Skip to main content

The Politics of Courts and Legal Culture

Law and Society Association Panel 2018

Panel Title: The Politics of Courts and Legal Culture: Indonesia’s Judiciary and the Legacy of Dan S Lev

This panel presents a series of related papers around the broader theme of legal culture and the role and function of courts in Indonesia. Twenty years on from Indonesia’s democratic transition, and there has not yet been a thoroughly analysis of how and why Indonesia’s courts have changed, and what this says about the contested concept of legal culture today. A true pioneer in this area is the late Professor Dan S Lev. His work was grounded in a socio-legal approach to the study of law, and his work spans an impressive range of themes related to courts, judges, lawyers and politics in Indonesia from the 1960s to 2000s. The three papers in this panel seek to reinvigorate and affirm the importance of Lev’s work for the study of courts in Indonesia today. Offering new and empirically informed perspectives on important developments in the courts, this panel seeks to bring the study of Indonesian courts into the broader view of literature and debates on the politics of courts.

Chair: Professor Frank Munger, New York Law School

Paper 1: Judges, Courts and Legal Culture in Indonesia: The Legacy of Dan S Lev

Abstract: Indonesia’s extensive court system supports the world’s third largest democracy and a growing economy. The court system in Indonesia has changed and expanded rapidly since 1998, with the introduction of a wide range of specialized courts. My paper reflects broadly on this phenomenon through the seminal and groundbreaking work of the late Professor Dan Lev. Lev’s work offers important foundational theories in the study of lawyers and the legal profession in Indonesia; legal aid and the role of activists against the state; the role of judges and the courts; and the importance of understanding the politics of law more broadly. While I suggest that these themes offer an important baseline for the study of courts in Indonesia, the judicial landscape has clearly changed dramatically with the creation of a specialized Constitutional Court, Tax Court, Human Rights Court, Fisheries Court, Anti-corruption Court, Commercial Court and Industrial Relations Court. These specialized courts often seek to disrupt existing pathologies with the general court system in an attempt to circumvent the cycles of corruption, such as by appointing a majority of ad hoc judges (from outside the career judiciary) to the bench. They also seek to promote and maintain specialized expertise within the judiciary. question the extent to which Lev’s work can help us understand this phenomenon. I argue that his methodological and theoretical approach to Indonesian law remain of relevance to the study of courts, and that many of his formative ideas can be built upon and extended in a way that enhances understanding of the role of courts in contemporary Indonesia.

Author: Dr Melissa Crouch is a Senior Lecturer at the Law Faculty, the University of New South Wales, Sydney. Her research contributes to the field of Asian Legal Studies, with a concentration on Law and Development; Constitutional Change; and Law and Religion. Her research has a particular focus on Indonesia and Southeast Asia, where she has conducted extensive socio-legal field research. Melissa is the author of Law and Religion in Indonesia: Conflict and the Courts in West Java (Routledge, 2014). She is the editor of The Business of Transition (Cambridge University Press, 2017);  'Islam and the State in Myanmar' (Oxford University Press, 2016); and Law, Society and Transition in Myanmar (2014, Hart Publishing). Melissa has published in a range of peer-reviewed journals, including International Journal of Constitutional Law, Sydney Law Review and Asian Legal Studies

Paper 2: The District Courts in Indonesia
Abstract: This chapter is divided into two parts: first, an introductory section describing the civil and criminal jurisdiction, procedural framework, judicial personnel and legal development of Indonesia’s District Courts (Pengadilan Negeri) since the fall of Suharto in 1998.  The chapter’s second part will comprise an empirical study of the determinants of sentence severity in murder cases in Jakarta’s District Courts.  Indonesia is a civil law jurisdiction within which trial judges are afforded an exceedingly wide sentencing discretion in murder cases.  It is commonly assumed that sentences in Indonesian murder cases are more severe, extending to the death penalty, when the case involves sadistic and unnatural acts, a repeat offender, multiple victims, public opprobrium, or separatist motivation (Haryoso, 1997).  This chapter’s case study, based on online case law data collection from Jakarta’s four District Courts (Central, East, South and West), together with interviews with several judges from those institutions to be conducted in February 2018, aims to ascertain the determinants of sentencing severity in post-1998 Jakarta murder cases, to confirm or deny existing assumptions about the operative criteria, and within the broader aims of the edited volume, to determine what District Court sentencing patterns reveal about Indonesia’s broader judicial culture.

Author: Dr Daniel Pascoe is an Assistant Professor at the School of Law, City University of Hong Kong.  He received his undergraduate degrees in Law and in Asian Studies (Indonesian) from the Australian National University, and his Master of Philosophy in Criminology and Criminal Justice and Doctor of Philosophy in Law degrees from the University of Oxford, where he was the Keith Murray Graduate Scholar at Lincoln College.  Daniel has published on crime and punishment in a number of Southeast Asian jurisdictions, including Indonesia.  His first monograph, entitled ‘Last Chance for Clemency: Clemency in Southeast Asian Death Penalty Cases’ is forthcoming with Oxford University Press.

Paper 3: Indonesia’s Industrial Relations Courts

Abstract:  How should we approach the study of the various special courts that have proliferated in Indonesia since the fall of the New Order? In particular, can we see the new special industrial relations courts as successfully having judicialized labor rights? Building on a thorough examination of their historical antecedents, legal origins and structure, this article focuses on a careful review of cases brought before the industrial relations court. This chapter provides a critical reflection and assessment of labor rights protection and litigation in Indonesia today.

Author: Dr William Hurst works on labor politics, contentious politics, political economy, and the politics of law and legal institutions, principally in China and Indonesia.  He is currently completing a book manuscript on the comparative politics of law and legal institutions in China and Indonesia since 1949.  For this work he has completed more than one year of fieldwork in each country since 2006. Before coming to Northwestern in 2013, he was a postdoctoral fellow at Oxford and an assistant professor at the Universities of Texas and Toronto. He is an active participant in the department’s strength areas on Asian Politics and Law & Politics.

Paper 4: Legal institutions as an approach: the theoretical importance of Dan Lev’s work

Dan Lev is mainly remembered as an inspiring Indonesianist, a member of the legendary Cornell-group established by George McTurnan Kahin in the 1950s.  Outside of Indonesianist circles his name is not often mentioned and his work seldom referenced. Yet, the approach Lev used to look at the Indonesian legal system has all the characteristics of a law and society scholarship that is universally applicable and that deserves to be more widely recognised. This paper explores these characteristics of Lev’s work, locates them in the broader field of law and society approaches developed by his contemporaries, and critically discusses what their use is. It will argue that the main reason for the relative ignorance of Lev’s work is the fact that he never articulated his approach very explicitly, that he thought of himself primarily as a political scientist, and, in the end, that he was happy to be an Indonesianist.

Bio: Adriaan Bedner is KITLV Professor of Law & Society in Indonesia at the Van Vollenhoven Institute for Law, Governance and Society, Leiden University. His research has a particular focus on access to justice, dispute resolution and the judiciary. This has led to publications on a wide variety of subjects, ranging from administrative courts and environmental litigation to human rights promotion in marriage law regimes and Indonesian legal education.

Popular posts from this blog

The impact of Covid-19 on research

Covid-19 is currently disrupting academic publishing in a number of ways.  There are disruptions to the global supply chain for the manufacture and distribution of printed journals. The following publishers have halted journal printing until further notice: Cambridge University Press (from 25 March 2020) Taylor & Francis (from 10 April) S ome journal editors or editing boards have suspended or delayed the review or publication process for academic journals.  On the other hand, some publishers are providing open access content for a limited period of time. See the following links from the UNSW library  and the  ANU library , or select publishers websites such as  OUP .  The University of California Press has opened free access to all its journals until the end of June 2020 Hart Publishing is currently offering free access for libraries to its online platform,  Bloomsbury Collections , until the end of May. To enable access for your institution, email Hart at O

Access to Justice and Administrative Law in Myanmar

Administrative law is an important part of access to justice because it can operate as a check and balance on government decision-making, and provide an avenue for individuals to seek review of government decisions. In a report sponsored by USAID and TetraTech for their 'Promoting the Rule of Law in Myanmar' program, I emphasise the importance of administrative law in Myanmar in promoting good governance, accountability and checks on executive power.  The main avenue for judicial review of administrative action in Myanmar is the constitutional writs under the 2008 Constitution. Since 2011, a large number of applications for the constitutional writs have been brought to the Supreme Court. The Writ Procedure Law 2014 was introduced to clarify the Supreme Court procedure for handling writ cases. The constitutional writs are a new area of law and support needs to be provided to a range of legal actors in order to take hold of the potential opportunity this provides.  Ef

Professional Legal Education in Commercial and Corporate Law in Myanmar

Dr Melissa Crouch and Associate Professor Lisa Toohey of UNSW Law Faculty are undertaking a Professional Legal Education Project in Commercial and Corporate law in Myanmar (2016-2017), funded by the Asian Development Bank.  Melissa Crouch is the Team leader and Legal Education and Myanmar Law expert. Lisa Toohey is the Legal Education and Commercial Law expert on the project.  Emma Dunlop is the Legal Researcher and Project administrator. Melissa Crouch at the USC Strategic Action Plan meeting 2016 The focus of the project is on improving legal education and skills integral to the transactional practice and adjudication of commercial law, at this critical time in Myanmar's transition to democracy. The project includes developing a training program for the practical legal training needs of private lawyers, government lawyers, prosecutors and judges in commercial and financial law.  Melissa, Lisa and Melinda with law students from Dagon University In 2016, the first stag