Keebet von Benda-Beckmann

The dynamics of change and continuity in plural legal orders

AbstractThis paper introduces this Special Number. The work of the Project Group Legal Pluralism at the Max Planck Institute for Social Anthropology in Halle aims to continue the rapid expansion of recent decades of studies of legal pluralism. The recently much discussed phenomenon of globalisation has provoked a wide variety of local responses. Encounters are occurring between state laws, transnational laws, customary laws and religious laws, all of which are liable as a result to be transformed by processes of adaptation, appropriation and vulgarisation. This may lead to increasing pluralisation of laws, but can also in some cases produce homogenisation, or de-pluralisation.The notion of ‘law’ should not be limited to state, international and transnational law, but should be used to refer to all those objectified cognitive and normative conceptions for which validity for a certain social formation is authoritatively asserted. Law becomes manifest in many forms, and is comprised of a variety of social ph...Abstract This paper introduces this Special Number. The work of the Project Group Legal Pluralism at the Max Planck Institute for Social Anthropology in Halle aims to continue the rapid expansion of recent decades of studies of legal pluralism. The recently much discussed phenomenon of globalisation has provoked a wide variety of local responses. Encounters are occurring between state laws, transnational laws, customary laws and religious laws, all of which are liable as a result to be transformed by processes of adaptation, appropriation and vulgarisation. This may lead to increasing pluralisation of laws, but can also in some cases produce homogenisation, or de-pluralisation. The notion of ‘law’ should not be limited to state, international and transnational law, but should be used to refer to all those objectified cognitive and normative conceptions for which validity for a certain social formation is authoritatively asserted. Law becomes manifest in many forms, and is comprised of a variety of social phenomena. Constellations of legal pluralism may include legal systems, unnamed laws and religious laws. Within such a constellation elements of one legal order may change in various ways under the influence of another. Co-existing bodies of law may cover different geographical and political spaces, and longer temporal periods than are formally acknowledged. Inter-system demarcations also vary in complex ways in their form and in the uses to which social actors put them. Legal orders (and not only state laws) recognise or do not recognise other orders in varying ways, these constructions having potentially some influence on social actors, the nature and extent of which are empirical questions in each case. The emergence, maintenance and change of constellations of legal pluralism are thus the result of dynamic processes. Such processes are examined in this volume, and the following papers contain illustrations of all these issues.

Changing One is Changing All: Dynamics in the Adat-Islam-State Triangle

Abstract This paper explores the social processes in which the triangular relationships between adat, Islam and state rules are maintained and changed throughout time in West Sumatra. It is argued that, since the incorporation of Minangkabau in the colonial state, changes within one set of this relationship have tended to trigger changes in the others as well, but that this has occurred around shifting political issues. Over time new ‘hotspots’ develop in which the meaning of the relationships between the different legal systems as well as the moral values they represent are reconstituted. The paper focuses on the most recent period of renegotiating the relationships triggered by Indonesia’s decentralisation policy. This soon included the restructuring of village government, the role and validity of adat leadership struggles over rights to village commons, and a debate about the proper role of Islam. The paper discusses how negotiating relationships in one arena may affect the relationships in others. It is suggested that legal systems – and therefore constellations of legal pluralism – may have characteristic ways in which changes in one domain of social organisation, such as village government, affect other domains, such as resource use or inheritance. This is facilitated by factors such as the systemic character of legal systems and inter-system relationships, degrees of social and functional differentiation and institutionalisation, and density of multiplex and multifunctional relationships and institutions.AbstractThis paper explores the social processes in which the triangular relationships between adat, Islam and state rules are maintained and changed throughout time in West Sumatra. It is argued that, since the incorporation of Minangkabau in the colonial state, changes within one set of this relationship have tended to trigger changes in the others as well, but that this has occurred around shifting political issues. Over time new ‘hotspots’ develop in which the meaning of the relationships between the different legal systems as well as the moral values they represent are reconstituted. The paper focuses on the most recent period of renegotiating the relationships triggered by Indonesia’s decentralisation policy. This soon included the restructuring of village government, the role and validity of adat leadership struggles over rights to village commons, and a debate about the proper role of Islam. The paper discusses how negotiating relationships in one arena may affect the relationships in others. It i...

Myths and stereotypes about adat law: a reassessment of Van Vollenhoven in the light of current struggles over adat law in Indonesia

Recent analyses of the ‘revitalisation of tradition’ have rekindled earlier discussions of the ‘creation of customary law’ in colonial states. For Indonesia, critics have deconstructed a ‘myth of adat’, arguing that adat law was an invention of the adat law scholar Van Vollenhoven and his followers. The assessment of that period also shapes interpretations of developments in Indonesia after 1998. The purpose of this paper is to demonstrate that in some respects the critique of colonial scholarship was misconceived, and that these misconceptions hamper a proper understanding of the current revitalisation of adat in Indonesia. Many interpretations of colonial legal science and practice have become anachronistic and stereotypical. We argue that most interpretations were and are largely based on a legalistic conception of ‘law’ and ‘customary law’, that authors selectively generalise interpretations from specific contexts, and that they do not take into account what such interpretations say over legal realities beyond these contexts. Lastly we think that the target of the critique is somewhat misconceived as it is directed at those scholars who were aware of the danger of legal ethnocentrism and criticised it, while not looking at those colonial scholars and courts, who grossly misinterpreted local normative systems in terms of Dutch legal categories. We argue that some assumptions and propositions of these earlier and contemporary critical deconstructions are in need of re-evaluation. Given its presence in current analyses, reconsidering Van Vollenhoven and his followers is more than a return to a history long gone by. We substantiate our propositions with a discussion of the history of the village commons, ulayat, in West Sumatra, which has always been a central illustration in all discussions of adat law.

Globalisation and legal pluralism

For a long time the concept of legal pluralism was strictly rejected by legal theorists who insisted that the law of the nation state was the only relevant kind of law in modern society. But with the recognition that international law does not merge seamlessly with national laws and that a body of transnational law is emerging that has little to do with the law of nation states, the term has become acceptable. Legal pluralism is not a new phenomenon and includes far more than just national, international and transnational law. Research in legal anthropology has long since dealt with constellations of legal pluralism involving also customary legal orders, various types of religious law, and newly created local law. Legal pluralism resulted to a great extent from colonial expansions, missionary movements and migration. More recently, research has shown that legal pluralism is also common in industrial societies, where local communities and industrial and commercial offshoots create their own law. The transnational law that is emerging under the processes of globalisation of the second half of the 20th century therefore does not create legal pluralism, but adds to the already existing constellations of legal pluralism. Globalisation is a complex set of processes of increasing global connectedness differing in extent, intensity, velocity, and impact. Globalisation of law achieved quite high degrees of extension and intensity in earlier periods, especially during the period of colonisation since the late eighteenth century. The colonial empires introduced their laws in regions that stretched over all continents. New in the present process of globalisation is its velocity, made possible by modern transport and communication technology. New also is that far more mediating participants are involved than before. There is, however, no one universal development towards ever more connectedness. The process is full of contradictory developments, and as Held et al. warned, it is not possible to conclude from globalising developments in one domain that the same developments take place in other domains of social

Multiple Embeddedness and Systemic Implications: Struggles over Natural Resources in Minangkabau since the Reformasi

This article deals with struggles over natural resources in West Sumatra, the homeland of the Minangkabau after the end of the Suharto regime in 1998. In these processes, actors often follow ambiguous strategies in pursuing their interests. We argue that these ambiguities to a large extent derive from a combination of factors: One is the multiple embeddedness of property rights at different layers of social organisations, in particular in social and general legal relationships. The second is the systemic implication of property rights in other domains of social organisation, for instance, authority and power relations. The third is the specific complexity and concomitant legal insecurity within plural legal orders. Actors who draw on rules from different legal orders — for designing regulations, for validating transactions, and for making decisions in disputes — have to deal with the problem that property relations are embedded differently in different legal orders and have different logics and systemic implications. This often leads actors to a strange combination of highly legalistic reasoning and a very pragmatic search for solutions.

Trust and the temporalities of law

With a strong focus on social practices under plural legal conditions, the papers in this volume discuss how people operate within the various temporalities of law. The papers show that the competence to navigate the complex web of temporalities and legal orders is highly unequally distributed. Most papers in this volume testify to the stratifying implications of time when asymmetrically instrumentalised within the context of these social practices. The introduction discusses various classifications of time and argues that are important for analysing laws temporalities in the sense of the temporal validity of law, temporal aspects of legislation, decision making, and of evidence and causation. They serve to clarify that the nature of the problems differs depending on whether they arise from social or specific legal temporalities. The paper suggests studying not only temporalities of law but paying special attention to the temporalities within law. This is followed by a discussion of how law connect past,...With a strong focus on social practices under plural legal conditions, the papers in this volume discuss how people operate within the various temporalities of law. The papers show that the competence to navigate the complex web of temporalities and legal orders is highly unequally distributed. Most papers in this volume testify to the stratifying implications of time when asymmetrically instrumentalised within the context of these social practices. The introduction discusses various classifications of time and argues that are important for analysing laws temporalities in the sense of the temporal validity of law, temporal aspects of legislation, decision making, and of evidence and causation. They serve to clarify that the nature of the problems differs depending on whether they arise from social or specific legal temporalities. The paper suggests studying not only temporalities of law but paying special attention to the temporalities within law. This is followed by a discussion of how law connect past, present and the future, with special attention to memories of the past. While the third section is devoted to problems that arise when law ‘borrows’ the temporalities of other disciplines, the fourth section deals with the contradictions and frictions arising from acceleration and hyperregulation. In the last section of this paper, speculations are made on how the issues analysed in this volume might affect uncertainty, risk and trust in law.

Temporalities in property relations under a plural legal order: Minangkabau revisited

A temporal perspective is critical for understanding how communities handle changes and continuities in property relations under conditions of legal pluralism. It provides crucial clues on property relations upon the death of property holders and on how concretized property relationships are maintained in social relationships between concrete property holders and objects. This paper inquires into entanglements of distinct property regimes valid among the Minangkabau of West Sumatra, Indonesia, where three legal orders coexist: adat law, Islamic law and state law. Substantial differences in how temporalities are inscribed into the categorical property relations under each of these legal orders have rendered the property and inheritance regimes distinct and the temporalities embodied in each of the component laws discordant. How the temporal logics are configured in each legal order has important consequences for the choices people make when deciding about inheritance and land registration or when handling land disputes – all issues of vital personal, social and economic importance. The temporal focus reveals the reasons for the strong resistance to property categories under state law and Islamic inheritance law. Changes and continuities in property relations in any society are to an important extent informed by the temporalities inscribed in property categories, and some of the most renitent problems of plural legal orders result from the discordant temporalities embodied in each of the component laws. Translating or introducing property concepts in a plural legal order without considering the implications for the legal framework as a whole, and without paying attention to the time dimensions involved, leads to misunderstandings, and uncertainty, instead of trust.A temporal perspective is critical for understanding how communities handle changes and continuities in property relations under conditions of legal pluralism. It provides crucial clues on property relations upon the death of property holders and on how concretized property relationships are maintained in social relationships between concrete property holders and objects. This paper inquires into entanglements of distinct property regimes valid among the Minangkabau of West Sumatra, Indonesia, where three legal orders coexist: adat law, Islamic law and state law. Substantial differences in how temporalities are inscribed into the categorical property relations under each of these legal orders have rendered the property and inheritance regimes distinct and the temporalities embodied in each of the component laws discordant. How the temporal logics are configured in each legal order has important consequences for the choices people make when deciding about inheritance and land registration or when handling ...

Identity in dispute: law, religion, and identity in Minangkabau

The article explores the comparatively peaceful reconstitution of the relationships between law, religion and identification processes among the Minangkabau in West Sumatra, Indonesia, since the fall of the Suharto regime in 1998. The local reorganization of village government and land claims included the revitalization of adat institutions which in turn provoked a reconsideration of the role of Islam, as indeed of the meaning of ‘being Minangkabau’, indicating tensions within the relationships between matrilineal Minangkabau adat, Islam, and the state. The paper seeks to explain this reconsideration and contestation of Minangkabau identity, and how the various actors mobilize identification with a particular legal order within the plural legal constellation enhanced by the recent decentralization process in Indonesia. Disputes seem to be an important avenue for understanding identification processes, and conversely, disputing cannot be understood without a comprehension of identity formation.The article explores the comparatively peaceful reconstitution of the relationships between law, religion and identification processes among the Minangkabau in West Sumatra, Indonesia, since the fall of the Suharto regime in 1998. The local reorganization of village government and land claims included the revitalization of adat institutions which in turn provoked a reconsideration of the role of Islam, as indeed of the meaning of ‘being Minangkabau’, indicating tensions within the relationships between matrilineal Minangkabau adat, Islam, and the state. The paper seeks to explain this reconsideration and contestation of Minangkabau identity, and how the various actors mobilize identification with a particular legal order within the plural legal constellation enhanced by the recent decentralization process in Indonesia. Disputes seem to be an important avenue for understanding identification processes, and conversely, disputing cannot be understood without a comprehension of identity formation.

Ambivalent identities : decentralisation and Minangkabau political communities

This chapter explores two separate but closely related consequences of the decentralization policies characteristic for West Sumatra that have important implications for the drawing of social boundaries. The first concerns the reorganization of village government. The second consequence concerns the reconsideration of Minangkabau identity in the larger Indonesian polity. The chapter focuses on the negotiations of the boundaries and political organization of villages. It suggests that control over natural resources is crucial for understanding the tensions and contradictions between adat and adat structures and the new village administration. Then, the chapter turns to the issue of Minangkabau identity and the tensions between adat , Islam and the state involved, and discusses the various arenas in which debates about these issues are carried out and how the various arenas of negotiation are interconnected. It ends by drawing some conclusions about the extent to which Minangkabau villages are embedded in larger political structures. Keywords: adat structures; decentralization policies; Indonesian polity; Islamic organizations; Minangkabau identity; natural resources; social boundaries; village government; West Sumatra

Islamic Law in a Plural Context:The Struggle over Inheritance Law in Colonial West Sumatra

Abstract The paper deals with the historical dynamics of the struggle over inheritance law in West Sumatra under the colonial rule of the Dutch Indies. The Minangkabau in West Sumatra are an interesting example of legal pluralism in Muslim societies. Their adat (indigenous law and social organisation) of matrilineal heritage regulated kinship, group affiliation, inheritance of property, and succession to office. Since the sixteenth century they have been devout Muslims. Their history is characterised by dynamic transformations of the relationship between adat and Islam, and—since their incorporation into the colony of the Dutch East Indies in the early nineteenth century—with the state. The paper shows how these conflicts and negotiations produced different results in different arenas. The agreements reached in the political arena were usually different from the use of law in the decision-making processes of village and state courts, as were the actual practices of villagers in everyday property and inheritance affairs.