Is There an Indonesian Constitutional Democracy? Welcoming the War on the Tradition of Meaning

• Author: Pranoto Iskandar
• Position: Centre for Human Rights & Legal Pluralism, McGill University Faculty of Law; The Institute for Migrant Rights, Cianjur
• Pages: 175-191

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2024 e Institute for Migrant Rights Press

is thErE an indonEsian

Constitutional dEmoCraCy?

Welcoming the War on the tradition of

meaning

Pranoto Iskandar

Centre for Human Rights & Legal Pluralism, McGill University Faculty of

Law; e Institute for Migrant Rights, Cianjur

pranotoi@imr.or.id

As far as English language scholarship on Indonesian legal studies is concerned,

“deep empiricism” has now become Indonesia’s very own Leviathan. In this crit-

ical review, I argue that deep empiricism signies the adoption of a singular

understanding of constitutional democracy. As the Indonesian case shows, the

translated constitutional democracy signies a meaning that may not align with

the original meaning of the concept. However, the assumption behind deep em-

piricism is that various questions can be answered without understanding, or at

least vigorously clarifying, their conceptual meaning. Furthermore, it not only

lacked interest in theorising but, more importantly, it failed to provide a more

grounded account of what is actually going on. Worse, it denies the existence

of human agency in the context of making sense of Indonesian legal and con-

stitutional behavior. In other words, the commitment to deep empiricism has

unwittingly led to the denial of Indonesia’s capacity to establish and evaluate its

own desire; that is, making a subjective distinction between what is and is not

desirable.

Keywords: Conceptual Analysis, Comparative Constitutionalism, Legal eory, De-

mocracy.

XI Indonesian Journal of International & Comparative Law 175-91 (April 2024)

Iskandar

176

Melissa Crouch’s Constitutional Democracy in Indonesia is best under-

stood as a cue to narrate not only the contemporary English language

scholarship on Indonesian legal studies but also the general state of

Indonesian studies.1 e background to this book is her e Politics

of Court Reform, published four years earlier as a homage to Daniel

Lev, a pioneer of modern Indonesian legal studies which knows no

disciplinary boundary.2 In her introductory chapter, Crouch makes it

clear that she aims for more than just revisiting and reassessing Lev’s

scholarly footsteps in the light of Indonesian current aairs. Rather,

it appears that she is determined to wholeheartedly carry the torch of

Lev’s “deep research” as the best way of making claims about law in

Indonesia.3 In this review, I point out that Constitutional Democracy in

Indonesia shows Lev’s deep research has failed to live up to the hype. It

can only deliver a supercial understanding of its research subject.

It is therefore imperative to start by clarifying what this is. In

Crouch’s understanding, it is “deeply empirical,” signaling “the

centrality of [Lev’s] commitment to his research and the way his

method informed his approach to the politics of court.”4 Clearly, this

begs further explanation; that is, what does she mean by ‘empirical,”

the most important word in understanding what might be termed as

the “Levian take.”5

To understand its Levian usage, we must revisit the dening debate

between Herbert Feith and Lev on the universalist or the reformist

camp and Harry Benda on the pluralist or the establishment camp.

e debate started with Benda’s scathing review on Feith’s e Decline

of Constitutional Democracy in Indonesia, dealing with the nation’s

1. C D  I, (Melissa Crouch ed., 2023).

2. T P  C R: J C  L C 

I, (Melissa Crouch ed., 2019).

3. Melissa Crouch, e Judicial Reform Landscape in Indonesia: Innovation,

Specialization and the Legacy of Dan S. Lev, in T P  C R:

J C  L C  I 1, 2–3 (Melissa Crouch

ed., 2019).

4. Id. at 10.

5. It is worth noting, the use of the phrase “Levian take” is introduced by Roux.

However, I do not follow Roux’s understanding of the phrase in this paper.

eunis Roux, e Constitutional Court: A Levian Take on Its Place in the

Reformasi, in T P  C R 245, 245 (Melissa Crouch ed.,

2019).