Approaches in the study of Adat and Adat Law

Abstract

The definition of Customary Law or Adat Law (hukum adat in Malay-Indonesian, adat in Kayan, edat in Modang, adet in Lahanan) raise also that of the more general notion of Custom (adat-istiadat M.I.) and Tradition (adat resam ). Paradoxically, this question has not been adressed satisfactorily in the Central Bornean context, which presents however the richest cultural variations on the island.

The point of view of the Dutch school on Adat Law can be summarised as follow: Custom is a section of Law which takes its source in the popular tradition and customs of the "primitives". However, everything which is found in the custom does not belong to the realm of Law. Therefore customary law can be considered as a set of rules characterized by sanction; the former could be "non-written law". Then adat rules are not fixed by laws. Actually Law as such is steming from the custom or adat. Richards presented this view in comparing the European notions of law, especially the origins of the English judicial system, with the position of adat in Sarawak (1961: 16 (6), (7), 17 (10) ). termed Von Vollenhoven (1918, 1931 (1981) ) and Ter Haar (1948), the specialists of Indonesian Adat Law, posit a distinction between custom which has a larger application sphere in the society the part of adat concerned with sanctions (or recommendations) in society and customary law, case of transgressions of custom. The distinction is arbitrary and rests on an analytical bias. It does not take into account the real position of law and custom in the societies considered. In fact, the relation of adat law to the "collective representations" (religious ideas, socio-cosmic concepts) remains unspecified. It is rather a serie of headings shaped on the categories of Western Law : rights on land, debts, rights of persons, marriage, inheritance, etc.