Customary Law and Multiple Legal Systems in Criminal Justice: Indonesia's Penal Reform Experience

Abstract

Indonesia's 2023 Penal Code represents a groundbreaking shift from colonial legal monism to constitutional pluralism by recognizing "living law" as a legitimate criminal law source. However, this historic constitutional acknowledgment encounters severe implementation challenges, creating institutional paralysis and intensifying customary law disputes. This qualitative study combines normative legal analysis with comparative case methodology, examining four customary systems: Batak Dalihan Na Tolu, Javanese Rukun, Balinese Desa Adat, and Papua Clan System. The research reveals critical implementation gaps across constitutional, judicial, and community levels, where uniform approaches fail to accommodate Indonesia's 1,300+ diverse customary traditions. Implementation failures manifest through constitutional ambiguity generating legitimacy crises, judicial uncertainty producing inconsistent applications, and community marginalization that transforms dynamic oral traditions into rigid bureaucratic processes. These cascading challenges systematically undermine the constitutional promise of legal pluralism. To address these failures, the study proposes a Managed Legal Pluralism framework structured around four interconnected pillars: Recognition, Regulation, Implementation, and Safeguards. This framework enables differentiated approaches accommodating varying customary compatibility levels while ensuring constitutional compliance. Cross-national analysis with South Africa and Canada validates this integration approach, highlighting risks of excessive formalization while demonstrating pathways for transforming symbolic recognition into effective legal pluralism that balances human rights protection with cultural preservation.