The Legality of the Living Law in the New Indonesian Penal Code

Abstract

Since the Netherland introduced a Penal Code, The Indonesian people are required to rely on the principle of legality as the primary source of law in determining criminal offences. The old penal code does not allow living law to function as an independent source of law. On January 2nd, 2023, the new Indonesian Penal Code was finally established, which will enter into force within three years after its issuance. The provision of living law in the new Indonesian penal code is formulated in article 2. In its first verse, it is written that “provisions, as referred to Article 1 (legality principle), does not negate the validity of the law that live in a society which stipulates that someone deserves to be punished even though the act is not regulated in this Law." In the explanation section, it is stated that “law that lives in society” (living law) refers to Adat Law, which should be codified through Regional Regulations (Peraturan Daerah). This raises two issues: first, it confines the concept of living law solely to Adat Law; second, it requires Adat Law to be formalized in the form of regional legislation. If Adat Law must be regulated through Regional Regulations, the necessity of Article 2 becomes questionable. The purpose of recognizing living law is to address gaps in legal principles that cannot always keep pace with a rapidly changing society.

Keywords

• Legality principle
• Living law
• New Indonesian penal code