THE CHRONICLES OF A CAPITALIST LAWYER

RANDOM THOUGHTS OF A CAPITALIST LAWYER ON LAW, ECONOMICS, AND EVERYTHING ELSE

Showing posts with label Personal. Show all posts
Showing posts with label Personal. Show all posts
  • Catatan Akhir Pilpres 2014


    Selama masa Pemilihan Presiden 2014 saya sudah menulis beberapa artikel dimana berdasarkan penilaian saya yang saya usahakan serasional dan seobjektif mungkin, saya memutuskan untuk mendukung Jokowi. Berhubung sekarang sudah memasuki masa tenang dan pembahasan visi, misi, serta program sudah tidak diperkenankan, saya ingin menyampaikan alasan personal atas dukungan saya kepada Jokowi.

    Orang yang lama mengenal saya umumnya tahu kalau saya:
    1. tidak suka dengan orang yang mencla-mencle, asbun, yang hanya pandai bermain kata dan berjualan kecap (silakan lihat tulisan-tulisan saya sebelumnya di blog ini sebagai basis dari pernyataan saya supaya jangan dipikir saya hanya omong kosong saja);
    2. tidak pernah tertarik mendukung seseorang hanya karena isu agama, apalagi kalau melibatkan fitnah segala (saya mendalami Hukum Islam 13 tahun lebih dan masih terus mendalami sampai saat ini, saya hitungannya bodoh kalau masih terjebak isu-isu seperti itu); 
    3. tidak tertarik dengan militerisme dan feodalisme (saya lantang dulu berbicara di depan mahasiswa FHUI menentang segala bentuk perploncoan yang menurut saya bentuk jelas dari feodalisme dan saya tidak pernah mau terlibat dalam semua acara seperti itu);  
    4. mendukung kebebasan berpendapat dan pluralitas (cukup jelas karena hal ini bahkan dijamin oleh konstitusi); dan
    5. tidak percaya dengan segala bentuk teori konspirasi, termasuk berita-berita yang tidak bisa diverifikasi atau berita-berita yang sumbernya sudah diketahui sebagai penyebar kebohongan (salah satu hobi favorit saya: memberi tahu teman-teman yang menyebarkan berita atau informasi hoax kalau yang mereka sampaikan itu hoax);
    6. selalu berusaha sebisa mungkin mengambil keputusan berdasarkan cost benefit analysis (saya melihat orang tidak ada yang sempurna, ada baik dan buruknya, maka harus dihitung lebih besar yang mana, baik atau buruknya?); dan
    7. tidak percaya dengan adanya figur penyelamat dunia dan negara ala ratu adil (satu manusia tidak akan bisa menyelesaikan masalah di Indonesia, manusia bukan malaikat dan selamanya wajib tunduk pada mekanisme check and balance).  
    7 alasan di atas sudah cukup sebenarnya bagi saya untuk mendukung Jokowi. Tetapi ada satu lagi alasan yang mungkin lebih menarik buat diri saya pribadi. Seumur-umur, saya tidak pernah tertarik dengan Pemilu, baik pemilihan legislatif maupun pemilihan presiden. Jujur saja, saya selalu merasa bahwa perubahan signifikan tidak akan terjadi di negara ini dan apapun nanti hasilnya, kehidupan saya tidak akan terlalu terpengaruh.  Walhasil, saya juga tidak pernah datang ke acara kampanye atau apa pun lah itu, apalagi menulis panjang lebar analisis untuk keperluan pilpres yang jelas menyita waktu saya dan tidak dibayar.

    Tetapi nyatanya, saya mau menulis panjang lebar artikel-artikel itu, dan untuk pertama kalinya juga, saya datang dalam sebuah acara kampanye akbar di GBK sabtu tanggal 5 Juli 2014 kemarin. Mungkin ini pertama kalinya ada politisi yang bisa menggerakan saya untuk melakukan hal itu. Dan buat saya itu luar biasa karena saya sangat amat jarang sekali bisa kagum pada politisi (yang menurut saya pada umumnya tidak akan bisa memenuhi standar intelektual yang saya harapkan).

    Untuk itu, hormat saya buat Jokowi. Saya berharap Jokowi bisa membuka peluang bagi generasi baru di kancah kepemimpinan politik Indonesia di luar kalangan yang sudah eksis dari jaman dahulu kala. Jokowi mungkin bukan kandidat pemimpin terbaik di Indonesia, tetapi setidaknya dia yang terbaik bagi saya di antara 2 opsi yang tersedia saat ini, dan sebagai warga negara Indonesia, saya merasa berhak untuk menyatakan sikap saya tersebut.

    Selamat memilih bagi rakyat Indonesia tanggal 9 Juli nanti! May the best candidate win!
  • Birthday of The Capitalist Lawyer - 2nd Edition: Some Reflections on Legal Thoughts


    Today is my 28th birthday and I guess it would be nice to start a-once-in-a-year reflection in my blog (started it in 2009, but completely forgot to follow up in 2010, typical). I will not make any reflection about my life (nothing to reflect, it's a damn good life anyway), so for this year, I'll reflect the development of my own legal thoughts.

    I started my formal legal education in 2001 without knowing a thing about the law, I didn't know whether I will be interested with it or what I will do after I graduated. My primary reasons at that time? Just following my intuition plus chasing my dream of being admitted at the University of Indonesia (my second choice was UI's Political Science, don't ask me why I picked that, cause I can't answer that even until today). So yes, it's more about getting into UI rather than picking a subject that I really like. Fortunately, I was lucky. By the second semester I knew for sure that I love this subject!

    At first, my primary choice of specialization was constitutional law. 2001 was the time where many constitutional law professors secured high positions within Indonesian government. It was a transition era in the Republic and constitutional scholars were needed to guide the process. However, a fated encounter with a really weird lecturer caused me to change my mind entirely. It was so bad that I said to myself, "all the good professors are in the government now and we're stuck with these buffoons. Like hell I will take constitutional laws." So I decided to specialize in other fields: procedural and business laws. Again, I am a lucky guy. Turns out it's a correct decision, as now I work as a corporate lawyer, a profession that I literally enjoy not only professionally, but also academically.

    But those things only affect my professional skills. What really affects and shapes my legal thoughts is a whole different subject of law that I accidentally learned during my law school days, i.e. Islamic legal theory. It started with a challenge from my best friend, saying that I will never master Islamic law, because I can't differentiate the type of waters that you could use to purify yourself (wudhu). Of course, knowing how predictable I am, I took that challenge and soon I regularly went to UI's mosque's library. Although I planned to start with the library's classical Islamic law books collection, I ended up with Islamic legal theories first. And I was impressed, by the 9th century, Islamic legal scholars have already developed a concise legal theory that will put common law and civil law scholars at that time to shame.

    Granted, the current development of Islamic legal theory is pretty much gloomy (no new development), but I learned something from my personal study, the existence of a theory called Istislah or Maslahah Mursalah, which basically states that legal scholars, in the absence of clear legal rules, should take the welfare maximization of the society as a prime concern in deciding cases. The concept is simple, but the insight is very deep. Such insight helped me to think for the first time about what constitutes a good law.

    During my early years, I got an impression that my faculty only taught its students to become technical masters of law. We know the laws, we can easily apply them into concrete cases, and we are proud with that. The famous motto in my faculty, "If you're a law student, always talk with a legal basis." It's nice, but something is missing here. Being a technical master means that you are only acting as a spokesman of the law. You don't care whether it's good or not, heck, that's not even important. This is what I call as an abuse to Hans Kelsen's Pure Theory of Law (See my discussion on Kelsen at here, here, and here).

    So for me, this is non sense. This kind of education reduces the profession of lawyers into simple craftsmanship. Lawyers should be able to do more than that, they should be able to work as policy makers, they should analyze the quality of laws and propose a better version if they think that the current ones suck. Istislah theory helped me to see that error earlier and I am thankful for that.

    Now, when we're eventually getting into the question of what constitutes a good law, there are various methods to determine the standards. I started with the believe that a good law should reflect the society's sense of justice, local wisdom. But that belief didn't last long. Why? I come to realize that there is no standard for reflecting the society's sense of justice. In the end, it will always be a matter of preference. Suppose the society deems honor killing as a part of their justice system, would we still agree to enforce it in the name of local wisdom?

    Logically, I move forward to a standard which seems to be universal and applicable in every situation and condition. So I turned out to legal principles established by religious belief, i.e. Islamic law. Yet, it didn't satisfy me. Years of researches show that other than the agreement among Islamic scholars on the mandatory prayer, fasting, zakat and hajj, there is no unity of opinion in Islamic laws. Cultures or 'urf have a great impact on how scholars interpret the laws and there is a never ending debate on what standards that are deemed applicable for eternity and that are subject to changes. As a result, there isn't any production of worthy new ideas within Islamic law, it's just a repetition of the old ideas and debates that ended in the 15th century. Thus, I concluded that similar to the notion of society's sense of justice, Islamic law is not that reliable for providing a clear standard on what constitutes a good law. FYI, the use of Istislah itself is still controversial within Islamic legal scholars, so that could explain why its development has been halted for a very long time.

    Finally, I end up with the law and economics movement. It's ideas of welfare maximization and promotion of efficiency as guidelines for determining a good law really captivate me. First, I see law and economics as the modern interpretation of Istislah theory, its spiritual successor. Second, since it is a combination with economics, it is easier to assess the standards to determine whether they really work or not (empirical research is very encouraged in this field and I think it is very helpful). Furthermore, economics is a science that can be applied to almost every aspect of human life, so applying such science into legal conceptions prove to be an eye opening of things that we have already taken as granted. The notion that incentives matters still amaze me on how we can use different incentives to structure a law that will work efficiently and to explain the behavior of the people in facing the law and legal enforcement. 

    When I choose law and economics as my primary tool for assessing the quality of laws, I don't close the opportunity of using other helpful methods. No tool is perfect, and maybe in the future, we will develop an even better method for analyzing the law. But until that day comes, I'll stick for a while with law and economics.
  • Going to Chicago Law School


    So I guess it's official. I will be going to the University of Chicago School of Law in September 2011! I must say that I'm very happy and excited with this result. After all, learning Law and Economics at the law school which created this field at the first place is one of my biggest ambitions. But the best part of being admitted at a first class law school like Chicago is that I will have access to "unlimited" legal materials, and not to mention the fact that I will also be able to spend nine months to read and write new materials without being disrupted with my day to day work as a lawyer. Hopefully, I will have more time to write in this blog during my school days. Another advantage is that Chicago is not that far away from Ohio where my Shiye (the teacher of my kung fu teacher) teaches his class of Bajiquan. An opportunity to learn the art from a real living master is surely a big bonus for me, and I can only be grateful for all of these opportunities. Can't wait to go there! :)
  • The Birthday of the Capitalist Lawyer: Some Wishes and Thoughts on Law and Lawyers


    Today is my 26th birthday, so in this special day, instead of writing and analyzing things, let me tell you some of my wishes and random thoughts on my most beloved subjects, law and lawyers. Enjoy!
    1. I believe that laws should be made by professionals not some common people, i.e. the parliament, and I wish that we could achieve that as soon as possible. Of course, the process of recruiting those professionals should be made as democratic and transparent as possible. If not, then we would only have another despotic government.
    2. I wish to have a virtual data base that has complete legal references and sources which have been systematically organized and all I need to do to find them is by one click. That would be glorious.
    3. I wish that I could have more time in learning all the new things about law. Law is a never ending process, continuously evolving in order to achieve perfection. It is really frustrating that I can't follow all of those new developments.
    4. Being a lawyer requires great intelligence, perseverance, persistence, and diligence, but none of them would be helpful if you don't have the passion.
    5. Good lawyers love to be challenged, great lawyers surpass those challenges. However, always remember the golden rule of lawyers: Do not take responsibilities more than you are being paid for.
    6. Never underestimate the usefulness of inputting your time sheets daily.
    7. Commercial pragmatists are the next generation of lawyers, those who can smoothly combine superb legal knowledge with deep commercial understanding of the client's business.
    8. Lawyers are consultants and therefore our job is to help our clients in making decisions not to make decisions by ourselves. See the golden rule above.
    9. If you're only looking for the money, you should not work as a lawyer, since there are other jobs that will give you better income with less working time. But, if you're looking for a respectable profession that can satisfy your pride, you have come to the right place.
    10. If you have worked as a lawyer for years and you still can't gain the trust of your clients, you should stop and pick another career. Without client's trust there would be no business development, no business development means no advance in career, so why bother working as a lawyer?
    11. Doing you best is not enough to reach the top. Always try to surpass your own standard and never be satisfied with your performance even when you think that you have reached the top, there is always a room to grow, a room for improvement. Like my partner once said: "I could never be fully satisfied with my associates since I fear that once I tell them how satisfied I am, they would cease to improve their qualities."


  • The Protection of Criminal Suspects in Law and Economics Perspective

    Forthcoming in Jurnal Teropong Edisi RUU KUHAP 2015 | 23 Pages | Posted: 10 May 2015 | Date Written: April 28, 2015

    Public Choice Theory and its Application in Indonesian Legislation System

    24 Pages | Posted: 8 Oct 2012 | Last revised: 8 Nov 2014 | Date Written: October 8, 2012

    Special Purpose Vehicle in Law and Economics Perspective

    Forthcoming in Journal of Indonesia Corruption Watch, 'Pemberantasan Kejahatan Korupsi dan Pencucian Uang yang Dilakukan Korporasi di Sektor Kehutanan', 2013 | 15 Pages | Posted: 22 Aug 2013 | Date Written: August 18, 2013

    Legal Positivism and Law and Economics -- A Defense

    Third Indonesian National Conference of Legal Philosophy, 27-28 August 2013 | 17 Pages | Posted: 22 Aug 2013 | Last revised: 3 Sep 2013 | Date Written: August 22, 2013

    Economic Analysis of Rape Crime: An Introduction

    Jurnal Hukum Jentera Vol 22, No 7 (2012) Januari-April | 14 Pages | Posted: 12 Nov 2011 | Last revised: 8 Oct 2012 | Date Written: May 7, 2012

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