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SEKILAS MENGENAI KONSEP NEGARA HUKUM

SEKILAS MENGENAI  KONSEP NEGARA HUKUM

 

Negara Hukum  dikenal dengan terminologi  rechtsstaat  atau  the rule of law, namun demikian keduan konsep tersebut  berasal dari 2 (dua) aliran  yang berbeda. Dogma  rechtsstaat pada hakekatnya  berorientasi  pada sistem hukum  Eropa Kontinental atau Civil Law,  yang dikembangkan oleh para ahli hukum  seperti Immanuel Kant dan Friederich Julius Stahl. Ide mengenai  rechtsstaat mulai populer pada abad ke XVII sebagai akibat dari situasi politik Eropa yang didominasi  oleh absolutisme Raja dalam menjalankan kekuasaannya.

Dogma  the rule of law berorientasi  pada sistem hukum anglo saxon atau common law system, yang  mulai dikenal setelah Albert Venn Dicey pada tahun 1885 menerbitkan bukunya “Introduction to Study of the Law of the Constitution”.  Secara konseptual, Negara hukum berlandaskan  pada keyakinan bahwa kekuasaan negara harus dijalankan atas dasar hukum yang adil dan baik. Prinsip dasar dari negara hukum mencakup 2 (dua), yaitu: 1) hubungan antara yang memerintah dan yang diperintah tidak berdasarkan kekuasaan melainkan berdasarkan suatu norma obyektif, yang juga mengikat pihak yang memerintah; dan 2)   norma obyektif  tersebut  harus memenuhi syarat  tidak hanya secara formal, melainkan dapat dipertahankan berhadapan dengan idea hukum.

Penyelenggaraan tugas pemerintahan atau kekuasaan negara dalam konteks negara hukum harus melalui pendekatan hak asasi manusia (human rights approach). Rights based approach merupakan fokus pendekatan administratur atau aparatur negara, yang meliputi:

  1. Perlindungan hak – hak asasi (protection of fundamental rights);
  2. Asas – asas pemerintahan yang baik (principles of good administration), antara lain: legality, procedural propriety, participation, openness, reasonableness, relevancy, propriety of purpose, legal certainty and proportionality. (Peter Leyland and Terry Woods, Administrative Law Facing the Future: Old Constraints and new horizon,p.8).[1]

Menurut ECS WADE  & G. PHILIPS, terdapat 3 (tiga) unsur  pokok RULE OF LAW, yaitu:

  1. Rule of Law merupakan  konsep filosofis yang dalam tradisi barat berkaitan dengan demokrasi dan menentang otokrasi;
  2. Rule of Law merupakan hukum bahwa pemerintahan harus dilaksanakan sesuai dengan hukum;
  3. Rule of Law  merupakan kerangka pikir politik yang harus dirinci lebih jauh dalam peraturan – peraturan hukum substantif maupun hukum acara;

HEPPLE mengatakan bahwa ciri – ciri Rule of Law modern, adalah:

  1. Universality (universalitas);
  2. Openness (keterbukaan);
  3. Equality (persamaan);
  4. Accountability (pertanggungjawaban);
  5. Clarity (kejelasan);
  6. Rationality (rasionalitas);

Menurut SUNARYATI HARTONO, inti konsep Rule of Law yakni ia harus menjamin apa yang oleh masyarakat dipandang sebagai keadilan, khususnya KEADILAN SOSIAL.

Apabila konsep “rechtsstaat” dibandingkan dengan konsep “rule of law”, akan tampak adanya perbedaan dan persamaan. Perbedaannya adalah bahwa kedua konsep itu ditopang oleh sistem hukum yang berbeda, dimana karakteristik konsep “rechtsstaat” adalah administratif dan karakteristik konsep “rule of law” adalah judicial, pembatasan kekuasaan melalui dokumen konstitusi seperti HABEAS CORPUS ACT antara lain mengatur tentang peradilan yang adil dan tidak sewenang – wenang. Sedangkan persamaan kedua konsep tersebut adalah sama – sama menekankan pada perlindungan Hak Asasi Manusia (protection of fundamental  human rights).

[1] Philipus M. Hadjon, Paulus Effendie Lotulung, dkk., Hukum Administrasi dan Good Governance, Penerbit Universitas Trisakti, Jakarta, Cetakan Kedua, Tahun 2012, hlm. 8.

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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