LEGAL PLURALITY—CUSTOMARY, ISLAMIC AND WESTERN LAW
• Indonesian legal system is a combination of several legal systems
• Customary law, Islamic law and Western law
• Comparison according to Mohammad Koesno (1980):
CUSTOMARY LAW ISLAMIC LAW
Circumstances
• Have existed for a very • Introduced along with the
long time, exact date propagation of Islam,
difficult to determine precise date debatable
(some say around the 7th
• Clearly the oldest or 13th century AD)
prevailing legal system
• Adhered and practiced
• Prior to 1927—existence by Islamic followers ever
was rather lack luster, since its propagation
existed and grew among
indigenous communities • Throughout the Dutch
occupation, development
• After 1927—studied by of Islamic law was
the Dutch to be “controlled”, and after
implemented in the 1927 was supressed
society
Profiles
• Conventions of unwritten • Islamic law—may refer to
law 1) fiqh law;
2) syariat law;
• Grew and developed, 3) unwritten conventions
sometimes disappear as (customary law)
indigenous societies
developed too • Islamic law not codified
into the regulations
• There was effort to
elevate and codify • Fiqh law not given the
customary law—UU same status not given
Pokok Agraria (1960) the same status as
syariat law but is obeyed
• Codification changes by the Islamic community
form of the law, turns it through volition and
into a regulation convictions of Islamic
leaders
• Now has a written form—
Compilation of Islamic
Law (1991)
WESTERN LAW
• Introduced along with the
arrival of Dutch traders
• Initially only applicable to
the Dutch and other
Europeans, nevertheless
the provisions became
valid and binding to those
deemed equal to the
Europeans (i.e. foreign
Easterners and a certain
group of Indonesians)
• As the law of the ruling
elite, Western law
enjoyed a higher status
than customary and
Islamic law
• Civil law written in Dutch
in codes of law
• Because Western law is
a translation of the
original Dutch version, it
does not have the
binding power that a law
does
• However, legal practices
in Indonesia have turned
it into a “quasi” written
law
• Because it has been
translated, the content
and meaning of articles
have deviated a little bit
from the original Dutch
version

• To bring about a safe,
peaceful and prosperous
life for the members of
the community
• Rulings made by the
head of adat or traditional
community
• According to Prof.
Koesnoe—real
behaviors that exist in the
day-to-day life of the
community, the real
concept of the traditional
customary law itself
• The awareness of the
society in regards to law
and order that were
inherent within the adat
community
• Social sanctions—feeling
of shame or disgrace
experienced when
someone violates a law
• The awareness of the
society in regards to law
and order
Structural theory—
Minangkabau law
1. Adat sabana nan
sabana adat—real and
genuine adat or custom.
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Objectives
• To carry out the wishes • To obtain certainty and
and behest of Allah and justice in legal matters
to stay away from His
prohibitions
• 5 objectives, to maintain:
1) Religion
2) Soul
3) Common
sense/judgment
4) Heredity
5) Property/possession
Source of Identification
• Syariat law—Quran and • Rules and regulations
various books on Hadith from the colonial area
(God’s words and the and all their amendments
Sunnah of Muhammad) and revisions as stated in
the Staatsblad (State
• Fiqh law—books on fiqh Gazette)
containing the results of
ijtihad by Islamic legal
scholars
Source of Content
• Syariat law—word of • Drafted and written in
Allah in the form of accordance with the
revelations in the Quran requirements made by
and the Sunnah the legislative agency in
• Fiqh law-- word of Allah the Netherlands in the
in the form of revelations past
in the Quran and the
Sunnah and results of
ijtihad
Source of Binding
• Faith and level of piety or • Authority of the state that
devotion (takwa) of a enacts a particular law or
Muslim regulation
Structure
1. Nas (the authoritative 1. Code books prepared by
text) of the Quran the legislative body
2. Sunnah of the 2. Rulings made by law
Muhammad enforcements drawn from
3. Results of ijtihad gained the code books
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The law of nature, by qualified persons 3. Verdicts born from

originate from life 4. Actual application (in rulings
experiences and concreto) by the Muslim
thoughts—not made by community
either man or forefathers.

2. Adat pusaka—what is
gained from adat nan
sabana adat. Formulated
by forefathers. Divided
into:
✓ Adat-istiadat
✓ Adat nan teradat
✓ Adat nan diadatkan

Application theory
1. Adat istiadat—thesis,
suppositions, arguments
and teachings regarding
how a person should
behave in their
community. Serves as a
basis for developing
other adat laws.

2. Adat nan teradat—

teachings and
suppositions put into
more concrete structures,
i.e. marriage, inheritance,
buying and selling.

3. Adat nan diadatkan—

actualization of adat in
the life of community

Scope of Issues
• Only regulate human-to- • Regulate worship and • Only regulate human-to-
human relationship and muamalah human relationship and
between humans and between humans and
authoritative figures in • Consequences are authoritative figures in
society worldy but also hereafter society

• Consequences are • Consequences are

wordly and temporal wordly and temporal
Grouping or Classification According to Subject or Field
• Does not differentiate • Does not differentiate • Recognizes
public and private public and private differentiation of public
matters matters and private law

• Principles of harmony, • Classified into two— • Civil law—legal

decency, suitability in ibadah and muamalah provisions governing and

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social intercourse & protecting civil interests

religious mystic in • Ibadah—worship,
character relationship between
humans and God
• Muamalah—relationship
between humans and
between humans and
inanimate objects
Rights and Obligations
of opposing parties
• Public law—legal
provisions governing and
protecting public
interests, defended by
state apparatus

- Obligations over rights Rights over obligations

Norms of Principles of Law

- • Three norms or • Five norms or principles,
principles: al ahkam al hamsah:
1) Impere (order) 1) Fard (obligation)
2) Prohibere 2) Sunnah
(prohibition) (recommended)
3) Permittere (allowed) 3) Ja’iz/mubah/ibahah
(something allowed)
4) Makruh (denounced)
5) Haram (prohibited)

RELATIONSHIP BETWEEN CUSTOMARY LAW AND ISLAMIC LAW

• Reflected in the proverbs and phrases of various regions
• There are conflicts between the two—customary law is based on realities of law in
the society, but Islamic law is based on a code of law created by human reasoning
• Points of contradiction according to Western jurists:
1. Marriage:
▪ Islamic law—contract between persons, sees marriage as a mean of
fostering love and affection
▪ Customary law—simply to connect two families

2. Inheritance
▪ Regarded as having conflicting regulations
▪ We do not see this in Minangkabau—for high-acquired inheritance
from maternal line regulated by adat law, but low-acquired inheritance
regulated by Islamic law
• In Aceh, the theory of Receptie a Contrario applies—customary law only applies if it
does not contradict Islamic law
• In Minangkabau, Islamic law is the perfection of customary law, if there are disputes
then Islamic law is used as a measure
• From the perspective of Al-Ahkam Al-Khamsah, customary law can be applied as
long as not contradicting with aqidah—categorized into jaiz or mubah
• In fiqh books, customs is a tool or method of the creation of Islamic law through ‘urf

Requirements for customs to become Islamic law (Sobhi Mahmassani):

1. Can be accepted by the feelings and common sense, recognized by public opinion

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2. Repeatedly occurs and is prevalent in the society concerned

3. Has existed at the time of transaction
4. No approval or other choices between the two parties
5. Not contradicting the Quran and Sunnah of the Prophet

STATUS OF ISLAMIC LAW IN THE INDONESIAN LEGAL SYSTEM

• Islamic law prescribed in the legislation can apply directly without having to go
through customary law
• Indonesia can arrange any matter according to the Islamic law as long as this
arraignment only applies to the followers of Islam
• The position of Islamic law in the Indonesian legal system is the same and equal to
customary law and Western law
• Islamic law becomes the source of the establishment of national law

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PRINCIPLES OF ISLAMIC LAW

Principle:
Foundations of thoughts, a truth that becomes the foundation of thinking, a benchmark.

A. GENERAL PRINCIPLES
1) Justice: a process and the goal of Islamic law. Being fair regardless of social
status, background/origins and beliefs. Not subjective in making decisions, be
straight in upholding the law, regardless of oppression, threats or enticements.
Legal basis—An-Nisa (4):135, Al-Maidah (5):8

2) Legal certainty: no single act can be punished unless legalprovisions are

stipulated and applicable for such action.
Legal basis—Bani Israil (17):15, Al-Maidah(5):95

3) Utility: usefulness must always be considered. Punishments sentenced to

defendants must benefit the community. If no penalty is more beneficial for the
defendants and families or witnesses, penalty might be replaced with
compensation (diyya) paid to victim’s family.
Legal basis—Al-Baqarah (2):178

B. PRINCIPLES IN ISLAMIC PRIVATE LAW

1) Permissibility (ibahah/mubah): allowing all civil relationships or interactions as
long as the relationship does not conflict the Quran or the Sunnah.

2) Utility for life: any civil relationship that brings advantages, goodness or benefits
of life is acceptable, even if the Quran and Sunnah do not regulate them.

3) Freedom and voluntary: civil relations must be conducted freely and voluntarily.
Parties can only develop relationships under mutual consent.
Legal basis—An-Nisa(4):29

4) Avoidance of harm and taking advantage: any harmful civil relationship

(mudarat) should be avoided and any beneficial civil relationship should be
developed. Avoidance of harm preferred over profit.

5) Righteousness (kindness): Any civil relationship should be developed not only

for the good of both parties but also for the good of the third party in the
community. Kindness for the sake of togetherness.
Legal basis—Al-Maidah(5):90

6) Familiarity or togetherness in equality: any civil relationship should be based

on respect, love and cooperation to reach a common goal. Two parties should
treat each other like family.
Legal basis—Al-Maidah(5):2

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7) Fair and balanced: civil relationships must not contain elements of fraud,
oppression, or taking advantage over the hardships of other people. Outcome
should be balanced with effort and endeavor (ikhtiyar).

8) Giving precedence to obligations over rights: any party involved in a civil

relationship should give greater priority to the fulfilling of obligations instead of
demanding for rights.

9) Prohibition of harming oneself and others: parties that engage in civil

relationship should not bring detrimental effect upon themselves or others in their
civil relationship. Damaging or destroying property to achieve price stability or
economic equilibrium not justified in Islamic law.
Legal basis—Al-Baqarah(2):188, 195, etc.

10) Ability to act: individuals are qualified to be a subject of civil law if they are
capable of developing civil relationships (known as mukallaf). Requirements of
mukallaf: physically and mentally healthy, able to carry out obligations and
exercise rights.

Principle is violated if law is applied to those not able to carry out

obligations/exercise rights. Civil relationship loses legal force, deemed null and
void.

11) Freedom to enterprise: everyone have the freedom to produce something good
for themselves and their family. Everyone has ample opportunity to enterprise
without limit except prohibited by Islamic law.

12) Entitlement over the result of business and services: individuals are entitled
to obtain their rights based on their businesses and services, carried out
individually or collectively with others. Business and services should be unlawful,
heinous or dirty.
Legal basis—Al-An’am(6):164, Al-Anfal(8):26, etc.

13) Protection of rights: any rights gained from permissible (halal) and proper
manner should be protected. Violation of right of one party means they are
entitled to demand repayment of damages.

14) Social function of property: property should not only be used for personal
interests, but also to promote social welfare. Property must be redistributed as
zakat for the benefit of the poor.
Legal basis—Al-Tawbah(9):60, Al-Hashr(59):7

15) Protection for those with good faith: if a party is ignorant about any hidden
defects and has good faith in the relationship, then the interest of such party
should be protected. They are entitled to demand retribution for any detrimental
impact due to their good faith.

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16) Risk should be incurred to the property, not the employees: if a company
suffers loss, the loss should only incur to the owner of capital or property. The
workers should be protected, and their wages should still be guaranteed by the
company.

17) Regulating and giving guidance: provisions of civil law only regulates and
guides civil relationships (except for ones that are compulsory [ijbar]). Parties
could choose to enact provisions freely, as long as they do not contradict the
Islamic law.

18) Agreement in written or oral in the presence of witnesses: a civil relationship

should be conducted in written agreement in the presence of witness, or orally
under certain conditions. Witnesses must qualify in quantity and quality.
Legal basis—Al-Baqarah(2):282

C. PRINCIPLES IN ISLAMIC MARRIAGE LAW

1) Voluntary: voluntary between the husband, wife and their parents.

2) Consent of both parties: should not involve coercion to any of the two sides.
Parents of a man should seek approval from the woman’s parents.

3) Freedom to choose a partner: individuals should be able to choose their own

spouses and marry the person they love.

4) Teamwork in marriage: Husband and wife have different responsibilities that

complete each other. Husband is the head of the household, while the wife
manages the household.

5) Everlasting: marriage is forever, and designed to produce offspring and develop

love and affection. Marriage just for enjoyment is not allowed.

6) Open monogamy: only breached in emergencies. A man is allowed to have

more than one wife as long as he is able to treat them equally.

D. PRINCIPLES IN ISLAMIC INHERITANCE LAW

1) Ijbar (compulsory): inheritance of property should prevail without reliance on
will/testament. Property is automatically assigned to inheritors, the proportion of
the share is pre-determined, and the inheritors are also determined with certainty.
Inheritors inherit by blood (nasab) and relationship with testator.

2) Bilateral: someone is entitled to receive inheritance from both the paternal and
maternal side of the family.
Legal basis—An-Nisa(4):7, 11, 12 & 176

3) Individual: inheritance is shared among each inheritor. Each of them privately

owns theirs.

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4) Fair justice: rights and obligations shall be balanced. The rights one enjoys
depend on the responsibilities that he/she takes.

5) Consequence of Death: inheritance occurs after a person with wealth or of

wealth dies. Inheritance is the result of death.

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PRINCIPLES IN ISLAMIC CRIMINAL LAW

1) Legality: there is no offense and punishment without pre-existing regulations.
Legal basis—Al-Isra (17):15, Al-An’am (6):19

2) Prohibition of transferring burden to others: “Every soul, for what it has earned,
will be retained and one will not bear the burdens of another.” One’s burden (sin)
cannot be transferred to others, because criminal responsibilities are individual.
Legal basis—Al-Muddaththir(74):38, Al-An’am(6):164

3) Presumption of innocence: a person accused of a crime must be

considered/presumed innocent until a judge, with convincing evidence, declares that
the person is guilty.

TYPES AND CATEGORIZATION OF CRIMINAL OFFENSE

A. ALLAH RIGHT
B. HUMAN RIGHT
C. SULTHON RIGHT

VERIFICATION AND EVIDENCE

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RELIGIOUS COURT PROCEEDINGS

• Court proceedings : the process of dispensing justice in an institution called a court
• Court : the institution which accept a case, conduct a hearing on a case, try a case,
settle a case
• Religious court : the process of dispensing justice in accordance with the norms of
Islamic law for the followers of Islam
o Carried out in the religious court and religious high court
• Religious court :
o In its simple form is known as tahkim : a body charged with settling disputes
among Muslims
o It used to have different names or callings (in Java and Madura - south and
east Kalimantan)= changed into a single designation, called religious court
o However they have different authorities :
• The R.C.in Java and Madura cannot settle matters related to
inheritance and wakaf = due to the reception theory
• The R.C. in Kalimantan and outside those areas maintained their
authority with regard to inheritance matters and wakaf : known as
waris mal-waris

COMPETENCE
• Regulated in Chapter III—duty and authority of the religious court
• Ikhtisar over matters of:
o Marriage (i.e. permission to have more than one wife, permission to get
married before the age of 21, etc.)
o Inheritance, testaments, hibah
o Wakaf, shadaqah

PROCEDURAL LAW
• Regulated on Chapter 4 of the Procedural Law—applicable in religious courts in the
Civil Procedure Code
• Each decision must begin with the sentence Bismillahirrahmanirrahim, followed by
“Demi keadilan berdasarkan Ketuhanan Yang Maha Esa”

COURT STRUCTURE AND ORGANIZATION

• The court's structure (chapter II): outlined in 3 sections;
o First / General section:
Describes the composition of religious court, which consists of:
✓ Leaders
✓ Members of the judge's council
✓ Clerk
✓ Secretary
✓ Bailiff (juru sita)

Describes the composition of religious high court, which consists of:

✓ Leaders

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✓ High judge as a member

✓ Court's clerk
✓ Court's secretary

o Second section:
Terms and conditions, procedures for appointment, termination of members of
religious court.
➢ Prerequisites in order to have a position in the religious court : Describes
the composition of religious high court, which consist of:
✓ Must be Muslim
✓ Have a law degree, well versed in Islamic law

o Third section:
The position of the secretary who chairs the court's secretariat within the religious
court.

Structure of types of religious courts:

• RELIGIOUS COURT (trial court) →
RELIGIOUS HIGH COURT (appeal) →
SUPREME COURT (cassation)

• SHARIA COURT/MAHKAMAH SYARIAH (trial court) →

ACEH SYARIAH COURT (appeal) →
SUPREME COURT (cassation

PRINCIPLES OF RELIGIOUS COURT

1. Islamic personality
• According to article 49 Law no.3 year 2006 : religious court only serve
disputes concerning inheritance, zakat, waqaf, infaq, and sharia economy of
Muslims
• The relationship that happened between the two parties must be based on
the Islamic law

2. Keislaman seseorang adalah dasar kewenangan pengadilan ini

3. Principle of freedom / independence

• No other party can intervene the settlement of the case

4. Not rejecting cases with no pre-existing regulations

• If there is no provisions or regulations on a certain case, the judge must do
ijtihad and try to find the law for that particular case

5. Principle of reconcile
• Islam is prioritizing peace and reconcilement in dealing with disputes

6. Simple, quick, and low cost

7. Open for public; in order to:

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• Prevent any deviations

• Social control on the judge's duty and authority
• Giving education to the people
• The people can see and learn on which one is good and which one is bad
However, there is an exception on cases which are secretive or private, i.e:
divorce,case involving children

8. The judge must give help

OTHER DISPUTE-SETTLING INSTITUTIONS OUTSIDE THE COURT

Alternative methods:
a. Consultation— a "personal" action between a particular party (client) with another
party who is a consultant, in which the consultant gives his opinion to the client in
accordance with the of his client
b. Negotiation— an attempt to resolve the disputes of the parties without going through
litigation with the aim of reaching mutual agreement on the basis of more harmonious
and creative cooperation
c. Mediation— way of dispute settlement through negotiation process to achieve
agreement of the parties assisted by mediator
d. Conciliation— the mediator will act as a conciliator by agreement of the parties by
seeking acceptable solutions

Arbitration:
• Means of settling of private disputes outside of the general court based on arbitration
agreements made written by the parties in dispute (Article 1 of Law on Arbitration)

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QANUN
Qanun:
• Regulation of law similar to regional regulations
• Governs the Aceh government and Aceh community life
• Two types of Qanun:
o Qanun Aceh—applies in the entire province of Aceh. Authorized by the
Governor upon approval from the Aceh House of Representatives.
o Qanun Kabupaten/Kota—applies only in a certain district/city. Authorized by
the regent/mayor upon approval from the District House of
Representatives/City House of Representatives.
• Allows regional leaders to make their own regulations for activities not addressed by
the sharia

Formation of Qanun:
1. Submission of bills of qanun
2. Discussion of the substance of the bills
3. Ratification of the bill by Representatives
4. Promulgation by governor/regent/mayor
5. Dissemination of the qanun to the public

KOMPILASI HUKUM ISLAM (KHI)

Kompilasi Hukum Islam:
• A collection of Islamic legal norms organized systematically
• Consists of three books
o Book 1—marriage law
o Book 2—inheritance law
o Book 3—waqf law
• Consists not only existing Islamic regulations but also new legal norms developing in
the society

Purpose of the KHI:

• Unites view of judges of religious courts in Indonesia in settling cases
• Fulfill the principle of utility and fairness/justice contained in Islamic law
• Overcoming problems of differences of opinion
• Become a raw material and having an active role in the development of national law

Implementation of the KHI:

• Through presidential instruction no. 1/1991, KHI was determined as the guide for
government agencies and the people
• Ministry of Religion through its decision no. 154/1991 asks for the permission to
disseminate the KHI

Formation of KHI:
• The committee compiled provisions of Islamic law through 4 paths:

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1. Study of fiqh scriptures with the help of the teaching staff of IAIN Syariah
faculty
2. Study of the opinions of ulama where ulamas were contacted, interviewed
and the results recorded to use as material input for the compilation
3. Study of jurisprudence through study of the decisions of Indonesian
religious courts
4. Comparative study on the implementation and enforcement of Islamic law in
other Muslim countries
• After that, the committee logically and systematically incorporated the results into the
articles of the KHI with simple, understandable and brief words

KOMPILASI HUKUM EKONOMI SYARIAH (KHES)

Sources of the KHES:
• Fiqh books
• Kitab Undang-Undang Hukum Perdata Islam
• Peraturan Bank Indonesia
• Fatwa-fatwa Dewan Syariah Nasional
• Etc.

Formation of the KHES:

• Supreme Court formed the Drafting Team on 20 October 2006
o Team headed by Prof. Abdul Manan
o Duty of team: collect and process necessary materials, draft the complation,
hold discussions regarding the draft, refine the draft
• In 2007 a rough draft was formed, consisting of 1015 articles
o Still many loopholes, overlapping articles
o Substance too elaborate
• In 2008 legislated through the Decision of the Supreme Court no. 02/2008 on the
Compilation of Economic Syariah Law

Structure:
• About subjects of law and anwal—3 chapters (Article 1-19)
• About agreements—29 chapters (Article 20-673)
• About Zakat and Hibah—4 chapters (Article 674-734)
• About Sharia Accounting—7 chapters (Article 735-796)

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RELATIONS BETWEEN RELIGION, THE STATE AND LAW

Between religion and state:
• Close ties, seen from the period of the Medina state
• Based on the principle of hablun min Allah wa hablun min al nas
• The Islamic nomocracy is a legal state which adopts the principles of:
✓ Power as a mandate
✓ Discussion
✓ Justice
✓ Equality
✓ Recognition and protection of human rights
✓ Free court/judiciary
✓ Peace
✓ Welfare
✓ People’s obedience

Between the religion and law:

• Syariah (Quran and the Sunnah) acts as a source of law
• The substance of law includes normative rules on behavior and morality—is
manifested in al Ahkam al Khamsah
• Law helps implement religion—for prosperity in the world and happiness in the
afterlife

THEORY OF CONCENTRIC CIRCLE:

• Theory of concentric circle—relationship between state, law and religion in an Islamic

point of view
• Circle consisting of three components—all of these components: a unity, related to
one another
• Religion:
o Religion is the middle-most circle because has significant impacts on state
law--main source

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• Law:
o The substance of law must reflect akidah, sharia and akhlak
o Contains normative and moral elements
• State:
o Includes law and religion
o The position of state as the outermost circle does not mean it is least
significant—it means that it limits/confine law and religion

MEDINA CHARTER
• Also known as the Constitution of Medina
• Drafted by the Islamic prophet Muhammad shortly after his arrival at Medina
• First written constitution in the Islamic world

Purpose of the Medina Charter:

• Response to the plural society of Medina
• To establish rules complied by all of the people of Medina
• Provide elements to unite people of various races and establish peace and eliminate
histility

Main points of the Medina Charter:

• The declaration that the Prophet Muhammad is the head of state to all the people of
Medina and any dispute shall be referred to him
• All the people of Medina is forbidden to plant a hostile or envy among themselves,
instead they should be united as one and be known as nation of Medina
• All residents are free to practice their customs and religious ceremonies respectively
• All residents of Medina should cooperate in economic and if Medina to be attacked
by outsiders all the citizen shall defend its
• The Jews freedom are guaranteed as long as they obey the agreements listed in the
charter
• Emphasis on individual responsibility

Points on human rights:

• Protect rights of immigrants and recovery of their property
• Freedom of movement and right to live in Medina
• Government duty in upholding social justice
• Security laws
• Religious freedom to non-Muslims

ISLAMIC LAW AND HUMAN RIGHTS

• Islamic law protects human rights
• Western law views human rights only anthropocentrically (human-centered)
• Islamic law views human rights theocentrically (God-centered)
• Human rights is protected in the Cairo Declaration of Human Rights and the
Declaration of Human Rights of OKI (Organisasi Kerjasama Islam)

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OKI Declaration of Human Rights:

• All rights and freedom formulated in the declaration is subject to Islamic law:
✓ Right of economic policies
✓ Political rights must not go against syariah principles
✓ All individuals are equal before the law
✓ Family is the basis of the society—men and women are equal
✓ Right of life, individual rights (i.e. work, healthcare, social care, decent life)
are guaranteed
✓ No sanctions except sanctions specified in the Sharia or Islamic law

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