Implementing Justice for Children in Conflict with the Law:
Philosophical Aspects of Living Law
Didi Jubaidi and Timbo Mangaranap Sirait
Law, Universitas 17 Agustus 1945 Jakarta, Indonesia
Keywords: Children, Criminal Law, Philosophical, Living Laws.
Abstract: The process of juvenile criminal justice has demonstrated how the law operates, still adhering to syllogism
principles, a legalistic perspective of the law, and equating law with legislation. This type of research is
normative legal research using a philosophical, theoretical, and conceptual approach. The research was
conducted in the provinces of Bali. This paper provides insights into the latest trends in research. The research
findings indicate that the essence of customary criminal sanctions is significantly influenced by the values
prevailing in society as a cultural value system and is also influenced by philosophical and sociological
aspects. Similarly, for various cultures, tribes, and customary practices, the application of customary criminal
sanctions varies greatly based on specific variables. In Indonesia's traditional legal system of local
communities, better known as customary law, the tendency of customary sanctions leans towards a restorative
meaning. Meanwhile, the formation of practical law is oriented towards legal principles, as law is not merely
a structure of regulations but also embodies philosophical values. Hence, it is only fitting that legal regulations
encompass a section capable of transmitting philosophical values, and that section is the legal principles.
1 INTRODUCTION
Punishment that is applied inappropriately because it
is influenced by factors such as the attitude of judges
who tend to be too rigid and focus on legalistic
aspects, and prioritize legal certainty, can result in
neglect of child protection. This occurs because the
basic concept in punishing children should be the last
resort, and the punishment applied should be
temporary, in this context, child protection can also
be neglected because punishment of children should
be considered as a last resort (ultimum remedium)
and must consider the interests and rights of children
(Supeno, 2010).
Child protection is an important principle in law,
which recognizes that children have special rights and
protections that must be considered in any legal
action or decision that may affect them. This includes
juvenile sentencing, where prevention, rehabilitation
and educational approaches are considered to take
precedence over harsh and long- term punishment.
If sentences imposed on children do not take into
account these principles and are based more on legal
certainty, this can have a negative impact on the
child's development and rehabilitation. Therefore, it
is important for the justice system to remain sensitive
to children's rights and ensure that sentences are in
line with the goals of rehabilitation and protection.
Va
rious legal instruments, both in the Indonesian
context and international law, which emphasize that
punishment of children involved in criminal acts
should only be used as a last resort. In addressing this
situation, there needs to be more constructive and
restorative alternatives to punishment, which reflect
the principles of justice, to deal with children
involved in violations of the law, apart from
imprisonment (Lidya Rahmadani Hasibuan,
M.Hamdan, 2015). Furthermore, it is important that
the judge's decision does not have a negative impact
on the physical, mental, attitudinal and social aspects
of the child. The purpose of the judge's decision
should not be solely retaliation or punishment, but
rather focus more on the welfare of the child and the
restoration of his or her condition. In this case, it is
necessary to consider the child's future and ensure
that the decision supports the child's recovery so that
they can return to their original or better condition.
Thus, the application of punishment to children in
conflict with the law must be in line with the values
of justice, concern for the welfare of children, and the
goal of rehabilitation. This is in line with the concept
of child protection that is recognized both at the
Jubaidi, D. and Sirait, T.
Implementing Justice for Children in Conflict with the Law: Philosophical Aspects of Living Law.
DOI: 10.5220/0012582700003821
Paper published under CC license (CC BY-NC-ND 4.0)
In Proceedings of the 4th International Seminar and Call for Paper (ISCP UTA ’45 JAKARTA 2023), pages 475-485
ISBN: 978-989-758-691-0; ISSN: 2828-853X
Proceedings Copyright © 2024 by SCITEPRESS – Science and Technology Publications, Lda.
475
national and international levels.
The judicial process in handling juvenile criminal
offenses has illustrated how the legal system operates,
by still prioritizing the principle of syllogism, a legal
approach that tends to be legalistic, where the law is
considered synonymous with the law. In this view,
the law is considered the only relevant source of law,
considered to have covered all aspects of the law in
detail and clearly. Therefore, judges are considered to
have limitations to act beyond what has been strictly
and rigidly regulated in the law.
In practice, this approach may result in a lack of
scope for judges to interpret the law or make
decisions that are more contextualized and based on
broader principles of justice. This can lead to a
neglect of individual and situational factors that may
influence juvenile criminal cases. Legal approaches
that rely solely on the text of the law often overlook
the importance of social, psychological and
rehabilitative contexts in the treatment of children
involved in criminal offenses. Therefore, there is a
push to consider a more holistic, restorative and
adaptive approach to dealing with juvenile offending,
which recognizes the complexity and individual
needs in each case. More inclusive and child-
responsive legal thinking can help avoid potential
negative impacts on children's rights and welfare in
the justice system. Sanctions or customary
obligations that still exist in Indonesian society
against children. Some of these sanctions or
obligations may not always be in line with the
principle of respect for the rights, dignity and rights
of the child and may have a negative impact on the
child's physical and mental health. Customary
sanctions or obligations such as Nyanguin Banjar that
reflect the culture and traditions of the Balinese are an
integral part of Indonesia's cultural heritage.
However, when applied to children, it is necessary to
strike a balance between respect for tradition and
protection of children's rights. The protection of
children's rights in Indonesia is governed by various
laws and regulations, such as Law No. 35/2014 on
Child Protection. This law recognizes children's right
to live, grow and develop at their best and to be
protected from any adverse influence or exploitation
that may harm them. In situations like this, the
government and community need to work together to
ensure that the implementation of customary
obligations does not neglect the rights and interests of
children. Respect for tradition and culture can be
maintained while ensuring that children do not face
inappropriate physical and mental health risks. It may
be important for authorities, community
organizations and relevant agencies to engage all
parties in dialogue and education, so that awareness
about child protection can be raised while
safeguarding the cultural heritage that is important to
the community (Widnyana, 2013).
In various regions in Indonesia, there are
variations in the form and implementation of
customary criminal sanctions that are still practiced in
accordance with local traditions and culture. In
Minangkabau society, there is a customary criminal
sanction known as "Berabu Dijentik" or "Kuma
Disasah," where perpetrators of certain acts are
required to organize a banquet by slaughtering
chickens to buffaloes. This sanction has social and
economic aspects, where the perpetrator must make a
donation that has meaning in the customary context.
In South Sumatra, there are customary criminal
offenses that refer to the "Simbur Cahaya" or "Ratu
Sinuhun's Charter". This book of customary law
contains regulations governing various aspects of
community life, including rules of social intercourse,
agriculture, and customary governance. The
customary criminal sanctions that apply here involve
actions such as making donations or giving goats as a
form of reparation and avoiding bad luck (Suryani
Widyati, 2014).
This variation reflects the diversity of cultures,
traditions, and legal perspectives in Indonesia.
However, it is important to ensure that the application
of customary criminal sanctions does not conflict
with the rights and welfare of individuals, especially
children. Understanding and respecting cultural
heritage while safeguarding human rights is an
important challenge in maintaining a good balance
between tradition and protection. The characteristics
of "fulfillment of customary obligations" and the
characteristics of additional punishment in general
have several important features luck (Suryani
Widyati, 2014):
1.
Dependency on Principal Punishment:
Additional punishment generally cannot be imposed
or applied without the principal punishment being
imposed first. This means that the additional
punishment becomes linked to the main punishment
given for the violation of the law.
2.
Accessory or Attached Nature: Additional
punishment is considered to have an accessory or
attached nature to the main punishment. This means
that additional punishment usually does not have its
own independence and only appears as an addition to
the main punishment that has been imposed.
However, it is important to note that in some
jurisdictions, such as the Netherlands since 1959,
there has been a change in the approach to additional
punishment. The possibility of imposing additional
ISCP UTA ’45 JAKARTA 2023 - THE INTERNATIONAL SEMINAR AND CALL FOR PAPER (ISCP) UTA ’45 JAKARTA
476
punishment has been opened up separately from the
principal punishment. This means that additional
punishments do not always have to be imposed at the
same time as the main punishment and can be
considered separately, depending on policy and
applicable law. It is important to understand the
differences in legal approaches to additional
punishment in different jurisdictions, as this may
impact how additional sanctions are applied in a
particular context.
Research that will focus on the conceptualization
or ideas of judges in applying customary criminal
sanctions in juvenile criminal cases based on the
juvenile justice system in Indonesia has an important
meaning. This idea links the values of justice instilled
in society with judicial practices and the application
of sanctions in cases of juvenile crime. This concept
reflects the close relationship between law, society
and justice. Here are some aspects to consider in this
research:
1.
Local Justice Values: This research could
explore how local justice values, including in the
context of customary law or tradition, influence
judges' views and approaches to the application of
customary criminal sanctions in juvenile criminal
cases. How are these values reflected in judges'
considerations in deciding on appropriate
sanctions?
2.
Conformity with Child Protection Principles:
In applying customary criminal sanctions in
juvenile criminal cases, it is important to ensure
that child protection principles are respected and
carefully considered. How do judges maintain a
balance between tradition and the protection of
children's rights in their legal decisions?
3.
Interaction between National and Customary
Legal Systems: How do judges accommodate and
integrate local justice values with national and
international legal principles relating to child
protection? How do they interpret the relationship
between customary criminal sanctions and the
broader juvenile justice system?
4.
Philosophical and Ethical Aspects: The research
could also investigate the philosophical and
ethical considerations that guide judges in
deciding on the application of customary criminal
sanctions. What moral considerations play a role
in their decisions?
Such research will provide deeper insights into how
the Indonesian juvenile justice system interacts with
cultural values and local justice in the application of
customary criminal sanctions in juvenile criminal
cases.
2
LITERATURE REVIEW
Previous research that has been conducted on the
issue of living law was written by (Hadi, 2018) with
the title "Positive Law and Living Law (Existence and
Application in Society)". This research focuses more
on the study of the dialogical debate between the
school of legal sociology and the school of legal
positivism.
Furthermore, (Hamzani et al., 2019) in his article
entitled “Considering Living Law as a Source in
National Legal Development focuses on discussing
the importance of including living law in national
legal development.”
Another research was conducted by (Khoirunnisa
& Jubaidi, 2023b) with the title "Significance of the
Living Law Concept in the New Criminal Code: A
Progressive Law Perspective". This research focuses
more on the importance of living law arrangements in
the New Criminal Code from a progressive legal
perspective.
While this research emphasizes more on the
essential aspects of customary criminal sanctions
which are significantly influenced by the values
prevailing in society as a cultural value system and
also influenced by philosophical and sociological
aspects, although it refers to almost the same
regulations and discussions regarding living law, but
with a different perspective, the author in this paper
emphasizes more on living law related to customary
law, so it is still actual to be discussed. With a
different approach, the author can provide new views,
deeper analysis, and diverse perspectives related to
living law in customary law. In the context of the
actuality of the discussion, this research can provide
relevant and valuable information for readers who are
interested in the issue of living law.
3
METHODS
This research focuses on a normative legal approach
with the aim of producing arguments, theories, or
concepts as solutions to overcome a problem, the
approach used is a qualitative- normative approach
involving philosophical, theoretical, and conceptual
approaches (Khoirunnisa & Jubaidi, 2023a). This
research was conducted in Bali Province and was
carried out by identifying concepts or ideas used by
judges through legal discovery methods in judges'
decisions. This approach illustrates the tendency of
judges in juvenile justice practice.
Implementing Justice for Children in Conflict with the Law: Philosophical Aspects of Living Law
477
4
RESULTS AND DISCUSSION
4.1 Living Law Theory with
Customary Law
Soepomo argues that customary law is the living law,
because it reflects the reallife experiences of the
community. In accordance with its natural character,
customary law continues to develop along with the
development of the community itself (Soepomo,
1987). The term "customary law" first appeared
during the VOC colonial era under Dutch rule under
the influence of Van Vollenhoven. It is important to
note that customary law is not the same thing as
customary law, which is the English translation of
adat law. Customary law refers to the norms of
custom that prevail in society and is not in the nature
of legal regulations made by government authorities.
Professor Van Vollenhoven, who first introduced
the term customary law, gave a definition of
customary law as a set of rules of conduct applicable
to natives and foreigners in the East, which on the one
hand has legal sanctions and on the other hand is not
regulated in the form of a written code because it is
customary (Haq, 2020). Although Van Vollenhoven's
view was suitable for describing Adat Recht at the
time, according to Abdulrahman, the definition is not
fully in accordance with the current Customary Law
(Meidy, 2022).
According to J.H.P. Bellefroid, customary law is
a set of rules that are not formally written or
promulgated but are respected and obeyed by the
community with the belief that these rules have legal
force (Wulansari, n.d.)
.
A similar thought was expressed by Prof. Mr. B.
Terhaar Bzn, who defined customary law as
the
totality of rules reflected in the decisions of
customary chiefs and applied spontaneously in
society. Terhaar's opinion on the definition of
customary law is often linked to his theory called
"Decision Theory." This means that to determine
whether a custom is considered customary law, it is
necessary to consider the attitude of the ruler of the
legal community towards violations of customary
regulations. If the ruler imposes punishment on the
violator, then the custom is considered to have
become customary law (Bzn, n.d.).
According to the view of (Soekanto, 1988) the
essence of customary law is actually
customary law
that has an impact on the legal aspect and is a series
of repeated actions in a similar form, with the aim of
leading to a just society. Based on the results of the
Seminar on Customary Law and the development of
National Law, customary law is defined as
Indonesian native law that is not written in the form
of laws of the Republic of Indonesia, which includes
elements of religion in various contexts. According to
the view of (Muhammad, 2002) customary law is a
legal framework that regulates human behavior in
Indonesia in relationships between individuals, both
through general norms involving customs and ethics
adopted and upheld by members of the indigenous
community, as well as through rules governing
sanctions for violations set by customary leaders.
According to Dr. Sukanto, S.H., customary law is
a collection of various customs that are generally not
regulated in written form, not codified, and are
binding with sanctions that have legal effects. In
Djojodigoeno's view, the dimensions of customary
law have two aspects, namely the formal and material
dimensions. The formal dimension refers to unwritten
law, while the material dimension relates to the
system of norms that reflect the concept of
community justice (Lukito, 2008). In the Indonesian
context, customary law reflects the living law of the
Indonesian people.
Customary law can also be used as a source of law
by judges if required by law (Sulastriyono, 2012).
Customary Law is the uncodified law within the
Indonesian nation and foreign Eastern communities
such as Chinese and Arabs. In analyzing the position
of customary law in the legal system, the principles
of the natural flow of legal science Sociological
Jurisprudence by (Eugen, 1963), needs to be
considered, where the basic concept is living law.
The term "the living law" was first introduced by
(Eugen, 1963) as a contrast to "state law." "State law"
refers to law made by the state or positive law. For
Eugen Ehrlich, the evolution of law centers on society
itself, not on the formation of law by the state, the
decisions of judges, or the development of legal
science. Eugen Ehrlich argued that society is the main
source of law, and law cannot be separated from its
social context. Eugen Ehrlich wanted to emphasize
that "the living law" is the law that controls people's
lives, even if it has not been described in the form of
formal legal statements. From this view, it can be
understood that the living law is a set of rules that was
born along with the emergence of society. Law grows
from within society, and its purpose is to serve the
interests of society. Therefore, Eugen Ehrlich argues
that state law is not something separate from social
factors. State law must consider "the living law" that
has existed and developed in the life of society
(Eugen, 1963), states:
"Rules of law are not lifeless constructions which
exist independently of the social reality. On the
contrary, they are parts of the "living", i.e.
ISCP UTA ’45 JAKARTA 2023 - THE INTERNATIONAL SEMINAR AND CALL FOR PAPER (ISCP) UTA ’45 JAKARTA
478
functioning and effective order of social
communications, which protects certain interests
privileged by society and discriminates those
interests that are denounced and disapproved by
society. Society itself engenders a general order of
societal relations, which is later put into legal forms
by social groups and individuals who act thereby in
the capacity of lawmakers (in the broader meaning,
as specified above)"
In addition to the views expressed by Eugen
Ehrlich above, the concept of "The living law" can
also be exemplified from a historical point of view
with its main figures (Von Savigny, 1880), proposed
his theory in response to efforts to transplant Roman
law and German codification into French law. In this
context, F.K. von Savigny presented the concept of
"Volksgeist" (national spirit, national character, soul
of the people) which suggests that law derives from
the distinctive beliefs of the nation itself.
Furthermore, F.K. von Savigny emphasized that law
is part of the culture that flows in society. This implies
that law is found in society and not created by the
authorities. Law reflects the distinctive and
indigenous spirit of different nations. Law is not a
product of nature or God, but law can be found
through the vibrations of community life. Therefore,
law is an important component of social and national
life (Reimann, n.d.).
Law exists, develops, declines, and strengthens
along with the development of society. This
phenomenon shows that law cannot be separated from
the context of society. As expressed by Karunamay
Basu, "the law grows along with the nation, increases
along with it, dies when the nation dissolves, and
becomes its characteristic". F.K. von Savigny's view
underlines that the optimal law is a law that is found
from within its society, not a law that is formed and
separated from the social reality in which the law
applies. Such law is referred to as "The living law,"
which is a law that lives, grows, and exists together in
the dynamics of social life. The government should
not only import laws that are not derived from the
values and culture of its people, but the government
must actively explore the living law (Kutner L., n.d.).
According to Professor Sulis Irianto, the term
"living law" is not just an ordinary phrase, but is a key
concept studied historically in various fields of legal
science, including legal anthropology. The essence of
"living law" is the law that is truly recognized and
applied in society. In the study of legal pluralism, it is
accepted that state law is not the only law that controls
the behavior of citizens. In everyday reality, there is
customary law, religious law, custom, or a mixture of
these, which are equally effective in regulating
relations between individuals. Although state law has
a strong supremacy, its role in everyday life is very
limited. State law is generally only found in
administrative matters, civil transactions or criminal
offenses. In contrast, other laws outside of state law
are closer to the daily reality of society (Irianto,
2022).
It is understood that "living law" is not the same
as normatively formulated legal texts, whether in
state law, custom, religion, or unwritten legal norms.
Legal texts always reflect ideal norms, aiming to
protect society from crime, greed, and regulate the
distribution of justice. However, a gap always exists
between the ideal formulation and the legal practices
that occur in society. Not all individuals abide by the
law, some break it. In this context, the question is
what exactly is "the living law"? It refers to the law
that has been tested in cases of dispute, i.e. when
violations of the law are resolved in courts, customary
communities, or religious circles. This is when
idealized articles or norms are tested through
discussions between judges and parties. From this
comes the judge's judgment and decision. In fact,
"living law" is the result of the decision of a judge or
authority in the community, which emerges after the
examination of the legal text. This is the law that will
be followed and applied in the life of the community.
4.2 Philosophical Aspects of Actual
Law Incorporation: The
Importance of Customary Criminal
Sanctions in Ensuring Justice for
Children Facing the Justice System
The philosophical aspect involves the essence of truth
and justice, while the sociological dimension
accommodates cultural values that live and grow in
society. Both philosophical and sociological aspects
in its application require extensive knowledge,
experience, and wisdom to adapt to the values that are
nurtured in society but often overlooked. The
application of customary criminal sanctions is
strongly influenced by the cultural value system that
develops in society and is influenced by philosophical
and sociological aspects.
In Indonesia, which is known for its cultural
diversity, ethnicity, and customs, the application of
customary criminal sanctions has significant
variations. This variability is caused by several
factors, among others:
a.
Actions may be carried out by individuals, groups,
or members of indigenous communities.
b.
The act committed violates the norms of
customary law.
Implementing Justice for Children in Conflict with the Law: Philosophical Aspects of Living Law
479
c.
Such actions are deemed to damage the balance in
society and cause turmoil.
d.
The community's response to the act results in
sanctions or fulfillment of customary obligations.
In this context, both individual and collective
aspects as well as conformity with customary norms
play an important role in determining the type and
level of customary criminal sanctions applied.
Understanding these dynamics will help formulate
legal policies that are more in line with the social and
cultural conditions of the community.
Customary crimes occur when the community
considers that an action is inappropriate, is considered
to disturb the balance of the universe, and causes
unrest in the community. According to Soepomo's
view, in the customary law system, all actions that are
not in accordance with the rules of customary law are
considered acts against the law, and in customary law
there is also the concept of legal rejuvenation if the
rules are violated. Furthermore, Soepomo explained
that if there is a violation of the law, then the legal
authorities (such as the customary head and the like)
will take concrete action (referred to as "adat reactie")
to restore the violated legal rules (Soepomo, 1987).
Acts that violate customary law norms are often
referred to as "customary offenses". Ter Haar
explains that offense (delik) refers to a unilateral
disturbance of the balance, or a unilateral impact on
the goods of life, both material and immaterial,
belonging to an individual or group. Such an act
triggers a reaction whose nature and magnitude are
determined by customary law, and this reaction is
known as the "adat reaction" or "adat reactie".
Through adat reaction, the disturbed balance can and
must be restored, often by paying compensation in
any kind or money as a consequence of the
violation (Bzn, n.d.).
In the traditional Indonesian view, the most
important aspect is the creation of balance (evenwicht
harmonie) between the physical and metaphysical
realms, between whole human groups and
individuals, and between society and its members.
Otje Salman Soemadiningrat explains that any
violation of customary norms will cause imbalance in
society. Therefore, it is important for any violation of
custom to be subject to customary sanctions that serve
as a means to restore the disturbed natural balance
(traditional cure). These customary sanctions aim to
restore harmony that has been disrupted due to
customary violations and maintain balance in the
lives of traditional Indonesian society (Salman
Soemadiningrat, 2011).
According to Soepomo's view, in the customary
law system, all actions that are not in accordance with
the rules of customary law are considered acts against
the law, and in customary law there is also the concept
of legal rejuvenation if the rules are violated.
Furthermore, Soepomo explained that if there is a
violation of the law, then the legal authorities (such
as the customary head and the like) will take concrete
action (referred to as "adat reactie") to restore the
violated legal rules (Soepomo, 1987).
Acts that violate customary law norms are often
referred to as "customary offenses". Ter Haar
explains that offense (delik) refers to a unilateral
disturbance of the balance, or a unilateral impact on
the goods of life, both material and immaterial,
belonging to an individual or group. Such an act
triggers a reaction whose nature and magnitude are
determined by customary law, and this reaction is
known as the "adat reaction" or "adat reactie".
Through adat reaction, the disturbed balance can and
must be restored, often by paying compensation in
kind or money as a consequence of the violation (Bzn,
n.d.).
In the traditional Indonesian view, the most
important aspect is the creation of balance (evenwicht
harmonie) between the physical and metaphysical
realms, between whole human groups and
individuals, and between society and its members.
Otje Salman Soemadiningrat explains that any
violation of customary norms will cause imbalance in
society. Therefore, it is important for any violation of
custom to be subject to customary sanctions that serve
to restore the disturbed natural balance (traditional
cure). These customary sanctions aim to restore
harmony that has been disrupted due to customary
violations and maintain balance in the lives of
traditional Indonesian society (Salman
Soemadiningrat, 2011).
In the traditional legal structures found in local
communities in Indonesia, there is a customary legal
system that often leads to restitutive sanctions.
Hadikusuma describes the customary law system as
part of a series of customary laws that start from
human reason or thought, which is a tool of thought
given by God and reflected in daily actions. If these
actions are followed by others, a habit will be formed.
If the habit is accepted by many people, it will
develop into a custom, and in the context of
government, this custom will be recognized as
customary law.
In the customary law system, the sanctions
applied tend to have a restitutive character, meaning
that the sanctions aim to restore balance and harmony
in society that has been disrupted due to violations.
These sanctions do not only focus on punishment, but
also on restoring social relations and restoring the
ISCP UTA ’45 JAKARTA 2023 - THE INTERNATIONAL SEMINAR AND CALL FOR PAPER (ISCP) UTA ’45 JAKARTA
480
balance of nature and the order of society that was
damaged by the act of violating customary norms.
This reflects the concept of conflict resolution and
reconciliation in Indonesia's customary law tradition
(Hadikusuma, 2003).
4.3 Characteristics of Customary
Criminal Sanctions in Handling
Juvenile Criminal Cases in
Indonesia
Customary sanctions have a role and function as
elements that maintain stability and restore balance
between the physical and metaphysical worlds. In
situations of violation, individuals who violate
customary norms will be directed to make recovery
efforts such as cleaning the village or other actions
aimed at restoring the disturbed balance. The
punishment process can be interpreted as the
determination stage as well as the implementation
stage of sanctions in the realm of criminal law.
Sudarto's view shows the difference between
criminalization in two dimensions:
Criminal administration in abstracto involves the
determination of the criminal law sanction system
associated with the lawmaking process. On the other
hand, the administration of punishment in concreto
relates to the various institutions that jointly support
and implement the criminal sanction system.
The issue of determining sanctions in customary
criminal law is part of a series of policies that exist in
the legal system (Tongat et al., 2020). As a system,
each stage in the imposition of customary criminal
sanctions cannot be considered as a stand- alone
entity, but rather interconnected and mutually
influencing each other. In fact, these stages cannot be
separated absolutely.
When viewed within the framework of the overall
criminalization system, the determination of
customary criminal sanctions involves the authority
of several agencies working together. This can be
likened to the flow of the criminalization process that
flows from one agency to another in a predetermined
order. In this case, it is important that the stages of
punishment are carried out sequentially and in
accordance with predetermined limits (Lamintang,
2011). In this case, it is important that the stages of
punishment are carried out sequentially and in
accordance with predetermined limits.
However, in the context of the application of
customary criminal sanctions, there are customary
boundaries that arise in society that can result in
inequalities in the criminalization process. These
boundaries may result in disparities in the imposition
of customary criminal sanctions, where similar acts
may be dealt with differently based on different
cultural contexts and customs in society.
This underlines the importance of an in-depth
understanding of customary boundaries in the
application of customary criminal sanctions so that
inequality or disparity in the handling of criminal
cases can be minimized.
Disparities in the imposition of customary
criminal sanctions are difficult to eliminate, as they
involve the extent of judges' responsibility to consider
all relevant factors and variables in juvenile criminal
cases when making sentencing decisions. The
presence of these disparities is related to the
complexity of the issues, including in juvenile cases,
where the judge's judgment needs to consider many
diverse aspects. However, it is important to note that
disparities in customary criminal sanctions do not
necessarily result in injustice for child offenders.
When talking about equality in sentencing, it is
important to remember that equality itself does not
necessarily guarantee that the customary criminal
sanction imposed will automatically be the most
appropriate. The sentencing process, especially in the
case of customary criminal sanctions, involves
complex considerations that must consider the
context, culture, and values involved in the case.
Therefore, equality in the imposition of customary
criminal sanctions does not always result in proper
justification in the selection of customary criminal
sanctions applied specifically (in concreto),
especially when judges make judicial policies in
judicial decisions.
It is important to maintain a balance between the
principle of equality in sentencing and a deep
understanding of the cultural context and values
involved in the process of imposing customary
criminal sanctions, particularly in cases of children.
The use of customary sanctions is considered
appropriate and in accordance with the formation of
national criminal law, in accordance with the
provisions in Law No. 11/2012 on the Juvenile
Criminal Justice System and the revision of the
Criminal Code (KUHP), better known as the New
Criminal Code in Indonesia. The principle adopted is
the principle of material legality (Remmelink, n.d.)
This connection can be seen from the explanation in
the laws and regulations, the addition of types of
punishment in the form of payment of compensation
and fulfillment of customary obligations as
formulated in the New Criminal Code. The
reformation of criminal law in Indonesia is expected
to fulfill the sense of justice, because it can reflect the
culture and culture of Indonesian society.
Implementing Justice for Children in Conflict with the Law: Philosophical Aspects of Living Law
481
The principle of material legality emphasizes that
a person cannot be punished except on the basis of
clear and unequivocal laws. This is reflected in the
application of customary sanctions where the use of
customary criminal sanctions must be in accordance
with existing legal norms and enforced based on clear
provisions in the legislation.
This arrangement is in accordance with Law No.
11/2012 on the Juvenile Justice System and the
revision of the Criminal Code, which recognizes the
existence of customary law norms as a component
that can play a role in the juvenile criminal justice
system. Although customary sanctions do not always
have to be in the same form as modern criminal
penalties, the use of customary sanctions is regulated
in such a way that it still adheres to the principles of
material legality that ensure clarity and legal certainty
in the process of enforcing juvenile criminal law.
In the context of crime and punishment, it is very
important to formulate the purpose of the punishment
process. The basis for the formulation of this
objective stems from the belief that punishment is
basically only a tool to achieve certain goals. The
process of identifying the purpose of punishment is
based on a balance between two main objectives,
namely the "protection of society" which involves the
protection of victims and the "protection of
offenders." When looking at aspects that are more
concerned with the interests of the community, it is
natural that in the imposition of criminal sanctions,
types of customary criminal sanctions such as fines or
fulfillment of customary obligations are maintained.
However, it is important to note that customary
punishment is included in the category of "additional
punishment" and placed separately as a special or
extraordinary type of sanction. This reflects that
customary criminal sanctions have different
characteristics from conventional criminal sanctions.
Although it remains relevant to achieve the objectives
of community and individual protection, the use of
customary criminal sanctions is applied carefully and
contextually. By including customary punishment in
an additional category and paying special attention to
its characteristics, the legal system recognizes the
diversity of sanctions and ensures that their use is in
accordance with the principles of appropriate
punishment.
The key consideration in changing the position of
customary punishment is based on the understanding
that, when looking at the purpose of punishment and
the purpose of the use of criminal law in general (as a
tool of criminal and social policy), customary
punishment is basically not the main tool to regulate,
control, and improve society. In this view, customary
punishment is more of an exception.
In this context, customary punishment is
considered like surgery in medical practice, which is
not the main method or main medicine, but rather an
exception or additional tool used according to
circumstances. In this case, customary punishment is
understood as a tool or sanction used in certain
situations, perhaps as an alternative to respond to
violations of customary norms that have a negative
impact on social harmony. Although not the main
tool, the use of customary punishment still has
relevance as a special option in order to maintain
cultural and social values in society.
Every punishment has certain social implications
because the effectiveness of a sanction depends on
how society perceives the sanction. Soerjono
Soekanto provides a view that negative sanctions,
such as in the case of the death penalty, for example,
with the use of an electric chair, firing squad, or
hanging, have different effects and impacts.
Similarly, a 3-year prison sentence has different
interpretations and significance for different groups
in society (Soekanto, 1988).
This highlights the importance of understanding
that punishment is not just a formal act, but also
carries social and psychological consequences.
Society's reaction to a punishment may vary based on
its culture, moral outlook, and social views.
Therefore, in designing and imposing punishment, it
is important to consider how society will respond and
understand the punishment.
The concept of individualization of punishment
not only refers to the adjustment or consideration of
individuals when imposing punishment, but also
involves the ability to modify, change, or adjust the
punishment in line with the development and changes
experienced by the convicted individual. Another
aspect of the idea of individualization of punishment
is the need for provisions that regulate the possibility
of modifying, changing, reviewing, or adjusting the
punishment that has been imposed, especially if there
are changes, developments, or improvements in the
convicted person (Soekanto, 2001).
In other words, penal individualization embodies
the concept that sentences should be responsive to
changes within the convicted person. This includes
the recognition that individuals are subject to
transformation, growth, and change in their lives,
which impacts the effectiveness and relevance of the
punishment that has been imposed. Therefore, the
idea of penal individualization illustrates the
importance of flexibility in the penal system to
accommodate individual development and ensure
that the punishment applied remains fair and
ISCP UTA ’45 JAKARTA 2023 - THE INTERNATIONAL SEMINAR AND CALL FOR PAPER (ISCP) UTA ’45 JAKARTA
482
appropriate to the actual situation of the convicted
person.
In the relationship between sanctions and
punishment, changes or adjustments can be made to
decisions of conviction and/or measures that have
obtained permanent legal force. This is done by
considering the development of the prisoner and the
purpose of the punishment. The amendment or
adjustment process can be carried out based on a
request from the prisoner himself, his parents,
guardian, or legal counsel. In addition, this request
can also come from the public prosecutor or
supervisory judge. These changes or adjustments
must not be more severe than the original decision
and must be approved by the prisoner.
This may include revocation or termination of the
remaining punishment or measure, or substitution of
another type of punishment or measure. If a request
for modification or adjustment is rejected by the
court, the prisoner can submit a new request after one
year from the rejection. However, if there are special
circumstances that indicate that the application
should be considered before the one-year time limit,
then this can be considered.
In essence, this concept recognizes the importance
of flexibility in sentencing to consider individual
development and change, as well as ensuring that the
punishment given remains in line with the aims of
rehabilitation and recovery of the prisoner.
In Indonesia, which has cultural diversity, there
are various special cultures in addition to general
culture. According to (Soekanto, 2001) the essence of
general culture and special culture are values that
refer to views on the concept of good and bad. If
norms that are considered good are followed and
applied, then a sub-culture will be formed.
Conversely, if bad values are not avoided and even
embraced, then perhaps an alternative culture will
emerge such as the culture of corruption.
In terms of determining criminal offenses based
on assumptions that are considered true, the apodictic
approach becomes relevant, especially when looking
at its function as an instrumental tool of law. This
requires further study to understand the extent of its
influence on the classification of criminal offenses,
which generally plays a role in expressing certain
values or qualities.
It should be noted that the complexity increases
when linking this with the requirement that the
criminal law system developed is not only defensive,
but also must be proactive (legislative forward
planning). (Widnyana, 2013)' With this anticipatory
approach, criminal law is directed to foresee potential
future offenses and formulate preventive measures
early. This requires criminal law to adapt to social
developments, technology, and situations that have
not yet occurred, with the aim of preventing criminal
offenses before they occur.
As such, there is a complex challenge in
combining the apodictic approach, the values
expressed by the classification of criminal offenses,
and the anticipatory requirements in building an
effective and appropriate criminal law system.
Sanctions given to juvenile offenders, in addition
to the main punishment, can also involve additional
punishment. For adult offenders, additional
punishment can be in the form of revocation of certain
rights, deprivation of certain goods or bills,
announcement of a judge's decision, payment of
compensation, revocation of certain licenses, as well
as fulfillment of local customary obligations or
obligations based on norms prevailing in the
community (Suryani Widyati, 2014). On the other
hand, additional punishments that may be imposed on
juvenile offenders may include the forfeiture of
benefits obtained from the criminal offense or the
performance of customary obligations (Suryani
Widyati, 2014). The application of this additional
punishment aims to provide further consequences to
the perpetrators of criminal offenses, as well as
provide a broader impact on them.
These additional punishments can have various
impacts, such as correcting the harm caused by the
crime, emphasizing the offender's responsibility to
society, and encouraging better behavior in the future.
By combining main and additional punishment, the
justice system can provide more holistic and
impactful sanctions in dealing with criminal offenses,
especially in juvenile cases.
Additional punishment refers to the imposition of
punishment that complements the main punishment
and is basically optional. Additional punishment
needs to be clearly outlined in the formulation of the
relevant criminal offense. This allows the judge to
consider whether additional punishment should be
imposed on the convicted person, with the exception
of cases of revocation of corporate rights and
fulfillment of customary obligations (Nur et al.,
2020). In the context of imposing additional
punishment on juveniles, a dual-track system is
applied, which refers to the type of action
(maatregelen). In this situation, the judge has the
authority to decide what measures to impose on the
child who committed the criminal offense. This
applies especially if the child cannot be held
accountable for his or her actions due to mental
illness, mental illness, mental retardation, or other
reasons that lead to a decision not to impose
Implementing Justice for Children in Conflict with the Law: Philosophical Aspects of Living Law
483
punishment. This dual-track system allows for the
handling of juvenile cases to focus more on correction
and rehabilitation, rather than punishment.
The use of living law in society that regulates
actions that are prohibited and threatened with
criminal sanctions are recognized as criminal acts and
threatened with criminal law sanctions is an exception
to the application of the principle of legality in the
criminal law system in Indonesia. The concept of
living law involves the formation of relevant criminal
law norms to deal with situations and challenges that
develop in society, which have not been explicitly
regulated in legislation.
The application of living law is a way to formulate
criminal law norms to provide legal certainty in the
future. This action recognizes the principle of legality
both formally and materially and serves as a tool to
strengthen and develop the field of criminal law and
punishment, as well as to strengthen the practice of
criminal law enforcement.
This indicates that in certain situations, the
principle of legality underlying criminal law can be
adjusted to social, cultural, and normative
developments in society. In this way, the criminal law
system can remain relevant and effective in dealing
with the dynamics that occur in society.
5
CONCLUSION
In Indonesia, the core of customary criminal
sanctions is heavily influenced by the norms and
values that develop in the culture of the community
and is also influenced by philosophical and social
factors. This also applies to the diverse cultures,
tribes, and traditions that exist, resulting in variations
in the application of customary criminal sanctions
that are based on a variety of specific variables.
Within the framework of the traditional legal system
of local communities in Indonesia, known as the adat
legal system, the tendency of adat sanctions tends to
produce restitutive effects. Meanwhile, in the
practical formation of law, legal aspects are reflected
in legal principles, because law is not just a
regulation, but also reflects philosophical values.
Therefore, it is important to have a part in legal
regulations that can accommodate philosophical
values, which are embodied in the form of legal
principles.
In the criminal law framework, it is important to
consider aspects of justice, child protection and
community culture. The application of customary
criminal sanctions, while not primary, remains
relevant for restoration and balance. Additional
punishments, especially for children, reflect a holistic
and individualized approach to punishment. The use
of living law recognizes the adaptation of criminal
law to the development of society. Overall, the
integration of the values of justice, child protection,
and social norms is important to create a just society
through criminal law enforcement that focuses on
restoration and adaptation.
REFERENCES
Bzn, B. T. H. (n.d.). Principles and Order of Customary
Law. In the Decree of the King of Yogyakarta Sultanate
in the Perspective of Beslissingenleer Ter Haar’s
Theory. Justitia et Pax, 36(1), 117.
Eugen, E. (1963). Fundamental Principles of The Sociology
of Law. Walter L. Moll trans.
Hadi, S. (2018). HUKUM POSITIF DAN THE
LIVING LAW (Eksistensi dan Keberlakuannya dalam
Masyarakat). DiH: Jurnal Ilmu Hukum, 5(2), 259266.
https://doi.org/10.30996/dih.v0i0.1588 Hadikusuma,
H. (2003). Pengantar Ilmu Hukum Adat
Indonesia. Mandar Maju.
Hamzani, A. I., Aravik, H., Mukhidin, M., & Praptono,
E. (2019). Considering the Living Law as A Source in
National Legal Development. Jurnal Cita Hukum, 7(2).
https://doi.org/10.15408/jch.v7i2.10951
Haq, H. S. (2020). Pengantar Hukum Adat Indonesia.
Lakeisha.
Irianto, S. (2022, June 27). Living Law in the Criminal Law
Draft by Prof. Sulistyowati Irianto.
https://law.ui.ac.id/living-law-dalam-rancangan-
hukum-pidana-oleh-prof- sulistyowati-irianto/
Khoirunnisa, & Jubaidi, D. (2023a). Exploring the Meaning
of Faith and Kufr: Perspectives of Islamic Theological
Schools. Pharos Journal of Theology, 104(104(5)), 1
15.
https://doi.org/10.46222/pharosjot.104.510 Khoirunnisa, &
Jubaidi, D. (2023b). The Significance Of The Living
Law Concept In The New
Criminal Code: A Perspective Of Progressive Law. Journal
of Namnbian Studies, 35, 2424 2448.
Kutner L. (n.d.). Savigny: German Lawgiver.
Marquatte Law Review, 55(2), 283.
Lamintang, P. A. F. (2011). Dasar-dasar Hukum Pidana
Indonesia.
Lidya Rahmadani Hasibuan, M.Hamdan, U. M. B. (2015).
Restorative Justice Sebagai Pembaharuan Sistem
Peradilan Pidana Berdasarkan UU NO.11 Tahun 2012
Tentang Sistem Peradilan Pidana Anak. USU Law
Journal, 3(3), 66.
Lukito, R. (2008). Indonesian Legal Traditions.
Terrace Publishers. .
Meidy, S. H. (2022). Eksistensi Pemberlakukan Pidana
Adat Bagi Masyarakat Di Luar Hukum Adat.
Widya Yuridika: Jurnal Hukum, 5(1), 175190.
Muhammad, B. (2002). Asas-Asas Hukum Adat, Suatu
ISCP UTA ’45 JAKARTA 2023 - THE INTERNATIONAL SEMINAR AND CALL FOR PAPER (ISCP) UTA ’45 JAKARTA
484
Pengantar. Paradnya Paramita.
Nur, R., Sampurno Soewondo, S., Muchtar, S., & Azisa, N.
(2020). The Essence of Sanctions in Juvenile Justice
System. Journal of Law Pol’y & Globalization , 95, 48.
Reimann, M. (n.d.). The Historical School Against
Codification: Savigny, Carter, and the Defeat of the
New York Civil Code. American Journal of
Comparative Law, 37, 9598.
Remmelink, J. (n.d.). Hukum Pidana Komentar Atas Pasal-
Pasal Terpenting dari Kitab Undang- Undang Hukum
Pidana Belanda dan Padanannya dalam Kitab
Undang-Undang Hukum Pidana Indonesia. PT
Gramedia Pustaka Utama.
Salman Soemadiningrat, O. (2011). Rekonseptualisasi
Hukum Adat Kontemporer. Alumni.
Soekanto, S. (1988). Efektivikasi Hukum dan Peranan
Sanksi (2nd ed.). Remadja Karya.
Soekanto, S. (2001). Hukum Adat Indonesia (3rd ed.).
PT. Raja Grafindo Persada.
Soepomo. (1987). Pokok-pokok Hukum Adat. PT. Paramita
Pradny.
Sulastriyono, A. (2012). Application of Norms and
Principles of Customary Law in Civil Justice Practice.
Journal Of The Law Pulpit, 24(1).
Supeno, H. (2010). Kriminalisasi Anak. PT Gramedia
Pustaka Utama.
Suryani Widyati, L. (2014). Pemenuhan Kewajiban Adat
sebagai Pidana Tambahan dalam RUU KUHP. Jurnal
Ius Quia Iustum, 20(3), 362385.
Tongat, T., Prasetyo, S. N., Aunuh, N., & Fajrin, Y. A.
(2020). Hukum yang Hidup dalam Masyarakat dalam
Pembaharuan Hukum Pidana Nasional.
Jurnal Konstitusi, 17(1), 157.
https://doi.org/10.31078/jk1717
Von Savigny, F. K. (1880). Private international law and
the retrospective operation of statutes: a treatise on the
conflict of laws and the limits of their operation in
respect of place and time. T. Clark.
Widnyana, I. M. (2013). Hukum Pidana Adat Dalam
Pembaharuan Hukum Pidana. PT Fikahati Aneska.
Wulansari. (n.d.). Indonesian Customary Law An
Introduction. Aditama Refika.
Implementing Justice for Children in Conflict with the Law: Philosophical Aspects of Living Law
485