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TEORI NORMA HUKUM

TEORI  NORMA HUKUM

 

 

ADOLF  MERKL à Norma Hukum pada hakekatnya mempunyai 2 (dua) sisi, yaitu sisi ke atas dan sisi ke bawah. Sisi ke atas yaitu terhadap norma yang lebih tinggi, menunjukkan berlakunya suatu norma hukum berdasarkan norma hukum yang lebih tinggi. Sedangkan sisi ke  bawah yaitu terhadap norma hukum yang lebih rendah, menunjukkan bahwa norma hukum yang lebih  tinggi dapat membentuk norma hukum yang lebih rendah.

HANS KELSEN à Membenarkan teori Adolf Merkl dan kemudian mengembangkannya lebih lanjut. Kelsen menyatakan bahwa Norma Hukum itu bertingkat – tingkat atau berlapis – lapis, mulai dari tingkat yang lebih rendah sampai dengan tingkat yang paling tinggi yang disebut dengan STUFENBAU  DES RECHT THEORIE, yaitu Norma Hukum yang lebih rendah, terbentuk dan berlakunya berdasarkan Norma Hukum yang lebih tinggi, dan norma hukum yang lebih tinggi terbentuk dan berlaku berdasarkan Norma Hukum yang lebih tinggi lagi. Demikian seterusnya sampai sampai pada Norma Hukum yang tertinggi yang disebut dengan “GRUNDNORM”, yang tidak dapat lagi dicarikan dasar terbentuk dan berlakunya. Norma Hukum tertinggi ini terbentuk dan berlaku berdasarkan Pre Supposed (kesepakatan seluruh rakyat).

Sistem Norma Hukum menurut Hans Kelsen ada 2 (dua) macam, yaitu:

1. NOMOSTATIC (Sistem Norma Statik) yaitu sistem norma yang melihat pada isi norma, dimana suatu norma umum dapat ditarik ke dalam beberapa norma khusus;

2. NOMODYNAMICS (Sistem Norma Dinamik) yaitu sistem norma yang melihat pada berlaku dan terbentuknya suatu norma, sehingga norma tersebut berjenjang – jenjang dan berlapis – lapis, dimana norma yang lebih rendah berlaku dan terbentuk berdasarkan norma yang lebih tinggi. Norma yang lebih tinggi berlaku dan terbentuk berdasarkan norma yang lebih tinggi lagi, begitu seterusnya sampai pada norma tertinggi GRUNDNORM.

 HANS NAWIASKY mengakui teori Hans Kelsen yang menyatakan bahwa Norma Hukum yang lebih rendah terbentuk dan berlaku berdasarkan Norma Hukum yang lebih tinggi dan bahwa Norma Hukum itu bertingkat – tingkat. Hans Nawiasky mengklasifikasikan Norma Hukum menjadi 4 (empat) kelompok, yaitu:

  1. STAATSFUNDAMENTAL NORM (Norma Fundamental Negara) yaitu memberi pengarahan pada norma dibawahnya, baru berisi Norma Hukum Primer saja;
  2. STAATSGRUNDGESETZE (Aturan Dasar Negara) yaitu norma yang mengatur kehidupan kenegaraan yang berisi pokok – pokoknya saja, yang jadi pedoman bagi terbentuknya undang – undang formal. Pada norma ini juga belum ada atau belum timbul sanksi;
  3. FORMELLE GESETZE (Undang – Undang Formal) yaitu norma yang merupakan pelaksanaan dari Staatsgrundgesetze, dan dalam norma ini telah ada atau telah timbul sanksi;
  4. VERORDNUNGEN (Peraturan Pelaksanaan) yaitu norma yang merupakan pelaksanaan dari Formelle Gesetze berdasarkan pendelegasian dari undang – undang, dan AUTONOME SATSZUNGEN (Peraturan Badan – Badan Otonom) yaitu peraturan yang dibentuk oleh Badan – Badan Negara yang otonom berdasarkan atribusian.

Istilah “GRUNDNORM” sebagaimana diintrodusir oleh Hans Kelsen, kurang disepakati oleh Hans Nawiasky dan menurutnya lebih tepat digunakan istilah “STAATSFUNDAMENTALNORM” dengan alasan “Pengertian Grundnorm pada dasarnya mempunyai kecenderungan tidak dapat berubah, padahal dalam suatu negara maka Norma Dasar mungkin saja dapat berubah sesuai kondisi dan perkembangannya atau karena adanya perubahan falsafah negaranya”.

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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