Reimagining Legal Pluralism in Africa: Balancing Indigenous, State, and Religious Laws, edited by Anthony C. Diala and Christa Rautenbach

Reimagining Legal Pluralism in Africa: Balancing Indigenous, State, and Religious Laws, edited by Anthony C Diala and Christa Rautenbach

Child marriage remains a complex issue within Indonesia’s multicultural legal system. The lack of synchronization among state law, religious law, and customary law creates a significant space for legal contestation, particularly in the practices of marriage dispensation and marital validation (isbat nikah). This study aims to analyze the dynamics of legal contestation among these systems using a normative-empirical legal approach through the examination of legal documents, regulations, and critical legal literature. Employing John Griffiths’ theory of legal pluralism, the study reveals that the Indonesian state tends to adopt a form of weak legal pluralism, recognizing religious and customary laws only to the extent that they do not contradict state law. The primary academic contribution of this study lies in its detailed exploration of how local and religious norms influence judicial decisions regarding dispensation and marital validation—an area that has received limited critical scrutiny in previous studies, which largely focused on formal normative analysis. This research also highlights the inadequacy of uniform national legal policies in responding to the diversity of grassroots social norms. Therefore, it advocates for a reformulation of legal approaches that are more participatory and context-sensitive through inclusive dialogue among state authorities, religious leaders, and customary communities. Such an approach is essential to ensuring the fair and sustainable protection of children’s rights within an adaptive legal pluralism framework that reflects Indonesia’s social realities.

This research delves into the intricate relationship between religious law and state law by examining them through the theoretical frameworks of reception and eclectic theory. Reception theory posits that religious law can exert an influence on state law through processes of adaptation and incorporation, whereby elements of religious law are absorbed and integrated into the legal framework of the state. In contrast, eclectic theory advocates for a consistent and harmonious interaction between the two legal systems, suggesting that they can coexist and complement each other without conflict. The study delves into both historical contexts and contemporary examples to demonstrate how these theories are reflected in various legal frameworks around the world. By providing a comparative analysis, it highlights the diverse ways in which religious and state laws intersect and influence one another across different cultures and legal traditions. The study also addresses significant challenges, such as the conflicts that arise when religious principles clash with state laws, and the efforts made to reconcile these differences in pursuit of legal harmony and social justice. It offers valuable insights into the ongoing evolution of legal theory and practice, emphasizing the importance of accommodating the diverse needs of society while striving for a balance between respecting religious traditions and upholding the rule of law. The findings presented aim to inform future directions in legal scholarship and practice, fostering a deeper understanding of the potential for synergy and conflict between these two fundamental pillars of legal systems.

Background: The legal exception in the study of legal pluralism revealed in this article is not in the context of procedural law. This study highlighted the use of “exception” term. Legal exception is defined as an exception or not included in one carriage of legal reasoning. Through the judge's court decision No. 089/Pdt.G/2010/PA.GM on the Application for Polygyny Permit. Purpose: This paper aimed to explore and analyze the legal exceptions on plurality legal context of Indonesia related to the issue of hypersexuality and gender justice in polygyny case of Sasaknese Muslim Mariage in Lombok West Nusa Tenggara. Methods: A qualitative normative approach is employed; departing from the legal facts spesifically in Giri Menang Religious Court, the analysis and discussion applyed in this paper are the reasoning, paradigm, approach, and flow of socio-legal studies in law and society issue. Results: The findings indicated that the partiality of the judge's reasoning by ignoring the term legal exception in the context of legal pluralism. The judge's decision on the polygamy permit was not based on real legal rationality, but due to the applicant experienced by hyper sexuality. The odd thing of judge's reasoning only considers State Law and Religion, and ignores the Customary Law of Sasak marriage. While the Indonesian marriage law, there is no law that permits a husband to engage in polygamy based on the hypersexuality or other suffers deseases of husband. However, the law allows a husband to be polygamous on the basis of an incurable disease of the wife. Implication: The serious implication of this study espoused the distortion of the existence of customary law due to the strongest hegemony of state and religious law. Therefore various further studies are needed to reveal the relevance of customary law to positive law in Indonesia. Originality: The novelty presented in this article are the response of religious court judges to the existence of legal plurality in Indonesia, namely State Law, Religious Law, and Customary Law. The court decision emphasized that judges obey only for state and religious law, and ignored for the customary law. Even though the legal plurality of Indonesian society is directly protected by the constitution

<p><em>This article departs from the interlegality of marriage laws in Jambi society today, which discusses sumbong marriages. Sumbong marriage itself is a marriage that is legal according to religion, state, and custom. However, the ability to marry sumbong itself is considered valid by carrying out a customary settlement first, which was initially prohibited by customary law. The prohibition on marriage in Indonesia is contained in Article 8 of Law Number 1 of 1974 concerning Marriage and Article 39 of the Compilation of Islamic Law. Departing from this phenomenon, the author tries to examine the writing, which includes the implementation of marriage law in the Jambi community, the legal pluralism of the Jambi community, and the interlegality of customary, religious and state law in the marriage law of the Jambi community. The type of research carried out by the author is field research (Field Research) with qualitative methods. The nature of this research is analytical descriptive research. The approach used by the authors is a sociological empirical approach with interlegality. The author's findings clearly show that legal interactions in this tradition involve interactions between several laws, including religious, state, and customary laws used in sumbong marriage practices. By applying the legal interlegality theory approach, customary law, state law, and religious law become one unit. The concept of interlegality is found in adopting the values contained in the sumbong marriage tradition, whether based on state law, Islamic law, or Jambi customary law. This adoption process is based on the characteristics of the Jambi community's legal identity and its social environment, which is still steeped in customs, and the community also upholds the norms that apply in society and adheres firmly to "adat basandi syarak, syarak basandi kitabullah. "</em></p>

Purpose: Religious (Islamic), state and customary laws in Indonesia offer the same concept with different indicators. Islam offers the aspects of religion, descent, wealth, and beauty as elements to be considered. The state adds the aspect of age as a physical and psychological consideration for couples facing marriage. Customary law accommodates all of them by requiring the requirement of customary social strata in marriage. The praxis dialogue of the three laws above in Sasak tribal society is the object of study in this research. Theoretical Framework: Equality in marriage is a religious teaching, some of which is also constructed in local cultural values. The meeting of religious and cultural values sometimes does not go hand in hand, and gets resistance from the community. Conflict theory, social change, and Islamic methodology are used as basic theories. Method: The research used qualitative descriptive-analytical method, by observing the words, actions, and feelings of the informants in the research. Documentation and interviews were used to find the deepest things object of the research. Results: The study found that the equality required in the Sasak traditional marriage system aims to maintain descendants well and intact. However, the social strata requirements imposed in Sasak society have an impact on injustice on the female side and ignore the value of equality between humans. Marriage with mandatory equal conditions in social strata is widely ignored and resisted by the community. Social changes that cover the education system, economy, politics, communication, culture, technology, and other elements of novelty are a trigger for dialogue and resistance to the mandatory requirement of equality in social strata in Sasak traditional marriage. Religion and the state safeguard the legal needs of the community based on equality, justice and partiality. Conclusions: In principle, both religious law (Islam), customary law and state law aims to protect citizens and help them to achieve the goals of marriage. However, the meeting of the local values of a particular culture with the universal values of religion and the state is often not in harmony. Local culture values are still restrained by the old culture (feudalism), while religious and state laws tend to be open. With the opening of access to education, the mindset of the community has changed, which is also in line with the accelerated development program in Lombok.

W ITH THE EXPANSION OF AMERICAN political and economic interests in the Near East, particularly since World War II, the law of the states in that area has acquired practical significance for the American lawyer. Questions of local law are involved in oil concessions, as well as other contracts concluded by American firms with Near Eastern governments and private interests. Moreover, the increasing number of Americans in the states of the Near East has brought with it many other practical legal problems ranging from marriage and divorce to such questions as the law applicable to claims arising from injuries sustained by Americans while in the employ of American firms in the area. This article will attempt to present a brief sketch of the background and development of the law of the states of the Near East with special emphasis on the law of the Arab states, to serve as a basis for the understanding and evaluation of the present-day law of these states. This law is an intricate fabric composed of parts whose origin, history, and philosophical background is entirely dissimilar. Its most important component parts are religious Islamic law and Western, mostly continental European, law. In most of the Moslem countries of the Near East the application of Islamic law is today limited to those fields which are most closely tied to religion: personal status and family relationships, such as marriage and divorce, rights and duties of parents and children, and matters of inheritance. Western law intruded first in fields where the hold of Islamic law was weakest, such as criminal law and commercial law, and then gradually spread to other fields. In order to understand the forces underlying the Near Eastern law of today, it is thus necessary to analyze briefly the various component parts which make up this law and to trace briefly the development of Islamic law and jurisprudence as well as the process of Westernization and its results.

This article explores the position of customary law before state law and Catholic religious law regarding marriage in Mangggarai, Flores, Indonesia. This study applied a critical analytic approach. This study found that the legal position of Manggarai adat concerning marriage is weaker and tends to be marginalized. It happened because state law explicitly Law No. 1 of 1974 concerning Marriage merely accepting the legality of marriage based on religious law and not customary law. Meanwhile, religious law, in this case, Catholicism, does not provide space for customary law in matters of marital legality. As a result, many married couples who have been bound their marriage according to customary law experienced injustice as their marriage was considered illegitimate according to religious and state law. However, this research found many positive contributions of customary law to the process, legality, and integrity of marriage. Therefore, this study recommends that the Indonesian Marriage Law and Catholic Religious Law need to accommodate customary law in marriage, taking into account human rights and justice principles. Both laws need to be revised so that they can place local customary law in an equal position.

This paper introduces this Special Number. The work of the Project Group Legal Pluralism at the Max Planck Institute for Social Anthropology in Halle aims to continue the rapid expansion of recent decades of studies of legal pluralism. The recently much discussed phenomenon of globalisation has provoked a wide variety of local responses. Encounters are occurring between state laws, transnational laws, customary laws and religious laws, all of which are liable as a result to be transformed by processes of adaptation, appropriation and vulgarisation. This may lead to increasing pluralisation of laws, but can also in some cases produce homogenisation, or de-pluralisation.The notion of ‘law’ should not be limited to state, international and transnational law, but should be used to refer to all those objectified cognitive and normative conceptions for which validity for a certain social formation is authoritatively asserted. Law becomes manifest in many forms, and is comprised of a variety of social phenomena. Constellations of legal pluralism may include legal systems, unnamed laws and religious laws. Within such a constellation elements of one legal order may change in various ways under the influence of another. Co-existing bodies of law may cover different geographical and political spaces, and longer temporal periods than are formally acknowledged. Inter-system demarcations also vary in complex ways in their form and in the uses to which social actors put them. Legal orders (and not only state laws) recognise or do not recognise other orders in varying ways, these constructions having potentially some influence on social actors, the nature and extent of which are empirical questions in each case.The emergence, maintenance and change of constellations of legal pluralism are thus the result of dynamic processes. Such processes are examined in this volume, and the following papers contain illustrations of all these issues.

A secret marriage is considered invalid by the state, therefore, children born from this marriage are considered as children born out of wedlock. This is different from the religious perspective. This opinion is based on article 43 paragraph (1) of the Marriage Law which states that "Children born out of wedlock may only have a civil relationship with their mother and their mother's family. Therefore, a secret marriage will annul the rights of the wife and children. However, there are quite a few implementations of marriage in regions where the implementation of marriage is only based on religious law and customary law, without involving the Marriage Registrar so that this marriage is considered a secret marriage which often causes losses to the wife and children born. The lack of guarantees of civil rights as a result of a secret marriage results in the child not getting citizenship status, and the child only has a civil relationship with the mother and her mother's family, which in turn bears the burden of child maintenance costs.Married couples must comply with religious and state laws. In Islamic law, marriage must fulfill the pillars of marriage which include prospective husband, prospective wife, marriage guardian, two witnesses, ijab and kabul, while state law requires that the validity of the marriage must be registered in accordance with applicable laws. However, there are many implementations of marriage in regions where the implementation of marriage is only based on religious and customary laws, without involving Marriage Registrars so that this marriage is considered a secret marriage which often causes losses to the wife and the children born. The lack of guarantees of civil rights as a result of a secret marriage results in the child not getting citizenship status, and the child only has a civil relationship with the mother and her mother's family, which in turn bears the burden of child maintenance costs.

This chapter analyzes the interplay between religious rules and State law from the angle of legal pluralism, discussing how State recognition of religious rules can affect the degree of legal diversity that is available to citizens. This issue is approached through an examination of religious law, that is rules that are considered to be different from secular rules, particularly in those legal traditions that have been more strongly influenced by the Christian religion. As the latter rules are frequently identified with State law, religious laws are regarded as a challenge to the State monopoly of law. First, the chapter defines what is meant by religious rules; second, it examines the tensions between religious and secular rules; and finally it discusses the different strategies and tools implemented and used by States to govern these tensions.

Bahá’í law differentiates between a secular and a sacred legal sphere, intertwining both by positing a religious duty for its adherents to abide by secular (state) law. In Germany, it encounters a secular legal framework that aims at something similar – creating an equilibrium between state law and religious law by establishing the principle of the division of State and Religion, while at the same time facilitating religious freedom; it provides a secular justification for the recognition of religious law. With this, both orders provide mechanisms ensuring that state law and religious law are able to enforce their own claim of validity, while at the same time avoiding conflicts between the respective legal orders. The article argues that this unique interaction between Bahá’í law and the German constitutional law framework impacted both legal orders. For German law, on the one hand, it proved to be crucial for the development and opening of this legal field – whose original purpose was the regulation of the relationship between the state and the (two) Christian churches – for other religious traditions. The interaction with state law has impacted the Bahá’í Community of Germany, on the other hand, by catalyzing a number of developments that in other comparative law contexts have been dubbed “constitutionalization” effects.

In the Indonesian constitution, rule of law is an acknowledged instrument to realize justice and social welfare. Common in many post-colonial countries, this instrument often manifests as legal pluralism, that is the co-existence of at least three legal systems: state (or ‘national’ in Indonesian parlance); religious, and customary (adat in Indonesian language). This paper examined the first two systems, state and religious laws, especially in their implementation as practiced by the Indonesian society. Using empirical legal methods, the factors which influenced the preference of Muslims to use state or religious laws in Indonesia were examined. Key terminologies, such as ‘state law’, ‘religious law’, and ‘Muslim society’, were elaborated. It was found that several factors were influential, namely legal culture, economic condition, social values, fiqh conservatism, and judge insight.

Married couples must meet religious and state law. In Islamic law, marriages must be fulfilled, the harmony of the marriage, the bride and groom, prospective guardians, marriage, two people, consent and Kabul, while state law, needs to be added validity, marriage, must be in accordance with applicable law. However, not a few marriages in areas that carry out their marriages are only based on religious law and customary law, without involving Marriage Registrar to improve this marriage by considering siri marriages that increase returns to desired husbands and children. Civil rights are not guaranteed at the time of marriage to a siri marriage because the child will not obtain citizenship status, and the child only has a civil relationship with the mother and related family, which basically requires the cost of child care.

In Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India, Gopika Solanki provides a convincing defence of the Indian policy of legal pluralism for governing marriage and divorce among Hindus and Muslims. The author contends that, by ‘‘split[ing] its adjudicative authority with social actors and organizations in the regulation of marriage and divorce among a sector of religious and caste group and the other actors’’ (p. 10), the Indian state simultaneously avoids leaning towards legal centralism and an essentialist version of legal pluralism. Solanki supports this claim with reference to state laws, societal laws, legal actors, and their interactions in formal and informal legal arenas. This ethnographically rich text begins by describing and explaining, a model of ‘shared adjudication’ (p. 10). The author contends that this model is unique to India. Founded on values of both state and customary law, this model focuses on state-society interactions and their relation to resolving conflicts in family, marriage and divorce. Although the state ‘‘does not relinquish its authority to govern the family’’ (p. 11), it shares the adjudicative authority with societal actors and institutions in order to avoid legal centralism. Similarly, even though the state recognizes both religious and customary laws—and provides an option to its citizen to opt out of religious laws—it avoids complete legal pluralism by expressively not establishing religious and customary courts and by enacting secular law to govern interreligious marriages. In Chapter 2, Solanki explains, how the dual functions of the shared adjudication model overcomes the classic state versus society/legal versus illegal dualism by opening up the possibility to make, unmake, or reform the fixed construction of religious memberships in diverse legal sites.