THE BEGINNING OF LAW AND THE “ADAT RECHT”

I. As far as we know, the law began with the family. The father was the head of
the family, and the orders he gave, the rules of conduct made by him, were
the law.
II. As families expanded and the members went out on their own, the family
group became known as a clan, subject to the rule of the man who was
selected to head it. Eventually, clans in the same area joined forces and
became members of a tribe. They chose a chief to head this larger group.
III. The chief of the tribe made rules or laws to govern the dealings of one clan
with another, but the head of the clan still made the laws for the family group.
If a tribal law was broken, the chief decided the guilt or innocence of the
person accused and fixed the punishment. The head of a clan judged and
determined the punishment for those who broke the rules within his family
group.
IV. Those clan and tribal laws were not written down for countless centuries – we
don’t know how many -, but they were handed down by word of mouth from
one generation to another. Some of them are actually stil in force today. For
example, a man who was a member of one clan could not marry a woman from
the same clan; he had to choose his bride from another clan of the same tribe.
V. In ancient times, there were few property rights. It was considered that God
owned all the land and the members of any tribe who settled on the land could
use it. Farming, hunting and fishing were the main ways of making a living
then, and the tribes moved around a great deal. After a tract of land had been
worked for a few generations, the tribe went on to look for richer soil and
settled somewhere else. Wars of subjugation were avoided whenever possible.
VI. When a tribe moved, the laws of the old land became the laws of the new land.
These laws were changed or new laws were made only as the wanderers found
new customs in new areas – or as the traits of the people changed. Still, the
laws were handed down by word of mouth and not written down because
people had not yet invented writing, even on stone tablets.
VII. In Indonesia, laws of the land date back to the Dutch colonial rule. It was the
Dutch who introduced European laws to the country, then known as the
Netherlands east indies. As early as 1824, there was a concept of separate law
made by the Dutch government. The population was then divided into three
groups as far as laws wre concerned, namely : Europeans, natives and foreign
orientals. Netherlanders living in the indies were subject to the laws for
Europeans; the indigenous inhabitants were subject to the laws for natives,
 whereas the foreign Asians were not subject to either of the above. They were
subject to a separate ordinance.

VIII. During the Dutch colonial rule, the laws for natives were primarily the adat
laws. Snouck Hurgronye, the Dutch Indonesia-arabic scholar and statesman of
the nineteenth century, first pointed out that, since customary practices
among most of the peoples of the archipelago were dominated by the Arabic
word adat, or custom, adat also had legal connotations – so, adat became
‘adatrecht’ in Dutch or ‘adat law’ in English.
IX. Many historians stated that the traits or customs of the people were the basis
of adat law. Though deeply rooted in traditional culture, adat is an
embodiment of the traditional values and morals as well as an expression of
universal values. Today adat law still regulates such aspects of life as marriage,
birth, death, inheritance, and divorce.
X. When speaking of the origin of laws in Indonesia, one must go back to the
period when the Indonesian archipelago was under Dutch colonial rule. The
Dutch brought with them the European system of government and other
aspects of life, and European law was one of them. As has been previously
mentioned, there were separate laws in the country under the colonial
government in 1826. Different groups pf people were subject to different laws.
However, by 1848, there was a start towards codification of the law for the
population along European lines by enacting a police and procedure code for
natives and foreign orientals of java and madura in 1848, and criminal code for
natives in 1872. Thus, even beginning from the Dutch colonial rule, the nature
of the law to be applied to each group of the different groups of peoples living
in in the country was one of the most difficult policy problems in the
Netherlands east indies.
XI. Another factor which is of great siginificance in the study of the origin of law
in Indonesia in the existence of the different ethnic groups in the country. The
various ethnic groups have different cultural backgrounds, values and customs
with regard to many aspects of communal life. For instance, concerning
marriage, the Minangkabau follow the matrilineal system, while the batak
adopt the patrilineal system. In the batak clan system, members of the clan
should assist one another marriage ceremonies, an a certain type of hierarchy
in the marriage organization, such as who should be the speaker, is decide by
custom. The bilateral system is common to most of the regions of Indonesia,
including java and madura, east Sumatra, riau, aceh, etc.
Condensed from :
1. The lawyer, by Luis Kutner
2. Adat law in Indonesia, by Gautama Sudargo
3. Indonesia, 1986 edition
QUESTIONS LEADING TO DISCUSSION
1. How did law begin
2. What was a clan? A Tribe?
3. Who made rules of laws within the clans?
4. Who decided punishment for the guilty in a tribal society?
5. How were the clan and tribal laws handed down?
6. Can you name some clan or tribal laws that are in force today?
7. Do you know of any marriage law that handed down by word of mouth?
8. In the ancient times, whose property was land considered to be?
9. What were the main ways pf making a living in the old days?
10.Why were the laws handed down by word of mouth?
11.Who introduced European law to our country?
12.How many groups was the population of the Indonesian archipelago
divided into at that time?
13.What law was each of these groups subject to?
14.During the Dutch colonial rule, why did the word adat have legal
connotations?
15.Name some adat laws that still regulate marriage, birth, death, divorce
and inheritance.
16.Do you think the Dutch laws use today are always appropriate for
conditions existing now? Can you name some Dutch laws used today
which should be changed to fit present situations?
17.Paragraph IX states that adat is an embodiment of traditional values and
morals. For example, the breaking of the egg in the Javanese marriage
ceremony by the bridegroom and the cleaning of his feet by the bride is
a symbol of a woman’s submission to a man. Can you name other adat
ceremonies that have such traditional values?
18.Paragraph XI states that the different ethnic groups have distinct
culture, and as you know, the traditional culture is the root of the adat
law. What is the ost striking adat law in your ethnic group which comes
from the traditional culture?