Ruling before the Law: The Politics of Legal Regimes in China and Indonesia by William Hurst (review)

Is it worthwhile to pay serious attention to a narrative made by a foreign (American), non-legal scholar who passes judgment on the administration of justice in Indonesia—moreover, when it is done by way of comparison with China (a country with which Indonesia, over the years, has developed a love-hate relationship)? Would the critical reflection given be useful in the progressive development of law in general or particularly in Indonesia? How would it impact legal thinking in general and specifically in Indonesia? In general terms, the author’s outlook reiterates the importance of the rule of law, even in the face of widespread belief of its impotence.

Quite a number of textbooks as well as legal scientific articles written by Indonesian scholars exist that claim to use a normative or doctrinal juridical method and a descriptive analytical approach.¹ In this academic environment (more often than not neglected by international literature), a sociological-empirical approach to law is automatically considered heresy. Examination of court decisions, legal practice, and even non-State laws (adat, customary laws) is left outside the purview of proper legal scholarship. State law is considered the only (officially acknowledged and recognized) normative truth against which legal practice is tested and evaluated.

Academic discourse on legal practice or the living law is pushed aside. Unsurprisingly, a great majority of Indonesian legal academic works (master theses, doctoral dissertations, and journal articles) focus on uncovering the shortcomings of or debating how, in the author’s view, State law should be interpreted and implemented. Development of court decisions and even application of law in practice, in contrast, is considered negligible, especially in the pursuit of creating a modern rule-of-law State.

William Hurst’s book Ruling before the Law offers a different perspective. The book clearly starts from a normative juridical methodology as understood by Indonesian legal scholars. The author even goes as far as explicitly rejecting the classical rule-of-law parameters promoted by the World Bank and IMF (International Monetary Fund), and also used by a number of foreign academics as a toolkit to assess and evaluate the legal system of non-Western countries.

Going beyond the classic rule of law, Hurst offers a novel conceptual and theoretical framework for understanding the interplay of politics and society, and the legal system, across a wide variety of contexts (4). He further emphasizes that the new conceptual framework is legal regimes, an idea quite different from dominant ideas about the rule of law, yet his regime framework nevertheless specifies principles around which different legal orders are organized in diverse contexts (5).

Apart from this novelty claim, it is immediately clear that the author’s purpose is to trace the evolution of Indonesia and China’s legal regimes over time by employing a two-pronged approach: socio-legal and comparative. Apparently, the author’s point of departure is legal regimes of both countries and how they evolved and have been influenced by changing social-political situations. As such, law is understood in a broader sense than merely State-made law. By focusing, instead, on real cases—civil and criminal court judgments—law is to be understood as one of many discourses available to common people (citizens), to be used or manipulated to further their interests or defend themselves against real or perceived injustice. At the same time, it allows also the measurement of the extent to which political or non-legal consideration (e.g., corruption, favoritism) has influenced the end result.

In the final analysis, if I guess correctly, the author wishes to rectify the existing rule-of-law parameters, which he deemed insufficient to correctly assess the ability of the State (especially non-Western countries) to provide legal certainty and justice for its citizens.

The author’s perspective is comparable—at least it shows some affinity—to Tamanaha’s suggestion to use a nonessentialist or realistic approach to law.² The importance...