Customary Criminal Law Research Articles

Keberadaan Hukum Pidana Adat dalam Ruang Lingkup Hukum Pidana Indonesia

The existence of customary criminal law in a society reflects the life of the community, and each region has its own unwritten criminal law which is coded according to local customs. In this study the author uses empirical juridical research methods. The type of research in this study is empirical juridical which is carried out directly by looking at customary law in Indonesia with the research specification being descriptive. Sources of data are field research and literature. This study uses a legal approach with data collection techniques using interviews and qualitative data analysis. The results of this study are that the existence of customary criminal law within the scope of Indonesian criminal law is very necessary because not every act if positive criminal law is used will take a long time, while customary criminal law is faster to resolve because it uses the local customary law system so that it should Customary criminal law must be used as Indonesian criminal law.

PERAN HAKIM DALAM PENEGAKAN RESTORATIF JUSTICE MELALUI HUKUM PIDANA ADAT

Article 18B paragraph (2) of the Constitution of the Republic of Indonesia provides recognition of laws that live and develop in society. One of the law enforcement officers who are given the authority to explore the values that live in the community, namely the Judge as regulated in Article 5 paragraph (1) of Law no. 48 of 2009 concerning Judicial Power. The values that live and develop in the community or better known as customary criminal law can be a way for judges to carry out restorative enforcement, so the role of judges is needed in assessing and considering the facts of case settlement outside the trial. This study aims to determine and analyze the role of judges in the enforcement of restorative justice through customary criminal law. This article is a normative legal research using a statutory and conceptual approach. The results of the study show that judges are facilitators and catalysts in the enforcement of restorative justice through customary criminal law in order to find a satisfactory solution to all parties as an effort to make peace between victims and defendants through customary criminal law that occurs outside the trial. Article 18B paragraph (2) of the Constitution Jo. Article 2 paragraph (2), Article 3 paragraph (2), Article 5 paragraph (1) of Law no. 48 of 2009 concerning Judicial Power and Article 5 paragraph (3b) of Law no. 1 of 1951 concerning Temporary Measures for Organizing Unitary Powers and Procedures for Civil Courts can be used as the basis for the application of customary criminal law as one of the efforts to enforce restorative justice.Judges as facilitators and catalysts in the enforcement of restorative justice through customary criminal law in order to find a satisfactory solution to all parties as an effort to make peace carried out by victims and defendants through customary criminal law that occurs outside the trial. Article 18B paragraph (2) of the Constitution Jo. Article 2 paragraph (2), Article 3 paragraph (2), Article 5 paragraph (1) of Law no. 48 of 2009 concerning Judicial Power and Article 5 paragraph (3b) of Law no. 1 of 1951 concerning Temporary Measures to Organize Unitary Powers and Procedures for Civil Courts can be used as the basis for the application of customary criminal law as one of the efforts to enforce restorative justice.

Perspective on regulation of caning in the preparation of the criminal law code (KUHP) in the future

This writing aims to understand the reality of norms regarding the regulation of caning in qanuns or local regulations in the Province of Nanggroe Aceh Darussalam, then to explain how the weaknesses and advantages of regulation of caning as positive law, then to examine the perspective of regulation of caning in the Book of Laws Penal Code (KUHP) in the future as one type of alternative punishment that can be imposed by judges. As for the formal criminal law, it is regulated in the provisions of the Governor of Aceh Regulation Number 10 of 2005 concerning Technical Instructions for Implementation of the Caning Law. This caning punishment is felt to be able to deter the convict because it creates a greater embarrassment effect, resocializes the convict in society and is expected to be able to reduce the crime rate. Caning is a type of punishment that is physically painful. The emergence of many cons regarding its existence because the punishment of caning is considered to tend to degrade human dignity and it is everyone's right to be free from torture. Article 1 paragraph (3) provides a strong legal basis for unwritten laws that live in society regarding the application of customary criminal law. This is solely to fulfill the sense of justice that lives in a certain society. Whereas Article 1 paragraph (4) places caning as a source of material law. So the judge has the authority to multiply the laws that live in society and pass a criminal sentence based on his convictions.

Customary criminal law policy on domestic violence settlement through restorative justice

Customary criminal law policy on domestic violence settlement through restorative justice

Countermeasures Model of Village Fund Corruption Through Adat Criminal Law Approach and Local Wisdom in West Sumatera

Corruption in Indonesia has its own characteristics. Corruption crimes committed at the village level have caused losses to state finances. Countermeasures against corruption in village funds are required to be effective and firm, in order to be able to resolve and to reduce the number of corruption in the future. This paper discusses the pattern of corruption in West Sumatra, especially in the cities of Solok and Pariaman, and discusses the prevention model used against corruption. The methodology used to answer these problems is normative juridical research. The results of the study found that the pattern of corruption tended to vary in each region, such as double budget, mark-up, unilateral withdrawal of nagari funds by nagari administrators. However, there is a pattern that is always found in every case, namely not making a deposit of tax collection results, the tax money is intentionally not deposited and used for personal interests which causes state financial losses. Furthermore, countermeasures are taken repressively using Indonesian criminal law, as well as preventively by establishing a nagari regulation that uses a customary criminal law approach. West Sumatra has its local wisdom that is still alive and well maintained, even the community respects customary criminal law more than positive law, therefore preventive efforts by using the customary criminal law approach are expected to be able to create nagari that are free from corruption. In an effort to prevent corruption of village funds and Village Fund Allocation (ADD) by village officials, the government of Nagari Situjuah Batua, Situjuah Limo Nagari District, Lima Puluh Kota Regency, West Sumatra, made legal rules based on customary law. The regulation is stated in the Situjuah Batua Nagari Regulation Number 8 of 2019 concerning Prevention of Corruption, Collusion and Nepotism Based on the Salingka Nagari Customary Law

HUBUNGAN HUKUM PIDANA ADAT DAN FILSAFAT HUKUM

The purpose of writing this scientific paper is to explain and analyze the relationship between customary criminal law and legal philosophy with normative juridical methods. The existence of additional criminal provisions in the Draft Criminal Code Draft in the form of customary criminal law, the study sees from the philosophy of law in the form of an in-depth and speculative study that customary criminal law which is juridically not recognized as positive law because it does not meet the four requirements for recognizing customary law from an indigenous community unit as a positive law so that it is found that customary law in its field is broad.

Formulation of Customary Criminal Law in Future Criminal Code and Legal Enforcement in Indonesia

The pros and cons were debated in limiting national legal substance with full recognition of Customary Criminal Law in the bill of Criminal Code and its future enforcement. On the other hand, there are arguments against the inclusion of Customary Criminal Law in the Criminal Code and the resulting disparities in legal enforcement caused by some Judges’ ignorance of judging customary criminal cases settled with the imposition of customary sanctions, which resulted in an unjust situation. This article aims to serve as a legal academic framework for establishing, identifying, and analyzing the formulation of Customary Criminal Law into the Indonesian Criminal Code, as well as to contribute to the discussion of judges’ roles in sentencing customary criminal cases, which they should determine and judge based on customary law. This article demonstrated the use of normative legal research in conjunction with statutory law, legal conceptual, and philosophical approaches to law. This article discovered that: first, several issues concerning the formulation of Customary Criminal Law into several national Bills of Criminal Code were debatable; second, it also cannot be enacted due to conflicting contexts with Criminal Law principles, unwillingness, and an ambiguous law-making process. Furthermore, the prospect of including the Customary Criminal Law in the Bill of Criminal Code is based on various justifications and legal needs that reflect the diverse local genius that still exists and adheres to Pancasila law principles. Additionally, it relates to a proposed new paradigm that Judges and other legal enforcers should adopt when enforcing Customary Criminal Law in any criminal customary case.

Penerapan Asas Legalitas dalam Penjatuhan Sanksi Pidana Atas Masyarakat Adat

In Indonesian, the main source of criminal law is in the Criminal Code and other Criminal laws and regulation. However, it is possible that customary law is considered as the source of law with certain limitations. This study aims to determine and analyze application of criminal sanctions to indigenous people and relevance of the legality of criminal law to customary law sanctions. The methodology used is juridical normative research method using a statutory and conceptual approach. With this research, the finding or conclusions are obtained that application of sanctions to customary law communities is recognized by several communities, and they believe that the customary court is a legal system that is still used by some indigenous peoples, and stipulation of customary criminal law sanctions is often not in accordance with the principle of legality which based on the principle and norms of criminal law as stipulated in the revisions of Article 1 Paragraph (1) of the Criminal Code. Therefore, in conclusion, the application of legality principle in imposition of criminal sanction to customary society still benchmark the customary law within the society itself.

Sanksi Pidana Adat terhadap Pelaku Tindak Pidana Melarikan Anak Perempuan Dibawah Umur di Desa Selat Kabupaten Batanghari

Special customary law of customary criminal comes from the custom of the community so it is referred to as the law born from below. Customary law as an unwritten law is the basis in determining good and bad behavior in a particular traditional society. Customary law, especially customary criminal law, has certain sanctions if one or more members of the traditional community commit irregularities or actions that are not in accordance with the norms and rules of decency (Adat Law). Article 332 of the Penal Code is understood to be taking away an immature woman with a view to mastering it, by our society is often associated with the term eloping. Eloping itself when it is interpreted simply is between a man and a woman who performs marriage without being approved by his parents or guardians. Taking away an underage woman or child abduction is again widely talked about by the public. Cases of fleeing underage women are spread almost all over Indonesia, our concerns are becoming even greater because the victims of child abduction are the majority of underage girls. To investigate, investigate and dismantle the chain of cases that are quite complicated it takes "extra energy and spirit" because of the problems of unemployment, poverty, education, gender inequality, patriarchy culture, as well as the lack of rule of law, public awareness, and the role of the authorities in addressing the problem.

Customary criminal law in the Eastern of Indonesia: the special autonomy Province of Papua

Autonomy is often seen as an institutional instrument to manage sub state nationalist conflict. Its implementation is also a key in determining its impact on conflict. After the reform period 1999 “Autonomy and Decentralization” in Indonesia are widely welcomed. While Papua is an inseparable part of special autonomy in Indonesia. Papua as a former Dutch territory which was later handed over to Indonesia has many advantages, both in terms of culture, customary law and natural resources. But on the other hand, the fact is that the indigenous Papuan people does not agree to join as part of Indonesian territory. This rejection was accompanied by separatist actions based on their interest mentioned in the memorandum for Papuan independence. This research is the first to aim to measure whether the special autonomy given to Papua has been effectively carried out in an effort to defend Papua as a part of Indonesia. Second, in the application of this special autonomy related to the existent of customary criminal law in papua. The research used normative legal research by statute approach, the data collected through library research and also analysed used descriptive qualitative. So it is concluded that the application of the special autonomy given to Papua has a big impact on democracy in Indonesia, as well as the Papua regional government given specialization in managing its regional potential. Although there are still problems in its implementation.

DELIK ADAT DALAM PERSPEKTIF MASYARAKAT HUKUM ADAT KABUPATEN ROKAN HILIR

Customary law is original Indonesian law that is not written in the form of the Republic of Indonesia law, which contains religious elements. From this word, it can also be said that the Customary Criminal Law is original Indonesian law which is not written in the form of an invitation containing religious elements, followed and obeyed by the community continuously, from one generation to the next. Violation of the rules and regulations is seen as causing shocks in society. Therefore, for the offender who is given customary sanctions, the community corrects custom or customary obligations through their customary officials.The discussion on customary law (including criminal law / customary offenses) is closely related to the current condition of the prevailing law in Indonesia (ius constitutum) which has legal pluralism. Legal pluralism can be implemented as the existence of more than one legal system that is jointly in the same social field. In the area of legal pluralism, on the one hand there are State laws (laws), and on the other hand, unwritten people's laws (including customary law) are still alive and well in tune with the development of the indigenous peoples themselves. The people in Rokan Hilir Regency (Rohil) are known to be still strong in holding customary teachings, culture and have customary laws that need to be observed in enforcing Adat offenses. Adat Rokan Hilir developed and developed in the community.

TINJAUAN FIQIH JINAYAT TERHADAP PELAKU ZINA MENURUT KITAB UNDANG-UNDANG SIMBUR CAHAYA

In formal and material law, Simbur Cahaya as a law regulates the sanctions and the application of sanctions to adultery offenders in the context of customary criminal law. Inseparable from the customary criminal law in Simbur Cahaya, formal law and material law can be studied and analyzed and analyzed from the perspective of Islamic criminal law / Fiqh Jinayah law. The problems raised in the focus of this study are: (1). How are the sanctions for adultery perpetrators by Pasirah (as an implementation of the Simbur Cahaya Book)? (2). How is the Fiqh Jinayat Review of Adultery Perpetrators According to the Simbur Light Book? This research was conducted using normative juridical legal research methods or literature analysis, the type of data used is qualitative data. The data source used in this study is secondary data obtained from literature studies, which are then processed and analyzed by content analysis in order to obtain a conclusion.
 Based on the research results that legally the customary sanctions in the criminal act of adultery in Simbur Cahaya are in the form of a certain amount of fines in addition to the sanctions on marriage and sanctions for mbasuh hamlet. While the application of the formal law appears to be closer to the current form of justice, it is just that there are some differences in the customary court process. As seen from the Fiqih Jinayat, the material law is not in accordance with the Fiqih Jinayat textually, but in the perspective of maqashid al-syari'ah the punishment of fines, marriage, and village cleaning on adultery in the Simbur of Light is contextually not contradicting with Fiqih Jinayat and is classified as a finger. ta'zir is a type of ta'zir garamah (ta'zir fine). Whereas the review of Fiqih Jinayat in formal law or the customary justice system in Simbur Cahaya is not against Islamic law although it is slightly different in the process from the jinayat court at the time of Rasulullah SAW because in Islamic criminal law there is not too much emphasis on the standard form of formal law or the jinayat judicial system. itself.
 Keywords: Maqashid Al-Syari’ah, Customary sanctions, Simbur Cahaya, Adultery

Customary Law Existency in The Modernization of Criminal Law in Indonesia

Customary law is defined as assets owned by the Indonesian nation and developing in society. However, the existence of customary laws is often questioned to what extent these laws can be applied. In several criminal law cases in Indonesia, several regions still use the customary law system as an alternative to decisions because its role in law enforcement is quite dominant. This study aims to identify the existence of customary law as a modernization of criminal law in Indonesia. This study used a descriptive analytic method with a normative and empirical juridical approach. The data used are secondary data and primary data. The results show that the customary law can be used as a basis of law for developing new criminal laws that are acceptable to the society. Indonesian customary criminal law, which is divided into numerous customary law units, represents the Indonesian nation's original culture, which was once governed by Islamic law. Customary law is very relevant as a consideration for Indonesian criminal law reform, especially in the formulation of the Criminal Code (KUHP).

Penyelesaian Tindak Pidana Perzinahan dalam Hukum Adat di Kabupaten Batanghari

Customary criminal law or customary violation law are customary law rules that regulate events or wrongdoing that result in disturbing the balance of the community so that it needs to be resolved (in law) so that the balance of the community is not disturbed. One of the areas that still applies customary law as a rule that is obeyed. In social life, law and society are two things that cannot be separated. Therefore we need a rule of law to regulate social life in order to achieve public order. These legal rules are either written or unwritten. Applicable nationally and regionally, in the field of public law and private law. Customary violations are rules of customary law that regulate events or wrongdoing that result in disturbing the balance of the community so that it needs to be resolved (in law) so that the balance of the community is not disturbed. One of the areas that still applies Customary Law as a rule that is obeyed by the community, as happened in Batanghari Regency, the community still respects customary law in solving cases such as the crime of adultery

Traditional Criminal Law Existence in the Settlement of Criminal Action in the Environmental Field in Indonesia

Many cases of environmental pollution and illegal logging have caused alarming damage to the environment. In the Law regarding Environmental Protection and Management, tools to protect the environment have been regulated. One of which is the application of criminal sanctions, but in Indonesia, some laws live in society, one of which is customary criminal law which can also solve criminal acts in the environmental sector. This research aims to analyze the existence of customary criminal law in the settlement of crimes in the environmental sector. This research is legal research with normative juridical research. The results of this study will be presented in descriptive form. The results showed that Hulsman said the criminal justice system had caused suffering because it could not work according to its objectives and did not carry out the principle of accountability. This judicial system had innate defects. In settlement of criminal acts in the environmental sector, examples of customary criminal law are the settlement of fish poisoning cases committed by some Paya Village Village residents. They use fish poison from plants (tuba), Lannet in the form of flour, Bistox in liquid, and Decis, which is liquid.

Socio-Legal Study of Community Participation in Restorative Justice of Children in Conflict with the Law in Indonesia

The state has the obligation and authority to protect children. This is regulated in Article 28 of the 1945 Constitution of the Republic of Indonesia, that everyone has the right to just recognition, guarantee, protection, and legal certainty as well as equal treatment before the law, namely that the State is obliged to protect every citizen regardless. The problem in this paper is how is the socio-legal study of restorative justice in the Juvenile Criminal Justice System in Indonesia. The method used in this research is a socio-legal research approach. This study found that the customary institution in Padang, West Sumatra is factually recognized in its existence in the customary criminal law of the Dua Puluah Customary Law. Moreover, the results showed that particularly in regulating the provisions of the material criminal law, in the Salapan Law (eight), and the Kanayatn Dayak community. implementing the restorative justice mechanism is resolved by deliberation and is family in nature in a Barukupm Adat forum, which involves all parties, both from functionaries, children of perpetrators and their families, victims and their families as well as witnesses who know the case, and pay attention to the rights of community members within the boundaries the agreed boundaries to be obeyed, based on the values and norms that exist in society. This study offers relevance in the context of non-legal settlement in cases of restorative justice in cases of children in conflict with the law in Indonesia. This study underscores expediency to provide greater space for customary entities to resolve children's cases non-legally and to increase community participation in the resolution of legal cases involving children.ia.

The Black Flame (part two): Snyman’s Criminal Law

This is the second of a trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled The Black Flame) reviewing Snyman’s Criminal Law. The decision to commence working on the review was made after encountering the unprecedented section on African customary law in the latest edition of the book. This is a major achievement for this work that promises an exciting change of direction. This paper focuses on four areas in which the book can proceed further into this new direction. These include: (i) a comprehensive clarification of the underlying jurisdictional complexity within which South African criminal law (as inheritor of Roman-Dutch and English law) currently finds itself; (ii) the comparative nature and source of Snyman’s preferred arrangement of his general principles of criminal liability; (iii) the brief account of legal history in the introductory section; and (iv) the section on African customary criminal law. The overall argument made is that a northbound-gazing criminal law scholarship makes comparative criminal law between South Africa and European jurisdictions virtually impossible. The next edition of Snyman’s Criminal Law will be served better by a comparative focus on African jurisdictions and less on Europe.

ANALISIS HUKUM PIDANA ADAT NIAS DALAM MENYELESAIKAN KASUS PENCURIAN

The formation of customary law and customary sanctions is inseparable from the result of a violation or crime which according to customary law is seen as a crime that can damage the sense of comfort and sense of peace in social life, so that the perpetrators and offenders are subject to customary sanctions which are a retribution or lesson for the perpetrator of crime so as not to repeat it again. Customary law was applied by the Dutch to the Bumi Putera Group with the assumption that customary law was in accordance with the mystical atmosphere of the Indonesian people at that time, one part of customary law is customary criminal law. Customary criminal law today is still alive in the community, even though the Criminal Code is valid as a positive law.

DEVELOPMENT OF PERSPECTIVE CRIMINAL LAW INDONESIAN NOBLE VALUES

The existence of criminal law is to protect and maintain central values insociety. As an independent nation, the applicable criminal law should be in accordancewith the noble values that live and develop in Indonesian society. KUHP (WvS) is aproduct of western colonial law, of course it carries the spirit of colonialism,individalism, and liberalism that is not in accordance with the noble values of anindependent Indonesian nation. The development of Indonesian criminal law must bebased on Indonesian philosophy, spirit, and values, in terms of ideology (Pancasila),religious/religious, social, political, economic, and cultural aspects that live anddevelop in society (customary law). Nor should it ignore international developments,because the Indonesian state is part of a civilized international community. Colonialinheritance criminal law that adheres to the teachings of positivist legal law, must beintegrated with the teaching of legal historism which is a legal understanding that isconsidered appropriate and adhered to by the people of Indonesia, so that in Indonesiathere is an unwritten criminal law (customary criminal law).

Ролята на българското обичайно наказателно право след Освобождението

After the Liberation, the application of the Bulgarian customary criminal law was limited. It is a source of our criminal law along with the Turkish Criminal Law. Bulgarian customary criminal law makes certain adjustments in the Bulgarian legislation. The Bulgarian legislature also considers the rules of customary law.