The Supreme Court and Adat Inheritance Law in Indonesia

The Supreme Court and Adat Inheritance Law in Indonesia
Author(s): Daniel S. Lev

Source: The American Journal of Comparative Law , Spring, 1962, Vol. 11, No. 2
(Spring, 1962), pp. 205-224
Published by: Oxford University Press
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DANIEL S. LEV
The Supreme Court and Adat Inheritance

Law in Indonesia
The turbulence of post-revolutionary history in Indonesia h
permitted national leaders much time for the more humdrum
of legal reform. Indonesia's legal system remains structurally
as it was before Dutch colonialism in the archipelago came to
But the structure of a legal system takes on the significance that
give to it, and Indonesia's legal system is now operated by Indon
not Dutchmen. This has been particularly important for Ind
customary (adat) law, which is more susceptible to the changing
and imagination of the country's elite than the written codes
absence of legislative action, the ideals and goals of the post-
tionary elite have been brought to bear on adat law by judge
marily the judges of the Supreme Court. For this to happen,
changes have been necessary in the conceptions Indonesian
have of their own role in adat law. This article is concerned with
influence of these two developments on adat inheritance case law
Indonesia's pre-war legal and judicial systems were pluralistic,
separate civil law and courts for the colony's distinct racial
Europeans, Indonesians, Chinese and other non-Indonesian A
The plural court system disappeared during the Japanese occ
(1942-1945), and only one law of procedure was retained af
Revolution began in 1945, but otherwise plural civil law has cont
For Europeans there are civil and commercial codes, which als
in varying measures to Chinese, Christian Indonesians, and other
have assimilated, in whole or in part, to European legal statu
civil law behavior of most Indonesians is governed by adat
order to understand the position of adat law in Indonesia, and th
tionship of judges to it, it is necessary to know something a
pre-war history. A few salient features of the colonial legal syst
discussed in the next few pages, before going on to the post-
tionary position of adat law and recent inheritance decisions.
Dutch legal scholars in Holland and the Netherlands East Indies

developed the adat law into a distinct part of colonial legal life, with
its own procedures, jurisprudence, and commentaries, during the first
DANIEL S. LEV is graduate student, Cornell Modern Indonesia Project, Cornell Uni-
versity. The research for this article was done in Indonesia, while the author held a
Ford Fellowship, in 1959-1961.
205

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206 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 11
four decades of this century. Two men especially, Cornelis Van Vollen-
hoven in Holland and Barend Ter Haar in the colony, defended the
adat law against efforts to supersede it with uniform European-type
codes. Arguing that Indonesians order their lives differently than Euro-
peans do and that they already have legal norms which they believe
to be right, Van Vollenhoven, Ter Haar, and their supporters eventually
convinced the government, in the late 1920's, to give up its uniform code
policy.
It was only in the second half of the nineteenth century that Dutch
scholars became deeply interested in adat law, though three Englishmen
had concerned themselves with it much earlier.' By the beginning of
this century, however, a large body of material was available in books,
journals, and government reports.2 Van Vollenhoven used these to
describe the customary law and to work out the principles of an adat
law system that would operate alongside the European statutes.3 He
was able to describe tentatively nineteen more or less distinct law areas
in the archipelago, based on their different kinship systems, village and
social organization. As the cultural and social make-up of the areas
differed, so did their legal order.4
Pre-war judicial organization for Indonesian law subjects consisted
of a district court,5 a regent's court, and a landraad, the highest daily
court for Indonesians. Administrative officials presided over the two
lower courts, but the chairman of the landraad had to be a trained
lawyer. Wherever there was a landraad, there was also a first instance
European court (residentiegerecht),6 and the two courts shared their
chairman and clerk in common. Three European appeals courts (raad
van justitie) were established in Java, and three in the outer islands.
A Supreme Court (Hooggerechtshof) in Batavia heard final appeals in
1Marsden, The History of Sumatra (1783); Raffles, History of Java (1817); Craw-
furd, History of the East Indian Archipelago (1820).
2Van Vollenhoven, De Ontdekking van het Adatrecht (1928).
3Van Vollenhoven, Het Adatrecht van Nederlandsch-Indie (1916-1918), in three
volumes.
4Ibid., "Rechtskringen," vol. I, 133-148. This is also available in an English trans-
lation by A. Schiller, "Adat Law Circles and Native Legal Communities." There is a
great wealth of Dutch materials on adat law, but little in English. However, Ter Haar's
book, Beginselen en Stelsel van het Adatrecht, is available in English, edited and with
an introduction by Hoebel and Schiller, Adat Law in Indonesia (1948). See also Ter
Haar, "Western Influence on the Law for the Native Population," in Schrieke, The
Effect of Western Influence on Native Civilizations in the Malay Archipelago (1929),
and V. E. Korn, "Past and Future of Indonesian Adat Law," in The Future of Cus-
tomary Law in Africa (1956).
6 Pre-war administrative structure in Indonesia, from lower to higher levels, was as
follows: village, sub-district, district, regency, residency, province. This structure has
been retained in post revolutionary Indonesia.
6 On Java and Madura, each regency had a landraad. There are about 80 regencies
on the two islands. There were far fewer landraden outside of Java. Because of the
shortage of lawyers, a non-lawyer could be appointed as chairman of a landraad in the
outer islands.

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1962] LEV: ADAT INHERITANCE LAW IN INDONESIA 207
European law cases. Outside of Java, judicial administ

nesians varied in those areas where indigenous governm
were left intact. In such areas, customary courts continu
as they did in some directly governed areas, but with l
supervision.
Final appeals from adat law decisions of a landraad were possible in
certain cases to the European appeals court, but not to the Supreme
Court. The Supreme Court was limited to review of cases based on
'statutory provisions,' which excluded the non-statutory adat law.7
European-court judges were almost invariably Dutch, and so were
most Indonesian-court judges.8 Legal training was made available for
Indonesians early in this century, at first in a truncated law course
(Rechtsschool). Some of its graduates eventually were sent to the
University of Leiden, where Van Vollenhoven taught. A faculty of law
was opened in Batavia (Djakarta) in 1924 and, though some law
students continued thereafter to study in Holland, more and more were
trained at home.9 During the 1920's and 1930's many law graduates
went to work in landraden and began gradually to move up to the
bench. A few studied for higher degrees, often writing their disserta-
tions on adat law.
Judges who handled adat law cases had an extxraordinarily difficult
task. Unlike European-court judges, whose function and authority were
defined in the codes and who could rest secure in the reality, just or
unjust, of the written word before them, the landraad judge had always
to face his jurisdiction with sensitive antennae tuned to the signals of a
social system which might be completely foreign to his own. Ter Haar,
De Jongh, Het Nieuwe Cassatie Instituut van Indonesie (1951) 13-19. In 1938 a
third chamber (the other two were for civil code and criminal cases) was added to the
European appeals court in Djakarta to hear appeals in adat law cases from all the
landraden of Java and Madura.
On Netherlands-Indies judicial administration, see Carpentier-Alting, Grondslagen
der Rechtsbedeeling in Nederlandsch-Indie (2nd ed. 1926); de la Porte, Recht en
Rechtsbedeeling in Nederlandsch-Indie (2nd ed. 1933); and Soepomo, Sistim Hukum
di Indonesia, sebelum Perang Dunia II (The Legal System in Indonesia before World
War II. 1957).
8 On the approximately 80 landraden of Java and Madura, there were no Indonesian
chairmen in 1920 and 1925. There were 17 Indonesian chairmen in 1930, 24 in 1935,
and about 23 in 1941. In the same years, except for 1920, there were from 10 to 20
Indonesian member judges on the landraden, and a few more irregular members of
the courts. Outside Java, between 1930 and 1941, there were from two to four Indonesian
landraad chairmen. Statistics compiled from Regeeringsalmanak II (1920, 1925, 1930,
1935, 1942).
9 A list of law graduates was compiled during the Japanese occupation of Indonesia.
The list, probably approximate, indicates that there were 274 Indonesian graduate
lawyers by early 1942. The population of the colony, according to the 1930 census,
was 59 million. Of the 274 law graduates 146 had studied in Batavia, 107 at Leiden,
9 at Utrecht, and for twelve no information was available. Soepomo papers, Ministry
of Justice, Djakarta.

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like Grey,'? regarded only the decisions of judicial authorities as law."

It was therefore imperative for Ter Haar that the judge understand the
society in which he works so thoroughly that he can reason towards
decisions that are intrinsically just and valid according to the structure
and beliefs of the community.
Ter Haar's judge is a functional part of the community, but psycho-
logically he may be an outsider, to the extent that his own legal concep-
tions are different from the community's. Ter Haar analyzed this
problem by juxtaposing the critical-analytical thought of the formally
educated judge and the 'participating' (unanalytical, group harmony
seeking) thought of Indonesian communities. He admitted and encour-
aged the role of the judge's critical approach in adat law decisions.
Bound by the system and values of his jurisdiction, the judge is never-
theless free to bring his critical insights to bear on individual rules,
to test them within their own growing and changing system and
according to social realities.'1 Occasionally, the judge may on general
grounds deny validity to unjust consequences of the community's
conceptions.l3 But even then he must regard himself above all as a
servant of the community and its values. He must "always look as well
to the past as to the future" of the community and its law.14 Ter Haar
applied his argument to both Dutch and Indonesian judges, though he
distinguished their different psychological relationships to Indonesia
and Indonesian legal development.15
The need, in Ter Haar's mind, to emphasize the judge's responsi-
bility to the community's norms becomes clearer if the judicial func-
tion is understood to operate within the community only through a
specific medium called law. The medium-the norms and law of the
community-must be equally usable by litigants and judge.16 This must
of course be true in any community for the court's work to be effective.
10 The Nature and Sources of the Law (2nd ed. 1927) is cited by Ter Haar in Adat
Law in Indonesia, 228. See the latter work, 228-233, for Ter Haar's discussion of
"Precedent and the Judge" and the role of the judge generally in adat law.
11 Ter Haar, "Het Adatrecht van Nederlandsch-Indie in Wetenschap, Practijk en
Onderwijs," in Verzamelde Geschriften van Mr. B. Ter Haar, Bzn., II (1950) 473.
12 Ter Haar, "De Betekenis van de Tegenstelling Participerend-Kritisch Denken en
de Rechtspraak naar Adatrecht," Verzamelde Geschriften II, 596-605. Soepomo, "Prof.
Mr. B. Ter Haar Bzn," in Gedenkboek, uitgegeven ter gelegenheid van het vijf en
twintig jarig bestaan van het Rechtswetenschappelijk Hoger Onderwijs in Indonesia
op 28 October 1949 (1949) 40.
13 Ter Haar, "De Betekenis," 601-602.
14 Ibid., 594-595.
15 Ibid., 602.
16 See Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia
(1955) 158-159, wherein he discusses the difficulties of a Lozi judge trying a Jehovah's
Witness case due to the lack of agreement on norms. Gluckman argues that a European
could not fulfill the function of a judge in Lozi society, even though the law is the
same in many of its fundamentals. ". . . sound judicial work in any society is obvi-
ously based on the judges' awareness, often subconscious, of customs, standards, and
ways of life of the people to whom they have to administer justice." 96.

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But the judge who is a member of the community can t

for granted.1 Ter Haar's European or Europeanized ju
to be conscious of the differences between his and the l
and to serve the latter.
Adat law was, of course, subject to change, consequent
change in the community itself and as well upon cha
the European government and the conditions of colon
Haar constantly emphasized the necessity for courts to
change and to give effect to it.
The full blossoming of the legal and judicial sys
wanted did not come before Dutch domination ended
his and Van Vollenhoven's ideas were incorporated i
law, judicial practice, and legal education. Both men are
respected and loved by their Indonesian students. The
full parity of dignity for Indonesian cultures and values
places in the hearts of Indonesian nationalists.
II
The adat law system18 of Van Vollenhoven and Ter Haar did not
survive the revolution (1945-1950). In part, this has been the result of
unification of the judiciary and the shortage of trained Indonesian
judges and adat law researchers. It has also been due to the ambivalence
of the Indonesian elite towards the adat law and to their relentless
demand for a modern and unified state.
From a political point of view, one might suggest that the adat law
system is better operated by outsiders than by the community's own
members acting independently. It is the social and legal change which
results from normal political activity that seems to be missing from
the adat law system before the war. This is so because the colonial
government stands in the way of the colony's internal political growth.
To take that part of the problem which concerns us here, the colonial
government must, in the nature of things, intervene in the normal
interaction between the indigenous elite and the rest of society. The most
17 Cardozo denied the right of a judge to impose his own ideas on society, saying
that ". . . the thing that counts is not what I believe to be right, it is what I may
reasonably believe that some other man of normal intellect and conscience might
reasonably look upon as right." Cardozo, The Nature of Judicial Process (1921) 88-89.
He could assume that the values of American society and his own values were by and
large the same.
18 'Adat law system' is here used to indicate the entirety of the judicial system
concerned with adat law, its jurisprudence and commentaries, and the type of legal
education that was developed to train adat law judges. It should be recognized that
once the Dutch, whatever their motives, began to take interest in adat law and to
create institutions for it, it became something different than before. One can no longer
speak of the adat law, but rather only of a system developed by the Dutch on an
original customary law base.

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important result of the revolution was to permit that interaction to

develop unimpeded. Indonesian society (and therefore Indonesian
law) must now experience the full impact of the ideals, goals, and
methods of its own elite, whose future can only be an Indonesian future.
Most of the nationalist elite have, since before the war, conceived
Indonesia's future as one of rapid economic and social progress. For
many of them, adat law represented the opposite of progress. But it also
represented something that was frankly and indisputably Indonesian.
The resolution of this problem after the revolution began was more or
less complex, depending on the individuals who thought about it. For
some the choice was either the adat law or European law exclusively.l9
Others favored an equally difficult modernization of the law on a base
that comprehended the distinctly Indonesian sense of justice, as it is
manifested in adat law.
Most lawyers and scholars after the revolution saw the adat law in
the light of their desire for a modern industrial state. Economic progress
would require new civil law, and the inevitable social revolution would
necessitate new laws to fulfill the demands of laborers and peasants for
a better life. The Indonesian people would have to be pushed towards
new and modern law.20 Adat law, in the view of post-revolutionary
leaders, is inadequate and must give way.21
The major stimulant for new law is economic and social moderniza-
tion. But there is another and more subtle influence on the character
of the new Indonesian law which the elite desires. That is the standard
of international acceptability. Indonesians will now make their own
law in their own interests, but "for the honor of our state in the world,
we must have a legal system whose quality is on a par with the legal
systems of civilized nations."22 The Indonesian elite is, by and large,
very sensitive to the gaze of the outside world. This has been an
important influence in the general behavior of the elite and in the
creation of new law, and it often turns up in the thinking of judges
when they apply themselves to adat law cases.
The emphasis on change and modernization does not mean that adat
law ceased to be important after the revolution. In 1955, Professor
19 Another choice was Islamic law, which Islamic political parties have demanded
since the beginning of the revolution. The history of adat law both before and after
the war has much to do with the history of Islam and Islamic law in Indonesia. But
neither Islamic law nor Islamic courts are discussed in this article, for they involve
issues that are better dealt with separately.
20 See, for example, the views of the late Professor Soepomo, the most respected
legal scholar in Indonesia. Kedudukan Hukum Adat diKemudian Hari (The Future
Position of Adat Law, 1947, Reprint 1959), and his "The Future of Adat Law in the
Reconstruction of Indonesia," in Thayer, Southeast Asia in the Coming World (1953).
21 "For the benefit of . . . pressing social interests, we cannot wait for new adat
rules to grow. We must, in fact, interfere in the capacity of this society and soon
draft codes with the necessary modern law." Soepomo, Kedudukan, 16-17.
22 Ibid., 15.

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V. E. Korn mentioned that "We find most Indonesian intellectu

although longing for a modernization of the law, still remaining und
the fascination of adat law.'"2 This is still true, seventeen years after
the beginning of the revolution. Adat law is still taught in the l
faculties. A few books and articles on adat law continue to appe
though little that is creative. And, since Korn wrote, there has ev
been an increase in the number of adat law decisions reported in t
Journal of Law, and a compilation of Supreme Court adat law decision
has recently appeared. With the exceptions of labor and, in 1960, lan
law, there has been neither codification nor unification in most of t
civil law. Frequently this is attributed to the lawmakers' too gre
concern with more pressing political affairs. But it is due as well to th
lack of any consensus on what should go into a new civil code th
will distinguish it from the old one. There is also the discomfort
heritage of social and legal pluralism, which makes it difficult f
legislators to decide finally to create unified as well as codified la
applicable alike to Indonesians, Chinese, and Europeans, Moslems a
Christians.
It is usually said that although the work of codification or unifica-
tion can begin on commercial law and the like, family law will ha
to wait. For it is in these matters of marriage, divorce, adoption, and
inheritance that differences between adat law areas are most obvious
not to speak of differences between adat law and European law. H
too the most violent passions are aroused. Issues of religion, feminine
equality, basic human rights, and the position of the family have com
up again and again since the revolution (and before it too) to distr
the nation's leaders, and to prevent Parliament from creating ne
law for these delicate relationships.
But the courts do not suffer the disadvantages of the political branch
of government. For this reason, and because adat law allows judg
some latitude in finding and applying it, it is not surprising that th
courts have been able to do what many in the legislature and executiv
would like to do but cannot.
To understand the Supreme Court's recent decisions on adat inherit
ance law, it is necessary to consider some of the factors that have infl
enced the general outlook of judges on adat law. To some extent
judges share the attitudes of scholars and politicians who give priorit
to economic and social change. But these attitudes are qualified
the judges' immediate responsibility. Every judge must decide cas
which influence, as much as they are influenced by, his thoughts on l
Two related factors are the problem of social change since the revolu
tion and the lack of new descriptive adat law studies. Due partly
the failure of the government to encourage adat law research, po
23 Korn, Past and Future of Indonesian Adat Law, 226.

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conditions in law faculties, unfavorable security situations in some areas,

and a general concern with other problems, there has been almost no
research on adat law since 1942.24 That the adat law is not static has
long been an essential principle for judges and scholars. Students of
adat law acquire a strong sociological bent, which inclines most, though
not all, to believe that the last two tumultuous decades must have
worked profound changes in the adat law everywhere. The question is
constantly posed: Does the adat law we know from pre-war studies still
apply?25 For the scholar this is a troubling but academic problem. For
the conscientious judge it may become a persistently nagging one.
The shortage of judges since the revolution and an increase in the
quantity of litigation have resulted in great backlogs of cases. And these
cases are of great variety, including a hodge-podge of criminal, civil
code, adat law, and some conflicts cases of either an interlocal (litigants
from different adat law areas) or interracial (between European law
and adat law subjects) character. This would surely be trying even for
the most learned judges, of whom there are few at the first instance
level. There is little time, consequently, for judges to observe the areas
of their jurisdiction carefully, especially the rural areas, and many
judges do not feel inclined to do so in any case. As a result, urban
surroundings are likely to influence their judgment of what the adat
law has become.
It is perhaps even more important that judges, after all, belong to
the national and local elites. They are subject to the same ideological
influences as the rest of the elite and usually share the same psychology.
Their sensitivity to international opinion has been mentioned. Another
elite characteristic has to do with the cultural tension between Javanese
and people from the other islands. This tension, which has been an
important element in post-revolutionary political strife, consists of a
mixture of realistic and unrealistic conflict and of varying propensities,
on the part of non-Javanese, to emulate and to disdain Javanese culture,
to look upon it as the finest of civilizations and the weakest.26 The atti-
tudes of the outer island elite towards their own adat law can sometimes
be understood in the light of this situation. There may, for example, be
a tendency to look upon Javanese adat law as more modern or more fair.
24Many books and articles which have appeared since then are recapitulations of
pre-war studies. But some very good research has been done by the Social Research
Committee, later the Adat Law Committee, of Gadjah Mada University, under Prof.
Djojodigoeno. See Soedarso, "Hukum Adat Waris" (Adat Inheritance Law) in 1-2
Madjalah Hukum Adat (Journal of Adat Law. 1961).
25 See Soekanto, Menindjau Hukum Adat Indonesia (On Indonesian Adat Law.
1958) author's preface. Utrecht, Pengantar dalam Hukum Indonesia (Introduction to
Indonesian Law. 4th ed. 1957) 137, where he asks: "Are the results of [adat law]
research before 1942 still valuable now?"
26 For a discussion of some aspects of this, see Geertz, "The Javanese Village,"
Skinner, Local, Ethnic, and National Loyalties in Village Indonesia: A Symposium
(1959).

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The presence of Javanese judges in outer island juri

strengthen this tendency, at least in the judges' influenc
island colleagues." However, the importance of this in
not hide the fact that the education and urban standards
Sumatra, Sulawesi (Celebes), and other islands also in
reform.
All these factors have played a part in transforming the judges'-
certainly the Supreme Court judges'-conception of their role in adat
law change, and in influencing new jurisprudence in adat family law.
The discussion that follows will deal primarily with inheritance law
to demonstrate this. Other decisions and comments of the Supreme
Court28 will be considered when they throw light on the Court's chang-
ing view of adat law, or on the ideas of the Chairman of the Supreme
Court, Wirjono Prodjodikoro, who has been the strongest advocate of
new inheritance law.29
III
The development of new case law on adat inheritance is based on

areas that represent two of the three distinct types of kinship system
found in Indonesia. First there is Java, with a bilateral kinship system
in which both male and female children have inheritance rights.
Second are the patrilineal areas of Tapanuli, in North Sumatra, Bali
and Lombok, where inheritance is along the male line.30 The most
27 The serious shortage of trained lawyers in the outer islands meant that many
Javanese had to be appointed to courts outside of Java. Some became chairmen of
first instance courts in such major cities as Medan, Sumatra. Outer island judges have
also served on Javanese courts. It is significant that most judges, whether Javanese or
other, prefer to work in Java, where living conditions are better. As more outer island
law students graduate, the number of Javanese judges in the outer islands declines, but
this has been a very slow process.
28 The Supreme Court (Mahkamah Agung) is a court of cassation. Postwar statutes
removed the former restriction of Supreme Court jurisdiction to cases involving 'statu-
tory provisions,' so that it became possible for the Court to deal more broadly with
matters of 'law,' including adat law. De Jongh, op. cit., 19ff. The Court is responsible
for supervising all lower secular courts, including the five appellate courts (pengadilan
tinggi) and 120 first instance courts (pengadilan negeri). At present, there are seven
Supreme Court judges.
29 Wirjono Prodjodikoro was born in Java 60 years ago. He was trained in the short
law course and then went to Leiden for his degree. In 1926 he began his work in
the courts as an assistant to the chairman of a landraad. He became a landraad chair-
man and published some articles on adat law before the Japanese occupation. During
the revolution he remained with the Republic and was appointed to the Republican
Supreme Court in 1947. Wirjono became chairman of the Court in 1952, after the
death of the first chairman, Kusumaatmadja. Judge Wirjono's views have been associ-
ated with those of the Nationalist Party, with considerable emphasis on social reform.
30 The third type system is represented by matrilineal West Sumatra (Minangkabau).
Of the patrilineal areas, Tapanuli has received more of the Supreme Court's attention,
partly because it is best known of such areas.
Space does not permit a full discussion of all the exceptions and qualifications which
mitigate the logical operation of the kinship systems in inheritance. Suffice it to say

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difficult inheritance issue in all these areas has been that of the widow's
position. Is she an heir of her deceased husband or not? If she is not an
heir, to what share of an inheritance is she entitled for support during
her lifetime? If she is an heir, to what share of an inheritance is she
entitled as a matter of right?
Most literature on the subject indicates that she is not an heir, but
the complexity of succession in Indonesia leaves considerable room, as
one pre-war scholar warns, for misconceptions.31 Generally, inheritable
property is of two sorts: (1) property which the husband and wife
bring individually into the marriage and which they continue to own
separately during the marriage (harta pusaka, barang asal) and (2)
property which they acquire during the marriage and own jointly as
community property (harta pentjaharian, qono-qini). On the death of
her husband, the Javanese widow is entitled to a portion, a half or
third, of the community property, while the children or next of
husband's kin divide the rest. The widow's share is theoretically
equivalent to her contribution to the community property. She also
retains her own individual property (barang asal), which her children
will eventually inherit. The children inherit the individual property
of the deceased father. If there are no children, the separately owned
properties of the husband and wife return, on their deaths, to their
respective parents or siblings. But on the death of the husband, none
of the property is actually divided so long as the widow lives and does
not remarry, for she has a right to use both types of property to the
extent necessary for her support. The property division usually occurs
after her death, unless she and the heirs agree to divide it earlier.32
Even if she is not an heir, then, the Javanese widow does have a great
deal of authority in law over her husband's estate. So much so, that
occasionally some have wondered whether she is not an heir after all.
The position of the Batak woman of Tapanuli is less favorable. There
is little question that she is not an heir. In the patrilineal kinship system
neither widow nor daughters have inheritance rights.33 But here too
the widow, perhaps less securely than in Java, is said to have a right
to support from the property of her deceased husband.34
that there have usually been many deviations in the form of gifts, wills, and the like,
and many alleviations in the form of filial and parental responsibilities. It should also
be mentioned that in some areas there is an Islamic law influence, as in parts of Java
and South Tapanuli.
31 Boerenbecker, De Vrouw in het Indonesisch Adatrecht (1931) 150-151.
32The actual division of property is a rather informal matter. Only if there is a
dispute do the rules come into play, and even then only when the court has to
settle the dispute. Usually the emphasis is far less on the rules than on peaceful and
harmonious settlement. See H. Geertz, The Javanese Family (1961) 47.
335 Pandecten van het Adatrecht (1941) 199-204. But the Batak daughter may
receive gifts, including land, from her father, and she is entitled to use this property
in her own interests.
3441 Adatracht Bundels (1941) 326-327, on the Mandailing area. See also Siregar,

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The development of Supreme Court jurisprudenc

and patrilineal areas has been towards establishin
right to sufficient support from her husband's sepa
erty as well as his share of the community property
share of both kinds of property regardless of the que
of support, and (3) her full right to inherit a sha
property equal to that of the children. The culminat
is, therefore, recognition of the widow as an heir o
development begins first for Java, and the other are
considerable doubt on the part of Supreme Court jud
The Supreme Court, or at least its chairman, Ju
cated early that it would take a progressive view
position of Javanese women. In March 1952, the
Surabaja, in a case from Blitar, held that a child is t
parents and the parents are the only heirs of the
presented as evidence its "own experience" and
studies. Although the Supreme Court did not review
appended a note to it in which he criticized the appe
indicating precisely what he meant by his "own exp
or as a member of society ?-and for not naming
on which he relied.36 Frequently, said Wirjono, t
and Madura rule that when an inheritance consists o
house and household goods, the widow must control
only the surplus over her needs may be divided amo
the deceased. He points out that Ter Haar once
research is necessary on this position of tle widow,
had left the matter undiscussed as 'of no practical in
on West Javanese adat law. Wirjono then poses a pro
itance is worth millions of rupiahs, will the widow
enough to live on. That would be unjust. Therefore,
premature to state that in the adat law of Java and
is the only heir of his or her parents. He then rema
pre-war research in Sidoardjo led to a tentative conc
receive a share of the husband's property equal to tha
During the next ten years of Javanese inheritanc
ments appear over and over again.
From the next five years of inheritance decisions
Hukum Warisan Adat Batak (Batak Adat Inheritance Law, 19
deals with the Angkola/Sipirok, Mandailing and Pandanglawas
35 Madjalah Hukum (Journal of Law, hereafter Hukum. 19
36 The choice of references would have been small: one majo
Tirtawinata, Het Adatprivaatrecht van Middel-Java (1940) a
mentaries and law journal articles.
37 Of no practical interest because the widow is entitled to su
will be taken care of by her children.
38 Hukum (1952/3) 46.

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Law it appears that not all Supreme Court judges accepted Wirjono's
position. Wirjono admitted as much in a 1957 decision in which he
does, nevertheless, achieve a partially victorious compromise with his
colleagues.39 The case involved determination of the heirs of a deceased
doctor. The first instance court in Bandung, West Java, held that a
father's children are his heirs, but his wife is entitled to one half of
the community property. In cassation, after the appellate court denied
its own jurisdiction, the Supreme Court worked out an interesting
formula for the widow. If the lower court declares, states the Supreme
Court decision, that the three children are heirs and that Nji Eny Siti
Roekasih (the wife) is the widow, a misconception might result in
which it is assumed that the widow is not entitled to inherit from her
late husband:
. . . [But] "it is clear that Nji Eny Siti Roekasih, as a widow,

is fully entitled to part of the inheritance. Therefore, it is best that
the term 'heir' not be used at all, but rather that it simply be
declared the three appellants and Nji Eny Siti Roekasih collec-
tively have rights over the said inheritance."40
The reasoning here is somewhat tortuous. No one had questioned the

widow's right to something from the inheritance, at least for her
support. But an opening was needed for the new formula. In a long
note on this case, Wirjono argues as he did in the first case above
against pre-war jurisprudence of the adat law chamber of the Djakarta
Raad van Justitie. He also mentions that occasionally a widow does
obtain all of her husband's estate, as the pre-war court agreed, if it is
just sufficient to support her. He then raises another problem. If, for
example, the inheritance consists of bank savings and the bank requests
that a court indicate an heir, the court could not, under present doctrine,
declare the widow to be an heir. Wirjono therefore thinks 'heir' should
be interpreted always to include the widow. Because others on the
Court do not yet agree with him, a middle road is proposed. The term
'heir' gives way to 'collectively have rights.' With this decision most of
the battle apparently is won, but it takes at least two more years for
some Supreme Court judges fully to accept Wirjono's argument.
Because Indonesian Supreme Court decisions are unanimous and
brief, it is usually difficult to discover how the several judges see the
issues before them. There is only an occasional glimpse, unless one of
the judges comments on the case in the Journal of Law. Wirjono, how-
ever, is a prolific writer, and his books and articles indicate what he
believes to be the conditions requiring new adat inheritance law. One
of these is the present 'transitional period' of Indonesian history, a
39 Hukum (1958/7-8) 92-106. Decision of 23 October 1957.
40 Ibid., 103.

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process of transformation from the attributes of colonia

freedom and independence. This process presents jud
novel problems of conflict and law, which they must eva
to society's sense of justice.4' The implication is that jud
guide the nation through the transition. But Wirjono's u
sense of justice' leads one to conclude that he actually m
of justice implicit in the ideals of independent Indone
expressed by national leaders. A related consideration is
ism of the revolution, and the equal rights of women w
in society and the independence movement justifies.
ence on Wirjono is more complicated. It comes in part
sistent demands of women's organizations for equality
opposition from advocates of either adat or Islamic law.
comes from Wirjono's general deduction from democ
that members of society ought to be equal before the la
comments on this also indicate his concern with the jud
opinion.
Even after these two decisions, some Javanese courts continued to
apply the older rules to inheritance problems. On occasion it seems that
the doubts of some Supreme Court judges are strong enough to permit
the view to stand that a widow is not an heir.43 In division of com-
munity property, however, the Court does insist on equality of widow
and children. A ruling of 1959 overturned a decision of the Bodjone-
goro court which allowed a widow only one third of the community
property. The Supreme Court rejected this rule on grounds that "in
Central Javanese society the feeling has long begun to grow that because
of the equal participation of women in the national struggles, it is just
that a widow get half of the community property, so that this has
become the adat law of Central Java."4 One month later, in a case
from East Java, the Court declared that it had become its permanent
41 Wirjono Prodjodikoro, "Hakim dan Masjarakat," (The Judge and Society) Hukum
(1955/3) 73-74. This was a speech delivered in November 1954 before a judges'
conference in Bandung.
42Wirjono Prodjodikoro, "Kedudukan Hukum Wanita di Indonesia," (The Legal
Position of Women in Indonesia) Hukum (1957/5-6) 6.
43 See Hukum (1959/5-6) 54-72, Supreme Court judgment in a case originating from
Demak. The widow in this case did not deny that the children of the deceased are
his only heirs. But the Court held that the widow may control all the community
property regardless of whether it is more than sufficient for her needs. The Court then
stated that sufficiency is a matter of fact and not of law, and therefore cannot be dealt
with in cassation-a protection against further appeals on this issue. Hukum (1960/3-
4-5-6) 283-300, in which the first instance court of Lamongan says that the widow
is not an heir, and the Supreme Court does not comment, but deals with other issues
in the case. Soebekti and Tamara, Kumpulan Putusan Mahkamah Agung mengenai
Hukum Adat (Compilation of Supreme Court Decisions concerning Adat Law. 1960)
57-61, decision of 1959, in which the Court seems to oppose widow to heirs.
44 Hukum (1960/3-4-5-6) 281.

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jurisprudence that a widow receives one half of community property.45

Although the Court uses terminology in this latter case that implies
applicability only to Java, the decision nevertheless indicates the Court's
willingness to apply its law to whole areas of the country regardless of
possible variations of adat law within or between similar areas.
By 1959, then, the Supreme Court had established the equality of
Javanese widows with their children in the division of community
property. The position of the widow as heir, especially of her husband's
separately owned property, was still uncertain, though Wirjono's com-
promise formula appeared eventually to assure her that too.
A majority of the Supreme Court has always been Javanese. Non-
Javanese judges usually have had little interest in adat law, or they have
lived so long in Djakarta that they tend to evaluate outer island society
and adat law according to a mixture of cosmopolitan and Javanese elite
standards. Perhaps the greater general familiarity of the Court with
Java made it easier for the judges to proceed quickly along new paths
of adat law development there. On the other hand, the Supreme Court
judges' suspicions that other islands had not yet achieved the same
progress as Java may have inclined them at first to believe that those
areas were not ready for radical departures from their old adat law.
Whatever the reasons may be, the Supreme Court said little before 1958
that questioned the validity of outer island adat family law as it is
known from pre-war research. At least in Sumatra, it was the first
instance courts and the appellate court in Medan which first began to
shore up feminine rights in the adat law.46
However, in the thinking of the Supreme Court and the appeals
court in Medan, a process of social change has long been going on in
most of Indonesia, including the outer islands, that must eventually
influence adat family law. Ter Haar had commented on the gradual
'individualization' of Minangkabau society and other areas of the
country. The impact of the revolution, increasing urbanization, educa-
tion, and the economic disorder of the last decade lead these judges to
believe-and they are no doubt correct-that the breaking up of village
and extended family ties is continuing at an increasingly fast pace.47
45 Soebekti, Kumpulan, 98-106. Case from Blitar, Supreme Court decision of March
1959.
46 In his book on sources of law, Mr. Mahadi, chairman of the appellate court in
Medan, cites a 1948 decision of the Panjabungan court as an example of 'modern ra-
tional considerations' in adat law change by the courts. The lower court held that
denial of a widow's right to part of community property is inhumane. Sumber-Sumber
Hukum II (1958) 10.
47 See Bruner, "Urbanization and Ethnic Identity in North Sumatra," 63 American
Anthropologist (1961) for the view that despite urbanization Batak adat (custom)
has actually become stronger. His argument underrates the importance of changing
conceptions of justice among the urban Batak elite, and the considerable influence on
them of national and international opinion. In a recent paper, for example, a Medan
Batak lawyer appealed for justice in adat rules concerning women. His arguments are

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They assume that this social change they perceive m

stronger nuclear family. If this is so, then inheritance
distributed within the nuclear family. The decisions of
be understood in the light of this reasoning, along wit
egalitarian influence.
The jurisprudential development was at first a very c
Sumatra and in other islands, like Bali and Lomb
Supreme Court and appellate court judges are even less
Sumatra. In 1952 the appellate court in Medan upheld a
Kabandjahe (Karo) court which recognized only the m
a deceased man as his heirs, and not his daughter.48
reflects the Supreme Court's conservatism in oute
matters. This was an appeal from an inheritance dec
customary court in Palembang.49 The Supreme Cour
lant's contention that in Pasemah adat law it is no long
an oldest son must receive a greater share of an inheri
children. The Court stated that to determine a change
necessary to show clear evidence, based on real events
Although a new form may be practiced here and there
yet mean the old rules have actually changed. A fair q
whether there would have been as much emphasis
evidence had the claimant been a daughter.
In 1955 the Supreme Court considered a case from
a customary court had ordered the eviction of a widow
of her deceased husband. An uncle of her son by t
sued to take the house as his inheritance, on groun
committed adultery and therefore must be denied the r
The Supreme Court reversed the decision and ruled tha
of a deceased father (in patrilineal Bali) can claim his i
in this case the son had specifically stated he did n
against his mother.50 Also in 1955, in a case from the
West Lombok, the Supreme Court held that the h
father is his sister.51 But the widow must receive
inheritance, since she is responsible for her husband
other affairs.52 A 1956 decision held, by implicati
(Islamic Lombok) widow is not an heir of her husban
based on general principles of justice and the trends of the tim

article 7 of the 1950 Constitution, on basic human rights. Sitindjak,
Menurut Adat di Tapanuli Utara" (The Position of Women Acco
North Tapanuli. 1959). Typescript.
48Hukum (1955/1-2) 118-121.
49Hukum (1955/3) 38-40. Rapat Tinggi. Customary courts c
places until 1960, when they were finally replaced by regular gov
50Hukum (1956/1-2) 39-43.
51 Cj. Soebekti, Kumpulan, 91-94.
52 Hukum (1956/3-4) 70-76.

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to one third of community property plus one eighth of the remainder

for taking care of the inheritance.53 The Court ruled in 1957 that in
Bali a gift of land to a daughter can be claimed by the heirs of her
deceased father if she commits an adat crime that results in loss of her
caste.'4
The Supreme Court was similarly careful with North Sumatran adat
law, and did little more than support the decisions of the Medan appeals
court. The latter court did what it could for the widow and daughter,
but stayed within the possibilities offered by Batak social-legal con-
cepts. It continually held that a widow has a right to support from the
estate of her deceased husband.55 The widow was not considered an
heir, though her right to care and certain gifts was affirmed.
By early 1958 the Supreme Court began to give indications that its
conservatism in the outer islands would soon come to an end. In 1951 a
Sasak customary court permitted a daughter to redeem land that her
late father had pawned. The first instance government court in Mata-
ram, Lombok, serving as the appellate jurisdiction for the customary
court, overturned the decision on grounds that a daughter is not an
heir and therefore has no right to redeem such land. On appeal, in
January 1958, the Supreme Court supported the customary court. It
declared that the daughter is entitled to a payment for her responsibili-
ties to the deceased and so could redeem the land. That it was a
customary court which favored the girl may have encouraged the
Supreme Court to take this step.
Wirjono's reference to 'an increasingly strong trend in Indonesia'56
is a significant indication that he had begun to consider inheritance
law in a national perspective, ignoring the boundaries of the several
distinct law areas. By early 1959 Wirjono was willing to speak directly
53 Hukum (1957/1-2) 95-103.
64 Hukum (1957/7-8) 106-107.
55 See decision of 21 May 1952, 3 Berita Pengadilan Tinggi Medan (Reports of
the Medan Appellate Court. 1956) 1. Also Soebekti, Kumpulan, 17-20, in which the
Supreme Court upheld a decision of the Medan appellate court, ruling that a widow
has a right to sufficient support from her deceased husband's land, even though she
is not an heir. In a note on a Medan appellate court decision dealing with a similar
point, Wirjono emphasized that the rule that heirs cannot divide an inheritance so
long as the widow lives, applies only so far as necessary to guarantee proper support
for the widow. Hukum (1958/1-2) 127.
56 In a note on this case, Wirjono explained that "This decision of the Supreme
Court is in line with an increasingly strong trend in Indonesia to raise the position
of women-in this case a daughter-in a society which, in its ancient ways, tends to
treat a daughter less well than a son .... The equality of rights between men and
women is a principle that can no longer be opposed in the present day. Therefore,
it must, so far as possible, be put into practice."
In the same note, Wirjono also mentions that Prof. Hazairin, an adat and Islamic
law scholar, recently argued that Islamic inheritance law is bilateral, and that in
essence there is no difference between the rights of men and women. See Hazairin,
Hukum Kewarisan Bilateral menurut Al-Qur'an (Bilateral Inheritance Law according
to the Qur'an. 1958?)

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of the possibility of codifying and unifying Indonesian i

He had probably been thinking about this for some time
gress of the Indonesian Lawyers Association in 1959, Wir
a paper on "Efforts to Improve Inheritance Law in Indon
he discussed the bases on which the various inheritan
ing the civil code-could be brought together in a sing
Much of the paper deals with the position of wome
makes his commitment quite clear. He argued that any d
between male and female should as much as possible
from the law,59 kinship systems to the contrary no
Admitting that inheritance usually is connected with
ship, Wirjono said that the spiritual and physical relatio
husband and wife is even stronger than that between
and his blood relatives. Elsewhere he emphasized the t
stronger nuclear family.60
In January 1959 the Supreme Court, in rejecting an
judgment of the Medan appellate court, ruled that "a
knowledge of the Supreme Court itself . . . Batak ad
present time" provides that both widow and children
munity property. Since, moreover, it is in the interests
children that they be in their mother's care (rather tha
family), therefore the widow is also given control over
share of the inheritance during their minority.6' Here i
the members of the Supreme Court have agreed on th
effort will be towards guaranteeing a strong position
inheritance everywhere in the country, regardless of th
law.
Finally, on 8 November 1960, the Supreme Court consolidated its
jurisprudential position on inheritance in a case that began two years
earlier in Bodjonegoro, East Java.62 In its decision, the Court stated
clearly that it must determine not only whether a widow is entitled
to the separately owned property (barang asal) of her deceased hus-
band, but also-definitively-whether a widow is her husband's heir.
The two questions seem actually to be the same. But the terminology
is important, for the strength of the widow's position will be found in
57 See his Hukum Warisan di Indonesia (Inheritance Law in Indonesia. 1956 or 1957).
58 "Usaha Memperbaiki Hukum Warisan di Indonesia," Hukum dan Masjarakat
(Law and Society. 1960/1) 13-32. This journal is the successor of Madjalah Hukum.
591bid., 16. Wirjono was apparently still doubtful in 1959 that the nation's judges,
including some of the Supreme Court judges, could accept a fully egalitarian inheritance
law. Therefore he occasionally qualifies such proposals with "as much as possible" etc.
60 Ibid., 28.
61 Soebekti, Kumpulan, 21.
62 Reg. No. 302 K/Sip/1960. Typescript copy from the Supreme Court. The secre-
tary of the Supreme Court told me that a decision of April 1960 contained the same
points as this decision, so that it is possible the Supreme Court's new position should
be dated seven months earlier.

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her unquestionable right to 'inherit.' The decision repeats, almost

word for word, Wirjono's comment in his paper for the lawyers' asso-
ciation, that the relationship between husband and wife is stronger than
that between a deceased husband and his blood relatives. Therefore it
is in accord with the sense of justice that an inheritance provide the
wherewithal for the widow's proper support, as well as for the chil-
dren's. It follows from this, said the Court, and from its own daily
observations, that "adat inheritance law throughout Indonesia concern-
ing the widow, can be so formulated that a widow is always an heir
to the separately owned property (barang asal) of her husband; at
least in the sense that of the said property part must remain in the
widow's hands, as far as is necessary for her proper support, until she
dies or remarries." The Court also held that in some areas of the
country, "it is possible that if the inheritance is a very large one, the
widow is entitled to a share of it equal to that of the children of her
deceased husband."63
The Supreme Court has taken a long step indeed towards making
law for the entire country. There is still one qualification of the widow's
inheritance rights, and it is based on an adat law concept. Her right to
inherit is certain, but remarriage may entail loss of the separately owned
property of her former husband. Until then, she may do with the prop-
erty as her interests demand. When an inheritance is large enough so
that it can be divided by all the heirs without damaging the widow's
position, she must receive as large a portion as her husband's children.
If the widow is a stepmother, her position is secure against the children's
lack of concern. The essential point of this decision, however, is that
the Supreme Court's view of justice has prevailed over the several adat
views of justice and the rules they require.
IV
Some, but not all, lower court judges feel the Supreme Court has
gone rather too far in deviating from the adat law, so far indeed that the
Court is disregarding social realities in certain areas. At least one appeals
judge has said that the Supreme Court has gone beyond the people's
true sense of justice.64 According to the same judge, in moving so
quickly the Supreme Court is pulling the carpet out from under many
first instance judges, who are closest to the origin of disputes and there-
fore tend to be cautious in applying rules which their areas are not yet
willing to accept. Lower courts are not formally bound by Supreme
Court precedents, but it is likely for other reasons that most judges will
follow the highest court's example. Wirjono himself has said that if a
judge too often refuses to heed Supreme Court advice on interpretations
63 Ibid., 5-6.
64 Conversation in Djakarta, 11 November 1961.

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of law, the Court may propose his removal from offic

would no doubt follow the Supreme Court jurisprudenc
either because they agree with its purpose or because t
in their own knowledge of how adat law is developi
cially true of very young judges.
It is most likely true that the Supreme Court has mov
with the villages-more so in some areas than in others
extent that it has introduced urban ideals into its
might ask, if this is so, what will be the reaction of th
Court judges have occasionally said they have not yet h
tions, and that therefore the new jurisprudence seems
But there are no effective channels of communication
and courts, so the point is a weak one. The answer
there will be hardly any reaction at all. Most peopl
elsewhere are not affected by these decisions. To the e
feel differently than the Supreme Court does, they
settle their disputes as they think right. When they c
settlements among themselves-and usually they can
to accept the court's justice. A gap between the peop
tions and the courts' may have its dangers, of course.
Court has an advantage in that it seems to be moving w
even though it may be rather far ahead of it. It is pos
new jurisprudence will further stimulate adat law c
other reason than the encouragement it may eventuall
to go to court.
The changing character of the judges, here the Supre
but in part lower court judges too, is significant for In
system. It is hard to see how this could have been prev
at first, after the revolution, worked in adat law cases
as he did before the war, as his training and habits
But gradually his views change. More and more he take
interest in the law, because it is his law too. Unrestricted
and encouraged by the national emphasis on social an
political change, he begins to see himself in the role of
creator, as well as law applier. Once having reached
easy to convince himself that his own standards of jus
that should apply, for there are no others readily avai
adat law research is rare and has little prestige compar
studies, and it is not difficult to say that pre-war studi
in the new conditions. But more often the judge is l
65Wirjono Prodjodikoro, "Kedudukan Mahkamah Agung dal
Indonesia," (The Position of the Supreme Court in the Indones
System) Buku Peringatan Dies Natalis Ke-VI, Fakultas Hukum, U
(1956) 81-82.

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that the old rules no longer ought to apply, and so he does not hesitate
to make new ones.
Most of the present Supreme Court judges agree with the new inher-
itance law jurisprudence, though some questioned it earlier. In their
minds the move away from older judicial techniques in adat law cases
is a necessary one, in the interests of justice and modernization. There
is also a feeling that the judge has come into his own. In discussions on
the new inheritance case law, one Supreme Court judge said that these
decisions are not based on any written source or immediate observation,
but are "judge made law." He argued that the judge's sense of justice
should indeed be a source of law.66 Judge Wirjono has expressed the
same view.67 When asked whether the Court had not abandoned
former judicial practices in recent adat law cases, he replied yes, insofar
as that means the judge has now become far more active. The judge
must be active and he must be willing to give expression to his own
sense of right and wrong. For the proper operation of the old judicial
adat law procedures, said Wirjono, there must be continual research.
But there is none now, and there is no time to wait for it. His emphasis,
however, was on the fact that in the pre-war system a judge might have
to decide against his own feelings, and Wirjono believes this should not
be. The judge, in effect, must face the old law with courage, for it is
his ideas that will determine the new law.
Until the lawmakers choose to place a limitation on the courts by
creating new statutory law, it is possible the Supreme Court may some-
times tend to introduce its own cosmopolitan views into the unwritten
law. But there is certainly no guarantee that the legislature or executive
will do otherwise.68 All the more so when ideologically questionable
rules are involved. In the absence of settled channels of communication
and control from society to its governing institutions in Indonesia, it is
unlikely that either legislators or judges can be stopped from running
too far ahead of the countryside. They cannot stop themselves, for there
are few guides to go by. As far as judges are concerned, much will
depend on their creating judicial techniques that will enable them to
help lead the country to new law without placing the law beyond
society's reach.
66Interview of 13 July 1961. This same judge condemned the "miserable" position
of Indonesian women and said that in thinking of his own wife and daughter, he
could not abide by it and must do all he can to improve that position.
67 Interview of 20 September 1961.
68 In the Eight Year Plan, the draft of which was approved in 1961, the National
Planning Council mentions the need for a basic law on inheritance for all Indonesians.
Among other things, the law should provide "(a) that when the deceased leaves
children, whether male or female, all of the inheritance falls to the children along
with the widow of the deceased." Draft Eight Year Plan, Book 4, Volume XII, 2624.
The proposal assumes a strong nuclear family and a widow with full rights of
inheritance.

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The Supreme Court and Adat Inheritance Law in Indonesia

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The Supreme Court and Adat Inheritance Law in Indonesia

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