Cohabitation under Article 412 of the Indonesian Criminal Code

A Social Control Theory and Maqāṣid al-Sharīʿah Perspective on Community Protection

Abstract

The phenomenon of cohabitation, defined as living together without a legally recognized marriage, has increasingly developed in Indonesia, generating social and moral concerns as well as a regulatory vacuum prior to the enactment of Article 412 of the new Indonesian Criminal Code (KUHP). This study aims to analyze the criminalization of cohabitation from the perspectives of Social Control Theory and Maqāṣid al-Sharīʿah as mechanisms for societal protection, while examining the relevance of normative and public-benefit-oriented approaches in regulating cohabitation. Employing a normative legal research method with conceptual and philosophical approaches, this study relies on library research and analyzes Article 412 of the Criminal Code through the frameworks of Travis Hirschi’s Social Control Theory and Maqāṣid al-Sharīʿah. The novelty of this research lies in its integration of Social Control Theory and Maqāṣid al-Sharīʿah to assess the criminalization of cohabitation, while proposing a reformulation of Article 412 through the expansion of its absolute complaint-based offense (delik aduan absolut) nature in order to strengthen community protection and enhance the effectiveness of social control. The findings reveal that the criminalization of cohabitation functions as a form of formal state social control intended to reinforce moral norms and encourage compliance with the institution of marriage. However, its effectiveness remains limited due to its classification as an absolute complaint-based offense. From the perspective of Maqāṣid al-Sharīʿah, the provision possesses normative legitimacy because it seeks to safeguard life (ḥifẓ al-nafs) and lineage (ḥifẓ al-nasl), although its relatively lenient sanctions and limited protective measures remain significant shortcomings. Therefore, the reformulation of Article 412 through the expansion of its complaint-based offense mechanism should be considered to strengthen its preventive function and improve societal protection. Accordingly, Article 412 requires further refinement so that it serves not only a repressive function but also educational and preventive purposes in realizing public welfare (maṣlaḥah) and ensuring optimal community protection.