HUKUM ISLAM DAN

LEGAL PLURALISM
Mohamad Abdun Nair
UIN Mataram
m.a.nasir@uinmataram.ac.id
 Content of the discussion

■ Definition and related concepts

■ The background
■ The development of scholarship in legal pluralism
■ Legal pluralism in the context of Islamic law
■ Islamic law and legal pluralism in Indonesia
■ A case study
■ Theoretical and practical contribution
Definition and related concepts
■ Basic definition: Multiple legal system within a social field/state; Population subscribes to a different body of law;
More than one law in the same area/field within a society/state
■ “Not the legal pluralism of traditional legal anthropology in which the different legal orders are conceived as
separate entities coexisting in the same political space, but rather the conception of different legal spaces
superimposed, interpenetrated, and mixed in our minds as much as in our legal actions. People’s life “is constituted
by an intersection of different legal orders, that is, by inter-legality” Santos’s conception of legal pluralism.
■ Istilah-istilah yang muncul selain legal pluralism: “weak and strong legal pluralism” (Griffith), “classic and new
legal pluralism” (Merry), “normative plurality/sociology of norms”/”actors-norms relationships” (Dupret),
“plurality of source of laws” (Gurvitch), “semi-autonomous social field” (Moore), “living law” (Ehrlich), “legal
levels: official, unofficial, postulate” (Chiba), “legal pluralism and interlegality” (Santos)
■ Folk/indigenous, state, official, unofficial laws, norms, social control, rules
■ “it is, nevertheless, neither the law of abstract rules nor the law of principles independent of the context in which
they are utilised nor the law as identified with social control nor the law of dichotomies (e.g., imported v.
indigenous, state v. people) imposed by scholars notwithstanding people’s actual practices; rather, it is the law of
people involved in the daily practice of law, i.e. the law made of the practice of legal rules, of their interpretive
principles, and of their eventual identification as plural”. Praxiological approach to legal pluralism (Dupret)
Background: Legal centralism, positivistic
approach to law and state absolutism

■ legal centralism: law is unified, autonomous and monolithic by

the state. Pure theory of law (Kelsen), analytical jurisprudence
(Austin) = legal positivism/positivist and formalist theory of
law
■ Hukum dikaji oleh legal practitioners, state actors, judiciary
■ No law beyond the positive law of the state
■ Law must be separated from moral
The birth and impetus
■ Against state legal centralism: Ide awal mendasar dan utama legal pluralism adalah menolak
definisi hukum yang berpusat pada negara. Law is not only what the state
imposes/commands. Law is also what people comply in their daily interaction with many
different norms, institutions and agencies.
■ Studi pada masyarakat primitive/tradisional; family, tribe, community
■ Kolonialisme dan lahirnya negara-bangsa yang baru. Status dan posisi hukum/lembaga lama
pada sistim hukum negara yang baru lahir: Anglo-Muhammadan Law, Burgerlikj Wetboek,
Regeling op de Gemengde Huwejliken/RGH
■ Hukum adalah temuan negara modern (colonial)
■ Sebelum negara lahir, sudah ada norma dan control social, dan setiap masyarakat memiliki
norma dan control sosialnya sendiri. Keberhasilan sistim hukum negara yang baru
tergantung sebara jauh hukum negara berinteraksi dengan sistim hukum “lama” tersebut.
Development of the scholarship: The old
mode
■ Focus/orientation: State vs non state law
■ Laws exist beyond the state
■ Examining legal orders outside of the state
■ Pre-modern time, Traditional tribes
■ Ethnographic studies on traditional societies/tribes
■ Malinowksi: the function of law; how law work and function within a given society
■ Ehrlich: living law
■ Anthropology of law
Current trend

■ Legal pluralism within a state law: laws for a different group of citizen of the state
(introduced mainly by colonial administration and post-colonial law)
■ Global legal pluralism: Interstate/international/global relationship
■ Legal pluralism as the impact of globalization, migration, international trade, human right,
CEDAW etc
■ Law and court are not seen as only the place of domination-control of the state-ruling
elites/class to its subjects but also a site for resistance by the minority and the marginalized
■ The state is a site of intense competition amongst multiple power brokers
■ Sociology of law
The Islamic context
Prevalent studies of legal pluralism in Muslim
society/country
■ State law, Islamic law and customary law in pre-modern and modern Muslim
societies/countries
■ Forum shopping of various madzhab or legal institutions
■ Islamic law and Western law
■ State law as Islamic law
Scope of research areas of Islamic law and legal
pluralism

■ Muslim minority in a no-Muslim state/society

■ Muslim minority in the West (US, Europe, Australia)
■ Schools of Islamic law, judge of different schools in an Islamic court
■ Islamic courts, civil courts, international courts/judiciary
■ The questions: What is Sharia? which Islamic jurisprudential tradition should be
permitted? to what extent Sharia may govern the lives of Muslims, and what legal areas
should be influenced by Sharia?
Islamic law and legal pluralism in
Indonesia: some notes on general issues
■ National legal policy: unification of law toward the principle of the union
of Indonesia (persatuan Indonesia)
■ Legal reform: codification, unification, certainty
■ Exclusion/abrogation: adat court
■ Accommodation: part of Islamic law and adat so long as they support the
agenda of the state legal reform
■ Frequent focus: Relations of state law, fiqh and adat within Family law
and personal status
Approach to Islamic law and legal
pluralism: “Idealist” and “Empiricist”
■ Fiqh as a social norm (fiqh sosial), not official law
■ Legal pluralism within a context of particular-local
community/society; Aceh, Minangkabau, Lombok
■ Relation between fiqh and custom relating to property,
inheritance and women’s status
■ Non-judicial settlement of disputes involving more than
one living norms in society
“Integralist”: bridging the gap

■ Integration of fiqh into state law: marriage law,

compilation of Islamic law, zakat/hajj law,
■ Indigenization of fiqh: “fiqh Indonesia”, “fiqh
madzhab negara”, “pribumisasi Islam”
■ Integration of adat into Muslim family code:
wasiat wajibah, gono-gini
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ICMR
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 A case study: interfaith marriage

■ Plural laws/norms: State law, changing state legal approach to interreligious marriage (Marriage Law 1/1974 and
Population Law 23/2006): Religions, Islam, Hinduism and Christianity (Protestantism and Catholicism): Adat,
social convention on marriage of people from different religious/social and ethnic background
■ Authorities: state and non-state, religious and secular, personal and institutional
■ Identity; gender, religion, ethnic
■ Questions: How various authorities and agency negotiate and settle conflict over interfaith marriage?
■ Conclusion: “In a pluralistic society like Indonesia, it is not simply state law or religion alone that plays a pivotal
rule in the management of interreligious relations and the resolution of social conflict, but also a compromise over
various norms (religious, customary), regulations (state law and regional agreement of interreligious relations),
and local wisdom, formulated and agreed upon by official agents (kades/lurah) as well as the parties concerned.
■ In other words, law refers to what the parties concerned perceive and reorient themselves to what they agree as
binding legally, religiously and socially.
How does legal pluralism contribute to the study of
(Islamic) law theoretically and practically?

■ THEORETICAL
■ Decentering the monolithic view and the autonomy of law (state, religious, customary)
■ Describing and examining actual implementation, contention and negotiation of Islamic
law amidst of plural norms and law
■ PRACTICAL
■ Offering alternative dispute resolution (non-litigation/judicial settlement)
■ Accommodating multicultural society, whose members subscribe to different
laws/norms, such as religious law (Islamic marriage law and inheritance)