Abstract
Nagari law is a normative order that thrives within Minangkabau society, centered on the nagari as a unified customary law community. This article analyzes the position of Nagari law within the national legal system through a normative juridical approach and a framework of legal pluralism.
The discussion demonstrates that Nagari law is philosophically grounded in the principle of “adat basandi syarak, syarak basandi Kitabullah” (custom is based on Sharia, Sharia is based on the Quran),constitutionally supported by Article 18B paragraph (2) of the 1945 Constitution, and operationally supported by regional regulations concerning nagari and communal land (tanah ulayat).
Key challenges include the overlapping authority between nagari and administrative villages, conflicts between communal land concepts and national agrarian law, and the weakening authority of customary institutions.
This article recommends strengthening the recognition of Nagari law through regulatory synchronization, the administrative designation of customary law communities, and the integration of customary dispute resolution mechanisms into the judicial system.
Introduction
Indonesia is recognized as a nation with an extraordinary diversity of legal systems. Alongside state law derived from legislation, there exists customary law that grows from social practices and the communal values of various ethnic groups.
One of the most structured customary orders is the Nagari law in Minangkabau, West Sumatra. A nagari is not merely an administrative territory, but a social, cultural, and legal entity that possesses its own territory, population, governance institutions, and assets managed according to custom.
Since the implementation of regional autonomy, West Sumatra has adopted a policy of “returning to the nagari” which replaced the village structure established by Law Number 5 of 1979. This policy revived the nagari as the lowest level of government and a base for preserving custom.
However, this recognition has not automatically resolved various issues. Overlaps with the village government system, communal land disputes with investors and the state, and shifting values among the younger generation raise fundamental questions: to what extent is Nagari law truly recognized and enforceable within the national legal system?
For master of law students, this question is significant as it relates closely to the theory of legal sources, the relationship between central and regional governments, and the protection of indigenous peoples' rights.
Theoretical Framework: Legal Pluralism and Living Law
This study rests on two theoretical foundations.
First, legal pluralism, which is a state where two or more legal systems apply in the same social field (Griffiths, 1986).
Griffiths distinguishes between weak legal pluralism, where the state recognizes and regulates the existence of other legal systems, and strong legal pluralism, where various normative orders operate side-by-side without depending on state recognition.
Nagari law exists at the intersection of both. On one hand, it applies effectively in community life. On the other, its existence also gains legitimacy through the constitution and regional regulations.
Second, the concept ofliving lawby Eugen Ehrlich, which asserts that the center of gravity for legal development lies within the society itself, not merely in legislation or judicial decisions (Ehrlich, 1936).
This idea aligns with Soepomo's view that customary law is unwritten law growing from the legal consciousness of the people. Meanwhile, Ter Haar identifies the decisions of customary functionaries as a source of customary law formation (Ter Haar, 1939).
The recognition of living law in society through Article 2 of Law Number 1 of 2023 concerning the Criminal Code further strengthens the relevance of this framework in contemporary legal practice.
Characteristics and Structure of Nagari Law
Nagari law originates from Minangkabau custom, which Navis (1984) formulated through the expression “alam takambang jadi guru” (nature is the teacher).In this view, nature is positioned as a source of learning for the formation of social norms.
Traditionally, Minangkabau custom is divided into four levels:
Adat nan sabana adat(the true custom), which represents fundamental values that do not change.
Adat nan diadatkan(the customary custom), which refers to core rules born from the deliberations of ancestors.
Adat nan teradat(the customary practice), which refers to habits adapted to specific places and times.
Adat istiadat(customary traditions), which are social habits that are more flexible and evolve with societal dynamics.
This division shows that Nagari law has a stable core of values while maintaining room for adaptation, allowing it to survive changing times.
Philosophically, Nagari law is inspired by the philosophy of “adat basandi syarak, syarak basandi Kitabullah” which was confirmed through the Sumpah Sati Bukik Marapalam oath.
This philosophy places Islamic Sharia as the foundation of custom, so that customary and religious norms are seen as mutually reinforcing. Its influence is visible in inheritance law, marriage, and dispute resolution.
Nevertheless, Minangkabau has a unique matrilineal kinship system.
High ancestral property (harta pusako tinggi) is inherited through the maternal line and managed by the mamak (maternal uncle) as the head of the lineage for the benefit of the clan. Meanwhile, low ancestral property or earned property is divided according to faraid (Islamic inheritance) provisions (Syarifuddin, 1984).
The combination of both is a clear example of how different legal systems can interact within one community.
Institutionally, nagari leadership is carried out through the concept of Tungku Tigo Sajarangan(the three-legged stove), consisting of ninik mamak (customary leaders), alim ulama (religious scholars), and cadiak pandai (intellectuals). The three play complementary roles in the deliberation and decision-making process.
The formal institution that accommodates these roles is the Kerapatan Adat Nagari (KAN), which has the authority to safeguard custom, manage nagari assets, and resolve disputes regarding titles (sako) and property (pusako).
Dispute resolution is conducted in stages, from the clan level to the tribe, and finally the nagari, based on the principle of “bajanjang naiak, batanggo turun”(climbing the ladder, descending the stairs).
Historically, the nagari was also influenced by two systems of governance (kelarasan): Koto Piliang, which tends to be hierarchical, and Bodi Caniago, which is more egalitarian. These differences mean that the practice of Nagari law is not entirely uniform across all Minangkabau regions (von Benda-Beckmann & von Benda-Beckmann, 2013).
Juridical Foundation for the Recognition of Nagari Law
The constitutional basis for the recognition of Nagari law is found in Article 18B paragraph (2) of the 1945 Constitution, which states that the state recognizes and respects customary law community units and their traditional rights as long as they still exist and are in accordance with societal development and the principles of the Unitary State of the Republic of Indonesia.
Article 28I paragraph (3) of the 1945 Constitution also affirms that cultural identity and the rights of traditional communities are respected in line with the times.
However, the conditional formulation of recognition in these provisions is often criticized because it opens room for interpretations that make the recognition of customary law communities dependent on state assessment.
At the legislative level, Law Number 6 of 2014 concerning Villages recognizes the existence of customary villages and allows for the adjustment of villages into customary villages.
In West Sumatra, the regulation of nagari is set forth in West Sumatra Provincial Regulation Number 7 of 2018 concerning Nagari, which affirms the nagari as a customary law community unit with authority based on original rights.
Meanwhile, West Sumatra Provincial Regulation Number 6 of 2008 concerning Communal Land and Its Utilization regulates the management of communal land belonging to the nagari, tribe, clan, and royalty.
At the national level, Constitutional Court Decision Number 35/PUU-X/2012 affirms that customary forests are no longer part of state forests. This decision strengthens the position of indigenous peoples in fighting for their rights over their customary territories.
Although these various regulations have provided a legal basis, the recognition of Nagari law in many aspects remains declarative.
Article 2 paragraph (2) of the National Criminal Code, for example, delegates further regulation regarding living law in society to regional regulations.
This provision requires local governments to conduct an inventory and formulate customary norms clearly so that their application does not cause legal uncertainty.
Problems in Enforcing Nagari Law
In practice, the enforcement of Nagari law still faces a number of fundamental issues.
First, the overlap between nagari and administrative villages.
The Village Law regulates government structures with terms and mechanisms based on administrative villages. Meanwhile, the nagari has customary elements that are not fully accommodated in that governance pattern.
As a result, the nagari head (wali nagari) is often caught between the demands of administrative accountability and the need to maintain customary legitimacy from the ninik mamak.
Second, the tension between the concept of communal land and national agrarian law.
Article 3 of the Basic Agrarian Law recognizes the existence of customary rights as long as they exist in reality. However, the implementation of communal land registration still faces various obstacles.
Disputes often arise when communal land is utilized for palm oil plantations, mining, or infrastructure development without the consent of the entitled clan.
The government has opened land administration channels for communal land through regulations from the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency (ATR/BPN).
However, its implementation still requires proof of the existence of the customary law community, which in practice is not always easy for a nagari to provide.
Third, the weakening authority of customary institutions.
Urbanization, the culture of migration (merantau), the individualization of ancestral property, and the dominance of state law in dispute resolution affect the authority of customary institutions.
This condition causes the decisions of the Kerapatan Adat Nagari (KAN) to not always be obeyed by the disputing parties.
KAN decisions can indeed be used as consideration in the judicial process, but they do not have their own executorial power.
In practice, parties dissatisfied with a customary decision can bring the same case to the district court. This situation has the potential to cause a repetition of the dispute resolution process and legal uncertainty, including the phenomenon of forum shopping.Fourth, the shift in values among the younger generation.
The weakening of the transmission of language and customary knowledge through formal education reduces the younger generation's understanding of nagari norms.
Yet, as emphasized in Ehrlich's thinking, the effectiveness of customary law depends heavily on the legal consciousness of the community members who practice it.
Directions for Repositioning and Recommendations
The repositioning of Nagari law within the national legal system can be carried out through a number of strategic steps.
First, the harmonization of regulations vertically and horizontally.
This step is necessary so that provisions regarding nagari in regional regulations are in line with the Village Law, national agrarian law, and the National Criminal Code. Second, the acceleration of the designation of nagari as customary law communities.
Designation through regional regulations and head of region decrees can strengthen administrative certainty, particularly in the protection of rights over communal land. Third, the strengthening of the Kerapatan Adat Nagari as a dispute resolution forum.
KAN needs to be strengthened as a forum for dispute resolution at the initial stage, with a mechanism to confirm the results of agreements through the court so that they have executive power. This approach is in line with the principles of restorative justice and has the potential to help reduce the case burden in the judicial system.
Fourth, limited documentation and codification of nagari customary norms.
This effort is especially needed for provisions regarding ancestral property, marriage, and customary sanctions, without eliminating the dynamic character of custom that is able to adapt to societal developments. Fifth, the integration of Minangkabau customary local content in education.
This step is important to ensure that the transmission of values, norms, and customary knowledge takes place from an early age. Through these various efforts, Nagari law is expected to not only gain recognition as a cultural heritage but also function as a living, relevant, and effective source of law in community life.
Conclusion
Nagari law is a tangible manifestation of legal pluralism in Indonesia. Its existence gains recognition constitutionally and through various legislative regulations.
However, the effectiveness of its application still faces a number of obstacles, ranging from regulatory disharmony and agrarian conflicts to the weakening of customary institutions.
The recognition that has tended to be conditional needs to be directed toward recognition accompanied by clear implementation instruments that provide legal certainty.
For master of law students, the nagari offers a rich space for academic study to understand the relationship between state law, customary law, and religious law.
Furthermore, the study of Nagari law also serves as an important foundation in formulating a model of legal pluralism capable of respecting local identity without sacrificing national legal certainty.
The existence and repositioning of Nagari law within the national legal system remains a critical subject for legal scholars and policymakers alike.
Comments 0
Write a Comment Share your response