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All Journal Socius: Social Sciences Research Journal
Ibnu Daisaly Aziz
Faculty of Law, Universitas 17 Agustus 1945 Surabaya, Indonesia
Religion Arts Humanities Economics, Econometrics & Finance Education Languange, Linguistic, Communication & Media

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The Application of Living and Recognized Customary Law as a Material Source of Law in Criminal Judicial Practice Based on Article 2 Paragraph (1) of the 2023 Criminal Code (KUHP) Ibnu Daisaly Aziz; Abraham Ferry Rosando
Socius: Jurnal Penelitian Ilmu-Ilmu Sosial Vol 3, No 11 (2026): June 2026
Publisher : Penerbit Yayasan Daarul Huda Kruengmane

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.5281/zenodo.20891577

Abstract

The recognition of living law as a material legal source in Article 2 paragraph (1) of the 2023 Criminal Code (KUHP) marks a significant paradigm shift in Indonesia’s criminal law system. This study aims to analyze the application of living and recognized customary law in judicial practice. Using a normative legal research method with statutory, conceptual, comparative, and case approaches, the results show that the application of customary law can function positively (as a basis for punishment) and negatively (as a ground for abolition or mitigation of punishment) if it meets the cumulative criteria in Article 2 paragraph (2) and is verified through Government Regulation No. 55 of 2025. In practice, the mechanism begins from the investigation stage to execution. However, it still faces various challenges, including multiple interpretations, regional disparities, the paradox of formalization, and the potential for judicial tyranny. Therefore, strengthening through more technical regulations, capacity building for law enforcement officials, and active participation of indigenous communities is urgently needed to realize restorative justice with legal certainty.
Co-Authors Rosando, Abraham Ferry