Opinion: Legal Populism

By Bivitri Susanti for Kompas.id, May 15, 2025

How does a person with particular behaviors respond to the law? Will they comply out of fear, or because they are moral? Does a person go through a cost-benefit analysis when they face the law? Or do they act on intuition and instinct? Is it true there can be particular natural impulses when someone is confronted by the law?

Questions such as these swirl back and forward among legal experts and political thinkers, and they produce different waves of thinking about the law and about punishment.

In the mindset that doesn’t take account of the context of human mental capacities, there’s an assumption that obedience can be ‘trained’ the same way humans train dolphins or monkeys, by providing rewards or punishments for expected or unwanted behaviors. While today we criticize the use of cruelty in the training of animals, there still persists the idea that certain thinking and behaviors can be instilled through the use of fear and violence.

A “monopoly on violence” (Weber, 1919) is held by the state, because the state has the legitimacy to exercise physical coercion in the enforcement of law in the public interest.

This monopoly on violence through state law should be exercised through a criminal justice system that is accountable to the public, because its legitimacy is built in the name of the public. By this logic, there should be no other entities that impose punishment on children who are thought to be ‘misbehaving,’ for example, as seen in the case in West Java. Even for children who come into conflict with the law, we already have a juvenile justice system that is regulated by the law.

Who decides what is ‘misbehavior’? And to whom, and in what way, is the decider of what is misbehavior to be held accountable? Even if they are part of the government, if they operate outside the criminal justice system, the punishment imposed is just a private punishment. What’s more, the institution where this so-called education is imposed is neither an educational institution, nor a correctional facility.

But disciplinary methods such as these are popular with the public, threats can be imposed directly, producing the illusion of instant solutions. So two weeks in a military barracks, with the help of social media, can easily be turned into a popular “cure” for juvenile misbehavior.

Law and punishment can indeed serve as tools to boost public support. Perhaps this is because justice is difficult to attain for groups who can’t provide expensive, high-quality education for their children, and can’t access psychologists or psychiatrists. Many parents also lack the time and energy to educate their children at home because of the poverty in which they are trapped.

Populism, the political claim to represent the interests of the majority, does not only operate within the realm of politics. In a country where the law is difficult to access for the general population, the law can also become a symbol of populism.

And so legal populism is also used by law enforcement officers. Criminal cases that can capture the attention of a weary public, tired of corruption, are popularized this way, seized goods are showcased the media, or eye-wateringly large of losses described.

But in fact the dazzling losses announced in press conferences may not be successfully proved in court cases. However, often this does not matter. What is important is that the public has gained the illusion that the law actually does act against those in power. What’s more, it can also happen, that behind this illusion of the law acting against those in power, there is in fact a hidden network of new economic powers ready to advance and replace the old economic network that has been dealt with by the law.

That is the problem with the law: who, and what, is the law? Is the law a system of justice that is accountable to the public, or is it merely about maintaining the desired order and behaviors?

As long as order is the priority, it is no surprise that whoever can control the “disturbances” in society can be a street law enforcer. It is here that street criminals are born, and thrive, and become intertwined with political interests.

In fact, if justice and law enforcement are not accountable, the legitimacy of the state will also continue to ebb away. Outbreaks of civil unrest are just a matter of time. And at the same time, Indonesia becomes less attractive to foreign investors who they say they want to attract to boost economic growth.

There have been many suggestions, a road map for legal reform has even been produced by the government. There is also no lack of bureaucrats and legal thinkers who have provided criticisms and proposed solutions. But as long as the law can be used for political interests to legitimize the immoral, and to impose discipline on the community, this chaos will continue. Those who still have some rationality, and who want to lead Indonesia out of darkness, will need to stay strong and light more candles to drive out the darkness.

This article is based on https://www.kompas.id/artikel/populisme-hukum. Bivitri Susanti is the Deputy Chair and a lecturer at the Indonesia Jentera School of Law and a board member in a number of Indonesian Non-Governmental Organizations (NGOs) https://law.unimelb.edu.au/constitutional-transformations/Melbourne-Forum/mf-community/profiles/bivitri-susanti.

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