Rethinking legal pluralism : minority adjudicative rights between pre-modern Islam and the modern nation-state

Abstract

Article 2 section 1 of the Indonesian Marriage Law (Law no. 1 of 1974), which grounds the validity of a marriage in the religious law of the contracting parties is commonly read as evidence of the state accommodation of legal pluralism. This thesis contests that reading. Taking the adjudication of religious minorities in Muslim-majority states, this thesis advances a structural critique of the modern nation-state capacity to accommodate legal pluralism. In Indonesian context, the Muslim majority resolves dissolution within a state-facilitated religious court that preserves religious normativity, while the non-Muslim minority resolves it within the civil judiciary of National District Court on civil statutory grounds alone. Against the argument that legal pluralism accommodated by the modern state, this thesis argues that the pre-modern Islamic legal framework constitutes a wider pluralism in both internal and external aspects. Pre-modern Islam further extends toleration of religious difference than the modern nation-state framework permits. This thesis demonstrates that the Catholic marriage-dissolution decisions from the Depok National Court records between 2018 and 2023 shows that the court dissolves the marriage on statutory grounds alone and declines to recognize Catholic religious normativity as a relevant legal source. Through most similar case comparison, the study sets Indonesia against Egypt as a modern post-colonial Muslim-majority state that preserves substantive religious-based law regulated by a public-policy. The analysis proceeds through colonial and post-colonial legal texts, with the Catholic minority in Indonesia and the Coptic minority in Egypt as the sub-cases. The Egyptian public-policy mechanism sustains religious normativity at both the formation and the dissolution of marriage, whereas the Indonesian arrangement preserves it only at formation, which establishes the subsumption of Catholic adjudication as contingent on a particular state configuration rather than determined by Muslim-majority governance.