Islam and inheritance in Malaya:

culture conflict or Islamic revolution?

DAVID J. BANKS-SUNY, Buffalo

British colonial administration o f Malays sharply distinguished Islam, a religion whose

adherents were bound by a strict legal code, from adat, a vaguely defined series of
customs and beliefs that were somehow non-Islamic.’ The Sixth Article of the Pangkor
Engagement of 1874 is the historical charter for the legal systems adopted in the Malay
states. It states:
that the Sultan receive and provide a suitable residence for a British Officer t o be called
Resident, who shall be accredited t o his Court and whose advice must be asked and acted upon
on all matters other than those touching upon Malay Religion and Custom (Parkinson
1960:323-324).
In theory, this charter placed both Malay religion and custom (adat) under the purview of
Malay rulers. In practice, the Sultans had little access to the legal process. Britain
established a dual legal system in which secular courts interpreted local custom in light of
the principles o f modern English law with the aid o f hierarchical secular administrations.
The secular courts had broad jurisdictions and were the highest judicial authorities in the
states. Religious courts (Shari ’ah courts) heard a limited range of penal and civil cases
involving Malay marriage, divorce, post-marital maintenance, and sacrilegious acts. The
two legal systems interlocked when religious justices (kadhi) submitted religious opinions
t o secular courts in civil cases involving inheritance or division o f property upon divorce,
and when Malays appealed the decisions o f religious courts to secular ones, but their
findings were separate. A secular court could either invalidate or compromise with the

This essay examines the impact o f the Islamic legal tradition on Malay
ideas about the inheritance of property. It concludes that Muslim legal
concepts have been fully incorporated into a Malay framework for the
analysis of society and how i t does and should work. Previous writers
have seen Islam as part o f a conflicting legal cultural dualism which
opposes a harsh, male chauvinist and foreign Islamic law to a general
fund of humane, Malay folk wisdom, implying inherent rural
factionalism and a split peasant legal personality. The essay presents
data from the West Malaysian state o f Kedah to explicate the “typical”
Malay case, in which Islam is said to give a bilateral kinship system a
patrilateral bias. This analysis cites three interdependent factors in folk
ideology which provide rationales for the distribution o f property and
have bases in peasant knowledge o f Islam. The essay finds that Islamic
law is so thoroughly part of Malay life that one may consider Malay
culture part of a Southeast Asian Islamic Great Tradition. It concludes
by exploring reasons for the appeal of legal dualism and discusses
possible changes in Malay ideas about the morality of property
distribution.

Islam inheritance in Malaya 573

 decision o f a religious one. It could use or disregard a kadhi’s findings. Before British rule,
Malay religious officials and their courts dealt with a much wider variety o f cases (Sadka
1968:269-271; Taylor 1937:2-9).’
British recognition o f and support for the Shari’uh courts f‘ulfilled a commitment to
preserve Malay autonomy in religious affairs. The separation of judicial functions also
represented, for British administrators and students of colonial law, something deeper. It
represented a separation between secular and religious streams in Malay culture: between
a secular Malay man and a Malay Muslim. Malays did not conceive o f the separate
jurisdictions o f the two sets o f courts as coterminous with two distinct cultural systems.
This essay develops the Malay view a.nd attempts to show that despite the colonial
heritage o f dual legal administration, Islamic law has become a charter for the
constitution and understanding o f the total Malay peasant social order, having permeated
the social morality o f rural areas such that peasant informants cite it in exegeses of social
customs and beliefs that earlier writers classified as pre-Islamic. This is evidence that the
coming of Islam to Malaya brought about a revolutionary change in Malay social theory
and moral outlook.

legal dualism in Malay culture history

Wilkinson’s essay on Malay “Law” ( 1 908) reflects British scholarly opinion a t the turn
of the present century concerning the origins o f Malay customs and law, In his essay,
Wilkinson contrasts odat perpateh, the. matrilineal codified d o t of the people of Negri
Sembilan, who migrated to southern Malaya from the Minangkabau coast of Sumatra,
with the patrilineal odat temenggong o f the Malay Sultans in the Malay states. He views
the former as the customs o f the cominon people, egalitarian and protective of the rights
of women and family property, and the latter as the result of Islamic influence on the
Hinduized state o f Sumatra and the Malay Peninsula. Both kinds of adut were Malay.
Adat perputeh remained a part o f all IMalay culture as a substratum of humane practice,
distinct from harsh Muslim law. In Wilkinson’s essay, adat temenggong i s autocratic, male
chauvinist, and ultimately alien to the tolerant spirit o f simple peasant folk. Wilkinson
saw the cultural values, mores, and life style of Malay peasants as a congeries of elements
which lacked both the purity o f the adat of the Minangkabau and the stark legalism of
Muslim law.3
R. 0. Winstedt (1961) and W. W. Skeat (1900) were probably the most extreme
exponents o f cultural dualism. They argued that Islam was only a thin veneer lying over
an assortment o f pre-Islamic, Hindu, and pagan belief systems. Their views relegated Islam
to the isolated phenomenological realm of belief. lnfluen tial commentators even saw
evidences o f matrilineal survivals in parts of Malaya outside Negri Sembilan. How else
could one explain the passing o f small estates to widows instead of to children, and the
bequeathing o f special inheritance privileges to daughters (Taylor 1937:8-9)? More
recently, Hooker (1972, 1974) has defined two Malay “legal cultures” which are
separately integrated and sometimes conflicting. Hooker, like previous writers, assumes
that a legal system should be modeled after a cultural system and is so modeled in the
Malay case.4 I suggest, instead, that serious misconceptions about Malay culture brought
about the creation o f the modern Malaysian legal system, with i t s cumbersome paired
religious and secular courts. Nonetheless, the system has come to meet the needs of the
pluralistic Malaysian society. When religious law modifies decisions o f secular courts,
these secular courts come to serve a!; a medium for the articulation of Malay culture and
society with that o f the total Malaysian nation. Had Malaya’s history been slightly

574 american ethnologist

different, one may imagine Malay, rather than Malaysian] secular courts, with Malay
interpretations o f Chinese, English, Portuguese, and Indian religious laws, with separate
religious courts for one or more non-Malay groups to enforce certain dogmas. As it is,
Malaysian secular courts have interpreted Malay culture, including Islam, through the
medium o f English law, while the Shuri’uh courts have jurisdiction in very narrow areas
that are much smaller than the spheres o f society that Islam affects. Separate Councils of
Religious Affairs and kudhis in each Malay state make the leeway o f secular courts even
greater since religious authorities may disagree on legal matters in light of local
experience, ideological commitments, or local custom, which is neither uniform nor
distinguished from Islam.
The unity o f Islam and Malay culture does not depend upon a unified modern legal
system. Over the five centuries since the introduction of Islam in Malaya, Malays have
delicately tuned Islam and i t s laws to the needs of their society as they tuned their
society to Islam. While religious courts rarely enter the life o f the Malay peasant directly,
Islam affects his life most overtly through i t s thorough property law, which may form
part o f litigation in disputes over property. One may explore the incorporation of Islamic
law in Malay culture through an analysis of the principles of property distribution among
Malay peasants. This analysis appears particularly relevant because of the importance o f
land as a traditional source of wealth and prosperity in the lives of rural Malays and
because traditional writings concerning Muslim law and Malay society have stressed a
series o f conflicts between Islam and udut in this area. The data used below illustrate
coherent principles governing the distribution of property among peasants. These
principles are derived from lengthy interviews over a period o f two years. In these
interviews, informants referred back to them on numerous occasions. I did not find
variations in the data which identified special subgroups within the corpus of those
interviewed. These principles represent simple, general truisms. Informants recognize that
ideal principles do not always work out perfectly in actual situations and that people do
not always get what they deserve, but they do not challenge the fairness and justice of the
principles themselves.

the setting

The following data are derived from fieldwork in Sik, a hilly region of the state o f
Kedah, in the northwestern corner of West Malaysia, near the border o f Thailand. Malay
Muslims have inhabited Sik since at least the middle o f the nineteenth century. Many of
the inhabitants o f Sik trace their ancestries to the independent kingdom o f Patani (now
part o f Thailand) and i t s royal family, who were given asylum in Kedah during various
Thai invasions. The low rate o f literacy in Sik before the push for universal education
under the independent government o f Malaya and the lack of locally supported religious
schools make Sik an interesting test case for the study o f the influence of Islam i n a
secular, frontier region o f Malay that i s far from the udutperputeh of Negri Sembilan.
Sik was not made a full district o f Kedah until after World War II, but there has been a
land office there since 1910. There was a mosque i n Sik before then, although informants
say that services have never been well attended. The mosque, located near the small town
of Sik, must have been difficult to reach for large portions of the sparsely populated
district whose inhabitants were spread out along a series o f parallel river courses.
Residents also stayed away from services because they viewed pious prayers and religious
ceremonies as evidence o f transgressions against God’s laws rather than as proofs of moral
superiority. Construction o f a small religious meeting hall near the place of my research

Islam inheritance in Malaya 575

 bogged down for five years despite pressure and incentives from the District Office
because excessive activity on the building committee led to accusations of hypocrisy.
Coastal immigrants to the hills o f Sik said that old residents resisted the establishment of
religious study groups.
The following sections explicate three general principles which Malays use to
understand the distribution o f wealth in Sik. I designate them: The Goodness of Giving,
The Principle o f Male Responsibility, ,and The Fruits of Honest Labor. They are religious
values that provide models for ideal social behavior and a working model of values
concerning property. Informants distinguish each one from the others as separate
rationales for understanding property distribution. Circumstantial factors account for
differences in the relative importance of the principles during given periods. In theory,
the first principle should supersede the second and third, but the facts of life in concrete
situations have made this unlikely, if not impossible. In their explications of actual
practices informants make considerable and free use of Islamic law. These uses are
generally in accord with the broad outlines of law, if not always with details. They
associate Islam with the goodness o f their ideal way of life, and it i s a source of prescribed
action.

inheritance and the goodness of giving

Westerners think o f inheritance as a sum of property that accrues to a living person on

the demise o f either a relative or friend. The Malay conception is quite different,
although, as in the West, the inherited property i s thought to rightfully devolve on the
inheritor. Hurtu pesuku, the Malay term for inherited wealth, i s the material manifestation
of the flow o f nurturant, affective sentiments from parent to child. One should transmit
hurtu pesuku during life and not after death, for it symbolizes the supreme act o f
parental-filial kinship: the establishment of a secure livelihood for one’s own child. Hurtu
pesuku is not one kind o f property. For example, the gathering o f marriage payments
(belunju hungus) to finance a young man’s wedding provides hurtupesuku as does the gift
of land from a father or mother to their child at the time of his marriage. In the past,
when there were unalienated patches o f land suitable for pod! cultivation, fathers paid the
gift of land as shared labor on i t s preparation for tilling. Fathers and mothers also helped
build houses for married couples and helped pay the traditional brideprice (muhr) of $24.
Labor substituted for land and, in effect, created it.
Malay parents should give equally to all o f their children regardless of sex. Each parent
should try to contribute independently to his or her children’s hurtu pesuku, for Malays
have not (at least until recently) had a cultural equivalent of the joint checking account.
Parents do, however, cooperate at the time of a child’s betrothal to decide the form and
the magnitude o f the wealth to be transferred at the time of marriage. The father consults
with his kinsmen and the mother with hers in order to make the final transfers of wealth.
This cooperation, called berpukut, is of short duration, and a kindred forms around each
individual at the time of his or her wedding, bringing together individuals who might not
speak to each other save for this sacred event. The following case illustrates the complex
cooperation that transfers o f wealth create.

Arshad, brother o f Jamilah, raised Jamilah’s son, Aziz. Aziz’s father (Yunus) remarried and had
n o t incorporated his son i n his new household. Aziz stayed with Arshad instead because he did
not like Jamilah’s new husband. When Aziz wanted t o wed, Arshad took the initiative in
arranging the marriage and his wife served as go-between. Arshad, Jamilah and Yunus pooled
resources to arrange a respectable sum for Aziz t o pay his bride’s family (belonjo hangus), and

576 arnerican ethnologist

 for purchase o f a small rubber holding for Aziz. Aziz had two social fathers and two social
mothers. They all cooperated to start him on a viable adult livelihood.

Inheritance gifts are suited to the needs of their recipients. It would not be wise or
useful for a daughter to receive two houses and no land or for a son to receive a house if
his bride-to-be has already been given an adequate one. Parents should try to arrive a t a
viable package for each of their children. This applies to socially recognized biological
offspring and to children that one has simply raised (unuk belu).
There are analogous situations of lesser intensity when cooperation and giving
surround individual life cycles. Circumcisions (bersunut), which take place between the
seventh and thirteenth year, also require small feasts which the parents of all of the boys
circumcised finance. Friends and more distant blood kin contribute work and help during
all life cycle rituals. These less intense, socially sanctioned examples of giving find
justification in the same principle that commends giving and makes it a medium for the
expression of kinship sentiments. A Malay’s primary responsibility is for the support of
his own children and those that he has raised, so other expressions of giving are more
distant.
Malay peasants relate the goodness of giving to the general Muslim concept of sedekuh
or spontaneous giving to others weaker than themselves. Sedekuh is present in a number
of specifically religious contexts. Zukut is the gift of a specified sum of wealth (paid in
pa&) collected for the indigent after the Muslim fasting month. Fitrah i s a gift collected
from all Muslims to enable the poor to celebrate the end of the fasting month. The fast
itself represents abstinence so that the poor may get food at lower prices. Fasting i s not
required of the weak and the ill. Informants describe the services that learned men render
a t family rituals in the idiom of gift giving and repay these services with ritual packets of
food.
Malays emphasize that it i s important to make gifts a t the appropriate time so that
there can be no doubt about the intent to give. Parents should formally transfer title to
lands and properties to prevent disputes, but if they have neglected formal transfer, heirs
should honor the intent of the deceased and divide the wealth according to his
conception of equality. When mutual agreement between heirs is not possible, formal
legal actions commence. In this case, another set o f rules governs the distribution of
property. This set of rules favors males strongly over females, and only socially
recognized biological offspring become heirs (wuris). This kind of inheritance i s usually
painful for all of those subjected to it. In cases of intestacy, a second principle modifies
the principle of egalitarian giving in the determination of rightful amounts.

procreation and the responsibility of males

Children inherit land from those who raise them, that is, their parents. Paternity and
maternity are usually both social and biological. Islam directs parents to take
responsibility for all of the children that they procreate so that all children in society
receive the benefit of some giving and affection. Both sexes are responsible for the care of
children, but, in the area of property, men are more responsible than women. Islam
recognizes greater male responsibility in laws governing the distribution of estates. Malays
do not see these laws, which favor males in the final distributions of estates, as conflicting
with the goodness of egalitarian giving. They indicate instead that the laws take account
of the differences between the sexes and guard against the appropriation of female
property by males. If there were egalitarian division in cases of intestacy, informants say

Islam inheritance in Malaya 577

 that men could not safeguard the property o f their sisters and would appropriate that of
their wives.
Malays dread intestacy because a man who dies intestate cannot amicably provide his
wives and children with property of their own. This fear has increased i n Sik with the
trebling o f the population since the lend o f World War I I . There is l i t t l e remaining
unalienated land available for development. Peasants pass on already productive land, if
they have any at all. Land hunger has enveloped Sik, as it has enveloped rural areas all
over the Malay Peninsula (Swift 1969). When a man or woman dies intestate and his or
her heirs cannot agree voluntarily upon a fair division, they must give the matter over to
the courts for a legal settlement.
Civil courts in rural areas consist o f hearings by an Assistant District Officer, who is
deputed as Settlement Officer for estates. He hears rival claims for the distribution o f the
intestate property and, with the help o f the local kadhi, gives all parties interested in i t s
distribution notices o f his findings. If any one of the heirs does not agree to the set-
tlement at the District Office, he may appeal t o the secular courts (Kedah 1934:Vl, 26-
27). Appeals concern the extent o f the deceased’s estate, since there are usually not
complete documents to indicate the precise extent of his holdings. Potential heirs often
try to seize the property o f deceased relatives, claiming it as their own. Once the courts
determine the contents o f an estate, they distribute it according to formulas set in Muslim
law. The wife o f a deceased male receives not more than one-fourth of his estate if she has
no children and one-eighth if she has. The husband of a deceased woman receives no more
than one-half o f her estate if she has no children and one-fourth if she has. Male children
receive twice the share that female children of the same person receive. These rules have
the effect o f severely reducing the amounts of property that female heirs get. The rules
do not recognize any inheritance right!; for nonblood kin save the spouse o f the deceased.
They accord no inheritance rights to children whom the deceased has simply raised. If
there i s a will (surd wuxiat), it may only affect one third of the estate’s total value.
These prescriptions for inheritance do not stand alone in Muslim jurisprudence as
favoring males over females and in giving a close scrutiny to degrees of blood relatedness.
Genealogical categories which the law recognizes as eligible to act as a child’s guardian
( w d i ) are heavily weighted on the side of males and a presumed male line. F and FF are
first preferences. If neither o f these i s alive or neither fulfills the qualifications that he be
sane, Muslim, adult, male, and upright, the responsibility then moves to male siblings of
one father and one mother, male siblings of one father, male children o f a brother by the
same father, and so forth.
Malays explain these preferences for males in inheritance and ritual contexts by
pointing to the wisdom o f granting men greater responsibility when parents have died and
cannot provide for a sibling group directly any longer. In these unfortunate situations,
informants say that the cruel and harsh facts of life in the real world force them to
sacrifice their egalitarian ideals. They suspect that males outside o f the sibling group will
use marriage as a pretext to get wealth and preferment from female members. The males
of a sibling group are responsible for the care o f i t s females, and Muslim law places more
land in their hands than in those o f Itheir sisters. The law ensures that all members of a
sibling group receive some property. This Malay fraternalism implies that a woman should
only be given property when she has ,$ loyal male kinsman around her to protect it. Some
males are said to abuse the privilege that Islam accords them. Fraternal disloyalty angers
vi Ilagers.
Md. Jiwa’s father, Hashim, had six relong (a relong is .711 acres) of padi land in cultivation. He
gave two relong t o Md. Jiwa, upon the latter’s marriage, and two relong t o Fatimah, his only

578 american ethnologist

 other child. Fatimah’s husband built her a house. Md. Jiwa occupied Hashim’s house with his
mother, his wife and children. He turned part o f the house into a tea shop. Md. Jiwa rented his
two relong to an indigent. Hashim’s wife (Md. Jiwa’s mother) cultivated two felony o f her own
and rented out her husband’s last two relong. When his mother died, Md. Jiwa sold his own two
relong and the t w o relong that his mother rented out. He took the land that she had cultivated
as well. Soon he sold that too. Villagers considered Md. Jiwa e v i l and disloyal t o his sister
because he took more than an equal share of his parents’ estates. I n fact, he took more than the
two-thirds that the kadhi’s ruling would have placed in his possession. He took his parents’
entire intestate property. Fatimah recognized this injustice but she was afraid to complain
because her brother was a violent man and had been arrested for threatening a neighbor with a
knife.

Malays recognize sexual differences in the kinds of property that they give their
children. They give women moveable property and men land when there i s only a small
plot of land between both parents. A woman receives jewelry and other valuables which
she can take with her in case o f divorce. Daughters may also receive houses instead of
land so that they can expel a husband and still have a place to live. The classic case i s that
of the daughter who stays with her parents and brings her husband to live with them,
sacrificing valued privacy for female security. Malay peasants think that houses,
prosperous adjacent orchards, gold jewelry, and increasingly, bank balances are good
wealth for women, while land i s more appropriate for men. The common wisdom is that a
woman who has land will soon l e t her husband sell it in one lump and pocket all of her
wealth.
The symbolism of reproduction suggests that women are weaker and contribute less to
the individuality of offspring than men do. Malays distinguish between two categories of
reproductive stuff: beneh and baku. Beneh is the male, active contribution to heredity. I t
begins as semen and becomes a child. Baku is the nurturant female addition to beneh
during the nine months of pregnancy (see Banks, 1972). Informants speak with some
condescension about the female contribution to heredity and say that it i s not good to
resemble the mother more than the father. In fact, to turun buka (‘come out like one’s
mother’s reproductive stuff’) is a way o f describing a weak nativity. Children who
resemble their mothers are thought to be sickly. Paternal qualities sustain an offspring,
whether it is male or female, while maternal qualities are liabilities. In interethnic
marriages, the psychobiological potential and the cultural traits of the father predominate
over those of the mother. The child of a Chinese male and a Malay female will behave
more like a Chinese than like a Malay even if the Chinese has long lived as a Muslim in
Malay areas.
Women are said to be less benevolent than men in all but very limited spheres as a
result of their physical and reproductive weaknesses. Much like the demonic villains in
Malay folk dramas, Malay women use men to further their small interests. Stepmothers
manipulate their husbands to favor their own biological offspring despite religious
injunctions for equal treatment. Stepfathers, on the other hand, are not predictably good
or bad to stepchildren. Malays say that a stepfather is as good to his stepchildren as one
would expect from his general moral character, for it i s good to give (mengunugeruhi),
and Allah rewards fatherly giving both in this world and the next. The term suuduru
anjing (lit., ‘dog siblings’), or the children of the same woman but different males, refers
to a weak relationship that says more about the weakness of women in society. It i s said
that children of a woman’s current marriage will resent those of previous marriages and
think that these children should look to their own fathers for support.
The above treatment was not meant to portray the Malay female as a hopelessly
oppressed being in a male dominated society, for there i s a rich body o f literature and
lore depicting the independence and self-reliance of Malay women. Malays do, however,

Islam inheritance in Malaya 579

 perceive the differences between the sexes to be great enough to warrant official
recognition o f the responsibility o f males over women and their property. There may be
disagreements over the willingness and ability o f individuals t o carry out the spirit o f the
law, but I have not found Malay informants who perceive a conflict between their udut
and Muslim law concerning property distribution. Indeed, as one perceptive Malay critic
has suggested, the Malay peasant simply does n o t know what is Islam and what i s only
adat o r that there is a difference between them (Mahathir 1962)!
In the above discussion I have shown how Malay custom, enriched by Muslim law,
favors males in the inheritance o f land and other wealth. This inequality is not a
culturally defined hypocrisy as the theorists o f legal dualism implied. Malays recognize it
as a central element in their moral order. The fabled sexual egalitarianism o f Malay folk
culture i s simply a mythical creation o f those who saw simple peasant folk oppressed by
the heavy hand o f Islam. One must look t o one final principle o f Malay social ethics,
which is also supported in religious law, t o understand the extraordinary power o f women
in traditional Malay peasant society, for people do not only inherit property. They create
it.

the fruits of honest labor

Malay traditional values permit a just reward (untong or ‘profit’) for honest labor
(usahu, lit., ‘effort’), and Malays make a clear distinction between such rewards and the
collection ot interest, which is forbidden in Islam. Profit i s the rightful indication o f a
kind of internal piety which transcends prayer and public religious ceremonial displays.
The dangerous and austere life in the wilderness before World War II accentuated the
value o f enterprise in producing fortune and ease o f life in later years. A man could
distinguish himself among his fellows through effort. In coastal regions, powerful and
stable patron-client relations between peasant farmers and local chiefs (penghuhs), who
could demand labor from tillers o f the soil and prevent them from becoming potential
rivals, made the connection between effort and wealth there less direct. I n Sik, when land
could be brought under cultivation by hard labor, cooperation with neighbors, and a
certain amount o f sheer good fortune, the wealthiest men were recognized as village
headmen and were known for miles around.
Some o f the ancestors o f modern villagers accumulated capital through planting rubber
trees when poor communications made it difficult t o sell latex sheets. Others engaged in
more risky enterprises, such as selling jupplies from the coast (like salt and metal items)
t o residents o f isolated areas o f Sik. Villagers measured honest labor by i t s fruits. If a man
worked for a long time and did not have anything to show for it, people assumed that he
had squandered the money away, but if he had a creditably good house, developed land,
and enough padi t o feed his wife and children, he was accorded considerable status in the
village. Today residents point to villagers in their middle years whose parents were not
industrious enough to go into more isolated areas t o develop land. As a result, their
children have become impoverished by modern standards, for by now, land-hungry
peasants from coastal regions have brought most o f this land into use.
Women as well as men engaged in productive enterprises. They developed lands for
cultivation, and some opened small tea shops for extra income. Women also developed
many of the modest, shady, and elegant orchards that dot the landscape. Women did and
s t i l l do most o f the work in the pudi fields from the stage o f the transplanting o f rice
seedlings to the milling and winnowing o f harvested grain. They also did much o f the
work o f maintaining livestock. Few women o f Sik tolerated men who had more than one

580 american ethnologist

wife. Plural marriage was less an indicator of high status than of a personal quirk.
With this strong association o f hard work and just reward, it is not surprising that
bitter disputes arise between divorcing couples over who contributed which parts of the
wealth that they both enjoy as partners. The spouses may bring the case to the District
Office themselves for settlement, or the heirs of one deceased spouse may claim that the
other i s taking more than his just share under the law considering the contributions of
each. i n these cases, the Settlement Officer, with the help of the kudhi, attempts to
delimit the estates o f each o f the parties in the marriage and either divides the property
between them or between one and the heirs of the other. The following case illustrates
some of the complexities involved in estate delineation.
When Tok Latifah’s husband, Lazim, died suddenly of a heart attack, her stepson, Dosa,
expelled her from the family house and the land around it. She took refuge with friends. Dosa
went t o the District Office t o get t i t l e to the properties he seized. The Assistant District Officer
informed Dosa that Lazim’s estate had to be demarcated before he could distribute it. Tok
Latifah claimed that the house and adjacent land were part hers and part her husband’s (horta
syui-ikot). She argued that a wealthy Haji had given her the lumber for the house, when he
boarded with them a decade earlier, i n return for cooking and lodging. She said that her
husband had agreed to the arrangement then and supplied the carpenter to assemble the
lumber. The wood was equal in value to the carpentry, so she reckoned that she owned half o f
the main portion o f the house. The Haji also gave her a kitchen (dupor rumah) as an addition,
and that belonged completely to her since her brother had built that for her. The land, although
registered in her husband’s name, also belonged in half t o her since she had helped clear it and
developed it while her husband was o f f working as a trader. Tok Latifah agreed that her
husband’s natural son, Dosa, was entitled to seven-eighths o f what was left, as his share of her
husband’s estate, b u t she demanded her share, one eighth, also. The parties agreed that the one
occupying the house and using the land should pay the other for the other’s part in the estate
and i n the horta syorikot.

Taylor, one of the traditional commentators on Islam and adut, believed that Malay
recognition of effort in post-marital property acquisition was not Islamic, and that the
Malay term for joint property, hurtu syarikut, was a benign, non-Muslim custom. Taylor
thought that Islam did, however, allow for agreeable settlements of disputes outside of
the courts:
The reason that so many years have elapsed without this confusion (about harrasyarikat) being
cleared u p is that. . .the Muhammadan law, being a religious law, attaches great importance to
agreement among believers. The rules for distribution o f estates of deceased persons are not
meant to be applied rigidly o r even generally but only t o settle disputes which occasionally
arise. Provided that the parties can arrange a compromise they can share the estate in any
proportions they please. Consequently, the country Malays have for many years been in the
habit, and are s t i l l i n the habit, of distributing estates on customary lines while purporting to
foNow Muhuummudun law (Taylor 1937:S.S; italics mine).

None of my informants stated that hurtu syarikut is not Islamic. They pointed out that
both the secular and Shuri’uh courts recognize it. Effort and initial contribution
demarcate shares in joint marital property during the spouses’ own lifetimes and for their
heirs after death. There i s substantial legal precedent for their view. Women may own
property in Islam. They receive a small monetary sum (muhr or mas kahwin) at the time
of the marriage contract, and legal commentators regard this as a symbol of a woman’s
right to reap the fruits o f her own labor (cf. Mahmud Junus 1964:lOS-109). One may
determine the size o f individual shares in jointly acquired property through an
investigation of initial and cumulative investments in labor.

summary and conclusions

This essay has attempted to demonstrate that there is no justification for a distinction
between a culturally defined sphere o f udut and a culturally defined sphere of Islam with

Islam inheritance in Malaya 581

 respect to the principles governing the distribution of wealth in Malay society. The essay’s
general conclusion probably applies to most of the rest o f Maldya, although i t s data come
from the northwestern region o f the peninsula. I have not found, in my fieldwork, data
that suggest that Malays believe that their central social behaviors are non-Muslim,
pre-Muslim, or anti-Muslim. Islamic law is so thoroughly part of Malay life that one may
consider Malay culture as part o f a Southeast Asian Islamic Great Tradition. Islam has so
transformed Malay culture that i t is difficult to find areas o f life that it has not
influenced. This transformation appears to be similar in scope to that which Brahmanical
Hinduism brought to Malaya a millennium earlier. Since Islam was not, as earlier
commentators supposed (e.g., Wilkinson 1908; Winstedt 1961), a mere ideological overlay
on pre-Islamic Hindu and animistic elements, and if later attempts to refine this
perspective (e.g., Taylor 1937; Hooker 1972, 1974) do not adequately reflect the
revolutionary impact o f Islam on rural Malay culture, then one must attempt to explain
the appeal o f these views despite Malay efforts to discredit them.6
The existence of Islam in areas of the Indonesian archipelago with seemingly
antithetical kinship systems explains much of their attractiveness. If Islamic law appeared
to imply a society based upon patrilineal clans, like those in the Middle East, a model of
society composed o f conflicting value systems made sense when one found Islam in
societies without clans or with matriclans. Colonial governments based policies of rule
upon these hypothetical internal conflicts within matrilineal arid bilateral Southeast Asian
indigenous societies. The Dutch quelled the Minangkabau war for Independence (called
Perang Puderi) in 1831-1834 by separating the Muslim reformist leaders of the revolt
from the adat chiefs o f matrilineal descent groups. Similarly, the Dutch isolated
traditionalist from reformist Muslim factions to quell the longer uprising in Acheh, which
lasted from 1870 to 1898 (see, especially, Muhamad Radjab 1964 and Reid 1969). The
refined development o f the policy of identifying political factions with cultural units
within local societies found i t s fullest expression during the Acheh Wars through the
policies of the renowned Islamic scholar, C. Snouck Hurgronje, but probably goes back a t
least as far as the Java War of 1825-1830. In each of these violent episodes in the history
of Dutch colonial rule in Java, Islam symbolized male solidarity and the ability to change
sodalities for religious studies into armies for the overthrow of foreign rule. The Dutch
encouraged social forces in local communities that would weaken male solidarity and the
potential for holy war @had). In all three of the Dutch experiences with religious revolt,
the ethnic groups involved were thoroughly Muslim, although Islamic law received
different interpretations in each area. I n each case, the leaders of the revolts sought to
reinterpret Islam and i t s implications for their societies SO that these societies might
better meet the challenge o f the West. For the colonials, indigenous political factions
were expressions o f deep cultural conflicts.
I n Malaya, too, colonial rulers perceived Islam as a threat to efficient rule. They, too,
feared bloody revolts and sometimes had to suppress them (the Naning disturbances of
the early nineteenth century, the Pahang Rebellion o f 1888, the To’ Janggut Uprising of
1915). They recognized and isolated Islam as a separate sphere of law. One notes a bias in
favor of udat and opposed to Muslim legalism in the writings of the major commentators.
British administrators opposed the influence of Jslam in legal settlements concerning
property. They opposed Islamic principles in part because they f e l t that British property
law was fairer, but they also feared that Muslim principles of property inheritance, with
their male favoritism, would create concentrations of wealth in rural areas (see Taylor
1937:13). The grounds for this fear are unclear, since folk wisdom and field experience
suggest that women’s property claims received considerable recognition before, during,

582 american ethnologist

and after British rule. In fact, Malay Shari’uh judges were often more concerned than
parallel Malay civil officials with the rights o f women (Taylor 1937:13). Nonetheless, the
view of Islam as a patriarchal religion has led some influential students of Malay culture
to dismiss such de fact0 protection of women’s rights as casuistry (de Josselin de long
1960).
Modern Malay society is experiencing radical pressures for change and progress. The
Malaysian government encourages Malays to enter the urban sector and provides
incentives for them to do so, identifying progress and success with education, wage labor,
and bureaucratic livelihoods. In this campaign, the government reminds peasants that
Islam provides a progressive source o f adot that is usable in rural and urban areas. These
currents for change date back to the early decades o f the present century when Malay
nationalists (Kaum Muda) attacked their traditional elite (Kaum Tua), which consisted o f
religious authorities and hereditary nobility, for perpetuating a cultural and social system
that prevented the kind of economic cooperation and accumulation that Malays needed
to compete actively in developing their country. They urged a return to the spirit of the
Qu’ran and the Hadith (traditions derived from the life of the Prophet) as well as the
development of the principle o f /?tihod, the application of learned opinion to modern
social situations based upon the spirit of traditional sources o f law (Roff 1967:56-60).
These trends have brought about some changes in the application of principles of
property distribution among modernist Malays in Sik on the grounds that these changes
conserve the spirit o f the old values. The most noticeable of these changes has been the
establishment of several cooperative businesses: a taxi service and shops licensed to
purchase rubber. In the past, formation of such interest-earning corporations would have
been disdained as haram (‘forbidden’). Perhaps in more basic defiance of traditional
practices, modernist villagers have openly challenged the rule that all children receive
equal amounts o f property at the time of marriage. Instead, they have argued that some
of their children are unfit t o inherit complicated businesses. They prefer giving the
control o f their property to one and asking him or her to provide for the others. Some
residents criticize the new acceptability of mutual benefit corporations and say that the
newly wealthy are greedy and exploitative. The local opinions concerning changes in
inheritance patterns appear more favorable. One may explain this in part because land has
become so scarce that it has become increasingly difficult to provide for each child
separately and equally and partly because they recognize that a business divided or
incompetently managed is soon no business at all. Others regard unequal inheritance as
sinful and hypocritical. The government has given i t s support to a modified form of
primogeniture in i t s Federal Land Development Authority schemes.
I n light o f the drastically lower real incomes of the predominantly rural Malays than
Chinese in modern Malaysia (Malaysia 1973:3-4), it would appear that some form of
moral revolution will be necessary to increase Malay productivity and prevent the endless
fragmentation o f productive land. One may envision such a revolution within the moral
community of Islam, making use o f Muslim values and ideals. In this case, as in the past,
Islam would not oppose adat, but would be a vehicle for the radical transformation of
society.
Finally, Muslim jurisprudence has traditionally recognized a distinction between
religious law as a pure legal system and adat or local customs surrounding the law. In
studies of the Muslim societies o f Southeast Asia, scholars have made a distinction
between a civilization o f Muslim law and a civilization of adat. I have argued that these
societies have thoroughly assimilated Islamic law to a general fund of knowledge and
customs much as did societies in the Middle East and India. One may hope for more

Islam inheritance in Malaya 583

 studies of the ways that macro- and micro-areas around the Muslim world have
interpreted and reinterpreted their ways of life since the introduction of this ecumenical
faith.

notes

‘The adairecht school, associated with Dutch rule i n Indonesia, developed a similar perspective.
This school i s associated with Dutch rule in Indonesia and the writings o f C. Van Vollenhoven, B. Ter
Haar and, most importantly, C. Snouck Hurgronje (e.g., Ter Haar 1948). The continuing influence o f a
somewhat modified form o f adatrecht ideas i s shown i n the many works of C. Geertz (e.g., 1960,
1973) and other exponents o f his views (cf. Siege1 1969). The essential tenets o f the school s t i l l
profoundly influence jurisprudence in modern Indonesia (see Lev 1972: 190). Although this treatment
confines itself t o the Malay Peninsula, i t s findings would appear t o provide an alternative approach for
culturally related areas.
2The modern Administration o f Muslim Law enactments in the Malay states are vague on the
details o f administration o f the bulk of cases for which kadhis provide opinions. The enactments
confine themselves to statements about the general powers o f religious bodies and delineation of
punishments for the grossest violations o f Muslim morality (Mackeen 1969:45-57; cf. Kedah 1934:11,
13,22-27, Ill, 389-390, VI, 22-29).
31nterestingly, less scholarly writers than Wilkinson accepted the revolutionary significance of
Islam in Malay peasant l i f e more fully than he did (e.g., McNair 1878:222). lsabella Bird suggested,
during her brief stay in the Malay states, that Malay sultans used the British recognition of a separate
adat t o justify legislating in areas that the colonials would have preferred to arrogate t o themselves,
leaving a system o f law that was muddled and cumbersome (Bird 1967:237-238). However, well
before the close o f the nineteenth century, the conflict view o f the relationship between adat and
Islam was thoroughly respectable (cf. Cameron 1965:332-333).
4As a result, Hooker has become involved in a series of arguments concerning the origins of and
precedents for trends in recent religious court rulings. Not surprisingly, he concludes that some
decisions of the Shori’oh courts are not based upon sound Muslim precedent and that some secular
court decisions are not based upon adat (cf. Hooker 1974).
’The standard work on Shafi’i jurisprudence (Malays are Shafi’i Muslims) i s Nawawi’s Minhaj e t
Talibin (1914), but I have also used other works f o r insights: Abubakr (1965), Ahmad lbrahim (1962,
1965, 1968), Mahmud junus (1964), and Salayan (1964). These works combine traditional sources of
law with examples relevant to modern problems of the Malay world. I have also found the following
three works by Western authors o f great value: Gibb and Krarners (1965), Hughes (1896), and Levy
(1965). Fieldwork for this essay was carried out from 1967 to 1968 on a grant from the National
Institute o f Mental Health. I gathered supplementary materials in the summers o f 1971 and 1974
with the aid of a grant from the Research Foundation o f the State University of New York.
6Several Malay authors have represented the case that Malay society i s thoroughly Muslim. Among
them, perhaps Mahathir bin Mohamed (1962, 1970) is the most notable. He has written extensively on
Malay peasant society in Kedah and the economic problems o f peasant life. Shahnon Ahmad (1966,
1972) has written a dramatic novel about peasant l i f e in Sik from the same perspective.

references cited
Abubakr, J.H.
1965 Seluk-Beluk Agama. 2 vols. Medan: Saiful.
Ahrnad, lbrahim
1962 The Status o f Women in Family in the Federation o f Malaya, Malaya, Singapore and the
Borneo Territories. Background Paper ‘B.’ Prepared f o r the United Nations Secretariat for the
Seminar on the status o f women in family law. Tokyo.
1965 Islamic Law in Malaya. Singapore: Malaysian Sociological Research Inst.
1968 Islam and Customary Law in the Malaysian Legal Context. ln Family Law and Customary
Law i n Asia: A Contemporary Legal Perspective. David C. Buxbaum, Ed. The Hague: Martinus
Nijhoff. pp. 108-145.
Banks, David J.
1972 Changing Kinship in North Malaya. American Anthropologist 74:1254-1274.
Bird, lsabella L.
1967 The Golden Chersonese and the Way Thither. Kuala Lumpur: Oxford University Press.
(Original ed. 1833.)
Cameron, John
1965 Our Tropical Possessions in Malayan India. Kuala Lumpur: Oxford University Press.

584 american ethnologist

Geertz, Clifford
1960 The Religion of Java. Glencoe, IL: The Free Press.
1973 The Interpretation o f Cultures. New York: Basic Books.
Gibb, H. A. R., and J. H. Kramers, Eds.
1965 Shorter Encyclopedia o f Islam. Ithaca, NY: Cornell University Press.
Hooker, M. B.
1972 Adat Laws in Modern Malaya. Kuala Lumpur: Oxford University Press.
1974 Adat and Islam in Malaya. Bijdragen T o t de Taal-, Land- en Volkenkunde 130(1):69-89.
Hughes, Thomas Patrick
1896 A Dictionary of Islam, being a cyclopedia of the doctrines, rites, ceremonies and customs,
together with the technical and theological terms of the Muhammadan religion. London: W. H.
Allen.
de Josselin de Jong, P. E.
1960 Islam versus Adat in Negri Sembilan (Malaya). Bijdragen T o t de Taal-, Land- en
Volkenkunde 116:158-201.
Kedah, State of
1934 The Laws o f the State o f Kedah. 5 vols. Alor Star, Kedah: Kedah Government Press.
Lev, Daniel
1972 Islamic Courts in Indonesia. Berkeley: University o f California Press.
Levy, Ruben
1965 The Social Structure o f Islam. Cambridge: Cambridge University Press.
McNair, J. F.
1878 Perak and the Malays. London: Tinsley.
Mackeen, Abdul Majeed Mohamed
1969 Contemporary Legal Organization i n Malaya. Yale University Southeast Asia Studies No.
13. New Haven: Yale University Press.
Mahathir Mohamed
1962 Interaction/Integration. lntisari 1 (3):37-44.
1970 The Malay Dilemma. Singapore: Donald Moore.
Mahmud Junus
1964 Hukum Perkawinan dalam Islam. Djakarta: Pustaka Mahmudiah.
Malaysia
1973 Mid-Term Review o f the Second Malaysia Plan, 1971-1975. Kuala Lumpur: The
Government Printer.
Muhamed Radjab
1964 Perang Paderi. Djakarta: Balai Pustaka.
Nawawi, Mahiudin Abu Zakaria Yahya ibn Sharif en
1914 Minhaj e t Talibin. London: W. Thacker.
Parkinson, C. Northcote
1960 British Intervention in Malay, 1867-1877. Singapore: University of Malaya Press.
Reid, Anthony
1969 The Contest for North Sumatra, 1858-1898. Kuala Lumpur: Oxford University Press.
Roff, William
1967 The Origins o f Malay Nationalism. New Haven: Yale University Press.
Sadka, Emily
1968 The Protected Malav States. 1874-1894. Kuala Lumpur: Oxford University Press.
Salayan, Abdul Wahid
1964 lchtisar Hukum Islam. Padang, Indonesia: Penerbit Mimbar.
Shahnon Ahmad
1966 Ranjau Sa-Panjang Jalan. Kuala Lumpur. Penerbit Utusan Melayu.
1972 No Harvest by a Thorn. Kuala Lumpur: Oxford University Press. (Translation of Ranjau
Sa-Panjang Jalan by Abidah Amin.)
Siegel, J. T.
1969 The Rope o f God. Berkeley: University o f California Press.
Skeat, W. W.
1900 Malay Magic. New York: Macmillan.
Swift, M. G.
1969 Capital, Saving and Credit in a Malay Peasant Economy. ln Capital, Savings and Credit in
Peasant Societies. R. W. Firth and B. S. Yamey, Eds. Chicago: Aldine. pp. 133-156.
Taylor, E. N.
1937 Malay Family Law. Journal of the Malayan Branch o f the Royal Asiatic Society 15(1):1-78.
Ter Haar, B.
1948 Adat Law in Indonesia. New York: Institute o f Pacific Relations.
Wilkinson, R. J .
1908 Introductory Sketch. Law. Part I. Papers on Malay Subjects, 1st Series. Kuala Lumpur:

Islam inheritance in Malaya 585

 Government Printer.
Winstedt, R. I.
1961 The Malay Magician. London: Routledge and Kegan Paul. (Original ed. 1925.)

Date of Submission: July 23, 1975

Date of Acceptance: August 29, 1975

586 american ethnologist