The Chronicles of a Capitalist Lawyer

I can still clearly remember how I learn the law during my days at the University of Indonesia. I seldom took any notes, usually I preferred to copy my friends' notes which were available for a cheap price at our beloved copy center, Barel. Most of the time, I sat at the back of the class since I'd already known that I can found most, if not all, of what the lecturers said in the learning materials provided by them in the copy center. And lastly, I usually learned for my exams during the trip from my home to the faculty (which took around 2 hours). As I said in my previous post, life is pretty simple and easy in the faculty of law. I even once declared my faculty as the most relaxed faculty in the South East Asia (that's during my trip for an international student meeting in Korea in 2004 and it is based on comparison with what other students doing in South East Asia, Japan, China and Korea).

I must say though that the above system is not entirely bad. Since the students were not that busy, I had plenty of time to do other activities, including joining student organizations, doing personal research (this is how I can have the time to learn Islamic legal theories), reading other legal materials that were interesting to me, taking as many classes as I want (I once took 8 classes in a semester without any difficulties), and of course, dating my girlfriend who later on became my wife :p.

But I guess I can no longer maintain that learning style in the University of Chicago. Last Thursday, I took a simulation test for a criminal law course concerning criminal attempt (percobaan tindak pidana). Although my quick answers are correct, I can't finished the exam in time! The problem? I used too much time to read the cases which serve as the background for the exam's answers. The cases have been provided two weeks ago to the LLM students, but I only have the chance to read it once and I already forgot everything by the day I arrived at Chicago (just coming out straight from a 19 hours flight). Facing this dreaded fact, I quickly realized that having the ability to correctly analyze legal issues is one thing, but you can't trick the pages that you need to read in order to complete your analysis and make it as a correct one.

So while reading the materials for my corporate law course, I start to understand little by little how the US law schools shape their legal education. This Cases and Materials book is designed so that the reader can't get a full understanding of the legal issues without reading the cases and materials completely. There are no simple summarized issues that can be easily grasped and memorized like in Indonesian law text books. You have to walk through a maze of judges opinions and excerpts of law review articles, and analyze the arguments within before you can reach any conclusion on what you have learned from those materials. Like it or not, you are being forced to read and think it through. But by the end of the day, the concept will stay with you forever.

While I consider this as a good method for studying the law, I also realize that this method requires a lot of preparation and therefore, it's time consuming. I can understand now why people do not recommend us to take more than 4 courses. Heck, I've already spent much of my time just for one course, what about the other 4 courses that I'm also taking? Wish me luck.

You can read the post here. Enjoy.

I've spent the last three weeks collecting law journal articles for my personal research and I was very surprised when I realized that I had obtained around 900 articles from only 20 or so US law professors. I note that Richard Posner and Cass Sunstein are probably the most productive ones. Posner himself has written more than 290 articles for law journals (that's what I've gotten from Hein-Online) and I know that he also write countless books and opinions as a federal judge. So yes, saying that he is a prolific writer would be an understatement.

My first reaction to this fact is making a comparison with Indonesian law professors. Honestly, it is very rare to find Indonesian law professors who actively write their thoughts in Indonesian law journals or books. Heck, it is even harder to find law journals which can survive their first publication. To the best of my knowledge, most professors spend their times writing newspapers op-ed or acting as expert witnesses. It's a pity, but I cannot blame them entirely.

The Problem of Compensation and Lack of Funding

There are two key issues relating to the poor performance of our professors and journals. First, it's the lack of compensation . It's just too small compared to their US counterparts! A US law professor in a prestigious law school can obtain around US$150,000 dollar per year. By Indonesian standards, this is ridiculously huge. Even the salary of a senior lawyer in a first class Indonesian law firm does not reach that amount. The last time I heard about the salary plan for a professor in University of Indonesia, it's around Rp10 million per months or around US$14,000 per year (not clear though whether this is a gross or net amount). For junior or mid term lecturer, the salary is even lower.

The fact that the legal status of some state universities is in turmoil does not help solving the above problem. Not only that it is not clear how universities should be able to procure their own internal funds, the employment status of their lecturers are confusing. What are the incentives then for them to focus on doing useful research and producing high quality academic products?

A major source of this compensation problem is lack of university funding. I must admit, there is a huge discrepancy of school fees between Indonesia and United States and it affects the overall compensation for the professors and lecturers. Imagine this, between 2001 and 2005, my yearly tuition fee for studying at the Faculty of Law, University of Indonesia is around US$250 (assuming that US$1 is equal to Rp9,000). That is 1/192 of my current tuition fee at the University of Chicago. I know that University of Indonesia's tuition fee has increased considerably within the last 6 years, but I am quite certain, it is still far away from our US counterparts.

Tuition fee is the primary source of university funding, other than sponsors and donors. That's the hard fact. Asking universities to cut down their fees while requiring them to maintain or even improve their quality is absurd. Asking the government to finance the entire education costs is also difficult, especially in a period where we don't know whether having a government is worse than having no government at all. Two basic principles that should be adhered: (i) great education does not necessarily have to be cheap and (ii) people should not be discriminated from getting high quality education based on their poor financial condition. The solution? Cross subsidy between the rich and the poor.

Another way for getting fresh money for the University is by finding a sponsor. I applause University of Indonesia's decision to bring Starbucks to the campus. If these shops can attract more money from the rich kids and they are being used to foster the University, why not? Unfortunately, instead of having realistic and pragmatic debates such as does the University get a good deal from this transaction and does the University put the money for good use, we have some ridiculous debates on whether this decision brings the University of Indonesia toward consumerism or whether it is appropriate for the University to bring Starbucks, which is owned by a "villain" (by the way, the said villain's company owns countless major products and brands across Indonesia and I wonder whether people know that they might actually use the products without knowing who own the company, but that's for another discussion on liability of shareholders and their companies), to the campus area.

As long as this funding issues cannot be solved, I do not expect that the life quality of the professors and lecturers can be significantly improved and the incentives for them to perform better are getting smaller. Why do you think that professors choose to write for op-eds instead of journals? It's a gate for becoming famous, and once you're famous, Indonesian people will mostly hear what you said. Then you can become an expert witness or a speaker in seminars and workshops. The payment is quite good. Why bother doing research that produces almost nothing?

Another people may argue that being a lecturer means devoting yourself for the betterment of the society. True, but it is hard to find those kind of people, and even if you find them, how many of them will stay the same for a long time if they can't properly feed themselves and their family. In the end, incentives matter. Compensation means a lot, and you can't expect to have a better compensation with lack of funding.

Lack of Research Culture

This might sound like a broken record, by the second key issue is very typical, there is a lack of research culture in Indonesia. I don't have a solid empirical data to back up my claim, but at least for the subject of law, I have not found any legal groundbreaking ideas for the past 10 years, either in the form of books or journal articles. The days where professors wrote countless books, such as the legendary Subekti and Wirjono Prodjodikoro, are over. I think the only remaining productive legal writer is J. Satrio and that's it. Most professors only publish unedited anthology of their articles and therefore it's difficult to find a coherent and systematic thinking within the book.

I can also tell my experience during my law undergraduate study days. Most of the time, the lecturers have already summarized the reading materials to be read by the students and they instruct to student to purchase those summarized reading materials. Yes, learning is easier by this way, but it also discourage our reading and writing culture which is essential for creating a culture of research! I can tell you that living as a law student, at least in my time, was not that hard. In fact, I had plenty of leisure time during my study. If you really want to advance your own thoughts, there are no other ways than investing your own time to read materials and write by yourself. For some people this is good, meaning that they will have additional time to learn new things without having to cope with too many tasks from the school. The ultimate question is, how many people actually choose this way?

Since the professors and lecturers don't have enough time to maintain their student (i.e. too busy to do other additional jobs), they usually don't give the students plenty of reading materials or ask the students to make papers. Even if they do, papers are usually made in group. Furthermore, since they won't have much time to read too many papers, grades are usually determined by a mid test and a final test. If you have read the summarized reading materials, I can assure you that you should be able to obtain good grades. Thus the vicious circle of our legal education is created. The lecturers have little incentives to conduct academic researches nor to encourage students to do their own research and the students also have little incentives to give extra effort in their study since in the end of the day, they can always survive the test by only reading the summarized reading materials. Life is easier, of course, but it's a dull one.

To solve this vicious circle, there is no way other than giving the correct incentives and I say the first priority should be given to the academics since they are the life and blood of the university. Without them, there would be no one to educate the students. So compensation should be the start.

To close this post I want to show the irony in Indonesia with respect to the quality of the University outputs. The admission test in Indonesian Universities is extremely competitive. I bet that getting admitted at the University of Indonesia is harder than getting admitted at Harvard (in terms of the amount of people submitting their application and the percentage of those who are eventually admitted). Yet, with such rigorous application process, we are not yet able to produce the quality of output as good as Harvard. Isn't that a waste of time? Collecting the best of the best of Indonesian young students but fail to nurture their maximum potential. Let us do what we can to contribute for the betterment of our legal education system.

As previously mentioned in my post, I've been doing a research on the validity of slavery under Islamic Law as a part of establishing a general theory of Islamic Law. While I have collected many new books and law journal articles on this issue, trying to find empirical evidence of how classical Islamic legal scholars took it, I've just realized that I missed one of my important sources that has stayed with me for years, Bidayatul Mujtahid, a superb comparative fiqh book written by Ibn Rusyd, a prolific and famous Islamic legal scholar (though most western people know him as a philosopher rather than a jurist). The book is considered as a masterpiece and is still used in various Shari'a faculties around the world as teaching materials, even though it was written around 800 years ago (or around 600 years after the birth of Islam).

So a couple of days ago, I read again the Indonesian and English versions of Bidayatul Mujtahid and I found out in the Jinayat (penal offenses) section, Zina (unlawful intercourse) sub section, that having an intercourse with your own slave (whether you're marrying or not marrying the slave) is not considered as a penal offense. In fact, Ibn Rusyd states in such sub section that this has been agreed by all of the Islamic legal scholars (as of his time). The sub section also discusses certain other issues such as the legality of having a sexual intercourse with other person's slave (with the master's consent), or whether a father is free to have a sexual intercourse with his son's slaves or a man to have a sexual intercourse with his wife's slaves. Although Ibn Rusyd recorded that Islamic legal scholars were still in debates on the validity of these actions, several of them have already considered those acts as permissible without the necessity of imposing any penal sanctions.

Upon reading this, I quickly understand that slavery is indeed not prohibited under classical Islamic Law. The legal logic is simple: you can't validly have a sexual intercourse with your slave if slavery is legally prohibited. This is also supported with the fact that some scholars allow a person to enjoy other person's slaves with prior approval on the basis of asset's transfer! On technical legal issues, I salute these classical scholars for being innovative, but isn't that mean that slavery still existed even 600 years after the birth of Islam and people still think it as an ordinary legal action?

Now I wonder, if we know that slavery is valid and permissible under Islamic Law, and the Koran never says that it is prohibited, nor condemns the act, can we now prohibits slavery? Under what basis? That this is a law that should be changed in accordance with the situations and conditions? Why can't we do the same with other Islamic law subjects? If we prohibit slavery, can we be considered as breaching God's rules by prohibiting things that have been declared as permissible?

As a separate note, you might be interested to know that modern scholar like Wahbah Az-Zuhaili still allows slavery of women and children in terms of war prisoner to the extent that they can be distributed as war's spoil (ghanimah). You can refer to his discussion in Fiqih Islam Wa Adillatuhu, General Fiqh Section, Jihad - War Prisoner sub section (it's in the 8th book of his book's Indonesian version).

Interesting issues to be followed up. Let's see whether I can finish my research during my study at University of Chicago.

On 12 August 2011, the Indonesian Constitutional Court issued its decision concerning judicial review of Law No. 8 of 1981 on Criminal Procedural Law ("Criminal Procedural Law"). You can download the decision here. Under the decision, the Constitutional Court deemed that the definition of a Witness should be amended from "a person who can give testimony for the purpose of investigation, prosecution, and trial on a criminal case which is heard, seen and experienced by him/herself" to become "a person who can give testimony for the purpose of investigation, prosecution, and trial on a criminal case which is not always heard, seen and experienced by him/herself".

According to the Constitutional Court judges, the definition should be amended since based on grammatical interpretation, the term "is heard, seen and experienced by him/herself" refers specifically to the criminal case itself. As such, such definition will violate the rights of the defendant to bring witnesses that might support him in the trial process such as alibi witnesses that probably do not see, hear or experience the relevant criminal case (because the criminal case does not occur).

I have to say that this is an issue of simple grammatical misunderstanding and the solution provided by the Constitutional Court creates another problem. Grammatically, there are two ways to read the above clause: (i) the term "is heard, seen and experienced by him/herself" refers specifically to the actual criminal conduct; or (ii) the term "is heard, seen and experienced by him/herself" refers to the testimony/information given by the witness in relation to the case at hand. In cases where we use plain meaning technique to interpret the text of law, we must also rely in the principle that plain meaning approach can only be used when it would not lead to an absurd result. Surely, using the first interpretation will bring significant trouble in practice.

As a comparison, under the US Federal Code of Evidence, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of such matter. This is common sense, a witness can only testify about things that he/she really knows. In line with that, I am certain that the second interpretation would fit better in interpreting the definition of witness under the Indonesian Criminal Procedural Law.

In my opinion, the solution of the Constitutional Court might create an issue concerning the competency of the witnesses. First, the fact that they don't see, hear or experience the criminal conduct by themselves does not necessarily mean that their testimony is always relevant to the case. This will open a chance for the defendant to bring any witnesses that can support him even when there is no merit of such testimony to the case, such as testimony on the character of the defendant. Trial process involves emotion and judges are not robots, and thus a good framing of the defendant is always helpful. Is this good or not? Further evaluation is needed but surely this will depend on our taste of morality and human rights.

Second, in worst case scenario, the generality of the wording used by the Constitutional Court may also be used by prosecutors and polices for using witnesses that do not see, hear or experience the criminal case against the defendant. This is surely absurd, but judging from the absurdity of the solution, I am not surprised if polices and prosecutors exploit this loophole. Time will tell.

I find this tragedy as a case with a very interesting legal feature. Basically, a boy who was driving recklessly caused the death of two of his classmates last saturday morning. How do we know about his reckless driving? Prior to their death, one of the victim shared her experience through Twitter, saying that the boy was entering a drag race with his friends as passengers! Then another victim re-tweeted the tweet, confirming the information about the boy's involvement in the drag race (I have to put a caveat here though, re-tweeting a tweet does not necessarily means that the re-tweeted tweet is true). From the news, I understand that there are two other survivors from this accident, which would be helpful as witnesses in the court. However, let us assume in this case that there is no evidence who can confirm the boy's reckless driving that night. Can we then use the written testimony of his dead friends in Twitter as the basis to punish him in the court?

Legally, this would be a challenge. Under Article 162 of Law No. 8 of 1981 on Criminal Procedural Law ("Criminal Procedural Law"), in case a witness who has provided his/her testimony to the investigator dies before attending the trial, his/her testimony can still be read in the court. If the testimony has been given under an oath, such testimony will be treated equally with a testimony given by a witness who attend the trial. If not, I would say that Article 161 (2) of the Criminal Procedural Law will be applicable, i.e. the testimony will not be considered as a valid evidence although the judge can use it as a supporting information in rendering his decision. In any case, if the minimum rule of two items of evidence cannot be satisfied in the court, such information will be useless.

In our case, however, the victims were already dead before they can say anything to the investigator. Thus, I doubt that their testimony can be considered at all. I also doubt that tweets can be treated as as a Letter Evidence (alat bukti surat), since it must be supported with or made under an oath. And even if it can, it will only work if it is used in conjunction with the information found from other evidence (which is none in our hypothetical case).

As much as I am sympathetic with the victims, I must say that I'm in agreement with the law and I would not support using informal written testimony of dead people as a valid evidence even though it might contain a grain of truth. Why? Simply because you cannot cross examine that kind of testimony and therefore it would be impossible to determine its accuracy. After all, everyone can say anything in their writings, including through Twitter, and we can't verify whether they are telling the truth without further examination.

I can only hope that justice will prevail in this case. Remember, under Indonesian Penal Code, causing death of other people due to negligence is a criminal act punishable by maximum 5 years prison. This is not something that you can get off by simply saying that you're sorry.

Oh dear, it seems that I almost forgot the second anniversary of this beloved blog! I've been busy with the preparation for my post graduate study at the University of Chicago Law School, e.g. completing all of my remaining corporate lawyer work prior to leave (so that I won't have any additional homework during my study), preparing my travel to and living needs in Chicago (getting US visa and securing an apartment lease), and pulling together the learning materials (the law school database was opened already in June and I must say that I am overwhelmed with the enormous data, very exciting!).

I hope that I can be more productive in this blog as soon as I have settled my live at Chicago. Stay tune folks.