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Original Research

LEGAL DISCOVERY BY JUDGE IN THE CUSTOMARY CRIMINAL SANCTIONS: A LEGAL HERMENEUTICS APPROACH

MARKHAM FARIED 1, SLAMET SAMPURNO SOEWONDO 2, SYAMSUDDIN MUCHTAR 3, and SRI SUSYANTI NUR 4.

Vol 19, No 07 ( 2024 )   |  DOI: 10.5281/zenodo.13132379   |   Author Affiliation: Faculty of Law, Hasanuddin University, South Sulawesi, Indonesia 1; Faculty of Law, Hasanuddin University, South Sulawesi, Indonesia 2,3,4.   |   Licensing: CC 4.0   |   Pg no: 531-539   |   Published on: 29-07-2024

Abstract

The legal philosophy used in juvenile criminal decisions must be based on transcendental values for the sake of justice based on belief in one and only God, guided by the principles of the best interest for the children. Type of the study is a normative-legal research by using philosophical, theoretical, and conceptual approach. It was conducted in the Provinces of Bali and West Papua, Indonesia. This paper provides information on the latest trend in research. The results show that the concept of legal discovery by judges in providing additional punishment in the form of fulfilling customary obligations towards children should consider aspects of moral justice and social justice by exploring the legal values that live in society (the living law). Judges have mixed and matched theological and sociological aspects by paying attention to legal values and a sense of justice in their decisions, in these circumstances the Judge has studied things that are meta- juridical in nature, namely the values behind statutory rules with the method of interpreting legal hermeneutics. Legal considerations by judges in the decision also pay attention to the sense of priority of justice enforcers.


Keywords

Children; Criminal Law; Legal Policy; Legal Hermeneutics.