Seminar | Criminalising and emancipatory trends in family law in Indonesia and other muslim majority countries

Organised by the Van Vollenhoven Institute for Law, Governance and Society (VVI) / Royal Netherlands Institute of Southeast Asian and Caribbean Studies (KITLV) / Leiden University Centre for the Study of Islam and Society (LUCIS).

Venue & dates
15 and 16 November 2018
KITLV room 138, Leiden

Subject matter
Looking at legal developments related to family law[1] in Indonesia and other Muslim majority countries, we see two simultaneous trends developing. On the one hand there is an increasing tendency on the part of many states to criminalise sexual behaviour considered in contravention of Islamic law, such as pre- and extramarital sex and LBGT-relations. This development seems a response to the ‘moral panic’ concerning the supposedly increasing debauchery of modern times and sexual behaviour of youth in particular. Technological developments such as the spread of Facebook, Instagram, Whatsapp and smartphones have reinforced the sense of a lack of control people experience over the behaviour of their children, other family members – and perhaps themselves. The call for state action to do something about this has led to new legislation regulating morals. While such legislation may be symbolic in appearance and patchy in its enforcement, its consequences may still be far-reaching.

At the same time state-sponsored forms of Islamic family law that promote emancipation of women and children have steadily continued to gain ground in many of these countries, not only at the level of legislation and judicial rulings but also in social practices. The most prominent examples are the equality of women in matters of divorce and inheritance, but in a country such as Indonesia we also see increasing recognition of the position of children born outside marriage.

An issue at the crossroads between criminalisation and emancipation concerns early marriage. With any marriage under the age of 18 defined as child marriage by international human rights law, states have to manoeuver between criminalisation of those involved in such relations and the protection against unwanted consequences – which is more difficult if they go underground. An extra complication is that in this process the agency of those involved gets out of sight easily, as particularly in Muslim societies teenagers will only be allowed to have sexual relations in the context of marriage. In that sense, raising the age of marriage may actually decrease their agency.

The role of international human rights law extends beyond the issue of early marriage. When it concerns criminalising behaviour, human rights law often opposes such legislation. This applies in particular to LGBT-issues. UN human rights commission reports address this issue, forcing states to justify their behaviour. By contrast, the efforts at promoting equality of women and men in Muslim family law are in line with CEDAW and draw upon such ideas. However, states are careful not to draw exclusively upon this framework, as this may further antagonise conservative religious forces opposing such trends.

 We have invited paper proposals that examine these trends and address the following questions:

• To what extent are these two trends to be seen in Indonesia and other Muslim majority countries? What forms do they take? What differences do we see?
• How can we explain these developments? To what extent are they local or domestic in nature and what is the role of transnational discourses?
• What is the role of international human rights law in these processes? How do discourses drawing upon this source of legitimation relate to discourses referring to Islam?

Format
A two-day seminar with paper presentations. We intend to publish a selection of papers in a special issue of a journal or an edited volume. It is not possible to submit paper proposals anymore.

Photo by Izmy Khumairoh.

[1] We interpret ‘family law’ broadly, as the normative frameworks regulating kinship and intimate relations between human beings.