Supremacy of Ethic: National Law, Customary Law and Islamic Law Collided

摘要

Indonesia is a Nation that embraces many different ethnic groups. Each of them has its own customary law, which has been implemented for centuries. Even though Indonesia is regulated by its rules of law, for the private matters, some customary laws and Islamic law are still applicable. Problems are arisen when rules regarding certain things in customary or Islamic laws and national law are conflicting. The solution is usually a traditional approach that put supremacy of national law. Many indigenous people who have bound by their customary law or Islamic law for decades, cannot easily accept enforcement of the national law. Therefore, positivistic approach per se will potentially create more problems. This paper will examine how ethics or morality may play important roles in determining what is the best solution that can maintain the balance of principle of legal certainty and principle of fairness.