New Paradigm of Indonesian Criminal Law Policy to Formulate Sanctions for Cases of Customary Crimes

Abstract

Legal politics examines changes within present law due to consistent demands and needs of people. Legal politics continue to develop the rule of law, from the Ius Constitutum, which is based on the previous legal framework, to the formulation of the law in the future, the Ius Constituendum. The Indonesian 2019 draft of Criminal Code formulates customary sanctions as the fulfillment of customary obligations in several articles. These articles provide a new paradigm of criminal law policy to formulate criminal law reform in the future for customary sanctions in cases of customary crimes. The study used normative juridical or library research on normative legal substances. It aims to reveal the truth based on scientific logic from the normative side by examining library materials or secondary data consisting of primary and secondary legal materials. The results show that the fulfillment of customary obligations can be expected to become criteria or signs/guidelines for judges to determine “law that lives in society” or “The Living Law” as a source of law (material legality) in the future. It is a form of new paradigm in the renewal of customary criminal law. Thus, customary (criminal) law can become (1) a positive source of law, in the sense that customary criminal law (sanctions) can be the legal basis to examine cases at the Court; and (2) negative sources of law, in the sense that the provisions of customary criminal law (sanctions) can be justified reasons, reasons for mitigating punishment or providing more severe punishment.