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All Journal LAWYER: Jurnal Hukum
Rama Anda Damanik
Universitas Muhammadiyah Sorong
Law, Crime, Criminology & Criminal Justice

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PENERAPAN KUHP BARU DAN HUKUM ADAT (PERSPEKTIF MASA DEPAN) RESTORASI KEADILAN BERBASIS LIVING LAW Rama Anda Damanik; Hadi Tuasikal
LAWYER: Jurnal Hukum Vol. 4 No. 2 (2026): LAWYER: Jurnal Hukum, September 2026
Publisher : ASIAN PUBLISHER

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58738/lawyer.v4i2.1930

Abstract

This study examines the legal position of customary criminal law after the full implementation of Indonesia’s National Criminal Code in 2026, particularly the relationship between the recognition of living law, the principle of legality, and customary settlement of criminal cases. It employs normative juridical research through statutory, conceptual, and case approaches. The primary legal materials include the 1945 Constitution, Emergency Law Number 1 of 1951, Law Number 48 of 2009 on Judicial Power, Law Number 1 of 2023 on the Criminal Code, and relevant judicial decisions and legal scholarship. The study finds that customary criminal law may continue to function as a source of unwritten law, but its recognition is constitutionally limited. A customary norm must remain living, known, accepted, and obeyed by the relevant community and must comply with Pancasila, human rights, proportionality, and the rule of law. A customary settlement does not automatically extinguish state criminal jurisdiction, but it may be considered by judges in prosecution, sentencing, victim restoration, and the prevention of double punishment. Customary criminal law should therefore be understood as a controlled expansion of legal sources rather than an elimination of national codification.
Co-Authors Tuasikal, Hadi