Law, Colonial Systems of, Dutch Empire

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Law, Colonial Systems of, Dutch Empire

Export of Dutch law to its various overseas possessions (Brazil, 1630–1654; New York, 1626–1664; and Dutch Guiana, 1627–1975) is best exemplified by experiences in the Netherlands Indies (present-day Indonesia) between 1602 and 1942. Although not the longest colonial undertaking of Dutch expansion overseas, it was the most important.

The law applying primarily to Dutch citizens in territories acquired by the Dutch East India Company (1602–1799) was basically the law of the fleet or "Ships Law." Subsequently supplemented by Dutch legal practice at Batavia (present-day Jakarta), it found expression in the Statutes of Batavia (1642), revised in 1766 as the New Statutes of Batavia. In the latter, attempts were made to incorporate Javanese law. These particularly concerned the special place of Islam with regard to marriage, divorce, and inheritance. On paper, local law remained valid. In practice, the increasing involvement of the Dutch East India Company administrative state in the island's political and economic life resulted in the demise of written courtly law with the resultant rise of the unknown and unknowable customary (adat) law.

The continuity of the Dutch colonial system of law was hampered by the political underdevelopment of the metropole. Until the early nineteenth century, the Dutch political entity consisted of seven heterogeneous provinces. Solely by virtue of their geographic position, they had been able to assert political independence from their liege lord, Philip II of Spain (1527–1598). A national Dutch state was created in 1816 as a result of international politics culminating in the Congress of Vienna. Even then, a legal basis for the kingdom was delayed by war with the southern Netherlands, which in due course would become Belgium. Only after a finished constitution was promulgated in 1838 could attention be turned to regulating law in the colony.

The Netherlands East Indies Constitution (Regeringsreglemente) of 1854 enshrined two basic principles. The first was the concordance principle, ensuring that Dutch persons residing in the Indies would be subject to the same laws and ordinances as those living in the metropole. The second was that of duality: Dutch laws applied to the Dutch and those considered as such; "native" law applied to the indigenous population. From the latter followed the doctrine of applicability, through which "natives" could legally become "Dutch," voluntarily or at the discretion of the government, temporarily or permanently. The assumption was that the natural superiority of Dutch law would attract enlightened "natives" (inlander), which would ultimately result in legal unification. Ethnicity was a legal definition, albeit with far-reaching social effects. Criminal and commercial law were unabashedly European.

Traditional scholarship has empathized the importance of customary law (adat recht) as applying to the indigenous population. Based upon the work of Dutch legal scholar Cornelis van Vollenhoven (1874–1933) and his disciples at Leiden University, who were greatly influenced by the Historische Rechtsschule (Historical School of Law) of German jurist Friedrich Karl von Savigny (1779–1861), the Indonesian archipelago was divided into some seventeen so-called "law circles," each assumed to reflect the customary law of that region. Thus, to the two nonindigenous law systems—Dutch, plus after 1918 that of the Foreign Orientals (Sino-Indonesians)—came these mutually exclusive sets of oral laws. Under the circumstances, "forum shopping" and the "conflict of laws"—a determination of which set of laws were valid in cases between individuals from different ethnic or legal groups—almost overshadowed the law itself.

Recent scholarship tends to see the adoption of the adat either as an instrument of the nationalist project or as one providing the rationale for incorporating the bureaucratic nobility (priyayi) into the Dutch colonial system. The priyayi were declared to be the sole sources of adat canon. They constituted the "natural leaders" who were bound to the Dutch by "perks" in office.

The odd man out was religious law. Dutch penchant for seeing religion as the basis of indigenous law is attested to by the General Provisions on Legislation for the Netherlands Indies (1846–1848), which stated that for the natives, "their religious laws, institutions, and customs are to remain in force." Islamic features were recognized, but depended for their validity on being part of the customary law system rather than a system of shari'a (Islamic law) in its own right.

The combination of late state-building and early recognition of legal pluralism reduced Dutch imperialism to an extension of existing control rather than new projects. Particularly under Governor-General J. B. van Heutsz (1851–1924), the conqueror of Aceh, the borders of the Netherlands East Indies were pushed out over the greater part of the archipelago. With them came the complex system of legal plurality already established on Java. The fact that the Outer Islands' indigenous legal system was influenced at a far later date than that of Java led to a sharpening of the administrative contrast between the two with regard to both theoretical and practical results.

Although less elaborate, legal pluralism continued under the Republic of Indonesia. According to the constitution of 1945, "the regulations and state organs present at the moment of the birth of the Republic on 17 August 1945 remain in force," as long as they were not superseded by new laws and did not conflict with the contents of the constitution. The Indonesian Republic's founders were split between those extolling the virtues of the customary village ideal assumed to be ordered by the adat and those orientated to formal legality at the national level.

Certain paragraphs of the constitution conceived the state as a hierarchy of laws, others as a more teori integralistik (totalistic concept) in which the communal principles underlying adat came to the fore. Whatever the case, law under the "New Order" (1966–1998) was an opportunistic mixture of both, depending on the interests of the political and economic elite. Indonesia's self-proclaimed rechtsstaat (state bound by the rule of law) was belied by its proclaimed Panca Sila (the five principles mentioned in the constitution's preamble) basis stemming from its Indonesian historical and romantic ideas. Elements of the adat were specifically allowed. Yet they had to give way to the exigencies of the development state when they stood in the way of development, as in conflict with Western-style ownership rights and unlimited access to natural resources. The country's natural resources were placed under the disposal of the state apparatus without reference to indigenous ownership rules or access to society's commonly held goods. Access to the means of production was governed by the positive rules of the rechtsstaat.