A myriad of problems creep up Indonesia’s regulatory governance system, which now amounts to tens of thousands.
PSHK’s (2019) records show that regulatory obesity, overlapping regulations, and unsynchronized legislation with development plans are only a small part of the problem. Previous problems have accumulated and inflated policy costs that should have been saved.
The polemic raised the discourse of regulatory reform as an important theme in every legal reform agenda. Slowly, policy options such as simplification, reharmonization, and deregulation were initiated; but all that has not succeeded in providing optimal output.
The stagnation arises because the previous options focused more on handling legislative problems in the downstream region. Meanwhile, upstream of the problem, toxic positivism has played a major role in causing delays in regulatory reform.
Mainstream Doctrine
Being the main stream of many legal studies in Indonesia, the popularity of the legal positivism school cannot be separated from the construction of positive legal understanding in the civil law tradition. So far, the doctrine of positivism has put legitimacy as a determinant of positivity. This variable is also what differentiate between the legal and non-legal rules; positivist intellectuals often associate law as a command because there is an ‘authoritative’ variable.
Kelsen, one of Germany’s most famous positivist philosophers, came up with his slick theoretical concept. According to him, the law must be institutionalized in a unified hierarchy or a pyramid-like norm system. That way, certainty can be appointed as the main goal of the law.
The doctrine of positivism sees law as a scientific-methodological truth that can be distinguished from metaphysical norms such as morality. Up to that point, the construction of positivism is in line with the discourse of regulatory reform, which implies the need for a harmonious regulatory system.
However, the problem is that the flow of positivism is often taken for granted by the majority of legal scholars as dogmatic truth, so that in turn, this tendency raises many anomalies in practice. The anomaly of toxic positivism’s way of thinking appears as an external impact of the hegemonization of the legal positivism doctrine.
What is often forgotten is that the school which is rooted in the idealistic philosophy is not actually an unconditional teaching. The doctrine of positivism contains an unavoidable objective assumption as its weakness: that every law issued by the authority, as long as it is made according to agreed formal procedures, is a priori value-free and inclusive.
However, before that ideal condition can be achieved, there are ‘positive preconditions’ that must be stepped on first and that precondition requires a guarantee that the authority (elected ruler) always adheres to the principles in designing, making and implementing laws wisely for the common good—in line with Rousseau’s image of the social contract.
Thus, automatically, when the positive preconditions are denied, the features that determine the a priori validity of the previous law are impossible to convey.
On the other hand, the internalization of the pure positivism doctrine in the dynamics of legal studies in Indonesia tends to be incomplete. That is because in its implementation, it focuses more on the level of how regulations must meet these positive ‘conditions’; not at the level of how to fix the ‘preconditions’, which is actually the most difficult challenge.
Perhaps, the issue went unnoticed because the positivist proponents believed that the problem could be solved through a formal process; because the law provides an institution for withdrawing mandates for officials who are deemed to have failed to fight for the public interest.
The previous view is conceptually ideal, but the problem is that the tool is not easy to use in the problematic realities of contemporary democracy. Moreover, the meaning of people’s sovereignty has experienced a lot of superficiality because it is only translated in the corridor of people’s participation in the five-year election agenda.
In that scenario, the public is only positioned as a consumer in an electoral political market that makes its control no more than how the market mechanism should work. If the customer (read: electoral voters) is not satisfied with the product (read: executive-legislative performance), then there is no need to buy again (read: re-elect him in the next election).
What they don’t realize is that such apologetic tendencies actually provide immunity for the elected candidates, while in office, to freely avoid billing their promises and being accountable for their performance directly to their voters.
A series of controversies over Indonesian legislation recently proves that the existence of the positivism assumption favors the bargaining position of authority. Representative democracy is defined at the shallowest level. The mandate, which is mostly obtained through a transactional political process, is often used as an alibi to legitimize its political camp as the most appropriate and appropriate authority in translating the legal needs of the community, even though at the same time it is widely rejected by the public. Sandel (2020) calls this kind of phenomenon the ‘Tyranny of Merit’.
Consequences of ‘Purification’ of Law
In addition to its authoritative character, problems also arise because the construction of positivism draws a clear distance between law and non-law.
This separation is claimed to be crucial in order to purify the law from its external factors so that legal normativity will always stand alone (self-grounding). Unfortunately, this perspective is quite naive because it unknowingly denies the existence of group political motives as a superior element in determining policy outcomes.
In contrast to popular opinion which sees oligarchy and democracy as two polar opposites, today’s Indonesian political typology actually provides a large space for both of them to walk side by side (Ridha, 2019). The most recent example may be seen in the polemic of the past Employment Law legislation which vulgarly demonstrated compromise-intervention between employers’ associations and policy makers, even from the very beginning of the planning and preparation of the materials.
Moreover, the purification of law from moral criteria agreed by the proponents of positivism also in turn makes the problem of ethical decadence of public officials, which actually affects the quality of regulatory output, is considered insufficient as a reason to say that a legal product is inherently problematic.
At that point, positivist apologies—that “the law may be immoral” or “the state cannot fulfill all people’s expectations of justice”—usually emerge as the most effective spells to justify deviation.
Practically when a regulation fails to work according to the sweet promises made by its maker, there is a denial that the problem lies in the culture of the people (which do not obey the law), instead of admitting that the substance was indeed problematic from the start. A kind of gap between das sollen and das sein according to many experts.
The construction of positivist thinking demands the totality of the method. No slightest room is given to process defects. This means that the doctrine is not designed to work well in a corrupt democratic landscape. This explains why thousands of rules made by authorities often end up just as command texts that are not implemented.
Beyond Positivism
In its development, post-modernity legal intellectual thought has long sought to leave the positivism paradigm. Apart from being considered no longer in accordance with the demands of changing times, his paradigm of thinking is also seen as too dependent on the will of authority.
According to Douglass-Scott (2013), a new chapter of post-modernity law is characterized by the transition of the role of authority from ‘government’, which is interventionist in nature, to ‘governance’, which is collaborative. This transformation encourages a new wave of intellectual thought that dares to experiment in examining legal issues holistically, with all the slices of socio-humanities phenomena that lie behind it. In turn, this new approach has succeeded in thinning the barriers between politics, law and other disciplines, especially in the social field.
In contrast to the monodisciplinary principle of positivism which seeks to purify law from non-laws, cross-disciplinary approaches, for example socio-legal, are crucial institutions in seeking the widest possible answers to increasingly complex legal problems.
In the realm of public policy studies, for example, the marriage of social theory with legal theory has succeeded in spawning the concept of smart regulation. Gunningham and Sinclair (2017), who developed the concept of responsive law as a basis, prove that the command and control rule model that is coercive and authoritative in character is the main culprit for regulatory failure. According to both of them, public compliance will be easier to form if the authorities are able to manipulate behavior by optimizing a combination of softer policy instruments. For example incentives or disincentives, voluntary instruments, self-regulation and so on, which instinctively have less resistance.
Unfortunately the previous concept, according to pure positivism, will sound counterintuitive because it is considered to mix non-legal approaches into what should be pure law. The shift of actors from authority to non-state will also be seen as making the law potentially seem to lose its legitimacy. This resistance makes it often difficult to experiment on progressive ideas because it is seen as violating positivistic rules that are already rooted in the logic of thinking of the majority of legal scholars.
Learning from Indonesia’s increasingly dilemmatic socio-political situation, we need to openly admit that the positivism paradigm has been left behind. Not only because of the problematic assumptions of positivism theory, but the hegemony of its innate values also hinders the birth of variants of progressive thinking needed in legal reform.
That is why, in addition to seeking planning, structuring on the dimensions of substance, the discourse on regulatory reform also requires stronger penetration into the legal studies curriculum. The mainstreaming of critical paradigms needs to be integrated as one of the strategies for strengthening institutions, especially higher education institutions.
Researcher at Pusat Studi Hukum dan Kebijakan
Email : [email protected]
