Development of Customary Law System in the National Legal System

Mhd Azhali Siregar and Madiasa Ablisar

Doctoral Program in Law, Universitas Sumatera Utara, Jalan Dr Mansyur, Medan, Indonesia

Keywords: Customary Law system, National Legal System.

Abstract: The concept of recognition of the existence of indigenous peoples is a concept of limited recognition that

the indigenous peoples are acknowledged to exist along with their rights as long as they are not against the

interests countries and statutory provisions. The consequence of such a concept of recognition, as a direct

derivative of the concept of a State of Law, is that if there is any existence of indigenous peoples and their

rights and interests that are contrary to the interests of the state (national interest), or if there is a rule of

customary law that is contrary to the rule the positive law of the state in the legislation, the existence of

indigenous peoples and their traditional interests and rights can be ignored. The contradiction of interests

between the parties, each of which based itself on the normative order of the legal system completely

different from each other, namely between customary law used as a basis for thinking and acting of

indigenous peoples and positive law used as the basis for thinking and acting for society.

INTRODUCTION

Indonesia is a maritime nation connected by a vast

ocean. Besides comprising thousands of customary

laws, the maritime consequences of this country are

also a great challenge for us to remain committed in

our nation and state life. The consequences of the

diversity of customary law and our country's

marriages threaten the extinction of various tribal

languages, the disappearance of customary law, the

blurring of cultural identities from the middle of

society and the weakness of the authority of

customary institutions in the life of nationality and

statehood.

In each of these customs, languages, tribes and

religions, contained value systems and knowledge

systems that had grown hundreds or even thousands

of years ago. Our country is organized and handed

down through generations with thousands of

customary laws, guided by hundreds of beliefs and

religious systems. Indonesia is a nation built from

hundreds or even thousands of sovereign,

independent and dignified nations, who in their

history have experienced ups and downs. These

thousands of customary laws are a consequence of

various ethnic groups in various regions of

Indonesia.

Since reformation in 1998, many laws and

regulations have been established to recognize the

existence and rights of indigenous peoples on land,

natural resources and other basic rights. These

legislative products touch all levels from the

constitution to the village regulations. Our

constitution before the amendment does not

expressly indicate to us the recognition and use of

the term customary law. Following the amendment

of the constitution, customary law is recognized as

stated in the 1945 Constitution of Article 18B

paragraph (2) which states: "The State recognizes

and respects the unity of indigenous and tribal

peoples as long as they are alive and in accordance

with the development of society and principles state

of the Unitary State of the Republic of Indonesia, as

governed by law. Then a number of laws specifically

related to natural resources contain recognition of

the rights of indigenous peoples. As if it were not

complete a rule if it did not contain recognition of

the existence and rights of indigenous peoples. This

is strongly influenced by advocacy by indigenous

peoples and their supporters who, since its inception,

are indeed going to reorganize relations between

indigenous peoples and the state.

RESEARCH METHODOLOGY

The type of research used in this study is normative

legal research. Normative legal research deals with

1474

Siregar, M. and Ablisar, M.

Development of Customary Law System in the National Legal System.

DOI: 10.5220/0010082614741478

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1474-1478

ISBN: 978-989-758-449-7

the legal norms contained in the legislation and

norms that exist in society. Descriptive analytical

method is used to describe a condition or situation

that is happening or lasting that aims to provide data

as much as possible about the object of research so

that it can explore things that are ideal, then

analysed based on legal theory or applicable

legislation.

RESULT AND DISCUSSION

3.1

Customary Law in the Judicial

System

Customary Law is a law that prevails and develops

in a community environment in an area. There are

several notions of customary law. According

Hardjito Notopuro Customary Law is an unwritten

law, customary law with a characteristic that is the

guideline of people's life in organizing the justice

and welfare of the community and are familial.

Soepomo, Customary Law is a synonym of the

unwritten law in legislative law, a law that lives as a

convention in state bodies (parliament, provincial

council, etc.), living law as a custom rule maintained

in the association of life, both in the city as well as

in the villages. According to Cornelis van

Vollennhoven Customary Law is a set of rules

concerning behavior for indigenous people and the

Foreign East on the one hand has sanctions (because

it is legal), and on the other hand is not codified (due

to adat).

Legal pluralism, substantively legal pluralism is

generally defined as a situation in which two or

more legal systems work side by side in a similar

field of social life, or to explain the existence of two

or more social control systems in one area of social

life or explain a situation in which two or more legal

systems interact in one social life or a condition in

which more than one legal or institutional system

works side by side in activities and relationships

within a community.

As a country that embraces the tradition of Civil

Law System, then in reading the positive legal

system of Indonesia must depart from the hierarchy

of the most powerful legislation that is the

constitution embodied in the 1945 Constitution.

Similarly, in elaborating the regulation of the

existence of indigenous peoples and customary law

in the positive legal system Indonesia, the easiest

thing is to first examine its regulation in the 1945

Constitution. In the Constitution (the 1945

Constitution, which is re-enacted according to the

Presidential Decree dated July 5, 1959) there is not a

single article which contains the basis (legislation)

customary law. According to Article 11 of the

Transitional Rules of the Constitution, "All State

bodies and existing regulations are still valid as long

as there is no new one according to this

Constitution". Prior to the re-enactment of this

Constitution, the provisional Constitution of 1950

applies. In the provisional Constitution Article 104

paragraph 1 says that "All court decisions must

contain the reasons and in the case of punishment

referring to the rules of the law and the rules "But

this provision, which if we interpret the" customary

law "to the extent, contains a grondwettelijke

grondslag (constitutional basis) of the enactment of

customary law, until now has not been given the

legal basis of its operation. The basis of the

legislation of the coming into force of customary

law, which dates back to the colonial period and

which today still prevails, is Article 131 paragraph 2

sub-IS. According to these provisions, then for the

indigenous legal group and the foreign legal class

apply their customary law.

Customary law grew out of the ideals and minds

of the people of Indonesia. Then customary law can

be traced chronologically since Indonesia consists of

kingdoms, spread throughout the archipelago. The

socio-cultural reality is constructed by one poet

constructed by another, and reconstructed by the

next poet. The period of Sriwijaya, ancient Mataram,

Majapahit period some inscriptions (inscriptions)

describe the development of applicable law (original

law), which has set some fields.

Religious, economic and mining rules are

contained in the 732rd Sanjaya Inscription in Kedu,

Central Java; Arranging religion and wealth,

contained in the inscription of King Dewasimha in

760; Land and Agricultural Law is found in the

inscription of King Tulodong, in Kediri, 784 and an

inscription in 919 that contains government posts,

king rights over land, and compensation; The law

regulates civil justice, contained in an inscription

Bulai Rakai Garung, year 860; The King's order to

formulate customary rules, in the Darmawangsa

inscription of 991;

Then in the Airlangga period, the establishment

of the symbol of the royal seal of the head of the

Garuda bird, the construction of the fief with his

privileges, the determination of income tax to be

collected by the central government; Majapahit

period, visible in the governance and governance of

the Majapahit kingdom, the division of institutions

and government agencies. After the fall of

Development of Customary Law System in the National Legal System

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Majapahit, the kingdom of Mataram is highly

influenced by the influence of Islam, it is known

qhisos judiciary, which gives consideration for the

Sultan to decide the case. In the interior, the

settlement of disputes between individuals by village

courts is done in a peaceful manner. At the same

time, in Cirebon it is known: the Religious Courts

decide cases that endanger the general public, the

Digrama Judiciary who breaks adat violations, and

other matters that do not belong to religious courts;

and Cilaga Court is a court in the field of economy,

trade, sale and purchase, accounts payable.

Some of the examples mentioned above show

that the original legal order that has prevailed in

various regions, now known as Indonesia, shows

that the law is based on indigenous people, both in

the form of ruling decisions and laws applicable

within the local community. Within the 1945

Constitution, there are no regulations specifically

regulating customary law, but only the rules on the

existence of indigenous and tribal peoples, namely

article 18B paragraph 2 and article 28I verse 3.

Which reads: "The state recognizes and respects the

unity of indigenous and tribal peoples as well as

their traditional rights as long as they are alive and

in accordance with the development of society and

the principle of the Unitary State of the Republic of

Indonesia, regulated in the law. "While Article 28I

paragraph 3 reads:" The cultural identity and rights

of traditional communities are respected in harmony

with the times and civilization."

Our constitution before the amendment does not

expressly indicate to us the recognition and use of

the term customary law. However, when examined,

it can be concluded there are actually formulations

contained in it contain the noble value and the soul

of customary law. The preamble of the 1945

Constitution, which contains the life view of

Pancasila, reflects the personality of the nation,

which lives in the values, mindset and customary

law. Article 29 paragraph (1) State based on the One

Supreme God, Article 33 paragraph (1) The

economy is organized as a joint effort based on the

principle of kinship. At the practical level, the 1945

Constitution of the State introduces a right called the

State Controlling Rights (HMN), it is derived from

the Ulayat Right, the Right to Pertuanan, which is

traditionally recognized in customary law. In the

Constitution of RIS Article 146 paragraph 1 stated

that all judicial decisions should contain the reasons

and in the case must mention the rules of law and the

rules of customary law as the basis of the law

Furthermore in the Provisional Constitution, article

146 paragraph 1 is reloaded. Thus the judge must

explore and follow the growing sense of law and

justice of the people. In Article 102 and taking into

account the provisions of Article 25 of the 1950

UUDS there is an order for the authorities to make

codification of the law. This then

includes

customary law. This codification order also

applies

also to customary law, and this codification

command is the first time mentioned in the Laws

and Regulations of the Republic of Indonesia which

govern the provisions of codification of customary

law, although in reality it has not been implemented.

The law of a nation is actually a reflection of the

social life of the nation concerned, then in fact the

formation of the law of a country must be free from

the influence and interests of other countries. If later

loud voice is voiced, we need the formation of a

democratic law, but the establishment of a

democratic law does not necessarily mean that the

established law will be effective. In this context, for

example, the mission of a law lies not in how

democratic the formation of a legislation is formed,

but it lies in the extent to which what it seeks to

achieve from the formation of a law can be achieved

or achieved. That is, the advantages of participatory

law-making are more of an effort to improve the

democratic character and legitimacy of the law of

the established law. If the law of a nation is a

reflection of the social life of the nation concerned,

it becomes a paradox with the globalization of the

law. Although in certain respects the globalization of

law is understood also the globalization of law will

continue in different legal systems. Regardless of the

globalization of the law, it is difficult to avoid, but

the nation state will not simply surrender their

sovereign function, and in a global system will not

be free-controlled from the nation state because

globalization is not a toll road without mechanisms.

The mechanism of how the public relations traffic of

a nation state is built on an agreement or contract, a

convention, so that the difference that was originally

a limitation is a national law, then the restriction is

an agreement between the nation state.

3.2

Comparison of Customary Law

Systems and National Legal

Systems

The first thing to understand in examining the

customary law system is that this legal system is a

legal system totally different from the western legal

system and all its follow-up concept, including the

concept of the existence of the state. In view of the

diversity of customs in the history of French law

over the centuries, the country has a wide variety of

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customs, since it consists of 60 separate

geographical regions, each of which has its own

ruler. When Gaul became part of the Roman Empire,

Roman law prevailed in this region, but over time,

local customs still persisted. In France there is

clearly no Common Law in the early Roman period,

whether it is related to the private law in a

comprehensive way, nor is it managed by legitimate

sovereignty. In the 14th century AD, the source of

French law was the Codes of Georgius and

Hermogenius, the institutes written by Gaius and the

words of Paul. In the 5th century AD, this French

legal source was compiled but nowadays some of

Gaul's territory has been mastered by France.

If the state legal system and the concept of the

State of the Law are based on the existence of a state

with historical roots in ancient Greece, the

customary law system stands on the historical roots

of indigenous peoples itself that existed long before

the concepts of state law and the State of Law were

transplanted by Europeans colonialism in eastern

and southern countries, including in the archipelago.

Factors that trigger the occurrence of legal

innovation a particular community. We can also

study whether a law imported elsewhere retains its

original features. Through Comparative Law, we can

also find out the factors that hinder and trigger the

development of law in certain areas including the

formal law enforcement process that occurs. In

addition, Comparative Law has practical uses.

Through Comparative Law, law reform activists can

better understand their roles, duties and

responsibilities. They become competent in

choosing and deciding which foreign law is eligible

to be imported in full or through local modification.

This would be in line with the basic concept of

customary law as proposed by Van Vollenhoven

which states that customary law is a law (for

indigenous Indonesians) which is not derived from

the regulations made by the Dutch East Indies

government. According to Koesnoe, associated with

flexible and dynamic styles, the traditional pattern of

customary law also brings with it the meaning that

what is the rule of today in customary law will not

abandon what was in the past.

Based on the description of the basic concept of

customary law above, it is clear that customary law

is a distinctive legal system and therefore different

from other legal systems, including the western legal

system as part of the concept of the State of Law.

Thus, it can be said that customary law is a legal

system that is not concurrent with the concept of the

State of Law. This lack of awakeness can, among

others, be seen from some quite contrasting

differences between the characteristics of customary

law and the common elements in the concept of the

State of Law. These differences include the

following:

First, that in the concept of the State of Law, the

supremacy is the law of the state, whereas customary

law is not an artificial law of the state but a law born

from the daily habits of society.

Second, that in the concept of the State of Law

the principle of legality that the law must be clear,

definite, and measurable and unchangeable is the

absolute prerequisite, whereas in the customary law

it is not written and flexible and dynamic, and every

problem that emerges precisely settled according to

existing circumstances (tends to be arbitrary).

Third, in its substantive category, one of the

elements of the vital Law State concept is the

protection of individual rights and freedoms. This

indicates that in the concept of the State of Law, the

rights of individuals are fundamental rights, as a

consequence of liberalism in European culture as the

womb of the birth of this concept, and

simultaneously as the realization of the purpose of

the State of Law itself that is to protect (salvation

and private property) of every citizen of an arbitrary

act by either the state or by a fellow citizen. This is

in contrast to customary law in which the ultimate

right is not the right of the individual, but the right

of fellowship. Under customary law, an individual's

rights may be disregarded if he or she is in conflict

with the right of fellowship.

Hart explains that there must always be primary

rules in every society, because otherwise there will

be total turmoil and such a society can’t survive, for

the law to exist, the need for complex legal

regulation, the secondary rules in its terminology

whose primary purpose is to regulate legal processes

and to give the rule of law. Thus there are two

necessary conditions and sufficient conditions to the

existence of a law. On the one hand, rules

concerning valid behaviour according to the criteria

of validity in the system shall be generally adhered

to, and on the other hand, rules that define the legal

criteria of validity and the units whose adjudication

shall be effectively accepted as official standards of

public behaviour by officers

CONCLUSIONS

In Indonesia there has not been established a law

that specifically regulates the existence of customary

law community as mandated by Article 18B

paragraph 2 of the 1945 Constitution, In fact there

Development of Customary Law System in the National Legal System

1477

are many other laws and derivative technical

regulations governing the existence of indigenous

peoples, but of the many legislation there is one

similarity that is the concept of recognition of the

existence of indigenous peoples is the concept of

limited recognition that the indigenous peoples

recognized existence (along with their rights) as long

as it is not contrary to the interests of the state and

not contrary to the provisions of the legislation.

In the concept of the State of Law, the

supremacy is the law of the state, whereas customary

law is not an artificial law of the state but a law born

from the daily habits of society. In the concept of the

State of Law the principle of legality that the law

must be clear, definite and measurable and

unchangeable is the absolute prerequisite, whereas in

law custom law it is not written and flexible and

dynamic, and every problem that emerges is solved

according to the circumstances (which tends to be

arbitrary). In its substantive category, one of the

elements of the vital Law State concept is the

protection of individual rights and freedoms. This

indicates that in the concept of the State of Law, the

rights of individuals are fundamental rights, as a

consequence of liberalism in European culture as the

womb of the birth of this concept, and

simultaneously as the realization of the purpose of

the State of Law itself that is to protect (salvation

and private property) of every citizen of an arbitrary

act by either the state or by a fellow citizen. This is

in contrast to customary law in which the ultimate

right is not the right of the individual, but the right

of fellowship. Under customary law, an individual's

rights may be disregarded if he or she is in conflict

with the right of fellowship..

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