The Contestation of State, Religious, and Customary Laws on Child Marriage: A Legal Pluralism Perspective

The coexistence of Islamic law, customary law, and the national legal system within empirical societies remains an ongoing phenomenon. The consequences of such legal pluralism have implications for the protection of women and children. This study aims to examine the dynamics of legal relationships, the determination of diverse laws among the people of Aceh and West Nusa Tenggara, and the factors influencing the contestation of legal choices that impact legal favoritism towards women and children. This study employed a juridical empirical legal research method with a legal pluralism approach. Data were obtained by means of in-depth interview and document study. The interviews were conducted with customary leaders, religious leaders, and academics, whilst document analysis included journal articles, laws, and relevant books. The study took place in two locations: Aceh and West Nusa Tenggara Provinces. The findings of the study reveal that the dynamics of the relationship between customary law, religious law, and state law run concurrently in the context of the application of family law and criminal law. Some members of the community follow customary law and religious law, while others follow state law. The determination of law among the people of Aceh and Lombok is based on the legal consciousness of the community concerned. The choice of law in societal reality has an impact on favoritism towards women and children. The choice of state law tends to guarantee legal certainty and can provide legal protection for women and children. Conversely, the choice of religious law and customary law may sometimes be detrimental to women and children.

This paper aims to examine the juridical basis for the application of Acehnese customary law, the mediation mechanism of Aceh Tamiang customary law in resolving minor disputes. The study of this paper used empirical research methods, using the theory of legal pluralism. Data were collected by means of in-depth interview and document study. Interviews were conducted with customary stakeholders, while the documents analysed were news of peace events in Aceh Tamiang. The findings reveal that the juridical basis for resolving minor disputes is based on the Law, the Qanun, and the Joint Decree between the Governor, the Aceh Regional Police Chief, and the Chair of the Aceh Customary Council (Majelis Adat Aceh). In Aceh Tamiang, the customary law mediation mechanism in gampong (village) and mukim (township) customary justice is generally carried out by reporting, requiring the presence of the parties to the dispute as well as the witnesses, and being open to the public. However, exception occurs for special disputes, in which according to custom and propriety must not be open to the public, and there is no charge whatsoever. Among the minor disputes that have been successfully resolved through gampong customary courts are domestic violence, inheritance disputes, land ownership, the construction of Telkomsel towers, and traffic accidents. The resolution of minor disputes in Aceh Tamiang from the perspective of legal pluralism has been carried out harmoniously and correlates between state law, customary law, and Islamic law. State law provides an opportunity for customary law to resolve minor disputes, and if it is not successful, then state law will take over. Further, dispute resolution in customary law is also in accordance with the values of Islamic law, which also prioritizes peace or al-sulh. This corresponds to the Acehnese proverb that states “adat ngen hukom lage zat ngen sifeut” which means the relationship between customary law and Islamic law is like a substance with its inseparable properties.

<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>

Background: The legal exception in the study of legal pluralism revealed in this article is not in the context of procedural law. This study highlighted the use of “exception” term. Legal exception is defined as an exception or not included in one carriage of legal reasoning. Through the judge's court decision No. 089/Pdt.G/2010/PA.GM on the Application for Polygyny Permit. Purpose: This paper aimed to explore and analyze the legal exceptions on plurality legal context of Indonesia related to the issue of hypersexuality and gender justice in polygyny case of Sasaknese Muslim Mariage in Lombok West Nusa Tenggara. Methods: A qualitative normative approach is employed; departing from the legal facts spesifically in Giri Menang Religious Court, the analysis and discussion applyed in this paper are the reasoning, paradigm, approach, and flow of socio-legal studies in law and society issue. Results: The findings indicated that the partiality of the judge's reasoning by ignoring the term legal exception in the context of legal pluralism. The judge's decision on the polygamy permit was not based on real legal rationality, but due to the applicant experienced by hyper sexuality. The odd thing of judge's reasoning only considers State Law and Religion, and ignores the Customary Law of Sasak marriage. While the Indonesian marriage law, there is no law that permits a husband to engage in polygamy based on the hypersexuality or other suffers deseases of husband. However, the law allows a husband to be polygamous on the basis of an incurable disease of the wife. Implication: The serious implication of this study espoused the distortion of the existence of customary law due to the strongest hegemony of state and religious law. Therefore various further studies are needed to reveal the relevance of customary law to positive law in Indonesia. Originality: The novelty presented in this article are the response of religious court judges to the existence of legal plurality in Indonesia, namely State Law, Religious Law, and Customary Law. The court decision emphasized that judges obey only for state and religious law, and ignored for the customary law. Even though the legal plurality of Indonesian society is directly protected by the constitution

Indonesia recognizes several legal systems i.e., state law, customary law, Islamic law, and international law. Islamic sharia in Aceh is part of legal pluralism in Indonesia. This study aims to discuss the application of Islamic sharia from the perspective of legal pluralism. This normative legal study employed a legal pluralism theory analysis. Legal pluralism is a theory that views law not only as positive or written law made by the state but also as a recognition of the legal reality that exists in a pluralistic society. The study collected data by means of a literature review. Findings revealed that Islamic sharia in Aceh as part of the recognition of the concept of legal pluralism has been implemented well in the context of state law, custom, and Islamic law. The state has provided juridical legitimacy through laws in the context of legal substance and judicial institutions or sharia courts. Likewise, revitalization has also occurred in traditional institutions in terms of customary law and customary justice. The argument emphasized in this study is that Islamic sharia in the context of legal pluralism has succeeded in manifesting legal harmonization between the state, custom, and Islamic law

Legal protection for customary land in Papua, particularly West Papua, is a crucial issue reflecting the tension between state law and customary law. The transfer of customary land from customary law communities to agencies or corporations is a dispute that must be faced and is inevitable when faced with realities such as the massive granting of environmental permits, as happened to the Auwyu tribe in Boven Digoel Regency, South Papua Province. Although state law as regulated in Article 18B paragraph (2) of the 1945 Constitution, the Basic Agrarian Law, and Law Number 21 of 2001 concerning Special Autonomy for Papua Province has recognized the existence and rights of customary law communities, its implementation has not fully provided a guarantee of effective protection when juxtaposed with state law that allows customary land management for parties other than customary law communities. This study aims to analyze the form of legal protection for customary land and evaluate the mechanism for resolving customary land disputes in Boven Digoel Regency, West Papua Province for the Auwyu tribe from the perspective of legal pluralism. This study uses a socio-legal approach with a normative basis in the applicable state law that regulates customary law communities, customary land, and customary land dispute resolution, combined with empirical data on the settlement of customary land disputes of the Auwyu tribe. The theory of legal pluralism is used as a conceptual and critical analysis tool to assess the legal problems in the study.

This article explores the position of customary law before state law and Catholic religious law regarding marriage in Mangggarai, Flores, Indonesia. This study applied a critical analytic approach. This study found that the legal position of Manggarai adat concerning marriage is weaker and tends to be marginalized. It happened because state law explicitly Law No. 1 of 1974 concerning Marriage merely accepting the legality of marriage based on religious law and not customary law. Meanwhile, religious law, in this case, Catholicism, does not provide space for customary law in matters of marital legality. As a result, many married couples who have been bound their marriage according to customary law experienced injustice as their marriage was considered illegitimate according to religious and state law. However, this research found many positive contributions of customary law to the process, legality, and integrity of marriage. Therefore, this study recommends that the Indonesian Marriage Law and Catholic Religious Law need to accommodate customary law in marriage, taking into account human rights and justice principles. Both laws need to be revised so that they can place local customary law in an equal position.

Purpose: Religious (Islamic), state and customary laws in Indonesia offer the same concept with different indicators. Islam offers the aspects of religion, descent, wealth, and beauty as elements to be considered. The state adds the aspect of age as a physical and psychological consideration for couples facing marriage. Customary law accommodates all of them by requiring the requirement of customary social strata in marriage. The praxis dialogue of the three laws above in Sasak tribal society is the object of study in this research. Theoretical Framework: Equality in marriage is a religious teaching, some of which is also constructed in local cultural values. The meeting of religious and cultural values sometimes does not go hand in hand, and gets resistance from the community. Conflict theory, social change, and Islamic methodology are used as basic theories. Method: The research used qualitative descriptive-analytical method, by observing the words, actions, and feelings of the informants in the research. Documentation and interviews were used to find the deepest things object of the research. Results: The study found that the equality required in the Sasak traditional marriage system aims to maintain descendants well and intact. However, the social strata requirements imposed in Sasak society have an impact on injustice on the female side and ignore the value of equality between humans. Marriage with mandatory equal conditions in social strata is widely ignored and resisted by the community. Social changes that cover the education system, economy, politics, communication, culture, technology, and other elements of novelty are a trigger for dialogue and resistance to the mandatory requirement of equality in social strata in Sasak traditional marriage. Religion and the state safeguard the legal needs of the community based on equality, justice and partiality. Conclusions: In principle, both religious law (Islam), customary law and state law aims to protect citizens and help them to achieve the goals of marriage. However, the meeting of the local values of a particular culture with the universal values of religion and the state is often not in harmony. Local culture values are still restrained by the old culture (feudalism), while religious and state laws tend to be open. With the opening of access to education, the mindset of the community has changed, which is also in line with the accelerated development program in Lombok.

This research aims to determine and analyze the relationship between state law and customary law regarding the rights of customary law communities to natural resources. The application of state law and customary law is a fact related to the lives of customary law communities and their areas of life which are inseparable from natural resources. Apart from constitutional recognition as stipulated in 18 B paragraph (2) of the 1945 Constitution of the Republic of Indonesia, various laws and regulations in the natural resources sector also provide space for regulation of customary law communities based on policies that tend to be centralized. The research method used is normative legal research with statutory, conceptual and factual approaches with qualitative prescriptive analysis. The research results found that customary law as a guideline for managing natural resources by customary law communities does not yet fully exist because the recognition of customary law communities is partial. In the perspective of John Griffith’s theory of legal pluralism, the relationship between state law and customary law is categorized as weak legal pluralism because of the dominant right to control the state through state law. Integration of coexistence between customary law and state law can only be realized if there is a law that specifically regulates customary law communities so that it is no longer determined based on the sectoral ego of various laws that regulate natural resources.

Although numerous studies have examined the practice of child marriage in Indonesia, few have analyzed this phenomenon from the perspective of legal pluralism, which encompasses state law, customary law, and religious law. This study aims to analyze child marriage within the context of legal pluralism in Indonesia, focusing on the coexistence of state, customary, and religious norms regulating marriage and their influence on child protection policies. The study employs a qualitative approach with a literature review design and thematic analysis to achieve this objective, integrating the theories of maslahah mursalah, social control, and legal pluralism. Through this analysis, the study explores how legal regulations governing the minimum age of marriage often conflict with prevailing social and religious norms, and how practices such as unregistered marriage (nikah sirri) and marriage dispensations continue despite formal regulations. The findings suggest that, although legal frameworks exist, their implementation is still constrained by strong social and cultural norms. Therefore, a holistic policy approach is required, involving social education and community empowerment to reshape perceptions of child marriage and strengthen law enforcement. This study contributes to the understanding of legal pluralism in child marriage and provides recommendations for more effective and contextually appropriate child protection policies. Keywords: Islamic Law, Minimum Marriage Age, Plural Legal System

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.

This paper introduces this Special Number. The work of the Project Group Legal Pluralism at the Max Planck Institute for Social Anthropology in Halle aims to continue the rapid expansion of recent decades of studies of legal pluralism. The recently much discussed phenomenon of globalisation has provoked a wide variety of local responses. Encounters are occurring between state laws, transnational laws, customary laws and religious laws, all of which are liable as a result to be transformed by processes of adaptation, appropriation and vulgarisation. This may lead to increasing pluralisation of laws, but can also in some cases produce homogenisation, or de-pluralisation.The notion of ‘law’ should not be limited to state, international and transnational law, but should be used to refer to all those objectified cognitive and normative conceptions for which validity for a certain social formation is authoritatively asserted. Law becomes manifest in many forms, and is comprised of a variety of social phenomena. Constellations of legal pluralism may include legal systems, unnamed laws and religious laws. Within such a constellation elements of one legal order may change in various ways under the influence of another. Co-existing bodies of law may cover different geographical and political spaces, and longer temporal periods than are formally acknowledged. Inter-system demarcations also vary in complex ways in their form and in the uses to which social actors put them. Legal orders (and not only state laws) recognise or do not recognise other orders in varying ways, these constructions having potentially some influence on social actors, the nature and extent of which are empirical questions in each case.The emergence, maintenance and change of constellations of legal pluralism are thus the result of dynamic processes. Such processes are examined in this volume, and the following papers contain illustrations of all these issues.

This study aims to discuss the legal culture of inheritance distribution in a Sasak community in Jerowaru Village, Lombok by reveal the interaction of customary law and Islamic law used in distributing inheritance. This study is a qualitative descriptive which considers normative legal research and empirical legal research, as well as Islamic law anthropology and legal pluralism perspective. Qualitative data was collected by conducting in depth interviews with religious leaders, traditional leaders and community members. Number three: Sasak community has a pattern of heritage distribution (inheritance distribution) in the form of "Sak Mame Belembah Sak Nine Bereson" sons get more than daughters. It illustrates the give and take of customary law with its emphasis on social equilibrium and family responsibility, together with Islamic legal practices tailored to local realities. The analysis by Griffiths and Hooker in legal pluralism theory, as well as from Clifford Geertz and John Bowen in Islamic legal anthropology, shows that the law in the Sasak community has appeared not static law but dynamic law, which is responsive against social change. Inheritance law integrates customary law, and Islamic law eventually produces an inheritance legal system that is broad and flexibly ensures substantive and distributive justice; one way is to amalgamate cultural values and religious needs embraced by the society. To its academic contribution, this research is an answer revealing how complex the legal dynamics are in a plural societies context, and there is a new way of looking to create Islamic Law in line with Consuetudo Law to build a legal system that is fair and responsive by referring to local wisdom.

Problem statement: The increase in cases of child marriage in Indonesia has generated systemic issues from both social and economic perspectives, as well as concerning the fulfilment of children's rights. Various legal instruments have been established to prevent child marriage, including the elevation of the minimum marriage age for both men and women as stipulated in Law No. 16 of 2019, which amends Law No. 1 of 1974 concerning Marriage, alongside the enactment of the Child Protection Law and various derivative regulations. Objective: This study aims to elucidate the tension between state law, the interpretation of religious texts, and the socio-empirical practices surrounding child marriage in Indonesia, while also seeking to identify strategies to reduce child marriage rates in the country. Methods: This research employs a descriptive approach, conducting a case study in Jepara, Central Java, using qualitative data collection methods, which are analysed through the iceberg analysis model and U Theory, alongside a sociological normative framework. Results: The findings of this research are as follows: first, various policies aimed at reducing the child marriage rate in Indonesia, implemented through state laws and regulations, have proven insufficiently effective, as they have not been accompanied by strategic, implementable, cross-sectoral, and sectoral policies and programmes. Second, religious texts pertaining to the minimum marriage age are not explicitly defined within Islamic law, leading to diverse interpretations; these texts tend to be understood in a textual rather than contextual manner. The tension among the three legal axes (positive law, religious law, and customary law) has contributed to the perception among certain members of the public, religious leaders, and government officials that child marriage retains a degree of legitimacy within Islamic law. Conclusion: Strategies to reduce child marriage in Indonesia must be developed in a comprehensive, integrative, collaborative, and cross-sectoral manner, involving all stakeholders, including the executive, legislature, judiciary, youth groups, parents, religious leaders, community leaders, teachers, and educational institutions.

Customary Law and the Nationalist Project in Spain and Peru