Implikasi Pengakuan Hukum yang Hidup dalam Masyarakat Terhadap Fungsi Penyidikan Satuan Reserse Kriminal Berdasarkan Pasal 2 Ayat (1) KUHP Nomor 1 Tahun 2023

Abstrak

The provision in Article 2, Paragraph (1) of the Criminal Code (Law No. 1 of 2025) represents a significant breakthrough in Indonesia's criminal law policy. This provision is grounded in the concept of equal or balancing the principle of legality (regarding written law) with the principle of "living law" (law existing within the community) as a basis for both establishing and absolving criminal liability. In practice, the application of living law significantly impacts the investigative functions of the Criminal Investigation Unit of the Indonesian National Police; historically, investigations have been guided by written legal provisions rooted primarily in the principle of legality, whereas living law is based on unwritten law, customary law, and/or customary criminal law. Implications for the investigative function include: first, a lack of clear normative parameters; second, the potential for conflict between positive law and customary law; third, concerns regarding potential criminalization and human rights violations; and fourth, the emergence of diversified approaches to penalization. Additionally, other factors affecting the investigative function include the inherent nature of applying living law—specifically the lack of a clear distinction between criminal and civil matters, the imposition of collective criminal liability without a clear basis, and the disregard for the issue of criminal capacity.