Article history: Received 9 February 2018, Accepted in revised form 10 June 2018, Approved 28 July 2018, Available online 2 August 2018
Correspondence Author a Abstract
The present study at discussing the about LegalPluralismPoliticstowardsRecognition of the Society Unity of CustomaryLaw and Local Regulations. The two important term was discussed i.e. (1) the political principles of the legalpluralism whether as the recognition direction for the socialunity of the customarylaw; (2) the rationale for the need to recognize the socialunity of the customarylaw with a localregulation. The customarylawunity has a specificity that requires flexible regulation in the law, and enforcement to its acknowledgment with local regulations. The utilization wonder, the law can make people happy by ensuring access to their rights. The recognition of customarylawunity society guarantees access to rights, in accordance with laws that mandate acknowledgment with local regulations. The legal certainty requires that the law can be formulated, unlike a clear and systematic way. It can be made thus, it is clear about the recognized identity is given for more limited scope and local government to be better recognize local uniqueness.
Each Pancasila contains a theoretical-conceptual framework. The first precept, conceptualizing that divine values as a source of ethics and spirituality is considered important as the ethical foundation of state life. The second precept, conceptualizing that universal human values derived from God's law, natural law and human social nature are considered important as the ethical-political fundamentals of state life in world relations. The commitment of the humanitarian struggle is ideally universal but its historical-sociological implementation is particular. Universal values in the discourse of humanity must be classified with the treasury of local wisdom, global vision must be combined with the digestibility of local culture. The third precept conceptualizes that the actualization of the ethical values of humanity must first be firmly rooted in an environment of closer national relations before reaching further world associations. In internalizing the values of human unity, Indonesia is a national unity state that overcomes the understanding of groups and individuals. The fourth principle conceptualizes that the value of God, the value of humanity and the value of nationhood in their actualization must uphold the people's sovereignty in the spirit of consultation led by wisdom. In the vision of deliberative democracy, 1 Frans Magnis Suseno, Berebut Jiwa BangsaI :Dialog, Perdamaian dan Persaudaraan, Kompas, Jakarta, 2006, P. 175
by the customary courts in examining and prosecuting a case is based on the localcustomarylaw, making it impossible to define uniformly on the thousands of structures and customary justice mechanisms that live within its indigenous people across the region of Indonesia. It needs to be emphasized that what is meant by customary justice here is not part of the state judicial system, nor the continuation or new forms of customary justice as a translation of inheemsche rechtspraak known at the colonial time of the Dutch East Indies government and of which had been abolished through the enactment of Emergency Act Number 1 of 1951.Therefore, the present existence of customary justice in the Republic of Indonesia is a fact of legalpluralism 32 , because in the area of public entities customarylaw, apart from
The obligation to fulfill is conceived as requiring the governments to evaluate various policies and regulations as well as planning and implementing policies for the enjoyment of rights of the customary or indigenous people (Suwitra, 2010). Recognition and respect of the customary communities is stated in Article 18 B of the 1945 Constitution of Republic of Indonesia. Definition of the customarylaw communities (Pakraman) as a community or traditional social organization in Bali can be identified as having the characteristics of: (1) it has a unity tradition and manners of social life; (2) having the Kahyangan Tiga or the Kahyangan Desa as a place of worship for its people; (3) has an area with specific boundaries that clearly have its own property, and (4) is entitled to manage its own household. Meanwhile on the other side, the village government is a system of government in running the authority and the power to regulate the levels of government village. In Government Regulation No. 72 of 2005 on the Village, the Village Administration is the implementation of government affairs by the Government of the Village and Village Consultative Body to regulate and manage the interests of local communities.
concept has been extensively used in the field of EU law to describe the ‘clash of final authority’ 2 between the EU legal order and the national legal order. In this case, the
concept captures the conflicting co-existence of two allegedly autonomous and complete legal systems or orders characterised by a court with general and compulsory jurisdiction. Here pluralism refers to a plurality of the same kind, the legal ‘system’ or legal ‘order’ generated by the modern state and its freedom to conclude international treaties and delegate interpretive authority to international courts (an authority conferred to the Court of Justice of the European Union (CJEU) in the case of the EU). While those two classical concepts of legalpluralism significantly differ, they also share some important assumptions. Most importantly, they both presuppose a ‘legal system’ or a ‘law-like’ normative order displaying a distinctive structure (eg an institutionalised system of rules and sanctions) whose boundaries can be determined and distinguished from others (or from non-law). Both concepts of legalpluralism determine those boundaries differently. Socio-legal scholars may have abandoned the search for a social- scientific concept of law in framing legalpluralism, but they still maintain that normative ‘orders’ or ‘systems’ exist and that those entities governing social relations can be distinguished a posteriori, that is, by observing and reconstructing normative practices and contrasting them with the state ones. This can take a variety of forms and methods (more empirical or more interpretive, Verstehen-like). But sociological pluralism must, if it is to differ from monism, imply a point of separation and/or friction between two distinct and complex ontological entities (‘state-law’ vis-à-vis ‘non-state law’ or ‘non-state law’ vis-à-vis ‘non law’).
The reason why a particular state acts in a certain way are varied but are closely allied to how it perceives its interests. This in turn depends upon the power and role of the state and its international standing. Accordingly, custom should to some extent mirror the perceptions of the majority of states, since it is based upon usages which are practiced by nations as they express their power and their hopes and fears. But it is inescapable that some states are more influential and powerful than others and that their activities should be regarded as of greater significance. This is reflected in international law so that custom may be created by a few states, provided those states are intimately connected with the issue at hand, whether because of their wealth and power or because of their special relationship with the subject-matter of the practice, as for example maritime nations and sea law. Law cannot be divorced from politics or power and this is one instance of that proposition. 36
4. Doctorate Candidate of Law Faculty, Brawijaya University, Malang, Indonesia and Lecturer of Law Faculty, Malikussaleh University, Aceh, Indonesia.
The system of local wisdom reflected in local knowledge and technology systems in various areas dominantly still covers traditional values as appear from the way they do conservation principles, management and exploitation of natural resources. Spatial planning of the customarylegal community in Aceh known as Mukim. According to the fact, the problem formulation refers to whether the spatial planning in line with local wisdom of customarylegal community in Aceh. This normative legal research uses interpretative method. This study shows that the spatial planning based on local wisdom of Aceh originally has its own traditional arrangement by Mukim . First is the spatial division aspect, second is institutional aspect, and third is arrangement aspect. Based on arrangement aspect, it relates to value, prohibition, and its arrangement mechanism. Spatial planning that reflect local knowledge of indigenous communities in Aceh that integrates the interests of economic, ecological, social and cultural in a region as a system.
To this end, these are a multiplicity of effects that customarylaw can have on social development. For one, it is the law that applies to a great majority of the Nigerian people and so its enhancement, or otherwise enforcement, will guarantee a smooth and progressive dispute resolution and social and individual transactions can become much more effective. Secondly, customarylaw is the law that governs and regulates almost all informal transactions in Nigeria such as marriage and inheritance issues as well as land tenure in rural societies. As such, its refinement and enforcement would definitely achieve some social stability and progress. Thirdly, most of the vices that inherent un- der the received English adjudicatory process such as prolonged delays in litigation, corruption resulting in flawed judgments and high cost of litigation are minimized or nearly absent under the customary system of adjudication. There is a general percep- tion that the customary adjudicatory system is more trustworthy and reliable than the received English system and people are much more willing to imbibe it.
In implementing the limited incorporation system, in our opinion, the government can choose the following three formulas to amend the Papua Special Autonomy Act. Firstly, the government should recognize the customary court as a non-state justice system. Therefore, it has the authority to settle disputes and cases through non- litigation resolutions. Secondly, the government, has to clarify the jurisdiction of the customary court. It should be made clear that the court is authorized to adjudge both civil customary disputes and criminal customary cases of the Papua indigenous people. The customary court has the full jurisdiction to settle pure customary crimes. In double criminality cases, the court should be given the power to hand a maximum jail term of five years. The court, however, can only hand cultural punishment in double criminality cases which carry sentences of more than five years’ imprisonment. In that event, the state courts will then take over the case and make verdicts based on the customary court’s verdict. The third formula the government must take is making the customary court’s verdict as final so that it cannot be overruled. This kind of authority, however, can only be exercised on double criminality cases, whose sentence is less than five years in jail, and to non-human rights abuse cases.
This notion goes beyond the restricted sense in which Alan Watson first used the term ‘legal transplant’ decades ago (Watson 1974). Whereas Watson merely meant by this, the transfer of a legal rule from one jurisdiction to another, the notion of ‘interlegality’ buys into a pluralist conception of the law that takes into account its cultural background. Both notions concerning the relocation of norms and the resulting legal hybridization can be applied to describe the transferal of private arbitration to the litigation methods of the state law system. This is typically the case when disputes on marital contracts, inheritance, children custody or commercial agreements within immigrant communities have transcended the original boundaries of religious or unofficial law and reached the ordinary jurisdiction. State courts then turn into an ‘interface’ for heterogeneous and often conflicting legal codes. The termination of Muslim and Jewish marriages, which is ruled by contractual principles, has been often involved in such cases. In the Muslim tradition, the different procedures conducive to the dissolution of the marital bond entail a dissimilar degree of initiative on the part of the wife and the corresponding right to receiving compensation from the husband. The reparation incorporated into the marital contract is conceived as a means of sustenance for the wife in case of a sudden death of the husband, divorce or other emergency situations. In spite of its protective function, this type of endowment (Mahr) is not strictly a gift or a gratuity. An early sentence by an English court in 1965 interpreted the Mahr as a property right, rather than a lump sum or a marital compensation.
interest is instrumentally related to the quest for public equality (‘instrumentally just’ 81 in Christiano’s terms).
This is precisely where the right to freedom of expression gains prominence. Allowing individuals to widely express their views in public equally ensures that their interests are equally taken into consideration (on issues of public interest, of course). Given the fact of deep pluralism, ‘a person can learn just as much by having his ideas expressed by others and responded to as he can by expressing his ideas himself’. 82 If those interests cannot be expressed in public equally, it involves ‘a disastrous loss of standing among one’s fellows’. 83 If the society is regulated by norms one cannot endorse, and if one’s right to expression is not respected equally, then it ‘gives one good reason to think that the dominant interests are being advanced and that one’s own interests are not being advanced’. 84 It is therefore crucial to the egalitarian argument for democracy that individuals be equally entitled to publicly participate in the process of deliberation in order for them to see that they are treated as equals: ‘the thought is that when an outcome is democratically chosen and some people disagree with the outcome, as some inevitably will, they still have a duty to go along with the decision because otherwise they would be treating the others unfairly’. 85 As a result, when the ECtHR justifies its interpretive authority by relying on pluralism, one can infer that it contributes the democratic legitimacy of a domestic piece of legislation. The authority is exercised not in the name of a novel political community but in the name of the democratic community of the state party in question — and the democratic ethos that comes with it.
“My leading question for these studies has been framed in terms of interlegality. National law and locallaw do not exist the one next to the other as self-contained entities or like billiard balls that perhaps hit each other, instead they are closed, massive entities in itself. On the contrary, there has been and there is a constant interpenetration between, for instance national Norwegian law and the legal sensibilities of the original Nordic inhabitants, the Sami. Certainly this often seems to be a one-way penetration only, from the powerful top to the bottom, but the minorities are not just helpless victims. They appropriate majority concepts and build these actively into their own legal outlook. Sometimes there is such penetration in the reverse direction, when elements of minority law are accepted within the dominant legal order and perhaps even leave an imprint on the dominant legal concepts, procedures and practices.” (Hoekema, 2005: 6) And “It can be defined as a process and as an outcome. A process of adoption of elements of a dominant legal order, both national and international, and with frames of meaning that constitute these orders, into the practices of a locallegal order and/or the other way round. Or as the outcome of such process: a hybrid new legal order.” (Hoekema, 2005: 10 - 11)
The introduction of the Black Administration Act 38 of 1927 meant that customarylaw was granted full recognition in both traditional and commissioner’s courts . The usage or application of customarylaw would be applied at the discretion of the commissioner. The recognition of customarylaw created a dual system with separate and inferior system of justice for Africans, and left the common law system of justice for all other South Africans . The provisions of the Native Administration Act of 1927 included regulations on marriage, distinguishing between civil marriages and unions that did not constitute a legal marriage . Women were recognised as minors and subjected to their husband’s legal authority irrespective of age or marital status. Sibanda (2010) argues that the Act served as a means of entrenching a uniform system of indirect rule in South Africa whereby rational leaders became state agents in administering the affairs of those over whom they were appointed to rule . This was evident through the establishment of the Traditional Leadership and Governance Framework Act No 41 of 2003. The objective of the Act was to recognise traditional communities; establish and recognise traditional councils and to provide a statutory framework within which traditional leadership will operate. The role of traditional leaders therefore, includes land administration; health and welfare, safety and security; the management of natural resources and disaster management. Provision for tribal levies from the Act (TLGFA) was enacted in Limpopo Limpopo Act No6 of 2005.
System 303; Humbey et al Introduction to Law 144.
49 Custom in this context refers to the unwritten customs in society that obtained authority
over a period of time. However, in order for a custom to obtain legal status, it has to comply with certain requirements and be affirmed by a court of law. The well-known case of Van Breda v Jacobs 1921 AD 330 serves as confirmation of the requirements which must be met. Also see Hahlo and Kahn South African Legal System 302-303; Humbey et al Introduction to Law 145. In Shilubana v Nwamitwa 2009 2 SA 66 (CC) para 54, the Constitutional Court pointed out that there are important differences between custom and customarylaw. The former refers to practices that could fill normative gaps in the common law. This means that custom is not an "original source of law capable of independent development" but simply an "accessory source". Conversely, customarylaw is an independent source of law which can develop on its own.
Policy recommendations (Chapter 4, section 4.1 and Chapter 5)
What is needed is a broader economic perspective that weighs the pros and cons to welfare, that is, the benefit of correcting market failure versus the cost of government failure and the protection of public versus private interests. This weighing has not yet been done; it is merely asserted by governments and Bars that the benefits of the restrictions are large enough to justify current policy, without reference of the cost of this policy. The benefits of regulation (which are only possible and not quantified) dominate the discussion; any possible gains of re-regulating the market for legal services in consumer surplus are only mentioned in passing, if at all, and they are not discussed. Since cost-benefit analyses of various – less and more restrictive – regulatory schemes are lacking in all countries we recommend that national regulators should analyse the specific public interest in their national markets of legal services. Subsequently, we recommend that governments list various regulatory options next to the current regulatory scheme. We then recommend that a cost- benefit analysis be performed on the current level of regulation compared to other levels of regulation that also guarantee the public interest at stake. In this respect, our conclusions support the European Commission’s ‘Better regulation of professional services project’.
Qanun RTRWA should not deviate from the provisions stipulated by the Regulation of the Minister is hierarchical
Under Article 14 of Law Number 12 Year 2011 on the Establishment of Legislation, the substance of the Regional Regulation is the whole substance of the framework of the implementation of regional autonomy and duty of assistance and to accommodate special conditions regions (italics from author) as well as a further elaboration with higher Regulation legislation. Legislation related to the position, which is placed at the bottom of the hierarchy of legislation, both in the MPR Decree No. III/MPR/2000 as well as in Law No. 10 Year 2004 on the Establishment of Legislation, both Bagir Manan and Laica Marzuki disagreed. Laica Marzuki assume that we are fooled. The correct place for the Regional Regulation (Perda) is under the Act. Opinions Laica Marzuki and Bagir Manan, stated in the Public Hearing (RDPU) Changes related to the plan of Law No. 10 of 2004, in Meeting Room of the House of Representatives Legislation Council, Jakarta, in February 2010 (Fadli, 2011). In line with the opinion of Laica Marzuki, the authors analyze that position Qanun RTRWA under and subject to government regulation (PP), Ministry of Public Works (PermenPU) No. 15/PRT/M/2009 on Guidelines for Preparation of Spatial Plan Province and evaluation by the Ministry of the Interior (Home Affairs) of the Qanun RTRWA was passed, interrupting the delegation of authority that comes from Act No. 44 of 1999, Act No. 18 of 2001 and Act No. 11 of 2006. As can be seen in figure 1 below scheme.
protective provisions for the rights of indigenous communities. These rights are usually less formalized in states, such as Chile, Argentina and Brazil, which have not obtained new constitutions since 1989, when ILO 169 was adopted. However, these rights are given high formal standing in Colombia, Ecuador, and Bolivia, where new constitutions have been adopted since 1989, and in Mexico, where extensive constitutional reform was conducted in 2011. For example, Article 246 of the Colombian Constitution (1991) permits authorities of indigenous peoples to exercise some jurisdictional functions within their territories in accordance with their own laws and procedures. Article 257 of the Constitution of Ecuador (2008) provides for the formation of indigenous or Afro- Ecuadorian territorial districts. Article 30 of the Bolivian Constitution (2009) protects cultural rights and rights of consultation for indigenous peoples. Articles 289-296 provide for certain powers of indigenous self-government, and they establish a framework in which indigenous communities can acquire formal autonomy (as autonomías). Article 192(3) declares that the state will reinforce indigenous justice. Indeed, the constitution adopts as a basic norm that indigenous courts form an equally ranked part of the legal system as a whole.
In section one, this comment provides a basic overview of customarylaw and some of its conceptual difficulties. I argue that the element of CIL distinct ly responsible for its ineffectual application is opinio juris. This section also examines the argument that treaties, specifically multilateral treaties, provide adequate evidence of a customary norm. Evidence has two main functions within CIL, it supports the existence of a current norm or indicates the development of a new norm. Multilateral treaties involve such complex interactions between parties that their use as evidence of CIL would seem to supply both of these functions. In section two, I argue that relying on a multilateral treaty to provide evidence of an emerging customary norm allows courts, scholars, and policy makers to overlook other relevant evidence. This results in the erroneous assertion of customary international law.