As a party which connects directly with society, police face the ‘gap’ fact between das sollen and das sein in their day to day duty. That being said, police are often positioned in a dilemmatic situation, on one side, police shall take actions according to the applicable positive law, however, on the other side, police are also expected by the society to not focus on the positive law only, but to also accommodate the legal needs which exists within the society (to take discretion). Surely this matter is a challenge for the police force to show their humane side but also firm side at the same time. This matter becomes more complex, if we see the fact that on one side, the society demans justice, but on the other side, the society wants the police to not only focus on the prevailing laws. Such as a double-edged sword, on one side, when the law is upheld by looking up to the justice principle, there are many clear lines which are now blurry, due to the sense of justice itself. On the other side, law enforcement which is driven by the text context of the laws and regulations created as rigid law which also trims the sense of justice desired by the society. Therefore, the police force in this matter is as if asked to pierce one side, pierce the law itself which may be considered fair but the firm concept of the law itself faded, or pierce justice itself but the firm concept of law itself still remain. Surely in this matter, some people will argue that piercing the law is more important than justice. It is not wrong, but it shall be underlined whether by being just we can get rid of the fault element which occurred? Surely not, something wrong will still be something wrong until it has been corrected. Considering that, law enforcement itself shall be viewed as something, which, other than being a vessel of justice, also guaranteed legal certainty itself.
Different to other law enforcing officials, police and society have a closer relationship. Police conducts its duties and functions in the middle of the society, namely to maintain safety and order, enforce the law, as well as protect, serve, and guard the society. That being said, police hold a very important role, which is as the representation of positive law in the field (Agus Raharjo, 2006). Often times, someone’s fate in achieving justice lies in the hands of police as the front liner of law enforcement. If the police consider the report from the society is not worthy to be brought to the next law enforcement stage (court by judge), then the access towards justice will not be opened. However, on the other side, if the police force in this matter is focused on the fact that the report shall continue and be completed, and others without looking at the humane side and prioritizing restorative justice, in the end law will just be mere text. This matter can be seen from the high crime rate which still exists, prison over capacity, high social gap. Therefore, law in this matter clearly does not provide benefit nor justice. Thus, giving rise to the question why law exists, because in the end, those law is only mere text, only a written regulation with a rigid and non-dynamic implementation which gives rise to new issues. Considering such, these kinds of challenges which are faced by law enforcers especially police force is expected to help solve these challenges together with other legal subjects.
Our society still often equate police with law itself. Such view can be linked to the perception that police is the executor of law in action (Satjipto Rahardjo, 2022). Besides, if a person views law enforcement in a narrow sense, then law enforcement is the police. Considering such, the police action is often used as a benchmark to view the implementation of positive law within the society. Considering such, the professionalism and ability of police to conduct ‘transliteration’ of law within the society well is a very important aspect. On the contrary, police as the front liner within law enforcement shall also be able to adapt with the dynamic of values which exists within the society, in order to achieve law adjustment with values which originate from the society (bottom up).
Currently, adjustment of legal norms is still dominated by the changes of law (top down), where the society is asked to adjust the values which is brought within the legislation instrument. The problem of the top down law renewal structure is that, often rules within the laws and regulations are those hindering the development of positive law, since it cannot follow the development which exists in the society which tend to be dynamic. However, on the other side, the superiority of law formulation which is sourced from the society or court (bottom up) is felt to be able to solve social problems within the society (Jeffrey J. Rachlinski, 2006). The largest challenge of law enforcement is the fact that law is not in vacuum, but it exists within the society as an addressor (Satjipto Rahardjo, 1993). Law enforcement cannot be merely defined that society shall adjust with the law, but also how the law can adjust according to the values within the society (Soetandyo Wignjosoebroto, 2002).
Progressive law is included as an important factor in achieving a law which is in accordance with the values within the society. Even so, police force involvement is required in achieving such hopes. Police as a representation of law which exists in the society, is an entrance to the “progressivity” into positive law. Considering the society as the addressor of law itself which experiences deficiencies or limitation within positive law in achieving and guaranteeing justice in the field, it is almost certain that the police is the first actor to accept such complaint. That being said, police is a vital actor in achieving progressive law.
Progressive law in the police force becomes an important aspect to bridge and provide chances towards new values in the society to be considered as part of law through a series of law enforcement process, until it can be formulized into a law, for example in a court verdict, so that justice can still be upheld although the prevailing law within the positive law actually does not accommodate it yet. Therefore, it can be seen that it is important to make sure the police force understands and implements progressive law in conducting their task and function within the society.
- Closing
As mentioned within several abovementioned paragraphs, progressive law desires that law moves dynamically. Law shall always move, destruct, change, free stagnant laws. Law shall keep flowing, because human life itself is everchanging from time to time. Development of life and human civilization cannot be contained by or even cages firmly into a chart or scheme which is considered final and unchangeable. Such chart, namely the law itself, shall flow as well.
“Law is meant to be human”, as popularly stated by Alm. Prof. Dr. Satjipto Rahardjo means that law does not exist for itself (as lined within the tradition of analytical jurisprudence), but for something greater and more essential, namely justice and its benefit for human life. Every time a problem within law or with law exists, law shall be first evaluated and fixed and not human shall be forced as is to follow the law. Law is not something static, but shall be dynamic in nature.
Law essentially is a contextual matter and does not only deal with a textual world. That being said, we will never receive a finished and complete understanding towards the law, if we cannot understand the society in which such law applies. It means that the law shall also be contextualized, or adjusted with human as its context. Further, by understanding human as a context of law, we will receive a comprehensive understanding regarding law.
Considering the notion mentioned above, it is not exaggerating to say that the law enforcement pattern in Indonesia requires reconstruction. Society shall be its main purpose, while law shall be viewed as a tool to achieve welfare and peace in the society. Law enforcers can no longer merely think from a formal-logical perspective only, but shall also involve sense and intention.
- References
Kansil, Cst. 2009. Kamus Istilah Hukum, Jakarta: Gramedia Pustaka Utama.
LaFave, Wayne R. 2012. Search and Seizure: A treatise on the Fourth Amandment (5th ed), St. Paul.
Latukau , Fikry. 2019. Kajian Progres Peranan Kepolisian Dalam Sistem Peradilan Pidana, Cahkim, Vol. XV, No. 1 Juni.
Khudzaifah, Dimyati. 2004. Kata Pengantar Satjipto Raharjo. Teoritis Hukum. Surakarta: Muhammadiyah University Press.
Nonet, Philippe & Philip Selznick. 1978. Law and Society in Transition: Toward Tanggapanive Law. London: Harper and Row Publisher.
Rahardjo, Satjipto. 1993. “Penyelenggaraan Keadilan dalam Masyarakat yang Sedang Berubah”, Jurnal Masalah Hukum, Vol. 2, No. 3.
Rahardjo, Satjipto 2002. Polisi Sipil dalam Perubahan Sosial di Indonesia. Jakarta: Penerbit Buku Kompas.
Rahardjo, Satjipto. 2004. Hukum Progresif (Penjelajahan Suatu Gagasan). Makalah: Alumni Program Doktor Ilmu Hukum Undip Semarang.
Rahardjo, Satjipto. 2008. Membedah Hukum Progresif. Jakarta: Penerbit Kompas.
Raharjo, Agus. 2006. “Hukum dan Dilema Pencitraannya: Transisi Paradigmatis Ilmu Hukum dalam Teori dan Praktik”, Jurnal Hukum Pro Justitia, Vol. 24, No. 1.
Rachlinski, Jeffrey J.. 2006.“Bottom-Up versus Top-Down Lawmaking”, The University of Chicago Law Review, Vol. 73.
Soekanto, Soerjono. 1983. Faktor-Faktor Yang Mempengaruhi Penegakan Hukum. Jakarta: Rajawali.
Soekanto, Soerjono. 2004. Sanksi dan Efektivitas Sanksi, Cetakan Kelima. Jakarta: Raja Grafindo Persada.
Suvahyo, Nurhadi. 2019. Misteri Pembunuhan Jurnalis Udin Genap 22 Tahun, https://www.voaindonesia.com/a/misteri-pembunuhan-jurnalis-udin-genap-22-tahun/4531062.html.
Soetandyo, Wignjosoebroto. 2002. “Hukum, Paradigma, Metode, dan Dinamika Masalahnya”. Jakarta: Elsam
Van Dunne. 1987. Diktat Kursus Hukum Perikatan III, Terjemahan Sudikno Mertokusumo.
WJS, Poerwadarminta. 1952. Kamus Umum Bahasa Indonesia. Jakarta: Bali Pustaka.
