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All Journal Adagium: Jurnal Ilmiah Hukum
Budi Prastowo
Parahyangan Catholic University
Law, Crime, Criminology & Criminal Justice Social Sciences

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The Juridical Recognition and Implementation of Living Law Decisions by State Courts in Indonesia Stefhani Amanda Christy; Budi Prastowo
Adagium: Jurnal Ilmiah Hukum Vol 4 No 2 (2026): Adagium: Jurnal Ilmiah Hukum
Publisher : PT. Meja Ilmiah Publikasi

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.70308/ykqeq582

Abstract

This article looks at how living law, customary criminal law fits into Indonesias national criminal law system. The main question is how to include criminal law without hurting the principles of legality, legal certainty and constitutional protections. A normative juridical method is used, which involves analyzing laws and court decisions. The analysis includes The 1945 Constitution of the Republic of Indonesia, Emergency Law Number 1 of 1951, Law Number 48 of 2009 on Judicial Power, Law Number 1 of 2023 on the National Criminal Code, Relevant court decisions, The study finds that customary criminal law is a source of unwritten law. It is recognized when it reflects norms that're still alive accepted and obeyed by customary communities. However its use must align with Pancasila, human rights, proportionality and the rule of law. Judges play a role in deciding if customary settlements can affect prosecution, sentencing or preventing double punishment. at the end living law that comes from indigenous peoples should be seen as a controlled expansion of law sources, guided by the constitution. The integration of criminal law requires careful consideration to ensure it works with the existing legal system. This means balancing law with national laws and constitutional protections. The role of judges is crucial, in making this balance work.
Co-Authors Stefhani Amanda Christy