INTERNATIONAL JOURNAL OF INDONESIAN STUDIES SPRING 2016
1 ) As long as such communities still exist ; 2 ) It may not conflict with the national interest and the State ’ s interest ; 3 ) It shall not conflict the laws and regulations of higher level .
According to Bedner and Huis ( 2010 ), the recognition is unspecific and conditional : it is vague about what rights it refers to , whether a community that is no longer ‘ traditional ’ loses its specific rights , and whether these rights remain protected if they are out of tune with ‘ altered times and culture ’ and ‘ national interest ’ and ‘ the State ’ s interest ’. These norms can be concluded to be rubber norms which have diverse meanings and , consequently , the State can simply interpret them as it pleases to suit .
With regard to the judicial system , the common view is that the majority of judges and justices fiercely embrace a strong legal formalism paradigm ( Putro , 2011 , 27 ). As the former Chief Justice of the Supreme Court , Bagir Manan , said :
It is illogical thought to consider justice and other external values into legal reasoning processes . The judge must always consider the existing positive laws . ( Manan , 2003 , 34 )
This paper will investigate the practices of legal pluralism in Indonesia particularly in philosophical , social and legal spheres . First , it is important to discuss and examine diverse legal terminologies utilised by the prominent scholars in regard to legal pluralism discourse in Indonesia . The choice of terminologies is crucial to the discussion because without determining a correct terminology the study may generate misunderstanding , lose its sociolegal characteristic and not focus on Indonesia ’ s context .
The development of legal thoughts in Indonesia will be elaborated on by discussing the position taken by several prominent legal scholars . It starts from the idea of inseparability between morality and law proposed by naturalists , to legalism , to sociological and to the apex of contemporary legal discourse propounded by postmodernists . This paper only consists of theoretical discourse which aims as a theoretical framework . Further research should look into empirical studies on this area .
Debateable legal terminologies Living adat law
The literature has introduced a large number of definitions referring to the law that sociologically are being used within local communities . The definitions are diverse , and scholars who embrace common law traditions such as Jain ( 1995 ), Allot ( 1995 ) and Forsyth ( 2009 ) often use the concept of customary law to depict the phenomena . On the other hand , civil law scholars prefer to use living law or adat law , because , according to Vollenhoven whose work was mainly influenced by Savigny and Ehrlich , adat ’ s definition has a broader meaning than customary law ( Benda-Beckmann F and K , 2009 , 177 ). Vollenhoven considers adat as ‘ folk law ’, ‘ people ’ s law ’ or ‘ living law ’, which has dynamic and flexible characteristics ( Bourchier , 2008 , 54 ; Thorburn , 2008 , 78 ; and Hertogh , 2009 , 64 ).
The concept of living law is more appropriate than adat law , because the living adat law is a living , actual and contextual law that is being practiced and obeyed by the
105 | P a g e