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Showing posts with label Legal Philosophy. Show all posts
Showing posts with label Legal Philosophy. Show all posts
  • Hukum dan Imajinasi - Sebuah Surat Cinta Bagi Ilmu Hukum

    Di penghujung artikel saya minggu lalu mengenai kemungkinan sesuatu mengada dari ketiadaan, saya menyampaikan bahwa salah satu alasan penting untuk menunjukkan bahwa keberadaan Causa Prima atau Tuhan bukan merupakan suatu keniscayaan secara logika maupun ilmiah adalah supaya orang memahami bahwa hal tersebut merupakan perkara iman dan keyakinan pribadi yang tidak bisa dipaksakan kepada orang lain. Dalam artikel hari ini, saya ingin menyampaikan satu alasan lainnya yang tak kalah penting terkait pemahaman di atas, yaitu pentingnya berimajinasi. 

  • My New Papers on SPV's Law and Economics and Legal Positivism


    It's been a while since the last time I wrote in this blog. I admit, I have sinned. But enough with the excuses. I've just finished two papers having completely different themes. The first one is titled: "Special Purpose Vehicles in Law and Economics Perspective". You can download the paper here. The second one is titled: "Legal Positivism and Law & Economics: A Defense". You can download the second paper here.

    The first paper will be published in the Journal of Indonesia Corruption Watch to be published this year. In this paper, I discuss the nature of Special Purpose Vehicles (SPV) in the form of corporation, their function and benefits, their potentials for misuse, and also the techniques to solve or prevent such issue. I believe that for a developing country like Indonesia, relying on legal doctrine such as piercing the corporate veil to chase the ultimate shareholders of SPVs who conduct illegal acts would be too costly. They are just too cunning and some countries specialized in the formation of SPVs have all the incentives to assist these crimes.

    So, the other solution is to ensure that those SPVs established in Indonesia will be here to stay, namely, we need to put some of their capitals as hostages in Indonesia by way of mandating minimum capital requirement or bank guarantee/insurance requirements. I also discuss the costs and benefits of these solutions as there is no such thing as a perfect solution. The rest can be read in the paper.   

    The second paper will be presented in the third Indonesian national conference of legal philosophy to be held at Surabaya on 28 August 2013. I always enjoy legal philosophy, particularly Legal Positivism and I think that most Indonesian scholars misunderstand the nature of Legal Positivism by equalizing Legal Positivism with Legal Formalism or even worse, strict textual method of legal interpretation.

    Of course this is wrong. Legal Philosophy is a theory of law while Legal Formalism is a theory of adjudication. But the mistake is so persistent that Legal Positivism is often blamed for many issues in Indonesian legal system! I think the conference would be a good place to present a defense on Legal Positivism so I decided to write this paper.

    The paper will discuss the main thesis of Legal Positivism, i.e., the Source Thesis (that law is a social fact and can only be derived from social sources) and the Separability Thesis (that the content of the law does not have any necessary connection with its validity). People usually connect Separability Thesis with the relationship between law and morality. But I believe that the issue is wider than that, it can include religion, local custom and other type of norms.

    I certainly believe that Legal Positivism (if applied correctly), is a democratic thought that will allow various legal theory to compete for domination within a legal system. I argue this by showing how Law and Economics (which is obviously not a pure theory of law) can survive in the framework of Legal Positivism but will be kicked out from the game in the framework of Natural Law (because by nature, Natural Law which supports only one absolute value will not be tolerant to other type of thoughts). As usual, the rest can be read in the paper itself.

    Happy reading and hope it is useful.
  • Once Again, In Defense of Legal Positivism


    This article is a continuation of my previous article: In Defense of Legal Positivism - A Reply to Iman Nasima. Since Imam has kindly responded to my article here, I think it should be appropriate to press the discussion one step further (though I have to apologize for the huge delay in responding to his second article).

    Legal Positivism is Not a Method of Legal Interpretation

    The first question that I asked in my previous article is: how critics to Legal Positivism perceive Legal Positivism? Is it a legal theory or method of interpretation? For me, the answer is obvious. Legal Positivism does not deal with method of legal interpretation, it is a theory of law.

    Why does this distinction matter? Because from my readings of various people who criticizes Legal Positivism, I get a tendency that they equate Legal Positivism with strict Textualism or Legal Formalism, i.e. that under Legal Positivism, judges tend to interpret the laws solely based on the texts of the formal laws issued by the state, and that these judges do not consider other basic principles such as justice and morality when they can found a governing law in resolving legal matters.

    Of course this is completely wrong and shows a lack of understanding of what is Legal Positivism. You cannot make a good critic if you don't understand the concept that you criticize. It will simply be a waste of time for everyone.      

    Whose Authority?

    This is indeed a really difficult question. In practice, questioning the normativity of law will not be completed without asking who is the authority that must be honored in the first place. This is in line with the support given by Legal Positivism to the Source Thesis, i.e. that the existence of law can be solely derived from its sources and not its contents.

    Under the Source Thesis, people can recognize the existence of the law by paying attention to the sources of that law, i.e. the authority who issues the law. HLA Hart tried to explain this thesis through Rules of Recognition, i.e. secondary rules in a legal system that give guideline on when certain rules can be treated as laws.

    When certain rules meet the criteria of the Rules of Recognition, those rules will be deemed as laws with all of their authoritative/normative power upon their subjects. The problem is, who stipulates the rules of recognition and why we should follow those rules of recognition in the first place?

    At this stage, Legal Positivism as a descriptive theory of law would be unable to answer that question. Why? Because it is a question of fact. Imam correctly shows that there are various competing theories on dealing with the concept of authority and how authorities derive their power.

    To give more context on the above discussion, I recently read Justice Scalia and Bryan Garner's  treatise on Legal Interpretation where they said that British and US judges differ in terms of authority. In England, the judges can hold the same position with legislators, so they can make the law and interpret the provisions at the same time. While in the United States, the power to make laws lies with the legislators while judges are required to enforce the laws.

    The basis for this separation of power in US (at least according to Scalia and Garner) is to maintain the basic principles of democracy, i.e. that laws should be promulgated by representatives of the people that will be held accountable to their voters, and not by judges who are not appointed through democratic process.

    It's an interesting theory of how judges and legislators should behave in a legal system, but I'm not sure that we can consider this as a pure legal theory. It's more of a political theory. There is no legal basis on why judges should behave like what Scalia said nor a rule of recognition for that given the fact that judges in the United States are still debating on their roles in the legal system.

    The same thing is also applicable for  Indonesian case. Suppose that judges political power is weak here, would that be a concern of Legal Positivism? I would say no and that would be enough for the purpose of defending Legal Positivism. From the very beginning, what I want to show through my previous article is that the critics misunderstand the issue. If the judicial branch is weak in Indonesia, it does not have any correlation with Legal Positivism as a theory of law. 

    How Social Facts Are Determined?

    In dealing with Imam's second question, I find it interesting that he made a correlation between public acceptance of judges decision with the normative power of such decision. Should the judges decision be accepted by the majority of the public in order to be eligible to be considered as a valid law?

    As interesting as it may be, it is actually not a question that can be answered by Legal Positivism as a descriptive theory of law. It is again, a question of fact. Legal Positivism only says that law is a social fact, that its existence relies on the acceptance of the majority, including the people and legal authorities.

    However, Legal Positivism is silent on the actual practices of social acceptance because they can have many different forms. Theoretically speaking, we can have a legal system where court's decisions will be automatically considered as an authoritative source regardless of public acceptance of the content, and it is also possible to have a legal system where in order to obtain validity, a court's decision should be accepted first by the majority of the people. Can we use Legal Positivism to endorse the first system against the second one and vice versa? I don't think so.

    In fact, we already have a very good example when we discuss the power of judicial precedents. It is common to aspiring Indonesian law students that in Indonesia (and other civil law countries), unlike in the common law countries, the principle of stare decisis, i.e. that a court's decision will be considered as a binding precedent to be followed by future court decisions, is not applicable. Thus, in Indonesia, future judges are free to disregard previous decisions and make their own decisions for a similar case.

    Will Legal Positivism say that common law stare decisis system is better than civil law system? No. Can Legal Positivism explain why Indonesia and civil law countries choose to abandon stare decisis system? No.

    But I am confident that Legal Positivism can explain to us that stare decisis is not applicable in Indonesia because most, if not all, of Indonesian legal authorities reject the concept. In other words, under Indonesian rules of recognition, court decisions do not have binding precedent power toward future court decisions (at least as of the date of this article). Can this rule of recognition change in the future? Might be, who knows? 

    Can Law and Economics Succeed in Indonesia?
     
    Imam claimed in his article that Law and Economics method will fail as long as the judicial power is not strong enough to uphold any form of legal certainty. I do not think so. After all, judicial branch is just a part of the overall legal system and Law and Economics can become a mainstream legal thought through many windows, including the academic world and other branches of government.

    When Imam mentioned the names of Posner, Dworkin, Barak, etc, I do not think that he discussed their debates in legal theory but more on legal interpretation method. This is not relevant to Legal Positivism. How the judges should interpret the laws is not a question for Legal Positivism (the same mistake made by Dworkin when he criticized Legal Positivism).

    As a descriptive legal theory, Legal Positivism would be more interested on what are the actual methods of interpretation that are acceptable in a legal system. What does this mean? In a situation where there is no clear ground rules for legal interpretation, every system of legal thought can fight for domination.

    As I said in my previous article, Law and Economics was not a mainstream thought in the United States prior to the 1970s era. It was thanks to Richard Posner and many other academics and political patrons that Law and Economics could finally gain a dominant position in the US legal thought. We see more judges using economic analysis in resolving cases.

    How about in the executive branch? It was Cass Sunstein who brought cost and benefit analysis to the next level in the US government regulatory making process through his office, OIRA. Is this because of Legal Positivim? Of course not, it's a political and academic fight. The same thing can also happen in the legislative branch through political process.

    This is what I want to reiterate to the misleading critics of Legal Positivism. If you want to ensure that your personal legal thought (whatever that is) can dominate Indonesian legal thought, it is a waste of time to criticize Legal Positivism because it is not Legal Positivism's mistake in the first place. In short, try other persuasive methods and good luck with that.

  • In Defense of Legal Positivism - A Reply to Imam Nasima


    As the title says, this article is a reply to a very interesting post from Imam Nasima on Legal Positivism Trend in Indonesian Legal System. As interesting as it may be, personally, the article raised a fundamental question, i.e. did Imam and the people he mentioned in his article discuss Legal Positivism as a legal theory or as a method of legal interpretation? If they talked about the second, I'm afraid that there is a misunderstanding here and my gut feeling says that this is a mistake similarly made by the majority of Indonesian legal scholars who deal with progressive legal theory.

    Legal Positivism as explained by HLA Hart does not specifically deal with method of legal interpretation. After all, it is a theory about the law, on why law exists and has authority upon the people. In Hart's view, a rule existing in the society shall be treated as a law when the majority of the people in such society accept the authority of such rule from an internal point of view and the legal officers in such society treat such law as an authoritative source in rendering their decision.

    Hans Kelsen, the father of Legal Positivism in the Civil Law tradition, also holds a similar position, albeit in a more normative way, i.e. that the validity of the laws is based on power conferring norms existing in a hierarchical system until we reach the basic norm where we presuppose the authority of such basic norm. Upon reaching the basic norm, Kelsen believes that the acceptance of the community of such basic norm is basically a social fact, something that cannot be explained by legal theory anymore.        

    Thus, in short, under Legal Positivism, law is a social fact, and to certain extent, it might be just a matter of head count. If most people believe and treat a rule as a law, such rule will eventually be considered as a valid law (of course this is a super simplified version of the theory). This however, brings us to the next question i.e., what's the relationship between Legal Positivism and legal interpretation?

    A book titled: "Between Authority and Interpretation" written by Joseph Raz, one of Hart's best students, can give a good hint that a theory on legal authority does not automatically deals with theory on legal interpretation. In fact, to the best of my knowledge, I do not think that legal positivism endorses certain kind of legal interpretation method over another method.

    This is the crucial point when we deal with Imam's post. From my reading, the critics to Legal Positivism made by the people in his post seem to be confused because they mix up Legal Positivism with rigid textualism. The idea that judges and lawyers should see beyond the text of the law is not an idea rejected by Legal Positivism.

    Hart, which was also a master of the linguistic philosophy, acknowledges that there is a limitation for languages in delivering meaning, namely, there is a penumbra, a condition where confident speaker of the language will have different interpretation of a term. In other words, languages might not be able to convey the full intention of the speaker. And in such case, interpretation would be necessary.

    Granted, in Hart's view, legal cases should be divided into two types, the easy cases and the hard cases whereas in easy cases, legal interpretation should be minimum since the judges will only need to apply the relevant law to the particular facts while in hard cases, judges will have more discretion. But even in easy cases, Hart believes that there are instances where judges do not have to apply the rules due to reasons such as justice and morality.

    Regarding the above division of easy and hard cases, rather than making a normative argument, I think that Hart is making a practical argument, namely, the division is made based on his assessment of judges practices in the real world.

    Most modern legal positivists believe that there is no prima facie moral obligation to obey the law, i.e. that the law does not have the highest power to exchange any moral reasoning that can be used by someone as a reason for action. The authority of the law simply lies in the fact that most of us accept such law as an authoritative source but it does not necessarily mean that we have a primary moral duty to obey the law and disregard any other moral reasoning.     

    This is consistent, I believe, with Hart's theory that law is a social fact. It is the fact in the real world that will determine how the law will be accepted, implemented and interpreted. Hart's theory of Legal Positivism therefore cannot be expected to endorse certain moral values or method of legal interpretation.           

    So what is the real problem here? If legal positivism can accept interpretation of legal texts, why are we still seeing people blaming Legal Positivism for the lack of progressive movements in Indonesia legal community?

    Two possible explanations can be given here. First, the majority of Indonesian judges might actually believe that the law should be interpreted rigidly. Second, rigid interpretation is only being used to justify judges prior belief on certain moral and social issues. For both cases, further research should be done to know what the judges really think. In the United States, such type of research is common because their legal scholars really want to understand how judges will decide cases and what factors will be considered by them. I don't know though about Indonesia or whether our researchers will walk on the same path.

    In any case, given the above explanations, I do not think that Legal Positivism can be blamed for the rigidity of the judges (assuming that is correct). Again, we return to the concept of law as a social fact. Legal Positivism will just say that descriptively, the majority of Indonesian judges adhere to strict textualism. Therefore, we can say that in Indonesia, the use of strict textualism will be considered as an authoritative way of reading the law. That's it. As simple as that.

    Whether having strict textualist judges is good or not is a completely different question and I don't think that Legal Positivism would have the answer because it is not in the scope of a descriptive/positive theory to say about something normative such as, whether we ought to have judges who are not strict textualists and who will consider other norms and values in rendering their decision.

    For me, the fact that Indonesian judges are strict textualists (again, if the assumption is correct since we need more data) does not have any correlation with Legal Positivism. I mean, I am a supporter of Law and Economics movement, who believe that legal rules should be interpreted in a way that maximize efficiency and the welfare of the society, and at the same time, I am also a Legal Positivist. 

    Can that actually happen? Being a Legal Positivist and at the same time becoming a supporter of Law and Economics? Why not? The problem is, Law and Economics is not yet a mainstream thought in Indonesian legal community and therefore, I would safely assume that most Indonesian judges would not taking it seriously, or even consider it as a part of valid consideration in deciding cases.

    But should I blame Legal Positivism for such problem? Of course not. The only reason why strict textualism can become an authoritative method of interpretation is because most of the judges adhere to such method, not because Legal Positivism imposes a normative criteria that good judges should only use strict textualism in order to become authoritative. 

    If say, I would be able to convince most Indonesian judges in the future that Law and Economics is the best method of legal interpretation and most of them accept such theory and apply it in their cases, would not it be that from Legal Positivism point of view, Law and Economics becomes an authoritative method of legal interpretation that should be followed by the judges? This shows that any method of legal interpretation can live side by side with Legal Positivism.

    I think that blaming Legal Positivism for Indonesian judges behavior is misleading. At the highest level, we are dealing with social facts, not normative issues. Prior to 1970s, Law and Economics was not a mainstream thought in the United States, but after the work of many people including scholars, law schools, and NGOs, it became a mainstream thought and currently holds a strong position in antitrust and corporate law cases (though weaker in the field of contracts and torts). The same thing might happen with the legal progressive movements in Indonesia. The question is, do they have a strong basis to convince our judges and lawyers to convert their belief or they simply don't have what it takes to survive in the field of legal theory? Time will tell.  
  • Do Eternal Holy Laws Exist?


    The title of this article is the main question generated by people who believe that there are certain laws which are derived from God or basic moral principles. Thus, these laws would have a holy status and will be perfect and remain unchanged for eternity.
      
    Unfortunately for them, the answer is no. There is no such thing as a holy law and there is no record that a law can be applied without any changes within the past 2,000 years. Law is a social fact and is always evolving. That’s the reality.  

    By social fact, I mean that the basic validity of the law is solely determined by social acceptance, namely that the people within a territory, including their legal officials, accept from their internal point of view that a norm has valid authoritative power as a law.

    How can we know that such acceptance exists? First, we can see such acceptance from how legal officials (such as judges) express the normative aspect of such rules within their opinions/statements. For example, they say that judges ought to adhere to certain norms in deciding cases, that it is the right thing to do, etc.

    Second, we can also see the acceptance of such norm through critical evaluation, meaning that judges who accept such rules criticize others, even themselves, for failing to conform to the norm. Not only do deviations from the norm produce criticism, but such criticism is deemed to be legitimate and made with good reason.

    Based on the above standards, no holy law would exist simply because it is holy or derived from the sky. All “holy” laws receive their holiness status because people treat them as such. And if people cease to treat them as a holy law, such law would also cease to become holy -- and lose its authoritativeness.

    This understanding is very important. In any part of this world, we can say that no laws receive their authoritative status automatically. In modern world, there is certain exhaustive process (ultimately through democracy) that must be done before certain norm can be regarded as a law and enforced by the state/legal officials.

    This might include election of officials by the people, promulgation of the laws by the legislators via voting process, and enforcement of the laws by legal officials (including interpretation of the laws by judges). It is a complex yet necessary process since laws affect how people behave in their day-to-day life.

    However, there is also a twist here. Since law is a social practice, people who believe that certain laws should be treated as holy may gain power through the democratic process. I do not know and cannot predict whether they might ever win, at least in Indonesia, but that should always be taken into our consideration whenever we go to the general election. 

    Next on eternally unchanged laws: if they do exist, there would be no need for interpretation. There would be no exception to the law unless the law says that it can be exempted. More importantly, it will also contradict the practices that have been done by various legal officials and scholars in implementing the law for centuries.

    There are two examples of this: first, the classical Islamic laws on slavery. Some people claim that slavery is entirely prohibited by Islamic law. This is mistaken. Various archaic sources indicate clearly that slavery was a usual practice even hundreds of years after the birth of Islam. You can have sex with your slaves and you are not permitted to release them if your debts exceed your assets.

    Islamic law encourages people to free their slaves, but it does not say that slavery is a prohibited action that will send the owners to hell. Surely if we say that the law should be unchanged, this practice of slavery should also stay provided that you treat your slaves nicely.

    Second is the law on divorce. In classical Islamic law, men can divorce their wives directly without any interference from the court. Yet, Indonesian Islamic law limits such absolute right. A divorce by men will only be valid when the religious court has decided so. Interestingly, the Indonesian Islamic scholars use the sources from Shia schools to back up their opinion.

    The two issues above are just small samples of an even bigger discrepancy between theory and practice. This is a deep theoretical challenge upon those who believe that the law should be applied as it is for eternity. If you accept that the law is perfect, how can you justify any changes to such law? 

    In short, making the claim for an eternal law is easy, but when you face the actual cases in real life, you will soon realize that such law is merely an illusion.
  • Moral Violation and God's Punishment: The Missing Link


    The argument that moral violations invite God’s punishment (such as in the form of natural disaster) is a famous one. In a way, this argument is usually used by its proponents to support moral enforcement. Since God’s punishment will be very costly to all of us, it would be better if we spend our resources to maintain the good morality of society.

    The question is: Is this a plausible argument? The quick answer would be no. Some of the arguments against moral enforcement have already been set out in my previous article. This time around, we will try to take a look at this famous religious foundation of moral enforcement.   

    Saying that God might punish the people for misbehavior and moral violations is not necessarily incorrect. There are certain instances in the Holy Book that give us examples of God’s harsh punishment to those who oppose God’s rules. So we have some precedents here.

    But we need to dig deeper and try to understand the major aspects of those precedents, at least from Islamic point of view. All of those cases happen in the distant past where the prophets and their supporters are minorities, they involve a situation where the prophets have directly informed the people about the possible punishment from God, and there are also preliminary warnings from the nature indicating the coming of a disaster.    

    What can we derive from such cases? God practically works in accordance with modern legal conceptions, i.e. no law shall be enforced to the people without proper and timely public disclosure. By proper, I mean that the law has been disseminated in a way that is understandable to the public. After all, you cannot expect someone to follow your order if they do not have any capacity to understand such order.

    Of course this will be problematic for our modern age since the last prophet of Islam died more than 1,400 years ago. There are no longer direct messenger of God that can actually inform us precisely what God really wants.

    Now, some might argue that the existence of prophet is no longer necessary since the prophet has left us the Holy Book. That might be plausible but not sufficient. Based on the precedents provided by the Koran, God’s punishment was enforced to society where no record of systematic holy book was available. Interestingly, for societies that received a systematic holy book, there is also no record of direct punishment from God.   

    One then can argue that when a society have a systematic rules of moral values, God gives the chance to such society to settle their own problems. Whether they will follow such rules or whether they will prosper or not is simply another case.

    Notice also that once we discussed the history of Islam, we no longer see any threats of punishment from God and the history of Islamic civilization works in accordance with the laws of nature. Some existed for a long time and prospered, some were crushed. But at all time, the civilizations depend entirely on how good they cope with the situation and condition, including in this case, how they apply and enforce the rules.

    And I think this is the correct interpretation. In a world where a prophet still exists and can directly deliver the heavenly message to all of us, people can easily understand what God wants. Then it would be logical for the people to comply with God rules of morality and for God to gives punishment based on a fair warning mechanism.

    But without a prophet, rules become rationally indeterminate, namely that there are various ways to read the provisions of such rules and how to enforce them in practice (i.e. whether they should stay as moral rules or whether they should be formally turned into laws).

    Without any practical authority to determine the absolutely correct interpretation (since no one can speak on behalf of God), how can we expect a fair God to impose punishment in the form of disasters against indeterminate moral violations?          

    Furthermore, there is no way we can actually know whether a disaster is a part of God’s punishment. First, without any authority from God, making the claim that a disaster is a form of God’s punishment is as easy as making the claims that cats and dogs are spies from Mars.

    Second, we can actually say that in terms of fairness, the overall distribution of natural disaster might be fair enough, i.e. that no one in this planet is completely safe from the power of nature. This means that whether you are good or bad, disaster may always occur against you. So how should we interpret that?

    Thus, we should stick with such fact and accept the notion that there is indeed a missing link between moral violations and God’s punishment. Sure, you can always make your own claim, but it is not good enough to justify any moral enforcement attempt.
  • The Impossibility of Moral Enforcement


    Let me start this post with the claim that I am a legal positivist, meaning that philosophically, I believe that the existence of law is based solely on social facts and that a legal system can validly exist without any moral basis. Note this, it doesn’t mean that the law cannot contain any moral values, it simply means that law can be separated from morality issues in order to exist.

    This separation is crucial to understand why I take the position that pure moral enforcement would be an impossible attempt. I will also use the concept of separation of moral and legal issues in Islamic law to support my argument in this post.

    As you may be aware, this world is full with people who believe that the morality of a society must be upheld and enforced even when there is no legal rules relating to such matter. Take the example of Lady Gaga’s concert in Jakarta.

    I am not talking about the thugs who demand the concert to be cancelled since based on the facts on their usual practices, I don’t think that they are motivated by morality issues. It would be more accurate if we explain their motivation from pure economics issues.

    What I am talking here are people who take the issue at face value and believe from an internal point of view that Lady Gaga’s concert adversely affects the morality of our nation and thus encourage the legal authorities to conduct morality enforcement by prohibiting the concert even when the legal basis is ambiguous or even non existent. 

    Suppose that no legal rules exist concerning such matter. Can morality be simply enforced within such condition? The answer would be no.

    First, different with legal rules which are usually accessible to the public and have more certainties with respect to their contents, moral rules do not have clear standards and authorities to which one can ask for a final judgment.

    Second, legal rules exist in order to coordinate the behavior of the people. They exist as a response to social net loss caused by certain actions. While morality rules deal with decencies, things that are good to be followed by a person, where breaching such rules might cause disagreement from other people but not strong enough to justify enforcement (which would always involve costs).

    Here are some examples from Islamic law provisions. Eating pork and drinking alcoholic drinks are both prohibited, yet penal sanctions exist only for being drunk. Why?

    A simplified explanation would be: Because the net social loss of eating pork is questionable and might only affect people in a personal level while drinking problem creates social loss, especially in terms of accidents. Even the United States admits that drinking is indeed a social problem.

    Another example would be the law on adultery. To accuse someone for adultery, you must provide 4 male witnesses with the highest standard of human being. Failure to do this would cause the other witnesses to be deemed of giving false testimony and there is a harsh penalty for that action.

    Interestingly, the privacy rule in Islamic law is also very tight. Not only that you are forbidden to enter into someone’s private property, you are also forbidden to even spying at someone’s house. Breaching such rule will allow the home owner to hit you in the eyes.

    In other words, the entire legal rules on adultery is structured to deal with adultery cases practiced in the public and those that fall under the scope of privacy will be considered as a moral issue. Notice this: Islamic morality will never deem adultery as a permissible act (you are still responsible to God for your personal action), but legal enforcement will only be conducted when clear social loss is established, say due to the public act.   

    This brings us to the third issue. It is possible that moral enforcers might still argue that although breach of moral rules do not cause clear social losses, it still causes losses, at least to the people whose moral values are being harassed by such act.

    I agree, this can be considered as a loss. But since the losses are pretty much subjective and solely related to the moral enforcer’s taste of decency, it is absolutely necessary that these moral enforcers adhere to the strictest standards of good human being. Why?

    You can’t claim that you experience losses because some people are breaching the values that you perceive so highly when you don’t take such values seriously either. So this is a completely different issue with legal enforcement where such standard is not necessary as I argued in my previous article.

    Now the final question for these moral enforcers is: Can you really adhere to your own principles?

    Remember, God hates hypocrites more than people who consciously breach moral rules and admit that they are wrong.  

  • Fairness Versus Efficiency in Law Enforcement


    A recent blog post has caught my attention. It describes another usual day in Jakarta, complete with major traffic jams and motorcycle drivers using the curb lane. The writer, a pedestrian, says he was in a fight with a motorcycle driver who wanted to pass him and kept asking him to step aside.

    Of course, the request was ridiculous. The lane has always been reserved for pedestrians, and they don’t have any legal obligation to let motorcycle drivers use it. Just when the fight was about to turn physical, a police officer came to break things up.

    At first the officer scolded the driver, saying he was violating the law and could be fined. The driver simply replied that he would accept the punishment as long as the officer also fined other motorcycle drivers using the curb lane, and there are many of them.

    Upon hearing that, the officer turned and instead scolded the pedestrian for his refusal to let the driver use the lane. It was a perverse result, showing that the officer was regrettably taken by the driver’s misleading argument.   

    We hear this kind of argument for fairness all the time. If you want to punish me, you should also punish the other people who are involved in the same crime. Or if you want to punish me, you should show that you’ve never done the same thing yourself. Is this argument valid when we’re talking about law enforcement?

    The answer is no. From a legal perspective, I’ve never seen any serious legal philosophers who support the idea that in order to make a valid legal enforcement, legal enforcers must be saints and ensure that all people who commit the same crime will be punished at the same time.    

    From an economics point of view, it would simply be inefficient to have that kind of rule. Imagine the costs if we had to ensure that all legal enforcers possessed the moral capacities of a prophet, being a perfect person who absolutely adheres to the highest standard of moral and religious principles. Where can we find such a great  person?

    Pakistan would be good case study. Pakistani legal officials, who believe they act in accordance with the correct version of Islamic law (unfortunately, it’s not correct), have established a strict rule for becoming a witness in homicide cases. People can only be witnesses if they have certain moral qualities, which include, among others, praying five times a day, never lying and maintaining good hygiene.

    The result? No one has ever been punished for murder under Pakistani Islamic law. Thankfully, that does not mean murderers can run away from their liabilities, because Pakistani legal officials still use the witness standards established under the English law, which is also applicable in Pakistan. But you see the point.

    When police officers are dealing with cases like the one I describe above, they should realize that they can in fact punish a motorcycle driver even if they don’t do the same to other violators. By punishing one driver, they can set an example that they’re going to enforce the law, even if it’s in a random or selective way.

    And such enforcement would be efficient. There are costs for law enforcement, and the optimum crime level might not actually be zero because at certain point, the cost for law enforcement might outweigh the benefits that we expect from reduced crime. This is called diminishing marginal returns.

    Of course, there are situations where we might be required to increase the law enforcement costs for specific crimes (say, corruption). But for traffic violations? Having random or selective enforcement in this case would be sufficient to give the correct signal to violators.

    Sometimes, uncertainty is effective to deter crimes. If you don’t enforce the law at all for traffic violators, they’ll think it’s fine to commit a violation as long as everyone else does, too. But if they know they might be punished, even if it’s just a possibility and not 100 percent guaranteed, they will think again.

    Such uncertain law enforcement will increase the costs of violation and make people more likely to comply with the rules. That’s why law enforcement is still necessary, even when the process is random or selective. So next time a police officer faces a similar case, he should just fine the guy and say to him: “Well, tough luck, sir!”
  • Why the Pure Theory of Law Matters: Understanding the Misunderstood Kelsen (Part 3)


    In the third and also the last part of my article, we will discuss the actual implementation of Kelsen's theory of law and why such theory matters. If you have read all of my previous related posts and you are still reading this post, I must first congratulate you for your persistence and patience. I hope this article would be useful to help you in understanding the basic characteristics of the law. The Validity of Law and the Problem of Bad Laws In my opinion, the most important contribution of Kelsen's theory is the theory that the validity of the laws does not depend on their contents or the values represented by those contents but on: (i) how they were established (i.e. whether they were made based on a correct mechanism set out by higher norms), and (ii) the validity of the higher level's norms which enable those laws to be created. What are the implications? No matter how bad a law is drafted or no matter how ridiculous a law is, as long as the above requirements have been satisfied, a valid law is always a law and people should obey such law. Now, before you claim that I am a supporter of despotic governments who issue laws without any check and balance mechanism, please hold your tongue. If we know and understand that a valid law is still valid even though it is a very, very bad law, we must do our best to prevent such thing from occurring. Kelsen's theory is very useful here because it brings us to the cold reality, i.e., there is always a chance that a law is a bad law, and when such bad law is validly issued, it will become a valid bad law. Then, whether people like it or not, they would need to obey such bad law. Of course people can always disobey that law, but then they would live under the mercy of the officials who implement such law. While there are also mechanisms to review those bad laws in some countries, until a final and binding verdict is issued, those bad laws are still deemed to be valid, and there is no guarantee that the results would be in favor of those who oppose the enactment of such laws. Have you ever counted the amount of bad laws in Indonesia? One good example would be Law No. 24/2009 on the Flag, the Language, the National Emblem, and the National Anthem. You could see my discussion on this law here. This law has caused tremendous problems and uproars among the businessmen and lawyers due to its ambiguity and ridiculous requirements in drafting private agreements. But can we say that this is not a valid law, simply because it is stupid? No, we can't! We have to live with it until the law is amended or it has been judicially reviewed by the Constitutional Court. That's why we should always be mindful to the fact that laws are made by politicians where many interests were intertwined. It is true that the first drafts might be made by professionals legal drafters, but as soon as those drafts go to the parliament's commissions, we can only hope that they make the right judgment and decision (though we clearly know that they fail to do so in many instances). If you ask me, I'm not a supporter of the principle that laws should be made by ordinary common people through the parliament. The fact that these laws were made through democratic process (if we can call this absurd process as democratic) does not necessarily means that the end results would be good. Laws should be made by professionals based on a thorough research among the people. So that the Government can find or at least assess the true needs of the society and stipulate laws that can accommodate such needs. Specific values should be diminished and the Government should focus on stipulating laws that bring the greater good to the society, that could be easily understood by the people and that could be implemented effectively. Looks like an utopia, eh? Law as a Product of Men The next important contribution from Kelsen's theory of law is the theory that essentially, law is the product of men, it is not created by divine powers or supreme intellects. While this concept has been already recognized under the positive theory of laws, Kelsen brings the concept to the next level. Again, this has a deep relationship with his concept about the validity of the law. By rejecting the theory that law is derived from specific values created by divine powers or morality, Kelsen established the concept that the validity of the law is not related to its content. I couldn't less agree. The reason is simple, we can easily assess whether a law is made through the correct mechanism but we can't asses the correctness of a moral or religious value that becomes the underlying principle of the law. Determining the validity of the law based on its values would be horrendous because we do not have a universally acceptable standard and people could always challenge the validity of the laws by too many reasons. There are also other consequences of Kelsen's theory. I know that some prominent legal scholars believe that laws should reflect the values of the society where the laws were enacted. To certain degree, that might be correct, but not always. Imagine the new Qanun in Aceh that permits stoning for adultery. You can see my related post here. The Qanun makers stated that the Qanun is issued in accordance with the cultural believe of the Aceh's society. Assuming that this is true, can we accept this kind of law as the right one? I would say no! And I believe that most people would say the same. According to Kelsen's theory, the Qanun is a valid law. But how about those who believe in the relationship between law and society. Would they have the same view about the validity of this absurd Qanun? Kelsen's theory enables us to have a scientific method in assessing the validity of the law and we should be grateful for that. The Hierarchy of Laws Last, but not least, Kelsen's theory of law helps us to understand the nature of the hierarchy of laws which is very useful when we need to analyze different ranks of law and determine the validity of a law's provision. In Indonesia, Kelsen's concept has been implemented in Law No. 10/2004 on the Stipulation of Regulations where it states the basic hierarchy of Indonesian regulations and stipulates that the power of a regulation corresponds with its level in such hierarchy. There are a huge number of laws out there and there is always a possibility that some laws contravene other laws. This is especially right when we are dealing with the laws of a developing country where the laws are not well harmonized. Without a clear concept of the hierarchy of law, we would be confused in determining which law should be applied where there were two or more contradicting laws. By using the hierarchy of laws and the fact that this concept has been implemented in Indonesian regulations, we would have a solid basis in determining the applicability of valid laws in accordance with its level in the hierarchy, i.e. lower level laws cannot have provisions that contravene the provisions of the higher level laws. If such contravening provisions exist, the provisions of the lower level laws should be deemed as inapplicable. I encourage all lawyers to learn and to fully understand this concept as this is one of the basic skills in doing their job analyzing the regulations. Conclusions We have discussed some important implementations of the Pure Theory of Law and I hope that the discussion can enlighten us with respect to the nature and function of law. In the end, law is the product and tool of men, and therefore, it is up to us to make a law that can bring the greater goods to the society. We also know the danger of having a valid bad laws and we must do our best to prevent such thing from ever happening. Therefore, in the future, I hope, that the drafting of laws could be done by professional legal drafters supported by greater participation of the society.
  • Why the Pure Theory of Law Matters: Understanding the Misunderstood Kelsen (Part 2)


    In the first part of my article, we have discussed the basic concepts of Hans Kelsen's Pure Theory of Law. In this second part, we will discuss the concept of Norms, and the relationship between efficacy and validity of the law.
    Norms, the Hierarchy of Norms, and the Basic Norm A discussion on Kelsen's theory of law wouldn't be complete without discussing the Norms. As I've said previously, according to Kelsen, the law can be viewed as a specific social technique and as a norm. What is a norm? Kelsen describes norm as a rule expressing the fact that somebody ought to act in a certain way, without implying that "anybody" really wants the person to act that way. Further, Kelsen also defines norm as an impersonal and anonymous command (this is made by Kelsen to counter argue John Austin's definition of law, i.e. law as a command from a sovereign). From his definition, we can conclude three important concepts: (i) a norm is a rule that provide certain "guidelines" to its intended subject whereas such intended subject is ought to follow such "guidelines", (ii) a norm is neutral, it is not representing the will and interest of certain people or entity, and the most important thing is (iii) the validity of the norm is not related to the entity which stipulate such norm (that's why it is considered as an impersonal and anonymous command) but on the validity of the norm which gives authority to such entity. Following Kelsen's way of thinking, the validity of a norm (let us call it as Norm No. 1) shall be determined by the validity of the norm having the authority to create/establish Norm No. 1 (let us call this second norm as Norm No. 2) in accordance with the procedures stipulated by Norm No. 2. Logically, Norm No. 2 should have a higher level than Norm No. 1 and both should exist in the same order/system. If not, how can Norm No. 2 create and determine that Norm No. 1 is valid? Thus we've seen the birth of the Hierarchy of Norms. Pretty simple, eh? The process shall be repeated until we reach the highest level of the Hierarchy of Norms, where we will find the Basic Norm. What are the characteristics of the Basic Norm? According to Kelsen, the Basic Norm, unlike any other Norms, is not created in a legal procedure by a law creating organ. It is not -as a positive legal norm is- valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid because without this presupposition, no human act could be interpreted as a legal, especially as a norm-creating act. Among all other concepts that were introduced in the Pure Theory of Law, the Basic Norm is the most controversial one, especially with respect to the presupposition of the existence and validity of the Basic Norm. For some scholars, such presupposition defeats the entire purpose of the Pure Theory of Law to create a scientific legal theory. How could a scientific legal theory explain that the validity of the Basic Norm, which is basically the ultimate source of validity of all other Norms, thus acting as the core of the Pure Theory of Law, depends on a presupposition? I can understand their critics, but in this case, the presupposition should be correct. Citing Kelsen's own words: "The whole function of this Basic Norm is to confer law-creating power on the act of the first legislator and on all the other acts based on the first act. To interpret these acts of human beings as legal acts and their products as binding Norms, and that means to interpret the empirical material which presents itself as law as such, is possible only on the condition that the Basic Norm is presupposed as a valid Norm." Okay, the words might be confusing, but what are the truly meaning of these words? As mentioned in Part 1, apart from characterizing the law as a norm, the Pure Theory of Law also characterizes the law as a specific technique for social organization. The Pure Theory of Law also rejects any attempt to establish a relationship between the validity of the law and any value which may be reflected within such law. A law might be unjust or just, but being an unjust law doesn't necessarily means that such law is invalid. As a logical consequence, when we reach the Basic Norm level, the only way for us to conclude that the entire legal system is valid is by presupposing the validity of the Basic Norm. We need to remember that the Pure Theory of Law is always about the positive laws, laws made by men. Basic Norm as the ultimate Norm which enable all derivative Norms to be considered valid is derived from social facts and such Basic Norm becomes valid, because we assume it as a valid Norm. Let me give you an example: Why we stick with the 1945 Constitution and consider it as the basis of all laws stipulated in Indonesia? It is not a sacred document created by God, in fact it is a document made by a bunch of people that we call as the Indonesian founding fathers, which was later amended by the Indonesian parliament. It was once replaced by another constitutions and then we returned to use it using a decree of a president which is obviously has a lower status than the constitution. Yet, we're still using the 1945 Constitution and we still believe that all regulations in Indonesia should not contravene the 1945 Constitution and that all regulations in Indonesia obtain their validity since the 1945 Constitution allows the stipulation of laws and regulations. Yes, 1945 Constitution can be considered as a Basic Norm, but is it valid because it corresponds with justice or the interest of all Indonesian people? Not necessarily. It was not even drafted by the entire Indonesian people, rather it was made by a committee whose most members were appointed by Japanese government. It is without doubt that some Indonesian people might have different views with the idea of such committee and the content of the 1945 Constitution. Even the drafters of the 1945 Constitution and its amendments could have different views among themselves when they draft the 1945 Constitution. So why? Why we still use the 1945 Constitution? The answer lies in Kelsen's theory, the 1945 Constitution is valid and becomes the source of all Indonesian laws because we assume that the 1945 Constitution is valid. That is the only logical explanation, the principle of legitimacy. That's why Kelsen acknowledged in his "General Theory of Law and State" that the Basic Norm of a legal order can be replaced by a revolution which include the so-called coup d'etat. Validity and Efficacy of the Law Before we move on, let me explain first the meaning of efficacy. Efficacy of the law means the effectiveness of such law with respect to its effect to the society, i.e. the degree to which the law is being actually complied by the society. It is common for us to see laws which are so ineffective that the existence of those laws mean nothing to the society, and other type of laws which are very effective and have a high rate of compliance. The main question is, can we consider a law that is not efficacious as a valid law? In Kelsen's opinion, consistent with his theory, the efficacy of the total legal order is a condition for the validity of the relevant Norms, but not the reason for their validity, because the validity of a Norm depends on whether it is created in a constitutional way or not (please refer to above discussion on the Hierarchy of Norms). Therefore, the degree of compliance of law does not affect the validity of such law. In other words, it is possible for us to have a valid law which has a low degree of compliance or no compliance at law. One example that I could think of would be the regulation that obliges companies that have trade business licenses (SIUP) to submit periodical reports to the Department of Trade. Based on my experience, the percentage of non compliance for this particular obligation reaches 99.9999%. Pretty amazing! There is more to it. Kelsen also acknowledged that a law/norm wouldn't be valid anymore if the total legal system has lost its efficacy. Theoretically, this is correct. Suppose the current Indonesian legal system loses its efficacy, say because of a revolution, where the 1945 Constitution is entirely dismissed and replaced, and the government has been toppled up. Unless there is a new constitution having a transitional provision which says that the remaining laws remain to be valid, we would lose the legal basis to consider that such remaining laws are still valid. However, since the possibility of having such worst case scenario is very rare, we could stick to the basic principle of the Pure Theory of Law, i.e. the efficacy of the law does not affect the validity of such law. I believe that this is a very important concept having significant practical implications, and we shall further discuss such implementation in the last part of my post, where we shall also discuss the implementation of other parts of Kelsen's Pure Theory of Law.
  • Why the Pure Theory of Law Matters: Understanding the Misunderstood Kelsen (Part 1)


    Okay, I know that this blog is made for common readers, but I guess that writing a subject on legal theory and legal philosophy once in a while wouldn't do much harm. Besides, I cannot resist the temptation of writing this post. While Hans Kelsen is known as a prominent jurist and a worldwide respected legal scholar, he could also hold the first rank of the most misunderstood legal scholars of all time. There are so many critics to his legal theory (known as the "General Theory of Law" and the "Pure Theory of Law") that in some cases, his name and theory are recorded in law text books only for the sake of being criticized. Of course, this doesn't mean that his theory is less regarded than other legal theories since debating and criticizing are very usual in a well educated community. However, I feel that those critics are not the result of a correct understanding of Kelsen's theory. Instead, such critics were made on a false ground, a misunderstanding of Kelsen's real intention when he first declared his theory of law to the public. Personally, after reading Kelsen's book, "The General Theory of Law and State," it is very hard for me to understand the basis of the critics and attacks made toward his theory. In my opinion, Kelsen provides a solid basis for lawyers in understanding the law and its basic characteristics, i.e. law as a norm and as a specific technique for social organization. We'll take a look on these issues further (some will be discussed in Part 2). But, for the appetizer, let us discuss first some basic concepts of the General Theory of Law and the Pure Theory of Law. What is the General Theory of Law and the Pure Theory of Law? In my opinion, nothing can better describe Kelsen's theory of law than Kelsen's own words. Therefore, to ensure that my description of this theory could reflect Kelsen's original thought in the highest manner, I will stay as close as possible with the description made by Kelsen in "The General Theory of Law and State." Expect a little bit of copy and paste here. But don't worry, my personal comments will be made separately below. According to Kelsen, the General Theory of Law is a general theory of positive law and positive law is always the law of a define community (such as the law of Indonesia, the law of the United States, etc). Kelsen claims that his general theory is made as a result of a comparative analysis of the different positive legal orders, furnishing the fundamental concepts by which the positive law of a definite legal community can be described. Further, the subject matters of a general theory of law is the legal norms, their elements, their interrelation, the legal order as a whole, its structure, the relationship between different legal orders and finally the unity of the law in the plurality of positive legal orders. This kind of theory must derive its concepts exclusively from the contents of positive legal norms and therefore must not be influenced by the motives or intentions of regulators or the interests of the individuals to which they are the subject of such law, unless these motives and interests are manifested in the material produced by the lawmaking process. In other words, the general theory of law is directed at a structural analysis of positive law rather than a psychological or economic explanation of its conditions, or a moral or political evaluation of its ends. Next, what is the Pure Theory of Law? According to Kelsen, the Pure Theory of Law means that such theory is being kept free from all the elements foreign to the specific method of a science whose only purpose is the cognition of law. Further, Kelsen argues that a science has to describe its object as it actually is, not to prescribe how it should be or should not be from the point of view of some specific value judgments. The latter is a problem of politics, and as such, concerns the art of government, an activity directed at values, not an object of science, which is directed at reality. The Pure Theory of Law considers its subject (law) not as a more or less imperfect copy of a transcendental idea. It does not try to comprehend the law as an offspring of justice. It sees the law not as the manifestation of a super human authority, but a specific social technique based on human experiences. Consequently, it seeks the basic of law, i.e. the reason of its validity, not in a meta-juristic principle, but in a juristic hypothesis, i.e. a Basic Norm, to be established by a logical analysis of actual juristic thinking. My Notes on Kelsen's Theory of Law Referring to Kelsen's thought above, I can conclude that a general theory of law focuses only on the structure and content of the law. It analyzes the law as it is and it is neutral, i.e. it does not question and judge the values or ideas contained within a law which is not the concern of a general theory of law. I find this as enlightening, though I understand that some people may find this idea as distasteful, i.e. how can someone claims that a theory of law should be separated from value judgment, the idea of justice, the idea of good? Wouldn't this provide a theoretical support for a despotic ruler to establish laws in accordance with his own wish and interest, without any accountability and any check and balance mechanism? To tell you the truth, the answers are quite easy. First, a theory of law which depends on value judgment to analyze the law's validity will not work simply because it is impossible to determine a value than can be universally accepted by each and every men. As an example, who can perfectly define the term "Justice"? Even the great John Rawls with his magnum opus "A Theory of Justice," a book that has been prepared by him for more than 20 years, can't provide the perfected idea of justice to which every scholars would agree. The question of justice has been asked even by Socrates and Plato more than 2,400 years ago, and yet we have not resolved such question until today. There is also a greater reason why Kelsen made such separation. As noted above, Kelsen defines law as a specific social technique made by men, and that definition, in my opinion, becomes the core of the structure of Kelsen's theory. To cut it short, Kelsen's theory is methodological (which is in accordance with Kelsen's ambition to establish a scientific theory of law). As such, Kelsen's theory deals with the method of establishing and operating the law, not the background of why such law was made on the first place. As a logical consequence of this theory, the existence and validity of the law are no longer attached to morality, justice, religion, history, etc. Rather, a law would be deemed valid if it is created in accordance with the mechanism set out within a legal order/system (Kelsen believes that a law should be established in a coherent legal order/system, i.e. a positive legal order) and derived from a systematic hierarchy of norms, i.e. a law/norm's validity is determined by the validity of the law/norm having a higher level than such norm (this goes on until we reach the hypothetical Basic Norm (Grundnorm) which will be discussed further below). It is also worth to note that while Kelsen makes such separation in his theory, it doesn't mean that he doesn't care about the value judgment of law. He understand that whether you like it or not, every law in this world must be based on certain value and thus such law can be good or bad, just or unjust. We can't deny that fact. However, Kelsen views this value judgment issues as not an issue of legal theory, but more a philosophical question or political science issue and should be answered by philosophers and political scientists. I would add that economists and sociologists would also be helpful in answering these value judgment questions. For clarification purpose, while I do make a differentiation between the General Theory of Law and the Pure Theory of Law, they are actually inseparable, i.e. Kelsen's theory of law is a general legal theory purified from any non legal elements. This concludes Part 1 from my planned 3 Parts of Post. In the second part, we will discuss the concept of Norms and the relationship between the efficacy and validity of the law.

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