Colonial Law and the Genesis of the Indonesian State

It should be obvious that new states owe a great deal to colonial precedent, for even the most shattering revolutions, very rare among new states, cannot wipe out the past.Yet, as Harry Benda made us see over twenty years ago in his debate with Herbert Feith, it is easy to take seriously the present's claim to exist in the present only, unique and devoid of debt to a despicable and embarrassing history.Benda himself and more recently Heather Sutherland and Ben Anderson have illuminated the unbroken chain of evolution that runs from colony to independent state by focusing on institutional continuity. 1 My objective in this article is to build on their work, using legal history to trace significant features that were sewn into the fabric of the colonial state and have yet to unravel.Law is an especially rich lode for this kind of mining, because it records (literally) the structure of the state and reflects (virtually) the distribution of political, social, and economic advantages.In modern states generally law and legal process are an essential ingredient of the (Gramscian) hegemony that defines and justifies relationships of ruler and subject.How large an ingredient naturally varies from state to state, depending on local culture, ideology, political structure, and much else.But in whatever measure, as law and legal institutions abstractly represent a configuration of power relationships, masking it with a cover of legitimate authority, they bear much significance beyond themselves.It is this significance, more than the law itself, that needs to be read.Only four topics will be dealt with here: plural legal and judicial organi zation in the colony; adat law policy; private legal roles; and the transmission of colonial legal tradition into the independent state.The raw argument is that colonial law, which established the genetic pattern of the Indonesian state, was intended primarily to make exploitation efficient.Plural law, plurally administered, was predicated on the assignment of quite different functions and prerogatives to, above all, the Dutch and Indonesian communities.The institutions developed to administer the Indonesian side of colonial society carried over into independence, bearing with them instruments of repression no less useful to the later than the earlier regimes. PluralismNothing needs to be said here about precolonial law, except that the Dutch changed its conditions, less by imposing new law than by imposing new political 1 1.