Competition and interaction between state law and customary law in the court room: A study of inheritance cases in Indonesia

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Abstract

This paper aims to explain the competition between various legal systems in a district of Indonesia as manifested in courtroom hearings. In lawsuits concerning inheritance women deny the applicability of the whole or a part of the substance of Batak customary law, according to which a woman is not an inheritor, and seek protection from state institutions. On the other side their male opponents seek to insist on the application of customary law. However, for women the state legal institutions are unfortunately almost unreachable. As a result of the corruption of bureaucracy during the past 30 years, the route is very tiring and expensive. Women who take their cases to state courts fall into two categories. Older women and widows are driven to come as a result of long suffering from domestic violence. Younger women come out of choice: as agents of social change they brave the risk of high social loss to claim inheritance rights under state law. I find that nine out of ten cases decided in the Supreme Court are won by women. This success for women is a consequence of earlier judge-made law. The earliest decision declaring Batak women to have inheritance rights equal to those of men was given in 1961, and there have been many subsequent Supreme Court decisions confirming women’s rights as inheritors, displaying an interaction between national legal institutions and local customary law. However, women have experienced these dispute settlement processes painfully. Cases can last 25 to 30 years. In one case studied the woman (claiming a share of her deceased father’s property) died during the process and the litigation was continued by her daughter. Success for women in the state courtroom does not mean that gender justice is fully effective. Women’s daily experiences still include much conflict and disputing over inheritance, and women, especially poor widows, continue to suffer from discrimination in this field.

Original languageEnglish
Pages (from-to)91-112
Number of pages22
JournalJournal of Legal Pluralism and Unofficial Law
Volume36
Issue number49
DOIs
Publication statusPublished - 1 Jan 2004

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