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SOCIOLOGICAL JURISPRUDENCE

SOCIOLOGICAL JURISPRUDENCE

 

Pelopor mazhab “sociological jurisprudence” yang sangat terkemuka antara lain, Roscoe Pound, Eugen Ehrlich, Benyamin Cardozo, Kantorowics, Gurvitch, dan yang lainnya. Inti pemikiran mazhab ini berkembang di Amerika, yang menyatakan: “Hukum yang baik adalah hukum yang sesuai dengan hukum yang hidup di dalam masyarakat”. Pengertian “sesuai” dalam hal ini berarti bahwa hukum itu mencerminkan nilai – nilai yang hidup di dalam masyarakat. Keberlakuan hukum sangat erat kaitannya dengan kesadaran hukum masyarakat untuk mentaatinya atau mematuhinya.

Mazhab “sociological jurisprudence” adalah  berbeda dengan  dengan pengertian  “sosiologi hukum”. Sosiologi hukum merupakan cabang sosiologi yang mempelajari hukum sebagai gejala sosial (social phenomenon). Sosiologi hukum tumbuh dan berkembang di Eropa Kontinental. Sebagaimana dijelaskan oleh Roscoe Pound dalam kata pengantar pada buku  karangan Gurvitch yang berjudul “Sosiologi Hukum”, perbedaan diantara keduanya ialah bahwa kalau “sociological jurisprudence” itu merupakan suatu mazhab dalam filsafat hukum yang mempelajari pengaruh timbal balik antara hukum dan masyarakat, dan sebaliknya “sosiologi hukum” adalah cabang sosiologi yang mempelajari pengaruh masyarakat kepada hukum dan sejauh mana gejala – gejala yang ada dalam masyarakat itu dapat mempengaruhi hukum tersebut disamping juga diselidiki sebaliknya pengaruh hukum terhadap masyarakat. Yang terpenting adalah bahwa kalau “sociological jurisprudence” cara pendekatannya bermula dari hukum ke masyarakat, sedang “sosiologi hukum” sebaliknya dari masyarakat ke hukum.

Aliran atau mazhab “sociological jurisprudence” mengemukakan pentingnya “living law” (hukum yang hidup dalam masyarakat), yaitu aturan – aturan sebagai patokan berperilaku dalam interaksi hubungan kemasyarakatan.  Mazhab “sociological jurisprudence” menurut beberapa anggapan pada dasarnya merupakan suatu sinthese dari thesenya, yaitu Positivisme Hukum dan antithesenya Mazhab Sejarah. Dengan demikian “sociological jurisprudence” berpegang kepada pendapat pentingnya, baik akal maupun pengalaman. Pandangan ini berasal dari Roscoe Pound yang intisarinya antara lain: Kedua konsepsi masing – masing aliran (maksudnya positivisme  dan mazhab sejarah) ada kebenarannya. Hanya hukum yang sanggup menghadapi ujian akal dapat hidup terus. Yang menjadi unsur – unsur kekal dalam hukum itu hanyalah pernyataan – pernyataan akal yang berdiri di atas pengalaman dan diuji oleh pengalaman. Pengalaman dikembangkan oleh akal dan akal diuji oleh pengalaman. Tidak ada sesuatu yang dapat bertahan sendiri di dalam sistem hukum. Hukum adalah pengalaman yang diatur dan dikembangkan oleh akal, yang diumumkan dengan wibawa oleh badan – badan yang membuat undang – undang atau mengesahkan undang – undang dalam masyarakat yang berorganisasi politik dan dibantu oleh kekuasaan masyarakat itu.

Writer and Copy Right:
Dr. (Cand.) Appe Hamonangan Hutauruk, SH., MH.
Lecturer, Advocate and Legal Consultant
Handphone: 0818964919, 085959597919, 081213502002

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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