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.