Living Law in Law Number 1 of 2023 Concerning the National Criminal Code

Introduction

Indonesia is a country with many different ethnicities, cultures, and values. These differences create unwritten norms and rules that are adhered to by the community, known as customary law. This customary law often serves as the primary guideline for social behavior, even before written state law exists. Indonesia's criminal justice system has historically focused on written laws dating back to the colonial era, such as the old Criminal Code (KUHP). This creates a gap between formal law and societal values. Written law is often considered to not reflect a sense of justice for indigenous communities because it ignores still-respected customary norms.

National criminal law reform is an urgent need after Indonesia has used the Wetboek van Strafrecht for more than a century. (WvS) is a legacy of Dutch colonialism, based on liberal-individualistic values and rigid legal principles (lex scripta, lex certa, lex stricta). This condition is considered not entirely in line with the social, cultural, and Pancasila values that exist in Indonesian society. The enactment of Law Number 1 of 2023 concerning the Criminal Code is seen as an important milestone in the reform of national criminal law, which aims to build a criminal law system that is in accordance with the character of the Indonesian people. This momentum was finally realized through the ratification of Law Number 1 of 2023 concerning the Criminal Code.

Living law has long been a topic of debate in the reform of Indonesia's national criminal law. This debate has involved criminal law experts, such as Barda Nawawi Arief , who supports the recognition of customary law as part of national criminal law reform, and a number of other academics are concerned about potential conflicts with the principles of legality, legal certainty, and human rights protection . This concept was first popularized by Eugen Ehrlich, who emphasized that the law that truly applies is the law that is actually practiced by society, not merely the law written in statutory regulations. The debate over living law has long predated the enactment of Law Number 1 of 2023 concerning the Criminal Code (KUHP). Developments in national law have led to efforts to reform criminal law through Law Number 1 of 2023 concerning the National Criminal Code. One important reform is the recognition of customary law as a source of criminal law. This demonstrates an effort to incorporate customary law values into the national legal system.

One of the main features of the criminal law reform in the 2023 Criminal Code is the recognition of living law or law that exists in society, as formulated in Article 2 of the 2023 Criminal Code. This provision opens up space for the application of unwritten customary criminal law as a basis for sentencing, as long as the law is truly alive and recognized by the local community and does not conflict with Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general legal principles recognized by civilized societies. This regulation aims to accommodate the diversity of legal systems that exist in society and realize justice in accordance with the social values of Indonesian society. However, the application of customary law cannot be carried out absolutely because it must still meet the conditions and limitations stipulated in statutory regulations. Article 2 paragraph (2) of Law Number 1 of 2023 stipulates that customary law only applies if it does not conflict with Pancasila, the 1945 Constitution, and the principles of human rights. It is important to maintain a balance between respecting local wisdom and protecting the basic rights of individuals.

The recognition of living law in Article 2 of the National Criminal Code can be understood as a form of criminal law deformization (penal defoliation) , namely a shift from rigid and formal criminal law to criminal law that is more responsive to social realities. Nyoman Serikat Putra Jaya emphasized that criminal law reform is not sufficient through codification alone, but must accommodate laws that are truly alive and obeyed by society as a reflection of substantive justice. In line with this, Made Widyana stated that:

"Customary criminal offenses are a manifestation of social values that have functioned as a mechanism of social control long before the advent of modern criminal law. Therefore, penal defilement through living law is intended to bridge the gap between positive law and society's sense of justice."

The provision of living law in the 2023 Criminal Code has sparked controversy due to concerns that it could become a gateway to criminalizing vulnerable groups, including women, people with gender diversity, people with disabilities, and indigenous communities. This concern arose because the definition of living law is so broad in practice that it has the potential to be used to legitimize identity politicization and misogyny. The existence and validity of positive law and living law is a dialogical debate between the sociology of law and the positivism of law schools. The debate between these two schools of thought lies in the nature of law in social life. Policies that incorporate ethical, moral, or religious elements into state laws must be undertaken with great caution.

The recognition of living law in Article 2 of the 2023 Criminal Code has sparked serious academic debate. This provision is seen as potentially shifting the principle of legality from an absolute to a relative one, raising concerns about legal uncertainty and abuse of authority in criminal law enforcement practices. The application of criminal law based on unwritten norms risks blurring the boundaries of criminal acts (nullum crimen sine lege certa) and opens up immeasurable opportunities for criminalization, particularly for weak and vulnerable groups in society.

Supreme Court jurisprudence has provided concrete examples of the application of living law , including in corruption cases where defendants were acquitted because the public felt they had benefited from their actions and there was no real state loss. This illustrates the complexity of the application of living law in Indonesian judicial practice.

The archipelago, home to hundreds of ethnic groups, boasts an extraordinary diversity of customary laws. Central Lombok recognizes the customary law of deden Potong Kris, which applies in Rembitan Village, which permits harsh sanctions for adultery. In Bali, nudity in certain ritual contexts is considered acceptable, but in Lombok, it can result in social and legal sanctions. These differences raise fundamental questions about the fairness of national law in the application of living law, which varies across regions. Furthermore, there is a serious threat of excessive criminalization, a disproportionate expansion of punishable acts due to the uncontrolled integration of living law . Teguh Prasetyo emphasized that criminal law must be ultimum remedium , meaning it is used as a last resort. Therefore, the expansion of criminalization through living law requires critical examination.

According to Eddy, the article on living law which is focused on customary law as regulated in the explanation of Article 2 of the 2023 Criminal Code, is followed by a distribution of several other articles, including:

Article 66, Article 96, and Article 567 of the 2023 Criminal Code relate to criminal penalties and types of sanctions. As the subject of this study, the scope of living law presented in this study includes issues related to criminal penalties and types of criminal (legal) sanctions. Criminal penalties are the process of giving or imposing a sentence by a judge, so it can be said that the criminal system encompasses all statutory provisions that regulate how criminal law is enforced or operationalized concretely so that a person is subject to criminal sanctions.

The increasingly complex debate arose from the fact that the National Criminal Code (KUHP) did not fully regulate the mechanism of its application in the criminal law enforcement process. Article 2 of the National Criminal Code only establishes the basic principle of recognition, while Article 66 of the National Criminal Code delegates further regulation regarding the procedures and criteria for determining living law in society to government regulations. This lack of technical regulation created prolonged legal uncertainty until the Government finally issued Government Regulation Number 55 of 2025 concerning Procedures and Criteria for Determining Living Law in Society (hereinafter referred to as PP No. 55 of 2025), which came into effect on January 3, 2026.

Furthermore, this Government Regulation emphasizes that sanctions for customary crimes are not imprisonment but rather the fulfillment of customary obligations equivalent to a category II fine under the National Criminal Code , a maximum fine of IDR 10,000,000 . Formal criminal law is only taken as an ultimum remedium if the perpetrator refuses to implement the results of customary deliberations. Although Government Regulation No. 55 of 2025 was introduced as an effort to fill the normative vacuum, a number of fundamental legal issues remain unanswered. First, the issue of legal certainty; whether the Regional Regulation mechanism as a medium for crystallizing living law is sufficient to guarantee legal certainty for the community, considering the unequal capacity of regional legislation and the potential for normative conflicts between Regional Regulations and higher regulations. Second, the issue of disparity in application; by relying on the good faith and technical capabilities of each regional government, there is a real risk that living law in society will be applied inconsistently across Indonesia, thereby violating the principle of equality before the law . Third , the issue of compatibility with human rights; the criteria in Article 4 of Government Regulation No. Law No. 55 of 2025 does require compliance with the values of Pancasila, the 1945 Constitution, and human rights, but there is no operational and independent testing mechanism to ensure that criminalized customary norms do not violate the fundamental rights of citizens.

Research Methods

To solve a problem that becomes the main topic of discussion, this study uses normative legal research. Normative legal research is conceptualized as research into rules or norms that serve as benchmarks for human behavior that are considered appropriate. The sources of normative legal research are only secondary data, consisting of primary legal materials, secondary legal materials, and tertiary legal materials.

Discussion

1. Living Law Regulations In The Criminal Code In Law Number 1 Of 2023 And Government Regulation Number 55 Of 2025

Regarding customary criminal sanctions as an additional form of punishment within the national criminal justice system, the National Criminal Code innovatively accommodates customary sanctions by placing them in the category of additional punishments that can be imposed by judges alongside or as an alternative to the principal punishment.

Customary criminal sanctions recognized in the National Criminal Code include various forms, including:

1. payment of customary fines to victims or their families,

2. implementation of traditional ceremonies as a form of restoring social balance,

3. temporary exclusion from the community, as well as

4. obligation to carry out social work in a customary context.

These forms of sanctions reflect the philosophy of customary punishment which is more oriented towards restoring social relations (restorative) compared to the purely punitive (retributive) approach which is dominant in modern criminal law.

1. Regulation of Customary Criminal Sanctions in Living Law

Customary criminal sanctions are legal consequences imposed based on customary law norms against someone who violates the provisions that are in force and recognized by the customary law community. Unlike criminal sanctions in positive law, which are oriented towards punishment through imprisonment, fines, or other penalties as regulated in the Criminal Code, customary criminal sanctions are essentially aimed at restoring the balance of relations between the perpetrator, the victim, the community, and customary values that have been disturbed by a violation. The primary orientation of customary criminal sanctions is not retributive justice , but rather restorative justice and the restoration of harmony in the life of the customary community.

Violations of customary norms are not only viewed as acts that harm individuals but also disrupt the social and spiritual balance of society. Resolving these violations requires more than simply punishing the perpetrators; they must also restore disrupted relationships to restore harmony in society. This view aligns with the character of Indonesian customary law, which prioritizes deliberation, peace, social responsibility, and the restoration of relationships among community members over inflicting suffering on the perpetrators. Customary criminal sanctions are an instrument for restoring balance, the primary goal of customary law.

The recognition of customary criminal sanctions in the national criminal law system is legally based through Article 2 of Law Number 1 of 2023 concerning the Criminal Code, which recognizes the existence of living law within society as a basis for sentencing. This provision demonstrates a paradigm shift in Indonesian criminal law, from a system solely based on written law to one that also allows for legal norms that develop within society. However, this recognition is not unlimited. The Criminal Code emphasizes that living law can only be applied if it truly still exists within a particular society and does not conflict with Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general principles of law recognized by the community of nations.

These regulations are further elaborated in Government Regulation Number 55 of 2025 concerning Procedures and Criteria for Establishing Living Laws in Society. This Government Regulation regulates the mechanisms for identification, research, academic study, and determination of customary law before it can be applied as a basis for criminal punishment. Furthermore, the Government Regulation also stipulates that the form of sanction for customary crimes is not imprisonment, but rather the fulfillment of customary obligations established based on norms existing within the customary law community. This regulation demonstrates that the state does not fully take over the settlement mechanisms under customary law, but rather provides recognition of these mechanisms while still establishing normative boundaries so that their implementation is in accordance with the national legal system.

The forms of customary criminal sanctions under living law are essentially very diverse, following the characteristics of each customary law community. Fulfillment of customary obligations can include paying compensation, performing customary ceremonies, offering customary apologies, restoring relationships with victims or the community, and other obligations traditionally recognized as ways to resolve customary violations. This diversity of sanctions reflects the pluralistic nature of customary law in Indonesia. However, this diversity does not mean that all customary sanctions can be applied without fail. Only sanctions that are still alive, recognized by customary communities, and meet the requirements stipulated in the Criminal Code and Government Regulation No. 55 of 2025 can be recognized in the national criminal law system.

The regulation of customary criminal sanctions reflects a shift in the orientation of criminal law, from a paradigm that solely emphasized retribution to one that places greater emphasis on recovery and conflict resolution. This approach aligns with the development of modern criminal law theory, which places the interests of the victim, the perpetrator, and the community as elements that must be considered in a balanced manner. In customary law communities, the goal of criminal law is not only measured by the severity of the punishment imposed on the perpetrator, but also by the success of restoring social relations disrupted by the violation. The existence of customary criminal sanctions can be seen as one form of implementation of the values of restorative justice that have long developed in Indonesian legal tradition before the concept was introduced into modern criminal law.

The application of customary criminal sanctions still requires strict limitations to prevent violations of the principles of the rule of law. These limitations are realized through the requirement that all customary norms comply with Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general principles of criminal law. This requirement aims to prevent the application of customary sanctions that are discriminatory, demeaning to human dignity, or provide disproportionate punishment. In this way, the state continues to respect the existence of customary law as part of national legal pluralism, while simultaneously ensuring that its implementation does not conflict with applicable constitutional principles.

The provisions on customary criminal sanctions in the National Criminal Code and Government Regulation No. 55 of 2025 demonstrate an effort to harmonize state law and customary law. On the one hand, the state recognizes local values still alive in society as part of the national legal identity. On the other hand, the state maintains its oversight function through mechanisms for determining, limiting substance, and testing compliance with national legal principles. This harmonization is a crucial step in building a criminal law system that accommodates the diversity of Indonesian society without sacrificing legal certainty, equality before the law, and the protection of human rights. The provisions on customary criminal sanctions in living law not only represent a recognition of legal pluralism but also reflect an effort to create a national criminal law system that is more responsive to the social realities of Indonesian society.

1. Regulation of Customary Fines in Living Law

The recognition of customary fines in the national criminal law system represents a form of state accommodation to the existence of living law . Although Law Number 1 of 2023 concerning the Criminal Code does not explicitly mention the term "customary fines," the Criminal Code recognizes the fulfillment of customary obligations as a form of additional punishment in cases based on living law within the community. This regulation demonstrates that the state provides space for settlements based on customary law as long as these norms are still alive and meet the requirements stipulated by statutory regulations.

More detailed regulations were then provided through Government Regulation Number 55 of 2025 concerning Procedures and Criteria for Determining Living Laws in Society. This Government Regulation emphasizes that sanctions for customary crimes are implemented in the form of fulfilling customary obligations in accordance with the norms prevailing within the customary law community. If the customary obligation is in the form of payment of money, goods, or other forms of compensation, its implementation is carried out in accordance with the customary provisions applicable to the community concerned. Thus, the state does not standardize the form of customary fines throughout Indonesia, but rather provides space for each customary law community to maintain the characteristics of its respective sanctions as long as they meet the established requirements.

One of the important updates in Government Regulation No. 55 of 2025 is the equalization of the value of fulfilling customary obligations with Category II fines in the National Criminal Code. This regulation is not intended to change the nature of customary fines into criminal fines as recognized in the Criminal Code, but rather to measure the maximum value of customary obligations to ensure their implementation remains proportional and provides legal certainty. With this equalization, the regulators seek to avoid the possibility of imposing excessive customary obligations or ones that are disproportionate to the level of culpability of the perpetrator.

Customary fines can only be applied if the norms that form the basis for imposing sanctions have met all the requirements as stipulated in the Criminal Code and Government Regulation Number 55 of 2025. These norms must truly exist within the customary law community, have undergone a process of identification, field research, academic studies, and be stipulated through Regional Regulations in accordance with applicable mechanisms. In addition, the implementation of customary fines must respect constitutional principles, including not contradicting Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general principles of criminal law. These requirements indicate that the validity of customary fines is not only based on social legitimacy, but also obtains legal legitimacy within the national legal system.

The regulation of customary fines in the Criminal Code and Government Regulation No. 55 of 2025 represents a crucial step in reducing the heterogeneity in the application of customary law across regions. Prior to these regulations, the amount and form of customary fines depended entirely on the practices of each indigenous community, potentially leading to significant differences. By establishing normative limits and equating them with Category II fines in the Criminal Code, the state seeks to create minimum standards that can serve as a reference for law enforcement officials while respecting the diversity of customary law.

1. The Position of Category II Fines in Living Law Regulations

One of the most significant updates in Government Regulation No. 55 of 2025 is the restriction on customary obligations involving monetary payments. Prior to the enactment of this regulation, customary law in various regions recognized a wide variety of customary fines, varying in form and size, depending on the characteristics of each customary community. There was no national standard for the maximum limit of customary obligations, so the amount of fines was determined entirely by local customary law. This situation has the potential to create disparities between regions, legal uncertainty, and even the possibility of disproportionate sanctions.

To address this issue, Government Regulation No. 55 of 2025 stipulates that customary obligations in the form of monetary payments are limited to a maximum Category II fine, as stipulated in Law No. 1 of 2023 concerning the Criminal Code. This limitation represents a form of harmonization between customary law and the national criminal justice system, ensuring that living law remains within the framework of the rule of law.

These regulations demonstrate that the state has not unified all forms of customary sanctions. Instead, it has set a maximum limit on obligations in the form of monetary payments, while other customary obligations, such as apologies, compensation, traditional ceremonies, restoration of family ties, and other forms of social reparation, remain tailored to the characteristics of each customary law community, as long as they do not conflict with Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and laws and regulations.

Government Regulation No. 55 of 2025 does not provide an explicit explanation of the rationale for selecting Category II fines as the maximum limit for customary obligations. This rationale must be understood through an interpretation of the objectives of the regulations and the criminal system in the Criminal Code.

According to the author's analysis, the use of Category II fines has at least several considerations.

1. Maintaining the application of the principle of proportionality, so that customary obligations in the form of monetary payments do not develop into excessive sanctions or sanctions that are not proportionate to the violation committed.

2. Provide protection for citizens' rights by preventing the emergence of customary obligations that have the potential to be excessive, discriminatory, or contrary to human rights principles.

3. Creating national standards in the implementation of customary obligations so as to reduce the disparities that are too large between one region and another without eliminating the characteristics of each customary law.

4. Emphasizes that the orientation of resolving customary crimes remains directed at restoring social balance. (restorative justice), not on repressive punishment as is characteristic of conventional criminal law.

2. Criteria For Determining Fair Living Law And Guaranteeing Legal Certainty In Indonesian National Criminal Law

In the determination of living law in Law No. 1 of 2023 (National Criminal Code) through Article 2 paragraph (1) opens up space for the application of living law in society (living law) as the basis for criminal prosecution, with three cumulative conditions: in accordance with the values of Pancasila, the 1945 Constitution of the Republic of Indonesia, and human rights. These three conditions are cumulative, meaning that the absence of just one of the conditions is sufficient to disqualify a customary law from qualifying as living law that can be used as the basis for criminal punishment. Article 2 paragraph (2) of the National Criminal Code mandates its technical arrangements through Government Regulations, a mandate that was then realized through PP No. 55 of 2025.

Government Regulation No. 55 of 2025 defines living law as customary law that is still in effect and adhered to by customary law communities. This definition is essentially in line with Eugen Ehrlich's classic concept of living law , which emphasizes norms that are truly practiced in social life, not merely norms contained in official legal texts but not followed in practice. To ensure that only customary law that is truly alive and in effect can be qualified as living law , Government Regulation No. 55 of 2026 stipulates two types of criteria that must be met simultaneously: material criteria and formal criteria.

a. Material Criteria

Material criteria relate to the substance or content of customary law in order for it to qualify as living law valid as criminal law. Article 4 of Government Regulation No. 55 of 2026 stipulates several material criteria that must be cumulatively met.

First, the customary law must be truly alive and adhered to in the lives of the customary law community concerned (actually observed and practiced) . This criterion requires that customary law is not merely known or has been in effect in the past, but is still actively practiced to this day. The Supreme Court has recognized this criterion in several of its decisions. In Decision No. 1644 K/Pid/1988, the judge applied customary fines that are still adhered to by the people of South Sulawesi, while in Decision No. 984 K/Pid/1996, the judge recognized the customary crime of black magic as a basis for prosecution because it is still believed in and adhered to by the local Papuan community. These two decisions demonstrate that the Supreme Court consistently requires empirical evidence of the active application of customary law as a condition for its application.

Second, customary law must be in accordance with societal developments and the principles of the rule of law (rechtstaat) . This criterion ensures that the customary law applied is not static and outdated, but rather adaptive to social change. Barda Nawawi Arief emphasized that customary criminal law, which will be incorporated into national law, must be verifiably relevant to current social conditions. Without this criterion, there is a risk that customary law, no longer relevant to the contemporary societal context, will be enforced, potentially giving rise to injustice and social resistance.

Third, customary law must not conflict with Pancasila, the 1945 Constitution of the Republic of Indonesia, and human rights. This is a direct implementation of the three cumulative requirements stipulated in Article 2 paragraph (1) of the National Criminal Code at the implementing regulation level. These three values function as a constitutional filter that ensures that only customary law that is in accordance with the fundamental values of the state can be applied. Substantively, this third criterion contains what is known in comparative law as a repugnancy clause , which will be discussed in more depth in a separate sub-chapter.

In summary, there are several important points in Article 4 and Article 5. PP No. 55 of 2025, a customary norm can only meet material criteria if it meets the following elements:

1. This norm still lives in society

2. Continuously adhered to

3. Have real customary sanctions

4. Reflecting the sense of justice of society

5. Does not conflict with Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general principles of criminal law.

b. Formal Criteria

In addition to the material criteria related to the substance of customary law itself, Government Regulation No. 55 of 2025 also stipulates formal criteria related to the procedures, methods, and institutions for determining living law . These formal criteria are regulated in Article 5 of Government Regulation No. 55 of 2025. The existence of formal criteria is very important because without them, the determination of living law will depend entirely on the subjective assessment of judges on an ad hoc basis , without predictable and controllable procedures.

First, customary law to be established as living law must undergo a research and review process conducted by an officially appointed team. Article 6 of Government Regulation No. 55 of 2025 mandates the establishment of a Customary Law Research and Review Team at the district/city level, involving academics, traditional leaders, and local government officials. This represents a significant step forward compared to previous practice, where judges often unilaterally established customary law based on their personal knowledge or unverified witness testimony.

Second, customary law must be documented and recorded in official regional documents recognized by the government. This can be a Regional Regulation (Perda), a Regent/Mayor Decree, or an official document from a customary institution that has been approved by the local government. This formal documentation requirement is crucial to guarantee legal certainty (rechtszekerheid) , so that the community, especially those who are not members of customary communities, can know in advance what is prohibited and what the sanctions are. Without adequate documentation, the principles of lex scripta and lex certa in criminal law will be difficult to fulfill, given the nature of customary law, which is generally unwritten and varies between communities.

Third, the establishment of living law must take into account the territorial boundaries of the customary law's applicability (territorial scope) . Customary law does not apply universally, but rather only binds customary law communities in specific areas. Government Regulation No. 55 of 2025 requires a clear determination of the applicability of customary law to prevent its application beyond the boundaries of the community concerned. This is a significant practical issue, given that Indonesia has more than 1,300 ethnic groups with distinct customary laws. Therefore, the potential for overlapping jurisdictions between different customary laws requires serious consideration.

In summary, there are several important points regarding formal criteria in Articles 6 to 14. PP No. 55 of 2025 can be understood through the following stages:

1. Inventory of living laws in society

2. Academic research and studies

3. Verification and evaluation

4. Institutional processes in regional government

5. Determination through Regional Regulations

Conclusion

Recognition of living law is realized through Article 2 of the National Criminal Code, which provides space for customary law as a basis for criminal punishment as long as it meets the cumulative requirements, namely still living in society, in accordance with the values of Pancasila, not contrary to the 1945 Constitution of the Republic of Indonesia, human rights, and general principles of law recognized by the community of nations. These regulations are then further elaborated through Government Regulation Number 55 of 2025, which regulates the mechanisms for identification, research, verification, determination, area of applicability, forms of customary criminal sanctions, and procedures for implementing living law in the criminal justice system. The presence of this Government Regulation provides procedural certainty that was not previously regulated in detail in the Criminal Code. However, the existing regulations still face various challenges, including the absence of a standard operational definition of living law , the absence of a national customary law documentation system, the potential for differences in application between regions, and the absence of an independent institution specifically to test the validity of customary norms. Although normatively Indonesia has accommodated legal pluralism in national criminal law, the effectiveness of its implementation still requires improvement to create legal certainty, uniformity of application, and protection of human rights.

Material requirements include the existence of customary norms that are truly alive and adhered to by customary law communities, in accordance with societal developments, and do not conflict with Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general principles of criminal law. Formal requirements include the identification process and field research, the preparation of academic studies, the formation of a determination team, documentation in Regional Regulations, and the affirmation of the applicable area of customary law in question. In its implementation, judges have a crucial role in exploring, following, and understanding the legal values that exist within the community, while ensuring that the application of living law remains in line with the principles of justice, legal certainty, and the protection of human rights. However, this study found that the mechanism for testing the conformity of customary norms still requires improvement, particularly through the development of clearer operational guidelines, the establishment of a national customary law documentation system ( restatement ), increased participation of customary law communities in the determination process, and the strengthening of periodic evaluation mechanisms. Thus, the establishment of living law not only obtains sociological legitimacy as a living law in society, but also has legal legitimacy that is able to guarantee justice, legal certainty, and benefits in the Indonesian national criminal law system.

Suggestion

The government needs to improve PP Number 55 of 2025 by providing an operational definition. living law Clearer and measurable technical guidelines regarding testing its compliance with Pancasila, the 1945 Constitution of the Republic of Indonesia, and human rights. The government needs to establish a more independent institutional mechanism and strengthen the role of the National Legal Development Agency (BPHN) in systematically documenting ( restatement ) customary law as a guideline for law enforcement officials. Indigenous legal communities need to be actively involved in every stage of identification, determination and evaluation. living law so that the norms established truly reflect the laws that are still alive in society.

The government needs to provide continuous education and training for judges, prosecutors and investigators regarding customary law and its application. living law in the criminal justice system. The government needs to build a national information system regarding living law that is easily accessible and carries out periodic evaluations of the applicability of customary law, particularly to ensure its conformity with societal developments, human rights principles, and the need for national criminal law reform.