CHAPTER 1 THE BEGINNING OF LAW

CHAPTER 1

THE BEGINNING OF LAW

  1. As far as we know, the law began with the family. The father was the head of the family, and the orders he gave, the rules of conduct made by him, were the law.
  2. As families expanded and the members went out on their own, the family group became known as a clan, subject to the rule of the man who was selected to head it. Eventually , clans in the same area joined forces and became members of a tribe. They chose a chief to head this larger group.
  • The chief of the tribe made rules or laws to govern the dealings of one clan with another, but the head of the clan still made the laws for the family group. If a tribal law was broken, the chief decided the guilt or innocence of the person accused and fixed the punishment . The head of a clan judged and determined the punishment for those who broke the rules within his family group.

  1. Those clan and tribal laws were not written down for countless centuries, we don’t know how many, but they were handed down by word of mouth from one generation to another. Some of them are actually still in force For example, a man who was a member of one clan could not marry a woman from the same clan; he had to choose his bride from another clan of the same tribe.
  2. In ancient times, there were few property rights (hak). It was considered (dianggap) that God owned all the land and that the members of any tribe who settled on the land could use it.  Farming, hunting (berburu) and fishing were the main ways of making a living then, and the tribes moved around a great  After a tract of land had been worked for a few generation the tribe went on to look for (mencari)richer soil and settled some where else. Wars of subjugation were avoided (dihindari) whenever possible.
  3. When a tribe moved, the laws of the old land became the laws of the new land. These laws were changed or new laws were made only as the wanderers found new customs in new areas or as the traits of the people changed. Still, the laws were handed down by word of mouth and not written down because people had not yet invented writing, even on stone tablets.
  • In Indonesia, laws of the land date back to the Dutch colonial rule. It was the Dutch who introduced European laws to the country, then known as the Netherlands East Indies. As early as 1824, there was a concept of separate law made by the Dutch government. The population was then divided into three groups as far as law were concerned, namely : Europeans, natives and foreign orientals.netherlanders living in the Indies were subject to the laws for Europeans: the indigenous inhabitants were subject to the laws for natives, whereas (sedangkan) the foreign Asians were not subject to either of the above.

They were subject to a separate ordinance.

  • During the Dutch colonial rule, the laws for the natives were primarily the adat laws,Snouck Hurgronye, the Dutch Indonesian-Arabic scholar and statesman of the nineteenth century, first pointed out (menjelaskan) that, since customary practices (kebiasaan) among most of the peoples of the archipelago were dominated (dipengaruhi) by the Arabic word adat, or custom, adat also had legal connotations, so, adat became ‘ adatrecht’ in Dutch or ‘ adat law’ in English.
  1. Many historians (ahli sejarah) stated that the traits or customs of the people were the basis of adat law. Though deeply rooted in traditional culture, adat is an embodiment

of  the traditional values (nilai) and morals as well as an expression of universal values. Today adat law still regulates (mengatur) such aspects of life as marriage (perkawinan), birth (kelahiran) , death(kematian), inheritance (warisan), and divorce (perceraian)

  1. When speaking of the origin of laws in Indonesia, one must go back to the period when the Indonesian archipelago was under Dutch Colonial rule. The Dutch brought with them the European system of government and others aspects of life, and European law was one of them. As has been previously mentioned (disebutkan) there were separate laws in the country under the colonial government in 1826. Different groups of people were subject to different laws. However, by 1848, there was a start towards codification of the law for the population along European lines by enacting (pengesahan) a Police and Procedure Code for Natives and Foreign Orientals of Java and Madura in 1848, and Criminal Code for Natives in 1872. Thus (maka), even beginning from the Dutch Colonial rule, the nature of the law to be applied (yang digunakan) to each group of the different groups of people living in the country was one of the most difficult policy problems in the Netherlands East Indies.
  2. Another factor which is of great significance in the study of the origin of law in Indonesia is the existence of the different ethnic groups (suku) in the country. The various ethnic groups have different cultural background, values and customs with regard to many aspects of communal life. For instance (umpamanya), concerning marriage, the Minangkabau follow the matrilineal system, while (sedangkan) the Batak adopt (memakai) the patrilineal system. In the Batak clan system members of the clan should assist one another in marriage ceremonies, and a certain type of hierarchy in the maariage organization, such as who should be the speaker, is decided by custom. The bilateral system is common to most of the regions of Indonesia, including (termasuk) Java and Madura, East Sumatera, Riau, Aceh, etc.

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