Moral Criminalization and the Illusion of Humanism in Indonesia’s National Criminal Code

Abstract

This article critically examines the political direction of Indonesia’s National Criminal Code (Law No. 1 of 2023) by interrogating the tension between its proclaimed humanistic orientation and its expansive approach to criminalization. Positioned as a landmark project of legal decolonization, the new Code seeks to replace the colonial penal legacy with a framework grounded in restorative justice, proportional punishment, and the recognition of living law. Using doctrinal legal analysis and critical political–legal theory, this study analyzes key normative shifts, including the introduction of non-custodial sanctions, the reconfiguration of penal objectives, and the expansion of criminal liability into the domains of private morality, freedom of expression, and customary norms. The findings reveal a structural paradox: while the Code softens modes of punishment, it simultaneously broadens the scope of punishable conduct, particularly through morality-based offenses, insult provisions protecting state authority, and the incorporation of unwritten law into the legality principle. This dual trajectory suggests not a retreat of state power, but its rearticulation through subtler and more pervasive forms of social control. The article concludes that the National Criminal Code embodies a form of selective humanism-humanistic in sanctions yet illiberal in norms posing significant risks to legal certainty, civil liberties, and democratic accountability unless constrained by rigorous constitutional interpretation and rights-based enforcement.