Article

Customary law

From Munshipedia, the MBRAS digital historical encyclopedia

Customary law

Customary law in the Malay world refers to the body of indigenous legal norms governing land tenure, maritime commerce, criminal justice, and social hierarchy that operated across the Malay Peninsula and Borneo prior to, and in parallel with, the introduction of English and Islamic legal systems. Its significance lies in the fact that it constituted the operative legal framework for the majority of the population in the Straits Settlements and the Malay States throughout the colonial period, and that its interaction with imported legal orders generated some of the most consequential administrative and judicial problems of the nineteenth and early twentieth centuries. The literature preserved in the Society’s journals documents this body of law from its earliest codifications in the sixteenth and seventeenth centuries through its contested application in the courts of the 1950s, revealing a legal tradition that was neither monolithic nor static but characterised by regional variation, syncretic borrowing, and continuous negotiation between customary practice and formal doctrine.

Scope and Historical Definition

The earliest systematic attempt to define the scope of Malay customary law appears in the posthumous publication of Sir Stamford Raffles’ Undang undang (Institutes) of the principal Malay states, which catalogued codes from Kedah, Malacca, Johor, eastern Sumatra, and partial materials from Borneo, Java, Celebes, and the Sulu Islands [1, pp. 3–5]. Raffles designated the Undang undang Malayu, compiled during the reign of Sultan Mahmud Shah, as the principal text for commercial and maritime usages, supplemented by the Institutes of Johor for civil and criminal law [1, p. 4]. He observed that the codes of each state shared a general accordance, differing only where “situation and superior advantages or authority have naturally dictated” variation [1, pp. 2–3].

The most extensive early treatment of customary land law is W.E. Maxwell’s 1884 study, which established that the fundamental unit of Malay land law is the distinction between tanah mati (dead land, i.e. uncleared forest) and tanah hidop (live land, i.e. land brought into cultivation) [2, pp. 79–81]. Maxwell demonstrated that the proprietary right was not ownership of the soil, which belonged to the Raja, but a usufruct created by labour, which was alienable, heritable, and terminable on abandonment [2, pp. 91–93]. He classified three types of live land—fruit-gardens, wet rice-fields, and hill-farms—each with different rules governing the duration of the right after occupation ceased: in wet rice-land (tanah bendang) the right lasted three years after abandonment; in fruit-gardens (tanah kampong) it endured as long as any fruit-trees survived; in hill-farms (tanah huma) it lasted only for the single season of occupation [2, p. 80].

The Kedah Laws, edited by R.O. Winstedt in 1928, provide a further dimension to the definition of customary law by revealing its administrative and commercial machinery. The port code of 1650 A.D. prescribes a customary tribute of 400 mas Patani from Kalinga ships and 600 mas from Gujarati ships, with the amount adjusted according to vessel size and cargo [3, pp. 3]. The same code specifies export taxes of 6 kupang gold per buffalo, 1 paha gold per elephant, and 1 emas per slave [3, p. 3]. The 1667 code establishes that a person who enters a village at night without a torch and resists arrest may be killed without legal consequence to the killer [3, p. 30]. These provisions demonstrate that customary law in the Malay states was not confined to agrarian or domestic matters but extended to the regulation of international maritime trade, the collection of state revenue, and the maintenance of public order.

A central question in the historiography of Malay customary law concerns the legal status of the written digests: whether they constitute authoritative statements of law, or merely political documents reflecting the aspirations of their compilers. M.B. Hooker’s 1968 note challenged the prevailing tendency to treat the digests as either complete legal codes or as worthless glosses, proposing instead that they are political documents that mirror the social and legal life of their periods while bearing significant Hindu, Islamic, and local customary influences [4, pp. 157–170]. Hooker surveyed five principal text groups—the Undang Undang Kerajaan (Perak, Pahang, Johore), the Minangkabau Digests, the Kedah Digest, the Malacca Digest, and the Ninety-Nine Laws of Perak—and identified a recurring syncretistic process in which Islamic law was grafted onto pre-existing customary and Hindu frameworks without fully displacing them [4].

A key argument in Hooker’s analysis is that the digests’ incompleteness is not the product of aristocratic suppression but reflects their assumption of an already-existing body of private customary law that they do not enumerate [4]. The digests’ internal inconsistencies left room for local rulers to exercise discretion, which in turn led later scholars to dismiss them as unrepresentative of “true” Malay law [4]. Hooker further demonstrated that the digests betray close structural affinities with the code of Manu, particularly in their ranking of penalties by social status and their biological determination of legal attributes through birth and sex [4].

The Undang Undang Sungei Ujong (Maxwell MSS. 118, 118a) explicitly states that “created custom” may contravene Islamic canon law if introduced with due ceremony, such as the sprinkling of rice paste or the slaughtering of buffaloes—neither being Koranic [4, p. 160]. Folios 61–62 of the Malacca Digest (Raffles MS. 33, copied at Penang in A.H. 1220/1805) are addressed to Allah and ask forgiveness because many subsequent laws violate Muslim law, pleading that the rendering of traditional custom helps preserve peace [4, p. 163]. J.E. Kempe and R.O. Winstedt, in their 1952 description of the same manuscript, confirmed that the preface on folios 61–62 provides important context for understanding the relationship between Islamic jurisprudence and local Malay customary law [5].

The question of present-day legal relevance was examined by Hooker through statute books and case law across the Straits Settlements and the Malay states. He found that while certain provisions of the Malacca Lands Customary Rights Enactments (1861, 1886) parallel digest provisions on tithe tenure, the enactments were designed to settle Dutch proprietary claims rather than preserve native land tenure [4, p. 167]. In the Malay states, cases on harta sapencharian and harta sharikat invoke “Malay adat” as part of the general law of the state without ever citing digest provisions directly, suggesting that the operative customary law is the body assumed by the digests rather than the digests themselves [4].

Maritime Law and the Nacodah’s Authority

Raffles’ Maritime Code presents a distinctive aspect of Malay customary law that has no parallel in Arab or European sea codes: the Nacodah’s (captain’s) power of life and death, which Raffles identifies as “purely Malayan” [1, p. 20]. Arab maritime law nowhere admits a captain’s authority to inflict capital punishment [1, p. 20]. This provision, preserved in the Undang undang Malayu and the Institutes of Johor, represents what Raffles regarded as a purely indigenous legal innovation [1, p. 20].

The Kedah port laws of 1650 elaborate the practical machinery of maritime customary law in considerable detail. Vessels on arrival were required to fire a gun, after which the warden at the river-mouth (Panglima kuala) would report the vessel’s origin, the captain’s name, the number of crew, tonnage, and cargo to the harbour-master (Shahbandar), who would in turn report to the warden of the port (Panglima Bandar), who would inform the Raja [3, p. 5]. Captains of ships from Kalinga were required to present the warden of the port with a long puadam cloth of the value of one paha of gold; captains from Gujarat with a roll of cloth from Baruch [3, p. 6]. The harbour-master and his police were required to inspect the market daily to prevent gaming, cock-fighting, opium-smoking, drinking spirits, unlawful sales, and quarrels [3, p. 22]. No buffalo could be slaughtered except under the seal (chap) of the harbour-master to prove the identity of the beast and its owner [3, p. 22].

The Qanun Law of Dato’ Kota Star codifies the principle that certain officers become “raja” (sovereign) in specific functional contexts: the Laksamana at sea, the Temenggong during a night patrol, the Bentara in the audience hall, and the Kathi when pronouncing Islamic law—even the Raja himself must submit to the Kathi’s judgment on that day [3, pp. 35–36]. This principle of functional sovereignty, in which authority is derived from the performance of a specific duty rather than from hereditary rank, is a distinctive feature of Malay customary law that distinguishes it from both Islamic jurisprudence and English common law.

The most consequential encounter between customary law and an external legal system occurred in Malacca after the British took over the settlement in 1825. Maxwell traced the legislative history from Regulation IX of 1830 through Act XXVI of 1861, showing how each measure was undermined by the absence of local legislative power, the judicial introduction of English law by the King’s Charter, and the inability of the Land Office to distinguish old customary holdings from new encroachments [2, pp. 149–164]. The Dutch had granted interior lands to a few privileged individuals as terres particulieres—essentially Zamindari rights to collect the tenth—but British officials misread these as freehold ownership [2]. Governor Fullerton redeemed these rights in 1828 for a total annual payment of 16,270 Sicca Rupees, but the subsequent attempt to impose English-style title deeds and leases on a population accustomed to customary tenure failed completely [2, pp. 153–154].

The case Abdullatif v. Mahomed Meera Lebe (1829) is significant because the court held that a sub-tenant who paid a tenth of produce enjoyed fixity of tenure and could not be ejected at will by the superior proprietor; the cultivator’s right was independent of the owner’s right, and each could alienate without prejudice to the other [2, p. 105]. Hooker noted that the Malacca Lands Customary Rights Enactment of 1886, section 33(1), provides for payment of one-tenth of profit as rent between landlord and tenant, a provision judicially approved in that case on the ground of being a “good and reasonable custom,” though no digest provision was cited in the proceedings [4, p. 167].

In the Malay states, the application of customary law in the courts generated its own body of jurisprudence. In Shafi v. Lijah (1949) MLJ 65, Callow J. held that where adat perpatih was precluded by non-endorsement of customary land, adat temenggong must be invoked as the alternative; Hooker argued this decision was unsound and contradicted by later Seremban Civil Appeals and by the authority of Taylor, Wilkinson, and Parr and Mackray [4, pp. 168–169]. This case illustrates the difficulty of applying a binary classification of adat to a legal tradition in which the relationship between adat temenggong and adat perpatih is far less clear-cut than the case law of the 1940s and 1950s had assumed [4].

Research and Documentation

The Society’s literature on customary law spans nearly a century and reveals a shifting of priorities from the codification and translation of primary texts in the late nineteenth century to the critical analysis of their legal significance in the mid-twentieth century. Raffles’ posthumous publication in 1879 [1] and Maxwell’s comprehensive study in 1884 [2] represent the first phase: a systematic effort to collect, translate, and explain the native legal codes for the benefit of colonial administrators. Maxwell’s authority derived from his position as Assistant Resident in Perak and his direct observation of pulang belanja and jual janji transactions in practice [2, p. 122]. His comparative method, drawing on evidence from Java, Ceylon, India, Burma, Siam, and Cambodia, was designed to demonstrate that the Malay system was not anomalous but part of a widespread Indo-Chinese pattern, and that the wisest colonial policy was to adopt and legislate the native system rather than to superimpose English law [2, pp. 133–148].

The second phase, beginning with Winstedt’s 1928 edition of the Kedah Laws [3] and continuing through the 1948 publication of the Pahang Kanun [6] and the 1951 note by Jakeman on another text of the same code [7], was characterised by philological rigour and the collation of manuscript variants. Kempe and Winstedt’s 1952 article on Raffles Malay MS 33 established that this manuscript provides variant readings that correct van Ronkel’s Malacca digest in at least 40 specific instances, and that it preserves unique legal material on adultery, divorce, property division, trials by ordeal, and Selangor slave law [5]. The Selangor Slave Law, which specifies redemption prices for fugitive slaves ranging from one kabat to sixty and a fixed rate of twenty rial for Malaccan slaves, was identified by the authors as “the first law published from that State” [5, pp. 18–19].

The third phase, represented by Hooker’s 1968 note [4], marks a shift from textual criticism to legal theory. Hooker’s challenge to Winstedt’s characterisation of the digests as authoritative statements of adat temenggong [4] and his demonstration that the operative customary law is the body assumed by the digests rather than the digests themselves [4] represent a maturation of the field from descriptive to analytical scholarship. The primary archival collections consulted across these phases include the Maxwell and Raffles manuscript collections in the Royal Asiatic Society Library, London; the Leiden University Library; the Berlin State Library; the Breda collection; the Bibliothèque Nationale, Paris; and the Batavia Society [4], [5], [3]. The Society’s journals thus document the complete arc of scholarly engagement with Malay customary law, from its first systematic codification for administrative purposes to its critical reassessment as a living legal tradition.

MBRAS Sources

Borneo

Malaya

References

  1. T.S. Raffles (1879). The maritime code of the Malays JSBRAS 4: 1–20.
  2. W.E. Maxwell (1884). The law and customs of the Malays with reference to the tenure of land JSBRAS 13: 73–220.
  3. R.O. Winstedt (1928). Kedah laws JMBRAS 6(2): 1–44. Read on JSTOR
  4. M.B. Hooker (1968). A note on the Malayan legal digests JMBRAS 41(1): 157–170.
  5. J.E. Kempe and R.O. Winstedt (1952). A Malay legal miscellany JMBRAS 25(1): 1–19. Read on JSTOR
  6. J.E. Kempe and R.O. Winstedt (1948). A Malay legal digest compiled for ‘Abd al-Ghafur Muhaiyuddin Shah, Sultan of Pahang, 1592–1614 A.D., with undated additions. .E JMBRAS 21(1): 1–67.
  7. R.W. Jakeman (1951). The “Pahang Kanun” of Sultan ‘Abdul Ghafur: another text JMBRAS 24(3): 150–151. Read on JSTOR