Asserting Living Law through the Negative Function of Material Unlawfulness under Law Number 1 of 2023

Abstract

Indonesian criminal law reform through Law Number 1 of 2023 recognizes living law as a source of criminal law, as stipulated in Article 2 of the Criminal Code. This provision reflects the integration of the principles of formal and material legality and recognition of the constitutional rights of indigenous peoples. However, its implementation has been controversial, particularly because it emphasizes the positive nature of unlawfulness, while in practice, society still applies material unlawfulness in a negative function. Phenomena such as gresek/ngasak in Java and elopement in Lombok demonstrate the difference between the assessment of customary law and national criminal law regarding an act. Although existing studies have examined living law and the principle of material legality, a research gap remains in comprehensively examining the application of material unlawfulness in its negative function as a basis for excluding the unlawfulness of an act that formally constitutes a criminal offense under the Criminal Code but is not regarded as unlawful under the living law of the community. This study is among the first to examine the negative function of material unlawfulness under Article 2 of the Indonesian Criminal Code. This study uses a normative juridical method, with a qualitative approach, based on a literature review of primary and secondary legal materials. The results demonstrate the need to consider living law in society as a basis for assessing material unlawfulness. The doctrine of material unlawfulness in a negative function has been applied in Supreme Court jurisprudence, particularly in Decisions Number 42 K/Kr/1965 and Number 81 K/Kr/1973. In both cases, although the formal elements of the crime were met, the judges considered that the unlawful nature could be eliminated based on the principles of justice, unwritten law, and the concept of material justice, so that the perpetrators were not punished. In the development of judicial practice, this teaching tends to be ignored. Conversely, in the lives of rural communities in Batang and Banjarnegara, this principle remains alive, reflected in the practice of gresek/ngasak, which is seen as a form of social solidarity and is not considered an unlawful act.

Keywords

• Living Law
• Criminal Code
• Material Legality Principle
• Criminal Law Reform
• Substantive Unlawfulness