The Imprint of Colonialism: Western Influences on India's Criminal Justice Framework and the Decline of Indigenous Legal Customs

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.

Article 5 paragraph (1), Article 10 paragraph (1), and Article 50 paragraph (1) of Law 48 of 2009 on Judicial Power paved the way for the recognition of customary criminal law, in which the existence of the adapt community and adapt law is recognized and guaranteed by the constitution. However, since customary criminal law is based on the philosophy of harmony and cosmic balance within society, it would be difficult to find common ground regarding the principle of legality within the Criminal Code. This study aims to identify the influence of customary institution decisions in criminal case proceedings. This research uses a socio-legal methodology that has descriptive and analytical characteristics. This research uses qualitative interactional analysis. The results of this study indicate that, prior to the enactment of Prosecutors’ Regulations on Restorative Justice, the customary institution decision has cemented its existence as a source of law to decide criminal cases. The enactment of Prosecutors’ Regulations on Restorative Justice has shifted it into one of the reasons for the public prosecutor to consider dropping criminal charges based on restorative justice. The regulation will require the involvement of community leaders or representatives to terminate criminal proceedings.
 Keywords: customary institutions, customary law, criminal cases, restorative justice

Restorative justice is a movement with traction. People are excited by it. They are volunteering in growing numbers to make it happen. Some people are even getting paid to do it, especially in schools, and usually through nonprofits like Restorative Justice for Oakland Youth, Community Works, and the Insight Prison Project (all discussed in this issue). Marilyn Armour’s article (page 25) sums up the progress so far.Its practitioners say the movement’s innovative practices have immediate benefits and radical long-term potential.There is hope, first, that it will keep young people and especially young people of color out of the criminal justice system, out of the school-to-prison pipeline. Once that is well under way, many believe that other visions will appear possible, all the way to the end of prisons as we know them and a reconception of the entire legal system (see Peter Gabel’s piece on page 18). Many hope this movement can also provide new ways of responding both to conflicts in general (Kay Pranis, page 33) and to the inherited oppressive structures of race and class (see Fania Davis’s piece on page 30, Denise Breton’s on page 45).Restorative justice may be poised for a breakthrough into public awareness. It would be a boon for budget-cutting politicians and taxpayers if only the public could buy into it. For example, in the San Francisco Bay Area it costs around $50,000 to run a juvenile offender through the justice system, not counting the cost of incarceration if there is to be any, versus about $4,500 for a restorative process that typically leaves the victim much more satisfied, the young person reintegrated into the community without even being charged with a crime and much less likely to reoffend, and many community members relieved and grateful. Multiply the criminal justice cost many times for adults locked away for years.But the rub is, punishment is nowhere seen in this process—unless, when you have harmed someone, you consider listening to them express their pain to be punishment, rather than a chance to develop empathy for them, see yourself in a different light, and learn and change in whatever way you now perceive is needed. Some consider that process tougher even than receiving punishment. Others think it’s being “soft on crime.”Can a justice movement not based on punishment grow fast enough to win at the ballot box, even in an über-liberal city? In September the New York Times noted that “Restorative justice has long had proponents in some corners of the criminal justice system, but it is now gaining prominence in an unlikely forum: the San Francisco district attorney’s race.” We go to press too soon to know the result.Or will restorative justice appeal more to small-government and traditional-values conservatives? Some of its elements do appeal to the Right, others to reformist liberals, others to radicals, including prison abolitionists. Of course, there are also elements that each of these players may dislike or hate. And no one will resist it more than the prison-industrial complex and the politicians in its pockets.How it is presented by the media will be critical, but perhaps not decisive: it is how well it works in practice, in those places innovative enough to fund it, that will likely be decisive.Most articles in this issue come from progressive and radical activists, scholars, lawyers, and teachers who are writing wholly from within the restorative justice movement. We are centering their voices because it is they who have both the strongest hope for the transformative power of the movement and the most practical understanding of how the vision of restorative justice can take shape on the ground.While most restorative justice practitioners initially seem to present a unified front, there are certainly differences among them if you listen more closely. Some authors in this issue raise controversial issues within the movement directly, others by inference only. If they criticize anyone, notice how gently they do so. The movement has only got where it has by its practitioners’ commitment to reach out to the humanity in the other, to listen, to suggest and not to judge. A South Asian Buddhist goes to a conservative Florida town to support white Christians in developing a groundbreaking restorative approach to plea bargaining in a murder case (page 22). A survivor of child abuse works with prisoners in San Quentin prison, most of them serving life sentences for violent crimes (page 35). These practitioners could not do their groundbreaking work if they allowed either left-wing or right-wing stereotypes of prosecutors, conservative Christians, or lifers to cloud their vision. That doesn’t mean that restorative practitioners are blind to the realities of power and white supremacy, the legacies of genocide and slavery, the depredations of profiteers, or the violence inherent in the structure of our prison system. But their whole practice is to reach across any divide and connect, empathically.I am writing this article from a slightly different place, as a kind of sympathetic cartographer of the movement. I have felt drawn to restorative justice since first writing about it in Tikkun (September/October 2009) and have started to attend trainings in the field. So with one foot planted inside the restorative justice movement as a student and the other in more journalistic territory, I am hoping to offer a different perspective: a beginner’s bird’s-eye glance at some of the controversial issues both outside and within the movement, and at factors that may be enabling it to gather traction. I am offering this analysis not in a spirit of divisiveness but with the genuine hope that it will help readers who have never heard of the restorative justice movement to grasp the diversity of worldviews within it and understand where opposition and support are likely to arise. It is important for those within the movement to understand ways in which restorative justice is seen by individuals and groups from different places on the political spectrum, from conservative to moderate, and liberal to radical.Once restorative justice becomes a well-known policy option, I assume that small-government conservatives will welcome the budget savings and tax relief, provided they can be convinced that diversions from prison are not dangerous to society. The remarkable experience of New Zealand, which for over twenty years has run its entire juvenile justice system on restorative principles, and has closed its juvenile detention centers, should reassure them. As this experience is not well known in the United States, we are delighted to share an excellent survey of it by one its leading proponents, Judge Fred McElrea, as an online-only article accompanying this print issue.Many social conservatives, especially of a traditional Christian bent, already warm to the notion of bringing offenders to a point of remorse and genuine accountability, and then to redemption, a true change of heart. Chuck Colson, one of the players in the Watergate scandal (long since reformed as a born-again Christian), is considered by many to be America’s leading prison reformer as well as one of its leading Christian conservatives. Excoriating overcrowding and inhuman conditions, Colson signs on to a faith-based strand of restorative justice.However, the centrality of religious conversion to Colson’s version of restorative justice presents a concern for the mainstream movement. Further, conservative philosophy typically blames the individual’s sinful human nature rather than environmental factors in generating crime. Mainstream restorative justice operates from a different model. It is based neither on a medical model of the pathology of the offender, nor on a Christian model of the offender’s sinful nature and dependence on a Higher Power. Instead, a model of mainstream restorative justice is more likely to include concepts such as mutuality, respect, active listening, empathy for ourselves and those we have harmed or been harmed by, a focus on self-empowerment and attendance to the deeper needs of those involved, and the questioning and unlearning of prevailing punitive belief systems. For instance, the behavioral changes noted in violent men through mainstream restorative practices typically result from their coming to understand how they developed strategies to survive child abuse, poverty, racism, police brutality, or other environmental stresses and bought into the prevailing “male role belief system”; from this understanding, as well as from the care of peers and facilitators, flows empathy for their younger selves and then for their victims. The hope of many restorative justice practitioners is that such transformed men (and women) will become participants in reforming the social conditions and inequities that so restricted their options, in addition to practicing emotional maturity in their daily relationships.Many Christians find this development of empathy and social responsibility entirely compatible with Christianity, whether it involves Christian belief or not, but this is not the typical Christian conservative view. However, to an observer like me, both Colsonesque and mainstream restorative justice seem to have much in common—both believe in the individual’s ability to change. As more violent offenders transform themselves through both paths and meet and talk, I assume there will be cross-fertilization.Still, many conservatives who do believe in redemption see it as entirely compatible with punishment. Anyone harmed by crime is likely to feel colossal anger and so traditional notions of “an eye for an eye” will always have great appeal, especially if no mechanisms exist for satisfying the victim’s needs for empathy, answers, or restoration. If restorative options start to divert large numbers from prison, conservative investors in the prison-industrial complex will surely mobilize to protect their investment. They are likely to fund emotive appeals for punishment, many of them in traditional (and selective) biblical terms, and possibly with racist overtones.The essence of mainstream restorative justice is a practice of listening and empathy that is by nature corrosive of ideology and self-righteousness. Thus, combining thorough personal accountability with an understanding of the ways one’s environment has molded one is a complex task, not easily assimilated into some conservatives’ worldview. But that may change.On balance, I assume that most hardcore conservatives will not go for mainstream restorative justice. However, many middle-of-the-road people, including many evangelical Christians, may well support it when they see how well it works for crime victims they know and for any of their own relatives and friends who are arrested for offenses. In a recent case it was remarkable how quickly some police families came around to wanting a restorative justice option when one of their own kids was caught in a possible offense. If approval grows in middle America, it will mainly be because of positive personal experiences that will contradict the media stereotypes and polemics approving punitive justice.The appeal for liberals may be obvious: take better care of victims; drastically reduce the prison system; spend the money on education and public aid instead; reject ugly emotions of revenge; and reintegrate offenders into the community where they can lead productive lives and pay taxes.But what would liberals make of Peter Gabel’s vision of an astonishingly different kind of legal system? Some might feel that’s going too far. That’s to admit that fear of the other has been central to the liberal project all along. That’s to allow that the vaunted rationality of liberalism never has been free of emotion, but has too often been put to the service of a set of fears that serve neither love nor connection. To consciously serve love might be to infect public discourse with emotionality, spirituality, and even religion, in something of a creeping revolution.Something that’s too revolutionary for many liberals should sound good to radical anti-racists and anti-capitalists. Yet, there is something highly distasteful, or suspect, about restorative justice for many radicals.The greatest difficulty for the radical Left is implicit in Fania E. Davis’s words in this issue: “I would say this movement is more subversive than any of the revolutionary movements in which I have been involved since the 1950s. All previous social justice movements have kept us trapped in discordant, binary, either-or, right-wrong, and us-versus-them ways of being present to one another and to the earth.” Binaries are as central to the Left as they are to the Right. Many people have considered Right and Left to be equally self-righteous, equally prone to demonize the other side.It’s not just that someone like Sunny Schwartz (page 37) works for the sheriff’s department and expresses a vision for how corrections can become a noble profession, which looks to many radicals like collaboration with the imperialist and racist state. It’s also that restorative justice seeks to foster a sense of personal accountability in individuals who have perpetrated crimes. Doing so requires more focus on individuals—including on convicted members of oppressed races and classes—than some radicals are comfortable with. Some fear that restorative justice’s focus on individual accountability suggests that it’s the individuals’ fault they are in prison, not the fault of the system.If you imagine that Sunny Schwartz is compromising too much with the American empire, it is worth noting that the central anti-violence teaching in her program is provided by Manalive, which was developed by Hamish Sinclair. Sinclair cut his teeth organizing coal miners and their families in eastern Kentucky and autoworkers in Detroit in the 1960s who were all losing their union jobs as capital sought higher returns elsewhere. He saw his part of the Detroit resistance movement destroyed by the violent objections of union men toward women in their lives who wanted to share in the organizing. Sinclair dedicated his life to building programs for working-class men that would enable them to opt out of the “male role belief system,” in order to organize effectively with women when the times became conducive to organizing once more. Personal accountability and political organizing are two equal sides of Sinclair’s coin; he understands that neither comes easily and neither is complete without the other. One could argue that failure to grasp this has been the bane of most revolutions by radical utopians and of most elected social democratic parties as well. Animal Farm tells the classic tale of revolutionaries who both demonize the oppressor and, because they harbor romantic notions about the ability of the oppressed to be loving and just when they gain power, fail to learn the skills of accountability, empathy, and self-restraint (which a program like Sinclair’s Manalive teaches to highly competitive men).Combining thorough personal accountability with an understanding of the ways one’s environment has molded one is a complex task, not easily assimilated into some radicals’ worldviews. But that may change.Prison abolitionists argue that our current prison system is unreformable. Critical Resistance, a national grassroots group seeking to dismantle the prison-industrial complex, writes:Groups like these that see the restorative justice movement as already too fatally implicated in the criminal justice system (and unrealistic in its idea that there was anything good to be restored in the first place) tend instead to rally around the idea of “transformative justice.”Unlike restorative justice projects, which are often related in some way to the criminal justice system, either as an intervention meant to prevent incarceration or as an effort partly within the prisons to promote healing of offenders and victims, transformative justice projects tend to focus on creating a community-based system wholly outside the prison and courts system, thereby resonating more strongly with the prison abolitionist movement.Each side in this debate can push the other’s buttons. Failure to be sufficiently adversarial toward the criminal injustice system can look unconscionable to transformative justice activists. The use of more adversarial language and practices (e.g., in transformative justice, survivors making demands on those who have harmed them) and a perceived excess of theory over empathic practice can make restorative justice people doubt how transformative these other folks really are.But as Bench Ansfield and Timothy Colman’s article on a Philadelphia-based transformative justice project makes clear (page 41), at the heart of both is the development of empathic practices that work, that increase the sense of safety for survivors of violence, and that help those who perpetrated the harm to change. People who line up on both the restorative and transformative sides of the spectrum already meet and talk, and will do this more as their movements grow. Again, the focus on empathic listening will make it more likely that they will hear each other. Insofar as restorative practices actually work, transformative justice projects will adapt and adopt them, and vice versa.To me, both look like unfinished attempts at the same kind of thing, but starting from different positions in society as well as about society. Many restorative justice proponents start as professionals already in the system (the justice system or the school system—see Rita Alfred’s piece on page 48), who try to work it so that programs can get under way. While their methods may be those of reformers, working with district attorneys, within prisons, grade schools, or law schools, they have hugely transformative dreams. To them, the criticism from prison abolitionists may seem understandable but premature. Both movements, if successful, can end with prisons abolished, or reduced to housing only a tiny number of specific cases; one restorative justice lawyer speculated to me that this number might be as small as 2,000 people in the United States but added that the debate was fruitless at this point because it will be a matter of what works and how well we manage to create alternative methods for keeping people safe and transforming violent behavior. The movements are complementary, this viewpoint holds.And it does behoove restorative justice people to think how they would do things if there were no state-violence sanctions at all in the background of their work: If the alternative to a family or community circle were not criminal charges, or if there were no literally for role would there be enough for enough violent offenders to does a community do with those who an offender is in the community and no one is going to the what sanctions of of can be to to the person to a community It certainly may get to sound a But working out how to do this is a that many restorative justice people already we think of as radical on what we think the the of human to be in human nature as for by or is it or racism, or failure to For evangelical Christians, being is the most radical For some left-wing activists, does not sound radical For others it’s the that is the it suggests traditional of victim and offender, even of and when what is is to such notions and to the radical that has the same set of human is different strategies to meet their and to and to actually result in reduced safety and violence (see article on page of this there are and people feel strongly about them. However, in with restorative and transformative justice practitioners on different places on the spectrum, I have to criticize the they all seem their own visions them, they have much to to each other. is entirely within the empathic of these movements, and them from those whether on the Left or the Right, adversarial is different in restorative justice from other organizing. of that movement have their is this growing more becomes clear as soon as you to the They are less likely to theory than they are to you of and they are it is them experiences that they to deeper and the to One central practice is the in which can be heard and no one practitioners have different ways of A may be on the with of the and A or or other words that to the of those present may be A may be each person in a set by the They may start by how they the circle to what it should what they from the others in order to feel safe enough to what kind of respect, they on the circle goes to the it has been from a person who has been on a to the how well the has been or other inherent to that find that the circle structure them to more how it People and then their own of pain and A offender is to find that in the circle to how to the harm he has he can as long as he needs the district a to see how the process it is his to do so. A has already been with the that in the circle will be as should the case go to A was by a up the free A young who two and returns two years to offer because his is and he to make a he to pay the families in for what he and by his to spend the money on for and his to help the of abuse he has this becomes part of the he to criminal practices and of are the of the movement. However, it is not growing because the are and to all but also because they are and can find in juvenile and their is in of and in like reduced These practices do not on but can be so that from within the community and does not have to come from from a the same how much to and is an issue that may become and and is and there be ways of working out who has a debate on the of the versus other terms, it’s worth at September on his is one of the movement’s and leading One of his is to a by who of those who would like to the when restorative practices are not to the criminal justice on that another in the and the difficulty of such issues in the movement, which he started if there might be a strand of in the issues of justice, accountability, are issues not in of over too find a to the Christian movements that in I has been more with belief than most but it has always had that were most with behavioral emotional or may be of concern to such has been a likely of such movements, and so has resistance among and white proponents to questioning their own But in other such movements, love with the and the we saw in has people into for including and building the to me that restorative practices are a version of these movements of personal this movement is in and to be to people of all and but it is as as its practitioners it to radical of empathic listening and makes it with or a with any kind of version of personal is also much more strongly to of social racism, and inherited If the movement to like Fania who for in the movement to themselves more in the and in the ways the criminal justice system is as a new then we will start to have the kind of of personal change with change that many of us have been for years is the only way a society can be

Conflict-resolution among the Maroons in Suriname – Possible bridges between traditional and modern legal systems In this article, we report on our initial findings (from the field) regarding conflict resolution among the Maroons in Suriname. After first providing some background information about the Maroons (section 2), we describe their manner of conflict resolution after a crime has taken place and we explain what justice within this context entails for them (section 3). Subsequently, we try to distil ‘the useful elements’ from the Maroons’ approach to crime, that is to say elements with which modern restorative justice, i.e. restorative justice that meets, inter alia, human rights and constitutional requirements, can be nourished and strengthened. We also discuss some of the challenges we have encountered, where the traditional legal system and the modern criminal justice system come together (section 4). Then we try to build some possible bridges between the two legal systems (section 5). The contribution concludes with providing a window on the future of the development of restorative justice in Suriname and the Netherlands.

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.

Customary Law and the Nationalist Project in Spain and Peru

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

Law Number 1 Year 2023 on the Criminal Code (KUHP) is a form of national criminal law reform that recognises the existence of customary criminal law. However, it has not been regulated in detail how the implementation and position of customary criminal law as a reason for criminal prosecution, and there are fundamental differences between the two concepts of the legal system. The problems in this research are how the position between customary criminal law and national criminal law in the new Criminal Code, how the legal certainty of the regulation of customary criminal law in the new Criminal Code, and how the challenges in enforcing customary criminal law using the current criminal justice system in Indonesia. This research uses normative juridical method with regulatory and conceptual approaches. The results show that the applicability of customary criminal law is limited to the area where the law lives and applies to customary criminal acts committed in the area where the law lives. The position of customary criminal law can be valid as a reason for criminal prosecution if the customary law that is still alive in the community has been stipulated in the form of Regional Regulations, and customary offences that are similar to offences in the New Criminal Code will be ruled out, and the classification of customary sanctions as additional sanctions, positioning customary penalties to be complementary or secondary, because additional sanctions can only be imposed together with the main sanctions. Legal certainty towards the regulation of customary criminal law is highly dependent on the formulation of the elements of each offence of customary criminal law stipulated in regional regulations. The current criminal justice system in Indonesia (KUHAP) cannot realise the objectives of customary criminal law. The objectives, characteristics, and procedures in the concept of customary law are contrary to those in the criminal justice system. Restorative Justice can be utilised as an alternative to the settlement of customary criminal cases when the New Criminal Code comes into effect.

This chapter discusses about an issue that arises when we talk about human rights and foreign policy is the impact a government or an agency like the International Bar Association (IBA) has when it goes into a country with a human rights brief, and the extent to which foreign policy impacting on human rights is seen as being something foreign in that country. The legal system in Swaziland is a Roman Dutch system, but essentially a common law system overlaid with customary law. The legal system in Afghanistan is a civil law system, basically a mishmash as a result of its chequered history, together with Sharia law and customary law. Keywords: Afghan law; customary law; foreign policy; human rights; International Bar Association (IBA); Sharia law; Swaziland constitution

Minangkabau Customary Law is a traditional legal system that has been developed and passed down through generations within the Minangkabau community in West Sumatra, Indonesia. Rooted in local customs and culture, Minangkabau Customary Law has significant potential to serve as a basis and important perspective in the formation of an inclusive and sustainable national legal system. This research aims to explore the role of Minangkabau Customary Law in the formation of the national legal system and its potential contributions in creating social justice, preserving cultural diversity, and strengthening local autonomy. The research methodology employed is literature analysis, drawing on relevant primary and secondary sources including legal documents, academic writings, and practical experiences in the application of Minangkabau Customary Law. The findings of this research indicate that Minangkabau Customary Law encompasses interconnected principles such as musyawarah-mufakat (consensus-building), gotong royong (community cooperation), and restorative justice. These principles hold universal values that can be adapted and integrated into a broader national legal system. In the context of forming the national legal system, Minangkabau Customary Law can serve as a source of inspiration to develop legislation that aligns with societal interests, protects individual and group rights, and maintains a balance between national and local interests. Furthermore, Minangkabau Customary Law has the potential to preserve cultural diversity in Indonesia. In an era of globalization that often promotes cultural homogenization, the implementation of Minangkabau Customary Law can serve as a strong foundation to promote and safeguard cultural diversity at the national level. Through an approach that respects and acknowledges cultural differences, the national legal system can become an instrument that strengthens cultural identities and ensures the continuity of valuable cultural heritage.

Introduction: This article will outline how the application of restorative justice in the civil law system, the common law system, and the Indonesian legal system compares.Purposes of the Research: This study aims to provide a comprehensive comparison of the regulation and implementation of restorative justice across three legal systems - civil law, common law, and Indonesia’s hybrid legal system - and to identify best practices and challenges that can inform the development of restorative justice in diverse legal contexts.Methods of the Research: The study uses a normative legal method, combining a legal concept approach to examine the philosophical and ethical foundations of restorative justice with a statutory approach to analyze formal legal mechanisms. This methodology links legal theory with practice while highlighting the integration of normative principles within Indonesia’s socio-cultural context, including Pancasila and customary law.Results of the Research: This study compares restorative justice implementation in civil law, common law, and Indonesia’s legal system. Civil law is rigid and procedural, while common law allows flexible mechanisms such as victim–offender mediation. In Indonesia, despite Supreme Court Rule Number 1 of 2024, challenges include limited understanding among law enforcement, inconsistent application, and insufficient institutional support. Strengthening implementation requires harmonized regulations, professional training, community-based mechanisms rooted in local wisdom and customary law, and public awareness. Indonesia’s model highlights a transformative approach that integrates restorative principles with national values of humanity, justice, and social harmony.

The Baduy are indigenous people who firmly adhere to the customary law of their ancestral heritage, both in carrying out their daily lives and when conflicts or crimes occur. Even though they are part of Indonesia, the Baduy have their own legal system, which is different from positive law. Likewise in customary criminal law, the Baduy have a customary criminal justice system that is authorized to resolve customary conflicts that occur between indigenous people or those that occur in their customary territories. The conflict resolution method in Baduy customary law is called Silih Hampura. Silih Hampura 's way of working is very similar to that of restorative justice which is currently being implemented in national law to resolve various types of criminal acts. This research will examine the Silih Hampura method in resolving conflicts that occur in the Baduy as an effort to explore the Pancasila values contained in the local wisdom of the Baduy customary criminal law. The research method uses normative and empirical legal research methods. Using primary and secondary data sources which are processed using qualitative data analysis. The results of the study show that the Baduy have a conflict resolution method, namely Silih Hampura . The concepts of Silih Hampura are very thick with the norms contained in Pancasila. Deliberation for consensus, creating peace, family behavior, patterns of attention to victims and no elements of revenge, prioritizing victims' apologies and apologies from perpetrators, as well as restoring the conditions of victims, society and the environment so that they can restore the disturbed nature due to crimes or conflicts that have occurred.
 
 Received: 15 February 2023 / Accepted: 20 April 2023 / Published: 5 May 2023

In Indonesian, the main source of criminal law is in the Criminal Code and other Criminal laws and regulation. However, it is possible that customary law is considered as the source of law with certain limitations. This study aims to determine and analyze application of criminal sanctions to indigenous people and relevance of the legality of criminal law to customary law sanctions. The methodology used is juridical normative research method using a statutory and conceptual approach. With this research, the finding or conclusions are obtained that application of sanctions to customary law communities is recognized by several communities, and they believe that the customary court is a legal system that is still used by some indigenous peoples, and stipulation of customary criminal law sanctions is often not in accordance with the principle of legality which based on the principle and norms of criminal law as stipulated in the revisions of Article 1 Paragraph (1) of the Criminal Code. Therefore, in conclusion, the application of legality principle in imposition of criminal sanction to customary society still benchmark the customary law within the society itself.

This research discusses customary criminal law in Article 2 of Indonesia's new Criminal Code (KUHP), which reflects the country's social and cultural diversity. Customary criminal law, with its unique characteristics rooted in the values and social norms of indigenous communities, offers a different approach to conflict resolution compared to formal criminal law. It enriches the criminal justice system with aspects of restorative justice and creates space for the recognition of living law within society. However, this integration poses challenges, particularly regarding legal certainty and the principle of legality, considering that customary criminal law is often unwritten and variable. The method used is normative, involving legal research conducted through the study of literature or secondary data. The research is descriptive-analytical, focusing on the existence of customary law within national criminal law. Using a qualitative juridical approach, the analysis is based on legal principles and norms, studying legislation, literature, and scholarly writings. This study shows that the recognition of customary criminal law in Article 2 of the new Criminal Code presents challenges and opportunities for Indonesia's criminal justice system. This integration supports restorative justice and reflects the country's cultural diversity, but it also requires careful handling of legal certainty and the principle of legality. The need for clear conflict resolution mechanisms and additional regulations is crucial to maintaining a balance between customary legal traditions and the requirements of modern criminal law.

The child is the future and the next generation of the ideals of the nation, therefore the best interests of the child must be the responsibility of all parties. The Including the interests of children who are faced with the law. In the Criminal Justice System Law No. 11 of 2012 recognizes Justice's restorative approach in the settlement of child criminal cases. Restorative justice approach is intended to prevent children from the impression of criminal and psychological trauma due to the judicial process and also besides that restorative justice approach is an effort to restore the balance between the perpetrator and the victim, as well as the perpetrator with the community to the original state. One of the most important approaches to restorative justice is the traditional approach and local wisdom. Customary law and local wisdom should be an alternative solution in the realization of restorative justice. Therefore this paper intends to examine the legitimacy of customary law in the legal system in Indonesia and the extent to which it exists within the Criminal Justice System law. The method used in this paper is the normative approach. Based on the results of the study it was found that restorative justice through indigenous approaches and local wisdom has not been seriously accommodated in the Criminal Justice System Law. Customary law in the form of fulfillment of customary obligations is only considered as an additional criminal. The additional criminal principle is not independently dependent on the principal penalty. Should the state seriously apply the principle of restorative justice in the settlement of child criminal cases, the customary approach should be regarded as one of the main forms of the crime.