Conclusions
An anthropological take on issues of legal certainty suggests that indeterminacy is as fundamental for human existence as determinacy and that social organisation offers varying degrees of determinacy and certainty.
There is, to put it pointedly, desirable and undesirable uncertainty and certainty. Therefore, the issue of legal certainty has to be situated in the context of finding appropriate positions between certainty and uncertainty. Besides, there are different ways of generating certainty. The mechanisms of the state and its laws are only one way of doing this. Our examples of land registration have shown that the state legal system relies on documents. Other legal orders and the orders of clientelist networks and of corruption practices entail different modes of guaranteeing degrees of certainty, each with their own normative register. A system based on documents works well under conditions of a wellfunctioning administrative apparatus but is regarded with suspicion if clientelism and corruption trump proper administration. In such cases, other mechanisms that rely on specific social relations are preferred, which in our case includes the involvement of adat officials. It may offer more certainty and may be less susceptible to illegal transactions, though they are also no guarantee against the corruption of adat officials.People also differ in their desired degrees of certainty, in which issues they prefer freedom, and in which interests they believe should be protected by certainty. Legal certainty on specific issues and interests may be desired by some and seen as an inappropriate constraint of their freedom by others. Power differentials tend to protect the interests of the powerful more than those of the powerless. Thus, degrees and modalities of desired legal (un)certainty tend to be more geared towards the powerful. Moreover, powerful people tend to be better equipped to play on the ambiguities and possibilities entailed in the available plurality of normative registers in such a way that best serves their interests.
However, the ambiguities of plural legal orders may also offer choices to resist undue influence from powerful actors. The example of land registration has shown that less powerful people, under certain conditions and for certain purposes, may also be capable of choosing the option that is best for their interests. Chances are higher if the alternative modes are relatively well institutionalised and if the officials of that legal order are well educated.Democratic rule-making, the issue that was so hotly debated a century ago, somewhat mitigates power differentials and somewhat balances diverging interests. But legal (un)certainty depends on much more. The rule of law is another mechanism to prevent or redress undesirable uncertainty induced by state agencies. There is no doubt that it is crucial to assist ill-functioning states in transforming into better functioning states. Such states should then be bound by the law, guarantee that laws are made according to set procedures, ensure that such laws are enforced, and thus be able to provide a certain degree of legal certainty. But the examples from Indonesia have shown that there are issues for which the rule of law seems to be less well-equipped. One is that legal incommensurability in situations of legal plurality generates much undesirable uncertainty. However, that uncertainty may unexpectedly help one avoid the undesired consequences of legal certainty encoded in one of the relevant sets of rules. Recognition and integration of other types of law into the state legal system are meant to generate legal certainty. But paradoxically, they tend to undermine the foundations of the legal order that is pressed into the moulds of state law and thus create more uncertainty than certainty. Though this has generally been an unintended consequence of rule makers, we have argued that powerful actors often quite intentionally manipulate the ensuing uncertainty (e.g., acquiring land in an illegal or semi-legal way).
The other issue that deserves more consideration from a rule of law perspective is the uncertainty that stems from the rapid succession of often-contradictory regulations. These regulations are enacted at so many different levels and are each cast within their own constraints, possibilities, scope, and aims. This uncertainty generates new degrees of legal plurality that binds law-making at the national and supra-, trans-, and infra-national levels. It even affects states and polities that by themselves may have a low turnover of regulations.
Questions that arise include whether incommensurability and hyperregulation fall within the ambit of the rule of law at all or whether they should be situated beyond its scope? More concretely, is the modus that relies on written documents necessarily and at all times the best way to generate legal certainty? Might the very mechanisms made to generate legal security under certain circumstances add to insecurity instead of providing—partial—security? And what, if any, implications does this have for the way we think about the rule of law? I do not pretend to have an answer to these questions. But I do suggest that they are of vital importance for a well-functioning state and legal order in which citizens may trust that it provides desired degrees of certainty and uncertainty.
Notes
1 I thank Barbara Oomen for her constructive comments on a draft of this essay.
2 For the examples in this section, see Benda-Beckmann and Benda-Beckmann (2013).
3 In his translation of Van Vollenhoven's work, Holleman translates gesteunde nalevingas “attested observance” (Van Vollenhoven 1981, 222) and “guided observance” (229).
4 See, e.g., Li (2001) and Bakker (2009).