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LAW, CRIMINOLOGY & CRIMINAL JUSTICE | RESEARCH ARTICLE
COGENT SOCIAL SCIENCES
2024, VOL. 10, NO. 1, 2301634
Genuine paradigm of criminal justice: rethinking penal reform
within Indonesia New Criminal Code
Faisal, Andri Yanto, Derita Prapti Rahayu, Dwi Haryadi, Anri Darmawan and
Jeanne Darc Noviayanti Manik
Faculty of Law, Bangka Belitung University, Bangka Belitung, Indonesia
ABSTRACT
This study examines the harmonization of criminal law with societal socio-cultural
aspects, elucidating the pursuit of substantive justice at normative and theoretical
levels. Achieving concordance between legal norms and community culture necessitates
comprehensive law reform – an imperative alternative, particularly for nations with
legal histories shaped by foreign legal traditions. Focusing on the evolution of
Indonesian criminal law post the enactment of the New Criminal Code, this research
unveils fundamental shifts in values, norms, and paradigms. The transition from colonial
legal substance to a modern, authentic framework is evident in articles implicitly
prioritizing substantive justice, aligning with Indonesia’s philosophy and socio-cultural
values. Over time, Indonesia has phased out colonial law, integrating living law into the
national legal fabric. The paradigmatic shift, aimed at infusing Indonesian law with a
distinctive national character, presents conditions, advantages fostering substantive
justice, and challenges in formulation and implementation. Despite complexities, the
63-year process of drafting the New Criminal Code has yielded profound results,
enhancing the legal system. This transformative journey signifies a deliberate departure
from colonial legal paradigms, embracing a framework resonating with Indonesian
values. The shift underscores Indonesia’s commitment to substantive justice and
resilience in overcoming challenges tied to legal reforms.
IMPACT STATEMENT
The journal article, ‘GENUINE PARADIGM OF CRIMINAL JUSTICE: RETHINKING PENAL
REFORM WITHIN INDONESIA NEW CRIMINAL CODE’, holds vital public interest. As
Indonesia undergoes substantial legal changes, this research explores the potential
impact of the new criminal code on individual rights and the justice system. This work
serves legal scholars, practitioners, and the general public alike. It advocates for
transparency, fairness, and human rights in the criminal justice system, fostering
informed discussions among policymakers, legal experts, and society at large. The
article’s relevance extends beyond Indonesia; it contributes to the global dialogue on
penal reform and human rights. By examining the Indonesian context, it offers insights
that can benefit nations grappling with similar justice system challenges. In an era of
evolving legal systems worldwide, this article plays a crucial role in promoting informed
discourse and shaping the future of criminal justice in Indonesia and beyond.
1. Introduction
The reification of national law reform, as an endeavor to establish the relevance of normative products
to community culture, serves as a strategic agenda in disseminating Indonesianism. The historical trajec-
tory of being under Dutch, British, and Japanese rule since the 16th century has witnessed the transfor-
mation of the ‘Indonesian nation’ from a diverse array of small feudal kingdoms into a unified entity
forged in solidarity amidst suffering and subjected to legal engineering during the colonial period
(Wirabakto, 2022). The pivotal role of customary law, coexisting with Hindu-Buddhist and Islamic law for
© 2024 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group
CONTACT Faisal progresif_lshp@gmail.com Faculty of Law, Universitas Bangka Belitung, Kampus Terpadu UBB St, Merawang District,
333172 Bangka Belitung, Indonesia
https://doi.org/10.1080/23311886.2023.2301634
This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which
permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. The terms on which this article has been
published allow the posting of the Accepted Manuscript in a repository by the author(s) or with their consent.
ARTICLE HISTORY
Received 10 May 2023
Revised 28 December
2023
Accepted 30 December
2023
KEYWORDS
Genuine paradigm;
criminal justice; penal
reform; criminal code
REVIEWING EDITOR
Heng Choon (Oliver)
Chan, Department of
Social Policy, Sociology,
and Criminology,
University of Birmingham,
Birmingham, UK
SUBJECTS
Environmental Law
- Environmental Studies;
Historical Criminology
- Criminology Law;
Jurisprudence &
Philosophy of Law; Law &
Society; Criminology and
Law; Race and the Law;
Philosophy of Law; Social
Work Law
2 FAISAL ETAL.
more than a millennium, was marginalized due to the principle of concordance enforced by the Dutch
government (Kuswardani et al., 2022). Consequently, the evolution of Indonesian legal culture ensued,
mirroring Dutch European-Continental law in various domains, including criminal, civil, administrative,
and procedural law (Arifin & Primadianti, 2023).
The political transition of law, manifesting the interest in producing substantive justice and national
character, unfolded in two significant momentums since independence. Firstly, the proclamation of 17
August 1945, and the subsequent constitutional ratification of the 1945 Constitution successfully estab-
lished, de facto, a distinct state and legal system – the Indonesian legal system (Utama, 2021). However,
to ensure the stability of the nascent state, the government found it necessary to temporarily adopt
colonial laws until new national laws could be established. Secondly, the political reform in 1998, mark-
ing the end of the New Order authoritarian era and initiating what was then termed ‘regulatory reform’,
aimed at updating the national legal system and advocating for a paradigmatic shift away from the
entrenched colonial legal framework within the national legal system (Aspinall & Fealy, 2010).
In contrast to the political transition of law, a paradigmatic shift in Indonesian criminal law has not
transpired since before the era of independence (Tongat, 2022). The Indonesian Criminal Code is a deriv-
ative of the Wetboek van Strafrecht Voor Nederlands-Indië (WvS-NI) imposed by the Dutch colonial gov-
ernment in 1918 (Wirabakto, 2022). Apart from lagging behind societal developments, the WvS-NI was
fundamentally rooted in a colonial paradigm aimed at undermining the Indonesian nation for the benefit
of Dutch colonialism and imperialism during that era (Najih, 2018).
Crucially, the WvS-NI was constructed based on the Penal Code in Continental Europe, which reflected
the values of Western societies. Conversely, Indonesia, as an Eastern nation, espouses different values (Arifin
& Primadianti, 2023). The disparity in value content between the Indonesian Criminal Code and its populace
has resulted in a perceptible gap in the sense of justice and a neglect of genuine local wisdom within
national law (Butt & Lindsey, 2020). Since 1963, the ongoing codification of genuine values aimed at shifting
the paradigm of colonial criminal law in Indonesia culminated in December 2022 with the completion of the
New Criminal Code, embodying a complex array of ideas towards substantive justice (Yusliwidaka et al.,
2023). The primary impetus behind the enactment of the new Criminal Code was the intrinsic incorporation
of national values as a replacement for the colonial character in the national legal system.
The genealogy of criminal law thought is constructed within three interrelated domains – paradigm,
substance, and legal technicalization (Wirabakto, 2022). The critique of these three domains represents a
comprehensive assessment of criminal law thought in the Continental European tradition, with a holistic
comparison to Indonesian criminal law thought (Nurdin & Turdiev, 2021). Firstly, the paradigmatic char-
acter in WvS-NI boils down to legism, reflecting a legal orientation adrift from unwritten norms as the
main and pure source of law. Nuances of legism limit the notion of ‘law’ to a formal order of norms,
stand on the authorization of the state, and generalize the subject of law to be presumed to know the
written law (presumptio iures de jure). Normatively, legism is standardized in Article 1(1) WvS-NI, expressly
stating: ‘No act shall be penalized unless the strength of the criminal laws in existing legislation existed
when the act was performed’ (Mallarangan, 2021). This principle has historical roots in the teachings of
Friedrich von Feuerbach’s logical positivism, encapsulated in the famous adagium: ‘nullum crimen sine
poena legali’ (Nurdin & Turdiev, 2021).
Secondly, the substance domain, which propounds the legism paradigm, is constructed with criminal
law values in WvS-NI that have positivistic nuances. The values in question include legal purification
(written law as the sole source of punishment), deterministic, objective-atomistic, dualistic, autonomous,
and reductionist. In a historical perspective, the values characterizing the substance of WvS-NI are con-
structed according to the Cartesian-Newtonian concept and Auguste Comte’s positivism (Lacerda, 2009).
Within the norm, the WvS-NI articles categorize criminal offenses according to offenses and offenses,
with each type of offense having a logical consequence on conviction. The substance of WvS-NI does
not accept the infiltration of social aspects as an alternative to solving criminal acts, making it reduction-
ist and pure (Diala, 2017). In the pure theory of law, the sterilization of criminal law from meta-juridical
aspects is an urgent form of legal rationalization to ensure certainty and enforcement authority, creating
social order (Dziadzio, 2021).
Thirdly, the domain of legal technicalization serves as the operational aspect through which the par-
adigm and substance of values are realized in society. The technicalization of Indonesian criminal law in
COGENT SOCIAL SCIENCES 3
WvS-NI distinctly prioritizes the aspect of certainty, as outlined in Article 1(1). Aligned with the Continental
European tradition of the classical era, judges in WvS-NI are not afforded leeway for legal innovations
but are rather functionalized as conduits of the law. The emphasis on legal certainty aspects in WvS-NI
confines Indonesian law enforcement, leaving it unable to transcend the repercussions of positivism,
such as the restricted capacity of judges to deviate from the law to achieve substantive justice (Adawiyah
& Rozah, 2020).
Criticism of the three characterization domains in the genealogy of thought that constructs WvS-NI
points to the inherent incompatibility of all three with the culture and perspective of the Indonesian
nation concerning criminal law enforcement. Indonesia, as a multicultural nation, derives its genuine
thought from two sources of zeitgeist – customary law and religious law, predominantly Islamic Sharia
law (Tongat, 2022). The adoption of the paradigm, values, and technicalization of Continental European
law through WvS-NI is deemed a ‘historical imperative’ that not only disregards social reality and genuine
thought but also precipitates a crisis of substantive justice and expediency. The misalignment between
Indonesian thinking and Continental Europe necessitated a transformation of values. The Indonesia New
Criminal Code provides a meeting ground for these enhancements, facilitating a paradigmatic transition
that encompasses all aspects of the genealogy of Indonesian criminal thought.
2. Research method
In this research, we employ a multi-faceted methodology to delve into the complex issues surrounding
the genuine paradigm of criminal justice and the imperative for penal reform within the framework of
Indonesia’s new criminal code. Our study commences with an extensive review of legal documents,
including the newly enacted Criminal Code (Law Number 1 of 2023), to acquire a comprehensive under-
standing of the legislative changes. Simultaneously, we conduct a systematic literature review of reputa-
ble law journals, academic papers, and legal literature to identify the theoretical underpinnings and
practices in criminal justice and penal reform. By synthesizing existing knowledge, we identify theoretical
frameworks that can shed light on the challenges and opportunities presented by the new criminal code
in Indonesia.
Furthermore, qualitative research methods are employed to gather empirical data. A structured set of
questions and discussion instruments are administered to a diverse sample of legal professionals, includ-
ing judges, prosecutors, defense attorneys, and legal scholars, to assess their perspectives on the practi-
cal implications of the new criminal code and the need for penal reform. These questions allow for a
systematic analysis of the stakeholders’ viewpoints and contribute valuable qualitative insights to our
research. By triangulating legislative analysis, literature review, and qualitative data, this research endeav-
ors to provide a comprehensive analysis of the genuine paradigm of criminal justice within Indonesia’s
evolving legal landscape. This methodology aims to offer critical insights into the prospects and chal-
lenges of penal reform, facilitating a theoretically evidence-based discussion within the broader discourse
on criminal justice reform in Indonesia and its alignment with international norms.
3. Result and discussion
3.1. Values in law: how they inuence and shape rules
Law, at its fundamental level, can be conceptualized as a superstructure shaped by values (Henham,
2022). These values offer an ideal and rational representation of justice and the intentional organization,
exercise, and control of power at both public and private levels (Tamanaha, 2010). The expression of
values is not confined to formal law but is also evident in people’s expectations, behaviors, actions, and
culture (Daci, 1997). Values are cultivated from the accumulation of thoughts about truth and goodness,
manifesting as a cultural heritage maintained and concretized within norms (Witteveen, 2003). However,
this concept does not imply that values, or their associated laws and principles, are mere reflections of
cultural heritage. Rational values, furthermore, possess the resilience to transcend cultural boundaries,
making the relevance of truth consistent for each individual beyond the confines of cultural origins, such
as human values. In the perception of modernity, which blurs the boundaries of cultural localism, values
4 FAISAL ETAL.
accumulate at the level of the nation and state, allowing the laws in force in a country to be interpreted
as a reflection of the values of its legal subjects, characterized by accumulation, eclecticism, and gener-
ality. Moreover, modernity introduced egocentric universalism and later proved inhospitable to local val-
ues. Cultural acculturation does not inspire the establishment of norms; rather, the acculturation of norms
alienates cultural values themselves.
Law, in its creative and flexible nature, employs values in various ways and forms (Stein, 2010). Values
serve as a material source in contemplating the formation of norms to prevent arbitrary, capricious, or
unreasonable power (Emilia et al., 2022). The subsequent value acts as a barometer in identifying the
needs of the community, influencing the direction of law administration. This accumulation of values is
referred to by Hans Kelsen as grundnorm, the abstraction of values at the highest level within the norm
hierarchy (Celano, 2000). From this perspective, it is evident that the primary function of value is as a
link between legal systems and societies, constituting the essence of the material aspect of the purpose
of the law itself. The formulation of norms often requires arguments known as ratio-legis, with the
essence of value providing a fundamental supply to the existence of these ratios.
An important principle of balance must be formulated in this context. The legal system and society
cannot be constructed or sustained solely by referring to values expressed in general and abstract terms
(Arifin & Primadianti, 2023). Nevertheless, the two cannot be harmonized if built solely on strict textual
and normative rules. Instead, balance must be achieved through the linearity of rules at the levels of
values, principles, precepts, and norms. An appropriate balance must recognize that norms and principles
must serve as moral standards, measuring legal flexibility and accommodating society’s concept of val-
ues. If achieved, this balance can identify the dangers arising from the absence of adequate rules or the
existence of rules incongruent with the legal needs of society, such as rules adopted from other cultures.
The attainment of substantive justice in the process of law enforcement within a nation necessitates,
first and foremost, ensuring a balance between norms and community values (Schmid, 2003). Equilibrium,
in this context, implies that the entire legal structure, from the abstract to the most concrete, follows a
cohesive ‘line of command’, with the grundnorm serving as the source for concrete norms (Celano, 2000).
The creativity and flexibility inherent in legal formation must guarantee the preservation and embod-
iment of grundnorm values at the level of technical norms, ensuring their continued authenticity.
Consequently, ideal and rational laws should be independently crafted by making the values of society
the primary source of intellectual wealth (Acciaioli, 2007). Adopting the values of other established soci-
eties is not a viable alternative, as it inevitably leads to imbalances and reduces justice to proceduralistic
fairness. To maintain the concretization of these values, a nation must possess its own ‘genuine paradigm
of law’.
A reductive and partial perspective significantly hampers, and may even disrupt, the process of form-
ing rechtsidee (fundamental values). Such a perspective is likely to be insensitive to the values prevalent
in society, resulting in a flawed formulation of norms. The achievement of substantive justice becomes
exceedingly challenging when left to the formulation of inadequate norms.
3.2. Genuine paradigm of criminal justice
The Oxford Dictionary defines criminal justice as the system of law enforcement directly involved in
apprehending, prosecuting, defending, sentencing, and punishing those suspected or convicted of crim-
inal offenses. Criminal law enforcement, being the most fundamental aspect of the legal order, is intri-
cately linked to considerations of human justice. Lawrence M. Friedmann, in his work, delineated the
achievement of justice in law enforcement across three domains: the substance of legal norms, law
enforcement structures, and community legal culture (Handayani, 2012). The consistency of Lawrence M.
Friedman’s three legal domains in maintaining a balance of values and norms must be facilitated by the
paradigm of criminal justice (Friedman, 2019). Like the value function that connects legal systems and
societies, the paradigm of criminal justice serves as a link between values and norms in creating a bal-
ance of law enforcemen Similar to the value function that connects legal systems and societies, the
paradigm of criminal justice acts as a link between values and norms in creating a balanced approach
to law enforcementt (Daci, 1997). Furthermore, given that these values are genuine and extracted from
the legal culture of a nation and will be concretized in criminal law, the connecting paradigm must also
COGENT SOCIAL SCIENCES 5
be genuine. This concept is then referred to as the genuine paradigm of criminal justice. What does
this mean?
Thomas Kuhn developed an analysis of science that views it as far from the objective pursuit of
knowledge. In ‘The Structure of Scientific Revolutions’, Kuhn posited that science is characterized by a
commitment to a scientific paradigm (Joshua, 2014). Kuhn formulates the paradigm as a fundamental
image of what is the main problem of science at a certain time; normal science is a period of accumu-
lation of knowledge, and scientific work will inevitably give rise to new works that cannot be explained
by previous science or knowledge. The stage of crisis occurs when inconsistency (anomaly) increases and
can only be resolved with a scientific revolution. The paradigm consists of a set of shared beliefs among
a group of scientists about what the natural world is composed of, what counts as true and valid knowl-
edge, and what sort of questions can be asked, along with the procedures that must be followed to
arrive at the answers to these questions.
The criminal justice paradigm is formed as a crystallization of general truth values that have been
rationalized, reflecting cultural thoughts and principles towards the criminal concept of a nation as a
whole (Shari, 2022). Paradigm, as a cultural product and synthesis of thought in state life, has limitations
on its applicable relevance. This restriction is formed from the cultural origin and dialectic of thought
towards the reality of the society in which these values are explored (McCold, 2004). The criminal justice
paradigm developed in the culture of Continental European societies has disparities with the Anglo-Saxon,
Eurasian, and Middle Eastern paradigms. Therefore, the sovereign intersubjective reality in determining
the paradigm is the state as a national identity. Every nation has the right to determine and must have
its own criminal justice paradigm that is genuine and extracted from the values of the people living in
the country.
The paradigm plays a pivotal role in criminal law enforcement across three dimensions: substantively,
by guiding the formulation of legal norms; structurally, by providing a perspective for law enforcement
officials in implementing norms; and in legal culture, by shaping people’s perception of a sense of justice
and the achievement of legal objectives that are implemented substantively and structurally. Consequently,
the genuine paradigm, conceptually, represents an endeavor to explore the values of Indonesianism as
a ‘legal ideology’, and functionally, it strives to bring the sense of justice, expediency, and certainty into
a balance of normative and cultural dimensions.
The genuity of the criminal law paradigm is a fundamental element that directly influences the sub-
stance and technical aspects in the creation of justice, expediency, and legal certainty holistically.
Paradigms determine value construction in the substance of norms and law enforcement, so the transi-
tion in the paradigmatic stage concerns an overall change of understanding of law nationally. With the
transition of the criminal law paradigm from Continental Europe to the genuine paradigm, Indonesia
presents a space for criminal law linearity with the sociological needs and understanding of the Indonesian
nationIn essence, the authentic paradigm of the Indonesian nation necessitates formulation grounded in
the evolving socio-cultural values inherent in Indonesian society. The adoption of foreign paradigms,
stemming from historical burdens, runs the risk of yielding a legal system not only prone to falling short
in attaining justice and utility but also of negating the existence of indigenous cultural values and wis-
dom integral to the Indonesian nation.
3.3. Previous indonesia’s criminal justice paradigm: a legacy of colonial history
The criminal justice paradigm of a nation is represented normatively in the criminal code and the crim-
inal procedure code. The criminal code law regulates the substance of the norms that are the basis for
sentencing, while the criminal procedural law determines the behavior, procedures, and actions of law
enforcement in enforcing these norms. In Indonesia, the penal code in force since independence is the
Wetboek van Strafrecht voor Nederlands-Indië (WvS-NI), which was drafted and ratified by the Dutch
Colonial government in Staatsblad No. 732 of 1915 and entered into force on 1 January 1918 (Butt,
2023). Substantively, the WvS-NI was adopted from the Wetboek van Strafrecht of the Kingdom of the
Netherlands and was rooted in the paradigmatic values of Continental European societies (Tongat, 2022).
After Indonesian independence on 17 August 1945, urgent needs arising from Dutch military aggres-
sion I and II in 1946–1948 and the lack of established national stability required Indonesia to adopt
6 FAISAL ETAL.
colonial laws that had been in force before. The enforceability of WvS-NI was affirmed by Article II of the
Transitional Rules of the 1945 Constitution and Law No. 1 of 1946 concerning the Regulation of the
Criminal Law, subsequently renamed as the Criminal Code (KUHP). Since 1958, the Criminal Code has
been officially declared valid throughout Indonesia in its current form (Najih, 2018).
Historically, the Criminal Code imposed in Indonesia is undeniably a legacy of colonialism. WvS-NI was
adopted based on the Royal Netherlands WvS, which had been in force since 1881, and the Kingdom of
the Netherlands WvS was prepared based on the Napoleonic Penal Code enacted in France since 1810.
The entire content, perspective, source of value, and procedural law procedures in the Indonesian
Criminal Code are extracted from the culture of Continental European society in the 18th and 19th cen-
turies (Meuleman, 2006). Therefore, the Indonesian Criminal Code, valid from 1918 to 2025, still adheres
to the concept of retributive justice that prioritizes retribution. Ironically, legal transformations in
Continental European countries have occurred, shifting the concept of retributive justice to a more mod-
ern one. The Netherlands Criminal Code of 1881 has undergone numerous changes and was last updated
on 27 August 2014, while Indonesia continues to use the same Criminal Code for 103 years.
The criminal law paradigm in the Indonesian Criminal Code creates a significant gap between norms
and culture, with limitations in the principle of legality. The nuances of Continental European positivism,
oriented towards achieving legal certainty, standardize criminal acts only within the scope of what is
explicitly regulated by law (Tamma & Duile, 2020). The penal values in the Criminal Code are formulated
from the culture of Continental European Christian communities, resulting in sharp cultural disparities
with Indonesian penal values rooted in Islamic law and customary law. This discrepancy leads to a reduc-
tion in the values of punishment and a true sense of justice. Furthermore, the influence of Continental
European values from the 17th and 18th centuries has left the substance of the Criminal Code with a
punitive tendency, still carrying the principle of retributive justice (Yolandika, 2022). In essence, the
enactment of the Criminal Code has bound Indonesian criminal law to the paradigmatic system of
Continental Europe, which was formed during the colonial era. While this enactment was the best option
during the independence era to avoid a legal vacuum, it has become problematic as Indonesia’s social,
economic, and political conditions have evolved.
The influence of legism values deeply rooted in the Continental European legal tradition is pervasive
and dominates normative nuances in WvS-NI as a derivative product of the French Penal Code. The
legism paradigm is implicit in Article 1 (1) WvS-NI, limiting the definition of criminal acts solely based on
written law. This paradigm characterizes the domains of substance, values, and legal technicalization in
a linear manner that cannot be improvised. In the substantive domain, the legism paradigm views law
as a procedural reality oriented towards the principle of legal certainty. Building on the principle of
legality in Article 1 (1), WvS-NI objectifies criminal acts into the categories of offenses and crimes, with-
out recognizing crimes beyond those stipulated in law (Tolkah, 2021). The substance of WvS-NI disre-
gards pluralist legal reality, thus becoming a constraining space with acute reductionism nuances. The
foreseeable consequences stem from the characterization of the legism paradigm in WvS-NI, leading to
Cartesian-Newtonian philosophy and Comte’s social positivism, both grounded in assumptions of sci-
entism applicable to the social sciences, including criminal law.
Moreover, the legism paradigm imposes a stringent procedural rigor on the legal technical domain
(Mallarangan, 2021). Procedural law, by constraining the creativity of law enforcement through limitations
on legal intrusions and judge-made discoveries, stands in opposition to the pursuit of substantive justice.
Judges are prohibited from analogizing, and the entire logical framework is constructed around the con-
finement of laws and regulations. The proceduralization of law enforcement results in mechanistic, deter-
ministic, and static enforcement patterns. The clash between the demand for a dynamic, situational
sense of justice and the cultural reality of a plural Indonesian society poses incompatible challenges for
the legism paradigm.
It is imperative to acknowledge, however, that the development of Indonesian criminal law from the
post-independence period until the amendments to the Criminal Code in 2022 witnessed several changes
in both the substantive and technical domains. Substantively, adjustments were made to articles in the
Criminal Code to align with the evolving needs of the community. Notably, 39 articles were removed
from the 1918 version of the WvS-NI, with some being reorganized into various other laws and regula-
tions. On the technical front, Indonesia enacted Law Number 8 of 1981 concerning the Code of Criminal
COGENT SOCIAL SCIENCES 7
Procedure, replacing the Herzien Inlandsch Reglement and Reglement voor de Buitengewesten adapted
from the Netherlands. Nevertheless, changes in substantive and technical aspects do not guarantee the
attainment of substantive justice when the paradigm serving as the foundation of a generic legal under-
standing remains constrained by the spatial limitations of legism-positivism. Hence, the changes repre-
sent a ‘partial improvement’, as they do not fundamentally alter the legal character.
Driven by the necessity to bridge the gap between legal norms and the socio-cultural dimension of
the Indonesian nation, which considers the historical aspects of WvS-NI as a colonial heritage product,
the appropriate domain for change is a paradigm transition. With a shift in paradigms, the overall under-
standing of law undergoes a radical transformation, complemented by changes in substance and legal
technicalization. These changes give rise to several new features in the Indonesian Criminal Code, guided
by two main orientations: alterations to the basic principles of criminal law legism and the inclusive
enrichment of Indonesian values.
3.4. Paradigm shift within penal reform: what really changes?
The reform of Indonesia’s criminal law was initiated in September 1963, concomitant with the proposal to
codify civil and commercial law (Tolkah, 2021). The decision to holistically revise the legal framework came
in response to the inefficiency of extending the lifespan of the Criminal Code through partial revisions to
achieve substantive justice (Lev, 1973). Prior adjustments to the Criminal Code, involving the excision of
articles since 1946, aimed to eliminate discriminatory provisions no longer aligned with Indonesian values.
In contrast to previous partial changes, the transformation of the Criminal Code was conducted
through comprehensive recodification, entailing the complete reorganization of its contents and the
introduction of entirely new norms. Recodification encompasses changes in two dimensions: the norma-
tive and paradigmatic dimensions. Normatively, alterations are evidenced by the preparation of 37 chap-
ters and 632 articles across two books – the first focusing on general rules and the second on criminal
acts. Indonesia’s New Penal Code redefines the distinction between and crimes as criminal offenses. The
increased number of articles, exceeding the old Criminal Code’s 569 articles, reflects the mission of con-
solidation and harmonization in Book I as an operator of modern criminal law. At the paradigm level,
changes in the Criminal Code carry the mission of promoting the cultural values of the Indonesian nation
as a source of orientative and substantive material law. The overall values normalized in penal reform
shifted the previous paradigm of criminal justice to the genuine paradigm of criminal justice. This shift
occurs with five main aspects.
First, decolonization of law by removing the nuances of colonialism and punitive nature from the old
Criminal Code inherited from colonial traditions. Decolonization requires a replacement paradigm, which
is then filled with the original values of the Indonesian nation with a corrective-restorative justice
approach, describes the objectives and guidelines of punishment and contains alternative criminal sanc-
tions. Second, democratization with active involvement of the community in drafting criminal law norms.
This engagement is in accordance with the Indonesian Constitution, legal considerations, and the
Constitutional Court’s decision on related articles that must be drafted with meaningful participation.
Third, consolidate criminal law while maintaining a number of provisions and thoughts in the old Criminal
Code that have ideal relevance to national values and needs, as well as updating and placing new for-
mulations in the codification of the Criminal Code. Fourth, harmonization of law carried out with the
principle of adaptation to respond to the development of modern legal needs, without prejudice to
living law. Fifth, modernization that replaces the classical philosophy of vengeance to an integrative phi-
losophy that considers aspects of deeds, perpetrators, and victims of crime.
The genuity of the new paradigm within the Indonesian Criminal Code, encapsulating the five aforemen-
tioned aspects, was introduced during the formulation period as the paradigm of the balance of Pancasila
values. The ideologization of nationality in Indonesia, encompassing socio-cultural pluralism, is consolidated
in five articles representing the Pancasila values that embody the collective outlook on life of the Indonesian
nation. These values, namely divinity, humanity, unity, democracy, and social justice, constitute the ideolog-
ical foundation. The equilibrium established in the Criminal Code reflects the implementation of Pancasila
as a legal ideology in Indonesia. In contrast to Continental European positivism and WvS-NI, criminal law
in Indonesia is perceived as an entity inseparable from values; it is not value-free but a condition
8 FAISAL ETAL.
perpetually intertwined with these values across all domains contributing to the creation of legal objectives
(Ergashev, 2021). Therefore, Articles 51–54 of the Criminal Code affirm the purpose of punishment, repre-
senting a concrete form of ideologization of criminal law applied with a balanced consideration of values.
This exemplifies the intrinsic beauty and authenticity of Indonesian criminal law.
Barda Nawawi Arief contends that the development of the New Criminal Code Concept is intricately linked
to the idea and policy of constructing a national legal system grounded in Pancasila as the aspirational values
of life. This implies that the reform of national criminal law should be motivated and oriented toward the fun-
damental principles of Pancasila, which inherently harbor a balance of values, ideas, and paradigms: (1) religious
morals (divinity), (2) humanity (humanistic), (3) nationality, (4) democracy, and (5) social justice (Rofiq etal., 2019).
Law and society share a profound relationship, as articulated by Brian Tamanaha, who posits that law
has a distinctive form of social life. Tamanaha introduces the Law-Society Framework, comprising two pri-
mary components. The first component encompasses two central themes: the notion that law serves as a
mirror reflecting society and the idea that the function of law is to uphold social order. The second com-
ponent is composed of three elements: custom/consent, morality/reason, and positive law (Tamanaha, 2010).
Criminal law and including the principle of legality, if it is to be called a science that can capture and
follow change, and does not ignore values in the ‘public sphere’, it must reflect the ‘general will’, and the
‘value system’ which is on the criteria of the idea of balance. Barda Nawawi Arief called the idea of bal-
ance as the basic idea to be realized in the concept of the New Criminal Code oriented to the ‘idea/
principle of balance’. The ideas of balance are divided into five, including the following:
1. The idea of a monodualistic balance between the interests of society and the interests of individuals.
2. The idea of balance between social welfare and social defence.
3. The idea of balance oriented to the perpetrator/oender and victim.
4. The idea of a balance between ‘legal certainty’ and elasticity/exibility, and ‘fairness’ A balance
between ‘formal’ and ‘material’ criteria.
5. Balance of national values and global/international/universal values.
The characteristics of the eclectic criminal law paradigm, not consistently maintaining the linearity of
transformation in certain legal systems throughout Indonesian history, whether civil law or common law,
underscore the nation’s pursuit of forging its own legal paradigm. Drawing on the concept of balance
elucidated by Barda Nawawi Arief, the original paradigm was rooted in the equilibrium of Pancasila val-
ues. The transformation of Indonesia’s criminal law paradigm in the New Criminal Code has led to
numerous fundamental and substantive changes. The paradigm shift from positivism-proceduralism
toward the paradigm of value balance grounded in Pancasila can be delineated in Table 1.
This transformational journey signifies a departure from traditional legal paradigms, embracing
a distinctly Indonesian approach that harmonizes diverse legal influences while prioritizing the
inherent values of Pancasila. The evolution towards a value-centric paradigm reflects a commit-
ment to a legal framework that aligns with the cultural and socio-political aspirations of the
Indonesian nation.
Conclusively, the character of the original paradigm of Indonesian criminal law can be shown from
four important components in the New Criminal Code, including the following (Table 2).
The explanation of the four important components of the Criminal Code can be classified into two
main parts, namely the integration of living law and the setting of goals in prosecution. These two parts
are the main pillars that support all aspects in the transformation of the Indonesian criminal law
paradigm.
Table 1. Fundamental characteristic on paradigm transformation after Indonesia New Criminal Code.
Paradigm characteristic Transformation highlights
Positivism-Proceduralism Shift to ValueBalance of Pancasila
Legal SystemVariability Consolidation of a Distinct Indonesian Legal Paradigm
Historical Inconsistency Estabilishment of a Coherent and Nationally Rooted Legal Framework
Civil Law and Common Law Inuences Systhesis into a Uniquely Indonesian Legal Identity
Pancasila as the Guiding Force Pancasila Values Anchored as the Core Legal Ideology
COGENT SOCIAL SCIENCES 9
First, authority of living law. The diversity of ethnicities, cultures, languages, and beliefs in Indonesia
directly impacts the emergence of diversity in all aspects of life, politics, economics, and law in society
(Syamsudin & Apha, 2020). Legal pluralism originates primarily from a pluralistic society and interacts
with each other following their identities (A. Salim, 2013). In Indonesia, cultural acculturation between
indigenous peoples and Europeans throughout the era of colonialism has made legal norms disparity
with local culture. With these realities, the need for legal pluralism is inevitable. In recent developments,
the tendency of national law reform shows a response to diversity of social norms by giving recognition
to living law through the new criminal code.
Previously, the study of the relevance of law to socio-cultural diversity has been a long debate. The
main reason is the rigid implementation of Article 1 of the Dutch Colonial Criminal Code, which empha-
sizes the establishment of criminal law norms derived only from the law. It specifically states that, ‘No
act be penalized unless the strength of the criminal laws in existing legislation existed when the act was per-
formed’. The inheritance of the Dutch Criminal Code makes the evaluation base for criminal acts only
have a single source, namely the written law. This condition causes a disregard for the values of the
Indonesian nation, and incompatibility between legal norms and the social dimension of the society in
which it is applied. In actually, legal texts of a nation cannot be taken over and subsequently imple-
mented in another nation, particularly if socio-cultural values of the two nations differ (Benda-Beckmann
& Benda-Beckmann, 2013). Textual gaps in the implementation of a nation’s legal products against other
nations result in legal disruption to the enforcement process. Substantive justice becomes unattainable
and boils down to procedural justice. Nevertheless, well in advance of the colonial epoch, Indonesian
society harbored a wealth of indigenous sagacity and intricate customary legal frameworks. Customary
law, originating from the habits or traditions of a community, held binding force within specific social
cohorts, operating autonomously of the national legal framework. The socio-historic tapestry of Indonesia,
characterized by a mosaic of ethnicities, kingdoms, and indigenous collectives, interwoven with the
assimilation of cultural values stemming from Hinduism, Buddhism, and Islam, established customary law
as a social verity that sculpted the legal ethos of Indonesian society preceding the colonial era. Snouck
Hurgronje’s 19th-century investigation systematically cataloged customary law regions into 19 distinct
divisions, as delineated in Table 3 (Von Benda-Beckmann, 2019).
Table 2. Four important components in Indonesia New Criminal Code.
Component Explanation
Principles of material
legality
Indonesia’s New Criminal Code provides recognition for the enforceability of living law as a source of punishment,
based on Article 2 Paragraph (1) of Law No. 1 of 2023. Unlike positive law that is carried out using the principle
of formal legality, living law is open to the use of the principle of material legality, so that it becomes an
instrument in achieving justice and substantive expediency.
Customary law as
living law
Article 2 Paragraph (1) of the Criminal Code and its explanations, ensure the enactment of customary law as a living
law, by rst obtaining regulations through Government Regulations and Regional Regulations. The principles of
codication and unication of legal sources that characterize the paradigm of positivism are structurally
deconstructed with the integration of living law in the criminal law system.
Purpose of
punishment
Enforcement of criminal law in the New Criminal Code is not carried out in procedural purposes, but rather
substantial. Article 51 of the Criminal Code places criminal objectives, including Social Protection Values,
Resocialization (Improvement) Values, Conict Resolution Values, Honesty and Truth Values, and Human Values.
This objective is the basic orientation in criminal law enforcement in Indonesia.
Principles of penal In imposing a crime, the judge is obliged to uphold law and justice. Article 53 provides guidelines that in the event
that in the event of an antinomy between justice and certainty, judges must administer justice.
Table 3. Customary jurisdiction according to the classication of Snouck Hurgronje.
No Customary jurisdiction No Customary jurisdiction
1Aceh 11 South Sulawesi
2Gayo, Alas, Batak, Nias and Batu 12 Ternate
3Minangkabau and Mentawai 13 Ambon and Maluku
4South Sumatera and Enggano 14 Irian
5Bangka and Belitung 15 Timor
6 Kalimantan 16 Bali and Lombok
7Minahasa, Sangihe, dan Talaud 17 Central Java, East Java, and Madura
8 Gorontalo 18 Swapraja Region
9 Toraja 19 West Java
10 Melayu
10 FAISAL ETAL.
The absence of recognition for customary law in the Old Criminal Code, dictated by the principle
of formal legality, led to a substantive formulation that often clashed with the societal values of
Indonesian reality. Additionally, discrepancies with the Dutch Criminal Code, particularly in categoriz-
ing criminal acts, further exacerbated the incongruence between legal norms and the prevailing social
norms in Indonesian society. Despite certain actions not being deemed criminal offenses in the Dutch
Colonial Criminal Code, they were considered unsuitable and illegal based on Indonesian societal val-
ues (Vincentius Patria Setyawan, 2023). An illustration is found in cases such as adultery between
unmarried individuals, cohabitation, and issues related to the LGBTQ + community. Although not explic-
itly labeled as criminal offenses in the Dutch Colonial Criminal Code, these actions ran counter to the
values and principles upheld by Indonesian society and were therefore deemed unacceptable.
To address these normative gaps, various regulations granting authority to enforce living law were
introduced. Emergency Law No. 1 of 1951 on Temporary Measures to Organize Unity of the Structure of
Authority and Processes of Civil Courts, Article 5 (3) subsection, affirms the imposition of punishment for
acts not covered in the Criminal Code based on customary law recognized by the community. This
response was further reinforced by Article 23, Paragraph 1, of Law No. 14 of 1970 on Judicial Power,
explicitly stating that court decisions must cite the relevant regulations or sources of unwritten law used
as the basis for adjudication, alongside the reasons and grounds for the decision.
The existence of these regulations served as the foundational rationale for the House of Representatives
and the Indonesian Government to incorporate living law into the new criminal code. Following the
ratification of the Draft Criminal Code (RKUHP) into Law No. 1 of 2023 concerning the Criminal Code,
living law was officially recognized in Indonesia. Article 2 (1) explicitly stipulates: ‘The provisions described
in Article 1 Paragraph (1) (the principle of legality) do not diminish the validity of laws in society that prescribe
punishment even though the act is not regulated in this law’. This provision underscores the acknowledg-
ment and integration of living law within the legal framework of Indonesia.
The purpose of Article 2 (1) is elucidated in the explanation section, clarifying that the term ‘law that
lives in society’ refers specifically to customary law, which dictates that individuals who commit certain
actions deserve punishment. This concept encompasses unwritten laws that persist and evolve within the
lives of the Indonesian people. Regional regulations are then employed to govern these customary
crimes, reinforcing law enforcement within the community.
Basically, it is very difficult to be able to combine living law in national law, with the basic nature
of living law which is very pluralistic, diverse, and spread according to territories that are completely
different from the government administration map (Kuswardani et al. 2022). Similarly, religious law,
particularly Islamic law, faces difficulties in its transformation into national law (Isra & Tegnan, 2021).
Consequently, a detailed elaboration of various types of living law within the criminal code is deemed
impractical. Instead, the principle adopted revolves around the recognition of the existence and legal-
ity of living law enforcement (Diala, 2017). The recognition of living law in Article 2 (1) of the Criminal
Code makes the principle of legality understood differently from the Dutch Colonial Criminal Code.
The principle of legality is no longer the only penalty for the categorization of criminal acts in the
Indonesian legal system. Article 2 (1) of the Criminal Code signifies a departure from the Dutch
Colonial Criminal Code’s interpretation of the principle of legality. In the Indonesian legal system, the
principle of legality no longer exclusively dictates the categorization of criminal acts. Recognition of
living law means that legal substance regulation adopts normative approaches aligned with commu-
nity culture and values, fostering a substantive sense of justice (Tongat, 2022).
Granting authority to living law within the Criminal Code establishes the acknowledgment of two
legality principles in Indonesian law (Rohayu Harun et al., 2023). Formal legality, recognized for its appli-
cability as the optimal format in criminal law to maintain legal certainty, coexists with material legality.
The latter provides space for living law, encompassing all criminal provisions not explicitly stipulated in
the law but regarded as criminal within society. While formal legality prioritizes legal certainty, material
legality leans toward justice and expediency within society. This intricate legal landscape offers more
substantive assurance for law enforcement, striking a balance between the state’s imperative for certainty
and the community’s need for access to justice and expediency.
Nevertheless, the comprehension of the living law within the national criminal system remains notably
extensive. Article 2, Paragraph (1) of the New Criminal Code necessitates the enactment of living law
COGENT SOCIAL SCIENCES 11
post its regulation through Government Regulations and Regional Regulations. In essence, certain cus-
tomary laws can only be applied as sources of criminal sanctions subsequent to their delineation in
Regional Regulations, the procedural intricacies of which are outlined by Government Regulations.
Conceptually, the New Criminal Code establishes a foundational and paradigmatic legitimacy, facilitating
the embodiment of these living legal norms and values through subsequent mechanisms within the
technical realm of regulation.
Second, purposeful criminal law enforcement. The instrumentation of sanctions is the main charac-
ter in criminal law whose implementation is monopolized by the state as the sole and highest sov-
ereign entity (Berkmann & Orton, 2020). Criminal law is generally formulated to provide a preventive
and curative deterrent effect, namely by frightening and avenging criminal acts committed by a per-
son and causing harm to both others and society (Maculan & Gil Gil, 2020). In normative contextual-
ization, the substance of criminal law is regulated with the aim of providing protection of human
rights and community rights and creating a unified social order. This goal is generally abstract, and
is at the level of the grundnorm in Kelsen’s hierarchy and the staats fundamental norm in Nawiasky’s
thought. Ontologically, the purpose of criminal law correlates with the paradigm of criminal justice
and is formed through dialectical cultural processes over a long time. Therefore, linearly with the
criminal justice paradigm, the purpose of punishment also has standardization limits based on the
cultural map of society (Nurdin & Turdiev, 2021). The purpose of penalizing Continental European
communities as reflected in the Dutch Colonial Criminal Code which prioritizes legal certainty has a
disparity with the purpose of criminal law in Indonesian culture characterized by customary law and
Islamic law.
In ensuring the achievement of substantive justice and laying the foundation for the criminal law
paradigm, important criminal objectives are standardized in the Criminal Code. This characterization
of goals correlates with law enforcement efforts so that judges have justification for breaking
through, where necessary for the achievement of those goals. In short, the purpose of punishment
is placed as an orientation and destination for law enforcement, while the articles in the Criminal
Code are the main approach by not closing alternative approaches, namely through waste and legal
discovery.
In the Dutch Colonial Criminal Code, the purpose of punishment is not stated with certainty, so it is
considered self-explanatory. The absence of this criminal purpose makes law enforcement tend to be
instrumental and procedural, oriented towards the enforcement of articles in criminal law. Under the
New Criminal Code, the purpose of punishment is implicitly introduced in Article 51, which is stated in
Table 4.
Furthermore, in Article 52 it is affirmed that; ‘Punishment is not intended to degrade human
dignity’.
The conceptualization of the purpose of punishment in the New Criminal Code shifts the paradigm
of retaliation carried in the Dutch Colonial Criminal Code into a genuine paradigm with corrective, reha-
bilitative, restorative, and substantive justice values. The purpose of punishment does not focus on retal-
iation for the perpetrator’s actions, but rather comprehensive protection of victims, perpetrators, and
society as a single subject that must be protected in national criminal law. The purpose of punishment
reflects the human beauty of law.
In addition to ensuring that punishment serves a non-retributive purpose, the sentencing objectives
also afford judges the discretion to refrain from imposing penalties for perpetrators involved in minor
offenses. This nuanced perspective is reflected in Article 54 (1), which mandates judges to take into
account 11 specific aspects when delivering a verdict. These considerations encompass the perpetrator’s
Table 4. The purpose of punishment in Article 51 of Law No. 1 of 2023 concerning the Criminal Code.
Purpose of punishment Justice paradigm
Prevent criminal acts from being committed by enforcing legal norms for the protection and
protection of the community.
Preventive
Socialize convicts by conducting coaching and guidance to become good and useful people. Rehabilitative
Resolving conicts arising from criminal acts, restoring balance, and bringing a sense of security
and peace in society.
Restorative
Fostering a sense of remorse and exonerating guilt in the convict. Corrective
12 FAISAL ETAL.
level of guilt, the motive and intent behind the criminal act, the inner attitude of the offender, whether
the act was planned or impulsive, the modus operandi, the post-crime behavior of the offender, the
individual’s background, social conditions, economic circumstances, the impact on the offender’s future,
the repercussions on victims or their families, forgiveness from victims and/or their families, and the
prevailing societal values of law and justice.
Article 54 (2) further elucidates that the gravity of the act, the personal circumstances of the perpetrator,
or the contextual factors during the crime and its aftermath can serve as grounds to consider refraining
from imposing a sentence. This consideration is contingent upon an evaluation of justice and humanity.
The contextualization of Article 54 (1) and (2) grants judges the authority to conduct ethical assess-
ments of criminal acts. Judges evaluate the significance of the offense, enabling them to exercise discre-
tion in cases where the offense is deemed minor and can be resolved without resorting to conviction.
Theoretically, the purpose of punishment outlined in the Criminal Code transcends the fundamental prin-
ciples of determinism, mechanic-atomistic approaches, and reductionism ingrained in the WvS-NI para-
digm (Rarog, 2021). Previously, judges operated within procedural constraints and normative logic,
seeking correlations between actions and legal provisions. With the new Criminal Code, judges now
engage in a more extensive, comprehensive evaluation of criminal acts and render judgments infused
with humanistic considerations.
Beyond signaling a paradigm transition and the infusion of values into the legal framework, the artic-
ulation of the purpose of punishment in the Criminal Code significantly impacts the technical approach
to law enforcement. Articles 51–54 of the Criminal Code empower judges and other law enforcement
officials with the tool of ‘rechterlijk pardon’ and encourage the application of restorative justice. In
essence, the dismissal of proceedings in a case is oriented towards achieving substantive justice. This
technicalization departs from the WvS-NI, which adhered to the principle of ‘no pardon’. Under the pre-
vious legal framework, if an individual could be held responsible for a criminal act, conviction was almost
inevitable. Conversely, the new Criminal Code introduces a nuanced approach where a crime and the
ability to be responsible are scrutinized based on the 11 considerations outlined in Article 54 (1). If com-
patibility is established and the impact is deemed significant, criminal consequences may be imposed;
otherwise, the case can be dismissed through rechterlijk pardon and restorative justice.
Crucially, the formulation of the purpose of punishment in the Criminal Code extends beyond the
judiciary. It reflects the Indonesian nation’s perspective on the implementation of criminal law, applying
to all components of law enforcement at various levels. Both the Police and the Prosecutor’s Office are
inclusively obligated to assess criminal offenses before proceeding with the conviction process. This
aligns with the existing restorative justice policy within the ambit of the Police and Prosecutor’s Office,
establishing coherence with the provisions of the Criminal Code. The pursuit of substantive justice is
meticulously orchestrated, moving through stages from the Police, the Prosecutor’s Office, to the Court.
Judges, as entities with the authority to issue final verdicts for criminal acts, possess extensive compe-
tence in shaping substantive justice.
3.5. Post-colonial societies: how nations are changing their colonial-legacy inherited legal
system?
Resistance to colonial law in Indonesia was not an isolated phenomenon but part of the broader colo-
nialist process spanning the 16th to 18th centuries across Asian, African, and Latin American nations. In
the pursuit of effective colonialism, colonial governments enacted laws similar to those in their home
countries, a practice known as concordance. However, these laws were modified and adjusted to be
oppressive. The colonial metropoles established their legal systems and dispute resolution mechanisms,
often dismissing pre-existing conflict resolution methods as primitive and suitable only for the native
population. Colonial legal projections were imbalanced, primarily geared towards generating profits and
enabling the exploitation of the colonizers. Widespread racial discrimination and violations of indigenous
rights occurred, such as apartheid in Africa and class distinctions in Indonesia among Western, Foreign
Eastern, and Indigenous peoples (Wily, 2021).
The post-World War II era witnessed a global wave of democratization and the swift attainment of
independence by many countries. Despite the de jure independence, replacing the colonial legal system
COGENT SOCIAL SCIENCES 13
proved challenging because it was deeply entrenched in Lawrence M. Friedman’s three aspects of law:
substance, structure, and legal culture. As a result, new independent states initially inherited and adopted
colonial laws until they could establish their own legal frameworks. In Indonesia, this inheritance is
explicitly affirmed in Article 2 of the Transitional Rules in the Indonesian Constitution, which states: ‘All
existing state bodies and regulations remain valid until new regulations are established’.
The normative incompatibility between the colonial legal system inherited from colonizers and the
values of post-colonial societies has made legal transition an inevitable phenomenon. This transition
encompasses changes in values, paradigms, substance, and structure. In Africa, this movement has been
particularly significant. On 15 July 2019, the Parliament of Rwanda took a decisive step by abolishing
all forms of colonial law inherited since 1962 through Article 3 of Law No. 020 of 2019, which states:
‘All legal instruments enacted before the date of Rwanda’s independence are repealed’. Globally, societies
have mobilized to reject historical instruments of oppression.
Rwanda, akin to several African nations, has commenced the departure from the colonial legacy legal
system, opting for the development of the Customary Law of Africa, which is arguably the world’s oldest
legal system and still persists today Originating prior to the era of colonialism, its principles have been
transmitted through generations (Atuguba, 2022). Sub-Saharan Africa has also witnessed law reform,
transitioning from the colonial legal system to a modern legal framework grounded in the authentic
values of the sub-Saharan society, a movement initiated since the 1960s (Sedler, 1968).
In Malaysia, the incongruity of the colonial legal system arose from the misalignment between the
Islamic legal tradition and the inherited Anglo-Saxon law. The colonial legal system was criticized for
‘unfairly discriminating or being otherwise prejudicial’ (M. R. Salim & Philip, 2022). Malaysia is actively
pursuing legal reforms across various domains, including criminal, civil, and corporate. Conversely, in
Brunei Darussalam, the implementation of Islamic Penal Law, replacing the British-Colonial Legal System,
has been in effect since 2014. The Sharia Penal Code Order (SPCO) enacted by the Brunei government
on 1 May 2014, contrasts with the colonial legal system, introducing criminalization of the LGBT commu-
nity and enforcing severe penalties such as stoning and beheading for offenses like sodomy, adultery,
rape, and murder (Minardi et al., 2022).
Latin America’s confrontation against the colonial legacy began in the 19th century with the independence
of Spanish and Portuguese colonies. Mexico declared independence from Spain in 1821 after an eleven-year
war but continued to enforce the Civil Code until 1884. In 1884, Article 217 of the Civil Code abolished
restrictive articles from the Spain Colonial Civil Code, signaling the initiation of ‘full testamentary freedom
rights. In Argentina, a wave of penal reform occurred while retaining Spanish colonial law and modifying it
into the Latin European legal system. Article 3591 of the 1868 Civil Code, for instance, introduced the concept
of ‘forced heirs’, limiting the succession right to a specific portion of inheritance.
The characteristics of penal reform in Argentina that maintained colonial law occurred due to high
immigration to the country so that since 1853, as the country became increasingly ethnically Spanish
and Italian, laws and institutions continued to reflect Latin European ideals (Cerami, 2022). However, the
divergent penal reform patterns in Mexico and Argentina can be read in one common conclusion: legal
changes follow the social and cultural needs of post-colonialism societies.
The distinctive penal reform trajectories in Mexico and Argentina converge on a common conclusion:
legal changes align with the social and cultural needs of post-colonial societies. In Indonesia, similar to
Rwanda, Malaysia, Brunei, and Mexico, the pattern of penal reform involves transitioning from the
Colonial Legal System to a genuine legal system across all aspects. Beyond updating criminal law with
the New Criminal Code, Indonesia is undergoing broader legal reform, encompassing civil and commer-
cial laws according to national needs. Legal reform represents a global movement for former colonies,
with the imperative to discard incompatible colonial laws (Reed, 2021).
4. Conclusion
The penal reform introduced in the New Criminal Code marks a pivotal transformation in the dimensions
of values, paradigms, and norms within Indonesian criminal law. This transition, while unavoidable, aligns
with a recurring phenomenon observed in pre-colonial societies. The inherent incompatibility of the
colonial legal system with societal values has precipitated a crisis of justice and a substantial gap in the
14 FAISAL ETAL.
realization of legal objectives. This situation stems from the pivotal role of values in shaping the law and
influencing its implementation in society. In the Indonesian context, the Dutch Colonial Criminal Code,
rooted in Continental European tradition, diverges from the principles and personality of a nation with
a pre-existing customary law system and an Islamic legal framework predating the colonial era.
The reformulation of criminal law in the New Criminal Code seeks to reinstate the essence of
Indonesian values within a genuine paradigm, namely the Pancasila value balance paradigm. This para-
digm is characterized by four key components. First, the deconstruction of positivism through the intro-
duction of the principle of material legality. Second, the integration of living law as an integral component
of the Indonesian criminal law system. Third, a reevaluation of the purpose of punishment in law enforce-
ment. Fourth, the incorporation of principles guiding punishment as a consideration for judges in case
adjudication. Two fundamental novelties indicating a paradigm shift are the acknowledgment of living
law as a source of punishment alongside positive law and the ideologization of criminal law with goals
normatively defined in the Criminal Code.
The contextualization of criminal law norms is achieved by establishing a system that serves as a
connecting bridge between societal reality and needs and legal norms. Consequently, the criminal law
paradigm plays a decisive role in shaping the perception of justice derived from instrumental and pro-
cedural articles. Through this paradigmatic shift, Indonesia allows for the prioritization of a sense of
justice and the purpose of punishment in law enforcement, emphasizing laws that resonate within soci-
ety. This reflects a commitment to adapting the law to society, recognizing that the law exists for the
benefit of humanity, not vice versa. While acknowledging penal reform as an unavoidable and essential
phenomenon, Indonesia has made profound changes aligned with the linear progression of people’s
values and culture – a testament to the inherent beauty of human-centered law. However, it is crucial
to recognize that sustained efforts to achieve social justice necessitate comprehensive considerations,
encompassing legal substance, cultural nuances, accessibility to legal information and public services,
robust legal institutions, and effective law enforcement. The enactment of a new regulation does not
guarantee the resolution of all societal issues, and careful consideration is required in evaluating the
broader impact on social justice.
Acknowledgments
We extend our sincere appreciation to the Faculty of Law, Universitas Bangka Belitung for presenting a research
roadmap that guides our exploration of the topic of national legal reforms and the examination of local wisdom
values. Our gratitude is expressed for the valuable insights and support received from the academic community at
the university, collectively contributing to the development of this journal publication.
CRediT authorship contribution statement
Faisal: Conceptualization, Methodolosgy, Writing – Original Draft, Investigation. Andri Yanto: Data curation, Formal
analysis, Writing – Review & Editing. Dwi Haryadi: Visualization, Software, Validation, Resources. Derita Prapti
Rahayu: Supervision, Project administration, Funding acquisition. Anri Darmawan: Methodology, Writing – Original
Draft, Investigation. Jeanne Darc Noviayanti Manik: Conceptualization, Writing – Review & Editing, Visualization.
Disclosure statement
The author of state that there is no conict of interest in the publication and research of this article.
About the authors
Dr. Faisal, SH, MH, born in Balikpapan on November 24, 1983, is an Indonesian legal scholar and
practitioner. Currently serving as the Head Lecturer at the Faculty of Law, Universitas Bangka
Belitung, he teaches criminal law with a focus on progressive legal principles at both undergraduate
and postgraduate levels. Dr. Faisal brings extensive practical insight to his academic role, having
served as a Special Sta at the Judicial Commission of the Republic of Indonesia. His educational
journey includes a Bachelor’s degree from Muhammadiyah University Yogyakarta, a Master’s degree
from the Islamic University of Indonesia, and a Doctorate from Diponegoro University. Recognized
COGENT SOCIAL SCIENCES 15
as a prolic writer, Dr. Faisal actively contributes to legal literature through books and journals, particularly in the
eld of criminal law. With dedication to teaching, research, and public service.
Andri Yanto, born in Mataram Udik on July 24, 2001, is currently pursuing his undergraduate degree in Constitutional
Law at Universitas Bangka Belitung. His research interests span constitutional law, mining law, environmental law,
and energy law. Andri is an active writer, having authored and published 10 books and numerous journal articles
across various indices. Recognized for his academic excellence, Andri has been honored as a university achiever at
Universitas Bangka Belitung in both 2021 and 2022. He has also demonstrated his prowess on a national level by
winning debate competitions in 2018 and 2019. Additionally, Andri plays a signicant role in youth leadership and
energy advocacy, being one of the founders of the Indonesia Nuclear Youth Society (INYS). His multifaceted contri-
butions showcase Andri Yanto as a dedicated and accomplished student with a passion for legal research, debate,
and societal engagement.
Dr. Derita Prapti Rahayu, SH, MH, born in Jember on December 17, 1980, is a prominent legal scholar and educator.
Currently serving as the Head Lecturer, she specializes in Civil Law and Mining Law at the Faculty of Law, Universitas
Bangka Belitung. Dr. Derita has actively contributed to public service, participating as a debater in local elections
and serving on the Honorary Council of Notaries for the Kepulauan Bangka Belitung Province. She has also been a
crucial team member of the Regional Elections Commission and the Supervisory Team for the Bangka Belitung
Province. Her academic journey includes a Bachelor’s degree from FH UNDAR JOMBANG, a Master’s degree from MIH
UNDIP, and a Doctorate from PDIH UNDIP. Dr. Derita’s research focuses on unconventional tin mining cultures, licens-
ing mechanisms, and legal enforcement in Bangka Regency.
Dr. Dwi Haryadi, SH, MH, born in Nyemoh on July 17, 1983, is a distinguished legal scholar and practitioner. Currently
holding the position of Head Lecturer, he specializes in Criminal Law and Mining Law at the Faculty of Law,
Universitas Bangka Belitung. Dr. Dwi has a rich history of public service, including involvement in the selection
committees for the Regional Elections Supervisory Board (Bawaslu) at the regency/city level, as well as for Regional
Head and Deputy Regional Head positions at the provincial and regency levels. Additionally, he has contributed to
public debates and served as a panelist and moderator. Dr. Dwi’s academic journey includes a Bachelor’s degree
from FH UNISSULA, a Master’s degree from MIH UNDIP, and a Doctorate from PDIH UNDIP. His research focuses on
various aspects of criminal law, cyberporn policy formulation, and the development of policies for unauthorized tin
mining (PETI) to benet communities in the Kepulauan Bangka Belitung Province.
Anri Darmawan, S.H., born in Sungailiat, May 10, 2001, completed his undergraduate law degree at the Faculty of
Law, Universitas Bangka Belitung, with a specialization in criminal law. He received a master’s scholarship from
Universitas Bangka Belitung and has been actively engaged in research in the elds of criminology, legislation, cus-
tomary law, and the environment. Anri’s dedication to academic pursuits is evident through his active involvement
in journalism and writing, a passion that originated during his undergraduate studies. He has contributed signi-
cantly to the academic community, publishing various books and journals that contribute to the discourse on legal
topics. Anri’s commitment to research, coupled with his diverse interests in law and societal issues, showcases him
as a dynamic and accomplished individual within the legal and academic sphere.
Dr. Jeanne Darc Noviayanti Manik, SH, M.Hum, born in Palembang on November 5, 1973, is an esteemed academic
and legal professional. Currently holding the position of Lecturer, she specializes in Criminal Law and Environmental
Law at the Faculty of Law, Universitas Bangka Belitung. Dr. Jeanne has actively contributed to public service by
serving on the Supervisory Board of Notaries for the Kepulauan Bangka Belitung Province. Her educational journey
comprises a Bachelor’s degree from FH UNSRI, where her thesis focused on the eectiveness of criminal sanctions
against defendants misusing illegal drugs. She pursued a Master’s degree from MIH UNSRI, exploring the application
of criminal sanctions for oenders involved in drug abuse in Palembang. Dr. Jeanne earned her Doctorate from PDIH
UNIBRAW, with a dissertation on the authority of civil servants as investigators in environmental crime cases within
the criminal justice system.
References
Acciaioli, G. (2007). From customary law to indigenous sovereignty: Reconceptualizing masyarakat adat in contem-
porary Indonesia. In The revival of tradition in indonesian politics (pp. 1–17). Routlege. 10.4324/9780203965498-21
Adawiyah, R., & Rozah, U. (2020). Indonesia’s criminal justice system with Pancasila perspective as an open justice
system. Law Reform, 16(2), 149–162. https://doi.org/10.14710/lr.v16i2.33783
Arifin, K. K., & Primadianti, H. (2023). Reviewing the implications of the living law as an expansion of the legal-
ity principle in the Criminal Code. Sriwijaya Crimen Legal Studies, 1(1), 45–55. https://doi.org/10.28946/scls.
v1i1.2732
Aspinall, E., & Fealy, G. (Eds.). (2010). Soeharto’s new order and its legacy: Essays in honour of Harold Crouch (1st ed.).
ANU Press. https://doi.org/10.22459/SNOL.08.2010
Atuguba, R. A. (2022). Legal pluralism in Africa: Three levels and seven types of law (pp. 17–25). The Routledge
Handbook of African Law.
16 FAISAL ETAL.
Benda-Beckmann, F., & Benda-Beckmann, K. (2013). Political and legal transformations of an Indonesian polity: The
Nagari from colonisation to decentralisation. Cambridge University Press. https://doi.org/10.1017/CBO978113983908
Berkmann, B. J., & Orton, D. E. (2020). The internal law of religions: Introduction to a comparative discipline. Routledge.
https://doi.org/10.4324/9781003005322
Butt, S. (2023). Indonesia’s new Criminal Code: Indigenising and democratising Indonesian criminal law? Grith Law
Review, 32(2), 190–214. https://doi.org/10.1080/10383441.2023.2243772
Butt, S., & Lindsey, T. (2020). The Criminal Code. In Crime and punishment in Indonesia. Routledge. 21–43. https://doi.
org/10.4324/9780429455247-3
Celano, B. (2000). Kelsen’s concept of the authority of law. Law and Philosophy, 19(2), 173–199. http://www.jstor.org/
stable/3505164 https://doi.org/10.2307/3505164
Cerami, T. J. (2022). Confronting the colonial legacy: Retaining and rejecting Spanish Colonial Law in nineteenth century
Latin America: Mexico and Argentina. International Immersion Program Papers.
Daci, J. (1997). Legal principles, legal values and legal norms: Are they the same or dierent? Academicus—
International Scientic Journal, Ratio Juris, 10(3), 109–115.
Diala, A. C. (2017). The concept of living customary law: A critique. The Journal of Legal Pluralism and Unocial Law,
49(2), 143–165. https://doi.org/10.1080/07329113.2017
Dziadzio, A. (2021). The academic portrait of the creator of the pure theory of law. Several facts from Thomas
Olechowski’s book entitled Hans Kelsen. Biographie eines Rechtswissenschaftlers. Tübingen: Mohr Siebeck.
Krakowskie Studia z Historii Państwa i Prawa, 14(3), 383–395. https://doi.org/10.4467/20844131KS.21.028.14093
Emilia, S., Andini, M., & Asbari, M. (2022). Pancasila as a paradigm of legal development in Indonesia. Journal of
Information Systems and Management (JISMA), 01(2), 22–27. https://doi.org/10.4444/jisma.v1i2.6
Ergashev, Z. (2021). Democratic legal culture:How strong are values? Journal of Law and Legal Reform, 2(4), 623–628.
https://doi.org/10.15294/jllr.v2i4.45760
Friedman, L. M. (2019). Context and convergence: Some remarks on the law and society movement. Law in Context.
A Socio-Legal Journal, 36(1), 12–20. https://doi.org/10.26826/law-in-context.v36i1.82
Handayani, I. G. A. K. R. (2012). The inuence of structure, substance, and culture to the forest law enforcement in
Indonesia. International Journal of Business, Economics, and Law, 1, 104–116.
Henham, R. (2022). Sentencing policy, social values and discretionary justice. Oxford Journal of Legal Studies, 42(4),
1093–1117. https://doi.org/10.1093/ojls/gqac011
Isra, S., & Tegnan, H. (2021). Legal syncretism or the theory of unity in diversity as an alternative to legal pluralism
in Indonesia. International Journal of Law and Management, 63(6), 553–568. https://doi.org/10.1108/
IJLMA-04-2018-008
Joshua, G. M. (2014). An overview of Thomas Kuhn’s views on paradigm shift, and its application to sociology.
International Journal of Technical Research and Application, 2(Special Issues 7), 83–86.
Kuswardani, H., Hussain, M. B. M., Kurnianingsi, M., & Prakosa, A. L. (2022). Humanity values on reconciliation in
criminal law: Indonesian criminal law renewal perspective. Halu Oleo Law Review, 6(2), 137–150. https://doi.
org/10.33561/holrev.v6i2.1
Lacerda, G. B. D. (2009). Fairness in the thought of John Rawls and Auguste Comte. Brazilian Political Science Review,
3(1), 58–92. https://doi.org/10.1590/1981-3852200900010003
Lev, D. S. (1973). Judicial unication in post-colonial Indonesia. Indonesia, 16, 1–37. https://doi.org/10.2307/3350645
Maculan, E., & Gil Gil, A. (2020). The rationale and purposes of criminal law and punishment in transitional contexts.
Oxford Journal of Legal Studies, 40(1), 132–157. https://doi.org/10.1093/ojls/gqz033
Mallarangan, K. (2021). Reconstruction of the legality principle: The essence of the Pancasila spirit in criminal law
reform. Rechtsidee, 8, 1–13. https://doi.org/10.21070/jhr.v8i0.782
McCold, P. (2004). Paradigm muddle: The threat to restorative justice posed by its merger with community justice.
Contemporary Justice Review, 7(1), 13–35. https://doi.org/10.1080/1028258042000211987
Meuleman, J. (2006). Between unity and diversity: The construction of the Indonesian nation. European Journal of East
Asian Studies, 5(1), 45–69. https://doi.org/10.1163/157006106777998115
Minardi, A., Afriantari, R., & Maesuroh, M. (2022). The implementation of Islamic Penal Law in Brunei Darussalam and
international society. Socio Politica: Jurnal Ilmiah Jurusan Sosiologi, 11(1), 1–9. https://doi.org/10.15575/socio-politica.
v11i1.7961
Najih, M. (2018). Indonesian penal policy: Toward Indonesian criminal law reform based on Pancasila. Journal of
Indonesian Legal Studies, 3(2), 149–=174. https://doi.org/10.15294/jils.v3i02.27510
Nurdin, B., & Turdiev, K. (2021). Paradigm of justice in law enforcement in the philosophical dimensions of legal
positivism and legal realism. Lex Publica, 8(2), 65–74. https://doi.org/10.58829/lp.8.2.2021.65-74
Rarog, A. I. (2021). thepurpose of punishment in the science of criminal law. Actual Problems of Russian Law, 16(2),
125–139. https://doi.org/10.17803/1994-1471.2021.123.2.125-139
Reed, A. (2021). Reform of Anglo-American complicity law: Conduct, connectivity and comparative solutions. The
Journal of Criminal Law, 86(6), 441–487. https://doi.org/10.1177/00220183221123462
Roq, A., Disemadi, H. S., & Putra Jaya, N. S. (2019). Criminal objectives integrality in the indonesian criminal justice
system. Al-Risalah: Forum Kajian Hukum Dan Sosial Kemasyarakatan, 19(2), 179–190. https://doi.org/10.30631/
al-risalah.v19i2.458
COGENT SOCIAL SCIENCES 17
Rohayu Harun, R., Sahid, M. M., & Yamin, B. (2023). Problems of criminal applications law in the life of Indonesian
communities and cultures. Jurnal IUS Kajian Hukum Dan Keadilan, 11(1), 140–155. https://doi.org/10.29303/ius.
v11i1.1144
Salim, A. (2013). Dynamic legal pluralism in Indonesia: Contested legal orders in contemporary Aceh. The Journal of
Legal Pluralism and Unocial Law, 42(61), 1–29. https://doi.org/10.1080/07329113.2010.10756640
Salim, M. R., & Philip, L. (2022). The law in a post-colonial state: The shareholder’s oppression remedy in Malaysia.
Gobal Jurist Frontiers, 8(1), 1–6.
Schmid, D. J. (2003). Restorative justice: A new paradigm for criminal justice policy. Victoria University of Wellington
Law Review, 34(1), 91–134. https://doi.org/10.26686/vuwlr.v34i1.5799
Sedler, R. A. (1968). Law reform in the emerging nations of Sub-Saharan Africa: Social change and the development of
the modern legal system. Law Faculty Research Punlication, Wayne State University.
Shari, S. (2022). Unsettling the paradigm of criminal justice. Radical Philosophy Review, 25(2), 319–324. https://doi.
org/10.5840/radphilrev2022252129
Stein, P. (2010). Legal values in western society. Edinburd University Press. http://law.hku.hk/lawgovtsociety/stein.pdf.
Syamsudin, M., & Apha, J. M. (2020). Reorientation of approaches in indonesian customary law studies. Journal of
Indonesian Adat Law, 1(1), 1–33. https://doi.org/10.46816/jial.v1i1.15
Tamanaha, B. Z. (2010). Understanding legal pluralism: Past to present, local to global (1st ed.). Routledge.
Tamma, S., & Duile, T. (2020). Indigeneity and the state in Indonesia: The local turn in the dialectic of recognition.
Journal of Current Southeast Asian Aairs, 39(2), 270–289. https://doi.org/10.1177/1868103420905967
Tolkah, T. (2021). Customary law existency in the modernization of criminal law in Indonesia. Varia Justicia, 17(1),
72–89. https://doi.org/10.31603/variajusticia.v17i1.5024
Tongat. (2022). The ambiguous authority of living law application in new Indonesian Penal Code: Between justice
and the rule of law. International Journal of Criminal Justice Science, 12(2), 188–209.
Utama, T. S. J. (2021). Between adat law and living law: An illusion of customary law incorporation into Indonesia
penal system. The Journal of Legal Pluralism and Unocial Law, 53(2), 269–289. https://doi.org/10.1080/07329113.2
021.1945222
Vincentius Patria Setyawan. (2023). Pemaknaan Asas Legalitas Materiil Dalam Pembaruan Hukum Pidana Indonesia.
Gudang Jurnal Multidisiplin Ilmu 1(1), 13–15. https://doi.org/10.59435/gjmi.v1i1.3
Von Benda-Beckmann, K. (2019). Anachronism, agency, and the contextualisation of adat: Van Vollenhoven’s analyses
in light of struggles over resources. The Asia Pacic Journal of Anthropology, 20(5), 397–415. https://doi.org/10.108
0/14442213.2019.1670242
Wily, L. A. (2021). Transforming legal status of customary land rights: What this means for women and men in rural
Africa. In U. E. Chigbu (Ed.), Land governance and gender: The tenure-gender nexus in land management and land
policy (1st ed., pp. 169–181). CABI. https://doi.org/10.1079/9781789247664.0014
Wirabakto, M. Z. (2022). A juridical analysis of the comparison of legality principle in the Indonesian Criminal Code
(WvS) and the draft of New Indonesian Criminal Code (National Criminal Code). Budapest International Reseacrh
and Critics Institute Journal, 5(1), 3030–3040. https://doi.org/10.33258/birci.v5i1.3946
Witteveen, W. J. (2003). Law’s beginning. Brill Academic Publishers.
Yolandika, C. (2022). Social concepts of traditional justice and methods of settlement of traditional law in Aceh,
Indonesia. Economic Management and Social Sciences Journal, 1(1), 15–20. https://doi.org/10.56787/ecomans.v1i1.8
Yusliwidaka, A., Abqa, M. A. R., & Gunawan, T. A. (2023). Measuring positivism in legal science and legal practice in
Indonesia. Journal of Law and Policy Transformation, 7(2), 75. https://doi.org/10.37253/jlpt.v7i2.7288
