Towards an epistemological decolonization of legal pluralism

This paper ascertains the relevance of decolonial scholar Mahmood Mamdani’s point concerning the continuing influence of colonial constructions of permanent minorities in postcolonial states for analyses of the socio-political dimensions of culture- and religion-based legal pluralism in Indonesia. Authoritarian centralism paired to extractivist state policies motivated Indonesian activists since the mid-1980s to revitalise the colonial constructs of distinct native customary law communities and their respective commons. The collapse of the Suharto regime in 1998 and the ensuing decentralisation and democratisation process supported by the Breton Woods institutions, finally provided opportunity to successfully push for greater legal accommodation of local customary norms and institutions that has run parallel to the rapidly increasing legal accommodation of shari’a law, giving boost to the longstanding opposition between customary and Islamic law in Indonesia with roots in the colonial past. As the plethora of reported human and national citizen rights infringements in connection with the legal accommodation of both customary and Islamic law raises doubt about the democratising potential of Indonesian legal pluralism, it is legitimate to inquire more deeply into the epistemological foundations of its construction. These can be traced back to the organicist ideas of Savigny’s German Historicist School of Jurisprudence as translated into Dutch colonial legal discourse, policy and customary law research. Because the ensuing colonial legal pluralism was linked to policies of indirect rule geared towards the political fragmentation and economic disempowerment of indigenous opposition, Indonesian legal thinkers after independence sought to decolonise Indonesian customary law research and its opposition to Islamic law–with limited success.