Adat Law in Indonesia

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ADAT LAW in INDONESIA
ADAT L A W
IN
INDONESIA •i
by
B. T E R HAAR
TR AN SLA TED FRO M T H E D U T C H
E d i t e d w ith a n I n tr o d u c tio n b y
E. A D A M SO N HO EBEL A. A R T H U R S C H IL L E R
Associate Professor o f Anthropology Associate Professor o f L aw
New York University Columbia University
I
B H R A T A R A — 1962 — D J A K A R T A
P U B L IS H E R ’ S NO TE
There is much need of L a w books for students o f

the Faculties o f L a w in Indonesia and other related
schools. B. T e r Haar’ s Beginselen en Stelsel van het Adatrecht
is still one of the basic books on L a w in Indonesia.
Aside from their national language, however, presentday
Indonesian students read English rather than Dutch.
In view of this, the Publisher considers the repub

lication of B. T e r Haar’ s A dat Law in Indonesia o f much
help to them. T h e Publisher considers the English edition
also more valuable because its editors and translators,
Prof. E. Adamson Hoebel o f N ew York University and
Prof. A. Arthur Schiller o f Columbia University, have
provided the text with an illuminating scholarly introduc
tion.
Only a few minor changes have been made in the
text in view of the changes in Indonesia which have oc
curred since 1948, the date of the first publication o f
the English translation. This edition has been published
in Indonesia with the permission of the copyright-owner,
Prof. A. Arthur Schiller, to whom we express our thanks.
M ay this book be useful for students and all who

are interested in Adat Law.
Djakarta, January 1 9 6 2 .
?
* *
’V.*
------------------------------ ------------- 'l
FÀK. HUKUM dan PENG. MÁSJ.
Tanggal ^
N o . S ilsila h :.......... ..................................

PREFACE
T H E present work is a translation of the major part of a book with the

title Beginselen en Stelsel van het Adatrecht the D utch jurist B. ter H aar
and published by J.B. Wolters, Groningen and Batavia, in 1 9 3 9 . It is
offered, with an interpretative introduction,* as an authoritative study o f
the law of the native peoples of a society which, although on the brink of
entering into modem world civilization, has retained much of its traditional
life and thought. The inner development of that society, and not least its
system of public and private law, has of late become a m atter o f world
concern. Already questions have been raised as to the extent to which the
formation of national governments and the growth of nationalist attitudes
in the Western Pacific and in Southeast Asia will affect the relative status
of Eastern and of Western law. No one is as yet in a position to anticipate
the outcome of the present struggle between two conflicting tendencies:
on the one side, the desire of political leaders to assert the equivalence
of the indigenous culture, hence also of the old-inherited legal concepts
and practices, on the other side the desire to bring the internal economics
and social development of their respective countries as rapidly and as
fully as possible into harmony with the demands of the attained or desired
statehood and of participation in the rising structure of international
collaboration. Therefore, although some of the laws and usages described
in this book no doubt are destined to die, it is especially important that
students of government and administration in lately dependent areas— and
all who are interested in international relations as they affect these areas —
should possess an accurate picture of the present state of the indigenous or
“ adat” law, and some knowledge of its development, especially in recent
times. It may be claimed, then, that this work, although originally published
in the Dutch language almost a decade ago, has a special timeliness now
that the internal government of a large part of Indonesia is in process of
change.
*) Professor Hoebel is in the main responsible for the opening sections on
’ ’Ethnological Background” and “ L a w in the Native Culture” , while Professor
Schiller assumes full responsibility for the third section on " T h e Place o f Adat
L a w in the Legal System ” .The revision o f the translation is the joint effort o f the
two editors.
VII
VIII PREFACE
The Southeast Asia Institute, which is sponsoring this publication,

is grateful to the Indisch Instituut of Amsterdam, Holland, which has
obtained permission for it from the estate o f the original author, to the
Coolidge Foundation and the Netherlands Inform ation Bureau which have
made the work financially possible, and to the translators George C.O. Haas
and Margaret Hordyk, and the editors whose conscientious labors on it
once again demonstrate the value o f collaboration by representatives o f
different disciplines in the task o f social interpretation.
A d r ia a n J. B a r n o u w
President, Southeast Asia Institute
New York, Nov. 1, 1947
NOTE
As a result of the decision taken by the officers and mem bers o f the
Southeast Asia Institute in June 1948 to dissolve the organization and
merge with the recently-established Far Eastern Association, arrangements
have been made with the International Secretariat o f the Institute of
Pacific Relations to publish and distribute this book. T h e International
Secretariat of the I.P.R. is glad to be able to render this assistance in making
available an important study that is related to other works on Southeast
Asia in the I.P.R. research program. I t should be noted, however, that
responsibility for all statements of fact or opinion in the book rests solely
with the authors.
W. L . H olland
Secretary General
Institute of Pacific Relations
August 1948
CONTENTS
PAGE
I n t r o d u c t io n ........................................................................................................................... 1
I. Ethnological B ackground....................................................... 1
II. Law in the Native C ulture......................................................... 5

A. Adat L a w ...................................................................... 5
B. Law A r e a s ...................................................................... 6
III. The Place of Adat Law in the Legal System................... 11

A. Legal Classification of the Ethnic Groups. . . . 11
B. Government Policy and Dualism in the Law. . . 12
C. Government and Native Administration of Justice. . 15
1. Government Administration of Justice.................... 15
a. In Directly Governed Territory. . . . . . 15
b. In Self-Governing Lands................................... 22
2. Native Administration of Justice......................... 23
a. In Directly Governed Territory......................... 24
b. In Self-Governing Lands................................... 25
3. Village Ju stice ............................................................ 26
4. Religious J u s tic e ....................................................... 28
5. S u m m a r y ................................................................. 30
D. The Constitutional Basis of Adat Law........................ 34
E. Encroachments upon the Adat Law............................. 35
1. S t a t u t o r y .................................................................. 35
2. Voluntary Acceptance of European Law . . . 37
3. Change of Ethnic Status......................... ..... 40
4. Rules Contrary to Generally Recognized Principles
of Equity and Justice............................................. 42
5. S u m m a r y ................................................................. 44
IV. The Scope of the Volume...................................................... 44
A u t h o r ’s P r e f a c e ................................................................................. 48
IX
X CONTENTS
PAGE
Chapter I. Social Organization....................................................... 53
A. The Community and Society........................................ 53
1. Territorial and Kinship Factors.............................. 54
2. Social Classes............................................................ 61
3. Status of Aliens....................................................... 63
4. The Formation of New Communities.................... 64
B. Special F o rm s ................................................................. 65
1. Non-localized C l a n s .............................. . 65
2. Localized Clans ................................................. 67
3. Regional Communities of Mixed Clans. . . . 67
4. Patrilocal Clans .................................................. 71
5. The Localized T r ib e ............................................. 72
6 . Territorially-based T r i b e s ................................... 74
7. Territorialized Kinship-based Communities. . . 75
8 . Kinship-based Communities Transformed by
Alien P o w e r............................................................ 76
9. The gaukang........................................................... 76
10. The Balinese d e s a .................................................. 77
11. The Javanese d e sa .................................................. 78
12. The Territorially-based Community in Atjeh. . 80
13. Additional Territorially-based Communities. . . 80
C. The Role of the P r in c e s .............................................. 81
D. The Status of Merchants and Traders.......................... 84
E. The Influence of Princes and the Dutch Administration
on Communal L i f e ....................................................... 85
C hapter II. Land Rights ............................................................ 89

A. Land Rights and the C om m unity .............................. 89
I. Intra-communal Rejkj[ i o m ..................................... 89
2. £to-C om m unal R e la tio n s .................................. 95
3. Duties of Chieftains.................................................. 97
4. The Function of the Rightof Disposal. . . . 97
5. The Dual Area of Disposal................................... 98
6. Delimitation of the Area of Disposal.................... 99
CONTENTS XI
PAGE
7. Means of Protection of Communal Areas of Dis
posal ........................................................................ 99
8. Legislative Ignoring of the Right of Disposal. . 100
9. T e rm in o lo g y ............................................................ 100
10. The Supervisor of Lands........................................ 100
11. The Inalienability of Lands.................... •. . . 102
12. The Personalization of the Right of Disposal. . 102
13. The Effect of Superior Authority........................ 103
B. Rights of Individuals in Land......................................... 104
1. Individual Rights in the Legal System of the Com
munities ............................................................................ 104
a. The Native Right of Possession..................... 104
b. The Right of U sufruct.................................... 105
c. The Right of P re fe re n c e ................. 105
d. The Right of Exclusive Option . . . . 106
e. The Right of an Official to Land Income. .106
f. The Right of U tiliz a tio n ................. 107
g. The Rights of Pledging and Prepaid Rental.107
2. Individual Rights in the Legal System of the Prin
cipalities ............................................................................ 107
a. The Princely Domain........................................ 107
b. Appanage and Possession of Land.................... 108
3. Individual Rights in the Legal System of the Dutch
G o v e rn m e n t............................................................. 109
C hapter III. Land Transactions......................................................... Ill
A. The Founding of Villages.............................................. Ill

B. Land Reclamation by Individuals...............................113
1. General P rin cip les................................................... 113
2. Secondary Legal Consequences............................... 114
C. Bilateral Land Transactions within the Communities 115
1. General F e a tu r e s ................................................... 115
2. The Cooperation of Chiefs.................................... 116
XII CONTENTS
PAGE
3. The Nature of Transferable Property. . . . 117
4. Reasons for Land Transactions.............................. 118
5. Part Payments on L a n d ......................................... 118
6. When is the Transfer Com pleted?.................... 118
7. Deferred O c c u p a tio n .............................................. 119
8. S a k s i ......................................................................... 119
9. Differences Between the Pledging and Sale of Land 119
D. Forms of Bilateral Land Transactions........................... 120
1. Land P le d g in g ......................................................... 120
a. T e r m in o lo g y .................................................... 120
b. The Powers of the P l e d g e s ..........................121
c. Duration of Land Pledges............................... 122
d. Minimum Limits for Redemption.................... 123
e. Upkeep of Pledged L a n d ...............................123
f. Lump R e p a y m e n t ......................................... 123
g. Local Variations . . ................................ 123
2. The Sale of L a n d .................................................... 124
a. Rights of a Bona Fide Purchaser . . . . 124
b. Public S a l e .........................................................125
c. Local V a ria tio n s.............................................. 125
3. Prepaid Rental of L a n d .......................................... 126
E. The Allocation of Land as Independent Property. . 126
F. Land G i f t s ......................................................................... 126
G. The Assignment of Land by Partition.....................127
H . T h e ‘Documentation of Land Transactions. . . . 127
I. L.and Transactions with Outsiders.................................... 128
Chapter IV. Obligations Involving Land......................................... 130
A. Sharecropping.................................................................. 130
1. General C h a ra cte ristic s........................................ 130
2. Extent of Sharecropper Relations.........................132
3. Srama and p l a i s .................................................. 132
4. Breach of C ontract.................................................. 133
B. S e w a .................................................................................. 133
CONTENTS XIII
PAGE
C. The Association of Sharecropping and sewa with
Pledging and Prepaid Land Rental...............................134
D. The Pledging of Land as Security.................................... 135
1. Giving of Security by Private Agreement. . . 135
2. Officially Witnessed Security Transactions. . . 136
3. Adat Distinctions between Sharecropping Based
on Land-Pledging and Loans on Land Security. 136
E. Fictional Transactions........................................................ 137
1. On L a n d s .................................................................. 137
2. As Security................................................................. 138
F. Co-residents and Residents.............................................. 139
G. Permission for the Free Use of Land..........................139
C hapter V. Obligations........................................................................ 141
A. Rights in Houses, Crops, Cattle and Material Goods 141
B. Credit Transactions, Mutual Aid and Reciprocity 144
1. Credit Transactions...................................................144
2. Mutual Cooperation.................................................. 145
3. Group Exchange of Goods....................................146
4. Reciprocal A i d ........................................................146
5. Specialized Assistance.............................................. 147
C. Associations....................................................................... 147
1. Cooperative Societies.............................................. 147
2. Sharecropping as Partnership.............................. 149
3. Profit-sharing.............................................................149
D. Individual Credit Transactions.........................................150
1. D is tin c tio n s ............................................................. 150
2. Liability for the Debt of Another......................... 150
3. Labor A g re e m e n ts.................................................. 151
4. Commission Contracts..............................................152
5. Old-age Care Agreements....................................... 152
E. Fraud on Creditors............................................................. 153
F. The Binder; the Tangible Token.................................... 154
1. Contractual Binders................................................... 154
XIV CONTENTS
PAGE
2. Engagement P r e s e n t s ................................................ 155
3. Other F o rm s ................................................................ 156
4. Prohibitory S y m b o ls ................................................ 157
5. D o c u m e n ts ................................................................ 157
6. Royal T okens............................................................... 157
Chapter VI. Endowed F o u n d a tio n s /..................................... ..... 159
A. T h tw a k a p ............................................................................. 159
B. Secular Foundations.......................................................... 160
C hapter VII. The Law of Persons..................................................... 162
A The juridical Personality of A ssociations..................... 162
B. The Legal Powers of Natural Persons........................... 163
C hapter V III. The Law of Relationship............................................... 166
A. The Child-parent Relation........................... . 167
B. Child and Kin-Group Relations.................................... 169
C. The Care of Orphans......................................................... 173
D. Adoption ....................................................................... 174
C hapter IX. Marriage Law.................................................................. 179
A. Marriage ................................... .................................... I 79
1. Preliminaries to Marriage......................................... 180
a. Marriage by P r o p o s a l.................................... 18 q
b. Marriage by E lo p e m e n t................................ 183
c. Marriage by Abduction.................................... I 84
2. Marital Forms . . . ......................... jg 4
a. B ride-price........................................ 285
b. Suitor Service . .............................................. 190
c. Exchange M a rria g e ............................................ 191
d. Continuation Marriage (Sororate).....................191
e. Substitution Marriage (Levirate).....................191
f. Matrilineal M arriage.........................................192
g. Adoptive M a r r ia g e .........................................192
3. Child M a rria g e........................................ ..... , 193
4. P o ly g y n y ................................................................. 194
5. Influences of Islam and Christianity on Marriage
L a w ............................................................................ 194
CONTENTS IV
PAGE
B. Divorce , t , .............................................................. 197
1. Divorce in Adat Law.............................................. 197
2. The Influence of Christianity and Islam on
D i v o r c e ....................................................................200
3. Mohammedan D ivorce...............................................201
a. The talaaq. ' ..................................................... 201
b. The c h i d ' ....................................................... 201 '
c. The ta 'lie q ........................................................202
d. The f a s c h .......................................................203
4. Christian Divorce Law.............................................. 204
5. Consequences of Divorce......................................... 205
C. Marital P ro p e rty ....................................................„. . 205
1. Inherited P ro p e rty .................................................... 206
2. Personally Acquired P ro p e rty ............................... 207
3. Marriage Property Held Jointly by Husband and
W i f e .........................................................................209
4. Property Presented to Married Couples Jointly. . 213 *
C hapter X. Inheritance................................................... . . 214

A. T he Undivided Estate.................................................215
B. Settlement of Property during Life and by Testament. 220
1. Inter vivos Settlement.............................................. 220
2. Last Wills.................................................................. 222
C. Distribution of the Estate (Intestate Succession). . 223
D. H e i r s ................................................................................ 224
E. Component Parts of the Estate..................................... 228
1. Extended Family Property.........................................229
2. Property of Special Value.........................................229
3. Household G o o d s................................................... 229
4. Communal P r o p e r ty ............................................... 230
5. Designated P r o p e r ty .............................................. 231
6 . D e b t s ........................................................................ 231
C hapter XI. The Law of Delicts.................................................... 234

A. D e f i n i t i o n .........................................................................234
XVI CONTENTS
pa g e
B. Indonesian Terminologies . . . 236

C. Social Reaction............................... 237
D. Relation to Statutory Criminal Law 239
C hapter X II. The Tim e Factor in Adat Law 242
A. T he Indonesian Concept. . . 242
B. Judicial D ecision.......................... 244
C. „Limitations” ............................... 245
C h apter X III. Legal Terminology..................... 246
A. Interrelation of Dutch and Indonesian Concepts 246
B. Effectiveness of Indonesian Legal Terminology 248
P"
C hapter XIV. Precedent and the Judge. . . 251
A. Precedent in Adat Law. . . . 251
B. T he Task of the Judge. . . . 251
C. M e th o d o lo g y ............................... 256
r
C hapter XV. Adat Law Literature.................... 257
A. Contributions of van Vollenhoven 257
B. Case Law......................................... 260
C. Studies on Adat Law Areas. . . 261
1. Comprehensive Legal Studies 261
2. General Ethnologies............... 263
3. Specialized Legal Studies. 264
4. Periodical Literature. . . 266
D. Studies on Adat Law Topics. 268
E. Adat Law P o l i c y .........................
271
G eneral I n d e x
273
G eographical I ndex 278
IN T R O D U C T IO N
by E. Adamson Hoebel and A. Arthur Schiller
I. ETHNOLOGICAL BACKGROUND
INDONESIA’S ID EN TIT Y is geographical, but not political. For,

the archipelago that stretches for some four thousand miles across the
southwestern Pacific includes not only the present Republic of Indonesia
but also the Philippines, British Borneo, and Portuguese Timor. Eth-
nologically speaking, it is part of Malaysia, sharing with the indigenous
peoples of the Malay Peninsula a common origin and, in large part, a com
mon history. Nevertheless, the name Indonesia has assumed political sig
nificance. Henceforth, this new political meaning will attach to the term
Indonesia in literature and public discussion. But it should never be
forgotten that this limitation of its use is arbitrary from the stand
point of fundamental reality. The present work, first published in
1939, is concerned primarily with the adat law of the Netherlands East
Indies, but the author was well aware of the close connection of the adat
within that dependency to the customary beliefs and traditions, as well as
the law, of a much larger region.
It was inevitable that, this common background notwithstanding,
Dutch ethnologists and historians have restricted most of their systematic
studies to the territories under Dutch rule, while American social scientists
have tended to isolate the Philippines for intensive investigation, and
British scholarship has led the way in the scientific exploration of Malayan
and Bornean societies. The inclusion in the present study of West New
Guinea is for administrative purposes and is Papuo-Melanisian in character.
It was no part of Dr. ter Haar’s purpose to show how Indonesian
concepts of law and legal practices arose out of, or are connected with,
other parts of Indonesian culture. For, his work was originally addressed
to law students in the Netherlands Indies who had at their disposal a large
literature, in the Dutch language, on every aspect of Indonesian culture.
Nevertheless, he shows in several places that the Indonesian law-maker
1
2 ADAT LAW IN INDONESIA
and jurist no more operates in a social void than does his counterpart in
Western society. There are, indeed, important local differences in the adat
which can be traced both to historical tribal experiences and to the peculi
arities of living and social organization produced by different environments.
As among all island peoples, and peoples occupying regions broken up by
mountains and marshes into separate areas of settlement, the ethnographic
differences often are striking. The extraordinary fertility of parts o f Java,
and of other islands, due to the age-long deposist of volcanic m aterials,
in itself must needs make for different degrees of density of occupation
and of social cohesion.
These and other factors making for relative isolation should not,
however, be exaggerated. Another natural factor, the unusual extent o f
coast line in proportion to surface area, has given rise to a high degree of
skill in navigation and, hence, much intercommunication between the
different island peoples. And this communication has helped to lift the
beliefs and usages out of the narrow grooves of immediate experience to
consciousness of higher, all-embracing laws. Nor have the Indonesians been
isolated from the influence of cultural trends which have cast off the limi
tations of their origin and become universal in their response to common
human needs. At least two of the great oriental religions, Hinduism and
Islam, have caught the imagination of the island people and, in the course
of time, greatly modified, even transformed, the indigenous attitudes and
beliefs. Buddhism and Christianity, though they have not penetrated as
deeply, also have influenced Indonesian society—if only through contact
with the Chinese and European settlements in every part of the archipelago.
International trade, though marginal to the Indonesian economy before
modem times, likewise has enlarged the outlook.
All these impacts inevitably have affected the adat and have com
plicated it. Surprising, unless one pays attention to the historical circum
stances is not the contribution of 0UtSide contacts to the diversification of
tne culture traits, including the adat, but the fact that so much of the
original, indigenous culture has survive«, Tl,c aplaflation is that oi ^
oreign u rs finly those jmblied with the missionary zeal of Islam have
persisent/y tried to m ake over Indonesian society. Hindu rule, in previous
INTRODUCTION 3
centuries, had transformed the ruling group but had left village life much
as it found it. Western rule brought millions of Indonesians under the
discipline of foreign enterprise in plantations, mines, and urban industries,
but left nearly three-fourths of all working Indonesians to toil in their
their own fields and to live in their own village communities, subject to their
own inherited laws and customs.
In this sense, the adat law of the Indonesians is “primitive”—a
relative term which includes the oral legal traditions of relatively small
remnants of hunting and fishing tribes in the mountainous interior of
Sumatra, Borneo, and Celebes (also of New Guinea, of course) but also
the complex adat of the great majority of villagers, modified in the course
of many centuries by advanced concepts of justice. Only in the backwaters
of Indonesian civilization will one find a truly primitive reliance on magic.
But throughout Indonesia—as in all civilized society—there survive
memories of ancestral beliefs and usages in the form of superstitions;
and no more than the body of law in others lands is the adat entirely free
of at least a faint awareness of this heritage. ÍNTor can it be unaware of deep-
rooted attitudes to kin or caste which date back to earlier times. Among
peoples as closely bound to the soil as are the Indonesians, neither the
seat of respected lay authority nor religious sanctions are easily swept
aside.
There has been some controversy as to whether the traditional Indo
nesian community structure deserves to be called “ democratic” or not.
Perhaps this question may be dismissed as being of little practical impor
tance, provided the village organization contains elements on which a
modem democratic society can be built. T he author of the present study
evidently considered a high degree of democratic thinking implicit in the
adat which he described. It may be observed in passing that the existence
of many small states, recognized under the Dutch regime, usually with
an economy in which every adult freeman played a worthy part, predisposed
as did the Greek city states, the minds of men for the acceptance of
democratic doctrines, once these were clearly presented by the law-givers,
even though in both instances human bondage in various forms also
survived.
ADAT LAW IN INDONESIA
I
«Ip in their everv-day life were not at any time

At any rate, the P“ P ^ ^ Even Mohammedanism, f°r
subject to a ^ ititual au* ority ftom which nominally
^ ^ ce<^ uPon l^ e PeoPje ^
2
°n
o n ; but in recent times even this reverence for the supposed carrier
^
of Koranic wisdom has faded somewhat, and the adat as well as custom
generally is affected by the modem school and the leader who has studied
modern law. .
The term adat has long been accepted by Indonesians and has become
familiar to Dutch jurists and ethnologists. It is still somewhat strange
to the A nglo-A m erican reader. The translators of this work have given
serious consideration to the choice of an English-language equivalent;
but no fitting English term was found. Translation of the term with
«customary law” is not only clumsy but implies a difference in kind from
the law of civilized peoples — a distinction which is not justified in fact.
In so far as the Indonesians have for many centuries lived under the
humanitarian impress of Hinduism and Islam, their law is part of a civilized
heritage. “Native law” would be an adequate translation to distinguish
adat law from Dutch law as it operates in the Indies. But the word
«native” carries overtones of colonial snobbishness and is distasteful
to the resurgent feelings of an awakening Asia. By analogy with the ter
minology adopted in respect to other parts of the world, it would be proper
to consider indigenous Indonesian law as “primitive” law. But this term,
too, has unfortunate connotations and, moreover, is not practical in the
present instance, because within Indonesian society one must distinguish
between the adat of the great majority and that of relatively small and
unimportant tribes which really are primitive in the usual meaning of that
word. To call “primitive” the law of a people which for more than a
thousand years has lived under the influence of world religions and for
three hundred yCBfS under the rule of a Christian nation, a people with
a literate intelligentsia and official class, whose representatives sit at inter
national council tables—would be an error.
INTRODUCTION 5
Though deeply rooted in traditional culture, the Indonesian adat

expresses universal values. Its study is rewarded by the insight it affords
into the growth of law, and the richness which its development can attain
among a&simple people, close to the soil and subject to the natural forces
of a tropical environment. Today, such study is important also for two other
reasons. In the interest of cultural understanding, it is necessary to discard
the notion that only Western law, seemingly so much more precise than
oriental law, has a future; and that the majority of mankind must
revolutionize their legal systems if they would enter into the circle of
modern world civilization. In the interest of political cooperation, it is
necessary to have at least an inkling of the legal systems under which
member states of the United Nations maintain peace and justice at home.
II. LAW IN THE NATIVE CULTURE

A. ADAT LAW
S n o u c k HURGRONJE,the Dutch Indonesian-Arabic scholar and

statesman of the nineteenth century, first pointed out that, since customary
practices among most of the peoples of the archipelago were denominated
by the Arabic word “ adat” , or custom, it would be fruitful to speak of
«adat that has legal consequences” — “ adatrecht” in Dutch or «adat law”
in English .1 The Dutch legislators had employed a host of phrases to
signify the same thing, “ the religious law, institutions and practices” ,
«the customs, usages and institutions” , “ the popular practices” , and the
like 2 Indeed, the term was not introduced into statutory enactment until
1929, but today the concept has been thoroughly explored and its content
carefully defined .3
i C . Snouck Hurgronje, De Atjeher (Th e Achinese), vol. I (189 3), p. 3 5 7 .
* Discussed at length by the master o f adat law, Professor C . van Vollenhoven,
at the opening o f his monumental three volume study, H et adatrecht van N eder-
landsch-Indie (Th e Adat L a w o f Netherlands Indies), 1 9 3 1 - 3 3 .
3 Comprehensive studies were presented at the 19 39 Indies Juridical Congress,
by H . G uyt, Enkele opmerkingeti omtrent de beteekenis van den term adatrecht in de
ivetgeving (Some remarks on the significance o f the term adat law in the legislation),
1 5 1 Tijdschrift, supplemental volume ( 1939)3 PP- 5-6 2 , and by M . Slamet, D e
betekenis van den term adatrecht in de wetgeving (T h e significance o f the term adat
law in the legislation), ufew, p p . 6 3 - 1 1 1 .
B. LAW AREAS
T H E CONCEPT of law-areas4 is a central feature of the D u tch

treatment of Indonesian adat law. It is a device for classification o f systems
of adat law that are comparably similar within the greater body o f In d o
nesian culture.
T he law-area is a cultural-geographic unit. Perusal of the m ap will
show that each area is a special block. T he boundaries of each area were
drawn to include culturally homogeneous societies which, although sharing
many traits in common with all other Indonesian peoples, possess enough
distinctive features of social organization, especially in the field o f law,
to be set off as uniquely different from the societies of all other areas.
In actuality, the law-area concept of the Dutch adat law scholars
is similar in character to the culture-area concept so familiar tp American
ethnologists* The law-area concept holds the same advantages and pit-falls
as the culture-area concept. As Professor Franz Boas has written o f the
culture-area concept, it has developed as a device for describing the typical
common characteristics of culturally related tribes.. . Like every other
classificatory device built on a selection of typical traits, the concept o f
culture areas contains a strong subjective element and varies according
to the stress laid upon one or the other traits of culture. To those who
see the principle trait of culture in economic conditions and inventions
and to those who lay particular stress on psychological attitudes, folkloristic
. material or social organization, the culture areas will not be the same. To
those who have a keen feeling fnr vQnnn» • .
s Ior varying associations between such
elements or who stress more minute differences, large culture areas appear
too generalized. The assumption that the generalized characteristics of the
culture area are present in any one of the constituent social groups may
give an entirely erroneous pIctUre o f the integration of c u lL a l v alu es
in a particular tribe ” .5
*) rf , i ltskrl ^ translated “ law circle” by the Dutch scholar,

C . van Volienhoven, Families of Language and Families of L a w ” , Illinois L a w
Review, vol. 15 (19 21), PP- 4 1 7 ^ utilizing “ law tribe” and “ law family” for the
more generic groupings. J
s) Franz Boas, “ Anthropology” , Encyclopedia of the Social Sciences, vol. 2
( i 93 °)> P- I0 5 b.
INTRODUCTION 7
The Dutch use of the term „rechtskring” rather than “kultuurkring”

obviates the possibility that students will commit the error of thinking that
the special groupings, which they have worked out, imply a general homo
geneity in the totality of the cultures embraced within the areas.
Nevertheless, the intrinsic danger of the area concept is still present.
The tendency is to center the interest focus of investigators on generalized
aspects of native law attributable to the area. It leads to systematized schem-
ologies in which abstraction rather than behavioristic details of actual
practice and attitudes in integrated local cultures become the concern of
the investigator and writer. The consequence is likely to be a neglect of
the functional and behavioristic realities which we in this country have
come to feel are so important in social science studies . 6
On the other hand, the breaking down of Indonesia into nineteen
law-areas successfully emphasizes the fact that within Indonesia the native
adat is highly differentiated and that all statements concerning the adat
must be made with the fact of local variability constantly in mind.
If attention is given to the bibliography of this book, it will readily
be seen that the law-area concept has been effective as an instrument
for the focalizing of Indonesian studies.
In this book, however, the organization of the material is topical,
rather than by area or culture, for the author is formulating a “ system”
of all adat law. But ter Haar, like other Dutch adat scholars, follows the
accepted practice of presenting his comparative illustrations or references
to native usage in the order that occurs when the established sequence
of the law-areas is followed. As may be seen from the list below and by
reference to the map, this proceeds through a traditional circuit (from
west to east) beginning in Sumatra, across to Borneo, on to Celebes, to
the northern islands of the Great East, to New Guinea; then back to the
Lesser Sundas, on to Lombok and Bali, and finally to Java.
The law-areas of Indonesia have been delimited as follows: 7
) Van Vollenhoven was careful to point out the dangers of such generalization,
A datrecht, vol I (19 3 1), pp. I33ff.
7) Largely based on van Vollenhoven, A datrecht , vol. I, pp. I48ff. T h e popu
lation figures are rough estimates from Volkstelling /9 ?o (Census o f 19 30 in Nether
lands India), vols. I -V (19 33-36 ).
1. Atjeh, extending from the half-Batak land of Singkel on the west

coast of Sumatra, through Great Atjeh in the north, east-ward to half-
Malay Tamiang. It bounds on Batak lands in the west, on the Gayo, Alas
and Batak highlands in the center, and on Malayan lands in the east. T h e
islands off the west coast, including Simalur, belong thereto, b u t the
district of Singkel, politically part of Atjeh, is rather part of the Gayo,
Alas and Batak law-area. The Atjehnese people number approximately
800.000.
2. Gayo, Alas and Batak lands are bounded by the Atjehnese,
Malay and Minangkabau law-areas. The Gayos occupy the highlands
of the north, the Alas the mountain valley of the Alas R iv e r; the Karo
and Tim ur Bataks are in the highlands between Lake Toba and the low
lands of the east coast, while the Toba Bataks are to be found in the lands
south of the lake. There is a mixture of Batak peoples on the Toba plateau,
in the river valleys of the Silindung and Sipirok, and in Angkola and
Mandailing. These peoples number 1.250.000, 1.175.000 of whom are
Bataks.
The island groups of Nias and Batu are considered a subdivision of
this law-area.
3. Minangkabau includes the Padang highlands and the Padang
lowlands, as well as the upper portions of the Siak, Kampar and Kwantan
river valleys to the east of the mountains. The law-districts of Agam,
Limapuluh-kota and Tanahdatar constitute the ancestral homeland, to
be contrasted with the “ bordering” lands, i.e., the lowlands "to the west
and the river valleys to the east. The native population numbers 1 850.000.
T h e Mentawei Islands, usually reckoned within this law-area, are prob
ably partof theMalayo-Polynesian law complex rather than the Indonesian
4. South Sumatra coincides with the residencies of Jambi, Palem-
bang, B e m m n fflQ bafflpOflg Districts, and includes the Middle Malays,
Rejangers and Lampongers. The native peoples number 1.500.000, in
addition to numerous Minangkabau colonists in the north, Javanese colonies
in Lampong, Macassarans and other peoples in the coastal areas.
The island of Enggano, included within this law-area, is in reality
a separate law-area.
INTRODUCTION 9
5. Malay Territory includes the Rokan and Siak river valleys of

East Coast of Sumatra, the coastal portions of the Kampar and Kwantan
regions, the Riau-Lingga archipelago, and large parts of the sultanates
of Sambas and Pontianak in Borneo. The law-area includes the British
and Siamese portions of the Malay peninsula, and colonists are to be
found throughout the archipelago, as far east as Middle Timor or South
Belu. The natives number 715.000, with a strong admixture of Chinese
immigrants, Buginese and Minangkabauers in the area.
6. Bangka and Billiton, 140.000 native population, is to be subdivided
into the small group of sea people of Billiton (pagans) and the large group
of land people (Moslems).
7. Borneo is the whole of the island, except for the Malay area of
west Borneo, mentioned above, and is inhabited by the Dyak peoples,
numbering 1.500.000, the major groups of which are the Bahau, Klamantan,
Land Dyak, Ngaju and Punan.
8 . Minahasa corresponds to the three subdivisions of Menado,
Tondano and Amurang on the northeast arm of the island of Celebes.
The natives number 450.000.
9. Gorontalo is that part of the northeast arm of Celebes lying
between the Minahasa and Toraja law-areas, including the lands of
Bolaang Mongondow, Gorontalo and Boalemo among others. These
peoples number 280.000.
10. Toraja Territory law-area is located in central Celebes and
may be subdivided into three law-districts : (1) The Posso-Tojo or eastern
Toraja, made up of the Bare’e-speaking peoples along Lake Posso and the
Posso River and along the coast; (2) the Sigi or Parigi-Kaili or western
Toraja, in the Palu valley and the waste mountainlands above, as well as
on both coasts; (3) the Sadang-Torajas in the southern interior. The
Torajas number 550.000.
11. South Celebes includes that area and the adjoining lands of
Mandar, Luwu, and Mori, on the west and east sides of the island. Macas-
sarans and Buginese form the major portion of the native peoples, who in
all total 2.720.000.
10
12. Temate Archipelago includes Halmahera and the five neigh

boring islands of Morotai, Ternate, Tidore, Batjan and Obi. Usually
included are also the Sula Islands, Waigeo and Miso5l. T he native peoples
number 165.000.
13. Ambon Moluccas consists of Bern, Ceram and the four Am boina
islands (Ambon and the three Uliasers) and the neighboring Banda, C eran-
laut, Watubela and others, as well as the more distant Kei, A ru and
Tanimbar island groups. The latter groups have been affected by nearby
New Guinea and Timor, but still are included within this law-area. T h e
natives number 320.000.
The South Western Islands (from Babar to Wetar) are not actually
within this law-area, but are normally considered appended to it.
14. New Guinea includes the mainland as well as the neighboring
islands, such as Mansinam, Schouten Islands^ Arwan, Japen, etc. T h e
Papuan peoples of this law-area number approximately 325.000.
15. Timor Archipelago occupies all the Lesser Sunda islands as far
west as East and Middle Sumbawa, and is to be divided into two law-
districts, one including Timor, Alor, Solor East and Middle Flores and
Roti, the other the western half of the law-area including Sawu. T h e
native peoples number 1.500.000.
16. Bali and Lombok includes these two islands as well as the western
half of the island of Sumbawa. There are 1.100.000 Balinese and 750.000
Sasaks and Sumbawans in this law-area.
17. Central and East Java including Madura covers the eastern
half of the island of Java, as far west as the eastern portion of Cheribon
(excluding Jogjakarta and Surakarta), and contains 26.000.000 native
inhabitants.
18. Principalities of Jogjakarta and Surakarta (and the minor states
o f Palcua/aman and M an gk u n egaran ), the nucleus of the old kingdom of
Mataram, have a native population of 4.000.000.
19. West Java or, as it is called by the Sundanese, Pasundan, covers
the whole of western Java as far east as western Cheribon. T he Sundanese
number 9.275.000.
INTRODUCTION 11
III. THE PLACE OF ADAT LAW IN THE LEGAL SYSTEM
Our purpose in this section of the Introduction is to outline the place

of adat law in the whole legal system of the Netherlands East Indies, and
to provide a background from which the English reader can realize the
relative position of the adat law in the structure of the whole . 1
A. LEGAL CLASSIFICATION OF THE ETHNIC GROUPS
The constitution of the Netherlands Indies guarantees equality before

the law to the inhabitants of the islands. But equality does not necessarily
mean that the same laws are to be applied to all elements of the population.
As long ago as 1747 the East Indies Company recognized that natives living
outside the trading posts—in which the Roman-Dutch law of the mother
country was applied—were entided to be judged according to “ the laws
of the land” . This concept of a separate law was extended by the Dutch
government, in 1824, to non-Europeans living in the ports of Batavia,
Semarang and Surabaya. 2 Legislation of 1848 codified the prevailing
“ dualistic” tendency by classifying the inhabitants into four groups,
namely : Europeans, people who have become assimilated to Europeans,
natives, and persons assimilated to the native group. Finally, the revision
of previous legislation in 1920 and the Constitution of 1925 replaced this
classification with a threefold grouping : Europeans, natives, and foreign
orientals .3 It should be observed that the law does not specifically define
1 Dutch works which give an. over-all survey o f Indies administration o f justice
include : J. H. Carpentier Alting, Grondslagen der Rechtsbedeelitig in Nederlandsch-
Indië (Fundamentals of the Categories of L a w in Netherlands Indies), 2nd ed.,
’ s-Gravenhage, 1926 ; G . André de la Porte, Recht en Rechtsbedeelitig tn N eder-
landsch-Indiè (L a w and Categories of L a w in Netherlands Indies) 2 nd ed.,
’ s-Gravenhage, 19 33 j Ph. Kleintjes, StaatsinstellingenvanNederlandsch-Indië (Public
Institutions in Netherlands Indies), vol. II, chap. xxiii (5th ed., Amsterdam * 929
[6th ed., 1932,1s not available in the U .S.]). Unfortunately no comprehensive work is
o f recent enough date to include the significant development in the decade before
the Japanese occupation. The information herein does not take account o f any
changes that may have been introduced since the expulsion o f the Japanese.
2 For details of the historical development o f the classification o f the popula
tion, and its present significance, see W .E. van Mastenbroek, D e historische ont-
wikkeling van de staatsrechtelijke indeeling der bevolking van Nederlandsch-Indtë
(T h e historical development of the public law division of the population o f Nether-
land Indies) Diss., Amsterdam, 1934.
3 Art. 109 o f the Government Act o f 18 54 was revised in 1920 , and is now
incorporated as art. 163 of the Constitution.
12 , ADAT LAW IN INDONESIA
the members of each of these groups, but rather indicates to w hat type of
laws each is subject.
W ithin the group subject to the laws for Europeans are N etherlanders
residing in the Indies ,4 those residents whose ultimate origin was E urope,
e .g . , England, France, United States, South Africa, Australia, and Japanese
and persons who in the land of their origin were subject to a family law
in the main similar to that of the Netherlands, e.g., Turks and Siamese l
the children and descendants of these, born in the Indies, are reckoned
within the group. T he indigenous population makes up the group subject
to the laws for natives, save that those of the Christian faith may have their
legal status regulated by separate ordinance ; those natives who have gone
over into another group are not subject to the laws for natives. W ithin the
group of foreign orientals are all the peoples of the Indies not included
within either of the above, primarily the Chinese, Arabs and British Indians
of the Indies, insofar as they have not transferred to another group nor are
subject to separate ordinance by reason of Christian faith.
B. GOVERNMENT POLICY AND DUALISM IN THE LAW
The nature of the law to be applied to each of these groups has been
one of the most perplexing policy problems of the Netherlands, and m ore
recently Indies, government during the last century. Codes based on
Holland models were provided for the European group in the middle of
last century, so the Civil Codé, the Commercial Code, the Codes of
of Civil and Criminal Procedure of 1848, and the Criminal Code of 1866 5
A start was made towards codification of the law for the other elements
of the population, along European lines, by enacting a Police and Procedure
co d e for Natives and Foreign Orientals o f Java and M adura, in 1848/
4 Inasmuch as there exists no distinct Indies citizenship, children and de

scendants of Hollanders who may be bom in the Indies are implicitly in this group.
& T h e codes and statutes o f the Indies are officially published in the S taatsblad
van Nederlandsch-Indië (Law s o f Netherlands Indies) ; a convenient private col
lection including all the significant laws to M a y 1939 is a one-volume edition by
W . A . Engelbrecht, D e Nederlandsch-Indische Wetboeken (Th e Netherlands Indies
L a w Books) 2nd ed., Leiden, 1939.
0 Known as the Native Regulations, the present form is the R evised N ative
Regulations (“ Herziene Inlandsch Règlement” ) of 19 4 1 , effective M a y 15th o f
that year, Staatsblad, 19 4 1, N o. 44.
INTRODUCTION 13
and a Criminal Code for Natives in 1872.7 The substantive civil law for
the indigenous population was simply the adat law, uncodified and largely
non-statutory. The foreign orientals of Java and M adura were, however,
early made subject to the European Civil and Commercial Codes, save
in the fields of family law and inheritance; this was gradually extended
to other territories, so that such has become the law for foreign orientals
other than Chinese throughout the whole archipelago since 1925.8 As for
the Chinese in the Indies, they have been wholly subject to the European
civil and commercial law since enactment of the laws of 1919 and 1925.9
Towards the end of the nineteenth century the ideal of codification of
the law along European lines for all the elements of the population fell
into disfavor with the powers shaping government policy, and its place
was taken by what is known as unification of the law.10 The proponents
of the policy — which in the Indies meant unification along European
lines — declared it was necessary to remove the differences that hindered
the adjustment of Indonesian life to the modern w orld; adat law was
claimed to be wholly incapable of fulfilling the needs of the twentieth
century. The years 1904 to 1927 saw the apogee of unification; a law
establishing police courts and procedure for all elements of the population,
and the Criminal Code of 1918, which likewise applied to all inhabitants,
were the key achievements of the aim towards unification of the law. A
draft Civil Code of 1920, however, failed of acceptance, largely as a result
of the criticism by van Vollenhoven.11 During the same period several
7 T h is has been replaced by the Criminal Code o f 19 18 (Engelbrecht, op.
cit., pp. 993ff.), which is applicable to all elements o f the population.
a It was a law of 18 55 which cut down the sphere o f the adat law o f the
foreign orientals, leaving to them their own law in the fields o f the fam ily and
inheritance. T h e present status, of the law of 19 25, is set forth by Engelbrecht, op.
cit., pp. i67ff.
ü Engelbrecht, op. cit., pp. i69ff.
10 T h e pro and con o f the policy o f unification are best revealed in the works
o f I. A . Nederburgh and C . van Vollenhoven. O f the former, see particularly his
Hoofdstttkken over adatrecht (Chapters on Adat Law ), part I (T h e Hague 19 3 3 ) I
o f the latter, the articles collected in his Adatrecht , vol. II ( 19 3 1) , PP- 8 i9 ff., 852ff.,
859 f f.
11 T h e Ontwerp voor een op alle bevolkings-groepen toepasselijk burgerlijk w et-
boek voor Nederlandsch-Indie (Draft of a Civil Code for Netherlands Indies appli
cable to all population groups) and the Toelichting (Memorandum) thereto were
published, Weltevreden, 1923. Vollenhoven’ s work, Juridisch Confectiewerk j-
attempts were made to develop a law intermediate between the European

and native law, an official law, or as it was called by those who opposed
the idea, a “ fantasy law” ; this movement had little success .12
The governmental policy in the period that preceded the occupation
of the Indies by Japan (1927 - 1942) was marked by a return to dualism ,
an enlightened dualism, one might say. For it looked towards the m ainte
nance of the adat law for the natives, coupled with its official study and
description, and eventual codification. So, for example, labor law, which
was unified in 1879, was differentiated in 1927 by enactment o f com pre
hensive legislation for the Europeans .13 But where it was felt that unification
was required by the exigencies of the m odem world, there the principle
of dualism is abandoned, as in the case of the new maritime legislation
that is made applicable to natives and foreign orientals, as well as
Europeans.14
Just as the first decades of the twentieth century are reflected in the
efforts of van Vollenhoven to keep adat law frcm being overcome by
western law in the guise of unification or intermediate law, so the thirties
can be characterized as the years in which his disciples, notably ter H aar,
strove for the maintenance and expansion of the adat law as the living-
law of the Indies .10 The deletion of western legal terminology, the for
mation of adat law by judicial precedents, the description of existing adat
law, the reestablishment of village justice, and the reorganization o f the
courts to give village justice, native justice at the higher levels, the
administration of justice in the self-governing lands, religious justice and
eenheidsprivaatrecht voor Indie (Juridical Confection; Uniform Private L a w for the
Indies)* in Koloniale Studien , vol. 9 (19 25), is reprinted in his A datrecht, vol I I I
( 1933 )) PP- 7 I 9 ff-
12 C f. P. H . Fromberg, Verspreide Geschriften (Collected Writings) Leiden,
1926, pp. 236ff., 326ff.
13 Cf. generally , A . A . Schiller, Labo r L a w and Legislation, in Far Eeasterti
Quarterly, vol. 5 (1946), pp. 176ft.
u Book 2 o f the Commercial Code, completely revised by laws o f 19 3 8 ;
cf. J.F .A .M . Buffart, H et tiieuwe Indische zeerecht (Th e new Indies M aritim e L a w ),
Zwolle, 19 4 1.
15 T h e part played by ter Haar is described by Soepomo, in 1 5 4 T ijdsch rift
(19 4 1), pp. 5 ff . ; for a full treatment o f the developments of the decade and the
plans for the future, see ter Haar, “ Halverwege de nieuwe adatrechtpolitiek,”
(H alf-w ay on the N ew Adat L a w Policy), Koloniale Studien, 19 39 , pp. iff.
INTRODUCTION 15
finally government justice their appropriate positions in the administration

of justice throughout the Indies; all these problems were wrestled with
in the last decade before the war. What the relation of adat law to the
legal system of the Indies will be in the near future is impossible to predict,
but it seems likely that the policy of recent years will be continued; the
Visman report 16 revealed that only one Chinese group favored complete
unification of the law, and although some native groups would substitute
differentiation along social and economic lines for the threefold racial
distinction, nevertheless it was generally felt that differentiation, not racial
discrimination, was still essential in some fields of the law.
C. GOVERNMENT AND NATIVE ADMINISTRATION OF JUSTICE
The dualistic nature of the Indonesian state is further revealed in

the distinction between government administration of justice (that is,
decisions in the name of the Queen) and native administration of justice
(decisions not in the name of the Queen). Inasmuch as this differentiation
does not entirely conform with the two-fold political set-up of the land,
i.e., territory directly governed by the state (direct rule) and self-governing
lands (indirect rule), a four-fold distinction must be made : ( 1) government
justice in directly governed territory, (2 ) government justice in self-governmg
lands, (3) native justice in directly governed territory, and (4) native justice
in self-governing lands The distinction is significant not only as respects
the organization of the courts and the judiciary, and court procedure, but
also as concerns the nature and extent of the adat law that controls a goodly
portion of the legal life of the natives and foreign orientals.
1. (a) Government justice in directly governed territory. In the
directly governed territory of the Indies government administration of
justice is the rule, native justice the exception. Government justice involves
three types of tribunals : European courts, native courts, and courts for
all classes of the population. The designation “ European” or “ native
docs not refer to the racial class of the judge, but signifies courts which
are chiefly concerned with litigants whose private law is either European
18 Verslag van dc Comniissie tot bestudeerwg van staatsrechtelijke hervormingen

(Report o f the Committee ot Study Public L a w Reforms), vol. I I ( 19 4 1), pp. 59 ft-
or native. True, the European courts are primarily made up of judges of

the European class, and the native courts have native judges for the most
part, but non-Europeans can sit on the European bench, while only the
lowest native courts are presided over exclusively by natives. T he fact
that the type of private law is decisive means that Chinese are within
the competence of European courts, as are also natives who have voluntarily
accepted European law.
The European courts comprise three instances : Residency judge
(residentiegerecht), Superior Court of Law (raad van justitie), and Supreme
Court (hooggerechtshof). The first of these hears minor civil cases in first
instance in which a European or Chinese is the defendant.17 T he Superior
Courts of Law — of which there are six in the archipelago — are the normal
civil and criminal courts for Europeans ; they hear a few exceptional m atters
in first instance regardless of the racial class of the parties, and are the
courts which determine conflicts in competence between lower legal tri
bunals, and are the appellate instances for both the Residency judge and
the Superior Native Court (landraad). In 1938, largely as a result of the
efforts of ter Haar, a third chamber of the Superior Court of Law at Batavia
was created specifically to hear the appeals from the Superior Native
Courts within the spheres of jurisdiction of the Superior Courts of Law
of Batavia, Semarang and Surabaya.18 As yet, appeals from the Superior
Native Courts in directly governed territory within the sphere of the
Superior Courts of Law at Padang, Macassar and Medan are not heard by
special chambers of these courts. The highest court, the Supreme Court,
in addition to original jurisdiction over crimes committed by high public
officials, is the court of last appeal of both civil and criminal cases. In
addition, it is a court of cassation, with power to nullify the decisions of,
lower courts. The aim is to promote uniformity of precedents throughout
the Indies ; whether this is achieved or not, unformity in the interpretation
of the statutory enactments is brought about.
17 The competence o f this and the other courts described hereinafter is well
summarized by André de la Porte, opl cit., note, chaps. I V - V I I inclusive.
18 Th is includes all of Java and Madura, as well as the residencies o f Palem -
bang, Jambi, Lampong Districts, Bangka and Billiton, all o f Borneo, and Ball and
Lombok.
INTRODUCTION 17
The judge of the European court has, occasionally, exceptional au

thority over persons subject to other than European law. It has been noted
above that the higher European courts hear appeals from native courts, and
that certain cases are required to be heard in the Superior Courts of Law,
regardless of the status of the parties. Similarly, attention will later be
called to the so-called „voluntary acceptance” by natives and foreign
orientals of the European law ; further, when a person not within the
European group enters into a transaction with one for whom European
law applies, litigation thereon is ordinarily before the European court.
Finally, a “ forum privilegiatum” under a European judge hears both
civil and criminal cases involving native sultans and chiefs and lower
native civil service personnel. But the significant factor is that, except
in the cases of acceptance of the European law, the European court applies
the substantive law of the litigants, which in the case of natives is adat law,
even though the court be European ; the procedural law, however, is
that prescribed by the law for the court.19
The names and the competence of the native courts of government
administration of justice in directly governed territory differ in Java and
Madura from those in the Outer Territories. The lowest instance in Java
and Madura is the District judge (districtsgerecht), with the native district
chief acting in this position, assisted by minor native officials as advisory
councillors. He may hear civil controversies involving natives in which
the amount at issue is less than fl. 20 and minor offenses in which a fine
of less than fl. 3 is assessed. The native regent, or his representative, the
“patih,” serves as the Regency judge (regentschapsgerecht), who hears
appeals from the District judge and, in first instance, insofar as these are
not heard by the District judge, civil controversies involving natives in
which the amount at issue is between fl. 20 and fl. 50, and criminal cases
for which the penalty is not more than six days imprisonment or a fine
of fl. ]0. As his assistants the Regency judge may call in as many minor
chiefs as he desires, but he is required to have the “ penghulu’ (religious
advisor) and an officer of the Department of Justice at hand. T he decisions
of both the district and regency courts, however, shall be made by the
19 Cf. André de la Porte, op. cit., pp. Sjff.
\
district chief and the regent alone. The normal native court of the natives
and foreign orientals of the directly governed areas of Java and M adura
is the Superior Native Court (landraad); the presiding justice is a judicial
official and his colleagues include the regent, “patih,” district and sub
district chiefs, etc., assisted by a clerk of the court. As a normal court, the
Superior Native Court has competence of all civil and criminal cases
not extraordinarily assigned to other courts, such as the District, Regency
or Police Court. Consequently, it is the chief source, in first instance, of
the adat law decisions which form the basis of the developing adat law .20
Appeal from the civil decisions of the Superior Native Courts to the third
chamber of the Batavia Superior Court of Law—a chamber composed
of specially named jurists trained in the adat law—is afforded where the
amount in controversy is not less than fl. 100. The defendant or the state
may seek revision of the judgment in a criminal action before the criminal
chamber of the appropriate Superior Court of Law in any case save where
the defendant is acquitted. Although the set-up of the native courts of
Java and Madura is provided for in the same statute as that which outlines
the organization of the European courts,21 distinct Codes of procedure
have been enacted.22
The native courts of government justice in the directly governed
land of the Outer Territories differ somewhat from the above.23 The
place of the District and Regency judge is variously taken by Negory
courts (in part of the Residency of the Moluccas), District judges (in
Bangka and Billiton, and Menado), District Courts (in Sumatra’s West
Coast, Tapanuli, and part of the division of South and East Borneo),
20 Cf. infra, chap. X IV .

11 Regulation on Court Organization and Administration of Justice of Nether
lands Indies of 1848, see Engelbrecht, op. cit., pp. iooff.
22 For the European courts there e x is t: Regulation on Civil Procedure o f 1848,
and Regulation on Criminal Procedure of 1848, see Engelbrecht, op. cit., pp. 842ff.
and H 97ff. For the native courts there is the Revised Native Regulation, lastly
enacted by law of March, 19 41, see Staatsblad, 19 4 1, No. 44.
23 The names and location of the native courts throughout the Outer T e rri
tories are set forth under the heading of “ Inlandsche rechtspraak” (Native A d
ministration of Justice) in the section of the annual Regeerings Almanak voor
Nederlandsch-Indie (Government Almanac for Netherlands Indies), part 1, devoted
to the Department of Justice; thus, in 1939 Regeerings Almanak, I, pp. 35ff.
INTRODUCTION j 9
and magistrates (in most of the residencies). On the other hand, the highest
of the native courts are termed Superior Native Courts (landraden) with
comparable competence .24 Appeal from the Superior Native C ourt is to
the Superior Courts of Law, either those of Padang, Macassar and M edan,
or the third chamber of that at Batavia for civil cases, and the criminal
chambers of the courts at Batavia or Surabaya, as the case may be .25 Th'e
members of these courts are largely native chiefs—in the case o f the
Superior Native Court a judicially trained civil servant is the presiding
justice—although in Riau and Ternate foreign orientals participate,
while in Sumatra’s East Coast even Europeans may do so. T he court
organization and procedure of both native and European courts in the
O uter Territories is provided for in a single enactment, an entirely dif
ferent act than those prescribing the organization and procedure for these
courts in Java and Madura .26
T he last step in the separation of the administration of justice from
the executive-administrative power was brought about by the creation of
police judges (landgerechten) to take over duties formerly carried on by
administrative officials. Since 1914 in Java and Madura, and subsequently
to a limited extent elsewhere, the police judge has tried all misdemeanors
m which the penalty amounts to no more than three months imprison
m ent or a fine not over fl. 500 insofar as these are not adjudged by other
courts, as has been previously noted; further, certain minor felonies are
also heard in the police court .27 The noteworthy factor is that this court
21 A n extraordinary native court, the Royal Court (rijksraad) at Ternate was
but recently abolished by a law o f 1939 (Staatsblad, 19 39 N o . 76), effective M a y
I 939 - On this court, cf. Campen, D e regeling van het rechtswezen in de B uiten-
gewesten (T h e regulation o f the administration o f justice in the Outer Territories),
I 939 > pp. I38 ff.
“ 5 Appeals from the native courts o f Sum atra’s W est Coast, Tapanuli and
Benkulen go to Padangj those o f East Coast o f Sum atra, Atjeh and R iau to
M e d a n ; and o f Celebes, Menado, T im o r and the M oluccas to M acassar. Crim inal
appeals from the native courts of the Lam pong Districts, Palem bang, Jam b i,
Bangka and Billiton, and West Borneo to the court at B a tav ia; from Bali and
Lom bok, and South and East Borneo to that o f Surabaya. C ivil appeals from all
these latter to the third chamber at Batavia, see supra , note 18.
20 L a w Regulation for the Outer Territories o f 19 2 7 , see Engelbrecht, op.
c lt-> pp. I 3 6 iff.
27 T h e Police Court Regulations o f 1 9 1 4 treats fu lly o f the competence and
procedure o f this court, cf. Engelbrecht, op. cit., pp. I268ff.
20 ADAT LAW IN INODNESIA
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INTRODUCTION 21
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22 ADAT LAW in INDONESIA
k the only one which has competence regardless of the racial class of the
accused * it stands as the culminating expression of the unification policy
in the procedural field. The police iudge is a judicially trained official,
assisted by a native fiscal clerk, although in a few localities a d m in istra te
officers still carry on, since they have not been replaced by judicial offlcials.
I t is significant that there is no appeal from a judgment of this co u rt;
cassation by the Supreme Court—a declaration of nullity—is the sole
remedy available.
(b) Government justice in self- governing lands.— h t the present time,
there are but two reasons for government justice over residents of lands
not directly ruled by the Government. In the first place, Europeans and
Chinese_as well as.natives and other foreign orientals who have accepted
E u ropean law —are within the competence of government courts, even
though they reside in territories ruled by native sultans or chiefs. The
com p eten ce of the courts of self-governing lands never extends beyond
the subjects thereof, and, as has been noted, the crimes of higher native
chiefs and rulers are also tried before government courts. Secondly, if one
of the parties to civil litigation be not a subject, government justice applies,
while the criminal competence of courts of self-governing rulers is limited
to acts done within the bounds of the land by members of its populace.
And if direct legislation has withdrawn cases from the courts of native
rulers, governm en t justice applies.
Quite recently, a third type of government administration of justice
in self-govern in g lands has disappeared. Formerly, the courts of the
P rincipalities of Java were alm ost entirely governed by principles of
government justice, but in the last few years before Japanese occupation
justice was returned to the sultans, so that their subjects are governed by
adat law, both procedural as well as substantive adat law.28 This marks
an important step in the return of adat law to the peoples of Java, who
had apparently lost their adat courts and procedure, and were well on the
way to losing all of their adat law. There was also formerly a Royal Court
Government justice was curtailed by a law of i94o (Staatsblad, 1940, N o.

1 16 ) , and self-governing justice is specified « 1 the agreements w ith the four
princedoms (Staatsblad, 1939. No. 6 1 4 ; 1940, No. 5 4 3 ; ^ N o s 47 and 577.
INTRODUCTION 23
(rijksraad) at Menado, a government court with jurisdiction over most

of the self-governing lands of the residency; this also has gone .29 The
administration of justice in the divisions of South New Guinea and Upper
Digul of the Moluccas was exceptional in that it was still an administrative
matter at the time of the Japanese invasion.30
2. Native administration of justice.—Although by far the greater
number of the inhabitants of the Indies are within the scope of government
justice, the map appearing on the end papers indicates that most of the
territory is within the sphere of native justice. Only a small portion of
government justice is concerned with adat law—namely, only those cases
tried in the government native courts where both parties are natives and
where the matter in dispute has not been regulated by statutory (European)
enactment. On the other hand, practically the whole of native justice is
adat law. The judicial power, be it native chief, elders, councillors, or
judge, is largely established by adat public law ;31 the legal procedure is
adat-process and thus in sharp contrast to the formal statutory procedure
of government courts ;32 the decision rendered does not have governmental
sanction unless the adat sanction is insufficient; and frequently there is
no appeal from native decisions. Native justice is thus one of the chief
sources of adat law and—although reports are not very extensive—it has
been frequently utilized by Professor ter Haar in this volume. It appears
in two distinct forms in the archipelago : (a) native administration of jus
tice in directly governed territory (inheemsche rechtspraak in the narrow
sense), and (b) native justice in self-governing lands (zelf-bestuursrecht-
spraak).
89 Abolished by law o f 19 39 (Staatsblad, 19 39 , N 0 .76), effective Ju ly i , 1940

(Staatsblad, 1940, N o . 238).
30 Provisional Regulation o f the Administration o f Justice in the sub-divisions
South N e w Guinea and U pper Digul, o f the Residency o f the Moluccas o f 1908
cf. Engelbrecht, pp. I948ff. See also Carpentier Alting, op. cit., note 1, pp. 268ff.
31 Some o f the tribunals have been established by the Dutch, cf. van Vollen-
hoven, “ D e inheemsche rechtspraak in Indie” (T h e native administration o f justice
in the Indies), op. cit. supra note 10, vol. I l l , pp. i 2 i f f ., which still remains the
basic study on native justice.
32 T h e dissertation of ter H aar, H et adatproces der inlanders (T h e adat proce
dure of the natives), Diss., Leiden, 1 9 15 , serves as a supplement to this volume,
though somewhat out of date.
24
(a) N a tiv e justice in directly governed territo ry.— T he Indies Con

stitution o f 1854— and o f 1925-provides that “ where the native popu
lation is not left in the enjoyment of its oWn administration o f justice,
decisions are rendered in the name o f the King.”33 Affirmatively, this
sanctions the native justice that is m et with in large portions o f directly
governed lands in the Outer Territories. In some regions statutory enact
ments regulated this native justice, while elsewhere directives o f the local
residents controlled the nature and competence o f the native tribunals.34
It was largely the contradictory and uncertain nature o f the latter that led
some authorities to contend that native justice in government lands was
to be considered only a temporary measure, eventually to be replaced by
government justice.35
In 1932, however, there was enacted a statute that laid down general
principles for the administration of native justice, assuring its continuance
and applying it not only to natives indigenous to the locale but also to those
who come in from outside 36 The regulations provide for judges of the
native communities (dorpsrechtspraak), religious judges within the frame
work of the adat law (godsdienstige rechtspraak), and other higher courts—
of the first two, more anon. All these courts are to decide in accord with
adat law insofar as this is not in conflict with an appended list of enactments,
and sections of the European codes. Certain elements of adat law are
abrogated, e.g .3 the penalties of the Criminal Code are substituted for the
penalties traditionally adjudged for adat delicts; seme general principles
of evidence and trial practice are enunciated. But within this framework
the adat law for the particular law area is the law to be administered. In
the five years following, the Regulation of 1932 was gradually applied to
all the areas of native juvticc. in directly governed lands
33 Sect. 74 of the Government Aer nf ___
Engelbrecht, op. c i t p. 62. scct‘ 130 the Constitution,
31 Cf. generally, A . Mieremet, Be hedendaaa«.1,* • u
Nederlattdsch-India en haar regeling (The present-d™ tnh*?msche rechtspraak en
justice in Netherlands Indies and its regulation') D i « ^ a^ m^nistration- of
by P. de Kat Angelino, Colonial Policy, vol. I I (ToorV’ nX ^ o ^ 19 19 * a resume
35 Carpentier Alting, op. cit., note 1 pp. 7
30 Regulation of the Native Justice in Directly' Gowm »,i -r •
Engelbrecht, pp. iso8ff. That native administration of im tirJ t, " er.n tory ,of I 93 2 >
cf. ter Haar, 138 Tijdschrift (1933), pp. 737ff. territorial in scope,
INTRODUCTION 25
A law of 1941 completely amended the 1932 enactment, adding a

chapter specifically setting forth the court organization and procedure
for native justice in the directly governed portions of the residency of
Tapanuli.37 In addition to village justice, small rapats, superior rapats3
and a Supreme Rapat were given legal recognition; the first three types
were set up as nearly as possible in conformity to small and larger forms
of adat organization, while the Supreme Rapat constituted the second
chamber of the Superior Court of Law at Padang38. Further, the requisites
of appeal and other aspects of process were outlined. Presumably this
amendment was the first of a series of chapters that would eventually
codify adat courts and procedure for the adat law areas made up of directly
governed territory.
(b) Native justice in self-governing lands.—The second locale of
native administration of justice is within those areas of the Indies that
have been permitted to retain a measure of autonomy. Most of the lands
indirectly ruled by the Dutch are autocratic princedoms or sultanates under
the rule of native lords, but an occasional federation or even “ republic 55
evidence the underlying communal democratic spirit of the indigenous
population .30 In any case, in most of the self-governing lands the native
population continues to live under its own adat law administered by its
own courts. Where the native law had largely disappeared, the years be
fore the Japanese invasion saw it successfully re-introduced .40
Justice in the self-governing lands, however, has not been left un
circumscribed by the Dutch. By a series of regulations, the latest in 1938,41
a constitutional framework for the native states has been provided, setting
forth the powers which are to be exercised, and general rules to be observed
17 Staatsblad, 19 4 1, N o. 7.
38 T h e August, 19 4 1 number of Tijdschrift (vol. 154 , pp. 85-256) treats of
this legislation and presents a number of decisions of the various Tapanuli courts.
39 Cf. B. J. Haga, Indonesische en Indische democratic (Indonesian and In
dian Democracy), 1924, pp. I 5 8 f f .; briefly, P. de K at Angelino, Colonial Policy,
vol. II (19 31), pp. H 3ff. T h e "hadats” of Wadjo and Bone (South Celebes) are
instances of rule of the council o f a federation, while Posso in Toraja territory has
a republican tinge.
10 E .g., by the enactment on village justice, vide in fra ; by the reinstatement
of native justice in higher courts, vide supra, note 27.
41 Se lf Government Regulations of 1938, see Engelbrecht, op. cit., pp. i54o ff.
/
26
in the governance of the lands. Two articles, arts. 12 and 13, refer explicitly
to the administration of justice. The extra-territoriality of Europeans and
foreign orientals is recognized; further, criminal actions of a serious
nature and civil cases involving the state itself or a person not a subject,
are withdrawn from the competance of the native courts. Court organization
and process are to be regulated in accordance with published provisions,
often subject to the approval of the Dutch resident. Similarly, severe
penalties or judgments involving more than fl. 100 are subject to his
approbation.
These constitutional regulations have now been applied to most of the
indirectly governed lands of the Indies ; the political agreements (treaties)
between the Government and the four native principalities of Java contain
similar provisions respecting the administration of justice.42 Under the
constitutional framework the native state is responsible for its own legal
administration. Normally, the adat law is the “ common law” of the land,
subject to such limitations as are expressly or implicitly imposed by Govern-
ment legislation, and supplemented by whatever ordinances have been
enacted by the native rulers. The law of the self-governing lands, the basic
law as well as the overlaid local ordinances, is constantly being construed
or interpreted by the decisions of the native courts. These precedents
many of them invaluable sources of the adat law, are unfortunately ver^
seldom reported.43 As a result, native law books and the ordinances of
native rulers are looked upon as the chief sources of the law, to the neelect
of the basic tradmonal adat law of the area. The regular publication of the
"• “ * •« *
42
es ss given,
All of the Outer Territories in which m f
both governm ent an d
A tjeh-w h ere a law of 1916 still applies, see E n e e Î e r î f ^ are lo« *e d , except
and Riau, were made subject to the Self-Government » CU,J PP-
1939 to 1941. The treaty with Surakarta i8 in S t a S i R,CgUlations in the years
M a n g k u m g m , idem, 1940, No. 543 • with JogS a S ’ 19395 N o * 6 l^ with
with Paku Alam, idem, 1941, No. 577. 3 I 94 I > N o . 47 ; and
13 A few are to be found in volumes of a a
adat law). Adatrechtbundels (Bundles of
INTRODUCTION 27
indigenous administration of justice. There is a type of native justice,

however, extending throughout the archipelago, which has nothing to do
with organized courts and formalized procedure. This is the concept
termed village justice (dorpsrechtspraak), characterized by the voluntary
arbitration to which villagers submit their disputes, and by the disciplinary
measures imposed by the village chief, council of elders, or other governing
body of the community.44
Little recognition was accorded village justice by statutory enactment
or executive decree, since both the Dutch government and the native states
organized their realms in administrative units of larger compass, whereby
the control passed into the hands of officials other than the traditional adat
authorities. Indeed, by the twentieth century native justice was almost
entirely a formalized system that did not reflect the customs by which the
indigenous inhabitants regulated their lives. In the directly governed
lands, native justice received no official sanction below the district level,
as we have seen above. In the native states, the incursion of western ideas
had so influenced the organization of the state that village justice played
a very minor role .45
The efforts of van Vollenhoven and his disciples finally prevailed
upon the government to give express recognition to this vital aspect of
native society. In 1935 a statute was enacted which supplemented the acts
regulating native justice in directly governed lands, by which the higher
tribunals were required to respect the decisions of the “ judges of the small
44 T h e literature on village justice is not very extensive; leading studies in

clude A . Mieremetj De hedetidaagsche inheemsche rechtspraak in Nederlandsch-
Indie en haar regeling (Th e present-day native administration of justice in
Netherlands Indies and its regulation), 1 9 1 9 ; cf. P. de K at Angelino, Colonial
Policy, vol II. (1931)3 PP- i8 8 f f .; B. ter Haar, Koloniale Studien, vol. 12
(1928), pp. 2 53ff.; C . van Vollenhoven, Adatrect, vol. II (19 3 1), pp. 498ff.
45) A n excellent instance o f the replacement o f village justice by native justice
on a higher level is portrayed by Middendorp, "T h e Administration o f the Outer
Provinces o f the Netherlands Indies,” in B. J. O. Schrieke, ed., The Effect of
Western Influence on N ative Civilizations in the M alay Archipelago (1929), pp.
5 6 ff .; cf. also Mieremet, op. cit., pp. 24-46. T h e status o f village justice in 1928
in both the directly governed lands and the native states is outlined in an appendix
to ter Haar’s article, op. cit., pp. 272-80.
autonomous communities” .46 The same result was accomplished for the
native states by the newer “short declarations” and “agreements” with
the Dutch government, and by the Native States Regulation of 1938.47
As a result native justice at the lowest level is now fostered by the govern"
ment in areas—such as the island of Java—where it was virtually
disappearing.48 Much more attention needs to be given to village justice
in order to integrate it into the judicial system. Indeed, perhaps the
administration of justice as a whole should be reformed from the bottom
up, as has recently been instituted in administrative reorganization.
4. Religious justice. — Moslem religious justice (godsdienstige recht-
spraak) occupies a singular position in the administration of law in the
Indies.49 The religious aspects of pagan or Hindu society, judicial concepts
of Mohammedanism or Christianity may be reflected in adat law and the
native administration of justice, 50 but that is not what is here concerned.
Rather, Islamic law replaces adat law, for Muslim religious officers are
given the opportunity of advising upon or adjudging in specific spheres
of the substantive law in controversies involving Mohammedan litigants.
In the first place, a statutory enactment tracing back to the time of
Governor General Daendels provides that the chief penghulu or other
46 Staatsblad, 1935, No. 102. Cf. Legislative Report, 142 Tijdschrift (1935)5
pp.. i09ff.
47 Arts. 12 and 13. see Engelbrecht, op. cit., pp. i544ff.
48 For the most recent critique of village justice see B. ter Haar, “ Halver-
wege de nieuwe adatrechtpolitiek,” (Half-way on the new adat law policy),
Kolottiale Studten , 1939, pp. H 7ff. ; H. Campen, De regeling van het rechts-zoezen
in de Buitengewesteti (The regulation of the administration of justice in the Outer
Territories) 1939, pp. 95^, I2of.
49 Basic studies include Nederburgh, in Wet en A dat , vol. 2 (1896-98), pp-
1-16 8 ; ]. J, van de Velde, De godsdienstige rechtspraak in Nederlandsch-Indie
staatsrechtelijk beschoutvd (The religious administration, of justice in Nether
lands Indies considered from the public law point of view) Diss., Leiden, 192S
G . André de la Porte, Recht en rechtsbedeeling in Nederlatidsch-Indië (Law and
Categories of Law in Netherlands Indies), 2nd ed., 1933, pp. 9 5-10 4. T h is
is one topic that is adequately presented in English, in an address by H. Westra,
“ Custom and Muslim Law in the Netherlands East Indies” , in Transactions of
the Grotius Society , vol. 25 (1940), pp. 151-6 7.
60 The best known examples are the Hindu priestly courts of Bali and L o m
bok, but even the Islamic “ surambi” court of Jogjakarta is to be included
within native rather than religious administration of justice, van Vollenhoven,
Adatrecht, vol. I, pp. 675f.
INTRODUCTION 29
Moslem “ priest” should act as an adviser in every native court when

persons o f this faith are litigants ; they act in an advisory capacity only
and cast no vote . 51 T h e “ penghulu” is accordingly asked for his opinion
on “ religious laws, institutions and usages” and replies by quoting Islamic
law, whether it has application in Indonesia or not. C onsequently, intel
ligent judges in the native courts tolerate the practice, for the legislature
has failed to repeal the provision. B ut the practical result is th at the opinion
of the “ penghulu” is listened to and noted in the record, b u t no account
of it is taken by the native court in rendering its decision . 52
Secondly, in Java and M adura, wherever a Superior N ative C ourt
is established, provision is m ade for what is term ed a Priest C ourt (priester-
raad ) . 53 A fairly recent law has curtailed the competence o f this religious
court, so that it merely hears litigation involving marriage, repudiation,
reconciliation and divorce between M ohamm edans ; a C ourt of Islamic
Affairs hears appeals from the Priests C ourts . 54 Earlier, these courts
also had jurisdiction in cases o f inheritance, and perhaps also religious
foundations, b u t this sphere of law has now been returned to native
administration of justice. As a m atter of fact, the Javanese adat law of
inheritance has always been in conflict with the Islamic law o f succession . 55
T here has long been a strong demand for the abolition of this religious
justice, even by the famed Arabicist, the late D r. Snouck Hurgronje, 56
51 A rt. 7 , Regulation on C o u rt Organization and the Adm inistration o f Ju s
tice, Engelbrecht, op. cit., p. 10 2 .
62 C f. ter H aa r, K olon iale Studien, 19395 pp. I 2 5 f f . ; see also the objections
raised b y J . H . Carpentier A ltin g , Grondslagen der Rechtsbedeeling in N ederlandsch-
Itidië (Fundam entals o f Categories o f L a w in N eth erlands Indies) 2n d ed., 19 26 ,
pp. 336 - 3 9 -
53 A c t o f Jan . 18 8 2 , Staatsblad, 18 8 2 , N o . 1 5 2 , Engelbrecht, op. c it., pp.
i 5 o f f . A ctu ally it is neither a collegial court nor is it m ade up o f “ priests” , for the
single "pen ghulu” judge is not a priest in the Islam ic religion, cf. W estra, op. cit.,
p p . IÔ 2 f.
54 Staatsblad, 19 3 7 , N o . 1 1 6 cut down the com petence, and Staatsblad, 1937»
N o . 6 10 set forth the appellate procedure.
50 B . ter H aar, "A d aterfrech t op, Ja v a ” (Adat la w o f succession in Ja v a), 148
T ijdsch rift 2 0 1 , 2 0 5 ff.
50 R apport over de Mohammedaansche godsdienstige rechtspraak (R eport on
the M oham m edan religious adm inistration o f Ju stice), Verspreide G eschriften,
vol. I V , pp. 9off. ; see also A ndré de la Porte, op. cit., pp. I0 3 ff. B u t cf. I. A .
N ederburgh, D e godsdienstige rechtspraak en het “ deuken” van het adatrecht
T h e religious administration o f justice and the pricking o f the adat law ), 19 28 .
yet the Government, in a revision in 1931—not as yet in effect—preserved

the institution. A “ penghulu” judge is to be appointed throughout Java
and M adura wherever a Superior Native Court assembles, with the same
competence as the Priests Court, and an appeal to a Court for M oham
medan Affairs at Batavia. 57 In accord with the same policy, religious justice
was reformed in Banjermasin and Hulu Sungei (South Borneo) by the
creation of “kadi” judges and an appellate “kadi” judge, again for con
troversies between Mohammedans involving marriage and the like . 58
As yet religious justice in other parts of the Indies, such as South Celebes
and Ternate and the capital cities of Palembang and Jambi in Sumatra,
is still governed by old enactments and customary practices. 59
As a result, in those areas in which religious justice exists, the law
of marriage for Mohammedans is not adat law but Islamic law, save in the
instance that village justice disregards the latter in administering law at
the lowest level. In spite of the opposition to the policy of fostering a system
of law that is actually in conflict with the indigenous law, religious justice
seems to be too firmly entrenched in its limited sphere to be displaced.
Perhaps the solution will be a complete codification of the Islamic marital
law of Indonesia . 60
5. Summary.—The complexities of the administration of justice
in the Indies, insofar as it concerns the native inhabitants, may well be
summarized on the accompanying chart, which is an expansion of one
drawn up by van Vollenhoven. 01 The scheme outlines those courts in which
the native inhabitants may be parties, and the extent to which adat law
governs the substantive and procedural law administered by these tribunals.
In many of the tribunals, it will be noted, adat law is not involved at all,
87 Staatsblad, 19 3 1, N o. 53, Engelbrecht, pp. I5 3 ff. A n attempt to abolish

the “ penghulu” courts in 19 35 was unsuccessfull.
58 Staatsblad, 1937, N o. 638, effective Jan. 1, 1938, Engelbrecht, op. cit., pp.
I529 ff. Cf. Eisenberger, "D e godsdienstige rechtspraak in de Zuider- en Oosteraf-
deeling van Borneo” , (Th e religious administration o f justice in the South- and
East-division o f Borneo) Koloniaal Tijdschrift, 1938, pp. 626-65.
69 Cf. Campen, op. cit. supra, note 48, index, s.-y. “ godsdienstig rechter.”
00 Legislation has already provided a number of marriage ordinances, cf.
Engelbrecht, op, cit., pp. I534ff.
01 Adatrecht, vol. I, p. 48.
INTRODUCTION 31
G E O G R A P H IC A L T A B L E O F A D M IN IS T R A T IO N O F J U S T I C E
SU M ATR A N a tive Justice
Residency Division
Government in directly in self-
Justice gov'd terr. g o v'd lands
Atjeh and Great Atjeh
Depend. N . coast of Atjeh G r. Atjeh (all)
E . coast o f Atjeh, (all)
etc. (all)
W . coast o f Atjeh
Singkel (all except
Singkel)
E . coast of Deli and Serdang Medan (city)
D eli, Serdang
Sumatra Langkat
Asahan (all)
Asahan, Indra-
poera, etc.
Simelungun and Pematang-
Siantar, Panax,
the Karo lands siantar (citv)
Purba, etc.
Tapanuli Sibolga and (all)
neighborhood
Nias Batu Is. Nias
Padang Sidim- (A ll except)
Padanglawas
puan
Batak lands
(all)
Sumatra’s South lowlands (All except) Kerintji
West-coast
Mentawei Is.
Tanahdatar (all)
Agam (all)
Limapulukota (all)
Solok (all)
Riau and Tanjungpinang Pulu-tujuh R iau-Lingga
Depend. (sultanate)
Indragiri Rengat (city) Indragiri,
Retihj etc. Kwantan Dist.
Bengkalis Bengkalis Pelalawan,
(island) Siak, etc.
Jambi Jambi Jam bi (city) Jam bi (rest)
Benkulen Benkulen Benkulen Benkulen
(city) (rest)
Palembang Palembang low Palembang Palembang
lands (city) (rest)
Palembang high (all)
lands
Ogan and
Komeringulu (all)
Lampong Dist. Telokbetung (all)
Bangka and Bangka and (all)
Billiton Billiton
BO RN EO
South and East Banjermasin (all)
Division Hulu Sungai (all)
Kapuas-Barito (all except) Kotawaringin
G E O G R A P H IC A L T A B L E O F A D M I N I S T R A T I O N O F J U S T I C E
— Continued
BO R N EO
N attve Justice
Residency Division Government i?t directly in self-
Justice gov'd terr. gov’g. lands
Samarinda Samarinda Upper M aha- Kutai
(city) kam, Pasir
Sambodja
Bulungan and T g . selor Bui ungan3Sam
Berau (city) bali ung, etc.
T g . redeb
(city)
West Division Pontianak Pontianak Meliau Pontianak,
(city) Kubu, L a n d a k ,
Sanggau, etc.
West Division Singkawang Sambas,
Mempawah
Sintang Pinuh lands Sintang, etc.
Ketapang M atan, Suka-
dana, etc.
GREAT E A ST
Celebes and Macassar (all except) Laikang, Goa

Depend. adat comm.
in Maros
Bonthain (all except) adat comm.
in Kindang
Bone Bone, Soppeng,
Wajo
Pare-pare Malusetasi, v
Rappang, etc.
Mandar Majene, Marau-
ju, etc.
Luwu
Luw u (all)
Buton and
(all)
Laiwui
Menado Menado Minahassa Kaidipan- Bolaang M o n-
besar gondow, Bin-
tuana, etc.
Sangihe and Tabukan, Siau,
Talaud Is. Talaud Is.
Gorontalo Gorontalo Buol
Donggala Banawa, T a w a-
eli, Palu, etc.
Poso Poso, Tojo,
Banggai, etc.
INTRODUCTION 33
G E O G R A P H IC A L T A B L E O F A D M IN IS T R A T IO N O F J U S T I C E
— Continued
GREAT EAST
N a tiv e Ju stice
Residency Divisiofi G overnment in directly in self-
Justice g o v ’d terr. g o v ’g . lands
Moluccas Am boina A m b o in a, A m b o in a
Saparoea, (rest)
Banda T e g e n , N ila
(except) Seru a Is.
T ual S. N ew T u a l (rest)
G u in ea
i U p p e r D ig u l
Ternate L a b u h a and T e rn a te , T id o re
O bi Is. Batjan
N . N e w G uinea T id o re
W . N e w G uinea T id o re
T im o r and T im o r and K upang Kupang
Depend. islands (city) A m ara si, etc.
Flores E n d e, L a r a n -
tuka, Adonara,
etc.
Sum baw a and B im a, D o m p u ,
Sum ba S u m b a w a , etc.
Bali and L o m Buleleng, Je m
bok Singaraja brana
B adung, T a b a
South Bali nan, etc.
Lom bok (all)
JA V A A N D M A D U R A
W est Java (all)

M iddle Java (all)
East Java (all)
Jogjakarta Jogjakarta,
Paku A lam
Surakarta Surakarta,
M angkunegaran
while in others the substantive law that is observed is partly adat law and
partly that which is enacted in goyernment statute of self-government
ordinance. Generally, adat procedural law appears only in the native
justice of the self-governing lands and in the religious and village justice
which is within the compass of native administration of justice.
D. THE CONSTITUTIONAL BASIS OF ADAT LAW
In the earlier parts of this section it has been pointed out that in spite
of the centuries-old policy of permitting the indigenous inhabitants to
live by their own law, the last hundred years have seen considerable inroads
into this policy. In the spheres of government justice, statutory enactments
along European lines have been promulgated to regulate the whole of the
criminal law, and both civil and criminal procedure, as well as the substance
and process of the general Police Court. Even in the spheres of native
administration of justice the procedure that is observed is to some extent
not that of adat law, but a system which reflects European ideas. In prin
ciple, in the areas of native justice the substantive criminal law of the
native peoples is still the adat law, but in practice this has largely been
modified or replaced by statute, in both regions of direct and indirect
rule; the adat penalties, for example, are practically all gone, with the
punishments of the Criminal Code substituted therefor.
The net results is that the only significant field that remains to adat
law—and thus forms the subject matter of this volume—is what is
termed in occidental legal phraseology “civil law”, inclusive of the concept
“ commericial law.” In an introductory chapter to his book ter Haar sum
marizes the constitutional basis of the component elements of the law,
which reproduce in abbreviated form here . 62
I. In. the sphere o f government administration of justice : (i) adat civil law
is valid for natives insofar as that civil law is not replaced by statutory enactment
or b y European law (Art. 1 3 1 par. 6 C o n st.) ; (2) ordinances regulating native civil
law which were enacted prior to Jan. I, 1920 , must, in order to be applied by the
ju dge, be European ordinances declared applicable to natives, modified i f need be
(Art. 7 5 o f former Const.) ; (3) ordinances regulating native civil law enacted after
Jan- 1 , 19 20 , must either (a) declare enactments valid for Europeans applicable to
natives, i f the social needs among the natives so require, or (b) subject both natives
and Europeans to common regulations, i f the social needs among the natives so
require, or (c) otherwise respect adat law, from which, however, it is possible to
depart i f the public interest or the social needs o f the natives so require (A rt. 1 3 1
par. 2b Const.) ; (4) the rule that adat law may not be applied by the judge i f it is in
conflict with generally recognized principles o f equity and justice is no longer in
force (Art. 75 o f former Const, repealed by omission from art. 1 3 1 Const.).
02 ter Haar, Begtnselen, pp. 9ff. T h e remarks on religious administration o f

justice have been omitted as not appropriate at this point.
INTRODUCTION 35
II. In the sphere o f native adm inicm r;^ •

territory • (5) adat civil, criminal and p ro ce d u ra l^ ™ ,USt,lce. ln dlrectly governed
replaced by general ordinances or—-as retrarri aw apply insofar as they are not
orders o f the resident (Arts. 13 0 , i 3 I p a rf c Procedural law— by
justice in directly governed lands determ ine tv. n ’ ^
in this sphere (Staatsblad, 1932» N o. So') • iW'i extent o f the validity o f adat law
nistration o f justice in directly governed'terrim ™ ,aw alone aPPIles in village adm i-
nco territory (Art. 3a Reg. Adm m . o f Justice).
I I I . In the sphere o f native adminismn-;™, „ e ; .• • ,, .
( 8) adat civil, criminal and procedural law aDDlv insofar C ln se f" 8° Y f rmnS lands;
rendered effective by treaty or agreement and__nc rP as ,not êp. f ordinances
law— by orders o f the resident (Art. 2 1 par 2 C o n s r gr cn ™ lna|_ar*d procedural
j 1 par< 2 Const.3arts. 12 and 13 Self-G ov. Reg. )
T his brief summary makes it quite apparent that even in the field o f
civil and com m ercia l-la w , the native does not live wholly under the
principles o f the adat law. Accordingly, it seem s desirable to outline the
type situations in which the adat law has been encroached upon, and the
native is thus subject to other rules.
E. ENCROACHMENTS UPON THE ADAT LAW
1. Statutory. Legislative enactments have in various ways cut

down the scope of the substantive adat law of the indigenous inhabitants
of the archipelago. In the first place, some statutes from the very date of
their enactment, are intended to encompass all groups of the population.
One such, over a century old, is the ordinance which determines the
statute of limitations in the field of contracts, i.e., which prescribes the
various periods of time beyond which causes of action based on obligations
will not be entertained . 63 Originally this law applied to all groups, but today
it is limited to natives and to foreign orientals other than Chinese . 64 Sim
63 Staatsblad, 18 32 , N o. 4*3 see Engelbrecht, op. cit.} p. 4 5 1.

64 The statute of limitations for Europeans is now arts. 19 6 7-76 of the Civil
Code, and Staatsblad, 1924* No. 556 tor Chinese. Indeed, some courts have held
that the 18 32 law does not even apply to natives, e.g., Batavia Superior Court
o f Law , decision of Apr. 8, 1938, 148 Tijdschrift (1938) 196 j and of July
15. 1938, 149 Tijdschrift (1939) 383 ; Padang Superior Court of L a w , deci
sion of M ay 4, 1939, 150 Tijdschrift (1939) 298 ; but contra, decisions of
June 29, 1933 , 139 Tijdschrift (1934) 288, and Dec. 3 1 , 1936, 148 Tijdschrift
(1938) 482. Cf. Also Carpentier Alting, op. cit.} p. 203.
ilarly, the Mining Law and Mining Ordinance are applicable to all who
participate in such enterprises. 65 Recent years have seen the enactment
of a number of laws of modern tenor that apply to natives and others alike.
Conspicuous are the Workmen’s Compensation Law of 1939, the S e a m e n ’s
Compensation Law of 1940, and the Law pertaining to Insurance Com
panies of 1941.66
Other statutory enactments that at first were directed merely t°
Europeans were in the course of years extended to natives. Thus the
provisions of the Civil Code concerning service contracts were applied to
natives by law of 1879.67 The law governing the control and discipline
on Netherlands Indies merchant ships, enacted in 1873 and now part of
the Commercial Code, was extended, for most of its provisions, to native
seamen in 1933.68 Another instance is provided by the statute which
decreed that the rights and liabilities of non-Europeans flowing from
membership in a corporation recognized as a juristic personality were
to be regulated by the provisions of the Civil Code. 69
Closely related to the above are a series of enactments which specify
that whenever natives participate in a legal transaction that has a European
legal flavor, they are bound by European law. Land leases and long-term
leases are partially regulated by special ordinances and partially by the
provisions of the Civil Code; the occasional native who leases Javanese
land or who enters upon a long-term lease thereby places himself, as
05 Staatsblad, 1899, No. 214 , and 1930, No. 38 ; Engelbrecht, op. cit., pp*
I 7 i 2 f f ., i 7 2 5 f f .
66 Respectively Staatsblad, 1939, No. 2 5 6 ; 1940, N o. 4 4 7 ; 19 4 1 , N o. 1 0 1 .
The last specifically declares (art. 126) that its provisions shall be applicable to
natives in directly governed territory.
67 Arts. 1601-03 °ld Civil Code, plus Staatsblad, 1879, No. 2 56 ; Engelbrecht,
op. cit., p. 392. However, recent legislation has partly re-established the dif
ferentiation of the various ethnic groups in labor contracts, see Schiller, “ L ab o r
Law and Legislation in the Netherlands Indies,” Far Eastern Quarterly , vol. 5
(1946), p p . i76ff.
68 Tide IV of Book II, and Staatsblad, 19 33, No. 49 ; Engelbrecht, op. cit.,
pp. 675 ff.3 752 f.
09 Staatsblad, 19045 No. 272. Other instances of European laws subsequently
made applicable to natives include provisions on gaming, and arbitration pro
cedure, cf. generally Carpentier Alting, op. cit., pp. i92ff.
INTRODUCTION 37
respects these transactions, w ithin the confines o f the E uropean law."®

In another field, a law o f 1882 provides that w ith respect to certain tax
obligations, the statute o f lim itations shall be five years, and for the rest,
“ w ithout regard to the racial group o f the debtor,” be determ ined by the
provisions o f the Civil C ode . 71
T h e legislator has further m ade incursions into th e adat law, not
by provisions of European law m ade applicable to natives, b u t by laws
based on European m odels enacted directly for natives. Early instances
of this include regulations governing the m arriage o f C hristian natives
in the Moluccas and on T im or , 73 and the enactm ent perm itting th e im
prisonm ent of natives for debt in specific situations . 73 M ore recently,
a law has been passed which sets forth the tutelary control th at is to be
imposed on the property of a native who dies w ithout having executed
a testam ent and w ithout any heirs who m ight succeed according to adat
principles of intestate succession . 74 I n order to accom modate the native
to the m odern commercial institutions that are penetrating th e Indies,
in 1939 a num ber of laws for Java and M adura, set forth in full the pro
visions that are to control joint stock companies and corporations composed
entirely o f natives . 75
T here has thus been considerable legislative inroad m ade upon the adat
law o f the native peoples in the private and commercial law fields. M ost
of these are enumerated in the preceding paragraphs, while the m ore num er
ous m inor encroachments by ordinance or decree have been collected,
under the supervision of van Vollenhoven, and published as the “ ordi
nances of native private law ” 76
2. Voluntary acceptance o f European law.— T h e second type o f incur
sion into the adat law is brought about by the native’s voluntary acceptance
70 Staatsblad, 1 9 1 8 , N o . 88 ; Engelbrecht, op. cit., pp. i6 4 7 ff ., and Staatsblad,
19 13» N o . 699 ; Engelbrecht, op. cit., pp. i6 o 5 ff.
71 Staatsblad, 18 8 2 , N o . 2 8 0 ; Engelbrecht, op. cit., p. 4 5 2
72 Staatsblad, 1 8 6 1 , N o . 38 , and 1 8 7 4 , N o . 63 -, Carpentier A ltin g, op, cit.,
p. 206, considers these statutes unconstitutional.
73 Staatsblad, 1 8 7 4 , N o . 94 ; Engelbrecht, op. cit., pp. 1329F.
74 Chaps. I I and I I I o f Staatsblad, 1 9 3 1 , N o . 5 3 ; Engelbrecht, op. cit., p p.
2 S y ff.j applicable solely in Ja v a and M adura.
75 Staatsblad, 1 9 3 9 , N o s. 569 ff.
70 Verordeningen Inlatidsch P riva a trech t, 3rd ed., Zw o lle, 19 3 4 .
of European law.77 It seems that the possibility of shifting from cne legal
system to another was the inspiration of Professor Scholten, a leading force
in the codification of Indies law in the middle of the nineteenth century . 78
Since that time the institution has been recognized in the Constitution,
while the procedure to be observed is contained in an enactment of 1 9 17. 79
According to some authorities, voluntary acceptance is not available to
those natives “who are left in the enjoyment of their own administration
of justice”—that is, within native administration of justice in self-govern
ing lands, 80 but since it is largely the natives in directly governed areas
who take advantage of this possibility, voluntary acceptance has gone quite
some way in limiting the scope of application of adat law. Four different
types of voluntary acceptance of European law are to be noted: (1)
complete acceptance, (2) partial acceptance, (3) acceptance for a particular
transaction, and (4) implied acceptance.
Complete acceptance of European law by a native does not mean that
he falls within the ethnic group of Europeans, but rather that he and his
family are irrevocably bound to the civil and commercial law that is applied
to Europeans.81 Such voluntary acceptance takes place by declaration
before the local administrative authorities, and is published in official and
77 See A . C. Tobi, De vrijzoillige onderwerping aan het Europeesche p riv a a t-

recht (The voluntary acceptance of the European private law), Diss., Batavia,
1927 ; R. D . Kollewijn, "D e onderwerping voor een bepaalde rechtshandeling”
(The acceptance for a particular legal transaction), 129 Tijdschrift (1929), 2 4 7 -
309 ; I. A . Nederburgh, Hoofdstukken over adatrecht (Chapters on adat law), vol.
I ( i 933 )} PP* 59 ff- J W. L . G . Lemaire, “ Gedeeltelijke onderwerping aan het
Europeesche burgerlijk- en handelsrecht en faillissement” (Partial acceptance
o f the European civil and commercial law and bankruptcy), 140 Tijdschrift (19 34 ),
64 1-53. Cf. generally, Carpentier Alting, op. cit., pp. i95ff. ; André de la Porte,
op. cit., pp. 5 if.
78 Cf. Kollewijn, op. cit., pp. 247ff. Although originally destined for the
benefit of Europeans in that it guaranteed a European judge and the application
of European law, it soon became of primary importance in relations between natives
and Europeans, and natives inter sese.
79 Arts. 1 1 and 13 of the General Provisions of Legislation, and art. 75 o f
the former Constitution, are now replaced by art. 1 3 1 , paragraph 4, of the C o n
stitution of 1925. Staatsblad, 19 17, No. 12 , is the Regulation governing the Voluntary
Acceptance of European Private Law ; Engelbrecht, op cit., pp. I74ff.
80 Kollewijn, op. cit., p. 299 ; van Vollenhoven, Adatrecht, vol. II, pp. 539 f.
Contra, André de la Porte, loc. cit. ; Nederburgh, op. cit., pp. ■j'jf.
81 Particularly arts. 1, 12, 14 and 15 of the Regulation cited.
INTRODUCTION 39
unofficial newspapers. A lthough com plete acceptance is not too com m on,
several interesting conflict o f laws problem s have arisen as a result thereof . 82
Partial acceptance of European law places the native in the same status
as foreign orientals (other th an C hinese)83. T his m eans application o f the
Civil Code (for Europeans) except the titles devoted to civil status, m arriage,
m arital relations and property, divorce, paternity, relationship, m inority,
and intestate succession. I t also m eans application o f the Com m ercial
Code and the Bankruptcy Ordinance. F or the rest, the native who partially
accepts European law lives according to his own adat law. T h e chief purpose
served by partial acceptance is to enable the native to enter into bankruptcy
proceedings, but where the voluntary acceptance can be shown to be purely
fictional it has been suggested that the application be denied . 84
T h e native may also accept the European law for a particular legal
transaction . 85 However, it seems that this possibility does not exist
with respect to transactions in the law o f the family or inheritance — a
native cannot choose European forms and rules for his m arriage contract—,
but is primarily concerned w ith contracts involving personal property . 86
T h e acceptance is lim ited to the parties involved, has no consequences
beyond the particular transaction, and has no m eaning where the type o f
transaction is by its very nature within the scope o f European law . 87
Perhaps the m ost interesting type o f voluntary acceptance is that
unknowingly assumed by the native. T his is decreed by the final article of
the 1917 Regulation. W henever a native enters into a legal transaction
which is not covered by the adat law and which is regulated by European
law, he is considered voluntarily to have accepted the European law.
It is classed by the legislator as a type of acceptance to a particular
82 M o st recently, in a Suprem e C o urt decision o f D ec. 5 , 19 4 0 , 1 5 3 T ijd sch rift

( 1 9 4 1 ) 4 74 , and note thereto.
83 A rts. 1 8 -2 5 o f the Regulation cited supra. C f. also the decision o f the
Suprem e Court o f Oct. 8, 1 9 2 5 , 1 2 2 T ijd sch rift 560 .
8i Lem aire, op. cit. supra, note 7 7 .
85 Arts. 2 6 -2 8 o f the Regulation.
80 See K ollewijn, op. cit., pp. 2 7 6 ff. A recent example o f this type o f sub
mission is involved in the decision o f the third cham ber division o f the Batavia
Court o f L a w o f Jan. 2 7 , 19 3 9 , 15 0 Tijd sch rift 19 4 , involving the engrossm ent o f
a notarial instrument.
87 Cf. generally, Carpentier A ltin g, op. cit., pp. I9 7ff.
transaction, but it lacks the act of volition of this type; it has been termed
“silent” acceptance, but rather resembles the “ declaration of application”
of European law, described below. Typical instances of implied acceptance
are the entering into an insurance contract, or the creation of a partnership
under a firm name (vennootschap onder een firma ) .88 Authorities differ
as to whether a native has implicitly accepted European law when he signs
or indorses a negotiable instrument.89 A recent decision on implied
acceptance demonstrates that judicial interpretation of the institution
is still a pertinent problem .90
In sum, voluntary acceptance is significant in transactions involving
members of different ethnic groups in that it enables them to utilize
European law when they so desire, or where they employ forms or
institutions peculiar to that system. It further enables natives to adopt
European law, at least for particular transactions, a practice far more
prevalent than the decisions would indicate. It should be noted that the
native has a considerable freedom of action, in that usually he can choose
the form of law under which he wishes to place himself. The greatest
danger in the institution lies in gradual assumption of competence by
the European court. This position is justified in the case of complete
submission, but in the other types there would seem to be no reason why
the native court should not hear the litigation between natives, for it
may well be that adat law principles are also involved.
3. Change of ethnic status. — There are a number of situations in
which the native undergoes a partial or complete change of status and
thereby cpases to be ruled by the principles of his adat law. Early in the
88 Cf. Kollewijn, op. cit.s pp. 2S^{. ; Supreme Court decision of Jan. 2, I94i>
1 5 3 Tijdschrift 396.
89 Affirmative : Kollewijn, op. cit., pp. 2 8 4 ff.; Carpentier Alting, op. cit., pp.
i99f- Negative : van Arkel, “ Adatrecht en accept” (Adat law and acceptance),
128 Tijdschrift (1929), pp. I3ff.
90 The Superior Native Court of Surabaya held that a house-lease entered
into by a native was a transaction which automatically meant voluntary acceptance
o f European law, but the appellate third chamber of the Batavia Court of L a w
reversed the finding on the ground that hire-sale arrangements (vide infra , pp.
H 5ff.) were customary among the natives of East Java and consequently the trans
action was ruled by principles of adat la w ; however, the decision of the lower court
was affirmed on conflict of laws principles. Batavia Court of L aw decision of Jan.
2 ° , 1939, 150 Tijdschrift 520.
INTRODUCTION 41
nineteenth century the regulation respecting European civil status was

extended to cover the C hristian natives o f portions o f w estern Java , 91
and since th at date C hristian natives throughout the archipelago have
gradually been assimilated to the European position in this respect. A t
the present tim e practically all are subject to a special enactm ent w hich
provides registry of birth, death, m arriage, etc., and which affords
Christian natives a law of persons and o f the family quite sim ilar to th a t
of Europeans.9- An even w ider application o f E uropean law m ay occur
by means o f the “ declaration of applicability o f E uropean law” decreed
by the Governor General. T h e Constitution perm its the executive, w ith
the approval o f the Council o f the Indies, upon the application o f a native,
to declare by private bill th at European law is to be applicable to the
petitioner . 93 T h e practice is quite common among C hristian natives, as
well as Indonesian Chinese. I t has the effect of placing the individual and
his family w ithin the compass of European private law. I t has no effect
on his public law status ; he is still num bered among the native group,
holding office or voting as a m em ber of it . 94 T h e n e t result o f Christian
native status or declaration of applicability is continuance w ithin the
native population group, b u t imposition of European law.
O n the other hand, there are three ways in which the native may
completely change his ethnic group affiliation for good and for all. I f a
native becomes naturalized into a group for whom European law applies
— e.g., acquires N etherlands citizenship —, then he has completely
severed him self and his family from adat law, both public and private . 93
Naturalization is often resorted to in order to be eligible to certain official
positions. T his condition will undoubtedly be altered in the near future,
with the substitution of a N etherlands Indies citizenship for the pre-w ar
91 Staatsblad, 18 4 0 , N o . 2 placed native Christians o f T u g u and D ep ok (in
the vicinity o f Batavia) under the provisions o f the Regulation on C iv il Status,
Staatsblad, 18 2 8 , N o . 50.
92 Staatsblad, 1 9 3 3 , N o . 7 5 ; Engelbrecht, op. c it., pp. 5 2 2 ff. See generally,
André de la Porte, op. cit., p . 5 2 ; Carpentier A ltin g, op. cit., pp. 20 0 ff.
93 A rt. 16 3 paragraph 5 o f the Constitution o f 1 9 2 5 .
94 C f. generally, Ph. Kleintjes, Staatsinstellingen van N ederlattdsch -Itidië (P u b
lic institutions o f Netherlands Indies), vol. I (5th ed., 19 29 ), pp. io if f .
95 C f. Carpentier A ltin g, op, cit., pp. i i o f f . T h e statute on nationality is
Staatsblad, 19 3 7 , N o . 5 1 4 -, Engelbrecht, op. cit., pp. 26ff.
Netherlands citizenship . 96 In the second place, as a result of a mixed

marriage — a marriage in which the parties are subject to different legal
systems — the wife follows the private and public law status of the
husband .97 Thus a native woman, for whom adat law is applicable, passes
into the sphere of European law when she marries a European . 98 And
lastly, the recognition and legitimation of the child born out of wedlock
to a European father and a non-European woman results in the transfer
of the child to the European group. With recognition by the father the
child loses its civil relations to its mother and thereafter has the full status
and law of the group to which its father belongs. The law knows no dual
racial relationship, and thus a choice must be made. I f the parents of the
illegitimate child subsequently marry, it is preferable to speak of legiti
m ation; then the child fall within the European group by reason of the
effect of the mixed marriage law.99
4. Rules contrary to generally recognized principles of equity and
justice. — It appears at first sight that the old statutory provision that
rules which are in conflict with generally recognized principles of equity
and justice cannot be applied by the judge is an encroachment upon the
adat law.100 To many, the principles of equity and justice m ust be those
of western law, and consequently the judge is free to override adat law
rules which he thinks violate European ideas of justice .101 But there long
has been opposition to such an interpretation of the statute. This very
opposition may be the reason why the new Constitution has abrogated
06 One of the major problems dealt with by the Visman Commission was the
desire o f all groups for and Indies citizenship, see Verslag van de Cotntnissie to t
bestudeenng van staatsrechtelijke hervormingen (Report o f the Committee to Stu d y
Public L a w Reforms), vol. II (19 41), pp. 9 8-14 7.
97 Regulation on Mixed Marriages, Staatsblad, 1898, No. 15 8 ; Engelbrecht,
op. cit., p. 595 • Th is statute does not apply to marriages between natives whose
tribal adat differs.
98 C f . K . D . Kollewijn, “ Gemengde huwelijken” (Mixed marriages), D e Stuzu ,
vol. 1 ( 193 °) , n0- I0i J* van Hoeve, “ Gemengde huwelijken” , 1 3 5 Tijdsch rift
(19 32 ), pp. 4 5 iff-
09 Generally on recognition and legitimation, see Carpentier Alting, op. cit.,
pp. io sff.
100 Originally art. 1 1 of General Provisions on Legislation, replaced by art.
75 paragraph 3 of the Constitution of 1854.
101 André de la Porte, op. cit., pp. 4ôff. ; I. A . Nederburgh, Hoofdstukken
over adatrecht (Chapters on Adat Law ), vol. I (19 33), pp. 63ff.
INTRODUCTION 43
this provision and substituted a clause whereby the legislator — not the
judge — may depart from adat law whenever the general interest or social
needs require .102 However, insofar as the legislator has not departed from
adat law, the old provision of the Constitution of 1854 is on the books.103
But recent decisions, with which modern commentators are in accoid , 10’1
interpret the provision as a directive to the judge, in the formation and
application of the adat law, to test a given adat rule in the light of social
reality and in connection with the demands of humanity. So the right
of a desa to dispose of nuclear village land 105 was directly held not to
be in conflict with “general rules of equity and justice ” . 100 On the other
hand, the adat kebiasaan (immemorial adat) of the Minahassa, which
denies liability of a master for tortious acts committed by a servant in the
course of employment and only recognizes civil liability for one’s own
acts, was held to be in conflict with general principles of equity and justice,
in that “such a rule may well apply in a small, isolated community wherein
transactions with third persons are infrequent, but not in a society with
intensive, expanded commercial intercourse such as the Minahassa” .107
In other words, the constitutional protection of law in accord with equity
and justice is nothing more than a directive to the judge to test customary
practices and judicial precedents as he would enactments of the legisla
ture .108 Thus, not a possible encroachment upon the adat law, but a rule
of interpretation of adat law in the light of “public policy and apparent
social necessity.”
102 Art. 1 3 1 paragraph 2 b ; Engelbrecht, op. cit., p. 62.

i°3 decision o f Superior Native Court o f Magelang o f Aug. 8, 1 9 3 1 , 1 3 7
Tijdschrift 1 3 6 ; contra: van Vollenhoven, Adatrecht, vol. I I, pp. 5 3 if.
101 Carpentier Alting, op. cit., pp. 2 0 7 f f .; van Vollenhoven, op. cit., pp. 3 8 3 ^ ;
ter Haar, 148 Tijdschrift (1938), p. 399 Soepomo, 15 0 Tijdschrift (1939), p. 6 7 9 ;
Wertheim, 150 Tijdschrift (1939), p. 681.
105 Vide infra, pp. 85ff.
100 Superior Native Court of Purwokerto, decision o f June 24, 19 3 7 , 148
Tijdschrift 395.
107 Superior Native Court of Menado, decision of Dec. 8, 19 38 , 15 0 T ijd
schrift 676.
108 So ter Haar and Soepomo, loc. cit supra, note 5. Cf. also B. ter Haar,
H et adatf. rivaatrecht van Nederlandsch-Indie in wetenschap, praktijk en onderzoijs
Th e Adat private law of Netherlands Indies in science, practice and education)
I 937 > PP- iiff-
5. Summary.—Statistics are not available as to the num ber of

persons and families who, as the result of one or other of the institutions
described, have moved out of the sphere of adat law, either partially or
completely. Among the groups of natives who have been m ore exposed
to occidental culture the number is considerable .109 It is difficult to predict
what will be the view of the nationalist government upon this problem .
I t can be argued that preservation of the traditional law, the adat law, is a
sine qua non of a national state. Or conversely, to be ranked among world
states, even as a lesser power, it is necessary that a system of law be provided
that is at least comparable to Anglo-American or continental European
law, and that would not be the adat law. In any event, the place o f adat
law and the extent of the encroachment thereon, promises to be one o f
the most vital of the post-war Indonesian problems.
IV. THE SCOPE OF THE VOLUME
T he previous pages have sought to place the subject m atter o f ter

Haar’s book in its proper setting. It is only proper, now, to call attention
to certain aspects of the topic of adat law which are om itted from
consideration, and which a broad definition of the title m ight have included.
Adat law, as has been described, is a term employed to com prehend
the legal aspects of the customary practices (adat) of the peoples o f the
Indonesian archipelago. But the indigenous inhabitants—and the E uro
peans—are not the only occupants of the islands. T here is the group
known as foreign orientals, those persons born in the Indies whose ultim ate
ancestry was oriental (other than Indonesia), primarily China, British
India and Arabia. The Constitution of 1854 granted these peoples the
right to their own religious and customary practices, their own “ adat
law ” .110 In the course of time there have been considerable inroads upon
the adat law of the foreign orientals—part of the law of the family for
the Chinese, and the law of the family and inheritance for the rem ainder
109 Cf. B . ter Haar, "W estern influence on the law for the native population,”
op. cit. supra, note 4 5, pp. is8 ff.
110 Art. 75 o f the Constitution, now art. 1 3 1 paragraph 2b o f the Constitution
o f 19 25.
INTRODUCTION 45
of the foreign orientals, are all rw „ i r- i .

. i u- at are ^ — but w ât 1S stLU retained
has been the su ject of extensive monographs.111 The most-interesting
question is w e er t e adat law of foreign orientals shall be the law of
. ese Pe0P es 35 1C^ Xlsts ln the countries of their origin, or as it exists
in the country of their adoption. The Tnrfi« courts have resolved this
question in favor of the latter, so that the adat law of foreign orientals is
a field of Indonesian law, quite unrelated to Chinese or other oriental
law.112 Ter Haar has seen fit to omit this field from his study, possibly
because there already existed adequate treatments of the subject. The
evergrowing complex of decisions, however, calls for a new monograph .113
The justification for the omission of almost all reference to adat
procedure chapter X II is an exception—is not so apparent. The
adjective portion of adat law has not been comprehensively treated since
ter Haar presented his dissertation in 1915,114 and the few subsequent
studies merely demonstrate the necessity of further basic work in this
field .115 Whether because of its complexity or because ter Haar planned
a future—and now never to be written—volume, the English reader
cannot at present acquaint himself with this fascinating and vital phase
of adat law.
111 Fundamental is the work o f C. van Vollenhoven, in his Adatrecht, vol. II,
pp. 1 - 1 2 5 ; a summary of the field by Andre de la Porte, op. cit., pp. 56-74. Cf.
also I. Cassutto, Handleiding tot de stitdie van het adatrecht van Nederlandsch-Ittdie
(Introduction to the Study of the Adat L a w of Netherlands Indies), 1936. pp.
3 2 2 -4 7 . . . . . .
112 Significant decisions collected, s.v. „Vreem de Oosterlingen” , in the indices
to the T ijd sch rift; o f recent date, see the decisions in 142 Tijdschrift 159 , 492;
14 5 idem, 397 i idem, I ; 148 idem, 6 13 ; 150 idem, 473.
113 Most recent is S. T . Han, Bijdrage tot de kennis van het fam ilie- en erfrecht
der Chinezen in Nederlandsch - Indie (Contribution to an understanding of the
family and inheritance law o f the Chinese in Netherlands Indies), Diss., Utrecht,
19361 ,
114 H et adatproces der inlanders (The adat procedure of the natives), Diss.,
Leiden, 1915*
115 A . Mieremet, D e hedendaagsche inheemsche rechtspraak in Nederlandsch-
Indie en haar regeltng (The present-day native administration of justice and its
regulation), 1919- PP; 100 -24 j S. Jaarsma, Bewijsmiddelen voor recht op grond
in Nederlandsch- Indie (The kinds of evidence available for rights in land in
Netherlands Indies), 19 23 ; G . Wijers, De gang van het gewijsde in burgerlijke Iatid-
raadszaken (The examination of witnesses in civil matters before the Superior
Native Court), 19 3 1 ; Wijers, 138 Tijdschrift (1933)3 pp. 1 4 3 -8 8 , ter Haar, 140
140 Tijdschrift (1934), pp. 43ff.
46
Finally, ter Haar notes that all discussion of conflict of laws is omitted
frc-m his volume.116 It can readily be understood that the courts are daily
faced with the question of determining what law is to be applied when
the litigants are subject to the laws of differing ethnic groups. T he topic
has in recent years been extensively treated by Professor Kollewijn, of
the University of Leiden, and by others, and one of the present editors
has presented a summary for the English-reading public.117 Conflict of
laws in Indonesia is described as being either international, interregional,
interracial or interlocal in nature. The first two of these do not concern
adat law in that they deal with the rules to be observed in determining,
respectively, the applicable law in litigation between an Indonesian and
a foreigner, or between litigants residing in different territories of the
Kingdom of the Netherlands. In the case of interracial law, however, the
judge has to determine whether European law or adat law, for example,
is to be applied, while in interlocal law—where the litigants are subject
to the adat law of different law-areas-the problem is to select the adat
law of the proper area. The rules of interracial and interlocal conf lict of
laws are in the process of being framed by the courts-the concepts
of lex laa contractus, lex fori, and the like will not do—and reallv have
no direct connection with adat law as such. Consequently, ter Haar is
justified in omitting this topic, although it is necessary fx*. j
lands"“ “ indigei“ US «“^ e

In this introduction the culture, the nature f
the setting in which adat law is to be found all t, ^ law' areas’
is our hope that the reader may turn to the <■ 1VC been descrlbed- 11
understanding of the circumstanced i„ w h ich 'th ^
primitive legal systems exists. 1S most elaborate of
116 Page 9, note 2, of the original

nr Schiller, "Conflict of Laws in Indonesia” P ^
( 1942), PP- 3 i - 47 j with all the significant hiKr 5 ar Eastern O un*,» 1 1
" » Part of the text of ter Haar that seemeTw ^ n0ted th« « n .
inordinate accumulation of examnles W to thc editors
editors is endosed withta s q je £
A U T H O R ’S P R E F A C E
T H IS IN TR O D U CTIO N to the study of the adat law of the native

population of the Netherlands East Indies endeavors to present two types
of generalization. The first is through the description of the characteristic
features of Indonesian legal institutions, legal relations, and legal acts in
such a way that the principles and the system of the adat law become
clear and understandable ; the second is through indication of the factors
that affect the nature and modification of adat law, and the social circum
stances which promote or counteract particular characteristics o f it. At
the same time, this book strives to relate these generalized formulations
to particular forms of institutions, relations, and acts, in order to give
some idea of the concrete significance of the typologically described
material. Thus, for example, it should immediately be recognized that
the matrilineal system of relationship is of importance chiefly for the
adat law of Minangkabau ; that the rearing of children under contract
appears to be a specialty of the Minahassa ; that appanage belongs to the
princedoms ; and that the community right of disposal and sharecropping
of cattle occur in the communal law of almost all of the law-areas. Local
forms of law are reported at every turn, either as examples of a concrete
institution, which the abstract description has in view, or to point out
local features and local deviations. The positive adat law of various regions
often is indicated by reporting native law terms. A fairly copious survey
is given of the structure of the autonomous communities, which are the
foundation of the territorial structure on which adat law acts. I t needs no
demonstration that the compilation of a succinct introduction to the study
of adat law thus becomes in part a task of right selection from the over
abundant material. The objection that an element of arbitrariness
necessarily plays a part in this is to some extent mitigated by the fact
that the arbitrariness relates only to illustrations, not to the typological
description itself, although there is selection also in the incomplete record
ing of local rules of law which are not covered by the type. This last is
48
ADAT LAW IN INDONESIA 49
unavoidable in an introduction which aims to remain succinct and to retain

concrete relevance.
Naturally, the type of literature relating to adat law exerts great
influence on the author’s choice of materials. With respect to the eastern
part of the archipelago (east of Celebes and Bali with the exception of
Ambon and the Uliasers), the treatment of adat law by ethnological field
workers with fiist-hand information is almost wholly lacking, while
published decisions of courts are raie and even data by untrained ethno
graphers are scarcely to be found. It would nevertheless be incorrect to
exclude these law-areas in the description of the system of adat law, though
great caution is imperative in the use of references.
This book has been written for beginners in the study of adat law,
particularly for students of the Law College [of Batavia] ; it will give a
general idea, which can make the study of the positive adat law of a par
ticular law-area more fruitful; it will at the same time show field workers
the general framework of the adat law with which they have to deal in
their particular work.
It cannot be denied, but only regretted, that an abstract systematic
treatment of the characteristic features of adat law, such as is here under
taken, is like a jati tree in the east monsoon. There is no room here for the
leaves and the blossoms which give color and fragrance and blocm to a
monograph on the living adat law of this or that actual community—
there is a place only for the stem, the branches, and the buds.
Regarding “precedence or relegation to the background”, “ usefulness
or uselessness”, “alarming” or “not alarming”, “ difference” , “excellence
or faultiness” of adat law—not a word will be found in this book. Realism
teaches that for the time being the unwritten civil law of the native
populations will not be replaced; therefore, from a practical point of view
it also continues to be deserving of objective treatment.
Nor will a word be said regarding the similarity or non-similarity of
adat law with Netherlands law or regarding parallels of adat law with the
law of African, Germanic, Hebrew, or other autonomous communities. As
an object of scientific study a careful comparison of two legal institutions
may be of value. Such a comparison of adat law with Netherlands law has
50 a u t h o r ’s p r e f a c e
to my knowledge never been undertaken by anyone. Not infrequently,

however, superficial comparison of legal institutions or rules of law that
have been removed from their context has been tried, but it always leads
to misunderstandings and frequently to misuse of the facts. The significance
of Western jurisprudence and jurists for the science of adat law is something
else again, and hardly to be overestimated.
The material for this description has been drawn from van Vollen-
hoven’s Adatrecht and the subsequent adat law treatises and published
decisions ; at the end of the fourteenth chapter* something more detailed
will be said regarding the use of sources, and in the last chapter a survey
of the literature is given. Some data have been derived from studies of
fifth-year students. 2
Native statutory law (concerning guardianship, the marriage o f
Christians, co-operauve association, navigation, etc.) is not treated in this
book, but only mentioned now and then.
As regards the sequence of the chapters : Following the first chapter,
dealing principally with the structure of the autonomous communities,
is the chapter on land law, because the ricrfit- *u
- , . r . . n Sht of the community to the
land is of primary importance. There might just as well have followed
the chapter on the law of relationship (with the law of marriage and the
law of inheritance), because that would form a v * u u j
, j u , a contmuity to what had
ü- *“t•■r ;»H ” , : dzzz

-"r r
already been said^regarding the kinship factor in the communities; or
However, the following sequence was chn^n • i • ,

•U 1 A twncartinn. o j cnosen. social organization—land
nghts, land transaction, and transactions in which land is in v o lv e d -
obligations— endowed foundations—law nf i , .
i Iottt c • u • persons—law of relationship
-m a rria g e law -law of .nhentance-law 0f delicts. The connection be
tween these subjects has been indicated as far as possibie by references.
1 See pages 2 20 -233.

’ Students in the L a w School o f the University o f Batavia, Java.
The brief notes at the end of the book regarding the influence of the
time factor, legal terminology, and precedent and the judge are for the
purpose of bringing to mind general problems which are associated with
these subjects.*
* The author’s introductory chapter on Constitutional Basis and Sphere

o f the Adat La w , pp. 9 -12 of the original Dutch edition, has been incorporated
in the Editor’s Introduction, supra , p. 32.
CHAPTER I
SO C IA L O R G A N IZ A T IO N
A. THE COMMUNITY AND SOCIETY
X T O MATTER how the communal life of the peoples of the Indies is ap-
^ proached, the observer is struck by the presence of certain fundamental
social units in interaction with the non-material environment, the external
environment and parts of the material world. These social units may
well be called autonomous groups. A number of individuals who feel them
selves united participate in legal life as a single unit. When certain of
them act, all are benefited or injured together. An internal order exists
among them in accordance with which individuals and groups may have
precedence, power and authority. Material objects—land, water, crops,
temples and buildings—are subject to the joint care of the group. They
are to be maintained and kept clean for the benefit of supernatural powers.
The group jointly profits from these things, and from these things they
exclude non-members.
The individual accepts the autonomous community as necessary
and natural. To the Indonesian the possibility of dissolution of the group
is unthinkable. Only in the case of localized groups is it possible for the !
individual to break off his group affiliation by moving out.
Modern ethnology has revealed ancient native conceptions of the
firm and ordered unity of the community, which is sometimes thought
of as being of human form with dual, quadrupal or other divisions, each
with its functionaries in their proper places. Such concepts are of greatest
significance in arriving at an understanding of the earlier organization of
Indonesian communities as they were related to the cosmic and mundane
worlds.
53
The sacred community possessions1 are physical symbols or material

embodiments of the vital energy, the magical potency, of the community.
They are eloquent proofs of the genuine reality of community solidarity,
as are the communal houses of various Indonesian peoples, and the
communal boats of the Kei and Aru Islanders.
Until very recently the chief function of the community in more
than one law-area2 was religious. The primary consciousness of the people
was one of being united for magico-religious activities.
In Indonesian communities, the kinship bond of common descent
from a single ancestor is at times of great, even decisive, importance.
But then, it may be of little or no weight in their social organization.
With their chiefs, kin group elders, often also class hierarchies, the
small communities appear, on the one hand, as autonomous units in which
adat law is generated and maintained as a continuous process in legal
transactions by the decisions of the bearers of authority—the chiefs and
assemblies. On the other hand, with their rights to l&nd, water, crops,
buildings, sacred objects, and other property, such communities are to
be seen as legal personalities.
In short, the native communities may be called ordered groups of
permanent character, possessing their own government and their own
property, material and incorporeal.
1. Temtonal and kinship factors.—The first requisite for an
understanding of the role of the self-governing community in the social
structure of the archipelago is a realization of the significance of territorial
and kinship factors in its origin and occurrence. Autonomous commu
nities in which the territorial factor, the common concern with a defined
area, has no significance are rare and unimportant. A typical example
of such communities is offered by the Gayo. They were bound exclusively
by clan bonds, and their clans lived intermingled among each other—
1 Such as the "punen” of the Pagaians, the village “ pusaka” of the N gaju and
Klemantan Dyak, the weapons of the Toraja, the ornaments in South Celebes, the
stones of the sub-clans in Ambon, the Sumban “ marapu ” , the Balinese village
“ lontar” .
2 See pages 6f. for the nature of this term.
SOCIAL ORGANIZATION 55
a situation which seems to be changing. Large kinship units not linked to

any given stretch of territory also can be noted among many peoples today.
But when compared with the territorially based units, they are not to be
considered autonomous communities, however significant they may
appear to be in other respects. I f this is putting it too strongly, the
autonomy of such communities is far in the background—as, for example,
in the case of the community whose autonomy is apparent only on a day
of worship of the common ancestor in whose burial place the people
continue to show a common concern.
On the other hand, communities in which the kinship factor has no
significance are numerous in the archipelago.3 Even though a link to
kinship organization may be clear in the case of some of these communities,
they are now solely territorial in character.
Both factors, the kinship and the territorial, dominate the structure
of the “ uma” on Mentawei, the “ euri” on Nias, the “huta” and “kuria”
of the Batak, the “nagari” of Minangkabau, the “marga” and “ dusun”
in a part of South Sumatra ,4 the villages and regional communities of the
Toraja, of the Great East and the Timor group, and the tribes of Borneo.
This requires that both factors be studied with respect to the local situation
in every case.
Before describing any concrete examples, the main outline and
general points of likeness and difference in the operation of the kinship
and territorial principles should be more thoroughly differentiated and
delimited.
Under the heading of kinship relations the distinction of patrilineal,
matrilineal, bilateral and alternating organization comes into first con
sideration.
By patrilineal organization must be understood the reckoning of
common descent (natural or artificial) from one common male ancestor
3 Such are the Javanese, Sundanese, Madurese, and Balinese “ desa,” the
“ gampong” of Atjeh, the villages of the M alay region and Bangka and Billiton,
some of the regional communities o f South Sumatra, the villages and regional
communities of South Celebes, the “ negory” of the Minahasa and Am bon.
4 [ The terms in this sentence are the native words for the community in
each of these lands.]
along the male line by means of which membership in the functioning

and discernible kinship groups, i.e, clans or sub-clans, is determined.
The Nias, Gayo, Batak and some of the Lampong peoples are typical of
this. In Bali such organization is still clearly noticeable. It is frequent
in the Moluccas and the Timor archipelago.
On the other hand, matrilineal organization prevails in Minangkabau,
Korinchi, Semendo, and among a few of the lesser peoples in the Great
East. In these societies the social group based on descent along the female
line from a single female ancestor is the important unit in legal relations.
Connected with the unilateral kinship group is the practice of exo
gamy : the prohibition of marriage to a member of one’s own clan or
sub-clan.
If the two types of unilateral kinship groups are socially organized
and discernible as groups within a single society, according to adat law,
then we can speak of double unilateral organization, in which each person
is a member of both his patrilineal and his matrilineal clan. Perhaps the
Timor archipelago (the Mollo on Timor, the Kodi on Sumba) provides
an Indonesian example of this, which is of more common occurrence in
Melanesia.
Elsewhere, the relationship factor consists not in unilateral clan
organization but in a bilateral grouping: the conjugal organization in
which the family complexes from the father’s and the m other’s side are
of essentially equal weight in legal relations. This is found in many regions
of Borneo and Celebes. Such bilateral groups maintain internal tribal
cohesion in all directions by means of endogamy : marriage within the tribe.
Finally, the principle of relationship in some groups, such as the
Rejang is neither patrilineal, nor bilateral, but is based on a system in
which relationship is determined by the form of marriage. T he marriage
form which makes the child belong to the father’s clan (therefore called
patriarchal marriage) occurs just as frequently as the marriage form which
makes the child belong to the clan of the mother. This gives us what is
known as alternating unilateral kinship organization. (See p. 173.)
In addition, there is a third (bilateral) marriage form in accordance
with which the child is placed in an equal position towards the clans of
the father and mother. In this case, under certain circumstances, a transfer
of children from the mother’s clan to the father’s may take place.
(See p. 178.)
Territorial organization may conveniently be classified as of three
types. Not that the actual situation can be sharply split into three categories,
but they may serve as three focal points around which may be grouped the
several forms and transitional varieties which actually occur. These three
types are : the village community, the regional community, and the union
of villages.
If one limited place of common living binds the community to its
own territory (with possibly a few dependent hamlets situated nearby),
with the community chief and practically all the other community func
tionaries living together in the village settlement, then we have the typical
Indonesian village community as, for example, the Javanese and Balinese
“desa” .
If a number of defined settlements are located in a particular region,
each with a certain degree of independence and each with its own chief,
and yet all sub-divisions of a larger community possessed of its own
boundaries and distinctive administration with authority over the disposal
of the virgin wastelands lying round-about the areas of occupied and
abandoned fields, then we have the typical regional community. In this,
the mother village, the original place of settlement, and the off-shoot,
villages, all have their places as sub-communities with a certain degree
of independence. Examples of this type are the Angkola or Mandailing
“kuria” with its “huta” , and the South Sumatra “marga” with its “dusun” .
I f nearby village communities equipped with their individual ad
ministrations and territories join in agreement or continue a relationship
based on ccmmon origin for the purpose of looking after such common
interests as the construction of an aqueduct, defense against enemies, or
administration of justice—maintaining a co-operative inter-village admin
istration without a right of disposal vested in the individual villages—,
then we have the typical village union. Examples may be found in the cen
tral Batak country.
In any event, the small village community is the focal living place.
It may be either entirely independent, or encompassed in a larger com

munity, or joined with other communities of equal status for incidental
purposes arising out of particular interests. The kinship system of the
people is of importance for the form the small village community takes
with respect to these three possibilities.
However, all sorts of circumstances may result in deviations from
these three typical forms. In addition, outside influences sometimes make
the native forms difficult to discern. There are typical regional communities
that have originated through the fission of lesser communities from the
parent village, but which retain a consciousness of their lesser ag e; but
there are also village communities in which the hamlets are in importance
equal to the parent village, albeit without attaining complete equality.
Thus, the Minangkabau “nagari” is very similar to the earlier south
Minangkabau regional community, the “laras” . For another example,
united hamlets may be called a village when actually they are more like
an artificial regional community. Territorial communities, in which the
people live scattered in small groups of houses or homesteads, as on
Madura, are traditionally called villages, even as a Sundanese regional
community is called “ desa.”
“ Desa” and “ nagari” , the Indonesian names for villages, point ety-
mologically to regional communities. When regional communities are
recognized as autonomous bodies, we call them territories [“het landschap”
in Dutch] of which there are many. The principalities, the large territories,
are more or less despotic impositions on the regional communities. And
there is no sharp dividing line between the two extremes.
With the difference between kinship organization and territorial
group in mind, wre can now make some detailed observations concerning
the interaction of the two factors in producing the structural nature of
the above-mentioned community types. Territorial boundaries, usually
of a natural order, separate the members of the kinship group to a degree
from their relatives who live elsewhere. Thus, autonomous kin-based
communities exist as independent sub-clans with an organic relation to
the land of the village or region. This association of the group with its
land continues to operate even in the case of prolonged absence, which
in principle is held to be temporary. On the other hand, the fact of common

residence on the same soil joins unrelated parts of different clans together
in a united, autonomous community. The clans in their entirety are not
autonomous communities. They do not act as a unit; they have no adminis
tration and hold no property. They are simple groups of unilaterally related
persons, living scattered over ,a large area; they can be recognized by their
proper names, often connected with a myth about their origin and growth. So
it is on Nias, among the Bataks, in Minangkabau, in Rejang, and elsewhere.
What we regard as autonomous communities are the sub-clans
established in one village or one region. Such sub-clans derive their origin
from the founder or founders of the village or region, or from an ancestor
admitted as a newcomer into a village or region after its establishment.
Clan members from elsewhere may easily be permitted by their own clan
relatives to live in a village, but until they are accepted by the local clan
population they remain linked to their original group.
The interaction of the kinship and territorial factors may lead to
different types of social organization, and these can at times be found
side by side in a given territory.
In the first place, there is the sub-clan, which is established on its
own territory in intensive interaction with its neighboring sub-clans, if
for no other reason than exogamy. Even so, the unit of social organization,
the village or regional community, is formed by the sub-clans in its terri
tory. Such may be the case in the interior cf Buru.
In the next situation, there is the sub-clan located in its own territory
along with intruders from other clans. These persons are relegated to
a subordinate citizenship status in the community. That is to say, their
position is limited with respect to the exercise of authority and in indi
vidual rights to land. In other respects they are esteemed as indispensable
citizens. 5 In such communities there are three sets of relationship: that
of blood relatives, of blood relatives to affinals, and that of co-villagers.
5 Such are the Toba-Bataks with their dominant “ marga” and their co-villagers
from other "m arga ” ; also, the Rejang people with their regional communities
made up of the clan members (bang mego), their affinal relatives and naturalized
members from other locations (although in Rejang the lower status of this group
has mostly disappeared).
Next there is the situation in which an original sub-clan has come

under the domination of an alien sub-clan which has entered its territory
and gained ascendancy as a dominant and ruling caste. The rulers remain,
however, an out-group as over against the intimate association of the
original group with the land. The headman of the original local clan retains
the functions of land guardian, as in Central and East Sumba. (See p. 101).
In the fourth instance, various unrelated sub-clans (or possibly some
sub-clans which are related according to origin myths but no longer practice
exogamy) keep to their separate divisions within the territory as they were
parceUed out among the original settlers. Thus they jointly constitute a
community built up of contiguous, unrelated sub-clan holdings.6
In the fifth instance, various unrelated sub-dans constitute a united
community jointly sharing the entire territory 7
To sum up the cases presented above: the autonomous community,
which may properly be called the unit 0f social organization . , 1
of an inteimingled territorial and kinship nature. A n ™ ’ I
the community from the outside can attain tnemV v ” commS m t0
accepted in a native kinship group and if he settles ^ ^ ^ ”
Association by relationship and connection by land are h l t W temt0ry;
significance for the community. both of structural
When there is no unilateral kinship orRaniyarin« j
system, but when related persons assert their relati ’ w n° C‘an
along both the male and female lines, there * ons P even-handedly
and Central Celebes) be communities of r d ^ mstances (Borneo
boundaries. These may be termed the tribe* ^ delim*tec* territorial
being either independent or a segment of t h e ^ the tribal unit
e. Even when unrelated
of wh. .
7 Examples: some "naeari’^ S i m * enkulen- ’ are composed
8 In this volume the term clan ( c w f ngl? bau5 an<* the R P;a ,
sub-tribe (geslacht), extended familv -iClan (âneedeelrS -u ^ n'
(small) family (gezin) are used in the folio ■ y Sroup (famil? ^ e (stam^
large, unilaterally organized kinship grouo t h i ? Senses : Clan is^ se rtt r COn’Ugal
relatiVcs which functions

\
persons win a place in the community by virtue of prolonged residence, 9

the original members of the tribe may continue to hold a noticeably favored
position, especially with respect to land rights, as for example, in Borneo.
In Balinese, and perhaps also in Javanese villages, first, second and third
class citizenship arises from this situation.
Finally, there are villages and regional communities that are free
from the influence of the kinship factor and without privileged positions
for descendants of the founders; in these no class distinctions of citizen
ship exist. Or, where differences do occur, it is the owner of a compound
or farm land who has first rank.
2. Social classes._A systematic division of citizens into classes is
characteristic of the self-governing political communities of many law-
areas in Indonesia. The principles of division are variable, however.
Possession of land has just been mentioned as a characteristic of
class status Possession of agricultural land (sometimes of particular fields),
in addition to a compound, put the owner in the highest class; title to a
compound alone or to marginal fields put one in the second class, and
landless persons are relegated to the lowest class. The scheme admits of
intermediary and variable types. This classification by land-ownership
is typical for Java and Bali. The special social status of land owners who
are members of the original kinship group in a territorialized community 10
seems to rest on the same idea. Something similar seems to be noted in
the respect given to family groups of “ nagari” founders over the more
recently arrived kin groups among the Minangkabau. T he superior status
of a ruling “marga” in the Batak territory seems to be of the same order.
In many regions of Sumatra, Borneo, Celebes, and Timor, a chieftain
class developed internally. It is maintained by an Indonesian right of
• or bilateral organization. It can therefore be used

as a unit in either ^ sub-clan or sub-tribe, or it may refer to smaller units
synonymously with lb_trjbe, but units which are superior to the conjugal or
within the 6ub-clan or su D -iriu c, ^
small families. ,„ rritorializing the community, since the basis of communalism
• i. c process of t q plac£ rather than blood relationship,
is the fact of joint li g „ g asai” in the mixed villages on the Barito R iver in
10 Fo r instance, tne
Borneo.
inheritance with election,11 prohibition of marriage between chief’s

daughters and lower-class men, and the taking of a girl of the chieftain
class as the principal wife of a chief’s son, with lower-class girls as secondary
wives. The amount of bride-price or marriage gift, where these occur, is
higher for girls of the chieftain class than for daughters of lesser men,
who may even be prohibited from demanding too high a bride-price.
Delicts against chiefs call foi heavier legal penalties. The chiefs bear names
and titles unattainable by the ccmmon man. In the case of customary
ceremonies, precedence is given and respect shown to persons of the
chieftain class in the protocol of sitting at the table, in the quality of the
dishes in which the food appears, in the portion of the slaughtered animal
which is served to each. The manner of dress for chiefs differs from that
of ordinary people, and the mode of burial of chiefs differs from that of
the little man and is forbidden to the latter. By means of such customs,
difference in class is given a distinctive realization in daily affairs and
results in many legal ramifications.
In territories practicing village or tribal endogamy, the chiefs, in
order to maintain their class, go outside to seek a wife. The result is class
endogamy. In various places, chiefs may raise their rank by making
custcmary payments to the other chiefs. Among the Abung in the Lam-
pongs, the class of chieftains (the “penjimbang”) has been overrun through
excessive purchase of higher rank and title.
It has been suggested that ancient clan distinctions are the original
basis of class distinctions in South Celebes. Primitive principles of clas
sification have also probably contributed to the fcimation of groups and
class divisions.
A general class criterion of long standing has consisted in subservience
and dependence of the vanquished, debtors, and their offspring. Vestiges
of the slave class, now extinct, may in many communities be discerned
in marriage practices, amount of bride-price, and treatment at festivals.
11 [Election: a technical legal tenn meaning, “ the selection of one person from
a specified class to discharge certain duties in a state, corporation, or society.”
Bouvier's Law Dictionary (Baldwin’s Edition), N ew York, p. 336.]
The triad consisting of chieftain class, commoners, and slaves was vciy
common. Nevertheless, there are people, as for example, the Baree-
speaking Torajas, among whom a chieftain class never arose. And there
are others who have never known a class of menials. While differentiation
into classes is no longer apparent in Minahasa, and in Ambon and the
Uliasers, a previous division into classes on many islands of the Moluccas
has led to sharply defined groups, each practicing endogamy and with
its own names (“melmel”, “renren” and “iriri” in the Kei Islands;
“mama” , “ wuhru”, and “atan” on K isar; etc.)
3. Status of aliens.—Assimilation of alien Indonesians into the
local community is an age-old process. Firstly, they came as slaves. As
such they brought new blood and filled a place of economic importance,
but as menials they could not penetrate to the heart of the social structure.
Furthermore, both males and females entered through mairiage. Adoptive
marriage, in some areas, is contracted preferentially with outside males.
Aside frcm slavery and marriage, certain individual strangers also get into
the hems group. They enter the kinship-based communities by adoption
or by attachment to a family in ways regulated by adat law (e.g., the ‘ anaq
samang” attached to the “induq samang” in Minangkabau).
A stranger gains citizenship in a territorially-based community only
after a long residence with inferior status. Permission of the community
administration is a requisite. Sometimes that must be sought with the
offering of a customary gift of rice and a fowl or a payment (wang adat).
Even after permission has been obtained, some time must elapse before
the stranger is included in the community. In the villages of Ambon this
may take generations, and the descendants of the immigrants attain the
position of members almost imperceptibly.
If the outsiders are of a different religion, as Mohammedans in
Christian villages, they are never regarded as members. It is just as
impossible for a non-Hindu Indonesian to become a member of a Balinese
village. Likewise, when the Hindu natives of Bali are converted to Chris
tianity, the Christians wish to retain their village membership, but the
community tries to prevent this, since the converts cannot continue, to
meet all their community obligations. If an alien is once admitted to the
adat community, he has to bear the full burden of citizenship and enjoys
all its rights .12
While admission to the community may be by individuals, it may
also be by groups ; for in certain law-areas where there are regional com
munities strangers may be given permission to found an entire village,
after payment of the “wang adat.” However, in cases in which the receiving
group itself is divided into sub-groups or classes with different rights,
the position of the newcomer rests on his relation to a particular group.
His mere admission to the community decides nothing in itself. W hether,
for example, he is eligible to be chief, whether he can obtain a citizen’s
possession of land and has to bear the burdens connected with it, whether
he shares in the profits of the right of disposal—all these matters depend
on the exact nature of his associations.
4. The formation of new communities. — The form assumed by a
newly born community depends on a variety of circumstances. Fission,
or breaking off from a parent community, is brought about by all sorts
of motives, such as desire for independence, lack of sufficient forests or
farming land, family quarrels, etc. The circumstances which the new
group encounters—whether the land is occupied or unoccupied territory,
hostile or friendly communities, river valleys, islands, or flat country—
all operate to give the new community its particular structure. The structure
of the parent community prior to the fission also is of great importance.
Increased contact with strangers, new economic circumstances and new
religious ways of thought steadily, albeit slowly, effect changes.
Fission on a large scale leads to colonization. The colonists live among
the autochthonous population as separate groups. Javanese laborers of
the great enterprises almost always live together in their own kampong.
So do the Javanese who emigrated en masse to South Sumatra (Gedongtaan)
with government help. But even without government aid, Indonesians
move from one place to another in large groups, as witnessed by the
Minangkabauan colony on the West Coast of Atjeh, the Toba colony of
12 T h is covers the situation entirely in Atjeh, South Sumatra, South Celebes,

Minahasa and Ambon. Th e penetration of the Javanese into South Sumatra is
increasingly taking place in this manner.
fifteen thousand persons in South Tapanuli (Sajurmatinggi), the Buginese

in Bali and Lombok, the Banjarese in Indragiri. They settle down with their
own organization and their own chiefs. They occupy unowned land, or
gradually drive off the original native population. But they recognize the
authority of the people who were there first and on whose land they con
tinue to live as independent communities.13
However, in attempting to reconstruct any pictures of the growth
of all such ancient communities extreme caution is necessary. More knowl
edge is needed concerning the nature, the cultural past and the cultural
striving of the peoples who moved into the Indian Archipelago thousands
of years ago.
B. SPECIAL FORMS
In order to provide a foundation for treatment of the various types

of law that are to be discussed later on, and in order to make our general
izations, given above, more specific, the variations and special form of the
units of social organization in a number of law-areas will next be delineated.
At the same time, something of the differences and changes in form of
the communities within some law-areas will be shown. We shall proceed
from the type of community in which the kinship principle is strongest
to those in which the territorial base is the sole determinant.
1. Non-localized clans.—In giving first consideration to those
communities in which the kinship element is predominant, the Gayo
of northern Sumatra necessarily get first attention. In the Gayo community
the exogamous, patrilineal sub-clan is the autonomous social unit. The
people live in groups of families, which occasionally form separate villages
by themselves. More often, however, several extended families (kampong)
of different sub-clans jointly form a village. But the only political authority
is that of the sub-clan headman (reujeu) over his subordinates (saudeureu).
However, it is reported that among the Gayo-Lueus the headmin and his
sub-clan extend their influence even beyond the actual territory cleared
13 Th e Minangkabauans (Pengulu people) among the Batin population of

Ja m b i; the Toba and Karo colonists in the Dairi lands.
by the kinship group. Under the influence and authority of the neighboring
Atjeh, certain headmen were appointed as chiefs over regional areas. These
Atjeh-appointed chiefs are called “kejuron” . The “kejuron”, backed by
the authority of the Netherlands administration in Gayo-Lueus, and assist
ed by a council of headmen (Rejeu tjeq) drawn from the territory, really
obtained definite power. The Dutch also assigned districts inhabited by
non-kinsmen to certain headmen. In spite of the fact that his subjects
belonged to sub-clans different from his own, they came to recognize him
as the district chief and, apparently, after a time, as a true adat chief.14
Another Indonesian group organized along similar lines is that of the
Pubians in the Lampong area of southeastern Sumatra. There are three
Pubian clans15 which live intermingled throughout the Pubian territory.
They are divided into sub-clans (kabiuan) and these in turn are subdivided
into extended family groups (suku). Extended families from all three clans
live in one and the same village (tiuh). The village elders, or chiefs (panyim-
bang), are the headmen of the sub-clans, and each sub-clan is headed
by its chief (paksi). A sub-clan headman, however, exerts authority over
his kinsmen, whether they live in the village of the sub-clan or not.
This aboriginal organization has in recent years been overlaid by
a division of the entire Pubian territory into territorial districts. The
pattern is the result of Bantanese influence; but since 1928 it has been
given official recognition by Netherlands authority and developed into
regional communities. Under the native adaptation, the council of sub-clan
headmen had regional authority in certain matters. Now each regional
community (also called “marga” ) has a single “marga” chief.
Thus, today, the organization of the Pubian has been territorialized
from above by outside influences. But the native organization is still
discernible beneath it. The sub-clans still function as autonomous kinship
communities. However, the sub-clan headmen have lost their authority
14 T h e district headman is aided in his adat administration of secular matters

by an assistant called "peteu” , in religious affairs by an "im eun” . In Gayo-Lueus
he has all the sub-clan headmen of his districts under him, each with his own
“ imeun” and “ wakel” . Consultation with the people is regularly observed.
15 Called “ merga” , although elsewhere in South Sumatra, "m erga” means
regional community.
over sub-clan members living in other villages. With it has gone the
cohesion of the kinship group as an autonomous unit with members
distributed over a regional territory.
The social organization of the Alas reveals comparable similarities
to the Gayo and Pubian. Alas tribes (merga) and tribal units (suku) have
been transformed by alien authority into territorial communities, which
are still called “merga”, and within which the places of joint habitation
(kampong) are under the jurisdiction of a single chief, called “pengulu
suku” . The situation is similar on the island of Simeulue, where the
organization of society is remarkably like that of Pubian. Patrilineal
sub-clans live scattered throughout a territorial community or region,
which is governed jointly by the several sub-clan headmen under the
direction of one of them, who is called “datuq pamuntjaq” . The section
of a sub-clan which happens to live in a local “kampong” is under a family
group headman appointed by the “datuq”. The interests of the locality
are looked after by all the chiefs together.
In spite of all this, there are still occasional places in which the
territorial factor is extremely weak. This is true of the peoples of the
Lingga-Riau archipelago, who, distributed over a multitude of islands,
are organized for the most part in kinship groups under sub-clan head
men, but without the kinship groups occupying territory of their own.
2. Localized clans.—The complex of localized sub-clans seems to
occur in the interior of many of the smaller islands (e.g., Enggano, Burn,
Ceram and Flores) .16 Along the coasts, however, mixed villages have
grown up consisting of overseas aliens and emigrant family groups from
the interior. In moving toward the coast, kinship groups keep their
independence. Even though they live together with the family groups of
other clans in villages under a village chief (korano), they occupy their
own exclusive land. The village chief, however, has but little authority
over those who are not his fellow-clansmen.
3. Regional communities of mixed clans.—Mutually unrelated sub
clans, which make up a territorial community are reported, in the first
16 In the recently explored interior of West N ew Guinea, localized clans
have also been discovered.
place, among the Minangkabau. Matrilineal clan members not living in

the same “ nagari” do not form an autonomous community. The commu
nities are, firstly, the family group (sub-clan) inside the village. These
family groups are parts of the same portions of different clans. Those that
are of the same clan have become independent by fission; secondly, some
(not all) unions of such parts of family groups belonging to unrelated clans;
thirdly, the “ nagari” formed of sub-clans consisting of family groups,
organized or not into units. Minangkabau clans, like the Gayo and the
Pubian and many others, have their own names.
It is impossible to find a description of the Minangkabau which
does not begin with the warning, “ Do not generalize” . In consequence,
to an even greater degree than in other regions, only main outlines can
be presented. I f their social organization is to be formulated through a
reconstruction of its development from the basic units on up, it is neces
sary to begin with a given number of clans. At a given instant, women of
different clans (along with brothers and their brothers’ wives) settle on
either unowned land or desert land in the area of disposal of some terri
torial community. Gradually, the joint families grow in size, and so also
the settlement.
The process is as follows. Family groups spring up from the women
who are looked upon as the first mothers of the settlement. Subdivisions
of clans group themselves as indivisible autonomous communities around
the family property (lands, the residence, heirlooms, the family title of
the head of the family). The family group (sa buah paruiq) should be
imagined as originally located in a family house of its own, with the oldest
man of the senior generation as the joint family headman. When the family
gets to be too large, a new family house is built. Then part of the family
goes to live in it, but for the time being, it keeps its link to the original
group, so that the two together form a single community. In this way
the family spreads out over the community, or draws away and then
breaks through the boundaries of the community.
The headman of the entire family group continues to be the oldest
man of the oldest branch, unless he drops out because of incapacity. As
headman he plays his role in the village government, and is called “ pengulu
andiko” . When an over-large family divides, or newcomers within it form

a group that wants independence, the two parts each come under a
“ pengulu andiko” of their own.
Such a joint family may have a number of family branches (lineages),
which form more or less independent units focussed around the property
they have themselves acquired or inherited jointly from a single testatrix
or testator, or focussed around the units of family property, which they
have in use. (See p. 215.)
Such family branches are frequently under their own elders (mamaq
kepala waris, or tungganai). The joint family headman is also the elder
for his own family branch. In situations where the family branches have
no elders of their own, the joint family headman acts as such for each unit.
Today, when Minangkabauans come into a community from the
outside, they generally form a separate matrilineal community, although
in former times they would have to have been absorbed into an already
existing family. The length of time a family has been established in a
community influences its social prestige: the older, the more distinguished.
Non-Minangkabauan aliens (commonly Niassans) are subordinated to
a position of dependence. Each so-called slave family (kamenakan dibawah
lutuiq) is attached to a Minangkabau family group.
During this expansion of the kinship groups, the hamlet goes through
a continuous developments from “ trataq” to “ dusun” , from “ dusun”
to “kota” , when permanent houses are raised} and from „kota” to “ nagari
upon the erection of a new and separate council house (balai), bathing
place (tapian), cock-fighting space (galenggang), and temple. These are
evidence that the human group has become firmly rooted; that men
and the soil have coalesced into a true and independent entity. When
these institutions are present, and if at least four kin groups, not belonging
to the same clan, are living together in the same village, 17 the village
attains recognition as an independent “ nagari” . It is now a separate entity
and assumes the general authority of the “ nagari” in the realm of adat law.
The organization and administration within the “ nagari” next sub-
17 However, the kin groups (suku) may sometimes keep their separate land
holdings exclusive.
divides into two types, between which there are a great number of inter
mediate forms. In accordance with the Bodi-Chaniago adat system, which
is especially dominant in Agam, the family headmen in a “ nagari” rule
jointly on an equal basis. The council of headmen (kerapatan nagari) is
the highest authority. In this system the independent sub-clans, which
belong, however, to a single clan, are called “ suku” . Fission of a family
group is fairly common.
In contrast to this arrangement, in Tanah Datar and Limapuluh
Kota, where the Kota-Piliang adat law system prevails, sub-clans 18 are
combined into unions made up of four, five, six or nine totally unrelated
sub-clans from as many different clans. Among these people these unions
are called “ suku” , but they sometimes carry in addition the name of the
clan to which the “ suku” chief (pengulu suku) belongs. In most com
munities the majority of the clans are represented, but they are no longer
always linked up in the four, five, six or nine combinations. The family
headmen (pengulu andiko) ruled the “ suku” under the direction of a
“ suku” chief. Four “ suku” chiefs under the direction of a village chief
(puchuaaj nagari) together with the family headmen rule the community.
“ Suku” chiefs are assisted in administration by subordinates called
“ manti” . In religious affairs a “ malim” helps him, and policing is done
by an aide, known as “ dubalang” . All these functionaries, together with
the family headmen and “ suku” chiefs make up the “ urang ampeq jinih.”
Social organization in Korinchi is somewhat similar to the Minang-
kabau organization of territorial communities consisting of independent
kinship groups. Matrilineal kinship groups (lurah, kelebu, perut), mutually
related or not, form the village, or “ dusun” , above which stands the
regional community, called the “ mendapo” . The same pattern holds for
the Batin people in Jambi.
In addition, the regional communities, or village unions, on the island
of Nias are to be included within this type. In Nias sections of different
clans are under the authority of the so-called “ euri” , which has the qualities
of a confederacy, or of a regional community administration. Villages
are made up of patrilineal sub-clans under lineage headmen, one of whom
18 Called “ kampuang” among these peoples.
is the village chief. Still further, on the Hutu peninsula of Ambon, the
“ negory” is made up of patrilineally organized autonomous communities,
while on the Kei Islands, patrilineal sub-clans form the villages. The
villages belong partly to the original natives and partly to Indonesian
immigrants, who have been able to make themselves masters of the village
administration. But the village chief has little authority compared to the
headmen of family groups.
4. Patrilocal clans. — The independent communities of the Batak
are typical of the fourth type of social organization, that of the localized,
exogamous, patrilocal clan or sub-clan inhabiting its own territory. Batak
communities are organized in a series consisting of the family-group village,
the sub-clan regional community, and the clan territory. However, there
are almost always some residents in the community who belong to other
clans. But these clan-aliens never enjoy full rights, and the community
chief can never come from among them. They cannot hold full native
proprietary rights in their agricultural or house lands. And yet, they do
enjoy such possessive rights as to entitle them to be counted as members
of the community: the “isi ni huta,” as the Bataks call it. They frequently
have representation in local government through the ranking personage
among their relatives. They can generally maintain separate villages of their
own within the regional community of the dominating sub-clan, and as a
result of a long-continued relationship, they hold a firmly established
position in the scheme of things.1-9
Running through the Batak pattern cf relationship of the ruling local
clan to non-clan members, living in the local community, is the special
relation of the clans supplying women to the clans which receive them.
Each clan has a fixed relation to another clan, wihch results in the principle
that all the girls of a clan are married out to the men of another. The woman-
supplying clan is called the “hula hula” among the Toba, “mora”, in the
south. The woman-receiving clan is dubbed the “ boru” or “ beru \ It is
111 Batak clans or sub-clans are called "m arga” , and (except in the south)
the territorially localized sub-clan is called “ marga tanak’ . In northern Batak, the
members of such a "marga tanak” are called "parripe” (in Dutch, "heersende”
or “ regerende marga” ) as against the members of other clans. In south Batak
the "parripe” are simply the common people, in contrast to the class of chiefs.
important to note, however, that the relation is not mutual. This produces
the complex known as “ asymmetrical marriage” .
Thus the second clan must have another partner as its “ boru” , for
which it, in turn, plays the role of “ hula hula” . The whole thing may be
conceived as a closed ring of three or more clans. N ot infrequently, a
woman-receiving clan (boru) exists side by side in the same village as its
“ hula hula” , or woman-giving clan, and this latter may also be the ruling
clan (marga tanah).20 In view of the fact that the “ hula hula” enjoys a
certain dominance over its woman-receiving counterpart, this latter may
be doubly subordinate, both as a woman-receiving “ boru” and as an
inferior residential group. Sometimes, however, as in the region of Padang-
lawas, the clan which gives women to the ruling clan may live in the same
village as the ruling clan. Then the marriage relation ascendency which
the “ hula hula” has in the marriage relations is in opposition to the
political superiority of the ruling clan. 21
In all Batak communities, government is primarily in the hands of
a representative of the ruling clan, who is sometimes aided by another
member of his family. In addition, there are usually representatives of
the woman-receiving clan, and in the south of the territory representatives
of the subordinate clans in the community are also included.
Thus in the south Batak lands, a territorial community— called
“ kuria” in these parts—is ruled by the rajah and his factotum, who is
a member of the rajah’s family and his possible successor (the bayo bayo
na godang), along with the elders (kahanggi ni raja) of the rajah’s woman-
receiving clan, and the headmen (natoras) of the other sub-clans in the
territory.
Government by co-chiefs of the various clans also occurs in the Toba
plateau, on the Samosir peninsula, and in Barus.
Assymetrical marriage and a social organization similar to that of
the Batak are also found in the Great East.
5. The localized tribe.—Differing from any form of social organ- .
20 In the south it is a rule that an independent village contains a clan which
is woman-receiving of the rajah’s clan.
21 In actuality the patterns are usually terrifically complicated by all sorts of
variations and exceptions, but the theoretical structure is generally recognized.
ization thus far discussed is the bilateral kinship group (the tribe, or
sub-divisions of a tribe) which inhabits its own territory.
This type of community is especially outstanding in Borneo, where,
for examples the Punan Dyak, a nomadic tribe, moves about a tribal area
in small groups. Only when they settle down, as the Penyabung did
in 1905 on the Upper Barito River, does the entire tribe become a fixed
entity. The best known of the settled tribes, residing in their own territory,
are the Kenya Dyaks of the Apo Kayan district, the Maanyan Siung,
and the Lawangan Beloh. Among these people, sub-tribes live together
and are of some significance, but the governing community, which controls
all important legal relations and acts, is the tribe. Tribal chiefs have
control of affairs, but they must confer at all times with their free fellow
tribesmen. Nevertheless, a chief with a vigorous personality can obtain
considerable influence.
Among the Lawangan Dyaks and the Klemantan tribe in Kota
Waringin, the individual village, made up of a sub-tribe with its sur
rounding territory, is for the most part the sovereign community. But
tribal unity still survives and may be seen in land relations and in problems
of administration. A later stage, in which the tribe is devoid of all signif
icance and in which the sub-tribe has become the governing unit, occurs
among the Ngaju, Ot Danum} Maanyan Patai of South Borneo, and others.
In the interior of these regions the sub-tribe predominates. However,
the closer we come to the coast, the more is this displaced by the sovereign
village. In the interior, the people who belong to the original relationship
groups that settled a territory are still a privileged class with respect to
the land. Yet on the coast this, too, disappears and all the population of a
“ territorial’* village constitutes the autonomous village. In a few Borneo
instances, invading tribes have continued to live interspersed, without
political assimilation, on the lands of the people they have encountered.
The original tribes are kept in a subordinate position, but are not made
slaves. This is the case among the Long Glatt, the Lepo Timei and Lepo
Alim in Apo Kayan.
The same set-up is found in Central Celebes. The To Mori of Central
Eastern Celebes have continued to live in bilateral kinship communities,
each on its own territory. On the other hand, the Baree-speaking Toraja
originally lived as localized tribes, which subsequently fell apart into
villages of tribe members. Nevertheless, powerful chiefs do still wield
authority over related communities outside of their own villages, and
sometimes a fishing-place seems to belong to a “ tribe” .
Among the Sadan Toraja, the regional communities (buah or pena-
nian) are under a chief (indo buah or parenge). Although the highest class
(tomaka), which descends from the founder of the community, apparently
is predominant, strangers are received into the community with equal
legal rights, so that the community is not, apparently, exclusively a com
munity of tribal members.
In the villages and regional communities which shall next be dis
cussed, the kinship tie drops into the background and disappears. It has
already been developed that a territorially-based community can have
originated in a kinship-based community—a sub-tribe, living in its own
territory, into which aliens have been able to obtain just as many rights
as the descendants of the original kin group. As a result, the mere fact
of residence may lead to partnership in the community. It is likewise
possible that communities, in which different kinship groups are living
intermingled among each other, can pass over into purely territorially-
based villages or regions through relaxation of the kinship bonds. This
trend is also manifest where kin groups that have separated from their
parent communities come together from different tribes and give up their
closed organization. This is the case in some of the “ marga” of South
Sumatra and the coast villages of the Moluccas.
6. Territorially-based tribes.—Minahasa provides the best example
of a tribal area organized on a geographical basis. The original tribal
area existed for a long time as a territory under a district chief, and
in this district only tribal members resided. This has since broken down,
but even today hunters and gatherers respect the old territorial bounds.
Within the “ district” the original parent village is still recognized. New
communities are founded by a number of family groups, and after four
years, their boundaries are ceremoniously assigned and fixed. The situation
is parallel to Minangkabau practice, in that all villages can be traced back
to one original village, which is the source of the entire population. In

Minahasa, the family group is organized patrilineally under a lineage
headman (tua un teranak). The lineages live together as a group of partners
in an undivided estate. Through the parceling out of the land, the kinship
bond has been lost as a factor in the composition of the autonomous
community and the “ negori” must be recognized as a geographically
based community with its own sphere of authority.
7. Territorialized kinship-based communities.—Next, the regional
communities of South Sumatra, called “marga” , are to be considered,
on the one hand, as territories inhabited by clan members, but territories
in which clan membership no longer endows any special privileges. On
the other hand, they are to be considered as territorial units established
by higher authority and developed into the regional community. Inside
the regional community there are still the “dusun”, villages with a
measure of independence.
Down until the middle of the nineteenth century all types of
organization were present in South Sumatra, as they are today in Borneo.
There are the Kubu, roving about their own nomadic area in small groups.
Then there are the Anak Lakitan, moving around from one “ladang”
complex to another. Next there are the Rejang, with localized, sedentary
clans. Then there are Jelma Daya of Krce, whose clans are broken up into
sub-clans localized on their own land. The Abung and Paminggir of
Semangka are of this type. In addition, in Ranau, Benkulen and elsewhere,
sub-clans of different clans intermingled in a river valley or some other
region belonging to a different clan, sometimes with supremacy in the
hands of the first-established people.
In a wide area around the capital city of Palembang, in the appenage
region of the sultans (the kapungutan), there occurs a parcelling out of
family group “ dusun” under lords, the establishment of administrative
boundaries and placement of officials of the sultan at the head. At first,
these “ dusun” were still autonomous communities, but they are no longer
even that. On the coast between Palembang and the Lapong Banten,
however, where external organized authority failed to reach (Tulung
Bawang), a great confusion of intermingled kinship-based communities
held sway. T he coast dwellers of Benkulen, and the Paminggir around

the bay of Lampong, form regional communities mixed with many alien
elements.
In spite of this previous range of variability, the present Sumatran
community is a territorially-based regional community, in which any
settler can become a member of the “marga” . Yet, the deeper you go into
the primitive sections of the mountain country, the greater is the likelihood
of finding a surviving kinship influence in the organization of the com
munity.
8. Kinship-based communities transformed by alien power. — On the
islands of Ambon and the Uliasers the village, or “ negory”, is the political
community. Except on the coast of Hitu, where sub-clans or lineages
(locally known as rumatau) exercise self-government as separate com
munities, the only social units within the community are the families.
In the “ negory ” 5 various family-groups (sometimes wholly unrelated to
each other) came to live together under one administration, which rested
to some degree on alien rule. This set-up has replaced the earlier organ
ization of localized patrilineal clans (aman or hena), which were united
into political units called “ uli” . The “ negory” pattern was driven through
to the coast by alien power in the historical period. Today, in the Christian
villages, land-owning characteristics of the clan have disappeared, except
for the surviving nuclear families, or lineages, which maintain possession
of groves of trees. These have in some instances been converted into
arbitrarily formed land-owning units by reason of European or “ negory”
authority.
9. The gaukang.—In South Celebes there is an interesting insti
tution known as the “gaukang” (also as kalompoan and arajang). This
is the representation and symbolization of the vital spirit or soul of a
regional community in a particular object of supernatural qualities. 22
The original fetish could be a stone, a gnarled branch, a flag, lance, plow
or some other object. Later on, other elaborate accessories were sometimes
n [The Dutch call this social complex “ het omamentschap” . T h is would

have to be translated “ ornamentship” . In English, a more effective equivalent
would be “ community fetishism” .]
added to the original one, and in some instances these secondary

fetishes became substituted in the place o f the original.
I n breaking off from a parent^ new communities became independent
in their own right, even though they had no fetishes of their own. They
did, however, remain second-rate in general status. Even in the M andar
states, where patrilineal sub-clans are described as being groups o f im
portance, the communities are territorial, as elsewhere. T he governor is
the guardian o f the fetish. There is great variety in the names and functions
of the assistants and sub-chiefs. Originally each fetishistic community
had its own council (hadat), and although war and the principalities,
alliances and Dutch administration have had a great deal of influence
on South Celebes social organization, underneath it all the regional com
m unity is the cell and primal form of social structure.
10. The Balinese desa.—The “ desa” , as the villages o f Bali are
called, is a community based purely on geographical contiguity. I t is
true that a kinship relation does bind the little-knwon religious societies
o f Bali together, but the members of these cults are scattered throughout
a num ber of villages, and their function is limited to the joint worship
of a deified progenitor and the maintenance of a temple for him. The
re ck o n in g of the relationship is patrilineal, except for some “old style
desa.23
The “ desa” is a community which depends in the first place upon
a common duty and will to keep the village grounds clean for the gods,
and to carry on the sacrifices and other religious cerem onies called for
by custom. There is considerable variation between the “old style and
“ new style” desa. In the old-style desa a special group of married citizens
is obliged and privileged to carry out the functions of worship. The mem
bership of such groups numbers twenty or multiples of twenty. The
members are holders of certain particular agricultural lands. At least,
they must be landed proprietors and married. Succession to the group is
based on a variety of p rinciples. The oldest villagers have special adminis
trative functions and a place to fulfil in the worship of the gods. Even
23 [The distinction between “ old” and “ new” style desa is described by van
Vollenhoven, Adatrecht, vol. I, PP • 4^4^]-
the peacemakers in village disputes are in essence religious administrators,

for they protect the village territory from defilement brought on by
quarrels.
The social strata make up the Balinese village. The nuclear group of
first-settlers holds the first rank. A larger group of subordinate middle-class
people shares, to some extent, in the land and has limited responsibilities.
Lodgers and immigrants form the third class, known as “ sampingan” .
In the villages situated outside of the former principalities, there
are various societies, which are subordinate to the village authority. Such
are the “ banjar”, the district society, the young men’s and young women’s
societies, the music and drama society, and so forth. In the appanage
territory these freely-formed societies exist as autonomous communities
outside of village authority.
Citizenship in the new-style villages is less complex. Every adult,
married male, who has a residential compound and has lived in the village
for a year, is admitted to the village society. He is, in fact, obliged to join
up. Administration by a village headman (kilan), sometimes assisted by
seme henchmen, replaces the gerontocracy of the old-style system.
Alongside of the two basic types of Balinese communities are the
important irrigation associations (subak), a union of sawah24 owners under
a headman, but organized in various ways, and variously aligned with
the villages.
In Lombok, the desa is a territorially-based community made up of
unrelated families. It possesses an area of disposal and is governed by a
“kepala desa” .
11. The Javanese desa.—The Javanese desa is another type of
community, whose base is purely territorial. Its constituency is formed
of unrelated individuals and families. And in addition to the nuclear desa
citizenry, there are alien, non-native residents, mainly the “ priaji” .
Although such persons fall outside the desa class, they do belong to the
general community.
The desa members are grouped into several sub-divisions : (1) the
24 [Cultivated fields held under a community right of disposal. See the next
chapter].
nuclear villagers (called pribumi, sikep, kuli, baku, gogol), who own
agricultural lands and household compounds, and upon whom fall the
full burden of citizenship ; (2) those persons (lindung, indung, and others)
who own either a household compound or agricultural lands and who
bear some community responsibilities; (3) those persons (nusup, tlosor)
who own a house situated in another person’s household compound, and
persons who provide for their own food, or who work for the masters
with whom they live. House-members (rajat), i.e., members of the family
group, do not form a separate class.
In Bantam, the desa consists of a number of quite small hamlets
(ampian or kampong), each with its own chiefs (kokolot or tua tua), who
function as intermediaries between the people of the hamlets and the
desa chief, or “ jaro” , who is aided by a pair of messengers.
A similar arrangement exists in the Preanger area, except that the
hamlets (kampung, lembur) which make up the desa are widely scattered.
The desa headman (lurah), who is assisted by two policemen (ulu ulu),
is superior to headmen of the hamlets.
In central and east Java, the actual desa is one central settlement
(keajan), frequently possessing a group of inferior hamlets (padukuan).
The village chief (kuwu, bekel, lurah, patinggi), who is aided by a number
of assistants, has rather autocratic powers.
On Adadura, the population lives in scattered farm settlements made
up of from four to ten families, more or less related and living together
in their own compound surrounded by their fields. A number of such groups
(kampong meji), when linked together, form a kampong under a headman
(apel). The kampong, in turn, belongs to a larger complex, which forms
a desa under a desa headman, called “kalebun . In spite of its loose
structure, the Maduran desa is nevertheless regarded as the community
by its members.
Throughout this entire area, there are clerks (charik, jurutulis) along
side the village chiefs, and in every village there is a religious factotum
in charge of worship. Nowadays, the nuclear villagers get together every
month, or every thirty-five days, to deal with important desa affairs. Such
meetings are really infrequent in Bantam and Madura, while in other
places their occurrence may be modified by the wishes of the adminis

trators.
In earlier times, the desa elders were the most important functionaries
throughout the entire domain of the life of the community, but today
they seem to have atrophied in most regions.
There are a number of “free” desa (perdikan, pekunchen, mijen,
pesantren), which received special immunities and privileges from the
native princes in the past and whose special character has been recognized
by the Dutch Government.
Communities of Christians are not desa in the native sense, but
simply communities of Christians belonging to a desa and possessing their
own property (church and funds) and autonomy.
12. The territorially-based community in Atjeh.—T he autonomous
communities of Atjeh are also exclusively territorial. This is true for the
large regional communities, as well as the villages. Patrilineal clans (kawon)
still have some measure of importance in the highlands, but they do not
enter into the structural organization of the territorial community.
Atjeh is broken up into a hundred or more regional communities for
which there is no native term, and which today exist as territories or sub
divisions of territories under autocratic, hereditary governors (ulee-
balang or chiq), and in the directly governed territory, native communes.
At the head of each village is a village chief (keuchiq or peutua), a m an for
merly appointed by the regional chief, but now the holder of an hereditary
office. He is the father of the village” . Beside him stands the male “ m other
of the village” , the spiritual ruler who attends to religious and Islamic
affairs. Assisted by a council of elders (ureueng tuha), these two rule the
village.
13. Additional territorially-based communities.—The last group of
peoples to be listed as having purely territorial communities are those on the
islands of Bangka and Billiton, and in the .Malayan territory of Borneo and
the East Coast of Sumatra, in addition to which are the “ subdistricts” of
Gorontalo, and the villages of Bolaang Mongondow.
The natives of the Banggai Archipelago live scattered over their islands
without any form of political union. Such chiefs as do exist appear to be
foreign intrusions established by the native princes. The Ngada people,

who live on the island of Flores, are also without community organization.
The small family groups ,which make up the population, live entirely inde
pendent of each other, without any higher community organization.
The various types of community, which we have now outlined,
dominate the daily legal lives of many millions of Indonesians through
the native law administered by native headmen : “pengulu yang me-
megang adat” . The adat responsibility of the headmen to give each
thing its place, “meletakan suatu pada tempatnya” (to order the rela
tionships of things and people) will recur again in our discussions. For
it extends over the entire fields of the law—in the form of preventive
legal action, as well as in the settling of actual disputes.
As significant as is the legal development in the small autonomous
communities, these communities are not the whole of the Indonesian
world. Alongside the adat law of the autonomous communities is adat law
of another origin: the legal sphere of people who are alien to the community.
C. THE ROLE OF THE PRINCES
Notwithstanding the intimate interrelation between the domain of

princes and the folk autonomy of the small independent communities, the
two may be set over against each other.
It does not matter whether a prince has sprung from a leading tribal
unit belonging to his own region, whether he is an alien Indonesian, or
even of foreign origin from outside of Indonesia; throughout the whole
area the princedom exhibits similar characteristics. The person of the prince
himself, together with the state paraphernalia and ornaments (upachara),
is the concentration point of the magical potency of the princely state. In
fact, it is just as fair to say that the sacred objects of the state possess him,
as it is to say that he possesses them. He is wholly identified with his state.
Everything in the state is his. His power is theoretically unlimited, and
he is honored and deified in the Byzantine manner. But, since the welfare
of his state is his welfare (and vice versa) and his actual power is limited
in practice, he does in fact keep his relations with the communes undisturb
ed and unbroken.
He is surrounded by a group of noble relatives and high state officials,

whose rank is minutely differentiated in a complete hierarchy from high to
low. Hierarchal status is of great importance for marriage; and an academic
degree or other evidences of success in life give access to the royal circles
even to those who are not members by birth.
External marks of dignity are carefully observed. In Java, for instance,
it is a terrible faux pas to pour tea for a noble from a tea service that might
be used for commoners, although among the moderns such nicety is dis
appearing.
In Bali, the noble caste, which constitutes eight percent of the popu
lation, must be regarded as a social group living entirely outside the desa
organization. But in such places as South Celebes, where the royal organ
ization has developed out of the folk community and where royalty con
tinues to intermarry within the families of community chiefs, the difference
between royalty and non-royalty is more a difference of degree than of kind.
Appended to the princely hierarchy throughout Indonesia are the
administrative officials, who transmit the royal edicts and collect and
transmit taxes. The higher ranking officials are found in the capital, the
lower in the country. Country officials tend sooner or later to take on the
characteristic of peoples’ chiefs, losing their exclusively royal indentity in
the process. The prince compensates his officials by granting the royal
income from a definite region to each of them.
The royal circle has its own body of custom and law: itsown court
language, its unique cultivation of literature, drama, dance and music, its
specialized arts of metal-working, wood and leather carving, and its separate
life at the capital. The social organization of this royal body has been too
little investigated and is but slightly known.
There is structural organization and hierarchy in which the superiors
are concerned in the legal life of subordinate officials. They enter into
matters of death, marriage, land transactions, money loans, etc. In part,
right to land in the capital city are official rights to residential compounds.
But these rights tend to develop in the direction of native ownership.25
Other land rights are temporary rights of aliens, as the kampong of foreign
25 [I.e., individual possession under group ownership.]
traders. Residents gradually acquire independent negotiable rights to

parcels of residential compounds, in the same way as in the interior of Java,
parcels of the large princely residential compounds have occasionally been
given away and have come in native ownership into the hands of others.
The prince is the supreme judge. He hands down legal decisions
through his law courts. These decisions are part of his princely power.
When they arise from controversies between his subjects, which could not
be settled in the small communities, they merge with adat rights and in
fluence the adat law of the communities. He gives a “law book” (undang
undang in Malay, nawala in Javanese) of native or foreign origin to his
courts for guidance. A later legislative development, mostly under Western
influence, is the redaction of a portion of written adat law (pranata in Java,
peswara in Bali); but it seems to develop only in the villages of Ambon
and Bali. The Javanese village ordinances are merely administrative forms.
The prince is the religious head, as well. He allows the chief religious
officials, the head of the mosque in the capital city, to regulate religious
affairs and to administer justice in some matters. Inferior judges operate
under the central temporal and religious judiciary elsewhere within the
principality. These judicial administrators are of more importance for
the city dwellers and officials than for the citizens of the outlying com
munities.
In spite of its separateness, however, the royal sphere is nevertheless
linked to the peoples’ world. The prince is descended from the mythical
culture hero of the people. The magical import of the state ornaments is
believed by all the people, high and low. The feasts and festivals with
their free distribution of food strengthen the unity of prince and people
in a manner that is essential and effective for both parties. Inter-communal
squabbles and disputes, which threaten to lead to war between villages,
are appealed to the prince, whose decision is accepted. In order to
fulfil this function, the prince is repeatedly called into the country as
arbiter. In contrast to this, however, the princely administration is quite
definitely shut out of intro-village affairs, probably to prevent a royal
displacement of local autonomy- Yet any little nvan can individually break
through ail bounds, and clad in white, can evoke the highest justice from
the prince himself. Also, a group of people can appear before the prince
to lodge a mass complaint against injustice. A further strengthening of the
bonds through kinship between princely nobility and the people is effected
by the noble practice of taking concubines from among the commoners.
Moreover, the prince permits the communities to direct their own
legal life. The most important point of official contact is in the levy in
money, kind, and services. Royal levies are frequently merged in the adat
law obligations of a citizenry in the rendering of mutual aid to their local
chiefs (see page 145) and carried out in the name of these local obligations.
In the taking of levies, the chiefs are the intermediary between prince and
people. Forced labor is a common practice, as is the occurrence of regal
demands, which have no roots in the folk-ways. Particularly, when the
officials were paid with the levies they collected, they repeatedly disorgan
ized or destroyed the independent communities by pushing themselves
into the positions of the local chiefs.
The princes and royal coterie of Java, the princes and their scions
in Atjeh, the Atjehnese over-lords in Padarg, Javanese and native nobility
in Palembang and Jambi, in the Malayan territories of Sumatra and Borneo,
in Celebes, Tem ate, Tidore, the Timor group., Bima and Sumbawa, Bali
and Lombok all came to form the first group of Indonesians living outside
of the community system.
D. THE STATUS OF MERCHANTS AND TRADERS
Traders, the so-called “ orang dagang” , are the typical strangers in

the Indonesian community. They are also outside of the princely sphere.
They form districts of their own in the capital, cities, districts of basic im
portance in the economy of the state. These strangers set themselves over
against the folk sphere by acquiring the protection of the prince or some
lesser lords. Among the western Toraja, for example, a traveling alien
assures himself of the protection of a grandee by the offering of a gift.
Sometimes, these alien traders band together in the peoples’ com
munity by setting up their own areas of common residence, as the inde
pendent “pasars” of South Sumatra and southern Tapanuli. On the island
of Simeulue, these aliens even form villages of their own, the “ suku dagang” .
In the sea ports and centers of government administration, they indi

vidually intermingle with other aliens as strangers to the native community.
The unwritten law which controls legal relations of these strangers to
each other and to the native communities, is related to the adat law of the
autonomous villages on the one h and; but on the other, it also is greatly
influenced by the law-making decisions of the professional and, occasionally,
the religious judges. Lawyers and notaries also influence it to some degree
—at least insofar as these functionaries understand the constructive side
of their task. Between the merchants and the legal institutions of the Gov
ernment or the Prince, as the case may be, there is no such protective wall
as is drawn around the legal life of the folk communities.
E. THE INFLUENCE OF PRINCES AND THE DUTCH

ADMINISTRATION ON COMMUNAL LIFE
There is a certain inevitable tension between the legal life of the

native communities and the administrative organization of the princes
and the government. Where they have not been crushed to death, the
communities remain independent as spheres of legal autonomy. But the
fact that they, the princes and the government are concerned with the
same legal objects results in tension.
The destructive influences of the central princely state emenate.
most directly from the residence of the prince and act most intensely upon
the communities in the immediate environs of the royal city. These
influences may be summarized as : (1) replacement of local headmen by
royal officials; (2) the absorption of land into the royal holdings, (3) the
granting of appenages.26 Such influences were at work in the sultanate
of Atjeh, of Palembang, the sultanate of Jambi, the sultanates of East
Coast Sumatra, the powerful principalities in South Celebes (Bone,
Gowa, etc.), of Ternate and Tidore, Bali and Lombok, and among the
Nagara-gung in Java. However, the local community was not always
wholly destroyed by these influences. The Balinese desa kept its autonomy
26 T h e bestowal of the right to officials or certain families to appropriate
levies owing to the princes from some families or segments o f communities with
out regard to established boundaries.
in the midst of appenage territory. And yet—such villages were never

the same as those outside the princely area, for, as the Balinese say, “ the
prince penetrated within the desa” . More recently, with the reorgan
ization of the princely domain under Dutch authority, some of the folk
communities have been restored.
However, a second effect of the power of alien princes has been to
crystallize and strengthen the internal organization of the outlying com
munities. The authority of the ccmmunity headmen has been increased
in consequence. This is the case with the communities of Bantam as
against the “marga” and “ bandana” of the Lampongs; of Palembang as
against the “ sikep marga” ; possibly of Ternate as against the “ negory”
of Ambon and the localized clans on their own lands in the Sula Islands ;
Karangasem and the other small states of Bali as against the desas lying
outside of the appenage territories; and Java as contrasted to the desa
of the vassal states. In order to meet the levies and royal demands for
services upon communities, the communities had to become stronger
internally and communal demands upon individuals left but a narrow
field of life free and untouched. The interest of the community had to
ccme first, especially in relation to the land.
The authority of the princes to act as judges in inter-ccmm unal
disputes and the effect of the written judgments (piagem) handed down
by the princes seems to have an additional solidifying effect upon the
communities themselves. Thus, within the communities, another interest
than that of the community itself is operative. The interest and will of
the prince have become elements from which the community has to defend
itself, or in the very least, to reckon with.
The Netherlands Government exerts an in flu e n ce on the structure
of native social organization, which is to a degree parallel to that of the
princes. Where large cities haye arisen, the effect has been wholly des
tructive of native selfrule. In Batavia, Surabaya and a few other towns
there is no longer a trace of the independent native ccmmunity. In one
case, in the Lampongs, the ccmmunity was unappreciated and was
abolished. Nevertheless, vestiges survived and the communities were
again restored under their own law in 1928.
And yet, when the Government looked upon the communities as

useful units for services and levies, the effect was to strengthen the native
units. Probably the oldest example of this was the demand by the East
India Company for services on the “hongi” journey,27 using the old
obligation of the Ambon natives to render the so-called “kwarto” service
to their chiefs.
Government influence was oft-times definitely formative in un
organized areas. Here villages coalesced and flourished as a form of native
life with great frequency.
The practice of the Government to restrain headmen who overstep
their communal authority is of signal importance. The old means of
defense against the chief’s abuse of power was to change residence or to
run amok. These means are becoming increasingly difficult to use, so that
it becomes steadily more necessary for the judge or administrator above
the community to protect the individual from the arrogance of chiefs.
But it is obvious that such interference, when it goes too far, is definitely
a disorganizing factor.
The goal of Government administration, active care for the general
welfare, has caused it to penetrate the native villages to a far greater degree
than has been true of the native principalities, and has resulted in greater
changes in community life. But it is easy to be deceived by surface
appearances. After all, under the veneer of new forms, the actual socio-legal
life of village justice, old-time land administration, reciprocity and mutual
aid can, and do, go on in conformity to the old native law-ways without
undo molestation. The New Native Community Ordinance for the Outer
Territories28 openly provides for this.
Even the consolidation and breaking up of communities, which is
frequently done in an abominable manner by the Gavernment, is mostly
external to native life. This is even the case with the imposition of chiefs
and administrative devices put through under the guise of village regula-
- 7 [Hongi journey: the “ forced labor” transport of goods from the interior
to the coastal ports].
28 Staatsblad, 1938 , No. 490.
tions. But it must be admitted that such interference does influence the
lives of the people, and sometimes very deeply.
More studies on the interplay between the structure and vitality
of the communities and outside influences, together with their resultant
consequences, are called for. Friedericy29 on Ponre, and Korn30 on
Tnganan Pagringsingan are good examples of what can be done. In such
studies the description of social institutions and the way they really
operate need to be kept clearly separate from the development of legal
forms and positive law expressed in judgments and regulations. These
same formalized law principles must always be checked for functional
reality and value. Neither of these two aspects may be neglected. For
the judge must be aware of the importance of both—of the description
of the going social concern recorded by the functional method and the
adat law expression of the operative law. (See page 251.)
20 H . J. Friedericy, *‘Ponre, bijdrage tot de kennis van adat enadatrecht van
Zuid-Celebes” (Ponre, study towards the understanding of adat and adat law of
South Celebes), Bijdragen Koninklijk Itistituut, vol. 89, 18 32.
30 V . E . K om , D e dorpsrepublik Tnaganan Pagringsingan (T h e Village R e
public of Tnaganan Pagringsingan), Santpoort, 19 33.
CHAPTER II
L A N D R IG H T S
A. LAND RIGHTS AND THE COMMUNITY
O O I L AND TH E communal group are closely bound each to the other.

^ F r o m the soil the group draws its nourishment. The soil receives
its dead. It houses the ghosts of the departed ancestors and the protective
spirits of the group. It is permeated by the spiritual, communal bond on
which its life depends. This spiritual complex is rooted in a communal
ideology which has its legal aspects as well as its socio-religious phases.
The group as a group has rights in the land. These rights may be
exercized toward out-groupers and individual members of the in-group.
With respect to out-groupers, the group draws exclusive benefits from
the land. But at the same time it is held to be responsible for injuries
suffered on its communal land by any outsiders in the event that the
perpetrator of the injury is unknown. The group controls the use of land
among its own members, and it regulates the rights and claims of each
in such a way as to obtain for all their share of the common benefits to
be derived from it.
Earlier writers have covered the complex of community rights in the
land under such terms as “property rights” or the “ communal right of
ownership” . But an inextricable tangle resulted from the use of such terms,
until in 1909, faced with this fact, van Vollenhoven introduced the term
“ beschikkingsrecht” (right of disposal) as the technical term which has
since gained acceptance. Yet, even this term is etymologically misleading,
because no actual right of alienation is vested in the community. In order
to deal with this objection, yan Vollenhoven carefully described the six
characteristic features of the right of disposal, at the same time making
clear that the absence of any power to alienate the land is one of these
features.1
1 Van Vollenhoven, Miskenningen van het adatrecht (Misconceptions o f adat
law), 1909, pp. i9ff.
89
1. Intra-communal relations.—T he collective community exercises

its right of disposal by taking profit from the land and such wild plant
and animal life as are found on it. It limits the movement of its members
on its lard. T he community right of disposal is never static. It grows and
shrinks in relation to the rights of individual members. Changes in social
values concerning individual rights affect the strength of communal rights.
And outside influences shape the operation of the communal rights in
all sorts of ways, to be discussed later.
The general features of the right of disposal in the community are
almost universal throughout the islands. Only the Banggai Islanders and
the Ngada of Flores seem to offer exceptions.
What then is the basic formulation of the fundamental Indonesian
communal right of disposal ?
The first feature lies in the interaction of communal and individual
rights, mentioned above. When a person puts his individual effort into
a piece of land, he creates something of a personal identity of self and
soil. To the degree that he intensifies this, it becomes a legal relation,
and the powers of the collective community with respect to that particular
cultivated field, fish pool, garden, or house compound are reduced. If
he neglects his holding o t permits its usufruct to lapse through inactivity,
then the powers of the community are reestablished, and the community
right of disposal is once more freely asserted.
Thus, upon the departure of an individual holder, re-captured fields
in South Tapanuli are allotted with usufruct to newcom-rs or to the poor.
In some law-areas, the titles of individual members to their abandoned
sawah (cultivated fields) are maintained for a long time against the claim
of the community. In Minahasa, the title to a piece of land cleared by
individual effort exists in principle in perpetuity. As a result, there is no
power of recapture in the community right of disposal. In fact, however,
the community in this law-area does exercise the power to bestow
temporary usufruct of land on its members even when the title is held
by someone else. This also takes place among the Bataks with respect
to the sawah of members of the ruling “marga” .
In some law-areas the social and spiritual interest of the community
LAND RIGHTS 91
in the land is still quite regularly expressed at the opening of the gardening
season by community sacrificial rituals under the direction of the
community chiefs in the village sanctuary. In the same way, the com
munity relation to the land is present in harvest-time purification rituals
and similar ceremonies.
The rights of the community permit individual exploitation of the
land only to the extent that the products of the land go to feed that person’s
immediate or extended family. If an individual overreaches his right and
produces for the commercial market he is treated as would be an alien
out-grouper, insofar as his commercial use of the land is concerned. To
this extent the community rules applying to outsiders also apply to him.
As a constituent share of the community right, the individual has the
right to hunt and gather wild produce for his own use on community
land. What he so acquires is his. In addition, he may set up a claim to
any tree that grows wild on communal land. By doing this, he establishes
a personalized legal bond between himself and that tree. Indeed, he
performs the act by virtue of his membership in the community group,
which alone possesses the right of disposal. But this individual relation,
when once established, places him over against his community to some
degree. The individual title is set up by first making a sacrifice and then
placing a mark upon the tree. This may be an encircling removal of the
bark or the insertion of a row of pegs up the trunk as an aid to climbing;
for these also serve as proprietary marks. In this manner, the tree is pro
visionally withdrawn from the possibility of use by other members. So
the community right is in part displaced, although it continues to embrace
the individual’s right, just as the individual is included in the group and
the individual’s sacrifice is a part of the complex of community sacrifices.
If the proprietary marks are ultimately overgrown by the bark or by
branches, the right of the community once more becomes operative, and
any other member of the group may properly take title to the tree if
he wishes to do so.
Finally, the group member possesses a right of pre-emption in unused
communal land. He can establish a limited proprietary right to any parcel
of land in the public domain. This right of preemption, according to native
92 adat la w IN INDONESIA
law, is but one of the forms in which the communal right of disposal is
expressed. It resides in group members only with respect to the communal
lands of a person’s own group, although outsiders can obtain repeated
usufruct from a community on a year-to-year basis.
Wherever the pre-emption and reclamation of land is done jointly
under the direction of the chiefs, and if the parcels to be cultivated are
assigned by the chiefs, the individual interest in the pre-empted land is
weak and the communal hold remains strong. Especially is this so if the
group moves on to clear a new piece of land the next season, while the
abandoned parcel becomes overgrown with brush.
If a group member undertakes to select a piece of woodland and goes
ahead to make his sacrifice, placing his mark there after first consulting
the chief, then, as has been said above, he establishes a special legal
relation within the community organization. T he substance of this is that
he alone is privileged to convert this plot of land into a cultivated field
to be used for himself and his family, provided that he regularly keeps
up the tasks of chopping, burning, and planting. But if for one season
he neglects the field, any other person may confront him with the alter
natives of resuming its use or of turning it over to that other person. After
the land has been exhausted as a field and is no longer worked by the
title-holder, he still retains a preferential title until the wild trees and
brush that over-run it reach a certain height and thickness. At this stage
the communal right of disposal is reasserted in full force (except in
Mmahasa, see above, page 90). Before this final extinction of his individual
title, however, he may refresh his rights by planting a full-sized grove
of fruit or rubber trees. This does not mean one or a few trees. T h at is
sufficient only to give him proprietorship of the trees as such. H e m ust
plant the whole area, so that it becomes an orchard, a rubber grove, or
a coffee garden. He then holds what is known as a native individual
proprietary right (the “ busuran” in coffee gardens in East Java). Yet
even this title may pass over to a mere preferential title, if the land is
neglected, and it may ultimately be extinguished by the unqualified
restoration of the community right of disposal.
Finally, the individual can lay out fields for cultivation year after
LAND RIGHTS 93
year. Such fields bear self-evident features of his intention to cultivate

continuously because of enclosure by dikes, irrigation installations, or
permanently inhabited dwelling compounds. The holder of such fields
may retain proprietorship as long as anything remains to be seen of the
sawah dikes he has built, or as long as the piles of his house still stand.
Such fields and dwellings may descend by inheritance, and the proprietor
may generally alienate them to members of his own community. Whether
he can also dispose of such properties to strangers depends on whether
the community right of disposal in that particular real estate has been
allowed to be extinguished or not. It may also be that the community
rights survive as a right of option as against strangers. Community mem
bers may prevent sale to an outsider by making an equal offer, which
must be accepted.
The community pervasively exercises its right of disposal over per
manent fields and orchards, for the most part, by an occasional recovery
of such fields after the death of the proprietor. Such rights usually are
reissued to a selected heir of the deceased (see p. 230) or, perhaps, to a
villager, who must then be raised to the status of membership in the
central or nuclear village. The community may also force a father to make
way for his son when the latter marries. It may prevent a nuclear villager
from getting more than one permanent field of normal size, in order to
maintain an equitable opportunity among the villagers. It may also take
back the land as a punishment for criminal misbehavior. It can do the
same when the proprietor leaves the community, and then reissue it to
someone else.
The central or communal authority may for various reasons become
subject to intense pressure for the recapture and reissuance of fields. In
Tnganan (Bali), for example, this has become a regular practice; and
princely levies combined with government taxes have produced a like
effect in the desa in Cheribon and Central Java. A regular and periodic
distribution of cultivated fields has come to be widely accepted. The
sugar industry here has an important interest in pushing this practice
for the benefit of its plantations which lie close to communal fields. This
system of regular redistribution gives all the villagers a chance to an
equal share in the returns from the land. It may also persist of its own
worth when regular redistribution works well because of unequal fertility
of the different areas of the village land. Yet it almost always shows a
natural tendency to disappear when the external pressures are removed.
It has been noted in several places in Java, since the decline of the sugar
industry there from 1933 on, that periodic distributions are passed by
and the legal hold of individuals on the land has become stronger.
If village concern over the land declines, possession of more than one
field by a person and the alienation of fields to outsiders ultimately
becomes extensive. Then the community’s right of disposal is throttled.2
The last surviving traces are found in the power to withdraw a field from
a miscreant, the reversion of fields on death without heirs, or on the
departure of a title-holder to other places, and the cooperation of the
chiefs in land transactions.
Earlier concepts in the literature covering these interrelations, such
as “ communal ownership” with “alternating or fixed shares” in the land
and “hereditary individual ownership” (where the observer was blind to
the communal rights) served only to produce theoretical confusion and
sociological error.
Another internal manifestation of the com m u n ity right of disposal
is in the segregation of particular tracts of the domain as general residential
areas or for utilization by the community as a unit, e.g., cemeteries,
timber preserves, communal pastures and the fetish fields of South
Celebes — fields reserved for officials. These areas are used as sources
of wealth for the community as such and are consequently barred to
exploitation by individual members. Such limitations may be expressed
as prohibitions on the felling of trees, gathering of produce, or fishing
(as among the Toraja).
The reservation system—under which the chiefs, or village head
men, exercise an official control over the public fields and orchards m the
line of their public duties—occurs only where land is somewhat scare.
Otherwise, the chiefs get the same results by merely controlling the labor
of their fellows.
* T h e best known example of this can be seen in Kedu (Java).
LAND RIGHTS 95
Care m ust be taken to distinguish “official” fields from fields which

are given by a family to one of its members when he gets an official post.
T he same holds for the fields occasionally laid out for personal possession
by chiefs exploiting the labor of menials. This is done by Dyak chiefs
utilizing slave labor, and would include the “ dusun” brought under cul
tivation by means of “kwarto” service on the island of Ambon. Failure
to make this necessary distinction has led to repeated and drawn-out
controversies by various writers.
The official fields (called “ saba na bolak” among the Batak, “galung
arajang” in South Celebes, “dusun dati raja” on Ambon and “ bukti”
on Bali) must be distinguished also from the fields assigned by princes to
lower royal officials. This practice is in conflict with the community right
of disposal and belongs to the sphere of the princedom. Today the official
fields in Java (called bengkoq) are used as community fields for the
remuneration of the headman. It is possible, however, that they originally
were part of the princely domain. Certainly, the one-time official
compounds of the village chiefs in royal territories were so. The term
“ gaduh” which occurs in Java as referring to official fields is confusing
in the extreme, because it can also refer to appenages.
2. Extra-communal relations.—The communal right of disposal is
expressed toward the outside world as a series of limitations on access
to communal lands by outsiders. Out-groupers may exploit such lands
only after they have paid in advance a fee for the use of the lands, and
continued to pay rent afterwards. In principle, they obtain usufruct for
just one season. They may never buy, sell or inherit such fields. Nor
may they receive such fields as security. And finally, under native law they
may be forbidden even to enter upon the communal lands, or perhaps
be subject to other disabilities, although this last power is today of
doubtful constitutionality.
Outsiders must apply to the village chiefs for permission to use village
land. To pave the way for a favorable response to such a request, a little
gift to the chiefs is good Indonesian custom. In certain law-areas it is
customary to give a tangible token to the community at the beginning
o f the enterprise, so as to display the outsider’s consciousness o f the
advantage he is about to realize on someone else’s land. In Angkola, for

example, when a group of people, who do not belong to the ruling village
wish to get permission to set up a new hamlet in the area of disposal
belonging to a regional community, their headman must bring in six
water buffaloes. These are then turned to the profit of the whole regional
community. And on Bali the population of the immigrant village of
Kastala is nothing other than share-croppers on the fields of the people
of Tnganan, the owners of the land. Generally, however, the practice
is merely to give occassional token payments in addition to the initial
compensation. This, too, is largely to symbolize the admission of advantage
derived from someone else’s property, because the payment may be very
small, indeed. In Minangkabau the legal maxim “ lembaga dituang, adat
diisi” is sometimes explained as meaning that strangers owe acknowledg
ment and retribution to the community. Whatever earnings are brought
in from this source go to both the chiefs and the people.
As against the rights of outsiders the community believes that its
ultimate title is never impaired. Aliens cannot permanently settle on the
land. Their relation to it must remain loose: the “ orang menumpang”
as contrasted to the iCorang asal” among the Rejang. Only when outsiders
have lived in the community for generations do they acquire a more
clearly fixed title to their fields. And even then their rights readily give
way to the rights of the community in any crisis. In addition, the descend
ants of the original village in a regional community, or the descendants
of the founding lineages in a village, sometimes constitute a central group,
which alone enjoys the full extent of the land rights. Other persons,
although they may long since have become regular citizens in the com
munity, nevertheless have an inferior legal status in this respect. This
is the light in which we must understand the relation of the ruling “ marga”
among the Bataks and their dependent co-residents on the soil. T he inferior
co-residents can obtain permanent native title to land, however, as marriage
gifts upon the marriage of a daughter with a scion of a ruling “ marga” .
In a number of areas we find that two communities may agree to
merge their interests (as when chiefs’ families intermarry). Then it may
LAND RIGHTS 97
come about that the clearing of land and the use of fields is regulated by
the rules of internal disposal, rather than the alternative.
In observe to the rights of disposal of land, which a co m m u n ity enjoys
toward the outside world, the community is subject to certain duties
towards outsiders when an offense against outsiders has been perpetrated
on the community lands by unknown persons. The close connection of
those duties to the land rights is shown in cases wherein the corpse of
a m urdered victim has been found, and the field in which the body lay
has been turned over to the victim’s people.
3. Duties of chieftains.—Because of the dual aspect of the com
munal right of disposal (i.e., internal and external relations), the chiefs
bear a twofold task. Externally, they are the representatives of the com
munity in dealings with strangers. Internally, they are the governors of
the manner in which their followers enjoy their rights and privileges
under the community right of disposal. They are also the guardians of
the official fields which are used for strictly communal purposes.
4. The function of the right of disposal.— The communal right of
disposal applies not to land alone. Water (rivers and stretches of the sea),
wild flora (bee trees, fruit trees and timber) and wild animals come under
its sway. Because of innumerable circumstances, the operation of the right
of disposal may work quite unevenly within a given area. In Java it is
now exceptional for any vestige of a village right of disposal to exist in
connection with woodland wastes. Yet with respect to the land in dried-up
river beds, emergent islands, or any other land reclaimed from water, the
communal right operates in Java as everywhere else throughout the
archipelago.
Then, too, the right of disposal over cultivated land does not always
operate in the same manner. In some law-areas (e.g.) South Tapanuh,
Ambon, Bali and Java) it is possible to note three levels of operation in
some villages. First, the com m u n ity right is strongest with regard to
lands without an owner, which have reverted to the village and then been
reissued by the village to a new proprietor. That person’s legal status for
the time being permits no dealings in the land and is weak in resistance
to village interference in his title ; as, for instance, when it is desired
to recapture the land for non-performance of communal services. Second,

the right of disposal is also strong with respect to those lands which are
original holdings of the villagers. So long as a male descendant holds the
land of his family ancestors, he has a firm hold as a member of an original
lineage within the village group. However, the village interest is on the
alert against any change in the legal possession of those original lands.
It admits of no alienation, no division among heirs, no combination with
other fields. If a native villager dies without heirs the village appoints a
new person to use those particular fields or orchards. This new proprietor
will acquire a position similar to that of persons who have held such fields
from of old. But that takes a good long time. Third, there may be fields
or orchards in addition to those issued by the village. These are individually
owned, and the community interest is w eak; the proprietors may pawn
or sell such lands ; their reversion to the village is exceptional, and village
interference with these lands is rare. In Java such lands are called “sawah
jasa” (in contrast with the “sawah pekulen or gogolan” ) ; on Ambon,
“ dusun pusaka” (in contrast with the “ dati”).
It is this variegated action of the village rights that is sometimes,
and erroneously, called “mixed possession” .
Residential land is occasionally handled differently under the com
munal right of disposal of a village than is cultivated land. Villages interfere
more readily to create living space than they do to make workable fields
available.
5. The dual area of disposal.—T he dual area of disposal is encoun
tered in two different ways. In the first and more exceptional instance,
an inland village will possess its actual residential and food-producing
area; and, in addition, it may hold a distant maritime area from which
it derives its indispensible sea products and salt. The more common dual
form, however, is that which occurs when a given area falls within the
disposal powers of both a local village and the regional community in
which that village lies. As a starting point you may imagine a piece of
territory in the possession of a community. Within this regional community
a number of local groups are established and settled in a num ber of resi
dential areas; each group is on an equal footing with the rest. M embers
LAND RIGHTS 99
of each village reclaim parts of the common regional dom ain; fields are
used and then abandoned. Subsequently, they become overgrown as the
gardeners move on to other clearings. I f so long a time has elapsed that
even the preferential right of the ones who did the job of reclamation are
dead and the lands have remained a parcel within the regional community
area of disposal, the regional community continues in competence (power)
to adjudicate disputes between members and their local chiefs and to
control the admission of outsiders, etc., with respect to these lands. At
no time are the members of the regional community dealt with as though
they were outsiders to any village in the group.
Lands that lie interstitially between the specific areas of disposal c f
the several villages are under the sole control of the regional community.
Extended family rights to disposal of waste lands held by the “suku”
or “kampuang” within a “nagari” in Minangkabau, or rights held by the
“ dati” within the Ambonese “negory” are subject to similar principles.
6. Delimitation of the area of disposal.—Throughout all law-areas
the areas of disposal are sharply bounded by the staked claims of other
communities. Vague boundaries, on the other hand, may exist where there
are wide areas of uninhabited land.
7. Means of protection of communal areas of disposal.—As long as
there is no superior power above the communities, territorial sovereignty
depends upon defensive strength or upon mutual agreement. In order
to meet the special problems that arise because of this, many Indonesian
communities have developed special officers, whose function it is to protect
the boundaries. Such men are the “jaring” in Minangkabau, the “ teterusan”
in Minahasa, the “kepala kewang” in Ambon, the “lelipi slem bukit”
of the Tnganan in Bali and, apparently, also the “reksabumi” in Java.
Not only is protection of the boundaries possible by means of local
frontier guards and patrols, with occasional petty wars, but if a village
union or a prince or central government is established over the villages
additional protection may be gleaned from letters of recognition by the
prince, and decisions of federative (native), royal and colonial judges and
governmental administrators. This benefit has given direct impetus to
the rise of native principalities in Bali and Indragiri.
8. Legislative ignoring of the right of disposal.— Failure to recognize

the right of disposal in Dutch legislation has resulted in considerable
unnecessary contradictions.
9. Terminology.—I t rarely seems to have occurred to Indonesians
to coin a term for the right of disposal; at any rate, few languages in
Indonesia have a specific word for the concept. But the area o f disposal
as such is always identified by some definite term. This term may give
expression to the area of disposal as a possession (patuanan, in Ambon)s
as a food-producing area (panyampeto, in Borneo), as a demarked territory
(pawatasan in Borneo, wewengkon in Java, and prabumian in Bali), or
as land forbidden to outsiders (totabuan in Bolaang Mongondow). Various
other terms are also known to exist, as for instance, “ torluk” in Angkola,
*‘limpo” in South Celebes, “nuru” in Buru, “payar” in Bah, “ paer” in
Lombok, and “ ulayat” in Minangkabau.
10. The supervisor of lands.—The title “grondvoogd,” or super
visor of lands, is given a double meaning in the literature. I t is used in
the first place to indicate the community soothsayer, who is especially
versed in the techniques of making the supernaturals act in accord w ith
human desires in the use of land. In the other sense, it is used to apply
to the particular official who, in addition to the general chiefs and
authorities, is the specialist in wielding the powers of disposal vested in
the community. In correct technical usage, according to adat law, the
word should have only the second meaning.
The separation of general authority and control of the operation of
the right of disposal is apt to take place when an outside power penetrates
the community or is foisted upon it. In such a situation it is possible to
conceive of the three functions—soothsayer, land supervisor, and general
headman—as existing side by side. But almost always the functions of
soothsayer and supervisor are merged. The same is true of the functions
of supervisor and chief, if no alien authority enters the picture. I n his
relation to native law the land supervisor is the actual symbol of the
unbreakable link between the group and its soil. Even though the general
political authority may be entrusted to a superior alien power, or captured
by it, that bond of folk and soil persists. And it is just because the land
/
LAND RIGHTS 101
supervisor is, so to speak, the personification of the spiritual relation of

the people to their land that he is also usually the ceremonial soothsayer.
In East Sumba, for example, control has been captured by alien invaders.
But the chiefs (maramba) of the conquerers left the control o f the lands
as such in the hands of headmen of the indigenous population. By this
act these local chiefs became the land .supervisors, or “mangu tanah”,
as they are called. On Savu the name of the comparable supervisor is
“ déo rai” . In this part of the archipelago, however, the implications of
the title (literally, “lord” or “ owner of the land” ) are more grandiose
than real. In actuality, he is only a soothsayer.
During the profoundly radical changes that followed the formation
of regional communities (the negory—see above, p. 57) on Ambon, with
regional administrations appointed by foreign authority, the old clan
chiefs (upu aman) continued to exercise their old functions, which
stemmed from the ancient communal right of disposal. In this capacity
they had now become land supervisors (tuan tanah).
In some villages of the Pasemah, there is still a factotum known as
the “ jurai tua” . He is a direct descendant of the village founder and
possesses authority in affairs of land use along with the village headman.
The same institution is reported from the mixed villages along the Barito
River in Borneo. When the number of outsiders in a mixed village gets
to be so large that even the village chief is chosen from among their
number, the old adat-law chief of the original villagers still carries on
as a “pengulu” , but only as on official who deals with matters of real
estate.
In one village of the Kampar region there is a distinction between
the chiefs (pengulu andiko) and land supervisors (tuo ulayat), which was
brought about by the bestowal of chieftainship by outside authority upon
representatives of a younger branch of the kin group from which the
chief should come in consonance with the native law. This has occasionally
cropped up elsewhere.
The fundamental idea of the supervisor of lands, namely, that the
group and its land are inseparable, shows up in yet another way. An
earlier report on the Minahasa states that seizure of the land after a
successful war was deemed “impossible” .
It may also frequently be observed, when for administrative purposes
several villages are combined into one community, that although the
new village may be put under one head and officially recorded as one
village, the two or three original villages still keep their independent areas
of disposal to themselves. A member of the newly constituted village is
still a stranger on the lands of the old village segments of which he was
not originally a member. A chief of the new village cannot try to establish
land rights in the holdings of the old villages embraced within his new
community, unless he is himself an original member of the old village
in question, or unless he has its permission. The fact that he is political
chief over the entirety is of no concern.
Alongside of these frequently discernible manifestations of the old-line
land supervisor idea there is, however, the equally common idea in some
territories that new authority can develop a connection to the land. In
West Toraja it is the very nobility, which is called “ lords of the land”
(puo tampo), that has apparently immigrated.
11. The inalienability of land.—Alienation of a parcel of land from
the communal area of disposal, although rare, does sometimes occur.
It has already been mentioned in connection with collective responsibility
of the group for a murder committed on its land by persons unknown.
The release of a piece of land in exchange for a transfer of goods, in order
to maintain an equilibrium of magic, has been reported just once (the
manjawi of some Dyaks). This transfer is sometimes completed only
after a lapse of time, when the new possessors proceed to bury their dead
in the acquired plot. As a consequence of village wars or of pressure by
a central authority, some release of territory has occurred, leading even
to the abandonment of the land supervisor notion. And yet, in spite of
these few exceptions, the principle that the communal area of disposal
is inalienable prevails as the rule.
12. The personalization of the right of disposal.—T he basic form
of the right of disposal is thus seen as a series of rights of the group to
its land. The right is exercised on the one hand by the group as a group
LAND RIGHTS 103
and on the other by the chiefs in the name of the group. In this, the
possibility of a marked personalization of the right is already at hand.
Personalization occurs in a variety of ways.
T he extreme form of the personalized right of disposal is in the petty
principality in which the prince is the lord of domain (and not alone in
name) for the entire area, and in which the characteristic traits that point
to the ccmmune as the legal subject are secret, feeble and much in the
background—as is the case with the Simelungun-Bataks. Throughout
the southern Batak country a constant push on the part of the chiefs to
make themselves the bearers of the right of disposal is especially noticeable.
In Java also, when a chief’s own desa is given to him as an appanage by
a ruling prince, an instance of marked personalization occurs, as seen
from the side of the" villagers.
Personalized control produces the following symptoms : the luring
in of strangers for the exploitation of pearl banks or forest lands y the
levying of tribute from members of the group, albeit to a lesser extent
than from strangers; the limitation to a short time for the reversion of
an abandoned field to the unrestricted right of disposal (so that the chief
may all the sooner reissue it to someone else for a consideration).
13. The effect of superior authority.— In addition to the already
mentioned consequences of royal authority and Dutch colonial interference
(see p. 85), the community right of disposal is subject to invasion, arbitrary
exercise of power, and intensification.
By invasion of the right of disposal from the princely sphere is to
be understood the duty of handing over to the prince as “ barang raja”
any product of great value, such as rhinoceros horns, camphor, ivory,
bezoar stones, and so forth. There is also princely expropriation of cul
tivated fields for use as hunting grounds, royal fields, or as state fields
bestowed on a royal satellite, or for some other royal interest. The legal
claim on all teak woods as national property by the government is similar
in effect.
To get at the significance of arbitrary exercise of power it is necessary
to understand what has happened in the appanage centers of the princi
palities and in the coastal metropolis, as has already been noted in describing
the effect of these phenomena upon the communities themselves

(Chapter I). The consequence has been an individualization of land titles
to such an extent that there is absolutely no room left for either residential
space in an autonomous village or its collectively held fields.
Intensification, as a consequence of princely or Government demands,
is the process which forces the villages to use all the land as intensively
as possible, until access to fields comes to resemble a reward for the
performance of communal services, and no longer is a right of the village
in itself.
In an extreme form the right of a Javanese desa to land became a
means of control by the prince or central government instead. In this
extreme form the “ dati” right in Ambon came to resemble a compensation
for “kwarto” services.
B. RIGHTS OF INDIVIDUALS IN LAND
I. INDIVIDUAL RIGHTS IN THE LEGAL SYSTEM OF THE COMMUNITIES
a. The native right of possession.—If a member of a community,

by virtue of the right of disposal, establishes a personal bond with a resi
dential compound or a field, then his rights are called the native right
of possession. This is the case even though the right endures no longer
than one or two seasons. If it is limited to but one year—as in the “ akuen”
lands of North Java, the “ teleng” lands of South Celebes, and in the
worst forms of annual redistribution of fields in Java—then we shall
call it a right of usufruct.
There is really no absolute delimitation between the native right of
possession, so-called, and the right of usufruct. In this light, the right
of usufruct is but the extreme form of the powerful community right
of disposal with respect to cultivated fields. This last produces the result
that after each harvest, whether in conjunction with the annual flooding
of fields, under severe pressure from the outside, or whatever the cause,
the individual right disappears and the ground reverts to the community
under its unrestricted right of disposal.
LAND RIGHTS 105
Native terms are rare also for the native right of possession. Simple
possessive pronouns in conjunction with the name for the type of field
are sufficient for the vernacular. The word “miliq”, borrowed from the
Arabic, is frequently employed in an objective sense. “ That sawah is
my miliq” , means . I have a native right of possession in that field. The
Javanese word “wewenang” is not in the vernacular and can have other
references than to a native right of possession.
The communities themselves may hold a native right of possession
in land. If the community buys land for community use we have a native
right of possession vested in the village or regional community. When, as
happens in a few isolated instances, a native term lumps land held under
a community right of disposal and land held by a community under a
native right of possession (e.g., Balinese, “druwe desa”), we must never
theless keep the distinction clear.
The well-known district compounds (kintal kalakeran) in the city
of Manado are but one example of community ownership. Family groups
and lineages also are native owners, and this fact is given expression in the
Minangkabau term “harta pusaka” .
b. The right of usufruct.—'The typical right of usufruct applies
in the case of the stranger who obtains permission to reclaim a portion
of the community area of disposal and whose legal relation to his reclaimed
plot ends at the close of the harvest. The right is renewable, however,
and may actually result in a long occupation of the plot. Nevertheless,
according to the adat law, such a holding is no more than a continuous
chain of usufruct rights, each ending with each annual harvest.
Just as the native right of possession is determined by the internal
functioning of the right of disposal, so the right of usufruct is defined
by its external manifestations.
c. The right of preference.—The beginning and termination of
an individual citizen’s right of possession is marked by the right of
preference to land. It is a legal relation to a piece of land which endows
the privilege of appropriating for further cultivation a field which has
already been under cultivation by someone else. Under adat law there
can be a preferential right of a person who has placed an identification
mark or has begun the reclamation of waste land; if he does not perform
the required activities of chopping and burning within the given time,
then some other person can force him to do so or give up the plot.
Further, there is known the right of preference of the former possessor
of a plot of cultivated land. For example, if a person lets a field go untilled,
and it has not yet reached the condition whereby it reverts to the com
munity area of disposal (see above p. 92) anyone who wishes to begin
working the field has to inform the possessory holder. T hat man then
must resume its cultivation himself or give permission to the other fellow
to go ahead. Sometimes he is paid for giving his consent. But until permis
sion is obtained, it is forbidden to undertake the reclamation of land which
is still held under someone else’s individual right of possession. Land
which is in this intermediate status may have a special name, such as
“ burukan” in Borneo.
A possessor of cultivated land may in addition (in some locales) hold
a right of preference to adjacent waste lands. In South Sumatra such lands
are called ekor tanah, “tail of a cultivated field” , or in Boalemo, yali yalilio,
“ child of a cultivated field” .
d. The right of exclusive option.—This right (in Dutch, “naas-
tingsrecht” ) consists of the power to buy title to cultivated fields, residen
tial compounds and fish ponds at the price offered by a third p a rty ; the
offer of the third party is extinguished by the power of the holder of the
right of exclusive option to take the object of sale at whatever price is
offered.
There are three distinguishable forms of this right. First, there
is the power of relatives to buy land in preference to non-relatives
second, the power of community members to shoulder aside outsiders
as purchasers; and lastly, the right of a land owner to preference over
others in the purchase of land adjacent to his own.
e. The right of an official to land incotne.— Another individual right
in land-use rests in the hands of chiefs and community administrators.
It is the right of officials to utilize for their own maintenance those
segments of the community lands that are put at their disposal, as official
fields, during their tenure of office. This right in an individual is extin-
LAND RIGHTS 107
guished at his death or resignation. The land then reverts to the unre
stricted right of disposal of the community.
f. The right of utilization.—We should also take note of a further
individual rig h t: a derived right to utilization of fields, ponds and com
pounds accruing to an individual by virtue of his membership in a kin
group, which holds a right of user to the real estate in question. A Minang-
kabau lineage has native possession of its “pusaka sawah” ; the families
within the lineage have rights of utilization (ganggam bauntuiq) in the
fields assigned to them. In the Minahasa, lineage members have a right to
the use of undivided lineage lands. Similar forms exist elsewhere.
In the Minahasa and the Batak territories, a community member has
the right to lay out a field or have a residential compound—with the
permission of the community—on lands that are in the native possession
of other persons or lineages (see also pp. 90, 139).
g. The rights of pledging and prepaid rental.—The rights of pledging
and prepaid rental, and the institution of “wakap’ may be considered as
rights flowing from transactions in land. The nature of the first two will
be dealt with in Chapter III, that of “wakap in Chapter VI.
2. INDIVIDUAL RIGHTS IN THE LEGAL SYSTEM OF THE PRINCIPALITIES
Just as there is a tension between the individual’s rights and those

of the c o m m u n i t y in its area of disposal, there is a similar interaction
between the prince and persons entitled to land. If we take the political
authority of the prince as a point of departure (ignoring the question of
his rights to the land), the native’s title is either an individual right of
possession, an official perquisite, or a lineage perquisite in cultivated
land or residential compound. If it is a native right of possession it entails
heavy burdens of duty to the prince. Therefore, it is not apt to be highly
valued and will be readily relinquished. By reason of its instability it
might be called a mere right of tillage.
a. The princely domain.—It should suffice to treat the whole
problem in terms of the construct set forth just above—namely, the
interrelation of princely political authority and the various types of indi-
vidual rights. However, because of the intrusion of three factors, an actual

concept of a royal domain, the prince’s own right of possession, enters in.
The first and most innocuous of these factors is the prevalence of a
Byzantine verbiage that dubs the royal land, “ the Prince’s own” , just
as everything else “ belongs” to the prince, and is labelled as his. (See
supra p. 81.)
The second factor is that the legal figure of the prince’s native pos
session of unused land represents the extreme form of the personalized
right of disposal. In relation to the outsider it is a convenient quasi
complement to the weak position the outsider always holds on land
granted to him.
The third factor which promotes the concept of the royal domain
is the effect of heavy levies and an occasional rough ejection from the
land. T he individual right then comes to assume a close similarity to a
weak claim by a dependent on the prince for the use of land as compen
sation for services. It establishes a share-crop arrangement, with the
prince as landlord (in native possession) and the “ native possessor” as
share-cropper. The prince’s pressure on the native right of possession
is furthered by the institution of appanage.
b. Appanage and possession of land.—The holder of a small ap
panage was usually a stronger and more demanding lord than the prince
himself, exerting .his powers by means of his agents, who were clothed
with some authority, or by means of subservient chiefs. In exceptional
cases his own private lands/might be included in the appanage which he
held, so that he appeared on his own tax rolls as a taxable farmer. In such
a situation his personal holdings can hardly be distinguished from official
lands provided to produce recompense for official services.
This close similarity to a right to the land is furthered by yet another
set-up to which the appanage system has apparently led. An appanage
holder may be entitled to the share of the crops originally owed to the
prince; let us say, two-fifths of the output. He may also have two-fifths
of the area of the cultivated fields put at his official disposal. This will
result in the whole yield of these fields, which are worked for him either
in toto or in part by compulsory labor, accruing to him. The yield of the
LAND RIGHTS 109
rest of the fields under cultivation goes to the working farmers. I f then,
as has in recent years been the frequent case in the princedoms of Java, the
appanage holder leases the land, which has been set aside for his use, to
some commercial enterpriser, such as a sugar planter, then it looks as
though the appanage holder were the actual owner of the la n d ; the enter
priser, the ten an t; and the little man, a subservient farmer, who has been
rewarded with the use of a field. A knowledge of the operation of the
appanage institutions is thus necessary, primarily for a tiue comprehension
of the historical background of regulations dealing with land rights.
In Java, where the appanage system was carried through to the
greatest degree, desa are still to be found, which were bestowed as “free
communities” (desa mijen) in appanage to a royal kinsman of favored
subject. Today they exist as survivals of the appanage system which are
maintained by the government. Their legal status and relations are to be
understood accordingly.
Similar in nature to the “ desa mijen” are the villages of West Toraja,
which are assigned for life to a royal bride by the Kaili and Sigi princes
in order to give her a life income from the levies paid in by the villageis.
Appanage is also important in the understanding of real estate relations
and rights in the princedoms of Sumatra, Borneo, Celebes and Ternate.
In Java, where they were abolished by purposeful reorganization,
the appanages no longer exist. Elsewhere, they disappeared with the
decay of princely rule or in consequence of gradual internal changes in
legal relations.
With the reorganization of the principalities, the appanages disap
peared and with them the royal satellites, with their official fields and
compounds. In their place are villages holding a weak right of disposal,
farmers with individual native rights of possession, and village officers
with an official right to take remuneration from certain communal fields.
3. INDIVIDUAL RIGHTS IN THE LEGAL SYSTEM OF THE DUTCH GOVERNMENT

Consideration of the main issues of land rights in the legal system
of the Government brings us into contact with a bit of agrarian legislation.
We shall not here discuss the attempt to extend the governmental legal
system directly across all individual rights to the land and directly across
the community right of disposal. Everything to be said about it by way
of constructive criticism can, in my opinion, be found in the published
Advies der Agrarische Commissie (Report of the Agrarian Commission,
Landsdrukkerij, 1930). A dissent to this report is given in a publication
of the committee appointed for the study of the agrarian report by the
society, Indie Nederland, issued in 1932.
This governmental undertaking bears a tremendous burden of con
fusion on its conscience. Fortunately, it was hindered at the outset and
finally halted by the vitality of native legal life in the small villages, aided
by some governmental administrators and judges — and by science. Now
the only thing still wanting is the pronunciation of the words, right of
disposal, by the legislator, who has in fact recognized and regulated that
right, recently as well as formerly, even if he will not acknowledge it.
The legal system of the Government embraces and supports the
native land rights systems as we have described them when treating the
legal systems of the communities. It does this in its defined principles
and administrative procedure. The basis for this rests in the East Indies
Constitution (Indische Staatsregeling). Therein, the King and the States
General laid the initial premise that the native legal system should be
valid as the basis and point of departure for the legal relations of the
Indonesians and for relations concerning land.
The legal system of the Government applies directly and exclusively
in all locales outside of the small autonomous communities — on unin
habited islands, in large cities, in no man’s land. In these places no com
munity right of disposal obstructs the individual right of possession, nor
does any princely pretension. The individual right is merely limited by
the legislator. In this area there seem to be no official lands, nor rights
of preference, usufruct, or exclusive option. These are rooted in the legal
systems of the small communities, and they have no standing outside
of them.
Comparable with appanage in the princely sphere, from the point
of view of the exertion of pressure on native possession of land, are the
private landed estates in the directly governed areas.
CHAPTER III
L A N D T R A N S A C T IO N S
T N T H E LA ST chapter we drew the outlines of land rights in real

estate where ownership is fixed. Now we may attempt to delineate the
main features of the dynamics and establishment of new rights in land.
This means that we shall sum up in systematic way the formation of rights
to land and the transfer of such rights. This can be done under the head
ings of the founding of villages, individual reclamation, sale and exchange
of land, mortgaging of land, prepaid rental of land, the segregation of
land into independent legal property, subdivision and gift.
A. THE FOUNDING OF VILLAGES
Just as we had to begin the treatment of fixed land rights with a con
sideration of the basic group right, namely, the right of disposal, so a
treatm ent of transferable land rights must start with the legal right which
leado to the original creation of the group right.
T he circumstances accompanying the arrival of the Javanese and
Sundanese people on Java lie too far in the distant past for us to be able
to say anything aboutythem. This is equally true of the Sumatran Batak,
the Minangkabauans and Niasans, the Buginese, the Torajas, the Alina -
hasans in Celebes, and all the rest. Our starting point is perforce the
law-areas of today with their typical peoples and the units of social organi
zation peculiar to each. Each of these law-areas shows a similar
phenomenon : the emergence of new autonomous communities resulting
from regular colonization.
Just as kin groups expand and throw off little groups of persons, who
take with them titles, lands and other property to form family branches,
which in turn become new lineage»—just as families form new families by
the fission of children—so villagers form new villages and regional
communities.
I ll
The process may be described as follows. A village outgrows its re

sources. No more forest products are available within a decent distance.
There is a shortage of arable lands sufficient for all the members. Personal
friction makes living together unbearable. Perhaps ambition for individual
power and an increase of rights urges some man on. There may be a desire
for an independent line of descendants. Or there may be any variety of
other causes. Then a little group breaks off in order to reclaim unused
land some distance from its parent village and to establish itself on this
locale, if possible. A younger brother of their previous chief holds the
leadership.
Or ten men, ten women, or ten men and women work on a footing
of equality. They build garden huts. They establish their tie to the land
with ritual sacrifices. They cut, burn and plant. Then if the harvest is
successful, more people come and more houses are raised. A village meeting
house, a sacrificial place, a village square, a temple and a village wall are
laid out and built. These people are still members of their original com
munity, but the process of founding a new village is under way. For the
second year’s work new fields are chosen in some other spot, but the new
group is in a special position in relation to the abandoned fields of the
previous year. At first they bury their dead in the mother-village, but later
on they use their own territory. And this is an important fact. No less im
portant is the birth of a second generation on the new land, for members
of the group now have a tangible bond in place of birth.
From the outset the group forms its own order. T he founder and his
descendants are the principal persons, and under them are the heads of
other families. Or else the assemblage of founders and their descendants
take the leading status and are later supplemented by the heads of addi
tional family groups.
The group, which is thus separated and developing in accordance
with its own structural nature, grows into a life-bond with the land. Birth
and death, sacrifices and omens, clearing and overgrowing, planting and
harvest, work and sweat all play their part.
The day finally comes when the bond with the original village is for
mally broken. Ceremonies are performed, which are necessary to promote
LAND TRANSACTIONS 113
the cosmic status of the new community in equilibrium in the old envi
ronment. Boundaries are fixed; independence is established; the new
right of disposal is inaugurated, and the founding of the village is com
pleted.
T he founding of a new village on land already held by its members
in native possession in its own regional community is naturally a less radical
step. As in the case of the Bataks, it runs its course in a short time.
In some of the law-areas a variety of circumstances reduce and ob
struct the process of village fission. If the communities are too close
together, there may be a lack of unused land available. Or forest reserves
and waste land under long lease close such areas to settlement. Rapid
communication under modem conditions opens up many opportunities
for dynamic persons. They need no longer rely on the old-time, single
possibility described above. Large cities can now absorb those who for
merly fulfilled their urges by founding new villages. T he founding of
large villages is encouraged by the Government. But in spite of these
factors, the formation of a small village is the basis of thousands of local
communities, in which local populations now lead their legal lives.
B. LAND RECLAMATION BY INDIVIDUALS
I. General principles.—Perhaps the founding of a village and the estab

lishing of a communal right of disposal may be called a unilateral legal
act of the group with respect to the land. Then the reclamation of ground
from the area of disposal by the efforts of an individual would be the
preeminent example o f an individual unilateral legal act. But the right of
reclamation is not to be contrasted to the right of disposal in adat law. It
is, rather, the right of the individual to exercise that part of the right of
disposal that is vested in him. Reclamation of land by an outsider is to
be viewed as an act permissible under agreement upon request of per
mission, not as an act resting in an original right vested in the person of
the reclaimer.
Reclamation by any member of the group in his own territory takes
place with the prior knowledge of his community headman. T hus it is
revealed as a legal act, which brings about relations which raise a claim to
protection in the legal system of the community. The chief is on guard

against the invasion of the rights of others. He especially watches out for
rights of prefereDce (a preventive legal action on his part) and against
invasion of the lands set aside for community use.
When an individual has fixed his claim by placing his identification
marks on a field aggression against the land is aggression against him.
In addition to the marks described on page 92, there can be marks notched
in boundary trees, stakes to which leaves have been attached, or two forked
sticks placed in the ground with a horizontal crosspiece on which wooden
hooks are hung, one hook for each plot to be reclaimed. Or else, a buffalo
horn may be suspended to indicate the number of buffaloes that will be
claimed in damages for encroachment on the plots under reclamation —
one full buffalo for each horn displayed. Also, the reclaimer makes his
personal sacrifice, alone or with the aid of a land soothsayer. He does
this in order to remove the danger to his life that could magically result
from upsetting the existing state of affairs. He also propitiates the evil
spirits and invokes the aid of friendly ones.
When the course of the seasons indicates the proper time, the first
act of reclamation, the cutting of trees and brush, must be undertaken.
Reclamation in any outside area begins in the same way, after obtaining
permission of the chief of the community, which holds the right of disposal
i r the land. In this case, however, the reclaimer must be assisted in making
his individual sacrifice by a member of the community in question.
Reclamation on no-man’s land is exclusively governed by the legal
order of the principality or the Dutch administration. In directly adminis
tered territory the reclamation orders are not then curtailed by any
communal rights of disposal. Government ordinances are also valid with
respect to areas under communal rights of disposal insofar as they do not
conflict with such rights.
2. Secondary legal consequences. — By the unilateral individual legal
act of reclamation a personal bond is established between the reclaimer
and the reclaimed arable field. This is a magic relation and a le&al relation
within the magical and legal complex of the group and the land. That
bond between the arable field and the human being is, however, not
la n d t r a n s a c t io n s 115
sharply lim ited to hum an being and arable field, but extends from the
person to his family and, according to the structure of his system
of relatives, to his family group, his independent sub-clan, i t extends
from the land to the adjacent land (right of preference). Indeed, the bond
can sometimes suddenly be converted into a very intense relationship o f
the family groups to the land, if, for example (as among the Maanyen
-Dyaks on Borneo) the reclaimer dies on the arable land 1 or a woman is
confined on this land. T he reclamation may also terminate in family gioup
possession,. ?f the reclamation is carried out on behalf of the family group.
If an unm arried man, having separated from his relatives by migration,
reclaims a parcel of no-man’s land somewhere else (possibly with obser
vance of the provisions of a reclamation ordinance), then no other legal
relation is established than that of the reclaimer to the arable field.
c - BILATERAL LAND TRANSACTIONS WITHIN THE COMMUNITIES
1* General features. — The necessary and logical starting point for

the understanding of the bilateral land transaction within the framework
of adat law is the magico-religious bond between the person (including v
his lineage) and the land, a» brought about by his act of reclamation. The
community may be conceived of as a circle within which are smaller circles
of persons and land, in definite relation to each o th er; also included may
be circles representing units of family groups and their land, where such
groups occur.
Now it is possible to loosen some goods from such a concietely
thought of unit, and transfer it to some other unit. But this may only be
accomplished if the transfer is done with gieat care, and if all disturbance
of the normal equilibrium is avoided by a simultaneous tiansfer of some-
thing equivalent on the part of the receiving unit. This simultaneous
transfer is a cash payment. It is thus possible to call thio kind of a legal
transaction a cash transaction. It is manifest in the law of relationship,
too, when adoption of unrelated children calls for a payment by the foster
parents in magical objects or money (see page 175). This is also the case
1 Th e land is then called ” taneh kauhi.”

in the transfer of children from the clan of the m other to the clan of the
father in return for an adat payments called “ pedaut,” among the Rejang
(see page 177). I t is also found in the form of bride-price in marital arran
gements (page 185). It is also to be seen in the property law o f transfer
of rights in land. And it is likewise present in the transfer o f personal
possessions, which are closely connected to the maker or owner and are
charged with personal magic. Some such objects aie carved stag hern,
m etal weapons, tiger’s teeth and various amulets.
This concept of transfer is represented by the Malayan word “menjual”
and in Javanese by adol” , while in high Javanese it is “ sade” . These
words should not be translated “ to sell” , unless there is evidence that a
perm anent transfer is intended.
Jual transactions in land can be of three sorts :
0)s Transfer of land for a cash sum, with retention by the vendor
of an optional right to recover the land by payment of an equivalent sum.
This form is variously called “ manggadai” in Minangkabau, “ menjual
gade” in Malayan, “ adol sende” in Javanese and “ngajual akad” or “ gade”
in Sundanese;
(2), Transfer of land for a cash sum, without an optional right of
redemption : thus permanently; this form is variously called “ menjual
lepas” in Malayan, “ adol plas”, “runtumurun” or “pati bogor” in Javanese,
and “ menjual jaja” in Borneo;
(3)3 Transfer of land for a cash sum with the understanding that
the land shall revert automatically to the vendor after a set num ber of
harvests. This form is called “menjual tahunan” in Malayan and “ adol
oyodan” in Javanese.
We call the first of these the pledging of land, the second the sale of
land, and the third the pre-paid rental of land.
2. The cooperation o f chiefs. — For any legal transfer of land t
have validity it must be effected with the cooperation of the village chiefs.
In Java their role in the process is indicated by the word “ tanggung”,
which shows that by their cooperation they give warranty of the regularity
and legal validity of the act. They make the act open to public observation :
an act which because of this in Java is termed “terang” and not “gelap
peteng” (clandestine transaction). It is an act which has taken place in

the open and publically certified, and hence in Batak is named “ di bagasan
adat” .
T he function of the chiefs is to provide the opportunity for comem bsrs
in a family group, or the adjacent land-owners, or the covillagers to advance
their claims whenever a piece of land is about to change status.
When land is to be sold or pledged, if the lineage bonds are still strong,
it m ust be established that the lineage approves of the release, or it m ust
be determined whether the lineage wants to take over. And in some regions
it m ust be ascertained for certain that the adjacent landlord does not wish
to exercise his rights of option. And, if the land is to be alienated to an
outsider, it m ust be established that the co-villagers do not wish to make
any use of their own right of option. Sometimes the m atter of security
(see page' 136) is also supervised by the chiefs.
T he effect of the chiefs’ action is to forestall litigation. Legal propriety
is established beforehand, as though a decision were already made when
the chief offers cooperation. For example, when a chief performs in the
act of admission of an outsider to the land, he has made a tacit decision
on the application of the law of disposal in favor of the alien. T he fee
which the chief received in token is a small sum, called “pago pago”
(boundary marker) among the Bataks; more commonly in Indonesia it
is colorlessly called “wang saksi” , that is, observers fee.
If a land transaction is put across behind the chief’s back, it has no
legal standing. It is not effective as against third parties; and the receiver,
if an alien, is not then recognized as a rightful claimant to the land. As
between the two parties to a land transaction the recipient who gets his
land without a chief’s certification runs a real risk. However, the passage
of time and the occurrence of all sorts of direct and collateral acts
of recognition may close the gap, and so a firm title can eventually be
established.
But, if the cooperation of the village chief has been sought and
refused, a land transaction completed in spite of the refusal can never
attain recognition in law.
3. The nature of transferable property. — Land is by far and away
the predominant object of cash transactions involving property. Less

frequently, fish ponds and other bodies of water are subject to individual
ownership. Trees may also be transferred for cash, as may be houses, if
they are sold or pledged together with a compound. Very rarely, stone
houses may be the object of a “ jual” transaction — but only if it is an
independent transaction. Finally, sale by means of a “jual” transaction
is the only possible way of disposing of objects which are strongly charged
with personal magic.
Other types of property, including bamboo houses and cattle, may
also be sold for cash, and what is more, they may be sold on credit as well.
In a credit sale the purchase price does not function symbolically as an
element of transfer in the adat law. It merely signifies the value of the
economic goods to be given in the exchange, now or later. This matter
of economic equivalents is handled in Chapter V.
4. Reasons for land transactions. — The urge to transfer land is
usually the need for money. The procedure is usually this. A native land
owner needs money which he cannot borrow directly, so he puts up his
cultivated land or residential compound as security for a loan. This is in
effect a promise to discharge the debt, if need be, through execution of
a “ jual” transaction with the land in question. When this has been done
the debt is extinguished; the creditor comes into possession of the land
instead of the cash. Thus among the Toba-Bataks actual debt extinction
is linguistically distinguished from the mere pawning of land. T he first
is called “ sindor” , the second, “ dondon” .
5. Part payments on land. — Adat law requires that all payments
involved in land transactions be paid in full at once. Community chiefs
require this as a condition of their participation in the rituals of transactions.
Anything other than this is most exceptional. I f due to bungling some
where along the line, a party feels he has not got his full money due, and
so gets a litigation under way, the adat law assumes as a starting point
that the whole sum was paid at the outset. The additional sum in question
is simply treated as though it were an ordinary cash loan made subsequent
to the transfer of the land.
6. When is the transfer completed ? — The right of a second party
to the land is obtained at the very instant in which the vendor declares
in the presence of a chief, “ I acknowledge transfer of this land, and I have
received the price therefore” . The right of the other party is then estab
lished, be it a lien, native right of possession, or the right of tenancy. I f
it is the first or the third of these, the adat law has a variety of means for
keeping the residual title of the pledgor fresh. The person who rented
out or pledged the land can have his right of redemption or the temporary
nature of the lien recognized at law. The rights of the pledgor and pledgee
are inheritable.
7. Deferred occupation. — Three conditions may bring about a
deferred occupation on the part of the pledgee, purchaser, or lessee. First,
it is possible to stipulate in a “jual” transaction, especially in Java, that the
right to occupy the land in question becomes operative only after the
expiration o f one or more years. At the expiration of the agreed time no
further action is necessary, for the recipient may enter at the time pre
viously agreed upon. This sort of agreement is called “ digangsur setahun”
or “rong tahun” , also has other names. In the second place, some person
other than the recipient of the land may enter to use the fields following
the completion of the transaction. He is usually on a sharecropping basis
with the recipient. And this sharecropper is most commonly the person
who has just given up his title to the land. The third situation is that in
which somebody usurps the right to the land by illegally occupying it.
This may even be the person who has just sold it, but who is slow to vacate.
8. Saksi. — Saksi are all those people who are present at the ritual
closing of a land transaction. Their numbers include the officiating chiefs,
owners of adjacent land, relatives of the owner of the piece to be trans
ferred, and mere witnesses. These persons and the word saksi should
not be carelessly identified by the simple word “ witness” . Saksi m ust in
each instance be defined according to the peculiar function of the person
concerned in the transaction.
9. Differences between the pledging and sale of land. — Pledging and
sale of land have much in common, but the fact that pledged land may
revert to its owner brings about important functional differences. An
outstanding illustration of this is found among the Bataks and elsewhere.
Land cannot be given in bride-price, for the simple reason that the
wife’s father or family can never come into native possession of land in
his son-in-law’s community. But it is possible to pledge land as a tem
porary bride-price payment. Later this can be redeemed on payment of
the proper bride-price. In other places, the community right of disposal
may bar the sale of land to outsiders but not prevent the pledging of such
lands.
In general, because of the possibility of recovering fields, which are
valued as family or inherited property, pledging is greatly preferred over
sale.
D. FORMS OF BILATERAL LAND TRANSACTIONS
We have thus far dealt with the common characteristics of the three
forms of land transaction. Now we may consider the specific elements
of each.
I. LAND PLEDGING
a. Terminology. — Van Vollenhoven consistently gave the term

“ grond (sawah) verpanding” to the land transaction in which the borrower
retains the right to recover his land upon payment of a sum equal to that
loaned him on the land. The literature of adat law also refers to this type
of transaction as sale with provision for repurchase” (verkoop m et beding
van wederinkoop). Obviously, this concept should be rejected and avoided
in a legal lexicon. In the first place it mistranslates the word “ menjual”
in the native phrase “menjual sende” . In this context, “menjual” means
“ to transfer , not to sell” . It is true that the total phrase “ menjual lepas”
means “ to sell” . But here, although “ menjual” still means “ to transfer” ,
“lepas” means “permanently loose from the native owner” . And “ to
transfer permanently loose from the native owner” means “ to sell” .
In the second place, to use the phrase “ sale with provision for re
purchase” is misleading because it implies that there has been a transfer
from native ownership when there has been a provision for repurchase
after a short time and it has not been utilized. In adat law there has been
no loss of native ownership in this situation.
Finally, the use of two different Dutch terms (“ verpanding” and

“ verkoop m et beding van wederinkoop”) for the same native transaction
implies that there are two different native conceptions of the transaction.
This is not the case.
T he use of the tern.- “pledging” has the advantage of placing the
transaction as a unique and peculiar one in contrast to the other two “ jual”
transactions. It has, however, two serious drawbacks. In the first place it
suggests a subordinate character to that land transaction, while in fact
the agreement is just as independent a legal act as sale or rental. Further
more, it suggests the existence of a money debt, and the consequent repay
ment of the debt as the source of the recovery of the pledged land. All of
this only creates confusion; the land is the object of the transaction, as
has been explained above; reversion of the land can be accomplished by
payment of the amount given, but this is not obligatory. In no event,
however, m ust more than one term be used for that agreement, and for
lack of a better word the term pledging of land had best be retained.
b. *The powers of the pledgee. — The pledgee can, after his lien has
been established in the presence of a chief, derive full profit from the
pledged land. He can till or live on it. He may cause it to be tilled or lived
upon. He may have it sharecropped, with the arrangement terminating
after each harvest. His use of the land is limited only by his obligation to
keep the possibility of redemption open for the pledgor. I f he does use
this land in a subsequent “jual” transaction, he must arrange for a sub
stitute pledging in case the pledgor wants to recover his land. This
possibility may also be resorted to in case the pledgee is short of money.
First, he may ask the pledgor to redeem the field in question. I f this
request is refused, the pledgee is barred from recovering the money he
has lent on the land. But he is then free to pledge the land to another
person, for as much or less as he first loaned on the land. If the first pledgor
redeems from him, he can pass the sum on to his creditor and so clear
the debt. It is also possible to substitute another person in his place as
the pledgee so that he drops out of the entire pawn relationship. But to
do this he must first inform the pledgor.
The pledgee has no legal power to demand the repayment of the sum
he has loaned the pledgor. Such a step would be utterly at variance with
the legal and social character of the pledging of land in the adat system.
I f it were possible to force a pledgor to pay back the borrowed sum, suppose
he did not have the cash, what then ? Suppose his fixed property were
to be attached and sold, so that the debt could be satisfied and the pledged
land released ? T he purpose of land pledging is to satisfy the pledgee’s
need for money by use of his arable land alone, and the conviction exists
that the risk should be limited solely to the land. He would be forced to
tu rn all of his possessions to the raising of money, except his land, which
would revert to him. There is no room for such a process in adat law.
c. Duration of land pledges. — In the simple pledging of land, in
the absence of limiting conditions, the right of redemption of pledged land
passes to the heir o f the original owner. In the same way, the obligation
of holding open the door to redemption passes on to heirs o f the pledgee.
Once in a while, however, the lapse of time impairs the right o f redem ption,
a subject separately considered in Chapter XI.
On the other hand, the direct stipulation of a time limit for redemption
is frequent in many law -areas. This is generally accompanied by a clause
to the effect that if the land has not been redeemed within the given
period, it automatically passes in native possession to the pledgee. In
practice the effect of that clause is that only when the time lim it lias been
passed, may the pledgee demand that the pawn relationship be term inated.
T his means that if the borrower fails to redeem, the lender may demand
that a second legal act — one of transfer of native possession to him —
shall be performed. Possibly, if the loan was less than the m arket value
o f the land, he may make an additional payment to the pledgor. I f the
parties cannot agree on this, the pledgee may bring the m atter before a
judge to obtain a decision that the pledged land is henceforth to be his
in native possession, possibly with the addition of a specific sum to change
the pledge into a sale.
Suppose the pledgee does not initiate redemption proceedings when
the fixed term of the pledge is up ? Then the pledge relationship continues,
with the borrower free to redeem his land at any time and the pledgee
free to terminate the relationship in the manner just described above.
d. Minimum limits for redemption. — A time limit of an entirely

different 1 ind may be put into a land pawning transaction. This is a
stipulation of a minimum period during which the pledgor may not redeem
his land, even if he will.
I f nothing at all was said about a minimum limit when the transaction
was m ade, then two rules are automatically operative. One, the pledgee
m ust be perm itted to obtain at least one full harvest before the pledgor
redeems. Tw o, redemption shall take place after the last harvest and
before the next planting. Any planting belongs to the person who put
it in the ground. Even if redemption is managed before the harvest is in,
the original owner of the land must permit the planter to have his harvest.
T h e explicit agreement of the pledge transaction, however, may
stipulate the num ber of seasons the lender may have undisturbed use
o f the land.
e. Upkeep o f pledged land. — Pledged land must be returned to its
pative possessor in as good a state as that in which it was received. Damage
resulting from bad faith must be compensated for. But there is no compen
sation for improvements or any increment in the value of the land. I f the
pledgee has planted perennial plants without the permission of the owner,
unless he removes them again, they pass in native possession to the pledgor
when the land is redeemed. In some places, however, as among the Bataks,
when the pledgor tacitly permits the planting of trees on pledged land, he
forfeits his right ever to redeem the land he has pledged.
f. Lump repayment. — Money borrowed on land must be repaid
in a lump sum. I f instalments are paid, they are no more than an entrusting
of the sums to the pledgee in advance of final redemption.
In various law-areas there is a form of transaction which is a modified
form of pledging (ngajual tutung in West Java; dondon susut among
the Mandailing). In essence it is the prepaid rental of land. But the natives
call it pledging, with the agreement that the loan shall be gradually worked
off by turning over a part of the produce of the land. Then when the
money advanced has been paid off, the field reverts to its owner.
g. Local variations. — The pledging of land is of common occur
rence in all law-areas of Indonesia. In each area it has its peculiar shadings
yd.Tnatmony with the local color given by the special legal system ot the
area.
To give some examples : in Atjeh the offer and acceptance formula
(ijaab kabul) is borrowed from Islam. Among the Bataks the transaction
m ust take place over hot rice and with designation of the boundaries of
the land in question (as is true of all their important agreements). In M inang-
kabau pledging of family land is permitted only to meet a family need
for money for fulfilment of adat requirements (marriage of a daughter,
funerals, elevation of a member to chiefship, repair of the adat house, etc.).
In some of these situations the family headman has the power to pledge
the la n d ; in others a unanimous declaration of a family conclave is called
for. Among these people the pledgee has to give the land-owner an annual
present o f rice in continuing acknowledgment of the owner’s right of
redem ption (pitungguh gadai). The Toba-Bataks accomplish the same
function by having the owner preside at the annual garden sacrifices. In
Bali it may be stipulated that if the field goes sterile, the loan advanced
on the land m ust be paid back. In Java the community right of disposal
lim its the power of the individual to pledge the land, and this is true in
other places. In Bantam the possibility of increasing the loan up to the
sale value o f the land is known as “ndalami gade.” T he practice is
recognized everywhere else, but under different names. In some places
there is a repeated imitation of the initial land transaction before the
village chief, in order to keep public recognition of the pledge relation
alive. In Minangkabau this is called “pitungguh gadai” .
2. THE SALE OF LAND
As has already been noted, the payment of the purchase price in the
presence o f the chief effects an immediate transfer of native possession.
a. Rights o f a bona fide purchaser. — Sales by persons who do not
have a true title to the land occur ?gain and again. T he common situation
is where the seller is merely a co-owner, or perhaps, an agent without
proper authority. The transfer may well be approved and aided by the
village chief under the impression that the seller is the rightful proprietor.
In that event, if the buyer was acting in good faith, his purchase is good,
and the law entitles him to the land in preference to the defrauded owner.
T he D utch courts in a recent decision, which seems to be sound and for
tunate, extended the principle to apply to the rights of a pledgee for the
term fixed in a pledge transaction. The true native possessor of the land
fraudulently sold is then in the position of having to buy back the land
himself, or else he must give it up. His subsequent recourse is to attem pt
recovery of the sum in question from the fraudulent seller.2
b. Public sale. — The public sale of land in execution of a judicial
decision is in violation of the principles of native law. There are no
provisions for it in the adat. This raises a crucial question as to what is
just, if a cultivated field is sold at a public sale for account of a false owner.
No precautions have been taken in the Dutch law to see to it that the public
sale is recognized in the native village legal systems. Consequently, even
though acting in good faith, a buyer at a public sale cannot obtain unas
sailable title to the land, which can be maintained against the true native
possessor. W hether the latter has the right to recover the land in question
depends on a num ber of factors tied up with the matter of time limitations
discussed on page 242.
c. Local variations. — Local peculiarities show up not only in pledge
practices but in sales of land, as well. According to an old dictum in former
days, the purchase price for land in Minangkabau had to include some
rice, a bowl, a plate, a pitcher, and a small mat. These symbolized the
magical equivalence of the buyer’s share in the land exchange. Today a
copper coin is added to the full payment in order to serve this end. Else
where, a knife or a piece of cloth do the same thing. Other examples of
local formalities and means of safeguarding the purchaser s rights are the
Minangkabau usage of placing stones at the corners of the land (tanam
batu), the application of a deep plus sign (-{-) inRejang, and the fixing of
stakes (tunggaq biuto) at the four corners of a Batak field.
a Landraad Tasikmalaja of Nov. 18, I935> aff'd Raad Batavia o f Ju ly 24»

i 936, 148 Tijdschrift 378.
3. PREPAID RENTAL OF LAND
T he usual form of rental among the Javanese is the prepaid lease

(adol taunan, oyodan, trowongan, etc). Outside of Java it is rare. Or when
it does occur, it is known as a sort of pledge (the dondon susut discussed
on p. 123). The annual imitation of the land transaction (the pitungguh
gadai, described on page 124) which occurs in Minangkabau has its
Javanese parallel in the occasional practice of the tenant presenting the
landlord with a little present of a chicken or some fruit four times a year
as a token payment. Serial renting (pindah sewa) is also known in Java.
T he duration of the lease in this form is dependent on the quantity of
produce obtained in each season.
E. THE ALLOCATION OF LAND AS INDEPENDENT PROPERTY
T his should just be xiientioned at this point. It will receive full treat
m ent in Chapter VI.
F. LAND GIFTS
T he giving of land to aliens is reported particularly from Celebes.

In this instance it passes from native possession immediately, and the
alienation is complete. Land gifts to a prince, as in Bolaang Mongondow,
or to chiefs in Minahasa, are (or were) made to obtain a favor, or to meet
a fine, or as compensation for judicial services. Among the Minahasans
and in South Celebes, an arable field is given as a sign of adoption, as
bride-price, and the like. Lands alienated in this wise sometimes have
names which indicate this nature, such as “ tanah pei pamoya” , land given
as bride-price (Minahasan). In addition to the outright gifts, there is also
the temporary pledging of land to the in-laws in provisional paym ent
of an adat obligation in dowry and bride-price (called sunrang sanra in
South Celebes). Among the Bataks and in South Celebes, the final payment
of the wedding monies redeems the land. The numerous kinds of land
gifts from the wife’s father and family to the newly married couple (called
bangunan, pauseang, indahan, arian, and so forth) have the character of
an assignment by partition of a part of the family property by the father
to his daughter — and son-in-law (see page 222). In the southern Batak
territories, incidentally, such gifts rarely consist of land.
G. THE ASSIGNMENT OF LAND BY PARTITION
T he assignment of land by partition, which is general throughout

Indonesia, ought to be mentioned in this treatment of land transactions,
but discussion of it is reserved for Chapter X. In a certain sense, assignment
"by partition is the antithesis of land transfer, insofar as it is in principle
just a shift of usufruct within the lineage and not an alienation to outsiders.
But in some aspects an assignment by partition can work to the benefit
of non-relatives, notably spouses.
H. THE DOCUMENTATION OF LAND TRANSACTIONS
As a land transaction is completed in the presence o f a chief, a formal

document is drawn up. In some law-areasthe form isalways the same,
and in m ost o f the law-areas it is usually the same. I t consistsof a unilateral
declaration of the person who is transferring the land. I t re a d s: “ I, the
undersigned, declare that I transfer (menjual) my arable land, called as
follows ------------, bounded as follow s----------- ; he who is the recipient
of this land is c a lle d ----------- , in return for a sum of money o f ----------- >
which x have received in fu ll; our agreement is that the land shall remain
permanently in the possession of the receiver; of that the land may be
recaptured by me for the same am ount; or, that the land shall revert to
me after ------------ years.”
You do not always find the real character of the legal act described
by being split into two parts in the manner just indicated. Sometimes
the document may directly declare: “ I, the undersigned, declare that
I am pledging ----------- .”
The document is signed by the person who is transferring the land.
“ Signed” may mean an actual signature scrawled under the record in
one script or another by the transferer, or it can be a cross, which he puts
after his name, written by someone else, or an imprint of his thum b-tip
in red ink. T he headman of the community in which the land is situated,
and any other village officials who happen to be present, and sometimes
members of the transferer’s lineage, and also owners of adjacent lands,

and possibly, persons present as witnesses affix their signatures and marks.
In other words, any one who is there.
T he document is then delivered to the recipient of the land, be he
purchaser, pledgee, rentor or beneficiary of a gift. Armed with this
document, he can prove to everyone the legitimacy of his new personal
relation to the plot. I t is especially useful to show to outsiders, and more
particularly, later on, to a professional judge. He is thus able to prove
that his title to the land has a claim to legal protection, because he took
pains to see that the legal act which established his title was “ terang” —
“ took place in the light of day” . The document is therefore written evidence
(surat katerangan).
Undoubtedly the document in its operation between the two parties
also has its functional place in the participant thinking of the population.
But what that place is has still to be worked out. Conjectures that the
document serves as a visible token in the sense of a binder, or as a means
to transfer the relationship to the land in a materialized form, as it were,
are rather Western conceptions that seem to lack essential contact with the
content and context of the act itself. If the document may be compared
to an original native institution, it may be said to be a rem inder or
recognition token (therefore evidence) like tree notches among the Rejang
and the stone markers of Minangkabau.
T he function of the signing of the document by the chief is easier
to understand in native thought. He tangibly obligates himself henceforth
to recognize the new relationship as a legal relationship.
I. LAND TRANSACTIONS WITH OUTSIDERS
T he founding of villages at the command of princes, as a means of
establishing a new sphere of authority, or as a favor obtained from the
prince, is well enough known, especially, in Java and Bali. Such villages
commonly have a special legal status (see page 80). Reclamation of arable
fields outside the established boundaries of pre-existing communities
is subject solely to the provisions of the princely legal systems, or that
of the Dutch administration (page 114).
In areas where the local autonomous communities do not exist (where

individual rights to land are directly dominated by the legal system of
the prince or the Government) any two-party land transactions are subject
to possible regulations by legislation. But any such regulations m ust be
in actual harmony with the adat law described above. M ost of the persons
who are operating in the area of no-man’s land maintain their link to the
community from which they hail. They return to their com m unity; they
have their family ties and interests there. This is the fact that adminis
trative regulation should not overlook.
T o the extent that no formal regulations have been promulgated
in a given extra-community area, we can assert in confidence that the
going practices of land customs and usages coincide with those of the
community from which the tillers come, so that the decisions of the
prince’s judges and Dutch judges ought to produce rules for the area that
are similar to those which are already valid in the native sphere.
However, the universal question arises : “ What replaces the role
of the chiefs in land dealings outside of the community domain ?” Regis
tration at the office of an administrator in the Princedoms, or w'ith the
princely officials in Bali, are excellent examples of a good substitute for
that missing feature. Unfortunately, there is no such provision in directly
governed territories, or in the large towns where the village chiefs have
disappeared, or for the groups living outside the regular native communities
(the priyayi).
T he surrender of native rights to land to the Government in order to
convert arable lands into the “free national domain” suitable for reissuance
to non-natives is a unilateral act, which is a part of the legal system of the
Government and outside of the adat. This subdivision of “ agrarian law”
is in urgent need of revision.
CHAPTER IV
O B L IG A T IO N S IN V O L V IN G L A N D
AND TRANSACTIONS, such as were discussed in the previous chap

L ters, actually involve the transfer of land. They contain the central
thought “ I release this land to you in return for a sum of money. You
are the person entitled to the land for the period of our agreement, or for
all time, as the case may be” .
In this chapter we treat a different sort of agreement, one that in
cludes transactions involving land use, but one in which land is not the
central object of concern (as in the case of “ jual” transactions). Beyond
this, there is also another type of agreement to be contrasted with “ jual*’
transactions. This is the kind in which no land is involved, or cash, either.
It is a form of credit transaction, to be treated in Chapter V.
A. SHARECROPPING
1. General characteristics. — Sharecropping is native custom in all

law-areas. It involves land use, but is not a land transaction in the technical
sense of adat law. T he legal basis and function of sharecropping are in
no respect to be compared to “ jual” transactions in land. T he motive
underlying the sharecropping agreement is, “ I have a field and I don’t
want to use it, or I am not able to do so. I do want to get something out
of it, however. Therefore, I shall agree with someone else that he may do
the work, plant, harvest and turn over part of the product to m e” . The
basis o f the “ jual” transaction, on the other hand, is, “ I have a field,
which I shall use to raise some money. For the time being, I want money
more than land” .
T he function of the sharecropping agreement is for the owner to
make his land productive without effort on his part and for the cropper to
make his work energy productive without the ownership of land. The
13 0
OBLIGATIONS INVOLVING LAND 131
function of the “ jual” transaction is to turn the ownership o f land to the

satisfaction o f any possible desires that can be m et with cash, and to make
possible the productivity of money capital by applying it to land use.
T he difference between the actual land transaction and a sharecrop
ping agreement can best be made clear, if we do not talk o f the giving of
land in sharecropping in the same breath with sale, pawning and prepaid
rental. Instead, we should limit sharecropping as a transaction in which
the possessor of the land admits someone else to his lield to work it, plant
it and harvest it.
Various distinct traits are linked to the sharecropping agreement.
In the first place, the cooperation of the chiefs is never necessary to give
legal validity to the undertaking. There is no transfer of possession
involved — hence, no need to make it “ terang” (done in the light of day).
In addition, a written memorandum of the agreement is rarely drawn up.
More im portant still, every sharecropping agreement endures only for
one harvest year (from planting time to harvest), unless a longer period
is stated for special reasons. Finally, whoever holds the title of the moment
(the native possessor, pledgee, lessee, a family member holding family
land, the community official with usufruct of official land) may put his
fields under sharecrop. In so doing, he is not disposing of the land, for
this is beyond his power ; he is merely taking a step which in principle
is always perm itted : putting the land into production. Thus there never
arises any question of the operation of the right of disposal in connection
with sharecropping. Aliens, if they have been admitted to the territory
o f the community, may be sharecroppers, because they do not establish
any personal title to the land.
Instead of having a relation to land transactions, the tie-in of share-
cropping is to the wage-earning relation. It differs from the wage-labor
arrangement, however, in this wise : the land holder does not concern
himself about the working of the land when a sharecropping agreement
has been made. The entire responsibility of cultivation is left to the
sharecropper. The landlord does no more than to provide the seed paddy
and draught cattle for plowing, if that has been agreed upon. He gets his
recompense in a third, half, or other portion of the sharecropper’s harvest.
i
Whereas, in the hired-hand arrangement, he supervises each step in the

gardening, gets all of the harvest, and pays the worker in some form
of wages.
The sharecropping agreement, therefore, consists in the admission
of someone else to an arable field over which you exercise rights, with
the understanding that that person (the sharecropper) is to grow crops
thereon and shall turn a portion of the harvest over to you. M ore detailed
arrangements as to the supply of seed paddy and draught cattle, the exact
share due the landlord, etc., go to make the arrangement more precise.1
2. Extent of sharecropper relations. — The notion that the individual,
who tills another person’s land, must turn over half the crop to the land
lord is a general principle of adat law, which is not limited to formal land
agreements. I t also applies in the case of unauthorized occupation o f land.
It operates not only in the case of fields, which have to be planted, but
it can also apply to the maintenance of perennial gardens. I t has its parallel,
as well, in fishing and cattle-breeding.
3. Srama and plais. — Two ancillary institutions are connected
with sharecropping. The first, called “ srama” or “ mesi” , occurs especially
in Central Java. It is the payment of a small sum of money at the beginning
of the agreement. I t has the significance of a gift that goes along with a
request for favor.2 Or it may be looked upon as a token of an acknowl
edgment that the giver is on the recipient’s land.3
The second institution grows out of a tie-up between the loan of
money and sharecropping. The landlord borrows money without interest.
T he lender becomes his sharecropper. His right to sharecrop the debtor’s
field lasts until the debt is paid.4 Or better yet, if at any tim e, he should
be barred from planting, the debt is immediately collectible, or “ plais”
(on Bali). It is sometimes agreed that the share retained by the land-
1 Various native terms for the sharecropping agreement are : “ memperduai’ ,

(M inangkabau ) ; “ tojo” (Minahasa ) ; “ tesang” (South C elebes); “ maro” , fifty -
fifty, or “ mertelu” , one to two (Central Ja v a ); “ nengah” , fifty -fifty , and
“ jejuron” one-to-two (Preanger).
2 It is the request that is the actual “ srama” .
3 T h is is the “ mesi” .
4 T h is practice is called “ balango” in South Celebes.
working creditor reduces the debt by a fixed amount each season. O ther
wise, the debt stands until paid off in a lump sum.
4. Breach of contract. — If a landlord bars a sharecropper from the
land, the cropper may have a claim for damages. But he cannot, like the
person who obtained his rights by “ jual” , demand the land itself.
B. SEWA
This is a strange anomaly in most law-areas : the plan of land lease

with deferred rent. The word “ sewa” carries a connotation of a deal with
outsiders.5
T he leasing of land by commercial enterprises, mostly sugar plan
tations, is especially indicated by the word “ sewa” or “ nyewa” . But if
the rental in these cases is paid in advance to cover a long-term lease, the
arrangement is closer to the “adol taunan” (see p. 126) than to “ sewa” .
And, when referring to leasing between natives, it is customary to call it
“ adol taunan” — not “ sewa” .
T he leasing of official fields in Java is always set up as a lease subject
to term ination at the end of a year. Money paid in advance to a chief
(chiefs are usually hard up) is simply put down as advance payment.
This is subject to a refund demand, if the chief is dismissed from his
office and so becomes incompetent to turn the usufruct over to the lessee.
The leasing out of residential compounds is not a native custom.
It has come into some vogue, however, and can appropriately be called
“ sewa” .
As a special agreement, therefore, “ sewa” is to be defined as the
admission of a second party to a piece of land (for tilling or residence)
to which the first party is entided ; in return, a fixed rental is paid, payable
monthly, annually, or after each harvest. As in the case in sharecropping,
the arrangement is subject to termination after each payment.
s In South Sumatra it appears as “ sewa-bumi” , the compensation paid by

aliens for use o f a part o f the area of disposal. Its equivalent in Borneo, “ chukai” ,
covers the payment made by an outsider, who obtains rights in the area of dis
posal, and to rentals paid by lessees. Th e fee paid an Ambonese com munity by
aliens for gathering rights in its area of disposal is called “ sewa-ewang” , or some
such names.
Thus this form of transaction differs from true land transfers, as

does sharecropping.
C. THE ASSOCIATION OF SHARECROPPING AND SEWA

WITH PLEDGING AND PREPAID LAND RENTAL
I f frequently happens that immediately on getting a right to use

some land as a pledge on a loan, a person agrees to re-establish the pledgee
on his land as a sharecropper or lessee. This gives a special turn to share-
cropping and “ sewa” .
While such an arrangement is in force, the pledgee may not execute
a jual ’ transaction with the land he holds in pledge. Nor may he make
a prepaid rental agreement, because this would temporarily block the
right of redemption. He can only arrange for a second pledging. But he
may, in fact, arrange for other persons to use the land on the basis of an
annual or monthly agreement.
I f the pledgee undertakes to admit the pledgor to the pledged land,
this series of acts fulfills a unique economic function in the social life
of the people. To w it: the man, who pledges his arable field in order to
get money, has his labor power, but no land; now he is enabled to apply
that power and make it productive on the land, which has temporarily
passed into the control of the pledgee.
So also, in the pledging of residential compounds, the need for
living-quarters, which has been created in the giving up of the compound
by the pledgor, is balanced by leasing it back to him.
Alongside of all this is the social and sentimental function of enabling
the owner, who is attached to his land, to continue working or living on
his beloved soil. And this is perhaps of even greater importance.
T he legal consequences of the combined sharecropping and <4sewa”
relation are clear, according to adat principles. The relation may be ter
m inated on short notice. A right to damages may be present, in the case
of breach of the agreement by any of the parties; but there can be no
claim as against the land. The pledge relation can be terminated only in
the way described in Chapter III, page 122.
Superficially, there is a resemblance between a money transaction
in which land is pledged as security and combined land-pledging and

sharecropping or pledging of compounds and lease. But according to
adat law these are two entirely different legal institutions.
D. THE PLEDGING OF LAND AS SECURITY
The pledging of land as security is a secondary agreement to the

main one of money loan. It seems to have something of a preparatory
nature in it. T hat is, it makes way for the transfer of land by assigning
an arable field with which the debt will be extinguished and the contract
concluded, if need be; it thereby substitutes the land transaction for the
money debt (page 118).
In some law-areas (Bali and the Batak lands), the pledged field passes
to the lender of the money, or has to be turned over to him in pledge as
soon as the interest due has reached a certain sum. Also, in Java, pledging
as a legal transaction often follows the giving of security.
T he nature of the security pledge may be said to be, “ So long as
this debt stands, I bind myself not to execute any transaction with the
assigned arable field, except on behalf of my creditor” . 6
1. Giving of security by private agreement. — In Java, at any rate,
this transaction is frequently accomplished without knowledge of the
village chief, or any other chief. In this event, it cannot in any wise be
effective against third parties. The most important consequence of this
is that any jual transactions executed with secretly pledged land are
legally valid, even though the debt has not been paid off. The second
result is that a pledged arable field may be put up for other debts, too,
and the first creditor has no priority over others.
This does not rob the security transaction of all value, as is sometimes
claimed. Fortunately, the fulfilment of the obligations entailed in security
transactions depends on other motives than the urge to get out of a legal
action without loss. The losses to be encountered in social conflict would
be as great as the gain in defaulting. Reliance must rest on this, because
0 Special native names for this transaction exist everywhere. Some o f them
are: “ tahan” (Batak), “ barbaring” (Ngaju Dyak), “ makantah” (Bali), “ tang-
gungan” and “ jonggolan” (Java). Also, the terms “ borreh” , “ borg” , and “ borrot” ,
corrupted from the Dutch “ borgen” , to borrow, are widespread.
there can be no formulation of a rule of law for protection against third

parties on behalf of a secret lender on security.
2. Officially witnessed security transactions. — I f the agreement is
closed, with the knowledge of the village chief,7 then the native possessor
cannot alienate the land, or make a secondary pledge with it, unless he
turns the produce of the land over to the first creditor. I f the debtor
neglects to inform the creditor of any further transactions with the
pledged field, it is up to the chief to do so. I f he fails to do so, the m atter
is bungled, and the creditor has a claim for protection at law. In such
cases the social factors are naturally even stronger than in the non-publicly
attested transactions. In the “ tahan” contract of the Bataks and the
Balinese “makantah” , if any profit accrues from the land, the priority
of the creditor covered by the land designated as security is recognized.
In Java, unlike Bali, the village chief is not always pulled into the
drawing up and witnessing of a security contract. But how does it work
in those cases where he is ? There are decisions and authors whose opinions
are that there is no priority vested in the creditor in such cases, for the
reason that registration of the agreement with the village chief has not
become an established institution of legal force in Java. However, there
are contrary decisions and authors who hold that notification of the village
chief and registration of the agreement by him entails a preference for the
creditor, which can be sustained at law, if the registration was voluntarily
undertaken by both parties. A legislative proposal to this effect has been
recently in preparation, but nothing has come of it as yet.
I t may be noted in this respect that the statutory possibility o f credit
unions, a regulation of mortgages running along Western lines, is o f im por
tance only for debts of the National Credit Bank and a few other institutions
(Cf. Staatsblad, 1908, No. 542).
3. Adat distinctions between sharecropping based on land-pledging and
loans on land security.— Externally, it looks very much the same, if a
person pawns his land and is then permitted to keep on working it as a
sharecropper or lessee, and if a person puts up his land as security on aD
interest-bearing loan, in which case, he naturally retains the use of his
7 T h is is always the case among the Bataks and in Bali.
field. T he social effect of the two practices turns out to be pretty much
the same thing. But the single fact that pawn involves a “ jual” transac
tion, and a loan or security does not, produces a num ber of im portant
legal differences in the adat.
a. Land-pledging always requires the cooperation of a chief; loan on
security may or may not.
b. Dem and repayment of money given on pledged land is never per
mitted; a loan secured by land is subject to demand.
c. A pledgee may arrange a re-pledging of the land he has received;
a holder of land received in security can do nothing with the land.
d. T he pledgee, in the event of breach, when a time-limit for redemp
tion has been fixed in a pledging agreement of the land, can acquire native
possession of the land; the creditor in a simple loan on security can demand
the money only.
e. In case of default of rent or the pledgee’s share of the crop due
him from the pledgor, the pledgee can eject the pledgor from his sharecrop-
p e i’s or lessee’s rights; in case of default of interest on a loan secured by
land, the creditor can ordinarily demand only the return of the principal.
f. I f the land is destroyed by flood, or other natural catastrophe, the
holder of land in pledge finds his claim on the debt owed him by the borrower
is extinguished; but in a straight loan involving land as security, the creditor s
claim continues unimpaired. In Bali, in fact, it is expressly stipulated that
the pledge is collectible immediately upon destruction of the fields. This
appears to imply that when there is no such stipulation, the contrary
is the case.
It is to be understood, of course, that these points of difference come
into play only after it has been determined which type of transaction is bemg
dealt with.
E. FICTIONAL TRANSACTIONS
1. On lands.—Another practice, which is constantly confused with

the true land transfer, is the custom of obscuring the real nature of a money
deal. Money is lent sub rosa3 and a land sale, pledge or lease with prepaid
rental is made public and then followed immediately with a sharecropping
or “ sewa” arrangement. There are two origins for this action. T he first is
the Islamic objection to usury. A person, who wants to put idle money to
work, gets around this by faking a land transaction, when he is really
making a cash loan. I t is in fact hard to determine whether he is doing one
or the other. The second condition from which the practice rises is the
situation in which a borrower asks for a loan and the capitalist is unwilling
to lend money for religious reasons, but is not averse to a land transfer
with a sharecropping agreement. This is in itself nothing but a land transac
tion. But if the moneyed man replied, “ Very well, I will lend you 1000
florins at 10%, but let us shape a document to clothe this loan in the guise
of a sale with a subsequent lease, because I wish to maintain the public
impression that I respect the Islamic prohibition against interest-taking” ,
then we have the two agreements together—and a form o f simulation.
In such a business, it seems to me, a judge must hold the actual agree
m ent to be valid and not permit himself to become party to quasi-piety.
This problem arises only insofar as third parties may raise a claim based
on the public aspect of the agreement.
2. As security. Another practice which leads to a form of simu
lation is the desire to supply the money-lender with a document, which
gives him precedence over other creditors in the case of non-payment of
the debt, and priority over other persons, who may get a title to the land.
T his is a contractual attempt to cover the absence of a security defensible
against third parties. The case is one of an outright loan, which is clothed
as a land sale or pledging, because the creditor demands a hold on the
property of the debtor, which is capable of being legally asserted in event
of default. These fictions are usually identifiable by the amount of return
to the creditor, where the sum corresponds to what is usual for interest
and not for rent. Another test is the apparent lack of desire to actually
occupy the land on the part of the “ buyer” .
Such double agreements are easily extorted by money lenders, because
a hard-up borrower is apt to be rash and pliable.
In my opinion, a judge ought never uphold a fictitious sale, because
the money lender has brought the debtor under his power in an irregular
manner. However, if the fictitious arrangement is actually a pledging
agreement, the judge, by allowing its validity, can reconcile the interests
of all parties involved in the transaction and the interests o f third parties,
too. Then be m ust limit all legal consequences to those which go with
the giving of security as a land transaction, and he m ust recognize only
the legal consequences regularly growing out of leases or sharecropping.
T he clear delimitation of these institutions in legal decisions is a prim e
requisite of legal certainty.
F. CO-RESIDENTS AND RESIDENTS 8
A common type of agreement, similar in nature to sharecropping

and “ sewa” , occurs when a native possessor, who lives in his own dwelling
in his own compound, permits another person to have a house in the same
compound and to live in it. This is the adn ission of another person as a
co-resident.
Admission of another person to residence in a compound, which
you own but do not occupy, is even more definitely a rental arrangement
(sewa). However, the rent is not rendered in cash, but in assistance and
services.
Admittance of co-residents and outsiders is subject to termination at
the will of the compound owner. But if the outsider has given no specific
cause for ejection, he gets an indemnity (tukon tali in Javanese) for the
costs o f his moving.
G. PERMISSION FOR THE FREE USE OF LAND
There are two reasons for giving persons access to land when they
have no formal right to it. In the first place, a man who is going a Ara y for
a while wants his arable land preserved for him, and so he gives permission
to a relative or some fellow-villager to work it. In the second place, a family
group, or groups of heirs, usually entrusts the working of the fields of
the indivisible estate to members of their group. We ca’led the relation
o f the tiller to the land in this set-up, the right of utilization. (See above,
p. 107.) But it is perhaps more accurate in this context to call it free use
of someone else’s land with the possibility of ejection whenever the
8 “ Indung” , “ lindung” , "magersari” (Javanese); “ numpang” (Malayan).
native possessor wants it. Yet in the relation of a family-group holder of

land to a member of his group, who is working the land, this is definitely
an over-statement. Adat law protects the worker of the field from possible
arbitrariness.
Non-communal areas. — Outside the communal areas in the princely
cities and big coastal towns, the admittance of outsiders to residence in
a compound, either with or without the presence of the owner, is very
common. On page ninety-nine we mentioned this as one of the forms
which the right to land can take, so as not outwardly, at least, to violate
the royal right of domain.
T he so-called “ Batavian land lease” belongs in this category. A par
ticular right to land grew out of it as a result of legal measures taken for
the protection of persons living on the land.9
Among Indonesians the ordinary leasing of houses is really customary
only in large cities. Here, even more than elsewhere, the sale and pledging
of residential compounds, followed by lease to the seller or pledgee, is
a subterfuge for money loans with security.
9 Staatsblad, 19 18 , N o . 287.
CHAPTER V
O B L IG A T IO N S
A. RIGHTS IN HOUSES, CROPS, CATTLE AND MATERIAL GOODS
T N T H E M A TT ER of land rights the community takes precedence

“ôver individuals, whereas with respect to the subject m atter of this
chapter, an individual right of possession takes precedence over community
rights, except in unusual situations. In some Dyak tribes, such as the
M aanjan-siung, “ pusaka” goods may not be inherited by members who
have taken up residence outside of the tribal territory, nor may it be taken
along when a member removes to alien ground. In the village republic
of Tnganan Pagringsingan, in Bali, it appears that all possessions of villageis
(cattle, chickens, household goods, etc.) are subject to a village priority.
And in many other villages of Bali, the community may demand cattle
and all sorts of objects without offering indemnity.
T he native right of possession to houses and crops is separate in
principle from the rights to the land on which the house or crops stand.
A person can be the native possessor of trees and houses on another man s
compound. Individuals, who plant trees on the land belonging as a com
mon estate to a group of which they are but members, become the native
possessors of those trees. This is frequently done in Ambon. T he special
native terminology covering the right to have a house on the residential
compound of someone else, when the compound is alreadj7 occupied by
the owner (and subject to termination at vs ill by the owner), has already
been noted. (See p. 125.) “ Numpang”, in native usage, means
that the person to whom it applies has nothing to do with the land itself,
even though he may have a house on it. It means that fruit trees may be
sold or pledged independently of the land on which they stand.
However, this basic distinction between land rights and house and
crop rights is subject to some limitations.
141
In the first place, when transferring a residential compound, houses

and trees on the compound usually go with it. They are consequently the
subject of a “ jual” transaction. But alongside of this arrangement, it is
possible to treat the trees and house as separate from the compound, just
as chattels are sold. In such a case, it usually ends up by removal of the
house from the land. Thus, in the Javanese princedoms, “ adol ^ e ^ e g i* *
applies to the sale of a house with the intent of the buyer to inhabit it
where it stands, while “ adol bedol” applies to a sale with intention to
move the house.
In the second place, it sometimes happens that the right to trees
and houses includes a right to the land. The outstanding example is as
follows : when a group member tills a field and plants fruit trees on it,
he usually loses his possession of the land when he abandDns the field.
But this is not true of his trees. And in some law-areas he holds continuing
possession of as much ground as is shaded by each of his trees. It follows
that when the trees are so close together that nothing else can grow there,
the title to the land in native possession stays with the owner of the grove.
Related to this principle is the loss of the right of redemption of pledged
land in the case of the pledgor who lets the pledgee plant trees on this land.
(See p. 123.)
Furthermore, unlike bamboo and wooden houses, a stone house
cannot be moved. Therefore, the right to a stone house cannot be disas
sociated from the right to the land on which it stands. For this reason,
the legal principles applying to residential compounds necessarily apply
to stone houses and their appurtenant lands. There may be moot questions
as to when a house is a stone house and when it is not, as to the exten
siveness of the land that belongs with the house; but the fundamental
principle remains unaltered.
A peculiar practice concerning the relation between the right to a
house and trees and land rights has already been mentioned in another
context. This is the custom that exists in the princes’ areas, whereby
people keep on calling a piece of land the prince’s in right and theory
(kagungan dalem in Java) but actually manage to recognize an individual’s
rights to the land in question by calling them “house and vegetation
OBLIGATIONS 14 3
rights” . T he previously mentioned term (ngedol ngebregi) for selling a

house w ith the right to inhabit a residential compound also ties in here.
And when the state intervenes with the imposition o f limitations in such
situations, it does so on the basis of the prince’s personal right to the
land, but in fact the action is based on the governmental power o f the
prince. (See p. 83).
T h e idea that a planter of trees, which have matured, is legally the
native possessor o f them also leads to other legal notions concerning the
cultivation o f paddy, or like products, on someone else’s ground. An
illegal planting has to be surrendered in part to the true possessor of the
land. Unlawful occupation in good faith is acknowledged by permitting
the planter to keep a good share of the harvest (usually half) for his trouble
and expenses. When the occupation was done in bad faith, the first object
is to see to it that the owner of the field suffers no damage, but at the same
time it is recognized that he does not need to be enriched out of
proportion to the injury done him. A further conception would be that,
in adat law, a lawful planter, who has been admitted by agreement to the
use of someone else’s land, e.g., a sharecropper, can be regarded as the
native possessor of his harvest, part of which he is obliged to turn over
to the land holder. The rule in Tnganan to the effect that when a field
with green paddy under cultivation reverts to the village, the village
gets the harvest when it is ready is in line with this principle.
Ownership of cattle is sometimes limited by special rules concerning
slaughtering and alienation. But these limitations are hardly so great as
to keep us from calling the ownership of cattle a matter of native pos
session.
In the Batak lands, and in some other regions, joint-ownership of
cattle frequently results frcm profit-sharing. In this case, a person may
be the native possessor of one-fourth of a buffalo.
T he possession of ships, such as family ownership of proas in South
Celebes, does not give rise to any special points of interest in adat law .1
1 However, by a specific interpretation o f article I o f Staatsblad, I 933 j N o 4 9 j
it is possible that the duty o f registration entailed in Staatsblad, I 933 j N o . 48,
can be applied to natives and this application o f European law can lead to great
difficulties.
144 ADAT LAW IN INDONEISA
Something has already been said on page 118 concerning objects

which can be transferred only by means of a “jual” transaction because
of their magical relation to their native possessor. The direct person to
person sale of ordinary objects involves nothing special. T he term
“ menjual” customarily applies to this, too, and it always means “ to sell
for cash” . It never means pledging or rendng.
The pledging of chattels (mengankan in M alay; nyekelake in Javanese)
is accomplished by simply handing them over. Pledged goods must be
kept a long time before the creditor may dispose of them or acquire title
in himself. If the pledged goods are used, no interest is paid. But if they
are merely held without use, interest is usually due on the loan.
There is no possibility in this connection of dividing houses, crops,
etc., into categories of movables and immovables. Such concepts come
from a different legal system, and to inject them into the problem of
whether or not the right to land should be separated from the right to
crops would be confusing. I f it becomes necessary to distinguish between
movable and immovable property, as for example, in the provisions of
the Government Native Regulation on attachment, then, if the property
is held under native possession, a problem of conflict in legislative and
adat law arises. In such a case, the correct solution would be to declare
the land as immovable, as against cattle and small objects as movable.
Such things as wooden houses, bamboo houses, fruit trees, paddy standing
in the field, etc., seem to fall in between them. Which of the two alter
native categories these intermediary objects should go into depends upon
the interpretation placed on the legal provision in question. This need
not be the same for each article in each instance. There just is no sense
in putting such a question as, “ Is a coconut tree movable or immovable
property in adat law ?” and then demanding a generalized answer to it.
T he designer’s copyright of ornamental designs on boats among
the Kei Islandeis is ancient native law. But designer’s copyrights in
sarong patterns among the Minangkabau appears to be modern.
B. CREDIT TRANSACTIONS, MUTUAL AID AND RECIPROCITY
1. Credit transactions.— While the central notion underlying a

OBLIGATIONS 145
cash transaction is, “ I can let go of something that belongs to me, only
if I simultaneously obtain its magical or economic equivalent, and in
accordance with adat law” , the central notion of the credit transaction is
quite something else. In this, the central thought runs, “ 1 give somebody
something, or I work for him. For this I am to get a return in services at
the proper time. And then—if explicitly agreed in the transaction, he
gets an expectation of a return service from me, upon demand by him
at the suitable tim e” .
Such transactions are a subdivision of group or individual intercourse,
which strains toward equilibrium. An over-balance accrues to the advan
tage of the person who gives more than he receives. Therefore, giving more
than you receive comes to be a desire, a duty, or even an act of preservation
of your own respectability. One might even say, of your self-preservation,
because it precludes putting you in a pawning relation.
There is no reason to put the origin of the notion of cash transactions
earlier or later than that of the credit transaction. Both are fundamental
primitive forms, which are found at the very base of Indonesian legal
developments.
This giving, receiving, and counter-giving has an intra-community
and an extra-community aspect—just as land transactions in law. Fellow
members aid each other reciprocally. And groups, particularly kin groups
and exogamous sub-clans, are in a regular exchange of goods, which is
linked to the exchange of women.
2. M utual cooperation.—Collective action for a community purpose
is different than reciprocal assistance rendered between fellow villagers.
T he duty of joining in cooperative communal ventures depends directly
on adat, not on any matter of having received a service, which is to be
returned, or on expectancy of service in return for what you have done.
The line of delineation is vague, but the type is easy to recognize.
I f a community house has to be built, for example, or a community
cemetery laid out, the male villagers, who are available for work, put in
the needed labor and provide the required materials. I f the chief directs
the villagers in the cooperative clearing and reclamation of a woodland
tract, and it is subsequently subdivided into arable fields individually
held, this is mutual cooperation. But if individual fields have been laid
out first, and the people help each other in the work of reclamation, this
is re», iprocal assistance.
I f the chiefs are helped by the entire community in the cultivation
of their official fields, or in the repair of their dwellings, this can be seen
as mutual cooperation for the benefit of their community administrator.
I t may also be conceived of as service rendered the chief in exchange for
his efforts on behalf of the community. In a few locales the rendering of
service to the headman is to be noted as a distinct type of institution, such
as the “panchen” in Java, the “resayo” in Minangkabau, and “ kwarto”
in the Ambon Islands.
In Java, and elsewhere, mutual cooperation survives as the desa
services. Where it does so, it is usually distinguished from services to the
chief by calling it by the same terms as apply to reciprocal aid.
3. Group exchange of goods.—The exchange of bride-price goods
and gifts on important occasions sometimes follows a traditional course,
so that the goods pass from sub-clan to sub-clan in one direction, in the
same way as women in asymetrical marriage. There is still a good deal
of this among the Bataks and the peoples of the eastern part of the ar
chipelago (see pp. 92-95), although this fact has only recently come to
light.
The so-called “festivals” of the Indies, the adat ceremonies, especially
puberty rites, have gift-exchanges, receiving, entertaining and spending,
as their essential elements. The functional effect of this interaction in
social control and the maintenance of rules of conduct cannot be over
estimated. Far too litde specific research has been devoted to the effect of
withholdng invitations to a ceremony, or refusal to come to a feast, when
differences over mutual conduct are in question.
4. Reciprocal aid.—Reciprocal aid within the village, regional
community and kin group, as well as exchange of services and goods
between family and family, occurs everywhere in Indonesia, but it is of
varying significance. Circumcision and marriage feasts, births and funerals
are important focal points for reciprocal aid. The guests’ contributions
(called “ sumbang” in Javanese; “panyambung” in Sundanese ; “passeloq” in
OBLIGATIONS 147
Buganese) at such events are subject to the dictates o f what is at times

a scrupulously controlled equivalence. The tilling of fields and the building
of houses are other special events that call for ecxhange of services. 2
T h e countless presents of relatives and good neighbors to one another
come close to the more formal institution. All are founded on the idea
of the necessity of reciprocating the service or property received sometime
or other. T hese relations impose obligatory patience in high degree.
Disagreements about the non-equivalence of exchanges occasionally result
in imposed decisions, which are reached, however, in amicable consultation
(called rukunan in Javanese). This, too, is of great functional significance,
for the m em bers in a closely knit community cannot withdraw from the
course o f behavior expected of them ; and this individual credit transaction
still has the quality of considerable regulation.
5. Specialized assistance.—Alongside of undifferentiated recip
rocal aid within the community, we see the rendition of special services
by special groups, like the young men, girls, wood-chcppers and land
owners. Although this is different from reciprocal giving by sections of
fair.ilies, the community and village remain the basis of mutual aid.
C. ASSOCIATIONS
1. Cooperative societies.—We now come to grips with a different
principle, whereby persons break loose from the ordinary communal area
within which mutual aid is given. Groups, which have the tendency of
acting as independent units in intervillage relations, are formed *vith an
eye to reciprocal exchange of services and goods. The more villages or
other communities tend to be lax in communal endeavor, and the more
individuals wish to range beyond their village in their activities, the more
does the tendency to form associations assert itself. There are frequently
special interests, which are met in a variety of forms of associational
cooperation.
A specimen of this is the technique of loaning money called hwe, a
form of credit union apparently borrowed form the Chinese. A num ber
2 T h is institution is known as “ sambat sinambat” in Javanese ; “ resaya” in
Sundanese ; “ marsiadapari” in Batak ; “ seraya” or “ tulung menulurg” in M a la y ;
“ masohi” in Ambonese.
of persons pay in a definite sum each month, and each of them may use
the total amount in turn (“ sarikat” in Jakarta, “jula jula” in Minangkabau,
“ mohaqka” on the island of Salayar). The associations for the slaughter
of water-buffalo among the Atjeh are another example. So are the so-called
burial societies that are widely distributed all over Java.
The Minahasans speak of “mapalus” societies. This word has two
meanings. It refers to reciprocal assistance and to various groups formed
for such purposes as cooperative aid in agriculture. This agricultural serv
ice is not only rendered to each other by the members in reciprocity,
but can also be extended to outsiders for pay. Credit unions are known as
“ mapalus wang” .
T he best-known and most developed form of independent associations
are those of Bali, whose interests are commercial. The Balinese “ sakaha”
may have two meanings, just as “ mapalus” in Minahasa. It can apply to
a group, which has certain primary functions to fulfill within the village
and which may in addition, sometimes but by no means always, attain
a degree of independence as a “ society” , such as the “ banjar” , or youths’
association. Or, it can apply to an association voluntarily established out
side of the desa connection for digging tunnels, harvesting fields, loaning
money and giving musical performances.
We have previously noted (p. 78) the famous irrigation communities
(the “ subak” of Bali) with their economic basis in the possession of land
and with their more or less public character.
Thus the institution of reciprocal aid may, on the one hand, be re
garded as the basis of credit transactions : the “ utang piutang”, which
includes giving with expectation of a return of the equivalent at a suitable
date, individual specialized loans of money with more or less fixed time
limits, purchases on credit, etc. On the other hand, it may be seen as the
basis of all kinds of cooperation called into existence by the various needs
of native life.
Naturally, this does not mean that all permanent forms of cooperation
go back to the phenomenon of reciprocal aid. An institution like the new-
!aw “ sasi” on Ambon, which is a cooperative of coconut plantation owners
for protecting and marketing their produce, is something quite distinct.
OBLITATIONS 149
This is also true of those societies which take W estern cooperatives as

their model.
N ative cooperatives, which register themselves, are subject to the
legal regulations of the Staatsblad, 1927, No. 91.
2. Sharecropping as partnership.—In Chapter IV sharecropping
was described as an obligation involving land. It must also be m entioned
here, because it is a form of cooperation, or partnership, between the
possessor o f the land and the worker, in which the contribution of the
landlord is the admission of the worker to the land and the contribution
of the worker is the working of the land. And the product of their collab
oration is divided into shares previously agreed upon of fixed by custom.
3. Profit-sharing.—A form of collaboration similar to sharecropping
occurs throughout the island in the use of cattle. For a num ber of reasons,
cattle-owners place their cattle in the hands of another person to be cared
for. T h e owner and the caretaker share equally in yield or increase in value
of the animal. Beef-cattle and buffaloes are commonly farmed out and
made productive in this manner. Calves are divided between the owner
and the profit-sharing custodian in a definite sequence. Or they are sold
and the income divided. Or a fixed value is placed on the animal at the
outset. T hen it is sold later on and the increment is shared. Finally, the
calves may be retained and jointly owned by the owner of the cow and the
custodian, the proportions of ownership being worked out in a fixed ratio.
Because o f the great number of legal decisions on these m atters, fixed rules
have been formulated everywhere with respect to mutual rights and duties.
I f the custodian of an animal is negligent and causes the death of the
beast by his carelessness, he is held responsible for the damage suffered.
I f the owner calls back his animal without good cause being given by his
profit-sharing custodian, and before the animal produces offspring, the
custodian m ust be recompensed for the cost of maintenance. But this
does not hold, if he has profited from the labor of the cattle.
Local custom and individual variations give these agreements many
different aspects.
N ot only large beasts, like catde, but also goats, chickens and ducks
are made productive on this basis of mutual cooperation.
The native terms which apply, to this institution are frequently similar
to those for sharecropping. (See p. 130.)
D. INDIVIDUAL CREDIT TRANSACTIONS

1. Distinctions.—The loaning of money, with or without interest has
become a regular feature of Indonesian civilization. It is a legal transaction
engaged in not only with Arabs, Chinese, natives of India, and Europeans,
but also between Indonesian and Indonesian. Not the least o f its causcs
is the need to meet financial obligations to the Government.
Islamic prohibition of interest-taking still inhibits money-lending to
some degree, but the number of native money-lenders and credit societies
is legion. The Bataks even distinguish “manganahi” , to lend at interest,
from “ morsali” , to lend without interest.
The lending (utang or meminjam) of goods, store-goods, food, and
the like is common, as is the loaning of money with an understanding
for repayment in fruits, crops, hjdes and similar commodities.
The concepts of cash sales and credit sales both have the common
denominator of sales. Not so in Indonesian, where the two concepts are
contrasted as essentially different: “membeli menjual” (sale) as against
“ meminjam” or “meminjamkan” (credit).
Dunning the debtor must be done with courtesy and consideration.
Among the Bataks, in Bali and elsewhere, merely accosting a person about
an overdue debt on the public road is bad form.
2. Liability for the debt of another.—This may, in the first place,
be the result of kinship liabilities. A debt of any member of the clan is
a debt of the group, particularly if it is an adat obligation, which must
be fulfilled. A demand that the debt be met can be imposed on any of
the clan members. A man who loads excessive obligations on his clan
fellows may be expelled and placed outside the adat. This is exactly the
same as the way in which a piece of the area of disposal' may be given
up, if a community is unwilling or unable to put up the composition for
an offense committed on it by an unknown party. Presumably related
to this is the responsibility for the debts of the deceased on the part of
the heirs. (See p. 231.)
OBLIGATIONS 151
Personal responsibility for someone else’s debt may also depend on an

interrelation of relatives, as for example, in the Batak territories. Among
the Karo Bataks a man always acts in conjunction with, and is covered by,
his “ anaq beru senina” : an affinal relative and a blood relative^ who
represent the two responsible groups.
Furtherm ore, joint responsibility for a debt is present between two
spouses, where the joint use of marriage property is based on their both
being active for the family.
Finally, adat law also permits one person to give security for the debt
of another. T his is called “;amin” in Malay. “ Borreg” (see p. 135) has
been adopted as a native word referring to the giving of land as security.
T he security may be claimed, if it is apparent that no payment can be
obtained from the debtor. Structurally, however, there is not much room
in adat law for such an agreement. Debt peonage was more common as
an institution in Indonesian adat. Especially was it the case, if adat debts
(expiation money and the like) could not be paid by the guilty person or
his kinsmen. Then the offender became personally bound to the creditor
as the sole recognized means of restoring the social equilibrium, which
he had disturbed by his actions. And a person, who sought the help of
a powerful chief against hostile creditors, became the chief’s peon. Even
though this practice has been suppressed, the idea on which it was based
still permeates native relationships. I t is sometimes permissably expressed
by means of working off a debt by labor services.
3. Labor agreements.—Even as we have seen that individual credit
transactions in the loaning of money and goods may be related to the
institution of reciprocal aid, so the labor agreement may be seen as the
individualized form of the group interchange of labor services.
Working in a household for board and residence is frequent and
merges with the practice of accommodating poor members of the family
group in exchange for help in the house and fields known as “rajap” in
Javanese.
I f reciprocal aid is not available, wage work (upah) as laborers (buruh)
in the fields, weaveries, batik workshops, etc., is common in Java and
elsewhere. This relationship begins with an earnest sum (panjer, for which
see p. 155) which may also serve as a means of paying wages in advance,
just as a prepayment on a bride-price may be sometimes attached to the
engagement present.
T he provisions of the Staatsblad, 1879, No. 256, cause the N ether
lands civil law to be formally applied to most of these labor arrangements ;
skilled forms of work excepted. Such a provision is a ridiculous survival
from the days when there was no comprehension of adat law.
Compensation for specialist services (mediation, medical aid, magical
exorcism, etc.) is a common thing. Payments to witnesses summoned in
transactions include small sums as tokens of their involvement in the
m atter. They are generally known, along with other payments, as “ wang
saksi” ; but the Dyaks call them “ turu” , while the Bataks dub them
“ ingot ingot” , or remembrance money.
4. Commission contracts.—The commission contract (known as
kempitan) whereby goods are entrusted to the agent for sale, with the
agreement that at a fixed date either the goods or an agreed price will
be returned to the owner, is limited to Java. It is possible, however, that
the absence of this and other practices in specific law-areas may be no
more than expression of our ignorance of the facts, and it is necessary to
keep this in mind. However, regions are encountered in Java where the
sale o f immature paddy plantings (the “ijoan”, or “ ijon” , contract) is not
known at all and sales are limited to ripe, standing crops. Both forms of
sale exist in other places.
5. Old-age care agreements.—The so-called fostering contract of the
Minahasans occupies a very special place in adat property law. T he term
was introduced by van Vollenhoven.3 The Minahasan terms, “ ngaranan”
and “ mengara anak” , applied to the contract mean “ adoption” . However,
on the basis of its content, the transaction is not actually in the law of
relationship. In substance, the one party (caretaker) binds himself to look
after the maintenance, particularly in old age, of the other party, and in
addition, to attend to the latter’s burial and to see to the administration
of his estate after death. For this service he receives a share of the other’s
s [Adatrecht van Nederlandsch-Indie (Adat law of Netherlands Indies),
vol. I (1931), PP- 347 ff]-
OBLIGATIONS 153
estate, usually the proportion that goes to a son. When there are no children
as heirs, the caretaker is the sole heir. Although this contract may be
concluded between persons of any age, and even by unmarried persons as
receivers of care, it is especially married couples without children, who
bind young people to them as caretakers in this manner. T he result is
that the arrangement performs the same function that adoption docs
elsewhere, hence it is called “ mengaku anak” . Under the laws of rela
tionship a child, who enters an old-age care contract, does not break his
customary relation to his own parents. N or does the receiver of the care
inherit property from the caretaker, if the latter dies first.
Very similar to the Minahasan contract is the “ makehidang raga”
of Bali, by which a person surrenders himself with ?11 he has and holds
to another person. The one to whom the other person surrenders has to
provide for burial and cremation and to look after the surviving relatives.
For this, he gets a claim to inheritance in the other’s properties. Indications
that similar arrangements exist elsewhere are found in the report that in
Ambon testimentary bequests occur in favor of the person who has cared
for the testator up to the time of his death.
E. FRAUD ON CREDITORS
To what extent property continues subject to conversion for the

debts of the owner, even after it has been transferred to third parties is
a m atter that m ust always be determined according to the unwritten law
of the native population. The obligation to respect the interests of the
other fellow with whom a legal deed has been made, the obligation of good
faith, places the solution beyond the range of doubt, in many instances.
Attempts to defraud creditors by fictive transactions fall outside of this
area. They can be nullified as fictive transactions. But fraud sustained
by creditors in consequence of partitions, the distribution of ordinary
marriage property, gifts—all acts which could have been left undone,
but which having been done, prevent the creditor from obtaining his
due—makes these acts invalid in the decisions of Government courts.
Nor is legal recognition accorded to transactions by which property is
sold or pledged under such circumstances that the other porty m ust in
reason understand that creditors are being defrauded by that transaction.
The fact that it was generally known that a demand was pending against
the seller, the fact of close relationship between the buyer and the seller,
and other such facts have repeatedly been accepted as the basis of the
decision that the creditor’s right of recovery had not been lost by the
legal transaction. If, however, the third party in the transaction was in
good faith on that point, he is protected as against the creditor. In such
cases a solution would have to be reached, which allows the interests of
the creditor and of third parties both to assert themselves to a certain
extent (for example, to give the yield of the ground for a certain time to
the creditor, who might reasonably expect that the ground was good for
his debt, but to leave the ultimate right to the ground with the buyer).
Perhaps such solutions are really effected in the form of amicable arrange
ments.
Even if the property of the debtor is limited by the right of disposal
of the community, or belongs to an undivided estate, or is tied up in any
other manner, a faulty decision respecting execution is the cause of many
difficulties. It is necessary to try to formulate rules in decisions which
bring the interests of the creditor to a reasonable reconciliation with the
interests of those in whose behalf the possession has been set aside.
F. THE BINDER ; THE TANGIBLE TOKEN

1. Contractual binders.—T he difference between an agreement
with a binder and a cash transaction is obvious. They are, as it were,
opposites. One is a consensual agreement in which the consequences
result from a meeting of wills. The other is a real agreement in which the
contemplated results are immediately obtained in the moment of the
agreement, with no future obligations entailed. Although some property
changes hands in both types of agreement, the agreement with a binder
is more essentially related to the credit transaction, since one party is
concretely bound to a future fulfillment of the agreement. The difference
between agreement with binders and a credit transaction is that in the
latter the performance of one party takes place immediately, whereupon
OBLIGATIONS 155
it obligates the other to a counter-performance, which may or may not

be specified in detail in the body of the agreement. But in the former, both
parties are bound to the performance of certain acts in the future.
Binder agreements cannot be called consensual without further ado.
The mere agreement in words does not obligate anyone to anything. This
is accomplished only by the presentation of a small coin or some other
object.
T he contract frequently relates to the performance of a cash trans
action : the sale and purchase of a rice field, residential compound, or
cattle. I f an agreement has been reached, the future buyer gives the future
seller one rijks dollar as “ panjer” or “ tanda” . Without the “ panjer” there
is no obligation. I f the “ panjer” has been given and received, the agreement
is “ wis dipanjeri” , as they say in Javanese, and one feels bound to per
formance. The essential significance of this in daily business is in a magical
bond—a sense of the decent thing to do—in the fulfillment of the
agreement. So far as adat law is concerned, the sole significance of the
binders, is that the buyer forfeits the “ panjer” , if he fails to complete
the agreement or gives the seller reasonable cause for nullifying the agree
ment. In the case of breach by the seller, he ordinarily has to rerurn the
“panjer” , plus an equal amount.
I t is reported from the Torajas that the formal saying of “ yes” binds
an agreement and entails assumption of an obligation to pay. This seems
to be an exception to prevailing practices elsewhere.
Forced compliance with the terms of the agreement is almost always
precluded. The damage which has been incurred can usually be recouped
from the guilty person without use of force.
T he binder also occurs in agreements where the one party immediately
undertakes a long, drawn out performance; whereas the performance of
the other party is to take place in the future. This is the case in a labor
contract. The worker gets a trifling “ panjer” from the employer, who
pays the wages later on. The “panjer” is subsequently deducted from the
pay. This leads it to be called an advance payment (persekot), which
tends to conceal the adat law and functional significance of the transaction.
2. Engagement presents—The engagement present is a parallel
phenomenon in the law of marriage. Mutual obligation begins the instant

an engagement present or pledge is given. In patrilineal societies in which
engagement is the prelude to a bride-price marriage, the engagement gift
is frequently treated as an advance payment on the bride-price. Usually,
the man gives the engagement present, which is frequently called a binder,
(the names for which are given on p. 180), and the woman receives it.
But among the Minangkabau, and in some other places, there is an
exchange of engagement tokens (mempertimbangkan tanda).
In .Korinchi the ’’tanda paletak” is an engaQement pledge, which is
returned after marriage takes place.
The obligatory bond parallels the obligation in the law of property.
The party who breaks the engagement or gives the other party good cause
for breaking it forfeits the present (if it is the family of the man) or has to
return it two-fold (if it is the family of the girl) and must make good any loss
in the way of presents that were distributed in view of the expected marriage.
3. Other forms.—Among the Minahasa, the tie which binds the
father to his child is confirmed by him through an adat present, called
“ lilikur” , to the mother of the child. In like manner, the bond between
a foster parent and an adopted child is sometimes established by a present.
Numerous other customs are based on the idea that the transfer of
some tangible goods effects a desired connection between two persons
at the time of the transfer. The small present (usually in the form of food),
which accompanies a petition to a person in power or authority, and which
in Western eyes is too frequently looked upon as a bribe, is to be under
stood in this wise. The lawsuit deposit or present, which the plaintiff
adds to his claim, is another instance. These presents pave the way for the
establishment of the desired temporary arrangement, and lay the course
down which the decision can come.
The sharecropper’s payment or “ srama” (see p. 132), can be linked
to this institution. The acceptance of the “ srama” obligates the receiver
to give an answer or render a decision to the petitioner’s desire to use his
land, even though it be a negative one. The “ srama” is not always the same
as the “panjer” , but it is certainly closely related to i t ; magically at least,
it seems to be the same.
OBLIGATIONS 157
In the case of the “panjer” , the visible token follows the agreement
and makes it mutually binding. In the case of the present, which accom
panies a petition, acceptance obligates an answer, and sometimes, if it be
an invitation, it obligates consent. This may possibly be true of a “ srama”,
too. And the giving of presents also has some compulsion in it.
A concrete token can also be used to bind yourself to decisions for
mulated in your absence. In Bali, a.person who is detained from going
to the desa meeting, can give his kris to some member of the nuclear
village to take along as a proxy. So the Balinese widow employs the kris
of her dead husband to represent him when adopting a child for him after
his death. In Java, a prince may marry a concubine in absentia by having
himself represented by an official to whom he gives his personal kris to
be taken along for the occasion. The great lords of Mandar, in South
Celebes, magically bind a girl to themselves by sending her a kris. I f the
girl wishes to be free again, she has to be “ bought loose” .
4. Prohibitory symbols.—The visible symbol which establishes the
relation of a person to land or to a tree is of similar nature. Positively, it
establishes a legal tie between the object and its maker, while negatively
it keeps other persons at a distance. According to functional thinking
there is apparently created in this manner a metajuridical union, which
finds its juridical reflection in adat law.
5. Documents.—Sometimes a document is regarded as a tangible
token. This can never be true, if it is a record of a “jual” transaction, nor
if it is a documentary proof of a personal credit transaction, because the
binding effect is accomplished in the transaction itself. But the idea of
a token does prevail, for example, in the signing of the document by the
chief. In this, he makes the relation of the community to the new legal
situation visible for the future. The same is true of a letter, which may
be given to someone who binds himself to vote for the letterwriter. T he
letter, by which an employer agrees to engage an employee, is similar to
this.
6. Royal tokens.—In royal relations the tangible token is a universal
legal form as the symbol and confirmation of the legal bond between
prince and vassal, or chief. Princes give the rajahs of lower rank, who rule
under the authority of the prince, a suit of clothes, a weapon, cane, or a

certificate engraved on metal, and these are accepted as tokens of the
relationship. The titles granted to chiefs by the prince are probably c f the
same nature. And finally, the presents given to the prince frequently
have the quality of a present accompanying a request for recognition.
CHAPTER VI
EN D O W ED F O U N D A T IO N S
A. THE WAKAP
r " P O MAKE LAND or property “ wakap” is a legal act which has

such a very unique character that it must be treated separately.
I t is an act, which, on the one hand, brings the land or property into
a special legal position (see p. 107). But on the other hand, it can be under
stood as the creating of an independent unit in adat law, a juridical person
capable of participating in legal relations.
The name for the Islamic legal institution known as “ waqf” has
been translated as “religious foundation” . The “ waqf” has spread into
many regions of the archipelago, and to call it a religious foundation has
led to much confusion. People get the idea that “ waqf is permitted only
for a definitely religious or pious purpose. Actually land and property can
be made “ wakap” for any reason that does not conflict with sacred law.
It is really possible to distinguish between the two kinds of wakap
that occur most frequently. In the first place, there is the designation of
residential land for a mosque or prayer house. An arable field may be
added to it to provide for the maintenance of the mosque and its personnel,
plus copies of the Koran for use in the mosque. In the second place, there
is the designation of some property as inalienable for the benefit of
descendants, who are to enjoy the income it produces. As we have said,
this institution was taken over from Islamic law by Mohammedanized
Indonesians, and it is subject to Islamic regulations. This means that
the “ wakap” -maker must have complete power of disposal from the point
of view of adat law over the property he intends to make “ wakap” . The
property itself must be clearly assigned, and must not be used in any
way forbidden by Islam. The purpose of the “wakap” must be permanent
1 59
and must be set down in distinct terms, unless a tacit indication of purpose
is unambiguously recognizable. The beneficiaries m ust be indicated as
clearly as possible, and, of possible, they m ust accept the benefit (kabul).
An administrator may be provided for the administration of “ wakap” . If
there is no named administrator, then in Java, at least, the head of the
personnel of the mosque is called upon to act as such da jure. I t is part
of the duties of the administrator to see to it that everything which has
to be done to fulfill the purpose of the “ wakap” is done. I f the foundation
has been established in this way (usually evidenced by a document), then
the legal status of the property is controlled by religious aspects of
adat law.
Should the “ wakap” remain only in contact with the unwritten law
of the native population, it could probably stand as a legal form of proper
ty without specific representatives before the law-. Its fulfillment could be
completely determined and realized under the directions laid down by the
“ wakap” -maker. These count as law for it.
However, as soon as the “ wakap” comes in contact with a system
of written law, which presupposes that all property in legal relations
belongs to somebody (e.g., the Criminal Code), it becomes necessary to
conceive of a “legal person” behind the segregated property, of which the
administrator is the representative. This makes the form more complete.
In consequence, legal dealings with the “ wakap” , as for example, selling
something “ to the wakap” , can therefore be expressed in the unwritten law
as well. When seen in this light, the “ wakap” has the same independence
under adat law as an association, acting as a juridical person. I t differs
from it only in that it is not a plurality acting as a unit. Therefore, it
should be treated as a native legal person.
B. SECULAR FOUNDATIONS
When understood in the way just described, within the system of
adat law the “wakap” is undoubtedly an important point of departure
for the possibility of segregating land, goods or money as an independent
unit, even in circumvention of the Mohammedan limitations of the
“ wakap” . By such means a native juridical person, who, within the limits
ENDOWED FOUNDATIONS 1 61
set by the legal documents which creates it, can participate in legal
relations. T he need for such a device has already appeared a num ber of
times. For instance, in order to set up a fund for the benefit of descendants,
someone may want to segregate interest-bearing money, which may not
be made “ wakap” , because of a conflict with religious prohibitions. Such
a transaction must be judged according to its own qualities, independently
of Islamic prescriptions. It should not be construed as an exception
connected to the institution of “ wakap” . This is methodologically incorrect
and leads to legal quibbling. I f Christian Indonesians want to perform
such a legal act, it would have to be judged on the same principles as ap
ply to Mohammedans. Why should any judge be allowed to keep such
a legal form, which is growing in social actuality and tolerated by the
system of adat law, outside of the system of unwritten law by means of ju
dicial decisions? The decisions ought to be used as a device to systemati
cally develop coherent rules which give good legal form to social needs.
CHAPTER VII
T H E L A W O F P E R SO N S
A. THE JURIDICAL PERSONALITY OF ASSOCIATIONS
T )E C A U S E OF the variations which occur in fact, it is not possible to

formulate the legal position of organized groups, or associations, under
one principle. In numerous instances, an association appears as an inde
pendent unit, capable of owning money, a building and ground, and its
officers can act in its name in legal transactions. In this capacity, the
association is recognized in legal relations by everyone who is not bound
by Western conceptions of juridical personality (which cannot be said
for all Government agencies). Because of this, the association can act as a
plaintiff or defendant before a judge, and its property is subject to obli
gations of the association.
T he question as to whether the active officers of an association have
a subsidiary legal responsibility and the members, too, and whether with
drawing members can claim any portion of the association’s property
(as is the rule among the Toba-Bataks), will have to be answered repeatedly
through decisions. The answers will in each instance be dependent on
concrete local factors.
Statutory provisions have long since given recognition to the existence
of Indonesian juridical persons, such as autonomous regions, regional
communities, villages, Christian congregations, independent subdivisions
of an organized church, Minangkabau family groups, and cooperative
associations. A government regulation, which will give full legal recognition
to native juridical persons is (in 1938), fortunately now in preparation.1
Parallel enactments will have to be adopted at the same time, with respect
1 [Legislation to native juridical persons was enacted in iqiq , cf. Staatsblad,

1939, Nos. 569ff]. J
162
to endowed foundations, in order to check any attempts to get around the

requirem ents set up for independent associations by means of the foun
dation. This will have to be done, because the systematic nature o f law
does not perm it of half-way steps in this regard.
B. THE LEGAL POWERS OF NATURAL PERSONS
T he adult male and female are legally competent, according to adat

law, but within the limitations of family and extended family bonds. These
limitations, as has already become evident a number of times, vary in
nature and power in the different law-areas. A married woman can usually
act independently within her own sphere, even in a patriarchal milieu, in
spite of the fact that the power of the male is preponderant in a bride-price
marriage. In an adoptive marriage the superiority of the male goes without
question. There is only one region where it is apparent that a man assists
his wife in her private affairs, such as carrying on a law suit over a deal
negotiated by her personally.
According to the adat law of the small autonomous communities, the
moment a pers;n becomes full grown and marries, he or she departs from
the family residence of the parents, and the married couple proceed to live
as an independent family. They may do this by moving into their own
apartment in the extended family residence, or by setding in a house in the
compound of the parents, or they may move into a house in their own
compound. I t is always a question for factual determination as to whether
a particular form of residence is to be interpreted as residence with the
parents or being established on one’s own. The evaluation of the total
social setting is naturally of great weight in determination of the answer.
In this, the treatment of the newly-weds in mutual and reciprocal aid and
in ceremonial banquets within the village sphere will be of great importance.
These activities will show up whether the couple is still working for the
rest, as residents, or independently for themselves, and whether they are
independently invited to attend ceremonial banquets (the “ sedekah” or
“ slametan” ).
The termination of nonage in adat law does not result simply from
getting married but by ceasing to be a child in the household. In more
164 THE LAW OF PERSONS
than one law-area young married people continue to belong for a year
or more to the family of the parents with whom they reside. They are
trained for their coming independence during this time, and they get
their own property when they break off on their own (a process called
“menchar” in Javanese, and “manjae” in Batak).
Deviations from the old norms pose all sorts of problems. W hat is
to be done, for instance, if the oldest son takes over leadership on the
death of the parents, but stays single longer than is customary ? What
is to be done, if a young man, who is appointed to a desa office, sets up
his independent household, but does not marry ? What is to be done
when young people, who have been educated away from home, living
independently as students, return and continue to live alone without
being married when they accept an office?
In arriving at legal decisions in such cases, it will be necessary to
find out what are the characteristics of legal competence and its limitations.
In legal relations, which are withdrawn from the communal sphere
(i.e., put under jurisdiction of the Government), all questions as to com
petence require positive answers. In such progressive areas, and also in
relation to citizenship, the age in years (eighteen seems to be customary)
will be a factor. I t has been specified by ordinance 2 that the term “ minor”
in legislation means less than twenty-one years, except for married persons.
In Java persons who have been placed under guardianship by the court3
may petition the court for a declaration of termination of their minority.4
Insane persons are permitted to be at large, so long as they are not
dangerous. An appeal for a declaration of insanity and consequent legal
incompetence may be made, however.
I t is the function of the judge to determine in his decisions what are
the legal consequences of transactions which were independently performed
by incompetents. It may not be presupposed that their acts are always
“ null and void” . And this circumstance is recognized by legislation.5
* Staatsblad, 1 9 3 1 , N o . 54.
3 Landraad (Superior Native Court).
4 A fticle 30 , paragraph 2 , Ordinance o f January 3 1 ,1 9 3 1 , Staatsblad, N o . 53.
6 Article 29, paragraph 2, Staatsblad, 1931, No. 53.
For a father, or in his absence, a male member of the family in the

male line, to act as representative (wali) of a woman, who is being m arried,
has a character of its own, which is determined by accepted Mohammedan
law. (See p. 196.)
The person who appears for another under the adat law is generally
called the latter’s “ wakil” . In Java he is also called jugul. To send a
“ wakil” on a pilgrimage, if you cannot go yourself, is a pious act.
On the island of Ambon, the term “perlindungan” covers the care
of other persons, including the legally incompetent.
W hen a personal appearance is necessary, it is in an urgent situation
possible for the principals to be represented by someone else. Sometimes
a visible token, particularly a kris, is given the representative to take
along. (See above, p. 157.)
Acting on behalf of each other is frequent among relatives, as is the
appearance of a husband for his wife. In these situations an express
mandate or authorization is not asked for. This seems to be necessary
only if outsiders wish to act as representatives, and this is forbidden by
judicial decision in some of the law-areas, although in others it is at times
demanded. The statutory requirement of a written power of attorney
is naturally present in the area of Government administration of justice.
In the Lampongs and elsewhere, substitute representation for one
appearance in the “ proatin” (court of justice) on behalf of a chief by an
acceptable person, who simply appears instead of the chief, is allowable
in the same way as the sending of a proxy to a desa assembly in Java. T he
appointment of a permanent representative (pegang penyambut) of a
chief is a formal legal act, which often arises from an unwillingness of the
chiefs to serve as tools of the Dutch administration ; such chiefs are known
as “printah” in Lampong, and called “aso blanda”, European puppy dog,
by the Ngaju Dyaks.
Permanent representatives and assistants for adat dignitaries to per
form minor tasks and to act in the absence of the superior occur everywhere.
CHAPTER VIII
T H E L A W OF R E L A T IO N S H IP
HE LAW OF relationship is an expression of the social consequences of

T biological kinship. At the very outset it is clearly evident that the legal
consequences of biologically identical relationships may be very different
throughout the Archipelago. There is a general legal relation everywhere,
based on the relationship of parents to children. But the content of that
relationship varies and may be correlated with the form of marriage in
which the parents are found. Legal consequences universally arise from
the fact of common descent from common ancestors. But within what
degree of relationship these consequences are operative, or whether they
are bilateral or unilateral in effect, are all factors which must be investigated
independently for each tribe. No a priori generalizations are possible.
It would be uselessly repetitious to undertake a summary of all legal
relations for which kinship has significance. The kinship bond as a factor
in the structure of autonomous communities has been discussed in detail
in Chapter I. The fact that various circumstances of relationship lead to
preferential mating or to marriage taboo is a subject for “ marriage law” .
Relationship as the basis for inheritance is to be treated in the chapter
on inheritance. The role of the kinship bond as a basis for collective
liability for unlawful acts must be presented in the chapter on offenses.
And the claims of relatives in conjunction with the right of one of their
number to a field or compound have been given consideration in the
chapter on land law.
Only the following questions will be subjected to analysis at this p o in t:
1. When, and how far, does a child at birth stand in the relation
of offspring to father and mother with respect to a man and woman ?
2. What is the relation of the child at birth to the relationship
groups of its father and mother ?
3. How is a child who has lost one or bcth of its parents cared for ?
166
4. How can legal relations identical to socially determined relations

of kinship be created by legal act ?
T he treatm ent of these questions brings us up against the tension
which exists among many Indonesian peoples, between the conjugal
family and the kinship group (the extended family or the sub-clan). Some
of this tension will also be evident in the property laws of marriage and
inheritance. This tension is old, but it has been intensified more recently
by the breaking-off of migrating groups and by the increasing independence
o f the young people as a result of Western education. This has generally
increased the importance of the conjugal family at the expense of the
extended family, and continues to do so.
A. THE CHILD-PARENT RELATION
In the first question we put above, a distinction was made between

blood relationship as a general concept and the special relation of a child
to its parents. This is necessary because, among other reasons, in a
patrilineal system the m other’s relatives have quite a different significance
for the child than the mother. And in a matrilineal system the father s
relatives have a different significance than does the father. All sorts of
relations, such as the duty to support, right to care, power to dispose in
marriage, and in inheritance, exist with the mother as a mother and with
the father as a father, but not with them as the closest members of their
extended families. '
T he child born in wedlock has the woman, who brought it into the
world, as its mother. Its father is the man, who is married to the mother
and who sired the child. In Minahasa, Ambon, Tim or and Mentawei
the child born out of wedlock has the same relation to its mother as the
legitimate child. But elsewhere, there is a strong reaction against the
unmarried mother and her child. Originally, both were excommunicated,
killed by drowning, or given to a prince as slaves (which made them aliens
to the community). There were, and still are, practices, however, which
serve to protect the mother and child from such a harsh fate. T he man,
who was pointed out by a woman as the sire of her child, might be forced
to marry her, whether he was engaged to her or not. The “ rapat marga’’
168 THE LAW OF RELATIONSHIP
(native court) in South Sumatra, for example, always sentences a man to

marry the woman in such a case. The village chiefs in Java try to force
m arriage; and the judge in Bali punishes the man, if he refuses. There
is also the emergency marriage of a pregnant woman to an arbitrarily
selected man, say, the village chief, in order to make the birth possible
in wedlock. The Javanese call it “nikah tambelan” , or patch-marriage,
and the Buginese dub it “pattongkoq siriq” , or shame covering.
Because effectual excommunication no longer takes place, except
occasionally on Nias, the mother and child are tolerated. But the child
may be slurringly called a bastard (in Bali, astra; in Javanese, haram jadah).
An adat payment is sometimes necessary for permission to stay on in the
community, and in Bali acts of legitimatizing may be performed if there
are definite reasons. Then the legal relation of child to its unmarried
mother is the same as a child born in wedlock. Balinese children, who
are born during a period of actual cohabitation prior to the marriage, are
considered legitimate.
Except in Minahasa, the extramarital child has no father, according
to adat law. In Minahasa no distinctions between legitimate or illegitimate
are drawn in law, but if the father wishes to establish his relation beyond
a doubt, when he is not living with the mother, he gives her the present,
called “lilikur” (see p. 156). Children of Indonesian Christians can some
times be legitimatized by marriage and also by virtue of the Ordinance
of 1933.1
I f a married woman gets a child by another man than her husband,
the husband is, nevertheless, the father of the child under adat law, unless
he rejects the paternity on acceptable grounds. This is possible in Java,
at least. In Minahasa it is again different in that the natural father is
recognized as “ father”, if his paternity is established.
It does not seem to matter in adat law how long after the conclusion
of the marriage contract a child is born. Islamic law, however, requires
that at least six month shall have passed, if the birth is to be considered
legitimate. It is possible that this rule has had some influence on adat law
here and there, but in each case, it is rare. It is definite, however, that
1 Staatsblad, 19 33, N o. 74.
it has not influenced the institutions of compulsory and emergency

marriage.
I f a child is born after the dissolution of *a marriage, the divorced
man is its father, providing it is born within nine months of the divo
This is the adat provision. The Islamic law of four years post-marital
liability has not been taken over anywhere.
The children of secondary wives are inferior in status to the children
of the principal wife, especially as regards inheritance and their relation
to the status of their father.
Incest prohibitions forbid marriages between father and daughter
and mother and son.
Another legal aspect of the parent-child relation is the mutual duty
of maintenance and care. However, the claims of the unilateral family
group can, in particular instances, set aside the duties and claims o f the
father or mother. (See page 205 for a more detailed discussion).
I f the father is at hand, he must always act as the representative (wali)
of his daughter, in accordance with Islamic law. Between parents and
children, inheritance ab intestato depends more on the regulations regarding
blood kin than on the filial patterns.
Final dissolution of the parent-child relation, such as a father dis
owning his son, is legally possible in several areas. I t is called “mangalip-
lip” in Angkola and “pegat mapianaq” in Bali.
Children can always be turned over to foster parents for maintenance.
This is an act, which while sometimes difficult to distinguish externally
from adoption, is an entirely different thing. Adoption means relinquishing
the child, but a fostered child can be reclaimed at any tim e by the parents
upon reimbursement for the cost of maintenance.
B. CHILD AND KIN GROUP RELATIONS
There has been little investigation into the question as to whether

illegitimate children have the same relations with their kinsmen as do
legitimate children in those locales where unmarried mothers and their
children are still subject to social disabilities. In Rejang they are not, and
the illegitimate child is outside the kin group. But in Java there is apparently
no difference in the kinship status of legitimate and illegitimate children.
Wherever the father must assume responsibility for his illegitimate
offspring, the child’s relationship to the father’s kin is regularized.
T he variability of kinship systems (the social evaluation of the biol
ogical family relationships) has already been reported on in Chapter I.
Only a few points need to be stated or repeated here.
In some law-areas there is no difference between the relative positions
of the father’s family or the mother’s kin group with respect to the child.
This is the parental or bilateral relationship system. Marriage prohibitions,
preferential matings, inheritance, and all similar legal obligations fall
even-handedly on both sides. Nevertheless, two distinct forms are recogniz
able. In the interior of Borneo and Celebes, for example, where secluded
tribes maintain the bilateral system, matrilocal residence causes a child
to have much closer contact with its mother’s group than with its father’s.
And thus, although the adat makes no distinction between the positions
of the two, the mother-group is actually in a more important position.
As a second type, there are the peoples who do not live in clan units but
group by families in territorial communities, such as those of Atjeh and
Java. Village endogamy sometimes occurs, but exogamy and endogamy
based on kinship groupings do not occur. Kinship relations are evenly
balanced on both sides. Careful observation does bring out customs, which
presumably originated in a period in which a unilateral system prevailed,
or possibly, they are the result of the influence of the unilateralism which
is the foundation of Islamic law. However, such speculations concerning
origins are separate from the question of the current function and legal
value of such customs.
From the interior to the coast of Borneo and Celebes there is a tran
sition from the bilateral system of the inland communities, based on tribes
and extended family groups, to a bilateral system, in which conjugal families
within the villages are the only units.
In other law-areas the system is not bilateral but unilateral, either
patrilineal or matrilineal.
This means that groups of relatives, the lineages and sub-clans, are
distinguishable as social entities, because of their internal organization

and their unified relation to land, houses, properties, a clan or lineage
name, a title, an adat rank, etc. These groups are based on a one-sided
principle of descent, and consequently they comprise only those persons
who are related along either the male lme of descent from a common
ancestral father, or along the female line from one common ancestral
mother. I f both principles are operative in a single society, so that each
individual belongs to two unilateral groups, one paternal and the other
maternal, then we may adopt the ethnological term “ double descent” for
it. However simple and natural such a system may seem to the person
who grows up in it, it is complicated and difficult for the outside observer
to grasp. But it is not common in the legal organization of the communities
of the Archipelago today. It is possible that the traditional inheritance of
certain properties from father to son and of other properties from mother
to daughter is perhaps a double-unilateral trait in Atjeh and Savu.
Among many Indonesian peoples, the single unilateral principle
prevails, and either the matrilineal or the patrilineal clan is the sole basis
o f relationship groupings. The unilateral character of the group is preserved
primarily through exogamy.
A consequence of unilateral organization is that a child has an entirely
different social relationship to its mother’s relatives than to the group on
its father’s side. In a matrilineal system the m other’s group is socially
important for the child above all others. This does not mean, however, in
such a system that the clan of the father is devoid of significance for the
child. N or does it mean that the maternal clan is unimportant in a patrilineal
system. Among the matrilineal Minangkabau, the father’s family (bako
baki) is represented in all sorts of ceremonies. It sometimes assists in the
support of the child. It enjoys a distinct marriage preference. And it may
take over possessions from a family that is dying out, rather than outsiders.
Among the patrilineal Bataks, the sub-clan of a boy’s mother is of great
importance to him, because he has to choose his wife from it. It is of further
significance for a youth in Toba, because of the ’’hula hula boru” relation
ship, which we discussed on page 71. On Sumba the patrilineal relatives
o f a mother contribute to the bride-price of her son, and so forth. Thus,
even though only one of the two unilateral groups represented by the father
and the mother has formal social significance, both groups do have social
value for the child. But that of the father has by far the greater significance
in a patrilineal system, while the weight is with the mother’s group in a
matrilineal system.
What has been stated here, however, is complete only if one type of
marriage exists among a people possessing a simple unilateral system, as
do the Minangkabau and Toba-Bataks. (See p. 185). Yet there are Indone
sians among whom at least two types of marriage are known. There is
bride-price marriage (bruidschathuwelijk, in Dutch) as a result of which
the child belongs to the patrilineal sub-clan of the father. There is also
adoptive marriage (inlijfhuwelijk, in Dutch), as a result of which the child
belongs to the patriarchal sub-clan of its mother. In this case, the m other’s
patriarchal sub-clan, or lineage, is accordingly of supreme importance for
the child. I f these adoptive marriages are the exception in a society, then
the relationship system retains its dominant patriarchal character. I f
adoptive marriages come to be the rule, as may be the case among Saparua,
then a matrilineal system would in time necessarily result. I f the bride-
price marriages and adoptive marriages are equally common, as among
the Rejang (see p. 56), then the recognized kinship groups are descended
either from a common ancestor or a common ancestress. Descent will be
reckoned either patrilineally or matrilineally, depending on the form of
marriage of the parents. This would not be either a bilateral, or a double
unilateral, system. Nor can it be called either a patrilineal, or a matrilineal,
system, since this would arbitrarily emphasize one system over the other,
when both are equally frequent (although it is true among the Rejang that
there are symptoms which point to a patrilineal preponderance). W hat we
do have is unilaterally defined groups of relatives (suku) existing alongside
o f each other. The line of descent shifts constantly from the paternal side
to the maternal, depending on the form of marriage. Therefore, it should
be known as an alternating unilateral kinship system. Such alternating
systems seem to exist here and there in the Great East, and associated with
them is the practice of transfer of children from the mother’s sub-clan to
that of the father.
A unilateral kinship system may have a certain am ount o f parental

interweaving, if, as in Bali, exogamy is not known, or, if it falls into desue
tude, as among the Mentawei, or when marriage within the sub-clan is
perm itted in order to avoid high expenses, as in Central Timor. I t may also
result from a third kind of marriage (in Rejang, semen do rajo rajo; and
in Pasemah, tambiq anaq jurai duwa negory duwa) through which a child
is placed in an identical relation to the kinship groups of the father and
mother. In the case of the matriarchal Semendoeans and Rebangan of
South Sumatra, the oldest child marries in such a way as to maintain the
matriarchate (tungu tubang) along with the core of the extended family
property or small family property. But for the other children, who marry
in accordance with the “ semendo anaq tengah” marriage form, the system
is bilateral.
A general characteristic of Indonesian kinship systems in the so-called
classificatory evaluation of relatives. The entire generation of a child’s
parents occupies a status similar to that of mother and father with respect
to the child. Difference in generation, therefore, results in the prohibition
of marriage.
C. THE CARE OF ORPHANS
In regions having a bilateral system of kinship, when one of the parents

dies or is missing, while there are still small children in the family, the
remaining parent continues to carry on with parental authority. I t may be,
however, that when the father is an outsider the children are left to the
family group of the deceased, as is the case with the Ngaju Dyaks. I f both
parents die, in a bilateral region the duty of caring for the orphans falls upon
whichever of the groups of relatives is in the best position to care for them.
The location of the family residence during the children’s lifetime is natu
rally o f great importance in influencing the course of action in this situation.
The nature of the marriage payments, which had been made by the parents,
may also be an influential factor, as in some Dyak tribes of Borneo.
Older children decide for themselves to which group they shall adhere,
according to personal preference. In any concrete situation, the operation
of choice between the principles of next-of-kin and who-is-best-situated-
for-the-job is a family group matter. I f difficulties interpose, or no one is

available, or the available persons are unsuitable, in Java and M adura the
Native Superior Court can appoint a guardiar. 2
Among people with unilateral organization, if the parent who gives
descent to the children survives (i.e., the mother among the Minangkabau,
or the father among the Batal s, Lampongs, or in Bali), he or she alone
among the relatives continues to exercise parental authority. But if the other
parent survives (the one from whom descent is not reckoned), noticeable
tension between the family and the clan group arises. In Minangkabau the
children stay under control of the kin group of their dead mother. But their
father will participate in their well-bein^ as much as the actual circumstances
permit. Among the Bataks and in Bali, the widow stays on to rear the
children in the midst of her husband’s relatives, either as a widow or remar
ried to her deceased husband’s younger brother under the levirate. However
if she wishes to return to her own kin or to marry someone else, she may
leave her husband’s group, but the children stay under the control of their
paternal relatives.
In situations where migration, or other circumstances, have led to
a stronger small family life than was formerly the case, this last rule may
be modified by the principle : When the interests of the children require
that they stay under the control of their mother until full-grown, they shall
continue to live with her as one family” . Nevertheless, any property involv
ed v, ill stay under the control of the paternal kinship group, to be adminis
tered, however, for the benefit of the children.
I f in a unilateral society both parents die, control of the children and
their property is in the hands of the kinship heads or ciders of the lineage
cr clan to which they belong.
The effect of divorce upon children is discussed on page 205.
D. ADOPTION
We have already made note of the fact that kinship relations which
are socially determined, may be altered or ignored by legal action. This is
true, in the first place, in the case of adoptive marriages. In a patrilineal
2 Chapter II, Ordinance o f January 3 1, 1931, Staatsblac, 1931, N o. 53.
system, where authority and succession follow the male line, it is possible,
in a marriage without bride-price, for the children t3 affiliate with the
patrilineal group of the mother.3
Adoption is common throughout the Archipelago. By means o f it a
child, who does not belong to the family group, is brought into the family
in such a way that his relationship amounts to the same thing as a true
kinship relation.
First, there is the adoption of outsiders into a firmly formed group of
relatives, a sub-clan or lineage. The child is separated from its previous
environment and is brought into the adopting family in return for an
equivalence in goods of magical value.4 The motive for such adoptions is
fear of extinction of a family. The childless family is acting as a part o f a
lineage. Although the child is adopted by a pair of parents, the act is a
m atter for the whole family group. The child is wholly freed from its original
group of relatives and takes the place of a natural child of its foster parents.
In Nias, Gayo, the Lampongs and Borneo, adoption is accomplished with
ceremonies, rites de passage, in which the chiefs cooperates. The act must
be “ terang” , and so be elevated into the legal system of the community.
This type of adoption seems to be absent among the Minangkabau, while
it occurs sporadically in the frontier region between the .Minangkabau and
Mandailing. It does not occur at all in Angkola.
T he second form of adoption is the “nyentanayang” of Bali. This is
adoption from within the great traditional clan of relatives (purusa).
However, in recent times adoption from outside this group is growing in
frequency. In some villages members of the wife’s family may be adopted.
I f the head wife has no children, but a secondary wife does, then her
children are made children of the first wife by adoption. I f there are no male
relatives available for adoption, a girl may be chosen. The legal act of
adoption requires first that a thread be burned in two, s d as to separate
the child from its own family. The second step is the adat payment of one
thousand kepeng to its mother. The man who is doing the adopting acts
in concordance with his family group ; it is announced in the desa; and
3 For further details, see infra, p. l8 s f f
4 See, adoption as a cash transaction, p. 1 15 .
permission must be obtained from the officials of the prince, who draw
up a legal document. The child itself gets presents. Here again, the child
is fully cut off from its former parents, even in inheritance, and is a full
member of its new family group.
The motive for this form of adoption is also the fear of dying childless
and so suffering the extinction of the line of descent. A widow may also
adopt a child for her deceased husband.
As a third variety, there is the adoption of nephews and nieces, which
occurs in Celebes, Java, and other places. Among the Gayo, the Pasemah
and the Pepadon groups, in the Lampongs, it takes place alongside of the
adoption of non-relatives. However, it is distinguished from this last form
by name and in the omission of payments for the children.
The adoption of nephews is, in a broad sense, to be compared with
the transfer of family land by partition, as a shift within the family group
as such. Usually, there is no question of payments. Nevertheless, a practice
in East Java, which gave adoption the character of a cash transaction, still
seems to exist in the payment of a magical token of “ rong wang sagobang”
(seventeen and one-half cents) to the real parents, as a means of breaking
their magic tie to the child. Among the Minahasans a tangible token, called
“ parade” (not lilikur, it seems) is given to the child in confirmation of the
adoption.5 The predominant purpose is, as usual, to get a descendant to
carry on a person’s line. But this is not the only motive. Families already
having children may adopt a nephew to get another worker, or out of the
hope that the act of adoption will cause children to be born later on. I t may
also be out of pity for a little orphan boy. Recognition by the village chiefs
seldom figures in this type of adoption in Java and South Celebes, but in
other places lineage heads and people’s chiefs are occasionally called into
the transaction. In the Pasemah the adoption is made “ terang” in the
presence of the entire “ dusun” population—the “ laman dusun” .
I t is true that in Java the adoption of non-relatives does occur, but the
adoption of nephews is over-whelmingly more frequent. It has a solidifying
effect on the extended family bond. The adopted child is treated so com-
8 Concerning the old age care contract, which the Minahasans call “ adoption” ,
the reader should refer back to p. 15 2 .
pletely as one’s own that the fact of adoption is not mentioned after the act is
completed. But in this case, the child does continue to retain an inheritance
claim in the property if its real parents. I t also has a claim on the property
of its foster parents, but probably not to the inheritable property which
m ust revert to the husband’s or wife’s own family. (See p. 227). This comes
about just because this type of adoption is not an extended family m atter,
and because the act was not made "terang” . In South Celebes division o f
property does exist, but there does not seem to be any claim on behalf of
an adopted child as an heir ab intestato.
Finally, there is the unique adoption rule that permits a childless man
to adopt his step-children (i.e., the children of a second wife), but only
when the actual father of these children is dead. Among the Rejang this is
the "m ulang jurai”, while among the Maanyan-Siung Dyaks, it is called
“ ngukup anaq” .
Among the Lampongs, to raise the son of a secondary wife to the
status of son of the number one wife, changes the legal position of the boy,
and gives him claims to succession to the dignities o f his father. In Bali
if the secondary wife has her own sacrificial place, her son can be transferred
only by means of the full adoption ceremony mentioned above.
In patrilineal regions, the adopted child is ordinarily a boy, unless
someone adopts a girl in order to make sure that a boy can conclude the
preferred cross-cousin marriage, as is the practice in the Kei Islands.
T he adoption of a girl into the patrilineal sub-clan (kabisu), in order to
make marriage with a boy of some other sub-clan possible, takes place in
Sumba. In like manner, when the Batik sacerdotal prince, the Si Singa-
mangaraja, wants to marry a woman, who does not belong to the “ marga”
in the Lontung group from which he is supposed to take his wife, the
‘‘marga” adopts the desired woman for this purpose. The adoption of girls
occurs among the Semendoeans, or among the Langak Dyaks and Tajan
Dyaks of Borneo in order to have a daughter who can administer the nuclear
property (see p. 217); this gives her a place above the sons in the family.
In Bali and the Great East, a father adopts a man, who then marries
his foster-father’s daughter. This is closest to adoption marriage without
adoption. I t is usually unmarried children who are adopted. Adoption is
usually done by married persons, who are old enough to be the parents of
the foster child, but in Bali, adoption by unmarried persons occasionally
takes place.
In principle, annulment of an adoption is possible in all situations,
which permit the expulsion of a child. (See p. 169). It can also be done in
Bali for a number of other reasons leading to dissatisfaction. It is possible,
too, in Borneo, but only on payment of high damages.
We should also make note of the fact that in Bali only a son can receive
the estate of his father and continue his position as head of a family. I f there
are no sons, a boy can be adopted, either by the man, in anticipation of
death, or by his widow, after the event. But instead of doing this, the father
may raise a daughter to the position of “ sentana”, or succeeding heir.
This confers the rights and duties of an eldest son on her. Such a girl can
marry only in accordance with the adoptive marriage form, and her husband
is then called “ sentana tarakan” .
Finally, there is the legal act by which a father obtains the transfer
of one or two of his children from their mother’s clan (to which they belong
because of adoptive marriage) to his own. This transfer results because a
traditionally fixed payment was made at the time of the marriage or in
consequence of a later payment. It is in effect a cash transaction.
CHAPTER IX
M A R R IA G E L A W
A. MARRIAGE
A /T ARRIAGE, in adat law, is in varying degrees a m atter o f kinship

^ ' -^group, family, community and personal concern. I t is also a m atter of
social status. Marriage is the means by which the organized relationship
groups which form autonomous communities maintain their existence, be
they sub-clans, sub-tribes or extended families. But within the community
marriage is also the means by which the individual family extends its
own line into the future, and this makes it a family matter.
In societies with unilateral kinship systems, marriage is the means by
which group relationships are regulated. It is an element in the interaction
o f d an s, whereby sub-clans maintain or reorient their relative positions
in the tribe. Thus, legal squabbles and old family feuds are occasionally
extinguished by intermarriage between the hostile families.
T he village and regional communities are concerned in the m atter
o f marriage, insofar as it brings new members into the social nucleus,
which bears the full burdens and privileges o f responsibility for the
spiritual and material welfare of the community.
Social classes maintain themselves through well-regulated marriages,
and hence the tie-up between marriage and social status.
All these functions of marriage give rise to the intercession of clan
heads, village chiefs and parents in the choice o f mates, the form of m ar
riage and the conclusion of the marriage. Marriage becomes a legal event
that is synchronized in the legal system. It has to be “ terang” . The chiefs
of the community get paid for confirming it.
On the other hand, however much marriage may be a family or com
munity matter, it is always the concern of the individual person—some-
179
thing to be sought or avoided. The sequence of events in marriage by

proposal, and especially elopement and abduction, reflect the tensions
between the group and the individual.
The marriage ceremonies are universally charged with primitive and
animistic ideas and customs. But they are also a point of contact for the
revealed religions of Islam and Christianity, each of which influences
marriage law and customs in its own way.
1. PRELIMINARIES TO MARRIAGE
a. Marriage by proposal. (Mominang in M alay; nglamar in Java

nese.)—This form occurs generally throughout Indonesia. One party,
usually that of the boy, invites the other party to consummate a marriage
by giving an offering of betel (sirih). Such a proposal is almost always
conveyed by an envoy or representative, who uses many flowery expres
sions and metaphors. The parties to the negotiations may be the extended
families, the parents with the family group, or the parents alone, in concert
with the marriageable pair. It is reported over and over that the future
partners to the marriage may have a decisive say in the matter. T he data
on this point are given in detail for most law-areas.
I f the proposal is accepted, this does not usually lead directly to
marriage. There is first a betrothal in which the parties to the engagement
bind themselves many times over to conclude the marriage. Usually,
but not necessarily, the marriage date is set at betrothal, and the amount
of marriage payments and the penalty for breaking the engagement are
agreed upon. The agreement becomes binding only when the engagement
present is handed over. The gift goes to the extended family, or the parents
or the woman. Sometimes this binder is given to the woman by the man,
but among the Bataks, Minangkabauans, most Dyaks, some Torajas and
the To Mori, both parties exchange them. The engagement binder appears
to be unknown among the Minahasans.
Among the Atjeh the betrothal present is called “ tanda kong narit” ,
the sign that the agreement is in effect. In Nias it is “ bobo m ibu” , a kind
of hair band. On the Mentawei Islands it is called “ sesere” , a derivative
of “ sere” , to bind. In South Celebes it is “passikkoq” , derived from
MARRIAGE LAW 181
“ sikkoq” , which also means to bind. Among the Tobelo in Halmahera

it is known as “ tapu” , anchor. The Kei Islanders call it “ mas aye” , binding
gold. In Javanese, the present is called “panjer” and “panjerset” , means
of binding. In Sundanese the word is “panyangchang” , which also means
binder.
In scattered instances, the meaning of the gift seems to be somewhat
different, and so its name has a different origin. In Bali, the betel, which
is a part of the gift, is called “ base panglarang” , the means of preventing
(anyone else from marrying the girl), although the entire present is simply
called “ paweweh” , gift. In the Balinese village of Tnganan Pagringsingan
betrothal is called “ masawen”—the attachment of a prohibitory mark
through the offering of betel.
In isolated instances, the ornament, which is given to the girl’s parents
at betrothal, is returned after the marriage takes place. This makes it an
engagement pledge among the Korinchi. The “ tanga rasan’ (marriage
pledge) of the Rejangs is the first instalment of the marriage present given
to the woman. !f she refuses, it must be returned; hence it is also called
“ gadai” (pledge).
There is an element of magical effect in all the giving of engagement
binders. No doubt there is a trend toward a diminution of belief in the
magic consequences, so that the “ tanda ’ takes on instead the quality of
proof that the engagement actually took place.
In the event minors are being engaged, their parents or family headmen
naturally act for them. Adults, who are being engaged, usually are per
m itted a say in the proceedings.
There are many motives behind engagement. A person wants to make
sure of a good marriage before long. Sometimes he gets help from a future
son-in-law. Where girls are permitted free sexual licence before they become
engaged, there may be a desire to with-draw is privilege from a girl as
soon as possible.
Betrothal is usually marked by a feast attended by members o f the
extended families. The village chiefs are usually informed of the engagement,
so as to bring the community officially into the new legal act. T hus the
parties are assured of legal protection through the cooperation of the chicfs.
Engagement, and especially the engaged girl, is variously called “ tu-

nangan” (Malay), “ pachangan” (Javanese), and in Bali, “ bunching” .
Among the Nâju Dyaks, infant betrothal of a girl to a particular boy is
known as “ mamupuh” . This is, in fact, a sort of preliminary engagement.
In some law-areas there is an unusual form, which can be called “ pres
sure proposal” . Among the Ngaju Dyaks, for example, the boy climbs up
on the house of the y r l with a valuable present. He will not remove himself
until she gives her consent to marriage, or buys him oft' -vith a forfeit of
equal value. Marriage follows hard after, without an engagement period.
Sometimes a pregnant girl will force a marriage by locking her swam
within her house, and publicly displaying gifts.
Among the Torajas, and other tribes, the boy and girl can make
their marriage imperative by simply staying together in the girl’s house
until morning has set in.
Incest taboos, which prohibit marriage, and the rules of preferential
mating are, of course, operative at the time of engagement. T he prohi
bitions include clan exogamy, marriage with close relatives, reciprocal
marriage relations (see p. 191), marriage with the divorced spouses of
fellow clansmen, and marriage with co-villagers. In addition, in many
regions a younger sister may not marry until her older sister has done so.
Preferential mating is usually in the form of asymmetrical cross
cousin marriage with the mother’s brother’s daughter.
These rules regulating marriage tend to be strictly compulsory, but
they may sometimes be set aside by making an adat payment, which
nullifies the bad luck that would otherwise follow in the train of violations.
Thus it is sometimes easy to arrange it so that marriage with a member
of a different sub-clan within your own clan is possible. By means of
special payments the two sub-clans are separated from the parent clan
and raised to the status of independent clans—and thus intermarriage
is permissible. 1
When both parties agree to breaking off an engagement, this is a
matter for family and group concern.
1 A practice called “ pechah suku” by the Rejang, and “ merubuh sumbai” in
Pasemah, which means “ splitting the clan” .
MARRIAGE LAW 183
Unilateral action in breaking off an engagement can occur by behaving

in such a way as to keep the other party from wanting to go through with
the marriage, or by simply withdrawing, without giving an acceptable
reason for it. T he guilty individual has to forfeit the “ tanda” , or return
double its value. Or, some other penalty may have been fixed at the time
of engagement. In all parts of the Archipelago, when both parties are
guilty, a restoration of the pre-engagement situation takes place.
Islamic law makes no provision for engagement, and hence the reli
gious judge does not recognize any legal obligation in it. Indonesian
Christians usually include some provisions covering engagement in their
legal regulations. But there is nothing on the subject in the ordinance
set forth in the Marriage Ordinance for Christian Natives.2
The marriage, which was agreed upon in the betrothal, is concluded
on the specified date. But adat law marriages are always drawn-out affairs,
so that it is impossible to state at just what point marriage as such begins.
I t includes such acts as the giving of certain wedding presents, the parade
o f the bridegroom and his retinue to the home of the bride, carrying aJI
sorts of goods, the ceremonial meeting of the bridal couple, sacrifices
and incantations, eating together, which is the renewal of contact with
the vital powers, the payment of the bride-price and coition. Islamic and
Christian law, on the other hand, recognize a particular moment at which
the marriage is accomplished.
b. Marriage by elopement.— Elopement, without a formal engage
m ent or proposal, is common in the areas of patrilineal systems. But it
also occurs in bilateral, and even matrilineal, regions. Its aim is to avoid
the obligations which an engagement brings about. And, of course, it gets
around the meddling and opposition of parents and relatives. Actually,
however, the relatives do not always disapprove of elopement.
T he elopers leave a letter, or some piece of goods, or a bit of money
at the girl’s house. Then they take to a place of refuge in the home of
a relative or village chief. With the marriage treated as a fait accompli
(even though sexual cohabitation may be postponed), negotiations over
the bride-price are undertaken. In some instances, as among the matrilineal
2 Staatsbladj I 933 > N o - 7 4 -
Rebangans in the Lampongs, and some Dyak tribes, the marriage can srill
be opposed by the girl’s family in spite of the elopement. For the couple
have to live with her folks. Elopement usually lowers the cost of the usual
marriage payments. But in Bali, as one example, the bride-price remains
as high as ever, and in the Lampong area an additional payment is
demanded.
In South Celebes elopement is an offense contrary to adat law.
Marriage is possible only on reconciliation with the girl’s family. It may
be a long time before reconciliation is attained and marriage in accordance
with Mohammedan forms is fulfilled. Therefore, the status of the elopers
is legally recognized in certain aspects of the rights of children born or
conceived before the marriage is completed.
c. Marriage by abduction.— This can mean one of two things. It
can refer to actual abduction of a woman against her will. Or it can refer
to absconding with a girl engaged or married to someone else. This is
reported from Borneo, for example. The absconder has to pay the usual
marriage costs, plus damages to the offended male. Abduction marriage,
in the first sense, occurs in the Lampongs and in Bali. The line between
elopement and abduction is frequently hard to determine, but when it
really is a case of abduction, the abductor may be killed, if he is overtaken
before he reaches the place of asylum with his prize. I f he succeeds in his
venture, the ceremonies of offering the bride-price take place, especially
i f the couple have had intercourse. The successive steps in the procedure
follow the same pattern as in marriage by elopement. In this case, the value
of the payments is usually high.
In South Celebes elopement is apparently simply called abduction,
because it always calls out violent opposition from the girl’s family. They
have the right to kill the man.
2. MARITAL FORMS
The relation between the form of marriage and the prevailing kinship
system has been discussed at a number of previous points, but now needs
to be examined in detail. First, it should be noted that throughout the
Archipelago, an exchange of presents is apparently a universal feature of
MARRIAGE LAW 185
marriage. Marriage without an adat payment is either a special form, like

adoptive marriage, or else a rare exception—an unusual deviation or the
result of Christian influence.
Among the various forms of marriage, the most important basis of
distinction is between marriages consistent with either patriarchy or m atri
archy. In the patriarchal type, the woman is released from her group of
kinsmen and passes over to her husband’s kin group as a person allied by
marriage, and the children belong to the father’s clan. This is the sole
type of marriage among the Toba-Bataks, for example. In the matriarchal
type, on the other hand, the woman remains in her group of relatives and
the husband in his and the children belong'to the m other’s dan. This
is the sole type among the Minangkabauans. T he patriarchal type of
marriage is always linked with marriage payments, which serve to make
the transfer of the woman possible and to remove her and her children
from her clan. In Bali, the payments remove her from the power of her
domestic gods. Thus theie is a double character to this form of marriage.
From one viewpoint, the woman and the presents are a central part of the
exchange system between clans, which keeps everything going. From the
other viewpoint, the exchange is the magical means o f releasing the woman
and effecting her transfer and that of her children, without disturbing the
social equilibrium and the balance of the cosmos.
Matriarchal marriage is also associated with gift exchanges. But in this
situation the woman is not a part of the exchange of valuables. She is not
released from her group by the receipt of the gifts. Thus the exchange of
gifts is of secondary importance in matrilineally organized societies.
a. Bride-price.—As a technical concept of adat law, bride-price in
volves payments from the man’s family to the girl’s with the object of in
corporating her into the husband’s sub-clan, and her children, too. Presents,
or any other marriage gifts, which have a different effect must be called
something other than bride-price. Bride-price, in a patriarchal system, is
therefore a cash transaction. (See p. 116.)
Adoptive marriage is a contrasting form that takes place within the
patrilineal framework. Its purpose is to adopt a son-in-law into the
clan c f his wife, so that the wife’s father gets a “ son” and his daughter’s
children belong to his clan, so to continue his line, and not the erstwhile
clan of the son-in-law. (See p. 172.) In scattered instances we have reports
of the release of the husband by his clan to his wife’s in a manner similar
to that which occurs in a transfer based on bride-price: a bridegroom price.
These examples come from Bali and Sumba. Sometimes there is a formal
adoption of the groom into the bride’s patrilineal clan. (See p. 177.) How
ever, the general practice is to admit the husband into the bride’s patrilineal
clan without calling for any payments. Nor does it matter, if the husband
is an alien, or not.
On page 172, we explained how the regular occurrence of bride-price
with adoptive marriage results in the development of an alternating uni
lateral kinship system, while adoptive marriage, as a regular form, produces
a matrilineal system. This is not to maintain, however, that matrilineal
systems always originate in this way. But it would seem to be the case in
Saparua and among the matrilineal Semindoeans of Palembang, who are
descended from the patrilineal Pasemahans.
There is but little c.iiTerence between marriages based on cash bride-
price and marriage with postponed payment, coupled with suitor service.
In this type of marriage, man and wife cohabit, and the husband wor_*s for
his wife’s family until the bride-price is satisfied.
Also similar are exchange marriage, in which dowry and bride-price
cancel each other.
And finally, a marriage in which a man takes the widow of his deceased
“ brother” (clan member), called substitution marriage,3 or a woman re
places her dead sister, the so-called continuation marriage,4 is close to
bride-price marriage. In neither of these is a new bride-price paid.
Bride-price marriage with or without other payments and adoptive
marriage all presuppose a unilateral relafonship system, in which the
lineage or sub-clan forms an autonomous community.
In some cases, where the sub-clan no longer constitutes an autonomous
community, a patrilineal system may still be discernible in the incest taboos
3 [In D utch, vervanghuwelijk. T h is is the /evirate o f A nglo-A m erican termi
nology.]
4 [In D u tch , vervolghuwelijk. T h is is the sororate of Anglo-Am erican term i
nology.]
MARRIAGE LAW 187
and the way in which the family name, offices and possessions are inherited,
even though there may also be such bilateral traits as equality o f husband
and wife in ownership of property acquired after marriage.
T he effect of bride-price in patrilineal systems, we have seen, is to
bring the children into the husband’s line. In Central Celebes, bride-
price is believed necessary to prevent the children from becoming idiots,
and its payment gives the father a right in the children equal to the
m other’s. This results in bilateralness. In case of non-payment o f the
bride-price, the children stay outside of the father’s line entirely. When
a husband dies without having paid his bride-price, his relatives get the
sum together in a hurry in order to forestall the widow’s new husband
from getting the children, should he pay the bride-price before they do.
In most regions where bilateral organization prevails, the marriage
forms, which have been discussed up to this point, are without functional
basis. Still, marriage payments are found almost everywhere. Some of
these payments definitely have the character of bride-price surviving
from a former patrilineal system. Or, they may represent exchanges orig
inating in a unilateral system, but now possessing a functional significance
of their own, which can be understood in its present bilateral environment.
Such payments should not be called bride-price. I f they go to the woman
personally, they should be called marriage portion, like the “ mas kawin”
of Moslem law, which is universally accepted by Mohammedans.
Picking up a few additional points that should be made concerning
bride-price, there is the matter of native terms for the practice. These
a r e : “ beuli niha” (Southern Nias), “ unjuk” (Gayo lands), “ unjung” ,
“ sinamot”, “pangoli”, “ boli”, “tuhor” , (Batak lands), “jujur” (southern
Tapanuli and South Sumatra), “ seroh” (Lampongs), “kule” (Pasemah),
“ wilin” , “ beli” (Moluccas), “ belis” (Timor), “patukun luh” (Bali). To
the extent that these words are derived from the same roots as the words
for “ buying” , bride-price and land transactions are both cash deals, by
means of which something is detached from a living community without
disturbance to the essential equilibrium.
The Malay “ wang antaran” , the Javanese “tukon” , and similar
marriage payments no longer carry a connotation of bride-price. T he
Atjehnese “ jinamee” , the “pekain” of the Dyak tribes o f the Upper

Kapuas River, the “ sunrang” and “ sompa” of South Celebes, and the
“ hoko” of the Minahasans have apparently become mere marriage
portions.
The marriage payments of the Dyaks have in general the character
of reciprocal gift exchange, without the quit-claim aspect of bride-price.
Even the preserved piece of the husband’s umbilical is added to the
woman’s, in order to symbolize the new unity of the family. They are
kept together with the goods which were brought in as marriage gifts.
The children of a family are buried in the coffin of the mother, unless
the father makes a special additional payment. Then his children’s bones
go into his box. This additional payment deserves to be called a
bride-price.
The marriage portion, such as mentioned above, is for the most part
a token in validation of marriage. Bride-price, on the other hand, is hardly
to be considered a validifier, since without it (in bride purchase marriages),
there is no marriage at all.
Social status, the manner of collection and distribution of the bride-
price, and numerous other elements results in considerable local variation
in the institution.
The bride-price frequently consists of things of mystic value—
head-hunting trophies, slaves, land, porcelain, fabrics and gold. In recent
times, money is the big item. The economic valuation of the goods paid
in bride-price give it a disagreeable character, since it imparts a commercial
quality to the marriage, even though the old patriarchal idea of woman
as a commodity” of low social status has just about disappeared.
The attempts of the Dutch government, based on erroneous ideas,
to forbid bride-price, and omission of it from the colonial legal systems
have failed to drive it from the legal life of the villages, or the upper classes.
To what extent the rates fixed by the princes or the Government have
been effective is uncertain.
Certain portions of the bride-price are almost always ear-marked for
certain groups of the girl’s relatives. They remove the girl from each of
her relationships with her kinsmen, and they specifically compensate
MARRIAGE LAW 189
their loss. They may also be said to be given for “the ascension o f the
ladder” , or “ binder of the families” , or “ in place of the knife which cut
her umbilical” . The amount of bride-price always varies in accordance
with the social status of the woman. (See p. 62.) Even in places where
class distinctions are slight, poor people must not pay more, or receive
more than is their customary sum. That would be an unwarranted invasion
of the rights of the higher classes. Such would endanger the stability of
the community.
Usually, a girl’s bride-price is fixed as equal to the sum paid for
her mother. The price for a maiden always exceeds that of a divorcee or
widow. When a marriage involving a new inter-clan relation is being
arranged among unilateral people, the price is much higher than
ordinarily.
When the old-time items, such as heads and slaves, called for in
bride-price become unobtainable, or the bride-price has risen all out
o f proportion to economic possibilities, the old items and amounts are
called for in words, but are replaced by objects of lesser value or by cash.
Bride-price following abduaion is higher than normal. After an
elopement it is usually lower, although sometimes it is higher.
Who gets the bride-price together, and who receives it, depends
on the nature of the society. Som etim es a large group of relatives, perhaps
the entire clan or tribe, contributes. But sometimes it is only the parents
o f the boy. In many tribes, contribution gives the right to share in the
enjoyment of the bride-price received and to demand aid in payment
of bride-price when the time comes. This is also a phase of clan inter
action.
Bride-price has social significance beyond the mere legal consequence
of change in the woman’s status and the inclusion of the ensuing children
in the husband’s kin group. The requirement of a refund, if the marriage
breaks up, lends great strength to the marital bond.
In the Pasemah and in Bali part of the bride-price may be returned
to the giver. This is also customary among the Atjehnese for the marriage
portion, and it also takes place among the Minahasans and others. Some
Dyak tribes, and in Pasemah, Halmahera, Timor, Java, and among the
To raja, the man intentionally remains indebted for a part of the bride-
price or marriage portion. On Ambon the wife gives a small annual present
to her family. These practices all signify the continuance of a certain tie
of the woman to her kin group, even after marriage.
In Sumba the wife’s group gives a reciprocal gift of a cloth with gold
interweave, a buffalo or horse, as is true of Roti. This gift is presumably
to be considered as a type of commerdal exchange, like the “ ragi ragi” 0
of the Toba-Bataks. In Borneo, however, the common offering of recip
rocal wedding gifts apparently is for the purpose of restoring the magical
balance through neutralization of the magical effects on the woman’s
relatives that come about through her association with her new husband,
just as the man counteracts the woman’s effects by his payments.
A woman’s dowry is generally the economic equivalent of the bride-
price. In patriarchally inclined societies, the dowry becomes the m an’s
property. Elsewhere, it usually remains the woman’s, although in a few
tribes it is considered as the spouses’ joint property. Although it is the
economic equivalent of bride-price, dowry has a very different character
in adat law. It amounts to an assignment of a bit of the joint family prop
erty to which the girl was jointly entitled before marriage extinguished
her claims. (See p. 2-2.)
b. Suitor service.—As we have said, suitor service is a variant of
marriage with bride-price. It is permitted as a substitute for full and im
mediate payment of the bride-price. Suitor service is variously known as
“ mandinding” in Batak, “ ering beli” among the Peminggir of the Lam-
pongs, “ nunggonin” in Bali. The husband is not taken into the wife’s
family, and the children usually belong to the mother’s group, not the
father’s. But after full payment of the bride-price, they are transferred
to his line. However, in the case of suitor service (or living-in marriage)
among the Toba-Bataks, the children belong immediately to the father’s
“marga” .
A form of suitor service, in which the husband supports certain 'of
the wife’s relatives, occurs among the Peminggir ip the Lamp on gs, and
is called “ngisiq” . Suitor service in Bali can have a similar content.
5 [A gift from the father o f the girl to the father o f the boy on engagem ent].
MARRIAGE LAW 191
South Tapanuli presents an interesting aspect of suitor service when

such a marriage breaks up before the bride-price is worked off. One of
the daughters is given to the wife’s family, so that when she marries, her
bride-price can be considered as that due on her mother.
Where general conditions make payment of bride-price impossible,
suitor service can sometimes gradually become adoptive marriage, so that
marriage with bride-price is displaced entirely.
c. Exchange marriage.—Exchange marriage is customary where
there are reciprocal marriage relations. But in the case of asymmetrical
marriages, exchange is naturally impossible. When we find exchange
marriage forbidden or feared in a bilateral kinship system, we may look
for an out-moded system cf marriage in which there was some reason for
such a taboo. For instance, in Java any arrangement is feared and thought
undesirable by means of which the parents of a married couple (besan)
come into the position of being parents of the couple in a double sense.
A double “ besan” relationship brings bad luck. Sometimes, however, as
in Bagelen, it is much to be preferred, if the parents become double
ccb6san” to each other. But this is so only if an eldest child does not marry
a youngest one and a youngest one an eldest. On the island of Ambon
exchange, or reciprocal, marriage is given preference. This is also true
of the To Lainang in the eastern arm of South Celebes, and on Savu, and
in New Guinea and elsewhere. A form of exchr.nge marriage, in which
married men exchange their wives, is reported sporadically in Borneo,
but appears to be of no great importance.
d. Continuation marriage (sororate). The sororate, in which a
man marries the sister of his deceased wife without additional bride-price
(i.e., continuation marriage, is known as tungkat in the Pasemah. In
Central Java it is called “ karang wulu” : sister-in-law marriage.
e. Substitution marriage (levirate).— Its counterpart, the levirate,
or substitution marriage,6 occurs when a widow, who remains in her
husband’s family, marries his classificatory younger brother. It typically
c In Toba-Batak the term is “ pareakhon” ; in Palembang and Benkulen> “ ganti

tikar” or “ kawin anggau” ; the Pepadon peoples o f the Lam pongs speak o f “ nye-
malang” .
fits into patrilineal systems as a function of bride purchase. Sometimes

it serves the purpose of begetting a son as a successor of the deceased
husband through the widow. It may be that the “medun ranjang” of Java
is a reminiscence of this. The levirate may be a highly desired institution
for the widow and her offspring, but it can run into strong personal
resistances.
f. Matrilineal marriage.—A marriage in a matrilineal system is
not coupled with such payments as bride-price or marriage portion. The
husband remains in his own kin group. But as an individual allied by
marriage (urang sumando in Minangkabau) he is admitted to association
with his wife’s family. At the conclusion of the marriage, he is fetched
from his home, where a brief ritual of release takes place, and he is forth
with brought “home” , i.e., to the household of his wife.
g. Adoptive marriage.—Adoptive marriage has already been men
tioned a number of times (pp. 63, 172, 174, 185). In such marriages,7
the biological relation of child to mother attains a social meaning such
as is generally associated structurally with the relationship to the father.
Among some peoples the spouse is frequently chosen from a lower class
or an alien group, but in general the choice is taken from within the same
tribe and class. Rarely, we find reports about a payment, which releases
the man from his kin group, as the payment of a thousand doits or a pillow
and rice (as in Bali) or the payment for a man who is transferred from his
“kabisu” (clan) to that of his wife in Sumba.
Among the Pepadon groups in the Lampongs, an adat dignitary
(penjimbang), whose head wife (bini ratu) has produced only daughters,
can maintain his position for his own family line by havinfo his daughters
undertake an adoptive marriage. This may take several forms. First, the
chief’s nephew marries his daughter and becomes a son-in-law; as such
he gets the chief’s position and inheritance and passes them on to his son.
Second, an outsider may be adopted into the chief’s family, marry the
girl, and carry out these functions as a son-in-law. Third, the husband
7 T h is type o f marriage is called “ anggap” (Gayo), “ ssmendo am bil” , “ anaq” ,

“ nangkon” , “ tjambur sumbai” , etc. (South Sumatra), “ kawin ambil piara”
(Ambon), and “ nyeburin” (Bali).
MARRIAGE LAW 193
may transfer into his wife’s family, but he gets his father-in-law’s status
and inherit? nee only in the sense that he administers it for his wife and
son. Fourthly, the husband does not transfer into the wife’s family, except
insofar as he is admitted as the procreator of offspring. In only one group
(among the Pepadons), the Sewo Mego, is the marriage of cousins blocked
exogamy.
In the case of the lower classes, where inheritance is the sole concern,
similar possibilities exist, but under different names.
In Bali, too, when a man has daughters, but no sons, there are the
two basic arrangements : adoption of the son-in-law ?s the bearer of the
rights, and his inclusion only as the procreator of the daughter’s progeny.
Conversion of an adoptive marriage into a bride-price marriage or
a bilateral one is possible in South Sumatra, for example.
T he adoption of a girl into her husband’s family, when the inheritance
of heirlooms must be through a daughter, is reported as “ semendo-
ngankit” marriage from the Semendo region of South Sumatra. I t also
appears on the frontiers of the Minangkabau-Mandailing territory. Here
a man, whose family has run out of women through whom the lineage
m ust be continued, pays a bride-price for a Batak woman, whom he then
adopts into his Minangkabauan family.
3. CHILD MARRIAGE
Marriages between biologically immature children are permissible

under adat law in most law-areas. They are absent in some places, however,
as in Korinchi, on Roti, and among the Torajas. In Bali, marriage of a
pre-adolescent girl is punishable.
Mohammedanism sets up no objection to child marriages. Com
monly, in child marriages the Mohammedan marriage takes place first,
and the marriage in accordance with adat law takes place only when
cohabitation is possible. The great weight which kin groups place on the
bond established through marriage makes it understandable that even
unborn children may be promised to a desirable partner and are bound
in marriage when very young.
When the natives accept Christianity, it is a different thing. Nubility
is required for marriage. Article 4 of the Staatsblad, 1933, No. 74, of the
Regulation for Christian Natives of Java, Ambon and Minahasa formulates
the same requirement.
In child marriage neither party is full-grown. This must be kept
distinct from the kind of marriage in which the husband moves into the
girl’s household and works for his parents-in-law, but postpones marital
cohabitation with his girl-wife until she is of age.
4. PO LYG YNY
Marriage to several wives at the same time is permissible among

most of the Indonesians, but it is rare for the great mass of the people.
I t is common only among the higher classes.
Prohibition of polygyny is infrequent. The Tnganan Pagringsingan
of Bali are one people who do not countenance it.
Acceptance of Christianity entails monogamy, and monogamy is
legally imposed on Christian natives by the ordinance cited above. M oham
medanism imposes a limit of four wives at any one time.
I f a man’s wives come from a lower class than he, they take the position
of secondary wives. The head wife is of the same social class. Even if a
lower class woman is married first, she has secondary status and will be
outranked by the wife of a later marriage, if she is of equal class status to
the husband. Usually, only the children of a head wife, or her adopted
children, have full rights to inheritance or succession to the office of the
father.
In plural marriages, where each wife has her own house and lives
separately with her own children and forms a family with its own family
possessions, each family remains entirely separate from each other.
5. INFLUENCES OF ISLAM AND CHRISTIANITY ON MARRIAGE LAW
Whenever Mohammedanism or Christianity is accepted by a people,

living under native law and custom, a tension in marriage law results.
There is a conflict between the deeply rooted postulates o f native magico-
MARRIAGE LAW 195
religious conceptions of marriage and the religious postulates of the two

outside religions. But that is a m atter of lesser importance, because it
is gradually worked out which of the primitive elements are to be retained
along with, or within, the new World religions, and how the two are to
supplement, or influence, each other. T he real tension lies in another
factor. Islamic or Christian marriages provide an escape from the com pul
sion o f femily-group and community obligations under the adat marriages.
This possibility gives the element of human individuality a chance to
break through the bonds of traditional communal limitations. A person
can marry in accordance with Christian or Mohammedan rules, under
the protection of religious leaders, without bothering about exogamy,
preferential mating, village endogamy, or what not.
T he tremendous power of traditional thinking and the influence
of traditional chiefs and family elders work against this tendency, of
course. As a result, a great many marriages are kept in accordance with
the adat framework. Sometimes, as in South Tapanuli, there is an incom
plete acceptance of Islamic marital law, and in general, Mohammedan
and Christian leaders try to operate within the framework of the adat
system. But the Christians are prone to clash with traditional authorities
and to get out from under the old communal organization. And they are
subject to official and semi-official legal provisions of Christian marriage
law. For Mohammedans, where there are Islamic religious judges, the
legality of their marriages is measured solely by the provisions of M oham
medan law. Progressively inclined persons and recalcitrants can thus use
a strong weapon, which works effectively or poorly, depending on the
individual’s convictions. This is just another of those factors which make
inroads upon the authority of the adat chiefs. Familiar enough are the
cases o f Batak youths, who have married contrary to adat law in Islamic
fashion when away from home. The Minangkabau face similar difficulties.
And in South Celebes the crime of abduction is made into an accepted
form o f m?rriage by means of Mohammedan marriage.
An opening is also given for Christian and Mohammedan marriages
in the forms o f native marriage, which exist alongside of the official adat
law unions, marriages which are not full matrimonial unions in the strict
sense : namely, the “ porda dumpang” of South Tapanuli, the “ baku piara”
o f the Minahasa, and others.8
Divorce presents a similar conflict.
Now it is an extremely precarious undertaking for the legislator to
enter into this clash of social forces. But at times it may be just as dangerous
to let these forces go their own way. A modest attem pt ^t control is effected
by Article 4, paragraph 2B of Staatsblad, 1932, No. 482, which forbids the
Mohammedan marriage official to assist in a marriage which violates the
requirements of adat in the Minangkabau and Batak areas.
There is a general difference in the ways in which Islam and Chris
tianity influence native marriage. T he Muslim maniage is concluded
as a contract between the bridegroom and a representative (wali) of the
b r d e in the presence of at least two witnesses. The offer and acceptance
are concluded in sacramental words. The marriage portion (mas kawin)
is determined between them, and the bridegroom usually lays down the
conditional terms of repudiation, if that should come to pass. T he bride’s
father is the “ wali” . Or, if he is not available, it must be her closest male
relative in the male line. Only the father or grandfather can give a maiden
in marriage contrary to her wishes. I f no “ wali” is available, the “ pengulu” ,
or head of the M uslim priests, may act as emergency “ wali” , or the two
parties may appoint a substitute “wali’V known as “ hakam” . T he witnesses
must meet certain particular requirements. The marriage portion is a
small payment (mostly 5 gulden) from the man to the woman ; it is some
times lumped with other payments (in Java, for example, with the “ tukon” ,
in South Celebes with the “ sunrang” , in Atjeh with the “ jinamee” ), and
is then, o f course, a higher amount. It is frequently customary to continue
to owe the marriage portion. The Marriage Ordinance for Java9 and that
for the Outer Possessions,10 are not legal regulations, but administrative
instructions, which make it obligatory to invoke the assistance of an ap
pointed religious leader in case of marriages concluded according to the
d ..
8 [A union in w hich the man lives with his parents-in-law, retaining his own
name and his right o f inheritance within his own fam ily3 but his children continue
with his parents-in-law ’s fam ily].
9 Staatsblad. 19 2 9 , N o . 348.
10 Staatsblad, I 9 3 2 } N o . 482.
MARRIAGE LAW 197
teachings o f Islam. This was done for the sake of legal security and order,
under threat o f penalty against those who are remiss.
Alongside of the practice of marrying in the M ohammedan style,
marriage in the adat way may continue unaltered. Intensely religious
circles may object to it, but in the legal life of many communities, M oham
medan marriage is a constituent of the marriage process in its entirety,
in which native elements are retained and the marriage keeps its general
Indonesian character. Thus, among the Minangkabau, it is impossible
to say whether the girl’s father plays a more important role as a “ vvali”
in the Islamic sense or as the “mamaq kepala waris” , the adat represent
ative.
T he marriage law of Christian Indonesians, on the other hand, leaves
no room for an adat marriage. It tries to regulate marriage in all its aspects.
I t will countenance only those aspects of Indonesian marriage which are
strictly compatible with the tenets of Christian religion. Since it is easily
understood how effective bride-price is in deterrance of divorce, bride-
price is usually admitted as a permissible practice.
But all in all, the influence of Christianity is far more destructive of
Indonesian character and practices than is that of Islamism. This is also
reflected in areas outside the field of marriage. For example, the Ambonese
garden priest (mauwin), a functionary connected with magico-religious
systems, can still be found in Mohammedanized Hitu, while he has totally
disappeared from Christianized Ambon.
B. DIVORCE
1. DIVORCE IN ADAT LAW
Marriage is a family and lineage affair, which makes possible the

regular growth of family communities into new generations. New offspring
continue the community of kinsmen—the sub-clan, sub-tribe, lineages
and families. Marriage also confirms the existence of village and regional
communities as social entities. Marriage is a rite, like every other act which
introduces something new into the sacred and inscrutable cosmic process
of life. The transition of the newly married couple to this new community
status is ritualized. The coming into being of the new husband-wife

relation, the seeking of a position of equilibrium of the new couple in their
relation to their community and the outside world is ritualized. By his
choices o f the form o f marriage, and its related acts, the hum an being
can determine the direction of the process of growth. And he can pro
mote the hoped-for fertility by magic endeavor.
At the same time, in some law-areas, marriage as a family group
affair has the effect of confirming the mutual relationship of the two groups
o f relatives, whether it be reciprocal or unilateral.
But independently thereof, marriage is an extremely personal matter,
for it mutes two human beings for marital intercourse and permanent
cohabitation.
The various functions which have already been discussed in the
formation of a marriage need to be taken up again, because they are also
operative in the matter of divorce.
In general, the families and the community want a marriage to con
tinue. There may be conditions, however, when the families and the com
munity are interested in breaking up a marriage. In addition, purely
personal reasons may be accepted by the community. The further into
the background the community and family influences recede, the more
will other values and standards come to dominate the question of divorce.
In a patrilineal system, dissolution of a bride-price marriage means
the return of the wife and her purchase price. Barrenness (more particularly,
the failure to produce sons) and physical deformities, which interfere
with marriage, function as a community affair. Divorce on these grounds
is perfectly justifiable and is regulated by the family elders and village
chiefs. The inter-familial relation created by the marriage may be continued,
or later renewed, by another marriage, if desired. The dissolution of an
adoptive marriage on the above grounds is self-evident. T he marriage
has missed its goal. I f there is common property in such marriages, it is
divided between the husband and wife.
In Borneo, especially, divorce because of a magically dangerous
state is demanded in the interests of the community. Bad dreams by one
of the couple are evidence of the need to break up the marriage. No pay
MARRIAGE LAW 199
ments are made in such divorces. When the evil magic is dissipated, the
couple may marry again.
Adultery by a wife is a general ground for divorce. H er behavior
is an invasion o f the community interest in the marriage, as well as the
feelings of her husband, which are protected in every law- area. Avoidance
of divorce through payment of penalties is possible in only a few isolated
instances (<e.g., a few Dyak tribes). Aside from these cases, in all systems
the husband can insist on divorce from an adulterous wife iD every respect
to the disadvantage of the wife. I f she is caught in flagrante delicto, she
may be killed and no compensation need be paid her kin. I f she is not
killed, she or her kin must pay damages, which sometimes run as high
as the bride-price, and the bride-price must be returned (but in South
Celebes not the marriage portion). There are graphic expressions for
being “ thrown out of a marriage empty-handed*’—“metu pinjungan”
(Java), “ balik taranjang” (Sunda), “ turun kain sehelai sepinggang”
(Malay) and “ solari bainenna” (Macasser).
Divorce by mutual consent appears to be universally permitted by
adat law. To be sure, the family elders and judges11 will try to dissuade
divorce when there are no social grounds, such as adultery of the wife,
barrenness or bad dreaxns. As a consequence, divorce by mutual consent
is rare in some regions. But in the long run, joint deliberation as to financial
arrangements and the disposition of property with respect to the children
can always lead to a divorce. This is something quite different from two
individuals perversely going their own way. Adat law gives no social recog
nition to that kind of behavior.
It is also generally possible for one or the other o f the spouses to
force a divorce in one way or another by violation of a marriage right.
Sometimes the question of who is guilty controls the right of demanding
a divorce. Thus in Pasemahan bride-price marriage, if a husband violates
the adat rules by cutting the web on his wife’s loom or snipping off her
hair, she alone can claim the divorce. Elsewhere, it is theoretically impos
sible for a woman to demand a release from a bride-price marriage, but
she can usually create situations by which she gets her way. But the question
11 [Apparently, the village chiefs sitting as a court].
of guilt controls the effect of the divorce on the disposition of property, as

to who has to pay damages for improper conduct, whether the bride-price
has to be refunded or can be kept (as damages by the wife’s family).
Because of this, spouses who are at odds with each other try to force the
opposite one into a position of guilt. The husband will go off on long
journeys; the wife will indulge in provoking behavior. The wife will
frequently go on a visit to her parents and not come back. A lengthy period
of separation precedes the divorce action. Finally, after prolonged attempts
to keep the marriage going, the chiefs have to decide the question of cul
pability and dissolve the marriage. The person who attempts to extort a
divorce solely because of a one-sided aversion, without a justifying motive,
is treated as culpable. This is true, if it is the husband in a bride-price
marriage. But the wife, who dissolves an adoptive marriage in this way,
is not penalized.
In some tribes, as the Bataks and West Torajas, completion o f divorce
is symbolized by an overt act of dropping a bamboo three times, chopping
through a rattan, or something of the sort.
2. THE INFLUENCE OF CHRISTIANITY AND ISLAM ON DIVORCE
The native rules of divorce are now rarely unmodified by the two
great religions. In two respects, Islam and Christianity are at one in their
effect on divorce. In the first place, they both condemn it sharply. In the
second place, the rules of both religions deal with the personal side of the
dissolution of marriage and do not treat marriage as a communal affair.
As a result, the prescriptions of these religions undermine the regulatory
and conservative force of intervention by the family elders and village
chiefs. Yet, notwithstanding the similarity of their starting points, Islam
and Christianity exert contradictory influences on divorce in accordance
with adat law. They do this in three respects. Generally speaking, the
Christian rules reduce the actual possibilities of divorce; Muslim regula
tions increase them. The Cfrrstian regulations place husband and wife
on an equal footing in reference to the grounds for divorce and divorce
proceedings. Mohammedan regulations give the husband far greater liberty
than the wife. Christian rules always call for government intervention ,
MARRIAGE LAW 201
divorce is almost always a matter for judicial decision. Islamic rules

create the possibility c f divorce without intervention o f the authorities.
Statutory intervention, as the secular regulation of divorce for the
Christian Indonesians in Java, Ambon and Minahasa, and the control
o f registration of divorce of Mohammedans is an additional factor in the
total picture of divorce for Indonesians.
T he various postulates and divergent possibilities o f adat, Chris
tianity, Islam and Government regulation combine in all sorts o f ways
in the various law-areas and spheres. This is manifest in the ways in which
Islamic divorce rules are handled in actual practice, and in the concessions
which Christian marriage rules must make to the demands of reality.
' 3. MOHAMMEDAN DIVORCE

a. The talaaq.—The repudiation of a wife by her husband is called
the “ talaaq” . When a man casts off his wife, the “ iddah” period sets in.
This is a span of three menstruations, or one hundred days. Or, if the
woman is pregnant, of forty days after confinement. During the “iddah” ,
a woman m ust not remarry, and she is still counted as one of the wives
in the limit of four wives imposed by Islam. The woman has a right to
maintenance (nafaqah) by her ex-husband. And the man can revoke his
“ talaaq” and take the woman back (rujuq). The same rules hold for a
second “ talaaq” . But in the event of a third one, he loses the right of
changing his mind.
Although a Mohammedan husband can throw off his wife as a one
sided action, and this happens thousands of times, there are still regions
where the man consults with the kin group and chiefs before he exercises
this privilege. Sometimes, the husband does not use the Mohammedan
institution, but seeks a divorce from the judge.
b. The chuV.—When the husband is induced to renounce his wife
upon her request and receipt of a payment from her, we have the “ chuT ”
or “kuluq” : removal of a garment. The wife’s payment is called “penebus
talaaq” in M alay; “pemanchal” (repudiation instrument) or “pengawal”
(equivalent) in Javanese. Her payment may be in cash. But it can also be
a quit-claim on her share of jointly acquired property. Or it can consist
o f renouncement of any unpaid portion of her bridal gift (maskawin—

see p. 187). Such a divorce precludes the possibility o f remarriage. Yet
it is followed by an “ iddah” period, during which the husband has to
support the woman. This practice is for the most part a Mohammedanized
disguise for the simple Indonesian type of divorce on the wife’s initiative
when there is no guilt on the m an’s part and the wife returns the bride-
price or marriage gift. T he South Celebes form of this is the “ pammali
kateaang” , verbally : buying disaffection. In normal cases, the woman
repays the marriage gift as the “price of her being no longer willing” ,
and for this she gets her divorce.
A distinct feature of Indonesian origin is the occasional possibility
(in various places) of the wife summoning her husband into court to force
him to take a sum equal to the bride-price as the price of divorce. I f the
husband refuses, the judge invokes the “ talaaq” , or simply dissolves the
marriage without “ talaaq” . He states a reasonable sum, which the woman
leaves with the judge to be given to her ex-husband. In Solo, this action
is called “rapaq lumuh” , a declaration that the wife is against the marriage.
In the interior of Benkulen, divorce forced by a payment from the wife
is called “membeli talaaq” , while in Salayar they call it “ pangalli
kaandaang” , the price for being unwilling to remain a wife.
c. The ta'lieq.—Divorce, resting on a declaration by the wife,
that the conditions of her repudiation by her husband have been met,
is generally Indonesian in character. This is the “ ta’lieq” (“taqleq” ).
I t is true that the possibility of making a repudiation dependent upon the
fulfilment of certain conditions rests on Islamic law. But permissibility
of initiation of divorce action by a woman rests in adat law. In practically
every Mohammedan marriage, the man declares that if he leaves his wife
for a given number of months without providing for her, or if he does
any other specified deed that may be disagreeable to her, she may, if she
wishes, complain to the Muslim authority, and she shall be released from
the marriage.
In the regions which recognize religious judges, such a one is the
official to whom the wife must take her complaint. Otherwise, it may
be the native judge, or, as in the Lampongs, or Minahasa, a religious
MARRIAGE LAW 203
official. T he authority should really hear two witnesses and determine

for himself that the conditions of repudiation actually exist as they were
expressed by the husband. But many judges follow a different course,
and simply dissolve the marriage on the ground of the husband’s conduct,
which in itself is an Indonesian aspect of this divorce practice. The privilege
of “ rujuq” (see p. 201) is sometimes explicitly ruled out in this type of
case. And it is occasionally stipulated in the husband’s declaration that
any unpaid “mas kawin” shall be released as indemnity, so that the
“ talaaq” (which has become invalid) is of itself a “ chul” ’. Thus
“ rujuq” is ruled out.
Consistency with the principles of adat law is also embodied in the
very nature of the conditional stipulations of the “ta’lieq” : “if 1 sever
the web on my wife’s loom”, or “if I snip off my wife’s hair” . 12
d. The fasch.—The “fasch”, or “pasah”, is another Islamic in
stitution, which has been modified in application, and so molded more
effectively into the milieu of adat law. “Pasah” is a dissolution of marriage
by a judge on the ground of infmnity, present at marriage, such as the
physical inability of the husband to provide “nafaqah” (maintenance)
for his wife. But in the Indies, there are many instances in which the wife
is permitted to demand “pasah”, because her husband has deserted her.
On complaint of the wife, the husband is summoned and (even if he does
not appear himself) he is given the chance to prove within three days that
he can support his wife. If, after three days, the wife appears before the
jud6e again with proof that her husband has not advanced support, the
marriage is forthwith declared dissolved by “ pasah” . As a form of divorce
at the request of the w fe, this-is therefore an Indonesian type of marriage
termination.
Apostacy from Islam does not in itself give the backslider the right
to be automatically released from a Mohammedan marriage. It is possible,
however, that a judge may dissolve a marriage on demand of one of the
spouses when, under certain circumstances, it is clear that the apostacy
is not for the purpose of getting out from under the marriage.
12 C f. th e “ laran g an k u le” o f th e P asem ah , p . 199.

The other institutions of Islam are not sufficiently important in their

effect on Indonesian life to be mentioned here.
We should note, however, that the use of coercive arbitration (hakam)
in cases of hard-headed discord has been approved by the Court of Islamic
Affairs, whereas, previously this practice was supported only by a weak
opinion.
The most important effect of the penetration of Mohammedan divorce
is that the adat procedure of the chiefs, in conjunction with the family
groups, to judge, prevent or regulate divorce, is menaced and destroyed.
This produces a social tension similar to that we discussed in relation to
the process of getting married. (See p. 195.) By use of Mohammedan rules,
it becomes possible for the individual to attain his personal desires and
whims abruptly over the demands of communal society. When a man,
who is party to an adoptive marriage, pronounces the “ talaaq” , we have
an eloquent demonstration of such a social disturbance.
4. C H R IS T I A N D IV O R C E L A W
In keeping with ecclesiastical law, divorce is impossible for Cath

olic Indonesians. Nevertheless, it is my opinion that Catholic natives can
obtain a secular divorce in accordance with the unwritten rules of adat
law (as is the case in so many legal environments where there is written
law). Protestant Indonesians are inclined to recognize several serious
grounds for divorce : adultery (by either party), serious mistreatment,
malicious desertion and, sometimes, barrenness. In Minahasa, divorce
is granted on mutual consent and joint request. In Ambon it results from
prolonged actual separation. Usually, the Superior Native Court or the
native judge is regarded as competent to recognize applications for divorce.
In Java, a church council was authorized to do so for a time.
Under the Ordinance of February 15, 1933,13 legal regulations pro
viding for the secular divorce of all Christian Indonesians in Java, Madura,
Ambon and Minahasa are found. Incurable dissension is one of the six
recognized grounds for divorce, but not barrenness. Childlessness is only
indirectly a ground, if it causes incurable dissensions. Consistency with
13 Staatsblad, 1 9 3 3 , N o . 74.
MARRIAGE LAW 205
adat law is sought in the requirement that the judge examine (consult with)
the relatives and friends of the couple to determine if the dissension is
incurable.
5. CO N SEQ UEN C ES OF D IV O R C E
The consequences of divorce have already been discussed in part.

After divorce the wife is free to contract a new marriage. N either according
to adat law, nor according to the law of Islam, can she demand support
from her former husband, but she may do so according to Christian law
and by virtue of Article 62 of the Ordinance of 1933. Children always
go with the mother, so long as they are babies (below the age of t*vo to
three years). After that, they remain either with the kin group to which
they formally belong, or, if the system of relatives does not entail such a
close relationship, they go to the parent to whom they are assigned in the
divorce settlement. Guilt on the part of one of the marriage partners gives
the other one greater claim to the children. The preference of the children
themselves is often important. Also important is the m atter of which of
the parents supports the children. The father is particularly obliged to
provide that support (also during the time they are babies). In the case
of bilateral kinship organization, however, the mother, who brings up
the children and who is capable of supporting the children, may be made
responsible for doing so, in addition to the father. If, in case of conflict,
decisions have to be made, the interests of the child are the most important
factor.
T he influence of guilt on the determination of property disposition
has been mentioned above, and the consequences of divorce with respect
to the property will be repeatedly mentioned in the treatment of the law of
marital property.
C. M A R IT A L P R O P E R T Y
The families that come into being by marriage require a material

foundation. The husband and wife (with their children) must carry on life
jointly as a family unit, and for that purpose they must have goods at their
disposal. Where the kinship unit has great social significance as a com
munity, family property is distinguished from the kin group property.
Sometimes the boundaries are weak and evanescent; sometimes distinct
and clearly visible. Where the kin groups do not occur as organized units,
the families with their possessions are the delimited nuclei of the commu
nities, but nevertheless the close kin group relationship extends over the
families and exerts an influence on the legal status of the family property.
Counter to the kin groups as communities, the family emancipates
itself; it lives in a daily equilibrium with these larger groups, but also in
a certain tension. In more advanced relationships it is in process of
wresting itself free, or has wrested itself free, from the closed character
of the organized kinship group. Vice versa, the claim of the kin group as
an unorganized group of relatives asserts itself again and again. By the law
of matrimonial property the family possessions are kept in their place be
tween the two poles of unequal strength, the kin group and the family.
Generally speaking, a fourfold distinction can be made with respect
to family property : (a) property that is given to or has accrued to one of
the spouses from his or her kin group as a result of partition or inheritance;
(b) property acquired by each of the marriage partners for himself, before
or during the m arriage; (c) property acquired in common by the marriage
partners during the marriage; (d) property presented jointly to the couple
at the time of marriage.
1. Inherited property.—It is a generally valid principle of Indonesian
adat law that property obtained from one’s own family by inheritance or
partition remains in the native possession of that spouse from whose fam
ily the property originated. Such property is called “ pimbit” (Ngaju
Dyak), “ sisila” (Macasser), “ babaktan” (Bali), “ asal” , “ asli” , “ pusaka”
(Java, Malay), or “ gana” , “gawan” (Java). In case of divorce the posses
sions accordingly remain with the marriage partner possessing them , and
after the death of the native possessor, property does not pass outside the
kin group; especially, it does not pass by inheritance to the other spouse,
and perhaps for that reason, in Java it does not pass to adopted children,
either. People say that this is in order that the property shall not get lost.
Among the Minangkabau, kin group property can never be assigned by
MARRIAGE LAW 207
partition, and it cannot pass by inheritance to an individual m em ber of

the extended family group. As to this matter, the small family, or the branch
of the family group, stands out but feebly, in consequence of the right of
utilization of the extended family possessions.14 But nearly everywhere
else, the separateness of kin group property, which has been made family
property, is sharper. Possessions, which are given to the marrying woman
as wedding outfit, sometimes (among the Pasemah, for example) remain
her possessions, even in a patrilineal system, and pass by inheritance to her
children; and in the event of her dying childless they pass to her husband.
Although, in case of divorce, the wife takes them bacK with her to her own
family group. Lands, which were given to the woman as a bridal present
among the Bataks, pass to her husband (and to her) in native possession,
although every disposal embracing them requires consultation with the
wife’s extended family. I f there are children, then they are the natural
successors in the following generation to the possessions inherited through
the parents or received by way of partition. (See pp. 214, 223). Children
are the focus where the differentiated family property o f the parents joins
as property of one kind (namely as “ barang asal” ). Among the Dyaks, the
concept of “pusat-a” comprises in addition to inherited possessions those
objects (of a magical nature) which ODe obtains ; for example, as marriage
payment or as booty, and which are predestined to be transferred as in
heritance to the heirs. In contrast with “pusaka” in the general sense of
“ sacred possession” , are the possessions acquired by individual labor, by '
no means “holy” for the obtainer, which the Ngaju Dyaks lump together
under the term “nukar” , and which elsewhere are sometimes called “pen-
charian” .
2. Personally acquired property.—The possibility for a married
man or a married woman to own possessions for himself or herself per
sonally, during a marriage, is connected on the one hand with the absorbing
power of the common small-family property, and on the other hand, with
the absorbing power of his or her kin group property. Where the kin group
bond is strong, newly acquired possessions are ear-marked from the be-
14 The “ ganggam b a u n tu iq ” o f th e “ h arta p usaka” (see, p p . 107 a n d 139),
sim ilar to the fam ily rig h t to “ pusaka” goods in A m bon.
ginning for the acquirer and those of his relatives, who with him form the
social unit, unless he or she can leave them to his or her own children,
who belong in that same kin group union. According to adat law, the other
spouse is denied ownership of such property. But, naturally, he or she
shares in the advantage of the proceeds therefrom, as a member of the
family. Disposal of such goods requires the approval, or at least the knowl
edge of, the “ waris,” the family group members. Both possessions ac
quired prior to the marriage and possessions acquired durinfc the marriage
may fall in this legal status.
Thus, for example, the property, which is acquired by a Batak family,
belongs to the husband in his kin group relationship, in the sense that the
wife or her family car) never lay any claim to a portion of it for herself or
itself, although, during the marriage, the wife shares in the benefits of the
property. A Batak wife may, to be sure, hold possessions of her own, the
land (tano or saba bangunan) presented to her as a girl by her father. But
these possessions fall under the heading of property assigned in partition,
and thus remain connected (albeit by an elastic bond) with the kin group
property of the wife’s family. Thus, on the one hand, the extended family
tie limits the man or the woman in the possessing of individual property;
on the other hand, just this fact of being bound to the family group com •
plex prevents an accrual of possessions to the small-family estate. Among
the Minangkabau the “harta pencharian” , the personally acquired prop
erty, both of the wife and of the husband is subject to the claim of family
group property. T he small-family property is able to offset this only if the
husband and wife both participated in the acquiring of the property (except
for the shifts in adat law which will be mentioned below).
Aside from the limiting action of the kin bond, property, which was
personally acquired prior to marriage, continues to belong to husband or
wife personally, just as debts contracted prior to marriage remain personal
debts. In South Sumatra, such possessions are called “ harta pembujangan”
(of the husband) and “harta penantian” (of the wife). In Bali, they are “ guna
kaya” of both the husband and wife.
But if acquired during the course of the marriage, such possessions
usually become the joint property of the husband and wife. Yet there are
MARRIAGE LAW 209
circumstances under which property acquired during marriage becomes

the personal property of one of the marriage partners. In Atjeh, for example,
the income of the husband belongs to him personally, unless the wife has
provided the family some material basis in the form of a residential com
pound or a garden, or unless she gave him subsistence on a journey. (Could
this be a ratiocination on the part of the community against the law of
Islam , which does not recognize her ?) In West Java, for example, if at the
time of marriage the wife was rich and the husband poor, the int ome during
marriage goes to the woman personally. But among the priyayi class in
Java, it seems to be assumed that the receipts of the husband are for him.
Finally, the goods or money which were presented by her parents to the
wife, in connection with her marriage (not in the form of partition, dowry,
etc.), generally continue to belong to her, and usually remain her personal
property. Where a marriage gift to the wife cccurs among the marriage
payments, such as the “jinamee” in Atjeh, the “hoko” among the M ina-
hasa, and the “ sunrang” in the largest part of South Celebes, that property
or money remains the property of the wife. In like manner, the presents,
which she receives from her future husband or from family members as a
part of getting married remain her own property, for the most part. In
Atjeh this is true only of the defloration present and the seventh-day pre
sent. But it holds for the penalty, which (in Borneo, for example) the one
spouse has to pay to the other because of an offense.
3. Marriage property held jointly by husband and zvife.—T he rule
that property acquired during marriage is held jointly by husband and
wife is just as common as the rule premised above with respect to “ asal”
property, which remains the property of the kin group. Joint ownership
forms an estate to which both husband and wife each have a claim, in part,
in case of divorce. It is a great exception if there is no provision at all for
such joint property. It is only among patrilineal local groups that the kin
group property of the husband (in case of a bride-price marriage) or of
the wife (in case of an adoptive marriage) leaves no room for building a
joint estate. However, it is possible to observe the tendency of weakening
kinship bonds., resulting in the strengthening of the small-family posses
sions. And only in those cases in which (outside of kinship group influence)
one of the spouses has a definite personal superiority, as ip the Sundanese

marriage of a rich woman with a poor man (nyallndung ka gelung), or
vice versa (manggih kaya), does this superiority prevent the development
of a common estate.
Moreover, practically everywhere each family possession consists
in part o f “harta suarang” (Minangkabau), “ barang perpantangan” (Bor
neo), “ chakkara” (Buginese and Macasser), “ druwe gabro” (Bali), “ barang
gini” , “gana gini” (Java), “guna kaya” (Sunda).
Occasionally, a differerce in the extent of the estate also reflects a
difference in force of attraction of extended family property. Joint matri
monial property among the Minangkabau is the most narrowly circum
scribed. Only th 's e possessions which result from the activity of both the
husband and the wife seem to become “ harta suarang” . However, even
here social change, which replaces the extended family joint-houses with
small-family homes, strengthens the tendency to joint ownership by hus
band and wife.
Ordinarily, however, the joint property of husband and wife consists
of that which was acquired during marriage, while both husband and
wife were active in behalf of the family. Eveu the last requirement may
be omitted, so that any possessions acquired during marriage are common
family property. In isolated instances a transitional condition exists, as
in Bali, where personally acquired possessions (called guna kaya) are
regarded as being owned in common by husband and wife after three
years. Thus, the trend in the field of ownership of possessions is ? shifting
of the center of gravity from the kin group to the family.
The modem practice of giving presents to the bridal couple is followed
by joint ownership of these presents.
All sorts of special legal questions arise. Fruits of personal p operty
are sometimes regarded as j }intly owned (South Celebes). But sometimes
this is so only if the spouse who does not own the “asal” property col
laborated in its acquisition. In Java, for instance, these would be the “asal”
cattle, tended by the other spouse. The proceeds from sale or barter of
“ asal” property constitute “asal” property.* I f “asal” property is used
for the needs of the family, the spouse who holds the title to it usually
MARRIAGE LAW 211
has no claim to reimbursement for the use of i t ; not even if there is a

later divorce.
Statements are frequently made about marriage property in terms
o f the burden of proof in case of controversy : “the possessions are owned
in common, unless it is proved that the wife does not do the housekeeping” .
This may have a confusing effect. Actually, the determination of burden
rests on the question of what is normal. And what is in conflict with the
normal must be proved in each particular instance.
While the marriage continues, the spouses each deal with the com
mon possessions within his or her normal sphere. In the case of important
transactions, they sometimes act together. But if the husband takes action,
the consent of the wife is presupposed and the act is valid, even though
he has not consulted her. If, however, the wife should openly oppose
one act or another, then the husband cannot act alone, save in case of
necessity. Third parties have to take this into account. T he same thing
is true in the incurring of debts. Obligations entered into by the husband
or wife must be met as family obligations through utilization of their com
mon property. Such debts are recoverable from this property, and if their
joint property is inadequate, the “asal” possessions o f the person who
incurred the debt must be used. In Macasser, “asal” (sisila-) property
may even be set aside for joint debts, in preference to the common property.
But the “ asal” possessions of a deceased person cannot be so used. If a
husband or wife should have individual debts, such as premarital debts,
then those debts are recoverable, in the first place, from the “ asal” property
of the party concerned, and, in the second place, from the common
property in its entirety. There is no such thing as an undivided share of
the husband or of the wife in the common property during the marriage.
Therefore, seizure of an undivided share for the collection of a debt is an
absurdity, according to adat law principles and practice. While a marriage
exists, the estate cannot be divided against the will of the parties concerned.
Division of marital property comes into play primarily in case of
dissolution of marriage. I f it is not evident that one of the spouses has
so misbehaved that every claim to a part of the possessions has been for
feited, or that the wife relinquished her share as indemnification for
repudiation (pages 199, 201), each of the spouses usually takes his or her
“ asal” possessions and possibly his or her share in the common matrimonial
property. This common property is either divided into two equal parts,
or at the rate of two parts for the husband and one part for the wife. This
latter basis of division appears to be an Indonesian standard for what is
regarded as the value of what the husband contributed to the common
estate and what the wife added to it. The opinion that this distribution
originates from Mohammedan law is refuted by the fact that this type of
distribution exists in regions devoid of Mohammedan influence. The
opinion that the same standard of distribution should apply in other cases
(in the case of distribution of an estate, for example) fails to recognize the
difference in principle of distribution of matrimonial property and of
inheritance. In the field of inheritance the notion of the husband’s two
to the wife’s one possibly originates from the law of Islam. It may also
be an occasional popular imitation of the distribution of matrimonial
property. But it is only rarely local adat law. In the event of death, the
surviving spouse preserves the common estate in the same manner as
during the marriage ; the surviving spouse can claim it for his or her own
maintenance. But if reasonable provision for maintenance has been made,
then partition with the heirs may follow. I f there are children, then they
ultimately inherit the estate as “ barang asal” . I f there are no children,
then after the death of the surviving spouse, the estate apparently has to
be divided between the relatives of the husband, on the one hand, and the
relatives of the wife, on the other hand, upon the same basis a? that on
which the husband and wife would have divided it during their lifetime.
If a division of possessions is effected during the lifetime of the surviving
spouse, then, for example in Java, there is no accurate calculation, but
the children and the mother or father all receive their share of the entire
estate od a footing of equality. In South Celebes, the wife, in addition to
her share in the common matrimonial property, also receives a widow’s
portion, while a husband gets a widower’s share (tawa kabaluang).
While compulsory distribution during the lifetime of both marriage
partners is everywhere precluded by adat law, distribution of the commDn
matrimonial property by husband and wife in mutual agreement does
MARRIAGE LAW 213
occur, and is operative between the spouses and their heirs. I t occurs,
either as a distribution on a footing desired by the parties themselves, or
as assignments in partition by them jointly to the one or to the other. They
may do it, 'if the husband is going alone on a pilgrimage. I t will have to
be assumed that such a distribution is not valid as against former creditors,
if it impairs their interests, and it will be held against new creditors only
if reasonable publicity is given to it.
Agreements to exclude possessions acquired during marriage from
the joint property is not known as a legal act in adat law. However, it seems
to occur now and then under Christian (Catholic) influence when it is
s p e c i f ie d in a d v a n c e that the “ asal” property shall also be common prop
erty between the marriage partners. (Article 50 of the Ordinance of
February 15, 1933, Staatsblad, 1933, no. 74.)
4. Property presented to married couples jointly.—In Madura gifts
are presented to the bride and groom, and they become property (barang
pembawaan) which is divided differently between them than the posses
sions acquired during marriage (ghuna ghana). The husband gets two parts
to the wife’s one of the “ghuna ghana” , but the “ barang pembawaan”
are divided equally.
CHAPTER X
IN H E R IT A N C E
s
r I ’'H E AD AT LAW of inheritance consists of the legal regulations which
govern the eternal process of passing material and non-material
property from generation to generation, which is tied up with various
relations already treated. The influence of other legal rules on the picture
of the law of inheritance of each law-area need only be indicated. The
right of disposal limits the inheritance of land. Land transactions such as
the pledging of land must be continued by the heirs. Rights and duties
flowing from credit transactions continue to be effective after death. The
structure of the kinship groups hss significance in the law of inheritance,
just as has the form of m?rriage. Legal acts such as adoption, adoptive
marriage, and the furnishing of a dowry are also to be regarded as acts
related to inheritance in the broad sense, mentioned above—concern for
the transfer of property to the next generation.
Inheritance must be broken down into its components. Partition
m ust be placed beside testamentary disposition and inheritance ab intestato.
Undivided continuance of the estate must be contrasted with division
thereof. Inalienable portion (in estates) must be contrasted with the right
to disinherit. Such distinctions are needful to comparative survey and
understanding of the phenomena. But at the same time the process of
analytical breakdown hampers a proper grasp of the unity of life events.
It is never sufficient in reality to ask what becomes of a particular piece
of property at the death of the owner without getting a distorted picture.
Yet it is necessary and feasible to treat the disposal of property at death
as something legally different from partition of property while living.
When treating the subject of the law of inheritance, the unity and
diversity of Indonesian adat law can be easily demonstrated. Generally
valid rules and principles can be set up, but no single rule has the same
214
ADAT LAW IN INDONESIA» 215
external form in all law-areas. The rule that at the death of a native pos
sessor, the children take precedence is only half true in the Batak la n d s ;
namely, only with respect to the sons (although in this connection the
property which has been given to the daughters m ust not be left out of
considerations). In Minangkabau, it is only half tr u e ; namely, only with
respect to the mother. Inheritance from the father goes to his sister’s
children and not to those of his wife. In the Lampongs it is only half true,
insofar as there only the oldest child inherits, although he has the duty
of treating the family of the father as his own family. T he rule that after
the death o f the native possessor the estate remains undivided under
certain circumstances brings about a different situation in the Minahasa
than among the A'linangkabau, and in Bali and Java.
T h e rules of inheritance are subject to not only the influence of social
changes, growth of the family tie, with concomitant decrease of the clan
and tribal tie, but also tc the influence of rules of inheritance of foreign
legal systems, which as a result of certain external connections with religion
are provided with an authority derived from religion, and are, for example,
applied to concrete instances by religious judges. However, this influence
is noticeable to a far less degree in case of the law of inheritance than in
the law o f marriage. Whether permanent resistance is offered to it, or
whether radical action can proceed from it, depends upon the power of
the formal law o f inheritance.
We shall discuss in the following order the continuance of the undi
vided estate, then the legal acts which accomplish or influence distribution,
then the parties entitled to inherit ab intestato, and finally, the inheritance
of particular constituents of the estate and debts. T he placing of property
in the grave, which according to belief was too personally connected with
the deceased to be capable of being possessed without danger by other
persons, m ust be regarded as a custom that has disappeared or is disap
pearing.
A. THE U N D IV ID E D ESTATE
T he indivisibility of an estate is in some law-areas dependent upon

the impossibility of owning property received from the fathers and mothers
216 INHERITANCE
other than jointly with the other kinsmen. The extended possessions, the
“ harta pusaka” , of the Minangkabau and the extended family lands (dati)
on the Hitu Peninsula of Ambon may serve as examples. Every child that
is born is a participant in the complex of persons which possesses extended
family property, arable fields, residential compounds with house and cattle,
krisses and precious objects. The death of the individual man or woman
leaves the complex undisturbed.
Possessions which a man has acquired as his own during his life-time
(harta pencharian) may pass as an indivisible unit at his death to his de
scendants, who are entitled to them and who during his lifetime already
stood in relation to the possessions as “waris” . (See p. 208.) If, for example,
among the Minangkabau a woman dies in personal possession of a field,
then that field becomes the indivisible group possession of her children :
“harta pusaka” in. the first generation. In a like manner, “harta pencharian”
of a man become the “ harta pusaka” of his brothers and sisters and the
descendants of the sisters in the female line. Thus subdivisions are formed
in the “harta pusaka” . There aAe the oldest possessions1 going back many
generations and originating from the ancestral mothers, who co-operated
in the establishment of the “nagan” . And there are the most recent pos
sessions originating from a deceased man or woman of the previous gener
ation. Between these are the complexes originating from ancestors of
several generations back. All this becomes simpler in practice than it
appears, as a result of the dying-out of groups and the consequent fusion
of family units. If an extended fam ly becomes loo large, then it splits
up, and there is a split in the indivisible property (gadang manjimpang).
Where, as on the Hitu Peninsula of Ambon, such indivisible extended
family property (dati) is in the hands of a patrilineal sub-clan, the children
of the man and the descendants of the sons are the continuers thereof.
The characteristic feature of this first type of undivided estate is, accord
ingly, the impossibility of division and the fact that the group is jointly
entitled to it, mostly under the guidance of an extended family chief, the
“ mamaq kepala waris” , (Minangkabau), or the “kepala dati” (Hitu). If
1 T h e “ h a rta pusaka tin g g i” u n d e r th e co n tro l o f th e h e a d o f th e la rg e s t
fam ily g ro u p u n it, th e “ p e n g u lu a n d ik o ” .
the family dies out and its possessions become ownerless (guntung in
Minangkabau, linnyap in Ambon), they may pass to related extended
families or, if such are lacking, to the community.
Another type of undivided estate is the right of inheritance by a single
child, either the oldest son (as among some of the Lampong peoples and
still to some extent in Bali), or the oldest daughter, and if there are no
daughters, the youngest son, among the SemeDdoéans of South Sumatra
and among the Landak and Tayan Dyaks of West Borneo. In case of the
death of the father, the oldest son slips into his place. He becomes the
native possessor of the property, but he has at the same time the obligation
of supporting his brothers and sisters. He must also give them away in
marriage. On Bali, he must leave a portion of the property for a household
shrine. Brothers, who do not wish to remain at home with the oldest
brother in this way, emigrate with their families. In the Lampongs, whole
“ marga” appear to have been populated in this manner. But the paternal
estate remains an undistributed unit from generation to generation in
the possession of the “ penyimbang , the eldest son of the eldest son. If
there is no eldest son, and no provision for 2 substitute ha9 been made,
then that branch dies out, and the estate passes to the closest related
branch. The possibility that younger children may demand the capitalizing
of their right of maintenance, may lead to a claim to a division of the
estate and to the desuetude of the seniority inheritance right. In Bali it
seems that this process is making headway. The special position of the
oldest daughter2 among the Semendoéans, and of the oldest daughter
(anaq pangkalan) among the Landak and Tayan Dyaks, has the effect
of holding together the principal constituents of the estate as an indivisible
unit made up of one agricultural field, one residential compound,
one buffalo and one coconut tree. This unit remains both the place of
departure and the place of refuge for all the children. Similarly privileged
is the inheritance position of the youngest son among some of the Batak
peoples. The one who stays at home the longest gets that part of the estate
which was undivided in the hands of the testator. His obligations toward
a T u n g g u tu b a n g (u n d er the su p e rv isio n o f th e eldest son, th e p ay u n g ju rai)

218 INHERITANCE
unmarried sisters, which he shares with the older brothers, are in pro
portion to his privileged position.
The well-known undivided extended family estates of the Minahasa
(barang kalakeron) differ from the Minangkabauan extended family
property in that distribution of the undivided estate is possible and per
missible, provided all parties entitled to it give consent.
I f individually acquired property (pasini), such as a new planting
on land belonging to the extended family, is not divided, but passes on
as the joint property of a group of descendants, who are but a fraction of
the family group that owns the land, it creates subdivisions of the extended
family just as it does among the Minangkabau. But in the Minahasan
situation the effect is far more complicated, because of endogamous mar
riage. This is the cause of the confusion in land rights in the Minahasa,
which was to be eliminated by making legally valid distribution of estates
possible without complete unanimity of the family group members, who
may not always be within reach. Unfortunately, the defective organization
of the government administration of justice, and the lack of insight into
the function which decisions ought to fulfill, and inadequate attention to
remedying this defect make the solution of this problem improbable for
the time being.
In Ambon, lands, which are not part of the “ dati” , are inherited by
the descendants of the testator and they remain undivided “pusaka” .
But, in fact, the distribution of the land can really be accomplished. Smaller
groups of persons entitled to “ pusaka” (descendants of a lineage member
who by reclamation or by additional planting acquired personal holdings.,
perusahaan), arise within the larger group which owns the older plot.
In addition to these forms of the indivisible estate, it is a general
Indonesian practice to pass on the property of a deceased native possessor
as an undivided unit of joint property. The basis of this non-division res^s
in the notion that the property that is acquired is serviceable to the material
needs and desires of the family. It is a self-evident fact that, if the leader
of the family drops out, his (or rather, the family’s) possessions remain
united under the leadership of the oldest son or of the widow for the
benefit of the family, until it is divided in good time between the individual
members of the family as the basis again of the families formed by them.
In this connection, it must always be realized that the distribution of the
property is not necessary; certainly, not at a particular moment. I t may
be a drawn-out process of passing on agricultural fields, residential com
pounds, or houses to departing children, with apportionment of the last
remnant, after the parents have died, to the youngest who has remained
at home the longest. The death of the parents may be an incident in this
process without substan ial influence on the adat law course of events.
It may also be the occasion for a definite division of the property. The
question, which is of significance to adat law, is whether, if the person,
who is regarded as the native possessor has died, can an heir demand the
definite distribution of the estate ? The answer to this is as follows: If
it is necessary or desirable for the estate to remain undivided for the
benefit of the family, or if a widow or minor children must be supported
from it, the division may not be obtained by an heir. To what extent
people proceed to a division in mutual agreement depends upon numerous
economic and magico-religious factors. The Batak sons of a successful
father like to assure themselves as quickly as possible of their share in the
self-acquired property of the deceased. Having that share will simulta
neously cause them to share in the prosperity which is inherent as an invisible
force in the property. However, they will leave any dry agricultural fields
inherited from the ancestors undivided through all their lives. The Dyaks,
on the other hand, leave objects that are strongly charged with magic,
such as gongs, old weapons, old articles of clothing, undivided between
groups of heirs. The ranking persons are merely the users or administrators
of these. Among the West Torajas, the complex of extended family property
remains unchallenged under the control of the oldest woman. A man,
when he marries, proceeds to the residence of his wife without taking any
thing of value along. On Java, the need of money, coupled with the
necessity of putting up one’s own agricultural fields as security for money
to be borrowed from the People’s Credit Bank, may hasten a division of
property which otherwise would be deferred for a long time.
On the other hand, the ownership in common of undivided property,
in particular of undivided land, is a real means for keeping extended family
220 INHERITANCE
relationship intact. For this reason, people intentionally leave an estate

undivided for a long time. And for this reason, if they come to an actual
division, a practically worthless parcel of ground is held onto as a concrete
sheet-anchor for the permanent maintenance of the family group tie (the
tanah wawakes un teranak of the Minahasa, literally : the family tie).
Adat law prohibits an objecting heir from demanding suah a piece
of land. It is likewise impossible to appeal to the principle of Western law
that no one can be compelled to continue to participate in an undivided
estate, or an appeal to the doctrine of duties of Islam, which contemplate
immediate division of the estates. It is precluded that these European or
Mohammedan rules should detract in any way from the validity of the
rules of adat law which have been recognized.
The use and control of an undivided estate is sometimes entrusted
in turn to each of the families entitled to the inheritance, sometimes to
each of them in part, and sometimes to but one of them. I f no agreements
have been made, there is no duty to divide or hand over the proceeds, and
certainly no indemnification for fruits enjoyed by the controlling heir
alone can subsequently be demanded by the joint heirs at the final distri
bution, although this is still attempted occasionally in the indigenous
courts of Java.
B . S E T T L E M E N T O F P R O P E R T Y D U R I N G L IF E A N D B Y T E S T A M E N T
1. Inter vivos settlement.—The complete or partial settlement of

the estate during the lifetime of the owner is the exact opposite of leaving
the estate undivided, although based on the same fundamental idea. This
results from the fact that property is intended to be the material basis of
life for the family members in the following generations. Children often
receive a field for cultivation, a plot of land with a dwelling, and some
cattle, either at the age of puberty, or upon leaving the parental roof, or
upon setting up a new independent household (menjar in Java, manjae
in Batak, see above, p. 167). These goods make up the material basis for
the new household from the start, and are reckoned as their share of the
household property, at the death of the parents. In the case of ordinary
possessions of the little farmer, this will later prove to be his sh a re ; only
in the case of greater prosperity does it happen that, even when all the
children have been aided in this way, there will still be something left to
divide after the death of the parent. Before a man goes on a pilgrimage,
he often divides all his goods during his life. With respect to the frequency
of the settlement of property during a man’s lifetime (“ marisake” in
Javanese; “papassang” in South Celebes), it can only be said that it
sometimes takes place and often does not. The grant of land to a marrying
son or daughter is a land transaction, but a land transaction within the
family circle, a transposition, a natural transfer from one to another within
the existing familial group, in which the donor and receiver are both
members (see p. 126). It is thus not a “jual” transaction in which the cash
payment is an indispensable quid pro quo for giving up the land. The
cooperation of the folk chiefs is necessary for its external effect, both on
the community and on third parties. The settlement must also be “terang”
in order to be legally protected outside the family circle; for example,
against creditors of the grantor upon debts made after the division o f the
estate. However, as an inheritance procedure, it is valid within the family
circle even without outside approbation. Indeed, the required collaboration
of the chiefs can be replaced by the actual setdement, and the acknowl
edgement of the new legal relationship within a specified time (p. 117).
The cooperation or the common knowledge of the interested family group,
the “ waris” , is .ometimes necessary to make it valid, to the extent that
each member of the “ waris” can point to the fact that the transaction took
place without his knowledge and has injured him; unless considerable time
has elapsed since the transaction took place and events occurred during
that time which validate the transaction.
The settlement is also subject to the limitations imposed by the com
m unity’s right of disposal, in that only members of the community can
hold property, that no two fields be in the hands of one member.
A setdement is characterized, in contrast to all other inheritance
transactions concerning the estate, by the immediate effectiveness of the
transfer.
The simplest act of settlement is the transfer of land to a child with
222 INHERITANCE
hereditary rig h ts; the parent is in this case bound by the rule that all
the children must receive a reasonable share of the estate (for in adat law,
it is forbidden to disinherit a child), but the manner of apportioning and
the extent of the share of each is discretionary. The act of setrlement,
however, has still another function in addition to its place within the rules
of intestate succession. The apportionment makes possible a certain cor
rection of the formal, traditional or religious rules which are not (or are
no longer) satisfactory in the law of intestate succession. Thus the rule of
the Toba-Batak’s law of succession, that only the sons share the estate
of their father, is ameliorated by the settlement of agricultural land or
cattle by the father upon his unmarried or marrying daughter and her first
bom child (saba bangunan, pauseng, indahan arian). The legal rule of the
Minangkabau that a man only inherits from the descendants of his mother
is made tolerable in practice by almost every father allotting to his children
some or all of the goods he has acquired by himself. In the patrilineal
system of Ambon, the father of the bride is pledged to give the young
couple an orchard (dusun lelepeello). In former times, the Javanese could
protect themselves against the religious judges, who regularly attempted
to deny the rights of an adopted child by settling the estate or a share of
it upon the adopted child. Childless persons can dispose of their personal
property without limitations imposed by the laws of succession, unless
the family bond is so strong that all or part of the goods must benefit the
larger “ waris” group. In addition, settlement is frequently used to make
certain of the material position of the spouse. In conclusion, the so-called
marriage portion given to daughters when they marry (sometimes with
great ceremony, as in the “ peungkleh” of Atjeh) is likewise considered
as a sort of settlement. The bride-price paid to the wife’s family, although
it is a transfer of family property on behalf of one of the children, is,
nevertheless, not associated with settlement, according to adat law.
The reversion of property to the grantor in the event of the death
of a childless grantee is not a particular rule, but a mere application of
the rules of succession concerning “ asal” goods.
2. Last wills.—The native possessor can exert influence in still
another w’ay during his lifetime and, as a result, bring about the division
of his estate. In the first place, he can do it by means of a transaction, the

object of which is to cause a certain part of his property to fall to one of
the heirs at the instant of his death. On one occasion or another in the
presence of the “ waris” , he names the field or house and land that is
destined for a certain child, who is designated by name. In case the testator
does not revoke this bequest, the legatee has a claim to that portion of the
property of the estate, at least insofar as the condition of the estate, in view
of payment of debts and a disinheritance injunction permits it. In localities
where this transaction is known it seems to be indicated by the Islamic
term, “ hibah wasiyat” .
Another much more general last will, universally known and practiced
in the Archipelago, is the itemization of the property and the making known
of his wishes by the testator on his deathbed, or at least shordy before his
death. In Java, such a disposition is called “ wekas” (“ weling” in high
Javanese) ; it is called “ umanat” in Minangkabau; while in other places it
is given other names. The purpose of this is partly to have a binding record
of the nature of the parts of the estate to be passed on (inherited goods,
acquired goods, goods obtained during marriage, etc.), and partly to impose
the distribution judged equitable by the testator upon the heirs and to
prevent disagreement about the estate. The “ umanat” is also subject to
the rules concerning the payment of debts, disinheritance, etc.
The expression of the last will of the testator in a testament seems
to have arisen in the most prosperous communities of most law-areas.
Where the testament is a novel institution, it gains entrance into the law
by legal confirmation in a form which already exists w’ithin the system;
it has its connecting link in the “hibah wasiyat” and the “ umanat” . It has
been specifically forbidden to make a last will in only a few cases such as
in the strongly communal society of Tnganan Pagringsingan in Bali. The
intervention of a notary in drawing up a testament may remain quite ir
relevant in adat law, and for legal security it may be desired only in case
the notary is well grounded in the adat.
c. DISTRIBUTION OF THE ESTATE (INTESTATE SUCCESSION)
If the testator, during his life, has not disposed of all his property
224 INHERITANCE
by settlement, and if there is a surplus after payment of debts, then the

estate can either remain undivided, as mentioned above, or be distributed
at a particular time. The distribution is a procedure of the joint “ waris” ,
ordinarily not controlled by strict rules or definite desires, but often taking
place in a spirit of good-will, helpfulness and in favor of the least prosper
ous members. By this procedure the individual rights of the various “ waris*’
are established; and as far as is necessary with respect to the rights in land,
the folk chiefs are informed of these decisions, in the event they were not
present at the division of the estate. In Java, their presence is exceptional.
If one or several of the heirs wish to divide, and the others refuse to
cooperate, in case the heirs cannot come to an agreement, a legal contro
versy arises, requiring a decision by either a village judge or an official
judge. If there are no reasons upon which one can legally object to a division,
then persons can be forced to accept the division of the property. Unhap
pily, the manner of legal intervention by government judges in the division
of estates is one of the most unsatisfactory parts of procedural law. In cases
of persistent obstinacy, there is forced public sale after judgment. This
practice calls for reform.
D. HEIRS
It is already clear from what has been said that, generally speaking
the near relatives of the following generation, those who grew up in the
house of the testator, are the heirs; children come first. However, as has
been already remarked, the household relationship is broken in some law-
areas by the ties of the unilateral group. In extended families, which are
sub-clans, there is a noticeable tension on this point, between the claims
of the immediate family and those of extended family. When changing
social conditions lead to the establishment of colonies elsewhere, and thus
increase independent familial life and the desuetude of the expensive ex
tended family houses, with an increase of the number of small household
dwellings, then the legal ties which are based on household relationships
become stronger than those which are based on extended family ties (p. 210 ).
The children’s right to inherit ab intestato the household goods as a whole
arises through the practice of settlement.
The right of the children to inherit from both parents is a feature of

the parental relationship both in the bilateral tribal organization (Dyak
and Toraja) as well as that which results from the splitting up of larger
relationship groups into families, as in Java.
In case of unilateral relationships, as was remarked above, there are
two obstacles to the children inheriting from both parents. In the first
place, children do not inherit from the parent, who remains a member of
the family complex to which the children do not belong. For example: in
Minangkabau where the children belong to the sub-clan of the mother,
while the father has no part therein but remains attached to his own re
lationship group, the child’s intestate right of succession to the goods of
the father is excluded. The practice of settlement corrects this exclusion,
while shifting of the social circumstances can partly or entirely annul it.
Where daughters inherit the goods of their mother, and sons those of their
father, as on Savu, the impediment can also be overcome by settlements.
For example, the father can use his “pusaka” goods, which his daughter
can never have the right to inherit, to settle (haru kaballa) a garden upon
her and her female descendants.
Secondly, an entirely different obstacle to inheritance from their par
ents by children in unilateral relationship systems flows from the form
of marriage consummated. As a result of strict bride-purchase, the bride,
and in certain forms of adoptive marriage, the groom is cut loose from his
community of relatives. This is the case among the Pepadon groups in the
Lampongs. Among the Toba-Bataks, the daughter always withdraws from
her father’s family at marriage, with the result that she has no claim as a
rightful heir in intestate succession—no more, for instance, than a married
daughter has a claim to a part of her father’s estate in Bali. The practice of
settlement before, at, or after her marriage, corrects this exclusion. Even
among the Toba-Bataks, although the daughter is not entitled to succes
sion, she can ask for certain portions of the estate, on offering a feast with
due attention to the prescribed forms of adat etiquette, and the sons or
other relatives inheriting cannot refuse the request if it is at all reasonable.
In the group of children legally entitled to inherit, there is a differen
tiation in various law-areas which is tied up with the undistributed portion
226 INHERITANCE
of the parent’s estate in the form of native possession by the oldest son
(among some Bataks, Lampongs, Pasemah, and in Bali); by the oldest
daughter (Semendo, Landak and Tayan Dyak); by the youngest son (some
Bataks, elsewhere in Bali), by the oldest and youngest son, etc. (p. 217). A
differentiation in patrilineal areas between boys and girls in the sense that
sons have the right to twice as much of the estate as daughters does not
seem to be of native origin ; the “ sapikul sagendong” (the two against one
as a native standard of distribution refers only to the proportion in the
communal marital property, although it appears to have infiltrated here
and there occasionally into local rules of succession, as a false popular anal
ogy and supported by the laws of Islam (p. 212).
The point of view that the wealth of the household is destined from the
very beginning for the material basis of living of those who are .born
to the couple is confirmed in the adat law rule of substitute succession.
Children of deceased children get the share of their parents from their
grandparent’s estate. Only religious justice sometimes breaks into this
scheme.
The position of the widow with respect to the estate in the adat law
point of view is that the wife as a stranger has no right to inherit, but as
a spouse is joint owner of the goods acquired during marriage, with the
limitations described above (p. 2 1 2 ). Moreover, everywhere (except where
matrilineal organization makes it unnecessary) she has a claim to life-long
support from the estate. In Bali, during the period before the son is legally
recognized as successor (in the rituals by the corpse of his father) she ad
m inistrates the estates. As a matter of fact, she often, has this ri^ht in other
locales. Consequently, the wife does not receive the inherited goods of
the husband as heiress, but if necessary is entitled to receive an income
from this property or may receive a share from it in one payment as prop
erty with which to support herself. If, in a patrilineal system, she is taken
into the m an’s family} she remains with them and is supported, sometimes
getting a part of the estate for herself (Bali). I f she allows herself to be
separated from the man s family, however, she never receives any goods
from him. With a single exception, the husband does not inherit from his
wife. In patrilineal regions, such as Pasemah, the trousseau which a woman
brings with her in a bride-price marriage and which she retains at divorce,
goes to her husband on her death, just as in Bali the wife’s share of marital
property, both that earned by the wife herself, or personal possessions
brought by her into marriage, fall to the husband.
Where there is common marital property, if there are no children, one
spouse gets the whole estate at the death of the other. On the death of the
second spouse, one half of this is left to the relatives on one side, half to the
relatives on the other, or two-thirds to the relatives of the husband, and
one-third to the relatives of the wife (sapikul sagendong). This division
can also be arranged before the death of the second spouse and can, per
haps, in the case of remarriage, or in other cases, be bargained for earlier.
It often happens in bilateral areas that even if there are children the claim
of the widow for support and for her share of the goods acquired during
marriage is recognized by settling upon her a more or less equal share in
lieu of assurance of support of a wife by settlement during the life of her
husband.
It is occasionally reported (South Celebes or Middle Java) that in
addition to the common marital property, a widow’s or widower’s portion
is recognized; probably due to the influence of Islamic law. This must be
treated as a separate institution.
Insofar as the adoption caused the status of “ stranger” to disappear
and that of “ child” to be created, the adopted child is legally entided to
succeed as a child. However, it may happen, on the contrary, that the adopt
ed child remains a “ stranger” to the families of the adopting parents, which
means that the child does not receive the “asal” goods of the husband or
the wife to which their own families have kept a certain claim, but he does
receive the goods earned during their marriage (p. 177). In the Pasemah,
the right of the adopted child to inherit is talked over with the members of
the “ dusun” . In Java, when nephews are adopted they remain the legal
heirs of their own parents, for instance, whereas in other places, such as
South Sumatra, all right of succession, to the actual parents and family is
broken by the adoption. The adoption as a cash transaction always creates
full rights of succession. The transfer of goods to the adopted child (keeping
up the single line in the process of the succession of generations) is often
228 INHERITANCE
the motive for taking the child. The disturbing influences of those judges,
whose decisions are based on Islamic law, were and are nullified by settle
ments.
The succession to property in the absence of children is simple aside
from the claims of the remaining spouse and the adopted child. The prop
erty goes back one step up the family tree of the deceased and is inherited
by the offspring of the person in that position. In case of the absence of
such offspring it goes back another step, etc. The family tree is naturally
to be understood as paternal, maternal, or alternating, depending on the
nature of the system of relationship. In one instance at least (in the Great
East), some property goes to the father’s side and some to the m other’s.
The oldest living generation cuts out the younger generations, apart from
substitution, which also here is effective. Where children are disinherited
through the application of the rule of extended family ties, as occurs at the
death of a husband in Minangkabau, the estate is inherited in the same
way: first the mother of the man and her descendants (the brothers and
sisters of the deceased) ; in their absence, the grandmother of the deceased
and her descendants (in effect, his cousins, the children of his aunts on his
mother’s side) and so forth. I f there are absolutely no heirs, then the estate
is turned over to the territorial community of the deceased and comes under
control of the chief of the community.
E. COMPONENT PARTS OF THE ESTATE
It has frequently appeared above that the property of the deceased

person is not to be considered as an homogeneous whole to be inherited
all in the same manner. In the estate there can be property which is in
a specific relation to the extended family, as opposed to property which
is in a certain fixed relation to the household, and property which has
a special tangible value. There can be property in the estate which has a
special relation to the community, in relation to which the right of disposal
by the community manifests itself in a particular manner on the death of
the individual. In the estate, there can be liabilities as wel as assets. But
besides these differences in the legal position of the property, the actual
nature of the component parts cf the estate is often significant in the laws
of succession. The parental home, for instance, is inherited in Atjeh pref

erably by the oldest daughter, in the Batak lands by the youngest or oldest
son. We have also mentioned in the Batak lands the difference between
property charged with the magic power of the deceased, in contrast to
goods with no intangible qualities. There are similar distinctions in other
places (Borneo, for instance) but with other consequences.
1. Extended family property.—The difference in inheritance between
goods coming from the family (inherited goods) and goods independently
acquired in the household is especially noticeable when the testator has
no children; his “ barang asal” then goes back to his own extended family
—lest it “getaw ay"—while the household goods are taken by the surviving
spouse. It has already been said that in some law-areas a strong family
bond can also influence the inheritance of goods, which were acquired
by the household (p. 208). Among the Toba-Bataks, lands which have
been given as dowry to the daughter remain at the death of the woman
with the husband and his family, it is true, but in such a way that for
generations, the in-laws (boru) may not use it without consulting the wife’s
family (hula hula) and giving them a right of preference.
2. Property of special value.—The sacred objects in a family can
be tied up with the status of the possessor; for example, the “kraton”
goods of the “kasepuhan” in Cheribon go to whoever inherits the dignity
of Sultan Sepuh. In the same way, a name can only be bequeathed to a
qualified heir. It can also be said that the heir of that family property
becomes the legal administrator.
3. Household goods.—Differences in inheritance as a result of
household ties may arise when a second marriage occurs. The children
of the first marriage inherit the goods acquired during that m arriage;
the children of the second marriage receive none of them (Borneo). In
M una in South Celebes it is said in this connection, that the property of
the one house may not be taken over by the other ; in other places in this
law-area, there is an adat law maxim to the same effect. In Java, the practice
of settlement is ordinarily used to overcome the difficulties of multiple
marriage in similar cases. For instance, in case the children by a first mar
riage are already married and thus form no part of the household of the
230 INHERITANCE
second marriage, at the death of their father, they do not inherit the goods
acquired during the second marriage, at least not if they have already had
their share of the household goods of the first marriage. However, they
hold a claim to the “ asal” goods of their father. I f two wives of the same
husband form separate households with their children, then the goods
of the two households remain separate (p. 194). The more involved the
relationships are in a particular case, the more the most acceptable solution
has to be found for an arrangement; such solutions, however, are satisfac
tory only if based on accepted tradition rules.
4. Communal property.—The community’s right of disposal some
times prevents succession to agricultural lands by its internal action
because at the death of a first class villager his landholdings (at least his
regular holdings attached to the nuclear village) revert to the community
by reason of the right of disposal, and are granted to a village member of
lower rank, who is next in turn. I f such land is in general given to an heir
of the deceased, then there is an inheritance claim to succession to first
class villager property. This rule runs counter to the operation of the
right of disposal within the community whereby individual rights to
fields are allowed only to a specified extent. That is to say (in some
Javanese and some Balinese desas), the unit of private lands of the testator
may not be added to a unit of ground-holding which is already in the
possession of the heir, or on the other hand, it is equally impossible to
split the plot of the testator in smaller units among the heirs. Prohibition
of accumulation and of splitting up of the standard unit permitted by force
of the right of disposal is thus the norm within which the internal operation
of right of disposal finds expression. Numerous vague relationships can
be created in this way as a result of the apparent support, for one reason
or another, of the rule mentioned, while privately permitting all sorts
of evasions of it. For example, the heir, who already has a first-class
villager’s field allows it to be entered in the name of his wife or his oldest
son, and himself receives the field of his deceased father; or two brothers
permit their father’s field to stand in the name of the oldest, but act during
their whole lives as if each had a right to half of i t ; the village authorities
cooperate by entering the field in the name of the oldest son “ c.s.” (cum
suis). This Latin phrase has come into use in many desas, but in the form
of “sees” .
T he effect of the right of disposal outside the community conflicts
with the law of succession in that it often prevents the inheritance of a
nuclear village field by an heir not living in the village. Here also are
transitional conditions : putting up a proxy for desa services, entering the
land in the name of a member of the extended family, etc. In case of
dispute, the decision must bring out the true facts of such a half-way
condition.
5. Designated property.—The effect of the actual declaration of
the parts of the property in the division of the estate does not take the
form of a prohibition or a command, but of a preferred choice of method
of division. I t is unfortunate that the mechanical procedure in case of the
unwillingness of one or more heirs to accept the expressed desires of the
testator prevents the government judge from carrying out the provisions
in that the whole estate is then sold publicly and the money divided, which
is a destructive rather than a constructive intervention (p. 224).
6 . Debts.—Finally, the obligations, which exist and arise at the
death of the testator are also parts of the estate, even if negative ones.
The surpluses which are available in the estate of the deceased must
be first used for the care of the corpse and burial. An heir who sells a
positive part of the estate on his own responsibility for that purpose is
acting lawfully. T he costs of burial are given preference. This rule is valid
in all places. Then the costs of feasts for the dead, sacred feasts, cremations
or whatever ceremony it is customary to offer for the deceased are met
from the estate. However, the expenses for these feasts do not precede
the payment of the testator’s debts; these expenses are thus not preferential
deb is of the estate but can be taken care of from the balance of the estate :
surplus minus debts, before the division of the esrate. Sacred feasts are
also sometimes paid for by the heirs, with or without later settling with
the estate. Ii Celebes it is said that whoever pays part of the burial costs
and the feast for the dead becomes, in this way, a co-heir.
A decision must be made on the question as to whether the debts
of the testator are inherited by the heirs. In the first place, in more than
232 INHERITANCE
one law-area, the rule which is the point of departure in this question is,
without restriction, that the heirs are responsible for the debts of the testator
(Toba-Batak, Dyak, Bali). However, this is somewhat ameliorated by the
obligation of the creditors (on penalty of losing their rights) to claim the
debt from the heirs within forty days after the death, or to announce it
before the sacred feast (the nyekoh in Bali) for the deceased has been held.
There is also the situation that when there is special reason for clemency
toward the heirs the full sum is not to be demanded. It is not reported
how the relationship between the heirs is to be settled in case of disagree
ment in this matter.
Another principle—narrower than that just mentioned, but appar
ently more general—is that only the undivided estate of the testator is
to be applied to the payment of debts made by him. This view has given
occasion to the formulation of a maxim in adat law that only the balance
of the estate is heritable. The point of time in this case is not the date
of death of the testator but that of the division of the estate. The division
(thus succession) does not occur before all the debts are paid. This order
of events may be definitely designated as the fundamental adat law principle
of the succession of property. In the folk sphere of the small legal com
munities the testator will often have summed up his debts, if there were
any, or, during the forty days after his death, the creditors will come to
the heirs to present their claims on the undivided estate. Also in this con
nection, it is sometimes reported that creditors, who do not appear within
forty days, lose their claim on the estate. However, where such a rule does
not exist and complete responsibility of the heirs for all debts is not the
principle followed, the significant question is, what is the equitable solution
in case a creditor of the testator appears after the property has already
been divided ? In most law-areas, including Java, the answer is that the
heirs are responsible for the debts of the testator insofar as they have
profited from the division of the estate, in principle in the same proportion
as that in which they benefited from the estate. If the surplus of the estate
is not sufficient, then the debt remains partly unpaid. Settlements of the
estate after the incurring of the debt may be attacked. Settlement of the
estate before this time may not. In practice, it often happens that the
affair is so handled that one heir assumes the debts and gets in return a
proportionately larger share, or he gets all the surplus and pays all the
debts or as much of them as the estate permits.
The actual division of the estate is naturally influenced by all sorts
of conditions and considerations—kindliness, selfishness, sympathy. In
case of disagreement there is, in the first place, mediation by the parties
concerned and an attempt is made to bring them to an agreement which
they voluntarily accept. But if this is not possible, then a decision is pred
icated on the rules and the system of the Indonesian adat law of succession.
CHAPTER XI
T H E LA W OF D E L IC T S
A. DEFINITION
T N TH E LEGAL order of the small law-communities, a delict is to

-“-be considered as a unilateral disturbance of the equilibrium : a uni
lateral encroachment on the material and incorporeal property of an
individual or group. Such an action demands a reaction, the nature and
extent of which is determined by the adat law : an adat reaction, which
in most cases is a fine for the delict in goods or money, by means of which
equilibrium can and must be restored.
The above definition takes for granted the possibility of a relationship
in each community between people, invisible powers, land, goods and
everything else, which, in the opinion of the community, is considered
as normal and necessary for a successful and harmonious life. This
relationship may be called an “ equilibrium” . Since the people and the
community are the central point in a complex of relations, so that one
may speak of the life-circle of a man or of a community, the “normal”
condition is one of equilibrium between life-circles. The content of indi
vidual life-circles may be small compared to that of the community itself.
The process of strengthening and enlarging the individual life-circle at
the expense of that of the community has already been mentioned many
times. The complexes which we here call life-circles include those referred
to on page 115, complexes connecting man, land and goods in addition to
those things to which man is related in other ways. Every usurpation by
outsiders, every disrespectful transgression of or contact with the life-circle
and anything connected with it, and even every disrespectful remark
about it produces a feeling of shame (malu) and a desire to be rid of the
cause of that feeling.
The definition given above also takes for "granted that everything
which is subject to such a relationship is esteemed in the thinking of the
community and therefore has a certain value which can be compared with
other values, so that material and incorporeal goods can be substituted
for each other in effecting the desired restoration of equilibrium.
The “ thinking of the community” refers to the combination of par
ticipating thinking (experience) and the analytical thinking similar to that
which controls the group ideas (representations collectives) in every com
munity.
In conclusion, our definition takes for granted a sense not only of
the possibility, but also of the necessity, of replacement of the damaged
value, by an equivalent (the idea of reciprocity) in case of encroachment
on the life-circle.
When thought of in this way, the demand for fines for delicts is a
part of the concern for recovery of the cosmic equilibrium, which, naturally
has to be defined over and over again in a living community, and on which
the welfare of people and groups is dependent.
Permanent disturbance of the equilibrium would not only cause a
weakening of the injured member, but also of the whole community.
T he payment of a fine for delict in case of trespass is consequently, a
magic relation most closely related to the cash transaction (p. 116). The
first restores, the second prevents disturbance of the equilibrium. In
another way it bears a relation to the credit transaction, in which giving,
taking and returning are included as a part of the equilibrium process.
The word “delict” indicates, th u s : an action by one party disturbing
the equilibrium, and not previously found acceptable either explicitly
or tacitly, by the opposite party.
Through these motives of objective disturbance and the restoration
of the equilibrium, however, there sometimes runs a highly personal
elem ent: the previously mentioned factor of being made to feel ashamed,
o f being drawn into a “malu” -complex, the element of complaint, of rage,
of revenge on the side of the offended party, and the element of negligence
and (or) intent of the perpetrator on the other side. Estrangement, enmity
and hate between two members (the delinquent and the injured party)
236 THE LAW OF DELICTS
weaken the group,—a good relationship has to be restored; the bit

terness of feeling must disappear in the interest of the com m unity; the
victim demands satisfaction. Thus the personal motives and community
motives run together and are synchronized.
In its basic forms, the law of delicts is as homogeneous as the rest
of the adat law. As a result of its dependence on the valuing of material
and non-material goods, and of the proportionate relation of values between
them, there is a great variety in its practice. Honor and chastity, the life
of the household and family members, the individual body, health and
the rules of magic in life, the possession of goods, the -relationship to
offspring and to married couples, belong practically everywhere to the
life-circle of persons, which is protected against encroachment.
B. INDONESIAN TERMINOLOGIES
The various injuries have their own names—•sometimes original

names, in the case of a closely related group of actions, such as all sorts
of theft, although the native names for delicts are very elastic in their
meanings, such as “ dago dagi” (Minangkabau), meaning disobedience
toward those in adat authority, and “kagau gau” (Buginese), meaning to
do something bad.
The fines for delicts are established in a specific relation to the
offense, which cannot be further explained; for example, three plates
for an ordinary insult, three plates and a pig for a serious insult, ten plates
for insulting a chief (among the Lawangan Dyaks). This is one sample of
the relation between the delict and fine taken at random from thousands
of others, all as inexplicable as this.
The fines for delicts frequently show their magic character in their
insistence in naming the goods which are owed by the delinquent (so many
buffaloes, so many slaves, for instance) and then, without objection, allowing
these goods actually to be replaced by objects of small monetary value
or by a sum of money.
The fines for delicts have their specific designation in various law-
areas, for example: “ bosi sebelas kepala tajau” (West Borneo), a pot of
the value of ten heads (kepala—head, in Malay) and twelve detached
heads, which is the fine not for one sort of delict but for a group of various
delicts (probably equal in degree). The Toraja distinguish between offenses
committed with the mouth, for which the fine is based on payment in
chickens; offenses committed with the hand, for which the fine is based
on the value of goats; offenses committed with the whole body, where
the fine is based on payment of buffaloes. According to the seriousness
of the offense, the actual fine for delict consists, for instance, of a chicken
with three things in addition, or of a buffalo with five things added to it,
etc. In the Balinese desa, many offenses are punished by a money fine.
Thus each law-area has its specific delict and reaction pattern. It seems
to be a general characteristic that in cases of theft (and other offenses
against property) the fine consists of a payment of twice or several times
the value of the stolen property.
C. SOCIAL REACTION
I f the injured and the offender belong to the same community, then
the well-being of the community demands adjustment, either when the
injured party claims it (perhaps, merely by showing ccmalu”) or independently
of this. The chiefs come into action to remedy the weakening of the com
munity, or to prevent something worse,—disaster or ruin. Behavior by
members of the community damaging the non-material or material values
o f the community itself, without actually injuring a person, such as sexual
relations between persons whose marriage would disturb the structural
order of the community, giving birth to a child out of wedlock, injury to
segments of the community area of disposal, absence from a village meeting,
etc., sets the community chiefs in motion for the protection of the com
munity. The fines for delict are received either by the injured party alone,
or in conjunction with the community, or by the community alone. Since
the magic life-force of the community is exceptionally concentrated in the
person of the chief, and is imparted by him to the community, payment to
the chief is a means of strengthening the weakened community (and, from
that point of view, a fine paid to the government or to a bureau is consid
ered among many peoples to be a useless procedure). From an economic
point of view, the chief regards such fines as a valuable source of income.
The general Indonesian ways of reacting to delicts a re : by purifying

an impure community with “jeruk” , by offering a meal to the injured
party and to the chiefs of the community, thus humbling themselves by
this means, by asking forgiveness, by verbally resuming one’s former
status. These wrays seem especially suitable in restoring the self-assurance
of the member affected with “malu” . There are also such specific forms
as proffering food or the dancing and musical which accompany the paying
of a fine for delict among the Bataks, etc. A member, who refuses to do
these things, puts himself outside the adat. Life in the community is made
impossible for him, and if the case is serious, he is driven away.
In case injury is inflicted by an outsider on someone within the com
munity, then an infraction of the equilibrium between the communities
of injured and offender has taken place. The community feels itself
attacked, and community reacts against community in its demand for
adjustment. This is also the case for relationship groups, sub-clans and
village communities. When their community interests are impaired by
outsiders (such as encroachment on the village area of disposal) the chiefs
of the injured community naturally react. If the dispute does not lead to
village strife, the adjustment is sought by the same means and on the basis
of the same values as in the case of adjustments within the community.
Where a higher authority exists, either in a union of villages or in a princely
or governmental law court, it may be compulsory to turn to it for a judg
ment ; in this case the individuals from the different communities oppose
each other merely as individuals.
An exaggerated picture of spontaneous community reaction should
not be formed. Much is left to take care of itself, or left to the influence
of popular disapproval, even when this does not cause the evil to disappear.
For instance, everyone knew for many years that there were grave cases
of incestuous relations in a community on the southeast arm of Celebes.
They also knew what the adat reaction to this had formerly been. Never
theless, the chiefs allowed the situation to continue. On the other hand,
spontaneous reaction by community and chief do take place, with the
chiefs stimulated by the advantages that the fines bring for them.
In general, it is difficult to indicate what significance the personal
element has in the process of restoring equilibrium, of care for maintaining

individual and community values. Sometimes delicts are not dealt with
at all, if the injured party controls his feelings and remains silent. Generally,
a minor part of the combined fine or of the act of restoration is especially
set aside by the delinquent for the removal of evil. Often, too, a single
payment has a multiple effect. On the other hand, the delinquent sometimes
is bound to an adat penalty only if he is found guilty; sometimes the
reaction is heavier in case of intent than in the absence thereof.
D. RELATION TO STATUTORY CRIMINAL LAW
A complication full of unsolved difficulties arises when the law of

delict of the small law communities comes up against the penal justice
of the principalities and the government legal system. The prince protects
the material and non-material values of his sphere by threat of punishment.
T he delicts and the punishments (often different from those known to the
communities) are set forth in law codes. But the courts of justice in the
principalities handle cases of delicts between members, or committed
against members of other communities, in which the central legal code
is also violated. By application of the princely edicts, the courts bring the
values o f the principality into the judgment) which do not fit into the legal
system o f the communities. This is even more true with crillliflfll jUSt/CC
in the legal system of the government, administered under the influence
of civil servants or legal officers. The government, as well, protects its
values by imposing punishments, but it also encroaches even deeper into
the legal system of the communities by punishing those offenses punishable
under western criminal law in accordance with the intent, principles and
values of the western criminal system. The law of delicts of the legal native
communities is in no way brought into functional relation with this. The
whole “ doctrine of values” of the community remains misunderstood. In
place of it, a penal law code based on the “doctrine of values” of western
relationships and based on western penal law is imposed from above. The
meeting is a collision; the authority of the government enforces its
method, although the method strikes at vital portions of the things the
people want to maintain in independence.
T he government judge in criminal processes is quite powerless to

do anything about the adat law of delicts, although lately an expedient
has been pointed out. This is the possibility of a conditional sentence, in
which the condition is part of the adat reaction. As for the civil judge, he
cannot do a thing to adjust the laws of civil delict.
Since 1935, the village judge has been able to impose legitimate adat
procedures, which are not punishments in the sense of the Criminal Code,
but he must limit himself to supplementary adat practices, such as asking
forgiveness, arranging a ceremonial meal, and the like, when a government
judge has already imposed a penalty.
In the sphere of native justice, the adat delicts, meaning all such acts
as are already delicts according to adat law, can be judged entirely accord
ing to adat law. This would include not only murder, manslaughter, theft
and adultery, but also touching a woman’s hand, incest, and among the
Karo-Bataks, eating from a copper plate on a pedestal in the presence of
one s kalimbubu” ,—someone from the clan from which wives are
chosen and the thousand and one things of that sort. Reactions on behalf
of the community, as well as those on behalf of the individual, can be jointly
imposed. In most cases, however, punishments from the Criminal Code
are applied; thus the punishment is imposed in the western manner as
desired by the government. I t is VCfy difficult to judge to what degree
this is inevitable. The judge of the native states also conforms to these
usages. As a result, the special question exists both for the native judge
and for the judge of the native state, what judgments can be used in con
junction with punishments from the Criminal Code in order to satisfy the
individual in his effort to restore the equilibrium on the basis of his
values, to help maintain the communities in their own legal system and at
the same time satisfy the “punishment” concepts of the western legal
system. However, the sanction of holding reconciliation and restoration
ceremonies (arranging dinners, asking forgiveness from the chief, the
notables, etc.) will often become a western form of punishment, because
the adat sanction of driving members out of the community, withdrawal
of mutual assistance, excommunication from the adat, is weakened by the
loosening of kinship and by the lopholes of escape offered by the big
cities. Tapanuli and Amboina have tried westernization of adat sanctions

by their own choice.
According to adat law, a claim for money damages for harm done,
either because of lack of reasonable care for the interests of others, or by
intent, is recognized throughout the Indies. In case of damage done by
wandering cattle, for instance, it is permissible in many regions to kill
the cattle. If, instead of doing this, compensation is asked for the damage
done, that is possible. When there is no intent, damage of a purely economic
nature (and not caused by magic) cannot lead to a judgment for compen
sation.
T he question of whether the driver of a vehicle in automobile accidents
or also the native possessor is responsible for damages has come up a few
times. The native possessor of the automobile has already been judged
responsible in some decisions in Java. This seems to be systematically in
harmony with the responsibility of the cattle possessor for damage brought
about while the buffaloes, herded by young boys, are turned loose,—but
it does not correspond with native legal ideas everywhere.
The responsibility of the legal residents of a community for unpunished
(unpaid for) delicts committed on the area of disposal is an example of
the obligation, based on the bonds which exist between the group and the
land, without any personal element, to restore equilibrium by payment
of a fine for delicts.
CHAPTER XII
T H E T I M E F A C T O R IN A D A T L A W
T > O T H T H E LAWS controlling land and those dealing with the rela
x a tio n s between persons in the adat are subject to the influence of the
passage of time. It is possible to speak of a fixed term of years after which
a law is established or abandoned only when the fixing of such a term is
actually known to have taken place, either through desa legislation (Bali),
by princely orders, by government influence or by legal decisions from
princely or government judges. In the unwritten law of the communities,
it is either the demonstrable changes in the condition of the land brought
about by tim e, for instance, which is a factor, or the failure to recall the
exact circumstances which took place “long ago” , which make it impossible
to consider alleged claims as valid, and against which the other party is
secure.
Individual rights to land cannot be maintained against claims of
members, which are rooted in community law. They are lost, if traces
of cultivation have disappeared on the land and if the land has become
overgrown by brush. Rights to trees growing wild are lost when a new
growth of bark has covered the indentifying signs. The option of the man
who clears the forest can be lost through the disappearance or destruction
of his no-trespassing sign. In case of personal application of the collective
right of disposal, it can happen that a despotic chief establishes a short
term, within which the individual rights lapse in case the land is abandoned.
He does this so he can give them out again and get paid for doing it.
A. THE INDONESIAN CONCEPT
In various law-areas, there are native legal terms which reflect the
lr.eaning “too long ago” or “ cloudy because of the passage of time and
therefore past and gone”—“ranan kotor” (Karo-Batak), “prakara lama”
242
THE TIME FACTOR IN ADAT LAW 243
(Toba-Batak), “kedaluwarsa” (Javanese). With respect to pledging land,

it is acceptable, both in native jurisprudence (Batak lands, Gorontalo)
and in the government law system, that by long postponement of redemp
tion of the land, the giver of the pledge loses his right to it. According to
adat law, however, the right of redemption actually is not liable to attack
because of long delay, before the judge assumes the operative effect of
legal security, because of the influence of the passage of time, he may
well think the matter over several times. This is also true in the case of
individual claims to an undivided estate. A couple of heirs can be left
to enjoy the use of essential parts of an estate for a very long time, without
establishing individual rights through division of it. But it is equally
possible that eventually the joint heirs tacitly accept the actual situation
as a definitive one. If a difference arises, because a group of heirs is opposed
to the arrangement for disposal of the estate, contending that it is still
undivided, or because an undesirable marriage or other family dispute
has stirred up the question, “How is it now, in fact ?” then the situation
has to be litigated. It is a subtle job to find out what can and what cannot
be regarded as interfering with correct legal relations; to find the dividing
line between acceptance of the prevailing circumstances and the legal
process. 1
Claims against village members and friends do not lapse in the native
adat, if the claim is not collected within a limited time. This would be
contrary to the first duty of every creditor, which is to be patient, for
bearing, and yielding. The idea of mutual assistance is active here. Beyond
a certain point and in relationships outside these, especially in connection
with installment payments, the influence of the silence and non-activity
of the creditor is, however, unquestionably present. The legal regulations
pertaining to these cases must be further defined by legal decisions.
In the principalities and as a result of the influence of European
government (in Batak lands, Borneo, Bali, Java) regulations are frequent
which make disputes which arose on a period of legal uncertainty, such
as before a war or before the conquest of a territory, not subject to litigation.
1 A decision o f the Superior Native Court o f Tulungagung in 19 23 gives a
masterful example of this. Adatrechtbundel> vol. 2 2 s p. 27.
B. JUDICIAL DECISION
We distinguish three lines in the decisions of judges. Because of

their concern for reasonable certainty in subjective laws, the judges are
interested, though not very systematically, in the influence of the passage
of time in the institution of codifying laws. First, it may be assumed that
material rights to land, for instance, can become void because of neglect
over a long period of time, or can arise through the prolonged existence of
an actual condition that corresponds to the holding of a title. It may also
be assumed that debts can no longer be collected when the creditor has
remained silent too long. In adat law, also, account must always be taken
of the passage of time, and reasonable judgment made according to what
has happened during that time, but not with a fixed number of years,
although it is conceivable that in cases in areas where the population is
relying more and more on the use of calendars and years, judicial decisions
can give guidance on this point. Where the cooperation of the local chiefs
is required in land transactions to permit a receiver of land to enjoy the
legal protection of the community, when the aid of the chiefs has been
overlooked, it seems that the lapse of time and direct and indirect acts
of recognition during that time can sometimes remedy the defect (pages
117, 221). Also, the passage of time can annul the rights of a relative who
should have been recognized in a transaction and was not, but who did
not appeal within a reasonable time (page 117). A judge can avoid a very
real danger of assuming too rapid an effect of time lapse only by forcing
himself to make detailed declaration of the systematic basis for his decision.
Secondly, significant influence is ascribed to the effect of time lapse by
considering it effective as a valid presumption for the existence or absence
of a legal fact or law. Contradiction thereof is not excluded in principle,
but as long as it is not furnished, the existence or absence of the legal
fact is considered proven in the trial and as a result, in decision. Thirdly,
the judge can quash the suit before the presentation of evidence, on the
basis of the single argument of the claimant that he derives his claim from
an event which took place far in the past. The judge can decline to handle
the case as “prakara lama” , as “kedaluwarsa” .
THE TIME FACTOR IN ADAT LAW 245
C. „LIM ITATIONS”
To speak of this problem by using the term “limitations” leads to

confusion. The statement: “limitation is known in adat law” invites the
misunderstanding that a thirty or a ten or a five year limitation is known
as a general institution among the Indonesians of some law-areas. The
statem ent: “limitation is not known” brings with it the misconception
that according to adat law no sort of influence of the passage of time
should or could affect legal relations. Both statements are inaccurate.
T he problem here is no different from the general problem worked out
in detail in the following chapters : that the academically trained judge
must, in his formulated considerations and decisions, try rationally to
be conscious of that which the native judge does intuitively and considers
valid in his decisions. And with this, the importance of social changes
must be allowed plenty of weight.
CHAPTER XIII
L E G A L T E R M IN O L O G Y
A. INTERRELATION OF DUTCH AND INDONESIAN CONCEPTS
NY D ESCR IPTIO N of adat law written in the Dutch language has

A to cope with the difficulty generated by the fact that Dutch is the
language which “ naturally” belongs only to Dutch law. A construction
of the Dutch legal system, set forth in scientific language, premised on
Dutch law, naturally strives for a refinement of Dutch legal terminology.
Or rather (for these two are one) : the continual process of becoming more
clearly conscious of, and of making generalizations and particulars from
the dynamic, valid, Netherlands legal whole (as opposed to law in general)
takes place in a Dutch legal lexicon, which is constantly refining itself.
This work is executed in inter-dependence by the folk and the law
yers (who belong to the folk) in the form of the language of folk law and
technical legal language. The statutory language in the Netherlands is
a special compound, dependent upon these (folk and technical) elements,
yet with its own self-dependence. A direct legal language is not something
which can be arrived at any day, and kept as an unchanging possession,
but is an endless process. The incompletely thought-out legal demands
o f the people (in folk language) and decisions of the people’s judges in
valid law are further thought out by the jurist, the professional judges,
the legislator (insofar as he is a lawyer) and the scholar. T hat which the
jurists, lawyers, legislators and scholars contribute to going law is carried
over into this direct legal language, insofar as their conception allows.
It is self-evident that besides inaccuracy due to the changing character of
the law, there is also much inaccuracy due to incomplete understanding
among the people and, also, among the lawyers. This will always be true
everywhere.
246
LEGAL TERMINOLOGY 247
As soon as the thinking in Dutch of the Dutch jurist turns to foreign

law, to the law of an Indonesian people, a new problem is presented. He
can neither neglect nor carry over the familiar legal terms with their Dutch
significance. He cannot carry them over, because in a law with “ strange”
(foreign, exotic) premises and with a “strange” social environment, the
Dutch meaning cannot be valid as Dutch m eaning; as such, it would
bring a “ strange” element into adat law. He cannot neglect his familiar
term s because he can only make himself understandable either by using
Dutch legal terms or by consciously disregarding them. In the latter event,
he must always understand the reality of adat law with the help of the folk,
native, legal language, and he must describe it with words, sentences,
pages, and books, which have the correct meaning for the conception he
has acquired. Consequently, the terms chosen must, in the first place,
be suitable for the system of adat law both in mutual coherence and in
mutual definition, and be at the same time distinguished from their Dutch
legal meaning. Thus, the following is done : from the special Dutch legal
idea (purchase, property, usufruct, pledge) you come to a more general
id e a : such as “ to buy” . This more general idea is then again redefined
for the conception of certain legal transactions or legal relations in adat
law. T he special meaning can be expressed (both in contrast to the general
and in contrast to the Dutch) by the addition of an adjective, or by para
phrase. You can say, for instance, that “to buy”, according to adat law,
is not a consensual but a real contract. It is only necessary to recall how
many misunderstandings and quibblings have already been produced by
that legal idea. Countless follies have been proposed by lawyers, especially
on the real character of the sales agreement. These are just so many barriers
between adat law and the conception of it as formulated in Dutch. The
same may be said for “property”, “possessions”, “communal possessions” ,
“ pledge” , “ sale with stipulation for recovery” , “betrothal” , “marriage by
purchase” , “ bride-price” , “advanced payment” , “ religious foundation” ,
“rental” , “movable goods” , “time lapse” .
Reflection on the use of Dutch for the description of Indonesian adat
law makes it understandable that the “translation” of native legal language
into D u tc h is a difficult undertaking. This job, brought to a scientific
level in one swoop by van Vollenhoven, is slowly improving. But it is

continually harassed and threatened by the changing character of laws, by
the natural carelessness in the vernacular of the opposing litigants and
solicitors, thinking and speaking in the same words, and also by the un
avoidable carelessness and provisional character of the lawyer’s language-
B. EFFECTIVENESS OF INDONESIAN LEGAL TERMINOLOGY
To these remarks on Dutch as a legal language in relation to adat

law, we must now add two remarks on native legal language. F irs t: the
conscious technical development of the language used to indicate legal
relations and transactions has in some degree here and there (Batak,
Minangkabau, and Sunda) taken a direction of its own. But everywhere
it has lagged compared to the present-day development of a class of native
lawyers. This is naturally so, because this development takes place in
Dutch, and there has been no initiative to adapt the native language up
to now (1939). Vergouwen’s book on the Toba-Batak, with its use of Batak
words for important law rubrics, does more for this than anything else.
Korn, also, called for more attention to the legal language of Bali, which
is technically developed to a high point, and he calls for more attention to
the destructive influence on it of the present-day use of Malay in the
native courts. Indonesian lawyers should resume this native terminology
and see what there is to learn from it for a better discernment of native
distinctions and native legal concepticns. We think, for instance, o f the
numerous names for delicts and penalties for delicts which have baffled
Dutch practitioners of adat law.
Secondly : There must nearly always be an “actual” relation between
institutions and transactions indicated by similar terms, and an “actual”
difference between differently named institutions and transactions. We
must have a better understanding of the terms for land and possessions
in relation to their legal status. We must distinguish between necessary
and accidental terminology. Therefore, the determination of native terms
is eminently necessary. Mallinckrodt gives some striking examples of the
search for the kernel of meaning in apparently divergent legal terms. H i 5
interest in the problem of legal language, like that of Korn and Vergouwen,
LEGAL TERMINOLOGY 249
is influenced by van Vollenhoven’s Indonesische Rechtstaal (1922), in

which these problem s were posed for the first time. T he job o f tracing and
sifting the meanings o f words is of a very subtle nature. To indicate some
o f the most well-known problems : what is the legal significance o f such
term s as “ adol” , “ jual” , “ tuku” , “ beli” , and words etymologically connected
with them ? T here is a little adat literature about the word “ tukon” ,
m eaning the payment which takes place at a Javanese marriage, but there
is no unanim ity in i t ; this is also true of the word “adol” . W hat is the
significance o f the fact that a Dyak tribe uses the same word to incidate
preparation to clear the land by a fellow tribesman (not by a stranger)
and to indicate an agreement confirmed by a visible token, and also for a
pre-betrothal (mam upuh, see page 182) ? Do all of these imply a right of
option ? And is this same thing found in the fact that the southern Bataks
use the same term for a “ visible sign on ground reserved for clearing”
as for a “ betrothal present” (toto) ? What is the correct relation between
the term “mamili” , used by the Ngaju Dyak for buying, and the word
“manjawi” (to bring something permanently within one’s power through
a magic payment) ? W hat is there in the word “ sanda” , both in land
transactions and in marriage ? W hat about the word “ tuan” , in the phrases
“ tuan tanah” , “ tuan wang” ? What is the function of words borrowed
from the Arabic, such as “miliq” , “ haq” , or one borrowed from the
D utch, such as “ borreh” ? What is the value and the meaning of a legal
proverb such as “haq bamilieq, harato bapunya” , and so forth? The
nam ing o f legal subjects in terms taken from adat law is thoroughly familiar:
including “patuanan” “ uiuya,”, “panyampeto'’, “nuru”, “prabumhn",
and many more for the area o f disposal; “harta pusaka” for family property;
harta pentyarian , “pasini” fo r individual property; “barang Jcalakeran
for possessions belonging to a number o f people (family, village or any
sort o f community).
T he gauging o f the real value of such popular legal terms, the ap
plication o f these terms for a refined native adat law language, and the
discovery of the correct rendition of these native adat law terms in
D utch has to be done for each law-area. This field of work is not like a
ladang* a dry, hilly field, exhausted and unproductive within a few years,
rather it is like a sawah, a wet rice field, which brings forth its yearly harvest
as a result of continuous work.
CHAPTER XIV
P R E C E D E N T A N D T H E JU D G E
A. PRECEDENT IN ADAT LAW
T T W OU LD BE unreasonable to call “law” any pronouncement other

‘“‘than a deliberate statement made by a functionary of the community
who is charged with its determination in actual decisions. With this in
m ind, the Anglo-American jurist G ray 1 seems to me to have given the
correct answer also to the question which in theory arises when it is nec
essary to distinguish between valid adat law and mere adat, that is, between
a valid though unwritten legal norm and unwritten norms of other kinds.
T he decisions rendered by officials, chiefs, and judges can and should
always be regarded not only as applying concretely in a given case but also
as setting precedents for “ similar” cases—cases, that is, which in whole
or in part are relevant as to the facts and in this sense similar and subject
to precedent. Such decisions indicate the legal principles which are valid
in the community; their concise legal forms are drawn from a multitude
o f less precise living patterns, from conceptions and values cherished in
the community. Even such legal principles, however, are of unequal weight,
o f expanding and contracting substance, according to whether they are
supported by systematic or unsystematic linkage with other principles, by
a sound evaluation of social reality and the demands of humanity, or by
the relative frequency of precedents. All of these factors can strengthen
or weaken each other.
B. THE TASK OF THE JUDGE
He who has to make a decision must be fully aware of his responsibility

as a factor in the growth of the law. He must always give his decision so
1 N ature and Sources o f the Law (2nd ed., N ew York, 1927)» PP* z l ^ ’
251
252 PRECEDENT AND THE JUDGE
that the principle which can be drawn from it will be valid, according to
his best knowledge, in the locale where he presides. In the first place, he
does this for the case at hand, but it is equally necessary for all the other
cases in so far as they contain similar relevant facts in similarly relevant
circumstances. Every authority who has to make decisions (specifically,
every judge) must take cognizance of prior decisions in similar cases, which
derive their special quality from the definite sense of responsibility on the
part of the person who laid down the previous decision. Moreover, the
result of the process of defining and formulating principles in and by means
of the decision is that each decision contributes something to that which
is understood as “ valid” . Thus both a psychological and a functional in
fluence flows from each decision. But only a certain influence. For it is
precisely the responsibility to the community, given to the judge or other
official who has to make a decision, that makes it possible and necessary
for him to confirm previous decisions in similar cases only in the event
that the decision seems tenable in the light of the whole adat law, as it is
integrated in the culture. The social picture continually changing, and
it may have been “misunderstood” in previous decisions. Flexibility is
fortunately possible, because there is no formal rule of the binding power
of precedent. Furthermore, it must be put to the test of the needs of hu
manity, which must be satisfied if the judge is to be able to take the re
sponsibility for the decision. This critical appraisal of previous decisions
naturally cannot be held separate from the critical appraisal of the degree
of capacity for his duty in general shown by the judge who made the de
cision. Judicial decision in adat law, is in the first place, a responsible
building upon that which has already been formed as law in the society.
I f the judge can find no previous decisions in cases with similar rel
evant facts, or if the decisions do not appear tenable, he must make a
decision, which, according to his best knowledge, is a legal decision and
thus has validity as a legal principle in the milieu in which he delivers
judgment. In order to make these decisions, he must absorb the native
legal system in its entirety; he must know the culture, and he must under
stand human values. The obligation to administer justice according to
adat law thus means: to give form in a valid legal decision in a way justi-
fiable for the present to that which is required by these factors—legal

system, culture, human values. Subjectively expressed, it means: to give
form to that which the feeling for law of the people in its reciprocal inter
action with the judge’s own legal conceptions requires as a valid legal
principle.
Neither of these subdivisions of the judge’s duty, thus differentiated,
presents itself as a sharply separated possibility in the endless variety of
practical dispensation of justice, but mostly as only half distinguished,
blurred elements of the judge’s activity.
This is the task of the judges according to adat law; both of folk justices
and professional judges. Essentially, there is no difference in their function,
however great the difference may be in the degree of their awareness of
their duty. The local chief (the village judge) working from within the com
munity, proceeds intuitively (to put it extremely) according to the norms
formulated above. The academically trained professional judge, coming in
from the outside, has become aware of his duty through theoretical con
siderations of the norms which are valid for him. The structural force
of the adat law, the tough resistance of the law against misconstruction and
infraction, even by central legislators, judges and administrators, can only
be explained by the legal system of the adat authorities in daily practice
in litigation and by local variations of the legal order. The duty laid by
law upon the professional judge to administer justice according to adat law
means: ( 1) the duty to consider valid that which the native legal order has
expressed as valid law, systematically understood and built up, as well as
(2 ) the duty, during the investigation of the tenability of the principle in
question and during the shaping of the decision, insofar as no statutory
rule exists, to take the culture of the native people as a point of departure.
The fact that the occidental^ educated jurist is incompletely prepared for
the task, and that the organization of judicial authority inadequately sup
ports this task (although great improvement has been shown) has led to a
deprecation and misinterpretation of the intrinsic legal value of the judges’
decisions (especially of those of the native courts). This, however, cannot
subtract from its fundamental significance. However, it must be remem
bered that the government judge (within his competence) must decide ac-
254 PRECEDENT AND THE JUDGE
cording to the nature of his function as well as in terms of statutory

enactment. He may not refuse to administer justice. Furthermore, he must
judge according to law and give legal decisions relevant to the milieu in which
he exercises his functions. This duty to give a judicial decision makes his
decision into a principle of law and demands of him the afore-mentioned
manner of procedure. The idea that a judge can manage with a glance at
former decisions, while clinging to his knowledge of formal jurisprudence
cannot be drawn from this argument.
Nor do we mean to imply that the task of the judge should consist
exclusively in giving legal decisions and not in bringing about adjustments
with every power at his command. This fact falls outside the field of
argument.
The argument, that the judge must go into the desa to find the adat
law in the form of enforceable principles, and that the judge, in making his
decisions, can manage very often with a decision on the facts, leaves unclear
what is to be understood by “finding” , by “enforceable” , by “principles” .
The first requirement for the carrying out of justice by professional
judges is to come to an understanding of the relationship of adat law to the
task of judges; figurative language must not be permitted to divert attention
from the functional value of the decision and the responsibility of the
judge which goes with it.
It is impossible simultaneously to educate jurists to become profes
sional judges over the Indonesian and to plead “no judge-made law for
the native” . This irreconcilable contradiction has brought evil consequences,
and will continue to do so as long as it is not overcome. Van Vollen-
hoven’s slogan of 1905—“no judge-made law”—was, in its limited aim,
both understandable and efficient as a fact in his struggle against “ uni
fication” and the intrusion of western law. Now, in the atmosphere which,
thanks to van Vollenhoven, has been cleared, it must be replaced by the
principle, “judge-made law for the Indonesian firmly based on folk law” .
[See above, introduction, p. 14.]
Living contact with the legal milieu over which the judge will preside,
“going into the desa” , is the only way for any judge to test former decisions
in accordance with adat law and to be able to lay down new decisions in a
responsible way. He must do this in order to get subjective experience in

the vital elements of the legal system at first hand, so to penetrate Indone
sian legal conceptions. However, he does not by any means find everything
that he needs “ in the desa ” !
A most important task of the judge is to try, in the service of the com
m unity, to have the parties find successful arrangements by proposing
m utual settlements on their own responsibility, which make legal decisions
unnecessary. He must try to use the “ rukunan” practice of the Indonesians;
and the more he does so, the better. Along with the active role, which the
judge plays in this, there must be joined an awareness of what legal de
cision he should make in case the parties do not wish to settle out of court.
I f the parties do not want to settle, then the judge must make a decision
alone, on his own responsibility. This brings into play all that we have
said above about the way in which the legal decision must be arrived at.
Practically, regular contact of the judge with the native law-milieu
for every legal decision is impossible. This is partly so, because of the very
nature of the case and the character of questions which have arisen (for
instance: the “legal personality” of a certain association and its consequences
for responsibility of officers and members, the whole or partial re
sponsibility of an attesting witness to a notice of arrival of a registered letter,
which was signed by someone other than the addressee, the determinability
of injury to creditors, the results of a public sale by an unauthorized person,
etc., etc.).It is partly due to lack of time, to lack of knowledge of the
languages involved and such circumstances. Insofar as contact is impossible,
and the judge therefore has no material to examine, he must follow previous
decisions, which have been tested against the legal system as known from
books, and to “natural justice” . In case of doubt or incompleteness of
opinion, principles of great authority, supported by many decisions, offer
more resistance to possible deflection than principles with less decisiveness,
to be found in one precedent, for instance .2
2 Fo r further details on this subject, see: B. ter Haar, De rechtspraak van de
landraden naar ongeschreven recht (The decisions of the Superior Indigenous Courts
according to unwritten law), Address, Batavia 1930J B . ter Haar, Her adatprivaat-
recht van Nederlandsch-Indie in wetenschap, practijk en ondenoijs (The adat private
law in research, practice and education), Address, Batavia, I 937 i F- D- Holleman,
PRECEDENT AND THE JUDGE
256
C. M ETH O D O LO G Y
This book has attempted to describe the system of Indonesian adat

law. In doing so, adat law principles have been repeatedly treated as valid
legal principles. It has been possible to mention only a few of the dem ons
on which these principles are dependent. For the most part, my mtcr-
pretation of adat law principles is based on knowledge of the literature
and, thus, is second or third hand. Naturally, this has been sifted out,
according to my judgment, on the basis of the tenability of the information
as related to the law system, social facts and the needs of men, as I see and
value them. . .
It is, after all, the task of the scholar engaged in a scientific description
of adat law to choose and to say what, according to his opinion, has to be
valid and when decisions have to be taken. The responsible judge in acuon
has constantly to answer, in wnaeto, whether the judgment is tenable,
and the adat law principle correctly formulated.
in Weekblad voor Privaatrecht, Notarh-Ambl en Regmraue, N o. 35 5 7 (1938), and

in 147 Tijdschrift (1938), P- Logemami, 148 T ; | d s ^ i f t (1938), p. 2 7 . with
postscript note by Holleman on P- 36; Van H ftu m , in Weekblad . . ., N o 35 8 7 ,
with postscript by Holleman. See also B. ter Haar, Ada,erfrecht op Java (Adat law
o f i n h e r i t a n c e o n J a v a ) , 1 4 8 T i j d s c h r i f t (1 9 3 8 ) 3 PP> 2 ° i •
CHAPTER XV
A D A T LAW L IT E R A T U R E
A. C O N T R IB U T IO N S O F V A N V O L L E N H O V E N
r 8 ''H E CORE OF the bibliography of adat law—the keystone of the past

and the foundation for the future—will always be the great work of
van Vollenhoven, Het adatrecht van Nederlandsch-Indie (The Adat law of
the Netherlands Indies), volume I, Leiden, 1916-1918, reprinted 1925.
T he literature for each law-area, which afforded the material for an orderly
and systematic description, can be found therein; at the close of the work
is an indication of the years—between 1906 and 1918—in which each of
the law-areas received attention. Ethnological jurisprudence, which before
that time only occasionally approached a science of adat law, received its
interpretation in terms of adat law in van Vollenhoven’s book. It is by no
means unimportant, in view of the advance in the scientific knowledge of
adat law during the intervening twenty to thirty years, to re-examine the
works o f Snouck Hurgronje,1 Wilken,2 Liefrinck,3 Kooreman,4 De Rooy, 5
the Eindresutne,6 and others, but for the most part the material gathered
before 1906 is adequately treated in van Vollenhoven’s standard work.
1 Cf. C . Snouck Hurgronje, Verspreidc Geschriften (Collected Works), 5 vols.,

Bonn & Le ip zig , 19 2 3 -2 5.
2 See the collected works of G. A. Wilken, Verspreide Geschriften (Collected
W orks), 4 vols., Semarang, 19 12 , and Opstellen over adatrecht (Views on adat law),
Sem arang, 1926.
3 Particularly F . A. Liefrinck, Geschriften van . . . Bali en Lombok (Writings
on Bali and Lom bok), Amsterdam, I 9 2 7 *
4 P. J . Kooreman wrote a number of works dealing with the adat law of the
west coast o f Sumatra which are still of value.
5 J. F . A. de Rooy is noted for his writtmgs on the adat law of the Padang
highlands, west coast of Sumatra.
0 Eindresume van het . . • onderzoek naar de recnten van den inlander op den
grond op J a va en Madoera (Final summary of the investigation of the native land
laws in Java and Madura), 3 vols., 1876-96.
257
258 ADAT LAW LITERATURE
Consequently only a few of these early works will be mentioned herein

after. From another point of view, the first volume of van Vollenhoven’s
book shall remain the central point of adat law literature and bibliographies,
since all subsequent literature rests on van Vollenhoven’s systematic foun
dation. The more recent data and opinions which have been made known
expand the system, fill it out, set it right here and there, but never actually
destroy it.
Volume II of van Vollenhoven’s Het adatrecht van Nederlandsch-
Indië3 Leiden, 1918-1931, treats of the adat law of the foreign orientals,
religious law, and above all, the shaping and development of adat law by
the judge 7 and the “ formulation” of adat law, with its countless interrela
tions with government—statutory—law.
Volume III gathers together various papers on adat law, written by
van Vollenhoven during the years 1904-1931, amoftg which is included
Indonesische rechtstaal (Indonesian Legal Terminology), 1922. [Some
further studies on adat law by van Vollenhoven are to be found in his
Verspreide Geschriften (Collected Works), vols. I and III, Haarlem, 1934,
1935, including his address before the Law School of Batavia on“ De poëzie
in het Indisch recht” (Poetry in the Indies law), 1932.] In addition, four
separate booklets not included in his collected works : (1) Miskenningen
van het adatrecht (Misconceptions of adat law), Leiden, 1909, reprint 1926,
concerned with the native community, right of disposal, adat law system,
and adat law of Java ; (2) Een adatzvetboekje voor heel Indie (An adat code
for the entire Netherlands Indies), Leiden, 1910, reprint 1925 ; (3) De
Indonesiër en zijn grond (The Indonesian and his land), Leiden 1919,
reprints 1925 and 1932 ; (4) De ontdekking van het adatrecht (The discovery
of Adat law), Leiden, 1928, translated into French by Mlle. N. Pemot, La
découverte du droit indonésien (Paris, 1933).
7 On this, compare ter Haar, H et adatprivaatrecht van Nederlandsch-Indië in
tuetenschap, practijk en onderwijs (The adat private law in researchj practice and
teaching), Groningen, 19 37 , pp. 5 -15 , and the criticism of H ollem an, 147
Tijdschrift (1938), pp. 428-40; and ter Haar’ s last significant work, “ D e beteekenis
van de tegenstelling participerend-kritisch denken en de rechtspraak naar adatrecht”
(T h e significance o f the antithesis of participating-critical thinking and judicial
decision in the adat law), Mededeelingen der Nederlandsche Akademie van Weten-
schappen , A fd . Letterkunde nieuzve reeks, 4 (Amsterdam, 19 41).
Among van VoUenhoven’s lesser publications are many polemics

based on and supported by his scientific work. His fight took four lines:
( 1) against unification or other displacement of adat law by western law : 8
(2) for recognition of the value of adat law decisions ; (3) against misunder
standing of the rights of native communities and of the individual’s relation
to the land ; (4) against misconception of the nature of the native communi
ties as such. Much has been won on these four fronts, but everything that
science has established has not yet carried over into practical adminis
tration, decision and legislation.
A collection of factual data to be found in the official archives, in
the decisions of the judges of the archipelago [in the studies of ethnologists
and other scientists, in the writings of missionaries and travellers] as well
as some original papers on adat law, was carried on under the direction
of van Vollenhoven from 1910—after 1933 under the direction of van
Ossenbruggen—, in a periodical publication entided Adatrechtbundels
(Bundles of Adat law), sponsored by the Commission for Adat Law, and
published by the Royal Institute for Linguistics, Geography and Eth
nology of the Netherlands Indies. Forty-two volumes have appeared;
volume XL (1938) contains a detailed table of contents of the preceding
volumes, prepared by Mr. van Ossenbruggen. An index of Indonesian
terms in the first twenty-nine volumes is to be found in volume XXX,
and for the volumes following in volume XL.
From 1914 on, under the guidance of van Vollenhoven, selections
from the literature of ethnological jurisprudence are collected and published
under the topics they illustrate, in ten volumes. The series is called
Pandecten van liet adatrecht (Digest of adat law), and contains : (1) the
right of disposal with respect to land and water, (2 ) preference rights and
usufruct oi land, (3) native possession of land and the right of tillage, (4)
the remaining rights with respect to land and water, (5) inheritance law,
(6 ) marriage law and betrothal, (7) law of marriage forms, (8) the law of
family relations and of divorce, (9) the law of obligations, and (10) adat
tort law, added in 1936 under the direction of Mr. Idema.
In 1927 there appeared the second edition of the L itera tm rlijst voor
8Cf. supra, Introduction^ pp. I3ff.
het adatrecht van Indonesie (Bibliography of the Adat law of Indonesia),

continued by annual supplements which were collected into a single
volume—to September 1, 1937—by M r. Holleman and published in
Adatrechtbundel XL [and as a separate volume, Aanvullende Literataurlijst
voor het adatrecht van Indonesie, 1927— 1 September 1937 (Supplemental
Bibliography of the Adat law of Indonesia), ’s-Gravenhage, 1938].9
In 1923 all statutory provisions concerning the native private law
relating to adat law were collected, under the leadership o f van Vollen-
hoven, under the title Verordeningen inlandsch privaatrecht (Ordinances
o f native private law), third edition, Zwolle, 1934.
The Dictionnaire de termes du droit coutumier indonesien (Dictionary
o f Indonesian legal terms), edited by van Hinloopen Labberton, at the
instigation of van Vollenhoven, appeared in 1934, published by the Royal
Academy of Sciences of Amsterdam.
B. CASE L A W
Everything in the nature o f adat law decisions that is to be found in

Het Indisch Tijdschrift van het Recht (The Indies Journal of Law),
formerly called Recht in Nederlandsch-Indie (Law in the Netherlands
Indies), since 1849; in the Itidisch Weekblad van het Recht (Indies Law
Weekly) from 1864-1914; in Wet en Adat (Law and Adat) from 1897-
1899; and in the Adatrechtbundels since 1911, was gathered together in
the dissertation of M r. K. L. J. Enthoven (under von Vollenhoven), Het
adatrecht der inlanders in de jurisprudentie, 1849-1912 (The Adat law of
the natives in the cases, 1849-1912), Diss., Leiden, 1912. This was con
tinued by M r. J. C. van der M eulen in Het adatrecht der inlanders in de
jurisprudentie, 1912-1923 (The Adat law of the natives in the cases, 1912-
1923). Diss., Leiden, 1924, and by Dr. E. A. Boerenbeker, in Het adatrecht
der inlanders in de jurisprudentie, 1923-1933 (The Adat law of the natives
9 T h e re exist two further supplements, in pamphlet form , to the end o f A p ri

19 4 3 . In addition, the bibliography o f the Reference Departm ent, L ib ra ry o f C o n
gress, N etherlands E ast Indies. A bibliography o f books published a fter 1 9 3 0 , and p erio d
ical articles after 1 9 3 2 , available in U .S . Libraries (W ashington, I945)> contains
a section X V I C ) devoted to adat law, but it is quite incom plete. C f also R .
K ennedy ¡(Bibliography o f hidonesian peoples and cultures (N e w H aven, 19 4 5).
in the cases, 1923-1933), Bandung, 1935. Since 1929 the decisions of the
native judges have been collected in special numbers, landraadnumtners
(Superior Native Court numbers), of Het Indisch Tijdschrift van het
R ech t; the 24th latidraadnummer appeared in August, 1941. The section
“ inlandsch recht” (native law) of the card file of Netherlands Indies cases
(begun in 1937) facilitates the consulting of decisions rendered since 1929.
A collection Indonesische dorpsakten (Indonesian village Documents),
compiled and translated into Dutch by Raden Mr. Tirtawinata and
M r. W.A. Muller, at the suggestion of van Vollenhoven, appeared in
Batavia in 1933.
With the above in mind and noting the twenty doctoral theses on
subjects in the adat law—partly by government officials utilizing their
own experience—prepared under van Vollenhoven, some idea is gained
of the significance of his work for the science of adat law ; anyone who
knew him realizes that a list of his writings can give only a scant picture
of that which he established by word and deed.
C. S T U D IE S O N A D A T L A W AREAS
The items o f the Bibliography o f 1927 and its Supplement mentioned

supra, are arranged by topic within the proper law-area, as well as alpha -
betically by author, so that it is possible to discover in an instant exactly
what studies have appeared concerning a given law-area, and to fix their
chronological sequence. Merely to provide an indication of the principal
sources used in this volume, a list of the outstanding books follows, with
the law-areas and districts arranged under three heads.
1. C O M P R E H E N SIV E LEGA L STU D IES
The areas which are given a designedly systematic treatment of the

entire adat law, on the basis of the present position of adat law science,
a. The Toba-Batak law district
Vergouwen, J. C., Het rechtsleven der toba-bataks (The Law-ways of
the Toba-Bataks), ’s-Gravenhage, 1933.
This book stands at the head of the list in accord with the fixed practice
of treating the law-areas in the established order (Atjeh, Gayo, Alas and
Batak lands, etc., through West Java); but it might well be first
if the sequence were dependent on the manner in which a forceful
description of the sphere of adat law is joined to a treatment of typical
problems of the adat law. Unfortunately, the book is incomplete
with respect to a part of land law, but reference is made to the book
of Ypes, listed infra.
b. Borneo
Mallinckrodt, J., Het adatrecht van Borneo (The Adat law of Borneo),
2 volumes, Diss., Leiden, 1928.
Treats of the area more than specific questions of law.
c. Bali
Korn, V. E., Het adatrecht van Bali (The Adat law of Bali), 2nd ed.,
’s-Gravenhage, 1932.
First published as a dissertation, the book has an imposing quantity
of well-organized material. The same writer’s monograph, De dorpsre-
publiek Tnganan Pagringsingan (The village republic of Tnganan
Pagringsingan), Santpoort, 1933, is more precise.
d. Central Java
[Djojodigoeno, Mas M. M., & Tirtawinata, Raden, Het adatprivaat-
recht van Middel-Java (The Adat private law of Central Java),
Batavia, 1940.
The most recent of comprehensive studies on the adat law of a given
area, this excellent work by two Indonesian jurists displays the enor
mous amount of field work that modern adat law science deems
necessary for the “ restatement” of the native law.]
e. West Java
Soepomo, Raden, Het adatprivaatrecht van West-Java (The Adat
private law of West Java), Batavia, 1933.
In this book, legal questions receive in general acute and full emphasis,
while the author s field work provides full explanation respecting
the legal significance of the cultural environment.
The books mentioned above all rest on the first-hand investigations

of the authors into the law of the localities.
2. GEN ER A L E T H N O L O G IE S
Among the works which treat adat law within a general description
of the land and people, but whose authors are not especially trained in
ethnological jurisprudence, the following may be mentioned.
a. Atjeh
Snouck Hurgronje, C., De Atjehers (The Atjehnese), 2 vols., Leiden,
1893-94, [trasnlated into English, “The Achehnese,” 2 vols., Leiden,
1906.]
Although antedating van Vollenhoven’s work, the book is still worthy
o f mention.
Kreemer, J. J., Atjeh, Leiden, 1922-23.
Adds nothing new to the works of Snouck Hurgronje and van Vollen-
hoven.
b. Gayo
Snouck Hurgronje, C., Het Gajoland en zijne bewouers (The Gayo
land and its inhabitants), Batavia, 1903.
c. Batak
Ypes, W. K. H., Bijdrage tot de kennis van de stamverwantschap, de
inheemsche rechisgemeemchappen en hei grondenrecht der Toba- en
Dairibataks (Contributions to the knowledge of relationship systems,
native legal communities and land law of the Toba- and Dairi-
Bataks), Amsterdam, 1932; indexes thereto in Adairechtbimdels, vol.
38, pp. 476 ff.
d. Nias
Schroder, E. E. W. G., Nias, 2 vols., Leiden, 1917.
e. Toradja
Adriani, N., and Kruyt, A. C., De Bare'e-sprekende Torad]o’s van
Midden-Celebes (The Baree-speaking Torajas of Central Celebes),
3 vols., Batavia, 1912-14.
Kruyt, A. C., De West Toradja op Midden-Celebes (The West Toraja
of Central Celebes), 4 vols., Amsterdam, 1938.
264 DAT LAW LITERATURE
3. S P E C IA L IZ E D LEG A L ST U D IE S
Studies by authors trained in the adat law devoted to particular aspects

of adat law, arranged according to law-areas and districts:
s. Batak
Haga, B. J., Not a omirent de inlandsche rechtsgemeenschappen in het
gewest Tapanoeli (Notes on the native legal communities in the
Tapanuli region), Mededeelingen van de Afdeeling bestuurszaken der
Buitengewesten, Departement van Binnenlandsch Bestuur, series B,
no. 6 , Weltevreden, 1930.
Boemi, A. Enda, Het grondenrecht in de Bataklanden (Land law in
the Batak lands), Leiden, 1925.
b. Minangkabau
Guyt, H., Grondverpatiding in Menangkabau (Land pledging in Minang
kabau) Diss., Batavia, 1936.
[Morison, H. H., De Mendapo Hiang in het district Korintji (The
Mendapo Hiang in the district of Korintji), Diss., Batavia, 1940.]
c. South Sumatra
Hoven, W., De Pasemah en haar verwantschaps-3 huwelijks- en erfrecht
(The Pasemah and its laws of relationship, marriage and inheritance),
Diss., Leiden, 1927.
Hazairir, De Redjang, De volksordening, bet verwantschaps-3 huwelijks-
en erfrecht (The Rejang. The social organization, the laws of kinship,
marriage and inheritance), Diss., Batavia, 1936.
Royen, J. W. van, De Palembangsche marga en haar grond- en water-
rechten (The Palembang marga and its land and water laws), Diss.,
Leiden, 1927.
[Lublink-Weddink, W. F., Adatdelictenrecht in de rapatmarga-rechtespraak
van Palembang (Adat tort law in the rapatmarga decisions of Palem
bang), Diss., Batavia, 1939.]
Royen, J. W., van, Nota over de Lampoengsche marga’s (Notes on the
margas of Lampong), Mededeelingen van de Afdeeling bestuurszaken
der Buitengewesten., Departement van Binnenlandsch Bestuur, series
B, no. 7, Weltevreden, 1930.
d. Malayan Territories
Wink, P., Erkenning en vorming van rechtsgemeenschappeh in het gewest
Riouw en Onderhoorigheden (Recognition and formation of legal
communities in the territory Riouw and dependencies), idem, series
B, no. 3, Weltevreden, 1929.
e. Minaliasa
Holleman, F. D., Verslag van een onderzoek inzake adatgrondenrecht
in de Minahasa (Report of an investigation of adat land law in the
Minahasa), idem, series A, no. 11, Weltevreden, 1930.
f.South Celebes
Friedericy, H. J., De standen bij de Boegineezen en Makassaren (Classes
among the Buginese and Macassars), Diss., Leiden, 1933.
g. Amboina
Holleman, F. D., Het adat-grondenrecht van Ambon en de Oeliassers
(Adat land law o f Ambon and the Uliassers), Delft, 1923.
h. Lombok
Nieuwenhuyzen, Th., Sasaksch adatrecht (Sasak Adat law), Diss.,
Leiden, 1932.
i. Middle and East Java
Holleman, F. D ., Het adatrecht van de afdeJing Toeloengagoeng (The
Adat law of the division Tulungagung), Buitenzorg, 1927.
This booklet covers transactions in land and obligations in this portion
o f the residency o f Kediri.
Stoppelaar, J. W. de., Balambangansch adatrecht (Balambangan Adat
law), Diss., Leiden, 1927.
T he adat law o f Java’s eastern extremity.
Laceulle, F. A. E., Eindverslag over het desa-autonomie-onderzoek op
Java en Madoera (Final report of the investigation into village auton
omy in Java and Madura), 1929.
• West Java
■Knottenbelt, A., Verpanding en zekerheidsstelling in den Oost-Preanger
(Pledge and security in the East Preanger), Diss., Batavia, 1934.
A supplement to the volume on West Java by Soepomo, noted above.
k. Law in the Principalities

[Meyenfeldt, H. D. von, De inheemsche rechtspraak in de zelf- besturende
landschappen ter Oostkust van Sumatra (Native decisions in the self-
governing lands of the East Coast of Sumatra), Diss., Leiden, 1936.]
Ronkel, Ph. S. van, Het Maleische adat-wetboek van Koetai (The
Malayan Adat Lawbook of Kutai), Mededeelingen, Koninklijke
Akademie van Wetenschappen, Amsterdam, 1935.
Caron, L. J. J., Het Handels- en Zeerecht in de adatrechtsregelen van
den rechtskring Zuid Celebes (Commercial and maritime law in the
Adat law rules of the South Celebes law-area), Diss., Utrecht, 1937.
Soepomo, Raden, De reorganisatie van het agrarisch stelsel in het gewest
Sozrakarta (The reorganization of the agrarian system in the territory
of Surakarta), Diss., Leiden, 1927.
Kern, R. A., Javaansche rechtsbedeeling. Een bijdrage tot de kennis der
geschiedenis van Java (Javanese administration of justice. A contri
bution to the knowledge of the history of Java), Bijdragen tot de Taal-,
Land- en Volkenkunde van Nederlandsch-Indie, vol. 83 (1927). [Also
reprinted, Amsterdam, 1927.]
Soeripto, Raden M., Ontwikkelingsgang der Vorstenlandsche wetboeken
(Development of the Lawbooks of the Principalities of Java), Diss.,
Leiden, 1929.
4. P E R IO D IC A L L IT E R A T U R E
Articles in periodicals and extracts in the Adatrechtbundels cannot

be detailed here. These are to be found listed in the comprehensive bibliog
raphy, and supplement thereto, mentioned supra10. A few articles, however,
should be noted, for they fill in gaps in the literature of the adat law, and
for this reason are valuable sources for an introduction to this subject.
Included herein are a number of the most recent contributions to the study.
[Hazairin, Reorganisatie van het rechtswezen in Zuid-Tapanoeli (Reor
ganization of the administration of justice in South Tapanuli), Indisch
Tijdschrift van het Recht, vol. 154 (1941), pp. 85-158.]
[Hazairin, De gevolgen van de huwelijksontbinding in Zuid-Tapanoeli
18 P a g e 260
(The consequence of dissolution of marriage in South Tapanuli), idem,,

vol. 154 (1941), pp. 169-203.]
G uyt, H ., Hoofdlijnen van het huwelijksrecht in de Lampongs (Main fea
tures of marriage law in the Lampongs), idem vol. 145 (1937) pn
178-249.
[Prins, J.j Bijdrage nopens verloving, huwelijkssluiting en echtscheiding
in Lematang Ilir (Contributions on betrothal, marriage and divorce in
Lematang Ilir, subdivision in the residency of Palembang), Koloniaal
Tijdschrift, vol. 28 (1939), pp. 608-26, and vol. 29 (1940), pp. 87-98.]
Adam, L., Uit en over de Minahasa. Bestuur, zeden en gewoonten en het
daarmede samenhangende adatrecht van het Minahasische volk (Notes
on the Minahasa. Administration, manners and customs and the Adat
law connected therewith among the Minahasa people), Bijdragen tot de
Taal-, Land- en Volkenkunde van Nederlandsch-Indië, vol. 81 (1925),
p.p. 390-499.
[Míete, A., Het adatrecht der Sangihe- en Talaudeilanden (The Adat law
o f the Sangihe and Talaud Islands), Koloniaal Tijdschrift, vol. 27 (1938),
p.p. 356-71.]
Friedericy, H. J., Ponre. Bijdrage tot de kennis van adat en adatrecht van
Zuid-Celebes (Ponre. Contributions to the knowledge of Adat and Adat
law of South Celebes), Bijdragen, vol. 89 (1932), pp. 1-34.
Bertling, C. T ., Huwelijk en huwelijksrecht in Zuid Celebes (Marriage
and marital law in South Celebes), Indisch Tijdschrift van het Recht, vol.
147 (1938), p p . 122-210.
[Klerks, J., Gegevens over Keieesche huwelijksadat (Data on marriage
Adat of the Kei Islands), Bijdragen, vol. 98 (1939), pp. 285-323].
[Cunha Goncalves, L. da, Direito consuetudinario dos indígenas de Timor
(Customary law of the natives of Timor), with a French translation,
Adatrechtbundels, vol. 39 (1937), pp. 443-474.]
[Nascimento Moura, J. J. do, O direito consuetudinario em Timor
(The customary law in Timor), with a French translation, idem, vol. 39
(1937), pp. 475-499.]
[Haar, B. ter, Adaterfrecht op Java. Rechtsvorming en Rechtstoepassing
(Adat inheritance law in Java. Law-making and law-administration);

Indisch Tijdschrift van het Recht, vol. 148 (1938), pp. 201-239.]
• [Bertling, C. T ., Rechten nopens gezinsvermogen naar de op Java geldende
adat (Rights concerning family property according to Adat valid in
Java), idem, vol. 150 (1939), pp. 705-35.]
D. S T U D IE S O N ADAT LAW T O P IC S
In addition to studies devoted to particular law-areas or law-districts,

a num ber of dissertations, written under the guidance of van Vollenhoven
at Leiden [and subsequently], treat of single topics throughout the whole
of Indonesia. Among these mention may be made of:
[Haar, B. ter, Het adatproces der inlanders (The Adat procedure o f the
natives), 1915.]
[Mieremet, A., De hedendaagsche inheemsche rechtspraak in Nederlandsch-
Indie en haar regeling (Present-day native decisions in Netherlands
Indies and regulation thereof), 1919.]
Joustra, W. G., Indonesisch waterrecht (Indonesian water law), 1922.
Adam, L ., De autonomie van het Indonesisch dorp (The autonomy of the
Indonesian village), 1924.
Haga, B. J., Indonesische en Indische democratie (Indonesian and Indian
democracy), 1924.
Soebroto, Indonesische sawahverpanding (The pledging of sawah in Indo
nesia), 1925.
Boomgaard, S. R., De rechtstoestand van de getrouwde vrouw volgens het
adatrecht van Nederlandsch-Indie (The legal status of the m arried woman
in the Adat law o f the Netherlands Indies), 1926.
Straten, L.B. van, De indonesische bruidschat (Indonesian bride-price), 1927
Boerenbeker, E. A., De vrouw in het Indonesisch adatrecht (Women in
Indonesian Adat law), 1931.
Soekanto, B., Het gewas in Indonesia religieus-adatrechtelijk beschouwd (The
harvest in Indonesia considered from the religious and Adat law point
of view), 1933.
Lesquillier, N. W., Het adatdelictenrecht in de magische wereld-beschouwing
(Adat tort law in its magic setting), 1934.
D am , W. P. van, Mandsche gemeente en indonesisch dorp (Native com

m unity and Indonesian village), 1937. Special mention should be made
o f the portions which discuss—in a different terminology than that em
ployed in this work—the genealogical and territorial factor in folk
organization, and that dealing with the Sunda village.
[Roest, J., Het sclnddvraagstuk in het adatstrafrecht van den indischen
archipel (The question of guilt in the adat criminal law of the Indies
archipelago), 1941.]
N ote should be taken of a University of Wageningen doctoral dissertation:
Scheltema, A. M. P. A., Deelbouw in Nederlandsch-Indie (Sharecropping
in the Netherlands Indies), Diss., 1931.
[Further, a recent University of Utrecht dissertation and the criticism
thereof by two Leiden professors should be included:
s Jacob, E. H ., Landsdomein en Adatrecht (State domain and Adat law),
Diss., 1945.
[Korn, V. E., & van Dijk, R., Adatgrondenrecht en domeinfictie; twee
critieken (Adat land law and the fiction of domain; two criticisms),
Gorinchem, 1946].
And finally, the book of Boeke, J. H., Dorp en Desa (Village and Com
mune), Leiden, 1934, taken in connection with the preceding work by
the same author, “Dorpsherstel” (Village revival), in the 1931 volume
o f the Indisch Genootschap, and with the article “De grenzen van het
indonesisch dorp” (The bounds of the Indonesian village), in Tijd-
schrift van het Koninklijk Nederlandsch Aardrifkskundig Genootschap,
vol. 54 (1937), give an overall coverage of the subject of social groupings
in the territorial communities. [The whole is again treated in Boeke’s
latest books: The Structure of Netherlands Indian Economy, New York,
1942, and The Evolution of the Netherlands Indies Economy, New York,
1946].
Literature on adat law, in the narrow sense of the term, is relatively

scarce for the area of the Great East and the Timor archipelago. Ethnolo
gical literature in which anything on adat law can be found is almost en
tirely periodical; the book by Father H. Geurtjens, Uit een vreemde wereld
of het leven en streven der inlanders op de Kei-eilanden (In a strange world;

or life and aims of the natives in the Kei Islands), ’s Hertogenbosch, 1921,
is, with a few others, an exception to this. The dissertation of J. Ph. Duy-
vendak, Het kakeangenootschap van Seran (The kakean society of Ceram),
Almelo, 1926, is of significance for the understanding of social organization,
kinship and marriage law in that area. The dissertation of F. A. E. vaD
Wouden, Sociale structuur-typen in de Groote Oost (Types of social struc
ture in the Great East), Leiden, 1935, also is important.
Anthropologist will be particularly interested in the studies of H. Th.
Fisher, on the “ so-called system of bilateral relationship”, in Koloniaal
Tijdschrift, vol. 23 (1934), on “kinship” , in Mensch en Maatschappij for
1935, and on “the asymmetrical cross-cousin marriage”, in Tijdschrift
voor de Indische Taal-, Land- en Volkenkunde, vol. 76 (1936). To the
sociologist the inaugural address of F. D. Holleman, De commune trek in het
Indonesische rechtsleven (The communal force in Indonesian law-ways),
Groningen, 1935, affords a basis for further investigation and speculation.
[The jurist may look into the Batavia address of B. ter Haar, Het adat-
pnvaatrecht van Nederlandsch-Indië in wetenschap, practijk en onderwijs
(Adat law of Netherlands Indies in research, practice and education),
Groningen, 1937.]
It is interesting to note that some publications by Indonesians in the

native tongue are of significance in the field of adat law:
For the Batak area, Patik Dohot Uhum ni Halak Batak” (Laws and
ordinances of the Bataks), Singapore, 1899, translated into Dutch by
Vergouwen, in Adatrechtbundel, vol. 35 , pp. ] ff.
For the law-area of the Minangkabau, the booklets of D. Sanggoenodiradjo,
Kitab tjoerai paparan adat lembaga alam Menangkabau, 1919, and Kitab
atoeran adat lembaga alam Menangkabau, 1924.11
For the West Java law-area, Hadji Hasan Moestapa, Bab adat-adat oerang
Priangan djeung oerang Soenda lian ti eta, Batavia, 1913, a translation of
.XTU p f ’ ter Haar, Inheemsche verhandelingen over Minangkabausch adatrecht”

(Native studies on Minangkabau Adat law), Indisch Tijdschrift van het Recht , vol.
140 (1934), PP- 152-59-
ADAT LA W IN IN D O N E S IA 271
which into Dutch began to appear in the 1931 volume of the periodical
Djawa.
It may be seen from this bibliographic synopsis that a number of law-

areas are lacking a comprehensvive work on adat law. A filling in of these
gaps is called for. Although there are partial descriptions of sections of
adat law for some of these areas, the absence of systematic working out of
the whole material in integrated form creates a truly great need. One book
is approaching completion on the subject of adat private law for the law
district of Central Java .12 In South Tapanuli, Minangkabau, the Lampong
Districts, the Minahasa, and South Celebes, to name only areas with
government administration of justice over the native population, the need
is as great. There is work enough for a corps of adat jurisprudes.
E. ADAT LAW POLICY

[Supplemental mention may finally be made of one aspect of adat
law that has been omitted by ter Haar from this bibliography, namely, a a
law policy. In his great zeal to carry on the great work which was oste
by van Vollenhoven, to record the native adat law and fashion ^
modern needs, ter Haar has definitely omitted the names and
those who would advocate unification or codification of adat law on
et- rpcent
ern lines. Chief among these is I. A. Nederburgh, whose most enhage,
Hoofdstukken over adatrecht (Chapters on Adat law), vol. I, s gurvey of
1933, presents the case against “customary” adat law.13 F°r a
recent adat law policy see ter Haar, “Halverwege de nieUVVe_ ,^ ^ /^ for
politiek” (Halfway on the new Adat law policy), in Koloniale ’ in
1939. T he part o f ter Haar himself in this sphere is s^ cere^ . P°keteek;enis
the necrology by Soepom o, “Prof. Mr. B. ter Haar Bzn. !)n ^
voor het adatrecht en de adatrechtpolitiek” (Prof. Mr. B* ^ ¿ schnjt
His significance for Adat law and Adat law policy), m are ais0
van het Recht, for July, 1941.14 Divergent views on adat law po i
fyrci P*
12 [Now published, the work of Djojodigoeno and Tirtawmata /1033),* to which
13 See the answer by ter Haar in Rechtsgeleerd Aiagozijti} v
Nederburgh replied in the following volume. f d in rhe necro-
14 A further appreciation o f the role played by ter Haar is to
272 AD A T LA W LITERATURE
reflected in some of the works of members of the so-called Utrecht school,

which was established to counteract the influence of van Vollenhoven’s
Leiden school. I. Cassutto was a professor at Utrecht, whose most recent
works on adat law: Het adatrecht van Nederlandsch-Indie, zijn waarde voor
het heden en voor de toekomst (The Adat law of Netherlands Indies; its value
today and in the future), Utrecht, 1935, and Handleiding tot de Studie van
het adatrecht van Nederlandsch-Indie (Introduction to the study of Adat
law of the Netherlands Indies), Haarlem, 1936, have been sharply criticized
by disciples of the Leiden school.]
logy, by F . D . E . van Ossenbruggen, “ Levensbericht van Barend ter Haar B zn .”

(Biography o f Barend ter Haar Bzn.), in Jaarboek, Nederlandsche Akademie van
Wetenschappeti, Amsterdam, 19 4 1.
IN D E X E S
1. GENERAL INDEX
A d a t, definition of, 5. ' Cattle, 1 4 1 , 149.

A ^ at / aw* COnstitutional basis of, 34. Chiefs, 66, 8 0 ; fee for services, 1 1 7 ;
A d a t law , encroachments upon, 35 ; functions, 70, 92, 95, 1 1 5 , n 9, i 37j
change o f ethnic status 4 0 ; rules of 1 5 1 , 180, 1 8 1 , 1 9 9 ,2 0 4 ,2 1 6 ,2 2 4 , 228,
equity and justice, 4 2 ; statutory 35, 2 3 7 , 244 , 2 53.
1 0 0 ; voluntary acceptance o f Euro Christianity, influence of, 18 5 , 2 0 0 ,2 1 3 .
pean law , 37. Christians, Indonesian, 12 , 1 6 1 , 18 3,
Adat law in legal system, 11. 194 -
Administration of justice, geographical Circumcision, 146.
;
table of, 3 1 j government, 1 5 ; native,
*5s 23 table of, 20.
doption, 63, i 52j 169, 174, 192, 2 2 7 ;
Citizenship 1 2 , 6 1, 63.
Clan, 54, 59, 64, 67, 70, 150.
Classes, social, 6 1, 73, 78, 230.
annulment of, 178. Codification, 12.
A du ltery, i 99> 204. Colony. See Migration.
A g e n cy , 1 6 5 , 16 9 , 18 0 , 2 1 1 . Community. 53 ; autonomous, 60, 66,
Agrarian legislation, 109. 73 ; formation of, 64, m > nuclear
greements, political, 2 6 , 28. village, 79, 93, 17 7 , 2 3 0 1 regional, 5 ~>
A lien s, 6 3 , 7 1 , 84, 9 3, 96, i o i , 10 5, 108, 64 , 67, 70, 74, 80, 98, 1 0 1 ; territorial,
1 1 7 , 128 , 1 3 1. 58, 6 1, 77 , 8 0 ; village, 57 i village
Ap o stasy, 2 0 3 .
Appanage, 75, 85j 103.
Arbitration, coercire, 204.
, union, 57.
Competence, judicial 16.
Assimilation, 63. Conflicts of laws, 46. ~.

Associations, 7 8 , 14 7 . See also Founda Contract, 1 5 5 ; breach of, i 33 > 3 »
tions. commission, 1 5 2 ; fo'tering, 5 >
Automobile accidents, 2 4 1 . labor 15 5 .
Cooperatives 147.
Barrenness, 19 8 ,2 0 4 . Court of Islamic Affairs, 29, 204.
I ^°» I ^ 1 > breaking off, 182. Courts, European, 16.
Bibliograph y, adat law, 2 5 7 , 260. Courts, native, 17.
ö m d e r, 1 2 8 , 1 5 2 , 1 5 4 ; marriage 180. Credit 130 , 144, I 5 °> x54 > 235
•Births, 14 6 . Creditors, right cf, I54 > 2 I 3 > 2 2 1 ’ ’ 5
Boas, F . , 6. 243-
Boundaries, 5 8 , 99. Credit union, 136 , 147 -
Bribe, 156. Crim e, 239.
Bride-price, 62, 116 , 120, 12 6 , 146 , 152» Crops, 1 4 1.
156» 163, 17 1, 183, 185, 187, 190, 191,
J 93i I97i 199» 202, 209, 222, 225, 227. Daendels, 28.
Debts, 1 2 1 , 1 3 2 , 150 , 2 3 1 ; joint, 2 1 1 .
Cace la w , 260. Decisions, judicial, 1 6 1 , 244» 2 5 2 -
Cash transaction, 115, 135» *54> 17%> D elicts, 62, 2 34 , 239.
18 5 , 18 7, 2 2 1 , 2 27 , 235. Desertion, 204.
Caste, 60 , 83 . Dictionary, 260.
273
274 INDEXES
D irectly governed territory, govern Foreign rule, influence of, 3.

ment justice in, 15 ; native justice in, Foundations, endowed, 15 9 ; religious,
24. 15 9 ; secular, 160.
Disinheritance, 2 2 2 , 228 . Fraud, 1 2 5 , 15 3 .
Disposal, area of, 96, 99, 10 5 , 1 0 7 ; dual Friedericy, H .J., 88.
area of, 98 ; personalization o f area Fruits, 2 io , 220.
of, 10 2. Funerals, 146 , 2 3 1 .
D isposal, right of, 64, 68, 89, 92, 108, G ift, 95, 1 3 2 , 1 4 6 ; betrothal, 15 6 , 180,
n o , 1 1 3 , 1 3 1 , 2 2 1 , 2 30 . 1 9 0 ; land, 1 2 6 ; marital, 2 0 1 ,2 0 7 ,
D issension, marital, 2 0 5. 209 ; reciprocal, see Bride-price,
D istrict court, 18 . Reciprocity.
D istrict judge, 17 , 18. Grave offering, 2 1 5 .
D ivorce, 19 7 , 20 2, 2 0 5, z n ; Christian, G ray, 2 5 1 .
20 5 ; Mohamm edan, 2 0 1 ; registra Group, local, 98.
tion of, 2 0 1. Guardianship, 17 4 .
Documentation of land transactions, 12 7 ,
I 57 * Headman, 65, 68, 78, 8 5 ,10 0 , 1 1 2 , 12 4 ;
Double descent, see Kinship. functions of, 96, 12 7 .
D o w ry, 190, 229. H eir, 17 8 , 2 24 .
Dream s, bad, 198. House, 1 1 8 , 1 4 1 .
Dualism , 1 1 , 15 .
D utch law, see Western law. Illegitim acy, 167.
Incest, 16 9 , 18 2 .
East India Company, 1 1 , 87. Indonesia, definition of, 1.
Election, definition of, 62. Infirm ity, 203.
Elopement, 1 8 3 , 184. Inheritance, 29, 62, 93, 1 5 3 , 2 0 6 ,2 1 2 ,
Endogam y, 56, 62, 170. 2 14 .
Equilibrium , 18 5 , 198, 2 3 4 , 2 38 , 240 ; Inheritance by single child, 2 1 7 , 226 .
see also M agic. Insanity, 164.
E q u ity, rules contrary to, 4 2. Insult, 236 .
Estate, component parts of, 2 2 8 ; dis Intensification, definition, of, 104.
tribution of, 2 2 4 , 2 3 2 ; life, 2 2 6 ; Intent, 2 4 1 .
undivided, 2 1 5 , 2 3 2 , 2 4 3. Intermarriage, 179 , 182.
Ethnic groups, change o f status of, 4 0 , Irrigation, 93, 148.
legal classification of, ir. Islam, influence of, 19 4 , 200.
Ethnology, Indonesian, 1. Islamic law, 4, 28 , 138 , 15 9 , 16 5, 18 3 ,
Europeans, 1 1 . 19 5 , 2 1 2 , 220 , 228.
Evidence, 128.
Exogam y, 56, 59, 1 7 1 . Judge, professional, 2 5 3 ; task o f the,
Expropriation, 103. 2 51.
Extra-territoriality, 26.
K adi, 30.
Fam ily, 60 ; conjugal, 166 ; extended, Kinship, 54, 60, 74, h i , 1 5 1 , 17 0 , 1 7 2 ,
65, 68, 99, 1 1 5 , 1 1 7 , 2 19 . 174> 2 0 1, 2083 2 2 5 ; alternating uni
Feasts, 2 3 1 , 238 . lateral, 56, 1 7 2 , 1 8 6 ; bilateral, 5 6 ,7 3 ,
Fetish, 76.
170 , 1 7 2 , 18 7 , 1 9 1 , 2 0 5, 2 2 5 ,* biologi
Fictions, 1 3 7 , 158. cal, 166 ; classificatory system, 1 7 3 ;
Findings, 2 54 . double descent, 1 7 1 , 1 7 2 ; matrilineal,
Fines for delicts, 2 3 5 , 2 3 7 . 55 j 68, 7 c , 17 0 , 18 6 , 19 2 ; patrilineal,
Foreign orientals, 1 1 , 39, 44.
55 a 17> 17 0 , I 74 > I 77 > 186, 19 2 , 209,
275
INDEXES
see suitor service, in fra ; matrilineal,

2 2 6 ; unilateral, 55 j 60, I 7 0j * 74 » *79 18«? 192 ; m ixed, 42 i prohibition
18 7 , 2 2 5 . o f I 7 3 J second, 2 2 9 ; substitution,
K ollew ijn , R .D ., 46. see Levirate; suitor service, 190.
K o rn , V . E . , 88, 248. Marriage by abduction, 184, lS9 > b Y
K ris , legal use of, 157 - elopement, 183; by l8 ° .
Marriage ceremonies, 180, 183, 184 -
Lab o r, forced, 84, 108 ; see also Levies. Marriage contract, 196. 2D2j
La b o r agreem ents, 1 5 1 , 155 - _. Marriage portion, 187, i g8> 9 >
Lan d , deferred occupation of, 1 19 > *re*:
use of, 1 3 9 ; lease of, with deferre Marriage right, violation of, see Divorce.
rent, 1 3 3 ; ownership of, 61 ; parti Mediation, 233*
tion of, 1 2 6 , 1 1 7 , 2 0 8 ; pledging 01, Methodology, 256-
10 7 , 1 1 6 , 1 2 0 , 1 3 4 , 1 3 6 ; prepaid ren Migration, 64, 174 , 2 l8 > 2 2 4 -
tal of, 1 3 4 ; reclamation of, 9 2 » re_
^ " im e d a n law, * Islamic taw.
demption of, 2 4 3 ; sale of, 116 , 124,
^55 - Monogamy, 194 - Landj pledging
La n d rights, 8 2, 86, 89 ; see also Pre Mortgage, 136 >
emption, Recapture, Usufruct. of.
La n d supervisor, 100 , 1 1 4 . Mosque, 159-
Lan d transactions, h i ; bilateral, 1 1 5 > Mutual aid, 144-
documentation of, 12 7 .
L a w , com mon, 2 6 ; comparative 49 J Natives, ii-
customary, 4 ; judge-m ade, 254 > Pn " Naturalization, 4 •
m itive, 3 , 4. Negligence> l49„’ " ‘
L a w areas, 6, 1 1 1 . Negory court. 1 8. „jnent, 86- » 4 .
L a w book, 83. Netherlands Indies S
Law yers, native, 85, 248.
Lease o f land, Batavian, 140 ; with de i ° 9 , « I ’, 1! ! ' ! « .
Nobility, 81,
ferred rent, 1 3 3 .
Nonage, l 63*
Legitim acy, 4 2 , 16 7. Norm, legat -5
Leiden school, 2 6 2 , 2 7 2 . Notary, 85> 2 2 3 ‘
Levies, 86, 10 3 , 109. N u b ility, 193-
Levirate, 1 7 4 , 18 6 , 1 9 1 .
t a i * involving lan d, 1 3 0 .
Lim itations, statute of, 245. Obligations, 14 ’ ^ l4 3 .
Lineage, 69, 7 5 , 9 8, 10 5 , 107, n i j I I 7 - Occupation, unlaw
O fficial law. 14- j2? . fie lds reserved
M agic, 54, S i , 83, 10 2, U 4 > l 2 5 > l44, Officials, 8-,
! 55 j 197 j see also E q u ilib r iu m - forj 94^ r e agreement, I52 -
M agistrates, 19. S ld' 3f S t of exclusive, 106.
M aintenance, 169, 2 0 1 , 205, 2x2. Option, n s ut
M allinckrodt, 248.
M arriage, 56, 62, 146, 179 5 adop^ . , ’
6 3 , 16 3 , 172, 17 4 , I 77 j bri- ?4 o il,p S se ss io n , Property.
209, 2 2 5 ; a s y m m e tr ic a l, 7 .. f * Q, .
d e p r ic e , see B r id e -p r ic e ; c " 1" : ’ 168 ; dissolution
Christian, 19 5 ; co m p u lso ry, 1 ’cr0ss- Parental relation, 167, ’
c o n tin u a tio n , see S o ro ra te ,
0f> l69, x6o
cousin, 17 7 i dissoluti^ . é c h a n g e , Parents, f ° j ter’ 1 0I ; marriage, 182,
vorce ; emergency, if >9 » livine_jn. Payment, divorce,
186, 19 1 ; Islamic, i ?5 i llVing ’
276 INDEXES
1 8 5 , 192 ; part, 1x8. 242. 243.

Peonage, 1 5 1 . Reciprocity, 144 , 146, 2 35.
Periodicals, 266. Reclamation, 99, 106, 1x 2 .
Person, legal, 54, 160, 16 2 , 255 ; natural, Recognition of child, 42.
16 3. Redemption, right of, 1 1 6 , 1 1 9 , 1 2 2 ;
Persons, law of, 162. see also Land, redemption of.
Pledge, engagement, 18 1 ; land, see Relationship, law of, 1 1 5 , 154 , 166 ; see
Land, pledging o f ; marriage, 18 1. also Kinship.
Police judge, 2 1 . Religious justice, 28.
Policy, government, 12 , 2 7 1. Rental, prepaid, 10 7, 1 1 6 . 126.
Polygyny, 194. Representative, see Agency.
Possession, mixed, 98 ; native right of, Repudiation, see Divorce.
82, 92, 104, 107, 1 1 9 , 14 1. Residence, 6 1, 74, 139 .
Power o f attorney, 165. Residendy judge, 16, 17.
Precedent. 26, 1 5 1 . Ritual, 9 1 , 1 1 4 , 1 1 9 , 12 5 , 146 , 240.
Pre-emption, 91. Royal court, 19 , 2 2 .
Preference, right of, 105.
Priest court, 29. Sale, see Land, sale of.
Princes, functions of, 8 1, 1 5 7 ; influ Scholten, P ., 38.
ence upon communal life, 85 ; judi Security, 1 3 3 , 138 , 1 5 1 .
cial powers, 83, 85, 103. Self-governing lands, government jus
Principalities, 58, 95, 107, 114 . tice in, 2 2 j native justice in, 25.
Procedure, adat, 4 5 ,2 4 0 . Separation, 2 0 1 , 205.
Profit-sharing, 14 3, 149. Settlement, inter vivos, 220 , 2 2 4 , 228 ,
Proof, burden of, 2 1 1 . 229.
Property, alienation of, 89, 93, 98, 102 ;
Settlement of controversy, 2 5 5 .
ancestral, 2 1 6 •, communal, 2 3 0 ; de Shame, feeling of, 2 34 , 2 3 5 , 2 3 7 .
signated, 2 3 1 ; extended family, 2 10 , Share cropping, 96, 108, 1 1 9 , 130 , l 34 >
2 1 6 , 2 1 8 , 2 1 9 , 229 j family, 68 ; fam
13 6 , I 43 j I 49 > 156 .
ily group, 208 ; household, 2 29 ; joint, Slavery, 62, 73.
2 1 8 ; kin group, 207. Snouck Hurgronje, C ., 5. 29.
Property3 marital, 1 5 1 , 205, 2 26 , 2 2 7 ; Social organization, 59 , 7 ° > see a^s0
acquired before marriage, 2 0 8 ; ac Clan, Comm unity, Kinship.
quired during marriage, 208, 2 10 , Sororate. 186, 19 1.
228 , acquired personally, 207 ; divi- Sovereignty, 99.
soin of, 2 1 1 ; inherited asal, 206, 207, Statutes on adat law, 50, 260.
2 10 , 2 1 1, 2 1 2 , 2 2 2 ,2 2 9 j inherired pu- Succession, intestate, 2 2 2 , 2 2 3 ; sub
saka , 1 4 1 , 207, 2 16 , 2 1 8 , 2 2 5 ; joint- stitute, 2 26 , 228.
ly held, 209 : jointly presented, 2 1 3 . Superior Court o f L a w , 16 , 1 7 , 18 .
Property, movable and immovable, 144; Superior N ative Court, 18 , 29.
reversion of, 2 2 2 ; small-family, 207 j Supreme Court, 16.
special value, 229 1 transferable, 1 1 7 •
see also Disposal, Land.
Property marks, 9 1, 106, 11 4 , 157 . Taxes, see Levies.
Protocol, 62. Tenancy, 1 1 9 .
Public Sale, forced, 12 5 , 2 2 4 , 2 3 1 . Tension, 166, 17 4 , 180 , 19 4 , 2 0 4 ,2 0 6 ,
Punishments, criminal, 93, 240. 224 .
Terang (publicity), 1 1 6 , 12 8 , 1 3 1 , 1753
17 6 , 17 9 , 2 2 1 .
Rapat, 25, 176. T e r Haar, B ., 1 , 143 163 2 3 , 3 4 , 45 , 4^.
Recapture, power of, 90, 93, 10 3, 1 1 5 , Terminology, 8 9 ,10 5 , 1 2 0 ,1 8 0 , 18 7 , 2 3 6 ,
277
INDEXES
Village, see Community.

246. Village justice, 26, 30.
Territorial factor, 54 > 75 » 77 - Visman report, 16.
Testament, see W ills, last,. Vollenhoven, C . van, 14 , 2 7 , 30, 89, 120,
T h eft, 2 37 . 15 2 , 248, 249, 2 5 4 -
T im e , 1 1 8 , 1 2 3 , 242.
T raders, 84. Wages, 1 3 2 , 151 -
Trees, rights in, 9 1, 97 > 1 1 8 ,1 4 1 .
W ar, 99, 102.
Trespass, 2 3 5 . Western law, i 7 j 37 > 4 2 , 4 6j j 3 6> 220,
T rib e , 60, 7 2 , 85.
2 39 , 246.
Widower’s share, 2 1 2 , 2 2 6 , 2 2 / .
U nification, o f law, i 3 j 2 2 , 254 - Widow’ s share, 2 1 2 , 2 26 , 2 2 7 .
U sufruct, 90, 10 5, 107. Wills, last, 2 22 .
Utilization, right of, see Usufruct. Witness, 119 , 12 7 , 2 2 1 , 2 2 3 , 224 .
Utrecht school, 2 7 2 .
Vergouwen, J .C ., 248.
2. IN D E X OF PLACES, TR IB E S , AND LANGUAGES
A b u n g , 62, 7 5. Bolaang Mongondow, 80, 100, 126.

A g am , 7c. Bone, 85.
Alas. 67. Bom eo, 5 5, 60, 6 1, 7 3 , 7 5 , 84, 100, 10 1,
Am bon, 54 , 56, 63, 7 1 , 76 , 83, 86, 87, 106, 109, 1 3 3 , 170 , 1 7 5 , 17 7 , 17 8 , 184,
9 5, 9 7 , 99, 100, 1 0 1 , 104, 1 3 3 , *4 *, 190, 1 9 1 , 198, 209, 2 10 , 2 29 , 24 3.
14 6 , 1 4 7 , 149 , 15 4 , 16 5 , 16 7, 190, 19 1 Buginese, 65, 1 1 1 , 14 7 , 168, 2 10 , 236.
19 2 , 19 7 , 2 0 1, 204, 20 7, 2 16 , 2 1 7 , 2 18 . Buru, 59, 68, 100.
2 2 2 , 2 4 1.
Anak Lakitan, 75. Celebes, 6 1, 109., 1 1 1 , 170 , 17 6 , 2 3 1 , 238.
Angkola, 5 7 , 96, 100, 169, 17 5 . Central Celebes, 60, 7 3 , 187.
A ru Islands, 54. Central Java, 93, 1 3 2 , 1 9 1 , 2 2 7 .
Atjeh, 56, 64, 66, 67, 80, 84, 85, 12 4 , Central Tim or. 17 3.
170 , 1 7 1 , 180 , 188, 189, 19 8, 209, Ceram, 67.
2 2 2 , 2 29 . Cheribon, 93, 229.
Bagelen, 19 1 . Dyak, 95, 10 2, 1 4 1 , 1 5 2 , 1 7 3 , 180, 184 ,
Bali, 54 , 56, 5 7 , 6 1, 65, 7 7 , 78, 82, 83, 188, 189, 199, 206, 207, 2 1 9 , 2 2 5 ,
84, 85, 95, 96, 97, 99, 10 5, 12 4 , 128, 2 3 2 , 249.
I2 9 > 1 3 5 , 1 3 6 , 1 3 7 , 1 4 1 , 150 , 153 ,
15 7 , 16 8 , 16 9 , 1 7 3 , 1 7 4 , 175, 177, East Java, 92, 176.
17 8 , 1 8 1 , 1 8 2 , 18 4 , 1 8 5 , 186, 18 7 , Enggano, 67.
189 , 190, 1 9 2 , 19 3 , 206, 208, 2x0.
215, 2 1 7 , 2 1 8 , 2 2 5 , 2 2 6 , 2 30 , 2 3 2 , Flores, 67, 81.
237, 2 4 2 , 2 4 3 , 248.
Banggai, 8o, 90. G ayo, 54, 56, 65, 67, 68, 17 5 , 17 6 , 18 7 ,
Banjar, 65. 19 2.
Banka, 5 5 , 80. G ayo-Lueus, 65, 66.
Bantam, 7 9 , 12 4 . Gedongtaan, 64.
Banten, 66, 7 5. Gorontalo,^80, 243.
Batin, 65, 70. Gowa, 85.
Baree, 7 4
Barus, 7 2 . Halmahera, 189.
Batavia, 148. H itu, 7 2 , 76, 19 7 , 2 16 .
Batak, 5 5 , 56 , 5 7 , 59 , 6 1, 7 1 , 7 2 , 95, 96,
10 7 , h i , 1x 3 , 1 1 7 , 1 1 9 , 12 4 , 12 5 , Indragiri, 99.
12 6 , 1 3 5 , 1 3 6 , 1 4 3 , 14 6 , 150 , 1 5 1 ,
16 4 , 1 7 2 , 1 7 4 , 1 7 7 , 180, 18 7 , 190, Jam bi, 70, 84, 85.
19 3 , 19 6 , 200, 2 0 7 , 208, 2 1 5 , 2x7, Java, 30, 5 5, 57 j 6 1, 79, 82, 83, 84, 85,
2 19 , 220 , 226 , 229 , 238, 2 4 3 , 248, 00, 95 , 97 , 98, 99, 100, 10 3 , 109, i i i ,
249. 1 1 6 , 12 4 , 12 6 , 12 8 , 1 3 3 , 1 3 5 , 13 6 ,
Benkulen, 6o, 7 5 , 1 9 1 , 202. *39 , 14 2 , 14 4 , 146 , 14 7 , 14 8 , I 5 l ;
Bilitonj 5 5 , 80. J 5 2 , 1 5 5 , 1 5 7 , 160, 16 4 , 16 5 , 168,
Bim a, 84.
I 7° , 174 , 17 6 , 1 8 1 , 1 8 2 , 18 7 , 189 ,
Boalemo, 106. 1 9 1 , 19 2 , 196, 199 , 2 0 1 , 204, 206,
Bodi-Chaniago, 70. 209, 2x0, 2 1 2 , 2 1 5 . 2 20 , 2 2 3 , 2 2 4 j
278
INDEXES
279
2 2 7 , 2 2 9 , 2 3 1 , 232, 241, 243, 249, Muña, 229.
K aili, 109. N ew , Guinea, 67. io r

Ngada, 8 1, 90.
K am par, iox.
N gaju -D yat, 7 3 , I3S j l6
Karangasem, 86,
207 , 249 . /5t Iii2i
Karo Batak, 65, 15 1, 240, 242.
Kastala, 96. Mias, 5 «, 59. 69, 70, u r, ,6 8 , i 7 5 , l8o>
K edu, 94.
North Java, 104.
K ei Islands, 54, 63, 71, *44, * 77, I î-
K en ya-D yak , 73. O t Danum, 73.
Klem entan-Dyak, 54, 73-
K odi, 56. Padang, 84.
K orinchi, 56 , 70, 156, 181, 193- Padanglawas, 72.
Kota-Piliang, 70. Palembang, 7 5, 84, 86, i 9I
K ubu, 75. Pasemah, 10 1, x7 3 , I76} l8 :/ l86>
189, 191, 199, 2 0 3 , 20 7, 2 2 6 , 2 2 7 ’
Lam pong, 5 6 , 6 2, 66, 86, 165, I 75» Peminggir, 75, 190.
i 84 j 18 7 , 2 0 2 , 2 1 5 , 217, 22^-
Penyabung, 73.
Landak-D yak, 17 7 , 2 1 7 , 226. Pepadon, 17^,, '191, 19 3, 225.
Lawangan Beloh, 73. Preanger/79, 132.
L e p o -T im e i, 7 3 . Pubiafl, 66, 67, 68.
f'unan-Dyak, 73.
t !mapulUh -K 0ta, 70.
L'ngga-RiaUj 6?.
Rebangan, 173, 184,
Rejang, 56, 59, 96, 125,128, 169, 172,
L° ? n 5: 6
Ji
;-iVAaa^yan-Patai Dyak, 73.
,
*73, 117 *81, 182.
R oti, 190, 193.
Maanyan-Siung Dyak, 73, 1 1 5 , 177.
Macasser, 199, 206, 2 10 , 2 1 1 . San dan Toraja, 74.
M ad u ra, 30, 55, 58, 79 . 174, 204, 2x3. Sajurmatinggi, 65.
Malay, 55 , 84, 1 16 , 139 , 144, 147, 1 5 1 , Salayar, 148, 202.
180, 18 7, 199, 2 0 1, 206, 237. Samosir, 72.
M en ad o, 105. Saparua, 172, 186.
M an d ailin g, 57 , 12 3 , 17 5 , 193. Savu, io i, 1 7 1 , 19 1, 225.
M a n d a r, 7 7 , 15 7 . Semendoean, 56, 173, 177, 186, 193,
M en taw ei, 55, 167, 17 3, 180. 2 1 7 , 226
M inahasa, 55, 63, 74, 88, 92, 99, 102, Sewo Mego, 193.
107, 1 1 1 , 126, 1 3 2 , 148, 15 2 , 153, Sigi, 109.
156 , 167, 168, 176, 180, 188, 189, Simeulue, 67, 84.
196, 2or, 202, 204, 209, 2 18 , 220, Simelungen-Batak, 103.
M inangkabau, 55, 58, 59, 60, 6 1, 63, Solo, 202.
64, 65, 67, 70, 74, 96, 99, 100, 105, South Bomeo, 30.
X07, I H , n 6 , 124, 12 5, 126, 128, South Celebes, 30, 54, 62, 64, 76, 85,
13 2 , 144 , ! 46 , 148, 156, 1 7 1 , 172, 94, 95, 104, 126, 132 , 143, 157,
17 4 , 17 5 , l8 ° , 18 5, 192, 193, 195, 176, 177, 180, 184, 188, 195, 196,
196, 197, 206, 208, 2 10 , 2 1 5 , 2 16 , 199, 202, 209, 210, 2 12 , 2 2 1, 227.
2 1 7 , 2 18 , 222, 223, 225, 228, 236, South Sumatra, 55, 57, 66, 75, 106,
248. 133, 168, 187, 192, 193, 208, 227.
South Tapanuli, 90, 97, 187,191, 195,
Molo, 5 6* . 0
Moluccas, 56, 63, 74, i » 7 * 196.
in d e x e s
280
T o b a -B a ta k , 59, 64, 7 1 , 118 , 12 3 , 1 2 4 ,
Sula Islands, 86. 1 6 2 , 1 7 2 , 18 5, 190, 19 1, 222 , 2 2 5 ,
2 2 9 , 2 3 2 , 2 4 3 , 248.
T o b e lo , 1 8 1.
19 2. T o Lainang, 191-
T o M o ri, 7 3, 180.
Toraja, 54, 63, 74, 84; 94 , i 1 1 » 1 1 5 ,
i S d S S , t * . » * • Il6>,81* I99> 2I°’ 180, 18 2 , 190, 193, 2 2 5 , 237.
248.
Su ra b aya, 86. Tulungagung, 243.
Tu lu n g Bawang,
T a n a h D atar, 7 ° -
T a p a n u li, 2 5 , 8 4 , 241 . Uliasers, 63, 76.
T a y a n - D y a k , 177» '’
^ 7 est Borneo, 236.
T e r n a t e , 3 ° , 8 4> « 5 , i ° 9 - W est Java, 12 3 , 209.
T idore, 84, «5- ,g ,g 9 ^ est Toraja, 102, 109, 200, 219 .
$ £ £ » * P a l r l g s i n g a n , 8 8 , 9 3 , 96- 99,
141 , 143, l8X* I94, 223'
•KT ^1?
P e r tin a,k; S Uita'K arya
D JA K A R TA
MPER
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а.

Tanggal No.kartu Paraf,, 1'

TR AN SLA TED FRO M T H E D U T C H

There is much need of L a w books for students o f

In view of this, the Publisher considers the repub­

M ay this book be useful for students and all who

N o . S ilsila h :.......... ..................................

T H E present work is a translation of the major part of a book with the

The Southeast Asia Institute, which is sponsoring this publication,

President, Southeast Asia Institute

New York, Nov. 1, 1947

II. Law in the Native C ulture......................................................... 5

III. The Place of Adat Law in the Legal System................... 11

IV. The Scope of the Volume...................................................... 44

C hapter II. Land Rights ............................................................ 89

C hapter III. Land Transactions......................................................... Ill

A. The Founding of Villages.............................................. Ill

C hapter X. Inheritance................................................... . . 214

C hapter XI. The Law of Delicts.................................................... 234

B. Indonesian Terminologies . . . 236

by E. Adamson Hoebel and A. Arthur Schiller

INDONESIA’S ID EN TIT Y is geographical, but not political. For,

«Ip in their everv-day life were not at any time

^ ^ ce<^ uPon l^ e PeoPje ^

Though deeply rooted in traditional culture, the Indonesian adat

II. LAW IN THE NATIVE CULTURE

S n o u c k HURGRONJE,the Dutch Indonesian-Arabic scholar and

T H E CONCEPT of law-areas4 is a central feature of the D u tch

*) rf , i ltskrl ^ translated “ law circle” by the Dutch scholar,

The Dutch use of the term „rechtskring” rather than “kultuurkring”

1. Atjeh, extending from the half-Batak land of Singkel on the west

5. Malay Territory includes the Rokan and Siak river valleys of

12. Temate Archipelago includes Halmahera and the five neigh­

III. THE PLACE OF ADAT LAW IN THE LEGAL SYSTEM

Our purpose in this section of the Introduction is to outline the place

The constitution of the Netherlands Indies guarantees equality before

4 Inasmuch as there exists no distinct Indies citizenship, children and de­

attempts were made to develop a law intermediate between the European

finally government justice their appropriate positions in the administration

The dualistic nature of the Indonesian state is further revealed in

18 Verslag van dc Comniissie tot bestudeerwg van staatsrechtelijke hervormingen

or native. True, the European courts are primarily made up of judges of

The judge of the European court has, occasionally, exceptional au­

20 Cf. infra, chap. X IV .

d. Balei Raja; Pradoto-

Government justice was curtailed by a law of i94o (Staatsblad, 1940, N o.

(rijksraad) at Menado, a government court with jurisdiction over most

89 Abolished by law o f 19 39 (Staatsblad, 19 39 , N 0 .76), effective Ju ly i , 1940

(a) N a tiv e justice in directly governed territo ry.— T he Indies Con­

A law of 1941 completely amended the 1932 enactment, adding a

indigenous administration of justice. There is a type of native justice,

44 T h e literature on village justice is not very extensive; leading studies in­

Moslem “ priest” should act as an adviser in every native court when

yet the Government, in a revision in 1931—not as yet in effect—preserved

87 Staatsblad, 19 3 1, N o. 53, Engelbrecht, pp. I5 3 ff. A n attempt to abolish

Celebes and Macassar (all except) Laikang, Goa

Lom bok (all)

W est Java (all)

D. THE CONSTITUTIONAL BASIS OF ADAT LAW

02 ter Haar, Begtnselen, pp. 9ff. T h e remarks on religious administration o f

II. In the sphere o f native adm inicm r;^ •

E. ENCROACHMENTS UPON THE ADAT LAW

1. Statutory. Legislative enactments have in various ways cut

63 Staatsblad, 18 32 , N o. 4*3 see Engelbrecht, op. cit.} p. 4 5 1.

In view of this, the Publisher considers the repub

12. Temate Archipelago includes Halmahera and the five neigh

4 Inasmuch as there exists no distinct Indies citizenship, children and de

The judge of the European court has, occasionally, exceptional au

(a) N a tiv e justice in directly governed territo ry.— T he Indies Con

44 T h e literature on village justice is not very extensive; leading studies in

It may be either entirely independent, or encompassed in a larger com

places their occurrence may be modified by the wishes of the adminis

In the sea ports and centers of government administration, they indi