I. COMPARATIVE LAW IN INDONESIA

II. LEARNING OUTCOMES OF THE COMPARATIVE LAW COURSE

What should a student learn from a comparative law course? Why should comparative law be taught in a university at all? René David and John Brierley argue that ‘comparative law is useful in gaining a good understanding of one's own national law and in the work of improving it’.Footnote ¹⁴ Lawmakers (legislators) use comparative law in crafting legislation and improving their implementation; hence, the introduction of the term ‘comparative legislation’ (législation comparée). In addition, comparative law is useful for gaining a better understanding of foreign societies – a valuable discipline in the context of international relations.Footnote ¹⁵ There are many other advantages and uses of comparative law, although according to David and Brierley, its primary role is in legal studies.Footnote ¹⁶

More practically speaking, within one's own country, as David and Brierley put it, comparative law ‘broadens the perspective of those seeking ways of bringing about their improvement by inviting them to consider new ideas’.Footnote ¹⁷ This view is shared by Peter de Cruz, who stressed the comprehensive functions and objectives of comparative law as an academic discipline, an aid to legislation and law reform, a means of understanding legal rules, and a contributor to the systematic unification and harmonization of law.Footnote ¹⁸ Although David, Brierley, and de Cruz agree that the primary function and goal of comparative law remains within legal education and academia,Footnote ¹⁹ David and Brierley went further to say that comparative law ‘can enlighten the understanding of the place and significance of law by drawing upon the experience of all nations’.Footnote ²⁰ After all, in academia, many professors and thesis examiners take the position that a doctoral thesis should include a comparative analysis of equivalent legal rules and regimes in foreign jurisdictions.Footnote ²¹ Konrad Zweigert and Hein Kötz in their seminal work, An Introduction to Comparative Law, similarly posited that ‘the primary aim of comparative law, as of all sciences, is knowledge’,Footnote ²² and that ‘comparative law can provide a much richer range of model solutions than a legal science devoted to a single nation, simply because the different systems of the world can offer a greater variety of solutions’.Footnote ²³ Thus, by conducting comparative legal research, one can discover new perspectives and solutions to any given legal problem.

It is clear that the main purpose of a comparative law course is to deepen students’ knowledge of their own national laws rather than the laws of other countries. In writing their theses or dissertations, students are expected to include a comparative component so as to gain more effective problem-solving approaches. Students are also expected to use comparative law in their professional careers. For example, graduates who work for the legislative or executive branches of government will draw on comparative law when drafting legislation or policy papers. Therefore, a graduate working to solve a particular legal problem can employ the type of comparative study proposed by Walther Hug that ‘analyze[s] objectively and systematically solutions which various systems offer for a given legal problem’.Footnote ²⁴

The expected use of comparative law in government and legal practice also explains why it is taught in postgraduate law programmes. Students in a Master's Programme in Law comprise both fresh graduates who pursue postgraduate studies immediately after completing their Bachelor's degrees in law, as well as working professionals from the government, non-governmental organizations, the criminal justice system (eg police officers, prosecutors, and judges), private legal practice, and research institutions. For the latter group of students, the course's learning outcomes must have direct relevance to their professional duties. As mentioned above, I take the position that the learning outcomes should not just be about gaining knowledge on the similarities and differences between particular aspects of selected legal systems. The acquisition of knowledge is important; however, what is even more important is to equip students with the ability to conduct comparative legal research so that they do not only improve the quality of their academic work, but also use the skills they acquire professionally.

As mentioned before, comparative law in UI is taught via specialized subjects such as comparative civil law, comparative constitutional law, comparative land law, and comparative criminal law. This article focuses solely on the comparative criminal law course that I teach for the Master's Programme in Law, in which comparative law is taught together with legal history in a course titled ‘History and Comparative Criminal Law’. Initially taught as two separate courses (Criminal Legal History and Comparative Criminal Law), they were combined into a single course during a curriculum revision in 2009 due to content overlaps and the close connection between the two courses.

Nevertheless, the course is divided into two parts, with the first part covering the history of criminal law and the second part focusing on comparative criminal law. The goals of this arrangement are to ensure that students understand the history and comparative aspects of criminal law, and to equip them with the skills to apply historical and comparative approaches in researching and writing on criminal law. These skills are especially important for their Master's theses as well as for further work in a doctoral programme. My experience is that students are generally able to achieve the outcomes above at the end of the course, and they will have applied comparative approaches to thematic issues such as money laundering, corruption, economic crimes, and environmental crimes. These learning outcomes are also well-accepted among the students.

III. THE CONTENTS OF THE COMPARATIVE CRIMINAL LAW COURSE

With the learning outcomes set, the next question concerns course contents: what should be taught? Generally, comparative criminal law courses analyze the differences and similarities between the penal regimes in various legal systems, assess each system in turn, and derive general principles from the comparisons made. Our course in UI begins by introducing cover topics such as the definition of comparative law and its relationship with other disciplines, legal families (continental law, common law, etc), and the judiciary, as well as comparative perspectives on selected topics. In the later stages of the course, students are expected to apply comparative approaches to their own research, and to write a paper on a topic in criminal law. The scope of criminal law for the purposes of this course includes criminal procedure and the criminal justice system.

Introducing students to the definition and the framework of comparative law helps avoid basic misunderstandings about the nature of comparative law. Common misconceptions students have include how the comparison of regulations in different localities (peraturan daerah) and the comparison of a certain statute (undang-undang) in force in a particular jurisdiction at different time periods are both part of comparative law. Such misconceptions can be addressed in one or two sessions. To equip students with the skills to research and write using a comparative law approach, they are familiarized with the history and development of comparative law, the definition and scope of comparative law, and whether comparative law is a field of law in its own right (on par with civil law, criminal law, constitutional law, etc) or merely a method – the last of which has been addressed by writers such as David and Brierley,Footnote ²⁵ de Cruz,Footnote ²⁶ and Zweigert and Kötz.Footnote ²⁷ In particular, de Cruz's claim that the function of comparative law, as an academic discipline, is to be ‘an aid to legislation and the law reform, a tool of construction, a means of understanding legal rules and a contribution to the systematic unification and harmonization of law’Footnote ²⁸ is examined in the course.

Each of the functions and objectives raised by de Cruz is discussed in greater detail and linked to their respective contexts. For example, what is meant by ‘comparative law’ as an academic discipline? Is it related to knowledge of the similarities and differences between two or more legal systems? Next, the link is made between the purpose and function of comparative law as an aid to legislation and law reform, and the importance of comparative law in the preparation and discussion of a draft law in the Indonesian House of Representatives (Dewan Perwakilan Rakyat). Indonesia is but one country that has benefited from the use of comparative law as an aid to legislation and law reform. For instance, the new draft penal code contains many new rules which are the product of comparative law research conducted by its drafters, who include Barda Nawawi Arief and Andi Hamzah. Other examples of criminal legislation that have drawn on comparative law work include the Law No. 8 Year 2010 on Prevention and Eradication of Money Laundering and the Law No. 5 Year 2018 on Eradication of Terrorism Offences. Further examples abound in other areas such as Law No. 7 Year 1992 on Banking (as amended by Law No. 10 Year 1998), Law No. 32 Year 2009 on The Protection and Management of Environment, Law No. 28 Year 2007 on General Provision and Tax Procedures, and Law No. 7 Year 2017 on General Elections. Students are invited to analyze case samples of draft legislation and discuss comparative law's influence on them.

Key concepts in comparative law are also covered during the first few sessions of the course. Students are introduced to concepts such as ‘legal families’ and ‘legal traditions’, which are defined as a set of ‘deeply rooted historically conditioned attitudes about the nature of law, the role of law in the society and the political ideology, the organisation and operation of a legal system’.Footnote ²⁹ According to John H Merryman, a legal tradition is different from a legal system,Footnote ³⁰ and students discuss, with examples, the differences between these concepts. The classification of existing legal traditions into categories of ‘common law’, ‘civil law’, and ‘Islamic law’ is also discussed. The criteria used in classification include race and language,Footnote ³¹ culture,Footnote ³² substance or substantive content of laws,Footnote ³³ ideology, philosophy, conceptions of justice and legal technique,Footnote ³⁴ historical origins,Footnote ³⁵ and juristic style.Footnote ³⁶ Of these modes of classification, I highlight to my students that Zweigert and Kötz's approach is the most comprehensive, taking into account the historical background and development of the system, its characteristic (typical) mode of thought, its distinctive institutions, the legal sources it recognizes and how these are treated, and the system's ideology.Footnote ³⁷

Before class discussions, students are invited to look at the world map and the legal families that countries adopt, and are asked to consider each legal family's characteristics and mode of thinking. For example, the civil law is expressed in theoretical, conceptual, and symmetrical terms. It is rule-based and constantly seeks solutions to a problem before the court. It also thinks in terms of institutions, whereas the English common law is known for its concrete, court-based approach, seeking realistic answers to issues before the court.Footnote ³⁸ To link back to the criminal law aspect of my course, I would then discuss the application of the abstract mode of thinking in the civil law tradition in the definition of legal concepts such as ‘criminal intent’ according to legal experts.Footnote ³⁹

After covering these concepts, the course moves on to explore the sources of law for each legal family. This is especially important in comparing different jurisdictions, because each legal family organizes and uses its legal sources (such as legislation, court decisions, etc) differently. Students are expected to appreciate how the meaning and understanding of what is a ‘source of law’ varies from country to country, and occasionally, within a country itself. After all, as Wu Min Aun posits, historical sources, places where the law can be found, and legal sources in the narrow sense, can all be accepted as sources of law.Footnote ⁴⁰ Students discuss each source's definition and relative weight, and how countries with different legal families recognize and use them. For example, class discussions may focus on whether common law countries also recognize codified laws or regulations like civil law countries; how civil law and common law countries treat statutes; the stare decisis principle's history and development and how it is implemented in common law countries; and whether a similar principle operates in civil law countries.

IV. COMPARATIVE CRIMINAL LAW TEACHING METHODS

We now come to the most important part of this article: how the course is delivered to achieve the learning outcomes as defined above, ie for the students to understand comparative criminal law and gain the ability to research and write using a comparative approach. I teach the course using several methods: lectures, group discussions, group presentations, individual research papers, and individual presentations and reflections. In Indonesia, most comparative law lecturers are Indonesian, although foreign lecturers are sometimes invited to teach particular sessions. Most of these lecturers earned their Master's and doctoral degrees overseas, with some of them specializing in comparative law.

To teach students research and writing skills for comparative law, I provide individual supervision and require students to give individual presentations based on their research paper for the course. To help students achieve proficiency in the comparative method, I provide course materials and guide student discussions. Students are introduced to two types of comparative methods: macro- and micro-comparison. Macro-comparison is the study of the entirety of two or more legal systems, whereas micro-comparison is defined as the study of certain topics or aspects of two or more legal systems, including: (1) institutions or concepts peculiar to a system; (2) sources of law, the judicial system, the legal profession, and the structure of the legal system; (3) various branches of national or sub-national law; (4) the historical development of legal systems; and (5) the ideological, socio-legal, and economic bases of a particular system.Footnote ⁴¹ Students are offered a choice as to the comparative method they wish to apply, but as the course is limited to just fourteen sessions over one semester, I generally suggest the use of micro-comparison in which my students may conduct comparative law research focusing on only some aspects of criminal law.

To assess the progress of each student through the course, I adopt de Cruz's framework, as follows. First, students identify the problem and state it as precisely as possible. Second, assuming that the ‘home jurisdiction’ is one of the jurisdictions being compared, students identify the foreign jurisdiction and if possible, the legal family it belongs to. Third, students decide which primary sources they should examine. Fourth, students gather and assemble the materials relevant to the jurisdictions being examined. Fifth, students organize the materials they have gathered by making lists of the main sources of law, the hierarchy of sources, and the socio-cultural materials. Sixth, students map out possible answers to the problem, comparing different approaches, noting possible differences in culture, legal interpretation, socio-economic factors, and any non-legal factors. Seventh, they analyze the legal principles critically, and finally, students set out their conclusions in a balanced manner.Footnote ⁴² Students are expected to go through all these steps sequentially, discussing and providing examples along the way.

In this comparative criminal law course that I teach, students have, in the last two years, worked on a range of issues, such as confiscation of corrupt gains, domestic violence, electoral offences, predicate crimes in money laundering cases, and the reversed burden of proof in corruption cases. Students are given the freedom to decide their country case studies (other than Indonesia), but are required to provide reasons for their choices. Nevertheless, regardless of their choices, I typically recommend that students limit the number of countries compared with to between two and four due to time constraints. Another consideration that students are reminded of is the availability of resources relevant to their research topic such as laws and regulations, cases, books, and journal articles, among others. A portal acting as a repository of legislation, cases, and news of legal developments from the Association of Southeast Asian Nations (ASEAN) countriesFootnote ⁴³ was recently launched, enhancing students’ access to information on these countries. However, given that some countries’ resources are available only in English and most Indonesian students are not proficient in it, the language barrier presents an obstacle to the students’ research efforts.

Students are also expected to follow the steps in de Cruz's framework in producing their papers. I emphasize to students that their papers should not only describe aspects of the countries being examined, but should also include an in-depth comparative analysis exploring the similarities and differences of these aspects. The structure of these papers generally consists of a preface or introduction, a general overview of the issues discussed, comparative analysis, and a conclusion. In the preface or introduction, students should justify why they selected the problem they intend to analyze, why it is important to discuss the problem, and thereafter set out their research question. For example, if a student conducted research on money laundering, they should explain the concept in the preface or introduction, state why the issue is an important comparative law topic to be discussed, and then formulate the research question accordingly.

Subsequently, in the general overview section, students are instructed to describe the topic in general terms, provide a literature review, and lay the foundations for the comparative analysis that follows in the next section. For example, a student writing on the restorative justice law for bullying cases in Indonesia and Malaysia must discuss the concepts of ‘restorative justice’ and ‘bullying’ by referring to sources that are widely used in several countries. Students must then explain ‘restorative justice’ and ‘bullying’ as they are understood by experts in the field. This is done by exploring theories in the field and the definitions and jargon commonly used in the literature. Definitions and jargon are crucial as they form the basis for comparing restorative justice and bullying in Indonesia and Malaysia in subsequent sections of the paper. Students are then expected to describe how the problem is conceptualized and regulated in each of the countries being compared. They are required to be objective and balanced in their descriptions, and must avoid giving priority to the discussion of one country over the others. Corresponding aspects of each country should also be addressed. For example, a student writing a paper comparing electoral offences in Indonesia and Singapore should objectively outline how each country classifies these offences and the penalties imposed and enforced in reference to each country's constitution (if there are relevant provisions therein), laws, subsidiary legislation, regulations governing electoral management bodies, court cases, and decisions on electoral offences, relevant doctrines, as well as scholarly literature in books and journals.

The next and most important part of the paper is the detailed comparative legal analysis without which one cannot claim to have conducted a comparative study. As a cautionary tale, I constantly remind my students to avoid producing papers similar to many undergraduate and graduate theses and dissertations as well as journal articles, in which authors claim to have used comparative methods but in reality contain no comparison whatsoever, primarily because they only contain descriptions without any analysis of comparisons made. Students are therefore not only expected to describe the specific aspect of the legal systems of their country case studies, but are required to critically analyze them from the perspective of comparative law. Suppose a student is comparing the crime of money laundering in Indonesia and Australia that includes issues such as predicate crimes, whether criminal prosecution of money laundering should be preceded by clear evidence of the predicate crime, as well as which agencies are authorized to conduct money laundering investigations. After the said student writes the introduction providing an overview of money laundering and predicate crimes, and describes the aspects that will be compared, the student should move on to compare these aspects in the analysis section, pointing out their similarities and differences. In this case, the student is expected to explain how the number and types of predicate crimes in Indonesia are different from those in Australia. For instance, some predicate crimes in Indonesia are not classified as predicate crimes in Australia. Where possible, students should make more in-depth findings on issues such as why such differences exist.

After the detailed discussion and comparative analysis comes the conclusion of the paper. Here, students are expected to answer the research question they set out in the introduction using the findings from the comparative study they conducted and the analyses that followed. In writing the conclusion, students are expected to focus only on their analysis and discussion, maintain objectivity, and present suggestions or recommendations where appropriate. For example, after a student's comparative analysis, he or she may find that there are important lessons that can be learnt for improving legislation in Indonesia in the form of suggestions or recommendations.

In class, I stress the importance of interactive engagement between instructors and students, student-centred learning methods, and active learning. I implement these by using teaching methods aimed at encouraging students to be bolder in voicing their opinions and making arguments as well as to be more independent in their work, with the instructor acting more as a facilitator. After the students have conducted independent research and written their papers, they are asked to briefly present their papers and findings in class. This allows students to learn from each other, especially since different topics and countries are compared and discussed. It is also common for the students to discover points in their own papers that need to be corrected or improved. After all the presentations are delivered, the students may revise their papers and submit a final, improved version of it.

The final part of this learning process is a ‘reflection’ session I conduct in class to determine the extent to which students have internalized the learning process and provide feedback. We talk about what students felt and experienced during the course, what needs to be improved for future iterations of the course, and parts of the course that they believe are beneficial to future writing assignments and learning generally. I also ask them about their perception of the teaching methods I adopted, how well they understood the content of the course, and how far they can apply the comparative law method in their papers and Master's thesis. Based on these reflection sessions, I conclude that, overall, the expected learning outcomes of the course are generally achieved. By the end of the course, students do demonstrate that they have grasped the foundations of comparative law. They demonstrate an understanding of and the ability to explain the history and development of comparative law, and the key concepts in comparative law. Most importantly, they also demonstrate the ability to apply the comparative method in their papers and Master's theses.

However, more work can be done to help students improve the quality of their analyses, especially because students often adopt an overly descriptive tone in their papers. To achieve this, I would call on my students to be more critical and to make their analyses deeper and more interesting. Another concern is how language barriers impact students’ research. Language barriers faced by most Indonesian students can be attributed to either the requirement of only basic proficiency in the English language for university admission, or the inefficacy of English language lessons taught at the high school level. Students may also not have been sufficiently exposed to English language resources in the course of their undergraduate studies. This can be addressed by assigning more class readings in English and discussing them with the students during lessons.

But perhaps the biggest challenge, in my opinion, remains the general tendency of students to rely exclusively on secondary materials such as books and journals that already include the authors’ own comparative analyses, and these analyses may simply be reproduced by the students in their own research papers. The students need to be encouraged to independently conduct the process of comparison using primary materials such as statutes, subsidiary legislation, cases, and other relevant legal materials from the jurisdictions they are writing on. In recent years, comparative research utilizing sources from other jurisdictions has become easier because many countries have made their legal materials public and freely accessible. Students should seize the opportunity to make the most of these materials.