Understanding the Definition of Customary Law and Examples in Indonesia

Understanding the Definition of Customary Law and Examples in Indonesia-  Every action that is committed always contains a cause-and-effect relationship that is obtained when someone does it. There is even the term “dare to do, must dare to take responsibility” as a consequence that is obtained for whatever has been done.

Receiving punishment or sanctions is the result of an act committed by someone who has made a mistake. Because of the mistakes they have made, they are rewarded in the form of punishment or sanctions. The punishment or sanction also has various variations according to the actions committed. And, a good law is one that gives fair punishment according to the actions of the perpetrators.

Of the various forms of punishment that exist to process a person’s wrongdoing, there is what is known as customary law. Customary law itself can generally be interpreted as a punishment given in accordance with customs based on local regional regulations that are mutually agreed upon by the residents.

For this reason, Sinaumed’s friends who want to know more about what customary law is and how it works, especially in Indonesia, in this discussion we have summarized information about this customary law.

Furthermore, we have summarized information regarding customary law and can be listened to below!

Definition of Customary Law

Customary law or traditional law is customary law which refers to rules that bind the community, which are unwritten and arise from practices that grow and develop from certain customary law communities. Indonesian customary law that applies today is customary law that existed before 1808 AD. when Thomas Stamford Raffles made changes, namely “rules that are unwritten and become guidelines for all Indonesian people and are followed by Indonesian people in everyday life and society. And is a benchmark from the group to the various guidelines and facts that regulate and publicize the lives of Indonesians.

The term “customary law” comes from the Dutch word, namely adatrecht.

Customary law is a cultural product that includes cultural values ​​of creativity, intention and human feelings. In other words, law was born from awareness of human needs and the desire to live in a just and civilized manner as a manifestation of human civilization.

On the other hand, customary law is also interpreted as a form of cultural ideas, consisting of cultural values, norms, laws and rules, which are interconnected and form a system and have very strong real sanctions.

The practice of customary law (common law) is a mature pattern of behavior that can be objectively verified within the social environment of the local community. Lawsuits can be filed to defend “what the judge has always done and accepted”.

Most customary law concerns social norms established in a particular place. However, this concept can also be applied to areas of domestic and international law where certain norms have become almost universal for accepting the right course of action – such as laws on anti-piracy or anti-slavery devices.

In many cases, although not in all cases, customary law has legal decisions in favor of jurisprudence and common law which have evolved over time to give their rules additional weight as statutes and also to show the evolution of the interpretation of statutes. That’s from the court in question.

Customary law is often called common law or common law.

In Indonesia, customary law is official law and is recognized as applicable law. After Indonesian independence, several provisions were made and included in the 1945 Constitution, one of which was a general law.

This is reflected in Article 18B paragraph 2 of the 1945 Constitution which reads:

“The state recognizes and respects the units of ordinary people and their traditional rights as long as they are still alive and in accordance with the principles of development and progress of society. The State Council of the Republic of Indonesia is regulated by law”

In addition, customary law also has other meanings that are interpreted by experts. Prof. Mr. According to B. Terhaar Bzn, customary law is a set of rules stated in the decisions of traditional leaders and applied spontaneously in society. Terhaar is known for his “Decision” theory, which means that to see whether a custom has become common law, one has to look at the attitude of the rulers of the legal community towards violators of these general rules. If the authorities pass sentences to criminals, then this duty is common law.

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Dr. Sukanto, SH, customary law is a set of practices which are generally not recorded, not codified and are coercive and punitive so that they have legal consequences. So it can be concluded that in general common law is unwritten law. However, indigenous peoples continue to believe that there are laws that bind their environment and that they must be followed and punished if they break them.

Sources of Customary Law

Sources of customary law (common law) are divided into three forms, namely:

  • Source Identification

The main sources of common law are what is actually done in the jurisdiction in question, whether singular or repeated. This source applies when the perpetrator of a crime is clearly proven guilty and then punished according to the wrongdoing committed.

  • Load source

The source of the content of customary law is the legal awareness of the customary law community. So, awareness of a sanction that applies if you commit a crime or a mistake indirectly gives awareness to the people around you who practice customary law so that they are reluctant to do so so that they are not subject to the applicable customary sanctions or punishments.

  • Binding source

The binding source of customary law is shame, resulting from the operation of the value system among the indigenous peoples concerned. The binding force of customary law is the legal awareness of the customary members concerned.

When indigenous peoples still have a high sense of shame if they make mistakes that lead to customary law, of course they avoid making mistakes as much as possible so that they are not subject to applicable customary law. However, it’s a different story if the community no longer has a sense of shame when they make mistakes like those of corruptors and other legal criminals in Indonesia.

Elements of Common Law

This unwritten legal element is divided into two parts as follows:

  • Material elements

The first element is a material element that shows the existence of habits and behavior in customary law which are formed and repeated. It also means the same behavior.

  • Spiritual Elements

The second element is the spiritual element, which shows that there are paths in customary law that must be followed, because the community groups within them believe that this is done objectively.

Customary law forms

Unlike other developed legal systems, customary law is unwritten law. These laws grow, develop and disappear according to the growth and development of society.

Attempts were made to codify some of the customary laws and thereby encourage them to acquire a written form.

One example is the Farm Act of 1950. Common law, which became written law, however, was different from earlier common laws. The general law relating to agricultural matters became the Basic Law

Characteristics of Customary Law

Customary law is a cultural product which contains cultural values ​​of creativity, intention and human feelings. In other words, law was born from awareness of human needs and the desire to live in a just and civilized manner as a manifestation of human civilization.

On the other hand, customary law is also interpreted as a form of cultural ideas, consisting of cultural values, norms, laws and rules, which are interconnected and form a system and have very strong real sanctions.

Quoted by Dr. Introduction to Indonesian Law. B. Hanafi Arief, SH, MH, Ph.D. D, customary law or common law can be identified from several characteristics, including:

  • Irregular.
  • Not written and not codified in legal form.
  • Not arranged systematically.
  • No introduction or consideration is used in the decision.
  • Not made in the form of a law book.
  • Provisions are not systematic and lack explanation.

Nature of Customary Law (common law)

Common law has special properties in addition to several characteristics, for example:

  • Community (communal): family; society is more important than the individual.
  • Cash (Cash): Legal actions are legal if done in cash, as a basis for acknowledging legal actions.
  • Real (Concrete): a legal act is declared valid if it is made specifically in the form of a law.

Examples of customary law in Indonesia

There are many examples of Indonesian customary law, here is an explanation of the various customary laws that apply in Indonesia and are still valid:

  • Acehnese customary law

This customary law prohibits men and women who are not husbands or relatives from living together. If they broke, both were whipped. In Aceh, people who make mistakes are punished according to the mistakes they have made. Starting from reprimands, apologies from the public to physical punishment.

  • Balinese customary law

Following patrilinealism, namely custom, which regulates descent from the father’s side. There, the community has a family inheritance law, which is given entirely to men. Although only women can wear it.

  • Javanese Customary Law

Javanese people perform special rituals before carrying out activities to avoid bad events.

  • Minangkabau customary law

Which states that a marriage is considered valid if a member of the community enters into a marriage based on the terms and pillars of the Islamic religion.

  • Finger Cutting Customary Law, Papua

This customary law may sound terrible, but it really applies in Papua. Among the indigenous people in the Halmahera Mountains, when one of their family members dies, the remaining family members must have their fingers cut off.

  • Mahar Maluku Customary Law

The customary law that is still valid in Indonesia is the Mahar Maluku Customary Law. Until 2005, the people of Maluku adhered to the customary law of dowry, namely the severed human head. The Naulu people believe that this will bring eternity to their marriage. But now the government has banned the customary law.

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In addition to customary law that uses a dowry, Maluku also has another customary law, namely the customary law of exile. In the city of Maluku, pregnant women are thrown away from their families. The mother-to-be was placed in a 2 x 3 meter house called Tikusune which only had a mattress. Until now, this customary law is still maintained by the Naulu tribe on the island of Seram in the province of Maluku.

This is an explanation of the meaning of customary law (common law) and some examples of common law in Indonesia. After reading the following explanation, I hope it adds to the knowledge of all of you Sinaumed’s friends to understand and respect customary law that applies in various regions in Indonesia.

Benefits and Importance of Customary Law

Customary law, as a law based on the personality of the Indonesian nation, is clearly very important for the Indonesian nation itself. Apart from that, it is also important in forming the domestic laws and regulations of the Republic of Indonesia.

The benefits of customary law (common law) are:

  • Understand Indonesian customs and legal culture
  • With the existence of common law, we can find out what common law can be close to the uniformity that can be applied as domestic law.
  • Customary law, as a law born from the personality of the Indonesian nation itself, is of course always preserved as positive social law.

Thus customary law can be used as a benchmark or source of reference in the study and development of the laws of the Republic of Indonesia for those who follow it. However, it can be said that the purpose of customary law is to organize a safe, peaceful and prosperous society.

Purpose of Existence of Customary Law (Common Law)

Actually, there is no clear and detailed purpose for the application of common law in society. However, it can be said that the purpose of customary law is to organize a safe, peaceful and prosperous society.

The scope of customary law only regulates the relationship between the community and other parties with community authorities. Common law is guided by the principles of harmony, decency, social harmony and is religious-magical in nature.

Common law does not recognize the division of law, and neither does Western law. Common law does not make a clear distinction between private (citizen) and public (public) interests.

Conclusion

This is a brief discussion of the definition of customary law and examples in Indonesia. Not only discussing the definition of customary law, but also discussing in more detail the customary law that applies in Indonesia, its legal forms, legal elements, characteristics, characteristics, examples that occur in Indonesian society, the benefits and purposes of enforcing customary law in Indonesia.

Studying customary law is a very basic thing, especially for a human being as a social being because understanding the various customary laws that apply and develop in each region makes us more respectful of each applicable regional regulation and of course it varies according to the cultural background of the area and the reasons why. they apply the customary law, of course, for certain reasons according to their respective customary beliefs.