International Journal of Indonesian Studies Volume 1, Issue 3 | Page 104

INTERNATIONAL JOURNAL OF INDONESIAN STUDIES SPRING 2016 Living adat Law, Indigenous Peoples and the State Law: A Complex Map of Legal Pluralism in Indonesia Mirza Satria Buana Biodata: A lecturer at Lambung Mangkurat University, South Kalimantan, Indonesia and is currently pursuing a Ph.D in Law at T.C Beirne, School of Law, The University of Queensland, Australia. The author’s profile can be viewed at: http://www.law.uq.edu.au/rhd-studentprofiles. Email: [email protected] Abstract This paper examines legal pluralism’s discourse in Indonesia which experiences challenges from within. The strong influence of civil law tradition may hinder the reconciliation processes between the Indonesian living law, namely adat law, and the State legal system which is characterised by the strong legal positivist (formalist). The State law fiercely embraces the spirit of unification, discretion-limiting in legal reasoning and strictly moralrule dichotomies. The first part of this paper aims to reveal the appropriate terminologies in legal pluralism discourse in the context of Indonesian legal system. The second part of this paper will trace the historical and dialectical development of Indonesian legal pluralism, by discussing the position taken by several scholars from diverse legal paradigms. This paper will demonstrate that philosophical reform by shifting from legalism and developmentalism to legal pluralism is pivotal to widen the space for justice for the people, particularly those considered to be indigenous peoples. This paper, however, only contains theoretical discourse which was part of pre-liminary research data. Further research should expand the study by incorporating an empirical aspect. Keywords: legal pluralism; living adat law; legal formalist; legal centralism; Indonesian legal system Introduction Today, Indonesia still normatively recognises the existence of living adat law and Indonesian indigenous peoples as evidenced by the wording of the Indonesian 1945 Constitution Article 18B (2) that states: The state recognises and respects integrated legal indigenous communities (kesatuan masyarakat hukum adat) along with their traditional customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law. Article 28i (3) on Human Rights Chapter also states a similar idea. However, Hooker (1975) said that this written recognition is insufficient to protect and sustain the existence of living adat law because the position of living adat law is ambiguously inferior to the State law. Law No 5 of 1960 concerning Basic Agrarian Law recognises the land rights of indigenous communities with the following conditions: 104 | P a g e