M. B. Hooker

Adat and Islam in Malaya

The aim of this essay is twofold : First, to describe the relationship between the system of law (adat) and a religious system which is also a legal system (Islam) as these co-exist in contemporary Malaya. The relationship is important because although both systems apply to the same persons ? the Malay peasants ? their respective rules in such important matters as marriage and inheritance are dissimilar and indeed conflict in certain important respects. The second aim is to attempt a better understanding between lawyers and anthropologists both of whom have studied adat, Islam, and the relationships between them.1 It is widely recognised that the methods and standards of these disciplines are by no means mutually compre hensible, but by concentrating attention upon a subject of common interest the present position may very well be improved. An obvious caveat has to be entered here because the writer is by training a lawyer; the approach adopted in this paper will, therefore, be an approach developed upon the canons of jurisprudence but taking account of ethnographic fact. A yet further qualification has to be added: this is that the substance and scope of both Islam and adat is subject to legislative and judicial determination as well as to administrative regu lation. It is hoped, however, that by setting out the sorts of arguments deemed necessary in jurisprudence a better appreciation, benefiting both studies of Malay adat and Islam, may result. The existence of a dual legal culture and a variant disciplinary approach may be illustrated in the following example.

The East India Company and the Crown 1773–1858

The issue of Charters containing legal provisions to the great trading companies was the primary means of establishing the common law in the various colonies from the seventeenth to the mid-nineteenth centuries. As well as containing a statement of that portion of the common law felt suitable for “export” at that time, the background of the Charters also illustrates one of the most peculiar relationships in English legal history: that which existed between the Crown and the East India Company. It is the nature of this relationship which is the subject of this essay.