- 著者
- 島田 弦 SHIMADA Yuzuru
- 出版者
- 名古屋大学大学院法学研究科
- 雑誌
- 名古屋大学法政論集 (ISSN:04395905)
- 巻号頁・発行日
- vol.272, pp.327-349, 2017-03-27
- 著者
- 島田 弦 SHIMADA Yuzuru
- 出版者
- 名古屋大学大学院国際開発研究科
- 雑誌
- 国際開発研究フォーラム (ISSN:13413732)
- 巻号頁・発行日
- vol.38, pp.55-69, 2009-03-24
Adat law (customary law) studies in the Dutch East Indie (Indonesia) under the colonial rule were not only academic research, but these had strong influence to the formation of Indonesian state, on the other hand, adat law study can be seen as a transplant of Dutch jurisprudence to Indonesian legal system. From this point, this article focuses on the relation between Dutch legal theory in 19th century and van Vollenhoven, Dutch scholar, who established adat law study. At first, the relation between colonial management and its legal policy is considered, and then, the influence of the Historical School in the 19th century Netherlands to van Vollenhoven is discussed. In the first half of the 19th century, Dutch government maintained traditional authority based on adat law in the colony in order to implement kultur-stelsel (literally, cultivation system, or forced and monopolistic agriculture system) that had brought vast benefit to the Netherlands. Then, however, as private enterprises grew and kultur-stelsel declined, the pressure for free economy and abolishment of adat law that blocked modern transactions increased. In contrast, humanitarian group advocating the welfare of indigenous people (inlanders) requested the extension of European law to inlanders in the kultur-stelsel period. However later humanitarian group changed their standpoint, and claimed to protect adat law in order to prevent capitalistic exploitation. Van Vollenhoven’s adat law study could be included to humanitarian thought at this period. Dutch legal study had been under the Frenchman influence because of French rule from the end of 18th century. Since middle of 19th century, however, German Historical School became influential. Vollenhoven highly evaluated Dutch historical law works by, for example, Thorbecke and Oppenheim. So Vollenhoven rejected the introduction of foreign law to indigenous society, and advocated the protection of adat law. But the concept of the people’s law in colony where the ruling Europeans and the ruled non-Europeans coexist would lead weak legal protection for inlanders and discriminative legal system between European and non-European.