While much has been written on the relationship between Islamic law and customary law in Muslim countries, for the most part, the literature reflects the conflict approach. To date, this methodological framework persists as most Western Islamicists continue to view the encounter between the two legal systems as conflict ridden. This thesis is an attempt to re-evaluate this entrenched paradigm. / By utilising the principles of Islamic legal methodology (usul al-fiqh) in conjunction with legal and socio-political approaches, this study seeks to shed new analytical light on the encounter of Islamic law with adat law (customary law) in Indonesia. The two legal systems, it is argued, have a shared existence long pre-dating the intervention of the colonial powers in Indonesian legal affairs, which speaks of accommodation and coexistence. In what is both a syncretic and a purist society, Indonesians have successfully harmonized the two legal traditions such that compromise and derivative solutions, based upon elements from both legal systems, have often been attained. In post-colonial Indonesia, the dialogue between the two sets of laws persists today as the tradition of avoiding conflict in legal resolution continues uninterrupted by the flux in legal policy from colonial to national rule. Family law in particular illustrates the endurance of such a phenomenon in the current period. Three cases--conditional repudiation, common property in marriage and obligatory bequest--are discussed as models of the two substantive legal systems working jointly to construct a new legal entity. The conciliatory exchange between Islamic and customary law in Indonesia refutes therefore the paradigm by which the two legal systems are posited as irreconcilable.

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The conflict between adat law and Islamic law is still a current issue in today's Indonesia. It is rendered even more controversial because it deals with the spheres of family law, marriage law and the inheritance system in particular. This is exacerbated by the fact that Indonesia is home to such a wide variety of social systems. Family structure patterns range from patriarchy to matriarchy and every shade between, with each system being supported by a nexus of indigenous or adat laws. To complete the confusion, there is the residual influence of Dutch policy. / Of the many attempts that have been made to resolve the situation, the contribution of Hazairin (1906--1975) deserves particular attention. Realizing that fiqh or Islamic law is the product of another place and time, he sought to accommodate it more to the realities of Indonesian Muslim society. For him this meant abandoning the Dutch legacy of privileging adat law over Islamic law, and replacing it with what he called a "bilateral system," based primarily on the Qur'an and h&dotbelow;adith. (Abstract shortened by UMI.)

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The formulation of the Kompilasi Hukum Islam di Indonesia (KHI), the standard reference on family law---marriage, inheritance and waqf---is the most recent legal milestone throughout the history of Islamic legal development in Indonesia. / The change of social perceptions on family law and the practice of living adat or customary law has been the major factor in the compilation of the KHI. The social and adat elements in the KHI are unmistakable and allowed by the concepts of `urf (usage), mas&dotbelow;lah&dotbelow;ah (public interest), sadd al-dhara'i` (blocking the means) and istih&dotbelow;san (juristic preference) in Islamic law. The KHI, in turn, is to change and make uniform the social perception of family law throughout Indonesia, which varies from one place to another. From a political perspective, the enactment of the KHI is to strengthen the position of the Islamic courts by putting them on an equal footing with other courts in Indonesia. Since the Islamic courts earlier lacked a codified or compiled material law to be used as the official reference in rendering legal decisions, the emergence of KHI is a positive step in that direction. Finally, the emergence of the KHI is a realization of the accommodative relationship between the government and Islam under Indonesian New Order era, both of which take advantage of the enactment of the KHI. (Abstract shortened by UMI.)

This thesis investigates the history and phenomenon of legal pluralism in Indonesia. The need to explore this topic has been urged by the revival there of Islamic law and adat law, the two greatest non-state normative orderings, in the last two decades. At the same time the ideal of modernity in Indonesia has been characterized by a state-driven effort in the post-colonial era to make the institution of law an inseparable part of national development. The result has been a conception of law as a homogenous system in which the ideology of legal positivism represents the basic tool for lawmaking. This, however, has led to an impasse, seeing that pluralism and multiculturalism are in fact self-evident phenomena in the society. The state has been obliged, therefore, to accommodate these non-state normative orderings. / The discussion of Indonesian legal pluralism in this thesis focuses on understanding the state's attitude and behavior towards the three largest legal traditions currently operative in the society, i.e., adat law, Islamic law and civil law. Socio-political factors are shown to have much influenced the relations between state and non-state laws. The state's strategy of accommodation of legal pluralism has in fact largely depended on the extent to which those legal traditions have been able to conform to national ideology. Certain "national legal postulates" have functioned as a yardstick by which the country's legislative and judicial institutions have measured the extent of their accommodation of legal pluralism, although they have had little choice but to do so. / Influenced by Masaji Chiba's theory of "three levels of law" (i.e., official law, unofficial law and legal postulates), this thesis analyzes two aspects of legal pluralism in Indonesia: the political and "conflictual" domains of legal pluralism. The analysis is thus generally based on the state policy of legal pluralism reflected in the legal and political strategies confronting the issue of unofficial laws as well as the conflicts arising from such situations. The first aspect is addressed by looking at a number of statutes and regulations promulgated specifically to deal with Islamic law and adat law, while the second is analyzed in terms of actual cases of private interpersonal law arising from conflict between state and non-state legal traditions, as reflected in legislation and court decisions. From a discussion of these two aspects, the thesis concludes that, although the form of the relations between official and unofficial laws may have changed in conjunction with the socio-political situation of the country, the logic behind legal pluralism has in fact never altered, i.e., to use law as a tool of state modernism. Thus conflicts arising from the encounter between different legal traditions will usually be resolved by means of "national legal postulates," making the unofficial laws more susceptible to the state's domination of legal interpretation and resolution.

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