(2006) JLP 52: 147-167
Ratno Lukito
Abstract
It may be said that the law of inheritance is one of the most neglected domains in the Indonesian government’s campaign for legal nationalization. This neglect is in keeping with the state’s attitude towards non-state normative orderings, which is itself a product not only of the national legal ideology enshrined in the constitution that favors unification and uniformity, but also of the fact that the state is at a loss as to how to deal with the variety of inheritance traditions existing in the society. The question is thus not simply which law should be used as the main building block of the national inheritance law (whether Islamic, adat or even the Western civil law tradition) but more how to unify the practices currently followed.
Gender-neutral inheritance is one of the most complicated problems faced by the state in the issue of varied inheritance practices. This is because not all existing legal traditions in the country have the same viewpoint with respect to gender equality among the recipients of inheritance. In this respect, the concept of gendered justice, regarded as characteristic of the national legal system, has been challenged by certain traditions of inheritance that view difference in gender as a criterion for receiving the estate. Islamic inheritance law is the case that concerns us most here, especially as the tradition embodied in this religious law makes distinctions on the basis of sex. In the division of an estate the genders of the heirs become one of the most important factors in deciding whether and to what extent someone will receive a portion of an estate. This is of course in stark opposition to the traditions of civil law or adat law which generally disregards this factor in allocating shares. The paper focuses on this puzzle.
The discussion is devoted mainly to analysis of the state’s behavior towards the idea of gender justice reflected in Islamic inheritance law in Indonesia. Two decisions of the Supreme Court in 1995 in cases of Islamic inheritance touching on the issue of gender-neutrality are used as the main data to analyze the current picture of the phenomenon in the country.