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"You May Not Give It Away": How Social Norms Shape Islamic Law in Contemporary Indonesian Jurisprudence Author(s):

John R. Bowen Source: Islamic Law and Society, Vol. 5, No. 3, The Islamic Inheritance System (1998), pp. 382408 Published by: BRILL Stable URL: Accessed: 22/02/2010 03:45
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JOHN R. BOWEN (Washington University in St. Louis)

A recent Indonesian Islamic law compilation presents an apparent anomaly in restrictingthe right to give away wealth as hiba to one-thirdof an estate-whereas the trend in Indonesian law reform has been to bring Islamic law closer to local inheritancepractices. By means of a narrativeanalysis of a recent court decision, I identify a discourse of justifying the new restrictions in terms of general religious and social norms of fairness and agreement among heirs. Examination of local debates over law and propertyin two Sumatransocieties, Gayo and Minangkabau, suggests that hiba is regarded as an impediment to Islamization of social life, and as introducing elements of unfairness and discord. Thus the new rule can be explained as having been motivated by local social processes and social norms.

IN STUDIESOF LAW AND SOCIETY,an earlier focus on systems,

forums, and pluralism has given way to a new emphasis on processes, interactions, and change. The topic is no longer the lexically neat, analytically narrow idea of "legal pluralism", but the rather awkward, yet analytically brighter "mutually constitutive relations between state law and other normative orders".' And yet, although pioneered and theorized by anthropologists, the "mutually constitutive" part of this study has to date been pursued most rigorously by historians-despite the obvious epistemological disadvantages of historical labors.2 If law is to be just as "dependent" a variable as are social norms and cultural identities, then the new law-and-society studies will need to give as much attention to how judges, jurists, and lawmakers reason about the law as to how everyone else experiences it.3
1 Both phrases from successive "state of the art" formulations by Sally Engle Merry:the first from Merry, "Legal Pluralism",Law and Society Review, 22 (1988), 869-96; the second from Merry, "Anthropology, Law, and Transnational Processes," AnnualReview of Anthropology,21 (1992), 357-79. 2 Some fieldworkers have become historians precisely for this purpose; see Yale Journal of Law and Sally Merry, "Law, Culture, and CulturalAppropriation," the Humanities, 10 (1998), 101-29. 3 For what I take to be a similar point see Carol J. Greenhouse, A Moment's Notice: Time Politics Across Cultures (Ithaca, 1996), 59. In political theory, of course, a substantial literature is devoted to this question, but it tends to be just

? Brill,Leiden,1998

Islamic Law and Society 5,3



One particularly productivearea of such research,unknownto most law-and-society scholars, is the historical study of Islamic jurisprudence. Although Islamic law may appear to be an immutable, divinely given set of rules, historianshave highlightedthe interactive of relationship legal texts and social normsin the practiceof law.4With to the transmissionof property,they have examined ways in respect which power, gender, modes of production, and forms of social and continuityshapethe ways juristsandjudges interpret applyIslamic and traditions.5 legal ideas Islamic legal theory provides its own analytical frameworks for Fiqh (jurisprucapturingthe divine-yet-localquality of jurisprudence. dence) depends on multiple sciences throughwhich the judge or jurist verses of the Qur'an; may repeatedlyrevisit revelation:understanding the reliabilityof the many chains along which the words of comparing the Prophet were orally transmitted;and interpretingthe traditions based on the four greatSunnijurists.Althoughscripture providesfiqh's foundation,jurisprudencealso requiresthe use of qiyas, logical processes includingreasoningby analogy, and a relianceon the consensus of the learnedcommunity,ijmd'.Jurisprudence may requireweighalso the probable consequences of a decision for the community as a ing whole. In the absenceof compellingscriptural evidence,juristsmay cite as sources of law the public interest, maslaha mursala, and local custom,'urfor 'dda/adat.6 Approachinglaw as jurisprudential practice allows scholars from the fields of anthropology, law, or religious studiesto tracethe history,
that: theory. 4 For a sense of the empirical range of such work, consider: Sharl'at and Ambiguityin South Asian Islam, ed. KatherineP. Ewing (Berkeley, 1988); Wael B. Hallaq, "Model Shurut Works and the Dialectic of Doctrine and Practice,"Islamic Law and Society, 2 (1995), 109-34; and Brinkley Messick, The Calligraphic State: TextualDomination and History in a MuslimSociety (Berkeley, 1993). 5 For a theoretical formulation, see David S. Powers, "The Islamic Inheritance System: A Socio-Historical Approach,"in Islamic Family Law, ed. Chibli Mallat and Jane Conners(London, 1990), 11-29; for an overview of some recent changes in family law and an argumentabout how they might best be justified from within the system, see John L. Esposito, Womenin Muslim Family Law (Syracuse, 1982); and for a detailed case study, see Franz von Benda-Beckmann, Property in Social Continuity: Continuity and Change in the Maintenance of Property Relationships ThroughTime in Minangkabau,WestSumatra(The Hague, 1979). 6 See the historical analysis of legal theories in Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni usul al-fiqh (Cambridge, 1997), esp. 75-81, 83-107, 214-31. Gideon Libson examines the various ways in which early jurists incorporatedcustom into law in his article, "On the Development of Custom as a Source of Law in Islamic Law, Islamic Law and Society, 4 (1997): 131-55.



ways jurists andjudges take into account both the normativeimmediacy of sacred texts and the social importanceof legal outcomes.7This perspective also encourages studies of how ordinaryactors practice "Islamic law" in ways strongly shaped by culturalparticularitiesand local relationsof power.8 Although Indonesia has been a major site for "old-style" legal pluralismstudies-developed in partout of Dutch colonial administrative sciences-only recently have scholars turned to the "mutual constitution"of religious law, civil law, and various constructionsof "local living law" or "adat law" in different areas of the country.9In this essay, I examine the ways in which changing social norms have shaped recent laws and decisions about Islamic jurisprudence in Indonesia.My example is a 1991 rule thata gift or donation,hiba, may not exceed one-third of an estate. Though at first blush trivial, the innovationis highly unusualin the Islamicworld, and it runscounterto the general direction of Indonesianlegal innovations. I argue that its adoption can only be understood against the background of local debates about the appropriate relationshipsbetween Islamic law and otherlocal norms. To accountfor this anomaly,I first inspect the reasoninggiven in a recent courtdecision that affirmedthe new rule. I pay special attention to the narrativestrategy employed by the judges as indicative of the reasoningthat led the judges to rule as they did-and, indeed, that led
7 See, among other recent studies, David S. Powers, "Kadijustizor QadiJustice? Paternity A IslamicLawand Morocco," DisputefromFourteenth-Century In E. and Society,3 (1994), 332-66;Judith Tucker, theHouseof the Law:Gender IslamicLaw in Ottoman Syriaand Palestine(Berkeley,1998);and the essays in Islamic Legal Interpretation: Khalid Muftisand their Fatwas, ed. Muhammad

Masud , Brinkley Messick, and David S. Powers (Cambridge,MA, 1996). 8 On the interfaces of gendered power and legal transactions, see Annelies Moors, Women, Property and Islam: Palestinian Experiences, 1920-1990 (Camand bridge, 1995); and MarthaMundy,Domestic Government:Kinship, Community Polity in North Yemen (London, 1995); on cultural shapings of how law is used, see Shahla Haeri, Law of Desire: Temporary Marriage in Shi'i Iran (Syracuse, 1989); and Lawrence Rosen, "Law and Custom in the Popular Legal Culture of North Africa",Islamic Law and Society, 2 (1995), 194-208. 9 The exception is the series of works by Daniel S. Lev, spanning the period from the early 1960's to the present;see his Islamic Courts in Indonesia: A Study in the Political Bases of Legal Institutions(Berkeley, 1972). On more recent efforts to rethink religious law, see John R. Bowen, "Qur'dn, Justice, Gender: Internal Debates in Indonesian Islamic Jurisprudence," History of Religions, 38 (1998), 5278. For an historical overview of thinking and practice relating to legal pluralism in Indonesia, see Roy F. Ellen, "Social Theory, Ethnography and the Understanding of Practical Islam in South-East Asia," in Islam in South-East Asia, ed. M. B. Hooker (Leiden, 1983), 50-91.



the authors of the new legal code to include this particular provision. 10 It turns out that most of the legal argument presented in the case is directed toward justifying the legal rule by referring to social norms, rather than showing that the legal rule applies to the case at hand. I draw on this discourse of justification to consider the possibility that the new rule responds to local norms and processes rather than standing in violation of them. In support of this claim, I consider evidence from two areas in Sumatra, the Gayo highlands of Aceh province and the Minangkabau region of West Sumatra. The Puzzle: Why Has Indonesia Restricted Giving Away Wealth? Under Islamic law, a person's property is divided after death in accord with the fixed rules of division, the "science of shares" ('ilm al-fara'id). These rules guarantee the rights of heirs, whose shares are explicitly set out in the Qur'an.1IMuslims may, however, leave a bequest (wasiyya), make a gift or donation (hiba) during their lifetimes, or establish an endowment or trust (waqf) to be managed by designated persons. Each of these three mechanisms has its own attractions and limitations as a means of transmitting wealth outside the contours of the fixed rules.12 Bequests are initiated by the testator during life, but only take effect after death. The total of all bequests may not exceed one-third of the estate, nor, according to long-standing interpretations of a prophetic hadith, may they be made to heirs, unless all the heirs consent to such a bequest.13Thus, although they allow the original owner to retain control of property during his or her life, bequests have limited value for strategies of heirship that seek to circumvent the rules offartV'id. Gifts must be completed during the life of the donor, and indeed must be completed before he or she enters a terminal illness (mard al-mawt). Under a generally-accepted interpretation, one may dispose of all one's wealth to anyone through gifts. A person could, for example, give
10 For another narrative analysis of a decision-though in a very different form, time, and place, see Powers, "Kadijustiz." 11 For a detailed account of these rules, see N. J. Coulson, Succession in the Muslim Family (Cambridge, 1971); and for an account of their social import, Martha Mundy, "The Family, Inheritance, and Islam: A Re-examination of the Sociology of Fard'id Law," in Islamic Law; Social and Historical Contexts, ed. Aziz al-Azmeh (London, 1988), 1-123. 12 I do not consider trusts further here; for examples of their operation, see Aharon Layish, "The Maliki Family Waqf According to Wills and Waqfiyydt," Bulletin of the School of Oriental and African Studies, 46 (1983), 1-32, and David S. Powers, "The Maliki Family Endowment: Legal Norms and Social Practices," InternationalJournal of Middle East Studies, 25 (1993), 379-406. 13 Coulson, Succession, 213-58.



away all of an estate to one daughter or to one son, leaving other childrenand otherheirs withoutany inheritance.Giving a gift is a kind of contract,in which the donormust explicitly offer (ijdb) the property, and the recipientmust explicitly acceptit (kabul). The propertymustbe transferred immediatelyor soon afterthe offer and receipt.Once given, the donorloses all rights over the property-a drawbackif one wishes to retain control over propertyas a means of ensuringthat one's heirs continue to offer materialor emotional support.Gifts may be used to benefit one heir at the expense of others,althoughthe ProphetMuhammad reportedlycondemnedparentswho apportiongifts so as to favor some childrenover the rest.14 Some Middle Modemjurisprudence weakenedthese restrictions. has Eastern parliamentshave passed statutes to change Islamic law: for example, to allow bequests to be made to heirs, and to provide an "obligatorybequest" to an orphanedgrandchild.15 Although controversial, these measures have established a general trend in modern, state-initiated Islamiclegal reform. Comparedto these reforms,a recentIndonesianlaw appearsto take a step backward,because it limits, ratherthanexpands,the authorityof a Muslim to donate wealth. The new rule is contained in the 1991 Compilationof Islamic Law in Indonesia(KompilasiHukumIslam di Indonesia),which applies exclusively to family law matters(marriage, divorce, inheritance,and trusts).16 Fearing that open debate in Parliament about Islamic legislation would lead to public protests (as did debate over a marriagebill in 1973), the Indonesian governmentdecided to presentthe Compilationto the public in 1991 as a Presidential Instruction(Inpres). In the Indonesianlegal system, a presidentialinstructionhas lower standingthan a statute,but enjoys the all-important backingof the President-who issued the instruction beforeleaving just on the pilgrimageto Mecca, an actionhailed at the time as a sign of the government'snew positive attitudetowardIslam. The jurists who developed the Compilation proclaimed it as the consensus (ijmd')of the Indonesiancommunityof scholars.The President's statementdirectedall judges (and other civil servants)to follow
14 Ibid., 239.

15 On these reforms, see ibid., 143-50, 255-57; Esposito, Women, 53-57, 65-67, 94-96. 16 On the form, history, and politics of the Compilation, see John R. Bowen, "Legal Reasoning and Public Discourse in Indonesian Islam," to appear in New Media and the Politics of Civil Society in the Muslim World, ed. Dale F. Eickelman and Jon W. Anderson (Bloomington, 1999).



its rules, and, indeed, shortly after it came into effect, it began to be cited as the basis for decisions, supplementingor replacing citations from classicalfiqh texts, and sometimesoverridinglocal social norms. Despite its quick applicationby judges, however,the legal statusof the continuesto be debated.17 Compilation Although representedas a consensus of the learned, and said by some commentators be a codificationof local Shafi'ijurisprudence,'8 to the code includes some changesfrom establishedpracticein Indonesia. One such instance is the rule limiting gifts. Article 210 of the code reads:"Someoneat least 21 years old, in commandof his or her reason and without compulsion, may give as gift a maximumof one-thirdof his or her wealth to anotherperson or institution,as their property,in the presence of two witnesses."'9The new rule about gifts (which has been affirmed by the Supreme Court) is analogous to the standard on restriction bequests.It is not only a startling innovationin the context of international Islamicjurisprudence, also a departure from standbut ardIndonesianIslamicjurisprudence, which allowed Muslimsthe right to donateall theirproperty long as thatdonationoccurred beforethe (as onset of a terminalillness).20It seems to reducethe capacityof parents wealth in accordwith local norms,for example,to give their to transmit in equal portions to their children. If this impression were wealth correct,then the new rule would signal a sharpreversalin Indonesian Islamic legal thinking, which has been in the direction of seeking accomodation with local norms, particularlywith respect to gender

How do we explain this departurefrom an establishedlegal norm, this apparent about-face in religious thinking? We may begin by
17 For articlesby juristson the statusof the code, see H. Muhammad Bahrul Hukum Islam(KHI)dalamkonstelasipolitikhukumnasional" Ilmie,"Kompilasi of of law [Compilation IslamicLaw in the constellation national policy],Mimbar 24 Islamsebagai Hukum Hukum, (1996), 18-26;andDrs. E. Matardi, "Kompilasi di of hukum agama" terapan pengadilan [Compilation IslamicLaw as appliedlaw in thereligious Mimbar Hukum (1996),27-35. 24 courts], 18 See AndreFeillard, Islamet Armeedan L'Indonesie (Paris, Contemporaine 1995),292. 19 Otherarticlesaddfurther provisos.In keepingwith standard jurisprudence, article213 statesthatif the giver of the gift is sick and neardeath,then the gift mustreceivethe consentof the heirs.Article211 stipulates a gift to an heir that one that towards heir'sshareof theestate-thus preventing of three maybe counted of sons, for example,fromreceivingone-third the estateas gift andthenan additionalshareas heir.Compare 235-43. Coulson, Succession, 20 See, for example, the stipulationsin one standardmanual written in H. Indonesian, Sulaiman 1954),311-14. Rasjid,FiqhIslam(Jakarta, 21 See JohnR. Bowen,"Qur'an, Gender." Justice,



examining the ways in which religious courts and the SupremeCourt have justified the rule. The Compilationhas not been accepted by all religious jurists as the final word on Islamic law, and the jurists responsible for its passage, who include officials in the Ministry of Religion and judges on the Supreme Court, miss no opportunityto justify its existence as a quasi-codificationof the law. They do so by writing articles in variousjournals and books, and in particularin the bimonthly Mimbar Hukum, the official journal of the Ministry's Directorateof Religious Justicesent to all religious courtsin Indonesia. Judges also discuss the legal status of the Compilation in their decisions. As it happens, the SupremeCourtJustice who directedthe process of writingthe Compilation,H. BusthanulArifin, also serves as head of the Court'spanel on religious affairs.In thatcapacity,he plays a majorrole in selecting cases concerningIslamic law for the Courtto hear, writing the Court'sdecisions, and encouragingthe publicationof a small numberof these cases in Varia Peradilan, the legal journalof record.In theirjustificationsfor theirdecisionson Islamiclegal matters, the Supreme Court and the appellate courts have advanced reasons why the rules contained in the Compilation are valid as Islamic as jurisprudence well as being valid as positive law. The Case: Justifyingthe Rule in Mrs.Warsihv. Mrs.Iim Such a case exists for the rule limiting gifts. In 1992, the year afterthe Compilation'sendorsement the President,the first-instance by religious court in Tasikmalaya,in West Java, issued a decision on the matterof a gift exceeding one-thirdof the estate. The decision was appealedand heardby the SupremeCourt. In this case, Mrs. Warsihv. Mrs. Iim,l the plaintiffs asked the court to annula gift made by theirsister,Mrs. Ending,to her adopteddaughter, the defendantMrs. Iim.2Mrs. Endingand her husbandhad adoped Mrs. Iim; subsequently Endinghad died and, in 1981, Mrs. Ending Mr. had given all her propertyto her adopteddaughter.Mrs. Ending died ten years later, in 1991. That same year, the deceased woman's two sisters broughtsuit. They stated that, first, they were never told of the gift and, second, that the gift was for more thanone-thirdof the wealth and thus violatedthe law.

(1997), 2 Adoption is recognized bothcustomary statelaw in Indonesia. in and

1 Varia Peradilan,136




Indonesiahas four distincttypes of courts;of relevancehere are the religious courts,which hear family law cases involving Muslims, and the general courts,which hear all other cases. In both types of courts, procedurefollows a colonial-eraversion of Europeancivil law. Plaintiffs and defendantsintroducewrittenstatements,replies, and counterreplies, which are handed to the judges and entered into the court record.Panelsof threejudges presideover inheritance disputes;a single hear and decide othermatters.Attorneysmay or may not be judge may present or involved in any way; in religious court proceedings they rarely are. After questioning the parties and their witnesses, judges write a decision in which they outline the argumentsand testimony offeredby each side, and presentthe legal considerations relevantto the followed by their decision. In all cases regardingthe disposition case, the are of property, proceedings open to the public. At the appellatelevel,24the judges reiteratelower-courtproceedings and then issue a judgment. Generally they work only from the documentsforwarded them.The appellatecourtmightoverturn, to affirm,or send back the case for furtherevidentiaryhearingsat the first-instance level. More rarely, it might issue its own decision in the matter.The SupremeCourthas the same options, but it generallyrestrictsitself to the question of whether or not the lower court interpretedthe law correctly,and avoids weighing claims about evidence, or considering not at arguments alreadyintroduced a lower level. A publishedaccount of a case that has been heardby the Supreme Courtincludes the decisions of the first-instanceand appellatecourts, and thus allows the readerto follow the argumentsand legal reasoning presentedat all stages. In the case of Mrs. Warsih,the SupremeCourt of affirmedthe lower court'sinterpretation the law. The Court'sruling was written by Justice H. Busthanul Arifin, who, as was mentioned above, had directedthe developmentof the Compilation.The case is, the useful in understanding reasoningbehindthe therefore,particularly on gifts containedin the Compilation. rule Mrs. Iim rejected the plaintiff's request that the gift to her be annulled. She stated that there were no legal limits on the amount one could give as gift and that, in any case, the gift to her had been made accordingto adat law, ratherthan Islamic law, and that the religious
24 Both religious and general courts have district-level appellate courts, and the

Supreme Court acts as court of cassation for both systems. For a detailed account of the SupremeCourt,see S. Pompe, The Indonesian SupremeCourt: Fifty Years of Judicial Development(Leiden University Faculty of Law, 1996).



court did not have jurisdiction in the matter. (The official document form issued by the subdistrictadminiattestingto the gift is a standard strative offices; the document attests that the gift was made and identifiesthe witnesses, withoutindicatingwhetherthe gift was carried out according to norms of Islam or adat.)25 Mrs. Iim also arguedthat because Mrs. Ending had made the gift long before her death, there were as yet no heirs or inheritanceat the time of the giving, because these categories come into existence only at death (or just prior to death). Nor, she concluded,was the permissionof the heirs needed for a gift to be valid. The plaintiffs producedseveral witnesses, one of whom was their a brother-in-law, man who had been a village policemanin 1981, when the gift was made.He testifiedthathe had urgedthe village headmanto annulthe gift on the groundsthatit was in conflict with the law (he did not say which law). He had urgedMrs. Iim to limit the gift to one-third of the estate. He claimed that the initiative for the gift had come from Mrs. Iim and not Mrs. Ending and, furthermore, it could not have that been the "free act" of the deceased to give away all her estate in this way, or surely she would have informedthe heirs, her sisters, about it. Otherwitnesses testified that the gift had been made, that the proper words had been said in offer and in receipt (the court chose to quote these words, in the local language, Sundanese),and that the plaintiffs had not been present. The threejudges hearing the case decided that the gift indeed had been carried out according to the legal procedures,as Mrs. Iim had claimed (and that they did have jurisdiction). There remained the plaintiffs' charges that they had not been informedof the transaction and thatthe gift exceeded the limit on gifts. It is at this point in the published decision that the judges presumablycrafted their argumentin such a way as to renderit as convincingas possible-to the litigants,to any futureappellatejudges, and to any potentialreadersof these public decisions. We might, then, expect to find clues as to the normssupportstructure thejudgment. of ing theirdecisionin the narrative
25 In Indonesianlaw, claims heardin the generalcourts may be based on hukum law."Whatcountsas "customary is oftenthereupon law" adat, "customary with the litigantssometimes or disputed, callingolder"adatexperts" villageheadmen as witnesses,and even, on occasion,citing compendia adatrechtwritten of the law during colonialera.Generally speaking, customary does not have standing as law in the religiouscourts,although"custom" cited as addingto the crediis bility of a witness's claim that,for example,a particular speechaboutland was madeat a wedding ceremony.



The judges began by affirmingthat the plaintiffs were indeed heirs of the deceased.They cited as theirsupportQur'an4:176, which reads: Whentheyaskyou fora decision, Goddecrees you in thecase for say: of al-kalala: a mandieswithout child,andhe has a sister,thenshe If a is entitled halfof whathe leaves.He is herheirif shedoesnothavea to of child.If they[female]are two, thenthey are entitledto two-thirds to whathe leaves.If theyarebrothers sisters, and thena maleis entitled theshare twofemales. of Godmakesclearforyou [lest]you go astray. Godis all-knowing"26 Much has been written about this verse, and in particularabout the appropriatetranslationof the term al-kalala, which, in this passage, means either someone who dies without children, or all those except parent and child.27The verse stipulates the shares to be awarded to sisters when the deceased has left no children. These shares are reaffirmedin the Indonesian (article176). Compilation Note that the judges decided to lead off their argumentby citing a verse about heirs, ratherthan a verse about gifts. Although this narrative decision may seem strange,in that the case is about gifts, it does highlightthe rightsof the plaintiffsas heirs. Their situationis precisely thatdescribedin the verse-two sisters,no brothers, biologicalchild. no the With no need for additionalcommentary, verse makes clearthat,as heirs, the plaintiffshad the rightto two-thirdsof the estate.Because she was adopted,Mrs. Iim is not an heir accordingto Islamic law, which does not recognize heirshiprights of adoptees(althoughshe does have other rights as an adoptee underthe terms of the Compilation,which are discussed below). The narrativeprecedencethe judges gave to the definition of heirs, then, supportsthe plaintiffs' complaint that they were not consulted about the gift, as they ought to have been, given their status as heirs. It also readies us for subsequentstatementsabout the needs of heirsin general. Thejudges then declaredthatthe current "Islamiclaw thatappliesin Indonesia"limits the defendant'sshare to 1/3 of the estate. They presented four legal sources to supportthis proposition.They began with the articleof the Compilationthatlimits a gift to one-thirdof an estate. They then quoted a portionof a hadith in which the ProphetMuhammad limited bequests to one-thirdof the total estate ("A third, and a
26 Becauseof the centrality the translation this particular of of passageto his I of argument, have used the translation David S. Powers,Studiesin Qur'dnand Hadith:The Formationof the Islamic Law of Inheritance(Berkeleyand Los Angeles,1986), 100. 2 Ibid.,21-49, 99-109.See the articleby Richard in Kimber this themeissue.



thirdis much. It is better that you leave your heirs rich than that you shouldleave themdestitute,begging fromtheirneighbors").28 Although the court specified that the passage concernedbequests, they chose to quote the portion that could be read as stating a general rationalefor limiting the amountof wealth that can be kept from heirs by whatever means, namely, that without the limitation,heirs could be left without any wealth and be forced to beg from their neighbors. The court inferredfrom the hadiththat "one may not exceed one-thirdand if one does, then anythingover one-thirdis void", but withoutaddingthat the propheticdictumwas utteredin responseto a questionabout bequests. Next, the judges cited FazlurRahmanto the effect that if the heirs do not agree to the excess, then the excess is void, but thatthe one-thirdof the estate that can be given remains valid. Here again, the quoted portiondoes not make explicit that Rahmanwas discussing bequests, not gifts. The court's selection of passages emphasizestwo aspects of standard Islamic jurisprudence,probably acceptable to all readers of the decision, namely, that the limitationon bequestsis based on a concern limit to for the heirs, and that one-thirdof an estate is an appropriate ensurethe heirs' welfare. In otherwords, the passages highlightnot the specific rule aboutbequests,but the legitimateneeds of heirs thatgave rise to the rule. (The passages also portray"begging" in a negative light.) These carefully selected quotationslend an air of plausibilityto the new rule limiting the amountthat may be given, suggesting that it does in fact correspondwith general norms of Islamic jurisprudence. The reasoning process involves an analogy, a form of qiyds, even though the term "qiyas" is never used, nor an explicit analogy ever

Finally, the judges quoted a passage from a book of Shafi'i jurisprudenceas follows: "Whosoeverbegs from anotherbecause he or she is in need, one may not give the personall one's wealth,nor most of it." This final sourceof law presumablyis relevantin thatIim was accused of having initiated the gift by asking for it (or "begging") from her adoptivemother.The quote also nicely complementsthe hadithquoted earlierin the decision:takentogether,the two statementsurge Muslims to treat begging for a share of an estate as a negative action, which shouldbe hinderedby ensuringthatall heirs get somethingand also by not excessively rewarding beggars.
28 As translated Coulson, in Succession,214.

29 Onformsof qiyas,see the discussion Hallaq, in History,101-07.



Having established the law upon which they would base their decision, thejudges ruledthatthe gift was void because it exceeded the shouldretainthe one-third limit on gifts, butthatthe defendant one-third became the of the total wealth thatfell within the limit. The remainder of the plaintiffs. The court assigned specific parcels of land to right defendantand plaintiffs, but did not apportionthe wealth among the plaintiffs. Mrs. Iim appealedthis decision, and, althoughthe districtappellate courtrefused to hear the appeal (on the groundsthat it was made after the time limit had expired),the SupremeCourtdid hear her subsequent request for cassation. The SupremeCourt affirmed the lower court's decision, stating that the lower religious court had not misappliedthe law. Their decision was then published, togetherwith the two lower courtdecisions, in the country'scase recordof note, the VariaPeradilan, cases for which are selected by judges belongingto the Indonesian Association of Judges,IKAHI.30 One can see why the SupremeCourt might have chosen to decide this case ratherthan others in which presumablysimilar claims had been raised, and why judges might have selected it for inclusion in the case record:theirintentno doubtwas to presenta compelling case for the new rule. The case involved a secretive defendant,who did follow establishedproceduresto ensure that the gift would be recognized as valid, but who kept her siblings out of the pictureentirely. She was an adopted,not a biological child, and so was not an heir. Her adoptive status added normative support to the rule, both because the gift deprivedthe legitimateheirs of any sharein the estate, and because the new rule allowed her precisely what she would have received had no gift been made.Herrightsas an adoptedchild are stipulatedby the new Compilation(article209): she has the right to an obligatorybequest, a wasiyya wdjibah,of a maximumof one-thirdof the estate-the same fractionof the gift thatthe courtallowed her to retain.The convergence of the two rules on the same fractiongave addedcredibilityto the onethirdlimit on the gift in this case. Had the Courthearda differenttype of case-say, one in which a biological son was given one-half the estate despite the presenceof several other siblings, but could advance an argumentas to why he deservedthe share,the resultmight not have been as convincing.
30 Pompe, Indonesian, 377-79, describes the selection process; judges select cases for their"news value."



The use of obligatorybequests to supplementthe shares allotted to heirs is found in other Muslim countries as well. The device is used i.e., mainly to allocatewealth to orphaned grandchildren, grandchildren whose linking relative to a wealth-holding grandparent pre-deceased the grandparent, thus, according to the science of shares, cutting off theirpathto inheritance.31 maximumshareof the estate that can be The allocated as an obligatory bequest is one-third.(Otherrules limit the proportionof an estate that can be allocated as an endowment:Egyptian law limits to one-thirdof the total estate the amountplaced in an endowmentof which non-heirsare to be guardians.) Not only does the existence of these specific rules in other Muslim societies give addedlegitimacy to the Indonesianrule concerninggifts, texts thaturge but the rules in turnhave been justified by authoritative Muslims to treateach child fairly. More specifically, certainFollowers of the Prophet (the generation after the Companions) stated that no more than one-third of an estate should be alienated through any The mechanismotherthaninheritance.32 specific rule innovationmade in Indonesia can, therefore, be justified by referring to a general principlethatheirs shouldnot be deprivedof the majorityof theirestate. Finally, the ubiquityof one-thirdas a limit makes it an obvious "focal limits on othertypes of allocations.33 point"for determining Even before reachingtheirconclusion, then, the judges were able to create an implicit sociolegal argumentby selecting and juxtaposing passages. I would characterizetheirargumentas follows. Heirs should not be reducedto begging. Limitingbequestsor gifts to one-thirdof an estateis motivatedby this generalconcern,and the positivelaw limiting gifts is thus religiously well-grounded.Heirs also should be consulted aboutthe division of an estate, and the fact thatthey were not consulted in this case made the gift improper,albeit not illegal. The defendant asked for the gift; as an adoptedchild she was not even inappropriately an heir, makingthis requesteven moreinappropriate. This reasoningprocess, inferredby me from the narrativestructure of the decision and from the several statementsmade by the judges, was far from being an automaticapplicationof a legal rule. The rule, from the Compilation,was of course cited, and it is clear that it was
Muslim World(London,1976), 155-56, and the articleby Lucy Carrollin this themeissue.
32 Anderson, Law Reform, 166. The Strategy of Conflict (Cambridge,MA, 1960), 111-18.
31 See Coulson, Succession, 143-46, and J. N. D. Anderson,Law Reform in the

33 On "focalpoints" mechanisms convergence, Thomas Schelling, as C. for see



applicable here because the entire estate was given away after the work carriedout by Compilationtook effect. But most of the narrative the judges was directedtowardjustifying the rule, not showing that it directly applies.Thejudgesjustifiedthe rulebothdirectlyandindirectly: when they arguedthat limiting gifts preservesthe welfare of the heirs and benefits society by reducingbegging; indirectlywhen they argued thatthe type of acts thatled to the gift were socially inappropriate-an for adopteddaughter "begging" the gift andthenkeepingthe heirsin the dark. Most of the legal argumentpresented was thus about norms, not legal rules.The normshave Islamic sources,but they do not themselves here way. They are important compel thejudges to act in any particular because they give to the rule a moral and social grounding that its does not provide. inclusionin the Compilation as JustifyingtheRule:Fairness andAgreement Social Norms How can we explain the rule limiting gifts? One way to do so is to see whetherthe normsused to justify the decision in Mrs Warsihv Mrs Iim are referredto in other contexts as well. Such contexts could include otherdecisions and commentariesby judges andjurists, but also local social processes of transmittingwealth. If ordinary people invoke certainsocial norms in these social processes, then it is reasonableto expect that those norms also would shape decisions taken by judges, whose interests, perceptions,and norms derive from their own backgroundsin particularlocales as well as from their education in legal andreligioustraditions. Little has been written to date about how this rule came to be inOne of thejudges responsiblefor developing cludedin the Compilation. the code, Supreme Court Justice M. Yahya Harahap,has written an on in extensivecommentary the Compilation which he mentionsthe rule He states thatpriorto the Compilation,some juristsandjudges briefly. considered it legitimate to give away all one's wealth, while others thoughtthat this was not allowed by Islamic law, and some of these people considered the properlimit to be one-thirdof the estate. The result of this difference of judicial opinion was that court decisions varied, and society was "confused",a confusionrectifiedby the Compilation.34
34 M. Yahya Harahap,"InformasiMateri Kompilasi Hukum Islam: Mempositifkan Abstraksi Hukum Islam" [Informationabout the source for the Compilation of Islamic Law: Rendering as "positive" the abstraction of Islamic law], in Tim



is The argument codificationhas reducedlegal uncertainty made that for the code. But Harahapattemptsto justify frequentlyby apologists the contentof this rule as well as the need for some rule. He arguesthat the rule limiting gifts brings Islamic law close to adat and European laws, by which he means closer to the general norms of fairness towards all children that are contained in adat and in Europeancivil law.35Thatsocial normscan have Islamic legal force is explicitly stated in the final articleof the Compilation(art. 229), which urgesjudges to "take careful account of the living legal values in society, so that decisions are in accordwith a sense of justice." Alongside of fairness as a candidate for explaining the rule is a second social norm of agreementamong heirs. That this second norm is a non-legal social norm is shown by inspecting a case decided the year prior to Mrs Warsih v. Mrs lim. In a 1996 ruling on the case, Endang Suarna v. H. Endang Sutisna, the SupremeCourt stated that notifying the heirs was not requiredfor a gift to be valid.36As long as of the gift was made with a pronouncement giving and receiving, the fact that the giver's childrenwere neitherpresentnor notified did not detract from its validity. In the published version of the case, this conclusion was emphasized by being included in the boxed "legal abstract" precedingthe text of the case. The SupremeCourt'saffirmation of this rule, which was written by the same judge who presided over Mrs Warsih v. Mrs lim, makes clear that the basis for the 1997 decision was not the failureof the defendantto notify the heirs, but the one-third rule. Why, then,was the failureto notify the heirs given such a prominent place in the court's narrativein Mrs Warsihv. Mrs lim? Although not requiredfor a gift to be legally valid, the agreementof heirs receives strong normativebacking from the code and from lower courtjudges. As with all other rules in the Compilationthat affect the inheritance system, the one-thirdmaximumapplies only if the heirs do not agree to
Ditbinbapera [Team from the Directorate for Promoting Religious Justice Institutions], Berbagai Pendangan Terhadap Kompilasi Hukum Islam [Diverse Perspectives on the Compilationof Islamic Law] (Jakarta,1994), 192. 3 His claim could not, of course, be that the new rule resembles local adatbased practices, because those practices frequently include giving or bequeathing most or all of one's wealth before death, practices rendered more difficult by the code. 36 As reported in Varia Peradilan, 134 (1996), 40-65. In the request for cassation, the plaintiff put forth the claim that the gift exceeded one-third of the estate, but because this claim regarded a matter of proof, involving evaluation of the wealth (to determine the one-third limit), it was outside the bounds of issues considered in cassation.



a division. Article 183 of the code says that"the heirs may come to an agreementthroughconsultationregardingthe division of the estate, as long as they are awareof theirrightfulshares."Thereis some evidence that lower courts give such agreementsprecedenceover other legally valid acts, including gifts and priordivisions of wealth. In the Islamic courtwhose decisions I have been following (see below), judges may consider an agreementreached in court to override all previous gifts andbequests,and to preventthe partiesfromlaterbringingsuit for their inheritance share. Thus Mrs Iim's failure to even attempt to reach consensus may have been viewed as an aggravating factor, which, when combined with her asking for the gift, made her actions seem additionally inappropriate. and Agreement Fairness in GayoIslamicJurisprudence On the local level, gifts andbequestshave been at the centerof disputes about the relative appropriateness of Islamic versus adat-based wealth. For most of its history,the process of processesof transmitting dividing estates in Indonesia has been guided by values, ideas, and rules that are in strikingcontrastto those providedby the "science of shares." Two ideas separate older Indonesian practices from the Islamic rules. First, passing on wealth is primarilyabout reproducing social relationships and funding the next generation, not about the rights of individuals to property. Secondly, however the respective culture,they are rightsof one's childrenare definedwithin a particular as rarelyformulated a fixed ratioof males to females. In most Indonesiansocieties people hold one of threegeneralideas. All children,or at least all childrenwho remain in the communityas adults,shouldinheritsomething,with more or less equalityof men and women. Or, one child, either a son or a daughter,should inherit the main lot. Or, all childrenof one gender(most often men, but sometimes women) shouldinherit,while the otherchildrenshouldmarryout of the elsewhere. groupand sharein theirspouses' inheritance These rules are even more radicallydistinctfrom the Qur'anicones than they first appearto be. The two sets of rules-Qur'anic and older Indonesian-are embedded in two distinct conceptual schemes. In Islamic law, wealth is the propertyof an individual.Upon an owner's death the rights to that wealth automatically devolve upon heirs, in fixed ratios. In most Indonesian societies wealth, especially landed wealth, has been partof a community:a household,a lineage, or a village. Oftenthe communityholds a residualrightover ancestralproperty



that prevents its control from falling into other hands. Within these limits, individualsreceive rights to use wealth from their parents,and then pass these rights on to those of their childrenwho remain in the community.Who gets what is constrainedby local norms,but parents generallyhave a greatdeal of leeway to rewardthe dutiful daughteror son. Wealthis fundamentally fund for reproducing family and the the a community. Most Indonesianinheritancesystems allow for a range of practices. In the Gayo community of Isak, in the district of Central Aceh, in highland Sumatra,where I have done most of my household-based research, people are affiliated to one of five villages. Although most village membersthink of themselves as linked by common descent to some others in the village, what gives the village its identity is not and kinshipbut its politicalstructure the integrityof the rice landwithin its boundaries. Most rice land associatedwith a village is located in one unbroken area. Although individuals control productive land, house plots, and sugar trees, this control is contingent upon continued affiliation to the village. "Before the Dutch came," one older man explained, "therewas no ownership (milik) in Isak; only use-rights." The communitystill acts to preventthe alienationof land to someone not affiliatedwith it. Over the past few generations people generally have transmitted wealth in three ways. They give some of it to children.Parentsoften give a plot of houselandand a portionof the ricelandor gardenlandto one or more children, often at the time that a child sets up a new household. The eldest son is the child most likely to receive wealth in this way; a daughter who stays in the village after marriage will probablyremain, togetherwith her husbandand their children,in the parents' house, and take over the responsibilities for running their household. As one religious teacher, Tengku Asaluddin, explained to me in July 1994, "In the old days, people tried to divide their wealth before they died, so that there would be no "sharpdagger"after their death,nothingfor theirheirsto fight over." Parentsusually leave some land undividedwhen they die, however, and in that case childrenuse the land without immediatelydividing it may continue among themselves.These informalsharingarrangements for one or more generations,but at some point a formal division does take place. In most cases I have observed in Isak, those sons and daughterswho remain membersof the village after marrying(and in this society, eithermen or women can retainvillage membership) retain



rightsto use the land and, eventually,to controlit and pass it onto their children.Those who marryout of the village lose all claims over their parents'lands. Parentsmay also state that the child who cares for them in their old land".This strategyensures age will inherita specific plot of "support that parents are not left uncared for. However, quite often a son, usually the eldest, takes controlof the parentalestate afterhis parents' death and refuses to divide it among the heirs. A daughterand her married-in husbandmight have been working land left to them by the parents, but find the land taken from them by the eldest son. Cases heard by the religious court often concern refusals to divide land, or seizuresof land from a sibling. Thus, older Gayo ways of passing on wealth were shaped by patterns of marriage and affiliation-only those remaining in the village receive wealth-and have allowed total discretionto the owner of the wealth in distributing If we translatethese normsinto Islamic it. legal terms, we can say that distributionshave been mainly by gift, hiba, as when land is given to a child upon marriage, or bequest, wasiyya, as in the case of the "supportland."Gayo people sometimes refer to the latter as a hiba wasiyya, a "bequestgift". (This terminorule logical combination helps explainthe ease with which the one-third was extendedfrom the domainof bequeststo includegifts.) None of the older Gayo ways of transmittingpropertyprecisely matches the way jurists see Islamic law, however. Most Gayo parents to considerthese distributions be family mattersnot requiring witnesses; make their bequests to heirs; they leave nothing for they generally who have married of the village. children out One might think,therefore,thatto the extent thatlocal social norms have shaped Indonesian interpretationsof Islamic law, they would have liberalized the rights of landownersto give and bequeaththeir land, perhapsleading jurists and lawmakersto adopt a rule allowing bequests to heirs (as has been done in several other Muslim states). But, as we have seen, legal change has gone in the opposite direction, making gifts more difficult than is the case in most other Muslim countries.Why is this so? The answer, I think, is that local jurists and judges have come to view hiba and wasiyya as impediments the Islamizationof social life to as sources of inequitiesand conflicts among heirs. These officials and see division of the estate accordingto the "science of shares"as a way to ensurefairness.Consequently, they have triedto limit the use of gifts



and bequests. In several recent cases heard at the Central Aceh religious court in Takengen, the judges refused to recognize some gifts as valid, not because the total amount exceeded one-third of the estate, but because they decided that the gifts were made at the urging of one party, and resulted in another party receiving less than his or her rightful share. Hiba, gift-giving, is seen as a suspect departure from a fard'id system of rights. Like a "suspect category" in American jurisprudence, gifts deserve close scrutiny. In a 1994 interview, Judge Kasim of the religious court mentioned to me one such case that was awaiting review by the Supreme Court. "A fatherhad a son and four daughters.He gave a lot of his rice land to the son and the son's wife; the son also received a large bequest. He gave very little to the daughters.In the 1970s, he drew up a document and had everyone sign. He even sent one of his grandchildrento persuadea daughterwho had been reluctantto sign, and she signed. She was not satisfied, though. Later there was a second document, probablydrawnup by the son, but writtenas if it were from the father, in which the bequest was made officially to the son, and the son's portionof the remaining lands was increased! Each daughter should have received2.5 ternmeasuresof land [undera hectare], but only got 0.5 tem! This was going too far, it deviated too far from justice. There is a hadiththatsays that,althoughgifts shouldbe given fairly, they can still be valid even if they are not fair. But this is going too far. Finally, after the fatherhad died, the daughter petitionedthe court.She was joined by his other daughters,but at least one daughtersided with the son. The defendant based his case on the first document, but we said it was going too far. They appealed and lost, and the case is now with the SupremeCourt. in "We arevery interested seeing whetherthe Courtcan supportour because it introducesa sense of justice into the court. Now, judgment, no one is totally fair-just look at the fingers on one hand: they work togetherbut are all differentlengths. And so it is with children:some will taste sweet, some rich, some bitter.But therearelimits." Observe in this case how easy it would have been for the judge to say that the agreement was valid. After all, the letter of agreement had been signed by all the parties concerned, and no proof was offered of coercion. But the judges said that they disbelieved these documents. They contrasted sincere (ikhlds) agreement, which could only be obtained if the division had been fair, with mere procedural correctness.37
37 It may be that this sense of appropriateness will lead to futurejudicial oppositionto legal formalism;such a directionwould be consistentwith the in effort to correctgenderinequalities local adat Court'slong-standing Supreme



Giving gifts is sometimes also seen as creating discord. Takengen's most notorious recent case, in re Sairar, turns on the requirements for making a valid gift.38I summarize the various steps taken in the case in order to illustrate the complexities created by the coexistence of several norms concerning gift-giving. The case began in 1977, when Sairar, the mother of seven daughters and one son, and the owner of considerable land and several shops, called a local religious scholar, Tengku Ali Jadun, to help her divide her wealth. She and her late husband had already given land to each child (and houses to two). One daughter, Aisyah, had purchased some of the property from her siblings. Sairar now asked Tengku Jadun to advise her on the division of the remaining lands. He suggested they ask the religious court to render an official opinion (penetapan).39 He then represented her in court. Although the hearing was to concern only wealth that had never been allocated or divided, in effect it opened up for reconsideration the entire property history of the family. The children argued among themselves in court about the original gifts. Sairar's son complained that the earlier division was unfair. (He undoubtedly hoped that the court would redivide all the wealth along Islamic lines, giving him an extra share.) The court sent the children away to work out a solution among themselves. They met in the house of one of the daughters, and produced an agreement that preserved the gifts but made some adjustments to resolve differences. The court then declared the agreement, including all the altered gifts, to be valid and ordered that the wealth be divided. In the eyes of the religious court, any arrangement agreed on and ratified by the court is religiously valid. The court also held that the agreement was required in this case, that for a gift to heirs to be valid it must be agreed to, not just known by, all the other heirs (whereas if it were to a non-heir it only would need to be witnessed).40 The court therefore was sympathetic to the son's complaint about the fairness of the earlier division, and attempted to rework the terms of the gift so as to arrive at a consensus. The religious court's actions contradicted another interpretation of the law on gifts, however, namely, that they are contracts between
systems in the name of a "living law." See Bowen, "Qur'dn." 38 in re Sairar, Pengadilan Agama Takengon, 60/1977, in court archives. 39 This request is consideredby jurists to be akin to requestingafatwd from the 40 This argumentis set out in a letter from the court reporterto the parties, in courtarchives.




One of the givers and receivers,and are not subjectto lateradjustments. to the appellatereligious courton precisely daughters,Bona, appealed the grounds that a court cannot change a gift made by an individual, but only declare it valid or invalid. The appellate court accepted her argument, and overturnedthe initial agreement. The same daughter (together with the son and three other daughters) then sued in the general court to prevent their siblings from using the land or shops. They claimed that the gifts were invalid, both because two of the childrenhad not attendedthe religiouscourtsession at which the agreement was ratified,and because thatcourt's alterationof the gifts was invalid. The generalcourtagreedwith the plaintiffsand annulledthe gifts. Both the appellatecourtand the SupremeCourtupheldthe ruling. This first round of the proceedings left undivided the original which was of considerableand increasingvalue. By this time, property, Sairar had died, so it was the children, without Aisyah, who approachedthe Takengenreligious court, asking it to redivide the entire estate. The court did so according to the "science of shares,"a result that deprivedAisyah of the shops she had purchasedfrom her siblings. Aisyah successfully appealed the division to the appellate religious court, which stated that the lower court should have ruled on the validity of the originalgifts. The siblings in turnbroughtthe case to the SupremeCourt,which orderedthe Takengenreligious court to reopen the question of the gifts. The religious courtreheardthe case in 1993, and simply restatedits earlier position that because the general court had found that therewere no gifts (because not all heirs had agreed to them), the religious court was free to divide all the wealth into inheritance shares.It did so, for the secondtime. had by this time died, and Halimah, her sister (who, after Aisyah Aisyah's death,marriedAisyah's husbandand took over controlof the shops) continued the series of suits, this time appealing the religious court's division to the appellatereligious court,and after losing, to the SupremeCourt,again on groundsthatthe gifts had not been adequately considered. As of mid-1994 the case was waiting to be heard by the Supreme Court.Accordingto the chief clerk at the religiouscourt,even while she was awaiting the result of this appeal, Halimah had started new proceedings before the general court, regarding the same land but giving the case a slightly different twist, with the aim, he said, of prolongingthe process andretainingcontrolof, andrentsfrom,the land as long as possible.



This case is unusual for the persistence of both sides, and for its three separate appeals to the Supreme Court (possibly a record for Takengen). It does, however, illustrate the legal legitimacy of a norm that gifts to heirs should be agreed to by the other heirs, a norm that appeared to float alongside, and add strength to, the decisive norms cited in Mrs Warsih v. Mrs Iim. Reinforcing this norm of agreement is a concern over the discord that gifts introduce into family life. Tengku Ali Jadun, the jurist who originally represented the mother, evinced uneasiness at the use of the gift even as he emphasized the right to give away what you own. "Afterall,"he told me in a 1994 interview,"wali n'anak amad,wali ni erta mpuwe"("Theguardianof a child is the father;the guardianof wealth is the owner").If I want to give you this orange,here! [he picks up an orange from the bowl in front of us and hands it to me]. I don't need witnesses. If I want to give someone this chair,I just give it to him, I don't need to ask my childrenif they agreewith me. I own it." I pointed out that some people argued that if you gave wealth to your children,all otherheirs must agree before it was valid. "Really, you should not give wealth to your heirs. Gifts are for cases like this: if one of my childrendies, then his childrenget no partof the estate. So I If mightgive somethingto them so they get something.41 you give a gift to your heirs that means that you are favoring some of your children over others.But they are all your childrenand you shouldnot do that. It also just leads to arguments. tell people who come and ask my opinion I that if they wish to favor one child, they shouldbuy some gold and give it to them, or open a bank account or the like. If you give land to one child, the land is out therein the open and will lead to quarrelslater on. Gold you can hide." For Ali Jadun, giving wealth is a right, but giving to heirs causes disagreement and should only be done in a non-disruptive way. Ideas about the conditions under which people freely agree to divisions are based on ideas about current social norms of fairness. For example, in the dispute over bequests described by Judge Kasim, the religious court judges in Takengen presumed that a daughter would not have agreed freely and sincerely to an "unfair" distribution. The judges do not have a strict rule that divides the fair from unfair-remember that the fingers
41 The Compilation now stipulates that the grandchildrenreceive their parents' share. Ali Jadun was aware of this clause but he was not convinced that the code was correct,and for the moment was staying with the olderfiqh interpretations. The Takengen religious court was following this rule before the code was adopted, however. In Samadiahvs Hasan Ali, decided in 1987, the courtruled (even when not asked to do so) that the children of a son who predeceased his father has a right to

thatson's shareof theestate.



of the hand are not equal-but some cases evoke a strongresponsethat the division, being clearly unfair, must have involved coercion. Conversely, in the Sairar case the same judges presumedthat a set of gifts that were subsequentlycontested in court could not have been fair, or they would not have led to the legal action. These social norms,probablypresentin similarforms in otherIndonesian societies, help to explain both the legitimacy of a rule thatlimits the power to give away one's wealth, and the referencesto agreement of heirs that, although apparentlywithout legal force, were made in Mrs Warsih v. Mrs Iim. The close association of gifts and bequests, suggestedby the Gayo use of a compositetermhiba wasiyya, is further clarified by these cases, because suspicion of coercion and unfairness arises for the same reasonswith respectto both methodsof transmitting propertyto heirs. Gifts and bequests are viewed as ways of departing from a system of fixed rights, and these departuresopen the way to persuasion,coercion,and manipulation. Inheritance Islam in Minangkabau and Society Whereasin Gayo society distributional norms are not stronglymarked by gender, in some other Indonesian societies they are. In those societies, disputesover how to transmitpropertyto the next generation may have generatedadditionalsupportfor the rule limiting gifts. The clearestexample of this relationshipbetween local disputesand a limit on hiba comes from Minangkabausociety in West Sumatra,where ancestral ricelands,calledpusako tinggi,literally"highheirlooms", long have been passed down intact from mothers' brothersto sisters' sons. This unbroken continuityof land acts both as the materialunderpinning and as the culturalsign of a particular norm of social continuity,itself the key to Minagkabau matrilineal adat.42 tradition, At least by the late eighteenthcentury,some groupsin the regionhad begun to emphasizetheirMuslim identityby practicingand advocating the transmission of property according to Islamic law rather than Minangkabauadat. These groups included coastal tradersand highlands cash-cropfarmers,two populationswhose newly-createdwealth stood apartfrom the "high heirloom"complex of older Minangkabau

Peasant Economy: Central Sumatra, 1784-1847. Scandinavian Institute of Asian

In whatfollowsI rely mainlyon the account Benda-Beckmann, in Property, in Christine IslamicRevivalism a Changing and,for historical Dobbin, background,


Studies, Series,No. 47 (London, 1983). Monograph



The regions.43 Islam-versus-adat way of conceptualizingeconomic and to differencescontributed the open hostilitiesthatfollowed, and political the so-called "Padriwars"(1803-1819) in the region were fought over, successionof rightsand statuses. amongotherissues, the matrilineal By the earlyyears of the twentiethcentury,debatesamongreformist and traditionalist to juriststhreatened lead to new new hostilities in the A series offatwds (legal opinions) and conferences over the region. consensus about succeeding decades led to a regional jurisprudential inheritance. The "Minangkabauconsensus" involved waqf (endowmentsor trusts),bequests,and gifts. In the early 1920's, severalhighlyrespected jurists, among them Dr. Syech Abdulkarim Amrullah, deliveredfatwas stating that the ancestralrice lands were in effect a form of endowment, held in trust by the sub-lineage heads in each generation,for which reason they were not to be divided accordingto the "science of shares."44 This argument continues to be generally acceptedby juristsin the region. non-ancestral Left in disputewas the propermethodof transmitting a categoryincludingland thathad been clearedor purchased property, by the owner, and wealth obtained from ancestrallands and used to buy shops or other forms of immovable wealth45 Advocates of adat arguedthat these lands, too, should be included in the package to be transmitted the controlof theirsisters'children.They pointedout that to who created new wealth did so through the support of the persons ancestral lands-for example, by living off rice grown on ancestral lands while clearingnew land or buildingup a business. Advocates of applyingIslamic law arguedthatthese lands clearlyfell underthe rules offara'id, and shouldbe dividedor given to children. These disputes were sharplypolarizedbetween the rights of one's own children and the claims of one's lineage members, principally one's sisters' children. As Franz von Benda-Beckmann points out, discussions about the division of an estate in this region have always concerned the relative rights of one's own children vis-a-vis one's sister's children, and never the rights of other potential heirs. Nor do these debatesconcernnormsof division among children(such division was and is most often equal).46
44 See the account of his father's role in achieving this agreement in HAMKA [Haji A. Malik Karim Amrullah], Islam dan Adat Minangkabau [Minangkabau Islam and Adat] (Jakarta,1984), 103. 45 Benda-Beckmann,Property, 324. 46 Ibid., 303.
43 Dobbin, Islamic Revivalism, 119, 128.



Furthermore, Minangkabauparents (like Gayo parents)have used and bequests, not division into shares after death, to transmit gifts Hiba came to meanwhat most Muslimjurists to property theirchildren. elsewhere would have called a bequest, namely, a contractthat only became effective after the donor's death. These locally-named hibas were revocable and restricted to one-third of the estate and to nonancestral wealth. In effect, the hiba merged into the category of bequest.47 Minangkabaumen and women have preferredto use this mechanism becauseit gives themcontrolover property beforetheirdeathsand because it allows them to designatethe personsto receive the property. As is the case in Gayo society, many Minangkabau find that this mechanismcreatesthe right combinationof incentivesfor the intended recipient:the gift will be the recipient's,but it can be takenback if he or she fails to take good care of the parents.The "gift bequest"thus served as a quiterationalway of leaving propertyto designatedchildrenwhile ensuring continued care and attention. These transfers also were preferredby many Minangkabaubecause they reduced the danger of conflicts between children and sisters' children. In addition, writes Benda-Beckmann,some Minangkabaumay have found making such transfersto be an enjoyableassertionof autonomy,he claims, and to be even when similarresults could be obtainedunderthe rubric preferred offard'id-and even though Islamic law as understood elsewhere would have voided most of these transfersas illegitimate "bequeststo heirs."As in Gayo society, these transferssometimeswere referredto as hiba-wasiyya,48and it may be that designating them as a type of hiba madethemmoreacceptableto jurists. In any case, no objections appear to have been made to these transferson Islamic law grounds; opposition has been entirely from advocatesof adat. As early as the 1850's, lineage memberssued in the colonial courtsto preventdonationsof lands to children.By the 1930's the legal principlehad been establishedthatone could give away "pure" non-ancestral with money derived wealth, thatis, wealth not purchased from working ancestral lands, without the consent of the matrilineal relatives.49Adat leaders continued to oppose these practices, and a
47 Ibid., 324. In Islamic jurisprudenceelsewhere, for certain purposes gifts have been thought of as analogous to bequests, for example, in considering whether a murderermay accept a gift in Shffi'i law, the legal school traditionallyfollowed in Indonesia;see Coulson Succession, 229-30. 48 Benda-Beckman,Property, 277-79. 49 Ibid., 328-31.



formal compromise was reached after independence. In 1952 a conference of Islamic jurists and adat experts resulted in a proposal that landowners give one-third of their non-ancestral property to their sisters' children, dividing the remaining two-thirds according to the rules offard'id. This plan was reaffirmed at a 1968 conference, attended by members of the Indonesian Judges' Association, the IKAHI.50 The latter conference also ratified the earlierfatwds identifying ancestral property as a waqf, and gave to those decisions an Indonesian legal language. The court decisions over this same period recognized the right of parents to donate non-ancestral lands to children, stipulating only that the donation had to be made with the knowledge and witnessing of both party's sisters' children.51 By the late 1960's, then, a formal consensus of jurists coexisted with a wide array of social and legal practices in West Sumatra. In practice, many Minangkabau people donated all their non-ancestral property to children, and were supported in the courts in the rare instances when such donations were challenged. However, the jurists' consensus involved a rule that use of the hiba or hiba wasiyya ought to be limited to one-third of the estate. The idea of a one-third limit, the same limit that appeared later in the Compilation, thus had achieved a general legal acceptance as a public compromise that could avoid social conflict. Conclusions This short conjectural history of the rule on gifts has revealed a complex set of historical processes that have given rise to a set of social norms. These norms have, I argue, given social and moral force both to the rule as stated in the Indonesian Compilation of Islamic Law and the court decisions regarding the limits on giving away one's estate.52 Let me try to recapitulate. In at least some local ways of speaking about transmitting wealth, the Islamic terms hiba and wasiyya are closely linked, and both refer to mechanisms used by parents to ensure that their land goes to whom they wish it to go to, when they wish it, and only if the recipients properly provision them in their old age.
50 Ibid., 324-25. 51 See the account of a 1969 case in ibid., 344-50. 52 We might also ask what a more complete explanation of this gift-limiting rule would look like. It could include local disputes and histories from additional societies, as well as the stories of those "law brokers"who may have transmitted these local concerns to jurists involved in developing the Compilation. It would also include jurists' accounts of writing the Compilation and judges' accounts of applying its provisions in court.



These mechanisms have been attacked, however, on a numberof different grounds. From an Islamic legal perspective, this use of bequests violates well-establishedjurisprudence,and it is consistently disallowed in the courtswhen challenged.The reasonsoriginallygiven for disallowing bequests to heirs were first articulatedby the Prophet Muhammad.These reasons are cited as grounds for limiting gifts as well as bequests.The fact thatbequestsand gifts are sometimesmerged in local ways of speaking gives added plausibility to this line of reasoning. In addition,jurists and judges argue that gifts or bequests made withoutthe consentof the heirs producequarrels,and providean incentivefor potentialgift recipientsto "beg"for extrashares. Given these criticisms, placing limits on both hiba and wasiyya is seen as multiplyadvantageous. These limits preservethe rightsof heirs, ensurefair divisions of estates, and they minimizequarrelsamong they siblings. In the Minangkabaucase, these limits are also viewed as minimizing quarrels between proponents of adat (the advocates of sisters' children)and the proponentsof Islam (the advocates of one's own children).In the end, what appearedas a rule that flew in the face of local social norms and practicesnow looks like it may have grown out of locally-generated concerns.