Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)

Abstract

Enhancing Legal Pluralism: The Role of Adat and Islamic Laws Within the Indonesian Legal System

Author(s): Kurnia Warman, Saldi Isra, Hilaire Tegnan

The Indonesian Constitution prescribes that Indonesia shall be based upon the belief in the ‘One and Only God’. The same constitution also says that “the State guarantees all persons the freedom of worship, each according to his/her own religion or belief”. On the other hand, article 28B section 2 of the same constitution prescribes that “the state recognizes and respects traditional communities along with their customary rights…” This shows the importance of religion and custom in Indonesia, since it is estimated that 87.18% of Indonesia's population are Muslim (based on the 2010 census). Religion, especially Islam, plays an important role in the lives of the Indonesian people as it influences politics, economy and culture. Besides protecting religious and cultural freedoms, the constitution also prescribes that Indonesia is a rule of law country. By granting such a position to religion and custom (hereafter referred to as adat) within the country’s legal system, the constitution has set the stage for the practice of legal pluralism in Indonesia. This paper examines the obstacles faced by Islam and customary laws (hukum adat) and how both legal systems have contributed in the development of the Indonesian law. The study reveals that despite their contribution, both Islamic law and customary law still face a number of obstacles that weaken not only the implementation of a stronger legal pluralism, but also the Indonesian legal system as a whole.