INTERNATIONAL JOURNAL OF INDONESIAN STUDIES SPRING 2016
recognition of ‘ juristic law ’ ( Hertogh , 2009 , 54 ). He proposes an alternative theory of ‘ living law ’ whose values mingle with everyday life even though these values have not been positioned as a legal proposition . Living law is not only directly associated with the State but to the internal orderings of various social groups , and it does not depend on formal recognition from the State . Rather , the people ’ s usage in everyday life determines living law ’ s validity ( Cotterrell , 2009 , 88 ). Ehrlich attempts to position living law into legal discourse , although he has no intention to replace jurisprudence as set out by Kelsen who responded to Ehrlich stating he blurs fact and norm ( Klink , 2009 , 130-133 ).
Ehrlich and Kelsen were highly critical of each other in defending their own opinions . The author is inclined to stand in a neutral position as both theories can be merged and integrated in order to construct a normative ‘ humanistic ’ legal system . The law still doesn ’ t lose its formal form but it is also filled by other external values such as justice and morality . The author rejects the idea of legal exclusivism that means law can only be understood through internal ( judge and legislator ) perspectives or a close logical system while disregarding other external values that may lessen legal certainty and objectivity . In the author ’ s view , law should be inclusive in order to strengthen the idea of justice and fully open access to justice . Judges and legislators have a significant role to balance those values by reflecting on the social context that the law applied .
The living law theory contributes to the emergence of the concept of legal pluralism . Griffith ( 1986 ) identifies the true nemesis of legal pluralism : legal centralism . He was the first to provide a distinction between the so called weak and strong legal pluralism . Weak pluralism , or state legal pluralism , can be seen as the paradox of legal pluralism when the living laws have been embraced and contaminated by the formality of state law ; there is no a pureness of law , but a diversity of legal sources is still exist . On the other hand , strong legal pluralism is a situation in which not all of the law is state law , nor is all of it administrated by a single set of state legal institutions .
Santos ( 1987 ) utilises legal pluralism as a yardstick to enter post-modernism discourse . Formalism ’ s claim that law only operates on a single scale is opposed by legal pluralism that claims there is no single legality , but diverse legalities . Post-modernism rebuts the State metanarrative through its cardinal principles including hierarchical power , legal texts and objectivity ( Stacy , 2001 , 45 ).
In regard to postmodernist ’ s on the Indonesian legal system , there is a sceptical tone , saying that Indonesia is not in a right stage to embrace postmodernism thoughts , because as a developing country Indonesia is still struggling to be a modern country . In other words , any postmodernism discourse is irrelevant to Indonesia . However , the author opposes that statement by arguing both modernism and postmodernism are the product of the European Renaissance which is based on rationality and humanism .
The existence of postmodernism is necessary to fill the gap in the organic life of modernism that preserves the status quo , dichotomises the public and private sphere , and may discriminate against the ‘ have nots ’, which in turn nurtures ‘ the social time bomb ’ that may suddenly escalate into severe conflicts between groups . Therefore , disregarding
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