Restorative Justice in Legal Pluralism: A Socio-Legal and Comparative Madhhab Study of Homicide Settlement in Arfak Indigenous Courts

Abstract

This study examines the intersection between Arfak customary justice in West Papua and Islamic criminal law in the settlement of homicide cases within Indonesia’s plural legal system. Contemporary criminal justice discourse increasingly highlights tensions between state-centered retributive justice and indigenous restorative mechanisms rooted in communal reconciliation. Although the Indonesian Constitution recognizes customary law communities, the formal criminal justice system continues to prioritize legal positivism, often overlooking the sociocultural and spiritual values embedded in indigenous legal traditions. Employing a socio-legal and comparative madhhab approach, this study investigates how the Arfak customary mechanism operates as living law through deliberation, compensation (bayar kepala), and reconciliation rituals designed to restore social harmony and communal balance. The findings reveal substantial similarities between the Arfak model and the Islamic doctrines of qiṣāṣ and diyāt, particularly in the Shāfiʿī and Ḥanbalī madhhabs, which emphasize forgiveness, compensation, and reconciliation as essential components of justice. The Arfak restorative framework also aligns with the objectives of maqāṣid al-sharīʿah, especially ḥifẓ al-nafs (protection of life) and ḥifẓ al-ummah (protection of community cohesion). Furthermore, comparative analysis demonstrates parallels with indigenous restorative justice systems in New Zealand, Canada, Australia, and Rwanda, where customary reconciliation has been institutionally integrated into criminal justice. This study argues that incorporating indigenous restorative principles into Indonesia’s criminal law reform represents a model of managed legal pluralism that preserves state authority while recognizing socially legitimate customary norms. It contributes to comparative Islamic criminal law by proposing a hybrid framework that integrates customary justice, comparative madhhab perspectives, restorative justice, and constitutional criminal law within a human rights-oriented legal system.

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