Private Law and Public Power: Tangled Threads in Indonesian Land Regulation

Abstract

Adat terminologies and concepts have thus re-emerged significantly in the post-Suharto era. Yet, it is quite clear that these terms now operate in a dramatically different social and political setting from earlier colonial contexts. At the end of the New Order period, over 200 million Indonesians competed for land and natural resources in the shadow of a corrupt developmentalist State, not a van Vollenhovenesque environment of autonomous communities and localised adat. Moreover, after 1999 - when much of the "wild" re-claiming of land was justified on the basis of "adat" - the adat asserted by claimants and activists was certainly not the same as that described by van Vollenhoven in his Adatrechtbundels (45 volumes) and Pandechten van het Adatrecht (10 volumes). As a number of studies have noted, this new adat movement in reformasi Indonesia is not so much a detailed classificatory scheme for discerning organic private law rules, but a broad and unruly vehicle for regionalism, ethnicity, elitism and localised manoeuvering over access to land and natural resources (Acciaioli 2002; 2005; Davidson 2005; Klinken 2005; Li 2003; 2005; McCarthy 2004).

How are these changes to be analysed? How should lawyers deconstruct and adapt their own analytical frameworks so as to understand both the past and present, and accommodate the future of Indonesian law reform? What new concepts and languages are required to understand and improve the current wave of Indonesian legal reform? This chapter discusses these questions through an account of the three historical phases of land and natural resource regulation in Indonesia. Particular emphasis is placed on themes of continuity and change in the current phase. The primary argument is that while many issues and concepts remain the same, including fundamental uncertainty as to the relationship between public power and private law, dramatic changes in social and political conditions have created new pluralist structures that significantly challenge existing analytical frameworks.

Keywords: indonesia, land law, adat