scholarly journals The Paradigm of Pluralism In Indonesia: Communal VS Legal State

2021 ◽  
Vol 15 ◽  
pp. 259-265
Author(s):  
Suci Flambonita ◽  
Vera Novianti ◽  
Artha Febriansyah ◽  
Wahyu Ernaningsih
Keyword(s):  
Natural Resources ◽  
The State ◽  
Customary Law ◽  
Cultural Identities ◽  
Legal Institutions ◽  
State Law ◽  
Value System ◽  
Sociological Approach ◽  
Indigenous Land ◽  
Strong Relationships

Indonesia with all of its diversities in which law and culture live side by side and become part of state law regularity. Centralistic view contends that the only institution which plays role in creating social regularity is the country through the law formed and determined by the country. In its reality, there are many ‘other forces’ that do not come from the state such as customary law, religion law, habits, trade agreement across country and so on. Those forces also have the ability to regulate the community actions bound in it even sometimes the member or the community in the society prefers to obey the rules formed by their group compared to the state law regulations. The research method used was sociological approach with moral, ethic, and religious approach. Traditional communities are groups of individuals who live from generation to generation in a certain geographical territory and are bind by cultural identities, strong relationships with their indigenous land, regions, and natural resources. Their value system determines their economic, political, and legal institutions. Indigenous peoples are groups of individuals who live from generation to generation in a certain geographical territory and are bind by cultural identities, strong relationships with their indigenous land, regions, and natural resources. Their value system determines their economic, political, and legal institutions arranged by customary institutions that have the authority to govern.

(Post)Colonial Culture and the South African Legal System: Understanding the Relationship between Living Customary Law and State Law

2007 ◽  
Vol 28 (2) ◽  
Author(s):  
Sindiso Mnisi
Keyword(s):  
South African ◽  
Paradigm Shift ◽  
Customary Law ◽  
State Law ◽  
The South ◽  
Value System ◽  
Post Colonial ◽  
Colonial Culture ◽  
Law Of Succession ◽  
The Relationship

AbstractThis paper traces the relationship between state law and indigenous systems in South Africa from its incipience, and argues that living customary law has been systematically ignored or inaccurately applied. In it, I advocate a paradigm shift as being fundamental to developing the theories, methods and standards adopted in consideration of customary law. I use the law of succession as a vehicle for displaying the clash of state and customary law and, herewith, expound the process by which this tension came about. In conclusion, I argue that a paradigm shift allowing for customary law to be understood within its own functioning and value system, rather than in a manner imposing western notions of society, culture and progress is necessary. This will enable the reunion of the South African legal order and reincorporation of customary communities into the national project.

Laws in Conflict: Legacies of War, Gender, and Legal Pluralism in Chechnya

2019 ◽  
Vol 71 (04) ◽  
pp. 667-709 ◽  
Author(s):  
Egor Lazarev
Keyword(s):  
Gender Gap ◽  
Legal Pluralism ◽  
State Building ◽  
Customary Law ◽  
Legal Mobilization ◽  
Legal Institutions ◽  
State Law ◽  
Gender Hierarchies ◽  
And Behavior

AbstractHow do legacies of conflict affect choices between state and nonstate legal institutions? This article studies this question in Chechnya, where state law coexists with Sharia and customary law. The author focuses on the effect of conflict-induced disruption of gender hierarchies because the dominant interpretations of religious and customary norms are discriminatory against women. The author finds that women in Chechnya are more likely than men to rely on state law and that this gender gap in legal preferences and behavior is especially large in more-victimized communities. The author infers from this finding that the conflict created the conditions for women in Chechnya to pursue their interests through state law—albeit not without resistance. Women’s legal mobilization has generated a backlash from the Chechen government, which has attempted to reinstate a patriarchal order. The author concludes that conflict may induce legal mobilization among the weak and that gender may become a central cleavage during state-building processes in postconflict environments.

scholarly journals Legal Development of Coastal Marine Management Based on the Idea of Pancasila

2018 ◽  
Vol 4 (1) ◽  
pp. 113
Author(s):  
Jantje Tjiptabudy
Keyword(s):  
Natural Resources ◽  
Indigenous Peoples ◽  
The State ◽  
Customary Law ◽  
Marine Management ◽  
Positive Law ◽  
Coastal Marine ◽  
The Republic ◽  
The Government ◽  
Marine Areas

In relation to the positive law, the management of marine and coastal natural resources, there is also the rule of customary law. Customary law that still lives and develops in indigenous peoples also regulates the management system and utilization of natural resources in coastal and marine areas. Recognition of the rights of indigenous peoples is constitutionally contained in the 1945 Constitution of the State of the Republic of Indonesia where the state recognizes the existence of the Customary Law Community. In Maluku, marine potency management in general is still done traditionally known as marine customary rights that have been going on for generations but not yet fully recognized either by the government or entrepreneurs who are actually important partners in the development process.

scholarly journals Kepastian Hukum mengenai Penjamin Simpanan bagi Nasabah pada Lembaga Perkreditan Desa di Bali

2020 ◽  
Vol 9 (4) ◽  
pp. 572
Author(s):  
Dewa Putu Adnyana ◽  
I Ketut Sudantra
Keyword(s):  
Legal Protection ◽  
The State ◽  
Customary Law ◽  
State Law ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Law System ◽  
Legal Rules

The regulation of legal protection for customers who have savings funds in village financial institutions (LPD) is unclear. This causes no legal certainty for customers if the LPD experiences financial problems. The existence of LPDs in Bali is regulated in two types of legal rules, namely state law and customary law (legal pluralism). Analyzing the legal certainty aspects of deposit guarantor in statutory regulations and customary law is the aim of this research. This study uses a normative legal research methodology. This study uses two types of approaches namely, the statute and the conceptual approaches. The legal materials chosen as the basic analysis are primary and secondary legal materials. The conclusion of this study shows that the role of state law is more dominant than customary law. The above conclusion is shown by the fact of the research that most of the matters related to the technical operations of the LPD are regulated by the state law, in this case, is regional regulation about LPD. Based on the results of the study on the norms of local regulations on LPD and the nine awig –awig as a form of customary law from representatives of the nine regencies and city in Bali, there is no regulation on deposit guarantor institutions for LPD customers in Bali to provide legal protection. So that, regulating LPDs in Bali with two legal systems, namely the state law and the customary law system, does not guarantee legal certainty for the safety of customer's deposits. Pengaturan perlindungan hukum bagi nasabah yang mempunyai dana simpanan  di Lembaga Perkreditan Desa (LPD) saat ini tidak jelas. Hal ini menyebabkan tidak ada kepastian hukum bagi nasabah apabila LPD mengalami masalah keuangan. Keberadaan LPD di Bali diatur dalam dua jenis aturan hukum yaitu hukum negara dan hukum adat  (pluralisme hukum). Mengkaji aspek kepastian hukum penjamin simpanan  dalam setiap norma dalam peraturan perundang-undangan serta dalam hukum adat merupakan tujuan penelitian ini. Penelitian ini menggunakan metode penelitian hukum doktrinal (normatif). Penelitian ini menggunakan dua jenis pendekatan yaitu pendekatan peraturan perundang-undangan (statute approach), dan pendekatan konsep (conceptual approach). Adapun bahan hukum yang dipilih sebagai dasar analisis adalah bahan hukum primer dan bahan hukum sekunder. Kemudian kesimpulan dari penelitian ini menyebutkan bahwa dua sistem hukum dalam pengaturan LPD di Bali menunjukkan peran hukum negara lebih dominan daripada hukum adat.  Kesimpulan ini ditunjukkan oleh fakta penelitian yang ditemukan bahwa sebagian besar hal yang berkaitan dengan teknis operasional LPD yang merupakan satu-satunya organisasi keuangan milik Desa Adat di Bali diatur oleh hukum negara dalam hal ini diatur dalam peraturan daerah tentang LPD. Kemudian, berdasarkan hasil kajian terhadap norma peraturan daerah tentang LPD dan terhadap sembilan awig–awig sebagai bentuk hukum adat dari perwakilan Kabupaten dan Kota di Bali, tidak ada ditemukan pengaturan tentang lembaga penjamin simpanan bagi nasabah LPD di Bali untuk memberikan perlindungan hukum. Dengan demikian pengaturan LPD di Bali dengan dua sistem hukum yaitu hukum negara dan sistem hukum adat ternyata tidak menjamin kepastian hukum bagi keamanan dana simpanan para nasabah. 

scholarly journals Interaksi Antara Negara Dan Desa Adat Dalam Konstruksi Negara Kesatuan Republik Indonesia

SASI ◽  
2018 ◽  
Vol 24 (1) ◽  
pp. 59
Author(s):  
Andress Deny Bakarbessy
Keyword(s):  
The State ◽  
Customary Law ◽  
State Law ◽  
Unitary State ◽  
The Right

Indonesia is a unitary state that determines all regions of the country without exception constituting a unity of administrative and legal territory. However, in the territory of Indonesia there are also regions and unity of customary law communities, in this case the traditional village which has special characteristics that are special because it has existed before the formation of the State and has the right of origin in the administration of its government, and is recognized and respected by the State, so that the interaction between the State and customary villages allows conflicts between State law and customary law and traditions in the administration of government. For this reason, an ideal interaction between the State and the traditional village is needed which can create harmony and balance between the Country and the traditional village.

Sharī‘a and State Law

2014 ◽  
Vol 3 (2) ◽  
pp. 124-138
Author(s):  
Muhammad Zubair Abbasi
Keyword(s):  
Legal History ◽  
Historical Perspective ◽  
The State ◽  
Customary Law ◽  
State Law ◽  
Main Argument ◽  
Historical Evidence ◽  
The West ◽  
Colonial India ◽  
Islamic Legal History

The growing numbers of Muslims in the West have ignited a debate about the compatibility of Sharī‘a with state law. The present article explores the issue from a historical perspective by providing a brief survey of Islamic legal history. It specifically focuses on the interaction of Sharī‘a with the English legal system in colonial India. The main argument of the article is that during its long history, Sharī‘a co-existed with the ruler’s law (siyāsa) and customary law (‘urf). It was formally incorporated into the structure of the state with the active participation of Muslim legal commentators, judges, lawyers, politicians, and the ‘ulamā’ in colonial India. The incorporation of Sharī‘a into the state law was facilitated through the transplantation of legislative and hierarchical judicial institutions, which provided venues for a legal discourse among various stakeholders. Historical evidence suggests the feasibility of incorporating Sharī‘a into state law in Western democratic countries.

scholarly journals MEMBACA PERKAWINAN MASYARAKAT ISLAM SASAK DARI PERSPEKTIF INTERLEGALITAS HUKUM

2018 ◽  
Vol 10 (2) ◽  
pp. 115
Author(s):  
Murdan Murdan
Keyword(s):  
Local Community ◽  
Islamic Law ◽  
The State ◽  
Legal Order ◽  
Customary Law ◽  
State Law ◽  
Legal Tradition ◽  
Social Contracts ◽  
Religious Law ◽  
Tribal Societies

This paper will discuss the side of the interlegality and interlaw among customary law, religious law and state law in tribal societies in Indonesia, which is focused on the marriage of Sasak people. As an Indonesian local community, the Sasak community has their own local laws in undergoing interactions and social contracts between each other, especially in matters of marriage. Along with the embrace of Islam by the Sasak community, the Islamic law also contributes in decorate every process of the marriage. In addition to the existence of customary law and Islamic law that adorn the marriage of the Sasak community, there is also a modern legal tradition, namely state law. As part of the Indonesian society, the Sasak people cannot escape the great influx of modern legal tradition or national law positivism, which is directly echoed by the state. Departing from this illustration, the discussion in this paper includes: the interlegality between Sasak customary law and religious law (Islamic law); the interlegality between Sasak customary law and state law; and the last is the interlegality among Sasak customary law (local legal order), religious law (Islamic law/Islamic legal order), and state law (state legal order).Tulisan ini akan membahas sisiinterlegalistikantara hukum adat, hukum agama dan hukum negara pada masyarakat kesukuan di Indonesia, yang difokuskan pada perkawinan masyarakat suku Sasak. Sebagai masyarakat lokal Indonesia, masyarakat Sasak memiliki hukum lokal sendiri dalam menjalani intraksi dan kontrak sosial antara satu sama lain, khususnya dalam persoalan perkawinan. Seiring dengan dipeluknya agama Islam oleh masyarakat Sasak, maka hukum Islam pun memberi andil dalam menghiasi setiap proses-proses perkawinan itu. Selain keberadaan hukum adat dan hukum Islam yang menghiasi perkawinan masyarakat Sasak, terdapat juga tradisi hukum modern, yakni hukum negara. Sebagai bagian dari masyarakat Indonesia, masyarakat Sasak tidak bisa melepaskan diri dari arus besar legisme atau positifisme hukum nasional, yang secara langsung digaungkan oleh negara. Berangkat dari ilustasi ini, maka pembahasan dalam tulisan ini meliputi: interlegalistik antara hukum perkawinan adat Sasak dan hukum agama (Hukum Islam); interlegalistik antara hukum perkawinan adat Sasak dan hukum negara; dan terakhir adalah interlegalistik antara hukum perkawinan adat Sasak, hukum agama (hukum Islam), dan hukum negara.

scholarly journals State Recognition of Customary Law in the South Pacific

2021 ◽  
Author(s):  
◽  
Campbell McLachlan
Keyword(s):  
Human Rights ◽  
Group Identity ◽  
South Pacific ◽  
Legal Pluralism ◽  
The State ◽  
Colonial Period ◽  
Customary Law ◽  
State Law ◽  
The Pacific ◽  
Fresh Impetus

This thesis examines the recognition by the state of the customary law of indigenous peoples by reference to a comparative study of Commonwealth South Pacific Jurisdictions. It aims both to Illuminate the process of recognition as a contribution to the comparative theory of legal pluralism and to describe distinctive elements of the experience with recognition In the Pacific.<br><br>The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.<br><br>This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.<br><br>Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'. <br><br>Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.<br><br>The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.

scholarly journals Implementasi Hukum Islam dalam Masyarakat Indonesia (Pendekatan Sosiologi Hukum)

2020 ◽  
Vol 1 (4) ◽  
pp. 725-739
Author(s):  
Andi Ariani Hidayat ◽  
Qadriani Arifuddin
Keyword(s):  
Islamic Law ◽  
Political Influence ◽  
Modern Society ◽  
The State ◽  
Customary Law ◽  
New Order ◽  
National Education ◽  
Sociological Approach ◽  
Before And After ◽  
Additional Reference

This study aims to determine how the application of Islamic law in Indonesia in the sociological review of law both before and after independence. This research is a type of library research using a philosophical and sociological approach. The results of this research show that: The development of Islamic law in Indonesia has started since before independence and after independence, namely the old order and Entering the new order era under President Soeharto the issuance of Law number 2 of 1989 concerning the national education system which strengthens religious lessons into compulsory lessons from elementary to college. Law No.7 of 1989 regarding religious courts, compilation of Islamic law, Pancasila Muslim charity foundation, construction of Hajj dormitories, special program madrasah aliyah, postgraduate programs at IAIN, Arabic broadcast on TVRI, the formation of religious organizations such as MUI, ICMI, IPHI etc. There are two problems that have a major impact on the application of Islamic law in Indonesia. First: because of the entry of Western law and because it intersects with customary law. Second: Due to political influence and community culture. In a sociological view, Islamic law is difficult to implement perfectly, because Islamic law is both in the area of ​​religion and in the territory of the state. This social problem causes a tug of war between religious principles and state principles. The solution to this tug of war is that in the public domain it is the responsibility of the state, while the individual area is given to religion. Judging from the sociological aspect, the material products of Islamic law in Indonesia must be able to accommodate the problems in dispute and how they are resolved in simple society and modern society. This research is expected to be an additional reference in knowing the application of Islamic law in Indonesia in the sociological review of law both before and after independence.

scholarly journals State Recognition of Customary Law in the South Pacific

2021 ◽  
Author(s):  
◽  
Campbell McLachlan
Keyword(s):  
Human Rights ◽  
Group Identity ◽  
South Pacific ◽  
Legal Pluralism ◽  
The State ◽  
Colonial Period ◽  
Customary Law ◽  
State Law ◽  
The Pacific ◽  
Fresh Impetus

This thesis examines the recognition by the state of the customary law of indigenous peoples by reference to a comparative study of Commonwealth South Pacific Jurisdictions. It aims both to Illuminate the process of recognition as a contribution to the comparative theory of legal pluralism and to describe distinctive elements of the experience with recognition In the Pacific.<br><br>The Pacific case shares many of the features of the Introduction of Western law into non-Western societies generally, but the absence of complex plural legal systems during the colonial period and the contemporary vitality of traditionalism have required a reworking of the policy basis and techniques for recognition.<br><br>This task is approached from four propositions. 'The persistent fact of pluralism' envisages recognition as informed by an acknowledgement that legal pluralism exists and persists as a factual phenomenon, regardless of the extent of accommodation afforded to custom in the state legal system. The nature of this phenomenon and the options open to the state are explored in Chapter 'Legal pluralism and legal theory'. 'A legacy of colonial misconceptions' argues that the dominant paradigm for recognition is colonial and therefore requires critical re-examination. Chapter 11 'The colonial experience and the idea of customary law' discusses the status de jure of customary law in the Pacific during the colonial period and evaluates the impact of colonialism on custom and approaches to its recognition.<br><br>Independence and the reassertion of the indigenous identity of Pacific peoples has created a fresh impetus for recognition. 'The implications of a reassertion of autochthonous values' are explored in three chapters on contemporary reforms: Chapter III, 'custom as a source of underlying law' on the general incorporation of custom; Chapter V, 'Disputes: custom as process' on local-level 'customary courts'; and Chapter VI on 'Land: custom as title'. <br><br>Finally, the fourth proposition, 'justice and group identity', sees recognition as justified by the requirements of justice in relation to Indigenous groups within the nation state. Chapter IV, 'Human rights and cultural relativism', evaluates the scope for group Identity within a framework of non-discrimination and the protection of individuals' human rights.<br><br>The thesis concludes by contrasting the changing ideological role of custom with the realities of recognition and by contrasting recognition by the incorporation of custom into state law with recognition by the adjustment of state law to acknowledge the separate sphere of custom.

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