Minggu, 07 Juni 2009


Like common law, adat law is not based on codes or law books but on presedents and general rules of what so called adat communities feel as just and fair (equity). Another similiarity with common law is that it applies to everybody, from the highest to the lowest strata in society.

Is adat law in acoordande with the rule of law ? Not with fromal legality, we presume, at least not in the general sense of written law that is general, public, prospective and sufficiently clear. But if we regard it from a more substantive perspective, as a corpus of rules of which the adat society is suffiently conscious and which are to be considered as representative of the common view on what law should be, the answer could be more variegated and even positive.

In adat law we can make a rough distinction between law to be spoken by adat gremia of the community itself and the decisions of hudges from outside who are appointed by the central government. The first group, which stems from the community itself, has a good overview of the living law in that community. The second group can only rely on rules and opinions on fairnes and legal consciousness provided by advisors from the community itself and/or rules distilled and written down for the respective adat communities by e.g. Van Vollenhoven and his disciples. Are the latter still valid ? We don't think so because adat law is a living and always developing, instrument and Van Vollenhoven has been dead for a very long time.

As to elements of formal legality as indentified abovre, one could argue that the local influence of the deciding adat gremia may sometimes be too strong to speak of "political liberty", in the sense of sufficient limitations on the influence of the "sovereign".