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All Journal JURNAL PEMBANGUNAN HUKUM INDONESIA Indonesian Journal of Criminal Law Studies
Yoghi Arief Susanto
Faculty of Law, Universitas Diponegoro
Law, Crime, Criminology & Criminal Justice

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Reformulation of Customary Criminal Law in the National Criminal Code Based on the Formation of Legislation Muhammad Junaidi; Yoghi Arief Susanto
Jurnal Pembangunan Hukum Indonesia Vol 7, No 1 (2025)
Publisher : PROGRAM STUDI MAGISTER HUKUM FAKULTAS HUKUM UNIVERSITAS DIPONEGORO

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/jphi.v7i1.43-60

Abstract

Customary criminal law, as a living law in society, holds a recognized position as an unwritten source of law. However, Article 2, Paragraph (3) of Law No. 1 of 2023 concerning the Criminal Code (KUHP) stipulates that customary law must be established through government regulations. This requirement poses a challenge and introduces new complexities in the reform of the National Criminal Code.This study aims to reconceptualize customary criminal law within the National Criminal Code based on the framework of statutory formation. The research adopts a doctrinal approach with a normative juridical method, utilizing legal sources such as legislation, jurisprudence, court decisions, and academic literature through a literature review. The analysis is conducted qualitatively.The findings reveal that customary criminal law already holds an equivalent position to statutory law and jurisprudence as an unwritten source of law. Therefore, formalizing customary law in the form of regional regulations is misguided. The application and procedural aspects of customary law should remain under the authority of indigenous communities. Meanwhile, the imposition of additional sanctions by judges should be regulated in the revised Criminal Procedure Code while respecting customary community norms.In conclusion, customary criminal law holds an equal position as an unwritten legal source and should remain recognized without requiring formalization through regional regulations. The state's role should be limited to providing protection and acknowledgment rather than enforcing formalization.
Recognition or Restriction: Dialectics of Customary Criminal Law in the Paradigm of Indigenous Communities Yoghi Arief Susanto; Mohammad Azzayyan Haykal Aditya; Ali Masyhar Mursyid; Edy Sujendro
IJCLS (Indonesian Journal of Criminal Law Studies) Vol. 11 No. 1 (2026): Indonesia J. Crim. L. Studies (May, 2026)
Publisher : Universitas Negeri Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/ijcls.v11i1.41537

Abstract

The recognition of customary law in the New Criminal Code is like a double-edged sword: on one hand, it acknowledges customary law, but on the other, it imposes limitations cloaked in formalism. This study aims to identify customary criminal offenses that are still practiced in indigenous communities and to analyze the perspectives of indigenous communities regarding customary law as the basis for criminal punishment, unlike previous studies that were still conceptual in nature and lacked empirical support. Thus, this study presents an empirical perspective from indigenous communities regarding the recognition of customary criminal law in the New Criminal Code. The approach in this study is socio-legal, employing qualitative and interpretive analysis. The research was conducted using a purposive sampling method in Sembalun Village and Bangket Parak Village through in-depth interviews with traditional leaders and a literature review. This study concludes that the formalization of customary criminal law through local regulations has the potential to weaken its dynamic nature, given that, empirically, customary criminal law in Sembalun Village and Bangket Parak Village continues to evolve in response to the needs, values, and norms of the local community. Traditional leaders have responded positively to the recognition in the New Criminal Code, noting that customary law still holds greater binding power than state law. Therefore, the regulation of customary criminal law should be sufficiently affirmed in the general provisions of the Criminal Code as a guideline for judges in uncovering the living law within the community, without the need for further formalization through local regulations, to maintain a balance between state law and legal pluralism within Indonesian society.
Co-Authors Ali Masyhar Mursyid Edy Sujendro Mohammad Azzayyan Haykal Aditya Muhammad Junaidi