In this book, I examine the legal systems in China and Indonesia since 1949, both in criminal law and civil law (non-family law). Based on extensive fieldwork in urban and rural areas of several provinces in each country, I draw on a comprehensive new dataset, including first-hand observations and interviews, court records and documents, other archival sources, and secondary sources, to engage in what I would call a two-step hybrid traditional-billionist comparison. That is to say, first of all, that I consider that the differences at national level are constant in order to carry out a comparative analysis of local courts in certain regions of each country. At the same time, however, I would like to aggregate into broader models at the national level and compare specific components of the legal system at certain points in time between countries. Such an approach is difficult and has rarely been tried, but promises many benefits for both current and future research. Legal concepts have long attracted much attention and debate, long before Berman or Merryman proposed the definitions I cited earlier. In response to Plato`s illiberal ideal of the “philosopher king” (Plato 1991), Aristotle (reference Aristotle 1984) argued that laws must rule over every human ruler. Cicero took a similar position to strengthen the institutions of the Roman Republic (Cicero Reference Cicero 1928). Locke (reference Locke1690) and Montesquieu (reference Montesquieu1778) also considered legal rules and institutions essential to promote good governance and prevent miserable tyranny. But first Allen “A. V. Dicey, an Oxford historian and jurist, wrote in the context of nineteenth-century British constitutional debates (Dicey Reference 263Dicey 1889) that the rule of law was at the heart of English-language law and political science.
Footnote 1 Soon after, Max Weber and Émile Durkheim emphasized formal legal rationality (albeit of a type that was not necessarily compatible with Dicey`s conception, as it was firmly rooted in the common law tradition) as an essential characteristic of any modern state or political system (Durkheim Reference Durkheim 1978; Weber Referenz Weber, Roth und Wittich 1978, Referenz Weber 1995: 338-43). Analyses of the legal profession have approached this issue more obliquely, examining the role of lawyers, law firms and legal aid groups in effecting change through litigation and other social and political activities (Alford Reference Alford, 1995; Gallagher Reference Gallagher2006; Reference Liu 270Liu2006b; Reference Michelson 272Michelson2006; Alford Reference Alford2007; Reference Stern Stern2011; Givens Reference Givens2013; Liu & Halliday refer to Liu and Halliday2016). However, few researchers have looked directly at the work of lawyers in the courtroom or their influence on judicial decision-making. Others in the same broad tradition have studied the professionalization of judges, while others have studied the effects of activities within the legal system on the perceptions or attitudes of people outside the legal system (Diamant, Lubman and O`Brien refer to Diamant, Lubman and O`Brien, 2005; Gallagher reference Gallagher2006, reference Gallagher2017; Landry Landry Reference, Ginsburg and Moustafa2008). But despite the richness of this literature, they have limited relevance to the topics I want to address. Non-legal actors continue to intervene, but their intervention is becoming more predictable. Eventually, politics returns to a struggle reminiscent of a Hobbesian state of nature, or begins to solidify into a stable set of hierarchical power relations, for “this is the fate of charisma. with the development of permanent institutional structures” (Weber refers to Weber, Roth and Wittich 1978: 1133).
The routinization of charisma in right-wing regimes thus fails or inaugurates a new regime, almost always governed either neotraditionally or by law (or, in some cases, as discussed below, a mixture of both). Unstable conflictual political regimes, interrupted by revolutionary charismatic interventions, which eventually degenerate into less ideological conflicts or give way to more stable, solid and closed political regimes and institutionalized legal systems, are therefore the main narrative of the mobilization of legal regimes. Ultimately, legal regimes are frameworks for relations between institutions and actors that structure the policy for the application of legal norms and the social impact of this application. Legal systems are defined by two key dimensions of policy and not by provisions of formal or substantive law. As already indicated, and building on the Damaska Reference Damaska Framework 1991, legal regimes take shape along two dimensions: the degree of openness or change in policy, and the degree and manner of intervention of non-legal state institutions or political actors in the decision or handling of certain cases by the legal system. Political variables exert a causal influence on the performance of the right-wing regime. But legal regimes, in turn, exert a causal influence on important state and societal dynamics and on domestic relations. With a few exceptions (e.g., Bertrand references Bertrand1995; Buehler & Tan reference Buehler and Tan2007; Buehler Reference Buehler2008), most political scientists have focused on the national or provincial levels of political debate and elite debate. Reorienting research to a lower level of analysis will promote a better understanding of the micro-fundamentals of Indonesian politics inside and outside the legal system. Indeed, there is much to learn from the rapidly growing literature on local governance and autonomy in post-Suharto Indonesia (Kingsbury & Aveling Reference Kingsbury and Aveling2003; Schulte Nordholt & van Klinken Reference Schulte Nordholt and van Klinken2007; Erb, Faucher and Sulistianto refer to Erb, Faucher and Sulistianto, 2009), although these studies have too often been disaggregated only at the provincial level and rarely focused on judicial institutions (for an exception, see Feener Reference Feener2013). Finally, the history of some countries can sometimes show a long-term bias for public or private law.
As I explain in Chapter 2, this is true to some extent for both China (which has often favoured public law) and Indonesia (which has placed more emphasis on private law). Thus, when we examine the legal regime or legal systems existing in a particular State, we must consider public and private systems and institutions separately before we can evaluate them together, because of the fundamentally different political dynamics that underlie each and the different types of social effects that each can produce, as well as the idiosyncratic characteristics of National Contexts. Failure to disintegrate in this way can lead to misperceptions and inaccurate categorizations. Students of socialist law point out that it is generally similar to the tradition of civil law, but with the important addition of class struggle and revolution as supreme organizing principles, in the service of which all other rules and structures must be placed. In practice, most of the analysis of socialist law has focused on legal development and politics in the Soviet Union (USSR). John Hazard set the tone early on, focusing on the early days of the USSR and how divergent lines of thought had influenced the construction of legal systems outside the USSR, including in China (Hazard Reference Hazard 1960, Reference Hazard 1965). Subsequent analyses continued to deal with this early period (Burbank Reference Burbank 1995), but also focused on developments during the Stalinist era (Solomon Reference Solomon 1996) and the Khrushchev years and beyond (Berman Reference Berman 1963; Barry, Ginsburgs & Maggs Reference 260Barry, Ginsburgs and Maggs1979; Solomon Reference Solomon 1997), before the field began to shift from an emphasis on a socialist legal tradition to a stronger emphasis on Russian law and politics, extending into the post-Soviet era (Hendley Reference Hendley 1996, Reference Hendley 1997, Reference Hendley 2017; Goose-Morse Gans-Morse reference 2017). It is also questionable to what extent there has ever been a coherent tradition of socialist law, and whether it has continued to influence legal institutions or legal practice in China since the 1980s.
It is very rare to find hybrids of the rule of law and mobilisation regimes. In fact, mobilization regimes tend to ignore one type of law or another almost entirely. When charismatic authority is successfully enforced and states have sufficiently functional institutions, public law can be used to impose reigns of terror on perceived enemies or challengers.