MAKALAH BAHASA INGGRIS

TENTANG HUKUM ADAT

DOSEN :

Dr. Suyadi, M.A.

DISUSUN OLEH :

M. YUSUF ABDURRAHMAN (1800874201008)

BIRGITTA RAHAJENG .N (1700874201491)

FAKULTAS HUKUM

UNIVERSITAS BATANGHARI JAMBI

TAHUN AJARAN

2018
 FOREWORD

All the praise and gratitude of the authors convey the presence of Allah
SWT , the prayers and greetings are also conveyed to the lord of the Great
Prophet Muhammad SAW , as well as his friends and family. With goodness he
has brought us from the realm of ignorance to a knowledgeable world.

In order to complete the task of the English Languange course in the Law
Study Program, the authors hereby take the title ‘Customary law.”

In writing this paper, the author realizes that this paper is still far from
perfection, both from the way of writing and its contents.

Therefore, the authors really expect cricticism and suggestions that can
build for the perfection of this paper.

Author,

M. YUSUF ABDURRAHAMAN
 TABLE OF CONTENTS

TITLEPAGEANDLISTOFNAMESFOR GROUP2……………………………………. . 1

FOREWORD………………………………………………………………............................... 2

TABLE OF CONTENTS………………………………………………………….................... 3

CHAPTER I INTRODUCTION……………………………………………............................ 4

1. Background ………………………………………………………………………… 4

2. Writing Objectives ………………………………………………………………............... 4

3. Benefits of Writing ……………………………………………………………. 4

CHAPTER IIDISCUSION……………………………………………………… 5

1. The birth process of Customary Law …………………………………… 5

2. Definition of Customary Law ………………………………………… .. ………. 7

3. Characteristics of Customary Law ………………………… 11

4. Customary Law Territory ………………………………………… . 13

5. Customary Law in society …………………………………………………………… . 15

6. Social control system …………………………………………………………………… 17

CHAPTER III CLOSING ………………………………………………………………… 21

BIBLIOGRAPHY …………………………………………………………………………… 22
 CHAPTER I
PRELIMINARY
1. Background

In today's sophisticated era, sometimes we forget the background of the birth of the
law that we know in the environment of social life in Indonesia and other Asian
Asian countries such as Japan as a country that is almost the same in ideological
settings, namely the existence of sources where the legal regulations unwritten and
grow and develop and maintained by the customs adopted by the community as a
reference and guide in steps.

The background in the preparation of this paper is first of all to understand the
terms and application of customary law and habits that exist in society as a social
and kinship implementation in society. Especially Indonesian society which is still
very strong and its existence is embedded and until now it has become a guideline
that cannot be separated from the current law (positive law).
2. The purpose of writing
The purpose of writing this paper is to find out:
1. About Customary Law

2. The birth process of Adatat Law

3. Understanding Customary Law

4. Characteristics of Customary Law

5. Customary Law Areas

6. Customary Law in society

7. Social control system

3. Benefits of Writing

The benefits of this writing are to add references to subjects of special citizenship
Customary Law courses and other fields that want to relate them to the topics
raised in this paper.
 CHAPTER II

DISCUSSION
1. PROCESS OF BORROWING OF INDIGENOUS LAW

Customary law is a legal system that is known in the environment of social life in Indonesia and
countries. Other countries such as Japan, India and China. Customary law is the original law of
the Indonesian people. The source is the unwritten legal regulations that grow and develop and
are maintained with the legal awareness of the community. Because these regulations are not
written and are growing, customary law has the ability to adjust and elastic. Besides that, it is
also known that customary law communities are a group of people who are bound by the
customary law as citizens together with a legal alliance because of the similarity of their place of
residence or on the basis of inheritance.

Terminology
There are two opinions regarding the origin of this customary word. On the one hand there are
those who claim that adat is taken from Arabic which means habit. Meanwhile, according to
Prof. Amura, this term comes from Sanskrit because according to him this term was used by
Minangkabau people about 2000 years ago. According to him adat comes from two words, a
anddato. A means no and dato means something that is material.

Debate over the term Customary Law

Customary Law was first put forward by Prof. SnouckHurgrounje is an Eastern Literary Expert
from the Netherlands (1894). Before the term Customary Law developed, it used to be known as
the AdatRecht. Prof. SnouckHurgrounje in his book de atjehers (Aceh) in 1893–94 stated that the
unmodified Indonesian people's law was de atjehers.

Then this term was also used by Prof. Mr. Cornelis van Vollenhoven, a Literary Bachelor who is
also a Law Degree who also served as Professor at Leiden University in the Netherlands. He
published the term AdatRecht in his book titled AdatRecht van Nederlandsch Indie (Customary
Law of the Dutch East Indies) in 1901-1933.

Legislation in the Dutch East Indies formally used this term in 1929 in the IndischeStaatsregeling
(Dutch Law), such as the Dutch East Indies Constitution, in article 134 paragraph (2) which took
effect in 1929.

In Indonesian society, the term customary law is unknown. HilmanHadikusuma said that the
term was just a technical term. This is said because the term only grows and is developed by
legal experts in order to examine the applicable law in Indonesian society which is then
developed into a scientific system.
In English, the term Adat Law is also known, but the development in Indonesia itself is only
known as Adatsaja, to mention a legal system which is said in the scientific world as Customary
Law.

This opinion is reinforced by the opinion of Muhammad RasyidMaggisDatoRadjoePenghoeloe

as stated by Prof. Amura: as a continuation of the struggle of life during over-prosperity because
the population is a little hesitant with abundant natural wealth, humans arrive at adat. While the
opinion of Prof. Nasroe stated that the Minangkabau custom had been owned by them before the
Hindus came to Indonesia in the first century AD.

Prof. Dr. Mohammad Koesnoe, S.H. in his book says that the term Customary Law has been
used by an Acehnese Ulama [1] named Sheikh Jalaluddin bin Shaykh Muhammad
KamaluddinTursani (Aceh Besar) in 1630. [2] Prof. A. Hasymim stated that the book (written by
Sheikh Jalaluddin) is a book that has a high value in the field of good law.

2. UNDERSTANDING OF INDIGENOUS LAW

Law is a set of customary norms and rules or habits that apply in a region. The term "habit" is a
translation of the Dutch word "gewoonte", while the term "adat" comes from the Arabic term
"adah" which means also habit. So customary terms and custom terms have the same meaning
that is habit.

According to the law, customs and customs can be distinguished. This difference can be seen in
terms of its use as a behavior or human behavior or seen in terms of the history of the use of its
term in law in Indonesia.

As human behavior the usual term means what always happens or what is common, so that habit
means custom. Adat can also be interpreted as a personal habit that is accepted and carried out by
the community.

The history of legislation in Indonesia distinguishes the use of custom and customary terms,
namely customs outside of laws and customs that are recognized by legislation. This led to the
emergence of the term customary law which is an unwritten law and written law. In the
Netherlands the country does not distinguish between customary and customary terms. If both
are legal, then it is called customary law (gewoonterecht) which deals with the law of law
(wettenrecht).

The term customary law itself comes from the Arabic term "Huk'm" and "Adah". The word
huk'm (jama ': ahakam) means command or order, while the word adah means habit. So
customary law is a habitual rule.

In Indonesia customary law is defined as genuine Indonesian law which is not written in the form
of legislation of the Republic of Indonesia which here and there contains elements of religion.
The terminology of "Custom" and "Customary Law" is often mixed up in giving an
understanding when in fact both are two different institutions.
Adat is often seen as a tradition so that it seems very local, outdated, not in accordance with
religious teachings and others. This is understandable because "adat" is a rule in the absence of
real sanctions (punishment) in the community except regarding the issue of customary sin which
is closely related to abstinence to do (taboo and qualat). Moreover, indigenous cultural terms
arise, customs, etc.

The Debate of Customary Law Devinition

According to the Big Indonesian Dictionary, custom is a rule (deed etc.) that is commonly done
or done since time immemorial; ways (behavior, etc.) that have become a habit; the form of
cultural ideas which consist of cultural values, norms, laws, and other rules related to a system.
Because the customary term that has been absorbed into Indonesian becomes a habit, the term
customary law can be equated with customary law.

But according to Van Dijk, it is not appropriate if customary law is defined as customary law.
According to him customary law is a complex rule of law that arises because habit means that so
long a person can behave according to a certain way so that a rule is born that is accepted and
also desired by the community. So, according to Van Dijk, customary law and customary law
have differences.

Meanwhile, according to SoejonoSoekanto, customary law is essentially a customary law, but a

habit that has legal consequences (das sein das sollen). Unlike the habit (in the usual sense), the
custom which is the application of customary law is the actions that are carried out repeatedly in
the same form towards the RechtsvaardigeOrdening Der Semenleving.

According to TerHaar, who is famous for his theory, Beslissingenleer (decision theory) revealed
that customary law includes all the regulations that are incarnated in the decisions of legal
officials who have authority and influence, and in their implementation are immediately
applicable and obeyed fully heart by those who are governed by the decision. The decision can
be in the form of a dispute, but it is also based on harmony and deliberation. In his writing
TerHaar also stated that customary law could arise from the decisions of the community.

SyekhJalaluddin explained that customary law is first of all a connection between the first and
then, on the side of existence or absence seen from repeated things. Customary law does not lie
in the event but in what is not written on the back of the event, while the unwritten one is a
mandatory provision that lies behind the facts that link to an event with another event.

TerHaar
TerHaar made two formulations which showed changes in opinion about what was called
customary law.

• Customary law is born and maintained by the decisions of indigenous peoples, especially
authoritative decisions from the heads of people (customary heads) who assist in the
implementation of legal actions, or in the case of conflict of interest in decisions of judges
charged with adjudicating disputes. , as long as these decisions are due to arbitrariness or lack of
understanding, they do not contradict the legal beliefs of the people, but are compliant and in
tune with that awareness, accepted, acknowledged or at least tolerated.

• Customary law that applies can only be known and seen in the form of decisions of legal
functionaries (power is not limited to the two powers, executive and judiciary). The decision is
not only a decision regarding a matter

official but also outside disputes are based on deliberation (harmony). This decision is taken
based on values that live according to the spiritual nature and social life of the members of the
fellowship.

Customary law is a form of cultural ideas which consist of cultural values, norms, laws, and
rules that are related to one another and have very strong real sanctions.
According to legal experts:

1. Prof. Mr. B. TerhaarBzn

Customary law is the whole rule that manifests in the decisions of customary heads and applies
spontaneously in society. Terhaar is famous for the theory of "Decision" which means that to see
whether something is already a customary law, it is necessary to see from the attitude of the legal
community authorities against violations of customary rules. If the authorities impose a verdict
on the violator, the custom is already a customary law.

2. Prof. Mr. Cornelis van Vollen Hoven

Customary law is the whole rule of community behavior that applies and has sanctions and has
not been codified.

3. Dr. Sukanto, S.H.

Customary law is a complex of customs which is generally not scripted, not codified and
coercive, has sanctions to have legal consequences.

4. Mr. J.H.P. Bellefroit

Customary law is a living regulation which, although it is not promulgated by the authorities, but
still respected and adhered to by the people with the belief that these regulations apply as a law.

5. Prof. M.M. Djojodigoeno, S.H.

Customary law is a law that does not originate with regulatory regulations.

6. Prof. Dr. Hazairin

Customary law is a precipitating decency in society, namely the rules of literary principles whose
truth has received general recognition in the community.
7. SoeroyoWignyodipuro, S.H.

Customary law is a complex norm that originates from people's sense of justice which is always
developing and includes regulations on human behavior in daily life in society, most of it is not
written, always obeyed and respected by the people because it has legal consequences (sanctions)
.
8. Profile. Dr. Soepomo, S.H.

Customary law is a law that is not written in an unwritten rule, covering the rules of life which
although not stipulated by the authorities but adhered to and supported by the people based on
the belief that these regulations have legal force.

From the limitations stated above, elements of customary law are seen as follows:

1. The behavior that is continuously carried out by the community.

2. The behavior is organized and systematic
3. This behavior has a sacred value
4. The decision of the customary head
5. There are legal sanctions / consequences
6. Not written
7. Adhered to in society

3. INDIGENOUS LAWS

1. Patterned Relegiues- Magical:

According to traditional Indonesian beliefs, every society is covered by supernatural powers that
must be maintained so that the community remains peacefully happy and others. There are no
restrictions between the world of birth and the occult world and there is no separation between
various kinds of life fields, such as human life, nature, ancestral spirits and the lives of other
creatures.

There are worship especially for the darp spirits to the ancestors as protectors of customs that are
needed for the happiness of society. Every activity or collective deed such as opening the land,
building a house, planting and other important events are always held relegieus ceremonies
which aim to have the purpose and purpose of getting blessings and no obstacles and always
succeeding well.

2. Communal or Social Patterns

This means that human life is always seen in the form of groups, as a whole. Individuals with
one another cannot live alone, humans are social beings, humans always live in a social life,
common interests take precedence over individual interests ...
3. Patterns of Democracy

That everything is always resolved with a sense of togetherness, common interests are prioritized
over personal interests in accordance with the principle of deliberation and representation as a
system of government.

There is a deliberation at the Village Hall, every action of village officials is based on the results
of the deliberations and so forth.

4. Pattern Cash

The transfer or transfer of rights and obligations must be carried out at the same time, namely the
event of surrender and acceptance must be carried out simultaneously, this is intended to
maintain balance in social relations.

5. Concrete Pattern

This means that there is a visible sign that each act or desire in each particular legal relationship
must be stated with tangible objects. There are no promises paid with appointments, everything
must be accompanied by concrete actions, there is no mutual suspicion of each other.

4. Reception InComplexu Theory (Religious Customary Law)

This theory was put forward by Mr. LCW Van Der Berg.

According to the Reception in Coplexu theory:

If a community embraces a certain adama, the customary law of the community in question is the
religious law that it embraces. If there are things that deviate from the relevant religious law,
then those things are considered as exceptions.
Against this theory almost all scholars give responses and criticisms include:

SnouckHurgronye:
He strongly opposed this theory, saying that not all Laws of Religion were accepted in customary
law. Religious law only influences human life which is very personal which is closely related to
belief and inner life, those parts are family law, marriage law, and inheritance law.

Terhaar argued:
Denies SnouckHurgrunye's opinion, according to Terhaar inheritance law does not originate
from religious law, but is indigenous customary law which is not influenced by Islamic law,
while inheritance law is adjusted to the structure and composition of the community.

This Reception in Comlexu theory is actually contrary to reality in society, because customary
law consists of original law (Polenesia Malay) with the addition of the provisions of the Religion
law, said Van Vollen Hoven.
It is admittedly difficult to describe the fields of customary law that are influenced by religious
law, this is due to:

1. Areas that are influenced by religious law are very varied and not the same for a society.
2. The thick and thin fields that are influenced by religious law also vary.
3. This customary law is local.
4. In a community consisting of citizens of different religious communities.Social control system

4. INDIGENOUS LEGAL AREAS

Prof. Mr. Cornelis van Vollenhoven divided Indonesia into 19 customary law environments
(rechtsringen). One area with the same outline, style and nature of customary law is called
rechtskring. Every customary law environment is further divided into several sections called
KukubanHukum (Rechtsgouw). The customary law environment is as follows.

1. Aceh (Aceh Besar, West Coast, Singkel, Semeuleu)

2. Land of Gayo, Alas and Batak
1. Tanah Gayo (Gayolueus)
2. Alas Land
3. Batak Land (Tapanuli)
• North Tapanuli; BatakPakpak (Barus), Batakkaro, BatakSimelungun, Batak Toba (Samosir,
Balige, Laguboti, LumbunJulu)
• South Tapanuli; Padang Lawas (TanoSepanjang), Angkola, Mandailing (Sayurmatinggi)
• Nias (South Nias)
1. Minangkabau Land (Padang, Agam, Tanah Datar, Limapuluh Kota, Kampar, Kerinci)
2. Mentawai (People of Pagai)
3. South Sumatra
• Bengkulu (Renjang)
• Lampung (Abung, Paminggir, Pubian, Rebang, Gedingtataan, TulangBawang)
• Palembang (lakitan child, JelmaDaya, Kubu, Pasemah, Semendo)
• Jambi (Orang Rimba, Batin, and Penghulu)
• Enggano
1. Tanah Melayu (Lingga-Riau, Indragiri, East Sumatra, Banjar People)
2. Bangka and Belitung
3. Kalimantan (West Kalimantan Dayak, Kapuas, Hulu, Pasir, Dayak, Kenya, KlemantenDayak,
LandakDayak, TayanDayak, DayakLawangan, LepoAlim, LepoTimei, Long Glatt,
MaanyanDayat, DayakMaanyanSiung, DayakNgaju, DayaksOtDanum, PunanDayak
Connectors)
4. Gorontalo (BolaangMongondow, Boalemo)
10. Toraja Land (Central Sulawesi, Toraja, TorajaBaree, West Toraja, Sigi, Kaili, Tawali,
TorajaSadan, To Mori, To Lainang, Banggai Islands)
11. South Sulawesi (Bugis, Bone, Goa, Laikang, Ponre, Mandar, Makasar, Selayar, Muna)
12. Ternate Islands (Ternate, Tidore, Halmahera, Tobelo, Kep. Sula)
13. Maluku Ambon (Ambon, Hitu, Banda, Uliasar Islands, Saparua, Buru, Seram, Kei Islands,
Aru Islands, Kisar)
14. Irian15. Kep. Timor (Timor Islands, Timor, Central Timor, Mollo, Sumba, Central Sumba,
East Sumba, Kodi, Flores, Ngada, Roti, SayuBima)
16. Bali and Lombok (Bali Tanganan-Pagrisingan, Kastala, KarrangAsem, Buleleng, Jembrana,
Lombok, Sumbawa)
17. Central Java, East Java and Madura (Central Java, Kedu, Purworejo, Tulungagung, East Java,
Surabaya, Madura)
18. Kingdom Region (Surakarta, Yogyakarta)
19. West Java (Priangan, Sunda, Jakarta, Banten)

5. INDIGENOUS LAW IN THE COMMUNITY

Law has a very large role in the association of life in the midst of society. This can be seen from
order, tranquility and the absence of tension in society, because the law regulates the
determination of rights and obligations and regulates, determines rights and obligations and
protects individual interests and social interests.
According to J.F. Glastra Van Loon's legal role in society:

- Curb the community and social life arrangements.

- Complete the dispute.
- Maintain and maintain order and rules if necessary by force.
- Maintain and maintain these rights.
- Change the rules and rules in order to adjust to the needs of the community.
- Meeting the demands of justice and legal certainty by realizing the above functions.

customary law community, a particular community group or community that lives together in a
particular region or region that is bound to certain laws, which are obeyed, implemented and the
law is maintained, in which there are sanctions as a means of coercion. Thus it is not a customary
law community if it does not have and is bound by certain laws. Such laws have cumulative
properties, namely:

(1) regulating,
(2) force,
(3) implemented or obeyed, and
(4) maintained sustainably.

With such legal nature, the legal community adapts to the existence of territories that are valid
for members of their customary law community and territorial territories, which are then given
the juridical name of customary rights. conflicting

de facto recognizes the customary rights. This is the juridical basis why the State must recognize
the existence of customary rights. From an anatomical point of view, the ideal norm in the
historic framework of the Indonesian constitution contained an acknowledgment of the existence
of social institutions from indigenous law communities.

In this position, the State must constitutionally acknowledge its existence. Institutional
implementation of the customary law is structured as a social institution
with acknowledgment

(1) certain communities,

(2) customary law with its cumulative nature,
(3) customary institutions that can be seen ceremonially clearly when
traditional ceremony takes place,
(4) customary heads or tribes as between
others who have the authority to punish, and
(5) customary rights.

6. SOCIAL CONTROL SYSTEM

A. SOCIAL CONTROL

In everyday life, as long as all members of the community are willing to obey the rules that
apply, almost certainly social life will be able to take place smoothly and orderly. But, hoping
that all members of society can behave always obedient, it is certainly an expensive thing. In
reality, of course not everyone will always be willing and able to fulfill the provisions or rules
that apply and even not infrequently there are certain people who deliberately violate the rules
that apply to the interests of their personal or group.

In detail, several factors that cause citizens to behave deviate from the prevailing norms are as
follows (Soekanto, 181: 45)

1. Because the existing rules are not satisfactory for certain parties or because they do not meet
their basic needs.
2. Because the existing rules are not clear in their formulation, which gives rise to various
interpretations and applications.
3. Because in the community there is a conflict between the roles held by the community, and
4. Because it is indeed not possible to manage all the interests of the community equally.
In situations where people take into account that by violating or deviating from a norm he will
even be able to get a reward or something greater, so in this case enforcement for the sake of
upholding the norm must be carried out by means of an external force. Norms are no longer self-
enforcing (social norms can no longer be carried out on their own strength), and social control
officers will have to retain them by threatening or imposing sanctions on those who are proven to
violate or deviate from the norm.

If it turns out that norms are no longer self-enforcement and the socialization process is not
enough to have positive effects, then the community - based on the power of its authority - starts

moving to carry out social control.

According to SoerjonoSoekanto, social control is a planned or unplanned process, which aims to
invite, guide or even force citizens to adhere to the values and rules that apply.

Object (target) of social supervision, is the behavior of the community itself. The purpose of
supervision is so that people's lives take place according to patterns and rules agreed upon
together. Thus, social control includes both planned and unplanned (spontaneous) social
processes to direct someone. Also sosiap control is basically a system and process that educates,
invites and even forces citizens to behave in accordance with social norms.

1. The educating system is intended so that within a person there is a change in attitude and
behavior to act in accordance with the norms.
2. The system invites the aim of directing that one's actions are based on norms, and not
according to the will of individuals.
3. The forced system aims to influence explicitly so that someone acts according to norms. If he
does not want to obey the norm or norm, then he will be penalized.
In social control we can see social control proceeding on three patterns, namely:
1. Control groups against groups
2. Control the group against its members
3. Personal control over other individuals.

B. TYPES OF SOCIAL CONTROL

Social control is intended so that community members adhere to social norms so as to create
harmony in social life. For this purpose, there are several types of controls. This classification is
made from the point of view of where someone sees the supervision.

a. Preventive control is social control carried out prior to the occurrence of violations or in a
version of "threatening sanctions" or efforts to prevent deviations from norms and values. So,
preventive social control efforts are carried out before irregularities occur.

b. Repressive control; social control carried out after a violation with the intention of restoring
the situation so that it can proceed as before by being carried out in the version of "dropping or
imposing, sanctions". This control serves to restore harmony that is disrupted due to violations of
norms or deviant behavior. To restore the original condition, recovery is needed. So, control here
aims to awaken those who deviate about the consequences of these deviations, and at the same
time to comply with social norms.

c. Combined social control is an effort that aims to prevent the occurrence of irregularities
(preventive) while returning irregularities that are not in accordance with social norms
(repressive). Control efforts by combining these preventive and repressive features are intended
to prevent a behavior from deviating from the norms and even if there is a deviation it does not
harm the person concerned or others.

d. Formal (formal) control is supervision based on assignments by official bodies, such as state
and religion.

e. Unofficial (informal) supervision is carried out for the sake of maintaining unofficial
regulations belonging to the community. It is said to be unofficial because the regulation itself is
notclearly formulated, not found in written law, but only reminded by citizens.
f. Institutional control is the influence that comes from a cultural pattern owned by a particular
institution. The patterns of behavior and rules of the institution not only control the members of
the institution, but also the citizens who are outside the institution.

g. Personal control is the influence of good or bad that comes from certain people. That is,
influential figures can be known. Even genealogy and biography.
 CHAPTER III
COVER
A.Conclusion

The conclusion that we can draw on in the discussion of Customary Law papers is that we think
that many customary law are backward but that is not an absolute value possessed by Customary
Law. However, it turns out that customary law has been able to explore the habits of the past
society which then affect the existing legal system because customary law is the axis of the birth
of all Laws because customary law is born from personal habits to groups and becomes a
tradition that is then followed and followed. in the written law that we know today, customary
law can also be an intermediary to know the behavior of the community in the future, the point is
that customary law is not a backward thing by the times.

Suggestion

• The advice that we suggest can only hope to readers, especially Faculty of Law students, that
we must look at Customary Law as a Historical background from the birth of the Law itself from
the psychological aspect Customary law cannot be removed and separated from the existing law.

• There are studies especially Law students to directly go to the Customary Law field in the
community so that data collection and the essence of Customary Law itself are more real.

• In order for the reference book on customary law to be enriched with things that are indeed
relevant to the reality in the community.

• In order for a paper like this to get the support and positive response to be a reference material
for the preparation of the next paper.
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