Harmonization of Customary Law and Positive Law:A Study of Forced Marriages and Semarga Marriages in Indonesia

Abstract

The existence of customary law and positive law in Indonesia often causes conflicts in its implementation, especially in terms of marriage. One concrete example is the practice of forced marriage and the prohibition of inbreeding which is still maintained by some indigenous peoples in Indonesia. These practices contradict positive law regulations that prioritize freedom of choice and equality of rights in marriage. This study aims to elaborate on the conflict between customary law and positive law in the context of these two practices and offer a model of legal harmonization that allows both to run synergistically-simultaneously. This research is library research with a case approach. Data were obtained through document studies and analyzed qualitatively. The results show that the practice of forced marriage, at least, contradicts the principle of freedom in the Marriage Law and human rights conventions, while the prohibition of in-law marriage often hampers the right of individuals to marry. Legal harmonization is needed that considers cultural values without ignoring the principles of positive law. This study recommends a form of legal harmonization in the form of internalizing the ideology of Pancasila as a basic guideline in the formation of rules/norms enforced during Indonesian society.