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University of New South Wales Law Journal Student Series |
THE FOCUS ON COMMUNITY STABILITY IN ADAT LAW AND THE MUI FATWA
JARROD MITCHELL
Indonesia is the largest Muslim majority country in the world and one of Australia’s most strategically important neighbours.[1] As Islam assumes an increasingly central role in Indonesian politics, it is important to understand the ways in which Islam is interpreted in Indonesia. One group which exercise significant influence over the interpretation of Islam in Indonesia are the ulama[2] who issue fatwas on the interpretation of Islamic law. Various factors complicate the relationship between the fatwas in their written form and the interpretive legal process which the ulama conduct before they are written. These fatwas are not a direct window into the minds of the ulama and they do not exhaustively explain why particular interpretations of Islam prevail in Indonesia. In light of the complexities which vex such a reading of the fatwas, this paper simply highlights that particular fatwas on minority Islamic beliefs display a focus on what I will call, ‘community stability.’ I further argue that this focus on community stability is similar to the focus on community stability found in adat law, the customary indigenous law of Indonesia. I deliberately refrain from drawing a causal relationship between the two, but leave open the possibility for further inquiry on this front.
With its methodology based in the comparison of two different but intertwined legal systems, this paper associates itself with the theoretical commitments of legal pluralism. On the other hand, I do not delve deeply into justifications of legal pluralism or apply theories of it here. I begin with brief definitions of fatwas, Syari’ah and adat law as they are found in Indonesia. This is followed by a literature review of the scholarship on legal pluralism in Indonesia, particularly on the interaction between fatwas and adat law. I then analyse the preambles of five fatwas which relate to minority Islamic beliefs and practices in the 21st Century; fatwas against the Ahmadiyah, Shamanism, Gafatar, Al-Qiyadah Al-Islamiyah and the fatwa on liberalism, pluralism and secularism. After identifying and analysing the themes of community stability and the purity of Islam, I argue that the fatwas exhibit the same attention which adat law exhibits towards the stability of the community.
While scholars have not universally adopted one particular definition of adat law, the different definitions used are broadly in agreement. Hooker defines adat law as a culturally and territorially confined legal system which is not unitary in structure.[3] Federspiel agrees that adat law is culturally and territorially confined, defining it as, “the mores and behaviour of various cultural groups throughout the Indonesian Islands.”[4] Henley and Davidson claim that adat ‘means “custom” or “tradition”, and carries connotations of sedate order and consensus.’[5] Scholars broadly agree that adat law is a customary system of law which is culturally and territorially confined.
M.B. Hooker’s book Adat Law in Modern Indonesia is the most authoritative source on adat law in Indonesia. Hooker emphasises the need to relinquish epistemic categories inherited from Western legal traditions when thinking about adat as law. Unlike Western legal systems, the individual is not the primary referent of adat law, but rather the community.[6] Hooker also highlights that legal personality coheres with human existence in societies based on adat law, meaning that law is not a separate sub-culture, but rather attaches itself to all beings in the society by virtue of their membership.[7] Finally, Hooker highlights that adat law is not a unitary system that applies across Indonesia, but rather that it is culturally confined.[8] Hooker highlights these features of adat law in order to dispel unconscious assumptions about what law is, which are inherited from Western legal traditions.
Yet, in this attempt to dispel particular assumptions about the nature of law, Hooker also articulates particular assumptions which underpin adat law. These are that the referent object of the law is the community, that the law attaches to human beings by virtue of their membership in a society and that the law is culturally specific. The identification of these assumptions at an early stage prefaces my core argument, which is that the focus on community stability in adat law is also present in particular fatwas of the MUI.
A fatwa is a nonbinding opinion issued by a qualified religious scholar on an issue of Islamic belief or practice.[9] A fatwa draws on quotations from the Qur’an, Sunah and fikih to support the opinion which it advances.[10] Fatwas are often described as a current and dynamic source of law in contrast to the relatively static doctrinal framework of fikih, allowing for a degree of agency over the development of Syari’ah in new contexts.[11] The religious scholar who issues the fatwa is referred to as a malim (singular) or ulama (plural).[12]
Fatwas can be issued by an individual malim or a group of ulama.[13] Fatwas are mostly issued by a group of ulama in Indonesia today.[14] The most significant ulama councils are MUI, Muhammadiyah, Nahdlatul Ulama and Persis.[15] The MUI is the quasi-official body of ulama appointed in consultation with the national government to review current moral and religious issues affecting the nation.[16] Its fatwas make recommendations to the government as well as offering guidance to Indonesian Muslims.[17] While the MUI is smaller and younger than other ulama councils, its fatwas are widely considered to be the most authoritative in Indonesia.[18]
The term Syari’ah refers to Islamic law and it is used with small variations as to its scope. Most scholars agree that Syari’ah refers to the divine will of God[19] expressed in the Qur’an[20] and Sunah.[21] Other scholars use the term Syari’ah to refer to the primary sources, Qur’an and Sunah, as well as the jurisprudence (‘fikih’)[22] which interprets them.[23] The distinction between the broad and narrow definitions of the term has little bearing on my argument in this paper, which focuses on the preambles of particular fatwas, rather than the citations of the Qur’an, Sunah and fikih in the fatwas. For thoroughness, the term Syari’ah will only be used to refer to the Q’uran and Sunah.
In summary, the comparisons which I draw between adat law and particular fatwas in this paper must necessarily be informed by the definitions which attach to these terms. I study the preambles to particular MUI fatwas and compare them with adat law. Legal pluralism provides a theoretical background for this comparative work and it is here that we now turn. The next section briefly surveys the approach of legal pluralists to the study of adat law and fatwas in Indonesia.
Legal pluralism is the situation in which two or more legal systems interact.[24] This suspiciously simple definition elides the substantial difference of opinion which exists amongst legal pluralists. I deliberately do not concern myself here with the definitional debates which occupy scholars such as Griffith and Hooker.[25] Nor am I concerned with what difference, if any, there is between ‘weak’ and ‘strong’ legal pluralism.[26] My simple goal is to lay out for inspection the work completed to date on the comparison of adat law and fatwas in Indonesia, much of which applies a legal pluralist lens. To better contextualise this inquiry, I also include studies which apply theories of legal pluralism to the situation where these bodies of law interact with positive law.
Scholars studying the relationship between Syari’ah and adat law focus on the conflicts which arise between the two legal systems in the courts. In his book on adat law in Indonesia,[27] Hooker claims that the Dutch legal system created choice of law issues between adat and Syari’ah which did not previously exist in Indonesia.[28] This claim about choice of law foreshadows Hooker’s focus on positive law and state institutions, particularly Islamic Courts, as the sites of interaction between Syari’ah and adat law.[29] Other notable examples of scholarship related to courts include Kebeet von Benda Beckman’s book on courts in Minangkabau and John Bowen’s work on local courts in Aceh.[30] The impact of plural legal systems on the perception of courts has also been explored in other jurisdictions, such as Israel.[31] These works study the way that people use and view courts where multiple legal systems coexist and offer different or even contradictory solutions to disputes.
Another body of work which considers the interaction between adat law and Syari’ah is Hooker’s book on fatwa and social change in Indonesia.[32] Hooker focuses on fatwas because he considers them to be more authentic than the codified Syari’ah.[33] Hooker’s central claim is that Indonesian Islam is different from Middle Eastern Islam because of the history of Islam in Indonesia,[34] including its relationship with adat law.[35] One view included in the book, albeit only briefly, is that the Muhammadiyah and NU are opposed to explicit reliance on adat law in their fatwas.[36] I agree that ulama councils, the MUI included, do not explicitly rely on adat law in their fatwas. This is still perfectly consistent with my claim that the fatwas studied place a similar emphasis to that which adat law places on the stability of the community. The other feature of Hooker’s work which distinguishes it from other scholarship is that it studies fatwas in their own right, rather than in a positive law context, such as the courtroom. Herein lies another similarity with the method which I choose in this paper, which compares adat law and fatwas in their own right, outside of the state’s legal infrastructure.
It is important to separate the argument which I advance in this paper from the view advanced by the Leiden school, chiefly by van Vollenhoven.[37] Van Vollenhoven impressed upon the colonial administration the importance of adat law when attempting to understand law in the West Indies.[38] One theory which belongs to this school of thought is known as ‘reception theory.’ Reception theory holds that the legal rules belonging to Syari’ah only have legal status to the extent that they are received into adat law.[39] Later scholars criticise reception theory because it overstates the impact of adat law on the reception of Shari’ah in Indonesia.[40] My argument, grounded in the theoretical framework of legal pluralism, does not assume that Syari’ah relies on adat law for legal effect. On the contrary, my view is that Syari’ah and adat law coexist and source their authority independently of one another. My focus is on their shared concern for the stability of the community.
Outside of the prism of adat law and fatwas, scholars pay special attention to the interaction between the MUI and positive law. Scholars address the influence of the MUI over all three branches of the state; the government, the legislature and the judiciary. Lindsey highlights that the MUI largely controls halal certification and Syari’ah commerce, but that these are also vital sources of income for the MUI.[41] Fenwick claims that the MUI shaped legislative change in as many as 29 laws and regulations, of which it is explicitly referenced in the Companies Law (Law 40/207 Article 109) and the Syariah Banking Law (Law 21/2008 Article 26).[42] Finally, Crouch demonstrates that the judiciary defers to the MUI on issues of Islamic doctrine in blasphemy trials.[43] Unlike Lindsey and Fenwick, Crouch deliberately associates her work with the theoretical framework of legal pluralism when considering the interaction between the MUI fatwa and positive law.[44]
Also concerned with positive law, Ratno Lukito offers a three pronged model which explains the incorporation of adat, Syari’ah and civil law traditions into the Indonesian legal system.[45] This model distinguishes between acculturation, assimilation and compartmentalization. Acculturation describes the circumstance where the state explicitly adopts another normative order into the legal system, assimilation where the state draws on disparate traditions to form a uniform law, while compartmentalization refers to the adoption of particular norms for segments of the population.[46] Acculturation, assimilation and compartmentalization help us to understand the interplay between positive law and legal systems outside of it.
With this preliminary work complete, all that is now left is to study the fatwas themselves. For this purpose, I set out a brief methodology explaining why particular fatwas were chosen and how they were sourced. This then leads into the argument that the fatwas studied share the emphasis which adat law places on the community and particularly the importance which it attributes to community stability.
The fatwas which I study were selected for four reasons. First, scholars broadly agree that fatwas are both dynamic and authentic, which renders them an ideal site in which to study the interaction of Syari’ah and adat law in Indonesia.[47] Second, the MUI fatwa was chosen because of the wide agreement that the MUI is the most prominent issuer of fatwas in Indonesia.[48] Third, I only focus on fatwas issued after the year 2000, because of the common view that the fatwas of the MUI changed after the Suharto regime was overthrown in 1998.[49] Finally, I chose fatwas relating to minority Islamic beliefs because these fatwas were particularly controversial in academic circles.[50]
The fatwas were sourced from the online index of fatwas uploaded by the national fatwa committee of the MUI.[51] I decided to focus on the preambles to the fatwas because of the way they are structured. The fatwas were all broken down into four sections; consideration, reference, argument and decision. The consideration section was the most fruitful area of analysis because it affords the ulama relatively wide latitude to choose different words and phrases when drafting. In contrast, the sections on reference and argument largely consist of quotes from the Qur’an, Sunah and fikih. Finally, the section on decision was brief in some of the fatwas and this did not lend itself to a comparative study of the language used. For these reasons, I decided to study the consideration or perambulatory section of the fatwas. The obvious drawback of a piecemeal approach is that fatwas are intended to be read as a whole. The results generated from the study must be read in this light.
As a result, I examine five preambles belonging to five different fatwas. The fatwas on the Ahmaddiyah, Shamanism and liberalism, pluralism and secularism were all issued in 2005.[52] The fatwa on Al-Qiyadah Al-Islamiyah was issued in 2007 and the fatwa on Gafatar was issued in 2016.[53] The fatwas are clustered around the mid 2000’s, save for the fatwa on Gafatar issued in 2016. The preambles of these fatwas were downloaded and translated by a NAATI certified translator for a fee.[54]
The theme of ‘community stability’ appeared in all five preambles. All preambles exhibited this theme uniformly; they first noted the spread of the given belief in the community and then that the spread of the belief caused community unrest. The fatwa on Gafatar reads (emphasis added):
In the midst of the community an organization has developed named Gerakan Fajar Nusantara (GAFATAR) Dawn of the Indonesian Archipelago Movement which is active in social fields, however there are the facts that they teach their beliefs and religious understanding which causes unrest in the Muslim community.
Three of the fatwas linked the spread of the belief in the community to community unrest and the fact that members of the community requested the fatwa.[55] The fatwa on the Ahmaddiyah was one example where the link between community unrest and the request for the fatwa was inexplicit (emphasis added):
[A] section of the community requests a confirmation again of the MUI fatwa in regard to the views and concepts of Ahmadiyyah in regard to the emergence of various opinions and various reactions in the community arena
Other fatwas explicitly linked community unrest to the community request for the fatwa, such as the fatwa on liberalism, pluralism and secularism (emphasis added):
[T]he growth of the concepts of pluralism, liberalism and secularization of religion in the community arena has given rise to unrest so that sections of the community request the MUI to decree a fatwa in regard to the aforementioned problem
The prevalence of the, ‘community stability,’ theme across the preambles to the fatwas suggests that community stability was considered when writing the fatwas. The theme also presented itself in a uniform fashion: the spread of the minority belief was portrayed as a cause of community unrest. Finally, the fatwas which state that the community requested a fatwa indicate that the community plays a role in the resolution of the unrest created by the spread of the belief.
Justifications for the issuance of a fatwa which are based on community unrest or community requests must be read with scrutiny. The fatwas do not explain the nature of the community unrest, the time it happened or the place it happened. It may be that the community was unhappy with the practice for some time, only for the MUI to act on that sentiment at a time of its choosing. References to community unrest might also be construed as a euphemism for vigilante attacks against Muslim minorities perpetrated by Islamist groups like Front Pembela Islam or Hizbut Tahrir Indonesia. Finally, requests for a fatwa may be solicited by the MUI itself at a time when it takes issue with a particular Muslim minority. All of these factors complicate the relationship between the justification cited in the preamble and the explanation for why the fatwa was issued. This does not detract from the obvious semantic concern which is displayed in all five of the fatwas toward the community and its stability.
The second theme of the ‘purity of Islam’ was present in four of the fatwas.[56] The theme presented uniformly in all four of the fatwas; the fatwa highlighted that the minority belief had spread and that the minority belief departed from Islamic doctrine. One example is found in the fatwa on Al-Qiyadah Al-Islamiyah (emphasis added):
[R]ecently there has grown amongst the community the concepts of the al-Qiyadah al-Islamiyah sect which was founded by Ahmad Moshaddeq who among other things taught that the profession of faith is different from the teachings of Islam and the acknowledgement that there are new prophets after the Holy Prophet Muhammad SAW
In three of the fatwas, on Gafatar, Al-Qiyadah Al-Islamiyah and Shamanism, unrest in the community was linked with the way in which the minority belief departed from Islamic doctrine. This was most explicit in the fatwa on Shamanism:
[T]his aforementioned matter causes disturbance among the people and can lead the people to polytheistic activities (to be united with Allah), the greatest sin which is not forgiven by Allah SWT.
This highlighted an area of overlap between the themes on ‘purity’ and ‘community stability,’ because the code of, ‘community unrest’ was linked to the ‘purity of Islam.’ This suggested a connection between: (1) whether a belief caused community unrest and (2) whether the belief was considered a threat to the purity of Islam. As a result, the themes of community stability and purity were not mutually exclusive.
Similar to, ‘community stability,’ references to the spread of a belief must be read with scrutiny. The fatwas do not state the rate at which the belief has spread, they do not indicate the size of the community which adheres to the belief, nor do they state the amount of time for which this community has adhered to the belief. This silence obfuscates the connection between the spread of a belief in the community and the way it is discussed in the fatwa. It is possible that people have adhered to the belief for a long time, only for the MUI to issue a fatwa against the belief much later. Again, the omission of precise details about the spread of the belief does not negate the findings drawn from this analysis. All of the preambles to the fatwas display strong references to the stability of the community and the purity of Islam.
In this last section of the paper, I argue that the focus on community stability in the fatwas is similar to the focus on community stability which is displayed in adat law. This argument can be distilled into three claims. The first claim is a premise, proven in the preceding section, that the fatwas display deep concern with the stability of the community. The second claim is that the different systems of adat law across Indonesia also emphasise the importance of community stability, as do discursive constructions of adat law more generally. The third claim is comparative; it is argued that the emphasis on community stability in the fatwas is similar to the emphasis on community stability in adat law.
The definition of adat law was dealt with previously in this paper, but it bears reiteration for present purposes. Any attempt to define adat law must begin with the caveat that adat law systems are culturally confined.[57] On the other hand, different adat law systems do share common features. Hooker highlights that the basic structure of adat law is determined by relationships with the community and the land.[58] This situates the legal subject inside a network of relationships wherein legal obligation is defined with reference to one’s place in the community. In its basic structure, adat law is deeply concerned with the community.
Aside from its structural features, the nature of obligation in adat legal systems is also defined in terms of the community rather than the individual. Hooker insists that the individual is not the primary referent of adat legal systems.[59] He contrasts this against the individualistic conception of the self which underpins Western legal systems.[60] Hooker infers here that the community is the primary referent in adat law and that this is a feature of adat law in general, not just one particular adat law system. Both in the structure of the legal system and the content of its obligations, adat law is deeply concerned with the community.
Discursive constructions of adat law emphasise its concern with stability and harmony in the community. Henley and Davidson claim that adat ‘means “custom” or “tradition”, and carries connotations of sedate order and consensus.’[61] They recall that prominent figures in the Indonesian independence movement and students of the prolific Dutch legal theorist van Vollenhoven favoured constructions of adat which placed the community over the individual.[62] They further claim that political reactions to propaganda disseminated during the Japanese occupation also favoured a community orientated version of Indonesian nationalism, based in adat law.[63] This offers support for the view that adat legal systems are concerned with the stability of the community, not just in the form and content of their obligations, but also in the way that they are described or discursively constructed.
My next claim is that the focus on community stability in the fatwas of the MUI is similar to the emphasis on community stability in adat law. This comparison is grounded in a constructionist epistemology. Constructionist epistemologies consider that the meaning of language is shaped by other discourses operating in society.[64] Constructionists believe that the meaning of a given text can only be understood in light of the other meanings which feed into its language from other social and cultural structures in society.[65] The constructionist paradigm contrasts with realist or essentialist paradigms, which favour interpretations of the text which concentrate on explicit meaning.[66]
When interpreting the law through a constructionist epistemology, the comparisons which are drawn between different legal systems need not be based on explicit or visible interactions between those legal systems in the texts. The close analysis of fatwas in this paper identified the theme of community stability, however none of the fatwas explicitly referenced adat law. This was expected, because we know that ulama are opposed to explicit reliance on adat law.[67] A constructionist epistemology favours the comparison of adat law and fatwas in a context where it is unlikely that the two will interact at an explicit textual level.
The comparative study of adat law and the fatwas of the MUI was also grounded in the theoretical framework of legal pluralism. As addressed in the literature review, legal pluralism considers that both adat law and Syari’ah coexist as legal systems in their own right. These legal systems can be compared with one another outside of the confines of the state and its legal institutions, particularly outside of courts and positive law.
With that preparatory work complete, the third claim can be advanced, which is that the fatwas and adat law systems are similar in the way that they focus on community stability. This claim must begin with the aside that the shared focus on community stability is in itself an instance of similarity between the fatwas and adat law systems. Additionally, the fatwas are similar to adat law systems in the way that they focus on community stability.
Both the fatwas and adat law systems treat community stability as the object towards which the law is directed. This was proven true of adat law systems earlier in this section. The structure of adat law systems is centred on the community and the community is the object towards which law is directed. Obligations are defined in terms of relationships and the preservation of those relationships is the goal of those obligations. Discursive constructions of adat law also emphasise that it is orientated towards stability and harmony. These are the reasons why it is claimed that adat law is directed towards community stability.
In the fatwas, the theme of community stability presented itself uniformly, wherein stability was the object towards which the fatwa was directed. The fatwas all first noted the spread of the given belief in the community and then that the spread of the belief caused community unrest. This framed community unrest as one of the problems towards which the fatwa was directed, albeit not the only problem. With community unrest as one of its targets, the goal of the fatwa is to achieve the reciprocal set of circumstances, namely community stability. The mutual focus on community stability in the fatwas and adat law systems bears one important similarity: both treat community stability as the object of law.
There are obvious problems with this comparison which must be noted here. The scope of the, ‘community,’ to which the MUI fatwas refer is much broader than the community which is contemplated in adat law systems. Adat law systems belong to particular communities and are confined to that community, often a small rural community. In contrast, the MUI is concerned with the country at large, consisting of multiple communities of different sizes and compositions, all of which coexist and interact with one another. When we consider the way in which fatwas and adat law refer to and preserve the stability of the community, we must remain cognisant of the dramatically different scope in which these systems operate.
While I do not purport to solve this problem, it is also important to not overstate it. Perhaps the sort of community stability which is imbued in the structure and objects of adat law is unachievable in a pluralist democracy with a population over 200 million people. Perhaps this explains why many Indonesians think of adat law with nostalgia,[68] belonging as it does to a simpler time and place, one where we imagine that community stability was viable for a rural village. This does not negate the veracity of my argument that particular MUI fatwas display a deep concern with the stability of the community which is shared with adat law.
Scholars also advance a variety of other explanations for why the fatwas studied in this paper were issued, which are perfectly consistent with my argument. Some scholars demonstrate that fundamentalist groups influence the MUI through their participation in the MUI’s various committees.[69] Others highlight that the spread of progressive politics in Indonesia has precipitated a backlash from conservative leadership factions in the MUI.[70] The fatwas studied in this paper might be traced back to these explanations, whether fully or in part, while still preserving the argument which I advance. I do not set out to provide a comprehensive explanation for why the fatwas were issued, rather I only seek to demonstrate that the fatwas and adat law systems display a shared concern with community stability.
In this paper, I considered whether the fatwas of the MUI share the focus which adat law places on the stability of the community. Proceeding from the theoretical framework of legal pluralism, I identified the fatwas of the MUI as a site where I might locate similarities with adat law. In contrast to other sites of study, the fatwas of the MUI offered the opportunity to study interactions outside of the epistemic frameworks manufactured by positive law. On the other hand, the MUI holds strong ties to government and is not free of government influence.
Through an analysis of five fatwas issued against minority Islamic sects, the themes of, ‘community stability,’ and, ‘purity of Islam,’ were identified in the preambles to the fatwas. The theme of, ‘community stability,’ was compared with the focus on community stability in adat law. Analysing this theme in a constructionist paradigm, I argued that the focus on community stability in the fatwas is similar to the focus on community stability in adat law.
This paper stops short of arguing that the focus on community stability in adat law is the reason for the focus on community stability identified in the fatwas studied. That question is intentionally left open. The similarity between adat law and the fatwas identified in this paper raises a question of causation which could be pursued in further research.
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Cammack, Mark, ‘Indonesia’s 1989 Religious Judicature Act: Islamization of Indonesia or Indonesianization of Islam?’ (Research Paper No 63/1997, Southeast Asia Program Publications, Cornell University, April 1997)
Federspiel, Howard, Dictionary of Indonesian Islam (Ohio University Center for International Studies, 1995)
Hasyim, Syafiq, ‘The Council of Indonesian Ulama (Majelis Ulama
Indonesia, MUI) and Religious Freedom’ (irasec discussion papers no 12, irasec, December 2011)
MUI, Index Fatwa Majelis Ulama Indonesia (Database, 1 May 2019) <https://mui.or.id/>
NAATI, About (web page, 1 May 2019) <https://www.naati.com.au/>
The Oxford Dictionary of Islam (online at 1 May 2019)
[1] This paper is a revised version of a thesis submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours). The first version of the thesis was supervised by Associate Professor Melissa Crouch, Associate Dean Research at the UNSW Faculty of Law. Revisions of the thesis undertaken prior to publication were supervised by Professor Theunis Roux at the UNSW Faculty of Law. I want to express my thanks to both Associate Professor Crouch and Professor Roux for their ongoing support.
[2] Save for direct quotations, this paper adopts the spelling of Indonesian words from Howard M. Federspiel Dictionary of Indonesian Islam (Ohio University Center for International Studies, 1995).
[3] M.B. Hooker, Adat Law in Modern Indonesia (Oxford University Press, 1978) 41:
The concept of adat as a definer of a legal system is not a unitary structure. It is located in two different criteria – kinship and territorial organization – in defining the boundaries of its own system. This cannot imply a degree of logical unity but such is not in itself a fault or invalidation; the point was made at the beginning of this chapter than an adat law system could not be other than culturally confined.
[4] Federspiel (n 2) 6.
[5] David Henley and Jamie S. Davidson, ‘Introduction: Radical conservativism – the protean politics of adat’ in David Henley and Jamie S. Davidson (eds) The Revival of Tradition in Indonesian Politics: The Deployment of Adat from Colonialism to Indigenism (Routledge, 2007) 1, 1.
[6] Hooker 1978 (n 3) 28 (emphasis added): ‘Both these viewpoints [van Vollenhoven and Ter Haar] assume the adoption of Western law categories and the view that the primary referent for any law or legal system is the individual person. This is a view which later Indonesian writers have tended to reject.’ See also Mas Mukmin Djojodigoeno, Adat Law in Indonesia (Jajasan Pembangunan, 1952) 13, quoted in M.B. Hooker, Indonesian Islam: Social Change Through Contemporary Fatwa (Allen & Unwin, 2003) 28: ‘Individualistic and liberalistic views do not live in the minds of Indonesians... Being different from others is being strange, astonishing, wicked, condemnable.’
[7] Hooker 2003 (n 6) 33:
In essence [this chapter] is an attempt to describe the referents of the term ‘adat’ in the context of societies based upon what Sire Henry Maine described as the principle of status... The law is not a distinct and special sub-culture; the individual in a status society exists both as an existential and as a ‘legal’ object, a proposition which is by no means always true in Western jurisprudence.
[8] Ibid 35: ‘Leaving aside the question of sanction, the normative quality of the concept was, and to a large extent still is, seen as being culturally confined. In other words, the notion of obligation has a confined and specific existence relative to a particular culture.’
[9] Federspiel (n 2) 59:
Fatwa... A pronouncement by a qualified religious scholar on an issue of belief or practice. The decision is made in the context of past interpretations of other religious scholars of the same school of jurisprudence. The fatwa is not binding on any Muslim but is advisory of how the giver of the fatwa regards religious sources pertinent to the matter at hand.
[10] Ibid; Anver M. Emon, ‘On Reading Fiqh’ in Anver M. Emon and Rumee Ahmed (eds) The Oxford Handbook of Islamic Law (Oxford University Press, 2015) 45, 60-61.
[11] Ibid 61: ‘Fatwas, in other words, become the textual proxy for agency in the law, while fiqh is the textual proxy for a structure that highlights—given its relative stasis in the moment of the fatwa—the agency of/in/through the fatwa.’
[12] Ulama are ‘scholars of religious sciences in Islam and generally acknowledged leaders of the community in matters of religion; a term of high respect.’ Federspiel (n 2) 276. Ulama are consulted across the Islamic world by Muslims and lay people alike for guidance on leadership and religious matters: Mohamad Abdun Nasir, ‘The Ulama, Fatawa and Challenges to Democracy in Contemporary Indonesia,’ (2014) 25(4) Islam and Christian-Muslim Relations 489, 491.
[13] Nadirsyah Hosen, ‘Fatwa and Politics in Indonesia,’ in Arskal Salim and Azyumardi Azra (eds) Shari’a and Politics in Modern Indonesia (ISEAS Publishing, 2003) 168, 168.
[14] Ibid.
[15] Tim Lindsey, ‘Monopolising Islam: The Indonesian Ulama Council and state regulation of the “Islamic economy”’ (2014) 48(2) Bulletin of Indonesian Economic Studies 253, 256.
[16] Federspiel (n 2) 150.
[17] Ibid.
[18] Lindsey (n 15) 256, quoting Syafiq Hasyim, ‘The Council of Indonesian Ulama (Majelis Ulama Indonesia, MUI) and Religious Freedom’ (irasec discussion papers no 12, irasec, December 2011) 8.
[19] See The Oxford Dictionary of Islam (online at 1 May 2019) ‘Shariah’. This entry defines Syari’ah as ‘God's eternal and immutable will for humanity, as expressed in the Quran and Muhammad's example (Sunnah), considered binding for all believers.’ Federspiel broadly agrees that Syari’ah is based on the Qur’an and Sunah, adding that Syari’ah is theoretically unattainable. Federspiel (n 2) 251: ‘The holy law of God which Muslim conduct seeks to satisfy. Theoretically unattainable, it has inspired generations of legalists, who have sought to build a model syarit with rules of behaviour based on Qur’an and Traditions.
[20] See Federspiel (n 2) 213: The Q’uran is ‘the primary scripture of Islam which Muslims believe was revealed by Allah to Muhammad through the medium of the angel Jibrail.’
[21] Ibid 246. The Sunah is ‘“Way of the Prophet,” describing the style of life of the Prophet, especially his belief, his behaviour and his observance of religious obligations. Traditions (hadis), are individual records of the memories of Muhammad by his contemporaries. Sunah is the essence of those memories.’
[22] Fikih is the body of jurisprudence in Islamic law, which consists of interpretations of the Qur’an and Sunah. See Emon (n 10) 45; Federspiel (n 2) 59.
[23] See generally Oxford Dictionary of Islam (n 19). Hooker defines Syari’ah as ‘The “clear path”, the concept of law in its widest sense.’ Hooker 2003 (n 6) 263. Hooker also explains the relationship between Syari’ah, Qur’an and fikih in another context: M.B. Hooker, Islamic Law in Southeast Asia (Oxford University Press, 1984) 30-31.
[24] M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford University Press, 1975), 6.
[25] John Griffiths, ‘What is legal pluralism?’ (1986) 18(24) The Journal of Legal Pluralism and Unofficial Law 1, 9-10: ‘In short, [Hooker’s] definition of “legal pluralism” is a definition of the deviant situation in which state law “recognizes” some body of “customary law”... No definition of “legal pluralism” as an empirical phenomenon is being offered.’ See also Franz von Benda-Beckman and Kebeet von Benda-Beckman, ‘Legal Pluralism and Legal Anthropology: Experiences from Indonesia’ in Gary F. Bell (ed) Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of M.B. Hooker (ISEAS Publishing, 2018) 70, 74.
[26] Griffiths (n 25) 5.
[27] Hooker 2003 (n 6).
[28] Ibid 97:
The legal system itself, by making a provision for decisive adjudication, made a choice of law, and hence a conflict of laws, mandatory... In this respect it represented a violent change from traditional practice... The adat and Islamic systems though occasionally opposed – as in Minangkabau – were typically fluid as to their respective jurisdictions. Some parts of adat were regarded as part of shari’a.
[29] Hooker’s study focuses on the Ministry of Religion, the Supreme Court and the Islamic Courts: Ibid 98-104. Hooker recognises that these sites of study offer a relatively narrow view of the way in which adat law and Syari’ah interact. At 105: ‘The opposition of views just described is not how many people in Indonesia actually operate the rules... It is not common to find clear-cut applications of the rules (of adat and Islam) amongst the generality of the population.’
[30] Keebet von Benda Beckman, The Broken Stairways to Consensus: Village Justice and State Courts in Minangkabau (Foris Publications, 1984); John R. Bowen, ‘Equality, Difference, and Law in Indonesian Inheritance Practices: A Sumatran Case Study’ (1996) 19(1) PoLAR 83-90. See also Franz von Benda Beckman and Keebet von Benda Beckman, Political and legal transformations of an Indonesian polity: the Nagari from colonisation to decentralisation (Cambridge University Press, 2013); Renske Biezeveld, ‘The many roles of adat in Western Sumatra’ in Jamie S. Davidson and David Henley (eds), The revival of tradition in Indonesian politics: the deployment of adat from colonialism to indigenism (Routledge, 2007) 203, 206-208.
[31] Ido Shahar, ‘A Tale of Two Courts: How Organizational Ethnography Can Shed New Light on Legal Pluralism’ (2013) 36(1) PoLAR 118, 124-129.
[32] Hooker 2003 (n 6).
[33] Ibid viii.
[34] Ibid 9-10.
[35] Ibid 12-13, 34.
[36] Ibid 232:
‘The Muhammadiyah, as might be expected, refuse outright to accept adat that has legal consequences already provided for in fiqh. The NU, on the other hand, has been inconsistent over the years, and present practice, insofar as it can be identified to any degree, is rather anti-adat.’
[37] Peter Burns, The Leiden Legacy: Concepts of Law in Indonesia (KITLV Press, 2004), 1-2: ‘Van Vollenhoven held that the legal values of indigenous communities in the Indies were something other than a pale reflection of Islamic law. On the contrary, he held they were distinctively Indonesian.’
[38] Ibid 2-41.
[39] Mark Cammack, ‘Indonesia’s 1989 Religious Judicature Act: Islamization of Indonesia or Indonesianization of Islam?’ (Research Paper No 63/1997, Southeast Asia Program Publications, Cornell University, April 1997) 146:
The priority given to adat over Islam found legal expression in the so-called reception theory, which holds that Islamic rules have the force of law only insofar as they have been received into the local adat. Apart from the doctrine's practical significance in restricting the applicability of Islamic law, shariah oriented Indonesians have, since its inception, considered the reception theory especially pernicious because of its denial of any independent standing for Islam.
[40] Ibid. See also Hooker 2003 (n 6) 231:
‘Real’ and ‘nominal’ Muslims: this was a common 19th- and 20th-century label and formed an important part of Dutch colonial thinking... It rested on the fact that in important areas of life (especially property) the fiqh rules did not determine legal obligation. Instead, adat (custom) was the operative system... The distinction was and is unsustainable.
See also M.B. Hooker, ‘Introduction: Islamic Law in South-East Asia’ (2002) 4(3) Australian Journal of Asian Law 213, 218-219.
[41] Lindsey (n 15) 262.
[42] Stuart Fenwick, ‘Eat, Pray, Regulate: The Indonesian Ulama Council and the Management of Islamic Affairs’ (2018) 33(2) Journal of Law and Religion 271, 278, 285.
[43] Melissa Crouch, ‘Negotiating Legal Pluralism in Court: Fatwa and the Crime of Blasphemy in Indonesia’ in Gary F. Bell (ed) Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of M.B. Hooker (ISEAS Publishing, 2018) 231, 239-50.
[44] Ibid 235.
[45] See generally Ratno Lukito, Legal Pluralism in Indonesia: Bridging the Unbridgeable (Routledge, 2012).
[46] Ibid, discussed in Ratno Lukito, ‘Mapping the Relationship of Competing Legal Traditions in the Era of Transnationalism in Indonesia’ in Gary F. Bell (ed), Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of M.B. Hooker (ISEAS Publishing, 2018) 90, 92-94.
[47] Emon (n 10) 61; Hooker 2003 (n 6) viii.
[48] Lindsey (n 15).
[49] See, e.g. Lindsey (n 15) 257-259. Cf. Hosen 2004, ‘Behind the Scenes: Fatwas of Majelis Ulama Indonesia (1975-1998)’ (2004) 15(2) Journal of Islamic Studies 147, 154-155.
[50] See, e.g. Piers Gillespie, ‘Current Issues in Indonesian Islam: Analysing the 2005 Council of Indonesian Ulama Fatwa No. 7 Opposing Pluralism, Liberalism and Secularism’ (2007) 18(2) Journal of Islamic Studies 202, Stuart Fenwick (n 42) 279-282; Norshahril Saat The State, Ulama and Islam in Indonesia and Malaysia (Amsterdam University Press, 2018) 132; Syafiq Hasyim, ‘Majelis Ulama Indonsia and pluralism in Indonesia’ (2015) 41(4-5) Philosophy and Social Criticism 487, 490-494.
[51] See MUI, Index Fatwa Majelis Ulama Indonesia (Database, 1 May 2019) <https://mui.or.id/>.
[52] MUI, ‘2/Munas VII/MUI/6/2005 Perdukunan (Kahanah) dan Peramalan (‘Irafah)’ Index Fatwa Majelis Ulama Indonesia (Fatwa, 19-22 July 2005) <http://mui.or.id/wp-content/uploads/files/fatwa/11.-Perdukunan-Kahanah-Dan-Peramalan-Irafah.pdf> MUI, ‘7/Munas VII/MUI/11/2005 Pluralisme, Liberalisme, Sekularisme Agama’ Index Fatwa Majelis Ulama Indonesia (Fatwa, 28 July 2005) <http://mui.or.id/wp-content/uploads/files/fatwa/12.-Pluralisme-Liberalisme-dan-Sekularisme-Agama.pdf> MUI, ‘11/Munas VII/MUI/15/2015 Aliran Ahmadiyah’ Index Fatwa Majelis Ulama Indonesia (Fatwa, 26-29 July 2005) <http://mui.or.id/wp-content/uploads/files/fatwa/13.-Aliran-Ahmadiyah.pdf> .
[53] MUI, ‘4 Tahun 2007 Aliran Al-Qiyadah Al-Islamiyah’ Index Fatwa Majelis Ulama Indonesia (Fatwa, 3 October 2007) <http://mui.or.id/wp-content/uploads/files/fatwa/14.-Aliran-Al-Qiyadah-Al-Islamiyah.pdf> MUI, ‘6 Tahun 2016, Fatwa Tentang Aliran Gafatar’ Index Fatwa Majelis Ulama Indonesia (Fatwa, 3 February 2016) <http://mui.or.id/wp-content/uploads/files/fatwa/Fatwa-GAFATAR.pdf> .
[54] NAATI is the National Accreditation Authority for Translators and Interpreters Limited. It is a limited liability company jointly owned by the state and federal governments of Australia. NAATI Certification is, ‘an acknowledgement that an individual has demonstrated the ability to meet the professional standards required by the translation and interpreting industry in Australia.’ See NAATI, About (web page, 1 May 2019) <https://www.naati.com.au/>.
[55] These were the fatwa on the Ahmaddiyah, the fatwa on liberalism, pluralism and secularism and the fatwa on Al-Qiyadah Al-Islamiyah.
[56] This theme was identified in all fatwas, save for the fatwa on liberalism, pluralism and secularism.
[57] Hooker 1978 (n 3) 33, 41.
[58] Ibid 34 (emphasis added): ‘The basic structure of any adat system is, therefore, determined by the nature of the individual’s kinship relationships with his fellows – as in clan structure – or his relationship in respect of a defined area of land where questions of occupation, possession or ownership are primary – as in the Javanese village.’
[59] Ibid 28 (emphasis added): ‘Both these viewpoints [van Vollenhoven and Ter Haar] assume the adoption of Western law categories and the view that the primary referent for any law or legal system is the individual person. This is a view which later Indonesian writers have tended to reject.’
[60] Ibid.
[61] Henley and Davidson (n 5) 1.
[62] Ibid 20-21 (emphasis added, citations omitted): ‘[Holleman and Supomo] made adat fit for incorporation into nationalist ideology. The central theme here was the so-called ‘communal trait’ in adat, its emphasis on harmony, solidarity, and the ‘good of the community as a whole’ above the protection of individual rights.’
[63] Ibid 21 (emphasis added, citations omitted):
During the Japanese occupation (1942–5), a further complementary influence was imperial propaganda emphasizing the common values and destiny of Asian peoples. The net result was a powerful current of political thought which identified ‘communalism’ or ‘collectivism’, as opposed to Western individualism, as the key to the Indonesian ‘national personality’.
[64] This epistemological approach is described in the introduction to thematic analysis in Virginia Braun and Victoria Clarke, ‘Using thematic analysis in psychology’ (2006) 3(2) Qualitative Research in Psychology 77, 81, 85. This approach to thematic analysis was adopted in a wide range of fields, including socio-legal studies. See, e.g. Jane Herlihy, Kate Gleeson and Stuart Turner, ‘What Assumptions about Human Behaviour Underlie Asylum Judgments?’ (2010) 22(3) International Journal of Refugee Law 351, 356.
[65] Braun and Clarke (n 64) 81, 85.
[66] Ibid.
[67] Hooker 2003 (n 6) 231-232.
[68] Henley and Davidson (n 5) 33.
[69] Lindsey (n 15) 260-261.
[70] Gillespie (n 50) 210-211.
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