LIVING LAW DALAM KUHP NASIONAL #IntisariHukumPidana 14

Summary

This video discusses the concept of *hukum pidana adat* (traditional criminal law) and its integration into Indonesia's new criminal code (KUHP). It highlights the formal recognition of unwritten, living law within the national legal system. The speaker outlines the legal processes for recognizing and enforcing traditional laws through regional regulations (Perda) and government regulations (PP 55/2025). The video explores the philosophical foundations of living law, its relationship with statutory law, and its impact on local justice systems, emphasizing restorative justice and community-driven legal processes.

Takeaways

• 😀 The video explains the concept of 'living law' or customary criminal law (hukum pidana adat) as recognized in Indonesia's new Criminal Code (KUHP).
• 😀 Article 2 of the new KUHP formally acknowledges customary law as part of the national criminal law system, unlike the old KUHP which had no such recognition.
• 😀 Customary criminal law, though unwritten, gains legitimacy through integration into the national legal framework and relevant regional regulations (Perda).
• 😀 The process for creating Perda involves proposals from communities or local government, academic research, and official review by ministries before enactment.
• 😀 The main sanction under customary law is fulfillment of customary obligations, distinguishing it from conventional punishments like imprisonment or fines in national law.
• 😀 Duplication of criminal provisions between national law and Perda is prohibited to ensure legal consistency.
• 😀 Historical and anthropological theories (e.g., Safid, Pukhta, Henry Maine, Van Vollenhoven) support the notion that law originates from society and evolves with it.
• 😀 The new KUHP balances legal certainty (lex scripta) and local justice by recognizing both written law and living law, especially for restorative justice practices.
• 😀 Article 597 specifies that violations of living law must be enforced by national courts if not resolved through customary dispute resolution, with penalties primarily in the form of customary obligations.
• 😀 Customary criminal law emphasizes local applicability, empirical recognition, and alignment with human rights, Pancasila, the Constitution, and international legal principles.

Q & A

What is the main topic discussed in the video?

The video primarily discusses 'Living Law' or 'Adat Criminal Law' and its integration into the new Indonesian Penal Code (KUHP). It highlights the recognition and application of customary law within the national criminal justice system.

What is the significance of the new KUHP in relation to Living Law?

The new KUHP formally integrates Living Law into the national criminal law system, allowing the recognition and application of customary laws that are still practiced by various communities across Indonesia.

How does the new KUHP differ from the old KUHP regarding Living Law?

Unlike the old KUHP, the new KUHP recognizes Living Law as part of the national criminal law system, formalizing its role in addressing criminal offenses within communities that follow customary laws.

What role does 'Living Law' play in the context of Indonesia's legal system?

Living Law refers to customary laws that have evolved and are practiced by local communities. The new KUHP acknowledges these laws and allows them to influence the national criminal justice process, provided they are integrated into local regulations or Perda.

What is the relationship between Perda (regional regulations) and Living Law?

Perda is essential for formalizing Living Law within local jurisdictions. It ensures that customary law can be enforced within specific regions, provided it meets the criteria set by national law and is backed by academic research and community input.

What is the role of the government in integrating Living Law into Perda?

The government plays a crucial role in facilitating the creation of Perda by ensuring that it aligns with the national legal framework. This process includes community proposals, academic research, and formal review by the Ministry of Law and the Ministry of the Interior.

What are the key differences between sanctions in national law and Living Law?

In national law, sanctions may include prison, fines, or community service, while in Living Law, the primary sanction is the fulfillment of customary obligations. This reflects the restorative nature of customary law, where the goal is reconciliation rather than punishment.

How does the principle of 'legal certainty' apply to Living Law?

Living Law must align with principles of legal certainty as outlined in the new KUHP and government regulations. This ensures that customary laws are applied consistently and fairly within the broader legal framework of Indonesia.

What philosophical influence does the concept of Living Law draw from?

The concept of Living Law draws heavily from the historical legal philosophy of figures like Friedrich Carl von Savigny, who believed that law evolves organically from the community rather than being imposed top-down by the state.

What are the procedures for implementing Living Law in local communities?

The procedure begins with community proposals, followed by academic research, public consultation, and eventually the drafting of Perda. The law must then be reviewed and approved by the relevant governmental authorities before being enforced within the region.