Hukum dalam Masyarakat Tradisional dan Masyarakat Modern

Hukum dalam Masyarakat Tradisional dan Masyarakat Modern. eibisi.com – Berbicara tentang hukum tentu tak ada habisnya. Hal ini karena hukum sifatnya luas, dan berkembang sesuai tuntutan zaman. Kita sebagai manusia tak bisa lepas dari hukum. Karena dimana ada sekumpulan manusia, jelas hukum ada untuk melindungi kepentingan manusia itu sendiri, mengatur cara berperilaku agar tercipta ketertiban dalam masyarakat. Terlepas dari manusia yang hidup sendiri misalnya, terdampar disebuah pulau atau hidup di dalam hutan dimana dia bebas berbuat apa saja dengan kesendiriannya. Apakah tidak ada hukum dalam hal ini ? jawabannya tidak, masih ada hukum dalam hal ini, yaitu hukum alam, hukum yang tak mengenal ruang dan waktu. Maka tak heran dengan pepatah yang menyatakan, bahwa “Lahir dijemput oleh hukum, hidup diatur oleh hukum, matipun diantar oleh hukum”.

Menurut Aristoteles manusia adalah hewan politik, dimana dalam menjalani aktivitasnya ada tujuan yang hendak dicapai. Olehnya itu, hukum lahir untuk mencegah kesewenang-wenangan berhubung dengan hasrat berlebih manusia untuk mencapai tujuan tersebut. Hukum dipandang berbeda sesuai dengan sudut pandang orang yang melihatnya, makanya sampai saat ini kita sulit memahami hukum secara lebih konkret, sederhana, lugas, dan mudah dimengerti. Hal itu wajar karena hukum acapkali digambarkan sebagai sesuatu yang abstrak dan ideal.

Lalu bagaimana hukum dalam masyarakat tradisional dan masyarakat modern ? Hal ini berkaitan dengan sosiologi hukum dan antropologi hukum dimana ditinjau dari pola-pola sengketa penyelesain dalam masyarakat serta hubungan timbal balik antara hukum dan gejala sosial yang ada.

Dalam masyarakat tradisional, mereka memenuhi kebutuhan mereka sendiri dan dipersatukan oleh suatu warisan bersama dan pekerjaan umum, seperti petani misalnya. Masyarakat tradisional memiliki solidaritas yang disebut solidaritas mekanis (mechanic solidarity), yaitu solidaritas yang didasarkan pada kesadaran kolektif, kebersamaan, dan hukum yang berlaku bersifat menekan. Dalam solidaritas mekanis ada totalitas kepercayaan dan sentimen-sentimen bersama yang ada pada masyarakat yang sama. Indivudualitas tidak berkembang karena kehidupan masyarakat didasarkan pada kepentingan bersama. Ciri khas dari solidaritas mekanis adalah solidaritas didasarkan pada tingkat homogenitas yang tinggi dalam kepercayaan, sentiment, dan kebersamaan mencapai kepentingan bersama.

Dalam masyarakat modern, pembagian pekerjaan telah amat terspesialisasi. Para pekerja mendapat bayaran uang. Orang-orang saling terikat karena mereka tidak dapat memenuhi kebutuhan mereka sendiri. Masyarakat modern, memiliki solidaritas yang disebut solidaritas organic (organic solidarity), yaitu solidaritas yang didasarkan pada saling ketergantunga antara anggota dan spesialisasi pembagian kerja dengan hukum yang berlaku bersifat restitutive/memulihkan. Dalam solidaritas organik, motivasi anggotanya sebagian besar karena ingin mendapatkan upah/gaji yang diterima sebagai imbalan atas peran sertanya dalam kelompok. Solidaritas organik muncul karena adanya pembagian kerja/spesialisasi sehingga saling ketergantungan antara anggota sangat tinggi.

Durkheim juga melihat adanya keterkaitan antara dua jenis solidaritas tersebut dengan sistem hukum. Dalam masyarakat dengan solidaritas mekanis, hukum pada umumnya represif. Pelaku kejahatan akan dihukum merupakan kompensasi terhadap perasaan kolektif masyarakat yang dilukai. Dalam masyarakat dengan solidaritas organik , hukum umumnya bersifat restitutif, tujuannya bukan untuk pidana tetapi untuk memulihkan aktivitas normal suatu masyarakat yang kompleks.
Olehnya itu, hukum dalam penerapannya terkait tujuan hukum itu diadakan pada umumnya berbeda berdasarkan masyarakat itu sendiri, baik masyarakat sederhana (masyarakat tradisional) yang sedang berkembang maupun masyarakat yang sedang mengalami proses modernisasi.

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