Academic journal article Journal of Legal, Ethical and Regulatory Issues

Humanistic Criminal Law Enforcement to Achieve Spiritual Justice

Academic journal article Journal of Legal, Ethical and Regulatory Issues

Humanistic Criminal Law Enforcement to Achieve Spiritual Justice

Article excerpt

INTRODUCTION

Law enforcement including criminal law enforcement is a series of processes of applying abstract values, ideas and legal ideals to legal objectives. The purpose of law or ideals contains moral values such as justice and truth. In addition to the law can be enforced the legal order must be in accordance with the community where the law will be enforced (Rahardjo, 2008). Given the nation of Indonesia as a religious nation because every citizen embraces the religion based on the Supreme Godhead, as formulated in the First Precept of Pancasila, therefore Indonesian law must also have a spiritual characteristic that reflects religious values. Moreover, criminal law enforcement is always in touch with human rights, so the success of its enforcement is expected because this is where the meaning of "Indonesia Country based on the law" is at stake (Sunarto, 2008).

Based on the failure of law enforcement conventional crime which is positivistic because it is only limited to the fulfilment of formal procedure in eradication of crime and susceptible to deviation (Muladi, 1995)1. Therefore, a new approach in criminal law enforcement is required that places the interests of the nation and the state or the economic and social rights of the people in addition to the interests and rights of individual suspects or defendants. The new approach is 'humanistic law enforcement' through the application of progressive legal principles (Nawawi, 1998)2. The existence of humanistic criminal law enforcement is expected to realize the spiritual justice that is created based on the application of the values of Belief in the Almighty God in the process of law enforcement (Barda, 2011)3.

The research method used in this paper is normative juridical by using legislation approach, doctrinal approach, conceptual approach and comparative approach. Operationally this approach is done by literature and documentary studies on legal principles, legal norms and legal theories relating to legal issues studied. This research focuses on research of legal inventory and discovery of legal principles.

DISCUSSION

The study of criminal law enforcement which is humanistic using progressive approach, the focus of the study is the regulation and the behaviour of law enforcement apparatus. While the study of spiritual justice is restricted only based on the divine value according to Islam. The criminal law as the reflection of progressive law principles are the criminal law which its arrangement using other than socio-legal studies approach, also should mind 3 basic policies in order to enforce criminal law; such as (1) policy about what forbidden acts to be overcome as it considered dangerous or disadvantageous; (2) policy about what sanction that may be imposed against forbidden acts' subject and its implementation; (3) policy about criminal justice procedure/mechanism in the framework of criminal enforcement process (Muladi and Barda, 1992).

The criminal applicable laws and regulations arrangement without considering the references as mentioned above will deliver criminal applicable laws and regulations which lost its criminal legal nature, even the intended legislation can be used as a tool to commit crimes or covertly legalized crimes. In this connection according to Packer, if criminal law is used indiscriminately and coercively, then the principles of criminal law will lose its nature as prime guarantee even will be the prime threatened (Packer, 1968). This happened a lot in Indonesian applicable laws and regulations during the New Order as found by Masyarakat Transparency Indonesia, until 1998 there were more than 64 of Presidential Decree nuances of collusion, corruption and nepotism that protect one's interest or certain groups (Warassih, 2005).

The effort in order to not create a negative effect on its enforcement, so since the arrangement must consider or accommodate the humanity value as the realization of society legal interest where the criminal applicable laws and regulations are enacted. …

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