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DEBATES ABOUT THE PLACE OF ISLAMIC LAW IN SOCIETY: SNOUCK HURGRONJE AND VAN DEN BERG REVISITED

By STIJN CORNELIS VAN HUIS (August 2019)

During the time Snouck Hurgronje started his career (1881), the colonial powers were more than concerned about the effects of pan-Islamism on the Muslim communities they ruled over. In present-day Europe, Islamization is put on the political agenda once again. So perhaps not surprisingly, the ideas of Snouck Hurgronje have also been reactualized. In 2010, an article of the leftist Dutch newspaper ‘De Groene Amsterdammer’ argued that in order to counter Islamism, the Netherlands requires an Islam policy, based on Snouck Hurgronje’s colonial policy for the Netherlands Indies, which gave sufficient room for Islamic worship but crushed any political Islamist aspirations. The author subsequently portrays the brilliance of the young Snouck Hurgronje, who, through his sharp pen, managed to destroy the reputation of L. W. C. van den Berg, the Islamic and Advisor for Oriental languages and Islamic law in the Netherlands Indies during that time. According to the author, old-fashioned Islamic experts like Van den Berg were responsible for a distorted and too optimistic image of Islam in colonial times – and today’s Islamic experts are not much better. According to the article Snouck Hurgronje single-handedly corrected this flaw, by introducing a no-nonsense policy which was based on empirical knowledge – not some abstract image of Islamic law.

In this brief essay I will look deeper into the debate about the place of Islam in the Netherlands Indies. In so doing, it will distort the idealized image of Snouck Hurgronje and challenge the originality of the fundaments of his ideas about Indonesian Islam and adat. Van den Berg also acknowledged that adat played an important role in daily practice. The starting points of these two gentlemen were diametrically opposed: Van den Berg considered that Islamic law as the fundament of Indonesian law for Muslims and Snouck Hurgronje that this was adat. Yet close reading of their work reveals that it is a grove oversimplification to picture Van den Berg as someone who endorsed a full application of Islamic law in Indonesia and Snouck Hurgronje as someone who wanted to diminish the scope of Islamic law in Indonesia.

There is indeed evidence that the fundaments of Snouck Hurgronje’s ideas about the place of Islam and adat were derived from his predecessors and contemporaries, including L. W. C. van den Berg – favourite subject of his epistemological ridicule.

In the history of Islamic studies few names stand out so prominently as that of Christiaan Snouck Hurgronje (1857-1936). Snouck Hurgronje was one of the pioneers in the scientific study of Islam in Europe – his works were published in the Netherlands, Germany, and France. He is also seen as the father of the study of Indonesian Islam and was the designer of the Islam policy for the Netherlands Indies. Nonetheless, Snouck’s figure is not without controversies. He converted (or pretended to have converted) to Islam in order to be able to go to Mecca – on a mission to collect intelligence about Indonesian pilgrims for the Dutch government. He married the daughter of the regent of the penghulu of Ciamis – according to him in order to facilitate his research and had four children with her.

He clearly put his personal life, his knowledge and skills in the service of the Dutch colonial project and he figures in this capacity in Edward Said’s monumental book Orientalism (1978). In the 1970s the ruthlessness of his advice on the Aceh-war became subject of sharp (posthumous) criticism. In 2014, Kevin W. Fogg has uttered more fundamental critique by asserting that in studying the native communities in the Netherlands Indies Snouck Hurgronje could not free himself from the ‘Arabic lens’ he had mastered during his doctorate study in Leiden – a lens which is still very much present in Islamic studies. According to Fogg his Arab-centrist image of Islam, affected Snouck’s view of Indonesian practices of Islam as being superficial – which correspondents with Snouck Hurgronje’s conclusion that adat was the more dominant normative system in Indonesia.

In this essay I questions the originality of two main pillars of  Snouck Hurgronje’s typology of Indonesian Islam by comparing them with the writings of his predecessor Van den Berg, Islamic law professor and the first advisor for Arabic languages and Islamic law in the Netherlands Indies (1878–1891), who had been responsible for drafting S 1882/152 concerning ‘priest councils’. First, I will dispute the originality of Snoucks idea concerning the dominance of adat (custom) over Islamic law in Indonesia. This opinion was actually quite common among Dutch colonial observers of Indonesia. Second, I will question the claim that Snouck’s Islam policies were all empirical knowledge-based – that he always showed a preference for the living law. A preliminary analysis of his opinions[1] in the ‘Adviezen’ regarding complaints about family law judgments by Islamic judges indicates that Snouck Hurgronje showed a preference for literal interpretations of Islamic law and denounced judgments by religious courts in which Islamic law was applied leniently.

To start with the first point, Snouck Hurgronje is generally considered the inventor of the term adat law. Harry J. Benda called Snouck “the first Dutch scholar to recognize both the importance of adat, or customary law, and the limitations which it imposed on the influence of Islam in the social and legal life of its Indonesian believers” (1958: 341). More recently, Michael Feener, the renowned expert on Indonesian Muslim legal thought, stated how the categorical separation of Sharia from adat, in the realm of law constituted a significant element of Snouck’s approach (2011: 70). A brief search in pre-Snouck colonial literature reveals that Snouck’s separation of Islam and adat was not revolutionary at all. As we will see, Van den Berg recognized this separation between Islam and adat and even argued that “adat norms with legal consequences” (Van den Berg used this term before Snouck first used the term adatrecht in his famous book ‘De Atjehers’) applied to Muslims.

It is true that Berg had stated that by pronouncing the Shadaha (creed) Indonesian Muslims had subjected themselves to the Sharia (Berg 1892).  This was in line with opinions of nineteenth century academics like J.F.W. Van Nes (1850), S. Keijzer (1853) and A. Meurenge (1884) who had published works about Islamic law. The common trait of their works is that they supposed a full applicability of Islamic doctrine to Muslims. In their conception, which has become known as the receptio in complexu theory, a Muslim implicitly has subjugated himself to the Sharia. Local practices which were contrary to Islamic law were described as being “anomalies” by these scholars.

The idea of the receptio in complexu became subject of sharp criticism by Snouck Hurgronje who stated a preference for a more empirically based law, resembling Ehrlich’s concept of ‘living law,’ in which local customary practices stood central and not ‘sharia’ (e.g. Jaspan 1965; Holleman 1981; Laffan 2001; Feener 2011). Snouck’s idea about the centrality of customary law was further developed into the reception theory: which holds that Islamic legal provisions only applied to the local population of the Netherlands Indies if they had become part of the adat (received) of the local community they belonged to. They considered that adat law was at the centre of the legal consciousness of the Indonesian – not Islamic law.

This Snouck-Berg dichotomy regarding the position of Islam and adat, has been taught as a matter of fact – also in Leiden. However, close reading of van den Berg’s work, especially the article ‘De afwijkingen van het Mohammedaansche familie- en erfrecht op Java en Madoera’ (the anomalies within Muhammedan family and inheritance law on Java and Madura), will reveal that Snouck’s predecessor was well-aware of the discrepancies between the ‘abstract’ framework of Islamic law and actual adat practices in the Netherlands Indies and that he did not support full application of Islamic law for Muslims in Indonesia at all.

According to Van den Berg the application of Islamic law to Indonesians was limited by two other legal traditions. In his article De Afwijkingen van den Berg states that the population of the Netherlands Indies were first and foremost subject to Dutch regulations that applied to them, and that those regulations had primacy over Islamic law. In 1873 the Criminal Code for the Indonesian population had come into force, and van den Berg has never questioned the applicability of the Dutch criminal code to Indonesian Muslims. Van den Berg also had advised the government to introduce Dutch procedural law in the Islamic courts – a measure Snouck thought was unthinkable and would be strongly rejected by the Islamic judges. But no large protests were recorded, the introduction of Dutch procedural law happened rather smoothly.

Second, Van den Berg also believed that the application of Islamic law to Indonesian Muslims was limited by adat. Van den Berg’s view becomes evident in his interpretation of Article 75 of S 1855/2 (Regeringsreglement van Nederlandsch-Indië; RR), which stipulated that the  Islamic court’s jurisdiction consisted of ‘those civil disputes, which according to their religious laws or customs should be decided by their priests (Islamic judges)’. According to Van den Berg, ‘Dutch law-makers did not sanction doctrinal Islamic law, but Muhammedan law, so far as it has penetrated into the legal consciousness of the population, […].’  Adat may have legal consequences in practice: ‘[…] therefore the judge should consider the mentioned afwijkingen (remember that Van den Berg called adat practices afwijkingen or anomalies to Islamic law), in so far as they indeed are part of gewoonterecht (customary law), and not the result of individual arbitrariness or ignorance’ (Van den Berg 1892: 454).

Hence, contrary to what is generally taught in classes about colonial legal history of the Netherlands Indies, Van den Berg did not at all endorse a full application of Islamic law, as he fully supported the primacy of colonial law as well as the applicability of adat in legal matters pertaining to the Indonesian population. While their starting points were diametrically opposed, the implications of Van den Berg’s and Snouck Hurgronje’s positionings are much less profound than experts (e.g. Roff 2010, Dijk 2010) so far have suggested.

Moreover, Van den Berg introduced the concept of ‘customs and practices that have legal consequences’ (Berg 1892: 455) the same definition Snouck Hurgronje used for ‘his’ adatrecht in the Atjehers in 1893- a year after Berg’s article was published. Even earlier, in 1882, long before Snouck Hurgronje set foot in Indonesia (1889), Berg already wrote that ‘adat in this country holds a position which one will not find in other Muslim countries’ (Berg 1882: 12-13). All these clues indicate that we should adjust the ideas that Snouck Hurgronje was the inventor of the concept adatrecht and Van den Berg was a supporter of a full application of Islamic law.


REFERENCE:

[1] More specifically, the advice compiled in Hurgronje, Christiaan Snouck, Emile Gobée, and C. Adriaanse. 1957. Ambtelijke adviezen van C. Snouck Hurgronje, 1889-1936. ‘s-Gravenhage: M. Nijhoff.



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