Abstrack:
Much of the debate regarding legal pluralism is characterized by polarized presumptions that disregard the complexity and variety of local situations. Plural legal orders lie at the centre of this contestation with both state and non-state actors mobilizing law and culture towards ends that can be either inclusive or exclusive. Recognition, incorporation, and decentralization are ways by which a non-state legal order may become part of a pluralized state legal order. All involve questions of: normative content; jurisdiction (over territory, issues and persons); authority (who has it, who bestows it, and how); adjudicatory process (procedure); and enforcement of decisions. Recognition presents numerous conceptual challenges and policy dilemmas. Claims to recognition based on religious, minority ethnic or indigenous identities each have distinct legal and socio-historical foundations. The incorporation or recognition of customary law presents particular challenges. One approach is ?translation?, which attempts to find precisely equivalent rules or institutions that can be recognized or incorporated, but which is not always possible in practice. A different approach is to recognize customary laws without elaborating their content but this also raises questions about the state?s adherence to human rights standards. The calls to recognize the ?customary? do not always imply a retreat into the past: they may legitimate present and future political claims. Such calls are often associated with claims to ?authenticity?. These are not only reminiscent of colonialism, but have policy and human rights implications: how is ?authenticity? and ?expertise? established and thereby whose knowledge and power is privileged. The demand to recognize cultural particularity in law is based on the principle of universal equality but, by definition, it implies acknowledging and giving status to something that is not universally shared. In addition, those who demand recognition of their cultural diversity may themselves prove intolerant of other differences and pluralities. Further, recognition by a state that is considered to be alien and inequitable can erode the non-state authority?s legitimacy. Finally, when state recognition requires the formalization of custom, this may block the dynamic evolution of customary laws and the internal political contestation that drives it. Indonesia with its legal pluralism is facing the problems mentioned above. Conflict arises from the contestation between state law and customary law, especially in natural resources area. Land conflict in Mesuji, West Sumatera is one example of how legal pluralism cannot bridge differences and legal issues in the community. It happens since state law is placed in the top position and eliminate the existence of customary law. This paper will present some examples of conflict between state law with customary law in Indonesia. These examples are expected to be a reference to the ideal model in the implementation of legal pluralism in Indonesia.
Full Text: