Adozen years after Vasco de Gama's epic voyage round the Cape of Good Hope to India's Malabar coast, the Portuguese in 1510 established a strongpoint at Goa, which thenceforth served as the linchpin of their eastern empire. Alfonso d'Albuquerque, the second Viceroy of Goa, extended the Portuguese presence further east a year later by leading a naval squadron across the Indian Ocean to seize the wellsituated port of Malacca. Discovering that Malacca was a distant vassal of Siam, he immediately dispatched an envoy to Ayutthaya (by Chinese junk) to inform the king of Siam of the Portuguese coup de main. The envoy was well received at the Siamese court and was pleasantly surprised to find that no objections were raised against the Portuguese initiative. Returning to Malacca by the overland route from Ayutthaya to the Andaman coast, he officially apprised the Siamese vassal ports of Tenasserim and Martaban of the new Portuguese presence and friendly intentions. And so, Portuguese relations with the Siamese kingdom started off on the right foot (Bidya 1998, pp. 29–76; Campos 1959; Silva Rego 1982).

A second Portuguese mission visited Ayutthaya in 1512. After a twoyear stay during which the envoy explored trade opportunities for the Portuguese Crown, he returned to Malacca and then Goa accompanied by a Thai embassy. In 1516, Malacca dispatched to Ayutthaya yet another ambassador, who managed to negotiate a treaty of “friendship and commerce” between the kingdoms of Siam and Portugal, the first Siamese compact with a European power. The treaty specified that the Portuguese would be permitted to set up trading posts at Ayutthaya and other Siamese ports, that they would supply Ayutthaya with guns and powder, and that they would be allowed to practise their religion openly and freely. The Portuguese settlement that subsequently emerged at Ayutthaya was headed by a series of captains-major (capitanães-mor), appointed — with the concurrence of the Siamese authorities — by the Estado Português da Índia, instituted in 1505 and headquartered at Goa. In practice, the Estado pursued a hands-off policy. Ayutthaya's Portuguese settlement was left largely to its own devices and, much to the liking of the Siamese authorities, frequently carried out its mercantile activities in defiance of Portuguese royal orders (D’Ávila Lourido 1996, p. 76).

OLD MON AND NEW

Over the course of the past millennium, a succession of Mon (or Raman) migrations crossed the Tenasserim divide from their Irrawaddy delta heartland in present-day Burma to settle in Siam's Chaophraya watershed. The earliest known instance of such migration created the fabled Mon kingdom of Dvaravati, centred along what centuries later came to be the western rim of the Thai kingdom of Ayutthaya (Dhida 1999). Each new migration encountered earlier well-established Mon communities at their journey's end. In many cases the encounter raised tensions between the old and new settler groups, and in each case the newly arrived groups, or “New Mon”, became, in due course, established communities, or “Old Mon”, who were to face yet newer bands of Mon immigrants in their turn. The distinction between Old and New Mon thus historically presented a “moving target” in the history of Mon migration into the Chaophraya watershed and their interaction with Thai civilization.

Ramanya Desa (Land of the Mon) is remembered as one of the great early civilizations of Southeast Asia. At its height, the configuration of Mon states collectively termed Ramanya Desa reached from the Irrawaddy basin and Andaman littoral over the Tenasserim hills across the Chaophraya watershed, from the Bay of Bengal to the Gulf of Siam. Over a millennium ago the Mon people adopted Theravada Buddhism as the cultural foundation of their vibrant civilization. Having absorbed and adapted much of their lifestyle from South Asia, the Mon in turn contributed greatly to the cultural evolution of their Southeast Asian neighbours, including the Khmer, Thai, Lao, and Burmans. But the halcyon days of Mon hegemony withered away many centuries ago under the mounting pressure of Thai, Shan, and Burman southward expansion, leaving a reduced Mon empire long known to the Thai as Hongsawadi (Mon: Haṃsavati; Burmese: Bago; English: Pegu). Subsequent centuries of Burmese depredations upon the Mon heartland radiating from Pegu to Yangon (English: Rangoon), Satem (Syriam), Sutham (Thaton), Molamloeng (Moulmein), Maotama (Martaban), Tawai (Tavoy), and Tanao-si (Tenasserim) left a much-diminished culture zone (Dhida 1999; South 2003, pp. 49–77).

In his article “Legal Pluralism and the Study of Sharīʿa Courts”, Ido Shahar presents several historical instances of legal pluralism and concludes by saying that “the time has come for a systematic assessment of the relevancy of a legal pluralistic perspective for the study of the sharīʿa courts”. He, moreover, comes forward with specific suggestions for future research. Shahar is concerned with legal pluralism as a theme in the sociology and anthropology of law in addition to considering it as an issue for legal theory. The purpose of the present study is to provide the reader with a general outline of the status of the sharīʿa within the Israeli legal system and its application in sharʿī, civil and tribal judiciaries. Some of the issues discussed here have already been dealt with within the context of legal history. In what follows, an attempt is made to present them in the context of legal pluralism.

Israel is a unique case of legal pluralism due to its unique legal history. With the collapse of the Ottoman Empire at the end of World War I and the occupation of Palestine by Britain, the country ceased to be part of a Muslim state, with all the legal consequences that involved, though the millet system as part of the Ottoman Muslim legal heritage — consisting of communal organization and autonomous religious courts — has survived, while adapting itself to the new political circumstances. With the emergence of the State of Israel, the Muslim community became a religious minority in a Jewish democratic state. The Muslim Supreme Council, established by the British Mandate in 1921 with a view to compensating the Muslim community for the lack of Islamic sovereignty, ceased to exist, and with it collapsed the entire Muslim establishment, including sharīʿa courts and the waqf administration. The religious elite left the country during the events that preceded the emergence of the state.

The new sharʿī judiciary in Israel has been integrated into the general judicial system. In 2002 it was subordinated to the Ministry of Justice instead of the Ministry for Religious Affairs.

This book stems from a symposium held at the Faculty of Law of the National University of Singapore on 27–28 September 2012 in honour of Professor M.B. Hooker. Professor Hooker was a pioneer in the field of legal pluralism. In fact, his scholarship laid the foundation of the field. His 1975 book Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (1975) was seminal and opened this field of study. The man has been tremendously influential.

In the first chapter of this book, entitled M.B. Hooker and Southeast Asian Law: Path-breaking Passions, Veronica Taylor traces the career of M.B. Hooker and gives us a list of his publications. I will therefore refrain from doing this in this preface. I will however state my admiration for the man and scholar. Professor Hooker has been very influential on me (and so many others), yet I met him for the first time only at the symposium we held in 2012. Although by all accounts M.B. Hooker has been generous in his personal support for young scholars, in my case, due to distance, his influence was not personal but truly merely intellectual, which makes it clear that the man has been a leader in the field.

The chapters of this book are very diverse, reflecting the breadth of legal pluralism and of M.B. Hooker's scholarship, which covered legal pluralism, Islamic law, Malaysian and Indonesian law, adat law, etc. I will not here introduce each of the chapters — the table of contents should suffice to show the breadth of this collection. It is however an homage to M.B. Hooker that colleagues with such diverse interests readily volunteered for a symposium and book in his honour — it shows the breadth of his own scholarship and its influence. All the chapters relate to legal pluralism. All of them relate to Asia (which goes as far as Israel).

I wish to thank my colleagues Veronica Taylor of the Australian National University and Michael Dowdle of the National University of Singapore for assisting me in editing some of the chapters of this book.

The seminal work of M.B. Hooker on legal pluralism needs no introduction. As its title indicates, his book, Legal Pluralism – An Introduction to Colonial and Neo-Colonial Laws, published in 1975, studied the forms of legal pluralism that are the result of Western colonialism. Hooker distinguished the plurality of sources of law within most legal systems from the legal pluralism of colonial and post-colonial systems which is characterized by the transplant of whole Western legal systems across cultural and religious boundaries. He wrote:

M.B. Hooker pointed out what was in fact new about this form of legal pluralism: the prominence of the idea of the state as the source of law – in the Western concept of law, the state is the ultimate source of law and other laws can only apply if the state allows it.

Malaysian Constitutionalism and the Indigenous Peoples

With increasing awareness of, and concern about, the legal position of indigenous peoples across the world, there is naturally increasing attention to the ways in which this position is affected by constitutional provisions. These days the concern also embraces the fact that indigenous peoples have their own legal traditions, or forms of “chthonic law” as Patrick Glenn has it.1 John Borrows, for example, in his book Canada's Indigenous Constitution, argues for the inclusion of indigenous law within the recognized legal traditions of Canada, and for this law to be taken seriously on its own terms, as well as protected by the Constitution. Hooker, in his extensive work on the indigenous peoples of East Malaysia (Sabah and Sarawak), was concerned with the adat of these states’ indigenous people. His work explores the nature and the detail of this law as it has been enforced in the courts in Sabah and Sarawak as an aspect of official or formal legal pluralism.

The intention in this chapter is not to explore this further or to distil anything of relevance to legal pluralism directly from Hooker's work; it is rather to explore the extent to which it is possible to assert that this pluralism has been constitutionalized — in other words, to inquire into its constitutional status within the Malaysian federation. However, in building on Hooker's extraordinary foundation of knowledge and understanding of adat, we should not ignore, as an aspect of legal pluralism, the relevance here also of how constitutionalism frames, recognizes, embraces or responds not just to the laws but also to the protection of the rights and interests, of indigenous people. The issue of recognition as such of adat, or what in relation to East Malaysia is known as “native law”, is relatively unproblematical, due to the prevailing legal pluralism in the legal systems of Sabah and Sarawak. The issue is therefore how far this recognition of legal pluralism is constitutionalized, and how far federalism, which was designed (in relation to Sabah and Sarawak under the Malaysia Agreement of 1963) to protect the rights of the indigenous people, has succeeded in doing so.

When there is plural normativity, competition occurs between different legal traditions. This seems the direct result of the plurality of norms itself, which leads to conflicts of law, especially on interpersonal matters among parties with different legal traditions. The current direction of legal pluralism studies seems to follow this trend, where the competition between different laws existing within national law occupies the central theme. The state factor is here understandably dominant since the study is preoccupied mainly with the state's role in the encounters and its efforts in the process of conflict resolution. Be that as it may, the approach used in this kind of study is always characteristically topdown, where the state, through its formal laws, is viewed as the main agent for the resolution of conflicts of laws. In our view, however, this method puts too much emphasis on the role of the state and neglects the real societal factors which lead people often to take active roles in the process of rapprochement between competing legal traditions. Using a top-down approach in the analysis of legal conflicts will therefore lead to the dire consequence of overlooking many actors and stakeholders involved in encounters between traditions.

In the context of present-day Indonesia, the situation of legal pluralism cannot be described as a static phenomenon where the competition between different legal traditions is understood as merely a domestic, single encounter between state law and non-state normative orderings. Especially in this new era where transnationalization overwhelms the nationalistic trend in the development of national law, the encroachment of international norms in the domestic sphere appears inescapable, with the result that the discussion of legal pluralism should not disregard the role and position of international law in the country's legal system. The discussion of competing legal traditions should therefore not only include those derived from domestic laws but also that of international law, as it is involved in the process of national law making.

Understanding the legal traditions of Southeast Asia through the lens of legal pluralism continues to present both promise and challenge. The significant work of M.B. Hooker has, among many other things, made a foundational contribution to our understanding of legal pluralism in Southeast Asia, and in particular to our knowledge of the development of fatwas, the opinion of Islamic legal scholars, in contexts such as Indonesia. In post-authoritarian Indonesia, fatwas remain an unofficial source of law in the eyes of the state. This chapter examines the role and authority of fatwas issued against so-called “deviant” religious believers convicted on charges of blasphemy under article 156a of the Criminal Code. This has been an issue of growing concern in Indonesia since the introduction of democracy and the process of decentralization in 1998, where an increasing number of individuals have been convicted for the offence of blasphemy against Islam.

The process of democratic law reform in Indonesia has focused attention on the development and reform of state law. This chapter seeks to promote a broader perspective that includes other legal orders by addressing the relationship between fatwa and state law and its institutions. In exploring this question, this chapter assumes that the state and religious authorities are not mutually exclusive centres of power. Religious authority cannot simply be understood as an alternative to the authority of the state. Instead, religious authority forms one of a number of normative orders that coexist as part of a broader legal sphere. In this wider context, the chapter contributes to our understanding of how non-state sources invoke the authority of the state, as well as how non-state sources of law are legitimized by state law enforcement agencies and the judiciary, influencing the interpretation and enforcement of state laws in court.

Fatwas issued by local religious leaders on issues of deviancy acknowledge the legal authority of the state and call on the state to implement its decision. In criminal cases of blasphemy, a local fatwa that declares a group to be “deviant” may be used as the primary evidence in the legal process. In criminal trials and court proceedings in Indonesia, various actors often refer to the fatwas of the Indonesian Ulama Council (Majelis Ulama Indonesia; MUI).

My motivations for undertaking this essay were partly biographical. I was raised in Canada and undertook my initial legal training there. I then went to the United Kingdom for postgraduate studies and now work in Southeast Asia. By way of larger background, my family has roots in East Africa and before that in India. Through all of this geographical diversity runs the influence of the English common law; lawyers in all these jurisdictions would immediately recognize a reference to rotten snail-tainted ginger beer, and why that helps to answer the question “Who is my neighbour?”, and also with the assertion that, in summertime, village cricket really is the delight of everyone. At the same time, these jurisdictions are very diverse. They are historically and culturally shaped by different forces and incorporate in their legal systems very different influences. Canada has a written criminal code, but this is different from the written penal code in India and Singapore, although those last two are so similar that debates about section 377A of the Penal Code in Singapore would immediately be comprehensible to an Indian lawyer. An Indian, Singaporean, Australian and Canadian lawyer may also share a reference to the case of Liversidge v. Anderson, though it is interpreted differently in these jurisdictions. If your “tribe” is the Kikuyu or the Kalenjin, for example, your customary or indigenous law will have a greater place in the contemporary law of your country (Kenya) than if your tribe is the Haida or Cree in Canada. Muslim personal law is officially recognized in India through the regular courts, and in Singapore and Kenya through the Syariah and Kadi courts respectively; it has a rather lesser role in Canada and the United Kingdom. The list could go on.

In considering the jurisdictions with which I have personal connections, therefore, I am struck by the paradox of familiarity and similarity, on the one hand, and of opacity and difference on the other. Students at my university in Singapore, for example, have no problem in considering and receiving precedents from the United Kingdom or Canada or India, but they would hardly think of Cambodia or Thailand or Indonesia: jurisdictions that are geographically so much closer. When they travel to other common law environments on exchange, they know that they share a language — literal, legal and metaphorical — with their new classmates.

By the late 1960s it was clear that, in addition to many other challenges, the newly independent nations of Southeast Asia faced ongoing complexities resulting from the mix of legal systems they had inherited from their pre-modern and colonial pasts. M.B. Hooker experienced the situation at first hand when, as a young lecturer in law at the then University of Singapore, he observed the laws of Singapore, Malaysia, and Indonesia operating in a range of contexts, including religious courts, at local and national levels. In 1975, several years after leaving Southeast Asia, he published a study of legal pluralism, which he defined as “the situation in which two or more laws interact”. The aim of the study was “to describe the systems of legal pluralism in the contemporary world which have resulted from the transfer of whole legal systems across cultural boundaries”, and he made it clear that what interested him was the action of law as an agent of social change.

Twenty-five years after his study on legal pluralism was published, Professor Hooker began an extended analysis of a diverse range of fatwas in modern Indonesia using materials that were very different from those used in his 1975 book. He was, however, still interested in the nature of pluralism, albeit pluralism within the framework of the same legal system — Islam in Indonesia — and expressed in the form of fatwas. He wrote, “It is important to stress that there is variation in principle and practice because multiplicity of principle and practice is the lifeblood of law and dogma”.

The point to make here is that Professor Hooker's research into legal pluralism began with analyses of differences among systems and later focussed on differences within the same system of laws (Islam). One of his primary interests remains the dialectic/dialogic relationship between the system and the society in which it is expressed. In the analysis of fatwas, he described in some detail the methods developed by a range of Indonesian religious scholars to apply Islamic law to problems confronting modern Indonesian Muslims. He argues that the fatwas are a means to knowing Indonesian Islam as it is understood and expressed at a particular time in its Indonesian context.

We owe much of our knowledge of legal diversity in Asia to the work of Barry Hooker, who appears early on to have appreciated its intrinsic interest and potentially global significance. His work in the field is, as the French say, incontournable; a nice combination of the unavoidable, the controlling and the greatly respected. These lines are offered in such a spirit of respect, but rather than attempting to emulate the master in richness of exposition, they take refuge in a larger and more abstract perspective, in attempting to situate Asian legal diversity in some broad currents of Asian thought, contrasted in some measure with the European thought which has contributed so greatly to contemporary concepts of states and state law in the world.

Classical European Forms of Logic

States and the law of states have developed in all cases as the result of the particular circumstances of each state, but there are common forms of thought which underlie, in some measure, all states. The most remarkable of these has been the dichotomy, first announced (apparently) by Plato and adopted in a massive manner subsequently by Western thinkers, legal and otherwise. Plato argued that in order to begin to understand the world, one should first divide it conceptually into two. He wrote that “it's not at all difficult to separate into two all of those things that come into being”, and that we should “divide all cases of knowledge in this way”. This initial diaeresis or divisio, moreover, should be followed by others, each yielding more detailed forms of taxonomic division until a point was reached which satisfied the intellectual and practical needs of those effecting the divisions or separations. Platonists today are not thick on the ground, but this simple and crude idea has been the most wildly successful of his proposals, over millennia. In civilian teaching it has been the foundation of the idea of a summa divisio, such as that between public and private law, or patrimonial and non-patrimonial rights, or contractual and extra-contractual liability.