International Journal of Indonesian Studies Volume 1, Issue 3 | Page 113

INTERNATIONAL JOURNAL OF INDONESIAN STUDIES
SPRING 2016
theories he modified to implement in the Indonesian context. He called his theory
‘normative sociologic’ jurisprudence (Wignjosoebroto, 2012, vii; Kusumaatmadja, 1997, 11).
Kusumaatmadja was inclined to place the law as the core of social and political
affairs. His theory of ‘law as a tool of developmental engineering’ was similar in many ways
to Pound’s theory, but also had several differences. Kusumaatmadja clearly copied Pound’s
sociological and pragmatism jurisprudence by favouring the state law as the main ‘tool’ to
‘domesticate’ people and ensure social order. He considered it is a patron-client relationship
(Sidharta, 2012, 11).
There were several differences between Kusumaatmadja and Pound.
Kusumaatmadja’s theory reduced the law to mere legislation and favour to public (state)
interests by giving authority to the legislature and executive body (President) to legislate the
law. Legislations were considered the most rational and effective way of making the law,
compared to precedents and living adat law. He believed the legislative body, with the
backing of a strong executive power, was sufficient to absorb the people’s aspirations and
grass-root perspectives, which was a rather naive contention.
Kusumaatmadja’s structuralist paradigm was more radical than Pound’s and far
more so than Northrop’s, because Pound, in particular, still considered social interests as
significant ingredients in the law-making process. Kusumaatmadja, on the other hand,
suggested that it was not the state that follows society’s aspirations, but the state law that
must be positioned as a sole regulator and initiator, and society, like it or not, must obey the
law of the state.
Furthermore, in the name of ‘development’, the judicial system must uphold the
government policy. Kusumaatmadja situated the ideology of development above the
supremacy of the law.29 In contrast, Pound’s context was a common law tradition in which
judges have a significant role in elaborating the law and have the ability to simply re-new
the law. The supreme source of law was not positive law (legislation), but rather, a legal
principle that may be a custom or community value. This principle must be flexible and fluid
depending on the social interests, and social interests must override state interests
(Cotterrall, 1996, 23).
With regards to living adat law, Kusumaatmadja dichotomised adat law and living
law by saying that adat law was an obsolete and colonial legacy law which is irrelevant for
Indonesia’s development, thus the cult of adat law must cease (Rasjidi, 2012, 121). On the
other hand, the living law, which was customary law, should be positioned as a guidance for
state law. The living law, located outside the epicentre of government, must be modified
and used for the sake of state development. Unification must be supported because it will
guarantee legal certainty and support law and order, and pluralism from the Dutch legal
dualism era must be forgotten because it was merely an anti- acculturation policy aimed at
alienating Indonesians from modernisation (Kusumaatmadja, 1997, 185).

29

In the New Order era, the Supreme Court and its subordinate courts were under surveillance and structure
from the Ministry of Justice. In that time, the court was totally under control of President Soeharto.

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