Debunking the Chinese unitary state via legal pluralism: Historical, indigenous and customary rights in China (1949–present)

2022 ◽  
Vol 151 ◽  
pp. 105752
Author(s):  
Peter Ho
Keyword(s):  
Legal Pluralism ◽  
Unitary State ◽  
Customary Rights

scholarly journals The Recognition of Customary Rights by Indonesian Constitutional Court

2021 ◽  
Vol 10 (3) ◽  
pp. 308
Author(s):  
. Rudy ◽  
Ryzal Perdana ◽  
Rudi Wijaya
Keyword(s):  
Legal Pluralism ◽  
Customary Law ◽  
Institutional Framework ◽  
Constitutional Court ◽  
Framework Analysis ◽  
Pluralistic Society ◽  
Sociological Approach ◽  
National People ◽  
Customary Rights

Formal law and customary rights never-ending contest have been a challenge for Indonesia in its effort to construct a modern nation. In this kind of battle, there are two conflicting values, the certainty of law versus harmonious value within society. However, the idea of constitutionalism can incorporate customary law as part of its fabric. Within the array of positivism and legal pluralism, the Indonesian Constitutional Court is trying to take leadership in the role of customary rights recognition. One of the legal standings that can put a petition to the constitutional court is a representative of the adat community as long as it still lives according to the values Indonesian State as required by legislation. The provision requires the existence of customary communities stipulated in a specific law. However, the required legislation is not stipulated yet in Indonesia, creating the institutional difficulty for The Constitutional Court upon accepting the customary rights case from specific adat communities. Given the limitation, this paper turns attention to how the Indonesian Constitutional Court deals with the recognition of customary rights as outlined in the Constitution. This study will attempt at answering this question by integrating the reading of Indonesia Constitutional Court judgments, the institutional framework analysis with a sociological approach through Indonesian Constitutional Court judges’ interviews. The study reveals one possible picture of how customary law and constitutionalism can co-exist in the same vision in Indonesia's pluralistic society.   This co-existence is not without risk of tension, but with the possibility of success under the name of constitutionalism order to protect, rather than neglect, the national people living on the plural law.   Received: 16 January 2021 / Accepted: 6 April 2021 / Published: 10 May 2021

scholarly journals Government Policy in the Natural Resource Management of Local Community

2016 ◽  
Vol 1 (1) ◽  
pp. 122
Author(s):  
Revency Vania Rugebregt ◽  
Abrar Saleng ◽  
Farida Patittingi
Keyword(s):  
Resource Management ◽  
Natural Resources ◽  
Natural Resource Management ◽  
Indigenous Peoples ◽  
Natural Resource ◽  
Local Community ◽  
Legal Pluralism ◽  
Environmental Damage ◽  
Customary Rights ◽  
The Government

Natural resource management is an important thing that should be done by the community for survival. Consciously of many ways in the management of natural resources has resulted in environmental damage, coupled with government policies that give permission without good supervision to entrepreneurs or private individuals in natural resource management adds a long list of environmental damage. In the last three decades, governments tend to ignore the phenomenon of legal pluralism in the legal development policy, preparation of legal instruments, as well as the implementation of the law through political neglect of the fact legal pluralism. So the product of legislation, especially those that set natural resource management, normatively ignore and displace the rights of indigenous peoples and local over control, management, and utilization of natural resources. Moreover, with deprivation of the rights of indigenous peoples’ customary rights and the implementation of development without taking into consideration the pattern of spatial planning, more and enlarge the conflict between the government and society.

scholarly journals Government Policy in the Natural Resource Management of Local Community

2016 ◽  
Vol 1 (1) ◽  
pp. 122
Author(s):  
Revency Vania Rugebregt ◽  
Abrar Saleng ◽  
Farida Patittingi
Keyword(s):  
Resource Management ◽  
Natural Resources ◽  
Natural Resource Management ◽  
Indigenous Peoples ◽  
Natural Resource ◽  
Local Community ◽  
Legal Pluralism ◽  
Environmental Damage ◽  
Customary Rights ◽  
The Government

Natural resource management is an important thing that should be done by the community for survival. Consciously of many ways in the management of natural resources has resulted in environmental damage, coupled with government policies that give permission without good supervision to entrepreneurs or private individuals in natural resource management adds a long list of environmental damage. In the last three decades, governments tend to ignore the phenomenon of legal pluralism in the legal development policy, preparation of legal instruments, as well as the implementation of the law through political neglect of the fact legal pluralism. So the product of legislation, especially those that set natural resource management, normatively ignore and displace the rights of indigenous peoples and local over control, management, and utilization of natural resources. Moreover, with deprivation of the rights of indigenous peoples’ customary rights and the implementation of development without taking into consideration the pattern of spatial planning, more and enlarge the conflict between the government and society.

scholarly journals A RECOGNITION MODEL OF NATIONAL LEGAL PLURALISM IN A UNITARY STATE THROUGH THE PRISMATIC THEORY APPROACH

2021 ◽  
Vol 1 (2) ◽  
pp. 107-115
Author(s):  
Jati Nugroho
Keyword(s):  
Legal Pluralism ◽  
Customary Law ◽  
Theory Approach ◽  
Pluralistic Society ◽  
Recognition Model ◽  
Legal Development ◽  
Unitary State ◽  
National Ideology ◽  
Customary Laws ◽  
The Republic

The choice of a unitary state based on Article 1 Section 1 of the 1945 Constitution theoretically always relates to the factor of equality within the state. However, the choice of the Republic of Indonesia as a unitary state is based on the consideration of the pluralism aspects in terms of culture, language, customs, and ethnicity, which brings consequences for the recognition of applicable legal pluralism (Article 18B Section 2 of the 1945 Constitution). This study examines legal pluralism in a unitary state based on the prismatic theory approach to find out its legal recognition model. This study aims at finding an ideal legal pluralism recognition model in a unitary state which has tended to be centralized, such as the implementation of the Basic Agrarian Law that ignores the customary laws. The results of the legal prismatic theory approach are expected to able to fulfill justice in a pluralistic society. In this study, the researcher employed a normative juridical method through a political-law approach to various laws and regulations. Furthermore, the researcher also used a qualitative analysis. The results of this study showed as follows. (1) Politics of law as a guideline for legal development is inconsistent with Pancasila and legal systems that accommodate legal pluralism. As a result, customary law must comply with national law, which indicates the recognition of weak legal pluralism. (2) The recognition model of national legal pluralism through the prismatic theory approach by considering the plurality of the prevailing legal order may create certainty and benefit on the value of justice in society according to national ideology and Pancasila as the soul of the nation. The recommendations of this study are as follows. (1) Legal development should use the recognition model of national legal pluralism through the prismatic theory approach so that certainty and benefit on the value of justice in society can be established according to national ideology and Pancasila as the soul of the nation. (2) The prismatic theory approach can be an alternative solution to the recognition model of legal pluralism in realizing Indonesian national law based on Pancasila as the ideology and spirit of the nation.

scholarly journals Pluralismo Jurídico: o Palimpsesto Político e Jurídico em Moçambique e Direito de Pasárgada no Brasil

2013 ◽  
Vol 8 (2) ◽  
Author(s):  
Custódio Vique Jossia Júnior
Keyword(s):  
Indigenous Peoples ◽  
Rio De Janeiro ◽  
Historical Context ◽  
Legal Pluralism ◽  
Legal Systems ◽  
Customary Rights ◽  
The Subject ◽  
The One ◽  
Parallel Construction ◽  
The City

Sumário: Introdução. 1. Do Monismo Jurídico ao Pluralismo Jurídico: Crise e Emergência do Pensamento Jurídico Moderno. 1.1. Monismos Jurídicos. 1.2. Pluralismo: conceito e origem. 2. Pluralismo Jurídico em Moçambique. 2.1. O Pluralismo Jurídico Moçambicano: o palimpsesto de políticas e culturas jurídicas. 2.1.1. O Estado Colonial. 2.1.2. Monismos Estadualista no período pós Independência: Estado, o único criador do direito. 2.2. Tratamentos constitucionais do pluralismo jurídico em Moçambique. 2.3. Estudos de caso. Justiças cruzadas no bairro Jorge Dimitrov. 3. Pluralismo Jurídico no Brasil. 3.1. Pluralismo jurídico e direito alternativo no Brasil. 3.2. Direito de Pasárgada. 3.3. Do direito de pasárgada à manifestação legal do pluralismo no Brasil: o exemplo dos juizados especiais civil. Considerações Finais. Referências. Resumo: A proposta de trabalho é fazer uma reflexão paralela a respeito da construção do pluralismo jurídico em Moçambique e no Brasil, com ênfase na teoria do estudo feito por Boaventura de Sousa Santos (o palimpsesto político, jurídico e direito de pasárgada). A ideia de pluralismo jurídico é decorrente da existência de dois ou mais sistemas jurídicos, dotados de eficácia, concomitantemente em um mesmo ambiente espaço-temporal. Em Moçambique estudos sobre a matéria reconheceram a presença de direito fora do Estado, onde era fácil identificar a presença de diferentes ordens jurídicas: de um lado, o direito europeu; do outro, os direitos costumeiros dos povos nativos. Já no contexto histórico do surgimento de pluralismo jurídico no Brasil, este surge com o Direito de Pasárgada na década de 1930 na cidade do Rio de Janeiro. Palavras-chave: Pluralismo Jurídico; Monismo; Palimpsesto; Pasárgada. Abstract: The work proposal is to reflect about the parallel construction of legal pluralism in Mozambique and in Brazil, with emphasis on the theory of the study made by Boaventura de Sousa Santos (the political and legal Palimpsest and the Pasárgada law). The idea of legal pluralism follows the existence of two or more legal systems, endowed with effectiveness, concurrently in the same space-time environment. In Mozambique studies on the subject recognized the presence of law outside the state where it was easy to identify the presence of different legal systems: on the one hand, European law, and on the other, customary rights of indigenous peoples. In the historical context of the emergence of legal pluralism in Brazil, this arises with the Law of Pasárgada in 1930 in the city of Rio de Janeiro. Keywords: Legal Pluralism, Monism; Palimpsest; Pasárgada.

scholarly journals PENGAKUAN DAN PERLINDUNGAN HUKUM TERHADAP MASYARAKAT HUKUM ADAT (DALAM PERSPEKTIF NEGARA HUKUM)

GANEC SWARA ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 439
Author(s):  
NI LUH ARININGSIH SARI
Keyword(s):  
Social Life ◽  
Indigenous Community ◽  
The State ◽  
Customary Law ◽  
Unitary State ◽  
Indigenous Groups ◽  
Customary Rights ◽  
The Republic ◽  
The Government ◽  
Laws And Regulations

The State of Indonesia as an archipelago with thousands of ethnic groups with a variety of different cultural customs in indigenous groups and local wisdom makes the State of Indonesia famous as a country rich in ethnicisity. The existence of indigenous community in various laws and regulations including the Constitution recognizes the existence of indigenous community and even the constitution mandates separate regulations in the form of laws to protect the existence of them and their customary rights. However, in practice in social life, their existence has not yet received serious protection from the government. This can be seen from the fact that not all regional heads inventoried and made local regulations related to indigenous community and local wisdom in their area and the rights of indigenous community to their customary territories are often disturbed by the rights granted by the laws and regulations made by the State. Whereas the state's recognition of the existence of customary law communities has been regulated in various national laws and regulations even in the Unitary State of the Republic of Indonesia, namely in the 1945 Constitution Article 18B paragraph (2) containing that the State recognizes and respects community units customary law and traditional rights as long as they are still alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia as stipulated in the law.

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