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HUKUM DALAM CENGKRAMAN KEKUASAAN

HUKUM DALAM CENGKRAMAN KEKUASAAN

HUKUM  dan KEKUASAAN  merupakan 2 (dua) alat/perangkat  (instruments) yang berbeda namun saling mempengaruhi satu sama lain (to influence each others). Hukum adalah suatu sistem aturan – aturan tentang perilaku manusia yang pantas atau ajeg (yang boleh dilakukan dan yang tidak boleh dilakukan/dilarang). Cakupan  hukum tidak merujuk pada satu aturan tunggal, tapi dapat disebut sebagai kesatuan aturan yang membentuk sebuah sistem (legal system). Pada sisi lain, kekuasaan (power, authority)  adalah kemampuan (capability)  seseorang atau suatu kelompok/suatu pihak  untuk mempengaruhi perilaku seseorang atau kelompok lain/pihak lain baik secara langsung maupun tidak langsung, sesuai dengan keinginan orang atau kelompok/pihak  yang mempunyai kekuasaan tersebut. Konsepsi ini sesuai dengan adigium “pihak yang lebih berkuasa lebih besar pula wewenangnya (plus potest qui plus valet)“.

Hukum dan kekuasaan saling berinteraksi, berkorelasi bahkan saling mempengaruhi satu dengan yang  lain. Kekuasaan memerlukan  sebuah “LEGITIMASI HUKUM” (legitimacy of law) agar dapat memperebutkan dan mempertahankan kekuasaan atau “KEKUASAAN POLITIK”  (political power).

Menurut Lasswell dan Kaplan, yang pada pokoknya menyatakan bahwa kekuasaan adalah hubungan atau relasi antara seseorang atau kelompok terhadap kelompok lainnya dimana salah satu individu atau kelompok mampu melakukan penentuan (determination) untuk mempengaruhi orang atau kelompok  yang lain.

Kekuasaan sebagai suatu alat  merupakan salah satu sarana yang paling banyak dan sering (intensive) dipergunakan  dalam interaksi kegiatan politik (political activities). Sebagai suatu kesimpulan (conclusion) dapat dinyatakan bahwa apabila  tujuan utama suatu kebijakan politik (political policy)  adalah memperoleh dan mempertahankan kekuasaan, maka dalam konteks ini kekuasaan yang dimaksud adalah “POLITIK KEKUASAAN” (politics of power).

Politik (dari bahasa Yunani: politikos, yang berarti dari, untuk, atau yang berkaitan dengan warga negara), adalah proses pembentukan  dan pembagian kekuasaan dalam masyarakat yang antara lain berwujud proses pembuatan keputusan, khususnya dalam negara.  Pengertian ini merupakan upaya penggabungan antara berbagai definisi yang berbeda mengenai hakikat politik yang dikenal dalam ilmu politik. Politik adalah seni dan ilmu untuk meraih kekuasaan secara konstitusional maupun nonkonstitusional.

Kekuasaan dari akar kata “kuasa”  dan politik yang berasal dari bahasa Yunani Politeia (berarti kiat memimpin kota (polis)). Sedangkan kewenangan  dan kekuasaan kerap dikaitkan dengan kemampuan untuk membuat aktivitas (activity)  yang tanpa adanya  kewenangan  (kekuasaan)  maka aktivitas tersebut tidak akan terjadi atau terlaksana.

Politik berasal dari bahasa Belanda  yaitu  “politiek”  dan bahasa Inggris yaitu  “politics”, yang masing-masing bersumber dari bahasa Yunani yaitu  “τα πολιτικά” (politika, yang berarti “yang berhubungan dengan negara) dengan akar katanya “πολίτης”  (polites, yang berarti “warga negara”) dan “πόλις”  (polis, “negara kota“). Secara etimologi kata “politik” masih berhubungan dengan diskresi, kebijakan. Kata “politis” berarti hal-hal yang berhubungan dengan politik. Kata “politisi” berarti orang-orang yang menekuni hal politik.

Perspektif atau pendekatan sistem melihat keseluruhan interaksi yang ada dalam suatu sistem yakni suatu unit yang relatif terpisah dari lingkungannya dan memiliki hubungan yang relatif tetap diantara elemen-elemen pembentuknya. Kehidupan politik dari perspektif sistem bisa dilihat dari berbagai sudut, misalnya dengan menekankan pada kelembagaan yang ada kita bisa melihat pada struktur hubungan antara berbagai lembaga atau institusi pembentuk sistem politik. Hubungan antara berbagai lembaga negara sebagai pusat kekuatan politik misalnya merupakan satu aspek, sedangkan peranan partai politik dan kelompok-kelompok penekan merupakan bagian lain dari suatu sistem politik. Dengan merubah sudut pandang maka sistem politik bisa dilihat sebagai kebudayaan politik (political culture), lembaga-lembaga politik, dan perilaku politik.

Dalam konteks yang berbeda perlu pula dijelaskan bahwa  tindakan dari pengadilan adalah sebuah tindakan kemauan yang ditujukan pada tingkah laku dari suatu badan yang lain, badan eksekutif, dan dengan demikian adalah sebuah tindakan memerintah atau komando (act of command). Secara subyektif, makna dari setiap tindakan memerintah adalah memaksakan suatu  “keharusan” (ought).

Pemerintah adalah organisasi yang memiliki kekuasaan untuk membuat dan menerapkan hukum (the power to make and implement law or regulation) serta peraturan perundang – undangan  di suatu wilayah negara  tertentu.

Hukum  adalah sistem jejaring yang terpenting dalam pelaksanaan atas rangkaian kekuasaan kelembagaan (institutional power).  Administratif hukum digunakan untuk  mengoreksi dan meninjau kembali keputusan pemerintah (government decision), sedangkan  Hukum  Internasional (International Law) pada hakekatnya mengatur persoalan antara kedaulatan  negara (state sovereignty) dalam interaksi berbagai  kegiatan mulai dari perdagangan/niaga (trading), lingkungan (environment), peraturan – peraturan (regulations) atau tindakan militer (military action). Filsuf  Yunani yang bernama   Aristoteles menyatakan bahwa “Sebuah supremasi hukum akan jauh lebih baik  dibandingkan dengan peraturan tirani yang merajalela”.

About Author: Appe Hamonangan Hutauruk

Appe Hamonangan Hutauruk selaku Penulis tunggal pada Website: "Law Firm Appe Hamonangan Hutauruk & Associates" adalah seorang "Pegiat Penegakkan Hukum dan Hak Asasi Manusia" serta "Pemerhati Sosial Kemasyarakatan" yang berprofesi sebagai Advokat (Advocate), Konsultan Hukum (Legal Consultant) dan Dosen (lecturer) pada salah satu Universitas swasta di Jakarta, selain itu juga menduduki jabatan sebagai Ketua Umum pada Lembaga Swadaya Masyarakat (LSM) bernama "Komunitas Masyarakat Anti Korupsi dan Penggelapan Pajak (KOMAKOPEPA). youtube.com/c/BeritaHukumKebijakanPublik

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