Legal Reasoning for Legitimation of Child Marriage in West Java: Accommodation of Local Norms at Islamic Courts and the Paradox of Child Protection

Abstract

Abstract 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.