Keywords: AdatLaw, LandLawSystem 1. Introduction
Indonesia is a country of diverse ethnicity, culture, and customs. All of them are shades of nation building material and nature that cannot be refuted by any means. When those diversities can be accommodated through the dealing mechanism, it will become a strengthening and also can be interpreted as the state building foundations placed upon it. In other words, it can be said that it is evidence of a success in defining and utilizing diversity as a potential strength either in form of intellectual intelligence or in form of emotional intelligence as wisdom. 1 This reason makes the founding father to commit establishing and developing of conception of the state that can ensure diversity. 2 Through the motto Unity in Diversity, a form of collective awareness of diversity is later immortalized as the nation's wealth and power. 3 In the context of the views of the new law with character Indonesia, then, it can be said that the ability to ensure fairness and legal certainty or the ability to provide fair protection to the existence of the Adat community and their rights is an integral part of the effort to do simultaneous changes in the nature of independence.
In this circumstances, we arrive finally at the most complex of all the desiderata that make up the internal morality of the law: congruence between official action and the law. This congruence may be destroyed or impaired in a great variety of ways: mistaken interpretation, inaccessibility of the law, lack of insight into what is required to maintain the integrity of a legal system, bribery, prejudice, indifference, stupidity, and the drive personal power. Lon L. Fuller says that just as the threats toward this congruence are manifold, so the procedural devices designed to maintain it to take, of necessity, a variety of forms. We may count here most of the elements of “procedural due process”, such as the right to representation by counsel and the right of cross-examining adverse witnesses. 24
Elements of Legal Theory. The Hohfeld’s taxonomy  is a milestone of juridical literature that proposes a widely accepted classification of legal concepts. It is grounded on the notion of right, which can be defined as “entitlement (not) to perform certain actions or be in certain states, or entitlement that others (not) perform certain actions or be in certain states” 4 . Rights are classified by Hohfeld in the 8 elementary concepts of privilege, claim, power, immunity, no-claim, duty, liability, disability, and organised in opposites and correlatives. Claim is the entitlement for a person to have something done from another person, who has therefore a Duty of doing it; e.g., if John has the claim to exclusively use of his land, others have a corresponding duty of non-interference. Privilege (or liberty) is the entitlement for a person to discretionally perform an action, regardless of the will of others who may not claim him to perform that action, and have therefore a No-claim; e.g., giving a tip at the restaurant is a liberty, and the waiter can’t claim it. Power is the (legal) capability to produce changes in the legal system towards another subject, who has the corresponding Liability; examples of legal powers include the power to contract and the power to marry. Immunity is the right of being kept untouched from other performing an action, who has therefore a Disability; e.g., one may be immune from prosecution as a result of signing a contract. Two rights are correlatives  if the right of a person implies that there exists another person (it’s counter-party), who has the correlative right. For example, if someone has the claim to access some data, then somebody else will have the duty of providing that data, so duty and claim are correlatives; similarly, privilege-noclaim, power-liability, immunity- disability are correlatives. The concept of correlativeness implies that rights have a relational nature. In fact, they involve two subjects: the owner of the right and the one, against whom the right is held - the counter-party. Vice versa, the concept of opposition means that the existence of a right excludes its opposite.
legislation (Article 66) 66 . This top-down
approach to land management is contrary to the national goals of law reform and decentralisation, taking power away from regional and local governance structures including Adatlaw. In a system of legal pluralism centralisation this can operate to dominate other less authoritative sub-systems of law. This has lead to a situation where both the central and state governments are able to use their power to exploit forests and neither are under any obligation to claim any responsibility for sustainable
Learning from the case handled by the Adat Courts above revealed ineffective position and role of Adat Courts regarding natural resources (land) disputes. The Decision of Adat Proceeding of Kapuas Hulu District shows that this institution is not capable when dealing with large companies, especially in the case of natural resources (land) utilization. It also shows the conflict of logics between informal law (adatlaw) and formal law (state law). Thus, if the Adat Courts are used as the communal land dispute settlement mechanism, the main thing to concerns is the minimum competence of Adat Courts. The challenges of this competence are mainly related with knowledge (not only legal knowledge of adatlaw, but also state law), leadership, and impartiality. These challenges are difficult to defeat, given the structure and cultural diversity within society. As explained in the earlier part of this paper, several (or most) portion of the society strongly persists their customs including their traditions, so formal law (state law) is not used by them because it is unknown to them. There are two possibilities to explain this alienation to state law, which are: 1) these societies are geographically and cuturally isolated so that their knowledge of formal law is hampered; and 2) from the government side, the lack of infrastructure and human resources that attributes to formal law causes this legal system to be unable to be understood well or perhaps even inaccessible for the local community.
Adat tenure does not recognize individual ownership because ulayat land is perceived as a communal property and thus cannot be sold individually or be registered on an individual basis. Control over land is created, maintained, and protected by adatsystem according to the local wisdom and knowledge. Land exchange through sale and purchase or rent is usually limited among the community members. Outside parties can obtain access to the land with the approval of the chief of adat, after they provide a customary payment (usually money and cattle such as buffaloes, cows, and so on) through adat ceremonies. Furthermore, alienation or pawning of communal land can be done only with the chief’s consent, on behalf of the tribal/kinship group. However, the land is still considered to belong to adat and should be returned to the community after the tenure is completed. 41
By virtue of the power dimension, the quest for clarity in respect of the direction of land reform is disordered because there are possibly competing social, economic and political perspectives to the reform. 18 The perspectives are not mutually exclusive. They are intertwined and serve a national development objective with slightly different ‘pressure points’: What may be conceived as a social perspective is epitomised by the ‘new donor consensus’ with its focus on ‘livelihoods’ and the reform of the so–called ‘customary’ space. The role of the State is facilitative. 19 Second, an economic perspective emphasizes the growth of a ‘bimodal agrarian policy’ where large scale agriculture operates in parallel to a developed small scale agriculture sector with the former catering for an export agricultural commodity market and the latter satisfying home consumption. The goal here requires a State intervention that ‘sees value in partial ‘delinking’ from the global market’. However, the nature of the current global geopolitics entails that this particular aim faces widespread opposition. 20 Finally, what may constitute a political perspective operates at the micro and macro levels: the former is a means to ‘dissolve non–capitalist relations of productions or excessively concentrated power structures’ at the national level. The latter serves as a means of obliterating ‘the political power of large agrarian capital’ and its links with (international) capital. 21
Halifax Peninsula Land Use By-law Page 2 advance of or after use or in exchange for credits, whether acquired on or off the premises, on which the machine is located, which does not dispense foods, wares or services, but is used as a game, contest of chance or skill, or for amusement whether or not registering a score, including but not limited to electronic or mechanical game machines, electronic video games, skill ball, bowling game machines, horse racing machine, driving games, target games, pinball machines, shuffleboard, and other similar machines or devices under whatever name they may be indicated.
Furthermore, depending upon when the particular oral argument is scheduled and the substantive subject matter that it covers, I have adjusted the course syllabus to make certain that we have covered the topic using our casebook resources. Another interesting teaching moment happened at the oral arguments just before the court was called into session on the day that the Goldstein v. New York State Urban Dev. Corp. case was argued. The group from Brooklyn, led by Daniel Goldstein and opposing the government’s use of eminent domain, had arrived from Brooklyn in chartered buses to observe the argument. An issue arose because the law students were seated in the courtroom first, and although many interested Brooklyn residents were in the courtroom, there were not enough seats for everyone. The court does not allow observers to stand and had made arrangements for overflow crowds to watch the argument. Some of the people who rode up to Albany on the bus approached the students asking them what part of Brooklyn they were from and what their connection was to the community. Both indirectly and directly, students were asked by other members of the public to give up their seats and leave the courtroom. We were able to later have a discussion about civility and public access to the courthouse, and, perhaps most important, students learned first- hand about the passion that can be drawn from people involved in land use disputes.
Concerns will be raised, even in externships in the non-profit sec- tor, if several factors are present: the activity in which the host is en- gaged competes with commercial enterprises; the relationship created between the host and the extern looks like a regular employment rela- tionship; and the program is not designed to fall within one of the special categories exempted from FLSA requirements (such as volun- teers or trainees). In a law school externship program, for example, a student extern doing legal work at a non-profit law firm or legal de- fense fund on a fee-shifting case might well look, to the Labor Depart- ment, much like an extern at a for-profit law firm doing legal work on a fee-generating case. While this issue is unlikely to arise when a law student is externing with a prosecutor’s office, student externs at legal services clinics and public interest groups may well be working on the types of matters which are also handled, for fees, by private lawyers. If so, the Department may well apply the same analysis outlined in above, rather than treating the externs as “volunteers.”
This chapter has sought to trace Holleman’s experience and thinking through his training under van Vollenhoven, his career in the NEI judiciary and bureaucracy, and finally his move into academia. He initially distinguished himself with careful research of local customs and practical advice for judges – notwithstanding a tendency to present an idealised traditional state of affairs in contrast to creeping commercial attitudes. However, as he entered the academy he seems to have shifted focus away from empirical research towards building the systematic schema of adatlaw, making influential and increasingly orientalist generalisations about the communal nature of Indonesian mindsets and legal systems, and opposing measures to modernise adatlaw. At this stage, I argued that this left adatlaw in a particularly impractical situation, which left its appeal largely at the level of traditionalist ideas of how society should be ordered.
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Recommended Citation Recommended Citation
Sherwood, Don H. (1970) "Mining Law at the Crossroads," Land & Water Law Review: Vol. 6 : Iss. 1 , pp. 161 - 183.
Questions can, however, be raised about the conceptual framework which is used to give cohesion to the book. In the main, this is not simply of Professor Neville’s making, but reflect wider challenges for the historiography of Scotland in the 12th and 13th centuries, challenges which arise from the way the subject has been tackled by generations of scholars. The 12th and 13th centuries saw the infrastructure of modern Scotland take shape: sheriffs and counties, common law and parliament, burghs and parishes, castles and aristocracy, and the use of writing in the arena of landholding and government. These were modelled to a significant degree on English practice, and knights, clerics and merchants from England played a crucial role in establishing and sustaining these developments. By the end of this period, Gaelic was in decline or dead in the areas where these changes had come together and become part of the fabric of society. This
According to, resembling, or denoting the system of feudalism. Feudalism wa the dominant social system in medieval Europe, most perfectly implemented in England. It was a system of social and political organisation in which the nobility held lands from the Crown in exchange for military service, and vassals were in turn tenants of the nobles, while the peasants (villeins or serfs) were obliged to live on their lord's land and give him homage, labour, and a share of the pro- duce, notionally in exchange for military protection.