Customary Law in the Development

of National Law

Abdul Rahman Maulana Siregar

, Runtung Sitepu

Doctoral Student, Faculty of Law, Universitas Sumatera Utara, Jl. Perpustakaan USU, Medan, Indonesia

Doctoral Program in Law, Universitas Sumatera Utara, Medan, Indonesia

Keywords: Customary Law, The Development of the National Law

Abstract: The laws of a nation is a reflection of social life of the nation, and the establishment of the law of a country

must be free of influences and interests of other countries. Legal pluralism as a situation in which two or

more legal systems work side by side in a field of social life. Legal pluralism gives an explanation against

the fact of the existence of a social code of conduct that is not part of the regularity of the State law,

including customary law, religious law, custom and agreement. Normative legal research is research using

secondary data that is collecting data on the study of librarianship is sourced using a variety of scientific

literature, books, magazines, documents, legislation, and the works of the law, as well as a source of another

library. Strengthening customary law in the development of national law did not immediately solve the

problems that arise in the community. However, legal pluralism gives new insight to the practitioner of law,

State law and society-forming widely that besides State law there are other legal systems are more used to

exist in society and the legal system interact with state law and compete with each other.

1 INTRODUCTION

Long before the entry of a foreign tradition, society

believed to be Indonesia's already regulated by

customary law values. The custom is understood as

binding norms that are preserved by a community to

organize the daily life of human beings, so the

custom itself is legal. Based on such understanding it

can be said that the people of Indonesia in reality

never understand customs as separate entities from

the law. The customary law is basically a reflection

of what is believed to be a person as a way of life

that conforms with a sense of Justice and propriety.

The laws of a nation is a reflection of the social

life of the nation in question, and the establishment

of the law of a country must be free of influences

and interests of other countries. If later sound loud

voiced, we need a democratic legal establishment,

but the establishment of a democratic legal not legal

means at once established will be effective. In this

context for example, the Mission of a law is not how

democratic establishment of laws that established,

but lies in the extent to which what is sent from the

formation of the legislation can be achieved. That is

to say, the benefits of making more of a

participatory law in an effort to boost the democratic

legitimacy of the legal character of the Act which

was formed.

If the law of a nation is a reflection of the social

life of the nation in question, then it becomes

paradoxical with the globalization of the law.

Although in some cases certain legal globalization

meant will still take place in different legal systems.

Despite the globalization of law something that hard

to avoid, but nation States will not simply hand over

their sovereignty, and function in a global system

will not take place free of the control of nation

States because globalization is not the way the toll

without a mechanism. The mechanism of how the

traffic of public relations of nation States, it is built

upon a contract, agreement or Convention, so does it

matter that had been limiting it is national law, then

that restriction is an agreement between countries

the nation.

The occurrence of different types of conflict law

caused by the effects of globalization. Approach to

customary law in the settlement of disputes out of

court that generate win-win solution, so that the

harmonization for the parties occurred. The

resolution of the conflict with customary law

approaches based on propriety, harmony, and

alignment can prevent the occurrence of prolonged

Siregar, A. and Sitepu, R.

Customary Law in the Development of National Law.

DOI: 10.5220/0010091416211625

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1621-1625

ISBN: 978-989-758-449-7

1621

conflict and materialize the harmonization of

society. Harmonization of social life and the nation,

means to embody the ideals of the struggle of the

nation of Indonesia that is imbued by the sublime

values of Pancasila, the 1945 Constitution, the

Unitary State of the Republic of Indonesia and

Bhineka Tunggal Ika.

In the form of customary law is characterized by

its traditional model of delivery which is not written

in the life of the community. The specificity of

customary law lies in the lisannya tradition. Through

oral tradition this is the custom character was

preserved this tradition and through the relationship

between past, present and future. Therefore, the

information that is brought into the community is

typically delivered orally then in law any rarely

codified custom. Customary law is never attempted

to systematically codified or enactment, because he

is believed to be a direct manifestation of a sense of

Justice and propriety that is embraced by all

members of the community. Hence, neither the

source nor the development of customary law is in

the hands of the community and does not rely on the

process of technical legislation.

Meanwhile, in the practice of criminal justice,

the judge in examining, prosecute and disconnect a

matter is bound by the principle of legality, which

requires only a law or a written law can determine

whether an act constitutes a Criminal deeds or not.

Consequently, each of which may or may not be

done it should be listed in the Act. Nevertheless, the

introduction of the principle of legality was not

absolute, that is, it is still possible for the excluded

all does not reduce legal certainty. This occurs

because of a problem of fairness into consideration

and the presence of several regions in Indonesia that

is still treating the criminal law. Moreover, some

acts that according to the law society's consciousness

is an ignoble deeds, thus the CRIMINAL CODE

does not set it up. In some areas in Indonesia still

apply customary law and the law of habit still

adhered to by the people.

2 METHODOLOGY

Legal research is a scientific activity, based on a

method, certain thoughts and systematics, aiming to

learn one or more symptoms of a particular law,

with its analysis. Against it, then also held in-depth

examination against the facts of the law, and then

lobbies for a solution of the above problems arising

in the relevant symptoms.

Normative legal research that is collecting data

on the study of librarianship is sourced using a

variety of scientific literature, books, magazines,

documents, legislation, and the works of the law, as

well as a source of another library. The data in the

normative legal research is data obtained directly

from the subject of the research.

3 RESULT AND DISCUSSION

3.1 The Function of Customary Law in

Society

The term "customary law" presented first by Prof.

Dr. Cristian Snouck Hurgronye in his book entitled

"De Acheers" (the people of Aceh), followed by

Prof. Mr. Cornelis van Hoven Vollen in his book

entitled "Het Recht van Custom Nederland Indie".

The existence of the term, then the Netherlands

colonial Government at the end of the year 1929

began using officially in the Netherlands legislation.

The term customary law is actually not known in

the community, and the community only know the

word "custom" or habit. Custom Recht translated

into customary law can be transferred into the law of

habit. Nevertheless, van Dijk objected to customary

law compared with the law of habit. According to

him, the Customs and the habits it is an essence that

is different when seen from the source. Customary

law it is sourced on the existence of a power tool in

the form of a fixture of society as a base, whereas

the law of habit that does not.

To get an overview what is a customary law,

argued as follows:

TER Haar Bzn, customary law was the overall

regulation of the incarnate in the decisions of the

heads of customs and apply spontaneously within

the community. TER Haar famous theory of

"decision" means that to see if it's something that is

already a customs law, it needs to be viewed from

the attitude of the rulers of the Community law

against violators of regulations customs. When

rulers dropped the sentence against the ruling of the

offenders then customs it is customary law.

Cornelis van Vollen Hoven, Customary law is

the overall behaviour of the Community rules in

force and to have codified and not yet sanctions.

Customary law is complex customs that are

generally not written, codified and not coercion,

sanctions have so have legal consequences.

Soepomo, customary law is unwritten law in the

unwritten rules, including the rules of life that

ICOSTEERR 2018 - International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches

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although not defined by the authorities but adhered

to and supported by the people based on the belief

that the regulations have the force of law.

Soerjono Soekanto, Customary law is in fact the

law of habit, that is to say customs which had legal

consequences (sein sollen). In contrast to mere habit,

is customary law are acts repeated in the same form

on rechts vardigeoordening der samen-leving.

Of the limitations expressed above, then look at

the elements of customary law are: the existence of a

continuous behaviour carried out by the community;

such conduct regular and systematic; such behaviour

has to be sacred; the existence of a decision of the

head of the customs; the existence of the legal

consequences of sanctions; not written; and adhered

to in the community.

Legal pluralism, in substantive legal pluralism,

defined as a situation in which two or more legal

systems work side by side in a field of social life are

the same, or to explain the existence of two or more

social control systems in one area of social life or

describe a situation in which two or more legal

systems interact in a social life or a condition in

which more than one system of law or institution

working side by side in activities and relationships

within a community group.

(Ehrlich, 1913) emphasised that the State law has

never been the only source of law, but it has

neglected important facts or to be precise, over time:

[there has never been a time when the law was

published by State being the only law, even in the

courts and other authorities, and so there is always

an undercurrent that seeks to uphold the position of

the matching for non-State law.

Anthropologists and sociologists is a group that

stands out among parties that have highlighted the

different meanings of the word ' culture ', and many

writers and historians have law outlines in detail the

uniqueness of the various the legal system and the

relationship between law and culture or cultures. A

frequently expressed view was that the law, culture

and society will certainly be intertwined, but this

view has been challenged, for example, by Alan

Watson, a renowned Scottish compare at once a

specialist in Roman law and civil law. Watson

(1974) argues that the legal regulations is not merely

exist, but able to survive easily, even in a

neighborhood far from the antecedents. So, he

argues that ' the rules of law as are the places it

comes from wherever he was, therefore, regardless

of origin, private law can survive ' without having to

have a close relationship with the community, the

period of time specific or particular place'.

As a country that embraced a tradition of Civil

Law System, it is in the legal system of Indonesia's

positive reading must depart from the hierarchy of

legislation which strongest is Constitution that

embodied in the 1945 Constitution. So, in combining

the settings regarding the existence of indigenous

and customary law in the legal system of Indonesia's

positive, the easiest thing is to first examine its

settings in the 1945 Constitution.

In the Constitution (constitution, enacted back

according to the Decree of the President dated July

5, 1959) is not a single Article that contains a basic

introduction of customary law. According to

Transitional Rules article 11 of the Constitution, all

State agency rules and regulations that there is still

directly applicable for yet a new held according to

the basic law ". Before the re-enactment of this

Constitution, then apply the Constitution as the year

1950. In the Constitution while Article 104, States

that "Any court decision must contain the reasons

and sentencing in the case refer to the rules of the

Statute and the rules of customary law, which

provided the basis of punishment . "But this

provision, that if we interpret" customary law

"widely, contains a grondwettelijke grondslag

enactment of law, until now haven't given its legal

basis.

3.2 The Position of Customary Law in

National Law

Customary law is the manifestation of the value

consciousness and community characteristics of

Indonesia that differentiate it from other legal

systems, thus functioning as an embodiment of the

original law and a reflection of the soul of the nation

and the people's sense of Justice Indonesia. With the

position of customary law as the legal embodiment

of the original and the reflection of the soul of the

nation and the people's sense of Justice from

Indonesia, then customary law should have a central

role in the development of the law of Indonesia.

If you see further Explanation on the "General"

part III 1945 Constitution, it will be noted that the

position of 1945 was the Preamble as expository

thoughts trees embody the ideals of the law

governing the country's basic law. Explanation of

the position of the 1945 Constitution Preamble 45 it

certainly reaffirms that the Preamble 1945 here's

what is in the hierarchy of legal Grammar

Grundnorm Indonesia, so it serves as a source of law

of the national law. Rechtsidee was unification of

values that play a role in the life of the community

with the philosophy of life influenced by believed by

Customary Law in the Development of National Law

1623

the community, so if the Preamble 1945 contains

trees embody rechtsidee thoughts national, then the

fine points of mind in 1945 Preamble is the

embodiment of the values of the original society of

Indonesia. In other words, 1945 as a Preamble in the

hierarchy of legal Grammar grundnorm Indonesia is

the elaboration of the values of the indigenous

nations of Indonesia.

This will be increasingly strengthened trees

thoughts conceived in 1945 the Preamble clearly

describe and reflect the characteristics and pattern of

Indonesia society and also the style and

characteristics of the customary law Indonesia

society. Countries based on the divinity of the one

true God is a reflection of the nature of the religion-

magistik Indonesia society, who believe in the

existence of the metaphysical power of

transcendental-beyond her enclosing as well as

mastering all aspects of his life. Principal's mind

about the country's unity, the goal of realizing social

justice, as well as a State system based on popular

sovereignty and representative consultative is a

reflection of the character of the existing family and

komunalistik in the community Indonesian. Even in

the explanation of the "public" part II grain 3

confirmed that principal's mind about the State

system based on popular sovereignty and

representative consultative system is in accordance

with the nature of Indonesia society.

The above discussion clearly reaffirm the central

position of getting legally customary law in national

law, that customary law was the basis of national

law. That customary law is the law of Indonesia in

the grundnorm. Adat – law as spelled out in the

Preamble 1945-which serves as a source of law or of

any rule of law welbron positively that there is so

much that customary law was the raw material

substance positive law Indonesia. Every positive law

must rule the form with his rechtsidee, so customary

law serves as the substantive validity of the testers of

the stone all positive law Indonesia rules.

Thus, the position of customary law is one

important source to obtain materials for the

construction of a national law that led to the

unification of laws and which mainly will be done

through the creation of laws and regulations with do

not ignore the growing and ever-growing laws and

courts in the construction law.

Legal pluralism did not resolve the problems that

arise in the community. However, legal pluralism

was present to give a new understanding to legal

practitioners, legal State-forming (the legislators) as

well as the community widely that besides State law

there are legal systems there used to be more in

society and the legal system interacts with state law

and even compete with each other. In addition, legal

pluralism gives an explanation against the fact of the

existence of a social code of conduct that is not part

of the legal order of the State. The implementation

view argues that the only institution which acts

create order is social State through the law that

established and defined by the State. In such, there

are many other 'power' that comes not from the

State. Among them, customary law, religious law,

customs, cross-trade agreements and so on. The

forces equally has the ability govern the actions of

communities that are bound up in it, even sometimes

members or the community within the community

prefer to obey the rules set up by the group than the

rule of law State.

4 CONCLUSIONS

Strengthening customary law in the development of

national law did not immediately solve the problems

that arise in the community. However, legal

pluralism was present to give a new understanding

to legal practitioners, legal State-forming (the

legislators) as well as the community widely that

besides State law there are legal systems there used

to be more in society and the legal system interacts

with state law and even compete with each other.

The position of customary law in the development of

national law can be realized through the judiciary as

a stronghold of legal discovery when within an

award have been adopting the values of customary

law, then it is morally will strengthen the confidence

of the community on the existence of customary law

even though customary law in variety that no longer

is not written.

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