Codification and Decodification: The State of the Civil and Commercial Codes in Indonesia

Abstract

Unlike what happened in East Asia where western codes were adopted somewhat voluntarily in order to “modernise” and replace the previous laws, in Indonesia, as in most of Southeast Asia, the codes came through colonisation. There was no need to adapt the codes to local cultures as the locals would be governed by their own law (Islamic Law and the different indigenous adat laws) and the codes would apply in principle only to Europeans and their commercial transactions. Indonesia to this day remains committed to legal pluralism and the codes are therefore only one of the many legal traditions available and applicable to different persons and situations. In fact the civil and commercial codes remain very foreign—to this day, only the Dutch version is official and no version in the Indonesian language has ever been adopted. This leads to a certain weakness in the doctrine and jurisprudence on these codes as very few academics and judges speak Dutch today. This has led to a decodification—the legislator adopts new legislations in Indonesian which take out of the codes whole fields of law such as land law and company law for example. Nonetheless in contract and commercial law, these old codes in Dutch remain the law and the author suggests a few avenues to improve the state of Indonesian civil and commercial law.