THE CONCEPT OF LEGAL PLURALISM IN INDONESIA IN THE NEW SOCIAL MOVEMENT

As a multicultural country, legal pluralism in Indonesia should be placed in the perspective of a new social movement, which lies as the abstraction of collective subjects to strive for emancipation. Experience has shown that many policies and political laws concerning natural resources do not provide enough room for the representation of indigenous peoples. As the new social movement in the context of multiculturalism, fighting for socioeconomic and natural resource redistribution is as important as providing spaces to foster cultural struggle in terms of fighting discrimination against indigenous peoples. In Dutch legal pluralism theory is termed as theorie van het rechtspluralisme. Lawrence M. Friedman has proposed a definition of legal pluralism as the presence of different legal systems and cultures in a single political community. This research uses the social legal method with a conceptual and historical approach. According to John Griffiths, legal pluralism is the presence of more than one legal rule in a social circle. Further, the concept of legal pluralism does not promote a dichotomy between state law on the one side and folk law and religious law on the other side.


INTRODUCTION
The term of legal pluralism theory is native to English. In Dutch, it is called as theories van het rechtspluralisme. Lawrence M. Friedman has proposed a definition of legal pluralism as the presence of different legal systems and cultures in a single political community, while John Griffiths defined legal pluralism as the presence of more than one legal rule of a social circle (Griffiths, 1986), in this case not only state law and customary law but also habit and religious law (Simarmata, 2005).
The relations between state law and customary law can create tension which can culminate into conflicts in the absence of reconciliation (Safitri, 2011). In general, legal pluralism is a criticism addressed to what is called by John Griffiths as legal centralism ideology. The idea of legal pluralism as a concept started to receive attention in the 1970s, along with the bloom of legal anthropology.
Scholars have different views on legal pluralism. According to Keebet von Benda-Beckman, there are two types of legal pluralism. The first type is what is called by John Griffiths as "weak" pluralism, by Vanderlinen as "relative" pluralism, and by Woodman (2005) as "state law" pluralism. It refers to a legal construction in which the dominant law either implicitly or explicitly gives some room with other types of law such as customary law and religious law. The state law approves and admits the existence of other laws and includes them into its system. If the existence of legal pluralism depends on the recognition by state law, this is called weak legal pluralism (Griffiths, 1986). The second type is what is termed by John Griffiths as "strong" or "descriptive pluralism, by Woodman as "deep" pluralism. Strong legal pluralism is a condition where all diverse legal systems are autonomous, and their existence does not depend on the recognition of state law (Warma, 2009). The concept of legal pluralism does not promote dichotomies between state law on the one side and folk law and religious law on the other side. In later development legal pluralism emphasizes more on the interaction and coexistence of various legal systems that affect the running of legal norms, processes, and institutions in the society (Nurjaya, 2006). Indonesia with its diversity of ethnicity, indigenous peoples, and religion definitely requires legal pluralism.
In the context of Indonesia as a multicultural country, legal pluralism should be placed in the perspective of a new social movement, which lies as the abstraction of collective subjects to strive for emancipation. Experience has shown that many policies and political laws concerning natural resources do not provide enough room for the representation of indigenous peoples. As the new social movement towards the context of multiculturalism, fighting for socioeconomic and natural resource redistribution is as important as providing spaces to foster cultural struggle in terms of fighting discrimination against indigenous peoples (Suci Flambonita, 2010).
Indigenous peoples according to Ter Haar are orderly groups of people who live in a certain area and have their own power and wealth, both tangible and intangible objects, where all of their members live normally in their communities by the nature and none of them has the idea of dismissing the existing bond or leaving it in the sense of releasing himself from the bond permanently.

METHOD
The research method uses social legal with a conceptual and historical approach

Definition of Traditional Community
Traditional communities are groups of individuals who live from generation to generation in a certain geographical territory and are bind by cultural identities, strong relationships with their indigenous land, regions, and natural resources. Their value system determines their economic, political, and legal institutions. Indigenous peoples are groups of individuals who live from generation to generation in a certain geographical territory and are bind by cultural identities, strong relationships with their indigenous land, regions, and natural resources. Their value system determines their economic, political, and legal institutions arranged by customary institutions that have the authority to govern the members. Based on the definitions, in this research, the term indigenous peoples is more appropriate.

Definition of Legal Pluralism
Legal pluralism is a set of glasses that seeks to reconceptualize the relationship between law and the community. Legal pluralism also tries to identify the authenticity of legal phenomena operating in the global scope. Therefore, based on the posture of the related concept, legal pluralism is a quite bulky discussion area (Rahardjo, 1979) (Hooker, 1975). Communities with a definite social system provide guidelines on their members concerning how the relations between them should be made. Statements of the distribution of natural resources in the community can be conceptually found in rules that are basic in nature. Whenever the law decides a distribution, the measure will be determined by the relation between law and justice. According to Aristotle, justice is a political policy whose rules became the foundation of state rules, and the rules are the measurement of rights (Rahardjo, 1979).
In its development legal pluralism does not only dichotomize a legal system from the others. It is the oldest concept in the science of legal pluralism (Simarmata, 2005). The development is not limited to certain areas, but its discussion starts to go toward transnational law symptoms such as laws produced by multilateral and bilateral organizations as well as international monetary institutions and toward its interdependent relationship with national and local laws (Bakti, 2015).

Roscoe Pound's Sociological Jurisprudence that Introduces Law as a Tool of Social Engineering".
Roscoe Pound's sociological jurisprudence concept is relevant with the traits of legal progressiveness, i.e. dynamically seeks the essence of people's needs and ideals. Here the function of law is used to move the people toward a better and more advanced condition.

Hans Kelsen's Natural Legal Theory about Meta-Juridical.
According to this theory, the essence of law is the search for justice, so justice is placed as the main and the highest matter. This concept of justice attainment encourages the emergence of legal options on the state law that is perceived to bring justice by the community.
The relationship between justice and positive law has attracted a great deal of philosophers' attention from time to time. The figures of natural or classical law, such as Plato, Aristotle, and Thomas Aquinas, have laid the foundation of justice. Plato described a model of just state, in which each group has its own natural space thus creating justice. He considered fair legal rules to meet the objective of law by remaining compliant with natural compulsion (nomos). For him, justice is the reflection of harmony between communities on the one side and between individuals on the other side (Zainuddin, 2006).
Until recently there are many concepts and attributes to legal pluralism. Experts in law propose concepts of legal pluralism that, despite their diversity, refer to more than one system that grows together in a social scope.
The discussion about the law can be viewed from various dimensions, either in the context made by the state or in the context of social, culture, economy, and politics. In certain limitations, the law is related to state law, particularly law in the book. Anthropologists perceive law as a wide normative reference that continues to love and dynamically develop (living law). It covers not only state law but also a system nor outside the state. It is also enhanced by all processes and actors in it. Law contains not only normative conceptions, i.e. those allowed and forbidden, but also cognitive concepts (Benda Beckmann, 2009). The encounter or the interaction between a definition of law or even a legal system with another is a separate and interesting discussion in legal studies; it is called as legal pluralism studies.
The term of legal pluralism has been recognized as a key concept in post-modern legal studies. It is very helpful in providing explanations about the factual existence of legal order created by the state.
Traditional communities are groups of individuals who live from generation to generation of a certain geographical territory and are bind by cultural identities, strong relationships with their indigenous land, regions, and natural resources. Their value system determines their economic, political, and legal institutions. Indigenous peoples are groups of individuals that live from generation to generation in a certain geographical territory and are bind by cultural identities, strong relationships with their indigenous land, regions, and natural resources. Their value system determines their economic, political, and legal institutions arranged by customary institutions that have the authority to govern the members. Based on the definitions, in this research, the term indigenous peoples is more appropriate.
Legal pluralism is a set of glasses that seeks to reconceptualize the relationship between law and the community. Legal pluralism also tries to identify the authenticity of legal phenomena operating in the global scope. Therefore, based on the posture of the related concept, legal pluralism is a quite bulky discussion area (Rahardjo, 1979). Communities with (a) definite social system provide guidelines on their members concerning with how the relations among them should be made. Statements from the distribution of natural resources in the community can be conceptually found in rules that are basic to nature. Whenever the law decides a distribution, the measure will be determined by the relation between law and justice. According to Aristotle, justice is a political policy whose rules became the foundation of state rules, and the rules are the measurement of rights.
According to Griffiths, there are two types of legal pluralism: strong and weak legal pluralism. Strong legal pluralism is the condition where each of the different legal systems is autonomous, and its existence does not depend on state law. If the existence of legal pluralism depends on state law, the condition is called weal legal pluralism (Griffiths, 1986). In other words, legal pluralism is strong when there is a situation where the various legal systems live equally without domination by either of them. Individuals or groups living in certain social spaces or territories are free to choose one of the laws and free to combine the various systems in living their daily lives and resolving disputes. The weak legal pluralism occurs when one of the legal systems is superior to others. Here individuals or groups to use one of the systems due to pressure.
The various concepts were developed by Simarmata. Pluralism also finds relations between the various legal system; they might be in forms of diffusion, competition, or cooperation. For example, state law does not always deny customary law. Instead, it admits and accommodates the existence of customary law, and vice versa. Legal pluralism does not only develop in terms of territories or study object but also develop in another way, i.e. refining and sharpening itself. Several similar thoughts are (1) strong legal pluralism and weak legal pluralism, (2) mapping of law, and (3) critical legal pluralism (Simarmata, 2005).
In regard to legal pluralism, there are many applicable legal systems. The empirical reality concerning social spaces is that there are many legal systems in Indonesia. Furthermore, the development of national law (modern law) and globalization tends to be centralistic, uniform, and responsive, which in turn marginalizes or even corrupts the existence of customary law. The resistance of the legal community toward the global society is facing national legal reality and globalization is inevitable. The legal pluralism paradigm emerges to unravel legal symptoms and phenomena in the same social space. While the prevalence and endurance of nonstate justice mechanisms could be seen as an indictment of the need for state justice to underpin the rule of law, non-state justice mechanisms often have significant negative externalities. Nonstate legal orders frequently reflect cultural or religious norms unconcerned about basic human rights. Women and other vulnerable groups are particularly at risk when nonstate legal systems embrace overtly patriarchal ideals. These systems can also reflect a significant bias toward powerful individuals and families, and the legal processes often lack core protections, such as procedural and substantive due process norms. As Waldorf highlights, nonstate "judicial" elites are neither independent nor impartial, and their discretionary rulings serve community harmony, not individualized justice" (WALDORF, 2006). Furthermore, the relationship between state and non-state justice is often unclear, and cases may be resolved in different ways, encouraging forum shopping by parties, particularly those with more economic or political clout. The state system's predominance of itself does not guarantee a just outcome at a systemic level, as it could be a means for more effective despotism (KRYGIER, 2011). Although legal pluralists are unable to reach an agreement about the "legal" in legal pluralism, they have shown that law can exist and operate without the state is a necessary condition (Woodman 1998;Beckmann 2002), and non-state laws can coexist in the same social field as state law in every society The theory of legal pluralism is interpreted as the connecting line between the various legal systems in certain communities, including legal culture. This is what was captured by Werner Menski, a professor in law at the University of London during his research on the legal comparison between Asian and African countries. He concluded that law enforcements in Asian and African countries are different from those in Western countries, particularly Europeans. European law enforcement is not significantly affected by non-legal elements such as morality, ethics, and religion. European nations are very comfortable with state law (Kherid, 2019).
The definition of pluralism is in the domain of socio-legal studies. Menski describes pluralism as a triangle consisting of natural law, state positivism, and socio-legal approach. The three elements shape legal pluralism, introduced by Menski in 2006. This legal pluralism triangle concept supports the legal system theory of Lawrence M. Friedman, i.e. legal structure, legal substance, and legal culture. In this legal culture does legal pluralism work. The work of legal pluralism in Indonesia's legal culture is influenced by local law values. Law can work effectively and be accepted by the community when the law does not confront the local law. In the context of Indonesia, the core of legal culture is Pancasila, which becomes the benchmark of legal structure's operation (Saptomo, 2012).
Leopold Pospisil in his book The Anthropological Law (1971) proposed that the main source of law is not the state (as believed by positivism) but from human behavior and from laws that can accommodate people's pluralism. Similarly, Frederick Karl von Savigny perceives those good laws come from people's customs, habits, and desire materialized through representative institution so that the produced law can fulfill people's wants to meet their social lives (Saptomo, 2012).
According to the teaching of progressive law, revisions of rules are necessary if it is proven that the existing rules do not support law enforcement efforts (Sasmito, 2011). Progressiveness in law is sensitivity to changes in society. The challenge to lawmaking is the process of early law enforcement. Law enforcement of lawmaking encompasses debates on the ideas of lawmakers departing from various perspectives such as politics, religion, culture, sociology, anthropology, up to customs. Laws enforcement is directed to compile a plural and holistic law oriented to the achievement of the nation's goals. Therefore, lawmakers are required to have a long-term vision of political law (ius constituendum). Constitution as state law or staatsfundamentalnorm puts pluralism as the foundation or reference in making law. Basic norms are the desired obligations derived from the objectification of the founding fathers' wishes. Therefore, because basic norms are the result of the objectification of mutual will, they do not change as the inner guidance (Samekto, 2015).
Along with its development, legal pluralism does not merely dichotomize a legal system with others. According to Simarmata, it is the oldest concept in the idea of legal pluralism (Simarmata, 2005). In this context, legal pluralism is the concept that shows a condition in which more than one legal system coexists. They are concurrently applicable and interact with regulating various human activities and relationships in one place (Hooker, 1975). Theoretically, the understanding of legal pluralism by Keebet von Benda is used to distinguish legal pluralism from legal pluralities. Various legal systems in a territory do not merely coexist without making any interaction. If more than one legal system coexists in the same social space but does not make any interaction, it is called a plurality of law. Nevertheless, if interactions occur between the systems, it is called as legal pluralism.
In the developing world, an estimated 80 to 90 percent of disputes are handled outside of the state justice system (ALBRECHT, 2010). 1). The role of legal pluralism is particularly vital in conflict and post-conflict settings, as they tend to have weak state institutions and contested governing authorities (FEARON, 2004.) In states with lower levels of capacity, legitimacy, or both, seeking support from non-state actors can serve as a conflict avoidance tactic or even a broader governance strategy that attempts to secure buy-in from powerful groups that may be skeptical of the state. 2). While the prevalence and endurance of nonstate justice mechanisms could be seen as an indictment of the need for state justice to underpin the rule of law, nonstate justice mechanisms often have significant negative externalities. Nonstate legal orders frequently reflect cultural or religious norms unconcerned with basic human rights. Other vulnerable groups are particularly at risk when nonstate legal systems embrace overtly patriarchal ideals. These systems can also reflect a significant bias toward powerful individuals and families, and the legal processes often lack core protections, such as procedural and substantive due process norms. As Waldorf highlights, nonstate "judicial" elites are neither independent nor impartial, and their discretionary rulings serve community harmony, not individualized justice" (WALDORF, 2006).
Further, the thought about the pluralism concept also takes conditions into account. Legal pluralism according to Sumardjono is weak legal pluralism or state-law pluralism (Maria SW Sumardjono 2017, 4). The discourse on the interaction between national law and customary law concerning land does not have to be placed in a competitive condition but in a complementing condition. Characteristically, national or formal law tends to be static and stable in order to maintain social norms and public order, thus it tends to be less dynamic. Meanwhile, customary law values living in the community tend to be dynamic and local because it lives in the social environment as its area of operation. Therefore, this complementary condition can also be understood considering the weakness of the two legal systems; while national law is superior to legal certainty, customary law provides a higher sense of justice for the people.
Harmonization attempts to ensure that the outputs of the non-state justice system are consistent with the state system's core values. At the same time, the non-state justice system is incorporated and legitimatized to some extent. To support harmonization, states and international donors often fund activities to encourage nonstate justice practitioners to act in a manner consistent with state law in general. However, there is often at least tacit recognition that nonstate actors retain a significant degree of autonomy and independent legitimacy. Thus, there is a willingness to tolerate some normative differences in adjudication standards. As opposed to trying to get nonstate venues to act like state courts of the first instance, there is a focus on changing the treatment of certain legal matters, for example, nonstate actors' treatment of women (CHOPRA, 2012). State judicial actors also frequently discriminate against women, but usually, this is done in violation of state law rather than as a matter of accepted practice (CAMPBELL, 2016), In general, the greater the state's ability to offer a compelling and legitimate forum for dispute resolution worth emulating, the greater the prospects of successfully implementing a harmonization approach. Successful harmonization occurs most frequently in competitive-and especially cooperative-legal pluralism environments. Nevertheless, as long as nonstate actors retain a significant degree of autonomy, meaningful divergence with state policy remains possible. Thus, the structure and implications of legal pluralism must be considered when creating and implementing policy. The "legal" in legal pluralism and the "law" in rule of law are evidence that the two are essentially linked. At the root of their theoretical formulations and practical applications, legal pluralism and rule of law share the idea of law and legality as a common theme. As a result, legal pluralism and rule of law are linked to the instrumentality of law and its institutional frameworks. Before exploring the relationship between legal pluralism and rule of law, it is necessary to consider the meaning and contents of rule of law to have a clear sense of the concept as used in this article. (John, 2005) A successful, sustainable strategy must be rooted in a deep understanding of how a country's culture, politics, and history can help underpin a legitimate legal order.
The first definition is formal and goes like this: "rule of law means that government officials and citizens are bound by and abide by the law" (Tamanaha, 2011). The second definition has a substantive content and sees rule of law as a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency (United Nations 2004, 4)  Laws to outlaw discriminatory practices in nonstate adjudication and training to end discriminatory practices.
The legal pluralism paradigm emerges to unravel legal symptoms and phenomena in the same social space. Therefore, to unravel this concept we need to let legal culture lives and grow in pluralistic Indonesia because essentially the main source of law are not the state (as believed by positivism) but human behavior and laws that can accommodate people's pluralism, i.e. customary law which grows and develops well without the use of state law. Understanding legal pluralism is important to any legal or policy intervention, including but by no means limited to state-building. Without understanding legal pluralism's dynamics in a given context, interventions are likely to be ineffective. Even initiatives that enjoy shortterm success are unlikely to be sustainable, as they reflect good fortune rather than an informed approach. Harmonization attempts to ensure that the outputs of the non-state justice system are consistent with the state system's core values. At the same time, the non-state justice system is incorporated and legitimatized to some extent. To support harmonization, states and international donors often fund activities to encourage nonstate justice practitioners to act in a manner consistent with state law in general. However, there is often at least tacit recognition that nonstate actors retain a significant degree of autonomy and independent legitimacy. The first definition is formal and goes like this: "rule of law means that government officials and citizens are bound by and abide by the law" The second definition has a substantive content and sees rule of law as a principle of governance in which all persons, institutions and entities, public and private, including the State itself.