INSTALACIÓN DE PROTECCIÓN CONTRA INCENDIOS

Before progressing with the actual analysis I need to define some more con- cepts used in this book, to start with ‘nature conservation’. Nature conservation is a term with a history, which – in some contexts more than in others – is associated with a whole social movement and that propagates a particular ideology (see part II). In this book I intend my references to ‘nature conserva- tion policy’ or ‘conservation policy’ to be more neutral since they are the common terms in this field.

This book aims to make the discussion about nature conservation policy, law and practice more transparent. It describes ideas behind policies and laws regulating how citizens should treat nature. As part II will show, actors have defined ‘nature’ and the effects of various forms of its treatment by humans, differently.

In this context, speaking of ‘the state’, ‘the people’, etc. is problematic. Various scholars have called for more attention to be paid to this, for instance, the case of ‘indigenous people’.1 _{This study has taken this criticism into}

account byzooming inon ‘the legislature’, ‘the state’, and ‘the people’ in the various case studies. As a result it has found that officials working for the same agency subscribed to different discourses, some of them striving for pro- fessionalism and effective conservation while others being preoccupied with realising their personal objectives.

‘Policy’, in this study, refers to an oral or written statement made by and as a public authority about how to achieve a particular goal. This includes written documents, speeches, laws and other regulations.

The fact that I treat laws as a kind of policy is mainly inspired by the Indonesian case where the distinction between policies and laws has been blurred. Under the New Order, the Broad Guidelines of State Policy (In.Garis- Garis Besar Haluan Negara, abbr.GBHN), for instance, were situated in the legal

hierarchy below the constitution but above legal acts.2_{Likewise, presidential}

speeches were more often referred to in the policy- and lawmaking processes than any legal act.3_{Many Indonesian legal acts, on the other hand, continue}

to show the characteristics of a policy: they are statements of goals rather than detailed descriptions of rights and obligations. Policies often end up on a pile

1 See, among others, Eindhoven 2007 and Osseweijer 2001.

2 Ex MPRS Decree XX of 1966.

30 Nature conservation: actors, policy, law and processes

of documents. To make them authoritative they are transformed into legis- lation. Likewise, existing acts are ‘reinforced’ by issuing an implementing government regulation, a presidential or ministerial decree or a circulaire.

Defining law as a kind of policy, or policy instrument, is of course not to say that law is a synonym for policy. Treating them as almost equal is to deny the fundamental differences between the two. It is true that laws and policies are about goals and how to achieve them. But once a law has been enacted it has become more than just a policy. It has become a legally binding docu- ment which ideally attributes rights and obligations to actors and which must be complied with, enforced by the state and controlled by courts. As a con- sequence its influence reaches much further than that of other policies since any policies that follow – in theory – have to be based on the existing law. What makes laws different from policies is, most importantly, that they form part of a system that at its core serves to regulate the behaviour of non- state and state actors. In the latter case they are intended not only to strive for policy goals but also to ‘curb arbitrary and unjust use of state power’:4

they form part of the rule of law.

Entering the domain of the rule of law has consequences for what one may expect in terms of quality from such a special kind of policy. A discussion of the quality of lawmaking and legislation is relevant for the present case as Indonesia, claiming to be arechtsstaat (In. negara hukum), has officially subscribed to the rule of law. Four groups that participate in legal discourse – legal theorists, socio-legal scholars, practitioners and scholars studying governmental policies on legislative quality – have argued for legislative quality and the necessity to define criteria for it.5 _{The criteria proposed by}

these different groups vary. Legal theorists have primarily focused on legality, such as Fuller who has stressed that laws should be general, clear, consistent, accessible and never retroactive.6_{Socio-legal scholars, on the other hand, have}

stressed that laws must be designed in such a way that they can effectively influence human behaviour7 _{and that rules should not only be clear and}

accessible but also realistic in a way that reduces the gap between the norms and reality to create the preconditions for ‘realistic legal certainty’.8 _Prac-

4 Bedner 2004, p. 1.

5 Van Rooij 2006, p. 33. Van Rooij provides a useful overview of the literature on legislative

quality and discusses its relevance for enforcement and compliance. He argues that ade- quacy, feasibility, certainty and adaptability form the four major criteria for implementable legislation (Van Rooij 2006, p. 34-43). All authors cited here are also cited in Van Rooij 2006.

6 Fuller 1976, p. 41-43.

7 Seidmann 1978, Seidmann & Seidmann 1994, Seidmann et al. 1999, Seidmann et al. 2001,

and Seidmann & Seidmann 2003.

8 Otto 2004, and Otto et al. 2004. As the other preconditions for realistic legal certainty Otto

mentions that ‘the administration follows these rules and induces citizens to do the same’, that ‘the majority of people accept these rules, in principle, as just’, that ‘serious conflicts are regularly brought before independent and impartial judges who decide cases in accord- ance with those rules’ and that ‘these decisions are actually complied with’ (Otto et al. 2004,

Chapter 4 31

titioners in the Netherlands and the European Community, for instance, have developed policies on the quality criteria legislation should meet.9_Veerman,

as a result of his study of such policies, has argued, however, there is no absolute quality standard for legislation. Whether or not the various producers and users of a law regard it as of good or poor quality depends on their respective expectations.10_{Eijlander and Voermans have listed a number of}

basic expectations11_{reflecting the rule of law discourse. These include that}

citizens expect an act to create clarity about rights and obligations, that govern- ments expect an act to formulate the rules on the basis of which they can rightfully and authoritatively govern and that judges expect an act to enable them to decide disputes. These expectations in their turn can tell us much about how actors conceive of law and therechtsstaat. Whatshould a law, in their opinion, do? Should it merely create the preconditions to achieve a certain objective? Do they, for instance, conceive of it merely as a policy instrument? Or do they, to mention another example, conceive of law as a precondition for liberty and justice, meaning that law should ‘constrain Leviathan’.12_And

what do they expect lawcando? Do they expect that law can effectively alter behaviour or do they have more symbolic functions in mind, including claim- ing authority, making a gesture, and rationalizing existing inequalities?13

p. 123). In Indonesia, Satjipto Rahardjo is an important advocate for ‘hukum progresif’, a

more realistic approach towards law. See, for instance, Rahardjo 2007.

9 See, for instance, Bracke 1996, Veerman 2004, and Voermans, et al. 2000.

10 Veerman 2004, p. 13. This conclusion is similar to Tamanaha’s ‘non-essentialism’ which argues that one cannot define concepts such as law, or - by analogy - legislative quality, in terms of its essence and therefore, one needs to analyse how various actors define it (Tamanaha 2000). Nevertheless, Veerman cites a number of legal, administrative and technical quality criteria of the Dutch policy on good legislation, including legality, effective- ness and efficiency, implementability and enforceability, simplicity, clarity and accessibility (Veerman 2004, p. 16). Recent research on the advice practices of the Dutch Raad van State revealed that compliability is another such criteria (Broeksteeg, et al. 2005, p. 531). The existence of these criteria has urged ministries to develop a number of protocols, tests and ‘quickscans’ (Veerman 2004, p. 33). However, these do not weigh up against the fact that the criteria are vague and sometimes conflicting, depend very much on forecasts and hide the diverging interests and rationalities of producers and users (Veerman 2004, p. 35). Another problem is that although lawmaking is a political act the control of legislative quality in the Netherlands is not so much seen as a political duty but left to the ministers (Florijn 2008, p. 3).

11 Eijlander & Voermans 2000, p. 17-18.

12 Radin 1992, p. 130. Hobbes used the name of this biblical monster for the absolute ruler he proposed to submit to in order to prevent chaos and anarchy. In this kind of thinking, law is thus conceived of as a system that should define limits to absolute power. 13 Edelman 1977 and Edelman 1987. Similarly, Cohn points at the possibility that ‘legislation

may be a political show of power in response to crises or issues that attract strong pro- legislation forces’ (Cohn 2001, p. 480). Veerman differentiates between an instrumentalist, astounding, problem displacing, symbolic and value expressing and consolidating function of a law (Veerman 2004, p. 19-20). See also Schuyt who argues that since legislation fulfils many more roles than just an instrumental one and that the effectiveness approach is by definition of a limited value (Schuyt 1983, p. 178).

32 Nature conservation: actors, policy, law and processes

Mattei’s differentiation between countries with a predominant rule of professional, political, and traditional law14_{may help to categorise the expecta-}

tions different actors in Indonesia have of therechtsstaat, law and policy. There is no country exclusively ruled by one of these patterns. In countries with a predominant rule of professional law legal procedure is binding on the govern- ment, and lawyers enjoy a high status. Aspects of political and traditional patterns of law are considered a ‘pathology’ and rejected. A predominant rule of political law is, among others things, characterised by decision-making that is determined by a final goal such as development, a weak judiciary and a strong police, and continuous legal reform with many transplants. In addition, as many state decisions depend on who one is rather than on formal rules, many people invest in building relations with powerful actors rather than exclusively seeking justice in court. Countries with a predominant rule of traditional law, finally, are described as possessing a structure of religious or customary law parallel to a techno legal structure. This means a reduced role for lawyers, as many other actors, such as wise men, are also entrusted with dispute resolution and decision-making. Furthermore, hierarchy and harmony are highly valued and sometimes legitimisation is sought in the super-natural.

That the expectations of various actors can and normally do differ is, of course, not to say that legal, technical or policy-related quality criteria are of no use at all.15_{It is good for any state to think about such criteria and to}

develop and implement a policy on law and lawmaking since such criteria can help to rationalise lawmaking and to improve its outcome or at least to explicate implicit standards.

The special characteristics of law mean not only that law differs from policy but also that lawmaking differs from other policymaking processes. It is the chosen members of parliament that deliberate about the goals and instruments to be included in an act. They represent the various interests in society and are entitled to weigh these interests and look for compromises. Due to the fact that an act has much more severe consequences for citizens and the state than a non-legal policy citizens may expect even more scrutiny, precision, and transparency from those involved in lawmaking than from those involved in other policymaking processes.

To ensure this scrutiny, precision and transparency lawmaking should meet the conditions of what I will call the ‘good lawmaking standard’ (henceforth:

GLS). This standard builds on two of the few existing normative theories on lawmaking that are based on empirical research. The first one is the problem-

14 Mattei 1997. The following section is based on this article. 15 Veerman 2004, p. 23.

Chapter 4 33

solving methodology developed by Seidman and Seidman.16_{These researchers}

have focused their attention first on the legal drafters and then on legislators. In their view, drafters and legislators need to adopt a methodology that is ‘based on reason’ and ‘informed by experience’. This means that drafters should accompany their draft with a research report to justify why they chose a certain approach and solution. Such a report should identify the difficulty at hand with a special focus on the causal actors and their behaviour, and offer a strategy to change their behaviour.17

Where the Seidman theory aims for legal effectiveness the second building block of theGLSproblematises this very concept. Research by Aubert, later followed by Aalders,18_{has differentiated three types of effectiveness: political,}

substantive and formal. Legislation can be politically and formally effective without satisfying the demand of being substantively effective, meaning that legislation succeeds to achieve the intended objectives. Combining these two theories, my good lawmaking standard prescribes that lawmaking should be based on reason, informed by experience, and aim for substantive effectiveness. To understand what conservation policy, law and action in Indonesia are about and how actors have been trying to maintain or change it, the object of this study is threefold: policies and law, policy- and lawmaking, and imple- mentation. Consciously, the discussion in these three parts of the study has included both policy and governance discourses. Those related to policy, debate, for example, who causes nature destruction and who can and should prevent it, and include practices ranging from rangers patrolling an area to settlers constructing houses in a national park. By contrast, the governance discourses argue about who should participate in policy- and lawmaking and

16 Seidmann & Seidmann 1994, Seidmann et al. 2001, and Seidmann et al. 1999. The other theories on lawmaking, and those on policymaking that are applied to the lawmaking process, aim to analyse and explain the process and its outcome. Luhmann, for instance, has argued that it is not so much the result of a process but the process itself that determines whether or not actors accept the result of a process (Luhmann 1969). Applied to lawmaking this would mean that as long as there were acceptable rules on lawmaking and legislators kept to these they could make whatever law without having to fear non-acceptance by the broader public. Lindblom with his theory of ‘muddling through’ (Lindblom & Woodhouse 1993) and Kingdon with his application of the garbage can theory to policymaking (Kingdon 1984) have attempted to explain outcomes by pointing either at the role that existing policies and negotiation play or at the possibility that solutions often look for problems. Snellen has argued that there is not one rationality that determines a process of policymaking but four, i.e. a political, economic, legal, and scientific rationality (Snellen 1987). For an overview of theories on policymaking and lawmaking and their applicability for law and development projects see Otto et al. 2004. For a discussion of such theories of lawmaking and their relevance for the Chinese context see Van Rooij 2006.

17 Veerman has supported it by arguing that ‘most problems with legislation stem from a lack of knowledge and good ‘policy theories’ (Veerman 2004, p. 31) which are defined as the arguments and underlying knowledge for defining a problem and a solution (Van der Graaf & Hoppe 1996, p. 70). For an more elaborate overview of existing legislative theories and the argument to combine them see Otto et al. 2004.

34 Nature conservation: actors, policy, law and processes

implementation and how state officials should perform their tasks. Combining the study of both policy and governance discourses led to the discovery of patterns across two fields of study and linked the policy debate to the one on governance and the rule of law.

5

Main research questions, methodology and