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

Abstract

The Social Function of Land Rights in Indonesia: The Basic Agrarian Law and Customary Rights by the State

Author(s): Erni Agustina

This paper examines Basic Agrarian Law’s philosophical principle of the personal relationship between land and society and the social function of land rights through the application of customary rights by the state. State-owned land is derived from the conception of Public Code. Therefore state-owned land does not mean land ownership by the state, but rather leads to the state's authority to organize, use and manage the land. In this context, land in Indonesian agrarian law philosophically has a social function, which seeks to secure a personal relationship between land and society. Land rights are regulated to ensure that social functions in every land use can work well. The concept of the customary (ulayat) land of the state is an original legal concept to ensure that the state guarantees the community to control or occupy and work on the land under customary law. This reinforces the position of the people to implement customary law, as the law that existed before the birth of the nation state system of Indonesia. The State also ensures that land ownership rights must function socially, and the position of property rights with the concept of customary rights by the state is in line with other legal objects, such as mining rights, use rights, right to build, the right to manage and other rights. Here, philosophically, the Basic Agrarian Law (BAL) strengthens the constitutional basis of social justice by introducing the use of land to maximize social function as well as people's welfare. On the other hand, the conception of the customary right by the state can be useful to be adopted in law with other proprietary systems such as air law, space rights, and marine rights to ensure national sovereignty and resilience.