Enhancing Legal Pluralism: The Role of Adat and Islamic Laws within the Indonesian Legal System

By Warman, Kurnia; Isra, Saldi et al. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2018 | Go to article overview

Enhancing Legal Pluralism: The Role of Adat and Islamic Laws within the Indonesian Legal System


Warman, Kurnia, Isra, Saldi, Tegnan, Hilaire, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

Indonesia consists of seventeen thousand islands divided into 33 provinces which are called home by nearly 17.000 ethnic groups. This made the work of setting up a post-independence legal system a nearly mission impossible for the so-called Indonesian funding fathers. Although they managed to keep the country together, to some extent, the legal system still faces several difficulties, as will be discussed later on. This study analyses the extent to which the co-existence of official and unofficial laws champion legal pluralism as the government endeavours to accommodate the ideas of rule of law, democracy and human rights within the country's legal system after nearly half a century of tyranny (Feith, 1968). It is a common belief that the law stands in close relationship to the ideas, aims and purpose of the society to which it applies. (Lukito, 2013) The debate over legal pluralism and the unification of the law has driven enough ink and continues to do so. This paper does not advocate one system of law over its counterparts. Instead, it argues that empowering both adat and Islamic laws can significantly improve legal pluralism in Indonesia. The paper is organized as follow: firstly, a literature review on legal pluralism is provided to help readers see the void the paper seeks to fill. Secondly, the paper investigates the roles and challenges of both customary and Islamic laws in the development of the law in Indonesia. Thirdly, a conclusion is drawn as to whether or not the current legal mechanism promotes legal pluralism in Indonesia.

LEGAL PLURALISM: AN OVERVIEW

Discussions on the concept of legal pluralism began in the 1930s (Erlich, 1936). The on-going debate has yielded a variety of definitions of legal pluralism. Among the proponents of this concept, much credit is given to John Griffiths who, in 1986, came up with the idea of "strong" and "weak" legal pluralism (Griffiths, 1986). According to Griffiths (1986), "strong" legal pluralism is when the state recognizes that not all law is state law administered by one government backed-institution. A "strong legal pluralism" is "an inexorable state of affairs in which all normative orderings regardless of their origin and mutual recognition by one another co-exist side by side within a normative universe, as Cover put it (Cover, 2005). While "weak pluralism exists when the sovereign commands different bodies of law for different groups in the population by incorporating their normative orderings into the central administration of law and courts". Griffiths argues that this type of pluralism can be seen as a 'technique of governance' or a mere arrangement within state law, as the normative existence of non-state norms depends upon their recognition by the central administration" (Griffiths 1986). Echoing Griffiths (1986), Pospisil (1971) argues that no society has "a single consistent legal system, but as many such systems as there are functioning subgroups". The manifestation of legal pluralism in society is what Pospisil (1971) calls 'legal level'. However, Pospisil's (1971)analysis of legal pluralism is only descriptive as he does not explain what law is to govern when conflict arises between two distinct 'functioning groups'. Tamanaha (2000, 2008 & 2011), on the other hand, argues that because 'state law helps establish rules for social intercourse and maintain social order does not mean that it is the main source of law. Tamanaha believes that multiple normative orders exist within every society and that colonialism not only engendered legal pluralism in former colonies but it did modify their indigenous laws and institutions. This claim of Tamanaha may hold true for some former colonies but it does not apply to Indonesia whereby long existing adat laws were dismissed by the Dutch (Amran, 1981). In sum, nearly all authors discussed above agree that there are laws other than state law that operates interdependently within the same social field. …

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