Bijdragen tot de Taal-, Land- en Volkenkunde, Jun 28, 2023
The Bijdragen occasionally organizes a book debate in which we invite three scholars to review a ... more The Bijdragen occasionally organizes a book debate in which we invite three scholars to review a recently published book, followed by a response from its author. In this issue of the Bijdragen, that convention has, by necessity, been thwarted. Not long after the 2019 publication of his important work, Conflict, identity and state formation in East Timor, 2000-2017, James Scambary passed away suddenly. He was just 59. That it occurred at the height of the Covid-19 pandemic in Melbourne, Australia, a city that became known as the most 'locked-down in the world' , made James's passing all the more tragic. James was never able to fully promote the book as a contribution to either Timor-Leste studies, or, more generally, to understandings of violence and politics in the region. We have tried to address this unfinished business by inviting his fellow scholars, Professor Gerry van Klinken, Dr Hoko Horii, and Dr Antero da Silva, to critically comment on James's book. In the response, James's former supervisor, Gordon Peake,1 and close academic friend, Sara Niner, try to imagine his response. The result is part critical book review and part commemoration of James and his passionate commitment to undertaking critical work, to the people of East Timor, and to the tensions that can arise between these two allegiances. This discussion arrives at an urgent time, as we are all reflecting on the unequal praxis of knowledge-making across cultures. How do we work both ethically and critically? Who do we write for and to whom are we indebted? It is because of the exceptional nature of this book debate that we have given the authors, and ourselves, the freedom to refer to their friend as James. None of this excuses us, nor the authors in this debate, from reflecting critically on his work, as he would have wanted.
This paper examines the reasons and consequences of a lacking birth-registration in Indonesia, as... more This paper examines the reasons and consequences of a lacking birth-registration in Indonesia, as well as the mechanisms to ‘fix’ it. In order to avoid the legal and social consequences of the lack of registration, creative and ad-hoc solutions are crafted – not only by the individual families who face the problem, but also by their community, including local and state actors who are involved in the mechanisms and paperwork. These mechanisms exist also because of state’s reluctance to enforce regulation related to unregistered marriage and children born into unregistered marriage as these matters are religiously and culturally delicate. We argue that the state facilitates all types of unregistered marriages, which results in blurring legal parameters of marriage. This leads unregistered children to be living in a legal limbo: their legal status and attached rights remain unclear, not being fully ensured of their rights to public services, inheritance, and child maintenance.
In the recent international campaigns against child marriage, there is a puzzle of agency: while ... more In the recent international campaigns against child marriage, there is a puzzle of agency: while international human rights institutions celebrate when girls exercise their agency not to marry, they do not recognize their agency to marry. ‘Child marriage’, defined as “any formal marriage or informal union where one or both of the parties are under 18 years of age”, is considered always forced, assuming that children are not capable of consenting to marriages. In order to re-examine, reflect, and discuss this approach to agency, this dissertation offers empirical evidence of child marriage, based on findings from the author’s fieldwork in Indonesia. Why children marry and how this practice both informs, and is treated within, multiple competing normative frameworks in place? The dissertation starts from analysing child marriage discourse at the international level, moves to discuss the political contestation over child marriage at the national level (Indonesia), and then investigates...
In the recent international campaigns against child marriage, there is a puzzle of agency: while ... more In the recent international campaigns against child marriage, there is a puzzle of agency: while international human rights institutions celebrate when girls exercise their agency not to marry, they do not recognize their agency to marry. ‘Child marriage’, defined as “any formal marriage or informal union where one or both of the parties are under 18 years of age”, is considered always forced, assuming that children are not capable of consenting to marriages. In order to re-examine, reflect, and discuss this approach to agency, this dissertation offers empirical evidence of child marriage, based on findings from the author’s fieldwork in Indonesia. Why children marry and how this practice both informs, and is treated within, multiple competing normative frameworks in place? The dissertation starts from analysing child marriage discourse at the international level, moves to discuss the political contestation over child marriage at the national level (Indonesia), and then investigate...
By studying child marriage as a discursive practice, this article argues that the current interna... more By studying child marriage as a discursive practice, this article argues that the current international legal framework of child marriage is problematic. Transnational organisations dismiss what they consider to be the 'tradition' of 'the South', while their linear conceptualisation of development fails to recognise the possibility of adolescent agency existing within 'traditional' social networks. This overlooked blind spot is a problem we encounter more frequently with human rights: without overcoming the blind spot, the human rights framework risks becoming self-defeating and failing to achieve the endwhich is to protect agency of human beings. A reconceptualisation of the current black-and-white child marriage framework is needed, so that it becomes fully emancipatory and efficient in practice.
This article discusses challenges posed by the implementation of international human rights law t... more This article discusses challenges posed by the implementation of international human rights law through the case of child marriage in Indonesia. Supporting data consist mostly of court decisions and interviews with judges carried out at three separate Islamic courts in West Java. Results show that the Indonesian pluralistic legal system is structurally organized so as to accommodate human rights norms with religious concerns and customary practices, which therefore provides judges with significant leeway in arbitrating between different types of law, which conflict on the question of child marriage. Left at the discretion of judges, rulings on child marriage cases may result in religious or customary law being favoured over state and international law. Judges do so to ‘protect children’ from social stigma, which is associated with pregnancy and sexual intercourse out of wedlock.
Child marriage, defined by international organisations as the marriage of someone under the age o... more Child marriage, defined by international organisations as the marriage of someone under the age of 18, has come under increasing scrutiny in Indonesia in recent years. Several legislative changes have been initiated since 2014 to raise the legal marriageable age, responding to a growing public demand for government regulations to ban child marriage. These legislative initiatives have noble intents: to uphold human rights norms, to protect children and to empower women. However, they do not offer an effective solution to the prevalence of child marriage in Indonesia, and worse, they could aggravate the problem. Even if child marriage is banned by law, children would continue to be married outside of the legal system, as long as the motivation remains. Child marriages would go underground, rendering the married couple legally unprotected, and therefore even more vulnerable. Furthermore, besides the stereotypical cases of forced child marriage driven by poverty, there is much diversity in types of child marriage in Indonesia. By failing to take this diversity into account, the proposed legal reform, that is one-size-fits-all in nature, fails to address the broader underlying issues that spur child marriage in the first place.
This article provides empirical evidence on children’s agency and capacity in making the decision... more This article provides empirical evidence on children’s agency and capacity in making the decision to marry. Case studies from my fieldwork in Bali contrast the commonly represented image of child marriage as a forced marriage, by demonstrating that in many cases children themselves make the decision to marry. However, considering social power dynamics, is such a decision really the child’s? The analysis shows that the current international child marriage framework fails to walk the thin line between empowerment and protection of children. Policies instead should be designed to encourage their participation in decision making and stimulate their resilience in their life after marriage.
The Journal of Legal Pluralism and Unofficial Law, 2019
This article examines how the existence of multiple legal orders can impact the defense of human ... more This article examines how the existence of multiple legal orders can impact the defense of human rights, by discussing how state legal agents in Bali navigate state law through local concerns and adat (customary) law in cases dealing with teenage pregnancy outside of marriage. In such "emergencies" where the morality of the community is at stake, families, adat authorities and state agents collaborate to find a way to fit these emergency situations into the locally accepted normative system, resulting in what international institutions call "child marriage." In assessing the interaction between state law and customary law, this study offers a basis for discussing how legal pluralism should be addressed in the realization of human rights.
This article addresses the dilemmas and compromises in legal practice around the issue of child m... more This article addresses the dilemmas and compromises in legal practice around the issue of child marriage in Indonesia. Although the government set development goals that include ending child marriage and complying with human rights standard, it is facing considerable resistance. We researched the state legal system and law in practice to understand this resistance, finding that: (1) law-making in family law involves conflict between progressive and conservative ideas; (2) consequently there is friction within current family law and laws regarding human rights; (3) judges use their discretion to achieve compromises between state laws and local norms; and (4) state law is creatively interpreted and applied at village level. The resistance at all these levels, arising from the religious concerns of conservative Muslims in a rapidly modernizing Indonesian society, is a formidable obstacle for the government to achieve its development goals. Adolescent sexuality is at the heart of these ...
Resume. Plusieurs travaux de recherche ont demontre les consequences negatives du mariage des min... more Resume. Plusieurs travaux de recherche ont demontre les consequences negatives du mariage des mineurs sur les enfants. Ainsi, les conventions internationales, la convention sur l’elimination de toutes les formes de discrimination a l’egard des femmes (la CEDEF) et la Convention relative aux droits de l’enfant (la CIDE), interdisent le mariage des personnes de moins de 18 ans. Toutefois, dans certains pays musulmans comme l’Indonesie, meme s’ils ont deja ratifie la CEDEF et la CIDE, la pratique du mariage des mineurs demeure courante. Pourquoi des enfants continuent a se marier, et pourquoi le droit indonesien ne peut pas mettre a fin a ces pratiques ? Pour cela nous avons examine la legislation indonesienne ainsi que les decisions juridiques autorisant le mariage des mineurs. Nous avons aussi interroge plusieurs juges des tribunaux religieux a Java Ouest pour savoir comment ils arbitraient entre les differents droits (droit international, droit national, droit islamique et droit cou...
Violence against women is an issue that has persisted for centuries despite the various efforts t... more Violence against women is an issue that has persisted for centuries despite the various efforts to stop it. Women of all ages are prone to becoming the objects of violence, including sexual violence. Most of the violent acts occur in a family setting. UNICEF (2015) ranks the prevalence of child marriage in Indonesia as one of the highest in the East Asia and Pacific with 25% of married women aged 20-24 years having been married under the age of 18 (p. 5). In ASEAN context, Indonesia ranks second after Cambodia (p. 97). This book is a compilation of eleven selected articles from a seminar that discussed child marriage in Indonesia. The articles are organized in three categories so as to view child marriage from different perspectives, namely: (a) the experiences of child brides, (b) the existence and enforcement of the laws (including the unwritten socio-cultural and religious norms) related to underage marriage, and (c) the actors behind the practice of child marriage.
The current international approach to child marriage is the complete prohibition of marriage unde... more The current international approach to child marriage is the complete prohibition of marriage under the age of 18. Child marriage is considered a problem internationally, and those who practice it tend to be viewed as ‘traditional’, that is, insufficiently modern. This article aims to challenge this viewpoint, by discussing data that show that these young people use under-age marriage as a solution to navigate the modern world in which they live. As child marriage is rather a symptom of unplanned pregnancy outside of wedlock, the policies and programs should be redirected to address this root cause.
Bijdragen tot de Taal-, Land- en Volkenkunde, Jun 28, 2023
The Bijdragen occasionally organizes a book debate in which we invite three scholars to review a ... more The Bijdragen occasionally organizes a book debate in which we invite three scholars to review a recently published book, followed by a response from its author. In this issue of the Bijdragen, that convention has, by necessity, been thwarted. Not long after the 2019 publication of his important work, Conflict, identity and state formation in East Timor, 2000-2017, James Scambary passed away suddenly. He was just 59. That it occurred at the height of the Covid-19 pandemic in Melbourne, Australia, a city that became known as the most 'locked-down in the world' , made James's passing all the more tragic. James was never able to fully promote the book as a contribution to either Timor-Leste studies, or, more generally, to understandings of violence and politics in the region. We have tried to address this unfinished business by inviting his fellow scholars, Professor Gerry van Klinken, Dr Hoko Horii, and Dr Antero da Silva, to critically comment on James's book. In the response, James's former supervisor, Gordon Peake,1 and close academic friend, Sara Niner, try to imagine his response. The result is part critical book review and part commemoration of James and his passionate commitment to undertaking critical work, to the people of East Timor, and to the tensions that can arise between these two allegiances. This discussion arrives at an urgent time, as we are all reflecting on the unequal praxis of knowledge-making across cultures. How do we work both ethically and critically? Who do we write for and to whom are we indebted? It is because of the exceptional nature of this book debate that we have given the authors, and ourselves, the freedom to refer to their friend as James. None of this excuses us, nor the authors in this debate, from reflecting critically on his work, as he would have wanted.
This paper examines the reasons and consequences of a lacking birth-registration in Indonesia, as... more This paper examines the reasons and consequences of a lacking birth-registration in Indonesia, as well as the mechanisms to ‘fix’ it. In order to avoid the legal and social consequences of the lack of registration, creative and ad-hoc solutions are crafted – not only by the individual families who face the problem, but also by their community, including local and state actors who are involved in the mechanisms and paperwork. These mechanisms exist also because of state’s reluctance to enforce regulation related to unregistered marriage and children born into unregistered marriage as these matters are religiously and culturally delicate. We argue that the state facilitates all types of unregistered marriages, which results in blurring legal parameters of marriage. This leads unregistered children to be living in a legal limbo: their legal status and attached rights remain unclear, not being fully ensured of their rights to public services, inheritance, and child maintenance.
In the recent international campaigns against child marriage, there is a puzzle of agency: while ... more In the recent international campaigns against child marriage, there is a puzzle of agency: while international human rights institutions celebrate when girls exercise their agency not to marry, they do not recognize their agency to marry. ‘Child marriage’, defined as “any formal marriage or informal union where one or both of the parties are under 18 years of age”, is considered always forced, assuming that children are not capable of consenting to marriages. In order to re-examine, reflect, and discuss this approach to agency, this dissertation offers empirical evidence of child marriage, based on findings from the author’s fieldwork in Indonesia. Why children marry and how this practice both informs, and is treated within, multiple competing normative frameworks in place? The dissertation starts from analysing child marriage discourse at the international level, moves to discuss the political contestation over child marriage at the national level (Indonesia), and then investigates...
In the recent international campaigns against child marriage, there is a puzzle of agency: while ... more In the recent international campaigns against child marriage, there is a puzzle of agency: while international human rights institutions celebrate when girls exercise their agency not to marry, they do not recognize their agency to marry. ‘Child marriage’, defined as “any formal marriage or informal union where one or both of the parties are under 18 years of age”, is considered always forced, assuming that children are not capable of consenting to marriages. In order to re-examine, reflect, and discuss this approach to agency, this dissertation offers empirical evidence of child marriage, based on findings from the author’s fieldwork in Indonesia. Why children marry and how this practice both informs, and is treated within, multiple competing normative frameworks in place? The dissertation starts from analysing child marriage discourse at the international level, moves to discuss the political contestation over child marriage at the national level (Indonesia), and then investigate...
By studying child marriage as a discursive practice, this article argues that the current interna... more By studying child marriage as a discursive practice, this article argues that the current international legal framework of child marriage is problematic. Transnational organisations dismiss what they consider to be the 'tradition' of 'the South', while their linear conceptualisation of development fails to recognise the possibility of adolescent agency existing within 'traditional' social networks. This overlooked blind spot is a problem we encounter more frequently with human rights: without overcoming the blind spot, the human rights framework risks becoming self-defeating and failing to achieve the endwhich is to protect agency of human beings. A reconceptualisation of the current black-and-white child marriage framework is needed, so that it becomes fully emancipatory and efficient in practice.
This article discusses challenges posed by the implementation of international human rights law t... more This article discusses challenges posed by the implementation of international human rights law through the case of child marriage in Indonesia. Supporting data consist mostly of court decisions and interviews with judges carried out at three separate Islamic courts in West Java. Results show that the Indonesian pluralistic legal system is structurally organized so as to accommodate human rights norms with religious concerns and customary practices, which therefore provides judges with significant leeway in arbitrating between different types of law, which conflict on the question of child marriage. Left at the discretion of judges, rulings on child marriage cases may result in religious or customary law being favoured over state and international law. Judges do so to ‘protect children’ from social stigma, which is associated with pregnancy and sexual intercourse out of wedlock.
Child marriage, defined by international organisations as the marriage of someone under the age o... more Child marriage, defined by international organisations as the marriage of someone under the age of 18, has come under increasing scrutiny in Indonesia in recent years. Several legislative changes have been initiated since 2014 to raise the legal marriageable age, responding to a growing public demand for government regulations to ban child marriage. These legislative initiatives have noble intents: to uphold human rights norms, to protect children and to empower women. However, they do not offer an effective solution to the prevalence of child marriage in Indonesia, and worse, they could aggravate the problem. Even if child marriage is banned by law, children would continue to be married outside of the legal system, as long as the motivation remains. Child marriages would go underground, rendering the married couple legally unprotected, and therefore even more vulnerable. Furthermore, besides the stereotypical cases of forced child marriage driven by poverty, there is much diversity in types of child marriage in Indonesia. By failing to take this diversity into account, the proposed legal reform, that is one-size-fits-all in nature, fails to address the broader underlying issues that spur child marriage in the first place.
This article provides empirical evidence on children’s agency and capacity in making the decision... more This article provides empirical evidence on children’s agency and capacity in making the decision to marry. Case studies from my fieldwork in Bali contrast the commonly represented image of child marriage as a forced marriage, by demonstrating that in many cases children themselves make the decision to marry. However, considering social power dynamics, is such a decision really the child’s? The analysis shows that the current international child marriage framework fails to walk the thin line between empowerment and protection of children. Policies instead should be designed to encourage their participation in decision making and stimulate their resilience in their life after marriage.
The Journal of Legal Pluralism and Unofficial Law, 2019
This article examines how the existence of multiple legal orders can impact the defense of human ... more This article examines how the existence of multiple legal orders can impact the defense of human rights, by discussing how state legal agents in Bali navigate state law through local concerns and adat (customary) law in cases dealing with teenage pregnancy outside of marriage. In such "emergencies" where the morality of the community is at stake, families, adat authorities and state agents collaborate to find a way to fit these emergency situations into the locally accepted normative system, resulting in what international institutions call "child marriage." In assessing the interaction between state law and customary law, this study offers a basis for discussing how legal pluralism should be addressed in the realization of human rights.
This article addresses the dilemmas and compromises in legal practice around the issue of child m... more This article addresses the dilemmas and compromises in legal practice around the issue of child marriage in Indonesia. Although the government set development goals that include ending child marriage and complying with human rights standard, it is facing considerable resistance. We researched the state legal system and law in practice to understand this resistance, finding that: (1) law-making in family law involves conflict between progressive and conservative ideas; (2) consequently there is friction within current family law and laws regarding human rights; (3) judges use their discretion to achieve compromises between state laws and local norms; and (4) state law is creatively interpreted and applied at village level. The resistance at all these levels, arising from the religious concerns of conservative Muslims in a rapidly modernizing Indonesian society, is a formidable obstacle for the government to achieve its development goals. Adolescent sexuality is at the heart of these ...
Resume. Plusieurs travaux de recherche ont demontre les consequences negatives du mariage des min... more Resume. Plusieurs travaux de recherche ont demontre les consequences negatives du mariage des mineurs sur les enfants. Ainsi, les conventions internationales, la convention sur l’elimination de toutes les formes de discrimination a l’egard des femmes (la CEDEF) et la Convention relative aux droits de l’enfant (la CIDE), interdisent le mariage des personnes de moins de 18 ans. Toutefois, dans certains pays musulmans comme l’Indonesie, meme s’ils ont deja ratifie la CEDEF et la CIDE, la pratique du mariage des mineurs demeure courante. Pourquoi des enfants continuent a se marier, et pourquoi le droit indonesien ne peut pas mettre a fin a ces pratiques ? Pour cela nous avons examine la legislation indonesienne ainsi que les decisions juridiques autorisant le mariage des mineurs. Nous avons aussi interroge plusieurs juges des tribunaux religieux a Java Ouest pour savoir comment ils arbitraient entre les differents droits (droit international, droit national, droit islamique et droit cou...
Violence against women is an issue that has persisted for centuries despite the various efforts t... more Violence against women is an issue that has persisted for centuries despite the various efforts to stop it. Women of all ages are prone to becoming the objects of violence, including sexual violence. Most of the violent acts occur in a family setting. UNICEF (2015) ranks the prevalence of child marriage in Indonesia as one of the highest in the East Asia and Pacific with 25% of married women aged 20-24 years having been married under the age of 18 (p. 5). In ASEAN context, Indonesia ranks second after Cambodia (p. 97). This book is a compilation of eleven selected articles from a seminar that discussed child marriage in Indonesia. The articles are organized in three categories so as to view child marriage from different perspectives, namely: (a) the experiences of child brides, (b) the existence and enforcement of the laws (including the unwritten socio-cultural and religious norms) related to underage marriage, and (c) the actors behind the practice of child marriage.
The current international approach to child marriage is the complete prohibition of marriage unde... more The current international approach to child marriage is the complete prohibition of marriage under the age of 18. Child marriage is considered a problem internationally, and those who practice it tend to be viewed as ‘traditional’, that is, insufficiently modern. This article aims to challenge this viewpoint, by discussing data that show that these young people use under-age marriage as a solution to navigate the modern world in which they live. As child marriage is rather a symptom of unplanned pregnancy outside of wedlock, the policies and programs should be redirected to address this root cause.
In the recent international campaigns against child marriage, there is a puzzle of agency: while ... more In the recent international campaigns against child marriage, there is a puzzle of agency: while international human rights institutions celebrate when girls exercise their agency not to marry, they do not recognize their agency to marry. ‘Child marriage’, defined as “any formal marriage or informal union where one or both of the parties are under 18 years of age”, is considered always forced, assuming that children are not capable of consenting to marriages. In order to re-examine, reflect, and discuss this approach to agency, this dissertation offers empirical evidence of child marriage, based on findings from the author’s fieldwork in Indonesia. Why children marry and how this practice both informs, and is treated within, multiple competing normative frameworks in place? The dissertation starts from analysing child marriage discourse at the international level, moves to discuss the political contestation over child marriage at the national level (Indonesia), and then investigates child marriage as a social practice on the Indonesian island of Bali.This is a socio-legal study of international human rights, which contributes to the scholarly field of human rights and children’s rights by using ideas from the other disciplines in social science.
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