Adat Law Research Articles

Study of Living Law and its Implication in the Formation of the Criminal Code (KUHP) in the Era of Decentralization of Indonesian Laws

This study explores the implications of living law in the formation of Indonesia's Criminal Code during the era of legal decentralization. Living law, comprising unwritten customs and traditions, continues to play a vital role in many Indonesian communities, particularly in the context of criminal justice. The research employs a juridical analysis and case study approach, focusing on regions where adat law (customary law) significantly influences legal practices. The findings reveal both the benefits and challenges of integrating living law into the formal legal system. While living law enhances cultural relevance and community-based justice, it also introduces concerns about legal fragmentation and potential conflicts with national human rights standards. The study recommends selective incorporation of living law into the Criminal Code, along with efforts to codify regional customs to ensure consistency and legal certainty. This research contributes to the ongoing debate on legal pluralism in Indonesia, offering insights into the future of criminal law reform in a decentralized system.

The Role of Customary Law in Forest Governance and Conservation in Jambi, Indonesia: A Case Study of Makekal Hulu Village within the Customary Territory of the Suku Anak Dalam

Indonesia's forests face increasing pressures from deforestation and degradation. While national laws exist to protect these vital ecosystems, their implementation often faces challenges, particularly in areas inhabited by indigenous communities with distinct customary laws and practices. This study examines the role of customary law (adat law) in forest governance and conservation in Jambi Province, Indonesia, focusing on Makekal Hulu village within the customary territory of the Suku Anak Dalam. This qualitative study employed a case study approach. Data were collected through semi-structured interviews with adat leaders, community members, government officials, and NGO representatives. Focus group discussions were conducted to gather diverse perspectives on forest management practices. Relevant documents, such as adat regulations, government policies, and NGO reports, were also analyzed. Additionally, data was utilized to enhance understanding of resource use dynamics and land-use change patterns. The findings reveal that adat law plays a significant role in regulating access to and use of forest resources in Makekal Hulu. Adat institutions, led by the village elder and guided by customary beliefs, enforce rules related to logging, hunting, and land clearing. These rules often complement national laws, providing a localized and context-specific approach to forest management. However, challenges exist in harmonizing adat law with national legislation, particularly concerning land tenure conflicts and external pressures from logging and plantation interests. In conclusion, this study highlights the importance of recognizing and incorporating adat law into forest governance frameworks in Indonesia. By integrating traditional knowledge and practices with national policies, a more effective and sustainable approach to forest conservation can be achieved. This requires collaboration between government agencies, adat communities, and civil society organizations to ensure that adat law is respected and supported within the broader legal framework.

Legal Status of Customary Communities, Customary Law Communities and Indigenous Communities as Custom Law Subjects

The goal of this study is to examine the legal-statutes of the unity of the adat-law community (customary community) and adat-community as the subject of adat-lawThis is a socio legal research and employed a reflective approach, this study is result and discussion: the result of the reflection base on research conducted in various regions or areas as adatlaw legal-fields and is supported by the writings of researchers, observers, adatlaw and indigenous people activists. The basic concept of this paper is to say that the legal-statutes of the unity of adat-law communities, adat law communities, and adat-communities as the subject of adat law as stated in Article 18 B Paragraph (2) of the 1945 Constitution of the Republic of Indonesia are identical. However, the legal-statutes of the unity adat law communities, adatlaw community, and adat-community needs to be discussed. This discussion was initiated so that the unity of adat-law communities, adat-law communities, adat-communities were not identical. Therefore, it is important to discuss this paper with the aim of clarifying the legal-statutes of the unity of adat-law communities, adat-law communities, and adat-communities as the subject of adat-law.

The Principle of Material Legality in the Criminal Code: A Paradigmatic Review of the Normativity of Adat Law in the Indonesian Legal System

The Principle of Material Legality in the Criminal Code: A Paradigmatic Review of the Normativity of Adat Law in the Indonesian Legal System

Reformulation of Sale And Purchase Agreement Regulations in Creating Legal Certainty and Justice in The Transfer of Land Rights in Indonesia

Even though Indonesia has promulgated Act Number 5 of 1960 concerning Basic Agrarian Principles Regulations, this regulation cannot provide legal certainty and justice for the parties in the sale and purchase of land rights agreements. When judges decide cases involving property rights sale and purchase agreements, they base their decisions on legal procedures and sources, which demonstrate this uncertainty and injustice. The legal sources as references are varied, sometimes BW (Burgerlijk Wetboek, Adat Law (Customary Law), or Act Number 5 of 1960 with Government Regulatiion Number 24 of 1997. This article uses a normative legal research method. In analysis, to create a land rights sale and purchase agreement that can provide legal certainty and justice, the issue needs to be regulated, especially regarding the issue of the various legal sources, and the responsibility of the state in providing legal certainty. For sales and purchase agreements to provide legal certainty and justice, the state must move from a negative publication system to a positive publication system to realize the constitutional rights of Indonesian citizens in Article 28 D UUD 1945.

The Epistemology of Land in an Adat Perspective: Philosophical Aspects of Human Relations With Land in the View of Mohammad Koesnoe

AbstractThe spirit of agrarian law reform in Indonesia has been proposed since 2001, but to date it has not been realized. On the one hand, the existence of adat law as the basis for the formation of national agrarian law as stated in the UUPA needs to be questioned again, whether it actually uses adat law as its raw material, or whether it still uses colonial law. The discussion in this article aims to contribute ideas related to the reform of agrarian law in Indonesia which is based on customary law regarding land. The direction of this reform is based more on the views of adat law expert, Mohammad Koesnoe. The type of research in this article is legal research using a conceptual approach and also a statute approach, and analyzed using historical, systematic and grammatical interpretation methods. The research results show that customary law is still relevant to use as a basis for legal reform in Indonesia while still referring to the rechtsidee of the Indonesian nation as stated in Pancasila. Therefore, agrarian reform in Indonesia should refer to the original law of the Indonesian people, namely adat law.Keywords: Adat Land Law; Agrarian Law Reform; Soil Epistemology.

Correlation of sharia and adat law norms among vainakhs: traditional aspects and religious imperatives

The article presents a scientific study of the issues of mutual influence, the relationship between the norms of Sharia and adat law among the Vainakhs (Chechens and Ingush). The fundamental purpose of the research is the historical and theoretical-legal analysis of individual norms of the Vainakh adate law in the prism of their correlation, mutual influence with the norms of Islamic law and Sharia. Research objectives: characteristics of individual customs that formed the adat law of the Vainakhs; study of the mutual influence of the norms of adat law and Sharia law in historical perspective and in the period of modernity; analysis of the line of permissible/illegal human behavior under Islamic law; characteristics of the concept of madhabity in Islamic law. The hypothesis of the study: the established adats and norms of behavior among the Vainakhs, as well as the principles of interpersonal interaction on various issues and spheres of activity among Chechens, almost completely correspond to the Islamic religion and Sharia norms. The chronicle of the study covers the historical period of the formation and development of adat law with the subsequent spread of the principles of Sharia and up to the modern picture of the day regarding the phenomena studied in the context of their legal realization. The issues of the influence of adat and Sharia norms in family and marriage relations, during religious rites, including funerals, are investigated. The paper provides field materials obtained by the author on the subject under study as examples implemented in practice. The analysis of the line of human behavior in Muslim law, based on the categories of forbidden (Harama) and permissible (Halal). Information is provided about madhhabism in Fiqh schools. The conclusion is formulated that in a situation of possible contradiction between the norms of Adat and Sharia, the prevailing importance should be given to the norms of Sharia.

New Ways of Teaching Adat (Customary) Law at Indonesian Law Schools

While customary law typically is not the sole legal system regulating people's daily lives, it still plays a big role in shaping the behavior of countless individuals worldwide. For this reason, law schools in many countries teach customary law courses, but these courses often present customary law as a sterile set of principles and norms detached from studying social reality. This approach associates customary law with traditional communities whose members live in relative isolation from the world, ignoring the fact that customary law operates in a legally pluralistic universe, interacting with religious and state law systems, and that it adapts to new economic and social conditions. This way of teaching customary law is common in Indonesia. The present article discusses the origins of the current situation and the need for innovations in customary law courses in Indonesia. We analyze the current shortcomings and challenges in the existing adat (customary) law courses and propose socio-legal approach to improve their relevance. This new approach aims to equip students with knowledge that has more practical relevance and enhances the course’s doctrinal features. In so doing, we pay tribute to Keebet von Benda-Beckmann’s indefatigable efforts to better understand and recognize the importance of adat in the context of legal pluralism in Indonesia.

PANAI PRACTICES: UNRAVELING SOCIETAL DYNAMICS IN MARRIAGE REQUIREMENTS FOR THE MIGRANT BUGIS TRIBE UNDER ADAT LAW

This study delves into the intricate societal dynamics surrounding the practice of Panai as the marriage requirement for the migrant Bugis Tribe under Adat Law. Panai, a traditional ceremony in Bugis culture, plays a pivotal role in marriage arrangements. Through a multidisciplinary approach, encompassing anthropological, legal, and cultural perspectives, the research seeks to unravel the implications and intricacies of Panai practices. Interviews, case studies, and historical analyses contribute to an in-depth exploration of how Panai influences marital unions within the Bugis Tribe, shedding light on the cultural and legal nuances that shape this traditional marriage requirement.

Harmonizing Adat Obligations and State Law: A Case Study of Murder and Rape Cases in Baduy’s Indonesia

The aim of this study is to investigate the implementation of adat obligation fulfilment in Baduy’s adat society in cases of murder and rape of Baduy girls that occurred in 2019. The main problem studied is related to how the fulfilment of adat obligations in these cases has been carried out by the Baduy’s adat institution and its relevance to the regulations in the New Criminal Code. The research method used is normative-sociological, using both secondary data and primary data. Literature review and field studies were conducted by interviewing traditional leaders in Baduy. The urgency of this research lies in examining the applicability of positive law in the Baduy adat area, along with the implementation of adat obligations and the restoration of the cosmic balance of Baduy’s society as a result of the effects of crimes that occurred in the Baduy’s adat jurisdiction. The novelty of this research lies in the study of the fulfillment of adat obligations applicable in Baduy in cases of murder and rape of Baduy girls and its relevance to the regulations of the New Criminal Code. The research findings indicate that the perpetrators of murder and rape of Baduy’s girls have been subjected to both positive criminal law (imprisonment) and Baduy’s adat law in the form of a adat obligation sanction that required them to married the victim. The implementation of sanctions from both the state and adat law implemented in parallel, despite coming from two different institutions. In conclusion, the fulfilment of adat obligations, as implemented by Baduy’s adat law, is relevant to the regulations in the New Criminal Code. However, the implementation of the fulfillment of adat obligations in the New Criminal Code must go through by a court decision. Therefore, the adat institution becomes a crucial aspect that should be considered in relation to the existence and authority of sanctioning in the implementation of adat obligations.

Exploring Customary Law: Perspectives of Hazairin and Cornelis Van Vollenhoven and its Relevance to the Future of Islamic Law in Indonesia

The difference between Islamic law and Western law in viewing customary law is the core problem that forms the background of this research. This article aims to explore in-depth Customary Law from the perspectives of Hazairin and Cornelis Van Vollenhoven and its relevance to the future existence of Islamic law in Indonesia. This research is a literature study applying a qualitative Juridical-Normative approach. The primary sources for this research are the original works of Hazairin (Tujuh Serangkai tentang Hukum dan Hazairin, Hukum Kewarisan Bilateral Menurut al-Qur�an dan Hadith) and Van Vollenhoven (Het Adatrecht Van Nederlandsch-Indie and its translated version, Van Vollenhoven on Indonesian Adat Law). The secondary sources are all references relevant to the topic of the article. Comparative analysis is used in analyzing the data. The research findings explain that, according to Hazairin, customary law can be applied anywhere as long as it does not contradict Islamic law. In contrast, Van Vollenhoven argues that customary law does not need to consider religion because all humans have equal rights before God, thus rejecting or eliminating customs or traditions is considered undignified. The formation of national law due to culture and tradition is an important part of society. This research provides a conceptual historical-theoretical narrative related to customary law in Indonesia. Despite having different perspectives on customary law, both Hazairin and Van Vollenhoven share the vision that customary law should be made into positive law. Therefore, the existence of customary law needs to be considered by lawmakers to become national positive law.

Beberapa Catatan tentang Pentingnya Penelitian Hukum Adat Empiris

Mainstream Customary (Adat) Law does not pay much attention to empirical legal research; therefore, it is adat-positive legal science. In fact, adat law lives in a continuously changing community; thus, isolating its study from social research has made adat legal science has lost the opportunity to find perpetual adat legal development. This paper explains the significance of social research for adat legal science. Empirical data have numerous functions, such as legal materials to draft Academic papers on laws and regulations related to the Adat Law Community, judges’ consideration in settling disputes, especially agrarian conflict, and supporting the Adat Law Community to formulate their rules for the sake of their community and environmental sustainability.

Adat Law-Making Process

Abstract This study aims to analyse the emerging need to change customary law (adat law in Indonesia) and identify the role of adat functionaries. The experience of the Mollo adat law community (indigenous people) from the south-eastern part of Indonesia, Timor Island, shows that the sudden and massive collection of haukonof (Usnea barbata), a non-timber forest product, has caused forest destruction. How do the adat functionaries respond to the situation? Is adat law sufficient to respond to the sudden change of their livelihood? If it is not, then what to do? Furthermore, what are the impacts on the functionaries? What are their difficulties, and how do they solve them? This article is based on an in-depth ethnographic study held in July—September 2021. Data are collected through interviews and observation. The adat functionaries want to restrict the people from picking and collecting haukonof, but there is no adat law specifically ruling on it. Only the adat functionaries should protect the environment. The pickers and the collectors of haukonof are the members of the communities. The kinship relation between the functionaries and the members complicates legal enforcement. The adat functionaries’ authority and the sustainability of the livelihoods are in danger. The immediate solution is borrowing state law which obliges a person who utilises non-timber forest products in the Protection Forest to hold a valid permit. It effectively reduces the number of haukonof picking and collection by the community members. Adat’s law-making process does not work in isolation. It is an interactive process that needs continuous foresight observation from the adat functionaries to find the appropriate solution to protect the environment and the people.

The Potential of Subak Uma Lambing in Sibangkaja Abiansemal Village, Badung Based on Organic Farming Culture as Ectourism

Partners in this service are Prajuru Subak Umalambing, which involves organic and non-organic farmers in Subak Umalambing Sibangkaja Ecotourism. The partner's problems are the developed Subak Lambing ecotourism has not been able to implement state law and local law (adat law, awig-awig, and perarem) as part of legal certainty. Objectives: First, to provide legal awareness of ecotourism and organic farming-based culture with the expectation that the law has a cultural meaning in managing ecotourism; second, the potential of Subak Umalambing as ecotourism organic farming requires synergy between Kelian Subak and the Astungkara Way Foundation in managing small tradition-based agriculture (farmers) that can provide added value to farmers. Third, Subak Umalambing Ecotourism in a "redesign" manner and public health needs continuous education and state intervention, especially village government Sibangkaja, to design sustainable ecotourism with the protection of state law

Adat as a symbol of solidarity in Indonesia

This article examines adat from the perspective of solidarity of the non-European population in Indonesia. In legal terms, adat is a part of the legal system that includes all (uncodified) customary law of the non-European population of Indonesia. It is pointed out that adat and adat law are similar concepts in the context of Indonesia. At the same time, adat is the most important tool for bringing peace and harmony back to the community. It is demonstrated that the basis of adat law is not an individual, but a community. Adat maintains solidarity in the Indonesian community by reflecting the moral ideals of religion and society. It is argued that the Indonesian Constitution of 1945 was developed on the basis of adat, thereby indicating the connection between adat and Indonesian law after Indonesia gained independence.

TUMPANG TINDIH PENGUASAAN TANAH DI WILAYAH IBU KOTA NEGARA “NUSANTARA”

In August 2019, the Central Government of Indonesia made an important decision to choose East Kalimantan province to be the location of the new state capital (Nusantara). East Kalimantan was chosen due to its large available state or government-owned land. Some of the large available lands are designated state forest while some others are unregistered land, for which the Government applies formal land tenure system. This article examines the extent to which formal land tenure system has been exercised in land control, land transaction, and land acquisition in the Nusantara through the inquiries on how local individual and group landowners responded to the application of the formal land tenure system. Data collection was conducted through library research and field interview. This research finds that there have been multiple overlapping claims over land rights taking place in the new capital. State, adat law communities, and sultanate are making claims to similar land plots. The overlapping claims arose after the bureaucrats developed a formalistic view or interpretation on state land. This view suggested any unregistered land is state land regardless of actual control and use that are existing. This form of interpretation will most probably influence the way the bureaucrat implements current regulations concerning the new capital where some stipulations respect customary land rights.

SENGKETA JUAL BELI TANAH BERSTATUS SURAT KETERANGAN TANAH: KEDUDUKAN HUKUM DAN PENYELESAIANNYA DALAM REGULASI HUKUM POSITIF DAN HUKUM ADAT DAYAK

Disputes over land occur in almost every region in Indonesia. One of the cases of legal problems in the field of buying and selling land is the dispute over the sale and purchase of land with the status of a land certificate with overlapping ownership. Dispute resolution methods are litigation or through court and non-litigation or outside the court such as through Nganju Dayak customary law. This study aims to examine how the legal position of land ownership certificates (SKT) is in the perspective of positive law in Indonesia and how to resolve it according to the Adat law of the Dayak Ngaju of Central Kalimantan. This type of research is empirical juridical legal research. The types or sources of data used are primary data and secondary data. The research instruments used were interviews and library research. Data obtained based on library research and field data were analyzed by qualitative descriptive analysis. The position of SKT is based on positive law in Indonesia as stated in Article 76 paragraph (3) Permenag No.3/1997, a certificate of rights does not meet the requirements to be considered a statement of physical ownership of a land parcel if it does not fulfill the six specified conditions. Land which is based only on HCS ownership, does not have sufficiently strong evidence of ownership of the land and is directed to increase the legality of ownership certificates or SHM as proof of ownership that is authentic and legal with legal certainty. Settlement of land sale and purchase disputes based on customary law of the Dayak Nganju through Kedamangan Jekan Raya is pursued by prioritizing the peace process and prioritizing the principle of kinship, the decision does not cause resentment and dissatisfaction, without resentment which ends in the breakup of good relations between the two.

Transformation and Future Challenges of Islamic Law in Indonesia

This study aims to investigate the transformation of Islamic law starting from pre-entry of Islam to Indonesia, entry of Islam, colonialism, and independence to current reformation in Indonesia, as well as various challenges to the formalization of Islamic law. The method used was a qualitative method with the type of library research namely by researching and reviewing legal materials that include primary legal materials, secondary legal materials, and tertiary legal materials that relevant to the object of this research. The results show that pre-entry of Islam to Indonesia, the applicable law was adat law, then since the entry of Islam into Indonesia, Islamic law has been well accepted and implemented by the community, and even its existence has gained legitimacy from both legal experts and the Dutch government. After Indonesia's independence, especially during the Old Order era, Islamic law did not transform significantly. During the New Order after such party collapsed, Islamic law began to transform significantly. Although since the reform period, Islamic law has transformed significantly, the challenges of Islamic law are serious, both internal and external. The most dominant internal challenges among are not fully codified Islamic law, Indonesian pluralistic condition, politics of the rulers' law, misconceptions of some legal experts about Islamic law, and other. Meanwhile, external challenges include influence of transnational ideologies which give a negative stigma against Islam, the development of Western ideologies that clash with Islamic law and the human rights, and strong influence of the domination of Western law in Indonesia.

THE REVITALIZATION OF AWIG-AWIG OF THE NORTH LOMBOK ADAT LAW PEOPLE TO REALIZE A JUSTICE AND A LEGAL CERTAINTY

The adat criminal law is considered one of the sources of law in the Indonesian criminal law system. Its applicability is based on the provisions of Energy Law No. 1 of 1951, Article 5 paragraph (3) sub b. Such provision determines the applicability criteria of the adat criminal law, which has a limited nature, by observing the description of criminal acts in the Criminal Code. One of the adat people who still implement the adat criminal law is the one who resides in North Lombok; they use awig-awig as the primary institution to manage the relationship in society, the relationship between humans and the universe and the relationship between human and their creator. This study uses normative legal research with normative and sociological juridical approaches. The normative legal research used is abstract legal research, legal principles research, concrete legal research, and systematic legal research. Sociological juridical research is conducted towards the permitted values and principles and the applicability of the criminal adat law among the adat people in North Lombok. In conclusion, this study shows that the revitalization of awig-awig among the adat people in North Lombok is conducted because its implementation is seen and felt as more fulfilling for the adat people to achieve the sense of justice and legal certainty in reaction to the occurring people’s development, on that sense, the people’s development may effectively apply the awig-awig. The implementation of adat sanctions is deemed and perceived to restore cosmic balance, remove dirty deeds or clean up the disturbance to the environment of adat peoples due to the adat violation. Meanwhile, other types of criminal sanctions are considered to have no magical religious value.

RECONSTRUCT THE PARADIGM SHIFT OF INHERITANCE RIGHTS FOR BALINESE HINDU WOMEN

According to Balinese adat (customary) law, the sole inheritors are sons with purusa status, while daughters with predana status are not eligible to inherit. However, the idea of granting inheritance rights to Balinese Hindu women came to the fore, indicating a paradigm shift in the legal sense through the provision of a share of the property, or gunakaya, to their daughters as jiwadana, tadtadan, or bekel. The critical point is to reconstruct a paradigm shift by subordinating Balinese Hindu women’s inheritance rights to women’s emancipation, human rights, and gender equality.