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).

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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?

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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

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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).

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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.

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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

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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.

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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).

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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.

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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).

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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.”

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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
<http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf>. 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.”

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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.

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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
<http://www.lis.ulusiada.pt/old/eventos/reuniaocde/docs/reuniao_cde/documento_sobre/040501_15.pdf>;
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.

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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.

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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

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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).

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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).

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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);

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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).

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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.

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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. Therefore, laws are classified as substantive and procedural laws. Substantive
law is a body of law that defines, creates, and regulates rights and duties. Procedural law defines
the methods, including the jurisdiction, by which the law can be enforced as to the rights
defined by substantive law. In short, procedural law is a law of remedy. However, it is often
admitted that there is a close connection between procedural and substantive laws. For
example, a right to appeal or a right to produce evidence before a court might fall into the
sphere of both procedural and substantive laws. Rules that define remedies may be as much a
part of the procedural law as are of those that define the right itself. The law of procedure may
be defined as that branch of the law, which governs the process of litigation. It is the law of
actions including all legal proceedings: civil, and criminal. The entire residue is substantive law.
Substantive law relates not to the process of litigation, but to its purposes and subject matter.
Substantive law is concerned with the ends, which the administration of justice seeks.49
1.6.5 Based on Hierarchy
Laws can be classified based on hierarchy. The hierarchy of law indicates to the ranks of the
authority of laws. For example, a constitution is considered the highest body of law at the
domestic level. All other laws emanate from the authority of the constitution. The hierarchy of
law has been discussed under heading 1.3 above.

1.7 Domestic and International Law

Domestic laws are enacted by the legislature at the domestic level. International laws are created
with the consent of states through a process of negotiations. In short, domestic laws are
composed of a constitution, statutes, rules, and regulations. International laws are composed of

                                                                                                                       
49. See P. J. FITZGERALD, SALMOND ON JURISPRUDENCE 461-462 (Sweet & Maxwell, 12th ed. 1966).

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treaties. Often, treaties are named in a variety of ways, such as: a convention, a covenant, a
protocol, an agreement, etc. International laws influence reform and change in domestic legal
systems. The experience and practices developed by domestic legal systems also influence the
development of international laws.
On occasions, especially in the past, even prominent jurists denied international law
recognizing as a valid body of law. Because of the lack of an enforcement mechanism in place
at the time, they regarded international law as merely a positive morality. In recent times, a
number of mechanisms are available to enforce the international law, making it more similar to
domestic laws, in that regard. Thus, a substantial change has taken place in the nature of the
international law.
Domestic laws are enacted by the parliament, enforced by the executive body, and
interpreted by the judiciary. It is argued that international law does not have all of the features
available to domestic law. In fact, in the creation of international law (treaties), one is reminded
of the legislative process at the domestic level, as the representatives of states negotiate and
conclude international rules with a proper authority derived from their respective governments.
The process of treaty negotiation closely resembles the parliamentary process. The executive
body at the domestic level enforces domestic laws; executive bodies in their respective domestic
jurisdiction enforce international laws too. In some cases, for example, under the WTO, and
International Criminal Court (ICC), certain mechanisms are developed to enforce international
laws through the international apparatus. As the judiciary at the domestic level interprets
domestic laws, so do the international courts and tribunals at the international level. These
features remind us of the fact that international law is growing like the body of positive law
seen at the domestic level.
Despite these developments, the monist and dualist perspectives on international law are
still in vogue. Monists consider that by being a party to a treaty, the treaty forms a part of the
domestic legal system; and comes into force ipso facto. In other words, no special legislative act is
necessary to give effect to a treaty. Judges can interpret and directly implement international law
as a domestic law. Moreover, a judge can declare a domestic law invalid, if the domestic law
contradicts to the international law. For example, in Germany, treaties have the same legal
effect as domestic law. In fact, a treaty will have precedence over domestic law if the treaty is
posterior to the domestic law. In the Netherlands, a Dutch citizen can go to domestic court to
enforce human rights enshrined in international conventions. A Dutch judge is required to
apply international law, even if it is not in conformity with Dutch law. In Nepal, ratified
international treaties form a part of the enforceable body of laws having prevalence over
domestic law. Under Article 73 of the Constitution of Japan, 1947, when the Executive Body
concludes a treaty and depending on circumstances, it shall obtain prior or subsequent approval
of the Diet, the treaties are binding as domestic laws.
Dualists consider that international law does not form a part of domestic law unless it is
translated into domestic legal system through a legislative process. A judge at the domestic level
is supposed to give effect to international law when the parliament develops a mechanism
through a legislative process to give effect to the international law at the domestic level.
Without the parliamentary mechanism, international law does not exist as the law at the
domestic level. If a state accepts a treaty, but does not adopt its national law in order to

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conform to the treaty or does not create a national law incorporating the treaty, it may violate
international law. Nevertheless, one could not claim that the treaty has become a part of
national law. Judges cannot apply such international laws at the domestic level. National laws
that contradict with the international law remain in force. According to dualists, judges should
apply only those international laws that have been translated into national law. The Medellin
case 50 decided by the U.S. Supreme Court highlights one of the dualist approaches to
international law.
The question in the Medellin case was whether a judgment in the Avena case by International
Court of Justice (ICJ) was enforceable as a part of the domestic law or, rather, would it require
further domestic legislation to be enforceable. In its decision, the U.S. Supreme Court held that
while a treaty might constitute an international commitment, it was not binding domestic law
unless the Congress had enacted statutes implementing it or the treaty itself conveyed an
intention that it would be “self-executing” and was ratified on that basis. The Avena judgment
by the ICJ had created an international law obligation on the part of the United States of
America, but the decision by the ICJ was not an automatically binding domestic law because
none of the relevant treaty sources had created binding federal law in the absence of
implementing legislation and no such legislation had been enacted.
Nevertheless, international law and its implementation is gaining a much more important
place in the legal landscape than ever before. The wave of globalization has uniquely unleashed
the possibilities for stronger rules-based international cooperation. The changing landscape of
legal systems is discussed in Chapter 14: Law, International Relations, and Globalization.

1.8 Summary
§ Any standard that is legitimate, valid, and enforceable is law.
§ Law is enacted by the parliament through a legislative process. The judiciary interprets
law and establishes precedent as law. The Executive Body creates Rules and Regulations
under the authority of delegated legislation. Individuals also create law through the
instrument of contract. International law is created through the treaty-making process.
In short, law can be domestic, as well as international.
§ There are different schools of thought that explain the nature of law from different
perspectives. Their explanations are important in understanding the dynamics of law.
§ Law has interdisciplinary character. It covers almost all disciplines in society. For
example, the scope of law ranges from the constitution to business and stem cells.
§ Unlike early thinking about international law, today, international law is playing a
catalytic role espousing a demand for compatibility of domestic laws with the
international legal order. This conspicuous response is expected to lead the process of
harmonization of domestic laws of different countries with the standards of
international law.

                                                                                                                       
50. Jose Ernesto Medellin v. Texas, 552 U.S. 491 (2008).

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§ Law is gradually moving from a local to global scale, at least in some of the important
sectors such as human rights, international trade and business, and the protection of
environment, among others. For example, because of the WTO rules, at least to a
limited scale, trade laws of different countries are moving towards adopting almost
similar standards and rules of international law at domestic levels.

1.9 Further Reading

1. Robert Alexy, On the Concept and the Nature of Law, 21 RATION JURIS 281-299 (2008).
2. JOHN CHIMPAN GRAY, THE NATURE AND SOURCES OF LAW (New Orleans, Quid Pro,
LLC, eBook 2012).
3. RONALD DWORKIN, LAW’S EMPIRE (Hart Publishing, 1998).
4. 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).

5. P. J. FITZGERALD, SALMOND ON JURISPRUDENCE (Sweet & Maxwell, 12th ed. 1966).

6. H. L. A. HART, THE CONCEPT OF LAW (Clarendon Press, 2nd ed. 2002).
7. HANS KELSEN, GENERAL THEORY OF LAW AND STATE (The Lawbook Exchange Ltd.,
2009).
8. Andrei Marmor, The Nature of Law: An Introduction, in THE ROUTLEDGE COMPANION TO
PHILOSOPHY OF LAW (Andrei Marmor ed., New York, Routledge, 2012).
9. ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW (Yale University Press,
4th printing 1930/1922).
10. JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION (Oxford University Press,
2009).
11. JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY (Oxford
University Press, 2nd ed., 2009).
12. ALF ROSS, ON LAW AND JUSTICE (London, Stevens & Sons Limited, 1958).

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