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

Abstract

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.

Keywords:

• property
• time
• legal pluralism
• Minangkabau

Acknowledgements

This paper was redrafted after Franz von Benda-Beckmann passed away. I am grateful for the thoughtful suggestions and editorial comments by Melanie Wiber and Martin Ramstedt, and the external reviewers.

Notes

1. Adat refers in the most general sense to a way of life or customs. Adat or adat law also denotes customary law.

2. These categories are a core element of social time. See also Greenhouse in this volume for discords between social and individual temporalities.

3. von Benda-Beckmann (1979, 1982); von Benda-Beckmann and von Benda-Beckmann (1985, 1994).

4. This paper deals with inherited property and self-acquired property only. The third category, village land, with its own temporal dimension, is mainly important for the village government and will not be discussed here (see von Benda-Beckmann and von Benda-Beckmann 2013).

5. There is extensive literature on the many different aspects of social constructions of time in social science and in law (see Gurvitch 1964; Engel 1987; Greenhouse 1989, 1996; Gell 2001; French 2001, Khan 2009).

6. See, for an elaboration of our analytical approach to property, von Benda-Beckmann (1979, 1995, 2000, 2001), von Benda-Beckmann et al. (1997), von Benda-Beckmann and von Benda-Beckmann (1994, 1999) and von Benda-Beckmann, von Benda-Beckmann, and Wiber (2006).

7. Space and time form constituent elements of social life and organization that help to individuate people, interactions and relationships (Harvey 1996, 264; Giddens 1984, 1985; Lash and Urry 1994, 223). While we acknowledge that in the most general, epistemological sense, time and space are indivisible, we also claim that social constructions of time and space (although occurring in time and space) can be quite diverse and conceived independent of each other. The focus in this paper is on time.

8. See Goody (1962) and Fortes (1966, 1).

9. For a discussion of inheritance, see Hoebel (1954), Goody (1962, 1966, 1976), Gray and Gulliver (1964) and von Benda-Beckmann (1979).

10. Even in European legal systems where individual autonomy is high and where the right of ownership was long praised as ‘absolute’, donations carried out and having taken effect during the lifetime of the property holder, and thus at first glance seemingly located in the synchronic dimension, can be invalidated retroactively after the death of the donator and thus be judged diachronically.

11. The so-called donations propter mortem (see Goody 1962, 1976; Goody, Thirsk, and Thompson 1976). See, for an elaborate discussion, von Benda-Beckmann (1979, 1995).

12. See already Gurvitch (1964, 31–33) and French (2001, 714) would have called this ‘enduring time’. See the classic collection of articles on African societies by Derrett (1965). See Lloyd (1959, 1962) on the Yoruba.

13. This was allowed, for example, to cover expenses associated with the installation of a lineage head, the marriage of a woman, the restoration of the lineage house and burials. Major decisions over the distribution and allocation of property were taken through a process of deliberation involving all adult members of a lineage, in which the elder women played an important and often dominant role.

14. AB 41, 392. See also Prins (1954, 52) and von Benda-Beckmann (1979, 422, note 10).

15. See Sarolea (1928, 1920) and von Benda-Beckmann (1979, 210, 318 ff).

16. See Anas (1968), Naim (1968), Prins (1953) and von Benda-Beckmann (1979, 326).

17. Similar questions arise for property donated by hibah. Since hibah is a legal category in adat, Islamic law and state law, the first question is what kind of hibah is entailed in the donation? An adat form of hibah with its very specific hibah transfers of pusako under very limited conditions? Or hibah in the sense of Islamic law or the Compilation of Islamic Law? Does property given through hibah have the status as private property under state law, in which case it is excluded from the process of pusakoization under adat, or is it self-acquired property according to adat, in which case it would be subject to the devolution rules of adat? The status of one and the same property object then embodies different legal logics, and this presents intractable problems for property holders and courts alike.

18. See Naim (1968, 243) and von Benda-Beckmann (1979, 325–326).

19. See von Benda-Beckmann (1979, 358).

20. The Provincial Land Administration Board proposed a totally new classification of Minangkabau rights to land in its report on the pilot project to the National Land Administration Board (Report of the Provincial to National Land Administration Board of 4 March 2002). For a more extensive discussion and the conceptual confusion of this report, see von Benda-Beckmann and von Benda-Beckmann (2013).

21. A longer version of this case appeared in Chapter 13 of von Benda-Beckmann and von Benda-Beckmann (2013).

22. A colonial legal concept denoting ownership for which taxes are being paid, registered under colonial land law.

23. Number 16/1910, 5.8.1910.

24. PN Padang 23/1997.

25. PT Padang152/1997.

26. Supreme Court decision (MA RI) 3569/1998.

27. The defendants did not give up. They demanded a review of the Supreme Court's judgment, criticizing its main legal arguments. We are not aware of a further decision taken.

28. Case 35/PUU-X/2012. See Rahman (2013): http://www.sajogyo-institute.or.id/article/status-masyarakat-hukum-adat-sebagai-subjek-pemangku-hak, accessed July 29, 2013.

Additional information

Funding

This work was funded by the Max Planck Institute for Social Anthropology, Halle, Germany.