In Search of Scholten’s Legacy

The meaning of the method of rechtsvinding for the current Indonesian legal discourse

DPSP Annual Volume 1 (2020)
Online ISSN: eISSN 2667-2790
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Keywords

method of finding law, method of rechtsvinding , types of finding law, types of rechtsvinding, Indonesian legal system.

Article Info

Category: research
Research Question: New perspectives on law and reality
Reviewed by: Stijn van Huis, Rens van Zaltbommel
Cite as: Shidarta, . In Search of Scholten’s Legacy: The meaning of the method of rechtsvinding for the current Indonesian legal discourse. DPSP Annual, I: Research, Volume 1 (2020), 197-237.

Abstract

This article will first trace Paul Scholten’s legacy concerning the method of finding law (rechtsvinding) in the work of two well-known Indonesian legal scholars, Sudikno Mertokusumo and Bernard Arief Sidharta.
Then the latest development of the discussion about finding law (rechtsvinding) will be discussed in the context of a verdict of the South Jakarta District Court for which Bernard Arief Sidharta had been engaged as expert witness. The judgment drew quite some public attention in the beginning of 2015.

1. Introduction

In his lecture at the opening of the Rechtshogeschool in Batavia in 19241, Paul Scholten explained that the establishment of this first institution for higher education in the then-Dutch East Indies took place in a period in which there was a crisis of law and legal science. Even though Scholten sojourned only once in Batavia, his thoughts on legal theory and philosophy became familiar among Indonesian scholars. Scholten’s works have influenced the legal thinking of the first generation of Indonesian jurists, of which most have contributed their knowledge to the first format of the Indonesian legal system. One of Scholten’s contributions to legal theory and legal philosophy concerns the method of finding law2 as published in his masterpiece, the first chapter of a book entitled the Algemeen Deel, which has recently been translated in English.3 Ever since, the topic of finding law has been taught in the law schools in Indonesia. There was no influential textbook on legal theory and legal philosophy written by the first generation of Indonesian scholars which discussed the method of finding law comprehensively. This is understandable since most scholars in this generation were still capable of reading the original text of Scholten’s books. The legal discourse on finding law was further painstakingly exposed by the second generation, mainly by two leading legal theorists from Yogyakarta-based Gadjah Mada University, Prof. Sudikno Mertokusumo and Bandung-based Parahyangan Catholic University, Prof. Bernard Arief Sidharta. Both prolific writers were involved in some translation projects of the works of Scholten and other Dutch legal scholars and both accentuated the importance of thinking about finding law4 in the way which was proposed by Scholten’s teaching. Their writings were used nationwide as textbooks in most law graduate programs and created not only acceptance of Scholten’s ideas about law finding, but also of related ideas such as exposed in the book Drie Typen van Rechtsvinding5 of Wiarda.

Nowadays, legal discourse about finding law is getting new relevance by the work of Prof. Satjipto Rahardjo6 of Diponegoro University, who gains many followers among legal academics and law enforcers. As a legal sociologist Satjipto has never connected his doctrine to Scholten’s method of finding law7, but his persuasion has led to new attention for the problems of law finding as discussed in Scholten’s work and can also be considered as a new promotion of the third type of Wiarda’s three types of finding law. There recently has been a series of debates, discussing the most appropriate methods of finding law, concerning several high-profile legal cases in Indonesia. Issues of finding law in Indonesia always remind us of Scholten’s doctrine. It is intriguing to realize that more than nine decades after Scholten’s speech at the opening of Rechtshogeschool, the crisis of law and legal science still prevails.

Scholten’s great influence on the first generation of Indonesian post-independence legal scholars becomes apparent in the books written by legal scholars, such as for example the criminal law expert, Moeljatno (1909-1971) of Gadjah Mada University. We can visibly trace Scholten’s thought where he discusses the difference between extensive interpretation and analogy.8 Later, at Gadjah Mada University, the important scholar, Sudikno Mertokusumo made, along with Siti Soemarti Hartono, Scholten’s thought popular. Hartono was the translator in Indonesian of Scholten’s book, “Algemeen Deel’, which was published for the first time in 1992 by Gadjah Mada University Press9. Sudikno Mertokusumo (1924-2011) was a former bureaucrat and judge who later transformed himself into an academic teacher at Gadjah Mada University. Shortly after the independence of Indonesia, Sudikno worked at the Defence Ministry (1945-1947). Afterwards, he studied at the Law Faculty of Gadjah Mada University and graduated as bachelor of law in 1958. Then, his career as a judge had brought him to become Head of the District Court in Yogyakarta (1966-1970) and eventually he became Head of the District Court in Bandung (1970-1972). While working in Yogyakarta, he wrote a dissertation in 1971 under supervision of Prof. R. Soekardono10. Bernard Arief Sidharta was of a younger generation than Sudikno Mertokusumo. He was born in Garut, West Java Barat in 1938 and passed away in 2015. His career started as lecturer at Bandung based Parahyangan Catholic University where he became a well-known professor on legal philosophy and legal reasoning. His 1996 doctoral dissertation11 can be characterized as an elucidation of Scholten’s thought and an attempt to adjust this thought to the Indonesian mindset.12 Bernard Arief Sidharta was also a member of the West Java Provincial Parliament in 1971-1981.

This article starts with an outline of Scholten’s teaching on 'rechtsvinding' which is subsequently connected to the work of Sudikno Mertokusumo and Bernard Arief Sidharta. This connection shows how the legacy of Scholten is still quite strong in the academic world. Problems arise from the practical area when some legal practitioners no longer understand the essence of 'rechtsvinding' according to Scholten's concepts. This phenomenon can be observed from the example of case No. 04/ Pid.Prap/2015, analyzed in this paper, in which Bernard Arief Sidharta was also present at the pre-trial hearing as an expert explaining about law finding technique. Although he had received an explanation from the expert Bernard Arief Sidharta, in this case, the judge apparently has misquoted Arief's opinion and this further sparked the controversy over the case.

2. Scholten’s Teaching on ‘Rechtsvinding’

According to Scholten, finding law13 is not a simple task. 14 His theory develops a method for law finding, which differentiates applying law15 and creating law16 from finding law.

Applying law is not the correct term for the determination of what is actual law between the parties, neither forming nor creating law, but the old term ‘rechtsvinding’ (finding law). Law exists, but it has to be found, the finding comprises the new. Only the person who identifies law with rules is faced with the choice: either creation or application. (General Method 51)

Applying law is thought to only require knowledge of facts and rules. Henceforth, a syllogism process is then conducted. The rules are thought to originate from laws. Scholten perceived however that laws are not always available and that even if a law is available, it is not always precise in providing solutions. This is why law finding is required. Scholten differentiated between two conditions which can initiate finding law. The first situation takes place when norms of positive law exist but are not precise. In such a condition Scholten suggests that an interpretation method should be applied. The second situation occurs when norms of positive law are not or not yet available. In this event, he suggests using analogy:

It is possible that a legal question in a concrete case can neither be answered with the help of interpretation of the law according to common parlance or the intention of the legislator, nor with systematic interpretation. (…) We are confronted here with analogy; a rule is applied in a case that is not covered by it according to the wording or intention of the rule, as far as this can be known, but which is similar to the case that is covered by such rule. (…) According to this view, finding law by analogy is closely related to finding law by construction. (…) With construction we subsume a case under a general rule; with analogy we convert a particular rule into a general one, which is not written down in the law, and then derive from this general rule a conclusion in a particular case.(General Method 243-7)

In General Method Scholten starts with a distinction between the historical legal interpretation method, which applies a subjective approach and the grammatical method that applies an objective approach. In Scholten’s view the subjective and the objective approach should merge.

What matters is not: either the (historical LHC) will of the legislator or the words of the law; not either subjective or objective meaning. The written law is both a historical phenomenon and a factor, which is non-material but nevertheless real in contemporary life. The text of the law is both the expression of the will of certain persons in the past and at the same time a guideline for the present, which is independent of these persons, but it can only be the latter because it is also the first. (General Method 174)

Besides Scholten explains that, when a law is interpreted, the interpreter is not confronted by only one law. Law must be seen comprehensively, as a systematic whole. Only then it is possible to treat the same cases in an equal manner. This is why systematic interpretation is required:

We cannot suffice with the law as an expression of the will of specific persons. Every new law becomes a part of the codification as a whole. This whole is not the work of specific persons; it is not possible to speak of an intention regarding this whole. (General Method 185)

Scholten also mentioned the need for a sociological or teleological interpretation, because according to him, every law unavoidably focuses on an assessment of community interests. There is a constant change of interactions in society, which creates the need for changes in the interpretation of the law. Scholten summarized the many factors which are included in interpretation and which all side by side influence the meaning given by interpreting the law as follows:

The common parlance and the legislative history, the system of the law as a whole, social goals and effects of application, the historical development, these are therefore all factors that exist alongside each other, invested with the authority to determine what is legally valid by virtue of the law.(General Method 150)

The need for interpretation implies that finding law forms an essential part of the law. Scholten gave a very detailed explanation of his view on the relation between analogy and construction. Different from most of his contemporaries Scholten rejected the idea that analogy should be avoided in penal law, while the extensive interpretation could be accepted:

In the criminal law it is said that analogy is forbidden, while extensive interpretation is admitted. However the examples of extensive interpretation, given by the advocates of this conception, could just as well be called examples of analogy.(…) This doesn’t mean that there was not a good reason for the enforcement of criminal law to oppose to the analogy.(…) Legal certainty, to which can always be appealed when rejecting analogy, has a special meaning in criminal law, because there it also serves the protection against the arbitrariness of the judge. (…) There is therefore a good reason why people have scruples about analogy in the criminal law. That one cannot do without, is proven by the examples which I quoted. The difference is only gradual: one will only be allowed to climb up to a higher rule with the utmost care; the new rule will have to contain nearly all the elements of the given existing rules, the generalization has to be kept within boundaries which are as narrow as possible. One can formulate this as severely as one wants, a fundamental difference doesn’t exist here. The private law has a different position in all this. Here we are not allowed to say, as in the criminal law: injustice if needs be, provided that it is injustice in the interest of the suspect. Here we do not have two unequal magnitudes facing each other, community and individual, of which the latter finds protection in the fixedness of the written text of the law. Here the individual faces another individual and even if the written law, like any law, limits the power of the judge and aims to keep him therefore from using analogy, then art. 13 ‘A.B.’ (General Provisions), which obliges him to do justice in every case, forces him in another direction. It is out of place to deliver the judgment here: in the text of the law I do not find a reason for a conviction, therefore I give acquittal. It would mean injustice to the plaintiff. (General Method 278-81)17

Scholten accepted thus even in criminal law the need to use analogy, which is based on the finding of new norms, which are higher, more common and more abstract compared to the existing norms. Between the norms of positive law and these more abstract norms found by analogy there exists according to Scholten merely a gradual difference. Besides analogy the method of construction consists according to Scholten of fiction, refinement of law18 and the argumentum a contrario19. According to him, fiction is a supporting tool to reduce regulations and definitions. Construction and fiction blend with each other because both create a simplification. The difference is that in construction part of the facts are removed, while fiction adds facts. The construction may contain fictitious elements but should never be fiction. The construction turns into fiction as soon as construction considers the fictitious facts to be true.20

The explanation of this type of basics about the method of finding law is one of Scholten’s most important contributions. His understanding of it is fundamental. It is not easy to find writings on the method of finding law which provide such clear distinctions concerning its methods. Scholten was convinced that in the process of finding law for a particular concrete case one has to start from the facts as a whole. In his view the law appears from the facts: jus in causa positum21.

Imagine an accident on the road. There has been a collision between a motorcycle and a car; they both accuse each other. You did not follow the rule objects the one to the other. That may be true, answers the other, but I could not and ought not follow this rule anymore, because you forced me to act as I did as a consequence of your way of driving. And so one could go on. One could indeed reason that this argument can be reduced to an appeal to a rule and its exception, to the exception to the exception and so on endlessly. The truth is however, that the judge finds the culpability by valuation of the case as a whole. Jus in causa positum. It is in the facts themselves that law is to be found. Only much later we will be able to explain what meaning can be given to this saying. At that stage we will see to what extent the general validity, which is presupposed in every judicial decision, can also be met in such a case. At this moment it is only necessary for us to point out that the law is not found here by inference from a rule, not even from a self-created rule. If one wants to speak here about a rule, then this rule neither precedes the activity of the judge in time, nor does it logically precede the decision. The rule is given simultaneously with the decision. The decision itself has an autonomous meaning.(General Method 39)

The existence of laws can assist judges to disqualify or accept an event as a legal event, but it cannot be used to assess how the law should be applied.22 The judge’s appraisal of the applicable law will be given by relying on conscience and morality or based on the judge’s psychological life.23 Scholten states quite explicitly that he thinks that law-finding is conducted in an irrational way. 24 In the end a judge cannot be held accountable by an appeal to his ratio, but only by an appeal to his conscience. Only by accepting this responsibility the judge can make his verdict dignified.

Generalization of the reaction of the individual legal conscience in a certain case into a general rule of the conscience of law is out of the question, already because the ‘rechtsbewustzijn’ (legal conscience) speaks only then when a person who is aware of his responsibility forms his judgment. Noteworthy in this respect is the information given by B. ter Haar Bzn., that the European judges in Indonesia, in their search for the ‘in de rechtsovertuiging levend ongeschreven recht’ (unwritten law which is present in the conviction of law), so often were confronted with the objection that the local ‘volkshoofden’ (chiefs) were not able to communicate the content of the ‘adatrecht’ (local law), when they could not empathize in an actual case and were not required to decide it. The idea that when searching for law we should lean on the legal conscience of a ‘volk’ (nation) about a certain issue, fails to appreciate the nature of the decision, residing in every legal judgment; a decision, which can only be taken when responsibility is felt. It is the task of the jurist to make himself aware of this. (General Method 494)

Scholten distinguishes between on the one hand the individual conscience that speaks in a person who is responsible for a decision and who listens to his inner voice when he wonders how he has to act and on the other hand the general conscience of a nation, its collective ideas about the good and the bad.

What we call „conscience of law" is in this context nothing other than a more or less vague conception about what ought to be law, not much more than public opinion. The parliamentary system tries to find a method to discover it and to distill legal rules from it. How poorly it succeeds in this. But apart from this we know only very little about the conviction of the ‘volk’ (nation) or of the majority. (General Method 492)

The general conscience of law becomes apparent and comes as it were to life by the fact that the judge takes recourse to it in his decisions in specific cases. By taking this recourse the judge makes his/her decisions understandable and acceptable for others. Assessments concerning the applicable law are conducted philosophically by referring to several universal principles. Scholten mentions five principles, which give guidance to judges in assessing the applicable law of a case.25 The legal systems in every country will have these same principles as they are inherent in law, they will however be differently elaborated in different periods and different countries26. Scholten expressed that all law is rooted in understanding the distinction of good and bad. This is logical as anyone encounters difficulties in understanding law if she/he is unable to differentiate between goodness and badness. Naturally, law has to prioritize goodness and to repudiate badness. This is the only way to enforce the law. The just principle assumes equality and at the same time it deals with the authority principle, which actually assumes inequality. The two other principles are: personality and communality. One could schematize27 Scholten’s thought in the following way.

This scheme is a simplification of Scholten's view, in which he merges the fundamentality and universality of the above-mentioned description of legal principles with the structure of the (dogmatic) legal science. 28 In the scheme, which is inserted below, Scholten distinguishes three legal sub-disciplines, i.e: legal science (doctrine of positive national law), theory of law (about universal concepts such as legal personhood) and legal philosophy (the ideas of law, wisdom). In the bottom part of the scheme, Scholten shows that law can also be studied as an empirical phenomenon, by sciences such as sociology of law or the history of state. Dutch legal scholars, such as DHM Meuwissen and J.J. H. Bruggink, of whom some texts are vey popular in Indonesia and translated by Sidharta29 were very much influenced by Scholten’s view on the nature of the doctrine of national positive law as being at the same time normative and factual. For Meuwissen and Bruggink this combination of factual and normative is a reason to speak rather in terms of legal dogmatics than in terms of legal science as Scholten did.30

There is a close relationship between the rechtsvinding-method of Scholten and his view on legal doctrine as a legal science. For Scholten the term science refers to a manner of reflecting and discussing legal issues without a deciding claim of truth or justice. It is the power of the state from which individual judges derive the authority to give legal judgments which are valid. These judgments are understood and ordered by legal science and get by this a deeper meaning. It is God’s being which decides - in a manner which cannot be penetrated by the human mind - the ultimate validity of these judgments. Although the legal scholars which feel themselves influenced by Scholten accept Scholten’s belief31 that legal doctrine is a combination of the factual and the normative, they focus – different from Scholten – on the need to develop a method of finding law which can legitimize/justify the judgments of individual judges.32 In this way the appeal to Scholten has founded a newly emerging branch of the legal disciplines. The difference between rechtsvinding according to this newly emerging branch and Scholten’s own view can be well captured by comparing Scholten’s scheme with the one made by us above.

3. Sudikno Mertokusumo’s Works

In his lectures, Sudikno not only commonly quoted Paul Scholten but also G.J. Wiarda.33 In the introduction of his dissertation34, he starts by quoting Scholten’s farewell address35 of 1945 at Amsterdam University with the words

The man who seeks scientific knowledge for the sake of science itself will shrink. (trans. S)36

Apart from his dissertation, three of Sudikno’s books are relevant in relation to the theory of Scholten on finding law: 1. a book on Indonesian Civil Procedural Law (1977)37 ; 2. a book containing an introduction to law (1986)38; 3. a book on the method of finding law (1996)39. Further Sudikno edited a book40 in 1993 which contained a chapter of his own hands about law enforcement and law finding41 next to two chapters with an Indonesian translation of two well-know publications of Pitlo: Het Systeem van het Nederlandse Privaatrecht42 (System of Dutch Private Law)43 and Evolutie in het Privaatrecht44 (Evolution of Civil Law) 45.

In the chapters written by Pitlo, there were important references to Scholten’s thought. Pitlo qualified Scholten’s thoughts on rechtsvinding as a modern conception of finding law. Sudikno takes over this qualification in his own writings.46 Among all the books mentioned above, the book with the introduction to law47, has the greatest number of references to Scholten.48 This book was first published in 1986 and was used as a textbook for the undergraduate programme. The book has however also been very popular among postgraduate students, specifically those who studied at Gadjah Mada University and other universities in Yogyakarta. It is intriguing that in the chapter of this book which discusses finding law, Sudikno did not mention Scholten’s name explicitly. Therefore readers who never attended Sudikno’s lectures, will probably have assumed that Sudikno’s view on finding law was not directly related to Scholten’s view, but to a younger generation of Dutch legal scholars such as Algra49, van Eikema Hommes50, Nieuwenhuis51, van Hattum52, and Wiarda.53 These authors are thus widely known by Indonesian jurists because of the lectures they have had and by the way Sudikno has referred in his writings to these authors.

So, while deliberating on the method of law-finding, Sudikno referred to many scholars, which were comparatively junior to Scholten. Even in his writing on finding law, Scholten’s name was rarely found, although his name was stated in the bibliography.54 In the book which contains an introduction to law55 Sudikno has elaborated Scholten’s thought about legal principles56, an important issue for Scholten as becomes clear from his scheme of the structure of science. Scholten’s view on “legal principles” and on the “openness of the system of law”57 was Sudikno’s main focus. Even though Sudikno did not refer to any of Scholten’s texts when he explained the issue of finding law it was clear for those who had read Scholten’s works, that actually Sudikno used Scholten’s works. This was evident from the fact that the case studies used by Scholten in his texts, were apparently also used by Sudikno in his books. For example, while discussing the argumentum a contrario58, Sudikno used the example of the waiting period (iddah)59 for a woman to remarry. Or, while explaining about refinement of law60, Sudikno also used the example of unlawful acts61 caused by the plaintiff’s wrongdoing. These examples can definitively be traced back to Scholten’s texts.

To those who have attended Sudikno’s lectures in the classroom, it will have been clear how important he deemed the role of the judiciary in law-finding. Sudikno also explicitly agreed with Scholten concerning the fact that basically the nature of every judiciary is determined by the use of precedent, while normally this is attributed as a specific characteristic to the Anglo Saxon judiciary.62 The ideas about law finding of Sudikno are linked to the thoughts of Scholten in a way which is comparable to the way the ideas of the new generation of Dutch legal scholars were linked to Scholten. Particulary relevant for this link has been a small book by Wiarda, published in 1972. His Drie typen van rechtsvinding63 has not been translated in Indonesian but has been disseminated in Indonesia by the lectures of Sudikno and others. In his Drie typen van rechtsvinding Wiarda pays tribute to his teacher and promotor Paul Scholten, whose thoughts he keeps always in mind, especially his Algemeen Deel. Wiarda makes a distinction between three types of judges in reference to Montesquieu’s book De l’Esprit des Lois64 and this distinction has been seminal for the young Dutch legal theorists in the seventies of the past century.

Firstly, Wiarda discerns the judge who acts as the mouthpiece of the law (la bouche de la loi). In this case the judge is a fully heteronomous judicial lawmaker. In history, such a type of judge served the republican state model (état républicain) and is its ideal type. In a republican state there is according to Montesquieu a separation between the three powers which together determine the law: the trias politica of the legislative, executive and judicial powers. In this republican model it would not fit when the judge would use the method of finding law. Secondly, a type of judge who is completely autonomous in finding law. This kind of judge lives in a despotic country (état despotique). In this kind of state, a judge settles a case arbitrarily without holding on to the laws. Thirdly the monarchical model of state in which a type of judge fits who is positioned between the first and the second type. Such a judge holds on to laws when these are clear, complete and detailed. However, when the laws are unable to give clear meanings, the judge will give a new meaning to the soul of laws. Wiarda is inclined to follow the third model. His view in this matter does not follow Scholten in supposing that there are laws that are clear, complete and detailed. Scholten states that every law, even the most carefully worded, needs explanation.65 Wiarda follows Scholten however in his view that the judge qualifies concrete events by connecting these to laws which formulate a ‘Sollen’ (what should be) that is bound to a ‘Sein”, to historical facts. This means that the law is not a closed system, but dynamic and evolving in time. Law evolves not just due to its establishment through laws, but also through its implementation in cases. As expressed by Scholten, a judgment in a case is a law of itself.

Basically, Sudikno followed Wiarda. He gave a simple scheme for dispute procedures at court. It showed law finding (I) as a momentum within a dialectic process between the concrete facts of a case and statutory rules regulating it. This is in contrast with the view of Bernard Arief Sidharta, who regards finding law as a much more comprehensive process. Bernard Arief Sidharta’s view will be discussed later in this paper.

According to Sudikno, law finding is established when a concrete case is linked to a legal source. In 1991/1993, the main legal source still is the statutory regulation, but he later66 added customary law, judge-made law (yurisprudensi), treaties, and doctrine to the list of sources. According to him all of these sources form a hierarchy. If there is a conflict between two legal sources, the highest legal source will conquer the lower one. More recently he expressed that in the doctrine of rechtsvinding the law has priority over other legal sources. In looking for a ruling or the meaning of a term, one has to look for it in the statutory regulation first. Thus, legal certainty is better provided for.67 By positioning statutory regulation above other sources Sudikno demonstrated his preference for legal positivism. Although he emphasized that justice is an element of law and an object of legal science, he nevertheless suggested that legal certainty has to be served first and should be prioritized in law finding. His view was challenged by a law professor of Diponegoro University, Satjipto Rahardjo68, who was widely known as founder of a “progressive” view on law, an approach which views law rather from the human value aspect than merely formally.

Sudikno was well informed about the different schools concerning law finding. He formulated his views about the narrow legalistic school as follows.:

Later it turned out that legalistic or heteronomous application of the law by the judiciary is no longer to be maintained because since 1850, the focus lies on independent law finding. A judge is no longer to be regarded as the mouthpiece of laws, but as an independent law creator, who moulds the law and adjusts it to societal needs. This thought is known as material-juridical or autonomous finding of law. Scholars who hold this view are among others: Oskar Bülow, Eugen Ehrlich, François Geny, Oliver Wendell Holmes, Jerome Frank, and Paul Scholten. According to this view, application of law by judges is not merely purely logical and rational, but is more directed at awarding juridical form to material law principles, which is not logical in manner and not based on abstract thinking, but much more on experience and juridical appreciation. Also it has been argued that laws cannot be comprehensive. Law is just a particular stage in the process of law making and law must find its completion in the regular legal practice of judges (judge-made law), where legal principles are the foundation of law, which are further elaborated and concretised, filled in and redefined with the aid of new principles. This way of thinking has been introduced since Etienne Portalis (editor of Civil Code 1804) and is nowadays widely adopted). (trans. MTA)69.

Sudikno’s link with Wiarda becomes apparent in the following phrases:

It is correct that the establishment of law in a modern legal framework is directed towards a dynamic view of law finding by judges or other officials to whom the task of legal implementation has been assigned. Consequently, it is being recognized that in the occasion of a legal vacuum or obscurity, a judge has his own task, which is giving the solution by legal interpretation. Despite of the fact that more and more people have left legalism or positivism, the starting point of law finding is a system: all rules are embodied in laws and only if there is a legal vacuum or obscurity of the law, then a judge can interpret. In such a settlement, the system becomes the point of departure (systeemdenken). (trans. MTA)70

The momentum of law finding takes place when it is realized that it is not clear how a concrete event should be linked to a legal source. Such gaps are bridged through interpretation or legal construction. In his latest book71, written and published when he was quite old (86 years old), Sudikno redefined his thoughts and showed new interest for a method of law finding which he derived from a quite old source.72 He started to consider the question whether the grammatical interpretation can be called a method of law finding. If this type of interpretation is categorized as one of the methods of finding law, then actually law finding takes place whenever a judge passes a judgment. It is here that Sudikno begins to depart from the view of Wiarda and approaches Scholten’s view.

4. Bernard Arief Sidharta’s Works

Sidharta was a prolific writer. Some of his books are translations of works of Dutch scholars, namely: Paul Scholten (De Structuur der Rechtswetenschap73); J.J.H. Bruggink (Rechtsreflecties: grondbegrippen uit de rechtstheorie74); D.H.M. Meuwissen (The chapters Rechtstheorie (   V), Rechtswetenschap (WVI) and Rechtsfilosofie (   VIII) in the eighteenth fully re-edited and revised print of Van Apeldoorn’s Inleiding tot de Studie van het Nederlandse Recht75, which were fully written by Meuwissen 76; the polemic of Soeteman contra Carel Smith about the normatieve character of legal science77; H. Ph. Visser’t Hooft (Filosofie van de Rechtswetenschap78) and J.A. Pontier (Rechtsvinding79). Sidharta’s own books concern an introduction to law in 2000 as co-author of Mochtar Kusumaatmadja80; his dissertation on the structure and nature of legal science in 1996 81; an introduction in logic together with co-author Aep Gunarsa in 201082), and a collection of papers of seminars about the developments of law in Indonesia in 201383. Finally, in 2014, he wrote the first chapter in a small book84 consisting of three chapters, edited by his two students, Anthon F. Susanto and Shidarta, who each also authored a chapter.

First and foremost, Bernard Arief Sidharta was interested to discuss the method of finding law, as elaborated by Paul Scholten. Scholten’s essay De Structuur der Rechtswetenschap85 is a fundamental text for Arief Sidharta. He based his dissertation86 on it, which was commercially published in 1999 and has been printed several times since. It is regarded one of the most read dissertations until now. It is used as a reference by almost all Indonesian books on legal philosophy, legal theory and by introductions to legal science. Scholten’s writing on the structure of legal science becomes the source of his interest to translate similar books published by Dutch scholars such as Bruggink and Meuwissen. His translation of Bruggink’s book was in fact published in 1995, a year before his dissertation, with its important reference to Scholten’s Structuur der Rechtswetenschap, was finalized. In 2007 Sidharta published his translation of the work of Meuwissen. This work can be considered as a complement to Sidharta’s thought on the structure of legal science and this later development of his thought can be found in his publication of 201387. Sidharta was also influenced by some of Sudikno’s translation works which were not yet published, but of which the drafts were already circulated between enthusiasts in Dutch legal philosophy and legal theory. In this way he became acquainted with works such as the polemic between Arend Soeteman an Carel Smith about the normative character of legal theory. This was Arief Sidharta’s favourite topic. Regarding the method of finding law Sidharta translated the fourth edition of Pontier’s Rechtsvinding. In the last chapter of this small textbook for undergraduate Dutch students Pontier gave an overview of many different views on the process rechtsvinding. Besides references to Pontier and Sudikno, Sidharta refers for the method of law finding to writers who were junior to Scholten but kept Scholten as an important point of reference for the idea of an open and dynamic system. Sidharta has more eye than Sudikno for the unavoidability of interpretation and is in this sense nearer to Scholten. He shares however the focus of the younger generation on justification of judicial decisions and refers for this particularly to the distinction between a context of discovery and a context of justification, which was introduced in the Dutch debate on rechtvinding by Van Nieuwenhuis88. Arief Sidharta elaborated his very comprehensive view on the process of finding law into the following scheme.89

Sidharta explains with the help of this scheme that all processes of finding law start when a real case occurs. Every real case presents a particular constellation of facts. Such a case comprises potentially a legal problem. To detect the legal problem a process of finding law is needed. This process of finding of law includes two contexts at the same time: the context of discovery and the context of justification. Both contexts present a heuristic process. In the context of discovery the heuristic process involves a factual and a normative moment. There are many types of fact to be assessed, such as societal and psychological facts. It is also important to assess what the current system of positive law has to say about the case. During the context of discovery a choice is made by identifying certain rules as the applicable rules and by selecting certain facts as legally relevant facts. Only those rules and facts are selected which are relevant to formulate the particular constellation of facts of a real case as a legal problem, as a legal case. This process of discovery is a process which can be described as an hermeneutical cycle, namely a process in which one reasons back and forth process (Hin- und Herwardern des Blickes): from the rule to the case and from the case to the rule.90 As the scheme indicates, the hermeneutical cycle is conducted by applying various types of interpretation and the use of construction. As elaborated in the scheme, Arief Sidharta connects this process with the context of justification, that is a heuristic process in order to find the objective of law, such as legal certainty, justice, and the impact on society. In fact, this context starts at the moment the legal problem has been formulated and continues until the moment of passing the judgment. He calls it the moment of judgment. This moment is not entirely rational due to involvement of policy and the moral character of the judge, who is the actor in this process of finding law. Once the legal decision for a specific case has been taken, the judgment belongs to society. The judgment is then subjected to discussion in legal fora (auditoria iuridica) which consist of legal theorists and practitioners and thus the judgment will become part of a formulated inter-subjective legal conscience. Moreover, the judgment will also hold a solution for the conflict between the affected parties. In this context of justification, every judgment is required to have rational and normative accountability. The benchmark of the accountability of a judgment concerns the juridical appropriateness of the provision, its effectiveness and if applicable its social impact. Some judgments will be absorbed as judge-made law (Jurisprudence). This means that such judgments do not merely have meaning for the case which they decided but will get a wider and more general normative meaning as part of the inter-subjective legal conscience of a certain people at a certain time and place.

While the view of Sidharta aligns pretty well with Scholten’s view as far as the context of discovery is involved, it departs from Scholten concerning the context of justification. Although Scholten acknowledges a phenomenon as the inter-subjective legal conscience of a certain people at a certain time, he states that the content of such a collective conscience cannot be demonstrated.91 Whether a certain decision is complying with it can therefore not be established with certainty. According to Scholten the decision of the judge can ultimately not be justified, because it is rooted in the individual conscience of the judge. The decision of the judge cannot be argued rationally. It is an irrational leap to a conclusion.92 The introduction to law, which Sidharta wrote as co-author of Kusumaatmadja93 contains one chapter (VIII) which explains the concept of rechtsvinding and a number of rechtsvinding methods in a manner which reflects the views of Scholten and Wiarda. Sidharta and Mochtar Kusumaatmadja express that in the Indonesian legal system with its open legal system the position of the judge or judiciary is relatively important as a legal source.94 It is in this respect quite interesting that Scholten is only mentioned once in the book, not in reference to his Algemeen Deel, but referring to his essay on the structure of legal science95. It is not clear why his works are not recommended to the readers in the selected bibliography at the end of the book. Wiarda was not even once mentioned in the book. Arief Sidharta notably established himself in particular as a theoretical person with little experience as a practitioner, while Sudikno Mertokusumo, started as a practitioner and only later became an academician. This starting point gives a different touch to their focus on discussing Scholten’s works. Arief Sidharta regarded Scholten primarily as a mastermind who developed a view on the structure of legal science in a broad sense96. Arief Sidharta thus assisted readers to understand Scholten’s thought at a philosophical level. In contrast Sudikno Mertokusumo, who was not much interested in Scholten’s philosophical thought and in his ideas about the structure of the legal science, elaborated Scholten’s thought into a more practical dimension by giving detailed examples of various methods of finding law. Although he did not mention explicitly his reference to Scholten’s writings these examples had their source apparently in Scholten’s first chapter of Algemeen Deel.97

5. Development of Judge-Made Law in Indonesia

This article aims to contribute to the development of judge-made law in Indonesia. Judge-made law is the result of the process of finding law when a judgment appropriately becomes a precedent because new norms have been established during the process of law finding. Traditionally there had been no special attention for judge-made law in the Indonesian legal system, although in general, a judge was thought to pay attention to the values living in society98. Nowadays, however, this seems to have changed. The Constitutional Court for example grants frequently a judicial review of a newly passed law.99 In principle every two years the Supreme Court100 issues a book which comprises a compilation of court judgments, to which then is referred as judge-made law. When this article was written in 2016, the last publication had been in 2014.101 The public can also visit the Supreme Court’s official website102, which instantly broadcasts court judgments online. The first page of every judgment mentions the criteria of a judgment (the ratio-decidendi), regardless of whether it was about a judge-made law103 or not. Even, when it is stated as "judge made-law", it is often not easy to identify the formulated new judge-made law.

In order to explain the difficulty to formulate new judge-made law a judgment will be discussed here as an example. It is a judgment about the nature of a pre-trial hearing104. Pre-trial hearing belongs entirely to the authority of a district court. The verdict of the district court is final and binding so that there are no appeal and/or cassation remedies after the decision. There is indeed some discussion whether pretrial judgments could be subjected to judicial review105. This issue is however not part of the analysis in this paper. The analysis of "the judge-made law" in the paper is about the legal views of Judge Sarpin's in his decision in the South Jakarta District Court in a case about pre-trial hearing. 106 Arief Sidharta was an expert witness at the hearing in this case. In this judgment, the (single) judge quoted several times Arief Sidharta’s views.107The formulation of "judge-made law" in district or appeal courts is usually oriented at legal views the Supreme Court has agreed with. However, this is not the only direction of orientation. This implies that even a district court as a first level institutional litigation can make a "judge-made law" decision which is then followed by other courts.

5.1 The Judgment which quotes Sidharta’s views

The judgment of the South Jakarta District Court concerns the review of a case, which drew very much public attention in early 2015, and it reveals very well how the problem of finding law presents itself in the Indonesian judiciary practise. The case started when the Police General Commissioner, Budi Gunawan (BG) was officially indicated as a suspect by the Komisi Pemberantasan Korupsi (KPK)108, while at the same time he was the only Indonesian National Police Chief candidate proposed by the President. BG then filed a request for a pre-trial hearing at the South Jakarta District Court, asking for a cancellation of his status as a suspect. In fact, the court granted his request. The judgment comprised some considerations which relate to each other, such as the definition given by the judge for the term ‘object of pre-trial hearing,’ the term ‘position of law enforcer’ and the term ‘get attention from and disturb the public’. In this writing only one of them will be discussed, because it is considered the most important, namely the issue of ‘determining a suspect as an object of pre-trial hearing.’ In relation to this topic there can be found the following consideration in the judgment:

Considering the formulation of Article 1 point 10 jo Article 77 jo Article 82 paragraph (1) and jo Article 95 paragraph (1 and 2) of Code of Criminal Procedures109, it can be seen clearly that the validity or invalidity of an order which determines someone as a suspect is not a pre-trial hearing object, as it is not [among the matters] regulated by the code of criminal procedure.110

The judge relied on Law Number 48/Year 2009 concerning Judiciary Power111, which prohibits a court from refusing to examine, adjudicate and pass a judgment on a case with the argument that there are no clear rules formulated. This means that when no clear rules are available the judge must be prepared to analyse and understand the legal values and sense of justice which are present in the current society. The judge concluded:

Considering that a judge’s authority to establish law (from law that was previously absent), is conducted by rechtsvinding methods, which have to meet scientific and legal standards; considering that a judge’s authority to establish clear law stemming from previous unclear law is conducted by using and applying the interpretation method).112

Noteworthy here is that the quote is about rechtsvinding (in judgment written as “recht finding”) and about using the interpretation method to clarify the unclear law, which refers to the grammatical, historical or systematic interpretation, while at the same time it says that the law is unavailable and has to be made available. This seems not correct because the absence of a rule is not solved with an interpretation method, but with the construction of a new legal norm: the creation of law113.

5.2 Analysis of the reasoning of the Judge

The relevant statement in the judgment by which the view of the judge becomes clear is the sentence

the 'validity or invalidity of an order which determines someone as a suspect' is not a pre-trial hearing object, as it is not [among the matters] regulated by the code of criminal procedure.114

If we read this consideration carefully, it means that the judge has achieved his conclusion about this issue first by the use of the reasoning pattern of an argumentum a contrario from two contradictory rules: 1. due to the fact that the rule does not list the indictment of being suspected of corruption as an object for “pre-trial hearing”, the judge is not allowed to decide the case. 2. This provisional conclusion is then however annulled by the next consideration, which gives room for finding law. It is stated that because there are no rules, the judge has to establish an applicable rule by using a method of finding law, which is scientifically and juridically justifiable. In the next step the judge expresses that he will apply an interpretation method. The judgment elaborates this as follows:

…the meaning and aim of ‘forceful measures action’ has to be correctly understood, i.e. that all investigator actions in the investigation process and all public prosecutor actions in the prosecution process are forceful measure actions, because the label pro justicia has been imposed on every action; that all investigator actions in the investigation process and all public prosecutor actions in the prosecution process that have not yet been regulated in Article 77 jo. Article 82 paragraph (1) jo. Article 95 paragraph (1) and (2) of the Indonesian Code of Criminal Procedure are to be considered as the object of pre-trial hearing, and the legal institution which is authorized to examine the legality of all investigator actions in the investigation process and all public prosecutor actions in the prosecution process is the pre-trial hearing institution …. which is directly related to applicant’s request because ‘suspect order’ is part of the investigator action series in the investigation process, and that is why the legal institution authorized to examine and assess the legality of ‘suspect order’ is the pre-trial hearing institution.(trans. MTA)115

Starting from the judge’s wish to search for a method of finding law which can be justified scientifically, this paper aims to offer a comparative analysis of such a scientific accountability. Noteworthy is here, that in other considerations, the judge expressed that the legality principle (nulla poena sine praevia lege116) is not applicable in the law of criminal procedure, but only concerns the material (substantial) criminal law.117 This statement is important because generally legal scientists think that analogy should not be applied in criminal law because in would violate the legality principle. The statement that the legality principle merely concerns substantial criminal law means that the judge from the beginning on was thinking that the case he is handling concerns the law of criminal procedure and that he because of this cannot be violating the legality principle while passing the judgment. Here, we are facing an interesting legal issue because on the one hand the judge expresses that he wants to conduct law finding (to a certain limit allowed in the realm of criminal law). On the other hand, it is clear that he realizes that his judgment potentially breaks the legality principle and that this will happen when he goes too far by using analogical reasoning118 and/or will create new law119.

5.3 Considering Scholten’s view

When considering how broad the consequences are of the considerations in this judgment, it is clear how necessary it is to study the demarcation line between finding law and creating law more accurately. This matter, is in fact, discussed specifically by Scholten in the first chapter of his Algemeen Deel, §2, which is on finding law, creating law and applying law. In the end of this sub-topic, he drew some important conclusions:

The actual legal relationship, we may conclude, is not only dependent on rules, but also on decisions. And these decisions in their turn are not found by sheer inference from rules. Applying law is not the correct term for the determination of what is actual law between the parties, neither forming nor creating law, but the old term ‘rechtsvinding’ (finding law). Law exists, but it has to be found, the finding comprises the new. Only the person who identifies law with rules is faced with the choice: either creation or application. This dilemma vanishes when there are other factors. I think I have shown that these other factors exist. (General Method 51)

Scholten emphasized that also court judgments are a source of law. Judgment is binding to parties, including judgment which seems to contradict statutory regulations. When there is a judgment which seemingly contradicts the laws, the judge is not conducting law application (as it seems to contradict statutory regulations) nor law creation (as the application of the judgment is limited to parties and as there is the possibility that the judgment will be annulled by a judgment of a higher court). According to Scholten, the proper term is law finding. As explained in section 2 of this article Scholten deviated from the general opinion of legal scientists that analogy should not be applied in criminal law because it would violate the legality principle, while the use of extensive interpretation would be allowed. Scholten thinks that there is no fundamental differences between extensive interpretation and analogy. There is no sharp demarcation possible between applying law and creating new law. There is a difference of degree, according to Scholten, between grammatical/historical interpretation, the construction of new abstract rules based on systematic/extensive interpretation and the analogy which creates new rules based on principles of justice. However, Scholten uses the concept of finding law to explain that the judge is never outside the domain of law, even when there is no clear rule within reach to apply in a case. The judge can and should always look for the ways in which he can link the new legal concepts and rules, with which he finds a solution in a legal case, with the concepts and rules which are already expressed in the existing law as a whole. When deciding a case of criminal law, the judge should acknowledge the legality principle as a very important principle, but not the only one.

From section 3 and 4 of this article it becomes clear that basically Sudikno and Arief agree with Scholten, although they are a bit more legal positivist in their belief that law finding is only needed in special cases when the law is not precise and have more attention for the possibility to legitimize or justify judicial decisions.

Considering the fact that the judge in this case did not explicitly express which method of finding law he applied, we can try to analyse which method he actually chose. For this we make use of two assumptions. First, that the judge tried to find law with the help of an interpretation method. Second, that the judge did go beyond the interpretation method and constructed a new norm. In the further analysis, we will connect the way law is found in this judgment with the legality principle as it is applicable in criminal law.

5.4.1 First assumption: interpretation

When the judge decides that interpretation is needed, he must decide which positive legal norms are applicable as the starting point of the reasoning. The judge must interpret which particular prescriptions for behaviour120 are formulated in certain positive legal norms to be able to qualify the action of ‘determining a suspect’ as such a prescription. Given the fact that the words ‘determining a suspect’ are absent in the relevant regulations, the extensive interpretation seems the most relevant interpretation to obtain a basis for the acceptance of ‘determining a suspect in a pre-trial hearing’.

In the case, Article 77 (entitled “judiciary authority to adjudicate” ) and Article 95 ( about compensation and rehabilitation) of the Indonesian Code of Criminal Procedures are applied together with the definition of pre-trial hearing as contained in Article 1.10 of the same Code. Article 77 says as follows:

The District Court is authorised to try and decide according to the legal provisions cases regarding: (a) Legitimacy or illegitimacy of arrest, detention (custody), termination of the investigation or termination of the prosecution; (b) Compensation and/or rehabilitation to someone, whose charge has been terminated during the investigation or prosecution stage).121

Furthermore, Article 95 of Indonesian Code of Criminal Procedures regulates compensation and rehabilitation. The details are mentioned as follows:

(1) The suspect, accused or convict is entitled to receive compensation for being arrested, taken into custody, prosecuted and tried or charged with other actions, without reasons required by law or due to an error about the person or the applicable law. (2) A compensation claim by a suspect or his or her heirs as a result of arrest, detention (custody) or other actions taken without reasons required by law or due to an error about the person or the applicable law as mentioned in paragraph (1), which case is not submitted to the district court, shall be tried in court as stated in Article 77].122

Article 77 and Article 95 of the Indonesian Code of Criminal Procedures can be broken down by observing a number of key words (see words in bold). Elucidation of Article 95 paragraph (1)123 clarifies that: “What is meant by ‘other actions’ concerning arrest is illegally entering premises, search or confiscation.” And “What is meant by other actions concerning detention is detention exceeding the sentence convicted.” The articles 77 and 95 can be grammatically interpreted in a rigid manner as follows:

To enable the analysis whether the judge has the authority to examine a case in a pre-trial hearing as stipulated by Article 77 of the Indonesian Code of Criminal Procedures, it is useful to make a distinction in three process issues, (1) (il)legitimacy of arrest and/or detention, (2) (il)legitimacy of termination of investigation and/or prosecution, and (3) granting compensation and/or rehabilitation. In the case of illegitimacy of arrest or detention, the pre-hearing procedure can result in a compensation and/or rehabilitation procedure as further elaborated in art 95. In the case that an investigation has been terminated, which affects certain people in a negative way, there can be an application for compensation and/or rehabilitation, but because the investigation has been terminated there will be no other actions concerned such as the ones elaborated in the elucidation of art 95. As the term other actions is not mentioned in Article 77, this term has to be interpreted as included in the words ‘arrest and detention’. Only then the elucidation of Article 95 is applicable. Now the judge can interpret art 95 restrictively as arrest, detention, and other actions, specified as entering premises, search and confiscation or extensively as arrest, detention, entering premises, search, confiscation and other actions (hereinafter referred as ‘arrest and other actions’). Only when the judge takes the latter reading of a series of actions as basis for interpretation, the determination of suspect can be categorized as fitting into this series. This is visible in applicant’s proposition which stated as follows:

(c.) That, by determining someone as a Suspect in casu the applicant without appropriate legal procedures mentioned in the Code of Criminal Procedures, his reputation and liberty has been seized. (d.) Other actions committed by Respondent by determining Applicant as a Suspect is legally flawed; respondent’s action was followed by other actions of ban , which is a character assassination affecting Applicant’s reputation, that of his family, and that of the Indonesian Police institution as a lawful state institution in accordance with Article 30 of the 1945 Constitution.(trans. MTA)124

In order to unite all those actions into a series which justifies a pre-trial hearing, the judge has to find the red thread which formulates the similarity between them. In this case the judge found this red thread in the doctrine that all investigatory actions are forced actions in "pro-justitia". Through this idea of forced action the judge is indicating the ratio legis, which he apparently derived from the argumentation of the Applicant, which quotes Indriyanto Seno Adji’s view and from the fact that this view is also substantially acknowledged by the Respondent who quoted Loebby Loqman.125 As illustrated below, imagine a judge who at first stood in a circle of arrest and detention, which as a result of the first step of interpretation, which comprised the selection of Article 77 jo Article 95 of the Code of Criminal Procedures as relevant source for the determination of a suspect, is extended to ‘arrest and other actions’. The Judge now has to widen the circle further by the extensive interpretation of ‘other actions’ to let it be wider than merely ‘entering premises, search, confiscation’.

If the judge wants to conduct an extensive interpretation, he has to believe that in combination with arrest the words ‘other actions’ always include investigatory actions which are forced actions. However, in fact not always investigatory actions in the context of arrest imply forced action, while at the same time not always the determination of a suspect implies a forced action.

5.4.2 Second Assumption: construction of a new norm

If arrest and other actions in fact not always includes forceful actions, the extensive interpretation has to be rejected as a solution here. Let us assume for the moment that the judge uses the method of constructing a new norm. The judge in fact acknowledged the application of this method by looking for the red thread in the doctrine. The method could then refer here to an abductive reasoning pattern126. This means, that there has actually been a shift from firstly chosing article 77 jo Article 95 and then secondly concluding that arrest and other actions also indicates investigatory forced actions pro-justice (pro-justitia). Then finally it is concluded that determination of suspect is an investigatory forced action in pro-justice. So, a syllogism is established as follows:

Major premise All investigatory actions pro-justice can be the object of pre-trial hearing.
Minor premise Determination of a suspect is investigatory action pro-justice.
Conclusion Determination of a suspect can be the object of pre-trial hearing

The Major premise is the ratio legis (law ratio) which the judge has discovered and which explains and justifies his decision according to his consideration. Such a manner of reasoning seems logical but the middle term in such a syllogism is never self-evident127.

Article 1 point 2 of the Code of Criminal Procedures gives a definition of investigation as follows:

Investigation is a series of investigative actions in terms of and according to the way stipulated in this law to search for and collect evidence which gives clear evidence of the criminal acts that occurred and to find the suspect. (trans. MTA)128

So the article refers to a series of investigatory actions. What are the series of investigatory actions, if the Maior as formulated by the judge is taken as point of departure, meaning that all investigatory actions pro-justice (pro justitia) can be the object of a pre-trial hearing. It can be concluded from the combination of various articles described that investigatory actions involve: arrest, detention, entering premise, search, and confiscation. The nature of investigatory action is to search and gather evidence. Art 1 point 2 of the Code describes two phases of investigation: 1. Establish that a crime has taken place; then 2. to find the suspect. This means that if the suspect is found, the suspect is determined. The description is as follows:

From this it can be concluded, as illustrated, that the determination of suspect can be regarded as an investigatory action, but not as a forceful action. Forceful action can be applied in the categories of searching and gathering evidence. Actions of arresting, detention, entering premise, searching and confiscating can correctly be categorized as forceful. Determination of the suspect is the end of investigation, it is in fact the defining mark (axiological dimension) of investigating. Determination of the suspect is not part of an investigator’s forceful action.

5.4.3 Relation to Legality Principle

If not only the grammatical (restrictive or extensive) method of interpretation cannot be used to characterize the way the judge reasoned in the case, but also the construction of a new norm did not succeed, what other predicates can then be used to analyse the reasoning of the judge?129 Should it be pure creation of law130 ex nihilo so to speak? According to the generally accepted opinion, creation of law cannot belong to the authority of a judiciary institution. The judiciary institution cannot take over the authority of law creation from the legislature. If this would happen, this would clearly be in violation of the legality principle. When the Court – to avoid such a violation – expresses in its consideration that the “legality principle is not applicable in criminal procedures” such statement seems to be devoid of a clear scientific basis, when no further argumentation is given.131 First, tying on into Hallevy’s view132 that the questions ‘of what’ supposedly have a wider and deeper impact than the questions ‘of how’ it can be argued in conformance with the argumentum a fortiori133(a minore ad maius)134 that the proposition that a violation of the legality principle cannot be accepted in material criminal law, should imply that it certainly could not be accepted in the context of criminal procedure. 135 Secondly, again tying on into Hallevy’s view that material criminal law is about determining criminal liability and criminal procedures about executing the defined criminal liability, it can be argued that the provisions of criminal procedures are more rigid than the ones of material criminal law. Procedural steps can be regulated in a definite manner and can thus lead to behaviour which aligns in a rather exact and measurable way with the formulated norms136. Rigidity is appropriate because procedural law has the function to formulate procedures which create equality between the parties in their effort to fight for rights regulated in material law. Only when its norms are formulated in a very precise way, procedural law can reach a high level of legal certainty and this implies that the legality principle is more applicable to procedural law than to material criminal law. Thirdly, in reference to Lon L. Fuller’s demonstration of the internal morality in law as eight principles of legality principles, it can be argued that the nature of the morality of law is primarily captured by the provisions of procedural law.137

6. Summary and conclusion

The court decision discussed in this article shows that the consideration of the judge concerning the ‘determining a suspect as an object of pre-trial hearing’ does not follow one of the methods of finding law as developed by the doctrine, neither the interpretation method (grammatical of historical), nor the requirements concerning the construction of new legal norms. The view that the legality principle is not applicable to criminal procedural law is not properly justified. Research on court judgments as regularly conducted by the Komisi Yudisial Republik Indonesia138 for the past ten years gives the impression that in general the judges in Indonesia are not so diligent in elaborating the available legal sources and refer rarely to judge-made law139 and its doctrines140. Scarcity of literature and limited access to alternative sources outside legislation can be seen as important obstacles in this respect.

The motivation of judges to elaborate such legal sources has also been restricted by the belief that it is not the duty of the judge to do so, but of the parties (prosecutor and lawyer; the plaintiff and defendant; applicant and respondent). The parties thus determine the legal basis in this view, while the judges are relatively passive.141 In an interview with an online medium monitoring the judgment, Arief Sidharta said that the judge had misunderstood his testimony at the trial.142 The difficulty seems to be that in the generally accepted opinion there is an incongruity: on the one hand it is believed that the judge should only use the method of interpretation, while at the same time it is believed that the judge should always give a decision, even when no applicable law is available. This generally accepted opinion prevents a good understanding of law finding as defended by Arief. Only a good understanding of law finding makes clear that it is unavoidable that judges create law, but that it is all important that this law-creation should by carefully and deeply connected with the existing legal sources: the doctrine, the history, the common parlance, the system and the societal values. As the article shows also an extensive interpretation should be argued legally and should fit in with other legal sources. Apparently, Judge Sarpin who adjudicated this case did not understand the distinction between finding law, which implies hard work of the judge, and the creation of law so to speak ‘ex nihilo’. It seems that the judge was not even aware of this distinction.

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  • Mertokusumo, Sudikno, “Sedjarah peradilan dan perundang-undangannja di Indonesia sedjak 1942 dan apakah kemanfaatannja bagi kita bangsa Indonesia.” (The history of the judiciary and its legislation in Indonesia since 1942 and what are its benefits for us Indonesians). Jajasan Badan Penerbit Gadjah Mada, 1972.
  • ———. Hukum Acara Perdata Indonesia (Indonesian Civil Procedural Law). Yogyakarta: : Liberty Yogyakarta, 1985.
  • ———. Mengenal hukum (suatu pengantar) (Getting to know the law (an introduction). Yogyakarta?: Liberty, 1986. http://opac.library.um.ac.id/oaipmh/../index.php?s_data=bp_buku&s_field=0&mod=b&cat=3&id=25149.
  • ———. ed. Bab-bab tentang penemuan hukum (Chapters on law finding). Yogyakarta: Citra Aditya Bakti?: Konsorsium Ilmu Hukum, Departemen Pendidikan dan Kebudayaan?: The Asia Foundation, 1993.
  • ———. “Pengantar Penemuan Hukum (Penataran Penemuan Hukum I dan II, Kerja Sama Indonesia dan Belanda, 1991)” (Introduction to Law Finding (Upgrading Law Finding I and II, Cooperation between Indonesia and the Netherlands, 1991)). In Bab-bab tentang penemuan hukum, 101–45. Yogyakarta: Citra Aditya Bakti?: Konsorsium Ilmu Hukum, Departemen Pendidikan dan Kebudayaan?: The Asia Foundation, 1993.
  • ———. “Evolusi dalam Hukum Perdata”(Indonesian translation of Pitlo’s Evolutie in het Privaatrecht). In Bab-bab tentang penemuan hukum, 101–45. Yogyakarta: Citra Aditya Bakti?: Konsorsium Ilmu Hukum, Departemen Pendidikan dan Kebudayaan?: The Asia Foundation, 1993.
  • ———. “Sistem Hukum Perdata Belanda” (Indonesian translation of Pitlo’s Het systeem van het Nederlandse privaatrecht) In Bab-bab tentang penemuan hukum, 101–45. Yogyakarta: Citra Aditya Bakti?: Konsorsium Ilmu Hukum, Departemen Pendidikan dan Kebudayaan?: The Asia Foundation, 1993.
  • ———. Penemuan hukum: sebuah pengantar (Law Finding: an introduction). Yogyakarta?: Liberty, 2004. http://opac.library.um.ac.id/oaipmh/../index.php?s_data=bp_buku&s_field=0&mod=b&cat=3&id=31046.
  • ———. Teori Hukum (Legal Theory). Yogyakarta: Universitas Atma Jaya, 2011.
  • Meuwissen, D. H. M. “Rechtswetenschap (   VI).” In Van Apeldoorn’s Inleiding tot de studie van het nederlandse recht, 18e ed.,    VI:443–56. Zwolle: W.E.J. Tjeenk Willink, 1985.
  • Moeljatno. Azas-azas hukum pidana. Jakarta: Bina Aksara, 1987.
  • Montesquieu, Charles de Secondat. De l’esprit des lois. Edited by Laurent Versini. Vol. I and II. Paris: Gallimard, 1995.
  • Nieuwenhuis, J.H. “Legitimatie En Heuristiek van Het Rechterlijk Oordeel.” Rechtsgeleerd Magazijn Themis, 1976, 494–515.
  • Pitlo, Adriaan. Evolutie in het privaatrecht. Groningen: Tjeenk Willink, 1972.
  • Pitlo, Adriaan, and P. H Gerver. Het systeem van het Nederlandse privaatrecht: naar het Nieuwe Burgerlijk Wetboek. Arnhem: Gouda Quint, 1990.
  • Pontier, Jannetje Adriana, and B. Arief Sidharta. Penemuan hukum = Rechtsvinding, 2008.
  • Rahardjo, Satjipto, Membedah Hukum Progresif. (Dissecting Progressive Law) Jakarta: Kompas, 2006.
  • ———. Biarkan hukum mengalir: catatan kritis tentang pergulatan manusia dan hukum. (Let the law flow: a critical note about human and legal struggles) Jakarta: Penerbit Buku Kompas, 2007.
  • ———. Lapisan-Lapisan Dalam Studi Hukum (Layers in the Study of Law) Bayumedia, 2008.
  • ———. Hukum Dan Perilaku: Hidup Baik Adalah Dasar Hukum Yang Baik. (Law and behavior: living well is the basis of good law) Jakarta: Penerbit Buku Kompas, 2009.
  • ———. Negara Hukum Yang Membahagiakan Rakyatnya. Cet. 2. (The rule of law that makes People Happy) Yogyakarta: Genta Pub, 2009.
  • Sadino, Oetarid. Pengantar ilmu hukum (Indonesian translation of L.J. van Apeldoorns Inleiding tot de studie van het Nederlandse recht ). Jakarta: Noordhoff, 1954.
  • Savellos, Elias E, and Richard F Galvin. Reasoning and the Law: The Elements. Belmont, CA: Wadsworth, 2001.
  • Scholten, Paul. “Afscheidsrede.” In Verzamelde Geschriften van Prof. Mr. Paul Scholten, Deel I, 493–505. Zwolle: Tjeenk Willink, 1949.
  • ———. Mr. C. Asser, Penuntun Dalam Mempelajari Hukum Perdata Belanda, Bagian Umum. Translated by Siti Soemantri Hartono. Yogyakarta: Gadjah Mada University Press, 1992.
  • ———. ‘1. Kenmerken van Recht.' In Verzamelde Geschriften van Prof. Mr. Paul Scholten, Deel I, 1–161. Zwolle: Tjeenk Willink, 1949.
  • ———. ‘13. Rechtsbeginselen’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, I:395–412. Zwolle: Tjeenk Willink, 1949.
  • ———. ‘15. De Structuur Der Rechtswetenschap’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, I:432–70. Zwolle: Tjeenk Willink, 1949.
  • ———. ‘17. Afscheidsrede’. InVerzamelde Geschriften van Prof. Mr. Paul Scholten, I:493–505. Zwolle: Tjeenk Willink, 1949.
  • ———. ‘51. Rede uitgesproken bij de opening van de Rechtshoogeschool te Batavia op 28 April 1924’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, deel II, 318–27. Zwolle: Tjeenk Willink, 1950.
  • Shidarta, Arief B., Refleksi tentang hukum: pengertian-pengertian dasar dalam teori hukum. (Indonesian translation of J.J.H. Bruggink’s Rechtsreflecties: grondbegrippen uit de rechtstheorie). Bandung: Citra Aditya Bakti, 1995.
  • ———.“Refleksi tentang struktur ilmu hukum: sebuah penelitian tentang fundasi kefilsafatan dan sifat keilmuan ilmu hukum sebagai landasan pengembangan ilmu hukum nasional Indonesia” (Reflections on the structure of legal science: a study of philosophical foundations and the scientific nature of legal science as a basis for the development of Indonesian national law). Mandar Maju, 1996.
  • ———.Moralitas profesi hukum: suatu tawaran kerangka berpikir. .(Legal Professional Morality) Refika Aditama, 2006.
  • ———. Meuwissen Tentang Pengembanan Hukum, Ilmu Hukum, Teori Hukum dan Filsafat Hukum (Indonesian translation of D.H.M. Meuwissen’s chapters    V,    VI and    VIII in the fully revised 18th edition of the Introduction to Law of Van Apeldoorn from 1985, preceded by a first chapter with Meuwissen’s article, “Vijf Stellingen over Rechtsfilosofie” (in English: five statements about philosophy of law; in Indonesian: Lima Dalil tentang Filsafat Hukum) taken from the 1979 “Ars Aequi” Law Journal with the theme “Een Beeld van Recht” (An Image of Law)). Bandung: Refika Aditama, 2007.
  • ———. “Struktur Ilmu Hukum, Indonesian Translation of Paul Scholten’s Structuur Der Rechtswetenschap.” DPSP preprint: https://paulscholten.eu/research/article/struktur-ilmu-hukum/
  • ———. “Teori Hukum Berstatus Ganda”(Double Status Legal Theory). In Pengembangan Hukum Teoretis: Refleksi Atas Konstelasi Disiplin Hukum (The Theoretical Functioning of Law: Reflection on the Constellation of Legal Disciplines). Bandung: Logos, 2014.
  • ———. “Disiplin Hukum: Tentang Hubungan Antara Ilmu Hukum, Teori Hukum, Dan Filsafat Hukum” (Legal Discipline: Concerning the Relationship between Legal Science, Legal Theory, and Legal Philosophy (State of the Arts). In Pengembangan Hukum Teoretis: Refleksi Atas Konstelasi Disiplin Hukum (“The Theoretical Functioning of Law: Reflection on the Constellation of Legal Disciplines”). Bandung: Logos, 2014.
  • ———. “Kekaburan Demarkasi antara ‘Rechtsvinding’ dan ‘Rechtsschepping’: Kajian terhadap Putusan No. 04/Pid.Prap/2015/PN. Jak.Sel (Obscurity in the demarcation between ‘Rechtsvinding’ and ‘Rechtsschepping’: Study of Decision No. 04 / Pid.Prap / 2015 / PN. Jak.Sel).” In Khairul Fahmi, Najmi, & Apriwal Gusti, eds., Menegakkan Hukum tanpa Melanggar Hukum: Eksaminasi Putusan Praperadilan Pengadilan Negeri Jakarta Selatan Nomor 04/Pid.Prap/2015/PN.Jkt.Sel. 2015 (Khairul Fahmi, Najmi, & Apriwal Gusti, eds., Enforcing the Law without Breaking the Law: Examination of Pre-Court Decision of the South Jakarta District Court Number 04 / Pid.Prap / 2015 / PN.Jkt.Sel. 2015), 56-73. Jakarta: RajaGrafindo Persada, n.d.
  • ———. Ilmu hukum Indonesia: upaya pengembangan ilmu hukum sistematik yang responsif terhadap perubahan masyarakat (Indonesian legal science: efforts to develop systematic legal science that is responsive to changes in society). 2e revised. Bandung: Unpar Press, 2016.
  • Sidharta, Arief, and Gunarsa, Aep. Pengantar logika: sebuah langkah pertama pengenalan medan telaah (Introduction to logic: a first step in introducing the study field)). Bandung: Refika Aditama, 2010.
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  • ———.Shidarta, Anthon F. Susanto, Joko Privono, and Efa Laela Fakhriah. Kualitas Hakim Dalam Putusan (The Quality of Judges in Decisions). Jakarta: Komisi Yudisial, n.d.
  • Smith, Carel. “Het Normatieve Karakter van de Rechtswetenschap: Recht Als Oordeel (The Normative Character of the Science of Law: Law as Judgment).” Netherlands Journal of Legal Philosophy 3 (2009): 202–25.
  • Soeteman, Arend. “Wetenschappelijke rechtsgeleerdheid (Scientific Jurisprudence).” Netherlands Journal of Legal Philosophy 38, no. 3 (2009): 226–35.
  • Susanto, Anthon F. “‘Dialog Tentang Keilmiahan Ilmu Hukum’ (A Dialogue on The Scientification of Legal Science).” In Pengembangan Hukum Teoretis: Refleksi Atas Konstelasi Disiplin Hukum (“The Theoretical Functioning of Law: Reflection on the Constellation of Legal Disciplines”). Bandung: Logos, 2014.
  • Visser ’t Hooft, Hendrik Philip. Filosofie van de rechtswetenschap. Leiden: M. Nijhoff, 1988.
  • Vranken, J.B.M. “Wetgeving en Rechtspraak (   VII).” In Van Apeldoorn’s Inleiding tot de studie van het nederlandse recht, 18e ed., 443–56. Zwolle: W.E.J. Tjeenk Willink, 1985.
  • Wiarda, G. J. Drie typen van rechtsvinding. Zwolle: Tjeenk Willink, 1963.

Glossary

English - Dutch

  • applying law. “rechtstoepassing,”.
  • creating law. “rechtsschepping,” or “rechtsvorming”.
  • finding law, law finding. “rechtsvinding,”.
  • legal principles. “rechtsbeginselen,”.
  • refinement of law. “rechtsverfijning,”.
  • unlawful act. “onrechtmatige daad,”.

English - Indonesian

  • judgemade law. “yurisprudensi,”.
  • Constitutional Court. “Mahkamah Konstitusi,”.
  • District Court. “Pengadilan Negeri”.
  • judicial review. “peninjauan kembali”.
  • pre-trail hearing. “pemeriksaan pendahuluan”.
  • Supreme Court “Mahkamah Agung”.
  • waiting period. “iddah,Cases
  • Pengadilan Negeri (District Court) of South Jakarta, 04/Pid.Prap/2015/PN.Jak.Sel.
  • Mahkamah Konstitusi (Constitutional Court). No 47/81/PHPU.A-VII/2009 .

Legislation

  • Code of Criminal Procedures. Kitab Undang Undang Hukum Acara Pidana (KUHAP).
  • Constitution of 1945. Oendang Dasar Negara Republik Indonesia
  • Law concerning Judiciary Power. Undang-Undang Nomor 48/tahun 2009 tentang Kekuasaan Kehakiman.

Indonesian Institutions

  • Komisi Pemberantasan Korupsi or KPK. “Corruption Eradication Commisssion,”.
  • Komisi Yudisial Republik Indonesia. “Judicial Commission of Indonesia,”
  • Noken. “A System of Representation in Which One Person Votes for and on Behalf of Many Residents,”.

Thesaurus

  • Argumentum per Analogiam: analogical reasoning.
  • Argumentum a Contrario: appeal from the contrary: Denotes any proposition that is argued to be correct because it is not disproven by a certain case. It is the opposite of the analogy.
  • Argumentum a Fortiori (a Minore ad Maius or a Maiore ad Minus): to reason from the smaller to the greater or from the greater to the smaller.
  • In Causa Ius Esse Positum: the law is to be found in the features of the case.
  • Noken: A System of Representation acknowledged in Indonesia in which one person votes for and on behalf of many residents.
  • Normgedrag: particular prescriptions for behaviour, which are formulated in certain positive legal norms.
  • Nulla Poena Sine Praevia Lege: no punishment if there exists no previous law.
  • Pemeriksaan Pendahuluan: pre-trial hearing, a way in which also lower courts can play a role in judge-made law.

_______________

1 Scholten, “Rede uitgesproken bij de opening van de Rechtshoogeschool te Batavia op 28 April 1924.”

2 “rechtsvinding.”

3 Huppes-Cluysenaer et al., ‘General Method’.

4 “rechtsvinding.”

5 Wiarda, Drie typen van rechtsvinding.(Three types of finding law)

6 Satjipto Rahardjo's thoughts on progressive law can be derived from the short articles he wrote in the Kompas daily. These articles were later published in several books. Some of the books that stand out are Membedah Hukum Progresif. (Dissecting Progressive Law), Biarkan hukum mengalir: catatan kritis tentang pergulatan manusia dan hukum. (Let the law flow: a critical note about human and legal struggles), Negara Hukum Yang Membahagiakan Rakyatnya. (The rule of law that makes People Happy), Lapisan-Lapisan Dalam Studi Hukum.(Layers in the Study of Law), and Hukum Dan Perilaku: Hidup Baik Adalah Dasar Hukum Yang Baik. (Law and behavior: living well is the basis of good law 2009).

7 “rechtsvinding.”

8 Moeljatno, Azas-azas hukum pidana. (Principles of Criminal Law) p. 28-29. Before being published for the first time in 1983, the draft had been widely circulated limitedly among students of Gadjah Mada University. Scholten’s thought on this issue can be found in “General Method of Private Law. English Translation of the First Chapter of Paul Scholten’s Algemeen Deel.” 278-281.

9 See https://paulscholten.eu/ad-ned-ind/ for a Re-Issue of S.S. Hartono’s Indonesian translation of Paul Scholten’s Algemeen Deel: Penunutun dalam Mempelajari Hukum Pardata Belanda: Bagian Umum. When this Indonesian translation of Scholten's book "Algemeen Deel" was published in 1992, the author of this article was studying at Gadjah Mada University, Yogyakarta, where both Siti Soemarti Hartono (translator) and Sudikno Mertokusumo (editor) taught. In a lecture, Sudikno said that even though he was indicated as editor of the translation by Gadjah Mada University Press, he had not been too intensely involved. Siti Soemarti Hartono deserves to be appreciated for her success in translating Scholten's work into Indonesian. Even before this book was published, her short writings on Scholten were used as reading material in the postgraduate program of Gadjah Mada University, among others “Penemuan Hukum Dari Montesquieu Sampai Paul Scholten .”(Law Finding, from Montesquieu to Paul Scholten).”13-21.

10 Mertokusumo, “Sedjarah peradilan dan perundang-undangannja di Indonesia sedjak 1942 dan apakah kemanfaatannja bagi kita bangsa Indonesia. (The history of the judiciary and its legislation in Indonesia since 1942 and what are its benefits for us Indonesians).”

11 Sidharta, “Refleksi tentang struktur ilmu hukum: sebuah penelitian tentang fundasi kefilsafatan dan sifat keilmuan ilmu hukum sebagai landasan pengembangan ilmu hukum nasional Indonesia (Reflections on the structure of legal science: a study of philosophical foundations and the scientific nature of legal science as a basis for the development of Indonesian national law).”

12 In an interview with the author in July 2015, Bernard stated that he does not mind if his dissertation is regarded as Scholten’s thought adapted to the atmosphere of Indonesian law.

13 “rechtsvinding.”

14De rechtsvinding is niet een eenvoudig werk,” Scholten, ‘15. De Structuur Der Rechtswetenschap’., 456. (block 42)

15 “rechtstoepassing.”

16 “rechtsvorming.”

17 See also Scholten, ‘15. De Structuur Der Rechtswetenschap’., 458. (block 44)

18 “rechtsverfijning.”

19 appeal from the contrary, “Argumentum a Contrario.”; Denotes any proposition that is argued to be correct because it is not disproven by a certain case. It is the opposite of the analogy.

20 'General Method', 209-213.

21 The law is to be found in the features of the case, “In Causa Ius Esse Positum.”

22 'General Method' 299 and 465.

23 An example of the latter can be found in General Method 516. It is clear from this fragment that Scholten rejects the psychological basis.

24 'General Method' 261 and 507.

25 “Rechtsbeginselen.” 405: two x two contrary principles and one overarching fifth principle: “It is in the first place the principle of the personality versus the one of the community. In the second place the principle of equality versus the one of authority. And finally – or in the beginning – that of the separation of good and bad, in which all law is rooted.” (My (S) English translation of: “Het is in de eerste plaats het beginsel der persoonlijkheid en daartegenover dat der gemeenschap. In de tweede plaats het beginsel van de gelijkheid tegenover dat van het gezag. En ten slotte—of in den beginne—dat van de scheiding van goed en kwaad, waarin alle recht wortelt.”

26 Scholten, ‘13. Rechtsbeginselen’., 404-5.

27 This scheme is my interpretation of Scholten's explanation of the five universal principles in law. I first published this scheme in my book entitled Moralitas profesi hukum: suatu tawaran kerangka berpikir (Legal Professional Morality).

28 ‘15. De Structuur Der Rechtswetenschap’., 467. (block 60)

29 Sidharta, Meuwissen Tentang Pengembanan Hukum, Ilmu Hukum, Teori Hukum dan Filsafat Hukum (Indonesian translation of D.H.M. Meuwissen’s chapters    V (Rechtstheorie -Theory of Law);    VI (Rechtswetenschap -Science of Law);    VIII (Rechtsfilosofie -Philosophy of Law) in the fully revised 18th edition of the Introduction to Law of Van Apeldoorn from 1985, preceded by a first chapter with Meuwissen’s article, “Vijf Stellingen over Rechtsfilosofie” (in English: five statements about philosophy of law; in Indonesian: Lima Dalil tentang Filsafat Hukum) taken from the 1979 “Ars Aequi” Law Journal with the theme “Een Beeld van Recht” (An Image of Law)). Oetarid Sadino had already made an Indonesian translation of the 12th edition of this book in 1954: Sadino, Pengantar ilmu hukum (Indonesian translation of L.J. van Apeldoorns Inleiding tot de studie van het Nederlandse recht ). Further Sidharta, Refleksi tentang hukum: pengertian-pengertian dasar dalam teori hukum. (Indonesian translation of J.J.H. Bruggink’s Rechtsreflecties: grondbegrippen uit de rechtstheorie).

30 Compare the following texts which were all translated into Indonesian by Sidharta: “De Structuur Der Rechtswetenschap.” 432 and 467; Meuwissen, “Rechtswetenschap (   VI).” § 3, 443-4. speaks of a science sui generis, which cannot be compared to any other science and combines characteristics of different sciences.; Bruggink, Rechtsreflecties: grondbegrippen uit de rechtstheorie. § 8.2.2. speaks of science in a restricted sense.

31 As elaborated in “De Structuur Der Rechtswetenschap.”

32 Vranken, “Wetgeving en Rechtspraak (   VII).” §5. Bruggink, Rechtsreflecties: grondbegrippen uit de rechtstheorie. § 8.2.3. speaks of a new branch of legal theory, which - different from the restricted legal theory which studies universal legal concepts and to which Scholten referred – focusses on the method of the different juridical activities.

33 The author of this article has had attended intensely Sudikno Mertokusumo’s lectures while being a student of postgraduate degree at Gadjah Mada University in 2001-2004.

34 Mertokusumo, “Sedjarah peradilan dan perundang-undangannja di Indonesia sedjak 1942 dan apakah kemanfaatannja bagi kita bangsa Indonesia. (The history of the judiciary and its legislation in Indonesia since 1942 and what are its benefits for us Indonesians).”

35 Scholten, ‘17. Afscheidsrede’.

36 My translation of: “Maar de man die wetenschap om de wetenschap zoekt verschrompelt

37 Mertokusumo, Hukum Acara Perdata Indonesia (Indonesian Civil Procedural Law).

38 Mertokusumo, Mengenal hukum (suatu pengantar) (Getting to know the law (an introduction).

39 Mertokusumo, Penemuan hukum: sebuah pengantar (Law Finding: an introduction).

40 Mertokusumo, Bab-bab tentang penemuan hukum (Chapters on law finding).

41 Mertokusumo, “Pengantar Penemuan Hukum (Penataran Penemuan Hukum I dan II, Kerja Sama Indonesia dan Belanda, 1991)” (Introduction to Law Finding (Upgrading Law Finding I and II, Cooperation between Indonesia and the Netherlands, 1991)). The Indonesian translations of Pitlo’s texts had been made by Sudikno for an event of cooperation on the issue of the discovery of law between Indonesia and the Netherlands in 1991, June 24-28 and July 1-5.

42 Pitlo and Gerver, Het systeem van het Nederlandse privaatrecht.

43 Mertokusumo, “Sistem Hukum Perdata Belanda”(Indonesian translation of Pitlo’s Het systeem van het Nederlandse privaatrecht).

44 Pitlo, Evolutie in het privaatrecht.

45 Mertokusumo, “Evolusi dalam Hukum Perdata” (Indonesian translation of Pitlo’s Evolutie in het Privaatrecht).

46 Mertokusumo, Bab-bab tentang penemuan hukum (Chapters on law finding), 45-46; 70-72.

47 Mertokusumo, Mengenal hukum (suatu pengantar) (Getting to know the law (an introduction).

48 Scholten, Algemeen Deel. and Scholten, Verzamelde Geschriften van Prof. Mr. Paul Scholten I.

49 Algra, Rechtsaanvang.

50 Sudikno refers in two books, (Mengenal hukum (suatu pengantar) (Getting to know the law (an introduction). and Teori Hukum (Legal Theory). See for further bibliographic details of this dictation: hdc.vu.nl/nl/Images/016_Eikema_Hommes_HJ_van_tcm215-773026.pdf.

51 Nieuwenhuis, “Legitimatie En Heuristiek van Het Rechterlijk Oordeel.”

52 Hattum, Vrijheid en gebondenheid van den strafrechter.

53 Wiarda, Drie typen van rechtsvinding.

54 Bab-bab tentang penemuan hukum (Chapters on law finding) and Mengenal hukum (suatu pengantar) (Getting to know the law (an introduction).

55 Mertokusumo, Mengenal hukum (suatu pengantar) (Getting to know the law (an introduction).

56 “rechtsbeginselen.”

57 'General Method' § 17.

58 appeal from the contrary, “Argumentum a Contrario.”

59 waiting period, “Iddah.”

60 “rechtsverfijning.”

61 “onrechtmatige daad.”

62 In his dissertation Sudikno wrote: "Menurut Mr. Paul Scholten yang sepenuhnya disetujui oleh penulis, maka sifat terikatnya pada preseden, yang oleh teori hukum dianggap ciri khas dari peradilan Anglo Saks, pada hakikatnya adalah sifat setiap peradilan" Mertokusumo, “Sedjarah peradilan dan perundang-undangannja di Indonesia sedjak 1942 dan apakah kemanfaatannja bagi kita bangsa Indonesia. (The history of the judiciary and its legislation in Indonesia since 1942 and what are its benefits for us Indonesians).” 3. (According to Mr. Paul Scholten, who in this is fully approved by the author, the binding to precedents, which legal theory considers to be the hallmark of Anglosaxon's judiciary, is essentially the nature of every court, trans. MTA). It seems clear that these words are taken from Scholten's statement: "De gebondenheid aan het precedent, die de rechtstheorie als een typeerend Engelsch, zelfs liever Anglo-Saksisch verschijnsel beschouwt, ligt in den aard van iedere rechtspraak. Scholten, “Kenmerken van Recht.” 22.

63 Wiarda, Drie typen van rechtsvinding.

64 Montesquieu, De l’esprit des lois.

65 'General Method', 15.

66 Penemuan hukum: sebuah pengantar (Law Finding: an introduction). 67-72.

67 Idem. 63-64.

68 Satjipto Rahardjo introduced the term "progressive law". According to him, law is not a definitive institution, but is determined by its ability to serve human interests. Therefore, law enforcers must have the courage to break through the text's rigidity of the rules. The measure is if the text hurts people's sense of justice. Unfortunately, Satjipto never gave an indicaton of how to measure people's sense of justice. See: Biarkan hukum mengalir: catatan kritis tentang pergulatan manusia dan hukum.(Let the law flow: a critical note about human and legal struggles, 2007), x.

69 Ternyata kemudian pandangan typis legalistic atau heteronom dari peradilan ini tidak dapat dipertahankan, karena sejak kurang lebih 1850 perhatian ditujukan kepada peran penemuan hukum yang mandiri. Hakim tidak dipandang sebagai corong undang-undang, tetapi sebagai pembentuk hukum yang secara mandiri memberi bentuk kepada isi undang-undang dan menyesuasikannya dengan kebutuhan-kebutuhan. Pandangan ini dikenal sebagai pandangan materiil yuridis atau otonom…. Tokoh pandangan ini antara lain ialah Oskar Bülow, Eugen Erlich, François Geny, Oliver Wendell Holmes, Jerome Frank, dan Paul Scholten. Menurut pandangan ini pelaksanaan hukum oleh hakim bukanlah semata-mata hanyalah masalah logika murni dan penggunaan ratio yang tepat, tetapi lebih merupakan masalah pemberian bentuk yuridis pada asas-asas hukum materiil yang menurut sifatnya tidak logis dan tidak mendasarkan pada pikiran yang abstrak, tetapi lebih-lebih pada pengalaman dan penilaian yuridis. Juga dikemukakan bahwa undang-undang itu tidak mungkin lengkap. Undang-undang hanyalah merupakan suatu tahap tertentu dalam proses pembentukan hukum dan bahwa undang-undang wajib mencari pelengakpnya dalam praktek hukum yang teratur dari hakim (yurisprudensi) di mana asas yang merupakan dasar undang-undang dijabarkan lebih lanjut dan dikonkretisasi, diisi dan diperhalus dengan asas-asas baru. Pandangan ini yang telah dikenal sejak Etienne Portalis (penyusun Code Civil 1804) dewasa ini banyak dianut. See Mertokusumo, “Sedjarah peradilan dan perundang-undangannja di Indonesia sedjak 1942 dan apakah kemanfaatannja bagi kita bangsa Indonesia. (The history of the judiciary and its legislation in Indonesia since 1942 and what are its benefits for us Indonesians).” 55.

70 Memang tepatlah kiranya karena merupakan sifat pembentukan hukum dalam tata hukum modern yang memaksa ke arah pandangan dinamis penemuan hukum oleh hakim atau pejabat-pejabat lainnya yang dibebani tugas dengan pelaksanaan undang-undang. Oleh karena itu diakui bahwa dalam hal kekosongan atau ketidakjelasan undang-undang hakim mempunyai tugas sendiri, yaitu memberi pemecahan dengan penafsiran undang-undang. Meskipun orang makin lama meninggalkan pandanan legistis atau positivisme undang-undang, tetapi pangkal toalk penemuan hukum adalah sistem: semua hukum terdapat dalam undang-undang dan hanya kalau ada kekosongan atau ketidakjelasan dalam undang-undang saja maka hakim boleh menafsirkan. Dalam cara pemecahan semacam ini sistem menjadi titik tolak (systeemdenken). Idem 55-56

71 Mertokusumo, Teori Hukum (Legal Theory).

72 Bos, “Over methoden van begripsvorming in het recht.”

73 Sidharta, “Struktur Ilmu Hukum, Indonesian Translation of Paul Scholten’s Structuur Der Rechtswetenschap.” This manuscript has not been published officially. It has circulated between lecturers of Parahyangan Catholic University. Sidharta has sent the manuscript to DPSP to publish it. It can now be found on https://paulscholten.eu/cp/wp-content/uploads/2013/09/Judul-Struktur-Ilmu-Hukum-geheel.pdf.

74 Sidharta, Refleksi tentang hukum: pengertian-pengertian dasar dalam teori hukum. (Indonesian translation of J.J.H. Bruggink’s Rechtsreflecties: grondbegrippen uit de rechtstheorie).

75 The earlier version of Van Apeldoorn’s Introduction had been translated already by Oetarid Sadino. See Sadino, Pengantar ilmu hukum (Indonesian translation of L.J. van Apeldoorns Inleiding tot de studie van het Nederlandse recht ).

76 Sidharta, Meuwissen Tentang Pengembanan Hukum, Ilmu Hukum, Teori Hukum dan Filsafat Hukum (Indonesian translation of D.H.M. Meuwissen’s chapters    V (Rechtstheorie -Theory of Law);    VI (Rechtswetenschap -Science of Law);    VIII (Rechtsfilosofie -Philosophy of Law) in the fully revised 18th edition of the Introduction to Law of Van Apeldoorn from 1985, preceded by a first chapter with Meuwissen’s article, “Vijf Stellingen over Rechtsfilosofie” (in English: five statements about philosophy of law; in Indonesian: Lima Dalil tentang Filsafat Hukum) taken from the 1979 “Ars Aequi” Law Journal with the theme “Een Beeld van Recht” (An Image of Law)). The title can be translated in English as: Meuwissen regarding the Functioning of Law, Legal Science, Theory of Law, and Philosophy of Law. A fourth theoretical chapter in the 18th edition of Van Apeldoorn’s Introduction to Law - Chapter    VII "Wetgeving en Rechspraak" - was written by J.B.M. Vranken and consequently not part of Sidharta’s translation of Meuwissen’s work.

77 Smith, “Het Normatieve Karakter van de Rechtswetenschap: Recht Als Oordeel” (The Normative Character of the Science of Law: Law as Judgment).; Soeteman, “Wetenschappelijke rechtsgeleerdheid” (Scientific Jurisprudence).; Arief Sidharta translated Carel Smith's work in 2010 in the form of a monograph for limited circulation in the Faculty of Law, Parahyangan Catholic University, Bandung with the title: “Ilmu Hukum yang Ilmiah: Komentar Terhadap Prasaran Carl Smith tentang Normatif Ilmu Hukum” (Scientific Legal Studies: comment on Carl Smith's paper on Normative Legal Studies).

78 Visser ’t Hooft, Filosofie van de rechtswetenschap. The manuscript was translated into Indonesian by Arief Sidharta as: "Filsafat Ilmu Hukum" in 2009. Also this manuscript had a limited distribution at the Faculty of Law, Parahyangan Catholic University Bandung.

79 Pontier and Sidharta, Penemuan hukum = Rechtsvinding.

80 Kusumaatmadja and Sidharta, Pengantar ilmu hukum: suatu pengenalan pertama ruang lingkup berlakunya ilmu hukum (Introduction to jurisprudence: a first introduction to the scope of the application of jurisprudence).

81 Sidharta, “Refleksi tentang struktur ilmu hukum: sebuah penelitian tentang fundasi kefilsafatan dan sifat keilmuan ilmu hukum sebagai landasan pengembangan ilmu hukum nasional Indonesia (Reflections on the structure of legal science: a study of philosophical foundations and the scientific nature of legal science as a basis for the development of Indonesian national law).”

82 Sidharta and Gunarsa, Pengantar logika: sebuah langkah pertama pengenalan medan telaah (Introduction to logic: a first step in introducing the study field)).

83 Sidharta, Ilmu hukum Indonesia: upaya pengembangan ilmu hukum sistematik yang responsif terhadap perubahan masyarakat (Indonesian legal science: efforts to develop systematic legal science that is responsive to changes in society). The book contains revised papers that were presented in various seminars.

84 Shidarta and Susanto, Pengembangan Hukum Teoretis: Refleksi Atas Konstelasi Disiplin Hukum (The Theoretical Functioning of Law: Reflection on the Constellation of Legal Disciplines). First chapter: Sidharta, “Disiplin Hukum: Tentang Hubungan Antara Ilmu Hukum, Teori Hukum, Dan Filsafat Hukum” (Legal Discipline: Concerning the Relationship between Legal Science, Legal Theory, and Legal Philosophy (State of the Arts).; Second chapter: Susanto, “Dialog Tentang Keilmiahan Ilmu Hukum” (A Dialogue on The Scientification of Legal Science).; Third chapter: Shidarta, “Teori Hukum Berstatus Ganda” (Double Status Legal Theory).

85 Essay written in 1942 as lecture for the Royal Dutch Academy of Science, of which Paul Scholten was a member and included in Scholten, Verzamelde Geschriften van Prof. Mr. Paul Scholten I. 15.

86 “Refleksi tentang struktur ilmu hukum: sebuah penelitian tentang fundasi kefilsafatan dan sifat keilmuan ilmu hukum sebagai landasan pengembangan ilmu hukum nasional Indonesia” (Reflections on the structure of legal science: a study of philosophical foundations and the scientific nature of legal science as a basis for the development of Indonesian national law).

87 Ilmu hukum Indonesia: upaya pengembangan ilmu hukum sistematik yang responsif terhadap perubahan masyarakat (Indonesian legal science: efforts to develop systematic legal science that is responsive to changes in society).

88 “Legitimatie En Heuristiek van Het Rechterlijk Oordeel.”

89 Sidharta, “Refleksi tentang struktur ilmu hukum: sebuah penelitian tentang fundasi kefilsafatan dan sifat keilmuan ilmu hukum sebagai landasan pengembangan ilmu hukum nasional Indonesia” (Reflections on the structure of legal science: a study of philosophical foundations and the scientific nature of legal science as a basis for the development of Indonesian national law). 170.; Sidharta, Ilmu hukum Indonesia: upaya pengembangan ilmu hukum sistematik yang responsif terhadap perubahan masyarakat (Indonesian legal science: efforts to develop systematic legal science that is responsive to changes in society). 117.

90 In this respect Paul Scholten view is very closely connected with the hermeneutic view. See specifically General Method, 467.

91 General Method, 490-492.

92 General Method, 494, 506-7.

93 Kusumaatmadja and Sidharta, Pengantar ilmu hukum: suatu pengenalan pertama ruang lingkup berlakunya ilmu hukum (Introduction to jurisprudence: a first introduction to the scope of the application of jurisprudence). The author has asked Arief Sidharta how much he contributed in preparing the book, in comparison with Mochar Kusumaatmadja. According to him, the book reflected clearly Mochtar Kusumaatmadja’s point of view and was an elaboration of the materials produced by Kusumaatmadja during his time as a lecturer at Parahyangan Catholic University.

94 Kusumaatmadja and Sidharta. pp. 69-70.

95 Kusumaatmadja and Sidharta. First footnote in the Introduction.

96 “De Structuur Der Rechtswetenschap.”

97 “General Method of Private Law. English Translation of the First Chapter of Paul Scholten’s Algemeen Deel.”

98 Undang-Undang Nomor 48/tahun 2009 tentang Kekuasaan Kehakiman. Article 5 paragraph (1) of this law re-affirms this traditional view by stating: "Hakim dan hakim konstitusi wajib menggali, mengikuti, dan memahami nilai-nilai hukum dan rasa keadilan yang hidup dalam masyarakat" (Judges and constitutional judges must explore, follow, and understand the legal values ??and sense of justice existing in society).

99 For example, the procedure for voting in general elections for indigenous people in Papua Province, may be carried out through a system of representation, called noken “A System of Representation in Which One Person Votes for and on Behalf of Many Residents.” This system is contrary to the general election law. However, the Constitutional Court in its decision No 47/81/PHPU.A-VII/2009. stated that the noken system does not conflict with the law because it is in accordance with the culture that exists in the indigenous Papuan community.

100 There are two peaks of justice in Indonesia, namely the Mahkamah Agung, “Supreme Court.” and the Mahkamah Konstitusi, “Constitutional Court.” Both handle cases from all areas of judicial jurisdiction. The Supreme Court also has the authority to decide on a request for judicial review of regulations at the level below the statutory law. The Constitutional Court) has jurisdiction to review the statutory law and to decide on disputes over authority among state institutions. It is also authorized to resolve disputes related to the results of the general election.

101 Apart from the Supreme Court, there are quite a number of books entitled "yurisprudensi" published by commercial publishers. One of the latest publications is a seven-volume book published by PT Pilar Yuris Ultima containing 860 decisions. However, the Supreme Court itself has difficulty determining which decisions can be considered "yurisprudensi". In 2018, a working group was formed headed by Justice Prof. Dr. Takdir Rahmadi to provide an assessment of the feasibility of any potential "yurisprudensi". Unfortunately, the work of this team has not been published.

102 See: https://putusan.mahkamahagung.go.id

103 “yurisprudensi.”

104 “ pemeriksaan pendahuluan”

105 “peninjauan kembali”

106 Pengadilan Negeri (district court) of South Jakarta, 04/Pid.Prap/2015/PN.Jak.Sel.

107 See Sidharta, “Kekaburan Demarkasi antara ‘Rechtsvinding’ dan ‘Rechtsschepping’: Kajian terhadap Putusan No. 04/Pid.Prap/2015/PN. Jak.Sel ” (Obscurity Demarcation between ‘Rechtsvinding’ and ‘Rechtsschepping’: Study of Decision No. 04 / Pid.Prap / 2015 / PN. Jak.Sel). Page 226, where the view that the principle of legality as referred to in Article 1 paragraph (1) of the Criminal Code only applies to the application of Material Criminal Law is attributed to Criminal Law expert Bernard Arief Sidharta; Page 240: where reference was made to the Criminal Law expert, Bernard Arief Sidharta regarding the view that the determination of the Suspect was the result of an investigation.

108 “Corruption Eradication Commisssion.” The Komisi Pemberantasan Korupsi or KPK.was established in 2002. The Komisi Pemberantasan Korupsi or KPK, “Corruption Eradication Commisssion” was established in 2002. It is an independent state institution, established to prevent as well as eradicate corruption in Indonesia. Although it was designed as an ad-hoc body, currently it is considered the most respected legal institution in this country.

109 Kitab Undang Undang Hukum Acara Pidana (KUHAP).

110 Page 202 of the judgment. "Menimbang, bahwa dari rumusan pengertian pasal 1 angka 10 jo. pasal 77 jo. pasal 82 ayat (1) jo. pasal 95 ayat (1) dan ayat (2) KUHAP tersebut dapat diketahui dengan jelas bahwa “sah atau tidaknya Penetapan Tersangka” tidak termasuk objek praperadilan, karena hal itu tidak diatur."

111 Undang-Undang Nomor 48/tahun 2009 tentang Kekuasaan Kehakiman. The prohibition for judges to refuse to try had been already long established in Indonesian law. Article 10 paragraph (1) of Law No. 48 of 2009 reaffirmed this provision by stating that. "Courts are prohibited from refusing to examine, hear, and decide a case filed on the grounds that the law does not exist or is unclear; they are obliged to examine and try it." (Pengadilan dilarang menolak untuk memeriksa, mengadili, dan memutus suatu perkara yang diajukan dengan dalih bahwa hukum tidak ada atau kurang jelas, melainkan wajib untuk memeriksa dan mengadilinya”).

112 Menimbang bahwa kewenangan hakim untuk menetapkan hukum yang semula hukumnya tidak ada menjadi ada, dilakukan dengan menggunakan metode penemuan hukum (recht finding), yang jika dikaji secara ilmiah (keilmuan) dan secara yuridis harus dapat dipertanggungjawabkan. Menimbang, bahwa kewenangan hakim untuk menetapkan hukum yang semula hukumnya tidak jelas menjadi jelas dilakukan dengan menggunakan dan menerapkan metode penafsiran (interpretasi).

See the court decision, p. 203.

113 “rechtsschepping.”

114 See the court decision, p. 202.

115 … harus dipahami arti dan makna ‘tindakan upaya paksa’ secara benar, bahwa segala tindakan penyidik dalam proses penyidikan dan segala tindakan penuntut umum dalam proses penuntutan adalah merupakan tindakan upaya paksa karena telah menempatkan atau menggunakan label pro yustisia pada setiap tindakan … bahwa segala tindakan penyidik dalam proses penyidikan dann segala tindakan penuntut umum dalam proses penuntutan yang belum diatur dalam Pasal 77 jo. Pasal 82 ayat (1) jo. Pasal 95 ayat (1) dan ayat (2) KUHAP ditetpakn menjadi objek praperadilan dan lem

baga hukum yang berwenang menguji keasahan segala tindakan penyidik dalamproses penyidikan dan segala tindakan penuntut umum dalam proses penuntutan adalah lembaga praperadilan…. bahwa terkait langsung dengan permohonan pemohon, karena ‘penetapan tersangka’ merupakan bagian dari rangkaian tindakan penyidik dalam proses penyidikan, maka lembaga hukum yang berwenang menguji dan menilai kabasahan ‘penetapan tersangka’ adalah lembaga praperadilan.

See the court decision, pp. 204-205.

116 no punishment if there exists no previous law, “Nulla Poena Sine Praevia Lege.”

117 See the court decision, p. 205.

118 analogical reasoning, “Argumentum per Analogiam.”

119 “rechtsschepping.”

120 “normgedrag”

121 Pengadilan negeri berwenang untuk memeriksa dan memutus, sesuai dengan ketentuan yang diatur dalam undang-undang ini tentang:

(a) sah atau tidaknya penangkapan, penahanan, penghentian penyidikan, atau penghentian penuntutan;

(b) ganti kerugian dan atau rehabilitasi bagi seorang yang perkara pidananya dihentikan pada tingkat penyidikan atau penuntutan.

122 - 1. Tersangka, terdakwa atau terpidana berhak menuntut ganti kerugian karena ditangkap, ditahan, dituntut, dan diadili atau dikenakan tindakan lain, tanpa alasan yang berdasarkan undang-undang atau karena kekeliruan mengenai orangnya atau hukum yang ditetapkan. - 2. Tuntutan ganti kerugian oleh tersangka atau ahli warisnya atas penangkapan atau penahanan serta tindakan lain tanpa alasan yang berdasarkan undang-undang atau karena kekeliruan mengenai orang atau hukum yang diterapkan sebagaimana dimaksud dalam ayat (1) yang perkaranya tidak diajukan ke pengadilan negeri, diputus di sidang pengadilan sebagaimana dimaksud dalam Pasal 77.

123 We can find the meaning of the term "other actions" in the elucidation of Article 95 paragraph (1). Article 1 point 10 provides a definition of "pre-trial".

124 (c.) Bahwa dengan ditetapkannya seseorang menjadi Tersangka in casu Pemohon tanpa melalui prosedur hukum yang benar sebagaimana ditentukan dalam KUHAP, maka nama baik dan kebebasan seseorang in casu Pemohon telah dirampas. (d.) Tindakan lain yang dilakukan Termohon menetapkan Pemohon sebagai Tersangka adalah cacat yuridis, tindakan Termohon tersebut masih diikuti tindakan lain berupa pencekalan, adalah merupakan pembunuhan karakter yang berdampak tercemarnya nama baik Pemohon, keluarga, Institusi Polri sebagai lembaga Negara yang sah menurut Pasal 30 UUD Negara RI 1945. See the court decision pp. 7-8.

125 See the court decision pp. 5, 43-46. According to Indiryanto Seno Adji, the book of criminal law applies a pre-trial institution to protect a person in the preliminary examination by police and / or attorney's actions which violate the law and harm someone.

126 Savellos and Galvin, Reasoning and the Law., 49-50.

127 General Method 299

128 Kitab Undang Undang Hukum Acara Pidana (KUHAP). "Penyidikan adalah serangkaian tindakan penyidik dalam hal dan menurut cara yang diatur dalam undang-undang ini untuk mencari serta mengumpulkan bukti yang dengan bukti itu membuat terang tentang tindak pidana yang terjadi dan guna menemukan tersangkanya."

129 For Scholten the next option would be analogy. (General Method, 243) For him analogy and extensive interpretation are more or less the same. (275) In his view there is creation of law involved in every application of law. That is exactly what he means with rechtsvinding. (298-9) With analogy the judge becomes aware of a legal principle which is more abstract than legal rules.(252) In criminal law the principle of legality is an important principle, but it is not the only one, according to Scholten. In criminal law also other principles than the principle of legality will unavoidably play a role. (278-81) Scholten deviates with his opinion from the general opinion, which clearly is the one held by the Dutch Supreme Court.

130 “rechtsschepping.”

131 See the decision p. 205.

132 Hallevy, Principle of Legality in Criminal Law.

133 from the smaller to the greater, “Argumentum a Fortiori (a Minore ad Maius).”

134 Aleksander Peczenik, On Law and Reason (Dordrecht: Kluwer Academic Publisher, 1989), p. 402.

135 Gabriel Hallevy, A Modern Treatise on the Principle of Legality in Criminal Law (New York: Springer, 2010), p. 50.

136 “normgedrag.”

137 Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969), p. 38-94.

138 “Judicial Commission of Indonesia.”: The Judicial Commission of Indonesia was established as a consequence of the third amendment to the Constitution of Indonesia ratified by the Indonesian People's Consultative Assembly on 9 November 2001.

139 “yurisprudensi.”

140 The Judicial Commission published all its research works from 2007 (40 judgments on human rights), 2008 (42 on human rights; plus 149 criminal cases and 59 civil cases), 2009 (105 on criminal), 2010 (100 on criminal), 2011 (152 on criminal and civil), 2012 (71 criminal and civil, each at district and high courts), 2013 (120 criminal and civil), 2014 (80 ‘problematic’ judgments due to public complaint and lodged to the Judicial Commission). On the basis of this collection of judgments it is possible to give a representative description of the average quality of judgments in Indonesia for the past ten years.

141 Shidarta et al., Kualitas Hakim Dalam Putusan (The Quality of Judges in Decisions).71-77.

142 See interview of Bernard Arief Sidharta with Sorgemagz on 18 February 2015, published on: http://www.sorgemagz.com/?p=5512#.VgMoa4faFG4.

Acknowledgements

Revised version of the keynote speech delivered at the Third Paul Scholten Symposium concerning New Perspectives on Law and Reality on 26-27 November 2015. I want to thank M. Termorshuizen-Arts for her corrections of the translation into English of the Indonesian quotations.

Reviews

Stijn van Huis

This contribution to “New perspectives on law and reality” describes how Paul Scholten’s concept of “finding law” (rechtsvinding) and the resulting scholarly debate in the Netherlands have influenced the works on law-finding of Indonesia’s foremost legal theorists. Subsequently the author uses the legal analysis of a high-profile case in which law finding was a central issue, in order to illustrate how today’s Indonesian judges (who are less connected to the colonial past) are losing the skills to apply law finding methods correctly. In the first part of the article, Shidarta meticulously compares and links concepts and methods of rechtsvinding developed by the Indonesian legal theorists Sudikno Mertokusumo and Bernard Arief Sidharta with the methods of law-finding developed by Scholten and Wiarda. He convincingly shows how Sudikno and Arief Sidharta, follow Wiarda ‘s view in emphasizing that law-finding by a judge is limited to instances in which a legal vacuum exists or the law is obscure. Bernard Arief Sidharta follows Paul Scholten in recognizing the irrational aspects in the heuristic process leading to a judgment, as each judgment is influenced by policy and the moral character of the judge. However, Arief Sidharta believes this irrationality is limited in practice as a judgment will be subjected to the legal fora (auditoria iuridica), which require the legal justification of every judgment to have sufficient rational and normative accountability to be acceptable to the judge’s peers. Following this meticulous comparison of Dutch and Indonesian legal scholars on the subject of law-finding, the article proceeds with the analysis of a recent high-profile case in which the judge had to decide whether “the validity or invalidity of an order which determines someone as a suspect” is object to a pre-trial hearing. The validity issue is not among the objects to a pre-trial hearing mentioned by the Indonesian criminal procedure code, and the legal issue is whether the court can accept the case. The author of this article, by conducting the two possible law finding methods (extensive interpretation and construction of new legal norms) himself, demonstrates how the judge in this case clearly does not follow the established methods of Indonesian law-finding doctrine that are sourced in Paul Scholten’s, Wiarda’s, Sudikno’s and Sidharta’s works. The judge without sufficient justification declared that the legality principle which applies to criminal law does not apply to criminal procedural law and that he as a judge must resort to law finding and legal interpretation as he may not reject a case in absence of a regulation. Subsequently, in applying law-finding the judge reasoned that “determination of a suspect” involves “forceful action” and therefore also is subject to a pre-trial - without carefully conducting the law-finding methods established in Indonesian doctrine. The author then concludes that many of today’s judges in Indonesia lack proper knowledge of law finding methods and are too passive, in the sense that they base their case almost exclusively on the arguments presented by the parties, without delving in the law and the legal issues at hand themselves. Although the article’s argument and reasoning are sound, I would recommend that the structure of the article is more clearly introduced. The introduction is used to introduce the Indonesian legal theorists but does not explain the relation between the different sections of the article and their contribution to the main argument. The reader therefore gets the impression that he reads two articles: one about the influence of Paul Scholten and other Dutch legal scholars on Indonesian law finding doctrine, and a case study analysis. The case study is a negative illustration showing how the judge did not apply rechtsvinding methods properly and seems to function as a plea to improve the Indonesian judges’ knowledge of and skills in the area of law finding - including the methods developed by Scholten and Wiarda. I recommend the author to make his plea more explicitly, not only in the conclusion but much already in the introduction and the abstract. This would better connect the different sections of this article. I also want to propose a correction. The translation of a key phrase in the judgment is incorrect, which makes it difficult to follow the analysis of the case: “sah atau tidaknya Penetapan Tersangka” tidak termasuk objek praperadilan, karena hal itu tidak diatur." Is translated as: “the validity or invalidity of an order which determines someone as a suspect cannot be not considered a pre-trial hearing object because it is not regulated that way “ I would suggest: “the ‘validity or invalidity of an order which determines someone as a suspect’ is not a pre-trial hearing object, as it is not [among the matters] regulated [by the code of criminal procedure].”

Rens van Zaltbommel

Without doubt studying law as a student or as a legal theorist has for decades meant dealing with theories about finding law, in cases where there seems to be no readily available answer on a legal issue. Scholten has always been a key figure as to providing means of reasoning in ‘’hard cases’’. And we have seen that Scholten was surprisingly ahead of his time, decades before Hart and Dworkin entered the discussion with full force from the Anglo-American legal and philosophical tradition. Considering basically similar problems in different legal discourses is however not always an easy task. This becomes even more difficult if actual cases are taken into consideration, which subsequently force academic theory into a problem-solving mechanism in ‘’real life’’ jurisprudence. Indeed, paraphrasing Prof. Haack, there always seems to be a troubled marriage between science and the practice of Law. (See Susan Haack, Irreconcilable Differences? The troubled marriage of Science and Law, in: Evidence Matters, Science, Proof and Truth in Law, Cambridge University Press, New York, 2014, p. 78-103). Shidarta is to be applauded for taking on this challenge. His article is well written and proves to be an interesting and thought-provoking guide through the historical and conceptual reception of Scholten’s ‘’rechtvindingstheorie’’. Thus far more than a petit histoire the article shows the reader how legal theory from one legal tradition is juxtaposed to another legal tradition, while there are both literally and figuratively oceans and continents to cross. After reading Shidarta’s article I wonder how it must have been: Scholten travelling (probably a lengthy journey by boat) to Batavia and delivering his lecture on this 28th April 1924. But this aside, I will focus on following this search for Scholten’s Legacy. Shidarta takes his time and reveals his ‘’hard case’’ only when the reader is well under way and finds himself on page 16 (of the 26 pages comprising the article in full). To me - as a practitioner in criminal law – I am slightly disappointed that Shidarta reveals a problem of criminal legal proceedings and not of criminal law itself. I fully acknowledge the memorable fact that Arief Sidharta as a professional philosopher apparently was invited as an expert witness. But nevertheless, and considered from an outsider’s point of view, I was expecting something else: A case in which the content of a criminal legal rule would be examined in the light of a certain behaviour carried out by a suspect. To put it more bluntly and as an ‘’easy’’ example, questions as to the rule ‘’ It is prohibited to hold a smartphone while driving a car’’. Thus, is this rule violated when a person is to be found behind the wheel of his vehicle on the motorway and handholding his smartphone, but while ‘’driving’’ on full auto pilot? This line of inquiry, focusing on content rather than procedure would be more rewarding. I mean, especially in terms of impact on what judges are doing and more precise on how they go about in their reasoning. Something about the quality of which Shidarta is rightfully not feeling very reassured. He concludes in the very last sentences of his article that the judge seems not to understand fully what he was doing, in blurring the distinction between finding law which is already there and the creation of new law. In my opinion a content-oriented analysis would certainly expose more of the dangerous threats of judges mixing up creation of new law with simple finding the law. Thereby these judges are blurring law in action with probably undisclosed politics in the practical reasoning of the case. It could be worthwhile to examine Scholten here, to find a way out, if legal problems present political issues which should be addressed accordingly. In keeping up with Shidarta’s line of reasoning it would have been much easier if the relevant articles of the Code were introduced simultaneously with the judgement, and not only to be found at page 20. A more tightly organised train of thought, in the sense of reasoning starting from the articles 77 and 95 of the Indonesian Criminal Code and gradually expanding, step by step, towards an analysis of the underlying ‘’norms’’ of this particular case would have contributed to the impact of his analysis. Focusing on norms, I am not entirely sure about the concept of norms in Shidarta’s analysis of the aforementioned articles. At page 5 we have already found a distinction between ‘’norms of positive law’’ and norms ‘’which are higher, (…) more abstract norms’’. Reading article 77 juncto 95, wouldn’t there be a shortcut to the solution as to recognize ‘’the more abstract norm’’ that these articles are written in order to enhance and or strengthen the legal position of a person against actions carried out by State authorities? So on a sub-level the elements of the articles 77 and 95 are – grammatically – to be interpreted as non-exhaustive, i.e. giving examples which could evoke the actions of a court. For that matter, reading those articles certainly inclined me intuitively to the proposition that the ‘’determination of suspect’’ has to be included in the normative sphere of these articles. To conclude, Shidarta’s analysis proves to be an eventful reading and most important makes you eager for more. Scholten’s legacy is still waiting to be further exploited and could greatly benefit from legal discourse in Indonesia or anywhere else for that matter. I sincerely hope that Shidarta will again take on the challenge and will continue to evaluate the reasoning of Indonesian Courts, especially when important ‘’higher norms’’ of true justice and humanity are at stake, as often is the case in Criminal Law.

author's response

I want to respond to the reviews provided by Dr. Stijn van Huis and Dr. L.K. (Rens) van Zaltbommel The review by Dr. van Zaltbommel did not specifically mention the need for changes or corrections of the article. I appreciate his comments as very important notes for the article. Concerning the review by Dr. Van Huis, I agree with the idea to bridge the two split sections by adding a paragraph at the end of the Introduction. Because in the abstract, I already mentioned the case to be analyzed and Arief's role in the case, I decided not to provide any additional information in the abstract. I also thank Dr. Van Huis for his correction. The text referring to footnotes 110 and 114 have been changed accordingly. The last paragraph which is added in the introduction is: This article starts with an outline of Scholten’s teaching on 'rechtsvinding' which is subsequently connected to the work of Sudikno Mertokusumo and Bernard Arief Sidharta. This connection shows how the legacy of Scholten is still quite strong in the academic world. Problems arise from the practical area when some legal practitioners no longer understand the essence of 'rechtsvinding' according to Scholten's concepts. This phenomenon can be observed from the example of case No. 04/ Pid.Prap/2015, analyzed in this paper, in which Bernard Arief Sidharta was also present at the pre-trial hearing as an expert explaining about law finding technique. Although he had received an explanation from the expert Bernard Arief Sidharta, in this case, the judge apparently has misquoted Arief's opinion and this further sparked the controversy over the case. The correction concerning the translation of the Indonesian text in footnote 110 and footnote 114 is: “Sah atau tidaknya Penetapan Tersangka” tidak termasuk objek praperadilan, karena hal itu tidak diatur”: the ‘validity or invalidity of an order which determines someone as a suspect’ is not a pre-trial hearing object, as it is not [among the matters] regulated by the code of criminal procedure.

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