HUKUM ADAT BERBASIS BUDAYA DAN AGAMA

Abstract

Customary law is the indigenous law of the Indonesian nation, growing from the womb of society itself and continuing to coexist with state law. Its binding force does not derive from the formal authority of the legislature, but from two mutually supporting foundations, namely culture as its vessel and religion as its soul. This study aims to describe the concept and position of customary law within the Indonesian legal system, to analyse the role of culture and religion as the basis of its formation and legitimacy, to map its forms and functions, and to identify the challenges it faces. The study employs a qualitative approach using library research combined with a normative juridical approach. Primary sources consist of Hindu sacred literature, particularly the Manawa Dharmasastra, Bhagavadgita, Rgveda, and Sarasamuscaya, together with relevant statutory regulations, while secondary sources comprise fifteen national journal articles published between 2021 and 2025. The data were analysed through content analysis consisting of reduction, display, and conclusion drawing. The findings reveal three points. First, customary law functions as living law recognised by the constitution and evidences the operation of legal pluralism in Indonesia. Second, culture provides the form, procedure, and language of customary law through the principle of desa mawacara and the tradition of deliberation, while religion supplies legitimacy and inner binding force through the belief that violating custom disturbs the sacred order. Third, its principal challenges include the pressures of modernisation and tourism, tension with human rights, weak legal certainty because customary norms remain unwritten, and the declining regeneration of customary leaders. The writing down of awig-awig, capacity building for customary officials, and harmonisation with national law are required so that customary law remains relevant.