International Journal of Indonesian Studies Volume 1, Issue 3 | Page 104
INTERNATIONAL JOURNAL OF INDONESIAN STUDIES
SPRING 2016
Living adat Law, Indigenous Peoples and the State Law: A Complex Map of
Legal Pluralism in Indonesia
Mirza Satria Buana
Biodata: A lecturer at Lambung Mangkurat University, South Kalimantan, Indonesia and is
currently pursuing a Ph.D in Law at T.C Beirne, School of Law, The University of Queensland,
Australia. The author’s profile can be viewed at: http://www.law.uq.edu.au/rhd-studentprofiles. Email: [email protected]
Abstract
This paper examines legal pluralism’s discourse in Indonesia which experiences challenges
from within. The strong influence of civil law tradition may hinder the reconciliation
processes between the Indonesian living law, namely adat law, and the State legal system
which is characterised by the strong legal positivist (formalist). The State law fiercely
embraces the spirit of unification, discretion-limiting in legal reasoning and strictly moralrule dichotomies. The first part of this paper aims to reveal the appropriate terminologies in
legal pluralism discourse in the context of Indonesian legal system. The second part of this
paper will trace the historical and dialectical development of Indonesian legal pluralism, by
discussing the position taken by several scholars from diverse legal paradigms. This paper
will demonstrate that philosophical reform by shifting from legalism and developmentalism
to legal pluralism is pivotal to widen the space for justice for the people, particularly those
considered to be indigenous peoples. This paper, however, only contains theoretical
discourse which was part of pre-liminary research data. Further research should expand the
study by incorporating an empirical aspect.
Keywords: legal pluralism; living adat law; legal formalist; legal centralism; Indonesian legal
system
Introduction
Today, Indonesia still normatively recognises the existence of living adat law and Indonesian
indigenous peoples as evidenced by the wording of the Indonesian 1945 Constitution Article
18B (2) that states:
The state recognises and respects integrated legal indigenous communities (kesatuan
masyarakat hukum adat) along with their traditional customary rights as long as these
remain in existence and are in accordance with the societal development and the
principles of the Unitary State of the Republic of Indonesia, and shall be regulated by
law.
Article 28i (3) on Human Rights Chapter also states a similar idea. However, Hooker
(1975) said that this written recognition is insufficient to protect and sustain the existence
of living adat law because the position of living adat law is ambiguously inferior to the State
law.
Law No 5 of 1960 concerning Basic Agrarian Law recognises the land rights of
indigenous communities with the following conditions:
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