IN SOCIAL CONTINUITY

From where did the candle drip? Behind the lantern on a cord. mtlno asa niniek kito From where did our ancestors originate? Dari ateh gunueng Marapi From the top of Mount Merapi.

VAN HET KONINKLIJK INSTITUUT VOOR TAAL-, LAND-EN VOLKENKUNDE

86

FRANZ VON BENDA-BECKMANN

PROPERTY IN SOCIAL CONTINUITY

CONTINUITY AND CHANGE IN THE MAINTENANCE OF PROPERTY RELATIONSHIPS THROUGH TIME IN MINANGKABAU, WEST SUMATRA

THE HAGUE -MARTINUS NIJHOFF 1979

I100I200**,** kms

, ~, r~""\ ..., " ~\ I'
\ ......
......
I -... , N, SUMATRA'--, ",, ~, :, "'-' '. {

L, Sika::';;g'~-(~ ,~, '. payakwnbuh· " ' ___, RIAU I Batusangkar
r-.....-.......... ".
950, Si ng karG,.,k kms

-'. ~ ~

SijUnjUn~~.-~~_\

~-, ,., I ," B,I,, I, ,.- I

~''''~EST SUMATRAI"""'--"'-"'~

, I IJAMBI I,,, ~C;in Indian Oaean ", I I ~ora I
) ......
,
" ........,
".' ~ ...-,,, ~gai ", Map of the research area

1000 m ~-=~--~!--~--~! _.- .-.-.-' !,.,.--;:z::~:::::::- .,./ JZ. ,..-.- ,,- ,,- ,,- i i

I I .'

'. '. '. \ '. \ .. I i

\ \ \ I\ I ) ! ! I I; I

, \

I. '.
I. \ I ! I, I;
MOUNT MEAAPI

(, B BALAI-COUNCIL HALL 6. MAIN MOSOUE Nagari Candilllg Kota Lawas

XIII

A NOTE ON ORTBOGRAPHY

ABBREV IATI ONS XVII
INrRODUCTION
GlAPTER ONE: BASIC ASSUMPTIONS AND HYPOTHESES 13
A. The Analytical Frame of Reference: Social Functions 13
B. Social Organization: The Restrietion of Society's Members'
Autonorny 1 8
C. Law 25
25
11. The Concept of Law Used in This Study 28
1. The Specification of the Concept 28
2. The Manifestations of Law 31
D. The Social Function of Property and Inheritance 39
39
11. Inheritance: Non-Reciprocal Diachronie Transfers 45
GlAPTER TWO: SOCIG-POLITICAL ORGANIZATION IN MlNANGKABAU 57
A. Introduction 57
B. Group Formation and Inter-Group Relationships 61
61
1. The Buah Gadang and 62
2. Subdivision and Cleavage of Buah Gadang 64
11. Other Groups 70
1. The Jurai 70
2. The Rumah 70
3. The Kampuang 71
4. The Pariuak 71
111. Group Formation on More Inclusive Levels and the System
of Inter-Group Relationships 72

I. The Terminological Problem

I. Property: Domain, Object, and Relationship

I. The Constituent Groups

lts Internal Structure

The Territorial Divisions of the Nagari 79
1. The Adat Divisions of CKL 79
2. The Buek Division 79
3. The Sidang System 80
4. The Jorong Division 81
C. The Allocation of Authority 81
81
11. Authority Vested in Social Positions 82
1. Group Leadership 82
2. Authority Vested in Females 83
3. Authority Vested in the Father 84
111. Authority Vested in Offices 85
1. The Offices of the Buah Gadang 86
2. The Offices of the Hindu System 89
3. The Hierarchical Structure of Social Positions of
Authority 91
IV. Authority Vested in Groups 92
V. Conclusions 93
D. Relationships Between Individuals and Individuals and Groups 94
94
The Kin 95
1. Individualizing Reference 96
2. References Involving Group Terms 97
111. Marriage 100
1. The Organization of Marriage 100
2. Rules Affecting the Choice of Marriage Partners 101
3. Divorce 105
4. Relationships Established Through Marriage 105
E. Residence 106
J. Introductory Note 106
108
110
1. Residence in Adat 111
2. Residence in Buek 111
3. Residence in Pusako 112
4. Residence in Jorong 112
IV. Conclusion 112

I. The Basic Principles of Authority in Mïnangkabau

I. Introductory Note

lI.

IJ. Domestic Residence

lIl. Political Residence

1HREE: 1HE PLURALISTIC SITIJATION 113

A. The Systems 113
1. Adat/Adat Law 113
1. Adat 113
2. Adat and Adat Law 116
118
120
B. The "Existence" of the Legal Systems in Minangkabau 120
120
1. Pre-Independence Development 121
2. Post-Independence Development 125
11. The Actual Use Made of the Systems 127
1. The Legal Systems Used by the Courts 127

II. Islamic Law

II 1. Wri tten Law

I. The Colonial and National Legal System

2. The Use Made of the Systems in the Nagari Institutions of Decision Making 128
3. The Use Made of the Systems Outside the Formal Institutions of Decision Making 129

4. The Actualization of the Systems in the Knowledge of the ~linangkabau 129

5. The Knowledge of Written Law 130

6. The Knowledge of Islamic Law 131
7. The Knowledge of Adat 132
   rnAPTER FOUR: '!HE LEVEL OF MEANING: SYSTEMS OF PROPERIT
   RELATIONSHIPS IN MlNANGKABAU 137
   A. Introductory Note 137
   B. Adat 138
   139
8. The Level of Socio-Political Authority Over Property 140
9. The Category of Pusako 147
10. The Category of Harato 149
11. The Adat Pusako: Acquisition, Use, and Diachronie Transfers
    150
12. The Pusakoization of Harato Pancaharian 150
13. The Relationships to the Harato Pusako 152
14. The Relationships to the Pusako Kebesaran 164
15. Transfers of Property Relationships in Minangkabau Adat 167
16. Introductory Note 167
17. Jua Bali - 168

I. Categories of Property Relationships and Property Objects

in Minangkabau Adat

of Property Relationships Based upon Group Membership

Selling and Buying

s.
Testamentary Gifts

in the Adat Pusako

~~mbers' Autonomy

I. Wa~iyya Wa~f

Intestate Inheritance

I. The Basic Principles of Dutch Property and Inheritance Law

218 218 218 223 225

ry 233
11. Inter-Kaum Relationships and Property 234
1. The Kaum-Split 235
2. The Punah-Situation 239
3. The Inter-Kaum Pawning Case 249
111. The Extinct Buah Gadang 253
IV. 259
1. The Descendants of Slaves and Their Mamak 259
2. The Descendants of Strangers 263
V. The Children - 265
1. The Disputed Legal Status of Harato Pancaharian 266
2. The "Impure" Harato Pancahanan 267
VI. The Relationships Between the Children 269
C. The Modalities of Diachronic Transfers of Property Relation-
ships in Historical Perspective 274
274
11. The Means of the Holders 275
1. The Means 275
2. The Exercise of Autonomy 278
3. From Status to Contract in Historical Perspective 285
4. The Adaptation of Interpersonal Relationships to
Property Strategies 292
111. The Means of the Would-Be Heirs 300
1. The Means 300
2. The Legitimation of the Would-Be Heirs' Claims 301
3. The Agents of Validation 305
CHAPTER SIX: THE LEVEL OF PERFORMANCE II: THE PRODUCT ION OF
LEGAL CONCEPTIONS IN HISTORlCAL PERSPECTlVE 311
A. Introductory Note 311

SlID1JIla

Inter-Strata Relationships

Kamanakan Conflict

I. Introductory Note

I. The Product ion of Legal Conceptions 311

11. Concrete and General Legal Conceptions and the Problem of Change
    B. The Clash of the Systems of Property Relationships
    

    I. Adat and Western Law

I. The Recognition of Autonomy in Property Affairs in Historical Perspective

in Historical Perspective

I. Introductory Note

in the Domain of Property Relationships in Minangkabau

MAPS

~~~ First SettIements and Territorial Divisions The Development of the Nagari Terri tory

The research of which this study is the first major product was carried out by my wife Keebet and myself between 1973 and 1975, when I was still a staff member of the Ethnological Seminar of the University of Zürich, Switzerland. It was made possible by a generous grant given by the Kommission zur Förderung des akademisahen Naahwuahses der Universität Züriah and by an additional grant of the Sahweizer NationaZfonds. My wife and I spent several months in the Netherlands for literature studies, and for three months followed a language course given by drs. Mellema of the Royal Tropical Institute in Amsterdam and by Mrs. Padmi Strik. Our field research in Indonesia, which lasted from June 1974 to September 1975, was carried out under the auspices of LIPI, the Indonesian Institute of Sciences, and under the sponsorship of the University of West Sumatra in padang. We are indebted to the Rector, Dr. Busjra Zahir, and to the Dean of the Legal Faculty, Burma Burhan S.H., who supported our research proposals. We had some helpful discussions with the staff members of the Legal Faculty. In particular, we wish to thank sdr. Narullah Dt. Perpatih nan Tuo S.H., who acted as our counterpart and conductedhisawn research on inheritance law, the results of which unfortunately are still unpublished. The Indonesian government institutions on all administrative levels kindly assisted us and took a friendly interest in our research. We would like to thank the Camat of IV Angkat Candung and the WaZi Ne ge ri of Candung Kota Lawas in particular. We owe special gratitude to the chairmen and staff of the PengadiZan Tinggi in Padang and of the PengadiZan Ne ge ri in Bukit Tinggi, Batu Sangkar, and Payakumbuh who supported our research in a very helpful way. Rasjid Manggis Dt. Rajo Panghulu and Sinjar Dt. Mangkuto Sati in Bukit Tinggi spent many hours in helping us to understand Mïnangkabau adat. The villagers of Candung Kota Lawas accepted us and our curious questions for a period of ten months with much understanding and tolerance. In particular, we would like to thank Itam, who so weIl understood our wish to leam

PROPER1Y IN SOCIAL CONflNUI1Y

about Minangkabau village life, and Haji Dt. Bagindo Basa, Dt. Malano Basa, Palimo Putih, and Sidi Katik, without whose help our research would have been a failure. We should also like to mention the fellow anthropologists whom we met in the field and with whom we spent many hours discussing Minangkabau and the pleasures of field work: Fred Errington, Nigel Phillips, Joanne Prindiville, Nancy Tanner, and in particular our friends and "neighbours" in nagari Gurun, Kris and Lynn Thomas. Prof. P.E. de Josselin de Jong helped us with friendly advice and temporarily very kindly provided us with some luxurious field equipment. Dr. Junghans and Dr. Häselbarth, the leaders of two German agricultural development projects working in West Sumatra, allowed us to make use of some of their material and assisted us with maps. I gratefully acknowledge the helpful suggestions and comments made by Prof. J. Griffiths, Prof. J.F. Holleman, Prof. L.G. Löffler and Lynn Thomas who read earlier drafts of this study. Prof. J.F. Hol leman, Mrs.

G. Moyer and Lynn Thomas also helped me transform my English into a readable language for which I am very grateful. The responsibility for any faults and awkward phrases rests, of course, with me. I further would like to thank Hans Borkent for drawing the diagrams and most maps, and Ank Everts and Marianne Roest for typing the manuscript. My wife and I spe nt endless hours discussing law, Minangkabau adat, and my study during the last years. I have profited immensely from our conversations. Fortunately, there are other ways to express my gratitude to her than in these acknowledgements.

Leiden, December 1978 Franz von Benda-Beckmann

l\DTE ON ORTIIOGRAPHY

In this study I have regularly used Minangkabau and Indonesian words, particularly the basic concepts through which the systems of socio-political organization, property, and inheritance are expressed. I trust and hope that the reader will quickly accustom her-or himself to these terms and realize that, e.g., words like jurai, kaum, buah gadang, and suku convey a much clearer impression of social groups in Minangkabau than would the English terms lineage, minimal, minor, major, or maximal lineage. In the literature, but also in interviews with Minangkabau villagers, the Indonesian and Minangkabau terms are of ten used interchangeably,

e.g. harta pusaka (Ind.) or harato pusako (Min.) ~or inherited property. Cornbinations of words from the two languages are also quite frequent, like in harta pusakQ. In order to achieve some s tandardi zat ion, I have in principle employed the Minangkabau terms; only in direct quotations have I given the (usually Indonesian) forms. A glossary of Minangkabau and Indonesian terms is appended to the study (pp. 429-436); in the cases where Indonesian and Minangkabau words have been used for the same term, the Indonesian has been inserted in brackets. With re gard to the Indonesian and Minangkabau language in general I have followed the new orthographic convent ion which was introduced in
1972. It is contained in a government publication entitled Edjaan Bahasa Indonesia Jang Diserrrpurnakan. The main changes are set out below.

Old System New System

j y dj j tj e nj ny sj sy eh kh

IN SOCIAL CONfINUI'lY

Except for same direct quotations, I have transcribed all sources using the old orthographic system into the new one. The glottal stop in words like mamak has been transliterated with the letter k as has became customary in contemporary Minangkabau and Indonesian; older futch writers, by contrast, employed the letter q or an apostrophe. The number 2 following an Indonesian or Minangkabau word, like in harta2, is the conventional abbreviation for the duplication of the word. Duplication generally indicates the plural number or undefined quantities. In the transcription of Arabic terms I have followed Fyzee (1955). However, most Islamic legal terms appear in their Indonesianized form. Finally, it should be mentioned that, unless 1 have indicated otherwise, all translations from Dutch or Indonesian sources are mine.

ABBREVIATIONS

B.l\'. Ch CKL CPNfR D
D. DPRN Dt. e F
G. GSB ha
1. Ind.
l.S. Is1. KAN KN KUA LKAAM
Angku Assistent Resident Artike l (section) Brother Bürgerliches Gesetzbuch(German Civil Code) Burgerlijk Wetboek (Dutch Civil Code) Children Candung Kota Lawas Corops Penasehatan Nikah Thalak Rujuk (Advisory Committee of the Registrar of Marriage, Divorce, and Remarriage) Daughter Dutch Dewan Perwakilan Rakyat Negeri (Elective Village Parliament) Datuk, Datuek (ti tIe of higher adat functionaries, particuIarIy of panghulu) elder Father German Gubernur Sumatera Barat(Governor West Sumatra) hectare Inyiek Indonesian Indische Staatsregeling Islamic Karapatan Adat Nagari (Nagari Adat Council) Kerapatan Negeri (Nagari Council) Kantor Urusan Agama (Office for Religious Affairs) Lembaga Kerapatan Adat Alam Minangkabau (Association of the Minangakabu Adat Councils)

LR M MA Min. MUBES par. PN PP PT P3NfR

R.B.G.
R.R. RvJ S
S. SK WN Y Z
PROPER1Y IN SOCIAL CONfINUI1Y

Landraad (Dutch colonial court) Mother Mahkamah Agung (Supreme Court) Minangkabau Musyawarah Besar (Full meeting of the LKAANQ Paragraph (section) PengadiZan Ne ge ri (State Court) Peraturan pemerintah (Governrnent Regulation) PengadiZan Tinggi (State Appeal Court) Pembantu Pegawai Pencatat Nikah ThaZak Rujuk (Village Reg is trar of Marriage, Divorce, and Remarriage) RechtsregZement voor de Buitengewesten RegeringsregZement Raad van Justitie (Dutch colonial Appeal Court) Son StaatsbZad (Governrnent Publication) Surat Keputusan (Provincial Regulation) WaZi Negeri (Village Mayor) younger Sister

NrRODUCTI ON

Learn the laws of inheritance and teach them to the people; for they are one half of useful kno~ledge. ~,lohanrrned (Fyzee 1955: 329)

When the prophet created this aphorism he had in mind the TUles of inheritance law revealed to him by Allah. We could apply it to social anthropology as well since the inheri tance of property and the succession to positions of socio-political authority are among the most important elements of social organization. They are the vehicles of continuity which maintain property and authority through time. In many societies, and particularly in those generally studied by anthropologists, inheritance and succession are closely interconnected with kinship and descent and provide the economic and political substance for the existence and continuity of kinship- or descent-based social groups. They are, as it were, the flesh on the bare bones of kinship relations. The importance of inheritance has, of course, not escaped the notice of social and legal anthropologists, and in recent years several studies have ably demonstrated the point (Radcliffe-Brown 1952, Goodenough 1951, Leach 1961 b, Goody 1962, Lloyd 1962, Gray and Gulliver (eds.) 1964, Derrett (ed.) 1965, Gluckman 1972, Moore 1969, Burling 1974). Yet in general, property and inheritance have rather been treated as an appendix to economic and kinship studies. In particular, "methods of inheritance have received little systematic treatment" (Goody 1962: 11), and "there are only a few accounts available which give us more than oversimplified statements" (Pospisil 1971: 347, cf. Moore 1970: 279 f.). This study attempts both: To make a contribution to the systematic study of inheritance and inheritance law, and to give a detailed statement for one so-

PROPERTY IN SOCIAL CONTINUITY

ciety, the Minangkabau.

The Minangkabau inhabit the west coast of Sumatra. The greatest part of the traditional Minangkabau world, the alam Minangkabau, is today comprised of the province of West Sumatra of the Republic of Indonesia. Within the provincial borders, in the Padang Highlands, lies the nucleus of the Minangkabau world, the darek, which was divided into the three districts (luhak) Tanah Datar, Agam, and 50 Koto by the legendary rulers and law-givers Dt. (Datuk) Perpatih nan Sabatang and Dt. Katumanggungan. Surrounding the darek was the rantau, those areas which, according to the legendary history transmitted in the tambo-Iegends, were settled and colonized by the inhabitants of the darek. The rantau comprised the Padang lowlands, the coastal plains of 1Vest Sumatra in general, and large parts of the present provinces Riauw and Jambi. Together, darek and rantau extended nearly all over central Sumatra (cf. Naim 1974: 33 ff., 91 ff.). In the 15th or 16th century, a part of the Malayan penin- suIa, Negri Sembilan, was settled by Minangkabau immigrants and since th en there have been constant relationships between Negri Sembilan and Minangkabau. Sometime in the 14th century a kingdom was established in the Padang Highlands. Little is known about the history of the Minangkabau kingdom but there is evidence that it had important external and trade relations with the surrounding areas and islands. But when the Dutch landed on the west coast in 1600, the coastal plain was under the control of Achenese merchant governor~ The reports which reached the outside in the second half of the 17th century all indicated that no actual power was exercised by the king. The Minangkabau world consisted of nagari, village states, which seem to have been quite autonomous. Of the nagari in the darek it was said that they were governed by the panghulu, the leaders of the nagari matrilineages. The nagari in the rantau were said to be governed by a rajo, a king, possibly a representative of the King of Minangkabau. The Dutch had ousted the Achenese as rulers in the main trading centers at the west coast in the second half of the 17th century. But it was only in the beginning of the 19th century that Dutch colonial rule was established in the Padang Highlands and the three districts. Since the Republic of Indonesia has established a regular system of administration, the province of West Sumatra is now subdivided into 8 districts, Kabupaten, which are headed by a Bupati. Three of these districts more or less correspond to the old "three districts" Tanah Datar, Agam,and 50 Koto. Each Kabupaten is divided into 5 to 10 subdistricts, Kecamatan, headed by a Camat. The Kecamatan con-

NTRODUCT ION 3

sist of 5 to 12 nagari, which total 508 in the province. Besides the 8 Kabupaten, there are 5 townships or Kotamadya, Padang, Bukit Tinggi, Payakumbuh, Padang Panj ang and Sawah Llillto, which have their own admini- strations and which together comprise 35 nagari. Most of the present nagari are also nagari according to adat, the traditional political constitution of Minangkabau. However, during Dutch colonial rule and also af ter Independence, some adat-nagari have been split and others lillited for administrative purposes. The contemporary population of the province numbers 2.792.221, 389.793 of whom live in the towns. Thus approximately 86% of the population live permánently in the nagari; most of the townships have a rather nagari-like character, too. Minangkabau have a long tradition, of "going to the rantau", of a temporary vollilltary migration (cf. Naim 1974). Nearlyas many Minangkabau are estimated to live outside the province of West Sumatra as within. Minangkabau is predominantly an agricultural area. In terms of measures of economie productivity, West Sumatra is one of the poorest of Indonesia's provinces as there are no highly remlillerative natura I resources and but little modern industry. The standard of living, however, is good and there is as yet but little poverty. The main subsistenee erop is rice, which is cultivated on irrigated fields (sawah) and dry fields (Zadang). The quality of the field differs widely, but in some areas two harvests per year are possible, and in many are as people can harvest 3 times in two years. Coffee, cinnamon, nutmeg, cloves, and chili-peppers are grown as cash-crops. Rice is grown as a cash-erop, too. At the coast and in the areas surrolillding the lakes, fish are an important means of subsistenee and are also sold in the markets. Many nagari have long developed specializations in particular economie activities. One is known for its gold and silver works, another for its weaving, and yet another for its blacksmithing industry (Kahn 1975, 1976; for detailed geographic and economie data see Scholz 1977). Within Indonesia, Minangkabau is represented in nearly each small town by the people who have gone merantau and work as traders, propriet- ors of restaurants and administrative officials (cf. Naim 1974). A look at the street map of Jakarta, the capitalof Indonesia, indicates the number of Minangkabau who were prominent in the struggle for independenee and who helped to govern Indonesia afterwards. Politicians and intellectuals such as Hatta, Natsir, Sutan Syahrir, Abdul Muis and Haji Agus Salim are Minangkabau, as also are others whom the street names do not mention any more such as Tan Malaka, the leader of the former Communist Party of

PROPERTY IN SOCIAL CONTlNUITY

Indonesia. Besides, the Minangkabau are counted among the most devout Mls- lims in Indonesia. Any visitor will quickly realize that the puasa, the fasting, is kept very strictly in Minangkabau. r1inangkabau has produced a large number of prominent Islamic scholars. r4any Islamic schools have been established since the beginning of this century which attract pupils from all over Indonesia (cf. Taufik Abdullah 1971, 1972). It is estimated, that in. Jakarta, about 60% of the khatibs, the preachers who give sermons during Friday prayers, are Minangkabau (Naim 1974: 183). Of course, the Minangkabau are also known for their "matriarchal" adat (socio-cultural and legal system), their adat pusako (adat of matrilineal heritage) or adat kamanakan (adat of the sister's children). This latter aspect was of particular interest for the Dutch and other foreign administrators and anthropologists. This Islamic society had a social system which fulfilled nearly all prerequisites of an ideal matrilineal system: The population was organized in matrilineal descent groups. Authority was with the mother's brother. Residence was duolocal or uxorilocal. There were no conjugal families. There was the highest rate of polygamy in Indonesia. Cross-cousin marriages we re considered ideal. There was much to make anthropologists curious. And Minangkabau did make anthropologists curious. Among the Dutch scholars of Indonesian cultures and adat law, Minangkabau has always taken a prominent place. But as most reports on Minangkabau were written in Dutch, most of the available literature escaped the notice of the non-Dutch reading anthropological public. Publications in more widely read languages we re rare until recently. In German, little has been written (Lublinsky 1927, Scholz 1977) since KohIer (1910) acquainted the German public with Willinck's monumental (950 pages) Het Rechtsleven bij de Minangkabausche Maleiers (1909) (The Legal Life Among the Minangkabau Malays). French publications are equally rare. Collet's book on the peoples of Sumatra (1925) only recently has been followed by Cordonnier's report (1974). In English, too, there had been only a few publications. Af ter the work of Loeb (1934, 1935) and Cooper-Cole (1936, 1945), it was mainly De Josselin de Jong's thesis on socio-political organization in Minangkabau and Negri Sembilan (1951) and the inclusion of Minangkabau among the societies discussed in Schneider and Gough's volume Matrilineal Kinship (1961) which made Minangkabau known to the general English reading public. Only in the 1960' s did there begin what may be called a Minangkabau- boom. Publications on Minangkabau, written by foreigners and Minangkabau social scientists themselves, appeared in an increasing number, and most

of them were based upon field research OMaretin 1961, Fischer 1964, Tanner 1969, 1970, 1971, Cordonnier 1974, Kahn 1975, 1976, Dobbin 1975,1977, Evers 1975, Thomas 1977, Scholz 1977, F. and K. von Benda-Beckmann 1978; Umar Junus 1964, Bachtiar 1967, Taufik Abdullah 1966, 1971, 1972, Sa'danoer 1971, Naim 1974). Minangkabau thus certainly is no virgin field of study. Yet the words of De Josselin de Jong still hold true, that: " ... the social organization of the Minangkabau is known generally but super- ficially ..• 'Generally', in both meanings of the word: there is a fairly adequate. general acquaintance with the Minangkabau among anthropologists who are not Indonesia specialists; and the specialists have by now an adequate general picture of the overall structure of this society, but are at a 1055 whenever one proceeds from the general to the particular" (1975:20,25). The research which my wife and I carried out focussed upon three particulars:

1. The socio-political organization of one nagari. In this study, only a general account will be given of the socio-political organization of one nagari; we hope to give a more systematic general account of Minangkabau socio-political organization in a later publication.
2. The processes of dispute-settlement in the nagari institutions and in the State Courts, with particular emphasis on the problems resulting from the fact that the State Courts are mandated to apply substantive adat law but in doing 50 are bound by rul es of procedure and evidence which have been modelled af ter Dutch law. These problems will be dealt with in a thesis my wife is currently preparing.
3. The Minangkabau system of property relationships and inheritance, of which there has been no systematic study since the writings of Willinck (1909) and Guyt (1936). This last topic will be dealt with in this study. A contribution to the ethnographic knowledge of Minangkabau is, however, not the sole purpose of my study. It is further meant as a contribution to the anthropological study of property, inheritance, and law. Minangkabau is an excellent example with which to illustrate the theoretical and practical difficulties of legal anthropology. The legal system which pertains to property and inheritance affairs is pluralistic: There is adat, the indigenous ~linangkabau system, Islamic law, and written law (statutory colonial and national law). Besides, a variety of institutions are given an active part in the social processes of dispute-settlement and dispute-prevention. There has, moreover, been a considerable change

PROPERTI IN SOCIAL CONflNUITI

both in the legal systems as weIl as in the practice of handling property and inheritance affairs, in particular a process of ever increasing individual autonorny in property affairs and of concentrating property and inheritance within the conjugal family. Such changes are the more striking, because they are taking place in a society which still adheres to an ideology of matrilineal descent. To deal with these problems, a different approach than that usually taken by legal anthropologists is necessary. The approach taken in this study tries to fulfill Moore' 5 prophecy, that "in the future, law and legal ins ti tut i ons are likely to be analyzed simultaneously from long-term historical perspective, and from the perspective of individual-centered, short-term, choice-making instrumental action and interaction" (1970: 294 f.). In the first chapter I shall outline the assumptions and hypotheses underlying this approach. Here I shall only give a brief summary of the structure of the study indicating the main principles on which it is based. This study does not just describe systems of property and inheritance. The system of property relationships is only one aspect of the total 50- cial organization (Moore 1970: 253, Nader and Yngvesson 1973: 886). In some societies it is 50 weIl integrated into the other aspects of social organization that it is nearly impossible to dissect it and treat it in isolation. That this is of ten 50 in traditional societies has already been stated by Maine, who held that the law of things can hardly be divorced from the law of persons (1905: 230). Yet if one wants to concentrate on one aspect, the dissection must be made, particularly in those situations where a pluralistic system of cognitive and normative conceptions pertains to one field of social relations. However, it is necessary to the structure of the study that, before the systems of property and inheritance are described, an outline must be given of the social and political framework in which they operate and of which they are a part. I shall therefore start my study with an overview of the socio-political organization in Minangkabau (Chapter 2) and shall then give a brief account of the development of the pluralistic situation in the administrative and legal field (Chapter 3). Property and inheritance in Minangkabau will then be treated under three headings. First I shall describe the three systems of property and inheritance that exist in Minangkabau (Chapter 4). In the second part (Chapter 5) I shall illustrate how the Minangkabau actually handle their property and inheritance affairs, and try to assess the degree to which

their actions are influenced by the cognitive and normative conceptions which the three systems offer. The question of by reference to which system the Minangkabau use to legitimate their actions here steps into the background. The question remains important, but the emphasis here is on the actual conceptions used. For even if one system is said to be used, this does not yet indicate which concrete conceptions are employed. Conceptions of one system may be used in the guise of another, and new conceptions may be construed and be declared to be part of a system. Many cases described in this part of my study involve conflict, and in many cases institutions of conflict resolution take an active part in the process of inheritance. Yet my concern is not with trouble cases per se. In terms of common anthropological language, the cases discussed are extended ones which are defined by reference to an analytical point of reference: in- heritance. In the second section of Chapter 5 I shall isolate the various ways of bringing about inheritance, and attempt to analyze which role they play and have played in historical perspective. In the third part (Chapter 6) I shall concentrate on the application, change, and creation of legal conceptions in historical perspective. A differentiated approach is required here, for in Minangkabau there are several "authors" who continuously produce and reproduce legal meaning: The courts, the adat institutions, the literature, the legal experts within and without the nagari, and, last but certainly not least, the "people". I shall restrict my description and analysis to the conceptions that refer to what in my view are the most crucial aspects of the systems of property and inheritance: the problem of society's members' autonomy over property and the representation of time in the conceptual system in which property relationships are expressed. Af ter the description and analysis of the systems of property and in- heri tance (Chapters 4,5,6) 1 shall "put" property and inheri tance "back" again into the social organization in general. In the concluding analysis I shall try to interpret the Minangkabau system of property and inheritance and the changes that have occurred therein as part of the overall social and political organization (Chapter 7). With this organization of my data I hope to come close to a de scrip- tion and analysis which pays due re gard to the dialectical process of social reality, as it has been reformulated recently by Berger and Luckmann (1967), and which Gluckman has cast into the formula "that law can only be understood through cases, and cases can only be understood through law" (1973b: 622). The systems described in Chapter 4 are, of course,

PROPERTI IN SOCIAL CONTINUITI

nothing but the result of the social processes by which inheritance is carried out and by which legal meaning is produced. They must be regarded as differentiated bodies of cognitive and normative conceptions, changing through time. Yet an understanding of the differentiating processes presupposes the knowledge of the systerns, which are therefore best described first in order to make clear what is being differentiated. I do not claim that rny ordering of the data is the only adequate representation of the dialectical process through time. The only thing I can say is that there is probably no "really" adequate form, and that the way I have chosen has been chosen conscientiously.

The kind of data employed in this study raises some problerns which need be briefly mentioned. The material upon which my interpretation of Minangkabau social organization and its property and inheritance systerns is based is very heterogenous. 1'0 a large extent, it is drawn from earlier sources in the literature; for the rest it is material which my wife and I have collected during our field research in Minangkabau. Our data partly refer to the contemporary situation in Minangkabau, and partly to the past as it is envisaged by our informants. This raises the question of the proper periodization of the information. As Kahn has recently pointed out, the Dutch literature has often presurned an "ideal-type" rnatrilineal Minangkabau society which is generally taken to be the Minangkabau social organization, whereas it in fact only represents the system as it was under Dutch rule, reflecting all the influences which Dutch rule had upon it (1976: 65, 79 f.). With the general point I agree. Most data were collected in the 19th and 20th century af ter the establishment of Dutch rule and the turmoil of the Padri-war. And it has to be adrnitted that "a consistent picture of pre-Padri social organization has not yet emerged" (Kahn 1976: 80).Yet I think that the immense wealth of available data allows a much more differentiated analysis than is admitted by Kahn, and I cannot share his view that the picture of the traditional matrilineal Minangkabau system was basically the product of Dutch colonial policy. But the fact remains that there are hardly any data on pre-Padri Minangkabau, and rny description should therefore, unless 1 indicate otherwise, be taken as to refer to Minangkabau since the beginning of the 19th century. The available data will not always permit this study to live up to its analytical frame of reference. A duly differentiated account can

be given at least partly of the contemporary situation. Also with respect to the development of adat in the literature and in the courts, this can be done tolerably weIl. However, for the development of adat in the nagari and for the actual practice of property and inheritance affairs in historical perspective we have to depend on very general and undifferentiated reports. A further comment must be made on the representativeness of the data. As far as the description of the socio-political organization and the systems of property and inheritance and their historical development are concerned, the description will hold true more or less for Minangkabau as a whoIe; important variations from the general pattern will be mentioned. This information is largely derived from the literature, of which we made an intensive study in Dutch libraries before we went to the field. The data on court practice which we have collected in the field, mainly refer to the State Courts (pengadilan Negeri) in the districts of Agam, Tanah Datar, and SO Kota. With the friendly help of the chairmen and the staff-members of these courts, we could check the court registers and study court records and judgements as far as these were available. For the period of 1968-1974 we could get a fairly differentiated idea about the courts' case-Ioad and the way in which suits were handled formally. Additional data were collected through structured interviews and casual conversation with the judges and the other staff-members. When our knowledge of the languages (Indonesian and Minangkabau) had become sufficiently good, we were also able to attend court hearings and systematically followed several processes. According to our division of labour, this part of the research was carried out by my wife, who will report most of her findings in her thesis. The particular data on socio-political organization, the system of adat, and the practice in property and inheritance affairs -both for the historical development and the contemporary situation -were collected in the nagari Candung Kota Lawas, where we spent about 10 months of our research. Their particular character will always be indicated. Candung Kota Lawas (CKL) is located in the Kecamatan IV Angkat Candung in the Kabupaten Agam. It lies adjacent to the main road that connects Bukit Tinggi with Payakumbuh. The nagari extends from this road to the slopes of the vulcano Merapi from where the ancestors of the Minangkabau descended according to the legends. CKL has always been one nagari according to adat. During the Dutch colonial rule, it had been divided into two administrative naga ri, Candung and Kota Lawas, in the 1830'5.

IN SOCIAL CONTlNUITY

In 1915, Candung and Kota Lawas were reunited. CKL is a large nagari. It comprises some 20 settIement centres and covers an area of approximately 2.300 hectares (see map on p. V). According to the Government census of 1971, the ponulation numbered 9.636 persons, 4.358 of whom are indicated as "children" (probably meaning:unmarried) and 5.278 as "adults".

3.444 persons originally from CKL live in the rantau, 2.291 of whom are children, 496 are married pers ons, and 675 are individuals who work as dealers and military and administrative officers. The sex-ratio is more or less even: Of the children there were 2.166 boys and 2.192 girls. Among the adults we find a preponderance of women, 2.970 as compared with
2.308 men, and this difference is matched with a corresponding preponderance of men among the persons living in the rantau. The people of CKL mainly live by agriculture. The naga ri has an area of 1.115 hectares of irrigated rice-Iand. The average of 0.116 ha per capita is slightly higher than the average for the district Agam (0.115) and definitively higher than that of the whole province (0.098). If calculated on a per capita basis and disregarding the uneven distribution of land within the nagari, the harvested rice is still sufficient to support the subsistence needs of the whole population (using a similar calculation as Kahn 1976: 76). In addition to rice, cinnamon and coffee as weIl as some tobacco, vegetables, and chili peppers are grown, partly for subsistence and partly for the market. The people have few cattIe; there were only 284 karbau (water buffaloes) and 230 cows kept in CKL. Some people engage in petty trade with cattIe, tobacco, and clothes, some families run rice-mills and coffee-shops. Others make embroideries for gowns or make baskets, a small home industry. We spent ten pleasant months in CKL. Once it had been established that we were neither development experts nor missionaries, we were quite warmly received by the villagers. That foreigners showed interest in their lives and the social organization of their nagari was no surprise to most villagers, who are weIl aware that their "unique matriarchal adat" gives them a special status among Indonesia's ethnic groups. It was within their understanding that our research primarily was aimed to further our own academic careers, for success in the modern educational system is something which is highly valued in Minangkabau. This enabled us to live there with a minimum of hypocrisy. We collected our data in various ways. Lengthy interview-sessions with adat experts and common villagers provided much information, but of ten more valuable information was gained in the daily conversation we had

Sidi Katik

Palimo Putih Haji Dl. Bagindo Basa

Friends and teachers in Candung Kota Lawas

PROPERTI IN SOCIAL mNTINUITI with neighbours and acquaintances. We were regularly invited to ceremonies, mostly weddings, and were also allawed to attend the meetings of the Nagari Adat Council (Karapatan Adat Nagari) and of the Nagari Council (Kerapatan Negeri) when matters of nagari policy or disputes were discussed and decided. A part of the nagari area, comprising approximately 35 hectares, was mapped to get a clear impression of the distribution and holding of the matrilineages' rice-land (see map on

p. 145), and genealogies were made of the kinship networks of the persons whose property affairs we got to know best. The problems which we encountered during our research varied greatly. It was quite easy to obtain data on the ideal adat system, no villager finding it difficult to give elaborate lectures on adat topics. But it was of ten difficult to collect information on concrete social and property relations and matters of nagari polities. The response to our curiosity differed greatly here; men, in particular, could become very' evasive when such matters were discussed, women usually were much more straight forward. The information we received was of ten selective, and sometimes we were "fed" particular information. We were content when we could detect such cases on the basis of our prior knowIedge. As we moved into the nagari from which the relatively greatest number of disputes had reached the State Court, and as we had been able to study the relevant court records before we had moved, we of ten knew at least one version of the events to which new information could be related. But in general, we learnt to live and do research knowing weIl that we could not always cross-check the information we were given, not to speak of ascertaining its "truth". In the presentation of the materiaIs, particularly in the stories about property and inheritance affairs told in Chapter 5, I identify the souree and kind of information upon which my reconstructions are based.

BASIC ASSill1PTIONS AND HYP01HESES

The method empZoyed I wouZd gZadZy expZain While I have it so cZear in my head, If I had but the time and you had but the brain, But much yet remains to be said.

L. Carrol, The Hunting of the Snark
A systematic approach to the study of property and inheritance and the law which involves them requires that assumptions and methods be explicated. This I shall do in the first Chapter. I shall outline my approach to the categorization of social phenomena for anthropological inquiry and explicate my assumptions ab out the nature of human social organization. 1 With this done, I shall be able to indicat~ what I understand to be "law", "property", and "inheritance".

A. TIIE ANALYTICAL FRAME OF REFERENCE: SOCIAL FUNCTIONS The ultimate aim of anthropology is the scientific understanding of human social and cultural behaviour and a systematic understanding of the distribution in time and space of its manifestations (in the words of Goldschmidt 1966: 2). The theories and methods developed by post-evolutionary social anthropology have mainly centered upon the analysis of the internal structures of single societies, analyzing the functional interconnections between their constituent elements. As these elements, generally cal led institutions, vary from society to society, the result of the study of one society cannot be extrapolated to others. But a scientific understanding of human social and cultural behaviour can only,

PROPERTY IN SOCIAL CONTINUITY

if at all, be achieved through intercultural comparison. This raises the question of what should be compared. The dominant approach has been the comparison of institutions. As institutions differ from society to society, efforts were made to define them in a way as to make the definitions cross-culturally applicable. This raises two questions which have not always been kept apart:

1. How far can such resulting conceptual systems, with their inherent problems of ethnocentrism, be appropriate for the comparative study of human societies?
2. Can one in the first place reasonably derive one's conceptual frame of reference from institutions per se? The discussion of these questions has occupied anthropologists' attention to a degree that it has been more or less equated with anthropological theory in general. One of the most notorious discussions to plague legal anthropology has focussed on the quest for a cross-culturally applicable definition of the concept of law; and in this discussion the question of whether concepts taken from western legal languages can be successfully employed in the description and analysis of non-western legal systems has, naturally, been prominent. This discussion found its culmination in the so-called Bohannan-Gluckman controversy (see Nader 1965, 1969, Bohannan 1969, Gluckman 1969, 1973 a). Some stressed that the social reality of the societies studied would be distorted if the terms of western legal systems were used, a point already made by the Dutch adat law scholar Van Vollenhoven in 1909 (1909: 42 ff.). The discussion found its preliminary end in a compromise on a "comparative analytical system", a conceptual system to which legal phenomena and theories of various societies could be related (Nader 1969: 4). Unfortunately, however, just what this comparative analytical system should look like has yet to be determined. 2 But the basic problem is not 50 much the question of concepts and the appropriate analytical language, but what the concepts should mean. As Moore has pointed out recently, what the participants in the controversy mentioned above were really concerned with was the question: Vfuat do we study in order to find out what? (1969: 338, 340, 343). On this level, most anthropologists have taken institutions as their point of departure; the institutions were then (re-)defined in order to make tlleir cross-cultural study possible. These attempts have provoked endless terminological disputes and resulted in the resignation that all attempts at

ASSUMPTIONS 15

cross-cultural definitions are vain, and in vain. 3 Both consequences are closely interrelated: The resignation is due to the insight that law, marriage, or ownership, conceived of as a social phenomenon (institution), cannot be satisfactorily defined for cross-cultural comparison; or, conversely, it is due to the failure to realize that, as Pospisil has put it: " ..• law (insert: marriage, ownership, money etc., v.B.B.) as a theore- ticaI and analytical device is a concept which embraces a category of phenomena selected according to the criteria the concept specifies. Although it is composed of a set of individual phenomena, the category itself is not a phenomenon-it does not exist in the cuter world" (1971:

39) • The terminological disputes are due to the fact that, although all writers agree that the value of a concept depends on its analytical and heuristic value, there is no consensus concerning what is of heuristic interest. And as concepts are usually applied to institutions, and as institutions differ from society to society, terminological and definitional disputes are almost unavoidable. One of the more constructive results of these disputes has been the recogni tion that the terms denoting western ins ti tutions, such as law, marriage, ownership etc., are not a monolithic bloc but rather a '~undle of rights". The bundle-of-rights metaphor, which goes back to Maine's analysis of ownership (1883),4 has been introduced into the discussion of marriage by Leach (1961 a: 105, cf. Goodenough 1970). Yet when Leach enumerated ten distinct classes of rights with which the "institutions corrmonly classed as marriage" are concerned (1961 a: 107), he transcend- ed the border drawn by the usual definitions of marriage, stating "that in no single society can marriage serve to establish all these types of rights simultaneously; nor is there any one of these rights which is in- variably establishedby marriage in every known society" (1961 a: 108). In his later essay Rethinking Anthropology, Leach argued that the anthropologists' concern should not be "comparison", understood as the comparison of institutions, but "generalization". The approach necessary for generalization was explicated in an analogy with topology: the analogy directs thinking to the organizational ideas that are present in any society as constituting a mathematical pattern (1961 a: 2). Leach illustrated this idea with a reference to the topology of an elastic surface : "If I have a piece of rubber sheet and draw a series of lines on it to symbolize the functional interconnections of some set of social phenomena and I then start stretching the rubber about, I can change the manifest

PROPERTI IN SOC:IAL CONflNUITI

shape of my geometrical figure out of all recognition and yet clearly there is a sense in which i t is the same figure aU the time. The con- stancy of pattern is not manifest as an objective empirical fact but it is there as a mathematical generalization" (1961 a: 7). By analogy, society should be considered not as an assemblage of things (institutions) but an assemblage of variables and their relationships. The same relationships can become manifest in different institutions in different societies. As Leach put it: "(We should) cease to be interested in particular relationships (those embodied in institutions, v.B.B.) and concern ourselves with the regularities of pattern among neighbouring relationships. In the simplest possible case if there be a relationship r which is intimately connected with a relationship q then in a topológical study we shall not concern ourselves with the particular character of p and q but with their mutual characteristics, i.e. with the algebraic ratio p/q. (Generalization demands) that a small cluster of interconnected facts must be treated as an isolate expressing a particular principle of social mechanism which is embodied in the ratio p/q" (1961 a: 7 f., 11 L).

While this is, in my view, a fruitful way of approaching the elements of social organization, it does not yet teIl us by reference to what the relationships are to be selected. In other words: On the basis of what assumptions are the "interconnected facts that express a particular principle of social mechanism" conceived of as a "cluster" or an "isolate"? A general framework into which Leach' s ideas can be and indeed have been built, has been provided in Goldschmidt's essay Comparative Func- tionaZism (1966). Goldschmidt, following Aberle et al. (1950: 100 ff.), caUs for the comparison of what he caUs "social functions", "that is the actions requisite or desirabIe for the self-maintenance of the social system", which are defined by reference to problems with which every human society is faced (1966: 33,31). These universal functions are derived from a model of society which is based upon general assumptions about the nature of man and human society. The model of society operates within a field which is constituted of three basic parts: The psychobiological character of man, the ecosystem, and the temporal dimension (1966: 33). By his cultural mode of life man is enabled to develop and to pass on complex forms of behaviour and to collaborate for mutual assistance and protection in large organized entities (1966: 57). These characteristics enable us to caU elements of social organization "instrumentalities" and the instrumental role leads to the notion of functional requisites (1966: 57). Goldschmidt indicates two general and rather broadly defined classes of functions:

ASSUMPTIONS 17

1. Those relating to human needs like obtaining food, providing shelter etc.
2. The provision of the ins ti tutional machinery to maintain the social system as a system (1966: 58). The distinction between these two classes of functions is difficult if not impossible to draw; this' is, however, not crucial to our problem. Primarily, the study of social organization demands the decomposition of the second class of social functions into specific ones, which obtain their specificity by reference to a particular problem with which each human society is confronted. The unit of study is thus no longer defined with reference to institutions but rather with reference to social functions which may be fulfilled by different institutions in different societies. This field of study closely corresponds to what Fortes calls "domains" of social organization (1970 a: 95 ff.), which are conceived of as socio-spatial sectors of social organization (1970 a: 97). Each such sector, as Fortes puts it, "comprises a range of social relations, customs, norms, statuses, and other analytically discriminabIe elements linked up in nexuses and unified by the stamp of distinctive functional features that are common to all" (1970 a: 97). However, these sectors, as I visualize them for the purpose of my study, are abstract frames of reference. They receive their distinctive functional feature by reference to a universal human problem, not through reference to the empirical reality of the elements filling them. The sectors are analytically discrete; the empirical elements, however, are not. The sectors can be thought of as exclusive and complementary, but what is within a sector need not be exclusive -is not "either red or blue", as Fortes puts it (1970 a: 97). The functional requisites filling one sector may weIl fill another as weIl. For the purposes of my study, domains have the methodological role of providing analytic frames of reference for cross-cultural generalization, not the role of isolating empirical phenomena. In a later section of this chapter, I shall try to delineate the social functions of property and inheritance on this basis. It must, of course, be admitted that in naming social functions or domains of social organization, one cannot escape completely from ethnocentric bias. Such bias is probably inevitable. 5 The advantage of the approach, however, is clear: The concepts denoting institutions are de-reified, and the Leachian resignation, expressed in his 1955-paper on the definition of marriage (1961 a: 105), is turned into a positive model.

PROPERTY IN SOCIAL CONfINUITY

B. SOCIAL ORGANIZATION: lliE RESTRICfION OF SOCIETY'S MEMBERS' AlITONCJ.1Y Social and legal anthropologists are mainly concerned with the second class of functions mentianedabove: The provision of the institutional machinery to maintain the social system as a system. The way in which society's members solve the organizational problems of maintenance through their thoughts and actions is the empirical social organization. As Goldschmidt put it, social organization ''nrust be seen as the means by which the ego-centered psychobiological needs of the individual are both given satisfaction and held in check •.•, for these ego-oriented needs can only be attained in a social interaction system" (1966: 59). Social organization involves the essential conflict between self-in~st and community-interest (1966: 132). Thus conceived, social organization is, of course, a relative conception. It mediates bètween the self-interest of society's members and the interests of the community, but the way in which it does 50 differs significantly from society to society. Some criteria by means of which we can differentiate the various forms of social organization will be discussed below. In each society, however, whatever its organizational structure, social organization always indicates the reZative degree to which the autonomy of 50- ciety's members is recognized and restricted. The extremes, complete individual autonomy or complete restriction of individual autonomy, cannot exist in human society. The degree of recognition/restriction of autonomy, of course, varies considerably in the various fields of social life. The relation of the individual to the social entity of which he is a member is also relative in another meaning: \~en we speak of a social system or a society, we generally think of an entity which itself is autonomous in relation to more inclusive groups, and within which the individual members' autonomy is restricted and recognized. But in fact, each social formation which we call society is not just structured as a composite of individuals but has less inclusive social formations, which mostly have group-character. In relation to its individual members, these groups in many aspects represent the entity in which the members' autonomy is restricted and recognized, whereas in relation to the other groups and the more inclusive entity, the group itself is the entity whose autonomy is recognized and restricted. Borrowing Moore's words, we can better speak of "semi-autonomous" groups (1973: 722). 6 The conceptualization of the social formations in which the members'

ASSUMPTIONS 19

autonomy is recognized/restricted in terms of groups is, of course, only one if the most frequent and important paradigm of human social organizational forms. There are other formations with less weIl defined bound- aries and with less continuity, which in anthropological terminology go under the names of quasi-groups, action-sets or networks,7 and which also mediate between the individual and the more inclusive social entity. It is therefore more appropriate to speak of "semi-autonomous sodal fields" (Moore 1973: 722). Thus when we speak of societies or groups we should always keep in mind that a) in each society the restriction and recognition of individual autonomy is mediated through semi-autonomous groups or quasi-groups, and that b) the entities of which we speak of as societies in most cases are semi-autonomous groups themselves, whatever their claim to independence or sovereignty may beo In the contemporary historical period with its extended supra-national forms of organizations and networks, all societies in some respect are semi-autonomous in relation to world society.

The main instruments by which a society's members solve their organizational problems are institutions. They come into existence when people feel recurrently faced with the same or similar problems; then their mental and physical activity tend to become habitualized. The standard social process by which the problem is to be solyed, its consequences, the values connected with it, and the status of the participants become set in conceptions which state what things are and why they are what they are (cognitive conceptions) and which state how things should, may, or must be or have been (normative conceptions). Institutions lay down generalized channels of problem-solution in te~ of cognitive and norma- ti ve conceptions. Wi th Berger and Luckmann we can speak of "reciprocal typifications of habitualized action by types of actors" (1967: 72). To a great extent, human activity can be made meaningful by its relation to the institutional conceptions. The relation can be either negative or positive. It is positive if the relevant human activity is conceived of as "falling within" or "being in accordance with" the institutional conceptions. It is negative, if it is conceived of as "deviat- ing from", being "not in accordance with" or "in violation of" the institutional conceptions. Non-habitualized behaviour to a great extent is made meaningful through typification,'too. The typified but statistically untypical behaviour usually is not related to institutional conceptions but is,

IN SOCIAL CONrlNUITY

cognitively, contrasted to the totality of human behaviour and, norma- ti vely, to the underlying values pertaining to human behaviour in general. Thus "killing" in most societies is a typification of behaviour which is not usually habitualized and institutionalized. This typified, but atypical behaviour is contrasted with and related to the notion of "not killing". Typified atypical behaviour constitutes a problem in each society, and all societies have developed institutions to deal with it. But it is not human activity Qnly, which is made meaningful in terms of cognitive and normative conceptions. The human mind tends to bestow meaning upon any kind of occurrence; or rather, on anything that it perceives as a set of facts or "situation-image" (F.v.Benda-Beckmann 1976: 362). In most instances, such situation-images will be constituted by human behaviour, but they mayalso be formed by occurrences in human life, like birth or death, which are not generally subsumed under the concepts "behaviour" or "activity". Situation-images may further be constituted by the presumed activity of non-human or supra-human beings like gods, demons, witches, animaIs, or nature. In most societies, there is a definite tendency to attribute these occurrences, too, to the behaviour of humans by means of conceptions of causation and the allocation of responsibility, which may differ significantly from society to society (for a recent collection of pertinent examples see Gluckman (ed.) 1972).

All cognitive and normative conceptions by which human experience is explained and ordered are products of the human mind. Once made public (or "externalized" in the terms of Berger and Luckmann 1967: 78) they attain a reality of their own in that they confront their original pro- ducers and other addressees as a "facticity" external to and other than themselves (Berger and Luckmann 1967: 78 f., Berger 1973: 14, who call this "objectivation"). Once objectified in this way, they act back upon society's members. Each individual is born and socialized in a society with an already existing body of cognitive and normative conceptions, part of which are "transformed into structures of subjective consciousness through the process of internalization" (Berger 1973: 14). Through making their own conceptions public and thereby objectifying them, 50- ciety's members develop a system of cognitive and normative conceptions through time in a dialectical process of externalization, objectification and internalization, reproducing it or changing it through their own innovative ideas and actions.

ASSUMPTIONS 21

The conceptions referring to habitualized courses of activity channel behaviour into one direction; thàse referring to non-habitualized typified activities keep human behaviour from going in that direction. In the most general manner it can be said that such conceptions imply aontrol. The controlling character is inherent in the conceptions as such, prior to or independent from any mechanisms of sanction specifically set up to support them (Berger and Luckmann 1967: 72, Fried 1967: 9, 13). These mechanisms, the sum of which is generally cal led a system of social control,exist in most societies; their controlling efficacy, however, is of a secondary or supplementary kind (Berger and Luckmann 1967: 72). This is weIl supported by the ethnographic accounts of 50- cieties in which these institutions are developed only to a minima I degree and which yet have a de fini te and weIl functioning social organization (compare Fortes and Evans-Pritchard (eds.) 1940, Middleton and Tait (eds.) 1958). These mechanisms themselves constitute a field of "reciprocal typifications of habitualized action by types of actors", a social function which is the society's institutional answer to the universal problem of conflict and dispute. This is not to imply, of course, that human thought and action are aetually-exclusively or even predominantly -restricted by those predefined conceptions which face the individual member as an "external facticity" in the social reality into which he is bom and in which he lives. The individual's autonomy is restricted by his psychobiological character, by what he has internalized, and in the daily interaction with his co-members; in particular, through specific social processes in which he is threatened with or directly affected by physical, economic, or psychological sanctions. Yet what he internalizes is largely prestructured by the kind of conceptions which exist in his society. In a given situation, the individual will be influenced by all conceptions which he has transformed into structures of subjective thought and not only by those which refer directly to the concrete situation and the action-alternatives indicated by the conceptions for this concrete situation. Besides, the individual may be faced with situations for which no conceptions have yet been objectified and where he must con~ struct new concept i ons or derive them from the already existing ones. And even when concept i ons are provided by the preexisting system, that does not preclude the individual from creating his own innovations. The body of conceptionsexisting in a society may further be illogical or contradictory, in which case the individual is forced to make choices between them.

PROPERTI IN SOCIAL CONrlNUITI

To summarize: Social organization and the conceptions through which it is expressed always restrict society's members' autonomy to behave and to construct cognitive and normative conceptions by themselves. But it is always relative. To differentiate the morphology of the various forms of the restriction/recognition of society's members' autonomy, four criteria seem useful, which I call here 1) the degree of institutionalization, 2) the referent of institutionalization, 3) the complexity of institutionalization, and 4) the mandatoriness of institutional conceptions. I shall briefly outline what I mean by these criteria.

1. The Degree of InstitutionaZization The degree of institutionalization indicates the degree to which the cognitive and normative conceptions are predefined in a society. Seen from the point of view of society's members, it indicates the degree to which they are free -in terms of the predefined conceptions-to establish their own or new conceptions.
2. The Referent of InstitutionaZization Institutional conceptions lay down predefined patterns for problem solution in a very general manner. Two different kinds of conceptions can be distinguished: Those which refer te the processuaZ f01'l7l of the activi ty- sequence which is society's answer to the social problem and those, which refer to the substantive content through which the problemrsolution is to be explained and justified. The former I shall call procedural conceptions,8 the latter substantive conceptions. Even if a clear cut analytical distinction cannot always be maintained, the distinction is of great importance in social reality, where it usually is drawn and where the different conceptions affect the autonomy of society's members in a very different manner (Geiger 1964: 233 ff.). Society's members may be strictly bound by procedural conceptions but relatively free to construct their own substantive conceptions in the prescribed process-a situation known from many traditional societies, where the substantive conceptions have a vague and undifferentiated character such as "truth", "justice", "reason", or "the unity of the society".9 In other societies, like in most contemporary western societies, the body of substantive conceptions is llighly systematized. Here the autonomy of society's members is restricted to a larger extent by the substantive conceptions, whereas the procedural ones have lost in importance.

ASSUMPTIONS 23

3. The Complexity of InstitutionaZization Complexity means the degree to which the requisites for one soclal function consists of a diversity of institutions. In most societies, the social reality is not 50 simple that there would be just one institutionalized solution for one social problem. Generally, we find a much more complex arrangement of institutional requisites. These arrangements may be of different kinds:
a. The institutional requisites may be arranged diachronically in the
way that for the solution of one social problem several successive institutionalized forms of activity must be followed, each of which only ful- fills a part of the problem-solution. This kind of arrangement is of ten used with respect to the social function of "marriage", e.g. with respect to the ten classes of rights enumerated by Leach (1961 a: 107, Goldschmidt 1966: 93 f.).

b. The arrangement mayalso be synchronie in that alternative insti-
tutions are provided which all fulfill the social function and between which the society's members may be allowed to choose. This arrangement is also known in marriage, where e.g. the individuals can choose between the traditional forms of marriage, marriage by elopement, or marriage in court, as is found in many African societies. It is also common in inheritance, which can be effected through unilateral dispositions, contractual agreements, or intestate inheritance in many societies. TIlis complexi ty may obtain wi thin one body of conceptions which is conceived of as a distinct system; but there mayalso be several of such systems each of which provide cognitive and normative conceptions and institutions for what mayor should be done by society's members. These forms of complexi ty are usually called ''horizontal pluralism," (Nader and Yngvesson 1973: 904) which one can further differentiate in system-internal pluralism and pluralism of systems (cf. Smith 1969, F.

v.Benda-Beckmann 1970, v.d. Berghe 1973, Hooker 1975). The empirical manifestations of pluralism are manifold. Pluralism may pertain to the whole field of social activity, to particular social functions only, or even to just some aspects of social functions such as the standards of validity or permissible behaviour. It may be restricted to procedural conceptions, where different procedures may all carry the same consequences in terms of substantive conceptions. Finally, there may be different degrees of complexity for cognitive and normative conceptions (see Berger and Luckmann 1967: 127).

PROPERTY IN SOCIAL CONfINUITY

4. The Mandatoriness of InstitutionaZ Conaeptions Conceptions, normative conceptions in particular, can further be differentiated according to the degree to which they are rnandatory for 50- ciety's members. MJore, criticizing the "apparent mandatoriness" with which legal rules are of ten indiscriminately characterized by legal anthropologists, has argued that one should distinguish at least two kinds of rules. She propos es that the distinction between preferential and prescriptive rules elaborated by Needham (1962) with respect to marriage, should be extended to other rul es (1969: 399 f., on the distinction cf. Lounsbury 1962). This point has important theoretical implications for the anthropology of law, as the corrnnon "rule -deviation -sanction" -cliché, through which law is characterized by most legal anthropologists, cannot be successfully appended to rul es which are not either prescriptive or proscriptive. However, I think that at least four different kinds of conceptions can be distinguished:
1. Prescriptive Conceptions : Conceptions are prescriptive, if a situation image must be evaluated in its terms, and/or if the consequences attached to the evaluation of a situation image must follow from it.
2. Facultative Conceptions: Conceptions are facultative, if in a given 5 ituat ion, there is more than one set of predefined conceptions and where the choice of one among them is prescriptive.
3. Optional Conceptions: Conceptions are optional or dispositive, if in a given situation society's members are free to choose an existing set, or between several existing sets, of predefined conceptions or to substitute them by their own conceptions.
4. Options: Options are what I call those predefined conceptions which put an individual into the position in which he may exercise his autonomy in a way which restricts the autonomy of others. Whereas the exercise of the option is free, the consequences attached to the exercise of the option are prescriptive.

ASSUMPTIONS 25

C. LAW

I. TI-IE TERMINOLOGICAL PROBLEM

Law is a particular way of restricting society's members' autonomy. Most writers agree that law is a form of social control, that it is essentially normative in character, and that it denotes what I call objectified

. 10
conceptlOns. Beyond these premises, disagreement starts. The definitional battles on the field of law are notorious and their results have been depressing. Despite the serious efforts of eminent social anthropologists (not to speak of lawyers and legal sociologists) none of the definitions offered has found general acceptance in social science. This failure can be traced to two main reasons. 1) The semantic implications of the word law are 50 manifold and the social phenomena subsumed under it 50 complex, that it seems impossible to comprise them all in one definition. This insight led several leading theoreticians like Frank and Llewellyn to abstain fro~ further attempts to define law. 11 2) Most definitions offered 50 far have recourse to normative criteria, legitima- cy in particular. As these criteria differ from society to society, the definitions given proved to be inadequate for a concept aiming at comprising the same social phenomena in different societies. That these definitions ~ay be barring a road which anthropologists need not travel has been convincingly put by Pospisil. They "stem from the false assumption th at concepts are objective as are phenomena" (1971:

39). To quote Pospisil: "Lawas a theoretical and analytical device is a concept which embraces a category of phenomena (ethnographic facts) selected according to the criteria the concept specifies. Although it is composed of a set of individual phenomena, the category itself is not a phenomenon -it does not exist in the outer world. The term 'law' consequently is applied to a construct of the human mind for the sake of convenience. The justification of a concept does not reside in its existence outside the human mind, but in its value as an analytical, heuristic device" (1971: 19). Unfortunately, the heuristic value of the concept law has mostly been confused with methodology. Since Hoebel (1954) a great deal of the theoretical discussion ab out law has been framed in terms of methodology and led to the conception of the ''methodological triad" : the study of abstract rules (the so-called ideological method), the study of behavioural rul es (the so-called descriptive approach), and the study of trouble cases (the so-called casuistic approach) (see Hoebel 1954: 29 ff., Pospisil 1971: 18 ff.). This framework presupposes that "law" wil! be found once

PROPERTI IN SOCIAL CONTlNUITI

the best method to find it has been devised, an assumption which is as naive as it is wrong. Methodology, in principle, presupposes a predefined object; the object is not to be defined through methodology.12

As I see it, the anthropologist deliberating ab out which meaning to give to the concept of law is faced with three main alternatives, all of which have been followed by previous writers, although they have usually been stated in different terms:

1. He can relegate law to a domain of social organization. This approach is still dominant in contemporary legal anthropology and it is closely connected with the casuistic approach. It becomes evident in "the trend to focus on process rather than on the organization and structure of institutions" (Nader and Yngvesson 1973: 884); social process for most writers being synonymous with the processes of dispute settIement and conflict resolution. The approach is best illustrated by the followers of the case-methods, no matter whether they focus on the social process of conflict resolution as extended case (like Gulliver 1963, 1969, 1973) or whether they focus on the exercise of legal authority (like Pospisil 1958, 1971) or the sanctioning of rules (like Hoebel 1954).
2. The second alternative is to reserve law to those forms of normative conceptions which are particular to a specific form of political organization. In these, generally evolutionistic,approaches law is defined as "an emergent system of social control that develops in. response to the need to regulate behaviour attendant upon the expansion of the community and the decline in effectiveness of kinship" (Fried 1967: 149). The proposed development from egalitarian societies to the state (Fried 1967), or from kinship-based communities to the class-structured polity (Diamond
   1973) is here reflected in the development from "custom" to "law". This approach, going back to Maine and Durkheim, is best exemplified in contemporary anthropology by Fried (1967) and Diamond (1971, 1973).
3. The third alternative is to treat law as an "aspect" or a "dimension" of social organization which is inherent in all social institutions; which pertains to all domains of social life and which is analytically divorced from the social processes which produce, apply, or enforce it. This approach goes back to the writings of Vinogradoff (1914} ànd Malinowski (1926) and has slowly been gaining more adherents like Gluck-

ASSlMPTIONS 27

man (1973 a), Barkun (1968), Moore (1970), and Nader and Yngvesson (1973) .13

In my view, this last approach offers the relatively greatest analytical and heuristic value for the anthropological study of law, and I shall adopt it in my study. I shall speak of law as an aspect or a dimension of social organization, which pervades all domains of social life. What I have said 50 far about social organization and the institutions with which it works holds true for law as weIl. Law is a dimension of the cognitive and normative conceptions through which society's members' autonomy to behave and to cons truct their own cogni ti ve and normative conceptions is restricted and recognized. However, such a general circumscription of law is, of course, still insufficiently clear for a distinction between law and other kinds ofsocial control or conceptions. The concept must be specified through additional criteria, and I shall try to specify these criteria in the following section. Such specification in my view must concentrate on the character of the cognitive and normative conceptions. The evolutionary-typological approach and the domain-casuistic approach have failed to elaborate these specific characteristics and have stressed the importance of other criteria instead, such as the morphology of the political organization, of the administrative and governmental domain in particular, and on the social processes of sanctioning, which has led to the "rule-deviation-sanction" cliché with which legal anthropologists are usually operating. Although these criteria undoubtedly are important for a proper understanding of the working of law in society, the insistence upon their inclusion into the definition of law has led to the many inconsistencies which surround these definitions and.which minimize their analytical value. In the next section I shall elaborate what I shall understand to be "law" in this study. I should like to make it clear in the beginning, that my primary concern is with the specific characteristics of conceptions and not with the definition of the concept of law. I call these cognitive and normative conceptions law, for I think that they most appropriately characterize those social phenomena which are usually labelled law. But if the reader should be offended by my usage I would rather drop the term law and keep to the conceptions indicated as a distinct and analytically useful category. In this study, I cannot, of course, review the immense literature on the topic of law; all 1 can do is to indicate en passant where my concept ion is derived from the ideas

PROPERTY IN SOCIAL CONrINUITY

of others, where it is fundamentally different, and why I think that the concept ion used in this study has a greater analytical value.

Ir. 1HE CONCEPT OF LAW USED IN THIS S1UDY

1. The Specification of the Concept Law consists in the objectified cognitive and normative conceptions by means of which a society recognizes and restricts its members' autonomy to act and to construct their own cognitive and normative conceptions. With law, situation-images, i.e. facts as construed by the participants (see F.v. Benda-Beckmann 1976:362), are evaluated for relevance. Relevance means that definite consequences, in terms of cognitive and normative conceptions, are attached to and rationalized by reference to this evaluation. Empirically, law is manifest in two basic forms: It is expressed in a general way (general law), referring to a typified situation-image and its consequences in general, and it is expressed in concrete situations where a concrete situation-image is evaluated for its consequences (concrete law). If manifest as genera 1 law, the legal conceptions usually are combined in the form of a conditional program of the "if-then" character; if manifest as éoncrete law, the legal conceptions are usually combined as a rationalization program of the "as -therefore" character. Let me briefly explain this condensed circumscription of law in more detail: To begin with, it is important to note that law comprises both cognitive and normative conceptions. In other words, law is not only concerned with the consequences following from certain situation-images, but it also contains conceptions determining the facts from which the consequences follow. Normative conceptualizations always imply certain cognitive presuppositions (Berger and Luckmann 1967: 127), and legal conceptions to a great extent determine the way in which situation-images are constituted (see also Barkun 1968, Cancian 1975, Gluckman 1973 a, Moore 1969, Von Wright 1974).14 Law may define what a "son", a "thing", or a "father" is in relation to specific consequences. The study of cognitive concept i ons is of great relevance for the study of law. A comparison of the normative rules about killing, for instance, makes little sense unless one knows what constitutes the situation-image of "killing" in the respective societies (cf. F.v. Benda-Beckmann 1976: 362 f.). The

ASSUMPTIONS 29

whole body of causal hypotheses and the conceptions relating to evidence are usually constructed as cognitive conceptions. I do not want to insinuate that legal anthropologists have not considered this part of law in their descriptions and analyses of ethnographic data; on the contrary, there are some excellent accounts. But it is usually not taken into account when anthropologists construct their legal theories. The anthropological and sociological theories on law which hinge on the "rule-deviation-sanction" principle are clearly inadequate to include the cognitive aspect of law within their frameworks (cf. Von Wright 1974: 137).

In law, situation-images are evaluated for relevance. A set of facts as construed by the participants is judged for its consequences, i.e. whether or not, and what kind of, consequences are to be attached to it. If definite cognitive and/or norrnative consequences restricting society's members' autonorny are tied to the evaluation, the evaluation may be said to be legally consequential; it is non-consequential if no such consequences are attached. Relevance thus covers both forms of evaluation, consequential and non-consequential. To which extent the participants can employ already existent objectified legal consequences in the process of evaluating a situation-irnage for relevance is, of course, a matter not of theory but of empirical investigation. It depends on what I call the degree of institutionalization (see p. 22). The evaluation of situation-images for legal relevance operates with three main standards: the standards of permissibility and validity, and an indifferent standard. In the first case, situation-images, usually constituted by human behaviour, are evaluated in terrns of the permissibility of such behaviour, and the pertinent consequences (generally cal led sanctions) are attached to the evaluation or not, depending upon its consequentialor non-consequential result. In cases of evaluation in terrns of validity, the situation-irnages are usually formed by cognitive and normativ.e conceptions constructed by society's members, such as a contract or some other "legal", i.e. legally relevant act ion or transaction. Evaluation in terms of validity means that the situation-image is judged for its validity and for its eventual further consequences as may be attached to it as an exercise of autonomous conduct. Both standards can, of course, operate together in the evaluation of one situation-irnage. Contractual agreements, for instance, in most societies are subject to an evaluation both in terrns of permissibility

IN SOCIAL CONfINUI1Y

and validity. What is generally pennissible need not be valid specifically and vice versa. Validity and permissibility are the dominant standards used in the evaluation for relevance. But there is another standard of evaluation which cannot be subsumed under validity or pennissibility, as it has no bearing upon the va lues and purposes underlying those standards. It can best be described as an evaluation in terms of relevance per se. A good example is the evaluation of death for consequences with respect to the property held by the deceased. Important consequences (inheritance) are attached to this occurrence, but by itself death cannot be judged in terms of validity or pennissibility. The dominant legal theories with their bias for the evaluation of human behaviour in terms of pennissibility usually content themselves with subsuming the process of evaluation and the attachment of lep,al consequences in terms of "sanction". This is often superficial as the distinction between validity and permissibility should always explicitly be made, but the concept of sanction can weIl cover both forms of evaluation and consequences (as in Vinogradoff 1914, 1959: 43 f.). But this "rule-deviation-sanction" cliché is wholly inadequate if cases of "simpIe" relevance are considered. Death has important legal consequences for property relationships which cannot be denied by any theorist. But how could death, in this respect, be considered a sanction-bearing act?

It is important that a clear distinction be made between conceptions which determine legal relevance and those expressing the consequences of such conceived relevance. This is weIl attested by the example of death and its consequences. The distinction is particularly important because different degrees of mandatoriness (see above p. 24) may operate in these two spheres of legal conceptions. Whereas behaviour constituting the situation-image may be evaluated in terms of prescriptive conceptions, the consequences attached to it may be facultative or optional. Conversely, the behaviour constituting the situation-image may be optional, whereas the consequences attached to it may be prescriptive. A striking example in ethnographic records of the confusion which arises if these two spheres are not kept apart is the discussion of prescriptive cross-cousin marriages. The notion of prescriptive cross-cousin marriage was quite unproblematic in those societies in which it was stated that one had to marry a cross-cousin, and also in those cases in which one had to marry into a category of relatives one sub-specification of which in-

ASSUMPTIONS 31

cluded one's actual cross-cousin. The evaluation of marriage would be done in terms of prescriptive conceptions and any violation of the prescription would have its consequences. 15 However, the difficulties arose when anthropologists discovered systems in which every man was married to a categorically defined person, but where this could be the result of two possible marriages. Either the spouse belonged to the category already before marriage or he/she only became a member of that category through the act of marriage. Although the spouses in the latter type of marriage have hitherto been unrelated, their and their group members' kinship statuses are adapted to the category, and new inter-group marriage relationships are established. This type of marriage was also named prescriptive cross-cousin marriage. Quite understandably it has been argued that the use of the concept "prescriptive marriage" was highly misleading, as the category of persons whom ego should marry was not prescribed (L"offler 1964: 218 ff.). It was therefore proposed to label such marriages' "taxonomie" in order to indicate the consequences such marriages had for future marriage relationships (Löffler 1964: 225). Though this characterization is useful, it does not fully reveal the distinction we are concerned with here, for the consequences of such marriage, the "taxonomie" effects, are prescriptive. 16

2. The Manifestations of Law Law becomes empirically manifest in two forms: As conceptions that evaluate a concrete situation-image for its concrete consequences and as conceptions which generally evaluate typified situation-images for their consequences. The general law is the predefined ins ti tutionalized law, the concrete law is the law for "cases". Wi th this statement I more or less follow Gluckman's conceptualization of law (1973 a: 227,325), although my concrete law covers much more than "legal rulings in processes in which cases are tried" (Gluckman 1973 a: 227).17 General law exists in all societies, but the degree to which it does and the forms it takes vary greatly. General law is institutionalized, predefined law; the degree to which such law exists in a given society must be ascertained with the help of the criteria by means of which the society's institutional arrangements can be differentiated (see above
p. 22 H.).

PROPER1Y IN SOCIAL CONfINUI'rr

In most contemporary western societies, there exist one or more bodies of conceptions, to a large extent laid down in written form, which contain very detailed and systematized procedural and substantive conceptions which pertain to nearly all fields of social activity. In other societies, and in particular in those studied by anthropologists, the body of general legal conceptions usually is less sys.tematized and less articulated in formulative rules (cf. Llewellyn and Hoebel (1941) on the near non-existence of detailed genera I substantive conceptions among the Cheyenne Indians). But there is hardly any traditional, tribal, or primitive society which does not have at least a body of general procedural conceptions relating to institutions such as marriage, property, the internal organization of the society, and the allocation of socio-political authority. In comparison with contemporary western legal systems, the main difference lies in the degree of the specificity of general conceptions. In all societies, legal conceptions must be specified so as to be applicable to concrete cases in the processes of law. But whereas in western legal systems this task is largely facilitated through a previous specification of the genera I conceptions, in non-western legal systems general conceptions usually consist more of very vague and unspecific conceptions, which makes the task of specifying them in order to fit a concrete situation-image more difficult. Conversely, the decision-makers in non-western societies usually have a much larger degree of autonorny vis-à-vis the general concept i ons than have judges in western legal systems.

In its concrete forms, law exists in all societies. In all societies, concrete situation-images must be, and are, evaluated for legal consequences. The characterization of the social processes, of the "cases", in which this is done is one of the central topics of legal anthropological theory. The conceptions applied, enforced,sanctioned etc. in specific social processes (trouble-cases, dispute-settlement, conflict-resolution) for many writers represent the only manifestation of law. In my view, these processes, although they are of greatest importance for the study of law and although they constitute one of the most important domains of social organization for the legal anthropologist, indicate but one manifestation of law. When we speak of "law in act ion" or of social processes which are "legal" we must begin with an important distinction between different forms of relating law to social process, which is sometimes hidden when

ASSUMPTIONS 33

the terms "legal process" and "legal ins ti tution" are employed. It is the distinction between events having legal consequences, which may take the form of a social process, and the social processes in which situation-images are evaluated for legal consequences. In fact, it is a distinction between two aspects of occurrences/social processes, for the activity concerned may display both aspects: The processes in which situation-images are evaluated for legal consequences always have legal consequences, the classical case being the social process of dispute-settlement. However, not all legally consequential events are also processes of evaluation, the classical cases being those "legally relevant" actions of society's members in the exercise of their autonomy. In the following, I shall be concerned with the processes of evaluation only.

Processes of evaluation for legal relevance are an institutionalized field of social activity. They are society's answer to problematic situation-images. The problematic situation-image, through the evaluation in terms of legal conceptions, is transformed into an unproblematic one, again unproblematic in terms of legal conceptions (F.v.Benda-Beckmann 1976: 367, Moore 1975, 1977: 159).18 What constitutes a problematic situation-image differs, of course, from society to society, and in most societies there is a multitude of typified problematic situation-images which must be evaluated for legal consequences even if "in reality",

i.e. by the pers ons concerned, no problem is perceived. The most obvious and frequent problematic cases are the social processes cal led dispute-settIement and conflict-resolution. Here, the factual situation, the appropriate standard of evaluation, the consequences to be drawn from such evaluation, or all these aspects together may be subject to conflicting interpretations by the participants or between some individual and an administrative agency in the society. These disputes or conflicts are resolved in terms of legal conceptions, which does not, of course, mean that the dispute or conflict would necessarily be completely resolved in practice -in the same way as institutionalizations do not necessarily restrict society's members' autonomy. But the problematic situation-image need not be that of a conflict or dispute. It mayalso be constituted by "uncertainty", if the participants, for instance, do not know what the consequences of a given situation-image should be and where the content of the situation-image is trouble-, conflict-, or dispute-indifferent (see also Moore 1970:280). These kinds of social processes, in which situation-images are retro-

PROPER1Y IN SOCIAL CONflNUI1Y

spectively evaluated for legal consequences -which we may call by the short fonnula "reactive law application" -however, are not the only forms of social processes in which law is applied to a concrete situation-image. In most societies there are also institutionalized processes in which law is applied "preventively", in which certain types of si tuation-images are evaluated for legal relevance, usually in terms of validity, before they actually become problematic. The most common instances of such preventive law application, both in western and non-western societies, are the validation of marriage, the affirmation of one's status as heir, and the validation of transactions over particularly important property. The evaluatory process establishes the validity of the trans act ion in terms of law, implying or explicitly stating that the consequences attached to the situation-image of a valid marriage, of a divorce, or of a valid transaction will indeed follow. Which pers ons or agencies are entrusted with the functions of reactive and preventive law application differs with the complexity of 50- ciety's socio-political organization and its system of roles of socio-political authority. In non-western societies, the task of preventive law application usually is in the hands of the personnel also being active in reactive law application, be they contending groups negoti- ating the evaluation and its consequences, be they family or community leaders acting as mediators, arbitrators, or as judges. In contemporary western societies, the function of preventive law application is entrusted to diverse offices of administration, the registry of marriages, to notaries, but also to courts. In Germany, for instance, the affirmation of one's status as heir must be obtained from a court, though this court is a different institution from the courts engaged in reactive law application.

Concrete law thus becomes manifest in social processes of evaluating situation-images for legal consequences. In all the social processes discussed above -in the reactive evaluation of conflicting or conflict-indifferent situation-images as weIl as in the preventive evaluation-essentially similar concept i ons are employed. There is no basic difference between these processes as regards the degree to which the conceptions are explicitly articulated or implicitly acknowledged. There is also no basic difference as regards the effectiveness of the different kinds of evaluating situation-images for legal relevance (cf. J.F. Holleman 1973).19 I see no reason why the conceptions should not

be called by the same tem "law". Anglo-American legal anthropology wi th its emphasis on the "trouble-case", on the processes of dispute settlement as the only fonn of law application, has more or less neglected the other forms of law application. This restriction of processes of law application is unfounded. Only recently, Moore has pointed out that what I call conflict-indifferent processes of evaluation and preventive law application '~ave seldom, if at all, been treated as a topic related to processes of dispute-settlement" and that they "certainly merit this treatment" (1970: 280). It should therefore be stressed, that these forms of law application have since long been elaborated by the Dutch scholars of Indonesian adat law, in particular by Van Vollenhoven (193J: 247 ff.),

F.D. Holleman (1920), Logemann(1924), and Ter Haar (1930, 1934a, 1937,
1941). In his analysis of those land transactions in Toeloengagoeng which had to be carried out in the presence of witnesses and the village head, Holleman had discerned three interrelated functions of these processes:
1. The guarantee (voorzorg) that no present or future interests are violated through the transaction.
2. The sanction that the transaction is valid in law.
3. The creation of evidence and legal certainty for the future (1920: 293ff.). The notion of "preventive law care" (preventieve rechtszorg ) was first verbalized by Logemann. In his words, the idea of preventive law application means the guarantee that what happens (the transaction) contains no violation of law (1924: 128) -law being understood as both the objective law of society and the subjective legally protected rights. Finally it should be stressed that Ter Haar, the most important theore- tician of adat law, had included the "judicial decisions without dispute" as constitutive elements in his definition of law besides the judicial decisions taken in processes involving disputes -weIl before the "case-method" had been received into legal anthropological theory in England and America (Ter Haar 1930, 1934a, 1937, 1941; Van Dijk 1948;
J.F.Holleman 1973; for a concrete example see Ter Haar 1939: 87).20 The empirical manifestations of law in the fom of genenliand concrete law, are,of course, quite different social phenomena. 21 These different kinds of social phenomena are both called law, as they are manifestations of one analytically determined kind of cognitive and normative conceptions. Against such a kind of definition, criticism has

PROPERTI IN SOCIAL CONTlNUITI

been levelled, and I shall therefore briefly justify it in relation to this criticism. With regard to Gluckman's conceptualization of law, which is in this respect similar to mine, Pospisil writes: "One may criticize this modified casuistic approach and dualistic definition of law on the basis of logical inconsistency. Since the rules that ought to be enforced of ten deviate in a remarkable way from the principles that are actually enforced in legal decisions, one can hardly call both sets of principles which sometimes differ to the point of contradiction, by the same term, 'law'" (1971: 33). Though Gluckman may be criticized for not making the logic underlying his concept ion explicit enough (Hooker 1975: 42), the logic is there, and I claim that it is the logic which I have tried to outline in this chapter. In my view, the logical inconsistency rather is inherent in Pospisil's concept ion of law and in all those conceptions which decIare law to be exclusively those rules which are sanctioned in troubl~ cases. For one, Pospisil himself has taught us that concepts are not social phenomena per se but are designed to categorize different social phenomena on the basis of some characteristic properties. That concrete law and general law are different social phenomena which may not only diverge but cannot coincide (Gluckman 1973 a: 325, Moore 1969: 377) is obvious, but that does not mean yet th at they do not have the same characteristic properties. That general law and concrete law have the same characteristic properties, the evaluation of situation-images for consequences, I hope to have demonstrated in this chapter. That their different character as social phenomena be recognized, on the other hand, is crucial for the understanding of law. It is here that we find the basic fallacy of the theories which focus on cases: The confusion of general and concrete law. When speaking of "law application", I mean that the legal conceptions established for concrete situation-images are derived from and legitimated by reference to general conceptions. That it is not the "same" law that is applied is obvious. That the concretization of general conceptions is not purely the finding of the preexistent law -as was held by the traditional western doctrine -but that it usually amounts to the specification of new conceptions and of ten to the creation of new law, has been long recognized by lawyers in most westanlegal systems. In non-western societies, the processes of reactive law application can even less be considered an application of predefined general conceptions; for such general conceptions may not yet exist. On the contrary, the autonomy of society's members -individuals or administrative agencies -

ASSUMPTIONS 37

to construct new conceptions may be explicitly recognized in the society's doctrine of decision making. This body of general conceptions referring to the procedural aspect of decision making, may state that the conceptions constructed for concrete cases must be derived from conceptions which have been previously applied to similar concrete cases~-i.e. that the conceptions applied to concrete cases shall have general character. This is the doctrine of Anglo-American law. Law being embodied in cases, the conceptions ap~lied in concrete cases should not only evaluate one concrete situation-image but aim to evaluate future situation-images as weIl. By this doctrine, concrete law is transformed into general law. Many anthropologists have implicitly included this or other trans-format ion-doctrines in their analytical concept of law. As law, in the casuistic approach, is defined by reference to concrete cases of decision making or sanctioning, no general legal conceptions can be found at all unless these concrete conceptions are invested with a general character. With Hoebel, legal norms receive their general character through concrete processes of quasi-retrospective sanctioning on the presupposition, that the norm, as statistically dominant behaviour in typified situation-images, has general character already before the sancti on (see Hoebel 1954: 14 f.). With Pospisil, the concrete conceptions receive their general character through the attribute of the "intention of universal application" for the future (1971: 78 H.): If taken seriously, this attribute would even "beat" the Anglo-American doctrine of precedent, which at least makes a distinction between the ratio decidendi, the part of the decision which is to be general law in future cases, and the obiter dictum, that part of thedecision which need not be followed in later cases. That the inclusion of such an attribute into one's analytical concept of law may create general legal conceptions where there are, due to a different doctrine for decision making, none, is obvious. This unwarranted assumption has already been discussed by Dutch adat law scholars weIl before the case-method was received into Anglo-American anthropological legal theory. Ter Haar, in his well known "decision-theory" (bes Zissingenleer ) basically defined law as "judicial decisions in cases with and without disputes" (1934a, 1937). In his review of Ter Haar's lecture in which the decision-theory was finally developed (1937), F.D. Holleman criticised exactly this presupposition in Ter Haar's definition of law:

PROPER1Y IN SOCIAL CONTINUI1Y

''Mr. ter Haar's constructive idea is based upon the asst.nnption that it is part of the judge' 5 function that he gi yes the same judgement in cases where the relevant facts are the same. His judgement, formally binding in the concrete case, implies by necessity that it must be decided inthe same way in the future. As such, the judgement can be conceived of as a general rule and has importance for the future" (1938: 437). Correctly analyzing this asst.nnption as a matter of doctrine, Holleman concluded: '~ether this doctrine (dogmatiek) holds true for other legal systems I shall not judge here. But for the systems of the adat law (of ihe Indonesian societies) it seems untenable to me and not without danger" (1938: 437) .22 To include this asst.nnption into one's analytical concept of law distorts the social reality of the society one sets out to study. The anthropologist is better equipped with a concept of law which, though recognizing the similar properties of concrete and genera I law, also takes account of their fundamental difference as social phenomena.

I have located law, in all its empirical manifestations, on the level of objectified conceptions. These conceptions should not be confused with the social processes in which they are produced and manipulated, nor with the referents which serve as their legitimation, such as the willof the people, the command of the sovereign, traditional behaviour patterns, etc. The inclusion of these elements in the concept of law inevitably gives rise to confusion and distortion of social reality and minimizes the concept's analytical and heuristic value. It should, however, be self-evident that the social scientist aiming at a description and analysis of law can only do 50 by studying the social processes in which law is produced, manipulated, and applied. The study of these processes and their operative conceptions forms the indivisible microcosmos of legal anthropology. This microcosmos is not bound to one specific form of socio-political organization like "the state". Like most contemporary legal anthropologists writing in the tradition of Ehrlich (1913) and Weber (1921) 1 hold that law operates and is operated upon in all the social formations which have semi-autonomous character (cf. Van Vollenhoven 1918, Llewellyn and Hoebel 1941, Pospisil 1971, Moore 1973, Smith 1956, 1969).

D. 1HE SOCIAL FUNCTION OF PROPERTI AND INHERITANCE

I. PROPERTI: DCMAIN, OBJECT, AND RELATIONSHIP

In this study I am mainly concerned with one domain of social organization: the organization of property relationships. In all hurnan societies there are objects, material or irnrnaterial objectivations, that are regarded as having some value. The universal problem with which all societies have to cope is to regulate their mernbers' relationships to these objects. In all societies, the performance of this function is institutionalized to some degree and expressed in legal conceptions. In most societies, the institutionalization has reached a high degree, for property relationships provide one basic frarnework for economic life, they contribute significantly to the cohesion and continuity of social groups, and they are an important means through which positions of socio-political authority are acquired. In each society, there is production, and production "requires organizational devices and rul es to direct labour, land and other resources to specific uses. Resource allocation is never unstructureu because continuity in the product ion of basic goods is never unirnportant" (Dalton 1967: 66). Property does not only concern basic economic goods, but all goods, i.e. objects that are regarded as having value. It does not only concern the allocation and distribution of already existing goods but also the manner of allocating newly created goods, and the "appropriational movements" which involve changes in objects' relations to social roles (Hopkins 1957: 300). In the organization of property relationships, society's mernbers have to cope with and are restrained by the three basic factors which constitute the field in which all hurnan societies exist: the psychobiological character of man, the ecosystem, and the temporal continuurn. In each society, these factors become transformed into socio-cultural ones and therefore are culturally variabIe. Nature, hurnan nature, and time are conceptualized, and consequences, rnany of them legal in character, are attached to these conceptualizations. The content of the conceptualizations and consequences, and the economic use made of these factors, vary considerably from society to society, of ten changing natural characteristics beyond recognition. Land is irnrnobile, yet its products or the relationships to it can be transforrned into a highly mobile cornrnodity. Time is continuous, yet notions of time may be developed in which the continuous flow of time is stopped or declared irrelevant. Persons die, yet proper-

IN SOCIAL CONflNUITI

ty relationships may be held by the dead; or living persons may be regarded as incapable of holding property relationships. In the most general rnanner, property refers to the whole of instnnnentalities through which the relationships between society's mernbers and their valuable goods are regulated. When we speak of property and inheritance, property indicates the part of the instnnnentalities that regulate the relationships between the living members of society, inheritance indicates the maintenance of this regulation through time. This conceptual use is, of course, too general and it must be specified, and criteria must be offered by which the system of property and inheritance can be described and analysed in a more differentiated manner. When we try to refine our conceptual apparatus, we are again confronted with the same problerns and questions that we have dealt with in the first parts of this chapter. The approach developed there must be projected onto the domain of property relationships. This means, that we shall not be concerned with a definition of the institutions of property, ownership, and inheritance which are known to us from our own or other societies, but that we rather at tempt to isolate some analytical criteria by which we can better describe and analyse the institutions which we meet with in the society we study, and which are sufficiently abstract of culture-specific institutions in order to allow generalizations about the instnnnentalities of the function of property relationships in different societies. Again we cannot consider the vast amount of anthropological writings on this topic and shall only, in elaborating our conceptions, discuss those opinions upon which my conceptions are based or from which they radically differ.

Most a~thors trying to define property or ownership for anthropological purposes pay due hommage to Maine's statements, that ownership is a bundIe of rights (1883), and that ancient law does not sharply distinguish between the law of things and the law of persons (1905: 230, cf. Goody 1962: 285 ff., Gluckrnan 1972: 94, Bloch 1975: 204). Both statements reflect important aspects of property relationships, which lead directly to the analytical conceptions with which I shall operate. My consequences,however, to some extent are quite different from those which have been reached by other anthropologists. The reference to ancient law, which does not sharply distinguish between the law of persons and the law of things, is of ten followed by the remark "that prirnitive law rightly represents property relation-

41 ships as what they are: namely relationships between persons with respect to things" (Goody 1962: 287, Gluckman 1972: 113, Bloch 1975: 204), and "that the notion of property as a relation between a person and a thing is a contradiction in terms" (Bloch 1975: 204). These two statements are generally treated as if the lat ter would logically follow from the former, an opinion which is due to misconceptions about property law both in traditional and western societies:

1. The distinction between the law of persons and the law of things discussed by Maine refers to the degree to which the system of property relationships is divorced from the law of persons, i.e. the legal conceptions pertaining to the position of the individual, to group formation and to the allocation of socio-political authority. As Gluckman, following Maine, has emphasized, in tribal societies rights to land are an incident of political and social status (1973: 78), whereas in western societies this incidental character of the property relationships has been lost and the legal conceptions which de fine property relationships are conceptually and substanti vely di vorced from the law of pers ons, the result of what Maine cal led the movement from status to contract (1905: 151). Speaking in terms of domains, we would say that in primitive law the instrumentalities, the institutional elements in the domain of property relationships, to a large extent are the same ones that obtain in the domain of interpersonal relationships. Analytically, however, the two domains should be kept apart for the study of all societies, even where one institution performs several functions. For only on this basis can we determine at all whether, in a later stage of development or in a different society, the two fields of law as social phenomena or complexes of institutions, are divorced, i.e. whether distinct institutions perform the different functions.
2. The question of how property relationships are legally defined, however, is a different one. In many societies, where the law of pers ons and the law of things are not divorced, property relationships are predominantly expressed as relations between persons and things, or what Bohannan cal led the man-thing-unit (1963: 102). As we shall see, Minangkabau property law is one of the cases, where property relationships are an incident of social and political status, but where the dominant property categories are defined by relation to the property holders (see Chapter 4). Western lawon the other hand, and contrary to widely held

PROPERTY IN SOCIAL CONTINUITY

misconceptions2~ defines property relationships only to a very limited degree as arelation between pers ons and things: For one, there is the whole body of conceptions covering the law of obligations, which consists of relationships between persons with respect to things or immaterial goods, and which, although it is sharply distinguished from the law of things, certainly falls into the domain of property relationships.24 And also the rights to things, Iike ownership, are usually defined as relationships between pers ons with respect to things. The legal definition of ownership (Eigentum) in German law, par. 903 BGB, weIl expresses the right of ownership as the degree to which individual autonomy over a thing is restricted and recognized through general law and the complementary autonomy of the community's members: "The owner of a thing can dispose of it according to his wishes and can preclude all others from acting upon it, unless this is contrary to the law or the rights of third persons ". The misconceptions about western notions of ownership and property are probably due to the plural meaning these concepts have in western law. The German Eigentum, for instance, is legally defined as a relationship between persons with respect to things. This relationship confers upon holder and object of the relationship a distinct legal status, of EigentiJmer ("owner") and Eigentum ("owned object"), i.e. the same concept also denotes the object itself. Besides, the relationship itself is treated like a thing in law. In Anglo-American law, this plural meaning is rather attached to the concept of "property" and not to "ownership", which is generally treated as a relationship only. It seems to be the latter meaning, the reified notion of the relationship, which seems to come up when anthropologists discuss ownership and property. For in the reified concept, the relativity of the relationship,its restriction by the rights of other persons, is blended out: Eigentum remains Eigentum even if the autonomy of the individual (the relationship) is increasingly restricted. It is obvious that the anthropologist should not use one term to cover all these meanings.25 I shall therefore adopt the following conceptual usage: The relationships between societies' constituents with respect to material or immaterial objects that are regarded as having value, I shall call property reZationships, no matter whether they are reified or not and no matter what their specific degrees of recognitionj restriction of autonomy are.The objects, material or immaterial, to which such a relationship is attached or to which it pertains, I shall call property objects.I shall speak of the ZegaZ status of property

ASSUMPTIONS 43

objects with the understanding that it is not exclusively defined through the relationship which is attached to it. The pers on or persons to whom a property relationship is attached I shall call property hol- ders.

The social organization of property relationships involves the recog- nitionjrestriction of society's members' autonomy over property objects and it is expressed in general and concrete legal conceptions. In most societies, the members' recognized autonomy is conceptualized in the form of rights. These rights, no matter what their specific content may be, always express a relative degree of recognized autonomy. The restriction is, in all societies, manifest in the rights which are recognized for the other members of the community (cf. Hoebel 1954: 58 f.). But in all societies which have same farm of government which is vested in social roles and statuses, the restriction of all members' autonomy is further expressed through the rights which are vested in these positions of socio-political authority which, according to the constitutional legal conceptions, represent the community. These rights usually pertain to the most valuable property objects, particularly to the land on which the community lives, their territory, and that which provides the most important economic resources. Whereas the members' rights pertain to the use and the exploitation of the property objects, the rights of the socio-political authority usually refer to the outward-representation of the community in property matters (territorial matters) and, in relation to the community's members, to the ultimate control over use and exploitation in its various forms (for a more detailed statement about the Yoruba, see Lloyd 1959: 112). 1 shall call these two levels on which property relationships are expressed the level of socio-political authority and the level of use and exploitation. This distinction is not new, and most anthropologists report its empirical manifestations in the societies they study. It appears in different conceptual usages. Some authors speak of sovereignty and ownership (Lloyd 1959: 112, Vanderlinden 1969). Leach has described and analysed these two levels among the Kachin, where the socio-political control over a domain, vested in a chief, is cal led madu, and the usufructury rights are expressed by lu and sha, drink and eat (1954: 141). Leach translates them as "ownership in the sense of'having rights over something or some person'and ownership in thesense of'having and therefore being able to enjoy for the time being'" (1954: 142). Gluckman, following Sheddick

PROPERTY IN SOCIAL CONTINUITY

(1956), called the two levels "estates of aclministration" and "estates of production" (1972: 89 f.). In his analysis of the system of Barotse property relationships, Gluckman made an important point, which corresponds to the concept ion of semi-autonomous social fields which I have outlined in the first part of this chapter. He demonstrated how among the Barotse the level of socio-political authority consists of a series or a hierarchy of "estates of aclministration", through which the ultimate socio-political authority is mediated to the individual. In whom the socio-political authority is vested depends, of course, on the form of socio:".political organization. In Barotseland it is vested in offices, in other societies it may be vested in lineages or other corporate groups. In most contemporary societies, the situation is even more complicated by the fact of pluralistic systems of legal conceptions, which are of ten contradictory. This is the case in nearly all societies which have been united under a cornmon colonial or national political superstructure. The pluralistic legal systems may define different positions of socio-political authority and give a different content to the rights of the incumbents of socio-political authority as weIl as to the rights of the cornmunity's members in general.

The conceptualization of the two levels on which property relationships are expressed, and the recognition of the possibility that they may be subject to pluralistic definition, provide useful tools for description and analysis. They are one aspect of the bundle-of-rights metaphor in the sense that the bundle represents the full range of autonomy over property in a given community, which in each society must he divided into rights, all of which express a relative degree of autonomy. But the bundle-of-rights metaphor has another aspect, which provides us with another useful analytic instrument: It is the recognition that each of the rights, as conceptualized above, itself can be thought of as a bundle of rights. When property relationships are legally defined, there will always be,on both levels,one conceptualization of the most complete degree of autonomy recognized for society's members, like in the form of ownership in western societies. In relation to the complete range of autonomy, this right is one of the "bundle". But, as is usually done in legal systems, if it is treated as the most complete kind of rights, it provides the basis for the derivation of lesser· rights from it. The "full" relationship can be split into component ones, which are, however, dependent on and derived from the full relationship. In his analysis of

ASSUMPTIONS 45

property relationships on Truk, Goodenough proposed a systematic conceptual use to denote this, when he wrote: "Two basic forms of ownership must be distinguished. One of these will be cal led full ownership, be the owner a person or a corporation. It confers upon the owner what will be cal led a full title. The other divides a full title asvrnmetrically between two parties, either or both of whom may be individuals or corporations. This will be called divided ownership. It confers upon the owners two distinct titles, respectively, each characterized by different rights and duties. One will be called provisional title and the other residual title" (1951: 33 f.). I shall partly adopt this usage, and speak of residual and provisional property relationships; not of ownership as the latter concept implies an ethnocentric specification of a property relationship. However, additional clarification is necessary: Provisional relationships are by definition derived from residual relationships. But the notion of residual and provisional relationships is relative in 50 far that a provisional relationship is provisional in character only in relation to the residual relationship from which it is derived. In other relations, for instance in relation to alesser provisional relationship, it may have all the characteristics of a residual relationship. To give a common enough example: A, holding the (relatively) most complete right over land, pffi1nS the land to B. In relation to A, B is the holder of a provisional right, and A the holder of the residual right. However, B may give the land to C in share-cropping. In relacion to C, B then is the holder of a residual right. Finally, the distinction between residual and provisional property relationships may operate on both levels on which property relationships are expressed: On the level of socio-political authority and on the I eve I0f use an d exp Ioltatlon.·. 26

11. INHERITANCE: NON-RECIPROCAL DIACHRONIC TRANSFERS Part of the function of property relationships is the problem of maintenance of the system of property relationships through time. This problem is considerably aggravated by the fact that individuals die, whereas, at least in most societies, some or most of the property objects they held during their lifetime continue to be used by the remaining members of society. 27 When dealing with the instrumentalities by which societies cope with this problem, lawyers and anthropologists alike usually think in terms of inheri tance. In wes tem law, inheri tance

PROPER1Y IN SOCIAL CONfINUI1Y

is an institution which is defined in detail by legal conceptions. It signifies the transfer of a complex of rights and obligations from one person (the deceased) to one or more other persons (the heirs) at the time of the deceased' s death. This transfer occurs automatically in and through law. The kind of distribution of the deceased's property is al- 50 predefined by general law. Many legal systemsrecognize to varying degrees the autonomy of the individual property holder to direct the flow of property af ter his death in the form of unilateral declarations or contractual agreements. This institution of inheritance is a characteristic of all legal systems which have been influenced by the later Roman law. In this specific form it is by no means typical for human societies in general. In cornmon anthropological understanding, inheritance therefore refers to those social processes which follow the death of a person and which are concerned with the property he held during his lifetime, and to the cognitive and normative conceptions which refer to these processes. As Hoebel has put it, it is useful to conceive of inheritance as "the transference of statuses from the dead to the living with respect to specific property objects" (1954: 59 f.). When dealing with status-transfers, we again discover that in most societies, ancient law does not sharply distinguish "the law of pers ons from the law of things". The deceased's status with respect to property objects may be transferred, but his or her status as member of a kinship group ot the status of socio-political authority may be transferred in the same social process. Since Rivers we have been accustomed to distinguish inheritance, as the transfer of status with respect to property objects, from succession as the transfer of socio-political status, particularly if it is attached to an office. Most societies have developed institutions which fall under this rather flexible anthropological understanding of inheritance. Yet it is cornmonly acknowledged that the problem to which the institutions of inheritance are an answer, need not be solved at the time of or af ter the property holder's death but can also be solved at an earlier time. There is a wealth of ethnographic data which show how in some societies the transfer of property, or at least of a large amount of property, is effected before the death of the property holder(s), the classical examples being the Kalinga (Barton 1949) and the Nyakyusa (G. Wilson 1951, M. Wilson 1967). These property transfers, in which inheritance is anticipated,may be in the discretion of the property holder, but they mayalso be prescriptive as e.g. is the case among the Nyakyusa at the coming-out-ceremony (G. Wilson 1951: 287 ff., M. Wilson

ASSUMPTIONS 47

1967: 220). The cases of prescriptive property transfers during the lifetime of the property holders illustrate that the crucial chronological point in persons' lives, at which they lose or have to lose the capacity28 of being property holders is a matter of socio-Iegal definition. Death poses a natural problem for the continuity of property relationships, but that does not mean that death must be used as the crucial or the only chronological point in legal definition. The duration of a person's capacity to be holder of property relationships may be defined with reference to an event within their or other persons' lifetimes; on the other hand, their capacity to hold property, or some specified kind 29 of property, mayalso transcend death. The definitions of inheritance which focus on the status-transfer with respect to property objects at the time of death therefore do not provide a useful concept for cross-cultural generalization, as other transfers which we would want to include as "inheritance-like" are thereby excluded. Yet the need for a distinction between inheritance and inheritance-like transfers from all other forms of property transfers is generally acknowledged as ethnographically justified and analytically necessary. Not many anthropologists have addressed themselves to the problem of how such a distinction should be made; I shall discuss the one notabie exception, Goody in his Death, Property and the Ancestors (1962) presently. In my opinion, the distinction between "inhe.ritance-like" and other transfers should rest upon one characteristic: whether a return is given in the transfer which itself is valued as property. Transfers in which no return is given in all societies are treated differently from those where there is: They are conceived of as being "through time" and come closest to what anthropologists call inheritance in its widest sense. They are further characterized by the fact that a different degree of autonomy pertains to such "diachronic" transfers than to other transfers. But however useful this distinction between diachronic and other transfers is, it can never mark off a separate field of property relationships but must be subordinated to the more general question with which we are concerned, the maintenance of the system of property relationships throught time, time understood as the abstract continuum in which all human societies exist. In the following sections I shall explain this in some detail.

Related to the abstract continuum, to "stellar time" (Leach 1961 a:

133), in which all human societies exist, of course all holding of

PROPERIT IN SOCIAL CONTINUIIT

property and all transfers of property occur through time. The continuum in which societies exist is one inseparable aspect of the property system in general. But time is socially defined in each society. As Leach, following Hubert and Mauss (1909) has put it: "The idea of time ... is one of the categories which we find necessary because we are social ani- mals rather than because of anything empirical in our objectiveexperience of the world" (1961 a: 125). How time is conceived, however, varies from society to society.30 Each society develops notions of time which "flows", the concrete manifestations of which may be qui te different. 31 But each society also develops notions of time where this flow is ignored, and notions where the flow is halted, and which are conceived of as "timeless" and "presents" respectively. All social relationships are set into time. The various notions of time are also inherent in the conceptional system which pertains to property relationships and transfers. In each society, there are notions of property transfers which are considered to be "through time", in line with continuity, which in the following I shall call diachronie transfers. Other transfers are conceived of as being "in or at some time" or "within the same time", and these I shall call synchronie. The diachronic dimension of property relationships and transfers is, of course, not identical with abstract continuity. It only makes sense in contrast to the synchronic dimension, synchrony and diachrony being the two basic and complementary modes of relating property transfers to abstract continuity. When anthropologists speak of inheritance and inheritance-like transfers of property, they usually mean such diachronic transfers. Underlying this thinking is the implicit or explicit idea that the distinction between the temporal dimensions is defined by the lifetime of the property holder. When people try to differentiate their body of property law into a field of property and one of inheritance, they usual- 1y recur to this distinctive point. We have seen that als 0 most anthropological conceptualizations of inheritance rest upon this distinction: Inheritances are property transfers which are "through the time marked by the lifetime of property holders", property law in genera I is the organization of property relationships and transfers '~etween the living". Although this is, by all means, the easiest way to make thc differentiation, it does not correspond to thc differential treatment of property transfers in societies' legal systems. In my introductory remarks I have already drawn attent ion to the fact that it is not natural lifetime which could usefully mark the distinction, but the legal capa-

with reference to his lifetime or his legal capacity to be a property holder but through reference to his autonorny irrproperty affairs. The greater the recognition of individuality and individual freedom is in a society, the more wi11 "the present" play a role in the thinking in that society, and the more will continuity dirninish in irnportance. The less individuality and individual autonorny 1S valued, the more will diachronic thinking dominate. But in bath cases na final distinction can be drawn between the tempora 1 dirnensions with respect to lifetime or legal capacity conceived of in time. In contemporary western legal systems, individual autonomy is highly valued and the synchronic property law consequently occupies the prominent place in the whole system of property relationships. But when we look at the institutionalized kinds of property transfers, we see that the basic distinctian is made between property transfers which involve a return in property and those which do not, and that this distinction is manifest in different degrees of recognizedjrestricted autonomy. Even transactions, such as donations which are carried out and become effective during a property holder's lifetime and thus at first glance seem to be located in the synchronic dimension, in the end are judged in diachronic terms and can be invalidated retroactively.33 In traditional societies where individual autonomy is not that highly valued and where consequently no

IN SOCIAL CONTINUITI

systematized synchronic property law is conceptualized, the plausability of my analysis is even more apparent. As Derrett has said with respect to inheritance in Nigeria: "Succession (meaning the inheritance of property, v.B.B.) as an event happening at death is altogether foreign to Nigerian problems. We must be prepared for rules of succession appearing in the guise of restrictions upon alienation inter vivos" (1965: 5 f.). The implication is clear: The rules of inheritance, representing the diachronic dimension of property relationships in western thinking, are applicable between the living; i.e. a distinction cannot be made with reference to the individual members' lifetime, but only through reference to the degree to which their autonomy to dispose of property is recognized.

The instrumentalities through which diachronic transfers are effected are manifold and cannot be defined by their legal cloth. Diachronic transfers may become manifest in the automatic transfer of property relationships which we call intestate inheritance. They mayalso be effected by unilateral actions as testaments and donations, donations and testaments bath becoming manifest in contractual farms, toa, in many societies. Inheritance is of course the classic case. Such transfers are non-reciprocal as the original property holder af ter his death is not in the legal position to receive any contraprestation which is valued as property. Transfers which occur during the lifetime assume diachronic character when they are construed as non-reciprocal in terms of legal conceptions. The most common institution of this kind is donation, the "outright transfer of property relationships with na expectation of return in goods or services" (Goody 1962: 309). The question of whether donations should be treated as falling within the category of inheritance-like transfers at all, and if 50, what kind of donations should be 50 treated, has not aften been dealt with systematically by anthropologists. One of the few anthropologists who has proposed a systematic analytic treatment of donations in the context of inheritance is Goody in his study of property and inheritance among the LoDagaa (1962). In his discussion of inheritance, Goody has freed himself from the ethnocentric western notion of inheritance. He cautions his readers that he uses "the term inheri tance in a wider sense than some writers" (1962: 312) and propos es to call this "inheritance in the widest sense", "intergenerational transmission", or "devolution". He refers to societies in which property, or at least a substantial amount

Sl

of property, is transferred before the holders' death, and notes: "These examples show that even transfers made to the heir within the lifetime of the holders must be seen in the total context of intergenerational transmission. In the last analysis all such transactions can be considered as advance payment on the material heritage, and, whether they occur post mortem or pre mortem,they all can be thought as being made propter mortem'(1962: 279). For inheritance in the widest sense we therefore must consider "transfers of property from holder to heir during the holder's lifetime as weIl as af ter his death" (1962: 311). Up to this point I can fully share Goody's analysis. But Goody makes it clear that not all donations among the living are to be included in this extended meaning of inheritance. In principle, two kinds of property transfers are to be distinguished: alienations and inheritance. Donations are only treated as inheritance in those cases where they occur between the property holder and his heir(s), in principle, they are "alienations": "With donation, which is admittedly the limiting case, the position is different: from the analytical standpoint it comes closest to inheritance, and yet shou1d be usually distinguished from it as a form of alienation" (1962: 309).

This cannot be accepted, and certainly not for the reason that it is "usually" done. Goody himself has established the irrelevance of the chronological focus on the property holder's death and thus freed himself from the ethnocentric western distinction. Yet he proposes to substitute a criterion, the legal status of the recipients before the transfer, which is no less ethnocentric, in this case LoDagaa-centric: He is determined to restrict inheritance to property transfers at death and to those property transfers among the living which take place within the corporate kinship group (1962: 312). For a concept i on of inheritance in its widest sense, which is useful for cross-cultural comparisons and generalizations,-and this is Goody's aim, too -this distinction cannot be maintained. For if death is not the crucial chronological point upon which the distinction rests, and if donations among the living can be included in the category of inheritance, why should the distinctions be made with respect to the legal status of the beneficiaries of the donation? Asked differently: If the distinction is made with respect to the legal status of the beneficiaries, and if death is not the crucial criterion for the distinction, would not the same distinction have to be made with regard to donations which become effective before and af ter the property holder's death? This would be the consequence of Goody's argument, but this consequence is hardly tenable. For it would mean the

PROPERTI IN SOCIAL CONTINl.JITI exclusion from inheritance of all testamentary dispositions which are made for the benefit of persons not belonging to the corporate kinship group, or, in other legal systems, to persons not belonging to the legal intestate heirs. On this point, Goody's argument is inadequate. He con- cedes "that in many non-li terate societies wi th established rul es of inheritance, oral testaments that take effect at death can serve a similar purpose. Indeed, among the Ashanti, wills have been described as 'a fom of inchoate gift that takes effect at death' (Mateson 1953:

224)" (1962: 310). This reference, of course, would strongly indicate that such transfers should be included in the wider category of inheritance, but Goody is determined to have it otherwise: "Analytically, both modes of transactions provide standardized ways of alienating property from the corporate group. However, normally the individual is not free to make such gifts or testaments except with the approval of other members of the group, who are cal led upon to act as witnesses (Busia 1951: 125). It should be added that even where testa-
. mentary inheritance is the established practice, it does not necessarily follow that a man has free disposition of all his property" (1962:

310). This is quite true. But it does follow that he is free to dispose of his property to some extent by donations and testaments. And corresponding to this degree, the legal heirs or members of the corporate group become one sort of heirs beside the testamentary heirs. To exclude the testamentary heirs from inheritance would be absurd. In many societies, particularly in those which have been influenced by the later Roman law, the beneficiaries of testamentary dispositions are given exactly the same legal status of heir as the intestate heirs. There are even legal systems in which the making of a testament is approved by law and religion, like in Islamic law, and where the testamentary disposition may not be made for the benefit of one of the ZegaZ intestate heirs (Juynboll 1903: 256, Fyzee 1955: 310). Once we have eliminated death as the distincti ve criterion, there are no analytical differences between donations which become effective before and af ter death. The opposition we are concerned with is not between ''heirs'' and "persons to whom property is alienated" but with different persons who receive property without contraprestation in time, with beneficiaries of diachronic transfers. To what extent these beneficiaries can be persons not belonging to the corporate group or the legally predefined intestate heirs depends on the degree of autonomy which is recognized for the property holder. The limitation of inheritance in its widest sense to transfers between property holder and predefined heir

S3

presupposes a fixed degree of autonomy and includes i t in the concept, an approach which obviously is not suitable for the purpose of cross-cultural generalization. It subjects inheritance to a specific form of socially organized groups and, in the case of Goody, makes inheritance a function of unilineal descent. However, inheritance is always a function of social organization in general, which expresses the degree to which society's members' autonomy is recognizedjrestricted in all domains. As we know weIl from our own society and as is further evidenced by most studies of change in traditional societies, the rul es regulating the continuity of social groups and those regulating the continuity of property are never fully consonant (see Moore 1969).

Following Goody, we have considered 50 far the donation of residual property relationships, or of "outright donations" (Goody), as diachronie transfers only. It is, however, important to note that this analysis holds true for provisional property relationships only to a limited extent.

1. 'rhe derivation of the provisional relationship by the holder of the residual relationship, e.g. the creation of rights for a pawnee, is no diachronic transfer. Provisional relationships are, by definition, provisional in time, too. They are always temporary relationships, whatever their actual or intended duration may beo The temporary character gives them a synchronic appearance: Temporary relationships are always ''within time", within the time marked by their temporary duration. In this respect, it therefore makes no difference whether the provisional relationship has been created in exchange for a return which is valued as property or not. Donations of provisional relationship, by the holder of the residual relationship to the recipient of the provisional one, therefore do not fall into the category of diachronic transfers.
2. We must, however, recall the most important characteristic of provisional property relationships: They are provisional only in relation to the residual relationship from which they are derived. In all other respects, they can -depending on the legal system concerned -assume all characteristics of a residual property relationship: Lesser relationships can be derived from them, and, in their residual aspect, they can also be the object of a diachronic transfer. Thus if A, the holder of the residual property relationship a, gratuitiously derives a provïsional

PROPER1Y IN SOCIAL CONI'INUI1Y

property relationship b for B, this always is a temporary and synchronic transfer. According to the degree of autonorny inherent in b, B may derive another provisional relationship c for C, which again is ternporary and synchronic. But the legal system mayalso provide that b can be diachronically transferrred, e.g. be inherited by D. In the relation between B and D, the relationship then has residual character, even if the relationship between A and B, and, af ter B's death, between A and D is of a provisional kind. In this way,provisional property relationships, like the rights of a pawnee, can be maintained as ternporary relation- s hlpS " t h rou gh generatlons."34

The distinction between residual and provisional property relationships and their synchronic and diachronic transfers is of particular importance for the study of property systerns where residual property relationships are usually attached to social groups which do not die in legal definition. Anthropologists have too easily assurned that only residual relationships, generally identified as "ownership", could be inherited. Typical for this is the attitude referred to by Allott, Epstein and Gluckrnan in relation to African laws of succession and inheritance: "But if an estate was, and remains, the property of a kinship group or farnily, and the successor to its former holder.adrninisters it for the group even while he has beneficial enjoyrnents of it, can there be said to be 'inheritance' at all? Can a group be said to 'inherit' what it already so-to-speak owns?" (1969: 50). 35 What, would we ask, happens within the group and between the group mernbers? That the residual relationship is attached to a group will be quickly ascertained, so our attent ion should be directed at what synchronic and diachronic transfers occur within the group and between group members and non-group members. 36 Within the group, there may be a differentiated system of provisional property relationships which are regularly subject to diachronic transfers. As Moore has pointed out recently, this has "significant theoretical irnplications, since it adds an inside perspective to the conventionalpicture of agnatic descent groups in which everyone is seenfrom the outside as jurally equivalent to everyone else" (1969: 390). This theoretical irnplication shall briefly be explicated: It shows that the western notion of cornrnon ownership cannot be used to characterize the residual right held by the group. For in cornrnon ownership, all rnernbers are owners. Their respective relationship to the property is expressed in divisible or indivisible shares, in terrns of the residual relationship and not in terrns of provisional re-

contrast, there is an

elaborate system of provisional property relationships, through which the group's members' rights to use and to exploit the property objects are demarcated differentially and which can be inheri ted, whereas the group members' participation in the residual relationship cannot be expressed in tenns of shares. As we shall see later in this study, the Minangkabau system of property relationships is a good example for such a system; we shall also see that the projection of the western notion of ownership on the Minangkabau system of property relationships through Dutch judges and administrators had important practical consequences for its further development (see Chapter 4: 190, Chapter 6: 354 ff.).

The conceptions outlined in this section -the conceptions of resi~ and provisional relationships, operating on the level of socio-political control over property and on the level of use and exploitation of property objects, and of synchronie and diachronie transfers of property relationships -in my view are the best analytic devices by which systems of property relationships can be studied. I also think that what I have charaçterized as diachronie transfers comes closest to the kind of transfers which are usually subsumed under "inheritance" or "inheritance-like transfers". In my study of the Minangkabau system of property and inheritance I hope to demonstrate the value of this framing of these concepts. Yet the analysis also demonstrates one point which has already been mentioned: When we want to study how societies maintain their system of property relationships through time and how they cope with the fact that the individual members of the society die, the study of inheritance or of diachronie transfers of property relationships alone will always be insufficient. We must never forget that all holding and all transfers are through abstract time. The distinction between diachronie and synchronie transfers is culturally variable and so is the degree of autonomy of the constituents in property affairs. When we want to make generalizations ab out inheritance or diachronie transfers, the study of the respective institutions is not sufficient. We must always study the whole system of property relationships and must start with the question, how society sets its property relationships into time and why it does it in the way it does.

TWO

SOCIO-POLITlCAL ORGANIZATION IN MlNANGKABAU

A. INTRODUCTION Little is known about the early history of the political organization of the Minangkabau wor ld. Data which would allowan historical re construction are scarce (see Kielstra 1887a, De Josselin de Jong 1951, Dobbin 1975), and the main sourcffifor knowledge and conjecture are embodied in the tambo, the historical Minangkabau legends which are transmitted in oral and written form. In this study I shall restrict myself to the description of the socio-political organization of the Minangkabau village states, the nagari, and of nagari Candung Kota Lawas (CKL) in particular. The analysis of the materials on Minangkabau political organization before the beg inning of the 19th century would go far beyond the scope of this study (for a recent at tempt see Dobbin 1975). I shall give my interpretation in a different publication, which will also deal with the question of how CKL fits into the general picture. In this introduction I shall therefore only give a very summary account of what is known about the political

history of the Minangkabau world. 1

The Minangkabau tambo relate the creation of the world, the arrival of the ancestors under the king Maharajo Dirajo, the youngest son of Iskandar Zulkarnain (Alexander the Great), the settIement in the first nagari Pariangan Padang Panjang, the expansion of the population and the activities of the two half-brothers Dt. Perpatih nan Sabatang and Dt. Katumanggungan, who devised the political organization and the adat. The settled area was divided into the "three districts" (Luhak nan tigo) Tanah Datar, Agam, and 50 Koto, and the "two lareh" (lareh nan duo) Koto-Piliang and Bodi-Caniago. The population lived in nagari, village states, which consisted of one or more settIement centers (koto). Within

PROPERTI IN SOCIAL CONTlNUITI

the nagari, the population was organized in matrilineages; the matrilineages were each affilitated with a suku. The suku were and still are named matriclan-like groups. They may onoehave functioned Minangkabau-wide as true matriclans, but in historie times they have had a group character only within nagari. The nagari were governed by panghulu, the matrilineage leaders resident in the nagari. In the 14th century a kingdom was established in Tanah Datar by the prince Adityawarman (an historie figure) who probably extended into West Sumatra one of the great empires which had flourished at the east coast of Sumatra in the second half of the first and the beg inning of the second millenium. The kingship was later vested in three offices, Rajo Alam, the King of the World and the actual rul er of the kingdom, Rajo Adat, the King of Custom, and Rajo Ibadat, the King of Religion. The kings resided in the nagari Pagarruyung in luhak Tanah Datar. Succession to their office was patrilineal, a contrast with the matrilineal organization of the suku. Little is known about the position of the kings. They seem to have wielded little power. In the original three dis tri cts the nagari were sovereign states, whereas in the rantau, the area surrounding the luhak nan tigo, there was a rajo (a king's representative) in each nagari (Francis 1839). Howsoever the political organization may have been in the 14th, 15th, and 16th centuries, the Minangkabau kings did.not exercise substantial power in the first reports given by western foreigners. The first European to reach Minangkabau from the east coast, the portuguese Dias, who visited the royal courts in Buo, probably a dependancy of the Rajo Adat (De Josselin de Jong 1951: 101) in 1684, noted the very limited powers of the king (see De Haan 1897, Schnittger 1939). And the messengers from the Dutch at the west coast who established contact with the "emperor" (Keizer) of Minangkabau in 1665, reported that the king himself was not in the position to exercise any authority, but that they had to nego- tiate with the heads of the two "tribes" (geslachten) Koto-Piliang and Bodi-Caniago (Kroeskamp 1931: 46). These two tribes, the lareh Koto-Piliang and Bodi-Caniago had been established by the legendary law-givers Dt. Katumanggungan and Dt. Perpatih nan Sabatang weIl before the Kingdom was established in Pagarruyung. The character of the two lareh is rather unclear. De Josselin de Jong (1951) regards them as moeities, out of which the allegedly original, four suku, Koto, Piliang, Bodi, and Caniago developed. Most authors, however, regard the two lareh as political parties (see De Rooij 1890,Leyds 1926). Koto-Piliang, founded by Dt. Katumanggungan, was the "royal party" which supported the King-

IN MINANGKABAU 59

ship, and established a rather autocratie form of nagari government, which was exercised by the Datuek nan ampek suku, the heads of the four suku, to which the matrilineages of the nagari were affiliated. Bodi-Caniago, founded by Dt. Perpatih nan Sabatang, was the "democratie party", opposing the Kingship and proclaiming complete nagari-autonomy and the equality of all lineage heads in nagari government. There were additional differences in the penal law, Koto-Piliang stressing the talion-principle whereas Bodi-Caniago relied on the principle of compensation in homicide cases. The Four Ministers of the Minangkabau Empire, the Basa nan Ampek Balai (The Great Men of the Four Council Halls), all resided in nagari belonging to the Koto-Piliang Federation; this supports the hypothesis that the establishment of the Kingship was essentially an effort of the Koto-Piliang party. Each nagari had to adopt either the adat Koto-Piliang or Bodi-Caniago, but several nagari have claimed to belong to neither, a further indication of the "political party"-character of the two Zareh. Historically the "parties" seem to have lost their original function, but Bodi-Caniago and Koto-Piliang have persisted as distinct adat systems into the present. The differences between the two systems have largely disappeared, a process which was enhanced by the imposition of a new political superstructure by the Dutch in the 19th century and the abolition of penal justice according to adat in 1875. The Islamic religion was imported to Minangkabau most probably in the second half of the 16th century, but it seems that it was only gradually accepted. As late as 1761 the inhabitants of the west coast were described by a Dutchman "not as MUslims but mostly pagan, or rather without religion" (Dobbin 1975: 85, with further references). But as we have seen, among the Royal offices there was one of a "King of Religion", and among the Basa nan Ampek Balai there also was a minister of religious affairs, the Tuan Kali who resided in Padang Gantiang. Religious functionaries were also created within the suku administration in the nagari: the Imam, Chatib, or MaZim Adat. The degree to which the Islamie religion was accepted by the Minagkabau in the first period of Islamization is largely unknown. At the end of the 18th century, at least, they were not devout believers. Variations in intensity of belief in Islam greatly contributed to the civil war which broke out in Minangkabau in the beginning of the 19th century, the so-called Padri-war. The Padri were an orthodox religious movement founded by three hajis who had returned from their pilgrimage to Mecca in 1803. During their stay in Arabia, they had

IN SOCIAL CONTlNUITY

come under the influence of the very strict religious tenets of the Wahabite sect. Af ter their return to Min~bau they began preachinf, the abolition of gambling, opium smoking, cock fighting, and palm wine drinking, pleasures in which the Minangkabau seem to have indulged to a great extent at this time. Their campaign was also directed against the political organization of the nagari; they sought to replace the government based upon the heads of the matrilineages by a theocratic form of government through Tuangku (Lords), who were to wield both religious and secular power. Against those nagari which did not want to submit to their teachings, the Padri waged a holy war. At the beg inning of the war, the members of the royal families were rnurdered, and soon the whole country was engaged in a civil/religious war. As will be described later (Chapter 3), it was the Padri-war which served as a pretext for the Dutch occupation of Minangkabau.

The Padri-war and the subsequent imposition of Dutch colonial rule on the Minangkabau nagari had a great impact on the socio-political organization. In the following description I shall indicate the most important changes which occurred as a consequence, but my main aim is to present the basic principles of the adat socio-political organization of the nagari. The development of the pluralistic situation in the legal and administrative field will be dealt with in the next chapter. I shall order the Minangkabau conceptions which refer to the order of their nagari under four headings. At first I shall describe the principles which divide the nagari-population into groups and which regulate intergroup relationships. Vnder the second heading I shall treat the allocation of authority to individuals and groups. The third is concerned with the individual's relationships to other individuals and to groups. Vnder the heading of residence I shall finally deal with the conceptions which localize the inhabitants' rights and duties and their activities. The principle which pervades all four sets of organizational rules is the conception of matrilineal descent (keturunan garis ibu), which the Minangkabau define as "blood relationships" (batali darah). The fundamental socio-political units are structured according to this principle. Matrilineal descent provides an important criterion for determining the eligibility of pers ons for positions of social and political authority; the same des cent principle also provides a criterion for determining the range of pers ons and groups over which positions of authority extend. The principle also rnarks off the functionally most important sub-

IN ~lINANGKABAU 61

set of the individuals' kin, and i.t further functions as a guideline for the continuation of positions of atlthority and property relationships through time. But although the conception of matrilineal des cent is the dominant principle used in social and political organization, it is by no means the only one. In the field of inter-individual relationships, relationships established through marriage are of considerable importance, and the relationships between children and their father and their father's lineage are functionally loaded to an important degree. So far as positions of authority are concerned, selection and communal agreement modify the principle of succession according to matrilineal descent. Finally, thc population is dividcd into groups not only through the matrilineal principle, but there are also group divisions which are based upon political arrangement and on a territorial division of the naga~i. '111cse addi tional principles should be stressed, as the principle of matriJineal des cent has generally been over-emphasized by prcvious authors. Further principles divide the population into categories of different social and political rank. 2 Stratification is based upon type of residence in a naga~i. In principle, each naga~i recognizes three categories of inhabitants: the descendants of the original settlers (u~ang usali, "original people"), the descendants of strangers which were acccpted in the naga~i at some later time (u~ang datang, strangers, newcomers, arrivals), and the descendants of former slaves (locieh or kemanakan dibau)a lutuik, sisters' children below the knee) (see De Josselin de Jong 1975: 11, Umar Junus 1964: 292,308).

B. GROUP FORMATION AND INTER-GROUP RELATIONSHIPS
I. THE CONSTITUENT GROUPS By constituent groups I mean those groups which are presumed to exist in perpetuity and which function as the structural units of the naga~i-con stitution. According to the adat of CKL, the basic socio-political units are the groups called buah gadang. They correspond to the groups which in the literature on Minangkabau are usually cal led buah pa~uik, pa~ik, familie, or kaum (for an overview of the varying terminology see De Josselin de Jong 1951: 49 ff.).

PROPER1Y IN SOCIAL CONrINUI1Y

1. The Buah Gadang and Its Internal StruatuT'e The buah gadang is defined as "one" in several respects: The members of the buah gadang are said to ''have in conunon" or are "of one" panghulu- title (sasako), heritage (sapusako), property (saharato), and graveyard (sapandam sapakubUT'an); they are people who are "offended and ashamed together" (sahina scunalu). The buah gadang can be a matrilineal descent group ~), comprising only persons who trace common matrilineal descent from one apical ancestress. It mayalso be stratified or consist of MDGs of the same rank which do not together make up a MDG. As it is a rule of adat that strangers and the descendants of former slaves can acquire nagaPi-citizenship only by incorporation into a buah gadang, the social strata are usually indicated through a reference to their status as buah gadang members. For this reference the concepts of matrilineal des cent are used: All group members are referred to as kcunanakan ("sister's children"). According to adat, there are four kinds of kcunanakan. To these four kinds of kcunanakan correspond four different mechanisms of incorporation and the three social categories which have already been mentioned:
1. The first kind of group members is made up by the persons who are directly related by matrilineal descent to the buah gadang's apical ancestress, and who have become members by birth to one of the group' s female members. These are the "sisters' children related by blood" (kcunanakan batali daT'ah) or "sisters' children below the chin" (kcunanakan dibawa dagu). A buah gadang may consist of such blood relatives only, but mayalso containkamanakanof the following three categories.
2. The second kind of group members are those who have been adopted .by the first kind and the adopted members'descendants. These are the "sisters' children below the breast" (kcunanakan dibawa dado). Adoption is rare in Minangkabau and mainly occurs for demographic reasons : The buah gadang is threatened with extinction (punah, putuih) or there are no male group members who can effectively lead the buah gadang and manage its affairs. In principle, pers ons should be adopted with whom matrilineal descent relationships are recognized, but exceptions are permitted. Usually, the adopted members are also batali darah, blood relatives in the matriline, who were, before their adoption, members of a different buah gadang resident in the nagaPi. 3 In addition to nagari residents members of a buah gadang's balahan can be adopted. The balahan are

IN MINANGKABAU 63

groups formed by the descendants of pers ons who, in the past, had been members of the buah gadang but who, at some time in the buah gadang's history, have split off to move into a different nagari (a case in which such an adoption is envisaged will be described in Chapter 5). The adoption requires a formal ceremony and the consent of the nagari-government. The new members must be acknowledged as kcunanakan (mangaku kcunanakan) and be officially and publicly received as new group members (di on- jokkan). Af ter the adoption, the new group mernber(s) enjoy the same rights and privileges as the blood relatives (see Willinck 1909: 357).

3. The third kind of group members consists of strangers and their descendants, who have associated (malakok) with a buah gadang. Any stranger wishing to settie in the nagari must be incorporated into a buah gadang. Minangkabau adat says of them: "tabang manwrrpuehkan dahan-hanggo man- ccunkan rantiang"-"(a bird) leaves the tree branch when flying away-it catches a twig when sitting down" (Kroesen 1874: 22). They must find a mcunak, a ''mother' s brother", and they should seek acceptance in a buah gadang which belongs to the same suku to which they, in their original nagari, belonged. These are the "sisters' children below the stomach" (kcunanakan dibC/);)a pusek) or the ones related by "good relationships" (bataU budhi).
4. The fourth group consists of the descendants of former slaves. These are the "sisters' children below the knee" (kcunanakan dibC/);)a lutuik) or the ones "related by gold" (bataU cuneh). Slavery seerns to have played only a minimal role in Minangkabau before the Padri-war. The Minangkabau are reported to have made occasional raids on their non-Islamic neighbours and on the islands off the west coast (Verkerk Pistorius 1868: 435 ff.). Only in the Padri-war, could Minangkabau thernselves be made slaves. For the padri treated all those who did not want to submit to their rule as kafirs, unbelievers, and unbelievers could be made slaves. The budak or locieh, as the slaves were called, were treated as self-acquired property (harato pancaharian) and af ter their master's death became budak pusako, inherited slaves which were treated like inherited property (harato pusako) (see Kielstra 1892: 640 H.). In general, slaves seem to have been treated rather wel! and were set free af ter having rendered good services to their master. 4 When slaves were set free, they had, as strangers in the nagari, to look for a mcunak and to be accepted in a buah gadang, and they in general

PROPER1Y IN SOCIAL CONfINUI1Y

chose their former master as mamak. When slavery was officially forbidden in the Colony in 1860, the colonial government freed all slaves, and also freed the kamanakan dibawa Zutuik from their of ten slave-like obligations towards their former masters by buying them off (Kielstra 1892: 641, 643, Verkerk Pistorius 1868: 435 ff., AB 11: 82). In the district of "Old Agam", where CKL is situated, slavery played no role: Only 504 kamanakan dibawa Zutuik were bought off at the time (Kielstra 1892: 643). But in some other nagari, such as Silungkang and Padang Sibusuk, nearly one third of the population consists of the descendants of former slaves. 5

The different kinds of kamanakan are all group members. They are all subject to the socio-political authority of their panghuZu who represents all his group members in the nagari. Besides, all group members share the same rules of exogamy. Thus strangers of suku X who had associated with a buah gadang of suku Y were henceforth not allowed to marry members of suku Y. But in some respects the status of the various kinds of group members is clearly differentiated: The kamanakan of the third and fourth kind have no equal vote in buah gadang matters. They are ineligible for their buah gadang's panghuZuship, an exception being sometimes made for the descendants of strangers. They also have no equal rights to the buah gadang's property. As will be described in detail later, only the blood relatives and the adopted members have a right to an equal distribution (pambahagian)-the other kamanakan are only "given" some property (pambarian; a story involving the property relationships between kamanakan dibawah Zutuik and their former masters will be described in Chapter 5).

2. Subdivisian and CZeavage of the Buah Gadang The buah gadang differ in genealogical depth. Some trace their existence to times before the foundation of the nagari. Although not all ancestors are remembered (the deepest genealogy, ranji, which we saw comprised 11 generations), one "knows" that the buah gadang and the first incumbent of i ts panghuZu ti tle were among the founding families. Other buah gadang have come into existencè at a later stage. Some may have branched off from an already existing one, others may have been constituted by the descendants of strangers or former slaves according to the rules which will be described later. In CKL, buah gadang are also subdivided into formal subgroups, the kaum. Whereas subdivision as such seems to be a

ORGANIZATION IN MINANGKABAU 65

regular feature of Mïnangkabau adat, the form in which it is presently done may have been seriously influenced by Dutch administrative policy. This question win be discussed after the processes of subdivision and cleavage have been described.

a. Subdivision: The Kaum In CKL, the subdivisions of a buah gadcmg are called kaum. A5 the use of the.word kaum in the Mïnangkabau literature and in contemporary Minangkabau varies considerably, same general remarks must be made first: The word kaum is Arabic and means group. It has probably been used in Minangkabau since the Islamization, but it is not known to which of the socially defined groups the term was applied, and whether there was a uniform usage throughout Mïnangkabau. In 1908, the Dutch colonial administration employed the term kaum to denote the groups which we re to be responsible for the payments of the newly introduced tax (Van Vollenhoven 1918: 249, Joustra 1923: 92). For this purpose the groups were chosen which were presumed to hold property in common. The head of this group was styled mcunak kepala waris (Min.: mamak kapalo warih), the "mamak who is the head of the heirs" (on the term warih see below pp. 99 and 196). This use of the term has persisted into post-Independence Indonesia, and it is universally applied in the State Courts. Disputes over group-property are, by definition, over kaum property, and the kaum must be represented by its mamak kepala waris (see also Tanner 1971: 265 H.). It is, however, very doubtful whether the uniform usage in the courts corresponds to a uniformi ty on the nagari level.6 In CKL, the kaum are potential subunits of the buah gadang: The internal formal organization of buah gadang is expres'sed in terms of kaum. A buah gadcmg can consist of one kaum only, but also of several kaum. There are 100 odd buah gadang in CKL and nearly 400 kaum. The average thus is 3 to 4 kaum per buah gadang, but there are many buah gadang with just one kaum, and at the other extreme is one buah gadang which consists of 13 kaum. The buah gadcmg is one group (kaum, in the most inclusive reference of the term) with "one" property and "one" panghuluship and-title. Subdivision of the buah gadang into two or more kaum involves a formal division of the common property, but not of the panghuluship. Of two kaum in the same buah gadang it is said that "harato dah dibagi", the property has already been divided. Both kaum have their kaum-leaders, the mcunak kepala waris, as they are nowadays cal led (the terms mcunak kaum or

PROPERTY IN SOCIAL CONfINUITY

tungganai are also still used, see below), who exercise authority in kaum-internal property affairs. According to court-practice, they also represent their kaum in all disputes over kaum-property. In inter-kaum disputes, however, or in intra-kaum disputes which cannot be solved at the kaum level, the panghulu retains the highest authority also in property affairs. No transfer of any buah gadang property, share-cropping agreements excepted, may occur without him taking cognizance. Common holding and division of property are, however, expressed on two levels of socio-political organization: According to adat, in the senseof pOlitical-administrative relations, the buah gadang consisting of more than one kaum is still "one"; all buah gadang members are still urang saharata, people with one common property. The property division in the buah gadang between its kaum is to be valid only internally. As one of the stories told in Chapter 5 will demonstrate, this principle is still recognized in the nagari and has practical consequences in property-politics. On the other hand, the autonomy of the kaum in property affairs is clearly acknowledged in the State Courts, where the mamak kepala waris, and not the panghuZu, represent their kaum in inter-group disputes. This somewhat arnbiguous kaum-buah gadang relationship may be due to the fact that in the courts' perspective, kaum are the groups which have one property; "one property groups" can be either kaum or buah gadang groups in CKL. Subdivision of buah gadang consisting of one kaum into two kaum will mostly be the result of a longer process. The division generally occurs for demographic reasons, when the group members have become numerous enough that they lose the feeling of "really" being one group. Minangkabau adat says: "panjang dikarek-bun tak dikapiang"-"what has become too large, must be shortened, what tends to become unclear, must be clarified" (Kooreman 1902: 917, Willinck 1909: 353). The division itself, however, must be formalized. When the division is to occur, the rule of "kok lima kali turun"-"when there are descendants five times", must be adhered to (Willinck 1909: 352, De Josselin de Jong 1951: 85). This rule indicates the generation level at which the apical ancestresses of the newly formed kaum are established: The apical ancestresses whose descendants form the new kaum are those women who, at the moment the group split is made, have had five generations of descendants. They thus are determined on the ~~~level of the youngest living generation; the counting proceeds from the youngest living generation upwards, not from the apical ancestress of the former undivided group downwards, through

ORGANIZATION IN MlNANGKABAU 67

. 7
the generatlOns. The above deseription only refers to divisions of buah gadang or kaum which eonsist of blood relatives. Kamanakan of the third and fourth kind can also be given kaum-status, and in this ease the kok limo kali turun- rule does not play a role as there is no question of a eommon apieal ancestress. The formal reeognition of kaum-status requires the deeision of the buah gadang elders. The above prineiples do not only pertain to the subdivision of buah gadang which are one kaum,but to subdivision of kaum in general. Due to the varying demographie pressures, kaum will generally develop asymmetri- cally. There may be kaum where the eommon apieal aneestress is still remembered by the living kaum members. In others, however, where due to failing demographie pressure there was no need for kaum splits, the common apical aneestress may be several generations removed, and the actual genealogieal relationships between the kaum members may be not clear to them any more.

As long as the buah gadang as a whole is not split, the newly formed kaum still have the same sako, panghulu-title. This is of ten kept by the genealogically older kaum. But of ten (and apparently in Bodi-Caniago adat in partieular) the two kaum agree to rotate the title and the panghuluship between them. This agreement is called "gadang balega (bagiZieh)"-"the greatness rotates" (see also Willinck 1909: 801 f., De Josselin de Jong 1951: 87, who speaks of the adat sansako). This agreement of ten leads to diffieulties and serious eonfliets between the kaum. For one, this is due to asymmetrie kaum development. If a buah gadang subdivides into two kaum, the two kaum should alternatively use the title. But if one of the kaum is subdivided again later, and there are three kaum, the title should still be rotated between the two original kaum, whereas the two "subkaum" should now start rotating their turn. The title thus should be rotated in a sequenee like ABACABAC. But af ter some time, B and C will usually claim the same right as A. In addition, the kaum which has held the panghuluship more of ten is loth to give it to the other kaum af ter the panghulu's death and rather tries to install one of its members as new panghulu again. Such eonfliets of ten lead to definite splits of buah gadang.

PROPERTY IN SOCIAL CONTINIUTY

b. Cleavage of Buah Gadang By cleavage 1 mean the establishment of two (or more) buah gadang out of one. The TUles for cleavage are the same as have been described for subdivision, but there is one important additional TUle: As it is one requirement for a group's buah gadang status that their members have "one sako", the establisrunent of a new buah gadang means the establishment of a new panghuZu title. Conversely, the installation of a new panghuZu means the formation of a new buah gadang. As the members of the new buah gadang must have been members of a buah gadang before, the establishment of a new buah gadang always means that an existing buah gadang is divided. The process of cleavage is generally preceded by the subdivision of the buah gadang into kaum. There are four principle modes of establishing a new panghuZuship.8 The concepts used to denote these four modes are not uniformly used throughout Minangkabau,9 but the processes indicated by the sometimes varying terms denote the same mechanisms: They deal wi th the cleavage of buah gadang consisting of blood relatives (1 and 2), of the descendants of strangers (3), and of the descendants of former slaves (4):
1. Gadang manyimpang (The Greatness branches oH) In the case of gadang manyimpang, a new buah gadang is formed by one group of the blood relatives af ter an agreement over the cleavage has been reached. The typical situation is, that the kamanakan bataZi darah have increased. The buah gadang has already been subdivided into two kaum and one kaum may already have moved to cultivate land in a diffe- rant part of the nagari. So one decides "that the time has come" and that independence should be given to that kaum. The new group is given its own panghuZuship and title, which in many nagari generally is (or even has to be) derived from the panghuZu title of the old buah gadang. Thus if the buah gadang of Dt. Sinaro establishes a new buah gadang, the new panghuZu title may be Dt. Sinaro Panjang. To speak of "old" and "new" buah gadang only makes sense if it is related to the group which keeps the original title, and this of ten is the genealogically older group (descending from the older sister of the sisters who are apical ancestresses). Another and mostly corresponding reference is to the residence of the groups. The old group usually stays at the original settlement area, the "new" group moves away. But the two buah gadang may also agree upon "title-rotation": Each buah gadang wears the original and the new title in rotation. This was quite common in CKL.

IN MlNANGK4BAU 69

2. Baju sehelai dibagi duo (One shirt is divided into two) In this case, the buah gadang of the blood. relatives is divided into two groups of equal rank, which both keep the original panghulu title. Thus one buah gadang Dt. Sinaro becomes two buah gadang with the panghulu- title Dt. Sinaro. According to "old" adat, this was forbidden, but it seems to occur 50 of ten that most Minangkabau consider it an unpleasant but hardly avoidabIe practice. Such a cleavage only occurs in case of trouble: mostly when there are two or more kaum which cannot agree which kaum is to keep the panghuluship or when the title-rotation does not function. If the dispute cannot be solved by the other panghulu or not even by the highest panghulu in the Karapatan Adat Nagari, the Nagari Council, this kind of division may be the last resort.
3. Mangguntiang siba baju (A piece of the shirt is cut off) In this case, a new buah gadang is formed by the descendants of former strangers, who had at some time associated with the buah gadang. If their descendants have increased, and when they have demonstrated their worth, it may be decided to give them independent buah gadang-status. They will be given their own panghulu title, which should in general be derived from the title of their former panghulu. The new panghulu thus may get a title like Dt. Sinaro nan Panjang.
4. Mambuek kato nan baru, mambuek panghulu baru (To make a new panghulu) In this case a new panghuluship is created for the descendants of former slaves which have been given independent buah gadang status. The title is new insofar as it may not contain part of the sako of their former masters; a new ti tIe has to be invented. The same processes hold, of course, true for future cleavages of the newly formed buah gadang. If at a later stage the buah gadang which has been formed by the descendants of former strangers is split, this will follow the rules laid out in 1. and 2., the rul es concerning cleavage of groups of blood relatives.

IN SOCIAL CONTlNUITI

I I. O1HER GROUPS

The buah gadang and kaum have been described as the constituent socio-political units. This constituent character is rooted in adat and the nagari-constitution. In addition, there are other references to groups, which partly overlap with buah gadang and kaum: jurai, rumah, kampuang, and pariuak. In CKL, these terms have the following connotations:

1. The JUY'ai The term jUY'ai can be used to denote any MDG which traces common matrilineal descent to one common apical ancestress, irrespective of its genealogical depth and formal structure. JUY'ai thus can be used to refer to a mother with her children, to a kaum or a buah gadang, and it can also denote a group of several buah gadang which share common matrilineal descent. In general, however, the term jurai is employed to indicate lineages within the formal groups, the kaum or buah gadang; i.e. the apical ancestresses of the jUY'ai can be taken from each genealogical level below the one on which the *kaum-*or buah gadang ancestress is 10- cated. JUY'ai means both the actually living members of a jurai as weIl as the group in perpetuity. It has a purely genealogical connotation: A jUY'ai is always formed of blood relatives (bataZi darah), whatever their social status may beo
2. The Rumah The term rumah, house, refers to the rumah gadang, the Minangkabau long-house, which is the center of kaum activities and ceremonies and in which the female group members sleep together with their husbands and children. Rumah, or the people who are sa-rumah, "of one house", can be used to indicate the kin group sharing the same rumah gadang. The eldest matrikinsman, the head of the house, is styled mamak rumah or tungganai. But rumah can also be used in reference to all persons whose ancestresses, howsoever far removed, once shared the same rumah gadang. It thus can indicate all members of a buah gadang, even if they now live in several houses. In suku Caniago, e.g., there was a subdivision cal led Caniago 5 Rumah, the Caniago of the 5 Houses. In this case, the 5 houses indicated the five original buah gadang of that subdivision. In CKL, as probably in most nagari in Minangkabau and as in many other societies, "house" has both a genealogical and residential/territorial meaning. In former times, the genealogical and residential rules were probably

POL ITI CAL ORGANIZATION IN MINANGKABAU 71

matched insofar as a residential unit was also a genealogical unit recognized as a formal group. In a given historical situation, the people who were sarumah constituted thekawn or even the buah gadang. When the group members increased, at first new rooms would be added to the rumah gadang, or a smaller house would be built adjacent to it. In this case, the group mernbers in the small house would still be "of one house" wi th the others. If the group continued to increase, people would start thinking of building a new rumah gadang. This is an important matter, to be decided by the whole group and the panghuZu. If the new rumah gadang was built, the group members going to live there would have their own mamak rumah or tungganai, and the residential split would probably be accompanied by a forma 1 subdivision of the group. As far as I can judge, the genealogical principle, however, was the decisive one. It certainly has proved to be the persistent ane in CKL, where the residential referent has lost most of its irnportance. For rumah gadang are no longer regularly reconstructed eit is too expensive and people appreciate some more privacy) and the rumah gadang which are still used usually do not house a formal group any more. The rnajority of people live in smaller houses, which have space enough for a jupai of three generations. Whether these houses can be called pwnah in its adat meaning is questionable. In CKL, the eldest male matrilineal relative of a group living in a small house is sometimes designated mamak rumah, but in general mamak rumah or tungganai is used to denote the kawn-heads, also when the kawn members lived in several small houses.

3. The Kampuang The concept kampuang is also used with both genealogical and territorial reference in Minangkabau. In the literature, it is used to refer to groups such as buah gadang in CKL as weIl as to larger groups cornposed of several buah gadang of the same suku. This seerns to be the general case for nagapi with Koto-Piliang adat in the district 50 Koto. Kampuang is also used to indicate the settlernent area in which a genealogical kampuang lives. In CKL, the word is only used in a residentialj t errltorla.. I meanlng.. 10
4. The PaPiuak The word papiuak li terally means "ri ce-pot". It is used to denote the people who share one rice-pot -the group of matrilineal relatives who eat together.

PROPERIT IN SOCIAL CONTINUIIT

II 1. GROUP FORMATION ON MJRE INCLUSIVE LEVELS AND 1HE SYSTEM OF INTERGROUP RELATIONSHIPS

The buah gadang are the basic socio-political units in the nagari. Their mutual relationships, hierarchical order, and the formation of more inclusive groups of buah gadang are regulated in the nagari's constitution. The constitution is partly subject to Minangkabau-wide adat which contains principles according to which a nagari must be constituted; in part it consists of constitutional arrangements which have been made by the nagari's political leaders. One of the most important principles of nagari organization is that each Minangkabau individual, and consequently each group, must be long to a suku, and that there must at least be four suku in a territory before the territory may be declared a nagari. The description and analysis of the Minangkabau suku organization is complicated by the fact, that the term suku is applied to groupings of different character -in the literature as weIl as in the various nagari: Suku refers to the named groups which are generally considered to have been Minangkabau-wide matriclans, and which are said to have developed out of the "original" four suku Koto, Piliang, Bodi, and Caniago. At present, there are more than one hundred of such suku in Minangkabau, but they have group character only on the nagari level. Secondly, suku álso refers to administrative associations of buah gadang which may not be related to each other by actual or assumed common matrilineal descent and which may even belong to different clan-suku. A detailed discussion of the Minangkabau suku system and of the interpretations given to it in the literature would go far beyond the scope of this study.11 Here, I shall only describe the situation as it was in nagari CKL.

In CKL, there are two kindsof most inclusive groups, the suku and the hindu. The suku, also called suku pusako, are formed according to the principle of common matrilineal heritage, and are known by the matriclan names. The hindu (from induek, mother, genetrix) or hindu adat, which formerly had been cal led suku adat, are formed according to the principle of adat in the sense of political arrangements not (or not exclusively) based upon common matrilineal descent. The hindu adat are named af ter its dominant suku pusako group or af ter the number of its component suku pusako groups. 12

ORGANIZATION IN ~lINANGKABAU 73

In CKL, there are 9 suku pusako: Sikumbang, Guci, Koto, Jambak, Caniago, Selayan, Melayu, Pili, and Tanjung. There is unfortunately no exact information on the number of the suku members, but the relative strength can be indicated by the number of kaum and the multiplication of the number of kaum by the ave rage number of the members of one kaum (25.5): 13

Estimated number of members

Pili

all the gadang of one suku pusako. Those which are related to each other by common matrilineal des cent and which have developed through the processes of cleavage from one original buah gadang are characterized as being "saparuik"-"of one womb". (Note: In the literature the term saparuik is generally used as a formal group term for the groups cal led buah gadang in CKL.) But with other buah gadang of the same suku no such relationships are recognized. Some buah gadang had, at the time of the first immigration, come from very different parts of Minangkabau. With these buah gadang, only a very vague and putative common descent is recognized on the basis of common suku-membership, and the notion that all members of one suku ultimately had descended from one original group. With other buah gadang, even those relationships are not recognized as they had been formed by the descendants of strangers (who before their incorporation may have belonged to another suku) or the descendants of slaves. This, at least, is the conception held by the adat experts in CKL. The different kinds of relationships are clearly distinguished by them, and one still ''knows'' the actual kind of relationships. The charter of relationships is orally transmitted, and it is also written down in

PROPER1Y IN SOCIAL CONTlNUI1Y

the tamba of the nagari. We were shown excerpts, containing the lists of panghulu (buah gadang) and their grouping according to saparuik relationships. In the tamba excerpts, adat experts had also written down the places of origin of the buah gadang which had moved to CKL from elsewhere.

The buah gadang of the 9 suku pusaka are grouped together differently in the 12 hindu adat. The composition of the hindu is as follows:14

1. Hindu Sikumbang Tangah (the Sikumbang in the middle ). This hindu comprises at least two unrelated (in the sense of saparuik) groups of Sikumbang buah gadang.
2. Hindu Sikumbang Koto Ambalau (the Sikumbang in Koto Ambalau). This hindu comprises at least two unrelated Sikumbang groups and the four buah gadang of suku Pili.
3. Hindu Sikumbang Koto Kubang (the Sikumbang in Koto Kubang). This hindu consists of at least two unrelated Sikumbang groups and the three buah gadang of suku Tanjung which originally settled in the northern part of CKL.
4. Hindu 111 Saniniek (the three of one grandmother, ancestress). This hindu comprises buah gadang of suku Koto, Guci, and Melayu.
S. Hindu Jamb·ak Ujuang Balai (the Jambak at the end of the council hall). This hindu consists of two unrelated Jambak groups.
6. Hindu Jambak Batu Baji (the Jambak at Batu Baji). This hindu is composed of two unrelated Jambak groups and one group of Sikumbang buah gadang.
7. Hindu Caniago 5 Rurnah (the Caniago of the five houses). This hindu comprises 8 buah gadang of suku Caniago which form at least two saparuik groups.
8. Hindu Caniago-Selayan. This hindu consists of two unrelated Selayan groups and three buah gadang of suku Caniago.
9. Hindu Koto Jantan (the male Koto). This hindu comprises several (at least three) unrelated groups of suku Koto.
10. Hindu Koto Batino (the fernale Koto). This hindu is also composed of several unrelated Koto groups and in addition comprises those buah gadang of suku Tanjung which originally settled in the southern part of CKL. 11 • Hindu Guci Tangah (the Guci in the middle ), and
12. Hindu Guci Ateh (the Guci high up (the mountain)), which are both composed of at least two unrelated groups of Guci buah gadang.

IN MINANGKABAU 75

The hindu adat are formally subdivided into sabuah paruik. The sabuah paruik comprise buah gadang of one suku pusaka within the hindu adat. Depending on the number of buah gadang within one hindu there are one or two sabuah paruik, 4 buah gadang being the average of a sabuah paruik. The sabuah paruik are grouped together as far as possible according to genealogical closeness, but even they contain buah gadang which are not considered to be related to each other. As will be remembered, the related ones are called saparuik. Experts in CKL laid great emphasis on the difference: Buah gadang which are sabuah paruik were "disabuahkan", were made into one buah paruik. (Note again: In the literature the term sabuah paruik is of ten used for what is called buah gadang in CKL).

This rather complex arrangement will briefly be outlined in its historical development (as could be reconstructed according to the information given by CKL experts): At the time when the territory of the later nagari CKL was still forest, 7 panghulu with their buah gadang moved into the area. They took possession of as much land as they wanted and started to cultivate it. These were 3 panghulu of suku Sikumbang, and one each of suku Selayan, suku Guci, suku Koto,and suku Jarnbak. In the course of time, the original buah gadang split and other immigrants moved into the area. The first settlers allowed them to settIe nearby and to occupy and cultivate land. At that time, the newcomer groups retained their suku pusaka membership but had to subrnit to the socio-political authority of the panghulu of the oldest lineages. The 7 panghulu, the leaders of the first buah gadang to occupy the area, were styled panghulu 7 suku and their following suku adat. The population increased and new immigrants·settled in the area adjacent to the original settIement area. In the course of time, the inhabitants of the various small residential clusters established three kata. Kata are settIement centers which have already some formal structure but not yet the status of a nagari. They could be established in an area over which no nagari yet claimed sovereignty but also within a nagari area. In the latter case, the founders of a new kata could be given nagari status, too, by the government of the original nagari which forthwith had the position of a ''mother-nagari'' towards the new one. In CKL, however, no nagari had claimed sovereignty over the area. The centers of the three kata were located at some distance from the original settIement area (see map p. 76), and their foundation must have occasioned a shift in the traditional power-system from the old to the

, I500I750,1000,m

koto borders sidang borders settlements in order of historical development jOY'ong borders koto-fortifications original nagari territory CKL -First settlements and territorial divisions

IN MlNANGKABAU 77

new and more heavily populated settIement clusters. Apparently, not all newcomers wanted to subject themselves to the authority of the panghuZu 7 suku. So when the inhabitants of the three koto decided to establish one nagari in the area, the former 7 suku systemwas changed into the 12 hindu constitution. In each of the three koto were 4 hindu adat. The 12 hindu system is said to be the "cupak usaZi" of CKL-the "original measure/standard" which cannot be altered. 15 All new groups had to be incorporated into their framework. The sabuah paruik division, on the contrary, was flexible. A comparison of the sabuah paruik groupings in the tambo excerpts with the groupings given for the contemporary system shows that there had been several rearrangements of the buah gadang. When the nagari was founded, there were 60 panghuZu recognized as buah gadang leaders, and each hindu adat consisted of 5 buah gadang. These 60 formed the Karapatan Adat Nagari, the nagari adat council. For administrative and governmental affairs, the hindu-functionaries constituted the highest executive. Each hindu has one panghuZu bahindu-a panghuZu for hindu affairs, one juaro adat ("adat champion"), who has the function of an executi ve official, and an aook mudo ("young child"), who functions as assistant to the juaro adat. 16 The juaro adat form a separate council under the chairmanship of the tambang adat (the "mine of adat"), who generally is a panghuZu. The original 7 suku (adat) are still acknowledged, and the 12 panghuZu hindu are normally referred to as "the pang hu Zu of the 7 suku", although they mmmer 12. The panghu Zu of the 7 hindu which have grown out of the 7 suku adat are regarded as having a "somewhat" superior status, and in formal ceremonies their former position is indicated by special seating-arrangements. The juaro adat are likewise distinguished and one speaks of the juaro of the 7 suku and the juaro of the 5 hindu.

Both suku/hindu adat and suku pusako have different spheres of competence and a different, though overlapping, hierarchy of socio-political authori ty. CKL-adat says: "Pusako sakato niniek mamak-adat sakato 00- gari"-''Pusako is a matter of the lineage elders -adat is a matter of the nagari". Pusako matters are subjects dealing with heritage, property and panghuZu titles. Disputes about such problems should be settled in the suku-pusako hierarchy. Pusako also regulates the question of exogamy. In principle it is the suku pusako which are the exogamous units (see below D 111 2). Inter-buah gadang inheritance is also regulated according

PROPERTI IN SOCIAL CONTlNUITI

to pusako: If one buah gadang is extinct (punah) its property must be inherited within the suku pusako. The hindu system is concerned wi th adat, which is used here in the sense of ~ari administration and government, from which pusako (intra-lineage-, suku pusako-)affairs are exempt. Though the hindu are also spoken of in terms of matrilineal descent, hindu relations are irrelevant for matters such as property and marriage. Hindu, induek, means 'inother". The hindu II I Saniniek, the "three wi th a connnon grandmother", for instance, contains buah gadang from suku Guci, Kata, and Melayu. In adat, they are "one" -but they may intermarry, and if the Guci in III Saniniek should become extinct, their property would be inherited by Guci buah gadang of another hindu, not by the buah gadang of Kata or Melayu in their hindu. When the nagaY'i was founded, there were 60 buah gadang and panghulu. Since then the number of buah gadang has increased, and in CKL 100 panghulu are recognized as legitimate buah gadang leaders and members of the Karapatan Adat Nagari. The imposition of a new political superstructure by the Dutch has, however, seriously affected the adat constitution (see also Chapter 3). The Dutch had not recognized all panghulu as being of equal rank, and only a limited number had been given "panghulu-offices" in terms of the new administrative system. At the end of the last century, the Dutch had further forbidden the establishment of new panghulu titles, and the 100 panghuluships most probably are the number at which the buah gadang and panghulu system was "frazen in" by the Dutch. They do not seem to have realized that with the prohibition to create new panghulu- ships they also disturbed the adat mechanisms of group formation. A number of 'wild" panghuluships have been established, and the panghuluships have risen to a number between 113 and 139. It is not easy to determine which panghuluships are the 'wild" ones; even among the acknowledged adat experts of CKL there is some dis agreement about that. In 1975, there were only 20 panghulu who had officially been instalIed, among them two of the panghulu 7 suku. Their authority has decreased, but the adat constitution and the adat functionaries still play a considerable role in nagari poli tics. The Karapatan Adat Nagari still holds meetings, and sa do the juaY'o adat under the leadership of the tambang adat, who also ftmctions as the chairman of the Karapatan Adat Nagari • In terms of western conceptions of effectiveness, they cannot govern the nagari, but they are still influential enough to sabotage the national nagari administration, which, to a great extent, is also recruited from their numbers.

IN MlNANGKABAU 79

IV. THE TERRITORIAL DIVISIONS OF THE NAGARI

The terri torial structure of CKL is as complex as the adat and pusaka structure. There are several and partly overlapping territorial divisions of the nagari (see map. p. 76), which divide the inhabitants into adat-, neighbourhood-, religious- and administrative local communities (see also below E 11 on Residence).

1. The Adat Divisians af CKL Traditionally, CKL is divided into three kata. Besides being a territorial division of the nagari, the kata division is also a division of adat. The members of the four hindu localized in a kata formed semi-autonomous groups in adat. Adat matters and disputes usually came to the attention of "the nagari", i.e. the combined three kata, only af ter they had been discussed and decided within the kata. In former times, the people of one kata also shared collective liability in unsolved homicide cases. In the course of time, the kata division has been overshadowed by another adat division of the nagari territory. When the Dutch used the Minangkabau nagari as units of local government in the 1830'5, some nagari were divided, others united for administrative purposes. CKL was divided into two nagari, Candung and Koto Lawas. There were 5 hindu in Candung and 7 in Koto Lawas. Besides the division into kata, one spoke increasingly, but not exclusively, of an adat of Candung and an adat of Koto Lawas. When Candung and Koto Lawas were reunited in 1915, this distinction was retained.
2. The Buek Divisian Another important division of the nagari is the one into buek. The buek may best be described as neighbourhoods which have been constituted by agreement of the members of the various suku residing in the same residential cluster of the nagari. The buek are subdivided into umpuek (Ind.: keZampak, group, cluster), which are the smallest territorial units consisting of members of more than one buah gadang of one or of different suku. The buek have their own rules and regulations, buek perbuatan, concerning community and neighbourhood matters. Probably since the Padri-war, each buek has developed its own regulations about the surau (prayer house) and mosque. Besides the two basic principles of group and authority structure in

IN SOCIAL CONfINUITI

CKL which have already been mentioned (adat sakata nagari-pusaka sakata niniek mamak) there is a third one concerning the buek: "Buek sakata baliYI{Jka"-"neighbourhood matters are decided by the neighbours". The buek council is formed by the oldest men of the kaum resident in a buek. Besides, each umpuek has a panghulu buek, a panghulu for buek affairs, who usually is no panghulu according to adat, i.e. no incumbent of a buah gadang's saka. The panghulu buek are umpuek representatives, who are responsible to the buek for the maintenance of umpuek affairs. The buek structure probably precedes the foundation of the nagari and can be regarded as the oldest form of cross-buah gadang (suku) political and social organization. 17 Af ter the nagari had been founded, the old buek structure was retained, but with the increase of the population some of the old buek have been subdivided and new buek have been formed in formerly unsettled parts of the nagari. The buek borders partly cut across all other territorial divisions of the nagari. As buek are not concerned with adat (which is a nagari matter) the adat-territorial division into the three kata and later into Candung and Koto Lawas was less relevant than the actual territorial neighbourhood. In some parts of the nagari, settIement clusters which belong to two kata are much cIos er to each other than the other settIement clusters in their respective kata, and buek were formed across the kata-divisions or vice versa.

3. The Sidang System The terri tory of CKL is further di vided into four sidang. The sidang are religirus councils, which are attached to the four main mosques. Their function is decision making in religious matters, mainly in disputes about marriages. The contemporary sidang system in CKL most probably is the remainder of the attempt to establish a theocratie governmental system, which in the Padri era had beenundertaken in most nagari which had come under the political domination of the Padri forces (cf. AB 39: 212 ff.). In CKL, it was based upon the buek system. Several buek were united to form one sidang which, with the mosque as its center, was to be governed by the mosque officials and representatives of the buek. The highest buek representatives were cal led Tuangku or Angku in CKL; according to the number of buek united in one sidang their full title was Tuangku nan 3 or Tuangku nan 4. In CKL, the sidang system has been "adatisized", integrated into the adat political structure in the course of time. A sharp distinction was made between the "four sidang according to adat" and the

IN MINANGKABAU 81

religious village council which has been created within the local government system (see Chapter 3: 125 f.).

4. The Jorong Division Finally, the nagari is divided into village districts, jorong, as part of the local government system. The jorong borders to some extent run parallel with old buek borders. Each jorong has a village district head- man, wali jorong, as administrative head, who is subject to the village mayor, the wali negeri. In his daily affairs, the wali jorong is assisted by a jorong deliberation-committee.
C. THE ALLOCATION OF AUTI-IORITY
I. THE BASIC NOTIONS OF AUTI-IORITY IN MINANGKABAU ADAT The basic notions of authority in Minangkabau adat are weIl expressed in one of the most frequently quoted adat sayings (see e.g. R.M. Dt. Rajo Panghulu 1971: 80):
"Kamanakan barajo ka mamak mamak barajo ka panghulu panghulu barajo ka mupakat mapakat barajo kapado alua alua barajo kapado mungkin dan patuik patuik dan mungkin barajo kapado bana bana itulah nan manjadi rajo."

"The kamanakan are subject to the mamak the mamak is subject to the panghulu the panghulu is subject to the mupakat the mupakat is subject to the power of reasoning the power of reasoning is subject to what is appropriate and possible what is appropriate and possible is subject to truth i t is truth which is the highest authori ty (which becomes king) ."

Final authority thus is vested in abstract values, but what is appropriate,possible, and true, must be found through the exercise of human reasoning. As far as authority is vested in man, the adat saying weIl expresses the two basic notions of authority which pervade all Minangkabau adat:

PROPERTI IN SOCIAL CONrlNUITI

1. There is the idea that authority is vested in individuals (mamak, panghulu) who occupy social positions which are defined by sex, age, and offices. This authority is hierarchical. It gives the individual occupying such a position authority over other persons. The hierarchy of social positions corresponds to the political structure of the nagari, starting on the most exclusive group (jurai) level up to the most inclusive group, the nagari.
2. There is the idea that authority is, somewhat diffusely, vested in groups of persons. This finds its expression in the principle that all decisions affecting groups must be taken in a process of common deliberation, musyC/);)arah, and lead to a unanimous decision, sakato ("one word") or mupakat. This principle applies to all group levels, and it comple- ments and restricts the first principle according to which authority is vested in individual persons. The groups, in which authority is vested according to adat, are the groups we already have discussed: structured by matrilineal des cent or at least modelled on this principle. Authority is allocated to individuals as members of such groups. In the fOllowing, I shall describe the manifestations of the adat principles. The territorial and pOlitico-religious group structures have already been discussed and the offices of these structures have been mentioned. As they are of less relevance for property affairs, they need not be described in detail here.

Ir. AU1HORITI VESTED IN SOCIAL POSITIONS

1. Group Leadership The clearest manifestation of authority vested in social positions which are filled by individuals is the rule that each group has, or must have, a leader. This rule finds its expression in the not ion of "mamakship". Each group from the smallest jurai to the hindu adat must have a mamak. Mamakship in this sense denotes group leadership. It involves authority over the group members and the representation of the group or the individual group members in inter-group relationships. This pertains to all kinds of social relations: political, where the group is represented in the nagari; economic, where all property transactions between members of different groups (or between groups) need the presence and the consent

ORGANIZATION. IN MINANGKABAU 83

of the group leader; social, like cases of marriage, where the group leader must give his consent and represent his group and his marrying kamanakan in the ceremony. As regards intra-group affairs, the mamak (on whichever group level) is responsible for the maintenance of order in his group. He is the person whom one must notify when one wants to leave the nagari and to whom one must report when one returns. With respect to outsiders, the mamak is responsible for any acts which his group members may have done in violation of adat. He must take care that the fault is atoned by the appropriate measures. If not, it is he who will be sanctioned, too, not his group member only. Thus if a group member has violated adat by not adhering to the marriage rules, it will be his or her mamak who will be banned from nagari political and social activities, unless atonement for the fault has been made. In CKL, we observed several such cases where a mamak was held liable for an offence of his kamanakan. The mamak is also responsible for the execution of any decisions taken at more inclusive group levels. Mamakship in general is vested in the male sex (but see Kom 1941 on the "female mamak") and is defined by age: The mamak is the oldest matrilineal kinsman of the group, of a jurai of ~y size. No official process is required to make him mamak. If the present mamak dies, or when he is unable to fulfill his funct ion, the kinsman next in age will automatically assume the function of mamak. These principles are modified for those mamakships which are vested in offices, which exist from the level of buah gadang upwards. The system of offices will be described later.

2. AuthoY'ity Vested in FemaZes The mamakship is not the only individualized social position in which authority is vested. The mamak's authority covers the representation of the group completely, but in matters internal to the group authority is also vested in the position of the eldest woman of the group (jurai until the size of buah gadang). She is the "Zimpa:peh rumah gadang", the "strong pillar of the family house", and the "amban puruek-kunci nan tagueh"-"the strong lock of the chest" in which the harato pusako, the group's inherited property, is kept (see Willinck 1909: 392, 403, 601; Kom 1941: 319; R.M. Dt. Rajo Panghulu 1971: 50; I.H. Dt. Rajo Panghulu 1973: 50 ff.). She wields the highest authority within the house. But her authority is not restricted to purely domestic matters. For the oldest woman is the one "nan pagang harato", who controls and keeps the

PROPERTY IN SOCIAL CONTlNUITY

property, who has the dominant voice in the distribution of the group's property and any surplus the group's property may have yielded (for more details see Chapter 4). That these references to the woman's position are not just idealizations of the female'sjmother's role but a concrete reference to her function in social organization is amply borne out by the knowledge we have of Minangkabau social life during the last one and half centuries (compare Willinck 1909, Kom 1941, Tanner 1971), and it will also be apparent in the stories of property affairs (Chapter 5). In group internal affairs, she is even characterized as the highest authority: Willinck states "that in the Minangkabau family circle, the oldest common ancestress, if still alive, actually stood above the mamak. She remained in each case where family affairs had to be decided in the sabuah paruik or jurai, the highest authority (1909: 391 f., cf. Kom 1941:320). Yet in general, women cannot assume the function of group leader and outward representative. If males are absent, this function is generally assumed by the leader of the group which is most closely related according to matrilineal descent. Occasionally exceptions are made, but this seems to be restricted to group leadership in property affairs. 18 According to our findings, the principle that women cannot act as group leaders is adhered to. In one case in CKL, where the problem arose whether a woman could represent her kaum in a property transaction, the adat functionaries decided that she could not and that the mamak kepaZa waris of the most closely related kaum should do 50. The principle is also, with same exceptions, applied in the State Courts. 19

3. Authori ty Vested in the Father According to adat, only little authority is vested in the role of the father. The mamak is the center of authority; it is he who should disci- pline his kamanakan if necessary. The mamak represents his kamanakan in social and political matters, and the childrens' pusako affairs are also subject to the authority of the mamak and the childrens' matrikin in general. Minangkabau men as fathers are supposed "to carry their children", as mamak they are supposed to "lead their kamanakan". However, in their role of in-married husbands (urang sumando), men participate in the decision making processes which affect their childrens' property affairs and in the ceremonies which accompany their rites de passage. Besides, fathers can exercise some economie control over their wives and children by transferring their self-acquired property or some of their

IN MlNANGKABAU 85

own jurai's pusako-property to the conjugal household. But in principle the father's authority is limited to minor domestic matters (see also below the sections on marriage and residence). The adat conceptualization of the father's role, however, is modified through the Islamic notions about the father's position. In religious matters, fathers usually represent their children. In particular, fathers act as marriage guardians "according to religion" (waZi syarak) besides the mamak, the marriage guardian "according to adat" (waZi adat). The extent to which fathers can exercise authority over their children has also changed considerably during the last 150 years, mainly as a consequence of the decrease of the mamak's authority and an increasing economie orientation of men towards their conjugal household (this development will be analyzed more fully later in Chapters 5 and 6). Men live more permanently in the houses of their wives, they contribute more to the economic budget of their wife and children, and they usually pay the school fees which in former times were paid by the mamak. But the fact th at they do 50, and that they are consequently less in the house of their kamanakan (which means that their childrens' mamak also will stay most of the time with his children) does not mean that the authority over the children has been shifted from mamak to father. It rather has eoncentrated on the childrens' mother. According to our experiences, both with villagers and edueated townspeople most serious decisions and disciplinary measures were taken by the wife/mother, the husband/father taking care not to interfere with the education of ''her'' children (cf. Tanner 1971; Thomas 1977).

lIl. AlJTIlORITY VESTED IN OFFICES

The leadership positions of the buah gadang and of all more inclusive groups formed by buah gadang, are vested in offices. Offices are social positions that in principle exist independently of their incumbents. If the office is vacant, the function is either fulfilled by an office holder of another group acting as representative, or by the group's mamak as non-office holding "normal " group leader. Only wi thin the buah gadang are there same offices which are attached to concrete individuals. The offices are titled, and the office titles (gaZa bapangkat) and particularly the title of the panghuZu (the sako) belong to the inherited property (pusako) of the buah gadang's blood relatives(see below Chap-

SOCIAL CONfINUITY

ter 4: 164 ff.).

1. The Offiaes of the Buah Gadang
a. The PanghuZu The leadership of the buah gadang is vested in the panghuZu. The panghu- Zuship is the sako of the group, which descends through the generations. But the panghuZu is also the group's leader in the nagari. Thus if a panghuZu is to be instalIed, two sets of rules have to be adhered t~. One set refers to the choosing of the panghuZu-candidate by the persons to whom the panghuZuship belongs. The other refers to the rules by which the nagari political community accepts a new panghuZu as one of its leaders. 20 According to the principle of pusako, the appointment of the panghuZu is the concern of the group which holds the sako as inherited property (pusako). No panghuZu can be instalIed without the unanimous "round" decision of the group,without a kebuZatan kaum buah gadang. As a general guideI ine, the title is to descend from mamak to kamanakan, from MB to ZS. But this is, at least in the adat Bodi-Caniago, not a prescriptive succession rule in terms of genealogical positions. 21 It rather indicates that succession must be between matrilineal relatives and that it should be from a senior to a junior generation. But in principle, the candidate must be ahosen, and have all the attributes that Minangkabau adat demands of a panghuZu. 22 The principle of MB-ZS succession is further mediated through the institution of gadang baZega according to which the panghuZuship is rotated between the jurai or kaum of the buah gadang (see above). Sa the successor may weIl be a brother or grandnephew or even a very distant matrilineal relative of the former panghuZu. If the buah gadang members cannot agree upon a candidate and the musy(J1;)arah does not lead to mupakat, the sako is di Zipek, ''put aside", for the time being. In the case where there is no suitable candidate at all (no male buah gadang members, or only too aId or too young ones etc.) the sako is tatarueh, "deposited". If the sako is diZipek or tatarueh, the buah gadang has a ''normal'' mamak as group leader (or a panungkek, see pp. 82,88). He will act as mamak in all intra-group affairs and will in principle alsa represent the group in the nagari. Only on the occasions where a panghuZu must act in nagari affairs, will the graup be represented by one of the panghuZu who is "saparuik".

ORGANIZATION IN MlNANGKABAU 87

According to the principle of adat, the installation of a panghulu is a matter of the nagari, and the other panghulu must accept the new candidate as their equal. Non-acceptance is expressed by not attending the ceremony at which the highest nagari officials, the panghulu of the 12 hindu, the juaro adat and the anak mudo, finally invest the new panghulu with his title. The selection and installation of a panghulu is a long and expensive process. Several meetings must be held, in which the approval for the candidate must be formally secured from different groups of persons, starting with kin groups ~oving up through the more inclusive political groups and finally culminating in a meeting in which only the panghulu of the 12 hindu, the juaro adat, and anak mudo participate and in which the new panghulu is officially instalIed '~y the nagari". At all these meetings, ceremonial meals are held, and for the final ceremonies a buffalo must be slaughtered, a certain amount of rice must be given, and the adat-money must be handed to the adat-officials. 23 The panghulu can be instalIed in three different ways, which are distinguished according to the distance in time from the end of the previous panghulu's office-holding. The descriptions given in the literature are rather uniform, but there is some variation in the terminology:4 The following categories are used in CKL and also in the nagari 111 Balai and Padang Tarab, where we were able to attend altogether 4 panghulu installations:

1. Hiduik Bakarilahan In this case, the succession occurs during the lifetime of the old panghulu. This happens very rarely. Informants in CKL could not remember a single case, but there was a rumour that one panghulu, while still alive, wanted to give his title and office to a kamanakan.
2. Mati Batungkek Budi In this case the successor is determined shortly af ter the panghulu's death and publicly declared panghulu in a formal meeting of the highest adat-functionaries. This meeting should take place on the day of the death or immediately afterwards. The actual installation ceremony is then held af ter the funeral ceremonies, but must not exceed three weeks from the day of death. Until the installation ceremony has been held, the new title holder cannot act as panghulu, although the transfer of the panghulu title is and remains valid, and the new panghulu-~o-be is

PROPERTY IN SOCIAL CONTlNUITY

addressed with his new title. In CKL, there are several of such '~alf panghuZu" who have not yet held the installation ceremony, and who cannot "go to adat" as panghuZu. During our stay, one panghuZu died, and on the same day a buah gadang member was selected and declared new panghuZu in the manner described above. Due to nagari polities, however, the installation ceremony was not held in due time, although it had been scheduled during the meeting in which the candidate was declared panghuZu. Unfortunately, the resulting problems had not yet been solved before we left the nagari.

3. Mambangkik Batang Tarandam This is the ceremony by which a panghuZu is installed if his predecessor has been dead for a longer period than for which mati batungkek budi is allowed. This is the most elaborate and most expensive way to install a panghuZu.
b. The Panungkek (Tungkek) In CKL (as weIl as in other Bodi-Caniago nagari) a panghuZu can have one or more panungkek, "aides". The panungkek also carry the ti tIe Datuek, and their title is generally derived from the title of their panghuZu. So if the panghuZu is Dt. Sinaro, the panungkek's title may be Dt. Sinaro nan Tungga. The function of the panungkek is to help the panghuZu in the administration of the buah gadang. If the buah gadang consists of several kaum, a panungkekship may be created and the administration of one or more kaum may be entrusted to the panungkek. The office of panungkek is closely connected with that of his panghuZu. The panungkek is instalIed together with his panghuZu, and continues to function as long as a new panghulu is not instalIed. If a new panghulu is instalIed, he may confirm the old panungkek, but the panungkek mayalso be relieved of his office and a ncw one appointed. If the panghulu dies, the panungkek assumes most of the panghulu functions in buah gadang internal matters. In adat, in the nagari, he can represent his panghulu only to a limited degree. It is not unusual that panungkek try to establish themselves as successors when the panghulu has died. This is called "bulan manjadi matahari"-"the moon becomes the sun". Particularly in cases of gadang balega, where panghuluship and panungkekship are rotated, this of ten leads to buah gadang cleavage in the form of baju sehelai dibagi duo (see above p. 69). In contemporary CKL, there are several groups the status of which -kaum or buah gadang-and the

HINANGKABAU 89

status of their leader -panungkek or panghuZu-are unclear.

c. The Angku In CKL, each panghuZu who is not the eldest lineage member, has an ad- visor, an angku. Angku is used here to denote the adat-office. Besides, it is a title of Islamic functionaries, it can be conferred upon elderly persons as an honorary title, and is also used as a polite form of address. The angku according to adat is the eldest and wisest man of the buah gadang, who is to give advice in all matters, particularly in adat matters, to the young and perhaps inexperienced panghuZu. He is instalIed together with the panghuZu, and his title is the same as the panghuZu's, with the difference that, instead of the Datuek title prefix, the angku has the "Angku" prefix. The angku of Dt. Sinaro thus is Angku Sinaro. In CKL, the groups under a panungkek usually also have their angku.
2. The Offices in the Hindu System The offices in the hindu system are quite complex. The information which was given in CKL by informants and which could be found in the excerpts of the village-tambo was partly ambiguous or contradictory. It seems that some offices were created af ter the Dutch had established their administrative system as it has been also reported for some offices in district 50 Koto (see De Rooij 1890; Leyds 1926).
a. The PanghuZu Bahindu Each group in the hindu system has a panghuZu as leader who is responsibIe forthe management of hindu (adat) affairs, but who for the rest functions as primus inter pares with the other panghuZu. On the buah gadang level, the panghuZu are the panghuZu of the buah gadang. On the sabuah paruik level, there is a panghuZu babuah paruik. This is one of the buah gadang panghuZu, who has the additional function of running the sabuah paruik's adat matters. The hindu also has a panghuZu bahindu, who is responsibIe for all hindu-internal adat matters. The authority of the panghuZu bahindu thus can extend over panghuZu of different suku pusako. Such panghuZu bahindu exist in each hindu. But besides, there are also panghuZu basuku, as leaders of the suku pusako within hindu groups. The actual practice is as follows: The panghuZu 7 suku are "panghuZu suku". In their hindu, they function as hindu-Ieaders, in the other hindu it is the panghuZu bahindu. The panghuZu 7 suku are the oldest

IN SOCIAL CONflNUITY

panghuZu in their hindu, the heads of the buah gadang which in former times had founded the suku adat/hindu adat. In their hindu, the panghuZu bahinduship is usually given to the oldest buah gadang of the younger sabuah paruik. In some hindu (of the other 5) the panghuZu bahinduship is rotated between two buah gadang, the oldest buah gadang of the hindu. Thus in the hindu 111 Saniniek, the panghuZu bahinduship is rotated between a buah gadang of suku Guci and of suku Melayu, and similar arrangements exist in other hindu where no "oldest" buah gadang isrecognized. When a meeting of the 12 panghuZu of the 12 hindu took place, the panghuZu 7 suku went to represent their hindu; in the other hindu the panghuZu bahindu were the representatives. The panghuZu bahindu offices are connected to the particular panghuZu titles. If a new panghuZu is instalIed, his status within the hindu is determined and restated. If the panghuZuship is vacant, another panghuZu of the buah paruik will fill the vacancy of panghuZu bahindu, not as office holder in his own right, but as representative. His acting as panghuZu bahindu for his col league does not make him a representative of the non-installed panghuZu in buah gadang matters, too.

b. The Juaro Adat The juaro adat are the "executives" of the hindu, who have to manage hindu affairs under their panghuZu. Juaro carry titles, but there are two or three titles for each juaro, one of which has to be assumed by the newly instalIed juaro. The installation of the juaro is similar to, though less elaborate than, the panghuZu installation. The office of juaro is the property of the buah gadang of the panghuZu bahindu. This also applies to those hindu which have a panghuZu 7 suku as leader. When the panghuZu bahinduship is rotated, the juaro is rotated as weIl, the juaro being then held by the non panghuZu holding group.
c. The Anak Mudo The anak mudo act as assistants to the juaro and panghuZu, and are used as messengers and go-betweens in adat affairs. In addition, the anak mudo have to be weIl versed in the pidato, the ceremonial recitals of history and adat which fill a large part of the adat ceremonies. In adat ceremonies, such as panghuZu installations, they serve the panghuZu and juaro. The anak mudo also carry titles, but no special installation ceremony was held for them. They could be instalIed whenever a ~ore important ceremony was held in the nagari. In principle, the anak mudo

IN MlNANGKABAU 91

were chosen for their capabilities, and their office was not the definite property of a buah gadang. In the two Sikumbang hindu in which other suku were incorporated, the other suku (Tanjung and Pili) also had one anak mudo so that the actual mnnber of anak mudo was 14.

3. The HierarchicaZ Structure of SociaZ positions of Authority The adat saying already quoted "kamanakan barajo ka mamak-mamak barajo ka panghuZu"-" the kamanakan are subject to the mamak, the mamak is subject to the panghuZu", expresses the hierarchical order of the leadership positions within the buah gadang. Leadership positions derive their status from the status their group has in adat, and a definite hierarchy exists, from the smallest group, the jurai with its mamak, to the largest, the hindu adat with the panghuZu bahindu. This hierarchy is relevant for two fields of social activity:
1. It must be followed in the processes of decision making in conflicting issues. The conflict should be solved at the lowest level. If it cannot be solved, it must be brought to the next higher level until it reaches the highest forum, the Karapatan Adat Nagari. For *adat-*and pusako matters, different though overlapping hierarchies exist. In pusako matters, the way to be followed is from mamak to panghuZu; from the panghuZu to all the panghuZu of the sabuah paruik who are of the same suku in the same hindu; then to all panghuZu of the same suku in the same hindu; then, such matters go to all panghuZu of the same suku in the nagari. In adat matters, conflicts go from the mamak to the panghuZu, but then the juaro adat should take over, exercising his function for the panghuZu bahindu. If the problem cannot be solved by the (Juaro) hindu, it must be brought to the 5 hindu(in Candung) or the 7 hindu (in Kota Lawas). The final forum for both hierarchies is the Karapatan Adat.
2. Decisions made on a higher level (i.e. in matters concerning the implementation of nagari polities or suku-wide problems such as a change in the exogamy rules) have to deseend according to this hierarchy. Minangkabau adat expresses these two principles with the adat saying: "Bajanjang naiek-batanggo turun"-"One has to go up the stairs -one has to go down the ladder". No step may be left out. If people approach a higher forum immediately, this is ''wrong'' according to adat; the parties will be reprimanded and the issue not entertained. This is, of course, the ideal order which has been heavily influenced

PROPERTI IN SOCIAL CONflNUITI

by the other available means for conflict resolution provided by the buek/sidang system and the local government and judicial systems. But the principle of bajanjang naiek-batangga turun is still used in nagari politics and processes of conflict resolution, and has been extended to include the State Courts, which sometimes refuse to hear a case unless the adat-hierarchy in the nagari has first attempted to deal with it. 25

IV,AlITHORITI VESTED IN GROUPS

The second basic principle of authority makes the exercise of authority a matter of all group members. Here the ideas of togetherness, unanimity, and equality of the group members are stressed. This finds its expression in the principle of the ''musY(J1;)arah until mupakat": "Decisions concerning group interests must be taken by the group members and lead to a decision in which all concur". Minangkabau adat says: "Bulek aie dek pambu lueh - bulek kata dek mupakat": "(as) the water gets round in the bamboo-pipe-the words (decisions) get round through the mupakat". This principle is highly valued in Minangkabau, and the Minangkabau use it to define the character of their society in the terms of the mupakat-democracy, which they consider superior to other forms of allocation of social authority~ The principle minimizes the power exercised by individuals by virtue of their social positions of authority, for the most important issues in Minangkabau social and political life (property, panghulu installation, marriage etc.) are matters which affect the group and are decided by musy(J1;)arah. The general principle works at all group levels. However, a distinction must be drawn between those groups which are, in this respect, regarded as a group of individuals, and those groups which are regarded as being composed of sub-groups. In the former, all group members of "reasonable" age and of both sexes take part in the decision-making process. In the latter, only the leaders of the sub-groups, thus males only, participate as their groups' representatives in the decisionmaking process on a higher group level. In former times, the border case probably was the buah gadang, in contemporary CKL it is the kaum: On the supra-kaum level, the representatives of the groups decide, within the kaum all kaum members participate. The musy(J1;)arah until mupakat principle is, of course, an ideal, and a brief comment may be made on the actual practice. Actual decision

IN MlNANGKABAU 93

making is generally prepared in smaller groups or by individuals who make their own policy and recruit support for it. The decision has of ten been taken already when the formal meeting, in which the mupakat is to be secured, starts. The ideal equality of the participants is modified to a great extent by the personal authority, economic status, and, in the political field in particular, by power sources outside the adat system. There is a rnultitude of evidence, both in the early literature on Minangkabau as weIl as in our own field-experience, that these sources are manlpu " I ate d as f ar as pOSSl "bI e. 27 In kaum-internal affairs the same holds true, but here another factor heavily influences decision making: the strong position of women, the older women in particular, who "swing" most decisions or prevent effective decisions from being made. It must be a very strong mamak who wants to control his female lineage members effectively -within the kaum. Externally, the mamak skilfully operate power sources which are usually not available to women. The principle that the kaum must be represented by the mamak kepaZa waris in property matters in the State Courts has led to frequent abuse of the mamak position. 28 This has led to a shift in kaum-internal authority relations and to the not uncornmon occurrence of mamak cheating their female kaum members on the basis of their artificially strengthened mamak-position. Yet the force of the musyawarah/ mupakat principle should not be underestimated. It is true, that "round" decisions are less frequently taken, but the actual force of the principle resides in its negative aspect: If no mupakat is reached and no unanirnous decision taken, nothing will hapen, and undecided problems and conflicts dominate the social and political life of the nagari.

V. CONCLUSIONS The two basic conceptions of authority are clearly objectified in adat. In practice, and particularly in kaum-life, they are hardly distinguish-able and seem to flow into each other. It is striking how closely the two Minangkabau principles correspond to the two analytical principles of governmental activity, which Smith has elaborated in his famous essay "On Segrnentary Lineage Systems" (1956). The allocation of authority to the group leaders and the kamanakan barajo kamamak principle correspond to the principle of "administration" (1956: 49), and the allocati(;m of authority to the groups and its exercise through musyawarah~processes to

PROPER1Y IN SOCIAL CONfINUI1Y

the principle of "political activi ty" (1956: 48 f.). Whereas one may question whether "administrative" and "politicaI" are the best labels for these different kinds of processes, the distinction itself is extremely valuable and fully supported by the Minangkabau data. As Smith has noted, the principles, though analytically distinct, frequently occur together (1956: 48) and th~s certainly is the case in Minangkabau, most obviouslyin kaum-social life and decision making. Yet what goes on in these processes could not be better described than in Smith's words: '~ereas the form of political systerns is segmentary, and only displays hierarchical patterns to the extent that the political structures are directly involved in administration, the form of an administrative system only displays segrnentary patterns to the extent that the administration itself constitutes a political system" (1956: 49). The words "administrative" and "politicaI" have only to be substi- tuted by the two Minangkabau principles of authority: Kaum administration is in the handsof the mamak and is hierarchical as far as it involves the execution of musyawarah decisions taken at higher group levels as weIl as everyday organization of kaum life. But insofar as decision making is concerned that touches the interests of the whole group, the kaum constitutes a political system (in Smith's words) in which authority is segrnentary, the individual kaum members being the segments. On higher group levels, characterized by their hierarchical order expressed in the saying " bajanjang naiek-batanggo turun", this '~ierarchic devolution of authority and functions is transformed into a segmentary contraposition of components" (Smith 1956: 49) when policy decisions (musyawarah-decisions) are taken by the representatives of the component subgroups.

D. RELATIONSHIPS BETWEEN INDIVIDUALS AND BETWEEN INDIVIOOALS AND GROUPS

I. INfROOOcrORY NOTE

Each Minangkabau has a complex set of relationships to the other members of his nagari and to the groups which exist therein. These relationships are expressed in a similarly complex system of references and, to a rnuch lesser degree, by the system of terms by which the Minangkabau address each other. Some of the relationships and their social functions have already been described in the previous part of this dhapter: The relationships arising out of cornmon group membership. As

ORGANlZATION IN MlNANGKABAU 95

groups play an important role in social and political life, reference to common group membership is of ten made when inter-individual relationships are characterized. This is done by the expression that one is/is not of "one" (sa-)group with the other person/group referred to, the kind of group being specified. Most of the groups have already been described: It can be a territorial group (sa-buek, sa-kata, sa-nagari), a descent group (sa-jurai, sa-kaum, sa-buah gadang, sa-paruik, sa-suku), or a group formed according to adat (sa-buah paruik, sa-hindu). Another quite frequent mode of reference is the indication of the common sharing of a social function or relationship, which is specified in the reference. Thus ego will denote his relationship to another individual or to a group by naming the social function which they share or which pertains between them. E.g. ego will state that his relationship to X is of one property (sa-harata), one heritage (sa-pusaka), of the same adat (sa- adat), or that one pays debts together and receives outs tanding debts together (utang sama dibaie-piutang sama ditarima). These functions are generally attached to groups, but the reference is made without explicitly naming the group. Within the complex set of relationships with his nagari co-citizens, a person's kinship and, to alesser extent, his marriage relationships take a central place. These shall be described in some more detail.

Il. 1HE KIN

The Minangkabau are of the opinion that both father and mother have a part in procreation, and that social relationships come into existence by the fact that a child is bom to his married parents. By extension, ego is related to all persons to whom his/her parents are related by a series of filiative links. This aspect of bilateral filiation in Minangkabau kinship has aften been overlooked or not sufficiently emphasized by previous authors on Minangkabau. 29 The adat saying "ayam gadang indak bataZua"-"the cock lays no eggs", is of ten quoted in support for statements that "there are no kinship relations between the father and his children" or that "the children belong to the mother's side only". However, this saying merely refers to the principle of incorporation into groups on the basis of matrilineality; it contains no statement about the establishment of relationships through procreation in general: Fathers do not bear children in patrilineal societies either.

PROPERTY IN SOeIAL CONTlNUITY

Ego can denote most of his kin by two modes of reference: By individualizing reference wh ere ego refers to a kinsrnan/wornan as an individual, and by the use of social group terrns by which ego either refers to his relatives as a group, or to individuals as mernbers of such a group, or where ego, as a mernber of his own group, denotes individual relatives (for a more systematic account cf. Thomas 1977).

1. Individualizing Reference The recogni tion of "abstract" bilateral kinship is reflected in the terrns by which ego denotes his kin as individuals. With two exceptions, the terminological system for cognates is of the generation (Malayan) type: The same term is used for relatives on the same (known or assurned) generation level, and the kind of the relationship is specified by qualifiers indicating sex, relative age, or closeness. On ego's generation level, all kin are labelled dansanak-"sibling". Separate terrns can be used to indicate younger (adiek) and older (kakak) siblings. Older siblings can be distingUished according to sex, uni (elder sister) and uda (elder brother). On the +2 level, all grandparents and their dansanak are called niniek or (in)yiek. On the -2 generation level, ego's and his danqanaks' grandchildren are called (anak) cucu. On the +1 and -1 levels, there is an exception to the genera I principle: All matrilineally related males on the +1 level are called mamak. In eKL, mamak is usually employed to denote the +1 generation males within one's suku pusako. Only in the case of Caniago and Selayan this use of mamak was extended to both suku, which we re said to have been "one" in former times. The inverse term for matrilineally related persons of both sexes, on the -1 level, is kamanakan. The father and his matrilineal collaterals are cal led bapak, the inverse term is anak, children. All kinswomen on the +1 level are uniformly cal led biyaik or amak (in CKL), and of ten the Indonesian ibu is also used. The inverse term for the children is anak. As has been mentioned before, the terrns mamak and kamanakan are also used to denote group leader and group fOllowers, irrespective of their genealogical position. These terrns are qualified by additional terrns which indicate:
* the sex of the pers on referred t~: laki2, male, and parampuan or padusi, female.

IN MINANGKABAU 97

• nearness: Nearness can be expressed explicitly as genealoBical nearness through the reference to the comrnon ancestor/ancestress which ego shares with the pers on referred t~. Thus one speaks of being dans a- nak saibu or dansanak saniniek-siblings of one mother or siblings of one grandmother. Through this usage, also half-siblingship is expressed: dansanak saibu (saja)-siblings with a comrnon mother (only) and dansanak sabapak, siblings with a comrnon father (only). Nearness can also be indicated in a more general way through the terms of dakek (near) and jaueh (distant, far), but it is clear from the usage of these terms, that nearness is here also conceived of in terms of the genealogical levels of the respective apical ancestresses (cf. Thomas 1977).
• ego's direct ascendant or descendant: This is generally expressed by leaving away qualifiers.
• the relative age of one's direct ascendants' siblings: tuo (older, oldest) tangah (in the middle) and (k)etek (younger). Thus amak tuo means MeZ, bapak ketek means FyB.
  2. References Involving Group Terms In addition, groups of kin can be denoted by the use of social group terms. Reference to individuals as members of some group can also be made by saying that he/she is a member of that group. As most social functions in Mînangkabau are attached to groups, this part of the referential system most clearly shows the basic principles of social organization. In contrast to abstract bilateral thinking, here emphasis is put on matrilineal descent. The kin groups referred to are all structured according to matrilineal descent. Relationships to them are based either on matrifiliation or patrifiliation. By matrifiliation, ego becomes a member of his mother's group. By patrifiliation, ego does not become a group member, but important relationships are established between him/her and the matrilineal group to which his father belongs.
  a. Relationships Involving Patrifiliation Any ego's father's matrilineal group is cal led bako. In CKL it was applied to the kaum and buah gadang of the father. The term designates the group as a whoIe. Each member of the bako, with the exception of the father himself, can be referred to as being bako, without any further differentiation according to the sex or age (relative or genealogical). Reci- procally, all the group members (the bako) refer to the real children

PROPERTI IN SOCIAL CONflNUITI

of their male group members (thus excluding ego as a group member) as anak pisang, no matter in which genealogical position the respective male kaum member stands to the speaking ego. In some nagari, there are still special terms which denote the bako of the father and the anak pisang of the anak pisang (Thomas 1977). In CKL, only the father's bako was recognized as such and labelled induek bako,the ''mother bako". This was done in reference to panghulu installations, where the father's bako still has a specific function. In general, however, the terms bako and induek bako were employed coterminously in CKL. A category of "anak pisang of the anak pisang" was not conceptualized in CKL. The anak pisang in CKL were all children of one's male group members in the same kaum/buah gadang. However, the expression anak ujuang ameh was used in reference to children of the male members of other kaum in one's buah gadang; the same expression was also used to refer to the children of males of other buah gadang in one's sabuah paruik. The anak ujuang ameh also had a function inpanghulu installations, but no inverse term was used for the group to which the panghulu belonged. The panghulu in this case was not bako. The relationship between the bako and its anak pisang is loaded with important social functions (see Korn 1941; Fischer 1964) which will be described in detail for property matters in the following chapters.

b. Relationships Involving Matrifiliation By matrifiliation, ego becomes a member of his mother's group and of all groups of which his mother's group is a sub-group. Ego can denote all his group members by indicating common group membership and specification of the group. Besides the group terms already given in the previous parts of this Chapter, the category warih must be mentioned. Warih, in Indonesian: waris, is derived fram the Arabic warith, which means heir. It is used with this meaning in Indonesianas weIl as in Minangkabau. In concrete cases of inheritance, warih is used to denote the heirs, also called ahli warih. In contemporary usage, all heirs-be they the children or the kamanakan-are called waris/warih. But besides, warih is also used to indicate all of ego's living group members, whether or not ego would actually inherit something from them or they from ego. It is in this sense that the group head is the mamak kepala waris, the mamak who is the head of the warih ._30

IN MlNANGKABAU 99

In addition, the warih eategory ean also be used to express relationships between groups. Ego as a member of his own group refers to other groups as his group's warih. These group-warih are qualified by terms which indieate distanee:

Distanee ean mean genealogieal distanee, measured in eommon matrilineal des cent, or distanee in adat, or both. In the literature, the warih- categories are described in both eontexts, sometimes by the same author (I.H. Dt. Rajo Panghulu 1973: 57 for genealogieal meaning, and 1974 :44 for adat-meaning). This is probably due to the faet that the term is used in the context of the Minangkabau concept ion of inheritanee, and of inter-group inheritanee in partieular, whieh ean also be based upon adat (i.e. non-genealogieal) relationships. In CKL, the eategory was usually employed in the genealogieal meaning to indieate matrilineally related kin groups. The Minangkabau referential system is eomplieated in that the same labels may be used to denote both kin, aeeording to the Minangkabau conceptions of filiation and descent, and non-kin. During the deseription of the internal strueture of the buah gadang lalready mentioned that the voeabulary of matrilineal des cent is also employed to denote persons with whom there is definitely no filiative or descent relationship. Likewise, some of the terms denoting kin are also used to address kin and non-kin, and the same holds true for referenees based upon eommon funetions. I shall not attempt here to analyse which meaning, in the case of multiple meanings, is to be eonsidered the "primary" and whieh the "extended" one. In my view, all terms should be regarded as soeial eategories which are defined by different speeifies, genealogieal and others. But I should like to drawattention to Thomas' recent study in whieh data bearing on the so-ealled Leaeh -Lounsbury (soeial eategories vs. extensionist) eontroversy are discussed. His eonelusion,that the modified vers ion of the extensionist approach whieh he proposes is the most fruitful way to explain Minangkabau kinship eategories,seems very plausible to me. 31

IN SOCIAL CONTI NUl TI

I I I. MARRIAGE

As in most societies, marriage in Minangkabau is not an affair of just the two spouses but involves their kin as weIl. Through marriage, relationships are established between the spouses and the spouses' kin. For a better understanding of these relationships, a brief account must be given of the rules according to which marriages are organized and which affect the choice of marriage partners (for a recent description of Minangkabau marriage adat and ceremonies see Sjafnir et al. 1973).

1. The Organization of Marriage According to adat, marriages must be arranged by the spouses' kin. This rule particularly pertains to first marriages. In former times, boys were reported to be married off at about the age of 15 and girls at the time of their first menstruation(Loeb 1935: 114). In contemporary CKL, the average age at which people marry has risen considerably. Of the 186 marriages contracted in the years 1973 and 1974, only 15% of the boys had married at an age below 19, 58.6% had married when they were between 20 and 25 years old. 74.2% of the female marriage partners were between 17 and 33 years old, and only one marriage had been with a 16 year old girl. 32 The ma in organizers of a marriage are the girl's kaum members. The kaum of the girl must take the initiative. Once a girl has reached a marriageab1eage, her mamak must organize a meeting of the kaum in which the problem of the marriage is discussed. The girl 's father and some other members of the bako are invited. At this meeting, the potential candidates (there should always be more than one) are discussed. Once a preliminary choice has been made, the respective elders of the boy are approached. Marriage involves elaborate ceremonies which are held in the (jurai's) houses of the groom and the bride, and the groom is officially "fetched" from his (mother's)house to his new house, the house of his wife (for more vivid accounts see Verkerk Pistorius 1871; V.d. Toorn 1881; Van Eerde 1901; for a recent description of such a meeting see Tanner 1971: 289). In contemporary CKL, marriage involves no major economic transactions. Each group pays its respective costs, which may be substantial as the ceremonies and the meals given during the ceremonies involve a large number of guests. But there is no major gift giving or gift exchange. From earlier accounts of Minangkabau marriage, and also from contemporary accounts from other na,[iari i t seems, however, that this is not the dominant practice and

IN MINANGKABAU 101

rule in Minangkabau. It seems to be (have been) customary in Minangkabau that the bride's ~aum makes substantial gifts to the groom and his jurai (see Loeb 1935: 115; Naim 1974: 428; Thomas 1977: 66). Islamic law has had an important impact on marriage in Minangkabau. It has been taken as the basis for the official administrative regulations concerning marriage. The marriage is officially validated (in terms of Islamic and statutory law) by the Tuan Kali, the mosque official, and it must be registered at the office ofthe village Registrar of Marriage and Divorce, and Remarriage (P3NTR, Pembantu pegawai Pencatat Nikah, Thalak, dan Rujuk). Marriages are officially valid even though adat rul es have been violated. However, if the marriage has not been contracted in accordance with adat, if e.g. the adat ceremonies have not been held, the marriage will not be recognized in the nagari, and the spouses and their mamak will be punished by bamüng them from certain activities as long as they have not atoned for their fault by inviting the niniek mamak, the community's adat elders, to a ceremonial meal in which they admit their fault and ask for forgiveness. In practice, marriages thus are subject to a dual set of rules. In general, both sets of rules are adhered to by combining the necessary actions in the marriage ceremonies. In 1974, a new uniform marriage law was enacted for Indonesia, which had not yet come into force when we left Minangkabau. Some details of this law will be discussed later in the study (Chapter 4: 213). In CKL, as weIl as in other parts of Minangkabau, the number of marriages initiated by the young people themselves, has been increasing. This is normally tolerated 50 long as the young lovers "keep to the rules". This means, that they have to report their choice to their mamak, and then the indicated boy will be "chosen" as future husband in the kaum meeting in which the candidate is discussed and the usual formal contacts will be determined by the girl' s kaum. Failure to "keep to the rules" will mean that the girl's kaum will not consent to the marriage and not stage the ceremonies,which has the consequences described above. In the nagari, young people are usually not in the position to evade the social pressure following such an affront to their elders.

2. Rules Affecting the Choice of Marriage Partners Minangkabau adat poses several restrictions upon the choice of potential marriage partners and considers some uni ons as particularly appropriate.

IN SOCIAL CONfINUITI

a. Nagal'i Endogamy Until the middle of this century, the nagal'i were endogamous units. Exceptions were made for those nagari which had developed out of one common mother-nagari. The rule was prescriptive, violations were punished with temporary or even permanent33 expulsion from the nagari. Due to growing inter-nagari relationships and the increasing mobility of the nagari inhabitants, dissatisfaction with the endogamy rule grew, and it was officially abolished by decisions of the Karapatan Adat Nagari in most nagal'i in the 1950'5. 34 Breaches of the rule were known in CKL, and one informant, now aged 72, claimed tha t he had been the first pers on to marry out. He was punished by exclusion from adat activities until he had atoned for his fault. In contemporary CKL, most persons still find their partners in the nagari. Of the 186 marriages contracted in 1973 and 1974, 9 men (4.8%) and 12 women (6.4%) had married out. In two cases, both spouses did not originate from CKL.
b. Suku Exogamy As a general principle, it is the suku pusako which is the exogamous unit in CKL. The acknowledged exceptions to this rule are said to be based upon agreements made by the respective lineage elders in times which were not remembered anymore.These exceptions pertain to suku Sikumbang, where marriage is allowed between'some (but not all) subgroups which are formed by sabuah paruik, or groups of sabuah paruik, in thesuku-within-hindu of Sikumbang. This was explained by the fact that these groups had, when settling in the nagari, no genealogical relationships whatsoever. The other main exception was, that persons of the suku Caniago and Selayan could not intermarry. It was explained, that Caniago and Salayan "perhaps" had been "one" in former times. In CKL, suku pusako exogamy, with the exceptions mentioned, still is the legal and statistical rule: Of the 186 marriages contracted in the years 1973 and 1974, only 10 (5.4%) were between members of the same suku, and 6 of these marriages were between members of suku Sikumbang where intermarriage is partly permitted. 35 Violations of the exogamy rule are still regularly sanctioned in CKL: the parties must invite the adat elders to a communal meal and they must admit their fault and ask for forgiveness. The character of this sanction, however, seems to change slowly from "punishment" to "fee".

IN MINANGKABAU 103

These data from CKL should not, however+ be taken as being representative for Minangkabau in general. Other reports suggest that in other Minangkabau nagari the formerly common suku exogamy rule has lost most of its force and that much smaller social groups have become t e h exogamous unltS.. 36

c. Second and Further Marriages

Polygyny is allowed. According to Islamic law, men may be married simultaneously to as many as four wives. Whether polygyny was allowed in Minangkabau before the coming of Islam is not known. There are several adat rul es which restrict the taking of a second (and third etc.) wife: During the lifetime of the first wife, no woman from the first wife's group may be married, "group" meaning the suku- within-hindu groups in CKL (for nagari Gurun compare Thomas 1977: 98 f.). A man should further not be married to two (or more) women from the same residential area (umpuek). According to the rationalization of the villagers, the wives' houses, their bathing place, and also their property should not be close to each other. For they would become ashamed, malu, if they saw their husbands working with or going to the house of the other wife.

d. Social Rank Marriage partners should in principle be of the same social status. In determining a person's social status, not only his status as kamanakan (i.e. his or her status within the buah gadang, and of his buah gadang in relation to other buah gadang, with respect to the original settler, ex-stranger, ex-slave differentiation) is considered but also the status of his father and his bako. It is, however, open to the deliberations of the girl 's kaum to choose a partner of different rank. Hypogamy for females was said tohave been forbidden in former times, male hypogamy tolerated (compare Thomas 1977: 102). In the course of history, these rules have undergone change; in particular they have been influenced by the new status attributes provided by the administrative, economic, and religious status hierarchies.
e. Parallel Cousins Parallel cousin marriages are forbidden. For matrilateral cousins this al ready follows from the principle of suku exogamy. Patrilateral parallel cousins are considered to be "too closely" related; the explanations

IN SOCIAL CONTINUITY

given for this rule differ widely (compare Besseling 1904; Fischer 1964: 105; Thamas 1977: 93 f.).

f. Preferred Unions

There are same kinds of marriages which are considered ideal in Minangkabau. The most ideal form of marriage is with one's cross cousin. The two forms of cross cousin marriage (CCM) are expressed by distinct ex- pressions wl1ich take the point of view of the male spous.e. Matrilateral CCM is expressed as "puZang ka anak mamak", to return to the child of the mamak, meaning a marriage of a male with his MBD. Patrilateral CCM is expressed by "puZang ka bako", to return to the bako, indicating marriage with the FZD. Villagers in CKL explain the ideal character of the CCMs by reference to their value in property strategies and by the fact that they reinforce affinal relationships which have been established one generation before. Among anthropologists, the form and social function of CCM in Minangkabau are topics of discussion. De Josseling de Jong (1951) developed the hypothesis that in early Minangkabau social structure, the matrilateral CCM was the only ideal marriage, and that the Minangkabau social system was based upon a system of asymmetrie marriage alliances.The patrilateral CCM by this interpretation is a recent development. This view has been accepted, though with less caution than it had been originally proposed, by some writers (see Umar Junus 1964; Maretin 1961; Kahn 1976). Other authors have received this hypothesis with same reservation (Leach 1952; Kloos 1963; Fischer 1964); and Thomas (1977) has systematically refuted it on the basis of his recent field research. My reading of the literature and our own field research has led me to essentially the same conclusions wnich Thomas has drawn. The issue, however, is too camplex to be dealt with adequately in this study. I shall discuss the property argument which bears on it later in this study (Chapter 5: 295 ff.). For the rest I content myself with stating that in all reports on Minangkabau both forms of CCM are given as ideal marriage, and that there is rather a bias in favour of the patrilateral CCM. 37 In my interpretation, which will be justified more fully elsewhere, CCM was an option given to the girl's kaum: It had the right to ask a cross cousin in marriage.; and such a uni on was considered ideal; but the exercise of this option by the girls's kaum was in no way prescriptive. And I further tend to support the view that the patrilateral CCM was the "more ideal" match in former Minangkabau (see below Chapter 5: 297 H.).

IN MlNANGKABAU 105

The marriage of a sister and brather of one kaum with a brather and sister of another kaum, "batimbang baluak", freely: "balanced opposition, balanced exchange" is also considered ideal as it is said to produce "strong connections" between households (see Thomas 1977: 97). The remarriage of a widower with a sister of his deceased wife, and the remarriage of a widow with a brather of her deceased husband are also considered ideal. Bath marriages are called "ganti lapiek" or "batuka lapiek","to replace" or "ta change the sleeping mats".

3. DivoT'ce Divorce is regulated according to Islamic law. Men can divoree their wives by uttering the Islamic phrase of thalak. Wamen must obtain a declaration of divorce from the Religious Court. In Minangkabau, wamen can obtain a divorce rather easily due to the thalak taklik, the "suspended" thalak, an agreement in which the husband declares his thalak as having fallen under certain conditions. In Minangkabau, as in most Indonesian societies, the thalak taklik is a regular part of the marriage contract, which is already printed in the marriage baak, buku nikah, which the spouses are given when registering their marriage. The husband declares in written farm: If I leave my wife for an uninterrupted period of langer than 6 months, or if I do not support my wife for a period langer than 3 months, or if I treat my wife "indiffèrently" for a period longer than 6 months, then my wife is free to file her request for divorce at the Religious Court. Under the condition that she pays the divorce-fee (uang 'wadl), my thalak falls automatically. Divorce is easy and frequent in Minangkabau, and bath men and wamen remarry qUIC. kl y. 38
4. Relationships Established ThT'ough Marriage Through marriage, relationships come into existence between the spouses and the spouses' households. Formalized and socially defined relationships are further established between each spouse and his or her spouse's kaum/buah gadang. Affinal relationships are partly expressed through individualizing reference. Husband and wife speak of each other as laki, male, and padusi or bini, female. In contemporary Minangkabau, the Indonesian (-Indian) terms suami, husband, and isteri, wife, are als 0 frequently used. On the O-generation level, the in-laws of both sexes are designated as ipa. Children refer to their parents-in-law as mintuo, and parents.to

IN SOCIAL CONTlNUI1Y

their children-in-Iaw as menantu. Co-spouse kin types are labelled pambayan. Pambayan is used between wives of a man or the wives of a male sibling, and between the husbands of female siblings (cf. De Josselin de Jong 1951: 45 ff.; Umar Junus 1964; Thomas 1977). Besides, there are terms by which ego as a group member designates all husbands and wives which are married to members of his group. The term urang sumando is given to husbands of the women of one's own group. The term is used by male and female speakers, except that women do not ordinarily refer to their husbands as urang sumando. The group in this respect is the kaum or buah gadang. The term urang sumandO is used to denote the single in-married husband as weIl as the sum of all husbands. It is not used to designate the urang sumando's kaum. In fact, there is no special term by which the urang sumando's jurai, kaum, or buah gadang could be referred t~. The only way to do 50 is to speak of "the kaum of X (of our urang sumando)", or, if the couple has children, of the "bako of our children/kamanakan". 39 The term pasumandan is used to denote the wives of one's male lineage members. In CKL, little use was made of this term. In how far pasumandan is and was also used to designate the wife's kaum or buah gadang in other parts of Minangkabau, is not clear from the literature. 40 In contemporary Minangkabau, the people do not have a "conceptualization of the groups linked by marriage as a triad: ego's group, its bride givers, and bride receivers" (De Josselin de Jong 1975: 19); and it is improbable that they ever had. Marriage does not establish socially defined relationships between the constituent social groups, but only temporary inter-household relationships and relationships between the individual spouse and his or her spouse's socio-political unit (kaum or buah gadang).

E. RESIDENCE

I. INTRODUCTORY NarE

Under the heading of residence I include the complex of legal conceptions which localize a person's or group's activities in terms of predefined alternatives, duties, and rights (see K. and F. von Benda-Beckmann 1978).41 In Minangkabau adat, no distinct residence-rlile category exists, but the rul es drawn together here are part of the various fields

IN MINANGKABAU 107

of relations which have already been discussed.

The residence rules in Minangkabau, the post-marital residence for men in particular, have suffered various and divergent interpretations. The Minangkabau have been cited as one of the few societies where nuclear family arrangements are absent due to residence rules: The husband stays a member of his localized matrilineage and only visits his wife at.night. The residence rules have therefore been labelled natoIo- cal or duolocal (see De Josselin de Jong 1951: 11; Gough 1961: 548; Fox 1967: 101 f.). Other authors have discerned a change in Minangkabau residence: due to the impact of economic conditions, the residence rules were said to have become uxorilocal (De Josselin de Jong 1951: 117; Umar Junus 1971: 223; Sjafnir at al. 1973: 18 H.) or even patrilocal or neolocal (Maretin 1961: 158). The idea of original duolocality, which mainly has been stated by reinterpreters of ethnographic records and not always by the reporters themselves, has been rejected by Kom (1941) and Fischer (1964), who claim that also in traditional Minangkabau social organization post-marital residence for men was uxorilocal (similarly Tanner 1971: 18, 39 f.). Thomas has recently reviewed the literature on residence in Minangkabau and shares Korn's, Fischer's and Tanner's conclusions (1977: 50 ff., 59). His field data, collected in 1974, unequivocally indicate post-marital uxorimatrilocal residence for men (1977: 50 ff.). These discussions of Minangkabau residence are usually concerned only with post-marital eating and sleeping arrangements. However, if the category of residence, as I understand it, is to have any value for the analysis of Minangkabau social organization, we must differentiate further. Residence rules inter alia determine where people may exercise their rights as community members and where and by whom they may be asked to make contributions, in the form of money or labour, in the communal interest; they lay down with whom one shares collective responsibility in certain cases, with whom one shares a prayer house and mosque, and to wham one must bring one's disputes. At least three different aspects of residence must be distinguished:

1. "Domestic" residence: the localization of domestic activities like eating, sleeping, the education of young children.
2. "PoliticaI" residence: the localization of a person's political rights and duties as a community member.
3. "Economic" residence: the localization of a person's labour and other economic activities.

PROPERTI IN SOCIAL CONTINUITI

Only these three aspects together allow a satisfactory analysis of Minangkabau residence. In what follows, I shall be mainly concerned with domestic and political residence, as economic residence is to a large extent dependent on this system of property relationships, which shall be described in detail later. Just a short comment may be made here in order to give the reader a general impression. As far as agricultural work is concerned, it is the norrnative and statistical rule that persons work the land which they have the right to use and exploit; in addition, they willoften work on others' land in the context of neighbourhood-or kinship-based working arrangements. Women hold most of the rights to rice-Iand, and men therefore work as rice cultivators mainly on land which belongs (in the sense mentioned above) to women. In former times, men spent most of their labour on the fields of their female members of their jurai or kaum, nowadays men prefer to work on the fields of their wives. Areas used for cash crops and perennials are mainly held by men, who do most of the necessary work and are only occasionally helped by women.

11. DOMESTIC RESIDENCE Domestic residence changes during the life-cycle of individuals, and is different for men and women. For children, the domestic residence is their mother's house. During the day-time, they play, help their mother and aunts, and, when old enough, accompany their parents or their mamak to the fields. At night, they sleep with their parents in the parents' sleeping-room (bilik) in their mother's house, be it a family long house (rumah gadang) or a smaller house. When the boys reach puberty, they may not sleep in their mothers'/sisters' house any more. They move to a surau, the bachelors' dormitory which is also used as prayer house and for religious and adat education. The surau can be held by a buah gadang or kaum rut mayalso be common property of a buek. Children are also frequent and welcome guests in the house of their father's mother, "in the house of the b a k0"*•*42 Af ter marriage, the husband sleeps in the house of his wife. Polygynists are supposed to make some arrangement by which they share their time fairly between their wives, and most polygynists we knew had developed a fixed schedule. In principle, the young ceuple lives in the

IN MlNANGKABAU 109

house of the wife's mother. If this is a family house, the couple will be given one sleeping-room (biZik). In former times, new rooms were added to the family house when the house became too crowded, i.e. when there were more married females than there were rooms. If no rooms could be added, another house, either a new family house or a smaller annex, would be built adjacent to the old rumah gadang. If the housing area did not permit the construction of a new house, or if a jurai wished to move to another part of the nagari, new houses could be built there, if the wife's jurai possessed inherited property (harato pusako) there. In contemporary CKL, rumah gadang are still in use, but are generally used by a jurai comprising one grandmother, mothers and children only. Most people live in smaller houses, which are constructed according to the same plan as the rumah gadang, but which can accomodate fewer persons. The report of the WaZi Ne ge ri of CKL made in 1971 lists 330 rumah gadang, 626 houses (gedung, houses with a verandah intended as permanent residence) and 419 "primitive houses" (rumah bungkus nasi, which do not have a verandah and are aften rebuilt or torn down aft er a short while). In the last resort, domestic residence is thus determined by reference to property. The residence of the married couple may not always be in the wife's mother's house, but it will always be on the wife's (kaum's) property. The house, no matter who financed its cons truct ion, is on the wife's pusako land, and it is a part of the wife's pusako (as als 0 in Gurun, see Thomas 1977). As residence is determined by reference to the property on which the house stands, "nealocal" residence is nearly impossible in the nagari. For all land is already someone's property, and the houses are built on the wife's property. Exceptions to this rule are extremely rare. In the part (jorong) of CKL in which we lived and which comprised about a hundred houses and more than 1000 inhabitants, no husband did not live in his wife's house! One wife lived with her husband in a different part of the nagari, but villagers stressed that this was only a temporary measure until the wife's house had been reconstructed. During our stay, this was done, and the husband moved in afterwards, indeed. Cases in which husbands try to live with their wife and children on their own jurai's property occasionally occur, and in- evi tably lead to trouble. Usual Jy the wife and children have to leave af ter their husband'sjfather's death. In CKL, there had been one case of neolocali ty. The foJJndej of the famous Islamic school of Candung had managed to exchange some of his buah gadang's property against a house- site which belonged to a different suku, on which he then built a house

IN SOCIAL CONTlNUITI

for himself and his wives. His sons, however, though they belonged to the most prominent religious functionaries of the nagari, all lived in the houses of their wives. An adult man does not sleep in the houses of his mother. Exceptions are made if the man is old or when it is too troublesome for him to return ''home'' or to the surau af ter a long night of discussion or ceremony. However, men may neither sleep in nor even enterthe sleeping quarters in the mother's or sister's house. If they spend the night, a mat.will be placed near the staircase in the open front room, or they may be allowed to sleep in the kitchen. Divorced men, unless they remarry quickly, have to move to a surau. Old men are sometimes allowed to sleep in their jurai's family house permanently, and it is customary that dying lineage members are cared for there during their last illness (cf. Kom 1941).

This account of domestic residence in contemporary CKL, and of post-marital domestic residence of men in particular, does not differ significantly from the descriptions given in earlier writings on Minangkabau. In my view, there is little reason to speak of a "visiting marriage", and I would consider post-marital domestic residence of men uxorilocal. Taking into account, that most daytime activities are outdoors, men will during the daytime be where they have property to work, and for the rest of the time they are free to choose their locality: the coffee-house, the surau, the house of their bako, their mother's and their wife's house. Under these circumstances, emphasis must be put on the activities af ter dark, and af ter dark men lived and live in the houses of their wives, unless they visit their mother's house to discuss or instruct their kamanakan in family matters, or to participate in ceremonies. But they are also present in the houses of their wives, when family matters are discussed there. As urang sumando they participate in the decision making processes which affect their wives'childrens' property and in the ceremonies accompanying their rites de passage (see Kom 1941).

111. POLITlCAL RESIDENCE Little attention has been given to political residence in Minangkabau, yet a knowledge of political residence rules is indispensabIe for a proper assessment of residence in general. The place of political resi-

IN MlNANGKABAU 111

dence is where a person's buah gadang is resident. This holds true for persons of both sexes during all stages of their life cycle. In terms of short formulas, political residence is matrilocal. In CKL, there was no exception to this rule. The rule refers to all three basic principles of socio-political organization: adat, buek, and pusako. However, the rules are more complex than the 'matrilocality" label suggests, and must be described in detail.

1. Residence in Adat A person's source of political rights and duties in adat is his buah gadang membership, and it is localized where his buah gadang is localized. But buah gadang localization is not a matter of actual staying or living on buah gadang property, it is determined by the original political constitution of the nagari. The latter contains the localization of the 12 hindu adat, according to which 4 hindu are localized in each koto. In the process of expansion of the nagari population, several complete buah gadang have moved to different koto in different parts of the nagari, and new buah gadang may have split off in these new localities. Yet in adat, their political residence remains their old koto, or the koto to which their mother-buah gadang belonged through hindu affilia- tion, even if they have been living and been resident in buek terms (see below) in the new locality for generations. Political residence in terms of adat Candung and adat Kota Lawas functions in the same way. For instanee, buah gadang from suku Sikumbang, which have been resident in Kota Lawas territory for generations, still have to adhere to the adat Candung. Political residence in adat is thus localized where the buah gadang/hindu adat was localized in the original nagari constitution, and may be quite different from the place where a person's buah gadang is now located, and where its members spend most of their time.
2. Residence in Buek Residence in buek is similar to residence in adat, in that one's residence is where one's buah gadang is resident. However, in contrast to adat residence, official changes can be made in bue.k residence. Moving into a new buek requires a formal ceremony by which the new buek members are accepted by the urang sabuek (we attended one such ceremony in CKL). Individuals cannot move, only jurai, and these must, of course, have some property on which to live in the new buek. Men thus acquire buek

PROPERTY IN SOCIAL CONfINUITY

membership only in their role of mother's brotherjmother's son -as a member of a jurai but not as husband or father. Husbands who have married into another buek, and who spend most of their domestic time at their wife's place, have therefore no political rights there in community and neighbourhood affairs. 43

3. Residence in Pusako The place of pusako residence is where the buah gadang and its property are actually located. Rights in pusako matters are exercised in the (one of the) rumah gadang on the buah gadang's harato pusako-Iand.
4. Residence in Jorong Residence in jorong is generally based upon the adat rules concerning domestic and political residence. Thus when the nagari government con- ducted a census, the men were registered as ''household heads" at their wife's place, uxorilocally. However, in political matters concerning the national local government system (election of the Wali Negeri and of the members of the elective village parliament etc.) residence was based upon the principles outlined above for residence in adat. IV. CONCLUSION If all aspects of residence are considered together, we may conclude that residence for married Minangkabau men is duolocal: domestic post-marital residence was and still is uxorilocal, political residence was and is matrilocal. I should like to emphasize, however, that this statement about duolocality does not express the same views as those held by previous writers who overemphasized domestic residence and took little, if any, account of political residence. The changes mentioned by obser- vers generally refer to the economic residence of men, which has seen a shift in the daytime activities of men, who tend to live and work with their wives and children. As they live and work mainly on the property of their wives, such residence can hardly be called neolocal or patrilocal; on the contrary,the increasing trend to form stronger nuclear families has strengthened uxorilocal post-marital domestic residence (cf. Tanner 1971: 39 f.).

THE PLURALISTIC SITUATION

Three bodies of objectified meaning exist in Minangkabau which contain conceptions pertaining to property relationships and their diachronie transfers, and which are conceived as distinct systems. These are adat/ adat law, Islamie law, and wri tten law. This "existence" can be tied to three basic points of reference:

1. The national legal system of the Republic of Indonesia -formerlyof the colonial system -which recognizes the three bodies as distinct systems of law and which contains rules about the applicability of the sys tems •
2. The actual use which is made of these systems in the social processes which deal with property relationships and diachronie transfers.
3. The "general knowIedge" which the Minangkabau have of these systems. Before these three points of reference are dealt with, a short description of the systems shall be given.
   A. THE SYSTEMS
   

   I. ADAT/ADAT LAW

1. Adat Adat is the symbolic universe by which the peoples of the Indonesian archipelago have constructed their wor ld. To employ the words of an Indonesian adat-Iaw scholar: '~dat is the whole body of teaching and their observanee which governs the way of life of the Indonesian people and which has emerged from the people's conception of man and world" (Koesnoe 1971: 3). Adat refers to all domains of social life, and it also

PROPER1Y IN SOCIAL CONfINUI1Y

covers the realm of the sacred and supernatural. Although the sacred world has been superseded in most Indonesian societies by one of the established religions -Buddhism, Hinduisrn,Islam, Christianity -in most societies adat still contains eIernents of the sacred, magical, and mysti~ cal sphere (Koesnoe 1971: 7, 15; Surjono Wignjodipuro 1973: 24). In those societies which have not yet, or but recently, been converted to one of the official religions, adat still covers both the supernatural and secular social reality. The etyrnology of the word "adat" is evident to most scholars : Adat comes from the Arabic and has been incorporated into most languages spoken in the archipelago (Koesnoe 1971: 3; Van Dijk 1971: 5 f.; Van Vollenhoven 1918: 7). In Arabic, adat means "custom"; in Indonesia, however, adat does not rnean custom but has the meaning indicated above (for "custom" usually kebiasaan, Dutch: gewoonte, is used). There is, however, another etymological interpretation which should not go unno- ticed, as it is rnuch more in accordance with the meaning the word has in the Indonesian languages. According to R.M. Dt. Rajo Panghulu, the leading contemporary Minangkabau adat expert, the word adat which is used in Indonesia, is a Sanskrit word, and its existence in Indonesia thus antedates the coming of Islam and of the Arabic language. The word is cornposed of 'h" meaning ''not'' and "dato" meaning the ''rnaterial'' (sifat kebendaan, 1971: 8S and personal communication). Adat or adato thus would mean "the irnrnaterial". In Dt. Rajo Panghulu's opinion, adat in its Sanskrit meaning was the belief system of the Indonesian peoples pertaining to the secular and the sacred, which only later was restricted to the secular as a consequence of the intrusion of the established religions (1971: 86 f.).l Adat in Minangkabau is ernbodied in an innurnerable nurnber of proverbs and sayings which have poetic and rhythrnic character. 2 There are several different kinds of "sayings", and adat-experts still distinguish the mamang and pitua adat (proverbs), the kato adat (the adat rules) and the papatah petitih adat (the adat maxirns).3 Most sayings contain a reference to the workings of Nature from which the relevant rule fOT hurnan behaviour is derived according to the basic maxim: "Alam takambang manjadi guru"-"The growing nature is the teacher" (see LH. Dt. Rajo Panghulu 1973: SJ. To give one example (see Nasroen 1957: 52) the adat saying concerning the process of decision rnaking runs:

PLURALISTIC SITUATION 115

"Bulek aie dek pambuluah Bulek kato dek mupakat Aie batitisan batuang Bana batitisan urang."

"The water gets rOlmd in the bamboo-pipe The words (decision) get round through the mupakat (the unanirnous decision) The water is led through the bamboo Truth is revealed (bridged) by man."

Within adat, some complexes of rules are distinguished fram the rest of adat sayings and traditions: The two standards, cupak nan duo, the four laws, undang nan ampek, and the four kinds of adat rul es, kato nan ampek. The actual classification given by Minangkabau experts varies a little, but it mostly comes down to the following (taken from Dt. Sidi Bandaro 1965: 12, sirnilar I.H. Dt. Rajo Panghulu 1973: 114 ff.; R.M. Dt. Rajo Panghulu 1971: 100 ff.).4

1. Cupak usali-the original standard.(Cupak is a measure of bamboo, but also used to denote standards of behaviour.)
2. Cupak buatan-the standard which has been made (in cases where the original cupak has been changed by decision of the Karapatan Nagari).
*3. Undang2 Nagari-*the laws about the constitution of a nagari (e.g. that a nagari must have four suku etc.).
4. Undang2 dalam nagari-the laws about the nagari-internal life.
5. Undang2 luhak-the laws about the Minangkabau empire and the division of Minangkabau into the three luhak.
6. Undang2 nan 20-the law of 20, which consist of the law of 8, a crude criminal code, and the law of 12, a code of evidence.
7. Kato pusako-the rules which are heritage.
8. Kato mupakat-the rules which have been made by mupakat in the Nagari Council.
9. Kato dahulu-the "olden" rules.
10. Kato k(em)udian-the rules yet to be made. Adat as a whole is generally divided into four kinds of adat (Nasroen 1957: 45; I.H. Dt. Rajo Panghulu 1973: 109; R.M. Dt. Rajo Panghulu 1971: 87):
1. adat nan sabana adat-the adat which is truly adat.
2. adat nan taadat-the adat which has developed into adat.

PROPERTY IN SOCIAL CONfINUITY

3. adat nan diadatko:n the adat which has been made into adat.
4. adat istiadat-the general (ceremonial) adat. Although different contents are attributed to these four categories, the same four or five core-rneanings reappear, which distinguish adat according to its sources:
1. the adat which .consists of the laws of nature (adat nan sabo:na adat).
2. the adat which is the old, pure adat, gi ven by Dt. Katurnanggungan and Dt. Perpatih nan Sabatang. This is either adat nan taadat or adat nan diadatkan for the various authors. Under this kind of adat, the cupak nan duo, the undang nan ampek and the kato nan ampek usually are subsurned.
3. the adat which has been made by a decision of the Nagari Adat Council, gene rally labelled adat nan diadatkan.
4. the general custorns, mostly adat nan taadat or adat istiadat. Several authors have incorporated another distinction of adat into this quadrupartition: the distinction between adat jahiliah, the adat which is contrary to Islam, and the adat islamiah, the adat which is in accordance with Islam (cf. Taufik Abdullah 1966: 15): The adat nan sa- bana adat is conceived of by several authors as the Law of God, whereas the adat istiadat is conceived of as the adat contrary to Islam. 5 Adat is further specified by reference to a particular field of 50- cial relations. Thus one spe aks of the adat kawin, the adat of marriage, or the adat pusako, the adat of heritage. It is also used to indicate a standard of evaluation, both in terms of permissibility and of validity: menurut adat-in accordance to adat, salah menurut adat-wrong according to adat; and: syah menurut adat-valid according to adat, tidak syah or batal menurut adat-not valid, void according to adat. As has already been mentioned, adat can also be used in a more restricted way, signifying a particular field of social relations in contradistinction to others, e.g. pusako or buek.
2. Adat and Adat Law Adat restricts the constituents' autonorny in various ways and to different degrees. Some adat sayings and rules are quite explicit in their prescriptive character and leave little room for interpretation and discretion by the decision makers. However, most sayings are vaguely

PLURALISTIC SITUATION 117

phrased, of ten in an allusive way and have to be interpreted in an actual context: they leave room for the exercise of the constituents' autonomy in the interpretation of the rather general notions embedded in the adat sayings. This kind of autonomy is firmly embodied in the adat doctrine of decision making through the process of common deliberation, the musyawarah, which has already been described in the discussion of the Minangkabau notions of authority. The adat rules restricting the autonomy in these processes are more what we would call procedural in character. The decision must be found in a proper process, and certain procedural criteria must be adhered to. If this is done the decision makers are not restricted by substantive criteria. Adat is amenable to change (see below Chapter 6: 314 ff.), and the principle of a common decision upholding the harmony between the contending parties and the social relations in the nagari in general is higher valued than the idea of an application of rules to a set of facts. 6 According to the concept ion of law which I have outlined in the first chapter, there is much general and concrete law in Minangkabau adat. It should be noted, however, that my concept ion does not fully correspond wi th the concept of "adat law", Dutch: adatrecht, Ind.: hukum adat. The concept adatrecht had first been created by Snouck Hurgronje, who denoted with it "those adats which have legal consequences" (1893: 357). The concept was subsequently taken up by Van Vollenhoven, and through his usage the concept received its publicity. In Van Vollenhoven's definition, adatrecht meant "the sum of the behavioural rules in force for the natives and foreign orientals, which have sanctions (therefore: law) and which are not codified (therefore: adat) (1918: 14).7 The discussion about what adatrecht is, or rather, what it should mean, has since then been carried on through the subsequent generations of Dutch and Indonesian adat law scholars. The most prominent conception became the so-called decision-theory (besZissingenZeer) of Ter Haar (1930, 1934 a, 1937, 1941) which has already been discussed in the first chapter. In the meantime, Indonesianscholars have developed their own conceptions which are usually variations of Van Vollenhoven's and Ter Haar's definitions. 8 In contemporary Minangkabau, the not ion of adat law, hukum adat, is known, but its use and its interpretations differ. Most persons who have received a formal legal education, such as judges, lecturers at the universities, and higher administrative officials, use the concept, 'and by

PROPERTI IN SOCIAL CONrINUITI

their use they contrast adat law from adat. The judges, in particular, have insisted on a distinction between adat and adat law, and emphasized that they applied adat law. In their opinion, expertness in adat law is firmly connected with a formal legal training, and the Minangkabau adat experts, panghulu who have written books on Minangkabau adat, are experts 'in adat only. Their not ion of what constitutes that difference, however, was very vague. It mostly referred to Van Vollenhoven's or Ter Haar's definitions of adatrecht: Law was what was applied in their courts. However, in the rationalizations and legitimations of the courts' judgements, we could detect no difference between adat and adat law. Both terms were used indiscriminately, and the problem of the eventual distinction was never explicitly dealt with. 9 Minangkabau villagers generally do not speak of adat law, but of adat. The term adat law, hukum adat, is known, but is, quite correctly, considered a Dutch invention. 10 If the term hukum adat is used, no distinction is made from adat. But in general, no matter which field of social relations they discuss (thus also in the processes of conflict resolution)only adat is employed. The word hukum is used, but not in the sense of "law", but rather in the sense of "judgement, verdict". Hukum is mainly used in its verba 1 form menghukum, mahukum, to judge, to convict. If adat is specified or differentiated at all in the nagari, people refer to the classifications which I have mentioned. The quadrupartition of adat, though it forms part of the standard repertoire out of which first information is offered to the foreigner, is hardly ever used in the processes of decision making. It is rather the cupak, undang2, and kato which are referred to. But most people are quite aware of the somewhat obsolete character of these subdivisions in adat, as particularly the fields of penal sanctions and of constitutional law have been superseded by colonial government regulations and national law. What I would consider law in adat (but also what others consider to be adat law) is not conceptually distinguished from.adat in general by Minangkabau villagers.

Ir. ISLAMIC LAW

Islamic law, shari'at,Ind. and Min.: sarak, syarak, or syarat, is intimately connected with the Islamic religion. It is religious law and regarded as "canon law" by most scholars of Islamic law (see Fyzee 1955:

15). Syarak literally means "the road to the watering place, the path

PLURALISTIC SITUATION 119

to be followed". It consists of the totali ty of Allah' s connnandments, each of which is called Qukm (Ind.: hukum). Basically, syarak is a doctrine of duties which extends to all fields of human behaviour, the sacred and the profane worlds (Fyzee 1955: 15). The religious injunctions of the syarak are classified into five different standards of evaluation (see Juynboll 1903: 5 f.; Fyzee 1955: 15):

1. those actions which are strictly forbidden (~äm)
2. those from which one is advised to abstain (makrUh)
3. those where syarak is indifferent (ja'iz)
4. those which are advised and looked upon positively (mandüb)
5. those which are strictly enjoined or prescribed (fard) In terms of the conception of law which I have outlined in the first chapter, only the injunctions of nos. 1 and 5 could be regarded as general law, as only they explicitly limit the individuals' autonomy in a definite manner. 11 But besides or rather within the syarak, there is the body of the fiqh. The fiqh is defined as "the knowledge of one's rights and obligations derived from the four sources of law" (Fyzee 1955: 17). Fiqh means "intelligence", but under its name the whole Islamic science of jurisprudence has become known. It is generally regarded as the "proper law" or "law in a more narrow sense" by students of Islamic law, and it contains what I call standards of permissibility and validity and the pertinent legal consequences. The "four sources" or "roots" ('Um UI~i1l) of law are the Koran, the traditions and practices of the prophet (hadtth and sunna), the principle of analogical deduction (qiyas), and'the consensus of the learned (ijma,).12 Islamic law is the product of a long development process. Islamic scholars divide this process into four main periods, in the third of which, counted from the year 40 until the third century af ter the hidjrah (622 A.C.), the four important schools of Sunnite jurisprudence were formed. 13 In the Indonesian archipelago, most Mohammedans follow the school of Imäm Shäfi'ï (150/767 -204/820). The Shafi'ites mainly recur to the works of Imam Shäfi'l and to the two standard works in which the fiqh has been elaborated: the Tu~fah of Ibn ~adjar (died 959/
1551) and the Nihayah by ar-Ramlî (died 973/1565) (Juynboll 1903: 38). Another important source of Islamic law have become the collections of fatwa. Fatwa are explanations of the law in a concrete case, which have been given by a recognized legal expert (Juynboll 1903: 40).

IN SOCIAL CONTINUI1Y

lIl. WRITIEN LAW

Written law (hukwn tertuZis) is the sum of the futch law which has been received as law in the Colony of the Dutch East Indies, of the laws promulgated for the Colony in Holland, and of the laws made by the colonial and later Indonesian legislative institutions. Dutch law, like most western legal systems, is a mixture of the late Roman law and the Germanic tribal laws .14 Most law was codified in the beg inning of the 19th century. The futch codes were closely modelled on the French codes which were enacted lIDder the reign of N3jXlleon I. In Dutch legal theory, law is in principle codified, and is applied to concrete sets of facts by the subsumption of the facts lIDder the law. Dutch court decisions do not play the important role they play in Common Law coun- tries, and there is no doctrine that the law is embodied in cases. But court decisions as weIl as the books written by learned jurists serve as important sources upon which judges draw in the rationalization and legitimation of their judgements. This system was also introduced into the Colony. Legislation-techniques in the Colony also followed the futch system, aiming at a complete solution of the problems to be covered in the form of codification of detailed rules, and leaving the judges little room for the exercise of discretion in the application of the law. Early in this century, Colonial law (Indisch Recht) gained in importance when a separate study of it was established at the University of Leiden. In the 1920'5 a University for Law was established in the Colony's capital, Batavia (now Jakarta).

B. 1HE "EXISTENCE" OF 1HE LEGAL SYSTFMS IN MINANGKABAU

I. 1HE COLONIAL AND NATIONAL LEGAL SYSTEM

The officialIegal system of the Republic of Indonesia, and formerly the legal system of the Colony of the Dutch East Indies,contains rules about the applicability of the different subsystems and establishes, or recognizes, the administrative institutions which have to apply these subsystems to concrete cases. Most Indonesian societies had already known some sort of legal pluralism af ter the acceptance of the Islamic religion, but with the futch colonialization, the legal pluralism gained in importance. The inhabitants we re partly subjected to a new set of

PLURALISTIC SITUATION 121

legal rules, and they were also subjected to an administration of justice which was carried out by the new rulers, who were not content to have their own law applied to themselves but also usurped the application of the inhabitants' law. Legal pluralism thus did not just affect domains of social life such as marriage, inheritance, or property. The constitutional systems, and particularly the field of the exercise of socio-political authority were affected to a much greater extent. In the following section, I shall briefly sketch the development of this dual legal pluralism in Minangkabau.

1. Pre-Independence DeveZopment The Dutch had first come to the west coast of Sumatra in 1600. Then in the first half of the 17th century they had managed to establish some trading posts at major coastal sites. Between 1647 and 1660 they ousted the Achenese merchant governors who had brought the coastal area under their control, probably as a consequence of the weakening of the Minangkabau empire. In the coastal area, in particular in the largest place, Padang, the Dutch introduced some kind of administration, but until the English interregnum (1795-1819), no European had ever set foot into the three Zuhak from the west coast. Raffles, who governed the west coast during the English interregnum for the English East India Company, was the first European to make the journey into Tanah Datar in 1818, where he established a small military post at Simawang. When the west coast had been returned to the Dutch in 1819, they were approached by some adat-leaders from Tanah Datar for help against the Padri, and this served as pretext for the introduction of colonial rule in the Padang Highlands. In 1821, the Dutch pesident of Padang made a treaty with these adat-leaders in which "the regions of Pagarruyung, Saruaso, and Sungei Tarab" (all situated in Tanah Datar) as well as "the other regions of the Minangkabau empire" were handed over to the Government of the Dutch East Indies (Westenenk 1918b: 678; Kielstra 1887b: 27 with the full text of the treaty, cf. Dobbin 1977). It is in this treaty that the first regulation concerning the applicability of the laws was made. In fact, legal pluralism was not yet to be introduced. Art. 5 of the treaty said: "The time-honoured customs and traditions of the land and the relationships between the Native Heads and their subordinates shall be completely safeguarded. In no case shall they be violated, insofar as they are not contrary to the regulations stipulated above" (Kielstra 1887b: 28. The regulations referred to concerned the military presence of the

PROPER1Y IN SOCIAL CONfINUI1Y

Dutch in the Highlands and the obligation of the Minangkabau to provide the futch with coolies) • The war against the Padri, which was only ended in 1837, prevented the Dutch from a fast establishment of a proper administration. But for the areas under futch control, a preliminary administrative system was erected in 1823. 15 Following the pat tem also used on Java, the Minangkabau region was divided into 2 hoofdafdelingen and 4 regentschappen. The regents~happen were subdivided into districts. These districts were cal led laras and were based upon actual,or what were erroneously assumed to be,nagari-federations. They were placed under the control of a Minangkabau administrative official, the Tuangku Laras (Lareh). The nagari were placed under a village-mayor, Kepala Nagari. These officials were paid by the Dutch administration. In the first phase they were appointed by the Dutch administrative officials, later elected by the population. In 1864 election became obligatory (Westenenk 1918b: 830, 832). In 1825, the firs~ court (landraad) in the Padang Highlands was established at Fort van der Capellen (Batu Sangkar) (Westenenk 1918b: 680 ff.). In 1833, it was decreed (by Missieve 9.1.1833) that courts (landraden) were to be constituted in all major centers of Minangkabau, and "that the law should be applied in accordance with the existing customs in each district". The jurisdiction of these first colonial courts was restricted. All disputes between natives were in principle to be decided by the nagari- government. Only appeal to the futch courts was allowed (Westenenk 1918b:

686). This state of things was solemnly confirmed by the Govemor of the West Coast in the so-called plakaat panjang, "the long declaration", of 25 .10 • 1833: "The Government shall refrain from all interference into the domestic affairs of the natives, and all problems conceming debts, torts, marriage, divorce, and inheritance must be decided by the adat-functionaries according to adat". (Kroes en 1873: 95 ff. with the full text of the plakaat panjang; Kielstra 1889: 332; Westenenk 1918b: 688). The promises of the plakaat panjang were quickly forgotten. In 1837 the futch had taken Bonjol, the last stronghold of the Padri-forces. The court structure was renewed, but without any significant changes. But already in 1825, the futch had begun levying a market tax (Kielstra 1887b: 125), and in 1847 the cultuur-stelsel, the system of forced cultivation of cash crops, in Minangkabau mainly coffee, was introduced (cLKahn 1976: 81), the latter made compulsory in 1862. The villagers were forced to plant a number of coffee trees and sell the products to

SITUATION 123

the storehouses run by the Duteh. The Tuangku Lareh, village mayors, and the panghulu officially recognized by the Dutch (the panghulu rodi) were responsible for the implementation of this policy. In 1875, the West Coast received a new judicial structure which brought some fundamental changes (see der Kinderen 1875). The Reglement op het Reahtswezen van Sumatra's Westkust (coming into force on 1.11.

1875) completely abolished the jurisdiction of the village government, and the penal law was made subject to a (Duteh) Penal Code. The West Coast now had the typical dual court structure with different chains of courts for Europeans and Natives. 16 Only the lowest court for the natives, the distriktsgereaht or Rapat Tuangku Laras, was staffed with natives. It was presided over by the Tuangku Laras, with some of the nagari panghulu as assessors. These courts were to apply adat law but had to follow Dutch procedural law. Appeal lay in the Inlandsahe Reahtbank (later to be styled landraad) which was presided over by a Dutch administrative official with at least two Tuangku Laras as his assessors. 17 The application of adat through adat officials, which had been abolished in 1875, flourished also without official recognition. The Karapatan Adat continued to exercise their jurisdiction according to adat. The official courts condoned this. Guyt, himself a judge in the Landraden, states that the governmental courts highly valued the decisions of the panghulu (1934: 133). In the 1930'5, it had even become regular court practice that intra-lineage (kaum) disputes were not accepted by the courts unless the parties had obtained a decision of the Karapatan Adat Nagari beforehand (Guyt 1934: 134 and the judgements published in T 133: 264, T 135: 299, T 138: 471). In 1935, some kind of 'yillage justice" was officially resuscitated by the colonial government. 18 An ordinanee amending the Reahtsreglement voor de Buitengewesten, R.B.G., was enacted, in which it was stated that: "Legal actions, of which the judges of smaller communities should take cognizance according to adat law, are subj eet to such cognizance" .19 The newly recognized adat ins ti tut i ons were given the status of a media- ting body (hakim perdamaian). The natives were not prevented from bringing their suits before the Dutch courts. However, the distriktsgereahten had to inform themselves as to whether the "village judge" had already given a ruling in the case, and if 50, were obliged to take cognizance of this ruling. They were also entitled to remit the case to the village judge and could regard the suit as lapsed (vervallen) if the plaintiff

PROPERIT IN SOCIAL CONTlNUIIT

refused to do 50. Islamic institutions of dispute-settlement were not recognized as judicial institutions in West Sumatra. 20 However, in those nagari where such institutions had been established during the Padri-war and, as in CKL, had been more or less integratedcinto the adat system, they continued to exercise jurisdiction, particularly in marriage affairs, also without official recognition (see AB 39: 212 ff.).

The law which was to be applied in this dual court system had been systematized for the whole colony in 1848. The basic principle was th at different law was to be applied to the different population groups. These groups were mainly based upon racial origin. At first, two groups were recognized, Europeans and Natives, but the RegeringsregZement (R.R.) of 1854, the constitution of the colony, recognized three population groups: Europeans and persons treated like Europeans (mainly Christians), Natives, and Foreign Orientals. 21 These provisions remained unchanged until 1920, when the R.R. was amended, and then to 1925, when the Indische StaatsregeZing (l.S.), the new constitution, was enacted. Art. 163 l.S. defined who belonged to which population group, and art. 131 regulated which law was to be applied to which population group.22 According to art. 131 (6) l.S., all private law in force for the native population on 1.1.1920 continued to be in force. This meant, that according to art. 75 R.R. the law which was applicable to the natives consisted of their unwritten adat law and those European regulations which had been made applicable to the native group by decree of the Governor General. The application of adat law was restricted by the rule that it was not to be applied when it offended the (western) principles of equity and justice (see Gautama and Hornick 1972: 10, Hooker 1975: 278). Before 1920, only very little Dutch law had been made applicable to the native group.23 The members of the native category had also some opportunities to become subject to European law, but these were infrequently used by the Indonesians. The fields of property and inheritance law were excluded from these possibilities in any case. 24

The adat law of property and inheritance thus was in principle untouched by these provisions. However, several laws and regulations had been enacted which had some impact on property relationships and land law in particular: The DomeinverkZaring for Sumatra (S. 1874: 94 f.) by which all 'waste land" was declared to be the domain (domein) of the

PLURALISTIC SITUATION 125

State, and the "Prohibition on Land Alienation"(Verbod van vervreemding van erfelijk individueel gebruiksrecht of 1875) which prohibited sales of ''native land" to non-natives (Gautama and Hornick 1972: 75 ff., 83). These laws will be discussed later in Chapter 4.

2. Post-lndependence Development Since the independence of the Colony of the Dutch East Indies in 1945/ 49, the pluralistic situation has not basically changed. The regulations of arts. 163 and 131 l.S. are generally held to continue to be in force;5 and they are still applied in contemporary Minangkabau State Courts. 26 Some laws have been enacted by the Indonesian legislature which have important consequences for the fields of property relationships: The Basic Agrarian Law of 1960 and the Marriage Law of 1974. They will be discussed in the next chapter. The dual court was abolished during the Japanese interregnum, and af ter Independence this unitary court system was retained. The ordinary jurisdiction was conferred upon the pengadilan Negeri (PN) as courts of first instance, the Pengadilan Tinggi (PT) as courts of appeal, and the Mahkamah Agung (MA), the Supreme Court, as court of revision. 27 The village justice in its officially recognized form survived the Japanese interregnum and the Dutch military actions. In post-Independence Indonesia, it is generally held that the regulations introduced in 1935 are still valid and that the village institutions are still permitted to act as hakim perdamaian. In West Sumatra, the structure of the administrative bodies which function in village justice has been changed by several regulations. 28 The first systematic reorganization of the local government system in West Sumatra was introduced in 1968 by a decree of the Governor. The nagari government was to consist of a village mayor, Wali Negeri (WN), a nagari council, Kerapatan Negeri (KN), and a village parliament, Dewan Perwakilan Rakyat Negeri (DPRN), the membership to which was elective (SK 015/GSB/1968). The KN was to assist the WN and to function as court of mediation in adat and religious matters. The regulations on the KN were implemented by a decree of 1970 (SK 149/ GSB/1970): The KN consists of three sections, an Adat Section, a Religious Section, and a General Section. For each section, a jury (Dewan Juri) is to be established. The juries shall take decisions 'which are to mediate between the parties and which should be accepted by both parties" (keputusan perdamaian yang disepakati oleh pihak2 yang berper- kam). The members of the Adat Section shall be the members of the

PROPERTI IN SOCIAL CONTINUITI

Karapatan Adat Nagari (KAN), the members of the Religioos Section the members of the Cooncil of Religious Experts (Majelis Ulama Negeri) or those persons who are recognized as religious experts (Alim Ulama).29 In most nagari, the Karapatan Adat Nagari, the adat cooncils according to ada~ constitutional law, exist side by side with the officially established nagari-institutions. The KAN are not officially recognized by Indonesian national or provincial law, but their existence is known and indirectly acknowledged by the provision that the members of the KN shoold be recruited from the KAN. 30 During our stay in Minangkabau, a new local government regulation was introduced (SK 155 and 156/GSB/1974), which abolished the DPRN and restructured the KN, withoot, however, basically changing its jurisdictional powers. Ther~stablishment of a religioos section of the KN has already been mentioned. Post-Independence sawa growing recognition of Islamic institutions. Besides, Religioos Courts were set up in several parts of Sumatra af ter Independence, mainly by and in cooperation with the Ministry of Religioos Affairs. 31 The Ministry has a department (perwakilan) in each province, and Religioos Administrative Offices (Kantor Urusan Agama, KUA) were set up on Kecamatan level. The KUA in many parts of Indonesia assumed jurisdictional powers, until in 1957 Religioos Coorts were officially established ootside Java and Madura (see Lev 1972a: 76): The Government Instruction (PP 45 of 1957) established Religioos Coorts, pengadilan Agama or Mahkamah Syriah, in the places where PN already existed. The Religious Courts' jurisdisction is only vaguely circum- scribed. It comprises disputes between married persons of the Islamic religion as weIl as matters of marriage, divorce, remarriage, and disputes conceming inheritance and gifts, but only "if these subjects are, according to the living law (hukum hidup) to be decided according to Islamic law. If other than Islamic law is in force in these matters, the Religioos Courts may not assume jurisdiction" (art. 2 and 4). The decisions of the Religioos Courts can only be executed af ter they have been reviewed and confirmed by a State Coort (art. 3-5). The administrative structure of the Religious Department reaches down to the nagari level. There is an Officer for the Registration of Marriage, Divorce_, and Remarriage (pembantu Pegawai Pencatat Nikah, Thalak, Rujuk, P3NTR) in each nagari, who is chosen by the village mayor and whose appointment must be confirmed by the KUA. Since 1969, the P3NTR has an advisory commi ttee, the Corops Penasehatan Nikah, Thalak, Rujuk, (.CPNTR),

PLURALISTIC SITUATION 127

the members of which are appointed by the village mayor.

11. THE ACTUAL USE MADE OF THE SYSTEMS The second form of actualization of the three systems in Minangkabau is the actual use made of the systems in property and inheritance affairs. The substantive rules of the systems will be described in the next chapter, and the actualization of the systems in the social processes which are concerned with property and inheritance affairs will be treated in Chapters5 and 6. But in order to convey an impression of the systems' respective importance, first a general overview will be given here.
1. The Legal Systems Used by the Courts
a. The State Courts The State Courts either apply adat law or written law but not Islamic law. That Islamic law is not applied is to be emphasized, as the foreigner is of ten told the contrary in introductory interviews. Most people whom we interviewed still vividly remembered the two conferences which had been held in 1952 and 1968 on the subjects of land and inheritance law. In the resolutions issued by the conferences' participants it had been stated that Islamic law should be applied to the inheritance of self-acquired property (see Prins 1953, Naim (ed.) 1968). The Judges' Organization had participated in the 1968-conference and had agreed with these resolutions. In some of our first interviews with judges and administrative officials we were offered the statement that Islamic law was indeed applied in the State Courts. But our check of the court records of the PN in Bukit Tinggi, Batu Sangkar, and Payakumbuh for the period of 1968 -1974 revealed, that Islamic law was not applied in one single case. Once we had become better acquainted with the judges, they, too, emphatically denied that Islamic law was, or should be, applied in their courts in property or inheritance matters. Most courts explicitly legitimate their judgements by reference to adat or adat law. Written law only enters the judgements in rare instances. The only substantial exception is formed by the bulk of cases in which banks try to recover loans from their debtors. In the period under review, this kind of case constituted about 14% of all contested

PROPERIT IN SOCIAL CONfINUIIT

civil cases (71 of 507). In practically all other cases, adat (law) was applied as the system of substantive law. In disputes about property and commercial transactions in the towns, the courts sometimes recur to single principles of Dutch law like the principle of bona fide acquisition. But the law in these cases also is, for the rest, adat law (for a more detailed overview of the case load see Chapter 5: 307). It must be remembered, however, that the law of procedure and evidence is a modified version of Dutch procedural law. This is of considerable influence on the concretization of adat law in the state courts. 32

b. The Religious Courts In principle, the Religious Courts apply Islamic Law. The actual exercise of their jurisdiction in Minangkabau is reduced to marriage problems. The greatest percentage of their case load (78%, N=1.237) is formed by applications demanding the declaration of validity of a previously unregistered marriage (pengesahan nikah). Propertyor inheritance questions are hardly ever brought before the religious courts. In the 6 years of 1969-1974, for which we examined the case load of the PengadiZan Agama in Bukjt Tinggi, only 8 cases concerning property (or 0.64% of the total case load) came before the court. Of these 8 cases, only two were actually decided: One uncontested case of inheritance and one property dispute between a married coupIe. The other six cases were withdrawn, and in two cases the court did not assume jurisdiction on the grounds that the matter in dispute was subject to adat law and should therefore be heard by a State Court. 33 One of these cases will be reported in Chapter 5: 267 ff.).
2. The Use Made of the Systems in the Nagari-Institutions of Decision Making It is difficult to give an answer for Minangkabau as a whole to the question of the degree to which the three systems are used to legitimate decisions in property and inheritance matters by the nagari's institutions. Although 1 think it probable that the situation in most nagari will be similar to the one in CKL, I shall restrict my statements to nagari CKL. Property matters are in principle dealt with only by the adat lnsti- tutions and the adat section of the Kerapatan Negeri. These institutions use adat to legitimate their decisions. The P3NfR did not handle property problems, and neither did the religious section of the KN; in fact, the

PLURALISTIC SITUATION 129

latter had not decided any case at all and its existence was very much on paper only. Marriage affairs are dealt with by the P3NTR, the KUA, and the Pengadiûzn Agama, but disputes over the division of marital property are handled by the adat institutions. In some cases in CKL, disputes concerning property were also dealt with by the sidang-councils (see Chapter 2: 80). The sidang, however, were regarded as adat institutions in definite contrast to the P3NTR or the religious section of the KN.

3. The Use Made of the Systems Outside the FormaZ Institutions of De- ais ion Making Here again, it is difficult to give a precise and statistically supported statement. As a general rule, adat is used by the population to rationalize and légitimate all kinds of property relationships. One exception, which will be discussed in detail later in this study, is, that the inheritance of a father's self-acquired property by his children is sometimes rationalized as being in accordance with Islamic law. Religious experts are also occasionally approached for advice with respect to the division of self-acquired property of a deceased in accordance with Islamic law. In CKL, such cases seem to have been extremely rare, and no concrete instance was reported to us. lIl. THE ACTUALIZATION OF THE SYSTfMS IN THE KNOWLEDGE OF THE MlNANGK.ABAIJ The third point of reference for the "existence" of the three systems lies in the knowledge of the Minangkabau that these systems exist; a knowledge held by more or less all adult Minangkabau, independently of the degree to which these systems are applied in social processes that deal with property affairs, and independently of the degree to which the Minangkabau have internalized the formal characteristics and the substantive content of the systems. The situation may be compared with that of the common German, who knows that in his society religion, law, ethics, and morals exist as different and distinct systems which contain standards for his behaviour, but who can neither define the distinction between the systems nor claims to have adequate knowledge of their contents. For he knows that in his society this knowledge is the realm of lawyers and theologians, of experts who have undergone a special training. Yet he knows "something" of the systems' substantive rules and has his

IN SOCIAL CONrINUI1Y

own ideas about them. The situation of "the Minangkabau" is quite similar, and it shall briefly be described in what follows.

1. The KnowZedge of Written Law Minangkabau do not know much written law. This law has been made in Holland or in the national or provincial capital, it is laid down in statutes, and has been elaborated by learned men. Written law is taught only at the Legal Faculties of the Universities, in West Sumatra at Universitas Andalas in Padang. !he courses include lectures on Dutch civil law, the students thus becoming acquainted with the principles of Dutch property and inheritance law. Some more written law is taught at the APDN, the Camat Training School, but there no courses in western property or inheritance law are given. The judges in the State Courts -the State Courts are, with a few exceptions, all staffed with Minangkabau judges -for the greatest part are University graduates (according to the law, judges must be law graduates) or have at least followed the training in the School for Judges and Public Prosecutors, where the basic principles of western law are also taught. But these sources of knowledge are not open and accessible to the common villager, and they interest him little. The written law which reaches the villagers consists mainly of government re~llations relating to administrative matters. Thus there is no actual knowledge of the western written law of property and inheritance, although the most relevant provisions of the Basic Agrarian Law and the new Marriage Law are known to many. But most villagers hold some vague notions of what western law is, like: That Dutch family law does not recognize matrilineal descent; that it is patriarchal; that the children follow the father; and that they inherit from their father, whereas the mamak does not play a role in western law. It is also known that according to western law a person is quite free to dispose of his property as he wants to, and that his relatives cannot interfere in his property relationships. Information about written law reaches the villagers mainly through the ch~înels provided by the State administration. National or provincial regulations flow from the provincial administration to the Bupati's office, from the Bupati's office to the Camat's office. The WaZi Negeri receive information and instruction from the Camat. A separate channel is provided by the Department of Information which keeps information officers down at the Kecamatan level. If new regulations are to be ex-

PLURALISTIC SITUATION 131

plained or propagated, the information officer calls a meeting of the WN of his Keaamatan. Another important channel of information is the organization of the "Kar>apatan Adat League of the Minangkabau World" (Lembaga Kerapatan Adat Alem Minangkabau, LKAAM). The LKAAM is a government sponsored organization of adat-functionaries which functions on Keaamatan, Kabupaten, and Provincial levels. It serves as a forum in which government plans and policy are explained to the adat-elders by the representatives of the GoveTI1I)lent, wi th the aim of securing the adat-elders' cooperation for the implementation of these plans. 34 The information thus flows through the various channels to the village government, either to the Wali Negeri or to the Head of the Kar>apatan Adat. In meetings it is then transmitted to the Niniek Mamak, the lineage elders, whose task it is to pass it on to their kamanakan.

2. The Knowledge of Islamia LCM The principles of Islamic law are known to a much greater extent. "ReaI" knowledge of the law, the fiqh, and of its interpretation and application, however, is firmly ascribed to the status of alim ulama, of the religious expert. Principles of Islamic law, as part of the religion, are taught at all levels of the educational system. In the nagaPi, children of the age of 8 to 10 years follow a yearly course of religious instruction which is held in the mosque or surau. They are taught rudiments of the Arabic language and are instructed in the Koran. At the end of this year, the Khatam-al-Koran ceremony is held: The children are led in a procession through the village, accompanied by relatives and neighbours. On the return to the mosque, each child recites one verse of the Koran. This ceremony is followed by a feast, which usually takes two days, during which friends, relatives and neighbours come to congratulate the parents and matri-relatives of the children and to eat with their hosts. There is some religious instruction in government schools, and systematic teaching takes place in the Islamic schools at primary and secondary school level. 35 Religious instruction -for all villagers -is regularly carried out at night in the rnosques and surau. The Islamic functionaries recognized as alim ulama who act as teachers there, of ten are persons who have learned religion from a recognized teacher, and have had no formal education in religious matters.

PROPERTY IN SOCIAL CONTlNUITY

Even if the exact knowledge of Islamic law and its interpretation is a matter for the experts, the general principles of Islamic law are weIl known to all Minangkabau. Islamic law plays its most important role in the field of marriage and divorce, and the basic rul es are regularly restated in the relevant procedures. In inheritance matters it is weIl known that the Islamic rules of inheritance differ radically from the adat rules. Everyone knows that according to Islam "the children inherit from their father", and that male heirs get a bigger share than female heirs. Most people know that the actual distributory rules of Islamic law as laid down in the Koran are much more complicated, but these details are considered a matter for the experts (which is understandable in view of the complexity of these rules).

3. The KnowZedge of Adat
a. The Knowledge of Adat in the Nagari Most of adat is known to the population, but there are also several fields of adat which are considered the special knowledge of experts. Adat is learnt during the process of socialization. Children listen to their elders, observe their behaviour, learn the language and the many adat sayings in which adat rules and maxims are embodied. The basic principles of adat are taught at a very early age. Children are systematically educated in feelings of shame, of propriety, and of lineage solidarity. Much of adat is learnt by observation and imitation, but there is also (or used to be at least) some formal instruction. When boys move to sleep in the surau, they are taught by older men, if possible by their mamak. Children are allowed to attend most ceremonies and formal occasions, at which adat is restated in ceremonial language by the adat-functionaries. In some nagari (such as Padang Parab, where we attended two panghuZu installations) children are even allowed to attend the most formal meetings of the panghuZu installation. Adat is also contained in most of the stories and epics told to the children, and there are some stories, like Raneak DiZabueh (see Dt. Panduko Alam 1954, Johns 1958) which contain more or less the whole of the principles of adat morality and law. Rethorical skill is highly valued in ~1inangkabau. Knowledge of adat not only means the ability to remember adat rules and proverbs once learnt, but great emphasis is laid upon the capacity to reproduce adat in the proper verbal behaviour. Each proper Minangkabau must be able to

PLURALISTIC SITUATION 133

berunding, to talk in a highly flowery and polite phraseology, which is Eull of allusions. For it is one basic principle of adat (under which the curious anthropologist willoften suffer) that one may not speak straightforwardly: "Indak bulieh taruih tarang"-"you may not express yourself directly and clearly", was a phrase which we repeatedly heard during our stay as a characterization of the proper way to speak in adat. To berunding is generally learnt by observation and imitation. For other forms of verbal behaviour, however, special knowledge is required. The pasambahan is a form of formalized speaking which is employed at all ceremonies. It also consists of allusive and flowery phraseolqgy which involves a constant restatement of adat proverbs and rules, in which the intentions of the speaker have to be expressed. The pidato are adat recitals, which are held during the major ceremonies, for which there are different kinds of pidato. Those pidato held during panghuZu installations mainly consist of a recital (spoken or sung) of the tambo of the Alam Minangkabau, the Minangkabau adat and its historical (tambo) development. The pidato are performed by younger adat functionaries, in CKL by the anak mudo. The pasamabahan and the pidato must be learnt from someone who is "pandai", an expert, and this invol yes a formal teacher -pupil relationship. Nowadays, there are several "standard-versions" of the most frequently used pasambahan and pidato which have been published by Minangkabau adat-experts. A more intensive knowledge of adat is expected from the adat functionaries and lineage elders. The adat functionaries, the panghuZu and juaro hindu in particular, must "know" the adat. They must know how to use adat in the processes of decision making. They must be skilIed in the verbal behaviour which is employed in these processes. They further IIllst know the undang2, the kato, and the cupak of the Minangkabau adat and the nagari's own adat. This knowledge has to be learnt from a teacher, who should be a mamak or the panghuZu or some other pers on of one's suku who has a reputation for his *adat-*knowIedge. Young panghuZu who have not yet had the opportunity to learn enough continue their adat-education af ter their installation. 36 This intensive knowledge of adat is one of the prescribed status attributes of the adat functionary. But villagers are quite aware of the fact, that not all panghuZu are equally knowledgeable, and that in contemporary Minangkabau "panghuZu are not what they used to be". Particular skill and knowledge as weIl as obvious inabilities are freely discussed and commented upon. Intensive knowledge of adat is not only

PROPERTI IN SOCIAL CONrlNUITI

recognized in adat functionaries. It can also be achieved by persons who do not hold any office. Their abilities will always become evident as they are-displayed at the nUl!lerous public occasions and ceremonies. Persons who acquire the reputation of great knowledge and who are neither adat not Islamic functionaries, are cal led Caradiek Pandai (Ind.: Cerdik Pandai), the "intellectuals", who may play an important role in nagari po 1lt1ca " " 1 1"1fe. 37 An important part of expert adat knowledge is the adat of one's naga- ri; in particular its history, its constitution, the political and genealogical relationships between the buah gadang and the status of their panghuZu. Such knowledge is of great relevance in the frequent disputes over kaum or buah gadang property, especially when one kaum or buah gadang has become extinct and the question of its inheritance has to be settled. This kind of knowledge is highly valued and kept secret. It means prestige and power and has also some economic consequences. For if such knowledge is required to solve a dispute, the expert will be approached with customary (or modem) gifts. For the common villagers and the experts themselves, the differentiation of adat knowledge is accepted as a matter of facto In discussions about the adat of CKL and its development, we were frequently referred to those ''who know", even when we had reason to assume that the person asked would perfectly know himself. The experts, too, held th at "knowledge must be in different levels" (iZmu mesti bertingkat2). There are some fields of knowledge which are ascribed to the panghuZu or juaro status: Only a panghuZu "can" know about the development of his suku (buak gadang etc.) and the development of the original lineage property belonging to the buah gadang of his suku. Others "cannot" know this. This knowledge is transmitted to selected pers ons only, generally to the prospective successor, and only when the expert feels his end cOill1ng. " 38 On a lower level, the buah gadang or kaum genealogy, and the location of the property are also transmitted from mamak (group head) to his kamanakan (his prospective successor). This knowledge is part of the group's heritage, which may only be transmitted within the group. Minangkabau adat says: "warih dijawek"-"it has been received as heritage". Reference to this kind of acquisition of knowledge is a valid basis for eVl "d ence ln*"adat. 39*

PLURALISTIC SITUATION 135

In contemporary Minangkabau, the value attributed to adat knowledge has decreased, and so has the number of persons who are adat experts. The younger genera ti ons are attracted by the new knowledge offered by the schools which opens the way for new and attractive careers outside the nagari. The panghuZu have lost much of their traditional authority, and their position is less respected and desired than before Independence, when the adat functionaries were used as the main tooI of Dutch colonial policy. In the nagari, there are only a few younger people who really want to learn adat, and the panghuZu in CKL had only a very few pupils. The youthsin the towns seem to display no interest in adat at all. The adat elders and the adat pressure groups are greatly concerned with this situation. At present, adat is not taught at schools, and people realize that in the field of the formal educational system, adat has lost all ground to religious and modern knowIedge. At the LKAAM-meeting in 1974, a special committee on adat-development had been formed, which made some proposals for the improvement of the situation. According to these, adat is to be introduced in the curriculum of primary schools. In addition, the LKAAM intends to organize courses and lectures in adat in the towns and nagari. Lectures which had been organized by Bunda Kanduang, the Women's Adat League, were held already shortly af ter the LKAAM-meeting of 1974. Finally, plans have been made to found a People's University (universitas masyarakat) in which lectures in adat shall be given. This university will be open to everyone interested in Minangkabau culture (see K.v.Benda-Beckmann 1975: 73).

Besides the predominant oral tradition of adat, it must be noted that since the beginning of this century a substantial number of books and brochures has been published by Minangkabau, generally by panghuZu. The start was made by Ot. Sangguno Oirajo (1919, 1920, 1924, for an early review see Ter Haar 1934b) and the publicity campaign for Minangkabau adat was furthered by Ot. Sutan Maharajo who edited several joumals in which adat was explained and discussed. Both writers reacted against the publishing activity of the Islamic pressure groups (see Taufik Abdullah 1971,1972). Most of this expert literature consists of an exposition of the tamba and Minangkabau adat, stressing its compatibility with Islam and the state ideology of the Republic, of ten in the form of a serious attempt at reinterpretation of adat in the terms of religion and ideology, of ten as a lip-service only. The ideas contained in these books and the systematization of adat and history are to a growing extent

PROPERTY IN SOCIAL CONfINUITY

disseminated to the nagari, and we have met or heard of several panghuZu who returned to these books when they thernselves were interviewed 40 as experts.

b. Knowledge of Adat in the Courts As has been mentioned, the judges consider thernselves experts in law, not in adat. In the curriculum of the Legal Faculties, courses on adat law are taught, but these courses are on "adat law in generai" and are mainly based upon the writings of Dutch (Van Vollenhoven, Ter Haar) or Indonesian scholars (Supomo). There are no courses on Minangkabau adat law in particular. Most judges, however, are Minangkabau and have undergone some socialization in adat, and some of the elder judges are thernselves panghuZu. However, the crucial questions which decide about 80% of the court cases, are not problerns of substantive adat (adat law) rules (in the sense of legal consequences) but rather problerns of evidence and nagari- specific adat: The constitution of the nagari, the genealogical relationships between buah gadang, the genealogical position of the parties, etc. These facts generally are not known to the judges, and in practically each case expert-evidence given by panghuZu of the nagari is required. As the research of K.v.Benda-Beckrnann has shown, much confusion arises from the fact that the standard terrninology for property holding groups used in the courts -the kaum under the mamak kepaZa waris-is insufficient to understand the actual relationships in a dispute, and frequently does not correspond to the terrninology used by the parties. 41 With the exception of several judges who are generally acknowledged to be knowledgeable, the villagers do not consider judges to be experts in adat. Court judgements are freely criticized as not being in accordance with adat. However, it is generally only the outcome of the dispute, the concrete decision, which is evaluated by the villagers against their own understanding of adat. The legal reasoning of the judges and their elaboration of adat law usually do not come to the notice of the villagers.

FOOR

1lffi LEVEL OF MEANING: SYSTEMS OF PROPERTI RELATIONSHIPS IN MlNANGKABAU

A. INfROOOcrORY NarE In the last two chapters an exposition has been given for the detailed study of the systems of property relationships through the description of the basic principles of the socio-political organization and of the administrative and legal pluralism in which they operate and of which they are part. I have until now spoken of Adat, Islamic Law and Written Law as ''bedies'' or "systems" of conceptions • I should like to emphasize that this was a description of ethnographic facts, for in the official legal system of Indonesia, in the social processes which deal with property and inheritance, and in the knowledge of the Minangkabau these three bodies of conceptions are treated as distinct systems. In this chapter, I shall describe the substantive content of these systems. Most space will be devoted to the system of adat, for it is the system which is generally applicable in property and inheritance matters. Yet a brief account must also be given of the other two systems. This is because the treatment of the three bedies of conceptions as distinct systems does not, of course, mean that ideas and principles of one system cannot be used as part of another. Neither does it indicate to what extent system-external legal or non-Iegal factors have influenced those conceptions which are regarded as part of the adat system. These problems will be analysed in Chapters 5 and 6, but in order to analyse the possible influences of such system-external ideas, they must be known first. In this context two remarks must be made which directly affect the following description of the systems:

SOCIAL CONfINlJI1Y

1. Since the Islamization of Minangkabau, many words of the Arabic language which are part of the legal tenninology of Islamic law have been incorporated into adat; in fact, a great part of adat has been expressed in these words since then. Though, as far as we can teIl, they in general signify adat-institutions and not, as we do know, the ones of Islamic law, the restatement of adat in Islamic legal concepts must have had a heavy influence on the pre-Islamic adat (see Taufik Abdullah 1966: 9 f.). Unfortunately, there are no data on adat from pre-Islamic times, and one is left to do one's best in intelligent speculation. I shall deal with this problem in the sixth Chapter when I try to analyse the change in the conceptual system of property relationships in Minangkabau in general. Yet whatever the influence of Islamic legal tenninology may have been on pre-Islamic adat, adat and Islamic law have henceforth always been distinguished in Minangkabau, and Islamic law has continuously been taught and transmitted as a distinct legal system. In this chapter, I shall describe this system as far as it is directly related to the study of property relationships in Minangkabau.
2. An important part of adat is emhodied in conceptions which refer to the processes of decision making. The outcome of these processes depends much more on social interaction processes than on the substantive criteria in terms of which the decision must be legitimated. But in the Dutch colonial courts and in the present Indonesian State Courts, whose judgements constitute an important source of data, the law of procedure and evidence is a modified version of Dutch procedural law. Through this, an important part of adat is surpressed in the courts. This affects the judgements of the courts the more, as most judgements depend on questions of evidence, whereas the substantive rules are generally undisputed. The analysis of these effects, important as they are, would go far beyond the scope of my study. They fonn an important part of the study which
   K. v. Benda-Beckmann has made on the work of the contemporary State Courts in Minangkabau. The adat produced by the courts and the adat produced by the other agents of externalization should therefore, on this ground alone, be differentiated, irrespective of the question as to how_far the substantive rules, which are externalized within and without the courts, are congruent or not. The new procedural system has not only influenced the law produced by the courts, however. It has also had an impact on the procedures used in the adat institutions, as a comparison of the old adat processes with the current processual practices

clearly reveals (On this problem see Ter Haar 1929, 1950 I: 416 ff.). It constitutes one of the many factors which have influenced adat in its development, which shall be briefly discussed in the sixth Chapter.

B. ADAT
I. CATEGORIES OF PROPERTY RELATIONSHIPS AND PROPERTY OBJECI'S IN MlNANG-KABAIJ ADAT In Minangkabau adat, as in many other traditional social systems, property relationships are one aspect of social and political relationships which are not clearly conceptually distinguished from the latter. The principles of social and political organization which have been described in Chapter 2, also govern the system of property relationships to a large extent. This holds true both for the level of socio-political authority over property as weIl as for the level of use and exploitation. However, it is characteristic of the basic Minangkabau categories of property objects, that they de fine the legal status of property objects in relation to the person(s) holding them. The categories of property objects are construed as "man-thing units" (Bohannan 1963: 102); they do not express the rights and duties, the specific relationships attached to the property objects. 1 On the level of socio-political authority over land, the main concepts are tanah ulayat ("trust"-land) and pusako (heritage). When the formerly autonomous buah gadang united to form a supra-buah gadang community, the nagari, they had to cede some of their autonomy to the newly established community and its governmental agents. With respect to the land which they had taken possession of before the foundation of the nagari, however, hardlyany autonomy was ceded. This land already become their pusako, their heritage, which was transmitted through the generations of group members according to the rules which will be described in detail in this chapter. The nagari had no competence in pusako matters. As hasbeen mentioned earlier "pusako matters are decided by the lineage elders" (pusako sakato niniek mamak). But the control over the area claimed as nagari territory which was not yet the pusako of one of the buah gadang was assumed by the groups together. This area was called u layat or tanah ulayat, "trust-land", and the authority over this area was vested either in the nagari's governmental agents or it

IN SOCIAL CONfINUITI

was distributed among the buah gadang/panghuZu who had founded the naga- rio Depending on who exercised the authority, the land was styled tanah uZayat nagari or tanah uZayat panghuZu. The relationships on the level of use and exploitation center around the concepts of harato, rnaterial property objects, and the various categories of harato known in adat: The harato pusako,inherited property, the harato panaaharian, self-acquired property held by individuals, and the harato suarang, the self-acquired ccmnon property of spouses. Before the relationships legitirnating the use and the exploitation of property objects are described, the basic categories of uZayat, pusako, and harato and their subcategories will be outlined in the following section.

1. The LeveZ of Soaio-PoZitiaaZ Authority over Property (Teroritory) Since regular inforrnation on Minangkabau adat has become available, the concepts uZayat or hak uZayat have been used to denote the highest form of property relationships exercised by and vested in the community or its governmental agents. Both uZayat and hak are Arabic words. Hak means right, power, competence; uZayat means guardianship, trusteeship (Westenenk 1918a: 15). In recent usage in Minangkabau and Indonesia in general, the term uZayat or wiZayat has assumed a spatial meaning: "area, region, district". There is little information on the pre-Islamic and pre-colonial system of property relationships and its conceptiml expression. Westenenk (1918a: 19) and Kroesen (1874: 7), however, report an adat saying which refers to socio-political control over land and which does not yet employ Arabic words.
Nan barimbo rajo, rajo nan bautan kareh, panghuZu nan bauran Zambuik, kamanakan

Literally, this would mean:

The King's jungle belongs to the King The hard forest belongs to the panghuZu The soft forest belongs to the kamanakan

Kroesen, Westenenk, Willinck (1909: 651) and indeed most authors on Minangkabau adat were convinced that the reference to rajo, '''king'', was not to the King of Minangkabau, as according to most sources the king

PROPERTY RELATIONSHIPS 141

of Minangkabau did not exercise any socio-political control over land. They translated '1'ajo as "king in the nagaPi", as referring to the highest governmental institutions of the nagaPi (Kroesen 1874: 7; Westenenk 1918a: 19).2 In his translation, the saying has the following meaning:

The jungle is under the nagaPi government The hard wood, the cultivable but yet uncultivated area, is under the panghulu The soft wood, the area under cultivation, is under the kamanakan (1918a: 20).

This interpretation is plausibIe. Yet the translation of '1'ajo meaning nagaPi government could not be extended to the tanah '1'ajo-the "king I 5 land". The tanah '1'ajo was a strip of land between adjacent nagaPi which had the status of no-man's land. Nobody was allowed to cultivate it, and it was believed that any encroachment would evoke magical sanctions. The tanah '1'ajo was also used as a battlefield for inter -nagaPi wars, where the pa'1'ang batu, the stone war, or the parang bedil, the rifle war, were fought (see AB 27: 327; Willinck1909: 119). It has been reported that in fOI1l\er times such wars had to be stopped when a royal emissary of the King planted his yellow banner on this land. Rajo, meaning'~ing in the nagaPi" would certainly be a wrong translation here, as nobody from the two adjacent nagaPi could lay any claim on this land. Yet it would be premature to conclude from the few available data, that the King of Minangkabau exercised political control over this land or that this land may have even been worked for the King in times of greater centralization and expansion of the Minangkabau empire (Kahn 1976: 89 f.). Still, there certainly is a reference to the King of Minangkabau, on the exact nature of which one can only specula te. As the kingship in Minang- kab au was identified with the sacred and magical, the tanah '1'ajo may have been attributed to the King in this sense, which may have led to the custom of having his emissaries bringing peace to the land by appeal to his mystical powers. This interpretation would not cover Westenenk's translation of 'l'imbo l'ajo as "jungle under the nagaPi government". But it is possible that, contrary to Kroesen, Willinck and Westenenk, rimbo l'ajo also referred to the King of Minangkabau as the sacred inter-

PROPERTY IN SOCIAL CONTINUITY mediary between the hwnan and superhuman worlds. Both tanah rajo and Y'imbo rajo then would not have made part of the old adat classification of property relationships, as the "king-thing (Y'imbo, tanah) units" did not imply a possessory or controlling relationship. In contemporary Minangkabau, the tanah rajo, where it is easily accessible and is good rice land, is cultivated, and has since long been transformed into pusako, the inherited property of a buah gadang or kaum. Since the Dutch colonization, socio-political control over communal property was expressed as ulayat or hak ulayat. The Dutch writers translated hak ulayat as beschikkingsrecht, the communal right of avail. 3 There is some dis agreement between the Dutch authors as to which part of the nagari the hak ulayat extended and in whom it was vested. Some held that the hak ulayat was exercised over the whole nagaY'i territory (Van Vollenhoven 1918: 263; Westenenk 1918a: 16); in other reports it is said that it pertained only to the uncultivated areas and the forest within the nagari territory (Résumé 1872: 15; Kroesen 1874: 7,9, AB 11: 77, AB 11: 115 ff., 122, 124). These apparent contradictions can, however, be resolved: It had been early realized by the Dutch that in most Indonesian societies there existed property relationships expressing socio-political control which were held by communities. These relationships had been labelled by several terms, for example ulayat, which were of ten taken from the regional languages. The term beschikkingsrecht, which already had been employed by previous authors (Kroesen 1874; De Rooij AB 10: 113) became the standard term through its use by Van Vollenhoven (1919,cf. Ter Haar and Logemann 1927: 5).4 This beschikkingsrecht extended over the whole nagari territory, but in different manifestations. So far as nagaY'i terri tory was "dipusakoi", made into the pusako of one of the resident buah gadang, the socio-political control was vested in this group alone: on th is point there are no contradictory reports. Only the beschikkingsrecht over the uncultivated areas was denoted by ulayat nagaY'i or ulayat panghulu in Minangkabau, quite in correspondence with the Minangkabau way of categorizing property objects and property relationships, which does not conceptually focus on rights but on the status of objecrs. The beschikkingsrecht over the ulayat (or, in Dutch usage: the hak ulayat over the ulayat land) seems to have been vested in the panghulu in most nagari, either as the representatives of the nagaY'i or as the representatives of their lineages (see Westenenk 1918a: 22; Van Vollenhoven 1918: 263; Kroesen 1874: 7, 9; Résumé 1872: 11; Willinck 1909: 119).5

OF PROPERTY RELATIONSHIPS 143 The relationships of individuals to property of pusako status will be described in detail in the later parts of this chapter. The land which was uZayatcouldbe used by all inhabitants of the nagari, or, if the uZayat was distributed between the suku or buah gadang, by the members of these groups only. According to most authors, such use was free, at least if no permanent use was intended (Dt. Sangguno Dirajo 1924: 73; Willinck 1909: 675 ff.). Kroesen reports, that the panghuZu were not asked for '~ermission" if non-permanent use was intended, but that they had to be asked if permanent use of the land was planned (1874: 10-12). In later times, fees, uang adat, were demanded, but this custom probably only developed when the panghuZu had been incorporated into the Dutch system of local administration. Such fees were demanded for the mining of land (bunga tanah), when forest products were collected or used systematically (bunga kayu), or when Zadang (dry fields or gardens) were made (Willinck 1909: 675 ff.; Westenenk 1918a: 27 f.; Kroesen 1874: 10 ff.; Résumé 1872: 20 f.; AB 41: 381 f.). The fees consisted in part of gold and generally in a ceremonial meal in which the permission was asked and the authority of the uZayat holder formally acknowledged. If permanent agricultural use of uZayat land was intended, the property became subject to the set of property relationships which regulate use and exploitation in general. Newly cultivated land (tarukoan) was the self-acquired property (harato pancaharian) of the cul·:ivator. If af ter his death his heirs did not want to continue to use the land, the land simply reverted to the uZayat holder as part of the uZayat. If the heirs continued to use the land, it became their harato pusako.

This genera I outline, drawn from the literature, is more or less in accordance with what we were told in nagari CKL: The panghuZu who first moved into the territory of the present nagari CKL, the panghuZu 7 suku, took possession of as much land as they wanted. They constructed rice fields, built houses, and made grave-yards for their buah gadang members. The land which was permanently used was their harato pusako, their inherited property. When the population increased and when new groups moved to the territory, still uncultivated land was given to the newcomers by the original settlers. At this time, the original settler groups and their panghuZu were the absolute lords over the land. The panghuZu 7 suku were the highest authorities in land matters over all those who had received land from them. When, at a given time, the groups resident in the nagari founded the nagari, the areaunder cultivation and the

I I 500 I 150 I 1000 I m

T.P

...... ~.~.~ ................. .

T.P. .'
,

(--------------------.

... _----- ",, I, I I, I Koto Batu Palano,, I I I
..... .....
.',,, I I i"···-·-···-·-·-. ..: IL.-... _ .• I '- '-.-'-' _.'" / I I

T.U.,I
IKoto Tangah I I,

T.P. \I
I I I
I.,.-....._ ......... .. I I
I I,.~.-· ... ···7 I I ,., I ". :

l. " / Koto Tungguek : "... ;' : '-i ____, :
I I T.U.

T.u. _. __ I I
T.u.
........
. '

.......

/...... T.J.

'. MOUNT MERAPI

N\AANVYV" kubu Zantak nagari

T.U. tanah uZayat T.J. tanah jajahan T. P. tanah parampasan CKL -The development of the nagari terri tory

o 50 100 150 200 m I I ,

/

a:m:::uku unknown

suku Melayu

-1IIIIIIIIsuku Tanj Wlg

CJsuku Sikumbang

[El] suku Koto

esuku Jambak

Effiffi] suku Caniago

53suku Guci

suku Pili

o

o

Distribution of harato pusako per suku in Candung Kata Lawas

PROPERTY IN SOCIAL CONfINIlITY

areas reserved for future cultivation were declared the official nagari terri tory, the lantak nagari (see map on p. 144). The nagari and the lantak nagari ''belonged'' to the 60 founding panghulu, politically and economically. The distribution of the buah gadangs' harato pusako was marked by signs and stones, and this distribution pattem, the corian barih (Ind.: coreng baris, "the streak of lines") symbolized the property constitution of CKL. Still today, the adat experts of CKL teach their pupils !he titles of the 60 oldest panghulu by asking them to find out who (which buah gadang) has the largest portions of harato pusako within the lantak nagari. The area adjacent to the lantak nagari was also claimed as nagari territory. In CKL it was cal led tanah ulayat panghulu. According to the unanimous opinion of all CKL-experts, it was the tanah ulayat of the 60 panghulu. At least in the areas which were suitable for rice-cultivation, the tanah ulayat was (at which time?) distributed among the 60. This is still easily observabie in the northern part of CKL, where the tanah ulayat was divided into parallel strips of land running downhill (turihan) and where each panghulu was assigned one of those strips (see map on p. 145). The tanah ulayat was mainly used to gi ve land to expanding group members and to provide newcomers, who had associated with one's group, with harato pusako. In contemporary CKL, the area which was tanah ulayat is dipusakoi, i.e., is the harato pusako of various buah gadang, but the former border between the lantak nagari and the tanah ulayat is weIl remembered; the expression tanah ulayat is today only used in a territorial (spatial) reference. Only in the southern part of CKL, on the higher slopes of Mount Merapi, is there some tanah ulayat which is not yet harato pusako. The present terri tory of CKL comprise.s more than the lantak nagari and the former tanah ulayat. Surrounding the tanah ulayat was tanah parampasan, open land over which one had fought in former times, and which one had incorporated into one's nagari (see map on p. 144). In these areas, one had built kubu (walls, fortifications ) and settled ''brave men" in the kubu area to demonstrate the territorial claims of one's nagari. The kubu area settlers were mostly strangers or the descendants of former slaves. When the attempts to take possession of these areas had succeeded,the tanah uZayat was extended to the newly won land, and i t was generally given to the settlers as their harato pusako. ArlOther area making part of CKL, the area of 100 Janj ang ("the hundred steps") (see map on p. 144) was tanah jajahan, "colonial" land.

This area was won in war (during the Padri-war?) from the neighbouring nagari-50 people in CKL claimed. When this land was occupied, the number of the panghulu recognized as members of the Karapatan had increased to 100. Each panghulu ~as given some land in the area, which he then distributed to the buah gadang members who wanted to settIe in this area. In present CKL, nearly all former tanah perampasan and tanah j aj ahan is harato pusako of the buah gadang, wi th the exception of same tanah jajahan on the slopes of Mount Merapi which is not cultivated. Like the uncultivated tanah ulayat, most of this area has been declared State Land and is under the administration of the Forestry Department. I have not been able to find out precisely who exercises con trol over it according to adat. Permanent use can only be taken up with the permission of the Wali Negeri.

2. The Category of Pusako Pusako (Ind.: pusaka) is a word derived from Sanskrit. 6 In Sanskrit the supposed cognate means "those things that serve to sustain life", and in the Indonesian languages it means "inherited things, heritage" (Loeb 1935: 108). In Minangkabau adat, the term pusako embodies the ideology of matrilineal des cent and heritage. The most famous and most frequently heard adat-saying goes:
Dari niniek turun kamamak Dari mamak kakamanakan 7 Patah tumbuah, hilang baganti Pusako alam baitu juo

From the great-uncle (MME) it is handed dCMI1 (it descends ) to the mcle (MB) From the uncle to his nephews and nieces (ZCh) Where it breaks oH, it grows again,mereitislost,itissubstitutedagairl It is just the same as with the pusako of nature

Pusako is divided into two basic categories by most Minangkabau adat experts:

1. pusako which is immaterial, the pusako kebesaran
2. pusako which is material property, the pusako harato. The pusako kebesaran consists of immaterial entities which are the heritage of a group. Experts list under pusako kebesaran the suku, the adat-istiadat, the papatah patitih, and the titles. The category is

PROPERTY IN SOCIAL CONTINUITY

of ten equated with the most important part of the pusako kebesaran, the sako, the title of the group's adat-office holders, and some authors therefore distinguish between the sako and the pusako harato. 8 The pusako harato are material property: hutan-tanah, sawah-Zadang, pandam- pakuburan: the forest and the land, the wet and the dry rice fields, the place for the living and the place for the dead (Dt. Sidi Bandaro 1965: 76). The pusako harato is, however, not limited to the heritage of immovable property: also included are movables like the ceremonial costumes of the panghuZu, the valuable bridal costume, cattIe; also money or gold can be harato pusako. Harato pusako as inherited property is generally subdivided into four classes:

1. harato pusako tambiZang ruyuang or harato pusako turun temurun
2. harato pusako tambiZang ameh
3. harato pusako tambiZang basi
4. harato pusako tambiZang kai'tan or harato hibah The classification distinguishes the pusako property according to the way they were tambiZang, "dug up" with a spade,i.e. the way they have been acquired:
1. The harato pusako tambiZang ruyuang, the property which has been "dug up from the tree sturnps", is the property which the ancestors have created by their cultivation of the jungle. It is the actual pusako property which is turun temurun, which "descends and descends" through the generations of buah gadang members.
2. The harato pusako tambi Zang ameh is the property which has been acquired through the use of gold (later money). In this class also feIl the budak pusako, the slaves who have become pusako property (Kielstra 1892: 641; AB 11: 74 ff.; Willinck 1909: 139).
3. The harato pusako tambiZang basi is the property which has been acquired with (the) iron (hoe). This is land which has been newly cultivated, the tarukoan.
4. The harato pusako tambiZang kai'tan or harato hibah is property which has been acquired by the way of hibah, gift (on hibah see Chapter 4:
p. 178 H.). Of ten only two of these categories are used to express distinctions
in the harato pusako. Thus tambiZang ameh and tambiZang basi are used to contrast the basic different modes of acquisition: by gold or by

agricultural work. Both tambilang ameh and tambilang basi are used to distinguish harato pusako which have been acquired recently from the harato pusako turun temurun, the property acquired by the ancestors. This classification of harato pusako was given by adat experts in CKL, and it is the one most frequently mentioned in the writings of Minangkabau adat experts (see e.g. R.M. Dt. Rajo Panghulu 1971: 135; Dt.Majoindo 1956: 89).9 In contemporary Minangkabau, the classification of harato pusako most frequently used is the one between the ''high'' and "low" pusako property (harato pusako tinggi and harato pusako rendah). ''High'' and "Iow" indicate the relative distance in time from the time at which the property was made into pusako: High pusako property acquired by the ancestors at a time which is not remernbered anyrnore, low pusako property is that which only recently has become pusako; one still remernbers the persons who acquired it. This distinction has been employed in the Dutch colonial courts, a practice which has been continued by the judges in the Indonesian State Courts. It is also used by Minangkabau villagers and adat experts (see Dt. Sidi Bandaro 1965:

77) .10
3. The Category of Harato Harato (Ind.: harta) in Minangkabau adat means 'IDaterial property objects".ll The use of the term implies that the objects are conceived of as standing in a relationship of being possessed by a person or group of persons. The relationship is not, however, specified. Harato more or less corresponds to the meaning of the English concept "property" and to the way I use the concept 'IDa terial property object" in this s tudy. The main distinction of harato is between the harato which are pusako and the harato which are pancaharian. The harato pusako have already been discussed above. Harato pancaharian (from: cari, mancari - to look for, to search) are property objects which one has acquired during one's lifetirne by one's own efforts. Most harato pancaharian are movable property objects (most land is harato pusako), but land which has been bought or which has been newly cultivated (tarukoan) is also harato pancaharian. Besides the "pancaharian proper" there are also property objects which are "impure" pancaharian in the usage of Guyt (1936: 78). "Impure" property has been self-acquired, but the basis of its acquisition has been harato pusako, "harato pancaharian pokok asalnya didapatinya dari pada harta pusaka" (Dt. Sanggoeno Dirajo 1924: 101). A young kaum member,

PROPERTY IN SOCIAL CONflNUITY

for example, has been given some more starting capital for his trade, which was taken from the sale of the ri ce harvested on the harato pusako. Or a kaum member was given money from the pusako in order to go to school and university which enabled him to become a rich and successful man. Although the later profits of the trader and the salary of the graduate undoubtedly are pancaharian, their initial source, the asal usulnya, was his group's harato pusako. The Minangkabau themselves do not separately label these two "kinds" of harato pancaharian, though they do recognize the distinction. Their point of view is that, as far as harato pancaharian are concerned, one must always look into the background and source of it and determine whether it has some connection with the pusako or not. This factor influences the legal consequences which are attached to the harato pancaharian, which will be described later (see Chapter 5: 267 ff.).

The harato category is also employed to de fine the legal status of marital property. The property acquired by husband and wife during the marriage is their harato suarang or harato pasuarangan (Ind.: perseo- rangan, individual), their common harato pancaharian which can only be divided at the dissolution of the marriage. The property which the husband brings into the marriage is his harato pambaoan, the '~rought property", labelling the post-marital domestic residence of the Minangkabau husband. The corresponding category for the wife is the harato dapatan, the "received property". 12 Both pambaoan and dapatan can comprise harato pancaharian and harato pusako. As Minangkabau used to marry at an early age at which they normally had not yet acquired much property by their own efforts, the dapatan and pambaoan usually signified the pusako - portions allocatedto the spouses by their kaum.

11. THE ADAT PUSAKO: ACQUISITION, USE, AND DIACHRONIC TRANSFERS OF PROPERTY RELATIONSHIPS BASED UPON GROUP MEMBERSHIP
    1. The Pusakoization of Harato Pancaharian The dominant idea of the Minangkabau system of property relationships is that all property is pusako which descends and descends through the generations of the members of groups which are structured according to matrilineal descent. All property has been handed down through the generations, and all property will be handed down through the genera-

151

tions, from the great-uncle (MME) to the uncle (MB) and from the uncle to his sisters' children. The pusako must be guarded, and it is the moral obligation of all kaum members to add to the kaum's pusako. The latter is the task of the men in particular. The "good" mamak must go out in order to mancari, acquire property. His earnings, the harato pancaharian, are destined to become harato pusako for his sisters and kamanakan. In adat, the harato pancaharian were, as Willinck put it, harato pusako in chrysalis state ("in larvenstadium " 1909: 584). The pancaharian status of property objects is temporary, it is tied to the lifetime of the pancaharian holder. Af ter his or her death, the property objects assume the status of pusako. This pusako can be specified by the means by which i t has been acquired (haY'ato pusak..o tambilang ameh or tambilang basi) or by reference to the person who acquired it (haY'ato mamak, the property which had been acquired by the mamak). In the contemporary usage in the nagaY'i and in the State Courts the haY'ato pancaharian which have been inherited are usually cal led haY'ato pusako Y'endah. 13 The inheri tance TUles for pancaharian inheri tance are the same as those that apply to inheritable property relationships to pusako objects in general (see below p. 157 ff.): Inheritance occurs within the pancaharian holder's jurai. For a female pancaharian holder, this is the jUY'ai of which she is the apical ancestress. For a male pancahaY'ian holder, it is the jurai of which his mother is the apical ancestress. Within the jUY'ai, inheritance occurs first in the older generation: for a woman her childrens', for a man his siblings' generation. For predeceased female heirs, the principle of representation allots their part to their descendants. 14 If the whole jurai is extinct (punah), the property is inherited by the jUY'ai with common apical ancestresses on the next higher generation level, by the woman' s mother or the man' s mother 's mother. The same principles pertain to the common pancaharian property of the married coupIe. According to the adat saying " suarang diagieh"-"the suarang is divided", the harato suarang are divided at the time of the dissolution of the marriage. If the couple is divorced, the property-half of each spouse is "normal" pancaharian again. In the case of death of one spouse, the suarang-half is normal pancaharian for the surviving spouse and the half of the deceased spouse falls to his or her heirs as haY'ato pusako Y'endah. 15 In many areas of Minangkabau, and specifically in CKL, the houses which had been built on the wife's group's pusako land partly or wholly with the husband's money, are not considered to

PROPERTY IN SoeIAL CONTINUITY

form part of the harato suarang. They are regarded as belonging to the wife's group's pusako, under the socio-political control of the wife's mamak. If the rnarriage is dissolved, the houses (the money invested in their construction) "remain" wi th the wife and no compensation is given to the divorced husband or the deceased husband's heirs (compare also Van Hasselt 1882: 227 f.). Polygynists form suarang complexes with each wife. As they stay in the houses of their wives, their harato pancaharian willoften also be separated spatially. In cases where the suarang complexes cannot be clearly distinguished, e.g. with capitalor property outside the nagari, one must try to sort out the wife with whom the husband had acquired the various parts of the property.

In the course of time, there has been a change in the inheritance rules concerning a man's harato pancaharian. Since the 1960's it has been official adat (law), that a man's harato pancaharian is inherited by his children. It becomes their harato pusako rendah and is turun temurun in their jurai, i.e. is henceforth inherited according to the rnatrilineal rules. If a man leaves no children, the rules of the adat pusako are followed. A similar change has occurred in the adat concerning the individual's autonomy to dispose of his harato pancaharian during his or her lifetime. Whereas in former times, such dispositions were only valid with the consent of the person's kaum members, in contemporary Minangkabau the individual can freely dispose of his or her harato pancaharian. The development of the adat concerning the inheritance of and the autonomy over one's harato pancaharian will be described and analyzed in detail in Olapter 6.

2. The ReZationships to the Harato Pusako
a. The Dual Olaracter of the Pusako-Group Relationship The harato pusako is by definition the common property of a rnatrilineal group, a jurai. The jurai which holds common harato pusako may be a jurai of any size up to that of the buah gadang. The status of members of a jurai which holds common property is the basis upon which they, whether as individuals or as subgroups of that group, are entitled to the use and the exploitation of the harato pusako. Two basic kinds of relationships legitimate use and exploitation: the distribution of

153 property on the basis of inheritable rights and the allocation of temporary rights. Before these are described, however, it must be explained that the relationship between the group and "its" harato pusako has a dual character in Minangkabau adat. The harato pusako are generally attributed to the panghuZu of the buah gadang, the members of which are spoken of as "the people of one pusako property": One refers to the "pusako of Dt. X". But from this usage one may not conclude that the panghuZu "owns"his group's pusako, or that he "owns it for" his group. This is evident in cases where such reference is made to a buah gadang's harato pusako, the last panghuZu of which has died some time ago. This attribution of the property to the title is not to the incumbent of the office, but to the title as symbol of the group. The group holds both ti tIe and property in common. All harato pusako which is held by the buah gadang's or kaum's members is considered the "harato pusako of buah gadang X" or "of Dt. X". Such reference, however, can mean two things:

1. It may refer to the fact that all group members hold the harato pusako in common in "adat", in the restricted meaning of that term signifying socio-political control over property and common representation in inter-group relationships in particular. Such reference is always possible.
2. It mayalso mean that the property is turun temurun for all group members, i.e., that it is common heritage for all group members alike. The group members' claims to a portion of the harato pusako can only be based upon the latter facto In principle, all harato pusako held by the buah gadang's members may be turun temurun for all group members. But usually, this is only the case with respect to a part of the property which is held in common in adat. There may be jurai with apical ancestresses on generation levels below the one of the buah gadang or kaum ancestress, which hold their separate pusako. Such separate pusako will come into existence through the inheritance of the harato pancaharian of a jurai member (see above) or through the reception of property by way of gift (see below p. 176 ff.). Such property is turun temurun only for the jurai, and only the jurai's members are entitled to receive a part of it in the processes of distribution and allocation. But also in this case, their harato pusako is under the control of their panghuZu and is part of "the pusako of Dt. X". If, for instance, pusako property is

PROPER1Y IN SOCIAL CONTINUITY

given by the bako to the children of one of their male lineage members, the transfer will occur in a public ceremony in which the panghuZu of the bako will ceremonially transfer the socio-political control over that property to the panghuZu of the anak pisang (see Duursma 1934: 160 ff., own interviews in CKL). Yet the property will be turun temurun only in the children's jurai, and only they are entitled to the use and exploitation of it. This distinction is of utmost importance for the understanding of pusako-relationships. The distinction has not always been recognized by Dutch writers on Minangkabau adat 16 and is usually not considered in the Dutch and Indonesian Courts. The introduction of the cliché of the "kaum which holds common harato pusako" and the neglect of the differentiated adat classification of harato pusako led to the concept ion that no such difference exists and that "the harato pusako tinggi of kaum X" are held in common also with respect to use and exploitation (see p. 190 ff. and Chapter 6: 353 ff.).

b. Distribution It is difficult to describe the principles of distribution of the harato pusako turun temurun of a group, for any given situation in the group's history which we try to conceive of as in the present (synchronic) flows out into time and assumes diachronic character. The property relationships on any ego's generation level depend on and are structured by the ones on the + 1 and + 2 generation levels; the former in turn predetermine the property relationships on the -1 and -2 levels. Thus in order to understand a given situation, we must know the principles which have structured it-the principles of diachronic transfers of property relationships. Yet conversely, in order to understand the latter, we must start in a given synchronic situation. In order to describe the principles of diachronic transfers, I shall start with a fictive point in the group's history, of a kaum which has common and yet undistributed harato pusako. The kaum's common pusako may not be divided (dibagi) unless the kaum is split. But the property of which the harato pusako consists can be distributed. However, not all property objects will be distributed. The movable property objects, the ceremonial dresses of the panghuZu and the bridal costumes, the ornaments and the family's gold will be kept in the house of the senior women, who will guard this pusako for the kaum. What is distributed is agricultural land and land for new housing

sites. If the kaum has more agricultural land than would be required by its mernbers, the surplus land may be left undistributed. In general it will not be worked in this case, but it may e.g. be pawned if the kaum requires money (see below p. 169 ff.). Also,some fields may be reserved for the panghulu or other adat functionaries,if the kaum has a living adat functionary. The sCMah pagadangan gala (cf. Kahn 1976: 71) or sCMah ninik mamak, the sCMah of the lineage elders, as it was called in CKL, would be worked for the adat functionary by his kamanakan in order to permit him to exercise his duties as group head free of economic troubles. The distributive mechanism is the bagi baumtuek, "the distribution for use" (bag i can mean both divide and distribute). Through the process of distribution, the recipients get the ganggam bauntuek, the "handful for use". The distribution must be the result of a kaum meeting in which a musyCMarah is held, and which must lead to a unanimous decision on how the property is to be distributed. The mamak has to see to it that such a meeting takes place and that a consensual decision is taken. He must prepare the mupakat in discussions with the individual households of his kaum. This is quite a difficult burden, as his aunts, sisters, and nieces may have quite different ideas ab out how the pusako should be distributed. The ganggam bauntuek is given to the kaum mernbers who need it most. In principle these are the women who have dependants: mothers or grandrnothers. The eldest living women on the same generation level (in our fictive example) have a right to get ganggam bauntuek from some part of the harato pusako, but there are no specific rules of distributior Distribution is subject to the general principle th at the ganggam bauntuek be distributed according to the needs of the various households. A woman married to a rich man, who has much of his own pusako fields at his disposition, should claim and get less than her po or sister. Likewise, a women who already has nine children will be given more than her sister who has only one child. The ganggam bauntuek gives its recipients the exclusive right to use and to exploit the property and to consume its products. It is, in principle, given in continuity to the woman and her jurai, but that does not preclude a redistribution at some later stage in the kaum history. If the circurnstances have changed, if the demographic development in the jurai has led to an obviously unfair distribution, the ganggam bauntuek distribution should be revised. But this is only possible in a new kaum meeting, in which again a unanimous decision on the redistribution

PROPER1Y IN SOCIAL CONTINUI1Y

has to be taken. These kaum meetings are a heavy burden for the mamak, for it is not always easy to bring his kaum members to a consensus about the distribution and redistribution of the harato pusako. In the deliberations much will dep end on the personal authority and influence of the main actors. If the mamak cannot convince his kamanakan of the necessity of a redistribution, the authority of the panghuZu may be invoked, and the quarrel may be discussed on all levels of dispute-settlement in the nagari. The panghuZu will press for a redistribution if he feels that the situation is intolerably unjust, and generally the disputing jurai will yield to the pressure exercised by the adat functionaries. Such forced rearrangements of the ganggam bauntuek distribution may seriously influence the inter-jurai relationships. Particularly when the original distribution has taken place some generations ago, the quarrel about the redistribution may give rise to the feelings that actually one does not want to be "one" any more: ''Why should one be bothered by a distribution which allegedly took place 60 years ago? Is it really true that our grandmother was a sister of Angku X who now demands a redistribution under the pretext that he has more kamanakan than Sutan Y, our mamak ? As a good mamak, he should be able to take care of his kamanakan-we at least can do 50". If no settIement can be reached in friendship, such quarrels of ten lead to permanent group splits. 17 The harato pusako are divided, dibagi, and two new kaum are formed: The former common harato pusako ceases to be common; the property which the former jurai held as ganggam bauntuek will now form the common property which is harato pusako turun temurun in the newly formed kaum. This property then is again distributed as ganggam bauntuek among the jurai of the new kaum: Here we have arrived at the beginning of our fictive kaum history.18

The ganggam bauntuek is distributed to the women and their jurai in continuity. At the moment of the distribution, it is vested in the individual women. If the original ganggam bauntuek holder dies, the ganggam bauntuek is inherited by her heirs, who together hold the ganggam bauntuek in common. The ganggam bauntuek as such is not divided; in adat, it cannot be divided. But the various property objects to which the ganggam bauntuek pertains, are factually distributed between the heirs in a process of musyawarah. On the basis of the rule that all heirs are likewise ganggam bauntuek holders, the factual distribution

is subject to principles of law and morality. Sex-specific property objects will usually be given to the persons of the respective sex. The house(s) are left to the female heirs, for the males have to stay in their wives' house anyway. Male heirs are "expected" to leave most agricultural property to the use of their sisters and kamanakan, as is "proper" for a good mamak. But males definitely have a right to the ganggam bauntuek property as weIl as their female co-heirs, and it is quite customary that they leave the exploitation of their part of the harato pusako to their sisters or kamanakan on the basis of share-cropping, the most frequent form of which is the "mampaduokan-manya - duoi"-"to make it into two parts". Others may work it together with their wives and children for their own use; yet others will try to get their sisters' and kemanakan' consent to give their part to their children for the lifetime of the children in a formal gift-ceremony. Which concrete course is taken, depends on the outcome of the musyawarah and the "condisi dan situasi", the concrete circumstances in which it takes place. Usually, most of the agricultural property is distributed among the female ganggam bauntuek heirs. If the fields are more or less of the same value, each female heir may be given a certain nuJ11ber of fields to work. If the fields have different agricultural values or if they are spatially unevenly located, one will usually agree upon a system of rotational use, according to which each heir works the good and the bad fields alternatively for a period of time (bagilieh, balega).19 The period gene rally used is the "sawah-year"~ the tahun kesawahan, which allows the possessor to have one rice harvest and use the land there- af ter for other crops like chili-peppers or vegetables until the next rice-planting season starts.

The inheritance rules are the same as those which have already been briefly outlined for the inheritance of harato pancaharian: Primarily, inheritance is in the ganggam bauntuek holder's jurai and by the oldest generation: If a female ganggam bauntuek holder dies, the ganggam bauntuek will be inherited by her children, male and female. For predeceased female children, their descendants will inherit according to the principle of representation. The heirs within the jurai are the "close heirs", the warih nan dakek (see Willinck 1909: 776). If the ganggam bauntuek holder has no descendants her jurai is extinct, punah or putus. In this case, the property is inherited by the "distant heirs", the

PROPERTY IN SOCIAL CONTINUITY

warih nan jaueh (Willinck 1909: 779). The closest distant heirs ate those kaum members who are the descendants of the common apical an- cestresson the next higher generation level, i.e. of the ganggam bauntuek holder's mother. If this jurai should be extinct, too, the propert will be inherited by the jura i formed by the descendants of the ganggam bauntuek holder's mother's mother etc. The same principle also applies if the whole kaum or buah gadang should be extinct. Inter-group inherit ance is based upon genealogical closeness measured in common apical ancestresses in the matriline. As has already been mentioned the genealogical distance is expressed through the warih-categories of sajari, satampo, saeto, and sadapo (see p. 99).

These principles of ganggam bauntuek distribution and of inter-jurai inheritance function within and between the groups of blood relatives, kamanakan batali darah. In the case of a stratified kaum or buah gadang the harato pusako will therefore not be distributed between all kaum members. Only the kamanakan batali darah have a right to share in the distribution (pambahagian). The other kamanakan, who form part of the kaum/buah gadang in adat, are only entitled to a gift of property, a pambarian: The blood relatives will decide how much of the buah gadang'~ property is to be given to the kamanakan dibawa pusek or dibawa lutuik. The property given remains subject to the ultimate authority of the kamanakan batali darah, and the recipients of the pambarian are of ten not allowed to pawn the property. Within their group, however, this property is treated like harato pusako turun temurun and thUs is subject to the same rules of distribution and inheritance described above. If the blood relatives in the kaum are extinct, their harato pusako may be transmitted to the kamanakan who are the descendants of strangers or slaves. This is, however, no automatic process in adat but requires the consent of the distant heirs of the same matrilineal des cent in the other related kaum. The "punah-situation", where a kaum is extinct, however, is generally resolved before the kaum is completely extinct, i.e. during the lifetime and at the initiative of the last kaum members who foresee that there will be no more descendants in the female line. They can try to adopt one or more new kamanakan with the aim that they continue the group and its harato pusako. The principles concerning adoption have already been outlined in Chapter 2; a property history concerning an adoption will be presented in the following chapter (p. 253 ff.). The last kaum mem-

159 bers are usually also granted a larger degree of autonomy to dispose of their harato pusako by pawning, sale, or -if the last kaum member is a man -by gift to their children. According to "old" adat, such transactions always required the consent of the distant heirs in the genealogically related groups. In contemporary Minangkabau, the last group members are more or less free to dispose of their group's harato pusako if there are no more pers ons who are saharato, i.e., if the whole buah gadang is extinct. If only a kaum is extinct, the consent of the other kaum in the buah gadang is still necessary. In the following chapter two property histories will be presented in which this difference is quite explicitly stated (p. 239 ff. and 253 ff.).

c. Allocation The ganggam bauntuek is not the only relationship which legitimates the use and the exploitation of the harato pusako. Besides, there are also temporary allocations of property objects to group members. In fact, the actual distribution of the property objects which are held by the ganggam bauntuek holder(s) is of ten already prestructured by temporary allocations which have occured at a time when the ganggam bauntuek holder(s) had not yet inherited the ganggam bauntuek. Allocations usually occur when group members marry. The harato pusako allotted may be property which is still held in common by the whole kaum and which is not yet distributed as ganggam bauntuek; it mayalso be property which already has been distributed in this way. To understand the principles of allocation, we must again take into account the development of the group: The ganggam bauntuek is given to adult women at the fictive point in our kaum history. The woman has received several sawah fields, a piece of land to build a new house, and some garden land. She will work the land, helped by her children and by her husband. A great deal of the agricultural work is carried out with the help of the other jurai members, and in the main stages of the agricultural work, such as planting, harvesting and threshing, the kaum members and also the bako and the buek-neighbours will help on the basis of the principles of tolong menolong, the ideal of mutual help. In former times, the decisions about the timing of planting and harvesting of rice were taken by higher authorities, the kaum council, the neighbourhood council or even by the nagari government, but in contemporary CKL the decisions are taken within the ganggam bauntuek holding group. The children will help their mother and father, both on the fields of their mother and on the fields

IN SOCIAL CONTINUI1Y

of their bako.

A change occurs, when the ganggam bauntuek holder's children grow older. A daughter marries, and her husband moves in to live with her in the biZik in the rumah gadang. If the family does not live in a rumah gadang any more, the girl will be given a plot of land to build a house for herself, her husband, and her children. There will be no great change in the activities of the young coupIe. The young wife will continue to work on her mother's fields, and her husband will also help her, and continue to help his mother and sisters on their fields. But at marriage or af ter some time, when the young couple get children, the wife is given a part of the harato pusako, to which her mother holds the ganggam bauntuek, or which is still unused common harato pusako of the kaum. This property is for the couple's exclusive use and consump- tion in their pariuk, their "ricepot". The married daughter's younger sisters, who are still unmarried will continue to help their mother, and they will now also help their older sister. When the next sister marries, she in turn is given some of the harato pusako for her use. The property gi ven in this way is the dapatan, the "property (she has) received". The harato (pusako) dapatan, however, remain subject to the authority of the ganggam bauntuek holder, and the normal Minangkabau grandmother does not easily lose control. Major problems concerning the jurai's property will, of course, be discussed with all adult group members, and within the group, the mamak jurai will have an important word to say. But note that the jurai in question here is the group of which the ganggam bauntuek-holder is the apical ancestress. The mamak of the ganggam bauntuek holding jurai will be the original ganggam bauntuek holder's son or grandson. The eldest woman in this group is generally on a higher generation level than the mamak, she is his mother, and this explains to a large extent the dominant position of the senior women in Minangkabau social organization (see Chapter 2: 83 f.). In this way we have also to understand Wi11 inck 's statement (1909: 391 f.) "that in the Minangkabau family circle the oldest common ancestress, if still alive, stood actually above the mamak. She was in each case, where family matters in the sabuah paruik or jurai had to be decided, the highest authority". For the ganggam bauntuek holder's ''mamak'', her mother's brother or her brother, do not, in this fictive situation of the kaum's history, belong to her ganggam bauntuek holding group. Theyexercise authority only in those affairs which have to be decided by the whole kaum, matters which concern the relationships between the ganggam baun-

OF PROPERTY RELATIONSHIPS 161

tuek holding group with other such groups or with individuals or groups that do not belong to the kaum at all. When the male children of the ganggam bauntuek holder marry, they mayalso be given some of their kaum's or ganggam bauntuek holding group's harato pusako for the exclusive use and exploitation of their conjugal family. This property is cal led (harato pusako) pambaoan, the "brought property". The decision of whether the young bridegroom is to be given harato pambaoan must be taken in a meeting of the kaum council, for it involves inter-kaum relations, the marriage and a temporary factual alienation of the property. The following considerations will play a role: '~ow much property can his own kaum spare? Will the young couple have enough property for themselves? How rich is the bride's family? How much should one give in order to demonstrate to the bride's kaum that they made an excellent choice in their urang sumando? How much can one dare to give as pambaoan, as there is always the danger that the man's wife and children will try to 'sneak away' with this property". The relationships between one' s own and the girl' s kaum and relatives will also play a role. If the young man, for instance, had puZang ka anak mamakJ .married his MBD, the mamak would be inclined to favour the giving of pusako pambaoan (onmarriage as strategy in property politics, see Chapter 5: 295 ff.). The allocationsof dapatan and pambaoan are temporary. If the girl/ woman to whom harato dapatan has been given is divorced, she will keep the property for herself and her children. llJhen she dies, the property will revert to the ganggam bauntuek holder and can be allotted anew. According to the adat rule for the division of marital property, the "dapatan tingga"-"the dapatan remain" with the kaum/jurai of the wife. According to the same rule the "harato pambaoan kembaZi"-"it returns" to the group which had given it; to the kaum, if the pambaoan had been taken from the yet undistributed harato; to the jurai, if the property has been taken of the stock on which the jurai already held the ganggam bauntuek. When the property "returns" it becomes "regular" harato pusako again and will be redistributed. The kaum/jurai of the deceased husband may, however, decide to leave this property to his children, in order to show their good intentions to their anak pisang. Such a decision will be facilitated, if the children. e.g. one of the man's sons, has puZang ka bako, has married a kamanakan of his father. In this case, there is no danger of the property getting "lost". Such a decision requires a musYOJ.JJarah of the whole kaum and a formal transfer of the property to

PROPERTY IN SOCIAL CONfINUITY

the anak pisang in the fonns known to adat (see below p. 176 ff.).

When the original ganggam bauntuek holder dies, her heirs thus generally al ready hold dapatan and pambaoan relationships to the property for which they now inherit the ganggam bauntuek. They may have worked this property for twenty years, and it will not always be easy to come to a re arrangement of the property distribution af ter such a long time. Such a re arrangement willoften be demanded, for the older sisters (oldest daughters of the ganggam bauntuek holder) and their descendants will generally have more property at their disposal than the younger ones: They may have been given dapatan already before their youngest sister was bom, and her mother could not know yet the number of jurai members for which the harato pusako must suffice. In general, the daughters are given as much property as they need, and the oldest daughters, as the first ones who need property, will usually be given a lot, on the basis that they, in the later stages of the jurai's development, will cede some of that property to their younger sisters in case they should need it. Such rearrangements require the mupakat of all the ganggam bauntuek holders, thus also the consent of the one who holds too much in comparison with her sisters. As the oldest sister af ter the mother's death, will be the oldest and senior woman of the group and as such be the one nan pagang harato, ''who keeps the property", it will generally be very difficult to enforce a new property arrangement against her wishes. Though adat treats siblings as equals in property affairs, the practice willoften lead to the result that the oldest sisters, and later, the oldest jurai in the kaum, and the oldest kaum within the buah gadang, control most of the harato pusako. Combined with the factor of (uneven) demographic development, this may lead to a quite uneven distribution of the harato pusako even within the ganggam bauntuek holding group. This unequal distribution will later be "frozen in" when the ganggam bauntuek holding group develops into a kaum and when,later still, this kaum splits again.

d. The Pusako Relationship in Tenns of Rights The individual kaum members' legitimations to the use and the exploitation of the harato pusako which are their common pusako turun temurun are expressed in tenns of ganggam bauntuek, dapatan, and pambaoan. The relationship of the kaum as such to its pusako is not defined with a special concept. The relationship is one of ''having'' the property as

turun temurun in one's group. The relationship is only specified in a dual way by stating that "mcunak bahak-kcunanakan bcuniZiek". This might be preliminarily translated as "the mcunak has the right of control-the kcunanakan have the possession". This specification is further illustrated by the adat saying:

hak bcuniliek-haràto bapunyo hak nan bancorrpu-harato nan bamiZiek hak nan tagantuang-miliek nan takabiah arati miliek: nan disauaki

This saying is difficult to translate. Westenenk gave the following translation (1918a: 15): hak bcuniliek

harato bapunyo

hak nan bancorrpu harato nan bamiliek hak tagantuang

miliek takabiah arati miliek: nan disauaki

the common right of disposal is transformed into possession one has limited ownership of individual property objects hak are the rights held in common the harato are possessed individually the hak is ''hanging'' (not specifically assigned) the milik is personal possession milik means: what is derived (from the hak).

A similar translation (into Indonesian) is given by a leading Mînangkabau expert, I.H. Dt. Rajo Panghulu (1973: 197): hak adalah berscuna the hak (right) one has together harta adalah milik the harta are possessions hak adalah bergantung the hak is hanging milik adalah bermasing the milik one (each) has for oneself

These sayings are especially difficult to trans late because two translations are involved: One translation is of the adat conceptual system into the legal concepts of Islamic law, and the other is of these into one's own language. However little role this saying plays in the courts' judgements and in normal conceptual usage in the nagari, it is interesting in 50 far as it attempts to express the group's relationship to the harato pusako in terms of rights. I shall not try to give another translation of the saying (which was probably created by Islamic adat experts in the last century) but only state two points

PROPERIT IN SOCIAL CONfINUIIT

which I think can be inferred from i t :

1. One point is that the pusako relationship has two aspects: the one of socio-poli tical control, the hak, which is "hanging", abstract, not reified. This hak is of the whole group, but is vested in the mamak, the group head. The other aspect is the material property, the miZik, which is possessed and distributed among the kamanakan, the individual kaum members. Hak and miZik indicate two different aspects, the communal and the individualized, or the man-thing relation. The mamak is bahak over all of his kamanakan' ha~ato which they hold in the state of miZik. The mamak, as group member, will generally also have some miZik, some property objects for his own use. But th at does not make him "bahak miZik" on these property objects. In Minangkabau adat, hak and miZik cannot be combined in one person or group. The concept hak miZik, which in contemporary Indonesia is used as an equivalent for the Dutch eigendom (ownership) was unknown in adat.
2. The other point is that these abstract characterisations of hak and miZik do not indicate a legitimation for the use and exploitation of the property object. The hak does not entitle the mamak to use and exploit the property over which he has the hak. The miZik is the description of a possessory relationship, but not its legitimation. This adat-meaning of hak and miZik is important to note, as in the more recent conceptual usage in Minangkabau, the concept hak miZik is increasingly used to express property relationships in adat. This development will be analysed in Chapter 6.
3. The ReZationships to the Pusako Kebes~an

a. The Ti tIes

The most important (and only) part of immaterial pusako to which Minangkabau, and the men only, have an individualized relationship are the titles, gaZa. Each grown-up Minangkabau man used to wear a title in former times. Minangkabau adat says: "ketek banamo-gadang bagaZa" - 'when one is small, one has a name, when one is grown up, one wears a gaZa". There are some regional variations as to how far the gaZa-wearing is still practiced. Mansveld reported already a hundred years ago, that the custom was most strictly adhered to in the district of Agam, whereas, e.g. in 50 Koto, only the adat functionaries still used and were cal led by their titles. This situation does not seem to have changed

OF PROPERTY RELATIONSHIPS 165

since then: In Agam, and also specifically in CKL, each adult man wears a title, with the exception of Islamic functionaries and those persons who hold a post in the state administration. The gala are mostly of Hindu origin, meaning King (Rajo), King of Kings (Maharajo Dirajo), Crown (Mangkuto, Mahkota), Military Commander (Palimo, Pang lima), Sultan (Sutan), the Great One (Bas a) etc. In CKL, as in most nagari in Agam, most titles wom by the individuals consist of two components like Rajo Basa, Palimo Putih, Sutan Nagari etc. Most of the titles wom in Minangkabau are pusako. 20 The most important titles, the office-titles of the adat functionaries with the additional title Datuek, the gala sako, are the pusako of the buah gadang. The ti tIes which are not attached to adat offices, partly are the property of the suku (pusako), partly the common property of all suku. 21 These titles are usually cal led gala pusako. The ti tIes are conferred upon the men af ter they have married. With marriage, the Minangkabau man is "gadang", great, grown-up. The ti tle-giving occurs in the course of a ceremony, such as a panghulu installation or a marriage ceremony. At some stage of the ceremony, one of the elders functioning as "host" reads out the new titles to the public: that X will wear from now on the ti tIe Rajo Sutan, that Y will now wear the title Payuang Arneh etc. In the course of his lifetime, a Minangkabau man may wea~ several titles. He will get a title in any case at the time of his marriage. If at a later time he should assume an adat office, he will receive a new title, or he may be given an honorific gala when he is older. 22

b. The Giving of the Gala Pusako When the title of the young man is read out (dihimbau) to the public in the ceremony it had already been determined which title he should receive. The principles of the title-selection can best be compared with the allocation of material property, with the essential difference that titles can be duplicated whereas material property cannot. Titles can be duplicated in that two or more living group members can wear the same title which consists of two components (e.g. Sutan Marajo) or through the multiple use of the single components.For example, one group member may have the title Rajo Imbang, another Sutan Rajo Imbang, and yet another Rajo Sutan. The mamak of the young man has the task of finding the title. That means that he must organize a kaum meeting in which the question is discussed and a unanimous decision is reached. The kaum can

PROPERTI IN SOCIAL CONTlNUITI

take one of the title-stock of their suku, and they can also use one of the common ti tles. In CKL i t' has become a custom, that the yOlmg man receives one title-component from his kaum, and the other from his father's kaum. If the man's father wants to confer a title (component) upon his son, there has to be a musyawarah in his kaum (the son's bako) in which it is decided which of their gala-stock will be given to the anak pisang. In the last resort, the complete title thus has to be chosen by the mamak of the man's kaum and by the mamak of his bako (not necessarily by the father hirnself) .23 If persons are asked from whom they have got their titles, they will usually state that they gat it (dapek) from their mamak and, as in CKL, from their father, or that the title has been given (dikasih) by them. Such statements have been interpreted in the sense of "title-inheritance" from mamak to kamanakan, or from father to son. It is therefore quite important that the rnechanisrns of title-giving are weIl understood. In the statements "I got rny ti tle from rny mam:J.k " or "from rny bapak", mamak and bapak indicate the collectivities represented by the mamak and the father. It does not mean, that the mamak or the father selected the title by thernselves. Nor does it mean, that the nephew/son, 'who gat his ti tle from his mamak/bapak", wears the same ti tle or one of the title components which his mamak or father wears. This may happen, but is rather unusual, and of course a father has several children, and a mamak several kamanakan (and the kamanakan several mamak) who norrnally are not gi ven exactly the same ti tles. 24 As far as the ga la-gi ving "from father to son" in CKL is concerned, it rust further be mentioned, that the gala component is given by the bako to its anak pisang. Once the anak pisang has died, his gala "reverts" to the bako again. It may not be used by the kaum of the man, as it is the pusako of his bako.

c. The Giving of the Gala Sako

The principles for the giving of the sako, the office title, are somewhat different. The office is the pusako turun temurun of the buah gadang (blood relatives) and it cannot be duplicated. The title is attached to the office, and will automatically be given to the new panghulu in the course of the panghulu installation. The basic principles of the succession to the panghulu office have already been described (Chapter 2: 86 ff.). Like all pusako, the sako is "turun temurun from the MME to the MB, and from the MB to the ZS". But this does not necessarily mean that the successor to the panghulu

will always be his sister's son. At least in the nagari following the adat Bodi-Caniago, the buah gadang members are quite free to select the successor, and the inheritance-principle is further mediated through the institution of the gadang baZega. Economic considerations will also play a role. As it is quite expensive to install a panghuZu, it may be more economical for the buah gadang to have a grandnephew instalIed than a brother or nephew, thus lengthening the time between installations. 25 Office ti tIes in principle may not be given to other persons than buah gadang members. Only under special circumstances may a panghuZu gaZa be given to a son: If the buah gadang of the father (the panghuZu) is extinct or if there are no suitable male successors for the panghuZu, his buah gadang can agree in a musyawarah that their anak pisang should be allowed to wear his father's title. This has happened once in CKL. When Dt. Mangiang had died his son was allowed to wear his title. Though the ti tle was the sako of his father '5 buah gadang, the son did not (of course) assume the office of panghuZu in his father's buah gadang, and, once he had died, the gaZa Dt. Mangiang could not be wom by any of the 26 sons's buah gadang members.

I I I. TRANSFERS OF PROPERTY RELATIONSHIPS IN MlNANGKABAU ADAT

1. IntrodWJtory Note It is the basic principle of the adat pusako, that pusako property is turun temurun, th at it continually descends in the group of persons for whom it is common heritage. To achieve this goal, the property must be kept in the group. The living generation may use and exploit the pusako property, but must guard its basic resources for the future generations just as the ancestors have guarded it for the present generation. An adat saying states: "Aienyo buZieh diminWTI-buahnyo buZieh dimakan - batangnyo tatap tingga"-"lts water may be drunk, its fruit may be eaten, but its stem remains and remains". TransfeI;.s which would alienate the harato pusako from the group in which it is turun temurun are severely restricted by adat and permanent alienations are prohibited in principle. But the ideology of the adat pusako does not only affect the harato pusako. It is the moral duty of each Minangkabau, the men in particular, to add to their group's pusako. Whatever they eam as pancaharian is destined to become harato pusako. Pancaharian transfers which threaten to alienate this harato pusako in spe from the holder's

PROPERTY IN SOCIAL CONflNUITY

group against the wishes of the group were not allowed in adat. The pusako ideology is reflected in the legal adat TUles that pertain to temporary and permanent property transfers. These TUles conceptualize the various forms of transfer~ state the conditions under which they are valid and wh at the consequences of such transfers are. More generally, the ideology is firmly embedded in adat morality. As such, it constitutes an important factor influencing the holders' decisions of whether or not a transfer, though valid in law, should be carried out at all. In the following part of this chapter, I shall describe the adat concerning the possible transactions. In the course of history, there has been a considerable change, both in the adat conceptions pertaining to transfers and in the way the Minangkabau made use of these transfers. The most important changes will briefly be mentioned here; in the following two chapters the use made of the property transfers and the development of the adat conceptions will be described and analyzed in detail.

2. Jua Bali-Selling and Buying The concept jua bali (Ind.: jual beli) corresponds closely to the western concept of sale. Jua is the transfer aspect, bali the buying aspect. Jua bali is the exchange of property against money or gold. Once the exchange has occurred, no party can reclaim its original property. As the adat saying states: "Jua salamaik"-"selling is safe". Jua bali is conceived of as a synchronic property exchange (which, however, can be used to effect diachronic property transfers, see Chapter 5: 267 ff.). In adat, no basic legal distinction is made between immovable and movable property objects. 27 "Land is sold in the same way as a writing desk" (PN Bukit Tinggi in case 16 of 1972). This is a trait of all adat systems in Indonesia, which has even been kept under the influence of Dutch law (which makes that distinction), and which has also been incorporated into the Basic Agrarian Law (Gautama and Harsono 1972: 47 f.). With respect to the holders' autonomy to sell property objects, an important distinction was made according to the status of the objects in terms of harato pancaharian and harato pusako. Harato pusako in principle cannot be validly alienated at all. Minangkabau adat says: "Jua indak dimakan bali-sando indak dimakan gadai" - "if to be sold, it may not be eaten up by the buying, if to be pawned, it may not be eaten up by the pawning". Only two exceptions seem to have been made from this TUle:

OF PROPERTY RELATIONSHIPS 169

1. Pusako land could be sold to nagari co-citizens if it was to be used for house sites, and if all buah gadang members and their panghuZu agreed to the transfer. It is not known whether this is a recent development. Duursma reports that it could be done "since the olden times" if the land was not rice-Iand (1934: 163). In CKL, some house sites had been sold during the last 100 years, and their sale was regarded as being quite in accordance with adat. 28
2. When the urang saharato sapusako are extinct, the last living members
29 of the buah gadang are usually allowed to sell the harato pusako to nagari co-citizens. Such sales required the consent of the warih nan sajari, the relatives of one blood in the genealogically related buah gadang. In contemporary Minangkabau, the buah gadang members are usually free to dispose of their harato pusako without this consent. However, if only a kaum is extinct, the consent of the other kaum within the buah gadang must still be obtained (see the story of the "Extinct Buah Gadang", (Chapter 5: 253 ff.).

Agricultural products produced on harato pusako, the "bungo pusako", "the fruit of the pusako", are treated as harato pusako, with the exception that they could be sold. The goods or money received in return have the status of harato pusako. Harato pancaharian in principle could be sold. Trading activities ne- cessitated some circulation of goods, and most objects created by economic production (weaving, gold-and silver works, blacksmithing etc.) were harato pancaharian. The property received in return had the status of harato pancaharian. Diachronic transfers, however, which would alienate the holder's pancaharian property and harato pusako in spe of his kamanakan we re subject to severe restrictions (see below p. 180).

3. Pagang Gadai-The Adat of pawning
a. The Pagang Gadai Transaction The pagang gadai trans act ion has been translated as "pawning" or "pledging" by English authors and as "verpanding" by Dutch authors. 30 It involves a temporary transfer of the right to use and exploit land in exchange for a sum of money or gold. 31 Pagang indicates the taking, gadai the giving of the land. I shall speak of the "pawner" and the "pawnee", meaning the panggadai (giver of the land) and the pamagang (giver of the money). Most land having the status of pusako, pawnings usually involve pusako property. Pawnings of harato pusako were subject to two sets of restrictions: They may only occur in specific situations and additionally need the

PROPERTY IN SOCIAL CONfINUITY

consent of all (adult) kaum (group) members.

1. Pawning is allowed in four "classic" situations which are mentioned in any publication on Minangkabau adat and which are immediately quoted in each interview about pusako. Harato pusako may be pawned if the kaum as a whole needs money for:
   

   still without hus-

i.e.,
~mah gadang katirisan

i.e.,
burial ceremonies.

Besides these four cases, some others have been mentioned in the literature, such as to provide the costs for the pilgrimage (naiek haji) of a kaum member or the payment of common debts (utang di tangah medan) (Résumé 1872: 19; Joustra 1923: 118; Guyt 1936: 59).32 In our interviews in CKL, people usually mentioned the classical four cases. Most interviewees emphatically denied, that harato pusako could be pawned in order to provide the costs of the pilgrimage. But as the pawning register of CKL reveals, such transactions were, however, not uncommon 100 years ago. In lengthier discussions of the problem most people expressed a rather liberal opinion (which seems to be shared in contemporary Minangkabau in generaI), namely that harato pusako may be pawned in any case where money for common needs is required. In CKL pusako was frequently pawned in order to secure the necessary money for court-suits over harato pusako (cf. Chapter 5: 228 ff.).

2. The pawning of harato pusako is done by the mamak, af ter he has secured the sakato or mupakat of his kaum members. In all pawning transactions, the mamak (of the panggadai party, the pawner) represents his group in inter-group relationships, and.he also does so in the cases of property relationships between groups. As he is responsibIe for the organization of the ceremonies for which the money is required, it is he who has to secure the money in the case that the kaum has not enough funds to finance the ceremonies. The initiative for the pawning will

171 therefore of ten be taken by him. To make the pawning valid, he must, however, have the consent of his ahZi warih, his group members, in principle of all adult members of his kaum. 33 The initiative mayalso come from an individualor from a ganggam bauntuek holding jurai. The ganggam bauntuek rights,however, do not entitle its holders to pawn the harato pusako. The consent of the kaum's other jurai and its mamak is required, and the mamak must act as the actual pawner's representative. Slightly different is the case, where a jurai holds separate harato pusako turun temurun. Here the jurai is entitled to pawn the harato in their own right without the consent of the other jurai, but the mamak of the kaum must act as representative in the pawning ceremony (see also Sarolea 1920: 120 ff.).

The transaction is usually initiated by those who need the money. They will approach someone who might be willing to lend the money and take the harato in exchange until the money can be repaid. According to adat, the persons approached should be persons closely related, possibly in one's buah gadang or one's suku. If the pers on or group approached is willing, and if the pawners have secured the unanimous decision of their ahZi warih, a ceremony must be held in which the transaction is publicly carried out. This ceremony must be held in the house of the pawnee (the pamagang), for the money (uang gadaian) must be "fetched" (dijemput). If the pawnee is a woman, the ceremony will be held in her (mother's) house. For men, however, the "house of the pamagang" can mean either of two houses: the house of his children, i.e. the house of his wife, or the house of his kamanakan, i.e. the house of his mother. llJhere the money is fetched depends upon for whom the pawnee intends "the money" and the right to use and exploit the pawned property. If the money is fetched in the house of the kamanakan, it means that the transaction has been made for the immediate or future benefit of the kamanakan. If it has occurred in the house of the children, it means that the pawned property is intended for the children. 34 The ceremony consists of a communal meal, in which the transaction is publicly confirmed. In addition to the parties, their mamak and the ahZi warih, the panghuZu of the parties, and in some nagari, also other adat,functionaries, have to participate as weIl as the holders of the plots adjacent to the one being pawned (cf. Guyt 1936: 93 ff.). This participation of the adat functionaries is a classical case of "preventive law application" (preventieve rechtszorg ) as described by the Dutch scholars of

PROPERTY IN SOCIAL CONrINUITY

adat law (Holleman 1920, Logemann 1924, Van Vollenhoven 1931). Through the presence of the adat functionaries the transaction is validated in adat (Ter Haar 1948: 106). In 1915, the Dutch introduced a regulation (S. 1915: 98 jo 687, art. 14, 15), which permitted the making and the registration of apagang gadai contract before the Dutch administrative officials (Guyt 1936: 44). But in some districts, the administrative officials had already informal- ly introduced the rule that the trans ac ti ons should be confirmed in the presence of the Tuangku Laras, the parties, their panghuZu, and one of the ahZi warih, possibly a young female kaum member. In CKL, this was already practiced in 1873, as the pawning register of Candung shows. 35 The practice of making a gadai-deed, a surat gadai, has in most nagari persisted, and nowadays a copy of the surat gadai is of ten given to the archive of the WaZi Nagari. Not all transactions are reported as many villagers do not wish to inform the WaZi Nagari and give greater publicity to the transaction than is needed. But as can be inferred from interviews and regular court practice, the written document is used as evidence only, not as an element determining the validity of the transaction. The period for which the property is pawned can be stipulated by the parties. If no such date is set, the property may be redeemed af ter a minimal period of two years (duo tahun katigo). Af ter this time, the pawnee (pamagang) has to accept the redemption money (uang tabusan) if it is offered to him.

b. Tebusan-The Termination of the Pagang Gadai Relationship The pagang gadai relationship is terminated by the redemption of the property, which is ditabuih or ditahuri by the pawner (panggadai). If the property is not redeemed af ter a short time the relationship should be disabuik-sabuik, ''mentioned again and again" (cf. LH. Dt. Rajo Panghulu 1974: 54): The fact that the property is pawned and is not pusako of the pawnee, should be declared each year to the pawnee and the four witnesses, the holders of the adjacent plots. This was not done in CKL, however. No matter how long the pawnee keeps and works the property, the right to redeem it can never be abrogated and is not subject to limitation. Minangkabau adat says: "SeZama peredaran matahari, buZan dan bin tang- saZama awan putih-saZama gagak hitam-saZama aie hiZir"-"(the pusako remains) as long as sun, moon, and stars move, as long as clouds

173 are white and crows are black, as long as water flows downhill" (Wilken 1926: 417; cf. Van Vollenhoven 1918; Dt. Maruhum Batuah and Bagindo Tanameh 1954: 55). It frequently happens that redemption is demanded af ter several generations. This regularly leads to conflicts, in particular, if the original transaction cannot be proven any more (see already Wilken (1888) 1926: 417 f. Such a case will be described in Chapter 5: 249 ff.). To redeem,menebusi, means, that the property is fetched back to the original holder in exchange for the pawning money. Redemption in this sense is in the name of the ka:um: as pusako tuY'Un temurun it can be distributed and allocated again.

c. Memperda lami-To "Deepen" the PaWning If the kaum of the pawner is not able to repay the redemption money, there is another mechanism to keep the pagang gadai relationship a going affair. This is called memperdalami gadai, to "deepen" the pawning. It means that the pawner, the mamak who pawned the property or his successor, approaches the pawnee with the demand that more money should be added to the original sum. 36 The deepening of the gadai also involves a ceremony with witnesses, in order to demonstrate who the real pusako holder is. If the pawning has been deepened several times, the redemption sum may have reached such a value that it is Wleconomical for the pawners to redeem their harato pusako. In this way the pawning may come close to a de-facto final alienation. But the right to redeem the property cannot be abrogated, and what is "economical" may significantly change in the course of development. Cases in which the redemption is demanded af ter 100 years, are not rare in Minangkabau, though they usually result in conflicts and court cases.
d. Jual Gadai-The "Pawning-Sale" In the first half of this century, the concept of jual gadai seems to have been employed quite of ten. In contracts making use of the concept it was either stipulated that the contract was a "saIe" (jual) for which, however, a right of redemption was agreed upon, or that it was a pawning (gadai) which was later followed by a sale (cf. Van Vollenhoven 1918: 204 f., 266; Guyt 1936: 37 ff.; Ter Haar 1934c: 145). The Dutch courts of ten interpreted such transactions as sale in the sense of western law. Ter Haar has pointed out that such translation/interpretation was wrong, and advocated that it should not be used by the colonial courts (1934c: 145; also Van Vollenhoven 1918: 627, 1933: 242, 244). He pointed

PROPERTI IN SOCIAL CONTINUITI

out that the first mode probably was developed-by the Minangkabau as weIl as by other Indonesians-in order to circumvent the riba-prohibition of Islamic law: The riba-prohibition forbids Muslims to draw profit from pawned property (Juynboll 1903: 285 ff., see below p. 198). The pawnee in a pagang gadai contract is in a position to draw pro fits (for example, from his working the land) from a property object not belonging to him which had been given as security for a debt. Devout Muslims therefore preferred to clothe their agreement in the form of a sale, which would make the property object the property of the pawnee, and, in accordance with adat, to make a provision for redemption. Jual gadai cases therefore should be regarded as a no rma I means of pawning with no time-limit stipulated (Ter Haar 1934c: 145) or a "deepened gadai" (Guyt 1936: 39 f.)37 as the right to redeem the pusako property cannot be abrogated in adat: "jua indak dimakan bali-sando indak dimakan gadai".

e. Kisah Gadai-The Transfer of the Gadai

The pagang gadai relationship between the original pawner and pawnee can also be ended by the "transfer of the gadai", mangisah or pindah gadai. The initiative for such a transfer can come from both parties.

1. The pawner (panggadai) may be of the opinion that the pawnee has kept his property long enough. The relationship should be terminated, otherwise the pawnee might claim that actually the property is his harato pusako, hoping that the original transaction cannot be easily proven any more. If the pawner does not have enough money to redeem the property by him-or herself, he or she can decide to kisah gadai, to transfer the gadai to another person who is willing to take over the property. If A has pawned rice-fields to B for 3 rupiah he can transfer the gadai to
   C. C will pay 3 rupiah to A, with which A pays back the original pawning sum to B. This transaction is often used to effect a "deepening" of the gadai, e.g.,if Ademands 5 rupiah from C, repays 3 to B, and keeps 2 for himself.
2. The initiative mayalso come from the pawnee (pamagang). If he does not need the rice-field anymore and wants his money back, he will offer the fields to A for redemption. If this offer is not accepted as A has not enough money to redeem the saJ.Vah, B himself can initiate the t,rans- fer of the gadai to C. In this case he always should offer the fields to A first. If A feels by-passed by the transfer of the gadai, or some of A's group members are not content with it,they hav~, of course,

PROPERTY RELATIONSHIPS 175

always the right to redeem the property from C, too. If the original pawner, the kaum A through its mamak kepaZa waris, has not sufficient money to redeem (menebusi), one of the kaum members may redeem the fields. This is called menebusi only if the redemption is in the name of the kaum. A "good" family member should, of course, redeem the property in the name of the whole group which formerly held it as harato pusako turun temurun. But he cannot be prevented from redeeming it with his or her own money (pancaharian) for him-or herself, if the whole group is unwilling to do 50. Such a redemption is also called "kisah gadai" and follows the kisah gadai rul es.

f. The Consequences of the Pawning Transactions for Diachronie Transfers of Property Relationships The types of pagang gadai transactions, and the conditions under which they are allowed to take place in adat, have been extensively described in the Dutch and Indonesian literature. Little attention has been given to the further consequences which these transactions, the transfer of the gadai in particular, have for the pawner and the pawnee. But these consequences are of fundament al importanee for the understanding of the contemporary Minangkabau system of property relationships: If apagang gadai transaction has occurred,the property object keeps the status of harato pusako for the pawner. The right to redeem or to kisah gadai is, as part of the pusako, inherited in the group which holds the property as turun temurun. 38 For the pawnee, the "land is harato pancaharian", if the money with which he or she pawned it was harato pancaharian. In colloquial language, most pawnees will point to the property they have pawned and will say "This is my pancaharian". Thus it seems that the same property object has the status of harato pusako for one party and of harato pancaharian for the other. If the question is discussed more intensively, however, it becomes apparent th at the Zand is harato pusako of the pawner,but not the pancaharian of the pawnee. Harato pancaharian is only the money which has been invested in the land, and the right to use and exploit the land which is based upon this investment. On this point, there were no differences in the answers of the various interviewees, judges, adat experts, or common villagers. This pancaharian follows the rules which govern the diachronie transfer of harato pancaharian: the rights to use the land are consequently disposable and inheritable as harato pancaharian, but they can always be nullified by the redemption of the original pawner. This leads

PROPERTI IN SCCIAL CONfINUITI

to particular difficulties if one member of the original pawner's kaum has transferred the gadai to him-or herself. Although he is a member of the pusako holding group, the pawnee's right, which entitles him to the use of the property, has pancaharian character. The other group members for whom the land also is harato pusako turun temurun always retain the right to redeem the property. They can secure a share, corresponding to the jurai-distribution in the kaum, by paying a respective part of the redemption sum to the group member who had transferred the pawning to himself, or to his descendants if some generations should have passed since the first transfer of the gadai. 39 It must further be noted that once harato pusako has been pawned, the severe restrictions which adat puts on temporary alienations do not fully apply anymore to the transfers of pawnings. When the pawner-kaum as a whole wishes to transfer the pawning to a new pawnee, a unanimous decision of all kaum members is still required. But the adat restrictions are considerably lessened when individual kaum members wish to transfer the pawning to themselves, or if the pawnee wishes to terminate the pawning relationship through a transfer to a new pawnee. For if the kaum does not redeem the property, it has no right to prevent these transactions. The practical consequences thereof, a rather high mobility of pusako property, will be described and analyzed in the next chapter.

4. The Privi~eged Loans of Harato Pusako Besides the temporary transfers of harato pusako in the form of pagang gadai, adat allows the transfer of some of a kaum's harato pusako to the kaum's anak pisang, the children of the male kaum members. These transfers closely resembie a privileged loan. They are temporary in principle and involve no, or only a small counter-prestation on the part of the anak pisang. They sometimes are clothed in the form of a pawning, in which case, however, much less money is demanded from the anak pisang than would be asked from another pawnee. In contemporary Minangkabau, such transfers go under the term of "hibah of pusako", but in former times other, and more differentiated terms were used.
a. Manggarek Gombak-The Cutting of the Hair-Lock In the areas of Solok and Batu Sangkar (Tanah Datar) one pusako transaction between the bako and the anak pisang was cal led manggarek gombak, "the cutting oH of the hair-Iock" (cf. Duursma 1934: 160 H.). It is (was) a transaction in which the rights to use and exploit the property were transferred. The bako had to be sakato, and the kaum of the children

and their adat elders were invited to a communal meal. During this meal and the accompanying ceremony, the bako declared that one wanted to give this and that property, say rice-fields, to one's anak pisang. The recipient, who could be a boy or an adult male, but was in all cases a male anak pisang, then made his round of the Niniek Mamak, who cut off a hair-Iock which was kept as tando, as evidence for the transaction (Duursma 1934: 160; Kom 1941: 312). In the area of Batu Sangkar, the child gets the use right for his lifetime. Af ter his death, the property reverts to his bako. During the time of his possession he may not pawn (or sell) it, but may have it worked by share-croppers. In the region of Alahan Panjang and Muara Labuh, the property is given to the child's jurai in continuity. It becomes the pusako rendah of his jurai members af ter his death. If his jurai should become extinct, the property reverts to the bako and it is not inherited by the other jurai of the recipient's kaum (Duursma 1934: 161).

b. Sando The term sando is not used of ten in contemporary Minangkabau, and the historical and present meanings of this concept in Minangkabau cannot be stated with absolute certainty. Sando is a Sanskrit word, meaning "to pawn" ~ "ta pledge", and i t has been incorporated wi th this meaning in several Indonesian languages. 40 There is some evidence that sando was also used more or less coterminously with gadai (e.g. in the saying "sando indak dimakan gadai") ,but much evidence supports the interpretation that it was used to denote a particular form of pawning or gift from the bako to its anak pisang. According to Kemal, sando is just another word for pagang gadai, but he reports that in the region of Lintau Buo (in Tanah Datar) sando is used to denote "pagang gadai transactions with the children seZama huduik anak, for the lifetime of the children" (1964: 67). For such transactions, also the terms sando agung or sando kudo were used. In a similar way the meaning had been explained by adat experts to Guyt, who acted as chairman of colonial courts in the 1930'5: "To give land to the anak pisang for little money" (1936: 19).41 The most sophisticated elaboration in the contemporary Minangkabau expert-literature is given by Dt. Majoindo (1956: 91 ff.), which suggests th at in former times sando and its different manifestations may have been the basic concept for all transactions over harato pusako. According to Dt. Majoindo, the word pagang originally referred to pawnings of "movable property or harato panca-

PROPERTI IN SOCIAL CONfINUITI

harian" only, whereas sando were pawnings of harato pusako in the four classical situations in which adat permitted such transactions. He enumerates three kinds of sando:

1. sandoro this is anormal sando (pawning) for dua tahun ketiga,
which may be redeerred af ter two years.

2. sando kudo this is a pawning to the children (anak pisang) or to
other persons with the stipulation that it can only be redeemed with the consent of the pawnee. 42

3. sando agung this is a sando which has been carried out that long
ago, that people do not remember the original pawning sum any more.

During our stay in CKL, the term sando was used in one case by one panghulu with the meaning of a transfer of pusako to the anak pisang for little money in a situation where the buah gadang of the pusako holder was extinct.

c. The Hibah of Harato Pusako

In contemporary Minangkabau, transactions like the ones mentioned above are denoted with the label or hibah. Hibah is an Arabic word which means gift. In Islamic law, hibah is a complete and irrevocable donation made during the lifetime of the donor (Fyzee 1955: 186 f.), but in Minangkabau adat the term is used with different meanings: Hibah of harato pusako means the transfer of pusako property objects to the anak pisang, usually selama hidup anak, for the lifetime of the children, or for the children's jurai in continuity. No matter who initiates the transaction, (usually fathers who want to give some of their harato pusako to their children initiate), all kaum memhers must agree to it, and the hibah- transaction must be held in the house of the giver's kaum with the presence of the four holders of the adjacent property and the panghulu and other adat functionaries. If all persons agree to the transaction the panghulu of the giver's kaum officially hands over the authority over the property to the panghuZu of the receiver's kaum. If such hibah is made in punah-si tuations, e.g. by the last living member of a kaum or buah gadang, the warih nan sajari, who would inherit the property if the group was extinct, must also give their consent (cf. Dt. Maruhum Batuah and Bagindo Tanameh 1954: 51). According to adat experts, different kinds of hibah must be distinguished. The following version is taken from I.H. Dt. Rajo Panghulu

179 (1973: 51), and it corresponds more or less with the explanations of hibah which were gi ven us in interviews in CKL:

1. Hibah laleh: This is a hibah from a man whose group is extinct to his children or to kamanakan of the same suku with whom no genealogical relationships are recognized. This kind of hibah practically results in an adoption of the beneficiary: "the child is made a kemanakan and from now on lives with his or her descendants in the suku and the kampuang area, which are the pusako of the father who has given the property as hibah". 43
2. Hibah bakeh: This is a temporary hibah to the children. The length of the transfer is stipulated when the hibah is made; it usually extends until the last of the children has died. aften, the property which had been the father's harato pambaoan is used for such a hibah.
3. Hibah pampeh: This is a hibah from a panghulu to his children or to others because he either ''has too much pusako" or his group is extinct. In this case, a pampgh (Ind.: pampas), a reimbursement, is specified. The children make a token payment at the time of the transaction, and af ter the time stipulated in the transaction has elapsed, the kamanakan of the giver can redeem the property by paying the reimbursement (dengan memberi pampasan) which is much higher than the token payment the children had to make (1973: 51 f.). In CKL, the latter transactions were known under the name of hibah-gadai. Hibah for the lifetime of the children (selama hidup anak) and for the childrens' jurai in continuity were distinguished. Instances of such transactions are described in the following chapter.
d. A Note on Terminological Development In contemporary Minangkabau, the "hibah of pusako with the consent of the kaum and the panghulu"is a corranon topic. Experts write about it, villagers speak about it, and cases concerning the hibah of pusako are quite frequent in the State Courts. This is quite surprising, if one considers that, according to older Dutch sources, hibah could only be made with harato panaaharian (Wilken 1926: 56, Willinck 1909: 749; Joustra 1923: 121). According to Willinck,"hibah with respect to harato pusako or the ganggam bauntuek are void" (1909:.749).44 In my opinion, it would be premature to conclude either that Willinck was wrong or that the adat has changed in this respect. What has changed is the terminological usage. What Willinck wrote on the hibah of pusako

IN SOCIAL CONrINUITY

referred to the kind of hibah which individuals used to make over their harato pancaharian: Individuals were allowed to give some panaaharian property to tpoir children by way of hibah; if individuaZs wanted to make such a hiDah of the harato pusako they held as pambaoan or ganggam bauntuek, this would be void -in Willick's time as weIl as in contemporary Minangkabau according to the regular court practice. But obviously the term hibah was not used for transactions between the bako and its anak pisang in Willinck's time. The transactions themselves, however, are not new; it is only that they are now denoted differently. Most probably, the hibah categories have superseded the sando categories: The most widely remembered meaning of sando: a pusako transfer from the bako to the anak pisang for the lifetime of the children,is now covered by the term hibah in its most widely practised form, the hibah bakeh.

5. The Gift of Harato Panaaharian
a. Hibah The gift of panaaharian property -usually from a father to his children -is cal led hibah. The hibah in adat is different from the meaning the hibah has in Islamic law (see pp. 178, 198). In adat, the hibah is carried out by the father during his lifetime, but the transfer of the property becomes effective only upon the father's death. Af ter the father's death the transfer is definite. A hibah once made can be revoked before the death of the pers on making it (Willinck 1909: 747). The property objects given by hibah became the recipient's harato pusako (rendah) to be turun temurun in his or her jurai (1909: 750).45 The degree to which the individual was granted autonomy to make hibah of his harato panaaharian has changed considerably during the last 100 years. In Willinck's time, around the turn of this century, adat allowed the individual to give away about one half of his or her panaaharian property by hibah. This transaction, however, had to occur ''with the knowIedge" of the individual '5 ahZi warih, and had to be witnessed by his panghuZu (1909: 748). In other sources it is reported that such a transaction even required the "consent" of the ahZi warih. 46 These restrictions on the individual's autonomy have been increasingly lessened in the course of time. In the 1930'5 it had become court-Iaw that an individual could dispose of all his harato panaaharian without any cooperation of his kaum members or the adat functionaries, and in contemporary Minangkabau

this freedom of disposition is generally ackowledged. This development will be described and analysed in detail in Chapter 6.

b. Pemberian-Gift In contemporary Minangkabau, the concept of pemberian, "the given", "the gift", is increasingly used to denote transactions over both harato pancaharian and harato pusako. It is used for transfers which become effective during the giver's lifetime as weIl as for those, which have effect af ter his death. It is not a traditional adat concept to which precise legal consequences are attached. In practice, pemberian is used to cover those transactions which otherwise are denoted hibah, and the same distinction concerning its validity are made which are made for a hibah of harato pancaharian and harato pusako respectively.
6. Umanaik, Wasiyat, Hibah-Wasiyat-Testamentary Gifts Written testaments were unknown in adat. People could make "death bed declarations" by which they could try to direct the flow of their harato pancaharian property, but such declarations had no binding force on the heirs, the ahZi warih. Onder the influence of Islam and Islamic law, the concept denoting the institution of testament in Islamic law, wasiyat, was incorporated into adat. Besides wasiyat, the terms umanat (umanaikJ, or hibah-wasiyat are used. The legal consequences attached to testaments in adat, are, however, quite different from those in Islamic law (see below p. 199 ff.). In adat, a person could not dispose of harato pancaharian by testament more freely than by hibah during his lifetime. The development of the adat concerning testamentary dispositions has been parallel to the one concerning hibah and the individual's autonomy to dispose of his harato pancaharian in general.
7. Utang-Debts The information about debts and the diachronic transfer of debts according to adat is rather scarce. In the older Dutch sources some information is given, but in the more recent literature the problem is hardly mentioned at all. Interviews yield only very general rules, and there are only a few decided cases dealing with debts from which the "adat system of debts" cannot be abstracted as a matter of course. The basic principle of the adat pusako is expressed in the following saying: "u tang si mati dibaie jo harato si mati-Utang pusako dibaie jo pusako" (Willinck 1909: 783; R v J in AB 6: 16) -"The debts of the

PROPERTY IN SOCIAL CONfINUITY

deceased are paid with the property (panaaharian) of the deceased -The debts of the pusako are paid wi th the pusako". In adat, two kinds of debts are recognized: Debts which an individual has incurred (private debts) and debts of the whole kaum. The latter are debts incurred in the name of the kaum by the mamak kepaZa wOX'ih or some other kaum member. In order to make a debt a kaum debt, it must have been made af ter a consultation with the kaum members, who must be a sakato. If one kaum member makes debts and does not ask the approval of his kaum members, his debts will be ''private'' ones. Creditors are supposed to know what sort of debts their debtors make and to make sure, at their own risk, whether the debt is a private or a kaum debt. In nagari life, most cases of debt will be quite unambiguous. One cannot make great debts in secret. If one does, they must be private debts. The creditor will know it, and he will also know that the kaum of his debtor will not do anything ab out such debts. In economie activities outside the nagari, this is more difficult to ascertain, and one probably has to assume that debts are private ones unless the kaum has officially recognized the debt as a kaum debt. It is reported, that the creditors had to announce their claims at the funeral ceremony, before the inheritance was distributed. If they were late with their public announcement, the heirs were not obliged to pay the debts (Van Hasselt 1882: 284). In the funeral ceremonies which we attended in CKL, it was demanded during the ceremonial speeches given in the deceased's house, that those who had claims against the dead should come forward and announce them, and that the moral debts, the utang budi, should be forgiven. But this statement had a formal and ceremonial character. It was certainly not meant that the creditors should come forward at this moment, but that they should approach the heirs af ter the burial and the further funeral ceremonies. Private debts must be paid of the hOX'ato panaahOX'ian of the debtor. If the debt exceeds the value of the panaaharian, the whole harato panaaharian will be used in payment. The hOX'ato pusako of the debtor cannot, however, be used to satisfy the creditor. This holds true in synchronie and diachronie perspective, during the lifetime of the debtor and af ter his death: Only the harato panaaharian of the deceased can be used to pay the debts, the hOX'ato pusako or the panaaharian held by the debtor' s heirs cannot be held liable (see Willinck 1909: 783 f.; AB 6:

16).47 HOX'ato panaaharian, which had been given by hibah to the children, could not be held liable for the payment of debts; only the aativa were transferred by hibah (Willinck 1909: 751,794 f.).

The debt relationship as such thus was not continued by the heirs. It was and remained attached to the deceased and his or her harato pancaharian. The heirs were only responsible to make the payment out of the property which the deceased left. The main principle for kaum debts was that the person who had made the debt should repay it. But if he was not able to do sa, or if he died befare he could do sa, the kaum was responsibIe for the repayment with its harato pusako. The kaum members are "u tang scuno dibaie, piutang scuno ditarimo"-"debts are paid together, and outstanding debts are received together". Adat further states "bautang mcunak, kcunanakan mcunbaie-bautang kcunanakan, mcunak mcunbaie"-"the debts of the mcunak are paid by the kcunanakan- the debts of the kcunanakan are paid by the mcunak" (see Willinck 1909: 783 H., Andresen in Kielstra 1892: 273; TNI 1895: 387).

These rules seem to be more or less valid in contemporary Minangkabau, as will be apparent from the following cases. Most problems occur, when a kaum member gives the harato pusako, which he holds as distributed property, as security for debts or credits given by a bank. Security seems to be rarely given, and the question of whether pusako may validly be given as security at all is rarely explicitly answered. In interviews with judges and villagers the opinion prevailed that it could be given if all kaum members agreed to it. In case 8 of 1971 in the PN Batu Sangkar, a panghuZu and his wife had received a credit from a bank. When they were unable to repay, they made an agreement with the bank: They would repay the credit within 60 days. The panghuZu gave a rice-field as security. Failing repayment, the bank should be entitled to sell the field in public. Af ter the 60 days had elapsed, the couple could not repay the credit, and the bank enforced a seizure of the rice-field through the PN. Af ter this had been done, the bank and the panghu Zu were sued by the panghu Zu '5 kaum members, who claimed that the seizure was void and illegal: The sawah was not harato paneaharian, but hamto pusako tinggi. Already in 1969 the panghuZu had made an agreement with the plaintiffs (they claimed) which gave the plaintiffs the right to use the field (a ganggcun bauntuek distribution). The debt had been made without the knowledge of the plaintiffs as the warih of the panghuZu and the ganggcun bauntuek holders of the property (lIoZeh karena tanpa setahu dari penggugat2 baik seZaku waris dan kaum tergugat maupun yang memegang ganggcun bauntuek berdasarkan persetujuan tersebut"). The debts therefore were private debts,and could only be

PROPERTI IN SOCIAL CONrINUITI

claimed against the panghuZu's harato pancaharian, not against the harato pusako ("karena itu menu:rut adat hutang tersebut tidak dapat debebankan kepada harta pusaka tinggi tetapi hanya dapat dibebankan kepada harta pancaharian pribadi dari X"). Unfortunately (for the anthropologist) the case was stayed and has not yet been decided. 48

The mIe "bautang mamak, kamanakan mambaie-bautang kamanakan, mamak mambaie" mayalso be illustrated wi th a case (27 of 1969 PN Bukit T:inggi) : In 1965, the woman A had made debts with the plaintiff in the case. When in 1967 some trouble had occurred over the repayment, the parties had made up a document in which the debt was acknowledged by the defendant (a surat pangakuan hutang). C,the panghuZu of A, had written a declaration (a surat keterangan) which was to serve as jaminan, "security", that the debt of his kamanakan A would be speedily repaid (bahwa hutang kemanakannya akan segera dibayar). The plaintiff had sued A and C, claiming that C, as mamak kepaZa waris of A, was also a party to the debt-relationship. The panghuZu defended himself by stating that the debt had been a private debt, and that he was not the mamak kepaZa waris of A, but had only acted as lineage elder (ninik mamak); in other words, that he was not the mamak kaum of A, but the panghuZu of the buah gadang. The PN decided, that the panghuZu was liable to pay the debt, as he was the mamak kepaZa waris of A, and '~ad also engaged in some activities to speed up the payment". In appeal, however, (PT Padang case 84 of 1970) the claim against the panghuZu was rejected: The PT held th at the panghuZu had merely "acted as someone who wanted to settle the dispute between the parties", and that it had not been proven that he was a party to the debt-relationship.

Private debts should be paid by the pancaharian-heirs. In interviews it was generally stated that now, when the children inherited a man's harato pancaharian, his debts should also be settled by them. 49 But much depends on "situasi dan condisi", on the particulars of a concrete situation. Consider the following case, which had occurred in CKL and had been finally decided by the PN Bukit Tinggi (case 42 of 1972). The woman R., who was sued by her father' s kamanakan ,claimed that she had lent her father some money and that her father had allowed her to work '~is" pusako-fields in return. When the father's kamanakan claimed the sawah af ter his death, R. fended them off by demanding that they should pay her father's debts first. The kamanakan basically agreed.

185 But when no consensus could be reached over the amount of money to be paid, they took the case to court. During the hearing of the case, the plaintiff kamanakan stressed that there had never been a pawning transaction between their mamak and his daughter, but that their mamak had "admitted" (mangaku) to one of his (classificatory) sisters that he had borrowed the money from his daughter. The court ordered the return of the fields in exchange for the payment of the debts by the kamanakan. This ruling was based upon the argument, that "if money is given in exchange for land, there is a pawning transaction", and that the plaintiffs we re therefore entitled to redeem their harato pusako. The interesting aspect of this case is that the idea, that the debts could have been private debts which should be inherited by the daughter, was completely foreign to all participants and was never raised as an argument. For the plaintiff kamanakan, the case was clearly one of "debt". There had been no pawning transaction, and none of the witnesses heard had made any reference to a pawning ceremony. So we must assume that in the eyes of the plaintiffs, the "avowal" of the debt by the deceased to one of his kaum members was sufficient to make it a kaum debt; during the case it was never mentioned or claimed that the debt had been made in the interest of the kaum. But it mayalso be that the villagers take a different stand towards the inheritance of pancaharian-activa and passiva: Whereas it is considered normal in contemporary Minangkabau that the harato pancaharian (activa) are inherited by the children, it may weIl be, that wi th respect to debts, the "old" attitude may still prevail: that debts are inherited "by the heirs", the kamanakan. The court evaded the question of debt-inheritance by constructing a pagang gadai transaction; certainly the easiest way out of the problem, but the one least in accordance with adat.

IV. ANALYSIS OF THE ADAT PUSAKO

In the following section, I shall attempt a brief analysis of the adat pusako in relation to three main points of reference: I shall analyse the adat system in terms of:

1. corporateness, examining the relation between corpora te group structure and property relationships in Minangkabau;
2. the way in which society's members' autonomy is restricted by adat with respect ta property;

PROPERTI IN SOCIAL CONTINUITI

3. the temporal dimensions inherent in Minangkabau property relationships and its conceptual system. The analysis, in this place in the study, has a preliminary character. It is intended as an analysis of the ~old" Minangkabau system of property relationships which will serve as background and frame of reference for understanding the developments which have occurred during the last 150 years; these later,àevelopments are described and analyzed in the following two chapt2rs. I am quite aware of the fact that such a juxtaposition of "old" adat and i ts developments leading to the "new" adat is in part artificial, yet I see no other way to analyse the changes which undoubtedly have occured in Minangkabau. Change and development demand a reference to a previous "state", and the anthropologist must construct such a state, knowing that he has to throw together various manifestations of adat which belong to different historical periods, and which themselves are developments rather than steady states.
   1. Corpora te Group Structure and Property Relationships in the Adat Pusako In my description of the adat system of property relationships I have consciously avoided the use of the concepts "corporate" ot "corporate group". Since Maine it has become quite conmon in social anthropology to characterize the social groups in traditional societies, and lineages in particular, as corporate groups, and many anthropologists chose to define the corporate group character with reference to common or corporate property holding (see Goodenough 1951; Leach 1961b; Gough 1961; Goody 1962; Smith 1956; Fried 1957). Some of the greatest authorities on Indonesian adat law, too, have characterized the legal status of social groups, the rechtsgemeenschappen (legal communities),by reference to common property holding and administration. Van Vollenhoven, for instance, used the criterion of common property to de fine the "familie" in Minangkabau, which corresponds to the social groups called kaum or buah gadang in CKL (1918: 250). This practice has been followed somewhat uncritically by later authors and, in my view, has given rise to some misunderstandings of the adat pusako. If I therefore employ the concepts "corporate group" and "conmon" or "corporate property" in the following analysis, I do not intend to enter into the discussion over their proper conceptual use; my aim is rather to clarify Minangkabau property relationships in relation to the ideas expressed by other authors.

To define social groups as corporate using corpora te property holding as a or the constitutive criterion is, of course, a matter of convenience. If it is done, however, it should fit the ethnographic facts. Incongruencies between ethnographic facts concerning social groups and their allegedly corporate character stimulated Fortes to his recent critical review of the various ways in which the concept has been used by other anthropologists (1970a: 291 ff.). Fortes' analysis is a con- venient starting point for my discussion of the character of the property holding groups in Minangkabau. In his analysis, Fortes maintains that the decisive characteristic of corporate groups is their definition as "one", as "one juristic person" in what he calls the politico-jural domain (1970a: 300,302,308). Cornmenting upon the working concepts of Goodenough, Gough and Goody which are based upon "one property", he concludes that property relationships are contingent upon and not constitutive of corporate group character. According to Fortes, property is the dependent variabIe, the definition of the social group as "one" in the politico-jural domain the independent one (1970a: 300). As much as I can agree with his review of the works quoted, his conclusion remains unsatisfactory. For it fails to distinguish between the two levels on which property relationships are usually expressed, the level of socio-political authority over property and the level of use and exploitation of property. Minangkabau adat allows me to demonstrate that the analysis of property relationships in terms of corporateness will remain confusing unless both levels are considered separately: The Minangkabau buah gadang, and in contemporary Minangkabau the kaum, (corresponding to those social groups called paruik or sabuah paruik in the literature on Minangkabau) seem to be the corporate group par excellence. In adat, these groups are defined as "one" in several respects, among which is property-holding. The members of the group are urang saharato, people of one property; the mamak represents his kaum members in all property affairs; no suit about harato pusako of the kaum will be entertained in court unless each party is represented by the mamak in his capacity as mamak of the kaum. The mamak is further responsibIe for the distributiàn of property within the group, and he must act for the group in transactions over kaum-property. In adat, there is not just the definition as "one" in terms of the adat-ideology, the functions attached to the "one-ness" carry important practical consequences.

PROPER1Y IN SOCIAL CONTINUI1Y But within the kaum, there are quite important differentiations between the members who are of "one" property:

1. There is the differentiation according to the socio-political status of the group members, which also affects their relationships to the "one" property. The descendants of former slaves and strangers have no equal rights to the property of the group. Though they may inherit the property if the blood relatives have died out, they are in principle ineligible for the panghuZuship and cannot inherit the sako even if the blood relatives are extinct. So far as these factors are concerned, one cannot speak of the kaum members as constituting a group which has "one" property, or which "functions as an individual iR relation to property", like the lineages described by Goodenough on Truk (1951: 29 ff.).50
2. The "corporateness" of the kaum is not only dissol ved through the different social statuses of the group members. Having "one" property only applies to that property which is turun temurun for all group members. Only in relation to this property have the kamanakan bataZi darah essentially the same rights, which are then allocated and distributed in the ways described above. But this property may not be the only "property of the kaum": There may be property which is the separate pusako turun temurun of one jurai based upon the inheritance from their mamak, and jurai may have their own pusako in continuity which has been given by the bako. If we were to adopt Fortes' attitude, the Minangkabau example would weIl support his analysis: The kaum is described as corporate group, but the group members do not actually form a corporation aggregate with respect to all the property objects which are harato pusako kaum. It would therefore be necessary to conclude that what gives the kaum its corpora te character is its definition as one in the politico-jural domain or, as the Minangkabau would say, in adat. But it is much more reasonable to examine both levels of property relationships and consider the corporateness of the group on the level of socio-political authority, and use-and-exploitation separately. For on the level of socio-political control over property, the kaum is corporate. It is defined as "one" with respect to property, and the corporate character becomes manifest in many social functions. On the level of use rights and exploitation, the kaum is not (necessarily) corporate, but rather there are several

jura i, same contained within others, which have their separate harato pusako turun temurun within the kaum. The best illustration for this two-level conception is the gift of harato pusako from the bako to its anak pisang in continuity: The property is officially handed over from the bako's panghuZu to the anak pisang's panghulu. From now on, the property is pusako of the anak pisang's kaum (buah gadang) and their panghulu will exercise socio-poli tical authori ty over i t in the same way as over the other harato pusako of his kaum members. On the level of use-and-exploitation, hawever, only the anak pisang's jurai may use and exploit that property. Even if their jurai were extinct, their co- jurai would not inherit it, but it would revert to the bako. What has been said for the corporate "holding" of property also pertains to inheritance. As Fortes correctly remarks: "Succession, as all authorities insist, is of key importance in corporate group structure as weIl as, of course, in the continuity of corporations sole. But it is the instrument for ensuring the corporate continuity, given the principle of the corporate identity of organized pluralities, not the foundation of this principle, unIess, of course, we subsume the rules of exclusive recruitment under the rubric of succession" (1970a: 305). Failure to make the distinction will only lead to a confusion in the interpretation of the ethnographic data. Examples of such confusion are the statements of Goody on the corporate nature of property relationships among the Lo Dagaa. Although Goody makes it very clear that he intends to separate inheritance from des cent (1962: 316), he is led into difficulties by his undifferentiated use of the concept "corporation" • With respect to inheritance he states, that "in the last analysis, these various mechanisms are dependent upon the concept of corporation, the idea that all members of the matriclan are enti tled to share the dead man' s property" (1962: 354). But the practice seems to be different: "Implicit in the whole situation lies a potential conflict between the idea of joint ownership and the operation of the next-of-kin principle of selection, between the claims of a single individual and those of the corporate group as a whoIe" (1962: 346). If one reads these statements one cannot help but conclude that a discrepancy between the ideal norm of corpora te group structure and the actual inheritance practice is indicated. But there may be a "conflict" only if bath levels of property relationships are fused into one through the notion of corporation. 51 But in fact, there may weIl be just two sets of norms: one on the level of socio-political authority, where the principle of corporateness operates, and one on the level of use rights

IN SOCIAL CONTINUITY

and their inheritance, where the principle of next-in-kin inheritance works. 52

I would not have restated 50 much of the adat in terms of corpora te- ness, if the description which I have given of the adat pusako system of property relationships corresponded to the descriptions which are dominant in the Minangkabau literature. But most authors have not drawn the distinctions I have made, and which are, as I have described, also drawn in the adat pusako. Most authors have been guided by the influen- tialstatement of Van Vollenhoven, that only the familie (buah gadang or kaum) was a rechtsgemeenschap, alegal community with common property, whereas the "family branch or jurai" are notIegal communities (1918: 250). This view was also extended to inheritance: If a pers on died leaving harta pancaharian, this property feIl to his family (kaum) as family property. The whole family became its possessor; the closest relatives, the jurai and their mamak, only took "precedence" (voorrang) over the other kaum members with respect to the use of the property. Once the genera ti on of the persons having this "precedence-in-use" (onderhouds- voorrang) had died, the property became pusako for all family members alike (1918: 261 f.). Smits and Van Bosse, two Dutch colonial lawyers, construed the pusako relationship on the model of the Germanic Gesamthandseigentum with its institutions of accrual and decrease: Each time a family member died, the remaining members' shares increased, and each time a new member was bom into the family, the other mernber's shares in the pusako decreased (quoted in Willinck 1909: 769 ff.). These interpretations contradict our data and would certainly be wrong for contemporary Minangkabau. But already Willinck had explicitly stated that only the jurai of the deceased had a right to the former harato pancaharian of their mamak, and that the other kaum members (in the kaum's other jurai) would only inherit the right to use and exploit the property if the jurai was extinct (1909: 574 f., 782 f.). Willinck's statement was shortly afterwards confirmed by Sarolea (1920), who focussed his research on exactly this question and came up with the same results as Willinck. Van Vollenhoven's statement is probably based upon less differentiated sources, and it must be noted that he expressed himself with caution, writing "that it seerns" (naar het schijnt) that all family members had anequal right to the property af ter the generation of '~recedent-users" had died. Later authors were less cautious; they either took over Van Vollenhoven's statement unreflectedly, or contented

themselves with rather undifferentiated statements that "pusako was owned both comnumally and individually" (cf. Kalm 1976: 71). 1 nrust also contradict Evers who in his recent (and otherwise very interesting) analysis of land tenure in Padang claims to have "detected" the separate holding of harta pusaka by a woman and her descendants as a ''new'' type of cornmunal landownership (1975: 107).53 As has been sufficiently demonstrated (and will be illustrated in the following chapter) this type of pusako holding is by no means new. It may be more evident, since in contemporary Minangkabau the level of adat socio-political authority has been superseded to some extent, and the relationships on this level are less effective than they used to beo

2. The Limitation of the Society's Members' Autonomy Minangkabau adat limits society's members' autonomy in different ways.
1. The autonomy of all ~linangkabau, individuals and groups, is limited in the name of the community through its general adat TUles, in 50 far as
a) harato pusako may not be alienated permanently,
b) temporary alienations may only occur under specified circumstances: in the four classical situations in which a pagang gadai is allowed, or if it is based upon a particular social relationship, like the gifts of the bako to its anak pisang.
2. The autonomy is, under the preconditions of 1., fully granted to the groups, and in these cases the individual's autonomy is restricted by the groups • The groups may do what they want, if they speak as "one", when they are sakato. If the individual wants to exercise autonomy over the property objects which he has a right to use and exploit, he nrust:
a) as member of the pusako holding group, try to achieve a sakato of his group,
b) as holder of panaaharian, secure the consent, saizin, or the "knowIedge", satahu, of his group members.
3. In most of the cases mentioned under 2., an addi tional requirement is tre ''knowledge and participation" of the adat-functionaries and witnesses in the transaction.

PROPERTY IN SOCIAL CONTlNUITY

The validity of transactions, in which society's mewbers exercise their autonomy over property objects, thus is measured in two ways: First, it is evaluated in reference to general law, in a process of abstract evaluation; and, it is also validated in a social process. The character of these social processes has been excellently analysed by the Dutch schalars of adat law, who referred to them as "gesteunde naZeving" (Van Vollenhoven 1931: 247 H.) or "preventieve rechtszorg", preventive law application (Logemann 1924: 128, see O1apter 1: 35 f.). These functions are also inherent in the social processes in Minangkabau, which require the consent of the kaum and the participation and witnessing of the adat-functionaries. However, in social life one has not only to do with successful processes. Adat prescribes that a sakato must have been reached if the transaction is to be valid. It does not, however, prescribe that sakato must be reached. As a general principle, each kaum member has the right to withhold his consent and prevent the sakato from being reached. What determines the outcome, positive or negative, of the musyawarah process rather are moral, political, and economie factors, which, of course, are adat, too. The outcome is "tergantung situasi dan condisi"; i.e., it depends on the situation and the circumstances. The principle of decision making is based upon the presupposition that the ac tors will do the '~roper" thing in each concrete situation, and what is proper can only be determined in the interaction of the participants in a concrete situation. It would therefore be quite dangerous to abstract general principles from such decisions (see O1apter 1: 37). Individual aims and motivations are readjusted though the pressures -maral, political and economie-which others can bring to bear upon the individual. In the last resort, the higher authorities can be used to exert this pressure. If the kaum withholds its consent (seen from the individual) or if one kaum member does not want to be sakato (seen from the kaum) the exercise of the participants' autonomy can be evaluated by those ''who know better" according to the value and authority system. The aggrieved person(s) can bring the problem before the panghuZu, the suku council or the nagari council (following the hierarchy bajanjang naiek - batanggo turun, see O1apter 2: 91 f.). These authori ties will determine, whether there was a ''proper'' or an "acceptable" reason for the respective pers ons to withhold their consent or to insist on their intention to make a specific transaction. The council can either order the others to cooperate, or even decIare the trans act ion valid itself without their cooperation (see Dt. SanggoenoDirajo 1924: 118 ff.; Guyt 1936: 80. In

OF PROPERTY RELATIONSHIPS 193

CKL the same views are expressed.). But there are also restraints that will prevent the conflict being taken to the higher authorities, or which will prevent the higher authorities from deciding definitely. For conflicts should be settled within the group. One would become malu, ashamed, if otherswere to take notice of it, or even if others decided the conflict. It would also be ~ sign of poor mamakship, if the mamak could not lead his kamanakan to a sakato. The result is, that conflicts linger undecided within the group: one cannot come to a sakato, but one does not want to have others mix with the problem. Likewise, the nagari council will be loth to interfere in the matter, for "pusako sakato niniek mamak": pusako troubles should be decided by the lineage elders, and the Karapatan Nagari has ''more important things to do" than to be busy with some quarrel between people who do not know what is proper. S4 It is important to note, that there is only a gradual difference in this respect between the no ti on of "consent" (saizin) and of the "knowIedge" (satahu) which is required in such cases. The "satahu", literally: ''with one,or common, knowing", is extremely difficult to translate. The most appropriate English translation probably is "taking cognizance" or "acknowledge". Most Dutch authors translated it with "kennis" or "medeweten". But satahu does not refer to abstract knowIedge. It is not sufficient for the validity of a transaction that the mamak and the adat elders "know" of it. Satahu, too, refers to a social process in which knowledge must be given and accepted, and in which knowledge can also be refused. Refusal to accept knowledge is usually expressed through one's absence in the ceremony which must be held if the transaction is to be validly carried out. Even if one knows fully about the transaction,

i.e., if one has been informed of it, if one does not appear in the meeting, then one does not "know" in adat, one does not (yet) accept responsibility for the validity of the transaction. The distinction between "consent" and "knowIedge" made in western law does not correspond to this adat distinction. Satahu and saizin are both variants of the same kind of process. They indicate different degrees of necessary cooperation of the group members and adat functionaries, but both imply a "consent"-requirement which must be fulfilled in the social process of giving consent or taking cognizance (cf. Logemann 1924: 123). It is obvious that the concrete functioning of these principles will be seriously influenced if the factors which motivate the individual participants' interactions in these processes change and if new forms of morality and authority develop. The problem of change and its impact

PROPERIY IN SOCIAL CONTINUITY

on the prineiples just deseribed will be dealt with in the following chapters.

3. The Temporal Dimension in Minangkabau Property Relationships The dominant attitude towards time inherent in the eoneeptual system of the adat pusako is one of infinite eontinuity. This finds its primary expression in the notion that all property is pusako turun temurun, which deseends and deseends as heritage in an endless proeess. The basie adat eategories of property, the various kinds of harato pusako, are, as it were, distinguished in the diachronie dimension: the kinds of harato pusako are distinguished aeeording to their mode of aequisition in the past, and further by the relative distanee in time from the moment of their aequisition. There are also property eategories which do not embody this dimension of infiniteeontinuity: harato panaaharian, harato suarang, harato dapatan and harato pambaoan. The legal status of these property objeets is temporary; it is tied to the individual's lifetime or to the duration of the marriage. Onee the individual has died or the marriage has been dissolved, the legal status eannot be maintained but the property objeets beeome absorbed in the endless proeess of turun temurun as harato pusako. In Minangkabau thinking on property, these temporary legal statuses are of less importanee if eompared to the eontinuity of the pusako. The harato panaaharian are "drawn into" the diachronie dimension: they beeome harato pusako tambilang ameh or harato pusako tambilang basi, or, in the more modern eoneeptual usage, harato pusako rendah. In the system of pusako eategories, the harato panaaharian are harato pusako. Clearly, this equation of harato panaaharian with harato pusako tambilang ameh or harato pusako rendah is only possible in the diachronie dimension. In the synchronie dimension, related to the lifetime of the individual, it would not make sense: For the individual property holder, harato panaaharian and harato pusako are definitely different eategories of property to which different legal eonsequenees are attached. The dominanee of this diachronie thinking, in which the individual property holder is more or less ''blended out", most clearly beeomes apparent in the way in which Minangkabau think and speak about inheritanee. Here, the equation of harato panaaharian with harato pusako is very frequently made. When the villagers explained to us their system of inheritanee and stated that self-aequired property in eontemporary Minangkabau is inherited by the children, this was frequently expressed

by saying that "the hCll'ato pusako rendah are inherited by the children" C~Cll'ato panaaharian diwarisi oZeh anak", or "hCll'ato panaaharian jatueh kapado anak"). At first we fOlmd these statements puzzling, for we construed them according to our, western, thinking about inheri tance, which is prospective: The hCll'ato pusako rendah are, i.e. will be, inherited by the children. But this did not, of course, make any sense in the light of what we knew about inheritance in Minangkabau. Further discussion with villagers then revealed unfailingly that, of course, property objects which had the legal status of hCll'ato pusako rendah now, would never be inherited by the children but by the kamanakan-for the property is pusako. The statement: "hCll'ato pusako rendah are inherited by the children" thus would have to be translated as follows: "Property objects, the legal status of which will be hCll'ato pusako rendah af ter their holder, to whom they are still hCll'ato panaaharian, has died, will have been inherited by the holder 's children". The Minangkabau speaker projects himself into the future in order to speak of future events as already having occurred in the past. He does so by equating hCll'ato panaahCll'ian with hCll'ato pusako rendah, by projecting the legal status of the property into the future, which presupposes a future event, inheritance, to have happened. If we were to translate this thinking into the western system of tenses, it would correspond to the future perfect tense. This kind of speaking ab out inheritance is quite frequent and it is by no means limited to the common villagers. One of our informants who had received a modem education and held a post in the state administration, used to refer to the hCll'ato panaaharian of his still living father as "my father' s hCll'ato pusako rendah which will be inherited by us, his children". The same attitude is also manifest in the following statement given by a State Court CPN Batu Sangkar case 39 of 1969): ". " bahwa oZeh kCll'ena di Minangkahau ada dua maaam hCll'ta pusaka datam pembahagian pokok, yaitu hCll'ta pusaka tinggi dan hCll'ta pusaka rendah, dimana perbedaanya terZetak pada asaZ usuZ haI'ta2 tersebut, yaitu bahwa hCll'ta pusaka tinggi berasaZ dari hasiZ aanaang Zetih dari generasi asaZ yang bertaZi dCll'ah menurut garis ibu dan turun kepada generasi daZam garis ibu juga, sedang hCll'ta pusaka rendah adaZah hCll'ta2 yang diperoZeh bukan sebagai hasiZ aanaang Zetih oZeh nenek moyang sendiri, meZainkan mungkin deperdapat kCll'ena jaZan beli maupun karena hubungan2 hukum Zain." "In Minangkabau there is a basic dimsion of two kinds of pusako property, namely between hCll'ta pusaka tinggi and hCll'ta pusaka rendah • The difference between the two lies in their origin: The hCll'ta pusaka tinggi originate from the work of our ancestors in the mother's line and are handed down the generations in the mother's line as weIl. The hCll'ta

PROPERIT IN SOCIAL CONflNUIIT pusaka rendah, on the other hand, do not originate from the work of the ancestors but have been acquired by sale or by other legal means." Here, the statement that the harta pusaka rendah is property which has been bought cannot be read as meaning that bought property is now harta pusaka rendah. It becomes harta pusaka rendah only af ter the buyer, for whom the property was pancaharian, has died. The intervening inheritance is implicit in the court's statement; and the judge implicitly definesthe basic distinction of property in the diachronic dimension. Another exarnple of this attitude is the use which is made in Minangkabau of the concept of warih. In Arabic, warith means heir, and in Islarnic law, as in western law, one has the status of an heir only af ter the death of the deceased. In Minangkabau, warih is also used to denote the living matrikin of the speaker. This led Dutch scholars to the conclusion, that in Minangkabau, the concept warih could not be translated as heir. Van Vollenhoven stated quite explicitly that the wareh in Aceh and the warih in Minangkabau are the "blood relatives" (bloedverwanten) and the "associates of the mamak" (mamak-genooten) and that these words do not implyany thought of inheritance (1918: 178, 262). I cannot agree with his statement. People do think of inheritance when they use the concept warih; not only in situations where warih denotes persons who would be considered heirs also in western understanding, but also when it is a referenee to pers ons or groups still living. Besides, the different categories of warih (sajari, satampo, saeto, sadapo, see above p. 99 clearly suggest, that the warih need not be "mamak-genooten", i.e. kaum mernbers, but that they mayalso belong to quite different, though matrilineally related, social groups. What Van Vollenhoven probably wanted to make clear was that, according to the western logic of property and inheritance law and its ego-centric distinction of the synchronic and diachronic dirnension, there carmot be a holder-heir relationship between living pers ons, i.e. in the synchronic dimension. SS But if we adopt the Minangkabau marmer of thinking in terrns of the diachronic dimension, also living persons can be called heirs because "they will have been heirs". It should also be added, that in western colloquial language, the reference to living pers ons as "heirs" is not uncornrnon. This dominant diachronie thinking about property relationships in the adat pusako is one of the most important elements of the Minangkabau social system. lts importance will become more obvious when the changes in the Minangkabau social system and in the conceptual system of property relationships are described and analysed in the following chapters.

C. ISLAMIC LAW In this section, the basic principles of Islamic property and inheritance law shall briefly be described. The emphasis is on Islamic law proper; the adaptation of Islamic legal concepts and institutions into Minangkabau adat will be discussed later in Chapter 6.
1. MAL~ MILK-PROPERTY AND OWNERSHIP The concept milk, which more or less corresponds to the western notion of ownership, involves the right to the most complete and exclusive use and disposition recognized in Islamic law. The property objects, material and irrnnaterial, to which the milk peTtains, are called mäl, the holder of such a relationship mälik or rabb (see Schacht 1964: 134 ff., 135). The concepts milk and mälik are used for property relationships to things and to the rights to usufruct (Schacht 1964: 135), but a distinction is made between the rights which give control over the substance of the object (the 'ayn) and those which legitimate the making of profits from the substance (the manfa'at pl.manafi') (Fyzee 1955: 194). Property is not distinguished according to its mode of acquisition in the sense of a distinction between self-acquired and ancestral/inherited property. With respect to most legal transactions there are no different rul es for movable and immovable property (Fyzee 1955: 194).
11. PROPERTY WITHIN THE CONJUGAL FAMILY The conception of individual property is central to Islamic law. The property acquired during the marriage by both spouses is regarded as the individual property of the spouse who has acquired it by sale, gift, inheritance etc. (Juynboll 1903: 208). The notion of a joint effort is not recognized (cf. Gautama and Hornick 1972: 46). The husband has the obligation to care for his wife's (wives') living. This obligation ends in principle with the dissolution of the marriage, and is only extended to the iddah-period, which in the case of divorce covers the time of threemenstrualperiods. In Indonesia the iddah- period is usually 100 days (cf. Fyzee 1955: 181 ff.).

PROPERfY IN SOCIAL CONrlNUI1Y

111. PROPER1Y TRANSACTIONS AND THE PROHIBITION OF RIBÄ Islamic law allows permanent alienations of property such as sale and barter (bay'3 shira'). Temporary transactions such as pawning (rahn) are allowed, but are subject to the ribä-prohibition. The prophet had spoken very harshly of the ribä, usury, the taking of interest from other people's property (Koran 11, 276). It has consequently become a firm principle of Islamic law, that it is forbidden to make profit or take interest from uses made of property objects which have been given as security for borrowed money (Juynboll 1903: 273). This greatly affects pawning-transactions: The pawnee may not take benefits from the property objects; in the case of pawned land, e.g., he may not use and exploit it. He is merely allowed to sell itt if the debtor does not repay his debts on the specified day (Juynboll 1903: 273).56 IV. HIBA-OONATION Islamic law makes a sharp distinction between donations between the living and those which become effective af ter the property holder's death, the testamentary dispositions. The main distinction is that during his lifetime the property holder may dispose of all his property by donation, hiba, whereas in testamentary dispositions only one third of his property may be freely disposed of. The hiba is the donation of a property object; to be exact, the donation of the substance ('ayn) of it. Donations of the profits or benefits which may be drawn from property objects are called 'ariya (Fyzee 1955: 187). Donation is the transfer of the right to the substance of the property object without return and without consideratian. In order to be valid, it must have contractual form: It must be offered (?jQb) and accepted (~abul). In general, the possession of the object must be delivered at once (Fyzee 1955: 187, 198). In the cases where donor and donee live in the same house or in the cases of hiba between husband and wife, or between parents and their son, immediate delivery of possession is not required, but there must be at least an un- equivocal manifestation of the donor's intention to transfer the exclusive possession of the property objects (Fyzee 1955: 199 f.). Donations are in principle irrevocable.Once completed, they can only be revoked by the intervention of a court of law or with the consent of the

donee (Fyzee 1955: 223 f.).

V. WA8IYYA-TESTAMENT The autonomy of the individual to dispose of his or her property by testament (w~iyya) is limited in Islamic law. Only one third of the property (af ter the subtraction of debts and other liabilities) may be disposed of in this way. The rest of the inheritance must fall to the legal heirs whose intestate inheritance is laid down in the Koran (Juynboll 1903: 255; Fyzee 1955: 303). The making of a testament is, however, regarded as mandûb, advisable, by the syarak. Testamentary dispositions may not be made to one of the intestate heirs, for according to the interpretation of the Islamic jurists, testaments may not interfere with the inheritance portions as they are laid down in the Koran (Juynboll 1903: 256). The same restrictions also pertain to donations which are made during the last illness, the "sickness of death" (mcm:fu'l-mawt). Such donations are subject to the formalities and conditions of a hiba and all restrictions pertaining to the wa~iyya (Fyzee 1955: 314 f.; Juynboll 1903: 257). VI. WAKF-PROPERTI OF "THE DEAD HAND" The concept wa~f (Ind.: wakaf, wakap) literally means "detention". In Islamic law it denotes 1) State lands which are used for charitable purposes and which are inalienable, and 2) pious endowments. In Indonesia, wakaf is only used in the latter sense. By wakaf, property objects are given to "the dead hand", i.e., they are exempted from business dealings with the destination that their use and profit shall flow to a certain, mostly pious or religious goal, or to a certain group of people (Fyzee 1955: 231 f.; Juynboll 1903: 274). It is the basic motive for the wakaf that the property object will belong to God and that its usufruct be dedicated to specified persons of a charitable purpose in general (Fyzee 1955: 235). Only persons who are entitled to dispose freely of their property maymake a wakaf. The object given must be definitely specified as weIl as the beneficiaries of its profits. The use to which the property is dedicated must be permissible in law (Juynboll 1903: 275 f.).

IN SOCIAL CONTINUITY

VII. FARAIDH-INTESTATE INHERITANCE

The Islamic inheritance law (Ind.: hukum faraidh) is derived from the inheritance portions which are laid down in the Koran. In Arabic, these portions are cal led faridah, pl. fara'iq. The Koranic heirs are cal led ''members of the fardh-portions (dzCllJJU'l-farä 'ü!)". As the knowledge of the fixed portions is the most important and complex part of Islamic inheri tance law, the inheri tance law as a whole has become known under the name of 'ilm al-fara'iq (Ind.: ilmu hukum faraidh), the science of the inheritance portions (Fyzee 1955: 337; Juynboll 1903: 246). The Islamic law of intestate inheritance is a combination of the pre-Koranic Arabic tribal inheritance law and the new legal rules which we re revealed to Mohammed by Allah. Before the establishment of Islam, the Arabic tribes had an agnatic inheritance law. Only the 'a?abät, the agnates, were entitled to inherit. This law was changed by Mohammed. The Koranic verses (IV, 12-15, IV 175) do not contain a completely new regulation but only change the traditional system (Juynboll 1903: 239, 241; Fyzee 1955: 329 f.; Schacht 1964: 169 ff.). The basic principle of intestate inheritance law is that the Koranic heirs must first get the share determined in the Koran, and that there-after the rest falls to the 'al!abät. In the Koran, a fixed portion is given to the daughter, both spouses, and the brothers and sisters. The range of the Koranic heirs has been extended by ''The Learned" to include the son's daughters, the grandparents, and the matrilateral and patrilateral half-sisters (Juynboll 1903: 250). Some of the Koranic heirs lose their right to a fixed portion if they inherit together with a son (sons), and can in this case only inherit as 'a?abät. In terms of inheritance law, the 'a~abat recognized as heirs are the close male agnates and four specified female agnates: the daughters, the son's daughters, the full sisters and the half-sisters (Fyzee 1955: 339).

It is impossible to give a full overview here of all possible combinations that may occur. They can be found in the relevant literature (see Juynboll 1903: 251 ff.; Fyzee 1955: 336 ff.) and are a constant reminder of the prophet 's aphorism "that the laws of inheritance are one half of useful knowIedge". Here, only a short overview will be gi ven:

The Koranic Heirs:

1. The daughters have, as Koranic heirs, the right to ! of their parent's inheritance. A set of more than one daughters inherit 2/3 together. If the daughter(s) inherit together with a son, they are not entitled to their Koranic portion but only inherit as 'a~abät af ter the distribution of the other Koranic shares. TIleir portion then is one half of what the sons inherit (Juynboll 1903: 251).
2. The same rules apply for the son's daughters respectively.
3. The father of the deceased is always entitled to 1/6 of the inheritance. He can, in addition, inherit as 'a~abät, unless he is excluded by the closest agnates, the deceased's descendants.
4. The grandfather'sKoranic portion is 1/6, but he is excluded by his son, the deceased's father. If the grandfather inherits together with the deceased's brothers, he inherits as 'asabat on the same level as the brothers.
5. The mother's portion is 1/6, if she inherits together with children, son's children, or two or more brothers and sisters. In allother cases her portion is 1/3 of the inheritance.
6. The grandmothers' share is 1/6. But the father's mother is excluded by the father, and the mother's mother by the mother.
7. The full sister's share is 1, two or more sisters together inherit 2/3. If sisters inherit together with a full brother, they only inherit as 'a~abat and receive half of their brother's share. Full sisters are excluded by the sons, son's sons, and by the father. As 'a~abät, they inherit on the same level as the grandfather.
8. Patrilateral half-sisters inherit like full sisters, but are excluded by full sisters who together inherit 2/3. If there is one full sister and one half-sister, the full sister gets ! and the half-sister 1/6 of the inheritance.
   9./10. The matrilateral half-brothers' and -sisters' part is 1/6. If two or more come together, they inherit 1/3 together. They are excluded by the children, the son's children, the father, and the paternal grandfather.
9. The widower's portion is 1. If he inherits together with a child or ason's child, his portion is 1/4.
10. The widow'sportion is one half of what the widower would inherit, thus 1/4 and 1/8 respectively. If there is more than one widQw, they share the widow portion together.

IN SOCIAL CONTINUITI

Af ter these portions have been given to the Koranic heirs, the 'a?abat take the rest in the order of: descendants, rnaJ.e descendants' children, father, grandfather and siblings. There may be cases in which the Koranic heirs consume the whole inheritance and nothing will be left to the 'a?abat, e.g., when a man leaves both parents and two daughters: 2/3 should be inherited by the daughters and 1/6 each by the parents. There mayalso be cases where the portions of the Koranic heirs amount to more than 1, e.g., when someone leaves a husband and two sisters, who should inherit ! and 2/3 respectively. The solution for such situations is to increase the denominator to make it equal to the surn of nurnerators and allow the individual nurnerators to remain constant, thus achieving a proportionate decrease of the share of each heir. This artificial i~ flation is called 'a:uZ. 'ca,)Z, which means literally "increase". lts real effect, however, is the proportionate reduction of the shares (Fyzee 1955: 355). If the Koranic portions amount to less than one and there are no 'a~abät to take the rest, the rest returns to the Koranic heirs in propertion to their shares. This situation is called radd, "return" (Fyzee 1955: 256).

VIn. DEBTS

In Islamic law, the deceased' s property does not become the indivisible common property of the heirs. Debts can only be claimed against the deceased's property, and the individual heirs are effected by such claims only in proportion of their shares (Juynboll 1903: 242; Fyzee 1955: 326). It is the theory of Islamic jurisprudence, on which the rights of inheri tance are based, that even af ter his death the deceased' s rights in his property still inhere in him to the extent necessary for meeting the funeral expenses and the legal obligations which he had incurred during his lifetime (Fyzee 1955: 326). The heirs themselves therefore are not liable for the debts of the deceased, the debt-relationships are not continued by the heirs. However, they can only claim their inheritance portion af ter the proportionate reduction of the debts from the inheritance.

RELATIONSHIPS 203

D. WRITIEN LAW The Dutch law of property and inheritance, laid down in the Civil Code (Burger Zijk Wetboek, B.W.) and elaborated in court decisions and books produced by legal experts, had been received in the Colony of the Dutch Bast Indies in 1848. It has already been mentioned, that the Minangkabau adat was in principle left untouched by Dutch property and inheritance law, and by wri tten law in general. However, some exceptions were na:Ie by 1a6 Wri.ch na:Ie inroads :into tre adat system of prq>erty relationships. These laws, which mainly affected the property relationships to land, shall be described in the second part of this section. At first, a brief outlinemust be given of the Dutch system of property and inheritance law. For the few legislative enactments that affected the Minangkabau system of property relationships were based upon it. In addition it must be remembered that, even if the applicability of Dutch law was restricted to a few exceptions in the ZegaZ context, it still was existent in Minangkabau as a cultural phenomenon: The villagers had some very vague notions of it, and the administrators and judges in the Dutch colonial courts, as weIl as the judges in the contemporary State Courts, had been socialized within this system; factors which are weIl of importance for the analysis of the change which has taken place within the adat system.
I. 1HE BASIC PRINCIPLES OF DlITCH PROPERTI AND INHERITANCE LAW
1. Eigendom-Ownership Eigendom, as defined by art. 625 B.W., is the capacity to use a property object freely and control it and dispose of it in the most absolute way (voZstre~ewijze), provided such actions do not violate the law or other public regulations, and under the condition that they do not violate the rights of other persons. It embodies the greatest degree of autonomy over property objects that is conceded to the individuals in Holland and it is the quantitatively most complete relationship. 57 As the relatively most complete right it embraces allother kinds of property relationships in the sense that allothers must be derived from the eigendom. As Pitlo has stated, it would, however, be wrong to consider this elasticity as the criterion of the eigendom. For relationships which have provisional character in relation to the eigendom can also be residual relationships in relation to lesser provisional rights. This is, e.g., the case

PROPERTY IN SOCIAL CONrINUITY

with the inheritable lease, erfpachtrecht, in relation to the right of usufruct, vruchtgebruik (see Pitlo 1965: 125, 1966: 302 f.). In practice, the eigendom can be reduced to the letters of the concept, if comprehensive provisional relationships are derived from it, or in the case where eigendom is given as security for debts, where the new owner is severely restricted in his autonomy over the eigendom-object (Pitlo 1965: 123). The basic characteristic of eigendom is that the eigendom-relation is unlimited in time, whereas all other property relationships are provisional in time (Pitlo 1965: 123, 126).58

2. Mede-Eigendom-CommunaZ OWnership Eigendom can be held by individuals but also by more than one person. In the latter case, the eigendom is cal led mede-eigendom. The explicit treatment of mede-eigendom in Dutch law (in the B.W.) is less systematic than in other contemporary western legal systems (e.g. in German law), but the Dutch law shares more or less the same rul es which obtain in most contemporary laws and which all are a mixture of the late Roman and the Germanic tribal laws. Two basic forms of mede~eigendom are distinguished:
1. property, where the fact of common eigendom holding is the only legal bond which unites its owners. This is derived from the Roman condo- minium and is called "free communal ownership", vrije mede-eigendom (in German law: Miteigentum, in English law: joint ownership)j
2. property, where the fact of common eigendom holding is the effect of a different cause, if there is another legal bond which united the owners, such as the fact of being heirs to the same person. This is derived from the Germanic "Gesamthandseigentum" (Dutch: gezamenhandse eigendom) which is called ''bound communal ownership", gebonden mede-eigendom (In German law: Gesamthandseigentum, in English law: common owners hlp " ). 59 The two forms of communal eigendom are subject to different legal consequences with respect to the divisibility of the eigendom relationship and to the degree of the autonomy granted to the individual communal owner. Division is the legal action by which the common or joint ownership is dissolved. Vrije mede-eigendom can always be divided. For ge~ bonden mede-eigendom there are no uniform rules. The division of inheritance, one form of gebonden mede-eigendom, for instance, can always be demanded (art. 1112 1 B.W.), whereas marital property cannot be

QF PROPERTY RELATIONSHIPS 205

divided as long as the marriages persi~ .. As a general rule it may be stated that the division is always possible if the legal bond which unltes. t h e owners 15. d· 1550 I ve d. 60 As regards the autonomy to dispose of mede-eigendom, there is a basic difference: With respect to vrije mede-eigendom,each owner has his share in the communally owned objects, which is itself a separate property object of which he can dispose of freely (Pitlo 1965: 150). With respect to gebonden mede-eigendom, each owner has the full right to the whole eigendom-complex, but is restricted by the equally full rights of the others. The individual cannot dispose of this kind of "share" (Pitlo 1965: 150). But the law is not explicit in this respect. The gebonden mede-eigendom developed out of the Germanic Gesamthandseigentum. This was characterized by the rules, that only all owners could dispose of the property together, that no individual owner could dispose of his share, and that there was the institution of accrual, aanwas. Aanwas meant that if one of the owners left the common bond of property holding, his ideal share feIl to the other owners (Pitlo 1966: 467). The institution of accrual has in the meantime been abolished in most forms of communal property. In inheritance, accrual still occurs if, in the case of testamentary dispositions, one of the testate heirs has predeceased the others. His part accrues to the other testate heirs (art. 1049 B.W.; Pitlo 1965: 151).

3. Marital Property Relationships Unless the spouses make different prOVISIons in a contractual agreement (huwelijksvoorwaarde) 61, the marriage creates a form of communal property which does not correspond to the two forms of gebonden or vrije mede-eigendom. 62 The communal marital property (algehele gemeenschap van goederen, art. 93 B.W.) includes the spouses' property before marriage and in principle all property which they acquire during marriage. Property acquired by one of the spouses by donation or inheritance in principle also becomes communal property, unless the donor or testator has explicitly directed otherwise (art. 94 B.W.). As in gebonden mede-eigendom, there are no definite fractions of the two owners in the individual property objects or the property as a whoIe, but the communal holding of the property relationship is sharply dissociated from the rights of control and disposition: Each spouse has the full right to control and to dispose of those property objects which came into the communal property from herjhis side (art. 97 I B.W.), and each spouse can invalidate

IN SOCIAL CONflNUITI

a legally relevant action of the other spouse over property objects which he/she had brought into the conmunal property, unless it was an "act ion of ordinary control" (daad van gewoon behee'l') or unless the third party acquired the property bona fide (art. 98 11 B.W.).

4. Inhentanae In Dutch law, the individual's capacity to be a holder of a property relationship ends with his death. The deceased's property relationships are continued by his heirs. This transfer is effected in and through law. This holds true for both intestate and testate forms of inheritance. Unless the property holder makes directions as to who shall continue his property relationships, the law provides the rules which determine who th e h e1rs.are. 63

a. Intestate Inheritance

The Dutch law of intestate inheritance calls the following groups of relatives as heirs in successive order (see Pitlo 1966: 430 ff.):

1. The first group is constituted by the spouse and the children, each of whom inherits one half of the property. In the case of several children, the childrens' portion is divided into equal shares. If the deceased leaves no children or no spouse, the spouse or the children respectively receive the whole inheritance (art. 899, 899a B.W.). The principle of representation functions in the descending line: For a predeceased descendant, his or her share is taken by his or her descendants (art. 888, 889 B.W.) •
2. If there are no persons of the first group, the heirs of the second group inherit. This is constituted by the parents and the siblings of the deceased. In principle they are each allotted an equal share: The parents inherit 1/4 each and the rest is divided in equal shares among the siblings. But if there is only one sibling, the parents and the sibling inherit 1/3 each of the property (art. 901 B.W.). The principle of representation is also applied to the heirs in this group. If there are no heirs of the first two groups, the inheritance is divided. One half is for the patrilateral, one for the matrilateral relatives (art. 900 I B.W.). They inherit in the following order:
3. In the two groups of relatives, the direct ascendants have priority. They form the third group, whereby the cIos er ascendant excludes the

OF PROPERTY RELATIONSHIPS 207

more distant one (art. 900 11 B.W.).

4. Only if there are no direct ascendants, the lateral relatives (zij- verwanten) come to inherit, who form the fourth group of heirs. Here, too, the closest relatives exclude the more distant ones. Relatives are recognized as (potential) heirs until the 6th degree. If there is no heir in one of the groups, the whole inheritance is inherited by the other group of heirs. If there are no relatives to the sixth degree, the inheritance falls to the State (art. 879 11, 1172 ff. B.W.). Before 1923, the law of intestate inheritance put much greater emphasis on kin as heirs. The range of relatives who could be heirs extended to the 12th degree. The inheritance by the spouse was virtually excluded, for spouses were only called to inherit if there were no relatives. Only in 1923 (with the introduction of art. 899a B.W.) was the spouse given the same status as the children,and the range of the relatives who could inherit was restricted to include relatives to the 6th degree only (Pitlo 1966: 430).
   b. Testate Inheritance The property holder can also direct his property to fall to other pers ons than the legal heirs in a testament. Testaments are revocable until the death of the property holder and only take effect with and through his death. The testator can invest the beneficiaries as heirs, whose status then equals the status of legal, i.e. intestate heirs. But he can also make a legaat, a legacy, by which he allots some of his property to specified persons. The legatees do not have the status of heirs but only are given a claim against the heirs with respect to the property specified in the legaat.
   5. Donation and Contractual Inheritance In Dutch law, donations are contracts. The donor gives property to the donee irrevocably and without contraprestation (art. 1703 1 B.W.). Donations may only be made inter vivos (art. 1703 11 B.W.) and with respect to property which is held by the donor at the time of the donation (art. 1704 1 B.W.). The new family law of 1969 (S. 1969: 257) introduced an important exception to these general principles: It allows spouses to make donations to each other in the marriage property agreement (huwelijksvoorwaarde, art. 146 I B.W.). These donations may com-

IN SOCIAL CONTlNUI1Y

prise a part or the whole of the donor-spouse's inheritance (art. 146

11). Such donations are in principle irrevocable (art. 146 111) and need not be explicitly accepted by the donee (art. 146 IV B.W.). Although the law treats these transactions as "donations" (giften), they amount, in fact and in law, to the investment of the donee-spouse as an heir. In the case of such donation, the donee-spouse does not acquire a claim against the heirs, but becom:5 heir him-or herself: The principle of saisine (see Note 63) applies in the same way as in the case of testate or intestate inheritance (Klaassen, Eggens and Luijten 1973:
332).
6. The Restriation of the Individual's Autonomy The individual's autonomy to dispose of his property by testament or donation is quite severely restricted in Dutch law. The most decisive restrictions are contained in the rules which protect the so-called legitimarissen (art. 960 H. B.W.), the "legitimate heirs".64 The law allots to some persons the right to a legitimate portion of the inheritance. This is a fraction of the portion which these persons would have inherited if the property holder had made no testament. The pers ons thus protected are the direct lineal descendants and ascendants of the property holder: Legitimarissen therefore are found in the first three groups of intestate heirs: In the first group the children or their descendants, in the second the parents, in the third group the other direct lineal ascendants of the holder. The spouse, although placed in the first group of intestate heirs is (other than e.g. in German law) no legitimate heir. The legitimate portions are the following: Legitimate heirs in the ascending line are always entitled to 1 of their intestate share as legitimate portion (art. 962 B.W.). For children, there is a differentiated regulation (art. 961 B.W.): If there is only one child, it is entitled to 1 of its intestate share. Two children are entitled to 2/3 of their share, and ~n the case of three or more children, the legitimate portion amounts to 3/4 of the intestate portion. The rul es protecting the legitimarissen primarily pertain to the field of testamentary dispositions. However, the testamentary dispositions which violate the rights of the legitimarissen, are not automatically void. They aan be invalidated at the request of the legitimate heirs to the degree necessary to fulfill their claims (art. 967 B.W.). If there are no legitimate heirs, the testator can dispose of all his property

by testament (art. 964 B.W.). But the retroactive restriction of the individual's autonomy does not only affect testaments. It can also affect donations which were made in accordance with the donor's legal capacity and which had become effective during his lifetirne. Art. 967

B.W., which lays down the legitimate heirs' right to invalidate the testator's legal actions, makes no distinction between testaments and donations inter vivos: It speaks of "gifts, either made by testament or by donations inter vivos". And art. 960 B.W. provides that the legitimate portion of the legitimarissen "is that part of the deceased's property, of which the deceased was not entitled to dispose by donation during his lifetime and by testament".
65 In order to assess the value of the

"total inheritance" and the fractions that constitute the legitimate portions, all property which the deceased holder has given away as donation during his lifetime will be added to the actual inheritance (art. 968 B.W.). There is no temporal restriction. In principle, aZZ donations can be included. 66 But these donations will be taken into account only insofar as they are necessary to fill up the legitimate portion. Primarily, the property disposed of by testament is used. If donations are taken into account, one starts wi th the last one and, if necessary, proceeds further into the past according to the chronological order of the donations (art. 971 B.W.).

I I. WRITTEN LAW IN MINANGKABAIJ PROPERTY RELATIONSHIPS

The inroads which written laws have made into the Minangkabau system of property relationships have mainly affected property relationships to land.

1. The Decree of 1853 Concerning the Pusako-Eigendomsakte In 1853 a Governmental Decree was issued for the West Coast of Sumatra, which allowed the establishment of an "eigendoms-akte", an ownership-deed for irnmovable property, the so-called pusako-eigendoms akte (Gou- vernementsbesluit 7.3.1853, S. 1853: 14a). Irnmovable property which was harato pusako could be registered as eigendom and partly became subject to Dutch law. Art. 2 of the Decree said: "In the case of a transfer of a part or the whole of some irnmovable property which belongs to a rnember of the Native population of Sumatra's West Coast, and of which an ownership-deed has been established, the highest local authority shall issue the docurnents of evidence which may

IN SOCIAL CONflNUITI

be required for the inheritance, the division of the deceased's estate, or for other transfers, af ter a consultation with the competent regents, *suku-*and family heads."67 The registration was carried out by the Governor's office. The oldest living fernale of a kaum was usually registered as owner. Af ter her death, the names of her daughters were entered as new owners and heiresses. A rernark was added that the property had been received as inheritance (ten erfenis) (Sarolea AB 27: 277). The Decree was amended in 1910. The task of registration was transferred to the reahter-aommissaris, the "examining rnagistrate", and the method of registration was changed. The whole kaum was entered as owner specified by its mamak kepaZa waris who acted as family head (Sarolea AB 27: 273, 1920: 124). Some of the legal consequences of such registrations seem to have been generally acknowledged. The harato pusako registered could be mortgaged and traded outside the native world. The borders of the property were also registered in the kadaster, the land registry. But in principle such property became subject to Dutch formaZ law only, i.e. the substantive legal consequences attached to such property remained those of adat law (Sarolea AB 27: 275). This mixture of Dutch law and adat gave rise to very conflicting interpretations. In the sixth Chapter it will be shown how these were resolved in practice.

2. The Agrarian Aat of 1870 A similar provision was introduced for the whole Colony in 1870 through the Agrarian Act (Agrarisahe Wet, S. 1870: 55), which contained a series of amendments to art. 62 R.R. (1854) (later art. 51 l.S.). Art. 62(7) as amended by the Agrarian Act read as follows: "Land, which is held by a native Indonesian with the right of miZik shall, upon proper application of its owner, be converted into land with right of eigendom; with such conditions and limitations as shall be prescribed by Ordinance and noted on the land deed, i.e. conditions regarding the owner's responsibility towards the State and village, and limitations of his power to sell such land to non-natives" (Gautama and Hornick 1972: 76). This law was implemented for Java and Madura in 1872 (S. 1872: 172). Only individual holders were permitted to convert miZik rights into the new form of "agrarian ownership", agrarisahe eigendom (Gautama and Hornick 1972: 87). Although it was a right in "Indonesian" land, it had to be registered at the Colonial Land Registry and could be mortgaged according to the rules of the Dutch Civil Code. But the convers ion provisions were 50 complex that only few Indonesians took advantage of

the provision (Gautama and Hornick 1972: 87).

3. The Ordinance Prohibiting the AZienation of Land In 1875, an Ordinance was enacted (Grondvervreemdingsverbod, S. 1875:
179) which prohibited the alienation of land held under adat rights to members of the non-Native population groups (cf. Gautama and Hornick 1972: 83).
4. The DecZaration of State Domain The most radical violation of the adat system of property relationships was contained in the so-called Domain-Declaration. Art. 1 of the Agrarian Decree in which this declaration was contained68 provided "that all land which is not proven to be held with the right of eigendom shall be deemed to be the domain of the State". The main purpose of this provision was to provide the Colonial gavern- ment with a legal basis for conveying western (Civil Code) rights in land to foreign entrepreneurs. For according to Dutch property law, only the owner of land could transfer (provisional) Civil Code rights. The position of the State therefore had to be converted into that of an owner (eigenaar) (cf. Gautama and Hornick 1972: 80). For Sumatra, a separate domain declaration was issued in 1874, which differed somewhat from the general declaration which was implemented on Java and Madura. Art. 1 said: "All wasteland in the Sumatran districts under direct Government rule (GouvernementsZanden) are part of the State's domain, unless members of the indigenous population exercise rights over it which are derived from the right of reclamation of unused land (ontginningsrecht). Except for the cultivation rights of the population, the right of disposal is exclusively vested in the Government. ,,69 This meant for Minangkahau that the tanah uZayat was considered to fall under the domain of the State. 70 But in practice, the Government of West Sumatra was very reluctant to enforce these provisions as they were 50 much in contrast with adat (cf. AB 11: 88, and the story in Chapter 5: 259 ff.),71
5. Mortgages In 1908 a law was enacted which permitted Indonesians who held "Indonesian" land, i.e. land held in accordance with adat or agrarisch eigendom, to give mort gages (credietverban~) on their land to specified European banks (S. 1908: 542, 1909: 584, for details cf. Gautama and Hornick

108 ff.). The banks were only specified in 1937 (S. 1937: 191).

6. The Basic Agrarian Law of 1960 The Government of Indonesia'made an effort to abolish the dualistic landlaw with the Basic Agrarian Law of 1960 (Undang2 Pokok Agraria, law S of 1960, LN 1960: 104).73 The new law is professed to be based upon adat law, but adat law is applicable only in so far as it does not contradict: the national interests of the State, the principles of Indonesian socialism, the regulations of the Basic Agrarian Law, -other statutory regulations, stipulations based upon religious law (art. S). The provisions of the Basic Agrarian Law are, however, to a great extent modelled on western property law. The law recognizes some clearly defined relationships to land, the most inclusive of which is the hak milik, which more or less corresponds with the Dutch eigendom (Gautama and Harsono 1972: 39 ff.). All previously existing land rights are to be converted into the rights prescribed by the law. Hak milik can come into existence in three different ways (see Gautama and Hornick 1972: 97 f.):
1. Rights under adat law, which recognized hak milik (in adat), e.g. in the form of newly cultivated land, can be registered under the Basic Agrarian Law if the holder can prove that he has complied wi th the adat provisions.
2. The Government may grant hak milik to citizens or corporations out of the State Land.
3. Most hak milik is created by a conversion of property rights which existed before the introduction of the Basic Agrarian Law. According to t h e converslon-provlslons. " 74 th e f ormer rlg. hts 0f'e~gend om,agrarisch eigendom and milik (inlandsch bezitsrecht) can be automatically converted into hak milik, provided that the holders of the old right are also qualified to hold the new rights. Of the many further provisions concerning the sale, transfer, and pawning of land, one provision is of particular importance. Section 7 of law S6 of 1960 (reprinted in Harsono 1973: 236) reads: "AgricuHural property held wi th the hak gadai (which has been pawned) for 7 years or more at the time at which these regulations come into force, has to be returned to its owner within a month af ter the last harvest, without any enforceable claim to the uang tebusan (the pawning

SlUTI)."

The introduction and irnplementation of the Basic Agrarian Law and its innlUTIerable regulations has had little success 50 faro In Minangkabau in particular, hardly any land has been registered under the new provisions (see below Chapter 5: 281 ff.). The provision affecting the free return of pawned property af ter 7 years was applied by some courts during the first period af ter the introduction of the law (case 318 of 1963 PN Padang, 65 of 1963 PN Payakumbuh). Since the middle of the 60's,however, the courts have stopped enforcing the provision as it is obviously un- suitable for the situation in Minangkabau. 75 The old regulations concerning mortgages on Indonesian land were not repealed by the Basic Agrarian Law, and at present there is some legal uncertainty (Gautama and Hornick 1972: 109) as to which rules should govern the field of securities given for loans. Most state banks in West SlUTIatra still accept harato pusako land as security, if all kaum members have given their consent. These credit relationships are partly governed by adat law, partly by Dutch law and government regulations.

7. The Marriage LCIlJ) of 1974 Some regulations concerning marital property law were introduced by the new marriage law which was enacted in 1974 and which is to be applied uniformly throughout all Indonesia since1.10.1975 (Undang2 PerkCllJ)inan, Law no. lof 1974. On the law see Prins 1977, Soewondo 1977, Ismuha 1978). In principle, the marital property relationships remain based upon adat. Property acquired during the marriage becomes common property (harta bersama). Husband and wife may dispose of this property only if the other spouse agrees to it. Property brought into the marriage by one of the spouses (harta bCOJJaan), as we 11 as property acquired by one spouse during the marriage by way of gift or inheritance, remains under the exclusive control of the spouse concerned, and each spouse can dispose freely of his or her property (art. 35 and 36). Upon divorce, the common property is divided according to the "law of the parties", i.e. according to the adat law, religious law, or other law which applies to them (art. 37). For polygamous marriages the rules are the following: The second and further wives have no rights to the property which already had been acquired by their husband and his first wife. All wives have an equal right to the property which has been acquired af ter their respective marriage (art. 65).76

LEVEL OF PERFORMANCE I: THE FlJLFILMENT OF THE RlNCTION

A. INfRODUCTWN In this chapter I shall describe and analyse instanees in which Minangkabau women and men are engaged in property affairs; episodes in people's lives in which they successfully or in vain attempt to establish situation-images of continued property relationships. I shall try to re late as much as possible of the socio-economie and socio-political background in which the events took place, and I shall also indicate the kind of information upon which my reconstruction of the stories is based. This may help the reader to understand better the activities in the stories, and at the same time provide him with at least a minimal check on the interpretation which I have given to them. The stories told in the first part of this chapter have been orde red according to the networks of interpersonal relationships which are typical in Minangkabau; typical in so far as all processes of diachronie transfers must occur in them. The classification of the stories thus closely corresponds to the one by which the Minangkabau themselves would indicate the context in which actual cases of diachronie transfers take place. These are:
1. The relationships within a kaum.
2. The relationships between two or more kaum.
3. The situation where a buah gadang is extinct.
4. Relationships between two or more social strata.
S. The relationships between children and the (their father's) kamanakan, between anak pisang and bako.
6. The relationships between children, particularly between the children of one man and different wives.

PROPERTI IN SOCIAL CONTINUITI

These stories show the Minangkabau as actors in the social processes which involve the relationship between the behaviour of the individuals and the factors which influence it,and the conceptions through which they explain and justify their actions and wishes. To borrow the words by which Turner has characterized the social drama: '1he social drama itself represents a complex interaction between normative patterns laid down in the course of deep regularities of condition- ing and social experience, and the immediate aspirations, ambitions, and other conscious goals or strivings of individuals and groups in the here and now" (1968: XXV). This complexity is of a particularly high degree in Minangkabau, as there is a plurality of cognitive and normative patterns that can be employed by the individuals. As Tanner has pointed out, legal pluralism in Minangkabau (as, of course, elsewhere) "provides interesting opportunities of dispute strategy" (1969: 46), and this certainly applies to the dispute strategies in property and inheritance affairs. Yet,as has been outlined in Chapter 1, we shall adopt a wider perspective: Legal pluralism provides opportunities for the strategy of establishing new unproblematic situation-images in general. The social processes which achieve this goal may involve disputes, but they mayalso be quite un- exciting trouble-free affairs. Though most of the stories in the first part of this chapter have a highly dramatic form, they are not treated as "social dramas" (Turner) or ''property dramas" of the kind which Turner has analysed among the Ndembu (1957, 1968: 91 ff.). The analysis of the processes of diachronie transfers does not use the morphology of human behaviour as its referent, but the ''naked'' function of diachronie transfers of property relationships, which is dramatic only inasmuch as it involves "schism and continuity" àf property relationships. The stories will illustrate nearly the whole range of the modalities by which property relationships can be transferred in Minangkabau. It will be seen that the actors employ the various conceptions provided by the three systems of property relationships and, of course, their own innovative syncretisms. In this respect, too, the stories can be taken as apt illustrations of Minangkabau inheritance behaviour. They cannot, however, be understood as indicating the statistically dominant behaviour as far as the content of the concrete solutions of the processes is concerned. I am quite aware that for a complete understanding of property and inheritance affairs in Minangkabau such impressionistic stories, impressionistic when considered in relation to the statistically dominant outcome, are not sufficient.1 One would have to know the functional

FULFILMENT OF THE FUNCTION 217

value of: the various modalities of diachronic transfers in relation to the overall maintenance of property relationships through time, the cognitive and normative conceptions used in the various diachronic transfers, the agents of socio-political authority who validate the new situation-images of continued property relationships.

Further, we would like to have a differentiated picture of: the conceptions employed by the main actors in these processes as weIl as of those conceptions in which the new situation-image is finally conceived, the kind of property objects involved in these processes, their legal status, their natura I characteristics, and their economic value.

Finally, we should demand a quantitative statement on the question of what makes people (of which sex, age, traditional or modern social status and of which economic means) employ which mechanism of diachronic transfer, which cognitive and normative conceptions, in what sorts of circumstances? In the second part of this chapter I shall try to deal with these questions. There, I describe and analyse the various modalities of diachronic transfers in isolation, and I shall try to indicate the functional values of the factors which I just have mentioned. Yet I am afraid that the questions which I have outlined above must largely remain unanswered. The available data, including the data we have collected during our field research, are much too meagre to yield a systematic quantitative description and analysis. Systematic statistical research would by far have exceeded the manpower of our husband and wife team, and it would also have presupposed most of the knowledge which is laid down in this study. Some statistical data can be given, but for the rest I must rely on a qualitative analysis, which should, however, be related to the wider frame of reference which has been outlined above.

PROPERTY IN SOCIAL CONflNUITY

B. STORIES OF PROPERTY AND INHERITANCE AFFAIRS 2

I. 1HE SITUATION IN A KAUM

In what follows I shall describe the property relationships within the kaum on whose harato pusako we lived during our stay in CKL. The genealogy of the kaum members and the location of its harato pusako and the houses of the kaum members are shown on the following charts. The numbers in the text refer to the "cases" which will .be discussed aft er the description.

1. Thp History of the Kaum of Dt. Kayo nan Gadang Sometime in the last century, a man came to Candung with sisters and kamanakan. He was a stranger (orang datang). As he wanted to settle permanently in the nagari, he had to associate (maZakok) with one of the existing panghuZu. He was accepted as kamanakan (dibawah pusek, bataZi budhi) by Dt. Hitam, one of the oldest panghuZu of hindu Guci 111 Saniniek. Dt. Hitam gave land, the T 1 (the strip of land number 1 on the map, p. 221), to his new kamanakan, which was located in the area of the former tanah uZayat (1). Af ter some time, the new kamanakan's group increased, and it was decided to give it the status of a buah gadang. The stranger (or his kamanakan, or his grandnephew?) was given a panghuZu title, Dt. Kayo, and he forthwith was considered one of the 100 recognized members of the Karapatan Adat Nagari (2). The group built two rumah gadang at first, one near the Simpang Tigo and one in the place where now houses 3 and 4 are located. Some time later, a rich man from suku Guci '~ecame punah (extinct)" (perhaps it was a buah gadang that became extinct) and he accepted Dt. Kayo as heir -wi th the consent of the other buah gadang of Guci 111 Saniniek (3). Through this, Dt. Kayo received much new harato pusako: The T 2 and T 3 lands in the area of Salasa and some II\Ore land in the area of V Kaum, some hundred meters to the west in the naga- rio Some of his kamanakan (a jurai) II\Oved to V Kaum; then they tore down their rumah gadang near the Simpang Tigo and built a new rumah gadang in V Kaum. This is said to have occurred in 1870. Later, one of their jurai moved to the area of Batu Balantai and built a rumah gadang on land which they had bought. When the first Dt. Kayo had died, the jurai in Salasa and the one in V Kaum both wanted to install the successor. No consensus cculd be reached, 50 i t was decided that the buah gadang of Dt. Kayo should be split, and that bo1h groups should install a Dt. Kayo. The one in Salasa was called Dt. Kayo nan Gldang (Dt. Kayo the Great One). the one in V Kaum Dt.

RlLFILMENf OF 1HE RJNCfION 219

Kayo nan Ketek (Dt. Kayo the Small One) (4). The division of the property seems to have gone without difficulties: Dt. Kayo nan Ketek kept the property in V Kaum, plus some additional fields in Salasa near their old rumah gadang, and the rest was kept by Dt. Kayo nan Gadang. The group of Dt. Kayo nan Gadang, about which I shall mainly report here, continued to live in their rumah gadang. As the kamanakan increased, additional small houses were built by the sisters and daughters during the course of time. The rumah gadang was, however, only torn down in 1972. Rancak, who hàd married a man from suku Pili, had obtained some land from the bako of her children, by hibah, to be turun temurun in her jurai (5). A rumah gadang was built, which bumt down twice, and finally house 10 was built. At present, Kanang, her daughter Mumi and Mumi 's current (her third) husband live there with their only child. I. Gagah, the mamak of the kaum, long a widower, lives in the surau in Pakan Kamis. Syamsiah, the daughter of Nurmi, built a house (H 9) on T 3, where she now lives with her two daughters and their husbands. When Fatimah married, the house was too small for the new family, and Fatimah went to stay with her husband who lived in a different part of the nagari. This was the only case of a "virilocal" marriage we came across in this part of CKL, and people hastened to say that it was for the time being only, and that they were ashamed that such a thing should happen at all. During our stay in CKL, the house was torn down and reconstructed. M- terwards, Fatimah and her husband moved in there too. Selamah, the mother of Jusri built a house (H 1) on T 2. Later, another house was built, H 2, when Selamah's daughters had married. Jusri kept H 1, her sister Sul lived in H 2. In H 1 now live Jusri and her daughter Nursilahwith her husband and their two children. Nursilah's husband's five children from his first marriage are frequent guests in their house. In H 2lives si Mar with her five children. Her father, Angku Payuang Ameh (suku Sikumbang) stayed there during the last years of his life, and he died in this house during our stay in CKL. Dawiah and her children built house 5. Her daughter Dewi spent many years outside the nagari, as her husband, Dt. Batuah Rajo (suku Selayan) was a teacher. She is a widow now and mostly lives in Payakumbuh where her youngest daughter, si Mah, who is still unmarried (24 years old), is a midwife. The other daughter of Dawiah, Kalek, died early, and there was enough room in H 5 for the whole family. Rakiah, who married Dt. Batuah Rajo, a kamanakan and the successor of her father, moved out

[ol. 0 Subaidah iSNursiah ~

~ St. Tungke

Elok

Mantari Basa Nurmi St. Mantari Basa Ana ~

Fatimah-I:6

A. Kayo
A. Mantari Bas a Syamsiah Dt. Mantari Basa

221 THE FULFILMENT OF THE FUNCTION

The Property of Dt. Kayo

VKAUM~ T3 PAKAN KAM IS SALASA

100 150 I I

H house of Jusri H 2 house of si Mar H 3 house of Elok H 4 house of Upiek H 5 house of Etek and Rakiah H 6 house of Rakiah H 7 house of si Mah H 8 house of Subaidah H 9 house of Syamsiah H 10 house of Kanang and Murni H 11 house of Syamsiah H 12 house of Lambok

6 7 7 8 8 9 9 10 11 12 10 13 11 8 12 @] 13 m 6 9 14 7

house 0 [§] 8urau

rice-fields n

T turihan, strip of land running downhill property given by hibah h

SOCIAL CONTlNUITY

af ter her marriage. She and her husband, who is an administrative officer, spent many years outs ide the naga.r>i. When they returned to the nagari , they built house 6. H 6 was originally built as a rice-mill (huIler, a rice-mill with a motor-engine; water-mills are kieir pooi), which Dt. Batuah Rajo had set up. But the business did not go weIl, and now they use the H 6 as their house. In H 5 at present live Etek and her children. Rakiah's half is used as a surau for the boys of the kaum: Rakiah's two eldest sons, Etek's son and some of their friends sleep there. Etek's husband is a rare guest in the house as he usually stays with his first wife. House 7 had only been built in 1973 by Dewi and her jurai. It is the house of si Mah. Since si Mah is still unrnarried and works in Payakurnbuh, it was ternporarily used as a surau, too. Rakiah and Dt. Batuah Rajo had thought of moving in ternporarily, if it had not been for the trouble with their neighbours, Elok and Pak Rajo. They had also thought of renting it out to the school children, the nurnerous pupils from other parts of Minangkabau (and Indonesia) who had come to CKL to study at the famous Islamic School. As the house was not yet fully finished and furnished, we were able to rent it and stayed there during 10 months. Jarnilah and Jinah continued to live in the rumah gadang. Jarnilah eventually built a small house on the field T 3: 15. But there had been trouble about this, and 50 she built a new house, H 3, in which now Elok and Elok's husband with their 6 children live. When Elok and her older sister, Nursiah, married, a new house was built for Nursiah, H 8. Af ter Nursiah's death, her children continued to live there. The oldest, Subaidah, aged 20, is already married and has a son. Jinah and her daughters were the last ones to live in the rumah gadang. When the rumah gadang had becorne too old and had to be torn down, Upiek built house 4, in which she lives with her husband and her youngest son. The other kaum members live more or less permanently in the rantau. lti and her brother, the present Dt. Kayo nan Gadang, live in Pakan Barn. Dt. Kayo only rarely visits CKL. Iti's only son has died, and it is doubtful whether she will return to the nagari. Mantari Basa, Elok's brother, spent several years with his mamak Dt. Kayo in Pakan Baru, but returned in 1970 to marry and farm. St. Mantari Intan, the son of Jusri, is married in CKL, but mainly stays in Padang as a trader. Dewi and si Mah live in Payakumbuh, but it is hoped that si Mah will marry soon and return to CKL to live in H 7. Dewi's son, St. Batuah, lives in Padang, where he is a lecturer in biology at the University. He seldom visits CKL, but is

FULFILMENf OF 1HE FUNCTION 223

frequently visited by Rakiah's children. Si Jon, the oldest of his kconanakan, has started to go to the secondary school in Padang and currently lives with his mconak. Jas and Syamsinan, the sisters of Upiek, live in Jakarta, and Upiek's eldest son is living with them.

According to all group members, definite genealogical relationships exist between the two kaum of Dt. Kayo nan Gadang and Dt. Kayo nan Ketek; it is not remembered (or said) who the common apical ancestress was. But some other kaum members of Dt. Kayo nan Gadang who live in Pakan Kamis in house 11, are said to have no genealogical relationships with this group. It took us a very long time (about 4 months) to find this out. We were always told that one was saninik, "of one grandmother", wi th them. Understandably, we were not able to trace this ninik in the genealogy for we were told later that the group had moved to CKL from the Payakumbuh area and had associated (maZakok) with Dt. Kayo. When they settled in CKL, they had been given the T 4 as pusaka. The T 4 did not belong to Dt. Kayo before, but to a different buah gadang of suku Guci I II Saniniek. This pusaka, too, was now "under Dt. Kayo". Quite recently, the kaum had been enlarged by Lambok. Lambok is the wife of the mantari, the medical assistant. She originates from nagari

M. where she had belonged to suku Guci. When she came to CKL, she approached Anku Kayo,the (now deceased) brother of Syamsiah in house 11.
A. Kayo accepted her as kamanakan, but this was done without the knowledge of I. Gagah, the mconak-kaum. Only when A. Kayo had died, had Lambok approached I. Gagah and had been formally accepted as a kaum member. She and her husband live in house 12, which they have rented. They have not been given any land, for the kaum is much too poor to be able to give land away. But Lambok and her husband do not want to farm anyway, as her husband has his job. Lambok fulfils all social and kinship obligations of a kamanakan of Dt. Kayo.
2. The Sacia-PaZiticaZ Status of the Graups "According to adat", all kamanakan of Dt. Kayo are still "one". Al though the two Dt. Kayo-groups were frequently spoken of as if they were separate buah gadang, in terms of adat there is only one buah gadang Dt. Kayo. If Dt. Kayo '~as to go to adat" or to represent this kamanakan formally in the nagari, only one Dt. Kayo, "the Dt. Kayo", can go. Which of the persons wearing the ti tle Dt. Kayo should represent the group has to be decided by the two, and in principle they should rotate the

PROPERTI IN SOCIAL CONflNUITI

exercise of the panghulu-function. In the present situation, however, Dt. Kayo nan Ketek should,as he alone has been instalIed as panghulu. Dt. Kayo nan Gadang had been invested with the title af ter his mamak's death with the intention of making mati batungkek budhi (see Chapter 2:

87). But he has not yet carried out the installation ceremonies, and therefore is not regarded as a "panghulu", although he may wear the title. As Dt. Kayo nan Ketek lives in Aceh as a trader, his functions are performed by his panungkek, Dt. Mantari Basa nan Ketek. He attends most occasions, also those where only a panghulu should go according to adat. But as there are 50 few panghulu installed in CKL, people are glad to have at least a "Datuek" attend the meetings. Dt. Mantari Basa nan Ketek is the son of a panghulu, and he is married to a descendant of the last Tuangku Lareh of Candung, whose kaum is small and rich. All their harato pusako are given to "kamanakan" in share-cropping. Dt. Mantari Basa is an officer in the Forestry Department in Bukit Tinggi and thus has his additional independant income. He is said to be ambitious, and it is rumoured that he wants "to change with Dt. Kayo" in Aceh, i.e., that Dt. Mantari Basa should be installed as Dt. Kayo. Dt. Mantari Basa '5 official leadership of all kamanakan of Dt. Kayo is very much resented by the kamanakan of Dt. Kayo nan Gadang. "Dt. Kayo" thus is still "one", and according to adat the whole group still consists of urang saharato sapusako, people of one pusako-property. But the pusako has been officially divided. The group and property split is said to have occurred in the 20'5 of this century. The two groups are treated as kaum, and both have a mamak kepala waris. In the tax register of CKL, Dt. Kayo nan Ketek and I. Gagah are registered as such (6). Within the kaum of Dt. Kayo nan Gadang, the next split is imminent. There are definite tendencies that the descendants of Nurli will form one kaum for themselves: Pakih, the husband of Subaidah (house 8) of ten referred to Nurli as the ancestress of his wife's kaum and tended to leave out the descendants of Nurmi and Rancak. The feeling of ''not belonging together" anymore has also increased. During one of her very outspoken characterizations of her kaum members, Elok stated that "actually" they were already two kaum: "their" kaum (the descendants of Nurli) and the one with the descendants of Rancak and Nurmi. Elok had had trouble with
1. Gagah and Kanang: When her sister Nursiah had died, "they" had not come to the burial. When Murni, Kanang's daughter,married, Elok did not go to the ceremony. When Rakiah joined the discussion, there was a dispute, for Elok and Rakiah did not like each other, and neither did their

FUNCIION 225

husbands. Rakiah: ''You are lying. We are one kaum, and I. Gagah is our mamak kepala WariB". Elok: ''Yes, fonnerly we were one kaum, but now we are two. Our kepala kaum is Dt. Kayo. As he is in the rantau, St. Mantari Tntan, the son of Jusri, should be the kepala kaum. But as he stays in the rantau, too, the actual kepala kaum is Mantari Basa (her brother). Kanang and I. Gagah are a different kaum al ready, and Syamsiah (house 9) belongs to them, too. When they looked for a bridegroom (cari menantu) they did not ask us; and from us, nobody goes there anyrnore, not even Jusri, who is the eldest of our kaum". This was not quite true: When the house of Syamsiah was broken down and reconstructed (later), most of the kaum mernbers were there to help cook, arnong them Jusri, Elok, Etek, Rakiah and Upiek. But the next split is imminent. If the mernbers of the kaum Dt. Kayo nan Gadang wish to adhere to the kok limo kali turun-rule, they will have to wait for some more time. For the women, who are to be chosen as the apical ancestresses of the new kaum, only have four generations of descendants. But in about 10 years, the girls of the youngest generation will have married and have children, and then Nurli wil 1 have limo kaZi turunan, five generatioffi of descendants • The split will probably occur then (7).

3. The FPoperty Relationships It is not easy to recall how the relationships to their harato pusako have been for the generations of kaum members. Not all is rernernbered, and probably part of what is rernembered was considered by our infonnants to be ''without interest" for us. Besides, qui te different versions are remernbered. At present, the relationships between the jurai are bad, and as the brief history will show, they had been bad also in the older generations. In tracing back the history of the harato pusako of Dt. Kayo we can go back as far as the generation of St. Tungkek and his three sisters. The kaum split and the official division of the pusako between the two Dt. Kayo had not occurred then, and we can assurne that the T 1,2 and 3 were the ganggam bauntuek of the mother of Nunni, Nurli and Rancak. Their mother was still weIl off with all these harato. When the children were young, there was no reason to distribute the property; the daughters would work with their mother on their pusako. When Rancak married a man from suku Pili, her husband's kaum decided to give the young couple rice-fields as pambaoan, and a place to build a house on pusako of suku

PROPER1Y IN SOCIAL CONTINUI1Y

Pili. Later, it was decided that this property should be, as haI'ato hibah, turun temurun in Rancak's jurai. If her jurai should become extinct, it would revert to the buah gadang which had given the property. So when Rancak married, she was provided for. Nurli also married. She had four daughters, 50 she was given a rather large share of the property, the T 1. St. Tungkek, the only male kaum member, was allowed to use the T 2 for himself. Nurmi must have been still young and unmarried, for the difference in relative age is considerable: Nurmi's daughter Syamsiah is not much older than Rancak's and Nurli's grandchildren Kanang and Jusri. So there was no immediate need to provide Nurmi with pusako, and she probably continued to work with her mother on T 3 (8). St.Tungkek had pawned the T 2 (in 1915) to a man from suku Caniago, St. Tanameh. St. Tanameh later married Se I amah, St. Tungkek' 5 kamanakan. When afterwards St. Tanameh and Selamah had children, and none in the kaum wanted to redeem the fields for the whole kaum, Selamah "redeemed it for her children" (menebusi untuk anak) (9). It was not clear whether Selamah paid the redemption money to her husband, or whether her husband transferred his haI'ato pancaharian in this way to his children. The effect is the same: the T 2 is haI'ato turun temurun of the whole kaum, but through the investment of the money, only Selamah andher jurai are entitled to use and exploit the pusako. This was recognized by the other kaum members. But it was equally clear, that any other kaum member could, in theory, regain a part of the T 2 by paying a share of the original pawning sum to Selamah, i.e. now to her descendants. The T 2 was forthwith only worked by Selamah and, af ter her death, by Jusri and Sul. Af ter Sul '5 death, Jusri took over the complete control of the T 2 and does not share it with her sister's daughter si Mar. The T 2 is now worked by Nursilah and her husband. Sometimes, it is given in share-cropping, also to other kaum members. It is the common opinion, that si Mar will come up with her claim af ter Jusri's death, and all kaum members think it very ''bad'' that Jusri is 50 greedy as to cheat her own child (ZD) of her inheritance. The reason why si Mar avoids the conflict with Jusri and does not yet press her claim to the T 2 is that she herself is rather weIl off. She uses none of her kaum's haI'ato pusako, except when it is her time to work the T 1 (see below). Her father Angku Payuang Ameh had been a rich man. He had taken nuch scauah as pawning (as pamagang) for her benefit (10). When Angku Payuang Ameh died in her house in 1975, there had been no trouble about his inheritance. Si Mar continued to work the scauah he had taken in pawning for her.

FULFILMENT OF 1HE FUNCfION 227

Some other fields, which Angku Payuang Ameh had allowed her to work, had actually been taken in pawning for his kamanakan, for he had given the pawning-document to them. It was expected that the kamanakan would "take back" these fields af ter the next harvest, and nobody expected si Mar to oppose this. The harato pancaharian of Angku Payuang Ameh had been kept in the houses of his three wives, and each family kept what had been in their house (11). When in the 1920'5 the split of the two kaum Dt. Kayo occurred, the harato pusako were divided (dibagi), and each kaum now had its own harato pusako. At that time the children of Nurli and Rancak already had children and most probably the first grandchildren. Nurli's son had becor.le Dt. Kayo, one of the two who were instalIed af ter the split. The property, which formerly was held as ganggam bauntuek, now became the harato pusako of the kaum and had to be distributed by way of ganggam bauntuek between the jura i of the new kaum. Dt. Kayo seems to have been astrong mamak and had the decisive voice in the meeting in which the property relationships were rearranged. He favoured himself and his sisters, and paid much less regard to the children of his mother's sisters (12). The T 1 was given as ganggam bauntuek to Nurli and her children. It was decided that Nurli's children should use the T 1 per daughter in rotation (bagilir, baZega) for sawah-years. This seems to have been done over the years, and the original schedule is still adhered to: The T 1 is still "sawah balega" for the jurai formed by Nurli' 5 children (13): When i t is "Jamilah' 5 turn", Elok works the sawah, helped by her children, Subaidah, and Subaidah's younger sisters. Elok's brother, Mantari Basa, helps with the heavy work (ploughing, threshing). The harvest is shared between Elok and Subaidah. Mantari Basa is given a small share, as he normally works on the pusako of his wife. When it is "Jinah's turn", Upiek works the sawah. As she is the only of Jinah's daughters who lives in the nagari, she takes the whole harvest. It is too little anyway to give a share to her sisters in Jakarta. When it is "Dawiah' 5 turn", normally none of Dawiah' 5 daughters or granddaughters works the sawah. Dewi is too old, does not like farming, and lives most of the time in Payakl..Dl1buh anyway. Her daughter Rakiah, who also spent some time outside the nagari, also does not like farming. She has a small trade, selling rice, coconuts, oil, and salt in front of her house three times a week. She does not earn very much -according to her husband-, but he is glad because it keeps her busy. She is disliked for her sharp tongue, and only has a few customers. aften, even her

PROPERlY IN SOCIAL CONfINUIlY

cousins do not buy from her. Dawiah's other daughter, Kal ek, is dead, and her daughter Etek also does not like farming. She prefers to work in a snop at the main road in Candung, which is considered a shame for the whole kaum. Etek with her four children is badly off, as her husband completely neglects her and does not make great financial contributions to the household. So when it is Dawiah's turn, the land is usually given in share-cropping, mostly to Upiek. The harvest is divided. Upiek keeps one half and the other half is divided between Rakiah and Etek. When it is "Selamah's turn", Jusri, Nursilah and si Mar work the sCMah, and the harvest is divided between Jusri and si Mar.

The T 3 was also divided when the kaum split occurred. The fields T 3: 4-6 we re given to Dt. Kayo nan Ketek and are now farmed by the mother of Dt. Mantari Basa nan Ketek. Fields 1-3 are held by I. Gagah ''wi th money". I have not been able to find out whether these fields had formerly also been given to Dt. Kayo nan Ketek and later were pawned and then redeemed by I. Gagah. In any case,it is acknowledged that I. Gagah holds the pusako wi th money. He has gi ven i t in share-cropping to Fatimah, the daughter of Syamsiah and granddaughter of Nurmi (house 9). Nurmi's jurai had been neglected by Dt. Kayo when the kaum property was distributed. Nothing was given to her. Only af ter her son, A. Tumanggung, had grown up, he defended his mother's and his jurai's rights against Dt. Kayo and demanded a share of the harato pusako. Dt. Kayo refused, and the trouble resulted in a lengthy dispute which was finally decided in the State Court. Here Dt. Kayo lost, and the fields T 3: 14-18 were given to Syamsiah and A. Tumanggung as their harato pusako, which was now regarded as their ganggam bauntuek (14). Dt. Kayo himself had kept control of the fields T 3: 7 -H 9. These fields he gave to his daughter Sur by way of hibah for her lifetime (15). This hibah-business hag had the most unpleasant consequences. Dt. Kayo had married a woman from T. from a very different part of West Sumatra and brought her to CKL. His wife ''had no suku", and it was cautiously hinted that she was "jenis keerrrpat", of the fourth kind of kamanakan ,

i.e. a descendant of former slaves. As she had no suku, she was also rot adopted into a suku in CKL. Their daughter Sur was incorporated into the suku of her father, and had become a Guci-woman. The Guci and her father's kaum were, however, further treated as her bako. Dt. Kayo had given the fields T 3: 7 -H 9 to this Sur. When she married, Sur wanted to leave the house which had stood close to H 2; she probably did not

OF 1HE RJNCTION 229

feel very comfortable 50 close to her "sisters" and her bako. She "stu- pidly" wanted to exchange the hibah-property for money and she pawned the property, either to her bako, or to other people. ~fuen Sur later wanted to redeem the property, there was trouble, for Jusri and Syamsiah ( House 9) also wanted to redeem it (or, Jusri and Syamsiah wanted to re- deern i t and were not allowed to do 50 by Sur). In any case, this part of the story has not become clear despite several interviews and informal chats. Syamsiah, A. Tumanggung, and Jusri claimed that Sur had no more rights to this pusako. According to most vi I lagers, Sur had been in the right. The hibah had been in accordance with adat, and Sur had the right to the sawah, i.e., to use and exploit it, to pawn and to redeem it, as long as she lived. Only af ter her death would the property revert to her bako. But Jusri and Syamsiah took the case to court. They took it straight to court, and there was no previous at tempt to settIe the dispute in the nagari. ~le would have been terribly ashamed if this dispute between the children and their bako had been discussed in the Karapatan Adat. The other kaum members, too, did not join in the dispute, feelinz ashamed at Syamsiah's, Jusri's, and A. Tumanggung's behaviour. In the first instance, Jusri and Syamsiah lost, as all witnesses from CKL confirmed the validity of the hibah. But they appealed the judgement, and the appeal court reversed the judgement. For the other kaum members the reason was clear: bribery. A further appeal of Sur to the Supreme Court proved unsuccessful. So Jusri and Syamsiah had won more sawah (16). Jusri took the fields T 3: 7-10, Syamsiah the fields T 3: 11- H 9. Jusri works this land with her daughter. Syamsiah, however, had to pawn most of her property in order to finance the suit against Sur. So the fields T 3: 14-17 had been pawned to people of suku Pili, and af ter the suit, field T 3: 13 was pawned to Dewi. It is currently used by Dt. Batuah Rajo, Rakiah' 5 husband, who plants peanuts on i t. Jusri thus was quite rich in cornparison with her kaum relatives, and this was very rnuch resented by the others, who regarded her as greedy and unsocial. She had all this sawah, but she did not think of sharing it with her sisters! She even cheated her own daughter, si Mar. The other kaum members also thought it unjust that Jusri insisted on taking part in the rotational use of the T 1. This ought to be changed: all of Nurli's descendants were ganggam bauntuekholders and the use of the sawah should be rearranged. Elok's elder sister Nursiah had demanded that a meeting be held and the use of the T 1 be reconsidered. But then Nursiah had died. r. Gagah was a weak man, and Dt. Kayo was in Pakan

IN SOCIAL CONTINUITY

Baru and did not care about his kamanakan anyway. Besides, he was a brother of Jusri and would not do anything against her. But perhaps af ter Jus ri, 5 death ... (17). Matters had been worst when the decision was taken to build a house for si Mah (H 7). It had been planned to build it on field T 1: 6, which was not used for rice-cultivation, but for bananas and some cinnarnon trees. But Jusri, who more or less controlled this property, too, had refused. She had made a scandal and torn her blouse! Her younger brother, Dt. Kayo, was unable to convince her that the house must be built there; 50 finally the house was built where it now stands, on the T 1. A whole rice-field had to be used for this, which was very much resented by the other kaum members, for the kaum did not have rrruch s(J);)ah anyway. The real blarne was put on Jusri and Dt. Kayo, but rrruch of the resentment was directed against Dewi, who had "stolen" the s(J);)ah and did not mind losing i t for the kaum, as she herself did not farm and did not depend on farming (18). Feelings were still bad when we moved to CKL. Elok and Pak Rajo,in H 3, had "forbidden" Rakiah and her husband Dt. Batuah Raj 0 to use their yard as a path to H 7. They did not like each other, anyway. Raki ah, her mother, and Dt. Batuah Rajo were thought to be giving themselves fine airs, being too good to work on the s(J);)ah, sending their children to secondary schools, and trying to become important in village polities. Dt. Batuah Rajo had been instalIed as panghuZu two years ago, he was the tambang adat and chairman of the Karapatan Adat Nagari • Besides, he was an administrative official in the information department in the nearby capital-nagari of the Kecamatan. Pak Rajo was a good friend of the WaZi Negeri, who was an "enemy" of Dt. Batuah Rajo. There had also been trouble about the house with Syamsiah and Dt. Mantari Basa in Pakan Karnis (H 11), who held the T 4 between H 7 and the road. Although i t was fully accepted that they held the T 4 for their exclusive use, there was a constant bickering between Syamsiah and Rakiah concerning the exact border between T 1 and T 4 in front of H 5 and 6, where Syamsiah had planted bananas on field T 4: 8. Rakiah claimed that Syamsiah had used about 30 cm of T 1, Syamsiah said she had not. I. Gagah had not been able to achieve peace, and it was said that Syamsiah had even gone to the police in this matter. It was in the context of such_,a quarrel, that we heard for the first time that Syamsiah and her jurai were not real kamanakan at all. So when Rakiah and Dt. Batuah Rajo wanted to make a small road from the main road to H 7, Syamsiah had said no. The field (T 4: 7) in front of the house had been pawned some years ago, and Dt.

FULFILMENT OF 11IE FUNCTION 231

Batuah Rajo had offered to redeem it, but Syamsiah had refused. Dt. Batuah Rajo had offered to pay a yearly rent just to get a small strip of land for the path, but Syamsiah had refused again. This was the situation when we moved to the nagari • We had met Dt. Batuah Rajo in the Camat's office, and the Camat had asked him to help us to find a house in eKL. H 7 stood empty, but there was the problem of the path. It was decided by Dewi's jurai that we could have the house but only if the house would get a path to the road. It needed apath, for we had a car. If the car could not be parked close to the house, the children would play with it, steal things etc. and they would suffer shame (maZu). The mamak rumah, St. Batuah, safelyaway in Padang, thus had the case stated to the Camat. The Camat, eager to find us a house, ordered the WaZi Negeri to settIe the dispute. But the WaZi Negeri "could not" settle the dispute. He probably had not the slightest intention of doing 50, for Dt. Batuah Rajo was his enemy; should he help to have his enemy triumph over his friend, Pak Rajo? So it took some time until we could move in. Only some pressure from the Camat, and the understanding that we would pay rent, finally changed the mind of St. Batuah and his jurai. There was much talk about the path during our stay, but nothing had changed when we left. Syamsiah and her family were bad people, Rakiah said, for they wouldn't give them land for a path. Of course they were willing to give land for the path, even without money, but not "in this way", said Syamsiah. Weren't they of one kaum? Shouldn't there be a proper musyawarah? But to that Rakiah would not agree, said Syamsiah. Both were terribly ashamed that such guests as we were, who were nearly kaum members by now, should be treated this way through the fault of the other, said both. But nothing happened (19).

But not only Rakiah had had trouble with Syamsiah of H 11. Syams iah, the daughter of Nurmi in H 9, had had trouble, too. For Angku Kayo, the brother of Syamsiah of H 11, had planted bananas on plot T 3: 18 and built a pondok (small stal I) there. Syamsiah's (H 9) claim, that it was her land, had not bothered him a bit. I. Gagah, the mamak kaum, had again not been able to settIe the dispute, and 50 one had brought the problem before the Kerapatan Negeri: Ana, Syamsiah's daughter, represented by

I. Gagah, against Angku Kayo (case 8 of 1973). The case was heard by the adat section of the KN, and Ana won, i. e " Angku Kayo was ordered to give the land back and Ana was ordered to pay some compensation to Angku Kayo as he had "taken care" of the land, and for the bananas which he

PROPERTY IN SOCIAL CONfINUITY planted. Ana had agreed to this solution and had signed the proposed settlernent, but Angku Kayo had refused to do the same. They had then gone to the Camat to have their quarrel solved. The Camat also decided that the land belonged to Ana. Angku Kayo had again refused to accept the settlernent. But then Angku Kayo had died, and Ana took back the land, unopposed by Syarnsiah's jurai(20).

But that was no~ the only quarrel about property in the kaum. Kanang, the daughter of Nari (H 10), also feIt cheated by the (aId) Dt. Kayo. The T 1, for instance, was their harato pusako turun temurun as weIl that of the others' (Nurli's jurai). There was no reason for their exclusion frorn participating in the rotational use of the rice-fields. In fact, they had not got anything of the kaum's harato pusako. Kanang and Murni would just inherit the fields T 3: 1-3 af ter I. Gagah's death. And now there was even trouble about their sawah, the harato hibah. In former times, when Rancak still lived, the fields had been given to Syarnsiah (H 9), because Syarnsiah had been in greater need. But then, when Syarnsiah had this disgraceful dispute with Sur, her son, St. Mantari Basa, had pawned the fields to a wornan from suku Caniago. He had done 50 in secret, pawned the fields but then taken them back in share-cropping 50 that nobody should become aware of the transaction. This "pawning", of course, was void. Yet Murni had taken a friendly attitude towards her cousin. She had approached him and offered to redeem the fields together. But St. Mantari Basa had refused. I. Gagah had, once again, not been able to settIe the dispute between his kamanakan. SA she had just taken the fields back and planted chili-peppers on them. She would not pay anthing to that Caniago-woman; let St. Mantari Basa see for himself how he would manage. And she had enlisted support. She had gone to the Wali Ne ge ri, who belonged to suku Pili, and he had advised her to go through with her plan and use the fields. If anybody could decide in this matter, the Wali Negeri had said, it would be people from suku Pili, for suku Pili had originally given the fields to Rancak as harato hibah until her jurai should become extinct. And if this should happen indeed -Murni until now only had a son-then ane would marry her son to a daughter of the Wali Negeri, and the land would thus return to suku Pili (21). The Wali Negeri~ however, did not belong to the buah gadang of suku Pili which originally had given the property to Rancak.

OF TI-IE FUNCfION 233

4. Swrunary Within this short history of the kaum of Dt. Kayo, we can detect at least 21 cases, which have been marked by numbers:
1. We have seen the development of the group through time: It started as kamanakan who associated with an already settled buah gadang (1), and which later was given independent buah gadang status (2). Af ter some more time, the buah gadang split into two kaum (6), and, most probably at three generations af ter the first split, the kaum will split again (7).
2. We have seen the basic mechanisms at work by which the members' relationships to their harato pusako are regulated: The allocation of the property objects within the ganggam bauntuek holding group (8), which was, af ter the kaum split, changed into a ganggam bauntuek distribution among the jurai of the newly formed kaum. The original allocation within the ganggam bauntuek holding group is more or less still effective for the DDDDs of the original ganggam bauntuek holder. The decision through which the property objects had been allocated in the group (13) could in principle be changed and the property relationships rearranged; the efforts were partly successful (14) and partly in va in (17). We have also seen the main factors which influence the musyawarah processes in which the allocation and distribution should be carried out: The demographic structure of the group and the personalities of the main actors. Whereas the first allocation within the ganggam bauntuek holding group was still guided by the principle of need (8) -on the basis th at it could be changed if the needs should change -in the later ganggam bauntuek distribution (12) and in the allocation within the new ganggam bauntuek holding jurai of Nurli (13) the principle of need was surpressed, and the panghuZu clearly favoured his close relatives. Jusri, the oldest woman in the group, could successfully block all attempts to come to a redistribution or reallocation which would have been disadvantageoUs to her property interests (17, 18). The behaviour of Dt. Kayo, Angku Kayo, and St. Mantari Basa shows that men have few scruples in using their stronger position vis-à-vis women in whose jurai there is no strong male personality (20, 21). But decisions taken in a given power-situation can be changed again, once the power balance has changed. So Ana took back the land when Angku Kayo had died (20), and everyone hoped that there would be a more just reallocation in Nurli's jurai once Jusri had died (17). The weak personality of I. Gagah, on the

PROPERTI IN SOCIAL CONflNUITI

other hand, led to a multitude of troubles between the kaum members (18, 19,20, 21). These stories are a good illustration of how the musyawarah principle works in practice: It has lost in force (if it ever had more force) in the sense that it has become more difficult to bring ab out consensual decisions. But it clearly continues to function in the oPPOsite sense: If no consensus is achieved, then nothing will happen, no decision will be taken, and the problems will remain unsolved.

3. Most mechanisms and modalities of diachronie transfers have been employed by the kaum members: A group was adopted as heirs (3), the pusako was allocated within a ganggam bauntuek holding group (8, 13), the ganggam bauntuek was distributed (12) and was inherited automatically. Harato pusako was given by hibah to the anak pisang in continuity (5) and there was a hibah for the lifetime of the children (15). Land was taken in pawning for the benefit of the children (10), and harato pusako was redeemed for the children (9). And there occurred quite unproblematic inheritance of harato pancaharian (11). Besides, marriage was used (9) or planned (21) to make the future flow of property unproblematic. In those cases where trouble arose, a wide range of agents of dispute-settIement was invoked once the mamak and the panghuZu had been unwilling or unable to settIe the matter to the satisfaction of the disputing kaum members: The WaZi Ne ge ri (21), the KN (20), the Camat (20), and the State Courts (14,16), including the Supreme Court (16).
4. INfER-KAUM RELATIONSHIPS AND PROPERTI Relationships between two or more kaum with respect to property usually become problematic in the following three situations:
5. A kaum split has occurred, and the new kaum have to divide the formerly common harato pusako and make provisions for the succession to the sako.
6. A kaum is punah, extinct, and the inheritance question has to be settled between the kaum which claim to be genealogically related to the extinct one.
   3. Harato pusako, which have been pawned some time ago, are claimed by the pawnee-kaum as their own harato pusako turun temurun.

FUNCfION 235

These situations will be illustrated with one story each. The stories illustrate those cases which make up the greatest bulk of property disputes in the State Courts, and they throw light upon the most important problems of property and inheritance in contemporary Minangkabau.

1. The Kaum-Sp Zit This story starts as a dispute over a panghulu title. Oisputes over sako of ten turn out to be disputes over harato pusako and vice versa. If the contestant has successfully established his right to the gala sako, this will give him astrong position in future disputes over the pusako property which are known to belong or to have belonged to the panghulu in question. This holds particularly true for nagari with Koto-Piliang adat where the rule, "that the sako and the pusako always must belong together" in the same group, is still qui te strictly upheld. In nagari with Bodi-Caniago adat, the opposite of ten happens: Here disputes about harato pusako of ten turn out to be disputes ab out a panghulu title. In CKL, there were atthe time at least two cases which were treated as disputes over harato pusako, but everyone knew that the main contes- tants, the mamak kepala waris of the contending kaum, wanted to establish their right to be instalIed as panghulu. The events which are described in the following story did not occur in CKL. I have extracted them from three judgements, in which the dispute between the contending parties was decided. 3 The following diagram shows the genealogical relationships between the parties.

Ot. B

Barudin Ot. B

Langadang Ot. B Pakihi Ot. B

si ~ Lampakih Ot. B

Marah Insan Ot. B

Ojaridjis CASE 1951~ Rasjid Ot. B

CASE 196~ Munir Ot. B

PROPERTY IN SOCIAL CONflNUITY

In 1910, the woman si Perak brings a suit against Lampakih Dt. B. before the Rapat of the Tuangku Laras of IX Kota. She is assisted by one Haj i AR, who acts as ''her friend" and advocate (kepala kata). Haj i AR is a distant relative of si Perak, "a waris who would inherit if Perak should become extinct" (waris timbang punah, artinya nan akan meulas). Perak claims that the gala Dt. B. is ''hers''. In former times, it had descended to her granduncle (MME) Barudin, and from him to her mamak Langadang. Af ter Langadang's death, the gala had been inherited by his younger brother Pakihi. Pakihi had died in 1908. At present, there was no suitable member in her kaum who could be instalIed as successor. But now the defendant had "just 50" assumed the gala Dt. B, without any rights to it. She therefore demands that the Rapat should decIare that the gala may not used by the defendant. The defendant does not contradict Perak with respect to the history of the gala. But, he asserts, he is still of one family (berkarib) with Perak, and has not yet divided the property with her jurai (belum membagi harta). As he is the oldest and most suitable member of the kaum, it is quite normal for him to be invested with the gala of his mamak Pakihi. Bath parties bring witnesses, all of whom agree about the history of the gala. But two of Perak' 5 wi tnesses ''have heard people say" th at the gala is actually wom by si Hajun, the brother of Haji AR. A third witness even knows for sure that si Hajun has been invested with the gala. The witnesses of the defendant teIl a different story. Si Hajun had tried to be invested with the title, but his efforts had failed. Three witnesses decIare that they were present when the defendant was invested with the title on the graveyard of Pahiki. And all nine witnesses of the defendant agree that Perak and the defendant have "family relationships" and that, in former times, they had the same rumah gadang and the same family graveyard. On the basis of this evidence, the Rapat of the Tuangku Laras does not find it difficult to decide the case. If the defendant is indeed of one family with Perak, it is quite in order that he had been invested with the gala Dt. B. It is therefore declared to be right and valid in adat (dibenarkan dan disyahkan) that he wears the gala Dt. B.

41 years later, Djaridjis, the grandson of Perak, sues Rasjid Dt. B., the grandnephew of Lampakih Dt. B. in the State Court. Both men appear as mamak kepala waris of their respective kaum. Djaridjis' claim is the

following: In 1908, his ninik Langadang had died. His grandmother, Perak, had made an agreement with the defendant's granduncle, Lampakih, according to which Lampakih was allowed to use the gala Dt. B. for the time being, but that the title must be retumed to her kaum once his (Djaridjis') brother, who then was only two years old, had come of age. But when Lampakih had used the title for two years, he had transferred it to his kamanakan Marah Insan, without the consent of Dj aridj is' kaum. When Marah Insan died in 1949, the defendant, his kamanakan, had assumed the gala, again without asking for the consent of Djaridjis' kaum. As the title is the sako of his kaum, Djaridjis now wants it back. His second claim concerns 7 large (turnpak) rice-fields. These fields had been used by the defendant's kaum since 1865 on the basis of share-cropping. As long as his grandmother had lived, Lampakih and Marah Insan had always given the due share to Perak. But af ter Perak's death in 1919 they had stopped. Djaridjis now reclaims the fields and demands compensation for the 32 years during which the half-share had not been paid. The defendant does not deny that Djaridjis and he are the rightful mamak kepala waris of their kaum. But for the rest he disagrees. The gala Dt. B. is, in these days, not the property of the plaintiff's (sekarang tidak hak sako turun temurun dari Djaridjis) but of his kaum, and he can easily prove that his granduncle and uncle have wom it before him. The witnesses which are heard in court all state that they have heard from their mamak that the sako Dt. B. is the defendant's sako, but that they cannot exactly say what the relationships are. The PN Solok rejects Djaridjis' claim on the grounds that his evidence is not sufficient to substantiate it. The claim for the sawah is not mentioned at all in the judgement. Djaridjis appeals, and in the appeal faces the kamanakan of his former opponent, the new Dt. B. His appeal is rejected on the ground that suits over sako cannot be tried at all in the State Courts. The problem of the sawah is again not mentioned.

Discussion: What started as a kaum-intemal dispute has two generations later developed into a dispute between two kaum. Both Djaridjis and Rasjid/ Munir Dt. B consider themselves mamak kepala waris of their kaum. Their arguments center around the question of which of the two kaum owns the gala Dt. B. The problematic situation-image is thus presented as an altemative, which is retrojected into the past. But in the past, this

PROPERTI IN SOCIAL CONTINUITI

alternative did not exist, as there was only one kaum to which the an- ces tors of both disputants belonged. Djaridjis unsuccessfully presented his claim to the court. But we can,if somewhat speculatively,assume that he would have had a much better chance if he and the court had possessed the knowledge which we have, namely a copy of the judgement of the Rapat of the Tuangku Laras. Djaridjis must have had no copy, for if he had he would have presented it as evidence, and he would have been able to give a better account of the relationships between the parties. Although an agreement between Perak and Lampakih Dt. B of the kind maintained by Djaridjis was not mentioned in this judgement, and although the Rapat had confirmed Lampakih Dt. B as rightful panghuZu, the State Court would have become aware of the following:

(a) that in 1910 there was only one kaum;
(b) that the gaZa had descended in Perak's and Djarisjis' jurai;
(c) that Pampakih could wear the title only because there were no suitable male members in Perak's jurai at that time;
(d) that a kaum split had occurred in the meantime;
(e) and that it now had to be determined to which of the two newly formed kaum the gaZa should belong. According to the adat Koto-Pilang (the nagari S. has adat Koto-Piliang) there would have been no doubt: The sako has to be kept in the jurai/new kaum to which it originally belonged, and this was Perak's jurai and the kaum now formed by her descendants. The defendant in the 1951-case did have a copy of the Rapat's judgement (we got it from his kamanakan and made a copy of it for ourselves) but he preferred not to present it as evidence. For although his granduncle Lampakih had been confirmed as rightful panghuZu, he was probably afraid that the study of the judgement might lead the State Court to the same conclusions about which we have just speculated. So Rasjid Dt. B relied upon his position and thewestern law of evidence, which proved to be sufficient. That the claim concerning the harato pusako, the rice-fields, was not even mentioned by the courts, is probably due to the fact that the courts, too, regarded this matter as dependent on the sako-question. It would be highly improbable that the sako-holding group would take 7 turnpak of sawah in share-cropping from a poorer jurai. As it was proved that Dt. B's jurai was the sako-holding one, the claim of Djaridjis was

OF THE FUNCTION 239

not very convincing. The case further illustrates how much demographic factors may influence the potential activities in property and inheritance affairs. If Perak had had a brother or an adult son in 1910, the first case would never have happened. It took her grandchildren 41 years, or 32 years af ter her death, to get into a position in which they could face the Dt. B and to try to rearrange the property relationships and to demand compensation for the 32 years in which the half-share had not been paid. In this case, Djaridjis lost. But in similar cases such attempts may be successful, with property relationships rearranged aft er 30 or more years, and compensation paid for such periods.

Cases of this kind also contain an important lesson for the anthropologist. What looks like a settled case in a given historical situation, may be completely different some time later. If the anthropologist is lUcky, he may observe whether a judgement in a property dispute is carried out or not, and he will draw his conclusions about the "effectiveness" of such judgements. But who stays in one society for 30 years or more? It would have been premature to abstract definite principles of property law and social control from the 1910-case, for on its basis the 1951-case would have been decided differently. And it may be equally premature to abstract principles of a general kind from thc 1951-case. lmagine Djaridjis, or one of his kamanakan, finding a copy of the judgement of the Tuangku Laras I Rapat and starting a new case on the strength of this evidence ...

2. The Punah-Situation When a kaum is extinct, or when there are only male kaum members left, the question of the inheritance of the kaum property has to be solved. The "typicaI" situation shows two or more kaum, represented by their mamak kepala waris, claiming to stand in the closest genealogical relationship to the one which is or becomes extinct. Disputes about the harato pusako of extinct kaum do not necessarily start af ter the death of the last kaum member. The related kaum which think that they might have a chance, start their strategies as early as possible, of ten with the help of the last members of the extinct kaum. The following story tells of such a case. It concerns the property of one Haji Batuah (HB), whose kaum is extinct. HB's kaum is one of the many kaum În the buah gadang of Dt. Bagindo of suku Sikumbang in CKL.

IN SOCIAL CONTINUITI

The relationships within this buah gadang are 50 complex, that a rough outline must be given of its composition before the story can begin. On the diagram given on page 241, the relationships of the 11 component kaum have been sketched. Originally there was one Dt. Bagindo who lived in3 Kampuang and who was the panghulu bahindu of Sikumbang Tangah. At some time, one group of kamanakan of Dt. Bagindo moved to the Batu Balantai, and at some later time the Batu Balantai-group also established a Dt. Bagindo • At least as far badc as 1884, there was T. Dt. Bagindo in Batu Balantai. Whether the 3 Kampuang-and the Batu Balantai-group had agreed upon a system of title-rotation, or whether they made a definite split (baju sehelai dibagi dua) is not quite clear. In the excerpts of the nagari-tambo which we examined, there were usually two Dt. Bagindo mentioned. On the other hand, it was clear to all contemporary informants, that the "real Dt. Bagindo was H. Batuah", i.e., that the title was (should be) turun temuY'Un in HE' 5 kawn. The contemporary buah gadang of Dt. Bagindo consists of 11 (or 13) ka:wn. According to adat, they are still "one" -though there is evidence that in former timesthey were regarded as two buah gadang. In the original 3 Kampuang-group, three main branches are recognized:

1. The one of H. Batuah, which is nowextinct;
2. the one which currently is under A.M. Dt. Bagindo, which comprises 4 kaum resident in different parts of the nagari;
3. the one which is currently under Z. Dt. Bagindo, which comprises 4 ka:wn of which the two most important ones are still resident in 3 Kampuang. The Batu Balantai-group consists of three ka:wn, two of which are resident in Batu Balantai, whereas another, under the panungkek Dt. ~mntari, had at some time moved to Lubuk Aur. 'The eldest Dt. Bagindo who was still remembered was D. Dt. Bagindo, who belonged to the group of the present Z. Dt. Bagindo. His successor was S. Dt. Bagindo, who belonged to the group of the present A.M. Dt. Bagindo. Informants agreed, that as H. Batuah/his kawn ''had not wanted" the title, it had been given to the other two branches which agreed upon the system of gadang balega, of title-rotation. Independently, the Batu Balantai-group had established a Dt. Bagindo in 1936. In the 1960'5, both S. Dt. Bagindo and H. Dt. Bagindo died, and af ter their death there was considerable trouble about the succession. The group of Z. Dt. Bagindo claimed back the gala according to the system of rotation, but the group of the deceased S. Dt. Bagindo also wanted to install a successor.

BUAH GADANG OF DT. BAGINDO

Dt. Bagindo in 3 Kampuang I

Dt. Bagindoin 3 Karnpuang .,./ ~ Ot. Bagindo in BLu Ba'",tai

~ D. I~. j"'ndo T\ rindO (1884)

s. Dt. Bagindo H. Dt. Bagindo 1936

(died 1965) (di"" 196)

A.M. Dt. Bagindo Z. Dt. Bágindo B. Dt.l",gindO I I
Haji batuah ,-1. A. Kota Tinggi ~ Z. Dt. Bagindo-, rl:-B.--Dt~ B;gind~-l 3 Kampuang 3 Kampuang 3 Kampuang Batu Balantai

2. Dt. Bagindo nan Balapiah 2. A. Bagindo Putih 2. Dt. Rajo Batu Balantai 3 Kampuang Batu Balantai
3. A.M. Dt. Bagindo 3. ? 3. Dt. Mantari Puti Ramus Lubuk Aur
4. Bagindo nan Balang 4. ? Puti Ramus
   

   ~ title transfer

genealogical link

PROPERTI IN SOCIAL CONfINUITI

Besides, the Batu Balantai-group also wanted to install a successor to

H. Ot. Bagindo. Finally, all three were instalied, the result of the management by the juaro adat of the hindu, Bandaro Hitam (a kamanakan of Z. Ot. Bagindo) and of Ot. ~arajo, the panghuZu ? suku of hindu Sikumbang Koto Ambalau which was "sapusako" with the hindu Sikumbang Tangah, and who therefore hal to act as organizer (pitungguek) of the installation ceremonies. Af ter the installation ceremonies one juaro adat died, another is still (1975) ill, and Bandaro Hitam was ill for several months -which everybody attributed to the workings of poison (which we are inclined to believe). The situation is "impossible" for most adat experts in CKL. For there are "three cocks in one ricepot" -"tigo ayam saZasuang", i.e. three panghuZu in one buah gadang. This shows, that (at least in contemporary CKL) the buah gadang is still regarded as "one". If "Ot. Bagindo" has to act in adat, only one of the three persons wearing the title of Ot. Bagindo can go. When the three Ot. Bagindo were installed in 1968, an agreement was drawn up in which the function of the "one Ot. Bagindo" was divided amongst the three newly instalied persons: A.M. Ot. Bagindo is the panghuZu bahindu, B. Ot. Bagindo is the panghuZu babuahparuik, and Z. Ot. Bagindo is the panghuZu babuahgadang. But everyone agrees that the "reai" Ot. Bagindo, the descendant of the original kawn of Ot. Bagindo in 3 Kampuang, is H. Batuah. Haji Batuah is aged 83 and currently living in Padang. He is the last kaum member and there have been discussions about his inheritance for several years. We heard about the problem for the first time when Ot. Bagindo nan Balapieh (Ot. BNE),a panungkek of A.M. Ot. Bagindo, came to our house in January 1975. Actually he had wanted to meet Ot. Batuah Raj 0, the tambang adat and chairman of the Karapatan Adat Nagari • As Ot. Batuah Rajo had gone out, he dropped in on us to have a chat. He had with him a copy of an amicable settiement, written in Dutch, which had to do with the property of HB. For HB had finally decided, that he, Ot. BNE, should be his heir. As a token of his seriousness, he had given him the document. In former times, HB had never wanted to give it to him, but now HB was old, and the document had fallen to him. If possible, he wanted to have it translated into Indonesian; and he knew that my wife was Dutch. HB had had a dispute with A. Koto Tinggi in 1939 about some harato pusako. This dispute was settled by amicable agreement by the

FULFIlMENf OF 1HE FUNCTION 243

Landraad in Fort de Kock (Bukit Tinggi), rather to the disadvantage of HB. Dt. BNB hoped that the document, the amicable agreement, would mention the borders between the harato pusako of HB and A. Koto Tinggi, for he foresaw trouble about his inheritance, as some property of HB was pàwned to the kaum of A. Koto Tinggi. When the translation showed that no borders were mentioned in the document, but that reference was made to a map which neither HB nor DT. BNB had in possession, Dt. BNB' s enthusiasm over the document was blown away. He had become aware that it probably could be better used against him than to his advantage. The land which he was going to inheri t from HB would not be for him alone, but also for his kamanakan • The wife of Dt. Panghulu Raj 0, one of the most influential panghulu in CKL, for instance, would also get a share, as she was one of his kaum members. Dt. Panghulu Rajo did not know yet, but he wanted to inform him soon. Dt. Panghulu Rajo would come to our house tonight? What a chance, then he, Dt. BNB would also come to talk things over with him. For the inheritance of the property of HB, this Dt. BNB clearly foresaw, would not go without trouble. For there were other people in suku Sikumbang, who claimed that they were more closely related to HB than he was. In particular, there was Upiek, the younger sister of (the now deceased) A. Koto Tinggi. She and her family were his enemies. In 1971 he had had a court case with her. Upiek had won in the first instance, as she had bribed the judges, but he had appealed. But this showed what kind of people one had to reckon with. We had been able to study the court records before we moved to CKL (case 30 of 1971 PN Bukit Tinggi). The property disputed by Dt. BNB and Upiek in 1971 had already been the subject of a dispute between

A. Koto Tinggi and S. Dt. Bagindo in 1943, during the Japanese occupation. S. Dt. Bagindo had lost the case, which was decided by a decisive oath. A. Koto Tinggi had sworn that the harato pusako in question belonged to his kaum (S. Dt. Bagindo had not expected that
A. Koto Tinggi would dare to do so). The land which was in dispute between Upiek and Dt. BNB in 1971, according to Upiek, was part of the property which her brother had won in 1943. It had not been given back (it was located in Batu Balantai) and Dt. BNB's kaum had built a new rumah gadang on it. Dt. BNB had also been instalied as panungkek of
A.M. Dt. Bagindo in this house, and no protest had come from A. Koto Tinggi's kaum. But in 1971 they claimed, that the property had only been ''borrowed'' to Dt. Bagindo and later to Dt. BNB. The elders of the hindu had tried to settie the case. It was decided that the disputed pusako should be exchanged with a rice-field in 3 Kampuang which belonged to Dt. BNB's kaum and which was pawned to Upiek. However, in spite of several new meetings and discussions of the problem, the matter was not finally settled, and Upiek had gone to the State Court. At a later meeting in our house (4.4.75) the matter was discussed
again, and Dt. BNB complained ab out the "justice" which one got in the State Courts. Judges were corrupt and let things happen which were

PROPERTY IN SOCIAL CONrINUITY contrary to adat. In his case against Upiek, the PN had declared the judgement executable, and he had indeed been forced to tear down the rumah gadang on the disputed harato pusako, something which could never have happened without the approval of the KAN, no matter who was in the right. Dt. panghulu Rajo confirmed this. It had been the fault of the panghulu (A.M. Dt. Bagindo) who "had not stood in the middle" between his disputing kamanakan.Whoever was in the right in the matter, it would have been the task of the panghulu to decide the question of the rumah gadang. But obviously, Dt. Bagindo had taken sides against Dt. BNE, his own panungkek.

Some days later, Dt. Batuah Rajo, the chairman of the Karapatan Adat Nagari, came to our house. He wanted our advice (the only case in which our advice was asked). He put the problem abstractly: X makes a document giving Y power of authority (surat kuasa) over his property. X is still living. The content of the document is, that Y may administer X's property during X's lifetime. He, as tambang adat and chairman of the KAN, had been asked to take cognizance (mengetahui) of the document. Would th ere be any reason not to do so? We cautiously ventured the opinion that if the problem of inheritance was not touched, and if the giver of authority was entitled to give authority, he probably could do 50, and that in this case the tambangadat could probably take cognizance of the document as weIl. The real problem was, Dt. Batuah Rajo confided to us, that he already had signed the document. It was a letter of HB to Angku Bagindo nan Tungga, the mamak kepala waris of Dt. BNE's kaum. The letter had been written on official paper (atas zegel) and had been signed by HB, his children, the Wali Jorong (village district head) of 3 Kampuang, and some of the distánt kamanakan of HB. Therefore he, Dt. Batuah Rajo, had thought it quite in order to sign the letter, too. Admittedly, A.M. Dt. Bagindo and the Wali Negeri had not signed it. Actually, A.M. Dt. Bagindo at first had been willing to do 50, but then had refused, since he "is an enemy" of Dt. BNE. And now "they" wanted to depose him as tambang adat, saying that with his signature under the document he had violated adat. He had just heard it from his father in Bukit Tinggi, for they had not dared to teIl him directly. Dt. Batuah Rajo was quite concerned: "They want to depose me, but they have no right to do 50. The tambang adat can only be deposed by the KAN. This is a matter of written law, anyway. The letter has been written on official paper, it is valid. Everyone can give authority to other persons. And according to the Constitution (of the Republic) I can sign such a

FULFILMENI' OF TIIE FUNCfION 245

letter". And to Dt. BNB, who had come later, he said: "If they think that they can depase me like that"they have erred. TeIl this to your friends from suku Sikurnbang and to Bandara Hi tarn". Dt. Batuah Rajo did not like the case anyrnore. He had stepped into trouble and prepared his defence in reference to a different standard of validity: written law and the Constitution. We gat the irnpres- sion that this statement was also a hint of the farces standing behind the Constitution: the governrnent adrninistration. Dt. Batuah Rajo as adrninistrative official in the inforrnation departrnent, was part of this adrninistration. As background inforrnation it must be known that two years ago, A.M. Dt. Bagindo had been deposed as tambang adat and replaced by Dt. Batuah Rajo. Thus A.M. Dt. Bagindo was his enerny. The change in the tambang adat-ship had mainly been the work of Bandara Hitarn, the juaro adat of Sikurnbang Tangah, one of the most influential and clever politicians in the nagari. The WaZi Negeri was also an enerny. SA was the head of the General Section of the KN, who had defeated Dt. Batuah Rajo's grandfather (FF) in a property dispute (see "The Extinct Buah Gadang"). The head of the Religious Section of the KN, was a close friend of the WN and was married to a sister of Upiek, the opponent of Dt. BNB whom Dt. Batuah Rajo had supported by taking cognizance of the document.

In the meantime, Dt. BNB had received a new letter, this time from a child of Haji Batuah, asking to procure more money. A sawah, which had been pawned to a woman from suku Guci, should be "deepened" (dida-Zami). But the woman refused, and sa one would have to redeem it (menebusi). But the other Sikumbang people opposed this, the kaum of A. Kata Tinggi and Bandara Hitarn in particular. Menubus,to redeem,is redernption in the name of the original holder. Sa if Dt. BNB redeemed the sawah, this would have meant that he acted as a kaum member of HB. If the other potential heirs of HB let this happen, the act could easily prejudice the question of who is the heir of HB. They had even held meetings now in the hindu Sikumbang Tangah, only to keep him, Dt. BNB, from receiving the rightful inheritance. He had not attended these meetings. But he had asked the advice of Dt. Panghulu Rajo. To make a"letter of authority"is permissible, Dt. Panghulu Rajo had said. Only to make him heir (kasih waris) in this document would be against adat. For in matters of inheritance, the ''property constitution" (the corian barih, Chapter 4: 146) would have to be consulted first. It must be ascertained who is most closely related to HB, and this would be in part determined by the location of their harato pusako. Dt. Batuah Rajo had advised Dt. BNB to write a letter to HB, asking hirn to decIare in writing that he, Dt. BNB, was the closest relative (kaum), and that he, in particular, was more closely related to hirn than was

PROPERTI IN SOCIAL CONfINUITI

Bandaro Hitam. Dt. BNB then had cal led a meeting of his kaum to decide upon the future strategy. For nearly all of HB's property was pawned and it would require a lot of money to redeem it. But still, they had decided to go through with the matter.(The property had been pawned for altogether 77 gold pupiah (pupiah emas). 1 pupiah emas was at the time worth ab out 30,000 pupiah. 1 kg of meat cost 700 pupiah, 1 kg of ri ce 90 pupiah.)

The next time we heard about the case was from Bandaro Hitam (9.6.

1975). Yes, there was a lot of trouble again in Sikumbang Tangah, but he, Bandaro Hitam, had settled it all. Haji Batuah had made a letter of authority, in which he had invested Dt. BNB as his heir. But this was not proper (patut),as there were other people who we re more closely related to HB. The problem had been decided anyway already in 1956, when they had discussed the inheritance of HB in a large meeting. It had been decided that the inheritance would be a matter of the branch of the Dt. Bagindo in the 3 Kampuang-group only, for it and the Batu Balantai-group had already divided their pusako. lVithin the 3 Kampuang-group, there were threebranches, the descendants from three grandmothers: the one of Haji Batuah, the one of A.M. Dt. Bagindo,and the one of Z. Dt. Bagindo. Since Haji Batuah was punah, his property should be divided between A.M. Dt. Bagindo and Z. Dt. Bagindo. Dt. BNB was a kamanakan of A.M. Dt. Bagindo and could only get a share of the property in this capacity. But actually -this was hinted at for the first time -Dt. BNB (his ancestress) was not even of the same buah gadang as Dt. Bagindo. He had only been fetched (diambiZ) as panungkek (some generations ago) by Dt. Bagindo. This had been possible, as they were saparuik. We asked whether it was written in the document that Dt. BNB was indeed invested as heir? Oh no, they would never dare to put it so directly. But it was written that Dt. BNB got authority "as ahZi waPis" (sebagai ahZi waPih), and this could not be allowed. If it had been written "to take care, or to administer" (memeZihaPa atau mengupus saja) this would have been in order. But it was "sebagai wapih"-and, indeed, Dt. BNB had already acted as if he was the heir of HB. Af ter he had received the letter of authority from HB, he had transferred a pawning from a Guci-woman to someone from suku Caniago (Dt. BNB had not told us that). 50 he had acted as waPis, and this could not be tolerated. A.M. and Z. Dt. Bagindo therefore had invalidated (membataZkan) the transaction and the letter of authority. They had approached the WaZi Neg~Pi and the .waZi NegePi had after some time decided to ask him, Banda-

FULFILMENI' OF 1HE FUNCfION 247

ro Hitam, to look into and settIe the matter. He had then convened a meeting of all lineage elders of Sikumbang Tangah (of all 8 buah gadang) for a rrrusyCJ);)arah. Dt. BNB had been present, but had not dared to say anything. In the meeting it had been decided that the original decision taken in 1956 should be adhered t~. Another, and hardly less grave matter, however, Bandaro Hitam added, was the fact th at Dt. Batuah Rajo had signed the letter of authority. This was a great error in adat, but Dt. Batuah Rajo was still young (he was a few years older than Bandaro Hitam) and unexperienced. But he already had talked to him, and Dt. Batuah Rajo had realized his error. He had advised him to withdraw his signature.

The inheritance of HB and Dt. Batuah Rajo's signature had become a nagari-wide political matter. When we visited Dt. Maharajo, one of the panghulu 7 suku,sometime later (29.6.75), it seemed that the move to depose Dt. Batuah Rajo had made some progress. They had organized a meeting of the 5 hindu in Candung (Dt. Batuah Rajo was from Koto Lawas). This meeting had taken place in the house of Dt. Mangkuto (who acted as head of the adat section of the KN). The Wali Negeri, A.M. Dt. Bagindo, Dt. Mangkuto and Bandaro Hitam had participated. They had already found a new candidate for the chairmanship of the KAN: himself, Dt. Maharajo. But he did not want this position, and certainly not in this way, and 50 he had refused the invitation to the meeting. Dt. Maharajo's refusal to cooperate triggered off more political trouble. Some time ago, it had been decided that a new juaro adat should be instalIed in the hindu of Dt. Maharajo. The successor had already been selected. But now Dt. Mangkuto, who was of suku Pili which was part of the hindu Sikumbang Koto Ambalau, had instigated some of Dt. Maharajo's kamanakan to oppose the installation. Bandaro Hitam was, of course, behind this, too. Whereupon Dt. Maharajo started a carnpaign to depose Bandaro Hitam as juaro adat. The problem had not been settled when we left the nagari. According to Dt. Maharajo, Dt. Batuah Rajo had "apparently" been wrong in this matter. But his error was not yet clear (kesal-ahannya belum sempurna) as it was rumoured that he already had withdrawn his signature. If he had done 50 indeed, this would mean that he was not wrong any more (berarti dia tidak salah lagi). In our discussionwith Dt. Maharajo, we tried to ask some hypothetical questions with respect to the making of authority over harato pusako. Could one give such authority, even if it were for one's own lifetime only? No, he answered, for the ones who have to receive the property of Haji Batuah were, the three

SOCIAL CONTlNUITY

Dt. Bagindo. (The first and only time where all three Dt. Bagindo were mentioned.) We again tried to frame our questions in a way that they should not imply any connection with future inheritance, but without success: In each case the property must go to the Dt. Bagindo. It must go to the ahZi waris. Even for a lifetime only, such authority may not be given (untuk hidup saja, tidak boZeh. Harus ahZi waris). Dt. BNE had no right at all to mix in this matter. The problem could only be solved by a musyawarah of the three Dt. Bagindo and Bandaro Hitam. Dt. Panghulu P~jo expressed a somewhat different view (21.6.1975): The kaum of HE was punah, the buah gadang was not. So HE was perfectly entitled to indicate someone (a kaum) from his buah gadang as his heir,

e.g. Dt. BNE. This must, of course, happen with the cognizance of the lineage elders; without their cognizance it could not be done. However, they could not do anything against it, they were forced to consent to this (terpaksa setuju). This was the last that we heard about the property of Haji Batuah. The case had come to a preliminary end, and Dt. BNE had obviously lost the first round. But the problem will be resuscitated when HE dies, and there will be a lot of trouble and most probably the case will go to court. Only then will Dt. BNE know what his letter of authority is worth. Discussion: As an example of property and inheritance polities the story speaks for itself. Only two brief comments must be made:
1. The story illustrat5well how the principle that the panghuZu must take cognizance works in practice. Clearly, A.M. and Z. Dt. Bagindo "knew" about the letter of authority. But that was not sufficient, they had to take approving cognizance, and they were not willing to do so (yet). The importanee is also shown by Dt. Batuah Rajo's signature as he only could acknowledge the letter without having to "consent" to it. Yet his signature was taken very seriously, so seriously that his opponents in nagari polities could at least construct aplausible reason for his deposal(as tambang adat. Taking cognizance, here meant an impermissible validation of the letter by the highest adat functionary; impermissible, as the validation could only be given aft er the panghuZu had taken cognizance. Without their approval, the letter "could not" be valid in adat. On the other hand, the Dt. Bagindo just had to take cognizance, for HE couZd invest Dt. BNE as his heir.

FULFlIMENf OF TIIE FUNcrION 249 But the social processes by which it lastly is determined whether it was right of the three Dt. Bagindo to withhold their acknowledgement, or whether i t was wrong that Dt. Batuah Raj 0 signed the letter, do not function successfully any more in the nagari. In the higher foTUm6 of decision making, the State Courts, these processes cannot be reproduced. The evaluation of validity in adat therefore more and more becomes a matter of the political life: the one wielding most power for the time being will be the one who is right -for the time being.

2. The case also illustrates how individual and group autonomy over harato pusako is restricted. HE was punah, and in this situation he was quite free to dispose of his property. He had pawned nearly all his kaum's harato pusako quite unimpeded by the other kaum of Dt. Bagindo. But the transactions he had carried out were temporary in character, and they did not prejudice the question of his inheritance. If he had transferred the pawning from the Guci-woman to the people from Caniago, nobody would have cared -for the transaction would not have lost its ternporary character. The letter of authority was given to Dt. BNB only for the lifetime of HE -it was to have a temporary character, too, but that was not accepted. The letter was immediately drawn into "di achrony ", into the dimension of inheritance, by all concerned, including Dt. BNB, and it was subjected to all restrictions that pertain to a transaction which is to have the character of a definite diachronic transfer of property relationships. Whatever Dt. BNB did, even during the lifetime of HB when he could not yet -in our understanding-be considered his heir,
   e.g. the transfer of the gadai, was not considered valid, as it would have shown Dt. BNB as heir in the adat conceptualization of inheritance.
   3. The Inter-Kaum Pawning Case Inter-kaum disputes of ten center around pawnings. If some time has elapsed since the original transaction and if the original witnesses have died, it frequently happens that the members of the original pawnee's kaum claim the harato in question as their own harato pusako turun temurun. The pawner or his descendants then have to prove that the property indeed had been pawned. This is rather easy when the parties belong to different suku, for it will be difficult for Guci people to maintain, say, that a rice-field surrounded by fields belonging to suku Sikumbang people, is their harato pusako turun temurun. But it is diffi-

IN SOCIAL CONTINUITI

cult to prove if the parties belong to the same suku or even to the same buah gadang.

The following case arose in the buah gadang of Dt. Bagindo -and we meet with familiar faces again. The contending mamak kepaZa waris were Bagindo Hitam, the w.1ZS of Bandaro Hitam and then (1961) juaro adat of hindu Sikumbang Tangah, and Angku Bagindo, the elder brother of Dt. Raj 0, one of the panungkek of (the then still living) H. Dt. Bagindo of the Batu Balantai-group. A, Bagindo had wanted to redeem a rice-field, which had been pawned (50 he said) by his granduncle (MME) to the granduncle (MME) of Bagindo Hitam. Bagindo Hitam had apparently (this is based upon information from Dt. BNE) at first acknowledged the right of A .. Bagindo in principle, but the parties had failed to come to an agreement over the redemption sumo Bagindo Hitam had demanded 12 rupiah emas, A. Bagindo had offered only 4 rupiah emas. The efforts to settIe the case in the nagari proved a failure, and A. Bagindo took the case to the State Court. He feIt optimistic, for he had as evidence the pawning register which had been kept by the Tuangku Laras of Candung during the years 1873-1897. The entry for July 29, 1887 was the following: "At this time there have come three men. One is Tapa Dt. Bag indo, suku

S., negeri and Laras Candung, who lives in Batu Balantai, and the name of the second is si Buruk gala Bandaro nan Panjang, suku, negeri, and Zaras and residence as before; and another man named Idris gala Sutan Bandaro suku Sikumbang, negeri, and Zaras Candung, who li ves in Candung (3 Kampung). They have come here to decIare that they have pawned sawah, eleven piring, situated in Ladang Lawas, which bring a harvest of 25 sumpit, and this is pawned for 500 rupiah. The one who is pawner (yang menggadaikan) is Dt. Bagindo, the one who is pawnee (yang memagang) is Sutan Bandaro. It is their agreement that if the sawah is to be redeemed (batahuran) this must be done with 500 rupiah, too. They have made this agreement before two witnesses, and these are also signing the letter 50 that the state of things may be clear". The names and the titles of the parties and the witnesses are written, and the signatures consist of a cross. 4 Besides this document A. Bagindo submitted two genealogies as evidence. According to the genealogy of his kaum, he was the ZDS of Tapa Dt. Bagindo, and this was not disputed by his opponents. According to his genealogy of the defendants' kaum, Bagindo Hi tam was the son 'of Rasiah, who was the daughter of Rasimah, the sister of the Idris St. Bandaro mentioned in the entry in the register. The defendants, however, claimed that the land in dispute was their harato pusako turun temurun. The land mentioned in the pawning register was not the land in dispute

RJLFILMENT OF TI-IE FUNCfION 251

at all. Besides, there had never been an I. St. Bandara in their kaum, and the alleged pawning had thus not been with their kaum at all. Witnesses were heard. Two witnesses, among them H. Dt. Bagindo, the panghuZu of the plaintiff, confirmed that indeed I. St. Bandaro and Rasimah had been siblings. But to whom the property actually belonged, they unfortunately did not know. Two other witnesses, old men from suku Sikumbang who lived in 3 Kampuang, stated that they had never known or heard of a St. Bandara. The PN (case 36 of 1961 PN Bukit Tinggi) rejected the claim. The plaintiffs had not sufficiently proven that the disputed sawah was indeed the sawah which had been pawned in 1887. Besides, the pawning register was na real evidence, as the parties had only made crosses and not given their own signatures.

What had happened? According to the information given by Dt. BNB,

A. Bagindo should have won the case. For Bagindo Hitam had originally acknowledged that the sawah belonged to A. Bagindo's kaum. The witnesses, toa, had been prepared to give evidence in favour of A. Bagindo. But in court, Dt. BNB concluded, the witnesses '~ad suddenly sat beside Bagindo Hi tam". The reason for this was obvious to him: Money. When we started to discuss this case with Bandaro Hitam, the MZDS of Bagindo Hitam and his successor as juaro adat, it seemed at first that we would not get much information from him. Bandaro Hitam remembered the case quite differently: Yes, there had been a surat gadai in this matter, and if he remembered correctly, it had been handed in by Bagindo Hitam as evidence th at he had already redeemed the sawah in question. For you must know, he instructed us, if you pay back the money, you also get the letter back, and the chairman of the PN wanted to see some evidence that the sawah really belonged to our kaum. Originally, the sawah had been pawned to people of suku Guci, if he remembered correctly ..• and his voice trailed off. But we had gotten quite weIl acquainted with Bandara Hitam. Mter some time he gave us more confidence and warmed up." Yes, i t was A. Bagindo who had claimed that i t was his sawah. And Hasan Dt. Bagindo, it is true, had also stated that the sawah was the harato pusako of A. Bagindo. But we said that the sawah belonged to Bagindo Hitam (to our kaum). Said Hasan:'It belongs to A. Bagindo'. Said my mamak: 'No, these are not the harato of A. Bagindo. A. Bagindo's pusako are still under the control of Hasan Dt. Bagindo -ahhhitu!' Now Hasan was not stupid, for he had been a prokroZ (unofficial advocate managing

PROPERTY IN SOCIAL CONTlNUITY

court affairs for villagers). When he heard this, he changed his mind and said that the property belonged to us, indeed. That is how it was at the time". With the latter remark, Bandaro Hitam implied that A. Bagindo may turn against H. Dt. Bagindo and demand more property from him, and that it might be wis er for H. Dt. Bagindo to side with Bagindo Hitam in order to have an ally if this should indeed happen. The expression "ahhitu", "ah, that", or "ah, there you see" is made when the speaker has made a point. The point in question was the cleverness of Bagindo Hitam, that he had made H. Dt. Bagindo aware of the implications of his statement. "And when the pengadiZan inquired about our genealogy, and who Bagindo Hitam's mother was, Hasan answered: 'Rasimah'. Said my mamak: 'No. Her name is Dasimah' (thus a different woman). He said 50 in order to be quicker than Hasan, to invalidate and to turn around his statement (untuk mencepàtkan dan membataZkan dan mcmuta~). Said Hasan: 'Rasimah'. But my mamak was even quicker: 'Dasimah, not Rasimah'. In order to invalidate Hasan's information. For if the information was not invalidated, then we might have lost the case. This is the basic principle in disputes: The information of the opponent must be immediately invalidated. Even if it is true it must be contradicted straight away. This is a tactic of the dispute ... haaah. In the Karapatan Nagari, this cannot be done, but in the State Court it may (can) be done. For if it is not invalidated, it is a sign that the information is true, and we lose. (Mamak saya Zebih cepat Zagi. Dasimah, tidak Rasimah. Haah. Untuk membataZkan kete~angan Hasan Dt. B. KaZau tidak dibataZkan, nanti kita kaZah. pokoknya keterangan Zawan bataZ terus. WaZaupun betuZ, bataZkan terus. Ini taktik perkara, haaah. KaZau di KAN, tidak bisa. KaZau di PengadiZan, boZeh. KaZau tidak dibataZkan, tanda betuZ keterangannya: kita kaZah). " This way, A. Bagindo's claim was defeated, as the court was not sure whether there were genealogical relationships indeed between Bagindo Hitam and the St. Bandaro mentioned in the document. The kaum of Bagindo Hitam had got "its" sawah.

However, the problems concerning the sawah did not stop. ~Vhen Bagindo Hitam had died there was trouble again, but this time within his kaum. The fields only "belonged" to Bagindo Hitam as he had "redeemed" them. When he had died, the harato were taken by Bagindo Putih, the MyZS of Bandaro Hitam, and Bagindo Putih did not want to share the property with the jurai of Bandaro Hitam. The matter was first discussed in the

OF 1HE RJNcrION 253

suku, and people thought that Bandaro Hitam was right to claim half of the property for his jurai. But Bagindo Putih did not accept this. So Bandaro Hitam went to the WaZi Negeri, who also said that he was right: The property must be divided between the descendants of the two mothers in the kaum. Finally the dispute was ended by the Camat. Since 1974 the fields have been divided, and Bandaro Hitam has had his right. He himself uses the fields as sawah niniek mamak, as "his own" sawah which is allotted to him for his expenses as juaro adat. It is usually worked by one of his wives. When he had had the trouble with Bagindo Putih, the WaZi Negeri had "taken care" of the harvest which was in dispute, too. Af ter Bandaro Hitam had won his case, the WaZi Negeri did not want to return the harvest. So Bandaro Hitam went to the Police who came to Candung to settIe the matter, and the WaZi Negeri had to return the rice. He did not want to and said that he did not know where the rice was af ter such a long time. But Bandaro Hitam had said: "If the mice have eaten it, please show me the ashes (abu) as proof. Ahhhi tu!"

111. 1HE EXTINCT BUAH GADANG When buah gadang become extinct, most of their harato pusako has already been pawned by the last group member(s). Their autonomy over their harato pusako is generally recognized, as there are no more persons who are "of one common pusako". The last members of a buah gadang can also adopt other people as their heirs much easier than in cases where kaum become extinct. In particular, they can adopt their baZahan, persons who in former times had belonged to their group and had moved to a different nagari later. But even if most pusako has been pawned, the inheritance of a buah gadang is still of considerable economic interest, as there is always the right to redeem or to transfer the pawnings. Besides, if one is at least saparuik with the extinct buah gadang, one has a good chance to acquire its gaZa sako. But the best strategy to becorne heir to a buah gadang is, of course, to claim that oneself or one's kaum is a member of the buah gadang, and that there is no problem of inter- buah gadang inheritance at all, but just of inheritance between kaum which are still saharato sapusako-of one pusako property. The easiest way is to oppose transactio~ which are carried out by the last buah gadang members on the ground that one I s consent had not been asked

PROPERTI IN SOCIAL CONfINUITI

although one is of the same buah gadang. Such claims are facilitated by the partly untraceable relationships between the kaum and buah gadang, in particular between groups where no panghuZu has been instalIed for generations. aften, panghuZu A has represented ''his'' kamanakan of buah gadang B in adat, as B has no instalIed panghuZu. If buah gadang A becomes extinct, the group members of B may "remember" very well that A was "their" panghuZu, too. Although it is aften nearly impossible to ascertain who the closest group of relatives of an extinct group is, there are criteria by which the reliability of claims can be tested. This will also be illustrated in the following story,which tells about the buah gadang of Dt. Tuah and the problems connected with the inheritance of its harato pusako.

The buah gadang of Dt. Tuah, suku Guci in the hindu Guci Tangah, to all appearances was nearly extinct. The last Dt. Tuah, who had been married in Lasi, the neighbouring nagari, and who died there, had not been replaced. Af ter his death, only two brothers were left in his jurai, Haji Barudin and St. Pangeran. Haji Barudin had died recently, too, and now St. Pangeran, aged 72, was the last member of the buah gadang. He was a rich man, for Dt. Tuah had belonged to the 60 original panghuZu who founded CKL, and the first Dt. Tuah (now there were 4 buah gadang) had been one of the panghuZu ? suku. St. Pangeran was a very well known but controversial figure in CKL. He took an active part in nagari politics, and acted as chairman of the General Section of the KN. According to his friends, he was a great adat expert, and in conversation -with us or in adat atmosphere -he was an inexhaustible source of adat sayings, for which he was greatly admired. According to others, he was not a "good CKL-man": He was 72 years old, yet he "behaved like a young man". He dyed his hair black, and liked to attend pig-hunts with his two expensive hunting dogs. He had been the first one (or the first one remembered) to break the rule of nagari-endogamy, for which he was duly punished at the time. St. pangeran was quite aware of the fact that many people did not like him, and he took his precautions. When he was ill, he went to the medical assistant to get same pilIs. Of course, the native doctor (dukun) could have helped him better, but he probably would be bribed by his enemies to poison him. The problem of his inheritance was a matter of great concern in CKL. St. Pangeran himself lived very modestly in CKL. He had pawned most of his buah gadang's property, and also had sold some fields, and he had transferred most of his capital

OF 1HE FUNCfION 255

to his wives and children. But he had not yet made final arrangements about the inheritance. He had shielded all criticisms off by saying that he had kamanakan in nagaPi B. in district 50 Koto, who were a balahan of his, and he thus apparently would not even leave the property which was left to the related Guci people in CKL. But the thing with the balahan was a dubious affair for most villagers, and there were only a few who believed him. The inheritance of St. pangeran became problematic, when one Hassan Angku M.Ido from suku Guci Tangah claimed, that he was actually a kamanakan of Dt. Tuah, too, and that St. Pangeran had no right to sell or pawn harato pusako without his consent. This finally developed into a court case, which will be reported presently. But before the case went to court, there had been an attempt to settle the matter in the KAN, where the problem of the balahan had also been discussed. As a matter of adat, St. Pangeran had, of course, the right to.adopt his balahan. Dt. Maharajo and Dt. Panghulu Rajo explained to us, what procedure would have to be followed in this case: If St. Pangeran had a balahan indeed in 50 Koto, and if his buah gadang was indeed extinct, he could transfer his harato pusako to them. But the balahan must be true kamanakan, i. e. kamanakan batali darah of the ancestor who in former times had been a kamanakan of Dt. Tuah. These kamanakan then would have to move to CKL. For "pusako cannot move" (pusako indak bulieh pindah). The balahan must be accepted as heirs (dionjokkan dan memper- lihatkan sepertiahli waPis) in a formal ceremony which must be val ida- ted by "CKL", i. e. by the 12 hindu. If St. pangeran wanted to adopt his balahan he would have to notify the juaro adat of his hindu. The juaro would then report to the tambang adat. The tambang adat would discuss the matter with the other panghulu of suku Guci. If they consented, the matter would be brought to the notice of the nagaPi-in a meeting of the 12 hindu. If CKL also consented, the ceremony would be held in the rumah gadang of St. Pangeran. St. Pangeran would only have to care for the provision of the ceremonial meal, the organization of the ceremony would be in the hands of the juaro adat. But when the question of the balahan was discussed in the KAN, the panghulu still had many doubts. Particularly, Dt. Panghulu Rajo had questioned St. Pangeran "in a way that he did not dare to eat or to drink" (this was told by Dt. Panghulu Raj 0 himself) : Q: ''What are your connections with the people in nagaPi B.?" A: "They are my ba lahan" •

PROPERlY IN SOCIAL CONflNUIlY Q: ''What is the title of their panghuZu?" A: "Dt. Bas a". Q: "Is there no Dt. Tuah or Dt. Tuah Basa?" A: ''No''. Q: ''Where is their harato pusako in CKL? Do they have harato pusako in CKL? " A: ''No''. "So, you see", Dt. Panghulu Raj 0 concluded, ''he had no proof at all that he really had a baZahan in nagari B. If the panghuZu of his alleged baZahanhad been a Dt. Tuah or Dt. Tuah Basa, it would be rather obvious that they were a baZahan of Dt. Tuah in. CKL, indeed. But with a Dt. Basa -where is the connection? And if they were a real baZahan, there should still be some s(]};)ah pusako of them in CKL". In the KAN meeting, St~ Pangeran had neither accepted any other modalities for the inheritance of his property which hwi been indicated by the panghuZu. He did not want to make sando agung: to give his property to his children. Af ter their death, it would then fall back to the suku. Neither did he want to make sando kudo: to pawn (gadai) it to his children. And he also did not accept the last possibility mentioned by Dt. Panghulu Rajo: "Tuan St. Pangeran boZeh bagundik ka urang Guci-St. Pangeran, you may take a concubine from Guci. Choose a woman and marry her". As the exogamy prohibition would be violated, a ceremony would have to be held and St. Pangeran would have to slaughter a buffalo for the ceremonial meal. But the breach of exogamy would be healed by the ceremonial meal and the marriage would be validated by CKL. The harato pusako thus could be saved for suku Guci. But St. Pangeran did not want this. On the contrary, shortly aftelwards he married a young woman from suku Caniago.

And then there was still the problem of Angku Mudo,who claimed to be a kamanakan of Dt. Tuah. In the KAN they had not been able to settIe this question, and Angku Mudo had brought the case to the State Court. His mamak, Angku T., he claimed, had controlled the s(]};)ah in dispute and had always taken its harvest. But af ter Angku T's death, St. Pangeran had sold the s(]};)ah to KB from suku Selayan. But he could not do '50: For he, Angku Mudo, and St. Pangeran were of two jura i in the same kaum. Between the two jurai there had never been a distribution of the harato pusako in the IDallller of ganggam bauntuek, the property had just been used together (beZum pernah diZakukan pembahagian terhadap harta hutan tinggi secara ganggam bauntuek masing2 jurai atau anggota kaum Zainnya, meZain-

FULFILMENT OF TIIE FUNCTION 257

kan dimiliki secara bersama2 saja dalam kaum). As the property which had been sold was harato pusako turun temurun in their kaum, he claimed that the sale was void and that the property should be returned to the kaum. According to St. Pangeran, Angku Mudo and he were not sakaum saharato sapusako. His own panghulu was Dt. Tuah. The panghulu of Angku Mudo was Dt. Panghulu Ali. His own graveyard was in J., the one of Angku Mudo in

1.L. They were of different rumah gadang, too. The pusako of Angku Mudo had no corrnnon borders with his. Angku Mudo had never participated as waris in pawning transactions. Finally, if St. Pangeran should die, his closest heir would be St. Rangkayo, not Angku ~fudo. The second defendant, the buyer of the property, stated that it was true that he had bought the sawah. This had been in 1962, and he had bought it from H. Barudin, the elder brother of St. Pangeran, with the consent of Dt. Tuah who then was still alive. Witnesses were heard: Some gave very vague statements: They '~ad heard" that the parties were sekaum or sesuku. Another witness stated that,when he had married a kamanakan of Angku Mudo,Dt. Tuah had acted as adat guardian (wali adat) for his wife. But according to another witness, an adat expert from CKL, this did not mean that Angku Mudo was a waris of Dt. Tuah. For according to the marriage law, one must have the consent of the panghulu for the marriage. As the panghulu of Angku ~Wo was not instalIed, Dt. Tuah had taken his place. Thus if Dt. Tuah had acted as adat guardian, one must very weIl differentiate whether he had done 50 in his buah gadang or in the suku Guci in general. There were other points which had to be weighed carefully: All Guci nan 4, (the four buah gadang Dt. Tuah and the other buah gadang, including Dt. Panghulu Ali) had, in the colonial era, ''paid the debts of Dt. Tuah". I.e., they were people 'who payed debts together, and who received outs tanding debts together" (utang samo dibaie, piutang samo ditarimo). But according to the same expert, this did not necessarily mean that they all were waris. For the maxim: "mamak dipintu utang, kamanakan dipintu bayaran" - "If the mamak stands at the door of debts, the kamanakan stand at the door of the paying", was valid in the whole suku: If the kaum of Angku Mudo had contributed to the payment of the debts, this did not mean that he was a waris. Another incident, however, was considered to be much more important: Two witnesses declared that Angku Mudo had, af ter Dt. Tuah had died in Lasi, ''brought the mattress" to Lasi in order to fetch the corpse of Dt.

PROPERlY IN SOCIAL CONTlNUIlY

Tuah to his rumah gadang and to carry out the mati batungkek budhi-panghulu installation. But this had failed. (Kaum Penggugat ada membawa kasur ke Lasi guna mejemput mayat H. Dt. Tuah tetapi kasur tersebut tidak dipakai, dan begitu juga usaha penggugat untuk membawa mayatnya kerumah penggugat untUk melakukan batungkek budi gala Dt. Tuah ti dak berhasil). This was a clear sign that Angku Mudo and Dt. Tuah were not of one kaum. For even if Angku Mudo had not succeeded in bringing the corpse of Dt. Tuah to his house, he would have had to be successful in his at tempt to succeed Dt. Tuah if he really had been of one kaum with Dt. Tuah and St. Pangeran. If the latter had opposed the succession, his opposition could have been overridden by a decision of the Guci nan 4 or the KAN. The Court rejected Angku Mudo's claim. It accepted that Dt. Tuah was the panghulu of St. Pangeran (which was undisputed) and that Dt. Panghulu Ali was the panghulu of Angku Mudo. This alone already showed, that Angku Mudo and St. Pangeran were not of one kaum anymore (tidak sekaum lagi), as it is impossible "that two cocks are within one ricepot" (karena tidak mungkin dua ekor ayam gadang selasung); that there are two panghulu within one kaum. Another point was that the mattre.ss had not been used. "For the mattress which is sent to fetch the corpse rust be used if the deceased is a close kamanakan, a member of our kaum".

Discussion: We should note the different uses of the terms denoting the groups; of jurai, kaum and buah gadang. The court consistently spe aks of kaum, and the parties adapt their arguments partly to that usage. But it is quite clear, that what the court understands under "kaum" is a buah gadang in CKL, not the group which is called kaum in CKL. The statement that there cannot be two panghulu in one kaum, would be senseless in reference to a CKL kaum, i t only makes sense to a group under a panghulu, which in CKL is the buah gadang. St. Pangeran could thus successfully establish in court that his buah gadang was extinct and that Angku Hudo could not prevent him from dis-posing of the property. In fact, St. Pangeran had not done anything -

it had been his elder brother who had sold the sawah. What will happen

af ter St. Pangeran's death is still open. If he does not adopt his balahan, the other Guci nan 4 will inherit his property. Who exactly will get it, is uncertain. It is a matter for the other three buah gadang of Dt. Tuah to handle; they must discuss this question.

OF 1HE FUNCTION 259

IV. INTER-STRATA RELATIONSHIPS

It is extremely difficult to get information about property relationships between individuals or groups which belong to the different social strata within the same buah gadang or kaum. Or rather, it is very easy to get abstract elaborations of the adat in this matter, on the classification of the kamanakan, on their respective rights and duties, etc. But it is difficult to have these illustrated by concrete examples in which these relationships have become relevant. For "one does not speak about it". Referring to living persons or groups as the descendants of former strangers or slaves, is impolite and insulting. It would make the pers ons referred to maZu, ashamed, and it is one of the basic principles of adat morality that one may not make other people ashamed, 'maZu indak buZieh diagieh". What is a likeable trait of adat makes things difficult for the anthropologist who, though willing to conform to the adat and its forms of politeness, is nevertheless very much interested in such "unpleasant things". The degree to which he is told about i t depends very much on chance and on how far he is trusted; trusted that he will not teIl others what one has told him. If information is given at all, it is usually clothed in subtIe hints and allusions the understanding of which of ten presupposes the knowledge which the hints contain. This bar- rier is quite strict for discussions of the status of the orang datang, strangers, and it is very strict for the status of the descendants of farmer slaves. If the relationships between the strata are good, and if the legal cansequences of the relationships are not questioned, then the status differences will generally be explicitly denied. But sometimes, references to the lawer status of others must be made: when there is trouble about property. In emotionally heated discussions, the threshold of maZu is more easily crossed; and it has to be crossed when the legal cansequences of the inter-strata relationships have become problematic.

1. The Deseendants of SZaves and Their Mamak Problems between the kamanakan bataZi darah, the blood relatives of the group ancestress, and w~eir kamanakan dibawa Zutuik arise when the latter do not acknowledge their duties towards their former masters or asSlD1\e the same rights as the kamanakan bataZi darah. The following story tells of such "impudent" kamanakan. It was extracted from AB 11: 74 ff. and took place in the nagari Selayo in the beginning of this century:

IN SOCIAL CONfINUITI

On December 3rd 1901, I. gala Raja Kecil Besar (RKB) instituted proceedings before the Rapat of the Tuangku Laras against his kamanakan dib(7J;)a lutuik under their mamak, Muara gala Bagindo nan Hitam (BN!-!). The kamanakan of BNH were the descendants of a female slave whom the ~ of the plaintiff had bought. The conflict concerned the harato pusako which had been given to the defendants for their living. RKB complained, that the kamanakan dib(7J;)a lutuik denied their (slave-)descent and claimed equal right to the harta tua of his lineage, and that they had allowed themselves acts which were the privilege of owners whereby the danger had arisen that the property would be lost to the family (the kamanai"n had pawned the property). He had therefore demanded that the property should be returned to him. If the kamanakan dib(7J;)a lutuik stopped their disrespectful attitude, they would, of course, be given s(7J;)ah again. The Rapat of the Tuangku Laras endorsed RKB's claim (10.12.1901). The defendants, however, did not comply with the judgement. So the plaintiffs invoked the authority of the Dutch district officer (Assistent Resident, AR). The AR also endorsed the judgement and ordered its execution by the police. The defendants did not appeal the judgement but adopted another strategy: They made an application to the AR, asking that the adat functionaries should be orde red to grant them some part of the nagari's tanah ulayat in ownership (eigendom; what probably was meant was to give them their own harato pusako). When the AR refused to do 50, they made an official petition to the Governor General of the Dutch East Indies: The Government, which had freed them as slaves, should also give them some land in the nagari. The AR advised against such a measure. He remarked, that the kamanakan dib(7J;)a lutuik could not break the bonds that tied them to their mamak, even if they had been freed as slaves. And it would be contrary to adat, if they we re given tanah ulayat by the government. The ensuing debate between the Dutch administrative officials illustrates weIl the reality of socio-political control over ulayat property in the West Sumatran nagari as weIl as the position of the mamak vis-à- vis his kamanakan dib(7J;)a lutuik. The highest judicial functionary of the Colony, the Directeur van Justitie in Batavia (Jakarta) expressed his view in a letter to the Governor of West Sumatra (8.12.1903) in which he disapproved of the attitude taken by the AR:

FUNCTION 261

1. If the AR had stated that a grant of the tanah ulayat was contrary to adat, this was a very incorrect view of the problem. For the tanah ulayat feIl under the Domeinverklaring of 1874, according to which all land not held in eigendom had been declared the domain of the State. If the rights of the panghulu were to be recognized at all, they were in any case subject to the rights of the Government flowing from the Domain-Declaration. Perhaps a grant of eigendom could not be given, but a grant of heritable lease (erfpacht) should certainly be possible. If in the nagari there was no more tanah ulayat, then one could find some in the neighbouring nagari.
2. The request should in any case be favourably received. For the Government had abolished slavery, and what would remain of the new freedom, if the descendants of slaves continued to be economically dependent on their former masters? Would they not be completely subject to the whims and the grace of their masters? The petitioners wanted to be free, to be free completely, and yet there were Dutch administrative officials like the AR who insisted that the abolition of slavery could never break the relationships between slaves and their former masters! The Government should support the rights of the former slaves as much as possible. The Directeur van Justitie concluded that it would be most appropriate if the petitioners would be granted some ulayat land, either in eigendom or in erfpacht. The AR andtheResident of the Padang Highlands contradicted his view and elaborated the adat-position in their reports to the Governor (AR to Resident 16.1.1904, Resident to Governor of West Sumatra 3.2.1904). They advised that the petition should be rejected:
3. In adat, the panghulu as representatives of their families had the hak ulayat (beschikkingsrecht). This was, of course, contrary to the Domain-Declaration, which had transferred the right to dispose of ulayat land to the Government. But the Domain-Declaration had been brought as little as possible to the attention of the adat functionaries, and the Government itself had wisely never pressed the enforcement of the Domain-Declaration in West Sumatra. That had been a wise policy, and it certainly should be adhered to in cases of this kind. Besides, the Government itself did not completely comply to the rules of the Domain-Declaration. For there had been a regulation for West Sumatra tha~ if a parcel of the

PROPER1Y IN SOCIAL CONflNUI1Y

ulayat were to be granted, this should be done only af ter consultation with the population, and that the grantee should, as a sign of the recognition of the panghulu's rights, pay him the bunga kayu-fee (see Chapter 4: 143 ). The administrative officials had even been prohibited from registering agrant if the demanded fee had not been received by the ones entitled to it (AB 11: 88). One should therefore consider the following: If property was given to the petitioners of family A, next would come the kamanakan dibawa lutuik of family B and C etc. One would have to realize further, that all these kamanakan would be persons who had broken the relationships wi th "their" families and who would consequently have been expulsed from their families and from adat-what would their position be in the nagari? And the panghulu, who highly valued their right to the fees, would certainly not be willing to accept

it from "such people" who stood outside adat. If the Government were to

disregard all these factors, the consequences would be unforseeable ...

2. Both officials also pointed out that, though the abolition of slavery did set people free, it could not do away with the mamak~amanakan relationship. As one could not become a slave in one's own nagari, all descendants of former slaves were, in addition, also strangers in the nagari. If they were willing to stay in the nagari af ter their freedom, they had to be accepted as kamanakan by one of the lineages. Once adopted, they would be given property for their living, but this property would always remain the harato pusako of their mamak's lineage. Strangers could be given some harta tua, original harato pusako, when their mamak's lineage was extinct, but kamanakan dibawa lutuik could never inherit such property or the sako of their mamak (AB 11: 82). Thus if the relationships between the mamak and the kamanakan dibawa lutuik were broken, at the same time the le!!itimation on which the latter possessed the property would vanish, for their kamanakan status was their only legitimation to property in the nagari. The status of kamanakan dibawa lutuik was in some respects, not so different from the status of kamanakan batali darah. These, too, owed obedience and respect to their mamak. and they, too, could be expelled from their family and could be deprived of their harato pusako (dibuang) if they persistently behaved disrespectfully towards their mamak. The respect which BNH and his kaum members owed to RKB was due to their position as kamanakan. not as kamanakan dibawa lutuik. (NB: The officials here

RJLFIIMENr OF 1HE FUNCfION 263

forget that the kamanakan (batati darah) become mamak themselves in time, whereas the kamanakan dibC1J.,)a tutuik remain kamanakan for ever.) Their petition should therefore be rejected. And i t was rej ected by the Govemor General of the Colony on the bas is of these advisory opinions. By Decree of 24.6.1904 it was decided that: "taking into consideration that the petitioners would be given enough property for their living by their mamak, if they behaved according to adat, there was no reason for the Government to take any measures in the case".

2. The Desaendants of Strangers It is difficult, for the reasons already stated, to assess the extent to which, in contemporary Minangkabau, status differences and their legal consequences in property affairs are still observed. In theory (which is derived from interviews) nothing has changed. But there are only a few cases in which the inter-strata relationships and their legal consequences do become relevant in a dispute. The following case, which was decided by the PN Batu Sangkar in 1970 (case 1 of 1970) is an indication that the courts still recognize the status differences. The plaintiff, one Dt. Tan Maj 0 Lelo (TML), claimed that the ti tle wom by the defendant, Dt. Maminjun (M), was the title of his kaum. When his mamak was still alive, the title and some harato pusako of his kaum had been "borrowed" by the defendant's kaum. Now he reclaimed both ti tIe and property. The defendant denied this and replied that both title and property were turun temurun in his kaum, and that Dt. TML had the status of stranger (orang datang) in his lineage and therefore no rights at all to the pusako and sako. During the process, the following document was introduced as evidence. It was a "MusYC1J.,)arah Decision Letter" (surat keputusan kebutatan) of the lineage elders of the suku of both parties: We, the ninik mamak of suku X nagari X,
1. Having considered:
a. The results of the MLJBES of all West Sumatra of 1966,
b. The results of the Decision of the Kerapatan Adat Nagari X about the termination of the panhutuship in adat of Dt. M,
2. Having read the MusyC1J.,)arah Decision Letter of the kaum of Dt. TML,
3. Taking into consideration the genealogy which has been forwarded by Dt. TML, herewi th decide:

PROPERTI IN SOCIAL CONfINUITI

The gala which is used by B. Dt. M. is transferred (memindahkan) to B. Dt. 1ML, and the gala Dt. 1ML is transferred to si L. Signed: We, the ninik mamak of suku X.

1. Dt. BNH. 2. Dt. BNK. According to this document, the title of Dt. M. had been transferred
   to the plaintiff 4 years ago. Why then did he claim? It seems that the transfer had not worked. B. Dt. M. had continued to use the title and to exercise the function of panghuZu. So the plaintiff tried a new course of action. In his argumentation, he did not rely on the document just quoted, for from the document one would rather infer that the defendant was the real Dt. M. And he also did not seem to have much faith in the validity of the transfer. Why, is illuminated by a document which was introduced as evidence by the defendant: A letter of Dt. BNK, one of the signatories of the 1966-document:

'Herewith I decIare that I withdraw my signature under the letter which is called Musy(J);)arah Decision Letter of the Ninik Mamak of suku X. I do 50 for the following reasons:

1. What is cal led the decision letter, in reality does not exist, as there never was a meeting and a musy(J);)arah of the Ninik Mamak of suku X.
2. This so-called decision letter was just given to me for my signature.
3. I was forced to sign this letter, and I know that it contained no truth and did not fulfil the requirements of adat. But at that time I was forced by Dt. 1ML who had become WaZi Jorong (village district head) then, and thus for the sake of my security I signed the letter which was put before me". "At that time" was theaftermath of the GESTAPU, the attempted "coup d'état" of 1965, af ter which the members of the Communist Party were persecuted throughout Indonesia. At the MUBES of the LKAAM of 1966 it was decided that members of the PKI could not be panghulu any more. Pressure was brought upon the nagari to conform to this ruling, and the result of this probably was the decision letter of the KAN mentioned above, by which the panghuZuship of Dt. M. had been stopped. Dt. TML, apparently a follower of the New Order, had become village district head, using his new power to make property- and title polities. But, as his court suit shows, adat was stronger.

OF 1HE FUNCfION 265

His claim was rejected by the court. The court's main argument, which had been taken over nearly word for word from a rejoinder of the defendant, was: 'The plaintiff obviously has. no right to the title. Both parties are members of suku X, but the positions of Dt. M. and Dt. TML cannot be said to be equal. Dt. TML (the title) does not belong to the sako/gala which are functional (fungsioni l) in the payung Dt. M. Dt. TML belongs to the payung of Dt. M., but one cannot say that he is someone 'who sits equally low, and who stands equally high' (duduk samo rendah, tagak samo tinggi). His position is rather like that of a waris orang datang, who in former times has been accepted as kamanakan by Dt. M.". This is rather strong language for a Minangkabau judge. But the reference to the lower status of the plaintiff had to be made, as to explicate the reasons on which the judgement was based. (Incidentally, the advocate of the plaintiff threatened to file a libel act ion against the defendant's advocate because his client had been called an orang datang.)

V. 1HE GlILDREN -KAMANkKAN CONFLICT The "classicai" conflict in Minangkabau inheri tance affairs was the situation in which the children and the kamanakan of a deceased pancaharian holder disputed the inheritance of their father's/mamak's harato pancaharian. In contemporary Minangkabau, these cases more or less belong to the past, as it is now generally acknowledged that "harato pancaharian are inherited by the children". Of the 492 property disputes brought before the PN Bukit Tinggi, Batu Sangkar, and Payakumbuh between 1968-1974, only 42 cases (8.5%) concerned pancaharian inheritances. In the 25 cases in which the property was disputed between "the children and the kamanakan", the legal status of the property object -pancaharian or pusako-was in dispute. Once the legal status of property objects as harato pancaharian has been unequivocally established, no more disputes between children and their father's kamanakan arise. But as has been mentioned earlier, this general rule must be qualified. As far as pawnings are concerned, all will depend on the question of to whom it was that the pawner/pancaharian holder had intended to give the pawnings. The answer depends on the location where the ceremony was held, or to whom the pawner had given the document by which the transaction was evidenced. In addition, the rule only applies to harato pancaharian which are "pure" pancaharian and which have not been acquired with the help of harato pusako.

PROPERIY IN SOCIAL CONfINUI1Y

1. The Disputed Legal Status of Harato Panaaharian In CKL, there had been only one case recently where the property of a father had been disputed between children and kamanakan, and it concerned pawnings. This was the case between Bagindo Endah,the son of Haji Amir of suku Caniago, and Taher St. Palimo of suku Caniago who claimed to be a close kamanakan of Haji ~r.The dispute was ab out two rice-fields which Haji Amir had controlled during his lifetime, and which Bagindo Endah had worked since 1954. According to Bagindo Endah the reason for this was that he had loaned 5 rupiah emas to his father, and in exchange his father had let him work the fields. Besides, the fields were his father's harato panaaharian and should be inherited by him anyway. It was true that the fields belonged to the harato pusako of Haji Amir's kaum, which was now extinct, but they had formerly been pawned and Haji Amir had redeemed them with his panaaharian-money. Taher St. Palimo claimed that the fields were harato pusako of Haji Amir, and that he and his kaum were the heirs to that property. About pawnings and redemption he had never heard anything, and he doubted it as there were no written documents. Besides, nobody had ever heard that Bagindo Endah had loaned money to Haji Amir. His mamak, at least, had never mentioned such a thing. The Wali Negen had unsuccessfully tried to settle the dispute, and a musyawarah had been held in the hindu Caniago 5 Rumah under the chairmanship of Dt. Panghulu Rajo. The panghulu and elders who participated in this meeting had decided that the fields were harta tambilang emas, for Ot. Panghulu Rajo had known of the pawning transaction which had taken place in 1942 and of Haji Amir's redemption in 1947. As redeemed property it was tambilang emas and should be inherited by the children. The heirs of Haji Amir had, of course, always the possibility of redeeming the fields from Bagindo Endah. But Taher St. Palimo had refused to accept this decision, and the case had gone to the Camat. The Camat had confirmed the right of St. Palimo. As Bagindo Endah did not think of giving the fields back, Taher St. Palimo took the case to the State Court (case 9 of 1968 PN Bukit Tinggi). Here the problem became even more complicated, as another kamanakan of Haj i Amir, Ishak St. Palimo had instituted proceedings against Taher St. Palimo at the same time, claiming that his kaum was the real heir of Haji Amir (case 18 of 1968 PN Bukit Tinggi), whereas Taher was of a different kaum and even buah gadang. Many witnesses were heard in court. Most stated that Taher St. Palimo was the closest heir to Haji Amir, and that he andhis kamanakan Malim

FUNCfION 267

Palimo had acted as Haji Amir's heirs in several instances. Bagindo Endah held to his version. Although Dt. Panghulu Rajo substantiated the story of the pawning and redemption, the court was not convinced, for there was no further evidence, and Dt. Panghulu Rajo had "only heard" it. For the alleged borrowing of the 5 rupiah emas there was no evidence either, and 50 the court decided that the property had been harato pusako and should be inheri ted by the kaum of Taher St. Palimo, in disregard of the decision of the panghulu of Caniago 5 Rumah. It should be known, that among the suku elders of Caniago 5 Rumah who had given this decision, Ishak St. Palimo acted as representative of Dt. Palimo. One of the wives of Dt. Panghulu Rajo was a kamanakan of Dt. Hitam, the mamak of Bagindo Endah. Bagindo Endah appealed (case 20 of 1972 PT Padang). His appeal was rejected and little was added to the judgement of the PN. But when we left CKL in the autumn of 1975, Bagindo Endah still worked the fields, and there was talk about a further appeal to the Supreme Court.

Discussion: In this case, the kamanakan won. But we can note that the panghulu (of the kamanakan) were willing to acknowledge the harato tambilang emas status of the property, even though the land was still harato pusako of the recipient's father's kaum. It would not have been the land, which Bagindo Endah would have inherited, but the money invested in it. If Bagindo Endah had been able to prove the redemption by his father, the court would probably have awarded the property to him.

2. The "Impw>e" Harato Panaaharian In the following story, the legal status of property objects is in dispute, too. The dispute does not concern the alternative, pusako turun temw>un or panaaharian, but the character of the panaaharian-status. The story is from the records of the Religious Court in Bukit Tinggi (case 238 of 1972): In 1972, a young man approached the Religious Court with a claim against his bako. His father, who had been a merchant in Medan, had recently died and he had Ie ft some property in the nagari; 4 fields which he had bought (worth 234,000 rupiah) and another field which he had pawned (worth 26,000 rupiah). These fields had been bought and pawned by the father wi th his own money. The property therefore was the private property of his father (hak milik dari bapak) and should be divided according to Islamic law. As the kamanakan of his father occu-

PROPERTY IN SOCIAL CONfINUITY

pied these fields and did not want to deliver them to him, he had been forced to bring the suit befare the court. His father's kamanakan did not deny that their mamak had indeed bought and pawned the fields in question. But they stated that when their mamak had gone to Medan in 1927, he had been given same money, two ringgit emas, by his mother. The money had been acquired through the sale of rice of his mother's (jurai's) harato pusako. Befare he had left, his mother had made an agreement with him: "If the money which I give to you should increase, whatever you do with it and whatever you buy with it, will be the property of my grandchildren in this house"(i.e. of the grandchildren by her daughters. Her son's children would be anak dirumah Zain, children in a different house). The kamanakan put in a counterclaim: The property mentioned by the plaintiff was not the only property which their mamak had left. There was a house in Medan (worth 4 Mill. rupiah), his trading store (worth 6 Mill. rupiah), and same more rice-fields which their mamak had pawned, partly in his own name, partly in the name of his wife (all together worth about 62 rupiah emas). They claimed all this property, as it was harta pusaka tinggi (karena keseZuruhannya adaZah harta pusako tinggi). Witnesses were heard. Two aId men stated that they had been present when the plaintiff's grandmother had made the agreement with her son, and that its contents were as stated by the defendants. Other witnesses confirmed that they had sold or pawned to the plaintiff's father and that this was done in the house of the defendants. With whose money the fields had been bought, however, they did not know.

The Religious Court did not decide the inheritance question, but denied its jurisdiction and advised the parties to have the matter judged by the State Court. The reaction of the Religious Court is very interesting. One would have expected that it would eagerly accept the chance to try a case over the inheri tance of harato pancaharian, for undoubtedly the money of the plaintiff' s father had been acquired as a result of his trading activities in Medan. But the court adopted a very cautious and conservative approach. It had been proven by the parties, the court stated, that the fields in question had indeed been pawned and bought. But it had not been proven that the money with which this was done had been in the "fun ownership" (hak mUik penuh) of the plaintiff' s father. As the witnesses had stated, the money was derived from the harato pusako CadaZah barasaZ dari harta pusaka).

OF 1HE FlJNCfION 269

The court rejected claim and counterclaim "as the money of the buyer and pawnee of the fields was not the full ownership of the plaintiff's father, but was part of the defendants' harato pusako ( ... uang pembeZi dan pemagang sawah2 tersebut tidak hak miZik penuh oZeh bapak penggugat, termasuk harta pusaka dari tergugat)." The court thus explicitly acknowledged that the money was no "normal" pancaharian which would be inherited in accordance with Islamic law, or at least by the children. 5 Although it was not explicitly mentioned by the court, I should like to drawattention to the witnesses' statements that the transactions had been carried out in the defendants' house, in the house of the kamanakan. This alone was strong evidence that the pawned or bought property was destined for the kamanakan and not for the children.

VI. 1HE RELATIONSHIPS BETWEEN 1HE GlILDREN

Since the potential conflicts between the children and the kamanakan over their father's/mamak's harato pancaharian have lost in importance, a new problem has arisen. Once it has been acknowledged that the harato pancaharian are inherited by the children, the question arises: by which children? This can be particularly problematic, if the deceased had been married to several wives during his lifetime and has children by more than one wife. The following story deals with such a situation. It shows afather acting in it, and for a change it is a story almost free of conflict. The central figure is Haji Hassan, the son of Angku Mudo (in the story of "Extinct Buah Gadang") and father of Dt. Batuah Rajo.

Haji Hassan was (in 1975) 72 years old. He was rather weIl off and lived on Bukit Tinggi, and he only rarely visited his nagari. His gaZa is St. Nagari, but since he made the pilgrimage in 1957, he does not use the ti tIe any more but prefers to be addressed as "Pak Haj i". H. Hassan had married four times (see diagram). The first marriage had been with Fatimah from suku Selayan. This had been a matrilateral CCM,for his mamak, Haj i Mahmud, had been married to his wife' 5 mother. Wi th Fatimah he had three sons, one of whom had already died. About Dt. Batuah Rajo we have already heard; his younger brother Dahlan lives in Jakarta. The second marriage had been with Upiek from suku Guci. This had been a patrilateral CCM. He had a son from this marriage, but the marriage had already been dissolved for some time. The third marriage, to Haji Jamilah