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KESADARAN HUKUM, SUATU ORIENTASI

KESADARAN HUKUM, SUATU ORIENTASI

 

Menurut sejarahnya, fenomena permasalahan kesadaran hukum  (legal awareness)  timbul dalam rangka  mencari dasar sahnya hukum yang merupakan konsekwensi dari masalah yang timbul didalam penerapan tata hukum  atau hukum positif tertulis (written positve law). Dalam perkembangannya, kajian mengenai  kesadaran hukum selanjutnya  menjadi wacana diskusi mencakup persoalan  “apakah dasar sahnya hukum adalah pengendalian dari penguasa atau kesadaran warga masyarakat”.

Wacana   “dasar sahnya hukum”, menjadi perdebatan yuridis  karena dalam kenyataan ada hukum yang berlaku tetapi  tidak ditaati oleh warga  masyarakat sebagai suatu aturan yang mengikat. Fokus masalahnya berorientasi  pada hukum didalam arti tata hukum. Sebagai perbandingan dapat dikemukakan  misalnya berkaitan dengan pertanyaan:  “apakah yang menjadi dasar sahnya Undang – Undang Pokok Agraria (Undang – Undang Nomor 5 Tahun 1960), yaitu pengendalian dari penguasa atau kesadaran warga masyarakat”.  Jawaban atas pertanyaan tersebut  sangat penting,  agar  dapat mengukur efektivitas keberlakuan suatu undang – undang dalam kehidupan bermasyarakat dan bernegara, yang antara lain tergantung pada ketaatan atau kepatuhan para warga masyarakat, termasuk pemimpin – pemimpinnya.

Disamping fenomena yuridis mengenai “KESADARAN HUKUM”, terdapat pula  anggapan yang menyatakan bahwa “kesadaran hukum bukan merupakan suatu penilaian hukum terhadap peristiwa – peristiwa konkrit. Kesadaran hukum merupakan suatu penilaian terhadap apa yang dianggap sebagai hukum yang baik dan/atau hukum yang tidak baik”. Dalam hal ini, penilaian terhadap hukum  didasarkan pada tujuannya, yaitu apakah hukum tadi adil atau tidak (fair or unfair), oleh karena pada hakekatnya warga masyarakat mengharapkan atau menghendaki adanya keadilan dalam interaksi kehidupan bersama.

Apabila tata hukum (hukum positif) yang ada dipakai sebagai titik tolak kajian diskusi/perdebatan, maka pungutan liar (illegal fees)  adalah bertentangan dengan peraturan perundang – undangan  maupun bertentangan dengan hukum (onwetmatig  dan onrechtmatig). Karakter, perilaku, sikap dan budaya PUNGUTAN LIAR (PUNGLI) demikian  bukan merupakan “kesadaran hukum”. Suatu kesadaran hukum dianggap ada, bila misalnya, seseorang memberikan penilaian apakah peraturan tertulis yang mengatur soal pemakaman di wilayah DKI Jakarta adalah adil atau tidak adil.

Kesadaran hukum merupakan suatu proses psikis yang terdapat dalam diri pribadi manusia, yang mungkin timbul dan mungkin pula tidak timbul (dipengaruhi oleh berbagai situasi dan kondisi). Namun demikian,   “kesadaran hukum” pada hakekatnya  terdapat pada setiap diri  manusia, oleh karena setiap manusia mempunyai rasa keadilan (each people has a sense of justice).  Oleh karena itu secara umum  dapat disimpulkan  bahwa  kurang tepat untuk merumuskan postulat  bahwa tata hukum Indonesia harus dibentuk atas dasar kesadaran hukum masyarakat atau rakyat., akan tetapi yang tepat adalah  tata hukum Indonesia harus dibentuk atas dasar asas kesadaran hukum warga masyarakat, yaitu rasa keadilan.

Penilaian mengenai hal  “adil tidaknya”  hukum positif tertulis senantiasa tergantung pada taraf persesuaian antara rasa keadilan pembentuk hukum dengan rasa keadilan warga masyarakat yang kepentingan – kepentingannya diatur oleh hukum tersebut. Secara logis maka prosesnya adalah bahwa seseorang harus memahami hukum tersebut, sebelum dia mempunyai kesadaran hukum. Munculnya Kesadaran hukum masyarakat didorong oleh sejauhmana kepatuhan kepada hukum yang didasari oleh indoctrination, habituation, utility dan group identification. Menurut Yahya Harahap (Heri Tahir 2010:116) bahwa faktor – faktor yang mempengaruhi kesadaran hukum yaitu: (1) Faktor kecerdasan masyarakat, (2) faktor tingkat kehidupan sosial ekonomis (3) faktor latar belakang budaya yang masih diliputi sikap paternalism, dan (4) faktor penyuluhan hukum  yang efektif.

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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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