleeps, law lies idle; rules of conduct not yet, or no langer, stamped as
law by authority have meaning only as future or past law. The diversity
in human law can be ascribed first to the diversity of these countless
communities which, because they are based on law (-), should be
called jural communities; secondly, to the rich variety of their legal
products; and finally, to the greater or lesser strength with which these
jural communities succeeded in sustaining the constituent parts of the
law they have created.'
The concept of jural communities continues to dominate his metho-
dology. Carefully characterized in the first volume of his Adatrecht
(Chapter IV, below), it refers mainly to the small autonomaus commu-
nities of all kinds - kinship or territorially based communities,
voluntary associations for various purposes - but also to smaller or
!arger principalities.
Coercion and the authority of jural communities are thus the pillars
on which the order of law, including adat law, depends.
Later in his inaugural lecture he remarked (p. 27) that the function
of legal science ends with systematic, historical and comparative inquiry
into the constitutions, practice and regularities of the law. In his
a-philosophical view, courts and legislatures were expected to make
the idea of law a reality and to satisfy a sense of justice, but iurispru-
dence should be concerned only with law as it operated 'at ground
Ievel' (pp. 29-30).
But five years later, when the first instalment of his Adatrecht ap-
peared (p. Hf., below), he seems to have modified his earlier opinion
that coercion and authority are the pillars of law. He points to the
profound difference between the law of Holland and Indonesian adat
law: the one a 'fairly comprehensive and coherent whole' formulated
in codified laws and regulations, outwardly sharply 'distinct from rules
of morality, conduct and aesthetics'; the other 'different', with written
law for only a minority of legal situations and relationships, and the
greater part an uncodified mass, in which broad guidelines are certainly
discernable, but different according to population group, and with
legal changes more often brought about by free and unconscious
growth than by deliberate decision.
lntroduction XLIII

'Viewed through the eyes of a codist the legal inventory of the Indies
presents a jumble, an incomplete, inadequate and untidy whole; but
when explored by one whose desire for knowledge and explanation of
the living law on earth is inspired by the very diversity of its past and
present manifestations, this same inventory becomes an inexhaustible
source of instruction' (pp. 1-2, below).
This law of Malayo-Polynesian origin has been exposed to a succes-
sion of foreign influences: Hindu, Islamic, Chinese, European (Portu-
guese, English, Dutch); yet autochthonaus institutions have remained
the most important part of the legal composite. Accordingly, 'the
oriental legal institutions have to be considered in a common frame
together with the western law. On the other hand, it is obviously
impossible to divorce these legal institutions from the non-legal ele-
ments of popular customs and beliefs' (p. 3, below).
There being no general Indonesian term for this oriental legal
system, Van Vollenhoven gave careful thought to the most suitable
term. Arguing against the adoption of 'customary law' and other defini-
tions he finally decided on a compound based on adat, the widely
known Arabic word for 'custom'. Hence, for 'adat with legal conse-
quences', adat law would be appropriate, as the term did not imply a
rigid division between matters of law and other adat.
What did Van Vollenhoven understand by legal consequences? He
observes that it is often doubtful whether we are dealing with 'legal'
or with other usages, for instance, as regards reciprocal contributions
to wedding feasts or the ritual evasion of marriage prohibitions. But
even though some rules would not be regarded as 'law' by westem
opinion, 'if they carry an enforceable sanction, how could this name be
denied to them?' (p. 6, below).
As we read it, enforceable sanction here means human punishment,
or ·the human power to make something pantang, forbidden. Yet he
recognizes that difficulty and confusion arise when certain conduct is
prohibited as likely to provoke the wrath of the gods or spirits
(pantang, rebu, pemali), but its violation is punished by humans
as weil.
Twenty years later, when writing on the 'Maintenance of Adat Law'
(Chapter VIII, below), Van Vollenhoven's understanding had deepened,
not least by the flood of fresh materials from workers in the field. His
concept of adat law is now placed on a much broader basis. His earlier
distinction between adat and adat law, that is the use of human coer-
cive sanctions, is less important. In general, he argues, people comply
XLIV Van Vollenhoven on Indonesian Adat Law

with adat law not because of the threat of judicial force, but because
compliance has become a habit, because they fear their ancestors,
because violation would not serve their interests, and finally because
of the force of oral tradition (below, pp. 215 ff.).
Moreover, there is the Indonesian 'practice of headmen and others
of giving guidance in the observance of the adat, of taking it under
their care and supervision, without there being any question as yet of
the resolution of disputes or of action to enforce the law'. In his
'attested law observance' (pp. 222 ff., below), instead of the sanction of
force, there is peaceful consultation and patient mediation, in which
religion, myth and tradition all play an important part.
Also the action of Indonesian adat-judges, when they do adjudicate
in dispute, is characterized by attempted mediation, accommodation
and reconciliation of conflicting individual and communal interests.
Attested observance of the law by headmen and other socially pro-
minent figures, and the accommodating character of indigenous justice
- 'a hundred times more effective than adjudication by the com-
manding voice of authority' - are natural because these notables are
seen as part of the cosmic order of society. They act and speak as those
whose duty it is to 'see that the wishes of the ancestors are observed
and to act as their earthly representatives' (p. 227, below). Accordingly
the adat judges are neither bound to accept as true that which is not in
dispute, nor to accept as law what the litigants assert to be such. They
have an independent contribution to make in finding the facts and law
of the case (below, pp. 253-4).
When the vast majority of a country's inhabitants has for centuries
adhered to one or other of the great religions, elements derived from
thesewill be adopted into the indigenous legal system. But Van Vollen-
hoven showed convincingly that, so far as religious influences were
concemed, it was the belief in watchful ancestral spirits, and other
so-called pagan features of Malayo-Polynesian origin, that still pre-
dominated in most of Indonesian adat law and indigenous judicial
practice. In Chapter II below, some of his most spirited pages are
devoted to refuting the premise that 'law follows religion, that the
pagan Indonesian therefore has pagan law, the Hindu Hindu law, the
Moslem Moslem law, the Christian Christian law - a supposition
which ... is emphatically contradicted by the facts' (below, p. 8).
Nevertheless, he found this aspect important enough to retum to some
twenty years later, when in the second volume of his Adatrecht he
devoted a hundred pages or so (not reproduced in the present edition)
Introduction XLV

to a meticulous examination of pagan, Hindu, Moslem and Christian

features in adat law.
By 1918 Van Vollenhoven had completed a systematic description
of Indonesian adat law in nineteen 'law areas' (rechtskringen). Some
of these he distinguished as self-evident, but others more hesitantly.
In distinguishing law areas (Chapter IV, below) he relied less on the
differences between 'specific legal rules', than on 'the different struc-
tures of jural communities'.
Indeed, Van Vollenhoven's work is marked from the outset by the
conviction that law can only be known through examination of the
jural communities in which it applies. Hence he objected strongly to
restricting or restructuring the indigenous jural communities.
The critical significance of the internal configuration of these com-
munities for the nature and 'cut' of adat law can be gauged from his
descriptions of the law areas, for the systematic description of which
he worked out a standard model comprising these rubrics:
1. Jura[ communities (socio-political organization).
2. Individuals (personal status, rights and duties).
3. Government, justice, legislation (constitutionallaw).
4. /nter-locallaw (the law between villages).20
5. The law of kinship.
6. Marriage law.
7. The law of inheritance.
8. Land law.
9. Law of chattels (obligations, rights to movables).
10. The law of wrongs (without division between civil and criminal
wrongs).
11. Legal remedies (procedures, sanctions).
It can be seen from this that Van Vollenhoven largely departed from
the usual methodology of continental European law. He believed that
the use of Roman law constructs could only Iead to a misunderstanding
of differently conceptualized legal categories. Not only did he succeed
as nobody before him in sympathetically understanding the concepts
and properdes of Indonesian law, but he often sharply attacked the
common misconceptions of it. In the words of Van Ossenbruggen:
'Van Vollenhoven immediately saw that the way in which orien-
tals draw distinctions and classify is vastly different from that of
occidentals. The oriental ... makes sensory perception the basis
of his legal categories and distinctions ... ; abstract juridical
contructions are foreign to him. For example, our distinction
XLVI Van Vollenhoven on Indonesian Adat Law

between rights in personam and rights in rem is incomprehensible

to him, whereas to divide legal transactions in land and water
from those in all other goods seems natural' (1933:XII).
In Van Vollenhoven's methodology the clarification of Indonesian legal
conceptions had to serve the ends of justice in colonial judicial practice.
In the very different Indonesian conceptual world, government courts
- especially in the earlier days - often failed to give judgments com-
prehensible and acceptable to the people. An important part of Van
Vollenhoven's work therefore consisted of exposing fallacious or
erroneous premises used by government courts - especially the land-
raad courts - which dispensed justice 'in the King's name'. A few
examples may suffice.
Land could not be 'pledged', because in terms of section 1150 of the
Indies Civil Code this was possible only in respect of movables. Yet a
common transaction in adat law involves the redeemable transfer (jual
gadai) of a person's land in return for a loan of money. (For the termi-
nological problem, see footnote p. 102, below.)
The courts regularly employed the distinction between jura in rem
and jura in personam, which has no equivalent in adat law.
Totally foreign to Indonesian conceptions of justice was the 'dis-
missal' of actions on account of a litigant's Iack of capacity, a court's
Iack of jurisdiction, or the failure to start proceedings within a
prescribed time.
A misconception which particularly attracted Van Vollenhoven's
attention concerned the highly sensitive area of indigenous land rights,
the 'highest' of which he called beschikkingsrecht ('right of avail' -
see p. 278, Chapter IV, note 2). Being indissolubly bound up with the
key-concept of 'jural community', he gave it priority in his description
of each law area. He understood this right to be religiously rooted and
to reflect the fundamental connexion of a human group to the deities
and spirits of the land it inhabits. The earliest (and fullest) summary
of the nature and content of the right appears not in his Adatrecht, but
in one of his lectures on 'Misconceptions of Adat Law' (1909) given at
the Academy of Netherlands-Indies Civil Officers. It is worth repro-
ducing here, for it is of value even today when third-world govern-
ments face problems of agrarian reform.
'The right of avail ... applies when an indigenous jural com-
munity, whether territorial (native municipality, self-goveming
chiefdom) or genealogical (family, lineage, clan), claims to have
within a certain area the exclusive right to avail itself of the
Introduction XLVII

land. In general, the manifestations of this right are six:

first, the community and its members may freely exploit any
virgin land within this area (e.g. clearing it for agriculture,
founding a village, gathering forest produce); secondly, outsiders
may do these things only with the community's permission, and
commit an offence (maling utan) without this; thirdly, outsiders,
and sometimes even members, must pay some compensation
(sewa bumi, etc.) or tribute (ulu taon) for such exploitation;
fourthly, the community retains to a greater or lesser extent some
control over cultivated Iands within this area; fifthly, it is
held liable for unaccountable delicts within the area (e.g. when
the perpetrators remain undetected); sixthly - and this is not
the least remarkable feature of the right of avail - it cannot be
permanently alienated' (Van Vollenhoven, 1909: 19-20). 21
Van Vollenhoven reproached the colonial government for being 'un-
certain', 'inconsistent', and 'unjust' in its attitude towards this right,
which was sometimes fully respected, sometimes partially recognized,
and sometimes totally ignored (e.g. with the granting of long-term
leases or concessions to European agrarian enterprises). The issue was
(and is) juridically difficult and politically delicate.
The agrarian law of 1870 guaranteed full protection of the rights of
the indigenous people to allland 'cleared by them for their own use or
as common pasture, or for any other reason', but the crucial question
was whether this covered the so-called 'virgin Iands', which were
not in regular use but from which the villagers derived occasional
benefit.
The prevailing opinion in government circles was that a community's
right of avail to virgin land was no more than a rather loose claim,
perhaps involving some form of administrative control, and that the
land belonged to the 'free domain of the State', which accordingly
could be leased to European enterprises for agrarian or other profitable
purposes. Van Vollenhoven rejected this interpretation as the view of
'statute book lawyers ignorant of and unwilling to know any system
other than Justinian's and the Napoleonic-Dutch'.
The issue stirred public opinion for many years, but by the first
quarter of the 20th century the granting of leases had been drastically
curtailed.
More recently, however, the Indonesian government, in the basic
Agrarian Law 1960 (section 3), adopted the principle that the adat
communities' right of avail, so far as it still existed, might only be
XLVIII Van Vollenhoven on Indonesian Adat Law

exercised in ways compatible with the national interest and with

enacted laws and regulations.

Though the struggle for adat law was largely successful, in that its
existence could no Ionger be denied and the courts gave it serious
attention, yet the dividing line between adat as custom and adat law
continued to pose a problem. On what grounds could one determine its
binding character? How could innovations in adat law qualify as
customary law if the Roman criterion of inveterata consuetudo were to
be applied? How could one ascribe to adat law a body of objective and
pre-existing rules if the conciliatory nature of adat justice made it
constantly necessary for adat judges to 'find' or 'create' the law applic·
able in individual cases? Since only a very small and unknown
minority of adat disputes were settled in a court of law, how often, and
when, could one be certain of dealing with judicially sanctioned rules?
In his chapter on the maintenance of adat law (VIII, below) Van
Vollenhoven addressed hirnself to these questions.
'The people of the village who voluntarily observe the ancestral
adat law, the adat heads who attest its observance, and the courts
which dispense justice in the spirit of adat law, they all see ...
how adat law grows under their own hands' (below, p. 256).
And he remonstrated:
'If a rule is so deeply ingrained that nobody would dream of
breaking it, with the result that nobody remembers it to have
been judicially affirmed, would it therefore not be adat law? If
[some] rules ... are so weil protected by the authoritative
guidance of headmen and elders - much more important here
than adjudication in the narrow sense - that no judicial action
to obtain their observance can be remembered, would they there-
fore fail to qualify as adat law? Whenever a true adat judge has
before him a case, and nobody remembers a like case to have
been decided, is he to turn the petitioner away on the pretext
that, though a custom may have been violated, there has been no
breach of law? - as though every question of law did not have
to be raised for a first time!' (below, p. 257).
He then reformulated his approach. Adat law was to be found by
'careful enquiry into how, in a given area, matters of consequence for
the legal order are usually clone or tolerated as being normal ... ,
and how, in cases of deviation, fellow villagers or adat heads, or
occasionally the courts, react ... Even approbation and disapproba-
Introduction XLIX

tion, if inextricably associated with precept and prohibition in popular

thinking and conduct, are law and not mere morality ... In cases of
dispute adat judges had to determine the difference between normal
peaceful usage . . . and disruptive deviance which they could not
possibly ignore' (p. 258, below).
After Van Vollenhoven's death, Ter Haar (1937) formulated a more
formally juristic view. Speaking at the 13th anniversary of the Batavia
Law School he stressed that the science of adat private law, like any
other positive jurisprudence, was a science of contemporary positive
law, and not to be classified under legal ethnology, sociology, or
historical or comparative jurisprudence. Not being a written law
'except for the insignificant part of it which is contained in written
village regulations and princely edicts, ... valid adat law is therefore
to be learned only from the decisions made by the authoritative func-
tionaries of the group ... , whether or not in situations of conflict, with
due regard to the coherence and interaction of the structural ties and
values of the community' (1937:4; original italics).
This drew a spirited reply from F. D. Holleman (then holding the
chair of Adat Law at Leiden). Why, he asked, this artificial restriction
of the field of study and of the criterion of adat law? Hitherto it had
been accepted by students of adat law, including Van Vollenhoven,
that law comprised alllegal norms which a scientifically and juridically
reliable enquiry could abstract from the reality of legal commerce in
society. What was this reality? Everyday life with its social intercourse
in every field, in which legal norms were not as a rule separated from
social norms but a particular species of them, recognizable by those
who observed their operation from a juridical point of view. Authori-
tative decisions, however important they undoubtedly were, should not
be overrated. Adat justice on the whole dealt with concrete interests,
and its decisions were nearly always expressed in terms of concrete
issues and not of legal rules - though trained lawyers could formulate
them in legal terms (Holleman, 1938:430ff.).
The opposing views in this debate seemed to be motivated, on one
side, by a desire for the sake of legal certainty to provide adat law with
a formal criterion (the judicial decision, jurisdiction), and, on the
other, by a fear that such a criterion would unduly restriet the meaning
of operative adat law, the essential criterion of which lay in the inter-
action generally between habitual social practice and impermissible
deviance from it (as Van Vollenhoven had indicated).
In a short article on 'The Judge's Task' (1938), Logemann attempted
L Van Vollenhoven on Indonesian Adat Law

to reconcile these views. He believed Holleman's opposition to Ter

Haar to be engendered by fear of the dominating role of government
judges, who would be inclined to dismiss the conciliatory decisions of
indigenous tribunals as of little value for ascertaining operative adat
law. He suggested that, 'If judgments were presented and taken note
of in full, instead of merely as the (concluding dictum) of a detailed
account, the so-called conciliatory adat judgment would be as valuable
a guide to subsequent jurisdiction as any other judgment' (1938:36).
The history of judicial practice teaches that there was some justifica-
tion for Holleman's fear, but Logemann did not answer the principal
question. The crucial point is that 'law' is something other than 'fact',
that 'ought' (sollen) is something other than 'is' (sein), but that none-
theless the two are closely connected. Van Vollenhoven glimpsed the
question early in his Adatrecht (vol. I:71-75) when dealing extensively
with the connexions and the differences between ethnological data and
law, unfortunately without arriving at a clear conclusion.
Because of the dualism of Dutch codified law and indigenous folk
law in the Indies, adat law often threatened to become relegated to the
field of morality or custom. The situation did not change immediately
with independence for Indonesia, but the constitutional basis for the
formal division between the two systems has now been removed and
Indonesia is on the way to a single system of national law, a develop-
ment which faces it with the difficult task of how to accommodate the
traditional law of the people in the new system. Hence a fundamental
study, in the light of present-day circumstances and in a broad context,
of the problems revealed by Van Vollenhoven's scientific approach to
adat law as positive law, would be of great value.

III. The Discovery of Adat Law

Van Vollenhoven has been called the 'discoverer of adat law'.
According to Van Ossenbruggen (1933:1), 'The most important fact is
expressed in one all-embracing word: Van Vollenhoven elevated adat
law to a science. Though much that preceded his work was of value
- I need but mention Snouck Hurgronje, Wilken and Liefrinck - a
science of adat law did not exist before Van Vollenhoven and without
him would probably not yet have been created.'
In his brilliant little study on 'The Discovery of Adat Law' (1928),
Van Vollenhoven hirnself regarded Wilken (1847-1891) as the man
through whose work 'adat law for the first time achieved an indepen-
Introduction LI

dent place in the wide range of ethnographic data. Admittedly, with

Marsden, Raffles and Crawfurd it was presented under the rubric of
'law' or 'government', but in the way in which games, food habits or
modes of dress also appeared under separate headings. Marsden's last
chapter on adat law runs over into native pastimes. With Wilken,
however, adat law is a subject in its own right, though he rightly leaves
its connexion with folk custom and folk religion intact' (1928: 101-2).
Muntinghe (1773-1827), was the first to speak consistently about
adat. One passage of a Memorandum of his to the Commissioners-
General22 of the Netherlands Indies (Batavia, 14/7 /1817) reads: 'The
institutions and customs of the people have remained veiled under the
general term adat'. It was Snouck Hurgronje who later (1893: 16) intro-
duced the term adat law.
Naturally the question arises of what is meant by 'discovery'. For
Van Vollenhoven (1928: 1-2), it meant:
'[A] lthough Indonesian adat law itself had its beginnings in the
mists of time, an awareness of its existence and of its value only
recently dawned upon us westerners. Strange as it may sound,
this adat law indeed had to be discovered, and its discovery has
cost time and effort. At first sight this seems to be a paradox.
Surely we do not 'discover' the vernacular of the land which we
visit. We either do or do not research the language, do or do not
know it; but in any event we hear with our own ears that some
people speak in words and idioms which we do not understand.
Moreover, as soon as we come into regular contact with the
people of a tropical country - with its government, system of
taxation, land tenure, kinship system, inheritance and justice -
we must surely now and again allow ourselves to be informed by
the people themselves how these things are arranged and what
peculiarities they have.'
[Nonetheless, adat law had tobe 'discovered'],
'for virtually all peoples, western or eastern, have been late and
slow in acquiring knowledge of their dialects, of their literature
and even of their history; [and although] already during our
Middle Ages the Indies, in Java at least, had its jurisprudents
(Wilken, 1926:438), apparently they were practitioners only, not
people who could enlighten a stranger about adat law' (1928:3).
Here Van Vollenhoven put his finger on a fact which has indelibly
influenced the fate of adat law, namely that over a period of approxi-
mately three centuries until the 1920s the recording, the analysis, the
LII Van Vollenhoven on Indonesian Adat Law

systematization of adat law and partly also its place in a constitutional

context, has been the work of westem research and scholarship. Jaspan
(1965:252-3) has appropriately described the situation:
'The concept of adat law is rather broad since the term adat has
several connotations including custom, usage, rule, proper beha-
viour and propriety. The concept of hukum adat was almost
certainly a Dutch creation. Before Van Vollenhoven and his
school began codifying what to Western jurists appeared to be
the juridical aspects of native custom, adat law was not a
separate and independent entity but was in most cases inter-
twined with the history, mythology and institutional charters
... of each ethnic or cultural unit ... In traditional Indonesian
societies, both centralised and stateless, there were no professio-
nal jurists and no separate judiciaries. In the centralised states
the sultans or other rulers, in the non-centralised societies the
village headmen and elders, were both the repositories and the
arbiters of what we may now, for convenience, call adat law.
Outside Java - with the exception of the Yogyakarta and Sura-
karta principalities - much of the traditional adat law was
carried over by the Dutch and made an integral part of the
system of government by indirect rule.'
Van Vollenhoven's Discovery names about 450 people who over three
centuries contributed in some way to the knowledge of this folk law,
but Indonesian names are scarcely tobe found. lt was only after 1918,
when he had completed his description of indigenous adat law (Adat-
recht, vol. I), and written the most important of his polemical articles
defending that law in the arena of colonial politics, and when he had
already been lecturing for many years at Leiden, that a nurober of
Indonesians,23 chiefly through his personal influence, began to follow
up his pioneer work.
As against them, four or five times their nurober of Dutch scholars
published works on adat law in Van Vollenhoven's time. 2 4 This tardy
interest in adat law on the part of Indonesian scholars was partly
influenced by the fact that the Batavia Law School devoted (as the
Jakarta Law Faculty still does) by far the greater part of its curriculum
tot 'European' law. Add to this that some of the professional judges
who administered adat law were less than weil versed in it, and we
may have a reason why, in present-day Indonesia, such great difficulties
are engendered by the problern of shaping a nationallaw and of finding
a place in it for adat law.
Introduction LIII

The problern of discovering and accommodating adat law is part of

a checkered colonial history of which a few facets and names should
be mentioned.
The period of Company rule (1602-1790), though affering the best
opportunity for finding genuine folk law, was used scarcely if at all
for this purpose. The Company's legal system was aimed mainly at the
coastal towns and suburbs under its direct control and rarely reached
the rural hinterland. Initially, its law for orientals falling under its
jurisdiction was the revised law of the Dutch Republic, occasionally
modified for non-Christians and Chinese. Typical for this system was
that Indonesians could voluntarily subject themselves to indigenous
law, and it was not until 1824 that a Dutch statute decreed that those
resident in the towns of Batavia, Semarang and Surabaya fell under
govemment native justice and hence under rural adat law. Virtually
the only time the Company became acquainted with indigenous law
was when it intervened in princely justice in feudal territories, where a
capable Company servant like Gobius at Cirebon leamed to distinguish
'original Javanese law ... of before Mohamedan times from the law of
the evil Moslem clergy' (Adatrecht 11:342).
Through her formal neutrality the Company therefore left the indi-
genous administration of justice largely intact (Carpentier Alting,
1926:222!.). Nevertheless, its armed presence, its demands for agrarian
produce, and the sale (from 1705) of tracts of land to private European
enterprise, must have affected adat land law, though it is not possible
to form a clear picture of this (see Fumival, 1944:41, 46f.; Gonggrijp,
1928:28-77).
However little attention the East Indies Company paid to adat law,
it did produce some chroniclers of Indonesian life in the 17th and
early 18th century, including Rijckloff van Goens (Java), Speelman
(the Mataramese principalities), Padt-brugge (Minahasa), Gobius (Cir~­
bon) and Valentijn (Ambon).
But it was the Irishman William Marsden in whom Van Vollen-
hoven recognized 'the pioneer' of adat law studies (1928: 14ff.).
Written even before the final demise of the Company, his History of
Sumatra (1783) deals mainly with the Rejang of Benkulu. The British
interregnum also brought Crawfurd with his (still important) History
of the Indian Archipelaga (1820) and other works based on nine years
of service and enquiry in various parts of the Indies; and Raffles,
Lieutenant-General of Java from 1811 to 1816. Formaterials on Java-
nese adat law Raffles' History of Java (1817) relies too much on texts
LIV Van Vollenhoven on Indonesian Adat Law

from the central Javanese principalities, but his Substance of a Minute

on ... internal management and the establishment of a land rental for
Java (1814) contains much valuable first-band information collected
by a team of able assistants from all over Java (Van Vollenhoven,
1928:27ff.). Yet the latter volume contains an annex- his Minute of
14/6/1813 - in which he states that the ownership of land was
invariably regarded as exclusively vested in the sovereign or state - an
opinion which started the protracted 'domain' controversy.
After the British there followed a thirty-year period of uncertainty,
during which the new Kingdom of the Netherlands made efforts to
replace the regime of the run-down and heavily indebted Company by
a proper colonial government. Wholly in the spirit of the times, a policy
was pursued which would give the metherland the greatest possible
material gain, but yet would respect the rights of the indigenous
people. lt was a controversial question whether this was best achieved
by state exploitation or private enterprise, but since both involved
agrarian production for the world market the main interest in custom-
ary law concerned the nature of indigenous land rights (Boeke, 1918:
22). In a Memorandum (14/7 /1817) to the transitional government
('Commission-General'), Muntinghe, one of Raffles' former counsellors,
listed the conditions under which concessions to European agrarian
enterprise might be made. The firsttobe included were:
- 'that no Iands should be granted for this purpose other than
those not cultivated, inhabited, or possessed by the Javanese
people;
- that, consequently, this should exclude not only all peri-
urban and rural villages, but also all Iands known by the
village authorities to lie within the village boundaries, or to
be used as pasture for livestock.'
(Van Vollenhoven saw the latter condition as recognition of the Java-
nese village municipality and of its right not only over cultivated but
also over waste land in its domain.)
Others, too, had displayed more liberal views. Dirk van Hogendorp,
administrator (1794-98) in East Java and a convinced opponent of the
Company regime, pleaded that the Javanese should not have to be
- as Raffles had wanted - a kind of leaseholder of his land, but the
'owner' of it- not in the old Dutch common law meaning, but so that
he could say: 'This land is mine' (Van Vollenhoven, 1928:37). While
Dirk van Hogendorp started from an existing leasehold system which
he wanted to change, his brother Gijsbert Kare!, a leading politician in
Introduction LV

Holland, considered that according to Dutch positive law the Javanese

was already owner of the land.
In the Cornmission-General charged with taking over from the
British there was no agreement on agrarian policy. Though both Elout
and Van der Capelien considered it 'a matter of course that the Java-
nese small-farmer (tani) had to be guided', Elout thought in terms of
private European estates such as the Company had fostered in West
Java, while Van der Capelien believed that Java's agrarian economy
should be exclusively the concern of the government (Boeke, 1918:
52-4). It was Elout's opinion that all of the Indies was 'the property of
the sovereign' and hence 'every farmer a small tenant of the state' (Van
Vollenhoven, 1928:41) - a view shared by Du Bus, the King's Com-
missioner in the Indies in 1825-30. By that time, with Holland's own
economy in dire straits, the colony was a heavy financial burden.
Then Van den Bosch, as Commissioner-General ( 1830-32) invested
with special powers, introduced the so-called Cultuurstelsel (Culture
System) in Java. Unlike Raffles, whose ideas were biased by his knowl-
edge of the principalities, Van den Bosch based his own doubtful
conceptions largely on what he believed to be the situation in West
Java. He rightly accepted that the Javanese village constitution com-
prised 'heirs, descendants of the first occupiers of the land', called
sinkap, who were responsible for the whole land rent burden, in
cantrast to non-heirs. But he believed inheritance to be regulated by
Moslem law; hence he saw land law as a mixture of Brahman and
Moslem institutions, with adat as pliable as wax (ibid:43).
Under the new system the villages would contractually undertake to
make one-fifth of their cultivated land available for the production
(supervised by European officials) of crops for the European market
(mainly sugar and coffee), but receive a proportionale reduction in
land rent; the 'net profits' would go to the government.
In the decades that followed, the scheme proved a great success
financially, but it played havoc with village institutions and land rights.
Van den Bosch was succeeded by Baud, a conscientious and clear-
headed administrator. Though he extended his predecessor's policy he
was not blind to its hardships, which he tried to mitigate. Sensitive to
the autonomy of the Javanese village and its right of avail over un-
cultivated land within its domain, he would later help to safeguard
these rights in section 62 of the 1854 Constitution of the Indies - a
provision which gave rise to great controversy over the territorial scope
of the right of avail. In 1842 he founded the first School for Colonial
LVI Van Vollenhoven on Indonesian Adat Law

Civil Officers in Delft, and in 1851, though no scholar himself, he

helped to create what is now the Royal Institute of Linguistics and
Anthropology at Leiden.
The growing resistance to the abuses of the Culture System stimu-
lated the study of Javanese land rights. Governor-General Duymaer
van Twist (1851-56), for instance, ordered inquiries in Cirebon and
Banyumas, and appointed a Commission to report on contracts between
government and sugar producers in Java. The Commission's report,
published in 1862 well after his retirement, 'put Cabinet and Parlia-
ment in a position to know at least something about Javanese land
rights' (Van Vollenhoven, 1928:78). But the 'favourable turn of the
tide' as far as the interest in adat law was concerned came about in
1865, when 'Parliament was forced to take note of agrarian problems
and adat land law; the Indies administration of indigenous social
organization and the constitution of adat communities; the Missions of
adat family law and inheritance; and lawyers of transactions in land
as weil as in movables, and of problems of criminal law' (ibid:82).
In the period 1865-1870 Parliament dealt, among other things, with
two bills, the 'Cultures Bill' of Fransen van de Putte (1865) and the
'Agrarian Bill' of De Waal (1869). The former, which aimed at rein-
forcing Javanese land rights while enabling Europeans to found estates
on virgin land, foundered on Thorbecke's Opposition to the proposed
recognition of a Javanese individual right of ownership, which he
feared would adversely affect adat land law (see Idema, 1925: Ch.l).
De Waal's Agrarian Bill, which became law in 1870, added supple-
mentary paragraphs to the agrarian section 62 of the 1854 Constitution.
Thus leases of land were not to exceed 75 years; no alienation was to
interfere with indigenous rights; land cleared by natives for their own
use, or betonging to a village for common pasture or other purpose,
might be interfered with only 'in the public interest'; land occupied by
natives in hereditary individual use might be granted in ownership to
them at their request (subject to some limitations, e.g. as regards sale
to non-natives), etc.
The fierce debates, particularly on Van de Putte's bill, led to a pro-
clamation of Governor-General Sloet van de Beele, which assured 'the
people of Java' that their individual and communalland rights would
be recognized and protected, and that the nature of these rights would
be thoroughly studied. These investigations resulted in a number of
reports which proved to be among the riebest contributions ever made
to our knowledge of adat law: the Resurne on Bantarn (1871); three
Introduction LVII

volumes of Bindresurne for Java and Madura (1876, 1880 and 1896);
and eight Resumes for the Territories outside Java (1872-77).
At the same time that the agrarian question was providing politicians
with some notion of adat law, colonial civil servants were becoming
aware of it in new training courses at Leiden, Batavia and Delft. This
improved the situation, 'although the name of the course, "Religious
laws, indigenous institutions and customs", again had the result that
what was taught was Islam and ethnology, but not adat law' (Van
Vollenhoven, 1928:93-4).
Many civil servants and missionaries published on adat law, but
trained lawyers contributed only at a later stage. There was a small
handful of truly scholarly figures who preceded Van Vollenhoven or
who were his older contemporaries: Wilken (1847-91), an administra-
tor turned comparative ethnologist with special interests in adat law,
who later became a professor at Leiden; Liefrinck (1853-1927), an
administrator and specialist on Bali and Balinese Lombok; Snouck
Hurgronje (1857-1936), an Arabist famed for his sojourn in Jeddah
and Mecca disguised as a 'Moslem student of divinity', and an influ-
ential political adviser to the Indies government before becoming a
professor at Leiden; Van Ossenbruggen, a legal scholar and teacher at
schools for colonial administrators, later a high-court justice, with
particular interest in Indonesian conceptualizations of adat institutions.
The first volume of Van Vollenhoven's Adatrecht (1918) reflects his
indebtedness to their work, andin his Discovery (1928:99-110, 127-8)
he singles them out for generous praise and a succinct analysis of their
significance.
In 1909, at Van Vollenhoven's instigation, the Royal Institute of
Linguistics and Anthropology (then at The Hague) established a 'Com-
mission for Adat Law', which, supported by a sister institution in
Batavia, set out to publish systematic collections of widely dispersed
adat law data. Most of these were published in the Adatrechtbundels
(45 volumes since 1910) which contain pieces of varying length,
largely classified by the 'law areas' he distinguished. Partly concurrent
with these ran the Pandecten (10 volumes between 1914 and 1936),
consisting of brief quotations from writings on adatrecht systema-
tically organized. There were collections of adat case law (1912, 1916,
1924, 1935), extensive bibliographies (1927, 1937) and a Dictionnaire
de termes de droit coutumier indonesien (Van Hinloopen Labberton,
1934).
While the older material was being sorted out and systematically
LVIII Van Vollenhoven on Indonesian Adat Law

published, new field research - mostly part-time by administrative

and judicial functionaries - proliferated in topical studies, and many
major monographs appeared, notably those of Mallinckrodt (Borneo),
Korn (Bali), Soepomo (West Java), Vergauwen (Toba-Batak), Djojodi-
goeno and Tirtawinata (Central Java). In a mere thirty years, adat law
schalarship yielded a vast literature,25 virtually all of it cast into the
mould which Van Vollenhoven had presented early in his Adatrecht.

IV. The Place of Adat Law in the Indonesian Legal System

The Dutch legislature was for a long period in a permanent state of
conflict over whether the East Indies should have a single or a plural
system of law.
As far back as 17 4 7 the Company had made some provision for the
administration of indigenous law for its subjects in the interior of Java.
The systemwas later reformed by Daendels and Raffles and in 1824 it
was introduced in the big towns. After 1838, however, when the codi-
fication of law was completed in Holland, many asked whether the
Dutch legal doctrine, that custom gives rise to law only so far as
referred to by the written law, should not also apply to Indonesian
adat law. But the question was not affirmatively answered, and the
'General Provisions' of 1847 maintained the principle that, for reasons
of fairness and good government, the (non-Christian) natives of the
archipelago would as a rule be permitted to live according to their own
laws and traditional institutions.
In 1854, section 75 of the new Constitution (Regeringsreglement) of
the lndies laid it down that, except for European statutes declared
applicable to Indonesians or to which Indonesians had voluntarily sub-
mitted themselves, native courts would apply the 'religious laws, insti-
tutions and customs of the natives, insofar as they are not in conflict
with generally recognized principles of fairness and justice'. This
section also subjected Europeans in civil, commercial and criminal
matters to general decrees which were to conform as far as possible to
Dutch statute law, and thus established the legal system of the East
Indies on as basis of differential group law: a legal pluralism of
regionally differing adat law for natives and 'foreign orientals' equated
with them, and a Dutch statute law for Europeans.
The position has remained essentially the same in the subsequent
Constitution (Indische Staatsregeling) of 1925.
In Volume II (1931) of hismonumental Adatrecht Van Vollenhoven
Introduction LIX

devotes some 350 pages to an exhaustive analysis of 'The constitutional

position of adat law in the legal system of the Netherlands East Indies'.
One might lay aside those chapters with the thought: that is the past,
it is no Ionger topical. Yet this is not so. Very many lacunae, misconcep-
tions, objections and complicated technical problems which arose then
continue to appear in independent Indonesia.
The essence of the problern of the constitutional 'accommodation' of
adat law was seen by Van Vollenhoven in these terms: 'Even if the
adat law of the Indies had been explored in all its recesses, and even if
its maintenance were to conceal no secrets from us, it would still
present us with a major problern unknown to westem society. For in
the total legal system of the Indies, adat law and westem law lie side
by side: seldom tidily organized and neatly fitted together, but mostly
in some uneasiness, and occasionally in direct conflict. Does one of the
two - this is the question - provide the dominant framewerk into
which the other has to be fitted as a subordinate part, or are they
co-ordinated within a common Indonesian frame? And if so, how is
the one related to the other, and what is the structure that frames them
both?' (Adatrecht 11:405).
This problern has not been solved by Indonesian independence.
Writing in the mid-1960s, Lev found that Indonesia 'wants to create
a legal system which on the one hand is undeniably Indonesian, but on
the other is modern and intemationally acceptable. The legal profes-
sion is divided between those who lean towards an ideological
approach, the hukum revolusi, and those who try to maintain the older
symbols of their vocation. But both groups remain partially immersed
in the world of colonial law in which they were brought up and in
which, to some extent, law students continue to be trained' (1965:
305-6).
Though the division of citizens into juridical groups and the corres-
ponding differences in legal status have disappeared, the 'European'
private law of the colonial legal codes has remained operative. It
continues to apply to those Indonesian nationals to whom it ·was
declared applicable in the past, or who voluntarily submitted them-
selves (and their descendants) to it in whole or in part. The formu-
lation of a uniform private law, and the place or influence of adat
law, are largely unresolved problems. The same is true of criminal
law, which is still govemed by the Criminal Code of 1915.
What is incontestable, however, is that since 1900, through the
ever increasing amount of material provided by field research and by
LX Van Vollenhoven on Indonesian Adat Law

inquiry into the essentially 'oriental' values of Indonesian legal life,

but above all through the creation of an appropriate system, that is
by Van Vollenhoven's methodical classification of the materials of
adat law, its exploration in depth has been made possible.

Administrative and ]udicial Aspects

It should be emphasized that, even at the end of the colonial era,
much of Indonesia was not directly ruled but consisted of some 275
smaller and !arger 'self-goveming territories' in which, with some
limitations laid down in treaties, the powers of govemment were left
to the autochthonaus authorities. Even in Java, one of the oldest and
most 'directly' ruled possessions, there were four recognized prin-
cipalities under indirect rule.
This duality in the system of govemment had its origins far back in
colonial history. The East India Company initially only established
a few fortified coastal settlements in the archipelago. Gradually, how-
ever, mostly because of troubles in the interior which interfered with
commerce, it had to extend its influence. But even after the Napoleonic
Wars and the British interim govemment (1811-1816), when the
Indies had been incorporated into the Kingdom of the Netherlands,
Dutch govemmental power was by no means established everywhere.
During the protracted process of establishing its authority (Aceh was
not subdued until 1904) it was often considered wise not to introduce
direct govemment, but to be satisfied with treaties with Indonesian
princes and peoples, in terms of section 44(1) of the 1854 Consti-
tution.
As a result there was dualism not only in the kind of government
- direct and indirect - but also in the administration of justice:
justice in the King's name, alongside indigenous justice.
Moreover, even in the directly administered territories outside Java
and Madura, partly for reasons of personnel, the indigenous system of
justice was often maintained. In fact, in the 'Outer Provinces', that
is, outside Java and Madura, more than half the area consisted of
self-goveming regions, ruled by indigenous princes or headmen and,
usually, according to indigenous institutions. In these territories adat
law could be practised without restriction, except that 'religious laws,
institutions and customs' were not to conflict with 'generally recognized
principles of faimess and justice'. Laws made by the central govern-
ment, for example the 1915 Criminal Code, were in force in such
territories only if declared applicable.
lntroduction LXI

The government of independent Indonesia is trying to abolish this

dualism, and the system of local government for which it has legislated
is quite different from the colonial system of delegated and largely
decentralized government. The extent to which the new system leaves
room for an adat law guided and enforced by 'elders' and 'headmen',
rooted in and legitimated by adat and adat law, is difficult to
judge.

The colonial administration also recognized, throughout Indonesia, a

!arge variety of so-called 'native municipalities', which were authorized
to regulate and administer their internal affairs. In these municipalities,
adat and adat law used to be observed and respected under the pater-
nalistic guidance of Indonesian and European administrators, but this
category of mainly traditional jural community, too, has been reshaped
by post-colonial legislation, and so the question again arises of the
continuation of adat institutions (Logemann, 1947: 118-20).
Before the second World War, the East Indies system was often
considered an example of good colonial government. lt was weil suited
to the practical limitations of the colonial situation, and although
Van Vollenhoven's posthumaus publication on Constitutional Law
(1934) criticizes the excessive interference by government adminis-
trative officers, it can still be said that the system generally gave great
scope for the natural development of Indonesian institutions, especially
in the last decades of the colonial era, when 'emancipation' of in-
digenous officials and decentralization of government had become
fundamental policies (see De Kat Angelino II, 1931: 365-82).
After the war, respect for this aspect of Dutch policy waned sharply.
lt was, and is still, argued by some that the deliberate protectionist
policy had denied Indonesia many opportunities for development. 26
The protection of adat law was blamed for the backwardness of
political, legal and economic structures.
There is no reason to suppose that the growth and reform of law in
Indonesia could or should be different from anywhere eise: on the
one hand, the refinement of its own system; on the other, the reception
of useful legal institutions from outside. Van Vollenhoven has some-
times been misunderstood in this respect. In 1919, for instance, he
wrote: 'The country is too good and promising to be turned into an
adat museum' (1919:29). And in his last essay: 'There is no need
whatever to barricade access to western values - on the contrary,
they may have to be imported to fertilize oriental ideas. But forced
LXII Van Vollenhoven on Indonesian Adat Law

westernization to suit our convenience can only bring disorder in an

oriental society, and frustration to ourselves' (1933:239).

Administration of justice
The administration of justice in the colony likewise had a basic
dualism, with a distinction between:
a) landsrechtspraak or government justice 'in the King's name';
b) inheemse rechtspraak or indigenous administration of justice.
However, the two do not coincide with the administrative division
between directly administered and self-governing territories.
Because in Van Vollenhoven's text below there are frequent referen-
ces to different kinds of court dealing with adat law it is necessary
to give a brief outline of this rather complex system.27

a) The government administration of justice was itself dualistic,

in that there were different courts, depending on whether the
defendant in a civil case or accused in a criminal case was European
or not.
As regards Europeans it suffices to state that Dutch-derived statute
law was applied by six regional courts (raden van justitie) as courts
of first instance, and by a High Court as court of appeal.
For Indonesians, the colonial Constitution prescribed that, 'where
the native people are not left in the enjoyment of their own adminis-
tration of justice, justice shall be done in the King's name'. Local
(landraad) courts - in some places called rapat - were the ordinary
civil and criminal courts of first instance. Always in Java and Madura,
and elsewhere as often as practicable, the presiding judge was juridi-
cally qualified. He was assisted by two indigenous court members
besides a Moslem adviser and a griffier to record the process (often a
young prospective judge); and in criminal cases by an indigenous
prosecutor (jaksa) as well. In civil cases these courts mainly applied
adat law - or what the Constitution referred to as 'religious laws,
institutions and customs' - in a simplified western procedure; in
criminal cases the Criminal Code of 1915 was applicable.
Appeals could be made to the regional courts (in 1938 the Batavia
raad van justitie had a special bench for adat appeal cases attached
to it).
The government system further included a variety of lesser tribunals
for special purposes, such as regency and district courts for minor
criminal matters, and so-called 'priestly' courts (a misnomer) in which
lntroduction LXIII

the head of a mosque (penghulu) dealt with matters of Moslem law

affecting marriage, family property and inheritance.

b) About the indigenous system of justice it is important to know,

first, that it operated not only in self-governing territories, but fre-
quently also in directly administered areas in the Outer Provinces
(i.e. outside Java and Madura). Second, in directly administered areas
these indigenous tribunals operated under the supervision of the local
administrator (i.e. the Resident Commissioner, with powers to issue
judicial regulations, and to confirm, revise or quash judgments), and
its sessions were usually chaired by a civil officer in a non-judicial
advisory capacity; but even in self-governing regions the indigenous
system was not free from the government's scrutiny. (In the Javanese
principalities much of the indigenous system was even replaced by
government courts 'at the request of the princely authorities' - Hol-
leman, 1940:386).
In short, the term 'indigenous' (inheemse) justice means little more
than that traditional judicial authorities (headmen, chiefs, princes, etc.)
administered adat law, and were permitted to do so more or less in
the manner of their forefathers. In self-governing territories the com-
petence of thesecourtswas limited to the 'subjects of these states', and
a number of specified civil and criminal cases were withdrawn from
their jurisdiction. But all civil claims involving land, houses or crops
owned under adat law fell under their jurisdiction regardless of the
identity of the parties.

The resolution of legal disputes at grass-roots level is commonly referred

to as 'village justice' in adat law literature, but the term embraces
the smaller jural adat communities generally. In traditional judicial
systems and in everyday rural life these tribunals played (and often
still play) a much more important role than justice at higher Ievels,
for the vast majority of legal disputes were satisfactorily resolved here
without having to be taken higher up. Working with little formality,
and having no real powers to enforce judgments, these tribunals relied
on a spirit of give and take, on mediation and conciliation, rather than
on judicial incisiveness. This may be a reason why village justice was
officially known as 'amicable settlement' or 'arbitration', but not
'jurisdiction' (rechtspraak), and hence not recognized as part of the
indigenous administration of justice until the mid-1930s, long after
Van Vollenhoven and other adat law scholars had testified to its
LXIV Van Vollenhoven on lndonesian Adat Law

importance and popularity. The 1935 Ordinance on Viilage Justice

(dorpsrechtspraak) not only formally legalized the judicial function
of these village tribunals, but made it possible for a /andraad court
to refer a dispute to the village authorities for their decision before
dealing itself with the matter. Thus government judges were provided
both with a useful window on the mainstream of adat legal commerce
from which they could only benefit, and a means of checking possible
abuses of power (Ter Haar, 1939a).

Like most other ex-colonial states, Indonesia soon abolished the dualism
of the colonial judicial system, the emergency legislation of 1951 being
confirmed by the Judiciary Act 1970. By laying down that 'all adminis-
tration of justice in the Republic shall be clone by the State', section
3(1) of the Act formally abolished the former 'indigenous' adminis-
tration of justice (the administrative duality and self-governing terri-
tories having been abolished in 1948 - Van den Steenhoven,
1974:256, note 7). The new judicial hierarchy has three tiers: local
courts (pengadilan negeri), regional high-courts also acting as ap-
peal courts (pengadilan tinggi), and the Supreme Court (Mahkamah
Agung).
The local courts are a continuation (with revised competence) of the
former landraad courts. They have jurisdiction in all civil and criminal
matters not expressly reserved for the other courts, and are courts of
first instance for all persons.
In addition, religious courts (pengadilan agama) have been retained,
and there must be one for each local court.
In the Judiciary Act itself there is no mention of justice at the
village Ievel, which seems a step backwards from the 1935 Ordinance
to those who believe it is essential for judges to keep in touch with the
living law (Holleman & Sugijono, 1971). But the Explanatory Memor-
andum to the Act states that 'dispute resolution based on amicable
settlement or arbitration outside court remains permissible' (Van den
Steenhoven, 1974:256, note 1). So it is left to the discretion of govern-
ment judges whether or not to be advised by village authorities on
the antecedents of cases coming before them (for some heartening
examples, see Van den Steenhoven, 1970 and 1974).
Finally, Indonesia has established a uniform judicial system as one
of the means of promoting greater unity in the substantive private law.
In this respect the problems are formidable, and often besides adat
law the old colonial statute law is applied, though it is interpreted
Introducdon LXV

more and more differently as time goes on. There is still a long way
to go to a unified national private law.

H. W. J. Sonius

NOTES

1 Reproduced in his Adatrecht 111:658.

2 In the original Dutch version (1920), reprinted in his Adatrecht III:569ff., he
used rechtsstam; the English translation (lllinois Law Review XV(7), 1921)
as 'law tribe' seems less appropriate.
3 There is a good biography by Henriette L. T. de Beaufort, Cornelis van
Vollenhoven, Haarlem, 1954.
4 Protagonists of a renewal of the literary arts in the 1880s.
5 Van Vollenhoven commemorated him in the students' journal Minerva (6
May 1897); reprinted in his VG 111:667ff.
6 Exacte Rechtswetenschap, Brill, Leiden, 1901; repr. in his VG 1:3ff.
7 This excludes his efforts and publications in other fields of legal schotarship
in which he excelled.
8 Reprinted in his VG III:686-7.
9 De Gids, (69), 1905:307ff.
10 Reprinted in Adatrecht 111:22ff.
11 'Juridisch confectiewerk', reprinted in Adatrecht 111:719ff.
12 Adatrecht 11:13ff.
13 Hoofdstukken over Adatrecht, The Hague, 1933.
14 Reprinted in Adatrecht 111:65ff.
15 Adatrecht 1:517 et passim.
16 lbid, 625f.; 1919:24 et passim.
17 Section 51 of the 1925 N.l. Constitution.
18 De Beaufort, 1954:153ff.; VG 1:174ff.
19 Enc. N.l. (suppl. 1935:1381).
20 Van Vollenhoven used the term adat-volkenrecht (adat 'Law of Nations').
21 This summary can also be found in his De lndonesier en zijn Grond,
1919:9-10.
22 Three Kommissarissen-Generaal formed the transitional government of the
Dutch East lndies after the British interregnum. They were later replaced by
a Governor-General.
23 They include: Moestapa (1913); Sanggoenodirajo (1924); Enda Boemi (1925);
Soebroto (1925); Soepomo (1927; 1933); Soeripto (1929); Soekanto (1933);
Hazairin (1936).
24 For adat law bibliographies, see 'The Ethnography of Law: a Bibliographical
Survey' (ed. L. Nader, K. F. Koch, B. Cox), Current Anthropology, June,
1966.
25 See note 24.
26 See e.g. Soepomo (1947), Pye (1960), Wertheim (1964), Tas (1973:81-102).
27 For a more detailed and weil documented survey (including most useful
distribution tables) of the colonial judicial system, see the lntroduction by
Hoebel and Schiller to Ter Haar's Adat Law in Indonesia (1948:14-31).
LXVI Van Vollenhoven on Indonesian Adat Law

WORKS CITED

Boeke, J. H., Ontwikkelingsgang en toekomst van bevolkings- en ondernemings-

landbouw in Nederlandsch-Indie, Leiden, 1948.
Carpentier Alting, J. H., Grandslagen der Rechtsbedee/ing, The Hague, 1926.
Crawfurd, J., History ot the Indian Archipelaga (3 vols.), Edinburgh, 1820.
Deventer, C. Th. van, 'Een Eereschuld', De Gids, Aug., 1899.
Djojodigoeno, M. M. & Tirtawinata, Het Adatprivaatrecht van Middel-lava,
Batavia, 1940.
Enda Boemi, A., Het Grandenrecht in de Batak-Landen, (dissertation Leiden),
The Hague, 1925.
Furnival, J. S., Netherlands India: a Study ot Plural Economy, Cambridge, 1944.
- Colonial Policy and Practice: a Camparalive Study ot Burma and Nether-
lands India, Cambridge, 1948.
Gonggrijp, G., Schets eener Economische Geschiedenis, Haarlem, 1928.
Haar, B. ter, 'Nederburgh over Adatrecht', Indisch Tijdschritt v. h. Recht
138:723ff. (1933); repr. in his Verzarneide Geschritten, Vol. 11:140ff.
'Het adatprivaatrecht van Ned. Indie in wetenschap, practijk en onderwijs',
(Batavia Law School Lecture), 1937; repr. in his Verzarneide Geschritten,
Vol. 11:472ff.
Hazairin, De Redjang (dissertation), Batavia, 1936.
Hinloopen Labberten, D. van, Dictionnaire de termes de droit coutumier indo-
nesien, Amsterdam, 1934.
Holleman, F. D., 'Ter Haar's rede "Het adatprivaatrecht", etc', Indisch Tijd-
schritt v. h. Recht, 147(3), 1938.
- 'Die regspraak oor die inheemse bevolking van Nederlands Oos-Indie',
Bantu Studies, Dec., 1940.
Holleman, J. F. & Sugijono, 'Het belang van de adviezen van het dorpshoofd in
de dorpsjustitie voor de nationale rechter in Indonesie', Bijdragen Kon.
Inst. 127(4), 1971.
ldema, H. A., Parlementaire geschiedenis van Nederlandsch-Indie 1891-1918, The
Hague, 1924.
Jaspan, M. A., 'In Quest of New Law: the Perplexity of Legal Syncretism in
Indonesia', Comparative Studies in Society and History, VII(3), 1965.
Kat Angelino, A. D. A. de, Colonial Policy (2 vols.), The Hague, 1931.
Korn, V. E., Het Adatrecht van Bali (1924), 2nd ed., Leiden, 1932.
Lev, D. S., 'The Lady and the Banyan Tree: Civii-Law change in Indonesia', Am.
Journal ot Comp. Law 14(2), 1965.
Logemann, J. H. A., 'Om de taak van den rechter', Indisch Tijdschritt v. h.
Recht, 148(3), 1938.
- Wegen der Rechtswetenschap (inaugurallecture), The Hague, 1947.
Mallinckrodt, J., Het Adatrecht van Borneo (2 vols.), (dissertation Leiden), 1928.
Marsden, W., The History ot Sumatra, London, 1783.
Moestapa, H., Over gewoonten en gebruiken der Soendanezen, 1913. (Trans!. in
Dutch by R. A. Kern and publ. The Hague, 1946).
lnhoduction LXVII

Nederburgh, I. A., 'Rechtshervorming in Indie', De Gids, 1905(1), Verslagen

Indisch Genootschap, 2(12), 1905.
- Hoofdstukken over Adatrecht, The Hague, 1933.
Ossenbruggen, F. D. E. van, 'Prof. Cornelis van Vollenhoven als ontdekker van
het adatrecht', Bijdragen Kon. Inst., 90(1933).
Pye, L. W., 'The Politics of South-east Asia', in The Politics of Developing Areas
(ed. A. A. Almond & J. S. Coleman), Princeton, 1960.
Raffles, T. S., Substance of a Minute on the Introduction of ... a Landrental for
the Island of Java, London, 1814.
- The History of Java (2 vols.), London, 1817.
Sanggoenodirajo, D., Kitab Tjoerai Adat Lembaga Alam Minangkabau, Batavia,
1919.
Soebroto, Indonesische Sawah-verpanding, (dissertation Leiden), The Hague,
1925.
Soekanto, Het Gewas in Indonesie religieus-adatrechtelijk beschouwd (disserta-
tion Leiden), The Hague, 1933.
Soepomo, De Reorganisatie van het Agrarisch Stelsel in het Gewest Soerakarta,
(dissertation, Leiden), The Hague, 1927.
- Het Adatprivaatrecht van West-lava, Batavia, 1933.
- Kedudukan Hukum Adat dikemudian Hari, 1947 (2nd ed. 1951), Jakarta.
Soeripto, Ontwikkelingsgang der Vorstenlandsche Wetboeken, (dissertation Lei-
den) 1929.
Steenhoven, G. van den, 'Formele en informele rechtspleging: de dorpsjustitie
in lndonesie', in Rechtspieging (Jubilee publication, Law Faculty, Univ. of
Nijmegen), Deventer, 1974.
'The Land of Kerenda', Publicaties over Adatrecht V, Nijmegen, 1970.
Sugijono, (see Holleman, J. F. &)
Tas, S., De Onderontwikkelde Vrijheid; Indonesie toen en nu, Baarn, 1973.
Tirtawinata, (see Djojodigoeno)
Vergouwen, J. C., Het Rechtsleven der Toba-Bataks, The Hague, 1933 (Eng.
transl. The Social Organisation and Customary Law of the Toba-Batak of
N. Sumatra, The Hague, 1964).
Vollenhoven, C. van, (with others) 'De Aanslag op Leiden', De Gids, Febr. 1925;
repr. in bis Verspreide Geschriften, (vol. 1:174ff.), Haarlem/The Hague,
1935.
Staatsrecht Overzee (Colonial Constitutional Law), Leiden, 1934.
[N.B. For other works by Van Vollenhoven cited in this introduction, see
Annex B, below. - Ed.]
Wertheim, W. F., 'Social change in Java, 1900-1930', in bis East-West Parallels,
The Hague, 1964.
 CHAPTER I

ADAT, ADAT LAW, NATIVE LAW

[September, 1906]

[J] He who turns from the law of the Netherlands to the law of the
Dutch East Indies enters a new world.
He has learned to visualize law as a body of rules codified in
statutes and decrees: outwardly distinct from rules of morality, con-
duct, and aesthetics, internally a fairly comprehensive and coherent
whole, divided into four major segments - constitutionallaw, private
law, administrative law, criminal law - each in turn organized on
firm well-tested lines. He has become accustomed to think that the
composition of these rules needs no other historical explanation than
can be traced to the deliberation and resolutions of certain persons
and institutions (Cabinet Ministers, Parliaments, Government Com-
missions), and that its prospects of future development will be deter-
mined only by further deliberations and resolutions.
Of the insight that law is but one phenomenon in a ceaselessly
flowing society, engaged with other phenomena in a restless inter-
action of one contending force against another, he has grasped no
more than the colourless phrase that the law must take into account
the needs of society. And even if he does not feel entirely satisfied
with this view of the law of his motherland he has to admit that the
great majority have, consciously or unconsciously, accepted it, and
that it does suffice for our everyday Dutch legal practice.
How different in the Indies! Here, too, codified law, but only for
a numerical minority of legal situations and relationships. Here, too,
fixed outlines in the field of uncodified law, but varying widely
[ 4] according to the people concerned and their stage of development.
Here, too, changes of the law by deliberate decisions, but many more
by spontaneaus and unconscious transformation. Viewed through the
eyes of a codist the legal inventory of the Indies presents a jumble,
an incomplete, inadequate and untidy whole; but when explored by
one whose desire for knowledge and explanation of the living law
2 Van Vollenhoven on Indonesian Adat Law

on earth is inspired by the very diversity of its past and present

manifestations, this same inventory becomes an inexhaustible source
of instruction.
It is not difficult to sketch in broad outline the present-day relations
of codified to uncodified law in the Dutch East Indies. For Europeans
and for those ranked as Europeans - numbering about 80,000, and
all falling under the same codes of law - the position is similar to
that in the Netherlands: written law is preponderant, and customary
law the exception. On the other hand, for the 34 million natives
(taking the archipelago as a whole), the constitutional, administrative
and criminal law is partly codified, and the private law only very
rarely; for them, then, uncodified law is the dominant rule. And
finally, the category of 600,000 foreign orientals, ranked as natives:
their law is in an intermediate position, for although they have far
less uncodified law than the natives, their uncodified law is far
more extensive than that of the Europeans and those ranked as
such.
For these reasons the Dutch East Indies possesses a body of law
of a type not found in the Netherlands - the uncodified law of natives
and foreign orientals - or, should one wish to make use of Beseler's
antithesis (Volksrecht und ]uristenrecht, 1843), a 'lawyers' law' for
westemers side by side with a 'popular law' for the rest of the
population. But this oriental popular law has only this in common
with the thimbleful of customary law of the Europeans and those
classed as such: it is uncodified.
If this is the relative position of codified and uncodified law in
the Indies nowadays, it hardly needs mentioning that there was a
time when the islands of the archipelago knew nothing but uncodified
law. It may be assumed that before the advent of Hindu civilization
- dated, for Java, to the fifth century, and nowadays even to the
[5] first century, A.D. - only the indigenous law of the Malayo-
Polynesians was found in our archipelago. To this law foreign con-
tributions have been made by Hinduism since the eighth century, and
by Islam since the fourteenth and fifteenth centuries; and the late
Middle Ages saw the arrival of the Chinese with their own popular
law. But with all this, the total law of the archipelago remained
uncodified. lt was only when the Europeans (Portuguese, English,
Dutch) arrived upon the scene in the sixteenth and subsequent
centuries, that western regulations began to replace or supplement
the uncodified law of the orientals. But even now, in areas where
I Adat, Adat Law, Native Law 3

European influence has penetrated slightly if at all, the only law is

still the uncodified law of the population.
Since they are a part - indeed, the most important part - of the
complex of law in the archipelago, the oriental legal institutions have
to be considered in a common frame together with the westem law.
On the other hand, it is obviously impossible to divorce these legal
institutions from the non-legal elements of popular customs and beliefs.
Both these aspects are found in the ethnology of the Indies; and the
best part of what we know about the popular law of the Indies we
owe to ethnological studies. If, therefore, this uncodified law can be
divorced neither from other ethnological material nor from the rest
of the law of the Indies, a separate legal treatise can only be warranted
if, from the outset, this twofold coherence is constantly kept in mind.
In a study of the uncodified law of the natives and foreign orientals
the subject-matter therefore seems easily defined. But not the name!
Neither legislation nor leamed usage has been able to think up a
technical term for this legal material which is both short and apt.
And this point deserves the more attention because the multiplicity
of terms in use reflects a host of greater and lesser misconceptions.
The Regeringsreglement [Constitution of the Netherlands East
Indies, 1854] 1 itself already provides three terms instead of one:
[6] 'religious laws, institutions and customs' (s. 75(3)); 'religious laws
or ancient sources' (s. 78(2)); 'popular institutions' (s. 71 (3)).
In the rest of the East-Indies legislation the first of these expressions
is often repeated, sometimes in a slightly modified form, such as: 'the
religious laws, popular institutions and customs'. (-) But every now
and then, other terms have been used, 2 for instance: 'the written law
or old established custom' (-); 'native law' (-); 'local institutions
and usages' (-); 'the popular institutions' (-); 'local usage' (-);
and so on: a whole regiment of terms instead of one good name.
And if only one of these terms could be used; but in one the
religious element is over-emphasized, while in another this aspect is
completely ignored, and in a third not only the law of the people,
but also all other matters of customs and manners are included. It
therefore provoked amazement that the original draft (1904-1905) of
the bill to amend sections 75 and 109 of the 1854 Constitution retained
[7] the existing deficient terminology. The preliminary report of the
Dutch Lower House (-) suggested 'customary law'. But this term,
too, would be equally useless, because many parts of the uncodified
law of the natives and foreign orientals can be pointed out which
4 Van Vollenhoven on Indonesian Adat Law

are based not on custom but on statutory or other written provisions

(such as village by-laws, princely edicts, the rules of Islamic school-law
and of Chinese imperiallaw).
Legal practice, again, gets along with yet another word: it uses
'the law' (i.e., in a broad sense, the codified law) as against 'adat'.
The latter term- the Arabic word [cädat] for 'custom'- has found
a place in many indigenous languages, either simply as adat or 'adat
(Javanese, Malay, Acehnese), or as ngadat (Javanese), ödöt (Gayonese),
etc. lts appearance would suggest an association with the term the Indo-
nesian hirnself would use, but this impression is wrang. For one reason,
there is hardly any question of a fixed terminology in Indonesian
languages. In Java, for instance, the word adat is used for all that
is custom or ought to be customary: they speak of 'adat' in connexion
with festivities, visits, homage, the preparation of food, the rice stock,
and so on. In this sense the people of Minangkabau use, besides adat,
also limbago, or adat limbago; and it has sometimes been said
(Kooreman, 1901:146, 148f.) that 'adat' here represents 'law, or a
binding rule of custom', as against non-obligatory customs referred to
as limbago. But it would be wise not to rely too much on such
distinctions (so often based on the pretentious prattle of indigenous
authorities who want to impress the European investigator). In Mina-
hasan Malay - and elsewhere, in the Moluccas - one uses adat
kebiasaan or 'customary adat'.S The coupling of words, also known
outside the Moluccas, is apparently intended to clarify the word adat.
In the language of the Batak, at least of the Karo-Batak,4 the term
adat is uncommon, and popular custom is referred to as basa or bicara.
But the more important reason is that, in speaking of adat, the
Indonesian never (or hardly ever?) includes those elements of the
religious laws which are not rooted in 'the old law of the land'. These
[8] religious elements are distinguished from adat under such not
very strict terms as agama (Javanese), huköm (Acehnese and Gayonese)
and hukum agama (southem Sumatra). If, therefore, this naturalized
word 'adat' is being used to indicate the legal matter covered by
section 75(3) of the Regeringsreglement (which includes both indige-
nous and religious law) it fosters misunderstanding.
Is there, perhaps, another indigenous word which means 'law' in
an objective sense? Apparently not. There are literary words, such as
rajaniti in Javanese (from Sanskrit, and actually meaning royal con-
duct); but even if these meant. the same as what we understand by
'law', they would obviously not serve our purpose.
I Adat, Adat Law, Native Law 5

If, therefore, the legal material popularly known as adat is to be

defined in such a manner as to include only the 'adats that have legal
consequences' (Snouck Hurgronje, 1893:357), and to avoid all con-
fusion with other native interpretations, then the simplest solution
would be to speak of 'adat law'. Casually or incidentally this term
has been used in an objective (occasionally also in a subjective) sense
by various authors: Snouck Hurgronje, Nederburgh, Juynboll, Scheuer.
(In most of these sources 5 the term is synonymous with 'indigenous
law' to the exclusion of religious elements.) And last but not least,
adat law has already been used in a number of official papers. 6 The
term is evidently viable and fulfils a need.
[9] Should 'adat law' be accepted, its technical meaning must not,
of course, be confused with that of other terms such as 'indigenous
law' or 'native law'. 'Indigenous law' has a more restricted meaning,
because it refers to adat law minus its foreign religious elements.
'Native law' (in the accepted English sense) again covers a wider field,
because it embraces both the codified and uncodified law applicable
to natives, and in the Indies therefore also includes any Native
Criminal Code or Native Code of Procedure.
Confusion is bound to arise unless the terminology is fixed:

I NATIVE LAW:
A. Adat Law of Natives:
(1) Indigenous Law
(2) Religions Elements
B. Codified Law for Natives
II LAW OF THE FOREIGN ORIENTALS:
A. Adat Law of foreign orientals:
( 1) Popular Law
(2) Religions Elements
B. Codified Law for foreign orientals

The use of the term adat law has an even stronger claim to prefer-
ence because it serves to weaken the notion (already refuted above)
that a sharp and rigid line separates legal usage from other popular
usage, or adat law from the rest of the adat. The borderline is, indeed,
so vague that it is often difficult, and sometimes impossible, to
distinguish the one from the other. This problem, for instance, became
evident where a human penalty is added to the vengeance of gods
or spirits (pantang, rebu, pemali) upon the contravention of certain
6 Van Vollenhoven on Indonesian Adat Law

prohibitions; or where mortal man hirnself can invoke such a state

of pantang as regards a thing or action (e.g. by putting up mystical
signs in order to prevent entry into a certain forest). lt also obtains
when a degenerate adat in Java prescribes (-) that a contribution
[10] (sumbangan) made by an invited relative or friend to a wedding
feast should, if of any value, be reciprocated at a later date by a gift
of exactly the same value and preferably also of the same kind, when
a wedding or similar festivity takes place in the hause of the donor.
If, later, the fulfilment of such an adat gives rise to a dispute or even
Iitigation, it may be difficult to decide whether this is a matter of
law or merely of etiquette. And again, there are marriage prohibitions
in Java which may be ignored, provided that the appropriate mysterious
protective measure (sarat) has been complied with (-).
But this overlapping of custom and customary law need not prevent
a separation of the two, because in many instances it is easy to
distinguish the adats with legal consequences, and to set them apart
from adats without legal consequences (such as: the Acehnese adat
forbidding men to fetch rice from the granary; or the Batak adat
prohibiting initiates to appear in public within seven days after their
circumcision; or the Javanese adat prescribing the use of yellow ketan-
rice on many occasions; or mourning customs everywhere).
As a matter of fact, one will repeatedly find that this adat law
contains provisions (e.g. with regard to clothing, the shape of houses,
moral conduct) which, in the Netherlands, one would never expect
to see classified as 'law'; but if they carry an enforceable sanction,
how could this name be denied to them?
To adat law, interpreted in this sense, this study will be devoted.
Wehave already a number of monographs on it; but we Iack additional
material and co-ordination. Moreover, there is no foreign study which
could serve as a model.
If the publication of this book had to wait for the preliminary
arrangement of all this material, it would not appear within the next
ten years. And in the meantime the men on the spot, who have the
finest opportunity of enriching our knowledge of this law, would
be deprived of any guide.
(--)
 CHAPTER II

TUE ELEMENTS OF ADAT LAW

[September, 1906]

[14] The collection of rules of conduct applicable to natives and

foreign orientals - which are 'adat' on account of their uncodified
state, and 'law' because they carry sanctions - has not been derived
from a single source. As with the languages and ethnic groupings,
the influence of history is noticeable. Against the Malayo-Polynesian
background of the indigenous languages, Sanskrit, Arabic, Portuguese
and Dutch words and usages appeared as the result of the arrival of
Indian, then Moslem, and finally European, foreigners. Against the
Malayo-Polynesian background of indigenous beliefs and customs the
imprint of Hindu, Moslem and Christian shapes and shades became
visible. Likewise, the languages and customs of the Chinese and Arabs
in the Indies were subject to non-Chinese and non-Arabic influences.
1t was no different with the adat law of these peoples. Here, too, the
indigenous Malayo-Polynesian law is still the background of the adat
law of the Indonesians, whether autochthones like the Batak, Dayak,
and Toraja, or immigrants like the members of the Malayan race.
But among the 34 million-odd Indonesians of to-day (-) only a
minority estimated at less than 3 million has remained pagan, adhering
to an animistic-fetishistic religion (Badui, Tenggerese, many Batak, the
inhabitants of the interior of Borneo and Celebes, the people of New
Guinea, the Baliaga in Bali, etc.). The majority follows one or other
[15] of the world's great religions, as can be seen at a glance from
the map (not always accurate) of the distribution of religions attached
to the Koloniaal Verslag of 1896: one million Hindus (Bali and
Lombok); more than 30 million Moslems (Java, Madura, Sumatra,
the coastal areas of Borneo and Celebes, Ternate, Lombok, etc.);
310,000 Christians (260,000 Protestants and 50,000 Roman Catholics
in the Minahasa, Ternate, Amboina, Bataklands, East Java, Central
Java, etc.). And so it will also be found that into the adat law of
non-pagan natives (-) there have slipped elements now of Hindu,
8 Van Vollenhoven on Indonesian Adat Law

now of Moslem and now of Christian, origin, or a combination of

these elements in areas where Islam has succeeded Hinduism (Central
and East Java) or Christianity Islam. Similarly, the adat law of the
foreign orientals consists mainly of the popular law peculiar to each
group (550,000 Chinese, 28,000 Arabs, 17,000 Indians, Bengalese and
others), but here, too, foreign religions have left their mark. Conse-
quently, anyone wishing to investigate the adat law of the present
day or that of centuries ago, will, Iike the philologist and the
ethnologist, have to be prepared to strike deposits of foreign origin.
It has already been indicated (p. 4) how Indonesian linguistic usage
distinguishes between original and foreign elements of adat law by
placing the adat of the ancestors on the one side - e.g. the adat
poyang in southern Sumatra (Wilken, 1891:237, 177) - and parts
of the religious law on the other.
All this seems simple enough. And yet here lies probably the
greatest obstruction to a straightforward study of adat law, an
obstruction which has, in fact, blocked the way to this study until
recent years. It can be put in one sentence: it is the wholly erroneous
supposition that law follows religion, that the pagan Indonesian there-
fore has pagan law, the Hindu Hindu law, the Moslem Moslem law,
(16] the Christian native Christian law (insofar as this may exist) -
a supposition which is based on nothing, which is emphatically
contradicted by the facts, but which, both in our Indies and elsewhere,
has wielded, and is still wielding, its obnoxious influence.
The Dutch East Indies Company was apparently able to stay free
from such a prejudice, because the few activities which brought it
into the field of adat law give no reason to suspect it of this mis-
conception. According to Mayne (1892:42) the Company 1 in 1707
ordered that the legal usages of the Tamil people of Jafna in Ceylon
should be recorded, that is, not Hindu law but Dravidian popular
law. This collection was subsequently submitted to, and approved by,
twelve 'Moodelliars' or prominent natives, and finally proclaimed as
an authoritative law-book under the name 'Thesawaleme'.2
In Batavia, in 1750, a 'compendium of the principal Javanese laws'
received official approval, but although it professes to be an extract
from a Moslem law-book, it appears to be indigenous rather than
Islamic in character (Plakaatboek VI:14-37). In 1759 the Government
of the Indies sanctioned a compendium, composed at Macassar in
1775, of 'native laws at the courts of Boni and Goa, in use from time
immemodal until the present day' ,3 Admittedly, the Company in 1754
II The Elements of Adat Law 9

autborized Freijer 4 to draw up a 'compendium of tbe principal

Mobammedan laws and customs', but tbis collection deals witb tbe
very sections of tbe Moslem law ('inberitance, marriages, divorces')
wbicb bad, in fact, largely become operative. lts approbation 5 in no
[17] way aimed at forcing tbe Moslem law upon tbe population, as
is clearly revealed in tbe Resolutions of 1804 and 1805.6 And in
1768, under tbe influence of tbe Company, tbere came into being
tbe collection of princely laws known as the Cirebon Law Book or
Pepakem Tjerbon, 7 which also refrains from confounding Islamic law
with the law of Moslem natives.
In British India, on tbe other band, this misconception was already
firmly entbroned during the time of the Britisb India Company by
Warren Hastings (1772-85), the Daendels * of that country. When
Warren Hastings sets about organizing the administration of justice
in Bengal, and also wants to prescribe something for the indigenous
law, be provides in section 23 of his 'Plan for the Administration of
Justice' of 1772,8 and later in section 27 of tbe Ordinance of tbe
Govemment of Bengal of the 11th April, 1780:
'that in all suits regarding inheritance, marriage, and caste, and
other religious usages or institutions, the laws of the Koran with
respect to Mobammedans and those of tbe Shaster [the books
of Hindu law] with respect to Gentoos [Hindus] sball be
invariably adhered to'.
In 1781 this provision, with the addition of the word 'succession', is
re-enacted in section 37 of tbe amending Ordinance of July 5th, and
witb extensions confirmed in an Act of Parliament of tbe same year
(21 Geo. III, c. 70) with regard to the jurisdiction of the Supreme
Court at Calcutta. This Act, baving stipulated tbat the inbabitants
should retain the benefit of 'all tbeir ancient Laws, Usages, Rights and
Privileges', provides in section 17 'that tbeir Inheritance and Succession
to Lands, Rents, and Goods, and all Matters of Contract and Dealing
between Party and Party sball be determined, in the Case of Mabome-
dans, by tbe Laws and Usages of Mabomedans, and in tbe Case of
Gentus, by the Laws and Usages of Gentt1s'. To tbis, section 18 adds
that also tbe rigbts and powers of family elders and family beadmen
sball be upbeld 'according as the same migbt bave been exercised by
[18] tbe Gentu or Mohamedan law' (Cf. Ilbert, 1898:59,253-54,283,

* [Governor-General of the Dutch East lndies (1807-1811) and a man whose

name has become a byword for ruthless driving power. - Ed.]
 10 Van Vollenhoven on Indonesian Adat Law

388-91). In the same manner, in section 15 of his Plan, Hastings had

recommended a provision with regard to prescription, with the remark
that this was in accordance with Islamic law as well as with Hindu
law and 'the legal Practice of the Country'.
With what result? lt was gradually being realized that there, too,
the adat law of the people is by no means the same as the religious
laws of the various population groups (ibid:393f., 402f.). There, too, a
little more study began to be devoted to indigenous law in particular.9
But on this point the administration of justice in British India still
seems to cling too much to the old fallacy, and with damaging results.
Listen to Mayne's lament (1892:41f.):
'lt is much to be regretted that so little has been done in the
way of collecting authentic records of local customs. The belief
that Brahmanism was the law of India was so much fastered
by the pundits and Judges, that it came to be admitted conven-
tionally, even by those who knew better. The revenue authorities,
who were in daily intercourse with the people, were aware
that many rules which were held sacred in the Court, had never
been heard of in the cottage. But their knowledge appears rarely
to have been made accessible to, or valued by, the Judicial
department . . . (And yet) what rich materials are available, if
they were only sought for.'
I t is certainly not surprising that the application by the courts there
of Hindu law instead of adat law has proved an oppressive burden
for those who seek justice (Van der Lith, 1882:234). And most
certainly it serves no purpose to turn to British India, which itself
has lost the trail, in order to find out what our own government policy
with regard to adat law ought to be (Bl. 1904-5, 121(4): par. 6).
Neither Daendels, nor Raffles, nor the Commissioners-General and
Governors-General of the Indies in the first half of the last century
[19] seem to have followed Hastings' example. Thus Freijer's com-
pendium, renovated by Du Bus with regard to the law of inheritance
(ISb. 1882 no. 55) does not displace one jot of indigenous law but
has, like the compendium of 1760, only been published 'in order to be
sustained when and where applicable'.
But it was to be different - why? - with the framing of the
legislation of 1 May, 1848,1 0 and also with the discussion [in 1851-
54] of the bill on the Regeringsreglement. On several occasions during
the debate in the House,U though only once or twice in the documents
themselves,12 it was evident that Cabinet Ministers and Members
II The Elements of Adat Law 11

failed to understand the problem, and that they considered the

'religious laws, institutions and customs' of the people to be virtually
identical with Moslem or Hindu law. Consequently, instead of placing
indigenous law first and the religious element second, the words
'institutions and customs' were placed after 'religious laws', thus
following the phrasing of the legislation of May, 1848. The idea was
certainly not to provide a new place for religious law in the adat law;
it was merely a question of continuing the law in force, as is evident
from such terms as 'continuous' in section 11 of the Algemeene
Bepalingen,1s (-) and 'ancient religious laws, popular institutions
and customs' in [various judicial regulations] .14 But if the choice of
name was inappropriate for the existing adat law, this was due to
Iack of knowledge, and not because a change was wanted. Since then
this error has recurred again and again in various shapes.
(--)
[20] All these formulations seem to indicate that, in general, un-
considered opinion still regards the adat or adat law of the Indies
and the religious laws of the Indies as virtually synonymous, instead
of recognizing that indigenous law forms the bulk, and the scraps of
religious law merely the incidentals, of adat law.
lt might nevertheless be possible that this way of representing
matters, although historically incorrect, could be justified on practical
[21] grounds, on the assumption that the three religious laws had
eaten so deeply into the adat law that hardly anything remained of
the Malayo-Polynesian law or of the popular law of foreign orientals.
But this argument, too, falls down. For in the adat law of Hindu
Indonesians, Hindu law is, on the whole, of no consequence, except
in connexion with princely govemment and the caste system. In the
adat law of the Moslem Indonesians and foreign orientals no Islamic
law applies, except with regard to the administration of religious
justice, religious levies, parts of family law, inheritance and pious
foundations; and even in these cases it applies by no means fully or
universally. Finally, in the adat law of Christian natives and Christian
foreign orientals (if these exist) (-) the influence of a possible
Christian law can only rarely be recognized, as in marriage law, or
in provisions about interest on loans. Also in practice, therefore, the
religious laws occupy only a secondary position; and as far as the
three million pagan Indonesians are concerned, they do not apply
at all.
And yet, at least as regards Islamic law, outward appearances
12 Van Vollenhoven on Indonesian Adat Law

sometimes suggest a wider sphere of operation. After all, for many

aspects outside the scope of the above-mentioned subjects (adminis-
tration of justice, levies, family law, pious foundations) Arabic-Moslem
terms are found in Moslem areas of the Archipelago; right of owner-
ship is milk (milik, milek, etc.); common property sarakat; offer and
acceptance ijab and kabul; blood-price is diah (diat, diiU); and custom
itself, adat. Does it not follow, therefore, that Moslem law governs also
these subjects? A counter question may provide the answer. Our own
Dutch legallanguage is, unfortunately still overburdened with Roman
law terminology, such as reivindicatio, mora, negotiorum gestio, actio
pauliana, ab intestato, venia aetatis. In criminal law one speaks of
furtum usus and crimen repetundarum, in constitutional law of forum
and fiscus, in international constitutional and administrative law of jus
postliminii and capitis deminutio. But who would draw from this the
conclusion that we are still governed by the system of Justinian? I t is
mere learned pretence! We meet with a similar pretence- but more
excusable, because an Indonesian versed in holy writings is expected to
see the operative field of Islamic law as widely as possible - when
[22] terms derived from Moslem law are affixed to common Indo-
nesian legal concepts which for centuries have had indigenous names
(such as bangun, for blood-money). Such usages are no proof of a
wider sphere of operation of Islamic law.15
However, although the influence of Islam is restricted mainly to
the aspects indicated above, in a few regions and during certain
periods, it did go further. For instance, here and there in the native
states in the Outer Provinces [i.e. the islands outside Java and
Madura], and also in the Principalities of Java, capital offences were
taken to a religious court. Further, about 1866 it was discovered
(Bb. no. 1835) that the religious court in Lebak dealt with the
pledging of agricultural plots. And, according to Snouck Hurgronje,
it appeared from fragments discovered in the archives of the old-time
pakih [principal religious judge] of Banten, that various contracts
about transfer of ownership used to be concluded and registered
in optima forma before the judge or his representative, mainly in
accordance with the provisions of Islamic law. In Aceh - again
according to Snouck Hurgronje - the number of people who lost
their right hand as punishment for theft used to be fairly !arge, and
many of them were exiled to Pulo We. Islam has sometimes gained
a measure of influence, too, on issues the principal aspects of which
remained governed by Malayo-Polynesian law, for instance, the
II The Elements of Adat Law 13

determination of the amount of blood-money.16 But the relation of

religious and indigenous law is not in the least reversed by such
examples; they only serve as a waming that we should no more
indiscriminately deny the influence of Islam than others have in-
discriminately accepted it.
This secondary, purely incidental, significance of the religious laws
for the adat law of the Indies has not only been most lucidly
expounded, but (at least for Islam) also fully explained historically
by Snouck Hurgronje- casually in his Mekka (1888-9), 17 extensively
in De Atjehers (1893-4),18 again in the Zeitschrift der Deutschen
[23] Morgenländischen Gesellschaft (1899),19 and finally in his Gajo-
land (1903).20 These conclusions have been summarized in Juynboll's
textbook on Islamic law.21 They also fully conform with what Lief-
rinck writes about Hindu law,2 2 and what Nederburgh vividly and
clearly demonstrates 23 in connexion with the implications of section 75
of the Regeringsreglement. And all these arguments find powerful
support in Carpentier Alting's information on adat law in the Mina-
hasa.24 In this area there are a few pagans and Moslems, but the
great majority are Christian. Does this mean a sharp, triple distinction
in adat law, and practically no pagan law? Not even remotely so!
I t is in the main the old indigenous pagan law that has remained for
all people, with the result that the pagan, Moslem and Christian Alfur
inhabitants all have virtually the same law, except with regard to the
conclusion and dissolution of marriages, which are practically the
only matters in which differences occur. Even more significantly, the
adat law of the Moslems in the Minahasa, far from being uniform,
sometimes shows marked differences, depending on whether these
people are of Minahasan or other Menadonese origin, or from other
islands. What then, in the face of facts like these, remains of the
identification of religious law and adat law?
For no part of our material is an accurate assessment of the relation
between indigenous law and the religious elements so essential as for
the adat law of Christian Indonesians (Javanese: serani, or keristen;
Malay: serani). They are found, mostly in small groups in different
areas in the Indies: in west, centrat and east Java, and various Batak
areas, in Nias, at Sawahlunto, in Bomeo, the Minahasa, Bolaäng-
Mongondow (Menado), south Celebes, at Posso (central Celebes), in
the Tematan archipelago, in New Guinea, Amboina, Timor, Sawu,
Sumba and Sumbawa - a total of 260,000 Protestants and 50,000
Roman Catholics. Is it necessary to say that, living in areas so far
 14 Van Vollenhoven on Indonesian Adat Law

[24] apart and having been converted at widely divergent periods,

the Christian people differ vastly from one another? And that there
is nothing more dangeraus than to label them all with the same tag?
I t (-) soon becomes evident that, in order to understand the
adat law of the Christian Indonesians, one must first of all ask whether
they became Christian after having been pagan, or after having been
Moslem. If they were converted from paganism - like the Batak,
Minahasan, or New Guinea Christians - then they have ceteris
paribus retained their old adat law, except for some points which
were incompatible with Christianity or ousted by Christian regulations.
In this case the pretext that nobody would be able to identify their
adat law 25 is simply untenable.26 But if Christianity has followed
upon a few centuries of Islam - as in Java - the problern becomes
serious. Islam usually introduces a greater or lesser part of its family
law and law of inheritance, and this by means of the administration
of justice by Moslem religious courts. Suppose now that a Moslem
becomes a Christian. For him the religious jurisdiction in terms of
sub-section 78(2) of the Regeringsreglement falls away, and hence-
forth a government court will have to judge disputed matters of
family Iaw and inheritance for him. But according to what rules?
Already centuries ago Islam must have driven out the greater part
of the indigenous marriage law and important aspects of the indigenous
[25] law of inheritance; but Islamic law does not avail him who
abandons Islam. What then can a government court accept as such
a person's law of marriage and inheritance if his village by-laws, or
the Mission concerned, have failed to formulate a new adat? In this
case the court faces a vacuum, and no one knows what law should
be applied to the marriage or to its dissolution or to the distribution
of the estate. For even assuming that one could speak of a Christian
law on these points, (-) this could not indiscriminately be imposed
as adat Iaw upon such persons. And though a distinct adat might
have developed among a group of Christian Indonesians or in an
Indonesian Christian parish, even this possibility can be discarded if
the conversion is limited to a few individuals only. The judge might
now resort to the shock-treatment suggested in section 75(6) of the
Regeringsreglement and prescribe a diluted form of western law for
the unfortunate Christian Iitigant; but he then knows for certain that
he dispenses a kind of justice which will suit the Iitigant only in
exceptional cases. Some time ago there seems to have been a landraad
[government district court] in Java which, in desperation over an
II The Elements of Adat Law 15

inheritance dispute, persuaded the Christian involved to become a

Moslem again for the occasion, in order that his case might be decided
by a religious court (whose jurisdiction, incidentally, was highly
questionable, since the parties did not fall under its jurisdiction at
the time the inheritance fell due). After the case he could then
re-embrace the Christian faith! The need must have been very pressing
if an officer of the judiciary had to resort to such measures. When,
in another case, the official of a land-registry in Kediri [central Java]
refused to register the widow and children of a Christian Javanese as
heirs to his land unless they could produce a certificate from the
Moslem 'council of priests',27 its penghulu rightly refused to have
anything to do with the matter.2s
(--)
[26] The Missions often know a way out. Church marriages, baptismal
certificates, marriages dissolved by church councils, although they
admittedly circumvent law and old adat, are acceptable as new adat.
In many cases, however, the Missions are unable to rectify existing
defects. One need only think of the complications which may arise
when a Christian and a Moslem native have a common right to land,
or when they jointly lay claim to a deceased's estate. (-) Also, for
Christians who turn Moslem, the added presence of religious elements
may pose thomy legal problems (Carpentier Alting, 1902, 1(1):137).
It cannot be denied that there is every reason for wise legislation in
these matters, if only to eliminate obstructive rules.
The question perhaps arises whether the relationship between the
indigenous and religious elements in adat law deserved such full
discussion. But then, see how, even nowadays, many misconceptions
on this point exist everywhere. De Lauter, in the latest edition of his
manual of constitutional and administrative law (1904:476), admits that
'no interpretation of law, based on a Moslem or other foreign source
of law, can ever be correct if there is no conclusive evidence of its
having penetrated the legal consciousness of the people, and of its
acceptance as part of their customs'. But he subsequently (p. 480)
speaks of a disregard for Islamic and native legal concepts in the
Native Criminal Code, although neither in the Indies, nor elsewhere,
are the traces of Moslem criminal law worth mentioning. Kleintjes
[27] (1903, 11:44) admits that 'only such religious laws may be con-
sidered as have been accepted by the natives of the country, and as
have been developed with and by the adat'. But a moment earlier
(p. 43) he had tumed this relationship upside-down by demanding
 16 Van Vollenhoven on Indonesian Adat Law

an investigation 'into the extent to which the religious laws had been
altered by local customary law, popular institutions and customs';
and elsewhere (p. 55) he protests against the idea that Javanese
Christian natives should, in terms of section 75 [Regeringsreglement],
be subject to 'the Moslem law' (which could never be their religious
law) 'as modified by and integrated with local custom'. De Savornin
Lohman (1901 :431) appears to accept the identity of adat law and
religious law, stating that 'for those natives who have embraced
Christianity . . . the religious laws, institutions and usages which
governed them before their conversion, are of no consequence'.
(--)
The Government of the Indies itself, in its commentary 2 9 on the
Native Criminal Code of 1872 (highly deficient on the subject of
adat law), repeatedly gives pride of place to the Islamic law as the
historical law of the Moslem Indonesians. Court decisions confusing
the issue are legion. And on November 24, 1896, the Minister, Kuyper,
even taught the Dutch Lower House that 'the criminal law for the
[28] native was wholly founded on the verdicts of the Koran', where-
by he ignored not only the fact that in government courts adat criminal
law had been replaced by the Native Criminal Code, but also that,
had adat criminal law still been valid, it would not have been Moslem
criminal law, and, even had it been Moslem criminal law, it would
have had to be looked for not in the Koran but in entirely different
books.
In view of all this uncertainty and confusion on a major issue, one
might certainly have expected from the Minister a clear statement of
the attitude of the Government towards the much disputed constituents
of adat law, when he introduced his bill (Bl. 1904-5, no. 121) for the
progressive replacement of adat law. But this much is certain: whether
due to caution or to lack of perspicacity, both the theory of reception
and the opposite doctrine could be read from the voluminous com-
mentaries. As a result the government proposed the retention of the
ambiguous phrase: 'religious laws, institutions and customs'.
(--)
Fortunately, in the legislation itself - a better guide than ministerial
explications - there are both early as well as more recent symptoms
which reveal that, in several fields, the worthlessness of religious laws
had to be recognized. [For instance, the words of] sub-section 71(3)
of the Regeringsreglement, 'Where these provisions . . . are not in
accordance with the institutions of the people . . . they shall not be
II The Elements of Adat Law 17

applied', show an awareness of the fact that, at least as far as the

organization of the indigenous villages was concerned, the religious
laws were irrelevant. (-) And such examples can easily be multiplied
(see p. 3, above).
(--)
[29] But, regrettably, all this is again outweighed by the prov1s1on
instituting an advisership to government courts of justice. It is a
concession to a false conception of adat law, which dates back to
the 1st May, 1848, but which has exerted its evil influence to the
present day.
What was the legislator's aim with this advisership? He wanted
to be certain that the government judiciary, when applying adat law
(i.e. the 'religious laws, institutions and customs') as a court of first
instance, would have the benefit of advice on relevant points of adat
law from a native or foreign oriental. Section 7 of the Judicial Code
(a Royal Decree of 1848) provided for such expert advice in the
govemment administration of justice throughout the Indies.
(--)
[30] What connexion has this advisership with our enquiry into the
elements of adat law? It is this: the choice of adviser prescribed for
these cases makes it as clear as daylight how badly the religious laws
were confused with adat law by the legislation of 1848.
Before 1901, section 7 provided no adviser in adat law cases in-
volving pagans (-), but the rules of procedure in the Outer Provinces
prescribed (unlawfully) the advice of either a headman or a person
of the same nationality and religion as the native Iitigant. In 1901
this provision was legalized and made general. No objections, of
course. Before 1901, if the Iitigant was Hindu, section 7 prescribed
no adviser, but sections 11 and 26 of the Bali regulations 3° provided
for the advice of the pedanda, the Hindu priest. The Bali regulations
must have assumed that the Hindu Balinese have Hindu law as their
adat law, for otherwise this provision is hard to explain. The wise
arrangement mentioned above for pagan natives was, in 1901, made
generally applicable to Hindu natives as well; but has this changed
or improved judicial practice in Bali and Lombok?
If the Iitigant is Moslem (by far the most common case), advice
is given by a Moslem religious official (incorrectly called a 'priest')
or by another Moslem considered to be versed in the scriptures. But
should this adviser (in Java he would be the religious judge at the
regency capital, who is usually also head of the mosque) have a knowl-
 18 Van Vollenhoven on lndonesian Adat Law

edge of any law at all, it will be of whatever Moslem law he has

picked up at a religious seminary or elsewhere. But the kind of case
in which Moslem law is applicable is, in fact, taken to the religious
court (the so-called 'council of priests' in Java), and not to a govern-
ment court. Ninety-nine per cent of the adat law cases with which
[31] a govemment court deals are govemed, however, by the in-
digenous law. If, therefore, a penghulu in Java is called in to advise
on adat law, but explains instead the nature of Moslem law - e.g.
the Moslem law of sale or of pledging or of cutting off the right hand,
as one writer after another has parroted - his advice is worthless.
This is not because the judge cannot follow him (-) (in civil cases
he may do so, while in criminal cases he has to take note of what
the adviser says), but because such advice involves something not
contemplated in section 7, which had in mind adat law and not lifeless
Islamic school-law. It is as though a judge in the Netherlands, needing
to be enlightened on Friesian legal usages, were to be read a passage
from the Code of Justinian!
Yet the fault is not with the penghulu who must in this situation
regard hirnself as a mufti or consultant on Moslem law. It lies with
the legislator of 1848, who stipulated the wrong adviser, and with
the legislator of 1901, who perpetuated the error. There is a tendency
to justify these legislators by imputing to them the wish to have the
religious law of the people heard in the court house, as happens in
Aceh Major where, in the administration of justice by the uleebalang
(chief), the kali or religious judge is sometimes heard as a mere
formality (Snouck Hurgronje, 1893: 101). But this interpretation is
clearly Contradietory to both the old and the new wording of section 7,
which refers not to religious law, but to adat law as meant in sub-
sections 75(3) and (4) of the Regeringsreglement.
And now the Christian natives. With regard to this category the
legislator has had to eat the bitter fruit of his ill-considered choice.
Had he realized the vast difference between adat law and religious
law, he would have understood that an adviser competent to advise
on the indigenous law of a Moslem Iitigant, will also be competent
to advise on the identical indigenous law of a Christian Iitigant. Or,
to put it differently, that if the penghulu cannot cite the Malayo-
Polynesian law of the Christian Javanese he will be equally unsuitable
to act as an adviser on the very same Malayo-Polynesian law of the
[32] Moslem Javanese. But what happened? In 1848, no provision
was made for an adviser for Christian natives, and the regulations
II The Elements of Adat Law 19

of the Outer Provinces never introduced one; in 1891, the conflict

between section 7 and some other sections of the legislation was
decided in favour of the omission of an adviser for Christian natives
(ISb. 1891, no. 230).
(--)
Are these Christian natives then without any adat law on which advice
should be obtained? Or are government courts so well-informed that
advice would be superfluous? But then, is not three-quarters of the
adat law of these natives exactly the same as that of their Moslem
compatriots on which the judge is supposed to be so ill-informed?
The omission can only be explained by the legislator's assumption
that the law for Moslems is Islamic law, a law which, obviously,
cannot provide for Christian natives; and that for this reason the
adviser on the law of Moslem natives must be unsuitable as an adviser
in respect of Christian natives.
After all this, little more need be said about advisers on the adat
law of foreign orientals, because here the same misconception is
repeated. Before 1901, it was doubtful whether section 7 prescribed
a Chinese headman or a Moslem scripturist [ulama] as an adviser on
Moslem Chinese. In 1901 this question was settled in favour of the
Moslem scripturist; and, if one considers that Moslem Chinese easily
tend to identify themselves with Moslem natives, this may probably be
regarded as a wrongly based conclusion. For Christian Chinese
(assuming these are still to be classed as foreign orientals, see p. 17
above) no adviser has been required since 1891. As regards Moslem
Arabs (in eleven of the Outer Provinces where the European law
of property at present does not apply to all foreign orientals, and
where this point may therefore be of relevance) a Moslem scriptutist
is the adviser, also in matters (law of property, etc.) not strongly
affected by Islamic law. For Christian Arabs no adviser was required
[33] from as early as 1848. For other Moslem foreign orientals (-)
a Moslem religious functionary or a reputed scriptutist acts as adviser.
So here, too, adat law and religious law have been muddled up.
Is there then no use at all for an adviser on Moslem law? He will
conceivably be useful in two cases. First, if Moslem law is applicable,
but the matter cannot be taken to a Moslem religious court ('council
of priests', etc.) simply because sub-section 78(2) of the Regerings-
reglement requires both parties to be either natives or foreign orientals
of one kind. In accordance with sub-section 78(1) the dispute must
then come before a govemment court, which has to apply Moslem
20 Van Vollenhoven on Indonesian Adat Law

law as given by the Moslem adviser (-). Secondly, if a question

of Moslem law crops up in a government court: for instance, whether
someone is an heir under Islamic law (unless it is assumed that such
a question should be referred to a religious court); or whether, within
the period of recall, a repudiated wife is still a spouse for the purposes
of the section dealing with theft within the family.Sl Except on these
rare occasions advice on Moslem law serves no purpose.
The existing legislation therefore gives practitioners ample excuse
for the fact that so many of them have come to have a wrong con-
ception of the elements of adat law.
On the other band, it would be incorrect to assume that the priority
given to religious law, and the identification of it with adat law, has
always resulted from an inadvertent mistake, misconception or error.
Honesty requires that the name be mentioned of the man who has
defended the viewpoint disputed here with scholarly conviction, and
who has expressed his conviction in a series of articles. He is
Mr L. W. C. van den Berg (-), from 1878 to 1887 adviser to the
[34] Government of the Indies on Orientallanguages and Islamic law,
from 1887 to 1900 professor at the Indological Institute at Delft, and
since 1902 adviser on legislative matters to the Department of Colonial
Affairs (-). His doctrine is the theory of a receptio in complexu of
Hindu law by Hindus, of Moslem law by Moslems, and of Christian
law (insofar as it exists) by Christians. According to this doctrine,
the law of the natives (and foreign orientals) is conditioned by their
religion until the contrary is proved, because by accepting a religion
they also 'virtually' accept its religious law. If the contrary or
'exception' is proved for one or more subjects (whole institutions or
merely subordinate points), such exceptions should be regarded as
'deviations' from a religious law which has been accepted in com-
plexu. The faunder of this doctrine thinks that his willingness to admit
such counter-evidence proves his 'open mind' and his 'unbiased
appreciation' for the 'national sense of justice of the Queen's dark-
skinned subjects'. In other words, the adat law of the natives (and
foreign orientals) in the Indies is not shaped by the indigenous law
with occasional intrusions in the form of fragments of religious law,
but, to the contrary, by religious law plus deviations! According to
the faunder of this doctrine, it is 'not even difficult also to point to
parts of the Indies where, as the result of extraordinary circumstances,
Islam has been almost fully, if not entirely, accepted' (1884:151).3 2
[35] (-) Van den Berg has discussed the reception of Hindu law
II The Elements of Adat Law 21

particularly at the beginning of bis treatise on Indonesian cornmunities

in Java and Madura (1901a:l-140).
The reception of Islamic law has been worked out in [several of
bis papers 33 the first of] which is a perfect example of a receptio
consisting of deviations only.
Finally, it seems that the reception of the Christian law must be
understood in the surprising sense that Roman Catholic natives
accepted canon law but Protestant natives a vacuum (there being
no Reformed religious law) - which vacuum may as well be filled
therefore with Roman-Dutch law (1887:53). This vexing reception
appears to have been denied the benefit of further elucidation.
I t may now be asked on what grounds the religious law has been
accepted, in these writings, as the 'key-note'. It is based on the
author's gratuitous assumption that certain crude similarities, for
example, regarding village institutions, or rates of interest, can only
be explained as derivations from some religious school-law. Or he
assumes that certain categories of Islamic prescriptions, for example,
the general principles of the law of obligations, or the rules goveming
the nature, requirements and consequences of particular contracts,
'have virtually penetrated the legal consciousness of the people'
(1897:94). The answer to the question of why indigenous law may
be ignored, even though it remains active, seems to be that such
deviations from Islam do indeed occur, but do not 'result from a
different sense of justice', 34 or are 'a product of individual arbitrariness
or ignorance' (1892:455). And should one ask what remains of this
reception doctrine with respect to the countless aspects of which even
[36] the author hirnself cannot deny that 'reception with deviations'
is evidenced by deviations only, one would only leam that adat law
is strikingly similar to Islam in all those major principles - a subject's
obedience to bis sovereign, no contract without consensus, and so on -
which, as it happens, are the same here, there and everywhere (-).
This supposition, according to which ancient indigenous legal usages
are 'deviations' from a much younger Islam, finds its most amusing
parallel in the habit Moslem sages have of labelling as innovations
(Arabic: bidcah, pl. bidac) (-) old-Arabic practices which survived
Islam. Certain Moslem (above, p. 12) or Hindu words (e.g. dera,
territory, associated with the Javanese desa, village) which have
become fashionable sometimes serve the purpose of the reception
theory. Well considered, however, they no more prove the operation
of the religious law than the use of litterae patentes, Concordia res
22 Van Vollenhoven on Indonesian Adat Law

parvae crescunt, and armamentarium Hollandiae proves Roman in-

fluence on the Dutch Republic.
It should further be noted that this theoretical structure has two
other peculiarities. First, it is wholly framed in the style of Justinian:
just as the legists of the late Middle Ages (and after) squeezed our
common law into the matrix of Roman law, so the completely un-
suitable form of Justinian's and the French codes has been chosen as
the only conceivable frame for 'juridical construction'. And secondly,
out of 'sloth and sheer idolatry of law books' (Snouck Hurgronje,
1893: 19), the material for the indigenous law has largely been lifted
from native codes and law books such as Der Kinderen used to
flourish, from princely edicts or legal treatises which introduce or
recommend new rules rather than describe the existing adat, that is,
from books which usually had only a very limited and ephemeral
influence on the living adat law, or no influence at all.
[37] The result of this theory of reception, of this Roman
systematization, and of this trust in native law books, is that adat law,
as construed by Van den Berg, is worlds apart from real adat law, and
there is no shadow of doubt that no Indonesian would recognize his
own law in this construction.
But the reception theory has repeatedly - one might say, every-
where - been disputed and refuted, in particular by Snouck Hur-
gronje, Piepers, Nederburgh, Bergsma (of the agrarian investigation in
Java), Van der Lith, and, in passing, by Van Ossenbruggen and the
American scholar Clive Day.35
A subsequent effort by Van den Berg (1897: 83-84 n) to explain
away the difference in principle between his ideas and those of his
opponents - a difference which, in the beginning, he considered to
be 'of great importance' (1895:309) - naturally missed the aim (-).

If the purport of this chapter on the elements of adat law had to be

summed up in a few words, it would be this: the vast bulk of adat law
is still the indigenous Malayo-Polynesian law, and there is a question
of religious elements only in the areas, for the issues, and in the
measure in which this law has been changed or replaced by Hinduism,
Islam or Christianity.
There is, however, a final warning: sometimes, and then in entirely
different ways, religion may have exercised a profound influence on
the adat law of natives or foreign orientals. A Dayak of Borneo who
embraces Islam will for this reason be accepted as a Malay by the
II The Elements of Adat Law 23

Moslem Malays of this island, though they may have not a drop of
blood in common; and as a consequence he will sooner or later become
[ 38] subject to their adat law. A Chinese in the Indies who becomes
Moslem will for this reason be absorbed into native society - regard-
less of whether his kin have been living for generations in the
archipelago or whether he has freshly arrived from his horneland -
and after a generation many will be ignorant of his origin. He comes
gradually under the sway of the adat law of the natives, or at least, he
drifts in many respects away from the law of his compatriots. The
Mission in northem Halmahera, by managing to bring the roving
population into villages to facilitate evangelization and education,36
has thereby made a great change in their life and created new legal
needs.
A Christianity that 'cometh not with observation' * may also in the
archipelago gradually bring about the renovation of law which Fustel
de Coulanges so strikingly described in the fifth book of his Cite
antique. And yet even in these instances the constituent parts of adat
law do not make way for religion; religion is, however, one of the
factors determining the kind of community to which a person belongs,
or the conditions of life and the impulses at work in it.

* [Cf. Luke 17:20-21, King James Version.J

 CHAPTER III

THE STUDY OF ADAT LAW

[June, 1907]

Tandem bona causa triumphat

[65] It would have been of incalculable value to us if, in our earliest
posscssions in the Indies - the Moluccas, Java, the coastal areas of
westem Sumatra - the field of adat law had been reconnoitred and
recorded when it had still hardly been maimed or influenced by
European rule, for this would have benefited our understanding of
present-day adat Jaw and our knowledge of the old adat law. Adat law
is not, as has been assumed only too often by Europeans, something
immutable, though changes in it are not normally visible within the
period of observation granted to a single observer. On the contrary,
it has been confirmed from various sources that 'local usage ...
gradually adjusts itself to changing needs' (Snouck Hurgronje, 1894:
353); that the adat 'changes with the generations', and remains static
'for hardly a single moment' (1893:9-10); that 'the passage of time
and contact with neighbouring peoples make deep inroads upon it'
(Willer, 1846:6); and that 'however invariable the character of adat
law may appear to be, it does in fact adjust itself to changing
conditions, though gradually, and therefore slowly, with the result
that this [process] almost escapes observation, unless suddenly an
opportunity presents itself to cast an eye upon the situation of a
century ago' (Liefrinck, 1890:338). It is therefore a fallacy to assume
that the 'native adat is an unebanging whole, not subject to the
laws of history' (Bb. 5941/1902). The sophisticated Indonesian is
[66] aware of this gradual change, and among the Minangkabau
- according to information from Van Ophuysen - an adat maxim
(papatah) says:
Sakali air [aie] gadang, sakali tapian baranjak,
Sakali rajo baganti, sakali adat [adaik] barubah.
If the river is in spate, the washing place is shifted,
With a change of rajah comes a change of adat.
111 The Study of Adat Law 25

Knowledge of the adat of olden times might therefore have been of

great value to us, but the material is extremely scanty. Here and there
an odd piece can be found, such as Padt-brugge's description of the
usages and customs of the Alfur in Menado (1679), the report by
Rothenbühler on conditions in the region of Surabaya (1812), and
others like these; for the rest accounts of travels can be consulted,
and historical accounts. But the harvest is far from rich. On the history
itself of adat law nothing or hardly anything has ever been written.
He who seeks to find out about the history and development of this
law will have to be satisfied mainly with the legal rudiments which
have survived as archaic relics to the present day, or must rely on
comparisons with what is nowadays found in less developed areas.
But even our knowledge of the present state of Indonesian adat
law is poor. Hence the numerous reputed jurists - especially in Java
- who on the basis of their experience blithely maintain that such
a thing as adat law, at least of the indigenous population, exists only
in the imagination of a few interested people. This verdict need not,
in itself, be taken as a serious reproach. After all, the study of
indigenous languages, too, is scarcely a century old; and many of
these languages have hardly been explored. How then could one
explore the adat law of a people whose language or dialect has not
really been mastered? However excusable this neglect, it is none the
less dangerous, especially because here, if anywhere, unknown means
unloved. Until recently it was taken for granted by jurists in Holland
[67] and the Indies that, if the law of the natives or foreign orientals
had tobe improved, it should be replaced by western law- the only
genuine law. The whole attitude of [the parliamentarian] Kappeyne
during the discussions on the [proposed] cultuurwet 1 is one of
insistence that that homely collection of adat rules, which even upon
examination would remain obscure and unknown, be exchanged for
the pure and sound rules of Roman law and of our present private
law, rules which have 'stood up to the test of centuries' and which
'are the joy and practice ground of the most eminent intellects'.2 [In
the debates on the agrarian bill in 1868] Minister Oe Waal, recalling
the opinion of Van den Bosch [1832] that the positive European law
should not be regarded as the only expression of equity and justice,
ascribed to the legislation of 1848 and 1855 a 'somewhat contrary
tendency'. According to him, therefore, the native to whom the
Eurcpean law is made applicable, or who voluntarily subjects hirnself
to it, would thereby acquire 'a better private law' (BI. 1868-69: 1044f.).
 26 Van Vollenhoven on Indonesian Adat Law

A few years later again, in 1871, the government of the Indies Iet it
be known (Bb. 2491) that, according to the spirit and Ietter of
section 75 of the Regeringsreglement [1854], the European private
law is 'the standard and measure of law', 'not only for Europeans but
also for the indigenous population'. In 1873, advisers to the Nether-
lands Indies government thought up a plan (foiled by the Governor-
General and the Supreme Court) to prepare the whole of the European
civillaw to fit the native population (BI. 1904-5, 121(4) and (9)).
De Lauter, in the fourth (1895) and subsequent editions of his
manual on constitutional and administrative law, writes that, 'Legal
uncertainty (in the Indies) can only be removed by a cautious but
steady extension of the rule of European law'. (-) And as late as
1901, one of the contributors to the journal RNI (Hubregtse 1901:
482f.) stated that in the Indies the European law reflects what the
legislator hirnself 'regards as the law', while adat law represents only
the permissible exception, based on a strict interpretation and tolerated
only until such 'concession' can be withdrawn 'without serious
[68] objection'. Who can hope to find among such people the con-
viction that adat law is worth studying, that it is virile and capable
of future development? We are rather reminded of the un-linguistic
trend- repeatedly revealed in the Staatsblad [Gazette] of the Indies,
especially in the old issues - to have all indigenous languages con-
veniently replaced by Dutch or Malay, or preferably kitchen-Malay!
The inference to be drawn from these remarks should be clear.
Whether adat law serves a useful purpose or may ultimately become
useless, or whether European law meets or will meet the requirements
of the natives, are questions we have not yet considered. We have
only pointed out that people ignorant of adat law have time and again,
and without using any standard of comparison, arrived at the pre-
conceived conclusion that only European law could be fully-fledged
law, and that adat law must of necessity be inadequate and inferior.
Probably the greatest progress lately made in the field of adat law
is the realization of how much the usefulness of western lawyers' law
depends on time, area, and people; how, for instance, the Minangkabau
of the Parlang highlands, prosperaus under their adat law, could be
reduced to poverty under European law. Savigny taught this a lang
time ago, but the lesson seems to have been forgotten. Why? Snouck
Hurgronje expressed it strikingly (1886a:98-101): like the theologians
of the past, who did not Iook for the substance and history of the
various religions but instead sought the right and true religion, the
111 The Study of Adat Law 27

jurists did not Iook for the substance and history of the various legal
systems but instead sought the right law, the perfect law. Obviously
this law could not be far removed from the only two legal systems
they knew: the jus romanum and jus hodiernum. It follows that adat
law could be disposed of with the dogma that, however meritorious
it may once have been, it no Ionger fitted into 'the framewerk of
requirements of our time'.
But now a missionary who, without knowledge or investigation,
[69] summarily demands 'the Dutch laws of inheritance, land owner-
ship etc., etc.' for the Minahasa, is told by Carpentier Alting (1902:46)
that he 'shows evidence of having learnt extraordinarily little about
the adat law prevailing in the Minahasa'. Fifteen years ago he would
probably have ranked as a sound adviser.
To whom do we owe this change of attitude? Should the name be
desired of the first person who strongly advocated and stimulated
the study of adat law, it would be Van der Lith, a professor at the
University of Leiden who, in 1882, published a valuable paper on the
attitude of the colonial legislator towards European and native legal
concepts (Van der Lith, 1882: 193-242). But deeds are even better
than words, and when speaking of deeds, two other names must be
mentioned. Wilken (1847-1891, see Enc. N.l.), with his undisguised
preference for topics of ethnological jurisprudence, directly served the
cause of adat law by his careful arrangement of data on indigenous
adat law in several of the Outer Provinces (especially Sumatra and
the Moluccas). His premature death has been an irreparable loss.
Snouck Hurgronje [1857-1936, see Van Vollenhoven, 1928] has done
equally essential but far more difficult work, both in his invaluable
assessment of the significance of Islam in lndonesian life and popular
law, and through his revealing publications on the customary law of
the Acehnese and Gayonese. The value of his work can to some extent
be appreciated when one inquires how many Hallanders would have
been able to understand and describe so thoroughly community life
and Christianity among the fisherrneo of Noordwijk or the farmers of
Brabant, or life and religion in the Jewish quarters of Amsterdam.
It is a work in which the artist's gift of identifying hirnself with alien
conceptions and modes of life is as clearly expressed as in the most
forceful writings of Zola.
At that time, and earlier, officials in the Indies administration
(Wilken originally was one of them) and others did contribute to our
knowledge of adat law, for example Van Bloemen Waanders, Koore-
28 Van Vollenhoven on lndonesian Adat Law

man, Riede! and Liefrinck. But Wilken and Snouck Hurgronje mark
the beginning of the era of deliberate and scientific exploration. They
found fellow-workers and followers both among those who, like
Neumann, De Waal van Anckeveen and Van Eerde, wrote from per-
sonal observation; and those who, like Brandes, Hazeu and Rouffaer,
[70] worked from books and documents. But what about [academi-
cally trained] lawyers? There were the observations in the field by
Van Bosse (Minangkabau) and Carpentier Alting (Minahasa). Fromberg
could be mentioned for his sturlies of published data on the Chinese
in Java; Van Ossenbruggen for comparative jurisprudence gleaned
from books; and Nederburgh for introductory work. Van den Berg has
already been mentioned (pp. 20-22). But with these five names, the
Iist of those who published their knowledge is complete. And this
while so many fields lie ready to be harvested, while it is of immediate
practical importance to lawyers in the Indies to collect information
on adat law; and while Islamic and westem law are known to be
on the watch for suitable opportunities to swallow even more slices
of indigenous law!
How can this mental lethargy be explained? lt is not enough to
say that many lawyers are overwhelmed with work; for those who
did manage to find time for other things rarely devoted it to adat law.
The first explanation lies in the · calamitous notion of old that the
adat law of the Moslem natives (90 % of the population in the Indies)
consists of 'Islam plus deviations' (Chapter II), of which Islamic
school-law represents the proper and important rule, and local legal
usage only the unseemly and wild-growing exception. Even the
professor who attacked this heresy in 1882, did not teach his students
Indonesian adat law, but Islamic law. {-) Only very few went so
far as to study the indigenous law of the Indonesians or the popular
law of the foreign orientals on their own initiative.
But the real reason lies deeper. I t is to be found in the circumstance
that it is possible to become a 'doctor of laws' by knowing much
about 'the two legal systems' (present-day Dutch law and the private
law of Justinian), but without an inkling that law is a historical
phenomenon, with countless complexions, and developing according
to certain rules. In several of our universities even Roman private law
and general jurisprudence are taught solely as preliminaries to the
study of present-day Dutch law, so that even this opportunity of
[71] acquiring a historical perspective of law is lost. The result is that
legal specialists of all descriptions, company Iiquidators, defence coun-
111 fhe Study of Adat Law 29

sei, and so on, though graduated, still have no idea of or interest in the
study of anything other than a refined law like that of western Europe.
After the merciless though understandable reproaches by Snouck Hur-
gronje (1886a: 101f.), Van Ossenbruggen (1902:6n, 73n) and Steinmetz
(1903:1225f.), we can only hope that within reasonable time at least
one of the chairs of law in the Dutch universities not devoted to
present-day law will be converted into a chair for comparative law,
and that in due course this subject may become part of the regular
curriculum (-). The worship of modern law and the identification of
the science of law with practitioner's know-how, will then soon
enough die a natural death.
Is this field still unexplored and unreclaimed? Fortunately not.
Especially during the past thirty years much has been done by the
so-called ethnological-juridical school in the way of preparation for
a genuine historical and comparative science of law.
Post and Morgan may be mentioned as the pioneers of this school.
While the former in his earlier writings since 1872, for instance, his
Bausteine für eine allgemeine Rechtswissenschaft ( 1880-81), still
appears to display the colourful variety of customs and legal usages
in a purely ethnographic fashion, Morgan in his Ancient Society (1878)
more clearly reveals the ethnological aim of showing that the evolution
of law and custom is related to successive stages of human progress,
from savagery to civilization. In later years, Post (in his Grundriss der
ethnologischen Jurisprudenz, two vols., 1894-95) has tried to build a
framework within and araund which the legal history of less developed
societies could be fitted by means of monographic investigations.
[72] Kahler, particularly through his numerous articles in the Zeit-
schrift für vergleichende Rechtswissenschaft (since 1878) has helped
to supply, systematize and arrange information. (-)
As a foliower of this school in the Indies, Wilken must be mentioned
first - see his inaugural address on the usefulness of ethnological
sturlies for comparative jurisprudence (1885) and the peroration at
the end of his comparison of oriental and western legal concepts
(1888: 138-40). Among the younger adepts there is, as regards adat
law in the Indies, Van Ossenbruggen, who has distinguished hirnself
with his sturlies of testate succession and guardianship (1902), of the
Chinese law of inheritance ( 1904) and of primitive concepts of land
ownership (1905).
What is this school and what are its aims? It is, though in a manner
different from the historical school which preceded it, a reaction
 30 Van Vollenhoven on Indonesian Adat Law

against the tyranny of lawyers' law. lt aims at research into indigenous

law, such as that of the aborigines of Africa, America, Polynesia,
India, Japan, etc., which is still extant but which is in danger of
degenerating and disappearing, and it wants this research to be done
in conjunction with an effort to reconstruct the popular law of the
misty past of such peoples as the ancient Egyptians, Greeks, Arabians
and Teutons. lt needs this research if it is to discover the line of
legal development in the past and present. lt could then put forward
another conception of law than the rationalistic interpretation of code-
minded lawyers, the dominant majority of whom seek to ascribe
everything solely to the conscious human will. The new view, on
the one hand, sees law as having been to a large extent grown un-
consciously, and, on the other, draws special attention to trends of
social development additional to the lines of national development
already indicated by the historical school.
It can be seen at a glance that the ethno-jurists' field of study, with
its archaeological border provinces, does not come anywhere near to
coverlog the entire realm of jurisprudence even when the field of
study of the code-minded lawyers is added to it. For there is history
and a course of development in various kinds of law which not only
fall outside our legal codes, but outside ethnological Iaw. The whole
of the medieval and pre-modern law of Europe; the law of England,
[73] the United States, and South Africa, with their striking courses
of development; and particularly also international constitutional law
(half of the Law of Nations), the growth of which is equally remark-
able. The historical study of this kind of law - a rich effort which
deserves all praise - has usually been confined to Statements of
historical facts, and has but seldom matured to the point of exposing
a process of development. Judging from the flimsiness of Meili's
partial effort (1898) to make an 'inventory' of the Iiterature on the
divergent present-day legal systems and their provisions concerning
private law, the time is not yet ripe for a preliminary review of all
law that exists, or has existed, on earth. Nevertheless, it should
be kept in mind that the science of law is not the study of isolated
bits and pieces, but the comprehensive and comparative historico-
geographical study of alllaw, old and new.
Meanwhile, Indonesian adat Iaw lies precisely within the field of
study chosen by the ethnological school. We may therefore, without
answerlog the question of whether this school meets all the require-
ments for the study of law, take a closer Iook at its merits and
111 The Study of Adat Law 31

shortcomings to date, which also determine the value, or Iack of

value, it has for the study of our adat law.
Its merits are immediately evident. In the first place, it provides
a miscellany (-) of everything under the sun that may serve its
purpose. Considering nothing too insignificant, it gathers material by
the armful. Further, it already brings some order in this jumble, either
by sorting out the law of the lower and higher species of jural com-
munities (kin communities, territorial communities, principalities, etc.),
or by artanging the material according to subjects (inheritance, criminal
law, etc.). Finally, through what it exposes in connexion with primitive
laws of kinship and marriages, and the emergence of monarchical
forms of government, etc., it makes highly necessary corrections in
the legal picture conveyed by ordinary biblical history, in which the
family life of the patriarchs, the origin of the thirteen tribes, the king-
ship of Saul, are described as modern matters draped in an ancient
cloak.
[74] And yet, however significant and evident the merits of the
ethnological school, its shortcomings tend to make one say: our thanks
for what you have brought, but from now on we must find an-
other way.
Its first fault is to be uncritical of its material. This, obviously,
largely depends on the particular worker. Wilken, for instance, makes
at most only cautious use of the vague tales told by casual travellers,
but even he fails to sort out ripe and unripe in his hunger for in-
formation. A man like Kohler, on the other hand, in spite of his great
merits, shows so little self-discipline that, when Snouck Hurgronje
points out to him (1886a; 1886b) that he has used the wrong data
for the law of Islam, he recklessly counter-attacks (Kohler, 1886;
1887), and even nineteen years later (1905) castigates, the man who
dared to know better. But although the magnitude of this shortcoming
may depend on personal factors, the fault itself is inevitable in a
school that wants to collect material from all parts of the globe
simultaneously, not only to store what is being found, but to draw
striking parallels immediately.
A second fault, which again results from casting the net too wide,
is that of hopelessly mixing up living law and school-law. Even the
pioneers refer time and again to Hindu and Moslem law without
sifting out absorbed elements of Iiving old-Indian or old-Arabic law
and casting aside what is merely dead school-law. In the same
amateurish manner, Ezra's Code (from the Pentateuch) or the Code
32 Van Vollenhoven on Indonesian Adat Law

of Harnmurabi have been cited as the living law of ancient times.

Even fragments of biblical stories, for example Ruth, or parts of
Genesis, are offered as evidence about the time in which they are
supposed to have taken place; or Leist's hypothetical descriptions of
so-called old-Aryan law are used as sources of ancient popular law.
A third weakness is one which so easily occurs with superficial
knowledge, i.e. similarities and parallels are discovered which, upon
[75] closer examination, exist hardly or not at all. It is not unusual
for the authors of the ethnological school to accuse one another of
this weakness, but each suffers from it. The most serious error in this
respect is the supposition that everywhere development has been
substantially uniform. For instance, territorial communities (district,
village) are made to succeed genealogical communities (clans, etc.) and
the centralized state (principality, etc.) is supposed to have succeeded
the territorial community. But who guarantees that this sequence
which, perhaps, the Jews, Romans or Germans have experienced, is
to be found everywhere? The development of kingdoms out of terri-
torial communities, for instance, finds no support in the Indonesian
archipelago: here we found, or find, either foreign kingdoms (the
Hindu states in Java or in highly developed Bali), or genuine in-
digenous principalities (e.g. in the Bataklands and among the Minang-
kabau and Timorese) which, however, show less resistance and virility
than the foreign states.
And the final weakness of these authors is their uncontrollable
urge to trust their wings too early. They immediately want to know
the origin, the explanation and the relationships of the observed
phenomena, and Darwinian slogans serve them as passwords. Infant
sciences like sociology (-), comparative ethnology, and even socio-
ethnology, are lifted from their cots and taken out of their diapers
to help build a castle-in-the-air overnight. Nobody ever seems to have
heard of an ars nesciendi.
The result of all this is anybody's guess. The opus as a whole is
praised by many. But experts on specific aspects of law repeatedly
report that, on their particular subject, the conclusions of the ethno-
logical school are either worthless or unreliable. Among other things
it must be noted that in its jurisprudential revelations this school is
too much inclined to neglect what should have been a cardinal aspect:
the particular composition, shape and frame of the legal rules, and
the matrix in which they fit at a certain time and in a certain area.
In Post's Grundriss, as well as in Meili's work, it is in particular
111 The Study of Adat Law 33

this framework that is poor. As a result of this deficiency these books

[76] will never provide the scientific cadre for which their authors
had hoped.
How then can matters be improved? Taking Post's Grundriss one
will find that the phenomena of ethnological law are mentioned in
the text, while footnotes point out how these phenomena occur among
the most widely dispersed races and areas. lt is explained that in the
field of law, as everywhere else, the same conditions produce the
same results. Imagine such a method in philology or theology! All
people equipped with the same speaking apparatus of identical physio-
logical construction, all people equipped with an identical thinking
apparatus; hence, all linguistic and religious phenomena a priori
geared into identical connexions and relations. Is this the way it is
done in these sciences, which in the nineteenth century have made
so much greater strides than our science of law? Do these scholars
forget, for instance, that the change from one sound to another can
result from a variety of causes, and that a striking similarity of
linguistic forms, found in different language families, does not yet
warrant any conclusion about their historical development?
I t may be argued that this is a lame comparison, because in
languages and religions the facts compel us to recognize wider or
smaller groupings: Indo-Germanic, Semitic, Malayo-Polynesian lan-
guages; Mesopotamian, Egyptian, Teutonic religions. But why should
the classification of legal systems be different? If it is impossible even
to-day to measure English constitutional, administrative and private
law with a continental gauge, what can this mean but that the English
law represents a distinctive law stock or law family? Must not some
legal systems have originated from the principle of mother-right, while
others show not a trace of it? The method, therefore, which is taken
for granted in studying languages and religions, seems equally obvious
for studying law. There is, furthermore, the consideration that one
can no more study the religion of a people without understanding its
language, than study its popular law without knowing the vemacular.
Wilken started to leam Arabic late in his life in order to investigate
[77] Arabic usages and customs. It has undoubtedly been of benefit
that at long last, after so many years, people have started with some
superficial collecting and classifying in the field of legal ethnology.
In the future, too, it will be necessary for each to keep in touch with
the work of others, and the task of summarizing findings must not be
neglected. Yet it would be wise - as Snouck Hurgronje pointed out
34 Van Vollenhoven on Indonesian Adat Law

to Kohler in 1886 - not to study the law of half or all the world,
but to concentrate on such law groups as one can command.
Who will indicate what these law groups are and determine this
'plan of selected areas'? There will be little objection to taking the
language groups as a starting point, although language groupings,
ethnic groupings and law groupings certainly need not coincide. The
adat law of Russia, of central Asia, of China, India, northwest Africa
(the Maghrib), central Africa, and of the Red Indians, etc., alongside
that of our archipelago, may then for the time being be regarded as
distinctive law groups. With regard to each of these law regions an
effort should be made to examine not only the state of adat law, but
also its historical growth and the nature of its distribution. Each
law region 3 (e.g. our archipelago) should be divided into a number
of law areas (e.g. southern Sumatra, Bali plus Lombok), and most of
these law areas again into law districts - each with its district law
or law dialects. And one should never presuppose that the shape and
development of law will be the same everywhere. In the one law
district or law area the course of law may have run from a to b to c, d,
and e, while in another it may have been from a to b to f, g and h;
in the one this flow may continue in a permanent bed, while in another
it may be doomed to run dry.
Does the law region indicated for our archipelago coincide with
what constitutes the Dutch East Indies? The term 'Indian archipelago'
usually has a wider connotation than this, and is therefore avoided
in the more recent ordinances (-). But the law region here referred
to certainly embraces, in addition to the Dutch East Indies, the Straits
Settlements, British Borneo, Portuguese Timor, the Philippine Islands;
and probably the whole of New Guinea (if, at least, Dutch New Guinea
may be considered to belong to this region); and it may perhaps also
[78] include Madagascar. The reason why, nevertheless, this study
will be confined to the Dutch East Indies is that the adat law must
be seen in conjunction with the rest of the law (above, p. 3), and
that at this stage it would make matters too difficult and complicated
if western influence and government law in the other colonies also
had to be considered.
lt can be seen how fine a thing the study of Indonesian adat law
becomes as a contribution to the comparative history of law on a
global scale. The Netherlands are also in this respect privileged by
their colonial possessions. The value of the study of adat law is there-
fore not restricted to its usefulness as regards legal practice and
III The Study of Adat Law 35

administration in the Indies. But it should also be noted that this

study would lose its attractiveness if the doctrine refuted in Chapter II
were to be accepted, and instead of searching for different law areas
one were to assume the presence of a single religious law (Islam) plus
a number of more or less significant deviations. It would then no
Ionger be a matter of principle to distinguish law areas in the
archipelago, or even to distinguish law groupings within the Islamic
(and Christian?) world over the five continents; there would then
be nothing left but to divide the law of our East Indies into four
parts: the law of the pagan, Hindu, Moslem and Christian areas.
In spite of what has been written above, it is unfortunately wrong
to assume that thirty years' activity by the ethnological school has
succeeded in destroying the fallacy that only modern law and the Code
of Justinian are of real value to the study of law and the administration
of justice in the Indies. (-)
[The knowledge of adat law is still very incomplete, and there is
but a poor understanding of its internal structure.]
[82] A half-dozen government measures seem to be desirable,
possible and opportune:
First: publication of materials which can be supplied from case
records in government and indigenous courts, but which often remain
undisclosed. Besides the scanty adat decisions which have been
published in the Indisch Weekblad van het Regt (from 1863) and Het
Regt in Nederlandsch-Indie (from 1849), important judgments known
[ 83] to no one but the parties concerned come to light every now
and then, sometimes quite accidentally (-). The more legal rulings
on adat law gain in significance as the result of better adat law studies
and fewer transfers of qualified judicial officers, the greater the benefit
of publication will be. For this reason the Secretary for Justice has
clone an excellent thing by proposing, in his circular Ietter of 9 August,
1904, to start a collection of adat decisions. Presumably no great
results can be expected in the first few years, but in the long run
- provided the Ietter is not filed and forgotten - it could be of
real value. (-)
Second: publication of such adat law material (preferably carefully
sorted out) as may be found in administrative reports and other papers
in govemment archives. (-) A dual purpose would be served if such
publications could be related to the Memories van Overgave 4 (-),
of which the journal of the [Dutch] Geographie Society gave the
most recent example (Schaap, 1907:28-56). If these Memories could
36 Van Vollenhoven on Indonesian Adat Law

be arranged in the form of regularly reprinted booklets, giving

[85] information on conditions, including adat law, in each region
- something along the lines of the district Gazetteers in British
India - not only science, but future administration, too, would
greatly benefit. But they would have to devote more attention to adat
law than their Indian models, which usually remain silent on this
point. lt would, at any rate, be of some use even if they only mentioned
where manuscripts with information on specified topics of adat law
are to be found.
Third: guidance to those who will come into contact with adat law,
in order that they may become sensitive to this law. For academically
qualified judges in the Indies, adat law has already been made a part
of the syllabus by the University Education Act of 1876. For future
administrative officers, however, the government appears to have
rejected this subject even in a new training scheme (-}, although
these officers willlater often have to do research into indigenous law,
especially in the Outer Provinces. For Indonesian members of the
judiciary the government has, in the bill providing for a Native Law
School at Batavia (BI. 1906-07, 178), recognized the value of this study
by a decision in favour of tuition in 'popular law, in particular Native
family law and inheritance, Native land rights and Native contracts'.
The 'education of juveniles in the manners and customs, laws and
religious concepts of the Javanese' (Plakaatboek XV: 295), which
Daendels seems to have favoured in 1808 (-), will probably find
no supporters. But no matter what comes of the proposed Native Law
School at Batavia, it would be no luxury if, in the three schools for
Indonesian administrative officials in Java, and in due time also in
the school for chiefs at Tondano (Minahasa) and in the training course
[86] at Fort De Kock [western Sumatra], the pupils were to be
given some idea of the adat law of the area in which their school is
situated; because at present their judicial diet consists only of the
principal chapters of the codified law for the Indies (Bb. 5516).
A knowledge of adat law would also be welcome to future missionaries,
if this could be fitted into their curriculum. (-)
Fourth: the government will have to regard researches into adat
law as part of the official duties of civil and judicial officers. Enough
remains to be done after the investigation into land rights in Java and
Madura and the similar, as yet incomplete, investigations in fourteen
of the twenty residendes of the Outer Provinces. Campletion of this
agrarian study, investigation of native forest rights in Java, continuation
III The Study of Adat Law 37

of the valuable research done by Carpentier Alting on native adat law

in the eastern archipelago - in short, wherever the right man for
the job can be found, the study of the adat law (as a whole or in
parts) must be undertaken if we do not wish to remain saddled for
ever with our present ignorance. (-)
But where should such an investigation be started, and how and
by whom?
Certainly not everywhere in the archipelago at once. An investigation
of one law area after another was already advocated in 1882 by
Van der Lith. (-)
[87] The selection should be made with care, for the choice of
the first areas is not unimportant. Adat law is, of course, purest, and
therefore most instructive and comprehensible at places where rule
by alien kings or governments and world religions have never pen-
etrated, and where the concentrations of people have remained small,
isolated and scattered. (-) That is, in areas like the heart of Borneo,
or the Toraja territory of central Celebes. The adat law of Minang-
kabau also deserves priority on account of its completeness and the
logical connexion of its components (Kooreman, 1901:145). In all
principalities it should always be remernbered that the adat law of
the population need certainly not be the same as that of their overlords.
Java, where adat law has been worse conserved than elsewhere as
the result of monarchical rule, our system of compulsory cultivation
and the administration of justice by European jurisprudents, seems
least desirable as a starting point. But considerations other than purely
scientific ones will probably also have to be taken into account in
selecting the first areas.
For the manner in which adat law should be investigated no general
rule can be laid down; but there are a number of warnings and
recommendations which may be of value for the whole archipelago.
To begin with, it would be wrong to expect a full knowledge of adat
law among the few educated Indonesians one chances to meet. Willer's
experience, described in his collection of Batak laws and institutions
is instructive:
'(I found) that the Battah, like all other native islanders, are
usually able to enumerate all the particulars of a case with the
most painstaking and circumstantial care, but hardly ever know
how to draw a general conclusion from a number of cases.
Further, no one nowadays knows the "whole" hadat, but infor-
mation on parts of it may be obtained from this or that person
38 Van Vollenhoven on Indonesian Adat Law

[88] insofar as tradition or his own experience had enabled him

to get acquainted with a particular aspect of it. Finally, many are
able, with regard to a recent incident, to explain the rules
applicable to it, but even the most proficient are unable to give
a complete exposition of any category of laws; on the contrary,
a great many well-documented examples are needed to throw
light on every point.' (1846:2f.).
What Willer found the time to write, conforms with the experience
of others who did not write it up.
A second difficulty is the urge, whether innocent or not, of in-
digenous adat experts to air their learning (above, p. 4; Snouck
Hurgronje, 1893:49f.). Often native chiefs will give a neat report on
adat law as it ought to be observed according to their own views. But
when asked whether it really happens in the way they say, they admit
that they have never witnessed a case Iike that. One should therefore
take care to ask what actually takes place in practice, and not how
it could or ought to be.
But even though the indigenous source of information may be
insufficient and erratic, one cannot do without it. Often research
becomes fruitful only when one has the good fortune to come across
capable and unsuspected people who provide the kind of information
on which - after careful testing and comparison - one can really
build. Snouck Hurgronje (1903:XII, XV) has done it this way for
the Gayo, Nieuwenhuis in Borneo (the old woman, Usun, in Tanjong
Karang), De Groot in South-China, Westenberg among the Karo-Batak
(the old man, Pa Pelita). lt should be mentioned here that the manual
for the regional welfare enquiry in Java and Madura (1904) states
on page 1 that it is 'very desirable' to hear what the common man
has to say, 'provided this is not done at public meetings', an advice
contrary tothat given by Van der Lith (1882:241), who recommended
getting the villagers together. Knowledge of the informants' colloquial
language is, of course, essential. Questionnaires with explanatory
examples will probably give a Iead in investigations, provided they
[89] avoid asking leading questions. By sending draft-papers on adat
law to local civil officers and judges, as was done with Wilken's essay
on family law and inheritance in Southern Sumatra (1891: 150f.), one
may prevent much adat knowledge remaining in the heads of these
officers without profit to others.
In all this research the effort must be made to understand and
describe adat law in such a way that the people themselves recognize
111 The Study of Adat Law 39

in it their own legal usages, without taking it for an alien juridical

concoction. One should, in particular, resist the urge to insist upon
technical precision, because only too often such precision, whether
on points of law or in native ideas about measurements and so on,
is really lacking (Snouck Hurgronje, 1903:318f.; 1893:282).
To whom should such research preferably be entrusted? To
academically qualified jurists - this is the main question - or to
administrative officers?
Jurists will be mistrusted. Western legalleaming, so it will be said,
is book knowledge, and primitive popular law is a far cry from this.
They will breathe into it Roman and westem wisdom, which here
becomes absurd (-). But would a similar argument be valid in
linguistics? - that the languages of Sangi or Toba 'do not belong to
the field of linguistics, because they have no supine, no aorist, no
state construct, no atmanepadam'? Of course not, because for linguists,
trained to detect significant features, with a sharp eye for lacunae and
with the ability to adduce comparative material, such expertise is
indispensable, particularly in these unexplored domains.
Admittedly jurists who are mere juris romani atque hodierni periti
are no better suited for the study of adat law than classically biased
philologists would be for such a linguistic study. But is this a reason
for disqualifying all legal scholars?
[90] The observance of prescribed rules and the operation of
sanctions require close attention; the various subjects must be system-
atized in such a way that no important aspects are neglected; there is
the relationship between adat law and govemment law, and the
discovery of striking parallels between the primitive law of the
archipelago and that of other places or of bygone times. There may
be noted philologists and ethnologists who can do this better than
many jurists, but this does not necessarily make it a philologist's task.
The recognition that this work, too, lies within the province of juris-
prudence is important, because it means that a qualified judicial
officer's need to know the vernacular will no Ionger be dictated only
by the desirability of following litigants and witnesses, but also by
the desirability of investigating the adat law of his area. The present
position is that in the very areas that are least explored, and therefore
of exemplary value for the study of adat law, no qualified judges have
yet been appointed. Here civil officers will therefore have to do the
spade-work, and for this reason some understanding of adat law and
its problems will be profitable to them.
40 Van Vollenhoven on Indonesian Adat Law

The four govemment measures recommended so far - collecting

adat decisions, publishing reports on adat law, extending tuition in adat
law, and directing adat research - will in themselves do a great deal
of good. But besides these, as a fifth measure, the appointment of
one or more adat trustees may and should be demanded, itinerant
officials for adat law, similar to those appointed for the study of
native languages. It is an appointment which was urged as far back
as 1886 by Nederburgh (IWR: 1209) and more recently by Steinmetz
(1903:1228). (-)
As a sixth and final measure, in order to string all this together,
we might follow the example of French India, where a Comite Con-
sultatif de furisprudence Indienne of nine indigenous members, seated
at the capital, Pondichery, has been appointed. 5 Their duty is to
[91] advise govemment and courts on the adat law of the (Malabar)
population, and to record this adat law. Their activities are revealed
in Les avis du Comite Consultatif de furisprudence Indienne avec
une preface et des notes, published in 1897 by the govemment printer
at Pondichery.
Our Govemment could do likewise, and establish an Adat Chamber
or a Commission for Adat Law at Batavia, which could assist in super-
vising the proposed adat law examinations, and in collecting and
publishing adat decisions and adat reports. Ultimately the Govemment
might then be able to create the kind of advisory service which it has
often needed, and which could provide the necessary guidance in a
research programme which will require a good many years.
 CHAPTER IV

LAW AREAS
[June, 1907]

[In this section Van Vollenhoven elaborates the concept of 'law areas'
(rechtskringen), the function and place of which in the systematic,
historical and comparative study of law, as he conceived it, he had
indicated earlier (p. 34, above).
The existence of significantly different patterns of adat law within
a distinctively Indonesian 'law region' (rechtsbekken) - which, he
believed, extended well beyond the Dutch East-Indian archipelago -
made it necessary for him not only to delineate geographic areas of
substantial legal homogeneity, but also to indicate the kind of criteria
on which he based these subdivisions. He considered that 'Linguistic
and ethnological similarities (-) do not yet warrant the expectation
of similar adat law; but they are nevertheless suggestive' (133). The
important thing, however, was to have a clear idea of what, in the
nature of adat law, constituted similarities or differences. Otherwise,
he feared, the situation might be thought to be the same as in western
Europe. 'In Warmond something may be punishable which has not
been made an offence in Voorschoten; in Germany other heirs are
recognized than in the Netherlands; Antwerp's municipal electoral
law differs from that of Rotterdam; but nevertheless all the law of
continental western Europe is largely patterned after the same
model' (134).
This could not be said of the Indonesian archipelago, where different
areas presented different problems of classification. Where it was
evident that in one part of the Indies rules of adat law applied which
were clearly different from those of a second or third area, these dif-
ferences could, of course, profitably serve as a basis for sorting out
the variety. Some territories - like those of the Minangkabau, the
Toraja, the Balinese - would then readily present themselves as
discrete law areas. In other cases, however, there were grounds for
hesitation, especially where colonization of one area from another
42 Van Vollenhoven on Indonesian Adat Law

(with a different adat law) had taken place. Should, for instance, the
Minangkabau colanies in Aceh, or the Balinese settlements in (Sasak)
Lombok, be regarded as discrete law areas? Or as extensions of their
home areas? Or as foreign enclaves in another law area? Moreover,
there remained certain islands and other peripheral areas of which
too little was known for their adat law to be identified with that of an
adjacent larger law area without danger of distorting the reality of the
situation. Finally, as regards some law areas - West Java as against
Central and East Java including Madura - there was little doubt that
to analyse them separately would bring out their distinctive features;
and yet it could not be denied that they had similarities sufficiently
important and numerous to justify their inclusion within one law area.
For almost a decade Van Vollenhoven had systematically and pain-
stakingly sifted the vast amount of historical, ethnological and other
materials available - for a good part unpublished and scattered - in
search of reliable adat law data. * The yield was uneven and often of
doubtful quality. But it did enable him to suggest, 'for the time being',
a division of the Indonesian archipelago into nineteen law areas (see
below).
Although he had thus established a basic cultural and geographical
framework for the comprehensive and comparative study of lndonesian
adat law,l Van Vollenhoven did not proceed immediately to cast his
successive area studies into this structure. Instead he devoted the
larger part of the section on law areas to a description of the charac-
teristic features of the four major types of indigenous community
which he thought to distinguish in the Indonesian law-scape, past and
present.
Van Vollenhoven was writing this part at a time when evolutionism
still preoccupied many scholarly minds, and though he firmly rejected
the idea that social institutions had developed unilineally he could
nevertheless not resist the temptation to dip occasionally into a hypo-
thetical past. Most of these passages have been excised from this
edition. Another matter of editorial concem is Van Vollenhoven's use
of stam in the sense of either 'clan' or 'tribe' (contrary to more recent
Dutch usage, which has freely adopted the ward clan as distinct from
stam which is reserved for tribe, he usually seems to imply the former

* [Chapter five of Van Vollenhoven's Adatrecht (Vol. 1:92-129; not reproduced

here) is devoted to a broad and systematic review of the written and un-
written sources of adat Iaw, and to a critical evaluation of the materials he
examined. - Ed.]
IV Law Areas 43

sense); and it is clear that his use of familie may reach beyond the
extended family of modern usage to denote 'lineage'. Where his
meaning appears tobe clear, modern usage has been substituted for his.
More important, however, is his introduction of two juridical
conceptions which, with their respective technical terminology -
rechtsgemeenschappen and beschikkingsrecht - were to become
methodological and conceptual cornerstones of his oeuvre, and of all
adat law studies that followed his lead.
He had already emphasized the importance of rechtsgemeenschappen
(lit. law communities) in his inaugurallecture at Leiden (1901), when
he argued that the problems of identifying the true nature and the
historical sources of law would be greatly eased if, in every instance,
first priority were to be given to analysing the structure of the com-
munity concerned. He never defined the concept strictly, but its
meaning is clear from the consistency of his usage. The term is here
rendered as 'jural communities', and technically refers to those (larger
and smaller) constituent corporate units of an organized indigenous
society which, in Van Vollenhoven's conception, derive their distinct,
legal autonomy in domestic affairs from the fact that each has a) its
discrete representative authority, and b) its discrete communal pro-
perty, especially land, over which it exercises control.*
The term beschikkingsrecht (Iit. 'right of disposal'), which poses a
semantic problern in Dutch as well as in English, is here rendered as
'right of avail'. 2 In Van Vollenhoven's conception it is the fundamental
right of a jural community freely to avail itself of and administer all
land, water and other resources within its territorial province (be-
schikkingsgebied, 'area of avail') for the benefit of its members, and
to the exclusion of outsiders, except those to whom it has extended
certain limited, and essentially temporary, privileges. The right of avail
is thus conceived also as the basic communal source of a whole range
of discrete and more or less individualized user rights, which are vested

• [In bis authoritative treatise on Indonesian adat law, Ter Haar defines
rechtsgemeenschappen as 'organized groups of permanent character having
their own authority and their own material and immaterial property' (1939:
14). The term has no exact equivalent in English. 'Autonomous community'
is the term used (though not quite consistently) by Hoebel and Schiller in
their English edition (1948) of Ter Haar's book. Though discrete intemal
autonomy (sovereignty pertaining only to the largest embracing polity) is
undoubtedly a crucial aspect, 'jural community' has been selected in the
present translation in order to convey the distinctive legal character of this
autonomy by which Van Vollenhoven sought to distinguish these communi-
ties from other, more or less cohesive, social groupings. - Ed.]
44 Van Vollenhoven on lndonesian Adat Law

in persons or groups by virtue of their membership of the commu-

nity.- Ed.]
(--)
[134] Although an accurate delimitation of the different law areas
can obviously only be made after adat law everywhere in the Indies
has been thoroughly investigated and evaluated, for the time being a
[135] division into nineteen such areas may be recommended:
1. Aceh (excluding the Gayo- and Alaslands)
2. The Gayo-, Alas-, and Bataklands
3. The Minangkabau territory
4. South Sumatra
5. The Malay territory, that is, the east coast of Sumatra (excluding
the Batak area) together with the Riau-Lingga archipelago, of
which the Malayan peninsula could be regarded as the British
moiety
6. Bangka and Belitung
7. Borneo excluding Serawak and North Borneo
8. The Minahasa
9. The territory of Gorontalo
10. South Celebes, together with the Buginese west coast of the
island.
11. The Toraja territory
12. The Ternate archipelago
13. Ambon and Moluccas (Seram, Buru, etc.)
14. Dutch New Guinea
15. Dutch Timor with its archipelago
16. Bali and Lombok
17. Central and East Java, with Madura
18. The central Javanese Principalities
19. West Java (Pasundan)
As said before, it would be wrong to assume that the difference
between these Indonesian law areas is confined to differences of rule
and precept within identical frames or patterns of law. On the con-
trary, it is the very frame or pattern itself which, time and again, shows
a different shape - though the difference is less than between Dutch
and English law, or Roman and Germanie law. This difference is
largely due to the diverse structures of the jural communities found in
the various parts of Indonesia, structures with which all other adat
law is inextricably bound up, an aspect that usually receives too
little attention. lt is true that cultural anthropology has revealed the
IV Law Areas 45

particular kinship structures of the various areas (divisions into tribes

or clans, families, households) and the set of rules by which they are
governed (collective or individual kinship relationship; matrilineal,
patrilineal, cognatic principles). But it is juridical science that must
ascertain the significance of these kinship groupings in terms of legal
authority. It must point out that the legal significance of the family
in Minahasa or Minangkabau territory is entirely different from that
of the family in Java; and that nowhere in Indonesian adat law does
the individual hausehold appear to have the status of an autonomaus
jural community. And jurisprudence must also find out what types of
territorially determined autonomaus communities exist to-day. Rules
of kinship are undoubtedly of great importance everywhere, but while
in some instances they come to the fore with the very first outline
sketch of the legal order, in other cases they are only of secondary
importance (-).
[136] The genuine jural communities can be divided into four
distinctive groups, but there is an urgent need for an accurate report
on their present state in Indonesia. (-)

1. Genealogical groupings
In some areas the only jural communities are genealogical groups,
based on and continued by descent from common ancestors. As far as
lndonesia is concerned the most elementary of these are of a hypo-
thetical character (-).
[137] (a) Of the existing types of Indonesian blood-communities the
first to be mentioned is the nomadic or sedentary clan or, in its stead,
the lineage, within which not families but individuals carry rights and
duties. Broadly speaking, legal authority - but only in the sense of
upholding the adat, since chiefs are here no more than the first among
equals - is vested in the clan or lineage authorities, no legal authority
being vested in the family or hausehold as such. Legal sanctions are
not confined to expulsion, but include other punishments as weil. The
clan or lineage is to a !arge extent responsible for its members' conduct.
Communal property still exists, but individual property is becoming
pre-eminent. Barter between individuals is already important, but has
a diminishing significance between clans or lineages. Marriage is a
purely individual matter. Only after their close relatives are dead do
children become a charge upon the clan or lineage. Adoption by the
clan is possible; but not by the family as it is not an autonomaus
46 Van Vollenhoven on Indonesian Adat Law

community. The rules of inheritance are most elementary. The ad-

ministration of justice with regard to individuals is in the hands of
the clan or lineage authorities. Taxation exists only in a most rudimen-
tary form.
The villages, in which such clan or lineage members are often found
living together, therefore do not constitute autonomaus groups but are
merely localities of common residence, because only the clan (lineage)
has a corporate legal existence. This contrast is insignificant when an
entire clan (lineage) is Iiving together as an exclusive unit under one
roof, as for instance among the Dayak; but it is evident where each
clan is distributed over a number of villages within its own territory;
or where clans are living together in such a manner that a given village
shelters people of different clans.
This structural form - i.e. the absence of any jural community
other than clan or Iineage - is found among the Gayo. There the
village (kampöng) is merely a place where families live together,
whether they belong to one or more than one clan. Neither the family
(sometimes called suku, kuru) nor the household has its own authority
or property, except in a purely domestic sense. (The territorial chiefs
and divisions in Gayoland are institutional oddments derived from
elsewhere.)
The same applies to the Dayak of the interior of Borneo. As a rule
each entire clan Iives in one long house (clan house, umä), in which
the families have their separate rooms. If there are homesteads which
merit the name of 'village', they are formed either by a clan house
with annexes or by a clan house with the dwellings of more or less
dependent squatters from other clans. As a rule, clans keep to them-
selves, even if they live in close proximity to each other. The headmen
of the clan houses appear to be the only local authorities.
Timor also seems to belong to this variant. Here the population
unit is the clan (fukun, under a clan head or tumukun) which, mingled
with other clans, occupies a certain territory. The clan here is dis-
persed over a number of villages and hamlets, but these villages
[139] (supervised by headmen, matas) are not, apparently, jural
communities. Various clans occupying the same territory are often
grouped together under one head, who is a representative of the
princely government; but these groupings have no local authority or
common property of their own.
(b) As a second variant may be mentioned the case in which the clan
itself, though well known and recognized as an institution, does not
IV Law Areas 47

function as a jural community. That function is fulfilled exclusively by

co-residing smaller groups of fellow clansmen, the clansmen's villages.
Thus - according to information from A. C. Kruyt - each of the
clans (e.g. To Pebato, To Lage) in the Toraja area lives in its own
territory (lemba), but legal authority rests with the groups of clansmen
living tagether in villages (lipu) under genealogical headmen (kabo-
senya). These communities have the right of avail (and common pro-
perty), and the spirit hause (lobo) here also serves as village council
hause. The clan territory comprises a number of such villages, but
there is no jural community superior to them, except in those areas
where chiefdoms and chiefs have emerged, such as those of Tojo,
Sausu, Parigi (-) and Luwu. Nor do families and households con-
stitute jural communities, although each is conscious of its own identity
(a single dwelling usually contains more than one household, and some-
times from ten to fourteen).
A similar situation is found in those parts of the Ternate achipelago
where the process of establishing village communities on a territorial
basis has not yet begun. Here, too - according to Hueting - the only
jural communities are the clansmen's villages (soa, hoana, soana, etc.)
with their temples (salu, ha/u, etc.; seri), each comprising fellow clans-
men under the control of genealogical headmen (elders: mahimo, etc.).
Smaller units, however, like the family and household, have no legal
authority. Nor do the clans themselves (e.g. the Tobaru, Loda, Galela,
Tobela) possess such authority, although it is common for closely
neighbouring clansmen's villages - here, too, clans have their own
territories - to be represented by one headman (sangaji), appointed
both to promote their local interest with the sultanate and to carry out
the sultan's instructions.
(c) Finally there is a third variant of genealogical community, in
which not only the clans (lineages) function as jural communities, but
[140] also their component families, within which, in turn, individual
members carry legal rights and duties. Even if no examples of this
variant were still to be found in the East Indies it would still deserve
mentioning, because the social order in both Minangkabau and Mina-
hasa (see section II, below) must have known it in the past. But
current examples do exist: on the islands of Buru and Seram the family
(etnate, soa) functions as a jural community above its individual
members; above the family is the clan (in Buru, fenna; in Seram,
amani) with its own territory; and above the clan, the confederation of
clans (in Buru, fugmolin).
48 Van Vollenhoven on Indonesian Adat Law

(d) Clansmen's villages with families functioning as jural com-

munities are apparently unknown.

2. Territorial and genealogical groupings

The second category exhibits as its main feature a territorial jural
community which embraces genealogical jural communities and their
individual members.
First comes the territorial unit in question, which may be a district
or a village, conceived not merely as a geographically defined area but
as an autonomaus legal body with goveming powers and common
property. Govemment rests with a territorial authority; the district
(village) owns property or has the right of avail over the community's
domain; and it can conduct legal transactions. Under the district or
village, the family is a distinctive jural grouping with similar features:
family authority, family property, family transactions, etc. A clear
example of this was formerly provided by the Minahasa (the pattem
is changing nowadays): at the top, the district (pakasaän, the territorial
tribe); next - and after the more recently ernerging village com-
munity - the family, ruled by its elders, with its family property, its
laws of adoption, guardianship and inheritance; and finally the indivi-
dual. Neither family branches nor single households are here corporate
units.
In part of the Ambonese law area (Ambon itself, but compare the
Kei Islands) the picture is that of families (dati; now rather meaning
'co-owners of land') within territorial villages, above which one may
sometimes find a confederation of villages. Similarly, according to
Hueting, in those parts of the Temate archipelago where the clans-
men's villages have fallen apart (though kinship ties are not forgotten),
property has become consolidated as family property, and a local
village authority has come into existence. In other words, the territorial
[141] village has developed here as a jural community, with families
(asal) as smaller jural communities under the control of their elders.
The family property or estate is here called pusaka.
The same picture is to be seen in Minangkabau. Here the list of jural
communities reads from below upwards: the family (buah paruik)
living tagether in one hause (rumah); the section of the clan (suku)
living in the one village; the territorial village itself (nagan), consisting
of two or more suku-sections; often, a federation of villages; and some-
times, finally, a confederation of village federations.
IV Law Areas 49

Some reports on Bali speak of family property and family lands, but
this is merely an abbreviated way of saying that members of a particu-
lar branch of a family are entitled to the profitable use of certain lands
belanging to a desa or village association (Liefrinck, 1890:410{.). The
family in Bali is no more a jural community than the hausehold
(kuren) is.
The converse of the above-described situation, that is, territorial
jural communities subordinate to genealogical communities, does not
occur. lt is, in fact, difficult to see how the greater unit could be held
tagether by ties of kinship if the lesser units were created purely on
the basis of common residence.

3. Territorial groupings without genealogical communities

To the third category belang the territorial jural communities
which do not have subordinate genealogical communities, but
whose constituent components are either subordinate territorial units
with their respective individual members or individuals with legal
capacity.
(a) In many regions of Java and elsewhere there are villages (known
by various indigenous terms), functioning as jural communities over
individuals with legal capacity. The function of the village, however,
still closely resembles that of the genealogical communities. Recruit-
ment and expulsion of members may still be significant matters for a
village authority; the village possesses landed property of considerable
importance, the use of which is not confined to the provision of
administrative facilities, such as council haUs, etc.; the village assumes
responsibility for orphans, has a right of inheritance, and is entitled
to abandoned property. The families in such villages, although re-
cognized as distinctive units, are merely kinship groupings and not
jural communities.
[142] The Javanese desa with a communal or mixed tenure of land
usually belongs to this category. The sametype also exists in the Batak-
lands. Unlike the suku-section in Minangkabau, that part of a Batak
clan (marga) which happens to live in a particular village is no Ionger
a jural entity with a distinctive authority and, perhaps, property of its
own - however important it may remain for an understanding of the
village structure. In the Bataklands the jural communities are: first,
the territorial village (huta, kuta); and often, above the village, the
federation of villages (partahian, urung). A similar situation exists in a
50 Van Vollenhoven on lndonesian Adat Law

large part of southem Sumatra, where the territorial village (dusun,

tiuh) is, or was, subordinate to the territorial village complex (marga,
mendapo, mega). Also the islands of Bangka and Belitung, as well as
the neighbouring Malay territory of eastem Sumatra, should apparently
be classified under this category.
This type of territorial jural community presents a peculiar variant
in south Celebes. The most important social grouping in this area is
the gaukang society. It is a group of people which was brought together
- according to native belief - by a gaukang, a fetish or relic of
miraculous power. Occupying a complex of villages and stretches of
land, it recognizes the authority of the custodian of the fetish as its
karaeng or arung. lf such miniature states - some of which are
completely disintegrated - happen to be loosely federated, the most
important among the custodians is often regarded as a 'regent' by our
administration (as distinct from the others, who are called galarang,
matowa, etc.), and supported by a sulewattang (a high-ranking execu-
tive) in the administration of his own little domain or of that of the
village confederation. Occasionally, however, such gaukang societies,
or confederations of little gaukang states, are tied together into a
firmly established political superstructure, a union, of which the states
of Gowa and Boni are illustrations. Intermediate forms between loose
federations and unions are also found.
It seems that in these little gaukang states neither the villages nor the
families constitute jural groupings with discrete authority and common
property. The population is largely dispersed; the subordinate head-
men are followers and counsellors of the 'regent' or of the galarang,
and are usually the heads of groups of villages originating from the
first gaukang settlements. The gaukang societies and the unions of
gaukang states are the only jural communities.
[143] (b) There are, however, areas where such territorial com-
munities function only in an administrative capacity, with little respon-
sibility in financial matters, and without right of inheritance or right
of guardianship, and without landed property of their own. A more or
less pure example of this is found in Aceh, where the jural communities
are the village (gampöng), the chiefdom, and sometimes the federation
of chiefdoms (sagi, etc.). Other examples occur in Madura, andin Java
in areas with individual land tenure where the village (desa; in the
Priangan highlands, kalurahan) is the only jural community.
The difference between types (a) and (b) in this category of territo-
rial communities is often blurred.
IV Law Areas 51

4. Voluntary corporate associations

Fourthly and finally must be mentioned - or at least noted for future
reference - the situation in which indigenous jural communities based
on contract between interested individuals coexist with any of the
three categories discussed above. Societies or associations of this kind
have as yet only rarely reached a state of maturity in indigenous law,
but they may ultimately become of great importance within the Indone-
sian legal order. They seem so far to have been found mainly in
different parts of Java (including perhaps Madura) and in Bali and
Lombok, though in Java they serve only a few customary needs instead
of a wide range of conceivable purposes. (-)
The Javanese adat associations are especially, if not exclusively,
concerned with mutual aid, particularly in connexion with the prepara-
tion of ritual feasts. They are called sinoman or arisan, and have their
own executives and property. The desa association (sekaha-desa) in
Bali and Lombok - the group of persons, with a discrete governing
body and common property, which constitutes the core-group of the
geographical desa - should probably be regarded rather as a natural
Balinese form of village settlement than as a voluntarily created society.
But the subak (irrigation) association may definitely be regarded as a
private society equipped with its own authority and property. Although
a product of private initiative, it nevertheless requires the sanction of
the local authorities, and is functionally as much a 'public utility
[144] corporation' as the water-corporations in Holland. There are,
however, in Bali countless other societies for utilitarian or recreational
purposes, or both (Liefrinck, 1886: 1038). Many if not all of these have
the character of minor jural communities, each with its own authority
and property. If for this reason it is suggested that, in this respect (as
in so many others), the Balinese law area appears tobe legally the most
developed, this is no undue derogation of the fact that in the Minahasa,
as in other Christian areas in Java and elsewhere, there are Christian
parish communities, for the vast majority of the latter have been
established under European influence. lt is, moreover, highly doubtful
if such parishes can be qualified as corporate associations (-).
In the preceding survey only casual reference has been made to monar-
chical forms of government, which established themselves over the
indigenous jural communities in Java, Sumatra, Borneo, Celebes and
elsewhere, but subsequently either faded away, or were replaced or
kept alive by our administration. Such monarchical rule (p. 32, above)
52 Van Vollenhoven on Indonesian Adat Law

has undoubtedly excercised a significant influence upon Indonesian

adat law. On the whole, however, it did not affect the social structure
of the indigenous jural communities, except in one, admittedly im-
portant, respect. Where a government displays the character of an
arbitral authority, the autonomy of the lower communities remains
largely untouched, for although it is equipped with powers trans-
cending the authority of the lower jural communities, it nevertheless
generally Iacks coercive power (or perhaps shows some other weak-
nesses). This is the position in Bali, and in some of the raia-states in
Minangkabau and Timor. If, however, such governments exert a more
powerful influence, the lower communities are often weighed down to
the extent of losing all or most of their autonomy, as has happened
under the pressure of certain Batak raia-states, the sultanate of the east
coast of Sumatra, the little states in south Celebes, and, especially, the
principalities in Java. Perhaps even Bangka and Belitung should be
mentioned in this connexion (-).

[145] If we now apply this classification of jural communities to the

nineteen law areas which we distinguished, the results are as follows:
- the genealogical structure is dominant in Dutch Borneo, the Toraja
territory of Celebes, Dutch New Guinea and West Timor;
- a partly genealogical, partly territorial structure prevails in the
Minangkabau and Minahasa;
- the territorial structure is dominant in Aceh, the Malayan territo-
ries, Bangka and Belitung, south Celebes, and the three law areas
comprising Java and Madura;
- a territorial structure with tendencies towards voluntary corporate
associations is found in Bali and Lombok;
- and each of the following law areas reveal a variety of these
structures: Gayo-, Alas- and Bataklands, south Sumatra, Gorontalo
etc., the Ambon area and the Ternate archipelago.
This classification is obviously not inconsistent with the fact that in
areas with a genealogical structure the needs of a territorial organisation
may already exist (e.g. the independent Dayak villages near the coastal
strip of Borneo); orthat there may be genealogical traces left in areas
with a territorial organisation. Nor can it be denied that, because the
transition from genealogical to territorial jural communities is almost
invariably a gradual process, it is sometimes impossible to draw a sharp
dividing line between the two.
(--)
IV Law Areas 53

[146] Before we conclude this outline, however, a waming should be

voiced against the belief that the adat law of the Indonesians differs
completely, not only from one of the nineteen law areas to another, but
even from one locality or village to another. If there were such endless
variety, it would indeed be a hopeless undertaking to investigate and
describe it, or possibly to accommodate it in legislation. Because of a
beneficent village autonomy various differences do occur from one
place to another, but only in minor aspects. Should one wish to know
the conditions of a contract of hire in Madura, one would find a good
many variations, but these concem such details as locally accepted time
limits. Should one wish to know the law of inheritance in Java, it
would be perfectly feasible to abstract from its great variety a common
denominator, because 'the law of inheritance is only seemingly wrapped
in as many covers as there are villages' (De Gelder, 1897, 11:307-13).
Those seeking an understanding of the law of kinship in south
Sumatra will, according to Wilken (1891: 153), indeed find a multitude
of different forms and modulations, but yet be able to 'separate the
essential from the incidental'. And should one wish to know about
marriage in the Padang highlands, Van Eerde (190 1: 388f.) has pointed
out that 'nowhere, (not) even in closely adjoining regions, is exactly the
same adat observed', its practice varying like bamboo measures cut
from different shoots; yet all these measures are cut from the same
bamboo, and this 'essential thing', regardless of its 'minor deviations
or variations', can perfectly well be observed and described.
Who, in fact, would refuse to write an essay on the Acehnese
or Batak languages because these are collections of dialects? While
the variety of adat law should therefore readily be acknowledged,
the problern should be viewed in its true and none too formidable
dimensions.
(--)
 CHAPTER V

ACEH
[June, 1909]

Sources
[148] Snouck Hurgronje's De Atjehers 1 has been quoted so often
in these pages that no more need be said about its importance as a
source of information on Acehnese adat law. The book is 'a very
broad revision of the first part of a report on the politico-religious
situation in Aceh' (submitted to the Government in May, 1892), for
which the author collected the material during a visit to Aceh Major
from July, 1891 to February, 1892. It would be wrong to presume
that this work covers the whole of Aceh and its dependencies. 2 The
original edition deals with the inhabitants of the lowlands and high-
lands of Aceh Major, as observed from the lowlands (the estuary of
the Aceh river). Hostile relations at the time did not permit deeper
penetration without peril of life, and a hold plan to visit and explore
the intetior (the highlands of Aceh Major and the expansive depend-
encies) in disguise, or via Pinang, was fottunately not carried out (-).
The military action by Van Heutz, howevet, has since 1896 given a
firm foothold fot out ttoops and authotity in the remaining patts
of Aceh.
In spite of this, the illustrated English edition of 1906 has not been
revised to include all of Aceh, but has retained its original scope.
Information on adat law in the dependencies must therefore be sought
in other works; but since the great majority of the population of those
areas otiginates from Aceh Major itself, substantially the same adat
law as described in The Achehnese will be found there.
A perusal of the list of possible soutces teadily reveals that there
[149] ate no published decisions on Acehnese adat law.
Both in the area directly under Dutch administration (Aceh Major)
and in ateas undet indirect rule (the little ptincipalities or chiefdoms
on the west, north and east coast) the people have been left in enjoy-
ment of their indigenous judicial tribonals (-). The judgments of
V Aceh 55

these tribunals, however, at least in the past, paid little attention to

adat law. On the contrary, they showed traces of the personal opinion,
arbitrariness and lack of continuity of their European supervisors;
only a judgment from Idi Rayök seems to have been recorded (RNI 63,
1894:705f.). Government reports on agrarian matters are also lacking.
A short account of Aceh at the time of the Sultanate can be found in
TBG 32 (1889):89-97. Reports on conditions in the dependencies
have often been published in BKI.3 The explanatory memorandum
(Bb. 3775) by Der Kinderen on the regulations for government native
courts in Aceh and the ordinance on the musapat court [at the
capital, Kutaraja] , can only sow confusion in connexion with adat
law. Occasionally a little information can be gleaned from the reports
on the political situation in Aceh which regularly appear in the
Javasehe Courant [the official gazette]. Besides The Achehnese, only
two other scholarly publications, both by Van Langen (1888a; 1888b),
need be mentioned. (-) The explanatory memoranda on political
treaties and declarations signed by the local chiefs in the dependencies
give practically nothing in the line of adat law; the international
Treaty of 1857 with the Sultan of Aceh has been submitted, without
commentary, to Parliament as a political contract.
Indigenous codes of law are apparently non-existent; apart from
Islamic studies, there is nothing on adat or adat law.
Formal regulations of Acehnese village authorities or chiefs in Aceh
Major are unknown.
There are no written or printed edicts by the chiefs in the depend-
encies. Edicts of the former Sultanate of Aceh do exist: the well-
known Adat Mökuta Alam (dating from between 1607 and 1636) has
been published in Malay, with a translation, by Van Langen (1888a)
[150] tagether with an edict of 1723. Others are mentioned by
Snouck Hurgronje (1893:5).
Of the world religions, Islam is found here and professed by all
Acehnese. Consequently, there are some Moslem elements in the adat
law (huköm, as against adat - see p. 4, above).

Deiimitation of the law area 4

The Aceh law area runs from Singkel (which is partly Batak) on the ·
west coast, via Aceh Major in the north, to the area of Tamiang
(which is partly Malayan) on the east coast. South of the western part
lies Batak territory; south of the eastern part lies Malay territory; the
high mountain area of the Gayo, Alas and Batak, enclosed by a wide
56 Van Vollenhoven on Indonesian Adat Law

forest belt on the slopes, is wedged between westem Aceh and Aceh
Major on the one side, and northem and eastem Aceh on the other.
The islands Pulo We and Pulo Bröeh, which have few indigenous
inhabitants, and Pulo U (Simölu, Simalur) belong to the Acehnese law
area, as does Trumon. (-) Singkel, on the other hand, which was
retumed to Acehin 1905, rather belongs to the law area of the Gayo-,
Alas- and Bataklands. The Aceh law area, as here indicated, has an
estimated population of 550,000.
In the southem half of the steep west coast of Aceh there are
Minangkabau colonies which have retained important characteristics
of their own adat law. Such seaports as Lhök Sömawe also have a
mixed population. In the highlands of Aceh Major foreign elements
seem to be scarce; but in the lowlands, especially in and near the
capital Kutaraja, and on Pulo We, there are many Niassers, Bataks,
Fadangers and other Malays, and lately also Javanese and Sundanese.
Trumon has many Bataks, Tamiang many Malays.
The population figure indicates that this law area is not densely
settled. Cultivated fields are mainly found in the lowlands of Aceh
Major, in the valley of the Aceh river, and in many coastal districts
in the north and north-east, particularly in Pidie; but the hilly
[151] and mountainous areas are largely untouched, especially the
primeval forests in which, however, pepper plantations may be
found.
Is it necessary to distinguish smaller divisions - law districts -
in this law area? Apparently not. What is known of the dependencies
- most of which were settled directly or indirectly from Aceh Major
or Pidie as late as the nineteenth century - gives the impression
that their adat law resembles that of Aceh Major in all principal
aspects.
The long period of disruption and much arbitrary intervention from
our side have of course changed and spoilt much of the adat law of
forty years ago.

fural Communities
The political organization in this law area is of a territorial character.
The lowest jural community is the village, gampöng or mönasah (as
often on the east coast, but also elsewhere), membership of which is
determined by common residence and not by kinship. The Acehnese
village has its own goveming authority and its own modest common
property.
V Aceh 57

Above the village is the ulei:fbalang-ship, * sometimes divided into

mukim [or native districts]. The former indigenous term really belongs
to Aceh Major, but has lately been introduced by our Administration
to the self-goveming chiefdoms in the dependencies. The mukim is,
as a rule, merely an administrative unit (-) and not a jural community
with its own government and property. Unlike the villages and chief-
doms these native districts are not indigenous, but derive from the
sultanic government which, under the influence of the ulama (Moslem
scripturists), preferred a centralized organization. It is therefore not
surprising to find them in Aceh Major around the sultan's capital
and in neighbouring chiefdoms such as Pidie and Samalanga, but
seldom in the more remote dependencies (-). In the latter areas the
word mukim is normally used only in its older meaning of 'area of a
Friday mosque (Friday Community)', derived from moqlm (resident
of a Friday area) in Moslem law. On the other hand there are in Aceh
[152] Major some twenty 'independent mukim' - occasionally former
waköeh or 'exempted' districts which, alone or with one or two others,
have developed into jural [uleebalang] communities without actually
being so called.
The uleebalang-ships and self-governing chiefdoms could be regarded
as little indigenous Acehnese states. There are fifteen of them in Aceh
Major, and weil over a hundred in the dependencies. They have their
own local government (the chieftain with his officials) and their own
property and income. In Aceh Major our Administration has looked
upon these chieftains as functionaries of the sultan rather than as
genuine local rulers. When the sultanate was taken over, they were
consequently not treated as chieftains, rulers of miniature states and
Ieaders of indigenous communities, but ranked as govemment officials
('district headmen', see ISb. 83/1881, s.4; Bb. 6881:265). In the
dependencies, however, our Administration was better informed, and
recognized the autonomaus chieftains as the heads of self-governing
territories by means of political agreements (at first the agreements
of eighteen articles, which were mere scraps of paper; later the brief

* [Van Vollenhoven made copious use of indigenous terms, with which Dutch
scholars and government officials were expected to be familiar. For the
benefit of other readers, however, the following substitutes are used in this
translation:
uleebalang - chief(tain)
uleebalang-ship - chiefdom
mukim - native district
landschap (Du.) - (self-governing) chiefdom.- Ed.]
58 Van Vollenhoven on lndonesian Adat Law

'Aceh Declaration' of three articles). In the subsequent legislation

they are therefore not referred to as district headmen but as chieftains
(landschapshoofden, see ISb. 473/1904, s.3). Colloquially, the chief-
tains of Aceh Major are also known as raja, a generic term which
applies to the variously titled chiefs of the dependencies as weil. From
what has been said about native districts, it follows that such desig-
nations as 'the IV, VI, or VII mukim' do not imply federations of
communities actually composed of four or six or seven mukim, but
merely refer to an historical grouping of administrative units the
number of which often changed in the course of time.
Even before our arrival the country of Aceh was fragmented in
countless such miniature states. It is true that in many areas there
were, and still are, loose federations of chiefdoms, which probably
grew naturally from the indigenous structure and were not created
by sultans. But the reputed ruler of each of these was merely the first
among his fellows - and not always the most powerful. There was,
and is, no trace here of an internal, centralized authority. Examples
[153] of such loose federations are the following: the three sagoe
(sagi-chiefdom) of the XXV, XXVI and XXII mukim in Aceh
Major, the XXII mukim Bentara Kömangan or Gigieng federation in
Pidie (north coast), the Pase federation (east coast), the federation of
Kaway XII between Aceh Major and Gayaland (north coast), and
of Blang Pidie (west coast).
The Sultanate of Aceh, which stood above these chiefdoms until
the Aceh War, had a foreign character. Initially it must have been
Malayan and Arabic, later Buginese. I t wielded some real power in
the lowlands of Aceh Major; but in the highlands, in the dependencies,
in Gayaland and farther south it enjoyed bornage and respect rather
than power. Under the more recent sultans (before and during the
outbreak of the Aceh War in 1873) it had no real power beyond the
spacious palatial precincts, the dalam (called kraton by us). When
the sultan fled in 1873 to Kömala in Pidie even this remnant of power
vanished (-).
In three respects this sketch gives an incomplete picture of the
political structure in this law area. First, beside the great majority of
villages which come under chiefdoms, there are a number of villages,
in Aceh Major and elsewhere, which are considered to be 'independent'
(see ISb. 259/1899, ISb. 105/1906). Secondly, the Government is also
inclined (ISb. 509/1908) to regard as jural communities the pepper
plantations or sönöbök laid out in the primeval forests of the XXII
V Aceh 59

mukim and in the dependencies, where a number of men (without

wives) have flocked together in colonies (-) under the control of a
plantation headman. According to adat, however, such colonies are
dependent Settlements of their villages of origin. Where they had their
own export estuary (kuala) with a small port and market place (köde),
and conditions in the interior were favourable to long-term agriculture,
such colonies sometimes developed into autonomaus chiefdoms with
villages. lt was not unusual for chiefdoms in the interior to lose their
independence and become subordinate (though hostile) to the port
[154] raja, and be govemed by his relatives. Thirdly, among the
Minangkabau colonies mentioned above (p. 56) thcre are no villages
or uleebalang chiefdoms, but there is instead a faint imitation of the
social structure of the Padang highlands: the matrilineal family, above
this the suku and then the little native state itself. Tapak Tuan, Laböh
Aji and Susöh, all on the west coast, are examples of such states.
This situation, however, differs significantly from that among the
pure Minangkabau. Thc suku here, each under a single suku-head
(datök; abbreviated tök), are not cohesive genealogical communities,
linked groups of related families, but groups of colonist families
originating from the same region (Rau, Pariaman, Kampar, etc.).
The genealogical factor has therefore faded into the background.
The native state here is not, like the nagari in many parts of the
Padang highlands, a collectivity of related families governed by their
representative, but is composed of quasi-suku, and governed jointly
by the suku-heads the most influential of whom is called the chief
datök.
Besides these colonies, (-) there are intermediate forms of organi-
zation in which the genealogical Minangkabau structure inclines
towards the territorial Acehnese structure, as in the little chiefdoms
of Mökek and Sama Dua on the west coast. Government policy, too,
stimulates this levelling tendency.
In this law area there is no question yet of home-grown co-operatives
(corporate societies, etc.): co-operation for a common purpose is not
characteristic of the Acehnese. The only institutions resembling a
co-operative society are, here and there, guilds of fishing boat masters
(pawang), who elect their headman (panglima pawang) with the
approval of the chief. But the occasional groups of villagers co-
operating in the slaughter of water buffaloes for the two major festivals
prescribed by Moslem law can no more be considered as corporate
societies than the body of persons who collectively organize religious
60 Van Vollenhoven on lndonesian Adat Law

meals in the village, for in neither case is there a discrete goveming

authority and common property.
[155] lt is obvious that the 'legal personality' of the jural com-
munities described above must not be conceived generally as a
recognized and strictly defined quality. Also among the early and later
Germanie peoples the common land of the mark-community was mixed
up with the landed property of its members. Even in the hey-day of
the Roman jurists Roman law, when referring to the municipia, stated
that anything betonging to the municipium belongs 'to the municipes'.
Likewise the Indonesian will, for a long time to come, describe what
belongs to a village or chiefdom as something belanging to the villagers
or to the uleebalang concemed - unless our Administration defines
the position, as it has done with the chiefdom treasuries, and the
village ordinance of 1906 in Java.
(--)
As a result of a misjudgement of the actual situation, our Administra-
tion tumed the uleebalang in Aceh Major into a kind of Javanese weda-
na [district headman] - which is not in accordance with adat law,
nor, therefore, with sections 67 and 71 of the Regeringsreglement of
1854,5 nor with what has been donein the dependencies. A rectification
of this error might be a step towards a sound decentralization policy.

Individuals
The mental attitude, so often found in primitive genealogical com-
munities, by which an individual feels hirnself to be more or less an
indivisible part of his jural community, does not exist in Aceh. Yet
the people do not (-) easily detach themselves from their villages
or chiefdoms. According to adat law a person can only move away
[156] from his village for reasons considered valid by local usage.
For women there are hardly any, except, for instance, marriage with
the headman of another village; for men it may be the supervision
of gardens situated elsewhere, or constant quarrelling with fellow
villagers. Even then, permission from the headman of both the old
and the new village is required. Only if a person leaves his chiefdom,
must the chief be notified. On the other hand, permission from the
chief of the new area is required, especially where a number of people
together want to develop new land of some value, in which case he
often provides the newcomers (pepper planters, etc.) with the most
essential requirements, such as agricultural implements, seed, and rice
for one year. (If there is no chief the sultan would have to give
V Aceh 61

permission.) The chief and village headman naturally lose control

over people who have permanently moved to another territory. In the
colonies of pepper planters, who are forbidden by adat law to take
their wives with them, women are allowed only when the settlement
has become permanent; many ladang [dry rice fields] are merely a
hide-out for hostile refugees.
Every person (formerly even slaves) in Aceh had and has legal
capacity, carries rights and duties. The capacity to transact, however,
is limited for children under age and mentally deficient people, the
limitations being determined by common sense. Considering the im-
portant position of married women in Aceh, there is no question of
limiting their legal competence. A formal guardianship (-) is unknown
in Acehnese adat law.
Not only a person's actual legal capacity, but also the legal rules
applicable to him (marriage prohibitions, bridewealth, etc.) are to some
extent influenced by his social dass, though among an unrestrained
people like the Acehnese the differences between social strata are not
nearly as great as, for instance, in Java. There are, first of all, the
tuanku or royalty, the comparatively few relatives of the sultan; then
the nobles (uröeng ulee), that is, the sagi heads and other members
of chiefly families, mukim headmen, etc.; further, the middle dass
(uröeng pötöngohan) such as village headmen; and, finally, the com-
moners (uröeng iku), of whom those with slave blood are considered
[157] the lowest of all. Of a purely incidental nature are the privileges
enjoyed by some people on account of their distinguished origin, or
their importance as authorities on Moslem law [ulama], or, formerly,
their status at the sultan's court. Together with their immediate kins-
men, and sometimes even their descendants, these people are or were
treated with great deference by the uleebalang in whose chiefdom
they live, therefore enjoying a kind of immunity called biböeh or
waköeh. Occasionally, however, as in some villages in Gödöng, this
also affects their general legal status. Classed as Arabs (i.e. as 'foreign
orientals' and not as Acehnese) are the Moslem nobility who, as
descendants of the Prophet, are highly honoured in Aceh especially
if they were actually born in Arabia. In our archipelago they are
usually referred to as sayyid, in Aceh sayet or habib.
With the abolition of slavery our Administration has made an end
to the dass of male and female slaves (mostly people from Nias) who
used to be far more numerous in the lowlands than in the highlands
and dependencies.
62 Van Vollenhoven on Indonesian Adat Law

Persons who, as legal scholars and pious men (ulama, löbe) or as

religious officials or functionaries (kali, mosque imöm, hatib, bilöe,
töngku mönasah), are closely associated with Islam, are given the title
of töngku (outside Aceh Major also bestowed upon others), but there
is no reason to assume that this religious class has a distinctive legal
status.

Executive, ]udicial, and Legislative Powers

In the Acehnese villages (gampöng) these three powers, insofar as
they exist, are not separated. Fused together they are vested in the
same authorities. In the chiefdoms there is a slight tendency to separate
the executive and legislative power from the administration of justice.
The village authority consists of the village headman (köcik), the
village elders (uröeng tuha), and the village religious officiant or
representative of Islam (töngku; töngku mönasah). Including the
ordinary villagers (the 'children of the köcik'), the village therefore
comprises four elements.
As a rule all dwellings (here erected on stilts) are built on separate
residential plots, which have some trees and other useful vegetation.
Fenced off with lattice work and shrubs these plots give access to the
village path or paths, which lead in turn (without a gate or other
partition) to the main road. Somewhere among these plots, next to path
or road and sometimes in a small enclosed yard, there may be a Iittle
[158] mosque, or eise the village prayer house (mönasah). Sometimes
it is situated at some distance from the village. If a mukim headman
or a chief lives in the village, it also contains his kuta, a more sturdily
enclosed plot where he and his retainers occupy a number of houses.
Unlike some other territorially organized communities (e.g. in Karo-
land and Jambi), where villages may contain wards of fellow kinsmen,
the Acehnese village has no such residential clustering of genealogical
units (here: members of one kawöm, lineage). The homesteads of
members of different kawöm are here intermingled within the village
enclosure.
Forming part of the village are in the first place the residential
plots and paths; further, the complex of fields and gardens (blang);
and finally, unless all available land has already been brought under
cultivation, a remaining stretch of level land (padang) surrounding
the village (likewise in the dependencies?). The woods, primeval
forests and other virgin land, however, do not come under the villages.
Viilage signposts or boundary signs are lacking.
V Aceh 63

The settlements of some importance near dry cultivation fields

(ladang), the pepper plantations in the forests, the complexes of jointly
enclosed wooden trading stands (köde) with adjoining living quarters,
and finally the toll-houses (kaway) found between Aceh and Gayoland,
may all be regarded as hamlets belanging to villages. These hamlets
may even grow into new villages.
Even where some villages closely adjoin, as in one or two capital
settlements like Kutaraja, or where about four villages are grouped
like wards around a Friday mosque to form a kind of little town
(e.g. in Bueng), each gampöng keeps its undisputed autonomy.
The köcik [village headman] and töngku [lslamic officiant] are
said to hold office at the chief's pleasure, but as with most other
Acehnese offices, their functions are as a rule hereditary - which
has its advantages. The village elders, an indeterminate number, are
neither appointed nor regularly elected, but tacitly recognized by public
opinion for their ripe experience and civility, one of them being more
prominent as deputy headman (waki).
The disposal of cases by köcik and töngku in consultation (mupakat)
with all adult men of the village (not always in or near the village
hall) occurs less often than the regular consultations with the village
[159] elders; but the headman tries to heed the wishes of all, if only
because his decisions would otherwise be ignored. The adat determines
what interests are to be regarded as village interests, and therefore
which matters should or must be dealt with by the village authority.
They include: the maintenance of public order; removals; the
administration of cleansing oaths; most family matters (such as mar-
riage, care of orphans, burial places, listing a deceased's property for
the distribution of his estate); the observance of rights and duties of
landholders; the sale or gage of fields and livestock; fixing dates
of the ritual kanduri meals for the promotion of crops, etc. While in
all these matters it is the headman particularly who is responsible
for the protection of village interests, the töngku, who is often barely
literate, takes care of the village prayer house (mönasah) and daily
sömayang services, solemnizes ordinary marriages of women from his
village, and he takes note of repudiations. He further collects the
religious jaköet and pitrah levies, 6 and helps to find Arabic names
at the ceremonial name-giving of children. He must also perform ritual
slaughterings (for which he receives a piece of meat as a slaughtering
fee), and bless the kanduri meals. He washes the bodies of deceased
men, performs the funeral service for both men and women, recites
64 Van Vollenhoven on lndonesian Adat Law

(for a fee) the leading prayer at the grave, and 'plants' the tombstones
on a specified day after burial. In short, he is responsible for many
activities (but not circumcision) under Moslem law, and for a few
others prescribed by indigenous usage.
Usually the village headman has one or two helpers (waki) at his
disposal. There are no village scribes. (-)
In the absence of village-owned land (-) its common property is
the usually filthy village hall (mönasah) on stilts, the customary
meeting place of the village council, which also serves as young men's
quarters, guest-house, 'clubhouse', and, since the advent of Islam, as
[160] a house of worship as well. Sometimes the village possesses a
set of crockery for religious feasts, which is stored in the village hall.
Since the abolition of road funds in 1908, village treasuries seem to
have been established in some places. The communal rights in land,
vested in the village, will be discussed below.
Village taxes (-) exist only in embryonie form: the modest cash
levies, such as payments for assisting at marriages and hurials (hak
katib or hak cupeng; hak tölökin), go to the two official functionaries,
köcik and töngku, who also enjoy various indirect benefits as well as
some incidental income. A regular taxation in the form of services for
the benefit of the village as a whole was unknown, but the headman
could make a reasonable demand upon the service of his 'children'.
On the basis of mupakat [common agreement] there was some CO-
operation in the making and maintenance of paths, fences and water
furrows, but such labour was as irregular as it was light. (-)
Unless otherwise stated, all this seems to apply to the dependencies
as well as to Aceh Major. Sometimes a headman is (was) in charge of
two, three or four villages.
The above-mentioned pepper plantations, native market places
(köde) and toll-houses (kaway), each has its own headman without
necessarily being an independent unit. (-) The toll-headmen were
sometimes given a letter of appointment by the sultan if they were
prepared to hand over to his tax collectors a part of the toll duties as
wase (adat gle, tribute). More remarkable as a rule were (and are) the
activities of the plantation headman (pötuha sönöbök). He often met
the needs of his followers by giving them pangkay, an advance on their
capital outlay. But even without this they were, at least during the first
few years, obliged to deliver their pepper crop to him for less than the
market price. The profitable difference was called wase pötuha [head-
man's tribute]. A plantation headman who was the first to arrive in an
V Aceh 65

area, in course of time often became a chief (raja). Those coming after
him remained pötuha, and had to give the new chief a certain amount
per pikul [approx. 68 kilo] of pepper as wase raja, part of which the
[161] sultan again tried to seize as wase sultan. But a pötuha in turn
enjoyed as wase pötuha the profitable difference between the reduced
price for which his own followers had to sell pepper to him and the
market price (less wase raja) or the slightly higher price for which the
chief forced the headman to sell to him. At a still later stage such a
new chieftain would hirnself start plantations under headmen appointed
by him, and if he had advanced them some capital he would reap,
besides his wase raja, also the capitallevy or wase pangkay. Nowadays
both the amount of the pepper wase (now an export levy on pepper,
see p. 68, below) and the Government's share in it (i.e. the former
sultan's wase) are fixed by the administration.
Finally, it should be noted that, except for the administration of
justice, the chieftain interferes with the domestic affairs of the village
only in some cases of removals or in the alienation of rice fields (see
below).

In the autonomous native districts (mukim) or little quasi-chiefdoms of

Aceh Major, as in other mukim divisions [which are not jural com-
munities], local authority rests with a mukim headman (imöm) whose
position is normally hereditary. (-)
The administrative districts under district chiefs (datök), into which
our administration has divided the sparsely populated islets of We,
Bröeh and Simölu, are of course not jural communities and have no
connexion with adat law.
The indigenous government of the chiefdoms in Aceh Major consists
of the chieftain (uleiJbalang) alone; in the dependencies it is often (e.g.
all along the east coast) the chief with his divisional tetrarchs, each of
whom has his own title: köjruen, möntroe (mantri), cik, pakeh, ben;
in Lhök Sömawe, mbah raja (not from 'maharajah'); in Tönom, imöm.
The tetrarchs - tuha pöet, the 'four elders' - do not consider their
hereditary titles inferior to those of the uleebalang, but the chiefs of
Aceh Major rightly regard them as less dignified - just the reverse of
the attitude of the Government, which turned the chief into [govern-
ment] district officials while recognizing the tetrarchs as uleebalang
[162] and petty monarchs (above, pp. 57-8). Each of the tetrarchs
- their nurober did not always remain four - has to administer his
own division of the chiefdom. They are therefore sometimes called ulee-
66 Van Vollenhoven on Indonesian Adat Law

balang cut, petty chiefs, and they have to be consulted by the chief on
a number of traditionally determined matters concerning the chiefdom
as a whole. In Rigai'h, on the west coast, they may be called köcik and
their division sagoe; and in Lagöen, the chiefdom authority is referred
to as 'the five chiefs' (uleebalang limong).
The relative subordination of one chiefdom to another, which often
existed (and still exists) as a result of more recently as against earlier
establishment rights, is influenced by many personal factors; the
government, however, is apt to transform this relationship into one of
equality (Enc. N.I. IV:827).
The chiefs, too, practice mupakat with their subjects [i.e. ascertain
the views of their people at public meetings].
In addition to the territory occupied by their villages, chiefdoms
may also include the extensive stretches of wooded and hilly country
which do not belong to the villages. It is not suprising that, on the
flanks where the wooded interior rises towards the high Gayo- and
Alaslands, chiefdom boundaries are usually il1 defined or unknown.
In any dispute concerning the extent of a territory the breaking in of
land by people from one chiefdom is a powerful argument to support
its claims.
lt seems uncertain whether under adat law the shallow inter-tidal
zone is considered to be part of those chiefdoms which are bounded by
the sea. There are old warrants (sarakata) from the sultan recognizing
as a chief's domain the off-shore zone 'as far as one can fish with drag-
nets'. The tribute paid for such concessions by chiefs from the depen-
dencies at the sultan's palace [at Kutaraja] or [after his flight in 1873]
at Kömala, was called jinamee Aceh or 'Aceh bridewealth'.
The positions of the chiefs and tetrarchs are normally hereditary.
lt is or was very common for a woman to assume authority during her
husband's absence or in her capacity as guardian of her son in his
minority. In recent years there have even been cases in the depen-
dencies of succession by female members of a ruling clan. New chief-
taincies can be created as well as new village headships, and both
[163] dismissals and resignations occur. According to adat a territorial
chief (including the head of a mukim or a village) may not at the same
time be the head of a lineage (see below).
There is (was) a great deal of variety in Acehnese officialdom. Next
to the chief one may find a relative called his banta or helper, being
more or less what, before 1900, the patih in Java was to his superior,
the regent. There are the mukim headmen in Aceh Major, Pidie, etc.,
V Aceh 67

and the tetrarchs and waki or deputies in the dependencies. At the

ports, those 'centres of relative civilization and wealth in all Malay
countries', are the syahbandar [toll-collectors]; at the estuaries a
kapala krueng to keep the waterway open, and a pawang krueng to
maintain a ferry service from which the headman shared the remunera-
tion; at market places on the east coast haria to collect dues, and
panglima la'öt for export and import; panglima prang [military com-
manders] to collect wase and taxes in peacetime; and finally, for any
conceivable duty, from the humble carrying of messages to the im-
portant task of collecting taxes, the chief's retainers (rakan), whose
homesteads are in the fortified courtyard (kuta) of their master.
lt seems that many of these functions - which are likely to diminish
in number and diversity under European influence - are normally
hereditary. lt is not unusual for such offioials to rise to become chiefs
in the dependencies.
Native scribes (kram} for bookkeeping and correspondence were
known to the more important chieftains even before our influence
made itself feit.
A peculiar position among these offioials is occupied by the Moslem
kali [religious judge], who assists the chief in applying Islamic law.
His function, like that of the village töngku, is (was) in practice
hereditary. Some degree of literacy was required, however, and it was
not rare for even the kali to find hirnself in need of enlightenment.
They were formerly found everywhere in Aceh Major, where the kali
of Lagöen, of Lhök Sömawe and of Gödöng are especially mentioned.
Their numbers have declined, however, for reasons which will be
mentioned later when the administration of justice is discussed.
lt is really only since our administration made its influence feit that
the uleebalang and other chiefs can be said to have paid regular atten-
tion to the interests of their country and people. Their customary
government therefore used tobe far from popular. Although the chiefs
[164] in the dependencies were for a long time treated as docile
puppets, since 1908 it seems to have become the administration's aim
to raise them to responsible local authorities. Chiefs' sons from the
dependencies and Aceh Major are to be given more and better educa-
tion at Fort de Kock. Considering, however, how the [appointed]
mayors in our own country are still repeatedly being treated as sub-
ordinates by Ministers of the Interior, it should not surprise us if an
Acehnese chief adopts the same attitude of lofty superiority towards
village authorities as he adopts towards his own personnet All lower
68 Van Vollenhoven on Indonesian Adat Law

dignitaries collectively, from plantation and village headmen to the

chief's helpers and tetrarchs, are apparently called pötuha [elders]
(-).
[Adat] taxation in the self-goveming chiefdoms of the dependencies
is recognized by the Administration, and stilllargely bears the character
of levies for the benefit of the chief himself. 'Largely', because in
recent years the Govemment has rightly aimed at diverting the bulk of
these levies and other revenues either to chiefdom treasuries, while
compensating the chief, or to itself. (-)
As everywhere eise, the adat levies are greatly varied and, where our
administration has not imposed some order, quite arbitrary. The
following may be mentioned: in chiefdoms with an estuary, a levy on
each rudder going upstream (wase kuala); a market tax (wase pökan),
now prohibited in territories under direct rule; transit duties at the
borders of Gayoland; export duties (wase) at the estuaries, like those
on pepper, betel-nuts and forest produce (wase utöen); a share in a
hunter's bag; and estate duties (hak pra'e). Besides these, the avidity
of chiefs and headmen has invented many other means of income: a
share in the rice crop; levies on owners of dry rice fields (wase tanoh),
on boats (prahu) coming to anchor and on the sale of land; income tax
(wang harökat) on independent pepper traders (additional to the
pepper levies mentioned before); hause 'tithes' (usöy); and the so-called
reef-duty on jetsam, which caused us so much trouble in the past; etc.
[165] lt has also happened that indigenous authorities sold or
pledged their official functions.
The Administration has in many areas put an end to most of these
arbitrary levies - of which formerly the sultans, too, demanded a
share. In such cases the chiefs mainly retained an important share in
our import and export duties, as weil as their levies on pepper and
betel-nuts. (-) In the past, however, the greatest source of a chief's
income was the administration of justice, which will be discussed
below.
Regular taxations in the form of stipulated amounts of labour for
the benefit of the chiefdom were unknown in Acehnese adat law. (-)
Both inside and outside Aceh Major, however, the population would
give influential chiefs some gratuitous help with the building of their
houses or fortifications, or with the cultivation of rice fields possessed
or confiscated by them.
The armed forces of an Acehnese chiefdom were (and in the depen-
dencies probably still are) based upon the !arge and powerful lineage
V Aceh 69

of the chief himself, reinforced by his various retainers - insofar as

these chose to muster. The military commanders (panglima prang -
not very important posts) were men who had distinguished themselves
in battle, and in times of civil war slaves from Nias were often
employed as warriors. How far a chieftain could rely on bis army
depended entirely upon personal and otber considerations. We may
laugh at such a miniature force, but in Acehnese society it made quite
an impression.
In every chiefdom and independent native district (mukim) tbere
are tbese peculiar officials whose task it is - similar to that of tbe
[166] töngku or Islamic officiant in the village - to apply Moslem
law insofar as it bas acquired validity, and who may therefore be
called Islamic religious officials. The kali, the official connected with
the Moslem administration of justice, bas already been mentioned.
Apart from bis duties as regards Moslem law in formal lawsuits, he
also acts [as the woman's wali] in certain marriages (below, pp. 83-4).
In addition to the kali, however, there is the personnel of the Friday
mosque (mösögit, sömögit, where not only the daily services but also
the Friday meetings are held). There are a fairly large number of tbese
mosques, sometimes built inside one of the villages of a Friday com-
munity, sometimes standing apart. In Aceb Major there is, as a rule,
one in every mukim division; but in the dependencies not always one
in every chiefdom. Their personnel, when complete, comprises tbe
imöm or keeper of tbe mosque, tbe hatib, wbo reads the Friday sermon,
and one or more biloe (callers to prayer and sweepers) occasionally
assisted by other functionaries. The imöm has no other function than
to administer the mosque and its property, because all other functions
are assigned either to the kali or to the village töngku - a situation
entirely different from that in Java, where alle important functions
under Islamic law were in the hands of the keeper of the mosque
(penghulu).
The mosque personnet is (was) appointed by tbe chief (utei!balang).
In view of their limited duties tbeir income is small; the religious
levies (jaköet or jakat; pitrah) in Aceb do not accrue to them but are
for the benefit of the village töngku, the ulama or scripturists, and the
boly war (prang sabi). Institutions like the mosque treasuries of Java
are absent bere. The religious official appointed by the Administration
at Kutaraja under the Javanese title of chief penghulu is and was
nearly always a non-Acehnese. Officially he is not connected with the
principal mosque, but he acts as adviser to, and administers oaths in,
70 Van Vollenhoven on Indonesian Adat Law

the landraad [government native court] instituted for non-Acehnese.

Of the very loose indigenous federations in Aceh Major and else-
where it is difficult to say whether they have a discrete common
government, territory and system of taxation. The principal head of the
federation has, as the chieftain of his own territory, the usual powers
of an uleebalang; as the head of the federation he has (and had)
authority only in matters of government and justice involving common
(167] interests. His kali was regarded as the chief kali of the fede-
ration.
Of the former sultanate 7 only a few traces are left in Acehnese
institutions. Of these, the religiously inspired appointment of adminis-
trative mukim headmen in Aceh Major (p. 57) is the most important,
although this has resulted in something different from the division in
mosque districts which must have been the original aim. Outside the
Aceh law area traces of the sultanate are found in the creation by the
port chieftains of subordinate authorities whose name and number
reflect the favourite numeral four (see village structure, p. 62; tuha
pöet, pp. 65, 66). The reason behind these appointments must have
been the realization of Aceh's neighbours that they ought to acknowl-
edge their political subordination to this formerly powerful state, and
that therefore the sultan's confirmation had to be asked for some of
their representative headmen. How far the selection of these newly
created representatives and tetrarchs was really determined by Aceh
remains an open question. At any rate, some of these offices still exist,
though their number has sometimes been altered: the six kejurön or
headmen of equal status in Gayoland, the two kejurön in Alasland, and
the 'fourfold raja' (raja perempat, raja na opat) in the countries of the
Karo-, Simelungun- and Toba-Batak. The sultanic enclaves, founded in
Aceh Major and in PidH!, and some other dependencies under headmen
directly responsible to the sultan, no Ionger exist as such, most of them
having become 'independent mukim districts' (above, p. 57). Each of
these domains usually consisted of a complex of three mukim units,
and was called waköeh district (not to be confused with waköeh in a
Moslem sense).
There used to be (where exactly?) other places called biböeh or
waköeh in Aceh. Their peculiarity was that, because of the presence
of one or more widely revered ulama who were regarded as biböeh
[inviolable, immune, see p. 61], the sacred law was more strictly
observed than elsewhere, and that adat institutions in force in other
villages were here set aside. Such communities were sometimes re-
V Aceh 71

cognized by the chief or sultan, but often they were founded without
such recognition. The biböeh status was generally ascribed to such
centres of Islamic studies as the village of Tiro in Pidie, but in Aceh
Major all traces of the peculiar influence of these ulama soon vanished
after our armed intervention.
[168] Finally, the present-day chiefs in the dependencies (Lhök
Sömawe, the Kaway XII, etc.), are an indirect outcome of the sul-
tanate. Originally they were either collectors of the sultan's taxes
(Moslem converts were preferred for this task), or they occupied such
important positions as port headman or collector of the sultan's toll at
one of the estuaries.

Administration of fustice
Under the adat law of this law area the indigenous administration of
justice (fortunately not yet replaced by the judicial regulations of the
Aceh Reglement, which are therefore irrelevant in this respect) did not
rest with the village (gampöng), but exclusively with the chieftain
(uleebalang). Even in federated chiefdoms the panglima sagi [principal
chief] or his fellow chiefs each administered justice only in respect of
his own chiefdom. A possible exception was the federation of Kaway V
(sub-division Mölaböh), where there seems to have been a federal judge,
the tandi or waki of the principal chieftain, who held court in the
various chiefdoms of the federation, and whose decisions, it is reported,
could not be revised even by the chief concerned. A second exception
to the exclusive judicial power of the chief was found in some parts of
the XXII mukim, where in minor cases a measure of judicial power
was exercised by tribunals of three or four mukim headmen (imöm) in
place of the chief. lt is true that often the village authority, and in
Aceh Major sometimes the headman of an administrative mukim, was
and still is concerned with legal cases, but then only as an arbitrator
seeking a compromise: the former with civil and criminal disputes
within the village, the latter with disputes arising outside the village.
But neither village authorities nor district headmen had real judicial
power. Their conciliatory treatment of cases requiring no forcible
execution of judgment or punishment was often sought, if only because
it was cheaper, simpler, and no worse than justice at the hands of the
uleebalang. Professional disputes arising between masters of fishing
boats - usually about fishing in each other's waters - are normally
settled by the Ieader of their guild (p. 59).
All formal administration of justice therefore rested with the chiefs.
72 Van Vollenhoven on Indonesian Adat Law

When deciding cases also involving Acehnese from outside his territory,
a chief used to consult the other chief - unless the matter had resulted
in a wrangle, or worse, between them. In this respect our regulations
[169] for the indigenous administration of justice have brought im-
portant changes, for we have introduced a federal administration of
justice, similar to what is said to have developed to some extent in the
area of Pase, with its neutral court or bale at Bluek. Under the queer
name of musapat we created superior benches above the one-man
chief's courts, with all the chiefs of a certain sub-division sitting jointly
under the guidance of a government administrative officer. In their
organization and actual practice these musapat courts have so far paid
little attention to popular conceptions, partly because of the recommen-
dation that the whole of our cumbersome, western-conceived proce-
dural system be applied. The chief's administration of justice used to
be no more popular than their government, and our concern with their
jurisdiction was undoubtedly desirable (-). But we became somewhat
overgenerous in our attention when we prescribed, at any rate for Aceh
Major, that even a chief sitting as judex unus (at the musapat sessions)
had to act under the eyes of the controleur [ district officer] . Our
administrative policy should rather heed the old-Acehnese adage: 'Keep
him from erring, support him in righteousness, help him in distress,
take him in hand when he may have overstepped the mark'.
For a knowledge of Acehnese adat procedure - the Acehnese are
(rightly?) said to be Iovers of Iitigation - the information is scarce.
Regular court days seem to have been unknown. Court was held in the
chief's kuta or at the place of misdeed. The village headman would
escort (also in the dependencies?) the parties to the chief and explain
the case, for which service he was given something by the judge. In
matters of marriage law (marriage, orphans) or disputes concerning
land or water (including boundary disputes) there seem to have been
no fixed court fees. On the other hand, if the recovery of a debt was
claimed (including inheritance claims), both pal"ties were required to
deposit an amount or thing to the value of the disputed claim. These
Iitigation pledges (hak ganceng) were meant as security for obeying the
judgment, and were returned by the judge after his decision had been
[170] complied with. In such cases, however, the judge also imposed
a tithe as remuneration (sometimes called adat bale) for his efforts,
sometimes as much as one-half to two-thirds of the debts collected with
his assistance. If the dispute concerned an offence punishable with a
fine, the fine went to the judge. The chieftain-judge usually passed a
V Aceh 73

percentage of this to the kali (Moslem judge) if the latter had been an
assessor. Judicial action against the chiefs themselves, for instance
conceming the legality of their taxes, was of course inconceivable
under adat law.
A fixed procedure seems to have been unknown in Acehnese adat
law. Who initiated the process: the complainant or the judge? Could
only the judge cross-examine, or also a litigant? Did the judge have the
case investigated beforehand? In the chiefdom of Bungong Taloe
(Kaway V, sub-division of Mölaböh) there used to be a pangulee
pönaroe ( = bönaroe) responsible for settling disputes, with a pangulee
sidek ('chief of investigations') under him. It has not, so far, been
established that these titles reflected actual practice, or that elsewhere,
too, there were officials under the chief especially responsible for the
investigation of law suits. Torture and divine ordeals were not un-
known as a means of investigation.
Though generally the course of adat process was not bound by strict
rules, an exception was made in the dramatized theft process. Here,
according to fixed rules (and upon payment, of course) the chief
hirnself had to establish the fact at the place of misdeed, and to verify
the identity of the thief (pösah pancuri); no other procedure was
recognized. Would this still in any way be observed by our federal
musapat courts?
Civil and criminal matters were not kept separate. The appearance
in court of the aggrieved person as principal witness and not as litigant
is of course incomprehensible to the population.
A few rules of evidence did exist. The normal means of evidence
- apart from confessions, which were taken as sufficient proof -
was of course the testimony of formal or casual witnesses. Formal
witnesses were and are therefore required to validate many legal trans-
actions (sale, etc.) permanently transferring the most important kinds
of property (land, draught animals). Similarly, they are also required
for the conclusion of a marriage. For this reason the 'send-off'
(pöngkleh) of a daughter at the end of the bridewealth period (see
pp. 86ff.) takes place with sacramental formulas at a ritual meal
in the presence of the village authorities and guests. Likewise, the
[171] last instructions (pönösan) given in extremis by a dying person
should preferably be uttered in the presence of witnesses.
The position is different with casual witnesses or complainants.
They have always been required to substantiate their testimony or
allegations through some visible token (tanda), such as the blood-
74 Van Vollenhoven on Indonesian Adat Law

stained knife, the pregnancy of a wife, a piece of clothing worn by the

man accused by a woman of having molested her. Similarly, the clothes
of a man who has died in someone's house away from where his wife
lives, serve as alamat [identification] when she is informed of his
death. The unsubstantiated [in this sense] evidence of witnesses in our
court procedure seems to have been worthless in the adat process. For
this reason fictitious tokens were sometimes used, which are no stranger
than the tricks which enable the British to circumvent iron-clad rules
such as those preventing the House of Lords from scotching a bill, or
a member of Parliament from resigning his seat.
The administration of oaths to witnesses before they are heard is
completely unknown to indigenous law, and is even prohibited in a
religious court under Islamic law. The attitude of avoidance between
son-in-law and parents-in-law, and the reluctance to mention one's
proper name, are respected also in law. Indications of guilty behaviour
are as important to the Indonesian as they are to us; but what we
would construe at the most as a legal (adat) presumption of guilt
- for instance, walking about in a strange village after nine in the
evening when there are no festivities going on - is among them very
often itself a punishable wrong. Documentary evidence, e.g. the
recording of marriages, did not exist. Under our influence the age-old
divine ordeals have disappeared from the formal administration of
justice, but they still regularly occur in cases settled between parties.
They were customarily used either to trace a guilty party or as a
supplementary means to adduce proof. They were administered by the
chieftain-judge, sometimes on individuals, sometimes on people col-
lectively. There were no rules regulating the burden of proof, either in
what we term civil cases or in what we regard as criminal cases. A
person suspected of being in the wrong, or of having committed a
crime, could therefore be required to take the cleansing oath, which
was usually, on the instructions of the village authorities, administered
in Moslem style by the Moslem officiant in the village mönasah. The
Moslem oath consists only of a formless asseveration, while invoking
Allah's name. The oath may be reinforced by reiteration or by
[172] producing a Koran (e.g. by holding it over the head of the oath-
taker), or- in Aceh as weil as elsewhere- by administering the oath
at a sacred grave (kubu kramat) which is to be found in the vicinity
of practically every village. Although rules like ours concerning the
burden of proof were unknown, a person whose property had been
stolen and who wanted to claim compensation, or who had killed the
V Aceh 75

thief in the act, was nevertheless expected to prove that theft had
actually been committed and by whom.
Nor were there any fixed rules as regards the execution of a declared
judgment- e.g. restitution of land or chattel; payment of a thing or a
sum of money; infliction of capital or corporal punishment. Who,
indeed, could have forced the chief to abide by such rules?
Seizure of property, where possible, was generally considered to be an
obvious remedy and a matter of common sense. But seizure of the
debtor himself, as a kind of bondage, appears to have been of little or
no significance in this law area. Besides execution by the chief, private
execution by the judgment creditor must have occurred. Execution of
death sentences - at which the condemned bad to wear a special
dress - was formerly done by throttling or the sword. The idea that
the Acehnese feared decapitation as the cause of a wretched existence
in the hereafter is a fabrication. Fines imposed by the indigenous
courts are under the adat due to the trial judge, but since the advent of
our administration much of this flows into all sorts of illegal local
funds of which the purpose is usually quite arbitrary.
A peculiar form of judgment execution is the 'banning' of rice fields
(langgeh umong). lt served (serves) as a security for the payment of
fines for wrongs committed against the person of the chief, his relative
or his retainer, and consists in an order to the owner of the field,
presented in the shape of a pole crowned with a young white palm
leaf, forbidding him to cultivate his own rice field. The ban lasts, and
the pole stays, as long as the debtor has not paid. If he delays payment
a long time the chief will first have the field cultivated for his own
benefit, and finally appropriate it. Likewise known was the banning
of fishing boats tagether with their drag nets and other equipment.
Whether these methods, known also in the dependencies, still exist
to-day is uncertain.
[173] lt was stated above that under adat law allformal administra-
tion of justice rested with the chieftains. A religious administration of
justice, ranking above that of the chiefs, to which in theory people
could appeal in reverence for the divine law, was therefore unknown
among Acehnese legal institutions. An independent religious judiciary
enforcing Moslem law existed alongside the justice of the secular rulers
of the country only in the hey-day of 'the habib' Abdurrahman
(approximately 1860 to 1870), when, at the latter's insistence, the
sultan created a brand-new court at Kutaraja s under the name of bale
möhakamah for cases conceming Islam- which, in Moslem terms,
76 Van Vollenhoven on Indonesian Adat Law

means all cases. Within a few years, however, this court vanished for
all time. What then is the function of the kali whom we mentioned
earlier? He was occasionally consulted by the uleebalang on matters
of religious law or entrusted with its application: sometimes as a mere
formality in cases still governed by indigenous law; but as a rule
seriously, as on the determination of the blood-price, and on aspects
of family law and inheritance which, in the vast majority of Moslem
countries, are traditionally left to the religious judge as the result of a
division of responsibilities which, after the end of the 7th century,
gradually evolved between the Moslem authority culminating in the
caliph, and the Islamic scripturists who freely continued to interpret
the revealed law but had to surrender the (non-)enforcement of a
major part of it to the secular authorities.
In Aceh Major, responsibilities not taken away from the representa-
tives of Islam included: judging the validity of a marriage, the func-
tions of llhe emergency wali (an official marriage agent), the judicial
dissolution of marriage (pasah) and calculating the apportionment of
the estate. But there were also matters of family law and inheritance
decided without the kali. This description also applies to the three
principal kali in Aceh Major to whom the sultanate had tried to grant
a privileged rank above other kali; to what extent the same was true
in the dependencies depended on widely diverging local circumstances.
The influence of the kali therefore was comparatively even much less
[174] than that of the töngku in his village, while his role in the admin-
istration of justice, in spite of his pretentious title (kali = qädi, judge), 9
bore but a very poor resemblance to the 'priestly justice' we instituted
in Java before and after 1882. For even when exercising his limited
jurisdiction, especially in matters of family law and inheritance, the kali
did nothing without the instructions or specific permission of his chief,
the ulei!balang (he even needed the latter's powers of execution), and
if the chief so ordered, the Islamic law remained in abeyance. Our
Administration has (through ignorance?) wiped out the jurisdiction of
the kali, with the result that all cases, including family and inheritance
disputes, are now brought straight to the chief or the [federal] musapat
court (p. 72). Nor is there any religious court beside the landraad (for
non-Acehnese) at Kutaraja, but the chief penghulu (p. 69) is con-
cerned, for the sake of the benefits involved, with marriage cases of
non-Acehnese Moslems, in respect of which there are no official pro-
visions.
Now that llhe chiefs of Aceh Major are sitting in the musapat court-
V Aceh 77

room nearly all the chiefdom kali seem to have disappeared. Only one
kali (the original principal kali?) remains for the combined chiefdoms
of an administrative sub-division, and he attends its musapat sessions
merely as an adviser. In the dependencies matters have probably not
yet proceeded quite as far.
From this description of kali jurisdiction it follows that there was
no room in such cases for the distinctive, and purer, Moslem rules of
justice. The income of the kali was determined partly by adat rates,
and partly by the generosity of the chief (pp. 72-3).
Besides the traditional arbitration by village authorities and the
traditional administration of justice by the chiefs there has, of course,
for centuries been private redress of wrongs on a fairly large scale.
Private redress is (or was until recently?) in the first place customary
for such wrongs as bodily harm, injury or manslaughter resulting from
ordinary quarrels. It then took the form of a revenge (bila lO = blood-
or other vengeance), executed by the aggrieved person (if still alive)
with the help of his kawöm or lineage members. If they exceeded their
measure (for instance manslaughter in retaliation for physical injury),
[175] the bila case sometimes led to a drawn-out feud. Often blood-
money was accepted in redemption of the right of revenge, in the more
civilized areas even in cases of manslaughter. If the guilty party in a
vengeance case fled to another place and the local people affered him
asylum, the protecting village itself would take action if an attempt
was made on his life. A much modified version of private redress is a
kind of inter-village duel or mock-attack inside the village, called adat
mölangga, practised for minor wrongs such as insults or disparaging
behaviour. Lawful private redress is (was) also the slaying of a thief
caught red-handed or afterwards, as weil as the slaying of adulterers
caught on the spot or - provided there is proof - later elsewhere.
If during the agricultural season, 'the season of the closed field'
(about eight months between sowing and reaping), a cattle owner
allows his beast to stray into a rice field, the owner of the field (also
the share-cropper or pledgee?) may kill it without waming, but not cut
it up. The same applies when cattle do substantial darnage to fences or
enclosed gardens and the owner of the cattle has failed to restrain them
in spite of wamings.
Private redress was probably not unknown also in cases other than
those mentioned above, for instance with regard to debts or land
rights, possibly also in matters of family law and inheritance. So long
as police and judiciary in this law area are not so effective as they are
78 Yan Vollenhoven on Indonesian Adat Law

in the Netherlands a certain amount of private redress, willhin the

necessary Iimits and with necessary safeguards,ll will have to be
tolerated.
Seizure of a debtor's total assets, either under the court's Supervision
(i.e. Iiquidation in bankruptcy) or otherwise, is unknown to adat law.
Joint action by creditors when the liabilities of an estate exceed its
assets, also seems to be unknown (-).

Indigenous Legislation
Nowhere in Aceh has legislation - i.e. the deliberate formulation of
rules and regulations - been clearly developed by villages or chiefs.
The term sarakata, traditionally used for the regulations issued by the
former sultans (-), also applies to the formal concessions (Javanese:
piagem) which they granted to chieftains etc. in Aceh, or to the
[176] tetrarchs in other areas (pp. 65-6).
The main subject of this section concerned what we would call
constitutionallaw, that is rules relating to the constitution and powers
of governing authorities. Of an administrative law, in the sense of
enforceable rules to which these authorities have to conform when
discharging their duties, there is of course nowhere any question in
adat law. lt is useful to know the normal practices of the chiefs with
regard to taxation, administration of justice, and so on; but under
Acehnese adat both the individual and the village are powerless against
the chiefs. Only under our administration can this position be changed,
and improved.

Adat I nter-local Law

Apart from the adat mölangga (p. 77), Iittle is known of any kind of
adat law applicable to the numerous and disastrous little wars waged
between villages, often within the same chiefdom; between chiefdoms,
often of one federation; and between chieftains, or even between
pretenders to the same chieftainship. In such wars the so-called waköeh
or exempted districts (pp. 70f.) of the sultan had to be respected, inas-
much as no fighting was allowed to take place on these neutral territo-
ries, and their neutral inhabitants were, for instance, allowed to remove
the dead on behalf of both sides without interference. Nowadays such
little wars can occur only when a whole region becomes disturbed
again, as the Körötoe area in 1907. The light fences of the villages, and
the heavier ones of the chief's kuta, probably indicate frequent warfare
in the past. A right of hospitality for foreigners, or for Acehnese from
V Aceh 79

other villages or chiefdoms, did not exist, and the resulting Iack of
safety discouraged travelling.

Law of Kinship
The characteristic feature of the Acehnese law of kinship and the
closely related law of marriage, is that they are based on [a system of
double descent],* of which matrilineal and patrilineal remnants sur-
vive, overlaid and interspersed with elements of Islamic law. Marriage
is based on jural equality: * neither the wife nor the busband is the
sole owner of property accruing to their conjugal family; each of the
spouses retains his or her own property, and during the subsistence of
the marriage they have a joint right to property jointly acquired. Neither
spouse requires the legal assistance of the other. Descent is not reckoned
[177] through daughters only or sons only, but through both.
There is this important matrilineal survival: during the lifetime of
her parents a married woman occupies her own house on the premises
of her parents, or a part (if necessary, an annex) of their house, and
her children are normally brought up here. Although the busband lives
with her if he is a member of the village, or at least occasionally visits
her ('coming home'), he is nevertheless to a certain extent a stranger in
that house, as is shown in the relationship between him and his
parents-in-law. As far as housing and subsistence are concemed a wife
is virtually independent of her husband, and therefore not particularly
concemed about the possibility of an easy dissolution of her marriage
(by conditional repudiation). In short, for an Islamic country she
occupies a fairly strong social position. If a young man marries outside
his village his children are lost to it. Descendants in the male line
usually live scattered in different villages; in the female line, the
daughters nearly always live close to each other, either in one spacious
house or on one residential plot, and the sons do so often.

* [V.V. here used parenteel huwelijk ('parental' marriage) in the same sense in
which he later employed ouderrechtelijk (lit. pertaining to parent-right), the
latter term becoming accepted technical usage in Dutch adat law writings.
Neither term lends itself to a literal English translation, but the meaning is
clear from his text (particularly from his later description of Javanese
marriage law, see pp. 169ff. below). Hoebel and Schiller (1948:170) used the
Anglo-American classification 'bilateral' in this connexion in their English
edition of Ter Haar, 1939, a term which is suitable with reference to ties of
kinship and descent, but meaningless (if not worse) as a qualification of the
legal aspect of a maritat relationship based on mutual equality of spouses
and families-in-law. In the latter sense, therefore, parenteel (ouderrechtelijk)
has been rendered as 'jural equality' in the present translation. - Ed.]
80 Van Vollenhoven on Indonesian Adat Law

Surviving traces of father-right, on the other hand, show up in

the old-fashioned patemal 'clan' or kawöm, (pp. 62, 68-9) com-
prising the male descendants in the male line of a common ancestor,
whose homesteads may therefore lie dispersed in all directions. They
are the people who, in cases of insult, injury or manslaughter (very
rarely of a woman) are responsible for taking revenge, for protecting
against revenge, or for jointly providing blood-money (p. 77). In view
of the numerous marriages between members of different kawöm this
patrilineal survival may bring an Acehnese into sharp conflict with his
sense of kinship and affinity with the relatives of his mother or wife,
resulting from the prevailing bilateral system (-).
Moslem influence concems the formal conclusion of marriages and
the ways of dissolving them.
Kinship and marriage in Acehnese law are certainly not private
matters: the village is involved in marriages and repudiations, and has
some responsibilities (-) for the care of orphans (p. 63) - which is
[178] also the concem of the chief.
As stated above, descent is along both the male line and the female,
with this provision, however, that the family line (we would say: the
sumame) is reckoned through males. Consequently, in the family
graveyards near the villages patemal kinsmen lie side by side with the
married and unmarried daughters of the women of the family, while
the graves of spouses are normally not found together.
However, great importance is attached to matrilineal descent; the
people of the west coast, in whom there is a good deal of blood of
female slaves and foreign women, are looked down upon (p. 61).
Legitimate are the children of a lawful marriage and, formerly, the
children of a master by his female slave and concubine; all other
children are illegitimate. The latter are not, partly as the result of
contraception, abortion or infanticide, very numerous among the Aceh-
nese. Means of recognizing or legitimizing illegitimate children are
unknown. Legal adoption of children or adults, exchange of sons, and
adoption of parents, are unknown. Children bom of the not uncommon
marriage of an Acehnese to the female slave of another (anök möih,
'children of gold', i.e. of property) were free under Acehnese adat law
(but not under Moslem law), although their ancestry would be re-
membered for a generation or two. Children of married slaves were of
course slaves. In conformity with Moslem law a concubine (gundek)
was only regarded as legally married under Acehnese adat if she was
the slave of her master. The legality of this marriage was based not on
V Aceh 81

a marriage contract but on the husband's right of ownership. Legal

concubinage has vanished now that slavery has disappeared in Aceh.
Illicit extra-marital cohabitation (usually by high-ranking men) is not
excused in indigenous law. Illegal concubines are also called gundek.
In spite of this, the illegitimate children of important persons, for
instance, those begatten of a fifth wife, were often virtually considered
to be legitimate.
Blood-relatives are in Acehnese called wareh, after the Arabic term
for heir (wärith), but without implying any rights of inheritance.
Matemal and patemal blood-relatives are sometimes classed tagether
under the composite term wali-karöng (our 'family' in wider sense),
(179] which implies, of course, only a kin-group and not a jural
community as defined on pages 43, 48. There is no collective term for
affinal relatives. There are a number of kinship terms which throw
some light on kinship classifications in earlier times and which will be
discussed later. Sometimes a person's near patemal relative is called
his or her wali. The term derives from Moslem law, but its meaning
has changed. In popular Acehnese usage it never implies the line of
direct ascendants (father, father's father, etc.), or direct descendants
(son, son's son, etc.), or one's brothers, but the male patemal relatives
excluding those three groups. The widespread habit among writers on
Moslem law of calling such persans agnates (i.e. the Moslem wali - a
legal guardian or woman's marriage agent - or the Moslem c a§abät,
male patemal relatives), cannot pass muster. In Roman private law,
from which the term is borrowed, agnates include females as well as
males; furthermore, agnation involves not only the question of descent,
but also juridical ways and means in connexion with potestas and
manus. Normally, the wali or bride's guardian is the patemal relative
recognized as such by the religious law, as a rule her father or her
brother, that is the very person who is not her wali in adat usage.
A person's near matemal relatives are his or her karöng, that is the
ascendants and brothers, as well as the other bilateral male and female
relatives on the mother's side.
Blood-relatives on the father's side who do not fall under the adat
classification of wali have no distinctive generic name. Nevertheless, as
said before, all blood-relatives from both mother's and father's side are
classed tagether as wali-karöng.

M arriage Law
The rules of Islam predominate in Acehnese marriage law; marriage
82 Van Vollenhoven on lndonesian Adat Law

customs, however, are govemed by indigenous usage.

Probibited marriages are mainly those prohibited by Moslem law.
[180] Marriages of men with women of a higher dass, for instance,
the marriage of an Acehnese commoner with the daughter of a sayyid
[descendant of the Prophet], or of a freed slave with an Acehnese
woman, are permitted only with the consent of both the woman and
the appointed wali. The converse procedure meets no objection, as
Islam (like British nobility) takes the view that a man cannot make a
misalliance. Definitely prohibited are marriages (a) between the near
relatives mentioned by Moslem law, (b) of a man already possessing
four wives, (c) with a woman within the iddah period 1 2 following the
husband's death or the dissolution of the marriage during his life, and
after her confinement if she was pregnant at the time the marriage was
terminated, and (d) of a man with his thrice-repudiated wife, unless
she had been married to another in the meantime.
There is no fixed marriageable age. Men usually marry when they
are sixteen to twenty years old; girls are married (and used as wives,
though with great care) at the youngest possible age, when they are
eight to ten and sometimes only seven years old. Not prohibited, but
considered undesirable in indigenous eyes, is the marriage of a girl
before the betrothal of her elder sister, or of a widow or widower
before the 'planting' of the deceased spouse's tombstone. Prohibited,
however, are marriages opposed by the village headman for being
against the interests of the village. (-)
Child marriages, that is marriages contracted at a very early age, but
not consummated untillater, are rare but do occur.
Individual freedom of marriage (subject to the above-mentioned
right of the blood guardian to resist a marriage for reasons of dass
distinction) is a first principle under the religious law, and the personal
consent of the parties is essential once they are of full age 1 3 (otherwise
their consent or refusal is of no legal consequence). Besides this the
Moslem law of the Shafiites gives the father or father's father the right
[181] to overrule a woman (whether of full age or not) who is, or
does not deny being, a virgin; as weil as the right of overruling boys
under age, though this is much less frequently exercised. Contrary to
Shafiite law, however, there are (were) two other circumstances in
which compulsion could be applied in Aceh. First, a young virgin
without ascendants, who according to Shafiite law could not freely
marry until she had attained full age, could be forcibly restrained by
another blood wali after a 'change of rite'. 14 Secondly, in tbe past a
V Aceh 83

judge (ahief) could compel a man proved to be responsible for a pre-

marital pregnancy to marry the woman (though this was clone much
less often than in Java).
The celebration of a marriage in Aceh is governed by Islamic law,
owing to - or at least connected with - the fact that the validity of
marriages was submitted to the kali, whose judgment was based not on
indigenous institutions but on the rules of Islam (p. 76). But in
addition to this principal formality there is a multitude of indigenous
customs and adat prescriptions: forecasts to ensure good fortune
(divination); the functions of the respective parents; the activities of
the respective village authorities or of the common village authority
(pp. 63, 80); the solemny presented betrothal gift; the pantang inhibi-
tions (p. 74) operating (though less stringently nowadays) from the
time of betrothal between the son-in-law and his parents and the
girl's parents; the betrothal period; the festive nocturnal procession to
the house of the bride after the marriage has been celebrated according
to Moslem law, as weil as other customs observed subsequently.
In accordance with the principles of Islamic law a marriage is there-
fore regarded as a contract based on offer and acceptance (ijab and
kabul, p. 12)- an anomaly in the system of Acehnese adat law, which
has no separate law of contract. Parties to this contract are, on the one
side, the groom, or if he is a minor his father, father's father, or
guardian; and, on the other, the bride, who in a firstmarriage is almost
always a minor. A wali or marriage agent must, however, always act on
behalf of the bride. He is either the blood wali (father, grandfather or
other patrilineal blood relative listed in order of priority in Moslem
[182] law), or the kali (religious judge) acting as emergency wali or
official marriage agent for brides of full age who have no blood wali,
or, finally - in abnormal cases - the male person appointed as
deputy wali by a groom or a bride of full age who has no blood wali.
As a rule the blood wali Iacks the knowledge required for the celebra-
tion of the marriage, and Moslem law therefore permits him to appoint
a substitute for this purpose. But Acehnese adat law does not permit the
appointment (tafJkzm) of any person other than the Moslem officiant
of the bride's village (p. 63). Also the person appointed as emergency
wali can be no other than this töngku mönasah. lt is, however, an
Acehnese peculiarity that the person empowered to be the agent of a
virgin under age on account of the 'change of rite', or appointed for
the rare occasion of the marriage of a virgin of full age, is not the
village töngku but the kali. A woman is considered to be without a
84 Van Vollenhoven on Indonesian Adat Law

blood wali not only when she has no such relative, but also when a
competent blood wali does exist but is absent or unwilling to act.
Formerly, when unsafe and bad roads (pp. 78-9) frequently prevented
the blood wali from reaching the marriage candidates, or tlhe marriage
candidates from reaching the kali, people were more often married by
a deputy wali than by a kali. Although nowadays the roads are im-
proved, the number of kali seems to have decreased (p. 77), so that
the position has probably not changed very much. At Kutaraja, where
there is no kali (pp. 69, 76), non-observance of the rule is presumably
the generat practice.
The celebration of the marriage (pökatib, pönikah, pökawen) by the
village töngku (whose remuneration varies) usually takes place in the
bride's village in the presence of the headman (who receives some
remuneration - p. 64) in the village hall or in the house of some
other Moslemscholar (malern); it seldom takes place at her own house.
The conditional repudiation immediately after the celebration of the
marriage, which is such an important and regular custom in Java, may
in Aceh be dispensed with (p. 79). There is no fixed venue for a
marriage by the kali. Both kali and töngku are sometimes themselves
in need of instruction (pp. 63, 67). During the function everyone
present sits on the ground instead of standing.
The validity of the marriage, including marriages at which someone
other than the töngku or the kali has officiated (in which case such
officiant is punishable under adat law), is judged solely by the rules
of Moslem law. These rules require: the absence of marriage disabili-
ties; the assistance of a legally authorized wali; the presence of two
[183] lawful witnesses (in Aceh usually two pious men, löbe, as
professional witnesses from the bride's village); offer and acceptance
in terms whioh unequivocably mean marriage; and the absence of
special conditions. No mention need be made of a marriage gift. The
busband is under Islamic law contractually bound to make his wife a
marriage gift, but if the amount is not specified in the marriage
contract it will be determined later in accordance with local custom
and the wife's social status (p. 61).
The marriage relationship has this peculiarity (p. 79) that, after
about half a year, the busband (linto) follows the wife (prumoh), that
is, moves in with her, in her own house or on her family premises; or
at least - if their parental (matemal) villages are far apart - he goes
to stay there periodically, so that he may express with the adat
courtesies expected from him after his marriage that he has accepted
V Aceh 85

his in-laws' village as his home. Dignitaries like chiefs must of course
continue to live in their own area, and if they have to Iook for a wife
of their own standing in some other place, they are therefore unable to
pay her more than an occasional short visit. Prospective village head-
men should preferably marry within their own village, but if they do
not, they are in exceptional cases permitted to take their wives to their
own village. Under adat law it is therefore not only impossible for a
busband to force his wife to follow him outside her place of residence,
but she is not even allowed to do so of her own free will (p. 60).
A busband is not obliged to have marital intercourse with his wife, at
least not under Moslem law; but if he has more than one wife he is
obliged to pay each of them regular visits of the same duration. Under
the same law he may, within the Iimits of propriety, demand conjugal
intercourse and obedience from his wife; but he may not burden her
with domestic chores unless she agrees, whioh she usually does. The
blood wali mentioned earlier merely has to assist with the celebration
of the marriage; he has no authority over the woman, not even if she
wants to take action against her husband, and he cannot, therefore, be
called a guardian.
lt would be interesting if an older form of indigenous marriage
could be clearly recognized behind this Moslem marriage, but the
traces of the past are no Ionger distinct. As a survival of a patrilineal
stage with its characteristic marriage-by-purchase, there is the bride-
wealth discussed below, which formerly must have been a 'purchase
[184] price'. Closely allied to this marriage concept is the 'substitution
marriage', still expressed in the condition that, if the 'purchased' wife
dies within the 'bridewealth period' (see below) the deprived husband
is offered, after the grave-stones have been planted, a sister or other
closely related substitute by her family. Such a substitution marriage
(pulang balei!) must again be solemnized in Moslem fashion, but of
course no new 'purchase price' is paid (although it is mentioned as
a mere formality). If this marriage does not take place the husband
is refunded half the 'purchase price', the so-called widower's due
(hak balee). If, however, the wife dies after the bridewealth period,
the busband is not considered to have been deprived of his due,
and there is no question of substitution. There is, furthermore,
the even more faded vestige of the right of the husband's heirs
to inherit the 'purchased' woman. If the husband dies during or
after the bridewealth period - which is therefore irrelevant - his
male blood relatives or wali offer the widow (if she is still eligible) a
86 Van Vollenhoven on Indonesian Adat Law

new marriage, either with one of them or with a candidate selected by

them, preferably from their own family. Under present-day adat law
she is, however, not only absolutely free to decline such a succession
or brother-in-law marriage (levirate, hence without 'purchase price'),
but to marry any other man or not to remarry at all. Presumably also
related to an older patrilineal constitution of the Acehnese family is
the claim to a deceased man's children made - as a matter of for-
mality- by his wali.
The law of matrimonial property in Aceh concems in the first place
a number of gifts made before, during or after the contracting of the
marriage. The principal gift is the bridewealth (jinamee),15 which is
nowadays altematively reported to be due to the bride's father (or
parents) or to the bride herself. Payable by the husband, the gift is
apparently a fusion of some old-Acehnese 'brideprice' (purchase price,
due to her owner-father), and the 'bridal gift' of Moslem law (due to
the bride herself - p. 84). The amount of the bridewealth depends
[185] either on mutual agreement or on the social standing of the
bride. Under adat law this is fairly precisely laid down - at least for
virgin brides - for each of the different social classes (it used to
average between 25 and 100 dollars; how much now?). Forthis reason
it is seldom mentioned in the marriage contract of a woman marrying
for the first time. The amount is usually paid (put down) by the
bridegroom when the contract is being concluded. The custom in some
areas of retuming one-half of the bridewealth to the busband is only a
formality, for within a few weeks this part is again received by the
bride (if she is still a child, her parents will of course use it, actually
or ostensibly for her benefit). Yet it is not uncommon for important
folk or their daughters actually to give back even the full bridewealth
after the marriage contract has been concluded. lt seems that refund of
half the bride-price to the bridegroom may be interpreted as a (ficti-
tious) payment enabling the parents to buy from the busband the
privilege of retaining their interest in the 'sold' daughter; or, indeed,
of allowing them to keep her as a child-at-home for a period of which
the length increases with the amount of money refunded. However, the
legal consequences of such refunds nowadays also occur where the
refund itself, even as a formality, has fallen into disuse. The 'bride-
wealth period'- the period of the refunded bridewealth would be a
more appropriate name - will shortly be discussed in another context.
Prior to the bridewealth the bridegroom pays the betrothal gift
(tanda kong narit, 'token that the given word is binding'), for instance,
V Aceh 87

a valuable gold ring or an omament for her hair. This is for the bride
herself and remains her property when the marriage goes through. For
this reason the term 'betrothal gift' seems to be more correct than
'betrothal pledge', which might imply that it must be retumed after the
conclusion of the marriage. Should she be responsible for breaking the
engagement she has to retum the gift; in the opposite case it remains
hers.
Apart from other cash gifts (such as the monthly biaya), or gifts
of clothes (sönalen), the defloration gift or morning-gift (no special
term) may be mentioned - a girdle, bracelet or ring - which also
becomes the property of the wife. All personal ornaments of the
spouses, except the two mentioned above and the wife's essential
clothing, are regarded as the property of the husband.
[186] Besides these marriage gifts, the law of matrimonial property
involves, in the second place, the eamings of the spouses, and what
they bring into the marriage. Everything the husband brings into the
marriage (his patrimony, atra bak ku) remains his property, even if it
takes the form of gifts to his wife (excluding only the above-mentioned
betrothal and defloration gifts). Everything the wife brings into the
marriage (her patrimony, mainly such property as she obtains at the
end of the bridewealth period, the two gifts, and often the bridewealth
as weil) remains her property. Husband and wife keep their respective
properties carefully apart, and take good care that they have the
necessary witnesses. In areas where the wife usually assists her busband
in his livelihood, such as agriculture in the upper regions of Aceh
Major (and in the dependencies?), all property jointly acquired during
the subsistence of the marriage becomes their common property (atra
or laba siharökat; atra or laba möcarikat); upon the dissolution of the
marriage this common property is divided into two equal parts. What
each spouse acquires during the marriage through individual efforts or
from personal sources (e.g. inheritance) belongs to him or her respect-
ively (individually acquired property - no special term), although it
does sometimes happen when a marriage is terminated that property so
acquired is nevertheless regarded as having been jointly acquired.
The law of matrimonial property concems, in the third place, the
maintenance of the wife during the two periods into which in Aceh
her married life is divided. During the first period, the 'honeymoon'
(janji jinamee, 'bridewealth period'), the woman is according to adat
law still supported by her parents (by whom if they die?), and the
busband is obliged only to bring her a monthly 'gift' in money (biaya)
88 Van Vollenhoven on lndonesian Adat Law

tagether with a number of other small presents in cash or meat as

prescribed by adat (-). The length of this period depends, as explained
earlier, on the amount of bridewealth: a full year for every bungkay
(thirty guilders' worth) of gold or, more accurately, for every one-half
bungkay of the refunded portion of the bridewealth. The end of the
bridewealth period is solemny proclaimed (p. 73) if her parents, or
one of them, should still be alive.
[187] During the second period, unless the woman foregoes her
rights (as she often tacitly does), the busband is under Islamic law
obliged to provide his wife with food, clothing, housing and service
commensurate with her social class, which as a rule is not above his
own. The costs of the first confinement are borne by the parents of the
wife; the responsibility for planting the tombstones rests either upon
her parents or on the busband himself.
The dissolution of the marriage - comparatively rare in Aceh,
owing to the woman's independent status and her matrilocal resi-
dence - is again purely a matter of Moslem law (-). The three
methods therefore are: repudiation (talöek) by the husband, the buying
(redemption) of his right of repudiation (töbö'ih talöek) by the wife,
and divorce (pasah) by the court.
A busband may repudiate his wife without legal grounds, and the
repudiation may be twice revoked (within the iddah period - p. 82)
and repeated by him. In Aceh the repudiation is usually uttered three
times in a single pronouncement and such triple repudiation (which is
not in conflict with the religious law) then becomes immediately
irrevocable. This kind of repudiation is rare, and usually based on
continuous and irreconcilable domestic disagreement (it is often re-
quested by the wife herself, gently - or not so gently - pressing her
husband). Repudiation on account of having wearied of the marriage
is extremely rare in Aceh, except among chiefs and royalty who have
married women of the lowest social dass in order to avoid living in
actual solitude (these legitimate wives are often wrongly called gundek,
concubine - p. 80). Such a repudiation is expressed symbolically by
giving three pieces of betel nut in succession, after which the Moslem
officiant of the woman's village will be notified (p. 63); or it is done
without any formality, when it must be followed by a Ietter of repudia-
tion (surat talöek) from the busband to the töngku of a neighbouring
village, requesting him to report the triple repudiation to the authorities
of the woman's village. Because of the regular use made of the triple
repudiation the legal question of whether or not a repudiated woman
V Aceh 89

[188] should be regarded as a wife during the hundred-odd days of

the period of revocation will only seldom arise, but in view of what
Moslem law prescribes with regard to inheritance (Juynboll, 1903:
254), the answer might be yes. Revocation (rujuk) is therefore rare in
Aceh, and the rules pertaining to it are little known. But a busband
may not re-marry his thrice-repudiated wife unless she had been
married to another in the meantime. Conditional repudiation of a wife
by her busband is permitted under Moslem law. It occurs also in Aceh,
but certainly not as a regular custom at the celebration of virtually
every marriage, as it is in Java(-).
Likewise, the buying of the repudiation (based on the idea that the
busband 'owns' three repudiations and can sell his right to his wife) is
only rarely necessary. It conforms to Moslem law, but occurs only in
the lower social strata. According to local usage its normal price is
twice the bridewealth, and must be paid by the wife or some other
person before the dissolution of the marriage can become effective.
The buying of the repudiation bars any revocation, and therefore
permanently dissolves a marriage [threatened by the husband's repu-
diation].
Pasah, divorce by a court of law (i.e. by the kali with the approval
of the chief, and nowadays by the government musapat court), may be
granted at the instance of one of the parties (in practice, the woman;
for a husband, repudiation is a much simpler method). It can be
obtained also in the absence of the husband. It may be granted on a
limited number of grounds (e.g. on the rare occasion when a woman
can prove her husband's inability to provide for her, and that she
herself has also been unable to make ends meet); but the kali same-
tim es exceed these Iimits when granting pasah.
A woman whose marriage has been dissolved in any of these ways,
or by death, is called balee (a term with a wider connotation than
'widow' with us); the same term applies to a man in a similar position
(cf. hak balee, p. 85).
If, as regards children, the Roman distinction between impuberes
and minores is applied, only 'impuberty' (childhood) would be known
to Acehnese law, and not the more advanced stage of minority [see
note 13, p. 279]. Children legally under age are divided into young
children (below the age of seven to ten), and older children.
Children are in the care of both parents, though in practice the
mother and mother's family usually have a greater influence on their
education than has the father, who is often away from home (pp. 79,
90 Van Vollenhoven on Indonesian Adat Law

84-5). Motherless children usually stay with their mother's mother, and
[189] are cared for by her and their father; or if the mother's mother
is dead, they live with their father and under his care. During the
mother's lifetime, and afterwards, the father is always entitled to take
his children, but rarely does. Fatherless children not of full age are
usually, with their property, in the care of their mother. If they are
still young they stay with her when she remarries, but if they are older
they may choose to stay with their father's family. Only in a leviratical
marriage (p. 86) can the step-father exercise any patemal authority
over them. Children without parents are cared for, with their property,
by their father's brothers, unless the chief, induced by greed, takes
over the care of their property; in that case, however, the children
themselves are actually left in the care of their family. Whether this
'caretakership' of the chief (to compare it with State guardianship
would be unduly flattering) nowadays still exists in Aceh is uncertain.
Guardianship or supervision by Moslem officiants is entirely unknown
to adat law. Finally, children whose parents' marriage has been dis-
solved go as a rule to their father, who therefore has a better right
than Moslem law would have granted him.
If in all these cases the children concemed are young, their patemal
male relatives or wali (see p. 81, above) will- both upon the father's
death and when the mother remarries - stage a mock effort through
the village headman to obtain control over them and their property,
and the wali continue to keep a watchful eye after the mother re-
marries, unless the second husband happenstobe a levir (-).
Indigent orphans receive some support from the pitrah collections
(pp. 63, 69).
Guardianship over chiefs too young to rule (p. 66, above) involves
not only the responsibility for their person and property, but also the
exercise of govemment on their behalf. Provisions for this are there-
fore always made. Such political guardianship, sometimes by tetrarchs
(pp. 65-6), constantly leads to intrigue and attempts at usurpation.
[190] The legal coming of age ('majority') coincides, it seems, with
actual puberty, and therefore varies from one individual to another;
marriage may precede this stage (p. 82). But so long as a person of
full age lives unmarried in the house of his parents he remains of
course more or less in their care and under their control. Unmarried
young men spend the night in the village hall. A newly married
daughter continues to live in her parents' house or on their residential
premises remains in their care until her 'send-off' (pöngkleh) at the
V Aceh 91

end of the bridewealth period (pp. 73, 87). She is then released - at
least for the duration of that marriage. At its termination she presum-
ably retums to the care of her parents if she has no children.
There are no rules prescribing how a guardian should account for
his administration. There is much corruption in such matters, especially
when the chief hirnself has been in charge of affairs.
There is no provision for the care of property belanging to absentees
without relatives to look after it (-). Such property only too often
falls under the control, that is, into the pockets, of chiefs who also in
former times were only too eager to appropriate abandoned Iands (wet
rice fields or plantations).

Law of Succession
Things considered to be heritable are, on the one hand, the official
functions of the deceased and, on the other, his material assets after
debts owed to or by him have been paid.
Nearly all official functions in Aceh (pp. 62, 65-7) are hereditary.
The heir is the eldest capable son; failing sons, the nearest male blood
relative (brother, etc.), and sometimes a female blood-relative (p. 66).
An altemating succession - whereby the head of branch A must be
succeeded by a member of branch B of the same family, and the latter
again by a member of A, and so on- is reported only from the self-
goveming chiefdoms of Mörödu. Questions of who the first eligible
blood relative is, and whether he has the necessary qualities - i.e.
whether he is intelligent enough, and not addicted to opium, or
suffering from other moral or physical disabilities which would render
him unfit - are sorted out by the most influential people of the
federation, chiefdem or village concemed. In respect of the office of
kali, which always requires some degree of literacy, the demands of
ability would, of course, more than in the other offices override the
[191] principle of heredity, and the chief would see to this. As regards
the headships of mukim divisions and lesser offices, the chief had the
right to appoint and dismiss functionaries, and not infrequently asserted
his power. The chiefs themselves, despite their hereditary rights, used
to covet a deed of recognition (sarakata - p. 78) from the sultan as
an embellishment of their office, and they were prepared to pay money
for it (p. 66).
For Aceh Major it has now been laid down (ISb. 259/1899, part X)
that native authorities are appointed by the Administration, 'if possible
with due regard to old-Acehnese institutions and customs'. For this
92 Van Vollenhoven on Indonesian Adat Law

purpose our administrative offices keep a record of the genealogies of

the chiefs and headmen. For obvious reasons this adat system of
selective heritability serves us well. There is no such provision with
regard to the Moslem adviser appointed by the Governor to the
government musapat court in Aceh, whose function is comparable with
that of the kali or principal kali (p. 77).
Should the successor of a chief, mukim headman or village headman
be a minor, he holds office under the supervision of a male blood
relative. Formerly this happened as a matter of course on account of
the latter's guardianship (p. 90). Nowadays the Administration ex-
pressly appoints him as an acting-chief, etc. As regards the [religious]
office of village töngku such acting appointments are (were) highly
exceptional.
A deceased person's body is in a certain sense also inherited, in
order to bury it in the burial place (bhöm) of either the wife's or the
man's family, depending on the circumstances. But if the deceased had
on his deathbed expressed his last wish (pönösan) as to the place
where he desired to be buried, this was usually respected.
The division (and administration?) of the material estate (pösaka)
is held over until all principal matters connected with burial, especially
the 'planting' of the tombstones, have been completed, that is, often
until the forty-fourth or hundredth day. If the deceased was married,
the estate includes, in addition to property brought into the marriage
or individually acquired, one-half of the jointly acquired property
mentioned earlier (p. 87); the other half is not inherited but merely
handed over to the surviving spouse as his or her property. The
division of the estate takes place only after payment of the deceased's
debts, which may necessitate the conversion of his assets into cash.
These debts include unpaid funeral expenses, which for men are not
[192] seldom paid by the widow, and in the case of a woman dying
within the bridewealth period usually by her parents (p. 88). Also
included are often some debts to Allah, that is, money for a substitute
Mecca pilgrim; or religious fines (padiah, usually paid in rice) for
having failed to attend Moslem services, which fines are handed over
to the mosque officials or to the pious or learned 'indigents' (löbe,
ulama). If the estate is insufficient, or barely sufficient, to meet the
debts there is no inheritance; the remaining debts are, it seems, re-
garded as the creditors' loss, and are not transferred to the heirs. The
blood relatives therefore need no legal protection against such debts.
What remains of the estate after the debts have been deducted and the
V Aceh 93

outstanding claims collected is nearly always inherited on intestacy,

and only very rarely in terms of a last oral or written will (wasiet)
according to Moslem law. Such a will may dispose at the most of one-
third of the net estate in favour of persans other than those named as
intestate heirs under the religious law. Nevertheless, it has been reported
- of chiefs for instance - that sometimes an entire estate is bequeath-
ed to a personnot so entitled (e.g. an illegitimate son by a concubine-
p. 80) by means of a European testamentary disposition - the
validity of which, however, is highly doubtful. In view of the rarity of
wills there are of course no adat rules concerning any inviolable legal
portions.
The heirs on intestacy (sometimes called wareh, in an entirely
different sense from wareh = blood relative - see p. 81) are, with
one important exception (below) those listed by Moslem law.
Roughly indicated they are,
a) if there are sons or sons' sons: the surviving spouse, the father
(failing him, the father's father and father's mother) and the mother
(failing her, the mother's mother), all these being 'Koranic heirs' who
cannot be excluded; the residue to be divided among the sons
(the c a~abät proper) 16 and their sisters if any (c a~abät by legal inter-
pretation), or (failing sons) among sons' sons and their sisters, with a
daughter or son's daughter getting one-half of a son's or son's son's
share;
b) if there is a father but no son or son's son: the surviving spouse,
[193] the father and the mother (as under a) who cannot be excluded,
and the brotherless daughters as ordinary Koranic heirs; of the residue
either two-thirds goes to the father ( a~abah proper) and one-third to
the mother (ca~abah by legal interpretation), or all of it to the widower-
father;
c) if there is also no father: the surviving spouse, the father's parents,
the mother (failing her, the mother's mother), and the brotherless
daughters and son's daughters as Koranic heirs; the residue to be
divided among the brothers (c a~abät proper) tagether with the father's
father if alive (being "a~abah proper as well) and the sisters if any
(ca~abät by legal interpretation), with a woman again obtaining half a
man's share;
d) if there are also no brothers: the surviving spouse, the father's
parents, the mother (failing her, the mother's mother) and the brother-
less daughters and sons' daughters as Koranic heirs; the residue to be
divided among the father's father (ca~abah proper) and the sisters
 94 Van Vollenhoven on Indonesian Adat Law

(caijabät by legal interpretation). If, failing also the father's father,

sisters, or patemal collateral relatives, or when (failing only the father's
father, daughters and sons' daughters) the sisters act as Koranic heirs,
then the unapportioned residue is (in the absence of a lawful Moslem
'treasury') distributed equally among the Koranic heirs (excluding the
surviving spouse).
lf there are nei ther c a$abät nor Koranic heirs, the estate is (was)
appropriated by the chief. The village therefore has no right to inherit.
The complete rules of Mobammedan intestate succession are described
by Juynboll [1903] and Sayyid Usman.17 (-)
The above-mentioned heirs receive in fact the shares allotted to them
by the religious law. The surviving spouse therefore obtains, besides
the moiety now available to him or her of the jointly acquired property
(pp. 87, 92), also his or her legal portion of the deceased's estate.
In the distribution of the estate some account is taken of gifts
(pönulang) made by the deceased during his lifetime to his children
- or in rare cases to other heirs - so that those who have received
proportionately more gifts get less from the deceased's estate. For this
reason it is ceremoniously stated how much a married daughter has been
allotted when she is 'sent off' at the end of the bridewealth period.
[ 194] The one significant deviation from the Moslem law of intestate
succession is the right of inheritance of the spouses. Under Moslem law
the widow or widower cannot be excluded as a Koranic heir; according
to Acehnese adat law, however, the spouses do not inherit from one
another if either dies within the bridewealth period, when the newly-
married wife lives at her parental home (p. 84f.). Should the woman
die within this period, the busband can only claim either one-half of
the bridewealth (the other half having ostensibly been refunded -
p. 86) or a near relative as a substitute for the deceased wife without
additional payment (p. 85). Should the busband die within this period
the wife is paid the value of the (refunded) half of the bridewealth
(now therefore regarded as a gift to her personally - p. 87), while in
numerous cases, even if the busband dies at a later stage, his wali will
offer her a new busband in exchange for the deceased.
Only very insignificant estates are wound up by the members of the
family among themselves. 18 In every other case it is done by the chief
(even today?), who is informed about the available assets by the village
headman and its Moslem officiant, and by the parties concerned. The
chief has the assets valued with subtraction (and payment?) of debts,
after which he deducts (also today?) ten per cent for hirnself as 'estate
V Aceh 95

duty' (hak pra'e- p. 68), of which a small amount is given later to

the kali or [other] scripturist and to the two village authorities. The
chief then proceeds to instruct his kali, or some other scripturist in his
service, to assess the heirs' portions in terms of money (p. 76). After
this it is the task of the two village functionaries to see that, with the
chief's authority and in accordance with these assessments, the posses-
sions of the deceased are fairly allotted to those entitled to them. Rice
fields and weapons are preferably given to men, houses and residential
plots to women, and, where possible, all allottments are made in
accordance with the wishes expressed in extremis by the deceased
(pp. 73, 92). Public auction of estates is unknown, and there is no
generat rule for any distribution among creditors if liabilities exceed
assets (pp. 78, 92).
Estates of non-Acehnese dying in Aceh without having established a
[195] family there were summarily appropriated by the chief because
it was, or was supposed to be, too difficult to trace the heirs. Likewise,
legacies due to absent Acehnese, and the estates of Acehnese who died
without legal heirs (above) often found their way into the pockets of
the chief.

Land Law
This heading deliberately speaks of land law (that is the objective law
relating to land and water), and not of the law of things. A division
between real and personal actions, or between rights in rem and rights
in personam (-), is as unknown to Acehnese adat law as to any other
adat law in our archipelago. What is known instead, in Acehnese as
well in most other adat law, is the distinction which emerged already
in our discussion of the indigenous administration of justice (p. 72f.),
that is between rights in respect of land (and water), the law
dealing with chattels and obligations, and, sometimes, the law of
wrongs.
An analysis of the objective law relating to land and water in the
Acehnese law area must first of all pay attention to the right of avail, *
which has no specific indigenous name. lt is the right of an indigenous
jural community to control and utilize a certain expanse of land (both
cultivated and uncultivated land) or of water for the benefit of its own
members and of outsiders (the latter often having to pay a levy). This
right is usually coupled with the community's liability for any incidents

* [For an explanation of this technical usage, see note 2, p. 278 - Ed.]

96 Van Vollenhoven on Indonesian Adat Law

occurring within this area. Uncultivated land may here mean unin-
habited land (rimba) covered with primeval forests or wild grass on or
near the mountain slopes or watersheds; or the forbidding wild tracts
(ranto) which on the west coast separate one settlement from another;
or the thin forests in the lowlands; or, finally, the untilled plains
(padang) which in the lower and not yet fully occupied regions often
surround the complexes of village fields (p. 62). In respect of rimba,
[196] ranto, forests and water resources, a right of avail as defined
above exists in that a chief in control of an estuary in the dependencies
can exercise this right as far as the 'blue mountains' of Gayaland and
Alasland (boundaries often not being accurately determined until after
a conflict arising, for instance, from making a pepper garden, or
building a village, or finding a corpse). The gathering of wood, rattan,
latex, resin, bees-nests, honey, wax, fruit and other forest produce, as
well as mining and digging, hunting and fishing, and the clearing of
virgin land, are allowed only with the knowledge or permission of the
chief - hence, for instance, his share of a hunter's bag (p. 68). As
regards the forest belt stretching between Gayaland and Aceh (p. 56)
no right of avail or any other land right is being exercised; there is a
recognized boundary only for the purpose of allocating liability for
wrongs.
In Aceh Major the right of avail of the village over its surrounding
plains (padang) shows signs of fading away; in the first place - as has
happened in the Priangan [West Java] - because not only the
members of the village concerned, but also those of the other villages
of the neighbourhood (i.e. of the same mukim) can, without asking
permission, reclaim this land (they rarely do so) or use it for grazing
or making gardens; and further, because the responsibility of these
villages for untoward incidents on their padang seems to have dis-
appeared from the adat law - even though, until recently, villages
throughout Aceh, as well as chiefdoms in the dependencies, were held
collectively responsible (and sometimes fined) by our administration
(see Law of Wrongs, below). It is not clear whether the Government
will in the future take this right of avail into consideration in the event
of European mining and forestry activities. The wase paid locally by
the Royal Dutch Oil Company and by a timher company might be
interpreted as a recognition of the right of avail of [the chiefdom of]
Pörölak (p. 68). Contrary to what one finds in Bali, for instance, there
seems tobe as little left here as in West Java of a weakened or dormant
right of avail over lands cultivated and held in adat-ownership [p. 97,
V Aceh 97

footnote]. However, the fact that land transactions are considered to

be matters concerning the village is probably a remnant of this right.
Likewise, the peculiar right of all villagers freely to graze their live-
stock on the fields (blang) of their fellow villagers during the 'season
of the open fields' [i.e. the period February-May separating the end
of one agricultural season from the beginning of the next] may point
[197] to a village right of avail which preceded the reclamation of such
lands. This grazing right does not prevent a field-owner from using his
land for secondary crops in the meantime, provided he puts a fence
around it as a protection. (-)
One wholly irregular variant of this right of avail is the right which
the sultans used to arrogate to themselves in respect of a strip of land
seven fathoms wide on both sides of the river Aceh. On this strip the
sultan suffered his subjects to build and cultivate (apparently without
having to ask his permission) on condition that the land could never
become their adat property and that he could at any time terminate
their tenancies at will. Nowadays, however, these strips of land (tanoh
raja; also called waköeh because they were partly excluded from
normallegal commerce) seem tobe free from this encumbrance.
(-)
Though there still are extensive virgin lands in the undulating high-
lands of Aceh Major and the dependencies, in the sparsely wooded
lowlands of Aceh Major, in the more level parts of the highlands and
in large tracts along the north and east coasts, virtually all land has
been taken up for the production of rice, sugar cane, pepper, betel nuts
and coconuts. lt is here in particular that we find the right of adat-
ownership * in respect of land and water, a right second in importance
only to the right of avail. (-) 'Ownership', because in view of the
[198] concepts and state of development of adat law this right fulfils a
function comparable to that of ownership in westem law and legal
thought; 'adat-', to avoid the erroneous impression that this right has a
westem connotation or corresponds to 'dominium' in Roman law (-).

* [Van Vollenhoven uses the term inlandsch bezitrecht (Iit. native right of
possession), adopted from section 62 of the Regeringsreglement of 1854, and
points out on page 198 that the predicate is necessary because, substantively,
this right differs from both possessio in Roman law and eigendom (owner-
ship) in Dutch law. For much the same reasons the term has here been
rendered as 'adat-ownership' (hyphenated in order to stress its distinctive
connotation and cultural context). In the next (paraphrased) sentence, there-
fore, 'ownership' and 'adat-' have been substituted for respectively 'bezit-
recht' and 'inlandsch' of the original text. - Ed.]
98 Van Vollenhoven on Indonesian Adat Law

To the Indonesian this adat-ownership represents the most comprehen-

sive, and after the right of avail the strongest conceivable, title to land.
(--)
Adat-ownership (only its name, milek, is of Arabic-Islamic origin) is
the right to treat a thing as your own property. In respect of land it is
restricted by the [communal] right of grazing (p. 96f.) and the right of
first option (below, p. 100). lt does not, however, involve the liability
to pay tax in labour or money (as it does in Java); nor is village
membership a requirement, for it is possible (though rare) for a person
to have rice fields in another blang [cultivation area] than that of his
own village. The things subject to this right can include wet or dry
fields (rice fields, etc.), plantations, residential plots and crops (which
may be owned even though the cultivator does not hold the land
itself in adat-ownership, as on the padang or on the riparian waköeh
[199] strips mentioned earlier), as weil as fish ponds and fishing
basins. Hauses are not included in this category (see p. 106, below).
Fish ponds (m(m öngköt), made in the rice fields and emptied from
time to time, are usually not separately owned, but it does occur that a
field-owner sells his pond while retaining his field, or retains his pond
upon transferring his adat-ownership of the field. Fish ponds can also
be transferred by inheritance. The fishing basins along rivers and creeks,
or in their backwaters (the former kind is called nöhön, the latter
lhOm), can be held in adat-ownership, or at any rate the fences en-
closing such basins can be. Within the area affected by the right of
avail (p. 95f.) everyone has the right to stake out such fishing basins,
provided no other interests are harmed.
This right of adat-ownership can be held by individuals (residential
plots are almost without exception the personal property of women).
As everywhere eise in the Outer Provinces [i.e. outside Java and Ma-
dura], no village or other jural community holds land in adat-owner-
ship. (-).
The right of adat-ownership is initially vested through the occupation
of virgin land (rimba) or- rarely- of padang (p. 62), which does
not mean a completed reclamation, however, but the placing of visible
tokens demarcating the area intended to be cultivated. This right can
either devolve automatically to the adat-owner's heir, or be transferred
during his lifetime (by the owner, but not by a tenant) through sale
or gift. Transfer by way of harter or through prescription is unknown.
The right expires when the land is explicitly abandoned or when it
becomes extinct. Extinct here means, in the case of ladang (i.e. dry
V Aceh 99

fields which are cleared but not diked), that all traces of cultivation
(often lasting only one to three years) have become invisible. But as
regards umong (i.e. wet fields ringed by low dikes, in Aceh Major
seldom artificially irrigated but flooded by rainwater), as weil as
[200] gardens and residential plots, extinct means that people have
lost all memory of such land having belonged to any particular person.
A person may therefore still exercise his right to an umong which no
Ionger shows any visible trace of his former occupation of it. Similarly,
former rice fields gradually turned too brackish by sea-water for further
cultivation are still considered to be part of the village cultivation area.
Adat-ownership of wet fields, etc., is not lost when the owner law-
fully moves elsewhere (p. 60); but should he stay too long, his rice
fields may be appropriated by the chief (p. 91).
Extinction of adat-ownership through prescription alone is unknown.
As indicated earlier, sale and gift are not, as in our law, contracts
relating to the transfer of ownership, but, similar to harter, methods of
actually transferring ownership. Purehase (bloe) or sale (publoe) is
transferring land in return for a money payment (yum), now or later.
A gift (hibat) is transfer without payment. According to Acehnese adat
law these transactions are therefore not 'contracts' (let alone mere
consensual contracts) binding a person to transfer a thing. The con-
ception of failure to 'convey' a contractually 'sold' object is unknown,
because in Acehnese law there is no sale before the actual delivery of
the property; default of payment, however, may easily occur. But since
adat law knows no symbolic or other formal methods of transferring
land or water from one owner to another, and giving a title therefore
consists in permitting the latter to take full control of the property,
some jurists had the illusion of having found a 'contract' which 'trans-
fers dominium' after the manner of the French Code.
Since only Indonesians can hold a right of adat-ownership, transfer
of this right to non-Indonesians is impossible (-).
Transfer of adat-ownership of land (and of water?) by sale or gift is
lawful only if three essential requirements are observed. First (as the
after-effect of a former right of avail?), the presence at the transaction
of the village authorities and elders, who may prohibit alienation, but
only for very important reasons (public opinion dislikes the sale of
hereditary fields). Secondly, the presence also of about ten witnesses
[201] (p. 73) from the village or villages of the parties, which
witnesses are remunerated with tobacco leaves. Finally, offer and
acceptance (pösamböt and samböt) in accordance with the Islamic iiab
100 Van Vollenhoven on Indonesian Adat Law

and kabul (p. 12), though no other Islamic influences on sale can
be found.
Because of the existence of the right of first option (above, p. 98),
no rice field, garden or residential plot may be sold unless the owners
of the adjoining Iands have been notified and have declared that they
do not wish to exercise their right. In present-day adat law there is no
trace of an outright sale of land or water which tacitly gives the seller
the right to redeem the property for the same price within a term of
years, or during the time it is held by the purchaser himself. Not
unknown, however, is a sale with a stipulated right of re-purchase, that
is, with the seller explicitly reserving the right to buy back the property.
In cases of alienation of rice fields the chief expects to be consulted,
though this is not always clone (p. 65). He gets (used to get?) one per
cent of the price of every rice field sold. Because of their situation, the
alienation of dry fields (ladang, pp. 61, 63) is relatively rare. With
gifts for the benefit of Islamic scripturists the prescriptions of the
hukom (religious law) are often observed (as to the correct form of
offer and acceptance, origin of the property, etc.).
At the larger divisional capitals and coastal places, and often else-
where as weil, native land rights have often become confused, probably
as the result of illegal transactions with Chinese and Europeans, or
govemment interference. Special measures to regulate the now existing
conditions might be helpful, particularly in the capital of Aceh itself,
which we christened - pars pro toto - Kuta Raja, ('the Sultan's
stronghold') after the royal precinct.
(--)
[202] Temporary rights of user, * as are also found elsewhere in the
archipelago - either for the purpose of a few months' incidental cul-
tivation (Bomeo, Padang highlands, westem Java) or in village-owned
land allotted as an apanage or as an attachment of office (Java) - are
in Aceh known mainly in chiefdoms with much primeval forest, where

* [Van Vollenhoven here writes gebruiks- of genotrecht (lit. right of use or

right of enjoyment), presenting the terms as if they were synonyms. At a
later stage of his writing they became two different conceptions. Where
adat-ownership is vested in a group (household, family, etc.), as is common
enough in Indonesian adat law, gebruiksrecht became the term for the (Sub-
ordinate) right of the individual members or sub-groups over their respective
allotments. Genotrecht, conceived as an essentially short-lived right, is what
V.V. refers to here. In the present edition this term will be rendered as
'temporary tenancy' (and not as 'right of enjoyment' as in Ter Haar, 1948
- see note on page 43, supra). - Ed.]
V Aceh 101

they concern temporary cultivations of ladang land (p. 98); in the

past they were also found on the riparian strips of tanoh raja (p. 97).
Besides the right of avail, adat-ownership and temporary tenancies,
there is also a peculiar right by which the owner of a piece of land has
a first option on adjacent land offered for sale. He is entitled to buy at
the price tendered by a non-neighbour. (-) This right of first option
inheres in, and thus follows the vicissitudes of, the first-mentioned
property. Should a dispute arise between persons having such an
option, the matter is decided by the court if the parties cannot reach a
settlement among themselves.
For the sake of completeness the important right of occupancy *
(p. 98) must be recalled. lt is subject to the right of avail and the
permission of owners of land in the immediate vicinity of the proposed
reclamation. It is obviously also subject to the provisions relating to
newcomers to an area, as described earlier (p. 60f.). As stated before,
the exercise of this right 1 9 creates adat-ownership, except [in the past]
in respect of the riparian strips of tanoh raja. Allied to the right of
occupancy is the right to collect natural produce, to wash gold, to hont,
to convert small stretches of river into fishing basins (pp. 98, 105), etc.
The right of grazing on fields and padang land has also been
mentioned already (pp. 96-7).
Yet another land right is the share-cropping tenancy (mawa'ih, etc.)
held by a person who has been granted a piece of cultivated land for
him to work with his own plough, water buffalo, etc., a right for which
he must pay one-half (or other stipulated proportion) of his crop to
[203] the owner or the temporary holder of the field. If the field is
subject to a ban (p. 75) the chief who imposed the ban will act as
grantor of this right. The term mawa'ih is used only when the crop is
divided in halves. (-) The obligations of the parties appear tobe fairly
accurately defined. Unless otherwise agreed, the tenant is responsible
for draught animals and seed, for the provision of [ritual] meals
during planting and reaping, and for making over one-half of the
harvest to the grantor. The latter must allow his tenant full use of the

* [Van Vollenhoven here introduces ontginningsrecht as a technical term

which gained generat currency in Dutch adat law writings. Its Iiterat transla-
tion is 'right of reclamation' (though in Ter Haar, 1948:83 it has been
rendered as 'right of pre-emption'). None of these terms conveys the essen-
tial meaning of this right as V.V. conceived it: a means of vesting adat-
ownership (or at least a preferential right) over hitherto unused and owner-
less land. 'Occupancy' does convey this meaning in English usage (Osborn,
5th ed. 1964; Shorter O.E.D., citing Blackstone).- Ed.]
102 Van Vollenhoven on lndonesian Adat Law

field, and, after he or his representative has witnessed the measuring

of the harvest, remove his share from the field.
Any field may be subject to a share-cropping tenancy, and any Aceh-
nese can be a share-cropper; but it is usually young bachelors without
fields of their own who seek to obtain land from people with widely
dispersed holdings, such as chiefs often have. All that is required to
establish a share-cropper in his tenancy is actually to put the field at
his disposal. Share-cropping tenancies seem to be neither inheritable
nor transferable, and they expire after the reaping, normal duration
apparently being just one season.
It is also possible to obtain a right to cultivate another's land (and
water?) by renting it (siwa; to let, pösiwa) for money or husked rice.
The letting of cultivable land is rare in the lowlands but common
in the highlands (and in the dependencies?). Plantations, too, are
let in the lowlands. Since the consequences of this right are not
particularly far-reaching, it, too, can be established without formal
requirements. No particulars regarding its inheritability or expiry are
known.
A most important institution is tenancy in return for loan, * in which
a person obtains tenure of a piece of land upon lending a sum of
money (pögala, to give such tenancy; gala, to obtain it). He is entitled
to use the land thus transferred as if it were his own (but he cannot,
for instance, remove trees from a plantation), until such time as the
property is 'redeemed' by repayment of the sum loaned. There seems
to be no definite term for redemption. Granting such tenancy not
concurrently with the receipt of a loan, but as a security for a pre-
viously incurred debt, or for money to be received later, seems to be

* [Van Vollenhoven uses grondverpanding, pand, and pandrecht (lit. pledging

or pawning of land, pledge or pawn, pledge- or pawn right) in connexion
with this transaction. These terms became the accepted usage in Dutch adat
law literature, despite the serious objections to which they are open (see Ter
Haar, 1948:109f.). The transaction is widely known in Indonesian adat law
as gadai (or similar terms), but has no parallel in either Dutch or English
law. English terminology based on 'pledge' or 'pawn' is equally inappro-
priate for the purpose of interpreting gadai, because this conception does not
imply the notion of 'security' for debt with its concomitant sanctions in
western law. This leaves the present translator with two further choices:
either to use the vernacular gadai (with local variants) and to define what it
implies, as V.V. does in spite of his confusing Dutch technical usage; or to
employ an English construction like 'tenancy in return for loan' which,
though cumbersome, at least has the virtue of reflecting the essence of the
gadai conception. Bearing in mind that the author delighted in coining new
terms, I have made the second choice - Ed.]
V Aceh 105

[204] unknown [in Acehnese adat law] .* The tenant does not
acquire temporary adat-ownership but he seems to be entitled to
transfer his tenancy to a third party by a similar transaction or to Iet it
by the season or to grant it to a share-cropper. Questions of redemption,
however, may easily become confounded in such cases.
In spite of the precautions which adat law has attached to the
bringing about of tenancies in retum for loan, if the owner's right to
the holding is not specifically acknowledged from time to time it may
after a period of many years be exceedingly difficult to determine who
is the actual owner of the land, and this Ieads to invidious Iitigation.
The thing subject (gala, gönala) to this tenant-right may include wet
and dry fields, residential plots, plantations and fruit trees (if owned
separately from the land on which they stand), but not fish ponds or
fishing basins. Every Acehnese is legally capable of holding a tenancy
in retum for loan, and the right is not restricted to members of the
same village or chiefdom. The tenancy is vested when, on the occasion
of receiving the loan, and after the land has been reaped, a holding is
transferred to the tenant with the same formalities as have been
described for the transfer of adat-ownership.
The tenant's right is inheritable but cannot, it seems, pass to a third
party paying off the loan. The right is extinguished if the field ceases
to exist [p. 98f.] or when the owner redeems it. Redemption (töbölh,
p. 88) may likewise take place only after harvesting, when no crop is
left on the land. The court decides whether there are grounds for
making the owner compensate the tenant for part of the value of im-
provements when he redeems the property. Extinction of this tenancy
either by way of the tenant assuming adat-ownership of the land
because the loan has not been paid back after the expiry of a stipulated
period, or by then becoming entitled to sell the property in order to
reimburse himself, seems tobe unknown in Acehnese adat law.
lf we now examine the difference between this tenancy in retum for
loan and the right of a person purchasing a property on condition that
the seller may buy it back (p. 100), we should obviously not, on the
basis of the Corpus Juris, say that the owner-borrower of the first case

* [This kind of transaction is not uncommon elsewhere (e.g. Bali, Java, Batak-
land). Initially termed inlandsehe hypotheek ('adat-mortgage') by Van Vol-
lenhoven, it is essentially different from a tenancy in return for loan, in that
here the land (i.e. the profitable use of it) explicitly serves as security for
debts, with the owner usually remaining in possession (sometimes as a share-
cropper), at least for the time being. It was later termed zekerheidstelling
('security') instead of inlandsehe hypotheek (see Ter Haar, 1948:122ff.) - Ed.]
104 Van Vollenhoven on lndonesian Adat Law

[205] has a jus in rem and the owner-seller of the second case a jus in
personam (p. 95), as even Wilken was tempted to do. The second
transaction does, and the first does not, convey adat-ownership. How-
ever, it seems to be foreign to adat law to spell out the legal conse-
quences of this difference; in practice the issue will probably hinge on
the fact that re-purchase can be made subject to a time limit, which
seems unknown for the redemption of land given in return for
a loan.
A most peculiar right, ill-suited indeed to the indigenous law of
Aceh, concerns Iands which have been made waköeh (wakap) in
terms of Moslem law. That is, having been 'consecrated' by the owners,
such property is forever withdrawn from normal commerce and en-
dowed for purposes approved by Moslem law, for example, for the
benefit of a mosque. Any stretch of land or water may be so endowed,
but as a rule it is rice fields 2 0 or plantations. The question of who
should be regarded as having title to this property has been hotly
debated by Moslem scripturists; it leaves the ordinary Acehnese un-
concerned. A waköeh title is established by the actual setting apart of
the land for the purpose mentioned. The right is not transferable, and
it expires only if the property ceases to exist. Such consecration of
Iands, obviously undesirable from the point of view of economic and
legal mobility, is very rare in Aceh; this conception of waköeh has
nothing in common with other, hybrid meanings of the same word
(pp. 61, 70, 97).
After this summary of Acehnese rights relating to land it may be
useful to note which land rights do not appear in it. First, full owner-
ship or dominium; then, a right of possession in the sense of possessio
civilis (-); further, perpetual servitudes, superjicies, hereditary lease-
hold [emphyteusis], tithes, usufruct, usus; and finally, the loan of
land.
The right of avail and the right of adat-ownership over water have
been discussed above (-). Besides these, two more rights over water
must be mentioned.
In the first place, there is the right of irrigation, that is, the right to
use a natural stream of water for irrigation, or to build an irrigation
system and to use this artificial supply for irrigation purposes. This
right may be somewhat different for rice or for other crops; it differs
again in respect of natural and artificial supplies of water; and it may
[206] be extended to different kinds of adjoining landholders. There
is no doubt about the existence of this right in Aceh, but further par-
V Aceh 105

ticulars are lacking. Most of the wet rice fields (sawah) in Aceh Major
arewatered by rain.
Secondly, there is the right of fishing, analogaus to the rights to hunt
and to collect forest produce mentioned above. lt is the right to catch
fish with basket traps, rods, casting nets, drag nets, etc., or by means
of screen traps (jang). In the shallow marine zone araund Aceh every-
one seems tobe free to fishin any such manner. With regard to natural
waters (as in the numerous little streams of the Kaway XII) the right
to fish appears to be limited only by the right of avail. In fishing basins
set up along rivers or creeks, only a hook and Iine may be used. No
fishing is allowed in another person's fish pond. During the agricultural
season only angling is allowed in another's flooded rice field, but out
of season any gear is permitted. After a good catch at sea, or even a
moderate one, fishermen are obliged to make a gift of fish to spectators
from the coastal villages who await their arrival, and they must pay the
chief and influential headmen a tribute in fish on pain of having their
boats and gear 'banned' (p. 75). The significance of the demarcated
stretches (lhök) of beach along the north, east and west coast and in
Aceh Major itself, is not that in the waters opposite these divisions
only the boats that belang there are allowed to fish; they indicate the
areas of the respective fishermen's guilds responsible for the annual
sea kanduri [ceremonial meal].
We may now ask whether the Acehnese rights over land and water
Iisted above should be regarded as an exhaustive and immutable in-
ventory. The Acehnese themselves probably never seriously considered
this question. If there were reasons in abnormal times for modifying a
right, so it was modified. In the vicinity of our concentrated front Iine
around Kutaraja (1885-1896) during the Aceh War, share-cropping on
badly damaged land was practised on the basis that the share-cropper
was entitled to the entire crop during the first three years, and to
four-fifths of it in the fourth year. Is it not likely, therefore, that under
compelling new circumstances other significant changes, or new rights,
would emerge?
[207] That some of the rights we have discussed are so similar in
appearance as to be almost identical - for example, adat-ownership
subject to the right to buy back, as against tenancy in return for loan;
short-lived adat-ownership of ladang fields beside temporary rights of
user (p. 100n) - is only to be expected from the natural growth of
these institutions. Such confusing similarities exist also in other law
areas (-).
106 Van Vollenhoven on lndonesian Adat Law

Law of Chattels *
The legal matters which Acehnese distinguish as utang pö'utang from
questions of land and water could be defined with some accuracy as
an equivalent of our law of movable property. In Aceh that includes:
dwellings (which can be taken down and removed almost as easily as
our market stands), boats, livestock, furniture, kitchenware, clothing,
weapons, ornaments, foodstuffs and, especially, money. This law of
chattels has many parallels with land law, but also many differences.
A right of avail over property other than land and water is unknown,
and there is no right of occupancy [as a precursor to vesting adat-
ownership] , right of first option, or right of use (see pp. 100-1) in
respect of movables.
Adat-ownership (milek) of movables is, of course, very common. lt
means the power to act as owner of the property, but unlike adat-
ownership of land or water it is not subject to restrictions. The right
is held by individual persons; a 'village ownership' 2 1 of movable
property (-) is of little consequence. Adat-ownership of movables is
originally acquired by appropriation, in cases where this is still possible
(forest produce, game, fish). lt expires when the property ceases to
exist, or when it is abandoned; but not through prescription. The right
is transferred either automatically by inheritance, or intentionally by
sale, harter or gift. Gifts of movables, (and of other property - see
above) are often made in accordance with the rules of Islam; contri-
butions to ritual meals (kanduri) are of course governed entirely by
indigenous local custom.
Barter (tuka) is the transfer of one thing against the simultaneaus or
[208] subsequent transfer of another thing.
Usually no formalities are prescribed for the transfer by sale of
movables. Only when cattle are involved is the use of special formulae
required, as weil as the co-operation of village authorities and wit-
nesses. Note here the association of livestock (especially draught

* [Van Vollenhoven's heading of this section is Schuldenrecht (lit. law of

debts, law of obligations), and both term and classification became standard
usage in Dutch adat law studies (though not in other fields of Dutch juris-
prudence). 'Law of Chattels' appears to be the appropriate rendering in
English, provided the meaning of 'chattels' is confined to its most common
usage in English law, i.e. chattels personal, not chattels real. This term not
only brings out the indigenous distinction stressed earlier (p. 95) by V.V.
between rights in land (and water) and rights in 'movables', but also sub--
sumes 'debts' (i.e. choses in action as chattels personal), as does the term
schuldenrecht. - Ed.]
V Aceh 107

animals) and land, the primary means of existence in an agrarian

society - the res mancipii of the ancient Romans.
The buyer of a house merely takes it down and carries it away; but
the buyer of a water buffalo must, before using the animal, first pour
water over it from an old-fashioned coconut ladle - a clear illustration
of the difference between adat law and adat (pp. 5-6).
Apart from the right to appropriate the natural produce of land and
water (above), there is no provision in adat law for acquiring property
in other ownerless things. All such rules for filling out the system are
left to the court.
As an analogy of share-cropping there is profit-sharing in chattels
(for a half-share, mödua laba, or other proportion), for example the
herding and maintenance of another's livestock for one-half of the
number of offspring; 2 2 or the cutting and grinding of another's sugar
cane (with one's own mill, water buffalo and helper) in return for
one-half of the resulting product. (-) The claim to such shares is
established without any formality, and is presumably not inheritable;
it expires when the property perishes, or when the venture is com-
pleted.
lt is less uncommon to find waköeh chattels like Korans and other
religious books (kitab), prayer mats, and ceremonial utensils for prayer
houses and Moslem schools in Aceh than similarly consecrated
Iands.
Hiring (siwa) of cattle is known, usually against payment of un-
husked rice, as weil as the renting of shops, stalls (köde) and sugar
mills. The letting of dwellings, on the other hand, is contrary to local
custom. Letting and hiring take place without formalities and become
[209] binding as soon as the animal, shop, etc., is placed at the dis-
posal of the other party.
Also chattels may be held in return for loan [analogous to tenancies
in return for loan- see p. 102f.]. A typically Acehnese feature is that,
if no interest is stipulated, the property so given must be double the
value of the amount borrowed. When interest has been stipulated, the
property must be equivalent to the principal sum plus the interest for
the term of the loan. Furthermore, the money lender may use the
property - a right of user as distinct from a security pledge - and
this includes the right to hire it out. The transaction, which is con-
cluded without formalities, may involve boats, trading stands, personal
jewelry, weapons, and fishing nets; but never houses, draught animals
or other livestock. Redemption has no time Iimit. Should property
108 Van Vollenhoven on lndonesian Adat Law

which represented double the value of the loan be lost, the owner is
paid the equivalent of the principal (instead of having to refund it) -
this rule is probably not confined to cases where the holder was
responsible for the loss of the property.
Besides all these parallels with rights over land and water, there are
also a number of rights which, though not exactly parallels, are yet
closely related to the system of land rights. In order to understand
these, the jurist should first put aside the Roman (and present-day
western) division between rights in things and rights against persons,
between actiones in rem and actiones in personam, and remernher how
much effort it cost him in his young days to think in these terms. Aceh-
nese are not interested in learned distinctions. We saw this already
when we discussed sale and share-cropping. With the sale (i.e. here:
actual transfer) of land the purchaser acquires a right in the land, and
the seller a right to the purchase price for which he may sue the buyer.
With the sale of movables, one party acquires a right to the goods
concerned, the other a right to the purchase price. The first case deals
partly with land law and partly with obligation; the second case lies
entirely within the law of chattels. The share-cropper acquires a
(temporary) right in the land he cultivates (a right which, as land right,
has its appropriate place in land law alongside adat-ownership, tenancy
in return for loan, etc.), but the Iandlord has a claim to one-half of the
crop, and thus a right which falls under the law of chattels. The
Acehnese classification therefore aims at what is obvious to every-
one: the object of the claim, the petitum; and it would be useless
[210] here to distinguish a real action from a personal action when
the Acehnese has not even thought of applying the terms for offer and
acceptance, ijab and kabul (known to him from the Islamic law of
marriage) to what we might call contracts in adat law. Forthis reason,
neither the Moslem law of contract nor the rules of the third book of
our Civil Code correspond to adat law, or would be helpful in shaping
it. That could be done only by legislation based on indigenous legal
categories.
Rights to money and other chattels may in Aceh be established also
on quite different grounds. In the first place, through the Jending of
money (pönguy peng), whether or not in return for land or chattels.
The date of repayment may or may not be stipulated. Loans often carry
interest, but not always (where land has been given in return, presum-
ably no interest is ever due). Where interest has been stipulated,
chattels given in return for the loan need not be double its value but
V Aceh 109

equal only to the principal plus interest. To lend money for interest is
strongly disapproved of on religious grounds, but loans on the condi-
tion that the creditor would receive mödua basi - i.e. one-half of the
profit gained by exchanging Aceh-dollars [for Dutch currency] at
Pinang - were considered less sinful, and were commonly practised as
a disguised way of obtaining ordinary interest even where no currency
exchange took place. Anyone, Acehnese or not, may enter into a money
loan; vesting and expiry of rights are governed by the nature of the
transaction.
Closely related to money loans is the advance (pangkay) on crops
mentioned earlier (e.g. on pepper crops, pp. 64-5), or on the collection
of forest produce. This advance, with usurious interest, must be repaid
by the debtor after the harvest. Should he be unable, or only partly
able, to do so the amount outstanding, with a fresh addition of usurious
interest, remains a charge on subsequent crops or collections. In the
event of crop failure the creditor loses his claim, or part of it, and
therefore bears the risk in this transaction.
Long prohibited, but not therefore extinct, is the so-called lada
bunga contract (? bungong lada = pepper blossom), that is, a loan
advanced on a pepper crop and repayable in pepper on terms enabling
the money lender to get the product far below its market value. For
[211] obvious reasons also Indians and Chinese are approached for
such advances. Vesting and expiry of rights are governed by the nature
of the transaction itself. Seizure or sale of the plantation upon default
of payment appears to be impossible.
All rights of user of perishable and imperishable goods other than
money are known by the same term (nguy, to borrow; pönguy or bri
nguy, to lend); also safekeeping (tröh, tömöröh) is known. These con-
tracts involve no obligations other than those understood by every lay-
man; doubtful cases are decided in court.
Gambling and betting are common in adat law, though prohibited
by Islam and (with certain exemptions) also by our administration.
Claims arising from such transactions are not enforceable in govern-
ment courts (ISb. 306/1907), but this means little in Aceh. Betting by
spectators at animal fights is or was a daily occurrence (-). The rules
for those who enter animals for a contest are singular. When animal A
is to fight animal B they are first shown to witnesses by their respective
owners, who then put down equal stakes, the combined amount (taröh
bak) being handed to the chief or village headman. Now the animals
fight, and if A wins, the chief or headman will pay its owner the
110 Van Vollenhoven on lndonesian Adat Law

combined stakes - after subtracting, of course, something for bis

trouble.
Service contracts for wages (upah) are known here, but in view of
the co-operation of wives, children, adult sons and other relatives, and
of other voluntary assistance with the cultivation of fields, the social
importance of wage labour is less than it is in modern countries.
Examples of paid services for shorter or Ionger periods are: planting
out by women of rice seedlings outside the lowlands of Aceh Major;
suckling of infants; acting as go-between (sölangke) in marriage nego-
tiations (which involves a variety of minor duties); cutting wood for a
wedding; circumcizing; participating in ritual death-watches; various
functions of the village Moslem officiant. Payments are usually made
wholly or partly in kind, such as lengths of cotton, a quantity of mixed
[212] husked and unhusked rice, etc. What we call piecework con-
tracts - i.e. to do a certain job for an agreed price - are not dis-
tinguished from wage labour in Acehnese law, and are concluded (in
the past more often than nowadays) with, for instance, carpenters,
blacksmiths and goldsmiths.
Among maritime people Iike the Acehnese one finds, of course, some
kind of shipping enterprise. The master (pawang) of the ship is usually
bimself the owner of gear and boat (fishing craft or other vessel). The
crew (awak) are in his paid employment. There is no special informa-
tion on cargo trade, although there is or was considerable cargo traffic
by sea from Aceh Major to places on the west coast which are difficult
to reach overland.
Contracts of agency are certainly not unknown, and the agents are
called waki, from the Arabic wakll (cf. pp. 63, 64, 71). The function of
the waki in concluding a marriage has a unique, Islamic character.
A peculiar variety of agency operates between the master of a fishing
boat and the fishmonger (muge). The master hands his catch over to
the monger for a fixed but unpaid price, and the monger takes the fish
to the market. If the fish realizes more, the monger may keep the differ-
ence (often he manages to wangle even more from the master); if the
fish realizes less, the monger bears the loss, unless he is able to soften
the master's heart. The master will usually renew the contract with bis
regular monger, but either party may cancel the arrangement after each
completed assignment. On the same basis the !arger fish dealers may
engage smaller dealers. The regular agents are obliged to contribute to
the annual ritual sea kanduri of their principals (p. 105).
There is a similarity between this contract and the legal relationship
V Aceh 111

of a plantation headman with the chief's pepper buyer (pp. 64-5), but
in the latter case the price is not always stipulated beforehand. A profit
fixed by the officials concemed with the pepper trade (e.g. how much
the chief may appropriate for his trouble) is called kamsen, from the
English 'commission'.
Personal surety, based on consent (angkee, to stand surety for
someone), appears to be frequent in connexion with loans of money.
Adat law does not, however, recognize the Iiability of a co-surety
for the entire sum, but prescribes that liability be shared among
co-sureties.
[213] The cash guarantee or hak ganceng, which our administration
often demands from the chiefs, is an arbitrary imitation of the Iitigation
pledges of indigenous judicial processes, but has nothing to do with
adat law.
Corporate societies or carikat (pp. 59, 87) appear to be hardly
developed here.
Apart from rights arising from money loans, wage service, etc.,
which remind us of claims arising from contract in our own law, there
are still other rights and duties which cannot, however, be forced into
our legal system of contracts and obligations without being distorted.
lt would be even difficult at times to say whether these are indeed
customs with legal consequences, that is, adat law (p. 7), or only
matters of popular usage.
The reciprocal giving of aid, which is so important elsewhere in the
archipelago, is of far less significance in Aceh, although it is not un-
known when the rice has to be harvested or threshed. To join efforts
for a useful purpose does not (or did not) seem to come naturally to
the Acehnese. Those who help to pound rice often receive only a tot of
fermented rice-drink; and there is voluntary aid (mösöraya) in !arge
numbers on the fields of wealthy folk who pay for this service with a
generous meal.
The presents (tömöntuek) given to the bride by guests at her wedding
feast, or to the bridegroom by his close blood relatives, must be
reciprocated if the givers are younger kinsmen of the bride or groom:
when leaving the festivities they are given a sum of money about
double the value of their presents. Elsewhere, too, the marriage customs
include such compulsory gifts. Comparable to these are the compulsory
gifts by retuming fishermen, and the compulsory contribution by fish-
mongers to the annual ceremonial meals of the fishing masters who are
their regular customers.
112 Van Vollenhoven on lndonesian Adat Law

The village buying of meat during the period of the fast seems to
have an entirely domestic character, with the village officials dividing
the meat and apportioning the cost amongst the villagers; and the same
can be said of the collective contributions for the festive end of the fast
or of the Koran-instruction course. Such voluntary contributions are
called ripe.
Also in this connexion the question arises which we asked before
(p. 105), of whether these obligations are so immutable as to prevent
[214] the creation of other rights and duties. And again the answer
may weil be this: Acehnese certainly do not imagine that they can,
through consensus between parties, create any new sort of obligation
they fancy - remernher here that most of the obligations described
above spring not from abstract agreement but from concrete facts and
performance; yet there can be no doubt that, given compelling new
circumstances in legal commerce, they will create new rights and duties
by adapting their existing institutions. Even if legal claims appear in
our eyes to be closely akin - e.g. a fishmonger's claim and that of a
seller on commission - this rather pleads for than against the credi-
bility of the information. For where in the natural growth of institu-
tions do we find rigid distinctions?
As could be expected from an illiterate people without a dass of
professional lawyers, there has been no systematic refinement of the
law of chattels - notwithstanding the Acehnese fondness for money.
Legal rules therefore exist only with regard to the essentials of fre-
quently recurring issues; the rest is left to the court to decide on the
merits of each case. (-) So in cases involving what we would call
unjust enrichment, an indigenous court would find accordingly,
although the issue is nowhere specifically covered by adat law. Formal
requirements for the creation or transfer of rights to chattels are, as
said before, observed only when these rights are considered to be as
important as rights over land or water, that is, with the transfer of
plough-cattle. Prescription is as unknown in respect of chattels as it
is in connexion with land rights.
It may probably be assumed that Acehnese land law, as weil as the
law of chattels and the law of inheritance, deal only with corporeal
things, and that incorporeal things or titles are not recognized as
discrete subjects of proprietary rights; but the devolution of the right
to a tenancy in return for loan upon the tenant's heirs, would not be in
accord with this assumption.
V Aceh 113

Law of W rongs *
[215] The division between actions which are civil wrongs only and
actions which are criminally punishable as well as civilly actionable,
is unknown in Acehnese adat law. To the Acehnese, any impermissible
conduct can Iead both to restitution or compensation and to punish-
ment. If it is true that Iitigation payments are made in actions for
debts, but not in cases involving punishment (p. 72f.), then it would
appear that the Acehnese do sense a difference between the two kinds
of wrongdoing; if not, it might perhaps be better to regard their law
of wrongs simply as part of their law of chattels.
Are these wrongs exhaustively tabulated in Acehnese adat law? lt is
evident that they are not, no more than we would be able to enumerate
all actionable wrongs under our civil law. Such wrongs comprise all
conduct violating rights which others derive from the constitutional
law, marriage law, inheritance, land law, or the law of chattels, and
such conduct may be punishable if the circumstances warrant punish-
ment (e.g. if the transgression is considered to be serious, or perpetrated
with malice). A fairly heavy fine is (was) therefore exacted for a
breach of betrothal without reasonable cause by the bride's father, in
which case the betrothal gift (p. 86-7) must be retumed as well. For the
same reason incest - i.e. sexual intercourse with one of the closely
related warnen referred to on page 82 - is a serious punishable
wrang. lt is likewise a punishable adat-wrong (involving a heavy fine)
to be in any way connected with the conclusion of a marriage without
authority under adat law (i.e. without being the Moslem officiant
- töngku mönasah - of the bride's village, or the kalz), regardless
of whether the unlawful functionary had secured a mandate (or super-
visory power) from the woman's natural guardian (wali), or had been
appointed deputy wali.
Further, it is a wrong to allow one's cattle to roam about so as to
cause darnage to crops or plantations. Another wrang used to be the
failure of a village headman to arrange in good time for the annual
communal meal in the village hall to celebrate the birth of the Prophet.
lt is (was) also punishable without the chief's authority to use a rice
field or boat banned by him (p. 75).
But besides these, there are numerous wrongs which on account of
their seriousness or frequency fall into a separate category: such as
homicide, bodily injury, maltreatment, theft and robbery, immorality,

* [De/iktenrecht in the original text. - Ed.]

114 Van Vollenhoven on Indonesian Adat Law

insult; as well as all conduct adversely affecting the honour or prestige

[216] of chiefs and headmen, and (in the past) of their relatives and
friends.
Some special wrongs may be noted briefly. lt is (was) a wrong to
plant grave stones in the closed season, that is, as soon as the seed beds
are sprouting, because this would constitute a danger to the community
by threatening the entire rice crop in the neighbourhood. Sexual inter-
course between a man and a woman who are neither busband and
wife, nor, in the past, master and slave, is a very frequent wrong
(fornication: dina, mukah), but rarely punished. In practice, illicit
intercourse (mumukah) by married people (especially women) is con-
sidered more serious than between unmarried couples. Abduction is
another wrong; but abortion in or out of wedlock (a common occur-
rence) is not.
Punishable was also the unauthorized use of the privileged attire of
the nobility: formerly yellow for royalty; distinctively patterned head-
cloths and weapons for particular chiefs.
Lawful private redress (p. 77f.) obviously never constituted a
wrong, but as adat law prescribes death for both parties in cases of
fornication, the person who caught both in the act would run the risk
of vengeance if he killed only one and failed to take the other to
court.
Some chiefs took or take vigorous action against certain wrongs
under Islamic law, such as smoking opium. In common with other
indigenous folk, the Acehnese pay far more attention to the accom-
plished deed than to the criminal intent of the offender. Punishment
of an unsuccessful attempt therefore seems to be unknown; the objec-
tions which we might raise against this are in a sense balanced by the
fact that some acts of conduct which we would regard as preparatory
or punishable attempts are here actually wrongs - for instance,
sneaking through a village at night-time.
lt is significant and worth mentioning that acts considered wrongful
when committed against Acehnese are under adat law usually not so
regarded if they are committed by Acehnese against the person or
property of foreigners. If perpetrated against fellow Moslems (Iet alone
a sayyid), such actions would still be recognized as wrongs; but if they
concerned infidels they were usually not considered worth punishing.
At the time of our notorious military concentration [1885-96] it
[217] happened that local Acehnese believed to be 'in league with
the infidels' were treated as infidels. This construction of the field of
V Aceh 115

wrongs is weil illustrated by the acts of piracy against non-Acehnese

for which this nation used to be notorious.
Wrongdoers are usually common villagers, but minor headmen, too,
could (can) be brought to trial for actionable wrongs. Royalty and
chiefs used to be more or less above the law; nowadays their wrongs
are put before government courts, or the musapat courts which we
invented.
Jural communities (villages or chiefdom) can likewise be held liable,
and if necessary even be punished, for wrongs committed within the
area under their right of avail if the culprits have remained uncaught.
Whether this vicarious liability of a jural community (-) is still based
on current Acehnese adat law is open to doubt. For many years, how-
ever, it was accepted and enforced by our military government, when
a village or chiefdom was fined for the destruction of telephone wires
or other property, or for failing to take timely measures against gangs
disturbing the peace. (-) There is no question, however, of a genuine
'collective' liability of fellow villagers for each other's misdeeds, nor
was this implicit in such 'political fines',23 because these were usually
imposed upon the village which failed to prevent the crime from taking
place within its domain, and only rarely upon the village of the un-
punished (and usually unknown) offenders. The only rudiment of such
a communal responsibility is that vengeance (bila) is directed against
[218] the whole lineage (kawöm) of the culprit, or, possibly, even
against affinal relatives. If blood-money is accepted instead, alllineage
members are obliged to make a contribution (ripe) towards it, a period
of one to two years sometimes being granted for the amount to be
collected.
The Acehnese law of wrongs is still in a state of transition between
a systematic law of revenge and a penal law system. The evidence
for this is twofold.
First, public prosecution was an exception, and usually prompted by
the chief's greed rather than by hissense of duty, for he would willingly
allow the prosecution to be bought off if the evidence of the wrong
(e.g. in cases of fornication) could be covered up. In the district of
XXII Mukim thefts were so common that buying off their prosecution
became itself an adat institution (töbö'ih). As a rule a wrong (i.e. what
we would call either a tort or a crime) is prosecuted upon the com-
plaint, or at the instance, of the injured party, that is, the aggrieved
person himself, or a near-relative (husband, father, brother, etc.) of a
seduced woman, or of any person whom the court may consider to be
116 Van Vollenhoven on Indonesian Adat Law

the injured party in a given case. Offences against the public order,
and therefore prosecuted even without a private complaint having been
lodged, apparently involved only trespasses which, in the opinion of
the chiefs, affected their honour or that of their relatives or friends.
These included such common Acehnese sins as fornication, if their
commission particularly desecrated a certain place or time, or revealed
a shocking lack of decency, or if they were committed by victims of the
chief's displeasure. In this respect there were no recognized adat
rules.
Secondly, the characteristics of the old law of revenge were betrayed
in the manner in which satisfaction was sought in cases of physical
insult (e.g. a slap in the face), bodily injury, and homicide, because as
a rule these were not submitted to the chief's justice, but resolved in
feuds between members of the respective lineages without intervention
by the lord of the country.
Besides compensation etc., and vengeance, the customary Acehnese
penalties in the field of wrongs were: death, outlawry, serfdom, blood-
money, fines, and thrashing. Imprisonment - close to, or underneath
the house of the chief - was not an adat punishment, except some-
times for a few days in cases of petty theft; but it was known as a
[219] means of exerting pressure. Apart from these adat punishments
there were, especially for impecunious people, all sorts of punishments
a cruel judge might invent: flogging, exposure to public ridicule,
cutting off hands, and many others. Stoning of fornicators and other
punishments under Islamic law were sometimes ordered by chiefs eager
to establish a particularly pious reputation, or in places where a scrip-
turist enjoyed great authority. Occasionally specific punishments were
prescribed for specific wrongs, such as the death penalty for theft
(even where the offender had not been caught red-handed). In cases
of adultery both parties faced either death upon being caught in the
act, or throttling and drowning at the instance of the court. Smuggled
goods were confiscated. Usually, however, the choice of punitive
sanction was at the court's discretion.
Blood-money (dii!t, an Arabic loan-word) existed only or mainly as a
means of ending a mutual feud which otherwise threatened to become
interminable. Under adat law it had a fixed rate: for instance, for
slaying a man it was normally five-hundred Spanish dollars (Aceh
dollars), but if the case ultimately did come before the chief, he would
often have his kali calculate the dii!t according to Islamic law (p. 76).
One may ask what happened if both parties belonged to the same
V Aceh 117

lineage, and whether nowadays, with or without the help of a native

administration of justice organised by us, redress by vengeance or the
payment of blood-money is still being recognized in Acehnese law. The
mere fact that there is no current indigenous term for blood-money
does not yet mean that the avoidance or termination of feuds through
the payment of blood-money was the result of Islamic influence,
because even adat-ownership is known only by the Arabic loan-word
milek.
Several wrongs involve(d) the obligation to tender apologies as weil,
either to avoid litigation, or as an essential complement to paying a
penalty or compensation. Thus a formal request for pardon, couched in
the correct adat formula, is required in cases where dignitaries have
been insulted by commoners; insult between equals requires a 'cooling
off' gesture with only a casual word of apology; and if a superior has
insulted a subordinate, a 'cooling off' gesture is deemed sufficient. The
ritual cleansing of a crime-tainted village by means of a meal of atone-
ment, or in some other fashion, seems tobe unknown.
[220] The most important sanctions were, however, compensation
to the injured party, and a fine or salah (also meaning proof of guilt)
which used to go to the judge-chief. In the past, people unwilling to
pay a fine were sometimes imprisoned in the space beneath the chief's
house - often in shackles if the fine was a heavy one - until the fine
was paid by them, or by someone on their behalf (p. 115f.). Capital
offenders (e.g. fornicators) unable to buy off their trial (uröeng salah)
were sometimes made the unpaid servants of the chief, instead of being
throttled and drowned; this measure was occasionally also applied to
those unable to pay their fines.
There are, of course, no general rules governing the lapse of sanc-
tions. The right of vengeance ceased (ceases) upon the death of the
culprit in a blood feud. Claims for compensation or other legal sanc-
tions presumably lapse only when the court considers this to be fair
under the circumstances. In the old days the penalty or vengeance was
suspended if the guilty party fled to the royal precincts and remained
there as the sultan's serf.
Although our regulations with regard to the indigenous administra-
tion of justice give the impression that the principles of adat penal law
are still applicable, and that only the penalties have been replaced by
those of the Native Criminal Code, actually nearly all adat penal law
seems to have been replaced by our law (at least in the government
musapat courts). Nevertheless, one important feature has remained: the
118 Van Vollenhoven on Indonesian Adat Law

aggrieved party appears before the musapat without having to make a

distinction between civil and criminal law, and it is for the court to
decide whether the wrongdoer has to compensate the other party, or is
to be penalized, or both.

Legal Remedies
The first sanction to be found in all this adat law is the fear of being
'shamed' or otherwise inhibited by the public opinion of fellow
villagers; then, amicable settlement of disputes by the village authori-
ties, or formal administration of justice (backed, if necessary, by execu-
tion of the judgment); and finally, private redress, either lawful or
unlawful. Owing to the absence of collective liability of fellow villagers
or of members of other territorial units, there is no sanction of expelling
an adat offender from his village or chiefdom; but even expulsion from
a kawöm [lineage] does not occur.
The relation between adat concepts and religious beliefs is revealed
[221] when there is the fear of being afflicted with the vengeance of
Allah or of evil spirits upon breaches of certain rules; for example,
failure to keep a vow, or marriage of a commoner to the daughter of a
sayyid (p. 82), or breach of the principle of avoidance between son-
in-law and parents-in-law (p. 83), or committing perjury at some
sacred place; or planting grave stones during a prohibited time (p. 114).
If a breach (without precautionary measures) of these so-called pantang
rules threatens the well-being of others as well, it is treated as a punish-
able wrong. The 'banning' of fields by the chief (pp. 75, 113) must
originally have been a form of invoking a state of pantang. The fear of
'being cursed' (könong srapa) with disease by a parent or master seems
to be less effective for the observance of the adat law here than it is
elsewhere.
No one will have believed for a moment that, before our administra-
tion, indigenous Acehnese govemments maintained public order by a
regular system of police supervision backed by courts of law and
powers of coercion. While public opinion and village authorities were
vigilant, the chiefs were highly erratic. They usually prosecuted only
persons who blatantly committed breaches of the social order (p. 115f.)
without being brought to book in their own village or receiving their
due through some form of private redress. The improvements which
our administration may bring about will only deserve the interest and
approbation of the people if courts keep in mind that an adat law like
that of Aceh knows no precise form of action for the enforcement of
V Aceh 119

any particular right, let alone the difference between civil and criminal
proceedings (-). The adat process knows only requests for 'legal
redress' on the basis of submitted facts, independently checked and
investigated by the court itself. The court's task will be to weigh all
interests involved in accordance with the broad rules of adat law (if
these are too wide, additionallegislation may be required), and to see
to it that all actual injustice be redressed as adequately as possible, and
that further injustice be prevented as much as possible. Of primary
importance are therefore the case itself and the appropriate judgment;
[222] classification in the framework of adat rules comes second. If in
the eyes of many people a judge bound by statute law still resembles a
pharmacist who must strictly obey the doctor's prescription, then the
adat judge may be likened to the doctor hirnself who, within the
accepted rules of his profession, must advise and help. The latitude a
judge is allowed in adat law was revealed, for instance, when the
judge-chief ordered the seducer of a girl to marry her, or compelled
illicit Iovers arraigned before him to marry each other (pp. 83, 116).
lt is evident also in disputes about the often undefined boundaries of
the highland chiefdoms, when courts (not the administration) are
expected to find a solution as good men acting in all fairness.
Only those whose knowledge of law and justice is confined to
western European systems (in which only practising lawyers find satis-
faction) will fail to see how rational such a flexible administration of
justice is for a simple society - and no less rational, in a different
form, perhaps, for a more complex one.

Development of this Adat Law

What then is the value of this adat law: is it suitable, is it complete, is
it capable of development? Nobody, surely, wants to turn this living
Indonesia into a museuro of lifeless adat exhibits, a curiosity shop of
indigenous law.
There is reason to believe that, before our often rough and ready
intervention, the legal institutions of the Acehnese, though still of a
primitive nature, presented a 'certain completeness', something 'natural,
truly indigenous, entirely suited to the stage of civilization in which
(they) used to live' (Snouck Hurgronje). We can only understand these
institutions, however, if we view them in the context in which they are
conceived by the Acehnese themselves. But if we start looking for
Acehnese actions in tort, for the Acehnese law of contract, or for Aceh-
nese real actions, we are likely to arrive at the baffling conclusion that
120 Van Vollenhoven on Indonesian Adat Law

all these vitally important matters are 'not provided for' under adat
law. On the other hand, what used to be suitable at the time of the
sultanateisnot suitable now, and we have tobe prepared for a develop-
ment of adat law in major and minor issues. A wisely directed adminis-
tration of justice may be invaluable in this respect; but it will, for the
time being at least, be indispensable for the legislator to play a helpful
part. In a well balanced Indonesian society we may expect a gradual
[223] and characteristic development of its indigenous law (p. 24),
but after the disturbance and major reorganization of Acehnese life,
especially since 1896 and 1898, this process must of necessity be set
going again with our assistance, and if the present reading of section 75
of the Regeringsreglement makes no provision for this, its scope should
be widened.
The civil administration has already been established (-), and the
autonomy of the chiefdoms of Aceh Major restored. [lt would be
useful to provide for the possible amalgamation of villages, and for a
simple form of Indonesian voluntary corporation. The chiefs' adminis-
tration of justice deserves closer attention, and the musapat courts
should not be burdened with the procedural rules of the government
courts. One might consider rules for the prescription, where reason-
able, of claims older than twenty years, and suitable regulations for the
execution of judgments, the payment of debts, and perhaps for the care
of orphans. Further: a marriage ordinance similar to that of 1895 for
Java; a more precise regulation of land rights, especially tenancy in
return for loan; the cautious introduction of credit facilities without
usurious interest, to be provided by banks or the government; and the
recognition, where desired, of adat wrongs.] *
It will be necessary to have such reforms designed as far as possible
by, or at least in consultation with, the Acehnese Ieaders of the popula-
tion (in order to avoid such still-born innovations as 'agrarian freehold'
and many others), and this should be clone only after a painstaking
investigation of existing conditions. Some of these changes need provide
[224] no more than stepping stones towards new adat law, and could
be dispensed with after a transition period of a few years - as is the
avowed purpose of many adat regulations drawn up by Protestant
Missions.
In this task there are four aspects which merit our particular
attention.
* [The bracketed section is an abbreviated version of Van Vollenhoven's sug-
gestions. - Ed.]
V Aceh 121

First, the reintroduction or renovation of practicable indigenous

means of evidence, such as any indigenous token signifying the transfer
of land; or the introduction of the custom (known elsewhere) obliging
the tenant in return for loan to recognize and 'remember' the owner's
right by means of a small annual gift (e.g. a little basket or parcel of
husked rice).
Secondly, the correlation of the adat private law and the Criminal
Code for Natives (which in practice also serves as a guide for the
indigenous administration of justice in Aceh). This Code unfortunately
time and again leads to questions such as who can claim adat-owner-
ship ('dominium') of the unreaped crop cultivated under a share-
cropping arrangement. The Acehnese do not concern themselves with
such questions; they know only that both parties were jointly entitled
to this crop. Care should therefore be taken with the phrasing of penal
provisions, so as to allow for an interpretation consonant to the nature
of adat private law, and one should refrain from such things as a pre-
mature inventory of contracts.
Further, it would be no luxury to lay down in a lucid and simple
ordinance a few rules like the following: that a court should not
assume adat law to be silent in cases in which, within wide limits, it
leaves the decision to the discretion of the court; that, instead of
thinking in terms of actions in rem or in personam, the court should
summen all parties involved (e.g. all three in the case of a cow sold by
an agister to a third party), so that each may ultimately be given his
due; and that the court must not construe actionable wrongs in terms
of western conceptions. There is no objection whatever to adat law
being regulated and refined by courts or legislation, provided that this
is done in the indigenous spirit and without obstructing its further
development.
And, finally, the aim should be to make this adat law, which of
[225] course originally applied only to Acehnese (and their slaves),
applicable to all Indonesians within this law area. As regards money
loans, etc., it should be applicable even in transactions between Aceh-
nese and other Indonesians. This suggestion is justified because Indone-
sians moving elsewhere will at any rate often lose tauch with the
institutions and customs of their places of origin; it is practical, because
it avoids needless diversity of laws; and it is in line with the prepa-
ratory work clone for the Minahasa [northern Celebes] in 1901 (see
Carpentier Alting, 1902, 1).
Even now, adat law is not exclusively concerned with Acehnese, for
122 Van Vollenhoven on lndonesian Adat Law

in Sungoe Raya on the east coast the chiefs (u!ei.ibalang) are born of a
sayyid family (i.e. they are Arab), and the law of marriage extends to
all Moslems alike, including for instance the marriage of an Acehnese
girl with a sayyid or other Arab, or with a native from Java, Kerinci,
or elsewhere. Nevertheless, as regards estates left by foreigners, or
wrongs against their person, the adat rules of justice amounted to little
more than lawlessness (pp. 95, 115f.).
Finally, it may be asked to what extent 'proven social needs demand'
the complete or partial replacement of Acehnese adat law (private law,
criminallaw, law of procedure) by the entirely unadapted 'provisions
applicable to Europeans'.24 The unanimous opinion will probably be
that such compelling needs have not been proved at all. The introduc-
tion of the first few chapters of our law of property (ownership, civil
possession, etc.) would do serious harm, and so would our system of
almost exclusively consensual contracts, of which the people have no
idea, and which even the Corpus Juris failed to achieve. Even the rule,
so obvious to us, that a wife must follow her husband wherever he sees
fit to take up residence, would here amount to a wrong (p. 85).
A good criminal code for Aceh would have to contain far fewer
sections than its European counterpart, and its crimes should be less
specifically categorized and more broadly formulated. lt would have to
make practical and comprehensible provision for the interests of the
aggrieved party, and link up with adat private law. No one wants a
western form of judicial process. What these people therefore need is
not a premature application of European law and procedure, but a
thorough investigation of all their adat law, followed by a gradual
process in which some parts are developed and supplemented, and
others eliminated.
The destruction of adat law will not pave the way for our codified
law, but for social chaos and Islam.
 CHAPTER VI

THE MINANGKABAU LAW AREA

[December, 1911]

Deiimitation of the Law Area

[247] The Minangkabau law area comprises the Padang highlands and
the coastal area of the Padang lowlands (Sumatra's west coast), the
densely forested riparian region (rantau) between the mountainous
area and the eastern lowlands, the navigable part of the Siak, Kampar
and Kwantan rivers (east coast of Sumatra and Riau) and also the
lower Kamparregion (excepting the coastal state of Pulau Lawan), and
part of the lower Kwantan region (lndragiri). The rantau of the Batang
Hari or Jambi river already falls within the Padang highlands. Kerinci
and the remainder of Upper Jambi, on the other hand, belong to the
law area of South Sumatra. Minangkabau colonies are found in Aceh,
in Batang-Natal and Barus, in Muko-Muko (i.e. Moko-Moko, Beng-
kulen), in Kerinci and along the Upper Tembesi (Jambi), in Malacca
[248] (Negri Sembilan as well as Kedah have been settled by Minang-
kabau from the L Koto* area), and even in Madagascar; though not in
the Bataklands. The population of this law area is estimated at about
1,300,000. Areas which could probably be distinguished as law
districts (p. 34) are, on the one hand, the tribal heartland, i.e. the three
luhak (regions, lit. 'river basins') of Agam, L Koto and Tanah Datar,
and on the other the 'border regions' (Willinck), i.e. the lowlands
(pasisir) and the rantau [which actually extend to regions well outside
the tribal heartland].
The comprehensive nature and logical coherence of Minangkabau
adat law can still be recognized. In the long neglected areas, in particu-
lar Upper Siak (Tapung districts), and in rantau Kampar, rantau
Kwantan (lndragiri) and rantau Batang Hari (the so-called Kampar,

* [L Koto: the L stands for (Roman) fifty; in Minangkabau Iimo puluh, i.e.
the 'Fifty Koto' - Ed.]
124 Van Vollenhoven on lndonesian Adat Law

Kwantan and Batang Hari districts), it appears to have been least

affected, and there, as weil as in [a few other officially listed, non-
autonomaus chiefdoms], the indigenous administration of justice has
been retained.

Law oj Kinship
[Because the Minangkabau jural communities, unlike the territorially
organized Acehnese, are predominantly based on genealogical prin-
ciples], the law of kinship, which in this case is matrilineal, must be
considered first.
The largest genealogical groupings are the twenty-two (or twenty-
seven) Minangkabau clans (tribal divisions) with individual clan names
like Koto, Sikumbang, Jambak, Bodi, etc. These clans are called
kampung in the L Koto, elsewhere sometimes kampung, or (e.g. in
Solok) suku (though suku usually denotes a union of clans). They are
found locally interspersed and widely scattered throughout Minang-
kabau territory, and as can be easily understood people therefore often
speak of a person's kampung when they actually mean only that part
of his clan which is present in his own village. Fellow-villagers who
are members of one clan need not live tagether in the same quarter of
a Minangkabau village (nagari). The 'four suku' which are commonly
considered to be the highest order of genealogical grouping [phratry]
are either- if one takes suku to mean 'clan'- combinations of the
aforementioned twenty-two; or- if one understands suku in its more
[249] usual sense - do not constitute blood communities at all, but
unians of mutually unrelated clans. The two lareh [moieties] - named
Koto-Piliang and Bodi-Caniago- indicate only a common (and now-
adays purely theoretical?) way of grouping the clan unions; one does
not find exclusively members of the same lareh in each village
(nagari). Splitting up of Minangkabau clans or the incorporation of
families or family branches from elsewhere has not been recorded [but
see 'Individuals', below].
Within the clan there is first the family * and then the household.
The family is the unit on which the structure of Minangkabau society
is based; a generic name for it does not exist, however. The members
of one family are called sabuah paruik, saparuik, i.e. 'fruits of one

* [The author's terminology has been retained here, for it is clear from his
subsequent explication that he refers to the (segmented) matrilineage - Ed.]
VI The Minangkabau Law Area 125

womb', but this term also applies to members of other families pre-
viously united with them. Though a family often occupies one rumah
or house, it is far from true that every house shelters an entire family.
The people themselves - according to Westenenk's information -
call the members of a family sacucuran, sakuriah, sakaum, sakupu,
sapandam sapakuburan, or describe them as saka/ian urang nan
badunsanak ibu ('all people whose mothers are each other's sisters or
cousins'), or as saka/ian urang nan badunsanak niniek ('all people
whose grandmothers are each other's sisters or cousins'). For the new
taxation of 1908 our administration chose the name kaum for the
family, and pandapatan sakaum for family income. Even when a family
has to Iook for new dwellings the original home, the rumah gadang
('big house'), is not abandoned. In some areas an average family would
number four women, a few brothers or mother's brothers and six or
seven children; elsewhere it may have up to fifty members. If the
growth in numbers makes a family split necessary (gadang manyim-
pang, 'splitting up the bigness'- which is not allowed as long as there
are members who are only five or fewer generations removed from the
common ancestress, except where there is irreconcilable strife - the
closer kamanakan [kinsmen] who retain, or acquire, a common family
head are often called sawarih, ('those with equal rights', those with
the same mamak) in order to distinguish them from their other sabuah
paruik (cf. p. 80). (For mamak in a wider sense, see below.) Families
seldom (or never?) possess proper names.
[250] The family may be split up into branches, jurai. Household in
the narrow sense means a mother with her offspring (samandai); in its
broader senseit is either 'members of one pot' (sapariuk), 1 or 'members
of one kitchen' (sadapur), or 'members of one house' (sarumah), this
last when the family itself is spread over more than one homestead. In
the lowlands it is becoming increasingly common to find a single hause-
hold per dwelling.
The pattern of kinship is matrilineal: the children belong to the
kingroup of their mother. The genitor/father is outside this blood
community, and all the children of one mother are regarded as full-
brothers and sisters. Both bachelors and married men never sleep in
their own family house (rumah dunsanak hambo, 'the house of my
sisters'). The former sleep in the surau [village hall] or in a lapau
(warung, inn) or with friends, the latter in their wife's house (rumah
hambo, 'my house').
Adoption in the sense of adopting children is unknown. What is
126 Van Vollenhoven on Indonesian Adat Law

found, on the other hand, is adoption (full incorporation) of blood-

related women into a family in order to prevent it dying out, or of men
in order to incorporate immigrants. The latter are called kamanakan
mahidu (or mahiduik?) air tawar.
Blood relationship is considered to exist only between those who are
descended from a common ancestress. In contrast to adopted kamanak-
an (mahidu air tawar) and the freed slaves of the family with their
offspring (kamanakan dibawah lutuik, 'children below the knee'), the
kamanakan who spring from one ancestress are called proper kamanak-
an, kamanakan kandung. Dunsanak (dansanak, dasanak, dangsanak,
dusanak) include sisters and brothers from one mother as well as male
and female cousins on the mother's side.

fural Communities
The smallest but most important jural community is the family living
in one nagari and having its own authority and property. The family
branch (jurai) and the hausehold group are not jural communities.S
The clan (kampung) itself (-) is likewise not a jural community.
Traditionally, panghulu kampung merely means the foremost head of the
families of the same clan in the one village. Above the family the next
[251] jural community is the suku, or, tobe more exact, that part of a
suku present in any given village - suku here in its more usual sense
of a union of clans unrelated by descent. There are four such unions;
nan IX ('The Nine'), nan V, nan IV and nan VI. Every village has
core-families from two different suku, and a number has core-families
from three of four suku.
How such combinations of clans (kampung) arose remains uncertain
- (see pp. 62, 65 and 70 on groupings of four). The suku as such
lacks administrative authority and property of its own but the section
of a suku in each village has both, or at least its own authority. These
suku sections rarely meet - except, for example, to depose a family
head - and have no council quarters. The significance of the suku
section lies in the part it plays in the village constitution. Since only
the original families of a village, the core-families, have a role in village
government, only those suku sections to which core-families belong are
of any consequence. Individuals and families from other suku are
ranked only as appendants of those core-families to which their an-
cestresses became attached. Lands devolving upon a suku section (see
under 'Law of Succession') are mostly immediately re-allotted to the
appropriate families if these are extant. However, it seems that in
VI The Minangkabau Law Area 127

various villages residential plots and dry fields remain suku land, tanah
suku. In the border areas the suku section usually does not constitute
a jural community. (Suku in the totally different sense it has in Aceh
was discussed on page 59.)
Of great importance again is the jural community which stands
above the suku section and which is called nagari (village, native
municipality, village republic). lt generally comprises a main village
(koto) with subsidiary villages or hamlets (taratak; pagaran?), and in
the highlands sometimes numbers up to 600 able-bodied men. Each
such community contains two to four suku sections. lts property in-
cludes land over which it has the right of avail, and the open village
hall (balai) situated in the middle of the village square (tangah medan).
Our administration has in many instances formally combined two,
three or four such adat communities into one new village, an 'adminis-
trative nagari' as it is officially called (e.g. ISb. 581/1908). lt would
[252] be of value to compare the former to the present number of
nagari. Nagari treasuries do not appear to have been introduced yet in
places where they did not already exist under adat (?) itself.
In many border areas there are no higher jural communities, but in
the rest of this law area it is common to find loosely organized village
federations, sometimes called luhak in the rantau (p. 123); they are
usually referred to as 'the (however-many) koto'. Above these nagari
federations again, there may here and there be very loose confedera-
tions, e.g. Kampar Kiri, VIII Koto Sitingkai, and so on. These, too, are
sometimes called luhak, and luhak is also used for administrative
divisions. Sometimes such federations or confederations are recognized
by our administration as jural communities and even as little self-
governing states (Kwantan, Indragiri, etc.). Usually, however, their
existence is ignored, or the federations are distorted into Java-like
districts (p. 60) under the odd names laras (lareh, p. 124).

Individuals
Immigrants (-) often attach themselves as 'child' (anak samang)
to a local 'patron' (induk samang), a family head preferably of
their own lineage or at least their own suku. The actual incor-
poration of newcomers (kamanakan datang) into a local family
(with potential effects upon village government) seems to be com-
paratively rare. In accordance with the village's right of avail any
person who settles there permanently must pay an adat fee. Because of
family land rights it is rare, and even a cause for suspicion, for a
128 Van Vollenhoven on Indonesian Adat Law

woman to move from her village. There is no mention of severing

village or family ties other than by full incorporation elsewhere, or by
expulsion. Children in their parents' household have no contractual
capacity. (-) If one wants to speak of class distinctions among the
Minangkabau, one must see their rank as determined by the length of
their family's residence in the nagari, and further distinguish only
between: 1) adat heads (recognized by our administration by exempting
them from compulsory services) together with their family members
and followers; 2) other free men, a category which even includes
government-appointed headmen if they Iack the proper adat qualifica-
tions; 3) the offspring of former slave women, who still occupy an
inferior status although their position is gradually improving. As
[253] a result of the pusako right (see below) the members of one
family are equally affluent, even if it happens that merchants, for
example, have valuable pancarian [personally acquired] property. A
Minangkabau man can never be a slave in his own land, at least not
among his compatriots. In this law area, the individual is of secondary,
the family of primary importance, but this certainly does not mean that
the individual has no independence.

Executive, Judicial, and Legislative Powers

The lowest Ievel of autonomous authority is that of the family
[lineage]. If a person refers to his mamak he means either the head of
his family, or his mother's brothers and those of the latter's generation
(i.e. mamak in wider sense); there seem to be no distinctive mamak
(-) of households (above), nor of family branches (jurai). The family
head is called mamak rumah ['head of the house'] even where the
family is spread over more than one homestead (-), or tungganai, or
tuo rumah. He is the most senior man in years of the oldest surviving
generation in the family (sometimes from a designated, alternating
brauch), unless for reasons of personal unsuitability the family members
together decide to deviate from this general rule. He controls all family
property except, it seems, the shares specially allotted for temporary
use; but he may not alienate any of it, only 'pledge' it in the four or
five instances strictly defined by adat law (see below). He may allocate
it in temporary use (ganggam baruntuek), but divide it only if there is
hopeless disagreement between two sections of the family (p. 125). In
important matters he acts only in consultation with all the adult female
members of the family and such male members as have remained in
the village, such meetings taking place in the rumah gadang (p. 125),
VI The Minangkabau Law Area 129

where also men married into the family, urang sumando, will be heard,
whether they are fellow villagers or outsiders.
(--)
[254] Of the family heads indicated here - it is important to under-
stand this in truly Indonesian terms - not all, but only a few, are
village elders as weil (panghulu, panghulu andiko, or undiko). Only
the heads of the core-families that have inhabited the village from
around the time of its foundation (urang asal?), and not the heads of
more recent families, the newcomers, can hold this position; and
should a core-family split up into new families only one continues to
provide a village elder. This panghulu andiko therefore represents,
first, the family to whom he is mamak, but often also one or more other
families which came into being through subdivision or later settlement
in the village. Suoh a collectivity of persons - embracing sometimes
one family, sometimes more than one - is called the payung (['um-
brella'] of the panghulu andiko, the individual members his anak buah.
He hirnself bears the title datuk (p. 59) together with certain insignia
of office. His house may have anjung, i.e. certain extensions (rumah
baranjung), provided the village has a council hall and mosque. He
must live in the village, and is assisted by two titled officials from his
payung, his dubalang or 'bailiff' and his pagawai (in other places:
manti) or messenger. (-) Hadjis are not permitted (since padri
times?) 2 to become or remain panghulu. The panghulu must ensure
that his anak buah live in accordance with adat rules and government
regulations. Where a panghulu is in authority over more than one
family, this office sometimes devolves in a fixed order of rotation from
one family to another, called adat balegar. The offices of mamak and
panghulu, and the titles (galar) associated with the latter, belong to the
pusako, family estate, or sometimes remain the property of a family
split up earlier. The elevation to the position of panghulu is a matter
for the jural family (see below); the approval of the suku authorities
(i.e. of the suku section concerned) is required, and the office is
[255] handed over in the presence of all the panghulu of the nagari.
Here, too, the hereditary principle is in fact modified by election
(p. 91).
If one understands the institution of payung groupings under their
andt'ko, then the remaining aspect of village government amounts to
this simple rule: either the village elders betonging to the same suku
section are represented in the village executive by one of them (suku
head) with his assistants, or - in other places - all the elders
130 Van Vollenhoven on Indonesian Adat Law

belonging to one suku section sit on the village council. In both cases
the fonn of village government is republican, for every decision of
importance is preceded by mupakat [agreement based on mutual con-
sultation, see below].
The difference therefore lies in the constitution of the suku section
authority. In the L Koto and Tanah Datar, and apparently also in the
rantau Kampar, it consists of one man, the panghulu suku - also
known as panghulu pucuk ('crest' panghulu), datuk nan kaampek suku,
datuk barampek - that is to say the foremost of the panghulu andiko
of the families belanging to the suku section concerned. In Agam and
elsewhere, however, the suku section is govemed by all the panghulu
andiko together. The difference is not very marked from the point of
view of the suku section (though it is for the nagari) because matters
concerning the suku itself are rare: confinnation of panghulu appoint-
ments and deposition of mamak (above) appear to be the principal
ones. Like other andiko, a panghulu suku has his helpers: a suku
'commander' or dubalang who, for example, expelled outlaws; a suku
orderly or manti (in some places: pagawai), one of whose functions
was to be 'interpreter' in the courts; and, usually, an additional third
man, a suku religious official or urang malim (tuanku). These assistants
do not belong to the andiko, and therefore do not take part in making
decisions. Together with their panghulu suku they are called the urang
ampek jinih ['tetrarchs'], or - if one of their number is missing -
urang tigo jinih. In Agam and other places, only the ordinary andiko
have assistants with titles (galar). Where the office of panghulu suku
exists, a new suku head (from the same kampung, clan, as his prede-
cessor's?) is chosen by the nagari authorities; and he may in one nagari
belong to a quite different clan from that of the head of the same suku
in a neighbouring nagari. The suku head (suku section head) does not
deal with individual commoners, but only with their andiko; but no
enforcement of adat law against an unwilling party is valid without his
prior knowledge and sanction.
[256] At the apex of the nagari there is thus, traditionally: either
- in Agam, etc. - the joint council of panghulu andiko, i.e. the rapek
panghulu or rapek nagari, meeting publicly in the balai; or - in
L Koto, Tanah Datar etc. - the joint panghulu suku (as many as there
are suku sections, p. 126). The latterare referred to as panghulu (nan)
kaampek suku, datuk nan kaampek suku, datuk nan barampek suku,
whether jointly or as individuals, and often recognize one of their
number as primusinter pares, the panghulu pucuk nagari (-). A third
VI The Minangkabau Law Area 131

alternative- in the rantau Kampar, rantau Kwantan etc.- consisted

of twin leaders, datuk duo sakoto ('the two per village'), namely the
pucuk gadang dinagari, village headman in charge of land matters, and
a pucuk gadang karantau, the rajo, harbour or river master in charge
of affairs on the water front of navigable rivers, which involved
dealings with strangers. The two to four religious officials or urang
malim (above) are called the 'four tuanku', tuanku nan barampek.
Govemment in all nagari is most democratic, mutual consultations
(mupakat) being held with all the core-families in the village on all
matters of any importance. The andiko and other family heads, as well
as other men of standing, are called nan tuo tuo, elders. Where suku
do not exist (p. 127), the village govemment is based directly upon the
respective family authorities (-).
The govemment of the village federations consists of the combined
village authorities. If there exists a confederation of such federations,
then each village federation is represented by an urang gadang or
kalipah (how is he appointed?). Such a confederation then appears to
be under the control of the combined urang gadang (nan V, and so on)
with a rajo- perhaps here, too, a harbour master, but in any event not
a solitary ruler - acting as a mediater. Unanimity of decisions is
required in all collegiate forms of govemment.
This whole system, however, has been interfered with by our
administration. Alongside the real panghulu suku (adat) we have
appointed supervisors of compulsory services, panghulu suku rodi;
alongside the true village authorities, even where pucuk (above) were
[257] unknown, a panghulu kapalo, and above them district headmen in
the Javanese style, tuanku laras. In the environs of Padang there appear
to be nothing but headmen appointed by the administration. Yet, after
more than fifty years, in spite of all efforts to breathe life into them (-),
these misconceived institutions have still not taken root: everywhere
people still know and recognize their adat dignitaries and headmen.
The personnel of the numerous Friday mosques (p. 69) - imam
katik bilal, the 'free ministry',- are not part of the traditional nagari
govemment and its indigenous officiants, the so called 'adat ministry'
or malim suku (above). Since a normal nagari has one or sometimes
even two Friday mosques, and thus needs no lower village house of
worship such as exists for instance in Aceh (p. 62f.), these malim,
where present, have nothing to do with the Moslem ritual worship
(sumbayang) but only with marriage, burial, religious levies, slaughter,
and possibly teaching (-).
132 Van Vollenhoven on Indonesian Adat Law

As regards genuine taxes, only toll rights (on forest produots and so
on), harbour dues and sea-fishing taxes were known, and perhaps
mosque dues. In addition to these, there were compulsory services to
village heads, and certain levies- bungo kayu [cutting rights] and so
on - in connexion with the right of avail over land (see below). As
adat law prohibits distraint upon pusako property for unpaid taxes,
and personal property is usually scant, perhaps a system should be
considered whereby people could pay off their tax debts through work
(-). The principal source of income for the indigenous head was
formerly the administration of justice.

Administration of ]ustice
[258] This was traditionally carried out by the village authority: thus
in Agam it was done by the rapek nagari in the balai on the village
square; in L Koto and Tanah Datar by the panghulu suku, subject to
appeal to the joint panghulu suku of the village; in the rantau by the
twin headmen. The suku orderly (manti, pagawai adat- see p. 130)
lent his assistance as intermediary between the parties and judge. The
Iitigation pledge (p. 72) was called tando suku. Indigenous counsel,
kapalo koto, were known (also traditionally?). The judge and his
helpers were entitled (in all matters? cf. pp. 72-3) to the uang jurah or
ta!e ameh (judging fees). Revision (bandieng) of a judgment could be
requested. Litigation before a village federation tribunal was (is) an
exception, the rajo (above) playing an important role in such cases.
Unanimity of judgment had to be reached; the attendant public could
join in the process.
Except in the few areas where the indigenous administration of
justice has not been superseded by our judicial provisions of 1874,
this village jurisdiction has disappeared, though the procedure still
survives in cases of amicable settlement, ba(r)damai, by village autho-
rities. The retention of the name rapat (popular assembly), now carried
over ·to government courts for a whole administrative division, is
humbug. The court fees, too, now come into the hands of quite other
people than adat functionaries.
As a means of self-help, or for the protection of one's rights, certain
courses of action were recognized, e.g. tariek, seizing some property of
the other party or of a kinsman or fellow-villager of his, and notifying
one's own village authority of having done so. In order to pay for some-
one's judicial fine, money may be raised through 'pledging' the patri-
mony of his family (p. 139). Formerly, hostageship, attachment of the
VI The Minangkabau Law Area 133

person, was also known. For contempt of court there was banishment
(p. 143).
The evidence of a witness whom the adat required to be present at
a transaction (pp. 73, 74), was valid also if given by his kinsman
whom he had deliberately entrusted with his testimony (pituah). As
witnesses of this kind (required, for instance, at the administration of a
deceased person's estate) the panghulu and other family heads were
[259] preferred. In land disputes the unanimous testimony was re-
quired of the four surrounding neighbours or pasupadan (-), the jihat
nan ampek or ampek bintalak ('the four borders'), as the individual
land holders or the heads of families are called whose pusako or ulayat
land borders on the disputed land. Likewise recognized was the sacra-
mental pituah (umanat), uttered within the family circle by a dying
person concerning bis pancarian [self-acquired] goods and debts, or by
a dying mamak concerning the family estate controlled by him (p. 128).
Quite often important legal transactions were accompanied by sacra-
mental acts (e.g. the slaughter of an animal) or performances. The great
oath, sworn by an entire family with regard to disputed land, usually
had the effect of turning the quarrelling families into irreconcilable
enemies.
Religious administration of justice no Ionger exists in this law area;
in villages in the rantau (pp. 123, 131) one sometimes finds a kali as an
official marrying off women without blood-wali (p. 83f.). lt seems that
formerly in some areas (-) the imam (p. 131) adjudicated in matri-
monial disputes at a meeting of mosque personnet and malim with all
the panghulu who attended the Friday service (sidang jumaat). An
appeal procedure is said to have been added later, but the whole
institution seems to have been abolished round 1880. The tuan kali,
who acts as adviser for adat law (pp. 17, 76f.), is often an unimportant
man conversant neither with indigenous law nor with the religious law.

Indigenous legislation 3
The separation of legislative and executive powers is as little known
in the higher and lower Minangkabau jural communities as in Dutch
provinces and municipalities. Local adat rules (cupak) can be changed
by sapakek (salyo, sakato), that is, the unanimous vote of all the vote-
holding heads in the village after a mupakat meeting (this kind of
legislation is becoming rare); regional adat law in a like manner by the
vote-holding heads of the luhak etc. concerned; and the generallaw of
the land by all the vote-holding heads in the country, i.e. the luhak nan
134 Van Vollenhoven on lndonesian Adat Law

tigo or alam Minangkabau. The adat law of the lower level must not
conflict with that of a higher level. Families and suku sections lack
legislative capacity. The ruler of Pagarruyung used to be regarded as
the guardian of 'the general law of the land and supervisor of its
revision; our administration might consider proceeding in a similar
manner.

Adat lnter-local Law

[260] Two (or more?) villages consider themselves to be allied,
ba(r)tali, either because one originated from the other (mother and
daughter village), or because of a formally (how?) concluded alliance
(with what legal consequences in the past?). The old neutral areas
(p. 78) between villages were called tanah rajo or tanah kubu; now-
adays they are either brought under cultivation (harto dapatan) or
added to ulayat land. Professional soldiers are unknown; in the little
wars (parang adat, parang batu) fought between villages on the tanah
rajo the suku 'bailiff' (dubalang, p. 129) played a prominent part.
Peaceful development of trade and commerce was impossible in the
more turbulent times of old; nowadays the indigenous wholesale and
retail trade has become important. After the disturbances of 1908,
reconciliations were celebrated in old adat fashion.

Law of Marriage
Here too the rule of exogamy is fundamental. That is to say, people are
allowed to marry within their own country, nagari, and even suku (in
the sense of a union of clans, p. 124), as long as they marry into a clan
(kampung) other than their own. In some border areas observance of
this rule has become notably lax.
Marriage is governed by mother-right; the man comes to live in his
wife's hausehold (pp. 79, 125) although he is not incorporated into
her family; the children belong to the mother; the property coming to
the conjugal family is largely that of the wife's family. In the border
areas the position of the husband is becoming more important, partly
through Islam and partly through other circumstances. The same is
true of locally transferable govemment officials.4 Child marriages also
occur. Betrothal becomes binding on the payment of betrothal pledges
(p. 86) as visible tokens.
The marriage (sumando, nikah) is concluded according to Islamic
law, that is by a patrilineal guardian of the woman (wali, p. 83),
normally with the assistance of the officiant (malim) of the common
VI The Minangkabau Law Area 135

suku, or of both malim of the parties' respective suku; some records

mention help from mosque officiants. A woman without a patemal
wali will almost always require the appointment (tahkim) of a special
marriage agent [wali hakim].
[261] Upon the termination of the marriage, property jointly
acquired during the marriage, the harto suarang, is shared out equally
(suarang baragih, or diagih; not dibahagai) - after deducting joint
debts?- between both spouses, or between the surviving spouse and
the family of the other. Suarang property seems to be rather rare. A
Moslem marriage gift (p. 84), paid only later, is known. The husband
receives wedding gifts from the wife. What the husband possessed
and brings into the marriage is called harto pambaoan; what the wife
received and brings into the marriage is harto dapatan.
Dissolution of marriage in Islamic fashion, usually by a single repu-
diation, is frequent. The strong position of warnen, here as in Aceh,
obviated the need for conditional repudiation as a regular adat practice
(what happens in the border areas?). One also hears of the dissolution
of marriage at the request of both parties upon the acceptance by the
wife's family of a notification to this effect.
Although the husband regards his wife's hause as his home, as the
genitor of his children he has under adat law no patemal authority in
that hause. There is as little question of a husband's reduced con-
tractual capacity as there is of a married woman's. In the tribal heart-
land there is no need for legal guardianship because of the unity of the
family.

Adat Pusako, Adat Kamanakan

Under this 'family estate law' or 'rights of matrilineal kinsmen' the
Minangkabau understand the complex of adat rules regarding the trans-
formation of personal property into family estate.
The principal rule is this, that a person's self-acquired property,
(harto pancarian, private property) after deduction of debts, devolves
after his death upon his [matemal] family as family property, (harto
tuo, harto manah, harto sako; or, after the lapse of one generation,
harto pusako). This is true not only of land and money, but apparently
applies also to clothes, tools, weapons, utensils and jewelry. The term
adat pusako is associated with this rule.
The second rule appears to be that, though the whole family [matri-
lineage] is owner and beneficiary of this new family property (hence,
[262] adat kamanakan), 5 yet the next of kin of the deceased person
136 Van Vollenhoven on Indonesian Adat Law

have precedence in the enjoyment of these goods. This priority of bene-

fit, controlled by the mamak, applies in the first instance to children in
respeot of the former property of their mother; then the deceased's
brothers and sisters born of the same mother; after that, her sister's
children; and, finally, her mother. A deceased woman's share may be
claimed by her children. Once this privileged first generation has died
out, however, it appears that the benefit of the new family estate
- now pusako instead of sako - thereupon devolves upon all kama-
nakan or family members equally, unless all warih (p. 125) consent in
granting temporary allocation (ganggam baruntuek) of the property to
the family branch or smaller unit concerned.
As stated, debts must first be settled out of the personally acquired
assets which are left behind. If these exceed the inheritance neither the
afore-mentioned next of kin with their personal property, nor the
family with its family estate will be liable for the excess. Whether the
deceased's rights of user in respect of land or movables held in return
for a loan * also fall to the family estate is not clear: it seems that they
do. But property of urang dagang ['newcomers' - p. 127] seems to be
partially annexed by the village in which they came to settle. When
joint maritat property is divided after the death of one of the spouses,
the surviving spouse's right to one-half of it has, of course, nothing to
do with the law of inheritance.

Law of Succession
A right of inheritance from one individual to another is unknown in
Minangkabau adat law: either with regard to material goods, to which
the adat pusako applies; or with regard to offices and titles, which are
always family property and remain so though the incumbents change
- sometimes in order to give each branch its turn (p. 129). Hence the
term warih (waris) does not mean heir (p. 81) but kemanakan (p. 126).
There could be no question therefore of any religious jurisdiction in
inheritance disputes (cf. pp. 21, 76); or of wills (but see below); or of
individual 'hereditary' proprietary rights.
The only right of inheritance is that devolving upon families, suku
sections and nagari. For should a family die (i.e. become extinct,
[263] punah), or if its surviving members live elsewhere but do not
wish to resettle in the nagari (below), its family property (including
both offices and titles) devolves on the suku section, which will allo-

* [See pp. 102(n)-3, 107]

VI The Minangkabau Law Area 137

cate it immediately to the other families (or to one of them?) of the

same kampung [clan] living in that village, unless the family had split
up earlier (gadang manyimpang) - p. 125), in which case the other
part of the subdivided family gets the property; but residential plots
etc. do remain in the same suku section. Should the last survivor or
only family of that clan die out, then the property remains that of the
suku section concerned. If the only family of a suku section in the
nagari dies, then the nagari inherits the property and can subsequently
re-allocate it.
Not only in the border areas, however, but also among headmen and
rich men in Agam, and in the areas of the padri sect, is an individual
right of inheritance to pancarian [personally acquired] property be-
coming increasingly common, 6 following the male line in accordance
with Moslem law. It appears in a moderated form in places where
- as in Painan and Air Haji - half the inheritance is passed on from
the father to his children and the other half becomes pusako property;
and is more radical in e.g. Indrapura, where the children get every-
thing. It sometimes takes the form of giving such property before death
- and sometimes also the widow receives part of the inheritance. It
is not the task of our administration to work against such a reform. Nor
do wills in cases of voluntary submission to European law appear to be
unknown, though there is reason to question the legal validity of such
submission for this purpose.

Land Law
The most important right of all is the right of avail over land and
water, hak ulayat, expressing itself in the usual ways (p. 95f.). In most
areas ulayat right is held by the nagari, and in the heartland (and out-
side?) extends to every acre, whether tilled or untilled, of the soil to
which the population feels closely attached. In many regions, however,
the ulayat right is held severally by the core-families in the village
(pp. 126, 129), and only reverts to the village if the family dies out,
and with it the suku section concemed. As regards the village federa-
tions, the right is sometimes ascribed to the rajo (p. 131), but some-
times explicitly denied to him. Land subject exclusively to this right
[264] is caHed tanah ulayat. Strangers pay to the community endowed
with the right of avail a periodic fee (bungo tanah, bungo kayu, bungo
pasir, etc.) for the profitable use of it. Permanent transfer of the right
of avail appears tobe impossible (see, however, p. 140).
Adat-ownership of land (respected by ISb. 94(f.)/1874, s.l) is held
138 Van Vollenhoven on lndonesian Adat Law

by the families living in the village, or (till his death) by the individual
reclaimer of virgin land; the word harto bando seems to include all
immovable property subject to adat-ownership. According to some
informants, individually owned land - rare in the heartland - may
never be alienated because of the inheritance right of the family;
according to others, not without the permission of the head of the
family or of all warih (p. 125). According to yet others, it may be freely
disposed of, though the mamakor kamanakan must be informed. Pre-
sumably this is an institution in which adat law is in a state of growth
(p. 24). Family Iands, often widely scattered, may not be alienated,
wasted, or - except when the family is splitting up - divided. lt is,
of course, permissible to increase its value, and to utilize it profitably,
but it may not be distrained upon or encumbered, except for purposes
tobe mentioned shortly. There is thus a great difference between adat-
ownership and European individual ownership. Nevertheless, ordinary
sales of family land are beginning to occur, either with, or even with-
out, reserving the right to buy it back within a fixed time Iimit. For the
building of roads or irrigation works land is requisitioned for an
indefinite period, not expropriated. Neither individuals nor families
may acquire land, or (when moving residence) retain land within the
domain of a village other than the one in which they reside; which is
one of the manifestations, sometimes no Ionger observed, of the ulayat
right of the nagari. In important transactions about land the presence
of the village authorities and the four adjoining neighbours is required.
For the situation regarding the land of suku section or nagari, see
pages 136-7.
Temporary tenancies (p. 100) are, it seems, found where certain
ulayat lands are either used for short-term cultivations (e.g. of sugar
cane), or are given to a non-village member for a limited or unspecified
period for cultivation or other purposes; neither of these activities
[265] count as occupancies giving adat-ownership. Also suku land is
allotted on this basis for residential plots. Such temporary tenancies are
(in all cases?) granted orally in the presence of the village authority
and (especially) of the heads of the ulayat-holding families. People have
sometimes wrongly concluded from the existence of these tenancies
(never of wet fields?) that a great deal of land must be in individual
ownership (pancarian land), which - at least in the highlands - is
not the case. Such lands cannot, it seems, be alienated or transferred in
return for loan.
The right of use of land (p. 100) occurs there where, either through
VI The Minangkabau Law Area 139

temporary allocations, ganggam ba(r)untuek (pp. 128, 136), with the

agreement of all warih - e.g. to each of three family branches (jurai)
in turn, or to particular mothers - or by virtue of the pusako right
itself (p. 235f.), certain people are temporarily privileged to use certain
parts of the immovable family estate (such Iands then appear to be
under the surveillance though not in the control of the mamak). But
the normal right of use is that which all the family members (primarily
the women) in the village have over the proceeds of the family property
in accordance with the mamak's dispositions - unless they are wilfully
idle. Newcomers to the village, who cannot yet have their own family
property there and who have lost their property rights in their old
village, can only to a limited extent gain a share of this user right in
respect of the property of the family that gives them protection (p. 127).
The right of use cannot be alienated.
Whoever wishes to occupy virgin land requests his mamak for a
piece within the right of avail of his family, that is if the latter is an
ulayat holder; if not, the mamak asks the village authority (i.e. the
headmen) on his behalf for a piece of land over which the nagari has
the ulayat right.
Share-cropping transactions - mampa(r)duokan, half-sharing, etc.-
are known, and require the presence of the village headmen; renting
land is rare; lending land between spouses more common.
When land is tobe sold, distrained for debts (p. 143), or given over
in return for a money loan, close relatives have a right of preference.
A tenancy in return for loan, preferably in favour of a member of the
family or of a related branch of it, implies the profitable use of the
[266] land for at least a few seasons; the creditor-tenant may not press
for the return of the money. What was said about alienation on page
138 applies to tenancy of individually owned land. As regards family
land such tenanoies, starting with the most recently acquired family
land, is permitted (but not obligatory) in only four cases, that is if the
family requires money for: a) the family burial ground; b) the wedding
of a daughter of the family; c) the appointment of its panghulu
(p. 129); d) the payment of a judicial fine imposed upon one of its
members and not already paid by other members from their personal
assets (utang tangah medan). In addition, this transaction appears tobe
obligatory if it is necessary for the payment of the family's own
debts. The land transaction is concluded by a visible act in the pres-
ence of the people listed on pages 128-9: sometimes by making a
notch in one of the main doorposts of the house, nowadays often by
140 Van Vollenhoven on Indonesian Adat Law

mak!ing up a written document as visible token. The tenant-right is

often subject to an annual recognition of the owner's right in the form
of a basket of rice from the harvest, or to a periodic repetition of the
transaction itself. The land remains redeemable (tabuih or taur) at any
time (p. 103). Even if the transaction is later followed by a transfer of
proprietary rights, jual (is the outward sign of this agreement the
placing of posts or stones?), the possibility of redemption is not irrevoc-
ably lost (therefore, not a 'sale'), and no more dependent on the
creditor's consent than before (which would amount to the same
thing); but the actual chances of subsequent redemption are rendered
exceedingly small (-), because it can then be effected only by paying
at least double the principal sum. Indivisibly fused in this concept of
jual are therefore both what we would call pledge and what we would
call sale with an inalienable right to buy back. This transaction is there-
fore impossible with a person or family not belanging to the village.
Here and there a form of adat-mortgage (which does not, therefore,
require the landtobe handed over for use) seems to exist.
Negative prescription of land rights is unknown. For tanah rajo see
page 134. Family houses are presumably regarded as immovable goods.
The prohibition of alienation of ulayat or pusako land is not Ionger
generally observed (p. 137).

Law of Chattels
In the case of adat-ownership of goods other than land and water
- slaves, too, until 1875- the same rule holds as for landed property,
[267] except that the free disposal of movable pancarian property (e.g.
forest products) is far more readily considered to be lawful, and that
there is no question here of a right of avail (p. 106). Transfer of
movable pancarian property through sale, harter or gift is of course
frequent; the movable product of pancarian property is Iikewise
pancarian. lt seems doubtful whether the inalienability of movable
pusako goods (p. 135) is or can be always enforced. The movable
return on family property (e.g. rice, money) is itself also family
property; so when government taxes are recovered from this income,
this means also a change of adat law, albeit a harmless one, which is
then preferably disguised as the fictitious result of mupakat and
sapakek [mutual consultation and agreement].
Title names (galar, pp. 129, 136) are part of the pusako property.
The ijab contract, which is reported to exist in the southern areas,
appears to give one party the right, against payment of a small gift as
VI The Minangkabau Law Area 141

a tangible token, to buy a specified object from the other party at a

future time, i.e. to have it transferred then against money paid or
promised.
The right of use enjoyed by family members extends of course also
to movable pusako property (does this also involve temporary alloca-
tions- p. 139).
About profit-sharing, hiring, money and other loans, etc., the infor-
mation is scanty, probably because these sorts of transaction are them-
selves rare (this is almost certainly true of wage employment); never-
theless, lively trading takes place among the Minangkabau. Adat
partnerships are not uncommon; partners are called urang barakanan.
The limitations mentioned on page 140 also apply to 'pledging' (as
security, not for user?) of movable pusako property; jual [transfer]
transactions of such property are unlikely to exist.
Voluntary suretyship seems to be unknown (if it does exist, is it
based on a promise without a visible token?). Mutual or reciprocal
assistance (p. 111) is known. It is not clear which transactions in-
volving movable goods (p. 106) require the presence of headmen and
witnesses (do cattle sales, for instance?).
Debts which cannot be met from a man's personal property after his
death cannot be claimed from another person. Debts of individual
[268] family members may not be paid out of family property, except
for judicial fines (utang tangah medan, p. 139), and then only, when
necessary, through the encumbrance and not the alienation of pusako
property. Debts owed to individual tradesmen and incurred by the
appropriate family head, however, were regarded as family debts and
could thus be claimed from the family.
The Minangkabau have repeatedly been praised as honest traders.

Law of W rongs
The Minangkabau law of wrongs has in common with the Acehnese
and Gayo-Batak law of wrongs that it provides sanctions for adat rules
in every area of adat law, sanctions which it would be impossible to
divide into civil and criminal. But it distinguishes itself favourably, and
remarkably, from both other law systems in that it enumerates these
impermissible acts exhaustively: not in the style of our own statutory
definitions, but rather in the style of the (explicated) headings of our
Dutch categories of special delicts ('offences against the public
authority', 'maltreatment', 'fraud', etc.). The twenty categories of
wrongs, the so-called undang undang nan duo puluh or 'twenty com-
142 Van Vollenhoven on lndonesian Adat Law

mandments' therefore leave ample scope for the development of the

law while checking arbitrariness, and they are quite unlike a codifica-
tion or legal text book. They comprise (1-8) delicts against property:
1) theft, 2) robbery, 3) robbery with violence, 4) verbal fraud, 5) mate-
rial fraud, 6) arson, 7) slight damage, 8) severe damage; and (9-20)
wrongs against the person: 9) wounding and manslaughter, 10) assault,
11) poisoning, 12) offences against good morals, 13) slight abduction,
14) severe abduction, 15) denial of physical freedom, 16) wrongs
against the public authority, 17) causing a disturbance, 18) challenging
another to fight, 19) fighting, 20) incitement and slander.
Marrying within the clan (p. 134) is classed as incest (sumbang)
under (12); ignoring a new mupakat rule (p. 130) as a wrong against
public authority under (16), etc. (Where do negligence and infringe-
ments of title privileges fit in?) Did such a penal law deserve to be
summarily set aside after 1873, and replaced by our one-sided statute
book?
The legal sanctions are sometimes fixed, sometimes maximal. They
are mostly fines of varying severity, the heaviest being the blood-money,
[269] bangun (dandang, diat), for manslaughter; next, the lesser
'injury-money' or pampeh, and so on. Besides these, the death penalty,
personal hostageship, corporal punishment and exposure to public
ridicule (the last three as alternatives to fines) may be inflicted. These
punishments, too, can be coupled with compensation, propitiatory gifts
(p. 116f.) and expiatory or reconciliatory ceremonies (p. 134). If neces-
sary for the payment of a fine or compensation of the twenty command-
ments, family property could be encumbered (p. 139). Evidence of
remorse reduces the severity of the punishment.
Sanctions for wrongs are directed either at an individual or at a
group having the right of avail (nagari, etc.- pp. 95-7, 136). Vicarious
Iiability of members of the family, suku or village does not exist, except
what has been said about tariek (p. 132) and utang tangah medan
(p. 139). The phrase tanggung mananggung [collective suretyship]
made people believe in all sorts of vicarious responsibility without the
facts having been properly researched. The element of wrongful intent
is of little consequence in accomplished wrongs (p. 114).
Prosecution at the instigation of the community authority seems to
be almost unknown in the law of wrongs.
In the sphere of the indigenous administration of justice the adat law
of wrongs is probably still being applied (-). In the sphere of govern-
ment jurisdiction it has been destroyed by the Native Criminal Code
VI The Minangkabau Law Area 143

and [the judicial regulations of the] Sumatra Reglement: in the first

place by abolishing adat delicts, and secondly by tuming bangun and
all other adat fines into civil reparations as distinct from criminal
punishments (-).

Legal Remedies
Self-help was, of course, common in the past.
lt seems most improbable that the private property of the family
members could be subject to judicial distraint for the payment of law-
fully incurred family debts (p. 141). The fact that family property is
[270] liable to distraint has nothing to do with vicarious liability of
family members, but follows from the fact that the family itself has
legal personality; property which has been in family hands for the least
length of time is seized first.
The individual is responsible for his own debts with his pancarian
property and, formerly (p. 133) his person (hostageship); but not with
his 'share' in the family property, for such a share does not exist
(p. 138f.). The family paid only when the debt had been incurred
through its representative headman (p. 141) or - though this is
optional- before quittance by means of utang tangah medan (p. 139);
thus not, for example, for the tax debts of its members.
Liability after death does not exceed the deceased's estate. The suku
and nagari are never liable for the debts of their members. Do tariek
actions (pp. 132, 142) indicate a former vicarious liability of kinsmen
and fellow villagers?
As a punishment for (specific?) wrongs such as contempt of an adat
judgment (p. 133) there is buang sirih (waming) or, in the case of
recurrence, buang puluih or buang tingkarang (ostracism). The family
of a man convicted under the twenty commandments can, by expelling
him from the family circle, buang utang, cease tobe concemed with his
convictions. Anyone who constantly violates adat law can be punished
by total banishment from the village, buang bidak, which is considered
to be a most severe punishment. Since govemment courts can no Ionger
punish marriage within the clan (p. 142), such banishment has become
the only sanction for this adat wrang. Killing a person thus outlawed
went unpunished. Banishment is clone by the dubalang (pp. 130, 134)
according to sharply defined adat fonns. (Are all these four adat
punishments for men only?)
Against a mamak or an andiko there is, in addition, the sanction of
deposition at the request of their people, either by all andiko of the
144 Van Vollenhoven on Indonesian Adat Law

suku concemed, or by all other andiko of the nagari; it is clone (in a

[271] judicial process?) in the village hall. Every member of the family
(especially a woman) and every panghulu from the same suku can
demand redress for the unauthorized actions of a mamak.

Development of this Adat Law

The spontaneaus growth of this adat law (p. 24) has already revealed
itself in the development of a more centralized administration (p. 130f.),
the stronger bond between genitor (father) and children (p. 137), the
emancipation of the offspring of slaves (p. 128), greater freedom in the
disposition of pancarian property (p. 137), the sale of family land
(p. 140), and the permissibility of owning land in another nagari
(p. 138). In similar fashion one can perhaps expect a gradual modifica-
tion of the principles of unanimous decision (pp. 132, 133) and of the
inalienability of the pusako crops (p. 140), and so on. If no guidance is
given to the development of patrilineal inheritance (p. 137) there may
be a danger that Islamic law will take over entirely (Snouck Hurgronje,
1906, 11:316-7). The most important prerequisites for the development
of the adat law here appear to be: the restoration of govemment by
traditionalleaders - albeit under the guidance of properly trained and
transferable indigenous administrators in the !arger complexes; restora-
tion of the adat constitution of the nagari and of its administration of
justice under the supervision of the indispensable higher tribunals;
repeal of [some ill-conceived judicial] sections of the Sumatra-regle-
ment; and the recognition of the ulayat right [of avail] instead of the
assumption of State dominium of 'ownerless' land.
(--)
 CHAPTER VII

CENTRAL AND EAST JAVA, WITH MADURA •

[October, 1917]

[504] [We can now give] our attention to two islands said to be
without adat law or to have only a scanty remnant of it. As long as
it was believed that Javanese adat law had to be explained in terms
of what was known about Java itself, there was bound to be dis-
appointment owing to Iack of information. When it came to be
thought that the adat law of Java, like its language, could be leamed
from the Javanese principalities, ** there was confusion as weil, for
much had been changed or superseded here by royal institutions and
despotism. The adat law of Java finds its appropriate place only
when we recognize it to be part of that of Indonesia, with the same
propensities and shortcomings as in the other law areas. lt seems
strange that there is no work on Javanese custom of the same value
for the study of adat law as that of Snouck Hurgronje on the Acehnese
and Gayo, Adriani and Kruyt on the Baree-speaking Toraja, or
Liefrinck on Bali and Lombok. When Van Ossenbruggen (1916: 15-16)
notes how 'precious little' is known about Javanese village life and
thought, he seeks an explanation in the fact that, on this island in
particular, Europeans live 'alongside, not among, the indigenous
population', and he considers it necessary therefore to have a scientific
expedition sent out specially to Java. Let us hope that such an
expedition would give due attention to adat law.
(--)
[508] Central and East Java and Madura are Moslem areas. Conse-
quently, the adat law shows elements of Moslem law - for instance
in the marriage contract, the dissolution of marriage, and various
matters conceming inheritance and pious foundations. Protestant

• [Selections from pp. 504-654 of the original.]

** [i.e. the four self-governing states in Central Java: Surakarta, Mangkune-
garan, Yogyakarta and Pakualaman - Ed.]
146 Van Vollenhoven on Indonesian Adat Law

Christianity, which has about 14,000 adherents, is to be found in

Majawarna and surrounding areas (since 1851); in various parts of
Kediri (since 1845); in Malang and environs (since about 1870);
Besuki (since 1885); the region of Japara (since 1852) and Salatiga
(since 1870); and there are about 350 Catholic Christians, mostly in
Kedu. Elements of Christian origin appear in the adat law of these
serani or keristen. The half-Hindu inhabitants of Tengger appear to
have gone over to Islam. Among these former Brama-worshipping
pagans, who kept a fire constantly burning in their homes, the Brama
priest - who was sometimes also the headman of the village -
was called dukun; their marriage, whether or not solemnized by
a prior Moslem ceremony, used to consist of a communion meal of
andent origin with this dukun (Eindresume III:265; and more
recently, Kohlbrugge, 190 1).

Deiimitation of the law area

[509] When a Sundanese from the Priangan region says that he is
going 'to Java', he means the purely Javanese-speaking regions, that
is, Central Java and the prindpalities. The present adat law area is
in one sense much wider and in another narrower. Narrower, because
it excludes the residendes [administrative divisions] of Yogyakarta
and Surakarta; wider, because it embraces Madura and East Java
as well as Central Java. Consequently our law area includes eleven
of the seventeen residendes of Java and Madura: Pekalongan,
Semarang, Rembang, Banyumas, Kedu, Madiun, Kediri, Surabaya,
Pasuruan, Besuki and Madura. Perhaps the eastern fringe of Cirebon
could be included as well. Madura, and the residendes of Besuki and
Pasuruan with their considerable Madurese population, exhibit some
peculiarities in their adat law, for example, with regard to tukon
[marriage gift] and pamesi [fishing tribute], which would warrant
a distinction between two law districts (p. 34) but not, it seems, a
division into two law areas, that is, one comprising Central Java (and
Surabaya) with 20,000,000 Javanese, and the other East Java (ex-
cluding Surabaya) and Madura with 4,500,000 Javanese and Madurese.
Among Indonesian immigrants to this area one finds in particular
Makasarese, Buginese and Balinese. In some of the large centres the
immigrants have their own headmen and town quarters (- -).
[510] The former extent of the Javanese principalities is a com-
plicated question. In 1812, Kedu (the old residency, without Bagelen)
was annexed by the Government, and in 1831, after the Java War
VII Central and East Java, with Madura 147

(1825-1830), Bagelen, Banyumas, Madiun and Kediri were torn from

the principalities. But until then, their territory still comprised six of
the present-day residendes of Java; and as late as the 18th century
even the entire law area was within the realm of Mataram. Yet anyone
expecting to find Mataramese instead of Centrat Javanese adat law, or
attempting like Raffles (-) to know the local adat law from its
distorted form in the principalities, would be badly deceived. The
key to understanding the adat law of this area - as of Bali - is to
[511] distinguish between ancient indigenous village institutions and
subsequently imposed royal institutions, to examine the interaction
between them, and to recognize that it is only where royal institutions
are manifested in the apanage system that they suppress village
institutions. It then becomes evident that, in this law area, the
influence of princely government has left all the major features of the
old adat law unimpaired. When, however, the [East Indies] Company
and subsequently the Dutch Government took power, they did not
continue the moderate suzerainty the princes had exercised in this
law area, but adopted the despotism usual in the principalities them-
selves; our subsequem agrarian policy (i.e. the Land-rent system) of
1817 and the Cultuurstelse[l of Van den Bosch, made the crudest
inroads into indigenous land rights, village organization and the
authority of local Ieaders. (- -)

Jura! communities
[512] Apart from the self-governing states of the past, tobe discussed
later, the only jural communities in this area are the territorial village
and the self-constituted community (lndonesian company or asso-
ciation; Indonesian Christian parish). There is no trace, now or earlier,
of higher or other jural groupings; the administrative 'regency' was
never a jural community; indigenous water corporations are unknown;
the Javanese or Madurese family is a kinship group lacking the
practical cohesion or unity which in South Celebes and Bali keeps
members of the family together even though it is no Ionger a discrete
jural unit. The formation of villages (desa) in agrarian Java rarely
led to the rise of cities, which was such a powerful factor in the
development of mediaeval Europe. In the Javanese era only a few
royal capitals (such as the former Majapait), or major ports (like
Tuban and Gresik), were cities or comparable to cities, and they have
since fallen into decay.
In spite of the Hindu term desa (in High-Javanese dusun; in
148 Van Vollenhoven on lndonesian Adat Law

Madurese dhisa - cf. the Hindu term nagari among the Minangkabau)
there is as little reason to doubt the Indonesian origin of the Javanese-
Madurese village as there is to doubt the Indonesian origin of the
Balinese village. The assumption that the municipal character of the
village dates back only to the beginning of our administration (as
stated in Eindresume 111: 131) may be true of the mancanegara
territories [the former outer provinces of the empire of Mataram]
and Madura, where before 1831 and 1885 respectively, the Javanese
sovereign govemment may have suppressed village autonomy, but for
the rest this assumption is invalidated by the fact that the desa
constitution is at all times and in every respect closely interwoven
with family law and inheritance, land law, the law of chattels and
the law of wrongs. It took a long time before the Javanese and
Madurese desa was understood to any extent. Raffles, or rather
Muntinghe, 2 'discovered' it around 1813 in Java; but the initial
measures relating to it (village electoral law, Ieasing of the village to
[513] the village headman as a device for collecting land-rent) show
the ignorance about it. Its agrarian position became known by the
investigations of 1867-9 (Eindresume; AB 14); its organizational
structure and system of communal services through the Eindresume,
and the writings of Fokkens and Hasselman; its other characteristics
as a result of miscellaneous contributions. The Govemment was hold
enough to state (Bb. 6576 of 1906) that the desa held no more
secrets for it.
As in Bali, ancient villages can be distinguished from modern. The
great majority of the approximately 30-33,000 villages are still of the
old type, comparable to the Acehnese gampöng, the Palembang dusun
or the Minahasan wanua: that is, a territorial community of individual
members the active interests of which are much wider than one would
expect of a political unit. Despite four centuries of Islam, the
traditional village still has its guardian spirit (danyang desa) housed
in a tree. The village controls family interests as weil as numerous
matters conceming land and livestock (as is clearly reflected in the
income of the village headman). The inhabitants often maintain
common stock pens, granaries and rice nurseries. Compulsory mutual
aid is not restricted to the interests of the village as such, but extends
to the agricultural activities of the individual villagers and to the
religious observances aimed at ensuring a good harvest. On the
amalgamation of villages it is often stipulated that each should retain
its guardian spirit and therefore the right to organize its own traditional
VII Central and East Java, with Madura 149

harvest meal (sedekah bumi, sedekah desa). As in South Sumatra,

the young men are, or were, under the control of their own Ieader
(lurah or kepala sinoman; in Madura, senoman) and the girls some-
times under their lurah kanoman, for the carrying out of communal
services. The corporate capacity of the village merges with that of
the collectivity of its core-villagers (until the ordinance of 1906, and
to some extent even thereafter). The village treasury, storage bams,
bank and school are looked upon as westem innovations; communal
village Iands, exploited for the benefit of the general village economy,
seem to be unknown. The modern village, however, typified by the
Christian village inaugurated by the reclamation of virgin land, has
a village treasury from the start, and matters of family or estate are
[514] less of a village concern; voluntary co-operation often replaces
traditional mutual aid, and the village community is therefore usually
- though not always - confined more or less to its official political
functions.
The Javanese and Madurese villages differ in appearance. The
Javanese village, often obscured by a dense hedge and trees, like an
island surrounded by inundated fields, consists either of a single
village (desa) or of a principal village (krajan) with subsidiary hamlets
(dukuh, pedukuhan, cantelan). A hamlet often has, or may acquire,
its own boundaries (nowadays determined by the Administration), and
may even be elevated to desa status by the splitting up of the parent
village into two (how this took place under adat law is not reported).
A new hamlet of the Javanese parent village retains the danyang desa
or patron spirit of the latter (what happens after splitting up?); only
independently established hamlets have their own danyang. Conversely,
villages are nowadays often amalgamated, the original desa sometimes
retaining a certain measure of independence; but it would appear that
this process is sometimes carried out too hastily and artificially. The
Madurese village, on the other band, usually consists of a series of
farmsteads, scattered or in small clusters, each with its own fields
and livestock pens. lt resembles a collectivity of farms, or of dispersed
hamlets, rather than a local unity. lt is only along the coast (for
example near the saltings) and in the irrigated sawah complexes that
the Madurese village, too, forms a contiguous whole.
The traditional significance of village territories in this law area
is not only that of a sphere of political authority; it is above all the
agrarian domain over which the village has a right of avail. This
identity is, for instance, clearly revealed when it is reported from
150 Van Vollenhoven on Indonesian Adat Law

Kediri and Probolinggo that a village boundary is determined by the

answer to the question of how far the villagers may go into the forest
to tap the aren trees. In case of doubt or dispute the boundary would
be fixed by the village headmen concerned, together with their peoples.
The name bumi satabone is sometimes mentioned for the fields within
this 'husk' of village wasteland. The information from Madura on this
point is scanty. Even the defined territory of a hamlet in Java often
has the character of a separate area of avail under the wider juris-
diction of the principal village (similar to the position in Karoland
[ 515] and Palembang), there being specific information to this effect
from old-Bagelen and Kediri. (-)
It was usual for village domains to adjoin in the densely populated
centre of Java, but elsewhere intermediate tracts of land could be
found over which no desa exercised a right of avail and it was
especially on such strips in East Java that Madurese immigrants have
founded many villages. In the Bindresurne (III:l36) this no man's
land is called bumi gumantung (pending or suspended land) or bumi
sroko. On the one hand, our Administration, in addition to its under-
standable efforts to round off village territories neatly through ex-
changes of land, interfered most arbitrarily with the boundaries of
village domains in the interests of the Cultuurstelsel; on the other, to
make it possible to hold village headmen everywhere responsible for
maintaining order, it apportioned all land in Java to one desa or
another. Thus the vast no man's land of the Ijen plateau was some-
times assigned to the little village of Licin at the foot of the mountain,
and sometimes to Sumbercanting. (- -)
[516] The municipal villages in Java often have their common
burial ground or grounds, shaded by cempaka or semboja trees, over
which the village authority presumably exercises no more than
administrative control. A few villages have also the grave of their
founder, a hallowed place where harvest meals are held. If, by virtue
of the right of avail, a village road or village green is made on in-
dividual land, adat-ownership of the land remains extant, though
dormant; if made on unoccupied land it would also probably be
regarded as being administered, but not owned by the village. The
village courthause (bale desa), fairly common in West Java where it
is often found in the village square, is lacking in Madura and the rest
of Java. But in Central and East Java villages have (or used to have)
their sentry post (gerdu, cakruk) at the village gate; and often their
Moslem house of worship or langgar. Like the mönasah in Aceh, this
VII Central and East Java, with Madura 151

appears to have been the village hall before the advent of Islam
(16th century), which took it over. Even today the langgar, as weil as
being used for sembahyang [daily prayers] and Koranic instruction,
serves as a guest-house and meeting place. In Madura, however,
langghar seems to mean a kind of reception room, a raised Open-
fronted structure built on residential premises; but village prayer
houses appear to be rare, except perhaps in the fishing villages. The
name is reminiscent of the langgara or langkara of South Celebes
(introduced by the Javanese?). The village school (sekolah desa), the
village rice granary (lumbung desa) and the village bank (giving credit
in rice or money) date from a later period. The term lumbung miskin,
meaning 'paupers' bams', which were found here and there, is now
commonly used for such rice bams belanging to Indonesian Christian
parishes.
[517] It is worth noting further that, besides the rural villages of
the interior, there are also the suburban villages or kampong in the
principal towns, lying tucked away behind or between the main streets
on which mostly Europeans live. Should such an urban village have
agricultural land, it is again called a desa (-). Other types of
municipal village without agricultural land are the fishing villages in
Madura, in the Sidoarjo region, along the Segara Anakan [south coast
of central Java] and elsewhere; or the saltmakers' villages in Madura.
(--)
[518] Although there are no self-goveming states left in this law area
[the central Javanese principalities being treated as a separate law
area], they have left too much of a mark on popular institutions to
remain unmentioned (-). As far as the days of the Company and part
of the 19th century are concemed - i.e. after the Hindu states of
Tumapel and Majapait, and after the first Moslem coastal states of the
16th century, like Giri and Demak- three kinds of royal govemment
must be distinguished: the powerful and truly Javanese empire of
Mataram, the Balinese vassal state of Balambangan (Java's eastem
comer), and the relatively younger little Madurese states.
Initially, the entire law area, excepting the present-day administrative
districts of Pasuruan and Besuki, feil within the realm of Mataram
(the present-day principalities of Yogyakarta and Surakarta). But here
a distinction must be drawn. On the one hand, there were the outer
provinces of the empire, consisting partly of the pasisiran, the maritime
or 'beach' provinces of Pemalang, Demak, Pati, Tuban, Surabaya and
the islands of Bawean and Madura, and partly of mancanegara
152 Van Vollenhoven on Indonesian Adat Law

(external) territories: Banyumas, Madiun, Blitar. All these were under

provincial governors, and were virtually unaffected by the royal
apanage system (pp. 14 7, 165) which had such adverse effects upon
the adat law. On the other hand, there was the imperial heartland, the
nagaragung, comprising the present-day principalities together with
the present-day district of Kedu (including Bagelen). The heartland
territories were almost entirely allotted in apanage and governed from
the capital (or the two capitals), though sometimes they seem to have
been under resident provincial governors as weil (-).
From this Mataramese territory the entire northern stretch of the
pasisiran was sliced off first (1743) - old-Tegal, north Pekalongan,
north Semarang, old-Japara, north Rem bang, north Surabaya, Bawean
- and as Company's territory ('Java's Nort-Eeast Coast', 1748-1806)
placed under a Dutch governor at Semarang, though the Mataramese
officialdom (provincial heads, etc.) and other indigenous institutions
remained intact. Old-Kedu (part of the heartland) followed in 1812,
its apanage system being abolished. The remainder of the pasisiran
was lost in 1831 - south Pekalongan, south Semarang, south Rem-
bang, south Surabaya - together with the mancanegara regions of
[519] Banyumas, Madiun and Kediri; and also old-Bagelen, part of
the heartland. Though we retained the Mataramese bureaucracy every-
where, we abolished the nagaragung apanage system in Kedu-Bagelen.
I t remains to be noted that, since the splitting of Mataram into
Yogyakarta and Surakarta (Solo) in 1755 (to which the princedom
Mangkunegaran was added in 1757, and the princedom Pakualaman
in 1813), the mancanegara territories of Madiun and Kediri belong
partly to Yogya and partly to Solo, and Banyumas almost entirely to
Solo, as does most the heartland area Kedu-Bagelen. The 'Javanese
era' of all these regions is often called jaman kuna, the 'olden times'.
The vassal state of Balambangan, comprising approximately the
present districts of Pasuruan and Besuki, initially fell under Klungkung
[Bali], later under Mataram (1639), and finally under no one. Around
1740 it lost part of its northern (pasisiran) fringe to the Company, and
the remainder in 1767 and 1768. Little seems to be known of the
government institutions under its pangeran ('prince') or ratu Balam-
bangan; under Mataram it was systematically depopulated.
Finally, the three little Madurese states, that is, those of the
panembahan of Madura (present-day Bangkalan with Sampang and
Arosbaya), of Pamekasan, and of Sumenep. In the old days they
constituted a single Mataramese province under a governor or wedana
VII Central and East Java, with Madura 153

Madura with three subordinate 'regents' (TBG, 1891 :367). In the

middle of the eighteenth century the regents became independent of
both Mataram and the provincial governor. They were recognized by
the Company and later by the colonial government as independent
headmen, and even treated as minor sovereigns soon afterwards (-),
but their royal institutions were, of course, largely derived from
Mataram. Pamekasan was annexed in 1858, Sumenep in 1883, and
finally, in 1885, Madura (Bangkalan-Sampang), thus bringing this
entire law area under colonial rule. During this period of more than
a century, therefore, the title 'Prince of Madura' did not mean the
ruler of the entire island, but only of its western portion.
[520] Although, before 1743, the pangeran of the island of Bawean
stood in the same relation to Mataram as did the provincial head of
Madura he was never regarded as a sovereign by our government. With
the annexation of Java's North-East Coast he became an ordinary
regent (bupati) of the Government. When his family died out in 1869,
the office itself was abolished.
Generally speaking it can be said that the benefit conferred by all
these monarchies was their organization, above the Ievel of village
and village justice, of a higher Indonesian system of government and
higher Ievel of administration of justice, which was the more necessary
because of the Iack of village federations in Java and Madura. Their
adverse effect lay in the destructive influence of Mataram upon the
desa system and land rights in its heartland (the nagaragung), just as
the little Madurese princedoms, though to a lesser extent, affected
the system of land rights in their areas. The greater part of Central
and East Java remained free of this particular evil. The fortuitous
fact, however, that Raffles received so much of his information from
the little princedom of Sumenep, and mistakenly regarded the central
Javanese principalities as the heartland of pure Javanese adat Iaw, had
the result that we began to introduce into Central and East Java the
very despotism from which these areas had been spared by Mataram
itself. As far as Madura is concerned, evidence of royal despotism is
found in the numerous emigrations to East Java, by which, besides
those in search of work and material gain, also many landowners
sought to escape from the sovereign's arbitrary power. In the outer
provinces [mancanegara] of Mataram, especially in Banyumas and
Madiun, the influence of the old princedoms is still apparent from the
privileged or exempted villages which will be discussed below. Al-
though, until 1812 and 1831, Kedu (Kedu-Bagelen) also belonged to the
 154 Van Vollenhoven on Indonesian Adat Law

apanage territory of the nagaragung, its village organization, though

impaired, was not destroyed, for it flourished again after 1831. Also
the popular law regarding land remained much more nearly intact
than in the present-day principalities - although the term gaduhan,
sometimes employed in Kedu for land in adat-ownership, probably
points to a former Mataramese tenancy at will, as it would have been
more likely for such Iands to be called milik or duwen.
Although in this law area, too, the royal absolutism of the Javanese
era is plainly reflected in arbitrariness as regards village rights, land-
owners, compulsory services, etc., it is certainly not for us to pass
[521] judgement. We may undoubtedly plead that our administrative
actions and regulations - land-rent system, cultuurstelsel, forced
labour and its aftermath, the fallacious agrarian measures of later date
- were aimed not at personal gain but at economic welfare and the
national interest. Nevertheless, this could mean little to the Indonesian
whose rights were grossly infringed; and for far too much of the 19th
century this national interest was not that of Indonesia, but of Holland.
The privileged or exempted villages (desa perdikan, merdika, mer-
dikan) are of four different kinds, two of which really belang to an
entirely different context. The villages of the pekuncen (custodians of
graves) are exempted only in the sense that taxes and services due to
the sovereign are confined to the duty of maintaining and guarding
a sacred grave; and the villages of the mijen (privileged people) are
under hereditary apanage granted to the representative of some privi-
leged family, so that levies by this family took the place of levies by
the sovereign. In other respects these two types of villages seem to be
normal communities under normal village government.
The villages of the pesantren (religious seminaries) and those of the
keputihan (pious men), were genuinely different. These two types owe
their privileged existence to royal favour or generosity; they did not
fall under the heads of the outer provinces or, as in the centrat territory
of Kedu-Bagelen, under the officials of the capitals, but directly under
the sovereign hirnself (nowadays under direct government adminis-
tration ?) . They were exempted from all or most feudal services and
levies. They are as much jural communities as is the ordinary desa (-).
With the pesantren villages - among them famous ones, though
mostly now decayed, in the Panaraga area of Madiun and elsewhere
- either a desa territory or a piece of no man's land was granted in
adat-ownership by royal charter (piyagem) to a particular person and
his descendants for the purpose of maintaining a religious seminary.
VII Centrat and East Java, with Madura 155

The headman of such a village is a landowner and tax collector for

[522] his own benefit (-). lt should be remernbered that the upkeep
of seminaries in this area can also be achieved by entirely different
means. The numerous schools of Surabaya and Madura, as weil as the
more recently established ones in Kedu, subsist on their own income,
including religious levies (pitrah), agricultural earnings of the students
and charitable gifts, and the villages in which they are situated are
ordinary desa communities.
The 'pious' villages (desa keputihan, putihan or mutihan) are very
similar to the biböeh or waköeh villages in Aceh. They were exempted
from certain taxes by the sovereign - or by longstanding usage? -
because the presence of certain pious men (wong putihan, 'white'
people; as against wong abangan, 'red' or impious people) meant that
religious services and many other religious duties were observed much
more faithfull there than elsewhere. In places like old-Bagelen these
villages are numerous. In 1916 it was said they were about to be
abolished. I t is obvious that a village is not exempted merely because
it is occupied by mosque personnel (desa pekauman, kauman) whose
position frees them from compulsory services. (-)
Because there is no Ionger any question of self-governing states in
this law area, the only indigenous jural communities, besides villages,
are the self-constituted business associations, societies and Christian
parishes. They are the more important because in Java, too, there has
been an awakening of organized Indonesian activity in the 20th century
- in economics, politics and labour organizations - and because the
Christian communities are tending to emancipate themselves from
European tutelage. So far, for want of anything better, many asso-
ciations follow the European pattern, but many others are created
without any predetermined pattern in customary fashion, the members
accepting their new legal obligations through the payment of a bond
[523] sum (panjer). What is needed, if associations are to flourish as
they do on Bali, is an individualistic outlook, which is still lacking,
particularly in Centrat Java; a keen commercial sense; and finally,
a few simple but practicable models and rules for associational life.
(--)
Individuals
[524] At the time of the former monarchical governments in Madura
and in the Javanese portion of this law area, the most important social
classes comprised the sovereigns, princes (arya, sentana) and high
state officials or priyayi (in High-Javanese: priyantun). Even after the
156 Van Vollenhoven on lndonesian Adat Law

annexation, the class of royalty and of priyayi remained, and until

recently priyayi registers were being kept.
The Madurese attitude towards higher classes is far more easygoing
than that of the Javanese. In Central Java one may hear sentana used
for nobility, and kentolan for people of good family, but with a few
exceptions they do not seem to be distinguished from commoners.
There is scarcely an Indonesian middle class; after the higher
classes one comes down to the ordinary, impecunious villager,
the wong cilik ('little man'), wong wijah ('common man'), or their
principal category, wong tani (peasant). The few well-to-do Indonesians
outside the priyayi class are usually denigrated by such predicates as
haji, usurer, or haji-usurer. Yet one cannot speak of a haji class, even
though the Govemment used ignorantly to give privileges to them. The
few slaves found in this law area until 1860- even later in Madura?
- were domestic and not plantation slaves.
Far more important for the daily life of the village, and a key to
the adat law of Java, is the typical lndonesian classification of
the desa inhabitants into three groups of villagers. First, those
who have belonged to the village from its beginning, the core-
villagers, married, having a homestead and fields, and enjoying full
[525] rights and duties in the village. They are called wong baku
('stock', 'stock-member'), wong ajeg ('regular man'), wong (oreng) *
kenceng ('tight man') wong ngayah ('toiling man'), oreng pengaje,
kraman, gogol ('crowbar'); and later, when labour for the sovereign
or government became their hardest liability, also sikep ('serviceman')
or sikep ngarep ('leading serviceman'), kuli kerig, somahan kuwat,
kuli baku, kuli ajeg and even simply kuli. The Bindresurne correctly
defines this class variously as 'descendants of the first settlers', 'persons
originating from the desa', 'well-to-do persons', 'the well-to-do peasant
dass constituting the core of the population: the landowners of the
vlllage'. Occasionally women are mentioned as core-villagers (a widow
on behalf of her sons?); normally core-villager status devolves from
father to son or other male descendant.
In the second rank are the secondary residents or people without
arable land of their own. Either they have their own residential plot
(lindung, wong ngindung, plot holder; or wrong kendo, 'loose' people;
or budi, budiyan, share-croppers; or specifically oreng paroan, teloan,
half-sharers, third-sharers; later kuli ngendo); or they have a house

* [Wong is Javanese, oreng Madurese, for 'man' or 'people'.]

VII Centrat and Bast Java, with Madura 157

of their own on another's plot (wong dempel, mondok tempel or

dempel, 'attached people', mondok karang or pekarangan, numpang
bumi, dunung omah). Such secondary residents, who may or may not
be related by blood ta care-villagers, have anly a half-share in village
rights and duties, and therefare sametimes came ta be called sikep
cilik ('little' sikep) ar sikep buri ('rear' sikep).
Finally, there are the dependants and hangers-an: married ar un-
married children, sans-in-law, wives, paid farmhands (bujang), an old
father or mother living with his or her son, and so on. They are
called rayat [dependants, subjects], dunung nusup, dunung mondok,
mondok glongsor, rangkepan ('lining'), juru sawah [farmhand],
numpang belaka; in Madura oreng kendo. Married hangers-an having
their own family room (gandok) under a common roof (emper) are
called mondok selusup ('splinter falk'), mondok slosor ('inserted folk'),
mondok ringkuk or ringkel or sumpel [self-providing lodgers]. In
view of their exemption from compulsory services (at least from the
principal services, but not always from auxiliary duties), this group
came to be called angguran. Like the anak samang of Minangkabau
they have virtually no rights and duties. Secondary residents and
Iodgers together, or (elsewhere) either of these classes, are often cailed
[526] wong numpang and oreng nompeng (not menumpang), 'stacked
people'.
Here it should be noted that although our govemment policy of the
last century has been one of continuous confusion and disruption of
these class distinctions (the unbearable weight af aur land-rent system
and compulsory cultivation and other services made the people them-
selves efface their adat distinctions in an attempt to distribute the
burden over many more shoulders), this classification can still be
clearly recognized as the basis of the traditional desa rights and
duties (-).
The scheme outlined here still needs to be expanded a little. With
regard to rights and duties the owners of dry fields (tegal) are some-
times included in the second class of villagers, as weil as divorced or
widowed men (dubo) withaut a grawn-up daughter in the house, and
the aged but able-bodied (jempo or jomo kenceng, tepo, buh; in
Bawean, repoh). The newly-wed (kemanten anyar) and newcomers,
as weil as the aged and infirm (jempo reto, jimpen), belang ta the
second and third class. The newly-wed and newcamers wha at first
are tax-exempt, are sometimes cailed wong anyar [new peaple], wong
sengkan, kempitan ('thase carried under the arm'; children in arms?),
 158 Van Vollenhoven on Indonesian Adat Law

te/epeh or- Iater- kuli sigaran ('split' kuli, i.e. with divided duties),
kuli gotong.
The order of rank then becomes: (a) core-villagers owning wet
fields; (b) owners of dry fields, (c) hangers-on, children-at-home,
newly-wed, newcomers and invalids.
People pursuing an occupation other than agriculture, like fishermen,
traders or owners of beach fish-ponds, are sometimes called magang.
Whether they belang to the first dass depends on whether they form
the core of the village population, as they would for instance in a
fishing village or beach-pond village.
To be sixteen or so and still unmarried (-) is thought to be
[527] disgraceful for girls and boys alike and is therefore rare. The
unmarried, being regarded as minors, belong to the third dass of
villagers. The generic term for young bachelors is sinoman, kanoman,
jaka, perjaka; on Madura and Kangean and in Banyuwangi lanceng;
on Bawean perjakha. The use of the old village hall, langgar, as a
dormitory for young men is not a Javanese custom. As in Bali, widowed
and divorced men who do not remarry have none or only some of the
rights and duties of villagers. Several Christian villages, therefore, have
regulations obliging them to remarry within a certain period, on pain
of losing their share in the village lands, that is the privileges of village
membership. (-)
There is, in all probability, a correlation between this social classi-
fication and another important feature of the village constitution.
Since it is the married core-villager, owner of both residential and
arable land, who participates fully in all the village rights and duties,
there is only one gracious escape for him when he feels hirnself
growing too old for bis duties: to transfer his land to his heirs during
bis lifetime (-). A man who voluntarily - or through being wi-
dowed? - steps down after having been a first-class villager is there-
after - and this is the crucial point - counted among the village
elders (marakaki, merkaki, pancakaki, tuwa tuwa, kamituwa, winitu-
wa, pinituwa, wong tuwa desa). Their important role as disinterested
[528] experts on village affairs and constant advisers to the village
authority (also in Madura?) will be discussed shortly.
(--)
[529] Every person in Java and Madura (formerly even the slaves)
had and has legal capacity, the eligibility for rights and duties. Besides
natural persons and jural communities, however, there are also 'insti-
tutions' which are the bearers of rights and obligations. As in Bali
VII Centrat and East Java, with Madura 159

and Lombok, where land and movable property may 'belong to' a
temple, there are also in this law area mosque Iands, movable mosque
property, mosque treasuries, or property belonging to religious schools
(pesantren), representing a much broader conception than that of
wakap (consecrated) land and movables with which a mosque or
religious school has been endowed; in West Java such Iands and
movables, about which nothing is known with certainty, would pre-
sumably be wakap.
Because of the bilateral kinship system a married woman's capacity
to transact is here equal to and as unrestricted as that of a married
man - the application of our Civil Code to the Javanese or Madurese
woman would only impair her position. Parents act on behalf of their
young children - child betrothals and marriages come to mind. Full
legal majority for older children seems to depend on whether they
have left the parental home. Consequently they do not attain majority
upon marrying if they continue to live in with the parents of one of
them. Discrimination against unbelievers (pasek), for instance with
regard to the giving of evidence, applies only in Moslem courts.
(--)

[Village Government]
[530] An unexpected feature is immediately apparent in the adminis-
tration of the Javanese and Madurese village. In this law area the col-
lectivity of core-villagers, or of core-villagers and secondary residents,
asserts itself far less prominently than in the older, or even the younger,
villages of Bali. There are, admittedly, reports of annual desa meetings
(kekumpulan labuh, 'the meeting of the beginning of the rains' -
Bindresurne III: 101, 193, 238), for the annual arrangement of mutual
aid in desa services, for the application of the village right of avail,
and for other village interests (meetings which in the past helped to
spread the idea in administrative circles that all arable Iands were
redistributed every year in every village). But such meetings are of
course entirely different from the regular meetings of the members
of the Balinese desa association. In Central and East Java and in
Madura the village is and was primarily govemed by the village head-
man or municipal head [petinggi, bekel, lurah, etc.]. Viilage assernblies
to discuss important matters, as prescribed by the 1906 municipal
ordinance, must therefore often have been an innovation, or eise
remained a dead Ietter. But here, too, the villagers still have the
traditional, retroactive right to complain (anggogol) by going in pro-
160 Van Vollenhoven on Indonesian Adat Law

cession to a higher authority, a right of mass protest which persists

in the principalities and in processions to priyayi and district officers
(processions to the civil commissioner, however, are punishable under
the police regulations of 1872, which show no understanding whatever
for this genuine form of democracy).
There are, however, two important constraints on the one-man
character of desa government. First, the village of municipal headman
in Central and East Java (and Madura?) regularly consults with the
retired core-villagers - the previously-mentioned elders - either with
all of them or, as other information would indicate, with a few
(selected by himself?). But it is explicitly stated that these elders do
not and did not act as a miniature parliament in relation to the village
authority (Eindresume III :235, 238).
Secondly, the adjudication of village disputes, at any rate those of
an agrarian nature, has always been in the hands of these elders and
not of the headman. For one thing, in accordance with the right of avail
of the village it was these elders who surveyed and distributed the
rice fields and allocated the use of water, with the result that they
were better informed than any one eise when it came to settling
agrarian disputes; for another, they were less partial than the active
core-villagers who themselves owned arable land. In a large part of
this law area these elders are also said to advise on the distribution of
deceased estates. (-)
[532] In cantrast with the roJe of the elders, the circumstance that
the headman also has fellow-members in the village administration
may hardly be said to Iimit his power. For the Iatter, quite unlike their
counterparts in the old Balinese desa, are merely his dependent
benehmen. In a small village and sometimes even in a !arge one they
are often his kinsmen. Everywhere they are charged with certain duties:
to substitute and deputize for the headman, to notify people (including
the headmen of subordinate hamlets) of his decisions and to run
errands; to take care of matters to do with irrigation, forestry, live-
stock, registers, religion (Islamic, sometimes Christian), policing (e.g.
compliance with desa services), and so on. One must not think that
there is one dignitary for each function. On the contrary, in !arge
villages or in villages with people of widely divergent occupational
standing (e.g. peasants alongside merchants or craftsmen), there could
be as many as a dozen dignitaries for one function; while in small
villages one man will often be responsible for two or more functions.
On the other hand, it seems that deputizing for the headman is
VII Central and East Java, with Madura 161

almost always the duty of a particular person; also the care of

Islamic affairs is a responsibility never assumed by the headman
himself.
(--)
[536] Is it traditional for village headmen in Java to be freely elected
by their villagers? This seems improbable merely in view of the large
numbers of villages in which, at the time of the enquiry of 1868, the
headman was descended from the founding family, a situation which
is the rule in the exempted desa. Until the present day the headman
in many villages has been related to his predecessor (e.g. AB 11:198;
XIV:77). The many appointments in former days of a minor repre-
sented by a temporary caretaker, are also incompatible with the idea of
free elections; moreover the term lotteri, which occurs in Banyumas
as well as in Palembang, indicates an importation, something felt to
be of European origin and un-Indonesian. In fact, free elections in
westem style were non-existent, not only in the outer provinces, but
also in Madura at the time of the princes, and in the Javanese princi-
palities. Many Javanese in 1868 still remernbered their introduction;
the way they were applied bare no resemblance to democracy. The
questionable value of Raffles' data of 1812 on the free franchise in
the vicinity of the town of Surabaya has been stressed by Hasseiman
(1901 :204-5), Van der Kemp (1916:362-3) and others.
On the other hand, it is difficult to believe in an automatic here-
ditary succession to the office of headman in view of the frequent
manifestations of popular will, and of the fact that the successor may
be a son, son-in-law, brother or nephew. Presumably, therefore, the
[537] adat formula regarding appointments is the same as the pre-
scription in section 16 of the Ordinance of 1907 for elections in
exempted villages: the incumbents to be elected 'as far as possible
with due regard to the principle of hereditary succession'. Such succes-
sions, based on 'inheritance plus election'- i.e. not strictly hereditary
but a permanent exercise of a function by a particular family from
which a representative is elected from time to time - occurs in many
parts of Sumatra, Bomeo, the Moluccas, Timor, Bali and Lombok.
This power of election probably used to rest with the villagers. From
Japara and Sidayu it is even reported that there had to be unanimity
on the appointment, an indication that in those days the idea of a
majority outvoting a minority was unknown. It probably used to be
a condition for electors - that is, men only? - to be core-villagers,
although in later years mention is made of many other 'electors', even
162 Van Vollenhoven on Indonesian Adat Law

jaka [unmarried men] (-). lt does not appear to have been essential
for the headman-elect to be a core-viilager at the time of his election,
though it was certainly generat practice. One frequently reads of a man,
and sometimes a woman, acting as head of the village on behalf of his
immature relative, or of her immature son or grandson. One also reads
of viilage head-women (e.g. Eindresume 111:281), who in that case
arrange for their office to be performed by a paid substitute.
The headman hirnself - at some places in consultation with the
viilage elders, or the core-viilagers, or with the more prominent of his
henchmen - would choose new assistants from among the core-
viilagers, and often from his own family, the latter choice being
motivated by the consideration that in a subsequent election for the
headship there should be sufficiently experienced candidates available
among his relatives. Only in respect of viilage scribes and religious
functionaries does one sometimes read of the recruitment of outsiders.
As long as the heads of subordinate hamlets are nothing but henchmen
[538] of the desa headman, this rule also applies to them; once they
achieve independence their office likewise becomes subject to the
principle of inheritance-plus-election. (-)
To understand the remuneration of viilage officials it is necessary
first to understand the system of desa revenue. This is important,
because the Mataramese administration, and later our own, used this
system for their own purpose.
Productive viilage property is, or was until recently, uncommon.
Viilage funds to yield interest (bank savings accounts, etc.) are of very
recent date, and seem to have been introduced first in Christian
viilages. Landed property reclaimed at the instance of the viilage com-
munity is usually parcelled out soon after reclamation, and only rarely
(e.g. in Pasuruan) does one read of viilage land, i.e. land genuinely
owned by the viilage community, being given out for rent or for
share-cropping. Everywhere the viilage receives recognition dues
(mesi, pamesi) from outsiders who cultivate its land. That is about
all. Viilage treasuries did not exist - perhaps just as weil in the old
days.
As regards other forms of viilage revenue, we westemers naturally
think first of taxes in kind or money. Such compulsory contributions
did indeed exist as part of the system of compulsory mutual aid which
will be discussed later (-). Called urunan, they were for such things
as harvest festivals, viilage prayer houses, and headmen's houses. 1t is
very rare to read of proper municipal taxes (mostly in fishing viilages
VII Central and East Java, with Madura 163

and urban wards?). The wang becer (incidentallevies) and the tax on
residential plots (pengawangawang), of which there is an occasional
report, may be in this category. The tax-payers were the core-villagers
(at least, only they were fully liable), but in a few villages privileged
by Mataram, tolls used to be exacted from all strangers passing through
the lawang seketeng ('one-penny-gate').
Far more important, however, is the institution of village service,
levied for all possible village purposes and likewise conceived as a
form of mutual aid. lt includes the maintenance of desa roads, sentry
[539] posts, fences and irrigation works, and rendering guard duties
and regular and casual services to the headman and his assistants. As
indicated earlier, the basis on which regular services are required
(reflected also in the regulations for compulsory cultivation imposed
by our Administration) is that elderly core-villagers had a limited
liability, ordinary core-villagers a full liability, while newcomers and
the newly-wed go from exemption to fullliability in the course of a few
years. Persons exempt from normal village services were called wong
angguran (or pemanggur), 'idlers'. Villagers of the second dass are
only occasionally liable for auxiliary service, and then only within the
residential part of the village, while dependants or Iodgers have no
personalliability. The adage, that village service is founded upon land,
is therefore true in the sense that it is the core-villagers, normally the
only permanent land owners, upon whom such service rests. There is
no indication, however, that their burdens are proportionate to the
size of their holdings.
These basic principles are modified in two ways. First, in an
emergency there can be a general call-up (gugur gunung, 'landslide' -
symbol of an act of God?), for which not only the core-villagers (who
can also enlist the help of their dependants) but also second-class
villagers are liable. Secondly, for some services there is an economically
sound system of specialization, organized to distribute the normal
burden more or less equally over the various categories of villager.
Certain groups of people would thus be responsible for cutting wood
and doing carpentry (blandong), and others for road maintenance,
sentry duty, postal delivery, service to headmen, or provision of
game/an music. Each group had its own foreman or lurah. Likewise,
the preparation and staging of desa feasts (and, sometimes, escorting
the headman on his travels) were for the bachelors' group (sinoman,
kanoman) under its own foreman. Thus, while the main rule is that all
core-villagers take part in all desa duties, the subsidiary rule is that
164 Van Vollenhoven on Indonesian Adat Law

certain tasks are the responsibility of specific groups of villagers, with

the remaining chores being done by the rest of the villagers.
(--)
[540] One would, however, completely misunderstand the nature of
these desa duties and of the headman's revenue if one thought them
to be confined to the tasks enumerated above. Unlike our municipal
rates, desa levies and services are not isolated obligations; they are
simply an aspect of a general obligation of communal aid which adat
law imposes upon all villagers of full status whenever village interests
are involved. And 'village interests' are more extensive than westemers
would expect. As in Aceh and other places, they include marriage and
divorce, deceased estates, sale and pledging of livestock (involvement
in transactions in cultivable land are a consequence of the village right
of avail), hunting down wild boars and destructive rodents when
necessary (-), recruiting labour for the rice harvest, organizing harvest
feasts and other ritual meals for the villagers' benefit, arranging the
proper distribution of water, supervising of herd boys, caring for
orphans. Hence, when through an abuse of power by a local bupati
or a govemment official, one or two villagers had been unfairly hit by
an excessive demand for horses or other goods, it was discovered after-
wards that the whole desa community had helped them. Likewise,
when newcomers are accepted by the desa, it is the desa's responsibility
to provide them with a residential site, even if this meant some sacrifice
[541] for the existing inhabitants. A man who slaughters livestock in
the village will therefore take a piece to the headman as a token of
respect.
Adat law can only be understood if this strongly communal element
in Javanese-Madurese life is constantly kept in mind. lt is not seen
only in the remarkable powers which village authorities derive from
the village right of avail, and which they exercise in land sales, in
tenancies in retum for loan (sometimes even in letting and share-
cropping transactions), in requisitioning land for indeterminate periods
in the village interest, and in allocating vacated land to newcomers.
lt underlies such customary forms of co-operation as are expressed in
the collective ownership of cattle kraals (-) or of rice bams, or in the
collective building and maintenance of waterworks. If adat law can
dispense with hereditary servitudes, if a person can own or be the
pledgee of a plantation on another's land without being expressly
entitled to enter upon that land, if irrigation law needs no elaborate
regulations, guardianship no fixed rules, and inheritance no automati-
VII Central and East Java, with Madura 165

cally applicable prescriptions, then the reason is that rights are not
interpreted and exercised after the manner of Roman law, which
makes individual interest predominate, but that the enjoyment of
private property is subject to community interests. All this is particu-
larly clearly reflected in the revenue of the village headman. He who
reads about the sources of the headman's income in Hasselman's report
on desa services (1905) will recognize in the perquisites there enume-
rated all these forms of village involvement. (-) Western short-
sightedness, however, leapt to the conclusion that this was extortion.
Special mention must be made of the fields for office holders, which
occur everywhere in this law area. They are not apanage (i.e. the
privilege of receiving revenue in the sovereign's place without having
a right in the land itself), but cultivable fields to which the holder of
an office is entitled by virtue of bis office, and to the cultivation of
which the villagers are usually obliged to contribute. Two kinds are
[542] reported. A headman may reclaim virgin land by enlisting the
collective assistance (desa service) of bis villagers, and thus acquire
an official field (sawah petinggen or bekelan) the transfer of which
to bis successor seems to be secure only if the latter is bis relative. lt
is also possible for a piece of vacated rice land (gantungan, playangan,
pikulan) to be allocated to the headman or an assistant of bis so that
he enjoys a restricted adat-ownership while in office. Our Govemment
understands the latter type of official field (caton in Madura; bengkok
in Java) to be village property over which the functionary has only
a right of use. Fish ponds, too, may be held in this manner. A headman
(or assistant) might have such properties both in his principal village
and in a hamlet having its own area of avail. Official fields were
exempt from royal taxes, pajeg (-). Moreover, the village headman
was exempt from royal tributory services and sometimes shared the
sovereign's pajeg.
(--)

Law of Kinship
[566] Relatives in Centrat and East Java and Madura comprise three
categories of people: first, those who according to the principles of
bilateral descent 3 derive from a common ancestor or ancestress, but
excluding those adopted by outsiders; secondly, the spouses of these
consanguinious relatives together with their kindred; and thirdly, those
adopted by any of these relatives. Concubines or kept women fall
outside the second category, but children bom out of wedlock by such
166 Van Vollenhoven on lndonesian Adat Law

women come within the first category without any recognition from
either father's or mother's side being necessary (semi-legitimate
children; on Bawean, jodo). On the other hand, the children of purely
temporary or casual liaisons - thus only a small portion of the
children bom out of wedlock - are related only to their mother and
her kindred (illegitimate children or jadah, haram jadah). Semi-
legitimate children are hardly ever found nowadays, for illegitimacy
is either avoided by a temporary marriage to the concubine - this was
the traditional way - or the child is given a fictitious father before
its birth (sometimes in retum for money).
The principles of bilateral descent prevailing in this law area not
only apply equally to the rest of Java, but are the rule in the greater
part of the regions outside Java.
For direct descendants on both sides the Javanese use the term anak
[567] (child), putu or cucuk (grandchild), buyut (great-grandchild),
canggah (great-great-grandchild), wareng, udeg-udeg, gantungsiwur, and
grepak. In addition, there are names not only for all kinds of ascen-
dants (often the same as those for descendants), but also for an older
brother and his children, a younger one and his children, and so forth.
As according to the principles of bilateral descent married people
remain part of their natal kingroup, marriage merely adds another
kindred to one's own. Madurese spouses are called each other's 'made
kinsman', bhalangkep. In Java, parents on each side are called each
other's besan (in Madura bhisan), but this does not count as real
kinship. Though the distinction between principal and lesser wives is
of consequence for dynastic successions in the Javanese principalities,
it does not affect the law of kinship itself. lt is different (also on
Madura) with concubinage among the nobility (ampeyan, selir, gundik),
for it is not uncommon for a priyayi to have up to four wives under
Moslem law and to sustain regular commerce with one or more women
of a lower class whom he does not intend to marry. This situation
should be clearly distinguished from that of a noble who, on the quiet
and often without the knowledge of his high-bom wife or wives,
actually marries a wife of Iowly status (selir kawin, garwa selir). Living
with a selir without marrying her is not shameful according to the
indigenous way of thinking. The selir usually lives in a separate
dwelling, occasionally in an annex on the husband's residential plot,
and naturally does not enjoy the jural equality which this kinship
system confers upon a married woman. Because semi-legitimate children
are at a disadvantage in matters of inheritance and nobility, a con-
VII Centrat and East Java, with Madura 167

cubine about to give birth was sometimes made a wife (selir tabon) by
means of a marriage ceremony, only to be repudiated after her
confinement. To do this, a priyayi or other nobleman with a full
complement of four wives would repudiate one of them temporarily
by the purchased repudiation called kuluk, thus avoiding problems of
revocation, and enabling him to remarry the repudiated wife again
[568] afterwards (see Snouck Hurgronje, 1906, I:369f.). The keeping
of concubines is opposed by Javanese Christianity and by the even
more recent force of Sarekat Islam, but the practice is encouraged
whenever a missionary refuses, for reasons which the Christian Indo-
nesian does not consider convincing, to solemnize a coveted marriage
or to help dissolve a hated one. Living together with a concubine is said
to be rare among Christian Indonesians, and is sometimes a ground
for expulsion from the mission community.
The body of kin is also enlarged by adoption, though by the same
token another body of kin is reduced. Adoption is widespread among
both Christians and Moslems, and is called amek (High-Javanese:
mendet, mundut; Madurese: ngalaq etc.; an adopted child is called
pekpekan, anak pupon, anak mas. Adoption must in theory be sharply
distinguished from the festering of a child, anak kukupan, an action
without legal consequences, but since no outward formality attaches
to it - unlike legal adoption among the Gayo, Dayak, Tonsawang and
perhaps Balinese - it therefore takes place through the actual fact of
continuous care of a child and it is wellnigh impossible for a court to
know which category of child it has before it. If this absence of
formality were merely a result of Islam, whose law and religious
judges forbid adoption, there would perhaps be a reason for the
missions to attempt to introduce an Indonesian conceived form of
adoption among Christian Indonesians; but even among the pagan
Tenggerese no formal adoption has been discovered. Adoption can be
by childless people, but does not seem to be forbidden to those with
children, and a married person probably needs his or her spouse's
consent. Legally the adopted child is virtually equal to the adopter's
own children as regards the law of marriage and inheritance. Hence,
boys would be adopted usually for their free labour, and girls more
for the income from their marriage, than for the addition of offspring
or for charitable reasons. The adat law of the Christian Indonesians
has rightly upheld this resilient institution, though it is condemned
by Islam.
[569] The institution of adoption, which has never been investigated
 168 Van Vollenhoven on Indonesian Adat Law

in this law area, still presents many uncertainties. According to some,

adopted children are equal with fully legitimate offspring; according
to others, they are like step-children. lt is also uncertain whether - as
sometimes appears to happen - more than one child, or an adult,
including a married person, may be adopted; whether there must be
some kinship connexion or a certain age difference between adopted
and adopter; whether also the widowed or the unmarried may adopt;
whether an adopted person may be passed on to another adopter
(improbable); and whether adoptions may be revoked. The permission
of the real parents, if they are known and still alive, is probably
necessary, but in what form? And do any family ties or inheritance
rights remain between the adopted person and his or her original
kinship group? (-) The village or family do not seem to be involved
in matters of adoption. Since adoption is so common in Java, it should
not be too difficult to ascertain the prevailing practices.
In this law area, too, the principles of jural equality leave no room
for adoptive marriages.
As the family here is neither a jural community nor a closely-knit
kinship group, expulsion from it is unknown. Family involvement in
marriage and inheritance consequently means the participation of the
immediate kindred. Succession on the basis of heredity-plus-election
- which in other areas often indicates that an office is vested in a
particular [unilineal] family - therefore means here no more than
the right of one of a person's close relatives to succeed to this vacant
office. Kindred or wangsa are usually limited to the third or fourth
generation descendants of one man or woman. Family ties are re-
inforced among other things by the honouring of deceased parents or
grandparents, to whose graves people go for example to ask 'consent'
to proceed with important transactions (cf. Snouck Hurgronje 1906,
1:432). Children also address the brothers of their father and the sisters
of their mother as 'father' and 'mother'. As elsewhere in Indonesia,
family (or sur-)names in our sense arestill unusual. But it is customary
among high-class Javanese to make the names within a nuclear family
similar to each other, like Kartini, Kertono, and Karlini, or - in the
[570] case of distinguished, double-barrelled names - Wiryodijoyo
and Wiryosudarmo, or Suryondoyo, Suryokumoro and Suryodarwono.
And if - as is the rule in West Java but the exception here - this
similarity is contained in the latter part of the name (Atmodiwiryo,
Wongsodiwiryo), there is some resemblance to our surnames. The
attempt to introduce Christian and family names among Christian
VII Central and East Java, with Madura 169

Indonesians - already to some extent the fashion in East Java - can

only add fuel to the belief that becoming a Christian means becoming
westernized; and it would be an even worse aberration if they were
to be afflicted with family names or parts of names in Dutch style -
such as Van Deventer's inexplicable recommendation in 1913, that
Javanese, depending on their legal status, be named after Javanese place
names with locative prefixes similar to 'Van' or 'Ter' in Dutch
usage (-). Priyayi upon assuming office often adopt a name of their
own making similar to that of their father, which may again result in
something like a family name.
While married people in the lower class often prefix their own name
by Pak or Bok as soon as children are born, other parents call them-
selves after their first child: so if the child is called Kamirah, the
father becomes Pak Kamirah and the mother Bok Kamirah, and this
appellation (karan anak) can survive even the death of the child. There-
after, people sometimes change their names to avoid bad fortune, or
when they become a priyayi or village headman (-), and so on.
Though this change of names is rare among Christian Indonesians
- excepting, alas, at baptism itself- calling themselves after a child
is still deeply rooted even among them.
The organization of a population register for the indigenous popu-
lation can only succeed if it is done in accordance with eastern
nomenclature.

Law of M arriage
[571] The law of marriage in this law area is made up of a combi-
nation of jural equality deriving from bilateral kinship, eleuthero-
gamy,* and the formal requirements of Islam. The usual characteristics
of the marriage are: it is contracted between two parties of equal
standing; during the marriage busband and wife are personally and
materially on an equal footing, and they can terminate it singly or
together. In the course of time the picture has sometimes become
difficult to recognize, because Islam and Christianity have influenced
and distorted it. Moreover, contemporary research poses the question
of whether matrilineal or patrilineal elements survive in the marriage
of today.
Among both Moslems and Christians the marriage is initiated by the
proposal of the young man, or actually of his parents who arrange all

* [Van Vollenhoven coinage, 'freedom of marriage'.]

 170 Van Vollenhoven on Indonesian Adat Law

marriage affairs. Here, too, the proposal is made through go-betweens,

congkok (on Bawean, however, through the father and the village
headman); it is accompanied by gifts (sekket batton in Madura, sanggan
in Java) and addressed to the girl's parents (not only to her father)
or to the person customarily acting on their behalf (eldest brother, etc.).
Once agreement is reached there is a legally binding betrothal, based
not on bare consensus but on consensus accompanied by a visible
token. In Java this is a betrothal present or pledge, peningset ('means of
tying up something'), tengeran, pemanjer, which is given by the young
man to the girl herself (not her parents) and which usually remains
hers after the conclusion of the marriage, though it may sometimes be
given back upon the payment of the mas kawin [marriage gift] . On
Madura, [references to] lamaran as against tongngebbhan, or pamoghi
as against lancengan, seem to point to an exchange of such betrothal
gifts, but the information is far from clear. Among Christian Indo-
nesians the betrothal must often be announced in church (as soon as
it is binding, or near the time of marriage?). The betrothal, being a
matter between the respective parents in which the element of affection
usually remains in the background, does not lead to a closer acquain-
tance between the young couple; but it does have legal consequences,
[572] namely that the woman, if she fails to fulfil her promise of
marriage, must retum the peningset to the man (and hence may not
alienate it before the wedding?), that the man forfeits his gift if he
fails to fulfil his promise, and that all wrongs against a betrothed
girl's virtue are equated with those committed against a married woman
(a commendable adat rule of which the Criminal Code of 1915 fails
to take account) (-). Betrothal therefore does not involve the com-
pulsion to marry. The peningset, though given by the party (i.e. the
man) who initiates the transaction, binds not only the party he seeks
to bind, but hirnself as weil. A further application of the rule con-
ceming non-fulfilment on the part of the woman seems to be the
information from Madura that the man may break off the betrothal
(and, hence, receive back his betrothal gift?) if, before the marriage,
the two women who customarily examine betrothed girls declare her
to be no Ionger virgin. Betrathals usually last only a few weeks or
months, but on Kangean they may last for years, and among Christians,
too, they tend to be long. Betrothed persons are called pacangan or
tagon, on Kangean bakalan. Apart from unfaithfulness by either party
(with the consequences mentioned above), a betrothal could be broken
off, after mutual consultations by the respective parents, upon the
VII Central and Bast Java, with Madura 171

voluntary return of the peningset by the girl and the acceptance of it

by the man. Should one of them refuse, they would remain bound,
but owing to the Iack of sanction - neither the 'council of priests'
nor the landraad court being particularly concerned about the betrothal
gift - both the offer to return the gift and the acceptance or refusal
of it seem to have become rare nowadays. The information available
does not reveal what changes in betrothal customs take place with
second or subsequent marriages.
(--)
[573] Unlike such areas as the Minahasa, where, even though there
are no specific rules of preference, endogamy or exogamy, marriages
outside a particular kin-group are considered undesirable and are
therefore rare, in this law area marriage is largely free from kinship
ties. There are, however, three kinds of restriction. First, there are
prohibited degrees of relationship, often up to the fourth degree -
brothers and sisters, and so on - but these vary locally and therefore
do not coincide with the precise prohibitions of Islamic law. Some-
times marriage between full cousins is prohibited because it is consider-
ed to Iead to rusuh (disorder) - though deviations can be rectified,
for instance through the prescribed 'wrestling contest' (ila-ila glem-
peng) between the two fathers. Elsewhere such marriages are actually
preferred, even among Christians, but prohibited between full cousins'
children. Secondly, everywhere the marriage of an elder sister takes
precedence over that of a younger sister. And, finally, there is the
prohibition on two siblings marrying into the same family, for this
would create a double relationship-in-law between their parents (besan)
and similar complications. But there are ways of circumventing these
rules in order to marry whomsoever one wishes, provided certain
other prescriptive rules are observed. These other rules are not the
same for Moslems and Christians. Protestant adat law - sometimes
the product of spontaneous growth, sometimes of deliberations by the
church council or the people themselves, or sometimes of a missionary's
decision - insists on free consent of the parties, though Javanese
nature often proves to be stronger than doctrine. Although Moslem
law, too, gives priority to free consent (p. 82), it contains a far-
reaching exception: on the one band the control the father or father's
father has over a virgin of any age; on the other the control any blood
wali has over a boy under age. In practice, first marriages and first
betrothals are still arranged by the respective parents in accordance
with their own wishes, but on Kangean, it is said, the girl has a
172 Van Vollenhoven on lndonesian Adat Law

[574] greater say in the matter. After westem fashion, but consonant
with this attitude, the Protestant mission requires the consent of the
parents or acting parents at the conclusion of a first marriage, but their
refusal may be superseded by the consent of the full church council.
While a Moslem may have up to four wives (one is the norm among
common folk), Catholics and Protestants may have only one. A poly-
gamously married Moslem in Java who becomes a Christian convert
is no Ionger required first to repudiate the extra wife or wives.
A Moslem may not marry a woman until the expiry of the iddah
period (about a hundred days) after the dissolution of her marriage
through death or divorce or following upon her confinement if she
happened to be pregnant at the time her marriage was dissolved. A
similar but more restrictive rule, prohibiting the remarriage of a
Protestant woman within approximately three hundred days, is un-
fortunately derived from European law. The circumstance that two
marriage candidates had been married to each other before is not an
impediment to a new marriage between them, even if it was the
woman's adultery that had led to the dissolution of their first marriage;
and under Islamic law, it is an impediment only if there has been
a threefold repudiation not followed by a subsequent marriage to
another (p. 82). And if, as formerly in East Java, representatives of
the Protestant church will not remarry former spouses (Deuteronomy
24, Jeremiah 3), this usually only results in concubinage, with all its
undesirable moral and juridical consequences. In keeping with indi-
genous views such remarriages are, however, unattended by festivity
or ceremony (-).
There is no minimum marriage age for boys or girls among Moslems,
and a girl in this law area is usually married off by her parents when
[575] still very young (it is done, Moslem fashion, by the father as
'compelling wali' - p. 82) without consideration for her wishes. On
Kangean, however, where girls have more say, they marry later, and
should a girl be forced into an unwanted marriage she will often run
away to the man of her choice. If she retums home with him after a
few days, her parents will usually give their consent (cf. the elopement
marriage on Ambon and other places). Such marriages arealso reported
from Bawean under the term buru tataban, and from the Madurese
areas under the term adhat pelloq. Among Protestant Christians, the
church council often sets a minimum age for girls, say fourteen or
fifteen, but even where this is not so a missionary will refuse to
solemnize a marriage if the boy or girl is too young.
VII Central and East Java, with Madura 173

The preference for marrying off daughters in order of birth (above)

occasionally leads, among Moslems, to a pro forma marriage of an
older daughter to a young boy or an old man in order to facilitate
the marriage of her younger sister. Among Moslems the blood wali
has the right to prevent marriage with a man of a lower social class
(such marriages require the consent of both the blood wali and the
woman). Protestant adat rules sometimes prescribe a certain standard
of material well-being, as weil as membership of a Christian parish or
adherence to Christianity. Neither Shafiite Moslems nor Christians (in
respect of church marriages) may marry adherents of another faith (-).
[According to several reports] the village authority is involved in
the conclusion of all marriages (nowadays for registration purposes),
the village headman, scribe and messenger receiving tribute gifts
which may be greater when the bride marries into another village.
[576] The village authority is likewise involved (and paid material
tributes) in the dissolution of marriages and sometimes also in the
revocation of repudiations. The village Moslem officiant, too, renders
his paid services when marriages are solemnized. On Bawean the
village headman plays a part in the marriage proposal and in setting
the date of the wedding. Nevertheless, it seems clear that in this law
area the influence of the village in matters of marriage is declining
and that marriages have long ceased to be a village interest in the
way they are in Aceh. The adat regulations of Christians do not even
mention the village. Marriage is more the concern of relatives, and the
couple are in fact married off by their kin.
Here, as elsewhere with Moslems, the old indigenous features which
accompanied the conclusion of marriage have given way to Islamic
law, because the validity of marriages has for centuries been judged
by the regency penghulu who, under the supervision of the regent,
applied the rules of Islam as the only standard. What has remained,
purely as custom, are the divination of fortune; the festive procession
to the bride's house before (on Bawean, after) the Moslem marriage
ceremony in order to 'hand over' the bridegroom, the food for the
feast and perhaps a trousseau; and the festive wedding meal (-). From
the start of the festivities the bridal couple are called penganten (-).
The circumstance that in Central and East Java the bridegroom
observes the old indigenous custom of paying the bride's family a sum
of money, tukon (from tuku, to buy; or in High-Javanese: tumbasan),
has given rise to the view that this represents a rudiment of a former
bridewealth (-). Yet there are no exchange marriages or other patri-
174 Van Vollenhoven on lndonesian Adat Law

lineal institutions in Java, nor a partial refund (by a reciprocal gift) of

[577] the tukon, which is spent on necessities for the marriage (even
among Christians), and there is no evidence whatever of a form of
service marriage in lieu of payment (-). Tukan is a means by which
the bridegroom's family helps to defray the expenses incurred by the
bride's family.
(--)
[578] Marriage by elopement or flight, which still occurs on the
smaller islands (above) as an indigenous form of marriage, is ap-
parently not (any longer?) known on the mainland of Centrat and
East Java. There is no evidence that marriages by elopement require
any formality, except to be concluded according to Moslem law (by
an emergency wali or government wali - penghulu hakim - as has
been explicitly reported from Bawean). But once the eloper returns
home with his wife he must make the event generally known (-).
The Moslem conclusion of the marriage (ningkah, peningkah) is the
same here as everywhere else: a contract between the bridegroom
and the marriage agent or wali of the bride (her blood guardian
or wali nasab, emergency wali, government wali, assistant wali -
see pp. 83-4). Here, too, it is established custom for the religious
official, as the authorized agent of the blood wali, to conclude the
contract with the bridegroom, although it is sufficient for him merely
to supervise the transaction.
(--)
[579] Immediately after the Moslem conclusion of the marriage a
conditional repudiation (taklek) of the newly married wife by her
husband takes place, in accordance with a royal edict [dating back
to the old empire of Mataram] . The pronouncement is made in a
stereotyped but locally varying formula, prompted by the marriage
official and repeated by the busband who knows no better than that
this is part of a valid marriage. In these formulas, which consider-
ably strengthen the position of the wife, it is declared that the
repudiation will release her from the marriage if the husband stays
away for a certain period (from seven months to two years, whether
at sea or on land) without sending word to her, or if he maltreats her,
or fails to provide for her for a certain period, and so on, provided
[580] that she herself gives notice (rapak) of his misconduct to the
religious judge and declares that she is not prepared to toterate it.
According to Moslem law the marriage contract obliges the husband
to make his wife a marriage gift, which is contractually specified, or
VII Central and East Java, with Madura 175

is determined later in relation to her social standing, or is in accordance

with the custom of the land. In this law area such a gift is called
mas kawin or sri kawin; it has slight value compared with the
indigenous gifts (tukon, etc.); usually it is determined by custom and
is paid late.
(--)
[581] What now are the personal and financial relations between
the spouses after marriage? Here the indigenous notion of jural equality
comes to the fore, and Islam and Christianity recede into the back-
ground. The custom that the young couple move in with the parents
of one of them is generally known, and it entails the duty of the
[582] busband or the wife to work for his or her in-laws as long as
they live there. [But] this is in no way a service or adoptive marriage
(pp. 168, 174). Many Christian parishes prohibit this form of co-
residence as a source of domestic trouble. Should the couple move into
a house of their own - on Bawean this happens immediately after
marrying - they may do so in any desa. There is no evidence of
avoidance [pelali] of parents-in-law.
The woman's blood wali ceases to play a role after her marriage,
and unless it is dissolved he no Ionger has authority over her or the
obligation to assist her. Jural equality entails that the wife (rabi) may
act without her busband (laki), as he may do without her, and that
where necessary one spouse can represent the other in transactions or
in court. In most Javanese (and Madurese?) households the wife
manages the common finances, and trades at the market on behalf of
the family. A clear indication that a married woman controls her own
property is the fact that, after her death, a custodian is chosen from
among her relatives to take charge of her property for the benefit of
her under-age heirs. This rule, though rightly adopted as a premise in
the adat regulations of Javanese Christians, does not prevent mal-
administration by her relatives, and has therefore been amended.
(--)
[583] As regards the initial contributions and the money earnings of
the spouses the same principles apply as are found in other parts of the
archipelago with bilateral kinship organization. Everything the man
brings into the marriage (barang gawan, barang bektan) remains his;
everything the woman brings into the marriage, including her betrothal
and marriage gifts, remains hers. But the judicial application of this
rule is hampered because usually no attempt has been made to stipulate
which things belong to each category (the adat rules of Christians
 176 Van Vollenhoven on Indonesian Adat Law

prescribe that a record be kept). But apart from this - and in direct
contradiction of Islamic law - the spouses share in common all
accessions during the subsistence of the marriage, whether derived
from their joint labour or (elsewhere) from the labour of one alone
(-), but what comes to one of them by way of inheritance or gift
is excepted; there is, however, no accounting for assets spent by one
spouse without the other's objection. Such common marital property
is called guna-kaya or gana-gini in Java and ghuna-ghana in Madura.
[584] Even the religious judge dared not, traditionally, ignore this
fusion of marital property and he takes due account of it; should he
seek to accommodate it to Moslem law he will - as in Aceh, Minang-
kabau and other places - construe it in the form of a business
partnership (sarikat, sirkat) between busband and wife. After disso-
lution of the marriage this common property is in some places divided,
with half or two-thirds going to the busband - the latter proportion
is derived from the somewhat analogous rule of Moslem inheritance
law. In the past, the division could instead be based on an estimate
of the value of each spouse's labour. The Protestantmissions attempted
to add to this common gana-gini property such goods as had been
brought into the marriage, but they have probably now given up this
inexplicable endeavour. It is puzzling why Willinck (1909:623-4)
should have presented the common marital estate as a derivation from
matriarchy. Husband and wife together administer the common estate,
or else one leaves its care and disposition to the other.
(--)
It is the husband's duty to maintain his wife, even while they are still
with the parents of one of them; it is not clear whether this require-
ment is based on old indigenous law. In Moslem law it is too difficult
for a woman to prove inadequate maintenance as a ground for divorce,
but the formulas of conditional repudiation (above) solve this problern
for her.
[585] The traditional dissolution of marriage is, on the face of it,
wholly superseded by the law of Islam or Christianity; yet it has not
vanished altogether. In keeping with jural equality, and because many
marriages are arranged by the families without regard for personal
feelings, dissolution is common. On Kangean, however, where a
woman has more say in her marriage, the tie between busband and
wife is said to be less tenuous.
In the old kinship order a marriage could be dissolved at the instance
of either party or by mutual consent, and in the presence or with the
VII Central and East Java, with Madura 177

cognizance of the village or other authorities. Unilateral dissolution

by the husband, usually called 'sending away' (mamole, etc.), has
continued in the Moslem form of an ordinary repudiation (talak), for
which no reason need be given, and which may be twice revoked
(ruju) during the iddah period (pp. 82, 88). It becomes irrevocable
only with the third repudiation. A subsequent other marriage of the
woman makes it possible for a man to remarry his former wife on the
old footing (i.e. with the right to three repudiations). This form of
talak is common among Javanese and Madurese and usually takes
place, without concrete symbols, once at a time; but a threefold
repudiation is permissible and then becomes immediately irrevocable,
though this is still followed by the iddah period. The cognizance of
the authorities was restored by ordinance in 1895, in the sense that
the man must within three days of repudiation or revocation notify
the district penghulu or other marriage official under whose jurisdiction
he now falls (-). In accordance both with Moslem law and with
popular ideas which coincide on this point, a repudiated woman is
regarded as a wife as long as the repudiation is revocable.
Very little is left of the unilateral dissolution of marriage by the
wife. She can go to the religious judge (regency penghulu; nowadays,
'council of priests') to ask for a divorce (pasah) in those rare cases
which are recognized by Islamic doctrine but difficult to prove. In
[586] addition however- and this provides most of the cases before
the priests' council in Java and Madura - she can, by virtue of the
conditional repudiation (above) and as prescribed in the taklek formula,
terminate her marriage by giving notice (rapak) that her husband's
behaviour is unacceptable to her. This notification, in which she is
accompanied by two witnesses, is not a processual claim for legal
redress, and the missionary (Hoezoo, 1874) who raised alarm about
the scandalous judicial practice of the penghulu in a rapak case missed
the point that there is here no question of a judicial process. Even
this conditional repudiation can be revoked after the wife's notification,
unless it was either a threefold conditional repudiation (which is
exceptional), or included a formula stipulating the retum of the
Moslem marriage gift, which has the effect of tuming the repudiation
into the redemption of it. Apart from these two possibilities, pasah
and rapak, the traditional equality in the man's and the woman's right
to divorce has disappeared under Moslem law. The result is usually
that the woman does not accept this restriction but simply runs away.
Should she dissolve her marriage through the pasah procedure she
178 Van Vollenhoven on Indonesian Adat Law

forfeits her claim to the Moslem marriage gift (mas kawin) if it has
not already been paid.
The dissolution of marriage by mutual consent occurs among
Moslems either in the almost unrestricted form of a repudiation by the
husband with his wife's agreement (in which case all that has been
said about talak remains applicable), or, rarely, through buying the
repudiation (p. 89). Usually the latter method is an indigenous insti-
tution in Moslem wrapping - hence its indigenous term: mancal laki
('kicking oneself free of a husband'). The price of the repudiation
(yatra pemancal, duwit pemiwal) is arranged between the parties. Like
the sale of land or movables this is not an executory contract involving
an obligation to perform against the payment of money, but the
'delivery' of the repudiation for money. Under the Moslemterm kuluk
it was, moreover, also the appropriate Islamic legal remedy by which
an important noble who had four wives already but whose concubine
[587] (selir) expected a child, was enabled temporarily to divorce one
of them in order to marry the concubine. The procedure gave him the
advantage of irrevocability (despite the observance of a term of iddah)
together with the possibility of later remarrying the repudiated wife.
But how is Christianity affecting the traditional principle of jural
equality in Java? Had Islam not come between ancient usage and
Christianity, one could imagine the three forms of dissolution of
marriage persisting still, though under supervision and restraining
influence by the authorities of Christian village or mission parish.
There would have been no reason not to keep the dissolution by
common consent which also Islam has respected, albeit under super-
vision. On the other hand, since Islam had stamped out the woman's
right to dissolve her marriage of her own free will while preserving
the man's right to do so in the purely Moslem form of repudiation,
it is understandable that the two unilateral forms of dissolution did
not readily revive among Christian Javanese, but came under the
supervision of equally vigilant authorities. That is to say, all forms of
dissolution, whether by husband, or by wife, or by mutual wish, may
now take place only with the agreement of the authority designated
for this purpose by a new adat law, who must judge whether the
reasons of the parties are sufficiently strong to override the principle
of the sanctity of marriage. There can be no objection to speaking of
the decision of the Christian authorities as 'divorce', and to comparing
it with a judicial dissolution, but there is no ground for saying that
it is a civil law verdict within the meaning of section 78 of the
VII Centrat and East Java, with Madura 179

Regeringsreglement, and hence lawful only if pronounced by our

landraad court (- -).
[588] Although there are considerable local differences in grounds
for divorce [among Christians], they do not seem ever to be based on
living indigenous law, but everywhere to be an imitation of westem
statutory grounds. lt should be remernbered that the traditional
breakup of marriage, whereby usually one party leaves the village,
is far from uncommon among Christian Javanese, and that the refusal
to sanction dissolution often results in illicit cohabitation somewhere
eise. Hekmeijer quite rightly recommended in 1898 that 'one should
not lay down rules, but judge each case on its merits ... while con-
sidering the possible effect of refusal' (IG,1898,11: 1325)
Traditionally (as happens elsewhere) the guilty party probably
suffered materialloss, either through having to pay the innocent party,
or through losing the right to claim [a share of the estate]. There is no
trace of this left among Moslems, and the very fact that refund of the
tukon is not even mentioned supports the view that this traditional
payment was not bridewealth. Among Christians - and consistent
with good Indonesian tradition - a guilty party is obliged to con-
tribute to the church fund.
Apostacy from Islam (conversion to Christianity) terminates a
Moslem marriage; a Christian husband's conversion to Islam implies
[589] that Islam does not recognize his preceding marriage; conversion
from the Catholic to the Protestant faith, or vice versa, does not affect
a Christian marriage.
(--)
Looking back at this Javanese-Madurese marriage law we can see that
its traditional principles are obscured not by rudiments of the old
indigenous law, but by Moslem forms of dissolution and by the
function of the marriage wali.
(--)

Land Law
[604] lt should be stressed that, though the traditional land law in
this law area had much to contend with from the Mataramese imperial
govemment, it was fortunately not marred by it. Where provincial
govemors were stationed, they received pieces of land in apanage, to
the detriment of the rights of villages and individuals. The sovereign
also created exempted villages, reserved royal domains, and committed
other abuses of power, but for the rest Javanese land law generally
180 Van Vollenhoven on Indonesian Adat Law

remained as it had been before. Even in old-Kedu, which belonged

to the state's heartland (nagaragung), the old land law can still be
identified. In Bagelen, on the other hand, it was almost as grievously
impaired as in the present-day principalities themselves.
The survival of the ancient indigenous situation is at once evinced
by the existence of the right of avail in the Javanese and Madurese
villages. Pound almost everywhere in the regions outside Java - only
among the Gayo and Toraja and in Gorontalo is it not fuily developed,
while in Aceh and in respect of the sawah of Bali and Lombok it has
almost vanished - this right is here always vested in the village. In
Centrat Java moreover there sometimes exists (existed) aseparate right
of avail of the parent village and of its hamlets, or of a few of the latter
together- a situation comparable tothat in Karoland. In this law area
the right of avail of the village embraces both virgin territory (jungle)
and arable land reverted to wilderness (ara-ara), as weil as arable and
residentialland actuaily in use. It apparently also extends over water.
The boundaries of each area of avail are precisely known to the
inhabitants; except in areas such as old-Probolinggo, the south of old-
Pasuruan and Besuki, which remained sparsely populated for a long
time and where village domains as a result were only vaguely delimited.
Themanifestations of the right of avail are the usual ones: freedom of
[605] exploitation by the members of the village; prohibitions for
outsiders except with the permission of the village and in return for a
recognition payment; involvement of the village in matters affecting
arable land; short- or long"term control of certain parts of the village
territory; and liability of the village for certain wrongs. There were,
however, some graded differences. Even in 1878 there were still
villages which prohibited any land reclamation by members of other
villages - a situation reminiscent of the Ambonese Islands. More
frequent and resilient are or were the prohibitions for outsiders to cut
wood and gather wild produce. In a second !arge category of villages,
outsiders were not only ailowed to cut or coilect wild produce, and to
bunt, but to acquire temporary tenancies or very short-term adat-owner-
ship (e.g. three years); though not to buy land. Meanwhile the third
category of villages, where outsiders could freely reclaim or even buy
land (as on Bawean as early as 1872), has steadily grown !arger. But
even here the village retains the right to dispose of abandoned arable
land or of residential plots falling free because of people dying or
moving away. The recognition payment, which is reported tobe found
in the whole of Centrat Java as weil as Surabaya (but unknown in the
VII Centrat and East Java, with Madura 181

Madurese law district?) is to this day called pamesi or mesi; though

many other versions have been recorded (-). Paid in kind, sometimes
in produce plus money (penatas oyod), it is occasionally given to the
(jointly sharing) core-villagers, but usually to the head of the village or
hamlet. It never seems to be paid into the recently instituted village
treasuries (where these exist), probably because the Government does
not recognize recognition payments as legal obligations. Such payments
can thus be required for permission to reclaim land, feil timber, collect
forest produce (e.g. bamboo, rattan, aren juice), hunt, fish, graze cattle
or turn out ducks, lay on water supplies, or make any other profitable
use of the land. Where a hamlet has its own right of avail, a fellow-
villager of another hamlet counts as an outsider; and in at least one
[606] place, Pasuruan, one finds the phenomenon of several neigh-
bouring villages (within the domain of the same regional head?)
counting as one for the purpose of the right of avail. Even in Bagelen,
numerous manifestations of the right survive, which can only be of
ancient indigenous, and not Mataramese, origin. A Javanese or Madu-
rese name for this right does not exist, its various expressions
apparently never having been conceptualized in a single term. It will
be shown shortly how the Govemment proceeded with regard to the
right of avail, but first we must have a clear idea of its local dimensions
in Java.
There are two kinds of situation. In some regions, like densely
populated Kedu, the village areas of avail are contiguous: here, there-
fore, the Minangkabau rule applies that every patch of soil has its
right-holder. Those wanting to reclaim land outside their own village
area (e.g. Christians in search of their own settlement) will always need
the permission of some other village authority; and if the right of avail
is still vigorously asserted they would never acquire more than a
temporary tenancy or short-term adat-ownership. In other regions, large
tracts of no man's land lie (lay) between the village domains( perhaps
the name rayahan, 'poaching ground', also refers to this sort of area).
Whoever wants to reclaim land or collect wild products here is
perfectly free to do so under adat law; he can at once acquire adat-
ownership of it, and the resulting settlement may in turn develop into
the centre of a new domain over which it exercises its own right of
avail. How exactly this process takes place, does not seem to have been
investigated. Incidentally, it should be noted that stretches of forest
and long abandoned arable land are often individually named in
Java.
182 Van Vollenhoven on Indonesian Adat Law

How is this right of avail manifested in respect of arable land and

residential plots? First, in some villages, in the interdiction already
mentioned of alienation to non-members; and everywhere in the village
authority's control of lawful alienations; further, in the return of
abandoned land to the unfettered right of avail of the village, to be
administered as land 'in intermediate state' (gantungan, etc.) until it
[607] can be allotted in adat-ownership again. (The akuan land in
Pekalongan seems to fit into this category, with the difference that it
is given out only under temporary tenancy.) Allthese expressions of the
right of avail appear to us to be tolerable.
A more serious incursion on the proprietary rights of individuals lies
in the right of the village to excise pieces from existing fields and
residential plots, or to re-divide them, when the need for more land
arises - the same right therefore as is exercised by the Minahasan
village and the traditional Balinese village. This right, described as
dadal in Kedu, usually remains suspended in the case of newly re-
claimed fields, whose owners therefore have no need to fear that it will
be exercised in the first three years or so. lts most onerous application
would of course be if, within bis lifetime, the owner of a field or
residential plot is repeatedly exposed to such reapportionment. Infor-
mation on the traditional application of this right (not in isolated cases
but as a general restriction upon adat-ownership) is especially scarce
because more than a hundred years of Government practice has
obscured the original indigenous practice.
Whether such interference can be arbitrarily limited to some land-
owners (e.g. recipients of abandoned land), or whether it should as far
as possible affect all landowners equally, is not clear. From several
regions, however, there is explicit evidence that anyone who has
reclaimed a piece of land will not see it threatened during his lifetime.
In addition to temporary desa control of reverted fields and resi-
dential plots as well as akuan land, there is permanent desa control of
those parts of the village domain which - in our terminology - are
used for public purposes. Recognized as such are the village pastures
or pangonan, the village burial ground where groups of close relatives
can have their family burial places, and further the village roads and
paths, the little village commons and so on. Where the right of avail
is fading these aspects of it nevertheless remain, and even gain in
[608] significance. As in the Minahasa and on Bali, the right of the
village over these pieces of land (a right of avail) differs from its right
in lands reclaimed or purchased by it (i.e. adat-ownership).
VII Centrat and East Java, with Madura 183

In view of the far-reaching implications of the right of avail it is

obviously of great importance that it be applied fairly and disinter-
estedly. The fairness of its implementation leaves much to be desired
if it remains in the hands of the village authorities. Time and again
one reads of arable land reverting to the village, either appropriated
by the village headman, or declared to be an official field (or is this
lawful ?) ; or regarded as village land and consequently allotted to share-
cropping or rent paying tenants, or leased for the common benefit of
the core-villagers or owners of village land. lt is therefore encouraging
to read that in many areas of Central and East Java the implementation
of the right of avail was entrusted to the village elders mentioned
above, the retired core-villagers whose disinterestedness was certainly
more credible than that of the village authorities themselves. Informa-
tion about the practice of these elders would be illuminating, but is
unfortunately lacking. lt should be noted that village authorities and
elders are both acting in the name of the collectivity of core-villagers,
who in the traditional villages constitute the governing power, and are
in effect the desa itself (-).
The foregoing observations demoostrate that here, too, the right of
avail does not remain static but changes with time, gradually becoming
weaker and losing its prominence as the adat-ownership subordinate
to it gains in strength and freedom. If the process is allowed to go on
undisturbed, it may in some regions be completed quite rapidly, as it
did for instance in Bagelen araund 1900. What then remains of the
old right of avail is only the reversion of abandoned land to desa
control, and the participation of the village authority in transactions
involving arable land; but recognition payments, the prohibition of
land ownership by strangers and most of the other restrictions fall
away. It goes without saying that, from our own economic point of
view, this process of liberating individual rights deserves full approval,
provided this does not take place until the village community in-
stinctively feels that it is ready for such a change. (-)

[609] What then did the Government do with this widespread and
deep-rooted right of avail? The Regeringsreglement of 1854 (-) recog-
nized the right of avail over virgin land, and, besides section 75(3)
even safeguarded it in section 62(3). Sections 1 and 4 of Staatsblad
64/1856 and the Bijbladen 377 and 2001 were in accord with this.
Staatsblad 78 of 1874, on the other hand, and the reclamation ordi-
nances of 1874 and 1896, unlawfully struck out the most important
184 Van Vollenhoven on Indonesian Adat Law

part of the right of avail, although the reasonable purpose of these

measures - to open up the land resources of Java and to prevent the
exhaustion of the soil- could have been achieved equally well without
attacking the right of avail. Hence the conflict which after forty years
still continues between these ordinances on the one side and popular
usage on the other, the latter being referred to as 'arrogation of rights'
and 'clandestine clearing of land' in our administrative circles.
The same right of avail, however, is not only recognized in Staats-
blad 64 of 1856, but also tolerated when arable or residential land
becomes ownerless and reverts to the unfettered control of the village.
Hence, in a borderline case in 1915, about a [privately rehabilitated]
piece of land which had fallen waste between the village fields as the
result of a river flood and change of river bed, the court was in doubt
as to whether it was dealing with the still operative part or the
abolished part of the right of avail (AB 14:69ff.). The confusion is
[610] compounded because the Govemment, while ignoring the right
of avail over virgin land, recognizes it in respect of cultivated fields
and arable land, though on the illogical basis that the desa is not the
bearer of the right of avail but the owner of the land; and that the
individual right-holders are not adat-owners (subject to the village right
of avail) but mere users of desa land. The most bitter fruit of this
theory has been the conception that the village authority is fully
empowered - in connexion with the land-rent system, compulsory
cultivation and labour services, i.e. in our interests - periodically to
remove land from the owners and to apportion it to other individuals
for equally short periods: an excessive use of the dadal right [of expro-
priation] which led to shameless abuse. This whole system as regards
arable land is then called 'communal ownership' of the fields. The
fields themselves are called sawah desa, sawah bumi, sawah kongsen,
sawah raja, etc. As against this alleged village property - wholly
different from genuine village ownership of land - only the other
e~treme is posed, usually equally foreign to adat law: a strictly indivi-
dual ownership unaffected by any superior right of avail.
(--)
[611] After the village right of avail comes the indigenous right of
adat-ownership, which embraces both what the Govemment calls
'individual property', and the so-called 'users' shares in communalland'
which are in fact private property subject to a vigorous right of avail.
Its former manifestation is found everywhere in Madura and Bawean
and in a large part of Java's eastem comer; the latter occurs else-
VII Centrat and East Java, with Madura 185

where (-). An Indonesian word for adat-ownership (associated with

duwe or gadah, to possess) is lacking; the Moslemterm milik is usually
employed. Should an Indonesian hirnself wish to indicate the basis of
his proprietary right, he would distinguish land acquired by his own
occupation from land obtained by transfer (purchase, etc.) or other
means of acquisition Iike inheritance [thereby employing a rich variety
of descriptive terms].
(-)
The content of the right of adat-ownership of land (i.e. arable fields,
fishponds on sawah land, shallow pools (rawa), saltings in Madura,
etc.) is the capacity to act as Iord and master of such land, subject to a
[612] threefold condition: (1) observance of the right of avail of the
village insofar as adat-ownership is still restricted by it; (2) observance
of the rightful interests of other landowners - for this reason the
hereditary servitudes which were indispensable in the individualistic
Roman law are superfluous and unknown in adat law; (3) observance
of the explicit adat law regulations for landowners (e.g. the duty to
allow another's cattle on one's land as long as it is fallow and is not
enclosed). In regions such as Madura and Bawean, where the right of
avail has practically vanished, or in respeot of beach-ponds and the
like, where it has become dormant, such emancipated adat-ownership
might be equated with (oriental) absolute ownership, were it not for
the danger of thereby making too sharp a distinction between the
emancipated and the still communally encumbered version of adat-
ownership. This would, moreover, conflict with the govemment usage
in this law area of vesting the nominal 'ownership' of such land in the
State. (-) Besides indigenous individuals, also indigenous corporations
can have adat-ownership of land.
(--)
[613] The right to alienate land (by sale, harter or gift) is rarely if ever
excluded from the powers of an adat-landowner; but in the more
traditional villages he may alienate only to fellow-members of the
desa. (-) He may further Iet his land on a share-cropping basis, or
for a rental, or in retum of a loan, etc., but always within limitations
whioh the right of avail imposes on such transactions. Adat-ownership
does not as a matter of course include the right to subdivide and
apportion jointly held land. A sawah inherited by four children may
therefore have to be allocated to one of them, or they might take tums
in using it. Adat law often recognizes a minimum area which may not
be diminished by subdivision. On the other hand again, division is
186 Van Vollenhoven on Indonesian Adat Law

permitted when some people jointly clear a piece of woodland with the
intention of dividing it up. (-)
Among the obligations of the adat-owner is the one already mentioned
of allowing other people's cattle on it outside the crop season (as in
Aceh and elsewhere), and of allowing free passage to anyone who
needs it (Eindresume 111: 188). By far the most important obligation is,
of course, that of tolerating, where necessary, the excision of a piece of
arable land by the desa or even the reallocation of land as described
above. It still seems to be an open question whether the obligations of
those to whom the village authority has granted a piece of gantungan
(reverted) land are stricter than those of the ordinary adat-owners. As
against some sources which report not only that the village retains
some supervision, but even that such recipients have but temporary
tenancies rather than adat-ownership, there are many others which
contradict this. But one may, perhaps, assume that a village authority is
[614] more likely to take from the occupier of a piece of gantungan
land than from the owner of self-acquired land. Other obligations of
the adat-owner worth mentioning - all presumably deriving from the
right of avail - are: to report to the village headman when the
standing rice is ready for harvesting - the headman then gets a few
pence per bau [appr. 13/4 acres], and the wife of the headman is
allowed to cut the first padi; in traditional villages, not to change the
use of a field without the approval of the village authority; and at
times such as the harvesting of late crops, the annual picking of fruit
trees, the felling of trees for firewood, to give the headman a share
(pegubuk, gobangan, pesusur), such a share clearly revealing the con-
nexion with the right of avail, for it is larger in the case of a stranger
than of a village member. (-)
The usual way of creating adat-ownership of land is by the lawful
clearing of forest or other virgin land; this corresponds to the acquisi-
tion of adat-ownership of running watet by constructing an irrigation
system. What rights, if any, arise when such activities contravene adat
law, will have to be decided by the court on the merits of each case.
Adat law never has fixed rules for such hypothetical situations. Joint
reclamation of land by a nurober of villagers Ieads to common owner-
ship of it; reclamation at the instance of the village Ieads to genuine
village ownership. Reclamation on the orders of a prince or a village
authority sometimes had an altruistic aim, in that the developers them-
selves gained adat-ownership of the fields thus won; usually, however,
they became the prince's or headman's sawah, attached to his office or
VII Central and East Java, with Madura 187

person. If the prince allocated them to a headman or favourite, they

were called sawah ganjaran, or, in an unusual sense, sawa pusaka, in
which case the initial occupiers were usually granted a tenancy at will
(see below).
A second way of creating (actually, recreating or reviving) adat-
ownership was through the allocation by the village authority of a piece
of land which, having become ownerless, had reverted to the unfettered
right of avail of the village (sawah gantungan etc.), or which had been
requisitioned (dadal).
[615] The transfer of adat-ownership of land and fishponds can be
done by sale, harter or gift, transactions which are actually forms of
transferring property, and not agreements creating the obligation to
transfer property. Should the latter be intended, the mere expression of
consensus is not enough. Just as betrothal in Indonesian adat law only
becomes legally binding upon the giving of a betrothal gift or pledge,
so these property transaction only become legally binding when con-
firmed by a tangible token, called panjher or kendmg in Madura, or
panjer in East and Central Java. This 'material binder' or bond sum
(for it is usually a coin or sum of money) is wrongly regarded and
translated as an 'advance payment', for it is not deducted later from the
price. In more recent times, an inscribed piece of paper often served
the purpose, as it did in medieval French law (Esmein, 1883); and
government judges who erroneously expected to find in it the proof of
an agreement had no good reason to be surprised by the unilateral and
laconic form of this written token (tanda). Yet another misunder-
standing comes from our habitual translation of the Madurese jhuwal
and belli, and the Javanese dol (High-Javanese: sade) and tuku (High-
Javanese: tumbas) as 'to sell' and 'to buy', whereas they can in fact also
apply to other kinds of transfer of physical control, including temporary
transfers for a rental or in return for a loan (-). The specific meaning
of these terms becomes clear from the verbal context in which they are
used (e.g. people jual arable land for a year in return for a certain
payment).
lt is understandable that in areas in which the right of avail is still
vigorous the village authority must co-operate when land or fish-
ponds aretransferred by sale or harter (also with gifts?). Although this
is required for the validity of the transaction it is misrepresented by
our idea that the village authorities merely act as witnesses. Sometimes
their involvement can be inferred from the recurrent reports that they
receive some money whenever land is alienated. lt is striking, however,
188 Van Vollenhoven on lndonesian Adat Law

that their involvement continues even when the cause of it (i.e. the
right of avail) has disappeared. Though severed from its root cause,
but found to be a practical means of promoting legal certainty, the
assistance was thus retained as an element of legal validity, and not
[616] - as Europeans tend tothink and as terms like pesaksen seem
to imply - merely to have witnesses, or for ceremonial purposes. lts
obligatory nature often seems to have been reduced to the mere duty
of notifying the village headman. The Goverment's requirement that
the headman must report all important changes in land ownership to
the administration is consonant with these trends. One sometimes reads
of certificates of transfer being drawn up in the village. At some places
the village authorities, officials and neighbours present at the payment
of the purchase price, would receive some money from the seller and
purchaser jointly (-). The data sometimes differentiate between wet
fields and residential plots. In transfers drawn up by a notary the
village authorities are often the witnesses.
There are separate rules for the division of estates inter vivos
(paweweh), but it is not clear how an outsider would know the
difference between them and ordinary gifts.
The permission to lay a water course over cultivated Iands seems to
include transferring the proposed water bed. In several areas this used
to be done only against payment (purchase or damages?), with the
peculiarity that double the value of the land involved was paid. Some-
times permission would be given only if the constructor agreed to take
the entire plot of land (-).
Just as occupation of virgin land is the normal way of acquiring
adat-ownership, so the natural way for ownership to lapse is for the
state of occupancy to end. Sometimes the right is extinguished by
abandonment and neglect; but more often when nothing remains to be
seen of previous cultivation - e.g. when no traces are left to the little
sawah dikes; or when no one remembers any Ionger that it was once
cultivated or owned, or when this situation has existed for some twenty
years or so (when the right to it is said to have expired, kedaluwarsa).
Probably these popular explanations reveal something of the growth of
adat law, but it is also one of the things by which critics like to
[617] demoostrate how hopelessly inconsistent adat law in Java is.
A second way in which adat-ownership is extinguished is when the
owner moves from the village. A third is appropriation by the village
by virtue of its dadal power, whereby a piece of land reverts to the
unfettered right of avail to be reissued subsequently to a new adat-
VII Central and East Java, with Madura 189

owner. A fourth way of extinction occurs in the areas where strangers

(non-desa members) can acquire a short-term ownership of wet fields
(e.g. for three harvests) instead of a mere temporary tenancy; the land
automatically reverts to the village when the term ends.
One reads of numerous regions where even the land of the villagers
themselves is taken back for redistribution two to five years after the
initial cultivation. If this is not ancient adat law but the arbitrary
action of the princes or our govemment, then it is probably by analogy
with the similar rule mentioned above for outsiders. One also finds
repeated mention in early reports of adat-ownership being extinguished
because of default of compulsory services or land-rent, the faithful
rendering of which would thus constitute a necessary attribute of
indigenous landownership. But since this is also a feature of owner-
ship of wet fields in Lombok, and appears to have derived from
tenancies at will, it would in that case not have been of ancient origin
but the result of royal despotism. Hence, it immediately ceases to
operate in areas where royal influences, or compulsory cultivation, or
other pressures, disappear. The antiquity of this rule is all the more
suspect because it is rarely if ever cited in cases of default of village
services, where one would expect it to have been applied first of all.
Loss of ownership through passage of time alone (negative prescrip-
tion) is here as unknown as in the rest of Indonesia. The Javanese
word kedaluwarsa is used in a different sense (mentioned above), in
which the chief consideration is not passage of time but absolute
uncertainty as regards past ownership.
(--)
[618] Accretion of land by silting or alluvial deposit - no rare
occurrence in Iands bounded by the sea and subject to river-floods -
may affect both the right of avail and adat-ownership. The new land
falls under the right of avail of the village within whose domain the
accretion takes place, and can usually (invariably in the case of beach-
ponds) be transformed into private ownership only by actual cultiva-
tion. But should small-scale accretions take place to a person's field,
sawah pond or residential plot, the new ground falls immediately
under his adat-ownership.
(--)
[ 621] Residential plots (pekarangan, sometimes wengkang or pameng-
kang; kampung, if the plot is enclosed; on Bawean, pamangkang) in
this law area appear to be in adat-ownership, which in Madura is as
freely obtained as ownership oftegal [dry] land, but in Java is subject
190 Van Vollenhoven on Indonesian Adat Law

to various limitations. For though in most regions of Java residential

plots can be alienated to fellow-villagers or prospective members, or
- though rarely - be rented or held in retum for a loan, no one was
allowed to own more than one plot (-) and any division required the
co-operation of the village authority. Although, as in the Minahasa,
the traditional redistribution (dadal) power of the village is more
readily aimed at residential premises than at arable land, the Govem-
ment's periodic reallocations of village territory fortunately did not
involve residential plots - the explanation offered being that 'com-
munal ownership' of residential plots is exceptional. This exception
can be discovered first of all in Banyuwangi, where the (undivided)
residential land remains under the control of the village authority,
thus leaving the occupants with only temporary tenancies; and further
in those regions where a 'share in the communalland' automatically
involves the possession of residential premises. Adat-ownership of
residential plots originates either by their preparation on virgin or
cultivated land, or by the allotment of existing plots which had
reverted to the temporary control of the village (suwung, lowong, etc.).
In most of this law area the origin of a residential plot does not affect
the right acquired in it, unless the former owner retums within a year
or so; in respect of arable fields, however, the nature of the right
obtained is still open to question (p. 186). For the alienation of plots
the co-operation of the village authority and the presence of witnesses
are required. The right ceases for instance if the incumbent moves to
another village; and if two plots fall into the same hands it ceases in
respect of one of them. The village authorities can insist that owners
keep their premises in good order.
In this law area, too, the ownership of crops and trees (see under
Law of Chattels) is independent of the ownership of the land.
Tenancies at will - similar to those found on Bali, Lombok, and in
the central Javanese principalities (and formerly in the Madurese
[ 622] princedoms in respect of sawah lands which are now held in
ordinary adat-ownership) - are rare in this law area, and mainly
apply to sawah ganjaran (p. 187). In course of time they change into
normal adat-ownership, but should be called tenancy at will as Iong
as there is a superior who can arbitrarily terminate it.
(--)
Despite the reclamation ordinances of 1874 and 1896, temporary
tenancies (older than adat-ownership) of land sometimes referred to
as gaduhan, still exist where there is extensive shifting cultivation of
VII Centrat and East Java, with Madura 191

fields (-). They may be found within a village territory or in former

no man's land. The right to the swampy sites of nipah palms is equally
unstable, and is usually also described as a temporary tenancy. Another
[623] kind of temporary tenancy is exercised by non-members, par-
ticularly in Central Java, when they reclaim virgin land, or build fish-
ponds on the village territory. In the course of time adat law adjusts
itself, especially in East Java, by allowing them to acquire ordinary
adat-ownership of permanent dry fields (tegal), but of wet fields
(sawah) for no more than three years or so; at a later stage they can
acquire ownership by reclamation or by conveyance or other transfer.
A third variety of temporary tenancy comparable to that in respect of
padang land and tanoh raja in Aceh is the right to akuan Iands
(p. 182), which again corresponds closely to the tenancy of residential
plots in Banyuwangi. None of these temporary tenancies can be
alienated or inherited. All expire when the cultivation of the land is
completed or discontinued. Fields abandoned under shifting cultivation
are called talun, or sometimes pengalang-alangan.
(--)
[624] In addition to the apanages of the imperial officials of Mataram,
which did not give them rights in the land itself, there were, and still
are, official fields for the village headman, his assistants, the custo-
dians of the graves, and such modern dignitaries as schoolmasters.
These fields are called sawah (or tegal) bengkok; or sometimes
erroneously, lungguh, apanage. The beneficiary is entitled to exploit
them for his own and his family's benefit, but may not alienate them
or let them be tenanted in retum for a loan, nor, probably, for a rental
or for share-cropping (although the rents ordinance permits the letting
of such land, even to Europeans). The fields were not heritable (unlike
the crops standing in them) but remained attached to the office. The
cultivation of official fields, at least those of a village headman, was
mostly clone as a form of village service or mutual assistance in return
for food and refreshments. They were wholly or partially free from
royal pajeg levies.
(--)
[625] Mosques and the like cannot be endowed with wakap Iands in
areas where the right of avail still curtails the freedom of individual
owners, and such lands are therefore virtually unknown in Central
Java. They may weil occur in the Madura law district.
In adat law the right to occupy virgin land was open to everyone
for the no man's land between villages, and to villagers for the domain
 192 Van Vollenhoven on Indonesian Adat Law

of their own village, but to non-villagers only with special leave and a
recognition payment. In the first two cases continuing cultivation gave
adat-ownership, but in the third case often only the rights of a
temporary tenant.
(--)
[626] The rights to cut wood, to collect forest products and to graze
livestock are subject to the same distinction between no man's land
and village domain.
(--)
In this law area, too, preferential rights to land are of two kinds. First,
as the option of a prospective occupier of virgin land, provided he has
the necessary permission and - sometimes - has marked out the
land. This right appears not to be transferable; it expires upon death,
or (usually) after a fixed period of inactivity, or when, after prepara-
tions have been completed, temporary tenancy or adat-ownership takes
its place. (-). Secondly, in the westem half of the law area, the
builder of a water course has a preferential right to the virgin land
which can be irrigated from his water supply, for such land cannot
[627] without his permission be occupied by another (who would, by
virtue of his occupancy, obtain an independent right to draw water
from this source - see below), whereas he hirnself needs no per-
mission. In the eastem half of the law area, however, the existence of
this preferential right to adjacent land (dedelan) is being denied,
although there, too, any person who clears land within range of a
water supply gains the right to draw from it to the disadvantage of its
owner. There appears tobe no evidence for a third type of preferential
right, that of the previous owner in relation to his former fields (are
these also called talun?), which would have had the effect that they
might not be re-occupied without first giving him the opportunity
to do so.
A right of first option or pre-emptory purchase by fellow-villagers is
reported for the case where a man wishes to sell his residential plot to
a newcomer to the village.
Giving tenancy of arable land in retum for a loan of money is very
frequent. It is called aghadhi in Madura, anggade in Java (High-Jav.
anggantos), asanda on Bawean. This kind of transfer to the physical
control of another person falls within the meaning of the general term
dol, and has engendered the fallacy that it must therefore be a 'sale'
(with right to buy back). The arrangement can last decades without the
slightest danger to the ownership itself of the land, but because there is
VII Central and East Java, with Madura 193

no periodic acknowledgement of ownership here by means of tangible

token like the Minangkabau basket of rice, judicial proof of it is
difficult, even though the participation of the village authority is
required for the validity of the transaction. To require registration on
pain of voiding the transaction would only make a pretence of solving
this difficulty. The transferor is mostly the adat-owner of the land, but
also the creditor-tenant appears to be entitled to sub-let it; moreover,
he actually can, with the agreement of the owner, transfer his full
tenant-right and the land concemed to a third party, who pays him off
and is thenceforth the owner's creditor. In Bawean, if the tenant wants
to make over the land in this way (masanda ganti), it often happens
that the initial transferor (the adat-owner) substantiates his right in the
land by erecting a re<-t-hut (pondok) or something similar on it. Wet
rice fields, fishponds, and residential plots can all be the subject of
tenancies in retum for loan; but these are possibly only for landed
property which is comparatively free from the right of avail - hence
not in respect of what the Govemment calls 'changing shares in com-
munal ownership'. Since the value of the land thus handed over is
generally much higher than the capital sum the payment of which
[628] redeems the land (nebus, from tebus; in Madurese nebbhus),
and since the produce of the land constitutes an ample retum on the
money advanced, the creditor has nothing to gain from a speedy
redemption. Quite frequently the transaction is linked with the handing
over of the field on a share-cropping basis (or of the residential plot
for rental) by the creditor to the owner, who on the face of it simply
retains his field or homestead, although his legal position is totally
different and more complicated, and although the tenancy-loan agree-
ment itself may last much Ionger than the share-cropping agreement
(usually concluded for periods of one harvest or season at a time) or
agreement to rent.
Normally, no time Iimit is stipulated for tenancies in return for loan,
but sometimes the agreement specifies a term for redeeming the land,
after the lapse of which the creditor may appropriate it. 4 The view that
these two forms are distinguished by different legal terminology
(Madurese, Javanese, Malay) seems to be mistaken. The kind of trans-
action in which the tenant-creditor has the right ultimately to auction
the property does not exist. The property can be redeemed at any time,
provided the tenant has been able to harvest the land at least once. The
crop which may have been standing on the field when the transaction
was concluded remains the property of the loan debtor, and the crop
194 Van Vollenhoven on Indonesian Adat Law

standing at the tennination of the tenancy still belongs to the tenant.

Land so tenanted can be inherited and, with it, the closely associated
right to redeem it.
The tenant-right is established by the act of putting the land at the
disposal of the loan creditor. Any promise regarding a proposed
tenancy is only binding if substantiated by a tangible token, either
panjer or a written document. Our courts have often misunderstood
the tenns dol and jual in documents relating to these transactions,
taking them to mean contraots of sale. Often, in fact, on the urging of
the tenant-creditor the document wrongly pretends to be a genuine
sale, though the sham is duly revealed by the excessively low 'purchase'
price. Once established, the tenancy of the land has an existence quite
independent of the loan debt which usually mol!ivates the transaction,
until the moment the land is redeemed, or until the tenancy agreement
is transfonned into a genuine sale by means of an additional payment
to the debtor-owner.
(--)
[629] Share-cropping contracts, concluded by putting the land at the
disposal of the cultivator, are very common. The basis on which the
harvest is divided - one-half, a third, a quarter, two-thirds, three-
quarters, etc. to the cultivator- depends on the nature of the soil and
the respeotive claims of share-cropper and land-holder. Half-shares is
called maro or memaro (from paro, High-Jav.: malih, from palih; some-
times mertandukake; Madurese maron); a third-share mratelu (High-
Jav.: mratiga); a quarter mrapat; a fifth share maralima. With half-
sharing, each party generally bears half of all the costs, while the share-
cropper is responsible for providing the ploughing team. Variations
on this general principle often have their own Indonesian tenns. The
land-holder can either be the adat-owner of the land or a tenant in
retum for loan (also the beneficiary of an official field?). lt is chiefly
land-owners without draught-animals, or caretakers of estates shortly
to be distributed, or major land-owners (still rare in this area), as weil
as (fonnerly) apanage holders, who let out land on a share-cropping
basis. The cultivators (share-croppers) include young bachelors, and
sometimes students at a religious school who have to see to their own
subsistence. Usually it is sawah land which is under share-cropping
contract, but sometimes dry fields, orchards (cocos, etc.), or, on
Madura, saltings. There may also be share-cropping in the exploitation
of a fishpond. The agreements usually cover one harvest (main crop
only) or one agricultural season (both main and late crops, often
VII Central and East Java, with Madura 195

divided differently). Apportionment seems to take place after the

harvest, but it is not reported who has first choice, or whether the
land-holder gets his share delivered at home or has to see to its removal
himself.
(--)
[630] Rentingof land (sewa, nyewakake; sometimes ngadol, enjhuwal,
nglanjak) between Indonesians does occur, though less often than
share-cropping. The payment made to the lessor is here a fixed amount
(rice or money, or some of both according to the wish of the lessee),
and not a fixed proportion of the harvest. If part of the payment is in
money, it is usually made at the commencement of the contract.
(--)
The question of how the conflicting interests of buyer and share-
cropper (or lessee) must be reconciled by the court when a land-owner
sells his land while it is being rented or held under a share-cropping
agreement poses no real problern in adat law. Neither the rule that
sale forecloses tenancy nor the opposite rule is conceivable in adat law.
In each case the judges will investigate whose interests ought to weigh
möre heavily, and the disappointed party will be compensated by the
seller if in the court's opinion such compensation is due.
A village's right of avail over the land within its domain is often
combined with a similar right over water, with the same implications
for villagers and outsiders (-). From the villages on the north coast
[631] even a right of avail over the shallow coastal waters is reported.
The boundary is (was) then sometimes marked off with lines (-). lt
is a natural expression of this village right of avail that the village
headman should get up to one-fifth (sometimes called pamesi or
pameksi) of the fish caught within its domain. This right of avail,
however, seems to weaken more quickly than that exercised over land.
In the first place, in many village areas all fishing is said to be free,
and in the second, these village rights are often held in common with
all the neighbouring villages falling under the same regional head (in
the past) or under the same government-appointed regent.
Rivers and brooks in no man's land or in areas where the village
right of avail over water has disappeared, do not seem to be subject to
any rights in adat law. In the Javanese era [i.e. until the end of the
Java War, 1825-30] villages given in apanage paid an annual levy,
tumbas toya, to the apanage-holder for the privilege to use water.
As regards adat-ownership of water, the first right to be mentioned
is that which a man has in spring water surfacing on his land,
196 Van Vollenhoven on Indonesian Adat Law

immediately to be followed by the right to water standing in or flowing

through his watercourse - a right which derives from his having
constructed the water system itself. No other person may heuefit from
this water without the consent of the owner, and when it is used
extensively the latter will demand to be compensated in kind (e.g. a
fixed proportion of the harvest) or in money. However, anyone pre-
paring a new arable field within the range of the water course
- something which, as stated before, usually requires the consent of
the water owner in view of his preferential right to the land - obtains
an independent right to run off water if he shares the cost of
maintaining the system (an infringement of the rights of the owner of
waterworks which is unknown in Bali). On the other hand, anyone
who helps to extend the system becomes co-owner of it and of the
water led through it. The right in such a water system is inheritable,
and probably alienable.
A second type of adat-ownership of water is that of salt water ponds
(tambak) on the beaches at Semarang, Japara, Rembang, Surabaya,
Pasuruan and Probolinggo. This right derives from the construction
of the pond (subject to the village right of avail); it is heritable,
[632] presumably transferable, and it may be Iet. As the cupidity of
our agrarian system and cultuurstelsel did not extend to this type of
pond, they were practically never misconstrued as 'communal property'.
It is not clear whether, besides these two rights, there also exists adat-
ownership of waduk or catchments.
A temporary water right exists in respect of flood or rainwater while
it stands on a person's sawah. It is in the communal nature of village
society that for wet ricefields dependent on rain (sawah tadahan, the
usual kind in Aceh), this natural water supply should do as much
good and as little darnage as possible to neighbouring fields; but there
seems to be no question yet of a neigbour's irrigation right in this
connexion.
The right to irrigation and to reticulated water accrues to those who,
as adat-owners or tenants, occupy sawah-land along a brook or artificial
water course and who help to maintain this water system, whereby the
water, having served a higher Ievel sawah, must be allowed to flow
down into the next sawah. These are not individualistic rights to the
primary and secondary use of water, but rights to be exercised only
for the common good; hence there is no need here for any 'servitudes'
(cf. p. 185). That the right of irrigation and water reticulation would
more widely benefit rice crops on sawah than any other crop seems to
VII Central and East Java, with Madura 197

conform to Indonesian thinking; it has been emphatically asserted

though insufficiently documented so far. Transferring this right with-
out the sawah itself changing hands (by sale or tenancy) is probably
foreign to indigenous custom. If the irrigable area lies within the
confines of one desa, the allocation of water rights is carried out by the
village authorities - in the past, specifically by the retired elders -
assisted by the village water board. Of its very nature this distribution
is not a mechanical application of a comprehensive set of rigid village
regulations, although rules about water rotation for different sawah
complexes do exist. It is essentially a matter of mediation in order to
satisfy actual needs. The same is true of arrangements extending
beyond the boundaries of one village, which in the Javanese era were
probably made by the imperial irrigation officials, who received a tax
[633] for it paid in padi (pemili toya); since then by our district
administration. The right to draw off reticulated water is withheld from
anyone who does not contribute his proper share to the maintenance
of the conduct system. In many cases its upkeep is considered a village
matter and the responsibility of all core-villagers - a rule which,
though welcomed by the Government in its construction of all land
ownership as 'communal ownership', in no sense supports this sup-
position.
(--)
So far as the right of avail of the village is still operative, non-desa
members are entitled to fish only with permission and payment of a
recognition, unless these requirements are waived between friendly
neighbouring villages. From Tegal one reads of coastal creeks being
subdivided for fishing, the allocations being constantly exchanged
among the population (-).
To the entire land law in this law area applies what was said earlier
about, on the one hand, the communal character of the Indonesian
way of exercising rights, and, on the other, the concrete way of
thinking of the Indonesians, who do not operate with property rights
in abstraction, but with land or water in terms of ·the actual use of it
as adat-owner or tenant, or for irrigation, and so on. Of the Indonesian
urge to give abstract promises a tangible appearance, the panjer [bond
sum] is the most obvious example (-).
Land and water rights not mentioned in this section (absolute owner-
ship, civilis possessio, usufruct, etc.) do not exist here, and the negative
prescription of rights is unknown, save in the self-evident case where
all memory of them has been lost; the above-mentioned term kedalu-
198 Van Vollenhoven on Indonesian Adat Law

warsa for the Dutch verjaring [extinction or acquisition of rights

[634] through Japse of time - lit. 'yearing'] does not seem to be in
conflict with this view.
There is no information whatever on indigenous forms of public
expropriation of land or water - as it exists, for instance, on
Bali (-).
Should anyone wish to learn what Javanese land law is not, he
should preferably read how the ordinance on mortgage facilities (Sb.
542/1908) imagines it tobe.
(-)
Law oj Chattels
Matters of debt are called utang piutang, sambut sinambutan by the
Javanese. As such they are disHnguished from matters concerning land.
I t is not clear whether there is an equally sharp distinction between the
law of chattels and the law of wrongs.
As compared with immovable property, movables are still considered
much less important by the great majority of Madurese and Javanese
people, though this may weil change gradually. The major categories
of movables are cattle, trees and other useful vegetation, houses
(including rice stores, cattle byres, shops) and vessels. Except in
Madura and the eastern corner of Java, it is fairly rare for farmers to
own livestock. Whereas livestock in West Java consist principally of
water buffaloes, in this law area cattle, sapi, are the most common
horned beasts. The notion that vegetation counts as movable property
is one which Java has in common with almost all of Indonesia.
In Madura and Central and East Java the houses stand at ground
Ievel. Kangean has houses on stilts, and Bawean has bamboo dwellings
on the ground and wooden houses on stilts. The rice store, or lumbung,
is called duri on Bawean; the cattle byre kandang. Until recently the
ordinary Indonesian bad no better idea of what to do with his wealth
than to invest it in bullion or unproductive gold jewellery, which was
then kept in a strang-box or grobog. Changing these habits and intro-
ducing all the other things necessary to create an Indonesian middle-
class cannot be imposed by regulations, but must be inculcated by the
provision of trusted saving facilities and by patient education.
The adat-ownership of movables differs from that of land only in
[635] that the latter is often still subject to the higher right of avail of
the village. Forthis reason (-) the content of ownership in movables is
practically the same as that in land or beachponds in those areas where
the right of avail over them has already weakened considerably.
VII Central and East Java, with Madura 199

Joint ownership (e.g. of rice stores and cattle byres) is common.

In cantrast to this, village ownership of movable property (-)
appears to be as rare as village ownership of genuine village lands (not
the so-called communal lands). lt applies to the appurtenances of
village administration, to the building serving as a place of worship,
the village ricestore, and the school building and fumiture. Movable
property includes many piously endowed (wakap) goods: Korans, kitab
and so forth; as with wakap lands, it can be assumed that wakap
articles, if attached to a religious institution (as they usually are),
actually belong to that institution. Also with regard to jointly owned
movables, co-owners do not individually have the right to demand the
division and sharing out of the property.
Adat-ownership of a fruit tree in the forest (-) is created by
appropriation, presumably by making a notch or some other mark on
it; in accordance with the right of avail, this is mostly forbidden to
members of other villages. Alang-alang grass growing wild is appro-
priated by marking it out (sawen), the long blades being tied tagether
at the comers of the field. Ownership of a tree can of course also be
created by planting it. Here, too, alienation (by sale, harter or gift) is
effected by the actual delivery of the property, in conformity with the
concrete nature of [this kind of transaction].
The alienation of cattle or water buffalo requires, as in Aceh, the
co-operation of the village authorities - headman, scribe, or some-
times religious official - for it to be valid. Even today, the small
payment, pesaksi, due to them for their co-operation, is known every-
where. For a long time, however, we failed to recognize it as an
[636] adat levy, regarding it instead as a courtesy payment, a re-
compense for assistance, or even as extortion. In some places the same
requirement applies when the ownership of a house is transferred. In
Banyumas, Kedu and elsewhere a buyer of cattle (at stock-markets
only?), when making a cash payment, receives back a few cents of the
purchase price from the seller, this sum being called cunduk laris, the
'bait of discount'.
lt is probable, though not explicitly reported, that the betrothal gift
or peningset is inalienable until the day of marriage. (-)
The fact that land and vegetation are considered by Indoncsians to
be quite separate has the consequence that, even if a person's right to
the land should cease, for example if he abandons it or moves from the
village, he retains his right to fruit trees (coconut palms, aren trees,
etc.) on land he formerly cultivated (-).
200 Van Vollenhoven on Indonesian Adat Law

Indonesian trade in movables is very widespread (in Bawean almost

every sawah owner is also a trader) in an elementary form. Buying up
goods in order to sell again quickly is called kulak (kilak); buying in
bulk tebas, nebas. Both male and female traders are called bakul
(Bawean sends out such pedlars to the whole of Central and East
Java); cattle dealers are be/antik.
Everywhere trading takes place on fifth-day markets (pasar) at a
certain market place in the middle of a particular village complex, and
dealings are for the most part cash-and-carry transactions. Cash trading
is likewise the rule in indigenous shops or warung. At the bigger daily
town markets and in bigger shops, Indonesian salesmen are the
exception.
Very common is the bakul or hawker's contract, whereby goods are
given to an Indonesian trader to sell (hawk), on condition that he will
within a stipulated time either band over the agreed price (he keeps
any excess), or return the goods, or - it seems - do a bit of both.
[637] For this 'indigenous commission contract' (-) the Javanese use
derivations of the key-word kempit ('to have under the arm', to
control), which we came across earlier for fields temporarily under
village control; the hawker of goldsmith's wares and other precious
articles is called pepara. The contract between bakul and owner of the
goods starts the moment the goods are put at the former's disposal.
In generat it can be said - as was revealed already in the section on
land law - that in this law area, too, a legal obligation does not
simply arise from a bare consensus, but requires the actual transfer of
something tangible. Hence, if a person wishes to secure the future
transfer of ownership of some movable - for example, the purchase
at a certain price of lime or tiles for a Madurese producer who does
not have them in stock (cf. the Minangkabau ijab-transaction) - he
would not, as we would, make a consensual executory sales contract,
but pay a 'binder' (panjer) to the producer. This sum is not deducted
later from the purchase price and its significance lies in its binding
power. The usual translation of it as 'deposit' is particularly misleading
in cases where a unilateral written statement is accepted as panjer. A
price paid in cash is called kencengan; if the entire price is paid in
advance the Javanese call it tempah. Naturally no artificial 'binder' is
required if the article itself has been delivered but the payment of the
price is delayed: such a credit sale appears tobe called pinjem, at least
in Java's eastern corner, where the word is said not to have the con-
notation of borrowing. (-)
VII Central and East Java, with Madura 201

Pawning of movables appears to be known mainly as security for

debts and is mostly of jewels and other articles of value, seldom of
cattle or agricultural implements. The paucity of data may weil be
connected with the Administration's prohibition on taking movables as
security for loans under a hundred guilders. (-)
[638] Half-sharing or other profit-sharing is widespread, especially
in respect of livestock (cattle, horses, poultry), and apparently par-
ticularly common in Java's eastern corner and on Madura. One variety
is angon janji paruan anak, the agistment of livestock subject to half-
shares in their progeny. Only the basic rules are certain: the contract
starts with the actual transfer of the animals; in the absence of special
conditions and with uniparaus beasts, the first-born is for the caretaker,
the second for the owner (sometimes the other way round), and so turn
and turn about. With poultry, half the brood goes to each party, and
where the nurober is uneven, the extra one is for the caretaker. If an
owner takes back his animal before it has reproduced, the caretaker
must be compensated, unless he has already received sufficient benefit,
for he can work cattle or horses as long as they are not harmed. The
liability of the agister is presumably - as in the case of custodian-
ship - stricter for loss by day than by night, and stricter if the agist-
ment was at his request, than if it was mainly for the benefit of the
owner. Fixed rules as regards legal presumptions and the burden of
proof are lacking; moreover, since these cases are in practice endlessly
varied the intervention of the court (-) is regularly sought - and
rightly so, for this is genuine Indonesian practice - to determine how
adat law ought tobe applied in this orthat particular case.
Very widespread - in fact, too widespread - is the practice of
borrowing money or produce (rice, seeds, etc.) for consumption, or
borrowing money against future repayment in rice (e.g. one guilder for
one pikul padi), and indeed borrowing of all sorts of goods. The
practice is the more serious because the ordinary borrower will in his
[639] turn lend what he has borrowed, and usually only understands
his duty to be the payment of interest if necessary, not the repayment
of the capital debt. On account of the prohibition of interest in Moslem
law, which is observed in most cases, usually more is repaid than was
lent. The contract becomes binding when the loan is put at the disposal
of the borrower. To the Javanese (and Madurese?) the loan of rice is
different from the loan of other chattels, and this is sometimes reflected
in the vocabulary used. Borrowing in general is called si/ioh (sambut)
or selang; possessing something on loan is sometimes called gaduh, the
202 Van Vollenhoven on Indonesian Adat Law

same term as is also used for holding land under a tenancy at will;
pinjem seems to mean something eise in Java's eastem comer (p. 200).
Contributors to village or parish rice stores have the right to borrow
seed-padi from such a lumbung. With normal loans to Indonesians the
lender is often Chinese. Before the generat use of money, borrowing
between Indonesians often took the form of reciprocal loans of goods
(silih-sinilihan); and even nowadays borrowing on the basis of reci-
procal aid is still known, in the sense of lending for nothing so as to be
able to borrow for nothing later. In 1916, regulations were made
against usury.
Hire (sewa) of movable property occurs in respect of carts, vessels,
gamelan instruments, plough-cattle; seldom in respect of Indonesian
houses. Rentals may, besides money, be paid in kind, for example, rice.
Livestock can be hired out by their profit-sharing caretakers or agisters
as weil as by the owner. The contract becomes binding by the handing
over of the animals; an agreement for future hire is made binding by
means of a panjer [material binder].
Custodianship (titip) merely as safe keeping is seldom mentioned,
but the type of arrangement under which the caretaker works to ensure
that the property does not deteriorate is very common, as with farming-
out livestock (titip, or anggaduhake, tetep, neteppaghi). The man with
whom the cattle are placed is rewarded for bis trouble - if the use of
the cattle is not sufficient recompense - either by receiving one or
more calves over a specified number of years, or padi or money. A
form of perpetual custody, whereby cattle are taken back only tempo-
rarily whenever the owner actually needs them, is also known. The
[640] caretaker may use the cattle in his custody, and may even let
others hire them for light work in the fields. (Do custodians of other
types of property have a similar competence?) The village, by virtue of
its right of avail, receives a recognition payment (pebuntut, pamesi,
etc.) from the cattle owner. The caretaker's liability is, at least in
Kediri, stricter for lass by day than by night (in the latter case only a
part of the value must be made good), and is reduced or waived
completely, at least in Pasuruan, if the caretaker gives notice of the
animal's sickness in good time.
Finally, among the important transactions under the law of chattels
the cropping lease and the advance sale of crops must be mentioned.
They both relate to crops standing in the field, ripe or green. By crop-
lease or tebas, panebas, is meant the right to reap someone's crop or
fruit trees, either in whole or in part- e.g. as much as the 'lessee' can
VII Central and East Java, with Madura 203

carry - against payment of a certain sum of money per bau (p. 186)
or per tree; a transaction wich in colloquial Dutch and German is
often called verpachting (leasing: rye or clover verpachting; Obst-
pächter). The same contract is found (also with the name tebas?) in
respect of emptying another's fresh water pond of fish. Whether the
contract is initiated with a panjer is not clear; the terms ngedol tuwa
[old, ripe] and ngedol kuning [green], which are used for crop-leases,
suggest the surrender of the crop. Fixing the price per bau or per tree
places the risk of crop failure on the 'lessee'. Chinese wholesalers
therefore seem to prefer an agreed price per pikul [shoulder Ioad].
Tebas is especially common in Java; the term tebas, nebas, is used for
every transaction involving goods in numbers or bulk.
The advance sale of crops, ijohan, ijon or ijeman (from ijo or ijem,
green, unripe) is a different thing. Here money is paid in advance to the
crop-owner at his request - so many guilders per bau - in retum for
which he undertakes to repay the creditor with the equivalent value in
crop ber bau. The creditor appears to share the crop risk to some
extent, because he does not get back more than a specified bau pro-
duces; yet in the event of total crop failure he apparently still gets a
[641] quantity of crop borrowed or bought for the occasion. In
assessing the information on the frequency of this transaction, which
is also known in Bali, one should bear in mind that the Administra-
tion - as the people are aware - considers it a bad thing and has
prohibited it (-). There is no mention of a creditor's right to help
hirnself to the crop.
Nebas and ngijo differ, in the first place, as to who actually does the
harvesting: with the former it is the lessee, in the latter the cultivator.
They differ further as regards motive and as to who actually initiates
the transaction: with nebas it is the buyer's need for rice; with ngijo,
the cultivator's need for cash. And they differ once again as to subject
matter: in the first case, the ripe or ripening crop; in the second, the
harvest in the distant future. Ngijo and the loan of money against sub-
sequent repayment in rice differ also in this respect, that the Jender of
money against the promise of rice bears no risk whatever, is not con-
cemed with where the promised rice is to come from, and therefore
lends the money before there is any question of crops. Nonetheless,
also this way of Jending money is sometimes called ngijo, and in both
cases the delivery of the produce seems to take place at the rice-store
of the farmer, not on the field. All these transactions often involve a
Chinese on the one side and an Indonesian cultivator on the other. The
204 Van Vollenhoven on lndonesian Adat Law

peculiar meaning of empingan for advance payment is not clear:

empingan is probably the generic term.
The law of chattels further covers a nurober of transactions not
related to tangible things. Here, too, one must keep in mind the com-
munal character of Indonesian society, which is not feit to be com-
posed of independent individuals, but where co-operation in village
communities and smaller groups (by virtue of the mutual assistance
arrangements to be discussed later) still prevails.
Among such other transactions is the relationship of Iandlord (majik-
an, dunungan) and lodger. The description of the social classes of a
village made it clear how common this relationship is: the Iodger either
having his own dwelling on the landlord's residential plot, or living in
[642] his landlord's house. The Iandlord bears the maintenance costs
of the residential plot; the Iodger is obliged to help the landlord,
not with regular cultivation activities - though naturally a bujang
[bachelor] Iodger may be engaged for that very purpose- but with
all kinds of services in and around the house (sumbang surang or
tulung), and with the initial reclamation of virgin land.
The nurober of different forms of agreement under which labour is
rendered to others is fairly !arge, and most of them we would call
service contracts. The highest form of service is that of practitioners of
trades which used to be famous in Java, such as gold- and silversmiths
(kemasan), coppersmiths and the like; or dalang, the prestigious per-
formers of wayang plays. Much lower in scale is the equally skilled
work of female dancers. The cultured Javanese will dance himself, but
he also has dances performed for him: by serimpi and badaya at court
(in permanent service), by tukung joged in private homes, and by
taledek (ringgit) and ronggeng in public. The services of indigenous
doctors (dukun, whether men or women) also belong in this category,
as does the paid work of wet-nurses and the like. Besides these, there
is the widespread practice of contracting labour for agricultural tasks:
preparing the land for planting, sowing, harvesting and so on. Casual
agricultural jobs include cutting padi (mainly done by women) for a
daily cutting fee (bawon) equivalent to a fixed proportion of what is
cut - i.e. piece-work - either in rice or money. In the case of a
cropping lease (above) the cutting fee is usually money, because the
creditor-harvester is mainly interested in the produce. Casuallabourers
are called bujang or kuli. There are also hauJage services with waggons
or grobag (Java has a long established tradition in these); as for
Madura and Java's north coast, sea transport services should be
VII Centrat and East Java, with Madura 205

mentioned as well. Herding cattle or ducks is also regarded as casual

daytime employment, the former always by young boys, bocah angon,
the latter usually likewise by children. Anyone with young sons,
adopted sons or young nephews has this work clone by them as part
of their duty to render him services.
[643] How are legal obligations created in these cases? Between
good acquaintances - thus often between fellow-villagers - every-
thing is clone by verbal agreement and in good faith. With Indonesian
strangers, and even more with Chinese, Arabs or Europeans, a material
hinder is necessary; and only then does an enforceable obligation arise.
In contrast to all these forms of casual employment there is per-
manent wage-labour, which is of far less significance than in western
society, because of the duty of relatives and Iodgers to render service,
the mutual and reciprocal assistance of village members, the share-
cropping of land, the agistment of cattle, and so forth. The permanent
wage-earning farmband is called buruh (berah), which sounds better
than the rather coarse term bujang. He is usually an unmarried or
recently married man who boards with the farmer, receiving as pay-
ment (opah) either a fixed amount in money or rice, or a share in
whatever has been harvested. Headmen also employ people in per-
manent service, besides those whom they can normally call up for duty.
Whether sailors come into this category is doubtful (-). Theirs is
often a special case. Sailors (pandega) on the merchant ships from the
island of Sapeken in the Kangean archipelago do not serve for wages,
but receive goods (what kind?) from their skipper (juragan) to sell for
a minimum price agreed in advance. Whatever they get over and above
that minimum they may keep for themselves: a kind of hawking on
consignment which calls for their performance as sailors as weil. Else-
where, too, sailors on Indonesian vessels are regarded rather as
business partners than wage-earners - something totally different
therefore from Indonesian sailors on European merchant ships, who
are subject to the provisions of our mercantile law (-).
Though juridical information on shipping is on the whole scarce,
one finds here and there reports of practices aimed at making sea-
fishing profitable. The sea fishermen of Bankalan in Madura normally
[644] sell their fish while they are still at sea to dealers who come
alongside with their boats (prau ngadang). Sometimes the buyers
appear to pay for a proportionate share of the anticipated catch, that
is, before the parties know whether it will be large or small. On the
island of Sapeken in the Kangean archipelago the wholesale dealer
206 Van Vollenhoven on Indonesian Adat Law

advances business capital to the fishennan, mostly in the fonn of rice

valued above the market price; the fisherman is in turn obliged to
deliver to him all the fish he catches and dries at a price below the
market value; the profitable difference between the two calculations
constitutes the dealer's interest on capital and his entrepreneurial
reward. As long as the fishennan is in debt to the dealer, as he is
almost perpetually, he regards hirnself as the other's subordinate - a
quite different relationship and transaction, therefore, from that of
fishennan and fish dealer in Aceh.
Incidental expense-sharing transactions also occur. One reads, for
example, of jointly (brandon) building and financing small irrigation
works, and of jointly transporting goods in one and the same cart.
Because of the prevalence of Indonesian forms of reciprocal aid - see
below - this is actually very seldom necessary.
Something similar is true of individually initiated long-tenn activities
with shared expenses in the fonn of a partnership or other association.
This can involve the pooling of labour just as much as the pooling of
money and property. The Javanese word for long-tenn partner is baton
(lit: dish-mate) or sakutu (lit: oath-fellow); that for the association
itself - as a company or merely as an enterprise - bebaton, patungan,
or the Arabic-Moslem sarikat or sirkat (-). Although such Indonesian
associations are beginning to thrive in Java, infonnation as to their
establishment, aims and legal consequences is still scanty. Sometimes
one reads of a society which exacts a 'panjer or entrance fee', an
entirely Indonesian concept in spite of the misleading translation. 1t
will undoubtedly become clear before long that we are on the
wrong track with misconceived creations like the decree of 1916 on
[645] co-operative societies. lt would have been better to leam from
Bali, where voluntary associations are old and richly varied. (For legal
personality of new forms of associations, see p. 155).
Commissioning an agent or deputy (sulih, sulur; or - Arabk-
Moslem - wakil) is an extremely widespread practice, yet infonnation
about it is scanty. In the folk-concept the agent even represents the
principal in what we would regard as strictly personal matters, such as
giving evidence. Examples are: appointing an agent to exercise the
rights and fulfil the duties of a land owner, appointing an agent or
deputy to fill an office, using an agent to sell something, or commis-
sioning a bakul to buy something at an agreed price (the agent hirnself
will have to buy at a lower price), and so on. Nowhere is it stated that
a material hinder is needed to establish a binding relationship.
VII Central and East Java, with Madura 207

Dice and betting are also widely known. The latter includes betting
on cock-, cricket- and tiger-fights, and undoubtedly also on the bull-
races of Madura and Besuki. The deposit paid by the leader of the dice
game is called bratu, the stake wudu or urun. The Staatsblad No. 306
of 1907 made all claims arising from gaming and betting unenforceable
in govemment courts.
Information on suretyship is scarce. The relationship is not un-
known, for in both High- and Low-Javanese there is a word for it,
namely nanggung (High-Jav.: nanggel) - from tanggung (tanggel) -
and nangghung. Tanggungan or tetanggungan is the person for whom
one stands surety, penanggungan is the surety itself. That the obligation
becomes binding upon bare agreement is unlikely. The way in which
suretyship works is not explained anywhere. Forfeit of surety, resulting
in the surety's personal servitude, disappeared when the voluntary
servitude of debtors (see below) disappeared. Collective surety in the
style of the Sundanese tanggung renteng ('standing surety in a row')
has come into prominence because of the recently instituted farming
credit; the sureties are in that case jointly liable.
[646] Among the obligatory contributions arising from adat law
itself must be counted bridal gifts at weddings (above) and similar
gifts at other celebrations. On Bawean all guests bring cooked dishes
with them to the marriage feast held at the house of the bride, so that
there need be no cooking there, and they often collect some coins
for her during the celebrations. Of more public significance are the
contributions which all core-villagers, perhaps also the other desa
members, bring to the annual village feast after the rice harvest
(sedekah bumi, bersih desa), and to the celebration of sowing the rice
and other sacred village meals. Such contributions (in rice, fish, fruit,
etc.) are called sorogan. They are required for the religious services
etc. which accompany a village funeral (funeral rites are selawat; the
contributions urun selawat). (-) The donation of obligatory gifts is
called tulung-tulung [collective help] on Bawean. Scattering money at
funerals - the strewn money being called sawur - seems to be more
a matter of social decorum than a strict obligation. Whether the word
balesan for a counter-gift indicates an obligation to reciprocate is not
clear. (-)
In the discussion of village institutions it was clear how firmly
entrenched communal aid between villagers still is. It is a moot point
whether we should sweep away this popular custom for being non-
westem, or whether we should guide it in the right direction. Whereas
208 Van Vollenhoven on Indonesian Adat Law

under westem law legal acts are perfonned either as a quid pro quo or
for nothing, in adat law they can also be done against the certainty or
expectation of some future reciprocal service. This far-reaching and
remarkable institution of collective aid (or service), which mostly
consists of providing some labour but can equally well involve, for
instance, the loan of rice or helping out with a cart, is found in this
law area in each of its four Indonesian manifestations. First, in its
old-fashioned form of communal aid it is rooted in adat law itself,
requires no explicit agreement or arrangement, and is based on the
mere fact that the pardes are fellow-villagers. lt is this kind of
assistance which is interwoven or coincides with the duty of rendering
[647] desa service. lt involves work in the fields of fellow-villagers
and help with building or repairing their dwellings, as well as interests
directly conceming the village, such as taking care of annual festivities,
the headman's house and official fields, and his domestic and official
services (sometimes also in respect of other members of the village
administration). People are, if necessary, called up for this sort of work
by the village messengers or kebayan at the behest of the village
authorities, and rewarded with food and delicacies. Occasionally the
village headman, through his own dependants, participates in this
communal service; and now and again it extends to one or more
neighbouring villages. This compulsory communal aid has many
names: kuduran, uduran, pengresaya (from resaya), sambatan, sambat-
sinambat; perhaps also lebotan, to relieve one another; but probably
not tulung tinulung, nor utusan ajek, and certainly not jak-ngajak,
'inviting each other'. Does its sanction lie in the fear of becoming isin
(being shamed, malu)?
Secondly, there is reciprocal aid, whereby a person requests all his
fellow-villagers to come and help him of their own free will but in
the expectation that there will be reciprocity: for example, with the
preparation of arable fields or fish ponds; and also because of the
fear of venturing alone, or with only a few people, into the forest.
Likewise, on Kangean, reciprocal aid is enlisted for harvesting the
ripened rice, whereby a man must reciprocate the service of who has
tumed up to help him cut padi, either in person or by sending a
substitute from among the members of his family. Whatever nurober
of invited helpers appears, the same nurober of days must elapse before
he can make a second request for assistance. The fact that this reci-
procal aid is referred to by the same tenn as the first-mentioned
communal aid - albeit with inevitable local variations of meaning -
VII Central and East Java, with Madura 209

has caused the difference between the two to be overlooked.

Thirdly, people recognize the sarne kind of reciprocal aid, but this
time restricted to a circle of relatives or close neighbours - as with
the loan of all sorts of things.
And fourthly, there is collective aid without the expectation of
reciprocity [on the fields of well-to-do people] sirnilar to mösöraya in
Aceh (the terrn söraya is the same as resaya in Javanese). All these
forrns of collective aid have in common that they are rewarded with
food and refreshments while the work is being done, and in the case of
[648] prolonged work, with a treat at the end.
More and more often, besides all this collective aid, individual
enterprise is gaining ground and, in pursuance of this, independent
co-operative forrns, such as joint undertakings with expenses shared,
or even enduring partnership. Yet the mapalus [work parties] of
Minahasa show that even the oldest Indonesian form of collective aid
still has a part to play in already well developed cornrnunities. (-)
If we now review the law of chattels in this law area, we recognize
in it again the five characteristically Indonesian features: (1) it is still
only just on the way to becoming individualistic; (2) all legal relation-
ships are conceptualized or executed in a concrete fashion; (3) only
the main outlines are laid down, with further refinements and pre-
surnptions lacking; (4) for the classification of all these transactions,
their rnotivation is vitally important; (5) general theories as we know
them are lacking, and a need for them is not felt. To each of these five
points a note may be added.
The non-individualistic, cornmunal nature of this society is clearly
expressed in the forms of rendering aid described above. Not because
some ordinance prescribes it, but only through the development of
individual initiative will this comrnunal aspect recede into the back-
ground; let us take care not to lose the beneficial part of it.
The concrete elernent shows itself in two ways. First, it seems that
the subject matter of a right must be a tangible thing. Conceptually,
therefore, property does not include debts due, or rights to claim; it
concerns material chattels the use of which one enjoys on the basis of
their being owned, leased, loaned, pledged, and so on. Movables are
therefore transferable on the basis they are to be enjoyed (even those
in safe-keeping); on the other hand, rights or duties of an essentially
personal nature (mandate, suretyship) cannot be transferred. The right
to redeem a pledge is only the reflex of the enjoyment of the pledged
thing, and sustained because of the reality of that enjoyment. The
210 Van Vollenhoven on Indonesian Adat Law

second manifestation lies in the tangible token or hinder (panjer)

which is necessary to turn bare consensus into a binding agreement.
The lack of detailed prescriptions was clearly evident in the case of
profit-sharing. Giving up the traditional freedom of Indonesian judges
[649] for premeditated case law would not improve matters for the
litigants themselves. Instead, what is highly necessary in the economic
interest of the population is that the parties themselves should define
rheir respective rights more precisely beforehand. An institution like
the farming credit system is a powerful aid in this direction; and it
seems essential to have Indonesian public notaries, partly because of
their educative influence.
The importance of motivation in the Indonesian classification of
legal transaction must be respected by us westerners. By presenting a
cropping lease as the sale of a future crop, by identifying the advance
payment of crops with monetary loans against padi, by construing a
hawker's commission contract as a suspended sale, or a profit-sharing
arrangement as a partnership, we make the transaction as incompre-
hensible to the Javanese as it would be for our jurists if sale were to
be subsumed under harter, or marriage classified under the law of
contract.
Finally, the lack of general doctrine seems worse than it is. In
practice there is no need at all for rules about divisible obligations,
joint liability, novation, remission of debts, and so on. The extension
of the date on which a debt falls due, but at the price of more onerous
terms than before, is all too common in practice, yet needs no special
rules. Place and manner of payment can be left again to the contracting
parties, and the Indonesian may be spared our obscure rules on default.
Prescription of debts is unknown, and the consequences of breach of
contract are left for the court to decide. Probably we could devise some
useful new rules, but these should be strictly confined to what is really
needed (-). It should be remernbered that sale, harter, and gift do
not confer a right to claim transfer, but are actually ways of trans-
ferring adat-ownership.
(--)

Law of W rongs
[650] During the course of a century of government justice- which
even before [the Native Criminal Code of] 1872 5 barely recognized
adat penal law - the law relating to impermissible conduct has
changed beyond recognition. Only here and there can one still detect a
VII Central and East Java, with Madura 211

little of the old folk concepts which ought to have been kept alive by
the regional court advisers.6 lt should be realized however that such
concepts included what westemers would regard as civil wrongs. As
Javanese terms for actionable wrongs, at least for a punishable wrong,
one finds the synonyms kedursilan and kedurjanan.
As adat wrongs (taking the term in a broad sense), apart from the
obvious ones like murder, robbery, theft, incest, adultery, etc., the
following are especially noted: breach of a binding betrothal, un-
authorized appearance as an Islamic solemnizer of marriages, infringe-
ment of the right of avail of another village, theft of water (infringing
someone's ownership of irrigation rights), theft of cattle (easy and
common), theft of wild fruits at night (a serious wrong), and so on.
In addition, there was and is an elaborate village penal law relating to
all kinds of minor offences against the desa order. This penal law,
being adat law, ceased tobe officially recognized after 1 January 1873;
but in practice it is allowed to remain as a disciplinary code, its imple-
mentation being left to the village authorities. Likewise, the Christian
communities define their own delicts, with corresponding disciplinary
sanctions. Not considered punishable or only regarded as a minor
wrong is the killing of a thief of field produce at night (the culprit, for
fear of being misunderstood, will often teil our courts that he thought it
was a wild boar). Precisely because adat wrongs also include actionable
wrongs under our law - the court will have to decide in borderline
[651] cases whether to exact punishment, compensation, or both -
the Iist of these wrongs is not exhaustive.
Self-help (taking the law into one's own hands) is not condoned if
the accused could have turned to the authorities, or if his retaliation
exceeds reasonable bounds; but, for example, anyone seeing his pre-
ferential right at some lonely place in the forest being infringed would
be acquitted if he forcibly ejected the trespasser. As regards the applica-
tion of the law of wrongs by our civil courts, a century of government
justice does not appear to have shed much light. Instead of treating
prohibited self-help in sawah matters as an adat wrong, it was muddled
up with the question of the right to the field and dealt with after the
fashion of proprietary actions under the Civil Code.
The legal remedies for adat wrongs comprise the restitution of
property, single or multiple compensation (ili-ili, ilenan), formerly a
fine or death, sometimes also corporal punishment. During the Java-
nese era the ruler usually reserved for hirnself the power of capital
and corporal punishment, and such cases often came before the
212 Van Vollenhoven on Indonesian Adat Law

religious judge. Examples of desa punishments are: some extra days of

communal service, temporary prohibition of the use of a field, pro-
hibiting a person from becoming a member of the village authority,
and requiring the offender to pay money. Examples of punishments in
mission communities are exclusion from communion or from taking
part in other community celebrations. (-)
The liability of the village for wrongs committed on its domain by
persons unknown or uncaught - either for all kinds of wrong, or only
in cases of murder and theft - can probably be deduced from the
boundary disputes and the readiness to give up pieces of land if a
corpse had been found in the desa forest or upon the discovery of
theft. The Government, whose Criminal Code eschews such liability,
has in the Besuki district since 1904 nevertheless made the whole
village responsible for grass fires, the penalty being additional com-
pulsory heavy labour. (-) In the same district neighbouring villages
are also held liable for cattle thieving. It is not certain whether parents
[652] are Iiable for all or some wrongs (theft of wild fruits, etc.) of
their under age children.

Legal Remedies
lt should be stressed first that in this law area, as in the rest of Indo-
nesian adat law, there is no separation of real and personal actions.
The court is simply asked for legal redress, and it depends on the
circumstances of the case - e.g. if another man's land or movable
property has been sold - whether it will order the restitution of the
property itself, or some other form of reparation, as long as the matter
is resolved for all parties. (-)
Public shaming (isin) of a fellow villager is also here a powerful
sanction against many trespasses. Total ostracism makes life for the
victim virtually impossible in his own village. Actual banishment from
the village has not been reported.
The contravention of ila-ila or ancestral institutions (ila-ilane wong
kuna; sangker or waler, 'prohibitions') is certain to be punished by
supernatural disaster (cilaka, bilahi). Trespassing on or spoiling land or
other property which is angker (taboo) will also bring supernatural
retribution. To be under ancestral prohibition is called buyut. To
enclose (nyengker, from sengker) property, or to deny access to it by a
prohibition sign (gawar), is probably also sometimes sanctioned by the
fear of supernatural harm.
(--)
 CHAPTER VIII

THE MAINTENANCE AND DEVELOPMENT

OF INDONESIAN ADAT LAW
[April-December 1926]

1. Voluntary Observance of Adat Law; its natural growth

[233] * Adat law exists in rich variety among the Indonesians and
foreign orientals of the archipelago. Its content used to be different,
and it is still steadily changing. What has made it a binding law? What
forces have permitted or encouraged its development?
The jurists of course have a pat answer: in case of non-compliance,
adat law, whether old or new, is forcibly sanctioned by govemment or
indigenous courts. This view finds support in our system of justice. (-)
This explanation for the continuance and change of living adat law
is not in accord with the facts - which is fortunate, for if adat law
could rely only on the pronouncements and the power of our courts,
little would remain of it.
In the first place: the arms of our judges are short. Consider how
countless the legal disputes must have been among these millians of
people in the eighty years since 1848, and how pitiful, in many regions,
[234] the number of civil suits brought before our courts. There are,
or were, landraad courts in Java having only a few dozen civil cases
each year, and govemment courts in Bomeo, with jurisdiction over
Malays as weil as Dayaks, which would go for years without seeing a
single Dayak. In parts of Java the population systematically avoided the
justice we dispensed, and, unaware that the landraad is a civil court,
would ignore it in dispute over contracts. 1 Let us recall how lament-
ably small is the number of published adat cases: five hundred or so
after eighty years in a population of thirty to fifty millons.2
Apart from this, the pronouncements of our judges are often in-
expert. In Tune 1919, the Director of the Department of Justice wrote
candidly to the Volksraad 3 that academically trained lawyers had no
useful part to play in administering justice to natives, for 'adat institu-

* [Marginal page references are to Vol. II of the original.]

214 Van Vollenhoven on Indonesian Adat Law

tions are involved, in which lawyers are not at home'. Even the Indo-
nesian headmen in the regency or district courts are often far from
well informed about the adat of the village folk, and will sometimes try
to follow the wrong kind of example from the government courts. Also
administrative officers involved in government or indigenous justice,
though often surpassing professional judges in concern for and knowl-
edge of adat law, have repeatedly done violence to it. Consequently,
few of the published adat decisions can be held up as models. (-)
[235] Does this mean that formal jurisdiction is of no importance
for the validity of adat law? Certainly not. Nothing could be more
beneficial for the maintenance of adat law than a coherent series of
judgments which explore, understand, and uphold this law; nothing
could be as disturbing as haphazard and arbitrary decisions. But if adat
law and the courts should diverge in their paths, adat law would not
be vitiated, for its main strength does not lie in the words of a judge,
but in something eise. (-) This argument can be substantiated.
First, the Islamic courts (council of priests, etc.), have for centuries
been maiming the adat law of succession and ignoring the betrothal
gift and adoption, without, however, ridding the living adat law of
these institutions (pp. 136f., 167, 170). Secondly, many rules of adat
constitutional and other law have remained operative though hardly
ever coming before the courts. Thirdly, when statute law requires the
courts to deviate from adat law, the legislator is hirnself admitting the
dualism of popular law and judge-imposed law: for example, the last
words of section 75(3) Regeringsreglement; the 1907 Ordinance against
claims arising out of gaming or betting; and the 1916 decree against
usury. Finally, judges sometimes do have a discretion in their choice
of rules of law: for instance, the rules of adat procedure, which the
court, whether government or native, may choose to follow or not; and
the form of marriage between Moslems, the validity of which depends
[236] on recognition by the religious judge.
This is enough to show that the law of the government courts, of the
rapat or musapat tribunals, and of the religious surambi, need not be
identical with the law of the countryside, the market place, and the
harne, and that the latter must have its own sources of authority,
outside the courts of law.
Discovering this should not take long, for the fact of course is that,
like people everywhere, foreign orientals and Indonesians alike conform
to ,their adat rules, willingly, with conviction and in good faith (-).
But what makes them observe these rules so loyally?
VIII The Maintenance and Development of Indonesian Adat Law 215

Four motives must be considered: they are accustomed to do it from

childhood; they are in awe of their ancestors; they tend to defend their
own interests; adat institutions are usually passed from mouth to
mouth.
a) The first motive needs no explanation. Even in the most highly
developed societies, thousands of things are clone the way they are
because of childhood learning. lt is not necessary to relate this to the
'herd instinct of primitive peoples', although it is certainly true of
backward peoples and areas, that 'to bear up against public opinion is
notoriously the last thing of which the savage is capable' (Marett,
1902:92). The adat law relating to courtship and marriage, to the
gathering of forest produce within certain boundaries, to loans of rice
and money, to mutual aid, share-cropping, bridal payments - all of
this law is full of rules in which 'this is the way to do it', 'this is
allowed', 'so it ought to be', coincide. Although never laid before a
judge, or backed up by case law, these rules are as firm as a rock,
simply because everyone knows them and respects them (Wilken, 1912,
II: 384). Only if a person attempts to break their magic bond is the
court called in- but then its word is decisive.
[237] What sanction lies behind this conformity inculcated from
childhood? Fear of scandal (Holleman, 1918:432, 1920:398), of being
thought a fool, of being shamed or laughed at (malu, isin, pp. 117,
212 above), a desire for what Indonesians call 'coolness' (-).
The bluster of totok [westerners] will leave an Indonesian cold
(even though slanging matches are known in the Moluccas); a repri-
mand in the presence of others will make him vengeful or impudent
(Nederburgh, 1919: 189n); but ridicule from his own group, especially
if it takes the form of subtle mockery, is virtually irresistible. For the
administration of justice this fact has the significance of showing how
everything is known about everyone in the intimate sphere of village
life (-), which is a great advantage for the indigenous village justice,
and sometimes enables a government court to strike a wealth of
evidence just by changing its venue to the scene of dispute. This is
much less so in the towns, of course, and for many dispersed Indone-
sians; and it applies to foreign orientals only when their way of life
has something in common with the Indonesian.
b) The second motive mentioned - and it, too, can be instructive
for government courts - is the awe of the people for their ancestors
(-). The ancestors do not appear in the same light everywhere. In
heathen districts they are deified, their souls or spirits being identified
216 Van Vollenhoven on lndonesian Adat Law

with gods, and among the Chinese too, their worship amounts to
deification; but in Hindu, Moslem and Christian areas people take a
less extreme view (-). lt is not reported whether the Balinese hause-
temple gods are ancestors. In Aceh, ancestor worship appears to have
[238] disappeared or diminished; among peoples with bilateral descent,
such as the Toraja, it very often extends to males and females alike. The
Nägarakrtägama epic (1365 A.D.) of Java has a funeral meal in honour
of the ancestors, the 9räddha feast. In Java, where the dead (even those
without issue?) are worshipped from a thousand days after death, the
custom still exists of visiting the ancestral graves to ask permission and
blessing (nyuwun pengestu) before some important undertaking - cir-
cumcision, marriage, pilgrimage to Mecca, departure for advanced
study in Holland. The request is not in words alone, but flowers and
incense are respectfully offered. But this is one of those matters on
which they do not, without necessity, confide in the 'enlightened'
European.
As has already repeatedly become apparent, the adat law of the
Indonesians and the Chinese is the adat of the ancients, of the dead.
lt is the complex of legal customs on whose observance (like that of the
other customs) the ancestors fix a watchful eye: ila-ilane wong kuna,
adat poyang, the customs of the ancestors, the voice of the fore-
fathers (-). They still keep their hold on life on earth and wish their
adat to be observed, not only the various mystical prohibitions
(pantang, pemali, buyut), but also the laws relating to authority, the
land, and family life. Non-observance provokes their curse, the curse
of the gods: the kena sumpah poyang of southern Sumatra. In Minang-
kabau, it would violate the oath of the ancestors (sumpah satie) if a
person not belonging to the village community were to buy village land
(Van Hasselt, 1882:305). Sometimes the ancestral curse strikes only
the actual violator, but sometimes his entire village or clan, or his
special oath-partners, are affected.
[239] A whole series of consequences follow from these beliefs. A
European who wittingly or unwittingly violates things dear to the
ancestors - a sacred tree or patch of grass - will often pay for his
crime by being poisoned, for complaining to the Administration or the
law court would not help the people.
With offences which expose a whole village to ancestral anger it is
not enough to punish the offender. The village must be cleansed of
guilt, for instance by sarcrificing a buffalo, chickens, rice, eggs, flour:
the membasuh kampung, menepung (tepung) tawar, lit. 'the sprinkling
VIII The Maintenance and Development of Indonesian Adat Law 217

with flour', such as is still clone to those ab out to be circumcised

(Wilken, 1912, 1:697). Our regulations for the indigenous administra-
tion of justice and our taxes on the slaughter of beasts often take
account of this (-).
Official and state regalia are filled with ancestral power, and the
ancestors protect and support the wearers. The most striking examples
are those in which the ruler persanifies the ancestors, both as an
authority to be venerated and as the defender of adat, as with the
divine kings of Hindu times, or the divine Batak and Luwu rulers (-).
Similarly, the Buginese-Macassarese state fetishes receive the worship
accorded to ancestors, and fulfil the ancestral duty of preserving adat.
(Hence, probably, the name ada' or hadat, as used in South Celebes for
the councils composed of the guardian of the fetish and high state
officials. Here, the fetish itself and the head of such a gaukang state
[p. 50, above] are venerated and propitiated, sacrifices being often
made to them, and their blessing is invoked should the crops do badly;
even the idleness of the divine ruler is admired rather than criticized -
Wilken, 1912, 111:134-40, 207-8; Adriani and Kruyt, 1919: 130-1.)
These examples make it clear that one cannot abolish a fragment of
adat law as one would a municipal police regulation, and that there is
more to adat law than utility and logic. This is borne out on the one
hand by the Balinese manner of 'legislation', and on the other by the
idea the lndonesians sometimes have of the origin of their adat.
Legislation in our sense is unknown in most law areas. Yet it
[240] developed on Bali, where it found expression particularly in
village regulations and those of irrigation societies, which are preserved
in desa and subak archives. These were formerly either approved by a
charter from the princely ruler - thus implying his promise to honour
their terms - or laid down by the ruler hirnself upon request. ls their
authority now dependent on the will of the living; are they considered
to be better if they are of more recent date; does their legal force rest
on secular sanctions only? To the contrary. All of these laws are
regarded as 'ancestral adat, to which more value is attached than to
anything else in the world'. The counsel and assistance of the gods are
sought when the laws are written down and when they are amended.
Wrapped in white cloth and kept in the village temple or irrigation
shrine, they are preserved as sacred writings containing 'a part of the
adat, which is of divine (i.e. ancestral) origin'. They are consulted
- preferably in the village temple - after sacrifices, while the gamelan
plays, and 'the gods' do not permit all and sundry to inspect them.
218 Van Vollenhoven on lndonesian Adat Law

When put away again, the members of the village or irrigation society
concerned swear to observe them, invoking curses upon their own head
should they fail to do so (Liefrinck, 1890:329-39). None of this has
anything to do with their Hindu religion; it is most intimately con-
nected with their belief in divine ancestors who protect adat law.
I t is not surprising, therefore, that people in other parts of Indonesia
should describe their adat law as having been decreed on a particular
day by named forefathers, just as the Ten Commandments were pro-
claimed by Moses.
The most celebrated of these popular traditions is the Minangkabau
tale of the two legendary lawyers, sons of one mother, who made a
political testament proclaiming the adat law. The one, Datuk Kyai
Katumangguangan (representative of the moiety Koto-Piliang), is
regarded as the conservative one, the faunder of the 'religious laws';
the other, Datuk Papatieh nan Sabatang (representative of the moiety
Bodi-Caniago), is the visionary, the author of 'popular customs and
institutions', of local adat law (matrilineality, the suku system, etc.).
What they proclaimed are still the traditional 'inherited' adages (kato
pusako), representing the ancient but still valid adat law (sometimes
called 'adat nan isti'adat).4
[241] Admittedly, it would be unreasonable to Iook for history in
such tales, or to open an account of adat law with them. Nor would it
be reasonable to see such legendary legislation as explaining the differ-
ences between the adat law of Minangkabau and of, say, Melaka or of
the Malays of Borneo. But they deserve full attention as illustrating the
Indonesian way of thinking and seeing things.
But how, in Indonesian or Chinese thought, is this 'adat of the
ancestors' tobe reconciled with the gradual transformation of adat law,
with the addition of new adat law or - as the Minangkabau some-
times call it - adat that is 'made' adat ('adat nan di'adatkan)? 1t
should be said first that any actual repeal and replacement of the adat
of the revered ancestors is incompatible with the indigenous view.
'Adat nan di'adatkan therefore does not mean the making of new adat
law, but rather the adding and elaboration of details, local interpreta-
tions and decisions on how to apply the traditional adat in particular
cases. Adat law changes through force of circumstance. In Jambi, this
process of growth is expressed in a fourfold image: the long-forgotten
adat is something hidden in a tomb; the obsolescent adat is a field of
stubble left waste; the fully flourishing adat is the example which is
regularly followed; and the newly developing adat is a fresh shoot
VIII The Maintenance and Development of Indonesian Adat Law 219

sprouting from a stump (AB V (1912):223; cf. Snouck Hurgronje,

1910:26).
The indigenous authority charged with preserving the adat of the
forefathers has to ascertain - just like our judges - what is done in
concrete cases. This work is comparable with the task of applying
immutable Calvinist doctrine or irnrnutable Islamic law to the richly
varied problems of modern life. If the old adat specifies rates of
[242] payment (water buffaloes, goats, chicken, cloth, etc.) and if the
value and availability of the goods have changed, other things may be
subsumed under the unaltered adat scale of payments. If adat law
forbids a girl to marry before her elder sister, in the belief that she
would prove barren or be ill-fated in some other way, the practice
develops of marrying off the elder sister to a very old man or to a child,
and of dissolving her marriage at once by repudiation. At a later stage,
it may become customary to make an offering to appease the ancestors.
If in Minangkabau, at least in the borderlands, the custom gains ground
whereby a father leaves a part of his estate not to his matrilineal kin
but to his own children, the traditional legal maxims are sometimes
interpreted as forbidding this as far as wet sawah fields are concerned,
but not as regards shifting ladang fields and money. Here, personally
acquired property (harto pancarian), originally subject to the will of
the future inheriting family, is so no longer. In Aceh, the indigenous
bridewealth and the Moslem marriage gift have fused; among the
Toraja, bridewealth has also assumed the function of legitimizing
children (-); and everywhere the cornrnunal right of avail over land
is gradually fading. Yet none of this is brought about deliberately, and
the people think that they are applying the ancient rules in new
situations. As Surnner Maine puts it in his Viilage Communities (4th
ed., 1881:110, 116):
'These rules . . . do not purport to emanate from the personal
authority of their author or authors ... ; there is always, I am
assured, a sort of fiotion under which some customs . . . are
supposed to have existed from all antiquity ... Legislation is the
only terrn properly expressing the invention of customary rules
to meet cases which are really new. Yet, if I may trust the State-
ments of several eminent Indian authorities, it is always the fact
or the fiction that (the) council (of elders in the village com-
munity) merely declares customary law.'
If it withstands the passage of time, ancient adat law can in this
way acquire a new raison d'etre, a new role. For instance, the
220 Van Vollenhoven on lndonesian Adat Law

assistance rendered by village authorities in individual land trans-

actions - assurning that in former times this was nothing but a mani-
festation of the village right of avail - may become of practical value
for the attestation of legal transactions, and for this reason may outlive
[243] the right of avail to which it owes its existence.
The lesson for us is that we must not begin by asking whether we
approve of a practice. We should start by understanding it. But our
administration and courts of law need not be more ancestor-minded
than the Indonesians, and they should not feel obliged in every case
to uphold ancient adat law at the expense of new. (-) Further, we
must be on our guard against logical and rationalistic explanations of
adat law - something at which Indonesians, too, become adept after
being introduced to education and the passion for dialectic. They
run the risk - as we ourselves did with the rise of science in our
country - of losing sight of the non-logical and non-rational origin
of many things. New adat prescriptions, in the sense of new rules of
conduct consciously framed by the people themselves in order to
replace old rules which they now wish to abandon, are therefore
virtually only conceivable in groups severed from their traditional
roots. Christian Indonesians are the clearest example of this.
c) In addition to habituation from childhood and fear of the
ancestors, there is a third motive for faithfully observing adat law:
self-interest when it is threatened by another's violation of the adat.
The obvious course of action is then either to warn the other to respect
one's rights, or to resort to self-help. He who finds a stranger working
in his field, or sees the preferential rights which he established with
visible signs in the forest violated by another, or comes harne to find
another man talking to his wife (often a serious adat wrang), will chase
the offender away if he can, and teaoh him better in no gentle fashion.
(To what extent self-help is still considered lawful, will be discussed
below.) But besides this, he calls upon the aid of his guardian ancestors
[244] by putting protective signs near places which, according to adat,
should not be violated (-). Such signs are especially in use to protect
a crop in the field, or a patch of virgin forest intended for reclama-
tion, or a selected tree. They may serve to indicate that a field has been
distrained by the authorities or other claimant, or in order to prohibit
the picking of fruit or the reaping of crops. Examples are the 'banning'
sign in Aceh; the uru, matakao, kanwahit and other sasi signs in the
Moluccas; the sawen in Bali and Java; the haseupan in West Java; and
the kiadi or kialu in Madagascar. 5 In similar fashion the imputed
VIII The Maintenance and Development of Indonesian Adat Law 221

mystical power of an official government 'stamp' is believed to lend

greater force to adat agreements (Holleman, 1920:400; and in AB
XVIII:96), and people feel protected if they have a travel pass bearing
the Dutch coat of arms, or a stamped cultivation permit. In such
protective signs there is a combination, a joining together, of the
ancestral sanction and personal sanction for the maintenance of the
adat. This combination is also evident in the cursing formulas (usually
heathen, though also Hindu or Moslem) appearing in such written
announcements as 'Should a miscreant attempt to disobey my instruc-
tions, may lightning strike him, may tigers devour him, may Allah turn
hisland into a wilderness' (Kern, 1917 (VI):308-16; Schrieke, 1918:
399, 400, 408; 1919: 146-7). In a typical variant of the formula, a
man vowing to uphold the adat with the help of the gods will put a
conditional curse upon himself. Self-cursing was briefly mentioned
above (p. 218) in connexion with legal change and the acceptance of
new Jaw, but it is mentioned here as a means by which a person
disciplines hirnself to observe adat law or a particular obligation
imposed by it. A Moslem Indonesian may employ Moslem vows for
[245] the same purpose.
d) As the last cause for the voluntary observance of adat we find
that the people regularly talk and hear about their ,adat rules. There
may be no official 'law reciters' in the old Scandinavian or old Friesian
sense (cf. Deuteronomy 31:9-13; or Ezra's reading aloud of the law),
but in many areas adat is a constant subject of conversation in village
and home. Adat scales of payment are recalled, adat sayings recited
and discussed, adat terms explained, and so on. In Minangkabau, this
kind of legal knowledge is said tobe highly developed, but throughout
Indonesia it is also flavoured with inaccuracy and learned pre-
tence (-). We may compare the effect of such communications in the
popular sphere with our own constant recounting of the Mother Goose
stories or Grimm's fairy tales, or of regular bible readings, or, among
the farming community in Tirol, the habit of spending the winter
evenings with reading the Austrian Civil Code (Maine, 1881 :55-6).
The modern version of this inculcation of adat is its discussion in the
Indonesian press, for instance, the Soara-Batak (from 1919) and
Oetoesan Melajoe of Padang- see e.g. AB VI:221-43. (-)
The situation among Chinese and other foreign orientals as regards
the observance of their own adat confirms what has been said already.
Habitual usage beginning in childhood explains the position of Chinese
women in Indonesia, and the persistence of concubinage and marriage
 222 Van Vollenhoven on lndonesian Adat Law

by purchase. Awe of the ancestors, whose 'soul tablets' are still wor-
shipped on the family altar (-), helps to ensure the continuity of the
family, while self-protection of interests is manifested, among other
things, in the artificial unity of the family estate (-). If we remernher
that outside the former little merchant (kongsi) states of West Borneo
there were no Chinese judges to uphold their adat, that the Chinese of
[246] the Indies are very mixed and without much cohesion, and that
the government decrees of 1855 and 1917 and our courts have in many
respects failed to support their adat, it becomes strikingly clear how
vital the voluntary and good-natured observance of their adat law is for
its persistent functioning.
Nevertheless, as regards both Indonesians and foreign orientals it
will be obvious that the adat law becomes shaky when one or more
of these four sustaining pillars goes missing or begins to crumble.
One thinks immediately of those people who, individually or in small
numbers, have broken away from their own community, and of the
lack of cohesion in the European towns, in cantrast to the population
of the countryside full of villages, and of indigenous capital towns
like Surakarta. In the past, and often even today, Indonesian migrants
usually had their own quarters and headmen (the so-called 'nation
heads') in Batavia, Macassar and other large towns. This situation
probably favoured adat observance by the group concerned, as did
residential segregation with foreign orientals.
Christian Indonesians who lose their fear of their ancestors (which
is by no means general) and who become less sensitive to the ridicule
and disapproval of their fellow villagers, or who form residential
communities of fellow adherents, may weil lose a powerful motive
for observing the ancient adat law, but their observance of their new
Christian law is likely tobe sustained again by the fear of their friends'
ridicule, the fear of God's will, and the regular reminder of His com-
mandments.

2. Attested Observance of Adat Law; its internally guided

development
Against the voluntary observance of adat law one should not at once
pose the opposite: observance compelled by courts of law and the
police. Between these extremes there is an intermediate form, of
particular importance in Indonesian and Chinese adat law, but easily
overlooked by westemers because it is largely or entirely unknown
in present-day western law. This is the practice of headmen and others
VIII The Maintenance and Development of Indonesian Adat Law 223

of giving guidance in the observance of the adat, of taking it under

their care and supervision without there being any question as yet
of the resolution of disputes or of action to enforce the law.
The most obvious examples are to be found where people live
together in easily supervised and sometimes self-contained groups -
in families, villages, village federations, clans and tribes. From the
outset we should keep in mind that there need be no strict division
between administration and justice in adat law, even though Indo-
nesians are familiar with the distinction.
In village organization and village services, in Java and elsewhere,
we find a situation in which, besides the first-class core-villagers,
secondary residents, and third-class hangers-on, there are also old
people, youths, and widowers, some robust, some weak, to whom no
mechanical classificatory rules apply. How are they ranked then? In
their case the village authority sees to the observance of adat law
by consultation, by taking relevant circumstances into account, by
reaching some compromise if necessary (Camarecq, 1861 :266).
[248] In southem Sumatra and elsewhere, succession to titles, title
names, and dignities is complicated by the system of altemating
between different branches or residential wards of the same family,
the adat bergilir or balegar. The system works only because the joint
heads of the dusun or village federation keep an eye on things to see
that the rules are fairly applied; should the govemment step in to cut
knots instead of patiently unravelling them, the result is likely to be
quiet resistance bom of a sense of injustice.
If one knows what to look for in the literature, numerous examples
can be found of the headman's influence on the conclusion of mar-
riages, among heathens as well as among Hindus, Moslems, and
Christians (-). Marriage is nearly always a matter of village interest.
Headmen concemed with these matters are not resolving disputes
or performing the function of a Dutch civil registrar; they join in
the discussions, holding forth on adat law, and seeking a way out
whenever its application is uncertain or in jeopardy. lt is the kind
of intervention which parents in westem families permit themselves
in their children's affairs. The time and attention which they have
to give is reflected in the monetary gifts they receive in matters of
marriage, gifts which are often much larger if they concem the more
complicated marriages between persons from different villages. The
family wedding feast, primarily a propitiation and notification to the
ancestors, is likewise an expression of co-operation by the family
224 Van Vollenhoven on Indonesian Adat Law

authorities, and it provides publicity as weil (-). The village head-

man in Tapanuli, who supervises the exogamy regulations and other
adat rules (-), and who 'gives his blessing' to the marriage, is doing
fundamentally the same as the village headman or village moslem
officiant in Java, who is said merely to provide necessary information
and to conduct the parties to the senior officiant (naib). Rules like
those prescribing that a younger sister should not marry before the
elder, or stating that certain marriages are to be preferred, are also
subject to the guidance and supervision of these adat heads.
Possibly even more striking is their guidance and assistance in
[249] cases of the dissolution of marriage, a matter which is not left
to the parties concerned and often does not lend itself to a judicial
verdict in our sense, but calls instead for calm consideration and a
reasonable compromise. In such cases the assistance of village and
family heads is indispensable, and in return for it they rightly receive
some income. From New Guinea comes the story of a woman who
sought to end her marriage by absconding in a boat, but the super-
visory family (village) authorities refused to co-operate, and the woman
was brought back to her husband, amid screams and cries, to every-
one's amusement (Van der Sande, 1907:270).
Despite government justice, which recognizes only judicial divorce,
the dissolution of many marriages (and the consequent distribution of
goods and children) in the Minahasa outside the larger centres is said
to be still arranged under the guidance of the village authorities, and
is only afterwards referred to the landraad court for confirmation.
In Borneo, the Philippines, among the Toraja, in Ternate and on Buru
the procedure is the same.6 On Buru, the head of the tribe finally
cleaves a rattan stick held by the two parties; the westerner is inclined
to see this as bis (judicial or administrative) 'decree of divorce' (-),
whereas he bad simply acted as an adviser and mediator. That some
of this kind of mediation has lingered on even in cases of non-judicial
dissolution of Moslem marriages in Java (by talak, kuluk, or rapak),
has already been surmised on page 177; and that the Christian
Javanese have wisely not abandoned it is apparent from their adat
regulations, which show that the Christian parish authorities very
often play the part of the village authorities elsewhere. (-) Fully
[250] comparable with this mediation by Indonesian headmen is the
mediation of Chinese headmen or lineage heads in the conclusion of
marriages or their dissolution, though the latter has, again, been mis-
taken for a judicial process.
VIII The Maintenance and Development of Indonesian Adat Law 225

Adat rules relating to guardianship and other caretaking of un-

attached minors are rare and usually poorly developed; it is through
the mediation and guidance of the headmen that these legal lacunae
are often filled (pp. 164-5).
That the essentially accommodating Indonesian law of succession
would not be able to function properly without this kind of author-
itative mediation [becomes evident from its application in Java and
many other places]. lt is precisely because of the Iack of unified
deceaseds' estates, of fixed inheritance shares, of strict rules regarding
the payment of debts by the individual heirs, that such guidance
becomes indispensable. If one takes instead the intervention of a
Moslem religious judge the result will be something quite different:
a decision based on fixed (kitab) rules. (-)
In matters of land law this involvement of adat heads often coin-
cides with their exercise of the right of avail of their jural community,
and in various cases (including land transactions) it is open to dispute
in which capacity they act. But regardless of this question their
guidance is evident. The division of family land (i.e. land of a jural
community) is not left to those entitled to share in it; the village
supervises and takes a hand in the matter. (The role of supervision
and mediation, without compulsion or judicial action, which the
agrarian regulations of 1915 and 1918 assigned to the civil administra-
tion in the West Coast of Sumatra and in Manado, appears to be
conceived on adat law principles.) What we call perpetual servitudes
can largely be dispensed with, thanks to supervision by these author-
ities. Even the weighty substance of the adat law relating to water
[251] is based on a few main rules (-), which nevertheless operate
satisfactorily in practice by virtue of the headmen's guidance.
This steady attention by local Ieaders to the proper observance of
adat - whether they are ordinary headmen or special functionaries
like the 'custodian of the land' in the east of the archipelago, or
village elders in central Java - means that these men are a mental
store of information on adat law as it really is. We shall return to
this when dealing with the administration of justice.
We should, however, be underrating and misunderstanding the
significance of the helpful role of these aüthorities if we saw it mainly
as a means of proving facts in the event of some future dispute. It is
the discovery of Holleman (1918) and Logemann (1924) that Indo-
nesian legal commerce knows a form of participation in transactions
which can be broadly defined as 'giving warranty' for what is taking
226 Van Vollenhoven on Indonesian Adat Law

place (tanggung, tanggel), the essence being that a person makes it

known that he sees no objection in adat law to the transaction con-
cemed, and that he will not contest it at any future date. This form
of 'testifying' - something between being a party to a transaction and
being a witness to it in our law- can as a matter of course be clone by
ordinary villagers, by private individuals, but it is especially the par-
ticipation in legal transactions of adat authorities, of village headmen
and the like, which corresponds most faithfully to this definition.
As mentioned earlier, the large amount of work involved by this
constant involvement in all manner of transactions in everyday life
finds compensation in, and is reflected by, various adat revenues (-).
Europeans are readily inclined to frown upon these, as though adat
heads ought to live on air and should regard all their work as the
natural consequence of an honorary office; or that it is their in-
come that really matters to these Ieaders, their activities being of
[252] secondary importance. Presumably this view is not unaffected
by the discovery of cases of profiteering (no more absent among
Indonesians than among Europeans), but also by the nai:ve idea that
the Indonesian's material needs are so few that he ought to be innocent
of all desire to make a profit.
While the above has adequately shown that this attested form of
law observance occupies a broad area between voluntary observance
on the one hand and compulsion by means of court or police action
on the other, it has yet to be speit out why it is indispensable to adat
law. This has to do with the numerous adat precepts which do
not constitute commands or prohibitions, but recommendations or
expressions of disapproval. Commands or prohibitions can be main-
tained by a judge's order or by force; the preference for, or disapproval
of, certain behaviour on the other hand finds its natural support in
the influence exerted by adat Ieaders, who by their supervision and
co-operation help to steer things in the desired direction. Although,
in westem eyes, such approbation and dissuasion are likely to be
looked upon as belonging to the field of morality and ethics, they do
form an integral part of adat law; this fact, and the attested observance
of adat precepts, are interconnected.
Now, in Indonesia, the mediatory efforts by adat heads - the
topic with which we are here concemed - are a hundred times more
frequent (and therefore so much more important) than the dispensation
of justice in the strict sense of the resolution of disputes by judicial
authorities whose word is law. These mediatory activities considerably
VIII The Maintenance and Development of Indonesian Adat Law 227

reduce the number of lawsuits without infringing the field of formal

justice. When a sale of land has been concluded or abandoned with
the headmen's assistance; when a marriage has been sealed or
prevented under their watchful eyes, or postponed through their
action, formal Iitigation as to the rights or wrongs of the matter always
remains possible. Nothing of all this is reflected in our judicial system
and the phrasing of our legal regulations (-). Our regulations do not
prevent this attested form of law observance, but they have no notion
of it and do nothing to draw the attention of the courts to it.
[253] The mediatory function of the headmen, which westemers
like to describe as 'patriarchal' (-), is repeatedly, indeed usually,
exercised in consultation with and in the presence of their sub-
ordinates: so with the Acehnese village authority, the Minangkabau
village and family authority, the Minahasa family council. Participation
by subordinate folk lends a strongly democratic character to this type
of adat observance- democratic, that is, in the oriental sense (Haga,
1924:27-35). If instead the district officer is called in - a not
infrequent occurrence and a tribute to the confidence he has succeeded
in inspiring - there is nevertheless a serious risk, not only that the
maintenance of the adat will become more a matter of passing judg-
ments and deciding issues than of the traditional way of discussing and
straightening things out, but also, and more particularly, that this
homely consultation with fellow members of the community will fall
into disuse.
The attested observance of adat law springs from motives not unlike
those behind its voluntary observance: preference for and compliance
with what one is accustomed to; awe of the ancestors (everywhere in
the archipelago the primary task of the adat heads is to see that the
wishes of the ancestors are observed and to act as their earthly
representatives); self-interest in the undisturbed current of affairs; and
belief in what has been inculcated from infancy. Accordingly, the
factors which may, in the case of voluntary observance, result in
modifications of the law, make themselves feit here as weil. Adat
Ieaders cannot close their eyes to changes that have come about
imperceptibly; and the very nature of their mediatory role offers them
an excellent opportunity gradually to accommodate new needs and
desires. Thus they allow the adat of the forefathers to undergo constant
change, sometimes even without being conscious of doing so, though
on Bali the awareness of change is now and then evidenced by the
fear which people have of opening and consulting the text of an ancient
228 Van Vollenhoven on Indonesian Adat Law

village regulation (Liefrinck, 1980:338). The danger lies particularly

there where it is in the interest of the adat heads to advocate con-
servation, while the interests of the people instead demand change;
consultation with subordinates must then provide the solution.
[254] Especially in such matters as the fictitious interpretations of
adat rules and of kinship relations (above, p. 218-20) the adat heads
can do much by lending or withholding their CO-operation. But the
assistance they render can never, except in abnormal, temporary
circumstances, acquire the form of an adat prescribed by themselves.
Adat Settlements arrived at by missionaries or government officials
in consultation with 'the chief', but not truly accepted by the people,
deserve neither the support of the courts (being no more living adat
law than they are binding statute law) nor the support of the adat
Ieaders. Fortunately, this is often recognized in respect of adat regu-
lations made by and for Christian Indonesians and in government
consultations on adat reform (-).
Whether the intervention by headmen sketched above will result
in a veto or be confined to advice and information, depends mainly
on the respect they command either generally because of their office
or on account of their personal qualities. lt is the same as with us in
Holland regarding the influence a father has on his adult income-
earning son, or a burgomaster on his municipal council, or a minister
on parliament: it varies with situation, time, and person. At one time
the princely government of Ternate tainted the headmen's authority on
Ambon, causing it tobe coercive and tyrannical (Holleman, 1923:56);
and also the Dutch administration can mar it by insisting constantly
and in every field of activity that the only essential virtues are
authority, coercion and efficiency.
The mediatory role of adat headmen is of great significance also
because Indonesian justice functions in exactly the same way. lt, too,
weighs one interest against the other, and allows the weightiest to
prevail; it, too, seeks to draw from broadly formulated guidelines the
most appropriate solutions; it, too, takes preferred and disapproved
ways of conduct into account. The distinction between attested law
observance and its maintenance by judicial action is that the second
involves a dispute which the court setdes by making an enforceable
judgment without direct consultation with the community concerned.
But this is much less than the difference between the free system of
[255] justice through mediation in the Indonesian sense, and a more
mechanical system in the western sense.
VIII The Maintenance and Developrnent of Indonesian Adat Law 229

Since influential groups of foreigners from east and west came to

Indonesia, historical developments have sometimes caused the legal
guidance discussed above to pass to others than adat Ieaders: to
Indonesian and European civil servants, missionaries, Indonesian
clergy, or even to Europeans who have won the people's confidence
and acquired a say in their affairs by virtue of personal qualities or
prolonged contact with them.
[Some] agrarian regulations have provided the example of govem-
ment officers being charged with giving this kind of guidance; some-
times even responsibilities under the right of avail over land have
passed willy-nilly into the hands of these officers.
(--)
Everything said so far about the guided observance of the autochtho-
nous components of adat law with the support of adat heads applies
likewise to the field of religious law. Those responsible for the main-
tenance of Hindu law, Moslem law, Christian law (-) act only to a
very small degree in a judicial capacity. Their influence is exerted main-
ly by means of supervision, exhortation, guidance, consultation, but as
regards certain parts of the religious Iaw it is nonetheless most effective.
I t need hardly be said that this non-mechanical way of maintaining
adat Iaw is also reflected in the fact that it does not prevent the
occurrence of some anomalies; or in other words, its maintenance
depends on the reasonableness of its application. Anomalies may be
due to unforeseen circumstances, but in most cases they result from
cunning attempts to use, or abuse, the law. When a person abuses
[256] his right to collect forest produce within his village domain
by gathering excessive amounts for the benefit of Chinese or European
entrepreneurs, when someone makes use of his preferential right to
land in order to keep others out while failing to cultivate the land
himself, or when a Minahasan family abuses its apar right to land in
the same way, the adat heads could put a stop to this.7 lt was their
mediatory leadership which prevented the village right of avail being
a constant headache to the princes on Bali, just as it is also responsible
for the fact that the same right of the village, clan, or autonomaus
chiefdom never appears to obstruct the government in its plans. lt is
especially here that the value lies of regulations prescribing that these
heads must be given 'prior notice' of certain legal transactions, for
even though their approval may not then be required, they are given
an opportunity to guard against conflicting or unreasonable applications
of adat precepts.
230 Van Vollenhoven on Indonesian Adat Law

If the matter discussed in this section is looked at from the view-

point of the adat heads their function appears to be threefold: first,
help with the proper observance of the adat (usually as the representa-
tives of the forefathers); secondly, to be living adat repositories by
virtue of what they witness, experience, and hand down to their sons
(-); and finally, to dispense justice on the basis of adat law. The
most important of these, though, is the first, and not the judicial
function which is to be discussed next.

3. The Role of the Courts *

a) The scope of the judicial junction
[257] Although there may weil be a few communities and situations
in Indonesia where adat govemment and adat justice are still in-
divisibly merged, almost everywhere the administration of justice is
a separate function with a distinctive name. The Indonesian judicial
process is, then, the binding determination or 'resolution' of a dispute
(including a criminal offence). One must guard right from the outset
against imputing the existence of all the elements of modern westem
judicature into this Indonesian system.
What is the scope of this manner of dispute resolution? lt can
include any matter resulting from disputes in which right and wrong
are involved. lts province is therefore not only questions of mine and
thine, descent and marriage, legal capacity, inheritance, and impermis-
sible conduct (both torts and punishable offences); but also questions
of rank and hereditary title (galar), the right to wear a particular
costume, the boundaries of a Dayak tribat area, the omission of a
compulsory contribution to a feast, failure to render due assistance,
disregard of adat precepts, or the ritual cleansing of persans made

* [This section comprises an editorial selection from the long chapter 'The
Maintenance and Development of Adat Law by the Courts' (pp. 257-402,
Vol. II of Het Adatrecht). In the present edition, sub-sections a, c and g
contain the bulk of the original parts 1-3 and 12; sub-sections d-f are no
more than a 'mosaic' of passages culled from parts 4, 5 and 9 of the original.
In this chapter, written at a crucial time (1926) in the political battle for the
recognition of adat law, Van Vollenhoven addressed hirnself perhaps more
directly and exhaustively than in most other parts of his Adatrecht to the
(colonial) judicial and legislative authorities to whom the preservation and
development of adat law would be mainly entrusted. Much of his vast and
critical survey of current practices, views and statutory provisions, however
necessary and useful at that time, has since lost its relevance, and therefore
has been omitted here. - Ed.]
VIII The Maintenance and Development of Indonesian Adat Law 231

impure by crime. A judge installed by our government, who would

consider such matters to be 'not judicable' because they fall outside
the field of civil or criminal law, would not be understood. In the
[258] Lampung area, the adat judges (penyimbang), though deposed
by us, to this day continue to deal with such legal disputes, because
our government judges - as was believed - are not (permitted to
be) interested in these matters, or refuse to recognize them as legal
disputes. On the other hand, even the Indonesian judge will have to
turn away claimants if they merely complain about legally non-
consequential acts: a betrothal or promise not made binding in law,
or any other issue not concerning questions of right or wrong.
What has been said does not imply that every lndonesian judge
must be considered competent to hear every legal issue. But we may
take it that the grounds on which responsibilities were divided between
various judicial forums differed from those on which full jurisdiction
has been allotted to courts in the system we introduced. How old the
indigenous institution is of special judges for agrarian disputes (above,
p. 160) cannot yet be ascertained.
Two foreign importations must have been of some consequence
for the scope of indigenous village justice: the distinct jurisdictions
of foreign rulers and of Moslem religious judges. But they were of
little importance, and the old indigenous system continued to function
besides and sometimes parallel with them. Both importations certainly
contributed to a clearer distinction in the popular mind between justice
and administration, and to introducing or promoting the idea of judges
having competence not in all cases but in special categories only. The
princely administration of justice in Java moved in this direction,
having, for example, appropriated to itself all disputes involving its
functionaries or serious offences, and leaving the rest to lower state
officials, or to village justice (-).
It is, however, not enough to have judges; it is above all necessary
that those seeking justice actually go to them. One significant fact
conceming the judicial enforcement of adat law should therefore be
noted straight away: in almost all parts of Indonesia the people are
reputed to be addicted to litigation. This phenomenon is singularly
lacking in present-day Java, and therefore it was rather late before it
[259] was generally recognized. But from the territories outside Java,
and from the Philippines and Madagascar, the addiction was con-
firmed over and over again. In Palembang people would crawl under
the floor of the raised rapat chamber [courtroom] and take part in
232 Van Vollenhoven on lndonesian Adat Law

the proceedings by shouting up through the floor; in some Batak

regions an excitable audience would throng araund judicial activities;
on Ambon and in numerous other regions law suits occupy the centre
of public attention (Haga, 1924:35-6). This fondness for Iitigation
(perkara-Iove), the involvement in which is regarded not as a worry
and affliction, but the absence of which rather as a sad deprivation,
has not yet been ethnologically or psychologically analyzed. Probably
the monotony of traditional life, stimulated only by the excitement
of war, Iitigation and games, contributes to it, and among various
population groups law-suits fulfil a function similar to that of parlia-
mentary or church politics, or evoke the emotions aroused by trade
union activities, concerts, theatres, cinemas or travel in our society.
What we know of mediaeval western Europe makes this sup-
position likely; though it remains a mystery why Java should be an
exception.
For the judicial maintenance of adat law, however, it is not sufficient
to know that there are courts charged with maintaining the substantive
adat law, and that the people go to them. It is also necessary to know
that such courts are permitted to apply adat law in full, and in a
manner consonant with adat judicial practice. This often still happens
in truly Indonesian courts (i.e. before truly indigenous judges, and
besides these, in the district and regency courts of Java and Madura);
but it is seldom the case with the government, district and regency
courts outside Java and Madura, or with the higher Indonesian
tribunals.
With an application of adat law 'in full' we have particularly in
mind the conclusive treatment of actionable wrongs. The task of an
Indonesian judge is to put an end to a dispute, to settle it, to make it
a thing of the past, to restore 'coolness'. If our regulations force a
court to deal with actionable wrongs only in part, and to refer the
rest to either a criminal or a civil session (e.g. because we are not yet
familiar with the practice of allowing a civil claim in a criminal
action), or if they do not provide for ritually cleansing sacrifices, then
[260] the matter is not 'finished'. Stillless is it 'finished' if the judge,
acting in terms of our judicial regulations, resolves an issue between
plaintiff and defendant, but not between others involved in it: for
instance, a third party who sold something to which he had no right,
or who should be compensated, and so on. [On the other hand], adat
law is not averse to summary processes which actually settle issues,
but our judicial rules often prescribe that witnesses and other people
VIII The Maintenance and Development of lndonesian Adat Law 233

involved must nevertheless first be properly summoned to court (see

Ter Haar; 1919:48ff, 1921: 158ff).
(--)

b) Bringing a law suit

[261] The survey of Indonesian adat law in the earlier part of this book
repeatedly illustrated how judicial processes - civil as weil as criminal
according to our classification - are started by the litigants binding
themselves to a judge and the judge to them. The traditional model
of a trial sketched for us before or araund 1860 by a Minangkabau
author dramatizes this procedure and underlines its significance. In
the opening scene of this play, which takes place in Minangkabau
before the officiating 'speakers' or intermedianes (manti), the first
question they put to the litigants is: 'Will ye put your case in the
hands of the judge, whether ye shall be discharged or be burdened
with this claim (adakah engkau suka memulangkan kepada hakim,
baik kehilang atau ketimbul piutang engkau itu)?' This is followed
[262] by: 'If yea, then ye must render a tando suko' (in this play,
the dagger of each contestant; in practice often some other object
which they would also find it difficult to do without, such as their
tobacco box). In the second scene, performed before the court itself
(i.e. the joint panghulu andiko to whom the 'speakers' have handed
over both the contesting parties and their tokens), the parties are
enjoined to hand over taze ameh or tahil emas to the judges, which
secures the return of their tando suko. This they do, and the judges
reciprocate with a counter-gift, the 'returning gold' (ameh suruik),
which is given to the 'speakers', and from them a portion to the
parties. The court explains to each: 'As thou receivest this returning
gold from the hands of the speakers, so receive [ thereby] from our
hands the acceptance (ijab) of thine offer, known as "the horse's head
turned", the consequences of which are: "spiked in the ground,
notched in the wood, no wavering, no going back, no leaping up nor
rolling down".' The parties accept, each taking his share of the reci-
procal gift from the hands of the intermediaries. All involved in the
process are now bound to one another by earnest tokens - parties
and intermedianes to submit to the court's authority, judges to adju-
dicate fairly - and the business of the court begins.S
Outside Minangkabau one finds similar material 'binders' at the
start of a trial, with all sorts of local variations. In Aceh, an action
for debt started with the offer of processual pledges (hak ganceng or
234 Van Vollenhoven on Indonesian Adat Law

'knotting' money, a sum equivalent to the amount in dispute, or

objects to that value) by both parties, and their acceptance by the
judge. This signifies 'that the suitor hands hirnself as a dead body
into the hands of the judge' (Snouck Hurgronje, 1906, I: 116). Among
the Gayo, sipöt or sipöt yakin was a 'token or guarantee ... that both
parties would accept the court's decision (Snouck Hurgronje, 1903:
115f.). In South Sumatra the processual pledge was found particularly
in land disputes, and was called tanda serah or mas angus (the ulasan
or uang walesan in cases of debt was a percentage of the amount in
dispute); in the Lampung area it seems to be called wang penying-
singan. In cases of debt, people in the Malay area spoke of uang meja
[263] or 'table money'; in South Bomeo, danda alih is known (surely
not only in actionable wrongs?); in the Minahasa region, pengasil or
alas kadera; in the Balinese princely courts there was the toh, though
in village courts the processual pledge did not - or does no langer -
exist. Finally, in Java, there was pakenceng ('tie-up' money), besides
gantungan ('floating' money), which seems to correspond with walesan
in other places and with gugatan in the village courts in Cirebon. All
this was so much part of indigenous custom that it penetrated
even the religious courts of Indonesia: the priestly courts on Bali
recognized a 'binder' unknown in Hindu law; and in the Islamic
courts in Java 'table money' was customary although Moslem law
forbade it.9
However widespread and entrenched the feature itself may be, its
explanation is beset with snags and pitfalls. Europeans are inclined
to explain the material hinder given by the disputants either as a
guarantee that the court's decision will be adhered to or as a deposit
'pour assurer le paiement des frais de justice' (Tarde, 1912:34). The
former is in that case a cautio iudicatum solvi (not to be confused
with the subsequently misnamed deposit for the trial costs), and hence
would be refunded once the judgment bad been fulfilled. This accords
with what is reported, for example, for Aceh and Gayoland, where
the object or money is given back (redeemed) when the judgment
has been obeyed - which is the reason why we must call it a
processual pledge, not a processual gift. However, three considerations
militate against generalizing this explanation and accepting it as the
crux of the matter. First, virtually nowhere is there any mention of
judges being involved in the execution of their judgments. Though
in practice a judgment is often complied with at the end of the trial
[264] while the court is still sitting, the task of the adat judges
VIII The Maintenance and Development of Indonesian Adat Law 235

appears to be complete as soon as judgment is pronounced. A prior

deposit as security for an execution which is not the concern of the
court, does not fit in with this. Moreover, it is nowhere said that
defiance of a judgment results in forfeiture of the processual pledge.
In the second place, it is not clear why the cautio should have to
come, as it does, from both parties and not, as with the Romans, from
the defendant. In the third place, this conception does not explain
why the deposit sometimes varies according as to whether the case
is about land, family matters, or debt; why it must so often be
redeemed by an actual payment; and why such payment must also be
made by the successful Iitigant.
The difficulties might disappear if one assumed that the processual
pledge contains not only the promise to obey the judge, but also to
remunerate him for his trouble. That is to say, whenever the amount
in dispute and the adat scale of charges are known beforehand, the
material hinder would from the outset operate as payment of the
judges, or as a processual gijt to meet the trial costs (as it probably
is with the ulasan in Jambi); but if the judge's remuneration cannot
be known in advance the only way would be to give a processual
pledge, to be exchanged in due course for the actual amount due.
A difficulty, however, arises even here, because the information avail-
able, although largely compatible with this interpretation, nonetheless
deviates erratically from it in some respects. For example, processual
pledges appear sometimes to be limited to one kind of action, some-
times to another. What is certain, however, is that giving material
binders at the beginning of a court process was both widespread and
truly Indonesian, and that it certainly cannot be explained - an all
too easy western rationalization - as a product of judicial greed or
as an attempt at bribery,10 even though there are areas and instances
where, so it would appear, the judge's ears or mouth must be 'opened'
with money (Mallinckrodt, 1925:293). Nor can it be interpreted as
[265] nothing but a security to comply with the judgment. Willinck
(1909:864, 866) calls the payment and acceptance of processual dues
a contract, which may not be the most fortunate name for it but
accurately reflects the aspect of reciprocal obligation.
Further serious complications are that there are sometimes two
processual payments (i.e. a Iitigation pledge and a security for court
fees) and sometimes three (i.e. a Iitigation pledge, a deposit on the
disputed claim, and a security for court fees); that the three payments
are often tied up together; and that their names sometimes add to
236 Van Vollenhoven on lndonesian Adat Law

the confusion (see Mallinckrodt, 1925:293,298, 301, on the payment

of gadai in South Borneo).
What has remained of these processual pledges in present-day Indo-
nesia? Here we must distinguish between the indigenous and the
government administration of justice. *
In the indigenous system - despite the considerable changes in it
by our administration - processual pledges are still regularly used,
and even mentioned in some of our judicial regulations. (-) Of not
all of them is their legal function clear, but many of them must be
something different from a pre-paid judge's remuneration. As regards
the indigenous administration of justice our government therefore
seems to have been of the opinion that, since litigation payments are
Indonesian and do not obstruct the course of justice, they deserve to
be preserved.
There has been a quite different approach in the government
administration of justice: the institution was first mutilated, then
wiped out because of its deformity. The process began with Raffles
[in Java], and was completed by Der Kinderen [in Sumatra].
** [Raffles decreed in 1814, that in civil cases, including appeals,
a 'fee' which went to the court officials was to be paid before the
hearing; in addition, such 'being the custom of the country', the loser
was to be levied ten per cent of the judgment award. The term 'fee'
obscured the indigenous conception of a litigation pledge, but the
ten per cent levy was more contentious. In 1819, the Dutch Com-
missioners-General abolished the levy, but kept the old litigation pledge
in the form Raffles had given it (with the payment for appeals
becoming a 'fine'). Then, in 1825, the levy was reinstituted as a
'general and percentage tax ... to defray the costs of civil proceedings',
only to be scrapped again in Java in 1870; the litigation fines were
abolished in 1848.
The reorganization of the judiciary in Sumatra leaves a 'much more
painful impression of ignorance and premature action' (11:267). In
the preparatory work of the 1860s for Sumatra's West Coast- then
partly Batak, partly Minangkabau territory - there is no mention of
Batak processual payments; the initial tando suko pledges of the
Minangkabau seem to be unknown; and the subsequent ta'ie ameh
deposits (above) are 'bribery and extortion'. The government saw no
* [For the distinction between the two systems see Introduction, p. LXIIff.]
** [The following bracketed section is an editorial summary of Vol. II,
pp. 266-9.]
VIII The Maintenance and Development of Indonesian Adat Law 237

objection to introducing the 1825 Javanese percentage tax into Sumatra,

but preferred the monies to be paid first into general revenue instead
of straight into the judges' pockets. The judicial regulations (1874)
designed by Der Kinderen, Government Commissioner for Legal
Affairs, abolished not only talii ameh but all other adat processual
dues as 'incompatible with a proper administration of justice', the
headmen being granted instead a 'fair compensation for their loss' out
of the new Iitigation tax. But the reorganization of the judiciary meant
that the compensation benefited the members of the newly created
landraad and rapat courts rather than those who would have been
entitled to the traditional dues. Another problern with the Iitigation
tax, which was due before the hearing, is that it was not refunded
if the parties, by settling amicably, relieved the court from having to
decide their case. In short, these Iitigation payments, though supposed
to take the place of traditional adat dues, did so in a manner
'undreamed of in adat law' (11:268).
The 1874 Sumatra regulations were withdrawn in 1914, when
members of the landraad and rapat courts were awarded attendance
fees.]
What has been said refers only to the bringing of an action before
a court. Before things went so far people would often resort to self-
help against an opponent or his kindred, in an attempt to persuade
him to reflect, or even to admit his liability (-).

c) Conciliatory nature of the judicial process

[270] The adjudication of a dispute can be considered successful
only when the judgment is in harmony both with the wishes of those
seeking justice and the court's opinion on their conduct. No Iitigant
can always have his way - to expect that would be madness - but
he must feel that the case has been properly disposed of and that
that is also the opinion of those around him.
It is significant that the Indonesian judicial process operates on
the same principle that underlies the attested form of law observance
with the assistance of the adat heads, which was discussed in the
previous section. They spring from the same source; they differ not
in method, but in the way they are started and concluded. The
Indonesian feels at home in both, and for the same reasons, for the
adat law courts, too, when faced with uncertainties of fact or law,
know how to settle, reconcile, accommodate, give and take; they, too,
do not proceed mechanically, but weigh up one interest against
238 Van Vollenhoven on Indonesian Adat Law

another. A modern western judiciary - at least on the European

continent and in matters of private and criminal law - works with
defined rules of evidence, and for the ascertainment of the law operates
with written codes, commentaries and judicial interpretations. lt must,
therefore, turn down an insufficiently supported claim or insufficiently
proven indictment. The adat judge, too, if facts and law are certain,
will consider it his duty to apply the law strictly (-), but where such
certainty is lacking he will resolve the conflict of interests by a com-
promise. In a western process, the burden of proof falls almost entirely
upon the plaintiff or complainant; the traditional Indonesian process
seeks to divide this burden between the parties as a means of partly
satisfying both. What is characteristic about all this is, first, that the
objective law itself deliberately leaves many points open for the court
to mediate; secondly, that sometimes the court is allowed and even
expected to mediate, even when there is no uncertainty about facts or
law. The following sections will have to make clear that, in spite
of this, adat justice is no more arbitrary, or casual, or playing le bon
juge, than the justice of an international court of arbitration, an inter-
national claims commission, or the International Court of Justice at
the Hague.
(1) How does an indigenous court deal with uncertainties of fact?
Among both oriental and western peoples, and in criminal as weil
as civil cases, questions of fact predominate. lt has been estimated
that in civil cases between Europeans eighty per cent of the issues
are questions of fact. A revision or improvement of the substantive
law can of course not change this; what can do so is the creation of
formal requirements and facilities for recording facts, for example,
[272] notarial deeds, population registers, and so on.
When a Javanese legal record mentions the 'transfer' (ngedol) of
a property, but leaves uncertain what form of ngedol is meant, the
Indonesian judge obviously must first try to ascertain the most likely
interpretation from the evidence of the parties, witnesses and prevailing
circumstances (cf. AB IV:607-9); if that fails he will have to find a
decision which both parties regard as reasonable. In Bengkulu, when
a betrothal contract has been broken and it cannot be established
who is at fault, the judgment may be that the bridegroom does not
forfeit his betrothal gift (antaran) and that the bride must pay back
only its actual value instead of the customary double amount (see
AB VI:414). In Central Java, if a dispute arises between the owner
of a field and the tenant holding it in return for a loan, or over
VIII The Maintenance and Development of Indonesian Adat Law 239

whether a residential plot has been sold or let, and the facts are
uncertain, it may happen either that the existing situation is continued
upon the payment of a few guilders by the defendant, or that the
original situation is restored upon the plaintiff's payment of a few
extra guilders (AB XII:39-40). These are some examples of the kind
of judicial mediation which Hartzfeld (1915:48) regarded as 'the very
essence of nature and reality' - a point of view hotly debated by the
Dutch Society of Jurists in 1916, but found to be gaining ground by
the editors of the Rechtsgeleerd Magazijn (35, 1916:620). Of course,
not every mediatory judgment in case of uncertainty of facts deserves
praise; but at least the court cannot be said to have evaded the
problern by dismissing the claim as not proven. (-)
(2) How does an indigenous court deal with uncertainties of law?
[273] In Madura, a village functionary gave up his field for a year
to another person, but his dismissed predecessor, pretending that the
sawah was still his field, handed it over to a fourth party. When the
court recognized the first two to be in the right, did the fourth person
have no right whatever to the crop cultivated by him in the meantime?
Adat law leaves the question open, having no specific rule about
crops grown in good faith; but the judge satisfied the second and
fourth parties by assigning to each one-half of the harvest (AB VIII:
271-2). In Bondowoso, a wet rice field feil dry after a few years, and
an enterprising Madurese put it back in order and cultivated it. Only
when the crop stood ripening in the field, did the owner come forward
to claim his right. As adat law leaves the question of the right to
such a crop open, having no special rules about produce grown, or
claims delayed, in bad faith, the court apportioned half the harvest
to each party (idem). Similarly, countless complications with share-
cropping are deliberately left open in adat law so that the court may
settle each case on its merits. lt is the same with complications
concerning family property in polygamaus marriages (-); or with the
question of whether accretions by siltage to residential plots fall under
the adat-ownership of individual holders or under the village right of
avail; or with the crop rights of the lessee of an official field if during
the lease the field is transferred to a new office-holder (AB XIX: 260-1;
XIV:79).
The characteristic feature of these solutions is not only that the
judges, because adat law remains 'silent' on such points, are expected
to resort to compromise, instead of supplementing the objective law,
[274] or of importing foreign rules as the old section 75(6) of the
240 Van Vollenhoven on Indonesian Adat Law

1854 Regeringsreglement suggested. This kind of judicial action is

both legitimate and obvious, because adat law constantly assumes that
courts will find their way in such uncertainties. The most significant
thing is that adat law, as a rule restricting itself to main principles,
does not regard conciliation as a last resort, but expects it to be a
more satisfactory way of resolving disputes than the mechanical
application of detailed prescriptions which, though designed for certain
cases, would not work in others. And the result? Whereas examples
of mediatory judgments impelled by legal uncertainty in Dutch law
or European law in the Indies can be recalled only with difficulty
(Hartzfeld, 1915:20), in adat law, because of the very nature of it,
such judgments are numerous. In the choice between certainty and
flexibility adat law has always convincingly opted for the latter. The
position is similar to that of the problems of the international law
of contract, which half a century ago people thought could and should
be solved by the acceptance of some more or less refined statutory
rules: it is now recognized that they can be overcome only by
regulating that which can be foreseen, and entrusting the rest to the
judges. In a similar manner adat law frequently leaves to the court's
discretion such matters as the dissolution of marriage by mutual con-
sent, applications of the right of first option, irrigation rights, and
obligations comparable to our servitudes, thus making it possible that,
within the framewerk of recognized principles, the law will be 'found'
in each concrete case: that is, justice in 'adat style' (Hekmeijer,
1909:1312).
(3) The most significant of all, however, is the third situation in
[275] which adat courts mediate - and are expected to do so -
even when both facts and law are perfectly clear: when a decision
according to the letter of the law would be illogical, or out of keeping
with the popular sense of justice. This practice seems most unwestern.
Meijers (1916:2) defined a mediatory judgment as one which permits
compromise only 'on grounds of doubt regarding the facts of the case
or the law to be applied' (Themis, 1916:2), but Hartzfeld failed in
his attempts (1915:16f., 19, 27, 31) to find western examples of this.
Yet this is fully in accord with the attested observance of adat law
discussed before, and with the constitution of that law itself.
One night in Bengkulu a complex of shops was burned down; as
the culprit could not be found, the local marga community had to
make good the darnage (AB V:124-5). In the same area, some boots
were stolen from a traveller; the guilty party could not be traced,
VIII The Maintenance and Development of Indonesian Adat Law 241

and the marga was held liable. In Palembang, a European's horse

was stolen, and the marga held liable for similar reasons; but although
the value of the beast was firmly established, the court reduced the
claim to the amount which in former times represented the adat rate
in the case of manslaughter. Without this correction the judgment
would have been considered both unreasonable and objectionable (cf.
AB V:253, for the Jambi area).
In Jambi, a family comprising two branches had long ago surren-
dered part of its land in retum for a loan of money. Later, the first
branch redeemed the land at its own expense, because the second
branch refused to join in. When the first branch proceeded to plant
rice on this land the second branch, still having a right in it, made
trouble, and several people were killed or wounded. The matter was
taken to the local rapat court. Facts and law were clear: according
to adat law, the land should have been redeemed by the owner, the
family as a whole. Nevertheless, it never entered the judges' heads
to declare the redemption illegal, and to leave it at that. They made
[276] the second branch pay half the redemption sum to the first,
and divided the land itself between the two (AB V:304-5).
AMinahasan family, likewise comprising two branches, had become
the adat-owner of two plots of sawah land by inheritance. The first
branch moved away, whereupon the second brauch (actually some
individual members of it) sold both pieces of land. Branch one,
retuming twenty years later and finding the pieces sold, turned to
the judicial authority at the time, the district administration. The facts
were clear, the alienation was obviously illegal. The court had the
power to redress the illegality in whatever way it deemed best, provided
the aggrieved family (as a whole, as a legal personality) was duly
compensated. The court, however, found a mediatory solution, in
which the plots were presumed to have been separately apportioned
at the time of inheritance; the alienated first parcel was construed
as having been the property of branch two, which allowed the sale
of it to stand; the alienated second plot was taken to be the property
of branch one, and its sale was therefore voided (the buyer to be
compensated by the illicit sellers?). For this judgment of 1882, see
AB III:148, 151. (-)
[277] These examples have a wider significance than might at
first be thought. When the facts and the objective law are certain, one
might think that only in pathological cases would courts resort to
conciliation, mediation, flexibility. But the adat rules themselves rather
242 Van Vollenhoven on Indonesian Adat Law

suggest the possibility of judicial mediation whenever necessary for

the ultimate aim of adat justice: peace. The Minahasan adoption
contract subsumes the right to inherit, and is permissible even if the
adopter has children of his own. But if the latter feel seriously injured,
and can satisfy the court, it can withhold judicial recognition of the
lawfully arranged adoption in order to keep the peace and to 'cool
down' the situation (cf. Carpentier Alting, 1902, 1:190). Here the
similarity between attested law observance and the judicial main-
tenance of law is particularly clear, in that although specific rules
relating to abusive, unreasonable or absurd applications of the law
may be lacking, it is a natural part of a judge's task to prevent such
practices.
(-)
Contineutal European jurists would of course have no objection to this
kind of intervention by the court, provided it is explicitly authorized
by statute law; but adat law implicitly assumes such freedom to be
part of its constitution. A whole range of provisions of which the legal
consequences are speit out in Justinian's and the Napoleonic codes, for
instance, acting in good or bad faith, being in mora or not, acquiring
rights by prescription or succeeding under general title, can be done
[278] without in adat law because its judges are assumed to know
what is right in concrete cases. A similar contrast could be drawn
between the French criminal law immediately after the Revolution,
which sought to turn judges into mechanical 'mouthpieces of the law'
in order to prevent arbitrariness, and the Netherlands Indies Criminal
Code of 1915, which, within defined limits, allows public prosecutor
and court to handle matters according to their discretion.
The consequences flowing from the adat conception of a judge's
task are important. A demonstration of these consequences should
prove the validity of our general contention. To avoid misunder-
standing, we must first reiterate that Indonesian adat judges will in
hundreds of cases apply the law strictly and without thinking of
mediation, once the facts are proved. To ascribe a conciliatory nature
to their jurisdiction is no more than to say that, if the facts or the
law, or both, give cause for it they are free to apportion fault - or
merit - between the parties; not that they invariably, or usually,
do so.
The first consequence is then that, in a frame of justice permitting
courts to mediate, there is no room for legal actions with strictly
defined objectives. What the court is asked to give - what in attested
VIII The Maintenance and Development of Indonesian Adat Law 243

law observance people expect from adat heads; or, elsewhere, what
they hope for when appealing to a legislative body - is a legal remedy
according to the wisdom of the authority appealed to: kula nyuwun
pengadilan; kula neda pirukun; minta adil (-). The plaintiff will,
it is true, frequently state that his claim concerns a particular field,
or beast, or sum of money, but this does not have the Roman law
meaning of 'this and none other'. For the court can always, in the
case of an illegal sale, either declare the sale void, or allow it to stand
while finding redress by some other means; or it may give preference
to sale over lease in one conflict situation, but lease over sale in
another (-).
[279] Furthermore, there is in this legal framework no room for
a formal joinder of issue (litis contestatio); such a conception is no
more to be found in Indonesian languages than it is in Dutch. A litis
contestatio, which fixes the terms of a claim when it is submitted to
the court, appears to exist in Indonesia only in some Hindu courts
at Badung on Bali, where, once the claim has been heard by the
'stone image' (watu tumpeng- actually an impartial observer of the
court sessions), it can no Ionger be changed (Korn, 1924:221). Like-
wise, there can be no room here for objections to additional or revised
claims. (- -)
Finally, settlement and arbitration are more akin to this kind of
judicial process than they are to the usual western-style administration
of justice. If the aim of the Indonesian process is not so much to
unravel a juridical tangle, but rather to achieve peace ('coolness')
between the contesting parties, then it is wise that [some statutory
provisions] emphasize the court's duty to seek a settlement when-
ever possible. Often, however, this can only be achieved at an advanced
[280] stage of the process, and it certainly does not absolve the
court from its duty thoroughly to examine points of dispute against
their juridical background. In the practice of landraad courts it seems
that, if a Settlement is reached during the hearing, the preceding part
of the record is simply deleted; in practice, therefore, Settlements are
permitted 'at any stage'.
A settlement is a mediated solution to which both parties are ready
to subscribe, and which merely needs to be confirmed by the court;
a conciliatory judgment becomes necessary if the parties are not
prepared to settle and a judgment exclusively in favour of one of
them seems inappropriate. (-) Moreover in a judicial system pursuing
these ends, the dividing line between formal adjudication and village
244 Van Vollenhoven on Indonesian Adat Law

justice is not a sharp one, and mediation by adat heads and

adjudication being conceptually related, there is hardly any reason to
sustain the cantrast between the judge who wields the iron rod of
the law and the arbiter who decides as a good man in faimess.
At no point, however, does the traditional exercise of justice reveal
the conciliatory, homely character of judicial intervention - and the
need for this - more clearly than where it concems what in Centrat
Java is called 'rukun' [the spirit of give and take] between contracting
parties. The relation between rukun practice and the administration
of justice probably provides a fitting end to our argument.
lt was Holleman in particular (1918:433-9; 1923:159, etc.) who
drew attention to rukun in Java and Ambon. lt amounts to this, that
an Indonesian, when making a contract, avoids exhaustive and
inflexible terms; and that even as regards binding conditions he is
prepared to be tolerant, for instance by allowing deferment of payment.
He makes no exorbitant demands on the other, does not unduly press
him; he will be no Shylock. Even litigants will where possible try to
[281] part as friends - quite unlike the norms in Ihering's Kampf
ums Recht. An Indonesian contract, says Holleman, is more of a
rough draft of the parties' intentions than an agreement covering
all eventualities. The Javanese who contracts in any other way
would resemble a Chinese, Arab or European, and be regarded as
what we call a usurer or profiteer. Naturally, the rukun spirit is
stronger between fellow-villagers, or between compatriots in a
narrow sense, than between Indonesians who regard each other as
strangers.
The question here is not whether this characteristic give-and-take
should be applauded from a commercial and economic point of view;
it is what kind of judicial system corresponds with the rukun spirit,
and into what kind of justice would rukun fit. The answer is beyond
doubt. A judge who is not allowed to conciliate, or who Iooks upon
mediation as a rarity, would despair at such contracts (which are
ninety-nine out of a hundred); but one who recognizes the freedom
to mediate as an outstanding feature of adat law, would feel quite
at home with them.
All that has been said applies to Indonesian judicial practice in
the traditional style; it in no way refers to Moslem courts, which
apply the strictly defined rules of Islamic law (-). Yet even among
religious judges, the Indonesian spirit would sometimes appear to
prevail over Islamic doctrine; at least there are reports of decisions
VIII The Maintenance and Development of Indonesian Adat Law 245

by a kali at Macassar in 1849, which are of a distinctly conciliatory,

non-Moslem character (-). Nothing seems to be known about media-
tory justice among the Chinese in Borneo. When a government court
must apply western law to Indonesians - e.g. the 1861 Marriage
Regulations for Christian Indonesians in the Moluccas - the question
does not arise; but if the judge has to apply Indonesian private adat
[282] law, his efforts can be effective only if he mediates whenever
adat law implies or requires it. None of the existing statutory provisions
seems to be against it, but it would be a step in the right direction
if the legislature were to give the courts a clear sign of approval. 'The
atmosphere natural to custom', it was said at a conference at Simla
in 1915, 'is the atmosphere of the tribal court ... ; when we remove
custom into the atmosphere of the regular courts we incur responsibility
for seeing that it does not suffer from the change of air'. (-)
In recent years the western judiciary - in fact, a senior government
court at the capital Batavia - had to clarify its position on this point
in connexion with urban land leases (AB XIX:452-5; cf. ITR 1916:
118-27, 1918:58-64, 1923:291-302). First, could a person who had
rented another's land in order to live there in a dwelling of his own
construction, demand that the court disallow the termination of the
lease by the landowner on the grounds of the tenant's irreproachable
conduct and because there was no need to end the lease (-)? Second,
if the termination nonetheless went through, should not the land-
owner by way of consolation compensate the tenant for the costs of
moving house? The expert consulted by the court and, with him, the
court itself, accepted that this form of rukun was indeed customary
between contracting parties, but that it formed no part of 'the law',
and hence could not be recorded in a legal judgment.
But if our analysis is right, the conciliatory nature of a court's
intervention in adat cases means that it can give this form of satis-
faction lawfully, and is expected to do so as often as it finds good
[283] reasons for doing so.
Mediation, settlement, departure from the objective law, salving
injured feelings - do such things (it might be asked) require a
professional legal training? The answer is twofold: first, adat law
does not presume its judges to be formally trained men; and secondly,
the understanding of Indonesian legal relationships, of their results
and remedies is in no way less demanding than the art of healing,
the skill of government, or the work of European courts of law (-).
For those who have an eye for this type of justice, there is much to
246 Van Vollenhoven on Indonesian Adat Law

be learned from adat decisions in which the ordinary jurisprudent

can find 'nothing juridical'.
(-)
d) The ascertainment of facts
How does a court which has to apply adat law establish the facts
of a oase? The question may best be answered by beginning with
some negative observations. The first is that special procedures
for what we distinguish as civil, criminal or administrative matters
have not been found in adat law. (-) The second concerns the
[284] absence of a burden of proof in the Dutch technical sense
that, as regards each fact relevant to the dispute, one of the parties
(including the public prosecutor) is required to prove it, while the
other need merely deny it or remain silent, and that the court must
consider the point not proven if the former party fails. (-) The
rational core of this principle - i.e. that the party alleging something
usually has the best means to supply the facts, and that the court
therefore expects him to do so - may be recognized generally in
adat law as much as in international law; but this is not the same
as having an explicitly formulated rule. (-)
[285] A third point of difference concerns the court's attitude to
the acceptance of truth. lt is passive in our courts, where facts agreed
upon by the parties in a civil action are judicially assumed to be true.
[286] Neither the judges of government native courts, however, nor
those of indigenous courts, are expected to be passive: the mere fact,
therefore that evidence presented by one party is not disputed by the
other is not sufficient for these courts to assume that its truth is 'thus
legally established' (for other views, see ITR 1921:51; 1926:520).
Finally, there is a difference as regards legal presumptions derived
from fact or law. This aspect has been insufficiently investigated, but
there is reason for caution. One repeatedly comes across forms of
conduct which in adat law are actionable wrongs per se, but which
would with us at most give rise to presumptions of some delict or
other. Among these: going about at night in a strange village when
there are no celebrations in progress; sitting armed under another's
dwelling (thus beingable to stab through the floor and sleeping mat);
talking to a woman who is alone at home, etc. On the other hand,
a number of legal presumptions known to us, such as that regarding
the right of the landowner to the crop standing in his field, are
foreign to adat law. Furthermore, if Minangkabau or other maxims
seem to contain legal presumptions, it is questionable whether these
VIII The Maintenance and Development of Indonesian Adat Law 247

should prevail unless the contrary is proved conclusively. Admittedly,

there is - as with the burden of proof, - a rational core in some
westem legal presumptions which can be tumed to advantage by a
judge applying adat law, but he need not feel that his hands are tied
by this. On the other hand, he must accept as presumptive of common
descent the fact that a Minangkabau lies in the burial ground of a
particular family or family branch; as indicative of social rank in
South Sumatra or in Ambon the dress or position a person assumes
at adat festivities; in the Lampung area, the right of a man to coconut
trees he has planted as indicative of his right to that land; or, as
presumptive of culpability for death in South Bomeo, the ascription
of blame by the dying man.ll (-)
[287] As the adat judge is not supposed to be passive in matters
of evidence, it is he who determines the sufficiency of proof. Willinck
(1909:911f.) rightly stresses that the adat judge will never demand
evidence of facts he hirnself knows to be true; the question is how
often this is the case. Nor is evidence required of facts generally
known. Where proof is needed it is up to the judge to elicit it to his
own satisfaction; and to decide whether in the event of uncertainty
he must give a conciliatory judgment. The Balinese Hindu priests
are said to proceed formalistically when acting as judges, but this
sheds no light on the Indonesian way of providing evidence.

lf the means of evidence are ranked according to their weight in

adat law, the scale will be very different from that in westem law.
Confessions, allegations, and denials, where possible supported by
visible signs, rank first and may by themselves be conclusive. Imme-
diately thereafter follows the ordeal, with its important constituent
of the conclusive oath. The testimony of witnesses comes next; and
- understandably in a country of illiterates - written evidence is
at the very end of the scale. Although written official records of facts
may not have been unknown in the adat law of evidence, they did
not play an important role.
This ranking order will become clearer when the various means
[288] of evidence are discussed in turn, but it may be useful first
to explain the importance of the ordeal and the conclusive oath.
Westem readers might well believe that even in oriental trials these
two would only serve as a least resort when all other means had
failed. Such a conclusion would, it seems, be premature, at least for
a number of areas. Even if it were insufficiently established that,
248 Van Vollenhoven on lndonesian Adat Law

for instance among the Germanie peoples of the past, the divine ordeal
was not a means of obtaining evidence, but the trial itself (Lambert,
1903, 1:723-30), an enlightened reader could understand that in a
world believed to be controlled by deities especially interested in the
terrestrial affairs of their descendants, and in which divine favour or
disfavour constitutes the weightiest sanctions in adat law, ordeal
and conclusive oath - with the prospect of an infliction of divine
vengeance - are a rational and understandable means of giving super-
natural powers an opportunity of striking directly at guilty persons,
and one which need not be a last resort at all (-). In many places,
including the central Javanese principalities, the conclusive oath is
still common in the indigenous administration of justice (-).
[289] lt will be useful now to examine the place of each means
of evidence in the adat process (-).
(1) Confession or admission by an accused party, with or without
visible tokens. However important this means of evidence, little is
reported about its significance and effect (Willinck, 1909:912-3;
Ter Haar, 1921:162; Korn, 1924:254-5).
[290] Adat judges saw no objection to confessions under torture
(Wilken, 1912, 1:484) - how long, indeed, were these not used in
Europe?
Confessions or admissions can even be made, without speech or
writing, by a stereotyped act accepted by adat law - e.g. the non-
judicial recognition of an illigitimate child in Minahasa [by the
presentation of a symbolic gift to the newly-born child or its mother].
I t is not generally true that confessions or admissions end the
process; their purpose may in fact be to elicit a formal judgment.
That voluntary admissions of guilt might be insufficient would pro-
bably be inconceivable to juridically untrained Indonesians. (-)
(2) Allegations, whether or not supported by tokens. Visible tokens
(tanda, bendö, sande agong, bukti, etc.) have special probative value.
For allegations by litigants (and witnesses?) to be valid evidence in
Indonesian adat law, they are often required to be accompanied by
some tangible or visible proof, such as the body of the slain man, a
blood-stained knife, a piece of clothing, the stolen chicken, a woman's
pregnancy, the bond-sum of the transaction, the betrothal pledge, a
tenant's annual recognition token, the tresspassing cow with rice ears
caught in her halter, or the duck with traces of forbidden food sticking
to her neck. (- -)
(3) Denials, substantiated by argument and sometimes by physical
VIII The Maintenance and Development of Indonesian Adat Law 249

[291] tokens, will nearly always require corroboration. It is con-

ceivable, however, that in special circumstances, such as the non-
appearance of the plaintiff or the manifest Iack of any foundation for
his claim, the adat court will declare itself satisfied with a weil
reasoned denial.
(4) Ordeals and conclusive oaths. The very word ordeal arouses
immediately the prejudice of contemporary readers; we have already
touched upon the Indonesian conception of it.
Ordeals used to provide a ready stick with which to beat the
traditional administration of justice (about which virtually nothing
was known), as if they were a dominating everyday occurrence in adat
justice (-). They were abolished, usually explicitly by ordinance or
regional instruction, in the [supervised] indigenous courts (Mieremet,
1919:101; cf. Geurtjens, 1921:204-5), and presumably never tolerated
in govemment courts - though one can never be certain about past
times or remote areas.
[292] The utter revulsion of a westem administration from the
genuine ordeal - e.g. the notorious trials of werewolves and witches
among the Toraja - need not be feit with regard to the conclusive
oath, though to the Indonesians it is, with its supernatural sanctions,
just another form of divine ordeal. If the court's own knowledge of
the facts is inadequate and a confession is not forthcoming, or if an
allegation or denial fails to convince, one of the parties must submit
to taking the oath in support of his statement, on pain of suffering
divine retribution against him or his relatives should he have Iied.
Willinck maintains (1909:934, 937, 940f.) that among Minangkabau
only a defendant or accused can be made to take the oath, which
thus becomes essentially a cleansing oath, but this does not apply to
the Karo-Batak or Balinese. The main thing is (as Marsden already
pointed out in his History of Sumatra, 2nd ed. 1784) that an oath-
taker is so convinced of the righteousness of his cause as to be fear-
less of divine retribution. (- -)
[293] Government regulations for the indigenous administration of
justice have usually no provisions relating to conclusive oaths; the
district and regency courts in Java and Madura are likewise left free
whether to use them. The cleansing oath is still, and effectively,
employed in Javanese villages (Holleman, 1919: 179; for Aceh, see
p. 74, above). (- -)
(5) Evidence of witnesses. The preference for spoken over written
[294] evidence is natural in a country of illiterates, and for the
250 Van Vollenhoven on Indonesian Adat Law

Moslems among them is perhaps reinforced by the explicit prejudice

of Islamic law against written evidence.
[295] Witnesses are of two kinds: chance witnesses of whatever
kind of permissible or impermissible act of conduct having legal con-
sequences; and the prescribed witnesses of legal transactions.
The basic principle of chance evidence is the same as everywhere
eise in the world: the witness must say what he knows and how he
came to know it. Obviously it is an advantage with this kind of
evidence that in the small circle of an Indonesian village everyone
knows everything; a judge who shifts his inquiry to the village or
place where the dispute originated soon has the benefit of the people's
familiarity with the facts (-). A second advantage of oral evidence
in adat law matters is the exceptional memory of illiterate Indonesians
- and Chinese? - which has so often been attested to. A major
disadvantage, however, is the untruthfulness of many incidental wit-
nesses, whether due to fear of the party against whom they would
testify, or to some other reason. This serious problern (-) cannot be
solved by swearing in witnesses in Islamic or other non-indigenous
fashion. This is to no avail, and merely frightens them; and there
are enough remedies known to them to counteract such oaths -
assuming the latter are believed to have any power at all (-).
A much-feared adat oath, administered after the testimony, might
be more effective, although against this, too, objections may be
raised. (- -)
[297] The evidence of prescribed witnesses works differently. It
has been noted earlier that the prescribed adat witness, whether a
headman or ordinary villager, probably serves a different purpose
from that of formally required witnesses in our law. His presence is
demanded not as formality or for giving evidence; it is to support
the transaction by testifying that he holds it to accord with adat law,
and that he will not dispute it at any future time. Adat law repeatedly
prescribes whose presence and attestation is required. In land matters
it is those with rights to neighbouring fields; in family matters it is
the family or other kin group, whose presence then usually coincides
with the holding of a sacrificial meal in honour of the ancestors.
In village matters - in the very broad sense in which this was under-
stood in Aceh and Centrat Java - it is the village authorities; with
the establishment or affirmation of village boundaries in Bali, the
villagers themselves. All this does not seem to exclude the possibility
that in most cases people can either select their own witnesses, or
VIII The Maintenance and Development of Indonesian Adat Law 251

add some of their choice to those prescribed - the point needs to be

examined more widely and thoroughly. Also with prescribed witnesses
the accuracy and retentiveness of their memories can be relied on,
the more so because their testimony may have to be delegated [to a
son, or to a successor in office]. Such delegation has presented
problems to westem lawyers, who are apt to think here of hearsay
evidence. But it is something quite different: the faithful reproduction
[298] of the evidence of a direct witness, which is as solemn and
impressive as the statement deliberately made by a dying illiterate to
his illiterate death-bed attendants. (- -)
(6) Written evidence. Indigenous legal documents, declarations,
[301] records, rank low on the scale of evidence, far beneath con-
fessions, conclusive oaths and the evidence of witnesses; they are less
frequently used, but they do exist, and have done so for a long time.
(- -) Their form and content may not be immediately clear to a
westemer. They are usually neither bilateral declarations nor written
arguments, but unilateral Statements signed by the seller, pledgor,
[302] lessor, etc., and intended to be placed in the hands of the
buyer, pledge-taker, lessee. To a westemer looking for contracts or
receipts in writing they create a topsy turvy impression: a person
who hands over property would seem more likely to be wanting some
proof of this than the recipient; and the owner who permits another
the use of his land for a lengthy time would seem to be in greater
need of retaining some power - in a mystical sense - over the
tenant than the other way round. Holleman's ingenious explanation
(1924:470, 480f.) may well be true: the purpose of the document is
to stress the fact that the natural tie between owner and land is
being replaced by the artificial tie between tenant and land; signed
by the owner, and to be kept by the tenant, the document in a sense
embodies the owner hirnself and his controlling power.
The paper is usually countersigned by 'witnesses' (saksi - a term
which, for reasons explained before, should here rather be translated
as 'collaborator'). The mystical power ascribed to such declarations
may be enhanced by the use of some pompaus phraseology, at the
cost of the clarity of their contents. (-) Apart from such embellish-
ments, the cunning abuse of legal terms ('sale' instead of 'lease';
'ownership' instead of 'tenancy') may further obscure the real meaning
of the document (-).
[303] Although village authorities and other adat heads may have
been connected with it, such written evidence cannot be regarded
252 Van Vollenhoven on lndonesian Adat Law

as an officially attested deed in our sense, the 'warranty' of a village

headman simply not being comparable to a public official's attestation
in our Iaw. [Nor should the wording of it be taken too literally],
for as Holleman has written, 'The idea that a judge would have to
interpret the document according to the Ietter of the text does not
enter an ordinary villager's mind'. (-) lt would therefore be no
luxury to make an appropriate provision for this indigenous form of
written evidence in our judicial regulations for adat cases (-).
[304] What then is the probative value of such documents in adat
law? Exactly the same as that accorded by a European lawbook to
incidental communications (letters, telegrams, notes, tallies), or in
other words: whatever value a judge in good conscience thinks he
can attach to it, from slight presumption to conclusive proof.
(--)
e) The ascertainment of law
[327] There remains the question of how a present-day court in
Indonesia (whether an indigenous, government, or religious court)
finds the applicable adat Iaw. I t should be remernbered that adat law
frequently directs the court to 'find' the appropriate law for particular
cases within a frame of broad adat prescriptions to effect a settlement
if necessary.
How would a truly indigenous court arrive at the applicable law?
I t may consist of a single man, or group of men, so thoroughly versed
in the legal norms at every Ievel within its area of jurisdiction, that
it needs to inquire no further; this will be true particularly in areas
where the judges are socially not far removed from those who seek
their justice. But the opposite does also exist, and may even become
commonplace: there are numerous examples of government courts in
Java whose Indonesian members from the aristocratic class are ignorant
about usages and colloquial terms at the village Ievel; moreover, even
headmen versed in adat law may Iack insight into intricate questions
(Holleman, 1923:85f.). In such cases, what should courts do to find
the law?
(--)
[328] Several questions arise here which are similar to those pertaining
to the ascertainment of some European customary law or of foreign
law in disputes with international dimensions. May the court require
the parties to prove the Iaw? To what extent may it leave proof to
them if they have volunteered to provide it? How far is the court left
free to pursue its own initiative in the matter? In all these questions
VIII The Maintenance and Development of Indonesian Adat Law 253

it is necessary to penetrate to the essence of the problern through its

formal wrappings.
(1) lnstructing the parties. Does the court surrender its responsibility
as soon as it invites an Indonesian or Chinese Iitigant to present such
factual evidence (through witnesses or otherwise) as would prove the
existence or probable existence of an alleged customary law? By inter-
locutory order the superior court at Batavia in 1915 instructed the
local govemment court at Menggala in southem Sumatra to invite
the appellant to produce witnesses in support of his allegation on adat
law (ITR, 1915:602, 606); in 1918, the superior court at Surabaya
instructed the regional govemment court at Tombang to have an im-
portant point of adat law clarified at a public session (AB XIX:462f.).
The formulation of the orders may not have been without danger
but their purpose was unexceptionable, for in both cases it implied
an independent inquiry by the lower court. Things start to go wrong
when judicial regulations relating to proof of a subjective right are
applied without more ado to the ascertainment and consequent
application of the objective law, for the facts proved by a plaintiff
do not provide the coherence and comprehensiveness which a court
would need to deduce the existence of an objective rule of law.
(--)
[330] As regards objective adat law, there is no statute expressly
requiring, or permitting, litigants to fumish proof of it; as for the
Indonesian or Chinese law of ancient times it would be unthink-
able to impose such a burden, as the effect would be to throw the
application of adat law into confusion (-). Information submitted
for the court's consideration is still desirable (-), and can even be
solicited by it; but litigants are not required to establish what is the
law, for that is and remains the court's duty.
(--)
(2) Accepting the parties' assistance. May judges accept an offer by
the parties to fumish proof of the objective adat law, and then rely
upon such proof? (-) In 1903, a superior court at Batavia rightly
held that the local court at Kalianda was free not to accept a counsel's
testimony on women's inheritance rights in the Lampung districts,
and that, if it disbelieved the purport of the evidence of the parties'
witnesses, it could determine the customary law according to its own
[332] insight and knowledge. (-) This does not mean that a court
may lightly dismiss a weil reasoned statement on adat law, and
substitute for it an oracular pronouncement of its own. In a Minang-
 254 Van Vollenhoven on Indonesian Adat Law

kabau dispute heard before the rapat court at Maninjau in 1890, the
issue was whether land and movables left by a man whose branch
of the family bad died with him, could devolve upon another family
branch not of the same village. The rapat ruled that this was possible,
and its decision was, among other considerations, 'based on the
testimony of the witnesses heard by it'. The ruling was quashed by
the superior court at Padang in 1892, as 'not ... in accordance with
the trend of development among the Malay population of Sumatra's
West Coast, and therefore no Ionger valid adat'. The court also
dismissed the evidence of the witnesses on the ground that 'adat law
is not established by witnesses, but is a matter of jus curia novit'.
The government adviser, Snouck Hurgronje, denounced the Padang
court's judgment as arbitrary and as a serious threat to adat law, but
both the Director of the Department of Justice and the Supreme Court
at Batavia agreed (1893) with the ruling. The two views are not
[333] mutually incompatible: even though a court, being responsible
for ascertaining the objective law, is neither bound by the evidence
of witnesses nor obliged to reveal its own sources of knowledge, it
cannot depart from sound advice except for good reason; and the
proposition that adat is not proved by witnesses would hold good
only if 'not' were to be replaced by 'not conclusively'. But it would
be desirable for the second controversy to be solved by statutory
regulation.
[The courts can also initiate inquiry into the objective adat law
by calling expert witnesses, as has repeatedly happened in Chinese
law suits, and - though perhaps not often enough - with the
ascertainment of Indonesian adat law. Numerous examples are on
record- see Van Vollenhoven, 1931:333-36.]
(--)
j) The Judgment and its Execution
[378] Judgments of traditional courts often bad to be made unani-
mously; how, and to what extent, they have changed to majority
decisions needs further research (-).
The deliberations were quite often public; whether this was the
general rule, occurring also with Balinese priestly tribunals and
Javanese princely courts for instance, likewise requires further in-
vestigation.
The process is started by a complaint or a petition for legal redress,
and the aim of the action is to bring 'peace' - the judgment reflecting
this aim (above, pp. 232, 243f.) implies, among other things, that the
VIII The Maintenance and Development of Indonesian Adat Law 255

matter is brought to an end in every respect between all parties

involved.
Once it has accepted the processual pledges, it is the duty of the
court to finalize the matter; failure to do so would amount to refusal
to do justice. The consequences of refusal to hear a case never seem
[379] to have been recorded. In spite of this, it appears that in Java
and elsewhere adat judges can refuse to deal with matters which they
consider to be stale or contrived - a 'dirty' case (ranän kotor) as
the Karobatak say, or 'prescribed' through time (kedaluarsa) in
Javanese (-).
The generat terms for finding against the petitioner or claimant
seem to be tolak or mengalahkan, without a distinction being made
between no competence, not judicable, dismissal, acquittal, etc. (-)
There is no reason to assume that purely declaratory judgments are
unknown or not permitted. On the contrary, in questions conceming
uncertain boundaries, or privileged adat costumes, or caste status in
Bali, and so on, one can easily imagine the need for such jugdments.
(--)
[380] Traditional judgments are almost always unwritten, even in
the village courts of Bali. (-)
Except for a Toraja rule allegedly forbidding the re-opening of a
[381] decided case, there appears to be no explicit adat rule about
the binding nature of a decision once it is given (-). Usually, courts
assume this to be so, if only because it seems reasonable; but should
it transpire to be unreasonable in a given case, they seem to be free
to act otherwise without undue formality. (-)
Voluntary or forcible compliance with the judgment is apparently
often not the concem of an adat court, whose task is accomplished
when it has pronounced judgment (though one gets a different im-
pression in respect of certain cases in Aceh and Bali). This fact, too,
leaves its imprint on the adat administration of justice, and its effect
deserves further investigation (-). But even where the execution of
judgments is not, or only rarely, considered to be a function of public
authority, the fear of divine retribution, or of being found guilty of
Iack of respect for headmen, or of risking banishment, acts as sanction
(-). Today, petitioners in both indigenous and govemment courtsoften
aim at some form of distress (AB XVIII:48), and a successful claimant
can usually obtain the right to distrain upon the judgment debtor's
goods and occasionally even his person (e.g. putting him in the stocks).
(--)
 256 Van Vollenhoven on Indonesian Adat Law

4. The binding character of adat law

[397] There are three grounds an which all that has been discussed
so far might still leave room for doubting that adat law is truly law.
The first would be the belief of some that customary law must be
based an immemodal custom - did not the Romans require inveterata
consuetudo? - and that, since adat law apparently can also be new
law - it cannot, in the latter case, claim recognition an the grounds
of being 'customary'. This point has been discussed before (pp. 218ff.).
[The people of the village who voluntarily observe the ancestral adat
law, their adat heads who attest the observance of it and the courts
which dispense justice in the spirit of adat law, they all see - as
was said of Punjabi law at the Simla conference in 1915 - how
adat law grows under their own hands. Also Westenberg in his study
an adat justice in Karoland (1914) repeatedly stresses that adat law
is a living, growing thing, and that adat judgments create new law.] *
Moreover, section 31 of the Indies' new Constitution of 1925, - by
speaking of 'the legal rules which the people observe in relation to
their religion and usages' - gives such a narrow interpretation as
little support as da the various regional judicial regulations; and
the fact that the old provisions of 1848 and 1855 pointed to the
preservation of adat law by no means implied that no new law could
be evolved in the familiar manner of all customary law.
Secondly, it might be argued that the mediatory nature of the adat
process indicates the absence of objective rules of law. In a circular
of July, 1919, an traditional land rights, the Resident Commissioner
of Manado wrote: 'These so-called rights mean really nothing but
the absence of rules of law. As no rules are fixed, everyone does as
he thinks fit, and considers that his right.' In similar vein it is often
alleged that an adat law which needs to be found or shaped by the
court in virtually every case cannot, for this reason, be a pre-existing
operative law.
Thirdly, and most importantly, one could argue that only a small
part of adat law is regularly dealt with by the courts, that we have
only an impedect knowledge of what this part involves, that custom
without judicial sanction is not customary law, and that it is therefore
in only a small minority of cases that we can be certain of dealing
with a binding adat law.

* [The aforegoing passage is from page 389, not included in the present
selection - Ed.]
 VIII The Maintenance and Development of Indonesian Adat Law 257

[398] It would serve no useful purpose here to review the theories

of customary law of German and other scholars: Swirez, Savigny,
Puchta, Maine, Zittelmann, Lambert, Duguit, Krabbe, Kranenburg,
Kelsen and so many others. All their theories appear to have been
dialectically deduced or logically derived from arbitrary premises; not
one is founded on the observation of reality. (-)
Weshall not join this chorus. Weshall instead assess the importance
of the question, and then see what reality has to teach us.
The question becomes relevant mainly where subordinate legislative
bodies are instructed by a superior authority to respect adat law. As
far as we know, no court required to apply adat law and aware that
the people under its jurisdiction have established rules of behaviour
which they consider binding and proper and which they expect head-
men and other authorities to maintain, has ever asked: 'It may well
be custom or usage or popular morality, but is it law?' But when the
agrarian section 62 of the Regeringsreglement (later section 51 of
[399] the new Constitution of 1925) adjured the local authorities
to make no inroads on the 'indigenous (land) rights of the people',
the common counter-argument was that certain areas quite possibly had
ancient agrarian practices, customs and rules - generously tolerated
by our administration - but the people should prove that these could
rightly be regarded as customary law. If this 'proof' had tobe fumished
from the recorded judgments of the last fifty or a hundred years, then
the result would be tantamount to rejecting the claim. (-)
Nobody denies that Indonesians regard the violation of certain
rules and institutions as contrary to the will of the ancestors and
hence disadvantageaus and dangerous, and that they therefore demand
that their own authorities punish any breaches. Now if a rule is so
deeply ingrained that no one would dream of breaking it, with the
result that nobody remembers it to have been judicially affirmed,
would it therefore not be adat law? lf rules about the payment of
bridewealth or the dissolution of marriage, for example, are so well
protected by the authoritative guidance of headmen and elders - much
more important here than adjudication in the narrow sense - that
no judicial action to obtain their observance can be remembered,
would they therefore fail to qualify as adat law? Whenever a true
adat judge has before him a case, and nobody remembers a like case
to have been decided, is he to turn the petitioner away on the pretext
that, though a custom may have been violated, there has been no
breach of law? - as though every question of law did not have to
 258 Van Vollenhoven on Indonesian Adat Law

be raised for the first time! If a government court in Java has to

decide an issue of inheritance in which Islamic law competes with
indigenous, would it not suffice for the court to find out how such
conflicts were conceived and resolved year in and year out by the
people themselves in their villages? Or if this court had to unravel
a tangle of locally adapted Chinese law and south-Chinese law, might
it not ascertain how the Chinese community concerned deals with
such matters and how this relates to its social structure and the rest
of its way of life?
[ 400] When Struycken (1914: 17) wrote that the more realistic
wind blowing through legal science was 'driving away the ultra-
legalism of the 19th Century', he could have added that it is not
only the dogmatic faith in statute law that is shattered when reality
is revealed, but also an exclusive belief in case law. In expressing his
aversion to all the vagueness peddled in the name of a sovereign
'legal consciousness' he was fully justified in writing that, 'so far
as social life contributes independently to the formation of law, it is
seldom if ever in formulating specific legal rules, but rather by
forming concrete legal relationships, contracts, practices, institutions
and the like, from which experts must still elicit legal rules through
a process of juridical abstraction' (ibid:22). This is no different to
the conclusion to which Bryce (1901, 1:333-5) had come on the
relationship of living folk-law to governmental power in mediaeval
Iceland.

The right way to discover what is adat law is by meticulous and

extensive enquiry into how, in a given area, matters of consequence
for the legal order are usually done or tolerated as being normal and
pleasing to the ancestors; and how, in cases of deviation, fellow
villagers or adat heads, or occasionally the courts, react [see Annex A].
What enables us to ascertain (-) the fabric of a people's customary
law is the interplay between one normal custom and other customary
practices on the one hand, and between customary practice and dis-
ruptive deviation on the other. Even approbation and disapprobation,
if inextricably associated with precept and prohibition in popular
thinking and conduct, are law and not merely morality; for in adat
law there is nothing vague about approval and disapproval. An adat
judge examines this interplay as a matter of course, and, with the
mediatory and judicially creative powers at his disposal, determines
what could be considered normal peaceful usage acceptable to the
VIII The Maintenance and Development of Indonesian Adat Law 259

ancestors, or disruptive deviance which he could not possibly ignore.

To dismiss land rights of long standing as nothing more than tolerated
[ 401] custom, thus equating them with a student's or a commuter's
right to a particular seat in a lecture room or railway compartment,
is to ignore all that Indonesian practice teaches us about the rule
and power of a court of law.
The only thing that can truthfully be said about judicial influence
on the distinction between custom and law is that the courts have
the final word when doubt arises whether a practice is mere usage
or an enforceable right. But however important that may be, it is
quite different from the juristic dogma that customary laws obtain
their validity by judicial recognition, or at least should be ascertainable
from a succession of judicial verdicts.
But although scarce or even erroneous case law will not abrogate
a customary law which is clearly living, no one would doubt the
importance of the support which courts can give (-). And if it is
true that in the big Europeanized cities and among the handfuls of
[ 402] emigres and Christian Indonesians little can be expected from
the voluntary observance of adat law or its attestation by adat heads
- and the same applies to the Straits Settlements - then it follows
that for these areas and people the courts assume greater significance
than they do elsewhere. For elsewhere, courts are only one - and
not the most important - of the supports of adat law, and even their
defects need not dislocate it; but here, there is the danger that adat
law will stand or fall with them.
 CHAPTER IX

EPILOGUE *
[September 1931]

Spera prudenter
[878] It cannot be stressed too strongly that, whatever measures
might be devised to promote the well-being of adat law, its future
depends on its own usefulness, capacity for development and innate
resilience. The fate of adat law does not lie in the hands of policy
makers at Buitenzorg ** or The Hague, nor with the practitioners and
scholars whose hearts have been won for the cause of adat law, but
with the Indonesians in their villages.
The problern cannot be solved by codification, or replacement, or
unification, or partial retention of adat law, nor by such revision or
publication of it as jurisprudents or policy makers see fit to make,
but only by the people's own will to maintain, expand and rejuvenate
their law.
Should the authorities decide to maintain adat law, and yet it
withered, no decree would save it; should they decide to reform or
replace adat law, and yet it retained its youthful vigour in village,
field and market place, no court could restrain it. I t was in this vein
that Snouck Hurgronje (1900:223-4) and Vergouwen (1930:73)
wamed that, to an Indonesian, reforms are devoid of soul and life if
he has had no hand in them. Besides, what westem president of an
oriental court, what westem draftsman of adat legislation, would not
realize the precariousness of his efforts to invent new oriental law?
The old private law of Holland and West Friesland would have
fared a good deal worse in competition with the law of ancient Rome
[879] had not Grotius in 1631 summarized and handed down this
Dutch adat law in a clear language and lucid system. The old cus-
tomary public and private law of Britain might have faced odds too

* [Original title: 'Adat law the concem of the people'.]

** [Seat of the East Indies Government; now Bogor.]
Epilogue 261

heavy for it in the whirlpool of late eighteenth century rationalism

had not Blackstone's gift for language and orderly arrangement in his
Commentaries (1765-9) brought this law harne to the educated classes
at the right time, captivating their interest and inspiring their Iove.
And was it not a copy of Blackstone which opened young Abraham
Lincoln's eyes and heart to the attractiveness of this British adat law?
The question is not whether Anglo-Saxon countries have had no
greater juridical scholar or better legal analyst than Blackstone - he
hirnself quite rightly wrote at the end of his foreward that 'the candid
and judicious reader will make due allowances for the difficulties of a
search so new, so extensive, and so laborious'. With his striking
classification and tasteful style Blackstone rendered an inestimable
service to his country's unwritten law. But this could only have been
accomplished by a son of the land writing in his own language.
To value the adat law of Indonesia as a living thing to be treasured
by the mass of the people - indispensible if it is to be preserved and
further developed - lies beyond the power of a book written by a
Dutchman for Dutch readers. Only a Buginese or Javanese Blackstone,
a Minangkabau or Balinese Grotius, could do this. And might not a
book like that even enhance a national sense of justice, such as
Euripides inspired among the Hellenes?
So far, Asia, North and Central Africa, and Madagascar, have been
allowed to keep the oriental or tropical character of their law. On the
other hand, Europe, North and South America, Australia and New
Zealand have definitely adopted one or other of the western legal
systems. As for the future of tropicallaw in the remaining third part of
the world - Central America, South Africa, South Oceania - one
can speak only with uncertainty and hesitation.
[880] But this at least may be assumed with some confidence:
new times will be distinguished from old not by this or that govern-
ment measure, but by a changed mental attitude of westemers and
western-educated orientals to oriental values - an attitude based no
Ionger on a spurlaus superiority, but on respect.
Annex A

ADAT GUIDE *
(Practical hints on the investigation of adat law)

I. Subject of the investigation

1) The best way to find an adat rule is not to ask the people about
the rule itself, but to observe how they handle certain cases in actual
practice. Therefore, only ask for inforrnation on facts and solutions,
and above all, do not ask about this or that systern.
2) If it appears that sornething is done in different ways, all should be
recorded, even if the people regard one way as right and the others
wrong.
3) If new usages are observed beside traditional custorns, try to
discover the practical usefulness of the forrner and the rnotivations
leading to their adoption, even where they are said to be a degeneration
of the old adat.
4) Just as irnportant as the investigation of adat law that has developed
peacefully and uninterruptedly in indigenous society, is the investi-
gation of adat laws that have originated under abnormal circurnstances
- rnissionary activities, ernigration, dispersal to new settlernents,
interrningling of peoples, etc.
5) In recording the results of the research, a sharp distinction should
be rnade between what has actually been observed and the personal
comrnents - either of the researcher or of the inforrnants - on the
observed facts.
6) If adat law seerns to rnake no provision for a particular point, do
not record this conclusion until you have tested its validity by further
inquiry in which the facts or questions are presented in a different
way, or by rnaking inquiries arnong other people. Report what
questions were asked, how they were put, and frorn whorn the in-
forrnation was obtained.

* [This Guide was first printed and distributed in April 1910; it was also
included in the first Adatrechtbundel (1910) pp. 16-20.]
Annex A 263

7) Be aware that there can be a great difference between adat law as

actually practised and as enunciated in written regulations (undang-
undang, etc.) or in princely edicts.
8) Bear in mind that, though adat proverbs (papatah, etc) are signi-
ficant and therefore worthy of record, they are not to be treated as
articles from a code of adat law. They are, on the contrary, merely
embellishments of adat Iore, and are often obscure, pedantic and
ambiguous embellishments at that.
9) Take care to note whether some aspects of actual adat practices
may or must be regarded as the result of government measures or
regulations.
10) Note the prevalent indigenous terms, as weil as the alternative
use of different but not sharply distinguished terms. Do not be tempted
to construe the nature of a legal relationship merely on the strength
of a certain terminology; 1 and concentrate on the actual manner of
solving disputes rather than on the juridical nature which indigenous
informants impute to such solutions.

I/. Method of investigation

11) Adat research is an art which must be learned with practice:
patience and good humour are essential to it. Of great importance is
the way in which questions are framed. Apart from a knowledge of
the colloquial language and usages of the country, one must have the
ability to converse easily with simple folk and to win their confidence. 2
12) The less obtrusive the inquiry, the better. This applies especially
to areas where investigations of one kind or another have already been
made among the people. 3 Older folk in particular, if encouraged to
do so, will discourse at length on the history of their village or tribe.
These stories often provide cues for eliciting more information about
local customs without appearing to do so.
13) Generally it is best to pursue the point of adat you wish to estab-
lish in an area where European influence has not yet impinged too
much on the indigenous way of life, for example, in a dozen or so
outlying villages, or if the subject lends itself to it, among all the
families in these villages.
14) The research may be facilitated if the knowledge of adat law
gained in another area is used as a guideline, in the sense of checking,
point by point, whether what has been found elsewhere also exists
here.
15) If questioning is necessary, take care never to rely on a single
spokesman or spokeswoman (women are often repositories of old
concepts and stories), but always test the opinions of one informant
against those of many others.
264 Van Vollenhoven on Indonesian Adat Law

16) Usually an inquiry will be more effective if people are interviewed

one by one or in small groups of three to five, than by consulting them
in !arger gatherings or meetings (e.g. of a village as a whole). With
the latter, one must be very careful that a few overbearing characters
do not dominate the others.
17) Where, in an area of manageable proportions, there are relatively
many headmen in a small population (e.g. in the Minahasa), it is less
risky to rely on their information than it is in !arge areas (e.g.
Sumatra's West Coast), or there where relatively few headmen live
rather aloof from the ordinary people (e.g. Java). But headmen, too,
are often not impartial informants: they are likely to have a vested
interest in a particular answer, either because their personal or family
interests are best served by it, or because their own actions and
decisions are thereby presented in the best light. The information by
headmen therefore also needs tobe checked.
18) Wherever possible, approach each question in two or more dif-
ferent ways.
19) If the answer proves to be doubtful after questioning various
people, do not force the issue but accept such uncertainties as have
emerged.4
20) Where the answer to a question is evidently meant to be vague,
accept it as such.5
21) Where inexplicable things crop up in adat law, for which also the
people themselves have no explanation (like the rule in Gayoland that
the youngest son inherits everything), ask yourself whether the rule
is perhaps understandable when it is brought into the context of
other indigenous institutions.
22) Never - as nonetheless so often happens - pretend to know
better than the people themselves if they have with certainty stated
the actual facts of adat law.
23) Never ask a question in a way which enables the person being
interviewed to guess what answer is expected or desired, otherwise
you are likely to receive the desired answer purely out of politeness
or docility.
24) Avoid western concepts and distinctions. If the import of a question
is clearly not understood, ask yourself whether it is perhaps a question
which simply does not fit into the indigenous pattern of ideas, for
example because it is based on premises or distinctions which the
Indonesian would never make or which he would make in a different
way.
25) If the answers are strikingly simple and fitting, be wary.
26) As regards the administration of justice in the Outer Provinces,
in areas where adat law is still flourishing, take note of what they
Annex A 265

regard as adat law: whether it rests on commonly known adat rules,

or on frequently occurring instances, or on previous court judgments
(or amicable settlements), or on still other considerations.

Signed by the Commission for Adat Law of the Royal Institute of

Indonesian Linguistics and Ethnology at the Hague: -
C. Snouck Hurgronje, Chairman.
J. H. Carpentier Alting
J. C. van Eerde
J. J. Meijer
C. van Vollenhoven, Secretary.
and by the Commission for Adat Law of the Batavian Society of Arts
and Seiences at Weltevreden: -
F. A. Liefrinck, Chairman.
I. A. Nederburgh
G. A. J. Hazeu
P. de Roo de la Faille
W. Frijling
S. L. J. van Schaik
W. M. G. Schumann, Secretary.

NOTES
1 Think of the various, sometimes inexact, uses of the word waris ['inherit-
ance']; or of the multiplicity of meanings of the term lilikur ['binding token']
in the Minahasa.
2 Think of the missionaries. Trust was built and confidences invited on
journeys done together with the natives, by sharing privations, by concern at
times of sickness or calamity, by devising means to make harvests succeed,
by showing an interest in everything concerning the children.
3 De Wolff van Westerrode (p. 9 of bis Report on the agricultural credit
survey in the Priangan Regencies, Batavia, Government Printer, 1904),
writes:
'Everyone who comes into daily contact with the villagers in the course of
his business will confirm how difficult it is, even in relation to the most
insignificant topics, to know how to elicit the truth from them. It seems,
indeed, as if the numerous surveys conducted in the last quarter of a century
have made the people suspicious and reticent to such a degree that every
inquiry of an official nature, particularly in connexion with anything directly
or indirectly relating to economic matters, Ieads either to lies or to an
obstinate inability to understand.'
4 Take, for example, the power of the family head (tua'n teranak) in the
Minahasa; here perhaps the uncertainty is due to steadily changing concep-
tions. Or take the question of recovering a deceased's unpaid debts.
5 For example: as to the stage at which children attain contractual capacity;
or the question of incorporating extra-marital children into the family.
Annex B

PUBLICATIONS ON ADAT LAW

BY C. VAN VOLLENHOVEN

A. Het Adatrecht van Nederlandsch-Indie

Vol. I (1918)
Vol. II (1931)
Vol. Ill Opstellen over Adatrecht, 1901-1931 (1933)
(Collected essays on adat law: 1901-31)
Published by E. J. Drill, Leiden.

Table of Contents (translated):

VOLUME ONE page

First Part: Orientation 1
Chapter I: Adat, Adat Law, Native Law. 3
Chapter II: The Elements of Adat Law 14
Chapter Ill: The Scope of Adat Law 39
Chapter IV: The Study of Adat Law 65
Chapter V: Sources of Adat Law 92
1. Indigenous law of the Indonesians 93
2. Folk law of foreign orientals 115
3. Religious elements 120

Second Part: Present state of the Adat Law of the

Netherlands-Indies: Inventory 131
Chapter I: The Adat Law of the Indonesians 133
1. Law areas 133
2. Aceh 148
3. Gayo-, Alas- and Bataklands 226
Annex: Nias 245
4. The Minangkabau area 246
Annex: Mentawai Islands 272
5. South Sumatra 272
Annex: Enggano 287
6. The Malayan area 288
7. Banka and Belitung 307
Annex B 267

page
8. Borneo 310
Annex: The Philippines 325
9. Minahasa 326
Annex: Sangi- and Talaud Islands 351
10. The Gorontalo area 352
11. The Toraja area 353
12. South Celebes 370
13. The Ternate Archipelaga 382
14. The Ambonese Moluccas 393
Annex: The Soutb-Western Islands 422
15. New Guinea 423
16. The Timor area 431
17. Bali and Lombok 455
18. Central and East Java, with Madura 504
19. The Central Javanese Principalities 654
20. West Java 692
Retrospect 754

Reprinted addenda 757

Publishing schedule 765

A. Register of statutory provisions 767

B. Register of Indonesian terms 770
Map of Indonesian Law Areas: Frontispiece
12 Photographs

N.B. Publishing schedule:

pp. 1- 64: Sept. 1906
pp. 65-148: June 1907
pp. 149-228: June 1909
pp. 229-288: Dec. 1911
pp. 289-400: Dec. 1914
pp. 401-504: Jan. 1916
pp. 505-692: Oct. 1917
pp. 693-804: March 1918
(unrevised reprint pp. 1-148: 1912)
pp. 504-654 also separately published as favaansch Adat-
recht in 1912; unrevised reprint of Valurne I in 1925

VOLUME TWO

Second Part Present state of the Adat Law of the

(ctd.) Netherlands-Indies: Inventory
Chapter II: The Adat Law of Foreign Orientals 3
1. Law areas 3
268 Van Vollenhoven on Indonesian Adat Law

page
2. The Chinese in West Borneo (gold districts), the
Riau archipelago, Banka, Belitung and the Malay
Peninsula 14
3. The Chinese in Java, Madura, Straits Settlements,
Sumatra's East Coast (excl. plantations), Tapanuli,
Sumatra's West Coast, District Benkulu, island
Celebes, District Amboina, District Timor 36
4. The Chinese in Aceh, Indragiri, Jambi, Palembang,
Lampung, Borneo (outside gold districts), Philip-
pines, Bali and Lombok 96
5. The Chinese coolies on the east coast of Sumatra 100
6. Arabs 101
7. Indian Asians 115
8. Non-indigenous lndonesians 120
Annex: Migrant groups in the Netherlands-Indies 123
Chapter 111: Religious Elements in the Adat Law 126
1. Pagan characteristics 126
2. Hindu law 130
3. Islamic law 148
4. Christian law 202
Annex: Foreign elements other than religious 228

Third Part: The Maintenance of Adat Law 231

Chapter 1: Voluntary Observance of Adat Law; its natural
growth 233
Chapter II: Attested Observance of Adat Law; its develop-
ment influenced by headmen and others 24 7
Chapter 111: Maintenance and Development of Adat Law by
the Courts 257
1. Scope of the judicial function 257
2. Bringing a law suit 261
3. Mediatory nature of the adat process 270
4. Ascertainment of facts 283
5. The ascertainment of law 326
6. Official instruction of parties 337
7. Official instruction of judges 339
8. Forms of justice 370
9. The judgment and its compliance 378
10. Fictitious and real legal development by the courts 382
11. Supervision of the court's discretion 393
12. The binding character of adat law 397

Fourth Part: The Constitutional Place of Adat Law ill the

Legal System of the Netherlands-Indies 403
Chapter 1: The Problem 405
Annex B 269

page
Chapter II: The Adat Constitutional Law of Indonesians 409
1. Statutory provisions 409
2. Adat constitutional law not subordinate to western
constitutional law; Indonesian versus western con-
ceptions 410
3. Jural communities 415
4. Administration, police, legislation 437
5. State dominium and constitutionallaw 484
6. The administration of justice 498
7. Sanctions; supersessions; relinquishment of adat
constitutional law 510
Chapter 111: Adat Constitutional Law of Foreign Orientals 515
Chapter IV: Conflict of Constitutional Laws 518
Chapter V: The Adat Private Law of Indonesians 520
1. Statutory provisions 520
2. No subordination of the adat private law to western
private law 542
3. Natural persons and artificial persons 545
4. Marriage and family law 553
5. Law of inheritance 575
6. Law of property: classification 579
7. Law of property: immovables 581
8. State dominium and private law 613
9. Law of property: chattels and obligations 627
10. Wrongs 639
11. Sanctions; displacement; relinquishment of adat
private law 640
Chapter VI: Adat Private Law of Foreign Orientals 647
Chapter VII: Conflict of Private Laws 653
Chapter VIII: Adat Administrative Law of Indonesians 668
1. Statutory provisions; Indonesian versus western con-
ceptions 668
2. Compulsory services and levies; other finance laws 669
3. Civil registration services for Indonesians 678
4. Administrative protection of (lndonesian) material
interests 693
5. Administrative protection of (Indonesian) spiritual
interests 702
6. State dominium and administrative law 702
7. Indonesian police laws; military duties 703
8. Judiciallaw for Indonesians 704
9. Indonesian legislation 708
10. Right of public trial; and of protest 708
Chapter IX: Adat Administrative Law of Foreign Orientals 710
Chapter X: Conflict of Administrative Laws 722
Chapter XI: Adat Criminal Law of Indonesians 731
270 Van Vollenhoven on Indonesian Adat Law

page
1. Statutory provisions; subordination to western
criminallaw 731
2. Indonesian versus western conceptions 733
3. Basic principles of the Criminal Code 744
4. Special delicts 752
5. Adat constitutional, private and administrative law
and the Criminal Code 755
6. State dominium and criminal law 757
7. Summary
Chapter XII: Adat Criminal Law of Foreign Orientals 758
Chapter XIII: Conflict of Criminal Laws 760

Fifth Part: History of the Adat Law of the Netherlands-

Indies 761
Chapter I: Historical Jurisprudence and Comparative
Jurisprudence 763
Chapter II: Legal History of the Indonesians 772
Chapter 111: Legal History of the Foreign Orientals 808
Chapter IV: Influence of World Religions on the Historical
Past of Adat Law 809

Sixth Part: The Future of Adat Law 813

Chapter 1: Possible Courses 815
Chapter II: Codification of Adat Law 819
Chapter 111: Replacement of Adat Law 839
Chapter IV: Unification of Law 852
Chapter V: Subsidiary Adat Law 858
Chapter VI: Transitional Law; civil servants' law; phantasy
law 859
Chapter VII: The Recording of Adat Law Practice 868
Chapter VIII: Adat Law the Concem of the People 878
Reprinted addenda 883
Rectification of references 888
Publishing schedule 891
Second register of statutory provisions 893
Second register of Indonesian terms 902
Index Volume I and Volume II 915
Frontispiece: Map of Indonesian law areas
N.B. Publishing schedule:
pp. 1-148: July 1924
pp. 149-260: April 1926
pp. 261-408: Dec. 1926
pp. 409-800: June 1931
pp. 801-932: Sept. 1931
Annex B 271

VOLUME THREE page

'Studie van adatrecht' (The study of adat law),
from: Exacte Rechtswetenschap, inaugurallecture, Leiden, 1901 1
'Nederlandsch-Indisch strafrecht en adatrecht' (Netherlands-
Indies criminal law and adat law), Rechtsgeleerd Magazijn
(RM) (21), 1902 7
'Inlandsch recht en inlandsehe christenen' (Native law and
Indonesian Christians) (a), Nieuwe Rotterdamsche Courant
(NRC) 2/12/1904 14
'Geen juristenrecht voor den inlander' (No lawyers' law for the
Indonesian), De XXe Eeuw, March, 1905 22
'Nieuw strafrecht voor Indie' (New criminallaw for the N.l.),
NRC, 15/11/1905 60
'Rechtshervorming in Indie en adatrecht' (Adat law and legal
reform in the N.l.), Verslagen Indisch Genootschap (VIG)
2/12/1905 65
'Inlandsch recht en inlandsehe Christenen' (Native law and
Indonesian Christians) (b-i) in NRC, 5/1/1906, 12-13/5/1906,
19/6/1906,7/10/1906,5/11/1906,9/11/1906,.20/12/1906,
28/4/1908 70
'Brief van het Bataviaasch Genootschap over adatrecht' (Letter
from the B.G. about adat law), in Adatrechtbundel (AB) I, 1910 118
'De inheemsche rechtspraak in Indie' (The indigenous adminis-
tration of justice in the In dies);
Bijlage/ Annex: Proeve eener ordonnantie (specimen Ordinance),
VIG,27/10/1908 121
'Minister Idenburgen het volksrecht' (Minister I. and customary
law), NRC, 17/11/1908 165
'Een antithese voor Indie' (An antithesis for the Indies), NRC,
24-25/9/1909 169
(With J. H. Carpentier Alting, Ph. Kleintjes & W. A. P. F. L.
Winckel) Vierentwintig ontwerpen over Indisch Recht (Twenty-
four legislative proposals for the Indies legal system), Becherer,
Leiden, 1909 178
'De September-antithese van Professor van den Berg', NRC,
5/11/1909 280
'Inlandsch rechten inlandsehe Christenen' (j), NRC, 1/12/1910 282
'Bevolkingsrechten op den grond in Nederlandsch-Indie' (Land
rights of the indigenous people in the N.l.), NRC, 9/5/1911 287
 272 Van Vollenhoven on Indonesian Adat Law

page
'Inlandsch recht en inlandsehe Christenen' (k), NRC, 19, 23,
24/1/1912 291
'Sprangen in de ontwikkeling van het adatrecht' (spontaneous
advances in the development of adat law, Mededelingen der
Koninklijke Akademie van Wetenschappen (Communications
of the Royal Academy of Sciences) (KA W), 12/2/1912 303
'Inlandsch recht en inlandsehe Christenen' (1-m), NRC, 13, 14,
15/3/1912 313
'De strijd om het adatrecht' (The struggle for adat law), De
Gids, May, 1914 319
'Voorbericht' (Foreword) to Pandecten van het adatrecht
(Pandects of Adat Law). Vol. I, 1914 338
'De Indische rechtshervorming als grote reorganisatie' (Legal
reform in theIndies as a major reorganisation), VIG, 18/1/1915 339
'De novelle op artikelen 75 en 109 Indisch Regeeringsreglement'
(The act amending sections 75 & 109 of the N.l. Constitution),
in Weekblad van het Recht (WR), no. 9820 (1915) 352
Various articles in the Encyclopaedie van N.I., 2nd. ed.
(1917-27) 360
'Thorbecke en adatrecht', from Het onbaatzuchtige in recht en
staat (Selflessness in Law and State), Rector's address, 342nd
anniversary of Leiden University, 9/2/1917 507
'Djambi en Palembang', NRC, 11/5/1917 509
'De Karner en het Departement van Kolonien' (The Lower
House and the Dept. of Colonial Affairs), NRC, 16/10/1917 510
'De afschaffing van de inheemsche rechtspraak in het sultanaat
Jogjakarta' (The abolition of the indigenous administration of
justice in the sultanate Yogyakarta), WR no. 10163 (1917) 513
'Jogjakarta', in NRC, 3/11/1917 516
'The Study of Indonesian Customary Law', lllinois Law Review
XIII (3-4), 1918 517
'Inlandsch rechten inlandsehe Christenen' (n), NRC, 7/5/1918 523
'Nieuw Indisch recht' (New law for the Indies), NRC 8/5/1918 529
'Anti-Rouffaer' (Critical notes on G. P. Rouffaer's Report of
1904 on the agrarian legal position of the indigenous people in
Java and Madura), BKI (74), 1918 531
'Ceilonsch volksrecht' (Ceilon customary law as recorded in
1707), BKI (75), 1919 539
Annex B 273

page
'Bevolkingsrechten op den grond in Indie' (Land rights of the
indigenous people in the N.l.), De Gids, Dec. 1919 542
'Inlandsch grondbezit' (Native landownership), NRC,
3/12/1919 551
'Raffles' Iandrente en het adatrecht', Koloniaal Weekblad
(KW), 11/12/1919 554
'De Javaansehe akkergemeenschap en het adatrecht' (communal
tenure and Javanese a.l.), VIG, 16/1/1920 559
'Taalfamilies en rechtsfamilies' (English version pp. 599-606),
in ]aarboek Koninklijke Akademie van Wetenschappen, 1920 569
'Bevolkingsrechten op den grond in Indie (see above), De Gids,
May, 1920 577
'Het adatrecht van Madagaskar', KA W, 14/7/1920 583
'Families of Language and Families of Law', Illinois Law
Review XV (7), 1921 599
'Een accident in de Indische rechtshervorming' (An incident of
legal reform for the N.I.), De Gids, March, 1921 607
'La politique coloniale par rapport aux us et coutume indigenes',
Institut Colonial International, Campte Rendu de Session tenue
a Paris, 1921 613
(Discussion: idem) 662
'Rascriterium en adatrecht' (The racial criterion and adat law),
VIG, 16/12/1921 667
'Fransen van de Putte en het adatrecht' (Minister F. v. d. P. and
adat law), De Gids, March, 1922 671
'Indonesische rechtstaal' (Indonesian legal language), KAW,
10/4/1922 674
'Het adatrecht in de proeve-Oppenheim' (contribution on adat
law), in J. Oppenheim c.s., Proeve van eene staatsregeling voor
Nederlandsch-Indie (Specimen constitution for the N.l.), 1922 694
'De Indische Universiteit en het adatrecht' (The Indies uni-
versity and a.l.), in Een Universiteit in Ned. Indie, published
by the Indological Society, Leiden, 1922 698
'Bevolkingsrechten op grond en water in Indie' (Indigenous
rights over land and water in the N.l.), De Gids, March, 1923 700
'Rechtstoestand der Javaneo in Suriname' (Legal position of
Javanese inS.), BKI (79), 1923 704
274 Van Vollenhoven on Indonesian Adat Law

page
'Indische staatkunde en adatrecht' (Government policy and
adat law), Nieuw Indie, January, 1924 707
'Bestaat er in het adatrecht onderscheid tussen zakelijke en
persoonlijke rechten?' (ls there a distinction in adat law between
jura in rem and jura in personam?), Indisch Tijdschrift van
het Recht (ITR) (122), 1925 710
'Juridisch confectiewerk: eenheidsprivaatrecht voor Indie' (A
ready-made juridical product: a unified private law for the
N.l.), Koloniale Studien (KS). (9) (I), 1925 719
'Uit den strijd om het adatrecht in Engelseh-Indie (see next
item), in Gedenkschrift Koloniaal Instituut, 1926 745
'Aspects of the Controversy on Customary Law in India',
Asiatic Review XXIII (1), January, 1927 757
'Voorbericht' (Preface) to Literatuurlijst voor het Adatrecht
van Indonesie (adat law bibliography), 1927 770
'Het ontwerp op de Mohammedaansche rechtspraak in Neder-
landsch-Indie' (Bill on Islamic administration of justice in the
N.l.) (a), NRC, 22/12/1927 771
idem (b), NRC, 17/3/1928 775
'Notice sur l'etude pratique du droit coutumier de l'Indonesie',
Academie des Seiences Coloniales, Compte Rendus des Seances
X, 1927-28 777
'Het ontwerp op de Mohammedaansche rechtspraak in Neder-
landsch-Indie' (see above) (c), NRC, 1/11/1928 778
'Regeling van de inheemse rechtspraak' (Legislation on the
indigenous administration of justice), KS (12) (IV), 1928 781
'Jurisprudence in the Netherlands East Indies', in Science in
the Netherlands East Indies, 1929 790
'Voorstel over adatrecht' (adat law proposal), in Institut
Colonial International, Compte Rendu de Ia Session aBruxelles,
June, 1929 799
'Thorbecke op de kaak' (A slap in the face for T.), De Gids,
December, 1929 801
'Bestuursopleiding en adatrecht' (Colonial service training and
adat law), Koloniaal Weekblad (KW), 16/1/1930; Koloniaal
Tijdschrift (KT), (19), 1930 808
'De geschiedenis van het amendement-Poortman op het ont-
werp-cultuurwet, mei 1866' (History of P's amendment of the
1866 Cultures Bill), BKI (86), 1930 812
Annex B 275

page
'Weg met de inheemse rechtspraak?' (Away with the indi-
genous administration of justice?), ITR (133), 1931 816
(With Rene Maunier, University of Paris) Circular: 'Creation
d'un bureau central provisoire pour l'etude des droits coutu-
miers exotiques', 1931 819

B. Other Publications on Adat Law

Miskenningen van het Adatrecht (Misconceptions of adat law), Brill,

Leiden, 1909 (repr. 1926)
Een adatwetboekje voor heel Indie (A specimen code of Indonesian
adat law), Brill, Leiden, 1910 (repr. 1925)
De Indonesier en zijn grond (The Indonesian and his land), Brill,
Leiden, 1919 (repr. 1925, 1932)
De Ontdekking van het Adatrecht (The discovery of adat law), Brill,
Leiden, 1928; French transl. by N. Pernot with introd. by R. Maunier,
La decouverte du droit indonesien, Paris, 1933

Articles: 1932-3:
'Minister Van Bosse en het adatrecht', KT, July, 1932; reprinted in
his Verspreide Geschriften (VG), vol. 111, pp. 603f.
'De poezie in het Indisch recht', ITR (136), 1932; reprinted in his
VG, vol. I, pp. 119ff.
'Old Glory', KT, May, 1933; reprinted in his VG, vol. 111, pp. 638ff.
 Notes pp. 3-11

NOTES

CHAPTERI
1 [Act No. 2 of 1854, replaced in 1925 by the so-called Indische Staatsregeling
(Act No. 327/1925, Wet op de Staatsinrichting van Nederlandsch-Indie), both
enacted by the Dutch parliament - Ed.]
2 [Van Vollenhoven's references were often exhaustive. For the purpose of
this publication only a representative sample has been selected from the
long Iist to be found in his Adatrecht, Vol. I, p. 6. - Ed.]
3 RNI 68(1897):299, 307; IG (1902)1:42ff.; Carpentier Alting (1902:88).
4 MZg 49(1905):236f.
5 Snouck Hurgronje (1893:16, 386; 1894:304, cf. 307 and 1893:374) - the
English translation (1960) gives 'adat law' -; 1903:55 (cf. 318); Nederburgh
(196:71); Juynboll (1903:9, 223); Scheuer (1904:24).
6 In the circular Ietter of the Secretary of Justice [Batavia] d.d. 9/8/1904
- see also p. [35, above]; in two places in the preliminary reports of the
Lower House on the previously mentioned bill to amend sections 75 and
109 of the Regeringsreglement (Bl. 1904-5, 121 No. 12:87, col. 1 & 2); and
finally in the explanatory memorandum on the bill dealing with the training
of civil officers for the lndies (Bl. 1905-6, 226, No. 3).

CHAPTER II
1 Mayne speaks of the 'Dutch Government'.
2 According to Dr Kern this means 'popular usage', i.e. adat, and the more
accurate spelling should have been Tesawalamei. It should also be noted that,
although Mayne claims to possess an 1862 edition of this law-book by H. F.
Mutukisna, none of the papers in the Government Archives at The Hague,
relating to Ceylon, contains any reference to such a codification.
3 RNI 8(1852):83-119.
4 And not Haksteen (see Tamson in TBG 39, (1897):511-15).
5 In 1706; Plakaatboek Vll:392-407.
6 Plakaatboek XIV:93-94, 154; cf. Nederburgh (1904):411, 413, 414-18, 420-22.
7 See the Hazeu edition, VBG 55, II, 1905:119-123.
8 Printed as an Annex to the Reports from Committees of the House of Com-
mons, 1772-73, vol. IV, a written copy of which exists among the manu-
scripts of the University Library in Leiden.
9 See: Jolly, 'Recht und Sitte', in Bühler's Grundriss der Indo-Arischen Philo-
logie und Altertumskunde; Steele, The Law and Custom of Hindoo Castes
within the Dekhum Provinces, 1868; Tupper et al., Punjab Customary law,
1881; Mayne, Hindu Law and Usage, (5th ed.) 1892; Kohler, in Zeitschrift
für vergleichende Rechtswissenschaft, 7-11, 1887-1895; Rattigan, A Digest of
Civil Law for the Punjab, 1901; etc.
10 RO: ss.7 & 8; ABW: s.11; etc.
11 cf. Keuchenins II, pp. 432, 525.
Notes pp. 10-42 277

12 ibid, III, pp. 583, 626, 632, 682, 689, 691, 694.
13 cf. ISb 79/1855, s.10.
14 e.g. ISb 415/1902.
15 Snouck Hurgronje (1894):353; Er. (1876) 1:2; Van der Lith (1882):219.
16 Snouck Hurgronje (1893):106, 58f.
17 Vol. 1:182; Vol. 11:260-62.
18 Vol. 1:12-17, 74-75, 98-99, 358-59, 458; Vol. 11:297-308, 346-73.
19 No. 53 (1899):136-39.
20 pp. 108, 319, 321.
21 Juynboll (1903:7-9, 262-63, 265n, 310-14).
22 e.g. in TBG: 33(1890):330-32, 344-47, 363, 372.
23 in: WA Vol. I (1896-98), part. 1:17-78.
24 Carpentier Alting (1902) Vol. 1(1):48, 56, 75, 137, 148, 149, (3):42, 53.
25 BI. 1904-05, 121 No. 10, par 4, - 54.
26 Gunning (1905:219-20).
27 [So named officially, although the judge is neither a priest nor does he sit in
council - Ed.]
28 MbZg 1904:167-68.
29 (Ed. Der Kinderen, 1872, e.g. 112-13, 143, 170, 179.)
30 ISb 1882 No. 142(j); 1883 No. 4.
31 See the judgment in RNI, 76(1901):75-76.
32 See further: Van den Berg (1895:308-12, 301-03); Enc. N.l. (1896:8, 'Adat');
(1899:541, 'Mohammedanisme').
33 Van den Berg (1901b:1-80, cf. 1899:567; 1897:83-181; 1892:454-512; 1895:
291-314; 1896:541f.).
34 IWR No. 758.
35 Snouck Hurgronje (1893:12), (1894: eh. IV); Piepers (1895:149, 150-52);
Nederburgh (1896-8:17-18); Bergsma (1896-8:205-08); Van der Lith (1882:
217ff., 221-3, 226, 238); Van Ossenbruggen (1902:113); Day (1904:28).
36 Verslag UZV (1905:13-14), cf. Nederburgh (1905-06:2).

CHAPTER III
1 [The popular name of the ill-fated bill of 1865 to 'determine the principles
for the establishment of agricultural and industrial concerns in the Nether-
lands-Indies'. Tabled by Fransen van de Putte in September 1865, it was
withdrawn in May 1866. The lengthy debates on this bill were separately
published in three volumes - Ed.]
2 cf. Handelingen, III:258-267, 446-48, 578-84, 761-63.
3 [This term, and the two subsequent terms italicized here, are used in a tech-
nical sense. Van Vollenhoven devised the following terminology for his geo-
graphic delimitations:
rechtsbekken (lit. law basin) - law region
rechtskring (lit. law circle) - law area
rechtsgauw (lit. law county) - law district - Ed.]
4 [Such memoranda were written by out-going administrative officers for the
guidance of their successors, and usually contain a summary of the former
officer's work and experiences in the area, and a description of local condi-
tions and problems. - Ed.]
5 Ordinance of 30/10/1827, supplemented by a local decree of 28/11/1835. (-)

CHAPTER IV
1 [lt is a tribute to Van Vollenhoven's pcrspicacity at this early stage that his
schcma was never seriously challenged by the increasingly rich results of the
field research he stimulated in the next few decades. - Ed.]
278 Notes pp. 43-63

2 [The Iitera! translation of beschikkingsrecht would be 'right of disposal', and

of the concomitant beschikkingsgebied, 'area of disposal' or 'disposal area',
terms actually employed in the English translation of Ter Haar (1939) - see
footnote p. 43, supra. Van Vollenhoven, too, once used 'right of disposal' (in
quotes) in a contribution to the ll/inois Law Review (XIII, 1918 - John H.
Wigmore festival publication). However, the Dutch substantive beschikking
(from the verb beschikken - to dispose), when used with reference to
property, is not free from the connotation of alienation, and this connotation
is perhaps even more marked in the English 'disposal' (slightly less so in
'disposition' - see Shorter O.E.D.). The Dutch term raised some contro-
versy - not least because it struck at the roots of a long-standing miscon-
ception of fundamental Indonesian (adat) land rights by Iegislators and
administrators, which had led to some gross infringements. Van Vollen-
hoven hirnself admitted that the term was 'ambiguous and obscure', and to
clear up confusion he succinctly enumerated six characteristic features of
this beschikkingsrecht, one of them being that, under Indonesian adat law,
a jural community could not permanently alienate its territory (1909:19-20).
The term has since become firmly entrenched in the technical vocabulary of
Dutch adat law studies (and even in legislation) - see Ter Haar (1939:54f.).
'Right of avail' (the term has a somewhat archaic flavour) has recently
been employed in some English legal anthropological writings. Coined by
the present editor (who hirnself did not use it specifically until 1969 -
Holleman, 1969:88), its consistent usage was first adopted by A. J. B. Hughes
in his studies on African land tenure in Swaziland (1972) and Rhodesia
(1974). Following Hughes, I. Harnnett (1975:65f.) has applied it to Sotho land
rights, but without stressing its communal conception. Its most recent appli-
cation is by F. von Benda-Beckmann (1979) in his study of property among
the Minangkabau. - Ed.]

CHAPTER V
1 Vol. I, 1893; Vol. II, 1894; English edition (The Achehnese), 1906.
2 But excluding Singkel, as weil as Gayoland and Alasland, an administrative
division under (without actually being part of) Aceh since government
decree No. 18 of 19/9/1903. (-)
3 See vol. 55 (1903):53-249, 363-401; 56(1904):587-602; 61(1908):589-667.
4 See map at the end of volume I of The Achehnese, 1906.
5 [These sections reflect some fundamental premises of Dutch colonial policy
as regards indigenous institutions in the East Indies. They read:
S. 67: 'As far as circumstances permit the native population shall be left
under the direct control of its own Ieaders appointed or recognized
by the government, subject to such supervision as may be prescribed
(-) by the Governor General.'
S. 71: 'The native communities shall elect their own chiefs and rulers subject
to the approval of the district administration. The Governor General
shall safeguard this right against any infringement.
Such communities shall be left free in the management of their
domestic affairs, with due regard to the directives issued by the
Governor General or by the district administration.
Where [the above] provisions are not in accordance with the insti-
tutions of the people or with [other] acquired rights they shall not be
applied.' - Ed.]
6 The pitrah, however, is not distributed according to the religious law, but is
(in vulgar Acehnese style) retained by the töngku himself, as wages for his
services at the religious traweh services during the month of fasting.
Notes pp. 70-136 279

7 lts rulers were called Raja Aceh; the name of the capital, Kutaraja, referred
to the fortified palace, dalam, of the sultan.
8 In those days still called Banda Aceh [as it is again called in present-day
Indonesia - Ed.]
9 In Daya, among other places, one comes across the title hakim, nowadays
held by adat headmen.
10 Bila also means the sacrifice offered for the slain person.
11 Cf. section 728 of N.l. Code of Civil Procedure.
12 In Aceh its duration is calculated in a slightly different manner from that
prescribed by Moslem law.
13 [The criterion in adat law being physical maturity rather than age, Van
Vollenhoven avoided the Dutch legal distinction between minderjarig ('under
age', a minor) and meerderjarig ('of full age', a major). Instead he used
mondig and onmondig, adopted from old-Dutch law and corresponding to
puberes and impuberes in Roman law (cf. p. 89, above). As these terms have
no exact equivalents in English ('mature' and 'immature' not being legal
usage), the present translation had to fall back on 'of full age', major(ity),
and 'under age', minor(ity) - Ed.]
14 [i.e. the authorized expedient in Moslem law permitting a believer in onerous
circumstances partially to deviate from the doctrine of the religious ('law')
school he belongs to, and to adopt relevant tenets of another school more
amenable to his problems. In this case the giving in marriage of girls under
age was facilitated by adopting the tenets of the Hanafite School - see
Snouck Hurgronje, 1906, Vol. I:344-5. Ed.]
15 Lit.: 'guest's gift', i.e. the gift made by, and not to, the groom as a guest in
the house of the bride (-).
16 [i.e. under Islamic law: the male agnates - see p. 81. - Ed.]
17 [In a meritorious sketch Kitäb al-qawänin ash-sharciya, published in the
Malay language at Batavia, reprinted in 1895 - Ed.]
18 Tuming the assets into money was not traditional usage, other expedients
being preferred.
19 This right of occupancy is recognized by ISb. 94//1874.
20 The rice fields consecrated for the benefit of the principal mosque at Kuta-
raja are called sara instead of waköeh.
21 As in ISb 509/1908, s.1(9); see also p. 64.
22 In the dependencies it was common practice in times of war to move cattle
on these terms, for instance from the area of Pase to Lhök Sömawe.
23 These 'political fines' were abolished for Aceh Major in 1908 [and later for
the entire Acehnese area].
24 See ISb 204/1907, promulgating the Amendment of Section 75 of the Rege-
ringsreglement of 1854.

CHAPTER VI
1 [Van Vollenhoven here added the archaic Dutch waardschap, meaning those
regularly eating together. - Ed.]
2 [Padri: a strict and militant Moslem sect in the first half of the 19th century,
whose adherents tried to suppress, by force if necessary, all Minangkabau
popular institutions (from cock fighting to matrilineal inheritance) which did
not conform to the Prophet's teaching. It was subdued after prolonged
hostilities by the Dutch colonial forces in 1838. - Ed.]
3 [Cf. Van Vollenhoven's Adatrecht, I:108-115, not reproduced here. - Ed.]
4 Such as jaksa [public prosecutor, head of local police] and mantri [minor
civil officer].
5 [In a postscript dated July, 1924 - see his Adatrecht I:756 - Van Vollen-
280 Notes pp. 137-229

hoven accepted the inaccuracy of this analysis after he bad read the 'sharply
formulated and well documented' article by W. H. A. Sarolea (ITR, 1920,
120-136): ' ... my misconception of the truth, that it is indeed the descending
family branch, jurai, which inherits after the death of one of its members,
and not the family as a whole (-}, and that also the family branch can be
a jural community with its own head.' - Ed.]
6 [For a valuable analysis of more recent developments in Minangkabau law
of inheritance and transactions involving pancarian and pusako property, see
F. von Benda-Beckmann, Property in Social Continuity, Nijhoff, The Hague,
1979.- Ed.]
CHAPTER VII
1 [Cultuurstelsel: the policy of producing crops for the European market
(coffee, sugar, indigo, etc.) on the basis of agreements between the govern-
ment and the indigenous population. Introduced in 1830, the system led to
forced labour and other abuses. It was abolished in 1890. - Ed.]
2 [H. W. Muntinghe was Secretary-General under Governor-General H. W.
Daendels (1807-11) and adviser to T. S. Raffles, the Lieutenant-Governor
(1811-6) during the British interregnum. - Ed.]
3 [Van Vollenhoven here used the Dutch term ouderrecht, see footnote p. 79,
above.]
4 [But see Ter Haar, 1948:111 - the transaction there being translated as
'land pledging (pawning)' - who argues that, even if the agreement were to
contain such a clause, the effect of it in practice would be that the 'pledgee'-
moneylender (who in adat law never has the right to demand redemption
of the loan) after expiry of the stipulated time Iimit can demand that the
tenancy ('pawn') relationship be terminated. lf the landowner-borrower then
fails to repay the loan the tenant-creditor may proceed, by means of a new
agreement (or by court action), to secure adat-ownership of the land. - Ed.]
5 [Superseded in 1915 by a generat Criminal Code applicable to all population
groups. - Ed.]
6 [The judicial regulations of 1848 prescribed the attendance at government
courts in civil and criminal cases involving 'natives', of the chief penghulu
or similar functionary for Islamic matters, and of two indigenous headmen
or suitable substitutes for matters of adat law. - Ed.]
CHAPTER VIII
1 Eindresume II (1880):344; Kern, 1912:186; Boekhoudt, 1903.
2 Enthoven, 1912:185; Van der Meuten, 1924:XIII, 5.
3 [The centrat Representative Assembly of the Indies. Constituted in 1918,
initially as a purely advisory body to the colonial government, it comprised
a racially mixed membership (including a European chairman appointed by
the Crown), which was partly appointed by the Governor-General, and
partly elected by regional and local councils. It was given a greater say in
the legislative process after the constitutional changes of 1925, but never
became a fully-fledged legislature. - Ed.]
4 On this topic see e.g. Westenenk, 1918:41; Hamerster, 1914:1451; Willinck,
1909:812; Wilken, 1912, 11:188; De Waal van Anckeveen, 1913:6-10.
5 Van Vollenhoven, 1918:172, 322, 350, 417-9, 626, 635, 744; Adriani and
Kruyt, 1912(1):399-401; Liefrinck, 1886:1057, 1218; Wilken, 1912(1):58-63,
(II): 395; (IV}:374. For some illustrations, see AB XXII (1923):447.
6 Hekmeijer, 1904:1037, 1043; Kielstra, 1914:260; AB VII:133n, Adriani and
Kruyt, 1912, 11:343.
7 Resume-Ambon, 1875:23; Kroesen, 1897:276; on this topic generally: Wijn-
stroom, 1921.
Notes pp. 233-247 281

8 This indigenous document has been reproduced (unfortunately not without

errors) in AB XVIII:221-35.
9 About processual payments, see e.g.: Ter Haar, 1915; Julien, 1910, 1:363-5,
II:335; De Haan, 1912, IV:649-50; Korn, 1924:253, 284; Van Vollenhoven,
1918:169, 235, 258, 278, 298, 332, 476, 563, 675, 725.
10 See Van Hasselt, 1882:192; Willinck, 1909:686, 872; AB V:96.
11 See: Willinck, 1909:111, 915-8, 932; AB XII:98-107; Kriebel, 1919:1107;
Mallinckrodt, 1925:241; Holleman, 1923:29; Van Vollenhoven, 1918:477.
 BIBLIOGRAPHY •

Adriani, N. and A. C. Kruyt

1912-14 De Bare'e-sprekende Toradja's van Midden-Celebes, 3 vols., Batavia.
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Alting, J. H. Carpentier
[See Carpentier Alting, J. H.]
Anckeveen, G. de Waal van
[See Waal van Anckeveen, G. de]
Avis
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1979 Property in Social Continuity; Continuity and Change in the Main-
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Inlanders en met hen gelijk gestelden) aan de maatschappelijke be-
hoefte? Zoo neen, welke wijzigingen zijn noodig?', HN/J.
1892 'De afwijkingen van het Mohammedaansche familie- en erfrecht op
Java en Madoera', BK/ 41:454-512.
1895 'Nalezing' [De afwijkingen ... Java en Madoera], BK/ 45:291-314.
[Also published in RN/ 65:1-29.]
1896 'Adat', in: Enc. N.l. vol. I, p. 8. [1st ed.]
1897 'De afwijkingen van het Mohammedaansche vermogensrecht op Java
en Madoera', BK/ 47:83-181.
1899 'Mohammedanisme' and 'Mohammedaansch recht', in: Enc. N.I. vol.
II, pp. 522-579 and 538-568. [1st ed.]

* N.B. Abbreviations are listed on pp. XXVIff.; see also 'Works cited',
pp. LXVf.
Authors are listed under their principal names (e.g. Haar, B. ter, instead of
Ter Haar, B.).
This bibliography does not include anonymous miscellaneous materials
cited in the text under the names of the published sources (journals, Adat-
rechtbundels, etc.) in which they appeared.
Bibliography 283

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1896-98 'Mohammedaansche wet of adat', WA 111-1:205-208.
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1843 Volksrecht und Juristenrecht, Leipzig.
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1903 'De zaakwaarnemerij', RNI 80:282-300.
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1902-3 Regeling van het privaatrecht voor de Inlandsehe bevolking in de
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1891 'Middenpersonen tusschen de districts-beambten en desa-hoofden op
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Day, Clive
1904 The Policy and Administration of the Dutch in Java, New York/
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Dictionary
1964 The Shorter Oxford English Dictionary, Oxford [3rd ed.]. [See also
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Hinloopen Labberton, D. van; Horne, Elinor Clark; Osborn, P. G.;
Pigeaud, Th.; Thaib gl. St. Pamoentjak, M.]
Djajadiningrat, R. A. Hoesein
1934 Atjehsch-Nederlandsch Woordenboek, 2 vols., Batavia.
Echols, John M. and Hassan Shadily
1961 An Indonesian-English Dictionary, Ithaca, New York. [2nd ed. 1963.]
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1901 'Een huwelijk bij de Minangkabausche Maleiers; zeden en gesprekken',
TBG 44:387-511.
Eindresume
1876-96 Eindresume van het . .. onderzoek naar de rechten van den Inlander
op grond op Java en Madoera . .. 3 vols., Batavia, 1876, 80, 96.
Enthoven, K. L. J.
1912 Het adatrecht der in/anders in de jurisprudentie, Leiden.
Esmein, A.
1883 Etudes sur /es Cantrats dans le Tres-Ancien Droit Fran~ais, Paris.
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1864 La Cite Antique; Etude sur le Culte, le Droit, /es Institutions de Ia
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284 Bibliography

Gelder, W. de
1897 Het Strafrecht in Nederlandsch-Indie, Batavia/The Hague. [1st ed.
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1921 Uit een vreemde wereld of het leven en streven der ln/anders op de
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1905 'Eenige opmerkingen naar aanleiding van de voorgestelde wijzigingen
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1910-12 Priangan. De Preanger-Regentschappen onder het Nederlandsch Be-
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Haar, B. ter
1915 Het adatproces der in/anders, Amsterdam.
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1939 Beginselen en stelsel van het adatrecht, Batavia!Groningen. [Trans-
lation:
1948 Adat Law in Indonesia, ed. with an introduction by E. A. Hoebel
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Haga, B. J.
1924 Indonesische en Indische democratie, The Hague.
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1914 'De Minangkabausche Staten op het Maleische Schiereiland', KT 3-11:
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Hamnett, J.
1975 Chiefrainship and Legitimacy, London.
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1915 Het bemiddelend vonnis, Amsterdam.
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204-241.
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1882 Volksbeschrijving van Midden-Sumatra, Leiden.
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1905 'Tjeribonsch Wetboek (Pepakem Tjerbon) van het jaar 1768', VBG
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Hekmeijer, F. C.
1898 'Bouwstoffen voor een regeling van het huwelijksrecht en voor de
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1904 'De ontwerpen tot regeling van het privaatrecht voor de Inlandsehe
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1874 'Een vonnis in zake van echtscheiding', MZg 18:17-26.
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1924 Het adatrecht der ln/anders in de jurisprudentie, 1912-1923, Leiden.
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1916 'Judicia Rusticorum', Themis 1916/11:187-226.
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1919 De hedendaagsche inheemsche rechtspraak in Nederlandsch-Indie en
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1878 Ancient Society or Researches in the Lines of Human Progress from
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1902 Oorsprong en eerste ontwikkeling van het testeer- en voogdijrecht,
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1918 'Iets over het Perdikan-instituut', TBG 58:391-424.
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 GENERAL INDEX

abduction 114 XLVff., 16, 28, 103f., 184, 187

Abdurrahman 75 modernization of XXXIII, LXIf.
abortion 114 and Moslem law (q.v.)
accretion of land 189, 239 natural growth XLVIII, 24, 112, 144,
'Aceh bridewealth' 66 218-20
Aceh Reglement 71 nature of 3, 5f., 112, 164f., 197, 209f.,
Aceh War (1873-1904) LV, 54, 58, 105, 225ff., 237ff.
114 recognition of LIII, LVIII, LXIII,
adat 16ff., 210f.
as 'custom' or 'customary' passim research guidelines XXV, 37-9, 262-5
vernacular variants 4 scholarship LIIff., 27-9
folk image of growth 218f. unification of 260
myth of origin 218 see also attestation of law, conflict of
'with legal consequences' XLIII, 5, 6, laws, judicial process, judicial
111 system, sanctions
see also adat law Adat Law Code, specimen XXXII,
Adatrechtbundels (AB) XXVI, passim XXXV, XXXVI
Adatrechtstichting see Adat Law Foun- Adat Law Foundation XVII
dation adat-ownership (land, water)
adat law passim nature of 97ff., 137f., 184ff.
ascertainment of (q.v.) transfer of 98, 99, 138, 187, 210
choice of term 3-6 extinction of 98f., 188f.
vernacular usages 4 village-held 100, 184
definition of XXII, 7 water 104f., 186, 192, 195f.
diversity of 7, 44-53 see also fishponds, land tenure, trans-
conceptual divisions XLVf., 95, 103f., actions (land)
108 adat-ownership (movables) 106f., 198f.,
and Christianity (q.v.) 210
codification of XXXVI, 260 see also contracts, transactions (mov-
early compendiums Sf., 10 ables)
documentation proposals 35-40 adat-volkenrecht LXV
future of XXIII, XXXVI, 260-1 adoption 45, 80, 125f., 167f., 214, 242
guided development of XXXVIIff., see also kinship, legitimacy
119ff., 144, 227f. Adriani, N. 145, 217, 280
and Hinduism (q.v.) administrative law, absence of adat 78
and Indonesian national law XXXIX, adultery 77, 81
LII, LIX advance crop sale see transactions
Malayo-Polynesian basis XLIII, 2, 7, advisers, judicial 17-20, 77, 133, 211
11ff., 22 agency see contracts
misconceptions of XXXIVff., agnate, agnation 81
 292 General Index

Agrarian Law 1870 XLVß, LVI gift/pledge 83, 86f., 134, 170, 199, 214
Agrarian Law 1960, Indonesian breach of 113, 170f., 211, 238
XLVIIf. see also marriage
aid/assistance Bijblad (Bb.) XXVI, passim
communal and reciprocal 111, 202, 'binder', material see bond sum
207-9 Blackstone, W. 101n., 261
mutual 141, 147, 162, 163f. Bloemen Waanders, F. G. van 27
see also desa (services) blood-money 12, 13, 77, 80, 115, 116f.,
ancestral adat see sanctions (supematu- 142
ral) see also revenge, self-help
apanage 100, 147, 152, 165, 179, 191, bodily injury 113, 116, 118, 142
195 Boeke, J. H. LV
see also Mataram, official field Boekhoudt, W. 280
area of avail 43, 165 bond sum 155, 197, 205, 206, 210
see also right of avail not advance payment 187, 200
arson 142 see also betrothal, contracts, judicial
Asbeck, F. M. van X process (dues), transactions
ascertainment of adat law Bosch, J. van den LV, 25, 147
juridical controversy XLIXf., 256-8 Bosse, J. van 28
in Iitigation 252-4 Bosse, P. Ph. van 275
in normal practice XLVIIIf., 258f., Brandes, J. 28
262-5 'bridewealth period' 73, 85, 86, 87-8,
see also attestation of law, evidence 91, 94
assault 142 see also marriage (residence)
associations, voluntary corporate 51f., British interregnum LIIIf., LX
111, 155, 206 see also Raffles
see also contracts, jural community, Bryce, J. 258
tr:msactions Bühler, G. 276
asylum 77, 117 burden of proof see evidence
attestation of law, extra-judicial 222ff. Bus [de Gisignies], L. P. J. du LV, 10
avQidance, in-law 74, 83, 175
Camarecq, A. W. Kinder de see Kinder
'bait of discount' 199 de Camarecq, A. W.
banning of property 75, 101, 113, 118 capacity, legal 61, 128, 135, 158, 159
banishment see sanctions (judicial) Capellen, G. A. G. Ph. van der LV
harter see transactions caretaking see transactions
Batavia (Jakarta) Law School XII, Carpentier Alting, J. H. LIII, 13, 15,
XIII, XLIX, LII, 36 27, 28, 37, 242, 265, 271, 276, 277
batige saldi (net profits) XXXIII caste system 11
Baud, J. C. LV see also Hinduism, status
Beaufort, H. L. T. de XXXI, XL, XLI, cattle, special position of 106f., 112,
LXV 199
Benda-Beckmann, F. von XXIV, 278, see also contracts, transactions
280 (movables)
Berg, L. W. C. van den 20, 22, 28, 271, chattels see contracts, movables, trans-
277 actions (movables)
Bergsma, W. B. 22, 277 chiefdoms, Acehnese 50, 57ff.
Bertling, C. T. XIII, XVI, XVIII self-governing 57
beschikkingsgebied see area of avail federation of 50, 58, 70, 71
beschikkingsrecht XLVI, 43, 278 govemment 65f.
see further right of avail boundaries 66, 96, 119
Beseler, G. 2 functionaries 66f.
betrothal levies 68
General Index 293

see also gampöng, native district, Sul- conditional repudiation 84, 89, 174,
tanate of Aceh 177
chiefs, Acehnese 58ff. see also dissolution of marriage
hereditary position 66 conflict of laws, internal XIII, LIX,
jurisdiction 71ff., 115ff. 14f.
judicial immunity 75, 78, 115 consecrated property
and absentees' property 91 land 104, 107, 159, 191
and deceased estates 94f. other 107, 159, 199
see also chiefdoms, judicial process, Constitution, Netherlands Indies
Sultanate of Aceh of 1854 see Regeringsreglement
Chijs, J. A. van der XXVIII of 1925 see Indische Staatsregeling
Christian marriage see marriage (Chris- specimen XXXV
tian) contracts, adat
Christianity nature of 99, 108, 112, 140f., 187,
influence of 8, 11, 14f., 23, 167, 168f., 200, 205, 209, 210, 244
178, 222 attestation of 225f., 251f.
regional distribution 13, 146 breach of 210
see also marriage (Christian) agency 110, 206
Christian parish, Indonesian 51, 147, herding 205
155, 175, 211, 224 Iodging 204
see also jural community, marriage, partnership 206, 210
village service 204f.
clan passim suretyship 111, 141, 207
jural status 45f. see also adoption, aid, attestation of
confederation 47 law, betrothal, bond sum, fostering,
union 124, 126 legal capacity, marriage, trans-
see also descent, jural community, kin- actions
ship (groups), lineage core-villager 149, 156, 158, 162, 163,
clan house 46 207
clansmen's village 47, 48 role when retired 158, 160, 183, 197
cleansing oath 63, 74, 249 Corpus Juris 103, 122
see also evidence, ritual cleansing see also Justinian, Roman law
colonial government, Dutch passim 'council of priests', priestly court
administrative policy XXIX, LXf., LXIIf., 18, 19, 76, 177, 214
51, 57f., 60, 65, 147, 150, 152, 153 see also judicial advisers, judicial
agrarian policy XXIX, XXXIIIf., system, Moslem law
XL, XLIVff., 147, 154, 157, 183f., Couperus, L. XXXI
229 courts see council of priests, judicial
'ethical policy' XXIXf., XXXIII, process, judicial system, landraad,
XXXIX, XLVII musapat, Moslem law (justice)
legal policy XXXI, XXXIVf., LIII, Cowan, F. J. H. XXXV
LVIII, LX, LXIIff., 15ff., 25f., 117, Cox, B. LXV
142f., 236f. Crawfurd, J. LI, LIII
see also British interregnum, East In- Cremer, J. Th. XXXII
dies Company, judicial system Criminal Code 1915 LIX, LX, LXII,
Commission for Adat Law XXIV, 170, 242
LVII, 40, 265 see also Native Criminal Code 1872
Company, United East lndies see East cropping lease see transactions
lndies Company Cultuurstelsel (culture system) LV,
compensation see sanctions (judicial), LVI, 147, 150, 154
blood-money Cultuurwet 25
concubinage, concubines 80, 165, 166, custodianship see caretaking
167, 172
 294 General Index

Daendels, H. W. LVIII, 9, 10, 36, 280 see also colonial government, Vollen-
darnage to property 113, 142 hoven
Day, C. 22, 277 ethnological jurisprudence XLI, 29ff.
deliktenrecht 113n. Euripides 261
dependencies, Acehnese 54, 56, 59, 64, evidence of facts
65, 96, 97 burden of proof 74, 201, 238, 246
desa (village) passim order of weight 247-8, 252
administration 159ff. admissions/confessions 73, 248
constitution 148-51, 156-8 ordeal 73, 247-8, 249
interests 148, 164 oaths 74, 133, 247-8, 249, 250
justice 160 physical 73f., 247f.
and land 160, 162, 182f., 184, 187, witnesses' 73f., 133, 248, 249-51
188, 190, 195 documentary 74, 238, 251-2
services/levies 162-5, 191, 197 legal presumptions 74, 201, 246-7
see also gampöng, jural community, undisputed 246
nagari, village by proxy 133, 206, 251
descent 79f., 125, 165, 166 of infidels 159
Deventer, C. Th. van XXXII, XXXIII, under torture 73, 248
XXXIV, 169 see also ascertainment of law, attest-
Deyssel, L. van XXXI ation of law, judicial process
dissolution of marriage evolutionism 32, 42
judicial divorce 89, 177, 178f., 224 exogamy 134, 171
repudiation by husband 88f., 135, 177 Eysinga, J. W. M. van X
by wife 88, 89, 177 Ezra's Code 31
by mutual consent 135, 176, 178
see also iddah period, guardianship, family passim
mediation author's use of 43, 124
distraint see sanctions jural status 46, 47, 48, 59, 126, 128,
district court LXII, passim 147
see also courts, judicial system see also household, kinship, lineage
divorce see dissolution of marriage family branch 125, 128
Djojodigoeno LVIII jural status 48, 126 (cf. 280)
Dravidian law 8 family property 48, 128, 133, 135f., 138,
dorpsrechtspraak LXIV 140, 142
see further village justice see also marriage (property), pusako,
Duguit, L. 257 succession
Duymaer van Twist, A. J. LVI feud 77, 116f.
see also blood-money, revenge, self-
East Indies Company LIV, 151, 153 help
agrarian policy LIII fines see sanctions
legal policy XXXIII, LIII, LVIII, see also judicial process, remedies,
8f. self-help
see also colonial government, Mata- fish-pond 98, 103, 105, 165, 187, 191,
ram 194
Eerde, J. C. van 28, 53, 265 fishing basin 98, 103
Eindresume XXVII, passim see also fishing rights
eleutherogamy 169 fishing masters' guild 59, 71
see also marriage, jural equality fishing rights see land tenure
Elout, C. Th. LV Fokkens, F. 148
Enda Boemi LXV foreign orientals XXIII, XXXII, 2, 5,
Enthoven, K. L. J. 280 8, 19, 22, 25, 215, 221f.
Esmein, A. 187 fornication 114, 115, 116, 117
'ethical policy' XXIXf., XXXIII, XL fastering 167
General Index 295

see also adoption Haga, B. J. 227, 232

foundation, pious II, 145 hak ulayat 137f.
see also consecrated property, Moslem see further right of avail
law Haksteen, P. 276
Fransen van de Putte, I. D. LVI, 273, Hamerster, A. J. 280
277 hamlet 63, 149, 150, 162
fraud 142 seealso desa, jural community, village
Freijer, D. W. 9, 10 Hammurabi, code of 32
Friday community 57, 69, 131 Hamnett, I. 278
Frijling, W. 265 Hartzfeld, C. A. J. 239, 240
Fromberg, P. H. 28 Hasselman, C. J. 148, 161, 165
funeral expenses 92 Rasselt, A. L. van 216, 281
Furnivall, J. S. XXXIX, LIII Hastings, W. 9, 10
Fustel de Coulanges, N. D. 23 Hazairin LXV
Hazeu, G. A. J. 28, 265, 276
galar see titles Hekmeijer, F. C. 179, 240, 280
gaming and betting see transactions herding see contracts
gampöng (A. village) Heutz, J. B. van 54
administration 62, 63 Hinduism
constitution 56, 62f. advent of 2
interests 63f., 80 influence on adat institutions 8, 10f.,
justice 63, 71, 77 147f., 218, 243, 247
land 64, 96 Hinloopen Labberton, D. van LVII
see also desa, jural community, nagari, hire see transactions
village Hoebel, E. A. IX, 43n., 79n.
gaukang (fetish) society/state 50, 217 Hoezoo, W. 177
see also jural community Holleman, F. D. XI, XLIX, L, 215, 221,
Gelder, W. de 53 225, 228, 244, 249, 251, 252, 281
genealogical community, 32, 45ff., Holleman, J. F. LXIV, 278
124f. hostageship see sanctions
see also jural community, kinship household passim
(groups) jural status 45, 47, 48, 126
Geurtjens, H. 249 see also family, lodging, marriage
gift see transactions Hubregtse, J. C. 26
Gluckman, M. X Hueting, A. 47, 48
Gobius, A. LIII Hughes, A. J. B. 278
Goens, R(ijckloff) van LIII hukum adat LII
Gonggrijp, G. LIII see also adat law
Graaff, S. de XXXV hukum revolusi LIX
grondverpanding 102n. hypotheek, inlandsehe 103n.
Groot, J. J. M. de 38
Grotius, H. XXX, XXXI, 260, 261 iddah (abstention) period 82, 88, 172,
guardian spirit, village 148, 149 177, 178
guardianship 61, 66, 90f., 92 Idema, H. A. LVI
see also marriage (agentlguardian) ldenburg, P. J. X, XXXIII, XXXIV, 271
Gunning, J. W. 277 Idsinga, J. W. H. M. van XXXIV
Ihering, R. von 244
Haan, F. de 281 Ilbert, C. P. 9
Haar, B. ter IX, XXI, XXXVII, illegitimacy see legitimacy
XXXIX, XLIX, L, LXIV, 43n., 79n., immigrants 127, 146, 222, 259
100n., 101n., 102n., 103n., 233, 248, immorality 113, 142
278, 280, 281 Indische Staatsregefing 1925 XXVII,
habituation, legal 215, 227 LVIII
296 General Index

lndonesian archipelago passim dismissal of action XLVI, 231, 255

ethnic and legal diversity XXIXf., dramatized model 233
XLII, 2, 44-53 execution of judgment 75, 132f.,
foreign influences XLIII, 2f. 234f., 255
see also British interregnum, colonial processual dues 72f., 132, 233-7
government, East Indies Company, see also ascertainment of law, evi-
law region, Mataram dence of facts, judicial system,
lndonesian legal policy LIX, LXI sanctions
inheemse rechtspraak (indigenous justice) judicial system, colonial LXIIff., 236f.
LXII see also colonial government (legal
see also judicial process, judicial policy), Indonesian legal policy,
system, village justice judicial advisers, judicial process,
inheritance see succession landraad, village justice
'inheritance-plus-election', principle of Judiciary Act 1970, lndonesian LXIV
161 Julien, G. 281
see also succession to office jural community passim
inlandsch bezitrecht 97n. concept of XLII, 43(n.)
Institut Colonial International XXX typological survey 45-52
insult 114, 116 see also associations, chiefdom, clan,
interest 108f., 201 Christian parish, desa, family, gam-
intergentiel recht XIII pong, gaukang society, lineage,
see also conflict of laws, internal nagari, native district, principalities,
inter-local conflicts 77, 78, 134 Sultanate of Aceh, village
'intermediate' Indonesian law XXXVIIf. jural equality 79, 166, 169, 175, 176,
irrigation corporation 51, 147, 217f. 178
irrigation right 192, 196-7 see also kinship, marriage
see also adat-ownership (water), land justice, administration of see chiefs,
tenure, transactions (land) colonial government (legal policy),
Islam passim council of priests, desa, gampong,
advent in Indonesia 2 judicial advisers, judicial process,
apostacy from 179 judicial system, kali, landraad, Mos-
see also consecration, Friday com- lem law, musapat, nagari, sanctions
munity, Moslem law, mosque Justinian, Code/system of XLVII, 18,
lslamic law see Moslem law 22, 28, 35, 242
Juynboll, Th. W. 5, 13, 89, 94, 276,
Jaspan, M. A. LII 277
Java War 1825-30 146, 195
'Javanese era' 152, 195, 211 kali (Moslem judge) 18, 67, 69f., 73,
joinder of issue 243 76f., 83f., 89, 92, 95, 116, 133, 245
see also judicial process see also Moslem law, judicial advisers
Jolly, J. 276 Kalis, R. XIX, XX
jual gadai (redeemable transfer) XLVI, kampong see village (suburban)
102n. kanduri (ritual meal) 63, 101, 105, 106,
see further tenancy in return for loan 110
Judicial Code 1848 17, 236 Kappeyne [van de Coppello], J. 25
judicial process, adat Kat Angelino, A. D. A. de LXI
no separation civillcriminal actions Kelsen, H. 257
73, 113, 119, 212, 246 Kemp, P. H. van der 161
aims 119, 212, 232, 237f., 243, 254f. Kern, H. 276, 280
competence 230ff. Kern, R. A. 221
conciliatory/mediatory function Keuchenius, L. W. C. 276
XLIV, 228, 237ff., 256 Kielstra, J. C. 280
contempt of court 133 Kinder de Camarecq, A. W. 223
General Index 297

Kinderen, T. H. der 22, 55, 236, 237, 95f., 105, 107, 181, 186, 192, 196,
277 229
kindred 81, 165, 166, 168, 237 see also apanage, cultuurstelsel, irri-
kinship, kinsnnen gation right, official fields, trans-
groups 79f., 124-6, 165 actions (land)
ternninology 81, 124-6, 166, 168 Langen, K. F. H. van 55
see also adoption, clan, descent, law passim
fannily, kindred, legitinnacy, Iineage, criteria XLIIff., 6
nnarriage, succession and custonn XLIII, 257f.
Kleintjes, Ph. 15, 271 and religion XLIV, 8-23
Koch, K. F. LXV see also adat law
Kohlbrugge, J. H. F. 146 law areas passim
Kohler, J. 29, 31, 34, 276 nnethodological use of XXII, XLV,
Kollewijn, R. D. X, XIII, XIV 34, 41-52
Kommissarissen-Generaal (Connnnis- how to identify 44-5
sioners-General) LIV, LXV, 236 classification of Indonesian 44, 52
Koorennann, P. J. 4, 27/28, 37 and types of jural connnnunity 45-52
Korn, V. E. X, XIII, XVII, LVIII, 243, law clan XXX
248, 281 law district 34, 56
Krabbe, H. 257 law fannily 33
Kranenburg, R. 257 'law follows religion', fallacy of XLIV,
Kriebel, D. J. C. 281 8-23, 28, 35
Kroesen, J. A. 280 Iaw region XLI
Kruyt, A. C. 47, 145, 217, 280 extent of Indonesian 34
Kuyper, A. XXIX, 16 lawyers' law XVIII, 2, 26, 30
legitinnacy 80, 81, 165f., 167f., 248
Lannbert, E. 248, 257 Leiden Institute of Oriental Studies X
Land, J. P. N. XXXI Leiden-Utrecht controversy see Vollen-
landraad (governnnent local court) pas- hoven
sim Leist, B. W. 32
connposition LXII Lev, D. S. LIX
jurisdiction XLII, 213f., 243 levies
and village justice LXIV religious 11, 63, 69, 90, 92, 131
see also colonial governnnent (legal village 64, 129, 162-5, 199, 223f., 226
policy), advisers, judicial systenn Iitigation 72f., 113, 132
land-rent systenn 147, 148, 154, 157 other 64-5, 95, 105, 111, 127, 132,
see also Raffles 146, 165, 180f., 191, 195
landsrechtspraak LXII Ievirate see nnarriage
see also judicial systenn, landraad Iiability
land tenure caretaker's 201, 202
right of avail (q.v.) for debts 78, 111, 141, 143
right of occupancy/reclannation 98, for wrongs 95f., 115, 142, 212, 240f.
101, 180, 186, 188, 191 Liefrinck, F. A. L, LVII, 13, 24, 28, 49,
adat-ownership (q.v.) 51, 145, 218, 228, 265, 280
right of use 100n., 138f. Lincoln, A. 261
fishing and hunting 96, 98, 104, 105, Iineage passim
181, 195, 197 use of ternn 43
grazing 97, 98, 101, 186 jural status 45f., 128
preferential rights 98, 100f., 139, 192 Iiability for wrongs 115
tennporary tenancy 100(n.), 138, 190f. see also fannily, household, kinship
tenancy in return for loan (q.v.) Lith, P. A. van der 10, 22, 27, 37, 38,
tenancy at will 97, 154, 187, 190, 202 277
water and other natural resources Iitigation see judicial process
298 General Index

litis contestatio see joinder of issue ment, East Indies Company

living law versus school-law 31f. material 'binder' see bond sum
loans see transactions Maunier, R. 275
Iodging see contracts Mayne, J. D. 8, 10, 276
Logemann, J. H. A. X, XII, XIII, XV, mediation
XVI, XVII, XIX, XXIII, XLIX, L, extra-judicial 224-7
LXI, 225 judicial 238-45
Louter, J. de XL, 15, 26 Meili, F. 30, 32
Meijer, J. J. 265
Macaulay, Th. B. XXXIV Meijers, E. M. 240
Maddock, K. XIV, XX Memorie van Overgave 35f., 277
Maine, H. S. 219, 221, 257 Meulen, J. C. van der 280
Mallinckrodt, J. LVIII, 235, 236, 281 Mieremet, A. 249
manslaughter 113, 116, 142 Minangkabau colonies 56, 59, 123
Marett, R. R. 215 Moestapa LXV
marriage moiety 124
adoptive 168 mölangga, adat 77, 78
age of 82, 172 see also self-help
agent/guardian 82, 83f., 85, 134, 174, monarchical government 31, 51, 153
175, 179 see also princely rule, Mataram, Java-
arrangements 169f., 171f., 176 nese Principalities, Sultanate of
bridewealth 85, 86, 173, 179, 219 Aceh
child 82, 134, 159 Mook, H. J. van XXXIX
Christian 170, 171f., 173, 175f., 178f. Morgan, L. H. 29
compulsory 83, 119 Moslem law passim
contractual validity (Moslem) 83, 84 influence on adat law llff.
dissolution (q.v.) contract 12, 99f., 108, 174
by elopement 172, 174 marriage 76, 81ff., 110, 173f.
emergency 166f., 219 divorce 76, 89, 177f.
gifts 84, 87f., 111, 135, 146, 170, inheritance 93-4
174f. interest 109, 201
Ievirate 85f., 90, 94 justice 75ff., 116, 177f., 214, 244f.
marital duties, relations 85, 87-8 see also Islam, judicial advisers
preferred 171, 173 mosque personnel 69, 131
prohibited 82, 171f. see also Friday community
property 86-8, 134, 135, 136, 175-6 mother-right 33, 134
remarriage 89, 172 movables, adat categories of 106, 198
ranking of wives 166 see also contracts, transactions (mo-
residence 84f., 90f., 125, 134, 135, vables)
175 moqim see Friday community
sororate 85, 94 mukim see native district
village involvement 84, 173, 223f. Muntinghe, H. W. LI, 148, 280
see also avoidance, betrothal, con- mupakat (mutual consultation) 63, 64,
cubinage, dissolution, kinship, 131, 133
legitimacy, Moslem law (marriage), musapat court 55, 72, 76, 89, 92, 115,
slaves 117f., 120, 214
Marsden, W. LI, LIII, 249 Mutukisna, H. F. 276
Mataram, empire of
former realm 147, 148, 151-3 Nader, L. LXV
effect on adat institutions 152, 153, nagari (village, village republic)
162, 179f. administration 129-31
see also apanage system, principalities constitution 124, 126-7, 131
(central Javanese), colonial govern- justice 132-3
General Index 299

land 137f. partnership see contracts

see also desa, gampöng, jural com- paupers' barn 151
munity, village pawning see transactions
names, naming 63, 168f. Pepakem Tjerbon (law book) 9
Napoleonic codes XLVII, 242 pepper plantations 56, 58f., 61, 64
Native Criminal Code 1872 15, 16, 117, Pernot, N. 275
121, 142f., 210f. personality, legal 61, 241
see also Criminal Code 1915 Phillips, A. X, XI, XIII, XIV, XVIII
native district 57, 65, 70 phratry 124
native law, technical meaning of 5 Piepers, M. C. 22, 277
native municipality LXI pious men 62, 154, 155
see also colonial government (admin- see also village (exempted)
istrative policy), jural community, Pleyte, Th. B. XXXIV, XXXV
village poisoning 142
Nederburgh, I. A. XXXVI, XXXVII, political treaty LX, 55, 57f.
XXXVIII, 5, 13, 22, 28, 40, 215, 265, Poortman, K. A. 274
276, 277 port chieftain 59, 70
Neumann, J. B. 28 Post, A. H. 29, 32, 33
neutral territory 78, 134 preventive law care XXIII
Nieuwenhuis, A. W. 38 see also attestation of law
no man's land 150, 154, 181, 191, 195 priestly court see council of priests
'Prince of Madura' 153
official field 100, 165, 191, 239 see also Mataram
distinct from apanage 165 princely government, influence of 147,
Oostersch Instituut see Leiden Institute 153, 228
of Oriental Studies see also apanage, Mataram
Ophuysen, Ch. A. van 24 principalities, centrat J avanese
Oppenheim, J. 273 defined 145n.
option, right of first 101 distinctive law area 44, 151
Ordinances, colonial former realm 146f.
1874/1896 (land reclamation) 190 distortion Javanese adat law 147, 153
1895 (marriage) 120 see also apanage system, colonial
1906 (native municipalities) 159 government
1907 (village elections) 161 Prins, J. X, XVII
1917 (gaming and betting) 214 private redress see self-help
1935 (village justice) LXIV profit-sharing see transactions
orphans 63, 90 protest, right of 159f.
Osborn, P. G. 101n. Puchta, G. F. 257
Ossenbruggen, F. D. E. van XLV, L, pusako (hereditary) property 135f., 137,
LVII, 22, 28, 29, 145, 277 140, 141
ouderrechtelijk 79n. see also family property, marriage
see also jural equality (property), succession
Pye, L. W. LXV
padri sect 129, 279
Padt-brugge, R. LIII, 25 raad van justitie LXII, passim
pancarian (self-acquired) property 128, see also courts, judicial system
133, 135, 137, 138, 140, 219 Raffles, T. S. LI, LIII, LV, LVIII, 10,
see also marriage (property), 147, 148, 153, 161, 236, 273
succession to property, transactions raja see chiefs
panghululpenghulu raja-state 52
as judicial adviser LXIII, 18, 69f., 76 see also chiefdom
in other functions 129ff., 177 rapat court LXII, 132, 214, 230, 237,
parenteel 79n. 241, 254
300 General Index

Rattigan, W. H. 276 compensation 75, 116, 117, 142, 211

receptio in complexu, theory of 20-2 conciliation 142
rechtsbekken see law region corporal punishment 75, 116, 142, 211
rechtsgemeenschap see jural community death 75, 116, 142, 211
rechtskring see law area distraint 75, 132, 143, 255
rechtsstam see law clan fines 72f., 75, 116, 117, 142, 211
reclamation of land see land tenure hostageship 75, 142
regency (administrative division) imprisonment 116, 117, 255
court LXII, passim outlawry 116, 143
jural status 147 serfdom 116
Regeringsreglement 1854 XXVIII see also judicial process, Iiability,
et passim revenge, self-help
text sections 67 and 71 278n. sanctions, socio-legal
Renan, E. XXXI extra-judicial attestation 212-30
repudiation see conditional repudiation, shaming 116, 118, 142, 212, 215
dissolution of marriage ostracism 143, 212
residency (administrative division) 146, sanctions, supernatural 215-8, 220f.,
passim 227, 255, 257
revenge 77, 80, 115, 116, 117 see also evidence (oaths, ordeal)
see also blood-money, self-help Sande, G. A. J. van der 224
Riede!, J. G. F. 28 Sanggoenodirajo LXV
right of avail passim Sarolea, W. H. A. 280
terminology 43, 137, 278(n.) Savigny, F. C. von 257
nature of XLVIf., 43f., 95-7, 137, Savornin Lohman, A. F. de 16
180ff. Schaap, G. 35
misconceptions XXXIVf., XLVIf., Schaik, S. L. J. van 265
184 Schalk, H. van der XXXI
and State dominium XLVII, 96, 144 Scheuer, W. Ph. 5, 276
territorial scope 96, 119, 150, 181, Schiller, A. A. IX, 43n., 79n.
195 Schrieke, B. 221
weakening of 96, 183, 195, 219 schuldenrecht 106n.
see also adat-ownership, jural com- Schumann, W. M. G. 265
munity, land tenure, Iiability for self-governing territory LXIII, passim
wrongs, transactions (land), village see also chiefdoms, colonial govem-
right of user (movables) 107, 109, 201, ment, political treaty
202 self-help 77f., 114, 211, 220, 237
risk 203 see also blood-money, feud, revenge
ritual cleansing 117, 216f., 232 seminary, religious 71, 154f., 159
robbery 113, 142 see also village (exempted)
Roman law 22, 25, 81, 97, 165, 235, 243 'send-off', married daughter's 73, 90, 94
seealso Justinian, Corpus Juris see also 'bridewealth period'
Roo de Ia Faille, P. de 265 share-cropping see transactions
Rothenbühler, F. J. 25 slander 142
Rouffaer, G. P. 28, 272 slaves 61, 69, 80, 82, 126, 128, 140, 158
Royal Institute of Linguistics and Sloet van de Beele, L. A. J. W. LVI
Anthropology XXIV, XXVI, LVII Snouck Hurgronje, C. XXXII, L, LI,
Royal Institute for the Tropics IX, LVII, 5, 12, 13, 18, 22, 24, 26, 27, 28,
XVI 29, 31, 33, 38, 39, 54, 55, 119, 144, 145,
167, 168, 219, 234, 254, 260, 265, 276,
sale see transactions 277, 279
sanctions, judicial societas humana XXX
banishment 45, 143, 212, 255 Soebroto LXV
banning of property 75, 101, 113, 118 Soekanto LXV
General Index 301

Seeporno XXXIX, LVIII, LXV territorial community 32, 48ff.

Soeripto LXV see also chiefdom, jural community,
Sonius, H. W. J. XVII, XVIII, XX, XXI native district, principalities, village
serorate see marriage theft 113, 116, 142, 211
Speelman, C. LIII Thesawaleme (law book) 8, 276
Staatsblad (ISb.) XXVII, passim things, law of 95
stam, author's use of 42f. Thorbecke, J. R. LVI, 272, 274
Statements in extremis 73, 95, 251 Tirtawinata LVIII
see also evidence, succession to titles 129, 136f., 140, 223, 230
property see also succession to office
status, socio-legal toll-houses 63, 64
age distinctions 89, 158 tombstones, 'planting' of 64, 82, 85, 88,
class distinctions 61f., 128, 155-8, 114
163, 223 trading 134, 141, 200
see also concubines, slaves, women see also contracts, transactions
Steele, A. 276 (movables)
Steenhoven, G. van den XVII, LXIV transactions (land)
Steinmetz, S. R. 29, 40 barter 99, 187
Struycken, A. A. H. 258 gift 99, 187, 199
Suarez, F. 257 hire 102, 195
succession sale 99f., 138, 187
to office 66, 91f., 129, 161f., 223 share-cropping 101f., 105, 108, 194f.
to property 92-5, 126, 136f., 254 tenancy in return for loan (q.v.)
Sugijono LXIV see also contracts, land tenure, legal
suku 48, 59, 124ff. capacity, succession (property)
meaning of 124 transactions (movables)
section 48, 49, 126ff. advance sale of crops 203, 210
jural status 126 barter 106
see also kinship (groups), Minang- caretaking 109
kabau colonies, nagari cropping lease 202f., 210
Sultanate of Aceh gaming and betting 109, 207, 214
edicts of 55 gift 106, 199, 207
political structure 57ff. hire 107, 141, 202
and colonial policy 57, 60, 65 loans 64f., 107, 108f., 141, 201f.
institutional remnants 70-1 pawning 201
Sumatra Reglement 1874 143, 144, profit-sharing 107, 141, 201, 210
236f. sale 106f.
suretyship see contracts see also contracts, succession
Swarth, H. XXXI (property)
treasuries, village 64, 127, 149, 162
Tachtigers XXXI, LXV Treub, M. W. F. XLI
Tamson, J. W. 276 tribal district 48
tanah (tanoh) raja 97, 101, 134, 140 tribe 45
Tarde, G. 234 Tupper, C. L. 276
Tas, S. LXV
taxes, adat see levies United East Indies Company see East
tenancy in return for loan Indies Company
terminology 102n., 192 University Education Act 1876 36
nature of 102-4, 105, 139f., 192-4 Usman, Sayyid 94
see also land tenure, transactions
(land) Valentijn, F. LIII
tenancy at will see land tenure vengeance see revenge
tetrarchs 65f., 70, 78, 90, 130 Vergouwen, J. C. LVIII, 260
302 General Index

verpachting 203 Waal van Anckeveen, G. de 28, 280

see also cropping lease wali, Acehnese usage of 81, 90
village passim see also guardianship, marriage (agent)
jural status 46, 48, 56, 127, 147, 149, warrant/concession, royal 66, 78, 91,
155 154, 217
(con)federation 48, 49 Warren, S. J. XXXI
exempted/privileged 70f., 153, 154f., Wertheim, W. F. XL, LXV
179 Westenberg, C. J. 38, 256
Christian 158, 162 Westenenk, L. C. 125, 280
fishing 151, 158, 162 Wigmore, J. H. 278
saltmakers' 151 Wilken, G. A. L, LI, LVII, 8, 27, 28,
suburban 151 29, 31, 33, 38, 53, 104, 215, 217, 248,
see also desa, gampöng, jural com- 280
munity, land tenure, levies, Willer, T. J. 24, 37, 38
marriage, transactions (land) Willinck, G. D. 123, 176, 235, 247, 248,
village hall (guest-, prayer-, courthouse) 249, 280, 281
47, 62, 63, 64, 125, 150f. Winckel, W. A. P. F. L. 271
village justice XXIII, LXIIIf., 211, 212, Wijnstroom, J. J. 280
231ff. witnesses, formal or prescribed 73, 84,
see also desa, gampöng, judicial 106, 138, 139, 250f.
process, nagari see also attestation, evidence
Volksraad 213, 280n. Wolff van Westerrode, W. P. D. de 265
Vollenhoven, C. van passim women, status of 79, 88, 135, 175
background XXIXff. wrongs, adat
concept of (adat) law XLIIff. conception of 113ff., 141f., 210f.
and 'discovery' of adat law XXI, Lff. Minangkabau classification of 142
and legal policy IX, XVIII, XXIf., prosecution of 115, 142
XXXf., XXXIVff., LXIf. and government justice 117f., 121f.,
methodology XIIf., XLII, XLV, 34f., 143, 211, 212
41-53 see also judicial process, liability,
publications on adat law XXXII, revenge, sanctions, self-help;
266-75 abduction, adultery, betrothal
style of writing X, XI, XIV, XXXI (breach of), bodily injury, darnage
technical usage X, Xlllf. to property, fornication, immorality,
Utrecht-Leiden controversy XLf. insult, manslaughter, robbery, theft
voluntary associations see associations,
voluntary zekerheidstel/ing 103n.
Zittelmann, E. 257
Waal, E. de LVI, 25 Zola, E. 27
 INDEX OF PLACES,
ETHNIC GROUPS, AND LANGVAGES

Aceh XII, XV, XXII, LX, 12, 42, 44, 158, 161, 180, 182, 190, 196, 203, 206,
50, 52-122, 123, 127, 131, 135, 150, 155, 217, 220, 227, 229, 234, 243, 255
164, 173, 176, 180, 185, 191, 196, 199, Baliaga 7
206, 216, 219, 220, 233, 234, 250, 255, Balinese LVII, 41, 42, 51, 146, 148, 151,
278, 279 159, 160, 167, 182, 216, 234, 247, 249,
Aceh Major 18, 54, 55, 56, 57, 58, 60, 254, 261
62, 64, 65, 66, 67, 68, 69, 70, 71, 72, Banda Aceh 279
76, 87, 91, 96, 97, 99, 105, 110, 120, Bangka 44, 50, 52
279 Bangkalan 152, 205
Acehnese 4, 6, 27, 53, 54, 145, 148, 227, Bangkalan-Sampang 153
279 Bantarn LVI
Africa X, XI, XIII, XV, 30, 278 Banten 12
Agam 123, 130, 132, 137 Banyumas LVI, 146, 147, 152, 153, 161,
Air Haji 137 199
Alas 55 Banyuwangi 158, 190, 191
Alasland 44, 52, 56, 66, 70, 96, 278 Baree 145
Alfur 13, 25 Barus 123
Ambon LIII, 7, 13, 44, 48, 52, 172, 232, Batak 4, 6, 7, 13, 14, 37, 48, 52, 53, 55,
244, 247, 280 56, 141, 217, 232, 236
Ambonese 48, 180 Batakland 7, 32, 44, 48, 52, 56, 103, 123
America, American XVI, 30 Batang Hari 123, 124
Amsterdam IX, XVI, 27 Batang Natal 123
Anglo-Saxon XIV, 261 Batavia XII, XIII, XXIV, XXXV,
Antwerp 41 XLIX, LI, LII, LIII, LVII, LXII, 8,
Arab XXIII, XXVI, XXXII XLIII, 4, 36, 40, 222, 245, 253, 254, 265, 276,
7, 8, 19, 21, 30, 31, 33, 58, 61, 63, 81, 279
110, 116, 117, 122, 205, 206, 244 Battah 37
Arabia 61 Bawean 151, 152, 153, 157, 158, 166,
Arosbaya 152 170, 172, 173, 174, 175, 180, 184, 185,
Aryan 32 189, 192, 193, 198, 200, 207
Asia 261 Belitung 44, 50, 52
Australia XX, 261 Bengal 9
Bengalese 8
Badui 7 Benkulu LIII, 123, 238, 239
Badung 243 Bentara Kömangan 58
Bagelen 146, 147, 150, 152, 154, 180, Besuki 146, 151, 152, 180, 207, 212
181, 183 Blang Pidie 58
Balambangan 151, 152 Blitar 152
Bali LVII, LVIII, 7, 17, 32, 34, 44, 49, Bluek 72
51, 52, 96, 103, 145, 147, 148, 152, 155, Bodi-Caniago 124, 218
304 Index of places, ethnic groups, and languages

Bogor 260 57, 79, 101, 102, 106, 109, 133, 141,
Bolaäng-Mongondow 13 147, 152, 169, 197, 203, 221, 223, 228,
Bondowoso 239 239, 240, 242, 246, 261
Boni 8, 50 Dutch Borneo 52
Borneo XXV, LVIII, 7, 13, 22, 37, 38, Dutch New Guinea 34, 44, 52
44, 46, 51, 52, 100, 161, 213, 218, 224, Dutch Timor 44
245
Brabant 27 East Java XII, XIII, 7, 8, 13, 42, 44,
Britain 260 146, 150, 153, 159, 160, 165, 169, 172,
British LV, LX, 44, 74, 82, 261 173, 174, 183, 187, 191, 198, 200
British Borneo 34 Egyptian 30
British India XL, 9, 10, 36 England XIII, XIX, 30
Bröeh see Pulo Bröeh English IX, X, XI, XII, XIV, XVI,
Bueng 63 XVIII, XIX, XX, XXV, XXXI, 2,
Buginese 44, 58, 146, 261 5, 33, 43, 44, 54, 79, 101, 102, 106,
Buginese-Macassarese 217 111
Buitenzorg 260 Europe 30, 147, 232, 248, 261
Bulawayo XII, XV European XXXI, XXXV, XXXIX,
Bungong Taloe 73 XLIII, XLVII, LIII, LIV, LV, LVI,
Burma XXXIX LVIII, LXX, LXI, LXII, 2, 3, 4, 7, 19,
Buru 44, 47, 224 24, 25, 26, 27, 37, 51, 55, 67, 96, 100,
119, 122, 137, 138, 145, 151, 155, 161,
Calcutta 9 171, 188, 191, 205, 216, 222, 226, 229,
Celebes XXV, 7, 51, 52, 121 234, 238, 240, 241, 242, 244, 245, 252,
Central Africa 34, 261 263
Central America 261
Central Asia 34 Formosa XXX
Central Celebes 13, 37 Fort De Kock 36, 66
Central Java XII, XIII, LVIII, 7, 8, 13, French LX, XXXI, 187, 242
15, 42, 44, 145, 146, 147, 150, 153, 155, French India 40
156, 159, 160, 165, 173, 174, 180, 183, Friesian 18, 221
187, 190, 191, 198, 200, 225, 238, 244,
250 Galela 47
Ceylon 8, 276 Gayo 4, 27, 38, 44, 52, 55, 141, 145,
China 34 167, 180, 234
Chinese XXIII, XXXII, XXXVII, Gayoland 44, 46, 56, 58, 63, 68, 70, 96,
XXXIX, XLIII, LIII, 2, 4, 7, 8, 19, 23, 234, 264, 278
29, 100, 109, 202, 203, 205, 216, 218, German 32, 203, 257
221, 222, 224, 229, 244, 245, 250, 253, Germanie 60, 248
254, 258 Germany 41
Cirebon LIII, LVI, 9, 146 Gigieng 58
Giri 151
Daya 279 Goa 8
Dayak 7, 22, 46, 52, 167, 213, 230 Gödöng 61, 66
Delft LVI, LVII, 20 Gorontalo 44, 52, 180
Demak 151 Gowa 50
Dordrecht XXXI, XXXIII Greek XXXI, 30
Durban XV Gresik 147
Dutch IX, X, XI, XII, XIV, XVI,
XVIII, XIX, XX, XXI, XXIII, XXXI, Halmahera 23
XXXIII, XXXIX, XL, XLI, XLIII, L, Hellenes 261
LII, LIII, LIV,LVIII, LX, LXI, LXII, Holland IX, XII, XIII, XX, XXIX,
1, 2, 3, 7, 12, 22, 26, 29, 42, 43, 44, 54, XXXI, XXXII, XXXIII, XXXIV,
Index of places, ethnic groups, and languages 305

XXXVI, XL, XLII, LV, LVIII, 25, 27, Kaway V 71, 73

51, 154, 216, 228, 260 Kaway XII 58, 71, 105
Kedah 123
leeland 258 Kediri 15, 146, 147, 150, 152, 202
Idi Rayök 55 Kedu 146, 152, 153, 154, 155, 180, 181,
Iien 150 182, 199
India XXX, 10, 30, 34 Kedu-Bagelen 152, 153, 154
Indian XXIII, XXXII, XXXIX, 7, 8, Kei Islands 48
31, 36, 109, 219 Kerinci 122, 123
Indo-China XXX Kitchen-Malay 26
Indo-Germanic 33 Kömala 58, 66
Indragiri 123, 127 Klungkung 152
Indrapura 137 Körötoe 78
Koto-Piliang 124, 218
Jafna 8 Koto Sitingkai 127
J akarta XII, XXXIX, LII Kutaraja 55, 56, 63, 66, 69, 75, 76, 84,
Jambi 62, 123, 218, 235, 241 100, 105, 279
Japan 30 Kwantan 123, 124, 127, 131
Japara 146, 152, 161, 196
Java XV, XVIII, XXXIII, XXXIV, Laböh Aji 59
XXXVIII, LI, LIII, LIV, LV, LVI, Lagöen 66, 67
LVII, LVIII, LX, LXII, LXIII, 2, 4, 6, Lampung 231, 234, 247, 253
7, 12, 14, 17, 18, 21, 22, 24, 25, 32, 36, Lebak 12
37, 38, 45, 49, 50, 51, 52, 53, 61, 66, 69, Leiden X, XIII, XV, XVII, XIX,
83, 84, 89, 98, 100, 103, 120, 122, 145, XXIV, XXXI, XXXII, XXXIII,
146, 147, 148, 150, 151, 152, 153, 155, XXXV, XL, XLI, XLIX, LII, LVI,
156, 158, 161, 165, 166, 168, 170, 172, LVII, 27,43
174, 176, 177, 178, 181, 184, 188, 189, Lhok Sömawe 56, 65, 67, 71, 279
192, 195, 198, 200, 201, 202, 203, 204, Licin 150
206, 213, 216, 220, 223, 224, 225, 231, L Koto 123, 124, 130, 131
232, 234, 236, 244, 249, 252, 255, 258, Loda 47
264 Lombok LVII, 7, 17, 34, 42, 44, 51, 52,
Javanese XXVI, LIII, LIV, LV, LVI, 145, 159, 161, 180, 189, 190
LXIII, 4, 6, 8, 18, 21, 36, 44, 49, 51, London X
56, 60, 69, 78, 79, 131, 145, 146, 147, Luwu 47, 217
148, 149, 151, 152, 153, 154, 155, 156,
158, 159, 161, 164, 166, 167, 168, 169, Macassar 8, 222, 245
171, 173, 175, 177, 178, 179, 180, 181, Madagascar XXX, 34, 123, 220, 231,
187, 189, 193, 195, 197, 198, 200, 201, 261
204, 206, 207, 209, 210, 211, 224, 237, Madiun 146, 147, 152, 153, 154
238, 244, 248, 249, 254, 255, 261 Madura XII, XIII, XVIII, XXXIII,
Jeddah LVII XXXVIII, LVII, LX, LXII, LXIII, 7,
Jew 32 12, 21, 36, 38, 42, 44, 50, 51, 52, 53,
Jombang 253 96, 145, 146, 148, 149, 150, 151, 153,
155, 156, 157, 158, 159, 160, 161, 165,
Kalianda 253 166, 170, 176, 177, 184, 185, 187, 189,
Kalimantan XXV 191, 192, 194, 198, 201, 204, 205, 207,
Kampar 59, 123, 130, 131 232, 239, 249
Kampar Kiri 127 Madurese 146, 147, 148, 149, 150, 151,
Kangean 158, 170, 171, 172, 176, 198, 152, 153, 156, 159, 164, 167, 172, 175,
205, 207 177, 179, 180, 181, 187, 190, 193, 194,
Karo-Batak 4, 38, 70, 249, 255 198, 200, 201, 239
Karoland 62, 150, 180, 256 Majapait 147, 151
306 Index of places, ethnic groups, and languages

Majawarno 146 Padang 26, 53, 56, 58, 100, 123, 131,
Makarese 146 221, 254
Malabar 40 Pagarruyung 134
Malacca XXX, 123 Painan 137
Malang 146 Pakualaman 145, 152
Malay 4, 22, 23, 26, 44, 50, 52, 55, 56, Palembang 148, 150, 161, 231, 241
58, 67, 193, 213, 218, 234, 254, 279 Pamekasan 152, 153
Malayo-Polynesian XXX, XLIII, Panaraga 154
XLIV, 2, 7, 11, 12, 18, 22 Pariaman 59
Manado 225, 256 Parigi 47
Mangkunegaran 145, 152 Paris XXX
Maninjau 254 Pase 58, 72, 279
Mataram 147, 148, 151, 152, 153, 163, Pasundan 44
174, 191 Pasuruan 146, 151, 152, 162, 180, 181,
Mataramese LIII, 147, 152, 154, 162, 196, 202
179, 181 Pati 151
Mecca LVII, 92, 216 Pekalongan 146, 152, 182
Melaka 218 Pemalang 151
Menado 13, 25 Philippines XXX, XL, 34, 224, 231
Menggala 253 Pi die 56, 57, 58, 66, 70, 71
Minahasa LIII, 7, 13, 14, 27, 28, 36, 44, Pinang 54, 109
45, 47, 48, 52, 121, 148, 182, 209, 224, Polynesia 30
227, 229, 234, 241, 242, 248, 264, 265 Pondichery 40
Minahasan Malay 4 Pörölak 96
Minangkabau XVIII, 4, 24, 26, 28, 32, Portuguese XLIII, 2, 7
37, 41, 42, 44, 45, 47, 48, 49, 52, 56, Portuguese Timor 34
59, 123, 144, 148, 157, 171, 176, 181, Posso 13
193, 200, 216, 218, 219, 221, 227, 233, Priangan 50, 96, 146, 265
236, 246, 247, 249, 253, 261, 278, 279, Probolinggo 150, 180, 196
280 Pulau Lawan 123
Mökek 59 Pulo Bröeh 56, 65
Mölaböh 71, 73 Pulo u 56
Moluccas 4, 24, 27, 44, 161, 215, 220, Pulo We 12, 56, 65
245 Punjabi 256
Mörödu 91
Muko-Muko 123 Red Indians 34
Rembang 146, 152, 196
Natal XV Rhodesia 278
Negri Sembilan 123 Riau 59, 123
Netherlands XXI, XXXI, XL, LIV, Riau-Lingga 44
LX, 1, 2, 6, 18, 34, 41, 78 Rigalh 66
New Guinea 7, 13, 14, 34, 224 Roman 32
New South Wales XX Rotterdam 41
New Zealand 261 Russia 34
Nias 13, 56, 61, 69
Nijmegen XVII, XIX Salatiga 145
Noordwijk 27 Salisbury XV
North Africa 261 Sama Dua 59
North America 261 Samalanga 57
North-west Africa 34 Sampang 152
Sangi 39
Outer Provinces LX, LXIII, 12, 17, 19, Sanskrit 4, 7
27, 36, 98, 264 Sapeken 205
Index of places, ethnic groups, and languages 307

Sasak 42 Tanjong Karang 38

Sausu 47 Tapak Tuan 59
Sawahlunto 13 Tapanuli 224
Sawu 13 Tapung 123
Scandinavian 221 Tegal 152, 197
Segara Anakan 151 Tengger 146
Semarang XXXIII, LIII, 146, 152, 196 Tenggerese 7, 167
Semitic 33 Ternatan 13
Seram 44, 47 Ternate 7, 44, 47, 48, 52, 224, 229
Serawak 44 Teuton 30
Sidayu 161 The Hague XXIV, XXXV, LVII, 260,
Sidoarjo 151 265, 276
Sirnatur 56 Timor 13, 32, 46, 52, 161
Simelungun-Batak 70 Tiro 71
Simla 245, 256 Tirol 221
Simölu 56, 65 Toba 39
Singkel 55, 56, 278 Toba-Batak LVIII, 70
Solo 152 Tobaru 47
Solok 124 Tobeta 47
Sotho 278 Tojo 47
South Africa XI, 30, 261 To Lage 47
South America 261 Tondano 36
South Borneo 234, 236, 247 Tönom 65
South Celebes 13, 44, 50, 52, 147, 151, Tonsawang 167
217 To Pebato 47
South China 38 Toraja 7, 37, 41, 44, 47, 52, 145, 180,
South Oceania 261 216, 219, 224, 249, 255
South Sumatra 4, 8, 34, 38, 44, 52, 53, Trumon 56
123, 149, 216, 223, 234, 247, 253 Tuban 147, 151
Stellenbosch XI, XII Tumapel 151
Straits Settlements 34, 259
Sulawesi XXV Upper Siak 123
Sumatra LIII, 7, 27, 44, 50, 51, 52, 123, Utrecht XVII, XL
161, 236, 237, 254, 264
Sumba 13 Voorschoten 41
Sumbawa 13
Sumbercanting 150 Warmond 41
Sumenep 152, 153 We see Pulo We
Sundanese 56, 146, 207 Weltevreden 265
Sungoe Raya 122 West Borneo 222
Surabaya LIII, 25, 146, 151, 152, 154, Western Europe 29
161, 180, 196, 253 West Friesland 260
Surakarta LII, 145, 146, 151, 152, 222 West Java LV, LVIII, 42, 44, 96, 100,
Susöh 59 150, 159, 168, 198, 220
Swaziland 278 Western Sumatra 24, 36, 225
West Timor 52
Tamiang 55, 56
Tamil 8 Yogya 152
Tanah Datar 123, 130, 132 Yogyakarta LU, 145, 146, 151, 152