ISLAMIC LEGAL REFORM IN TWENTKETH CENTURY : A STUDY OF 'S THOUGHT

by

S ukiati Sugiono

A Thesis Submitted to the Faculty of Graduate Studies and Research in Partial Fulnltmmt of Requirements for the Degree of Master of Arts

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Author : Sukiati Sugiono

Title : Islamic Legal Reform in Twentieth Century Indonesia: A Study of Hazairin's Thought.

Department : Institute of Islamic Studies, McGill University

Degree : Master of Ares (M.A.)

The conflict between Bdat law and Islamic Iaw is stili a cumnt issue in today's Indonesia. It is rendered even more controversial because it deais with the sphms of farnily law, marriage law and the inheritance system in particular. This is exacerbated by the fact that Indonesia is home to such a wide variety of social systerns. Family structurr patterns range hpatriarchy to matriarchy and every shade between, with each systcm king supported by a nexus of indigenous or ad& laws. To complete the confusion, there is the residual infiuence of Dutch policy. Of the many attempts that have been made to resolve the situation, the contribution of Hazairin (1 906-1 975) deserves particular attention. Realidng that 8q6 or Islamic law is the product of another place and tirne, he sought to accommodate it more to the reaüties of Indonesian Muslim society. For him this meant abandoning the Dutch legacy of privileging ad& law over Islamic law, and replacing it with what he calied a "bilateral system," based primarily on the Qur7àaand 48dli. This refiected his primary concem to introduce bilateral inheritance (kewan'sm bilata@ into Indonesian law, which he saw as fundamental to the entire social system. To achieve this, he formulated the concept of a comprehensive understanding of the Qur'b and hadité, which he termed "neo- #ti&&$' seeing it as leading to "an authentic t&. "Hezairin also contributed, in other ways, to the development of jurisprudence on fdylaw. He is for instance most famous for his cail for a "National ma&aù" or an indigenous school of Islamic law. Ultimately, his goal was to hornogenize Indonesian law for Muslims and to develop a concept of m&@a with Indonesian charactaistics. However, given the complexity of Indonesian society, Islamic legal reform in Indonesia is stiii far nom complete. RÉsm

Auteur : Sulàati Sugïono

Titre :La réforme légale islamique au sein de l'Indonésie du vingtième siécle:

Une étude de la pensée de Hezairin.

Département :Institut des Études Isluniques, Université McGîIl

Diplôme :Maitrise ès Arts (M.A.)

Le connit entre la loi a& et la loi islamique demeure toujours une question d'actualité en Indonésie d'aujourd'hui. Elle est d'autant plus contreversée puisqu'efle implique tour particuliérement la loi de la famille, le mariage et le système de l'héritage. Le probléme est ex& du hit que I'indonésic inclut une &rancie vari& de systèmes sociaux. Les structures familiales vont du patriarcat au matriarcat, chaque systéme étant appuyé par iin réseau de lois indigènes, dites riciet. Pour compl6îer la confision, il existe une influence rkiiduellt: des politiques néerlandaises.

Parmi les nombreuses tentative efléctuées pour résoudre le probléme, la contribution de Hazairin (1906-1 975) mérite une attention particutib. Réalisant que le iTgb, ou loi islamique, est le produit d'un autre endroit et d'une autre époque, Hnzairin a tenté de mieux l'accommoder avec les réalit& de la sociétt musulmane indonésienne. Pour l'auteur, cela signifiait qu'il faait abandonner l'héritage néerimdais qui privilégiait la loi rsdat aux dépens de la loi isiamique et la remplacer par ce que Hazairin appelait sy~rèmebilarw, fmdé sur le Qur'h et les Hadiths. Ce qui reflétait son int- pour introduire l'héritage bilatérai (kewansan bilateral) au sein & la loi indonésienne qu'il qualimait de ''newijtilrd pouvant mezm B un "t&authantique**. Hazairin a aussi contribué, en d'autres fiiçons, au développement de la jurisprudence de la loi de la fmiüe. il est par exemple cél6bre pour son -1 en faveur d'un ''rn~&rrb ~atiunsl'~autrement dit une école Iégde islamique indigéne. Son bu ultime fut de rendre homogène la loi iiidonésienae pour les musulmans et de développer un concept de mqfaha avcc des caractéristiques indonésiennes. Toutefois, étant donné la cornplexité de la société indonésienne, les réformes légales islamiques dans se pays ne sont pas p&es d'être complétées.

iii NOTE ON TRANSLWRATION

In the tmslitcration of names end Isl-c tenns, we use the system of

Arabic transüteration employed by the Instit rite of Islamic St udia, McGilI University.

The following is a transliteration table for the Arabic alphabet:

Short vowels: L = a, L = u, ,= i.

The definite arîide J 1 is always written d-, regardlcss of whether it is followed by a

The te' mhuta (Z, 2) is traasliterated as "a" rather than "ahw, for exampie, shmn"a rather than Sbad'&, *aga&? rather than ''abab, except it is the first element in a

Indonesian terms are written according to the E&m Babase Irdonesia ymg

Di~~lllpcullakan(EyD) 1972, but the original spelling of names and the tit les of books md articles will be retained when they are quoted. First of ail, praise and thanks are due to Almighty Allah. 1 would like to express my very deepest gratitude to Professor Howard M.

Fedenpiel and Wael B. Haiiaq for jointly supervishg the writing of this work. They were

very generous in giving me their time and advice throughout, and were a major factor in

the completion of the thesis. 1 was aiso fortune to have Dr. Haiiaq as my academic

adviser during the 19974998 academic years. At the same time 1 would also like to

acknowledge the assistance of Prof. A Üner Turgay, Dkctor of the Institute of Islamic

Studies, the Facuity of the Institute, and the office staff. Their help in academic and

administrative matters was invaluable.

1 am grateful to CIDA (Canadian International Development Agency) for having given me the opportunity to attend McGili University by proviâing me with a scholarship. I am also very pleased to thank the staff of the McGill-Indonesia IAIN

Roject for working miracles in organizing the project gencrally and for assisting me in particular. Those deserving especial mention are Wendy Ailen, Joanna Gacek, Lon

Novak and Susy Ricciardeiii in Montreal and Phi1 Williams and Anni Yoesoef in .

1 am also grateful to the Department of Religious Affairs of Indonesia. the Rector of

IAIN SU Medan and the Dean of the Faculty of Shari'a for giving me alI necessary assistance. Nevertheless, I would also like to express my thanks to Prof. M. Yasir

Nasution. the former dean of the Facuity of ShG'a for having given me the encouragement and drive 1needed to pursue my studies.

My thanks are also due to the staff of the Islamic Studies Library, McGiU

University, for facilitating my research on this thesis. 1 would especiaily like to mention the contributions of Salwa Ferahian and Wayne St Thomas. They made the library a

pleasant place to work. Nor can 1 forget to thank Stephen Millier for his editorial

assistance in comection with this thesis.

A special note of thanks must be addressed to ail my fiiends, most of whom, of

course, 1 cannot mention here aii by name, for their support and encouragement in

helping me and making my dream to study abroad corne tme. 1 also benefited a great deal fiom discussions with fnends pursuing their Ph.D.s. Without their help, none of this would have been possible. 1 wodd, however, especiaily iike to thank Harjuni Leho Tallei for lending me support when 1 needed it, to Miftahul Huda for giving his assistance in fmding data and sources in Indonesia and to Euis Nurladawati for providing information fkom Leiden University.

My deepest thanks and gratitude are due to my mother and father, who have always given me inspiration and spirit, and who have contributed immeasurably to my appreciation for the meanhg of Me. Their continued support hes made it possible for me to spend this time et McGiil. This work is dedicated to them.

AU are now beyond the reach of my th&, but my indebtedness to them remains.

Montreal, June 1999.

Sukiati Sugiono TABLE OF CONTENTS Page

Abstract ...... ü Résumé ...... iii Transliteration ...... iv Aclcnowledgements ...... v TableofContents ...... vii Introduction

Chapter One :Haniria: A Biographical Sketch ...... 7 A . His Early Life and Education ...... 8 B . WSCareer ...... 15 C. His Works ...... 20 D . His Concerns about ...... 26

Chapt er Two : Hazairin's Legal Thought ...... 31 A .On the Receptie Exit Theory ...... 31 B .The Bilateral System ...... 46 1. The Indonesian Social System ...... 46 2. Hazairin's Bilateral System ...... 52 C. On the Institutionaikation of Islamic Law ...... 67

Chapter Three : Hazairin on Specific Issues ...... 74 A . Hazairin on Inherit ance Issues and Responses ...... 75 1. On Inherït ance Issues ...... 75 a. '%ptba ...... 77 b. Orphaned Children as Substitute Hein ...... 80 c. Kd.' ...... 83 2. Responses ...... 88 B . Hazairin's Impact and Contribution towards Indonesian Legal System ...... 93 Conclusion ...... 104 Bibliography ...... 107 INTRODUCTION

Hazairin (1906-1 975) was boni to a family that could boat two generations of

Indonesian inteliectuals, and as one privileged to contribute to Indonesia's coming of

age, was to make a substantial contribution of his own to the country's inteliectual

development. He participated in the wide-ranging debate over solutions to the

stagnation of the development of Islam on the one hanci, and over a possible reconciliation betweni Islamic law and a& law on the other.' The former issue invited remarkable discoqse on the need for flti5d (mental exertion), whiie the latter chdenged legal scholsrs to decide whether or not 8dat and Islamic law could go haud in hanci.'

Hazairin appears to have tried to reconcile Islamic law and sdet law fiom an

Islamic legal standpoint, based on the premise that Islamic law is a product of interpretation of the Qur'k ikom both the social and cultural perspectives. On the other

1 At the end of nineteenth and the beginning of twcntieth ccntury Indonesia, the development of Islamic law was considercd stagnant due to the beiief that the gate of #t.idwas closcd, giving risc to the practict of raqG4 bid'4 and kbrnafat. This in tum led to calls for reform such as "back to the Qur'èa and the hadith" through fie& attempts at gtibs'd Such theme was proposeci by for example, , Ahmad Hassan and Hasbi Ash Shiddicqy. Fo their proposais see Sukarno, "Surat-Suret Islam dari Endeh," in Di bawah Bendma RevoIusi @Jakarta: Panitya Di bawah Bendcra Revolusi, 1964); Yudian Wkyudi, "Hasbi's Thtory of &tibidin the Contcxt of Indonesian Fi@' (M.A. thesis, Inst itute of Islarnic St udics, McGill University, Montreal, 1993); Akh Minhaji, "Ahmad Hassan and Islamic Lcgal Reform in Indonesia (1887-1958)" (PhD. diss., McGU University, Montreal, 1997). At the same time the problem of rtlationsbip between and Islamic law raised and propos* made to ovtrcome them. aftcr aii are strongly attached to th& traditions, so thcrc is no wonder that Islamic law had difficulties in its encornter with sdat.

Thcn wcn two assumptions as to the iclationship bctwecn adar and Islamic law; that they arc in confikt and that they are in a harrnonious rclationship. Evcn though the latter bas bccn widely debated, it is gencraUy rejcctcd in view of Islamic legal viewpoint. Ratno Lukito, "Islamic Law and Adst Encounter: The Expericnce of In&nesiat (M.A. thesis, htitutc of Islamic Studies, McGiU University, Montreal, 1997), 4. hmd, Hazairin's postdate is grounded in the fact that Islamic law, especially in the

sphere of family law, was inconsistently applied within Indonesian society due to the

various social systerns in force and the prevalence of adat law.

His ideas emerged in thestages. In the fîrst place he reaiized that inconsistency in

applying Islamic law and the stagnation of Islamic legal thought in Indonesia had been

caused by a legal system inherited fiom Dutch govemment policy. Therefore the

Indonesian legal system had in the first place to be liberated fiom the lasting influence of the Dutch. Second, he had corne to the conclusion that Indonesian Muslims needed an

Islamic law with Indonesian characteristics. Thus Islamic law had to be refonned and brought into line with local conditions. Findy, he became convinced that for reform to be enective, the govemment had to implement it and enshrine it in law so that it might apply to aii Indonesian society. His specific solutions to these thne problems, were, respectively: the receptie exit doctrine, designed to challenge the receptie theory of

Christian Snouck Hingronje; a proposal to institute a "bilateral system" in Indonesian family law, based on Islamic and adat notions; and lastly a national madabab (school of law) designed to meet society's needs. For aii of the above, moreover, 'heo-#t.iid' was an essential tool.

Hazairin's actual contribution to Islamic legal refomi may be seen in the Undang- undang Pembangunan Nasional Semest a Delapan Tahun 1961-1 969 (Eight Year

National Development Plan, 196 1- 1969). Point 402, subsection 4, which legalized the existence of a büateral inheritance Iaw; it was decreed by the Madjelis Pemwjawaratan Sementara (MPRS or National Comdtative Assembly) on Decemba 3, 1960, no. II?In

the latter case his contribution may especially be seen in the definition of substitute

heirs and kalala (one who has died without sons ador father).

Until recently Hazairin was ignored as a contributor to Islamic law and scholars

ignored his proposa. to institutionalize blamic Iaw and formalize the Islamic legal

system of Indonesia. Whüe his eminence as a legal scholar in Indonesia has been

acknowledged, especiaiiy in the field of adatlaw, his status as a scholar of Islamic law is

a more controversial matter. An important reason for this controversy is that Hazairin never studied at an Islamic educational institution. According1y hîs Is1a.c legal contributions were often downplayed or even ignond by some reformists and legal scholars. This may explain why in some refcrnice sources on Indonesian Islam

Hazairïn's name is not even cited.' Despite this fact, scholars who take a broader approach discuss him at some length, dthough not necessarily hmthe standpoint of

Islamic law.

Among the Indonesian language worh that have focused on Hazairin, we hd, for the most part, studies of specific aspects of his thought . Damah Khair, in his Hukrmr

Kewansan ~Wamdi hdonesia: Suatu Kqi'au PemIIUklranHazarrUl (Islamic Meritance

Nur Abiiuid Fadhil Lubis, 'Wamic Legal Litmiturc and Substantive law in Indonesia," in Sftadia IsIamikg 43(1997): 54. His input was sevfft1y criticized by 0thscholats and rejected. See Sajuti Thalib, SWUBar Hukrrm Nwimal: Azzs-aas Tata Hikm Nksional ddam Bidaqg Hukznn W& (Djakarta. Panitia Seminar, 1963).

4 Hazairin receives no separate cntry, for example, in thrtt cncyclopaedias of Indonesian Islam. The threc arc: Tim Penyusim Pustaka-Azet, k.&mIsidm (Jakarta: Pustazct, 1988); kwan Redaksi Ensiklopcdi Islam, cd., EnsMopedr ikiam hdmesia (Jakarta: Icthtiar Bani Van Hm, 1993); and Hanm Nasution, et al., cd., Etziciklopedi Hàm (Jakarta: Departmcnt Agama RI, 1987). Law in Indonesia: A Study of Hazairin's ~hought))discusses Hazairin's position on

Indonesiau inheritance law, but devotes little attention to his contribution to the overd

Indonesian legal system. Al Yasa Abu Baicar hes given thorougb attention to Hazairin's

disposition on blood-relation heirs in his dissertation entitled "Ahli Waris Sepertalian

Darah: Kaji an Perbandingan Terhadap Penaiaran Hazairin dan Penelaran Madzhab"

(Blood-relation Heirs: A Cornparison between Hamirin3 Thought and fiqh ~a&a&) .6

Iskandar Ritonga for bis part discusses Hazairin contribution in his "Pemikiran Hazairin

Tentang Pembaharuan Hukum Islam di Indonesia" (Hazairin on hlamic Famiiy Law

Reform in ~ndonesia),' but bis treatment of Hazairin's ideas on the institutionaüzation

of Islamic faw lacks substance.

Moreover, to xny knowledge, there are not many works written on Hazairin in the

English langage. Yudian Wahyudi, for example, in his "Hasbi's Theory of @fihiidinthe

Context of Indonesian fiq#'* touches on Hazairin and his role in legaî reform in

twentieth centtny Indonesia, but devotes only a few pages to the topic. Akh Minhaji,

"Ahmad Hassan and Islamic Legal Reform in Indonesia" deals more with Hazairin's

ideas but discusses them only fiom a historical perspe~tive.~Moreover, neither of them

treat s Hazairin's subst ant id contribution to legal reform.

-- - Damah Khair, Huktna Kewdan Wuri di b>dnt=sia: Suatu Kiyim P-m Haz- (Bandar Lampung: BPPM iAIN Raden Intan, 1995).

Ai Yasa Abu Baicar, "Ahü Waris Sepcrtalian Darah: Kajian Perbandingan Tcrhadap Pcnalaran Hazairin dan Penalaran Fiqh Madhhab" (Ph.D diss., IAIN , Yogyakart a, 1989).

7 Iskandar Ritonga, "Pcmikiran Hazairin tcntang Pcmbaharuan Huhim Islam di hdoncsia" (MA.thesis, fAIN Jakarta, 1995). a 'Yudian Wahyudi, "Hasbi's Thcory of #tibBdi. thc Cont cxt of Indonesian Fr'qb," 3 1-2. 9 Akh Minhaji, "Ahmad Hassan and Islamic Lcgal Refom in hdoncsia (1887-1958)," 59-61. This thesis is therefore based on the pnmise that Hazairin's contributions to

Islamic legal reform for indonesians have been severely underestimated, especially in

view of the fact that there are no full-length studies of this aspect of his thought. It will

thus focus on Hazairin's overall legal understanding and show the extent of his attempts

to maintain Islamic legai provisions within Indonesian Zaw. This means that bis

treatment of Islamic law wiU be seen in the context of the relationship of Islamic law to

a& law, in which latter field he had the most extensive training. To ignore this

connection would lead to a one-sided discussion or simply a partial understanding of his

legal thought. Finaily, the thesis will also show that Hazairin, despite being

misunderstood by othets, was concemed about Islam and saw a role for it in the legal

make-up of the country.

Although some works may have aiready touched on my theme, Hazairin's thought

cm serve as a basis for a general assessrnent of the dynamic of Islamic law in the

twentieth cent ury Indonesia. Moreovei, Haairin may be distinguished &om other

Musiirn reformists since he is considered to have been a secula. scholar on the basis of his educationd background.

Furthemore, the study wiii endeavor to transcend earlier attempts at approaching the subject matter; to this end historical and legd approaches will be relied upon to provide a description of Hazairin's legacy in legal reform. To some extent, a comparative approach will also be applied to grasp the significance of the refonns proposed by Hazairin and those suggested by other scholars.

In order to appreciate Hazairin's legal thought and contributions, we will rely prirnarily on his own works, although in analyzing bis ideas recourse wiii also be had to secondary sources. The works of Hazairin himself are varied, and including monogaphs,

articles and speeches and reporis. Works by his contemporaries are also valuable as

sources for his thought and aid in our comprehension of Hazairin's discussion.

In addition to an introduction and conclusion, the thesis will be divided into three

chapters. The first chapter offers a biography of Hazairin, and will give an account of his

early iife and education, his caner, and his work. It wiU then go on to deal with his

concem about Islam to measure his acquaintance with the Islamic discipiines.

The second chapter will be devoted to Hazairin's legal thought as a whole. This

chapter will deal with his concept of receptie exit as a reaction to the law inherited fkom

the Dutch. We dlthen look at bis proposai of a "biiateral system" as a means of

bridging the gap between the Indonesian social system and Islamic Law, especiaily in the

sphere of family law. His intention to institutionalite Islamic law at the level of statute

is also discussed here.

The last chapters wiil focus on the specific issues of Islamic legal thought that he

addressed, part icularly the issue of inherit ance law and t be lack of compat ibility

between Islamic law and sdat law. Here we wiil address thne topics, which may be

regarded as representative of Hazairin's concept of the bilateral system. The three are:

'k@a (collective transmission of inheritance property to male agnatic) ; orphaned

children as substitute heirs; and k&. His contribution to the general institutionalization of Islamic law and the impact of his efforts will also be addressed in this chapter. CHAPTER ONE

HAZAIRIN: A BIOGRAPHICAL SKETCH

Hazairin has been acknowledged as a prominent figure in Islamic Iaw and a&

law? His qualifications in Islamic law were not gained through formal study in any

Islamic school, however he was an autodidact whose great work in Islamic law gained

him authority in the field. Given this fact, he was not much respected during his iifetime

by Mulims for his work on Islamic law. His expertise in a& law, on the other han&

was indeed achieved through fond schooling in the Dutch government period. His

dissertation on this subject raised him to the status of an authority. This chapter

provides a bnef account of Hazairin's life, looking at his farnily, personality, education,

school activities and career. It also surveys his published works.

'~dstis an Indonesian word tbfiom the Arabic word 'iaa (synonymous with '4which essentially means habit, custom, usage, or practicc. Furthermore, $da means %petition or recurrcnt practicc, which can be used for both individuais ( 'idab f~~&yab)and groups ('&t'ab jamXyah)." -ad Fahd Abu Siana, Ai- 'Ur/ wa al- '&da fiRa 'y al-Fuqabs" (o.p. : Matba'at al-Azhâr, 1947), 7-13; for more details on 'ada and 'udalso, Mohammad Hashim Kama, Pnhc~pIcs of fi2dlzu'c Jiu'sprudence (Cambridge: Islamic Text Society, 1997), 283 -84. Maammad Mustafa Shalabi, Us2 &Fi@ al-lsIa (Bcimt: Diir al-Nahdah aL6Arabiyah, l406/1986),3 13-15; Sub. Ma!un@iti, F'afet al-TdCfi al-hl& @cirut: Dir al-Kashshif li al-Nash.wa al-TibZ'a wa al-Ta&', 137111952), 179-8 1.

He was a professor on ndst Iaw and Islamic law in the University of Indoncsia during the period 19524975. B. J. Bolad, ne St;nl&PIc of &fam ia Mihdaiesia (The Hague: Martinus NijhoE 1962), 168-9. A. His Early Life and Education

An only chird, Hazairin was bom on 28 November 1906 in Bukit Tinggi, West

Sumatra and died on 25 December 1975 in lakartq3 at the age of 69. His father Bahari

and his mother Rasida were Bengkuluuese and Minangkabauan, respcctively. This type

of marriage was unusual et the time, even though the Minangkabauens social structure

made exogamy a fimdamentai practice. People were dowed to marry withia their own

country (mg=) and even within their suku (in the sense of a union of clans), as long as

they married into a clan other than their own: but marriage to people âom other regions

was unusuai. Nevertheless. maxxiages between a Minangkabauan women and

Bengkulunese men did sometimes occur, because both were hown as tribes given to

out-migration.'

Hazairin spent his early life in Bengkulu and Minangkabau, before eventuaiiy

moving to Jakarta It was in the first two ngions, renowned for their religious charactq

Daimah Khair, Huhm, Kewsrirar, hIam

C. Van Voiicnhovcn, Vm Vole&oven on hdonesiaa Adat Law trans. J. F. Houeman, Rachael Kalis, and Kenneth Maddock (The Hague: Martinus Nihoff, 198 1), 134.

Khair, HeKewmsm, 17-8. that he reccived his primary schooling. Mhangkabau6 in particular af5ected his lata

thought on Islamic fdylaw due to its matdineal system. There he witnessed at first

hand the confïict and compromise between its BdBt and Islamic law, which is considered

to be influniced by patrilineal bis, in the area of family law, especialiy marriage and

inheritance.

Accordhg to fdytradition, he was descended fiom a Persian ancestor who took a

particular interest in philosophy. It is reported that his grandfatber Bakar was a religious

fi- and his great-grandfather Leman a direct descendant of the Persian ancestor,

although the exact Une codd not be substantiated.' Even so some scholars have

attributed Hazairin's thirst for knowledge and zeal on behaif of his people to masons of

heredity.

He married Aminah, whose parents were &O Bengkulunese and Minangkabauan.

He and his bride therefore shared a common background and experience of the customs

of two regions and of two systems of a&. His mmiage was a happy one, producing 13

children--seva daughtm and six sons.9

6 Thesc rtgions, espccially Minangkabau, are worth noting, since their inhabitants foliow a matmeal kinship systcm. The region is nevertheless regardcd as one of the most Islsmizcd regions in Indonesia. G. H. Bousquet, A Fm& Viem of the Net&erfands&dia, trans. Philip E. Lilienthal (London and New York: Mord University Press, i940), 6. mir systems of inhcritancc Later infiucnccd Hazairiu's thought on how a bilatexai system shouid be Unplemented in Indonesia

7 Damrah Khair's interview with Zulkarnain, one of Hamirin's sons. Khair, Hukraa KewmSm, 124. His education was essentidy European in cheracta. He graduated in 1920 fkom the

Hoiiandsche ïniandsche School (HIS), a elementary school in Bcngkulu,

and again in 1926 nom the Middlebare Uigebreid Lager School (MULO) at . He

acquired his early education in his own country, and yet it was unusud in

Minangkabauan society for a son to pursue his study at home, so close to his parents.10

Perhaps this was because Hazairin was the "apple of his parents' eyes," and they would

not have been happy to see their only son move far away.

There were two systems in education of Hazairin's day made available to native

Indonesians. The first was offered by the pesmfrens (Islamif boarding schools), which focused on religious howledge. The second was that provided by the Western educational system estabiished by the Dutch govemment, which aimed at preparing students for lower and middlelevel administrative positions in govemment. However, few people were able to take advaatage of these educational opportunities, especially those provided in the Western schools, as space was limited." Stiii Haairin did not study at a pesaam but Mead attended a Dutch school, which at the the was considered in certain quarters to be an infidel institution and a sure path to hell.12 This

'O A Minaagicabauan man is hiown as pcirmtau Le., one who needs to migrate for study and to earn his livelihood. The social system of the Minangkabau, which favors women over men, is one factor that has Ied to this phenornenon. Govindan Unny. JUDslbp Systcm in South aod Sou~eastAsia: A Study (New Delhi: Vikas Publishing House, 1994), 37-8.

" Nevtrtheless, Europeans and Eastm forcigners (the Chinese and the Arabs) had access to western schools of the highest quaiity. Sattono Kartodirdjo, Modm ludonesi4 Tradition and Trattrformation (Yogyakarta: Gajahmada University Press, l984), 119-20.

12 At the timc many parents or grandparents forbade leaming of the Dutch language or even Latin aiphabet, which they regarded as the language of unbelicvns, and a sure path to ettrnal pmishmcnt. Hanm Nasution, for example, encountered this attitude. Sec , "Mtnycru Pemikiran Rasional," in Panitia Penerbitan Buku dan Seminar 70 Tahun Nasution was unusual because sending a son or daughter to study Islam in a boading school was

much more popular. With al1 this in mind, the fact that Hazauin went to a Dutch school

has pdedsome scholars. Abdullah, however explains the tendmcy to send Indonesian

children to Dutch schools as indicative of a desire on the part of parents to broaden their

children's opportmities. His cornplaint in fact is that thex were not enough of those

schools." For this reason, in view of his family's pn'brmu'(indigenous) statu, Hazairin

was rather lucky to have attended a Dutch school.

ui 1927, the young Hazairin moved to where he continued his studies at

the Algemene Middlebare School (AMS). a generai high school. Graduating fiom there,

he went to Jakarta in 1935 in pursuit of higher studies at the Recht Hooege School

(RHS), a school of law. Mer completing his studies he stniggled for the next eight

yean with research on Iegal topics, especially on the subject of ad& law. At the same

institution he finished his dissertation on B Rdjaag (Today is Rejang, a name of a

town in Sumatra selatan)." This eamed him the degree of Miterio de R&ten (MR,

master of Laws), the Dutch title for a scholar of law. Later on, it also gave him prestige

------Bekejasama dengan Lcmbaga Studi Agama dan Fiisafat, cd., RefleksiPembabman Pcrmrmkiran ~~~:70 T'lm Hanrn Nasution (Jakarta: Lembaga Studi Agama dan Filsafat, 1985), 5.

" Taufik Abdullahs Scbools and Poliiics: The Katua Muda Mov~a>rir> W& Sumatera 1927- 1933 (Ithaca: ComtU University Press, 1971), 56-7.

14 His dissertation surveys adat mdagc law in Rejang - a town in Sumatera Selatan province - whtre marriage customs are similm to those of the Bat& although they are a diffcrent clan. Under the supervision of Mr. B. ter Haar, Wazairin completcd his disscrtation in ody threc months, rtceiving in the end a grade of slzmma cmIaude. Sce Khair, Hukum Kewarisan, 21. See also Potan Arif Harahap, "Prof. Hazairin Dal' Kmangaa,' in Sajuti Thali'i, cd., P~mbabaruanHukrna Islam di &donesid (Jakarta: University of Indonesia Press, 1976), 57. For the dissertation, set Hazairin, De Rdjfaalg(Bandung: ACN & CO., 1936). It is reportcd that this dissertation has bcen translatcd into Indonesian but not yct pubiïshed. Iskandar Ritonga, "Pemilriran Hazairin Teatang Pembahanian Nukum Islam di Indonesia" (M.A. thesis, IAIN Jakarta, 1995), 17. and entitled him to act as an adat legal adviser.'' At that time, he was the only

Indonesian ever to have obtained a master's degree et the law facuky. Indeeà, he was

only 29 years old, an age then considered quite young for such an achievement.

Because he pursued his formal education in the Dutch system, his family made

itself responsible for his reiigious education. His father, bis grandfather - bath well- lmown religious leaders - and other relatives and firiends tried to ensure that he had a

basic grasp of the fundamentals of his faith. in lata years, however, Hazairin acquired

much more knowledge of the Islamic disciplines through his own efforts. This

disciplined attitude enabled him to master six foreign languages by hirnse~f.'~In view of

this fact it is easy to undentend how he could become sa weU-versed in the Islamic

discipiines without having andergone academic training in the field. This newly-

acquired knowledge of Islam thmfore supplemented his formal training in adel law." In this way he differed fiom ~asbi,'*the famous Sumatran scholar, who spent his life in pesmtrGa, mahg him a Myqualified Islamic scholar, while at the same time

Is Daniel S. Lcv explaineci that Hazairin was choscn by the Dutch govenunent to be one of its advisors on ad& law in addition to , Joyodiguno, and Wirjono Projodikoro (Hazairin's coueaguc and ad& scholars). During his association with Hazairin during 1960-1964, Lev fomd Hazairin to be an inteIligent and spiritcd scholar. Daniel S. Lw, interview by author, 13 May 1999, Montrcal, t apc rccording, Quality Hot el, Montreal.

16 Ai-Yasa notes from his interview with Haziiirio's family that hc mastercd six languages besides his on:Dutch, English and French actively; Arabie, German and Latin passively. Sec al-Yasa, Mi WdnS ScperfalimDd, 7.

17 His speciaity was family law and more specificalIy the diffcrent inhcritancc laws of the country. Nur A FdM, "Islamic kgal Literatute and Substantive Law in Indonesia," Studilo ~Iuu&%, 413, (1997), 54.

I8 Hasbi was fiom Aceh and voiced a similar notion to Hamirin's in caiiing for a ma&&ab for Indonesian Muslims. See Nourouzzaman Shiddiqi, M&~mmad Wmbi A& Studdcey dal' Pwspckîif Sqarab P-an Islm dihdonc.ri8 (Yogyakarta: IAIN Sunan Kaüjaga, 1987), 158. deepening his knowledge of daton the side. Hazairin's background later led some of his

critics to deny his competency as an authoritative Islamic thinker.

Hazairin was weil loved by fiends and students aiike for his humorous and lively

personality, and was extremely popular as a lectured9 His students were nevertheless

said to resent the tough questions he posed while teaching, since he scolded students

who failed to answer his questions correct^^.^^ As well, a student would often have to

repeat exarns in order to pass his course^.^' But all apparently were proud to be

numbered among his pupils. Hazairin's competency in his subject matta ensured that

students were able to master the main elements of each subject? He held students to

the same standards of work he imposed upon himself, and insisted that to be a student

one needed to have sufncient seriousness and avoid speculation.

In addition to his fomful approach, he spoke in a way that sometimes offended

those who were not acquainted with his personaiity. Hazairin himself explained that the

reason for his strictness and ngor was that he considered his relationship with a student

an important responsibility. In a speech deiivered to the Law Faculty of the University

of Indonesia, he point& out, ". ..for me, the relationship between a teacher and a student

l9 Pot an Arif Harahap, 'Trot Hazahh," in Sajuti Thaiib, cd., Pcmbabmm Hukrrm Man, 95.

'O Potan Arif Harahap, "Hazairin dalam Kenmgan," in Sajuti Thaiib, ed., Pcmbabanrao Hikm Islam, 95.

2 I Hasbullah Bahy, "Scgi-segi Mcnarik dari Kcpribadian Prof. Dr. Hazairin S.H.," in Sajuti Thalib, cd., Pernbab~~~aoHu;kzaa Islam, 29.

a Hasbuiiah Bakry, "Scgi-scgi Mcnariic dari Kepibadiari Prof. Dr. Hazairh," in Sajuti Thaiib, cd, Pcmbabmao Hukum hiam, 29. is that of a father and a son."U He was also weii lmown for his fundamentai approach to

certain topics, on which he held strong beüef This may be seen, for example, in his

attitude towards the application of criminal law in Islam, something he regarded as

necessary for Indonesian ~uslims.'~

But he was not always austere. He had a sense of humor and liked to mock a person

just to entertain him. He liked to joke at public forums, in class or in private

conversations. He also did this in his writing. For example, in his comment on M.

Amin's book hdoaesia Dihiwal, Rezim Dernohi Tqirnpia (Under the Regime of

Guided Democracy), Hazairin wrote, 'When we D.e., M. Amin and himselfl wen

students, he liked to borrow my dictation, but was slow to retum it. Thus 1 had to

extend the length my studies to eight years, while hc happiiy completed his in six,

without giving me any compensation."^

He was also humble before people, even when proposing something new which he

believed to be right. As an illustration of this, he once said to an audience:

What 1 want to achieve is to give you a brief description of how the Qur'in and the Prophet managed Islamic criminal law without the use of any jail. 1 may have committed an error, mistake or oversight in the conclusion, for which I apologize to you all and to God. 1pray to God to

13 Hazairin, Kesmifaan dan Hukrrm (Djakarta: n.p., 19S2), 18.

24 His ideas on the application of fslamic criminal law, among 0th things, focus on its codification in Indonesia. Hazairin, Tg*& Smmgkai Tcofmg Hukrnn (Jakarta: Tint amas, 1974), 50. For 'orher explanation sec Hazairin, "Negara tanapa Pcnjara," in Hazairin, Scmqgkai TmtqHukrrm, 1-26. Hazairin, HumPidana IsIm Ditajeu dan Scgi-semi Dmar- dasat dm AS&S-&SBSTata Hukrna Niwional Ojakarîa: Tintamas, 1968). Hazaùin, Thjaum Mkqpnai Und'-mdaqgPwhwiaan Nomor I-1974(Jakarta: Tint amas, 1 M),9.

S. M. Amin, "Mcngcnmg Almarhum Prof. Mr. Dr. Hazairin," in Sajuti Thdib, cd, Pmbaaaruan Hukzna hfan2,95. show us the way out and to find the right method of realin'ng what society needs in these modem thes?

B. His Career Hazairin actually had two careers: one as an academic, the second as a politician,

nationalkt and administrator. He began his academic caner in 1935 as a junior lecturer

soon &a his graduation fiom the RHS in the University of Indonesia. He taught adat

and ethnology in the Law Faculty of that institution until1938.

He gave up this post to work on the staff in the law court in Padang Sidempuan,

Tapanuli Selatan in the southern part of North Sumatra. He held this post fiom 1938 to

1942. when the Dutch appointed him as an sd't researcher for North Sumatra. He also

became an assistant at the residency in Tapanuli, an opportunity he used to become

involved with the Batak people of Tapanuli Selatan, and to study their sdat and

traditions. In this way. he was able to confhhis own loiowledge of adet as a discipline

of law, and to continue his fieldwork on the Batak. He wrote two interesting research reports written in good ut ch," De Gevolgeo Vm De H~hontbLaridiqgh ZZuid

Tapmuli (The Consequences of Divorce in Tapanuii Selatau) and Reorgmsatie Veo Het

Recbtweseo in Zcrid Tapaad (Reorganization of Law in Tapanuli Selatan). For these two studies, the R@ Adat or the head of the Batak clan awarded him the honorific tit le of ~8ogr-an~~aa~yd ~àrha~."

Lev, inte~ewby author.

" This title was bcstowcd on Hazairin in recognition of his membership in the clan. Tim Redaksi Majalah Tempo, Apa dm Siapa sqe/umlahOrmg hdonaia 1981-1982 (Jakarta: Grafiti Pers, 198 l), 2 19. a During the Japanese occupation, Hazairin became a legai advisor to the gova~~~~e~~t of occupation and was &O active in various organizations working for Indonesian

independence. In 1945 he joined the guerriila underground in order to oppose the

Japanese. He was a leader of the Dewan Pertahanan Daerah (DPD) or Council of

Regional Defense, which tried to consolidate power in certain areas. Between 1945 and

1949 he served with the Student Force in Tapandi Selatan and Bengkdu, whereas for

the period 19494950 he was commander of the Student Brigade in Sumatra selatadg

While active in the revolutionary movement he also took part in administrative and

political activities. From Febmary to April 1946, he was a regent in Tapanuli Tengah,

Sibolga, in North ~umatra?He also held a position in Tapanuli Selatan as both director

of the civil court and pnsident of the Komite Nasional Indonesia 0 or Indonesian

National Committee. Moreover, nom 1946 to 1950 he served as residency president in

Bengkulu and, at the same time as an assistant military govemor of the province of

Sumatra Selatan. There, he tried to reorganize and improve the quaiîty of religious

officiais in the area by requiring them to pass an examination. At the same time, he held

that religious courts should have no jurisdiction over inheritance law, which accorded

with the established Dutch view on the subject. Daniel S. Lev comments that this idea

reflected his 1930s training in ad& law in Tapanuli, where he was taught that

inheritance was merely a matter of adat law?' Officiais at the Ministry of Religious

29 Tim Rcdabi, Apdm Siapa, 2 19.

'O S. M. Amin, Wcngenang Aimarhum Prof MR DR. Hazainq" in Sajuti Thalib, cd., Pembabdtuan Hukrna Isle 97.

3 1 Daniel S. Lw, Mamie Coutts itl fadonmis A Study &I the PoIitical Bases of Legd Iizrtirutjom (Berkeley,Los Angeles and London: University of California Pxess, 1W2), 9 8. Affairs, who retained the purïst Muslim perception that Islamic law was superïor to adat

law, were angered by this statemcxd2

In 1948, he also became vice-president of Part ai Persatuan Indonesia Raya (PPIR)"

based in Yogyakarta, which wes then headed by Wongsonegoro. Shortly thereafta he

accepted an appointment to serve as a civil law deputy, a post that he held nom 1950

to1953, which period marked the height of the liberal Democracy rra. During his tenure

of this office he drew attention to the fact that Islamic courts had no basis in law at ail

in Sumatra, and stated that they should be closed down. This again angered many

scholars, but Hazairin stood his ground, and criticized the religious courts for taking

little notice of modemist legal ided4 He observed that adat law was responsive to

social dynamics and accommodatïve to Islamic law, even though adel legalists disregard

this fact, and consider ad& law to be fio~en.~'

Th& to his position in the PPIR party, he was appointed Minister of Intemal

Mairs at some time between 1953 and 1954, but resigned nom that position when Ali

" Lev, hi~mr2Courts, 87-8. '' Partai Pmatuan Indoncsia Raya (PPIR) or Great Indonesia Unity Party, was an organization convoked by nationaiists who were at thc timc uainvolved in any political party. It was kd by Sunardi Wongsonegoro and had 20 membcrs scatcd in Dewan Perwakilan Rakyat Sementara, and thrce in the cabinet, including Hazairin. Nevertheless, at the 1954 Congrcss, this party brokc into two factions, one pro-Hazairin, the othcr pro-Wongsonegoro. Thc party disbandcd &cr its poor showing in the gencral election of 19554956. Soebagijo 1. N. "Hazairin," in Nugoho &ai., cd., EbiWopedi N&rronalhdonesia (Jakatt a: Cipt a Adi Pus t &a, 1989). 374.

'* kv,inte~ew by author. Sastroamidjoyo refomied his cabinet that year?6 ActuaUy Hazairin was the focus of a

dispute at the tirne, having disagreed with his party's leader Wongsonegoro over the

economic policy foiîowed by the govemnient.)' As the result of the dispute, the PPIR

split into two wings, Hazairin's and Wongso's. On 21 Iuiy 1954, the PPIR congress

discussed the situation and there was a general cali for party members still in the

govenunent to leave the party. Hazairin and his supporters formed an alliance with the

opposition party that at the time was asy yu mi?^

Wongsonegoro's support came fiom the Javanese branches, while Hazairin's came

fkom those members of the PPIR who had joined the cabinet of Sastroamidjoyo.

Sastroamidjoyojudged that this fight would create trouble for the parliament anci, on 18

November 1954 completely reshufned the cabinet .39 It was at this point that Hazairlii

took up his last official position as assistant to the Ministries of Justice and Education, a

post that he held until 1959.

It was usual for an Indonesian scholar to pursue more than one career or interest,

especiaily when social problem demanded so much attention. Hence, while his political

career was underway, he was also active in Islamic and academic affairs. in 1950,

Hazairin and his coiieagues established the University of Islam Djakarta. He became a

rector of that University and dean of the law faculty there. He was also a professor of

36 Ai Yasa, Hukum Kewmsm Semalim Dard, 6. Set also Hasbullah Bakry, "Scgi-segi yang Men-" 29.

" Aü Sastroamidjoyo, Toaggak-ton&~akdi Pejalmanku (Jakrirt: Kint a, 1974),306-307. " S astroamidjoyo, Ton&pak-ton=& a? P 325.

a S astroamidjoyo, Toaapak-torl~i~akdi Pq'almmkq 327. Islamic and sdat law et the law faculty of the University of ~ndonesia,~which officidy

recognized his professorship in adat and Islamic Iaw on 13 September 1952. On that day,

he delivered the required acadernic acceptance speech, choosing to speak on morality

and law (kamiiaim dm huh).*'

He also began teaching at the University of Indonesia fkom the year 1950.4 where

he offaed a course on the teaching of "special Islamic Law," as he refemd to it.43 He

was professor at several universities, including the Perguruan Tinggi Ilmu Kepolisian

(Institute of Police Science) and Pergunian Tinggi Hukum Miiiter (Institute of Military

Law). His courses in Islamic law drew the particular attention of his students, because of

its "spirit of ref~m,'~which was very new at the time. This approach, which Hazairin

called "a concrete scientific refor~n,'~'is unique in the way it relates to his anaiysis to

the Qur'k.

This indicated his concem with islam,' a concem that led him to comlate his teachings with legai reform. It is important to note that his idea of Islamic legal reform

a Boland, nie StrqggIe ofIslam ia ModaD hdonesis, 168- 169.

Hazaina, KesusiIaan dm Wukrna, titlc page. Hcre, hc explains that the low should contain spiritual and cthical values.

" Hazairin, Kuusiam dm Wukunz, 4.

43 Bakry, "Segi-segi yang Mcnarik" 29.

44 Bday, "Se@-se@ yang Mcnarik," 29.

Hazaitin, NufdakKama Huhm, W' (Jakarîa: Tint amas, 1W6), 3. was far different fiom any institutional treatment of this topic.'" In teaching '~Hukum

Islam Khusus" (special IsIamic law), which he mapped out on his own, he embarked on a

reconstruction of the edifice of the indonesian legal system nom its base upwards. His

discussion of Islamic law was chmtcterized by a modern approach to recent social

problems . Since he believed that educational Institutions maint aineci the moral ident ity

of a nation and could help develop Islam in accordance with social needs and modernity,

he believed that this course would be significant.

Hazairin was a prolific writer. His works may be âivided into two categories: legal

and non-legal. His legal worlcs are specific to family law, whether Islamic or adst in

nature. He paid close attention to legal refom in this field. His non-legai works were

mitt en for special events, mostly national and religious occasions.

His dissertation, BRedjaog represents his first Ml-length study of any legal topic.

The work examines da? family law in the Rejang region of Sumatra Selatan. His

elucidation on adal and customary law may be considercd ~orn~lernentary~~to Snouck

Hurgronje's work, De Atfbers (The Acehnese, which contains Snouck analysis of Aceh

and its customary and political conditions) and M. Joustra's BatakspiegeI (the Batak, which explains the life and customs of Batak society).

47 Btfort 1969, for example, the IAIN was orientcd towards ai-Azhar's curriculum and accepted the prcdominanct of the Shafi"ichoo1 in its teaching. The Wscvm coopcrated with al- Azhar by inviting its professors and sending studcnts to study tha. Sce the tlaboration of this point by Boland, Tbc S&qggIe ofi3fm in Modem hdmsia, 120- 122.

Potan kif Harahap, "Prof. Hazairin Dalam Kenmgan," in Sajuti Thalib. cd., Peimbaûanrm Hukrnn Hm, 55. Other writings on adet law that followed ~ere~~"De Gevolgen Vm De

Himehfjksoatbindrag in Zuid Tapazuu" (The Consequences of Divorce in Tapanuli

Selatan) and Reorgamsatie Vàn Het Rechswezen ia Zmi? TapanuU (Reorganization of

Law in Tapandi Selatan) both of which deal with the adaf and customary law among

the Batak people of Tapanuli Selatan in North Sumatra. He also wrote a book in French,

entitled Le droit sur le soi en hdonesie (Agrïcultural Law in indonesia), where he explains the land problem in his nation.

In regard to fdylaw reform, Hazairin offered an alternative system of family law as a solution to the diversity of social and family stems'^ in Indonesia. His book, Hvkum KekeIutngaaa N13sionaf (National Family ~aw),"for example, makes the case for a national maniage law, proposing that a biiateral (parental) marriage system be applied universaliy in Indonesian society. It wes also in this work that he htproposed a new madlibab (school of law) for Indonesians cded a medzbsb nasi~nal,~which he lata changed to madzhab hdonmia, the same term that Hasbi Ash-Shiddiqiey had used, and the form he felt more appropriate for Indonesian society. The reason is that of the

49 Both of the writings were publishcd in Jakarta in 194 1.

An introduction of Indonesian social system has been dclivcred by Ta Haar. Ter Ham, Adat Law in hdonesia, tram. E. Adamson Hoebcl and A. Arthur Schiller (New York: Inst itute of Pacific Relations, 1948), 51. For purpose of this study, howevcr, thrce major social systems will bc mcntioned: the Javariese, which has a bilateral system; the Batak, which has a patrilheal systein; and the Minangkabau, which bas a matrilincal system. For detailcd explaination sec chapttr II of this thesis. s1 Hazairin, Hukrna Kekciusrgaan Nmional (Jakarta: Tint amas, 1982). This book is appended by the Bill of the Nat ional Canstit ut ion of Matriage and Inhcrit ance law. two words." Haairia argued that the word "nasional" implied that it wodd apply to all the

citizeas of hdonesia, whereas the name that he proposed could be thought of as applying only

to those who were Musiims. Hcnce the word "ma&ab indonesia" is, according to hh, more appropriate."

The idea of establishing an Indonesian ma&ab is aiso expressed in a work of his

book entitled HeIslam dao Mqmdfakclt(Islamic Law and ~ociet~)."This book

bears two subt itles: Qur'iih Bahan Bagi Iliau Peqget&uao (the Qur'àn as a Source of

Science) and Muhammad dm Huhrm (Muhammad and Law). In the tint part, he propounds the importance of Islarnic higher education, offering a common understanding of Islam to ali Indonesian Muslims, thereby featining various units of the community. He also saw this education imparting knowledge based on the QurSn'an, rather than other writings of Islamic theology and jurisprudence. In foilowing this path, he hoped that educational institut ions would produce new thinkers (muj&&) who could serve indonesian society by providing an appropnate response to modem conditions. in the second part, he explicates the authority of law, ethics and sources of law, as weli as relationships between human beings and betwcen man and God.

His idea of a ma&& nasional is elaborated most Myin his Huhm, Kewmsaa

Bilaferal Mearÿur al-Qur 'm dao Hadtb (Bilateral Inhezit ance Syst ern according to the

s3 The word ma&& (Arabic) and madzrbab (Indonesia translitcration fiom thc Arabic) both convey the same meaning, which is that of a school of law.

Y Haz- Hihm Kekeiuargam NaPoni.1,6. Fadhil Lubis, ''IsIslamic Lcgal litcratlltt." 55. T. M. Hasby ssh-Shiddieqy, S/an'crt lsfam Mm@awab T'trmg1~ Djsman (Jakarta: Bulm Bint mg, 1966).

55 Hazairin, Hukran Islam dan M~csjarakat(Djakarta: Bulan Bintang, 1960). Qur'Gn and ~adith)? This work tmdertakes a radical reconstruction of the edifice of

famiiy legal reform in Indonesia, especiaiiy inheritance law. He argues that the Qur'k

actuaiiy advocates a bilateral fdysystem, on which Qur'Znic inheritance law is based,

and expresses his wiIiingness to undertake debate with Muslim refonnist on the issue."

In general his intention was to uni@ the practice of Islamic Iaw in Indonesia. His

hdoaesia Satu Mks@id (Indonesia in One Mosque) depicts his ideas on this issue,

especidy regarding the areas of property and economics as they are dealt with by

Muslim jurists.

His ideas on Islamic criminaï law are elaborated in his work HuhPidma Id'

Ditinjau d& Segi-se@; Dasar-d'ar dm Asas-sas Tata HhN&iaal (Islamic

Criminal Law fiom the Aspects, Bases and Principles of a National Legal System),

where he suppoas institutionalizing Islamic criminal law in ~ndonesia? In Negara

Tmpa Penjara (State Without Prisons), he argues that a state would need no jaiis for

crimin& if people followed the criminal law outiined in the Qur'àn. mer ail, the

- - - " Hazaùin, Hihm Kcwansan Bi'atd men

SI Some spccific issues on bilateral system of inheritance wiil be discussed in Chapter III of this thesis. " Hazairin, bdomsia Satu M~~d/'id(Djdcarta:Bulm Bint an& ad).

s9 Haaith, nrrkrna Pid'a &w Difhjau daR Segrbe~~;Dasad&rar dao Asas-~smTafa Huktna Nasional (DJakart a: Tintamas, 1968). Qur'k does not cd for confinement, but provides instead for capital pmishment,

whipping, fines and qisq (compensatory pimishment).60

He also wmte a book on the relationship beîween adat and Islamic law, entitled

Pqofakm Penyeum'aa Adal Kepsda H&m Ham (Confusion of Adaptabüity Adat

towlnds Islamic ~aw).~'Talcing the Minangkebau as an example, he asks whether adet

law is superior ta Islamic law, whether Islamic law is superior to ad'law, or whether both are of equai value. He came to the conclusion that Lslamic law and adat laws are of equai value and can exit side by side. He then elaborated this with respect to social conditions in Indonesia in his SekeZznztir Pemmgkut-pautm Hukrna A& (A Few

His TqM Semgkai Teatang Huhm> (Seven Sequences on I,awlb3 consists of seven speeches and articles - Negara T'pa ~mjm~~SekeImY Persangkut-pauîan

yang Demohfis dao Berdamkm Hukum (The Function and Goal of Developing Law in the Indonesian Republic which is based on Democracy and ~aw),~Mu2l,smmad dao

" Set Hszairin? '%Jegara Tanpa Pcnjara," in Hazairin, T.& Swmgkai Tenflaqg Nb,1-26. 61 Hazairin, Pergolakm Pènjesuaian Adat Kepada Hukum Islam (Djakarta: Butan Bintang, 1952).

" Hazairin, Tub Swaqgkai T'tmg Xukum (Jakarta: Tintamas, 1974). " Hazairin, Tt$& Swaqgkar' Tm- Hukrmt, 1-26.

" HmHazairin conccdcs that the function and the goal of thc lcgal systcm lies in cstablishing a st ate bascd on lcgal provisions. Hazairin, Tu& Swaqgki Tçotarlg H- 5 1-66. ~ukrna;' KmttsiIaau dan Uuhrm (Ethics and LW):' HaBam dl hdonesia (New

Law in ~ndonesia):~and IlmuPeagetlaouaa Islam dm arakat kat.'^

When the Indonesian Marriage Law was promulgated he wrote Tijau.Miengenai

Undmg-wdmg Perkaw'aau Nomor 1 Tahun 1974 (Review on the Martiage Law No.

1/1974), the last book he wrote prior to his death in 1975. In it he explains, article by

article, the Indonesian Marriage stat ute, followed by his comment s and criticisms.

Besides law he wrote on several other matters; astronomy, poiitics and

Christianity, among others. In connection with astronomy he wrote a book entitled

@aga? RBja Mamt rel-Qw'm (Universe According to the ~ur'ân)." Here Hazairin

draws on the Qur'in to explain the human relationship with the universe, the creation of

fire, light and the first human. He maintained that the Qur'in contains modem scientific concepts, stating "The Qur'h is the word of God alone and so his verses can never

67 Hm bc clucidates his two opinions on the law. Firstly, law is only the nsult of social relations in a society, wbich nccd rulcs. Stcondly, law impacts not only on human relations but also on the relationship bttween man and God. Hazairin, TM& Se&kar' TeiataagHukum, 67- 73.

" He declares that the nlationship betwan society and law is one of ethics, which society achowledges. Hazairin, Tu/'& Scnzqglhni Tkntsag HMuq 74-92.

He iilustratcs his points on the possibility of fomulating ncw Iaws suitcd to Indonesia's pluralistic sockty. This constitutes the text of a speech made bcforc delegates to a conference on law on Dccember 16,1950. Hazairin. T.MSerimgkadl Tcntaag H'93- 108.

'O The importance of Islamic lmowledge is briefly descrkd hm. Hazairin, Tujub Scrangkkai Teorabg Hukum,109- 120.

" Hazairin, Djagat Rua Mcaiinb al-Qur '. (Djakarta: Tint amas, 1966). contradict the scientific view, which is established because God has granted science

itself to huminikind.""

His political ideas are expressed in Dernohi Pmc~siila(Panc asila ~ernocrac~),~~

where he analyses the state based on the principles of the PaacasiI4 and explains the

philosophy of Indonesia as a republic as expressed in the ''" (Piagm

J8hnra). Also. he sometimes wrote in response to cumnt issues. Demokrasi Pancasif8

was inspireci by a seminar that he attended in December 1968.'~

Another example of this type of writing is his ha d-M&si&dm Ru& (The Prophet

Jesus and the Soul). "~hisbook commented on the failure of inter-reiigious consultation

betwecn Christianity and Islam in the inter communal shrift in November 1967. This

shrift sparked the publication of a number of works besides that of ~azairin.'~

Amin, "Mengenang Almarhum Prof. Dr. Mr. Hazairin," in Sajuti Thalib, ed., Pembabmm ffuktna hhn,96.

73 Hazairin, Dernohi Panciwiils (Jakarta: Bina Abara, 1983). This book discusses what bearing ''Republik Indoncsia" (Indonesian Republic) had on 'Tiagam Jakarta" (Jakarta Charter). This led to the philosophicai 'Taacasiia vs. Islamic state" debate. Endang Saifuddin Anshari, Piagam Jakmte= 22 Id 1945(Bandung: Perpust akaan Salman Bandung, 198 l), 116. This book is helpfd in that it clarifies Hazairin's opinion towasds the historicai devdopment of Islarnic law in Lidoncsia, cspecially as the author writcs nom a secuiar standpoint.

74 Hazairin, DernoArmi PmcmiI4 9-1 1. The seminar was caîied Hukum Nasional II (National Law XI) and was held 27-30 Decembcr 1968.

7s Hazairin, Isa Ai-Mdsiib dm Ru& (Djakarta: Tint amas, 1969).

" Boland notes that the polemic involvecl, among others, Arsjad Thaiib Lubis, who wrott Keerraan T&da Menurut A#man Knsta daa filam (Djakarta: n. p., 1968); Abujamin Roham, with his &ma Ustadan M'am smta Perbaa&annja (Djakarta: n. p., 1968); Hazairin, wit h bis Irs Al m& dm Rd (Djakarta: n. p., 1969); and H.M.Rasyidi, wit h hisi Wcm df hdonesia dZ' Zamm Modm (Djakarta: n.p., 1968). See B. J. Boland, The StnrggIe of filam ia Modm 1adonesi4 240. D. His Concerns about Islam

noted above Hazairin did not receive a formai Islamic education, but was

interested in Islam as a Muslim and as a legaüst. This section will try to show the deep

interest he had in Islam - one that prornpted him to develop considerable competency in

the field of Islarnic legal thought. Because he was self-taught. though, we have no clear

information on exactly what Islamic books Hazairin actuaily read, but it can be

speculated that he would have studied the more well-hown books on the Qin'& and

&mEt.. tafsu; fiqh and euf al-64a.77

Apparently he was personaliy devout and he observed Islamic teachings in his daily

life. 78 However, Lev obsenes that as a scholar Hazauin separated his analysis nom his

faith, while ret aining some degree of Islamic perspective.

His training in Sumatra had led him to believe that ad' was deeply rooted in the

society, but he also recognized that it was challenged on the one hand by Islam and on

the other by change within indonesian society. As an illustration, he cited the case of circular migration where men lefi their native regions to work in cities and then returned for retirement. They came back to find an ideritance system that differed fiom what they had become used to elsewhere. Another phenornenon was the gradua1 move fiom

He might have read some of following books; Bughyit ai-Mmtarstu'dul by Husayn al-Ba'lawi, al-Fcva'iQ by ShamsS; Fa@ &Mu551 by al-Malibaii, Fa@ al- WabbBb by al-Aqaii; U&y& RiYFyab al-Akbyai by al-Bajiüi; MugM al-Mi&&'' by al-Sharbqd; Qsw&& al-Shar'iwa by Sayyid 'Abdu Allah ibn Sadàqah San'h. For radical Islamic thought Hazairin might also have rcad The Spfit of Ham by Amca Ali. This book was welbknown and attracted many Indonesian scholar for its radical thought of Islam at tht time. Sec Sukarno, "Surat-surat Islam dari Endeh," in Panitya Di bawah Bcndera Revolusi, Di bewab Bendira Revoltrsi (Djakarta: Panitya Dibawah Bendera Revolusi, 1964), 332 and 337.

78Amin, "Mengenang Almathum Prof. Mx. Dr. Hazairin," in Sajuti Thalib, cd., Pernbdanriiu Hukrna &Im, 95. the extended to the nuclear family caused by growing urbanization and other factors.

Both developments led to increased "indi~idualization."'~Mer independence, Hazairin

drew the conclusion that adet would change under the pressure of so many influences.

When he observed the confiicts between kaum tua (traditionalist) and kam muda

(modernist or reformist) occ~gin Sumatra and Java, he was led to relate reiigious

change to the fundamental role of change in society itself.

Hazairin's was primarily intmsted in establishing Islamic law at the institutional

le~el.'~Indeed, he was quite insistent in arguing that Indonesia ought to be based on

Islamic law, though not to the extent that it should become an Islamic state?'

Nevertheless, incorporat ing certain elements of Islamic law int O the Indonesian legal

A fdysystem, which is not, bound by the clan or tnbc but rather dcpends on the famüy itseif. kv, interview by author.

'O Bismar Siregar, "Prof. Hazairin: Seorang Mwaliid Peaegak Wi&m Beird'arkm Ketuhmm Yang Mi& &a," in Sajuti Thalib, cd., Pembabmao Hukrnn hlm, 1.

8 1 The problem of whether or not the &&'a should serve as the constitution of an Islamic state, and whether or not an Islamic state can have sbG% rulcs has never ccased bcing dcbatcd. Bassam Tibi, The C#allcnge of F~mdamentdYszn:Poiiticaî I&m and t&e New Woriîi Disotdm (Berkeley: University of California Press, 1W8), 158- 177 and 187. In Indoncsia's polit ical setting, the discourse on the Islamic state produced conflict and rebellion against the state. There have bccn some attempts to make Indonesia an Islamic statt. Natsir, for example, debatcd Sockamo ovcr IsIam's suitability as the basis of statehood, and whether Indonesia needed Islam or Set his book, Islam Se&* ldeolg~é(Jakarta: Pustaka Aida, 195 1). Sce also Ma'mur Ilzamuddiu, "Abu al-A'la Mawdudi's and Mohammad Natsir Views on St atehood: A Comparative St udy" (M.A.thesis, Instit ute of Islamic Studies, McGiiI University, Montreal, 1995). At its peak, in 1949, the idea of an Islamic state for Indonesia was expressed as Islarnic legal rcform. This idea gave way to rtbcllion agbt the govemmcnt. In South Suiawesi, a revolt in favour of an Islamic State was led by Kahar Muzakar in 1953. In Acch the attempt in 1953 to buiid an Islamic state was lcd by Daud Beurcuh. By contrast, Hazairin hopcd only to appIy some tIements of Islamic Law in Indonesia. Hazairin, hdonesia Satu M&rd/lid:5-6. Hazairin, Huktna Kckeiuargaan Nàsimd, 1 and 6. Boland, The SînggIe of ljrim & Modem hdoncs~'a,169. system was certainîy a goal." Boland obsenres that Hazairin's aim was to see "a partial

reaüzation of Islamic law for Muslim citians." "

Although Hazairin asserted that Islamic law should be integrated into Indonesia's legal system, he also held that tolerance was essentiai to its success. He hoped that

Islamic legal refomis would be applied to Muslim society, without Indonesia being transformed into an Islamic state. He maintained that this was a prerogative of other groups as well and if Christians wanted their biblical provisions ta be enshrined in law, they could aiso propose this to the state."

This fit in with his view of the Indonesian nation. Hazairin insisted that Indonesia is not a homogenous society. Since its establishment as an independent state, Indonesia had venerated its various founders and heroes, whatever their religion. AU worked together to realize the dream of a Republic of Indonesia. According to Hazairîn, thmfore, Indonesia belonged to all of its people whatever religion. Hamirin even considered its heterogeneous character a viitue willed by ~od."

The above gives an indication of Hazairin's view of the importance of Islam to

Indonesia We may conclude that Hazairin dedicated himself t O educat ion, social needs, public interest and religion. Later, he assumed an important role in achieving the independence of Indonesia, and accepted positions in the govenunent and the civil a His attcmpt to htroduce Islamic law into Indonesian statutory law was clearly aimed at ensuring that the lcgal system be equipped to handle cases of this nature. Sec his Huktna IsIm dm Màsyarakat. Sec also Hazairin, Tb/'sumMerlgeaai Undmg-zmdaqg Pwksw;oan, 3-5. service. He ais0 worked tirelessly in pursuit of howledge and contnbuted to scholarship

until his death.

Hazaitin's social and academic relationships, his writings and career, and his great

interest in Islam, are ali evidence of his qualifications as an Islamic legal scholar. He was

a man of intelligence and discemment with respect to the religious disciplines of Islam.

An histoncd and content analysis of Hazairin's thought should help us to identifi his ideas on Islamic legal reform in Indonesia. In the next chapter, we will deal with this aspect of his thought . CHAPTER TWO

HAZADUN'S LEGAL THOUGHT

Thae were the major aspects to Hazairin's legal thought. First, there was his

refbtation of the legal heritage of Dutch colonial policy, hown as his nceptie em.

theory. His proposa1 here was to put an end to the authonty of a& law over Islamic

law. Second, effectively a continuation of the fht, was his concept of a '%bilaterai

system." This was a syst em of Islamic family law interpreted on the basis of the Qur' Sn

and adapted to Indonesian conditions, especidy in the spheres of mairiage and

inheritance law. Last, there was his proposal to institutionalize Islamic Iaw at the state

Ievel. The present chapter elucidates Hazairin's Islamic legal thought and the circumsfauces that shaped it. Our objective is to show how, in spite of king a product of the Dutch educational system, Hazsirin recognized the value of Islamic law and the need to conelate it with adat law. As a background to Hazsirin's theory of receptie exil, we begin this chapter with a smey of Dutch legal policy in the East indies prior to

Indonesian independence.

A. On the Receptie E& Theory

Despite the wide variety of customary laws in the colony, the Dutch govemment recognized the pervasive Muence of Islamic law within Indonesian society. This is stated in the legislation kiown as the Regrolrment op &et belcd du Regee~gvan hriIm&& hdie (RR or Rule of the Management of India Netheriands), StM No. 129 of 1854 and No.2 of 1855, and is explained more fWy in Articles 75, 78 and 109.' Under

the Daendels (1 807-181 1) and Ranles administrations (18 1l-1816)', Islamic law was

officially recognized in mattexs of personal iaw, a recognition of its status in the hearts

of the Indonesian people.3 One of the nrJt to realize Islam's influence on Indonesian

society was Carel Frederik Winter (1199-1859). a Dutch expert on Javanese culture and

author of several studies on . His research was foliowed up by

Solomon Keyzer (1823-1868), a scholar of îirtguistics and culture in the Netherlands

Indies, who translated the Qufk into Dutch and summrirized Winter's conclusion^.^

Men it was realized how important Islamic law was to Indonesian society the

Dutch govenunent began to pay particular attention to the Islamic legal system. This

led to two, essentially contradictory, developments. Initially, Islarnic law came t O

occupy a mon priviieged position than adat law. This approach was supported by L. W.

C. van den Berg (1 845-1927).' who had developed an interpretation of Islamic law based

on his theory of mcepttio h comopluu. Later, however, the view emerged that Islamic

-- -- Sajuti 'fhaüb, Requtio A Cmtnmb: Hubung. Hirhmi Adrt dm Huhm> lJPm (Jakarta: Acadcmica, 1980), 7. Sajuti Thalib, ''Rceptio in Coqlexu, Theoric Reccptie dan Reccptio a Contrario," in Pwbabanrm Uukum Islam di ~?j?doncsz8(Jakarta: Universitas Indonesia Press, 1982), 44.

The Latter was a British interregnum. ' Arso Sostroatmodjo and Wasit Aulawi, Hiïhm Perkaw&an di Ludoais (Jakarta: Bulan Bintang, 1981), 11-2.

4 Wintcr concluded that the living law within the indigcnous socicty was Islsmic. ThaIib, Rcceptio A Caatran'o, S. van den Berg was the first Dutch scholar to bc appointed as an advisor to the Dutch govern~~~~~trcgarding issues affcîting Indonesian Muslims. He was ais0 responsible for advising on the subject of casterxi languages and Islamic law. Karcl A. Stcmbrink, "Forcword," in Wddamdut dan KaIoni Areb dl Nimu~tara,by L. W. C. van den Berg, tram. Rahayu Hidayat (Jakarta: INiS, 1gag), xi-xxv. Iaw should corne under the authority of Bdat law. This inttrpretation was advanced by

Christian Snouck Hurgronje (1 857-1 93616 and was based on what he cded the nceplie

theory.

The receptio hz co@'u theory acknowledged Islamic Law as a positive law, My

implemented among the indigenous people? Van den Berg maintained that Islam had

been Mly accepted as the living law of the inhabitants of the Netherlands 1ndies.* He

came to this conclusion whiie working at the National Court of Semarang (Central Java)

where he discovered the extent to which Islamic law was observed among the people,

and as such believed that there was a need for it to be ~odifîed.~His theory of ncepttio h

cornplau was officiaily recgnized in Law No. 152 of 1882.1° Accorduig to this

legislation, the positive law for the indigenous people was to be their own religious law

6 Hurgronjc was a Dutch scholar assigned as an advisor on Dutch policies towards Indonesian Muslims. He was born in Tholen City, Nctherlands and studicd thcology and Arabic Utrature whcn he was young. His ambition to Icam Arabic and study Islam Ied him to convert to islam and perform ritual practiccs of Islam, but hc is belicved to have only pretcnded to be Muslim. For more information scc for example, Danan Priyatmoko, "Christian Snouck hurgronje," in Nugroho ct .ai., cd., EnsiHo@ Nàsionai hdooesia (Jakarta: Cipt a Adi Pust aka, 1989), 505-6.

7 Thalib, 'Receptio in Complcxu," 45.

* C. Van Voilcnhoven, Vm VoIIdomL hdondan AdrPt Law. tram. J. F. Hoileman, Rachael Kalis, and Kenneth Maddock (The Hague: Martinus Nioff, 198 l), 20.

9 To this end bc wrotc "Mohammadexuecht" according to the Shafîitc and Hanafite traditions, atid a book on family law and inhcritaricc law in which he studicd its divergent trends in Javanese society. He then translateci the book AdWba). al- Ta&by Nawawi into French, to use as a legai rcfercnce tool in the rcligious couxt. Thalib, Rccepfio A Conf~o,5-6. Steenbrinfr, c6Forcword,"xiv-xv.

10 Asro Sosroatmodjo and A. Wasit Aulawi, Hukrrm prkawin~~,1 3; Icht ijanto, "Ptngcmbangan Teon Balahmya Hukum Islam di Indonesia," in Tjun Surjaman, cd,Hukum hi' dihtdomsia: PclÏk~mbangandm P~m&nt&m (Bandung: PY Remaja Rosdakarya, 1991), 120. - in this case Islam - and accepted in full." Van den Berg is considered to have recognized Islam's exi~tence.'~In accordance with Van den Berg's policy, the Islamic courts continued their activities as religious institutions. ' The initiative was then undertaken to implement officidy the provisions of Islemic law in colonial statutes

such as the desconcerning inherit ance (fdiQ),mmarriage ('idka)and divorce (@aq).'* However, the nceptie theory of Snouck Hurgronje soon came to replace the

receptio h complexu theory of Van den Berg. By contrast, Hurgronje's theory did not

admit the close ties to Islamic law felt by the Indonesian people. He maintained on the

contrary that it was customary law that was still pndorninantly observed by society.

Hmgronje thezefore maintained that Islamic law ought not to be implemented imless it

accorded with customary law. The positive law of Indonesian Muslims, hence, was seen

as rooted in the customary law of the people, not in the reiigious law.'"

IIVan Voiltnhoven, Vao Volhen Itloven in hdonesia Adat Law, 20. Hooker considercd Islam to be an essential elcmcnt of Indoncsian socicty, a&cti.ng its politicai, social and cultural We. M. B. Hooker, Isliplluc Law in Sou~~tRcia (Singaporc: Oxfard University Press, 1984), 248.

12 B. J. Boland, Stnrggle of Idam in Modem hdonesia (The Hague Martinus NijhoS, 1962), 2 16. Tauf!ik Abduilah, Mm and Masydl;Bkat: Pmtuiatr Sqe/arabhduncsth (Jakarta: LP3ES, 1987), 108.

"~heIslamic courts wcrr foimded by the early Mush kings in àiffemt parts of Indonesia, which contributcd to the sprcad Islam at the th.Under Dutch rule the Islamic courts survived expandcd and won favor fiom Van Den Berg's policy. Daniel S. Lcv, Id'C Cornis irr ~~oPcI£I's:A Study b the Polrticd Bases of kgal licstltuîiom (Bak~l~y~Los Angeles and London: University of California Press, 1W2), 8-1 01; HookerpIsle Law io Soutbcast Asia, 249-55; Steenbrink, &bwrPpa Aspek Tmtaag Islam di hdonsia abad kc -29 (Jakarta: Bulan Bintang, 1984). 213-33.

14 Ichtijanto, cWukumIslam di Indonesia," 121. fS Hooh, Jsl~~~llclaw io South-Emt A&I, 269. Daniel S. Lcv, "Judicid Institutions and Legai Culture in ladonesia," in Claire Holt, cd., Cirlturc and PoUtics irP hdmma (Ithaca: Comeii University Press, a. d.), 254. Begirining with its officiai enactment in Stbl. No. 221 of 1929, Article 134 (2) of

the Wer op de staats Ifrn'chhg van NedwIm& h&e (IS or the Law of the State

Management of India ~etherlands),l6 the meptie theory replaced Van den Berg's

nceplo theory, and was to remain in effect for the next seventeen years.'7 According to

Thalib (b.1929), this regdation clearly detemllned that Islamic Law could not be

recognized as the positive law of Indonesian Muslims as long as local customary laws

did not recognize it. In implementing bis nceptje theory, Hurgronje tumed Van den

Berg's theory upside down."

Hurgronje nevertheless reaiized that Indonesian customary law was actualiy far

fkom uniform. In some areas of Indonesia, for example, Islamic law was deeply rooted in the society, such as in Minangkabau. Hurgronje agreed that in these areas Islam had already existed for a very long time. But the fact that Islamic law was in conflict with customary law, especially in such areas as marriage and inheritence, showed that in fact customary law still made up the pater part of their living law. l9 He insisted that this was also the case in other parts of Indonesia, such as ~ceh.~'

Van Vollenhoven (1874-1933), who elaborated further on the recegtic theory and crit icized Van den Berg, support ed Burgronje's concIusion. "It would be incorrect to

1Vhdib, Rcccptio A Contrario, 27-9. Thalib, "Receptio in Complexu," 50-1. Abdul Mutholib, Kcduduk;ao Hukrna islam Dewssa hi dihdontsid (Surabaya: P.T. Bina Ilmu, 1984)' 29.

"~arryJ. Benda, The C)xiccetl?and th lPISag Sm (New York: Institute of Pacitic Relations, n. d.), 20.

19 Snouck C. Hurgronje, me Acb&ese, trans. A.W.S. O'Sullivau (Lciden: E. J. Briii,1906), 3 16.

'O H. Westra, "Custom and Muslim Law in the Nethcrlands East Indics," Thmactlicns of the GivtÏus Society25 (1 93 9), 166. assume that the prionty given to reügious law, and the identification of it with adat law,

has always resulted from an inadvertent mistake, misconception and exror."2'

Lih Van VoUenhoven, Vandenbosch maintained that religious law actually had

little influence on other spheres of life. He beiieved that it was wrong to suppose that

the infiuence of religious law on a& law was significant, just as it was a mistake to overstress the religious element in customary law." Rather, as he put it, 'Tagans have pagan law, Hindus have Hindu law, Mohammedans Moslem law ...," which point he qualified, saying, The infiuence of religious law is limited."" Westra voiced a simüar opinion in support of Hurgronje's theory: "for a long time the importance of reügious law in general and Muslim law in particular as compared with native customary law has been overesti~nated."~~

However, modem Indonesian scholars are highly critical of Hwgmnje's theory. For example, has lauded Van den Berg for his perspicacity and accused

Hurgronje of attempting to limit the development of Islam in Indonesia. The Islamic policy that he designed had an even wider thnist, as is evidenced by the stress he placed on western education as a means of combathg the influence of Islam in ~ndonesia.~'

2 1 Van VoUcnhoven, hdonmidtl Adat Law, 20.

Amry Vandenbosch, the Dutcb Ekt h&s: Ils Govwtzment, Robièms, md Polcia (Berkeley: University of California Press, 1944), 178.

Y Hany J. Benda, "Christian Snouck Hurgconje and the Founâations of Dutch Islamic Policy in Indonesia," A. Ibrahim et ai. (eds), Readiujp ao Wsm b Sout&e&rf Asia (Singaporc: Institute of Southcast Asian Studits (ISEAS). 1985), 64-5. According to &Ga&, Hurgronje advised the govemrnent to send Indonesian students

to study in Leiden in order to prevent them fiom becoming religious fana tic^.*^

Benda maintains that Hurgronje saw Islam as potentidy a pow& religious or

political force in Indonesia. His nceptie theory therefore was a preventative measure.

Umeothers, therefore, who have accused Hungronje of opposing Islam as a religion,

Benda argues that the enemy perceived by Hungronje was not Islam the faith but Islam the political doctrine - one which could stir up local passions and lead to Pan- ~slamism?

Hazairin, for his part, was strongly opposed to Hurgronje's mceptie theory, which he believed had been assimilated into the Indonesian legd system of the post- independence period. He saw the Dutch intention as an attempt to minimb the role of

Islam at every level of society and administration, if not eliminate it c~rn~letel~?~This intention took the form of deslimiting the function of the Islamic courts, especialiy in cases of inherit an~e.~'

ai Hamid al-Gadn, Dutc. Poky Ag-t Islm d hdonesiam of Arab Descmt h hdonesia (Jakarta: LP3ES, 1994), 102-1 0.

27 Hany J. Benda, "Christian Snouck Hurgronje," 63-4. On Hurgronjt's refbtation of Pan- Islamism, see Hamid al-Ga&, Dut& Polr'cy Against Islam, 82-1 10.

28 Hazainn, Hrckrmr Kekdusrrgaan Nasional (Jakarta: Tintamas, 1982), 7. HazaVin, "Negara Tanpa Pwjara," in Hazairin, Tujub S~~aqgkar*Tcataug Hukrrm (Jakarta: Tintamas, 1974), 25-6. Yahya Harahap, "Praktek Hukum waris Tidak Pantas Membuat Gencralisasi," in Iqbal Abdurrauf Saimima, cd., Pol- R~ualisadAjm Idam (Jakarta: Pust aka Panjimas, l988), 126.

'9 The Islamic courts, according to Arifh, arc bascd on the de& et impwa (a slogan that is belicved to prevent the mity of Inâoncsian society) of the Dutch govccnmtnt. Bustanul Arifia, Perk~mbangmWukraa Islam dr'hdonema (Jakarta: Gtma Insani Press, 1 996), 48. Hazairin rem& in one of his works that, especialiy in cases of inhentance, the

influence of the nceptie theory in Indonesian legai institutions is obvio~s?~

Supporters of the reception theory pointed to the situation of the adat among Muslims, for example Muslims in Java, to whom Islamic inheritance des were applîed only if they went to an Islamic court, but who, if they divided an iahmtance in the village, followed adat Law. Look (said advocates of the reception theory): the fara 7'law is not yet received by adal law and is therefore not the law that applies; therefore, Islamic courts must be separated fiom their jirrisdiction over inheritance. And so there arose Islamic courts with competence only over &ab, tdak; me& mahirand wakalr3' According to Hazairin, Dutch policy aimed to amst the development of Islamic law, by interferhg with its application in such areas as inberitance. Recepticpolicy had declared Islamic inheritance law to be incompatible with adet law. Nor was it considered the positive law of Muslims themselves, so that the authority of the Islamic courts was accordingly îimited The authorities therefore considered themselves justified in removing inheritance from the competence of the Islamic coud2Refmlng to SM 1937: 116, Hazaixin explains that the limitations placed on the Islamic courts in

Indonesia in cases concerning nikb, ltalàq and ru,@' increased the difficulty of giving judgements in the area of Islamic inheritance.')

" Citcd in Lw,lsiamr'c Courts h hdatresi'a, 197.

'' The regdation of the Dutoh govcrnmcnt which rcmovcd jurisdiction over inheritanco fiom the Islamic courts was sccn as politicaiiy motivated, and causcd great distress among MusW. Thus, the competence of Islamic comts in idmitance was regardcd as a victory for Islarn, in largcr historicd, social and political sense rathcr than mcre1y a narrowly lcgal one. Lw,Id'k Corrrts ia 1Pdoncs12, 198. See also the fîrst chapter of this thesis. Hazairin tried to replace Hurgronje's idea by advancing bis own zceptie exil

theord4 referring to nceptie itself as "teo~iblis" (the devil's theory)?' He invited

Indonesians thus to "exit" Hurgronje's theory, on the grounds that it was contrasr to the

Constitution of 1945 (Undang-undang Dasar 1945) and the five principles which sewed

as the basis of the Indonesian state (Pancasfia), which cleacly stated that Indonesian law should be based on religious beli~f.~~Moreover, Hurgronje's theory. accoiding to

Hazairin, confiïcted with the principles laid down in the Qur'En and unn na.'^

Undoubtedly, Hazairin was against Hurgronje's theories as represent at ive of a colonist mentaiity and as part of legacy that should be jettisoned by an independent Indonesia; significantly he found an Islamic justification for doing it.

Furthermore, for Hazairin, the -rie theory only mcouraged people to set thenise1ves against the will of s~ciet~.)~He reasoned that ncepie theory gave an opportunity to people to adopt ada? practices that might be forbidden by religion?9 If meptie theory was stU a feature of the Indonesilm legal system, Hazairin declared, this

-- - " Hazairin, Tzyüb Swdl7#kai Tentpqgiïikm, 95. Ichtijato, "Huhim Islam di Indoacsia," 101. 3s Hazairin, TLju6 Smgicra.i Tmtaog Hm.95. Sajuti Thalib. "Reccptic in Complexu," 52; Dcliar Noer, Admiastmtion of Id& h> bdoncisllit (Ithaca: Comcii University Ress, 1WS), 47; Daniel S. Ltv, Iddrmc Courts ia lirdoncsia, 197. Hazairin tried to explain why hc namcd it teonn ib&s or Satan thcory by speaking itonically on behalf of 8dBf as follows: "O Muslh, evcn though the Qur'k prohibits the adultery on pain of criminal sanction, don't worry about committing adultery as long as by the adei of your socicty adultcry is still a matter of choice.. ." H azairin, Uukrna KekcZu~~gamNaional, 6-9.

36 Ictijanto, "Huhmi Islam di Indoncsia," 100, 128-3 1.

38 sajuti Thalib, ''Reccptie in Complcxu," 52. Hazairin, Huhm, Kekcuagaau Nm'o~al,8; Hazairin, Tujuh SmzuBifcai TclnldqgW', 95. meant Indonesian Muslims were not comprehensively applying Islamic tea~hin~s.~

Hazauin was then one of the htscholar to demonstrate systematically how

Indonesia's legal structure was in large part, if not entireiy, a legacy of the Dutch period.

Among the documents that Hazairin considered to be a rejection of rccepric theory

was the 'Tiagam Jakarta" (Jakarta Charter) of 22 June 1945.~'Seven words in the

Charter, for him, invaiidated the effects of receptie: "dengm kewqYbm menjddm

syh6at Isi' bagi pemeIukaya" (with the obligation to carry out sbS6aIslam for its

adherent s)." Moreover, he argued t hat the Constitution of 1945 cont ained Islamic

elemmts which effectively over-rode receptie theory." Indeed, Hazairin states,

obedience to the 1945 Constitution is obedience to Islarnic law? A third document that

Hazairin regarded as an "exit" fiom mceptie theory in the area of inhentance was TAP

MPRS No. W1960,a decree passed by the People's Consultative Assembly as part of its eight- year plan.4s Nevertheless, even with the above documents, a clean break fiom the effects of r~cepttietheory had never actually beem achieved, Hazairin claimed. What was

" The transliteration is takcn fiom Saifuddin Anshari, The Jakarta Charter of June 1945: A History of the Gentlemen's Agreement between the Islamic law and the Secular Nationalist in Modem Indonesia" (MA. thesis, Institut e of Islamic st udies, McGill University, Montreal, 1976), 40.

" Lw,U& Couti, 198. Hm,Huhm XekcIc~(p~gaanNssoa& 10. Hazaùin, Demokwu' Pdpcasd'(Jakarta: Bina Aksara, 1M), 56-9. The elcments of Islamic law that ht is refening to we found in article 29 of the Constitution of 1945.

Hazairin, Tijaum Mèngaai Undmg-undarrg Pakamù~anNo.I/I974 (JaLariz Tintamas, 1986), 6.

4s This plan had admonishcd the government to pay attention to rcligious factors in cstablishing the ncw family law, once the maptie thcory had bten discarded Ltv, Id-c Courts in bdonesrip, 198. needed to exit hmnceplie theory, he added was for Islamic law to be made binding

upon Indonesian Muslims, both legaiiy and institutionaliy, at the state Ievel. Once

Islarnic law served as the positive law of dl Indonesian Muslims, mietheory would

finally have been eliminated.

Hazairin's student, Sajut i Thalib (1 92%) later developed Hazairjn's ideas by

putting forward a theory that he cailed receptie a contrano.." According to him, after

independence, there was no excuse for Dutch laws to continue to encumber the

Indonesian people. In accordance with the Pancasila and the constitution of 1945,

religious Law ought to be the law of the nation's indigenous peoples. According to his

understanding, customary law should be applicable to Muslirns only if it did not

contradict the provisions of Islamic ~aw.'~Thalib's theory was supported by the realities

of the development of Islam in Java, Aceh, and Minangkabau, where Islamic law was

applied by people as the living law, and customary (sdeC) law only insofar as it accorded

with the provisions of Islamic law.'* As the name of the theory itself indicated, Thalib has tmed Hurgronj e 's theory upside down.

The theones of Van den Berg, Hurgronje, Hazairin and Thalib aü had in cornmon perception of Islamic law as in some way playing the role of a positive law for ali

Indonesians. However, whiie Van den Berg was referring to a situation that actudy

" This theory is oftm exroneously attributcd to Hazairia. Thalib macly developed it bascd on Hazaitin's idea. Sajuti Thalib, Reccptio A Çbntran'o: Uubugaa Wuktmi Adat dmgr?n Uukrrm Is/am (Jakarta: Bina Aksara, 1982). 70. " Ichtijanto, 'Wukum Islam di Indonesia," 132. Thaiib, Recept.0 A Con~rarro,47.

Ictijanto, 4Teng~mbmganHukum Islam di hdonesia," 132-5. existed, Hazaiiin and Thalib were making the case for its full implementation for

Indonesian ~uslims?

One significant difference between Hazairin's and Van den Berg's theories lay in

the areas of the law which ought to be applicable to Indonesian Muslims. For Hazeirin,

the answer was that al1 aspects of Islamic Iaw, including inheritance should be included.

Van den Berg seems to have been less dogmatic about this question, even though he was

aware of the divergences in inheritance cases among Javanese Muslims. In view of this

fact, the Islamic judicial authorities had been in the habit of throwing out inheritance

cases, especially in Java, Madura and South Kalimantan, where the Islîmic courts had

been set up by the Dutch government.M

Although HazaPin fundament dysupported Islamic law, at other times he clearly

acknowledged that adkt was still a living force in society. This recognition is clearly

shown in his opinion that adat law had the power to bind people together through the

constitution. The importance of adkt law was proven by the fact that there were

certain provisions of Islamic law which could not be applied because they seemed to nm

contrary to the adat of Indonesian Muslims. Thus it was recognized that it is difficult to

apply Islamic law and to implement a system tmifody in such a way as to conform to

ad.lad2 A striking example was the confiict over des of ix~heritance.'~Ha,

49 M.Minhaji, "Ahmad Hassan and Isiamic Lcgal Rcfonn in Indonesia (1 887-1958)'' (Ph.D diss., Institute of IsIamic Studics, McGill University, Montreal, 1997), 60.

50 Arifin, Pwkxmbangaa Wukum Iddm, 48.

SI R. Soepomo, Pmtaufm Pmdilan t)GSa Kepada Gubap~mm(Djakarta: Bhratara, 1W2), 1 O.

Sec his explmation on this, Hazairin, Hihm Kekeluargam Nitsion& 7-9. Hazairin was actudy in partial agreement with Hugronje's theory that 8dat law played an important role in Indonesian society. " This points up an inconsistency in Hazairin's thinicing, for in advancing his nceptie

exit theory, he was tending to ignore that ad' law in indonesia had (and stiii has) a very

important function. The confiict between adkt law and Islamic law, as in the case of

Minangkabau, cm in fact be seen as a positive dynamic. Bousquet for one was moved to

declare that adat law renders hdonesia one of the most remarkable of aii co~ntries.~~

Hazairin and Thalib were clearly biased in their approach to nceptie theory and

a& law. Neither took the whole picture into account. They were ready to condemn

Dutch attempts at law - seeing them as self-centered and mng. And yet, while there were times that this was the case, it was nevertheless also tnie that it was often done for the purpose of giving Indonesian society a firm set of legal guidelines that reflected their tradition.

Thus, Hazairin and Thalib aimed to position Islamic law somewhere beyond

=cepie theory. Hamirin's goal of ncepie exit theory was, therefore, to place Islamic

Iaw in a position of reconciliation, if not in superiority over &. In other words, while he had no wish to dismiss adat law fiom the Indonesian legai system, his ideas show that in his eyes Islamic law.could be reconciled with adat Iaw. It was therefore merely his intention to end the impact of rmpte theory, which according to him limited the

- 53 In a speech delivcred in Bukit Tinggi in 4 and S May 1952 hc cxplained that his main reason for reconciling Islamic and adat inlzcritancc law in Minangkabau, was thtir apparent its incompatibility. Sec Hazairin, Peirgol"an PWIJGSU~~'~Adat Kepada Hukrnn M' (Djakarta: Bulan Bintang, 1952).

W Akh. Mintiaji, "Abmad Hassan aud Islamic Legai Reform," 60-1.

" G. H. Bousquet, IIrtmduetlin s I'Clude dl'&/" hdormièn (Paris: P. Guthner, 193 8). 241. application of Islam. In this way, Islamic law would have a chance to fimction as a

positive law inasmuch as the majority of Indonesian Muslims would implement it.

It is fair, we tuto say that here that Hazairin benefited âom Hurgronje's ncepte theory in that it gave him a clear target in the form of adet authority. Hurgronje's conclusion, to some extent, must have motivated Hazairin to attempt to reconciie

Islamic law and adat law. However, Hazairin's theories have not been universaiiy accepted by Indonesian jurists, who are divided between those who support Islamic law and those who promote non - Islamic Law or, as they cail it, a national law. It is a debate that continues to this day?

Among those who supported Hazairin's idea were Adnan and Maoeld, both leaders of the peogirulu (judges in Islamic district court) association and prominent religious figures of Hazairin's day." They argwd that applying adat Iaw in inheritance cases was damaging to the holy principle of succession, since according to adet law an illegitimate chiid or even an adopted child could inherit .s8 Worse stiiï, the adat could not give equal legal status to all people, for nearly every district or ethnic group had its own edat laws, few of which were cognizant of contemporary societal conditions or in touch

" Lev, Isiamrc Courts h Indoneski, 199. Again, the confiict represents the old aruggle between Islam and adar, which, transposed to the prcsent dey, becomes strugglc between Islam and 'hat ional" principlcs.

Mohmd Atho Mudzhar, "Fatwa's of the Councii of Lidonesian 'Ulami': a Study of Islamic Lcgal Thought in Indonesia, 1975-1988" (Ph.D: dis., University of California Los Angeles, 1990)' 72.

According to Islamic Law illegitimate and adopted chil- do not inhcrit. Sce for example, Bernand Durand, Bit musuUnan dit successoral= Fara"I'& (Paris: Libraric de la cour de cassation, 1991). Sec aho Reubcn Ltvy, die SoW SLNct11;r~of Islam (Cambridge: Cambridge University press, 1962)' 147-149. with political and economic realitied9 Hence, the inheritance system had to be made

more uniforrn.

Conversely, Ter Haar and his student Supomo, both proponents of a& law,

argued that Islamic laws on inheritance could not even be applied in Indonesian society.

According to the- these laws were originally drawn nom Arab lands and had ken

little if at ail, influenced by the local inheritance practices of Indonesians. Using a

similar illustration as that proposed by Adnan and Mahfoeld, Ter Haar and Soepomo

took the example of adopted children excluded from inheritance in Islamic law, and

contrasted this with the fact that adoption with the right of inheritrmce is widely

practiced in Muslim (Javanese) society.' Furtherrnore, those who favored recepfie

theory pointed out that Javanese Muslims refdto Islamic inheritance only if they

went to the pnkstturaad (ma&ama Sbarf% or Islamic court). However, whenever they

faced issues beyond the court's authority they preferred the adet law to Islamic law. In

this sense, the argument of Ter Haar and Supomo holds up, for the same pattem could

be observed in many other regions. For example, the Bat& (the people of Noah

Sumatra) made it obligatory t O include adopt ed children in inherit ance, because they

regarded them as their natutal children and as the panmt's full re~~onsibility.~'Adef

laws were in fact deeply rooted and difficult to displace.

" M. B. Hookcr, Adut Law h Modcm hdon~s18(Kuala Lumpur: East Asian Historical Monograph Oxford University Press, 1W8), 104. Hazairin agreed with the argument put forward by Ter Ham and Supomo that

Islamic laws on inheritance could not be implemented as they stood. First, Islamic law

came nom Arabia and had been fomulated more than a thousand years previously.62

Second, Indonesia was home to a great many social systems, some patrilineal, some

mat rilineal, and others bilat eral (parent al), patriiineal alternat ing or double ~ni.latera.1.~~

Hazairin therefore stressed the need for a new set of laws in Indonesia that homogenized

ali the systems in existence. It may have been this consideration that inspired Hazairin to design bis '%bileral system" as a means of bridging this gap.

B. The Bilateral System

Before moving on to a discussion of Hazairin's ideas on the bilateral system it is necessary that we first provide a description of the Indonesian social system. What we will attempt to draw here is a general outline of the thne most representative pattern, since discussing ail the variations is impossible.

1. The Indonesian Social System Given Indonesian's plethora of social systems and ad' laws, we will Iunit our discussion to an account of a matrilineal, a patrilineal and a büateral (parental) social structure and the characteristics of the adat laws that apply in each case. Our example of a matrilineal system is takm fiom the Minangkabau, where the female line of descent is prefemd in matters of family authority and property. The patrilineal system is

Hazairin, 'bRmuPcagctahuan Islam dan Msyarakat," in Hszairim, Sermgkai Tcatmg Hukrmz, 1974), 115.

63 Hazairin, Huktmr Kew&m B'arwal Mmrnut al-Qur'ao dan Hadith (Jakarta: Tintamas: 1982), 1. illustratecl by the Batak, who favor the male iine. Finally, thm is the bilateral or

parent ai system demonstrated in Javanese society, where no distinct ion is made between

the male and femde lines."

The central genealogical group in the matrilineal famiiy is formed by a mother and

her chiidrem, whether sons or daughters, and then the children of the daughtm alone."

The lineage descent is drawn nom the femde line. The father does not belong to the

household; rather, it is the mother's uncle who is responsible as guardian and who

generaiiy runs the affairs of the system," holding a position on behalf of but outside the

family. In other words, the father does not belong to the family of his wife because he is

an outsider, and in fact still belongs to his own mother. The same is tnie of his wife's father and his own father, in fact of any male related by mdage. Similady, grandsons and so on are not taken into account, as members of the fdy,while the sons of a brother belonging to one's sister-in-law are include

Thus even after marriage the husband remah a part of his own kinship group, although as an individual component of the maniage he is admitted to association with his wife's famüy. He is, in fact, taken fiom his clan and brought to the household of his wife. He nevertheless fiequently "goes back to this mother's house during the

64 Hazairin, Hukcnn KewanSan Bilatd Miaurut al-Qrn'an dm Hadit4 11 - 13. Daniel S. Lev, Islapltc Corafs io hdonesia, 91. Ter Hmr, Adat Law ut 1adonmS tram E. Adamson Hoebel aad A. Arthur Schiller (New York: htitute of Pacific Relations, 1948), 51.

6s Hazaùin, Hidak Kemdv1a Hukum Islam (Jakarta: Tintamas, 1976), 6. Sec also Govindm Unny, -3 Spe~atsia Southeast Asia: A Study (New Delhi: Vikas Publishing House, I994), 5.

" Amir Syarifuddin, PeIaksarraan Hukrna KcwatZsan Idm DJsm Uzgkrmgan Adat &mgkabau (Jakarta: Gunung Agung, l984), 232. daytime.'" in contrast to the patriarchal pattern, where the women belong to the

husband's family after a mariage, the women here remain within their own kinship

group while the children belong to the mother's clan. Such is the situation among the

Minangkabau and ~erinci.~~

The farnily and social system is formed in clans or suha (tribes). To preserve the

matrüineal system, the marriage system is exogarnous. Endogamous marriage within the

same clan or suku is strictly forbidden. Consequently, marriage to cousins (whether

cross-cousins or pardel-cousins) is avoided." Those who engage in this kind of

marriage are normdy considered to be outside the famiiy and social systern.

Again, in keeping with the matrïiineal system in force, inheritance is strictly

limited to females.'l Males inhent practicaliy nothing at aii. The hein are ranged on one

side of the lineage, that is, the mother's lineage system, which Syarifuddin refm to by

the term "milateral matrilineal."n This is because the property inherited is coiiectively

transferred to the daughters or the nieces from the female side without its being divided

a Ter Haar, Adaf Law O hdonesra, 175. Unny, S'm1 6.

69 The arc situated mainiy on the West Coast of Sumatra, while the Kerinci are situated in the south part of Sumatra. SyariMdin remaria that the word Minangkabau refers to a sociocultural system rather than a specific region. Syarifùddin, Peiaksdc~amHukrrm, 122. Ter Haar, Adaf Law, 168.

70 A cousin is a relative descended hman uncle or aunt whether fiom the same grandfather or not. Cross-cousins arc relatives when the mother of ont and the fathtr of the other are not in the same line of descendant. Thcy have difftrtnt grandparents. Paralle1 cousins are relatives wha cither their fathers or thcir mothcrs arc in one liac of descendants. Hazainq, Hmd.k Krmara Hukrrm Idiw, 4-5. This ban is similar to the case within the patrilllicd system of Arab society, which prohibits magewitbin the 'zyh (clan), Hazairin, UaakkkmmaUukrrm 1.- 12.

" Govindan, -@ Sq?rem, 3 and 19.

" In this system, the descendant is traccd dong the femaic si&. Amir Syarihiddin, Pclsksmaau Huktmr, 221. into smaiIer shares. The females benefit the estate on behalf of famüy members, an

arrangement which emphasizes collectivism rat her than individualism. Thus women are

considered as the sole eligible heirs, refiecting a social system where women are at the

center of the matdineal structure. If a family does not have any female members, this

can lead to a breakdown in its structure. 73

In patrilineal society, the immediate genealogical unit generdiy consist s of a

father, sons, uncles and uncles' son." The family Lives within the society, inhabits its

own territo~y," and seems to distinguish itself fkom one sub-clan to another. In contrat

to the rnatrilineal system, the patrilineai system operates dong the male side. However,

the system of marriage and inheritance, like that of the rnatrilineal system, is unilaterai.

As in the rnatriiineal system, marriage in the patrilineal system is exogamous, a

system which ter Haar caiis "asymmetncai rnar~ïage."'~ Marriage to a woman or man

within the clan or marge is considered marriage to a cousin, which is forbidden. Women

and children fimthermore belong to the husband's clan. The woman's tribe, after marriage, lies outside her own family and society.

Hence, inheritance in such a system is limited to the male side, whence the description "imüateral patriiineal." Women are not entitled to inherit any of the

73 For more information on the Minangkabau inheritance systcm see for example, Franz Von Benda-Beckmann,Propcirtyin Socid Conthu'ty.'Cmthuity a& mange io the M2ubtaaace of hmyRdatioPShtp thug& Tkne & maqgkabay Wat Sumafera (The Hague: Martinus Nijho ff, 1979). Amir Syarifbddin, Pd8ksmaan Hukrmr Kewmkaa islam dalm LiogkLcqgdtl Adal A45bangk;abau (Jakarta: Gunimg Agung 1984).

14 J. C. Vergomuen, neSoc.. Orgmsatioa and Cwtomagdaw of tbe Tuba Bat& ofN&em Sumatra (The Hague: Mart inus Nijho ff, 1964), 2 1.

" Ter Haar, Adaf Law. 65.

" Ter Hm,Adat Law. 65. deceased's property" The transmission of the property is here again coilective, rather

than individual." As in the matriiined system, the system operates on behalf of the

whole family and their interests. Its most important feature is perhaps that it maintains

the patriiineal system within the family and society. The outstanding example of a

patriiineal system at work in Indonesia is that of Batak society?

The male is the center of the fdysystem. A family without son(s) is considered

to be on the point of collapse; hence, sons are considered essentiai. Where there are no

sons the family may adopt male children as substitutes, who acquire the same rights and

responsibilities as true sons do. Accordingly, an adopted son inherits the estate of the

father who adopted him."

The bilateral system, which is largely observed by the Javanese and Dayak

people,82 recognizes descent hmboth sides - female and male, mother and father. The system of marriage may be either endogamous or exogamous. Because the famüy n By and large, the fact is that the distinctivt characteristic of ad* law is the exclusion of womm fiom inhcriting the dcceased's propcrty. This is tnic of many devdoping Musli. coimtries, espccially patrilincal ones. J. Schacht, 6'~~,"in C. E. Bosworth, E.Van Donzcl, W. P. Heinrichs, cd., ErrcycIopaedia ofIdsra, vol. WI (Leiden: E.J. Brili, 1993), 11 1. niFor a finthcr account of the Bat& inheritancc system sec, for example; Hgmrn Slaats and Karen Portier, Traditional DGctsiott-1M-g and Law: institutions and Pmcsscs in an hd~tl~aoContcxt (Yogyakarta: Gadjahmaaa University Press, 1992); J. C. Vergouwcn The Socid Org&ation and Customas.Law of îbe Tob8-Bat& of Nortoczu Srrmatn (The Hague: Martinus Nijhoff, 1964).

79 The Bat ak people dweii for the most part in the north of Sumatra island Othcr socittics with a patrilineal systcm include the Gayo aad the Alas in Acch, Ambon, Irian Barat, Timor and Bali in Eastern part of lndonesia.

" Thc Javanese livc maiirly in the central and wtan regions of the island of Java. The Dayak people inhabit the western region of Kalimantan Island. system does not form part of a clan or tribal system, marriage does not af5ect its

structure. Indeed, mamage to cousins is not forbidden in bilateral society.

As far as inhcritance is concemed, both sons and daughters inherit âom either

parent. If someone dies before his or her parents that person's children can inherit in his

or her stead. This is &O the case in mateeal and patrilineai society (the Batak and

Minangkabau), but the transmission of substitution in these cases foïlows the gender

line, i.e., male or fernale only.

Unlike in patrilineal and matrilineai systems, where the estate is transmitted

coUectively, the biiaterai system of the Javanese recognizes only individual inheritance.

In the former the question of rights and portions does not anse, whereas in the latter the

heirs who are entitled to inherit must k determined, and the estate's apportionment

agreed upon by famiîy members.

In matdineal society, the male occupies a subordinate position, with the paternal

or agnatic relationship lying outside the tribal system of the society. In patrilineal

society by contrest, women find themselves in a.infdor position. The matemal or

ut erine relat ionship rests outside the structure of tribal tics and responsibilities. Under these circimrstances the exploitation and presewation of the position meimt, &ter alia, the exclusion of the female or male relative fiom inheritance and the enjoyment of a monopoly of rights of succession.

2. Hazairin's Bilateral System

Hazairin's bilaterai system is based on the concept of a '%bilataal system" in family and inherit ance Law. These laws represent something of an enipa within Indonesian society. His vision of a bilateral system was that the resulting Islamic Iaw would be a

combination of "divine law" and 'local culture." It is within this fiamework that

Hazairin sets forth his "bilateral system," since it represents the "divine message of the

Qur'àn and the unn na,"" on the one hand, end the needs of cumnt Indonesian society,

so rich in a& and culture, on the other.

Islamic law or Bq& ," in Hazairin's case the ShSfiPi ma&&, in particular, had been

formulated centuries earlier in the central Islamic lands and for a patriheal society."

Thae was little knowiedge available at the time to help the (classical) rnujaoids

The word Sunna in this context has the same meauing as 4adtb in that it rcprcsents the body of Iegal notions handed down &om the Prophet.

islamic law or Hqh, according to Hazairin, is human thought about man's rclationship with God, his fcllow humans, matures, and cvcn things. This thought leads to the cnation of nom. These can be arrivcd at through inteqmtive mcthods, that is. tq3 dfiqh. Hcnce Hazairin maint ains that Islamic law is a human intellectual output. Hezairin, HiKew&aq Bilatend Men~uutQm'm dm HaaW (Jakarta: Tintamas, 1982), 61. Hazairin's theoretical rgul a/-iTqb relies hcavily on #..id to achieve m@&4 and tries to cultivate a sense of ethics and justice. However, Hazairin afnrms that ont should consider the Qur'in and the Sunna as the principal sources of Islamic law; Hazairin, "Hukum Baru di Indonesia," in Hazairin, TM& Scmngkai Tentang Ui&um, 104. Hazairia, ''Muhammad dan Hukum," in Hazairin, TM& Sciraogkai Teirrtang Hukrna, 69.

What he meant by Islamic law in this case is the Islamic Iaw that came to and spread throughout Indonesia by way of the writings of previous Iegal scholars, cspccidy those of the four monumental legal schools (madhbabs)and Shibwell. Of the four legal schools (Malikite, Hanafite, Hanbalite and Shafi'ite), it is the Shafi'ites who arc dominant in Indonesia. Hazairin, 'Wukum Baru di Indonesia," in Hazairin, Tujub Scrangkai Tcintmg Hb,104. Hazairin maint ahthat the Shafici mamab is idcd for indonesians but should be reformed in order to fit Indonesian necds. Haahin, Hukum Islam daM&rj'arrakst (Djakarta: Bulan Bintang, 1960), 16. The historical record shows us, however, that Indonesian Islam owed its prcdominance to the fact that it was popular in the Coro~deland Malabar Coasts. Drewes, "Indonesia: Mysticism and Activism," 287. According to Abbas, the tcachings of the Shafi'i school have prcdominated sincc the coming of Islam to thc region. Siradjuddin Abbas, Sc/d dan Kcagmgm Madzbab Sy&'i(Jaicarta: Pustaka Tarbiyah, 1994), 239-47. Sidjuddin Abbas. 40 Maal'Agama, vol. 1 (Jakarta: Pustaka Tarbiyah, l98CbI98 1). 8-9. compare the Arab family structure and inhentance system with those other so~ieties.~~

Social anthropology only emerged as a discipiine in the 19th century; therefore,

according to Hazairin the '%bilateral system" inherent in the Qur'2 would have been

interpreted by the classical muj&clS as a patrilineai system.

Powen notes that the science of Islamic inheritance or 'h~fara~(science of the

shares) was produced by Musiim scholars living at the end of the ktcentury A. H.

Muslirn scbolars applied their hermeneutic skills to several Qur'ànic verses and

Prophet ic &&hs on inherit a~ce.~'Since that t ime, however, Islamic inherit ance has

interacted with local ideas, customs, nom, and processes relating to the

intergenerational transmission of property. Islamic inheritance may have emerged nom

Islamic legal doctrine, but Muslim scholars have achieved their desired goals in

formulating it."

When Islamic inheritance law came to be applied in Indonesian society, those

deciding the cases were faced with the powerful influence of adat laws. Indonesian

'' Hazairin then adds that this kind of intctpretation is a dcviation, since the intention of the Qur'h was to change Arab socitty. Hazainn, Hukrmt Kewansm BilatdMaunrt &QW" dm Hadith, 75.

M David S. Powers, "The Islamic Inhcritance System," IdmcLawaadSocJ'ctyS/3 (1998), 285.

87 On the Inheritance systcm and the infiucncc of local custom, set for example David S. Powers, "The Art of the Judicial Opinion: On TawEj in Fifianth Xentury Tunis," Id'kLaw sud Society 513 (1998), 359-381. See also Franz von Benda-Becianann, RmP#ty AI Social Clmtirizu'tyt ConthiYy and Cibaqgt in the Mairrt~~~aticeofhm 11:2ation.&ips Zhu@ Timic io Waqgkilpb84 Wcsl Sirmatta mcHague: bhtinus NijhoK 1979). Anothcr tension betwen the Islamic inheritancc nùcs and local socid praxss of inheritancc systtrn is analyzcd by John R &wcn TouMay Not Givc it Away: How Social Nomshape Islamic Law in Contnnpor.ry fadonesian Jurisprudence," IdecLaw mdsocie~513 (1 998), 3 82-408. society is, fier all, known to hold vey strongly to sda." In other words, Islamic

ixiheritance rules were not Myaccepted. One other Rason for the difficulty may have

been the terms under which Islam spread in Indonesia, which did not give much weight

to based interpretations of the fdyand the inheritance ~~stern?~As a result,

cases of inherit ance became increasingly complicated for Muslims in ~ndonesia." Even

today, in cases of inheritance, there is stilI considerable doubt as to where adat Iaw ends

and Islamic Law begins.

In such circumstances, according to Hazairin, himian beings had to exercise their own judgement to determine the appropriate course of action in applyiog Islamic law?

This inevitably involved of which Hazairin was a staunch advocate. Supporthg

" It is understandable that Indonesian Muslims should adhm so strongly to sdat and oldcr traditions. Since it was through t~awwufthatlocal people wert fht convertcd to islam. Evtn the new teachings werc givcn new meaning and importance. Howard M. Fedcrspiel, Pesatuan ~slam:Idamrc Refom h Twentieth Ccnw hdonesra (Ithaca: Corncli Modern Indonesia Project, 1994), 2; Deliar Noer, The ModeRusr M& Mioyem~ntAI 1odone;~18'e9Oû-1942 (Siagapore: Oxford University Press, 1973), 12; Benda, ïZe c1.esc~cltand tbc Rbhg Sm, 12; William R.. Roff, "Southeast Asian Islam in the Nineteenth Century," in P. M. Holt, Ann K. S. Lambton, and Bernard Lewis, cds., rbc Cambndgc ljllstory of Islam, vol. 2. (Cambridge: Cambridge University Press, 1WO), 155-6.

89 The Shd'a (Islamic Law) is believed to have had lem infiuence in the spread of Islam in Indonesia, so it makes little sense to argue that Islamic inheritance law is commonly accepted there. Cf. G. W. J. Drewes, "Tndoncsia: Mysticism and Activism," in G. E. von Grunebaum, ed., Umly and Vanéty h Mkshz CiwXzation (Chicago: University of Chicago, 1955).

90 Lev observes that inheritance laws in Xndonesia are confushg and have invitcd "intricate and lively dcbatc among legal professional and political activists." Lev, Id'. Courts in hdonesi'a, 185. Current rcsearch shows that inheritance cases are still resolvcd in different ways. Some apply the des of Islamic inhcritancc, while some apply the Ntcs of adat inhcritance. In many cases people mix Islamic and adet practices. For example, sec the rcsearch in Laporacl Ud hncfitiarr Tèntagg ~d'dl~aanPewatisan di Kdaogan @mg-oraog hhm pli Bebcrrclpa DLOCT& dr' hwa Teogab (Semarang: Lembaga Penelitian, Pengembangan dan Ptngabdian Masy arakat WIN Walisongo, 1982/1983); ste also Institut Agama Islam Negeri Sumatera Utara, Laporaa study Krpsm ~egcmom'rasKduarg8 dao ~wagamanBciragama dhAdIisyarakaf Bat& Kan, (Jakarta: Proyek Kcrukunan Hidup Beragama, Depag RI, 1980). what he called neo-#tibi(i: he believed that the notion that the gate of @ibs'dhas opened

wide arose because people had lost their trust in the mercy of God or "ra6mer ab'':^'

In the twentieth century people do not consider certain human beings as having super powers aiiowing them to act as God; therefore they regard other m@ahi& (as human beings). The value of their work is equd to what they have done, in the same way in accordance with the time. As long as people believe that the spirit is alive and trust that the mercy of God is never withheld, accordingly we have the right to trust that a new gate for new mujtabt'a6 is certainly open?3

&ti&Odasan interpretive method was becoming the prefened means to revise Islamic

traditionalist thought in the light of changing circumstances. Consequently, Hazairin

detrrmiaed that mujabi" in Indonesia were needed to meet the demand of nw-&Zhd.

A new clas of rnujahids could be created through Islamic educational reform based on

the teachings of the ~ur'h.~Islamic institutions could produce mujtai' able to

interpret the Qur' in and &&th in accordance with the needs of society?' In this respect

Hazairin held a view about the formuIation of new laws much different than those of

modernist reformes since he saw society as the primary institution to be served while

92 Hazairin, Hukrrm Islam dan Masyatakaf (Jakarta: Bulan Bintang, 1960), 16. Ste also, Hazairin, "Lmu Pengetahuan Islam dan Mayarakat," in Haairin, Tu/'& Senmghi Tmtmg Hukrna, 11s.

93 Hamirin, Hukrm> Id" dan Msyarakat, 16. Hazairin, "hu Pengetahuan Islam dari Masyarakat, " 1 15.

94 Hazairin, Hukum Islam dm Mc~sjarakar,18-20. Hazairin, "Umu Ptngctahuan Islam dan Masyarakat," in Hazairin, Tq& Scrac~gkaiTmtaug Hm109-20. He was convincd that rcfom through the efforts of th mu/'tabiclS dcpcndcd in the first place on cducationai improvement. That is why hc cmbarked on establishing an Islamic University.

9s Hazairin, Hukum Idam daa Mmyarakat, 17-9. Sce alsa his Hukum Kcwdnsm Bilatwal Mhmt al-Qw'' dao Ha&%, 61. Nur Ahmad Famiil Lubis, 'TsIamic Legai Litmaturc and Substantive law in Indonesia," Stu&aIdatllljGia, 4: 3 (1997), 54. most other refonners were intmsted simply in applying Islamic law. It was a matter of

approach.

Despite the fact that ijti6ad has had a problematic hi~to$~Hazairin sought to

iostitutionaiize it so that new rnujaaicis would be qualined not only in religious

lmowledge but in modern science as well. This was in order that ijtitiidshouid be able to

answers the needs of contemporary society. Hazairin argued that pafomiing ijibidwas

a social responsibility 97- in this he anticipated Hallaq's dennition of Qtibid as "a

re'eligious duty (f@ kifiya) incumbent upon all quaüfied jurists whenever a new case

shouId appear.''98

Hazairin offèred a socio-anthropologicd interpretation of the Qur'k aimed at

showing its compatibility with society's needs. He insisted that Islam, as a body of

teaching, has not as yet been finalized or made definitive. Islam is constantly open to

rehterpretation in accordance with new demands and developments. He came ta the

conclusion that Qur'ènic laws may be appiied in any part of the world, as long as one

does not rely on tq~89with respect to the classicai ' d'a' who had conducted their

- - % The problem of the gate of Qtibiifhaskcn intcnsely discussed to this day by scholan. Hailaq, for example, has discussed this in "The Gatc of Ijtihad: A Study in blamic Legai History" (Ph.D. dis., University of Washington, 1983). Sec also Wael B. Hallaq, 'Was the Gatc of &tibid Closcd?'" htcmationaf hdof Mdde EM Studies 16 (1984): 341 .Hallaq's contribution to the debatt is analyzed in Michel Hotbink's Two IIaves of fbe Sam~Tm&: schacbt, Hdaq and the Gate of@ibad an hzqUrryato Dehitioa Ulto Dchnti~(Amstersdam: MERA, Mid& East Restarch Associates, 1994).

97 Hazairin, 'Thnu Pcngetahuan Islam dan ~asyarakat,"in Hazairh, Tg'Su=angkai T~tltaqg uukrmt,115-1 16.

98 HaUaq, 'Vas the Gate of &tibàdClosed?," 5.

99 Taqfidmeans to &pend on the ltgal intcrpretations of rccognized scholars without oncself exaraining the proccss by which that interpretation was reachcd. #Uhidrnore than a thousand years ago. According to Hazairin we should conduct our

own Ij.ftbid of the Qur'in and &ad?i% in a manner compatible with current social

conditions and in accordance with justice.

Hazairin simply took upon himself the task of exercising i/'t&id in an effort to

develop "bilateral system," which he admitted to be the product of his 'personal

@..id." The system that he proposed was one that he considered ideal for any family

and society, although he may have been drawing on some Indonesian models. The

consequence of a bilateral system, he reaîized, would be nothing less than the coilapse of

the clan system in Indonesia. Since the system would completely transfomi the family

and social system of Indonesian society by making it into one, uniform system. Hazairin

referred to it as a "revo/usisosid "

The ''bilaterai system" would be acceptable for several rersons in his eyes. First, it would not be opposed to any religious law. Here, regrettably, Hazairin did not explain how and why this would have been the case. Second, the system was in accordance with what the Qur'k intended. The Qur'in, he insisted, is "anti-unilateral society" and prefened a bilateral system of society. Basing himself on the verses in the Qur'àn conceming marriage and inherit ance, '" Hazairin concluded that a& pract ices in marriage and inheritance among Indonesians that were dateral in nature, were non-

~ur'ànic.'~'Hazairin remarks, '9 am sure that the Qu'Zn oniy blesses societies which are bilateral."'02

-- 'O0 In dcfining inheritance. one cannot escape the question of marriage law, for inheritance rests upon the two principal grormds of rnamiage and blood nlationship. N. 1. Couison, Succcssh ia the Miwb Fdy(Cambridge: Cambridge Univmity Press, 197 l), 10. TWd, the system would lead to the disappearance of clans, and al1 that this would

entail. 'O3 Hazairlli's training in adat law led him to the conclusion that extemai factors,

such as modemization and rnbanization, would change society from a "non-bilateral"

into a ''bbileral society." He predicted that women would favor the bilateral system at

an early stage in their emancipation. This would aiso lead to gender equality ia family

and social systems, and consequently equal inheritance rights for the male and female

lines. Hazairin saw social change as hastening this adoption of a biIateral system and

concluded that Islam supported it.lM Hazairin embraced this process as a leading

motivation behind achieving the Qur'ânic goal of imifjhg society in a "bilateral

system."

Basing himself further on a method of understanding the Qur'5n which he defined

as "ta&& yaog oteot. (authentic interpretati~n)'~~- i.e., the inteipretation of the Qur'iin using modem science -- Hazairin used a socio-anthropologicai approach he had

developed himself. He concluded that the system favored by the Qur'b is bilateral sui

gene.n~.'*~This rneant a "biiaterai system unique to the Qur'h," not the bilateral

system cunently in existence.lo7 Accordingly, Hazairia interpreted the matriage and

102 Hazairin, Hukran Kekcluargaan Nsionel, 5.

104 Lev, interview by author, 13 May 1999, Montreal, tape rccording, Quality Hotel, Montrcal.

Hazairin, Hmdak Kkinaua Hukum Ide 14. Anwar Harjono, "Hukum Ktwarisan Bilaterd menunit ai-Qur'an: Komentar Singlcat Atas tcori Pro t Hazairh," in Sajuti Thalib, Pemba6man Uukum IsI862,67. inheritance verses of the Qur'anic as a unit. The result was that every interpretation of

the marriage verses was linked to the inheritance verses.'"

Hence, the traditional interpretations of the Qu'% were not to be taken as binding

upon modem Mush societies. Hazsirin offered a new interpretation of the social

system which he believed was intended by the Qur'àn. The concept of '"biiateralism"

needed to be explained in exegetical terrns which transfonned it into social practice. The

verses treating specifically of marriage and inheritance are TV: 23 and 24, ZV: 11, 12 and

176.'~Hazairin, for example, considexed verse N:23: 'Trohibited to you (for matriage) are your mothers, daughters, sisters; father's sisters, mother 's sista. .. except for what is past, for AUah is Ofi-Forgiving, Most Mercifil," and verse N: 24: "Also prohibited are women already mamieci, except those whom your right hands possess, thus that Allah ordained (prohibitions) against you: except for these, di others are la- ..." For

Hazairin, these verses had no resemblance to the mwiage system then being practiced in Indonesian Muslim society. For instance, the phrase fiom verse TV: 24 .. ."except for these, di others are lawful"ll* (wa u&!!a lakum mi wma'a &&&mi) indicates that marriage to cross-cousins and pardel-cousins is not forbidden. The Qur'Zn thus

'07 For example, the bilateral system of inhcritance among the Javanese, according to Hazairi., does not entircly refîect the Qur'anic version for in somc cases women arc excludcd fiom marriage and inhcritance cases. As a cltar illustration of this witness the marriage hown as ma& koyo (a practice of polygamy), in which the second and the ncxt wife are not considercd as a part of the family and do not have rights to thcir husbauâ's propcrty. H828ifii H' Islam dao Masyaraka f, 17. la Since inheritimce is so closcly iinked to marriage practice, any discourse on one topic must consider the othcr. Inheritanct is rooted in the family systcm, and the famiiy system is rootcd fkom the marriage system, and both will influence the social system. Hazairia, U~dakKcmma HukumIsl- 14.

'O9 AU translations of the Qur'k verses in this thcsis are taken fiom 'Abdullah =uf 'AI4 The Me&g of&C Holy Qw'& (Brentwood: Amana Corporation, 1994). challenges the marriage system of materal society, whether patnüneai such as among

the Batak, or matdineal as among the Minangkabau, with their prohibition on maniage

between cousins.

Hazairin finthemore argued that there is no abrogation1" in the Qur'h.

Accordingly, di verses in the Qur'hshould be taken as guidance. ' l2 The Qur'b should

moreover be understood to be cornprehen~ive~and all its parts inte~elated.Basing

himself on this notion, Hazairin maintained that the idea of abrogation is rejected by the

Qu?& îtselt The Qur'L ID: 7; II: 85; and IV: 82 are, according to Hazairin, verses that

reject the idea of abrogation."' There is not a singie verse that is abrogated by the

another verse.

~a(IIt0Sfunction as a supplement to the Qur'àn and are therefore indispensable to

the Qu'in's interpretation. Hazairin believed that &ad?. do not contradict the Qur'h

and that the inherit ance 4adil6s should be interpreted in concert with the Qur'k, even if this had not always beea the case. Mu/Ya&iudS in classical times evaluated &a&& on the

"O %xcept for these" mcans except for all women who arc forbiddm to many.

'l' Abrogation reprcsents the tcm na& in Arabic. One use of this term is as a technicai teim used by Islamic scholar to dcsignate a variety of deged 'phenornena' discussed in the area science of @ al-fqh. The 'phenornena' had a gcneral basis in the concept of replacement 'carlier sources by the latter sources. The tcrm nmkb does not only dcnote a single theory concerned with problcms of Qur'Zu but also of &&h. The implications for the operation art three. First is replacement the bukm (legal conscquences) and the text. Second is replacement the ody and third is rcpIaccmcnt the text ody. The rtsult is the abrogated (earlier sources) is no longer valid. For detailed information sees Ab6 'übaid al-Q&im bin al-Saiikn, Kita3 alalAWkdiwa af-M(u~sa,tram. E. J. W. Gibb Memonal, cd John Burton (Engiand: E. J. W. Gibb Mernorial Trust, 1987), 1-42. Sce also Ibn al-Qwk,al-Mùqad'a fi al- 'Usu/ (Beirut: DZr al-Gharb al-Isl-ank, 1996) basis of their imid(chain of transrnitters) rather than on their mafn (the content of the

text). While the matu, according to Hazairin, conveys no absolute meaning, it is often

interpreted without regard for the contextual meaning of the Qur'kic verses, and often

with a patrilineal bias."'

Of course Hazairin still recognized that certain verses on inheritance appear to

argue for a "less than gender-equd social system," given that they stipulate double the

share for males as compared to fernales. But even here he sees extenuating

circumstances that need reinterpretation. Much of his detaiied analysis of the issue

pertains to cases of inheritance iavolving such issues as 'qaba (agnatic relative), kdala

and orphaned pndchiidren, 'l5 for these three issues are directly related to the problem

of the Islamic and adat inheritance laws of Indonesiau society.

HazaiRri attempted to mate a new and soiid system, which differed fkom the traditional one. He discarded the tradition of applying nqFs (iegal basis fiom either

Qur'k or OB&%) to practical cases, and grounded them in considerations of socio- cultural benefit. This practice, according to him, would be guided by "tamb~suld' (provident id) act Mty.' '' He thereby proposed an argument combining empirical reality wit h Islamic values.

LM Hazaùin, Uukrmt Kcwanhn Bila& Miimt al-Qtn'aa dm H'diîh, 75. Nazairin's argument hem is about the hadikh of Ibn 'Abbis on '~aba(agnatic relatives). This is wiU be examincd more closely in the third chapter of this thesis.

~hcseanalyses will be explaincd in chapter three of this thesis.

Il6 John R. Bowcn, "Qw'h, Justice, Gender: Intemal Debates in Indonesian Islamic Jurisprudence," History of Rclig.1'0~~~38/1 (1998), 69. Tdmbal sulam act ivity hcre, according t O Hazairin may bc defincd as an activity of interpretation of the Qur'in rclating to social conditions and vise-versa. Distancing himaelf hmclassical inteqmtations of the Qur'anic inheritance verses,

Hazairin advanced his own interpntation on the basis of a semantical approachl" and

the verses as the basis for reconstructing what he caiied Yhe bilateral inheritance system

according to the Qur'in and He also developed a detailed analysis of

"replacement hein," people who are Iuiked to an eligible heir who dies before they do. In

various Indonesian societies, according to Hazairin, shouid someone who ought have

inbented die prior to doing so, hidher descendants would receive hidher share.

He argued that the bilaterai inheritance system operated on general and universal principles, most notably the principle that both femaies and males inherit property, and that daughters and sons have equal rights to the property of their parents.''g Hazairin is believed to have been the first legal authority to put forward an Indonesian "sense of justice" (rua keadil') and ethics, particulady with respect to the gender bias in the transmission of property and within the discussion on Indonesian mpI'a in Istamic

In addition to the Qur'h and those provisions of the &dito pertaining to the theory of biiateraiism, Hamirin recognized the need to use qiyh (analogy). He drew his own

117 His argument relates to IV: 176 where the word kdaa figures. See Ai-Yasa wrote that in yul al-fiqhthe= are thme categorics for interpreting the names (d~a).First, 4d(a belicf that this is what God intends); isti'mal (baseci on the tradition of the Arab society during the Prophet time), wag (semantic anaiysis). Hazairin, ai-Yasa ad&, put himself in a position of al and al wad Abu Bakar al-Yasa, "Hukum Waris Scpertalian Dara Kajian Perbandingan tcrhadap Penaiaran Hazairin dan PenaIaran Fiqh Madhhab" (PhD. Diss., LAJN Sman Kalijaga, Yogyakarta, I989), xvi.

"' This prominent idca is expresscd in his book Kew&m Biatd Mmwt Qw'm dm Hadit&.

"'Hazairin, H.Kckeuargaan Nartonal,4.

"O Bowcn, "Qur'b, Justice, Genh,'' 68. analogy between what the classical mqitaéi(6 did in the past and what mujahids had to

do today. If classical rnujaaids pdorrned @iaidaccordhg to the needs of their society,

then modern-day mu~'tahia5are entitled to peh@taadin the same way, as long as

mqf'a,ethics and justice are t aken into consideration. 12'

Hazallin also saw the relationship between law and social change a dynarnic one.

He believed that, when times change, the law must also change. Hazairin's conclusions

anticipated June Collier's assertion that: "d the same time that we attempt to analyze

other societies, however, we must examine our own. As thinkers, we are products of our

time and situation.. .. 9,122 In its historical development, Islamic law alone recognized this

dialectic whereby the law changes and adapts to time and place (sBZiQ zam& wa- m&&). '" Thus, Hazairin tried to refoxm not only Indonesian ad& inheritance desbut Islamic

inheritance law as well. In addition to introducing uniformity into a& inheritance

systems on the one hand, he wanted to reform on the other, certain aspects of the

classical Islamic inberitance system by reinterpreting the Qur'ik. As a matta of fact,

122 June Collier, "Legai Process," &udRe~cw ofhîbpoIogy4 (1975). 135-6.

123 Witl B. Haiiaq, A UIsto~ofidmk kgal Theonès: An htroductlon to SmwUsa al-Fiqb (Cambridge: Cambridge University Press, 1997), 248. Flexibility is valucd in Islam itself, the cariy scholars recognized it tbrough qs'ida by way of " sl-'Zdd d-m@a;c9mas' or ''Mu~ayyhhal-&&m tatag;hamal '-ab wa a/-smkula." Sh'ifi+i himsclf bad two sets of opinions, qaul qadua and qaul JB& rcntcthg the influence of diffit places and t imcs, the former whm he was in Baghdad md the latter when hc was in Egypt. This was conmionplace among the classical ' dm2. N. J. Coulson, A HIstoy of Id'cLaw (Edinburgh University pnss, 1964), viii; N.J. Coulson, Coaaicts and T~'cuzsia khmk hn$m&nce (Chicago: The University of Chicago Press, 1969). 20-5. some recent studies point to similar moves in this direction, such as Kimber's "The

Qur'anic Law of ~nheritance"'~'and Carrol's "Orphaned ~randchïidren."'"

It is easy to see that his formal training as a professor of adat law had a great impact

on his mode of analysis, and that it caused him to read the Qur'ari and the Sunna in a

new light. He also drew heavily on the social sciences, particularly adat law and

ethnology. His analysis then was a unique interpretation of the Qur7in and the bad?tli in

particular, and of law as a comprehensive system in generai. Although Hazairin humbly

claimed that his work was no more than a contemporary reading of the Qur'k, being in no way an exegetical or a legal work, his thought reflects considerable depth and range,

and stands apart from other modem treatments of the subject.

Hazairin's approach is to some extent similar to that of the Syrien scholar

Mdpmad Shdpür. In this context it is useful to consider Haiiaq's comments on similar issues and on Shalpk's approach to the interpretation of the Qur'b in parti~ular.'~~Shdyür, according to Hdaq, takes an approach which consists in a 'ke- reading" of the Qur'h and the Sunna based on modem and naturai sciences. 12' Sh-,

'*' Richard Kimber. "The Qur'kic Law of Inheritance," Id-c Law adSocieiy5 (1988), 291- 325. Here Kimbcr proposes a new intcrprctation of the relevant texts and examines the inheritaace system in the iight of its classicd interpretation.

Lucy Carrol, ''ûrpahned Grandchildrcn in Islamic Law of Succession: Reform and Islamizat ion in Pakist an,'' Islapllc Law and Society 5 (1 988), 409-47.

126 In A Uistoq of Idamic Lcgd TheozfmHaliaq has noted Sw'snotion of using modcm sciences in approaching Islam; sec tsptcially pages 245-54 and 259 of this book

'" Hallaq, A B3toq of Islapll'c hgal Theones, 246. an cngineer specializing in mathematics and physics, bases his intexpretation on a

"contemporary reading" of the Qiny&as an exegetical or a legal ~ork.'~~

In this context, both Sh- and Hazairin utilue modern science to interpret the

Qur'aii and the Sunna. Although coming nom different backgrounds - Shaipür being a trained engineer ad Hazairin an ethnologist and legal scholar - they bath saw the need

to undertake a re-reading of the Qur'in and the Sunna, which Hazairin accomplished

through his t&k yang otentik (authentic interpretation), and Sh- through his

"contemporary reading."

From a social anthropological perspective, Hszairin's approach may be considered valid. There is after aii a close correlation between anthropology and law. Since we need to understand the relationship between society and legal development, it is helpful to view the legal problem fiom this perspective. Social anthropology tries to understand many aspects of social Iife- culture, religion, traditions, etc. In a complex society Iüce

Indonesia, of course, pluraüsm is based on several adat legal systems and on the legal relationships of numerous groups that comprise a polyethnic, or multi-interest social system. Social anthropology cm thmfore open windows for those seekiog to understand the evolution of a society in terms of its legal instit~tions.'~~Hazairin's socio-anthropologicd approach to Islamic legal refonn seems to be set against this, background.

128 Haiiaq, A HiSto~of Id'c kgal ~con'es,246; sec also Muhammad Sh-, &=ta3 wa d-Qm'h: QirZa Mua *W.(Cairo and Damascus: Sirna li aialNash,1 WZ), 45. Hazairin, XmdskKmam HuhrmId- 3.

130 Socio-anthpological and ethnographical approachcs towards lcgd discourse have oh ken adopted. Rene R Gadacz, Towd an Ai>~pologyof Zaw ir> Cimpkex Society Aa hdp3of Btical Conccpts (Alberta: Western Publisherç, 1982). Many scholars maintain that rcform is bascd on a recognition of the itself, fashioned hmthe raw matcrial of local Hazairin claimed that when the Islamic law of the classicai ' dama' is applied in a

certain society there is no guarantee that it will fit, since each society has its own

culture. Adat law, as a product of that culture, is therefore certain to have an influence

on the provisions arrived at so long ago by these 'dmZ This can be seen fkom the

development of Islamic inheritance law, which was itself infiuenced by pre-Islamic Arab

practices. 13' If this theory is vaüd, it demonstrates that the lslamic law contained in the

Qur'h is flexible enough to be interpreted in any society. The interpretation of the

Qur'h as a divine law must meet the needs and reflect the culture of a society. Thus,

Haairin's interpretation of the Qur'in showed how the Qur'àn can be interpreted as

long as there is no deviation fkom the Qur' Bn itself. 13'

Hazairin, furthemore, was fully aware of Indonesia's social problems and the values inherent within its different cultures. He saw these problems as being rooted in the confusion over the respective applications of adet law. Hazairin therefore took both

Islamic and ad& Iegal values into consideration. He saw it as important to begin any social engineehg with legal reform. He tried to develop a hypothesis on the basis of a cornparison of Indonesian and Arab social conditions, given that Islamic law had bt necessity and administrative practice, systernized and Islamized by the work of early jurists. See for example, Nonnan Anderson, Law Refm ia tlie MusLim World (London: The Athlonc Press, 1976), 86.

13 1 The systcm of '4saba in islamic inhcritanct law, for cxample, is bclicvcd to have becn heavily innuencal by the nites of pn-Islamic Arab family structure. N. 3. Coulson, Cod5cts ami T~13stomh Idmc Jcrnspnrd'ce (Chicago: Tht Univmity of Chicago Press, 1969), 8-1 1. Abdullah Syah, htegrasi antare Hukran Id~mdan Hukrnr, Add dalm Kewmsan Suku Meleyu di Kecam8tm Tm,tmg Pm8 (Jakarta: Badan Pcnditian dan Pcngembangan Departement Agama Rf, 1980), 38-9. Set ais0 Lm, Id'c Corrrts, 219; Reuben Lcvy, the Socid Stmcfme of Idam (Cambridge: Cambridge University press, l962), 147-149. been formulated in the latter context. He came to the conclusion that his bilateral

system could provide a way out of the social complexity that Indonesia faced. But to do

this, Islamic law had to be incorporated at the state Ievel.

C. On the Institutionalization of Islamic Law

Hazairin's thinking on the institutionalization of Islamic law favored a bilateral

system with both a contextual (empirical or socio-culturai) and a textual

(transcendental) basis? Hazairin reiied on his interpretation of Qur'àn N:59; "O ye who believe! Obey Ailah, and obey the messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to AUah and His

Messenger.. .." His argument was that every Muslim must obey the desset by Go4 the

Rophet and the ÜG d-amr (leaders).

Based on this verse, Hazairin posited three legd sources for deriving Islamic law.

The first consists of the Qur'En; indeed, all believers have an obligation to obey the guidance of God as stated in the Qur'h. The second is constituted of the Sunna of the

Prophet, which serves to explain the Qur'àe He conceded that the Prophet may have provided new information which cannot be found in the Qu'Zn, but which is no less valid and whose application is mandatory. Intezpreting &adth need not contradict the

Qur'in; indeed they should be seen as complementary to the latter. The third and final source is "those in authority (Uli al-amr)." Whmver there is no text that offers a solution, and whenever Muslim scholars are unable to agree on a solution, their

IJ2Nw (the QuryGn and &&th) contains rn ctcrnal message which is adaptable to any thand any place. Amiur Nmddin, Oriibid 'Umar Ibrr al-Xbatta'b: Studi T'fang P'baban Wukrrm Dal'Islan, (Jakarta: Rajawali Press, 1987). xy and 170. '33 Bowcn, ''Qufin, Justice, ûcnder," 69. agreement constitutes @ma'in his eyes. If the case diffa fiom the particulars stated in

the Qur'àn or Sunna, the ÜEal amrmay resort to analogy. This method cm be extendeci

to many diverse issues.'34

Legal innovation, thus, is achieved through the c7li al-=% proper interpretation of

the Qur'àn and the &a& and by reference to the conditions of Indonesian society. For

this to be achieved, howevcr, by codification of the Law was imperative. To accomplish

this, Hazairin called for a "national madbhab, "or "Indonesian madabab"- a new school

of Islamic law with Indonesian characteristics. This new ma&&& would take full

accoimt of the social anil historical context of Indonesia. To follow the provisions of the

constitution would mean to folIow the tZ ak14121t and in turn obey Islamic law."' An outspoken movement based on this idea emerged in the 1950s.'~~

In attempting to transform his bilateral system into a national ma&&, Hazairin became directly involved in the Biii for the Undang-undimg Pembangunan Nasional

Semest a Delapan Tahun 1961-1 969 (Constitution of National Development for Eight

Years 1961-1969). Point 402, subsection 4 legalized the existence of a bilateral inhentance law, which was decreed by the Madjelis Permusjawaratan Sementara

(MPRS) as Decree No. II, December 3, 160.'~'

Sec H-, 'Thnu Pengetahuan Islam dan Masyarakat," in Hazairin, T@& SmkU Tmt'Hukrrm,109- 120.

13' Many Muslim Icadcrs debat cd Hazairin ovn t hcsc changes to the constitution. Sec, Sajuti Thaliù, Scmitrar Hukrrm Na'o~aî:Azas-iuas Tata Hukum Nksional dalm Bid'gUukLun Wd (Jakarta: Panitia Stminar, 1963). In the sphere of property, and as an adjunct to his bilateral inherïtance system

HazaiRn also calied for the establishment of a "bayt ai-mal" an organization for

couecting zak; (alms) fkom hhslims. Zska is one way to advance Muslim economic

fortunes for the benefit of Mushand non-Muslims alike. Hazairin believed that zaka;

in muring the economic weii-being of Muslims, also benefited non-Muslim so~iet~.'~~

To deal with Islamic law as interpreted in Indonesia, Hazairin suggested what he

defhed as a mazdbab Indonesia The maclrhhab Indonesia would essentidy consist of

the Shafi'i ma&&& but in this case tailored to meet the needs of Indonesian society.

Its activities would embrace three matters: first, zakaand a bsyt al-maI with Indonesian

characteristics; second, the reform of maniage law in accordance with Islamic law- i.e.,

a bilateral system reflecting Indonesian realities; and third, inheritance which is bilateral

based on the MPRS decree, as mentioned ab~ve."~

Hazairin argued that the need for an Indonesian madllibab was logical because dqlr

or Islamic law, which is derived fkom Arab society, was ill adapted to Indonesian

society. The incompatibility was due to the fact that the Indonesian and Arab social structures are different. '" He then questioned whether indonesian Muslims would cease to be followers of the Prophet if Islamic law were to some extent formulated dong

Indonesian lines in the fonn of an Indonesian madaaab."'

- 13' Hazairin, Wukum baru di Indoncsia," in Hamirin, TM& Scmq,TkafmgH&un, 97 and iû8. Hazairin, hdonesia Satu Mdlsdjid@jakart a: Bulan Bint ang, n. d.), 12. Institutionalkation aiso led to the idea of establishg a body or an organization

designed to help the Muslims of Indonesia resolve disputes over points of Law. The

organization wouid hction as a "rna/Zs fatwa" (fetwa council), designed to work

towards &micand fltritZ4 or consensus through discu~sion.'~~He saw as well the need

for other religious groups to set up simüar counciis to decide matters of concem to them. This majlis would refiect an '?slamic democratic system according to the Qur'ân and &s&th."'"

In terms of institutionalization, Hazairin may be said to bave taken a middle position on the living law - both Islamic and adat law-- in order to estabiish a positive, sovmign law. In positive law, a law must be subordinate to the lawmaker. This theory, according to the proponents of legd positivism, upholds the maxim "law is a commmd of the lawgiver. sr 144 The lawgiver or govemment can ody make a debinding by virtue of its authonty, since authonty alone has certainty in law. Hazairin therefore suggested that Islamic law be formally enacted by govemment a.implemented on the basis of formai law .'" Hazairin's position seems to conform to the theory of legal positivism developed by

John Austin (1790-1859).lM The latta believed that "a law is a command, which obliges

142 Hamirin, Indonesia Satu M~sdJ'i'8.

'" Hazairin, hdm& Satu Mwjjd; 8-9.

1* Daji Dannodihajo, Shidarta M. Hum, Pokok-pokok FiLsafat Wukrna: Ap daa Bagaùaarra F'safat Hukum hdonesia (Jakarta: Gramedia pust aka Ut ama, 1995),110.

145 Hazairin, "HuhmiBaru di Indonesia," in Tyk&Semngkai T~mgHùhm, 101.

John Austin is the fathcr of Lcgal Positivism. according to which thcory Law is the command of authority. Austin's thought occupies an important place in the history of English ulilit ariaaism. He wrote a monument ai work caiied &behvincc of hspd~tlccDcteim2itrd a a person or persons.. .. Laws and other commands are said to proceed fiom superiors,

and to bind or oblige infenors. 9s 147 Furthenaore, Austin emphasized that the

gove~~l~~lent'scommand is sovereign. Sovereignty is to force others to obey, to orient

attitudes in a desired direction. After aU, a Iaw may be just, wise or ~bli~atory."~Based

on this view, Islamic law has to be determined through the authority of the lawgiver,

and given legal certainty. In other words, legal validity is in the han& of the

govemment.'49 In this manner, Hazairin intended to make the living law the cornmand

of lawmaker. However, it is true that Hazairin was biased in considering Islamic law

aione for this role, and in downplaying adat law as a basis for legislation.

Anaiyzing Hazairin' s intentions fkom an ant hropological perspective cm be

instructive in this regard. Anthropologists see the law as one aspect of a society's

culture, one that the lawmaker needs for social control. Thus, when ad'? law coincides

with another type of law, in this case Islamic law, the lawmaker has the authority to

collection of lect urcs, fht pubiished in 1832. Sec M.P. Golding, tbc Natm ofLaw (New York: Random House, l966), 77; Darji Darmodiharjo and Shidarta, Pokok-pkokFiasafat Hh,97.

147 As quot cd fiom Darji Dannodiharjo, Shidart a, Pokohpokok Fisafat Hw97. For furtha information on Austin's work sec John Austin, "A Positivist Concept of Law, fiom the Province of Jurisprudence Dctennintd (1832," in Joel Feinberg and Hyman Grass, cds. PMosophy ofbw (New York: Wadsworth Publishing Company, 1995),3 142.

148 John D. Finch, llttr0duy:tiun tu Legai Zbeo~~(London: Sweet &Maxwell, 1979), 26-7. D. Lyons, Eréics aad the Rulc of Law (Cambridge: Cambridge University Press, l983), 7-8.

149 Anothcr school of law, the historical school (h?z3tonscbe ReClitssCaule), says thst positive law is the living law of society. For this school, positive law embocües the customary law of a society. Von Schmid, Pe- tetltang Negm dan Hikum da/am Abad KèsunbJÏm Belas, tram. Boctarman (Jakarta: Pcmbanguaan & Erlangga, 1979), 62-3; S. Soekanto, PhpcktrT TeonTiS Studi Hukraa dalm Mdsywakat (Jakarta: Rajawali Press, 1985), 20-1. Sec also Darmodiharjo, et al., Pokok-pokok Filsdat Uikum, 1 1 1. reorganize it.'" The Indonesian govemmmt was therefore in a position to remange

adat and to bring it more closely in line with Islamic law.

In this sense, Hazairin agreed that adat law is a living law, but one subject to

alteration, since adkt may be said to be a product of the culture that authorized its

making. Hence, Hazairin was convinced that Bdat law could be re-authorized by Islamic

law. Just as classical ' dima' had created a ô@(Islamic law) for Arab society, Islamic

law as a divine law codd still be infiuenced by the culture of a local society. This is in

line with the maxim of al-idab rn&akkma (adat can be a (Islamic) law). Thus it is no

wonder that most fiqh is male-oriented, by reason of the fact that it was influenced by

Arab society, which was patriarchal.

Hazairin held that the legal authorities in Indonesia had the right to deal with ad't as

they saw fit, since the 1945 constitution allows the govemment to decide whether to

regulate a& law or not, based on the At- Perdibao (Rules of Amendment) in

Chapter Two, which state in part: "Any state body and rule will continue to be in effect

as long as they are not changed according to the constitution." According to Hazairin,

though, the constitution did not gant the power to change religious law, no matter what

the belief, except when the religion went agaitist the Pancasda. Chapter 29 of the

constitution-- 'The State guarantees the fieedomof every citizen to hold hidher own

religion and to practice it"- made provision for religious protection. The constitution of

- - '" On the nlationship betwcen law and the authority, Ter Ham, Ad* Law iP hdmestsia. trans. E. Adamson Hoebel and A. Arthur Schiller (New York: Institutc of Pacifîc Relations, 1948), 235. 1945 was a major aüy therefore in putting Islamic iaw into effect, at lest fkom the perspective of ~uslims."'

151 Sec the text of the Indonesian Constitution of 1945 in John Sujadi Hartanto, cd., Mernabamr* UZD1945P4 GBm1993-1998Wmkat (Surabaya: Indah, n.d.), 26. CHAPTER THREE

HAZAIRIN ON SPECIFIC ISSUES

In chapter two we surveyed some of Hamirin's legal notions, especidy those related to his proposal of a bilateral system of family law for Indonesia. The present chapter attempts to elucidate his thought on certain specific issues, by considering how this system would have been applied in the area of inheritance. We will look at three topics in particular, i.e., 'agabtl (agnatic relatives) orphaned children (substitute heirç) and kali?' (one who dies without sons andior father). In addressing these issues Hazairin sought to constnict a cornparison of Islamic law and adet law in order to critique both systems as practiced in the Indonesia of the 1950s. He drew on principles familiar to all

Indonesians in urging a new understanding of the ~ur'h.'Thus he constnied the concept of 'apba in the Qur'in as referring to heirs, so as to introduce changes to

Islamic and a& law, especiaiiy with regard to dateral pattern of iiiheritance. He anaiyzed the rights of orphaned childm (substitute heirs) in support of adat law, and here tried to refomi Islamic law by refhing the Su- concept to bring it in line with

Indonesian practice. He also re-examined the issue of kalàla with a view to reforming

Islamic law. These reforms were aimed at achieving greater balance and gender equality in the inheritance system in particular and in property rights in generai. In fact, he held that it is a combination of the Qur'b and Indonesian practice that ought to be followed by Indonesian Muslims.

I Bowcn, "Qur'-b, Justice, Gendcr : Internai Debates in Indonesian Ishmic JunSpn~dtncc," UIstozy ofRdgrom3 8/l (1 998): 73. A. Hazairin on Inheritance Issues and Responses

1. On Inheritance Issues

The points that Hazairin makes with respect to a "bilateral system" in inheritance

are not very fin fiom the classical Sunni interpretation, except on certain issues. The

main difference lies in the division of the group of legal hein. Sunni Islamic law aiiows

for three groups2: zaw al-fimifiavif(the heirs who have a fiactional share), 'a,pba4(those

who are in the male Line) and zaw t~!-mfir'n;nj(those who are relatives). Hazairin's

Accorduig to Hazairin, 'qwba and zaw al-cv~Cmwere infîuenccd by patrilined notions. Sincc Arab society upheld the bond of 'wabrma or 'zpba - dcscent through malt links &om a common ancestor, it is easy to understand why the Islamic inhcritance system tcficcts the Psab social system. In kecping with the uniiateraf social systcm in Indoncsia, the Batak wiii takc 'waba (de agnatics) fiom the male sidt because their systcm is patriarchai, while the Mhangkabau wiii takc 'waba fiom the femalc (finiale agnatics) side, for their system is matriarchal. Hazairin, HcodrnkK-m~ Huhrm Idazlf (Jakarta: Tintamas, 1976), 14.

Zaw al-finu7dcnotes the hcirs whose sblac is dctcmiined by the Qur'àn or &IO%&. This catcgory includes the fathcr, mothcr, husbanà, wife, daughtns, gra~âdaughters(firom sons), sistcrs, and haSsisters of the same father, half-sistcrs znid brothers of the samc mothcr, grancimotber and grandfather. On the division of the shares ste Muhammad 'Ali Ai-SFibÜtii, a/- Mswi9nTen'rb fi d-Sbm~'a&ai-1S/aéuwah 6 Qau' al-mm we al-smaa (Cairo: Dir al-wadith, 1968), 47-62 and 93-1 12. Sec also Ahmad Azhar Basyir, Hukrna Wms &Iam (Yogyakarta: Univenit as Islam indonesia, 1990), 29-43.

'4&3indicates the male agnatic hcirs of the dcocased. The '&ab8 wiU inherit the balance of the share bcqucathed to zew al-îûr@ if any. David S. Powcrs, "The Formation of Tht Islamic Law of Inhcritancc" (PhD. &S., Princaonc University, 1979), 12-3. '&&a itscif is divided into the types which aii takcn fiom male side: 'eaba bi &-na& '&aba bi ai-ghayr, 'Agaba ma 'a a/-&ap. The first is automatic agnatic hcirs, inciuding sons, grandsons hmsons, brothcrs or uncle. The second is agnatic hein causcd by other agnatic heb. For example, daughtm cm bccome agnatic heirs if thcrc arc sons, and ganddaughtm cm be agnatic if th- are grandsons. Finally, agnatic heirs go togethcr with other agnatic heirs; for example, sistcrs' fathers becomc agnat ic heirs togct her with daughtcrs. See Al-Sâbürii, al-Mawxth iF dShd'a, 63-87.Hazairin, HeadakKkznma Hukrnzt 1SIda~,14. An interesthg subctass of agnates is that of the sons. The sons art not stnctly Qut-&c hein, but thcy are a spccial agnate that cannot be excluded by other heirs of any class. Rathcr, sons exclude agnates or otha excludable hcirs. Hammüda 'Abd al 'AG, neFdy Structm in Mdm (Lagos: Islamic Publications BureauJ 982), 261.

Zaw Ir-&dnI arc relatives not includcd in awai tir$ and '@4 in Engiish rcndered as "uterine heh or distant kindrcd." The existence of this class of htirs stiil disputed. Some ' d'a' refuse theh entitlcment to inheritance. N. J. Coulson, Sucxcssion &I the Mucfim FamYy (Cambridge: Cambridge University Press, 1971). 30-1; Basyir, Hukrrm W- Isl- 5 1-2. division on the other hand coasists of zaw al-*i6 zaw dqatabZiJ and msw&

(substitute hein)? By contrast, Shi7 law recognizes only two divisions: zaw al-fit1-6-Q

and zaw d-~mabit.Hazairin argued that the Shi? inherit ance system is closer to the

originel bilateral ïnheritance system intended by the Qur'in than the Sunni venion.1°

The heim of zaw al-firnr-0: according to Hazairin, arc direct heirs whose shares are divide according to the Qur'hand unchangcd. They arc five only -- daughter alonc, father, mothcr, brother and sister. This division is based on the Qur'h IV: 11, 12 and 176. Other heirs mentioned in the Qur'h arc not included in the zaw al-î%m$since their sharcs, Haairia affi.ms, stiu change in certain circumstances. Hamirin, NbKcwmSm BiIaterlMmrput al-Qrrr'an dm Ha&t.& (Jakarta: Tintamas, 1982), 37-9. See also Damrah Khair, Hukum Kewan'sm Idm di Iildonesia: SuatuKgtim Ped&m Udzainio (Bandar Lampung: BPPM IAIN Raden intan, 199S), 30-1.

' Zaw algarabit arc dircct hcirs, whose shac or the proportion of the share is changcabic. Refegto the Qur'in N:1 1,12,33, and 176, Hazairin mentions that they arc sons, daughters togtthcr with sons, father (not in kgltale case), brothers and sistcrs with their chiidrm, grandfather and grandmothcr. They will rcceive their &are afkr the zaw al-- allocation, if thcm is stili any pqCtty remaining. Hazairin, Wukum Kewmsau Biletend Meau~rt al-Qw 'm dmHa&&%, 26-9 and 35-6. * Mawaarc substitute heirs, who "fYi the shoes" that fonn links to the deceascd, for example, orphancd children whose fathcr or mother died before the dcceased. Based on his own intexpretation of the Qur'h N: 11, 33 and 176, Hazairin divideci this category into three - orphancd chiidrcn (sons, daughttrs or both), brothcr and sister, and grandfatha and grandmothcr. Hazahin, Hukrnn Kewmsm Bli&ndlMenrnut &Qllr8aa dm Uadr'ré,31-3.

9 Hazairin's division is iafluenced by the Indonesian social system, as he affirms that "this division bcgins fkom the question whether or not the Qu''inrccognizcs the bilateral system, which accords with Indonesia." Hazairin, Hukrna Kcw~~sanBiIatd Miirnut a/-Qrtr8aadao Ha&%,18.

'O Haziirin, Hukrrm Kewanssail BiIatwal Mmut cl-Qm'm dm Z&Ui, 17-8. Anwar Hajono, "Hukum Kcwarisan Bilateral Menurut abQufan: Korncnt ar Singkat Atas Teari Prof H-," in P~mbabdvuanHi Mam âi' &donma (Jakarta: Universitas indoncsia, 1982), 63. Some other scholars appcar to agme with this point, For example Powm has made a dctermined assadt on the superimposition theory. Although he is not concerned with Shi? law, he argues that the Qin'anic iegislation on inhcritance can be interpntcd as a more or las complete system by itself David S Power, Studies mdh Qtd"dCld&iadrb: the F~lptationof the ISIamrè Law of ~en'tmcc(Berkeley and Los Angeles: 1986), 88, 106, 212. Meanwhiic, Coulson remarks that predictably of course, the Shi'ïs have claimed that th& law is closer to the Qur'ân, and a more faithful reflection of its essential spirit than the Simni. N. J. Coulson, Sucr:essioa in the Mmh FdllUIy~134. a. '&ab&

In Sunni Islamic Iaw, afkr certain shares have been diotted to the za w al-finufinut$the

remainder of the estate is bequeathed to the agnatic relatives through the males or

'apba,who take priority over uterine relatives of the female side."

There is the issue nevertheless of whether or not the 'ayaba is a Qur'ànic de. It

would seem that Hazairin rejected the concept of c~sa&~as the classical 'ulama7 had conceived it. According to him the concept of 'agaba is not Qur'ànic; it evolved âom the tradition of the '@a (group, clan) in Arab society, which applied to the male line.

The '@a was similar to the "clan" or marga of the Batak, who restricted inherïtance to the male line, or the "clan" or suku (tribe) of the Minangkabau, who privileged the femde sside. That is to Say, the 'tyaba provides for the distribution of property through one side of the lineage: in the case of the patrüineal system, on the male side oniy, and in the case of the matrilincal system, on the female side oniy.

Hazairin maintains that these systems work against the spirit of the Qur'h, since the Qur'Zn itself does not employ ' z@a in the maMer formulated by âqh or Islamic law.

Even though the word '@a or '.ah is mentioned in the Qur5 several times,12 neither word is used in the context of a family or inheritance system. Hence, according

" Ncverthcless, Hazairin also noticcd the fact that Shi7 Islamic law does not favor agnatic ovcr utcrine relatives. According to him, both, Sunnis and ShiG are correct, for their appach fits with theu respective society's ne&. Hazairin, Hukrnn BaBl di hdonesia Pjakarta: Bdan Bint ang, 195 1), 13-5. l2 The worâs '@a or 'qaba occur four tïmcs in the Qur'b;once in Q. W.8-9 and Q. W:14 (Yusuf s story). Hm 'qsh meam "relatives." In Q. XXTV: 11, thc other had, 'q&a meam "group," while again in Q. XXWI: 76 it means "a group of pcoplc." to Hazairin, the Qur'h does not contain the concept '~ahas defined in classicai

inheritance law.13

The entitIement of the 'eaba in Sunni inheritance law is derived, therefore, not

fiom the Qur'hbut fiom the unn na.'^ The Qur'Zn does not explicitly define the

inheritance right of the '~ba.This class was included in inheritance law on the basis of the doctrine of consensus. '*

The 'agaba includes ail relatives who are related to the deceased exclusively through

links with the male line. Their shares are not apportioned as set fiactiond6 Powers

notes that this class of heirs falls into five categories: the sons and his descendants

downwards; the father and his ascendants upwards; the descendants of the father (the

brothers of the deceased and their issue); the descendants of the paternal grandfather

(the deceased's uncles, and cousins and their issue); and the line of the descendants of

the great patemal grandfather and higher grandfathers in ascending order (the

deceased's great uncles and their issue). "

The &adththat fonn the basis of this doctrine for classical 'dam2' include those

of Ibn 'Abbàs and Jabir in particda.. The former is recorded as having said "al-.qqual-

fara'ib biabh%i fdbaqîiya f2uwa hwiira/*ulUl &&& " (the shares are for the

13 Saj uti Thalib, Hukum Kewm'sau Islam di lirdones's (Jakarta: Bina Aksara, l984), 59-63.

" Richard Kimbcr, "The QurP-ibicLaw of Mcritancc," W'c Law and Society 513 (1998): 291.

1s Powcrs, "The Formation of The Isiamic Law of Inhetitarice," 12.

16 For example, sons do not have a prtdetcnnintd fiact ion of the inherit ance.

" Powers, "The Formation of the Islamic Law of Inherit mce," 12-3. heirs, and the rest are prefemd for men).'* Jabv on the other hand reports on the

Prophet's decision regarding Sa'd's case thus:

The wife of Sa'ad b. al-Rabi' came to the prophet with her two daughters and said: "O Prophet, these are the daughtas of Sa'd b. al-Rabi'. Their father died a martyr's death beside you in battle. But their uncle has takm Sa'd's estate and they cannot marry unless they have property." After this the verse of inheritance was revealed and the Prophet sent to the unde and said to him: "give the two daughters of Sa'd two-thirds of the estate, give their mother one-eighth and keep the remainder yourseif "19

These two &a&rts were taken as the foimdation for the doctrine of 'qababy Sd muj&dS. Hazairin was convinced, however that they reflected the influence of the patrilineai syst em.

Hazairin asserts that the Qur'ànic inhentance verses, especially verses TV: 11, 12, and 176, do not recognize the concspt of '@m. in verse 111, for example, while the identification of sons as heirs is clearly made, there is nothing said of their position as

'waba as defined by classical 'ulam'o'. This aiiows Hazairin to detect a bilateral tendency in the Qur'àn.

In brief, Hazairin concedes that the conditions which persuaded classical Sunni mujaaiak to agree by consensus on the 'qaba were time bound and refiected a situation where portions were changeable and uncertain. Thus the portion dotted to sons, which is not clearly spelled out in the Qur'b, was comprehended on the basis of &ad&. The

&dths were in tum interpreted accordmg to the social and fdysystem of Arab

" This vmion of the &iïtb is fomd in M@ammad ibn Ismi'ïi al-Bukhàn, Seal-Bukbkii vol. 2 (Delhi: 'MW ai-Magabi, 1938), 997. l9 This version of the hophet's decision appears in M~ammadibn SUra al-Tirmidiii, Smm d- Tinru'~(Bcinit:Dir al- Füa, 1983)' 285. society, the patrilineal nature of which determined this interpret ation. Rather, Hazairin

classified the heirs whose shares were so uncertain as the ~rwal-aroaol. This meant that

the heirs do not consume the remainder of the estate, but must divide it with other hein

that are still eiigible. Nor would this category block other heirs, because they are not

immediate hein, like the zaw al-finufinu@!This reflected Hazairin's conviction that there is

absolutely no concept of 'agaba in the ~ur'in?~

It was Hazairin's contention that the institution of "'aba was inappropriate for

Indonesian society. For if it were appiied therein it would Iead to even greater abuses.

For the Bat& the '.ah would be drawn fiom the agnatic male line; for the

Minangkabau, they would corne from the uteriae female he; whereas for the lavanese,

there could be no 'qabaat d,since the Javanese do not show preference to any single

line of descent.

b. Orphaned Children as Substitute Hein

Another issue that concemed Hazaüh was that of orphaaed children as heirs.

Orphaned children, according to Hazairin, ought to inherit according to the substitute system or "sistem pen,ggaatiaa,"2' even though in traditional Sunni law orphaned children are cornmonly dismissed as ineligible. The children of predeceased sons are thus excluded from a share of their deceased graudfather's estate by the presence of other sons of the latter stiil surviving. If the predeceased son lefi only female (orphaned)

2' "Orphaned children" =fers to grandchiidnn with a parental link with the deceascd who died previously. In other words, theh mother or fathn dicd beforc the grandfatber dici. According to Hazairin, the orphaned childrcn of both sons and daughtcrs have the right to inbcrit. chilâren, they were additionally subject to exclusion by the prescnce of two or more

daughters of the deceased. Furthermore, in some schools of traditional Sunni law, the

oxphaned chiidren of predeceased daughters wm grouped into the uiw al-a&En

category and thmby excludedn In Shafici law espccially, the orphaned children of

daughters are excluded by the presence of sons of predeceased sons.

Hazairin furthemore observed that ail social systems basicaily recognize the

"sistem penggantim" (substitute system) which may be patrilineal, matdineal or

bilaterai. Even thougb the gender preferences are obvious in a unilateral system (male

prefernce in the patriiineal and fernale preference in the matriheai), the transmission

in al1 tluee systems is drawn in one vertical line, upward or downward. Hence, the

children of predeceased sons or daughters filled their parents' shoes in cases of

inheritmce. Hazairin questioned why Islamic inheritance law does not aiiow for this. He

championed the position of orphaned children as substitute hein in Islamic inherit ance

law by claiming that the traditional interpretation of the inheritance verses had been innuenceci by patriîineal bis. " Reacting to this traditionai undezstmding, and especially the Sh-Whejection of

the rights of the orphaned children of daughters, Hazairin concluded that both the

orphaned children of sons and of daughters are eligible hein whenever their parents are predeceased. This is why he named the category "ab.& waris p&pmt>cZ'(substitute

" In Maliki Law, "distant kindred" arc cxcludcd by the state tttasiay. which figures as an hcir in the absence of male agnates aud the Qur'-dc blood kirs. in Hanafi Law "distant kindred" are excluded by the prcsence of any ZBW &-fin.or any agnatic hein ( 'wba). Lucy Craroil, "Orphancd Childrea in tlamic Law of Succession: Refom and Islamization in Pakistan," Id'c Law aud Society 5/3 (1998): 410. For more explmation on substitute heirs sec for example, Coulson, Succ~ssiau& tbc1KmIIim Fdy,52-64. heirs). This concept is, according to Khair, a result of Hazairin's original ijtibd in

analyzing the Qia'anic verses on inheritance, especially IV: 33?' This verse reads, in

part, "wa fi- ja '&Z mawaya mimi tan& al-wacidaiu' wa al-aqrabùb we-

da&a 'aqad.~~~~mànukran fa 'atairm nql'bahm" (To [benefit] everyone, we have

appointed shares and heirs to property lefi by parents and relatives to those, aiso, to

whom your right was pledged.. .). Hazairin interpreted this verse by constructing the

word Ilikulli'n as üfirIaiu'n and je 'alaaasja 'ala Alla. The sentence becomes " we lifiugain

jb 'ah A&bu mawaüya m-lll~~itaraka al-wàiVdaiu' wa akqrabua WB-d''&a 'aqadat

ail&mkum fa'atdlon nqBdino"(To someone AUah had appointed successors for the

shares that the parents and the close relatives left). Thus, the fa 'il (hein) hm are the

wallida (parents; father and mother) and aqrabzïn (close relatives). He then translated

the mawaya as blood relatives. Accordingly the mawaya (substitutes or successors)

are the children and so on down the lineage, grandfathers and grandmother and so on up

the iineage) and brothers or sisters2'

Hazairin thus envisioned the kinds of eligible (substitute) heirs, who in

traditional Sunni law, are excluded fiom inheritmce under certain circumstances. These

three are the orphaned chüdren of daughtcts (made just as eligible as those of sons),

grandparents of mothers (made just as eligible as those of fathers), and brothers or

23 Hazairin, H.Kewmsan BIIaterd Memuut al-Qrn'au dm Hadith, 34.

Ha2airi.n. Huhm> Kewansan Bilateal Mm& Il-Qur'm dm Hadith, 31-3. Sec also Al-Yasa Abu Bakar, "Aldi Waris Scpcrtslian Darah: Kajian Pcrbandingan Tcrhadap Penalaran Hazairin dan Pcnalarm Fiqh Mazhab" (Ph.D diss., XAIN Sunui Kalijaga, Yogyakarta, 1989), 108-15. sisters. In sum, Hazairin concluded that the substitute hein that he proposed are nothing

more nor less than the Qur'k's provision.

c. KalaIa

Another indication of Haairin's contribution may be seen in his treatment of the

concept of kdZIaMIn addressing the issue," Hazairin utilized a semantic approach and

interpreted the appropriate verses as a unity, avoiding patrilineal bias. Hence he looked

at verses IV: 12 and 176 on kala/a and connected them with IV: 11 and 33. He

interpreted one verse as the complement of the other, so that according to him, the verse

N: 12 introduced kalala, IV: 176 defined it, and W. 11 and 33 elaborated on the concept.

Hazairin sought to interpret kaliZa according to the Qin'& IV: 176. The verse reads: " Y~lafrLnakaqui A11a6u yuffr'krrm O al-kd'afiin imru'un halaka Iaiysa I'u

walad wa làbu ukotim falàhanzsfu mi taraka"(They ask thee for a legal decision. Say:

AUah directs (thus) about those who ieave no descendants or (ascendants) as heirs. If it is a man that dies, leaving a sister but no chiid she shaii have half the inherit ance). In approaching the word WUin this verse, Hazairin interprets it literally and takes it as denoting a child. The Qur'in N:1 1 moreover uses the plural fonn of walid Le., awlacl meaning children, which could include sons, daughters or both. Hazairin associates this

26 Litcraiiy kala8 means wcarincss or tircdncss. Ln relation to inheritance, Musüm scholars dcfined it as a dectased person who lcaves ncithcr dad(childrcn) nor waIlid (fathtt and grandfather). Howcvcr this dennit ion is not agmcd upon it yct, for according to Powers, kd'ais a rnystcrious word. David S. Powcr, "The Islamic Inhmtance systcm," 1SI'c Law abd Society 5 (1998), 285.

27 The word kalala appears in the Qur'àn twicc, once in IV: 12 and again in IV: 176. But the latter has been refened to more than the former. definition to the meaning of mawa in the Qur'in W: 33 and concludes that the

meaning of walad cm be extended to mean more than chîidren and can even include

descendants in general. According to Hazairin, in the bilateral system of the Qin'&,

descendant means any chüd, whether fbm the male or the femak side. Thus the

dennition of a kaliira, according to Hazairin, is a deceased person who leaves no wsled

(descendants) either on the male or female

This definition contraâicted the defhition mived at by classical 'dama'. These

latter had defined the kala' as the deceased who leaves neither sons nor a father. If he

dies without leaving any sons but leaves a fathcr, he is not kd&429 since in these

ckcumstances according to Simni law, the presence of a father bloch other heim, such

as brothers and sisters. Consequently, brothers and sisters wiii not inherit. Hezairin

maintains that actually, accorâing to the verse, the deceased in the state of kalale may

still have a father, and that brothers and sisters thezefore have a right to the share

determined in the verse. Hazairin insists on this definition and considers di brothers,

sistm and other hein to be eligibie, even when thm is a father. Again, Hazairin

concludes that the classicd 'ulmiS interpretation of the kalaa as a deceased person who leaves neither sons nor father was the result of the patrilineal bias of Arab society.

Since tbere was no certain dennition of kal'' the social prejudices of the Arabs must have infiuenced the 'dam53 interpret et ion.

Powcrs elucidatcs the scnirmtic appmach of classical ' dima' to defîning tbc word kalaIletan in both IV: 12 and N: 176. For more analysis sce David S. Powers The Fmatl'aa of t&e Idac UW0fB~1'tdtl- 96-9. Syarifuddin echoes Hazairin's opinion and remaria that Hazairin's concept of a

bilateral system cornes through clearly in this case. Therefore, in the case of kala/'

Syarifiddin maintains that a brother or sister has the right to inherit the estate of the

deceased even if the deceased has a father or mother still surviving. Besides verses IV:

11, 12 and 176, Syasifuddin relies also on IV: 7; "1I al-n~aIIin&rm min mg taraka al-

waïda;ni wa d-aqrabrto wa ü al-nisalinqôim & mi taraka al-wrzdid'"(From what

is left by parents and those nearest related there is a share for men and a share for

women)?

In support of this notion, Kimber notes that the na1 problem of &d'aLies in verse

IV 12: " WB-~&&B rajulun fiatu kala/atan aw imrs 'atm wa ls-66 &un aw atm"

(if the man or woman whose inberitance is in question has left neither descendants or

ascendants but has left a brother or a sister). This illustrates the meaning of the

syntactical fimction of kalaIataa. Kimber then adds that the early exegetes did not how for certain what kalaatm meaot. They wm unsure of whether kala/' had different meanings. However, it is clear that behind the linguistic disagreement there was a solid legal consensus that the case referred to is that of a man or woman who dies leaving neither walad (descendants) nor wald (ascendants). The problem for the exegetes was how to reconcile their linguistic analysis of kdaIatm with what they already lmew was the law." Indeed, the meaning of kalala is complicated and tmclear as given in the

Qur'an. 32

The three issues discussed above. according to Hazairin, had been interpreted by the

classical ' ui'i'in the light of a patrilineal bias. In order to do so, however, they had to

reson t O nasaka (abrogation) and mtllfsüka (abrogated) in regard t O the inherit ance

verses especially. Indeed, theu belief that the bequest verses (verses on the ww/ya or

, : 180-2 and 240) were abrogated by the inheritance verses (IV: 11-2 and 176)

determined their interpretation of the applicable texts. Accordingly, those with the right

to receive both inheritance and weiya are excluded hminheritance whenever they

receive the w.iya For Haziiirin this was not correct. Instead, his bilateral system

restored the effect of giving it equal status to inheritance. Hazairin's argument is based

on a significant departure fiom the interpretation of the Qur'in in that he rejects

abrogation in this case?'

The Qur'àn II: 180 reads, 'Tt is prescribed when death approaches any of you, if he

leave any goods, that he malces bequest to parents and next of kin, according to reasonable usage. This is due fiam the God-fearing," while the Qur'àn II: 240 reads,

"Those of you who die and leave widows should bequeath for their widows a year's maintenance and residence; but if they [the widows] leave [the residence], there is no blame on you for what they do with themselves, provided it is reasonable."

3 1 Richard Kimbcr, "The Qur'aGc Law of Inhait anct," Idamie Law aod Society 5/3 (1 988), 295-6.

32 David S. Power, "The Islamic Mierit ancc System," tsl~clu'cLaw md Society 93(I998), 285. Rather, the word k;al'a was one of the thrce terms which Umar wishcd that the Prophet had defkd in his lifetimc, the 0thtwo king il.br'IZ4 and n%(usury). 'Abdullah YÜsuf 'Ali, The MeBnULQ of the Holy Qrrr'h (Brcntwood: Amana Corporation, 1994), 187, note 520. From these verses Hazairin argued in favor of the right to a bequest on the part of

even those entitled to inherit. Thus, he insisted that parents, children, brothers and

sisters (referring to the Qin% II: 180) and wives (depending on the Qur'b II: 240) have

the right to receive bequests totaling a third of the e~tate.)~He explains the phrase bi al-

ma 'Sm both verses as referring to showing reasonable kindness to siwivors. Hazairin

furthemore proposed that applying this rule ensured that wives not be neglected either

moraliy or economically, and that parents in their old age and children's health and

education be provided for in the future.3s In sum, Hazairin clearly prefers the paralle1 operation of inheritance and bequest in property matters.

-ber agrees with Hazfuin that the verses on bequest are not abrogated by the inheritance verses. Nevertheless, he cites a different reason in insisting that the bequest and the inheritance verses are compatible. He points out that there is no reason to believe that the former came into existence before the latter, or indeed that there was any diachronie relationship between them at ali. The fact is that the bequest and inheritance verses are not directly concemed with the same thirig. The inheritance verses do indeed legislate primarily for inheritance, but the bequest verses do not. The Qur'b

II: 180 mentions the duty of believers to make bequests to their parents and other close relatives, but it does so only as the introduction to a short periscope in the Qur'in II:

180-2. The Qin'& II: 240, on the other hand stipulates that widows, especially cWdless widows, have the right to remain in the marital home for a reasonable period afier their

- -- 33 Hazairin, Huhmi Kewan'san Bilai& Mènurut al-Qur8àndm Hadith, 57-8.

" Bequcst or wrpiys in Islamic Law cm only cxt end to a third of the est ate, at most . '' WUr, HihmKewan'sm Wàm dihdomsi'8,7-8. loss, or to leave if they wish. This verse, Kimber adds, deals with divorce and occurs

near the end of a large body of legisfation where the focus is on the residual rights and

obligations of both parties to the divorce once it has taken place. This is a somewhat

separate issue nom inheritance, and the Qur'in II: 240 could easily be taken as giving

the widow an entitlement in addition to her rights of inheritsnce under the Qur'h IV:

12. Either way, the two verses, both the verses of bequest and the verses of inheritance,

are complementing and are neither in conflict nor abrogated, accorâing to ~imber.~~

2. Responses

As bas already been pointed out, Hazairiu did not have a formal Islamic educational

background. This being the case. there was criticism of bis stance as an Islamic

refonnist and of certain details of his proposed legai reform. Some of the most vocal critics opposing his idea wmToha Yahya Omar and Mahmud Yunus. They insisted on preserving the traditional tenets and usages of inheritance des. Their most pointed responses however were directed at the bilateral system and the use of modem science in interpreting the Qur'àn and the ~adkhthat Hazairin proposed. Yunus openly criticized Hazairin for deviating fkom the accepted conventions of Islamic inheritance law. Omar, for his part, expressed doubts about Hazairin's competency and his lack of qualifications fitting him for Islamic reform in view of his educational backgro~nd.~'

-- 36 Kimber, "the Qufanic Law of Inhtritance," 303-4.

37 According to Omar, to interprct thc Qur'in and &ad& one must bc qualifiecl in rcligious disciplines like ugul aMq& Arabic, ?lm ai-Qrrr'ài (tafsq, 'I'hmzqtal@ al-badili or 'd2n d- &a&&. Yunus accused Hazairin of not mastering these discipiines, and thus of having no cornpetence to int~prttthe Qd'M as he did. Thalib, SeHukrnn,2-5. According to Omar, Haairin's conclusion was applicable ta Bdat law, but not Islamic

ia~?~

At a national semina. on inheritance, held in Jakarta in 1963, Omar and Yunus

debated Hazairin. Omar maintained that it is true that '+ah is not based on the Qur'Zn

but on the Nevertheless, this concept does not contradict the Qur'k. He

adduced as evidence two &adTths, one fiom Ibn 'Abbis and the other desling with the

decision of the Prophet regarding Sacci, as mentioned above. Omar concluded that ' @a

is authenticaily part of the Islamic inberit ance system?

Hazairin maintains that interpreting these &xEth on the basis of '49aba is not

scientifically valid. The &di% of Ibn 'Abbk, which contains the prhase "ad'rajucin

dbakdn'a"is not in line with what the Qur'h intends, thus depriving it of any legal

force. As for the decision of the Prophet in Sa'd's case, Hazairin points out that it

involves a case which happened at that theonly. What was received by Sa'd's brother was only a tu'ma (gift) present ed at the discretion of the Prophet. He was not entitled to anything nom Sa'd's estate, the remainder still belonging to Sa'd's daughters'."

Char and Yunus also debated Hazairia's intapretation of mewrT%(substitute heirs) in the Qur'En N: 33. According to Omar, the term "mawaO' in the verse does not mean substitute heirs in the way Hazairin saw it, but rather 'q& This definition was supported by the hadi% of AbÜ Hmaira: "mg ad5 bi pl-rndmidba mio &ihim

Thalib, SRmiDarRilkuq 8.

39 Thalib, SdarH- 10. "Thdib, SemiwHuhrm, 10. daya 'ao fi 'aZ walr'yuhü fal- WCalahü"" (1 am closer to the believer than any among

you. So whoever dies and leaves some estate, the estate is for the hein of 'apba...). The

word al- 'qaba hm, according to Omar, is affectcd by the general meariing (mz#md) of

mawa which might mem master, slave and Therefore this &&th shows that

mewaG in the Qur'5n IV: 33 meant 'qaba. Furthexmore, Omar ad&, if the semantic

approach is used, the fa'il(the subject (heirs)) refns to everyone (kullin)not just parents (al-walida wa al-aqrab&), as Hazairin himself pointed out ."

Like Omar, Yunus rejected Hazairin's interpretation of the Qur'k N: 33,

especially regarding the term mawali: The tenn Mswa according to Yunus, has many

rneanings such as masters, slaves, neighbors, chiidren, and cousins. However, it is

generaliy agreed that the term mawZmeans children of the deceased, as *aba. Yunus

cited various some rnufclsshib (exegetes), in support of his interpretation, for example

Ibn ICatEÙw and tha authors of al-~màk'' Yunus argued that although the mufassi111a3

differently interpreted bbnzawàli;"they concluded that the word denoted the direct heirs-

not substitute heirs, as Hazairin clairned. This definition reinforced by the Qur'in XIX:

5-6 and IV: 7. Yunus was convinced that mawalirefers to the father, mother and nearest

hein as direct heirs, not substitute heirs. Substitute heirs, he argue& do not exist in the

" This version of this 4adfhis fond iii Muhammad ibn IsmiPl al-Bukhan, Sa@ ~-B&M: 998-9.

" Abu Bakar, AM Wms Septvtslim Darab, 1 16-7.

Ibn Katbk d-Dimsh?qI Tdfjrial-Qtd&~ vol. 1 (BcirÜt: D5r al-Fik, 1994). 605-7.

4s Rida, for example, says that this vnsc is determincd by the baciFb that the male's sharc is twict that of the fernale. This tends to conhnn Yunus' conclusion. Mu&mmad MdRida, Tds~sl-Manai,vol. 5 (Cairo: May'ah al-Mipiyyah al-'Amma li &Kitab, 1973), 52-55. Qu'Zn. However, substitute hein can receive part of the share of the estate of the

deceased, through a testament or will.

Hazairin responded to both Omar's and Yunus' interpretation of "mewBO' as '@w&

questioning their interpretation of the &affit&of AbÜ Humira. Again he maintained that

this badih was colored by the patrilineal pattern of &ab society and that it was

expressed before the inheritance verses wmsent dom. He agreed with the opinion of the term mawa%as stiil being generai (mujma and needing more explanation. That explanation, according to Hazairin, can be found in the Qia'k IV: 33, which explains the tenn rnaw~?~

Hazairin challenged Yunus' interpretation of the Qur'h IV: 33 by arguing tbat it was inapplicable in cases whm the direct hein died before the deceased and yet left some children behind. He was certain that his own interpretation was in keeping with the 'bbiiaterai system" which the Qur'in and the Pmphet aimed at establishing. He was convinced furthermore that the use of modem science can Myand responsibly accommodate the message of the Qur'iin because lmowledge and science bridge the

Prophet's time with subsequent penods.47 Hazairin insisted that Yunus' idea of extending test amentary bequest to indirect hein went against the bilateral system intended by the Qur'ân.

On the problem of kdaa raised by Hazairin, Omar maintained that the deceased may leave neither walad (descendants) nor wald (ascendants) to qualifl as such. The former interpretation is based on the mwüq (statsment) of the oiqs (the verse), while

For more analysis of Hazairin's view on the Qw'h IV: 33. sec Hazairin. Hihm Kcwarim Bilateral Menurut al-Qu'an dan Hadit& 23-9. the latta interpretation is based on the ma %@(cornmon sense) of the mg. He adds that

the latter interpretation is also supported by the Qur'àn TV: 11: 'Wi9ukrm> wa

abna'ukum E tadrrula ayyuhum aqrabu iahrm nafan" (your parents and your children

are nearest to you in benefit). Omar and Yunus were of the opinion that their views

reflected those of most Cornpanions and classical ' UlmiE 948

Given the amount of effort that Hazairin expended in trying to present a

convincing idea of refom of inheritauce laws, it would be surprishg if it tumed out that

he did not meet with at least some success. The debates failed to arrive at auy consensus

because the two sides had different approaches and paradigms.4gNonetheless Hazairin held his own in the debates, believing that his opinion needed to be sustained and continued? Moreover, in no way did his argumentation or lmowledge of Islam fd short of these two weii-quaiified scholars.

It is tnie that Hazairlli's idea of legd refonn was then not Myaccepted by other refonnists at the time he proposed it. It was in fact only later that it had a direct or inâirect impact on many individuals and institutions. The foliowing is an illustration of the impact of Hazairin's thought on institutions within the govemment and individual reformist S.

'' NIEAhmad Fadhil Lubis, "Isilamic Lcgd Literature and Subsiantive law in Indonesia," Stlndia hIamtamtka,4/ 3 (1 997), 55.

'According to Lcv, Hazairin was serious about sprcading his ideas giving speeches and participating in debatcs whenever the oppoxtunity arose. In thi way hazain had a trcmendous impact on Indonesian scholars, and espccially, the youth. Daniel S. Lev, interview by author, 13 May 1999, Montreai, tape recording, Quality Hotcl, Montreal. B. Hazairin's Impact and Contribution towards the Indonesian Legal System

Perhaps the most signïficant impact of Hazairin's reformist vision has been on his

studcnts and aiends. Many of Hamirin's students became the leading architects of 6qh

reform in the 1980s and 1990s. These include many of today's older generation of law

professors and Supreme Court justices, many of whom draw on HazaVin's arguments in

advocating current reforms. For example, Sajuti Thalib, in advocating his ~ceptioa

contrmio theory, has clearly foilowed Hazairin's tenets. He has sou@ to preserve and

elaborate Hazairin's "nccpie eltheory" and launched the "nxeptio a contrano

theory" as a continuation of his teacher's theory.

Muhammad Daud Ali likewise shows the influence of Hazairin's thought in

proposing inheritance des for Indonesian society. Aii has explained how those

responsible for drawiag up the Kompilasi Hukum Islam (Compilation of Islamic Law)

drew on history and culture in detemiining the new provision that orphaned

grandchilàren shouid inherit the share that their deceased parents would have received.

Ali maintains that the primary sources for this position are the Qur'b and Sunna, but

that in practice this position was applied fiexibly because neither the Qur'Zn nor the

&dth is, properly speaking, a law book Both are "mother booh" containing fundarnent al messages for people everywhere and for al1 tirne.

Ali ad& that what is already Gxed in the text of the Qu'in or text (q#Y al-

dalrala), such as the 2:l ratio of shares apportioned to sons and daughters set out in the

Qursaii W:11, should not be changed. But if a given case is not fixed in the Qur'h and

4emta (zanni al-Q'ra/') and there is felt to be a pressing need to interpret it in accordance with a Society's best interests, such as the right of a chilà to replace a

predeceased parent as heir to an estate or property, this should be done.

This decision also recognizes the maxim sl-'da al-m@&ama (a& can be a

(Islamic) law), allowing for example, for an inheritance system which has no basis in the

Qur'k or )a& but in the Bdat of Muslim Indonesians. Moreovet, because sdat is part

of the legal consciousness of Muslim society, it can bring clear social benefits."'

In a series of speeches delivered in the 1980s. Mmawir sjadzaliS2appemd to echo

Hazairin's ideas on the biiatciel system. He encouraged jurists to alter Indonesiau

inheritance 6qh fiom the 2:l ratio stipulated in the Qu$& to a 1:l ratio, reflecting an equd division of wealth among male and female chilchen, an arrangement more attmed to Indonesian society. His argument was similar to Hazairin's in that it emphasized the

Arab culture within which the QurYZnwas revealed and the need to adapt Iiq6 to other cultures and times. This argument was also aimed at the hypocrisy of Indonesian scholars ('ul~m8's) who, in private, acknowledged the unequal ratio to be unjust but who publicly advocated observance of the Qur'anic Basing himself on such fundamental concepts as justice (keadilan)and propriety @cradw, Sjadzali stressed that not ali the commands of the Qur'àn need to be edorced."

SI Muhammad Daud fi, "Asas-asas HuhKewarisan dalam Kompilasi Hukum Islam," MmbarHuihom 9 (1993): 1-17, as citcd in Bowen, "Qur'an, Justice and ûender," 72-3.

He was Ministcr of Religious Anairs fiom 1983-1993. He was more a politician and a diplomat than an Islamic jurist. " Bowen, QwS& "Justice and Gtnder,'' 734.

Y Mmawir Sjdzaii, Mm: Rdtm Baru Orleatru' Mua Lkpm Bangsa (Jakarta: Univenit as Indonesia, 1993), 4. Many scholars have challenged Sjadzali's ideas. Basyiry for example, claimed that

this solution to the inherit ance problem in Indonesia deviated fiom Qur'dc teaching.

He maintained that a sociological approach is not relevant, for Islam is not a mere sociai

construct but a command that cornes fiom AUah (&@ab Ma).Islam should not be

fitted to social requirements but on the contrary, must mold society." With this point of

view, Basyir opposed equally Munawir's and Hazsirin's respective sociological (socio-

anthropological) approaches to inheritance when interpreting the Qur'in and &&%.

Bowen compares Hazairin's argument regarding cultural differences with Madjid's

lata argument about historical diffaences? He says that both are sirnilar to Rahman's

c1ai.m of etemal versus specific desin the Qur'h. Although Madjid's scholarship was

clearly infiuenced by that of Rahman, according to Bowem, it may have ken shaped by

Hazairin's writings as weil. An interesthg feature of the latter's writing is the

concunence of religious historical scholarship, largely foiiowing in Hazairin's footsteps.

The proponents of each are not entirely aware of the convergence; Maâjid views the

jurist as somewhat too concerned with Islamic law, while jurists see Madjid as too little

concemed with the legal status of the scriptures. Hazairin may be cndited with laying

the legal fhmework onto which the later historical arguments developed by way of

Rahman's ideas were to be fitted.

5s Ahmad Azhar Basyir, "Rcaktualisasi. Pendekatan Sosiologis Tiddc Sdalu Rclevan," in Po~~'kReaktualisasi AjmMam (Jakaaa: Pustaka Pmjimas, 1SM), 116. " In his scholarship, Nurchoiish Madjid has examincd many of Rshman's ideas, especiaily on contcxtualization. , "Sejarah Awal Pcnyusunan dan Pembakuan Hukum islam," in Budhy Munawwar-Rahman cd., Kontekstualisasi DokrrrO Wam dal' (Jakarta: Paramaciha, 1994)' 237-250. In proposing the idea of creating a national madabab, Hazairin distinctively paved

the way for the Hasbi's 'Indonesian fi@," which later became a major phenomenon.S7

Both attempted to place their respective works within a social and histoncal context. In

tems of the textual background, however, Hasbi's approach was quite different, in that

he emphasized the role of whiie Hazairin's approach reîied much more on the

Qur'k. Haairin moreover is believed to have been the &st to caii for the establishment

a madihab with an Indonesian character, although some would dispute this. His

proposal was clearly set out in a speech given in Jakarta in 1951 :

The new ma&ab that I have named a "ma&ab nasional' (National ma&&) is not exactly proper, because the tenn 'hational" applies to all citiznis of Indonesia, while Indonesian Muslims are only part of them." The name - ma&& hdoaesia (Indonesian ma&ab) offered recently by M. Hasbi Ash-Shiddiqy, is more appropriate. '* Aithough some scholars regard Hasbi as the initiator of the ms&ab hdonesia,

nom the statemcnt above it is clear that Hazairin's proposal pmeded ~asbi's.'~

Moreover, Hazairin's ideas on the frmework of Indonesiau flqh or a national ma&ab

seem to have been more systematic than those of ~asbi?Hazairin had discovered some

of the real problems faced by Indonesian Muslims in applying llamic family Iaw. He

" For more information on Hasbi's Indonesian fi@ sce for example Yudian W. Asmin, 'Hasbi's Theory of &ti%id in the Contcxt of Indonesian Fiq.' (MAt hais, Instit ute of Islamic Studies, McGill University, Montrcal, 1993). Sec also Nurouzzamiin ash-Shiddiqiey, Fiqh ikdonesia: Peioggrqgas daa G~g&ramya(Yogyakarta: Pustaka Pelajar, 1997).

58 Hazauin, HhKekeluargaan Ndsiond (Jakarta: Tint amas, l982), 5-6. s9 Yudian Wabyudi, "Hasbi's Theory of @tib&* 1.

This may have had somcthing to do with the cducational level that cach hd attaincd. Hazairin for instance had obtained a doctorate, whereas Hasbi graduatcd only hm the pesant;rGtl, equivalent to senior High School Icvcl. Another reason is that Hazairin was an anthropologist , and had distinctive sW,both methodologicai and theoretical, to bring to the offered a way out through the bilataal system, in view of the divenity of the social

systems in the country. Finaily, he offered some clear interpret ations of the problem in

the interests of reform Lubis notes by the way that it was Hasbi who, in 1961, revived

the idea without mentioning Hazairids earlier views on creating a national ma&ab?

From the goventment itself came a cdfor reforming Islamic law (fi*). The

goveniment emphasized the importance of creating a unified legal system, in large part

to ensure greater ideological and polit ical control over social and political institutions."

But it was also responding to those Muslim reforma, including Hazairin, who called

for stricter application of Islamic law in the broader fkamework of a national madhhaib.

Implementation of the national madtrbab suggested by Hazairin has brought about

significant constitutional mendments. His contribution to the application of Islamic

law at the state level may clearly be seen in the Marriage Law No. 111974, the Islamic

Court Law of 1989, the Compilation of Islamic Law of 1991 and the fondation of

BAZIS or Badan Ami1 Zakat, Infaq dan Shadaqah (Supervisory Body of Zkkg -q and

Waqa).

The Marriage Law, decreed in 1974, shows how Haairin's idea of a bilateral system was incorporated into statute. Ariicle 41, for example, reads: "the consequences of dissolution of a marriage on account of divorce are as follows: the mother as well as the father shall continue to have the responsibility of maintainhg and educating their

study of legal institutions. Reoe R. Gadacz, "Foreword," in Towardc An Aathwpofoy of Law in Compk Society (Calgary: Western Publishtrs, 1982).

'' Lubis, ''Islamic Legai Litctatinc," 54.

62 John R Bowni, "Qur'ân, Justice Gender," 56. children ...The father shall be accountable for ail expenses relating to the maintenance

and the education needed by the children; in the case of the father king in fact unable

to discharge his responsibility a court of law may decide that the mother share the

burden of expenses refersed to."" According to Hazairin, the article stipulates bilateral

responsibility and changes the function of husband and wife. It had the effect. for

instance, of altering the patnlineal system among the Bat* just as it did the matrilineal

bias that prevailed among the Minangkabau, for whom husbands were only a

complement of the family.." The marriage law therefore sought to benefit both husband

and de.

In 1973, a year before the maniage law was implementeâ, Hazairin published a

commentary on it? Suggesting very few changes, he supported the bill. The

implementation of this bill caused him to be optimistic regarding the development of

the legal system. According to him, the bill guaranteed marriage and inheritance laws

and maintained the function of the Islamic courts.& It radicdy changed, moreover, social conditions by instituthg a bilateral system. The 'usba tradition or single referme line of descent in marriage and inheritance law was automaticaiiy transformed into a

" Sec, Marriage Counseling Bcarau, Iae hdondaa Mm>,Law (Jakarta: Department of Religion Mairs, 1988), 22.

64 Hazairin, Tinjauaa Mengenai Clndaag-mdang Pc~krPwU1anNomor 1-1974 (Jakarta: Tint mies, 1986). 18-9.

" Sec Sajuti Thalib, Hukum KekGIusrgaw hdon~~1B(Jakarta: Universitas Indoncsia, 1986), 163-7, as hc quoted fiom Hariau KAMI (KAMI daiiy), Scptemkr 18,1973. 'T halib, Hukrmr Kekeiluargam hdon~sia,163. bilateral system. Hazairin's goal was t O instit utionalize the bilat erai @mental) syst em in

family law in order to achieve a homogenous law for Indonesian ~uslim.~'

Hazairin furthemion argued that the Marrïage Law No. 111974 was a clear example

of neo-gffiZdor authentic interpret ation (t&r yang otentik).6B What he meant by t his

was that the marriage law in Indonesia had moved fkom being based officially on adat

law to allowing for Islamic provision^.^^ This new law trrmiaated sdat marriage des,

except their ceremonid components. The Marriage Law also provided a new national

law, applicable to Indonesian citizens as a whole." Those who followed Islam and other

religions were to be allowed their own laws of

Hazsirin's tireless attempts to lay the groundwork for his idea of a bilateral social

system through reform of inhentance law led to signincant improvement in the family

and property law of Indonesian society. Although some of his ideas had been anticipated

in the Madjelis Pemiusjaratan Ralgat Sementara decree of December 3, 1960, many of

Hazairin's suggestions regarding a bilateral system were clearly reflected in the

Compiiation of Islamic Law enacted in 1991. The Compilation of Islamic Law contains three books. Book 1 constitutes the Marriage Law, Book II the Inheritance Law, and

Book III the Waqf (endowment) Law. Of course Hazairin's intention was to institutionalize Islamic law, especiaUy in marriage and inheritance, and this was accomplished in this compiiation. Some elements of his thought were bcorporated into

the compilation, for example. in the case of orphaned children and their right to

inheritance, as Muhammad Daud Aii explained. Article 185 reads, ''whenever an heir

dies before the deceaseà, his place is taken by his children. lheir share may not exceed

the share of those for whom they substitute.'"

The implememt ation of the Marriage Law and the Compilation of Islamic Law has

had a further impact in that it has met the demands of women's groups and jiirists that

legal steps be taken to give women equal rights to divorce and legal res~mces.'~

Similarly, through these statutes women have achieved greater property rights both in

divorce and inherit ance.

In 1989 the government attempted to expand the jinisdiction and augment the

enforcement powers of the Islamic courts, even as this and other laws rendered the

hdonesian system more integrated and subject to state supervision. Islamic courts now

exist alongside generd courts; and the decisions of judges are subject to Indonesian

Supreme Court review. While Article 10 of the Constitution of Judicial Mairs (or

Undang-undang Pokok Kekuasaan Kehalriman No. 141 1970) had led to the

establishment and development of IsIamic courts in ~ndonesia,'~Hazairin's contribution

was in uniQing the Islamic court's cornpetence in Java, Madura and Kalimantan where

previously it had t aken a back seat to differences.

72 Departemen Agama R I., Kompiimi Hukrnn Mun (Jakarta: Departcmcn Agama RI, 1991/1992), 95.

73 BOWCU,"Qur'in, Justice Gender," 56. " S ajuti Thalib, Huhrm Kekclu~~gaandi hdonwia Bwfaku B@ Umat Islsm (Jakarta: Yayasan Pcncrbit Universitas Indonesia, 1974)' 163. In 1991 the govemment focused its attention on the z8kB (alms) system. An

institution was formed to organize its collection and that of other alms as weil. Decrees

of the Minister of Religious AfE& and Interna1 M'Nos. 29 and 47/1991 led to the

foundation of BAZIS or Badan Ami1 Zakat, Infaq dan Shadaqah (Supervisory Body of

Zhke Mq and Sadaqa) under state management." The function of this body is to govern the collection and redistribution of zeka proceeds according to the needs of

Indonesian Musrims fiom the district to the central level. The establishment of BAZIS represented an atternpt on the part of the government to redress the economic problems faced by Indonesian Muslims. Hazairin's responsibility in its foundation may have been minor, but it is no coincidence that it answered many of the concerns that he had expressed regarding the need to inst itutionalize the economic infrastructure of the

Muslim community.

Lev argues that Hazairia's ideas and suggestions regarding social change within

Indonesian society were obviously refiected in that some Islamic laws were written in response to the demands of Indonesian Muslims. The evolution of Milateral societies

(the Batak and the Minangkabau) which have changed in respect to modernization and urbanization show that Hazairin's prediction that society will change and a& law with it was an astute one. This also can be seen especially in the decisions of Islamic Courts where family law is interpreted in ways that reflect Islamic principles at the expense of adet customs. Islamic law therefm had an influence caused by social changes. And

'' Depariemen Agîuna RI., Pedam Pmbioaim Amil Zsks, Maq dm Sbadaqab (Departemen Agama RI, l992), 107-3 1. Hazairin affinned that it is only Islamic law that cm give a certainty, for when society

changes, the sdallaw also change^.'^

The govemment furthemore has tried to introduce other measures. For example, to

overcome the problem of inhexitance in Minangkabau, the authorities have, in addition

to instituting Islamic property law, introduced the concept of oiba (gift), which has

helped in the Islamization of social processes there. The confiict of the ad' and Islamic

inherit ance syst ems was resolved by the use of hba in that it allows children (sons and

daughters) to receive property fiom their father, which was not the case previously. As

Bowen notes, based on his research on contemporary Indonesian jurisprudence deeply

rooted local practice restricts the share of inheritance as Mba (gift) which is limited to

one-third of the property. This suggests that Hba is regarded as an impediment to the

Islamization of social life in coping with traditional property, for this rule may also be

explained as having been motivated by local social nom." The extent of Hazairin's

contribution in this area is unclear, but it can be said with coniidence that it was his

views that facilit ated it s introduction.

Much has been done in the legal field to redress social disparities in Indonesia.

This has led to the introduction of new elements of Islamic Iaw into the national

constitution in an effort by IsIamic jirrists and leaders, together with the-govemment, to

" Lw, inttmitw by author. n John R Bowtn, "You May Not Givc it Away: How Social Noms Shape Islamic Law in Contemporary hdoncsia Jurisprudence," ISIdrmc Law and Socicw SI3 (1 W8), 382. This policy, Bowen ad&, appcars to takc a sttp backward, because it limits, rathcr than txpands the authority of a Muslini in regard with the wealth. Bowcn, 'You May not give it ~way,"386. Compared to this policy, Haairin's bilaterai system is more advanced because it gives Muslims more authorit y over property matters. establish mqj&a with an Indonaian character. We cannot deny that Hazairin was a major force behind this trend." CONCLUSION

This study has shown that Hazairin's proposal for legal reform stemmed nom his

belief that Indonesia's legal system was mostly, if not entirely, inherited firom the Dutch

government, and that this was an anomdy that had to be rectified. This observation led

him to give his attention to Islamic law in Indonesia and its interaction with ad& law,

especially in matters of famiiy and inheritance.

Given his heavy socio-anthropological background, Hazairin's understanding of

family and inheritance systems had an undeniable influence on his perception of the

social reality of Indonesia Our anaîysis has shown that he wished to introduce greater compatibility between Islamic law and a& law in cases of inheritance, a goal that could be achieved through the assimilation of the latter into Islamic law.

Hazairin's proposals for legal nfonn depended on the use of #taadand its more or less systematic application to resolving social problems. Although he was inconsistent in some aspects of his program, his ideas were innovative and radical with respect to the conditions of his day. This discrepancy may be attributed to the fact that Hazairin's attempts at Islamic legal refonn were to some extent motivated by political considerations, since he believed that the status of hlamic iaw was threatened by an adat law which was strongly rooted in Indonesian society and which received support nom adal proponents.

Although his ideas have been criticized on account of bis own lack of formal training in the Islamic disciplines, and for deviating fiom traditional Islamic legal thought, these accusations seem unsupportcd in reality. As we have seen, Hazairin was very familiar with Islamic legai thought. Moreover, his method of interpreting the Qur'h and his approach in using modem science to analyze its text seem reasonable,

and are in keeping with the spirit of Islam which acloaowledges that the Qur'in is

approachable fkom any perspective.

Hazairin may thus be credited with having fashioned an Islarnic law with

Indonesian charactcristics. His proposal for a national madabab or an Indonesian fiqh

recogiiized the country's social divmity, even though a mified lslamic law for

Indonesian Muslims was of the utmost importance to Hazairin's Iegal refonns. Hazairin

likewise sought to institutionaiize Islamic law at the national level in order to introduce

uniformity in its application.

Hazairin's efforts were aimed at reforming ad& law and Islamic law at one and the

same time. He drew on the principles undalying aii Indonesian social systems to urge a

new understanding of the Qur'h, besides criticizing the idea that Islamic doctrine was

ha1and absolute. The reforms that he set in motion led to a more balanced, or as he wouid have put it, "bilateral" system of domestic relations and gender equality in inheritance matters in particula.and in property rights in general.

In attempting this £hion of Islamic and non-Islamic traditions, Hazairin appiied a critical method that may be said to have consisted of the following axiorns: ht,that human intellectuai construction in fiqh (or classical Islamic law) is the result of interpretation; second, that interpretations are affected by a variety of factors, including social conditions and culture; third, that t here is a direct connect ion bet ween the siirvival of certain interpretations and their promulgation as fact and the socio- anthropological concem of those in a position to control authoritative inteliectual products; fourth, that every society must therefore mvaluate inherited "howledge" in view of changed circumstances, paying particular intention to its own specific character,

and last of a,that in the case of Islamic "kmwledge" the Qur'in provides clear

guidance in this ongoing evolution in providing a message of social justice based on

human equality .

Despite the fact that his ideas were rejected by other reformists, Hazairin's legal

thought bas had a marked influence on his disciples, followers and supporters. Many

leading scholars have agreed with his ideas and several have at least foïlowed his lead in

interpreting the Qur'k. His ideas are leant weight nom the fact that he accurately

foresaw the changes that Indonesian society has had to face particularly the effects of

these changes on the fdy.This has prompted the government to implement many of

his suggestions. Moreover. Hazairin's thought is still discussed in Indonesian legal

discourse and his books have also been re-published and discussed anew. His legal

thought especialiy is studied in some depth by students of ShS'a facdties in the

Indonesia's IAIN system, which are now an important part of the legal syllabus,

especially regarding the relationship of adat law to Islamic law.

Finaliy, Hazairin's legal reform has had a significant impact on the development of the legal system in Indonesia. This is readüy apparent in the emergence of certain

Indonesian Islamic institutions for example. the Indonesian Marriage Law, the

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