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All Journal Lex Journal : Kajian Hukum dan Keadilan
Andik Mannulusi
Faculty of Law, Universitas Airlangga, Indonesia
Law, Crime, Criminology & Criminal Justice

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Reconstruction of the Principle of Legality in the National Criminal Code: Harmonization of Living Law and Legal Certainty in Indonesian Criminal Law Reform Fitrahtun Nahariah; Siti Adinda Nafirah; Kresna Bayu; Andik Mannulusi
Lex Journal: Kajian Hukum & Keadilan Vol 10 No 3 (2026): September
Publisher : Faculty of Law, University of Dr. Soetomo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25139/lex.v10i3.12645

Abstract

The renewal of criminal law through Law Number 1 of 2023 concerning the Criminal Code introduces a paradigm shift in the principle of legality by recognizing the living law as a basis for criminal liability. This shift reconciles substantive justice and Indonesia's legal plurality with legal certainty, which demands clear and predictable criminal norms. This research aims to analyze the reconstruction of the principle of legality within the National Criminal Code and formulate a framework to harmonize the living law with the principle of legal certainty. This study employs a normative legal method, utilizing statutory, conceptual, and case approaches. The results indicate a shift from formal legality to integrative legality, which positions formal legality as an entry point, the living law as a conditional material source, constitutional legality as a constitutional filter, objective parameters as a verification mechanism, and judicial control as a corrective mechanism. The novelty of this research lies in the concept of Living Law-Based Integrative Legality, which entails five cumulative prerequisites: the norm must be living and clear; possess defined territorial and subjective applicability; align with Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general legal principles; and be judicially tested without the application of analogy.
Co-Authors Fitrahtun Nahariah Kresna Bayu Siti Adinda Nafirah