ADAT AND ISLAM IN MALAYSIA: A STUDY IN LEGAL CONFLICT AND RESOLUTION

摘要

This dissertation is an attempt to utilize the principles of Islamic legal methodology (usul al figh) in combination with the legal and socio-anthropological approaches in the analysis of adat-Islam conflicts within the modern Malaysian legal system. Malay adat and Islamic law (Shar(')i'ah) had been in existence before the British intervention in Malaysian legal affairs. According to the principles of Islamic legal methodology, certain Malay customs could be accepted and allowed to be practiced by Muslims, as long as they were syncretized with its basic principles. During the early period of Islamic penetration into Malaysia, many elements of Islamic legal principles were adopted into the writings of the Malay legal digests. The presence of these elements justified the applicability of the principles of Islamic legal methodology in reforming certain adat practices of the Malaysian Muslims.;The coming of the British into Malaysia, with their common law system, distributed the existing legal atmosphere that had previously existed in Islam and Malay adat relations. This new form of foreign law, which was based on the British legal system, gave rise to a situational conflict between the existing systems of law in the country. This conflict is apparent in the realm of private international law and in interpersonal law. A number of cases including those involving the issues of conversion and harta sepencarian (jointly acquired property), are discussed in order to clarify the patterns of legal conflicts in this context.;The legal situation in Sabah is slightly different. In addition to Islamic law, adat law still play its tremendous role in settling legal disputes among the indigenous communities of the state. Attempts had been made by both the previous British administration and by the present state's government of Sabah, to distribute jurisdiction over both adat and Islamic legal systems in order to avoid conflicts with regard to the adjudication of certain legal cases. Nevertherless, elements of conflicts between adat and Islamic law continue to exist. Some of these conflicts pertain to the content of adat law and some to its structure. The last part of this dissertation provides a descriptive and theoretical analysis of the principles of Islamic legal methodology which may be applied in resolving adat-Islamic law conflicts.