Incommensurability and mechanisms for providing legal certainty
In many parts of the world different types of law co-exist, especially in former colonial states such as Indonesia. Of these types, state law is only one. Other legal orders may contain full-fledged sets of regulations and procedures or may be less explicit or differentiated.
Yet other sets of regulations that compete with state law (e.g., secular or religious transnational law) may be more encompassing. Sometimes the scope of a set of regulations is confined to specific issues, such as the regulations of the International Labour Organization or other international organisations. This means that in certain realms of social and economic life and for certain purposes, people have to operate in constellations of legal pluralism. More often than not, the relevant alternative regulations are incommensurable. Incommensurability is by itself a significant source of uncertainty. In practice, if not according to state law, it is often unclear which of the alternatives is applicable and how people operate in this context of legal pluralism.In this essay, I want to point at an additional problem that generates uncertainty. Different legal orders may have different ways ofguaranteeing (degrees of) certainty. Today, most debates about legal certainty focus entirely on the state and its laws. The idea of rule of law is founded on clear regulations for law-making, an administration that observes the law, an independent judiciary, and a system of documents and registration. Together these regulations are supposed to constitute validity, coherence, and clarity for the interpretation of its content. They are also supposed to constitute certainty in the application of laws and, in general, trust in the law and the state. But there are other context-specific arrangements that may generate more certainty than a state can offer.
Many local laws, referred to as adat or adat law in Indonesia, have mechanisms to ensure legal certainty.2 These have been called “supported observance” (gesteunde naleving) by Van Vollenhoven (1931, 251) and “preventive law care” (preventieve rechtszorg) by Logemann.3 For important transactions, such as land transactions, witnesses attend to attest that the transaction is properly done according to the local rules.
Often these witnesses have a special status, either because they are the owners of adjacent land plots or because they are authorities. Van Vollenhoven (1931, 295, 297ff.) referred to this type ofwitnesses as “intentional witnesses,” as opposed to “accidental witnesses” (i.e., persons who accidentally happen to be present at a transaction). For example, the Minangkabau of West Sumatra require the official representative of a matrilineage (panghulu) or sub-lineage (mamak kepala waris) to attend a land transfer of (members of) their kin group. In addition, the representatives or owners of the adjacent plots of land also have to be present. The adat officials have the authoritative knowledge of adat and of their lineage's land. The presence of owners of adjacent plots ensures that the boundaries are established and confirmed. Together, these witnesses testify that the land belongs to the person or kin group that want(s) to transfer it, that the recipient is entitled to receive the land, and that all adat rules have been followed. Attendance of these intentional witnesses is a prerequisite to making the transaction valid. Logemann (1924) discusses many examples of intentional witnesses and supported observance from different parts of the archipelago. These oral methods of creating a high degree of certainty serve to prevent future conflict. Scholars studying adat in the first half of the twentieth century regarded these mechanisms as a major reason for why there were relatively few full-fledged conflicts in the region.With the expansion of the plantation economy, the colonial government became increasingly uncomfortable with these oral modes of land tenure. They preferred a system based on registers because that was better suited to guaranteeing the legal certainty needed for the plantations. On Java, this policy proved successful and was used to register a large amount of land. But in other areas within the archipelago, the registers were regarded with much suspicion.
If anything, these registers became a symbol, if not an outright source, of uncertainty and insecurity. This had much to do with problems of incommensurability entailed in the recognition process of adat land rights.The first problem was that the Dutch did not recognise all local land rights but only those that resembled Dutch ownership. They recognised uncultivated communal land but in an ambiguous way. The land became subject to the sovereign right of the colonial government, which was interpreted as the government's right to declare that this land be used for economic development. This policy was laid down in the Agrarian Decree (Agrarisch Besluit) of 1870 with the so-called domain declarations, specified in the Domain Declarations for each region. On that basis, the government began to expropriate large tracts of uncultivated land for the plantation economy. Registered land titles for these tracts were allocated to European planters. These expropriations created an enormous sense of insecurity among the local populations, who were confronted with what they regarded as illegal dispossession of their communal village or family land. In their understanding, they held this uncultivated land in reserve for future generations. Because of the radically different views about the character of communal rights, the registers came to stand as a symbol of the uncertainty and insecurity of adat land titles. Secondly, in as far as the registers did allow for the registration of adat land titles, they did not capture the full complexities of these local land rights, pressed as they were into the moulds of Dutch property rights. From the outset, most Minangkabau distrusted the registration system of the colonial government. Apart from some land in towns for colonial administrative buildings, schools, etc., hardly any land was registered. Where they could, people stuck to their local ways of ensuring legal certainty in land issues.
But the colonial government also negatively affected these local ways.
The Dutch kept tinkering with local village governance. They did not want to deal with the multi-headed village governments in which all lineage heads (or clan heads) collectively formed the highest authority. They limited the number of recognised lineage heads, installed village heads, and generally kept reforming village governments. The current hybrid system of village governance includes features of state and adat law. It has a long history of successive half-hearted attempts to bring it more in line with the colonial notions of governance. This did have a negative impact on local mechanisms of legal certainty. It offered malicious lineage heads more leeway to cheat their lineage members and reduced the internal control mechanisms on these adat officials. But though the local mechanisms of guaranteeing certainty were far from perfect, they were more flexible than the state registration system. Individuals could seek redress for mistakes more readily than in the more rigid state registration system. Most deemed these local methods better than the alternatives.After Independence, the Indonesian government continued to ambivalently recognise adat land rights and the tradition of successive changes in village governments. They were therefore met with the same suspicion and resistance to registration. In the 1970s, we observed that only persons who wanted to secretly transfer land without ‘interference’ from the intentional witnesses would register plots of land. This would invariably lead to serious conflicts that ended up in court. But here parties would be confronted by yet another source of insecurity, besides the corruption of the judiciary. The way courts dealt with evidence was strikingly different from the evidence evaluation methods used by adat authorities. Because of their procedures, courts unwittingly developed a different interpretation of Minangkabau adat from the adat that was used in villages (Benda-Beckmann 1984, 65-98).
Even today, resistance to registration continues.
Now, a major reason for resistance is a corrupt and incapable state administration. This results in registers containing many mistakes and irregularities. Since the judiciary is considered corrupt and incapable, people have little chance to gain redress from an irregular registration. Even though most Minangkabau today would in principle favour a well-functioning registration system, their oral ways offer a preferred backup option so long as they distrust the government. They do so even though today adat authorities with a deep understanding of the local situation are rather rare. Extreme centralism under Suharto seriously undermined interest in village affairs, because most relevant decisions were made at higher administrative and political levels. This left deep marks on adat authority and many positions fell vacant. However, the decentralisation policies that set in with Reformasi rekindled interest in local government and especially in communal land. In its wake, many vacancies were filled. But these new panghulu often live in urban centres and not in the village in which they occupy their adat position. They are often elected on the basis of their higher education, good position, and experience with the state administration, rather than for their knowledge of local adat and land relations. The more reliable and comprehensive knowledge about land relations lies in the hands of elderly women who have lived their whole lives in the village. But these women do not possess the authoritative knowledge that is required. It is often in secret consultations with such elderly villagers that a panghulu acquires his knowledge of the local situation. But this knowledge would be of little avail if the panghulu would not also know his way in the state administration.What does this example tell us about uncertainty in land issues? In the first place, the introduction of a legal system without consideration for what it might mean for existing entitlements has itself generated much legal uncertainty.
After Independence, the Indonesian government has done little to reduce that uncertainty. To different degrees, it continued its ambivalent recognition of adat land titles. More importantly, legal, semi-legal, and outright illegal expropriations thrived during Suharto's Orde Baru. To this end, officials and politicians close to Suharto manipulated the very ambivalences and deficiencies of a state legal system. They made extensive use of their clientelist networks if not of outright corruption within the state system. This resembles what Chabal and Daloz (1999, 141) described as ‘the political instrumentalization of disorder' for the African contexts. There, high-level politicians and officials play out the registers of law, corruption, and development to illegally capture resources to generate legitimacy within their clientelist networks. Such persons were masters in simultaneously playing out the available legal registers, the register of political and clientelist allegiance, and the register of corruption. This allowed them to reframe local land titles to their advantage, often with the help of corrupt adat authorities. The uncertainty due to incommensurable legal systems of land tenure and adat government is enhanced by a state administration that is seen as corrupt and incompetent. Local people rely more on local oral mechanisms for supporting legal certainty in land issues, despite the fact that these mechanisms have weakened substantially. The paradox is that many of the current panghulu have at one stage in their life worked for the state as civil servants or even in the armed forces. In their capacity as state officials, they are as distrusted as other state officials. However, by an act of “kinning the state” (Thelen, Thiemann, and Roth 2014), in another capacity, these authorities are seen as—more or less—trusted relatives. And indeed, since Reformasi, many have been instrumental in regaining previously expropriated land.Similar problems of conflicting legal orders are known throughout the world, though the extent to which this is possible varies a great deal. In these legal orders, powerful actors manage to negotiate the various registers to obtain access to land at the expense of less powerful and less knowledgeable actors. However, even within Indonesia, there is much variation, for not all regions have such developed adat systems as the Minangkabau. Additionally, not all regions have such well-educated people at their disposal who are well-entrenched in the economy and in urban society. They do not have access to people who are capable of dealing with the contradictions of competing legal systems. In the mineral-rich regions of Kalimantan and Papua, local population groups have to fight powerful national and transnational companies with the state officials that stand in their legal or illegal pay. Besides, they often have to compete with migrants from different parts of Indonesia.4 Their local mechanisms of legal certainty are also often less differentiated and less elaborated than in West Sumatra. This makes for a dangerous mix that is prone to violent outbursts, in which claiming adat land titles is much more difficult. In these regions, legal uncertainty is many times higher than in the relatively homogenous and resource-poor West Sumatra. At the instigation of AMAN (Aliansi Masyarakat Adat Nasional), some have begun to reframe their claims concerning indigenous peoples in terms of international law. This has certainly provided them with a higher profile by which they are heard more than before. But the attempts to translate the concept of international law into a conceptual framework derived from Van Vollenhoven and the Adat Law School have added another element of incommensurability and ambiguity to the already complex legal constellation in Indonesian land rights.