Adat Law - Session I

University of Indonesia Faculty of Law

Undergraduate Programme- International Class
 Vereenigde Oost-Indische Compagnie (VOC)
was only a trading company, although
possessing quasi-governmental powers.

 When forced to tackle legal problems

pertaining the natives, the Company resorted
to the law of the natives.

 This policy was largely continued by Dutch

Government, when it took over VOC ‘assets’.
 Before all those foreigners came to Nusantara,
there were only Adats, or with any name it was
called.

 It was the foreigners who deemed it necessary

to think up a new name for Adat, due to
differences between their worldview and ours.

 Adat Law discourse emerged in response to

actual (colonial) governance necessities.
 Snouck Hurgronje coined the term Adatrecht,
van Vollenhoven used it as a technical-legal
term.
 Before that, Dutch Colonial Government went at
length in referring to Adat with these mind-
bogging terms. (i) Godsdienstige Wetten,
Volksinstellingen en Gebruiken; (ii) Godsdienstige
Wetten, Instellingen en Gebruiken; (iii) Instellingen
des Volks; (iv) Godsdienstige Wetten en Oude
Herkomsten.
 Keyser and van den Berg came to a
conclusion that the custom and law of a
certain people is the complete reception of
the religion it adheres.

 Snouck Hurgronje and van Vollenhoven

refuted the conclusion, arguing that religious
laws only influenced private aspects of
individual lives, while public aspects
remained under old provenances.
 Adat Law is the original laws of indigenous
population of Indonesia, derived from rules that
live within the communities, adhered to by all
members of the communities, and have legal
consequences (rechtsgevolg) i.e. if violated will
be subject to coercible sanctions.
 Should the criterion of ‘having legal
consequence’ is not fulfilled, such rules would
fall into the category of mere Adat, not Adat
Law.
 Adat Law is the whole body of rules that is
stipulated in authoritative decisions and thus
spontaneously enforced by all members of
concerning communities i.e. binding without
being previously enacted.
 Adat Law, thus, is known and recognized from
the decisions of legal functionaries within
concerning communities, as were decided in
accordance with structural bonds and values of
the concerning communities.
 There is somehow a relation, whether direct
or indirect, between ethics and law. There is
no place, therefore, in a perfect legal system,
for rules that are not in accordance with
ethics.

 In the case of “Adat Law”, the relation is so

direct that we don’t need such supposititious
term to understand what we mean with Adat,
as it is, whether in the notion of ethics or law.
In the new legal system of independent Indonesia,
in order to avoid confusion, the term ‘adat law’
shall best refer to these notions altogether:

(i) Unwritten laws that complement legislations

or non-statutory laws;
(ii) Conventions among state’s bodies and
agencies;
(iii) Laws arising from judges’ decisions or judge-
made law.
individual ethics USAGE

common ethics FOLKWAYS

MORES

CUSTOM
Institutionalized, internalized

ADAT LAW
 definition severity sanction

USAGE individual acts very weak reproach

acts repeated in the same reproached by

FOLKWAYS somewhat strong
form many people

habits accepted by many

MORES strong punishment
people
habits strongly
expelled from
CUSTOM internalized within the very strong
community
community
customs with legal adjustment and
ADAT LAW very strong
consequences punishment