The Nature of Law PDF

Surendra  Bhandari   The Nature of Law...

Surendra  Bhandari   The Nature of Law - Surendra Bhandari1 1.1 Background “We live in and by the law. It makes us what we are: citizens, and employees and doctors and spouses and people who own things. It is sword, shield, and menace: we insist on our wage, or refuse to pay our rent, or are forced to forfeit penalties, or are closed up on jail, all in the name of what our abstract and ethereal sovereign, the law, has decreed.”2 What makes the law so powerful in commanding, regulating, and facilitating its subjects? This is a question about the nature of law. Alf Ross perceives that the question of the nature of law constitutes one of the permanent problems of any jurisprudence. He also reflects upon why the position is so different with respect to law. In reflecting this, he opines that law is not written in order to impart theoretical truths, but instead to directing the citizenry—judges and private persons alike—to act in a certain desired manner. Nonetheless, law itself is made up of certain concepts. Legal concepts require in-depth and precise analysis, which lead to propositional inquiry. 3 John Chipman Gray observes that legal conceptions are constantly changing; nevertheless, there are some eternal principles that show no signs of decay.4 The idea about the nature of law itself thus engages one in the profound analysis of legal concepts. This is particularly relevant within the historical context of the perennial debate over fundamental legal concepts. Alexy vividly remarks that the debate over the concept and the nature of law is both venerable and lively. Reaching back more than two millennia, it has acquired in our own day a degree of sophistication hitherto unknown.5 Marmor precisely elucidates that the nature of law deals with the question of why something is the law.6 This Chapter primarily explains why a certain standard that commands, regulates, or facilitates its subjects is called the law. Generally, an inquiry into the nature of law leads one to a further inquiry as to what makes a standard the law. In particular, this refers to the existence, features, hierarchy, and scope of law itself. The question of existence invites an analysis as to how law is created or found to be law. Legislation, precedent, treaties, customs, and writings of authorities are those sources from which the law comes into existence. The second and third chapters of this book explain the issue of the existence of law. Features of law cover a number of issues: characteristics or distinctive qualities of law, relationships between law and other disciplines, and the fundamental concept of law. This chapter and the fourth chapter deal with these issues. Hierarchies of law                                                                                                                         1. Associate Professor, Ritsumeikan University, Kyoto, Japan. 2. See RONALD DWORKIN, LAWS’S EMPIRE vii (Hart Publishing, 1998). 3. See ALF ROSS, ON LAW AND JUSTICE 6-11 (London, Stevens & Sons Limited, 1958). 4. See JOHN CHIMPAN GRAY, THE NATURE AND SOURCES OF LAW 1 (New Orleans, Quid Pro, LLC, eBook 2012). 5. See Robert Alexy, On the Concept and the Nature of Law, 21 RATION JURIS 281-299, 281 (2008). 6. See Andrei Marmor, The Nature of Law: An Introduction, in THE ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW 3-4 (Andrei Marmor ed., New York, Routledge, 2012). Page  1  of  25      Surendra  Bhandari   provide the classification and arrangement of laws ranked in accordance with their relative status or authority. This chapter and the fifth chapter will deal with the issue of hierarchy of law. The scope of law indicates the areas or issues covered by law. In fact, law covers almost all issues that are pertinent to human relationships: socio-politico, economic, and cultural relationships, among others. Laws are classified into different categories that are briefly explained in this chapter, while the rest of the book discusses the issues of scope and other important areas of law. Chart 1.1: The Nature of Law This chapter is premised on three main ideas about the Law nature of law. It presupposes that any legitimate, enforceable, and valid standard is law. These Standard three features do not offer a definition of law, but explain law in its coherent form. Legitimate Enforceable Valid This explanation about the nature of law distinguishes law from other branches of knowledge or disciplines. For example, moral or ethical standards are generally followed and respected in society, but they are not laws per se, as they do not retain these three characteristics: legitimacy, enforceability, and validity. Nevertheless, any standard, including a moral or ethical standard, if legitimized, validated, and enforceable, turns into law. Therefore, a collective demonstration of all these three characteristics is the necessary precondition for any standard to be recognized as law. With the existence of these three features of law, a legal standard is known as a positive standard. At the most basic level, in reading this chapter, readers will have an opportunity to become familiar with the following five major inquiries of law. Knowledge of these issues will also enable anyone who is interested in law to comprehend the basic characteristics or the nature of law. The five inquiries are as follows: First, what is law? Second, how does law operate? Third, how does law regulate human behavior and, in turn, how does human behavior influence law? Fourth, what institutional structures does law have? o Where does it come from? o Does it have a hierarchy? Page  2  of  25      Surendra  Bhandari   o How is it classified? o How does it interact with other disciplines in society? Fifth, how do jurists explain it? Some of these questions are discussed throughout this book. For example, the second chapter deals on the questions regarding the origins of law. Each of these questions requires a volume for detailed explanations. This first chapter treats most of these questions in a simplistic and precise manner so that readers can understand complex philosophical legal questions with little difficulty. 1.2 What is Law? The question, what is law, pretends to be a simple one. However, it is not a simple question for at least two reasons. Firstly, centuries have passed since jurists first began to explain the nature of law. Despite their seminal efforts, very few jurists have been in agreement about the nature of law. Consequently, a number of schools of thought have emerged, which offer distinct explanations of law. It is also common that within a single school of thought, ideas about the nature of law differ quite distinctly. This simple question holds a unique property. Secondly, most of the inquiries into the nature of law disjoin their explorations and explanations from the reality of law, by ignoring the central properties of law: legitimacy, validity, and enforceability (authority). These three properties (or features) distinguish law from other standards: ethics, morality, religion, economics, sociology, and any other disciplines or mode of regulations. In the absence of these central properties, law does not exist. Because they explain law in its most accurate form, these are the central features or properties of law. Law is a legitimate, valid, and enforceable standard, norm, rule, practice, principle, or command (let us name them jointly or singularly as an “L”). An absence of any of these three properties dismisses the existence of “L” as law. For example, with a lack of the existence of the property of legitimacy, an “L” cannot be law. Similarly, with the missing property of validity, an “L” cannot be law. Equally, an “L” is not considered law if it lacks the property of enforceability. Though it is rare, in some cases, an “L” can have the properties of legitimacy and validity, but cannot stand as law, if it is not enforceable. The classical example is a time-barred debt or any claim made after a clear lapse of the statutory limitation. Where does the legitimacy come from? An “L” will be legitimate when it follows a formally recognized process of enactment or formulation of law. For example, statutes are legitimate because they are enacted by parliament following a prescribed process. Precedents are laws because the judiciary, through the exhaustion of a formal process, establishes them. Rules and regulations are legitimate if they are formulated under the authority of delegated legislation. Private laws or contracts are legitimate if they are formulated by fulfilling the prescribed process and standards. Legitimacy, thus, generally arises from the fact of the accomplishment of a formally recognized process of enactment. Legitimacy is one of the important steps for an “L” to be law, but not a sufficient condition. For example, a statute enacted by the parliament in violation of the constitution cannot stand as law. If challenged, the judiciary might declare such Page  3  of  25      Surendra  Bhandari   a statute ultra vires to the Constitution, exercising its power of judicial review.7 A statute declared ultra vires might be legitimate because it is enacted through the legislative process, but not valid as it violates the authority of the Constitution. Similarly, rules and regulations formulated by the executive body might be declared ultra vires by the judiciary if they contravene the authority of the Constitution and the delegating statutes. A contract might be declared ineffective if it contravenes the authority of the Constitution, statutes, rules, and regulations. In a limited sense, it can be said that validity emanates from observing the hierarchy of law. Chapter 4 further discusses on validity. With the notion of the hierarchy of law, the question of validity can partially be addressed. Because a constitution is the highest law in the hierarchical order, it can validate all other laws. Or, in more precise terms, laws validate themselves in a hierarchical order. Now, the question comes as to how does the constitution derive its validity? Suppose two lawyers, a senior lawyer, Ms. S., and a junior lawyer, Mr. J., are discussing the issue of validity of a constitution. Their discussion is as follows: Box 1.1: Dialogue on the Validity of Law Mr. J. asks Ms. S.: “Where does the validity of a constitution come from?” Ms. S. replies: “It comes from the people. The people are sovereign and they elect their representatives to promulgate a constitution. After all, the representatives of the people study, discuss, argue, and finalize the contents of a constitution in a transparent manner acceptable to the people. Thus, from the will of the sovereign people, the constitution gets its validity.” Mr. J. says: “Well, it is all fine and good, but could you explain further, what happens if the will of the people itself is divided or contested?” Ms. S. replies: “This is certainly a possibility. In the democratic process, often ideas and opinions get divided and contested. In such a situation, the differences should be managed by the use of reason, knowledge, principles, and experiences.” “Fine, Ms. S. However, what if the reason, knowledge, principles, and experiences are contested on the ground of political ideologies? What then? Let me give you some examples of what happens. Individually, some representatives argue for liberal principles, while others argue for rational principles. There are others who argue for ethnic interests, socialism, or communism. In such a political polemics of ideologies, how do the representatives of the people reflect the will of the people?” Ms. S. responds, “In such a situation, it is difficult to promulgate a constitution. A constitution can be formed either through a dictatorial process where the will of the people is deemed to be irrelevant or it can be formed through a democratic process where the will of the people is the basis of the constitution. Oftentimes, the will of the people itself is illusive. In a politically charged society, political leaders decide almost all issues disregarding public will. Nevertheless, they describe their decisions as being truly reflective of the public will, as they are the leaders of their people. The democratic process suffers with such a lame duck vision. The                                                                                                                         7. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); Howell v. Mississippi, 543 U.S. 440 (2005). Page  4  of  25      Surendra  Bhandari   democratic process offers opportunities for open and transparent discourses based on a reason, knowledge, principles, and experiences, but where these are neglected for the sake of political ideologies, one can hardly tell democracy from anarchy. Thus, the battle between political ideologies and constitutionalism is critical in the making of a constitution. If political ideologies are so intransigent in accepting the supremacy of constitutionalism, the representatives fail to promulgate a constitution. Without basic laws, no modern society can be governed.” Mr. J. thanks Ms. S. for such an elaborate explanation and keeps asking questions. He asks further, “If I am not immodest in understanding your explanation, it is hard to get a constitution through a democratic process because of ideological opposition and consequently the country fails to recognize constitutionalism, which could guide them to design a constitution. Is my understanding correct?” Ms. S. patiently responds: “You are partly wrong. A democratic process is the a priori way that allows people the opportunity to recognize, understand, and own constitutionalism, the major principles under which a constitution is built. Further, the process involves interplay of both a priori and a posteriori methods. Democracy is not an ideology, but a process. The belief in democratic process is a priori. The process has built-in certain timeless principles, which reflect a democratic way of life. These principles include the rule of law, judicial review, autonomy of individuals, liberty, freedom, social harmony and tolerance, nationhood established amidst cultural or ethnic diversities, non-discrimination, equality before the law, an opportunity to grow in society, and public confidence in justice. Among these, autonomy and the rule of law are at the core. All other principles spring from these. In a democratic society, political ideologies should merge into these broad principles of constitutionalism and these principles should be brought into the constitutional structure. This is because principles alone are not binding unless they are transformed into the structure of rules. Thus, in short, the constitution derives its validity from the interplay of a priori and a posteriori knowledge in the form of intrinsic democratic principles transformed into the rules of the constitution itself. However, at the same time, these principles should be owned by the people, for which the key stakeholders, including political parties, academia, civil society organizations and others can play a greater role in positive public discourses. Normative public discourses are as detrimental as contesting political ideologies in the formulation of constitutionalism. 8 “Thanks a lot, Ms. S. Am I right to understand that a constitution derives its validity from the innate principles collectively owned by the people and thus reflected as their will in the form of constitutionalism?” “Yes Mr. J., Your understanding is commendable!” Following this conversation, let us come back to the issue of enforceability. If an “L” is not legitimate, it is void and does not even require to be declared ultra vires from the judiciary. It is no law at all. If the “L” is legitimate, but not valid, it is voidable and keeps operating until it is declared ultra vires by the judiciary. Besides being legitimate and valid, the “L” further needs to be enforceable. The “L” might be legitimate and valid, but not enforceable. For example, a law court cannot remedy a claim that is brought before the court after a clear lapse of statutory                                                                                                                         8. In fact, the ideas of Ms. S. can be justified and explained through the methodology of welfare-grundnorm, which is discussed in Chapter 11: the Rule of Law. Page  5  of  25      Surendra  Bhandari   limitation. In this setting, rights are recognized by law, but are not enforceable. Virtually, the judiciary cannot help a person who is unaware of rights. A person should exercise his/her rights and be vigilant enough to start the required legal process on time, in order to receive a legal remedy. Otherwise, a law court cannot enforce the rights of the party seeking a remedy to her claim. In short, an “L” can achieve the status of law, if it is legitimate, valid, and enforceable. 1.3 How does law operate? Law operates either through the regulation or authorization of the behavior of people, which includes both natural persons (human beings) and legal entities (organizations and institutions). Both types of persons are subject to the law. Law affects a person by regulating almost all conduct. Law applies everywhere in life, including walking in public places, being invited out, traveling to other countries and locally, living in a house, renting an apartment, owning property, marrying, divorcing, driving a car, borrowing money, purchasing goods and services, joining an organization, going to school, working at an office, buying insurance, entering into business, contracting, and so on. There could hardly be any human, organizational, and institutional conduct not regulated or authorized by law. Wherever we go, law is around us. Law does not leave us alone. It might not be an exaggeration to say that law is with us, during each second and for the entirety of our life; we incessantly interact with law. Law is expressed through the medium of command and obedience. In other words, law commands its subjects and its subjects also abide by law. Law may command certain acts to be done in a certain manner or it may command certain acts not to be done and thus to maintain forbearance. By command, the law either instructs a person to do or restrain from doing certain acts. The most intensive form of restriction is expressed by prohibition and penalty. We are obligated to do as law commands us. If we do not obey the law, we face the legal consequences, as defined by law, perhaps in the form of a fine, payment of damages or compensation, restitution of property, imprisonment, and so on. This means that law defines and regulates human, organizational, and institutional relationships in a myriad of ways. Societies have laws in order to protect people from harmful or illegal actions of other people. Therefore, law is taken as an instrument that protects life, property, liberty, and freedom through the mechanism of command and obedience. Law also operates by creating a facilitative environment for its subjects to pursue happiness, liberty, freedom, growth, development, choices, and other virtues or qualities. For example, among others, human rights laws are primarily designed with facilitative features. Both the facilitative and command aspects of law are expressed through the mechanism of rights and duties. In essence, law operates through the mechanism of rights and duties. In fact, law is the name of a package of rights and duties. Law creates, defines, and enforces rights and duties. In other words, it can be said that law engineers rights and duties in a seamless way.9                                                                                                                         9. See ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW, at 61, 150, 151, 181, 234 (Yale University Press, 4th printing 1930/1922). Pound describes law as a “…social institution to satisfy social wants – the claims and demands involved in the existence of civilized society—by giving effects to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human Page  6  of  25      Surendra  Bhandari   These rights and duties are creations of a legitimate process (posited), which should meet the preconditions of validity and enforceability. In the final analysis, law operates under the framework of legitimacy, validity, and enforceability. Within this framework, human, organizations, and institutions play their roles. The whole idea of law (the legal system) becomes real through the interplay of three institutions: the legislative body, the executive body, and the judiciary. The legislative body enacts laws; the judiciary interprets laws, and the executive body implements laws. A question may arise that when laws are enacted in a written form (except the constitutional conventions or customs) that they should be clear in meaning and understandable to any literate person. Why do these clear and understandable laws need to be interpreted by the judiciary? There are at least five grounds that justify the need of an interpretation from an independent and learned body, which is the court or judiciary. These grounds are as follows: 1.3.1 The fact-law dichotomy When legal disputes take place, a number of situations might arise. First, both parties in the dispute might agree on the facts and argue on the level of liabilities. Second, they may agree on the facts, but debate on the applicable law. Third, they might disagree both on the facts as well as the applicable law. In all of these situations, judges bear a responsibility to apply the best possible law to the given situation. The applicability of the law depends on the variation of the facts. Under certain facts, one law might apply; whereas, under another statement of facts, different laws might apply. For example, in the case of ATM Withdrawal using Stolen Passbook10 decided by the Supreme Court of Japan in 2002, the first and second situations had arisen. A person had stolen a parked car where the plaintiff had left his bank passbook inside the dashboard. With the passcode, the person had withdrawn over 8 million yen from plaintiff’s account. The plaintiff knew of the withdrawal the day after the occurrence and then asked the bank to repay his money. The bank denied repayment of the money, as they thought it was not the fault of the bank that plaintiff had lost the money. The plaintiff brought his case before the District Court and finally, the Supreme Court of Japan decided the case. There was no debate on facts, but there was a debate as to whether Article 478 of the Civil Code of Japan could be applied to make the bank free from responsibility. Article 478 is as follows: “Any performance made vis-à-vis a holder of quasi-possession of the claim shall remain effective to the extent the person who performed such obligation acted without knowledge, and was free from any negligence.” The Supreme Court of Japan found negligence on the part of both the bank and the plaintiff. However, the highest court observed that the negligence on the part of the bank was more serious than that of the plaintiff and, thus, upheld the plaintiff’s claim against the bank. This gives a clear example that in legal disputes, courts often interpret what law applies best to a given situation, not what the law actually is. Oftentimes, people fail to distinguish between these                                                                                                                                                                                                                                                                                                                                                                             conduct through politically organized society... a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence—in short, a continually more efficacious social engineering.” 10. See Supreme Court of Japan, Case No. 415 (ju) of 2002 decided on 8 April 2003, Minshu Vol. 57 No. 4: 337. Page  7  of  25      Surendra  Bhandari   two issues—what law applies best to a given situation and what the law is—and misunderstand the judiciaries’ involvement in defining what the applicable law is. In another instance, in 1992 a retired seventy-nine years lady, Ms. Stella Liebeck sitting in a passenger seat bought a cup of coffee from a drive through window at McDonald in New Mexico, U.S. While her grandson parked the car, Ms. Liebeck put the coffee between her knees attempting to remove the lid from the cup to add cream and sugar. Unfortunately, she spilled the coffee over her lap scalding her thighs. A vascular surgeon diagnosed third-degree burns. She was hospitalized for eight days with almost 11,000 USD medical expenses. She informed the incident to McDonald and asked for paying the medical bill. McDonald refused to pay. She went before a court. 11 In this case, the question was who should be responsible for the incident? Was McDonald responsible for the scald? Should McDonald pay the medical bill? What law governs the issue? Who violated the law? In this case, the Jury heard the case for seven days and awarded 200,000 USD to Ms. Liebeck as compensation. But the Jury also found twenty percent negligence on the part of Ms. Liebeck and reduced the damage proportionately to 160,000 USD. At the same time the Jury awarded Ms. Liebeck USD 2.7 million in punitive damages. The Jury found that the conduct of McDonald malicious and reckless. However, the court reduced the punitive damage to 480,000 USD.12 In this case, both the Jury and Court found the violation of tort law and applied the tort law to the given facts to resolve the dispute. One may find the decision of the court just or unjust, but the final decision of a court is binding and enforceable. It cannot be challenged. 1.3.2 To test the validity In cases that challenge the validity of law or an administrative action, the courts use the power of judicial review to test whether the impugned law or action is ultra vires. The test basically applies the hierarchy of law standard. If laws or actions found incompatible or inconsistent with the hierarchy of law, courts may declare them ultra vires. In such situations, courts interpret whether the impugned law or action lacks the validity criterion. For example, in Fletcher v. Peck,13 while deciding the case in 1810, the Supreme Court of the United States of America struck down a law enacted by the legislature of the State of Georgia on the ground that the State law restricted contractual right of individuals in contradiction to Article I Section 10 of the U.S. Constitution. The Supreme Court rejected the contention that the State of Georgia had the sovereign power as the agent of the people to legislate and repeal law on its own. However, the U.S. Supreme Court adopted a more flexible approach in the name of public welfare. In Home Building & Association v. Blaisdell case decided in 1934,14 it interpreted the laws to determine that a State Legislature could modify the terms of any contract for public welfare within the permissible limit of the constitution. Reading these two decisions, one can ask which is the right approach? The safe answer might be complex. It is because of the validity issue that often draws an important role for legal principles rationally chosen by judges. A                                                                                                                         11. For detail see JAY M. FEINMAN, LAW 101: EVERYTHING YOU NEED TO KNOW ABOUT AMERICAN LAW, Ch. 5 (Oxford University Press, 3rd ed., 2010); see also Elizabeth Sherowski, Hot Coffee, Cold Cash: Making the Most of ADR High-Stakes Personal Injury Lawsuits, 11 OHIO ST. J. ON DISP. RESOL. 1-13 (1996). 12. Id. 13. 6 Cranch (10 US) 87; 3 L. Ed.. 162 (1810). 14. 290 U. S. 398 (1934). Page  8  of  25      Surendra  Bhandari   normative underpinning of judges might influence the rational choice, which might question the positivity of law in its interpretation and application. The law and principle dichotomy is discussed in chapter 11. 1.3.3 The scope of rights and duties Disputes brought before the court involve complex issues involving the scope of rights and duties. Issues concerning rights often encompass power, privilege, and immunity. Let us take an example from the recent case of the United States v. Alvarez15 decided by the U.S. Supreme Court in June 2012. In this case, defendant Alvarez had made a false statement that he was a hockey player for the Detroit Red Wings, had once married a starlet from Mexico, and had obtained the Congressional Medal of Honor. The prosecutor found the last lie about the Congressional Medal Honor to be a violation under federal criminal law, of the Stolen Valor Act of 2005, 18 U.S.C. § 704. Alvarez had pleaded guilty, but also reserved his right to challenge the Act. The U.S. Supreme Court had to decide whether the Stolen Valor Act 2005 had infringed the first amendment rights of defendant, in particular his freedom of expression, and also whether it exceeded its scope. The U.S. Supreme Court decided that the right to freedom of expression is not an exclusive right. Certain speech, such as incitement, obscenity, defamation, speech integral to criminal conduct, so called fighting words, child pornography, fraud, true threats, and speech presenting some grave and imminent threat, is restricted. Besides these restrictions, a false statement cannot be a subject matter of criminal prosecution. The Court found that falsity alone without any harm caused by it could not be brought outside the purview of the first amendment protection. Against this background, the U.S. Supreme Court found the Stolen Valor Act inconsistent to the first amendment rights of the U.S. Constitution. The Supreme Court observed that, “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.”16 This case presents an example of how complicated issues regarding rights, duties, and the scope of the law involve in a legal proceeding. The complexities of the scope of the law, balanced against the rights and duties of citizens, often draws out rules and principles of interpretation from within the broader framework of a legal system. The concept of rights and duties is discussed in chapter 4. 1.3.4 Conceptual legal coherence Legal conceptual incoherence often induces challenges to interpretation. These challenges might be expressed in the form of managing hierarchical dissonance, managing dissonance between two separate laws, maintaining coherence between a provision and its exception or a proviso in a single section, retaining coherence between two or more words or clauses used in a single Section, and ensuring coherence between two or more provisions in a single Act. For                                                                                                                         15. See 567 U. S. (2012). 16. Id. Page  9  of  25      Surendra  Bhandari   example, in the Nebraska Equal Opportunity case, 17 the Nebraska court had to address the problem of the contradiction between the original provision and the amended provision of the Age Discrimination Act of 1963, and its 1986, amendment. The original provision had ruled out any discrimination on the grounds of age. The amendment had introduced the provision of a lump-sum pension for an employee who retired under the age of 55 and had been deprived of some of the benefits given to employees who would retire over the age of 55. Let us take another example from a case decided by the U.S. Court of Appeal, Second Circuit in 1981.18 Mr. Joseph Khurey and an insurance company called Insurance Company of North America (INA) had entered into an insurance agreement. The insurance policy had a written provision that it would cover aviation insurance within the United States of America, its territories or possessions, Canada or Mexico. Mr. Khurey and his family were flying on a single engine plane called Piper Arrow from New York to Puerto Rico. In between, they had stopped in Miami and Haiti to rest and refuel. Their plane got crashed when they were en route from Haiti to Puerto Rico, some 25 miles west of Puerto Rico. The insurance company declined to cover the insurance claiming that the accident had taken place not within the United States. In this case the court had to clarify the concept that what does it mean by ‘within the United States’ and whether the location of the plane crash would fall within the meaning of ‘within the United States.’ Under 48 U.S.C § 731 of 1976, Puerto Rico is a territory of the United States. 1.3.5 Safeguarding the public interest Most constitutional provisions, especially those related to fundamental rights, incorporate some central principles into positive rules. These principles, by their very nature, are broad- based. For example, right to equality, non-discrimination, right to life, right to freedom and justice, among others, provide room for drawing theories and principles in their interpretation. In the face of the inaction of government, or helplessness of the poor and vulnerable sections of society, courts have taken a proactive role to give space to the voice of the people through the mechanism of public interest litigation (PIL), which aims to protect public welfare. In some countries, courts have liberalized the procedural aspects of litigation and adopted a liberal approach to give effect to fundamental rights, human rights, protection of the environment, or to protect the poor and other marginalized people from the somber state of social injustice.19 Let us take an example from the issue of lesbian, gay, bisexual, transsexual, and intersexes persons, also known as LGBTIs, in Nepal. The Nepalese laws only recognized marriage between a man and a woman. Also, citizenship was granted only two sexes: male or female, and there was no legal provision on a gender-neutral citizenship. In order to buy property and otherwise engage in an enterprise, citizenship status was needed. The LGBTIs were deprived of                                                                                                                         17. See Nebraska Equal Opportunity Commission v. State Employees Retirement System, 471 N.W. 2d 398 (Neb. 1991). 18. See Vargas v. Insurance Company of North America, United States Court of Appeals, Second Circuit, 651 F.2d 838 (1981). 19. See generally Scott L. Cummings & Deborah L. Rhode, Public Interest Litigation: Insights from Theory and Practice, XXXVI FORDHAM URBAN LAW JOURNAL 603-651 (2009); P. N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 561-578 (1985); UPENDRA BAXI, COURAGE CRAFT AND CONTENTION (Bombay, Tripathi, 1985); Abram Chayes, The Role of the judges in Public Law Litigation, 89 HARVARD LAW REVIEW 1281-1316 (1976); SURENDRA BHANDARI, COURT, CONSTITUTION AND GLOBAL PUBLIC POLICY 58-97 (Kathmandu, DDL, 1999). Page  10  of  25      Surendra  Bhandari   citizenship under the status of an LGBTI person. Whereas they could get citizenship as a male or a female, they could not be recognized as an LGBTI person, which they considered had deprived them of buying property and engaging in enterprise as LGBTIs. Thus, the LGBTIs community challenged the existing laws of Nepal before the Supreme Court of Nepal on the ground of discrimination. As a further barrier, Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR) recognizes marriage and right to establish a family as only between men and women. Against such a complex legal situation, the Supreme Court of Nepal was expected to derive the accurate interpretation of law for the protection of the public interest. In their decision, the Supreme Court of Nepal held that liberty and personal freedoms are the basic values and guiding principles in the interpretation of fundamental human rights. The existing Nepalese laws were based on male-female taxonomy, which would deny the personal freedom of LGBTIs to have a family, enter into same-sex marriage, own property and engage in enterprises. Thus, the Supreme Court of Nepal declared those existing laws as discriminatory against LGBTIs and ordered the government of Nepal to take necessary measures to treat LGBTIs the same way as others, in terms of their identity, family and marriage rights, and other legal rights.20 The Proposition 8 issue before the Supreme Court of the United States is another interesting example in this regard. On the ruling of the Supreme Court of California,21 the State of California had legalized same-sex marriage on June 16, 2008. But with the amendment of its Constitution, it banned the same-sex marriage on November 5, 2008.22 The constitutional amendment is known as Proposition 8. The Proposition 8 was challenged before a federal court in a case known as Perry v. Schwarzenegger.23 On August 4, 2010 the federal district court declared the Proposition 8 unconstitutional. Later, the U. S. Court of Appeals for the Ninth Circuit on                                                                                                                         20. See Blue Diamond Society v. Government of Nepal, decided by the Division Bench of the SC of Nepal on 21 December 2007. 21. See In re marriage cases, S147999, United States Court of Appeals, Ninth Circuit. The Court observed that, “Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” 22. In November 2008 State elections of California, 52.24% voters approved to eliminate the same-sex marriage. As a result, the Constitution of California was amended adding a new Provision 7.5 that recognizes marriage only between a man and a woman. 23. See United States District Court for the Northern District of California, No. C 09-2292 VRW, decided by Chief District Justice Vaughn R. Walker. Justice Walker observes that, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.” Page  11  of  25      Surendra  Bhandari   February 7, 2012 upheld the district court verdict.24 Now, the case is pending before the Supreme Court of the U.S. known as Hollingsworth v. Perry. In the last week of March 2013, the U.S. Supreme Court has heard the case. The decision is yet to come. In this case, the Supreme Court of the U.S. is expected to define the concept of marriage. Since tradition, legal mechanisms are replete with the concept of marriage between a man and a woman, not between two adults of the same sex. In the changing context of social understanding of love and family, there are growing pressure to define law to enlarge rights in a liberal way. The above-mentioned examples give a clear idea that law operates through the mechanism of rights and duties. Legal proceedings or cases are those tools that invoke the forum of judiciary to settle the complex issues of rights and duties peacefully. 1.4. How does law regulate human behaviors, and how do human behaviors influence law? As discussed above, law regulates human behaviors through a system of creating rights and duties. A variety of laws in a hierarchical order produce rights and duties as human creations. Laws are created by members of society as people’s representatives, organized either in the form of an Assembly or a Legislative Body. There are different types of laws: constitutional law, statutory laws, rules, regulations, policies, treaties, agreements, conventions, contracts, and so on. For example, a constitution is the highest law at the domestic level. All other laws at the domestic level are expected to be respectful of and compatible with the constitution. When a question arises of the hierarchy or supremacy between a constitution and an international law, the answer depends on different variables. One of the established rules under Article 46 of the Vienna Convention on the Law of Treaties requires States not to invoke domestic laws as an excuse to avoid obligations under international rules, unless the international rules manifestly violate domestic laws of fundamental importance.25 The idea of the hierarchy of law can be illustrated in the following chart. Chart 1.2: Hierarchy of Law                                                                                                                         24. See Perry v. Brown, United States Court of Appeals for the Ninth Circuit, No. 10-16696, D.C. No. 3:09-cv- 02292-VRW (February 7, 2012). The Court observed that, ““Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex coupes and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same- sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.” 25. See the Vienna Convention on the Law of Treaties (VCLT) 1969, done at Vienna on 23 May 1969, entered into force on 27 January 1980, UNTS vol. 1155, p. 331; available at. Article 46 (1) of the VCLT provides that, “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. ”Article 46(2) of the VCLT provides that, “A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.” Page  12  of  25      Surendra  Bhandari   Constitution International Law Statutes Hierarchy of Law Rules & Regulations Contract A constitution is the fundamental or supreme law. All laws are subordinate to the constitution. Laws enacted by the parliament or other legislative body should be compatible with the constitution. For example, the Constitution of Japan, 1947, is the fundamental (supreme) law of Japan. It is fundamental because all other laws of Japan should be compatible with the Constitution of Japan. The Supreme Court of Japan is vested with an authority to determine the constitutionality of laws enacted by the Diet.26 The Constitution of the United States of America is the fundamental law of the U.S. Article VI of the American Constitution provides that the Constitution, laws made in pursuance thereof, and all treaties to which the U.S. is a party, are the supreme law of the U.S.27 In fact, there is no provision in the United States Constitution like Article 81 of the Japanese Constitution on judicial review, but the judiciary, since the establishment of the principle of judicial review in the famous case of Marbury v. Madison,28 has been uninterruptedly exercising the power of judicial review. With the power of judicial review, any laws inconsistent with the Constitution can be declared ultra vires. Like in the U.S. and Japan, many countries in the world have adopted constitutional supremacy as one of the fundamental governing principles. In short, the idea of constitutional supremacy regulates human, organizational, political, and institutional life in its optimum equilibrium. Most civil law countries; however, have adopted a principle of ‘parliamentary supremacy.’ The United Kingdom, the founder of the Common Law System, also adopts the principle of ‘parliamentary supremacy.’ The U.K. does not have a single body of a written constitution. Thus, the constitution of the United Kingdom is found in a variety of sources including the Magna Carta of 1215, the Act of Settlement of 1701, constitutional conventions, laws, customs, case laws, and writings of the constitutional experts. It is generally believed that in countries upholding the principle of ‘parliamentary supremacy,’ laws enacted by the parliament could not be reviewed and declared ultra vires by the judiciary. In recent days, however, the idea of ‘parliamentary supremacy’ is gradually changing its course in favor of the principle of                                                                                                                         26. See Article 81 of the Constitution of Japan, 1947, which reads, “The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.” 27. See Article VI.2 of the Constitution of the United States, 1787, which reads, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” 28. See supra note Marbury v. Madison. Page  13  of  25      Surendra  Bhandari   constitutional supremacy.29 Since many civil law countries in Europe such as France, Germany and Italy, and also the United Kingdom have joined the European Union, and the World Trade Organization (WTO), their domestic laws are required to be compatible with the EU30 and WTO laws, among others. These developments have helped to bring the idea of parliamentary supremacy closer to the idea of constitutional supremacy.31 The idea of constitutional supremacy needs to be analyzed carefully. It is not an absolute doctrine applied universally. For example, in some countries that have adopted the Islamic legal system, the Holy Quran and the Sunna of the Prophet Mohammed, hold the highest hierarchical authority over any legal instruments, including the constitution. For example, Articles 1 and 2 of the Constitution of the Islamic Republic of Iran, 1979, provide that the form of government of Iran is that of an Islamic Republic, endorsed by the people of Iran on the basis of their longstanding belief in the sovereignty of truth and Quranic justice. The Islamic Republic is a system based on the belief in One God (there is no God except Allah), where all rights to legislate arise from the Quran. Like that of the constitution, statutes are also laws. Statutes, however, are lower than the constitution in the hierarchical order. Laws enacted by parliament are called statutes. The National Diet of Japan is a bicameral parliament. It is composed of a lower house, called the House of Representatives, and an upper house, known as the House of Councilors or Chancellors. The House of Representative consists of 480 members and the House of Chancellors consists of 242 members. Altogether, the National Diet of Japan consists of 722 members. The U.S. Congress is also a bicameral parliament. The lower House is called the House of Representatives, and the upper House is known as the Senate. Similarly, the British parliament is also a bicameral parliament, where the lower House is known as the House of Commons and the upper House is called the House of Lords. However, a few countries, including China, have unicameral parliaments. The Chinese Parliament is called the National                                                                                                                        .29 See Giuseppe Martinico, Born to be Together: The Constitutional Complexity of the EU, 16 REVIEW OF THE CONSTITUTIONAL STUDIES 63-95 (2011); see also Mattias Kumm & Victor Ferreres Comella, The Future of Constitutional Conflict in the European Union: Constitutional Supremacy after the Constitutional Treaty, available at ; DAMIN CHALMERS, GARETH DAVIES, & GIORGIO MONTI, EUROPEAN UNION LAW AND MATERIALS (Cambridge University Press, 2nd ed. 2010); Laurent Pech, ‘A Union Founded on the Rule of Law’: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law, 6 EUROPEAN CONSTITUTIONAL LAW REVIEW 359-396 (2010); Wojciech Saduraski, ‘Solange, Chapter 3’: Constitutional Courts in Central Europe—Democracy—EU, 14 EUROPEAN LAW JOURNAL 1-35 (2008). 30. See HILAIRE BARNETT, CONSTITUTIONAL & ADMINISTRATIVE LAW 226 (London, Routledge, 8th ed., 2011). The author mentions that since 1960s, the European Court of Justice has insisted on the supremacy of Community law over domestic law. From the Court’s point of view, what has been created is nothing less than a new legal order: a supranational organization which imposes legal duties on Member States and creates enforceable legal rights for citizens. 31. See supra note Mattias & Victor. They observe that forty years after the European Court of Justice (ECJ) declared the law of the European Communities (EU Law) to be the supreme law of the land in Europe, controversy over the relationship between EU Law and national law remains very much alive. To be sure, there are important issues that have been settled. National courts in all 15 jurisdictions have accepted that EU Law trumps national statutes, even statutes enacted later in time. Page  14  of  25      Surendra  Bhandari   People’s Congress. Irrespective of whether countries have presidential or parliamentary forms of governments, most of them have adopted a system of bicameral legislation. Rules and regulations are also laws. The executive branch of the government frames rules and regulations. The parliament may delegate its legislative authority enabling the executive branch of a government to make necessary rules and regulations to foster the effective implementation of statutes. These rules and regulations are called delegated legislation, as without the authority of legislation delegated by the parliament, the executive body cannot frame rules and regulations. As statutes are subordinate to a constitution, so, too, are rules and regulations subordinate to statutes. Rules and regulations incompatible with the statutes might be declared ultra vires by the judiciary. Like the constitution and statutes, rules and regulations also regulate human, organizational, political, and institutional behaviors. Contracts are also laws. Contracts are laws made by individuals. Through the mechanism of contracts, individuals engage in making laws that apply only between the parties present in the contract. Two or more persons may enter into an agreement or a contract permissible by law in order to fulfill a promise or an obligation. A failure to fulfill the promise or the obligation defined by the contract will be considered a violation of law. Contracts are enforceable by the judiciary like statutes, rules, and regulations. Contracts, like other laws, create a binding legal relationship consisting of rights and duties of and between the contracting parties. Contracts are subordinate to the constitution, statutes, rules, and regulations. Contracts are the most prominent forms of instrument in the business world that design business relationships. States create international laws with the consent of two or more States, in the form of treaties, agreements, conventions, declarations, and decisions. These international laws cover many areas of international relations and cooperation including human rights, protection of the environment, conservation of natural resources, international trade, and international business, among others. One of the salient features of international law is that most of its rules aim at regulating the behavior of States. In a limited sense, non-state actors, individuals, and corporations are also considered subjects of international law. Nevertheless, states are the principal subjects of the international law. Conducts having ties with international cooperation is regulated and facilitated by international law. In short, constitutions, statutes, rules, regulations, contracts, and treaties are laws. The common features of these laws signify that they are enforceable, legitimate, and valid. In some cases, international laws (treaties or conventions) retain the properties of legitimacy and validity, but lack strong enforceable properties. Often questions are raised about the effectiveness of the international law. It is also alleged that when powerful countries violate international law, it is difficult to enforce the international laws against them. The invasion of Tanzania by Uganda in 1978, the invasion of Kuwait by Iraq in 1989, strikes on Bosnia by NATO in 1999, the invasion of Iraq by the U.S. in 2003, the invasion of Lebanon by Israel in 2006, and some other international events aggravate the doubts as to the effectiveness of international law. Further, international environmental laws and humanitarian laws have often suffered from the weakest form of implementation mechanisms. The Security Council of the United Nations decided to take necessary action against the Gaddafi regime in Libya in 2011, but due to the reluctance of China and Russia, the Security Council is unable to take any measure against the human rights violations and killing of people committed by the Syrian government continuously since 2010. Page  15  of  25      Surendra  Bhandari   These are genuine criticisms that expose the weaknesses of international law due to its politicization. Nevertheless, there are overwhelming accounts of the successful implementation of international laws. It is more logical to say that amidst the problems, international law is gradually gaining its effectiveness. As never before, the establishment of international tribunals for war crimes, institutionalization of the International Criminal Court, and the constant improvement in the implementation of international humanitarian laws are adding new strengths in the life of international law. Further, all international laws do not share weak implementation mechanisms. Some of them have pretty strong implementation mechanisms. For example, the regional bodies of human rights laws, and the rules of the World Trade Organization (WTO) have effective implementation mechanisms in place. In the final analysis, constitutions are the fundamental and supreme law of countries. In many cases, international laws have gained the status of a supreme law. Statutes, rules, regulations, and contracts regulate almost every aspect of human, organizational, political, and institutional conducts. In short, we can conclude that valid, legitimate, and enforceable standards recognize, define, regulate, authorize, and protect human, organizational, political, and institutional relationships in the arrangement of rights and duties. In the final analysis, these relationships and associated conduct are the reflections of a package of rights and duties. 1.5 How do Jurists Explain Law? If somebody asks us what law is, perhaps we would love to respond to the question with our own established notions about law. Because of our own familiarity with law, we may respond to the question. There are four common reasons for this idea. First, law exists in society as a socio-politico fact. We experience it in our everyday life. We feel and know law as a member of society. Second, law regulates human relationships. Every day, we interact with each other and realize how the law regulates us. Third, media regularly covers legal issues and imparts information about the law to society. Fourth, knowledge is often passed down from one generation to another, especially from seniors to juniors in a family, a group, at school, in the workplace, and so on. As a result, we know of social norms and values. Oftentimes, law emanates from these social norms and values. Despite these four important sources of our personal knowledge about law, we still cannot define law with a certainty. Ronald Dworkin argues that since we often have theoretical disagreement about the grounds of law, thus we do not agree about what law is.32 It is for this reason that jurists, who are experts on the subject of law, have been discussing the nature of law for centuries. Rarely have they agreed. Rather, they have sharply disagreed. Different jurists have divergent explanations of law, often in contradiction with each other. The divergence among jurists has left major gaps in the questions about the nature of law.33 As a result, there                                                                                                                         32. See supra note, LAW’S EMPIRE 6-7. Dworkin claims that, “Why then do lawyers and judges sometimes appear to be having a theoretical disagreement about the law? Because when they appear to be disagreeing in the theoretical way about what the law is, they are really disagreeing about what it should be. Their disagreement is really over issues of morality and fidelity, not law.” 33. One of the earliest and major works in this area is: The Nature and Sources of the law, written by John Chipman Gray in 1909. His observations are valid to date. He observes that there are three ways of approaching law: historical, analytical, and deontological. What human beings have done, what they are doing, and what they Page  16  of  25      Surendra  Bhandari   are a number of schools of thought, which explicate the nature of law with diverse and incoherent perspectives. Some of the major schools of thought are as follows: Natural Law School Analytical or Positive Law School Pure Theory of Law Historical School Sociological School Realist School Feminist Legal Thinking Postmodernism Natural law school elucidates the idea that the rules of nature deductible through reason should be the source of laws made by human beings (e.g. parliament). For the natural law school, the rules of nature are universal and can be discovered by reason. For the traditional natural law school, ordinary human law is the true law only insofar as it conforms to the universal principles of nature as discovered by reason. What constitutes reason, or what is a reason, is a question often treated divergently even by natural law jurists and legal philosophers.34 The problem with reason appears when it is approached with belief, values, culture, politics, religion, ideology, etc.35 Any of these variables could create an exclusive ground for reason and, thus, the basis for reason itself is lost. As a result of this conundrum, modern natural law jurists choose to explain law from the perspectives of morality and procedural fairness rather than from the perspective of reason.36 Modern natural jurists do not claim that immoral rules are not laws. Rather, they demand procedural fairness and moral justification when enacting laws. They certainly argue that practical reason in the form of morality and procedural fairness are grounds for justification of law and legal institutions. 37 Aristotle,                                                                                                                                                                                                                                                                                                                                                                             ought to do, should be given a comprehensive treatment. Each of these methods has its advantages and its drawbacks. The history of institutions is no means an aid to the understanding of their nature. A present reason is better than a past reason, but a past reason is better than no reason at all. Gray names the analytical method as a systematic or dogmatic method. This method studies the doctrines of law. This method might have limitations to expose the doctrine that is distorted, perverted, and misunderstood. We might not discover the anomalies when we are simply face to face with the present system. The deontological or ethical method examines law from the standards of the need of society. This demands to approach law from the side of the public welfare and seeks to adapt it to the promotion of the common good. See JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW, at 10-12 (The Columbia University Press, 1909/ Kindle). 34. See MARTIN HEIDEGGER, THE PRINCIPLES OF REASON 117-130 (The Indiana University Press, 1991). 35. See generally MARTIN HEIDEGGER, JOEL FEINBERG & RUSS SHAFER-LANDAU, REASON AND RESPONSIBILITY: READINGS IN SOME BASIC PROBLEMS OF PHILOSOPHY (Thomson Wadsworth, 2008). 36. See generally JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (Oxford University Press, 2nd ed., 2011); LON FULLER, THE MORALITY OF LAW (Yale University Press, 1969). 37. See John Finnis, Natural Law Theory: Its Past and Its Present, in THE ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW 16-30 (Andrei Marmor ed., New York, Routledge, 2012); see also Brian Bix, Natural Law Theory, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 211-227 (Dennis Patterson ed., Wiley-Blackwell, 2010). Page  17  of  25      Surendra  Bhandari   Thomas Aquinas, Lon Fuller, and John Finnis are some of the leading natural law jurists and philosophers. For positivist or analytical jurists, law is enacted or commanded by the sovereign. The sovereign might be a King, Queen, Emperor, or the Parliament. For positivists, mere lack of moral content in the law does not disqualify the law from regulating human, organizational, political, and institutional relations. H.L.A. Hart, a leading positivist jurist, has elucidated a simple but enduring idea of law. For him, law is the union of primary and secondary rules. Primary rules are informal rules practiced in society by community or family but consist of three defects: uncertainty, static, and inefficiency. A formal process removes these three defects turning these primary rules into secondary rules. Consequently, these secondary rules retain the authority of law.38 Parliament and judiciary remove the defects in primary rules. Parliament recognizes primary rules and, if needed, introduces necessary changes. Thus, the parliamentary process removes the defects of uncertainty and static. The judiciary determines whether the rules have been violated and whether they are enforceable. Thus, the judiciary removes the third defect of inefficiency. For Hart, when these three defects are removed, a rule turns into the body of law. As Hart disagreed with Austin’s command theory of law, Joseph Raz disagrees with Hart’s explanation of the law. For Raz, a rule cannot be law only by removing those three defects. This is due to the fact that law consists of three properties: authority, legitimacy, and validity.39 There should be an authority with the power to decide what should be the law and what should not. In general, the parliament (e. g. Diet) holds this authority. With this authority, parliament, by engaging in the legislative process, adopts certain norms as law. The legislative process ensures legitimacy of law. Finally, the law enacted by parliament should be valid. It should not be declared invalid by the judiciary and should be acceptable in society. In essence, the enacted law should meet the constitutional criteria by which the law becomes valid. Despite the disagreement between Hart and Raz, there also exists a commonality between them. Both have accredited parliament as the agency that enacts law. Their explanation of law differs with the Austinian explanation of law. For Austin, law is a command of the sovereign, which does not yield to the command of others, rather enforces law through a threat of sanction.40 Austinian features of law are almost missing in Hart’s and Raz’s explanations of law. Nevertheless, for both Austin and Hart, international law is not law, in its proper sense. For them, international law is a law of morality, in the broadest sense. According to Austin, Hart, and Raz, morality is not a standard for qualifying the validity of law. In Hart’s view, in a situation where law is silent (a penumbral situation), judges are expected to decide the case based on the best possible explanation of the law with a minimum content of morality. The idea of ‘minimum content of morality’ has rekindled the centuries’ old debate on law and morality.                                                                                                                         38. See H. L. A. HART, THE CONCEPT OF LAW 79-99 (Clarendon Press, 2nd ed. 2002). 39. See JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 3-27, 146-172 (Oxford University Press, 2nd ed., 2009). 40. See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, Lecture I (Kindle, 2011). Page  18  of  25      Surendra  Bhandari   For positivists, especially for Hart, the primary and secondary rules are social facts. For natural law jurists, especially for Fuller, law should be guided by moral standards. For pure theory of law, established by Hans Kelsen, law is derived neither from social fact nor from morality. Law consists of norms. Thus, one norm is derived from another norm and the chain continues to validate one norm by other higher norms. Human conduct is regulated by norms. Law is a normative order. By their nature, norms can be divided into two broad categories. One norm is related to what “ought” to be done and another what “is”. The “ought” norm provides justification and validity. The “is” norm demonstrates rules in their true form. For Kelsen, the highest norm is non-positive, since it unites all other norms and demands compatibility of all other norms with the highest norm. At the domestic level, the constitution is the highest norm; at the international level, international law is the highest norm.41 Rather than settling the juristic debate on the nature of law, Kelsenian normativity of the highest norm opens more uncertainties and floodgates over the controversy since the highest norm is not a positive one. For the historical school, law is found in human culture, which is a part of human history or people’s national spirit, i.e. volkgeist. For Savigny,42 law is not an arbitrary act of a legislator. Law is developed in the form of customs. All laws originate from customs and much later they were created by juristic activity, such as legislation and judicial interpretation. Savigny explains law in an organic form. Law grows with the growth, and strengthens with the strength, of the people, and finally dies away as the nation loses its nationality. Law goes through three stages. First, at the outset, laws are found in the form of custom. They form a political element and organize a young nation. Second, in the middle period of the development of laws, they retain the political element with an added technical juristic value. This period is the apogee of a people’s legal culture. This is a period when law is legislated and codified by a formal process (parliament). Finally, at its third stage, like natural organs, when laws lack popular support and with the loss of national identity, eventually law also dies out. There are a number of ideas in the thinking of the sociological approach to the legal order. One can also see a shift from the explanation of the origination of law to the implications of law for society. In recent times, sociological jurisprudence has placed greater emphasis on the function of law as an instrument for serving the needs of human society. In society, there is an inevitable conflict between social and individual interests. Law reconciles these conflicting interests either through a mechanism of reward or through coercion. The proper function of law is to achieve a balance between the competing interests in the form of social control or social engineering. Jurists and legislators are expected to make a balance between these interests through the mechanism of a legal design.43 Among many towering figures, Max Weber, Eugen Earlich, and Roscoe Pound are considered the most influential sociological jurists.                                                                                                                         41. See generally HANS KELSEN, GENERAL THEORY OF LAW AND STATE (The Lawbook Exchange Ltd., 2009); see also HANS KELSEN, PURE THEORY OF LAW (The Lawbook Exchange Ltd., 2009); Charles Leben, Hans Kelsen and Advancement of International Law, 9 EUROPEAN JOURNAL OF INTERNATIONAL LAW 287-305 (1998). Joseph Raz, Kelsen’s General Theory of Norms, 6 PHILOSOPHIA 495-504 (1976). 42. See generally FREDERICK C. BEISER, THE GERMAN HISTORICAL TRADITION 214-252 (USA, Oxford University Press, 2012). 43. See generally ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW (Forgotten Books, Kindle 2012); see also ROSCOE POUND, THE IDEAL ELEMENT IN LAW (The Liberty Fund, First American Edition, 2002); EUGEN EHRLICH, FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF LAW (Transaction Publishers, 2001); Page  19  of  25      Surendra  Bhandari   The realist school explains law as the articulation of the judiciary. Though, Ronald Dworkin who is not branded as a realist jurist also subscribes the view that law is what the judges say it is.44 As much as logic, the life of law was an experience for Justice Holmes.45 He viewed law as that which the judges experience and decide. Gray46 asserts that even a statute is not law until a court interprets it as such. As an institution organized in society, law will be influenced by many factors such as judicial principles, values, practices, ideology, and concepts, in an implicit way. A judge, while interpreting law, expresses his/her wisdom as shaped by all these implicit factors. For realists, until a court decides, law is merely imaginary. For example, for Alf Ross,47 the laws made by legislature were merely directives to judges to apply in real cases. In short, for realists, law that is actually in force is what the judges decide. However, it should be noted that there are two groups of realists: American Realists and Scandinavian Realists. Broadly, they share the common philosophical analysis of law; nevertheless, they differ in their focus. American realists focus on adjudication, whereas Scandinavian realists including Hagerstrom, Ludstedt, Olivecrona, and Ross focus on conceptual analysis of law, which makes them closer to positivists in some respects. Feminist legal thinking is an inquiry about how law treats women and how the position of women in society could be improved through the instrument of law. Feminist legal thinkers primarily analyze how the existing body of law has created a mechanism by which men control, dominate, and exploit women. They view such structure of law as patriarchal. Feminists demand equality and respect for women in society. In short, feminism is a real movement for the demand of equality between male and female, in every respect.48 Feminist legal scholars get intellectual support from critical legal thinkers, who critically expose how law works as an instrument of domination, exploitation, and discrimination. The work of critical legal thinkers helped to develop postmodernist legal thinking. The postmodernists foster identities of different groups and communities in a society to make the law more realistic. The analysis of identity seeks to empower different cultural groups that are not sufficiently empowered by law.                                                                                                                                                                                                                                                                                                                                                                             ROSCOE POUND, SOCIAL CONTROL THROUGH LAW (Transactional Publications, 1996); MAX WEBER, ECONOMY AND SOCIETY 641-900 (Guenther Roth & Claus Wittich eds., New York, Bedminister Press, Vol. II, 1968). 44. See supra note, LAW’S EMPIRE 1-6. Dworkin argues that, “It matters how judges decide cases... In Britain and America, among other places, judicial decisions affect a great many other peoples as well, because the law often becomes what judges say it is... Since it matters in these different ways how judges decide cases, it also matters what they think the law is, and when they disagree about this, it matters what kind of disagreement they are having... In a trivial sense judges unquestionably make new law every time they decide an important case.” 45. See Oliver Wendell Holmes, The Path of Law, 10 HARVARD LAW REVIEW 457 (1897). Holmes argues, “... What constitutes law? You will find some text writers telling you that it is something different from what is decided by the courts... that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the... courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” 46. See supra note, THE NATURE AND SOURCES OF LAW 44. 47. See supra note ON LAW & JUSTICE. 48. See generally NANCY LEVIT, ROBERT VERCHICK, & MARTHA MINOW, FEMINIST LEGAL THEORY (New York University Press, 2006); see also KELLY WEISBERG, FEMINIST LEGAL THEORY: FOUNDATIONS (Temple University Press, 1993); MARY JOE FREG, POSTMODERN LEGAL FEMINISm (Routledge, 1992). Page  20  of  25      Surendra  Bhandari   1.6 Classification of Law Law can be classified in a number of ways. The following chart shows five different ways law may be classified. Chart 1.3: Classification of Law Law Jurisdiction Nature Scope Rights Hierarchy Domestic Civil Public Substantive Constitution International Criminal Private Procedural Statute Rules, Regulations Contract These five classifications of law can be briefly explained as follows: 1.6.1 Based on Jurisdiction Laws can be classified as domestic and international laws. This classification is based on jurisdiction, which defines the power of courts to hear a case (inquire into the facts, apply laws, make orders, and declare judgments). Domestic laws apply at the domestic level; that is to say, they apply within the territorial jurisdiction of a country. However, there are some domestic laws that have extra-territorial jurisdiction. For example, on matters of war crimes and genocide committed even in other states, courts may exercise jurisdiction and prosecute at the domestic level. Article 2 of the Penal Code of Japan prohibits certain conduct committed outside the territory of Japan and authorizes courts in Japan to hear cases related to such conduct. International laws apply to all contracting parties or member states. International laws can be applied either by international courts or domestic courts, as provided in the relevant international and domestic laws. 1.6.2 Based on the Nature of Law Laws can be classified as civil and criminal laws. This classification is based on the nature of laws. Criminal law declares certain activities as crimes punishable by law. The aim of criminal law is to prevent harm to individual and society from individuals or groups who perpetrate crimes (criminal law is discussed in chapter 6). For example, the Penal Code of Japan, 1907, is the body of criminal law; it defines and declares certain conducts as crimes and prescribes penalty to such conducts. Crime is a public offence and the state takes responsibility to prosecute the accused. Civil law is a body of law concerned with private rights and remedies of individuals (civil law is discussed in chapter 8). In general, civil law relates to matters of property, status, and obligation. One of the major aims of the civil law is to restore a person to the original position; that is to say, in the same position as she had prior to the loss or injury. Page  21  of  25      Surendra  Bhandari   For example, if “A” occupies “B’s” house illegally, civil law provides a remedy to “B” by authorizing “B” as in a position to retain his/her house, possibly with compensation from “A”. Civil laws are broadly divided into two main groups: torts and other civil matters. Tort law is discussed in chapter 7. 1.6.3 Based on Scope Scope indicates as to what matters on which the law should deal with. Based on scope, laws can be divided into two broad categories: public and private laws. Public laws generally deal with public matters or matters that touch upon public at large in society. The constitutional, administrative, penal, and public international laws are generally considered as public laws. Private laws are those portions of law, which define, regulate, enforce, and administer relationships among individuals, associations, and corporations. Private laws cover all other laws that do not belong to the scope of the public law. For example, the body of civil law consists of the private law. International laws are also divided into the private and public laws. For example, international laws related to contracts, marriage, and domicile fall into the category of private law. 1.6.4 Based on Rights Laws are also classified based on rights. In general, there are two types of rights: substantive and procedural. Therefo