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NORMA DAN NORMA DASAR

NORMA DAN NORMA DASAR 

 

 

Norma adalah peraturan yang ditetapkan untuk mengatur bagaimana seseorang berperilaku dan oleh karenanya hukum positif adalah tata tertib normatif yang mengatur tindakan manusia dalam cara tertentu. Sebuah norma adalah sebuah proposisi “harus”: norma tidak mengekspresikan apa yang, atau apa yang harus, namun apa yang harus akan terjadi, dalam keadaan-keadaan tertentu; keberadaannya hanya dapat diartikan dari keberlakuannya, dan hal ini mengacu pada hubungannya dengan sistem dari norma-norma yang menjadi bagian-bagiannya. Norma tidak dapat dibuktikan keberadaannya secara faktual, namun norma semata-mata diturunkan dari norma lainnya, dan oleh sebab itu, menjadi absah.

Namun jika sebuah norma hanya dapat diturunkan dari norma lain, apakah ini berarti bahwa seseorang dapat meneruskan penurunan ini ad infinitum? Secara teoritis, ya, namun, dalam praktiknya, sebab norma berkaitan erat dengan tindakan manusia, maka haruslah ada sebuah norma mutlak yang didalilkan sebagai dasar pijakan bagi norma-norma lainnya. Inilah yang menjadi norma dasar. Sejauh yang dianut oleh sistem hukum norma dasar ini mesti bersifat sebagai hukum agung, sebab ex hypothesi norma dasar ini tidak diturunkan dari norma hukum yang lain. Namun Kelsen tidak semudah itu menuding bahwa pilihan norma dasar ini bukanlah sesuatu yang arbitrer. Justru sebaliknya, norma dasar ini harus dipilih oleh para ilmuwan hukum berdasar prinsip keampuhan, yaitu bahwa aturan hukum secara keseluruhan mesti berpijak pada asumsi bahwa pada kebanyakan kekuatan keampuhannya, orang-orang akan bertindak sesuai dengan norma tersebut. Norma dasar bersifat non-positif dan oleh karenanya bukanlah urusan ilmu hukum, namun norma dasar memang sesungguhnyalah ada untuk memberi kesatuan terhadap sistem hukum dan dalam menarik garis batas untuk norma-norma yang menjadi subjek ilmu hukum. Pilihan akan norma dasar juga memiliki implikasi penting dalam menentukan relasi hukum nasional Negara hingga hukum internasional. Jika norma dasar sesuai dengan undang-undang setiap Negara, maka tidak akan ada tumpukan pluralistik dalam sistem hukum mandiri. Sementara jika norma tersebut dipilih sebagai dasar hukum internasional, maka akan tercipta sebuah tata dunia monistik, yang akan menjadi dasar pijakan hukum nasional setiap Negara. Kelsen, meski demikian, tidak menjabarkan secara jelas mengenai sejauh apa pilihan norma tersebut ditentukan terlebih dahulu oleh prinsip kefektifan, meskipun fakta bahwa setiap Negara tunduk untuk menganggap diri mereka sendiri terikat oleh hukum internasional (tunduk terhadap konstruksi mereka sendiri mengenai apa yang seharusnya menjadi aturan), mungkin saja terdengar seperti mendengungkan sistem monistik, tanpa diragukan lagi sangat didukung oleh Kelsen sendiri, dalam prinsip-prinsip ini.

Kelsen, sebagai positivis filsosofis sejati, menolak segala entitas metafisik, seperti Negara atau hak atau kewajiban. Oleh sebab itu, imputasi sebuah tindakan terhadap Negara adalah sesuatu yang figuratif, yang, dalam konteks hukumnya semata-mata mengacu pada norma-norma tata hukum. Namun istilah “tatanan hukum” bermakna lebih luas daripada Negara, sebab Negara hanyalah sebuah tata tertib yang dipusatkan dan diberi nama Negara, dan situasi ini menafikan, misalnya, masyarakat primitif dan tata hukum internasional yang berlaku. Sekali lagi hak dan kewajiban bukanlah sebuah entitas yang berdiri sendiri, namun semata-mata ekspresi norma-norma hukum yang terkait dengan tindakan konkrit seorang individu.

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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