Overview

Original Research

DECONSTRUCTION OF THE PRINCIPLE OF LEGALITY IN CRIMINAL LAW AS AN EFFORT TO REALIZE PROCEDURAL AND SUBSTANTIVE JUSTICE

YONAR HARADA TAQUAS ELTA 1, ELWI DANIL 2, KURNIA WARMAN 3, and YOSERWAN 4.

Vol 19, No 05 ( 2024 )   |  DOI: 10.5281/zenodo.11408631   |   Author Affiliation: Mahasiswa Doktor Hukum, Fakultas Hukum, Universitas Andalas, Indonesia 1; Guru Besar Hukum, Fakultas Hukum Universitas Andalas, Indonesia 2,3; Dosen Hukum Fakultas Hukum Universitas Andalas, Indonesia 4.   |   Licensing: CC 4.0   |   Pg no: 600-617   |   Published on: 31-05-2024

Abstract

The principle of legality contained in Article 1 paragraph (1) of the Criminal Code (KUHP) emphasizes the principle of 'no delict, no crime without criminal provisions that precede it,' which emphasizes procedural justice. This principle of legality, contrary to Article 5 paragraph (1) and Article 10 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power, regulates the opposite, namely more emphasis on substantive justice, thus causing a blurring of meaning in the principle of legality. This study aims to understand, find, and deconstruct the principle of legality in criminal law to realize procedural and substantive justice. This methodology uses normative legal research with philosophical, statutory, and hermeneutic approaches. The results of this study concluded that the development of the principle of legality in criminal law that is understood today is inseparable from the paradigm of positivism through Article 5 paragraph (1) and Article 10 paragraph (1) of the Law on Judicial Power, this principle of legality has undergone a shift in meaning. Testing the principle of legality with the falsification method, it was found that the principle of legality was uncorroborated (not solid) as a universal statement. Hence, the truth of the principle of legality was only probable. The conflict between Article 1 paragraph (1) of the Criminal Code, Article 5 paragraph (1), and Article 10 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power can be resolved by applying discretion proportionally and reinterpreting the objectives of the law, namely, law in terms of justice, practicality in terms of sociology, and certainty in terms of political ethics, with the application of this, can find a common denominator between procedural and substantive justice on the principle of legality in criminal law.

Keywords

The Principle of Legality, Deconstruction, Paradigm, Falsification, Fairness, Procedural, Substantive.