Gender Justice, Customary Law and the Uniform Civil Code in Arunachal Pradesh

The constitutional tenet of equality is firmly etched not only in the Preamble but also in the Equality Code (Arts. 14 – 18) of Part III of the Constitution. Even after seven decades of the Constitution coming into force, our Republic is far from achieving it. In particular, India lags behind in gender justice. India was placed in the 112th place out of 153 countries by the World Economic Forum in the Global Gender Gap Report 2020, four ranks below her 2018 position. While the Index only measures economic participation, educational attainment, health and survival, and political empowerment, a factor that has major impact on the enjoyment of all other rights by women is equal civil rights. In India, the right to marry, divorce, adopt, inherent property, and other ancillary rights are vastly determined by personal laws and thereby are inherently arbitrary. Efforts on part of the judiciary to streamline these laws on the lines of equality and non-discrimination have been few and fleeting. In several situations, the Courts have adopted the “bull in china shop” attitude. Even in situations where the courts have intervened, legislative overturn has grossly affected gender justice in India. The Uniform Civil Code is a legal pursuit that is unique to the diverse and multicultural nation that India is. The talk about implementing the Uniform Civil Code, which is a Directive Principle of State Policy enshrined in Art. 44 of the Constitution of India, has often made circles in both the legal as well as the political corridor. Today, we are closer to the goal than ever before. The India socio-legal scene is past the debate on whether the Uniform Civil Code is desirable. The true question before jurists, law-makers, and lawyers alike is what should form a part of the Code so enacted. The author contents that the Code is the way forward to ensuring gender justice in the context of family law not only for women, but also for gender minorities. While the enactment of the Code alone cannot ensure the attainment of gender justice, without it, no gender equity is attainable. To this end, the paper analyses some of the gross arbitrary provisions in personal laws to highlight the need for uniform civil code. The paper will go on to establish how Uniform Civil Code could act as an instrument of gender justice by bringing into life provisions for marriage, divorce, succession, inheritance, adoption, amongst others that apply to all irrespective of religion and without distinction of gender.

This research aims to analyze the legal impact of unregistered marriages in relation to the ownership of joint property, as well as consider the pretexts of customary and religious law that are often used to justify the practice. Using the normative juridical research method, this study examines legal theories, legal principles, and legislation related to marriage and property division in Islamic law and state law. The results show that the pretext of customary and religious law in unregistered marriages creates legal complexity, both in customary law and in state law. To regulate marriage registration, the ijtihad insya'i approach can be applied with the principle of “rejecting harm takes precedence over bringing good.” This approach requires the support of Indonesian Muslim scholars and thinkers to raise public awareness about the importance of marriage registration in the civil aspect and ownership of joint property. In addition, although in customary law joint property is often divided equally, in practice judges may consider the principle of justice based on the facts at trial. Therefore, education by state authorities and ulama is necessary to raise legal awareness in the community towards marriage registration.

In Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India, Gopika Solanki provides a convincing defence of the Indian policy of legal pluralism for governing marriage and divorce among Hindus and Muslims. The author contends that, by ‘‘split[ing] its adjudicative authority with social actors and organizations in the regulation of marriage and divorce among a sector of religious and caste group and the other actors’’ (p. 10), the Indian state simultaneously avoids leaning towards legal centralism and an essentialist version of legal pluralism. Solanki supports this claim with reference to state laws, societal laws, legal actors, and their interactions in formal and informal legal arenas. This ethnographically rich text begins by describing and explaining, a model of ‘shared adjudication’ (p. 10). The author contends that this model is unique to India. Founded on values of both state and customary law, this model focuses on state-society interactions and their relation to resolving conflicts in family, marriage and divorce. Although the state ‘‘does not relinquish its authority to govern the family’’ (p. 11), it shares the adjudicative authority with societal actors and institutions in order to avoid legal centralism. Similarly, even though the state recognizes both religious and customary laws—and provides an option to its citizen to opt out of religious laws—it avoids complete legal pluralism by expressively not establishing religious and customary courts and by enacting secular law to govern interreligious marriages. In Chapter 2, Solanki explains, how the dual functions of the shared adjudication model overcomes the classic state versus society/legal versus illegal dualism by opening up the possibility to make, unmake, or reform the fixed construction of religious memberships in diverse legal sites.

Customary law in Indonesia is recognized by the state, even though it is unwritten, and it develops from community customs governed by norms passed down through generations. This is stipulated in Articles 18B and 28I of the 1945 Constitution. Customary criminal law regulates offenses with sanctions such as fines, expulsion, or other punishments, as seen in the Minangkabau customary law related to criminal acts such as adultery. The resolution of customary criminal cases is carried out through deliberation and supervision by customary leaders. In Minangkabau, customary criminal law is known as "Undang-Undang Nan Salapan" (material law) and "Undang-Undang Nan Duo Puluah" (procedural law). In Nagari Koto Tinggi, although subject to national law, Minangkabau customary criminal law is still enforced. The issues raised are: 1) what types of customary violations have been sanctioned against adulterers in Nagari Koto Tinggi based on the Customary Law of Salingka Nagari? 2) What is the procedure for resolving customary criminal cases and the imposition of sanctions on customary law offenders in Nagari Koto Tinggi? and 3) What are the challenges and efforts to overcome obstacles in the implementation of Minangkabau customary sanctions in Nagari Koto Tinggi? This empirical legal research collects data from interviews and direct observation. In Nagari Koto Tinggi, customary violations are resolved by the Customary Peace Council through stages of "cemo," "tuduh," and the imposition of sanctions such as fines or expulsion. The dispute resolution emphasizes consensus and aims to restore social balance. Despite challenges in adapting customary law to modern developments, collaboration between customary institutions and the government, as well as the adjustment of cultural values, is key to the sustainability of customary law in the future. Keywords : General Meeting of Shareholders, Limited Liability Company, Notary

This research discusses customary sanctions against perpetrators of criminal acts of adultery in Tangkit Village, Sungai Gelam District, Muaro Jambi Regency. The formulation of the problem of this research is how the existence of customary sanctions in the criminal act of adultery through customary law in Tangkit Village, Sungai Gelam Subdistrict, Muaro Jambi Regency, what are the obstacles faced in resolving the criminal act of adultery through customary law in Tangkit Village, Sungai Gelam Subdistrict, Muaro Jambi Regency and what efforts are made to overcome the obstacles to the criminal act of adultery through customary law in Tangkit Village, Sungai Gelam Subdistrict, Muaro Jambi Regency. To analyse these problems, the approach used in research on customary sanctions against perpetrators of adultery in Tangkit Village, Sungai Gelam District, Muaro Jambi Regency as one of the sources of law is empirical, namely an approach to the problem studied by looking at the provisions contained in the applicable laws and regulations and then whether the regulations are applied properly or not in the implementation of law enforcement. To examine the three existing problems, the theory of criminal sanctions is used. The results of this study indicate that the form of settlement of adultery cases in Tangkit Village, Sungai Gelam Subdistrict, Muaro Jambi Regency is carried out in a way, namely: expulsion from the village / village but previously a village wash was held first, namely giving one buffalo, 100 bushels of rice, 50 coconuts and selemak semanis. Then the perpetrator apologised for his actions and signed the peace agreement on a stamp duty of RP. 6,000.00 (Surat Setih) in 8 (eight) copies to be forwarded to the Regent, local police, sub-district head, village head, customary chief, relatives and the person concerned. The customary decision must be implemented by the perpetrator with a maximum grace period of 3 months to implement it. When the sanctions have been imposed by the customary institution for adultery, but the perpetrator is unable to fulfil them, the customary institution obliges the extended family of each party to participate in the customary settlement. Problems encountered in the settlement of adultery cases in Tangkit Village, Sungai Gelam Sub-District, Muaro Jambi Regency, namely: There is a difference of opinion between the enforcement of customary punishment between the youth and the tengganai elders and adultery cases that are resolved by national criminal law, the legal process takes a long time and is expensive, causing a lot of suffering to the perpetrator. Efforts to overcome the problems that occurred included a personal approach from the youth and tengganai elders to continue to apply customary criminal law as the original law of the Indonesian people, by means of all parties deliberating in a traditional meeting to weigh the advantages and disadvantages of national criminal law and customary criminal law and finally in a traditional meeting decided to use customary criminal law in resolving this adultery case because the legal process was not long and the costs were also affordable and the approach of the customary institution of Tangkit Village, Sungai Gelam District, Muaro Jambi Regency. to the community to provide socialisation and education on the basis of Jambi Customary Law, namely Induk Undan Nan Lima, Pucuk undang nan eight and Anak undang nan twelve so that people know that customary criminal law still exists, applies, and has permanent legal force. The suggestion is that the Muaro Jambi Regency Government should provide and require every community to attend religious activities such as recitation and regular lectures so that the piety and faith of the community is strengthened rather than lust alone in order to avoid deviant behaviour and the customary institutions of Muaro Jambi Regency should be able to provide socialisation and counseling on the basis of Jambi Customary Law, namely Induk Undang Nan Lima, Pucuk undang nan eight and Anak undang nan twelve that customary criminal law can resolve adultery cases quickly, the legal process is not long, and the costs are affordable.

Indonesia has various ethnics, races, religions, and customs and traditions spreading in the regions. Many ethnics in Indonesia have customary laws and enforce them towards the people committing criminals and the customary laws. As the criminal law code (KUHP) practicing the legality doctrine, which says that no action is punishable unless the existing criminal act is underway. Thus, in practice the written criminal act is applied instead of the customary law. However,in 2007 the bill of the Criminal Law Code adopted the contrary so that it triggered the debates. This research studies the relevance the Dayak customary criminal law in West Kalimantan to the national criminal law. The qualitative method used is based on documentationand field study through lnterviews with the concerned public officials and prominent figures of the Dayak society as a means of the data collection. This research found that there has been both written and unwritten customary criminal law. So has the Dayak customary criminal law in West Kalimantan. Some ethnics practice unwritten customary criminal law and some other can codify their customary law as we can see at the Kayaan Medalaam. The customary law is practiced by a customary institution while the unwritten one is by its society based on consensus and handed down hereditarily.

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.

This article presents an empirical study of Jewish and Muslim women who go through divorce in Canada, drawing on a ‘left law and economics’ methodology. Religious law and family law have long been considered outside the market and, as a result, are more rarely accounted for in the law and economics literature. According to dominant narratives, religious family law is experienced by women either as an exceptional form of oppression or as a form of spiritual religious identity. In this article, I apply a ‘left law and economics’ approach to deconstruct these notions. On the basis of my socio-legal fieldwork with Jewish and Muslim women in three Canadian cities, I identify the background formal and informal legal rules, social norms and distributional practices that help produce asymmetric bargaining locations for women. I employ the economic language of costs/benefits to illustrate the ways in which religious parties bargain strategically upon divorce, although these market claims are surprisingly underrecognised by the legal system. Such empirical knowledge helps disenchant the idea that religious law is systematically used as punishing forces that make women worse off economically or morally inferior. It also allows for a distributive analysis which reveals how husbands and wives negotiate economic resources, desires and day-to-day decisions in all kinds of fair and unfair ways, flying in the face of conventional narratives surrounding women and religion.

Widows, AIDs, Health and Human Rights in Africa: Case Study from Tanzania

With the aim of unifying the myriad personal laws prevalent in India, efforts are being made both at central as well as state levels to implement a Uniform Civil Code. However, this poses a complex challenge when juxtaposed with the tribal customary laws in vogue in the North-Eastern States of India. Several tribes residing in these states have their diverse and distinct customs and traditions that govern several facets of their lives and as such comprise a unique case for consideration. Customary laws in the North-Eastern States significantly differ from the mainstream religion-based personal laws prevalent in the rest of the country. Thus, the Uniform Civil Code’s objective to implement the same set of laws across the country and communities could have a significant impact on the preservation of these indigenous legal systems that are considered integral to the identity and autonomy of tribal communities. In this background, this article attempts to shed light on the nuanced interplay between the Universal Civil Code and the customary laws of tribal communities prevalent in North-East India. Through the analysis of constitutional and legislative provisions, judicial decisions, and socio-political dynamics, the article seeks to analyse the inherent complexities in reconciling national uniformity with regional diversity.

This paper comprehensively examines the system of customary law (hukum adat) in Indonesia and the influence of religion on the formation, development, and implementation of the national legal system. Customary law, as the indigenous legal system of the Indonesian people, has existed long before the arrival of colonial influences and major world religions such as Hinduism, Buddhism, and Islam. Historically, hukum adat not only served as a social guideline but also as a reflection of the nation’s moral, spiritual, and cultural values. Its evolution has undergone significant transformations—from the Hindu–Buddhist kingdoms that marked the early integration of religious and customary norms, to the Islamic kingdoms that produced a syncretic blend of syariah and customary law, and finally, to the Dutch colonial period which institutionalized legal pluralism through the Western legal system. Following Indonesia’s independence, a major challenge arose in unifying the various legal systems into a coherent national legal framework grounded in the values of Pancasila and the 1945 Constitution. Religion, as a source of ethical and moral principles, has exerted a profound influence on the substance and philosophy of Indonesian law. Islamic law, for instance, has significantly shaped family law, civil law, and Islamic economic law, while other religions have also contributed to the moral and philosophical dimensions of national law. In the modern era, globalization and legal modernization pose new challenges to maintaining the relevance of both customary and religious law amidst demands for universal justice and efficiency. This study aims to analyze the historical roots, interrelations, and harmonization potential between customary law, religious law, and the national legal system. Using a historical-philosophical and normative approach, it seeks to formulate an ideal concept for developing a national legal system that remains rooted in Indonesia’s cultural identity. The findings indicate that the integration of customary and religious law into the national legal framework is not merely a juridical process but also a cultural and philosophical one. Therefore, the construction of national law must always be grounded in spirituality, local wisdom, and social justice as embodied in Pancasila as the ultimate source of all Indonesian law

This article examines the concept of the Uniform Civil Code (UCC) in India and its potential to promote gender justice within the country's diverse legal landscape. India, a nation characterized by its rich cultural and religious diversity, currently follows distinct personal laws for different religious communities, which often perpetuate gender inequalities. The article critically analyzes the UCC as a means to standardize civil laws pertaining to marriage, divorce, inheritance, and adoption, among others in order to guarantee equality of rights and opportunities to all citizens, whatever their religious affiliation. It stresses the need for a comprehensive and inclusive dialogue between the various stakeholders in order to ensure a uniform Civil Code. The principles of gender equality and social justice are reflected in UCC while also valuing India's peculiar and diverse cultural outfit. The article also explores the potential benefits of implementing a UCC in India, such as eradicating discriminatory practices against women and providing them with equal rights in various spheres of life. Additionally, it examines the challenges and apprehensions associated with the implementation of a UCC, including concerns about cultural preservation, religious freedom, and political resistance

The role of law in the constitution of modern state power becomes especially significant, as both the institutions of the state and the law(s) it enforces were certainly developed in a dialectical and unequal relationship with outside powers. India's personal laws functioned as a guide for British colonies in Africa and elsewhere. Most personal law systems today are an amalgam of three types of laws: (a) customary laws; (b) some imported Western laws and accumulated case-law; and (c) religious laws. Interference in the personal laws referred to the reform, codification, or unification of the personal laws. This book explores four main periods in the development of Indian government policy on the personal laws. The 2004 election manifestos of neither the Bharatiya Janata Party-National Democratic Alliance coalition nor the Congress Party explicitly mentioned the personal laws or a uniform civil code.

<p><em>This article departs from the interlegality of marriage laws in Jambi society today, which discusses sumbong marriages. Sumbong marriage itself is a marriage that is legal according to religion, state, and custom. However, the ability to marry sumbong itself is considered valid by carrying out a customary settlement first, which was initially prohibited by customary law. The prohibition on marriage in Indonesia is contained in Article 8 of Law Number 1 of 1974 concerning Marriage and Article 39 of the Compilation of Islamic Law. Departing from this phenomenon, the author tries to examine the writing, which includes the implementation of marriage law in the Jambi community, the legal pluralism of the Jambi community, and the interlegality of customary, religious and state law in the marriage law of the Jambi community. The type of research carried out by the author is field research (Field Research) with qualitative methods. The nature of this research is analytical descriptive research. The approach used by the authors is a sociological empirical approach with interlegality. The author's findings clearly show that legal interactions in this tradition involve interactions between several laws, including religious, state, and customary laws used in sumbong marriage practices. By applying the legal interlegality theory approach, customary law, state law, and religious law become one unit. The concept of interlegality is found in adopting the values contained in the sumbong marriage tradition, whether based on state law, Islamic law, or Jambi customary law. This adoption process is based on the characteristics of the Jambi community's legal identity and its social environment, which is still steeped in customs, and the community also upholds the norms that apply in society and adheres firmly to "adat basandi syarak, syarak basandi kitabullah. "</em></p>