Chapter 1: Legal Problems of Developing Countries, With Emphasis on Nepalese Situation

Chapter 1: Legal Problems of Developing Countries, With Emphasis on Nepalese Situation. 

According to Bhimarjun Acharya, The Major contemporary systems found in the world are:

1. Adversarial system based on common law.
2. Inquisitorial system based on based on Civil law
3. Socialist system based on Marxist Theory.

Identification of Nepalese Legal system.

1. Origin and Growth: 4 choices for development of any law and legal system, which are either,

1. On the basis of existing custom or having developed independently over a long period of time.
2. On the basis Codified Law.
3. On the basis of Court practice
4. On the basis of revolutionized their laws and institutions and breaking away from the past.

Nepalese Legal system belong to the first category. (Bhimarjun Acharya). It developed in two-fold Basis:

1. Stage of uncodified law. (our legal system was more advanced than westerns).
2. Stage of codified law. (Began after 1910 B.S).

2. Structure of the Law:  Civil law system and Common law system. Nepalese legal system is to some extent similar to that of common law system. There exists no distinction between public and private law like in civil law system. 

3. Sources of Law: like civil Law system, In Nepalese legal system law made by legislator is the primary source of law. Furthermore, judicial decisions have taken place as important source of law.

4. Judicial Organizations: 

Civil law: separate courts for separate issues and are dealt separately. 

Common Law: All disputes, whatever the nature is decided by the same court, by same procedure and in similar circumstances.

Nepalese legal system: More like a Civil law. 

5. Legal education

6. Legal profession.

7. Legal process etc. 

The major Fault in Nepalese Judicial system is procedural based system, which cause delay in justice dispension and overall development in the judicial system. Bhimarjun Acharya. 

a) Law and Societal Diversity: Representation of Interest Groups in Law-Making Process

This chapter focuses on the representation and participation of various interest groups in Nepal's law-making process. These groups include minorities, women, children, the aged, the disabled, and backward classes and communities. Understanding their involvement helps to ensure that laws and policies are inclusive and address the needs of all societal segments.

Key Concepts

Interest Groups: Groups that represent the interests of specific segments of society. They work to influence public policy and decision-making.

Representation: Ensuring that diverse groups have a voice in the legislative process.

Participation: The active involvement of interest groups in political activities, such as voting, advocacy, and holding public office.

Importance of Representation and Participation

Equality and Fairness: Laws and policies that consider the needs of all groups promote social justice.

Democratic Legitimacy: Inclusive political systems are more legitimate and stable.

Social Cohesion: Addressing the concerns of marginalized groups strengthens social unity.

Constitutional Provisions:

Right to Equality (Article 18): Ensures equal protection under the law and prohibits discrimination.

Right to Social Justice (Article 42): Guarantees proportional representation of marginalized groups in state structures.

Legislative Measures:

National Inclusion Commission Act, 2017: Establishes measures to include disadvantaged groups in state mechanisms.

Local Level Election Act, 2017: Requires representation of women, Dalits, and marginalized communities in local governments.

Representation of Specific Interest Groups

Minorities:

Challenges: Underrepresentation in political offices, cultural marginalization.

Mechanisms: Reserved seats in legislative bodies, special commissions focused on minority rights.

Women:

Challenges: Gender discrimination, socio-economic barriers.

Mechanisms: Quotas in parliamentary and local elections, National Women Commission to advocate for women's rights.

Children:

Challenges: Lack of direct political voice, reliance on adult representation.

Mechanisms: Child rights advocacy groups, integration of child rights considerations in policy-making.

Aged:

Challenges: Ageism, economic insecurity.

Mechanisms: Senior Citizen Act, advisory roles for elderly representatives in policy discussions.

Disabled:

Challenges: Accessibility issues, social stigma.

Mechanisms: Disability Rights Act, inclusion of disabled individuals in policy advisory councils.

Backward Classes and Communities:

Challenges: Social exclusion, economic disadvantage.

Mechanisms: Reservation policies in education and employment, targeted development programs.

Political Participation. 

Voting Rights: Ensuring all eligible citizens, including marginalized groups, can vote.

Advocacy: NGOs and civil society organizations play a critical role in advocating for the rights of interest groups.

Public Office: Encouraging marginalized groups to run for public office through affirmative actions and capacity-building initiatives.

Challenges and Solutions

Challenges:

Systemic Discrimination: Persistent social biases and institutional barriers.

Economic Barriers: Limited resources for marginalized groups to support political campaigns.

Lack of Awareness: Insufficient knowledge about rights and representation mechanisms among marginalized groups.

Solutions:

Capacity Building: Training and empowering marginalized groups to participate effectively in political processes.

Policy Reforms: Strengthening and enforcing laws to ensure better representation and protection of rights.

Awareness Campaigns: Educating the public about the importance of diversity and inclusion in the law-making process.

Conclusion

Ensuring the representation and participation of diverse interest groups in the law-making process is essential for a just and equitable society. Nepal’s legal and constitutional framework supports inclusivity, but continuous efforts are needed to address challenges and enhance these mechanisms' effectiveness. Promoting active participation and representation of all societal segments will contribute to a more democratic and representative political system in Nepal.

Suggested Readings

Constitution of Nepal

National Inclusion Commission Act, 2017

Local Level Election Act, 2017. 

Additional Materials coming soon…

Crux of Anil sir's class note:

3 Connotations of Jurisprudence:

1. Method to study Law.
2. Science of Law: See the law from the perspective of ruled not ruler. 
3.  Philosophy of Law: as it provides premises, not prove or disprove anything.                  

Common Challenges Faced by Developing Countries:

1. Human Resources. 

Developing countries raise and train Human resources. Developed countries benefit from human resources developed by developing countries. so, Our Main problem is Labor drain. 

Developed countries develop management techniques, technology and developing countries buys such technology. Developing countries feel more comfortable in hiring foreign workers at much higher rate. 

2. Natural Resources:      

Developing countries sell raw resources at very cheap price and developed countries produce value added materials from such raw resource and sell them at much higher price.   

Chronic Capitalism- Main problem.

3. Economic problem:

Developed Countries control Market through patented products and monopoly. For example, Touch Screen Patented by Hongkong's Citizen. now even we developed our own touch screen models we have to pay royalty to him. 

Example: Khimti Hydro electricity:  

Here NEA has to pay Norwegian Company in dollar. (In course of time price of dollar rises, and Nepal bear huge loss.)And further, NEA paid royalty also. 

Dominant Development Concepts in Developing Countries:

1. Economic Growth
2. Infrastructure Growth
3. Industrial Growth
4. Access to modern physical facilities. 

GCI report: 12 main Measuring factors and 117 sub-factors. 

Fatalism Vs Development: (Other problems faced by developing countries):

• Low level of professionalism accepted as a norm.  (delay due to rituals and social obligations)
• Low quality products, reports, deliverables.
• Delayed Submission of reports, deliverables.
• Personal problems and beliefs override professional decision.
• Willingness to pay for quality is low.
• Insurance is Considered as unnecessary luxury.

Emerging issues in Developing countries:

1. Environmental Issue.
2. Gender and people with special needs.
3. Social Justice.
4. Financialization of failed projects.
5. Answerability/accountability.
6. Benefit sharing mechanisms. (e.g.: in the hydroelectricity projects).
7. Lack of assured return on investment. 

Natural law, Laws of Nature and Natural rights are distinct concept, though connected. 

They are often used interchangeably leading to misunderstanding. 

Laws of Nature: Is Scientific theory about the physical universe and how it functions. They are not normative laws. They inform us about the world as it is but not about, we ought to behave.

Natural law: as we understand it. (see above). They are normative law. 

Natural Law has superior legal force; means human law that violates Natural law has neither moral nor legal validity. 

Natural Law creates Moral Obligation: Lawmakers has obligation to not to violate Natural laws while making law because individual has no moral obligation to obey an immoral law. 

Main presuppositions of Natural Law theory: 

1. It is based on value judgements which emanates from some absolute source, and which are in accordance wih nature and reason.
2. These value judgements express objectively ascertainable principles which governs the essential nature of persons and of the universe. 
3. Its principles are immutable. 
4. These principles are externally valid. 
5. Law is fundamental requirement of human life in society. 

Natural rights: Natural rights Comes from state of Nature, Thomas Hobbs and John Locke. These are the rights necessary for existence as human being. The most basic of these are;

1. Right to self- ownership and
2. Liberty of self-preservation. 

Positivism:

• Emerged in 18th century in europe.
• Also known as empiricism in philosophy. Empiricism refers to something which is scientific, and fact based, or it is the theory of knowledge which deals with the question “how do we know”. 
• August Compte: Rejected and challenge God (Universal Law). Science is concerned only to the empirical fact. After empirical fact is established, we generalize and deduce law. 
• From the Idea of August Compte Legal positivism emerge.

Understanding Jurisprudence, Chronology of development:

1. Natural Law (Continued for Long Time). 

   then, it was challenged by;

2. Analytical Positivism.

   then, these both (Natural law and Analytical positivism) were challenged by:

3. Historical Positivism. (They look to society from historical perspective).

   Then, idea of looking contemporary society gave birth to

4. Sociologist perspective. 

   they, divide into: 

   I. Marxist: Look at base of society and that base is economic relation, which make other structure and 1 structure is law. 

   II. Realist: They ended law on hands of Court.

Furthermore, from realist, the realism arises and through realism Critical legal studies emerge. And finally, from Critical Legal studies Feminism (Feminist Jurisprudence: Law from feminist perspective) and Post Modernism (deconstruction of everything) arises. 

Analytical Positivism: 

IT focuses on: Sovereign- Norms-Rule -Institutional Character (Institutional character by Joseph Raj).

3 Thesis of Analytical positivism:

1.  Epistemological thesis. (Empirical or Semantic or separability thesis)

Separate Law from other standards. 

Austin wrote book “the province of jurisprudence determined” to establish independent standard for jurisprudence. This same idea was adopted by Kelson in his book “Pure theory of Law”

Bentham's Sensorial jurisprudence is value free jurisprudence. 

2.  Command thesis:

Austin: - Sovereign gives validity to law, or he or she commands.

Kelson: - Grund norm gives validity to law. 

Hart: 

1. Primary Rules (are crude and not recognized)
2. Secondary Rule (To address the shortcomings of primary rules)

Joseph Raj: - Institutional Character of law.

3. Social thesis:

Law is based on social fact. 

see Joseph raj: - (Important)

Main criticism of Analytical Positivism: - If you deny natural laws how would you manage conflicting morality in society. Example: how to manage interest of someone who eats Cows and who don't.  Answer is David Hume's and Bentham's Principle of utility. 

  Prepared and edited by Madhu Dahal and Manish Rajak.