By David C. Buxbaum (auth.), David C. Buxbaum (eds.)
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Additional resources for Family Law and Customary Law in Asia: A Contemporary Legal Perspective
1 The potentiality of criminal prosecution on the other hand seems somewhat remote, and in any case would indeed be harsh. There is no necessary connection between polygyny, and modernization, nor with polygyny and a harmonious family situation. " 2 Whether polygyny conforms to contemporary notions of social justice is another question, but it would seem that gradual, realistic and less harsh methods of attempted elimination could be utilized with better results. 3 Burma for example has not prohibited polygamy, but has provided that the husband must have the consent of the first wife before taking an additional spouse.
But the attempts to put this theory into practice once again revealed the paradoxical dualistic quality of colonial society. Although it was repeatedly stressed that for the Indonesians law was to be a natural outgrowth of their own society, it was yet inconceivable that in a dualistic society where one group dominated another the concrete task of giving form and content to this customary law would be performed by the native people living in rural village communities. In the general framework of colonial relationships it was inevitable that the final word on the form and content of customary law would lie with van Vollenhoven and other jurists of similar views.
2 There is a third category known as customs adversus legem, or those that derogate from the statutory text. While there is much disagreement here and the courts are not likely to admit this usage in the droit civil, nevertheless recognition of such a custom may occur indirectly via interpreting the intention of the parties in a particular transaction as derogating from the droit supplltif. On the other hand if there is a mandatory provision in the statute, it may be interpreted in a manner not in conflict with custom.