The last century saw the reformulation of shari'a into European forms (codes, statutes, and cases) throughout the Muslim world. As part of this, the sphere of the shari'a has also been restricted to family law and trusts. The result is a triumph for secularization in that we now have laws for “Muslims” rather than “Islamic” law as such. That this is the case in the new millennium should not surprise us; it is an inevitable result of direct colonial rule added to — since the 1950s — by a voluntary acceptance of Western canons of jurisprudence especially in the Middle East. In a very real sense as well, it is the logical result of the works of Muhammad ‘Abduh and his followers whose reduction of the classical fiqh to a “natural law” has been amply documented. In short, the nation-state now determines the definition of shari'a in all the lands of Islam; the ummah is no longer the primary point of reference, instead it is the constitution(s) of the state(s) which defines Islam.

This chapter attempts to answer two questions for Indonesia: firstly, how did the state come to dominate?; and secondly, is the apparent dominance of the state necessarily permanent?

STATE DOMINANCE IN THE TWENTIETH CENTURY

Before coming to the debates which form the subject of this chapter it is necessary to list in short form the institutional structures through which the state dominates and determines Islam. These have been discussed elsewhere but I give the appropriate references for those who are unfamiliar with the subject.

1. • The Dutch colonial period. In 1882 a “Priest Court” was established for Java and Madura. It had limited jurisdiction in marriage, divorce, and wakaf. It could not enforce its own decisions which had to be approved by the Landraad (civil) courts. The 1882 regulation was amended in 1937 with a wider jurisdiction and powers of enforcement in respect of dowry and maintenance. The system was extended to South and East Borneo in 1938. Overriding jurisdiction was always in the secular courts.

2. • The Republic of Indonesia 1946–91. A Ministry of Religion was established in 1946 with supervision of the religious courts. The latter, based on the Dutch model, was extended to Sumatra and the Outer Islands until 1989 when a new Law on Basic Religious Justice was introduced. Its effect was to incorporate the religious courts within the general legal system.

Introduction

Almost thirty years ago Clive Kessler, in commenting on Islam in Kelantan, said:

This passage has led me to the Kelantan Syariah Criminal Code (II) of 1993 because it is a perfect focus for the issues raised by Kessler. In a very real sense, the Code is an attempt to translate an individual's obligations to God into a social duty enforced by the state and thus make manifest Revelation in the temporal world of the twentieth century. The Code is the formal structure, chosen by the Kelantan government, through which the dictates of Revealed obligation can be implemented — made “real” in Muslim society. Here is the first real difficulty; there is no necessary connection, causal or otherwise, between Revelation and a Code. Indeed, they are quite distinct and separate conceptions of obligation. This is true in theory but, as we all know, the past 200 years have seen selections from the Syariah (Muslim law) restated in European forms. The state, with its authority, selects whatever passages from Syariah it deems appropriate, simplifies, and reformulates them into the language and legal concepts felt to be appropriate to the time and place.

For Muslims, the authority of Islam is an alternative to the authority of the state, regardless of that state's particular ideological persuasion. This is as true now as it was for the Abbasids, the Ottomans, the former Soviet Union and the Imperial European powers of the 19th and 20th centuries. The issue has not subsided with the demise of imperialism. The successor states must still face and accommodate it. In the past 50 years, the relationship between the Indonesian state and Islam has changed constantly depending on the political circumstances of the time, ranging from oppression, conflict and control to an uneasy accommodation. It is a relationship that is difficult to characterise with any precision. It would be overfacile, for example, to describe any period of the relationship only in terms of conflict. Equally, accommodation, or attempts at accommodation, have not been overwhelmingly successful. Recently, however, the Indonesian state appears to have struck a more positive balance with Islam. The government has provided for the integration of syariah into the rapidly developing state.

Essentially, the issue is authority. Islamic purists claim authority from

Revelation; secular nationalists claim authority from the Constitution of the state. The ideal for some Muslim activists is the Islamic state. However, this in itself is a contradiction. Authority can have only one locus. The issue is always who has the power to exercise authority, and how this power is to be divided, controlled and transferred. As Pakistan shows, Islamic jurisprudence provides no sufficient answer for the contemporary nation state. Indeed the arguments about the nature of the Islamic state in the contemporary Muslim world usually reduce themselves to little more than vague generalities supposedly founded in seventh century Muslim practice. On the other hand, proponents of an Islamic basis for the state can and do point to parts of Islamic law (for example, family law) where rather more specific provisions are available.

The forms and expressions of the nation-state, such as constitutions, legal codes, and the distribution and separation of powers have developed from European political history over the past two centuries.

This collection of essays emanate from a conference held at the Australian National University in 1998 on the subject of “Law and the Chinese Outside China.” As it happened, the majority of the papers were concerned with the Southeast Asian diaspora Chinese, particularly in French Indochina and Vietnam, Malaysia, Singapore, and Indonesia; these areas are the main foci of this collection.

Two things very quickly became apparent from the material. First, from the legal perspective, it falls into one of three classes. These are: (i) Chinese legal thought outside China, (ii) laws of the diaspora Chinese and (iii) laws for the diaspora Chinese. In chapter 1, I attempt a detailed description of this classification.

Secondly, the idea of “Confucian” or “neo-Confucian” appears in a number of guises. It may be that a more purely analytic rather than merely descriptive study of diaspora Chinese law could usefully concentrate on this usage.

The authors and I are well aware that this collection is a preliminary contribution to this subject and that much remains to be done, especially in the West and South Pacific. Do our initial three classes hold up, and what of “Confucian” in these areas?

Funding for the 1998 conference was provided by the Chiang Ching-Kuo Foundation to whom we express our thanks. Thanks are also due to Professor Wang Tay-Sheng of the National Taiwan University. We also acknowledge the Faculty of Law, Australian National University for providing the funding for the index done by Mr Alan Walker.

The contributors and I owe a huge debt to Professor Wang Gungwu, doyen of diaspora Chinese studies, for his valued support in this project. We are also grateful to our colleagues from the Asian Law Centre, University of Melbourne: Associate Professor Tim Lindsey, Professor Veronica Taylor, Mr Sean Cooney, Ms Sarah Biddulph and Dr Penelope Nicholson.

Finally I would thank Mrs Triena Ong and Mrs Roselie Ang of the Institute of Southeast Asian Studies for their help and efficiency in seeing this book to press.

Personal law is a unique phenomenon and is found only in the ex-British possessions which had English (common) law as the general law for the population. It may be defined as rules (a) applicable only to persons of a specified race or religion (b) formulated in English law terminology (c) derived from indigenous manners or customs (d) but subject to English law standards of justice, equity, and good conscience. Well-known examples include the various African customary laws, the Anglo-Muslim laws of India, Pakistan, and Malaysia, the native laws of Sabah and Sarawak, Burmese Buddhist law, the Malay adat (customary) law and, the subject of this chapter, Chinese personal law.

Personal laws are sometimes called “hybrid” laws, and so they are in the sense that they are the offspring of quite different parents. However, they are more than just that. From the earliest days of their being, which we conventionally date from 1781 in Calcutta, they have taken on a life of their own. In some instances, for example, Burmese Buddhist law, they are a pure invention of the nineteenth century English judicial mind. By “invention”, I mean no denigration; on the contrary, this law, like all personal laws, can be seen as a true multicultural creation, the worth of which has stood the test of time. This is true also for such major systems as the Anglo-Muslim and Anglo-Hindu laws. Purists can and do criticize the complex rules developed over the past 200 years on the grounds of serious judicial error in understanding the classical texts of Islam and Hinduism. This is a perfectly legitimate complaint. However, the mistakes of 200 years ago live on and the whole corpus actually works quite well; it has a social as well as a judicial utility. The source of a personal law, whether it is by mistake or invention, does not really matter; it is the process of its growth and development which is important. The law reports contain rich material for what is now called “cross-cultural” studies but it remains under-used by historians and social scientists. One example is given in this chapter.

The Chinese personal laws of Singapore, Malaysia, and Burma have been described elsewhere. They are alive and well in 1999 in Malaysia and Singapore although their position in Burma is not known.

INTRODUCTION

“Law and the Chinese outside China” was the subject of a conference held at the Australian National University on 1–4 July 1998. The focus was the laws relating to those of Chinese descent who live outside China, now often called the “diaspora Chinese”. We have avoided the term “Overseas Chinese” which implies residence (longer or shorter) outside China. It is misleading because the great majority of the 20 million or so diaspora Chinese are, in fact, long-term citizens of the Southeast Asian and Western Pacific states in which they are concentrated. They are not citizens of China, and it is not uncommon to find many families who have resided for hundreds of years in Southeast Asia, and are loyal to those states.

For this volume a number of revised papers have been selected for publication. The selection has been difficult because of the complexity of the subject. This introductory chapter will give a brief overview of the issues discussed in the following chapters. The study does not pretend to be exhaustive; as far as is known, law and the Chinese outside China has never before been approached as a single subject for extensive discussion.

The Geographical Area

In this volume we are concerned with that geographical area in which Chinese law, in one of its forms, has become a vital part of the legal heritage. Broadly speaking, there are two areas. The first consists of Japan, Korea and Annam (Vietnam). These are the modern states in which, historically, the Chinese legal legacy has played a determining intellectual role. Each state has taken elements of Ming and Qing legal thought and adapted them for its own use (see below).

The second comprises the states of what is now called Southeast Asia, where the vast majority of the diaspora Chinese now live and have lived for several hundreds of years. From west to east, the states are: Burma (Myanmar), Thailand, Laos, Cambodia, Vietnam, Philippines, Malaysia, Singapore, Brunei, and Indonesia.

The West and South Pacific (the United States and Canada, Australia and New Zealand, and the Pacific Islands) are excluded because at this stage this area probably replicates the trends already experienced in colonial and post-colonial Southeast Asia. The South and West Pacific Chinese legal diaspora may of course become a field for further study but for the time being, they are excluded here.