Reviews of In Search of Scholten’s Legacy

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].”

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.

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.