Jurisprudence Note

BALLB/LLB/LLM

Advocate S.K. Gupta

Ø Meaning of Jurisprudence

Jurisprudence is the science, study, and theory of law. It includes principles behind law that make the law. The word jurisprudence has derived from the Latin word jurisprudentia whereas juris means law and prudential means knowledge. Therefore, jurisprudence means knowledge of law. Jurisprudence commonly refers to the philosophy of law. It is the study of principles and theories on which a legal system is founded. Legal philosophy has many aspects, but four of them are most common. The first and the widespread form of jurisprudence seek to analyze, explain, classify, and criticize the entire bodies of law. The second type of jurisprudence compares and contrast law with other fields of knowledge such as literature, economics, sociology, religion and the social science. Third type of jurisprudence reveals the historical, moral and cultural basis of a particular legal concept. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as: what is law? How do judges decide cases? etc.

Jurisprudence is the study of fundamental legal principles including their philosophical, sociological and historical bases, and an analysis of legal concepts. It is concerned not only with the normative but also positive; it relates not merely to actual but also the ideal position of legal philosophy.

Cicero: - Jurisprudence is the philosophical aspect of the knowledge of law.

Austin: -- Jurisprudence is the philosophy of positive law.

Salmond: - - Jurisprudence is a science of first principle of civil law.

Holland: - - Jurisprudence is the formal science of positive law.

Allen: - - Jurisprudence is the scientific synthesis of all the essential principles of law.

Paton: - - Jurisprudence is a particular method of study, not of the law of one country, but of the general notion of law itself, it is a study relating to law.

Clark: - - Jurisprudence is the science of law in general. It does not confine itself to any particular system of law, but applies to all the system of law or to most of them. It gives the general ideas, conception and fundamental principles on which all or most of the systems of laws of the world are based.

Ø Scope and nature of Jurisprudence

There is no unanimity of opinion regarding the scope of jurisprudence. Different authorities attribute different meanings and varying premises to law and that causes difference opinions with regard to the exact limit of the field covered by jurisprudence. Jurisprudence has been so defined as to cover moral and religious precepts also and that has created confusion. It goes to the credit to Austin that he distinguished law from morality and theology and restricted the term to the body of the rules set and enforced by the sovereign or supreme law making authority within the realm. Thus the scope of jurisprudence was limited to the study of the concepts of positive law and ethics and theology fall outside the province of jurisprudence. There is tendency to widen the scope of jurisprudence and at the present we include what was previously considered to be beyond the provinces of jurisprudence. The present view is that scope of jurisprudence cannot be circumcised or regimented. It includes all concepts of human order and human conduct in state and society. Anything that concerns order in the state and society falls under the domain jurisprudence.

The jurisprudence includes each and every area of society. It is basically focused on whether the law and morality are inter-changeably used or not. Either the jurisprudence is only philosophy or science that is also issued of jurisprudence. In the particular jurisprudence, it is linked to the each and every legislation. In fact, the French meaning of jurisprudence refers to case law. Ever the case law is the scope of jurisprudence. Jurisprudence mainly focused on law making interpreting and enforcement process. That is also the scope of jurisprudence. Jurisprudence has inter-relationship with other social discipline like sociology, anthropology, psychology, politics, economic and many more. Jurisprudence also tried to regulate those discipline to make orderly society. The scope of jurisprudence is also more philosophical. In the understanding of salmond, it is universal and in the understanding of Astin, it is particular in the scope.

Ø Significance and Utility of the Study of Jurisprudence

This subject has its own intrinsic interest and value because this is a subject of serious scholarship and research; researchers in Jurisprudence contribute to the development of society by having repercussions in the whole legal, political and social school of thoughts. One of the tasks of this subject is to construct and elucidate concepts serving to render the complexities of law more manageable and more rational. It is the belief of this subject that the theory can help to improve practice.

2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts and it sharpens the logical techniques of the lawyer. The study of jurisprudence helps to combat the lawyer’s occupational view of formalism which leads to excessive concentration on legal rules for their own sake and disregard of the social function of the law.

3. The study of jurisprudence helps to put law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines.

4. Jurisprudence can teach the people to look if not forward, at least sideways and around them and realize that answers to a new legal problem must be found by a consideration of present social needs and not in the wisdom of the past.

5. Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas and fundamental principles of law. Therefore, by understanding the nature of law, its concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in knowing the language, grammar, the basis of treatment and assumptions upon which the subject rests. Therefore, some logical training is necessary for a lawyer which he can find from the study of Jurisprudence.

6. It trains the critical faculties of the mind of the students so that they can dictate fallacies and use accurate legal terminology and expression.

7. It helps a lawyer in his practical work. A lawyer always has to tackle new problems every day. This he can handle through his knowledge of Jurisprudence which trains his mind to find alternative legal channels of thought.

8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence should not be confined to the study of positive laws but also must include normative study i.e. that study should deal with the improvement of law in the context of prevailing socio-economic and political philosophies of time, place and circumstances.

9. Professor Dias said that ‘the study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence’.

Ø Meaning of Comparative Jurisprudence

Comparative jurisprudence is the scholarly study of the resemblances and differences between the different legal systems. For example, study of similarities and differences between civil law and common law countries. It is not a separate branch of jurisprudence. Comparative jurisprudence is also termed as comparative law. Comparative law is the comparison of legal systems. Major issues in comparative law include intellectual property protection, human rights, the environment, criminal law and procedure, tax policies, and labor relations. The study of other legal systems has gained in relevance because it helps us to understand our own law and to provide solutions for legal issues which have become more and more global. Comparative law is by definition the study of foreign law. It is comparison of law, not really a field of substantive law. Comparative law is not a body of rules and principles. Primarily, it is a method, a way of looking at legal problems, legal institutions, and entire legal systems. By the use of that method it becomes possible to make observations, and to gain insights, which would be denied to one who limits his study to the law of a single country.

In general, comparative legal studies can be divided into two main groups: macro-level comparison and micro-level comparison. While the former represents the comparison of two or more legal systems as a whole, the latter describes the analysis of a specific legal issue and how it is treated in two or more legal systems. Thus, if you compare the entire German and the US legal system, you do a macro-level comparison. If, on the other hand, you are interested in a juxtaposition of the ways contracts are made in the United States and Germany respectively, you would compare the two laws on a micro-level.

The macro-micro-level distinction, however, is only a cursory one. On the substantive side, the following five main groups of comparative legal studies have been distinguished:

1. comparing one or more foreign legal system(s) with the domestic system;

2. analyzing the solutions different legal systems offer for a legal problem;

3. investigating the causal relationship between legal systems;

4. contrasting the different stages of various legal systems; and

5. Examining the general legal evolution.

Overall, a comparative legal study requires a balanced and thorough analysis of two or more legal systems or some aspects thereof (as opposed to just mentioning the legal situation in a foreign country).

Ø Jurisprudence in Nepalese context

In the context of Nepal, the jurisprudential formally being with the establishment Law College and university along with the establishment various court system. Even in the traditional society, there was the jurisprudence thought in unwritten law which had ultimate purpose to provide justice. There is government, importance given in this jurisprudential concept. In this jurisprudential concept after 2046 to comes as a institutionally. Even in the partition case of Meera Dhungana, privacy case of Sapana Malla, social discrimination case of Man Bahadur Bishowkarma, hunger justice case of Madhav Kumar Basnet are some examples.

All these case laws have supported jurisprudential thought. Issuance of country code 1910 and supremacy of existing constitution and relevant laws refers to support of analytical thought. Inclusion of fundamental rights concept in constitution and human rights laws refers to the natural laws school. Acceptance of custom and tradition if there is no statutory law refers to historical school thought. Primary education in local language right to religion, codification of existing custom and in country code and other laws refers to acceptance of historical law school. In Tara Devi Paudel case (dever bhauju bich bibaha huna sakdaina), there is historical jurisprudence thought applied. In the context of sociological school, chhaupadi case of Dil Bahadur B. right to information case of Gopal Siwakoti have accepted sociological jurisprudence thought. Abolition of feudal land system, acceptance of land Act, land acquisition act, has accepted socialist thought. Progressive taxation system and case laws are also associated with same thought.

In the Sunil Babu Panta’s third gender case and other case of PIL with directive principles are also associated with realism school. In the Ravi Raj Bhandari vs. HMG, Bal Krishna Neupane vs. HMG are also associated with CLS thought because according to CLS, law is politics. In the marital rape case of Meera Dhungana and Jitkumar pagyani case, Reena Bagracharya RNAC case, gender equality Act, 2063, 11^th amendment of country code, fundamental rights like right to equality, right to women are the major case laws, laws and constitutional provision supporting for feminism jurisprudence.

Likewise, Rajendra Dhakal vs. HMG of compensation case and existing right movement of various race and ethnicity, issue of right to self determination are also associated with post modernism thoughts.

Ø Natural Law School of jurisprudence

Natural law is a philosophy of law that focuses on the laws of nature. This school believes that there are inherent laws that are common to all societies whether or not they are written down or officially enacted. Law is rational and reasonable. Laws are a logical progression from the morals. Hence, actions that are considered to be morally wrong will be against the law. Likewise, actions that are considered to be morally right cannot be truly and justly against the law. Natural law exists regardless of what laws are enacted.

Natural law is thus a moral theory of jurisprudence. It maintains that law should be based on morality and ethics. It holds that the law is based on what is correct. Natural law is discovered by humans through the use of reason and choosing between good and evil. So, this school finds it power in discovering certain universal standards in morality and ethics. The theory asserts that certain moral laws transcend time, cultures and governments. There are universal standards that apply to all mankind throughout all time. These moral standards are inherent in and discoverable by all of us, and from the basis of a just society.

The American Declaration of Independence (1776) and the Bill of Rights (1689) are both heavily based on the tenets of natural law. Thomas Jefferson also cited natural law in the Declaration of Independence; calling is the law of nature and of nature’s God. The natural law theory is the oldest school of jurisprudence and its influence is pervasive in most of the legal acts and decisions even now.

Basic tenets of this school

1. Law is related to justice, reason, human nature and ethics.

2. Rules of human conduct emanate from a supreme authority and are binding on all men everywhere.

3. Natural law is opposed to written law, the former is wise, and the latter is arbitrary.

4. Nature is an order of things. It demands equality for all men.

5. Rules of law can be studied on the basis of a priori method, i.e., to accept a thing without an enquiry or observation.

Criticism

1. David Hume abhors the ideal content of natural law. He attacks the absolute principles of natural law by extrapolating that there is no connection between the facts and ideas. Nobody can derive an ought from an is. Cause and effect relationship is impossible to be found in justice.

2. Notions such as good and evil are mere subjective reactions. Values are not inherent in nature. Reason cannot evaluate values. The concept of a perfect, complete and discoverable legal system is utopian.

3. Discretion granted by natural law would be adept for misuse; and only the firm and fixed rules of law will serve common justice.

4. The a-priori methods of natural law theorists are unacceptable in a pragmatic spirit of science. Some natural law propositions when subjected to critical examination, failed miserably.

5. It is simply a wild inference to suppose that just because certain institution and laws in different countries are similar, they are reflecting some universal law.

6. People may have to observe even an unjust law if it is validly made.

7. Moral principles vary a great deal from place to place, person to person and time to time. Hence, morals do not enjoy uniformity or universal acceptance.

Historical Development of Natural Law school/principle

1. Greek Period

Heraclites (930-470 B.C.)

· He was the first Greek philosopher.

· He pointed at three main characteristics features of law of nature, namely; Destiny, Order and Reason. Destiny is related to luck and fate, order is related to natural order and reason is related to the knowledge derived from the God mind based upon the philosophy of Heraclites.

· He stated that nature is not a scattered heap of things but there is a definite relation between the things and a definite order and rhythm of events.

· He said, reason is one of the essential elements of natural law.

· Unstable political conditions gave birth to the idea of natural law which aimed at morality and righteous conduct.

Socrates (470-39 B.C.)

· He defined virtue the fundamental ethical conception, as insight, in turn, as knowledge of the good, the concept of good with no universal content,

· According to him, like natural physical law, there is a natural moral law, it is because of the ‘human insight’ that a man has the capacity to distinguish between good and bad and he is able to appreciate the moral values,

· He argued that there were principles of morality which it was possible to discover through the processes of reasoning and insight,

· Natural law should be subjected to the critical evaluation is the light of man’s insight,

· Law based on these principles would thus be the product of correct reasoning.

Plato (426-347 B.C.)

· He placed the foundation for much of subsequent speculation of natural law themes.

· He stated that gods gave to all men in equal measure a sense of justice and of ethical reverence so that in the struggle of life they may be able to form permanent unions for mutual preservation.

· He found that nature of practical life in primary ethical feelings which impel men to union in society and in the state.

· His ideal of state refers to each individual is given that role for which he is best fitted by reason of his capacities.

· His Republic is a constructive attempt to discover the basis of justice and emphasized to provide proper division of labour.

· The administration of justice is given to the philosopher kings whose education and wisdom is such that there is no necessary to link then up with a higher law.

· Plato further said that aristocratic ruling system is acceptable. He has conceptualized various kind of state system which as follows

i. Aristocracy: - Control by philosopher rulers, highest social class.

ii. Timocracy: - Irrational ambition.

iii. Plutocracy: - Government by rich and powerful class.

iv. Democracy: - Government of the people, for the people, by the people.

v. Despotism:- No rule regulation, failed state

Aristotle (384-322 B.C.)

· He defined natural law as ‘reason unaffected’ by desire; it embodies the basic principle of justice and morality which have universal validity independent of time and place,

· He said that main is a part of nature in two ways , firstly , he is creation of good and secondly; he possesses insight and reason which enable him to articulate his action,

· He is capable of forming his will in accordance with the insight of his reason,

· Man as a part of universal nature is governed by reason,

· Reason orders his faculties in such a way that he can fulfill his true nature,

· He has distinguished two types of justice: Distributive Justice and Corrective Justice,

· When man lives according to reason he lives naturally thus the law of nature becomes identified with a moral duty.

· He has classified various level of system of state where he preferred aristocratic system as most because it is run by wise people. He classified state system as Monarchy, Aristocracy, and Polity. If these state system degenerates then Tyranny. Oligarchy and Democracy will be established. Tyranny is degenerate form of Monarchy, Oligarchy degenerate form of aristocracy and Democracy is degenerate form of Polity.

2. Roman Period

Roman classical writer accepted the Greek conception of natural law. They classified law of Rome into three broad categories.

a) Jus Civile (Nagarik kanon): - ‘Jus Civile’ was the civil or the positive law enforceable by the court to regulate the relationship between the Roman citizens themselves.

b) Jus Genitum (Bdaysi kanon):- ‘Jus Genitum’ was a part of the positive law of Rome, though much wider in scope than the ‘Jus Civile’.

c) Jus Naturale: - ‘Jus Naturale’ was the law of nature. It had no legal validity in the court, yet it formed the foundation on which the other two laws were based. The ‘Jus Genitum’ was identified with ‘Jus Naturale’. Both were based on human nature, reason and morality, both had wider application, being applied to all mankind. The only difference between ‘Jus Genitum’ and ‘Jus Naturale’ is that the former had legal validity in the courts whereas the latter was not enforceable.

Marlus Tullius Cicero

· He argued that nature provided rules by which humanity ought to live; these rules, which could be discovered through reason, should form the basis of all law,

· True law is right reason is agreement with nature, it is of universal application, unchanging and everlasting,

· He wrote that law is the highest reason implanted in nature which commands what ought to be done and forbids of opposite,

· According to him, man stands highest in creation by virtue of his faculty of reasoning and his welfare is the supreme purpose of creation,

· Natural law the universally valid law which is above all human caprice and change of historical life develop both the commands of morality in general and of human society.

3. Medieval Period

St. Augustine (354-430)

· According to him, In the Christian cosmology there is no law above God,

· God is the creator of the universe and all its laws. God is not like a computer programmer who writes the laws of a universal program and allows it to run its course,

· Augustine supplanted the impersonal cosmic reason with the reason of the purposeful personal God,

· The eternal cosmic law (lex aeternal) is God’s law,

· He wrote ‘eternal law’ is the divine reason and the will of God which commands the maintenance of the natural order of things and which forbids the disturbance of it,

· Augustine thought that at the beginning there was no human law, as the natural law was sufficiently recognized and observed by people,

· Human law became necessary to restore the natural law with the force of political authority,

· Human law’s role is to serve the natural law and through natural law, to serve the eternal law,

· A law is unjust when it is at odds with the natural law, and such laws should be ignored by everyone.

St. Thomas Aquinas (1225-1274)

St. Thomas Aquinas is in many senses the paradigm of natural law theorist who dominates the period from the church father to Immanual Kant (1724-1804). He divides law into four categories, they are:

i. The Lex acterna (Esoriya kanon): Lex acterna is divine reason which is known only to God and the blessed could see God in his essence. It is God’s plan for the universe, a deliberate act of God and everything is subject to it.

ii. The Lex divina (Daibiya kanon): Lex divina is the law of God revealed in the scriptures.

iii. The Lex naturalis (Prakirtik kanon): It consists of participation of the eternal law in rational creatures. It is proper for man to be inclined to act according to reason.

iv. The Lex humana (Manab nirmit kanon): The lex humana or positive law derives its validity from secondary natural law. To be just a positive law must be virtuous, necessarily useful, clear and for the common good.

God is the highest good and from him all things emerge. Law is in its manifestation flows ultimately from divine reason.

4. Renaissance Period

Hugo Grotius (1583-1645)

· He gave classical expression to the new foundation of natural law as well as the principles of the modern international law,

· He quoted that natural law is so immutable that it cannot be changed by God himself,

· On his principles of natural law, he built his system of international law,

· The most fundamental of his principles is Pacta Sunt Servanda, respect for promises given and treaties signed,

· Natural law is based on the nature of man and his inward need of living in society,

· He called human nature as the grandmother, natural law the parent and positive law the child.

Thomas Hobbes (1588-1679)

· Natural law was superior to positive law,

· He acknowledged objective rules of nature law of an immutable character but he divested them of any practical significance by depriving them of sanctions,

· Natural law not certain ethical principles but laws of human conduct based on observation and appreciation of human nature,

· All law is dependent upon sanction,

· He quote that governments without the sword are but words and of no strength to secure a man at all,

· All real law is civil law,

· It is commanded and enforced by the sovereign,

· There is no distinction between state and society,

· Natural law is little more than a fiction, ingeniously twisted to support a political dictatorship,

· He expressed the main percept of natural law in the form of man’s right to self-preservation.

John Locke (1632-1704)

· He gave his chief attention to the right of private property,

· State of nature, men had all the rights which nature could give them,

· The right of property existed prior to and independent of any social contract whose function was to preserve and protect not only the right to property but also other natural rights,

· The fundamental law of nature is the preservation of mankind and no human sanction can be good or valid against it,

· The legal theory of Locke gave theoretical form to the reaction against absolutism and to the preparation of parliamentary democracy,

· He emphasized upon the inalienable rights of the emancipated individual.

Jean Jacque Rousseau (1712-1778)

· Every individual had unlimited liberty,

· There was no private property, no competition and no jealousy,

· Every individual lived the free life of savage. Law is the expression of the general will,

· A law is resolution of the whole people for the whole people, touching a matter that concerns all. The law must relate to general interest,

· The general will is always the right will,

· Sovereignty is the source of all law,

· Nature gives each man an absolute power over all his parts, likewise the social contract gives an absolute power to the body politic over all its parts,

· Separation of powers is not the division of sovereignty but the exercise of it for the sake of convenience,

· The right of liberty, equality and property are rights of the citizen and not the natural and inherent rights of individual,

· Liberty is civil liberty and not natural liberty. A man is equal by law and not by nature.

Immanuel Kant (1724-1804)

· His doctrine is his proclamation of the autonomy of reason and will,

· Human reason is law creating and constitutes moral law. Freedom in law means freedom from arbitrary subjection to another,

· Law is the complex totality of conditions under which maximum freedom is possible for all,

· The fundamental idea of Kant’s philosophy is human autonomy,

· “Autonomy” literally means giving the law to oneself, and on Kant’s view our understanding provides laws that constitute the a priori framework of our experience,

· The function of the state was essentially that of protector and guardian of that law,

· His ideal of laws does not bear any relation to any actual system of law,

· It is purely an ideal to serve as a standard of comparison and not as a criterion of the validity of law.

5. Modern Period

Lon Luvois Fuller (1902-1978)

For Fuller connection between law and morality is necessary and which must not be separated. The law which is totally divorced from morality ceases to be law. In his “Morality of law (1969)” Fuller presents significance of morality and eight qualities in legal system. A legal system must be instrumental in the enterprise of subjecting human conduct to the governance of rules, such a system’s external morality is morality of “ aspirations and ideals” it is the “internal morality” a procedural version of natural law which is the greatest significance as a test of the lawlessness of law. Eight qualities of law according to Fuller must be present in a legal system in order to deserve to command allegiance from citizens. Eight qualities of laws presented by Fuller are enumerated hereunder:

· Generality: Laws must be in existence.

· Promulgation: Law must publicly promulgate, they must be made known to persons who will be bound by such laws.

· Prospective legal operation: Laws must not be retroactive. They must not affect adversely.

· Intelligibility and clarity: Laws must be intelligible and clear.

· Consistent: Laws must be internally consistent through time. They must not change so that citizens are unable to orient their actions by them.

· Avoidance of contradiction: Laws must be free from contradiction.

· Avoidance of impossible demands: Laws must not require the impossible demands.

· Congruence between official action and declared rules: Laws must be administered so that there is no failure of congruent between the rules as promulgated and their administration in practice.

Finnis (Born 1929)

British lawyer and philosopher. The most significant statement of natural law in recent times is undoubtedly Finnis’s “Natural Law and Natural Rights” (published in 1980). The philosophy of Finnis is also based upon natural law in positive law concept. He has conceptualized two kinds of goods; one is common goods and another is objective goods. Common goods are necessary or essential for each and everyone whereas objective goods are not necessary for all. He is a supporter of natural law and human right. All the concept of natural law and human right are based upon common goods concept. According to him, respect to all the common goods will instill justice. Otherwise, there will be no justice. Every member of society has equal right to fulfill common goods which is universal and inalienable. Morality and law are given a rational basis which rests on two principles such as (1) there are certain basic values of human existence (human goods) which are self evident and (2) practical reasonableness which required to achieve human goods. For him, natural law is the set of principles of practical reasonableness in ordering human life and human community. Drawing on Aristotle and Aquinas, he sets up the proposition that there are certain basic goods for human beings. These basic goods are objective values in the sense that every reasonable person must assent to their value as objects of human striving. Finnis lists seven, these are as follows

· Life: The first basic value corresponding to the drive for self preservation is the value of life. The term life signifies every aspect of validity which puts a human being in good shape for self-determination.

· Knowledge: A preference for true over the false belief. It corresponds to that basic drive we call curiosity, a drive which leads us to reject any celebration of self proclaimed ignorance or superstition.

· Play: Each one of us can see the point of engaging in performances which have no point beyond the performance itself.

· Aesthetic experience: The appreciation of beauty.

· Sociability or friendship: Acting for the sake of one’s friend’s purposes, one’s friend’s well being.

· Practical reasonableness: The basic good of being able to bring one’s own intelligence to bear effectively on the problem of choosing one’s action and life style and shaping one’s own character.

· Religion: Questions of the origins of cosmic order and of human freedom and reason. Expressed thus, this view is a good that even an atheist can value.

Finnis sets out a catalogue of forms of human flourishing and these seven human goods are irreducible.

Joseph Kohler (1849-1919)

· Kohler was greatly influenced by the Hegelian Legal Theory,

· He defined law as the standard of conduct which in consequence of the inner impulse that urges man towards a reasonable form of life, emanates from the whole, and is forced upon the individual,

· In this book “philosophy of law” he postulates vitalizing of culture or civilization and this end is achieved through the instrumentality of law,

· In actual fact, civilization is changing and progressing and law has to adopt itself to the constantly advancing culture,

· Everybody should have its own postulates of law to be utilized by society according to requirements.

Rudolf Stammler (1856-1938)

· He was an exponent of natural law with a variable content,

· He first distinguished between technical legal science which concerns a given legal system and theoretical legal science which concerns rules giving effect to fundamental principles,

· The former deals with the content of law and the latter relates them to ultimate principles,

· He distinguished between the concept of law and the idea of law or justice,

· Law is necessary a priori because it is inevitably implied in the idea of cooperation,

· It just aims at harmonizing individual purposes with that of society,

· He defined law as a species of will, other-regarding, self-authoritative and inviolable,

· According to him, in order to achieve justice, a legislature has to bear in mind two principles: principles of respect and principles of participation.

Ø Revival of Natural Law

In the 20^th century there has been a revival of interests in natural law. Demands for recognition by jurists and legislators of need to preserve human dignity in all circumstances were linked to movements calling a restatement of human values and recognition of the responsibility of the legal system for their protection. The beginning of the 20^th century, however, saw the revival of natural law theories. The main reasons according to Salmond for this revival are-

· The desire to re-establish closer relation between law and morality.

· Dissatisfaction with the command theory of law which has banished morality from its fold.

· The development of sociological theories and science.

· The development of the idea of relativity in modern jurisprudence which means that laws are universal and may vary in the content with time and place.

· Concepts of an eternal and immutable set of principles of law were an attraction of jurists and others.

· Natural law is used here to refer to the jurisprudential doctrine based on the absolute value judgment.

· Guarantee of human rights after World War II.

· The Nuremberg Trial of War criminal in 1945-46 was the occasion for a restatement of human values.

· The pure positivist approached failed to solve the problems created by the changed social condition.

· UN charter provided principles of equal right of all people.

Ø Analytical/Positivist School of Jurisprudence

The analytical school is also known as Austinian school since this approach was established by John Austin. It is also known as the imperative school because it treats law as the command of the sovereign. The analytical or positive school of jurisprudence views law as it is and not as it ought to be. It lays emphasis on legislation as the most prominent source of law. It receives law as a closed system of pure facts from which all norms are excluded. This school introduced precision in legal thinking, provided us with clear and scientific terminology and precludes all external considerations that fall outside the purview of law.

The positivist movement in law heralded in the beginning 19^th century as a reaction against the a-priori methods of thinking by which the whole legal philosophy was dominated. Its basic themes are logic, consistency, certainty, clarity and above all, a strict separation between is and ought. Legal positivism is concerned neither with the past of law nor its future, but law as exists here and now. The key theme of positivism is the supremacy of technical sense of law and the outright rejection of morality, ethics, norms and values in law. The goal of positivist school is to draw a clear cut demarcation between law and morals, between law as it is and as it ought to be. Since morality and ethics are neither verifiable nor supported by any evidence, it is rejected in law. Morals and values are merely persuasive; they lack binding force. Hence, they have no room in legal concepts. Human made legislation is the only authoritative source of law. Law is self authoritative and has self content. As such, positivism is not equated with other immeasurable things like goodness and badness.

Basic tenets of Analytical School

· Law is the command of sovereign that is made by a sovereign authority of a state.

· Force is the essence of law that is which cannot be enforced is not a law.

· Jurisprudence has little to do with the vague and abstract concepts of natural law.

· Decisions can be deduced logically from preset rules without reverting to social goals, policy or morality.

· Moral judgments cannot be defended by rational argument or evidence.

· Law is a state made product. It is something framed consciously by lawmakers, whether legislative or judicial.

· We should concern ourselves only with the pure facts of law and nothing else.

· Logic is the major tool for studying law.

· Statutes are the dominant source of law from which rules of human conduct flow.

The factors which led to the emergence of the analytical school are as follows:-

a)Impact of Natural Law: - The natural law school pre-dominated juristic thought up to the beginning of the 18^th century. Principles of natural law were considered as supreme and, according to some writers, could override the man-made law. The term natural law was differently defined and understood by different writers and no single general acceptable meaning of the term natural law or criterion for ascertaining the content of the principles of natural law was there. Nature, reason, supernatural source, justice, utility etc. were some of the bases from which natural law was supposed to have been derived. The analytical school was a reaction against the airy assumptions of natural law.

b) Impact of progress in physical sciences: - The phenomenal progress in the realm of physical science in the beginning of 18^th century had its impact on juristic science. The physical scientists adopted the aposteriori (from particular to general) approach and rejected the a priori (from general to particular approach of natural law). Jurists, of that time also advocated the study of law systematically by aposteriori method. They adopted the empirical approach which implied rejection of natural law as a system of norms whose validity depended on subjective factors. Empiricism, on the other hand, relied on positive law which is ascertainable and whose validity is not dependent on subjective factors.

c) Political factor: - The analytical school was established to justify the power of the ruling monarch against that of other agencies e.g. feudal lords, pope etc. The rise of analytical positivism coincided with the displacement of the ecclesiastical order by modern nation states which became free not only from the interference of the pope but also from the power which the feudal lord earlier exercised thereby limiting the authority of the sovereign.

Criticism

· All commands need not be laws, e.g. a gunman’s order. Moreover, command suggests the existence of a personal commander. However, in modern and democratic societies, it is impossible to identify any such commander.

· The positive theory is devoid of rights and liberties. It only includes command and sanction.

· This belief system tends to produce autocratic rulers like Hitler.

· Law can never be detached from the cherished principles of justice, virtue and morality. In fact, law is a state recognized code of morality.

· Custom is the second biggest source of law after legislation. But the positivists have grossly missed this aspect.

· Positivism grants little or no room for judge made law. In fact, the rise of precedents and their binding force spell otherwise.

· In modern democracies, we may find countless laws without sanction, such as the Nepal Treaties Act, 1990. Still, they are equally effective. Likewise, power conferring rules do not qualify as laws under Austin’s definition. Still, election laws, property laws and contract laws are laws in true sense.

· The positivist scholars have over emphasized the command factor. Law in egalitarian societies is perceived as the expression of general will of people. Law remains in existence even after the extinction of lawgiver.

· Sanction is not the sole factor to induce public obedience towards law. Other considerations such as deterrence, sympathy, reason, fear of sin, etc. also motivate people to be law abiding citizens.

· Austin holds that international law is toothless and hence is just a positive morality. However, in modern practice, international laws such as the charters of UN and NATO authorize the imposition of sanctions and intervention against the erring parties under compelling circumstances.

· Customary laws, international law, constitutional law in England do not fit into the positivist theory. Still, they are laws in theory and practice.

Jeremy Bentham (1748-1832): - He is the earlier philosopher who focused on supremacy of law rather than morality. He simply defined law is the command of sovereign backed by sanction. But his sanction is reward and pain. According to him, law as the assemblage of sign, declarative of volition conceived or adopted by sovereign in a state, which is either individual or collective and intent to apply sanction. In his definition of law, there are eight elements which are as follows: Source, Subject, Object, Aspect, Extent, Expression, Force, and Remedial appendage.

In the combination of those entire elements, law will be applicable. He has classified two kinds of jurisprudence one is censorial jurisprudence and another is expository jurisprudence. Censorial jurisprudence is related to ought and morality that is not primary concern area. Our primary concern area is expository jurisprudence. Expository jurisprudence is related to be or purely law with the commanding power, there are two kind of expository jurisprudence, one is proximate expository jurisprudence and another is remote expository jurisprudence. In proximate expository jurisprudence concept, there is direct command and remote expository jurisprudence concept, there is indirect command.

He has classified different kinds of punishment system. According to him, political punishment, physical punishment, moral punishment, religious punishments are the major punishment system. But, political punishment is our concern area because it is related to law. Political punishment is real punishment; it’s enforced by the state. He is also the supporter of quantitative utilitarianism concept. His quantitative utilitarianism is based upon greatest happiness of the greatest number of people. While making law, this concept has to be applied. Its main objective is to maximize reward and minimize pain. It is related to justice concept and sociological understanding.

· Bentham utilitarianism has promoted by J.S Mill.

· British formalism dominant by parliament.

· Law made by parliament and law is posited.

· Hedonistic calculus theory or felicific calculus theory element. 1) Subsistence, 2) Abundance, 3) Equality, 4) Security.

The element of indicator of pleasure

Intensity, Duration, Certainty, Nearness, Fruitful, Extension, Purity.

John Austin (1790-1859): - He is taken as the father of British positivism school. According to him, law is the command of sovereign backed by sanction. In the sanction of the Austin, it is only negative. According to him, pleasure or reward cannot be sanction. To be sovereign, there should be the character of illimitability, not subordinate, united and unique. There is the combination of sovereign, command, sanction. Habitual obedience is expected with the command of sovereign. He has also tacit command which means indirect command. When the people face the tacit command there will be double benefit. One benefit is they don’t have to face sovereign and another benefit is if people follow tacit command, he/she equally follow the command of sovereign also.

He has further classified law into law properly so called and law improperly so called. Law improperly so called is also further divided into law by analogy and law by metaphor. Law by analogy refers to law of nature, law of fashion etc. whereas law by metaphor refers to law of gravity and gravitational power. Law properly so called is also further divided into law strictly so called and law not strictly so called. Both are related to human law. Likewise there is also the command in divine law which also known as god law which cannot be practically proved or defined. It is also the form of law properly so called. Law not strictly so called of human law is related to law of club, parent order etc. whereas law strictly so called refers to positive law. It is impose by politically superior person to political inferior person. It is real law. It is associated with law is the command backed by sanction. He does not hesitate to conceptualism international law and constitutional laws are positive morality. So, they are not law at all.

H.L.A. Hart (1907-1992): - The philosophy of H.L.A. Hart is also called Austinian analytical positivism. He is subtly analyzed each and every aspect of law making to law enforcement. He doesn’t only focus on the imperative approach of law but also detail area of process of law. He is also accepted law in the command but there is defect in Austinian philosophy because his philosophy is based upon gun man theory. Austin has also mentioned habitual obedience but it is mistaken because if somebody obey whatever rubber command with gun in the bank rubber case. In such situation, the habitual obedience concept is meaningless. Likewise, Austinian philosophy is more based upon criminal law approach rather than other law. In this way by criticizing Hart. Hart has broad more focused on detail analytical aspect from social origin of law to enactment its application. Hart is more positivists but he has not highlighted to accept to natural law concept as a subsidiary part of law. Austin says the word command to refer law but Hart replaced command with rule.

He has distinguished two kinds of rule, one is primary rule and another is secondary rule. Both rule cannot work is isolation. While making the understanding of primary rule, social rule and primary rule should be well understood with the semi-sociological concept. There is only internal aspect in primary. But there are both internal and external aspects in social rule. Internal aspect is self evaluative and self critical, that is the nature of legal rule. Traditionally, primary rule was working perfectly with the development and change in society. Primary rule has started to lose functioning because there is problem or defects arise. This defect is uncertainty, static character and inefficiency. In the regarding the issue of uncertainty, there is problem who recognized the law because central power cannot control or cover all the society. There is no doubt a society change but law remains same. Static law cannot be effectively problem arise who adjudicate the law. In this way, to solve the problem of primary rule. Hart has conceptualized secondary rule. Secondary rule is related to rule of recognition, rule of change and rule of adjudication. Law can be workable only with union. Between primary and secondary rule, primary rule is related to duty imposing law whereas secondary rule is related to power conferring law. Duty imposing rule is targeted to subject whereas power conferring rule is targeted to authority. Minimum degree of efficacy is also necessary to be a rule. There are two kinds of efficacy one is pervasive and another is widespread. Pervasive efficacy refers the acceptance by each and every individual person whereas in widespread efficacy the majority of people of society accepted rule. It shows the efficacy in rule in society.

Rule will not always be clear. If rule is clear rule will be applied. If rule is not clear then the rule situation of skepticism occurs. It means either rule is applied or not, it is not predicted. That situation is open texture of law or penumbra situation. For example, no vehicle in the park either refers to moped or cycle or not. In such situation if case comes regarding the issue of moped or cycle, then it has to be settled at any cost. It means no case can remain unsettle. It must be settled through the discretionary power to the judge. Discretionary power is related to conscience of the judges.

However, Dworkin rejects this concept of the Hart. Hart says open texture or penumbra situation occurs in the time of unclear rule but Dworkin prefer to use hard case for same situation. To solve this problem. Hart has given discretionary power to the judge but it is completely being rejected by Dworkin because judges are not politically appointed person. So, they have no right and power to make law and policy. There is no doubt that case has to be settled. To settle the case, either policy or principle has to be used. Policy is political agenda. If there is inconsistency between policy and principle, principle will prevail. Dworkin rejects to term rule and accept the term principle. According to him, rule is all or nothing but principle is always all things. Rule says about yes or no but principle says high or low degree. To support his principle concept. He has presented case Riggs vs. Palmer in 1889 USA case. Where nobody can get benefit from his own criminal mind is accepted. Principle is associated with right thesis. Right is taken as trump which is enviable even by the state. He reject morality concept but does not hesitated to accept community morality.

Ø Historical School of Jurisprudence

The historical school of law believes that law is an outcome of a long historical development of society. In fact, law beings with social customs, conventions, practices and relations of people. Thus, law is the product of forces and influences of the past. This brings the fact that law should change with the changes in society and the will of people. Otherwise, such law will fade into oblivion.

The central idea of historical law school is that a nation’s customary law is its truly living law. The task of jurisprudence is to uncover this law and to describe its social significance in historical studies. In positive terms, historical jurisprudence identifies law with the consciousness or spirit of people living at a given time. Law is found by the jurist and made by the state or its organs. Law is not a political but a national or folk phenomenon. It is a social and not an individual production, similar to language. Law cannot be abstracted from a particular group of people or its genius. Law, to this school, is a historical necessity and not an expression of will or reason and therefore cannot be transplanted.

The sum of historical theory is that all law is first developed by custom and popular faith and then only by jurisprudence. To Savigny, the nature of any particular legal system of law is a reflection of the spirit of people who evolved it. All law is a manifestation of common conscience. Broad principles of law are to be found in the spirit of people and they display themselves in customary law. Custom not only precede legislation but may also follow it. Hence, legislation should always conform to popular consciousness of people over whom it will rule.

Basic tenets of Historical School

· Law is a matter of unconscious and organic growth. Law is found and not made. It is self existent.

· Law came into being even before the state did.

· Law is independent of political authority and enforcement.

· Law is enforced by the sovereign because it is a law already. It does not become a law simply because the sovereign enforces it.

· The typical or standard law is the custom.

· Custom constitutes a formal source of law. Other sources of law such as the precedents and legislation derive their authority from custom.

· While interpreting a law, the judges are required to review the history of legislation in question.

· Law should always conform to the popular consciousness of people, popularly known as Volksgeist.

· Laws cannot enjoy universal validity nor can they be devised on the basis of certain rational concepts or eternal principles.

Fredrick Karl Von Savigny (1779-1861): - Although Savigny is the member of codification committee in Persia. He has rejected the codified law, because all law of society cannot be codified. He further says, law cannot be made but found in society itself. Law is decided by the social practices. There is no difference between law and custom, tradition, rite-ritual religion, culture etc. He does not highlight to accept to Volksgeist concept which is the kind of the popular will and spirit of the people. To conceptualize historical understanding, he has more focused upon Roman law. He studied phase wise and conceptualized the role of historical understanding in legal concept. Sometimes popular will of the people reflect law of the society. Savigny equates law with language and culture. Law came with the origin of language. If language dies, the laws will also dies. In this way, there is relationship between law and social practices. According to Savigny parliamentary law is subsidiary law, not primary law. Custom, tradition is primary law. However he advocated are the trusties of the people. So, it is accepted. He has spread highly nationalism concept or patriachialism concept. Nevertheless, he is being criticized for the reception of Roman law. Savigny is rejected universalism concept of law and analytical concept of law both.

Criticism

· In modern age, law is made. It is not found.

· In present court also make law.

· Inconsistency in his theory.

· Volksgeist not the exclusive source of law.

· Custom is not always based on popular consciousness.

· He ignores other factors that influence law.

· Many things unexplained.

· Legislation is best than custom.

Sir Henry Maine (1822-1888): - He has good understanding of Hindu law, Christian law and Islamic law extensively and has written ancient law 1861. In his writing, he has anthropological understanding of law. He claimed that law is developed along with human civilization. There are two kinds of society, one is static society and another is dynamic or progressive society. Static society refers to traditional stage of society. In static society, there are three stage of do legal development. First is traditional command concept of law in which, there is command pate rate, command of chieftain or king. Same command as established in society as custom. It is second stage of ancient legal development process. It is customary period. Latter same kind of action and reaction come into being that has resulted codification process. Some customary laws and newly emerging laws are codified in this stage. Static society is remain, is same fusion whereas dynamic society further goes ahead.

Even the progressive society, there are three stages of legal development first one is legal fiction. Legal fiction is brought to solve the rigidity concept of codified law. Though it is not written intension of law is particular in court, which is legal fiction. In the second stage of progressive society, equity law is come into being. It means inner conscience can be used rather than the provision of codified law that is equity law. Finally, the concept of legislation is appeared. Legislation is supreme law and most developed form of law. This development has led to change the status of people to contract that is like of a power to the slave or from slave to contractual right. His philosophy is based upon anthropological concept. Law and human being are interrelated.

Criticism

· Maine has over simplified the early stage of society’s development.

· Methodology of enquiry of Maine has been found inadequate.

· Era of pre-scientific anthropology Paleolithic age was unknown.

· Custom was not distinct from law.

Friedrich Puchta (1798-1856): - Another important exponent of the historical school is Puchta. He agreed with Savigny that the genesis and unfolding of law out of the spirit of the people was an invisible process. He says, “What is visible to us is only the product, law, as it has emerged from the dark laboratory in which it was prepared and by which it became real.” His investigations in the popular origin of law convinced him that customary law was the most genuine expression of the common conviction of the people, and was for this reason, far superior to legislation. He considered explicit legislation useful only in so far as it embodied the prevailing national customs and usages.

Ø Realist Law School of jurisprudence

The Realist approach to law is a part of the sociological approach. That is why it is sometimes called as the left wing of sociological or functional school. It differs from sociological school in that this school neither studies the social effect of law nor it starts with any a priori like balance of interests or social engineering, rather it concentrates on a scientific observation of law in its making and working. There are mainly three reasons for the establishment of the realist school of law. Firstly, it was established as a reaction against sociological jurists who were emphasizing the social effect of law. Secondly, it was established to ignore the theory of interest as given by Ihering and the theory of social engineering as advocated by Pound. Thirdly, this school was established to point out the importance of courts and importance of the Judges-the human factor in the judges and the lawyers.

There are two trends of the Realist School. One is the American Realist School, another one is Scandinavian Realist School. American realism is the product of a pragmatist and behaviourist approach to social institutions; practising lawyers or law teachers have developed it with a characteristic Anglo American emphasis on the work of courts and judicial behavior, as a corrective to the philosophy of analytical positivism which dominated Anglo American jurisprudence in the nineteenth century. They have stressed law in action, law as experience, as against legal conceptionalism. Holmes, Gray and Jereme Frank are the main supporters of the American Realist School. Scandinavian realism is a philosophical critique of the metaphysical foundations of law. They have put forth a philosophical justification. Olivercrona, Lundstedt, Ross and Hagerstrom are the main exponents of the Scandinavian Realist School.

American Realism: American Realism is based upon pragmatic concept. Its main theme legislative indeterminacy. Law cannot be understood and isolation rather is shall be understood on this basis of interdisciplinary approach. It means law has relationship with different social discipline like economic, sociology, culture, politic etc. All the proponent of American realism is jurist and lawyers. They aspect objective investigation and legal action and experience. According to Karl Marx, Llewellyn American realism includes followings: characteristic

1. Law is not static but in flux.

2. Law is means to get social end.

3. Society changes faster than law.

4. Traditional legal concept can describe court practice.

5. Law has to be evaluated in terms of its effort and consequence in society.

6. Narrow casting is necessary from general to particular.

7. Insistence on sustain and pragmatic attack which includes rationalization, relative significance and uncertainty of legal process.

Oliver Wendell Holmes (1841-1935) (Rule skeptics):- He was the founder of American realism who worked in the supreme court of USA from 1902- 1932. According to him, law has to be evaluated on the basis of pragmatic approach. Specifically, he has applied pragmatic concept of John Dewey and William James in law. According to him, the life span of law depends upon experience and law must focus on thing and fact. He says that law refers to not only logic but also experience. He further says that morality must be excluded from legal understanding. He has raged voice of bad man concept. Clients never ask with advocated which law is their but only asked what kinds of punishment will be given by the court. So, the consequences of the law should be understood from the point of view of court practices. He also emphasizes on role of interpretation of Judges and him also theory that Judges don’t make law rather they practical interpretation of law. Because legal theory are too little which are important part of legal dogma (doctrine). He has only emphasized that court interpret law very pragmatically irrespectively of all other things. He says formal law cannot be sufficient to deal social issue. So, new law should be made. His theory is adversely criticized by Twinning, in his article bad man revisited in 1973. He has to Holmes suggested that there is equal influence of procedural law. Holmes did not focus on it. Law has to be evaluated on the basis of law making, interpreting, fact finding, pursuing and predicting which overlaps the function of Judges, legislator and advocate. Nevertheless Holmes is rule skeptic because either formal law is applied or not, formal laws are too little that cannot be sufficient for social necessity. Therefore, court can interpreter beyond the issue of rule. So, he is rule skeptics. Because of this reason uncertainty in law arises. For this purpose, court has to be active. It means certainty in law is illusion.

Justice Gray (1839-1915):- The main theme of Gray’s philosophy of law is the practice of the court. All the formal law or legislative law is only secondary law. They are mere dead word until they are being activates by the court. So, court decision is law. The law is what judges decide. Everything is the source of law except court interpretation. Courts put life into the dead words of the statute. Judicial organs determine the legal rights and duties. According to him, there are three kinds of Jurisprudence: Particular jurisprudence, comparative jurisprudence and general jurisprudence.

Jerome Frank (1889-1957):- Judge does not make law but, instead they discover it. According to him, individual decision of the judge is the par excellent. The temperament of the judges has an important bearing on the mechanism of law. He said that past experience of the judges play a dominant role in molding the law and giving it a concrete shape. Law is what the court has decided in respect of any particular set of facts. The opinion of lawyers is only a guess as to what the court will decide. He preferred a constructive legal skeptic rather than a realist. He insisted that there were two groups of realists: rule-skeptics and fact skeptics. The rule skeptics rejected legal rules as providing uniformity in law and tried instead to find uniformity in rules evolved out of psychology, anthropology, sociology, economic, politics etc. The fact- skeptics, of whom Frank is one, depart not only from the idea of rule certainty but also point to the uncertainty of establishing facts in the trial courts. A legal decision is the result of the application of a rule to the facts as found by the judge. In practice, all legal arguments have a litigious setting. He suggested that the quest for certainty in law is in fact a search for a father-symbol to provide an aura of security. He called on the lawyers to outgrow their childish longings for a father-controlled world and follow the example of Justice Holmes, the completely adult jurist. Rules are merely word formulae. Law in the first sense is a term which designates all the actual processes which take place in time, the prosecution of litigation, the advisory work of the law office, the judicial administration of disputes and so on. Law in the second sense is an academic subject matter, a body of propositions having certain formal relations capable of analysis. The science of law as official action is an empirical observation and includes a study of sociological and psychological phenomena as well as knowledge of law. The science of law in discourse is a purely formal science like mathematics. His main attack was originally directed at the myth of achieving certainty through legal rules.

Scandinavian Realism: Scandinavian realism is being dominated by the philosopher of Sweden and Denmark. The school of Scandinavian realist jurisprudential is best known through the writing of its founders; Hagerstrom, Lundstedt, Olivecrona and Alf Ross.

Scandinavian realism is a philosophical critique of the metaphysical foundation of law. They have put forth a philosophical justification. Scandinavian realists were opposed to metaphysical speculation and concerned with the general investigation of the fundamental facts of legal system. The nature of rights and duties were of particular interest to them. Principal features of Scandinavian realism are:

1. Metaphysics is totally rejected, it is interpreted as nothing more than a survival of mysticism, meaningless study its absoluteness and objectivity are illusion.

2. Natural law jurisprudence is unacceptable.

Scandinavian legal realist movement involved essentially a reaction against the chimera (Fantasy) of metaphysics-its inadequacies and distortions and a concentration on the facts of legal life Scandinavian realists are less concerned than the American realists with behavioral aspects of adjudication. The reality may be discerned by an analysis of the facts. So called inherent qualities of legal concepts are worthless.

Axel Hagerstrom (1868-1939):- He is the founding father of Scandinavian realism. He is also known as spiritual father of Scandinavian realism. He believes that right, duty, obligation all are meaningless concept and they are only existed in our mind and not reality. The concept of justice is highly subjective and it is evaluation of people which can never be materialized or conceptualized. He correlates expression of intension in terms of dispute settlement. Before the dispute or problem, there is no any pre-suppose law. When dispute arises then it has to be settling that only legal issue arises. Law is like word magic. For example oath of marriage, divorce or other similar ritual expression. He says that what idea has one one’s and in making a declaration of intension in the sphere of private law. In, so far as one is thinking of coming into existence of right and duty in connection with it. This concept is expressed present in his writing in inquiry into nature of law and moral. In this way the tradition law is the psychology of people concept has been started by Hagerstrom. He completely rejects existence of morality. He has presented number of example from Roman tradition and ritual. Right, obligation and property are mere subjective matter and it never can be objective matter of society. It is only the psychological strength of people not more than that.

Vilhelm Lundstedt (1882-1955):- He is also the follower of Hagerstrom. He has accepted all the philosophy of Hagerstrom. So, he also says that right justice is illusory. That never can be materialized. Law is direct justice but justice never guides law. Law is the simply the fact of social existence and all other things are mere illusion. In his writing legal thinking revised. He says that character of justice is the result of balancing against interest for social welfare which is the matter of only evaluation. Legal activities are compulsory for the purpose of existence of society. Minimum of degree of culture in which people tried to attain can also be standard for law. So, he understands his based upon sociological concept. Interest of legislation and administrative power to be integrated or form to maintain the balance of social interest otherwise there will be social disorder or chaos. He has linked justice with the chimera.

Karl Olivecrona (1897-1980):- He is also the follower of Hagerstrom tradition. He says that right is only feeling of strange and psychological matter. Law has to be equated with social fact. This has to be evaluated on the basis of independent imperative. It is not an imperative is conceptualized by Austin. There is direct command in his Austin philosophy that cannot be found in law. He also conceptualized, morality is found by law but morality never creates law. In his writing, law has social fact. He says that there is any binding force of law and the content of rule of law is the idea of imaginary action by people and imaginary situation. In fact, rule of law is independent, imperative, ordinary legislation, actual use of forces from state organization. If there is no force from state organization the rule or law meaningless. So, law is the force. In his writing legal language and reality, he says that directive language is necessary rather than reported language. Legal performance with authority is expected like nomenclature of ship and relationship between law and custom are completely related to play of the words. Everything depends on psychological announcement on the issue.

Alf Ross (1899-1979):- He is the Danish philosopher who also accepts Hagerstrom tradition and some extent the concept of American realism. He stresses justice as an expression of emotional feelings. To invoke justice, the same as ‘banging on the table’ it is an emotional expression, transforming one’s demands in to an absolute postulate. Ross, assumption and interpretation lack supporting evidence. He regarded the doctrinal study of law as ‘an empirical social science’. His conclusion is that “valid law” means the abstract set of normative ideas which serve as a scheme of interpretation for the phenomena of law in action.

Main tenets of the Scandinavian school are:

i. What courts do is law.

ii. Decisions of law courts are supreme.

iii. Dogmatic formulation in nothing to do, so far law is concerned.

iv. Factors viz. human factors or force which influence a judge in reaching a decision are within the field of study of law.

Similarities of American realism and Scandinavian realism

· Both are realist.

· Both realism concepts reject natural law.

· Both are rejected Analytical school.

· Both are based on Sociological school.

Ø Different between American realism and Scandinavian realism

S.No.	American realism	Scandinavian realism
1	Holmes is founding father.	Hagerstrom is founding father.
2	Gray, Karl Llewellyn, Jerome, frank are contributor.	Lundstedt, olivecrona, Alf Ross are contributor.
3	American realism is jurist and lawyer.	All Scandinavian realism is philosopher.
4	American realism is pragmatic.	Scandinavian realism is behaviorist.
5	American realism is focused on law and action.	Scandinavian realism is focused on theoretical concept.
6	American realism is focused on court.	Scandinavian realism is focused on mind and psychology.
7	American realism is specific.	Scandinavian realism is general.

Ø Sociological School of Jurisprudence

Comte was the first writer to use the term ‘sociology’ which he described as a positive science of social facts. Subsequently writers and jurists tried to find a link between sociology and law. Gurvitch, for example, said that the meeting point of sociology and law is sociology of law. Sociology of law should, however, be distinguished from sociological jurisprudence. The latter primarily studies law but in doing so it studies its relation with and impact on society; whereas the sociology of law primarily studies society and studies law only peripherally.

The sociological school considers law as a social phenomenon and examines law in relation to society. It takes a fundamental functional view of law; it is concerned not with social circumstances which call for and conditions the working of legal institutions. Various factors paved the ground for the sociological school of thought in jurisprudence. Spencer had applied Darwin’s theory of evolution to society. He compared the social organism to a biological organism and said that an individual has to develop a sense of social solidarity; law is to take note of this and while assisting the individual in developing this sense of social solidarity propounded the organic concept of society and had developed the theory of general will. Even Bentham, who was an analytical positivist, had, by expounding the principle of utility, provided indirect support to the sociological formulation of law. In the nineteenth and twentieth century the sociological approach was developed and elaborated by jurists like Duguit, Ihering, Pound and others. According to pound, sociological jurisprudence refers to: It studies the social effect of legal precept, institution and doctrine, It studies sociological background in law making process, This school studies the means to make legal precept, doctrine effective in society, It studies juridical method, It studies legal history, social background and social effect of laws and institution and doctrine in society, It studies the application of law in individual case, It studies those means which can be effective tools to achieve desire purpose through law.

Basic tenets of Sociological School

· Sociological jurists regard the working of the law rather than the abstract content of authoritative precepts.

· Sociological jurists regard law as a social institution, which may be improved by intelligent effort. Hence it is the task of the jurists to find out the best means of furthering such efforts.

· Sociological jurists lay stress upon the social purposes which the law sub serves rather than upon sanctions.

· Sociological jurists look on legal institution and doctrines and precepts functionally. They regard the form of legal precepts as a matter of means only.

· According to this school, the main function of law is to fulfill the needs of society. Social requirement are accomplished by law. Law is also a social instrument for maintaining law and order in the society. Paton is of the view that law is a social machinery for securing order in the community. Since all the jurists of this school lay stress upon the functioning of law in the society they are also known as pragmatists.

· Law is a matter of unconscious and organic growth. Hence, law is found and not made.

· Law is not universal in nature. Similar to language, it varies with people and age.

Rudolph Von Ihering (1818-1892):- He is father of sociological jurisprudence. Earlier he studied Roman law and become the part of historical school. Latter he has left historical school and has entered into sociological school. His main philosophy is mentioned in his writing law as means to an end. He has highlighted in purpose in law. He says that everything of society works for the reason. Stone falls because without support in must falls. There is the reason. Even inferior animal like monkey works for the reason. However, human beings are different than those animals because human being not only works for reason but also for purpose. He says there are two kinds of interest in society: one is public interest and another is private interest. Private interest is selfish interest whereas public interest is unselfish interest. So, public interest prevails over private interest. He has further analysis the principle of lever of the social motion. There are four kinds of lever of social motion. These are reward and coercion, and duty and love. Reward and coercion are related to sanction whereas duty and love are related to altruistic action. There are different social factor which are interdependent. Basically, there is the legal concept which covers different area. These are covers extra legal, mixed legal and purely legal condition. Extra legal condition is related to law of nature like climate whereas mixed legal condition is related to self-preservation, reproduction, commerce and labour. Likewise, purely legal conditions are related to law of state which refers to public interest. So, he defines law as the sum of the condition of social life in widest sense the power of state through external compulsion mechanism.

Roscoe Pound (1870-1964):- Roscoe Pound is regarded as one of the most noted American Sociological jurists of twentieth century. His “Readings on the History and system of the Common Law,” “The Spirit of Common Law,” “Law and Morals”, “Interpretation of Legal history” etc. are the most original outstanding works in the field of legal philosophy in the United States.

On the basis of philosophy of Ihering, Roscoe pound has depended his philosophy of Ihering. Nevertheless Joshep Kohler has adversely criticized the materialistic interpretation of Ihering. He says materialistic is dead and philosophy is spirit of life. Kohler philosophy is based upon historical evolutionary approach supporting cultural values. Roscoe Pound is also accepted cultural value not from the point of view of historical evolutionary approach. The philosophy of Roscoe Pound is based upon social engineering concept. His social engineering concept is for balancing the interest. According to him, the law has to work as a social engineer. So, law has to reduce fiction and maximize the profit and benefit. His philosophy is widely influence by American technocratic society.

According to Roscoe Pound, law should focus on the social fact. In order to active the purpose, there should be reconciliation in interest. While giving individual right as an interest following procedure has to be implemented.

· Preparation and recognition for difference interest (public, social and private).

· Definition of limitation of interest for recognition.

· Securing those interests on the basis of limitation.

· Preparation of list of interest.

· Selection of interest to get legal recognition.

· Demarcation of the limited of select interest.

· Consideration of method and means to secure those interests.

· New interest will be evolved (evolution).

Roscoe Pound had elaborated taxonomy (broad classification of interest). According to him, there are three kinds of interest are as follows:

A. Individual Interest:

1. Interest of personality: - This includes - the physical person, freedom of will, honour and reputation, privacy, belief and opinion.

2. Interest of domestic Relations.

3. Interest of substance: - This includes- property, freedom of industry and contract, promised advantages, advantageous relations with others, freedom of association, and continuity of employment.

B. Public Interests:

1. Interest of the state as a juristic person: - This includes- the integrity, freedom of action and honour of the state’s personality, and claims of the politically organized society as a corporation to property acquired and held for corporate purpose.

2. Interest of the state as guardian of social interest.

C. Social interest:

1. Social interest in the general security: - This relates to- general safety, general health, peace and order, security of acquisitions, and security of transactions.

2. Social interest in the security of social institution: - This comprises- domestic institutions, religious institutions, political institutions and economic institutions.

3. Social interest in general morals: - This covers a variety of laws for example, those dealing with prostitution, drunkenness and gambling.

4. Social interest in the conservation of social resources: - It covers- conservation of natural resources, protection and training of dependants and defectives i.e., conservation of human resources.

5. Social interest in general progress:- This covers- economic progress which includes (freedom of use and sale of property, free trade, free industry, encouragement of invention by the grant of patents), Political progress which covers (free speech and free association), Cultural progress which covers (free art, free letters, free science, promotion of education and learning and aesthetics)

6. Social interest in individual life: - It involves- self-assertion, opportunity and conditions of life.

These are not interest the complete list of interest according to Roscoe Pound. New and new interest has emerged in society. These interests have to be recognized. While recognizing new interest rule, principle, conception and standards are being used. While recognizing new interest, Jural postulate have to be paid attention. These Jural postulates are as follows:

i. No intentional aggression can be imposed done other.

ii. There should be beneficial use of any discovery.

iii. Everything has to be worked in a good faith and restore correction unjust and enrichment.

iv. Due care has to be done or other unreasonable risk or injury to other bad.

v. Proper control of property has to be allowed.

vi. Employer should give security to employee.

vii. Industry has to pay compensation for wear and tear.

viii. State has to provide support for misfortune people or burden of society has to be carry by society as a whole.

Some these balancing of interest is related to the measurement value of society, it is the end or purpose of law.

Criticism:

· Pound’s social engineering is very technical.

· Pound’s jural postulate is hypothetical.

· Pound’s various interests are theoretical.

· It is difficult to balance the various interests.

· The term of engineering this equates society to a factory like machine.

Eugen Ehrlich (1862-1922):- He is the supporter of the sociology of law. According to him, society is superior to legal concept. Law coordinates social issue but as per the change in society, law will also be changed. He says, law is also the one part of the broader society. All the social disciplines have in equal role to determine the issue of law. He says, there are two kinds of law one is primary law and another is subsidiary law. Primary law is related to living law whereas subsidiary law is related to formal law. Formal law has made by legislature. Formal law cannot fulfill the necessity of society only; living law can fulfill the necessity of society. Living law has developed itself in society. He has also conceptualized two kind of norm, one is norm of decision and another is norm of conduct. Norm of decision is related to the statutory law as formal law whereas norm of conduct is related to self generating social rule as it is living law. He has highly emphasized in the role of living law because society change faster than law. Application of law as formal law will be more rigid and it cannot be possible to equivalently use with living law because there will be gap between living law and positive law (formal law). To fill the gap between living laws positive, discovery of law is necessary. The provision of law is there in living law and living law is amalgamation of all other social discipline. From this social discipline, living law has to be finding out by conducting research. According to him, there are three method of getting of discovery of law which are judicial decisions and which are only self evidentiary, modern business document and observation of the people. Observation is based upon empirical research. He has criticized for his boundless jurisprudence. It is difficult job to separate his jurisprudence from other social discipline.

Emile Durkheim (1858-1917):- The philosophy is also based upon sociology of law. According to him, there is no difference between social solidarity and law. Law is measuring rod of society. Society refers to the social solidarity situation. When people cannot fulfill necessity. They make a contract gradually other people will join there, that is social solidarity concept. According to him, there are two kinds of goods, one is common goods and another is desire goods. Common goods are essential for all and there is no necessity of social solidarity in desire goods. There is social solidarity; it means there is peace and order to maintain. If there is no social solidarity, there will be social chaos. He has classified two kind of social solidarity on the basis of social solidarity, one is referred to mechanical social solidarity and another refers to organic social solidarity. Mechanical society is related to homogeneous society and social solidarity will be homogeneous and mechanical in this society. Mechanical social solidarity is quite penal, repressive and control whereas in organic social solidarity, there is division of labour properly. Division of labour is possible because of the specialized in knowledge and skill. But division of labour is absent in the mechanical social solidarity. Society runs in system. No control and repression are necessary to maintain social solidarity that is organic social solidarity. Organic social solidarity is related to heterogeneous society. According to him, law is external index which is indicates social norms and symbolizes social morality. He has made writing on property, contract and crime. He says, if individual cannot fulfill his desire from society, there will be no option left for him/her. Ultimately, they commit suicide. He has accepted morality. Organic social solidarity and society does not seek liberal and less repressive and more reformative and recitative mechanism. So, that people can be themselves self regulatory.

Leon Duguit (1859-1928):- The philosophy of Duguit is based upon radical philosophy. Nevertheless, Duguit also focuses on social solidarity concept. Duguit reject all traditional concepts of state, law and sovereignty. Traditionally sovereignty refers to single, indivisible, unchangeable and product of single creative act that are only being found in myth. Such sovereignty cannot be found in contemporary society because of the decentralization and provincial government system. He further says that, there is no difference between state and corporation. Even state is the association of people. Earlier, law is necessary to run state gradually, there will be administration relation in the form of chain and finally even law and state with be withering away. According to him, rule of law exist whenever the mass of individuals composes of group and admits that they will take reaction against the rule made by them that is rule of law concept. In his rule of law concept, there is no difference between social solidarity and rule of law. He completely rejects morality and natural right concept. According to him, people have no right; they only have duty to the maintaining social solidarity. He has sufficiently elaborated the social solidarity concept. The issue of social solidarity comes because the social, political, economical and technical or technological complexity. In this situation, people cannot fulfill their necessity and desire. As a result, they will go for social solidarity because of these reason, people are interdependent.

He is criticized for supporting Marxist philosophy and he is also blame that he has stopped natural law and metaphical concept from door allowed if from window.

Max Weber (1864-1920):- According to him, every knowledge of society reflects capitalistic rationality. People have positive thought that leads them towards success. He strongly opposes communist philosophy of Karl Marx. Max Weber says that the word is led with the liberal and open behavior of the people. In terms of law, he further says that it is not only the formal aspects but also the practical aspects. From the point of view of legal development, he has classified which are as follows:

I. Traditional society: - In traditional society, there was traditional concept of social situation. It is related to legitimate authority. To get the legitimacy of authority, it takes long period of time. When something is long habituated in society. It will be accepted and those people will govern the society.

II. Charismatic society: - When there will be changed in the traditional system, charismatic authority comes into existence. Charismatic authority refers to the person who have gift of grace. In fact, he is prophetic or heroic personality. Such person leads the society and established there notion and philosophy in the society.

III. Rational legal authority: - In this stage of society, rationality is used in each and every discipline of society is including the law. This period is the formation of law using rationality and wisdom of the people guide by the society. This stage is also appeared in the four forms which are as follows.

· Substantial irrational: - Substantial irrational concept is related to a hoc basis of legal application. There is no any rule, principle, institution to govern law.

· Formal irrational: - In formal irrational concept, ordeal system, ghost or other super natural power are being made. Because of the fair people revel their truth.

· Substantial rational: - Gradually, Substantial rational concept emerged. Rule guided by religious scripture, morality, ethics, principle are prevalent in this period.

· Formal rational: - Finally, same provision is converted to manmade law with formal procedure that is formal rational concept. It refers law and statute.

Legal development does not stop and further go ahead. Justice, corporative tendencies will emerge to limit the rightly the formal law. People develop their own rule understanding speedy decision making process. For example, alternative dispute resolution and commercial law. In contemporary time Anglo American formalistic tendencies of legal understanding have been rejected. It is also the result of capitalistic rationality or mind. Karl max has accepted

Karl Marx has accepted communism and rejected capitalism but Max Weber rejects communism and accepted capitalism. According to Max Weber, the world is created with capitalistic concept. But according to Karl Marx, the world is destroyed by capitalistic thought. Therefore, systematic difference can be found in there concept. Max Weber has further analyzed the law from the point of view of seamless web (broader less); it means legal concept can be acquired from any social issue. No rightly of formal law can be realized as society change, law will also be changed.

Ø Socialist School of Jurisprudence

The socialist school of jurisprudence also known as the Marxian school or the economic approach to jurisprudence relates to the communist ideology on what law is and how the courts run. Marx explains the evolution of society from the viewpoint of class struggle between the capitalists and workers. There is a considerable degree of friction between them. But it is not necessary that it has to culminate into violence. The world history is dotted with countless class struggles all of which have fuelled the development of law and society. The is the means of the exploitation is the key concept of socialist school. The central issue of socialist school based upon the philosophy of Karl Marx. Engles, Lenin, are the basic follower of socialist school. There are two streams in this school. One is classical Maxis and another is Neo-Marx. Classical Marx basically focused upon economic whereas Neo-Marxist has basically focused on ideological apparatus.

Basic tenets of Socialist School

· Law is essentially a form of politics. Laws and the state are closely associated.

· Law mirrors the prevailing economic relation between the state and its people.

· Law is always repressive and represents the state monopoly in the means of coercion.

· The contents and procedures of law unfailingly protect the interests of the ruling class which frames it.

· A distinction is drawn between ownership of the means of production and of the consumer items. The former is totally in the state domain and the latter is open to individual citizens.

· Legislation has to be strictly observed without exception.

· The educational function is a chief component of law.

Criticism

· Marxism conceives of law and the state as vehicles of exploitation and capitalistic oppression. Law was to wither away after the proletariats have assumed power, but that did not happen anywhere. This proves the fallacy of the school.

· Law always remains normative. The contents of law would change with time, place and thought, but the character will forever stay constant.

· One goal of Marxian justice was to eradicate the abuse of power, but that could not be achieved in decades of socialist rule in various countries.

· A centrally controlled economy as advocated by socialist jurisprudence would come with a humongous bureaucracy and endless red tape in the administration of law.

· The socialist law is now more of a forgotten concept with little chances of revival as the world at large has moved towards open society, competitive democracy and free trade.

Karl Marx (1818-1883): - The Karl Marx is the founder of philosophical concept of socialism and communism. He basically says that law is also the instrument of exploitation economically. Economic is the based whereas law, state and religion are supper structure. Karl Marx says that law is the important part in capitalism and gradually its role is developed in socialism and communism. His philosophy is also based upon Hegelian philosophy of dialectical materialism. Dialectical materialism related to thesis, anti-thesis and synthesis concept. Same concept is found Karl Marx and he says that Hegel has wrongly construed the meaning or he has upside down understanding same thing is recognized by Karl Marx. Karl Marx says that there are different historical situation of production mode which is traditional communal mode of production, salve mode of production, fudel mode of production, capitalistic mode of production, socialist mode of production and communism mode of production. There is excessive level of discrimination of capitalism that is not endurable to majority to proletarian (working class) people. Finally, they make to participate in revolution and over through capitalistic society. They tried to make rearrangement in society of socialist period. It is the situation of bridge between capitalism and communism. When socialism comes in one country and gradually and another country of world will be associated the there and finally communism will be established.

The main doctrine of Karl Marx is doctrine of the economic determination of law, doctrine of the class character of law, doctrine of the identity of the law and state and doctrine of withering away of the law and state. In communism, there will be no state and law because society works change command, there will be greatest level of equality. Karl Marx does not accept ant right and morality and says religion is the opium. Nevertheless, he has imagined supper equal society.

The philosophy of Karl Marx was applied in Russia. In 1917 to 1921 is formation period, 1921 to 1936 is new economic policies period. This new economic policy is also reflected in the five year plan of 1928 to 1932 and after 1936 to 1953 of socialism to communism period and after 1953 of construction on communism and it was finally fraction in 1989. Nevertheless, there is the application of communism in China, Vietnam, Cuba and North Korea etc.

However, Karl Renner has criticized of Karl Marx. His theory is based upon private institution and their social function. He greatly support law and state and says law and state will not withering away rather will be promoted. Neo-Marxist, Antonio Gramsci who was the leader of Italian communist party. He has propounded ideological hegemony theory. It means direct domination to other like Indian hegemony, American hegemony. This philosophy is propounded post-humously on the basis of prison note in 1971. Likewise, there is also the Frankfurt school concept which establishes in Germany in 1923 and transferred it into America with the emergence of Nazi in Germany. It conducts research on why the good philosophy of the world of Marxism is diminishing. This school has come into conclusion that it is because of the false ideology.

Ø Critical Legal Studies

A critical legal study (CLS) is a theory that challenges and overturns accepted norms and standards in legal theory and practice. Proponents of this theory believe that logic and structure attributed to the law grow out of the power relationships of the society. The law exists to support the interests of the party or class that forms it and is merely a collection of beliefs and prejudices that legitimize the injustices of society. The wealthy and the powerful use the law as an instrument for oppression in order to maintain their place in hierarchy. The basic idea of CLS is that the law is politics and it is not neutral or value free. Many in the CLS movement want to overturn the hierarchical structures of domination in the modern society and many of them have focused on the law as a tool in achieving this goal. CLS is also a membership organization that seeks to advance its own cause and that of its members.

CLS was officially started in 1977 at the conference at the University of Wisconsin-Madison, but its roots extend back to 1960 when many of its founding members participated in social activism surrounding the Civil Rights movement and the Vietnam War. Many CLS scholars entered law school in those years and began to apply the ideas, theories, and philosophies of post modernity to the study of law. They borrowed from such diverse fields as social theory, political philosophy, economics, and literary theory. Since then CLS has steadily grown in influence and permanently changed the landscape of legal theory. Although CLS has been largely a U.S. movement, it was influenced to a great extent by European philosophers, such as Karl Marx, Engels, Max Weber, Michel Foucault and Jacques Derrida. Like legal realism, CLS scholars, rebelled against accepted legal theories of the day and urged more attention to the social context of the law. CLS has borrowed heavily from Legal Realism, the school of legal thought that flourished in the 1920s and 1930s.

CLS includes several subgroups with fundamentally different views. For e.g. the feminist legal theory which examines the role of gender in the law, the critical race theory (CRT), which is concerned with the role of race in the law and postmodernism as a critique of the law influenced by developments in literary theory. And a subcategory that emphasizes political economy and the economic context of legal decisions and issues.

Ø Liberalism, Neo-liberalism and Post- liberalism

Liberalism is the concept of freedom. It has different meaning as per the various disciplines. For example, legal liberalism, economic liberalism, political liberalism, cultural liberalism, and social liberalism etc. Nevertheless, liberalism is the term of political and economic. Letter it has transfer into law. Philosophically all jurisprudential school and movement are related to liberalism. To give supper freedom, this liberalism is coined. Liberalism is a political philosophy or worldview founded on ideas of liberty and equality. Whereas classical liberalism emphasizes the role of liberty, social stresses the importance of equality. When we consider the philosophical foundation of the liberalism and human rights, the main stream of liberalism has its origin in democratic tradition of western European tradition which is itself the product of the Greek philosophy Roman law, and the Judea Christian tradition, the humanism, of reformation, age of reason, Magna Carta. The political association’s aim is to conserve the natural rights and inalienable rights of men- these are the right to life, liberty, security, and resistance to oppression. A political philosophy developed largely in the 18^th and 19^th centuries challenging the aristocratic and religious views of the state. Classical liberalism argues for freedom of individuals, religion, trade and economic and politics. For classical liberals, the ideal state protects civil liberties for example, property rights, voting rights, freedom of speech, freedom of religion, freedom of association and instead of interfering with the free market, simply provides all individuals with an equal opportunity to determine their own accumulations within that market.

Liberalism first became a distinct political movement during the Age of Enlightenment, when it became popular among philosophers and economists in the Western world. Liberalism rejected the prevailing social and political norms of hereditary privilege, state religion, absolute monarchy, and the Divine Right of Kings. The 17th-century philosopher John Locke is often credited with founding liberalism as a distinct philosophical tradition. Locke argued that each man has a natural right to life, liberty and property, while adding that governments must not violate these rights based on the social contract. Liberals opposed traditional conservatism and sought to replace absolutism in government with representative democracy and the rule of law.

Neo-liberalism: - Neo-liberalism concept is appeared after Second World War. It is the situation where the liberty concepts are being including constitution. As a result of reformation in constitution making. Establishment of GAAT, WTO, and UNO, regional and global inter governmental agencies new liberalism. Neo-liberalism is mere associated with business, economics and political purpose. Contemporary right based approach each related to Neo-liberalism

Neo-liberalism is a policy model of social studies and economics that transfers control of economic factors to the private sector from the public sector. It takes from the basic principles of neoclassical economics, suggesting that governments must limit subsidies, make reforms to tax law in order to expand the tax base, reduce deficit spending, limit protectionism, and open markets up to trade. It also seeks to abolish fixed exchange rates, back deregulation, permit private property, and privatize businesses run by the state. Liberalism, in economics, refers to a freeing of the economy by eliminating regulations and barriers that restrict what actors can do. Neoliberal policies aim for a laissez-faire approach to economic development.

Neo-liberalism has been used by various scholars, critics and analysts, mainly referring to an upspring of 19th century ideas connected to economic liberalism that began in the 1970s and 1980s. These ideals advocate for extensive economic liberalization and policies that extend the rights and abilities of the private sector over the public sector, specifically the shutting down of state and government power over the economy. Neo-liberalism supports fiscal austerity, deregulation, free trade, privatization and greatly reduced government spending.

Post- liberalism: - Post- liberalism is associated with post-modernism. It is the result of research and finding. Neo-liberalism is has given only the slogan whereas post-modernism tries to materialized it practically. Post- liberalism is the currently emerged historical formation that has both grown out of and broken with liberalism and neo-liberalism. Like its antecedents, Post- liberalism entails its own forms of truth, of subjectivity, and of power. In the terminology of Michel Foucault, it is governmentality, that is, a mode of government drawing on its own typical (post-) political rationality, practices, techniques and agents. We can also define post-liberalism more formally by its peculiar political or, rather, a-political rationality. Some of the symptom of post liberalism is appeared after 1990s as glimpse. However, its application is further oriented. Post-liberalism is related to future of law to more extend. Third gender issue euthanasia (mercy killing) and similar other radical issues are related to Post- liberalism concept. It is more fiction and more freedom- Post- liberalism that is sumibaba case, to change from male to female.

Ø Post-modernism

Post-modernism is a term that originated in art, literature, and architecture to designate reaction against modernism. Later post-modernism started influencing philosophy, social theory, history, politics and ethics. Post-modernism is largely a reaction to the assumed certainty of scientific, or objective, efforts to explain reality. In essence, it stems from a recognition that reality is not simply mirrored in human understanding of it, but rather, is constructed as the mind tries to understand its own particular and personal reality. For this reason, post-modernism is highly skeptical of explanations which claim to be valid for all groups, cultures, traditions, or races, and instead focuses on the relative truths of each person. In the post-modern understanding, interpretation is everything; reality only comes into being through our interpretations of what the world means to us individually. Post-modernism relies on concrete experience over abstract principles, knowing always that the outcome of one's own experience will necessarily be fallible and relative, rather than certain and universal.

Modernism has rejected all traditional concept and notion. In the name of modernism great level of inequality spread in society. As a reaction of it. Post-modernism has come into existence. No truth is always existing which is changing and ever changing is the key concept of post-modernism. It is equivalently used as a death of subject and death of author. It rejects all western meta-narrative concepts. A post-modernism thinker says that liberalism, capitalism and Marxism are meta-narrative. So, they are rejected. Post-modernism is the exhilaration of rapture. Post-modernism is the hedonistic, kaleidoscope and volatile concept. Feminist jurisprudence loiter is the first person who usage the term post-modernism. Michel Foucault, Jacques Derrida, R.M Unger, Santos are the major contributor of it. According to Michel Foucault, nothing is certain in post-modernism and we have to be doubtful or skeptical in every issue. Jacques Derrida says, law is related to language. Language is metaphor which is different meaning so there is no certainty in law. Deconstruction is necessary for existing ideology.

In post-modernism political system, radical democracy, radical pluralism, self organizing society and minimal state concept are being accepted. Political system of this concept is completely based upon the concept of freedom providing substantially and materially. There is no any controlling system rather participating system. Likewise, post-modernism constitution is also being guided by same concept. Decentralization is highly expected. State or government makes constitution not to control the people rather to facilate the people as a guideline. Local self organizing society makes own rule and rule their revolutionary self organizing society because local people know what things are necessitated for them.

Features /Characteristics of post-modernism

· Post-modernism emphasizes on plurality and localism.

· It is a very subjective and impermanent notion.

· It lays stress on self management.

· It seeks the destruction and reconstruction of legal system.

· Indeterminacy is at the heart of Post-modernism.

· All truth is limited, only approximate and constantly evolving.

· No theory can be ever proved true; we can only show that a theory is false.

· Metaphysics is empty of content.

· The only absolute truth is that there is no absolute truth.

· Absolute and certain truth that explains everything is impossible to find.

· No theory can ever explain all things consistently.

· Human reason is univocal and universal. Language represents reality.

· Law serves legitimate government through its institutional subordination of power to reason.

ØFeminist Jurisprudence

Feminism is the concept of gender equality, equity, dignity, and opportunity for women. Feminism is a wider concept that aims to change the political, social, religious, economic and cultural structures favor men and discount women. This includes seeking to establish equal opportunities for women in education and employment. The present day feminism is a struggle for the achievement of women’s equality, dignity and freedom of choice to control their lives and bodies within and outside the home. Feminism is a struggle concept a struggle for power to women. Feminists do not hate men but are against patriarchy, male domination and the maleness in men, which led men to treat women as their property. Feminists seek the removal of all forms of inequality, domination and oppression through the creation of a just, social and economic order in the home, nationally and internationally. If every child in family is encouraged to grow independently, there would be more talent and creativity in the family and in the nation. Further, if women become independent, men would have fewer economic responsibilities and pressures.

Feminist jurisprudential concept is appeared after 1980s as off shoot of CLS movement. However the term feminism along with human civilization. Feminist jurisprudence refers to legal movement in the favour of women. It is the result of voting right and academic participation of women in law. Feminist jurisprudence completely rejects all traditional jurisprudential school and CLS movement too. They say all these philosophy and movement are the result of male point of view. However, even in the philosophy of Aristotle, Rawls, Dworkin, Hobbs, Locke, J.S Mill, Bentham, Adam Smith, etc. there is the protection of women. J.S. Mill has written book subject of women. But feminist activist reject all these notion and philosophy.

Ann scales, Patricia clan, Robin west, Catharine Mackinnon, Cristina Littleton, Catharine Bar left etc. are the major contributor of feminist movement. When women have enrolled in university education. They came into know that there is no any course designed for women issue. Therefore, they have started to raise their voice in the favour of women issue in legal education. Gradually, they have launched interaction program and seminar that resulted feminist jurisprudence movement. There are four branches of feminist jurisprudence movement which are as follow:

1. Liberal Feminism: - This feminism is related to equality concept. According to them, man and women are equal so whatever right and power are assigned to male, same right and power are also entitle to women. It means no discrimination can be made between man and women in property right, voting right, political right and civil right etc. There is equal capacity of male and female. So, both have to be treated equally.

2. Cultural Feminism: - According to the Cultural feminist, both male and female have different biological capacity. The culture and society have found in the collaboration of male and female. Those capacities given to women cannot be found to male and those capacities of male cannot be found in female. It is applied specially in reproductive behavior. Thus, women have to promote those cultural systems and men have to support them without any discrimination. This concept is reconciliation concept.

3. Radical feminism: - Radical feminist believes that male and female are not equal biologically. So, respecting the biological feature, the treatment of women has to be ascertained. It means specially treatment for women necessary. They adversely criticized male for their decorum (manner), language, presentation, eye movement etc. These radical feminism activists are the successor of Marxist feminism.

4. Postmodern Feminism: - This feminist believes that no system is necessary to follow. Even women can do such work whatever and whichever gives them freedom, satisfaction and pleasure. Every woman can do whatever her mind says. For example, homo sexuality, gender transplantation.

On the basis of things mentioned above, the major feminist issues can be traced as:
I) Dominance, patriarchy and women’s sense of justice
ii) Social or Gender equality
iii) Definition and organization of sexuality from women’s perspective.
iv) Right of Entitlement and Reproduction
v) Humanistic society without bondage of marriage, family and gender.
The issues and core concerns of every feminist are same but the approaches are diverse.

ØConcept and kinds of Justice

Justice is an ultimate value of jurisprudence. Justice is one of the complex principles in jurisprudential studies. Concept of justice is liberty, equality, and freedom. Justice is an inherent and undeniable content for human rights and a matter of quest for a long history of human civilization Justice must be fair, reasonable. According to Madison “Justice is the end of government and civil society. It ever has been and ever will be pursued until it is attained or lost in the pursuit.” According to Cicero “Good faith is the foundation of Justice. The more law, the less justice. Justice shines by its own light”.

The term Justice is derived from the Latin word ‘Justus’ or ‘Justia’. These Latin terms can be equated with the term ‘Jus’ which has various meaning such as truth, morality, equality, rightness, fairness, impartially mercy, law etc. In the other word, the term Justice is derive from the word Jus. The meaning of Justice is related to law. So, Justice is the value and end of every legal procedure. It is the greatest level of the achievement of fairness, goodness, or stability. So, all the philosophical concept of jurisprudence is associated with Justice Concept. So, it is difficult to classify or conceptualizes Justice. All legal mechanism is only the means to attain Justice. Although positive school, Scandinavian philosophers, various movement from CLS to post modernism have rejected the Justice concept, there purpose of is Justice finally. Nevertheless, the Justice is the key concept of natural law school. So, this Justice concept has no single notion and no rigid classification.

According to legal philosophy, Justice Concepts are being classified as below:

· Distributive and corrective justice- Aristotle

· Harmony concept of justice- Plato

· Justice through social contract- Hobbes, Locke and Rousseau

· Individual liberty-Kant, Hegel

· Utilization theory of justice- Bentham, JS Mill and Ihering

· Common goods concept of justice- Finnish

· Social interest theory of justice-Ihering, Roscoe Pound

· Social solidarity concept of justice- Duguit, Durkheim

· Libertarian concept of justice- John Rawls

· Minimal state concept of justice – Nozick

· Emancipation concept of justice- Post modernist

· Besides that the above approaches- here we have gender justice, environmental justice, victim justice, political justice, animal justice, economic justice, natural justice etc.

Ø Aristotle’s Theory of Justice

Man is found always is search of justice. The idea of Aristotle (384-322 B.C) has been still considered as superior when compared to other people’s idea his pioneer analysis of justice still found serving. Aristotle said that the state at its best when not the people but the law governs. At least, his discussion provides a starting point. He distinguished between ‘distributive justice’ and ‘corrective justice’. To him, distributive justice is based on the principle that there has to be equal distribution among the equals. Distributive justice is exercised in the distribution of honour, wealth and other divisible assets of community, and these may be allotted among its member in equal or unequal shares. Equals must be treated equally and un-equals unequally. Justice in the distributive sense would aim at ‘proportion’ in contrast to the ‘disproportion’ which characterizes injustice.

Thus, the notion of distributive justice refers to the ownership of a share in social goods and facilities that is contingent to a person’s function in society. It necessarily employs geometric proportion in that, what each person receives from the society or state should be directly proportional to his/her merit. Hence, a good person should gain more than a bad person. For e.g. an excellent teacher should receive greater incentives than a dull or average teacher. If persons are equal, they must have equal shares. It they are unequal, they should have unequal shares. Any violation of this norm would trigger injustice.

Corrective justice stands in contrast to distributive justice, it is equilibrium. The judge will treat parties as equal, and seek to equalize the situation by imposing penalties which will take away any ill gotten gains and take into account the suffering caused by the offense. Aristotle notes that corrective justice may be administered in the situation as follows: voluntary transactions, such as selling, buying, lending with or without interest, pledging, depositing and letting on hire. These transactions are termed voluntary because the parties enter into them in their own free will without any undue influence or duress. On the other hand, involuntary transactions are mostly violent, coercive and include acts such as theft, adultery, murder, false witness, assault, robbery, maiming and the use of abusive language. The aim of government is according to Aristotle to fit the individual for the good life and to satisfy his social instincts. Thus, corrective justice represents remedial justice based on the decision of a competent authority.

Ø John Rawls’ Theory of Justice

John Rawls (1921-2002) is widely regarded as one of the most important political philosophers of the second half of the 20^th century. He was holder of the chair of philosophy at Harvard. He produced the works: “ A Theory of Justice 1972” and “ Political Liberalism 1993” John Rawls made the interesting modern attempt to defend principles of justice in his work: “ A Theory of Justice 1972” and reformulated work in “ Political Liberalism 1993”. He is primarily known for his theory of justice as fairness, which develops principles of justice to govern a modern social order. Rawls' theory provides a framework that explains the significance, in a society assumed to consist of free and equal persons, of political and personal liberties, of equal opportunity, and cooperative arrangements that benefit the more and the less advantaged members of society.

The justice concept of John Rawls is based upon the concept of Aristotle distributive and corrective justice with slide modification. However, there is fundamental different between them. Aristotle has only focused on distributive and corrective justice and has prioritized only it. However, John Rawls has more focused on liberty first then only distributive justice second. John Rawls further says that liberty is first for all the men kind without any discrimination then only distributive justice pattern will come. John Rawls doesn’t heisted to criticize utilitarian thought because utilitarian have accepted greatest level of inequality and social arrangement. As they have only focused on the maximization of social welfare with the application of greatest happiness of greatest number of people.

Likewise, utilitarian defend liberty and political rights, in a way that they have no objection to limit liberty of the people. But John Rawls completely opposes it. The main concept of justice of John Rawls is based upon public concept of justice. Justice is measure through rationality. First of all, people of the society can be assembling in place that refers to original position of the people. Original position is the hypothetical situation where all people gathered in a single place and there will be the situation of veil of ignorance. It means people know about social fact but they don’t know anything about their location, cast expectation, condition, necessity etc. They make wide discussion and finally they make of principle of justice. According to John Rawls, primary goods/primary subject of justice are the key concerned of them. Primary goods refers to right, liberty, opportunity, power, and self-respects. These primary goods are applicable for all and are being included in the justice principle. Base on the John Rawls the principle of justice are being summarized as below:

1) First Principles of Justice is maximization of liberty: - Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. Liberty includes liberty, a thought conscience equal participation in political decision making and rule of law to save guard people and self respect. This principle is also known as the equal maximum liberty principle. It means that there is some basic liberty that is freedom of speech and association, right to vote and stand for public office, freedom of the person and right to hold personal property, freedom from arbitrary arrest which every system must respect. These rights may not be sacrificed to increase the aggregate welfare level. These rights should be given to all citizens equally. Rawls first principle is more or less absolute and may not be violated, even for the sake of second principle.

2) Second Principles of Justice is fair equality of opportunity and equality for all:- Social and economic inequality are to be arranged so that they are both to greatest benefit of the least advantaged consistent with the just saving principle and attach to offices and position open to all on the basis of fair equality and opportunity. Fair equality and opportunity and the elimination of all inequality of opportunity based on birth or wealth. Fair equality and opportunity requires that citizens with the same talent and willingness to use them have the same educational and economic opportunity regardless of whether they born rich or poor. Equality for all both in the basic liberties of social life and also in distribution of all other of social goods, subject only to the exception that inequality may be permitted if they produce the greatest possible benefit for those least well of in a given scheme of inequality.

In his first priority rule, he says, liberty can be restricted only for liberty. According to his less extensive must strengthen as per total system of liberty shaved. And a less than equal liberty must be acceptable with those with lesser liberty.

In his second priority rule, he has highlighted on efficiency and welfare. He says that inequality of opportunity must enhance the opportunity of those with lesser opportunity and excessive rate of saving must be balanced to mitigate the burden bearing the hardship.

In this way John Rawls has given priority to liberty first that is equal to all the people of society and then only distributive justice can occur. Rawls is being criticized by Nozick, Dworkin, Hayek and other. Hayek says that the concept of Rawls justice is groundless that cannot be applied practically. There is the greatest rule of the state nevertheless.

After the huge criticism from legal export. Rawls has corrected his justice concept. In his political liberalism the law of people in 1993. Latter, he has concertized justice concept along with political liberalism, human right and other similar issues. He has formed his previous thought of justice reformation concept. In the process of the principle formulation. Rawls latter turned into parliamentary discussion system from his original position.

Ø Robert Nozick’s Theory of Justice

Robert Nozick contemporary American jurist was born in Brooklyn, New York in 1938, and he taught at Harvard University until his death in January 2002. He enunciated in “Anarchy, State and Utopia (1974)” principles which would emphasize individual rights within society. Robert Nozick’s “Anarchy, State and Utopia” is one of the most provocative essays in political philosophy which have appeared.

He has also criticized of John Rawls. Rawls on the ground that he has given unnecessary value to the distributive justice. Nozick says, individual liberty is necessary that cannot be found in Rawls philosophy.

Nozick has supported libertarian concept. According to Nozick, before the existence of state, there were property concepts. To protect the property, individual has made the state. So, every law and system is the result of entitlement. In his writing Anarchy, state and Utopia, Nazick has supported minimal state concept. Basically there are three state of property concept. Which is related to just acquisition of property, just transfer of property and rectification of any breach.

Just acquisition refers to the way of proper reception with valid ground whereas while transferring the property from one person to another even valid way has to be followed. If there is disagreement and unjust in the process of property acquisition and transfer there rectification has to be made that goes to state role. The minimal concept of Nozick is guided by the Herbert Spencer and John Lock. State shall not control the society rather facilited the people on their proprietary issue. The state has the duty to provide the security for property. Even, it is not necessary for day time rather it is necessary at night time as night watchman. Nozick ever rejects to impose levy (taxation).

Ø Ronald Dworkin’s Theory of Justice

Professor Ronald Dworkin’s (1931-2013) was an one of the greatest American contemporary political and legal philosophers , jurist and scholar of United States constitutional law- started developing his comprehensive liberal theory of a central position of the concept of equality firstly in a field of philosophy of law then followed liberal political theory of justice/political morality, and finally he attempted to clarify philosophical foundations of this theory of political morality.

He rejects not only the natural law school, but also analytical school. In fact, Dworkin is also the positivist in nature. Even, he does not heisted to criticize pragmatic concept. The true of law from the point of view of formal approach is almost rejected because either it cannot be worked properly or not. According to him, rule cannot be given justice by policy and principle give justice. Policy is political agenda and principle is the best applicable answer. So, principle is superior standard which gives justice to the people and it is based on right answer thesis. According to him, right is trump. Even state can’t go against it. There are abstract and concrete rights. For example, freedom of speech and expression is abstract right and right publish article by parliamentarian is concrete right. In the point of view of judicial decision and common law. The one right answer thesis is applicable for this purpose integrity of approach has to apply. There can be similarity of decision based on practices made in decision making process. So, find out the right answer thesis is the key goal and task of judges. In the relationship of statue and hard case. Judges are not entitle discretionary power rather they have to use widely accepted principle. Even in the same case, there is different principle. Among different principle, one is based principle that is right answer thesis. Only Hercules (hard work) judges can find it. Dworkin gives an example, a statute provides that is shall be an offense for vehicles to enter a public park. Somebody who runs through the park clearly commits no offense. A person who drives a car through the park clearly does commit an offense. But what about a person who goes through the park on a skateboard? These have wheels. So is an offense committed or it is not? This is a judge decided that a skateboard constitutes a vehicle for the purpose of the statute, he would be creating a new law for the future that it is an offense to use a skateboard in the park. Dworkin terms this view that adjudication works strong positivism or conventionalism.

Dworkin further says that democracy is necessary and judges are protector of the right. Equal concern and respect principle should use. Even, minority has equal right. Dworkin rejects natural law based morality concept but accept community morality. Some time community morality right of the people, principle equal respect and concern are being applicable in the Dworkin justice concept. Dworkin also rejects utilitarianism concept and Rawls theory of justice concept.

Ø Justice, Equality and Rule of Law

Justice, equality and rule of law all are interrelated concept. All jurisprudence, its philosophy and movement are either related to justice, equality and rule of law. Although, from historical school to post modernism have rejected formal approach of rule of law, that is also for justice. Even the rule based concept of analytical school is also for justice. The distributive and corrective justice of Aristotle is made for equality and rule of law. Rawls says that liberty is equally applicable for all. Distributive justice has to be maintaining with positive discrimination. That is also brought for equality and rule of law. Minimal state concept of Nozick and property rights are also associated with equality and according to him, same thing has to be covered in rule of law. The concept of Diecy’s rule of law, like no arbitrariness and retrospective, equality before law or government under law and protection of right through common law are also associated with equality and justice concept. Inner morality of fuller, rule of law. Concept of Joseph Raz of rule of law, division of labour of Plato, self organizing society of post modernism are also associated with justice, equality and rule of law concept.

The Greek philosopher, Plato, believed that law should provide inner harmony and justice in the State and that law and justice could be used as moral educators. Access to justice and the rule of law are interrelated concepts. Rule of law is the tool that we use to facilitate our endeavor to achieve justice. In the last few decades, the rule of law, which connotes equal treatment, equal legal protection and accessible justice for every citizen, has become an integral element of good governance in every democratic State. The establishment of a society based on the rule of law demands development of a set of strategies or ideas for realization of related ideologies and strategies. According to the International bar Association Council, 2009:-“Rule of law is the foundation of a civilized society. It established a transparent process equal and accessible to all. It ensures adherence to principles that both liberate and protect.”

Following seven indivisible features for testing rule of law: 1. Law must be prospective, open and clear, 2. Lawmaking should be guided by an open, stable and clear process, 3. Laws should be relatively stable, 4. Independence of judiciary should not be compromised,5. Courts should have the power of review, 6. Courts should be easily accessible to the public, and 7. Crime prevention should not be allowed as a shield to subvert rule of law. In essence, the notion of rule of law rests on the following three foundations: Principle of supremacy of law, principle of individual liberty, and principle of due process.

ØTheory of Social Engineering and Balancing of Interests

Man is a social animal and needs a society for his leaving, working and enjoying life. A group of individual forms a society. Society has become an essential condition for human life to develop his or her personality. The relation between the individual, society and the State have been changing and various theories regarding them have been propounded from time to time. In the beginning, society was governed by customs which had only social sanction. Then came the supremacy of the priests. After that, the secular state emerged and dominated all the institutions. As a reaction, the importance of individual was asserted by thinkers and philosophers. There were revolutions and political changes. The necessity of balancing the welfare of the society and individual was realized.

Therefore society and human life always go together. Every human being has also born with some desires and expectations which are inherent in nature. From childhood to till old age, every human being expects that his or her desire is to be fulfilled for which their arise conflict of desires or claims which comes under the term “interest”. It is impossible to fulfill all the desires of a human being. So to fulfill the desires of maximum human being for the welfare of society the concept of Social Engineering was emerged and which was coined by Roscoe Pound. Social engineering is based on the theory that laws are created to shape the society and regulate the people’s behavior. It is an attempt to control the human conduct through the help of Law.

According to American jurist, Dean of Harvard Law school Roscoe Pound (1870-1964):- “Law is social engineering which means a balance between the competing interests in society”, in which applied science are used for resolving individual and social problems.

Pound compared the task of the lawyer to the engineers. He stated that the aim of social engineering is to build a structure of society as possible which requires the fulfillment or satisfaction of maximum wants with minimum usage of resources. It involves the balancing of competing interests. He called this theory as the theory of “Social Engineering.” Here Pound has used two words i.e. “Social” which means group of individual forming a society. The second word is “Engineering” which means applied science carried out by engineers to produce finished products, based on continuous experimentation and experience to get the finished product by means of an instrument or device. Balancing of social and individual interests is sought for realizing an approximate equilibrium. Ihering refers balancing of interest to as realized partnership of individual and society.

Roscoe Pound’s view regarding primary function of law is that the greatest number of interests with the least possible sacrifice of other interests. According to him taxonomy or classifications of interests are Individual interests, Public interests and Social interests.

1) Individual Interest– Individual interests, according to Pound are claims, or demands or desires from the point of the individual.

2) Public Interest– Public interests according to him are the claims or demands or desires looked at from the stand point life in politically organized society.

3) Social Interest: Social interests are the claim or demands or desires thought of in terms of social life and generalized as claims of social groups.

It is concluded that law plays an important role in adjusting conflict of interests. Both the social interest and individual interest co-exist. Both of them have equal priority. Roscoe Pound has given the idea of Social Engineering for the American Society but this concept is followed universally for dispute resolution. Nepal also followed the same concept in establishing a societal welfare. Both Judiciary and Legislators play an important role in enacting the statutes which fulfill the various desires of human being. In this techsavvy society desires of human being grows and to fulfill their desires new policies, strategy has been developed.

ØLaw as an Instrument of social change and control

Law has a tremendous potential for initiating positive social change. Legal reforms have changed the face of many societies all over the world. Problems such as low literacy levels and gender injustices have been eliminated in many developed nations because of legal mechanisms to address the problem. Law has the ability to mould social change. It is designed to bring about a social order where individual rights are protected. Law is the perfect tool for maintaining justice and ensuring that lawlessness does not continue to prevail within society. When legal judgments aim at reforming the system, a wave of positive social change is initiated. The landmark Supreme Court India judgment preventing criminals from contesting elections is just one example of laws that can spur social change.

The law and the society are interrelated. Social change means a meaningful change brought about in one society. It also includes the changes brought about in various organizations, social institutes, social rituals, social ideologies and perceptions etc and the changes in the human interactions with them. Law is the guideline between the right and wrong in the society. Law in Nepal is constructed keeping in mind different social ideologies, process, etc. The law revolves around the social institutions, socio-economic networks, and social processes. Along with this Law also plays an important part in changing the social rituals. For example the prohibitions of social rituals such as female infanticide, child marriage, sati etc in Nepal are an attempt by the law to bring about a change in the social norm of Nepal. The Nepal society and culture are still traditional. The contemporary world is fast changing. Nepal is adapting to the world of modernization while trying to keeps its cultural values in place. The law helps to maintain are cultural values by regulating the social norms, interests and interactions.

It is well known fact that corruption is a major menace in Nepal. The corruption of law would weaken social order and lay it in ruins. The objective of law is to protect the citizens of the country, ensure the rights of the people, punishing the guilty. Sometimes the law makers tend to divert from this objective. For law to be an instrument of social change it has focus on its objective. In today’s time the rate of crime is very high, crime has a direct impact on the society for example crimes which relate to women, children, robbery kidnapping etc have a great impact on the social peace and stability in these if the guilty are not found and punished the people and society lose their faith in law. Law can be an instrument of social change only when it completely follows the directives of the constitution of Nepal. Constitution of Nepal is made for the common people. Therefore the laws constructed should also be for the benefit of the common people. These days the law is often used to manipulate the people as many people are not aware of it. The constitution has made ample provisions for the betterment of its people.

Thus the essence of social change lies in the effective application of law. The laws constructed should be practiced properly by common people as well as the authorities. Only then can it bring about a social change.

Ø Participatory law making process

Universal Declaration of Human Rights provides “Every one has the right to take part in the government of his country, directly or through freely elective representatives”. The will of the people shall be the basis of the authority of government, this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent fresh voting procedures. All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, cultural, development. Every one shall have the right to hold opinion without interference.

In constructing a just and equitable society, which offered all people opportunities for a satisfying and creative life, law had an important role, laws which had hitherto worked to the distant advantage of the rich and powerful. The poor people were in an unfavourable position with regard to access to legal services and justice. They were at a disadvantage at the level of legislation as well as at the level of legal process and the administration of justice. Legislation and administrative regulations tended to favour the upper strata of society. Often they seemed to give more weight to the convenience of bureaucrats than to the rights of the poor. Little attention was paid to the effects upon the poor of legislation and regulations. In-effective legal enforcement and administration was common and that added to the handicap of the poor. In reforming law, the key role would be played by the masses. People’s participation was absolutely indispensable, for without it law would merely continue to reflect the interests of the powerful groups which had played major part in formulating it. People’s participation, however, was not easy to develop. For it to grow access to law and legal resources must be improved, the roles of intermediary groups and organizations, either in administering or implementing the law, must be changed from the existing narrow focus on business, individual or state interests, to a broader one serving the collective interests of groups. The legal system must be given a broader mandate. Many third world countries including Nepal, had reached a crisis. More and more poor now saw through merely rhetorical. Hunger and impoverishment were at new and dangerous levels. Law should work to enhance the capacity of people to organize themselves in order to participate effectively in every process, including law making process.

Reasons of Participation in the law making process are

Need of people can be identified, Easy implementation of law, People feel that they have been consulted and they feel that they have made their rules for themselves, Problems can be identified , Principle of minimal state, Evolution of private law, Alternative dispute resolution, Government is not to rule but to facilitate, It creates an opportunity to analyze pros and cons before the law is formalized, It is the right of any beneficiary to know the rules they are going to be governed by in near future.

Participants in law making process

Pressure group, Political institutions including parliament, Several beneficiary groups, Government institutions, Research institutions, Educational institutions.

Method of law making process

Covers both the formal and informal process, Raising voice, Seminar, Exploration through research, Demanding for public opinion, sharing experiences, Court structure.

Time of law making process

Law making process is a continuing process, never ending process. Participatory right comprises both reactive and pro-active forms. In the reactive form, participation consists of collective articulation of the responses to development policies. In the pro-active form participation involves the responsibility of the people in the initiation of the articulation of development policies. In the first form government proposes and citizens respond and in the second form, citizens propose and the government responds.

In the context of Nepal, Janga Bahadur Rana has included participate in Muluki Ain making process. Referendum of 2037 upper house and lower house concept of the constitution of kingdom of Nepal 2047, constituent assembly under the interim constitution of Nepal 2063 all are participatory approach. In participatory law making process, substantial participation is expected.

ØPublic Interest Litigation (PIL):- “Public Interest Litigation” means legal action initiated in a court of law for the enforcement of public interest of general interest in which the public or a class of community have pecuniary interest or some interest by which their legal rights or liabilities are affected. Public Interest Litigation is the name that has recently been given to efforts to provide legal representation to preciously unrepresented groups and interests. Such efforts have been taken in the recognition that the ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups or interests include the poor, environmentalists, consumers, racial, ethnic, minorities and others.

Law does not operate in vacuum, it is intended to have social and economic mission. Public interest litigation ordains the state to do certain specific things or to abstain from doing certain things for the deprived and weaker sections of the society. This aspect of activist approach on the part of the judges demands from judiciary a high degree of independence and fearlessness vis-à-vis the other branches of state particularly against the bureaucracy. PIL opens a vista of hope for the ailing humanity to get succor from the travails of legal system. PIL which is the strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is dispute between the litigating parties, one making claim or seeking relief against the other and the other opposing such claim or resisting such relief. PIL is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed. PIL is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of society and to assure them social and economic justice which is the signature tune of the constitution. Thus the concept of PIL which has been and is being fostered by judicial activism has become an increasingly important one setting up valuable and respectable records, especially in the area of constitutional and legal treatment for the ‘unrepresented and underrepresented’.

Some of the cases where the supreme court of Nepal has legitimized people’s efforts to achieve their legitimate rights: Bal Krishna Neupane vs. the Prime Minister G.P. koirala, popularly known as Tanakpur case, Prasant Maharjan vs. the Election Commission, Man Bahadur Biswakarma vs. HMG, Radheshyam Adhikari vs. HMG, Sapana Malla Pardhan vs. HMG, Keshavnanda Bharati vs. State of Kerala (1973) case puts limit on the parliament not to change the basic features of constitutions of India, Annapurna Rana’s case, Godavari Marble case etc. are the landmark cases in the field of PIL. Chief justice Hari Pradhan in 1951-1956 dared to deliver judgments without caring the threat of the commissions, home ministers, magistrates etc declaring the laws, orders void which were against the personal liberty and freedom of individuals.

The following characteristics of PIL are notable:

· Petitions in PIL are filed on behalf of a group or class of persons.

· Petitions are on behalf of such group or class of persons, who on account of their social, economic or other constraints cannot approach the court for any legal remedy.

· Action is initiated in PIL against irresponsible, illegal acts of government.

· It is new concept of Jurisprudence, which is developing its own mechanisms for justice.

· It is a law proposed and propounded by Judges.

· It gives rise to such causes of action where legal damage has been caused to the public at large or a section of it.

· Any public spirited person or member of an organization, who initiates public interest litigation, must have bona fide interest in social welfare, his intentions must be free from malice and he should not start the action under the influence of extraneous considerations.

ØAlternative Dispute Resolution (ADR):- Alternative Dispute Resolution is the collective name of all the dispute settling methods outside and inside the courts. Prof. Frank E.A Sander, “ADR is multi-door dispute resolution programme”. Alternative Dispute Resolution is search for quicker, more effective and participatory dispute resolution procedure. Negotiation, conciliation, mediation, arbitration and litigation all have common object that is dispute resolution. ADR helps to achieve mutually acceptable and cost-effective outcomes and to accomplish business efficiently, economically, and productively. ADR is usually less formal, less expensive, and less time-consuming than a trial. ADR can also give people more opportunity to determine when and how their dispute will be resolved.

Mediation
In mediation, an impartial person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties. Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner. Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.

Arbitration
In arbitration, a neutral person called an "arbitrator" hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. Arbitration may be either "binding" or "nonbinding." Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator's decision as final. Generally, there is no right to appeal an arbitrator's decision. Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator's decision. Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute. If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator's award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favorable result at trial than in arbitration, there may be penalties

Negotiation

Negotiation is a method by which people settle differences. It is a process by which compromise or agreement is reached while avoiding argument and dispute. In any disagreement, individuals understandably aim to achieve the best possible outcome for their position (or perhaps an organization they represent). However, the principles of fairness, seeking mutual benefit and maintaining a relationship are the keys to a successful outcome. Specific forms of negotiation are used in many situations: international affairs, the legal system, government, industrial disputes or domestic relationships as examples. However, general negotiation skills can be learned and applied in a wide range of activities. Negotiation skills can be of great benefit in resolving any differences that arise between you and others.

Ø Concept of legal rights and duties

The word right is derived from Latin word ‘Jus’ which means either justice or privilege. Right cannot be existed along; it must be supported by duty. So, the relationship between rights and duties is the jurisprudential concept. All the jurisprudential thoughts have defined rights and duties. Rights is defined based upon to philosophical theory which are will theory and interest theory. Will theory of rights is based upon the philosophy of Austin, Holland, Vinogradoff; they believe that right is decided by the will of sovereign. So, right is defined as will in this theory. Likewise, in the interest based theory, rights are legally protected interest which is being conceptualized by Ihering and Roscoe Pound. In contemporary society all the issues of right are being guaranteed by law.

Ihering: - A right is a legally protected interest. One can be said to have a right only when there exists some advantage for one, which is protected by the state.

Gray: - A right is not the interest of itself. It is the means by which the enjoyment of interest is secured.

Holland: - A legal right refers to the capacity residing in a man of controlling the action of others, with the assent and assistance of the State.

Duties refer to obligation in the favor of rights holder. So, duties is opposite from of wrong. It is synonymously used with no wrong. So, duties refer to act or not act with the provision of existing law while accomplishing some work. Stoic philosopher, Leon Duguit has widely focused duties based approach. Scandinavian realists have both rejected rights and duties. Natural law includes then rights and recent movement have focused on more rights than duties. Broadly speaking, a duty is an act which one ought to do out of moral or legal grounds. However, under legal duties, duties prescribed by law only are studied. A person is said to have a duty towards any matter when he/she is under a legal compulsion to do or to refrain from doing something. For e.g. a debtor is under a duty to pay back the creditor in time. A watchman is under a duty to not sleep while he is guarding an office or home.

Salmond: - A duty is an act which one ought to do, an act opposite of which would be wrong.

Finally, we can say all the jurisprudential thoughts are based upon rights and duties.

ØRelationship between rights and duties

Rights and duties are two phases of the same thing. Rights are considered to be essential for the expansion of human personality. They offer to the individual a sufficient scope for free action and thus prepare ground for self-development. Although rights arc of great significance in a democratic stale yet they become meaningless in the absence of duties. Rights involve obligations as well. An individual has rights so that he may make his contribution to the social good. One has no right to act unsocially, man's rights imply his claims on society and duties indicate the claim of society on the individual. This means that an individual owes to the society certain duties as he obtains rights. As there is a close relationship between the body and soul, so there is a relationship between the rights and duties.

Professor Laski finds the following points of relationship between the rights and duties:

(1) The right of one is related to the duty of the other:- If one has the right, the other has the duty related to that right. If one enjoys the right, it becomes the duty of the other not to prove an obstacle in the enjoyment of his right. For example, if I enjoy the right to life it is the duty of others not to cause any harm to my life.

(2) The duty of the one is the right of the other and vice versa: - If I possess rights, I owe duties also. As we treat others so others will treat us. If the other has the right to life and security, it is our duty that I should not cause any harm to his life and security. To give proper respect and regard to the rights of others is our duty.

(3) The state guarantees the enjoyment of certain rights to every individual: - But at the same time, it becomes the duty of the individual that he should make the use of those rights for promoting the common welfare. For example, if I have the right to vote, it becomes my duty that I should cast my vote in favour of a deserving candidate. While casting my vote, I should not allow my prejudice to work. I should not be influenced by the distinction of caste and creed, rich and poor, black and white, etc.

(4) If the state protects me in the enjoyment of my rights: - It becomes my cardinal duty to serve the state in full spirit. If rights spring to us from the becomes our duty to perform certain duties towards the state. If the state protects us, it becomes our cardinal duty that we should pay taxes regularly and s remains faithful and loyal to the state. Treachery is a crime.

Thus, it is quite clear that rights and duties are so closely related to each other, that they cannot be separated from each other. If every individual pays ‘attention only to his rights and does not perform his duties to others, rights o individual will cease to exist. There is a close relationship between the rights and duties. They are the same conditions viewed from different angles. They are the two sides of the same coin. If we have the right to speech, writing, wandering, running institutions and any religion we like, it is our duty, at the same time that we should not spread evils in society by our writing work or by our lectures. If we have the right to vote, we should make the proper use of this right and cast our vote in favour of the honest and deserving candidate. If we have the right to make the use of roads for our vehicles, it becomes, at the same time, our duty that we should keep to the left so as to avoid accidents.

Ø Types of legal rights

1. Primary and Secondary Rights ( Principle and Sanctioning Rights)

A primary right refers to a right vested in a person through a law or contract or any other legal mode. A secondary right arises out of the principle right. In this sense, a person’s right to reputation, safety, liberty, enjoyment of goods, to a debt or lease, etc. falls under the primary or principal right.

Conversely, a secondary right arises when a person’s primary right is lost or threatened. It is also called the sanctioning right because it is a mode of legal enforcement for recouping the loss of primary right. Contrary to primary rights which can exist independently, secondary rights come into the scene only when primary rights of an individual are breached. Thus, a secondary right originates from some wrong whereas a primary right emanates from something other than wrongs.

2. Perfect and Imperfect Rights

A perfect right is one which corresponds to a perfect duty and a perfect duty is one which is not only recognized by the law but also enforced by it. So a perfect right is one which is not only recognized by the courts but which is also enforced by the state. Enforceability is the rule or to sat the test of a perfect tight. Thus, a right not only recognized but also enforced by the state is a perfect right.

On the other hand, there are many such rights which are recognized by the law but are not enforced. These rights are known as imperfect rights e.g. a time barred debt or the Directive Principles of state policy under the Indian constitution. There can be many other rights which cannot be enforced due to some technical difficulties like the absence of some proof or e.g. a sale-deed of immovable property which is not registered. On the expiry of the period of limitation the law does not destroy the right but refuses to help in its enforcement. The right remains valid but is incapable of being enforced. These imperfect rights are in fact exceptions to the maxim ‘ubi jus ibi remedium’ i.e., where there is a right, there is a remedy. The law recognizes these imperfect rights because,

a) It may be a good ground of defense thought not a ground of action e.g. ‘A’ cannot sue on an informal contract but if money is paid or property delivered to ‘A’ in pursuance of it, ‘A’ can successfully defend any claim for its recovery;

b) An imperfect right is sufficient to support any security that has been given for it. A mortgage or pledge remains perfectly valid, although the debt secured by it has ceased to be recoverable by action;

c) An imperfect right can become perfect e.g. an informal verbal contract may become enforceable by action, by reason of the fact that written evidence of it has since come into existence.

3. Positive and Negative Rights

This division is based on the nature of or content of rights. A positive right is which enables its holder to compel another person on whom the duty was cast to abide by the terms which he has agreed to abide i.e. to compel him to do a certain thing. For example, the right of a creditor to receive money from his debtor is a positive right. A negative right corresponds to a negative duty. The person against whom it is available has to forbear from doing some act, which act, if done, would prejudice the person in whom the right resides. It means compelling a person not to do a certain thing, for my right to reputation; other’s duty is not to defame me. “The former is a right’ says Salmond ‘to be positively benefited, the latter is merely a right not to be harmed. The former is a right to receive something more than one already has, such as my right to the money in pocket of my debtor. The latter is a right to retain what one already had, such as my right to the money in my pocket.”

4. Rights in Rem and Rights in Personam

This classification of right is English law is derived from the Roman legal system. Under Roman law there was a clear distinction between dominium, title that availed against the world and obligation, which binds only the parties to the agreement. The same idea is lying in this division of right i.e. Rights in rem and rights in personam. A right in rem is a right which is available against the entire world, for example a right to a land or a house is a right in rem. Right is rem is in fact, a right against or in respect of a thing, namely, to recover possession of the thing. It includes the right to personal safety and freedom, right to possession and ownership. Thus, a man who receives any injury or damage from any dangerous substance or animal kept by another can sue the other for the same as it comes under the right to personal safety. Similarly, abduction of a child or wife from the custody of her parents or husband is a violation of right in rem.

Whereas a right against a definite or a specified person is a right in personam-as for example a debt is a right in personam. It can be availed of only against the debtor. Again a servant’s right of wages is a right in personam, as it is available only against the master whom he has served. Thus, a right against definite individual is a right in personam and a right against an indefinite number is a right in rem. That is to say, in other words, that a right in rem is available against all persons indefinitely, whereas a right in personam is available against a definite person or persons.

This division of rights in rem and rights in personam closely corresponds to negative and positive rights. A right in rem is almost always negative because it is a right to be left alone- it is a right that people should not interfere with ownership e.g. the whole world cannot be expected to do something for me. However, there is an exception to the rule i.e. in the case of ‘State’. Salmond has also stated this exception. A state may have a right that is both positive and in rem, as for instance, a right that all persons should pay taxes or send in census returns. On the other hand, rights in personam are usually positive. They are acquired because the subject stands is some special relationship towards another person as in the case of a contract. In some exceptional cases, however, a right in personam may be negative for example in the case of a sale of goodwill when the seller undertakes not to set up a rival business within the prescribed area and period of time. The purchaser acquires against the seller of goodwill a right of exception from compensation which is both in personam and negative.

5. Rights in re-propria and Rights in re-aliena

The rights over one’s own property are called rights in re-propria and rights over the property of another is called rights in re-aliena, for example A’s right about his land are in re-propria but A’s rights of way over his adjoining land –owner’s property is a right re-aliena. Jus in re-aliena is also termed as encumbrances. Salmond defines a jus in re-aliena or encumbrance as one “which limits or derogates from some more general right belonging to some other persons in respect of the same subject-matter”, e.g. right of way. Austin confines right in re-propria to ownership and describe a right in re-aliena as a fraction or particle of ownership which is held by another than the owner of the res concerned. Mainly, there are four classes of rights in re-aliena- Lease, Servitudes, Securities and Trust.

Lease: - A lease refers to the right to possession and use of land that vest in a person other than its owner. Lease is done of lands and buildings, especially for commercial purpose, for a particular period of time, and against a certain consideration.

Servitude: - A servitude is a right to the limited use of a piece of land unaccompanied either by ownership or by possession thereof. It may be positive such as a right of way over the neighbour’s field or negative like prohibiting his neighbour from building is such a manner as to obstruct light and air to his house. The servitudes are of two kinds: (1) A private servitude is that in which the right to use vests in a determinate individual or individuals. For example, a right of way vested in the owner of land is a private servitude. (2) A public servitude is that in which the right is vested in the public at large or in some class of indeterminate individuals. For example, where the public has a right of highway over one’s private land it is a public servitude.

Securities: - A security is an encumbrance vested in a creditor over the property of his debtor, for the purpose of securing the recovery of a debt. Securities may be further sub-divided into: Mortgage: Mortgage is a transfer of an interest in a specific immovable property as security for the repayment of a debt. But such interest itself is immovable property. Lien: A lien refers to a right which entitles the holder of security to retain possession of an asset or thing until the obligation is discharged. For e.g. a right to continue possession of goods sold until the price is fully paid constitutes a lien. Trust: Trust as an obligation annexed to the ownership of property, and arising out of a confidence respond in and accepted by the owner or declared and accepted by him, for the benefit of another.

6. Vested and Contingent Rights

A vested right is a right in respect of which all events essential to vest the right in the owner have happened. This right is not dependent on the fulfillment of any certain condition, the occurrence of a specific incident; and it creates an immediate proprietary right, even though its enjoyment may be postponed. A vested right is not defeated by the death of transferee before he/she obtains possession. It is inheritable, transferable and in itself is complete, unconditional right.

On the other hand, a contingent right is one in respect of which only some of the essential facts necessary to vest the right have happened and the vesting may become complete only on the happening or non-happening of certain special facts. A contingent right is thus a conditional right. It is an incomplete right whereas a vested right is a complete right. A contingent right is defeated by the death of transferee if the condition is not yet met. It is neither inheritable not transferrable.

7. Legal and Equitable Rights

The distinction of rights is found in England where exists two parallel legal systems namely, common law and equity. The conflict of jurisdiction between the two types of courts let to two classes of rights distinguishable as legal and equitable. ‘Legal rights are those which are recognized by the courts of common law’ whereas ‘equitable rights are those which are recognized solely in the court of Chancery’. Even after the judicature Act of 1873 which led to the amalgamation and fusion of the law and equity the distinction between legal and equitable rights still persist.

8. Proprietary and personal Rights

Proprietary rights are rights in relation to one’s own property, which consists of things, assets and belongings in possession or ownership of a person. They are mostly transferrable in nature. Contrarily, personal rights are associated with one’s person or body that affects his/her status, liberty, character and reputation in society. They cannot be transferred. All transferrable rights are proprietary, but no all proprietary rights are transferrable. For e.g. the right to pension cannot be transferred to others. Proprietary rights are inheritable and can outlast their owners. A personal right is uninhabitable and it dies with its owner. Proprietary rights have an economic significance whereas personal rights have an emotional and social component.

Paton holds that personal rights can be defined only as the residuary rights which remain after the proprietary rights have been subtracted. Holland maintains that proprietary rights are an extension of the power of a person over the physical world, i.e. land, houses, securities while a personal right relates to the position of an individual as a citizen, a husband or as a father, and help to make his status.

ØPerson

The word person is derived from the Latin word persona which meant a mask worn by actors playing various roles in a drama. In general parlance, by person we simply mean a human being. However, in law, the term person gives a far wider connotation. Law treats not only human beings but also associations and corporations as person. A person is considered a subject matter of rights and duties. If an entity is capable to enjoy rights and discharge duties, as prescribed by law, then it is treated as a person in the legal sense.

Gray: - A person is an entity to which rights and duties may be attributed.

Salmond: -A person is any being whom the law regards as capable of rights and duties.

Austin: - A person is a human being invested with certain condition or status.

Natural Person: - A natural person is a living human being who possesses both rights and duties. Three conditions are necessary for human beings to qualify as persons in legal diction. Firstly, he/she should be alive. In other words, he/she should be born alive and must not have ceased to live. Secondly, he/she should own human characteristics, i.e. he/she should not be a monster. Thirdly, such a human being should be accorded a legal status that is he/she must be capable of performing rights and duties.

Legal Person: - A legal, juristic or artificial person is not a creation of nature but of law. It is a being, whether real or imaginary, in whom the law vests rights and also imposes duties. A juristic or legal person is one to whom law attributes legal personality. Normally legal personality is granted by law to all human beings. Legal personality, being an artificial creation of the law, may be conferred on entities other than individual human beings. The law, in creating legal person, always does so by personifying some real thing. Thought it is not necessary for law to personify, since the law might if it so pleased, attribute the quality of personality to a purely imaginary being but personification, in fact, conduces so greatly to simplicity of thought and speech, that its aid is invariably accepted. Corporations are undoubtedly legal person. There are two kinds of legal person: A corporation sole refers to an incorporated series of successive persons. It has only one member at a time. A popular example of the corporation sole is the Crown (Kind or Queen) of England. Today, there are many corporate soles in all of the countries, such as a bishop, a public trustee, the head of a religious shrine, etc. In Nepal, offices of attorney general, chief justice, speaker, prime minister, president, etc. may be regarded as instances of corporation sole.

A Corporation aggregate is an incorporated group of coexisting persons. It may have several members at a time who are united together to further their common interests. That interest could be commercial, social, economic, political, educational, cultural, religious, professional or a combination of any of them. Corporate aggregates have to be registered with the competent authority as per their governing laws. For e.g. in Nepal, companies are registered in the office of company registrar as per the Companies Act, 2006.

Natural Person	Legal person
1. It is created by nature.	It is created by custom or law.
2. A natural person is a real or living person.	A legal person is a lifeless being, whether real or imaginary.
3. Human rights are granted only to natural persons.	Only statutory rights are afforded to legal persons.
4. The lifespan of a natural person is limited.	The lifespan of a legal person is unlimited.
5. Natural persons may be divided into the categories of men, women and third gender people.	Legal persons may be classified into corporation sole and corporation aggregate.

Corporation Aggregate	Corporation Sole
1. It is an incorporated group of coexisting persons.	It is an incorporation series of successive persons.
2. It has numerous members at a time.	It has only a single member at a time.
3. Corporations aggregate are far more in number and are more important.	Corporations sole are far less in number and are less important.
4. The incorporated group is recognized as a person by legal fiction.	The legal fiction is that the living and incumbent official is an agent through whom the mythical legal person delivers its duties.
5. It is created by law.	It is created by both law and custom.
6. Example: registered companies, trade unions, funds, trusts, associations, NGOs, INGOs, etc.	Example: the queen of England, the prime Minister of Nepal, Attorney general of India, etc.

ØSanctity of person

Sanctity means purity, holiness, respect, dignity including inalienability. So, sanctity of person only refers to natural person. Sanctity of person beings from birth and ends in death. So, sanctity of person is related to right to life and respect. Though lunatic, imprison people are not full person, they have also sanctity of person. Defamation issue of life time is also associated with sanctity of person. Death penalty, suicide, imprisonment, abortion are also against sanctity of person but it is justified on the basis of the protection of sanctity person as a whole. Although, the character of the personality ends with the death of person, even it is protected off against defamation. We cannot defame or curse dead body without any ground. Defamation can be file against that violator on behalf of the relative of dead body. Freedom of speech and expression, rights to life, right to privacy all are associated with sanctity of person.

Philosophically, sanctity of person is related to natural law school. Even Plato’s division of labour, reason of Aristotle, eternal law of Cicero, St. Thomas Aquinas, preservation of rights to life of Hobbes, right to life and liberty concept of Locke, participation of each and every body in general will theory of Rousseau, personal freedom concept Kant, principle of respect concept of Stammler, life as a common goods concept of Finnis, morality concept of Fuller, all are also related to sanctity of person. H.L.A Hart’s minimum content of natural law is also associated with sanctity of person. In the context of Nepal, privacy case of Sapana Pradhan Malla, virginity test of Anna Purna Rana case, discrimination case of Man Bahadur Bishwkarma, marital rape case of Mira Dhungana all the various cases are the issue of sanctity of person and third gender issue of Sunil Babu Panta, name of the mother to get citizenship case of Sabina Qamai are also associated with sanctity of person.

Ø Concept of Possession: Human life and human society as we know them would be impossible without the use and consumption of material things. We need food to eat, clothes to wear and tools to use in order to win a living from our environment. To eat food first we must get hold of it, to wear clothes we must have them and to use tools we must possess them. Possession of material things then is essential to life; it is the most basic relationship between men and things.

Possession means that fact under which one can exercise his power over corporal things at this pleasure to the exclusion of all others. It is a prima facie evidence of ownership. Several important legal consequence flows from the acquisition or loss of possession. It is also one of the principle modes of transferring ownership. Possession denotes physical control of a thing by a person- external to and independent of law.

Generally there are three preconditions to possession. First, labour is the source of possession. It establishes a physical relation or demonstrates a material control over the object. The second condition is about the right of possessor to exclude all other in the use and enjoyment of such object so as to validate his/her custody. The third condition relates to the legal relationship between ownership, title and possession. Possession is thus one of the vague terms of jurisprudence and shifts its meaning as per the subject matter, as it is introduced in civil or criminal proceedings.

According to Salmond: The possession of a material thing is the continuing exercise of a claim to the exclusive use of it. It is continuing de facto relation between a person and a thing which is known as possession.

According to Bentham: Possession refers to the image of the mind to control something.

Black Law Dictionary: Possession is having control over a thing with an intend to have and to exercise such control.

ØPossessory remedies

The legal remedies provided for the protection of possession even against ownership are called possessorium or possessory remedies. A wrongful possessor, who is deprived of his possession even by the owner otherwise than in due process of law, can recover it from him, simply on the ground of his possession. Even the true owner, who retakes possession, must first restore possession to the wrongdoer and then proceed to ensure possession on the ground of his ownership in due course of law.
There are many grounds why possessory remedies are recognized.

2. Possession often amounts to evidence of ownership. A finder of goods becomes the owner against the whole world excluding the true owner. This is on the ground that he/she is in possession of it. If a person in adverse possession of a property for 12 or more years, he/she becomes the legal owner of the property and the right of the original owner extinguished.

3. The iniquities of violent self help are very serious and in all civilized countries, those are forbidden. Experience shows that there can be better conditions in society if the role of force is avoided by the real owners. Lawful methods are always to be favored and no one should take them into his own hands.

4. Another reason of possessory remedies is to be available in the serious imperfection of early proprietary remedies. Those were cumbersome, dilatory and inefficient. Every claimant had to undergo many hardships. The attitude of the plaintiff was a very difficult one and no person to be allowed to occupy the advantages position of the defendant. It was under these circumstances that it provided that the original state of affairs must be restored first. Possession must be given to him who had it first and then it alone the claims of the various persons could be settled. Under the old legal systems, it was extremely hard to prove one’s ownership and regain the property on the ground of title. Very often, small technicalities led to the defeat of one’s title to property.

5. Another reason for possessory remedies is that it is always more hard to establish ownership than to prove possession. Hence it is not just that a person who has taken possession of property by means of violent activities should not be allowed to transfer the big burden of proof from his own shoulders to that of his opponent. He who takes a thing by force must restore it and he is free to prove that he is the owner.

ØConcept of ownership: Ownership is the supreme concept of rights among ever existed rights. It is absolute kind of the right nobody can violate it. Ownership basically refers to absolute rights property or object. The normal case of ownership can be expected to exhibit the incidents as follows; Firstly, the owner will have a right to possess the thing which he owns.

Secondly, the owner normally has the right to use and enjoy the thing owned; the right to manage it that is the right to decide how it shall be used, and the right to income from it. Whereas the right to posses is a right in the strict sense, these rights are in fact liberties; the owner has liberty to use the thing.

Thirdly, the owner has the right to consume, destroy or alienate the thing. The right to alienate, that is the right to transfer his rights over the object to another, involves the existence of a power.

Fourthly, ownership has the characteristics of being indeterminate in duration.

Fifthly, ownership has a residuary character. If, for example a landowner gives a lease of his property to A, an easement to B and some other right such as profit to C, his ownership now consists of the residual rights, that is the rights remaining when all these lesser rights have been away. The rights of the owner then can be contrasted with the lesser rights of the possessor and of the encumbrance.

According to Holland, Ownership is a plenary control over an object.

According to Salmond, Ownership denotes the relation between a person and an object forming the subject matter of his ownership.

According to Duguit, Ownership is a relation between a person and a thing. On account of this relation the person has the power of disposal, use and enjoyment of the thing.

Most jurists agree that ownership includes in itself the following 7 rights as to a thing owned: Right to possess, right to use, right to manage, right to income, right to capital, right to security and right to destroy.

ØSanctity of property

Sanctity of property refers to piousness, purity, holiness and respect. There are two kind of property which is tangible and intangible. Tangible property refers to physical property whereas intangible property refers to intellectual property. Both are necessary to run human life. Right to property is associated with right to life. Therefore, sanctity of property is also associated with sanctity a person. It is believed that when God has given birth to human life then God has given property as gift to them to survive. So, proprietary concept is also holy concept.

Philosophically, Thomas Habbes says that people have the right to industries to lead commodious life without harming the peaceful and orderly society. Aristotle and John Rawls, distributive justice is also the issue of property. Locke says that property is inalienable right of people. Rousseau says that proprietary right is decided by general will of people. Finnis has correlative seven common goods with property. Kant says that property is the means of individual freedom. Fuller says that proprietary right is also related to morality. Therefore, the concept sanctity of property is associated with natural law school.

The philosophy of Adam smith, Malthus, Justice Holms, Roscoe pound’s individual interest, social development interest is also associated with property rights. Karl Marx says that reject the capitalistic concept of property. He supported communal concept of property. A feminist activist has also supported women proprietary right because they believed that tradition philosophy did not allow them. Minimal state concept and distribution of post modernism goods of path are also associated with proprietary issue. Eminent domain, police, power, taxation, fine and penalty, acquisition of property by state for public benefit are also associated with property that does not give absolute concept of property right. It is believed all the property belongs so state. So, state can acquire it at any time with due compensation. In the supreme court of Nepal has played significant role to protect of property rights and sanctified it.

· Basanta Bahadur Shrestha vs. HMG: - In this case the court stated that without proper reason private school property cannot be given to public school.

· Sita Bista Chhetri vs. HMG: - In this case, Supreme Court said that according to constitution, state can acquire personal property for the public interest by awarding compensation.

· Mithlesh Kumar Singh vs. HMG: - In this case Supreme Court said that right to property provided of the constitution as a fundamental right is not absolute. Restriction may be made upon acquisition, enjoyment and dispose of property. Principle of eminent domain is incorporated in property right of constitution which provide except the public purpose the state shall not acquire of obtain individual property or create any right over such property by any way. And court said that state can acquire land for public purpose under the land acquisition Act 2034.

· Meera Dhungana vs. HMG: Issue of parental property.

All the above mentioned cases same notion have been supported sanctity of property.

ØConcept of Liability

Liability means and implies responsibility for an act or omission. It is exposedness to the sanctions of law. It results in cases in which a person must do or suffer for having committed a violation of his duty. Liability stems from a violation of duty or rule which may be in the form of an act or omission. Thus, liability indicates the consequences of a wrongful act or a breach of duty that has to be borne by the wrongdoer. It is the ultimatum of law and has its source in the supreme will of state.

Salmond: - Liability is the bond of necessity that exists between the wrong-doer and the remedy of the wrong.

Markby: - Liability is the condition of a person who has a duty to perform whether that duty is a primary, secondary or a sanctioning one.

Austin: - Liability consists of those things which a wrongdoer must do or suffer.

The concept of liability is rooted in some core principles such as:

· Nobody has the right to hurt another.

· Everybody is accountable to his/her deeds.

· Where there is a right, there is a remedy.

· An act is not a crime until done with a guilty mind, and

· Who has done the wrong; he/she has to make it right.

Ø Civil and Criminal Liability

Civil liability refers to the exposedness to successful civil proceedings whereas criminal liability marks the exposedness to successful criminal proceedings. Under civil liability, the party wronged has a right to demand redress allowed by the law and the wrongdoer has the corresponding responsibility to fulfill that demand. In case of criminal liability, the wrongdoer is under obligation to pay such penalty as the law through the agency of court prescribes. Austin approaches civil and criminal liability in the following manner: An offence pursued at the discretion of injured party or its representative is civil injury. An offence pursued by the sovereign or its subordinates is a crime. All absolute obligations are enforced criminally. Thus, civil injury attracts civil liability whereas a crime or offence invokes criminal liability. According to Salmond, the distinction between civil and criminal wrong is based not on any difference in the nature of right infringed, but on a difference in the nature of remedy applied.

Civil and Criminal liabilities have been typically distinguished on the basis of following 4 grounds:

· Crime is a wrong against the society at large but a civil wrong is misconduct against a private individual or a group of individuals.

· The remedy against a crime is punishment is the form of imprisonment and /or fines but the remedy against a civil wrong lies in damages and restitution.

· Crimes gives rise to criminal proceedings whereas civil injuries spur civil proceedings which take place in two different court settings and under separate procedures, and

· The liability in a crime is measured by the intension of wrongdoer whereas in civil wrong, the liability is measured in terms of the impact of that wrongful impact and not upon the intension.

Thus, civil liability reflects in the enforcement of an impaired right of the plaintiff against the defendant while in criminal liability, the purpose of justice system is to punish the wrongdoer in terms commensurate to the gravity of crime. To sum up, all criminal liability is penal and civil liability is sometimes penal and mostly remedial.

Others Importance

ØFunction of ownership: ownership as a dynamic legal concept serves the following seven fold functions;

1. Ownership refers to the right of a person in an object itself.

2. The concept of ownership has always been useful for identifying certain groups of interests and for distinguishing one from the other.

3. It is helpful to differentiate group interests from individual interests.

4. It is an instrument of judicial policy.

5. It can discharge numerous social and legal obligations.

6. Gain and loss of ownership gives rise to several legal implications.

7. In recent times, the extent and worth of private ownership determines a person’s social standing.

Ø The subject matter of ownership: The prime subject matter of ownership consists of material objects such as land and chattels. But ownership is by no means limited to things of this category; a human being’s wealth may consist of such things as interests in the land of other, debts due to him, and shares in companies, patents, designs, trademarks, copyrights and so on. Salmond indeed took the view that the true subject matter of ownership was in all the cases a right.

Ø Elements of possession:

1. Corpus Possession: By corpus is meant an effective physical control over an object. Thus, corpus possession refers to the relationship of the possessor to the thing possessed. Possession is a denial to any interference from others in the peaceful enjoyment and control of the object possessed. It indicates the power to appropriate and to use things exclusively by the possessor and a reasonable expectation that the possessor’s use of such stuff shall not be disturbed by others. For example, delivery of a hotel key to the guest, a parked vehicle, a booked ticket in a movie theatre, etc.

Thus, the objective or physical element of possession refers to the corpus and comprises of an exclusive physical control over the thing. This corpus is a prerequisite for possession to commence. The notion of corpus possession can be discussed in the light of (I) relation of the possessor to other persons and (II) relation of the possessor to the thing possessed.

Corpus possession is reflected in the following characteristic: Power to use and to hold a thing, Continuous control over a thing, Extent of power wielded used in the control of a thing, and Power of excluding others.

2. Animus possidendi: Animus indicates the intention retain possession against the whole world except the true owner. Animus is also a conscious intention of an individual to exclude all others from the control and enjoyment of an object possessed. Animus possidendi thus refers to the subjective or mental element of possession which is manifested in a possessor’s intention to appropriate the thing to one and enjoyment of the thing held. By animus possidendi, the holder displays an express desire to exclude all others except him/her to the exclusive use of the possessed matter. He /she thus preclude the whole world, except him/her as regards the right to possession and enjoyment.

Ø Possession in Fact:

· It is Actual. It is related to fact.

· Possessions in fact need not to be one which is to be recognized by law.

· X stole my scooter. The scooter is in possession of X. it is a fact. The possession of X is a possession in fact. But it is not recognized by law.

· It is only de facto.

· It may be representative possession. Concurrent possession, derivative possession etc.

· The servant has possessed bicycle of the master. It is possession in fact.

· Possession in fact has possessory remedies.

· The finder if the gold ring is in possession in fact. He is not recognized as poser in law.

Ø Possession in Law:

· It is related to law.

· Possession in law means the possession is recognized by law.

· I have purchased a scooter. I possessed it. My possession of the scooter is recognized by law. I purchased a house, and got registered in my name. I am the lawful owner. My possession over that house is possession in law.

· It is de jure recognition.

· Sometimes, the property is not in the possession of the owner. Still it is recognized by law. Example: building owner and tenant.

· The master sends his servant on a work by giving his cycle. The master is the possessor in eye of law even though he is not in the possession of bicycle. He is the owner of the cycle. It is recognized by law.

· Possession in law has proprietary remedies.

· I lost my gold ring on road. Even though, I lost of possession of it, I am the owner of it in the eye of the law.

Ø Relation & differences between Possession and ownership

Generally speaking, both ownership and possession have the same subject matter, whatever may be owned may be possessed, and whatever may be possessed may be owned. These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and it’s de jure owner, between the man who actually has it and the man who ought to have it.

1. Possession is basically a matter of fact whereas ownership consists of certain legal right.

2. Possession shows a real situation while ownership shows a legal situation.

3. Possession is the de-facto exercise of claim whereas ownership is the de-jure recognition of one.

4. Transfer of possession does not require such formalities while transfer of ownership requires formalities prerequisites of registration

5. Possession requires physical control over the thing held while physical control is optional in the case of ownership.

6. Possession denotes the relation between the possessor and owner whereas ownership relation of an owner will be with a state.

7. Possession may exist independently of law while ownership always exists within the purview of law. In other words, ownership is strictly a legal concept whereas possession may be both legal and non-legal notion.

8. Dispute in possession leads to possessory remedies whereas dispute in ownership invokes proprietary remedies.

9. Ownership is more permanent than possession unless possession is accompanied by ownership.

10. Possession may be unlawful or wrongful also. But ownership always has to be lawful and valid; otherwise it cannot earn legal recognition and protection.

11. The concept of possession originated with the evolution of mankind. However, the concept of ownership developed much later when people moved from nomadic life to agricultural life.

ØFact skepticism v Rule skepticism

Those who declare allegiance to the banner of legal realism might just as easily be called skeptics, and they sometimes are, or even cynics. Legal realists attack what they claim to be only too prevalent in traditional legal science, the conception of law as a ‘brooding omnipresence in the sky’. In order to discuss the strengths and weaknesses of fact skepticism it's important that we briefly reflect the idea of rule skepticism as well. Rule skeptics, include those like Llewellyn, concentrate on the notion that rules do not necessarily, automatically lead to a particular conclusion or judgment so they argue that judges do not reach their decisions in a formalist way by applying rules, principles and concepts to the facts.

Oliver Wendell Holmes, whose concept shows shades of legal positivism, famously quoted that “General propositions do not decide concrete cases”. Realists however, argue that the legal process is really a rationalization of a result; judges decide on the results usually by reference to politics and then retrospectively rationalize it, so that it seems as legally right and inevitable. However, some of the later legal realists like Jerome Frank took a more radical position. He criticized authors like Llewellyn for what he called their “upper courtitis”.They were merely ‘rule skeptics’ whereas he, Frank, was a ‘fact-skeptic ‘, who were concerned to ‘uncover the unconscious forces that affect the discovery and interpretation of the facts of the case.

For Frank, most realists missed the important aspect of unpredictability in the judicial process: the elusiveness of facts. Thus the various prejudices of judges and jurors often crucially affect the outcome of the case. The main thrust of Frank's attack was directed against the idea that certainty could be achieved through legal rules. This, in his view was absurd. Thus 'fact skepticism', typified by the works of Frank, ‘essentially claimed that the facts of cases were ‘illusive' and therefore one could never produce any theory which systematically mapped the facts of cases to the decisions of the court ‘One commentator has gone so far as to describe the assertion, “in deciding cases judges respond primarily to the stimulus of the facts of the case”, as the “core claim” of American legal realism.

Ø Distinction between Legal and Fundamental rights

The distinction between legal and fundamental rights can be observed in the following 3 points:

· A legal right is an offshoot of the ordinary law framed by parliament whereas a fundamental right is continuous in existence and is of transcendental nature.

· A statutory right may be withdrawn by the state whereas a fundamental right is placed beyond the reach of state except as provided in the constitution.

· Legal rights are found in Acts and regulations whereas fundamental rights are guaranteed in the constitution itself under a separate chapter.

Ø Nozick’s minimal state Theory

The main purpose of Anarchy, State, and Utopia is to show that the minimal state, and only the minimal state, is morally justified. By a minimal state Nozick means a state that functions essentially as a “night watchman,” with powers limited to those necessary to protect citizens against violence, theft, and fraud. By arguing that the minimal state is justified, Nozick seeks to refute anarchism, which opposes any state whatsoever; by arguing that no more than the minimal state is justified, Nozick seeks to refute modern forms of liberalism, as well as socialism and other leftist ideologies, which contend that, in addition to its powers as a night watchman, the state should have the powers to regulate the economic activities of citizens, to redistribute wealth in the direction of greater equality, and to provide social services such as education and health care.

Against anarchism, Nozick claims that a minimal state is justified because it (or something very much like it) would arise spontaneously among people living in a hypothetical “state of nature” through transactions that would not involve the violation of anyone’s natural rights. Following the 17th-century English philosopher John Locke, Nozick assumes that everyone possesses the natural rights to life, liberty, and property, including the right to claim as property the fruits or products of one’s labour and the right to dispose of one’s property as one sees fit (provided that in doing so one does not violate the rights of anyone else). Everyone also has the natural right to punish those who violate or attempt to violate one’s own natural rights. Because defending one’s natural rights in a state of nature would be difficult for anyone to do on his own, individuals would band together to form “protection associations,” in which members would work together to defend each other’s rights and to punish rights violators. Eventually, some of these associations would develop into private businesses offering protection and punishment services for a fee. The great importance that individuals would attach to such services would give the largest protection firms a natural competitive advantage, and eventually only one firm, or a confederation of firms, would control all the protection and punishment business in the community. Because this firm (or confederation of firms) would have a monopoly of force in the territory of the community and because it would protect the rights of everyone living there, it would constitute a minimal state in the libertarian sense. And because the minimal state would come about without violating anyone’s natural rights, a state with at least its powers is justified.

Against liberalism and ideologies farther left, Nozick claims that no more than the minimal state is justified, because any state with more extensive powers would violate the natural rights of its citizens. Thus the state should not have the power to control prices or to set a minimum wage, because doing so would violate the natural right of citizens to dispose of their property, including their labour, as they see fit. For similar reasons, the state should not have the power to establish public education or health care through taxes imposed on citizens who may wish to spend their money on private services instead. Indeed, according to Nozick, any mandatory taxation used to fund services or benefits other than those constitutive of the minimal state is unjust, because such taxation amounts to a kind of “forced labour” for the state by those who must pay the tax.

Ø Kelsen’s (1881-1973) Pure theory of law: - kelsen’s theory of law which is known as the pure theory of law implies that law must remain free from social science like psychology, sociology or social history etc. kelsen’s aim is to establish a science of law which will be pure in the sense that it will strictly eschew all metaphysical, ethical, moral, psychological and sociological elements. His aim goes beyond establishing an autonomous legal science on positivistic empirical foundations, as he constantly criticized the ideas of justice and the principles of natural law. He altogether excludes all such factors from the study of law. Kelsen defines law as an order of human behavior. The specific nature of this order consists (i) in its being coercive and (ii) in the fact that this coercive power is derived solely from the sanctions attached to the law itself. His sole object was to determine what can be theoretically known about law of any kind at any time under any conditions. The essential foundations of Kelsen’s system may be summarized as under:

· The aim of a theory of law, as of any science, is to reduce chaos and multiplicity and to bring unity.

· Legal theory is science, not volition. It is knowledge of what the law is, not of what the law ought to be.

· Law is a normative and not a natural science.

· Legal theory is a theory of norms. It is not concerned with the effectiveness of legal order.

· A theory of law is formal, of the way of ordering changing contents in a specific way.

· The relations of legal theory to a particular system of positive law are that of possible to actual law.

The most distinguishing features of Kelsen’s theory is the idea of norms. To Kelsen jurisprudence is knowledge of a hierarchy of norms. A norm is simply a proposition in hypothetical form; if X happens the Y should happen. Jurisprudence consists of the examination of the nature and organization of such normative propositions. It includes all norms created in the process of applying some general norm to a specific action. According to Kelsen a dynamic system is one in which fresh norms are constantly being created on the authority of an original or basic norm while a static system is one which is at rest in that the basic norm determines the content of those derived from it in addition to imparting validity to them. According to Kelsen, legal norms cannot be derived from conflicting authorities. A judgment, for example, derives its authority from an order in council, the constitution and so on. Between these sources of legal authority, there is a relation of subordination. Ultimately every legal norm in a given legal order deduces its validity from a basic norm that is “Grundnorm”. This fundamental norm itself is not capable of deduction; it must be assumed as an initial hypothesis.

Criticism of Kelsen pure theory of law

· He rejects all other discipline in law in the form of pure theory of law that is impossible.

· Even the syntax of pure theory of law is grammatically incorrect.

· He has frequently used the term of ought which confusing with morality.

· He has rejected justice philosophy, all concepts that will be inapplicable for society.

· His grundnorm is highly abstract and cannot be identifying it source.

· His philosophy is only technical in nature and law cannot work in vacuum.

· He has rejected metaphysical concept but even his grundnorm is seem supper metaphysical.

· He has hesitated to distinguish person as natural person and legal person both cannot be same.

· He has highlighted unnecessary coercion. Coercion only does not work to establish peace and order in society.

Ø The Hart–Fuller debate

The debate between Hart and Fuller arise after the discloser of wife informer case. In the wife informer case, a soldier tells negative aspect of Hitler with his wife. It is not acceptable to his wife. So, she complain it against her husband with authority complaining against Hitler and his authority was taken as crime with the amendment of criminal procedure code in 1933. He was prosecuted and finally declared death penalty. He was not hanged rather he was sent into avert grade army. So, he could die in the cross battle. Finally, he was able to escape and Hitler regime was collapsed. During post war period, it was challenged whether the judge or this wife are guilty or not. Judge was not taken as guilty rather this women was declared as guilty for her personal malice.

Regarding this case, Fuller says that in the Hitler laws there is no morality. So, Hitler law is not law. In the responses of it. Hart says that no morality is criterion validity of law. Law is law. Even the Germany or Nazi government issued criminal procedure code. In accordance with it cases is filed so it law. Both have stated to write an article in Harvard law review. It is inclusive debate. Fuller says that without inner morality no law will be law but Hart says that it is not necessary, law is law. It is declared by authority. Morality is not standard to justify law.

Ø Difference between sociology of law and sociological jurisprudence

	sociology of law	sociological jurisprudence
1.	Ehrlich, Durkheim, Duguit, Max Webber, Selznik are the propound of sociology of law.	Ihring, Pound are the propound of sociological jurisprudence.
2.	Sociology of law is philosophical aspect.	Sociological jurisprudence is pragmatic aspect.
3.	Sociology of law, it is theoretical an issue.	Sociological jurisprudence is practical issue.
4.	Sociology of law is descriptive concept.	Sociological jurisprudence is functional perspective.
5.	Its seeks supremacy of society then after law.	Sociological jurisprudence seeks supremacy of law and its effect in the society.
6.	Society change faster than law.	Social control system by law.
7.	Max Webber is the elaborator of sociology of law.	Ihring is the father of Sociological jurisprudence and Pound is elaborator of Sociological jurisprudence

Ø Major Dimension of Liberalism

S. No.	Dimension	Prerequisites
1.	Political Liberalism	The state should be confined to the minimal necessary for the existence of an orderly society; sanctity of person should be unpaid.
2.	Economic Liberalism	Sanctity of private property, free market economy, minimal state intervention, allowing individuals to pursue their own interests.
3.	Constitutional Liberalism	Limitation of state power, civil and political liberties, economic, social and cultural rights, separation of powers, checks and balances, equality and equity, secularism, competent and fearless judiciary.
4.	Market Liberalism	Promotions of entrepreneurship, market as an agent of social change market as an engine of economic growth, demand and supply equilibrium.

Ø Difference between substantive law and procedural law

Substantive Law	Basis of Difference	Procedural Law
1. Doctrinal part if law that acts at policy level.	Type	Pragmatic part of law that operates at the practical level.
2. Purpose or objective oriented.	Nature	Process or formality oriented.
3. Lays down rights, duties, and liabilities of individuals as well as their safe-guards.	Function	Sets forth the necessary procedures for ensuring the smooth enjoyment of rights and remedies conferred by substantive law.
4. Concerns with the relationship between parties to a case.	Concern	Concerns with the relationship between parties to a case as well as their joint relation with the courts.
5. Defines the acts or omissions that make up a crime.	Perception to crime	Defines how to prove or disprove a charge, the elemental factors of crime.
6. Provides for sanction breach of law in the of imprisonment, reprimand, etc.	Sanction	Provides for the imposition of punishment and how to serve it.
7. In the event of its conflict with procedural law, substantive law prevails and stands valid.	Sustainability	In the event of its conflict with substantive law, procedural law becomes invalid.
8. Has only prospective effect and not retrospective one.	Effect	May have retrospective effect also, as far as procedures are concerned.
9. Deals with theories and norms.	Dealing	Deals with proof and formalities.
10. Applied more outside the courts.	Application	Applied more inside the courts.

ØPreventing legal aid to the poor

Legal aid is a tool for accessing justice for those who cannot afford legal service on their own. The Nepalese judicial system has agreed the notion of providing legal aid to poor, marginalized and deprived people since 1970’s. Nepal where about one third of the total populations live below the poverty line, the role and importance of legal aid is extremely noticeable.

Free legal aid undoubtedly is beneficial to poor people and has been instituted with the noble purpose. The assumption of our legal system is that all citizens have equal access to means of legal redress. Access to inexpensive and expeditious justice is a basic human right. But, in practice, legal services of all kinds have gone to the highest bidders. Wealthy persons and large corporations receive the highest quality advice. There should be a system of administration of justice of which the poorest are able to take advantage. Equal access to the law for the rich and the poor alike is essential for the maintenance of the rule of law. It is, therefore, essential to provide adequate legal advice and representation to all those, threatened as to their life, liberty, property or reputation, who are not able to pay for it.
Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in Courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available.

Institutionalization of legal aid service came across with Nepal Bar Association’s initiation in 1980s and is continued through administration under the Supreme Court by appointing a Member of the Bar as a stipendiary advocate in most courts. Legal Aid Act was promulgated in 1997. Legal Aid Rules, 1998 had been promulgated to regulate the procedures in providing legal aid. Currently legal aid is covered in all 75 districts since 2009.

On the other hand, many of the non-governmental organizations working in the area of justice as well as rights of the prisoners are providing services to the deprived groups of the prisoners and other in need of legal services. Still many accused persons are denied of access to defense and a fair trial and they are unaware of legal aid provided by Court, Nepal Bar Association (NBA), Central and District Legal Aid Committees, Civil societies, NGO and INGO’s. They are not informed about their rights and legal remedies. As a result they face long imprisonment, heavy fine, depression and lack of self-confidence. There is need of an overall assessment of the legal aid schemes and the framework that is undertaking the operations and envisioning more effective system that serves broader interests of the deprived communities who are considered to be the recipients of the service.

PPR Nepal is providing legal aid to different types of victims. They may be the victims of torture or victims of human trafficking or vulnerable people or victims of witch allegation.

ØDiscuss the nature and extent of the problem of trafficking of young women in Nepal? What legal remedies are when the victims are lured to cross the national border and then forced to engage in prostitution in a foreign land?

Human trafficking in Nepal is a growing criminal industry affecting multiple other countries beyond Nepal, primarily across Asia and the Middle East. Nepal is mainly a source country for men, women and children subjected to forced labor and sex trafficking. The Trafficking in Persons Report (TIP) compiled by the US State Department rates Nepal as Tier 2, the explanation of which is “the government does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so.”

In any given year, many thousands of young women and girls around the world are lured, abducted or sold into forced prostitution and involuntary marriage. They are bartered at prices that vary depending on their age, beauty and virginity, and exploited under conditions that amount to a modern form of slavery. Women and girls who have been trafficked can rarely escape or negotiate the conditions of their employment or marriage. In countries where Human Rights Watch has investigated the problem of trafficking, we have found that many police officers and other local government officials facilitate and profit from the trade in women and girls: for a price, they ignore abuses that occur in their jurisdictions; protect the traffickers, brothel owners, pimps, clients and buyers from arrest; and serve as enforcers, drivers and recruiters. If a woman is taken across national borders, immigration officials frequently aid and abet her passage.

The burgeoning trade in women and girls is linked fundamentally to women's unequal status. On the supply side, adverse socioeconomic conditions in many regions increase the likelihood that women and girls will be lured into forced prostitution or involuntary marriage. In most parts of the world, most notably in rural areas, women and girls have fewer educational and economic opportunities than males. The attraction of a big city, better-paying jobs, and a better life cause women and girls who have few options at home to accept alleged job or marriage offers far away. Moreover, even if the woman or girl herself is not tempted, the preference for sons in many societies (both to carry on the family name and as social insurance in old age) and the promise of immediate payments often lead families to sell their daughters.

1. Because many agents are local people familiar with local conditions, they strategically recruit in the lean period before harvests or target families with financial difficulties. The recruiters' timing, coupled with the traditional responsibility of women to care for their families, make offers of employment or marriage difficult to resist.

On the demand side, the growth of sex tourism has in some cases accelerated the forced trafficking in women and girls. Our research found, however, that local demand for prostitutes or wives is at least as important as tourism, if not more so. Additionally, in countries such as Thailand and India, which have a high prevalence rate of the human immunodeficiency virus (HIV), the clients' fear of infection has led traffickers to recruit younger women and girls, sometimes as young as ten, from remote areas perceived to be unaffected by the acquired immunodeficiency syndrome (AIDS) pandemic, in order to ensure their "purity" or virginity.

2. Although the traffic in women and girls possesses distinct characteristics in each country or region where it occurs, certain patterns have emerged that cut across geographical boundaries. In a typical situation, a woman or girl is first recruited by an agent with promises of a good job in another country or province. For instance, Bangladeshi and Nepali women and girls are promised the opportunity to escape poverty at home to the relative prosperity of Pakistan and India, respectively. Women and girls have also been abducted outright, as some testimonies from southern Thailand indicate. Yet another mode of recruitment is through false marriage offers, with the "bride" later sold off to a brothel. If the women are taken across national borders, immigration officials frequently abet their illegal passage.

Once recruited or abducted, virtually all women and girls trafficked into forced prostitution are controlled through debt bondage. The initial debt is usually a payment to the woman's family at the time of recruitment, which she must repay, with interest, by working in a brothel. This "debt" mounts as the brothel owners add on the costs of food, clothes, medicine and other expenses. Escape is virtually impossible without repaying the "debt," since leaving the brothel puts the woman at risk of punishment by the brothel owner, his employees or the police, retribution against her parents and other relatives for defaulting on her debt, and/or arrest as an illegal immigrant. Women trafficked or sold into forced marriage are also held captive through financial obligations. Distance from home, lack of familiarity with the local language or dialect, and inability to find local support networks further reinforce the women's and girls' dependence on the brothel owners, pimps or "husbands."

Victims of forced prostitution in particular are exposed to health risks, especially sexually transmitted diseases (STDs), because they are not allowed to negotiate the terms of sex. Aside from risk of infection through sexual intercourse with many clients, the growing popularity of contraceptive injections in brothels also contributes to the spread of disease, since brothel owners often use the same and possibly contaminated needle several times. For women who develop AIDS, forced prostitution is ultimately fatal. Other women have become infertile due to other STDs and, thus, unmarriageable in cultures where the primary purpose of marriage is procreation. Shunned by their own families and communities, many of these women must return to prostitution in order to support themselves.

3. Because prostitution is illegal in most countries, and prostitutes are scorned in virtually all, victims of forced prostitution face legal and moral isolation. Human Rights Watch takes no position on prostitution per se. However, we strongly condemn laws and official policies and practices that fail to distinguish between prostitutes and victims of forced trafficking, treating the latter as criminals rather than as persons who deserve "temporary care and maintenance" in accordance with international human rights standards. We also oppose laws and policies that punish women who engage in prostitution but not the men who operate and profit from prostitution rings and who patronize prostitutes: such policies are discriminatory on the basis of sex. Moreover, we are extremely concerned that absent effective law enforcement and social services for the victims, such attitudes toward prostitutes exacerbate the problem of trafficking. Out of fear of social ostracism, women are reluctant to speak about their experiences of abuse and thus to warn others who might also be vulnerable.

Although trafficking in women and girls has become a lucrative and expanding cross-border trade, it routinely escapes effective national and international sanctions. Trafficking for the purposes of forced prostitution has frequently been mischaracterized by governments and human rights organizations alike as a voluntary act, presuming the women's consent, even when ample evidence exists to the contrary. Both forced prostitution and coerced marriage also have largely been dismissed as crimes perpetrated by private individuals for whom states have no responsibility under international human rights law. In fact, governments do have specific international legal duties to take steps to eradicate trafficking and related abuses.

ØWhat do you understand by autonomy of the legal system?

Judicial autonomy describes the concept of the judiciary system being independent in their workings, functions and procedures. When referring to government and their workings, judicial autonomy means that the judicial branch or system is not influenced by other branches of government, follows its own rules and codes that are separate from outside influences and therefore bias. An autonomous judicial system therefore means a fair one, acting with previously agreed upon rules and law.

Judicial autonomy simply means that the system sticks to its own code and medium, and does not subordinate its decision-making to the codes of the other systems. When the courts can no longer decide on cases without waiting for instructions or cues from outside the system, we say they have lost their autonomy. This happens, for instance, when decisions are routinely offered for sale, or are subject to personal debt of gratitude, or when they are dictated by political and ecclesiastical authorities. This does not mean that the courts must shut their eyes and ears to what is happening around them. All it means is that they stay normatively closed even as they remain cognitively open.

This is how a modern society functions. It relies on the stable functioning of co-equal institutional systems. When one system deviates from its own code, its performance becomes erratic and cannot be depended upon by the other institutions as a basis for their operations. The latter will thus find ways to remedy the situation.

Perhaps, the relevant question to ask, given the circumstances we now face, is whether the judiciary, from the lowest court to the highest, can issue decisions without being constrained by their fear of a supposedly powerful “super-president.” This issue has been raised, but I do not see that this is what is taking place at the moment. This may, of course, happen as it did happen during martial law. But in a society with a free media and a vocal opposition, political pressure and its outcomes would be difficult to hide. Media would be all over the place. Decent members of the judiciary, and there are still many, would recoil and perhaps resign in protest.

It is different, however, when judges march in the streets to protest the impeachment of a chief justice. They are taking sides on an issue that is already under the jurisdiction of the Senate acting as an impeachment court. Are they doing so as ordinary citizens or as judges? Are they not violating the law when they declare a court holiday and march on the streets on government time? They must know that street protest is not a medium available to judges as judges. Are they not undermining the authority of their own courts when they express their partiality on a case that belongs to another co-equal branch of government?

Autonomy does not mean immunity from criticism or pressure. What it means rather is that, in the face of all these, an institution can summon enough will to protect and stay within the basic code of its operating system. The flipside of autonomy is authority, the legitimate power to command or make decisions. When an institution loses its autonomy, it thereby also undermines its authority.

ØMedia and judiciary

The term judicial process refers to the rules of procedural law that consists of both hearing and determining cases in criminal proceedings, civil lawsuits or administrative proceedings by constitutional courts. In case of civil or criminal offences, the subjects often find it prudent to settle the matter in a court and the process of listening to the evidence collected by the prosecutor and the defense of the accused in the presence of a judge is what is referred to as proceedings. A judicial process involves judges and juries who interpret and apply the law in resolving a dispute as well as administering justice. The process puts into consideration the rules that determine the roles of judges and the juries in the courtroom. In setting up these rules, fairness and consistency have to be ensured to facilitate the application of fundamental justice. The court involved in these hearings and proceedings have to apply these rules equally in all the cases presented before it. Judicial process can be understood as the rules that touch on the responsibility bestowed upon the judge and jury within the courtroom. Included in these rules is the individual court’s jurisdiction over precise law areas.

It can be universally agreed that the media is the best medium through which the public learns of the judicial process. This may be in writing as for the case of newspapers. Others like television recorded video tapes and radio can never be left out, this majorly operates at designated frequencies. All this media outlets have relatively heterogeneous and anonymous audiences who have different interests. There are those that are interested in the case for their own study purposes while others want to gauge the institutions in charge of justice in a given country. The media however may, however, cloud this view by the manner of coverage.

The judicial process usually attracts a lot of attention from the public in that people want to be furnished with information on the progress of the case. It is in the wake of these concerns that media becomes instrumental; media will convey the proceedings of the judicial process as well as air out views of the public concerning the verdict arrived at by the judges. Many are times the media will tend to influence the reception of the audience concerning any given subject .Media will identify the biasness of the approach of the issue as well as focus on the irrelevant and unrealized justice that may stir ill feelings about the judicial process among the public.

Several issues have emerged as a result of the debate on whether both television and electronic coverage of the court proceedings should be publicized. The debate’s aim is to strike a balance between access by the public of these judicial proceeding and the adverse effects the same could have in within the courtroom. Some of these emergent issues include the transparency of the arena of democracy and democratic values, due process, separation of powers, civic education, security and observation of integrity during court proceedings. Due to these issues, it is evident that both the proponents and the opponents had their arguments and defenses.

By televising judicial proceedings, the judiciary is depicted as transparent and open. This act is a representation of progression- on natural basis- from audio-taping to enable the public access these proceedings easily and therefore seeing to it that the levels of transparency are raised in the operations of the court and the government in the broader perspective. Senator Patrick Leahy also supported the same by saying that these court proceedings ought to be unbolted to the public. This transparency through the publicizing of the court proceedings also has an educational value. Publicizing the proceedings in the courtroom safeguards the privacy and security of those involved. The act of obscuring the voices and images of both the jurors and the witnesses makes security and privacy available.

The media plays a pivotal role of providing the general public with educational reporting of all the happenings during the court proceedings. The media coverage ought to be shaped to fit well with the rules of judicial process that are designed to ensure justice is delivered. Cases of criminal justice involve third parties of neutral interest whose conduct stand to be affected by media coverage. The media can either intimidate or expose the parties to future insecurity. In the past, media reporting have presented difficulties as parties involved have either been influenced in one way or another. Measures to ensure balanced media coverage should therefore be instituted to protect the sanctity of the judicial process.

ØEqual rights in Parental property in Nepalese Society

The status of women is defined in terms of their marital or sexual status; the right to ansha is fragile, temporary and imperfect. A woman is entitled to her husband’s property not as an independent co-parcener but because she is his wife. What she receives in terms of ansha from her husband is governed by the continuation of the marital relation with her husband. She can only continue to hold the right to ansha until she remains chaste or sexually faithful to the husband. She is uncompromisingly and strictly prohibited to have sexual relation with any man other than her husband, failure to maintain which deprives her of the right to ansha. A daughter is not entitled to ansha because she gets her status changed by marriage. Yet, under the existing legal system, once she reaches an age of 35 years, she is entitled to ansha because the general presumption is that the chance of changing her status through marriage then becomes almost rare.

The Constitution of the Kingdom of Nepal, 1990, under chapter 3 guarantees “right to equality” to all the citizens as a fundamental right. It states that the State shall not discriminate amongst citizens on grounds of race, caste, and sex. It also states that the Constitution is the fundamental law of Nepal and all laws inconsistent with it shall be void. However, discriminatory laws against women in relation to property right still prevail. Nepal has also become a State party ratifying the CEDAW on April 22, 1991, without reservation. Mandatory country report was submitted after a delay of 6 years. The State has made no deliberate effort to eliminate de jure and de facto discrimination against women in accordance the spirit of CEDAW.

Evidence of discrimination and disparities are as follows:

a) A daughter is denied from equal inheritance rights,
b) Daughter is denied the right to maintenance,
c) Discrimination in the line of succession (The line of succession gives a right to inheritance to the daughter only after mother and brother),
d) Discrimination on dolaji property,
e) Discrimination against Married Women to get the Property,
f) Divorcee Woman without Property Right (only conditional maintenance right),
g) Unfaithfulness looses the right in the husband’s property,
h) A victim of rape is considered as ex wife by the law,
i) Discriminatory Property Right of a Widow,
j) Discrimination on tenancy right,
k) Discrimination on Transaction, and
l) Consent needed to dispose of immovable property.

Holding of such traditional values by both the lawmakers and many common Nepalese people have been detrimental for the realization of equal rights for both sons and daughters. Majority of the population is still exposed to such values because of lack of access to modern education. Negative Campaign in the Media have had the following messages: The Nepalese society is not yet prepared to embrace equal property rights. Nepalese social structure would be badly disturbed by equal property rights. Hindu religion would be wounded if equal property right is given.

The Bill would destroy the prevailing harmonious family relationships. There already exists many court cases among brothers relating to property rights and equal property rights would only result in increasing their number, as there would be cases among the brothers and sisters as well. Brothers would no longer show respect and fulfill their responsibilities to their sisters. Equal property rights leads to land fragmentation. Equal property rights in Nepal and prevailing discrimination in neighboring country India Daughters may refuse to get married since they would be economically independent after getting equal property rights.

A woman would be entitled to dual property, one from her father and the other from her husband. If wife is uneducated, her husband and his family might misuse her property and then throw her out of the house. Domestic violence would go up because of conflict of interest between the husband’s family and the natal home. Equal property rights would trigger divorce. The number of spinsters, polygamy and abortion would increase if women get equal property rights. If daughters should get equal property rights, aged and/or disabled parents would be deprived of care from their sons Property right is a non-issue in a country where the majority of the population lives below poverty line.

What is important to girl child/women is access to education and opportunities and not property rights. In the Hindu tradition, a woman is entitled to her husband’s property making equal property rights irrelevant.

To me, our patriarchy culture of passing down the parental properties to male children is the most influencing factor behind why the Nepali society is as it is. This one concept is all behind defining our parenting style, society, responsibility, morality, values and ethics -- the cornerstone of our society I must say. This indeed is the saviour of patriarchy. Gladly, this saviour is catching its last breathe as a law has been drafted that will give equal property rights to female children as well. However, I doubt it will be strong enough to kill the patriarchy as most of those lawmakers are themselves are misogynist in true self. Time only will say what they are cooking. For now, let's understand this concept and how it has affected/influenced our life and defined our society. This understanding is MUST, before we talk about changing this facet of our society. Let's start from zero for simple perspective.

A man and woman get married. They make wealth; they make babies, a son and a daughter. Kids grow up. Daughter gets married and goes to husband's house. Son gets married and brings a woman home. Father hands over his properties. Stepping onto that, the son tries expanding his family, expanding his properties, grow and prosper. The wife takes care of house and in-laws (or, just step out of parents' house taking the share of properties and live his life with his wife and newborn kids). Other side, the daughter is playing role of wife and her husband is playing the role of her brother. This is how our society functions. As simple as that.

But wait, it's not as simple as that, from psychoanalysis.

1. The above story gave male child the guarantee of financial security and thus boost in his confidence and self-esteem, and daughter not having the rights, she is dependent, first on her brother and then her husband, thus low in confidence and self-esteem due to lack of financial security.

2. Since key to properties lies on parents' hand, son and daughter-in-law tend to be soft and nice to parents, especially when there are other male siblings to compete with. And, parents tend to be bossy. The couple fear to go against in-laws' expectations and preference as that would cost property rights. That's why south Asian in-laws are stereotyped as bossy, controlling, nosey, etc. Woman is exploited here once again as a daughter-in-law.

3. Taking properties from parents gives moral responsibility to son and daughter-in-law to take care of them, their life, their expectations and priorities, their well off until their last day on Earth. This adds stress and burden to the guy. His preferences begin surrounding around family and children and ageing parents and thus he stops living his life for himself and rather for others. Birth of philosophy of "Live for other"

4. Daughter on the other side is lost in her own life and responsibilities that she barely gets time to think about her parents. Thus the birth of culture "daughter once married and gone, gone forever"

This system has given birth to some good philosophies and some bad philosophies; have made life bit secured financially but at the cost of personal freedom. This system is behind arranged marriage, behind helicopter parenting, behind many abuse and discriminations. Everything that happens around that we call "our culture, our society, and our system" is this very patriarchy "sanskar." Since cons outweigh pros, the need of changing this system has been voiced.

Now, we are talking about equal property rights. This sounds so exciting to many feminists out there, but I am not sure how much of preparedness they are into, once the system is unleashed.

Good thing is obviously; hence female child too will feel financially secured and thus high in confidence and high in self esteem. This will definitely reduce domestic violence, abuse and discriminations, as women were taking all the crap from bad husband and family due to lack of financial security.
However, there going to be some drastic change in attitude.

1. When a sister is getting equal share of properties, brother naturally will expect equal share of responsibility-bearing regarding care of parents during their old age.

2. Wife will begin expecting husband's sister's husband (i.e. brother-in-law) taking the equal share of responsibility-bearing on in-laws care during their old age.

3. This situation will lead all the involved parties into more stressing situation. Now, a son who is also a son-in-law of somebody and a daughter who is also a daughter-in-law of somebody have two old parents to look after along with own children, whereas in patriarchy one is expected to look after just own parents. Imagine how stressful it will be and also how feasible it would be to look after both sides.
4. This stress will invite more conflict and chaos in family. Also, this property issue that has spoiled many brother-brother relationships will include sisters also, will drag in-laws.
Parental properties don't come for free. It comes with huge responsibilities. It's easy to say on social media "equal rights" but not sure, how many of them really understand the burden it comes along with. In simple perspective, everything that Nepalese guys go through, hence girls too will go through taking care of spouse, taking care of kids, taking care of parents and taking of in-laws. Ultimately, equal property sharing rights will create a society where there is more conflict, more chaos, and more stress. Just think of yourself, stepping on shoes of son in existing patriarchy system and think of stepping on shoes of son in proposed system. Also step on shoes of a female in both systems. Try to grasp pros and cons.
I personally don't favour equal property rights. This does not mean I favour old system of male having default rights on parental properties. I dream for a system where property right is solely left upon parents' desire. If they think passing down properties to daughter is a better decision, let them do that, let son step out of house and live his life as it pleases and daughter take the responsibility and vice versa. Or, let them donate their properties to some trust that would take care of them. Whatsoever, neither son nor daughter will be granted the properties by default and rather they have to earn for it. This will lead to the western society - "If I get my parental properties, well and good, ice on cake. If not, anyway I was not planning my life counting those properties." This leads a society to more personal freedom, more options, more dedication towards life, more growth oriented, more spouse and children oriented family.

I don't know what's really being drafted. Give the nature of our lawmakers; I am afraid they are cooking some khichadi laws that will still keep the patriarchy alive. In black and white, they must be creating equal property rights, and I warn our lawmakers to not make mistake of creating equal property rights either. This going to totally shift paradigm of our society from bad to worst. What New Nepal should be driven by is individualism, personal happiness above others, personal goals and desires and ambitions above all. We need to embrace the law of nature, invisible hand phenomena, and let the society functions per their sole decision on what action of them would benefit them. When parents are given choice rather than forced to divide, they are much better in deciding what is best for them. When parents are dragged to divide properties among son and daughter, you are forcing them to be part of conflict between brother and sister and their spouses. Property is evil if is not handled carefully. We must not create another evil society in the name of New Nepal. What Nepal needs is a freedom from feudal structure, feudal values, freedom from any kind of provisions and laws that force an individual to not be free and live as it pleases. If patriarchy is to keep alive, why we call it New Nepal. If children drooling and living parental properties, why call it new Nepal.

I dream for Nepal, where a kid is born out of love, is raised out of love, and set free out to be human, do something innovative, do something creative, fight and compete, live his life as it pleases. Parents live their old age on their earnings, until they can. Then decide, whether to give property to son or daughter or some trust, solely based on their own decision.

ØChild Labour

Child labour is defined as “under aged children working for money or food or for any other basic needs”. There are thousands of children who work as labour in factories, construction sites and homes. This is a problem that the government and the people need to deal immediately.

Child who work as laborers are made to do backbreaking work all day long. They are easy to be ordered around and other laborers too might tell them to do this or that .They are paid lesser that grownups and even beaten or ambushed. They are abused in every field. For instance, while carrying stones, while working in machinery etc and some of them work on machines with risky that many children have been maimed and killed while working on such machines.

One major reason for people sending their children to work is poverty and financial difficulties. Most of the poor people are uneducated so they are not aware of science and technologies. They are still wrapped in superstition and false beliefs. Day by day population is rapidly growing and there are unlimited demands of people over the limited opportunity which can also take as the reason of child labour especially in the country like Nepal.

We should look at child labour from different angles. The solution to the problem lies in economic development and jobs for all. The Government and other organizations must do the needful step to bring about an end to poverty, illiteracy, narrow thinking, which will automatically end child labour.

Child Labor in Nepal

Childhood is the foundation of one’s future life. The Children need freedom, justice and peace so as to enhance their dignity and promote prosperity. The children below the age of sixteen years should be provided with proper love, care and opportunity. Despite this, some evil minded people force them to involve in physical labor and exploit them physically and mentally as well. This saddening problem is child labor. We innocent people have just been the eye witness of this bad condition.
Obviously, the children are deprived of enjoying that right. The children require proper love and affection from parents. So as to make their all round growth and development possible. They equally need educational opportunity and recreation. Instead, large numbers of children are forced to face physical and mental torture in course of their work. Nepalese people are mere ignorant. Most of the people are uneducated. They are gullible by nature. They send their innocent children to well to do family or factories to work for the sense of making money. We Nepalese people possess poor economic status. We need to have any means of earning. Unemployed has been burning problem of the country. Thus, the people send their children to work as laborer is for the sake of employment and money. Prevailing impunity due to the growing political instability has also caused the increasing in child labor in Nepal.
Some Children are forced to give up their studies for the sake of minimal jobs. They get employed in the house of well to do people, factories, industries, hotels and even in public vehicles. It is the matter of regret that even the high rank officials and law makers have employed children in their house as servants preventing them from enjoying their inborn rights. These child laborers involve in household activities and others like washing dishes, tending cattle, carpet making carrying load etc. They are neither treated well nor paid with attractive salary.

Poverty, unemployment and impunity are increasing at high scale. Thus, this problem is increasing day by day. The government of Nepal now has paid proper attention to control it. Child rights have been introduced as the fundamental rights in the present interim constitution. Let's hope, this problem can be minimized by implementing the laws strictly. Mass unawareness is only the key of social reform.
Thus, educational service should be extended to the every part of the country. People should be educated about the consequences of this problem. Laws of the country should be punished. The works of NGOs and INGOs in this field should be controlled and supervised. Only then, Nepal can be free from this worse condition of children and child labor.

ØSocial Justice v. Legal Justice

Social justice is the fair and just relation between the individual and society. This is measured by the explicit and tacit terms for the distribution of wealth, opportunities for personal activity and social privileges. In Western as well as in older Asian cultures, the concept of social justice has often referred to the process of ensuring that individuals fulfill their societal roles and receive what was their due from society. In the current global grassroots movements for social justice, the emphasis has been on the breaking of barriers for social mobility, the creation of safety nets and economic justice.

Social justice assigns rights and duties in the institutions of society, which enables people to receive the basic benefits and burdens of cooperation. The relevant institutions often include taxation, social insurance, public health, public school, public services, labour law and regulation of markets, to ensure fair distribution of wealth, and equal opportunity.

ØDifference between Law and Justice

Key Difference: Laws are actually rules and guidelines that are set up by the social institutions to govern behavior. These laws are made by government officials. Laws must be obeyed by all. Laws set out standards, procedures and principles that must be followed. Justice is a concept that is based on equality, righteousness, ethics, morality, etc. This concept states that all individuals must be treated equal and the same. The term justice is a huge part of law and almost all aspects of law are based on this concept.

Law and justice are two words that often go hand-in-hand. These words are often confusing for many people who believe that these words are the same or refer to the same thing. However, this is not true. Law is basically a set of rules that define what is right and what is wrong, while justice also takes into consideration the circumstances that surround the right of wrong at that time. While law is a system, justice is a concept that is the basis of this particular system.

Laws are actually rules and guidelines that are set up by the social institutions to govern behavior. These laws are made by government officials that in some countries are elected by the public to represent their views. In simple terms, laws are basically things that a person can and cannot do. It is enforced by government officials such as police officers, agents and judges. Laws are ideas that must go through the process of checks, balances and votes in order for them to become a law. However, the enactment of a law varies based on the government. In an autocracy, the leader has the power to pass any law he wishes. In a democracy, the bill to enact a law must be voted on by the different parts of the government. Laws must be obeyed by all, including private citizens, groups and companies as well as public figures, organizations and institutions. Laws set out standards, procedures and principles that must be followed. A law is enforceable by the judicial system, i.e. those responsible for breaking them can be prosecuted in court. There are various types of laws framed like criminal laws, civil laws, and international laws. Breaking a law is a punishable crime and has drastic consequences such as hefty fines, jail time and community service time.

Dictionary.com defines ‘law’ as:

· The principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.

· Any written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its constitution.

· The controlling influence of such rules; the condition of society brought about by their observance.

· A system or collection of such rules.

Justice is a concept that is based on equality, righteousness, ethics, morality, etc. This concept states that all individuals must be treated equal and the same. The term justice is a huge part of law and almost all aspects of law are based on this concept. The term as a part of law suggests that law must be right and equal for everyone; irrespective of caste, religion, ethnicity, creed, etc. Everyone must have the same rights as another. In many countries, justice if often represented using a blindfolded lady with a set of scales in her hand. In some countries such as the US, there is also a sword in her hand. The blindfold is used to depict the irrelevance of the cast, gender, etc,, while the scales is used to represent the equality in weighing competing claims in each hand. The sword is used to symbolize the court's coercive power. Law and court are used to implement justice by providing punishment for law breakers.

Merriam Webster defines ‘justice’ as:

· The maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.

· Judge

· The administration of law; especially: the establishment or determination of rights according to the rules of law or equity.

· The quality of being just, impartial, or fair.

· The principle or ideal of just dealing or right action: conformity to this principle or ideal.

· The quality of conforming to law.

ØOpen texture of HLA Hart

H. L. A. Hart and the "Open Texture" of Language try to clarify the writings of both Hart and Friedrich Weismann on "open texture". In Weismann’s work, "open texture" referred to the potential vagueness of words under extreme (hypothetical) circumstances. Hart's use of the term was quite different, and his work has been misunderstood because those differences were underestimated. Hart should not be read as basing his argument for judicial discretion on the nature of language; primarily, he was putting forward a policy argument for why rules should be applied in a way which would require that discretion.

Both Hart and Weismann wrote on the existence of ‘open texture’ within the circumstantial gaps of human-flawed rules and practical perception. Weismann derived the term from his approach to Wittgenstein's philosophy, and argued on the general vagueness of the language. H.L.A. Hart argued on judicial interpretation between formalism and rule-skepticism that legal rules have an applicable meaning in accordance with the depending situation, but the problem lies within the language vagueness in interpreted application. The chapter discusses Hart's view on the nature of language, rules and rule application.

ØHard Case of Dworkin

Philosophers and legal scholars have long debated the means by which decisions of an independent judiciary can be reconciled with democratic ideals. The problem of justifying judicial decisions is particularly acute in "hard cases," those cases in which the result is not clearly dictated by statute or precedent. The positivist theory of adjudication - that judges use their discretion to decide hard cases - fails to resolve this dilemma of judicial decision making. Professor Dworkin has been an effective critic of the positivist position and in this essay he provides an alternative theory of adjudication that is more consistent with democratic ideals. He first posits a distinction between arguments of principle and arguments of policy and suggests that decisions in hard cases should be and are based on arguments of principle. He then illustrates how this distinction is used in cases involving constitutional provisions, statutes, and common law precedents.

An Evaluation of the Positions of Hart and Dworkin on the Role of Judges Faced with Hard Cases

‘Hard cases’ is a general name for those cases where the law is not clear as to who the judge should rule in favour of, which are normally due to a lack of relevant precedent. This role of judges is controversial among philosophers because if there are such gaps in the law it would appear that when decisions are made, the substance of the new ‘law’ created would be chosen by them. Defended by H. L. A. Hart in his seminal The Concept of Law , this has become the default positivist position. In what has become one of the most important debates in jurisprudence, Hart’s view has been subjected to sustained attack by the successor to his chair at Oxford, Ronald Dworkin.

For the latter, the body of the law is fully determinable, so the creation of precedents is an organic development and never a case of filling-in gaps. Dworkin shows that Hart’s theory has problems here- the most obvious being that for unelected officials to be legislating is contrary to the ‘rule of law’ as enshrined in the separation of powers. But in this essay it shall be argued that Dworkin fails to establish a stance on judicial discretion as plausible as Hart’s, due to the potential for the law to be underdetermined on some issues, particularly in view of the ultimately incommensurable nature of legal principles with legal rules.

Because Dworkin initiated this debate, we shall follow his understanding of judicial discretion, which is specifically about the duties of judges. He classifies three senses in which we use the term ‘discretion’, two weak and one strong sense. The first is when the judge’s “duty is defined by standards that reasonable men can interpret in different ways”, like a sergeant who has been ordered to pick his five most experienced men for a task. The second is different because it is not dependent on the judge’s duty as such, but on the finality of his decision. Here discretion consists in the absence of a higher authority who can revise his decision. The third and strong sense is that by which the judge is free of the duty to rule a particular way, where the authority doesn’t impose any particular standards, like the case of a sergeant ordered to pick any five men for a task. Although Hart describes the judge’s interpretation of ambiguous terms as central to discretion, it is the third and not the second sense which Dworkin discerns and objects to within Hart’s theory.

A final prefatory clarification is on the natures of the respective philosopher’s systems. Perhaps the deepest divide between them is that while Hart is a utilitarian, Dworkin is a (non-absolutist) deontologist, whose ethics centers on individual rights rather than general wellbeing. This bears on our debate because for utilitarian’s, where two outcomes produce the same quantity of wellbeing they are equally preferable. But for Dworkin moral questions always have an objectively right answer determined by the duty to others which is most binding. Thus, in so far as the law is moral, there will always be an objectively correct answer. This is crucial because Dworkin sees the law as essentially moral, with a ‘constellation’ of moral principles implicitly recognized in the common law tradition. These moral principles are an inherent part of the law, and are closely related to our political values of liberty, equality, and fairness.

Principles have a quality that distinguishes them from rules, which Dworkin calls ‘weight’, i.e. an added dimension. In addition to the spectrum of applicability (or relevance to a case) on which we find rules, principles also lie on a spectrum of seriousness. By definition rules cannot conflict with each other, but where principles do we weigh their seriousness against each other. Dworkin claims that the weight of principles can be discovered objectively, not in the sense of being value-free, but as having mind-independent truth.

So when the law appears to have run out –in terms of rules– the law itself has not run out but has an underlying determinacy as an integrated body of rules and principles to be reconstructed by the judge. The judge as an interpreter (and never a legislator) is duty-bound by the law to rule in accordance with its uniquely correct moral and legal answers. Thus he has no strong discretion.

Dworkin makes paramount an analogy between the nature of this interpretation and the development of a multi-authored narrative. Two conditions for the identification of the correct ruling are given. The first is that the judge search for that decision with best fit with the settled law. The judge is like an author updating a novel that, recognizing the continuities of plot and setting, is duty-bound to carry on in the vein of the original. The second condition requires that this must be made with the law viewed in its best light- which gives preference to the most intelligent decisions and ethical standpoints, with particular reference to individual liberties, equality and democracy. So now the author strives to integrate inferences from the narrative structure (best fit) with the more aesthetic judgments of quality, such as tone and characterization (best light).

These criteria do, he says, firmly guide judges to one right answer, but this is far from being a mechanical process since it relies upon the free exercise of their legal skills. Of course, the question of whether judges actually make the right decisions in practice is a separate issue- Dworkin’s claim only depends on there being a unique right answer in theory. He explains this conviction with the thought experiment of a Herculean judge whose interpretive prowess is such that he -aware he has no strong discretion always determines the answer that is the most fitting and moral one possible.

How clear the reasons for the answer being correct will vary, indeed, there are some circumstances in which no judge would be able to find them in practice. Dworkin says that a rough guide for reconstructing the integrity between these two poles is choosing the most morally satisfying decision out of those that make sufficient sense of all settled law- which means not distorting or omitting any of its key areas.

Hart accepts the distinction between rules and principles but as a positivist he rejects the notion that the latter are inherently legal- the law is solely a system of interacting rules. As above, these rules -at least insofar as they have clarity or determinacy- can run out, so Hart follows John Austin in accepting that judges have a role which includes making decisions as representatives of the government. This means discretion is not only the duty of interpreting the law, but permission to decide what it is- what Dworkin categorizes as strong discretion. Hart qualifies this, however, saying that their choice must be neither arbitrary nor mechanical, and that skilful judges impartially consider the interests of all parties who will be affected by the decision.

So how determinate is the law? Hart says that (in theory) it is determinate at its core, and there the linguistic form in which it is expressed is clear enough for it to form the basis of legal decisions in general. But as the law branches out of this core the rules become less determinate, reaching into a ‘penumbra of uncertainty’ where the important concepts are limited by ambiguous language. This significant indeterminacy is responsible for hard cases, and he elaborates it with reference to the open-textured nature of language. Hart’s favoured example for explaining open-text redness in law is the general term ‘vehicle’. This simple word, which a legal decision could well hinge upon, is not closed to a specific set of meanings but can be interpreted so as to limit or to include very different things. Hart is especially critical of the logical formalism of judges who try to over-generalize by taking arbitrary features of one case to be necessary conditions for a range of others. Ultimately “choice, not ‘logic’, would force the judge to include a toy motor car”.

One of Dworkin’s key objections to Hart understands is that it means judges can punish people via retroactive laws- i.e. those affected in the case where the precedent is set. This conflicts with our common standards of justice. Of course for Dworkin judgments in hard cases do change the law, but unlike Hart’s understanding, this innovation is minor compared with the overall continuity that the new law has developed within. Hart would likely respond that the defendant should have known that there was a gap in the law on that issue and that in so acting they were running the risk of having a precedent made against them. Dworkin’s complaint is not insubstantial, but it is far from decisive.

Another argument is found in Dworkin’s use of the hard case Riggs v. Palmer to illustrate that we cannot simply follow the black letter of the law- that reference must be made to principles within the common law. He stresses that the relevant rules to this case, concerning inheritance, were central and not penumbral in their meaning- the rules were clear. But if Positivism were true judges wouldn’t have been concerned with debating the meaning of a rule with a central meaning, and it was very controversial. Judge Earl explicitly recognized a principle (not benefiting from your own wrongdoing) as running through the common law tradition, and as being decisive to his judgment. Dworkin’s argument is doubly fallacious, it assumes both that what ought to be so, is so (like all of his arguments against Hart’s theory mentioned), and that the decision in this case was the right one (begging the question against Hart’s theory which would say it was wrong). But these points still count in favour of Dworkin’s theory, because they bring attention to the strength of our moral intuitions and of the attitudes of legal professionals towards the view that there are moral principles in the law that guide us towards particular answers.

Yet there are stronger considerations to be made against Dworkin’s theory. To begin with, even when we grant that these moral principles are part of the law, after taking the holistic analysis of law that Dworkin suggests it would remain an open question whether there would be a single correct judgment on any case. It still needs to be explained what it is that guarantees that the law is fully determinate.

John Finnis makes an objection based on the problem of incommensurability. He says that Dworkin has wrongly assumed that the criteria of best fit and best light are commensurable. On the contrary, these two superlatives may well pull in different directions, as would often happen with ‘funniest’ and ‘best’. While we can actually objectively adjudicate between competing rights in terms of seriousness, these rights will sometimes require us to depart from the decisions that fit with our prior common law tradition. This is to say, they require us to check our human laws against a natural law. Of course, the principles Finnis refers to here are grounded on absolute values distinct from a particular legal system, and this is something Dworkin rejects. But here Finnis’ position is more consistent with the belief in objective moral duties in the law that he and Dworkin share. Similar points are made by philosophers as diverse as Neil MacCormick and Jacques Derrida, and they hold good:

Dworkin has contrived too hard to force the precise technical procedures of the law- understood in a descriptive sense, into the same mould as the demands upon judges as agents with a moral integrity to uphold- understood in an evaluative sense.

Overall, however, the crucial problem with Dworkin’s theory is that his own criteria for discerning the correct ruling are significantly open-textured. Hart points out that on Dworkin’s theory some of the principles contained in the law will be very general and abstract, so not only will they be unclear to judges but there is likely to be lots of overlap and conflict. The decision may be underdetermined by the absence of clearly binding duties, or a chaotic result might arise from the over determination of more than one possible decision having different sets of best fit and best light going for them. As such it becomes implausible to maintain that there could always be one particular principle, or particular arrangement of principles which when followed, would fit the existing legal rules on the issue best.

Although Hart’s philosophy of law (as presented in The Concept of Law) is far from comprehensive, as positivists such as Neil McCormick have pointed out, Dworkin’s principles can be accepted under a broadened understanding of Hart’s rules, but that on the question of legal validity, these can be traced back to a rule of recognition (so a Natural Law account of authority of the law need not be conceded). In view of this especially, Hart’s views on judicial adjudication are significantly more plausible than Dworkin’s, and as we saw with its main competitor, Finnis’ Natural Law theory, and strong judicial discretion is more defensible upon other theoretical systems also.

ØLaw and Economics

“Law and economics,” also known as the economic analysis of law, differs from other forms of legal analysis in two main ways. First, the theoretical analysis focuses on efficiency. In simple terms, a legal situation is said to be efficient if a right is given to the party who would be willing to pay the most for it. There are two distinct theories of legal efficiency, and law and economics scholars support arguments based on both. The positive theory of legal efficiency states that the common law (judge-made law, the main body of law in England and its former colonies, including the United States) is efficient, while the normative theory is that the law should be efficient. It is important that the two theories remain separate. Most economists accept both.

Law and economics stresses that markets are more efficient than courts. When possible, the legal system, according to the positive theory, will force a transaction into the market. When this is impossible, the legal system attempts to “mimic a market” and guess at what the parties would have desired if markets had been feasible.

The second characteristic of law and economics is its emphasis on incentives and people’s responses to these incentives. For example, the purpose of damage payments in accident (tort) law is not to compensate injured parties, but rather to provide an incentive for potential injurers to take efficient (cost-justified) precautions to avoid causing the accident. Law and economics shares with other branches of economics the assumption that individuals are rational and respond to incentives. When penalties for an action increase, people will undertake less of that action. Law and economics is more likely than other branches of legal analysis to use empirical or statistical methods to measure these responses to incentives.

The private legal system must perform three functions, all related to property and property rights. First, the system must define property rights; this is the task of property law itself. Second, the system must allow for transfer of property; this is the role of contract law. Finally, the system must protect property rights; this is the function of tort law and criminal law. These are the major issues studied in law and economics. Law and economics scholars also apply the tools of economics, such as game theory, to purely legal questions, such as various parties’ litigation strategies. While these are aspects of law and economics, they are of more interest to legal scholars than to students of the economy.

ØRiggs v. Palmer

Facts of the case

On August 1880 Francis Palmer made a will naming is two daughters, the plaintiffs, Mrs. Riggs and Mrs. Preston, heirs to a minority of his estate. The remaining legacy was named under his grandson, Elmer Palmer, the defendant in this case. Elmer Knew of the provisions made in his favor in the will, and, that he might prevent his grandfather from revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate possession of his property, he willfully murdered him by poisoning him in 1882

Issue

Whether or not Elmer Palmer, who murdered the testator Francis Palmer, should inherit in accordance with the will.

Plaintiff's argument (Counsels: Leslie W. Russell and C.E. Sanford)

The right of Francis B. Palmer to make another will was a sacred one, entitled to the protection of the law, and he had the same right to enjoy his property until death. Elmer E. Palmer violated both of these rights, which are civil rights, independently of criminal punishment.

The courts favor a decision which upholds common decency and common morals, and violates no rule of law or equity. The claim can be sustained upon the ground that Elmer Palmer is stopped by his own conduct from claiming the title to this property.

Respondent's argument (Counsels: W. M. Hawkins)

Where a legatee, by improper means, prevents the testator from making proposed changes in his will, this prevention cannot operate to invalidate the will. It does not lie with the court to enhance the pains, penalties and forfeitures provided by law for the punishment of crime, nor can it add any disability to those pains and penalties not expressly declared by the constitution or laws.

Decision of the court (All concur with Earl except Gray)

The court decided in favor of the plaintiffs. Their reason based on a maxim that, no one shall be permitted to take advantage of his own wrong, thus to acquire property by his own crime.

Furthermore, there is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute. (Look at the intent of lawmakers). We make use of rational interpretation, suppose the law-maker present, and give yourself such answer as you imagine he, being an upright and reasonable man, would have given as to whether a case is within the equity of the statute.

Dissent's arguments

whether a testamentary disposition can be altered, or a will revoked, after the testator’s death, through an appeal to the courts, when the legislature has, by its enactments, prescribed exactly when and how wills may be made, altered and revoked, and, apparently, as it seems to me, when they have been fully complied with, has left no room for the exercise of an equitable jurisdiction by courts over such matters. Furthermore, to concede appellants’ views would involve the imposition of an additional punishment or penalty upon the respondent.

ØStructural functionalism

Structural functionalism, or simply functionalism, is a framework for building theory that sees society as a complex system whose parts work together to promote solidarity and stability. This approach looks at society through a macro-level orientation, which is a broad focus on the social structures that shape society as a whole, and believes that society has evolved like organisms. This approach looks at both social structure and social functions. Functionalism addresses society as a whole in terms of the function of its constituent elements; namely norms, customs, traditions, and institutions. A common analogy, popularized by Herbert Spencer, presents these parts of society as "organs" that work toward the proper functioning of the "body" as a whole. In the most basic terms, it simply emphasizes "the effort to impute, as rigorously as possible, to each feature, custom, or practice, its effect on the functioning of a supposedly stable, cohesive system". For Talcott Parsons, "structural-functionalism" came to describe a particular stage in the methodological development of social science, rather than a specific school of thought.

Ø Law and politics

This examines some basic characteristics of the relationship between national and international law and politics. The law functions in relation to politics in three basic aspects, namely as a goal, a means, or an obstacle. First, politics can define certain predominantly legal values or institutions as its goal. In this case the political understanding of these values or institutions becomes almost identical to an authentic legal understanding of the same values or institutions. Second, politics can comprehend the law merely as a means for the fulfillment of certain political interests. In this case politics is neutral in its attitude toward the law. Finally, politics can interpret law as an obstacle on the way toward the realization of certain political goals. In this situation either politics prevails over law, or vice versa. In the first case politics effectuates its solutions at the expense of the rule of law, while in the second case the autonomy of law is preserved through the decisions of the highest courts or by other actions taken by lawyers, intellectuals, associations, organizations, and the public in order to stop illicit acts of political actors. Law and politics create their own particular pictures of reality. Sometimes those pictures overlap, sometimes they differ. Yet, there is something that the law should never include in its sphere; namely, the differentiation of adversaries according to a purely political criterion. This leads to a strict separation between "ours" and "yours", or, in its most radical expression, to a strict separation between friend and enemy. When the latter occurs, politics inevitably prevails over the law, and reduces or damages the autonomy of the rule of law.

Ø Hohfeld’s scheme of rights

The words commonly used to describe legal relations frequently convey multiple inconsistentmeanings. The confusion that results from this inherent weakness in the language of the law has produced many attempts to reduce that language to terms that suggest a single idea. A most remarkable theory of reduction was expressed in Professor Hohfeld's formulation of a logical system of language based on fundamental legal conceptions .Hohfeld ‟s theory was intended, to “aid in the understanding and solution to practical, everyday problems of the law”. Hohfeld claimed to have identified the eight fundamental legal conceptions, and as such to have provided a technical apparatus for legal analysis: the atomic elements into which all legal material can be reduced. Those fundamental legal conceptions are sui generis, which means that all the attempts aimed at creating formal definition are not only dissatisfying but also useless. The most satisfying approach is to lay down various Jural relations in a scheme of “opposites” and “correlatives” and, then, to proceed with stating examples of their individual scope and application in concrete cases. Hohfeld did notonly correct minor technical mistakes but he also offered a radical critique of previous concepts of legal rights and liberties.

The Hohfeld's analysis can be said to have rather little impact. This may be true, it has to beadmitted however that the strength of the conclusion is undiminished. In the final analysis Professor Hohfeld's contribution to the language of rights continues to be highly valued. Drawing public attention to the importance of appropriate terminology in rights cannot be ignored even if the conclusions as to what is or is not appropriate are not the same as he recommends

ØGood governance

There is no single and exhaustive definition of “good governance,” nor is there a delimitation of its scope, that commands universal acceptance. The term is used with great flexibility; this is an advantage, but also a source of some difficulty at the operational level. Depending on the context and the overriding objective sought, good governance has been said at various times to encompass: full respect of human rights, the rule of law, effective participation, multi-actor partnerships, political pluralism, transparent and accountable processes and institutions, an efficient and effective public sector, legitimacy, access to knowledge, information and education, political empowerment of people, equity, sustainability, and attitudes and values that foster responsibility, solidarity and tolerance.

However, there is a significant degree of consensus that good governance relates to political and institutional processes and outcomes that are deemed necessary to achieve the goals of development. It has been said that good governance is the process whereby public institutions conduct public affairs, manage public resources and guarantee the realization of human rights in a manner essentially free of abuse and corruption, and with due regard for the rule of law. The true test of "good" governance is the degree to which it delivers on the promise of human rights: civil, cultural, economic, political and social rights. The key question is: are the institutions of governance effectively guaranteeing the right to health, adequate housing, sufficient food, quality education, fair justice and personal security?

Key attributes of good governance

Good governance is accountable

Accountability is a fundamental requirement of good governance. Local government has an obligation to report, explain and be answerable for the consequences of decisions it has made on behalf of the community it represents.

Good governance is transparent

People should be able to follow and understand the decision-making process. This means that they will be able to clearly see how and why a decision was made – what information, advice and consultation council considered, and which legislative requirements (when relevant) council followed.

Good governance follows the rule of law

This means that decisions are consistent with relevant legislation or common law and are within the powers of council

Good governance is responsive

Local government should always try to serve the needs of the entire community while balancing competing interests in a timely, appropriate and responsive manner.

Good governance is equitable and inclusive

A community’s wellbeing results from all of its members feeling their interests have been considered by council in the decision-making process. This means that all groups, particularly the most vulnerable, should have opportunities to participate in the process.

Good governance is effective and efficient

Local government should implement decisions and follow processes that make the best use of the available people, resources and time to ensure the best possible results for their community.

Good governance is participatory

Anyone affected by or interested in a decision should have the opportunity to participate in the process for making that decision. This can happen in several ways – community members may be provided with information, asked for their opinion, given the opportunity to make recommendations or, in some cases, be part of the actual decision-making process.

ØState the role of transparency in governance

Transparency in government (both state and local) is one of the most importance key issues. In fact there are many grassroots groups and political leaders from around the country calling for more transparency in government at all levels. So, what exactly is “transparency” and why is it so important? Simply put, government transparency enables YOU, the taxpayer, to easily research and holds your government / elected officials accountable for how they spend YOUR money at all levels of government.

Government transparency means placing all financial and public information online in an easy-to-use, readily understandable system. Such a system allows taxpayers to see clearly how public servants are spending tax money, and gives citizens the ability to hold their elected officials accountable.

Transparency in government is not a new issue. John Adams, second president of the United States, wrote, “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.” In other words, a healthy system of government is an open government that allows all who desire to know to find the information they are seeking.

Freedom of information acts, televised debates and published government audits are great examples of how the federal government has encouraged transparency in the past, but some real changes are needed to modernize transparency efforts. The Internet is the perfect platform for any and all transparency efforts in the modern world, and the high penetration rate of Internet in homes coupled with publically available internet at libraries and coffee shops means nearly every citizen has access to the internet. Transparency adds clarity and accountability to a system, that left unchecked, is prone to corruption. What’s more is that fiscal transparency has been shown to be a precondition to sound economic policy.

So with costs being low, citizens desiring transparency, and with the Internet as a platform, government has no excuse to keep shielding its fiscal business from public scrutiny. Elected officials and governments are public servants and services; they work for YOU and ME the taxpayer.

ØFORMALISM V PRAGMATISM: FEDERAL STRUCTURE OF NEPAL

The word federalism is derived from the word, foedus means treaty of agreement. Treaty of agreement signifies the compulsion of federal state towards their committeemen’s. Federalism is developed against the centreicism concept of power and resources. Unitary form of government is opposite to the federal form of government. Self voluntarism and Constructionsim is two sect of federalism. Self voluntarism signifies that the different independent state self voluntary without any compulsion comes together with agreement for the construction of confederation. It is also called coming together federalism. In this mode of federalism all the state has independent recognition and existence, and also they have right to secession. The countries which have follow this mode of federalism due to many purposes like for the protection, economic benefit; recognition in the world etc. in the later form of federalism signifies the division of one single state into many several provinces and states. Theses modes of federalism don’t include the right to self determination with secession. Because no one state is colony of anyone and having independent existence in the past. So in this concept, internal self determination only prevails. In the former model of federalism all the state has the de facto power while in latter all this state has the dejure power( constitution clearly mention about the rights, duties, responsibility, jurisdiction of the provinces, supremacy of constitution).

Federalism in Nepal has developed to give the pragmatic answer of the specific questions. Federalism in Nepal has emerged as major demand of ethnic and regional activists which had suffered injustice from the long time ago. The debate about federalism was developed previsiously for the different subject’s matters but now a day is changed their shape and debate is extremely politicized. Federalism is not simply the decentralization of political power; it has become a powerful symbol for a wider agenda of inclusion, which encompasses other institutional reforms to guarantee ethnic proportional representation and redefinition of Nepali nationalism to recognize the country’s ethnic and cultural diversity.

The group which had excluded from the state mechanism; they will have enough chance in the federal state. Federalism and proportional representation offer significant opportunity to unravel entrenched patterns of discrimination on the basis of caste, ethnicity, and regional identity. Due to ethnic clash of ethnic groups, the separate politics has started to come in the nations called ethnic based politics. Ethnic based demand for the federal structure is based example of ethnic politics. There are three broad responses critical of current change like unitary to federal. A leftist, secular and pro-republican position perceives identity politics as reactionary and federalism as risk to Nepal’s national unity. The introduction of federalism in Nepal has two basic reasons. In the one hand federalism is advocated to help end marginalization of disadvantages groups and regions by improving self rule and representation (shared rule). Maoists are in favor of federalism in order to bring an end the marginalization. On the other hand federalism is advocated to promote democratization and foster development for all throughout the country through direct participation. More participation of local people in the government an development activists provides strong ground to flourish the democratic spirit and norm and this is possible in Nepal only when the federal structure has would created in Nepal because long form of centralized government has already given lesson to Nepalese people. Still certain parties which are closely link with the royal palace are arguing federalism can destroy unity of Nepalese people. They are opposing the demand of federalism. What sorts of unity are they talking are not clear? If they really want o make strong unity among Nepalese people then what they had done in 240 years of Monarchy. They again want to exploit the Nepalese people.

The basis of federalism in Nepal is not clear. Different political parties are presenting their ideas without linking and thinking about whether particular basis id feasible or not. The federalism in Nepal is arising just like the ideological flavor. No one party is presenting their views regarding federal structure with pragmatic solution. Federalism is not itself the solution but it is the way for the solution. The base argued by the political parties doesn’t seem any relevance to existence problem of Nepal. Among 200 nations of the world more than 26 countries has follow the federal structure. The countries which have federal structure have not followed the single basis. So within the one country, there may be several bases.

The countries which had divided their federal structure only on the one basis failed to exist like Sudan, Ethiopia, Belgium, and Spain. Nowadays Nigeria is going to change itself unitary from the federal one. The basis of federalism in Nepal should be accordance with the land of Nepal not with the others. The basis should never copy form the other states. In Nepal, who are opposing ethnic base federal structure are arguing that this basis will ultimately invite civil war in the country which seems pragmatic. Because Nepal has more than 105 ethnic groups and no one ethnic group has absolute majority in ethic purposed federal structure. One group has to live under the others provinces and there is maximum possibility of exploitation. Problem will not solve rather it make more complex. So another basis for federal structure should search. The all ethnic groups are living from North to South and east to West. The people who are supporting ethnic base federal structure can argue that 75% of Nepalese people has lost their identity so by creating ethnic based federal structure will bring harmony but they are ignoring the fact that where they will form state like “ Kusunda” having 164 no of population and “ Kusbadia” having 552 number of population according to 2058 census.

The debate about federalism and pragmatism in the field of Jurisprudence to provide the answer to the specific questions is the debate of Imperative school of thought and Functional school of thought. It is the debate of 18^th century jurists of Analytical school and 19^th century jurists of Pragmatist school of thought. There is common question for both the school like “is there anything beyond the letter which has mentioned in the books?’’. Formalistic school strongly says, “NO” while pragmatist says, “YES”. So it can be said that it is debate of YES and NO for the particular issues. If we apply this conception in federalism in Nepal, we can say that Nepalese political parties are more formalistic than the pragmatist. There should be mixing up word and action while taking about federalism .The many countries are facing still problems because they has adopt the federal structure and which we are going to adopt. All the pros and cons and also strong foundation for federalism should discuss well with pragmatic way. We have to understand that federalism never solves the problems but it make more complex. The huge diversity of Nepal will integrate under federal structure or not, what the future will be of federal structure, what are the contextual bases for federal structure in Nepal like dozen of questions shall have to solve. There is much excellent and beautiful word in relation of federalism under the manifesto of political parties but whether they can implement or not is another question. Only incorporation of such word doesn’t show any importance. We have to see minor to minor problem in relation of federalism. Even, the countries which haven’t adopted the federal structure are more developed than the one who had adopted the federal structure. So adopting federal structure is not that much great work but making it more durability is key concerns.

Hence, federalism in Nepal must be debate of formalism and pragmatism rather than the political spirit.

ØIdeology of law

If law is a system of enforceable rules governing social relations and legislated by a political system, it might seem obvious that law is connected to ideology. Ideology refers, in a general sense, to a system of political ideas, and law and politics seem inextricably intertwined. Just as ideologies are dotted across the political spectrum, so too are legal systems. Thus we speak of both legal systems and ideologies as liberal, fascist, communist, and so on, and most people probably assume that a law is the legal expression of a political ideology. One would expect the practice and activity of law to be shaped by people's political beliefs, so law might seem to emanate from ideology in a straightforward and uncontroversial way.

However, the connection between law and ideology is both complex and contentious. This is because of the diversity of definitions of ideology, and the various ways in which ideology might be related to law. Moreover, whilst the observation about law's link with ideology might seem a sociological commonplace, the link between law and ideology is more often made in a critical spirit, in order to impugn law.

At issue is an understanding of ideology as a source of manipulation. Law as ideology directs its subjects in ways that are not transparent to the subjects themselves; law, on this view, cloaks power. The ideal of law, in contrast, involves a set of institutions that regulate or restrain power with reference to norms of justice. Thus the presence of the ideological in law must, in some sense, compromise law's integrity. Not only is the view of law as ideology at odds with a lot of mainstream thinking about law, it seems difficult to reconcile with the central philosophical positions on the nature of law, e.g. a positivist conception of law as a set of formal rules, or a natural law conception where law is identified with moral principles.

ØPolitical Criminal Nexus

A political-criminal nexus, the concentration and fusion of political and criminal power, is increasingly reaching the highest levels of many nation-states. Organized crime groups develop collaborative relationships with state authorities in order to access and exploit the political, economic, and social apparatus of the state. To increase the security of their operations, they also attempt to develop arrangements with local and national political and legal authorities. For their part, state authorities seek cooperative relationships with criminal elements for various reasons, such as personal benefits, securing votes and money, and controlling enemies. This issue of "Trends in Organized Crime" presents preliminary reports of the first in-depth collaborative cross- national research study of the political-criminal nexus.

In the era of modernization and industrialization, it's indeed a story state of affair to see the rise of such a nexus which is an irony to the democracy of our country. The nexus between Politicians and Criminal elements and the proliferation of criminal gangs under political patronage has come before the eyes of people time and again. Lack of seriousness to tackle this menace has been displayed by the Government of India in nominating Union Home Secretary as the Chairman of the nodal agency and the chiefs of Intelligence agencies as members. Politicians, devoid of a record of service, sacrifice and a mass base, need money and muscle power to keep their positions of power and to bludgeon their constituency into submission. Criminal elements thrive on wrongdoings and they need someone to keep the police away from their back and heels. They also need the co-operation of Bureaucracy to regularize their illegal activities. Personnel of Police and Bureaucracy need political patronage to have comfortable postings and smooth advancement in career. As a result of this, a symbiotic relationship develops between these three. Organized crime is opposed to all values cherished by a liberal Democracy. Its activities deny the basic Human Rights to the “have not's” and undermines the principle of rule of law and equality before law. It vitiates the electoral process by denying the opportunities to many to exercise their franchise freely. It undermines the rights of women, children, labor and others.

The number of political parties in India has been phenomenally increasing. The mushroom growth of political parties is not the result of improvement in political standard; nor is it because more qualified and service-minded persons are entering the field of politics, determined to serve the country and its people. In all political parties, the rowdies are given red-carpeted welcome; because their ‘services' are needed to these parties frequently for carrying on unlawful activities during thebandhs,strikes, rallies etc., organized by them. When such criminals become political leaders, they seek to achieve whatever they want without caring for rules and regulations; they would not hesitate to adopt criminal methods for attaining their goals; whether it is winning an election or elimination of rivals. For these hard core criminals, the offences like threatening officials, kidnapping and even murder do not appear bad.

The recent issue of the infamous Radia tapes shows us a clear-cut picture of the nexus between the politicians, industrialists and bureaucrats. Even though there is a claim of right to privacy being violated but such conversations do not fall under a private sphere when it affects the public domain. No doubt this situation has raised some prickly issues for the courts and the media as the rule of law stands to be violated. These people must know where privacy ends and public interest begins. Top Journalists, politicians and other powerbrokers are found to be in such a nexus.

The politicians are thriving today on the basis of muscle power provided by criminals. The common people who constitute the voters are in most cases too reluctant to take measures that would curtail the criminal activities. Once the political aspect joins the criminal elements the nexus becomes extremely dangerous. Many of politicians chose muscle power to gain vote bank in the country, and they apply the assumption that, if we are unable to bring faith in the community then we can generate fear or threat to get the power in the form of election.

Independence has taken place through a two-stage process. The first stage was the corrupting of the institutions and the second stage was the institutionalization of corruption. As we look at the corruption scene today, we find that we have reached this stage because the corrupting of the institutions in turn has finally led to the institutionalization of corruption. The failure to deal with corruption has bred contempt for the law. When there is contempt for the law and this is combined with the criminalization of politics, corruption flourishes. The police-politician-criminal nexus can embolden the criminal elements. Their activities can create an environment of lawlessness, where influential and rich people violate the law with impunity. The police are not the only component of the criminal justice system that has suffered because of this nexus. In fact, the entire criminal justice system is under strain. Not all crimes are being registered and those registered are not being properly investigated; and even out of those charge-sheeted, very few are ending in conviction.

Ø Positive contributions and limitation of the Realist School of Jurisprudence

The realism is the anti-thesis of idealism. Some jurists refuse to accept the realist school as a separate school of jurisprudence. American realism is a combination of the analytical positivism and sociological approaches. It is positivist in that it first considers the law as it is. On the other hand, the law as it stands is the product of many factors. In as much as the realists are interested in sociological and other factors that influence the law. Their concern, however, law rather than society. Realists don’t give any importance to laws enacted by legislature. And they uphold only judge-made law as genuine law. A great role of judges’ understanding about law, society and also their psychology affect any judgment given by them. At the same time, in a same case applying same law two different judges give the different judgments.

Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case. In strict sense, realists define law as generalized prediction of what the courts will do. Realists believe that certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision. It presupposes that law is intimately connected with the society and since the society changes faster than law so there can never be certainty about law. They do not support formal, logical and conceptual approach to law. The realist school evaluates any part of law in terms of its effect. Jerome Frank has stated, “Law is what the court has decided in respect of any particular set of facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will decide and this cannot be treated as law unless the Court so decides by its judicial pronouncement.” The judges’ decisions are the outcome of his entire life history.”

MEANING AND DEFINITION OF THE AMERICAN REALISM:

The insights of legal realism are mainly negative, revealing a deep skepticism about the model of rules, about any general and abstract theory of the law. Realism was not consolidated into a definite, coherent theoretical system; it can at best be described as a ‘movement’ or ‘historical phenomenon’ rather than a ‘school of thought’. American Legal Realism expressed a set of sometimes self-contradictory tendencies rather than a clear body of tenets or a rigorous set of methodologies or propositions about legal theory.

According to Roscoe Pound, “Realism is the accurate recording of things as they are, as contrasted with things as they are imagined to be or wished to be or as one feels they ought to be”.

According to Friedman, “Realist school prefers to evaluate any part of law in terms of its effects”.

BASIC FEATURES OF REALIST SCHOOL:

There are certain principal features of realistic jurisprudence as outlined by Karl Llewellyn and Prof. Good hart:

1. There has to be a conception of law in flux and of the judicial creation of law.

2. Law is a means to social ends; and every part of it has constantly to be examined for its purpose and effects, and to be judged in the light of both and their relation to each other.

3. Society changes faster than law and so there is a constant need to examine how law meets contemporary social problems.

4. Realists believe that there can be no certainty about law and its predictability depends upon the set of facts which are before the court for decision.

5. They do not support formal, logical and conceptual approach to law because the Court while deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’ ground.

6. They lay greater stress on psychological approach to the proper understanding of law as it is concerned with human behavior and convictions of the lawyers and judges.

7. Realists are opposed to the value of legal terminology, for they consider it as tacit method of suppressing uncertainty of law.

8. The realists introduced studies of case law from the point of view which distinguished between rationalization by a judge in conventional legal terminology of a decision already reached and the motivations behind the decisions itself.

9. The realists also study the different results reached by courts within the framework of the same rule or concept in relation to variations in the facts of the cases, and the extent to which courts are influenced in their application of rules by the procedural machinery which exists for the administration of the law.

CRITICISM OF AMERICAN REALIST SCHOOL:

1. The realist approach to jurisprudence has evoked criticism from many quarters. The critics allege that the exponents of realist school have completely overlooked the importance of rules and legal principles and treated law as an assemblage of unconnected court decisions. Their perception of law rests upon the subjective fantasies and life experience of the judge who is deciding the case or dispute. Therefore there can’t be certainty and definiteness about the law. This is indeed overestimating the role of judges in formulation of the laws. Undoubtedly, judges do contribute to law-making to a certain extent but it cannot be forgotten that their main function is to interpret the law.

2. Another criticism so often advanced against realists is that they seem to have totally neglected that part of law which never comes before the court. Therefore it is erroneous to think that law evolves and develops only through court decisions. In fact a great part of the law enacted by legislature never comes before the court.

3. The supporters of realist theory undermine the authority of the precedent and argue that case law is often made ‘in haste’, without regard to wider implications. The courts generally give decisions on the spot and only rarely take time for consideration. They have to rely on the evidence and arguments presented to them in court, and do not have access to wider evidence such as statistical data, economic forecasts, public opinion, survey etc.

4. Realist school has exaggerated the role of human factor in judicial decisions. It is not correct to say that judicial pronouncements are the outcome of personality and behavior of the judges. There are a variety of other factors as well which has to take into consideration while reaching his decisions.

5. The realist theory is confined to local judicial setting of United States and has no universal application in other parts of the world like other schools of jurisprudence.

REALISM IN THE INDIAN CONTEXT:

The legal philosophy of the realist school has not been accepted in the sub-continent for the obvious reason that the texture of Indian social life is different from that of the American life-style. The recent trends in the public interest litigation widened the scope of judicial activism to a great extent but the judges have to formulate their decisions when the limits of constitutional frame of the law by using their interpretative skill. In other words the judges in India cannot ignore the existing legislative statutes and enactments. They have to confine their judicial activism within the limits of the statutory law. They are free to overrule the previous decisions on the ground of inconsistency, incompatibility, vagueness, change of conditions etc. Thus the Indian legal system, though endows the judges with extensive judicial discretion, does not make them omnipotent in the matter of formulation of law. The legislative statutes and enactments, precedents and the rules of equity, justice and good conscience are indispensable part of the judicial system in India. The constitution of India itself provides ample scope for the judges to take into consideration the hard realities of socio-economic and cultural life of the Indian people while dispensing social and economic justice to them.

In short, it may be reiterated that though Indian jurisprudence does not formally subscribe to the realist’s legal philosophy, it does lay great stress on the functional aspect of the law and relates law to the realities of social life. Again, it refuses to accept the realist’s view that Judge-made law is the only real ‘law’ and other laws are worthless, but at the same time it does not completely ignore the role of Judges and the lawyers in shaping the law. Thus it would be correct to say that the Indian legal system has developed on the pattern of sociological jurisprudence as evinced by the post-independence socio-economic legislation but it considers doctrine of realism alien to Indian society which has a different life-style and social milieu. Undoubtedly, the Indian judges do have the liberty of interpreting law in its contextual and social setting keeping in view the social, economic, political, cultural, historical and geographical variations of the Indian society. The power of review and doctrine of overruling its earlier decisions has enabled the Supreme Court to effectuate the socio-economic contents of the constitutional mandate through the process of judicial interpretation and use of its inherent powers. Thus the Apex Court in Bengal Immunity Case overruled its earlier decision in Dwarkadas v. Sholapur Spinning Co. and observed that “the Court is bound to obey the Constitution rather than any decision of the Court, if the decision is shown to have been mistaken”. Justifying its stand, the Court further observed that where a constitutional decision affects the lives and property of the public and where the Court finds that its earlier decision is manifestly wrong and injurious to the public interest, it should not hesitate to overrule the same.

Adopting the same approach Justice B.B. Gajendragadkar in Keshav Mills v. Income Tax Commissioner observed that Supreme Court has inherent jurisdiction to reconsider and revise its earlier decision if it does not serve the interest of the public good.

There are a number of cases where the rules or laws are made by the judiciary. Some of the following cases where Supreme Court played the role of law-maker are given as below:

In Hussainara Khatoon v. State of Bihar, the Supreme Court has held that speedy trial is an essential and integral part of the fundamental right to life and liberty enshrined in Article 21. In Bihar a number of under trial prisoners were kept in various jails for several years without trial. The court ordered that all such prisoners whose names were submitted to the court should be released forthwith. Since speedy trial is being held to be a fundamental right guaranteed under Article 21 of the Constitution of India. The Supreme Court considered its constitutional duty to enforce this right of the accused person.

In Shri Ram Food and Fertilizer case, the Supreme Court directed the company, manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighborhood, to take all necessary safety measures before reopening the plant.

In Ganga Water Pollution case, the petitioner sought the direction from the Supreme Court restraining the respondents from letting out trade effluents into the river Ganga till such time they put up necessary treatment plants for treating the trade effluents in order to arrest the pollution of water in the said river.

In Parmanand Katara v. Union of India, the Supreme Court has held that it is a paramount obligation of every medical (private or government) to give medical aid to every injured citizen brought for treatment immediately without waiting for procedural formalities to be completed in order to avoid negligent death.

In M.C. Mehta v. State of Tamil Nadu, it has been held that the children cannot be employed in match factories which are directly connected with the manufacturing process as it is a hazardous employment within the meaning of Employment of Children Act 1938. There can, however, be employment packing process but it should be done in are away from the place of manufacture to avoid exposure to accident. Every children must be insured for a sum of Rs. 15,000/- and premium to be paid by employer as a condition of service.

Dealing with a case pertaining to water pollution in case of Vellore Citizens Welfare Forum v. Union of India, the Supreme Court directed 162 tanneries in Tamil Nadu to be closed because these were polluting the air and the water around the area where they were operating and the water had been unworthy for drinking.

M.C. Mehta v. Union of India, with a view to preserve environment and control pollution within the vicinity of tourist resorts of Badkhal and Surajkund the court directed the stoppage of mining activities within two kilometer radius of these two tourist resorts.

In a significant judgment in Vishakha v. State of Rajasthan, the Supreme Court has laid down exhaustive guidelines for preventive sexual harassment of working women in place of their work until any legislation is enacted for this purpose.

CONCLUSION

As we know that American realism is a combination of the analytical positivism and sociological approaches. Realists define law as generalized prediction of what the courts will do. Realists believe that certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision. Legal realism emerged as an anti-formalist and empirically oriented response to and rejection of the legal formalism. Legal realism operates on a premise that is adhered to by most laymen and many who have legal training: that "the law," whatever that may be, is concerned with and is intrinsically tied to the real-world outcomes of particular cases. Proponents of legal realism say it is not concerned with what the law ‘should’ or ‘ought’ to be, but that legal realism simply seeks to describe what the law is. Proponents of legal formalism disagree, saying that ‘law’ is what is commanded by a law-giver, that judges are not law-givers, and that what judges do, while it might belong to the field of law, is not ‘law’ but legal practice. American realism jolted legal positivism out of its complacency by questioning widely held assumptions about the nature of rules. Realism prompted the rethink of legal positivism that was brilliantly undertaken by scholars like Hart and Raz. It forced positivists to distance themselves from formalism and to reconsider the nature of legal language and judicial discretion.

American Legal Realism is often remembered for its challenge to the Classical legal claim that orthodox legal institutions provided an autonomous and self-executing system of legal discourse untainted by politics. Unlike Classical, American Legal Realism worked vigorously to depict the institution of law without denying or distorting a picture of sharp moral, political, and social conflict. The most important legacy of American Legal Realism is its challenge to the Classical legal claim that legal reasoning was separate and autonomous from moral and political discourse.

ØMerits and weaknesses of Kelsen's pure theory of law

The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881–1973) (see the bibliographical note). Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this purity serves as its “basic methodological principle”.

The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality and the normatively of law, without an attempt to reduce jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world (PT1, 10). Suppose, for example, that a new law is enacted by the California legislature. How is it done? Presumably, some people gather in a hall, debate the issue, eventually raise their hands in response to the question of whether they approve a certain document or not, count the number of people who say “yes”, and then promulgate a string of words, etc. Now, of course, the actions and events described here are not the law. To say that the description is of the enactment of a new law is to interpret these actions and events in a certain way. But then, of course, the question is why certain acts or events have such a legal meaning and others don’t?

Kelsen’s answer to this question is surprisingly simple: an act or an event gains its legal-normative meaning by another legal norm that confers this normative meaning on it. An act can create or modify the law if it is created in accordance with another, “higher” legal norm that authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid if and only if it has been created in accord with yet another, “higher” norm that authorizes its enactment in that way. In other words: it is the law in the United States that the California legislature can enact certain types of laws. But what makes this the law? The California Constitution confers this power on the state legislature to enact laws within certain prescribed boundaries of content and jurisdiction. But then what makes the California Constitution legally valid? The answer is that the legal validity of the Constitution of California derives from an authorization granted by the US Constitution. What makes the US Constitution legally valid? Surely, not the fact that the US Constitution proclaims itself to be “the supreme law of the land”. Any document can say that, but only the particular document of the US Constitution is actually the supreme law in the United States.

ØDworkin and Interpretivism

Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law. The main claims of interpretivism are that

· Law is not a set of given data, conventions or physical facts, but what lawyers aim to construct or obtain in their practice. This marks a first difference between interpretivism and legal positivism. But the refusal that law be a set of given entities opposes interpretivism to natural law too.

· There is no separation between law and morality, although there are differences. This is not in accordance with the main claim of legal positivism.

· Law is not immanent in nature nor do legal values and principles exist independently and outside of the legal practice itself. This is the opposite of the main claim of natural law theory.

The recent passing of Ronald Dworkin provides occasion to reconsider his long and productive career as a legal philosopher. One school of thought that has been closely associated with Dworkin’s name is interpretivism.

Interpretivism about the nature of law is the view that legal rights and duties are determined by the scheme of principle that provides the best justification of certain political practices of a community: a scheme identifiable through an interpretation of the practices that is sensitive both to the facts of the practices and to the values or principles that the practices serve.

Interpretivism has been developed by Ronald Dworkin in a number of publications over the last 30 years or so (see the works of Dworkin cited in the Bibliography). Interpretivism as developed by Dworkin includes the claim that interpretation is sensitive to values in the way just explained, and that it is fundamental to the nature of law. Many theorists accept that, given the law, interpretation that is sensitive to values is necessarily employed in its application (e.g. Brink 2001). In this entry, we shall be concerned exclusively with interpretivism as a theory about the nature of law, and so we shall not consider such views (except as possible misunderstandings of interpretivism). We shall focus on the explanation of the position defended by Dworkin (though not necessarily on his way of defending it), and briefly consider some alternatives in respect of the normative character of legal interpretation.

The arrival of interpretivism in the scene, previously dominated by positivist and natural law theories about the nature of law, has stimulated a great deal of debate.

Ø Environmental Jurisprudence

Environmental jurisprudence has drawn its knowledge base from different disciplines of studies like basic sciences, earth science and Common Law jurisprudence. Study of this discipline is concerned more with enforcement ‘rights’, for environmental pollution may affect individuals as well as the public at large. The impact of pollution may be on the lives of people in the place of occurrence as well as in a larger geographical territory. Further, the impact might be even larger on generations to come. Therefore, if pollution is termed either as a wrong or crime, it requires different understanding of law because of its very nature, wherein the study of environmental jurisprudence gains importance

A landmark judgment for environmental jurisprudence

The boom in India’s economic growth has resulted in mass urbanization on a scale rarely witnessed in the history of mankind. The population of several Tier I and II cities has grown exponentially in the last two decades as millions of people seek better economic opportunities. However, this economic growth has come at a tremendous cost to the quality of human life as unplanned urban developments have mushroomed, giving rise to pollution, congestion and diseases that give rise to living conditions that would be termed “miserable” by western standards. Thus, it comes as no surprise that Indian cities figure at the bottom of any quality of life survey done at the international level.

The prime reason for this dismal state of affairs is visible everywhere—illegal construction. Developers blatantly violate development control regulations that stipulate mandatory open spaces, recreation grounds, parking and fire safety. Unscrupulous municipal officials look the other way and consequently, the right to life of citizens gets compromised. To make matters worse, enforcement of development control regulations was considered a municipal matter and not as one falling within the scope of the term “environment”.

On September 3 this year, the principal bench of the National Green Tribunal (NGT) at New Delhi passed a landmark judgment that, for the first time, brought important principles of town planning within the scope and jurisdiction of the NGT. In its judgment in the matter of Sunil Kumar Chugh v. Secretary, Ministry of Environment and Forests, New Delhi, Appeal No. 66 of 2014, the NGT held that open spaces, recreational grounds and adequate parking facilities in buildings had an important bearing on the right to life of people.

The appellants, Sunil Kumar Chugh and Ravinder Khosla, were residents of the slum redevelopment project being carried on by the developer, M/s Priyali Builders at Antop Hill, Mumbai. They filed an appeal challenging the Environmental Clearance (EC) issued to the developer on March 25, 2014 as illegal and prayed that the same be quashed.

In their appeal, the appellants stated that the builder had violated the Environmental Impact Assessment Notification, 2006 by starting construction without EC, way back in 2009. For five years, the developer continued construction without EC. The State Environmental Impact Assessment Authority (SEIAA) of Maharashtra ignored this blatant violation and blindly granted EC to the builder.

It was further averred by the appellants that the developer did not provide any recreation ground to the residents. Further, he did not provide any parking spaces for the residents of the rehabilitation tenements, as a result of which, they were forced to park on the street. This severely prejudiced their right to life under Article 21 of the Constitution of India.

The case was heard by the principal bench at New Delhi, comprising Justices Swatanter Kumar and U D Salvi, along with expert members D K Agrawal and M A Yusuf. In its judgment, the bench held that the developer had violated the EIA Notification, 2006 and the Environment Protection Act, 1986 by commencing construction without prior EC. Further, by not providing adequate recreation grounds, the developer had severely prejudiced the right to life of the appellants. Consequently, the bench held the developer liable for violating the law and imposed a fine of Rs. 3 crore to be paid into the environmental relief fund maintained under the Public Liability Insurance Act, 1991. Further, taking note of the fact that the developer had provided deficient recreation grounds to the residents, the court directed that a further sum of Rs. 32, 63,600 be paid to the Maharashtra Pollution Control Board (MPCB) for the deficient recreational area in the building. The approved plan of the building was quashed and the builder was directed to submit a fresh plan that would contain adequate parking for all residents of the building and address the shortfalls.

During the court proceedings, the developer had claimed that prior EC was not required as the “FSI Area” (Floor Space Index or Floor Area Ratio) of the project was less than 20,000 square metres, the prescribed statutory limit. He claimed that the lift lobby and staircase area were exempt from the computation of built-up area under the EIA Notification. The NGT strongly rejected this argument, stating that the term “built-up area” includes the entire construction area, saleable and non-saleable. It further held that the 2011 amendment to the EIA Notification that clarified the term “built-up area” was clarificatory in nature and would have a retrospective effect from 2006 itself.

The booming construction industry in Mumbai has resulted in repeated violations of environmental norms that severely prejudice the right to life of the residents. Innumerable projects commence construction without prior EC. Ex-post-facto clearances have been granted arbitrarily, without imposing any penalty on the developer. The landmark judgment of the NGT in the case of Sunil Kumar Chugh v. Ministry of Environment and Forests, New Delhi & Others (Appeal No. 66 of 2014) will set a strong precedent in penalising violators and quashing the illegal permissions granted to them. Further, builders will not be able to segregate FSI areas from non-FSI areas and pass off the same as built-up area. This ruling is indeed an important step forward in the effort to save India’s cities from the degrading effects of illegal construction and haphazard urbanisation, which have so far continued unabated.

ØFeminist Jurisprudence in Annapurna Rana’s Case

To be very specific, the Nepalese Judiciary, aftermath of promulgation of the Constitution of the Kingdom of Nepal 2047, has played vital role to protect and promote social justice in relation to women. Gender equality and gender justice are the pillars on which the Supreme Court has pronounced various land mark decisions. Few decisions delivered through the Supreme Court, especially in the writ petitions and Public Interest Litigations are really progressive and their close nexus with feminist jurisprudence can be easily traced out. It is likely to be more gender friendly judgment to be rendered from the courts in the days to come as the whole set up is advancing towards 'a new horizon of freedom.'
Nepal has good enough case laws relating to gender justice and justice with feminist components. For the purpose of the paper, the cases related to property and privacy which are really progressive, in other word, radical, are discussed as follows:

Annapurna Rana v. Kathmandu District Court and others:-A woman living with a man and maintaining a physical relationship with him is not necessarily his wife, the Supreme Court of Nepal said in an elaborate ruling. In Annapurna Rana v. Kathmandu District Court and Others, petitioner challenged a court order compelling her to undergo a “virginity test.” The Supreme Court invalidated the order as a violation of petitioner’s constitutional right to privacy, recognizing the right to privacy over one’s own body and reproductive organs as an “inviolable” right under the constitution.

This judgment has cropped up some fundamental legal issues and they are:

i) The Privacy Discourse
ii) Marriage, family system and the law
iii) Control over sexuality
iv) Effect on rule of evidence
v) Social empowerment of women

Interestingly, the judgment has been severely criticized by both feminists and non feminists, especially in the respect of marital status and matrimonial relationship. More surprisingly, the court has recognized cohabitation and unleashed control over sexuality as the decision itself stated that mere sexual relationship does not create any change on the legal status of a woman or girl and even, a boy friend and girl friend may enjoy biological fulfillment and even procure children, which ipso facto does not establish matrimonial relationship between them. The main pitfall of this decision is that it is ambiguous. It is still a debate that such type of decision actually provides a fertile ground for feminism and feminist jurisprudence or just encourages male sexual outrage, sexual abuse, violence and exploitation against women.

ØCognitivism vs. Non-cognitivism

Cognitivism is the denial of non-cognitivism. Thus it holds that moral statements do express beliefs and that they are apt for truth and falsity. But cognitivism need not be a species of realism since a cognitivist can be an error theorist and think all moral statements false. Still, moral realists are cognitivists insofar as they think moral statements are apt for robust truth and falsity and that many of them are in fact true.

Non-cognitivism is a variety of irrealism about ethics with a number of influential variants. Non-cognitivists agree with error theorists that there are no moral properties or moral facts. But rather than thinking that this makes moral statements false, non-cognitivists claim that moral statements are not in the business of predicating properties or making statements which could be true or false in any substantial sense. Roughly put, non-cognitivists think that moral statements have no substantial truth conditions. Furthermore, according to non-cognitivists, when people utter moral sentences they are not typically expressing states of mind which are beliefs or which are cognitive in the way that beliefs are. Rather they are expressing non-cognitive attitudes more similar to desires, approval or disapproval.

Cognitivism and non-cognitivism are theories about the content of moral statements. Cognitivists think moral claims like "it is wrong to murder babies" are truth-apt: these claims can be true or false, like other truth apt claims ("the cat is on the mat"). Non-cognitivists think that moral claims are not truth apt. They are not, strictly speaking, true or false. What precisely they end up being is a matter of dispute among various non-cognitivists, but options include expressions of taste ("yuck, killing babies"), reports of approval ("I disapprove of killing babies"), and all sorts of other things.

ØRichard Posner

Richard Allen Posner (born January 11, 1939) is an American jurist and economist, who is a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School. He is a leading figure in the field of law and economics, and was identified by The Journal of Legal Studies as the most cited legal scholar of the 20th century.

Posner is known for his scholarly range and for writing on topics outside of his primary field, law. Posner is known for his sharp, irreverent style. In his various writings and books, he has deprecated animal rights, feminism, drug prohibition, gay marriage (though he has reversed positions and now favors gay marriage), Keynesian economics, and academic moral philosophy, among other subjects.

Posner is the author of nearly 40 books on jurisprudence, economics, and several other topics, including Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Sex and Reason, Law, Pragmatism and Democracy, and The Crisis of Capitalist Democracy. Posner has generally been identified as being politically conservative; however, in recent years he has distanced himself from the positions of the Republican partyauthoring more liberal rulings involving same-sex marriage and abortion. In A Failure of Capitalism: the Crisis of 08 ‘ and the Descent into Depression, he has written that the 2008 financial crisis has caused him to question the rational-choice, laissez faire economic model that lies at the heart of his Law and Economics theory.

ØPolitical pluralism and Nepal

Classical pluralism is the view that politics and decision making are located mostly in the framework of government, but that many non-governmental groups use their resources to exert influence. The central question for classical pluralism is how power and influence are distributed in a political process. Groups of individuals try to maximize their interests. Lines of conflict are multiple and shifting as power is a continuous bargaining process between competing groups. There may be inequalities but they tend to be distributed and evened out by the various forms and distributions of resources throughout a population. Any change under this view will be slow and incremental, as groups have different interests and may act as "veto groups" to destroy legislation. The existence of diverse and competing interests is the basis for a democratic equilibrium, and is crucial for the obtaining of goals by individuals. A polyarchy—a situation of open competition for electoral support within a significant part of the adult population—ensures competition of group interests and relative equality. Pluralists stress civil rights, such as freedom of expression and organization, and an electoral system with at least two parties. On the other hand, since the participants in this process constitute only a tiny fraction of the populace, the public acts mainly as bystanders. This is not necessarily undesirable for two reasons: (1) it may be representative of population content with the political happenings, or (2) political issues require continuous and expert attention, which the average citizen may not have.

ØClinical Law

The College of Law's Clinical Law Programs reflect the richness and diversity of modern law practice and the College of Law's commitment to clinical education. The clinic operates like a law firm within the walls of the Boyd Law Building, offering students the opportunity to put their legal skills to use in a variety of practice areas and venues.

Student intern’s works on cases supervised by full-time faculty members, and have primary responsibility for the representation of their clients at all stages of the legal process, including interviewing and counseling, negotiation, fact investigation, depositions, drafting and briefing, and courtroom appearances. Most interns each semester have an opportunity to argue cases before various state and federal trial or appellate courts, or before administrative agencies. Students also provide basic estate planning, document-drafting and other transactional services to clients. Some projects involve interns partnering with grassroots organizations, non-profits, businesses, and public officials to solve recurring and systemic problems that cannot be adequately addressed through litigation or traditional legal methods. Practice areas include consumer rights, criminal defense, disability rights and policy, domestic violence, immigration, international human rights, juvenile court matters, and workers' rights.

Ø Poverty alleviation v. Bribery elimination

Poverty cannot be completely eradicated, as it largely caused by human factors. Over the past years there has been a lot of Poverty Alleviation Programs designed to break the cycle of poverty in many households and communities in the world. The result is remarkable, but there is still a lot to be done.
Poverty alleviation involves the strategic use of tools such as education, economic development, health and income redistribution to improve the livelihoods of the world’s poorest by governments and internationally approved organizations. They also aim at removing social and legal barriers to income growth among the poor. Why are these tools important?

1. Education: - Quality education empowers people to take advantage of opportunities around them. It helps children get knowledge, information and life skills they need to realize their potential. Training teachers, building schools, providing education materials and breaking down that prevent children from accessing education are important features of poverty alleviation programmes.

2. Health, food and water: - Many programs aim at feeding kids at school and providing health services as well. This encourages parents to send the children to school and keep them there. If children have food to eat, and are healthy, they can learn and respond to the needs of the programme.

3. Provision of skills and Training: - The youth and able-to-work in the communities are provided skills to help with farm work or other economic activity, which helps them, earn money to make a living and take care of their families.

4. Income redistribution: - It is important that the government extends its development programs such as roads, bridges, and other economic facilities to rural areas, to make it easy for goods and services and farm produce to move to and from the farming communities.

With a bit of effort in the areas mentioned above, it won’t take long to see real improvements in the living conditions of the community.

Corruption is bad for society and bad for business, posing severe financial, operational and reputational risks. Now more than ever, companies are taking action to implement serious and effective anti-corruption measures and policies within their strategies and operations.

Here are six ways you can promote transparency and accountability in your company:

Commit: Make anti-corruption part of your company culture and operations. Show your employees, customers and suppliers that your company has a zero-tolerance policy on bribery & corruption
Assess: Know your risks and prepare for them. Recognize opportunities to improve your business by improving compliance
Define: Define what success means for your company. Develop goals, strategies and policies and get buy-in from colleagues by clearly showing the importance of these policies
Implement: Make anti-corruption programmes and policies integral throughout your company, including your value chain
Measure: What gets measured gets done. Monitor and measure the impact of your anti-corruption policies to identify what’s working and what still needs work
Communicate: Consistently communicate your progress to stakeholders, always striving for continuous improvement

ØThe doctrine of judicial activism

Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.^[1] The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. Judicial activism is a legal term that refers to court rulings that are partially or fully based on the judge’s political or personal considerations, rather than existing laws. In basic terms, judicial activism occurs when a judge presiding over a case allows his personal or political views to guide his decision when rendering judgment on a case. The topic of judicial activism has been a source of controversy in the U.S. political landscape for some time. To explore this concept, consider the following judicial activism definition.

A good example of the history of judicial activism is the 1954 case of Brown v. Board of Education. In 1951, a group of parents, on behalf of their children, filed a lawsuit against the Board of Education of the City of Topeka, Kansas. The parents had attempted to enroll their African-American children in the closest neighborhood school that year, but were refused enrollment. The suit requested that the school district reverse its policy of racial segregation, in which the district operated separate schools for black and white children. The plaintiffs in the case claimed that racial segregation resulted in inferior facilities, accommodations, and treatment of their children.

The District Court ruled in favor of the Board of Education, based on the prior ruling of Plessy v. Ferguson, a case that upheld state laws requiring segregated transportation on trains. When the parents appealed their case to the U.S. Supreme Court, the Court ruled that segregation of whites and blacks in school was indeed unconstitutional, as it was harmful to black students.

This ruling flew in the face of the legal doctrine of stare decisis, which requires judges to uphold prior rulings of higher courts. This is also referred to as “case precedent.” In this case, rather than relying on the ruling in Plessy v. Ferguson, which was a similar case, the Supreme Court overruled it.

ØConsumers problem in Nepal

The word ‘consumer’ means any person who uses or consumes any types of goods or services from the market. A consumer is any person who engages in the process of spending money and using economic goods and services. In another word, the person who avails the services or purchases the available goods from the market is called a consumer. Therefore, all human being of this world who consumes anything and gets any types of services from the market is known as consumer. In this sense, all of us at one time or another is purchasers of goods and of services, thus we all are consumers.

Consumer protection means safeguarding the interest and rights of the consumers. In other words, it refers to the measures adopted for the protection of consumers from dishonest and unethical malpractices by the business persons and to provide them speedy and effective redress of their grievances. Consumer Protection or Consumerism is a recent and universal phenomenon. It is a social movement and all about the protection of the interests of the consumers.

Philosophy of consumerism or consumer protection emphasizes on the protection, preservation and enhancement of human life. All freedoms and liberties are only for human beings. In every society whether primitive or modern, human life is given high priority. Without human life everything is worthless. The law of consumer protection always focuses on the preservation and protection of life or liberty of the person in the eye of philosophy.

ØLegal dimension of drug consumption

Addiction is not just biological – there is a social dimension to understand. And how a teenager’s friends, favorite hangouts and feelings and moods all interact to influence substance use can say a lot.

ØRight to abortion

Human Rights are those rights, which should be available to every individual without any discrimination of any kind. Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom. The most important right of a Human is the right to life. It is the supreme human right from which no derogation is permitted. It is inalienable. The Article 6(1) of the International Covenant on Civil and Political Rights prohibit the arbitrary deprivation of life. But there are some controversial issues related to this supreme right. One such issue is the question of Right to abortion. Among other rights of women, it is believed that every mother has a right to abortion, it is a universal right. But the rights of the mother are to be balanced with the rights of the unborn.

Earlier the right to abortion was not permitted and it was strongly opposed by the society. The termination of pregnancy was termed to be a murder of the fetus. But due to the change in time and technology, nowadays this right has been legally sanctioned by most of the nations after the famous decision of Roe Vs Wade by the US Supreme Court. But the oppositions are still present and people do believe that it should be legally prohibited.

An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death. This can occur spontaneously as a miscarriage, or be artificially induced through chemical, surgical or other means. Commonly, "abortion" refers to an induced procedure at any point in the pregnancy; medically, it is defined as a miscarriage or induced termination before twenty weeks gestation, which is considered nonviable.

It is a woman's individual rights, right to her life, to her liberty, and to the pursuit of her happiness, that sanctions her right to have an abortion. A women's reproductive and sexual health and shape her reproductive choices. Reproductive rights are internationally recognized as critical both to advancing women's human rights and to promoting development. In recent years, governments from all over the world have acknowledged and pledged to advance reproductive rights to an unprecedented degree. Formal laws and policies are crucial indicators of government commitment to promoting reproductive rights. Each and every woman has an absolute right to have control over her body, most often known as bodily rights.

A woman has a right to abortion if:

# The continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated
# The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman
# The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman
# The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of any existing child of the family of the pregnant woman
# There is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
# Or in emergency, certified by the operating practitioner as immediately necessary:
to save the life of the pregnant woman or to prevent grave permanent injury to the physical or mental health of the pregnant woman.
Case laws in this regard:
D. Rajeswari vs State Of Tamil Nadu And Others

The case, is of an unmarried girl of 18 years who is praying for issue of a direction to terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of three months made her to become mentally ill and the continuance of pregnancy has caused great anguish in her mind, which would result in a grave injury to her mental health, since the pregnancy was caused by rape. The Court granted the permission to terminate the pregnancy.

Ø Mira Dhungana v. HMG Ministry of Law, Justice and Parliamentary Affairs and others

Nepal has good enough case laws relating to gender justice and justice with feminist components. For the purpose of the paper, the cases related to property and privacy which are really progressive, in other word, radical, are discussed as follows:

A leading case where a daughter is denied the right to inherit paternal property (a daughter has to be unmarried and must attain 35 years to inherit paternal property whereas a son is eligible to inherit paternal property right after his birth) under existing laws, was challenged in the Supreme Court in Meera v. Ministry of Law and Justice. The Court declared that the existing provision to inherit paternal property is conditional and a directive was issued to the government to introduce a Bill in the legislature within a year, reviewing laws related to property rights. At the same time, the Court also asked the government to take into consideration the patriarchal nature of the society, social structure, and fear of positive discrimination against men.

The hasty criticism of this judgment voiced that it discriminated men against women as women retains or are likely to retain double capacity to acquire partition from father and husband. Similarly, some opined it as a next to a dowry system. The best part of this judgment is that it has recognized equal property right between two sexes and positively, an equal property right is a milestone towards gender equality. Nevertheless, the decision is criticized by both feminists and anti-feminists.

ØUnemployment

Unemployment is serious problem that our government faces. Our leaders are trying their utmost best to solve it wisely. If it is not solved sooner, a social revolution may take plea to have its solution. The main cause of unemployment is the repaid growth of populations. Since independence the populations of India has increased by threes times its total. When people multiply, there raises the problems of unemployment and it becomes difficult for government to provide employment to a sufficient number of people. As a matter of principle it becomes the duty of government to provide employment to all as far as possible and we are blessed that our government is taking keen interest to solve this series problem of today. As the growth of populations is going unchecked, jobs and services in a given field commonly remains insufficient. When our youths do not find employment despite their best efforts, they get irritated and feel disappointed.

There are three types of unemployment, viz., labor class who are not educated, educated persons without possessing any technical qualifications and technical persons such as engineers and technical. Let us implore them one by one.

In case of labor class there are lakhs of people who earn their livelihood daily and gather themselves on some specific place just to find daily employment somewhere. They are not disappointed to a great extends. Sometimes they find employment and sometimes they return to their houses without finding employment. They are habituated to adjust themselves with the circumstance, though they also become irradiated and disappointed sometimes when problems of food and clothing arise before them. This is the case with general labor of the cities. As regards the agriculture labor of the village, they’re also not disappointed to a great extent as they find seasonal employment very easily in the farms and fields of big farmers.

Since the number of educated persons is increasing day by day, we are not in a position to afford a venue of work for this growing number. As such our educated persons are very much disappointed when they wander dark roads in search of employment. As they do not possess any technical and practical training, they only try to find clerical job which are not sufficiently according to the increasing number of educated persons. It has become a very ticklish problem which is being faced by our government.

As regards educated persons, possessing technical qualifications, they tend to be frustrated when they do not find employment despite their best qualifications. There can be in no two opinions that they find their employment very easily on the merits of their technical qualifications, but according to the increasing number of such educated persons also become victims of unemployment. Education is a very good thing and one must be educated but the irony of it is that when we offer educations to young people we are not in position to offer jobs to them. This is the very cause of disappointment among our educated youths.

The educated youth should change their mind also and they should think of self-employment, rather than searching jobs and services hither and they’re wasting their energy. In this way very serious problem of unemployment may be saved to a great extent.

***The End***

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Advocate S.K. Gupta

Final Note of Jurisprudence for All

Ø Meaning of Jurisprudence

Ø Meaning of Comparative Jurisprudence

Child Labor in Nepal

ØDifference between Law and Justice

Good governance is accountable

Good governance is transparent

Good governance follows the rule of law

Good governance is equitable and inclusive

Good governance is effective and efficient

Good governance is participatory

A landmark judgment for environmental jurisprudence

A woman has a right to abortion if:

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