Reviewed by Jeremy Menchik, Department of Political Science, University of Wisconsin-Madison. Email: menchik [at] wisc.edu.
ISLAMIC LAW IN CONTEMPORARY INDONESIA, edited by Michael Feener and Mark Cammack, is a publication of Harvard Law School’s Islamic Legal Studies Program, as part of its series in Islamic Law. The chapters are based on papers presented at a conference in April 2004, by a group of authors as diverse as the subject matter. They include scholars of history, theology, anthropology, law, and sociology as well as political activists and a sitting judge on the Indonesian Supreme Court. They come from Indonesia, Australia, the United States, and the Netherlands. Their field sites include the traditional arena for studies of law: the courts, positive law, legal theory, and state institutions. Yet, they also include sites that reflect the role of Islamic law in the lived experience of Indonesians: within social movements, mass organizations, public education, and in family life beyond the courtroom.
At first glance, the shortcoming of the volume might appear to be the diversity of its approaches to Islamic law. This heterogeneity contributes to the lack of engagement with any specific social science debate, empirical or theoretical. Readers looking for a unified argument or a discrete set of findings will be disappointed.
Such a critique, however, misses the value-added of the text. The book is a collection of well-written chapters analyzing Islamic law and society in the world’s most populous Muslim state. In addition to contributing to Islamic legal studies, the volume includes highly accessible chapters that could be incorporated into undergraduate or graduate syllabi addressing law and society, law and social movements, gender and law, legal culture, and comparative legal institutions. Given the current popular interest in Islam and politics (and paucity of empirically-motivated material), a number of chapters deserve wide circulation.
The chapters are divided into three sections. The first section addresses legal thought, education, and the production of fatwas (a judicial opinion issued by a religious leader in response to a specific question or issue of dogma). The second focuses on formal legal institutions. The third section, an appendix, provides a descriptive overview of Islamic legal education.
Feener and Cammack open with an analytical framework. They conceptualize Islamic law as a discursive practice organized around social norms and oriented toward a particular area of social life. They contrast this approach against both the essentialist view of [*1002] Islamic law, which privileges one “authentic” tradition over others, and against a disintegrative approach, which claims all interpretations are equally valid (pp.1-5). In their approach, Islamic law is a discursive tradition made up of norms, information, and a capacity for change.
In the Indonesian context, Islamic law is a site for conflict and exchange between multiple legal traditions. This includes the “indigenous” legal tradition embodied by adat, local customary law formalized by the Dutch colonial government, the “imported” legal structures from the West, and the Islamic legal tradition itself (p.5). Curiously, the editors neglect to discuss the implications of the internal diversity in the Indonesian Islamic legal tradition. As the chapters by Laffan, Doorn-Harder, and Feener make clear, the “Islamic” tradition is composed of modernists, Islamists, traditionalists, and various hybrids therein.
Feener (Chapter One) picks up on this diversity in his overview of twentieth century religious discourse. He argues that social, economic, cultural, and intellectual changes at the turn of the century had two key effects on Muslim legal thought. First, legal thought came to be organized around the institutions of the school, the voluntary association, and the print media. Second, newly emergent Muslim intellectuals broke the “monopoly on religious discourse previously maintained by the ulama” (p.14). Feener argues that the emergence of these intellectuals had epistemological implications for the Islamic traditions in Indonesia, namely that new sources of information began to influence the traditional corpus of Muslim discussion and debate.
Feener illustrates these claims by using vignettes of prominent Muslim activists and their institutions: A. Hassan and the organization Persatuan Islam; Nurcholish Madjid and the emergence of Islamic Neo-Modernism; Sahal Mahfudh, Masdar Masudi, and the “new” traditionalists of Nahdlatul Ulama. Likewise, he provides an overview of key intellectuals and the development of new strains of Islamic thought; Moenawar Chalil and changes in the sources of religious authority; Hasbi Ash Shiddieqy and the development of Islamic education; Hazairin and the modernization of reformist rhetoric; M. Natsir and Anwar Harjono’s struggle to synthesize natural law with Islamic jurisprudence. These portraits provide a vivid picture of the country’s intellectual heritage and bolster the volume’s claim that Indonesia merits greater attention within the world of Islamic legal studies.
Nelly van Doorn-Harder’s chapter (Two) portrays the efforts of scholars and activists to strengthen women’s position within Islamic legal structures by identifying, critiquing, reinterpreting, and promoting progressive fiqh texts about women. Fiqh is traditional Islamic jurisprudence. By re-reading fiqh texts concerning women, scholars sought to reinterpret religious texts using a system of “social ethics that uses philosophical methodologies to analyze social and cultural problems” (p.33). In other words, political activists and scholars used a method-centered approach to advance progressive understandings of religious texts. They used this new legal scholarship to empower Muslim women [*1003] and men, help advance a democratic society, and combat hierarchical gender structures in Indonesia (pp.35-36).
Skipping ahead, Mulia and Cammack’s chapter (Seven) provides a similar example of an effort to promote human rights and to eradicate gender discrimination while maintaining respect for classical scholarship. In her capacity as Special Assistant to the Minister of Religion, Mulia led a committee of Islamic legal scholars in drafting an Islamic marriage code titled the Counter Legal Draft (CLD). The CLD was rooted in Islamic first principles, namely tawhid (the central Islamic doctrine of the oneness of God). The principle of the oneness of God was then interpreted as implying the principle of the equality of all human beings, including men and women (pp.135-136). The CLD went on to promote interpretations of Islamic law on marriage that were more egalitarian than the present legal code on marriage. While the draft was shelved due to popular controversy, it continues to generate conversations among contemporary Muslim thinkers and activists.
Both the Van Doorn-Harder and the Mulia and Cammack chapters would be useful texts for courses addressing law and social movements, or law and gender. Van Doorn-Harder provides an illustration of how activists can advance social change by appropriating the legal symbols and discourse of more conservative Muslim groups. Both chapters provide a corrective to the common refrain that Islamic law impedes social change by preserving male-dominated gender structures (Fish 2002; Ross 2008; Warrick 2005). Instead, the authors show that Islamic law can provide the foundation for strengthening the position of women within Islam and a tool for combating misogynist policies (p.42).
Moving backwards, Chapters Three, Four, and Five are likely to be of most interest to scholars of Indonesia. Van Dijk (Chapter Three) provides a descriptive overview of a prominent fatwa-issuing institution, the Majelis Ulama Indonesia (Indonesian Council of Religious Scholars, MUI). He argues that the diversity of religious organizations in Indonesia, as well as the internal diversity in the MUI, means that no single organization can provide authoritative decisions on religious matters. Van Dijk contrasts Indonesia with Malaysia, which has incorporated religious opinions into binding state law. He concludes by sketching tentative hypotheses about religious versus political authority, but refrains from fleshing out his theories. In doing so, he misses an opportunity to help scholars better understand the MUI, which has become one of the most important, yet-understudied, organizations in the world of Indonesian Islam.
Laffan (Four) provides a more systematic analysis of the Jam’iyah Ahlith Thoriqoh al-Mu’tabaroh (JATM), a little-known Indonesian Sufi organization. Drawing on two compilations of fatwas, Laffan traces the history of ideas and political alliances of the JATM including factions within the organization and their political behavior. He locates JATM within the traditionalist sphere of the Nahdlatul Ulama (NU), although he shows how JATMN (a splinter group from the original JATM) privileges the link between teacher and student over [*1004] political alliances. Laffan’s strength is his narrow focus, and his chapter could be of use to other scholars of Sufi jurisprudence.
Ka’bah (Five) describes the practice of law-making in two fora: the religious courts (Pengadilan Agama) and the fatwa boards of Muhammadiyah and NU, both prominent social organizations. He outlines the basic functions of the courts and echoes Van Dijk’s (Chapter Three) contrast between fatwa bodies that are and are not authorized state institutions. Ka’bah provides an overview of Muhammadiyah’s fatwa-issuing institution, Lajnah Tarjih, and suggests that the lack of Arabic literacy among Muhammadiyah youth may create problems in the future. His discussion of NU’s fatwa-body, Lajinah Bahth al-Masa’il, likewise emphasizes the method of issuing fatwas and the social context in which Islamic law is made.
Chapters Six, Eight, Nine, and Twelve focus on more familiar terrain for legal scholars: formal legal institutions and education. Cammack, Donovan and Heaton (Six) explore the social, political and institutional tensions behind Islamic divorce law and practice. They begin with an overview of Islamic law doctrine on divorce and the Marriage Act of 1974. The Marriage Act reflected an uneasy bargain between groups that wanted traditional divorce doctrines to remain in place and government reformers bent on making divorce more difficult. That tension has played out in the Islamic courts and and Supreme Court’s administration of the Act as well as informing marriage practices in society.
Cammack et al.’s chapter embodies the best research practice in the law and society tradition. Rather than taking the law as a static indicator of the Islamic divorce regulations, they show how the religious court’s administration of the law relied heavily on prior practice. Rather than assuming that laws are implemented uniformly across institutions, they show how the Supreme Court applied a distinctly different understanding of the Marriage Act than the religious courts. Rather than assuming institutional arrangements put in place in the 1974 Act remain static, they show how institutions expanded their jurisdiction into the religious sphere by assimilating statutory grounds for divorce and Islamic divorce procedures (pp.107-117). In the final ten pages, they go outside the institutions, situating legal changes within society where divorces have been steadily declining since the early 1970s. Using panel data from the Indonesian Family Life Survey, they note that an enormous proportion, around one-half of all divorces, occur outside the courts. They conclude by sketching out possible reasons for such widespread non-compliance and by reminding the reader of the potential gap between legal institutions and law in society.
Cammack’s solo chapter (Eight) is another excellent contribution to law and society research although the substance also suits discussions of comparative legal institutions. He traces the history of the Islamic judiciary from the colonial period to the present, pinpointing major causal forces that shape the Islamic courts. This includes the legacy of the Dutch colonial period (pp.147-148), the influence of political alliances after independence (pp.148-150), major laws [*1005] (pp.150-154, 157-160), the power of administrative regulations (pp.151-154) and the professionalization of the staff (pp.160-164).
Bowen’s chapter (Nine) provides a good companion piece to Cammack’s. Although some of the author’s previous work (2003) is too theoretically sophisticated for an undergraduate course, this chapter could be integrated into courses addressing law and society, comparative law, and legal culture. Bowen combines rich ethnographic data with careful tracing of cases over time. He argues that judges in an Islamic court in Central Aceh draw on social norms in justifying their decisions in inheritance cases. He differentiates between two types of fairness norms, the ones that judges hold regarding fairness and equality, and those that judges believe to be held by legal disputants (p.190).
In his 2003 work, Bowen argued that social norms underpin the legal reasoning employed by judges. Here he focuses on role of norms in the language of justification, drawing a subtle distinction between norms as guides and norms as rhetorical tools for rationalizing decisions made on other grounds. The distinction is hard to delineate empirically and requires the author to have an intimate understanding of Indonesian Islamic law, the judicial process, local adat (tradition or custom) law, and what Bowen calls “everyday principles” (p.191). Bowen pulls it off admirably, and the result is a model of how to combine theoretical and empirical work on legal culture.
Azra’s concluding appendix (Twelve) is a description of changes in the Indonesian Islamic higher education institutions from independence to the present. It is a comprehensive empirical piece and fills a notable gap in the state of knowledge about Islamic higher education. Future scholars of Indonesian Islamic education will undoubtedly find it a useful starting point for their research.
The remaining chapters (Ten and Eleven) address the resurgence of Islamic law in Aceh. Ichwan provides an analysis of “Shari’a discourse” and power relations between the regional government, central government, and the religious establishment. He claims that Shari’a has become the “master signifier” in Aceh and demonstrates how discussions of religion permeate discussions about regional autonomy, the religious courts, the newly named Shari’a courts, local legislation regulating moral issues like gambling and alcohol, and women’s head-coverings. While he convincingly shows that Shari’a is a heavily debated issue within Acehnese religious life, longitudinal data from historically non-religious spheres such as business, agriculture or fishing, would have made his claim significantly more compelling.
Lindsey, Hooker, Clarke and Kingsley’s chapter argues that the Shari’a revival in Aceh stems from a regional form of conservativism heavily rooted in an idealized past. They note that, for proponents of Shari’a, “the seventeenth to mid-twentieth centuries are imagined as Aceh’s “golden age,” a period when it was an independent power in the region, excelling, in relative terms, in the fields of science, law, economics and politics” (p.217). They then detail how proponents struggle to implement their ideals within the context of pressure [*1006] from Jakarta, competition between political institutions, changes in the jurisdiction of course, the staffing of the religious courts, and the vexing problem of overlapping authority. They note the competition between the legislature’s Qanuns (Islamic legal code or statute) and the bureaucratized version of Islamic law enforced by the religious courts, predicting further competition and confusion under the watchful eye of Jakarta. The chapter covers a wide territory and could be used to discuss comparative legal institutions, comparative Islamic law, and law and society.
Overall, the volume is a welcome contribution to scholarship on Islamic law and society as well as political science. Scholars of Islamic law will appreciate the volume’s solid empirical grounding. From these foundations, future scholars will be able to branch out beyond the study of the religious courts and Acehnese Shari’a into hitherto overlooked areas such as the Islamic food certification industry, Islamic banking, the recent campaign against apostasy, Islamic advertising (now ubiquitous in Jakarta), and the role of Islamic law in the lives of the pious middle class. Political scientists should appreciate the accessibility of the chapters, which can be easily integrated into courses on law and politics. While there is no single theoretical take-away, the methodological and empirical diversity of the text make it an asset to a discipline searching for ways to talk and teach about Islam and politics.
Bowen, John Richard. 2003. ISLAM, LAW, AND EQUALITY IN INDONESIA: ANTHROPOLOGY OF PUBLIC REASONING. Cambridge, UK: Cambridge University Press.
Fish, M. Steven. 2002. “Islam and Authoritarianism.” 55 WORLD POLITICS 4-37.
Ross, Michael. 2008. “Oil, Islam, and Women.” 102 AMERICAN POLITICAL SCIENCE REVIEW 107-123.
Warrick, Catherine. 2005. “The Vanishing Victim: Criminal Law and Gender in Jordan.” 39 LAW & SOCIETY REVIEW 315-348.
© Copyright 2008 by the author, Jeremy Menchik.
Islamic Law in Contemporary Indonesia: Ideas and Institutions (Harvard Series in Islamic Law)