International Journal of Indonesian Studies Volume 1, Issue 3 | Page 114

INTERNATIONAL JOURNAL OF INDONESIAN STUDIES SPRING 2016
Indonesian legal development under developmentalism , must support national stability , and therefore , legislation must be regulated by insensitive issues only , while avoiding sensitive issues , such as human rights , the protection of labour and marginalised people . The character of the law soon changed to conservative . The first priorities of the state were to stimulate rapid economic development and promote state stability . The law became static as it was reduced into positive law , and legislation was considered selfsufficient . This led the judiciary to a singular reliance on legislature , an excessively formalist attitude . The jurists could not even imagine how to interpret the law creatively .
This was worsened by the idea that precedent was not binding , because Indonesia was a civil law country . Precedents only had a binding-power in the common law tradition , and thus , in Indonesia , judge should be less concerned with precedent . In fact , Kusumaatmadja ’ s argument was obsolete because there was no doubt that in all developed civil law systems , precedent was considered binding ( Bedner , 2013 , 263 ). This faulty allegation caused Indonesia ’ s legal development to suffer from a formalist paradigm .
Reformation Era
Despite law reforms since the fall of Soeharto , formalists and developmentalists still actively promote their ideas with the aim of putting Indonesia back on the ‘ developmental track ’. One followers of the late Kusumaatmadja is Erman Rajagukguk 30 , who fiercely upholds the notion of state developmental evolution . Rajagukguk ’ s ideas were influenced by Organski ’ s view that the modern nation has gone through three development stages : unification , industrialisation and social welfare state ( Mendelson , 1969 , 223 ).
He believes that Indonesia , like many other countries that have undergone these stages , such as Japan , England , and the United States of America , must have consecutive consistencies with these developmental stages . This view was derived from Rostow ( 1960 ) who strictly dichotomised the traditional and modern communities , and believed that the traditional community should be weakened and , if possible , eliminated in order to achieve modernisation .
Rajagukguk ( 2007 ) implicitly advised the current government to continue the developmental and industrialization policy , because , in fact , Indonesia is still in its industrialisation stage . Law and its practitioners must fully endorse economic development by creating legal certainty and stability in all aspects of business and foreign investment , and lastly educate lawyers as corporate lawyers who strongly uphold ‘ the law of economic ’. These strategies are the meeting point between formalists and developmentalists . Development and human rights are positioned as contradictive elements , and the state cannot address them both . Instead , the state must choose whether it wants to prioritise development while disregarding human rights , or vice versa .
This approach has its drawbacks , in that the capitalist laws must override human rights principles and disregard access to justice for marginalised groups because development is considered to be nothing more than economic growth . O ’ Manique ( 1992 ) suggested an alternative approach which contradicts to the Rostow ’ s view . He stated that
30
He is a legal professor in the Faculty of Law at the University of Indonesia . 114 | P a g e