Skip to main content Accessibility help
×
Hostname: page-component-78c5997874-xbtfd Total loading time: 0 Render date: 2024-11-05T06:40:21.154Z Has data issue: false hasContentIssue false

Chapter 5 - Mapping the Relationship of Competing Legal Traditions in the Era of Transnationalism in Indonesia

Published online by Cambridge University Press:  12 January 2018

Ratno Lukito
Affiliation:
State Islamic University Sunan Kalijaga Yogyakarta
Get access

Summary

When there is plural normativity, competition occurs between different legal traditions. This seems the direct result of the plurality of norms itself, which leads to conflicts of law, especially on interpersonal matters among parties with different legal traditions. The current direction of legal pluralism studies seems to follow this trend, where the competition between different laws existing within national law occupies the central theme. The state factor is here understandably dominant since the study is preoccupied mainly with the state's role in the encounters and its efforts in the process of conflict resolution. Be that as it may, the approach used in this kind of study is always characteristically topdown, where the state, through its formal laws, is viewed as the main agent for the resolution of conflicts of laws. In our view, however, this method puts too much emphasis on the role of the state and neglects the real societal factors which lead people often to take active roles in the process of rapprochement between competing legal traditions. Using a top-down approach in the analysis of legal conflicts will therefore lead to the dire consequence of overlooking many actors and stakeholders involved in encounters between traditions.

In the context of present-day Indonesia, the situation of legal pluralism cannot be described as a static phenomenon where the competition between different legal traditions is understood as merely a domestic, single encounter between state law and non-state normative orderings. Especially in this new era where transnationalization overwhelms the nationalistic trend in the development of national law, the encroachment of international norms in the domestic sphere appears inescapable, with the result that the discussion of legal pluralism should not disregard the role and position of international law in the country's legal system. The discussion of competing legal traditions should therefore not only include those derived from domestic laws but also that of international law, as it is involved in the process of national law making.

Type
Chapter
Information
Pluralism, Transnationalism and Culture in Asian Law
A Book in Honour of M.B. Hooker
, pp. 90 - 115
Publisher: ISEAS–Yusof Ishak Institute
Print publication year: 2017

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×