The Legal Pluralism Paradigm and the Proposal for the Substantive Recognition for the Existence of Adat People

4. The Legal Pluralism Paradigm and the Proposal for the Substantive Recognition for the Existence of Adat People

Talking about a general concept of “Adat People” that can

be implemented into various legislations so a real and correct protection for the Adat People can be actualized, it is important to look back to what discussed in the chapter 1 above. As what argued before in the chapter 1 of this paper, a broad and general concept about the term of “Adat People” can be defined as a group of Indonesian people having a set of Adat Law factually regulating their daily life. So, if such notion can be agreed, it can obviously be seen that the existence of the Adat People derives from the existence of Adat Law. Thus, it’s clear that the existence of Adat People can not be separated from the existence of Adat Law. It means that

a substantive recognition for the Adat People will be impossible to be conducted without recognizing substantively the Adat Law a substantive recognition for the Adat People will be impossible to be conducted without recognizing substantively the Adat Law

Addressing to the legal centralism paradigm as one of the main problems regarding the protection for the Adat People, it is of course important to talk about the counterpart of such paradigm, which is the legal pluralism paradigm (Griffiths 1986, p. 4-5).

According to the concept of legal pluralism raised by Griffiths, there are two points which can be gathered as general principles of legal pluralism, which are (Kurniawan 2010, p. 30):

First, law is not only associated with the state. Instead, law is also associated with any social group existing in society. Such notion can be laid on some following reasons. First, according to Leopold Pospisil (cited Kurniawan 2010, p. 30), a traditional conception perceiving law as mere the property of society as a whole (the state) has two problematic consequences. For societies having no comprehensive political organization (a stateless society), there will

be a denial of the existence of law among the people of such societies, and for societies having a comprehensive political organization, the law will be perceived as a simple and pervasive legal system

(Kurniawan 2010, p. 30) in which such perception ignores the fact that society is rather a patterned mosaic of subgroups that belong to certain, usually well-defined (or definable) types with different memberships, composition, and degree of inclusiveness, in which every such subgroups owes its existence in a large degree to a legal system which is its own that regulates the behavior of its members (Kurniawan 2010, p. 30). Second, as argued by Eugene Ehrlich (cited Griffiths 1986, p. 26), if a man conducts himself according to law because this is made imperative by coercive power, the state is not the only association that exercises coercion. Instead, there is an untold number of associations in society that exercises coercion much more forcibly than the state (Griffiths 1986, p. 26).

Second, law is not limited as only the law of the state (Kurniawan 2010, p. 31). Instead, law is all kind of regulation regulating any kind of social group or social field (Kurniawan 2010, p. 31). The reason of such argument can be found in what Smith (cited Griffiths 1986, p. 18) explained that the social group (in which Smith calls it as “corporation”) is the basic unit of social structure and the locus of political action, in which the individual’s membership in a social group is the original and fundamental source of his/her social rights and obligations. Therefore, as argued by Moore (cited Griffiths 1986, p. 34), the social space between the state and a subject is not a normative vacuum, but it is full of social institutions with their own regulations. That’s why Ehrlich (cited Griffiths 1986, p. 25) argues that the original and the basic form of law is not the law of the state (as manifests in the legislation and the decision of courts), but in the inner order of the association of human beings.

According to the main principles of the legal pluralism above, we should start to think that the Rule of Law principle should not According to the main principles of the legal pluralism above, we should start to think that the Rule of Law principle should not

Just if we consider such notion seriously, the serious effort in protecting the existence of the Adat People can be conducted. However, an effort to implement such notion will obviously require

a very radical reconstruction of both the whole legal concept and the whole legal system, and of course it is something which needs to be observed deeper. Therefore, we have to admit that a mission to protect human rights is not a simple and easy task indeed. It is not only about a legal enforcement or even a legal reform issue. A mission to protect human rights is also not only about an activism or even a social movement. Instead, it is a revolution! a very radical reconstruction of both the whole legal concept and the whole legal system, and of course it is something which needs to be observed deeper. Therefore, we have to admit that a mission to protect human rights is not a simple and easy task indeed. It is not only about a legal enforcement or even a legal reform issue. A mission to protect human rights is also not only about an activism or even a social movement. Instead, it is a revolution!

Arif, Ahmad. 2007. Tanah Emas Tanah yang Berdarah. Kompas Daily News edition of 1st September. Griffiths, John. 1986. What is Legal Pluralism? Journal of Legal Plural- ism and Unofficial Law Number 24. Hadikusuma, Hilman. 1992. Pengantar Ilmu Hukum Adat. Bandung: Mandar Maju Publishing. Koesnoe, Moh. 1992. Hukum Adat Sebagai Suatu Model Hukum. Ban- dung: Mandar Maju Publishing. Kompas Daily Newspaper. 2008. 2, 3 Juta Hektar Lahan Suku Anak Dalam Ludes. Edition of 11 th December. See also: Kompas Daily Newspaper. 2008. Hak-Hak Orang Rimba Terabaikan. Edition of 13 th December.

Kurniawan, Joeni Arianto. 2010. Legal Pluralism in Industrialized Indonesia. A Case Study on Land Conflict between Adat People,

the Government, and Corporation Regarding to Industrializa- tion in Middle Java. Saarbrücken - Germany: VDM Verlag Dr. Müller.

Muhammad, Bushar. 1975. Azas-Azas Hukum Adat. Suatu Pengantar. Jakarta: Pradnya Paramita. Simarmata, Rikardo. 2006. Pengakuan Hukum terhadap Masyarakat Adat di Indonesia. Jakarta: UNDP. Soepomo. 1997. Bab-Bab tentang Hukum Adat. Jakarta: Pradnya Paramita. Sudiyat, Imam. 1981. Hukum Adat Sketsa Asas. Yogyakarta: Liberty Publishing. Wignjodipuro, Surojo. 1979. Pengantar dan Azas-Azas Hukum Adat. Bandung: Alumni Publishing.