PLURALITAS HUKUM DALAM PRAKTIK KEWARISAN MASYARAKAT BANJAR

Siti Muna Hayati, NIM.: 1430016002 (2022) PLURALITAS HUKUM DALAM PRAKTIK KEWARISAN MASYARAKAT BANJAR. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Banjar tribe is one of Indonesian existing tribes whose life is influenced by the plurality of laws, in particular when dealing with inheritance share between spouses and/or heirs. According to Banjar tribe tradition, inheritance share between husband and wife can be accommodated by a custom law with parpantangan concept, an Islamic law with syirkah concept, or a positive law with collaboration property concept within Islamic Law Compilation, while the share among heirs can be accommodated by a custom law with baislah tradition, Islamic law with faraid provision, or a positive law which is included in the Islamic Law Compilation. Having three laws in service, Banjar individuals surely tend to pick up one. Therefore, this study is trying to reveal Banjar tribe’s demeanor of the law to pick with regard to inheritance. The results will reveal the tribe’s cultural law track records on inheritance share that presumably changes over time. It is the shift that be the foothold of this study in overseeing the dynamics of Banjar culture. To do so, it focuses on three questions. Which law is mostly preferred by Banjar people in connection with inheritance share? What shifts that occurred during the inheritance law selection process? And what makes the shift occur? This qualitative study collected data through interview and documentation. The obtained data were then displayed descriptively, qualitatively, and interpretatively. To find solutions to the problems proposed, two theories were carried out, i.e. validity and culture of law theory and cultural determination one. The former was meant to see the tendency of law, among three existing ones, being chosen and the shifts. The later was used to see the factors leading to the tendency and the shifts afterwards. The results show that, out of three law systems in Indonesia, custom law and Islamic law are two favorite laws to Banjar individuals when dealing with inheritance share. Positive law in religious court trials tends to be avoided for litigation in court is considered shameful and dishonored. Basically, there is no shift of law preference discovered in this study. Yet, the reasons why they prefer one out of three available laws seems to slightly change, from kinship to economic reason. The change was simply due to the shift of elements of culture. The people of Banjar, nowadays, have been different in terms of their living, the economic system, community system, knowledge, and religiousness.

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