ARCHIVES
VOL. 10, ISSUE 2 (2024)
Research proposal on positivization of Customary law in dispute resolution
Authors
Yulfan, Sulaiman, Teuku Muttaqin Mansur
Abstract
Based on the formalization of customary law is
a change in customary law norms that were previously unwritten or other terms
are positivization, within the scope of customary law there is also a process
of positivization. However, the positivization of customary law will cause
several problems, due to differences in sources, customs originate from customs
and traditions that develop in society, while positive law comes from laws and
regulations set by the Government. The existence of customary law in the
national legal system in Indonesia there are various ethnic and cultural groups
that coexist. Aceh after the birth of Law Number 18 of 2001 concerning Special
Autonomy for the Province of the Special Region of Aceh as Nanggroe Aceh
Darussalam Province and Law Number 11 of 2006 concerning the Government of Aceh
has given special treatment to Customary institutions. Constitutionally, the
1945 Constitution has recognized the existence of indigenous peoples which was
later strengthened by the birth of Law Number 6 of 2014 concerning Villages,
specifically regulating villages as a unit of customary law communities (MHA).
In Aceh, villages are referred to as gampong or other designations and village
regulations are better known as qanun or reusam. This study aims to determine
and explain whether the influence of legal positivization can reduce the nature
and characteristics of Acehnese customary law in dispute resolution and to
determine and analyze the supporting and inhibiting factors of Acehnese
customary law positivization. The research method used is a normative juridical
method with a statutory approach. The data sources used are derived from
primary, secondary and tertiary legal materials. The data obtained was then
analyzed by quality method The results showed that. First, the influence of
legal positivization in dispute resolution results in customary law being
weakened and uprooted from the roots, dispute resolution is only limited to
formalities in the village that do not provide justice and benefits for
indigenous peoples. Judicial practice is limited to accelerating local law by reproducing
customary or local laws in formalistic form (qanun) but does not provide
substantive justice. The nature and characteristics of Acehnese customary law
in dispute resolution, which should reconcile with the mechanism of
'discussing' turned into 'reading'. Second, the supporting factors for the
positivization of customary law arise due to the current modernization and
additional functions of gampong leadership in addition to customary leadership
as well as administrative leadership. Customary law communities currently
prioritize legal certainty alone (juridical dogmatic) as their goal, no longer
on justice (ethical) and expediency (utilitis) and the obstacle factor to legal
poitivation is diversity in the interpretation and implementation of customary
law, because each region has different practices, differences in values and
priority goals between customary law and positive law.
Download
Pages:181-184
How to cite this article:
Yulfan, Sulaiman, Teuku Muttaqin Mansur "Research proposal on positivization of Customary law in dispute resolution". International Journal of Law, Vol 10, Issue 2, 2024, Pages 181-184
Download Author Certificate
Please enter the email address corresponding to this article submission to download your certificate.