Impact of common law on Indonesia´s legal tradition

1. Development of Indonesia? s Legal Tradition This paper is supposed to outline how civil law and common law influenced Indonesia? s Legal tradition. In order to be able to analyze this state of affairs it has to be clarified what the Indonesian legal tradition is and what it states. It is true that the question about the issue of “law and development” are impossible to be separated from the characteristics of the legal system in each country. Therefore to understand the legal system of Indonesia one has to be aware of its legal system. Prior to the advance of foreign colonists to Indonesian land, peoples of Indonesian had its own legal tradition. Indoensia? s legal tradition is the tradition rooted in, developed by, accepted by, and applied within the life of the nation of Indonesia.

The Adat Law is the Indonesian genuine legal tradition. It? s objectives are security, peace and harmony of the community. Deductive the main function of adat law are to remain peace, security and harmony as well as to prevent disorder. Under the adat law the main function of sanction is to recover the harmony that has been disturbed. Adat law performance its existence within the society by providing rules and sanctions and by enforcement procedure.

Dutch presence and subsequent occupation of Indonesia for 350 years has left a legacy of Dutch colonial law, largely in the Indonesia civil code. Following the independence in 1945, Indonesia began to form its own modern Indonesian law, not developing it from scratch, but modifying precepts of existing laws. Dutch legal decisions maintain some authority in Indonesia through application of the concordance principle. After the interdependence the “Principle of Concordantie” declares that all existing laws and regulations shall remain in effect as long as new laws and regulations have not yet taken effect under this constitution.

Therefore three components of adat, or customary law; Dutch-Roman law; and modern Indonesian law co-exist in the current law of Indonesia. In order to understand how Common Law and Civil Law influence Indonesia? s Legal Tradition the term “Common Law” and “Civil Law” has to be clarified. 2. Civil law Civil Law (or civilian law, Roman law) is a legal system originating in Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law.

Historically, a civil law is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Napoleonic, Germanic, canonical, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legal positivism. Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law to be secondary and subordinate to statutory law. When discussing civil law, one should keep in mind the conceptual difference between a statute and a codal article.

The marked feature of civilian systems is that they use codes with brief text that tend to avoid factually specific scenarios. Code articles deal in generalities and thus stand at odds with statutory schemes which are often very long and very detailed. 3. Common Law The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution.

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals. A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action. The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain.

The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails. Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king’s courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King’s Bench, and the Common Pleas.

These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral’s (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. Equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system. Early common-law procedure was governed by a complex system of Pleading, under which only the offenses specified in authorized writs could be litigated.

Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as Code Pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court. 4. Influence and Impact of Civil and Common Law.

The influence of democracy values had impact on the adat law performance process. Evolutionary there is an indication of the predominant role of the adat members. The civil law Is part of the evolutionary progress of the legal tradition. The extent of the influence of civil law tradition over Indonesia? s legal tradition reaches in the areas of Indonesian social life related to trade and commercial activities, particularly the life in national level. It includes civil matters like family and marriage, trade and commercial business and business relation. The civil law is the legal tradition of the European continental nations it was spread all over the world through colonialsm or adaption process.

The basis for all private law applicable in the European group, and former colonies of the European Group, has been the Dutch Civil Code. Subsequent amendments to the Dutch Code were also incorporated in to the Codes for Indonesia as well based on the principle of concordance. The Indonesian legal system is a Civil Law system rather than a Common Law system. As the Indonesian legal system is derived from French and German models, its procedures are entirely different to those in Australia. For example, Civil Law systems do not use juries. Instead, decisions as to guilt or innocence are made by a panel of three judges.

One of these judges is the Chair and is usually more senior than the other two judges. Typically, the judges produce a single, joint judgment It is virtually unknown for a judge to dissent from the decision of the other two members of the panel and dissenting judgments are rarely produced and never released except, recently, in the Commercial Court. Typically, Civil Law judgments are much shorter than Common Law judgments. In Indonesia, for example, the judgment may be only a few pages. In major cases, judgments tend to be long, of a length to be expected in a Common Law Appeal Court, but this is usually because

the Courts often summarise all the evidence in the judgment (This is not usual in Common Law judgments). Legal reasoning to distinguish previous cases and so forth is relatively rare, because Civil Law systems do not have a system of precedent. The common law tradition has been developed by custom, even before there were any written laws. It subsequently applied by courts after the written laws have been commonly developed. Common law also had influence on Indonesia? s legal tradition, although it was more effected by the Civil Law.

Changes in the gate of international trade and investment occurred, Lex mercatoria was introduced. Lex mercatoria is the body of commercial law used by merchants throughout Europe during the medieval period. It evolved similar to English common law as a system of custom and best practice, which was enforced through a system of merchant courts along the main trade routes. It functioned as the international law of commerce. It emphasised contractual freedom and alienability of property, while shunning legal technicalities and deciding cases ex aequo et bono. A distinct feature was the reliance by merchants on a legal system developed and administered by them.

States or local authorities seldom interfered, and did not interfere a lot in internal domestic trade. Under lex mercatoria trade flourished and states took in large amounts of taxation. Influence in international trade and investment can also be seen through international best practice that came with the Common Law. It is the method that has consistently shown results superior to those achieved with other means, and that is used as a benchmark. In addition, a “best” practice can evolve to become better as improvements are discovered.

Best practice is considered by some as a business buzzword, used to describe the process of developing and following a standard way of doing things that multiple organizations can use. Best practices are used to maintain quality as an alternative to mandatory legislated standards and can be based on self-assessment or benchmarking. Best practice is a feature of accredited management standards such as ISO 9000 and ISO 14001. Common law tradition also influences Indonesia? s legal tradition through the gate of International development program. First there would be the scheme of the IMF loan.

It stands for International Monetary fund. The International Monetary Fund (IMF) is an international organization that was initiated in 1944 at the Bretton Woods Conference and formally created in 1945 by 29 member countries. The IMF’s stated goal was to assist in the reconstruction of the world’s international payment system post–World War II. Countries contribute funds to a pool through a quota system from which countries with payment imbalances temporarily can borrow money and other resources. As of the 14th General Review of Quotas in late 2010 the fund stood at SDR476. 8bn, or about US$755. 7bn at then-current exchange rates.

Through this fund, and other activities such as surveillance of its members’ economies and the demand for self-correcting policies, the IMF works to improve the economies of its member countries. The IMF is a self-described “organization of 188 countries, working to foster global monetary cooperation, secure financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the world. ”

The organization’s objectives are stated in the Articles of Agreement and can be summarised as: to promote international economic co-operation, international trade, employment, and exchange-rate stability, including by making financial resources available to member countries to meet balance of payments needs. Its headquarters are in Washington, D. C. , United States.

Furthermore the Scheme of the IBRD loan. It should be explained as follows. The International Bank for Reconstruction and Development (IBRD) is an international financial institution which offers loans to middle-income developing countries. The IBRD is the first of five member institutions which compose the World Bank Group and is headquartered in Washington, D. C. , United States.

It was established in 1944 with the mission of financing the reconstruction of European nations devastated by World War II. Together, the International Bank for Reconstruction and Development and its concessional lending arm, the International Development Association, are collectively known as the World Bank as they share the same leadership and staff. Following the reconstruction of Europe, the Bank’s mandate expanded to advancing worldwide economic development and eradicating poverty.

The IBRD provides commercial-grade or concessional financing to sovereign states to fund projects that seek to improve transportation and infrastructure, education, domestic policy, environmental consciousness, energy investments, healthcare, access to food and potable water, and access to improved sanitation. The IBRD is owned and governed by its member states, but has its own executive leadership and staff which conduct its normal business operations.

The Bank’s member governments are shareholders which contribute paid-in capital and have the right to vote on its matters. In addition to contributions from its member nations, the IBRD acquires most of its capital by borrowing on international capital markets through bond issues. In 2011, it raised $29 billion USD in capital from bond issues made in 26 different currencies.

The Bank offers a number of financial services and products, including flexible loans, grants, risk guarantees, financial derivatives, and catastrophic risk financing. It reported lending commitments of $26. 7 billion made to 132 projects in 2011. Another point of the influence of the common law is through the gate of international funding for development programs. If we talk about the extent of the influence of common law tradition over Indonesia? s legal tradition, it can be stated that it is in all areas of trade, investment, and development- program or activities which show international character.