Achmad Shiva’ul Haq
Asjach
Scholar ID, Sinta ID, Scopus ID, WoSID
Indonesia is a country characterized
by a highly complex system of legal pluralism. Since the colonial era through
the post-independence period, the legal life of Indonesian society has been
influenced by various legal systems that coexist simultaneously, namely
customary law, Islamic law, and modern state law. Customary law develops from
local societal values that are communal, religious-magical, and concrete in
nature. Islamic law evolves through religious norms that possess strong social
legitimacy within Muslim communities. Meanwhile, modern state law is formed
through a formal legislative system characterized by rationality, bureaucracy,
and universality, as described by Marc Galanter in his characterization of
modern law (Galanter, 1976).
This diversity of legal systems has
produced both dynamics and tensions in the development of national law. Modern
states generally attempt to create legal unification in order to ensure legal
certainty and regulatory uniformity. However, in plural societies such as
Indonesia, efforts toward legal unification often conflict with the existence
of living law that continues to exist and be obeyed by society. Eugen
Ehrlich emphasized that the law that truly lives within society is not only
state law but also social norms that develop and are actually obeyed by the
community (living law) (Ehrlich, 1936). Therefore, the development of
national law cannot be conducted solely through a formal-legalistic approach.
In my view, the state should not
regard customary law and traditional law as obstacles to the development of
modern law, but rather as an essential part of national legal identity. The
state needs to develop an integrative and pluralistic legal approach while
still ensuring legal certainty without eliminating the existence of living
law. In this context, legal unification is not always an ideal solution if
it is implemented in a centralized manner and ignores the social realities of
Indonesia’s diverse society.
Theoretically, modern law as proposed
by Marc Galanter has universal, written, systematic characteristics and is
administered through state bureaucracy. Such a legal model is indeed important
to support the modern state, economic development, and effective governance.
However, modern law is often top-down in nature and less sensitive to local
culture. As a result, state law sometimes lacks strong social legitimacy in
society because it is perceived as being detached from local living values.
In contrast, customary law has a
character that is much closer to the life of society. Customary law emerges
from social experience, traditions, and cultural values that are passed down
from generation to generation. Therefore, people often comply more with
customary law than with state law, particularly in the settlement of social
disputes, land issues, and family relations. From Eugen Ehrlich’s perspective,
this condition demonstrates that living law often operates more quickly
and more effectively than formal state law.
The tension between modern law and
customary law can be observed in various cases in Indonesia, one of which
concerns conflicts over the recognition of indigenous peoples’ rights to
customary land (ulayat land). A concrete example can be seen in
Constitutional Court Decision No. 35/PUU-X/2012 concerning customary forests.
In this decision, the Constitutional Court ruled that customary forests are no
longer part of state forests but fall within the territory of indigenous
customary law communities, provided that their existence is constitutionally
recognized.
Prior to this decision, the state,
through the Forestry Law, tended to adopt a centralized modern legal approach
by positioning the state as the primary authority over forest areas. As a
result, many indigenous communities lost their rights to traditional
territories because the state granted concession permits to plantation, mining,
and forestry companies. In practice, state law often functioned as an
instrument to legitimize the exploitation of natural resources while neglecting
the rights of indigenous peoples.
This case demonstrates that legal
unification that is overly oriented toward modern state law can threaten the
existence of living law and generate social conflict. The state often
imposes legal uniformity in the name of administrative certainty without
considering the diversity of local legal systems. As a result, state law loses
social legitimacy and triggers resistance from indigenous communities.
From a sociological perspective of
law, this condition illustrates the limitations of a legalistic approach in
national legal development. Soerjono Soekanto emphasizes that the effectiveness
of law is strongly influenced by the compatibility of law with societal values
(Soekanto, 2014). Therefore, a national legal system that ignores legal
pluralism will be difficult to implement effectively because it is not aligned
with the legal culture of society.
In my view, legal unification is
still necessary within certain limits, particularly to ensure national legal
certainty, the protection of human rights, and state integration. However,
legal unification must not be carried out in an absolute and centralized
manner. The state needs to adopt a model of legal harmonization that
accommodates legal pluralism and provides space for customary law and religious
law, as long as they do not conflict with the constitution and human rights
principles.
A more responsive legal pluralism
approach is more suitable for Indonesia than a rigid model of legal
unification. The state must acknowledge that society possesses its own living
legal mechanisms that are effective in maintaining social order. Recognition of
customary law does not weaken the state; rather, it strengthens the legitimacy
of national law because law is built upon the social realities of Indonesian
society.
In addition, national legal
development should adopt a participatory approach by involving indigenous
communities, religious leaders, and local communities in the law-making
process. The state must also ensure that legal harmonization is not used as an
instrument of domination over certain social groups. In the context of legal
modernization, the state must be able to balance legal certainty, social
justice, and respect for the diversity of legal cultures within society.
Nevertheless, I also argue that not
all forms of living law can be preserved unconditionally. The state
still has an obligation to impose limitations when customary practices conflict
with human rights, gender equality principles, or constitutional values.
Therefore, legal pluralism must be understood in a dynamic and contextual
manner, not as justification for all traditional practices without critique.
Thus, the tension between traditional
law and modern law in national legal development should not be resolved through
repressive and centralized legal unification. Instead, the state needs to build
a pluralistic, responsive, and adaptive national legal system that acknowledges
the existence of living law. The experience of conflicts over indigenous
forest rights shows that state law that ignores social reality will lose
legitimacy and trigger prolonged conflict. Therefore, national legal
development in Indonesia should be directed toward harmonizing modern law with
the law that lives within society in order to create a legal system that is
just, effective, and rooted in the social values of the Indonesian nation.
References
Ehrlich, E. (1936). Fundamental
principles of the sociology of law. Cambridge: Harvard University Press.
Galanter, M. (1976). The
modernization of law. In M. Galanter (Ed.), Modernization and the law
(pp. 153–165). New York: Free Press.
Constitutional Court Decision No.
35/PUU-X/2012.
Soekanto, S. (2014). Fundamentals
of legal sociology. Jakarta: Rajawali Pers.
Wignjosoebroto, S. (2013). Law in
society: Development and issues. Malang: Setara Press.
Rahardjo, S. (2009). Progressive
law: A synthesis of Indonesian law. Yogyakarta: Genta Publishing.
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