Ill-functioning states

Ill-functioning states are, ofcourse, a major source of(legal) insecurity, but the kinds of deficiencies and the reasons for them vary a great deal. It may be that war or other major catastrophes have destroyed state institutions or a country may not have enough capable persons to run them.

Here the malfunctioning is a sign of a weak state. But strong, powerful states may also be deficient because of rampant corruption. Often it is a combination of factors that prevent state institutions from functioning properly. In Indonesia, there are two major sets of issues: corruption and clientelism as well as an inadequate legal education. Such education produces a legal profession incapable of contributing to a coherent state legal system. We have already seen that the incommensurability of adat and colonial law has rendered Indonesian law a degree of incoherence. When Indonesia decided to terminate education in the Dutch language in the law faculties but kept to a Dutch-based legal system, the legal profession rapidly lost the language skills necessary to safeguard coherence in legal developments. Instead of seeking a legal education in the Netherlands, lawyers turned to countries of Anglo-American legal traditions. On that basis, they began to install elements from these traditions into Indonesian law without considering the implications for the overall legal system, thereby increasing incoherence (Massier 2008; Bedner 2013). The result is that the Indonesian legal system suffers from serious incoherence, fragmentation, and internal contradictions. The institutions that should counter these deficiencies lack the skills to do so.

Incoherence certainly is an important factor for legal insecurity. But for most people, it comes second to corruption. Put differently, only when corruption is overcome does the issue of coherence show its full damaging impact.

But legal coherence offers no solace for the vagaries of corruption. Local populations are generally less concerned with the state law's internal coherence than with corruption, which they face in all state institutions and which has deprived so many of their land. This is not to say that all civil servants are corrupt and that, in the case of land transactions, all registrars are corrupt and all registrations are therefore incorrect. Nor does it mean that every single court case is decided on the basis of corruption money. What makes the system so uncertain and unpredictable is that everyone at all times has to reckon with the possibility of corruption and incompetence. There is little they can do about it. The judiciary, as the backbone or last resort, should put the rule of law in place. However, it is incapable and often unwilling to do so. Cynics might say that a corrupt administration and judiciary generates certainty: the party that pays most usually wins. Using a more sophisticated argument, Chabal and Daloz (1999) and Schlee (2002) argued that corruption and even warfare follow regularities and therefore, offer a certain degree of certainty and even legitimacy. It is true that as long as Suharto sat firmly in the saddle, his corrupt political system did indeed provide a certain level of certainty to his clientelist networks. However, when armed forces employed and stimulated turmoil after the demise of the Suharto regime, while they may have been successful in staying in power, they seriously destabilised the clientelist networks. Such networks no longer offer the degrees of certainty they once did. Nevertheless, both well-entrenched and unstable corrupt clientelist systems generate welcome inclusion for some and problematic forms of exclusion for others. The fact remains that a state system engrained with unchecked corruption generates grinding injustice. It also generates an enormous degree of undesired uncertainty, especially for those not well-versed in communication with government officials and in playing the different legal system registers and the registers of corruption. As long as corruption remains entrenched in the state and its legal system, its promises of legal certainty remain in vain. Registration systems, meant as the backbone of legal certainty in land issues, are used in the power games to capture land. In those games, registration may offer security for the powerful but the general public will view these registers as a source of insecurity.

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Source: Bedner Adriaan (ed.).. Real Legal Certainty and its Relevance: Essays in Honor of Jan Michiel Otto. Leiden University Press,2018. — 261 p.. 2018

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