Mark Cammack - Academia.edu (original) (raw)

Papers by Mark Cammack

Washington and Lee Law Review, 2007

One of the more notable features of Indonesian Islamic law is its recognition of the concept ofjo... more One of the more notable features of Indonesian Islamic law is its recognition of the concept ofjointly owned marital property. The Indonesian doctrine of oint marital property bears a striking similarity to the community property system in California. In both systems the marital estate consists of property acquired during the marriage through the efforts of either of the spouses. Both systems distinguish marital propertyfrom separate property and both define separate property as all property owned by either spouse prior to the marriage or acquired by gift or inheritance afterwards. Apart from their doctrinal similarity, Indonesian Islamic marital property and California community property are alike in another respect: Both are transplanted elements existing in foreign legal environments. Indonesian marital property is an indigenous Southeast Asian practice in an Islamic conceptual structure, while community property is a continental civil law institution in an Anglo-American common law system. In both cases, moreover, the conception of marriage that underlies the doctrine of joint marital property is out of harmony with the understanding of marriage reflected in the system's treatment of marriage generally. This Article compares the process of incorporation of joint marital property in Indonesia and California. The results of this comparison contradict the assumption that sacred legal systems are inherently less capable of change and adaptation than secular systems. Focusing first on California, it is shown that a fully egalitarian system of joint marital property did not emerge until the 1970s, more than 100 years after the civil law doctrine of community property was formally adopted in the state constitution in 1849. In Indonesia, by contrast, the indigenous customary concept of marital property encountered relatively little resistance from Islamic authorities. By analogizing household economic production to a commercial partnership,

Exclusionary Rules in Comparative Law, 2012

In the English common law, all evidence was admissible in court regardless of how it was gathered... more In the English common law, all evidence was admissible in court regardless of how it was gathered, perhaps with the exception of statements which were the product of torture or other cruel treatment. The United States, with its 1791 Bill of Rights, however, was the first country to recognize that evidence gathered in the violation of constitutional rights—such as the Fourth Amendment right to be free of unreasonable searches and seizures, or those conducted without a well-founded search warrant, and the Fifth Amendment privilege against self-incrimination—was inadmissible in court. This Chapter traces the evolution of U.S. constitutional exclusionary rules from the 1914 Weeks case and 1961 Mapp case, dealing with the Fourth Amendment and the 1967 Miranda decision dealing with the Fifth Amendment, up to its modern jurisprudence. The doctrines of “fruits of the poisonous tree”, referring to evidence (often physical) derived indirectly from constitutional violations, and its exceptions of “independent source” and “inevitable discovery”, along with an exception for “good faith” have been since adopted in many countries. The “fall” of the constitutional exclusionary rule, refers to recent doctrine, which is carving out more exceptions and is returning to the original common law position of presumed admissibility of evidence, and use of a “balancing” test which will only exclude evidence if the constitutional violations were intentional and egregious.

This chapter describes the historical evolution and current structure of Indonesia's Islamic lega... more This chapter describes the historical evolution and current structure of Indonesia's Islamic legal structure. The current system of Islamic courts in Indonesia is traceable to a late nineteenth century Dutch decree establishing a system of Islamic tribunals on the islands of Java and Madura. The decree created collegial courts in which a district-level religious official called the penghulu acted as chair and was assisted by member judges chosen from the local religious elite. The courts were authorized to decide matrimonial and inheritance disputes, but execution of the courts' decisions required an executory decree from the civil court. The system was expanded to south Kalimantan in the 1930s, but at the same time the jurisdiction over inheritance was transferred to the civil courts. At independence, the Islamic judiciary was placed under the authority of the Ministry of Religion, which used executive powers to expand the system to other parts of the country. It was not until 1989 with the passage of the Religious Judicature Act that the existence of the courts was guaranteed by statute. The 1989 Act also vested the courts with enforcement powers and mandated changes in the organization and staffing of the courts modeled after the parallel system of civil courts. The substantive jurisdiction of the courts has also been expanded to include inheritance cases as well as a so far little-used power to decide cases involving economic transactions based on Islamic law. In 2004, the administrative supervision of the Islamic judiciary was transferred from the Ministry of Religion to the Supreme Court. In 1999, the province of Aceh was granted special autonomy status that included the authority to enforce Islamic law in areas beyond the established jurisdictions of Shari‛a courts in the rest of the country. These developments add a new dimension to the institutional structures for the practice of Islamic law in the country. † † ‡ Research Leader of the Religion and Globalization cluster at the Asia Research Institute and Associate Professor of History at the National University of Singapore. † † In accordance with the policies of the Pacific Rim Law & Policy Journal, foreign words that have entered common English usage will not be italicized. Foreign words that are not in common usage will be italicized. Arabic words will not use diacritical marks such as macrons. However, apostrophes and reverse apostrophes will be employed to signal the letters hamza and ‛ayn, respectively. 1

Islamic Law and Society, 2008

Population Research and Policy Review, 2001

Indonesia's family planning program is regarded as a major success.Survey data from 1997 reveal t... more Indonesia's family planning program is regarded as a major success.Survey data from 1997 reveal that rates of contraceptive use vary dramatically amongIndonesia's 27 provinces, from a high of 67 percent of ever married women currently using contraceptives in the province of North Sulawesi, to a low of 19 percent current users in East Timor and28 percent in Aceh. This study uses both a quantitative analysis of the 1997 Indonesia Demographic and Health Survey, and a qualitative study carried out in July of 2000 to understand regionalvariation. The study identified a small number of factors that show a clear relation with levels of contraceptive use. Media exposure and education are the strongest and most consistent predictors of levels of contraceptive use, and appear to be the surest strategies for promoting family change. But the study also showed that the process of social change is subjectto culturally and historically specific local factors whose presence and importance is difficult to predict. Our study of regional variation in contraceptive use illustrates the range and complexityof obstacles faced by Indonesia's leaders in attempting to forge a single nation fromsuch a diverse and far-flung population. Although the creation of Indonesia in the space of just half a century is a monumental achievement, the project is clearly not yet complete.

Journal of Marriage and The Family, 2001

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