Transformation Of The Principle Of Material Legality In Corruption Offenses: A Critical Review Of The Living Law Article In The National Criminal Code

Abstract

 This study examines the transformation of the principle of material legality in the context of corruption-related criminal acts following the enactment of the National Criminal Code (KUHP) through Law Number 1 of 2023. Article 2, paragraph (1), of the National Criminal Code, which recognizes living Law as a source of criminal Law, creates a fundamental normative tension with the principle of formal legality, which has been the main pillar in enforcing criminal Law against corruption. This study uses a normative legal research method, a statutory approach, a philosophical approach, and a theoretical approach. The results of the study indicate that integrating living Law into the national criminal law system creates a dualistic paradigm that could lead to legal uncertainty in the handling of corruption cases. Although the recognition of living Law is intended to accommodate the values of substantive justice of indigenous peoples, its application in the realm of corruption crimes must be strictly limited so as not to conflict with the principles of lex scripta, lex certa, and lex stricta. The synthesis offered is a normative-teleological limitation on the application of living Law, prioritizing legal certainty without sacrificing substantive justice