Customary law in general itself is a customary law, which means that the law contains rules that are made or formulated based on the behavior of the community that grows and develops so that it becomes an unwritten law that is obeyed by the local community.
Customary law itself is also recognized by the state as a legal form of law. Where, after the independence of the Indonesian state, customary law became one of several rules made and contained in the 1945 Constitution.
As is written in Article 18B paragraph 2 of the 1945 Constitution, which explains that Indonesia as a country recognizes and respects customary law community units and their traditional rights as long as they are still alive and in accordance with community development and also the principles of the Unitary State of the Republic of Indonesia or the Unitary State of the Republic of Indonesia, as is the case with regulated in law.
This law can also be said to be one of the oldest laws when compared to other legal systems in Indonesia because it has been passed down from generation to generation by the people.
Consider the following information to better understand what is meant by customary law as unwritten law.
Definition of Customary Law According to Legal Experts
1. Mr. B. Terhaar Bzn
According to Prof. Mr. B. Ter Haar Bzn, customary law is the entirety of regulations that are embodied in decisions taken by customary heads and apply spontaneously to the people within them.
He through his well-known “Decision” theory also stated that in looking at whether an existing custom is a customary law, it is first necessary to look at the attitude of the rulers of the legal community towards those who violate existing regulations.
2. Prof. Mr. Cornelis van Vollen Hoven
The definition of customary law according to Prof. Mr. Cornelis van Vollen Hoven is the overall rules of behavior of a society that apply and have sanctions and also have not been codified.
3.Dr. Sukanto, SH
Furthermore, the definition of customary law according to Dr. Sukanto, SH is a customary complex which is generally not written down or written in the Bible, not codified and has a coercive nature. This law also has sanctions, therefore there are also legal consequences.
Sukardi in his book The Indonesian Legal System also explains, customary law is the entirety of rules and norms whether made in writing or not in writing and originating from the habits of the Indonesian people or customs which are used to regulate the behavior of people’s lives, sanctions will also be imposed on those who who broke it.
5. Mawardi Muzamil and Anis Mashdurohatun
Furthermore, former Professor of Customary Law at Airlangga University, Mawardi Muzamil and Anis Mashdurohatun through their book entitled Comparison of Legal Systems also explains the definition of customary law as a legal system that exists and has long been in force in Indonesia.
6. Mohammad Koesnoe
Mohammad Koesnoe also said that the origin of the existence of customary law itself in Indonesia is not known with certainty. However, when compared to other forms of law, such as Western law and also Islamic law, this law is the oldest form of law based on its age.
Where, prior to 1927, customary law existed and developed in Indonesian society. Until after 1927, customary law was finally studied and paid close attention to as the implementation of the Dutch government’s legal politics, after the existing reception theory was confirmed in article 134 paragraph 2.IS 1925.
Sources of Customary Law
There are 3 forms that become a source of law on this one, as follows.
1. Source of Identification
First, the source of identification, according to B Ter Haar, is the decision of the customary ruler. However, this statement was denied by Mohammad Koesnoe. Where, according to him, the source of identification in customary law itself is what is actually carried out by the local community in the association of law, both behavior or behavior that is only done once or repeatedly.
2. Content Sources
Second, content sources. This source of customary law is legal awareness that exists and lives among local indigenous peoples.
3. Source of Binder
Third, the binding source is the shame that arises as a result of the functioning of the existing value system within the indigenous peoples concerned as well as various other efforts that will ultimately affect the person concerned if he does not comply with or violates the applicable customary rules and laws.
Based on this, it can also be said that the binding force that exists in customary law is the legal awareness possessed by members of the indigenous peoples concerned.
Elements of Customary Law
This unwritten legal element is divided into two, as follows
1. Material Elements
The first element is the material element which indicates that in customary law there are habits and behaviors that are fixed and carried out repeatedly. This also means that a series of the same behavior.
2. Intellectual Elements
The second element is the intellectual element which indicates that in customary law there are habits that must be carried out because the community groups within them have the belief that this is done objectively.
Indonesian Customary Law style
There are also certain features in customary law in Indonesia, as follows.
1. Relegiues – Magical
The first livery is Magical Relegiues. Based on the traditional beliefs of the Indonesian people, every existing society is surrounded by supernatural powers that must be maintained. This is done so that the community continues to live safely, peacefully, happily and various other things.
Apart from that, there is also nothing that separates the world of birth and the world of the unseen and there is also no separation between the various fields of life, such as human life, nature, ancestral spirits and the lives of other creatures.
The existence of worship performed on the spirits, especially to the ancestors is done as a protector of customs that needs to be done for the happiness of the people in it.
In every joint activity or action, such as clearing land, planting, building houses and various other important events, religious ceremonies must also be held with the aim of receiving blessings and in the process there are no obstacles and can run well.
Magical Relegiues itself also has several other meanings, as in the following.
- Has the nature of inner unity
- There is unity between the world of birth and the world of the unseen
- There is a connection with the spirits of the ancestors and other spirits
- Belief in the presence of supernatural powers
- Performing worship of ancestral spirits
- In starting each activity, a religios ceremony must always be carried out
- Believing in the presence of spirits, ghosts that exist in the universe
- Believe in the existence of sacred power
- There are several restrictions
2. Communal or community
The second pattern is communal or societal which means that human life is always seen in the form of a group or a unified whole.
An individual cannot live alone and needs other individuals because humans are living beings who will always live in society. Therefore, common interests must take priority over personal interests.
Communal or community itself also has several other meanings, as follows.
- Humans in society have a bound nature and are not free from all their actions
- Everyone in society has rights and obligations according to their position
- Existing subjective rights have a social function
- The common interests of society must take precedence over personal interests
- Have a cooperative nature
- Value courtesy and patience
- Have a good attitude
- Have mutual respect for one another
The third style is democracy, which means that everything must be resolved by upholding the values of togetherness and the common interests of the community must be prioritized over personal interests in accordance with the principles of deliberation and representation in the government system.
As an example itself, holding meetings at the Village Hall and every action or choice taken by the village official is based on the results of the deliberations that have been carried out by the community.
The fourth pattern is cash. Where the transfer or transfer of rights and obligations must be carried out at the same time and carried out simultaneously with the intention of maintaining the balance that exists in the association in society.
5. Be concrete
The fifth pattern is concrete, which means that there is a visible sign, that is, every action or desire in a certain legal relationship must be expressed in terms of objects or tangible or tangible forms.
This also means that no promises are paid for with promises, everything that is done must have concrete actions so that no suspicion arises between one another.
Forms of Customary Law
This one law itself is different from the various legal systems that apply and develop in Indonesia, where customary law itself is an unwritten law that grows and develops along with the development of the people in it.
Attempts were made to make several existing customary laws into statutory laws and this also meant trying to change these unwritten laws into written laws.
As one example, the Basic Agrarian Law in 1950. However, after being converted into a written form, the customary law has a different form from the previous customary law.
Factors Influencing the Development of Customary Law
In the development of customary law, there are several traditional factors that can influence its development, as follows.
1. Magic and animism
The first factors of developmental influence are magic and animism. Where in nature magical thoughts and animism are basically felt by every nation in all parts of the world.
In Indonesia itself, the magical factor and also animism have a considerable influence. Where, this itself can be seen through various traditional ceremonies that have a source of power and also supernatural powers.
- Belief in spirits, spirits, and ghosts that fill the entire universe as well as various natural phenomena, as well as all objects in the universe has real.
- Belief in the power of magic and the existence of good and evil spirits.
- There are certain people who can make contact or relate to the supernatural or magical world.
- Fear of punishment or retribution from various supernatural powers. Where, this itself can be seen through the custom of broadcasting, offerings in several places that are considered by the local community as sacred places.
Animism itself is the belief that everything in the universe has a soul. Animism itself is divided into two kinds, as follows.
- Fetishism, which is the worship of the soul in the universe, which is believed to have far greater abilities than humans, such as the sun, ocean, lightning, caves, typhoons, land, big trees, and many more.
- Spiritism, which is the worship of ancestral spirits and other spirits that are considered good or those that are considered evil.
2. Religious factor
The second developmental influence factor is the religious factor. The inclusion of various religions into Indonesia also had an influence on the development of this law, as follows.
Hinduism itself was first brought into Indonesia by Indonesians in the 8th century and the influence of Hinduism itself is most visible in Bali.
Where, various Hindu religious laws themselves had an influence on the field of government of the King and the division of society into several castes.
The Islamic religion itself was brought by traders from Maaka in the 14th and early 15th centuries. The influence of the Islamic religion itself can be seen through the marriage law which discusses how to enter into and terminate a marriage.
The influence of the Islamic religious marriage law itself can also be seen through the customary laws that exist in several areas of Indonesia such as Java and Madura.
In Aceh, the influence of Islam is very strong. However, this influence itself varies depending on the region, as is the case in several regions, even though Islamic marriage law has been enacted, they still carry out marriage ceremonies based on customary law. For example in Lampung, Tapanuli.
Christianity itself first entered Indonesia brought by Western traders. Where, the rule of Christian religious law itself has a considerable influence in Indonesia on the influence of family law and also marriage law.
In addition, Christianity also has a great influence on the social field. In particular, it can be seen from the impact on education as well as health, with the establishment of various educational institutions and hospitals.
3. Higher Power Factor
The third developmental influence factor is higher power. What is meant is the existence of the power of the king, head of the Curia, Nagari, and various other matters.
4. The presence of foreign powers
The fourth developmental influence factor is the presence of foreign powers. One of them was the Dutch colonial power which brought individualism into Indonesia. Where, this itself is contrary to the traditional mind that upholds the value of togetherness.
Well, that’s a brief explanation regarding customary law which is a form of unwritten law. As explained above, even though this one law is not officially written, it sometimes has the nature of being coercive to the people who live in it.
This is because the indigenous peoples who live in it also have confidence in the law so they obey it and believe they will receive sanctions if the law is not implemented and violated.