Customary Law Research Articles

Mutations of customary law and state law in the south of Mozambique: paths of hybridisation on gender and family matters

This paper departs from the sociolegal study about the “Norms and Practices of local populations in Conflict Resolution and Access to Law and Justice”. Specifically, we will focus the Chókwè district, in the south of Mozambique, on the social space of the family, namely the paths of hybridisation on gender and family matters, in three main topics: the norms and practices in the family social space, pointing out the tensions between customary law and state law in a context of legal pluralism; the identification and analysis of the norms and practices and the main actors involved on this conflict resolution, by drawing a map of instances and their interactions; and different paths of hybridization between customary law and state law reflected on the practices related in the fieldwork. We argue that Chókwè reflects an emergence of a new Mozambican configuration of legal pluralism in family matters – a composed Local Law.

Relevance of Aceh's Qanun Jinayat in Minimizing Cases of Sexual Harassment against Children in Aceh

This study aims to describe the relevance of Qanun Number 6 of 2014 concerning Jinayat Law as a legal regulation used to address cases of child sexual Harassment in Aceh. This is considered important because until now cases of child sexual Harassment in Aceh have continued to increase every year. In addition, Aceh is a region that has special regulations that are formed based on Islamic law and customary law. Therefore, the provisions relating to sexual Harassment in Aceh are different from other provincial areas that use the Child Protection Law, the Sexual Violence Crime Law or Law Number 1 of 2023 concerning the Criminal Code. The study was conducted using a sociological legal research method with descriptive analytical writing specifications. The focus of this study is on how the relevance of Aceh Qanun Number 6 of 2014 concerning Jinayat Law is in minimizing the number of cases of child sexual Harassment in Aceh, thus causing this study to be different from previous studies. The results of this study indicate that Qanun Number 6 of 2014 concerning Jinayat Law has not been able to optimally address cases of child sexual Harassment in Aceh. It is because the five factors that influence the effectiveness of the implementation of Qanun Jinayat in Aceh have not been effective until now. The five factors are legal factors, law enforcement factors, facilities and infrastructure factors, community factors and cultural factors. In addition, the provisions of the threat of sanctions contained in Qanun Jinayat when associated with the theory of just desert and the theory of the purpose of punishment in Islamic criminal law are still relatively light so that they have an impact on the unprotection of children's rights as victims and do not provide a deterrent effect for perpetrators.

The Role of Community Traditional Institutions in Dispute Resolution in Multicultural Communities

Indonesian society is pluralistic, consisting of various ethnic groups, religions, and customs. This diversity can trigger various disputes in multicultural societies. This research aims to analyze the role of societal institutions in dispute-resolution efforts in multicultural communities. This study uses a qualitative research method with a literature study approach, focusing on societal institutions as the primary subjects, specifically their role and effectiveness in managing disputes. Data from various sources were analyzed in three stages: data reduction, presentation, and conclusion drawing. The research results show that society institutions play a significant role in resolving disputes through mechanisms such as deliberation for consensus, customs, and customary sanctions. Strengthening the role of these institutions is essential for maintaining social harmony by increasing community understanding of customary law and building synergy between customary institutions and state law.

Subak Lungatad in Preventing Land Conversion through the Revision of Awig – Awig

Subak is a community organization that specializes in regulating the rice field irrigation system used in rice cultivation in Bali, one of which is Subak Lungatad Yang in Peguyangan Kangin Village, North Denpaar. Subak Lungatad has a customary law norm called Awig-Awig. Awig-Awig is a customary law norm that is formulated and regulates the behavior pattern of community members in interacting in order to create order and peace, meaning that Awig-Awig grows and is formulated so that the life of the community in the customary village is not damaged. However, in the application of awig – awig Subak is also lived by the Balinese people as a concept of life, because it is a direct manifestation of the philosophy called Tri Hita Karana. There is a problem that arises in the awigs in Subak Lungatad is that they have not regulated and can anticipate changes in land use change in the subak Lungatad district Land use change in the last 1 year covering an area of 0.8 hectares, which is in Subak Lungatad, from the area of Subak 114 hectares. From this data, it can be described that land use change is still occurring. Pekaseh Subak Lungatad, I Made Maja, revealed that Subak Lungatad is part of the irrigation area of Kedewatan Pasedahan Yeh Lauh, Peguyangan Kangin Village, North Denpasar District. With a raw land area of 120 hectares, all of them are semi-irrigated. The subak land continues to experience pressure due to land conversion, there tends to be housing development. This condition is certainly really concerning for the future of rice fields and agriculture of the people of Denpasar. The participation of Krama Subak in preventing the conversion of agricultural land into housing can be done by including the rules in the awig-awig subak. Although the existing awig subak has not yet regulated it, it can be made in the form of a perarem or implementing rule of the awig- awig. The role of subak as a traditional organization in the field of water use at the farming level in indigenous peoples. The important role of the subak system is closely related to the strength of the subak itself, including the simplicity of the organizational structure, a cooperative work system and the implementation of the Tri Hita Karana philosophy. One of them is related to weakness which is also related to the lands in the subak lungakad area. The Awig Subak Lungatad that was made has not been regulated for a long time in anticipating changes in land use.

TRADITIONAL MARRIAGE IN THE TENGGER COMMUNITY PERSPECTIVE OF ACCULTURATION THEORY

<p>This research aims to analyze the acculturation of traditional marriage practices within the Tengger community, specifically investigating whether there has been a shift in customary marriage procedures following the introduction of Hinduism. To address this research question, the researcher collected data on two key traditional marriage ceremonies: Walagara and Pewawihan. In Tengger custom, these ceremonies are essential for validating a marriage. Without them, the marriage is neither recognized nor legalized according to customary law. This raises a significant inquiry on whether Walagara and Pewawihan are purely traditional customs or have been acculturated with Hindu values. The findings indicate that while Walagara and Pewawihan remain part of Tengger's heritage, their implementation has changed. Specifically, the prayers recited during these ceremonies now incorporate Hindu elements. The researcher concludes that Walagara and Pewawihan consist of two distinct components: the ritual movements, which align with Tengger custom, and the prayers, which reflect Hindu influences.</p>

Legal Implications of Incest Marriage in Balinese Customary Law

This study aims to discuss incest marriage in terms of marriage law, the legal implications of incest marriage, as well as the problems of customary law and national law governing incest marriage. This study uses empirical juridical research methods with a factual and sociological approach. Incest marriage has violated the provisions contained in Article 8 of Law Number 1 of 1974, Article 30 of the Civil Code, and Article 39 of the Compilation of Islamic Law which prohibits marriage between brothers and sisters who are still related by blood. The legal implications of incest marriage as stipulated in Article 22, Article 24, Article 26, and Article 27 of Law Number 1 of 1974 can be declared null and void. Incest marriage as a tradition that developed in Bonyoh traditional village is not in accordance with national law, but on the other hand customary law in force in the region does not prohibit incest marriage. The indigenous Bonyoh villagers consider incest marriages as an effort to preserve local traditions that have been passed down by ancestors over time

The Application of Dayak Customary Law In West Kalimantan Towards Fulfilling A Sense of Justice For Victims (Case Study of Indecent Acts)

The position of customary law in the legal system in Indonesia has the same constitutional position as the legal position in general that applies in the life of the state in Indonesia. However, it must be emphasized that there is a difference between customary law and applicable law in general, namely the aspect of its enactment and formation. The applicability of customary law only applies to Indonesians and from the aspect of its form, customary law is generally not written. The method in this research uses empirical legal research. Research approaches using an empirical legal approach include a legal sociology approach, a legal psychology approach and a legal anthropology approach. Techniques for collecting legal materials through identification, inventory of positive legal rules, literature, books, journals, other sources of legal materials. Legal material analysis techniques use legal interpretation (interpretation), grammatical interpretation, systematic interpretation and legal construction methods. The results of the research and discussion show that the application of Kalimantan Dayak customary punishment is carried out by bringing together the two parties who have a conflict, then these parties are seated with traditional heads, tribal chiefs and people who are considered to understand customary law. After being seated together, a discussion was held regarding the customary offense that had occurred, whether a customary offense had indeed occurred or not. If it is known and proven that a customary offense has occurred, then the contents of the victim's demands against the perpetrator will be discussed, hereinafter referred to as customary sanctions.

Nagari and the state: an authentic perspective on customary law community unity in the Indonesian employment community

Nagari and the state: an authentic perspective on customary law community unity in the Indonesian employment community

The Conflicting Categorization of Kings and Chiefs in Ghana

This article aims to explore the historical development and contemporary role of the chieftaincy institution in Ghana, highlighting its enduring significance and adaptability. The institution of chieftaincy has been with the people of Ghana for centuries. Chiefs, now known as traditional rulers, are distinct from political rulers. The laws of Ghana require chiefs to maintain neutrality by forbidding their engagement in active politics. Chiefs are royals who have been validly nominated, elected, or selected by their respective kingmakers to be enstooled or enskinned according to the relevant customary law and usage. When Europeans came to Africa to trade, chiefs governed independent states, each with its own laws, courts, police, and military. The chieftaincy institution is organized hierarchically, ranging from the lowest rank to the apex, and among the Asantes, the Asantehene is the apex. Before 1901, when the British colonized the Asantes, the Asantehene served as the political, executive, and legislative head of the people of the Asante Kingdom. The Asante Kingdom covers the Ashanti Region, Ahafo Region, parts of the Bono and Bono East Regions, and a paramountcy each in Ghana’s Eastern and Oti Regions. The traditional capital of the Asante Kingdom, Kumasi, was initially at Kwaman. In the 1670s, Chief Osei Tutu from the Oyoko Abohyen Dynasty became the chief of Kwaman after succeeding his late uncle Nana Obiri Yeboah, who reigned from 1640 to 1680 and united all the Asante chiefdoms, which were independent and had their political autonomy. The occupants of the Golden Stool are designated as kings and have held the title to this day. Although the British succeeded in changing the name of some kings to paramount chiefs, they failed to change the name of the royals responsible for the nomination, election or selection of a person to be enstooled or installed as an Asantehene, paramount chief or chief, who are still called the kingmakers. Keywords: Asante Kingdom; Asantehene; enstooled; fetish-priest; Gold Coast; golden stool; kingmakers; Oyoko clan; paramount chief; traditional ruler.

Representasi Otoritarianisme dalam Cerita Rakyat Kutai Berjudul “Punang”

The aim of this study is to explore the representation of authoritarianism in the Kutai folklore titled Punang, focusing on both the intrinsic and extrinsic aspects of the text. Through this story, it becomes evident how power and customary laws influence the social life of the community, particularly the pressure faced by King Buy to marry in order to produce offspring. The study employs a qualitative descriptive method with a hermeneutic and narrative approach to reveal messages of authoritarianism within the story. The findings indicate the presence of cultural authoritarianism, as seen in how leaders are expected to submit to collective decisions and customary laws that regulate individual freedom. This research contributes to a deeper understanding of regional literature and demonstrates how traditional norms can shape power structures and social legitimacy within local communities.

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.

Addressing Inheritance and Divorce Disputes in Deathbed Situations: A Maslahah-Based Study of South Africa�s Muslim Minority

South Africa features a blend of legislative regulations, customary laws, and evolving legal principles. This dynamic becomes especially complex for the small Muslim community, which must also adhere to Islamic Law, particularly in matters of inheritance distribution. Currently, South African legal references regarding inheritance under Islamic law are limited. This article seeks to analyze a specific inheritance case in which a husband, on his deathbed, has two wives, a son, and a daughter. The first wife was divorced while he was on his deathbed, and during this period, he married another woman before ultimately passing away. In his will, the husband stipulated that the estate should be distributed according to Islamic law, thus entitling his legitimate wife to inheritance. This study employs descriptive qualitative research using scenario-thinking methods to explore potential future outcomes for which no legal precedent exists. In analyzing this case, the concept of public interest (maslahah) emerges as a relevant theory aligned with the principle of justice. Various scholarly opinions from Islamic legal schools were also utilized in the analysis. The article recommends that the South African Muslim Judicial Council prioritize maslahah, proposing that both wives share 3/24 of the estate, the son receive 14/24, and the daughter receive 7/24. Although this decision has not yet been formally recognized in Islamic law, it can be viewed as an act of independent reasoning (ijtihad) based on the principle of justice through the approach of public interest without specific textual evidence (maslahah mursalah). Additionally, rationalized public interest (maslahah ma�qul al-ma�na) was applied to allocate inheritance to the first wife, acknowledging her extended time with the deceased husband.

ARRANGING REGULATORY POLICIES TO SUPPORT ECONOMIC GROWTH, INVESTMENT, INDUSTRIAL REVOLUTION 4.0, SOCIETY 5.0, AND THE GLOBAL ECONOMY WITH OMNIBUS LAW

<p>Arranging regulatory policies to support economic growth, investment, the Industrial Revolution 4.0, Society 5.0, and the global economy using the omnibus law turned out to be problematic. Among the people, there are pros and cons because it is not following the Indonesian legal system, which follows the "civil law" tradition. It is necessary to research the pros and cons of this research. The purpose of this research is to analyze the effectiveness of the omnibus law policy in managing regulations to support economic growth, investment, Industrial Revolution 4.0, Society 5.0, and the global economy. The research method used is normative legal research with a literature study approach. This study concludes that implementing the omnibus law policy in managing regulations to support economic growth, investment, the Industrial Revolution 4.0, Society 5.0, and the global economy is very effective and efficient because the formation is cheaper, faster, and avoids various political conflicts. Law policies formed using the omnibus law method are part of the national legal system. Therefore, the omnibus law policy in managing regulations must refer to the provisions and principles regulated in Law Number 12 of 2011 on the Establishment of Legislation as amended by Law Number 15 of 2019 and Law Number 13 of 2022 and its implementing regulations, Presidential Regulation Number 87 of 2014 and Number 76 of 2021, as well as general and universal principles, the principles and concepts of customary law or, in some instances, the principles and concepts of Islamic law. Everything is elaborated in a direction based on the omnibus law method so that the law developed based on the omnibus law method can create happiness for the Indonesian people, as mandated in the fourth paragraph of the opening of the 1945 Constitution.</p>

Enforcement of the Principle of Legality to Living Law as Legal Basis in the Positivism of Displacement Customary Law

Living law is an inseparable part of the Indonesian criminal law system. However, in perspective of legality principle, living law causing pros and cons. The idea of regulating the living law in Indonesian, as the basis for criminal prosecution, for unregulated act is still debated. The issue that will be analysed in this article is how to apply living law/adat law as a basis for prosecuting criminals related to the existence of legality principle and, how to measure the enforcement of living law in criminal process. Based on the analysis using the principle of legality, it can be concluded that living law, as basis for prosecution, is contrary to principle of legality and protection of human rights. The enactment of living law can potentially create legal uncertainty and abuse of power by the government. Law enforcement against living law is also difficult to implement, because it is tied to the four indicators. Therefore, the living law provision better not be placed as part of general principles in the Indonesian Penal Code Bill. Keywords: Code Bill: Legality principle; Living law.

Merenden Tedong di Mamasa: Integrasi Pendekatan Struktural dan Kultural dalam Memitigasi Konflik Sosial Keagamaan

The Mamasa community has the Merenden Tedong tradition which is rooted in customary law as an effective conflict resolution model in resolving social problems. This tradition is deeply rooted and has become a unique cultural icon in overcoming social challenges and conflicts in society. The integration of this traditional approach with a formal approach from the government has strengthened the mechanism for mitigating socio-religious conflict in social life. This article aims to describe the integration between two conflict resolution models, namely the cultural approach through customary law and the structural approach through government policy, as an effort to mitigate socio-religious conflict in Mamasa. This research used a phenomenological analysis approach involving in-depth interviews. Informants consisted of traditional leaders, community leaders, government officials and community members to gain a comprehensive understanding of the Merenden Tedong tradition as a model for conflict resolution. This research found that the integration of cultural and structural approaches in the Merenden Tedong tradition contributed significantly to mitigating social and religious conflict. Collaboration between traditional institutions and the government strengthened the role of customary law in conflict prevention, proving that an integrative approach is more effective than a unilateral model. Further research is recommended to explore the role of the younger generation in maintaining the identity of Pitu Ulunna Salu as a conflict mitigation strategy. Keywords: Merenden Tedong, Conflict Resolution, Integrative Approach, Mamasa

The Role of Customary Law in the Development of National Law in the Modern Era

Customary law plays an important role in the development of national law in Indonesia, especially in the modern era marked by globalization and modernization. Customary law serves as a reflection of the rich and diverse local cultural values, and plays a role in various aspects of community life, including the resolution of rescue, management of natural resources, and protection of the rights of indigenous peoples. In the era of decentralization and regional autonomy, customary law is increasingly recognized in local policies and becomes an important instrument in maintaining the unique legal identity of each region. Formal recognition of customary law is also reflected in various national regulations, such as the Law on Villages and the Basic Agrarian Law, which accommodate customary law in facing the challenges of modernization and globalization, customary law must adapt to the modern era

An analysis of pre-attack self-defence doctrines through a risk-based lens

ABSTRACT For many writers, States have a customary law right to self-defensive force before an attack has occurred. The self-defence doctrines of anticipatory, pre-emptive and preventive self-defence all purport to condition the resort to pre-attack self-defensive force in various ways. However, these doctrines are marred by acute terminological ambiguities. To help resolve this ambiguity, this article explores the utility of a risk-based framework for understanding the content of each doctrine and the points of correspondence and disagreement between them. The article undertakes a detailed textual analysis of literature published from 1945 to 2023, analysing the descriptions and discussions of each doctrine in-depth through the lens of a risk-based framework to categorise the variables that condition the resort to force. Even when analysed in this manner, the article finds that the three self-defence doctrines struggle to be meaningfully differentiated. If unresolved, this ambiguity may undermine efforts at conflict mitigation and de-escalation.

State of Reciprocity: The “Looping Effect” in the Circular Production of Colonial Knowledge, Social Customs, and Tax Policy in Nineteenth- and Twentieth-Century Indonesia

Abstract This article traces Hacking's “looping effect” in colonial policies and practices of taxation, coerced labour, and governance in Indonesia. It argues that knowledge production for the purpose of taxation was a two-way, interactive process which was in particular influenced by complexes of local indigenous social organization, institutions, mentalities, and behaviour as expressed through adat (Indonesian systems of political-social norms and customary law). Such patterns and systems, the article reveals, were internalized into and started working reciprocally with colonial policy, knowledge production, and administrative practices. Taxation made up and changed people, but underlying strategies to categorize and “make known” subjects were also recognized and actively used, evaded, or influenced by these subjects and by local intermediaries. Consequently, colonial knowledge created an institutional framework that reoriented the self-perception of these subjects and intermediaries, which then changed and reconditioned popular responses to the colonial state. Systems of colonial knowledge were thus modified to eventually fit the realities they were supposed to describe, influence, and legitimize, creating a looping effect between colonial, “made up,” and actual social realities.

The Implementation of Equidistance Line on Maritime Delimitation between Indonesia-Australia in Perth Treaty 1997

This article proposes some suggestions to the government in renegotiating the Perth Treaty to provide a solution for a definitive maritime boundary between Indonesia and Australia. Renegotiation of the Perth Treaty in terms of maritime delimitation between the two countries needs to be done in relation to the limitation of sovereignty of both countries. This treaty has never been ratified by both countries after the signing in 1998. The fundamental reason of Australia is associated with the independence of Timor-Leste in 1999 so that the rebus sic stantibus principle then applies. This research employed legal method to provide recommendations to the government as a basis for renegotiating the Perth Treaty according to international law. It also used a statutory and case approach. There are underlying reasons for the urgency of renegotiating the Perth Treaty using the median line with an equidistance line approach. The median line in UNCLOS 1982 has proven to provide progressive results regarding the maritime delimitation of countries. However the decisions of the International Court of Justice, resulted in various side effects with the use of the median line as a single effort to resolve maritime delimitation disputes. Therefore, a new solution is proposed, namely the median line with an equidistance line approach as the most effective method to create justice for each party. The equidistance line in international law serves as a legal resolution method, emerging from customary practices. It is recognized as new customary law for resolving maritime delimitation disputes between countries. Harmonisation of the median line concept using the equidistance line approach in resolving maritime delimitation disputes between Indonesia and Australia is a new approach that can be used based on the successful harmonisation of these two concepts in resolving delimitation disputes globally.

Law, justice and decoloniality in Petina Gappah’s works: an Ubuntu perspective

ABSTRACT The emergence of law and literature as a transdiscipline has unravelled fascinating insights into the role of literary imagination in raising pertinent jurisprudential questions and envisioning alternative legal universes. The literary front can expand legal literacy, humanise the law, and offer perspectives that are otherwise overlooked in conventional jurisprudence. This article explores Petina Gappah’s representation of law and justice in The Book of Memory (2015) and Rotten Row (2016), focussing on how she innovatively deploys politico-aesthetic means to expose ambiguities, ambivalences and inadequacies in Zimbabwe’s legal system. It contends that Gappah uses the literary medium to underline how the exclusion of customary law from the country’s common law system undermines the delivery of justice. Considering that the texts are alive to the limitations of both customary and common law systems, the study argues for a legal pluralism that harnesses the progressive aspects of the two legal cultures. By drawing on Zimbabwe’s humanist philosophy of Unhu, the study places studied texts within a growing decolonial narrative that critiques the coloniality of legal frameworks in formerly colonised nations.