FROM FOLK LAW TOWARDS JURISTS LAW

WHAT IS ADAT LAW?

It is the customary law of the indigenous peoples of Indonesia.

According to Jalaludin, Islamic law gave provision for the application of Adat
law of the country as long as they are not contrary to the Islamic law.
Human life, social and individual must always be in harmony with the
universe
Man has to live in conformity with the teachings of nature symbolized by
examples of events governed by nature
Man has to be sure that natural events are only metaphorical examples for
human conduct to follow

DIFFERENCE WITH WESTERN CODIFIED LAW

Unwritten law without a specialized body for law making nor pre-existing
substantive rules to follow for practice
Viewed as a set of classifications of everyday conduct
Classification is not rational but metaphorical; its contents are formulated in
metaphorical statements such as sayings, proverbs, and poems
NECESSITY OF UNDERSTANDING STRUCTURE OF ADAT LAW

Adat law can only be identified in the decisions of the Adat functionaries in
or outside disputes in close relation with the existing structure bindings and
values prevailing in the community
o Decisions of functionaries represent only the outskirts of Adat law (do
not stand alone)
o Values prevailing in the community
Recent studies on Adat law also initiated by the Adat elders in Minangkabau
o Not easy to understand theories because there is inconsistency in the
use of terms, formulation and content of theories
o Only through understanding the principles underlying the folk
views=> analysis of the construction of these theories
FUNCTIONS OF ADAT FUNCTIONARIES
Since it consists of metaphorical statements, problem is how the Adat functionaries
found ways to translate the metaphors into forms which will meet the needs in
controlling human social conducts in practical communal life
Answer: Person or functionary concerned must have a noble and reliable
personality

Adat teaching gives strong emphasis on the improvements of the individual

for forming this personality
 o Obtained only through the fostering of the feeling of embarrassment
in the individual
o The finer feeling of the embarrassment = bigger responsibility in
personality
o Accordingly, he will have the power to understand the metaphorical
formulations of the true and successive Adat
Should have a broad experience in dealing with Adat in his community
Can only be obtained by acting as an assistant of Adat elders in the
community when dealing with concrete Adat cases
Long intensive training through observation, listening and doing

Operational Principles- guide the functionaries in finding and creating the real
form of Adat for concrete cases
3 principles:
1. Principle of peaceful social life (kerukanan)
2. Principle of properness (kapatutan)
3. Principle of harmony in the community (kalarasan)

MAIN CHARACTERISTICS OF ADAT LAW IN THE FOLK SPHERE

1. There are no preexisting substantive rules. Functionaries are guided only by the
structure and structural bindings of Adat law in which the living values and
operational principles form their decisions.
2. Purpose of dispute settlement is to restore good relations, peach and harmony
between parties concerned and within community as well
Decisions must be exhaustive, functionaries have to answer all possible questions
with the case, which might cause other kinds of troubles between the parties
3. Since they enjoy full faith from community, they are fully responsible for
rendering a just decision.
4. Since no preexisting substantive rules, decisions of functionaries do not imply
the discovery and formulation of a substantive rule.
Does not apply the principle similar cases are to be dealt with in similar ways
FOLK SPHERE
Metaphorical typologies and
explanations are the bases of creative
elaboration by functionaries to arrive
at a reasonable expression of adat law
in the concrete decisions.
Idea of pre-existing substantial legal
rules are alien in the Adat law system.
In daily practice, functionaries
accomplish a very active creative role
in transforming metaphors into
concreate and reasonable Adat.
Real creative work; high and noble
personality, broad experience in life;
Functionaries are given the full respect
and faith for performing their task
Each decision applied only to that
particular case
Final goal is to restore harmony and
peace between the parties and
community
STATE COURT
Adat law was seen as a system of
unwritten rules that still needed to be
discovered and clarified.
Understanding of the relevant legal
rule would operate as legal base.
Idea of applying pre-existing
substantive rules was predominant.
Courts started to discover the still
unwritten legal rule, then applied it
through method of interpretation of
legal rules.
Functionaries were subjected to
substantive rules in Adat law. They had
to respect the rule, which restricted
their freedom
Similar cases are to be dealt with in
similar ways
Final goal is to apply the correct law
and realize justice