Cerdika: Jurnal Ilmiah Indonesia, April 2021, 1 (4), 392-402

p-ISSN: 2774-6291 e-ISSN: 2774-6534

Available online at http://cerdika.publikasiindonesia.id/index.php/cerdika/index

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TRADITIONAL LAW EXISTENCE IN INDONESIA IN REVIEW FROM

AGE TO AGE

Michelle Angelika S

, Yohanes Firmansyah

, Yana Sylvana

dan Hanna Wijaya

Faculty of Health Law, Pembangunan Nasional Veteran Jakarta University, Indonesia

michelleangelika111@gmail.com, yohanesfirmansyah28@gmail.com,

sylvanayana@gmail.com dan hannwijaya@yahoo.com

Received : 10-03-2021

Revised : 14-04-2021

Accepted : 21-04-2021

Abstract

Introduction: The rules of action are a reflection of the life

characteristics of a class of people. Regulations that are

timeless and firmly integrated with the citizens' behavior can

increase their binding power. As a result, they become

customs. In a tradition, there are various rules of the tongue,

listed as customary law. Routine or habit is a term commonly

used in people's lives. Purpose: to reconnect the role of

customary law in the history of legal development in

Indonesia. This journal also explains that although customary

law is local and difficult to enforce nationally, customary law

contains noble values and local culture. Method and

Material: This research is in the form of literature search

using various search engines such as Google Scholar.

Results: The existence of customary law has been legally

recognized by the Indonesian authorities, approved by all

Indonesian citizens as one of the legal rules. The citizens can

lawfully use it on the side of the authorities' use of laws and

regulations. Customary law reflects something Indonesian

personality as if the result has been claimed to be like original

Indonesian law. As if the law is not recorded, currently, the

presence of customary law is being questioned. It has been

estimated as conventional, outlandish, ancient primitive,

ancient compared to the citizens' modern progress. Some

people think that customary law is incapable of solving cases

during a period.

Keywords: customary law; Indonesia; traditional law.

CC BY

INTRODUCTION

Humans are living beings created by the Almighty who are given privileges

compared to other living beings. These luxuries are none other than the mind and physical

intellect, making them into something we call individuals. An individual who is growing and

developing cannot live alone in fulfilling all the needs he needs. In daily processes, an

individual needs other individuals to achieve their primary and secondary markets

(Shofiyatul Azmi, 2018).

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According to Aristotle (384 - 322 BC), humans create God Almighty, who always

wants to mingle and eventually form a group with other humans. Since he was born into the

world, he has an instinct to have relationships with other humans. Some of the reasons that

justify this statement are that humans have biological stimuli to eat, survive, and have

children. Initially, his relationship was limited to parents, and day after day, his association

will be more comprehensive. With the widening of the relationship between humans,

guidelines are made which constitute the rules for the community.

Some various principles and values guide people's lives. Legal norms are important

norms besides religious norms, politeness, and morality. Traditional standards in society

vary, including written law and unwritten law (Soekanto, 2000).

Every society around the world has a legal system within the territory of its country.

No nation does not have its national legal system. Federal law is a reflection of the culture

of the government concerned. Because the law is the nation's mind and grows from the

awareness of the nation's direction, the law will be seen from the reflection of the nation's

culture (Sumarman, 2003).

In Indonesia, one of the laws that reflects the national personality is customary law,

which is the nation's soul's incarnation from century to century. The customs owned by the

regions are different, even though they have one basis and character, namely Indonesianness.

Therefore, the Indonesian people's traditions are Bhinneka Tunggal Ika, which means

distant, but still one. These customs are always developing and always following society's

development and are closely related to the people's traditions. This business is sediment

(reflection) of morality in society, the truth of which has received general recognition in that

community.

This journal specifically discuss the concept of customary law according to

scholars? What is the legal basis for the application of customary law in Indonesia? What is

the position of customary law in the current national legal system? How to strengthen the

preservation of traditional values in jurisprudence

The purpose of this journal is to reconnect the role of customary law in the history

of legal development in Indonesia. This journal also explains that although customary law is

local and difficult to enforce nationally, customary law contains noble values and local

culture.

METHOD AND MATERIAL

This research method examines problems based on jurisdictive normative. In the

form of research carried out by way of peeling and concluding guidelines from the various

explanations in several secondary data sources that are all relevant to the problems to be

discussed, and using three kinds of approaches, namely: statute approach, conceptual

approach, and case approach. This research is in the form of literature search using various

search engines such as Google Scholar. The search terms used are ["Traditional Law" OR

"Customary Law" AND "Implementation" AND "History" AND "Indonesia"]. All literature

search results are analyzed and summarized in this journal (Ibrahim, 2006).

RESULTS AND DISCUSSION

1. The Concept of Customary Law according to the Scholars

Customary law is a term given by legal scientists in the past to groups, guidelines,

and facts that govern and order the Indonesian people's lives. At that time, scientists

saw that the Indonesian people, who lived in remote areas, lived in order and lived in

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an orderly manner based on the rules they made themselves (Koesnoe, 1979).

The term customary law is a translation from the Dutch language, namely Adat

Recht. This term is contained in the book De Atjehers (People of Aceh), compiled by

Snouck Hurgronje in 1893. The name was later used by Van Vollenhoven, who was

very intense in researching customary law, and until now, the term customary law has

always been used. Is used as a juridical technical term. Currently, customary law is still

in development, so it cannot be denied that there are different opinions in understanding

and interpreting customary law, both from Western scholars and Indonesian scholars

(Bushar, 1994).

According to Van Vollenhoven, customary law is the law that does not originate

from the regulations made by the former Dutch East Indies government or other

instruments of power which became themselves and were held by the Dutch authorities

themselves and applied to natives and Eastern people Foreigners. Furthermore, he

argued that to distinguish between adat and adat law is seen from the elements so that

not all adat is customary law. The only adat has sanctions, which can be classified as

customary law (Wignjodipuro, 1982).

Van Vollenhoven's opinion received responses from other everyday law

scholars, mainly because of sanctions as a distinguishing criterion between custom and

customary law. Sanctions in the western legal system are the main feature of the law,

so if sanctions are used as the only feature to distinguish between the terms adat and

adat law, then it is very appropriate.

In customary law, sanctions (in customary law are often referred to as

punishment) are not very urgent because, in customary law, discipline is an effort to

restore the balance that was disturbed because of a violation committed by someone in

the community. The rectification of the law has been violated and restored to its

original balance, which means no more problems (Soepomo, 2000).

Indonesian scholars' view in understanding customary law has experienced

development with the awareness of having its law encouraging scholars to carry out

research to determine new definitions of customary law. One of them was proposed by

Supomo; customary law is defined as a law that is not written in legislative regulations,

which includes living regulations which, although not stipulated by the authorities, are

obeyed and supported by the people based on the belief that these regulations have

legal force. This understanding is reinforced by Sukanto's opinion, which states that

customary law is a complex of time-honored traditions that are mostly unconfirmed,

uncodified, coercive in nature, witnesses, and have legal consequences. From the two

opinions above, it can be concluded that customary law is an unwritten law in social

life and the constitutional field.

2. Legal Basis of Adat Law in Indonesia

To explain the legal basis for applying customary law in Indonesia, ideally, we

know the juridical basics of using customary law, from the colonial era to the next to

the present (Hadikusuma, 1992).

In the Dutch colonial period, the first source of direction to look at was article

75 of the new Regerings Reglement (RR), which took effect on January 1, 1920, which

stated that European law would apply to European groups and apply to European Laws

and Indigenous Indonesians but declared voluntary that he would submit to European

law. Whereas in the civil field for other groups of Indonesians, customary law will

apply provided that it does not conflict with the principles of justice that are generally

recognized. Conversely, suppose the rule of ordinary law conflicts with the principles

of justice or a problem that is not regulated in customary law. In that case, the judge

must use European civil law's general foundations as a guide. Article 75 RR is

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reinforced by article 130 IS, which states that regions are given the freedom to follow

their rules.

After Indonesia's independence on August 17, 1945, the following day, on

August 18, 1945, the 1945 Constitution was enacted. All existing state agencies and

regulations are still valid, as long as a new one has not been established according to

the Constitution.

In the early days of independence, an understanding emerged that wanted to fight

to realize national law by lifting people's rule, namely customary law, into federal law.

The pioneers of this idea are the majority of the old group, an idea put forward by the

previous generation of nationalists, which stated that customary law deserves to be

appointed as modern national law (Wignjodipuro, 1982).

In the 1945 Constitution, there is no single article explicitly stating the

application of customary law in Indonesia. This is different from the Constitution of

the United States of Indonesia, which constitutionally can find items that are the legal

basis for applying customary law, as stated in article 146 paragraph (1), which states

that judicial decisions must contain reasons case of punishment. Must mention

statutory rules and customary law rules on which the sentence is based. Article 146

paragraph (1) the Constitution Republic of the United States of Indonesia is reaffirmed

in Article 104 (1) of the Provisional Constitution of 1950.

The standard configuration has changed, and customary law is an organic part of

state law. This realization is contained in Law Number 4 of 2004 concerning Judicial

Power, which is regulated in article 25 paragraph (1), which states that all court

decisions other than must state the reasons and basis for a said decision, also contain

specific pieces of the relevant laws and regulations or an unwritten source of direction

which is used as a basis for judging. This article is strengthened by article 28, which

states that judges are obliged to explore, follow and understand traditional values and

a sense of justice that lives in society.

From the 2 (two) articles mentioned above, it can be concluded that implicitly

customary law can be used as the basis for judges in adjudicating and deciding cases

in Court because what is meant by the unwritten source of direction in article 25

paragraph (1) is customary law. And what is meant by traditional values and a sense of

justice in society, one of which is established law, assuming that customary law is a

law that grows and develops in the community? These two articles give judges the

authority to decide cases based on customary law.

3. The existence of customary law in the national law system

Customary law grows from the ideals and thoughts of the Indonesian people.

Thus, customary law can be traced chronologically since Indonesia consisted of

kingdoms scattered throughout the archipelago. The socio-cultural reality is

constructed by one poet, been built by another, and reconstructed by the next poet.

Sriwijaya period, ancient Mataram, Majapahit period, several inscriptions

(inscriptions) describe the development of applicable law (original law), which has

regulated several fields, including 1.Regulations of religious, economic, and mining

regulations, contained in the King Sanjaya Inscription in 732 at Kedu, Central Java; 2.

Arranging religion and work, contained in the inscription of Raj Dewasimha in 760; 3.

The Law of Land and Agriculture is found in the Raja Tulodong Inscription, in Kediri.,

784 and the inscription of 919, which contains government positions, the king's right

to land, and compensation; 4. The law regulates civil justice, contained in the Bulai

Rakai Garung inscription, 860. 5. The King's order to formulate customary rules, in the

Darmawangsa inscription in 991; 6. During the Airlangga era, there was the

determination of a royal seal emblem in the form of a Garuda bird's head, construction

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of trade with special rights, determination of income tax that had to be collected by the

central government; 7. The Majapahit period, seen in the administration and state

administration of the Majapahit kingdom, the division of government institutions and

bodies (Rato, 2011).

After the fall of Majapahit, the Mataram kingdom was heavily influenced by

Islam. Hence the name is as Court, which provided consideration for the Sultan to

decide cases. The interior is known as a "solid" judiciary, namely the settlement of

disputes between individuals by the village court, carried out peacefully. At the same

time, Cirebon is known for: the Religious Court deciding cases endangering the general

public, the Digrama Court, which decided against customary violations, and other

issues that did not enter the religious Court; and Cilaga Court is a court in the fields of

economy, trade, buying and selling, and accounts payable.

Some examples mentioned above show that the original legal system has been

effective in various regions, which is now known as Indonesia, shows that the law

originates from the indigenous people, both in the form of decisions by the authorities

and regulations that apply in the local community.

A. Dutch Indies Politics Against Customary Law

Initially, the original community law known as customary law was left as it

was. However, the following developments in the VOC era can be noted: 1. Its

attitude was not always fixed (depending on the VOC's interests) because it did not

interest the original Court; 2. The VOC did not want to be burdened with

unnecessary administrative problems concerning native courts; 3. As for the

foremost institutions, the VOC depended on needs (political opportunities); 4. The

VOC only interfered in criminal matters to uphold public order in society; 5.

Against civil law submitted, and let customary law remain in effect. During the

Dandelions era, customary criminal law was changed to a European pattern, when:

a. The criminal act committed has the effect of disturbing the public interest; b. If

prosecuted based on customary criminal law, an illegal act can result in the

offender being free (Setiady, n.d.).

The development of customary law during the Daendels period had the same

fate as previous times, namely European law's subordination. The exception is civil

law. Including civil law and commercial law, Daniel continues to leave it as it is

according to their respective customary laws. Apart from that, the VOC considered

that customary law was inferior to Dutch law. So during the British colonial period

(Raffles), the thing that stood out was the freedom in direction and the judiciary to

apply customary law provided that the provisions of ordinary law did not conflict

with: the universal and acknowledged principles of natural justice or admitted

principles of substantial justice. In further developments, customary law politics

appeared in the Dutch colonial government, when the political unification of law

and codification of law was initiated through the Scholten Committee, including

Algemeene Bepalingen van Wetgeving Voor Nederlands Indie (AB), General

Provisions regarding statutory regulations in the Balanda Indies; Burgerlijke

Wetboek, Wetboek van Koopenhandel; regimen op Rechtelejke Organisatie en het

beleid de justice (RO).

So in its development, a unification was formed in the regulation of criminal

law for European, Foreign Eastern, and Indigenous groups, with the formation of

Wetboek van Strafrecht (WvS), as an imitation of the Netherlands (1881), which

imitated Belgium, applied to European groups with Stb 1866: 55 and applied to the

Group Indigenous and Foreign East with Stb 1872: 85 which came into effect on

January 1, 1873. The process of codification and unification, then customary law,

except about public order with the codification of criminal law, is not concerned

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with its regulation so that the reference of customary law is article 11 AB: Except

in the case of indigenous people or their equivalents (foreign easterners)

voluntarily obeying the rules of European civil and commercial law, or in cases

that apply to them such laws, or regulations. Other laws, the applicable laws, and

those treated by indigenous judges (Inlandse Recht er) for them it is godsdienstige

Wetten, volkintellingen en gebruiken, as long as it does not contradict the generally

accepted principles of justice.

Article 11 AB applies the concordance principle, which applies Dutch law

to European groups in the Dutch East Indies, concerning customary law, indicating

that customary law applies to non-European population groups, except 1.

Voluntarily obey civil regulations and commercial laws applicable to European

groups; 2. The legal requirement requires compliance with European civil law and

commercial law; 3. Their needs require submission to other laws.

At this time, the law was considered to exist if it was regulated in law, as a

statutory law which indicated the Austinianism was followed, as stipulated in

Article 15 AB (Algeme Bepalingen van Wetgeving), which stated: except existing

regulations, for Indonesians genuine and for those who are likened to it, custom

can only be called law if the law calls it.

Thus it becomes clear that what makes the criteria and criteria apply and

hence the development of customary law is not the community - where the place

to produce and enforce the law exists itself - but is another law made by the

(colonial) ruler, as evident in article 11 AB and item 15 of the AB.

B. Customary Law in the Period of Independence

Referring to the definition of customary law as stated by Soepomo, the

traditional law for formation can be through the Legislative Body, through the

Court. Law is a unitary norm that is rooted in values. However, customary law and

law in particular according to their character, there are: Customary law has a

neutral name, and customary law has a non-neutral character because it is closely

related to religious values (Wulansari, 2010).

This distinction is essential to understand the formation or change of laws

that will apply in society. Neutral law - traffic law - is a law that is relatively loosely

related to the religious values of indigenous peoples' composition. This results in

legal changes, including neutral rules that are easy to form, and legal guidance is

carried out through the formulation of statutory law (legislation). Whereas

customary law is closely related to religious values - because it is relatively not

easy to integrate nationally, its guidance and formulation in a positive direction are

carried out through jurisprudence.

Customary law by western experts is understood based on two wrong

assumptions. First, customary law can be understood through written materials,

studied from original records, or based on religious laws. Second, that customary

law is systematized in parallel with western laws. As a result of this understanding

with the West's paradigm, customary law is misunderstood with all the

consequences that accompany it, evident in subsequent developments during the

independence era.

C. Customary Law in the Constitution

Our pre-amendment Constitution does not explicitly show us the recognition

and use of the term customary law. However, when examined, it can be concluded

that the formulations contained in it contain noble values and the soul of customary

law. The preamble to the 1945 Constitution, which includes the Pancasila view of

life, reflects the national personality, which lives in values, thought patterns, and

customary law. Article 29 paragraph (1) The state is based on the One Godhead,

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Article 33 paragraph (1) The economy is structured as a joint effort based on the

principle of kinship (Sutiyoso, 2010).

At a practical level, based on the 1945 Constitution, the state introduces a

right called the State's Ownership Rights (HMN), this is derived from Ulayat

Rights, Land Rights, which are traditionally recognized in customary law. In the

Constitution of the Republic of the United States of Indonesia, article 146

paragraph 1 states that all judicial decisions must contain the reasons thereof and,

in cases, must state the statutory regulations and customary law rules which are

used as the legal basis. Furthermore, in the Provisional Basic Law, article 146

paragraph 1 reloaded. Thus the judge must explore and follow the feelings of

justice and justice of the always developing people. In article 102 and taking into

account Article 25 of the 1950 Provisional Constitution of the Republic of

Indonesia, the ruler is ordered to codify the law. So this includes customary law.

In his opinion, this codification order also applies to established law. This

codification order is the first time mentioned in the Republic of Indonesia's Laws

and Regulations, which regulate provisions on customary law's codification. In

reality, it cannot be implemented.

With the Presidential decree of July 5, 1959, the 1945 Constitution was

reinstated; there were four main points in the preamble of the 1945 Constitution,

namely the unity of the entire Indonesian nation. This also includes the field of

law, which is called national law. The second principle of thought is that the state

wants to achieve social justice. This is different from legal justice. So the principles

of human social function and property rights in realizing this become important to

be discovered and adjusted to society's demands and development while still

deriving their primary values. The third point of thought is that the state realizes

its sovereignty based on democracy, deliberation, and representation. This premise

is fundamental and essential; there is a unity between the people and their leaders.

The leader must understand traditional values and feelings and political feelings

and contribute to carrying out public interests through public policymaking. In that

connection, this is necessary. A human character who is a public leader who is

brave, wise, fair, upholds the truth, has a soft feel, and is humane. The fourth point

of thought is: the state is based on One Godhead; this requires that the ideals of law

and society must always be linked to human functions, the organization has faith

and devotion to God Almighty, and the state recognizes God as the determinant of

all things and the direction of the state only. -the eye as a means of carrying humans

and society as a function must always be with the vision and intention of obtaining

God Almighty's pleasure. However, after the amendment of the Constitution,

customary law is recognized as stated in the 1945 Constitution Article 18D

paragraph 2 states: The State recognizes and respects the unity of indigenous

peoples and their traditional rights as long as they are still alive and following the

development of society and the principles of the Unitary Republic of Indonesia,

which is regulated in law.

They understand the formulation of Article 18 d of the 1945 Constitution: 1.

The Constitution guarantees the unity of indigenous peoples and their traditional

rights; 2. The guarantee of the Constitution as long as the customary law is still

alive; 3. Following the development of society; 4. Following the principles of the

Unitary State of the Republic of Indonesia; and 5. It is regulated by law.

Therefore, this Constitution guarantees the recognition and respect of

customary law if it meets the following requirements: Reality requirements,

namely customary law is still alive and following the development of society;

Ideality Requirements, namely following the principles of the unitary state of the

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Republic of Indonesia, and enforceability is regulated in law.

The statutory law is under the Decree of the People's Consultative Assembly

of 2001. The statutory order is the 1945 Constitution; Decree of the People's

Consultative Assembly; Law / Peru; Government regulations; Local regulation.

This does not provide a proper place for customary law as a source of statutory

law, except for customary law in the form of customary law formally recognized

in legislation, customs, judges' decisions, or scholars' opinions.

D. Customary Law in Emergency Law Number 1 Of 1951

Customary law in Emergency Law No.1 of 1951, contained in article 1 and

article 5. Article 1 is affirmed. Except for the village court, all court bodies which

include the governing body of the self-governing Court (Zellbestuurrechtspraak)

except for the religious Court if according to living law it is a part of the self-

governing Court and customary Court (Inheemse rechtspraak in rechsreeks

bestuurd gebied) except for the ecclesiastical Court if the Court according to the

living law, it is a separate part of the Customary Court which has been abolished

(Manarisip, 2012).

Article 5 paragraph (3) Sub-b Civil material law and for the time being the

civil, unlawful material law, which until now applies to self-governing regional

subjects and people previously tried by a customary court, continues to apply to

traditional residents and people. Those with the meaning: ... an act which according

to living law must be considered a criminal act but which has no comparison in the

Civil Criminal Code, shall be regarded as punishable by a sentence of not more

than 3 (three) months imprisonment and a fine of five hundred, namely as a

substitute penalty if the customary punishment imposed is not followed by the

convicted party ... Whereas if the customary law passed in the judge's mind exceeds

the sentence with imprisonment or a fine, ... then a substitute penalty of as high as

10 (ten ) years in prison, with the understanding that customary law according to

the judge's performance is no longer in harmony with the times ... According to

law, the current is considered a criminal act comparable to the Civil Criminal Code;

it is considered to be threatened with the same direction as the comparative law,

which is most similar to the show.

This provision seeks to abolish the customary criminal law and its sanctions

for natives and foreign easterners with ordinary criminal justice. The general Court

only administers it, religious Court and village court (village peace judge). Thus,

since the issuance of Emergency Law Number 1 the Year 1951, customary criminal

law has no place because it is very limited in the legal politics of the Unitary State

of the Republic of Indonesia. In Article 2 of the Regulation of the Minister of

Agrarian Affairs / KBPN No. 5/1999 on Guidelines for the Resolution of

Customary law communities' layout rights, it is stated: 1. The implementation of

layout rights as long as they still exist by the customary law community concerned

according to local standard law provisions. 2. The legal rights of everyday law

communities still exist if: a. there is a group of people who still feel bound by their

ordinary law order as members of a specific legal association, who recognize and

apply the association's provisions in their daily life; b. there is certain customary

land that becomes the living environment of the legal association members and

where they take their daily needs of life, and; c. There is a standard law order

regarding the administration of control and use of customary land that is valid and

obeyed by the legal association members. d. Customary Law in Law No. 5 of 1960

concerning Basic Agrarian Regulations.

Customary law in Law Number 5 of 1960 is a straightforward arrangement

with indigenous peoples. In article 5 of Law Number 5 of 1960, it is emphasized:

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the agrarian law that applies to the earth, water, and space is customary law, as

long as it does not conflict with national and state interests based on national unity,

with Indonesian socialism and the regulations contained in the law. This law and

other statutory regulations, everything with due regard to the elements from

religious law. In the Elucidation of the Law, it is stated: Customary law which is

refined and adjusted to the interests of the community in a modern state and

international relations and accordance with Indonesian socialism. This provision

realizes the Decree of the People's Consultative Assembly II / MPRS / 1960

Attachment A Paragraph 402.

4. The Position of Customary Law in the Development of Jurisprudence

Justice seekers (justiciable) certainly desire that cases submitted to Court can be

decided by judges who are professional and have high moral integrity. They can

produce decisions that contain aspects of legal certainty and guarantee justice for

everyone. Because justice is the main goal to be achieved from the dispute resolution

process in Court (H & Fausan, 2004).

Jurisprudence, derived from the Latin word: yuris prudential, technically means

permanent justice or law. Jurisprudence is a judge's decision (judge-made law)

followed by other judges in a similar case. The judge's decision becomes permanent so

that it becomes a source of direction called jurisprudence. In practice, jurisprudence

functions to change, clarify, erase, create or strengthen laws that have lived in a society.

Furthermore, according to Fockema Andrea, judicial jurisprudence (in general terms,

the meaning of abstract); especially the traditional teachings that are formed and

defended by the courts (as opposed to the instructions or doctrines of leading authors),

further systematic gathering of Supreme Court decisions and High Court decisions

(recorded) which are followed by judges in giving their judgments in similar matters.

In customary law, legal jurisprudence, apart from being a court decision that has

become permanent in the field of customary law, is also a means of fostering customary

law, according to legal ideals, as well as from the jurisprudence from time to time,

developments in customary law can be traced, both those is still local and has been in

effect nationally. The result of customary law through jurisprudence will provide

knowledge about the shift and growth of customary law, the weakening of local

customary law, and customary law, becoming nationally binding and binding. The

development of customary law through jurisprudence can be traced in several ways,

including: Principles of Customary Law. Customary law, among others, rests on the

principle: harmonious, proper; this is confirmed in the jurisprudence of the Supreme

Court of the Republic of Indonesia Number: 3328 / Pdt / 1984 dated April 29, 1986. In

the Decision of the Supreme Court of the Republic of Indonesia Number 2898 K / Pdt

/ 1989 dated November 19, 1989, based on a customary dispute that arose at the

Kefamenanu Court, East Nusa Tenggara, the Supreme Court emphasized: "In facing a

civil lawsuit case whose foundation and penitentiary foundations are based on

violations of customary law and the affirmation of customary sanctions; If in Court the

plaintiff can prove his claim, the judge must apply the customary law regarding the

article which is still valid in the area concerned, after hearing the customary local

elders. Other legal principles: "Settlement of violations of customary law, apart from

the civil lawsuit mentioned above, can also be pursued through criminal prosecution in

article 5 paragraph 3b of Law Number 1 the Year 1951 Emergency".

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CONCLUSION

Customary law is an unwritten rule that lives in the orthodox community of an area

and will remain alive as long as the community still fulfills the established law passed on to

them from their ancestors before them. Therefore, customary law and its position in the

national legal system cannot be denied even though customary law is not written. Based on

the principle of legality, it is illegitimate. Customary law will always exist and live in society.

Customary law lives in the community's conscience, reflected in their patterns of

action following their customs and socio-cultural practices that do not conflict with national

interests. The current era can indeed be called the age of the awakening of indigenous

peoples, marked by the birth of various policies and decisions. However, what is equally

important is that it needs further study and development with its implications in the

formulation of national laws and law enforcement efforts that apply in Indonesia.

BIBLIOGRAPHY

Bushar, M. (1994). Azas-Azas Hukum Adat: Suatu Pengantar. Pradya Paramita.

H, A. K., & Fausan, M. (2004). KaidahKaidah Hukum Yurisprudensi. Prenada

Media.

Hadikusuma, H. (1992). Pengantar Ilmu Hukum Adat. Mandar Maju.

Ibrahim, J. (2006). Teori dan Metodologi Penelitian Hukum Normatif. Bayumedia

Publishing.

Koesnoe, M. (1979). Catatan-Catatan Terhadap Hukum Adat Dewasa Ini.

Airlangga University Press.

Manarisip, M. (2012). Eksistensi Pidana Adat dalam Hukum Nasional. Lex Crimen,

1(4), 39.

Rato, D. (2011). Hukum Adat (Suatu Pengantar Singkat Memahami Hukum Adat

di Indonesia). Laksbang Pressindo.

Setiady, T. (n.d.). Intisari Hukum Adat Indonesia (Dalam Kajian Kepustakaan).

Alfabeta.

Shofiyatul Azmi. (2018). Pendidikan Kewarganegaraan Merupakan Salah Satu

Pengejawantahan Dimensi Manusia Sebagai Makhluk Individu, Sosial,

Susila, Dan Makhluk Religi. Jurnal Ilmiah.Fakultas Keguruan Dan Ilmu

Pendidikan, 18(1), 77–86.

Soekanto, S. (2000). Pokok-Pokok Sosiologi Hukum (1st ed.). Raja Grafindo

Persada.

Soepomo, R. (2000). Bab-Bab Tentang Hukum Adat. Pradya Paramita.

Michelle Angelika S, Yohanes Firmansyah, Yana Sylvana dan Hanna Wijaya/Cerdika: Jurnal

Ilmiah Indonesia 1(4), 392-402

- 402 -

Sumarman, A. (2003). Hukum Adat Perspektif Sekarang dan Mendatang. Adi Cita

Karya Nusa.

Sutiyoso, B. (2010). Reformasi Keadilan dan Penegakan Hukum di Idonesia. UII

Press.

Wignjodipuro, S. (1982). Pengantar dan Azas-Azas Hukum Adat. Gunung Agung.

Wulansari, D. C. (2010). Hukum Adat Indonesia Suatu Pengantar. PT. Refika

Aditama.