INTERNATIONAL JOURNAL OF INDONESIAN STUDIES SPRING 2016
Koesno was not only against legal formalism , he also rebutted the movement of legal pragmatic or sociological jurisprudence . Law as a tool changes the position of law from meta-physic , a propri ( law as a value ) to an a posteriori sociological-empirical stand point . It is not society that follows the values of the law , but the law itself that must adapt to its social surrounding . Koesno rejected this proposition ; however , he strayed in understanding from Ehrlich ’ s theory , which he claimed as a free law tenet . In fact , Ehrlich ’ s theory was a living law theory , which was a sociology of law theory , thus making Koesno incorrect in positioning Ehrlich ’ s theory as sociological jurisprudence . With regards to Pound ’ s theory , he wrongly interpreted the word ‘ law ’ in ‘ law as social engineering ’ as ‘ legislation ’. As a matter of fact , ‘ law ’ in Pound ’ s context was a common law , meaning a court decision . In fact , idealistic jurisprudence supported by Koesno and sociological jurisprudence are not strongly contradictive , because both theories are meta-physic and structuralistic in nature , and the law is transmitted from above . The only difference is that sociological jurisprudence adds external interests to the law .
Koesno ’ s disagreement with sociological jurisprudence was caused by Indonesian legal experiences rather than the concept itself . In the Old Order regime , Soekarno used law as a tool of revolution , his political jargon , and in the New Order regime , Soeharto used law as a tool of ‘ development ’, favouring his cronies and evil businessmen . Koesno argued that in order to find the true spirit of Indonesian law , the legislators and judges must look closely at the Preamble of the Constitution , as well as its Articles and explanation . Meanwhile , imported Western legal perspectives should be lessened . Koesno ( 1994 ) was critical of codification , and of a hybrid legal system . He believed that a legal system that is the result of legal transplant from imported legal values will jeopardise the true and pure Indonesian legal system . Koesno ’ s a priori reasoning seems too naive and emotional , because , today , the Preamble of the Constitution has been erased and its essence transferred to the Constitution ’ s Articles .
New Order developmental era
The legal system in general , and legal education in particular , in Soeharto ’ s developmental era was misleading , because the law was considered a mere ‘ legitimation ’ of economic development . ‘ Development ’ soon became a much-used ( and much misused ) word at the time , with almost all governmental aspects being inserted with development jargon . 27
Mochtar Kusumaatmadja 28 had a significant role in establishing the ‘ development ’ notion . Kusumaatmadja was a strong protester against Soekarno ’ s guided democracy and the socialist economics paradigm . Kusumaatmadja was influenced by structuralist and functionalist theories , particularly from Pound , Northrop , Lasswell and McDougal , whose
27
These ‘ development ’ jargons included : cabinet of development , economic of development , national development , sustainable development , education of development . Notably , legal guidance of the government , the National Guidance ( GBHN ) 1973 and the National Development Five Years Plan ( Repelita ) II , stated that legal development had an important role in all governmental aspects .
28
He was a former Minister of Justice ( 1974-1978 ) and Minister of Foreign Affairs ( 1978-1988 ). Kusumaatmadja ’ s academic pinnacle was between the 1970s and 1995 , coincidently the summit of Soeharto ’ s developmental era .
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