Justice in Indonesia: The Social Life of a Momentous Concept

In this article we argue that efforts in Indonesia to improve access to justice for the disadvantaged would greatly benefit from a pragmatic approach that takes local circumstances of custom, values and social relations into account at least as much as legal reform and bureaucratic transparency. We maintain that in post-Suharto Indonesia ‘justice’ can be conceptualised as the inverse of injustice and is manifested in terms of sovereign interests. Ideal justice, such as associated with rule of law implementing programs, assumes a functioning of government and judiciary that might bring about such results. Building on our own research as well as on the articles in this special issue we argue that engaging with the role and meaning of justice should involve solid ethnography of justice-seekers' life-worlds, understanding of the strategies and institutions that provide justice, and paying attention to the networks and interactions that connect actors in an ever moving field.     

MEMORY AND ECHO

Much contemporary writing about law treats popular culture as a creature of modern technology and the phenomenon of mass media. This misunderstands both its continuity with traditional forms, and the precise differences that modern technology creates. Popular cultural representations of law and justice appeal to a longstanding tradition evident in familiar archetypes of cowboys and superheroes. Indeed, such a tradition reaches back to much older Christological models of justice and subjectivity, which modernism has deflected but never destroyed. On the other hand, hi-tech media embeds those traditions in technology's language of passivity and its strange but insistent erasure of the past. Under conditions of the contemporary world, popular culture appears not as the memory of past thinking about law, but as an echo. The irony is that while popular culture's presentations of law appeal to a substantive tradition, their formal hyper-modernity not only negates that past but undermines the pluralist and discursive openness which are its well-spring. In a world shorn of faith in the traditional structures sustaining the ‘moral economy’ and a moral legality, the appeal to simply trust in an inarticulable justice opens the prospect not of salvation but of legal tyranny.     

The Normative Erosion Hypothesis: The Latent Consequences of Juvenile Justice ractices*

The normative erosion hypothesis is that nonpunitive reactions by legal officials will erode offenders' normative evaluations of delinquency. Consistent with the hypothesis, survey data from Arizona high school students show that offenders who have been referred to a “hands-off” court express less condemnation (i.e., have lower perceived seriousness) of delinquency than do offenders with no court referrals. The findings also show that the perceived threat of legal punishment is positively related to offenders' perceptions of the seriousness of delinquency. The findings bear on the normative validation thesis in the sociology of law and have important policy implications for juvenile justice practices.     

A legal realist view on citizen actions in Hong Kong's umbrella movement

This article considers the legal validity of citizens' actions in civil disobedience as it pertains to the umbrella movement in Hong Kong. It introduces the critical approach of “legal realism” in order to reconsider normative law, such as police enforcement and court interventions, in relation to political struggle. It has been argued that the legal precepts of rights, responsibility, and the rule of law are capable of contingent and contextually appropriate interpretations by different legal actors, including citizens who participate in civil disobedience. In politics, justice, and most importantly law, civil disobedience offers an alternative legal normativity to consider the citizen's right, and even duty, to express dissent. Furthermore, this right or duty is legally persuasive and conducive to guarding democratic principles.     

Beyond professional snail races: Contextualizing corporate communication in Indonesia

This study provides an overview of the current state of corporate communication in some of Indonesia’s largest companies. A cross-cultural survey of senior managers highlights the uniqueness of Indonesia by comparing practitioners’ perceptions with results from two Western countries, namely Austria and Australia. The results reveal the limitations of traditional professionalization theories; embedding corporate communication into the cultural and institutional context has proved to be more instructive. Practitioners in Indonesia employ a comparably critical distance to their own cultural environment. However, at the same time, they are highly adaptive when it comes to the stringently regulated and politicized institutional context of their work. From a normative perspective, we would instead support a self-understanding of professional communicators as societal change agents.     

The Role of Indigeneity NGOs in the Legal Recognition of Adat Communities and Customary Forests in Indonesia

The main assumption of indigeneity NGOs in Indonesia is that state recognition will strengthen indigenous peoples’ rights to their land and forests against ongoing or future dispossession. In Indonesia, legal recognition has become central to the approaches of indigeneity NGO campaigns, while the local realities and problems among indigenous communities seem to receive less attention. Has legal recognition of indigenous communities turned into a national NGO project that does not solve the communities’ land and forest-related problems? In this article, we compare two locations where communities have succeeded in obtaining state recognition. By focusing our analysis on the steps in the recognition process, from articulating community problems to eventually solving them, we show how indigeneity NGOs have had a dominant role, but achieved limited success. Instead of resulting in community autonomy and tenure security, the legal recognition process reproduces state territorialisation over customary forests and communities.     

Legal Mobilisation and Justice: Insights from the Constitutional Court Case on International Standard Schools in Indonesia

Analysis of the role of courts in shaping access to justice in Indonesia has emphasised the role of judges and the incentives created for them by courts' institutional design. Alternatively, it has focused on individual justice-seekers and their capacities to choose between alternative pathways through the legal repertoire. In this paper, we suggest that ‘support structures for legal mobilisation’ (SSLMs) have also played an important role in shaping access to justice by influencing both the potential for legal mobilisation and the type of justice sought. In making this argument, we focus on a recent Constitutional Court case on ‘international standard schools’. In this case, a group of parents were able to mobilise for legal action only because NGOs provided the required technical expertise and financial resources while the central involvement of an anti-corruption NGO in the SSLM shifted the focus from parents' concerns about discrimination to corruption.     

LEGITIMATING TRANSPHOBIA

Transgender persons are strangers to the law; or put more accurately, the legal imagination is so deeply entrenched in normative gender binarism as to effectively render transsexuals a ‘freakish’ anomaly to law. This essay attempts to offer a reflection on transgenderism, law and sexual crime from a human rights and criminal law perspective. It focuses on one of the most violent types of institution in society – the prison – and asks: what are the legal imagination and practice surrounding transgender prisoners as they are linked to social and cultural transphobia? What ‘human’ rights can be practiced for a dehumanized class? It first surveys the legal predicament of transgender prisoners in the US prison system in relation to Eighth Amendment rights provided by the US Constitution. The US situation has seen cases that have importantly shed light on other jurisdictions when engaging with the combined questions of prisoners’ rights and transgender rights together. The analysis is then taken to the context of Hong Kong prisons in a modest application. In contrast to some other Asian contexts (such as Taiwan, Thailand and Indonesia), critical cultural studies of transgenderism are non-existent in Hong Kong. Meanwhile, human rights studies of the same have only emerged through the work of legal scholar Robyn Emerton. It is hoped that a rights-based approach will emerge in Hong Kong for the protection of transgender inmates from sexual violence in local correctional facilities.     

Tutor and Student Experiences of Teaching and Learning Law in UK Social Work Education

In a project researching the outcomes of teaching law in social work education, students and tutors were asked to reflect on their experiences of both the academic curriculum and how learning was translated into practice. Curriculum documents in the eight participating universities were also analysed.

At times distinctive orientations emerged from approaches to teaching and practising social work law articulated by tutors and students, and captured in course documentation. On what contributed to effective teaching outcomes, both students and tutors emphasised the application of law learning to practice and the importance of considering learning styles. For students, law learning remains a complex challenge but with a clear interface with social work values. Teaching can help to reduce anxiety about practising social work law but familiar barriers to learning and its application in practice also surfaced. In addition to the time allocated to law learning, development of legal knowledge and skills was greatly affected by the priority given to this aspect of practice during placements.

The openness of practice assessors and managers towards the legal rules and students who use their legal and ethical literacy to advocate for particular outcomes for service users was a crucial factor positively affecting the student experience.     

Debating Spatial Governance in the Pluralistic Institutional and Legal Setting of Bali

This paper analyses controversies over law-making processes on spatial planning in Bali, Indonesia. Rapid development of the tourism industry and concerns over environmental sustainability and commodification of culture gave rise to heated debates over the province's spatial planning regulation. The analysis focuses on the legally and institutionally plural character of Bali, and thus is not confined to the state legal regime. As in many other developing countries, customary and religious legal regimes co-determine how spatial planning is dealt with legally and institutionally. State law itself may be plural because of different interests represented through it at various levels of governance. A broader discussion is needed of this complex legal and institutional setting about which concepts of space and whose interests in space are represented through the various legal repertoires in the process of developing a spatial planning regime.     

Independence for those without freedom: slavery and manumission in Mérida,Venezuela, 1810–1854

This article examines slavery and manumission in the state of Mérida in western Venezuela from the wars of independence (1810–1821) until abolition in 1854. It argues that slavery was preserved during the insurgency and reinstituted after independence through the continuation of Iberian slave law and the implementation of republican manumission legislation, which served to prolong slavery rather than hasten its demise. Slaves also used the corporate legal rights of colonial law to seek manumission and protection from abuse after 1821. Iberian legislation, though, was reinterpreted within the ideological and institutional framework of the liberal nation-state. Thus, competing legal frameworks and political interests, the growing influence of liberal doctrine and the selective and often arbitrary application of property, slave and manumission laws constituted important aspects of struggles over slavery and manumission in the early republican era.     

Social Equality and the Mobilization of the Law

Sociolegal scholars refer to the invocation of law or rules during a dispute as the mobilization of law. Most studies of the mobilization of law focus on the mobilization of law by people in non‐official capacities, particularly by persons of relatively low social status or in positions of social disadvantage. Early studies debated the effectiveness of court‐centered strategies for social justice, examining whether real social change could be achieved through formal judicial means. Scholars now largely agree that law can be effectively mobilized for social change through both direct formal legal action and the indirect radiating effects of legal mobilization. This is because the influence of law goes beyond the courtroom; rights consciousness and legal mobilization help to transform culture and understandings of social status and power. Currently scholars are turning their attention to the mobilization of law within organizations such as schools and workplaces and the mobilization of rights talk and justice talk in unofficial arenas domestically and internationally.     

Is there a moral economy of state formation? Religious minorities and repertoires of regime integration in the Middle East and Western Europe, 600–1614

This article asks how state formation processes informed the normative frameworks of late-Medieval and early-Modern Latin European and Muslim Middle Eastern regimes. The question at hand is not why pre-Modern regimes discriminated against religious minorities (as well as other groups) during the pre-Modern period, but why Western European states consistently engaged in mass expulsions of their non-Christian subjects from the late thirteenth century onward and the neighboring states of the Middle East did not. Rather than addressing these peculiar policies as a function of religion, culture, or law the article adopts a comparative, contextual method. With the aid of Charles Tilly’s theoretical perspectives it isolates critical variables in pre-Modern Middle Eastern state formation. These variables are then used to shed light on the circumstances and relationships that led to Latin Europe’s mass expulsions of Jews and Muslims between 1290 and 1614.     

Introduction: Transnational futures of international labour law

This Special Issue on transnational labour law is placed in the context of the ILO centenary and the challenge of achieving the objective of decent work in a new century, under distinct transnational pressures. The author argues that international labour law, as the normative core of transnational labour law, can play a crucial role – in conjunction with a wide range of actors and the ILO in its standard-setting and convenor capacities – in addressing this challenge and in reshaping the transnational legal architecture.     

Changing Indigeneity Politics in Indonesia: From Revival to Projects

Through the discourse of indigeneity, rural communities around the world are joining a global network of rural justice seekers. By articulating grievances collectively, they demand state recognition while seeking support from NGOs and international development organisations. In Indonesia, the manifestation of indigenous ‘adat’ politics is no longer confined to the national struggle for the recognition of land rights, but instead, has proliferated into many localised short term ‘adat projects’. This introduction to the TAPJA special issue on adat demonstrates that both the rural poor and local elites can be the initiators or recipients of these adat projects but, at the current juncture, the latter are better positioned to benefit from such projects. The special issue shows that in Indonesia, where adat is often firmly entrenched in the state, the promotion of indigeneity claims can work in contradictory ways. Findings from across the special issue show that adat projects tend to reinforce the power of the state, rather than challenging it.     

National Governance Frameworks in the Global Compact on Refugees: Dangers and Opportunities

This article examines the treatment of national governance frameworks in the Global Compact on Refugees. Given that national governance frameworks are the primary determinants of whether a refugee can live safely, move freely, work, and access state and private services such as education, healthcare, banking and justice, their treatment in the Global Compact has important implications for future prospects for local integration, the durable solution least‐often discussed but most likely to become the de facto reality for most of the world's refugees.     

Legal Adaptation Among Vietanmese Refugees in the United States: How International Migrants Litigate Civil Grievances During the Resettlement Process1

This article examines an overlooked dimension of adaptation among international migrants: how they use the host society's legal system to seek redress for grievances that arise during the resettlement process. The article terms this process legal adaptation and focuses on foreign‐born plaintiffs in civil litigation. A sample (N=137) of state and federal civil cases with at least one Vietnamese litigant is used to analyze the temporal patterns in legal adaptation among Vietnamese refugees from 1975 to 1994. Several aspects of Vietnamese litigation match their macro‐level resettlement process, such as civil rights and intraethnic litigation occurring later than other types of cases. But civil suits with a Vietnamese plaintiff and a native defendant tended to occur earlier than civil suits with a native plaintiff and a Vietnamese defendant. The article identifies the role of legal organizations and international grievances as the sources of Vietnamese refugees' rapid legal adaptation.

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中西法律思想中法律与道德关系比较研究——兼论中国程序正义的理性选择

法律与道德的关系是法学问题研究不可回避的一个重要方面。通过对比探讨中国与西方在法律与道德关系研究上所持的不同的理论观点,提出应从制度层面上将人类的道德理想与原则外化为法律规范。同时,强调程序的重要性和公开性,从而为实现中国司法实践中真正意义上的程序正义提供良好的法制现代化环境。     

Gender Difference and Gender Disadvantage

This paper explores the theoretical foundations of American sex discrimination law. Traditional legal frameworks have analyzed gender issues in terms of gender difference. Yet, inder this approach, sex-based differences have been both overlooked and overvalued. In some instances, such as occupational restrictions and military service, courts have transformed biological distinctions into cultural imperatives. In other cases, such as those involving pregnancy, sex-based differences have remain unacknowledged and unaddressed. The alternative framework proposed here focuses less on gender difference than on gender disadvantage- on inequalities in the sexes' social status, political power, and economic security. Taking issues surrounding occupational restrictions, protective labor, and maternity policies as representative samples, the paper suggests how a contextual inquiry can usefully shift gender discrimination law from its focus on difference to the consequences that follow from it. For most of this nation's history, the law's approach to gender difference has alternated between exaggeration and neglect. Neglect has been the preferred strategy; the recent cluster of Bicentennial conferences on women and the Constitution is an ironic reminder of the fact.¹ When the nation's founding fauthers spoke of "We the People" they were not using the term generically. Although subject to the Constitution's mandates, women were unacknowledged in its text, uninvited in its formulation, unsolicited in its ratification, and, before the last quarter-century, largely uninvolved in its interpretation. Yet, as these recent conferences also testify, such patterns of silence have been broken. Women have found a voice. How we should use it is a question worthy of greater exploration. The following analysis considers a specific set of questions about voice. How we describe the relation between the sexes involves a politics of paradigms that legal decision makers rarely acknowledge or address. For the most part, traditional legal frameworks have analyzed gender issues in terms of gender difference. Under this approach, sex-based distinctions have been both overvalued and overlooked. In some contexts, such as occupational restrictions, courts have transformed biological differences into cultural imperatives. In other cases, such as those involving pregnancy, those differences have remained unrecognized. Significant progress will require an alternative framework, one focused not on gender difference but on gender disadvantage.     

The Child Protection Clinic: A mixed method evaluation of parent legal representation

Providing parents with low incomes accused of child maltreatment access to quality legal representation is both a social justice issue and potential resource for improving their children's well-being. This mixed methods research evaluates a law school clinic which provides indigent parents with legal representation by law students supervised by experienced attorneys. Thirty-nine individuals knowledgeable about the clinic (12 court professionals, 5 law school faculty, 2 parent mentors, 11 students, and 9 parent clients) participated in in-depth, semi-structured, audiotaped interviews focusing on the quality of parent representation. Interviews were contextualized by extensive participant observation and document reviews. Quantitative analyses of administrative data focused on case outcomes identified by participants as desired during qualitative interviews: family reunification, timely case closure and children's placement with relatives. Outcomes for 19 children whose parents were represented by student attorneys did not differ significantly from those of a propensity score matched comparison group of 19 children whose parents were represented by fully licensed attorneys. Participants described clinic staff as providing strong legal counsel to parents, building positive attorney–client relationships, possessing positive personal characteristics, and providing a needed service to the broader community. Participants also identified areas for improvement including: educating parents around court procedures, and better cross system collaboration between child welfare and legal professionals. The Child Protection Clinic is a promising model for providing quality legal representation to parents involved with child protection in order to support child well-being.