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All Journal Pena Justisia: Media Komunikasi dan Kajian Hukum Aliansi: Jurnal Hukum, Pendidikan dan Sosial Humaniora
Albri Labaka
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Humanities Education Law, Crime, Criminology & Criminal Justice Social Sciences

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The Essence of the Principles of Legality and Law Living in a Post-Criminal Law Reform Society Albri Labaka
Aliansi: Jurnal Hukum, Pendidikan dan Sosial Humaniora Vol. 2 No. 5 (2025): September : Aliansi: Jurnal Hukum, Pendidikan dan Sosial Humaniora
Publisher : Asosiasi Peneliti dan Pengajar Ilmu Hukum Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62383/aliansi.v2i5.859

Abstract

This research aims to analyze the essence of the principle of legality and the recognition of living law in society after the reform of the Indonesian National Criminal Code (KUHP). The study employs normative or doctrinal juridical research, which relies on a legislative and conceptual approach. The principle of legality is a fundamental doctrine in criminal law, emphasizing that no individual may be punished without pre-existing legal provisions. This principle is crucial not only as an instrument to guarantee legal certainty but also as a safeguard of human rights against arbitrary and repressive actions of the state. Traditionally, the principle of legality contains several core elements, namely lex scripta (law must be written), lex certa (law must be clear), lex stricta (prohibition of analogy), and lex praevia (non-retroactivity of law). These elements ensure that criminal provisions are accessible, predictable, and prevent abuse of power. However, with the enactment of the new Criminal Code in 2023, the meaning and application of this principle have shifted. The reform introduces a transition from a strictly formal legality principle toward a material legality principle. This development is particularly reflected in Article 2, paragraph (1) of the new Criminal Code, which explicitly recognizes living law (hukum yang hidup dalam masyarakat) as a legitimate source of criminal law. The recognition of living law expands the scope of legality beyond statutory law to include unwritten norms that are deeply rooted in local communities and cultural traditions. On the one hand, this reform represents an effort to align national criminal law with Indonesia’s socio-cultural realities. On the other hand, it also raises critical debates regarding legal certainty, uniformity, and potential conflicts with universal human rights standards.
Optimizing Criminal Sanctions Against Narcotics Crimes in Indonesia Albri Labaka; Muh Endriyo Susila
Pena Justisia: Media Komunikasi dan Kajian Hukum Vol. 24 No. 1 (2025): Pena Justisia
Publisher : Faculty of Law, Universitas Pekalongan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31941/pj.v24i2.5475

Abstract

This study discusses the application of criminal sanctions for narcotics crimes in Indonesia. It also aims to find solutions to legal problems by using juridical-normative research because it prioritizes the conception of LawLaw as a law in doctrine, which is entirely covered in a conceptual approach to research. Research results: First, the justification for applying sanctions against narcotics offenders is based on the theory of determinism and the values of Pancasila justice, according to mono-dualistic teachings in criminal law. Theoretically, the application of action sanctions is in line with several legal theories, including the Combined/Modern Criminal Theory (Verenings Theorien), the Restorative Justice Theory, and the Double Track System Theory. Second, the revision of the Narcotics Law must establish limits and requirements for the application of sanctions for actions related to the type of crime and the perpetrator of the crime. This is important to do when the law is changed in the future. Third, sanctions can be implemented in two ways: normative through the Brainwashin program, decriminalization programs, and health programs for women drug users, and social forms through the separation of corrections and the establishment of particular institutions for the implementation of action sanctions, which are under the jurisdiction of the Prosecutor's Office Agung and in the future there needs to be a special narcotics court.
Co-Authors Muh Endriyo Susila