Sacred and secular laws : a study of conflict and resolution in Indonesia

• Main Author: Lukito, Ratno, 1968-
• Format: Others
• Language: en
• Published: McGill University 2006
• Subjects: Legal polycentricity > Indonesia.; Adat law > Indonesia.; Islamic law > Indonesia.; Civil law > Indonesia.
• Online Access: http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=102778

This thesis investigates the history and phenomenon of legal pluralism in Indonesia. The need to explore this topic has been urged by the revival there of Islamic law and adat law, the two greatest non-state normative orderings, in the last two decades. At the same time the ideal of modernity in Indonesia has been characterized by a state-driven effort in the post-colonial era to make the institution of law an inseparable part of national development. The result has been a conception of law as a homogenous system in which the ideology of legal positivism represents the basic tool for lawmaking. This, however, has led to an impasse, seeing that pluralism and multiculturalism are in fact self-evident phenomena in the society. The state has been obliged, therefore, to accommodate these non-state normative orderings. === The discussion of Indonesian legal pluralism in this thesis focuses on understanding the state's attitude and behavior towards the three largest legal traditions currently operative in the society, i.e., adat law, Islamic law and civil law. Socio-political factors are shown to have much influenced the relations between state and non-state laws. The state's strategy of accommodation of legal pluralism has in fact largely depended on the extent to which those legal traditions have been able to conform to national ideology. Certain "national legal postulates" have functioned as a yardstick by which the country's legislative and judicial institutions have measured the extent of their accommodation of legal pluralism, although they have had little choice but to do so. === Influenced by Masaji Chiba's theory of "three levels of law" (i.e., official law, unofficial law and legal postulates), this thesis analyzes two aspects of legal pluralism in Indonesia: the political and "conflictual" domains of legal pluralism. The analysis is thus generally based on the state policy of legal pluralism reflected in the legal and political strategies confronting the issue of unofficial laws as well as the conflicts arising from such situations. The first aspect is addressed by looking at a number of statutes and regulations promulgated specifically to deal with Islamic law and adat law, while the second is analyzed in terms of actual cases of private interpersonal law arising from conflict between state and non-state legal traditions, as reflected in legislation and court decisions. From a discussion of these two aspects, the thesis concludes that, although the form of the relations between official and unofficial laws may have changed in conjunction with the socio-political situation of the country, the logic behind legal pluralism has in fact never altered, i.e., to use law as a tool of state modernism. Thus conflicts arising from the encounter between different legal traditions will usually be resolved by means of "national legal postulates," making the unofficial laws more susceptible to the state's domination of legal interpretation and resolution.