Political Concepts

Law, Concept, and Sources

Concept of Law

• Laws are divided into natural and man-made.
• Natural Laws: Laws of gravity, motion, and transformation.
• Austin: "Law is the command of a sovereign or ruling class."
• Wilson: "Law is established thought or habit recognized as a general rule, enforced by government power."
• Duguit: "Law is an expression of society’s needs."
• Laski: "Law is an element inherent in individual consciousness, not just a sovereign’s command."
• Holland: "Law is a general rule of human external behavior enforced by supreme political authority."
• Ancient times: Customs and traditions were primary sources; modern times include legislation.

Essential Elements of Law

1. Rules enforced by a sovereign authority.
2. Govern human behavior.
3. Apply to all activities within the state’s jurisdiction.
4. Concerned with external conduct, not internal thoughts.

Rule of Law

• Supremacy of law and governance based on law.
• All actions are legally grounded.
• Formal in nature, linked to natural law.
• Ensures impartiality, justice, and freedom.
• Dicey’s Three Meanings:
  1. Absence of arbitrary power.
  2. Equality before the law.
  3. Constitution as a product of general laws.

Sources of Law

Classified into formal and informal sources.

a) Formal Sources

1. Constitution:
   • Fundamental law of the country.
   • Allocates state powers, ensuring balance and control.
   • Charter of citizens’ rights, basis for law-making.
2. Legislation:
   • Acts or statutory laws created by representative institutions.
   • Invalid if conflicting with the constitution.
3. Rules and Regulations:
   • Created under Acts to implement provisions.
   • Provide detailed procedures.

b) Informal Sources

1. Customs:
   • Oldest and significant source.
   • Conditions for legal status:
     1. Antiquity.
     2. Continuous use.
     3. Reasonableness.
     4. Consistency with public policy.
     5. Obligatory/voluntary compliance.
     6. Unhesitant use.
   • Wilson: "Customs are the ancient foundation of law."
   • UK’s unwritten laws: Common Law.
2. Judicial Precedents:
   • Judicial principles from court rulings.
   • Influence future cases, indirectly contribute to law-making.
3. Religion:
   • Anciently, religion and texts were law.
   • Offenders punished as anti-religious.
   • Modern examples: Hinduism (Manusmriti, Vedas), Islam (Quran, Ayatollah Khomeini), Christianity (Bible, Pope John Paul).
4. International Treaties.
5. Scholarly Opinions: Research conclusions by jurists.

Sources of Law in Nepal

1. Constitution.
2. Legislation (Acts and delegated regulations).
3. Customs, traditions, practices.
4. Scholarly opinions.
5. International treaties and conventions.

Sovereignty: Concept

• From Latin superanus (supreme power).
• Supreme state authority, free from external control or legal limits.
• Bodin: "Supreme power over citizens, uncontrolled by law."
• Grotius: "Political power not subject to another’s control."
• Laski: "Distinguishes the state from other communities."
• Burgess: "Original, absolute, unlimited power above all."
• Blackstone: "Supreme, irresistible, absolute authority."

Characteristics of Sovereignty

1. Absoluteness: Free from control.
2. Permanence: Unaffected by government changes.
3. Universality: Present everywhere in the state.
4. Inalienability: Cannot be transferred.
5. Indivisibility: Cannot be divided.
6. Non-abandonment: Inseparable from the state.

Types of Sovereignty

1. Nominal Sovereignty: Held by head of state/government (e.g., UK, Japan monarchs).
2. Popular Sovereignty: Governance by people’s will.
3. Political Sovereignty: Unlimited power in the legislature.
4. Legal Sovereignty: Authority to make laws and issue orders.
5. De Jure Sovereignty: Power in the legally recognized authority.

Liberty and Equality

Liberty

• From liberty, meaning freedom from bondage.
• Popularized during the French Revolution of 1789.
• J.S. Mill: "Self-sovereignty of an individual."
• Includes freedom from social, political, economic constraints.
• Seeley: "Opposite of excessive governance."
• Laski: "Power to choose life’s path without obstacles."
• Rousseau: "Man is born free but is everywhere in chains."
• Barker: "Absence of constraints hindering human development."

Types of Liberty

1. Natural Liberty: All humans are born free and equal (Hobbes, Locke, Rousseau).
2. Civil/Social Liberty: Rights like life and property security.
3. Political Liberty: Voting, forming parties, contesting elections.
4. Economic Liberty: Earning wealth, fair wages, no unemployment.
5. National Liberty: Unity in language, religion, culture for an independent nation.
6. Religious Liberty: Freedom to practice religion.
7. Moral Liberty: Promoting ethical development.

Liberty in Nepal’s Interim Constitution 2063

Article 12:

1. Right to live with dignity; no death penalty laws.
2. No deprivation of personal liberty except by law.
3. Citizens’ freedoms:
   1. Opinion and expression.
   2. Peaceful assembly without arms.
   3. Forming political parties/organizations.
   4. Forming associations/institutions.
   5. Movement and residence in Nepal.
   6. Engaging in profession, employment, industry, trade.

Equality

• Laski: "No discrimination based on race, caste, gender, profession; equal opportunities for all."
• Nehru: "Equal opportunities for personal development."

Types of Equality

1. Civil Equality: Equal treatment before the law.
2. Social Equality: No discrimination based on caste, religion, profession, gender.
3. Political Equality: Equal rights to participate in governance.
4. Economic Equality: Equal wealth distribution, access to basic needs.
5. Religious Equality: Freedom to practice religion without state favoritism.
6. Natural Equality: All are equal by nature.

Equality in Nepal’s Interim Constitution 2063

Article 13:

1. All citizens equal before the law, entitled to equal protection.
2. No discrimination in general laws based on religion, race, gender, caste, origin, language, ideology.
3. State shall not discriminate on above grounds.
4. No discrimination in wages or social security between men and women for similar work.

Political Culture: Concept and Types

Concept of Political Culture

• Beliefs, attitudes, and values toward politics.
• Developed post-World War II.
• Collective representation of trust, values, behavior.
• Involves psychological and sociological analysis.
• Almond: Developed the concept.
• Almond: "Every political system has an orientation pattern."
• Encompasses values, beliefs, emotional ideals.

Determinants of Political Culture

1. History: Shaped by struggles and revolutions.
2. Geo-political Situation: Geographical context.
3. Socio-economic Conditions: Affect power exercise.
4. Ideology: Influences through theories and philosophies.

Types of Political Culture

Per Almond in The Civic Culture:

1. Parochial/Traditional: Awareness limited to local community.
2. Subject: Aware of government but unaware of influencing policy.
3. Participatory: Equal participation in all political processes.

Political Socialization

• Shapes and sustains political culture.
• Continuous process influenced by societal experiences.
• Almond and Powell: "Maintaining or changing political culture."
• Levine: "Fostering values, habits, motivations for participation."
• Hyman: First used the term.

Agents of Political Socialization

1. Family: First learning environment; shapes active or passive roles.
2. Educational Institutions: Opportunities for decision-making participation.
3. Peer Groups: Encourage shared beliefs and behaviors.
4. Work Experience: Professional organizations provide political training.
5. Mass Media: Inform and shape socialization; can be authoritarian (Pye).
6. Political Parties: Bring individuals into political activities.
7. Religious Institutions: Some provide political discourse.
8. Social Organizations/Pressure Groups: Empowerment programs influence socialization.

Additional Notes

• UK’s unwritten laws: Based on conventions.
• Wilson: Customs as legal foundation.
• Dicey: Propounded Rule of Law.
• Sovereignty: Soul of the state.
• Bodin: First used sovereignty in modern times.
• J.S. Mill: Sovereignty as law-making authority.
• Popular Sovereignty: Developed in 16th-17th centuries.
• De Jure Sovereignty: Legitimate supreme ruler.
• Public Administration: Bureaucracy.
• Scalar Chain: Hierarchy of positions.