DEVELOPMENT OF PERSPECTIVE CRIMINAL LAW INDONESIAN NOBLE VALUES

The existence of criminal law is to protect and maintain central values in society. As an independent nation, the applicable criminal law should be in accordance with the noble values that live and develop in Indonesian society. KUHP (WvS) is a product of western colonial law, of course it carries the spirit of colonialism, individalism, and liberalism that is not in accordance with the noble values of an independent Indonesian nation. The development of Indonesian criminal law must be based on Indonesian philosophy, spirit, and values, in terms of ideology (Pancasila), religious/religious, social, political, economic, and cultural aspects that live and develop in society (customary law). Nor should it ignore international developments, because the Indonesian state is part of a civilized international community. Colonial inheritance criminal law that adheres to the teachings of positivist legal law, must be integrated with the teaching of legal historism which is a legal understanding that is considered appropriate and adhered to by the people of Indonesia, so that in Indonesia there is an unwritten criminal law (customary criminal law).


A. INTRODUCTION
The essence of legal development is the promotion and renewal of the law. 1 In the development of Indonesia's national legal system must be followed by the development, renewal or guidance of the substance of the legal system. The substance of the legal system will determine the extent to which the national legal system of Indonesia reflects the new Indonesia and is able to serve the needs of the new Indonesia. Thus in the development of the national legal system must include 1 S.R. Nur. 1985 most strategic stage". 4 Arranging a law, so that the rule of law can be effective in the sense of having a positive impact, according to Soerjono Soekanto as quoted by Barda Nawawi Arief, must pay attention to four things, one of which is the positive written law that exists must have a level of vertical and horizontal synchronization in harmony. 5 However, it must be realized that the law is a political product, which is very colored by various interests, especially the interests of the actors making it, namely the House of Representatives (DPR) 6 and the President, and also other forces owned by the state or outside that, like social, political, economic, and other forces. The law (legislative policy) must be seen as a site of struggle between the forces. He was not in a vacuum at all. Bagir Manan 7 said, as a product -especially the legal method is none other than the will of the maker or the person who gave birth to it. When the law is or becomes one of the functions of power -and this is increasingly dominant -the law is nothing but the embodiment of the will or desire of the forces that determine or are dominant at a particular time or time. So the level of legal empowerment as a product will be determined by the nature and style of the dominant forces which not only influence determining the level of legal empowerment alone. In this context, often heard expressions such as "political will" or more extreme, the law is merely the will of the ruling (command of the sovereign of the adherents of the legal positivism), some even say, the law is a mere instrument of power (as said by Marxisme).
On the basis of such understanding above, therefore, by the DPR and the Government, it is often used as a justification for the existence of the substance of the law which is far from the expectations of the public (less accountable to the public, while the DPR was born to represent the people), and the process of discussion is not transparent and walk for too long. 8 However, it must be endeavored 4 Muladi dan Barda Nawawi Arief. 1998 that the legislative policy in the form of the law is a quality political product, in the sense that it can be accountable to the public, both in the process of making it and in its form and substance. To produce a responsive legislative product in accordance with the wishes of the people, of course by increasing people's participation in drafting the law, it is not enough to be represented only by the DPR or the Regional Representative Council (DPD). In making laws there must be a clear mechanism, there needs to be a public hearing so that people participate in it. 9 It is necessary to socialize the bill that is being drafted so that the public knows and can provide input and criticism.
Many of the DPR's product laws have been identified as not having gone through adequate stages of academic discussion (academic concepts), but are only discussed in and by the proposing department and then directly submitted to the DPR, or proposed by the DPR without first being discussed in academic discussions.
So that many laws, both form and substance, do not reflect responsive 10 and quality legislative products. This fact is not in line with the spirit of national law reform, which must be in favor of the interests of the people and justice, including the development of law relating to the following matters: 11 1) Businesses consisting of activities to improve, reduce, add to the applicable law or replace it with new ones according to the needs, situation and conditions in Indonesia; 2) Meet certain requirements that support the development of truth, justice, and people's welfare based on the 1945 Constitution as a practice of Pancasila; 3) Development of certain philosophical, ethical, and juridical grounds; 4) Development of appropriate language in legislation, so that it can be understood and lived by many people as subjects and objects of law, so that it supports its application; 5) Procurement and participation of law enforcement tools that understand and live up to the meaning of law as a means and basis for the development of truth, justice and welfare; 6) Understanding and appreciation of legal reforms as a form of manifestation of human In updating national law, it is necessary to pay attention to and fulfill certain conditions so that legislative policies are responsive to the needs and awareness of the legal community. As for the requirements which can also be used as a gauge for the quality of legislative products, according to Arief Gosita, are as follows: 12 1) Positive Rational; 2) Can be accounted for; 3) Useful; 4) Develop a sense of togetherness, harmony, unity, and unity; 5) Developing the truth, justice and welfare of the people; 6) Stipulating the perspective of interests that are regulated/served and not the perspective of interests that govern/serve; 7) As a practice of Pancasila; 8) Based on law integrally; 9) Based on ethics; 10) Developing the relevant human rights and obligations; 11) Cannot be used as a legal basis for abusing position, authority, power, and power for personal or group interests; 12) Develop a response/justice that restores; 13) It is not a victim factor; 14) Not a criminogen factor; 15) Support the application of management elements: cooperation, coordination, integration, synchronization, and simplification; 16) Based on an exact image of the object and subject of law, as a human being of the same dignity and status; 17) Developing five senses, namely sense of belonging, sense of responsibility, sense of commitment, sense of sharing, and sense of serving.
With a different formula, Lon Fuller in his book The Morality of the Law, argues that the ideals of the rule of law so that rules are fair. On his bePagef various principles have been developed as guidelines in making law, so that the fair nature of the legal rules can be encouraged. The principles referred to are: 1) There must be rules as guidelines in making decisions. Fuller also spoke of the requirements for generality. Giving legal form to the authorities means that authoritative decisions are not made on an ad hoc basis (temporary) and on the basis of a free policy, but on the basis of general rules. 2) Rules which become guidelines for authority must not be kept secret, but must be announced. 3) Rules must be made to guide future activities.
They should not be made retroactive. A special application of this requirement is the principle of criminal law nulla poena sine lege (there is no penalty without a rule of law). 4) Laws must be made in such a way that it can be understood by ordinary people (desire for clarity), 5) Rules must not conflict with each other. 6) Rules may not require behavior that is beyond the ability of the affected parties. In other words, the law must not order something that is not possible. 7) In law there must be firmness. The law must not be changed every time so that people can no longer orient their activities to it. And 8) There must be consistency between the rules as announced and the actual implementation. 13 However, it needs to be realized, that the quality of legislative policies produced by the DPR and the President (Government), is very dependent on the quality of the members of the legislative body (DPR) and the Government itself.
Anton F. Susanto said that in the formation of laws by institutions that are authorized to form the law can not be separated in relation to personal life, character, nature and other social problems. There are several things that affect the process of the formation of law and the implementation of law, namely: 1) his personality; 2) its social origins; 3) his own level of development; 4) economic interests; 5) political beliefs; and 6) view of life. 14 In the above constellation, the general election of legislative members and presidential elections becomes very crucial. Because if those chosen are not among the people who have good quality related to the 6 things above, then the products or legislative policies that they will produce will also not have good or adequate quality too.
According to G.P. Hoefnagels, legal policy is an integral part of social policy; or in other words, social policy encompasses legal policy, which in full is said to be a law enforcement policy. 15 So thus, the legislative policy and law enforcement policy is part of social policy. 16 In Sudarto's view, legal politics or legal policy is an attempt to realize good regulations in accordance with the circumstances and situations at one time. 17  establish the desired regulations which could be expected to be used to express what is contained in society and achieve what is aspired. 18 Whereas social policy, according to Barda Nawawi Arief, is all rational efforts to achieve community welfare and at the same time include community protection. So in terms of "social policy" as well as including "social welfare policy" and "social defense policy". See also Padmo Wahyono. 1986. Indonesia Negara Berdasarkan Atas Hukum. Jakarta: Ghalia Indonesia. Page. 160.
"National legal politics is a basic policy that determines the direction, form and content of the law to be formed. Another aspect of the legal pulitik is about the values, determination, development, and giving form".
"Political law as legal policy (legal policy) which will or has been implemented nationally by the government.
See also Syofrin Syofyan dan Asyhar Hidayat. 2003. Hukum Pajak dan Permasalahannya. Bandung: Refika Aditama. Page. 4-5 "Political law is national is a statement of the will of the state through legislators (legislative), carrying out legal policies to form a legal choice that is applicable and developed in accordance with state objectives based on policies that will or have been implemented by the government" 19 Barda Nawawi Arief. 1996 b. There is an integration between overcoming crime with "penal" and "nonpenal".
Criminal law policy, according to Marc Ancel, is "a science as well as an art that ultimately has a practical goal to enable positive legal regulations to be better formulated and to provide guidance not only to legislators, but also to the courts that apply the laws and also to the organizers or executors of court decisions ". 22  In a different terminology, because it is actually focused on renewing material criminal law, but according to the author it is also appropriate to reform/making formal criminal law policy, Muladi 26 provides a benchmark of characteristics that must be considered in making a future criminal law policy, namely: First, the coming national criminal law must meet sociological, political, practical, and also within Indonesia's ideological framework.
Second, future national criminal law must not neglect aspects related to the human condition, nature, and Indonesian traditions.
Third, the coming national criminal law must be able to adjust to the universal tendencies that grow in the association of civilized society.
Fourth, because the criminal justice system, criminal politics, and law enforcement politics are part of social politics, the future national criminal law must pay attention to preventive aspects; Fifth, the coming national criminal law must always be responsive to the development of science and technology in order to increase the effectiveness of its functions in society.
In line with the above thought, efforts to function for criminal law functionalization must also seriously consider: National development goals, Actions  1946, Law No. 73/1958, Law No. 1/1960, Law No. 16 / Prp / 1960, Law No. 18/1960, Law No. 1 / PnPs / 1965, Law No. 7/1974, Law No. 4/1976, Law No. 3/97, Law No. 27/1999, Law No. 20/2001, Law No. 21/2007 violates the laws (written rules) that existed before the act was committed. If the act committed is not/has not yet been prohibited in criminal law, even though the act is very evil and is contrary to customary law or a sense of community justice or values that live in the community, the perpetrator still cannot be convicted.
In short sentences it can be said that according to Article 1 of the Criminal Code, living law (unwritten law or customary law) cannot be used as a source of criminal law. 28 The reality of the law above disturbs the sense of justice in the community, therefore although the existence of the principle of legality in the Criminal Code is not disturbed (amended), but with a number of laws and regulations the existence of customary (criminal) law is recognized in the practice of criminal law. The legal phenomenon does not stand alone. It is united in the character of the people thanks to the unity of the people themselves. The law did not arise by chance, but was born from the inner consciousness of the people. That is why the law develops according to the development of the people, and eventually disappears when the people lose their nationality. Article 2 paragraph (2) of the Criminal Code Bill is expected to be a criterion or guideline for judges in establishing "living law in society" as a source of law (a source of material legality). Criteria (1) departs from "national guidelines" (values / principles of Pancasila) and criteria (2) departs from "international guidelines" (referring to the term "the general principles of law recognized by the community of nations" in Article 15 paragraph 2 of the ICCPR).
That is a glimpse of the prospect of the position of noble values of Indonesia (unwritten law/customary law) in the renewal of Indonesian criminal law. Although there is only one or two amendments to the Criminal Code Bill, it has a strategic and philosophical value because it has given place to the application of noble values of Indonesia (customary criminal law) in Indonesian criminal law.

C. CLOSING
Building a criminal law in Indonesia means building a legal system (criminal) in Indonesia, which means developing the substance of criminal law (material and formal), legal structure (official criminal justice system/law enforcement officers), and legal culture. Development of legal substance -without intending to reduce the role of other fields -is a very important and fundamental activity, especially in the field of criminal law which has harsh characteristics (often said to be "cruel") compared to other legal fields. Therefore, in the development of Indonesian criminal law, attention must be paid to all aspects, namely ideology (Pancasila), religion, social, politics, economy, culture that live and develop in society (customary law). It should not even ignore international developments, because the Indonesian state is a part of a civilized international community. The Criminal Code, which adheres to the principle of absolute legality, follows the doctrine of legal positivism, which does not give place for the enactment of unwritten law (customary law) as a source of criminal law. However, there are philosophical basic changes that lead to the adoption of the teachings of legal historism by making unwritten laws that live in the 31 Ibid 32 Ibid