chapter 6: Some Recent Approaches of Jurisprudence

a. Cognitivism vs Non-Cognitivism (in Moral Philosophy & Jurisprudence)

▶ Cognitivist Theories:

• Moral Naturalism: Morality is rooted in natural properties (e.g., pleasure in utilitarianism).
• Moral Non-Naturalism: Morality is independent of empirical properties; known through intuition (e.g., G.E. Moore).
• Error Theory: All moral judgments are false because there are no moral facts.
• Subjectivism (Somewhat Cognitivist): Moral truths depend on personal or societal beliefs (relativism).

▶ Non-Cognitivist Theories:

• Emotivism (A.J. Ayer, C.L. Stevenson): Moral claims express feelings ("Murder is wrong" = "Boo murder").
• Prescriptivism (R.M. Hare): Moral claims are commands or prescriptions ("You ought not kill" = "Don’t kill").

⚖ 2. Formalism vs Pragmatism (Legal Theories)

▶ For

Formalism:

• Law is clear, rational, and must be applied as it is written.
• Judge is like an umpire, not a legislator.
• Maintains separation of powers (no judicial law-making).

Pragmatism/Realism:

• Law is shaped by social, political, and moral factors.
• Judicial discretion is necessary in ambiguous cases.
• Prioritizes outcomes, policy goals, and justice.

Notable Nepalese Case Examples:

• Formalism: Kancha Prajapati case, Lok Bhakta Rana case.
• Pragmatism: Meera Dhungana case (Marital rape), Sunil Babu Panta case (LGBTQ+ rights).

C. Universalism vs Cultural Relativism 

Introduction:

Since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, there has been a sustained debate between cultural relativists and universalists regarding the legitimacy and applicability of international human rights norms across diverse societies, especially in non-Western contexts. Cultural relativists argue that, as there are no absolute or universally accepted moral or legal standards, no single society has the right to judge others. They often critique the West for disguising its cultural norms as "universal" standards, thereby promoting cultural hegemony under the pretense of human rights advocacy.

Cultural Relativism:

Proponents and Foundations: Cultural relativism, emerging as an anthropological perspective, was primarily developed by scholars such as Franz Boas, Ruth Benedict, and Melville Herskovits in the 1940s. It is rooted in the principle that every culture and value system is valid in its own context. Therefore, individual rights and legal claims are best understood through local traditions and customs.

Cultural relativists assert that moral values and social institutions reflect a wide range of cultural diversity. Consequently, these variations should not be judged by outsiders. Their philosophical foundation emphasizes the inherent dignity of every cultural system and the necessity for tolerance, even when customs deviate from one's own moral compass.

Historical Context and Evolution: The debate between universalism and relativism dates back to classical times, particularly fifth-century B.C. Greece. In Sophocles’ play Antigone, the titular character defies King Creon’s decree by burying her brother, believing that divine (unwritten) law supersedes human edicts. This story captures the enduring conflict between natural/universal law and particular/human law.

Aristotle later elaborated on this dichotomy by distinguishing between:

• Particular law: Made by a community for its members, and
• Universal law: Rooted in nature or divinity, and applicable to all humans.

Boas and his colleagues emphasized that judging a culture by external standards is inherently flawed, as every culture believes its values to be the best way of life for its people. This view developed in reaction to Eurocentric cultural evolutionism, which wrongly presumed Western cultures were the pinnacle of human development.

Impact and Development: Cultural relativist thought significantly influenced the 1947 statement by the American Anthropological Association to the UN Commission on Human Rights. The statement criticized the early draft of the UDHR for reflecting only North American and Western European values, advocating instead for a broader cultural foundation to ensure global legitimacy.

Although cultural relativism sparked a wave of intellectual and cultural awakening, its popularity diminished shortly after the UDHR was ratified in 1948. However, the 1990s witnessed a resurgence, particularly among Asian and post-colonial nations. This revival culminated in the 1993 Bangkok Declaration, where several Asian countries emphasized that while human rights are universal, their application must consider national, historical, cultural, and religious contexts.

The fundamental claim of cultural relativism is that moral and ethical values vary so widely across societies that no universal human rights framework can exist without some level of cultural modification. Therefore, while cultures may internally validate certain moral judgments, no single judgment can be accepted as globally valid.

Types of Cultural Relativism:

1. Weak Cultural Relativism: Acknowledges the relative validity of all cultures but suggests that universal human rights are achievable if they incorporate cultural elements from diverse societies. It promotes consensus and inclusivity.
2. Strong Cultural Relativism (Essentialism): Argues that cultures are fundamentally exclusive and incompatible. It claims that there is no universal culture or set of values, hence a single human rights framework is impossible. What is morally acceptable in one culture may be deeply offensive in another, making universal norms unattainable.

Universalism

Core Principles: Universalism underpins the modern international human rights system, as explicitly stated in the UN Charter, the UDHR, and other global instruments such as the Convention on the Elimination of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and others.

Universalism asserts that human rights are inherent to all individuals regardless of race, gender, religion, culture, nationality, or other distinctions. Universalists argue that these rights must be upheld even when they contradict cultural or religious practices.

Philosophical Basis: Universal human rights are built on principles of equality, indivisibility, and inherent dignity. According to Shestack, universalist theories may draw from natural law, justice, reactions to oppression, and the inherent dignity of every human being. Thus, universalists seek a set of basic ethical standards that transcend cultural, religious, or political divisions.

They believe that human rights are not culturally relative but are based on the essential dignity shared by all humans. This belief is reinforced by the near-unanimous international endorsement of fundamental rights and freedoms in global legal frameworks.

Historical Development: The philosophical roots of universalism lie in the liberal Enlightenment traditions, particularly the ideas of Rousseau, Locke, and Kant. Inspired by the Magna Carta, these thinkers advocated that humans are naturally free, equal, and independent. Their ideas later influenced seminal political documents like the U.S. Declaration of Independence and the French Declaration on the Rights of Man and Citizen, laying the foundation for modern universal human rights discourse.

These revolutionary principles served as a response to centuries of war, oppression, and inequality in Europe, fueling the development of a global movement to codify and protect human rights through legal instruments.

Conclusion

The debate between cultural relativism and universalism reflects a deep philosophical and practical conflict over the nature, source, and application of human rights. Cultural relativism challenges the imposition of Western values on non-Western societies, advocating for moral tolerance and cultural diversity. Universalism, on the other hand, defends the idea of shared ethical principles grounded in human dignity that should be respected across all cultures.

While both frameworks offer valuable insights, reconciling the two remains a central challenge in the ongoing development and enforcement of international human rights law.

D. Postmodernism: A Reaction to Modernism

Introduction

Postmodernism emerged as a critical response to Modernism, challenging its core assumptions about knowledge, truth, and social order. While modernism was a cultural and intellectual movement rooted in optimism about human potential, progress, and reason, postmodernism critiques this faith in universal truths, objectivity, and structured order.

Modernity aimed to build a rational, coherent society through organized, transparent structures guided by rules and objectivity. It emphasized human capacity to understand reality from a “neutral” standpoint—sometimes described as a god’s-eye view—and believed in the unity of all knowledge and the power of reason to arrive at truth.

However, postmodern thought developed out of disillusionment with these modern ideals. It is pessimistic, skeptical of universal knowledge, and recognizes a multiplicity of perspectives, where no single narrative or worldview can claim absolute truth. This shift led to the abandonment of neutrality, embracing diversity in interpretation and experience.

Modernism vs. Postmodernism

• Modernism:
  • Emphasizes objective knowledge free from emotion, tradition, or social bias.
  • Believes in institutions as autonomous entities facilitating human progress and control over nature and society.
  • Aims for rational order and universal systems.
• Postmodernism:
  • Emphasizes plurality of perspectives.
  • Challenges the idea of universal, objective truths.
  • Sees identities and institutions as socially and historically conditioned.
  • Views society not as harmonious but as shaped by power, domination, and hegemony.

Core Postmodern Perspectives

a) Anti-Foundationalism and Anti-Essentialism (Derrida)

• There is no single, fixed meaning in texts or concepts.
• Meaning is context-dependent, shaped by its difference from other concepts (differ) and its deferral across texts (defer).
• Derrida's concept of “différance” captures this: meaning is both produced by difference and delayed until understood in context.
• Example: The term "walk" differs from "stand" or "run," and gains contextual meanings like "morning walk," "walking out of exam hall," etc.

b) Plurality and Deference to the "Other"

• Knowledge is not grounded in essential truths.
• Postmodernism encourages feminist thought, critical race theory, and CLS (Critical Legal Studies) by recognizing suppressed voices and alternative truths.
• Emphasizes pluralism, stating that right and wrong are relative, and all perspectives have equal validity.

c) Death of the Subject (Foucault)

• The "subject" or individual is not fixed; identities are fluid and socially constructed.
• Individuals are shaped by their relationships with the “other.”
• A person can be both oppressor and oppressed in different roles, e.g., an upper-caste woman.

d) Centrality of Power (Foucault)

• Power is not concentrated in individuals or institutions; it flows through social and organizational networks.
• Power is exercised on people through structures and dominant ideologies.
• One’s role in an institutional network determines their ability to wield power, not personal identity.
• Example: An upper-caste woman may oppress someone in a caste hierarchy but be oppressed in a patriarchal structure.

Postmodern Jurisprudence

1. Deconstruction of Meta-Narratives

• Postmodernists reject grand historical or ideological claims, such as communism or liberalism as inevitable outcomes.
• They critique legal liberalism for presenting the existing legal order as rational and just, and portraying alternatives as chaotic or illegitimate.
• Thinkers like Schlag argue that mainstream theories (e.g., Hart’s secondary rules or Rawls’ original position) falsely present themselves as universally valid truths.

2. Centrality of Power in Law (Derrida)

• Derrida critiques Hart’s view that laws are accepted by society; he leans more toward Austin’s enforcement-based view, but focuses on the violence within enforcement.
• Legal systems originate in violence, often the outcome of revolution or imposition, suppressing dissenting perspectives.
• Dominant ideologies become law not due to moral superiority, but due to success in overpowering opposition.
• Legal interpretation and enforcement continue to suppress alternative voices, reinforcing the initial act of violence.

3. Deconstructing Justice

• Derrida argues that the phrase “justice according to law” is misleading.
• Since law itself is founded on violence, true justice—which requires attention to the unique context of each case—may demand disobedience of law.
• Law is general; justice is particular and singular, often contradicting legal mandates.

4. Death of Subject and Marginalized Voices

• Legal systems categorize people into fixed binaries (e.g., man/woman, citizen/non-citizen), which silences complex, overlapping identities.
• Postmodern jurisprudence calls for the recognition of multiple identities and insists on welcoming marginalized voices.
• Individuals exist across intersecting identities and experiences, and law must evolve to accommodate pluralism and diverse realities.

Conclusion: Key Themes in Postmodern Jurisprudence

• Rejects universal truths; embraces multiplicity and context-specific understanding.
• Encourages critique of dominant institutions, ideologies, and legal systems.
• Values alternative, marginalized, and suppressed voices.
• Warns against utopian visions (Marxism, capitalism) that silence dissent.
• Believes continuous critique is healthier for society than rigid ideological conformity.

📚 Alternative Lawyering – Detailed Notes

🧭 Introduction to Alternative Lawyering

Definition:
Alternative (or developmental) lawyering is a legal approach that primarily serves individuals, communities, and sectors who have been historically, economically, and culturally marginalized.

Also known as:

• Public Interest Law
• Social Justice Lawyering

Core Objective:
Goes beyond traditional legal services by actively addressing social, political, and economic inequalities and ensuring justice and equity for all.

🧩 Dimensions/Forms of Alternative Lawyering

1. Pro-Bono Lawyering
2. Public Interest Litigation (PIL)
3. Community Lawyering
4. Human Rights Advocacy

📜 Constitutional & Legal Framework in Nepal

🏛 Constitutional Provisions:

• Preamble – Ensures social justice.
• Article 20(2) – Right to legal representation.
• Article 20(10) – Free legal aid to indigent parties.
• Article 50(k)(1) – Justice must be speedy, efficient, cost-effective, and widely accessible.

🌍 International Commitments:

Nepal is a party to:

• Universal Declaration of Human Rights (UDHR)
• International Covenant on Civil and Political Rights (ICCPR)
• International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)

A. ⚖️ Pro-Bono Lawyering

📘 Meaning:

Derived from Latin "Pro bono publico", meaning "for the public good".
Legal services are offered free of charge by attorneys, judges, law students, and scholars.

🔍 Pro-Bono vs. Legal Aid:

⚖ Legal Provisions:

• Legal Aid Act, 1997 (2054 B.S.)
• Legal Aid Regulations, 1998 (2055 B.S.)
• Supreme Court Regulation, 2017 (Ch. 16)
• High Court Regulation, 2016 (Rule 157)
• District Court Regulation, 2018 (Rule 101)

Eligibility (Rule 6.1):
Annual income less than NPR 40,000
→ Controversial and arguably impractical

🔴 Problems with Legal Aid in Nepal:

• Lengthy & formal procedures
• Untrained, poorly supervised legal aid lawyers
• Lack of infrastructure
• Nepotism in appointment (Bar Association influence)
• Public unaware of legal aid rights
• Example case: Adv. Lilamani Poudel v. HMG et al., NKP 2060, DN 7241
  → Rule 6(2) barring legal aid for serious cases declared ultra vires

📰 Kantipur Report (Falgun 3, 2076):

• Widespread malpractice in legal aid system.
• Lawyers take salary without doing work.
• Legal aid often reduced to formality.

🟠 Emergence of Pro-Bono:

Due to failure of state legal aid, pro bono is now vital to ensure access to justice (A2J).

🧑‍⚖️ Role of Nepal Bar Association (NBA):

• Coordinates pro bono services with:
  • Norwegian Bar
  • European Commission
• Published Legal Aid Manual
• Operates under Pro-Bono Directive, 2075

Directive Highlights:

• Target Group: Helpless, disabled, minors, economically weak, detained people
• Services include: legal opinion, document prep, litigation, judgment execution.
• Application through court, NBA units, or law offices.

🏢 Other Institutional Efforts:

🖥️ Maintains:

• Pro bono lawyer roster
• Website for services
• Code of Conduct for pro bono lawyers (especially in TIP/foreign employment)

⚠️ Gaps:

• No mandatory provision for pro bono in the Professional Conduct Regulation, 2079 (2023)
• However, Directive on Judge Appointment counts pro bono work (Sec. 5(c))

🧷 ABA Model Rule 6.1:
Every lawyer should render 50 hours/year of pro bono service.

B. 🧑‍⚖️ Public Interest Litigation (PIL)

📘 Definition:

Litigation filed to protect public interest. Focus on justice, not winning.

🔍 Key Features:

• Expands Locus Standi (standing to sue)
• Focus on meaningful relationship with cause
• Involves community at large
• Petitioner, defendant, and court all share justice-oriented motive

📌 Landmark Example:

• Meera Kumari Dhungana v. PM (NKP 2058) – established PIL’s significance in Nepal

🧠 P.N. Bhagwati (India):
PIL as a tool for humanitarian reform and upliftment of weaker sections.

C. 🏘️ Community Lawyering

📘 Definition:

Lawyers embedded in communities to offer legal empowerment.

🧰 Tools:

• Legal advocacy
• Legal awareness campaigns
• Grassroots mobilization
• Clinical legal education programs (law schools + community)

D. 🌍 Human Rights Advocacy

📘 Definition:

A focused form of lawyering to protect human rights at local and global levels.

🧰 Mechanisms:

• Litigation
• Documentation & reporting
• Outreach & education
• Policy advocacy

📜 Instruments Used:

• UDHR
• ICCPR
• CEDAW
• CAT, etc.

📌 Summary