The Faculty of Law, University of Indonesia, in collaboration with the Association of Indonesian Socio-Legal Studies (ASSLESI) and The Indonesian Journal of Socio-Legal Studies held a webinar “A Tribute to Prof. Keebet von Benda-Beckmann: Diversity of Views on Legal Pluralism in Indonesia”. Prof. Joeni Arianto Kurniawan, S.H., M.A., Ph.D., an expert on law and multiculturalism at the Faculty of Law, 51¶¯Âþ (FH UNAIR) was one of the speakers at the online event on Saturday (29/10/2022).
Joeni presented material on “Legal Pluralism and Protection of Diversity: Minangkabau Case Studies (Tribute to the Late Frans & Keebet von Benda-Beckmann)”. He explained the concept of the origin of legal pluralism, which developed into a socio-legal study that is more inclined to the domain of legal anthropology.
“This study tends to be descriptive-explanative by using ethnographic methods to reveal and explain the normative order outside of positive law,” said Joeni.
Joeni explained that legal pluralism in Indonesia could not be separated from identity politics. The three-dimensional plurality of the Indonesian legal system consists of national law, customary law, and Islamic law, which influence each other, complement each other, compete with each other, and co-opt each other. He chose to use the Minangkabau case study, which is in line with the tridimensional-based identity relationships.
“For example, in Minangkabau, there were cases of religious freedom and diversity in West Sumatra. According to the Setara Institute research in 2020, West Sumatra is included in the top 10 provinces with the most violations of religious freedom in Indonesia. Most of the violations were committed by state actors, one of which was through the Regional Regulations instrument. For example, the Padang City Regional Regulation Number 5 of 2011 concerning the Implementation of Education, where Article 14 requires school students to wear the hijab at school,” said Joeni.
The justifications to support the implementation of the religiously biased regulations are encouraging the assimilation of minorities into the majority group and the saying “where the earth is stepped on, there the sky is upheld”. In fact, said Joeni, what happened in Minangkabau is one element of the ‘kites’ that dominates and falls as an institutionalization of discrimination and violations of religious freedom.
To overcome this problem, Joeni introduced the so-called legal postulates concept from Masaji Chiba, which developed into Menski’s Kite Model of Legal Pluralism. Each type of law is necessarily an entity of legal pluralism because it is formed and influenced by religion or morals, customs or customs, state or positive law, and world or international law, including human rights.
“Like a kite, the ideal legal institutionalization is a law that inclusively reflects the pluralism of the four dimensions above while maintaining the balance of the four dimensions. There cannot be a heavier dimension or it can be said that there should be no dimension that dominates the other dimensions. If a dimension dominates the other dimensions, then the ‘kite of the legal system’ will collapse. The task of the jurist and the lawmakers is to maintain the inclusiveness and balance of this ‘law kite’ in every existing legal system,” concluded Joeni.
