The Ambiguous Authority of Living Law Application in New Indonesian Penal Code: Between Justice and the Rule of Law
Abstract:
This study tries to determine the presence of law inside a society in Indonesian criminal policy and its theoretical conflicts. In addition, this study tries to determine the societal perception of the new Indonesian Criminal Code and its repercussions. This investigation was conducted traditionally. This study will examine the law in its written form and as concepts, ideals, values, morality, and justice, also known as ideological, philosophical, and moralistic legal conceptions. The results indicate that in Indonesian criminal policy, the law in society has been acknowledged as a source of positive law. The existence of a law that lives in a society in Indonesia's criminal policy can be seen, for instance, in Emergency Law No. 1 of 1951 regarding "Temporary Measures to Organize Unity of the Structure of Power and Procedures of Civil Courts," Law No. 14 of 1970 regarding "The Basic Provisions on Judicial Power" with several amendments, and even in the constitution, namely Article 32 of the 1950 Provisional Constitution of the Republic of Indonesia. Yet, theoretical debates regarding its existence persist. In addition, the official interpretation of Article 2 (1) of Law No. 1 of 2023 about the Criminal Code reduces the significance of laws in society so that they are only understood as customary law. Reducing this meaning can lead to injustice and undermine other social standards in contemporary Indonesian society. These may even be viewed as criminal policies that are discriminatory and anti-democratic.
Keyword:
Living Law, Customary Norms, New Criminal Code, Indonesia