Reviews of Re-appraising Paul Scholten

His Influence on the Development of a National Legal System in Indonesia
by Tristam Moeliono
(3 reviews)

Review by Adriaan Bedner on 22-01-2020

This is a well-researched article that provides an important contribution for a better understanding of an important part of Indonesian legal history – one about which many myths are told. What makes the article particularly valuable is the link it makes between the colonial and post-colonial period.
I have noted a number of smaller points in the text to be sent to the author. My main comments are the following:
1) After so many good insights, the conclusion does little to engage with the existing literature. I would expect the author to address the work of the scholars he mentions at the start – notably Soetandyo Wignjosoebroto – whose interpretation of the colonial legal history is at least in part at odds with the findings of the author. The same applies for David Bourchier’s ‘Positivism and Romanticism in Indonesian Legal Thought” (Timothy Lindsey (ed) Indonesia Law and Society, The Federation Press, Sydney (2008).
Another line of literature concerns the present state of Indonesian legal scholarship. To what extent do the findings of the author align with those from Ab Massier? In the same basket I would put Adriaan Bedner’s “Autonomy of law in Indonesia.” Recht der Werkelijkheid 37 (2016).
2) If possible the author might add some information on the influence of Arief Sidharta’s work in Indonesia and to what extent his translations and elaborations of Scholten have found a readership – and why or why not. In other words, the reception of his work would merit some attention as well.

Review by Frank van Ree on 22-01-2020

In his well documented article Tristam Moeliono shows us the traces that Paul Scholten left in Indonesian legal thinking. It seems impossible to be able to understand the development of Indonesian law and of the Indonesian legal system without a reference to Paul Scholten. Above all it is interesting to see Paul Scholten placed in a key role regarding the process of de-colonization in Indonesia. Particularly his efforts to replace Latin by Malay and Javanese, the two indigenous languages at that time, seems to be a key moment in the development of an Indonesian legal system that could replace the Dutch colonial legal system. Reading the article some similarities occurred in a profound way. First the sociological and anthropological influences that were important in Paul Scholtens’ conviction that legal scholars should be able to learn and think in legal terms in their own native language. Second the discussion on Arief Sidharta’s references to Paul Scholten, especially Sidharta’s turn to the ‘Volksgeist’ and the consequences of this typical interpretation of Paul Scholten’s work. And third the similarities between the Indonesian process of de-colonization and the emancipation and democratization movement in the Netherlands during the sixties and seventies.

Paul Scholten was directly influenced by what I call the first sociological wave that hit legal thinking. The idea that a society can only be perceived as a social organism that needs to be freed from individualistic legal thinking, has had a dominant role in the development of the legal discourse during the interbellum. Nevertheless, in that legal discourse one of the main subjects of discussion was the assumption that socials facts could and should be brought to a status of objectivity that couldn’t and shouldn’t be disputed by legal attempts to structure society. It’s the opposite of the way Hans Kelsen defined the legal system as a logical and systematic translation of a legal reality. Paul Scholten takes position in between these two antipodes.
This is important to comprehend Scholten’s wish to introduce a native language at the Rechtshogeschool in Batavia. He is aware of the necessity for legal scholars to think scientifically in their own language. They need to be capable to understand the daily life of the indigenous people in a scientific, sociological and anthropological way to be able to apply the law in a specific situation. But he also pays tribute to the legal system as a dogmatic set of rules that represent the values of the society. In the judge’s decision both these aspects, the scientific and the legal, come together. Therefore, the role of the judge is so important in the application of the law according to Paul Scholten.

Arief Sidharta’s re-appraisal of Paul Scholten’s legal thinking seems, as Moeliono shows us, to link the thinking of Paul Scholten in its reference to the dogmatic aspect of legal science, to a nationalist interpretation of dogmatic legal science. Moeliono uses the word ‘Volksgeist’. Within the context of a strongly believed conviction to establish an independent de-colonized Indonesia state, it is easy to understand that Sidharta’s interpretation of Paul Scholten’s references to the sociological and anthropological sciences, takes a direction that assumes the possibility to establish a collective will, from which a governmental policy to fulfill societal needs can be monitored. But exactly at this point Scholten has always been aware of the danger of an exclusive use of the law in favor of governmental policy. Application of the law must always take into account the tension between governmental aspirations and the rule of law that protects the individual against the powers of the state. Exactly this notion influenced the discussions on sociological theory. Legal thinkers like Leon Duguit in France and Theodor Adorno in Germany pointed at this dangerous side of sociological theory, i.c. Durkheim’s theory.

At this point the article that Moeliono has written, shows a similarity with the discussions that dominated the scientific thinking during the sixties and seventies in the Netherlands. The strongly felt desire to democratize society affected the legal discourse in the Netherlands. This strong belief in democratization and societal transformation was accompanied by a second sociological wave that overflooded legal thinking.
The belief that sociological scientific insights could change society became politically effective when the establishment was successfully challenged by mass protests of students and workers as in the rest of Europe and The United States. One cannot exaggerate the impact of these protests on the Dutch society which is probably one of the most affected societies in the Western world. With the help of an activist interpretation of the role of the legal system and at the same time an activist role of the judge, an instrumental use of the law was supposed to set aside old relations and practices that obstructed new insights and ambitions. As well in Indonesia as in the Netherlands these reform movements neglected the importance of the law as a systematic regulation of the strength of non-governmental institutions.
The fact that Indonesia still has not succeeded in translating the old Dutch colonial conceptual framework into a native language that could be used to reform and structure the Indonesian society is probably, besides other problems as poverty, corruption and abuse of power, due to a instrumentalist use of law. The ambition to undo the influence of the past, sets aside the importance of long-lasting concepts of law that deserve to be protected against the everyday momentum.
Tristam Moeliono gave us a new perspective on the influence of Paul Scholten in the Indonesian legal thinking. I regard it as a call for further scientific investigation in general in the relation between Indonesia and the Netherlands and particularly in the relations and developments between the legal science in both these countries that are historically so connected to each other.

Review by author's response on 28-01-2020

First of all, I appreciate very much the time given by the reviewers (Frank van Ree and Adriaan Bedner) to read and comment on my article. It has been almost 4 years since I began to write this article. Changes and improvements, also in terms of the English grammar, have been made with the help of the editor Ms. Liesbeth Huppes, who with utmost patience pointed out what was wrong with the first draft. This I think enabled the reviewers to give comments, either praise or criticism. Both are welcome and to both reviewers I wish to convey my gratitude.

I wish to convey particularly my gratitude to Adriaan Bedner for the critique and recommendations, he provided. I took the time to re-read the books and articles Adriaan Bedner mentioned in his review. Unfortunately, for the moment I could not lay hands on Ab Massier’s work. However, Bedner’s article on the autonomy of law in Indonesia mentions several of Massier’s basic ideas about the shortcomings of Indonesian language as a foundation for Indonesian legal scholarly discourse. Soetandyo sees the history of colonial education more as an endeavor which estranged and marginalized bumiputera students from their origins. In Soetandyo’s view they became Dutch and served the colonial government’s interest. But what Soetandyo fails to mention is how graduates from these small elites (students and graduates of the colonial law school) were behind the Kongress Pemoeda I and II and the adoption/development of bahasa melayu into the Indonesian language.
I do agree with David Bourchier’s article on the influence of positivism and romanticism in Indonesian legal thought. This influence is particularly apparent in the casting of Pancasila as (following Savigny’s idea) the spirit of the nation, which is also conflated with Adat law, understood more as basic legal principles which have the capacity to unify and are particular to the Indonesian nation. But I did not make the choice to go deeper into the shortcomings of the Indonesian legal system as the product of the postcolonial Indonesian legal scholars and the extent to which the Indonesian legal system is or is to become autonomous. In regard to Arief Sidharta’s influence and to what extent his translation of Paul Scholten’s work has found readership in Indonesia, I can only answer the first question in brief. I believe I already provided this in one the article’s footnotes. His work inspired his students (Shidarta-Binus; Anthon F. Susanto-Unpas and other members of the Association of Philosophy of Law Lecturers) to appreciate the importance of “penemuan hukum”.
I also appreciate very much van Ree’s comments. It places my article in a wider context and provides a comparison with quite similar discussions in the Netherlands in a much earlier period, the sixties and seventies of the last century. It also made me think again about Scholten’s notion of how Indonesian legal scholars need to think scientifically in their own language and how with globalization this may pertain to other languages as well. Unfortunately, there still needs much to be done in improving the (spoken as well as written) Indonesian language. This is all the more pressing as Indonesia still struggles to change the colonial Criminal Code into a new law written in Indonesian and embodying the Indonesian Volkgeist.

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