The Scientific Characteristics of Legal Science and Their Implications in Legal Education in Indonesia

By Shidarta
This article has been published in the digest of "Law, Society & Development" (LSD) Vol. II No. 2 April-July 2008, pp. 3-6.The digest is published as one of the activities in alliance building, a joint effort between the Law and Society Program-Faculty of Law Universitas Indonesia, Center for Women and Gender Studies Universitas Indonesia, HuMA, and Van Vollenhoven Institute, Faculty of Law Leiden University. The author has given the permission to Prof. Dr. Jan Michiel Otto of Leiden University to refer to this article in his writing entitled "Bringing A Sense of Unity to Legal Science in Indonesia: A Tribute to Prof. Arief Sidharta" (Bandung: Refika Aditama, 2008, pp. 3-6).

Introduction
There has been a classical debate on whether legal studies qualify as a science. Paul Scholten, for example, includes legal studies as part of science, while Langemeijer thinks otherwise[1]. Such a debate relfects the presence of various approaches in legal scholarship, done either by legal academics and practitioners outside the academy.
The following essay will briefly describe the position of legal science in the legal discipline. The presence of legal science is related to its workings, which in turn also affects the substance and methods used in legal studies in the university level.



Legal Disciplines
The complexity in the study and scholarship of legal science is caused by the multiple faces of the object being studied. This causes conceptual problems, yet on the other hand this complexity also results in the object being perenially interesting to various disciplines.
Each discipline has its own standpoints in observing law. Based on these standpoints, the disciplines can be separated into two general groups. One discipline views law based on a position as a player or participant, while the other views law as an observer.
Those of the first group tend to view law at its most basic definition, namely a collection of positive legal norms. Activists of legal dogmatics are among the members of this first group. On the other hand, obervers tend to analyze law through a legal, cultural, psychological or sociological perspective. This latter group is know as the empirical school of law.
These differences resulted in a complex classification in the discipline of law. Some legal experts include both as part of the discipline of law, while others do not. Meuwissen, for example, differentiates the discipline of law into three groups based on the level of abstraction [2]. The least abstract level is legal science(s). Meuwissen specifically uses the plural form 'sciences". He doses not merely include legal dogmatics as part of the group, but also empirical sciences of law [3]. The next level is legal theory in its narrow definition, and the highest level is philosophy of law.
Following the French Revolution, there has been a general tendency to limit legal science as to include merely the dogmatic science of law. Such an approach will severely limit legal science, depriving it of its universalist characteristics. The dogmatic science of law only refers to authoritative and given legal materials.
This condition is less than ideal to allow a dogmatic science of law to perform its role as a practical science. Legal science is expected to be able to asisst in making decisions regarding concret events occurring in the society. In a dogmatic science of law, references used as starting points to make the decisions need to be uniform. Variety is regarded to be dangerous towards legal certainty. Thus, legal science tends to become normative, based on a doctrinal-deductive method of reasoning. The dogmatic science of law tends to focus on the objective meanings of positive norms. The meanings that result from its analyses tends to be particular, based on the context of space and time. It refers to what the law is, instead of what the law ought to be.
Such characteristics of the science as described above clearly differs from the common tradition of science, especially the tradition of positivism and logical empirism. In order to imporve the position of legal science vis-a-vis other sciences, legal positivism and legism were developed. Still, the positivist approach to law also suffers from tis own contradictions, thus the nomenclature 'legal positivism' remains a misnomer. Positivist principles such as logico-empirism, objective realism, reductionism, determinism, and freedom from values cannot be shown precisely within the context of a dogmatic science of law [4].
At the most abstract level of the legal discipline is legal philosophy. It has the duty to find out the essence of law through reflection in general. This is intended to find out the basis for legitimacy and criteria of justice (constitutive and regulative functions of law). In this level, law is no longer reflected as positive norms, but as the principles of truth and justice.
Legal theory is the youngest branch of the legal discipline. It is a metascience of law, whose duty is to provide an explanation to various legal concepts without having to be tied to a certain structure of legal system. These concepts will be beneficial in attempts of lawmaking (rechtsvinding). Legal theory is interdisciplinary, thus providing an entry point for cooperation with other sciences other than law (especially empirical sciences of law) in which such a cooperation doses not materialize in the level of the dogmatic science of law [5].

The Workings of Legal Science
The explanation above shows that the dogmatic science of law cannot work optimally without assistance from legal theory and legal philosophy. Empirical conditions often force the dogmatic science of law to operate outside the preset scenario based on a closed logical system. A clearer ilustration can be obtained by observing the workings of a judge before she decides on a case. There are six steps to be taken by a judge, namely [6]: (a) identifying facts to create a case structure/map which is believed to have happened beyond any reasonable doubt; (b) subsuming the case structure with relevant sources of law, in order that she can put the facts within legal terms; (c) selecting relevant sources of law and regulations, then finding out policies underlying the rules, to result in a coherent structure/map of the rules; (d) connecting the structure of the rules to the structure of the case; (e) finding possible alternatives for the solution of the case; (f) selecting one of the alternatives, to be formulated as the final decision.
The six steps show that the workings of legal science, if merely depends on a doctrinal-deductive method of reasoning based on availabel authoritative sources of law, would obviously be unsatisfactory. When a case structure is to be related to sources of law, the method of reasoning can never be one-sided. Sources of law are often unclear, and need to be interpreted or construed using certain methods. When the rule structure has been defined, and applied to the case structure, there is the possibility of multiple conclusions. One of the alternatives must be selected. Yet, the final decision on this selection is not merely an epistemological issue. Kenneth J. Vandevelde states, "The phrase 'to think like al lawyer' encapsulates a way of thinking that is characterized by both the goal pursued and the methods used" [7]. Vandevelde's 'goal pursued' refers to axiological issues, while 'method used' refers to epistemological issues. Both dimensions have important roles to play, while authoritative sources of law (postive norms in the legal system) cannot provide much guidance. They tend to be limited to the ontological aspect of law.

Considering Legal Scholarship
The colonial period offers a valuabel lesson in the history of legal education in Indonesia. In 1909, when the Rechtschool was founded, the practical need to be solved was to create a body of native rechtsambtenaren, or petty legal officials. Yet, the quality of education in the school exceeded expectations. Many of its graduates succeeded in further scholarship in the Rechtshogeschool (opened in 1924), or even in the Netherlands [8]. Many of them became noted jurists.
It is notable that legal education in Indonesia tends to focus on creating "legal workers" to fulfill the needs of notary and law offices or corporatory legal divisions. The mission is not that different from the Rechtshcool of the early 20th century. As legal workers, they are considered to be adequately prepared, if they can draft contracts, lawsuit or corporatory regulations. This is regarded to be the necessary competence of bachelors. In order to exceed the capability, there are the master and Ph.D. program available.
Current regulations oblige prospective Ph.D. students to have finished a master level education. If the qualification of a Meester in de Rechten in the past is considered to be equivalent to the present day master degree, thus the qualification of a law bachelor is lower than in the past! Yet, various employment opportunities as legal professionals which were open to Meesters in de Rechten in the past are now open for bachelors (although they are obliged to take certain coursed or trainings).
It is urgent that the system of higher legal education in Indonesia be rationalized, in the sense that there should be a standard on the minimal qualifications and competences for each of the levels: bachelor, master, and doctoral. A general suggestion is that each level is to correspond to a level of legal discipline.
Clearly the hightes level of abstraction should be the domain of the doctoral level of education. This level of education should focus on legal philosophy, so that graduates will deserve the title doctor of [legal] philosophy. In other levels, there is indeed some difficulty, as the master level is only created recently to bridge the bachelor level to the doctoral level.
The need to bridge both levels of education is similar to the need to bridge the dogmatic science of law and legal philosophy. Thus it is suggested to focus the education in the bachelor level on the science of law, and in the master level on legal theory. In other words, the higher the level of education, the more abtract it will be.
Certainly "focus" in this sense does not mean that legal theory and legal philosophy should not be taught at the bachelor level. If given at a suitable proportion, students of law will become more enlightened, and the risk of thed dogmatice science of law will be reduced. It should be noted that the public do not merely need law practitioners who can draft contracts, lawsuits, or company regulations, buth they also need scholars who can relect living values, and explain them for the greater good of the society.


Footnotes:
[1] The defense of Paul Scholten was delivered in front of the Netherlands Academy of Science, 1942.
[2] This classification is also included in J.J.H. Bruggink, Rechtsreflecties Grondbegrippen uit de Rechtstheorie (Dordrecht: Kluwer, 1993). It is also suggested to compare the classification to Purnadi Purbacaraka & Soerjono Soekanto, Perihal Kaedah Hukum (Regarding Legal Norms) (Bandung: Citra Aditya Bakti, 1993), pp. 1-3. According to this book, the sciences of law are further divided into science of norm, science of understanding, and science of reality. Legal sociology, legal anthropology, legal psycology, legal comparison, and legal history are included in the latter group.
[3] The term 'empirical sciences of law' is used instead of the term 'sciences of empirical law' as it refers to empirical sciences instead of empirical law.
[4] See in Shidarta, "Misnomer dalam Nomenklatur Positivisme Hukum' (Misnomer in the Nomenclature of Legal Positivism), Journal Era Hukum, Vol. 11, No. 2, January 2004, pp. 1-38.
[5] In general, legal theory needs to work together not only with empirical sciences of law but also other empirical sciences such as linguistics. Legal theory also requires cooperation with formal sciences such as logics.
[6] Shidarta, Karakteristik Penalaran Hukum dalam Konteks Keindonesiaan (the Characteristics of Legal Reasoning in the Indonesian Context) (Bandung: Utama, 2006), pp. 197 et seq.
[7] Kenneth J. Vandevelde, Thinking Like A Lawyer: An Introduction to Legal Reasoning (Colorado: Westview Press, 1996), p. 1.
[8] Soetandyo Wignjosoebroto, Dari Hukum Kolonial ke Hukum Nasional (From Colonial Law to National Law) (Jakarta: RajaGrafindo Persada, 1994), pp. 143 et seq.

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