Analisis Living Law dalam Masa Transisi Pemberlakuan KUHP Nasional

Abstract

This study aims to analyze the position and application of living law during the transitional period of the implementation of the National Criminal Code, as well as the implications of the absence of regulations governing customary criminal procedural law for legal certainty. This study employs a normative legal research method with a statutory approach through a literature review, supplemented by interviews as supporting data. The object of the research is the position and application of living law under the National Criminal Code (Law Number 1 of 2023) during its transitional implementation period, with a focus on the implications of the legal vacuum concerning customary criminal procedural law for legal certainty. The research data primarily consist of primary, secondary, and tertiary legal materials obtained through literature review and documentation, supplemented by interviews with the Malay Customary Institution (LAM) and customary leaders. Data were collected through literature review and documentation, while data analysis employed a descriptive-analytical qualitative approach to examine the application of living law and its implications for legal certainty and justice. The findings indicate that the recognition of living law under Article 2 of the Criminal Code represents an effort to accommodate customary law within the national criminal justice system without disregarding the principle of legality. However, the absence of regulations governing customary criminal procedural law continues to pose challenges to legal certainty. Therefore, further strengthening is required through the inventory and documentation of customary laws, the establishment of regional regulations, and the development of guidelines for law enforcement officials. This recognition reflects respect for legal pluralism and customary law without setting aside the principle of legality; rather, it adapts its application to ensure legal certainty, justice, and the protection of human rights.