Abstract
Adat (indigenous) justice system (highly heterogenous) preceded Islamic-based (mostly homogenous, with minor interpretative differences) and European-based (highly homogenous) legal systems in the Malay-speaking world of Southeast Asia, which includes present-day Brunei, Indonesia and Malaysia. Because the present European-based justice system is understood as resting upon the principle of ‘rationalization’ (in the Weberian sense) and, conversely, the other two systems are based on ‘metaphysical’ principles, they are perceived as not compatible. However, in the multi-ethnic society of Malaysia, where religion (read Islam) has become ‘ethnic identifier’ or ‘identity boundary’, practical efforts are being made to find convergence between the different involved parties through some form of compromising on the differences in principles. This paper is about these efforts. It elaborates and analyses where they have succeeded and failed, and why, and what the future holds for Malaysia. The Malaysian case is particularly significant in view of the fact that Malaysians have been considered models of sorts of the ‘moderates’ within and outside the Muslim world.
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Notes
- 1.
See Shamsul and Yusoff (2011). This is a report that has been presented, at the request of the Institute of Economics and Peace Sydney, Australia, on the occasion of the launching of the Global Peace Index 2011 at the United Nations, New York, 25 May 2011.
- 2.
- 3.
The standard text on Malaysian history is by Leonard Andaya and Barbara Andaya (1982). A number of well-known lawyers and judges (for example, Ibrahim and Joned (1985) and Wu (1990)) have written, both in English and Malay, about the complex history of Malaysian legal systems, covering the period before British colonialism.
- 4.
- 5.
- 6.
For an interesting account of the Hindu and Buddhist influence in a Malay kingdom around the Middle Ages, see Walters (1970).
- 7.
- 8.
Two scholars have offered brilliant analyses of the impact of British colonialism and colonial knowledge in defining social life and social order, including in terms of religion, in the British colonies, in which the influence of Henry J. Maine (1822–1888) was pivotal in developing, in the post 1857 British empire, the concept of ‘indirect rule’ (see Cohn (1996) and Mahmood Mamdani (2012)).
- 9.
- 10.
See the brilliant article by Kugle (2001) on how this happened in the whole of South India during the British period.
- 11.
- 12.
We are yet to read a thorough and respected Marxist- or Weberian-based study, in English or Malay, on Malaysian economy and society, but there exists a small collection of ‘Marxisant’ and ‘Weberianistic’ attempts which are mistaken by many for the real thing.
- 13.
It is cliché for observers and op-ed writers on Malaysia to characterize and arrogantly dismiss any analysis that does not highlight social conflict or does not give prominence to non-Muslim non-Malay viewpoints as ‘a dominant, conservative Malay-Muslim perspective.’ In the broader sense, such a viewpoint has been labelled ‘myopic and racist.’ It is not common for religious issues to be examined in the context of the Malaysian federalist system.
- 14.
- 15.
See Gullick (2003), but be warned, the Wikipedia version contains many factual errors and misinterpretations.
- 16.
See Gullick (1967).
- 17.
See the article, ‘“Hudud has no place in the present constitutional structure,” say legal experts’ (2014). Since 1 May 2014, Shari’a law has been enforced by a royal decree to replace the civil law in the Sultanate of Brunei Darussalam.
- 18.
See the report in the article, ‘Doing the impossible: Quitting Islam’ (2007).
- 19.
Data from the various records, in the last 15 years, of Jabatan Agama Islam, Negeri Sembilan.
- 20.
- 21.
See, Shamsul (2005, 2018). I have argued that social scientific knowledge on Southeast Asia has a clear knowledge baseline meaning a continuous and inter-related intellectual-cum-conceptual basis, which emerged from its own history and has, in turn, inspired the construction, organization, and consumption of this knowledge.
- 22.
The essay by Roff (1998) argued that Islam has been enveloped since the colonial era in a modern capitalist structural context, within which Islamic personalities, institutions and various platforms and modes of communications in the spread of Islam have been existing.
- 23.
See, Beh et al. (2020) for a comprehensive list of NGOs, CBOs and other registered voluntary organizations, Islamic and non-Islamic, in Malaysia. See also, Zuraidah et al. (2018) on the history of Sisters in Islam, an NGO, that attempts to reread and reinterpret Qur’an that is more favorable to women.
- 24.
- 25.
The term Ketuanan Melayu has been translated as ‘Malay supremacy’ or ‘Malay dominance’, but the original term used during the Communities Liaison Committee (CLC) 1949 was ‘Malay-led’ political coalition, recognizing Malay, demographically, as the majority ethnic group that should lead the country. See, Fernando (2012).
- 26.
See, Chin (2020, 2021); James Chin is a professor of political science in Tasmania, Australia, and a Malaysian of Sarawak origin. He rarely hides his an anti-National Front ruling government of Malaysia and seems to be an ardent supporter of the defeated opposition party, Pakatan Harapan. He is often seen as on the side of the non-Malays in most of his political commentaries, or op-eds. This is evident in his numerous writings, see, the ones listed in Google Scholar: https://scholar.google.com/citations?user=V08w1yYAAAAJ&hl=en. The scholar Amy Chua in her book, World on Fire (2004), argued the Chinese minority has been “the market dominant minorities” in Southeast Asia (including in Malaysia) and other parts of the world. Unfortunately, this fact seems to have been ignored by James Chin even though the phenomena is true in Malaysia.
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Shamsul, A.B. (2023). One State, Three Legal Systems: Social Cohesion in a Multi-ethnic and Multi-religious Malaysia. In: Possamai, A., Richardson, J.T., Turner, B.S. (eds) The Sociology of Shari’a. Boundaries of Religious Freedom: Regulating Religion in Diverse Societies. Springer, Cham. https://doi.org/10.1007/978-3-031-27188-5_3
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