UNDERSTANDING THE POSITION AND CAPACITY OF CUSTOM

LAWIN THE POLITICS OF NATIONAL LEGAL DEVELOPMENT

Oleh : Ni Putu Nopianti

ABSTRACT

Indonesia has been known as a country with cultural diversity, as reflected

incultural wealth that includes diversity of ethnic groups, religions, languages, and
also diversitystratification of the social life of its people. The motto of Bhinneka
Tunggal Ika is a reflectionempirical of the diversity of social and cultural life that
shapes the identity of the Indonesian nation.Customary law is one of the cultural
products of the Indonesian people, especially cultureidiil, which forms the original
legal identity of the Indonesian people. In relation toa national law development
policy should customary law be an appropriate referencecalculated to enrich the
substance of national law, due to the fact of legal pluralismin society is a necessity
that cannot be denied in legal lifein Indonesia. This article attempts to provide a
more holistic understanding oflegal position and capacity in national law
development policies in the countryand a nation that is characterized by cultural
pluralism.

Keywords: cultural diversity, position and capacity of customary law,

development policynational law

Preliminary

Indonesia is known as a country with a patternmulticultural, multiethnic,

religious, racial, and multigroup. Sesanti Bhinneka Tunggal Ika defacto reflects
the cultural diversity of the nationunder the auspices of the Unitary State of the
Republic of Indonesia.The territory of the country that stretches wide from
Sabanguntil Merauke. Indonesia has the resourcesnature ( natural resources ) are
rich and abundantlike a string of emerald quality beads in the span of the linethe
equator, and tangible as a resourceculture ( cultural resources ) that vary
coraknya(Koentjaraningrat, 1988; Hardjono, 1991).From one side, theoretically
cultural diversity(multicultural) is a cultural configuration( cultural configuration )
which reflects identitynation, and empirically become the constituent
elementsUnitary State of the Republic of Indonesia (NKRI). Besidesthat, cultural
pluralism is also a cultural asset( cultural capital ) and cultural strength
( culturalpower ) that drives the dynamics of lifenation and state (Dhari and
Suparman, 1999).However, from the other side, it is pluralityculture also holds the
potential for conflictcan threaten national integration, because of conflictbetween
cultures in the form of conflicts between ethnic groups, between followers of
religion, race and between groupsis very sensitive and vulnerable to aconditions
that lead to the disintegration of the nation. This mattervery likely if the conflict is
notmanaged, interpreted, and resolved politely,peaceful, and wise by the whole
common governmentcomponents of the nation's children.

From an anthropological perspective, conflict issocial phenomena that are

inseparable ( inherent )of human life, especially in societymulticultural in
character. It cannot be avoidedor neglected in life together. Thatgot to do is how
that conflictmanaged, controlled, accommodated, and resolvedpeacefully and
wisely so as not to causesocial disintegration in community life(Bohanan, 1967;
Spradley & McCurdy, 1987).In the last four decadesthese, conflict cases
stemming from potentialcultural diversity tends to increasequality and quantity.
Inner conflictscommunity life in Aceh, Abepura and Timika(Papua), Ambon
(Maluku), Ternate (North Maluku),Sampit-Sambas (Central Kalimantan),
Pasuruan-Situbondo (East Java), DKI Jakarta, Mataram(West Nusa Tenggara),
Lampung, Poso (SulawesiCentral), Pontianak (West Kalimantan), and
othersothers are a reflection of the sensitivity ofthe potential for cultural diversity
to cause conflictand conflicts between ethnic groups, between religious
communities,and / or between groups that occur in variousIndonesian region.

In a more complex society, mindlaw was developed as a tool to

manipulatesocial life ( social engineering ). Is the mindlaw in a multicultural
society is limitedon both goals? Can legal idealsimproved in order to play the role
of an instrumentto maintain and strengthen national integrationin a multicultural
society? andwhat is the position and capacity of customary lawin the politics of
national law development inthis country? The following descriptions try to
giveanswers to the three fundamental questions above,by using a legal
anthropological approach( legal anthropology ) as part of legal studiesempirical
( empirical study of law ).

Research methods

Research as a scientific activity is part of the development process of

science and human beings. Science is actually built, studied and developed to
provide benefits for human beings to create dynamic and harmonious lifestyles.
Research is a scientific job design to find, acquire, collect, and analyze data to
obtain objectives and objective results that will determine the accuracy and
validity of the study results. In order to obtain research results, in this study,
normative legal research is used with the approach related to applicable
regulations both central and regional. With this approach is expected to clarify the
position of customary law in the normative law it applies.

Results and Discussion

The description in the previous section showsthat law in an

anthropological perspective is studiedas a social control system ( social control )
maintain order in social life ( socialorder ) (Black, 1984). Law in its function as a
means of controlsocial is one of the roles of law ( lawas a tool of social control )
in society (Black,1973). Along with the demands of developmentsociety itself,
especially in societyincreasingly complex, the role of law thendirected and leveled
as a means todo social life engineering ( law as atool of social engineering ), or to
dosocial changes by usinglegal instruments ( social engineering by law )
forachieve the social conditions desired byThe country represented by the
government(Moore, 1978; Rahardjo, 1982; Darmodiharjo &Shidarta, 1996).Law
also functions as a medium of facilitationinteraction between humans ( law as
facilitation ofhuman interaction ), to achieve orderin social life ( social order ).
Indiscourse of legal science explained that the mind oflaws are basically meant to
achievethree goals at once, namely: achieving justice( gerechmatigheid ),
expediency ( doelmatigheid ),and legal certainty ( rechtmatigheid ) inlife together
(Radbruch, 1961). Therefore,in legal theory it is stated that the rule of lawhas the
power to apply philosophically, in a sense in accordance with the ideals of the
reflecting lawthe value of justice in society; sellablesociological, in the sense of
being accepted and recognized asnorms in accordance with living valuesin
society; and legally effective,in the sense of having a legal basis according
tohierarchy of legislation.

The rule of law basically has two characteristicsprincipal, which is

regulating ( regelen / anvullenrecht ) and is compelling ( dwingen recht ).
Thatregulated by the rule of law is people's behaviorto create an atmosphere of
order, order,tranquility, and peace ( order and peace ) withinlife together.
Meanwhile, the nature of a forcethe rule of law is reflected in the application of
sanctionsby repressive law enforcement officers for eachpeople who break it.
Questions that arisethen, can the rule of law be utilizedas an instrument to
maintain and maintainsolid national integration in that societymulticultural in
character.

Indonesia is a country that has featuresmulticultural diversity, including

diversitylegal system prevailing in society.This is because in addition to the
applicable state legal system( state law ) there is also a de facto legal systemadat
( adat law ), religious law , andalso self-regulatory mechanisms ( self-regulation )
in public life. Howeverso, if we look closely, thenparadigm of legal development
which isembraced by the government over a period of timethe past three decades
are likely to havethe nature of legal centralism ( legal centralism ),
throughimplementation of the politics of unification and codificationlaw for all
people in the territory of the country( rule-centered paradigm ). The implication,
lawcountries tend to displace, ignore, anddominate the existence of legal
systemsanother, because consciously the law is functioningas governmental social
control (Black, 1976),or as the servant of repressive power (Nonet& Selznick,
1978), or as the command of asovereign backed by sanction (McCoubrey &
White,1996).

This means that from an anthropological perspectivethe source of the

emergence of the conflict phenomenonprecisely from the problem of the
development paradigmthe law ( legal development paradigm )
adoptedgovernment and legislative institutions, namely paradigmslegal
development characterized by centralismlaw ( legal centralism ). This is
contradictory with the fact of legal pluralism in societymulticultural. Therefore, to
make aculturally integrated community orderin a social building called the state,
thenembrace the ideology of legal centralism must immediatelyreformed by
adopting the paradigm of pluralismlaw ( legal pluralism ).To achieve this goal,
one effortwhat to do is build a paradigmlegal development that gives
recognitionand complete protection ( genuine recognition )against legal systems
other than state law, such ascustomary law ( customary law ), law ( religious
law ),and local regulatory mechanisms ( inner-order mechanism ) which is clearly
growing anddeveloping in society. By implication, thevalues, legal principles,
institutions, and folk traditionslaw must be accommodated and integrated
intonational legal system, and set forth in a concrete mannerinto the norms of state
law (laws and regulationsinvitation). This means, a must legal
characteristicdeveloped to build and strengthenmulticultural national integration is
lawpatterned responsive ( responsiveness law ), namelylaws that respond to and
accommodate values,principles, norms, institutions, and traditions that growand
develop empirically in lifesociety (Nonet & Selznick, 1978: 113).The description
in the previous sections givesshow that law in an anthropological perspectiveis a
cultural activity that functions in addition toas an instrument for maintaining
social order( social order ), a means of social control ( socialcontrol ), also as a
tool for engineeringsocial ( social engineering ) in the community (Black&
Milesky, 1973; Black, 1984). In this context,laws are studied as an integral part
ofculture as a whole, not asautonomous or separate social institutionsfrom other
cultural aspects, such aspolitics, ideology, economy, religion, social,
structuresocial organizations, and others. (Pospisil, 1971).Therefore, to understand
position and capacitylaw in the structure of society, then first-Tama must be
understood social and cultural lifesociety as a whole (Hoebel, 1954).

Conclusion
 To get a complete understandingregarding the function and role of law in
lifemulticultural society, then the political issue of legal development
adoptedgovernment is also a part that must be studiedthe relationship is
comprehensive. in defacto over a period of more than three decadesRecently, the
government tends to embrace politicsoriented towards legal developmentideology
of legal centralism ( legal centralism ),so that national legal products tend
toignore, evict, and even cleanregulatory systems other than state law ( statelaw )
which empirically grows and developsin society. Phenomenon like this
aboveknown as pluralism neglect politicslaw ( political of legal pluralism
ignorance ) indevelopment of national laws.

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