1. The document discusses the struggle of law in society, particularly as it relates to the poor. It argues that current laws and policies favor the wealthy and punish the poor harshly for minor crimes out of poverty. 2. It analyzes different views on the relationship between law and society. One view sees law as an autonomous system separate from social influences, while another views law as merely reflecting the interests of dominant social groups. 3. The document argues that law has "relative autonomy" from social forces, as it was developed through political struggles for an independent legal realm, but is still influenced by the historical conditions that allowed for its autonomy. It critiques views that see law as either completely autonomous or merely determined

1. 1

2. 2
CONTENT
Law in society’s struggle ........................................................... 4
Dean faculty of law speech ........................................................ 8
Lost in translation: on the failed encounter between bourdieu and
law and society scholarship and their respective blindnesses (yves
dezalay and bryant g. Garth) ..................................................... 10
Rethinking habitus bourdieu in attaining substantive justice ..... 47
Oil palm post illegal logging (a critical analyze on the legal policy
related to border environmental development approach) .......... 55
Criminal law politics to have the multi religious pluralism .......... 76
Habitus constitutional transformation: critical legal studies
abandonment of constitutional rights residents of moro-moro register
45, lampung regency Mesuji ...................................................... 78
The power of sociology of law in the decision
making process .......................................................................... 81
Law and economics "critics analysis of the minimum wages in order
to achieve substantive justice" ................................................... 82
The “thowaf” model in criminal justice ...................................... 84
Globalization and fundamental value of uud 1945 as the social
constitution
(debating state policy within the laws aegis framework) ........... 85
title: position and function of law in society................................ 88
Land tenure rights owned by foreigners In the district
west lampung ............................................................................. 89
The integralistic of criminal law enforcement systems to face the
human trafficking crime.............................................................. 91
Legality versus morality: moral reading and the case of pemilukada
in tulang bawang regency of lampung province ........................ 93
Law and society ......................................................................... 95
Environmental legal protection on coal mining management at the
city of samarinda ........................................................................ 97
The haul fishery profit sharing system based on adat law and act
number 16 of 1964 in muncar subdistrict
of banyuwangi regency .............................................................. 98
Implementation of law number 18 year 2008 to the final destination
of rubbish (the study to the final destination of rubbish or tpa
jatibarang, semarang) ................................................................ 99
Penal mediation as an alternative dispute settlement of criminal
based on the culture society ...................................................... 101
Pluralism law and strengthening state nation ............................ 102

3. 3
“obligation of states to implement the international ship and port
facility security (isps) code in terms of the vienna convention 1969
on the international treaties
(a special study obligations indonesia)” ..................................... 103
State land versus customary lands (a question of existence ulayat
rights) ......................................................................................... 105
Significance of law: reality and utility ......................................... 106
Legal literacy and disparities social justicein Indonesia ............ 107
The local wisdom in environmental protection and abandonment
public participation In development cement factories in pati regency,
central java ................................................................................ 108
The limited ability of law and law anomaly (the myth of the equality
before the law, legal melee syndrome and decadence shaming)109
The protection of constitutional rights of indonesian worker
in abroad .................................................................................... 111
The philosophy and the democratization of education in the context
of sociology of law ..................................................................... 113
Child protection in the case of a criminal offense ...................... 115

4. 4
LAW IN SOCIETY’S STRUGGLE.
"Do Mihi factum Dobo Tibi juice"
(Give me the facts, and I'll give you the law)
Lately we often hear some minor cases that have disturbed
our conscience and our sense of justice have intervened.
Mbok Minah’s cases, an old woman who steal three pieces of
cocoa beans, Rasminah’s case who took away six plates of
her master, and a child who took away the perforated sandals,
have to deal with an uncompromising world, especially for the
poor people, namely the field of law. Not in a half-hearted, the
deeds that they themselves considered was not a crime
should face a maximum penalty of 5 years. This penalty is
such an unreasonably punishment for those who live in
difficulty. They must bear the brunt of poverty in which the
country also contributing on.
Policies that more enjoyed by the have people become the
orientation of government, as if the poor are only being
properties of a country that needs the existence of poor
people. The poor become the object of ethical political masks
of ruling elites and intellectual elite, making the poor as
projects that benefit to the elite, but not very impact to the
change of their lives. A tragic condition in a country which is
rich of natural resources but its peoples does not enjoy the
natural wealth. The constitutional mandate is ignored of hand.
Even, The Papuans have to declare that freedom of the
Unitary State of Indonesia is better because they can manage
the forest as they had already done past through ulayat rights
of indigenous peoples. The government has seized and
disarmed their ulayat rights in the name of sovereignty, in the
name of unity, on behalf of the common good, and makes the
law as an instrument to distribute the forest management
concessions to its cronies around the palace.
Goddess Themis closed his eyes with a black cloth, a symbol
that the law is blind to the social world, and the law has an

5. 5
internal logic separated from social determination. This is what
so called by Bourdieu as “Juridical field”, a structured area
which has a patterned social practice activity, defined
professionally and mono-disciplinal. The logic of the law only
recognizes juridical constructions enacting laws as norms that
must be elaborated by social facts. Unfortunately, social facts
as if are constructed following the rule of law, so that the facts
are forced to conform to the norm of law.
Rigid legal knowledge is specialized with what generally called
"jurisprudence". A study and debate on jurisprudence has split
in to two streams between "formalism" which asserts the
autonomous juridical body in absolute terms in relation to the
social world, and "instrumentalism" that understands law as a
reflection or a means of service to the dominant group.
As understood by legal scholars, particularly those who
identify the legal history with the history of the internal
development from the concepts and methods of law,
jurisprudence formalist sees the law as a closed and
autonomous system that its development can only be
understood in terms of its "internal dynamics". The insistence
on the absolute autonomy of thought and law practice is a
result on the formation of a special mode of legal thought that
its existence is free from any social determination. It can be
tracked from Hans Kelsen thought about "pure theory of law"
which is the ultimate result of the formalists ‘efforts to build the
form of doctrine and rules that are totally independent of the
social problems and pressures, something which its foundation
is within them. For Bourdieu, This formalist ideology, the
professional ideology of legal scholars, has become rigidified
as a body of "doctrine”.
While the instrumentalist point of view tends to understand the
law and jurisprudence as a direct reflection of existing social
power relations, in which the economy determination and in
particular, the interests of dominant groups are expressed.
The law as a means of domination, the theory of the
apparatus, which is turned on by Althusser, has shown
instrumentalists’ view. However, Althusser and structuralist

6. 6
Marxist, the victims of the tradition which still believes in the
economy determination, have been regarded as "the ideology
that only identify its function in society”. Paradoxically, the
structuralists reject the symbols system structure in a certain
case. The form of the juridical discourse has reaffirmed its
"relative autonomy" of ideology. These experts forgot the
social basis of the autonomy, a condition that arises from the
history of the struggle in the political realm, the realm of power,
which must exist for the sake of an autonomous world in which
to bring up and to reproduce a corpus Juridical that relatively
independent from historical conditions that make its
autonomous possible to be created.
Architectural metaphor of base and superstructure usually
become the basics idea of relative autonomy. This metaphor
continues to guide those who believed that they had been
breaking things related to economism (Economism refers to a
tendency within Marxist political practice to emphasize
economic determination so completely that other social
elements-particularly ideological and political-are simply
neglected as irrelevant.).
Yet, the followers of those two schools had forgotten that law
whose special logic, is determined by two factors: first, the
particular power relation that gives its structure and a structure
of a competitive fight, (or more specifically, a conflict that goes
beyond their competence) that occurs in the law, and second,
the internal logic to function juridical things that continually
hamper the various levels of action that will close certain areas
of legal solutions.
This symposium will be very beginning discourses for legal
academics, legal practitioners, and other studies that make the
law as its object, to always conduct a self-reflection of the
existence of law in society; the modern legal problems that
isolated from its social basis have to be solved in order to
achieve the order of harmonic social life; justice and peace.
The law as a means of achieving the happiness of the society
must always put forward in order that the world life is in peace,
always.

7. 7
And I congratulate you, on the formation of center for
contemporary legal studies faculty of Law Semarang State
University. This may be the first step and the contributions of
faculty of Law, especially, and Semarang State University,
generally, to always keep his common sense on the meaning
of law for society.
That’s all and thanks you.

8. 8
Dean Faculty of Law Speech
Dear President Semarang State University who give scientific
inspiration to make this international forum;
Dear the speakers Prof Dezalay and Prof Bryant Garth for
willing to come here to attend our international symposium;
Dear our presenter of call for paper and participant
It has pleassure to meet you in this international forum, where
faculty of law at semarang state university got a dream to
make scientific meeting for discussion on the latest issues of
legal theories. We have such as intellectual culture to access
international debate on jurisprudence discourse, as we know
this forum also as one of part from those intellectual mission.
This international symposium on the thema about Pierre
Bourdieu is very important for the indonesian legal scholar in
general. Because we face difficulties to meet the legal scholar
who expert on Pierre Bourdieu perspective in Indonesia. Who
Yves Dezalay and Bryant Garth invited here for giving us
enlightement to know how the basic concept of philosophy of
sociology Pierre Bourdieu.
Hopefully this conference will be contribute to the intellectual
and practice discource on Indonesian legal theories. Bourdieu
is the one of most influence scholar in the sociology science,
his thought applicable to improve the legal theory from his
persective. So this conference as the future of the Indonesian
legal development related with the contemporary legal studies.
That’s way, at this moment we will launching the UNNES
Center for Contemporary Legal Studies who maintaining and
keeping this power of socio-legal intellectual discourse through
the next program such as research, socio-legal training,
seminar, publication, journal, etc.
Bourdieu tend to develop the sociology of law which is related
with the progressive law by Prof Satjipto Rahardjo. A
perspective to analyze the legal system from social science
perspective. From his theory, we really know that the legal

9. 9
studies became multidiciplinary and systematic ways, it’s
connected with the politics, economics, and culture institution.
Perhaps all of you can enjoy in this symposium and have a
nice discussion.
Dean faculty of law
Sartono Sahlan

10. 10
Lost in Translation: On the Failed Encounter Between
Bourdieu and Law and Society Scholarship and Their
Respective Blindnesses
Yves Dezalay and Bryant G. Garth
Introduction
The hypothesis formulated by Bourdieu about "texts
which circulate without their contexts" applies to the
international circulation of Bourdieu's theories. The reading
and reception of texts outside of their national spaces is
strongly determined by internal battles specific to the field
where the text is received. Those battles determine the
possible usages of imported theories, and notably the
strategic resources that the potential importers-translators
are able to mobilize -- shaped in turn by the internal positions
that they occupy.
This hypothesis provides an explanation for the great
contrast between the strong interest produced by the
publication of Bourdieu's "The Force of Law" in 1987 and the
relatively weak impact of Bourdieu's form of structural
sociology on the research methods and agendas in the Law
and Society field -- despite the fact that Bourdieu is among
the most cited scholars internationally in the social sciences
(Truong and Weill 2012, stating that Michel Foucault is one
and Bourdieu two).
The argument has two parts. First, the influence of
the problematique sketched in "The Force of Law" was
limited by the fact that Bourdieu's sociology of law referred
essentially -- even if not exclusively -- to the legal field as
structured in Germany, leading to an emphasis on the so-
called "professorenrecht." This German structure differs
considerably from the U.S. or English legal worlds from
which the great majority of Law and Society scholars come.
Given this contextual mismatch, any effort to draw on
Bourdieu's approach was bound to involve some
misunderstanding, reinforced by the inexact English

11. 11
translation of juristes into lawyers. The translation obscures
the opposition between European jurists of the state and
Anglo-Saxon lawyers, who are the product of the
autonomization of legal fields at the margin of the state.
More precisely, it obscures the role of the legal field in the
construction of the state in Continental Europe and in limiting
the bureaucratic construction of state power in the United
States.
The recent publication of the lectures that Bourdieu
gave at the College de France in the period 1989-92 "Sur
l'Etat" (2012) permits some partial correction of this
misunderstanding. The lectures suggest lines of reasoning
through which Bourdieu had deepened and enriched the
hypotheses developed more schematically in 1986 in "The
Force of Law." While remaining essentially within the
historical setting of Continental Europe, Bourdieu sketched a
problematique which enlarged both the scope of his analysis
and the object of study. He moved beyond jurists in the field
of state power toward showing the more general play of
oppositions and complementarity between the different
fractions which make up the world of law in relationship to
the holders of state power. The deepening of this
problematique permitted him to open the field of analysis to
other national configurations, such as that which developed
in Great Britain with the reforms of the 17th century civil war.
This enlarged and refined perspective better allows one to
take into account the transformations and breaks that mark
the dramatically changing histories of legal fields, which
involve successive geneses, borrowings, breaks, and even
revolutions which can be characterized as a succession of
golden ages and declines -- far from the grand Weberian
scheme of a linear progression toward rationality and the
autonomy of law.
The first part of this paper will therefore seek to show
that, even if still anchored in Continental European history,
this more recent problematique developed by Bourdieu
offers considerable analytical power that can advance Law

12. 12
and Society understanding of the "Cravath model" of
lawyering (Trubek et al 1994) and the internationalization of
its spaces of practice -- whereby this model is at the same
time the means and the product.
The second part of the paper focuses more on Law
and Society than Bourdieu's approach as such. It suggests
that the analytical power of political and structural sociology
contrasts with the mainstream approach of Law and Society
scholarship. The mainstream approach draws on the
paradigm of Legal Realism -- with corresponding objects and
silences, even taboos -- , which is the product of a particular
history of the field of state power in the United States and the
academic, legal, and political hierarchies produced by that
history. The spread of the Law and Society movement
cannot be separated from the complementary and
contradictory relationship between law professors and social
science researchers. The relationship tends not to favor the
kind of reflexive sociology that we believe, drawing on
Bourdieu, is indispensable to understanding precisely how
hierarchies and links among the academic, legal,
bureaucratic, and activist components of the legal field
determine the problematiques and the objects of the
research that characterize Law and Society. More
importantly and generally, this reflexive sociology is a
prerequisite for the construction of objects of study that do
not simply reflect the more or less dominated positions of the
producers of research in the field of power.
With a few rare exceptions (e.g., Garth and Sterling
1998), this reflexive sociology is almost completely absent in
Law and Society research. Yet the scientific relevance of
Law and Society research and the sustainability of research
that can be condemned quickly to obsolescence for enacting
the role of "handmaidens and sort of technicians that had to
supply the technical answers to legal scholars who then had
to (1) frame the problem and (2) analyze what the data really
meant" (Rita Simon in Garth and Sterling 1998: 459). Our
second point, therefore, is that it is important to interrogate

13. 13
the sociological contradictions that place obstacles in the
way of this more reflexive line of sociological research. We
ask why the reflexivity central to Bourdieu's research is
almost completely neglected in the borrowings and
references to Bourdieu.
-I - From the legal field to the national field of state
power
Bourdieu wrote relatively little about law after his long
theoretical article, "The Force of Law," published in 1986.
After that effort, he did not return to this theme outside of a
few short texts: "Les robins et l'invention de l'Etat” (pp. 539-
48 in La noblesse d'Etat (1989)); "Les juristes, gardiens de
l'hypocrisie collective” in Chazel and Commaille (1991);
"Esprits d'etat: genese et structure du champ
bureaucratique” (1993). In contrast, he made a number of
references to the history of law and lawyers on the occasion
of his last series of courses on the state offered at the
College de France in 1991 and recently published as Sur
l'Etat (2012).
These recently published documents illustrate how
Bourdieu had deepened his analysis beyond the theoretical
hypotheses developed in "The Force of Law." Bourdieu
moved in this later work to treat the legal market more
generally and underscored how the demand for legal
services was in large part constructed by what the producers
offered. His course of lectures examined the genesis and the
reproduction of the holders and producers of legal capital in
relation to the different powers of the state, a theme that he
had only treated in a relatively elusive manner in "The Force
of Law."
This historical focus on the "clerks" of the law, termed
the "robins," is somewhat more narrow than the topics of
"The Force of Law," but this focus permitted Bourdieu to
refine his analysis considerably, notably going beyond the
fundamental and over-simplified opposition between
theoreticians and practitioners that Bourdieu had borrowed

14. 14
from Weber. Thus, in his course, he took some distance from
the very Weberian conception of a "professorenrecht"
dominated by the theoreticians of "pure law" by underlining
that " legal capital is not only a capital of theories .... but it is
a species of permanent exchange between practical
innovations ... and theoretical innovations destined to
legitimate small conquests in practice” (2012: 533).
The Internal Fights between Fractions of Jurists as
Fundamental to the Diversification of the Legal Field
Drawing on the works of historians (Kelly 1981, Baker
1990), he proposed an "analysis of the world of the 'robins' in
terms of the field, that is to say a differentiated space" (2012:
516). He then opposed various fractions of jurists
differentiated by their social origins, their education, and their
proximity to royal power.
The first group is jurists of the state who contributed
to the creation of the authoritarian state. They represent
what can be termed the bureaucratic pole of the legal field or
the party of the crown. They are opposed by a different
fraction of the "noblesse de robe," the "officiers de justice,"
those who inherited the control of the High Courts of Justice.
The ideology and objectives of the latter group were inspired
in part by the British model. They relied in particular on one
key institution, the Parisian Parlement, to which the king had
delegated the power of applying the law -- setting up legal
autonomy as a limit on royal power. The third category is that
of the "lower legal clergy ... speaking and being
spokespersons for the collective will, popular will, etc.,
according to the transhistoric alliance between 'the
intelligentsia proletaroïde' as Max Weber pointed out and the
popular classes" (2012: 515). The French Revolution
disrupted this hierarchy in favor of the third category, which
succeeded in imposing its conception of the nation state as
the sole legitimate form of the modern state and then
appropriated "the quasi-monopoly of profits associated with
this institution" (2012: 544).

15. 15
The power of this analysis is that it opens up a fluid
conception of the legal field as a "space of many dimensions
[where] things shift in relation to each other" (2012: 518).
The positions of the holders of legal capital are quite mobile,
since the clerks can operate between many different spaces.
They can modify their strategies and the positions they take
in relation to the historical and political context that valorizes
one or another of these spaces.
This conception of the legal field as a crossroads1 is
quite rich from a heuristic point of view because it introduces
the possibility of using the same general paradigm to
examine different national histories of the state and the law
(2012: 556). By way of illustration, we can show how this
problematique helps to explain the genesis of the British
model of the rule of law -- constructed against the
bureaucratic doctors of Roman law who served as officers of
the royal bureaucracy.
Common lawyers vs. officers of the king
The barristers from the time of the Fifteenth Century
were trained at the Inns of Court through a process that
could last ten years and could be compared to education at a
“finishing school” (Prest, 1986). Those who accumulated
sufficient social and learned capital were predisposed to
serve as agents and intermediaries for the monarchy or for
the landed aristocracy -- defending independence against
royal or religious power. They provided advice and resolved
disputes, serving also as Justices of the Peace. The
autonomy of the bar was therefore constructed on the basis
of capital and activities attuned not only to legitimation, but
1
This conception was developed by Christopher Charle in
1989 in a short programatic note where he defined legal
professions as "crossroads professions where social capital is
converted easily into diverse other forms of capital: economic,
intellectual, political" (1989: 119).

16. 16
also to maintaining equilibrium within the field of political
power.
Since they were recruited from within the elite of the
landed gentry – and to some degree from the new merchant
bourgeoisie –, the barristers trained and socialized at the
Inns of Court were predisposed to become the
representatives of the two social groups to which they were
well introduced. These learned gentlemen became both the
champions and the guardians of an equilibrium among
various powers against the absolutist claims of the monarchy
supported by the bureaucrats and jurists of the state. The
parliamentary monarchy that emerged then favored the
emergence of a new elite – the practitioners of the common
law – at the expense of the old elite -- the doctors of Roman
law -- which had served the leaders of the royal bureaucracy.
While retaining their privileged relationships with the
new ruling classes whose interests were now represented in
Parliament, these legal practitioners succeeded in
legitimating their jurisdictional monopoly and affirming their
autonomy with respect to the holders of power. This strategy
of autonomization was facilitated by the fragmentation and
decentralization of the field of power in the context of a civil
war and religious battles favoring the emancipation of cities
and the growth in power of an alliance between the gentry
and the merchant bourgeoisie. The strategy also drew on a
mode of familial reproduction through co-optation and
apprenticeship under the aegis of the Inns of Court, which
reinforced the sociological homogeneity of this professional
guild dominated by a hierarchy of barristers controlling the
judicial power and the learned authority of the law.
This double control of the production of law and the
reproduction of lawyers allowed the barristers to thrive from
the litigation market. Their monopoly gained credibility
because it rested on the affirmation of the need for the law to
be independent with respect to the holders of state power –
whether central or local. At the same time, however, the
guild structure kept the bar very closed and small in number

17. 17
and promoted the decline of the role of the Inns of Court.
Intellectual activities diminished at the Inns and they lost
their role in educating the inheritors of the elite of the gentry.
Internal fights as a factor in the recomposition of legal
fields: geneses, golden ages, decline
Even though Bourdieu failed to develop certain lines
of comparative analysis himself, he had the insight to see
how the fluidity of the world of the state jurists permitted
them to serve as go-betweens among different fields of
power and successive variations of the field of state power.
Drawing on Skinner (1978), he stressed "the role of the great
religious ruptures in the construction of the state" (Bourdieu
2012: 528). Still, however, he did not develop this direction of
his research, which without citation has much in common
with the theses offered by Berman in his Law and Revolution
(1983). Consistent with Bourdieu's basic hypothesis, internal
fights are crucial to the history of legal fields, including both
the period of their geneses and also their crises and
recompositions.
Pursuant to this diachronic approach to the legal
field, Bourdieu explores the central hypothesis of a parallel
genesis for law and the state, a theme that he took up again
in his article in 1993. As a counterpoint to this line of
research, he also interrogated the effects of contradictions
which are the source of tensions, crises, but also of
innovations and inventions in the legal field. He remarks also
in passing that the internal confrontations between different
fractions may degenerate into fratricidal battles so violent
that they can sap the fundamentals of the credibility of the
field, by means of a kind of suicidal collective madness
among various fractions of elites, totally intent on
disqualifying their opponents, even if it means undermining
their own symbolic capital.

18. 18
A double game between the fields of power
By comparison with what he wrote in "The Force of
Law," Bourdieu insisted in these courses on the genesis of
legal capital through competitive struggles between religious
and royal power: "The jurists, at bottom, served the Church
and used resources furnished largely by the Church to
construct the State against the Church.... The State was
constructed on the model of the Church, but against it"
(2012: 526). The strength of these lines of analysis was
shown brilliantly later by Brundage (2008), who in great
detail reveals the complexity of the strategies of those with
law degrees playing simultaneously in the religious hierarchy
and in the royal bureaucracies.
In what Brundage describes as a kind of "managerial
revolution," the very expensive (2008: 274) acquisition of
legal learning in Medieval and Renaissance Italy appears as
the golden path to riches and the accumulation of powers of
influence for children of noble lineage. For them, it
represented a scholarly reconversion which valorized their
relational capital (2008: 267). Their careers then moved
quickly because their status as jurists permitted them to
serve both as counselors to kings and princes, but also to
the Catholic hierarchy. Indeed, grateful for the service of
such counselors, powerful protectors extended the influence
of jurists by providing educational stipends and offering
ecclesiastical positions to graduates of the University of
Bologna and its imitators. Brundage reports that this was the
case for a third of the German bishops.This double game
was not only very profitable, but it also represented a
prudential strategy, since it offered a variety of positions to
accommodate an historical context where counselors had to
find ways to avoid being the first victims of antagonisms
between competing protective powers.2 The success of this
2
As an example of these double careers, consider the
trajectory of Thomas Arundel (1353-1414) (Brundage
2008:392). This son of an Earl was successively Chancellor of

19. 19
strategy is evident from the fact that these “learned”
managers and counselors were able to insinuate themselves
within the entourage of both princes and the Church, where
they dominated the Curie at the end of the XII century
(Brundage 2008: 132) and even ultimately at the level of the
Papacy, with a succession of popes trained as Doctors of
Cannon Law.
Legal capital as inheritance or scholarly merit:
accumulation and contradiction
Bourdieu also suggests a hypothesis that might be
developed fruitfully to better understand the later evolution of
legal fields. Apart from these battles of positions in relation
to church and state politics, he also notes the structural
contradictions inherent in the reproduction of legal capital,
since legal capital comes both from inheritance and from
scholarly achievement. On the one hand, it is a cultural
capital that is defined in opposition to aristocratic capital or
nobility, giving value to individual merit and scholarly
competence rather than inherited title or family lineage -- the
diploma as against the title of nobility. On the other hand,
Bourdieu observes that it is a matter of a false opposition
since the doctors of law seek to be recognized as a
"noblesse de robe." In the top judicial hierarchy of France,
for example, the holders of “legal offices” purchased from the
King defended the principle of dynastic reproduction against
meritocratic promotion (2012: 510).
As mentioned briefly before, this claim to the status of
nobility is sustained also by the importance of barriers to
entry -- as much cultural as financial -- that may reserve
access to the schools of law only to the most privileged of
England and Archbishop of Canterbury and had numerous
proteges who themselves accumulated top bureaucratic
positions -- Treasurer of England, Chief Justice, Constable of
Bordeaux -- as well as ecclesiastical ones -- Papal Chaplain,
Auditor Apostolic Camera, Archbishop of England.

20. 20
the "cadets" of aristocratic lineage -- sustained in their
studies by their families or as beneficiaries of the support of
powerful religious or civil protectors. As mentioned above,
grants of an ecclesiastical stipend were critical for these long
and costly studies (Brundage 2008: 121).
Martines further shows that this mobilization of family
capital in legal careers was not limited to scholarly
investment (1968). In fact, the first stage in the most
successful of these careers involved an early succession of
diplomatic tasks that permitted the accumulation of
diversified relational capital from the holders of state power,
princes of the Church, monarchs or condotierri. And there
too, the support of great names -- one's family or supporters
-- was indispensable to be recognized and received. The
advantage of family wealth and prominence was also quite
direct. Family financial support was usually indispensable to
get through the courses in an ambiance where expected
sumptuary demonstrations would likely exceed any stipends.
This phenomenon of the conversion of the social
capital of family lineage into learned legal capital, which
opened the door to careers in the state, was not limited to
the period of genesis during the Renaissance. Karady, for
example, describes a very similar process in Hungary before
the Second World War (Karady 1991, see also Dahrendorf
1969 for the faculties of law in Germany after the Second
World War). This mechanism for the conversion of cultural
capital into state capital through investment in legal learning
was also exported to colonial societies including notably
Latin America and Asia (Dezalay and Garth 2002, 2010). In
the case of Brazil, Misceli (1983) has shown that the
construction by Getulio Vargas of the institutions of a modern
state -- by opposition to the patrimonial and clientelistic state
-- was nourished by the reconversion of inheritors of old
families from the sugar oligarchy of the Northeast, at that
time in decline, into the new notables of the state and politics
-- thanks to the legitimacy of their law degree.

21. 21
This strong complementarity between family
inheritance and a legal diploma -- which Bourdieu
designated the "diploma of the bourgeoisie" -- did not mean
that there were no tensions between these two types of
personal resources. More precisely, there is an opposition
between different fractions of jurists who seek to valorize one
or the other of the forms of capital valued in the field. The
inheritors of the “noblesse de robe” oppose the new arrivals
seeking to make a career of their learned competence, their
personal merits, their managerial skills, or their eloquence on
behalf of the disadvantaged. Nevertheless, the members of
the “noblesse de robe” -- and also their descendants --
almost by definition occupy the dominant positions in the
hierarchy of the field, drawing on a structural tendency
toward the valorization of family reproduction at the expense
of the more intellectual fraction within the legal field,3 which
is also a source of obsolescence or even decline. This kind
of process has not been documented by legal historians,
since most often these histories are written by and for jurists
and therefore serve, as Bourdieu emphasizes, "an internal
history, a history without agents" (2012: 536). But one can
find nevertheless numerous indicators of this very general
tendency toward the relative demise and obsolescence of
academic legal capital.
The most flagrant example is doubtlessly the
evolution of the Inns of Court in Great Britain, which lost all
intellectual function following the triumph of barristers who
then imposed recruitment by co-optation and apprenticeship
in conformance with their social origins and political strategy.
Elsewhere, one can see this propensity in the histories of
faculties of law when they become places for the
reproduction of doctrinal exegesis, dominated by the
3
Cf. this famous statement of a senior judge in the French
Cour de Cassation, in mid 19th century, who was the son of
one of the leading writers of the Code Napoleon: "There is no
better guarantee of good justice than a good name."

22. 22
"guardians of the temple and the texts," seeking to minimize
jurisprudential evolutions and refusing to take into account
new social realities. As Bourdieu remarked in the conclusion
of "The Force of Law," it is then the dominated of the field or
new arrivals who are constrained to invest in the renovation
of jurisprudential science. They may, for example, import
from social science with the aim of gaining recognition within
the law for the new social interests which they seek to be
spokespersons for within the legal field.
The effects of these internal fights quite often are
very beneficial to the legal field generally in terms of
innovations, but the process can be quite dramatic and
conflict laden. As Bourdieu noted in passing (2012: 502), "At
the core of the field, one kills oneself for things that are
imperceptible ... little changes which, often, are not
intelligible except to people who operate within the particular
universe." Opposing sides may be completely taken by the
logic of symbolic confrontation. They may even fail to see
that "they may be in the process of sawing off the branch on
which they are sitting. Very often, the dominant group can
contribute to weaken the fundamentals of their domination
because, taken by the logic of the game ... they forget that
they go a little too far." The "passion of internal fights" may
therefore become a suicidal enterprise.
To be sure, in European societies, the process of
decline that come in part from resisting any innovation -- or
more precisely, the loss of credibility in law that results --
typically takes place very slowly, especially given the weight
of the capital accumulated over a period of centuries and
inscribed in institutional, symbolic, and linguistic structures
endowed with a certain permanence.
In contrast, as we have seen elsewhere (Dezalay and
Garth 2010), in colonized societies where the investment in
the law is deeply implicated in colonial and post-colonial
politics, this process of losing credibility may be much more
brutal and more immediate. Indeed, while quite often the
military regimes of the Cold War provoked and accelerated

23. 23
this devalorization of the legal field, the process of losing
credibility was already underway because of the political
strategies of notable politicians of the law who had abused
their double positions in the state and in the law4 in order to
privilege the interests of the oligarchical elites to which they
also belonged.
Still, as we have shown elsewhere (Dezalay and Garth
2012), we see the same conjunction of devalorization of
legal capital at the expense of political strategies in
European societies between the two world wars, then again
in the Welfare States after the Second World War. Even
though attenuated in contrast to post-colonial states, lawyers
lamented the "decline of law" according to a formula
articulated notably by grand professors such as Georges
Ripert and also by young progressive judges such as the
members of the “Syndicat de la Magistrature,” who sought to
mobilize to restore the credibility of law -- and therefore also
their own authority in the field of power -- drawing on new
ideals combining “l’Etat de droit” (from the German notion of
“RechtsStaat”) and social justice.
Rather than serving as an exception to the
hypotheses that we have sought to develop, the legal field of
the United States can be analyzed according to the same
problematique. In fact, the re-invention of the Cravath model
(Trubek et al. 1994) was accomplished through a
reinvestment in the production and reproduction of legal
learning, parallel with the launching of reformist political
strategies at the domestic and international level. These
activities addressed an enduring weakness in the social
credibility of law according to a process quite analogous to
the situation in other societies constrained to gain a distance
with a colonial legal order which left a strong mark on them.
4
Cf. the comment by Nehru that his peers in the law had
"purloined the Constitution."

24. 24
Towards a new genesis: post colonial reinvention and
hybridization across the Atlantic
The transplantation of the British common law, and
the leadership role of lawyers in the colonies and in the
move to independence, paved the way for lawyers and legal
legitimacy to become central to the U.S. state. Despite some
challenges to their authority, as in the Jacksonian era,
lawyers have played a very prominent role in the state and in
the economy in the United States. By the late nineteenth
century, in addition, the new breed of corporate lawyers was
assuming the position at the top of the legal hierarchy.
Lawyers were not of course unchallenged. Their ties
to England and the common law did occasion criticism, as
did links through business and kinship to local elites. The
Jacksonian era is usually presented as the high water period
of those attacks (Konefsky 2008: 77). The bar began to grow
as restrictions on membership were lifted, but there were still
by 1860 “only a few cracks in its façade of social class”
(Konefsky 2008: 86). Stratification within the legal profession
began toward the middle of the 19th century to be identified
much more with clients as corporate wealth began to build.
Railroad attorneys emerged as part of what Konefsky
describes as “a segmented and stratified profession …
reinforced by social kinship and family networks” (2008: 89).
Lawyers began to concentrate increasingly in cities, to form
partnerships, and to specialize in the representation of
corporate interests. As the century came toward a close and
U.S. industry expanded, the emerging law firms that served
them began to occupy a unique social position between
business and the state.
The main appeal – and success – of the law-firm
model rests precisely on the fact that it facilitated this
concentration and circulation of resources. Its purpose from
inception was to provide the “robber barons” with an
indispensable instrument for realizing their projects of
industrial restructuring and concentration of financial capital.
In the meantime, it also enabled these entrepreneurs to

25. 25
reinvest the substantial profits gained from their business
activity into the education sector, notably by setting up and
funding law schools, as well as in the state, by supporting
reformist policies at home and exporting a combination of
“moral imperialism” and “dollar diplomacy” abroad (Dezalay
and Garth 2010).
It is on the basis of this double authority, both moral
and political, that the law firms of the Cravath model have
been able to impose themselves in business circles, where
they have contributed to consolidating industrial dynasties by
inciting the robber barons to rebrand themselves as
philanthropists and invest in the production of knowledge, in
order to encourage and accompany political reform. This
mode of production of legal expertise – and of reproduction
of the legitimacy of the law - is also at the heart of a strategy
of facilitating the exchange of resources and the mobility of
elites between the different poles of power. By positioning
themselves at the crossroads, lawyers with access to state
affairs could combine the leadership of a large firm, and the
associated economic gains, with an authority acquired in
Washington networks (as “wise men” or “elder statesmen”),
while maintaining a close connection with the most
prestigious campuses (where their generous gifts ensure
that they maintain an overview and right of pre-emption in
the recruitment of the new generation of elite lawyers).
On the basis of the developments we have described
above, we can summarize the main contributions of
Bourdieu's problematique to analyses of the diversity of
national legal fields and their respective histories. There are
three fundamental axioms. First, research must be
undertaken through a sociological problematique -- without
being constrained by indigenous categories -- on the history
and composition of the diverse fractions whose oppositions
and complementarities are constitutive of national legal
fields. Second, it is necessary to inscribe this history of
national legal fields within a sociology of the field of state
power, as well as a sociology of the reproduction of elites,

26. 26
particularly in relation to the opposition between the logic of
inheritance and the logic of scholarly merit. Third, it is also
vital to take into account not only the specificity of national
legal fields -- mixtures of ruptures and path dependencies --
but to relate them to a global history in which legal agents
have been both the product and the instruments. These
connected histories show the national-global role of legal
agents as intermediaries and mediators in colonial politics
and in hegemonic confrontations among state powers.
In order to undertake this work, one key is to
undertake a sociological analysis to question the partial
lucidities and the blind spots that derive from positions in
academic, legal, and political fields and predictably continue
to shape Law and Society agendas and research.
- II - Toward a reflexive sociology of Law and Society
One may apply to different strains of the sociology of
law a fundamental axiom of the sociology of science
formulated by Bourdieu: the strategies of learned production
of the different agents in competition in these fields -- and
then also the choices of their objects of research as well as
their strategies of alliance with professionals, practitioners,
bureaucrats, or activists -- are in great part determined by
the positions that they occupy in the hierarchies of fields of
learned production.
Further, in the case of legal learning, it is necessary
to take into account also the relatively weak autonomy of the
sub-field of learned law, which has porous and fluctuating
boundaries with the field of legal practice. This internal
mobility across boundaries is facilitated by the multiple hats
worn by legal elites as learned gentlemen of the law,
professors-politicians (Dezalay and Garth 2002), or
academic entrepreneurs (Dezalay and Garth 1996).
This fluidity is evident in the common law countries
modeled on England, where the elite of practitioners, the

27. 27
Queens Counsel, are considered the true scholars in the
law, unwilling to cede legal authority to the new arrivals, the
law professors. But this is also true in the legal fields of
Continental Europe depicted by Max Weber as a model of
"professorenrecht." In fact, the dominant producers -- those
with the authority "to speak the law" -- are characterized by
an ability to combine academic competence with an
important mix of political and social capital5 constructed
around networks of alliance within the world of law -- the
judicial hierarchy and the elite of the bar -- but also within the
field of state power and parliamentary politics, as well as in
the world of business and activism -- labor unions,
associations, NGOs -- and even the media.
As emphasized many times by Bourdieu,6 this
heteronomy of the field of (re)production of legal learning has
as a corollary a strong homology of positions -- as much
between practitioners and learned scholars, as outside the
legal field between different fractions of jurists and the social
groups whose interests these professional groups translate
into the language and forms of the law.
5
A German grand professor stated to Yves Dezalay that it was
a matter of the difference between "true professors" and those
who, lacking the power to mobilize multiple forms of social
and political capital, were nothing more than simple "teachers"
(lehrers), contenting themselves with their contributions to
legal knowledge but without the social authority to "speak the
law."
6
Notably in "The Force of Law" (1986: 18), where he
explained the hierarchy of legal disciplines, such as the civil
law versus labor law, by the fact that "the position of the
different specialists in the relationships of power at the core of
the field depends on the place in the political field of the
groups whose interests are most directly linked to the
corresponding forms of law.”

28. 28
The learned legal capital is then constructed by
affinity with the dominant groups in national fields of power.
Historians such as Brundage (2008) have shown that the
reinvention of legal learning in Italy during the early
Renaissance -- but also later reinventions, notably through
the Protestant Reformations (Berman 1983) -- are the
product of an alliance between the holders of religious or
state power and professors who are often their advisors.
These rulers support the academic enterprises and help to
finance them -- especially by giving their proteges
ecclesiastical benefits in order to finance quite costly studies.
In exchange, these schools of law select and educate new
generations, all predisposed to put their learned competence
to work in order to valorize the combined forms of social and
relational capital of which they are the product.
Even if these games of alliance are modified with
new political configurations (Berman 1983), these strategic
alliances between the elites of learned law and the dominant
groups in the field of state power are found throughout
national and colonial histories. The accumulation over time
of multiple strata of legal learning helps to produce continuity
and stability in the process of social reproduction. This
activity has long served to inscribe the interests of dominant
social groups within the language of the law. Further, as
Berman shows (1983), since it is a matter both of being
close to power and seeking to maintain some distance
(Kantorowicz 1997), these clerics and jurists have served as
intermediaries in periods of religious and social revolution by
facilitating the transition toward new political regimes which
are accompanied by recompositions of the legal order that
nevertheless preserve a large portion of accumulated legal
learning. The strength of this symbolic capital, constructed
and accumulated in the service of dominant classes, comes
in part from the fact that the legal ensemble of principles,
categories, and modes of reasoning appears more legitimate
because the product of a long history. It appears as a kind of
natural, even universal order.

29. 29
As Bourdieu noted in the conclusion of “The Force of
Law” (1986), the social interests of dominant groups are
linked to the guardians of the legal order, who are the
"defenders of a (legal) orthodoxy": enshrined in the cult of
the text and the primacy of doctrine and exegesis, which is to
say the theory that embodies the past, and which typically
goes with the refusal to recognize any role for creative
values -- practically denying economic and social reality and
refusing any scientific understanding of this reality (1986:
18). He concludes the analysis by emphasizing that it is the
dominated of the field, or the new arrivals, who by necessity
are forced to invest in the renovation of legal science, even
with borrowings from social science aiming to gain
recognition in the law for new interests that they seek to
speak for within the legal field.
Still, as we are reminded in the "Noblesse d' Etat,"
even if opposed to the guardians of the legal order, the new
arrivals can only succeed in their strategies of subversion if
they play simultaneously on a double register, contradictory
as well as complementary, of science and political morality --
the promotion of new social rights or access to justice. The
double game means that the challenges and oppositions are
presented as legal science and legitimate law. At the same
time, this approach valorizes their positions because
success means not only an enlargement of legal markets but
also a revival of belief in the law. As Bourdieu states, "The
dominant among the dominated can only succeed in making
their interests progress by associating with causes that
appear universal, such as through an emancipatory science"
(2012: 548). This insight applies nicely to other forms of
universals such as human rights or social justice.
The reformers are therefore taken in by the game. In
order to contribute effectively to the legal recognition of the
social interests that they purport to represent, they must
insist on the scientific rigor of their approach, borrowing from
social sciences but not putting into question the autonomy of
the law -- the fundamental basis of the social belief and

30. 30
legitimacy of law. They are captured by a double
contradiction. In order to shake up the legal order, they must
present innovations as a return to the sources of law. In
order to fight to gain recognition of new social groups
excluded from the law, they must preserve the fiction of the
neutrality of law, since the symbolic power comes precisely
from the fact that it does not appear as a simple reflection of
social and political relations of power. In other words, the
efficacy of the reformist strategies is conditioned on
strategies of a double game that permit ruptures as a story of
continuity.
This way, the new arrivals oppose their predecessors
as dogmatic, conservative, even archaic. But they adopt
strategies that serve to inscribe the new state in the forms
and the texts of the law and therefore, however precarious,
existing social relations. The consolidation of these new legal
paradigms is accomplished through a reaffirmation of the
autonomy of law that privileges the texts and maintains a
distance from their contexts. In short, in seeking to gain
recognition for a new orthodoxy, this updating begins the
process of relaunching the great tradition of exegesis -- at
least, until these new high priests of the new cycle of
doctrinal production are criticized in turn for their own
dogmatism.
A tactical instrumentalization of social science
The social and political alliances that are
indispensable to the production of new legal learning impose
particular strategies and limits, and the corollary of implied
silences and blind spots, taboos and off-limits areas. The
various enterprises that have mobilized social science and
notably the sociology of law in the service of legal politics --
such as the production of new social rights -- only succeeds
by becoming part of new legal orthodoxies.
In the field of doctrinal production, the new arrivals,
anxious to gain recognition for the causes they defend, may
profit from collaborators occupying dominated positions -- in

31. 31
particular, those from the "auxiliary" social sciences -- by
imposing on them a self-limitation on their objects of
research. These limitations ensure that the social belief in
the law, and ultimately the hierarchy of learning that is
fundamental to the legal order, remains unquestioned.7
Ronan Shamir's examination of "The Revolt of the
Academics: Legal Realists and the New Deal" in his book on
the New Deal (1995) demonstrates superbly the relevance of
these hypotheses in the relationships between the subfield of
learned law and the fields of power -- legal and political -- in
the United States. He begins by emphasizing the "dual
marginality" of this generation of law professors. They were
relegated to the role of "adjunct" by the elite of legal
practitioners. Their competence was mainly in the
classification of the law: "Academics were the librarians,
Judges the authors" (1995: 139). Their position was simply
teachers in professional schools using appellate cases as
their material. According to Shamir, "In stark contrast with
the vivid intellectual activity in the emerging social sciences,"
the law professors were not "fully integrated -- either
institutionally or intellectually -- into the rest of the academic
world" (1995: 140). The revolt of the Legal Realists had
therefore to be analyzed as a "collective mobility project"
relying on a "two tiered assault on the established legal
order" (1995: 141): "questioning the field's established
hierarchies ... [by] comprehensive challenge of judicial
7
Cf., in this respect, the quite revealing statement by Rita
Simon mentioned above that described law and society
scholars as "handmaidens and sort of technicians that had to
supply technical answers to legal scholars who than had to (1)
frame the problem and (2) decide what the data really meant."
(Garth and Sterling 1998: 459). We find the same perspective
from interdisciplinary scholars such as James Willard Hurst
that social scientists should be "on tap" and lawyers "on top."
(Garth 1999).

32. 32
supremacy on the one hand and the privileged position of
the bar's elite on the other" (1995: 147) -- more precisely,
"Challenging the privileged bond between appellate courts
and the bar's elite" (1995: 148).
At the beginning, the objective was to question the
basis of the authority of the top judicial hierarchy: "To
dethrone the King" (1995: 143), they demonstrated the
chaotic character, indeterminacy, inconsistency, and above
all unpredictability of judicial decisions. In the course of
undermining these judicial pronouncements, they also
sought to promote "legitimating alternative sources of law"
(1995: 145), and also "different strategies of uncertainty
reduction" including a "social scientific foundation for the
study of judicial decisions," as a "true science" (1995: 149).
Simultaneously, they attacked the monopoly of the
case method that stifled reflection on the law through a
deductive technique that "over-emphasized and canonized
appellate court decisions" (1995: 146). In order to remedy
these defects, they called for the study of "law in context"
and for "closer relationships with the social sciences," which
they intended to attract by opening the doors of the law
schools. By bringing them to their own terrain, they benefited
not only from a new image as an "intellectual vanguard," but
they also reaffirmed their own authority, since they were by
definition the "final arbiters of the law." The position of
authority was facilitated further by the fact that they were in
position to be "architects of the new social order" through
their privileged relationships with the field of state power in
the New Deal.
This alliance with new academic disciplines which
were intellectually prestigious but lacking relational and
political power, went hand in hand with a repositioning of
alliances in the field of legal and governmental practice. The
scientific investment combined with an investment in
morality. They denounced a profession which had become
"the obsequious servant of business, tainted with the morals
and manners of the market place" (Shamir 1995: 148). They

33. 33
placed their expertise in the service of the politics of the new
bureaucracies of the New Deal by promoting a "socially
informed law" through "enlightened legislation" able to solve
social problems "too complex, too difficult to be handled by
the average judge" (1995: 150).
The incontestable success of this project came from
a context that permitted these "law teachers to escape their
dual marginality.... The New Deal opened an entirely new
market of legal services, that of the legal expert in the new
governmental agencies, and, in the same act, opened the
doors of the law schools to the social sciences" (1995: 152).
Nevertheless, this success did not come without its
counterpart: "The alliance with Roosevelt's administration led
the realists away from a critical discourse towards an
operational one" (1995: 156). In order to appear credible as
"responsible social-legal planners," they had to contribute to
reinforce the social belief in the law, constructing the myth of
a doubly legitimate law, both from the perspective of the new
social science and a political morality conforming to the
ideals of the welfare and regulatory state.
Law and Society: a hierarchized division of labor of
scientific rationalization and the legal order
The emergence at the end of the 1960s of the current
Law and Society movement signaled the revitalization of this
strategy of mobilization of the social sciences in the service
of legal progress. The themes were a rationalization of legal
regulation and greater social justice8 -- access to justice for
8
According to Victor Rosenblum’s presidential address to the
Law and Society Association in 1970, “the law itself can in
some situations guide the development of cultural values and
social institutions, in other situations be utterly ineffective in
doing so, and in still other situations have consequences
exactly the opposite of those it was intended to produce. The
social-scientific investigation of the variables which produce

34. 34
the underprivileged and a recognition of their rights. This
complementarity between the two poles which -- employing
the terms formulated by Boaventura de Sousa Santos (1995)
-- can be termed "regulatory" and "emancipatory," went
along with a hierarchized division of labor between lawyers
and social science researchers. The professors of law
reserved to themselves the key roles, due to the simple fact
that they had the possibility of playing simultaneously on the
double register of scientific competence and the legal
authority that goes with greater institutional and relational
capital. This hierarchical relationship was built on the
opposition and complementary between "two species of
scientific capital: on one side a temporal (or political) power,
an institutional and institutionalized power linked to the
occupation of eminent positions in scientific institutions ... as
well as control over the means of scientific production
(contracts, credits, positions, etc.) and the (re)production of
legitimate producers of science (power to shape and
influence academic careers through nominations,
recommendations and appointments…) and on the other
side a 'pure' scientific capital of personal prestige, which is
acquired mainly through contributions recognized by peers."
(Bourdieu 1997: 29).
each of these results carried on with the aim of formulating a
general theory of the limits of effective legal action seems to
me to be essential to the understanding of the relationship
between law and social change. Such a theory should be useful
to lawmakers as a guide in using law as an instrument of social
policy. Another service the social scientist can and should
provide the lawmaker is the pragmatic evaluation of the social
consequences of specific rules of law to determine how well
they achieve their ends and how they might be modified to
better achieve those ends” (1970: 4).

35. 35
This division of scientific labor which doubles as a
hierarchization of agents shapes the objects and themes of
research. This process is evident with respect to the
"regulatory" pole, which benefits from greater proximity to the
institutional resources and market of "policy sciences." On
the other side, researchers who are more activist and
engaged reclaim the "emancipatory" pole and are able to
turn their investment in political legitimacy into a strong
scientific visibility. Less subject to bureaucratic necessities,
these researchers embody the scientific ideal of the
production of knowledge responding to "social demands."
Conforming to the adage of making a virtue out of
necessity, these investments come at a cost in scientific
relevance. These two poles -- between which the boundaries
are porous and fluctuating -- have in common the exclusion
from the definition of their objects of research all that touches
the structure of the legal field, and therefore that which
determines the choice of their objects of study in relation to
the positions that they occupy in this hierarchical space. This
structural invisibility of hierarchical structures in the field of
legal power (and in its relations with the field of state power)
is a kind of common denominator of the two topical themes,
providing a basis for the alliance between the different
fractions that co-exist in the Law and Society movement.
Still, as a function of their respective positions in the
processes of learned production, the two poles of Law and
Society invoke justifications that are perceptively different to
explain their priorities and thus also their blind spots. The
researchers who seek to help policy makers rely largely on
the rigor of their scientific methods. This approach
corresponds to the division of labor which allows them to
avoid posing questions about the structure of the field in
which is inscribed the process of political decision. The
social science researchers confine themselves mainly to
quantitative analyses with given objectives. The political and
professional stakes that weigh on the themes and the
categories are, if not hidden, at least bracketed for the

36. 36
purpose of the research. Within the broad Law and Society
field in the U.S., the Society for Empirical Legal Studies well
reflects this division.
In contrast, those who work on the themes that are,
by definition, much more political play less on the scientific
register and much more on their engagement in the service
of causes for which ideological legitimacy imposes tactical
imperatives and self-censure on the researchers. The fact
that they are engaging in the service of great causes
prevents all forms of reflexive distance, since it might appear
as a criticism of the actions of the activist professionals --
even a kind of treason. Further, these allies play a
determinant role, as much for the definition of the objects
and the themes of the research as to validate the results.
The support and recognition by the activist practitioners
attests to the value of the scholarly analyses.
Even if the modalities and the principles of
justification differ, the effects of these blind spots converge to
exclude analysis of the structures of the field of legal power.
Still, it is not necessary to see this phenomenon as a simple
failure of scientific activity. It is above all the result and the
product of the structures of the field -- the means by which
the structures and hierarchies of legal fields impose their
logic on the (re)production of learned representations of the
law.
It is therefore significant that one observes very
similar phenomena in other national spaces, where the
borrowings from the social sciences most often contribute to
promote updating and reform strategies, pursued in alliance
with state bureaucracies, and also to help the "lower legal
clergy" seeking to gain recognition as legitimate
spokespersons for the rights of underprivileged social
groups.

37. 37
Social sciences as auxiliaries of the "legislateur éclairé"
(enlightened lawmaker).
As Bourdieu reminds us, "those who govern today
have need of a science capable of rationalizing, in a double
sense, domination, capable at the same time of reinforcing
mechanisms that assure it and legitimate it" (Bourdieu 1984:
27). One can easily transpose these observations about the
sociology of religion to legal sociology. The
instrumentalization of social science in the service of policy
makers produces the kind of marketing studies that take as
their quasi-exclusive object the behavior and characteristics
of potential clients in order to refine their politics and improve
the impact or effectiveness.9
According to the formulas offered by jurists, the social
sciences and more particularly sociology have the function of
contributing to the modernization of law. This tactical
argument is mobilized -- with some prudence! -- by
reformers, particularly in newer legal disciplines such as
social law and labor law. It is a warning addressed to the
hierarchy with respect to legal doctrine characterized by the
most legally orthodox positions as well as the most
conservative politics.
These modernists repeat that is not a matter of
questioning the legal order, but only to avoid the "law of
jurists" (an expression targeting the guardians of doctrinal
orthodoxy and exegetic science) becoming "antiquarian law,"
a "dogmatic law" (Durand 1956), in order to “save their
9
In this manner, the observations of an eminent representative
of French legal doctrine, Robert Savatier (1959: 136), strangely
echo the promotional discourse described above for Law and
Society: "what contemporary jurists desire from sociology, that
which can help to guide them, is first in the recognition of
social structures that are to be affected by rules of law, next the
range of possible reactions that these rules of law will bring
according to the play of social factors"

38. 38
discipline from unconditional attachment to the established
order.”10 In short, these reformers remind their peers that in
order to be socially credible, the law and the jurists must
know how to take into account transformations of the social
reality, under penalty of appearing archaic and being
disqualified and dispossessed by new sciences of
government.
This tactical use of social science, limited to subaltern
tasks of reporting on the legal environment and its social
context, is in this manner inconsistent with a sociology that
would take as its object understanding the functioning of the
legal field and interrogating the mechanisms -- including the
recourse to social science -- that contribute to the
reproduction of the belief in the law, at the price of a
redefinition of positions that consolidate more that threaten
the structures and the hierarchies constitutive of the legal
order.
The stakes of these false ruptures is only to disturb
the hierarchies and internal relations of power sufficiently to
permit the promotion of the new arrivals, without in the
process weakening the structures and the representations
on which rest the belief in the autonomy of these symbolic
fields and their legitimacy. As Jean Carbonnier stated, "Don't
shake without discerning the columns of the Temple." He
made this injunction more precise writing that for this
auxiliary science, "it would be unpardonable to launch by
itself, lightly armed as it is, in pursuit of that which the law
has most jealously defended, which is its essence, or at least
its own image” (Carbonnier 1972: 272ff). This disciplinary
imperative addressed to legal sociology made clear that it
should stick to its role as an “ancillary” sub-discipline and
thus remain "respectful" of the legal order that it had to
serve. Dean Carbonnier was one of the godfathers of a
10
Citations from Professor Rene David, in Bancaud and
Dezalay1984.

39. 39
revival of sociology of law in France in the 1970s, seeking to
make the case for the legislative modernization of family law.
A tactical interest in the fable of pure science
In a field of scientific production with relatively weak
autonomy, scientific ruptures are necessarily linked to
ruptures and even political revolutions that favor the
emergence of new strategic alliances exterior to the field. As
a counterpart, these new alliances, which favor a
recomposition of internal hierarchies, also underlie the
definition of new objects of research, which appear and give
value to a double legitimacy -- both in relation to the new
political landscape and in regards to the new agendas and
paradigms of mainstream academic production.
As was seen in the case of the Legal Realists, the
effectiveness of these updating strategies is much greater
when the new producers, after having denounced the "false
science" of the guardians of orthodoxy which they oppose,
shift gears and reassert the mystification of a scientific
approach which permits the law and the jurists to take
account of transformations in social demands. For these
reformers, it is essential that they protect themselves against
the risks of an unveiling which, in publicly revealing their
intervention and their interests in the play of alliances, would
only weaken the credibility of the new rights by reducing
them to arrangements negotiated by learned brokers
between law and state politics.
In these plays of alliance, all the participants have an
interest in maintaining this fiction, insisting on the scientific
objectivity of the relationship between law and society and
hiding the role of intermediaries in the process through which
new social demands become inscribed in legal categories.11
11
This "putting in a direct relationship the text and the context
is what I call the 'error of short-circuiting,' an error that consists
in putting in relationship a work ... and its (social)
manifestations" (Bourdieu 1997: 14). He makes this point more

40. 40
This is true for socio-legal scholars -- but also for the law
professors who are their partners. This boundary is easily
maintained by the policy makers for whom it increases the
room to maneuver by keeping discreet their specific interests
in the world of lobbying. It is even more true for a legal
sociology purporting to champion "causes" and more
generally new social demands.
As Bourdieu reminded us, "this rhetoric of the 'social
demand' ...is inspired less by a real desire to satisfy the
needs or the expectations of such and such category of
'clients' ... or even to gain their support, (…) it is part of a
scientific strategy whose legitimacy can’t be challenged by
its opponents, it provides a surplus of symbolic force in the
internal competitive struggles over the monopoly of
legitimate definition of scientific practice" (1997: 40).The
analysis also applies to activist practitioners, such as cause
lawyers, who contribute to the promotion of legal practices in
favor of dominated social groups. The work of scientific
objectification brings them an increase in legitimacy with
respect to the process of putting at a distance arrangements
and private interests that might otherwise be able to
disqualify their efforts. And the strategic importance of this
work of universalization is even greater when it is a matter of
marginalized and dominated social groups, since they have
precise as follows: "My hypothesis consists in supposing that
between these two poles which are very far apart ... there exists
an intermediate universe, which I call the literary, artistic, legal
or scientific field, that is to say the universe in which are
inserted the agents and the institutions that produce (works or
texts).... In fact, the external constraints, of whatever nature
they might be, only operate through the intermediary of the
field and are mediated through the logic of the field. One of the
most visible manifestations of the autonomy of the field is this
capacity to refract, by retranslating constraints and external
demands into a specific form" (1997: 15).

41. 41
little access to the networks and institutionalized forms of
rationalization that are reserved to dominant groups.
Conclusion
A blindness not only strongly limits the heuristic
relevance of the majority of research on the themes of law
and society, but also dooms to failure any effort at
comparative sociology, and thus a fortiori any interrogation
into the international relations between national legal fields
or the emergence of transnational legal fields. In fact, as we
have developed in our own works (1996, 2002, 2010), this
international dimension of legal practice is strongly
implicated in international hegemonic struggles in which
national legal elites are at the same time the missionaries
and the mercenaries, the courtiers and the mediators.
Further, the (re)production of legal learning is a key
element in the internationalization of the competition of
national legal elites. From the reinvention of legal learning in
Bologna for Europe during the early Renaissance, to the
recent wave of the restructuring of teaching law according to
the model of the American law school, through the
exportation of faculties and schools of law as a strategy of
co-optation of colonial elites (or as a strategy of the Cold
War in the case of the Law and Development Movement),
the international circulation of students and professors has
always been at the center of the methods for the
(re)production of national fields of legal learning.
The international relationships between legal fields is
therefore inscribed in complex games relating at the same
time to hegemonic strategies, the competition between
different elites and different expertises, but also the
interconnection between national histories that have
produced different configurations of the field of state power,
in which law and jurists have held very specific positions and
resources.
In order to begin to understand this international
dimension of legal practice, it is then indispensable to

42. 42
analyze the multiple networks of relations that permit these
elites of national legal fields to exchange and accumulate
different species of symbolic capital -- social and economic,
political and academic -- through which they have
constructed their specific model of legal capital, and which
determines the respective value of national competences in
international markets.
In other words, it is imperative to open the black box
that constitutes the unthought and unthinkable of Law and
Society scholarship. Failing this, the multiple efforts toward
internationalization, whether seeking to export legal learning
(as with the missionaries of law and development), whether
through comparative sociology (as that of Abel and Lewis
1988-89, Sarat and Scheingold 1998, or Halliday and Karpik
1997), come up against the stumbling block of legal and
paradigmatic nationalism -- projecting to another national
space conceptions of legal practice that are the product of
very specific national histories, such as the belief in the
virtues of the Socratic method, the notion of "lawyer" as
“monopolist,” and a fortiori that of "cause lawyer" or the bar
as champion of "political liberalism."

43. 43
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47. 47
Rethinking Habitus Bourdieu in Attaining Substantive
Justice
Prof. Dr. Suteki. SH. MHum12
Substantive justice historically becomes the objective structure
of a judicial system in a civilization. A judicial system must
have universal metaphysics, spiritual, transcendental as well
as objective. In Habitus Bourdieu’s perspective about law,
justice is a utopian conceptualization. It penetrates into a way
of thinking and agent of cosmology longed for justice.
Therefore, the solemn justice has manifested in the
subconscious mind, way of thinking and subjective truth of an
individual. Though eventually the substantive justice in Habitus
Bourdieu’s perspective undergoes a paradox, on the one
hand, Habitus demonstrates the objectivism in an individual’s
thought regarding the mechanism of law that has been
discussed aforementioned-macro point of view. On the other,
Habitus is a behavior and individual relationship in a relatively
narrow perspective-micro point of view. The last one, the
substantive justice is immensely anthropological perceiving in
a small sphere of social life. If the society is distinctive, the
sense of justice will be dissimilar.
Habitus is an objective perspective upon social life penetrated
in a structure of supra-individual, creating a tendency in
decision-making process, concept of understanding and
knowledge reproduction (Jenkins: 2006: 45). Habitus is stored
in an individual’s mind thus the process of interaction will be
based on ideology, mythology, idealism and exclusive
abstraction.13 In this case, substantive justice is in the
framework of knowledge philosophy. Therefore, people
12
Professor Law and Society at Diponegoro University
13
Habitus sometimes appears in the nature of perception to disentangle
ideal criteria reproducing ideological description of human civilization. In
this context, education and socialization become essential elements in
controlling the ideas of universal knowledge. Richard Jenkins. Pierre
Bourdieu. Key Sociologist. 2006. Routledge. New York &London. p. 46

48. 48
consistently think about justice. Further, it is a dream,
expectation, passion and aspiration simultaneously. At this
point, the substantive justice is universal; all elements of
society from different tribe, nation, ethnicity, race and religion
demand the manifestation of substantive justice. Moreover, it
becomes collective objective in sociological as well as
philosophical optics.
How the social structure in Kabylia tribe upholds its tradition
and cultural norm in order to distribute the justice for all
families living there is embodied in Indonesia. One of the
objectives of this nation stated in Pancasila as the
philosophical ground (philosophigrondslag) is to materialize
and distribute social justice for the whole of the people of
Indonesia. In short, there is no resistance to justice. It is in this
sense that the substantive justice in Habitus metaphor
employs the basis of reasoning in line with natural law. The
natural law is universal and objective, meanwhile justice is a
moral concept construed as Habitus perspective in the shadow
of human supra-individual with their transcendental values.
Substantive justice in the framework of Habitus concept is a
confrontation between the ideas of macrocosm and
microcosm. In the frame of macrocosm, as initially elaborated,
justice appears to be universal and objective, not a final and
end of conceptual system. The universality and objectivity of
substantive justice face their eternal adversary, the
conceptualization of pluralism and multiculturalism.
Heterogeneity is a static social phenomenon in the historical
record. In this post-industrial society, the diversity is
increasingly complex and varied.
From this context, Habitus has the dimensions of fragmentary,
segmentation and multiculturalism among its social actors as
well as community (Lane: 2006: 45). Habitus is related to the
social behavior demonstrated by diverse individual who reacts
upon the stimulant of information not to mention incident.
Through this point, Habitus influences social class,

49. 49
demography and particular social behavior in a typical
society.14
In the end, Bourdie is pessimistic towards the concept of
justice because, in fact, it is manipulated by a king,
government, business enterprise and other dominant social
stratification (Bourdieu: 1998: 47). The conceptual system of
justice with European style creates hegemony in international
scope through the boundaries of jurisdictions and sovereignty
of indigenous community. Law is executed by the social
agents representing the power and capital interest.15 In this
point, substantive justice is a perplexing conceptualization. In
contrast, it covers the shortcoming-criticizing-Bourdieu’s
reasoning that glorifies empirical and political approaches in its
socio-analysis philosophy.
Habitus and Substantive Justice
Adopting approach from Bourdieu in defining the objective of
substantive justice is such a complex task. A lengthy
elaboration is required to explain the characteristics of
interconnection between social philosophy Bourdieu and the
concept of substantive justice I contended as the basis of
theoretical and epistemological scheme of law and society.
Particularly the conceptualization of Habitus Bourdieu can be
developed in line with the concept of substantive justice I
imagined in the world of constellation law. Further, I will put
forth concepts of law reformation with these deliberate
14
The ethic of the working class is realities exampled by Bourdieu in
describing the micro-physic of its Habitus. As each class has its
characteristics distinguished among others. Jeremy F. Labe. Bourdieu’s
Politics Problems and Possiblities. 2006. Routledge. London&New York.
p. 46
15
Bourdieu believes that the production of justice is always labeled as
public interest, but the authorities predominantly blame it to shift the
definition of justice based on status quo interest. Therefore the function of
legal system only legalizes the desire options by ruler and capital. Pieere
Bourdieu. Practial Reason: On the Theory of Action. 1998. Stanford
University Press. p. 49

50. 50
considerations: law as the instrument to reduce conflict based
on social change; law as the organization in society that has
comprehensive structure as well as function; law as the
interconnected system from one institution to the other, and
law as the fragmentation of diverse social life.
First, law as the instrument to reduce conflict based on social
change. Habitus asserts when the social class has political
awareness to protect their economic interest-through law
enforcement-thus they are willing to contend in a battle16. The
conflict could not be avoided from the social life. Even, Coser
believes that the conflict significantly contributes to the social
change.17 For instance, the industrial conflict after the
invention of steam engine by James Watt in 1765, the life
standard development advanced towards better civilization.
Conflict is a predominantly primitive concept from human
being; however, this wildest perspective is gradually eroded by
the development of science, technology and art.
Bourdieu allows a conflict arise in every level of social life,
even in the most modern society, since in the deepest
subconscious mind of an individual has intuition and sense of
injustice, excruciation, and symbolic violence. An individual or
social stratification in Habitus’ perspective easily rebels a
regime if the power has been corrupted and violated the rights
of human dignity. Further, the conflict is not only physical
violence using weapon, albeit this kind of violence has become
an emerging phenomena in the World War I, II, Cold War and
conflicts in North America not to mention Middle East. But
also, the conflict materializes in a symbolic understanding,
attacking the psychological foundation of an individual until it
16
David Schwartz. Culture Power. The Sociology of Pierre Bourdieu. 1997.
The University of Chicago Press. p. 49. Bourdieu quotes the perspective of
Durkheim upon systematical symbol of society that moves in accordance
with social logics and integration, thus society consisting of that structure
produces power to impose its domination through hierarchy, conflict and
contention.
17
Lewis A. Coser. The British Journal of Sociology, Vol. 8, No. 3. (Sep.,
1957), p. 197

51. 51
becomes vulnerable, somewhat dismissive of the expectation
towards a better life, and poverty.
From the perspective of substantive justice, legal institutions
play an essential role in reducing the violent conflict. The
existence of international judicial tribunal and criminal court
expectedly could resolve the conflict in a civilized manner with
the rule of law. Though basically, the law also has the conflict
of interest among its blocks of political, economical and race.
With the substantive justice, Habitus Bourdieu that observes
the primitive form of social conflict finds its metaphysic
foundation, a utopia about justice and peace. Individual libido
longed for substantive justice will become the guiding star to
contend the coveted justice. Therefore, a person shall not fall
into materialism and money cult, but he has to defend his
idealism to honor the manifestation of the ideology regarding
what is right or wrong. However, he shall not fall selfishness-
centric that would plunge him into alienation or estrangement
leading to unrealistic aspiration. In this manner, willingness to
compromise is required. In the concept of substantive justice,
communication plays a significant role. It creates
understanding between one to the other. With communication,
peace and justice could be attained utilizing law instrument in
order to protect social interest.
Second is law as the social organization with comprehensive
structure as well as function. The society is organized into a
structure in which the fragmentation, demography, hierarchy
and pattern of labor division take place. In the words of
Baourdieu, Habitus is a social pattern which is independent in
a habit becoming day-to-day behavior of a society. Thus law is
not only in the form of constitution, but also it consists of
behavior and authority organizing public functions. In the
classificatory notion of social segmentation, ‘doxa’ of an
individual finds a way for learning, understanding, believing
that eventually making decisions and practical actions of an
individual. In other words, individual perceptual in society is
influenced by external factor of his surroundings and internal
factor of his life journey. In this respect, erudite and well-

52. 52
grounded individual has a power and impels him into an elite
group of a society. Culture and science are the authority of an
individual distinguished from others.18 Anything outside the
dominant structure is categorized as illegal, criminal, even
terrorist. Further, the dominant structure in a society is not only
influenced by nation institution, but also religion, business
enterprise, convention institution, and so forth.
In Indonesian society, substantive justice could not be
straightforwardly manifested if the ruler not only views a formal
state institution as an abash authority, but also tolerates
institution outside the state system to regulate the society.
Before legislation observes the matter of customary law, the
customary law institution has worked in accordance with its life
world (lebenswelt). Before legislation exist, the customary law
institution works under the autonomous authority (self-
government), whether in Desa in Java; Uma in Mentawai; Euri
in Nias; Kuria and Huta in Tapanuli; Nagari in Minangkabau;
Marga and Dusun in Palembang.19 Regarding the law as a
social organization, thus objective is prioritized in an
institutional administrative arrangement. Law as the social
organization is oriented towards the attainment of objective as
conceived by Nonet-Selznick.20
18
From this point Bourdieu believes that sociology also provide tool to
observe the network of domination, organized in a form of exclusive
structure. Individuals who play a role have their social weapons to impose
its will be subordinated with others. Jeannie Verdes. Deconstructing Pierre
Bourdieu. Against Sociological Terrorism From the Left. 2001. Algora
Publishing. New York. P. 14.
19
Soepomo, Bab-Bab tentang Hukum Adat. 1977. PT Pradnya Paramita.
Jakarta. p. 7. Besides Soepomo, figures discussing anthropological law are:
Soekanto, Hazairin, Mohammad Koesnoe, and Satjipto Rahardjo.
20
Philippe Nonet & Philip Selznick, Hukum Responsif. Nusamedia,
Bandung. 2008. p. 25. Then it is developed in a post-bureaucratic system. In
this system, the main objective is oriented on a more flexible mission.
Nonet and Selznick explain the assumption of responsive institution
regarding social pressure as the source of knowledge and opportunity for
self-correction. It becomes the authority in a team organization with open
communication duty that has substantive rationality, in the enforcement of

53. 53
Third, law is an interconnected system among one institution
to the other. In this perspective, Bourdieu believes that the
law-adapting Wittgenstein’s word, Tractatus-could not stand
alone, at least it needs political, historical, economical, and
social contexts.21 From that perspective, Habitus formulates
law as a system. It does not stand alone and further, connects
with other systems. Behind a law that contains normative
guidelines (prohibition, junction, sanction, principle, and so on)
it has law structure and culture as conceived by Lawrence
Friedman.22 Law requires agents, individuals who run it,
meanwhile the practical action as the part of individual
regularity is institutionalized in a cultural formula inherently
related to Habitus. Eventually Habistus shall attain
fundamental foundation to bring forth substantive justice
focusing on human resource development filled with idealism
and cultural law protecting the human rights of its society.
Legal institution could not be separated from other sub
systems, for instance economical, political, cultural and social
system. Cultural system is the value basis of law; meanwhile
economy is basically a capital energy allowing the law as it
should be. Law has complex duties to integrate all institutions
to actively protect the interest of society.
Fourth, law is a fragmentation of diverse social life. In the
logical perspective of Habitus Bourdieu, it materializes as a
‘market’. In a robust market, the price and types of goods
production interacts with its variation and diversity. In the end,
this diversity forms abundance of ‘flavors’ among its social
stratification are influenced by interdisciplinary circumstances
social order. The regulation in this system is subordinate towars the
objective of resistance upon the attachment to rules, thus this organization is
more flexible compared to the era of pra- bureaucratic as well as
bureaucratic.
21
Jacques Bouveresse. Rules, Dispositions and the Habitus. See also,
Richard Shusterman. Bourdieu A Critical Reader. 2000.
BlackwellPublisher. p. 45-9
22
Lawrence M. Friedman, The Legal System: A Social Science Perspective,
Russel Sage Foundation, New York. 1975. p. 16

54. 54
(combining among other disciplines academics, culture,
economics, and so forth).23
23
Pierre Bourdieu. Distiction A Social Critique of the Judgment of Taste.
Translated by Richard Nice. 1984. Harvard University Press. p. 12

55. 55
OIL PALM POST ILLEGAL LOGGING
(A Critical Analyze on The Legal Policy Related to Border
Environmental Development Approach)24
Saru Arifin
Faculty of Law UNNES e-mail: sars.unnes@gmail.com
Abstract
The National Body for Border Management, the Republic of
Indonesia has introduced a new approach to border
management in the border Grand Design 2011-2025. One of
the approaches is environmental approach. This approach is
inspired by the real condition of the forest devastation along
the Borneo Island (especially in the West Kalimantan).
Practically, this approach will be visualized by planting the oil
palm along the border forest. The Government argues that this
policy will have economically impact in terms of border
development. It is expected that the oil palm will absorb a
huge number of worker especially from the local border
society, and it would be the effective way to race the
Malaysia’s economic development as well. This paper is
intended to analyze this approach through sociological law
perspective. The focus of analyze is to answer two major
questions as follow: how is the environmental paradigm
integrated in the state border management; and how is the oil
palm policy relevance to the border society economic
development need.
Keywords: Border Economic, Illegal Logging, Oil Palm,
Border Society, West Kalimantan and Sarawak
Border.
24
This Paper is presented in International Conference on Pear
Bourdeou: A Reflextive Sociology of Law and Society, Conducted by the
Faculty of Law UNNES, November 30, 2012, Patrajasa Hotel Semarang.

56. 56
A. Introduction
The Indonesian government through The National
Body for Border Management25 has created a grand design for
border management 2011-2025. The grand design is to show
that Government has a serious commitment to develop and
maintain its frontier by changing the security approach to
prosperity. It is indicated by enacting some border
regulations26, which contains a strategic and philosophical
aspect of border management. For instance, new paradigm
and approaches are explicitly mentioned. The Government
sees that in the past experience, the use of military approach
has made the social and economic development along the
border, especially in the West Kalimantan and Sarawak, East
Malaysia stagnant or even isolated.
Based on the experience, the Government reorganized
the management approach for border development from
25
This institution was established under Presidential Regulation
(Perpres) Number 12 Year 2010. This Presidential Rule is followed by the
Home Ministry Rule Number 2 Year 2012 about The guidance for
Establishing the Local Authority for Border Management. The President of
the Republic of Indonesia has determined that the Ministry of Home Affair
as the leader of the institution. He has coordination function in the
maintaining the border management in all aspect. This idea was triggered by
the past experience in the border development program. According to
BNPP there ware at least 60 institutions that has border program. This
model was inefficient and just showing the partial action of the state
institution program for border management.
26
The regulations related to border are: Law Number 17 Year 2005
on Development Plan National Long (RPJPN) Year 2004-2025, Presidential
Regulation Number 5 Year 2010 on National Medium-Term Development
Plan (RPJMN) in 2010-2014, Law Number 43 Year 2008 on Concerning
Regional State, Law Number 26 Year 2007 on Concerning Space, Law
Number 27 Year 2007 on Regional Coastal and Small Island, Presidential
Decree Number 78 Year 2005 on Management Minor Outlying Islands, and
Presidential Regulation Number 12 Year 2010 on the National Border
Management

57. 57
inward looking to outward looking27. This paradigm is intended
to become the economic growth gate for border society in
conducting trans border relation. There are three approaches
are used to endorse the paradigm, they are: prosperity,
security28 and environmental approach. Following this policy,
the Government has determined border region as one of the
Center of National Strategic Activity (PKSN)29.
One of the interesting approaches to be analyzed is the
environmental approach, which is taken as one of the major
approach. If we look at the existing condition of the forest
devastation in the along border, we will assume that this
approach is very important to keep the sustainability of the
forest development in the area. However, the forest
devastation through illegal logging activity has impacted to not
only deforestation but also the indigenous people30 economic
life.
Deforestation in West Kalimantan is increasingly
prevalent since the reform era rolled out in 1998. Today, there
has been a shift in the mode of forest destruction. Whereas in
the past the rampant cases of illegal logging, the present case
is a clearing and mining (illegal mining). At least there are
approximately 2,000 cases of forest clearance and illegal
mining that occurred in Indonesia. "The most common is in
27
See BNPP, the Grand Design for Border Management 2011-
2025, p.3.
28
In present, these approaches (the prosperity and security) are
known as the comprehensive approach. This term was introduced by the
President Yudoyono. See the explanation of this term in the Ganewati, et al.
2009. Keamanan di Wilayah Perbatasan Inonesia-Timor Leste (The
Territorial Security in Indonesia-Timor Leste), Pustaka Pelajar, Yogyakarta.
29
According to Government Regulation Number 26 Year 2008 on
The Regional Spatial Planning (RTRW), there are 26 Center of National
Strategic Activity (PKSN) in the 11 Province in Indonesia. The meaning of
the PKSN is a region, which has a priority development among others.
30
Mostly, the border societies who are living in the surrounding of
the border are Dayak tribes. They live in the forest and made it as the major
resources for their daily need. See Riwut, 2009. Kalimantan…..

58. 58
Central Kalimantan, East Kalimantan, West Kalimantan and
South Kalimantan"31.
In West Kalimantan, forest destruction reached 2.2
million hectares, with an area damaged by the plantation used
to reach more than 2.1 million hectares due to 169 cases of
vandalism. For mining The Forest Ministry recorded 384
cases, the damaged area reached 3.6 million hectares, with
total state losses of 47.5 trillion rupiah32. Surprisingly, current
forest conditions in the West Kalimantan as quoted from
Kalimantan News, which reported that forest area of West
Kalimantan Province remaining 9.1 million hectares or about
60.93 percent of the total 14.9 million hectares of Kalimantan.
Many policies and efforts have been taken through
numbers of program. However, one of the policies is the
plantation of oil palm especially in the border region. The
Indonesian government plans to plant a palm oil plantation in
Indonesia-Malaysia border in Kalimantan along the 850 km33.
31
See Pantonanews, May 8, 2012. Kondisi Hutan di Kalimantan
(The Forest Condition in Kalimantan), retrieved from
http://www.pantonanews.com/1451-kondisi-hutan-di-kalimantan-barat,
accessed on November 17, 2012.
32
See Ibid.
33
Indonesia has announced plans to double its crude oil production
by 2025, a goal that will require a 2-fold increase in the result - something
that is very likely to see from the success of its neighbors Malaisya - or
even expand the area to be planted with oil palm. The report states that
Indonesia is likely to use both options. Appropriate investment proposals in
2005, made by the Company Plantation Country PT Nusantara (PTPN),
Indonesia will develop about 1.8 million acres in the Indonesia-Malaysia
border, where most of the remaining forest is still there complete. Survey of
the region conducted by WWF found that most of the land is poorly suited
for oil palm. Surface mountainous terrain combined with the altitude and
the climate is not suitable for oil palm highest mean only about 10 percent
are suitable for planting and this gives credibility to the environmentalist
groups to show that the entire plan may be just a cover for illegal massive
forest to take all sources of timber in the region. See Butler, A.R.2008.
Kenapa kelapa sawit menggantikan hutan hujan?. Kenapa biofuels
menggerakkan penggundulan hutan?.

59. 59
According to Government, the plantation of oil palm will absorb
the labor force of more than half a million people. This project
will reduce the level of economic inequality in the border
region where there has been illegal economic activity34.
This situation must be examined thoroughly
considering the development practices of large-scale oil palm
plantations are always displace and destroy ecosystems
indigenous forests. This is because, as most of the large-scale
plantation development which has been implemented in
Indonesia never recognize and respect the rights of
indigenous peoples. So, in general discrimination against
indigenous peoples is quite commonplace in the management
of forest resources and forestlands in Indonesia. Protected
forests, conservation forests and mines set by Government
without involving the indigenous communities35.
Moreover, legislation in Indonesia is still limited
acknowledge the existence and rights of indigenous peoples36,
and in particular to authorize communities to manage forests
classified as a state forest. However, the state still maintains
full control37 over the land with all its implications for
indigenous peoples38.
http://world.mongabay.com/indonesian/sawit.html accessed on November
25, 2012.
34
See the resume of the ELSAM’s Book entitle: Pembangunan
Perkebunan Sawit di Perbatasan Indonesia-Malaysia: Diskriminasi Rasial
terhadap Masyarakat Adat, available at
http://www.elsam.or.id/?id=221&lang=in&act=view&cat=c/401, retrivied
on October 11, 2012.
35
See Ibid. See also Rafael Edy Bosko, 1999. Hak-Hak
Masyarakat Adat Dalam Pengelolaan Sumber Daya Alam (The Indigenous
People’s Rights in Maintaining the Natural Resources), Jakarta:Elsam.
36
During year 2007-2008, the writer had participated as expert
team with the House of Local Representative (DPD) in drafting the
Arrangement Law for Protecting the Indigenous People. Unfortunately, the
draft rejected by the DPR RI. So, until the present time there is no a specific
regulation that preventing the indigenous people.
37
This is deviant from the original intent of the article 33 (3) of
UUD 1945 that the meaning of the state control over the land and its

60. 60
In the context of the West Kalimantan border society,
forest is the main source for their life. They take anything from
forest to fulfill their daily life such as food, wood, medicine and
some religion ritual activities also conducting in the forest. This
situation has been conducting since the ancient time, and it is
internationally recognized as the indigenous people rights39.
As we know that the existence of the border society had
existed before the states either Indonesia or Malaysia. The
origin people are dayak, such as daya Iban, Salako, Bidayuh,
etc40. Their families are the same as Malaysian border society
before the modern power and political organization formed,
surrounding is to manage and distribute based on the social justice. We can
find this spirit of law under act of Agrarian Law 1960. Unfortunately, there
some obstacles in its implementation, such as: politic, economic and social.
See. Sodiki. A. 1993. Penataan Pemilikan Hak Atas Tanah di Daerah
Perkebunan Kabupaten Malang: Studi Tentang Dinamika Hukum
(Managing Right to Land in the Malang District Garden: A Study on the
Law Dynamics), Desertasi Universitas Airlangga, Surabaya. p.1. As a
solution the Government enacted Law Number 5 year 1967 on Basic
Principles of Forestry. The Government Authority over the Land is
delivered into Medebewind and Deconcentration model of the forest
management. See Subadi, 2009. Desentralisasi Penguasaan dan
Pendayagunaan Tanah Kawasan Hutan di Jawa: Antara Harapan dan
Kenyataan. (Decentralization of the Land Ownership and Utilisation in the
Java Forest Region: Hope and Facts) Hibah Bersaing PT D2M Dikti.
p.133.
38
See Ibid.
39
Riyadi (1999) states that more less 350 million (370 million
based on the ILO data 2012) the populations consist of the indigenous
people. They are living in the remote area of country but rich of the natural
resources. See Riyadi, E. 2009. Masyarakat Adat,Eksistensi dan
Problemnya: Sebuah Diskursus Hak Asasi Manusia. Prolog on Bosko
Book: Hak-Hak Masyarakat Adat…Op.Cit.p.1. Policies and Strategies
Related to Indigenous People’s Rights is described comprehensively in the
<http://www.iwgia.org/human-rights/policiesstrategies-on-indigenous-
peoples> accessed on November 25, 2012.
40
The comprehensive description of the Dayak life, see TJilik
Riwut. 2007. Kalimantan Membangun Alam dan Kebudayaan (Kalimantan
Build Nature and Culture). Yogyakarta: NR Publishing.

61. 61
namely state41. The present of the modern states has changed
their social and economic relations except cultural
relationships. According to Usman, a head of subdistrict
Sajingan Besar, Sambas, the Indonesian border society, sells
the forest product to their relative in the Sarawak, Malaysia to
buy their daily needs.
B. Existing Condition of the West Kalimantan Forest
When we view from the forest area (based on
Ministerial Decree No. 259/Kpts-II/2000) the West Kalimantan
Province has a forest area of 9,176 million hectares, consisting
of: other usage areas 2.307645 Ha; limited production forest
2,445,985 ha; forest regular production of 2.2658 million
hectares; forest production interchangeable converted 514,350
hectares; forest nature 210.100 ha; Nature Reserves: nature
reserve area due to its natural state of the unique plants,
animals, and the ecosystem or particular ecosystem needs to
be protected and its development occur naturally covering
153.275 ha; National Parks: conservation areas that have
native ecosystems, managed by the zoning system is utilized
for the purpose of research, science, education, culture
support tourism and recreation area of 1,252,895 hectares;
Garden Tour Nature: nature conservation areas which is
mainly used for tourism and recreation area of 29.320 ha, and
2,307,045 hectares of Protected Forest42.
Forestry is a system that has to do with the
management of forests, forestland, and forest products are
organized in an integrated manner. As mandated by the Act
No. 41 Year 1999 on Forestry, the forest as a national
41
See Arifin, 2010. Prevention of the Border Society Migration to
Sarawak Through Revitalizing of the Border Economic Potention,
(Fundamental Research of Research and Technology Ministry) Jakarta. See
Also Arifin. 2011. People Migration and Its Implication to the West
Kalimantan-Sarawak, Malaysia Border Security. Jurnal Masalah-Masalah
Hukum, Vol.40. No.2 April 2011 p.220-227.
42
This data is cited from investigative report, conducted by
PantonaNews, May 12, 2012. See Op.Cit.

62. 62
development capital has tangible benefits to the lives and
livelihood of the Indonesian nation, whether ecological, social,
cultural, economic and dynamic balance43. Hence, forests
should be managed, protected and sustainably utilized for the
welfare of the people of Indonesia both for present and future.
Forestry development is part of the national
development; therefore the development of forestry in West
Kalimantan must be aligned with national development.
Forestry development in West Kalimantan has contributed to
the development of both national and local views of the
country's foreign exchange earnings, employment,
environmental protection, and improvement of the welfare of
forest communities. However, policy or decision made by a
government agency or organization and is binding on the
parties concerned with the agency. Forest development in the
past has led to the emergence of a variety of economic, social
and environmental. Fundamental problems that resulted in,
among other weaknesses is the orientation paradigm relies on
economic growth, and resources allocation policies are unfair
and centralized development pattern44.
Meanwhile, according to Goeltenboth (1992)45,
originally, tropical forest destruction caused by many things,
such as: population growth, poverty, external debt and poor
43
This claim seems imbalance and tends to place the state interest
as a major reason. However in the real condition, social, cultural and
economic rights of the local people (indigenous people) are often
marginalized from forest maintenance.
44
Sunito (2005) says that the centralized model of forest
management is fully adopted from colonial model in the 19 th century, which
was aimed at exploiting the forest. See Sunito S. 2005 review on the Book:
Strengthening Forest Management In Indonesia Through Land Tenure
Reform. Issues and Framework of Action. By:Arnoldo Contreras-
Hermosilla; Chip Fay. Published by Forest Trends dan World Agroforstry
Centre.
45
As quoted by Atep Afia, (211). Kerusakan Hutan di Kalimantan
(The Devastation of Forest in Kalimantan.
http://green.kompasiana.com/penghijauan/2011/08/01/kerusakan-hutan-di-
kalimantan/, accessed on November 17, 2012.

63. 63
economic conditions. But for most of the main cause of the
expansion of agricultural land and plantations, large private
construction projects, as well as over-exploitation of timber
resources. While the concerns of indigenous people
mentioned, that for centuries, indigenous people in forest use
without damaging the ecosystem balance. It could be said that
the main cause of forest destruction is caused by greedy
attitude of most immigrants in exploiting the environment.
Ongoing deforestation is estimated at about 1 percent per
year, or about 20-40 hectares of forest is lost every minute.
The existence of tropical forests, including forests in Borneo,
are threatened by two events, the first selective logging,
mainly to supply the raw material wood Industry (Logs, sawn
wood, plywood), both the logging throughout the area, both for
spreading agricultural fuels (slash -and-burn agriculture) or
shifting, open plantations, farms, mining or lumber industry.
According to Wana Equator (1992)46, the two main
causes of forest destruction, if not immediately controlled and
improved anticipation scenarios, many had feared would
exacerbate deforestation that has occurred. In the long term
degradation will negatively impact wildlife, the global and local
economy, the quality of life of people around the forest and
climate. However the rate of deforestation should be
controlled, especially when considering the Kalimantan forests
are ecologically and economically is one of the most important
in the world47.
C. Indigenous People’s Rights to Forest
The third amendment of the Indonesian Constitution
recognizes indigenous peoples’ rights in Article 18b-2. In more
recent legislation, there is an implicit, though conditional,
recognition of some rights of peoples referred to as
masyarakat adat or masyarakat hukum adat, such as Act No.
46
See Ibid.
47
The real policy, which is internationally concerned, is the REED
program to keep the forest sustainable.

64. 64
5/1960 on Basic Agrarian Regulation, Act No. 39/1999 on
Human Rights, MPR Decree No X/2001 on Agrarian Reform.
In addition, Indonesia is a signatory to the UN
Declaration on the Rights of Indigenous Peoples. Government
argues, however, that the concept of indigenous peoples is not
applicable, as almost all Indonesian (with the exception of the
ethnic Chinese) are indigenous and thus entitled to the same
rights. Article 17 of The Universal Declaration of The Human
Rights is the main legal source for protecting the indigenous
peoples right to natural resources. It is said that: (1) everyone
has the same rights to own goods, either alone or with others.
(2) Nobody is carrying away his treasure arbitrarily.
Meanwhile, provisions governing indigenous forests
and state forests in several articles in Law. 41 Year 1999 on
Forestry (Forestry Act) continue to recognize the existence of
indigenous forests. However, AMAN in their suit to
Constitutional Court rejected this argument. They argue that
Forestry Law has been proven as a tool of the state to take
over union rights of indigenous forest in forest management,
which is then used as a state forest. Therefore, they asked the
Court to reverse and canceled some of the provisions in the
Forest Act because contrary to Article 18B Paragraph (2),
Article 28D paragraph (1), Article 28G paragraph (1), Article 28
paragraph (3), of the 1945 Constitution48.
Meanwhile, Article 13 to 19 ILO Convention 169
highlights the indigenous people’s rights to natural resources.
These rights include the rights to land and all resources under
and over the land, which are authorized by the indigenous
people even they are nomadic. In addition article 15 states that
the indigenous people’s rights must be protected. Hence, if the
state has rights over mineral on the land, it must provides the
consultation mechanism. This consultation to ascertain how far
48
See hukumonline.com, UU Kehutanan Lindungi Hak
Masyarakat Adat (Forestry Law Protects the Indigenous People Rights),
November 19, 2012.
http://www.hukumonline.com/berita/baca/lt4fbce5794662e/uu-kehutanan-
lindungi-hak-masyarakat-adat accessed on November 19, 2012.

65. 65
the indigenous people’s rights affected before the state
exploites and explores the mineral resources in the land. In
addition it must be ascertained how can the indigenous people
take benefit and receive the fine caused the exploration49.
D. Oil Palm Policy and Indigenous People Position
The idea to plant the Oil Palm in the border area was
coined by the late Minister of Agriculture, Anton Apriantono in
2005. He argued that revitalize the land surrounding the
border by planting the oil palm could improve the local people
economic welfare. Because it will absorbs a hundred of the
employees from the local people. According to Anton, palm oil
plantation goal is for the purpose of national security and the
welfare of people living in the border. Of course it opportunities
for investors, both domestic and abroad, due to it is necessary
to build oil palm Rp.5.5 trillion dollars within 5 years future.
Because of relatively low population density Borneo is
between 11-27 per km2, then for the purposes of the
transmigration program that will be an option. For the initial
stages development of oil palm plantations in West Kalimantan
focused in Sambas district, Bengkayang, Sintang and
Sanggau whereas in Central Kalimantan in Kapuas. The
dream to plant oil palm is certainly highly regarded as being
promising. It because the nation needs of answers to various
problems such as: jobs, revenues and alternative sources of
energy.
According to data from BPS50 as described in the Table
1, the largest area of oil palm plantation is in the District of
Border Ketuangau Hulu, Putussibau. It reaches 4,026 areas
(ha), whereas the smallest is in the district of border Paloh,
Sambas. This data indicates that the plantation of oil palm in
the district of border has changed the forest area in the region.
This forest change, of course impacted to the local people
49
See Bosko, 1999. Hak-Hak Masyarakat Adat…Op.Cit. p.121.
50
BPS. 2010 and 2011. Indonesian Oil Palm Statistic. Jakarta:
BPS.

66. 66
revenue from forest. It seems that the plantation of the oil palm
didn’t recognize the spatial planning regulation as stated in the
Government Regulation No.26 year 2008 on The National
Spatial Planning Area. This indicates by the spread of the oil
palm plantation is not well managed in the border forest.
In the middle of this estate development process, start
to hear complaints from local communities (Dayak tribe)
associated with various negative effects they felt after the
entry of oil palm plantation company, for example: the more
difficult to find clean water, more difficult to gather firewood,
the more difficult for farming traditionally for their daily wages
from the company was not enough to meet the daily living
needs51.
Table 1
Broad Area, Production and Total Oil Palm Plantation
In the West Kalimantan Border 2012
District of Area Production
No Regency Plantation
Border (Ha) (Ton)
1 Sambas Sajingan Besar 1,336 - 11
Paloh 214 - 10
2 Sanggau Entikong - - -
3 Sintang Ketungau Hulu 4,026 216 -
4 Putussibau Badau 3,872 - -
Empanang 2,905 - -
Puring Kencana 1,858 - -
5 Bengkayang Jagoibabang - - -
Source: BPS West Kalimantan, 2012.
Failure of project planning will bring disaster to the use
of space and bring tremendous damage that could not be
51
For instance this situation happened in the District Border of
Kapuas Hulu, such as: Badau, Puring Kencana and Nanga Kantuk. See
Kompas reports 28 February 2011. Masyarakat Kecamatan Embaloh Hulu
Menolak Perkebunan Sawit di Wilayahnya
http://regional.kompasiana.com/2011/02/28/masyarakat-kecamatan-
embaloh-hulu-menolak-perkebunan-sawit-di-wilayahnya/ accessed on
November 25, 2012.

67. 67
returned to its original level. In his mind, still remembered
mega farm project in Central Kalimantan by averting enable
the 1.7 million hectares of peat forest. Mega projects planned
by placing respective received 316,000 families with 2.25
acres of farmland. More than 1.5 trillion dollars has been
invested there to build canals and the homesteader. Illegal
extraordinary had happened in the forest peat. The project
was a total failure due to lack of spatial planning and land
suitability for agriculture. State loses financially, depleted peat
lands, connoisseur’s timber harvesting permit "debauchery",
and peat carbon sink function of forests lost forever.
Meanwhile, members of the Alliance of Indigenous
Peoples Archipelago (AMAN) in West Kalimantan judge
hostage a number of heavy equipment palm oil company PT
Ledo Lestari Jaya Semunying Village, District Jagoibabang,
Bengkayang, because it proved to work on customary land
area of 13,000 hectares, could affect disintegration. It can only
be seen from the eyes of the law and government rules and
regulations. It must be realized, the Dayak Iban village
Semunying Jaya has close ties with the Dayak Iban in
Sarawak state, the Federation of Malaysia. PT Ledo Lestari
and PT Ceria Prima and PT Virata Build the Great
Bengkayang, go in a group company PT Duta Palma
Nusantara, owned by Surya Darmadi and Maj. Gen. (Ret.)
Sardan Marbun (Special Staff of President Susilo Bambang
Yudhoyono Social Communication Division). Three's company
since 2004 proved to loot productive forest area of 28,000
hectares of oil palm plantations so without a license from the
Ministry of Forestry's release. Village Secretary Semunying
Jaya, Abu Lipah in separate places, asserted, hostage heavy
equipment and blockades base camp in the village of PT Ledo
Lestari Jaya Semunying, will end if the company is no
guarantee of actually stopping land clearing in the area of
indigenous Dayak Iban tribe.
Head of Government Regional Secretary Bengkayang,
Aleksius, explains the problem of conflict management with
the PT Ledo Lestari has been going on in recent years.

68. 68
Ironically, a number of recommendations presented by the
Government ever Bengkayang not always run by the
management of PT Ledo Lestari. Heavy equipment PT Ledo
Lestari society hostage includes three excavators, three
trucks, one bulldozer, two chainsaws, three two-wheeled
vehicles, and a nursery area.
In connection with that, Sujarni warned the government
to be able to see social conflicts related to struggles over land
in Desa Jaya Semunying wisely. Social problems that
occurred at the border will be easily internationalized by a
number of parties who are not responsible, if less well
handled. TNI, Police, Ministry of Interior, Ministry of
Agriculture, Government of West Kalimantan Province and the
Government must synergize Bengkayang to resolve problems
that occur, in order not to develop into issues that could harm
the interests of Indonesia economically and politically.
According to Sujarni, actually lands retained the Dayak
Iban live 1426 hectares of 13,000 hectares of previously, after
compromise the company and the people who facilitated the
government. In 2010, the Government issued a decree
Bengkayang determination of indigenous lands in the village of
Dayak Iban Semunying Jaya area of 1426 hectares. The
situation becomes worse, said Sujarni, after the management
of PT Ledo Lestari provoke communal practice, so the
remaining 1426 hectares of customary land was partly
transformed into oil palm plantations, without going through
the process of a thorough discussion, especially from the
pattern of results that will be offered.
Head of Public Relations of West Kalimantan Regional
Police, Assistant Commissioner of Munandar, said police had
been sent to the conflict to anticipate everything that is not
desirable. Currently, negotiations continued. Data SAFE West
Kalimantan Province in 2011, recorded 67 cases of agrarian
conflict that almost occurred in all districts in the province, of
which 18 cases were categorized criminalization of the oil
palm plantations and mining communities seeking to preserve
their land.

69. 69
Data from The Indonesian Environmental Forum
(Walhi) West Kalimantan Province, recorded from 2008 to
2011 was about 280 conflicts between people who try to
defend their land being tilled by the investors in the
development of oil palm plantations in the province52.
The data indicates that the oil palm development in the
region is rejected due to the planning management didn’t
recognize the indigenous people aspiration. From this we can
see that if in the planning process the local people neglected,
how about the economic benefit from the oil palm?. This data
also show that the motive of oil palm plantation in this context
is far from the effort to increase the border people welfare.
Conversely it gives the new economic opportunity to certain
party, who want to take benefit from the situation.
Another reason of oil plantation program in the border
is to race the economic development in the neighbor country,
Sarawak. This effort is a political ambition and tends to not
make sense. Because, since the long time, the oil palm
become their economics excellent in frontier. It means the
plantation of these resources with the comprehensive planning
from the row to mass production. However, Indonesia actually
has more diversify product from our forest, such as wood,
farm, medicine, and other forest product. Hence, if we focus to
our strength, our border economic will more attractive than
Sarawak. Ironically, The Malaysian company owns almost
60%53 of the oil palm in the border. In the other word, that the
52
Aju, April 12, 2012. Konflik Sawit di Perbatasan (Oil Palm
Conflict in The Border) <http://www.shnews.co/detile-420-konflik-sawit-di-
perbatasan.html> accessed on November 19, 2012.
53
This data is quoted from the TVOne News in the mid of October
2012. Today almost half of the land that has been cultivated in Malaysia is
palm oil, and the country has become the manufacturer and the largest
exporter of palm oil, though Indonesia is quickly gaining ground. The two
countries, Indonesia and Malaysia, exporting these products in large
quantities to China: Malaysia's exports to that country alone is expected to
increase more than 20 percent from 2.9 million metric tons in 2005 to more

70. 70
political ambition to race with the neighbor economic
development is contra productive.
This situation is positioning the border people as a
labor for the giant company of oil palm from Malaysia. As we
know that oil palm is the main plantation in the Malaysian
border. So, when Indonesia opens their border forest to oil
palm plantation, this situation is cached as a big opportunity to
expand their business in the region.
E. Conclusion and Remark
Environmental approach as one of the major paradigm
in developing border state is a strategic policy. However, this
approach should be planned and maintained well. In this
contexts, the plantation of oil palm as a real implementation in
the border will failure if it is not managed and prepared well.
The raise of conflict surrounding the border indicates that state
still neglecting the local people. The policy was created by the
central government without involving the local people.
Meanwhile, the reasons of plantation the oil palm such
as: economic development, security and political race with
Malaysian are contra productive. As a neighbor country, we
should respect to the neighbor country. The principles such as
mutual understanding, mutual benefit, and mutual respect
should be the guidance in developing the state border. The
interplay of social, economic and culture are the natural
character for neighboring country relation. Hence, the spirit of
competition should be replace with the cooperation.
In the context of environment development, the oil
palm plantation is not strategic choice. However, the border
natural resources are varying in the form and type. In addition
the local people’s economic life are hanged up to the forest.
So, the oil palm plantation is an alien resource. They don’t
have experience and even knowledge how to plant and sell it.
On the other hand, the owners of the oil palm are Malaysian
than 3.2 million metric tons in 2006, representing almost 1 percent of the
total value of exports of Malaysia. See Butler, Op.Cit.

71. 71
company. It means that the economic competition aims are
inconsistent. It’s just placing the border society as the labor in
their home country. Ironically, the company determines the
price of the oil palm. In this context the border people doesn’t
have choice, because there is no more market choice.
On the other hand, the unwell planning of the oil palm
plantation has raised the social conflict in the border region.
This is would be the second disaster after illegal logging in
which destructing their forest. This situation, off course, brings
the social and economic life of the border people getting
worse. Hence, the idea to develop the economic welfare under
border grand design 2011-2025 will fail if this project is not
managed well by creating a strategic consultation mechanism
with the local people in the border area.

72. 72
REFERENCES CITED
Afia, A. (211). Kerusakan Hutan di Kalimantan (The
Devastation of Forest in Kalimantan).
http://green.kompasiana.com/penghijauan/2011/08/01/
kerusakan-hutan-di- kalimantan/, accessed on
November 17, 2012.
Aju, April 12, 2012. Konflik Sawit di Perbatasan (Oil Palm
Conflict in The Border) <http://www.shnews.co/detile-
420-konflik-sawit-di-perbatasan.html> accessed on
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Arifin, S. 2010. Prevention of the Border Society Migration to
Sarawak Through Revitalizing of the Border Economic
Potention, (Fundamental Research of Research and
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Arifin, S. 2011. People Migration and Its Implication to the
West Kalimantan-Sarawak, Malaysia Border Security.
Jurnal Masalah-Masalah Hukum, Vol.40. No.2 April
2011 p.220-227.
Butler, A.R.2008. Kenapa kelapa sawit menggantikan hutan
hujan?. Kenapa biofuels menggerakkan penggundulan
hutan?.
http://world.mongabay.com/indonesian/sawit.html
accessed on November 25, 2012.
Bosko, R.E. 1999. Hak-Hak Masyarakat Adat Dalam
Pengelolaan Sumber Daya Alam (The Indigenous
People’s Rights in Maintaining the Natural Resources),
Jakarta:Elsam.
BNPP, 2011. the Grand Design for Border Management 2011-
2025.

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ELSAM. Pembangunan Perkebunan Sawit di Perbatasan
Indonesia-Malaysia: Diskriminasi Rasial terhadap
Masyarakat Adat, available at
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=c/401, retrivied on October 11, 2012.
Ganewati, et al. 2009. Keamanan di Wilayah Perbatasan
Inonesia-Timor Leste (The Territorial Security in
Indonesia-Timor Leste), Pustaka Pelajar, Yogyakarta.
Hukumonline.com, UU Kehutanan Lindungi Hak Masyarakat
Adat (Forestry Law Protects the Indigenous People
Rights), November 19, 2012.
http://www.hukumonline.com/berita/baca/lt4fbce57946
62e/uu-kehutanan-lindungi-hak-masyarakat-adat
accessed on November 19, 2012.
IWGIA, Policies and Strategies Related to Indigenous People’s
Rights <http://www.iwgia.org/human-
rights/policiesstrategies-on-indigenous-peoples>
accessed on November 25, 2012.
Pantonanews, May 8, 2012. Kondisi Hutan di Kalimantan (The
Forest Condition in Kalimantan), retrieved from
http://www.pantonanews.com/1451-kondisi-hutan-di-
kalimantan-barat, accessed on November 17, 2012.
Riyadi, E. 2009. Masyarakat Adat,Eksistensi dan Problemnya:
Sebuah Diskursus Hak Asasi Manusia. Prolog on
Bosko Book: Hak-Hak Masyarakat Adat Dalam
Pengelolaan Sumber Daya Alam (The Indigenous
People’s Rights in Maintaining the Natural Resources),
Jakarta:Elsam.

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Riwut, T. 2007. Kalimantan Membangun Alam dan
Kebudayaan (Kalimantan Build Nature and Culture).
Yogyakarta: NR Publishing.
Sunito S. 2005 review on the Book: Strengthening Forest
Management In Indonesia Through Land Tenure
Reform. Issues and Framework of Action. By:Arnoldo
Contreras-Hermosilla; Chip Fay. Published by Forest
Trends dan World Agroforstry Centre.
Law Number 17 Year 2005 on Development Plan National
Long (RPJPN) Year 2004-2025
Law Number 43 Year 2008 on Concerning Regional State
Law Number 26 Year 2007 on Concerning Space
Law Number 27 Year 2007 on Regional Coastal and Small
Island
Government Regulation Number 26 Year 2008 on The
Regional Spatial Planning (RTRW).
Presidential Regulation Number 12 Year 2010 on The National
Body for Border Management.
Presidential Regulation Number 12 Year 2010 on the National
Border Management
Presidential Regulation Number 5 Year 2010 on National
Medium-Term Development Plan (RPJMN) in 2010-
2014
Presidential Decree Number 78 Year 2005 on Management
Minor Outlying Islands

75. 75
Home Ministry Rule Number 2 Year 2012 on The Guidance for
Establishing the Local Authority for Border
Management.

76. 76
CRIMINAL LAW POLITICS
TO HAVE THE MULTI RELIGIOUS PLURALISM
ABSTRACT
By
Marsudi Utoyo
The plurality of religious life in Indonesia attract each
other, leading to problems between theology, history and
primodialisme, pluralism when dealing with issues of theology
in the internal environment of religious themselves, whether
Catholic, Protestant, Islam, Hinduism, Buddhism,
Confucianism and other religions, still preoccupied by the
question of truth claims (truth claims) by forgetting the esoteric
aspects of the existing religions. Religion is the main gateway
to be opposed when the destructive efforts (truth claim) to
another entity. Pluralism is carried here departs from socio-
religious, where religious pluralism as a basis for bring forth.
The approach of this research included into streams
socio-legal studies approach to phenomenology, symbolic
interactional and hermeneutics. Data collection methods
include observation, interviews, questionnaires and a survey of
the main resource person, a person familiar multi religious
adherents, the police, prosecutors, judges and leaders of all
faiths in the city of Palembang.
In Article 29 paragraph 1 and 2 of the Constitution of
the Republic of Indonesia in 1945, is a law in the realm of
political guide religious life. It's really interesting here is the first
principle, namely Belief in God Almighty attributed to
underwriting by the state of religious freedom in life.
Conclusions, to understand the politics of criminal law
is to protect religious pluralism and respect the feelings
between religion and belief, to be protected by freedom of
religion within the framework of one almighty deity.
Recommendations is a country must be able to
translate / anticipate every opportunity of freedom of religion

77. 77
for religious life and beliefs, so that should not pose multi-
dimensional conflict of religion.
Keywords: Pluralism, Plurality, Understanding Multi Religious,
Political Law.

78. 78
Habitus Constitutional Transformation:
Critical Legal Studies Abandonment of Constitutional
Rights Residents of Moro-Moro Register 45, Lampung
Regency Mesuji
OKI HAJIANSYAH WAHAB
(Ph D Program in Law Science at Diponegoro University,
paman_mao@yahoo.com, 081927814324)
TANIUS SEBASTIAN
(Student Matriculation Programme Postgraduate School of
Philosophy (STF) Driyarkara, Jakarta.sabastian_tanius@yahoo.com,
081802116129)
Our Constitution clearly provides the provision of protection the
citizen constitutional rights. The idea of constitutionalism
contains the notion of limiting the power and rights of the people
guaranteed by the Constitution. Yet in some places , especially ini
agrarian conflicts area, tehe citizen constitutional rights has
been ignored. Moro-Moro communities living in forest areas
Registers 45, Mesuji Lampung is a portrait of people who for a
dozen years lose their constitutional rights. The local Government
does not recognize them as residing in forest areas are managed
by private companies. Critical legal perspective always see this
kind of legal enforceability can not be separated from the
authority just what was behind it, and a power struggle in society.
Critical legal theory emphasized the need for the study of law is
not limited to a review of the material from a legal rule or
legislation, but also should take into consideration all aspects of
community life. Of Bourdieu's sociological reflection, the latter
proposition gets significant portion as a habitus tensions amid
claims of political economy which raged. Critical thinking in law in
view of the constitutional rights of this problematic should make
way for a transformation in the Indonesian constitutional habitus.
Keywords: Constitutional rights, Ignoring, Critical Legal,
Constitutional Transformation of Habitus

79. 79
ABSTRACT54
The working process of law is influenced by the
component of the substance, structure and the legal culture.
The importance of positive and creative legal culture is to
achieve people's welfare, but in social realities of fishing
communities, especially traditional fishermen, and fishing
workers are exposed to negative legal culture conditions
resulting poverty. Reconstruction is the effort that must be
taken by staying in the primacy of law ideal values of
Pancasila. It creates the problems why the legal culture of
fishing communities which is not constructive leading to the
poverty and how it is related to government policies and its
reconstruction to their welfare. The aim of the research is to
explain the importance of value of legal culture reconstruction,
to build the legal empowerment, and to achieve social welfare.
This study uses qualitative methods with socio-legal
approach and constructivism paradigm. The method of
collecting the data is through Legal Culture Theory, Symbolic
Interaction’s Theory, and Empowerment Theory to collect,
reduce, verify and present the data in the territory of fishing
community in Cirebon municipality and regency.
The study finding are: 1) A necessity to have a
positive and creative legal culture to achieve prosperity and
welfare of fishermen and fishing workers through the
implementation of values of confidence, cooperation, trust,
optimism, honesty, social politeness, social care 2) Legal
culture of fishing communities formed over the years, the belief
in values of hard, radical, ignorant, wasteful, apathetic, and
pessimism caused by the formation of more mechanistic top-
down policy. It should be changed into the model of
participatory and humanistic, value-based social justice and
democratic; 3) Reconstruction of legal culture, in the context of
the values should be made to realize prosperity and welfare of
fishermen in accordance with the mandate of Article 33 of the
54
Dr. Endang Sutrisno,SH.M.Hum

80. 80
Constitution of the Republic of Indonesia, 1945, with the basic
strategy using the values of law ideals (rechtsidee) Pancasila
in order to construct new legal culture values that are priority
to collective interests, the recognition of progression of local
wisdom values, sustainable development, and substantial
behavior (the spontaneously generated law) namely honesty,
cooperation, social politeness, social concern. The conclusion
is that the negative legal culture in the fishing community
results the negation of law progressive values although the
regulation contains the view as the Progressive of Law.
Therefore, the reconstruction of the Legal Culture dealing with
the values is primary condition to be recommended by the
Local Government. It must be able to formulate a more
participative and humane policy to develop the welfare of
fishing communities.
Key words : Legal Culture, Reconstruction, Progressive
Values, Fishermen Welfare.

81. 81
ABSTRACT55
The Power of Sociology of Law in the de56cision making
process
This international symposium is a good opportunity for us
because all schoolars gather and discuss together to give
enlightment the perspective Pierre Bourdieu, what the
sociology of law is. Let me begin with the state that sociology
of law has legal power. the core of this sociology of law in this
context is discusses aspect “positive of the positive law”. It
means law regarded as only act or regulation itself but also
how to implement in society and its result accepted. In related
to this assumption, this paper describes the power of sociology
of law in the decision making process. The mentioned
sociological power are socials and legal factor which can be
used as input into the legal structure, legal decision, and last is
legal outcome such as in the court process.
To explain it, for example, belowed I try to take, for example,
the trial court proceedings which focus on the establishing
mens rea (criminal intent) and actus reus (the criminal act). If
both are shown conviction results. The defendant insists, the
opposing lawyer will simply “object” and the judge will sustain,
even telling the jury to disregard what was said. The point is,
certain factors that are part of why people act the way they do
are not given codification, are not entertained in a court of law
(see Bourdieu, 1987: 831-82). They are non-justiciable. Thus,
another reality is never made visible. “Relevan” factors for
decision-making are reduced to a narrow frame. “Facts” are
cleansed and sterilized. They are abstracted and removed
from their overall concrete context (see Milovanovic, 1994)
55
ade saptomo
56
Guru Besar dan Dekan Fakultas Hukum Universitas Pancasila

82. 82
LAW AND ECONOMICS
"CRITICS ANALYSIS OF THE MINIMUM WAGES IN ORDER
TO ACHIEVE SUBSTANTIVE JUSTICE"57
Abstract:
Everyone needs income for life. Determination of minimum
wage workers always give rise social conflict. There are a
sharp conflict of interests between employers and workers in
determining the minimum wage. Workers want to high wages,
but employers want to low wages. At the beginning of 2012,
the Bandung State Administrative Court decision (PTUN
Bandung) have resulted to strike and closure of the highway.
The purpose of this study was to analyze whether the rule of
law on the minimum wage reflects the substantive justice? The
research method used was sociolegal. This study discusses
whether the minimum wage rule can serve as legal problem
solving for workers to achieve welfare. Are the rules on
minimum wages are in line with ILO Convention No.131. Are
the court's decision on the minimum wage are substantive
justice? The result are minimum wage laws do not serve as
legal problem solving. Substance components as objects
decent living minimum wage has not been in accordance with
the ILO Convention No. 131. The authority of the Wages
Councils (tripartid elements: workers, employers, government)
have not been up for only a limited a recommendation.
Procedures formulation of the minimum wage has not applied
the principle of transparency. The impact of unfavorable wage
systems was chosen to strike and shut down the highway as a
form of forum shopping. There are two recommendations, the
first component of the revised the substance of decent living in
the minimum wage. Second, the revision of the minimum wage
Dr. Asri Wijayanti, SH, MH.
57
Lecturer in Faculty of Law University of Muhammadiyah
Surabaya

83. 83
determination procedure based on the principle of
transparency.
Keywords: minimum wages, decent living components,
principles of transparency, justice substantive.

84. 84
Title : The “THOWAF” Model in Criminal
Justice
Name of the writer : Dr. H. Kuat Puji Prayitno, SH.MHum.
Profession : The Lecture of Law Faculty in Unsoed
Purwokerto
The ideal of Indonesian law which is based on
Pancasila can not be seperated by the value of Ketuhanan
yang Maha Esa. The principal of law suprame is an expression
of the believe to Tuhan Yang Maha Esa.
Based on the the traffics national Law policy, there is a
good interaction among the aspect of religious, law, society,
and nation in criminal justice. The justice is almost similar with
the process of thowaf. The using of terms “ thowaf” it doesn’t
mean that the fanatism to the certain religious, but more based
on the reason to improve and develop principle work
religiously in criminal justice.
The general principles of criminal justice theory on
“thowaf” model have some characteristics, those are as
follows:
1. Criminal Justice is established based on Ketuhanan Yang
Maha Esa , so criminal justice is an activity to find out the
God’s allowness.
2. The Centre of criminal justice is law formulation in form of
sentence. Judge’s decision as rule making institution/judge
made law.( see: Chambliss & Seidman);
3. Judge‘s decision is made based on the observation result
due to the crime, criminal, victim, and society (Socio-legal
approaches). The integral interaction refers to the
character of substatif justice;
4. Ka’bah is the symbol of the truth and the eternal of God
with the charácter of adil, honestly, and blessing. Ka’bah
faced to all the directions, so the criminal justice have to
carry out the head the nature of “universalism”;
5. Thowaf needs people who braved, deciplined, and must be
far away from carácter of individualistic, as a form of
believe to God. By doing thowaf , you are as a “ syahadat”

85. 85
(sacret) which is called “ syahid” . As a sacret of the justice
in the court.
6. Thowaf is done only for God (ikhlas), therefore, in the
application of criminal law must be done only for God. It
must be saved and cleaned from dirty characteristics.
Thowaf is an apropriate model for Indonesian criminal justice,
therefore, the basic ideas must be implemented in the process
of criminal justice.

86. 86
GLOBALIZATION AND FUNDAMENTAL VALUE OF UUD
1945 AS THE SOCIAL CONSTITUTION
(Debating State Policy within the Laws Aegis Framework)
By :
Dr. HS Tisnanta,S.H,M.H
(Centre Of Public Policy and Human Right Lampung University)
Email : s.nymus@yahoo.co.id, phone number : 081279531999
UUD 1945 is the Constitution which as foundamental norm of
social state policy to realize the ideal of Pancasila’s law.
However, the strong influence of liberal ideology, which tend to
place market as its goals, causing marginalization of social
rights and economic rights of citizens. There for strategy in the
legal delevopment is strongly needed through the conceptual
approach to pursue state roles and responsibilities.
According Jimly Asshidiqie, state roles and responsibilities is
developed through triadic relationship among state, civil
society and market. This role is manifested in the formulation
of state policy in accordance with the position and function of
each actor. As welfare state based on Pancasila, state policy
should be placed in the relationship among law,
institutions/state and economics, as conceptualized by David
Trubek. State policy is an instrument to realize human dignity
as a fundamental value based on Pancasila Ideology.
State policy is an instrument in structuring social and
economics giving preference to citizens and creating citizens'
access. State policy should be built based on the concept of
legal purposive that give flexible standards. The concept of
legal purposive requires a progressive approach that puts the
principles of responsiveness as the core of morality. This
principle, serve as a material and formal principle in the
formulation of the state policy in favor of the people. The
preference shall be the basic to uphold the unity and

87. 87
sovereignty of substantial aspects of the welfare state policies.
Thus, the character of the state policy shall be aimed to
encompass both nurturing the citizens and became the aegis
in dealing with global challenges.
Key words : Globalization, Fundamental Value, social
constitution, state policy, Hukum Pengayoman. Aegis
Framework

88. 88
ABSTRACT
TITLE: POSITION AND FUNCTION OF LAW IN SOCIETY
Measuring the return value as a source of essential legal
policy and virtue
by Dr. Titik Triwulan Tutik, MH
Faculty of Syariah IAIN Sunan Ampel Surabaya
One side of the position and function of the law that essentially
is a state (symptoms) that apply in the social as a
manifestation of a growing pattern of behavior. This means
that the new law is considered as a law, when the imposing
and patterned behaviors so.
Thus grounded in reality, the law basically can not be
separated from society (ubi societas ibi ius), because the two
have a mutual relationship, which according to the universal
nature of the law is to regulate all aspects of community life.
So it is in the law because the law only exists in the
community.
The problem is that today there is a disparity in enforcement of
law in society. The law has made a political tool that aspect of
justice as the basic substance in society has lost his soul, the
law has been separated from intrinsic values as a source of
social and mental sense of justice.
Under such conditions, the law needs to be returned to her
identity is a noble As with patterns of behavior in public life.
Laws should be a source of wisdom and virtue, because only
then the law will put him.
Keywords: ubi societas ibi ius, law intrinsic value, the source of
wisdom and virtue

89. 89
Land Tenure Rights Owned by Foreigners
In The District West Lampung
By: FX. Sumarja, SH, M. Hum.
(Faculty of Law, University of Lampung, is pursuing a
doctorate in jurisprudence UNDIP Semarang,
fxsmj.unila@gmail.com)
Abstract
Mobility of foreigners from the country towards other countries
is increasing and cannot be avoided in the era of globalization.
Foreigners who enter Indonesia were to be tourists, workers,
and investors. Some of them are interested to own land. It’s
indicated quite a lot of foreigners who controlled land in
Indonesia. This study wanted to know the rules of the
ineffectiveness of the prohibition ownership of property by
foreigners in South Krui District, West Lampung regency.
The research method used to study normative juridical and
empirical approaches. Data collection methods include
observation and interviews of the informant that the village
head, district and community leaders at the sites.
Indonesian Land legislation prohibits foreigners to own land
property rights. Foreigners allowed owning land leases and
rights to use, but they are not interested. They chose to control
land ownership by way of borrowed names, power of attorney,
the option agreement, and lease agreement, the power to sell,
grant probate, or married to citizens. For the issue is not a
problem. They benefit the economy for a moment. There are
regulations that provide convenience of foreigners controlling
land property rights. There is an absolute power agency,
streamlining permit transfer of land rights and land
certification.
The inference rule is the prohibition of land ownership of
property by foreigners is not exhaustive and is not able to

90. 90
resolve the issue of land ownership of property by foreigners.
Inability was due to the factor of legal and non-legal. Non-legal
factors include social and economic factors.
Keywords: land tenure, property rights, foreigners

91. 91
THE INTEGRALISTIC OF CRIMINAL LAW ENFORCEMENT
SYSTEMS TO FACE THE HUMAN TRAFFICKING CRIME
ABSTRACT
By
Heni Siswanto, SH, M.H.
Human trafficking crime (HTC) has been transformed
from ordinary crime into extra-ordinary crime responsed by the
Indonesian Government issued of Law No. 21 Year 2007 on
Combating of Human Trafficking Crime (Law CHTC). The
setting changes of the legal substance should be change the
legal structure and the legal culture in the criminal law
enforcement (CLE). The case of the HTC should be treated as
a specific offense to use in extra-ordinary measures for the
legal protection of women and children.
The research method used to study juridical normative
with normatif and factual juridical approaches. Data collection
methods include observation, interviews, questionnaires and
surveys of key informants by the polices, prosecutors, and
judges as well as supporting speakers were lectures, lawyers,
NGOs, PJTKI, and the community leaders with research sites
in Pati, Jepara, Semarang and Bandar Lampung.
During this time CLE to face HTC held not qualified.
Practical CLE tinged foul play. CLE is run with weakened of
the scientific approach by a partial approaches to aspects of
legal substance, legal structure and legal culture in their
respective of law enforcement officers. To improve the quality
of CLE needed the integralistic of criminal law enforcement
system (ICLES) by the scientific approach and the idea of
balance in the creation and CLE are implemented at cases of
HTC in criminal act, guilt/criminal responsibility, and the
punishment/ sentencing.
Conclusions are facing CLE required changing in the
legal system. Changes implemented in ICLES by the scientific

92. 92
approaches and the ideas balances for materialized of
substantive justice. Recommendations are less qualified of
CLE required the scientific approach/religious who is expected
to encourage a change of morality, integrity and
professionalism of law enforcement officers.
Keywords : The integralistic of criminal law enforcement
system; human trafficking crime.

93. 93
Legality versus Morality: Moral Reading and the Case of
Pemilukada in Tulang Bawang Regency of Lampung
Province
Rudy, S.H., LL.M., LL.D
Center for Law and Constitution Studies
University of Lampung Faculty of Law
rechtboy@yahoo.com
Abstract
General Election for the Head of Local Government
(Pemilukada) has become one of problematic feature in our
democratic ways of managing the nation. This problematic
feature is happening in many regions; in Lampung, the
problem of Pemilukada has been encompassing the problem
legality versus morality. Specifically, Tulang Bawang Local
General Election Commission which has been hailed as
winner by Administrative Court, decided guilty ethically and
morally by Election Organizer Ethics Council (DKPP). Five
members of the Tulang Bawang KPUD acted unprofessionally
by annulling the pair from the election.
Academically, a core difficulty in the search for justice is the
coexistence of different legal and moral system since there are
three legal and moral efforts has been given to Pemilukada
participant: Legal effort through Administrative Court (PTUN),
Moral effort through Ethic Hearing and the last is through
Constitutional Court (MK) which operates within the area of
legal and moral. The systems are coexistence, thus creating
the confusion of legality versus morality.
This article takes one aspect of the question of the search for
justice, that of its relation to the ubiquitous phenomenon of
legality and morality. The article thereby attempts to place the
problems of Pemilukada within the discussion of legal versus
moral using Dworkin moral reading doctrine and moral function

94. 94
that Raz believes lawmaking must aim to fulfill. These
doctrines, thus, shall be framed in MK decision as the court of
legal and moral. This paper turns attention on how MK is
responding to resolve the duality of legality versus morality.
Keyword: Legality, Morality, General Election, Constitutional
Court.

95. 95
Area: Law and Society
Author´s Name: Sandra Milena Gómez Santamaría. Lawyer
(University of Antioquia, Colombia). Master of Arts in
Sociology of Law (International Institute of Sociology of Law in
Oñati, Basque Country-2010). I´m currently working as
researcher in civil and political Rights and International
Humanitarian Law at the Colombian Commission of Jurists, a
Human Rights NGO. My areas of special interest are sociology
of law, critical theories of law, Anthropology of the State, and
Postcolonialism decolonial Studies.
Lay people in the juridical field: alternative presences and
alternative uses
Law is part of the life of people. Although it determines and
face them in many ways, it is also a social universe, not just an
institucional one. This conception of law needs various
theoretical and methodological tools that allow to account for
the different ways in which the law is recreated and it appears
in social settings, for understanding its rationale. For doing so,
in this paper the proposal of Reflexive sociology by Pierre
Bourdieu will be explored as a cultural perspective of law, in
order to establish which are the contributions for the debate of
law in our societies. Some of the main categories of
Bourdieu´s construction about law as a juridical field will be
critically explored, especially the role of lay people into the
juridical field by challenging it through reflections about the
effects of the symbolic violence and the habitus in the uses of
law. This paper is a theoretical reflection that takes into
account a literature review about Bourdieu´s perspective,
taking into account the particularities that the colombian
context entails for understanding law and its effects in social
and political lives. Being close to perspectives as proposed by
Legal Consciousness Studies, the reflection about lay people
points out that the legal professional domain not fully describe
the uses of law and we need to go beyond to understand not

96. 96
just the complexity of the uses, but also the implications of the
symbolic violence in everyday life58.
Keywords: law, culture, legal field, symbolic violence,
resistance
58
Patricia Ewick and Susan Silbey. Conformity, Contestation and
Resistance: An Account of Legal Consciousness.

97. 97
Environmental Legal Protection on Coal Mining Management
at The City of Samarinda
Siti Kotijah, SH., MH., IneVentyrina, SH., MH., Ida Wahyuni
S.Sos, M.SciLecture at Faculty of Law of University of
Mulawarman at Samarinda, East Kalimantan, Indonesia.Head
Office: Sambeliung Street, Kampus Gunung Kelua University
of Mulawarman
Abstract
good living and healthy environment is the individual right
of every citizen of Indonesia which is guaranteed by Constitution
on Article 28 letter (H). Environmental legal protection of
management of mining in the town of Samarinda, refers to ACT
Number 32 year 2009 on The Protection and Management of The
Environment, and ACT Number 4 year 2009 on The Mineral and
Coal. Legislation above has be arranged about protection and the
management of mining, but in execution in the city of Samarinda
has not been maximum effort.This research is an legal research,
with legislation approach, and a conceptual approach. The
principle of protection of the environmental law has not been
optimally protect the communities surrounding the areas of
mining, even against the victim in the mining business district.
This is due to the distinction of implementation of the principle of
ultimium remedium in ACT Number 32 year 2009. It is caused by
problems of interpretation in the explanation of the LAW, a
greater emphasis on administrative sanctions and civil penalties,
to criminal sanctions as a last effort of environmental law
enforcement. Protection of environmental law against the victim in
the management of post mining became unclear in law
enforcement, since the distinction of application of the concept. It
is needed improvements in 3 aspects; substantive law, human
resources and infrastructure. There are barriers to the
implementation of this LAW: the condition of human resources in
law enforcement; there is no rule of ACT Number 32 year 2009,
there is still lack of legal awareness of society, and politicization
in the mines sector.
Keyword : Protection Law, Environmental Law, Mining,
Samarinda.

98. 98
THE HAUL FISHERY PROFIT SHARING SYSTEM BASED
ON ADAT LAW AND ACT NUMBER 16 OF 1964 IN
MUNCAR SUBDISTRICT OF BANYUWANGI REGENCY.
Djoko Wahju Winarno
Rahayu Subekti
Rosita Candrakirana59
The profit sharing principle of haul fishery result is
governed by Act No. 16 of 1964 about the Fishery Profit
Sharing. Such the profit sharing is done according to the
existing regulation and intended to improve the fisherman’s
standard of living in Indonesia particularly, in Muncar
Subdistrict, Banyuwangi Regency. In fact, however, the Act
No. 16 of 1964 is not implemented in the fisherman setting
because they have their own fish haul profit sharing tradition.
The subject of research was the ratio of fishery profit sharing
system used by the fisherman community in Muncar
Subdistrict of Banyuwangi Regency, namely Adat Law or habit
more with the national law, Act Number 16 of 1964 about the
Fishery Profit Sharing. Such the ratio was used as an overview
in developing the fisherman profit sharing that was fair and
acceptable to the fisherman community in Banyuwangi
Regency.
Keywords: profit sharing system, Adat Law
59
Lecturer of State Administrative Law of Faculty of Law of Surakarta
Sebelas Maret University

99. 99
Implementation of Law number 18 year 2008 to the final
destination of rubbish
(THE STUDY TO THE FINAL DESTINATION OF RUBBISH
OR TPA JATIBARANG, SEMARANG)
Nurul Fibrianti
Abstract
Final destination of rubbish (TPA) is a final place of
rubbishes from the society. TPA becomes very potential to
catch livelihood from the useless stuffs for a bagger.
TPA Jatibarang organized by Semarang Government.
The rule about organizing rubbish in the Law of Rubbish, one
of them is based on the safety point. This point describes that
the organizing of the rubbish should guarantee and protect the
society or citizen from the bad effects of it.
The people as the consumer could get the bad effect
from the organizing of the rubbish which doesn’t include the
safety point. In TPA, a bagger tries to take some useless stuff
and process it again. After they process them, they sell it in the
society again. In the other word, some crimes of the people
who are not responsible started from TPA. It may damage and
lose another people as the consumer.
those bad effects that affect the common society could
happened when the organizer of TPA doesn’t pay attention to
the baggers that look for some secondhand stuff in the TPA, or
even the organizer couldn’t make a clear rule about the
sterilization of TPA from the bagger.
The government of Semarang still cannot implement the
safety point or safety principle yet while they are organizing
the TPA which is found in The Law of Rubbish as common. As
a matter of fact, the Semarang Government still take no act
facing the activity of the bagger in Jatibarang TPA.
In the Law of Organizing Rubbish, the government as the
organizer of TPA should apply the safety principle in

Tenaga Pengajar Fakultas Hukum UNNES

100. 100
organizing rubbish. In The Law of Protecting Consumer, the
government also should hold the protection to the consumer.
Those two principle laws become the basis of the government
to make the district rule or law which can accommodate
consumer’s need as the responsibility of the government in
holding consumer
Keyword : the final destination of rubbish, Safety Point,
Consumer Protection

101. 101
PENAL MEDIATION AS AN ALTERNATIVE DISPUTE
SETTLEMENT OF CRIMINAL BASED ON THE CULTURE
SOCIETY
Cahya Wulandari,S.H.,M.Hum
The law has to move along with the dynamics that occurs in the
community. The law is not static but dynamic, adapting to the
developments and needs of the community. The inability of the
law to accommodate social change dynamically move will effect
deteriorating law and return to the condition before experiencing
progression or regression occurs. In essence, progressive law
does not move at the level of legalistic-dogmatic, analytical
positivism, but rather at the level of sociological. The law is not
absolutely driven by positive law or the law of legislation, but the
law also moves at the level of non-formal. In connection with the
settlement of disputes, it can indeed be reached using formal and
informal lines. The judicial process has many disadvantages
mainly related to the evidence at trial. Path litigation is a win-lose
principle. This is certainly very different from the principle of penal
mediation is a win-win solution that both parties can realize their
own interests without any aggrieved party. This has become a
discourse is possible penal mediation to resolve criminal case
and made the rule of law. Penal mediation is the most ideal
alternative dispute resolution, in accordance with customary law
and daily life, developed in accordance with the progressive legal
thought. Although in general, the settlement of disputes are
outside the courts only in civil disputes, but in practice criminal
cases are often settled out of court through a variety of law
enforcement discretion or in consultation/peace or forgiveness
institutions that exists in the community. Penal mediation is a
spark ideas as a form of dispute resolution outside the court of
law rooted in the culture of society.
Keywords: Penal Mediation; alternative dispute settlement;
criminal; culture society

102. 102
PLURALISM LAW AND STRENGTHENING STATE NATION
Martitah
Abstract
Indonesia is a multicultural country-style, including
the diversity of legal systems prevailing in the society.
This is because in addition to the system applicable state
law, the de facto there is also a system of customary
law, religious law, as well as regulatory mechanisms
(self-regulation) in public life. However, if observed
carefully the legal development paradigm adopted by the
government in the past three decades in the law is likely
to be centralism (legal centralism), through the
implementation of political unification and codification of
laws for all the people in the territory of the state (rule-
centered paradigm) . The implication, tend to displace
state law, neglect, and dominates the existence of other
legal systems, which empirically lived and operated by
citizens (living law), because it is aware of the law
functioned as governmental social control, or as the
servant of repressive power, or as the command of a
sovereign backed by sanction.
Keywords: Legal Pluralism, Nation State

103. 103
“Obligation of States to Implement the International Ship
and Port Facility Security (ISPS) Code in Terms of the
Vienna Convention 1969 on the International Treaties
(A Special Study Obligations Indonesia)”
By : Rindia Fanny Kusumaningtyas
ABSTRACT
International Ship and Port Facility Security (ISPS)
Code 2002 is a refinement of and amendment on International
Convention for the Safety of Live at Sea (SOLAS) 1974 on the
convention for safety of lives. The ISPS Code 2002 was
issued as an anticipatory measure by the world faced with
increasing threats on lives, particularly the threats on the
safety of ships and port facilities around the world.
Based on the background above, there were some
problems that might with addressed. Does the ISPS Code
constitutes an international treaty in accord with what has
been regulated in the Vienna Convention on the Law of Treaty
1969 on International Treaties? How is the implementation of
the ISPS Code in Indonesia and what are the obligations of
Indonesia State concerning with the imposition of the ISPS
Code? Therefore, this study was intended to understand these
problems clearly.
This study used a normative legal approach with
analyses emphasizing on the prevailing laws.
The study than showed that the ISPS Code constitutes
an International Treaty that has been in accord with the Vienna
Convention on the Law of Treaty 1969 concerning
International Treaties. Although the form of the “Code“ is not
known in the statutes for International Treaties, but as a unit of
an amendment convention it constitutes, through international
treaties that should be implemented in good faith in accord
with the principle of pacta sunt servanda, an International
Convention binding all states that are members of International
Maritime Organization (IMO). Particularly in Indonesia, the
imposition of the ISPS Code, based on the Decision by the

104. 104
International Traffic Ministry (No. KM.33-2004) on the
Imposition of the ISPS Code, constitutes of prove that the
implementation of the ISPS Code in Indonesia has been fairly
good. With the imposition of the statute on the ISPS Code,
then all IMO member states, including Indonesia are obliged to
implement the “Code“ with good faith.
Based on the conclusions drawn from the findings of
this study then it might be recommended that, for the use of
the safety of the ships and port facilities in Indonesia, the
Authorized Government (in this case Indonesia Government)
should issue an Act, which to have strong legal power, in order
to be used as a foundation for implementing the ISPS Code.
The Government should also make periodic inspections at
several Indonesia ports to check whether the implementations
of the ISPS Code have really met the prescribed conditions.
Keyword : Obligation of the States, ISPS Code,
International Treaties

105. 105
State Land Versus Customary Lands
(A Question Of Existence Ulayat Rights)
By Tri Andari Dahlan, SH.,M.Kn.
Article 2 paragraph (1) UUPA affirms that all the earth,
air, and outer space, including the natural riches contained
therein at the highest levels controlled by the state as an
organization of people's power. All the actions taken by the
state are directed to the interests of the state and should not
be contrary to the national interest and shall respect the rights
of traditional indigenous (customary) community that has been
cultivated and mastered by them.
Respect for customary rights to rely on the proviso "as
long as it was" to be such that in accordance with national and
state based on the unity of the nation and must not conflict
with the rules is higher. It contains interpretations vary from
one another, so there is an opportunity for the emergence of
conflict over the status of communal land.
The status of customary rights on the one hand is still
recognized throughout its existence can be proven, but on the
other side of customary rights should be subject to the national
interest that rank higher. In these vague restrictions that often
appear different interpretations extent of customary rights can
be taken into account and respected in the process of
devolution of tenure rights, particularly those involving the
interests of the state or other interest authorized by the state.
Countries can explain legal rights in terms of its control by the
existing legislation, but land rights has no clear legal validity of
the measure so far can not be proved by the fact that in writing
to be valid.
System control and ownership of land under customary
law principle different from the national agrarian law used by
the state so that in practice it can always be contested
between land tenure customary law of land tenure based on
national agrarian law or be contested between the land held by
the state lands .
Keywords: Tenure, state land, customary land

106. 106
SIGNIFICANCE OF LAW: Reality and Utility
By: Indah Sri Utari
Study of "significancy of law", in essence, trying to reveal the
reality, whether the law is to guide and direct the social life,
does in fact attract people to use it. In the perspective of the
social meaning of the law, the law is not seen merely
normative rules in the abstract, but as something "concrete".
He faces a concrete ones, at any given time, and also have a
certain background. We do not deal with the law as an idea,
but "the law as it is in human (inter-) action." Not only that, the
law also is a true human efforts to organize, regulate, and
maintain an orderly life together. In other words, the law is
(one of many) forms of human endeavor set the rules of living
together. Exactly at this point, the law actually talking about
the order of the order of the human angle. The law speaks of
"human order". Therefore, the law is actually, in a sense, is the
"anthropological document" . With this perspective, the study
of law is not only dwell on the rules, but also to be shifted to
the man as an actor, which in decisions about actions are
faced with various choices they face various legal norms. In
academia, the study of the social significance of the law can
be tested by empirical truth theorising so common in schools
of centralism, the law made the legal domicile perceived as
special and has the ability as an effective tool for social
change. Thus, the social meaning of legal offers academically
critical attitude, whether state law is so superlative on the other
norms and effectively regulate the behavior of people in fact.
Keywords: Law, Society and significance of Law

107. 107
LEGAL LITERACY AND DISPARITIES SOCIAL JUSTICE
IN INDONESIA
Arif Hidayat
Abstract
Rule of law refers to a principle of governance in
which all persons, institutions and entities, public and
private including the state itself, are accountable to law are
publicly promulgated, equally enforced and independently
adjudicated, and which are consistent with international
human rights norms and standards. It requires as well,
measures to ensure adherence to the principles of
supremacy of law, equality before the law, accountability to
the law, fairness in the application of law, separation of
powers, participation in decision making, legal certainty,
avoidance of arbitrariness and procedural and legal
transparency. This article will discuss the issue of access to
social justice for the poor and marginalized. Social justice
refers to the idea of a structure of social life based on the
principles of equality and solidarity. In the concept of social
justice contained recognition of the dignity of human beings
who have rights are rights and egalitarianism. This concept
involves a greater degree of egalitarianism in the economy,
for example, through a policy of progressive taxation,
income redistribution, or even redistribution of wealth.
Therefore, in practice, the concept of social justice is often
discussed in terms of economic justice. Such policies are
intended to create a more equal opportunity than what is in
the structure of society and to create equal outcomes can
overcome inequality system formed as a result of the
application of procedural justice.
Keywords: Legal Literacy, Social Justice, Human Rights
(HAM).

108. 108
THE LOCAL WISDOM IN ENVIRONMENTAL PROTECTION
AND ABANDONMENT PUBLIC PARTICIPATION
IN DEVELOPMENT CEMENT FACTORIES IN PATI
REGENCY, CENTRAL JAVA
By Suhadi
Law Faculty Semarang State University
Email: suhadi_fh_unnes@yahoo.co.id, Fax: (061024) 8507891
Abstract
Development plan unrealized cement factory in Sub-District
Sukolilo, Pati Regency is one of the cases phenomenal
relating to the management and environmental protection in
the region of the province of Central Java, Indonesia.
Exploration and exploitation of natural resources in the form of
chalk in the area of kars mountains Kendeng is considered to
be detrimental to the ecosystem. Local wisdom as a society
Samin is a party so as to cause unrealized opponents
development of cement factory. Society Samin having local
wisdom which rests on the paradigm ecosentris who puts a
human being as part of ecosystem. At the other side the
cancellation of the development of cement factory was also
based on the abandonment local public participation in
decision making on development plan that which concerns the
sustainability of their lives. Of civil rights samin that his life is
controlled depend on nature ( agriculture ), ignored by the
government parties who issued the permit its mining more
rested on economy calculation. Rekognisi over the public
rights Samin over its natural environment that provides a
source of livelihood is not done by the government. This
writing was meant to analyze in a critical manner against
cases the development of cement factory in Pati Regency
using approach for human rights and environment in this
context is local wisdom.
Keywords: the local wisdom, rekognisi, participation, and
society Samin.

109. 109
THE LIMITED ABILITY OF LAW AND LAW ANOMALY
(The Myth of The Equality Before The Law, Legal Melee
Syndrome and Decadence Shaming)
Duhita DS, SH,.MHum
Law limitation discourses are classical topic. They are as old
as the discussion about the relationship between legality and
morality or the relationship between law positivism and moral
force.
The discussion between legality and morality comes to the
result about two conceptional agreements. First, law has
inherent limitation if it confronts individual freedom. Second,
law limitations symbolize the minimum moral relevance in the
law. In the first conception, the law limitations mean law brings
natural limitations if it faces with individual freedom. In the
second conception, law limitations are the effect of the nature
of human restrictiveness. It represents morality as the
minimum content of law.
Law limitation is a theoretical conception that firstly
established in moral and law discourses. It started when John
Stuart Mill—utilitarianism prominent heir—taught the principle
of national non-intervention through the law in individual
privacy. The basis and principle of keeping safe the others are
the main requirements of national intervention that were
proposed by Mill.
He set out the profit principle from Bentham as the
measurement of morality. It is used to determine the good and
lack of a law regulation. He argued that the principle of harm
others is allowed as he established a fact that “whoever, both
individually or collectively, let to do the intervention of others’
freedom as far as it is for self-protection. The main reason that
allows people to intervene others’ freedom is to keep safe and
restrain the threatening to others. So, the use of power and
authority for self-protection is forbidden both physically and
morally.
Golding -utilitarian proposer after Mill- criticized Mill's
denial about law paternalistic domain. According to Golding,

110. 110
the principle of harm others cannot simply be used by anyone
for example in an individual case with mental disorders. In line
with Golding, H.L.A.Hart-the proposer of legal positivism-
beside accepted the position of laws paternalistic, He also
rejected the conception of legal moralism ala Mill. According to
Hart, a legal restriction for the individual virtue does not have
to make the moral law faced. A restriction for the individual
virtue is a form of legal paternalism, not morality laws.
Furthermore, Hart stated that legal coercion should not be
seen as state intervention on the individual privacy, but rather
as a bond to facilitate individual interests.
Complementing to Hart’s arguments, Herbert L. Packer in his
book The Limits of the Criminal Sanction (1968), argued that
the principle of harm others ala Mill was not significant when it
was related to the basics principle of punishment for an
individual who harms other individuals. Ideally, an individual
gets a punishment is not based on moral consi

111. 111
THE PROTECTION OF CONSTITUTIONAL RIGHTS OF
INDONESIAN WORKER IN ABROAD
By:
Ristiana Yudhanti
(Lecturer of Law Faculty, Semarang State University)
Abstract
The purpose and the meaning of the importance of job for
each person reflected in Indonesian law on section 27 verse
(2) stated that each Indonesian citizen reserve the right on
occupation and proper life for humanity. In fact it was not the
real condition, the limitation of job vacancy in Indonesia and
the guarantee of high salary triggered Indonesian (TKI) looking
for a job in abroad. The positive side is solving a part of
problem of jobless in domestic area. But there is a negative
side that it may a torture towards the Indonesian worker. It
affects the violation of constitutional right and human right that
viewed as non derogable right for country which received the
Indonesian worker. The risk can be experienced by the
Indonesian worker during the departure process, during work
in abroad and after come back in Indonesia with all of form of
human right violence.
The increasing of the worker interest that will get a job in
abroad and the great amount of Indonesian worker makes the
inhumanity act, the violence of constitutional right and human
right increasing too. Referring to section 27 verse (2)
Indonesia’s law 1945 “Each citizens reserve the right on
occupation and proper life for human being “, this law make an
abstract of giving guarantee and human right protection for
Indonesian worker (TKI) as constitutional right of each citizen
without any exception. It means where the country must give
protection for its citizens who will use their rights to get a
proper and humane job especially in abroad. The worker
protection is one of nature right for each worker which the rule
arranged in minister of worker RI decision number
Kep/92/MEN/98 about the protection of Indonesian worker in

112. 112
abroad. Refer to the affirmative steps from above as a
realization of admission and human right protection not only
since in the domestic country but also the human sovereignty
guaranteed and protected as derogable rights. It arranged as
international mechanism which has agreed by countries so
there are convention and international agreement.
The importance meaning of Indonesian worker or manpower
protection is the part of human rights which protected in
constitutional law Republic of Indonesia 1945 section 27
verses (2).
In the dynamic law regulation, the country takes a part actively
in the effort of creating society welfare. Especially on the
labour migrant protection and arrange the function of country
with the implantation of right and duty of human right.
Keywords : the protection of constitusional right, Indonesian
worker, protection consept

113. 113
THE PHILOSOPHY AND THE DEMOCRATIZATION OF
EDUCATION IN THE CONTEXT OF SOCIOLOGY OF LAW60
Rodiyah61
rodiyahtangwun@yahoo.com
Abstract
The philosophy is meant as an attitude of someone who was
aware and mature in thinking about everything in depth and
breadth as well as thorough with every relationship.
Philosophy of education is thought to activities everything
about education in depth and thoroughly with all the
relationships which is the effort to interpret and realize the best
potential for achieving human life. The flow of philosophy of
education, namely esensialime, perenialisme and
progressivism focuses on the end point of that education is a
leading capabilities that are still asleep in order to become
active or real, paying attention to manners and values and
should be based on the values that have stood the test of
firmness and strength of all time. Indonesia's national
philosophy of education is a system regulating the
implementation of the education which stands above the
runway and imbued by Pancasila Nations ' philosophy of life
which is spelled out in the Constitution. Then in Describe in
article 31 paragraph (1,2,3,4,5)
Education in perspective democracy have an important role
and strategic in the formation of character and temper of
nationality and fulfillment ham every one. Hence amendment
article 31 subsection 1,2,3,4,5 mereposisikan and education
budget from act sisdiknas more proportional is a constructive
60
Pierre Bourdien Theme: A Reflexive Sociology of Law and Society at the
International Symposium--30 November-December 1, 2012-Hotel
Patrajasa-Semarang. Organizers of the Faculty of Law – Semarang State
University
61
Dr. Spd., SH., MSi. Lecturer-Legal Drafting-Semarang State University
Law School

114. 114
to membetuk education system that democratic. Education are
the pillars democracy by creating new paradigm education
democracy. The education system will this thing be is to build
democracy by establishing school democratic. To education,
linieritas philosophy with real democracy education you have
to have the formation of legislative regulations education
democratic with a charge of material shows the values of
democracy in pendidikan.kondisi this system can be realized if
elaborated in context sosilogi law more reflect reality of life and
legal needs of education in Indonesia.
Keywords: Philosophy, Democratization and Education,
Sosilogi Of Law

115. 115
CHILD PROTECTION
IN THE CASE OF A CRIMINAL OFFENSE
Rasdi62
FH Unnes Gd C4 Lt. 1 Sekaran Campus
Gunung Pati, Semarang,Jawa Tengah, Indonesia
mr.rasdi@yahoo.com
Abstract
Child, as the successor to the nation, is the mandate and
blessing from the God Almighty. Further, the child protection is
required in order to grow and develop optimal physical, mental
as well as social well-being. Besides that, the protection from
violence, exploitation and abuse needs to be given. One of the
concret efforts by government of Republic Indonesia is the
enactment of the Act No. 11 of 2012 about Juvenile Criminal
Justice System. In this regulation, a child who commits crime
will be examined and judged in accordance with the nature
and characteristic of a child as minors who have not been able
to account for his or her legal actions. One of the specificities
in the juvenile justice process is when a child accused of or
charged with a criminal offense. As a result, at the level of
investigation, prosecution and examination in court, he or she
shall be examined by the juvenile investigator, prosecutor and
judge who have qualifications, duties, obligations and authority
as stipulated in the Act No. 11 of 2012.
Keywords: brat; child protection; criminal offense.
62
Lecturer of Criminal section, Faculty of Law, Semarang State University