Perkawinan Kontrak Dalam Perspektif Living Law Eugen Ehrlich: Antara Norma Sosial Dan Kepastian Hukum

Abstract

The phenomenon of contractual marriage persists in several regions in Indonesia despite the absence of legal recognition under positive law. The tension between formal prohibition and social acceptance makes this practice highly relevant to socio-legal inquiry. This article employs Eugen Ehrlich’s Living Law Theory to explore how social norms and communal practices operate as “law in action,” shaping legal behavior even when contradicting state law. The study examines statutory regulations under the Marriage Law, the Compilation of Islamic Law, and various decisions of the religious courts, and compares them with observable social practices in communities known for the prevalence of contractual marriages. The analysis demonstrates that the endurance of contractual marriage is influenced by economic motives, cultural legitimacy, and the practical needs of local communities in mediating interactions between foreign visitors and local women. Using the living law framework, the article argues that strong social norms often play a more decisive role in governing behavior than written legal norms, resulting in a persistent gap between law in books and law in action. This study recommends socially responsive legal reform in the field of family law particularly concerning the protection of women and children and highlights the need to harmonize legal certainty with complex social realities.