Academic journal article Ethnology

Discourse Shopping in a Dispute over Land in Rural Indonesia (1)

Academic journal article Ethnology

Discourse Shopping in a Dispute over Land in Rural Indonesia (1)

Article excerpt

In Indonesia, since the time of colonial government, the main source for the determination of land rights has been local, indigenous law. Nonetheless, the state has always attempted to influence the way land is managed. This article traces the changes in justification for this influence, with the example of a conflict over land in a Sumatran village. Every actor in the dispute makes his own choice of argument, and creates his own interpretation of facts, rules, and norms. Not only do legal arguments play a role, but political, cultural, and historical arguments are used. This phenomenon may be called discourse shopping. (Land rights, legal pluralism, Indonesia, dispute settlement, social change)

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Since the start of active colonial administration of Indonesian internal affairs, the government has influenced the way in which local communities deal with property rights. Periods of liberalism, "ethical politics," and independence all needed different conceptualizations of property rights. Ethical politics was opposed to the liberalism of colonial policy and showed a "paternalistic concern for the welfare of Indonesia's native population, presumed to be threatened by untrammeled commercial development and westernisation" (Kahn 1993:187). Indigenous property rights, contained in adat (customary law), had to be adapted and manipulated for this purpose (von Benda-Beckmann and von Benda-Beckmann 1999). The different interests of the parties and the subsequent differing ways in which adat was interpreted have led to a situation in which the status of many plots of land is not clear. Communal land especially suffered from this insecurity, since both the concept of communities as well as the rights they could or should exercise on the land were often changed. At this moment, the Indonesian legal system is still one of overt legal pluralism, with adat, state law, and religious law all being recognized by the state. (2) Property rights are still a source of great insecurity in contemporary Indonesia. With the Basic Agrarian Law of 1960 and the constitution of 1945, the government has given itself the right to contest village rights to natural resources, including communal land and water sources, in the name of the public interest. This has led to numerous conflicts in which, until recently, the voice of villagers was muted by the ruling elite. The land dispute in this article illustrates this kind of insecurity.

Arguments appear to be framed in a vocabulary that is thought to be appropriate and likely to be effective. As Tanner (1969:24) indicates, "law, religious and customary principles, and new values are not simply guidelines for dispute settlement, but become, often in the context of protracted discussion and deliberation, the currency of symbolic barter." This means that people do not automatically use the arguments with which they would be identified first, or choose the vocabulary which they would be expected to use according to their place in society. Villagers sometimes frame their arguments in terms of state law, whereas state civil servants may use adat rhetoric. The parties involved in a conflict can use both state law as well as other normative orders in a flexible way (von Benda-Beckmann 1985). While the way disputes are framed, and the role of the different normative orders in the process of dispute settlement, have often been described (e.g., Comaroff and Roberts 1977; Moore 1978), the case presented here illustrates that not only legal arguments but arguments based on history, politics, and power were applied in a way that changed when economic and political conditions changed. People show enormous creativity in the way they seek to employ these different kinds of discourse, in a process that could be described as discourse shopping, as an analogy to the notions of "forum shopping" (von Benda-Beckmarm 1984) and "idiom shopping" (Spiertz 1986).

The multitude of claims, interests, interpretations of rights and norms, and facts that are used by the parties to the dispute form an excellent example of the functioning of a society with overt legal pluralism, and of the importance of power relations in the development of conflict resolution. …

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