Can Criminal Cases be Settled Amicably? (From the Perspective of Positive Law and Islamic Law)

Abstract

This study discusses the settlement of criminal cases through a familial approach from the perspective of positive law and Islamic law. The focus of the study is directed at the interaction between formal legal principles in the Criminal Code (KUHP) and alternative dispute resolution mechanisms, including mediation and restorative justice. Meanwhile, from an Islamic law perspective, the principle of sulh (peace) is an important basis that allows certain criminal cases to be resolved through deliberation. This study uses a normative qualitative approach by examining legal literature, regulations, and the opinions of classical and contemporary scholars. The results of the study show that the settlement of criminal cases through family channels has limited scope in positive law, namely in minor criminal offences, certain criminal offences with complaint offences, and the implementation of restorative justice in accordance with the regulations of the Supreme Court and the Attorney General's Office. Meanwhile, in Islamic law, broader opportunities are provided as long as they are not related to hudud and qishash, but rather jarimah ta'zir, which is entirely at the discretion of the authorities. This researcher concludes that the synergy between positive law and Islamic law in the application of family-based resolution can strengthen the principle of legal benefit in Indonesia.