REVITALIZATION OF ADAT OR INDIGENOUS LAW AS A SOURCE

OF LAWIN DEVELOPING INDONESIA'S LEGAL SYSTEM

Oleh : Ni Putu Nopianti

ABSTRACT

Ignoring the existence of customary law as a source of law in Indonesia,

one of thembecause of the assumption that customary law is very traditional in
nature and cannot reachcurrent developments (globalization and technology). This
research examines the areas of customary lawwhich one is still relevant in
overcoming the problems facing the nationIndonesia is in the era of globalization,
and what is the urgency of customary law as a policy foundationdevelopment of
national laws. This research uses descriptive analytical research methodwith a
normative juridical approach, where data and information will be collected both in
terms of The studies and management are carried out in an interdisciplinary and
multidisciplinary manneras well as cross-sectoral. The data and information are
then analyzed by juridical normativein-depth so that you get an overview of
customary law. The results showed thatsome of the institutions of customary law
include inheritance law, customary rights, pawning, lease, profit sharingrelevant
and can be a source of inspiration for the formation of national laws and a
sourcelaw in the process of legal discovery.

Keywords: customary law, sources, law revitalization

Preliminary

The existence of customary law as living law 1the Indonesian people are
increasingly marginalize. The customary law that originally became who is alive
and able to provide solutions in various social problems Indonesian society, the
more of existence. Currently, in reality empiricism sometimes appears a lotvarious
problems faced by society Indonesian customs when customary law confrontswith
positive law. For example when the rights the traditional rights of society are
faced withthe interests of investors through the legal means ofgara. Development
of the Indonesian Legal System who tend to prefer civil law andcommon law
system and Indonesian legal politicssia which leads to codification and
unificationlaw, accelerate the disappearance of legal institutions custom. Even the
reality cannot be denied this time, related to economic activity,positive law
transforms into the system Islamic law (sharia). It can be said thatin business
activities such as corporate law, financing law both in banking,capital markets and
insurance and contract law applies dualism of the legal system, namelysional and
sharia. 5 Related to existence Islamic principles in economic activity, the
authorargues that it is the customary law institution relating to economic
activitiesmany have the same viewpoint wit hIslamic principles, including
prioritizing the principles ofsip of balance, prohibition of exploitation
withoutboundaries and sustainable development. 6 Withso, currently besides
Customary law, thenIslamic principles have become a source ofnational laws.

The increasingly marginalized existence of forestkum adat as a source of

law inIndonesia, one of which is because of the assumption thatwa customary law
is very traditional andcannot reach the times (globalization and technology).
Political implications Indonesian law is also felt in the solving problems in society
thatinterpret Adat law, which is actually more relevantlevan. For example, the
rampant historical conflictzontal, between indigenous peoples in one
area,supposed to be accomplished through rolescustomary community settlement
institutions. Periodit is crucial that occurs in everyday lifedifferences in
perceptions between land tenureby the community based on customary rights
withpublic interest which becomes a burden andstate obligations. Another
example is ideasso that the basis should be convicted of an actexpanded to the
realm of customary law values.

Indigenous peoples have the same patternin resolving conflicts in society,

namely controlling life in societyand impose sanctions if violated sorecovery to be
very effective. 16Exampleotherwise, Utrecht University seeks to encourageuse of
deliberations to reach a consensusMalay indigenous peoples in completing
theirproblem that happened. In societyAdat, dispute resolution throughrah is a
living and known law in almost every legal circle ( rechtskring ).Dispute
resolution through this deliberationalways involves the head of the people
(traditional leaders),good at preventing legal violationskum ( preventieve
rechtszorg ) and recover-right law ( rechtsherstel ). On the contrary, Indo-nesia
enforces Law Number 301999 Concerning Arbitration and AlternativeDispute
resolution as an option for resolvingoutside the court, which is evidentlyinspired
by the development of zinc-finishingketa in countries with common law systems .
18Furthermore, it can be seen that in ordercodification and unification of law in
Indonesia,as the legislation refersin the common law, civil law and legal
systemssharia.

Some of the thoughts contained inlam living law theory , among others,
statesthat in a process of forming legislation is an absoluterus pay attention to
values and normslaws that live and apply in societyrakat. When a law comes into
effectcontrary to the values and norms-nor-which are the laws that live and apply
insociety, of course, will get aright. In the Indonesian context, living law
societyRakat Indonesia is customary law.Customary law can also be used
assource of law by judge if statuteordered so. Customary Law isfeed law that is
not codified in circlesIndonesian and foreign Eastern nations (among
othersChinese and Arabic). Based on the description above, with regard towith the
position of customary law as lawwho live in indigenous peoples in Indonesia,there
are two problems discussed in the articlethis. First, what is the urgency of
customary lawas a basis for human rights development policiesnational kum? and
second, legal fieldswhich customs are still relevant in makingovercome the
problems at handthe Indonesian nation in the era of globalization ?.

Research methods

To facilitate the work of researchers-In this case, a research method is

needed.tian, data collection techniques and methods ofthe relevant approach. In
this case it is usedanalytical descriptive research method withnormative juridical
approach. Where is the data andinformation to be gathered both in terms
ofassessment and managementcarried out in an interdisciplinary and
multidisciplinary mannerner as well as cross-sectoral. Secondary data in the form
ofprimary, secondary and tertiary legal materials as wellthe information is then
analyzedqualitative juridical depth so that theget an overview of customary law.
Tech-data collection nik used is literature study. The results of the literature
studythen analyzed using the methodqualitative data analysis means
conclusionsnot based on statistical figuresotherwise concluded based on the
relationship betweenlegal principles, legal principles andlegal theory with the
phenomena that occur inin society (through juridical interpretation).

Results and Discussion

Customary law can be classified asbase the diversity as contained inin

legal circles ( rechtskring) ,can also be seen from another perspective, namelyfrom
the field of study, namely customary law regardingstructure of citizens
(constitutional law), lawadat regarding the relationship between citizens
(lawcivil), and customary law regarding offenses (lawcriminal). Based on this and
forreviewing customary laws that are still relevant, inuse as a source of legal
formationnational, researchers first determinethe following signs.

First, the study was conducted carefullybih previously looked at areas of

law that wereneutral and non neutral (sensitive). In-what you mean by the neutral
field of law isfields of law that are not directly related towith human spiritual
aspects, such as lawobjects, contract law and legal fieldseconomics, while the
field of law is non-neutralis a field of law that is closely related tohuman spiritual
hand is like the law ofwinan, inheritance law and land law. Second,based on
customary law that does notbat the development of a sustainable societylan.
Third, customary law which is still being considered is expected to be the
sourceformation of unification and codification in the fieldcertain laws. Based on
the signs above,then the researchers conducted a study of thekum state
administration and customary civil law.

Indigenous Peoples Composition (Government)

Customary law regarding the composition of citizensincludes everything

about the arrangement andorder in the indigenous community alliance.Indigenous
peoples are united by an alliancerespective laws, which are equallord of law has a
structure, a toolpan, and chores. Legal alliancehave members who feel they aretie
to each other, who are united, andfull of solidarity. Legal alliances are
formedbased on geneological and territorial factors.Geneological factors bind
people torut lineage. Based on the line of descent-there is a structured legal
structurebased on the father's lineage (patrilineal),maternal lineage (matrilineal),
and based onthe lineage of both (parental).The territorial factors bind the
memberslegal alliance members based on relationshiptogether against the same
area. Per-legal partners based on territorial factorsincludes, villages, regions, and
village unions.Village fellowship is if a placethe common residence binds a
communityman above his own territory. Fellowshiparea is if there are
severalcommon residence in an areacertainly and always with inner freedomto a
certain degree and each headed upby officials, where are the places of
residencethese are parts of aa fellowship that has boundaries andself-government,
as well as own territorial rights.Village union is when the alliance-each village
fellowship complete with-with their own government and regions andlocation
close together and enter into an agreementto maintain common interests withenter
into a covenant to maintain themutual interest by holding agovernment which is
cooperation between of these governments, whereHe-the village head who was
joined was not given-it's a separate area.The demands of nationalism on the
StateThe unity of the Republic of Indonesia has forced itlegal partnership based
on genetic factorslogically can not be surfaced, asotherwise the other cause is due
to compositiongenealogical orderly society spread toregions because they do not
have territoriesalone. However, this is not the casesunan society based on
territorial factorssuch as Nagari in Minangkabau and Subak in Bali until now its
existence is still in line withdevelopment of government, even in the eraregional
autonomy, the concept of Nagari governmentis inspiring the revitalization of
village autonomy. To-have a customary law association as ais a system of
government in the regionsformal juridical has a strong foundation.

Conclusion

There are several conclusions to the problemdiscussed in this article. First,

the institutionga-customary law institution is currentlyalternative legal
institutions, which are important toused as a foundation or sourcethe
establishment of national laws . Second, the fieldsareas of customary law that are
still relevant insolve current problemscovers both areas of law that are neutral in
nature such as family and inheritance law, rights overland, namely ulayat, the
right to gain a position,the right to withdraw the rights of use, and
transactionsrelated to land such as lease rights,Agreement on Split Pinang (Maro),
Rent and Guaranteenan in the transfer of rights related toland and non-neutral
such as Nationalgari.

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