Customary Law System and the Influence of Religion on the Indonesian Legal System

The formalization of law in Indonesia is the climax of the reification process. This reification occurs because it is controlled and nominated by the ruling class in the interpretation of the law. Legal arguments are made in a repressive condition because they must be supported by a legal arrangement that seems to explain social conditions comprehensively. On the other hand, each law is a system; that is, the rules are unanimous based on the mind's unity. Legal entities in Indonesia (as incarnations in customary law) are a system that is based on the basics of the Indonesian nation's reason, which is not the same as the mind that controls the western legal system. To be aware of the legal entity system in Indonesia, one must explore the essential nature of the reason that exists in Indonesian society. However, the principle of concordance seems to have been ingrained among legal experts in this Republic, so that the legal system is not adopted unequally, the Western legal system dominates the national legal system, so that the religious and customary law systems have less room to be enforced by the state. That is why The familiar law system and the Islamic legal system in Indonesia are not developed and are not well absorbed in the national legal system; this indication can be seen from the percentage of statutory legal products produced by the state which adopt more Western legal strategies such as the Civil Code, the Criminal Code. Commercial Code, Human Rights (HAM) law. In the context of the development of Indonesian law, demands to revise and even replace various laws and regulations originating from the Dutch colonial such as the Criminal Code, the Civil Code, which are no longer by the identity of the Indonesian nation, the renewal of these provisions is a historical necessity and a non-negotiable constitutional imperative. This research is library research . . The method used in this research is the method of philosophical hermeneutics, with the following elements: interpretation, description, and comparison. The study results indicate that, in reality, today, the practice of applying the small claim court mechanism in positive Indonesian criminal law has been widely used in various disputes that occur in society, especially against crimes that are light and not difficult to prove.

Customary Law and the Nationalist Project in Spain and Peru

Bali, as a province with strong roots in local cultural traditions and significant economic importance for Indonesia, is striving to balance modernity and tradition, economics, especially mass tourism, and cultural identity. This is why Universitas Warmadewa, one of the largest Balinese universities, chooses the theme ‘Local Wisdom and Business Law’ for its international conferences each year.As a non-Indonesian legal scholar, this theme presents two challenges for me. Firstly, I am not an expert in tourism economics and can only approach the topic from a traditional market law perspective, theoretically. Secondly, the terms used in Indonesian legal discussions may seem vague and unclear from a German perspective, as the legal discussion in Indonesia integrates traditional legal phenomena pragmatically into the applicable legal system. This may also be historically conditioned because since independence Indonesia has to handle a legal pluralism in law, which also finds its cause in the legacy of the colonial era.When speaking on the legal perspective of ‘local wisdom’, several questions are unclear to me:What exactly is local wisdom and how can it be defined?Where does it fit into the Indonesian legal system?What role can local wisdom play in contemporary law?Local wisdom may be understood as part of traditional customary law or Adat, at least in terms of its influence on legal issues, as the conference theme suggests. The terminology around ‘customary law’, ‘Adat’, ‘indigenous law’, or ‘living law’ is still a problematic issue in Indonesian scientific discussion and should only be briefly mentioned in this presentation. The term ‘Adat law’ was originally not used in Indonesian society and was first systematically used by the Dutch. Van Vollenhoven, considered the ‘father of Indonesian Adat law’ by Indonesian scholars, defined Adat law as law that is not based on codified legal rules from the legislator. This definition is still used by contemporary Indonesian scholars. Adat law in this sense contains sanctions, making the character of ‘law’. It was characterized by Van Vollenhoven as dynamic and flexible folk law, which combines the term with the often-used term of ‘living law’. There are numerous discussions in Indonesian literature about Indonesian customary law, its functions, and significance, but the terminology has not been clearly defined and the role of religious law is also subject to numerous publications.Therefore, having read various contributions on the topic, I am left confused because some of them discuss the existence of legal principles of living customary law and describe them as “national Indonesian principles,” which can replace parts of the post-colonial Indonesian law, but they do not clearly identify these principles. The topic seems to be of almost patriotic importance to Indonesia, making it particularly difficult for foreign scholars to approach the subject in presentations before Indonesian colleagues. My contribution should be seen in light of this difficulty, as a first observation of the phenomenon from a foreign perspective.The term Adat is already difficult to comprehend, and this is even more true for the term “local wisdom” in a legal context. So, what is the “Local Wisdom” that I am asked to talk about? The Terms of Reference of our conference describe the meaning of “local wisdom” mainly as the clash of market actors in local Balinese tourism that can lead to conflicts, which the law should resolve. These conflicts are said to occur because local communities and institutions, based on a kind of traditionally grown trust, seek to build and maintain their business relationships in the tourism industry. This trust, which one could call “traditional good faith,” meets the need to regulate contractual arrangements more formally in terms of contract law (“more official...instead of just relying on promises or good faith”).In this sense, local wisdom is an aspect of good faith. Based on this understanding of the term, I have no systematic issues with the term “local wisdom.” However, it should be noted that good faith and contract, as a predictable shaping of legal relationships between market actors, should not be seen as opposites. It is possible and necessary to resolve disruptions in contractual relationships in light of good faith and, if necessary, adapt contractual regulations. Here, “local wisdom” should not be understood as a unique source of good faith, but as a general aspect that can influence the expectations of the contracting parties and their trust in shaping the law. This raises the question of which factors should be taken into account by the non-local contracting party in good faith, and which should not. It is a question of the concrete assessment of the structure of interests and the balance of the contract, how to allocate risk and assign external aspects to the contracting parties and which aspects should be considered subsequently.This is a theoretical matter, and it is unlikely to play a significant role in practice since local market actors and communities have the freedom, within the framework of private autonomy, to incorporate their traditional interests into the contract negotiations. This allows for traditional interests to participate in the “equivalence justice” of the contract. However, if the traditional interests of the local community result in unacceptable consequences for the contract’s execution, the question of whether these reasons can lead to a change in the contract’s basis may arise. In civil law systems, the clausula rebus sic stantibus is regulated as a limitation of the pacta sunt servanda principle and falls under the principle of good faith (bona fides). If the invocation of “local wisdom” by one party leads to the other party having to agree to an adjustment, it would have to be examined.I would like to give you an example of this, which seems credible even if no prove about the issue can be delivered due to the ‘popular’ source: A person without Indonesian citizenship acquired the right to use a plot of land with a house in Bali ten years ago. Since foreigners cannot acquire land ownership in Indonesia themselves, the foreigner had agreed on a legal arrangement with an Indonesian citizen resident in Bali, in which the Indonesian acquired ownership (hak milik) of the land with the foreigner’s money and agreed on right to use for the foreign partner. After ten years, the foreigner wanted to sell the property again to move to his country of origin. The agreement with the Indonesian partner stipulated that the Indonesian partner must agree to the sale of the plot on the wish of the foreign partner and would receive 10% of the sale amount in the event of a sale. In the case described, however, the Indonesian partner seems to have refused to sell the property on the agreed terms. He was not satisfied with the 10% share and demanded a 70% share instead. As justification for this, he argued that the contract terms should be changed because he had spiritually enhanced the property over the years through certain religious rituals and this required a revaluation of his shareholding.It is not known whether the case was heard in an Indonesian court and how it was finally settled. Assuming the case had occurred as described, from the perspective of Indonesian civil law, it is clear that no change in the business basis of the contract occurred as a result of the Indonesian partner’s spiritual acts, which can lead to an adjustment of the agreement between him and the foreign contractual partner. Just as local communities depend on their interests in cultural identity being taken into account even in legal relations with partners coming from outside, foreign investors must be able to rely on certain standards of contractual obligation. The principle of good faith would be grotesquely overstretched if local contracting partners could use fuzzy notions of ‘local wisdom’ to make contractual arrangements more flexible in their favour.Another example of the clash between traditional legal customs and supra-regional legal ideas in highly traditional markets with supra-regional economic importance, such as Bali, is the handling of legal disputes and methods of dispute resolution. The trust of traditional communities in supra-legal ties of interest in business relationships, as mentioned in the Terms of Reference to this Conference, meets a systemic trust in formal contractual regulations of non-local actors. The reference points of trust of the respective groups of market actors thus differ. This also affects dispute resolution. According to Sulastriyono, the voluntary character of traditional customary law has the advantage over civil law methods of litigation and dispute resolution of a ‘win-win’ solution, which leads to greater acceptance of the solution by the parties to the conflict. In theory, this is undeniable. However, it is questionable whether this acceptance can also be achieved among contract participants who do not originate from the respective culture, because the existence of sufficient advantages for a party may well depend on the integration of the party in the respective local society. Moreover, the indisputable advantages of consensual dispute resolution can also be well integrated in state procedural law via mediation mechanisms.Cases such as the one outlined one above would in principle be likely to erode the confidence of foreign investors in Indonesian law in general if courts do not rule clearly and draw clear boundaries here. The example seems to be a particularly extreme case, but it shows how important it is to clearly determine the meaning and possible role of terms such as ‘local wisdom’ and ‘tradition’ for use in law. Culturally related aspects are prone to serve as a tool for discrimination against individuals and companies that do not belong to the respective cultural environment. The difficulty, for example, of establishing an intellectual property right on cultural heritage follows not only from the contrast between individual subjective rights and collective subjective rights. It follows above all from the problem of determining the collective rights holders who are to benefit from ‘their’ cultural heritage. Who is a member of a certain culture? Is there a generational link or does it depend on the integration of the individual into his or her living environment? If the legal system does not want to fall back to abstruse considerations of ‘blood identity’, what remains is the assignment of such claims to territorial authorities or the state itself, whose task it is to protect cultural diversity on its territory. This is the path that the Indonesian legislature had taken in Art 38 Law No 28/2014 on copyright law.The misuse of cultural aspects carried into the application of law is also visible in another aspect: In another paper I have pointed out the problem that the concept of traditional customary law in Indonesian law and the position of Adat law in the hierarchy of norms seems in need of clarification. Shidarta notes that there is no sufficient clarity about the relationship between Adat law and state law and thus no consistent system of Indonesian law as a whole. Accordingly, the maturation of an independent Indonesian legal system suffers to this day from the internal conflict with the colonial legacy of existing state law based on Dutch civil law and the lack of a consistent overarching pluralistic concept of law. This is seen by Shidarta as a major reason why the systematic positions of customary law, Islamic law and western law within national law are not clearly defined and why a clear hierarchical determination of the various sources of law in relation to national law is lacking. The doubts about the systematic location and certainly also the failure to establish the principles of traditional customary law as original Indonesian law after the attainment of independence instead of the sources of law inherited from the colonial period are probably due - in addition to the idea of the state founders of an Indonesian unitary state (‘eenheidstaat’) - above all to the disagreement about the concept of customary law, which is formally understood in the sense of a binding source of law defined during the colonial period, or as post-colonial Adat law in the sense of traditional customary rights of various Indonesian ethnic groups either with a binding character or as norms of social order based on voluntariness. In this respect, too, different definitions of the term can be found in the literature:There is thus generally a more philosophical recognition of the importance of traditional customary law in the sense that customary law reflects the actual sense of law of the people and the Indonesian people as a nation. The latter statement seems problematic to me because the statement only applies with regard to the significance of customary law as a source of law, but not to the content of the individual customary laws of the various ethnic groups, in which different legal customs apply in each case. It therefore seems questionable to me whether Adat law can be understood in the sense of an alternative to Indonesian state law. In my opinion, Adat as a source of concrete legal norms has a supplementary development perspective in the communal area. Here it can certainly have an influence on economic life in the regions if it is applied consistently and transparently, and its importance would grow especially if the autonomy of municipal territorial units were strengthened, and a strong federalism were developed. However, a scientific inventory of norms and principles of local customary law is then required, and a clear formulation of such norms is needed, because it must be ruled out that the invocation of undefined, non-transparent or arbitrarily formulated Adat rules unduly restricts the freedom of market actors and are used as protectionist instruments in the provinces.In this sense, I believe that the postulate that Indonesian law must simply recognise Adat law as it has grown and as it is applied alive within the Indonesian local societies falls short, because the compatibility of social rules based on voluntariness and constantly changing with the overall legal system based on the rule of law is at least debatable. In other words: either one renounces the legal certainty and predictability of legal norms in the area of traditional customary law. This could then constitute a breach of the constitutionally enshrined principle of the Rule of Law. Or one formulates clear norms based on traditional legal principles, which have the character of binding legal norms and applies them in the sense of subsidiarity in the local environment with priority over central state law in certain predefined aspects. Then the rules of the hierarchy of norms must be correspondingly clear. However, the question of the hierarchy of norms then no longer presents itself as a problem of the nature of Adat or customary law because the latter would have lost its character as actual customary law. The advocates of a strong recognition of Adat by state law will, however, reject this path because they see the advantage of traditional customary law over state law precisely in its flexibility and ability to change. This flexibility would no longer be readily available through an integration of traditional principles into a local classical law in the sense of imperative norms.A clear hierarchy of norms defined by constitutional law seems indispensable, because such local customary law cannot displace state law without further ado, but only if the principle of subsidiarity and the better regulation of local circumstances by local law indicates otherwise. This would also be in line with the philosophical assessment of local customary law as the law that best captures the living conditions of the people in its cultural area of application. The importance of the principle of subsidiarity should generally be given more attention in the discussion on legal pluralism in Indonesia. This can not only ensure greater recognition of traditional customary law, but also enable the transparency necessary for the predictability of the law.Insofar as Adat is to be understood as the source of ‘abstract normative’ aspects, as certain common Indonesian legal values and principles in the sense of a ‘pan-Indonesian’ legal order and, as such, is to find its way into an independent state Indonesian civil law, legal scholarship in Indonesia will also have to identify and clearly define these principles. In doing so, it will be necessary to determine which principles of traditional customary law in the various regions of the archipelago are suitable as overarching legal principles, so that they can possibly have an identity-forming effect in a national private law. This difficult process might lead to reform of the Indonesian Civil Law which meets the special requirements of a socially and culturally integrated legal system.Indonesia as a state with a unified internal market needs a cross-cultural private law and commercial law. Consideration of the interests of local communities and traditions is of importance in a multicultural state. The Indonesian constitution therefore emphasises the specifics of traditional rights and thus guarantees Adat its own status in the legal system. However, there seems to be a lack of a clear hierarchy of norms in the legal system and a clear definition of the nature of Adat. A hint of a certain hierarchy between Adat and state law is indeed found in agricultural law (Art. 5 Law No. 5/1960 on the Basic Regulations of Agrarian Principles) and in forestry law (Law No. 41/1999 on Forestry). Adat is recognised here but must harmonise with state law. It is therefore likely to be in a relationship of subsidiarity to state law. The fundamental assertion of the primacy of state law over other co-existing legal systems is also in line with the view of Indonesian legal scholars such as Sunaryati Hartono. Referring to Griffiths’ formulation of “weak legal pluralism”, where co-existing legal systems are subordinated to a dominant formalistic national law, it can be stated that the Indonesian legal system follows this model.In my opinion, the integration of traditional customary law into the legal system should not be done as a mere tolerance of state law towards deviating regulations of facts in certain regions. From my perspective as a foreign observer, this seems to lead to significant problems for the development of the Indonesian economy and for investment. In particular, this seems to me to be the case for Bali. Local Wisdom can be incorporated into the contractual relations of the parties within the framework of private autonomous arrangements. A ‘creative’ qualification of protectionist measures against outside market actors or the justification of the failure to sanction breaches of contract or violations of law against outsiders as ‘Adat’ or ‘protection of local traditions’ should be consistently avoided.Incidentally, it seems to me that in contract law there is no real opposition between state law and traditional customary law. Either the parties trust each other, in which case state law does not prevent an agreement based on good faith. Or they do not, in which case only state contract law can lead to proper solutions. The same applies to traditional dispute resolution methods, to which the parties to the conflict can easily submit. In contrast, the integration of customary law as independent Indonesian legal principles or as legal norms at the local or municipal level into Indonesian law would require considerable academic effort. For this, the principles concerned would have to be clearly identified, systematised, and formulated to be able to substantiate a claim to validity beyond the respective local communities. The mere reference to historically evolved convictions of local communities is too vague. The term ‘local wisdom’ seems to me to be problematic in this sense to accurately describe the question of the collision of traditional customs and expectations of outside market actors, especially since it is already conceptually positively evaluative. Finally, it should not be forgotten, that the continental European codifications are culturally neutral and in big parts based on the Roman law. Roman law itself was not developed under the cultural framework of northern and middle European regions, however it served well as source for the modern European codifications. These codifications are working fine until these days in different nations without obvious incompatibilities with local traditions. The amount of a ‘Volksgeist’ after the idea of Friedrich Carl von Savigny within the Private Law does not play a big role in the contemporary discussion as law should be seen in a pragmatic way as a viable tool to organize the modern society. Indonesia is an important economically emerging nation. As such it might be a good idea to keep an internationally compatible private law, which might be carefully adapted to certain peculiarities of the Indonesian society. The use of general clauses as entrance doors for local legal convictions seems to be a good way for that and a clearly defined legal hierarchy with a constitutionally based legal subsidiarity principle seems important. In contrast, the foundation of modern law on nationalistic, local, or indigenous traditional customs should only be done with extreme caution, if at all. The contemporary discussion on the role of Adat in Indonesian law shows the great difficulty of determining viable legal rules that can enter a future reformed Indonesian private law as ‘originally Indonesian’. The criticism against Von Savigny’s ‘Volksgeist’ idea also applies here: Defining who the ‘people’ are and what constitutes their common identity is already hardly rationally possible in a non-multi-ethnic state, even more in a multi-ethnic state. National identity-forming circumstances are hardly suitable as common principles for pluralistic societies.

The Unitary State of the Republic of Indonesia itself has three inheritance legal systems in its implementation, namely based on local customary law or customs, religious law or beliefs adopted such as Islamic inheritance law, and there are also laws that are made and arranged in such a way by legislators such as inheritance law. Civil Code. In Indonesia, the three types of legal systems live in society according to the beliefs and religions of each community. This writing will examine specifically the comparison of inheritance that applies in Indonesia, namely "Customary Inheritance Law" with "Islamic Inheritance Law". Inheritance will take place if the testator dies and the heir to the inheritance. In the Minangkabau tribe itself in terms of inheritance from the past until now adhered to the matrilineal system or based on the maternal line, in other words, in the inheritance system, the degree of women was higher than that of men. The problem that will be raised in this study is how the distribution of inheritance in the Minangkabau tribe and comparing the inheritance system based on "customary law" with "Islamic law" and what obstacles are caused in the distribution of inheritance in the Minangkabau tribe. With this comparison, it is hoped that it can be seen and differentiated between pure inheritance law and customary inheritance law and which are included in the receptie theory. This study uses a field research method, with a comparative approach that is descriptive in nature. The data used are primary data and secondary data and draw conclusions based on descriptive-analytic-qualitative. The research conducted includes qualitative causality research. The purpose of this study is the results of this study indicate that there are differences and similarities between Minangkabau customary inheritance and the compilation of Islamic law itself.

This research examines the existence of Islamic Law and Customary Law in Indonesia's national legal system which reflects legal pluralism in a country with high cultural and religious diversity. The purpose of the research is to explore the role and integration of Islamic Law and Customary Law within the national legal framework, particularly in the context of the application of sharia principles and the recognition of customary law communities. This research utilizes a qualitative descriptive method with analysis of documents, legal literature, and relevant legislation, as well as a historical approach to understand theories of legal acceptance such as Receptie and Receptie in Complexu. The results of the analysis show that Islamic Law has gained significant legitimacy, especially through the Compilation of Islamic Law (KHI) which regulates family law and inheritance. Meanwhile, Customary Law is also recognized in Article 18B of the 1945 Constitution as an important part of the national legal system, although its implementation faces modernization challenges. This research finds that the interaction between these two legal systems produces not only challenges but also opportunities to build a national law that is adaptive and responsive to the needs of society. Thenovelty of this research lies in the comprehensive analysis of the dynamics of harmonization of Islamic Law and Customary Law amidst the social and political complexities in Indonesia. This research emphasizes the importance of an inclusive and contextual approach in building a just and sustainable legal system, which accommodates local religious and cultural values.

Indonesia is a constitutional state that integrates three distinct legal systems: customary law, Western law, and religious law. Among these, religious law particularly Islamic law serves as a pivotal source in shaping national legislation. This study seeks to examine the influence of Law No. 1 of 1974 on Marriage and the Compilation of Islamic Law (KHI) on the development of Islamic family law in Indonesia. Furthermore, it explores the role of these legal instruments in facilitating the integration of Islamic law within the broader national legal framework, and how their enactment reflects the evolution of Islamic legal politics in the country. Employing a qualitative methodology through library-based research, the study finds that the promulgation of Law No. 1 of 1974 and the KHI represents a significant milestone for the Muslim community in Indonesia, effectively curtailing the predominance of customary law in regulating Islamic marital affairs. The KHI, as a uniquely Indonesian fiqh, not only provides legal certainty in matters of Islamic family law but also underscores the state’s formal acknowledgment of Islamic law, particularly during the New Order period, thereby reinforcing the harmonization of religious and national legal systems.

Prophetic law is an ancient legal framework rooted in divine commandments, such as God's Ten Commandments to Moses, as well as Christian and Islamic laws, nowadays commonly referred to as religious law. The meaning of prophetic law is religious law from Abrahamic religions. Particularly, Christian law has significantly influenced Western civilization, with its impact extending to regions like South Africa besides customary law. Similarly, Islamic law has also left a lasting impression on Indonesia's legal system besides customary law. This article employs a comparative law method to analyze the constitutions of Indonesia and South Africa, focusing on the legalization of prophetic laws in both countries. The research reveals that while the formation of prophetic laws in Indonesia and South Africa shares a common foundation in the anti-colonial spirit, the two nations differ in their approaches to legal development. In South Africa, public participation plays a more prominent role, with citizens having the ability to submit petitions to propose or repeal laws. In both countries, the recognition of prophetic law is explicitly enshrined in their constitutions. However, a commonality exists: the dominance of the positivist legal school in the process of legalizing prophetic laws. In both Indonesia and South Africa, prophetic and customary laws must be codified into formal legislation to be considered valid and enforceable.

Harmonization between customary law and Islamic law (fiqh) has long occurred in our homeland. This study aims to illustrate the harmonization between Islamic legal institutions and customary institutions. This research is an empirical legal research, empirical legal research is research whose object of research is the practice of legal events or occurrences. The approach used in this study is a socio-legal approach, that used to analyze the social interactions between the Panyabungan Religious Court and customary institutions in implementing age dispensation. The results of this study show that this harmonization had run well between Islamic legal institutions and customary institutions. There is harmonization of existing norms or rules that apply in society. In substance making Islam more widespread in society and the state, from the understanding of classical jurisprudence to other legal products namely qadla, Islamic Law in substance continued to develop and acquire all regulations towards the rule of Islamic law as a whole. The similarity of certain functions within the customary law system, the Islamic legal system, and the national legal system according to the scope of their duties determines the extent to which harmonization occurs. The method of harmonization between Islamic law and customary law can be achieved in three ways, namely first; Harmonization of understanding, Second; Harmonization is carried out actively,Third; Passive harmonization.

Indonesia is a country that does not adhere to Islamic teachings in terms of law; in terms of inheritance itself, Indonesia adheres to three applicable laws, namely, inheritance law according to Islam, civil inheritance law originating from the Civil Code, and customary inheritance law. Islamic inheritance law and customary inheritance law certainly have different provisions and have their own characteristics. Therefore, the author wants to explain more deeply the division of inheritance in Islamic law and customary law in this article. In compiling this article, the author uses qualitative descriptive research, which is a type of library research with sources from journals, books, and other scientific works. In this study, researchers concluded that customary inheritance law and Islamic inheritance law have similarities in the distribution of inheritance, but customary inheritance law sometimes does not comply with the provisions in Islamic inheritance law, such as it is required that the heir must die, in customary inheritance law the heir does not have to die, meaning that the heir must die. Inheritance may be divided when the heir is still alive; not only that, in Islam, men get two parts, and women get one part, but in customary inheritance law, things like that sometimes do not apply. However, they are divided equally between men and women. What makes the difference between the distribution of Islamic and customary inheritance law is that in customary inheritance law, there is a principle of individuality and balance. With the principle of balance, the distribution of inheritance can differ from one another.

Inheritance law is a law that regulates the transfer of assets left by a deceased person and its consequences for his heirs. Inheritance law is one element of customary law in Indonesia. The patrilineal principle, in which inheritance prioritizes the male lineage, is upheld in Batak inheritance law. According to Batak customary law, men and women are treated differently. The type of research is normative juridical. The data source is a secondary data source. The nature of the research is descriptive analytical. Data collection techniques are literature studies and document studies. Data analysis uses a qualitative approach method. The purpose of this study is to determine the influence of the Batak customary law system as a source of inheritance law in Indonesia, and to determine the implementation of Batak customary law on inheritance law in Indonesia. The inheritance system in Batak society adheres to the Patrilineal Principle. In this principle, the position and influence of men in Batak customary inheritance law are very strong. According to civil law, inheritance is defined as a set of legal provisions that regulate the general legal consequences in the field of property law arising from a person's death. Based on this theory, it can be concluded that the position of Batak boys and girls in the inheritance distribution system and the application of customary law in the distribution of inheritance for boys and girls is in harmony. The Batak Toba customary inheritance law is the basis for the distribution of inheritance in its unique society. Its teachings that include inheritance flowing through the male line are cassation and dakdanak. According to the Batak Toba inheritance law, this uniqueness gives the status of first heir to the eldest son of the family, thus giving him his own identity. The customary inheritance law system in Indonesia generally tends to follow positive legal norms, although the principle of dakdanak emphasizes more on justice in the distribution of inheritance. However, when the legislation on Batak Toba customary inheritance is included in the framework of affirmative legislation, the situation becomes complicated. The principles of positive law that respect women's inheritance rights, especially those related to inheritance of movable property, conflict with the Batak Toba customary law system which automatically inherits property to sons from the paternal line. Positive law attempts to take this understanding into account, but there are still potential problems due to the fundamental differences between the two legal systems that must be resolved.

The legal system in Indonesia is plural in nature of the existence of customary law, Islamic law, and laws in Western traditions. The customary law system seems to be dominantly used by rural communities in solving private problems, such as the distribution of inheritance. Considering Indonesia has a Muslim majority population, this article discusses the inheritance distribution system in rural communities from the perspective of Islamic law. The research location is Tinombala Village in Parigi Mautong Regency. This study uses qualitative methods with three data collection techniques: observation, interviews, and documentation. Primary and secondary data were analyzed using data reduction, presentation, and verification methods. The results of this study indicate that the distribution of inheritance carried out by the villagers is determined based on customary law, even though the majority of the population is Muslim. Based on local customary law, the assets left by the deceased parents are distributed only to the children who died. The last child often gets the most share. Such practice is not following the principle of inheritance distribution in Islamic law.

The State of Indonesia is a legal state which, of course, has a different legal system from other countries, where the difference in the legal system of the Indonesian state is this Indonesian state applies several existing legal systems, including applying some of the characteristics of the legal system of continental Europe, Anglo Saxon, and also the Islamic Law System. The primary basis in the formation of law in the state of Indonesia is Pancasila, besides that this Pancasila, which is also the ideology of the Indonesian state, is also used as a reference in the legal system in the State of Indonesia, with the existence of Pancasila all differences in customs, ethnicity, race, religion, and culture can be united to can accommodate all the legal interests of the Indonesian people, of course, the legal system used in this State of Indonesia is a legal system based on Pancasila as the state ideology. The legal system in Indonesia recognizes the existence of customary law and Islamic law because this Indonesian state has many customary law communities, and the majority of the population is Muslim, so that with this, the state legal system based on Pancasila, of course, also includes law. Customary law and Islamic law in the legal system in Indonesia. In the context of developing law in Indonesia, of course, also proclaiming the values of Pancasila, the implementation of the fourth principle of Pancasila, namely law-making is carried out through democracy led by wisdom in representative deliberation, and in the context of law enforcement in Indonesia, of course, must also prioritize values. Social justice. Keywords: Legal System, Pancasila, State of Law.

In adopting legal pluralism, the South Sudanese legal system has witnessed severe gaps and challenges in the application of both customary and statutory laws. The disparity between customary law-legal practices and formal legal provisions is glaring and the plurality has had a sad effect on the efficiency of the law to meet its basic purpose – justice dispensation. The application of customary law in the traditional courts and the application of statutory law in the formal courts is a parallel process, which has inadvertently left two competing versions of justice, with that sought from customary courts repressing the rights of litigants almost constantly. The duality of laws has converged to constantly challenge the legitimacy of both systems. While the state has remained the gravity of reforming the confusion, a classical theme of conflicting positions remains visible, especially with regards to subject matter jurisdiction. The duality of the two legal systems remains unresolved and efforts to harmonize the system are still in their formative stages and have hardly improved the functionality of each system. The confusion of the two legal systems might be traced back to the start of the second civil war (1983-2005), but most importantly, the side by side existence has been extremely troubled, and always pitting the statutory courts against the customary justice. Reformers have supported both customary and the formal legal systems, however the newly adopted common law and the customary law systems are at a very nascent stage, requiring much more support. While initiatives such as the developing a customary law strategy in 2009, customary law conferences, rule of law forums and the recent ascertainment conducted by the United Nations Development Programme (UNDP) have been implemented for over a decade, there has been minimal results and the current legal system still requires support in order for South Sudan to arrive at a more acceptable and highly functional legal system. Should legal pluralism continue to be the desired legal system, then workable approaches of disentangling the duality must be explored.

Öz Araştırma konusu edindiğimiz bu makalede, özetle Milattan öncesine kadar uzanan tarihî geçmişe sahip olan Kırgız halkının, kırsal bölgelerde ikâmet etmelerinden ötürü zamanla oluşturdukları örfî hukuk sisteminin, daha doğrusu 17.-19. asırlara gelindiğinde taknin ve tedvin çalışmaları ile başlattıkları girişimlerinin sonucunda meydana gelen “Erece-6” örfî hukuk kodifikasyon denemesi ile İslam hukuku mukayese edilmiştir. Giriş kısmında Kırgız halkının kısaca tarihine değindikten sonra, özellikle 1212 senesinden sonra bölgede hüküm süren Cengiz Han ve 1865 senesinden sonra da işgalci Çarlık Rusya politikasından ötürü, Kırgızların askerî cihetten önemli olan kırsal ve dağlık bölgelere çekilmeleri, bu çekilişle beraber 8. asırdan 18. asırlara kadar teşekkül eden örfî hukuk ile ilgili teâmülleri, bu örf-adetlerin oluşmasına etki eden faktörler, örfî hukuk sisteminin gündelik hayattaki yeri gibi konular ele alınmıştır. Sonrasında, Kırgız halkının hukuk algısı ve buna bağlı olarak, kendilerinin göçebe hayat şartlarına göre tesis ettikleri yargı sistemi, bu yargı sisteminin yapısı ve işleyişi, bu sistemde yer alan mahkeme organları, onların tayini, azli, maaşı, yargı sistemindeki hüküm çıkartma mekanizmi, mahkemelerde görülen konular işlenmiştir. Ardından, her toplumun düzeninin sağlanması için kaçınılmaz olan, yazılı olmayan ve kanun anlamı ifade eden örf-adetler esasında, hukuk kodifikasyonu denemesi olarak mezkur örf-adetlerin yazılara dökülmesi, “Erece” adı verilen bu maddelerin kendi içinde kategorize edilişi, maddeler arası açıklamalar ve yorumlama işlemi gibi konular araştırılmıştır. Ayrıca, Kırgız halkının başında bulunan ve yargı yetkisine sahip olan biy ve manapların, yukarıda adı geçen maddeleri zamanın ve mekanın değişkenliği ve hukuk felsefesi gereği olarak, bazen bir araya geldikleri kurultaylarda değiştirebilmeleri ve bunun sebepleri incelemeye çalışılmıştır. En son olarak, 1907 senesinde günümüz Kırgızistan’ının Karakol (Prejevalskiy) şehrinde kabul edilen “Erece-6” hukuk kodifikasyonu denemesi, hukuksal anlamda ne tür karaktere sahip olduğu ve önemi üzerine durulmuş, Kırgız toplumundaki örf-adetlerin örfî hukuk karakterine bürünmesi, bu aşamada kanun hâmîleri olan biy ve manapların İslam hukukuna riayeti ölçüsü gibi konular, detaylı bir şekilde ele alınmıştır. Özet şeklinde dahi olsa, bu anlamda “Erece-6” hukuk tasarısında yer alan kırk maddenin her birinin İslam hukukundaki yeri tespit edilmeye çalışılmış, bütün hukuk dallarını içeren bu maddelerin hukuksal anlamda, yerine göre İslam hukukundan daha sağlam bir sisteme sahip olduğu müşahede edilmiştir. Bu maddelerden hareketle, Kırgızların Müslüman olmalarına rağmen mezkur maddelerde bazen İslam hukukunun genel prensiplerinin dışına çıktıkları, hatta insan merkezli çalışan bir örfî hukuk sistemini ön planda tuttukları gözlemlenmiştir. Kısaca, makalemizde Türk hukuk tarihinde önemli anlam ifade eden Türk boylarının örfî ve şerî hukuk anlayışının bir arada mezcedilmesi, hayatın her alnında bu ikili hukuk sisteminin birlikte tatbik edilebilmesi konusunda, bu alandaki boşluğu dolduracak önemli bulgu ve kurgular elde edilmiştir. Anahtar Kelimeler: İslam Hukuku, Kırgız, Erece, Örfî Hukuk, Tarih.

This thesis concerns Sierra Leone Family Law. The law is examined from the viewpoint of the pluralistic system - general, Islamic and customary laws - applicable in the country. The thesis is divided into three Parts. This being a pioneering work, it is necessary to give first an explanatory outline of the country and its legal system and how family law works within that system. Part One, which contains four chapters, is devoted to this preliminary explanation. The Second Part deals with non-customary family law, It is mainly an analysis of the general law and Islamic law, but it also considers specific areas in family law in which there are conflicts in the pluralistic legal system. The highlights of this Part are: statutory marriage (Chapter 5); the essentials of a valid statutory marriage (Chapter 6); matrimonial relations (Chapters 7 and 8); matrimonial property (Chapter 9); matrimonial reliefs (Chapter 10); termination of marriage(Chapter 11); the parent-child relationship (Chapter 12); and succession to property under non-customary law (Chapter 13). Part Three discusses customary family law. The inform-at ion contained in this Part is derived partly from previous published and unpublished sources, and partly from the personal field investigations of the present writer. The method of exposition of the customary laws is by topics rather than by ethnic groups, though with each topic, ethnic/local variations are indicated where relevant. This Part begins with an introduction showing how the present writer collected his data on customary law. Chapter 14 examines the nature and character of customary-law marriage. Chapters 15 and 16 analyse the formation of a customary-law marriage and the essential requirements for such marriage respectively. The husband and wife/wives relationship in the compound/Polygamous family is dealt with in Chapter 17. Chapter 18 discusses the termination of a customary-law marriage. The parent-child relationship under customary law is examined in Chapter 19. Finally, Chapter 20, dealing with succession under customary law, concludes the thesis.