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Rechtsgeschichte Legal History Zeitschri des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R Journal of the Max Planck Institute for European Legal History geschichte g Rechtsgeschichte Legal History www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg24 Rg 24 2016 266 – 275 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 24 (2016) http://dx.doi.org/10.12946/rg24/266-275 Charles de Miramon Customary Law, Legal Consciousness and Local Agency. From Sumatra to Beauvais circa 1100 and back Dieser Beitrag steht unter einer Creative Commons cc-by-nc-nd 3.0 Abstract In this paper I compare two field studies of customary law in action. Minangkabau in Western Sumatra is home to the largest population with matrilineal property transmission rights in the world. I show how customary law, the so-called »adat«, has been an essential part of the identity of this population, next to Islamic law, since the 17th century. Adat was also shaped by the efforts of the Dutch colonisers to write it down. My second case is set in the French medieval town of Beauvais at the turn of the 12th century, when the town was thriving. I focus on one judicial conflict surrounding a water-mill. The document pertain- ing to this case is the oldest to provide information about customs in Beauvais. This document illumi- nates the evolving legal consciousness of compet- ing groups in the city and the process by which a medieval judge wrote custom down. □× Rg 24 2016 Charles de Miramon Customary Law, Legal Consciousness and Local Agency. From Sumatra to Beauvais circa 1100 and back In the year 2000, the local chapter of the belonging to the nagaris (villages at the centre of an Association of Adat Councils from the villages of adat area). In Minangkabau’s adat, res nullius is an Minangkabau issued a fatwa to settle a long-stand- impossible concept. ing conflict between the village of Lubuk Kila- Thejudgementonthelimestoneconcessionin lang and the cement plant of Padang.1 The fatwa Lubuk Kilalang raises familiar questions for a legal explained that, according to the custom of Mi- scholar. Who can profit from natural resources? nangkabau, the village commons could not be Who manages these resources? Who makes the totally disposed. Therefore, the fatwa invalidated law? How is power shared between local commu- the limestone concession in Lubuk Kilalang com- nities and central authorities? How do cultural and mons that the central Indonesian government had political identities shape legal consciousness? How granted to the cement company in 1972. does custom relate to other legal systems in a As pointed out by Franz and Keebet von Benda- pluralistic legal order? These questions appear in Beckmann, legal anthropologists and specialists of different parts of the world throughout history, Minangkabau culture, this judgement reveals the allowing for comparative analysis. This paper will changing balance in Indonesia between European compare two of these contexts. The first one is or transnational law, customary law and Islamic Minangkabau. I will explore how Indonesian cus- law.2 In 1998, Soeharto fell from power and In- tomary law was shaped by different conflicts relat- donesia started a transition toward democracy ing to Indonesian cultural identity. In the second known as the Reformasi. One of the key aspects of part of this paper, I will focus on a very interesting Reformasi is the rebirth of regional identities and document that shows the birth of medieval cus- the invalidation of concessions granted by the old tomary law in Northern France, in the city of regime to exploit natural resources. These conces- Beauvais around 1100. sions were seen as a magnet for corruption, chan- neling illicit wealth to the dictator and his entou- rage. Minangkabau National Indonesian law is the child of Dutch colonial law. One of the key rules inherited from Duringthelastpartofthe19th century, the colonialtimesistheRomanconceptofres nullius. Dutch started to venture inland on many islands Uninhabited land is res nullius under the dominion of Indonesia.3 The Dutch Ministry for the Colo- of the State, which can grant concessions over it. nies in The Hague encouraged the creation of Res nullius has always been a favoured tool of plantations and mines. Dutch bureaucrats crafted expansive empires. From Rome’s limes to the fron- a colonial legal code that gave an important role to tier in the United States and the jungles of the the concept of res nullius. However, very soon some Indonesian islands, colonial powers have used this Dutch colonial administrators pointed out that legal construction to attract settlers and investment local traditions of property in Minangkabau ran in scarcely populated areas. However, according to counter to the rules envisioned in the ministry in Minangkabau’s adat, a word meaning not only the Netherlands.4 This discrepancy initiated a long customary law but also traditions and rituals, all and divisive conflict among the Dutch colonial the land in Minangkabau is divided into clan zones elite. One of the central figures of this debate was 1 A longer version of this article with a 3Durand (1999). different angle can be found in 4Pistorius (1871). Miramon (2011). 2Benda-Beckmann (2006). 266 Customary Law, Legal Consciousness and Local Agency. From Sumatra to Beauvais circa 1100 and back Fokus focus Cornelis van Vollenhoven, professor of law at the law also has a deep European genealogy. For ex- University of Leiden in the early 20th century and a ample, in France an elaborate process of redac- pioneer of legal anthropology.5 tion of customs started during the 15th century. Van Vollenhoven was one of the leaders of the It would, however, be misleading to consider Adat- so-called »ethical movement« linked to the Chris- recht amereprojectionofEuropeancustomsonto tian-Democratic Party that dominated Dutch pol- distant Indonesia. Van Vollenhoven’s orientalist itics at the time. According to the ethical move- sensibility led him to view Adatrecht as something ment, colonial rule should have a moral aim and a utterly different that should be described with »civilised« framework. Colonisers had moral obli- anthropological tools. gations.6 Oneistorulethecountryaccordingto Van Hollenhoven founded a school of Adatrecht the law of the natives. It was the duty of colonial in Leiden and later in Batavia (now: Jakarta). administrators to discover this law. Addressing the Between the world wars, this school produced a Institut Colonial International at Paris in 1921, Van masterpiece: an eleven volume pandect of Adat- Vollenhoven waxed lyrical and biblical about his recht.8 The University of Leiden was the only plan: training centre for Dutch colonial administrators, illustrating the Adatrecht project’s lasting influence. Though I know all the legal codes of the world, Nevertheless, the project ultimately failed. In the and though I have all knowledge of Law, and 1920s, one of the top civil servants at the Ministry have not respect and love for Oriental customs, for the Colonies, Gijsbertus Jan Nolst Trenité, I am nothing (see 1. Corinth. 13). started a competing Institute of Indonology at the younger University of Utrecht with the finan- Van Vollenhoven called this law the Adatrecht, cial backing of the oil industry.9 Nolst Trenité led combining the Indonesian word for »custom« the »realist movement« that argued that Adatrecht and the Dutch word for »law«. He explained was too fragmented to be useful and could only that Indonesia was divided into a number of hinder the economic development of Indonesia. juridical communities (rechtsgemeenschappen)that The exploitation of oil in Indonesia by Dutch exist above the basic level of clans and tribes. Each companies made the concept of res nullius again a juridical community corresponds to a specific very useful tool. After independence, the new Adatrecht. Van Vollenhoven coined another con- government of Indonesia followed the realist ideas cept, the right of avail (beschikkingsrecht), by which and rejected Adatrecht. a juridical community exerted control over the Much later, the political defeat of the Leiden natural resources of an area of avail (beschikkings- School was followed by an intellectual one. In the gebied). For Vollenhoven, there is a link between 1990s, legal anthropologists and legal historians the inalienability of the commons and the exist- started to challenge the concept of customary law. ence of the Adatrecht.VanVollenhoven’s ideas were According to critics, customary law is not the law clearly rooted in the European legal culture of his of the people but the invention of a legal expert, for time. His geographical model of customs was instance a medieval judge or a colonial adminis- inspired by classical studies of legal history. For trator. These experts transform fluctuating tradi- France,HenriKlimrath(d.1837),ajuristwell tions into fixed legal rules that are then labelled as versed in the German Historical School, wrote a ancient.They impart these laws with a contrived air seminal work on old French customary law, in of comprehensiveness. An Australian scholar, Peter which he drew a map dividing France into multi- Burns, wrote an aggressive book deconstructing ple customs areas.7 The codification of customary the Adatrecht of Minangkabau. Burns called Adat- 5Fasseur (2007) also published in Mommsen and De Moor (1992). 6 For a more general view of Dutch Indonology during the Interbellum, see: Kuitenbrouwer (2014). 7Klimrath (1837). 8 Pandecten van het adatrecht (1914–1936). 9Kahn (1993) 187–190. Charles de Miramon 267 Rg 24 2016 recht amythcrafted by an armchair intellectual. One of the Padris’goalswastosuppressthematri- Indeed, Van Vollenhoven only visited Indonesia lineal customs. The Padris failed, but this war twice and for short periods. He wrote his books revealed the role adat played in Minangkabau in the comfort of his Leiden office.10 identity. Adat was created by local experts, the The deconstructionist trend of the 1990s has Penghulu, in reaction to Islamic law.
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