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.

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

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):

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.

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

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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:

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?

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?

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?

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.

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.

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

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.

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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:

Actions may be carried out by individuals, groups,

or members of indigenous communities.

The act committed violates the norms of

customary law.

Implementing Justice for Children in Conﬂict with the Law: Philosophical Aspects of Living Law

479

Such actions are deemed to damage the balance in

society and cause turmoil.

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

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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.

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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

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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.

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.

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