According to Soerjono Soekanto, one of the elements of law enforcement is the community. Law enforcement comes from the community. It has a goal to reach peace in society. Thus, viewed from a particular point of view, the community will be able to influence the enforcement of the law. Society is a social group. As a social group, society cannot be static. However, it always develops and undergoes some changes both in activity and form, including formulating norms that bind its members. To produce culture, people will live together.
Selo Soemardjan and Soelaeman Soemardi defined culture as all the creations, tastes, and creations of the society. Community work will produce technology and material culture or physical culture required by humans for controlling the surrounding nature, so that their strengths and results can be devoted to the needs of the society. For your information, culture has universal elements, including:
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- Equipment and supplies for human life such as housing, household appliances, clothing, weapons, means of production, transportation, and others.
- Livelihoods and economic systems such as agriculture, production systems, livestock, distribution systems and so on.
- Social system such as political organization, kinship system, legal system, and marriage system.
- Language (written and oral).
- Arts such as sound arts, visual arts, motion arts and so on.
- Knowledge systems
- Belief system (religion and so on).
As an element of culture and as an element of law enforcement, society plays an important role in making or determining the direction of the law itself. Usually, the society that makes the law is an undeniable condition. However, what is still being debated is whether the law will follow changes in society or does society will change following changes in law.
As adopted by Mochtar Kusumaatmadja, Roscoe Pound created the idea of Law as a tool o social engineering, that the law is a tool to realize social changes. In order to create order in Society, the law should be in the forefront for the community to follow, not the other way around, the law is constantly changing following changes in society. Like a human who walks through a road which has never been passed. Then, there is a big hole in the road, do you have to wait until someone falls into that big hole and then put up a signboard, or put the signs first before someone else falls into the hole. In fact, in society, people will be let to fall into a big hole before making signs instead of making signs before someone falls. As one of the products of society and part of culture, the situation of society and the law are still following changes, not as the leaders or guidelines which must be followed by the community.
The community will specify the law, including specifying what actions are disliked or prohibited by the community or what are called crimes. In the sense of social groups, communities surely have the types of actions which are prohibited. However, not all actions which are prohibited by one community are declared prohibited by another community. For instance, tradition of the Lombok Sasak tribe before the marriage takes place is to kidnap the bride-to-be. Until today, this tradition is still valid. The tradition of the Sasak people is different from the culture of the Javanese people where the tradition before the marriage is to apply for a prospective bride. In Javanese society, kidnapping a prospective bride is a crime. It violates the tradition and norms of society, however, not for the Sasak people. Also, according to Indonesia’s positive law, kidnapping the bride-to-be is a crime. It deprives a person of independence. And, it is threatened with criminal sanctions. However, the Sasak people do not consider it a crime.
Apparently, there is a fundamental difference between crime and criminal act. So, what exactly is a crime? And, what are the limits of what is categorized as a crime? In his book Dei Deliti e Delle Pene, Cesare Beccaria implicitly mentions that crime will take various forms. Usually, big and small will depend on the harm caused to the society. According to this opinion, it can be interpreted that crime is anything which harms society, whether the loss is big or small. The issue that arises is that not all dangerous things are regulated by the state in the form of law. Here is another example. It is the practice of witchcraft that until today the formulation is still experiencing a lot of debate among Indonesian criminal law experts. Usually, in Indonesia, any society knows witchcraft in various forms and ways. However, Indonesian positive law has not been able to reach this, particularly regarding the proof. In this case, Mabel A. Elliot defines it as a crime in terms of social problem, psychologies problem and legal social problem.
Based on the Sociological point of view, crime is one of the most serious issues of social disorganization. Criminals engage in activities which are harmful to the basics of government, law, order, and social welfare. Based on the psychological point of view, crime is an act committed by a criminal, is an act of the same people as us. From the community’s point of view, crime is a deviant behavior. From a social legal point of view, crime is any act or failure to perform an act which is prohibited or required by law. In fact, Mabel Elliot’s view does not see crime issues as the main object of criminology in the perspective of formal crimes or crimes which are prohibited by the law, but crimes which are in the form of deviant behavior in society.
Talking about this, Bohm and Haley are simpler in defining crime. They said that crime can be viewed from two types of understanding, social understanding, and legal understanding. In a social sense, crime is behavior which violates social norms. It can be said as anti-social behavior. In the legal sense, crime is defined as a violation aimed at the rule of law, committed without permission, and sentenced by the state. This opinion becomes the basis for differentiating between crimes and criminal acts.
Criminology will distinguish between crime and criminal acts. The scope of the object of criminology study is crime, not criminal acts. Thus, it is necessary to distinguish between crime and criminal acts. The most appropriate distinguishing criterion to distinguish between the crime and criminal acts is as the opinion of Bohm and Haley. Unfortunately, to determine whether the act is a crime have not found common ground. Sometimes, one act in one society is interpreted differently in another society. Edwin H. Sutherland and Donald Cressey give seven criteria for acts which are categorized as crimes. Those opinions do not distinguish between crimes and criminal acts so that those opinions are less relevant to define the criteria for crime according to the society.
Every act which is considered a crime in a society can be interpreted differently by other people. However, the universal principle that can be utilized as a direction as an act which is categorized as a crime by the community is when the act:
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- Harming the members of the community.
- Being reproached as an act which is not commendable in society.
- Regulated as an act which is prohibited in the norms of society.
- Has the threat of sanctions for the violators.
The reason why it is necessary to distinguish between crime and criminal act is related to the position of criminology, criminal law in scientific disciplines and the object of criminology as a scientific discipline. Both will be described in the next subchapter on Crime and Criminology and the Definition and Scope of Criminology.
A bookworm and researcher especially related to law and citizenship education. I spend time every day in front of the internet and the campus library.
