Restorative Justice: Positivization of Customary Law in Resolving Land Disputes Based on Local Wisdom of Papuan Citizens

Abstract

The positivization of customary law is the process of turning the source of customary law into various laws and regulations. The unwritten customary laws are obeyed by the people because they originate from social values and agreements to live together. Settlement of land disputes in communities where customary law is still strong, such as Papua, which is known for its local wisdom, is carried out through its own customary institution. To fulfill the element of justice, the dispute resolution approach is carried out by means of deliberations outside the court or non-litigation dispute resolution based on local wisdom. The overall manifestation of this settlement leads to restorative justice. The statutory approach, the conceptual approach, the socio-legal approach, the comparative approach, and the case approach are used in this research, which is a normative judicial and sociological judicial study. In conclusion, it is stated that the existence of Papuan customary law is based on its own legal ethnography, pluralism in social capabilities such as social structure and culture according to its character, types of customary leadership, and social interaction relations in different traditional economies. Recognition of indigenous Papuans is based on the Constitution of the Republic of Indonesia 1945, Article 18 B, Paragraph 2; UUPA Articles 3 and 5; and the Papua Special Autonomy Law in Chapter XI concerning Protection of the Rights of Indigenous Peoples. The Provincial Government of Papua is obliged to recognize, respect, protect, empower, and develop the rights of indigenous peoples based on the provisions of applicable laws and regulations.

Keywords: positivism, customary law, restorative justice

DOI: 10.7176/JLPG/127-01

Publication date: December 31^st 2022