Understanding 'Living Law' in Indonesia's New Criminal Code

Indonesia's new Criminal Code, Undang-Undang Nomor 1 Tahun 2023, introduces a significant shift with Article 2, formally recognizing 'living law' or 'hukum yang hidup dalam masyarakat.' This provision challenges the traditional adherence to the principle of legality, which typically requires all criminal acts to be explicitly defined in written law.

Article 2(1) states that the principle of legality does not negate the validity of living law within society. Consequently, individuals can be punished for acts not explicitly written in the new code if those acts are considered reprehensible according to local customary law. However, Article 2(2) sets crucial limitations: living law is only applicable where it is practiced, must not be covered by the KUHP, and must be consistent with Pancasila, the 1945 Constitution, human rights, and generally accepted principles of civilized law.

Further regulations, specifically Government Regulation Number 55 of 2025, outline the procedures and criteria for determining living law. This move is seen by some as a form of legal decolonization, moving away from the strictures of the former Dutch colonial code (WvS). It acknowledges that justice can stem not only from written texts but also from deeply ingrained social norms within various Indonesian communities.

Despite the progressive intent, legal scholars and practitioners have raised concerns regarding the clarity and boundaries of 'living law.' The potential for ambiguity in defining what constitutes 'living law' and how it interacts with formal legal statutes presents a challenge. While the intention is to broaden the sources of criminal law beyond written statutes to include customary practices, careful implementation is required to ensure consistency and prevent arbitrary application, particularly in relation to adat (customary) law.