Doing justice to Indonesia's multicoloured society
A poor woman from Java plucks three cocoa fruits from a plantation, to use as seedlings. The judge convicts her of theft, but she is not sent to prison. This is one of the examples of legal differentiation that Adriaan Bedner, Professor of Law and Society, will be examining in Indonesia. Inaugural lecture 13 October.
Legal differentiation is the process by which an authority attaches different consequences to a particular action for one person than for another, Bedner explains. An example, this time from youth criminal law, is that in the Netherlands we have different rules for young people under the age of 18 than for adults. Yet another type of legal differentiation is where a judge determines that a Sikh may ride a moped without a helmet because the wearing of a helmet would prevent him wearing the turban prescribed by his religion.
In his research Bedner focuses on different aspects of legal differentiation in Indonesia. One important form of differentiation is taking into account local law. Bedner cites the example of the woman who had stolen three cocoa fruits from a plantation. 'In this part of Central Java, according to the local population, using fruits belonging to someone else as seedlings is permitted on the grounds of common law, provided the amount in question is reasonable. And it goes even further: if someone asks you for some seedlings, you have to offer them a selection of your best seedlings.' Large companies such as those managing plantations pay little heed to local laws, and judges are often unaware of the local customs. 'If the judge had included this in his considerations, the actions of the elderly woman would probably have been judged to be lawful, rather than illegal.'
This struggle between national and local legal norms is a topic that has been studied at Leiden University for over 140 years, Bedner explains. Cornelis van Vollenhoven was an important instigator of this research on Dutch-Indonesian law, and he was firm defender of local law. Leiden's Van Vollenhoven Institute is named after him. ‘He was a critic of the plans of the colonial government to impose a uniform legal system on the highly diverse Indonesian society. According to Van Vollenhoven, this did not do justice to the multi-coloured character of the populace.'
Appropriate and fair
One good example of this is family law, where Islamic law plays an important role alongside locally rooted norms. Legal differentiation in this area is unavoidable in observing what is regarded in different parts of Indonesia as appropriate and fair. 'If the state fails to do that, it will lose its legitimacy and its influence over society.' But at the same time, since independence, Indonesia has wanted to unify family law, and it is obliged to bring it in line with international human rights conventions, including in the field of equal rights for women.
Balancing between legal sources
In Indonesia, there is a constant balancing act between different sources of law. Bedner wants to examine which social changes are brought about by national legislation at local level. He is also studying whether Indonesian legal experts have enough interpretation techniques at their disposal to be able to achieve the desired balance between national legal security and local justice, and how this is influenced by the structure of the legal system. ‘Legal differentiation, whether it comes from the legislator or the judge, is the key issue. A lack of legal differentiation, or in other words applying the law indiscriminately, ultimately results in inequality.'