International Journal of Indonesian Studies Volume 1, Issue 3 | Page 108

INTERNATIONAL JOURNAL OF INDONESIAN STUDIES
SPRING 2016
hierarchy. Sanctions in indigenous communities are used not as a form of payback but to
restore the cosmic order by remedying a disorder in the balance of nature. Instead, it is a
result of dynamic social relations (Jong, 1995, 111-115).
The essence of TDR lies in the reconciliation agreement between the victim and the
perpetrator mediated by the tribal chief. Through this agreement, the perpetrator admits
fault and promises not to repeat the crime, while the victim wholeheartedly forgives the
crime (with some compensations). This form of agreement is the essence of living adat law,
and corresponds with the indigenous proverb: ‘agreement is older than adat law, law
therefore is agreement.’ Through this agreement, living adat law updates its validity within
the community. Vollenhoven’s understanding of living adat law may stem from the fact that
he could not free himself entirely from his western civil law background, leading him to
think that sanctions are the only guarantee of order (Maddock, 2002, 87).
The typical western concept of a ‘court’ being imposed on indigenous communities
and their TDR should be reviewed. TDR is under much pressure to become more formalised,
a tendency that must be rejected, because the formalisation will abrogate the living adat
law from TDR practice. It is true that some TDR performs a ‘court’ or adjudication function,
but TDR has a broader purpose than just adjudicating. Instead, TDR is not only a process for
the settlement of dispute but TDR can also be applied in many other non-conflict social
relations including the conclusion of a marriage, childbirth, death and funeral events (Slaat
& Portier, 1992, 34). The aims are to strengthen harmony and re-establish cosmic relations
between disputing parties within its jurisdiction.
The living adat law and social morality become the main source of law (Pryles, 2002,
1-3). Hooker (1975, 294) states indigenous dispute resolution should be based on adat
values such as: the value of togetherness, the value of totality, and the value of
appropriateness. By contrast, the formal court is based on an objective pre-existing legal
source which is a legal proposition stipulated by legislators and applied by judges.
Other researchers use concepts such as ADR (Black, 2001; Black, 2005), and informal,
popular or non-state justice (Matthew, 1988; Abel, 1994; UNDP, 2006, World Bank, 2008).
This paper rejects these terminologies by stating: indigenous dispute resolution is not
necessarily an alternative to formal mechanisms, because it is often the first stage of
dispute resolution (Astor and Chinkin, 2002, 5).
This paper proposes a concept of TDR because it is a more moderate and inclusive
concept encompassing diverse social and legal dispute resolution mechanisms that are
being practiced by indigenous peoples.
Legal pluralism discourse
The development of living law can be traced from Savigny’s famous maxim Volksgeist (a
common consciousness of law), as opposed to Juristenrecht (lawyer’s law). It was originally
elaborated from a fundamental principle of opinion necessitatis which is the individual’s
perception of law (Watson, 1995, 154).
In response to the State law hegemony, Ehrlich opposes the formalist’s claim that the
only valid law is a legal proposition produced by the legislature or State political power or by
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