Integration of Islamic Law and Customary Law on the Inheritance

System of Suku Anak Dalam Muslim Converts

Dian Mustika

, Rahmi Hidayati

and Sulhani

Department of Islamic Family Law, Sulthan Thaha Saifuddin State Islamic

University (UIN) Jambi, Jl.Lintas Jambi-Ma. Bulian KM. 16 Simp. Sei. Duren, Muaro Jambi, Jambi

Department of Comparative Schools of Islamic Jurisprudence, Sulthan Thaha Saifuddin State Islamic

University (UIN) Jambi, Jl.Lintas Jambi-Ma. Bulian KM. 16 Simp. Sei. Duren, Muaro Jambi, Jambi

Keywords: Integration, inheritance law, Suku Anak Dalam, Islamic law, customary law

Abstract: Suku Anak Dalam is one of the minority groups in Jambi, Indonesia, who practices animism and

dynamism inherited from their ancestors. Since the last few decades, some groups that have settled convert

to Islam. However, in the practice of religious rituals, there is a clash between Islamic law and

customary law including in the inheritance subject. This study aims to reveal the implementation of

inheritance law in the Suku Anak Dalam Muslim converts community and analyze the intersection between

Islamic law and customary law in the regulation. This research is descriptive-analytical by using a

sociological approach, while the data was collected through observation, interview, and documentation. The

study shows that the integration model is still dominated by customary law as seen in the division time of

inheritance, the causes of inheritance and the heirs,

and the respective heirs. The distribution of inheritance

is decided through a customary meeting attended by Tumenggung and Tuo Tengganai or in some cases just

based on the agreement among the heirs. In reality, the implementation of this inheritance system is

considered fair and fully accepted by the heirs, so there is no conflict between them).

1 INTRODUCTION

The inheritance law is an important element in the

society, especially in customary society because its

implications are directly related to the social

system's endowment, either at the level of the family

and relatives or the society in general, even

according to Syarifuddin, of all applicable laws in

society, the law of marriage and inheritance defines

and reflects the family system as well as part of civil

law (Syarifuddin, 1999). As that important this

legacy institution, almost all customary societies

have their own distinctive system of inheritance

which is different from one another (Ball, 1996;

Tarigan, 2014).

However, the plurality of inheritance law in

Indonesia often causes problems in its application. It

is undeniable that the dualism of the inheritance

division law between customary law and Islamic

inheritance law becomes its dilemma because this

issue is a social identity considered very important

and complicated. The interaction between Islamic

and customary law in aspects of inheritance is

something unavoided.

According to Lukito, the mixture of various

values derived from the customary and Islamic law

of inheritance is because some provisions in Islamic

inheritance law accommodate the tenets of

customary law (Lukito, 2008).

Historically, the interaction between Islamic law

and customary law in Indonesia has begun since the

Dutch colonial era. The application of Islamic law at

this time led to various intersection theories, namely;

First, the theory of Receptio in Complexu (the

acceptance of Islamic law comprehensively) was

introduced by C.F. Winter and Salomon Keyzer then

followed by L.W.C. van Den Berg. Secondly, the

theory of Receptie (the acceptance of Islamic law by

customary law) was proposed by Snouck Hurgronje

and followed by Van Volenhoven. Third, the theory

of Receptio a Contrario (the application of

customary law as long as not contrary to Islamic

law) was raised by Hazairin (Steenbrink, 1993;

Sukiati, 2012; Sulistyarini et al., 2018).

Mustika, D., Hidayati, R. and Sulhani, .

Integration of Islamic Law and Customary Law on the Inheritance System of Suku Anak Dalam Muslim Converts.

DOI: 10.5220/0009921609790986

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 979-986

ISBN: 978-989-758-458-9

979

Starting from those theories, for Muslims in the

field of inheritance, it is very difficult to avoid the

link between customary law and Islam. This is

because in Islam, Muslims are not prohibited from

accommodating the custom as long as it does not

conflict with the main sources of Islamic law,

namely Al Qur`an and hadith (Rosyadi and Ahmad,

2006).

The intersection between Islamic law and

customary law also occurs in the implementation of

inheritance law among Suku Anak Dalam converts.

In practice, this can be seen at three aspects, namely:

the division time of inheritance, the causes of

inheritance and the heirs,

and the respective heirs. In

the time of inheritance division, Suku Anak Dalam

people handle it in 2 (two) ways, namely: sharing

the property before the heir dies, and after the heir

dies. According to customary law, the inheritance

can be applied, either after or before the heir dies

through gift (hibah), and the testament (wasiat) is

carried out after the seventh, fortieth, and hundredth

days from the death, meanwhile, based on Islamic

law, the division of property that is carried out after

the heir dies as the principle of ijbari (imperative)

contained in Islamic inheritance law.

Furthermore, related to the causes of inheritance

and the heirs, for Suku Anak Dalam, the cause of

inheritance are the marital relationship between

husband and wife or vice versa, and the existence of

the family, especially between children and parents.

This practice has similarities to Islamic inheritance

law. However, regarding of the heirs, Suku Anak

Dalam places the child as the primary heirs.

The Integration between Islamic law and

customary law also occurs in the term of respective

heirs. Generally, the decree of male`s part is twice as

much as the female`s, in principle equal to the

decree contains in Islamic law, but there is no clear

portion of the division to each heir, as ruled in

Islamic Inheritance Law. Although this integration

model is more dominated by customary law, the

heirs fully accept and consider that this system is

fair.

If examined, the integration between Islamic law

and customary law in the practice of inheritance

among Suku Anak Dalam people is greatly

influenced by their belief in keeping up to the

customs inherited by the ancestors.

There are many studies which state that the

kinship line adopted by Suku Anak Dalam is

matrilineal (the tracing of descent through the

female line) (Malinowski, 1984). This opinion was

confirmed by Lowie, that a sign of matrilineality;

that they all descend from one common ancestor and

according to him, that Suku Anak Dalam are

ancestors of the Minangkabau who are known for

the matrilineal society (Benda-Beckmann, 2006;

Berta, 2014).

Looking at the rules of Suku Anak Dalam

inheritance, males do not have rights whatsoever to

his matriline`s assets. A male inherits from his

mother`s kin is when he wants to get married and

needs help to pay the bride price. It is usually around

30 pieces of cloths (Berta, 2014).

For Suku Anak Dalam people, custom is not only

tradition and norms, but it is also about the ways

how they organize their lives traditionally. Custom

is used and exists in all social interactions. Despite

the belief, they have faithfully converted to Islam,

but to remain recognized as part of Orang Rimba

community, they have to have Orang Rimba

religion. Unless, they cannot live in the delom

(inside) community. Though Orang Rimba uses the

term agama (religion), its term is actually used to

describe their practices (Berta, 2014). In addition,

their lack of understanding of Islam is also a cause

of the customary and Islamic law mixture.

Some research studies related to the inheritance

systems of some marginalized people in Indonesia

have been studied quite a lot, even until now it still

becomes an interesting issue to discuss, but there

were no specific studies related to Suku Anak Dalam

Muslim converts inheritance systems.

The followings are several studies mentioned

previously Kewarisan Adat Melayu-Siak Dengan

Kewarisan Islam (Integration of Malay-Siak

Customary Inheritance with the Islamic Inheritance),

by Zikri Darussamin which stated that the

integration of Malay-Siak customary inheritance

with the Islamic inheritance occurs in: heirs,

inheritance, and the distribution of inheritance.

Furthermore, several factors supporting the

integration are: custom, kinship system, and

flexibility of Islamic inheritance law (Darussamin,

2012).

The study by Agus Sudaryanto entitled

(Integration of Customary Inheritance Law and

Islamic Inheritance Law in Yogyakarta mentioned

that the integration between Customary and Islamic

inheritance law in Yogyakarta occurred in several

aspects, namely: the causes of inheritance and heir,

legacy time division, the division of the inheritance,

the amount of inheritance and inheritance reasons.

The reasons for the occurrence of integration process

are deliberation, fairness, avoiding conflicts, policy

of parents, tradition, Islamic law, sincerity, self-

contained child and only son (Sudaryanto, 2016).

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980

Then, a study by Asni Zubair et.al, Integrasi

Hukum Islam dan Hukum Adat Dalam Pewarisan

Masyarakat Bugis Bone (Integration of Islamic Law

and Customary Law in Bugis Bone Inheritance)

argues that the integration occurrs in in several

forms, namely: assimilation, syncretic, acculturation,

and legitimacy. Furthermore, integration of Islamic

law and customary law in Bugis Community in

Palakka District because: a. between Islamic law and

customary law have interacted for a long time,

complementary in addressing the legal needs of the

community, b. Islamic law and customary law used

as a reference and a major cornerstone in the

division of the community estate, c. Islamic law and

customary law into the legal awareness of the

public to follow both of these rules, d. between

Islamic law and customary law have a common

vision and goal to bring peace to people's lives

(Zubair et al., 2016).

Hasan Basri and Muhammad Azani in their study

entitled Inheritance Practice of Community Society

in Bantan District, Bengkalis Regency Based on

Islamic Law emphasized that people in Bantan

District misunderstood the principle of balanced

justice which is considered to be contrary to the

sense of justice for the heirs. They understand the

principle of balanced justice should be in the same

sense. Yet, the meaning of the principle is that each

heir of both men and women has equal rights in the

acquisition of inheritance rights (Basri and Azani,

2018).

Based on the understanding and religious

practices of Suku Anak Dalam people, it is

considered necessary to conduct this as an object of

research especially discussing Integration of

Islamic Law and Customary Law on The

Inheritance System of Suku Anak Dalam Muslim

Converts.

2 METHODS

This article is based on the results of the field

research conducted in 2017 using a sociological

approach. This research was conducted in Bungku

Village, Bajubang Subdistrict, Batanghari District,

Jambi Province for four (4) months, since April-

August 2017. In this research, data collection

instruments through observation, depth interview,

and documentation. The informants were the elders

and some Suku Anak Dalam residents, while

additional information was obtained from the

religious leader who spreads Islam among Suku

Anak Dalam people.

3 DISCUSSION AND RESULTS

Suku Anak Dalam is one of four peoples in Jambi

classified as masyarakat terasing (isolated

communities). The other three are Orang

Laut/Bajau; the southernmost populations of the

swidden-farming Talang Mamak. The ambiguous

Talang people sometimes simply termed masyarakat

terasing, a general term for isolated Melayu swidden

farmers who are determined by the government to be

in need assistance (Sager, 2008).

Suku Anak Dalam is also known as Kubu, and

Orang Rimba. The primary referent of the Malay

word Kubu is a defensive stockade or a place of

refuge. In Malay impression, Kubu people prefer to

live in the forest precisely because this has made

them immune to efforts by external authorities (such

as Malay, Dutch, Indonesian) to rule them

(Sandbukt, 1984). According to Sager, the term

Kubu refers to the majority of Islamic villagers’

perceptions of Orang Rimba as using the interior

forests to resist the inclusion of social world and

more Islamic Malay. As other Malay exonyms in the

region (for instance Sakai), the term Kubu has

negative connotations such as: ‘uncivilized’ or not

‘yet developed’ (belum madju), ‘primitive’

(primitif), ‘dirty’ (kotor/jorok), ‘smelly’ (bau),

‘stupid’ (bodoh), ‘yet to acquire a religion’ (belum

punya agama) (Sager, 2008).

Genealogically, Suku Anak Dalam people in

Jambi Province are from three descendants, namely:

first, the descendants from South Sumatra who

mostly live in Batanghari District; secondly, the

descendants of Minangkabau people who in general

live in Bungo District, Tebo District, partly Mersam,

and Batanghari District; and last, the descendants of

indigenous ethnic Jambi people who live in Air

Hitam, Sarolangun District (Mailinar and Nurdin,

2013).

Furthermore, when viewed ecologically, Suku

Anak Dalam people live scattered in three different

regions, namely: (1) the western part of Jambi

Province (around Lintas Timur Sumatra road), (2)

National Park area of Bukit Duabelas, in which they

settle and wander in the lowland forest between

Batanghari and Tembesi River, and (3) the northern

part of Jambi Province, especially in National Park

of Bukit Tigapuluh (the border of Riau and Jambi)

(Takidin, 2014).

Various theories explain the origins of Suku

Anak Dalam, but generally, they can be divided into

two groups. The first theory believes that Suku Anak

Dalam people are the old Malay race as well as

Dayak, Sakai, Nias, Mentawai, Toraja, Sasak,

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981

Papua, and Batak that constituted the first wave

migrating to Sumatera. The second theory comes

from the folklore which states that Suku Anak Dalam

came to an exile area for some reasons. However,

according to Berta, Orang Rimba claimed that they

were native to Sumatra and originated from the

Minangkabau or the Minangkabau from them (Berta,

2014).

Muchlas concluded that Suku Anak Dalam came

from three derivatives namely South Sumatera

descendants of Minangkabau who are in Bungo

Tebo District; most of Mersam District (Batanghari

District); and the descendants of Jambi indigenous

people in Air Hitam area, Sarolangun Regency

(Sagala et al, 2018).

Nowadays, Suku Anak Dalam inhabitants have

converted their beliefs, from animism and dynamism

to Islam, such as Suku Anak Dalam in Nyogan

village, Markanding, Bunut, Nagosari and Mestong

in Muaro Jambi District; in Air Hitam village,

Sarolangun District; as well as in Jebak, Batu

Hampar, Singkawang Baru and Mersam areas of

Batang Hari Regency. However, the transitional

religion that has occurred does not cover the entire

Suku Anak Dalam. The rest Suku Anak Dalam

people in the category of wanderings in several areas

in Jambi Province such as Pauh, Pemenang, Anyut

river, Telisak river, Sikampir, Tanah Garo and

others, still believe in polytheism (Mailinar and

Nurdin, 2013).

According to Soetomo (Soetomo, 1995),

(Mailinar and Nurdin, 2013), the characteristics of

Suku Anak Dalam can be distinguished based on the

categories of wandering, temporary settling, and

settling can be seen as follows:

Table 1: The characteristics of Suku Anak Dalam based on

The Wandering Category

No Kategori Ciri-ciri

1. Melangun/

Wandering

It lasted for 2-4 tahun, as

far as 75 KM.

2. Traditional Leader Temenggung, Depati,

Mangku, Menti, and

Debalang Batin

3. Field Do not farm

4. Residence Do not have a permanent

place to live

5. Group Small group based on

genealogy

6. Livelihood Hunting, gathering,

collecting

7. Social Interaction Limited and closed

8. Wealth Sarong, spears, machetes

9. Belief Anymism, Dynamism,

and polytheism

10 Besale Seen as a sacred

ceremony, maintained and

do not want to be viewed

by the outside

Table 2: The characteristics of Suku Anak Dalam based on

the Temporary Settlement Category.

No Kategori Ciri-ciri

1. Melangun/

Wandering

It lasted for 2-4 bulan, as

far as 25 KM.

2. Traditional Leader Some structures have

been lost

3. Field Start opening fields

4. Residence Settle for a certain time

5. Group Large groups and begin to

join other ethnic groups

6. Livelihood Farming, gardening,

hunting and gathering

7. Social Interaction Open

8. Wealth Houses, gardens, vehicles

9. Belief Anymism, Dynamism,

and some Islam

10 Besale Not sanctified, preserved

and can be viewed by the

outside

Table 3: The characteristics of Suku Anak Dalam based on

the Sedentary Category.

No Kategori Ciri-ciri

1. Melangun/

Wandering

Do not wandering

2. Traditional Leader Some structures have

been lost

3. Field Have rubber and oil palm

plantations

4. Residence Settling in a settlement,

village

5. Group Large groups and begin to

join other ethnic groups

6. Livelihood Farming, gardening,

labor,

7. Social Interaction Open

8. Wealth Houses, gardens, vehicles

9. Belief Islam

10 Besale Not sanctified, preserved

and can be viewed by the

outside

3.1 The Implementation of Inheritance

Law in the Suku Anak Dalam

Muslim Converts Community

In the various activities, Suku Anak Dalam

community is strongly influenced by the applied

legal rules in the form of seloko-seloko (a term; a

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saying becoming a custom rule) which then the

leaders, especially Tumenggung, use it as a life

guideline in making a decision. Seloko also becomes

a guide in speaking and acting in social life. The

examples of Seloko are as following: bak emas

dengan suasa (the difference between expensive and

cheap value), bak tali berpintal tigo (togetherness

into strength), di mano biawak terjun disitu anjing

telulung (where we do wrong, there is the custom

used), di mano bumi dipijak di situ langit dijunjung

(where we are, there is a custom that we uphold, we

adapt), bini sekato laki dan anak sekato bapak (that

in the family matters the role of a man or father is

very prominent) (Tarib, 2012).

In the divison of the inheritance, Suku Anak

Dalam converts are guided by the customary seloko,

'waris bejabat khalifah bejunjung’, meaning that in

distributing it, Suku Anak Dalam must uphold what

has been inherited by the previous caliph or leader,

and the child as the heir must be welcomed. It means

that inheritance is given to the heirs who are entitled,

and the primary heir is the child.

In the time of inheritance divison, it can be done

in 2 (two) ways, namely: sharing the property pre-

deceased and post-deceased of the heirs. It can be

known through an interview with Usman, one of the

elders in Suku Anak Dalam community as follows:

“Pembagian harto waris ko kadang sebelum orang

meninggal, ado jugo yang bagi sesudah meninggal.

Pembagian harto sebelum meninggal, supayo dak

ado perselisihan antaro ahli waris, kerno bagian

masing-masingnyo sudah jelas. Kalau pembagian

warisan sesudah meninggal, biasonyo dilakukan

sesudah 40 hari kematian, diadokan rapat adat yang

dihadiri Tumenggung dan Tuo Tengganai”.

(The divison of inheritance is carried out after 40

days of the death of the heir. According to them, it is

because that division is only carried out after all of

the rights of other people inherent in that property

are fulfilled/settled, including debt and testament

from the heir. The process of sharing inheritance is

accomplished through customary meetings attended

by Tumenggung (a chair of the tribe) and Tuo

Tengganai (the elder of the tribe).

Furthermore, according to Lani, one of Suku

Anak Dalam residents, the division of inheritance to

Suku Anak Dalam community, begins by sorting out

the property carried by the wife and legacy from the

joint search before being handed over or distributed

to family members.

“Harto punyo bini, balik ke bini. Harto laki bini

dibagi samo rato. Kalau ado anak, harto dibagi ke

anak”.

(The wife's assets will be returned to the wife, while

the assets obtained together are shared equally.

However, if they still have children, then the

property falls to the children).

In this context, it shows that Suku Anak Dalam

people have known the separation of legacy, which

is the inherited assets obtained before the marriage,

and joint search assets which are then shared into an

inheritance.

Each portion of the heirs is determined based on

their responsibility. Usually, the provisions of the

division are two to one, namely the part of a male

heir is two times the part of a female heir. Besides,

the division is often carried out by the agreement,

such as if the heir leaves the plantation and the

house as inheritance, they are processed and utilized

together. Nevertheless, regarding its allocation, a

greater portion is given to males, while the houses

are certainly left to the youngest female to take care

of them after their parents pass away.

Despite having embraced Islam, in practice,

Suku

Anak Dalam people do not fully understand the

teachings of Islam itself. In their daily life, Suku

Anak Dalam people are still very much influenced

by their customary rules known as seloko. Seloko

serves as a guideline for acting and speaking among

Suku Anak Dalam communities. Likewise in the

implementation of inheritance division, it is seen

that in practice it is still dominated by customary

law.

The provisions on the inheritance division can be

fully accepted by Suku Anak Dalam Muslim

converts and are considered to have reflected the

principle of justice because principally this matter

has been regulated in their customary seloko which

is applied from generation to generation, while the

determination is made through traditional meetings

attended by Tumenggung and Tetuo Adat. After this

provision, the parties concerned must implement it.

The community's adherence toward custom and

leaders has made no conflicts so far regarding the

division of inheritance.

3.2 The Intersection between Islamic

Law and Customary Law on

Inheritance System of Suku Anak

Dalam Muslim Converts

The intersection between Islamic and customary law

in the inheritance system of Suku Anak Dalam

Muslim converts can be seen in several aspects, as

the followings:

1. The Divison Time of Inheritance

Integration of Islamic Law and Customary Law on the Inheritance System of Suku Anak Dalam Muslim Converts

983

It can be done in 2 (two) ways, which are: deceased

and pre-deceased of the heirs. The division of

property that is carried out after the heir dies

principally has in common with Islamic law.

Basically, in Islamic inheritance law, the time to

divide the inheritance does not wait for the number

of days after the decease of the testator, but is done

after all of the inheritance is clearly known. Then,

before the division of inheritance is done, the heirs

first pay the testament and debt of the testator.

In the study of Islamic inheritance law, there is a

principle of ijbari (imperative) which means the

property transfers from the deceased person to the

heir that is applied automatically according to Allah

and His prophet provision without depending on the

will of the testator/testatrix or the inheritor (Gusasih

and Harahap, 2018). According to Syarifuddin, the

principle of ijbari contains certainty in three things,

which are; the transfer of inheritance'; the portion of

each heir; and the identification of heirs who are

entitled to inheritance (Syarifuddin, 2004).

With the decease of the heir, automatically his

property has been transferred to the heirs left, while

the execution time is very dependent on the heirs

since Shari'a rules do not limit the time.

Conversely, according to customary law, the

inheritance can be applied, either after or before the

heir dies through gift (hibah), and the testament

(wasiat) is carried out after the seventh, fortieth, and

hundredth days from the death. According to them,

it is because the division of the inheritance is about

to carry out after all of other people's rights attached

to the property are fulfilled or resolved.

2. The Causes of Inheritance and the Heirs

Among Suku Anak Dalam people, the cause of

inheritance is dominant because of the marital

relationship between husband and wife or vice versa,

and the existence of the family, especially between

children and parents. Hal ini sebagaimana

pernyataan Usman:

“Kalau ditanyo, sebab ohang nerimo warisan ko

kerno perkawinan atau biso juga kerno hubungan

anak dengan ohang tuonyo”.

(If questioned, a person receiving the inheritance is

due to the marriage or the relationship between the

child and the parents).

This practice shows the similarity between

Islamic inheritance law and customary law.

Furthermore, related to the heirs, according to Suku

Anak Dalam community, the primary heirs are

children. This situation may be a reflection of the

implementation of the customary law which makes

the children become the major heir and block the

parents of the heirs. It is not in line with Islamic

inheritance law, because the parents are heirs who

have never been obstructed by other heirs.

3. The Respective Heirs

In practice, Suku Anak Dalam Muslim converts

community sets the division of male heirs twice as

much as a female's portion. This is as confirmed by

Usman:

Bagian untuk anak jantan ko duo kali lebih besak

daripado anak betino.

(The portion of male are twice as much as female's).

That the determination of male heirs is twice of a

female heir has a similarity to Islamic inheritance

law. Nevertheless, there is no clear portion of the

division to each heir, as ruled in faraid (the

provisions regarding the calculation and procedure

for distributing the inheritance for each heir under

Islamic law). Moreover, the division is often carried

out by the agreement, in which the property in the

form of plantations will be processed and utilized

together, while the houses are handed over to the

youngest daughters.

The determination of the portion of the heirs

through discussion and consensus is basically a

reflection of the implementation of customary law

and Islamic law. Customary law always requires

harmony among citizens, as well as Islamic law

always puts forward the settlement of matters by

way of discussion.

Thus, even though the customary inheritance law

knows the principle of equality of rights, it does not

mean that each heir will receive the inheritance in

the same number and the same value. Meanwhile,

the Islamic law recognizes the number of certain

parts (furud al-muqaddarah).

4 CONCLUSIONS

The plurality of inheritance law in Indonesia has

created interaction, mutual adoption, integration, or

even, conflicts among different legal systems.

According to several intersection theories applied in

Indonesia, such as receptie in complexu theory,

receptie theory, and reception a contrario theory that

in the field of inheritance for Muslims, it is very

complicated to avoid the link between Islamic law

and customary law. It also occurs on inheritance

system applied by Suku Anak Dalam Muslim

converts. In some cases, it shows that Suku Anak

Dalam people have practiced the implementation of

Islamic inheritance law, but not fully appropriate

with the rules set by Islamic law because it is still

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affected by the customary law which has been

carried out for generations. It can be seen in several

aspects: the division time of inheritance, the causes

of inheritance and the heirs, and the respective heirs.

The distribution of inheritance is decided through a

customary meeting attended by Tumenggung and

Tuo Tengganai or in some cases just based on the

agreement among the heirs and it is considered fair

and fully accepted by the heirs. As long as this

research was conducted, the authors did not find any

conflict between heirs related to the distribution of

inheritance.

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