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All Journal Realism: Law Review
Abdul Halim
Sekolah Tinggi Ilmu Hukum Sultan Adam
Law, Crime, Criminology & Criminal Justice

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The Legal Foundations for the Application of Living Law as the Basis for Criminal Sentencing According to Law No. 1 of 2023 Mohammad Retno Bachtiar Rachman; Susan Susan; Trisna Agus Brata; Abdul Halim; Muslimah Hayati; Sahrul Sahrul
Realism: Law Review Vol. 4 No. 2 (2026): Realism: Law Review
Publisher : Sabtida

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.71250/rlr.v4i2.156

Abstract

Living law (customary law) as the basis for sentencing under Law Number 1 of 2023 on the Criminal Code represents a paradigm shift in Indonesian criminal law. This recognition of living law creates legal dialectics because it opens space for multiple interpretations and challenges the principle of formal legality, which demands clarity and certainty. Using a normative juridical method, the study analyzes statutes and concepts to assess whether living law aligns with legality standards. The findings show that the New Criminal Code acknowledges living law in a limited manner, aiming to balance textual legal certainty with community-based justice, as reflected in Articles 1 and 2. Living law is positioned as complementary, filling legal gaps while ensuring material justice, provided it does not conflict with state principles or human rights. Article 2 allows punishment of conduct outside the Code if consistent with local norms, but requires codification into Regional Regulations under Government Regulation Number 55 of 2025. Judges may interpret living law through Articles 66 and 597. Thus, living law decolonizes progressive law yet demands strict boundaries to maintain legal clarity and certainty.
Co-Authors Mohammad Retno Bachtiar Rachman Muslimah Hayati Sahrul Sahrul Susan Susan Trisna Agus Brata