ABSTRACT
In the previous chapter, I examined broad constructions of female legal subjectivity in state law. In this chapter, I wish to further probe the consequences of these constructions, by investigating legal definitions of marital property. Divorce has repercussions for property, which in Indonesia may be guided by customary practices (adat), religious law and state regulations. However, for many Indonesians who divorced there may have been very little, or no, tangible property at stake. Thus, the purposes of this chapter are three-fold. First, I will expand the definition of property rights to encompass both rights in objects and access to ‘cultural’ or ‘social’ capital. Second, I will establish how marital property is understood and transferred in adat, Islamic and state legal systems.1 At the same time, using my expanded definition of property, I will analyse how the category of gender operates in the disposal of marital property in these different legal systems, seeking points of contrast and historical continuity. In doing so, I am guided by the themes of the earlier chapter, in which I sought to uncover how states, as well as other structures of authority, may attempt to manipulate and use gender relations to consolidate power. This analysis provides essential context for the remainder of the book which analyses divorce in practice. Further, by reexamining the legal and ethnographic record, I have been able to provide a new interpretation of the relationship of gender to property access in divorce in Indonesia. Bearing the above aims in mind, there are three important points that I wish
to stress before going any further. First, this chapter is not a history of the concept of property in Indonesia, a country acknowledged to have a highly pluralist legal culture. Nor does the book as a whole claim to provide a comprehensive study of women’s access to property; a topic which in itself would be worthy of a separate study. However, because concepts such as maintenance and compensation are central to Islamic understandings of divorce, and were incorporated to some degree in the Marriage Law, it is very important that these concepts are introduced before I analyse the case studies of divorce in subsequent chapters. Without this context, discussions of women’s and men’s divorce strategies are meaningless. Certainly, a detailed, Indonesia-specific study of Islamic and customary (adat) understandings of
property would be extremely illuminating (and would also require access to Dutch and Javanese language sources). But because this is beyond the scope of this book, I am attempting instead to develop some more overarching, theoretical concepts of the nexus between gender and property. Thus, although Indonesia forms the backdrop to my theoretical discussions here, I conceptualize gender and property in broader, more multi-disciplinary terms. Second, as detailed in the Introduction, my research is focused on formal,
court-based negotiations of divorce. I am concerned here specifically with codified, legal definitions of property, as well as customary and Islamic definitions that inform the legal code and actions of the court. Consequently, in explaining customary and Islamic conceptualizations of property in this chapter, I draw upon texts that were used in the legal education system and subsequently in courts. For example, the 1930s work on adat law by Dutch colonial scholar Barend Ter Haar could not possibly be presumed to be free of error, or to definitively encompass the complexity and fluidity of the various forms of adat across the Indonesian archipelago. It is, however, a text used to teach adat law in Indonesian law faculties, reflecting the challenges associated with codifying custom for formal legal systems. The concepts of property explained in this chapter therefore encompass some of the concepts used in the court system, but cannot explain all forms and understandings of property in operation in Indonesia. Third, I note that while communally held rights in land (hak ulayat, or
usufruct rights) are common in many parts of Indonesia, codification of property rights and court-mediated property disputes have led to a trend in the individualization of property rights, at least in the formal legal system in Indonesia. Moreover, I am focusing specifically on property relations in marriage (which includes rights to maintenance and financial compensation) and intangible property rights (which includes cultural capital, and rights in other persons). Therefore, I do not discuss the very specific issue of communally held land rights, and how these might be affected by divorce. Essentially, my analysis attempts to demonstrate how property relations
may reveal gender relations, and what this signifies for the creation of state power. I apply this framework to the case of Indonesia, but have developed it as a broad theoretical structure which could be tested in other cultural and historical contexts. I address the issue of the links between property relations, gender relations and state power in four parts. In the first section, I critique existing studies of property, noting the tendency to define property monolithically (in terms of rights in objects) without sufficient attention to the operation of gender. From this critique, I will posit an alternative definition of property which draws upon Pierre Bourdieu’s notion of ‘cultural capital’. I apply this definition to my analysis of property rights in the remaining sections of the chapter. Sections two and three address Javanese adat and Islamic conceptualizations of property. To analyse these two legal systems I use a range of sources. I investigate adat as it was defined by Dutch colonial
scholars such as Barend Ter Haar in the 1930s, which influenced the work of anthropologists Hildred Geertz and Robert Jay in the 1950s and 1960s, followed by the studies of the 1970s and 1980s by Indonesian anthropologist Koentjaraningrat and lawyer Hilman Hadikusuma. I look at Islam through the work of an Indonesian Islamic legal scholar, and as it was defined by the state in the 1991 Compilation of Islamic Laws. As both Islamic and adat discourses were incorporated to varying degrees in New Order law, this analysis informs the final section of the chapter which interrogates marital property rights in state laws. Here, I examine both colonial and New Order laws, including the Civil Code, the Marriage Law UU 1/1974, the Implementing Regulations PP 9/1975, and Government Regulations on Civil Servants’ Marriage and Divorce PP 10/1983 and PP 45/1990. In doing so, I am interested in uncovering continuities in state constructions of gender and its relationship to property. Throughout the chapter, following anthropologist Ann Whitehead (see
discussion below), I assume that property relations reflect social and therefore gender relations.2 Thus, I understand women’s access to property (in the broad sense in which I will define it below) to be a crucial indicator of the locations of power within any given society. At this point, my analysis is focused exclusively on the constructions of gender and property rights in law. I reserve my discussions of the use of law by litigants, lawyers and judges, and the success or otherwise of the gender ideologies contained within law, for Chapters 3 to 6.
