The plural legacies of legal pluralism: local practices and contestations of customary law in late colonial Indonesia

Abstract

This article explores colonial interpretations of indigenous customary law traditions in nineteenth and early twentieth century Central Java and West Sumatra during Dutch colonial rule. It argues that colonial knowledge production on and attempts at manipulating customary law interacted with indigenous responses to these attempts, generating a plurality of contentious and contested interpretations of customary legal order. Beneath the surface of the tightly knit colonial schemes of supposedly codified ‘customary law’, these interactions generated a reality of law-making that significantly deviated from initial intentions and concepts of judicial involvement as outlined on paper, thereby engendering novel forms of legal pluralism.

Keywords:

• Colonialism
• customary law
• Indonesia

Introduction

Across the globe, the traces of colonialism have influenced the perception of rights and justice provided by the state, rendering these notions elusive to many. In Indonesia, in complex matters entangling land rights, security of income and property and access to justice in the context of enduring ambiguity surrounding family, property, and personhood, the multiplicity of interpretations on justice, law and legal administration have relentlessly perturbed citizens and state administrations with uncertainty (Chanock 1985; Bedner 2016; Lund 2021). Local legal orders have historically mediated and exacerbated the effects of aggressive colonial and national reorganizations of justice administration during the nineteenth and twentieth centuries, but also provided alternative resources for judicial security. It is no secret that in many postcolonial societies engagement between ‘customary’ or ‘folk law’, religious law and colonial state law delivered new variations in legal pluralism, in which fragments from customary legal systems were assimilated into state law through state recognition (Hooker 1975; Snyder 1981; Benda-Beckmann 2007; Benda Beckmann 2019).

Here, customary law is not conceived as some sort of precolonial ‘neutral state’ of traditional ‘indigenous’ or ‘native law’ that became simply interrupted by colonial intervention, but recognized as a constant construct (re)emerging from the conjunction, conflict, and interaction under colonialism (Snyder 1981). Indeed, many Indonesian institutes of customary law, or adat, including courtrooms, chiefly positions, and guidelines for social organization, have been recognized as invented under Dutch colonial rule (Fasseur 1994; Schrauwers, 2002, 25–26; Li 2007, 48–51, 2010; Benda-Beckmann and Benda-Beckmann 2011, 2013; Manse 2022). However, the origins and consequences of the so-called “legalization” or “validation” of customary law still remain somewhat unclear (Benda-Beckmann and Benda-Beckmann 2017, 73). Scholars have criticized colonial deployment of adat as an expression of enlightened strategies of ‘othering’ to systematically retain ethnic separations and differentiation in service of colonial hierarchies, order and capitalism (Burns 2004; Li 2007, 48–51). This ignores how adat fulfilled multiple social functions and was interpreted, used and transformed in various ways by different colonial scholars and officials, adat chiefs, indigenous rulers and other actors across the archipelago and in Europe (Benda-Beckmann and Benda-Beckmann 2011, 169–170).

To fully understand the development of adat societies under colonialism, and vice versa – how colonial governance evolved through engagement with adat society – we must delve deeper to uncover the inevitable entanglements of local colonial administration with the complex realities of adat, its hierarchies, rules, and visceral principles of social organization. Disclosing these connections, this article will reveal how colonial policies and customary law, as they targeted similar societal issues – redistribution of the fruits of land and labour, the implications of marriage and questions of keeping social order and hierarchy – led to the creation of new sociolegal hierarchies and practices. This brought colonial policy into a direct dialogue with adat, and partially explains why colonial administrators in the Indonesian archipelago in the nineteenth and twentieth century recognized and articulated the necessity of sustaining indigenous social patterns and legal forums to promote colonial order. Yet, despite colonial administrators’ far-reaching attempts to manipulate society through adat for purposes of exploitation and domination, they never fully mastered it, given its inherently elusive nature.

Consequently, this article argues, plural legal constellations and colonial policies emerged not from each other’s conflicts and oppositions but form each other’s entanglements and consequent reinterpretations, influenced by specific local economic, institutional, and socio-cultural conditions. This ‘hybridization’ of colonial governance and indigenous customary law should not be seen simply as offering alternatives to ‘original’ customary law or the state’s interpretations of it – which was always subject to change and reinterpretation – but as a valuable new source for legal interpretations in itself. Hybrid forms of customary law, as shown by Benda-Beckmann and Benda-Beckmann (2017, 79–80), begun to coexist with already present forms of customary law from which they were derived. By constantly responding to each other, they propelled each other’s evolution. Similar dynamics have been observed in case of (former) colonial states in Africa (Chanock 1985; Moore 1986) and India (Cohn 1996, 57–75; Li 2010, 388–392), but not yet in case of Indonesia, despite Indonesia’s prominence in the study of legal pluralism.

This article further explores exactly how such processes took shape within the confines of the Dutch colonial state in Indonesia in the nineteenth and twentieth century, and how each new set of sociolegal rules and concepts that historically emerged gradually acquired its own distinct character, carrying its own unique legal substance and logic. Consequently, these sets of rules and concepts were perceived as belonging to multiple legal orders, originating from mixed indigenous and colonial influences. This allowed actors to selectively adopt elements from each of these distinct legal logics, creating a diverse and adaptable legal landscape.

Taking its cue from Keebet and Franz von Benda-Beckmann’s seminal work on the intricate interplay between formal colonial and indigenous legal systems in Indonesia, this article expands the analysis through a historical examination of colonial administrators’ efforts to comprehend and exploit local sociolegal frameworks and inability to understand adat as a dynamic force. This sparked intricate dialogues and exchanges orchestrated not solely by the colonial state. Scrutinizing evidence preserved in archives in the Netherlands and Indonesia, I trace the origins of these initiatives, focusing on the interlocking principles of customary law that governed land rights, labour obligations and taxation in Central Java and West Sumatra, where these elements were pivotal in the organization of agrarian society, making them focal points for colonial policies to understand, regulate, and transform them.

My analysis centres specifically on the intricate process through which local colonial knowledge production stimulated novel sociolegal hierarchies and practices to take shape, usually facilitated by collaborating local intermediaries and headmen. Consequently, beneath the surface of the tightly knit legal orders of supposedly codified ‘customary law’ emerged a plurality of contentious interpretations of plural customary legal orders. These interpretations, that became deeply embedded in local social dynamics and often resolved on the spot through local negotiation, significantly deviated from the originally intentions and concepts of colonial judicial involvement, as Keebet von Benda Beckmann has demonstrated in the case of West Sumatra (1985, 1986).

Below, I will briefly discuss the roots of legal pluralism and empire building in Indonesia, followed by an analyses of how Dutch colonial officials and scholars explored and interpreted Indonesia’s customary law systems. Then, I will unveil how colonial officials in Central Java and West Sumatra, through report writing and law making, constructed their own, new realities of ‘traditional’ society and customary law. As the final paragraph will demonstrate, these started to interact with existing legal orders, layering one form of legal pluralism upon another.

Legal pluralism and empire building in Indonesia

In many colonial empires, legal pluralism was interwoven into the very foundations of rule (Stern 2013). Since the onset of European expansion in the Americas, Asia and Africa, colonial powers worldwide became involved in increasingly complex legal issues as a result of their attempts to solidify and reinforce their claims to sovereignty, which inevitably generated new legal conflicts, contests and identities (Anghie 2007; Fitzmaurice 2014). In their efforts to address the challenges and tensions rising from these claims, imperial structures tended to adapt to local legal contexts, despite its inherent hierarchical character, by blending in with various legal traditions and decentralized forms of power, which created fluid law systems that were transformable on the spot (Benton 1999, 2002, 2010; Benton et al., 2013; Ross 2013, 5–7).

Since its inception in 1815, the Dutch modern colonial state in the Indonesian archipelago in the nineteenth and twentieth century featured legal divisions, notably based on race, which ultimately translated into a clear racial legal order, in which ethnicity informed legal classification. Following the implementation of a new ‘Government Regulation’ in 1854, codified law and legal procedure were separated and grafted in legal-racial separation embedded in legislation, judicial practice and executive policy (Fasseur 1994). Europeans and ‘those classified as, or equalized with Europeans’, and ‘inlanders’ or ‘indigenous peoples’ (and those classified as such) answered to separate, ambivalent legal bureaucracies, court hierarchies, procedural codes and tax systems. For Europeans, these were based on (Roman) European law (a Dutch colonial legal code was introduced in 1848),¹ while the justice administration of indigenous people was decreed to use the principle guidelines of their own local customary law or adat (Lev 1985). Asians from outside the archipelago, such as Chinese, Japanese and Arabian merchants, occupied a more ambivalent position; considered to be economically above the indigenous people but inferior to Europeans, they were, from 1818 onward, inelegantly termed ‘Foreign Orientals’ (‘Vreemde Oosterlingen’), as a separate legal class (Lohanda 2002; Liem 2009). They answered to indigenous criminal law, but European commercial law.

Colonial regulations further differentiated between ‘indigenous’ (or autochthonous) and ‘non-indigenous inlanders’ (‘inheemse’ and ‘niet-inheemse inlanders’) depending on their origins. For instance, a Javanese person living in Aceh (Sumatra) was considered a ‘non-indigenous inlander’, while an Acehnese in Aceh was considered to be an ‘indigenous inlander.’ This is important, because ‘indigenous inlanders’ were supposed to adhere to local adat, including various social obligations relating to labour, marriage and inheritance, while it made little sense for ‘non-indigenous inlanders’ to observe a system of customary law that was not theirs. Instead, ‘non-indigenous inlanders’ were supposed to adhere to the laws designated for ‘Foreign Orientals.’

Such legal categorizations were flexible; people could apply for ‘higher’ legal status. Under the influence of growing Japanese power and lobbying, for instance, Japanese residents in the Dutch East Indies were collectively equalized with Europeans in 1899. Of course, in reality none of the ethnic socio-legal classes formed homogenous groups. For instance, of the socio-legal class of ‘Europeans’, about 75 percent were Indo-Europeans, who had an ambiguous position drifting between indigenous and European society. Furthermore, there were enormous differences among, as much as within legal classes, which both related to and informed financial capacity, life standards, education and social mobility (Luttikhuis 2013). Ultimately, the liberal-enlightened principles of justice administration were diffused in a multitude of overlapping patchworks of ‘fluid jurisdictions’ and ‘layered sovereignties’ (Benton 2003, 2010; Yahaya 2020), characterized by the “unequal and authoritarian colonial reality” of colonial law courts. These courts largely relied on cooperation with indigenous elites and functionaries, and were deeply pragmatic in their conduct, establishing a “rule of lawyers” rather than ‘rule of law’ (Ravensbergen 2019).

De-, trans and prescribing Adat

A key aspect of efficient rule in many different empires was the efficient utilization, integration, and replication of pre-existing indigenous repertoires and structures of political and social organization as an orientation point for governance, justice administration and taxation. Colonial officials across the globe operated in the context of a government strategy based, above all, upon cooperation with local indigenous elites and preservation, adoption and adaptation of local patterns of social organization and customary law, rather than assimilation policies (Roque 2015; Manse 2022; Yannakakis 2023). As phrased by James Scott (Scott, 1998, 310), “Formal order was always and to a considerable degree parasitic on informal processes, which the formal scheme did not recognize, without which it could not exist, and which it alone could not create or maintain.”

In case of the vast and extensive Indonesian archipelago, such ‘informal processes’ were numerous, and extremely diverse. Adat was highly local, uncodified, changeable, negotiable and fluent. More than simply a system to organize ‘customary law’ under colonialism, adat was a complex of signifying norms coordinating relationships and behaviour, exercised in various contexts, and locally believed to have been established by ancestors according to specific origin myths and narratives of society (Davidson and Henley 2007; Benda-Beckmann and Benda-Beckmann 2011, 2017; Benda Beckmann 2019). It was narrated in rules, guidelines, stories or sayings and maxims, expressed in resulting customs, social, marriage regulations and principles for inheritance and (re)distribution of income and property, all to guarantee the well-being of the community, and observed by specific village authorities. It was among the most important tasks of local colonial administrators to map and record adat practices and institutes to make sense of local society. This gave rise to a distinctive system of colonial knowledge production and paradigms regarding the nature and interrelationships of these systems. The concept of ‘customary law’ or adat hence became a legal and discursive category in its own right. This was not unique to colonial Indonesia (e.g. Roque 2010; Yannakakis 2023).

Attempts to restructure and embody adat resulted in a fragile, abstracted model of social organization that never accurately reflected local practices; the moment officials attempted to codify and modify it, adat changed right under their noses. Leiden law professor Cornelis van Vollenhoven’s attempts to describe regional variations of 19 ‘adat circles’ in regional volumes of the Adatrechtbundels (Adat Law Tomes, 1874–1933) provided welcome support – even if, as argued by Benda-Beckmann and Benda-Beckmann (2011), they were intended to analyse adat to enable greater understanding of the social world of indigenous people rather than codify it for governing purposes.

Van Vollenhoven’s primary concern was to prevent the imposition of European law on indigenous peoples and the unification of legal systems, overriding indigenous adat. This was advocated by some colonial officials around the turn of the twentieth century as a civilizing effort, believing Western law to be superior and providing more legal certainty (Fasseur 2007). Van Vollenhoven and his Leiden students emphasized the importance of understanding adat within its own social context. These ideas faced criticism from the Utrecht law school, established in 1925 and sponsored by wealthy industrialists, which pushed for liberal ideas of legal unification and opposed the ‘ethical aspirations’ of Leiden, where the Utrecht school was derisively called the “petroleum faculty” (Fasseur 2007, 51–57, 1994, 412–26). Van Vollenhoven and his students effectively warned against the profound impact of domesticating adat through rigid Western legal frameworks, and the idea of legal unification was abandoned (Fasseur 2007, 59–60).

The strategy to govern through adat after 1900 was hence a very conscious effort to preserve, maintain, and manage indigenous populations more integrally than in the nineteenth century. This became not merely a method to retain legal differences but also a strategy for efficient colonial governance. Hereto, Van Vollenhoven’s argument provided a foundational framework that helped maintaining social order, which, due to its inherent multiplicity and adaptability, offered new (much debated) preconditions for the analysis and practical use of local adat across the Indonesian archipelago, which, as I will further discuss below, due to its inherent multiplicity and adaptability, gave extra impetus to its constant change and reinterpretation (Van Vollenhoven 1919, 29; Holleman 1981; Burns 2004; Fasseur 2007; Von Benda-Beckmann 2011, 174–175, 187). The government’s conflicting aims – preserving and incorporating “native traditions” into European administrative and legal categories while seeking to reform and ‘civilize’ the former – necessitated a deep engagement with adat, facilitating direct interactions between colonial ambitions and adat traditions (Li 2007, 48–51).

Prescribing Tradition: land, services and taxes in nineteenth-century Central Java and West Sumatra

Colonial efforts to ‘improve’ adat society are particularly evident in nineteenth-century Central Java, where attempts were made to realign landholding patterns and labour mobility with the demands of colonial capitalism and state-building. In most Javanese peasant societies, adat regulated access to land and irrigation in exchange for performance of specific services or paying taxes. Larger, established peasants, known as sikep, held a collection of land rights, granting them exclusive access to these lands on the condition that they would cultivate these lands and provide the necessary services and taxes to as local rulers and nobilities, and from the nineteenth century onward, to the colonial government as mandatory ‘corvée labour.’ To meet these labour and fiscal requirements, sikep had to ensure to recruit the necessary labour force by allowing ‘landless’ peasants (peasants without extensive land rights) to live and work in their households and on their land. As a result, a sikep household could easily comprise more than 100 individuals. Alternatively and additionally, peasant communities held communal rights to multiple plots of land, managed either through fixed, inheritable rights to shares in these lands or under schemes of periodic redistribution. In both scenarios, access to land was contingent on performing specific labour duties (Boomgaard 1989).

Communal landholding rights and their according labour duties became foundational to the Dutch systems of forced cultivation of cash crops, implemented from the 1830s onward across Java, West Sumatra, and some other parts of the archipelago. Communal landholding was well-suited to the colonial need for collectivized mass labour. However, by the later nineteenth century, these systems were discarded outdated, ‘feudalistic’ by emerging liberal politicians, and incompatible with the changes of the modernizing world (Manse 2022). While debates persist regarding the extent to which the cultivation systems promoted ‘communal land-right’ holding (Boomgaard 1989; De Zwart and Soekhradj 2023), it is certain that their gradual abolition from the 1860s onward and their replacement with new (individual) monetary taxes necessitated patterns of individual landholding and private property rights.

Colonial officials identified an important link between access to land and taxability and service liability, which henceforth came to be seen as an important governmental tool to manage patterns of landholding and income earning, and vice-versa (Manse 2022, 2023). A series of investigations was launched to map these patterns. Such investigations were no genuine endeavours of knowledge-acquisition, but rather discursive strategies to generate and organize knowledge of adat society according to novel colonial requirements (cf. Stoler 2009, 29–31). They yielded bulky reports that foremost served to support and confirm the biased ideas and needs of the colonial government. Noteworthy in this case is the investigation of Willem Bernardus Bergsma on the ‘rights of the indigenous population to land in Java and Madura’ (Bergsma 1876). This investigation was the first to delineate clear distinctions across Java between communal and individual property holding, and to identify opportunities for converting the former into the latter (Goh 1998, 28–9). This meant peasants would no longer contribute to collective domestic economies by producing rice and cash crops, but instead maintained their own plots of land to develop their own individual incomes by selling produce on the market allowing them to pay individual monetary taxes (Bergsma 1876; Bergsma 1881).

Subsequent investigations building on Bergsma’s discursive findings were deployed to reorganize the forced labour systems, led by special investigator Fokko Fokkens who delivered three hefty volumes (1901–1903) of over 1,000 pages each pertaining particularly the various corvée services in Java and Madura. Fokkens’ view on these services was notably shaped by Bergsma’s ideas and by the government’s ambition to introduce individual monetary taxes. His official mandate was to map the different types of corvée labour and their underlying adat principles existing in Java, to formulate a comprehensive plan to replace these services with head taxes (Fokkens 1901 vol. I, part 1, iii-v; Fokkens 1908 vol. II, 51). Instead, Fokkens constructed and propagated new adat realities that facilitated the conversion of collectivized services to individual taxes.

For example, in Kedu, in Central Java, a distinction existed in the nineteenth century between individuals with full rights to larger plots of lands and rice fields, known as kuli kenceng, and those without such rights, referred to as indung pekerangan (or kuli karangkopek). The latter typically possessed only a house with a yard, a garden or a smaller plot of land. Each group performed specific types of services. Ownership more land shares automatically increased one’s supposed capacity (gondol or gundal) to shoulder the tax burden. Consequently, heavier services were assigned to kuli kenceng, while lighter services were performed by those with fewer land shares (Moertono 1968, 144–145). In practice, kuli kenceng performed the majority of labour services, while indung pekerangan were only expected to assist when necessary.

Fokkens, however, simplified the situation in his reports by categorizing kuli kenceng as having ‘full’ and indung pekerangan as having ‘half’ gondol. This implied that, theoretically, indung pekerangan were required to perform only half the amount of services (26 days) of services compared to kuli kenceng (52 days) (Fokkens 1901 vol. I, part 1, 99). By extension, kuli kenceng would pay one guilder in the head tax introduced to replace part of these services in 1882, while indung pekerangan would pay only 50 cents in Fokkens’ model (Fokkens 1901 vol. I, part 1, 105). This created two clearly separated classes of taxpayers, which was copied into the new state ordinances based on Fokkens’ recommendations.²

Furthermore, in Kedu many peasants held a collection of land rights, bearing the accordant gondol, disseminated across multiple desa (villages). Fokkens’ referred to this as ‘plural liability’ (Fokkens 1901 I, part 1, 99–100). In Fokkens’ model, these peasants were made ‘half liable’ (taxable) in each desa (village) they held land in, regardless of the size of their land holdings. This way, it became the number of plots one had rights to, rather than the total accumulated size of these land rights, that started determining one’s tax burden (Ernst 1890, 1444).

Across Java, Fokkens applied similar simplifications of various forms of fiscal liability, reorganizing communal individual rights to shares in arable land (Fokkens 1908 vol. II, 14–15). As with Kedu, these simplifications were codified into state ordinances defining individual taxability, issued from 1893 onward.³ This way, virtually all peasants in Java were made individually liable to perform corvée and pay taxes directly to the colonial government.

Together, Bergsma and Fokkens’ work generated a new adat reality on paper to supposedly overhaul existing practices to ‘improve’ and reform Javanese peasant society and repair the regressive effects of coerced cultivation. Their (mis)interpretations and (mis)understandings of Javanese adat concerning land tenure and labour were not simply the result of using ‘inappropriate’ European legal terms to describe adat law (van Vollenhoven 1919, 72, 103; Benda Beckmann 2019, 7), but deliberate attempts at integrally restructuring the indigenous legal foundations of socioeconomic organization to consciously redesign and condition colonized populations towards the premises of supposedly ‘modern’ colonial rule and its new forms of capitalist exploitation. These reinterpretations were locally enforced and acquiesced to by collaborating chiefs and members of adat elites, who assisted and collaborated, and enticed by favourable terms, bribes and salaries offered by the colonial government. Many of these chiefs received inheritable positions from the colonial government, contradicted older customs designed to prevent such practices and to counter dynasty formation, to ensure chiefs remained loyal to their village communities rather than distant lords (Soebekti 1964, 12–13; Mulherin 1970, 14–20).

The ease with which adat elites and regulations were invented by the colonizer raise questions about the issue of authenticity of adat. Again, adat was typically not codified but rather consisted of fluid social practices open to various interpretations. Thus, we could argue that there was and still is no adat that can be understood as original, definitively or authentic in the first place, so that consequently, every interpretation by outsiders for whatever purpose they are pursued, could be seen as correct or incorrect, as a misinterpretation, depending on what practices it prioritized. Adat was deliberated and mediated, and never absolute. The investigations of Bergsma and Fokkens constructed ‘new facts’ and social fabrications to rule and extract, just as previous indigenous rulers had done, and as colonial and indigenous powers did in other parts of the world (cf. Moore 1986). How villagers and adat society in Central Java responded to these changes will be discussed in the next section.

First, we shall briefly examine how Dutch colonial administrators in West Sumatra faced even greater challenges in aligning taxability with their preferred patterns of landholding. The region was incorporated into the Dutch empire following a series of conflicts between Wahhabi reformists (Padri) and adat chiefs. The Padri called for social reform to counter what they perceived as social anarchy and impure behaviour within the old adat order, and aimed to curtail the influence of the adat chiefs, which ultimately led to a civil war (Dobbin 1983, 5–10; Hadler 2008, 972–979). The Dutch, seeing the former were as a threat to their presence in Sumatra, became involved in the subsequent Padri War, siding with the adat chiefs, whom, after the war ended, they appointed as participants and overseers in the forced cultivation system of coffee introduced in West Sumatra in the 1840s. As in Java, cooperation with local chiefs was essential for the functionality of the forced labour system. Frequently, the Dutch appointed leaders who, according to adat, lacked legitimate claims to chieftainship, thereby creating a “false adat elite” (Hadler 2008, 990). This elite included newly invented functionaries tasked with overseeing and enforcing coffee production and levying taxes. For instance, in each nagari (village units), a chief penghulu was appointed as the community’s spokesperson the to manage relations with the Dutch. These new officials gained increasing rights to levy taxes, making them unpopular with the villagers. Thus, nagari and lineage formation were effectively controlled by limiting in part the mobility of adat and adat communities (Biezeveld 2007, 209). When the coffee system began to stagnate as a result of overproduction, low prices and soil exhaustion from the 1860s onward, gradual reform was initiated to implement new forms of monetary taxation in place of forced labour services (Lulofs 1904). This reform brought about similar questions concerning the (re)organization of adat, chiefdom, land tenure, labour and taxation.

In West Sumatra, navigating these questions proved extremely complex. Among the Minangkabau, the predominant ethnic group in interior West Sumatra, socio-political relations were characterized by extensive consultation and egalitarianism within social groups. Local chiefs known as penghulu observed adat by mediating conflicts and organizing council meetings where decisions required unanimous agreement from lower family or lineage heads (Benda-Beckmann 1979, 81). Action could only proceed once consensus was achieved.

This consensus-seeking process was driven in part by the separation of political authority from power over property within Minangkabau society. Rights to land, titles, and valuables were communally held by lineages, the fundamental social units within villages, and inherited through the female line. Inheritance of and access to property frequently sparked dispute and conflict, resolving which was a crucial aspect of the penghulu’s job (Ibid., 86; Benda-Beckmann and Benda-Beckmann 2013). Hence, property rights extended beyond mere legal claims or formal land rights; they encompassed social relationships and the lineages’ capacity to retain their assets, especially land. Managing produce and assets was a matter of manipulating the proper guidelines for social relations. Indeed, colonial land dispossession often coincided with the decline of political authority and legal rights (Benda Beckmann 1985).

These social constellations and unique adat have fascinated generations of scholars for its complex relation with Islamic law – Minangkabau were devout Muslims and have brought forth many eloquent Islamic scholars. From the nineteenth century onward, and especially since the early twentieth century, Minangkabau intellectuals, religious leaders, and adat elders have extensively theorized the intersection of adat, Islam, and the state, as well as the nexus of tradition and modernity, negotiating these complex relationships through periods of both accommodation and contestation (Kahn 1993; Abdullah 1966, 23; Hadler 2008; Benda-Beckmann and Benda-Beckmann 2012). This pluralism manifested in varied interpretations and implementations of Islamic law across Indonesia, underscoring the complex interplay between local customs and religious norms (Benda-Beckmann 1992).

To Dutch colonial administrators, Minangkabau social constellations posed profound challenges, particularly in matters of justice administration, social organization and managing (and taxing) property and inheritance. From their arrival, the Dutch attempted to manipulate property rights to readapt and alter adat to suit the needs of their changing policies (Biezeveld 2007, 208). According to contemporary Dutch colonial fiscal logic, households were only taxable through their eldest male member. However, in West Sumatra, men remained part of their maternal households, even after marriage, and did not possess individual property rights themselves. Instead, they ploughed and harvested communally owned lands, developed new lands for cultivation, and received shares from the fruits of the communal possessions of their (matrilineal) lineages.

While convenient for the collective, forced coffee cultivation schemes, this arrangement posed obvious challenges to individual taxation. Dutch officials puzzled for many years to devise suitable methods to extract individual income and property taxes within Minangkabau society. They believed that men, because they could not gain any immediate individual benefits or inheritance rights from communally owned lands, were hindered in developing a strong work ethic. This was presumed to shift the tax burden mostly onto women’s shoulders (Heckler, 1905 vol. I, 64–82).

Following the liberalization and reform of coerced cultivation in Java at the end of the nineteenth century, colonial officials aimed to implement similar reforms in other colonial possessions. New laws were enacted to facilitate the exploitation of uncultivated wastelands by foreign entrepreneurs, which took effect in West Sumatra in 1915 (Kahn 1993, 210). Reports and recommendations from local officials and specially appointed investigators on these reforms accumulated on the desks of the provincial governor in West Sumatra and the governor-general in the colonial capital of Batavia in Java, intensifying the pressure to take action. This was exacerbated by the declining coffee production in the West Sumatra from the 1880s onwards, which shifted from one of the most profitable to one of the costliest parts of the Dutch colonial empire.

In the early 1900s, despite the stern warnings of various local officials, civil servants in Batavia implemented an individual income tax. This tax required penghulu to collect taxes on behalf of the government from every man above the age of sixteen within their lineage, based on their assumed incomes derived from their families’ communally held property. Lineage heads were held accountable for the incomes of their lineage members, supposedly emphasizing the communal character of lineage and property rights, instead of individual rights (Biezeveld 2007, 209). However, this approach subjected the communally held lineage lands to direct taxation, which, by extension, implied these lands could be confiscated in case taxes went unpaid.⁴ Such a measure constituted a profound violation of the inviolability of lineage lands, which were the primary source of existence and income for the lineages. Furthermore, the tax made various invented adat chiefs appointed to oversee the coffee system redundant, and they were laid off, leading to ‘elite-displacement’ (Young 1994, 33).

Many lineage heads hence refused to cooperate, which ignited a tinderbox of multiple socioeconomic, -political and -religious tensions that had been building up for decades. This culminated in a full-scale social revolt in 1908, led by conservative lineage heads and leaders of an Islamic brotherhood, which was violently suppressed (Young 1994). The rebels not only sought to shield fellow villagers from the economic burden of unrightful taxes, but also embodied a conservative revival movement among adat chiefs and religious leaders, who had been eclipsed by modernist factions, to reclaim their influence. This is important to notice Dutch administrators erred in two significant ways with the tax introduction: first, their attempts to codify and control customary law distorted it, inadvertently generating new tensions and legal practices; second, they overlooked the impact of the tax and abolition of forced cultivation on their crucial allies, the adat chiefs, upon whom they still heavily relied.

While this may not surprise scholars well-versed in the legal history of the colonial empire in Indonesia, a closer examination of indigenous responses to colonial interpretations of adat society reveals more intricate manifestations of legal pluralism in Indonesia than merely separate legal traditions running into conflict, or operating concurrently (Benda Beckmann 1986, 133). Instead, legal structures and procedures appear to have drawn from both colonial codes and indigenous practices, and the interaction between both. The transformation of adat occurred under the influence of both colonial representations and the indigenous responses to these. This stimulated a continuous cycle that further diversified the evolution of adat.

Negotiating tradition

We return to Kedu in the late nineteenth century, where officials noticed that the principles of land tenure and taxability, as defined by Bergsma and Fokkens, began to act reciprocally with actual patterns of landholding. Peasants would either assert or relinquish rights to land depending on the duties and obligations these rights brought according to Fokkens’ system. Government investigators, notably the experienced inspectors J.H.F. Sollewijn Gelpke and J.W. van der Valk, meticulously reevaluated Fokkens’ conclusions, discerning that the recurrent disparities in gondol were essentially “artificial constructs” riddled with “theoretical incongruencies.”⁵ They discerned that Fokkens had superimposed a novel ‘layer’ of legal codification onto colonial society, which began to exert influence over earlier versions of adat, and noticed that individuals began to navigate between various interpretations of adat, selecting those most advantageous to their circumstances.⁶ People who were aligned with the colonial government – village elites, wealthier land-owning peasants, tax-collecting intermediaries and other cooperating chiefs – insisted on the state ordinances established since 1893, which institutionalized plural liability according to Fokkens’ ‘gondal scheme’, extending their fiscal rights and incomes. In contrast, smallholding peasants with multiple land shares in different villages, who experienced a significant increase in their tax burden under Fokkens’ system, insisted on older versions of gondal predating Fokkens’ investigation.⁷

Since adat was uncodified and open to interpretation, the colonial reproduction of social customs and facts provided both rulers and ruled with additional grounds to impose their rights and obligations regarding the redistribution of resources and the associated tax burden. In precolonial Java, chiefs and rulers had had limited coercive capacity. Precolonial rulers assessed entire village collectively, leaving it to local district and village chiefs, who relied on various intermediaries and strongmen, to negotiate and enforce compliance with tax and tribute payment, conscription and services performance (Wisseman Christie 1985). This collective village assessment was directly copied into the state ordinance of the 1893 head tax for Java, incorporating preexisting negotiation practices into Dutch colonial taxation, along with the broader amalgamation of adat into colonial governance.⁸ Chiefs were kept as being fully responsible for assessing and collecting the tax, and they participated in the revenue of the head tax that replaced corvée services by taking eight percent as a “collector’s wage.”⁹

As a result, services, land taxes, and the adat principles that governed them remained often negotiable (Moertono 1985). Villagers could invoke different interpretations of adat to avoid or reduce payments or seek refuge, pressuring district officials to negotiate with provincial rulers (bupati) and the colonial government. This was, for example, a recurrent issue in the weekly reports of wedana (village elders or officials) to the Pakualam court, one of Central Java’s autonomous principalities, which reveal frequent conflicts over tax revenue and the fragility of office-holding depending on different interpretations of adat. In 1898, for instance, a demang (Javanese district official, usually appointed by rulers to levy taxes) claimed collector’s wage, based on the 1893 tax ordinance. However, the principalities of Central Java, as well as other ‘self-governing’ areas within the colonial state, were exempted from central tax ordinances, and presumed to maintain their own fiscal regulations. Accused of stealing tax money by two wedana, who cited a different interpretations of the rights and duties of the demang and rejected collection wage, he was fired by the Pakualam prince but then pardoned and reappointed under pressure of the colonial government.¹⁰

A few years later, a bekel (village councilmen turned into district tax collectors for the demang in colonial times), was detected levying more services from specific villagers than their gondol prescribed. After the bekel fled the scene, his family frantically insisted on their interpretation of adat to legitimize the bekel’s behaviour and to retain the office of bekel and its privileges (such as percentages and salary fields) within the family, arguing their unique expertise in their district’s taxation.¹¹ Bekel often were prominent landholding villagers and started acting as patrimonial chiefs; they often bore personal responsibility for district tax payments, negotiating these with local indigenous rulers and (subsequently) colonial officials to maximize their personal gain (Suhartono 1989, 330). Use of knowledge, on tax revenue, population census, and on adat, became currency in these negotiations. This allowed bekel to claim rights that previously did not exist, with villagers and lower village elites contesting such claims referring to previous interpretations of adat and rejecting the government’s interpretation. This then became a source of further negotiation.¹² As such, the hybridization of adat itself became a new source for legal interpretation.

In 1901, following the advice of Sollewijn Gelpke and Van der Valk, a new ordinance abolished gondal differences, further complicating matters by introducing yet another interpretation of adat.¹³ As a result, services and taxes became more negotiable and exchangeable, with negotiations occurring on the spot, often beyond the scope and reach of Dutch administrators.¹⁴ Thus, the meticulous efforts of colonial officials in conducting investigations, promulgating ordinances and imposing new taxes to embed their modernizing creeds into local practices never the homogeneous invented traditions and customs they aspired to establish. Much like the decrees and demands of precolonial Javanese rulers, colonial initiatives were not unconditionally accepted. Instead, they engendered new forms of dispute and debate, reflecting the enduring nature of adat as a dynamic and contested arena of social practice.

The investigations and interpretations of Bergsma, Fokkens and Sollewijn Gelpke transcended the role of mere state apparatuses intended to fabricate new truths suitable for the “poor adat-lexicon” of “bureau-men” in Batavia (Van Vollenhoven 1919, 42; cf. Stoler 2009, 29–31). These efforts simultaneously furnished colonized populations and local chiefs with new opportunities to selectively adopt or contest the representations of the colonial state. The ‘truths’ and policies that emerged established precedents for novel behaviours and interactions among state officials, peasants, and village elites. Local responses, attempts to navigate colonial reforms and subsequent interaction subsequently shaped further new ‘truths’ and subsequent policies. Adat society was a moving target that engaged with the investigations and descriptions of colonial officials of it, permitting multiple interpretations of adat to coexist and to be strategically employed for multiple different ends.

Turning back to West Sumatra, we may find parallel patterns where the politics of colonial law-making and administration were similarly predicated on adat principles of negotiation and consensus, with adat society equally responding to colonial policy. In Minangbakau society, negotiation and consensus seeking were essential to legitimate any decision or measure. Lack of consensus, for instance under colonial rule, which was inherently authoritarian and undemocratic, significantly impeded the colonial administrators’ capacity to effectuate coherent and consistent changes within the adat society.

In the early nineteenth century, after the Padri war, the Dutch government explicitly committed to abstain from interfering in indigenous village politics or to introduce any form of direct taxation (Graves 1981, 22–25). Under the coffee cultivation system, local elites were entrusted with enacting policy changes through consensus and gradual adjustments. The Dutch sole concern was a stable coffee supply, and they paid little regard to the specific adat regulations governing property holding and land tenure. The location and circumstances of coffee production were of secondary importance to them; what mattered was the quantity of coffee produced. The local adat elites were retained to negotiate and reach consensus among people about who produced what and under which terms.

The imposition of monetary taxation in 1908 marked a significant departure from this relatively autonomous role of adat rulers towards direct colonial intervention in property affairs previously coordinated by adat. The tax undermined the foundations of customary rights concerning property and inheritance and political authority, which in Minangkabau society originally were separated, and heavily affected the very essence of the negotiability and malleability of adat in these matters, and hence, the nature and function of adat itself. Local mediation had played a pivotal role in interpreting and applying adat, contributing to its ongoing evolution (Benda-Beckmann 1982, 46–47). Adat’s dynamic relationship with Islamic law, deeply rooted in Minangkabau history, enabled local actors to use muliple legal frameworks to justify property claims and navigate social conflicts and to get a grip on colonial lawmaking and adat-interpretations (Benda-Beckmann 2020; Benda-Beckmann and Benda-Beckmann 2012).

Penghulu did not apply adat rules to specific cases, but rather interpreted what adat rules implied in light of a case. No higher authority, whether the state, reformist padri or other actors could reject, ignore or enforce adat, as adat was never meant to be enforced, but negotiated. Thence, following the incorporation of the West Sumatran highlands into the Dutch colonial state in the early nineteenth century, colonial encroachment added another layer to extant legal pluralism, which, from a local perspective, was inevitably subject to further negotiation.

By 1908, steady entrenched and path-dependency on policies of economic exploitation and monetary taxation, the Dutch eschewed consultation; the governor at the time instructed regional administrators to use an “explanative and instructive rather than a consultative tone,” to discourage indigenous chiefs to attempt to seek consensus.¹⁵ Consequently, the 1908 tax was not accepted among the adat councils upon its introduction. One chief in the district of Tanah Datar, for instance, declared that all decisions made during a meeting explaining the 1908 income tax were invalid to him, as he had not been present or consulted.¹⁶ Another chief later confessed that he participated in the anti-tax rebellion of 1908 because he simply “did not understand why the Minangkabau had to pay income and slaughter taxes to the Dutch.”¹⁷ The tax had been introduced on false premises, which was recognized as another leap in a process of decades of colonial encroachment, economic exploitation, and purposeful disregard of adat life, to which, in tandem with other social tensions, the rebellion was also a collective popular response.

The 1908 rebellion fitted into a longstanding tradition of expedited Minangkabau resilience against foreign influence. The tax exacerbated frustrations over colonial presence, exploitation and social violations, igniting a tinderbox of internal social tensions and external pressure. The tax and subsequent rebellion severely damaged the government’s reputation and credibility and the authority of local chiefs, paving the way for political leadership to shift from adat to Islamic and secular leaders and organizations (Young 1994). Weakened penghulu struggled to maintain order during time-consuming tax levying events and then afterwards swindled the assessments based on “lucky guesstimates” (Hamerster et al. 1928, vol. II, 46). Taxes were often paid only after being negotiated down or not at all.¹⁸ Across the archipelago, such negotiation had become an essential and increasingly important part of colonial taxation, particularly in egalitarian societies like that of the Minangkabau (Manse 2022). Yet, it was often disacknowledged in case of the implementation of new taxes in order to retain some degree of centralization and uniformity among colonial provinces across the archipelago. In 1914, the government implemented a general archipelago-wide company tax, extending it to West Sumatra the following year, which effectively doubled the tax burden from two to four percent.¹⁹ In response, infuriated Islamic leaders plotted another foiled revolt (Oki 1977, 91). Numerous taxpayers in the home district of these leaders, disgruntled over the sudden increase in tax rate and the tax-exemption of (usually wealthy) indigenous chiefs, refused to pay up or fulfil their service obligations resulting in severe punishment through forced labour and imprisonment.²⁰ The colonial authorities, dismissing the grievances of Minangkabau taxpayers, intellectuals, and leaders as an “obsession with egalitarianism” and indicative of their “subversive nature” (Hamerster et al. 1928, 47, 117; Oki 1977, 93), continued to underestimate the importance of consultation, contributing to the further erosion of the legitimacy of adat chiefs and the essential fluidity and negotiability of the outcomes of adat.

Disputes regarding the application of adat proliferated, leading to selectively integration of various interpretations of state, adat and Islamic law to reconcile divergent perspectives (von Benda-Beckmann 1985; Benda-Beckmann and Benda-Beckmann 2012). Consequently, the interpretation of adat became a battleground for contesting colonial authority, in which rigid, narrow and homogenizing colonial application of adat added new layers to its interpretation (cf. Von Benda-Beckmann, 1982, 47; Benda Beckmann 1984; Benda-Beckman and Benda-Beckman 1988, 1999). The introduction of taxes on false premises and the ways these premises violated local social order and consultation was recognized as another leap in a process of decades of purposeful disregard of adat life. While adat had always been subjected to transformation, the persistent violation of social order by colonial interference suggested a deliberate effort to the Minangkabau to unsettle adat society and its systems of land tenure, inheritance, political leadership and family life and organization, leading to a downward spiral of escalating mistrust and disengagement (Kahin 1999).

The imposition of taxes had thereby made the recognition and legitimacy of the colonial government and its operation through invented adat institutes itself a central point of contention. The attempts of the colonial government to directly authorize, sanction and validate specific duties and rights implied the recognition of the colonial government as adat authority itself, thus ‘authorizing the authorizers’ (Lund 2021, 8–9). But without taking the proper consultative mechanisms into account, such authority was bound to get rejected. The 1908 and 1914 revolts were as much a protest against taxation, exploitation and social destruction, as against the claims of the colonial government to attempt to govern adat.

Conclusions

In postcolonial Indonesia, Benda Beckmann (1985) has revealed, some judges seemed to have aspired to an ideal emulation of Dutch-style dispute resolution, where legal questions were answered swiftly by applying norms straightforwardly, in contrast to the supposedly opaque and complex reference framework of adat rules. However, under the Dutch colonial state, such ideal practices never existed. Justice administration in the Dutch colonial state Indonesia entailed the constant outsourcing of administrative practices and association with pre-existing orders, where adat became a malleable tool intricately woven into the fabric of colonial policy. The detachment of the colonial state and its inability to uphold its own ‘correct’ version of adat facilitated the preservation of plural adat orders by indigenous actors. In Java, this fostered ongoing negotiation among villagers and with village chiefs. In contrast, in West Sumatra, the government’s unilateral approach rendered its policies contestable and deemed invalid by the colonized, resulting in direct opposition and violence. These divergent outcomes in Central Java and Sumatra underscore the significance of local contexts and conditions, reflecting the diverse nature of adat and its responses to colonial policies.

As Franz and Keebet von Benda-Beckmann have elucidated (1979, 2011, 2012, 2013, 2019), the colonial impact on the interplay between formal legal systems and informal, community-based practices at the level of normative constructions of these entanglements rendered a “pluralism of legal pluralisms,” underscoring how postcolonial reviews often exaggerated the influence of colonial power frameworks (Benda-Beckmann and Benda-Beckmann 1988; Benda-Beckmann 1981, 1992). This article has extended their analysis by pointing out the messy debris of clumsy colonial administrative attempts at legal acculturation, with colonial interpretations and knowledge production often obfuscating rather than clarifying the historical development of customary law.

Dutch colonial policy used existing social organization and customary law to invent and inscribe new adat realities, challenging past versions, to furnish colonial order and exploitation. Taxes and services were wielded as transformative tools to shift communal landholding towards individual income generation and manipulate property regimes. However, the creation of these ‘new colonial’ forms of adat was not solely a government initiative but emerged through an interplay with local indigenous actors who contributed to its evolution. These actors, who after all had centuries of experience in integrating and mediating foreign elements and adapting to external pressures, skillfully employed strategies to disregard government decrees, resist colonial authority, or negotiate directly with colonial officials.

As a result, adat became an arena where state administrators, indigenous rulers, adat chiefs and religious authorities faced each other’s deficiencies and contradictions and confronted and contested each other’s sociopolitical and -legal claims. These interactions further shaped adat and state law, enhancing the complexity of both while also providing multiple new avenues for pursuing distinct interests. They added new layers to adat generating a complex legal plurality that intertwined local customary, religious and state law and authority. And they preserved adat as a resilient, flexible source of diversity, impervious to homogenization by colonial, religious or national authorities. This illustrates how legal pluralism emerged not solely from conflicts or differences in the interpretation of customary, religious and state law, but from the engagements and interactions among them as shaped not in government institutes, universities or office buildings, but in the field, in direct interaction and negotiation on the spot. Herein, colonial intervention supplemented rather than implemented the ongoing process of transforming the nature of adat.

In contemporary Indonesia, as in many other postcolonial societies, incorporating indigenous people’s rights into designated customary law communities is often viewed as limiting their agency, relegating them to the margins of international law (Li 2007; Benda-Beckmann 2013, 416–418; Benda-Beckman and Benda-Beckmann 2017; Benda Beckmann 2019, 11–12). However, as this article has argued, we should not overestimate the power of (colonial) states to impose such limitations. Seen from the perspective of local communities, colonial constructs may have also provided new opportunities for some to escape parts of the constraints of customary law and interpret the state and emerging pluralistic legal systems on their own terms.

Acknowledgements

I am grateful to the Adatrechtstichting and the Philippus Corts Fonds for providing financial support allowing me to write this article. I would also like to thank three anonymous peer reviewers for their valuable suggestions and input.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

I am grateful to the Adatrechtstichting and the Philippus Corts Fonds for providing financial support allowing me to write this article.

Notes

1 Staatsblad van Nederlandsch-Indië (‘s-Gravenhage: Schinkel; Batavia: Landsdrukkerij 1816-1948) (hereafter Stbl.) 1847 no. 23.

2 Stbl. 1889 no. 267.

3 Stbl. 1893 no. 172-186 and 189, for the following regions: Probolinggo, Semarang, Madura, Cirebon. Kediri, Surabaya, Tegal, Pekalongan and Besuki, Jember, Banyuwangi, Madiun, Pasuruan and Jepara. The remaining parts of Java would follow later in the 1890s. These ordinances were updated every few years to gradually replace services with monetary taxes and increase the tax rate.

4 National Archives, The Hague [hereafter NA], Archives Ministry of Colonies [MinKol] 1901-1953 Openbaar Verbaalarchief [Public Minutes; OV] inv. no. 441, Verbaal [minute; hereafter Vb.] 6 March 1907 nr. 27, herein: Minister of Colonies to Council of Ministers, ‘conceptordonnanties’ and ‘Advice department A2’, 6 March 1907.

5 National Archives of Indonesia (ANRI), Archives of the ‘Algemeene Secretarie’ Grote Bundel’ series [hereafter: AS GB] inv. no. 4038, herein: ‘Missive Gouvernementssecretaris’ (MGS) 15-3-1900, ‘Nota Heerendienstplicht,’ Resident Kedoe, pp. 1-10, esp. pp 4-5; ‘Advies Hoofdinspecteur der Cultures.’

6 Ibid.

7 Ibid.

8 Stbl. 1893 no. 68, art. 2.

9 Ibid., art. 6.

10 Arsip Statis Kadipaten Pakualaman Yogyakarta inv. no. 224: No. 271/MD and 273/MD: Parentah Hageng Kepatihan di negeri Pakualaman kpd. Mas Riya Wangsadirja (wadana dhistrik di Adikarta), 25-5-1898 and 26-5-1898.

11 Arsip Statis Kadipaten Pakualaman Yogyakarta No. 572: Mantri Pulisi Ngabehi Reksadiwirya to Parentah Kadhistrikan di Galur, No. 1067, 14-11-1903.

12 Ibid.; 425, Arsip Statis Kadipaten Pakualaman Yogyakarta No. 425, Salinan perintah No. 190/E 3-5-1900, Jaksa Hageng kpd. Ngabehi Jayeng Santosa (cf. Moertono 1968:117).

13 Stbl. 1901 no. 204, art. 1 and 5; ANRI AS GB MGS 4038, herein: ‘Voorschriften ter uitvoering van de ordonnantie tot regeling der heerendiensten in de residentie Kedoe’; ANRI AS GB TGA 10649, herein: MGS 31-12-1910: Director ‘Binnenlands Bestuur’ to Governor General, 7-10-1910 and MGS 21-1-1911, Raad van Indië, 31-12-1910; Fokkens 1908 II:90.

14 ANRI AS GB 10649, herein: MGS 31-12-1910, Director ‘Binnenlands Bestuur’ to Governor General, 7-10-1910.

15 ANRI AS MGS 4477, herein: MGS, 11-5-1908: Governor ‘Sumatra’s Westkust’ to Gouvernor General, 30-4-1908.

16 Ibid.

17 Warta Hindia, 30-5-1919 (in: IPO 1919 no. 55), quoted in: Oki 1977:79.

18 NA MinKol, Memories van Overgave, inv. nr. 163 (Governor Heckler, 1910).

19 Stbl 1914 no. 130-131 and 1915 no. 190-191.

20 Warta Hindia 15-5-1926, no. 45-49.