Unit 1

Importance of legislation

Defining Legislation

• a law or set of laws suggested by a government and made official by a parliament ( Cambridge
Advanced Learner's Dictionary & Thesaurus © Cambridge University Press)

• Parliament is the legislative arm of government. The term "legislation" refers to laws (called Acts
or Statutes) enacted by parliament. There is also subordinate legislation (e.g. Regulations or
Rules), where parliament delegates its law-making powers to other bodies (e.g. the Governor-in-
Council).
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• Legislation (or “statutory law”) is law which has been produce by a governing body in order to
regulate, to authorize, to sanction, to grant, to declare or to restrict.

Why Legislation?

• Legislation will be required or chosen for the implementation of a policy if:

✓ existing rights and obligations are to be modified

✓ the policy is to have long term operation

✓ the policy is of a very high level of importance.

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ation.aspx)

• Only legislation, properly authorized and made, can unilaterally create or change rights and
obligations of citizens generally, or change or affect the operation of the general law.

Tom Head Talks about Five principles behind the enactment of laws, in fact these are the reason for
formulating laws:

✓ Harm Principle: Laws created under the Harm Principle are written to protect people from being
harmed by others. Laws against violent crime and property crime fall into this category.

✓ The Parental Principle: some laws are written to prohibit self-harm. Parental Principle laws
include compulsory attendance laws for children, laws against neglect of children and vulnerable
adults, and laws banning the possession of certain drugs.

✓ The Morality Principle: Some laws are based not strictly on harm or self-harm concerns, but also
on promoting the personal morality of the law's authors. These laws are usually, but not always,
grounded in religious belief.

✓ The Donation Principle: All governments have laws granting goods or services of some kind to
its citizens. When these laws are used to control behavior, however, they can give some people,
groups, or organizations unfair advantages over others.
 ✓ The Statist Principle: The most dangerous laws are those intended to protect the government
from harm, or to increase its power for its own sake. Some Statist Principle laws are necessary--
laws against treason and espionage, for example, are essential to the stability of government.

Few Questions…

• Why Studying legislative Principles and law making process?

• How many of you think legislative drafting (including the draft of statutes, rules, bylaws,
policies) can be a profession? Is that a lawyers task?

• So far how many statutory laws, rules, policies you have encountered, studied, analyzed,
interpreted? If so have you ever thought who drafted them?

• Studying laws so far does legislative drafting and law making process attract you?

• Does drafting of laws are the sole job of the legislators, parliamentarian?

• SOME REALITIES

• Constructing a legally sound, coherent legislative document is not as simple as it seems.

• In addition to good writing and compositional skills, the drafter must have an understanding of
the legislative process and of the impact and effectiveness of legislation.

• These skills are not often taught in law school or learned in law practice.

• A well-constructed, well-written draft can ease the passage of proposed legislation through
parliament and facilitate its faithful interpretation by courts.

• Skilled legislative drafting contributes to that elusive, desirable combination of peace and good
government.

Legislation

Definition

• According to Sir Henry Maine, “legislation is the last ameliorative agency of social reform and
social change after legal friction and equity”.

• Legislation in its popular and non-technical sense means the enactment of legislature- whether
it takes the form of an autocratic prince or of a democratic parliamentary assembly.

• In other word legislation is the making of law or creating of new legal norms by a formal and
express declaration by some legislative authority (law making authority), which should not be
unconstitutional.

• In the technical narrow sense of the term means a statute which is enacted by a legislative
organ.

• However, legislation in the widest sense means to make new rules for human conduct and
includes executive fiat, judicial legislation and parliamentary legislation.
 • Even in United Kingdom the legislative powers were not exclusively exercised by the parliament.
Side by side executive head in the form of Ordinances and Royal Proclamation use to exercise
it.

• In Indian by Art. 123, 213 and 357 of the Constitution, the President and the Governors of the
various states have been given authority to make law for the state.

• In Nepal by the Constitution, the President on the recommendation of a Council of Ministers can
promulgate ordinance (legislation).

• Austin, therefore is incorrect when he observes that, ‘there cannot be legislation without a
legislative act’.

• As his definition of law is incorrect so his concept of legislation is out dated in the 20th century.

Two types of Legislation

1. Supreme Legislation

• SALMOND defines: “supreme legislation proceeds from the supreme or sovereign power in the
state, and which is therefore incapable of being repealed, annulled or controlled by any other
legislative authority”.

• Supreme legislation is one and parliament has the supreme authority.

• It cannot be repealed, annulled or controlled by any other legislative authority, except

parliament.

Introduction to Parliament

• Parliament comprises only one institution which all have a role to play in the legislation process:

❖ The Constituent Assembly (elected MPs who are members of the government
and opposition parties)

Types of bill

• An idea for a new Act of Parliament starts its journey through the legislation process as a bill. A
bill is a draft law. There are three types of bill:

• private bills

• public bills

Legislation process (1)

• A bill must pass through seven stages in Parliament before it becomes an Act:

• first reading

• second reading

• committee stage
 • report stage

• third reading

• House of Lords

• President assent

2. Subordinate Legislation (Delegated Legislation)

• SALMOND defines: “subordinate legislation is that which proceeds from any authority other
than the sovereign power, and is therefore dependent for its continued existence and validity
on some superior or supreme authority”.

• Subordinate legislation is of several kinds. All other forms of legislative activity recognized by the
law, like executive fiat, case law are subordinate legislation.

• It can be repealed, annulled or controlled by parliament.

Introduction to delegated legislation

Parliament does not have the time or the expertise to pass every law that is required each year.

It is therefore necessary for it to give some of its power to other people and organisations to make
laws.

Parliament gives this power in an enabling Act.

Types of delegated legislation

There are three main types of delegated legislation:

bylaws

statutory instruments

Orders in Council

Bylaws

Bylaws are made by local councils and other public bodies.

For example, a local council might wish to ban drinking in its town centre. Another example would be
the fines incurred by people who let their dogs foul in public parks.

Public corporations, such as the bus and train services, are able to impose fines for non-payment of
fares.

Statutory instruments

Statutory instruments are regulations made by government departments to implement the provisions
made in Acts of Parliament.
For example, the Department of Constitutional Affairs can make changes to the provision of legal aid
under the Legal Aid Act 1998.

Orders in Council

Orders in Council are laws passed by the Privy Council, which is a group of senior politicians who are
allowed to make law without the need for the whole of Parliament to be sitting.

The Privy Council has the power to pass laws in times of emergency with the permission of the queen
under the Emergency Powers Act 1920. It may do this in wartime.

Controls on delegated legislation

. general supervision of delegated legislation

. parliamentary supervision of delegated legislation

. court supervision of delegated legislation

General supervision

Enabling Act: the enabling Act sets out the powers that Parliament wishes to delegate.

Consultation: the enabling Act may specify that certain organisations or experts must be consulted
before delegated legislation is made.

Publication: all delegated legislation is published and made available for interested parties to read.

Parliamentary supervision

. All bylaws are checked by the relevant government minister.

. All statutory instruments are scrutinised by a group of

. MPs known as a select committee.

. Affirmative resolution procedure -requires some statutory instruments to be voted on by Parliament.

. Negative resolution procedure - means that most statutory instruments become law unless a debate is
requested by a Member of Parliament (MP).

. Question time - Government Ministers are accountable and can be questioned by Parliament

Court supervision

Judicial review

Under judicial review, an organisation or member of the public may challenge a piece of delegated
legislation in the High Court.

The judge will interpret the wording of the enabling Act to decide whether the law was made ultra vires
(beyond the powers granted by Parliament). If the legislation is found to be ultra vires, it will be declared
void.
Substantive ultra vires: delegated legislation will be declared void if it allows something that the
enabling Act did not intend, e.g. Commissioners of Customs and Excise v Cure and Deeley (1962), or if the
law made under the enabling Act is ‘unreasonable’ (‘Wednesbury unreasonableness’).

Procedural ultra vires: the enabling Act may set out certain procedures that must be followed before
delegated legislation can be passed, e.g. Agricultural, Horticultural and Foresty Training Board v
Aylesbury Mushrooms Ltd (1972).

Advantages of delegated legislation

It saves time. Parliament is only able to pass about 50 Acts of Parliament per year. It is therefore vital for
it to delegate power to make the thousands of other necessary laws.

It is flexible. Delegated laws can be passed more quickly if they are not required to go through the
official legislation process.

It is made by experts.

Disadvantages of delegated legislation

It is undemocratic because it is made by unelected

people rather than by Parliament.

The sheer quantity of delegated laws made each year

makes it difficult for the public to be informed of all

the changes to the law.

Although there are controls and checks for delegated

legislation, the large quantity makes it difficult for

proper scrutiny to occur.

Legislation and other Sources

• In modern technological societies new problems of complex character have emerged which
need urgent answers to satisfy human needs and human wants. This can be done quickly and
peacefully through legislation.

• Custom takes generations to emerge. Customs are neither coherent not definite nor clear nor
precise nor a convenient instrument of social change.

• Likewise, Judicial Precedents are equally uncertain and so not represent the will of the people in
question.

• Traditionally both custom and judicial precedent lag behind social needs and fail to meet them.

• Hence legislation is the only course left to meet the needs of society.
 • Oliver Wendel Holmes rightly observes ‘Legislation of today is to meet the social needs of
yesterday’.

Ordinance

Constitution Of Nepal, 2072

Art. 114. Provisions relating to Ordinance:
(1) If, at any-time, except when both Houses of the Federal Parliament are in session, circumstances exist
which renders it necessary to take immediate action, the President may, on recommendation of the Council
of Ministers, promulgate an Ordinance.
(2) An Ordinance promulgated under clause (1) shall have the same force and effect as an Act. Provided
that every such Ordinance:
(a) shall be tabled at the session of both Houses of the Federal Parliament held after the promulgation, and
if not passed by both Houses, it shall ipso facto cease to be effective,
(b) may be repealed at any time by the President, and
(c) shall, unless rendered ineffective or repealed under sub-clause (a) or (b), ipso facto cease to be effective
at the expiration of sixty days after the day on which a meeting of both Houses is held.
Explanation: For the purposes of this clause, "day on which a meeting of both Houses is held" means the
day on which a session or meeting of both Houses of the Federal Parliament commences or is held, and this
term means the later day on which a meeting of the House is held if the Houses of the Federal Parliament
meet on different dates.

Unit 2

Use of Legislation as a State’s Tool of Power on people in Autocracies

Autocracy

 The word “autocracy,” the opposite of democracy, comes from the Greek words: “autos”
meaning “self” and “kratos” meaning “power.”

 Jean Baptine Rascine (1639-1699) (French Play Writer), “Autocrat are tired of making
himself/herself loved, he want to make him/herself feared.”

 In simple tone, an autocracy is a system where the ruler rules the people with too much
accumulation of the power, or there is no kind of limits on abuse of power. Autocracy signify
lacking of people’s representation or participation in the governance process.
  Autocracy in general implies an ideology or concept of regime ‘which tends to or rule by
accumulation of power without being accountable to people’. People are subjected to the
authority of the state.

 Despotism: Autocracy might be imposed by a single person or a group. When a singular

authority –either a single person or tightly knit group-which rules with absolute power is know
as “despotism”.

Despotism implies tyrannical rule; it suggest a form of government which exercises exacting and near
absolute control over all its citizens.

 Dictatorship: Dictatorship is a government headed by a dictator or more generally any

authoritarian or totalitarian government. It is often equivalent to a police state, but the term
dictator refers to the way the leaders gain and hold power, but not the watch kept on the
people.

 Police State: A political condition where the government maintains strict control over society,
particularly through suspension of rights and often with use of a force of secret police.

 Totalitarianism: Totalitarianism is any poetical system in which a citizen is totally subjected to

state authority in all aspects of day-to-day life. It goes well beyond dictatorship of typical police
state measures, and even beyond those measures sustain total war with other state. It involves
constant brainwashing achieved by propaganda to erase any political for dissent, by anyone,
including most especially the state’s agents.

 Authoritarianism: The term authoritarianism is used to describe an organization or a state

which enforces strong and sometimes oppressive measures against population. This is
distinguished from totalitarianism both by the degree and scope, authoritarian government
being less intrusive and in organization not necessarily backed by the force.

 Benito Mussolini (1883 - 1945) (Italian dictator), ‘For me fascism is not an end in itself. It was a
means to re-establish national equilibrium’.

 Autocracy is the political system under which ruler wields self appointed, unlimited power,
restricted by no constitutional provisions and no effective political opposition.

 The autocrat need some kind of power structure to rule, like laws (legislation)-mostly martial
laws.

Legislation is Used to Rule People

 Law is effectively used to:

1. Remove the limits of power, and prevent abuse of power. Legislation in such regime is used to
empower the rulers to accumulate powers or authority.

2. Restrict the people to dissent. People rights to freedom of speech and assembly is restricted or
marginalized.
 Autocratic Legislation

 Without any legal authority no state authority either autocrat are entitle to run its governance.

 But this may not had been happened in ancient period but it is must in modern era that there
need to be of any legal authority to establish themselves as a ruler. Because of it, they use
legislation (law) as their weapon to establish themselves as ruler.

Example

 Nepal:

King Gyanendra dismissed Deuba, dissolve parliament and assumed full power over the
government, based on Art 127 of Nepalese Constitution 1990. After taking over the government
he introduced different legislation to banned on mass communication.

 Europe:

Between 1925 and 1931, The Fascists consolidate power through a series of Martial laws
that provided a legal basis for Italy’s official transformation into a single-party state.

Nazi government issued Nazi style of law name “anti- Semitic Laws”. These new laws
denied that Jews being German and was used totally against the Jews by Hitler.

 These all events proves that autocrat use the legislation as tool to improve their autocracy. By
using law they can pronounce any activity which is against them as illegal.

 Legislation is the effective instrument to govern the society in autocracy. This is an important
tool as compare to other law making bodies. In autocracy the legislation is made to fulfill the
interest of elite.

Features of Autocratic Legislation

A. Control of freedom of speech and information (mass communication)

 By virtue of the monopoly of mass communications the ruling party and the government are in
possession of all channels through which people receive information, guidance, censorship and
direction.

 All writers, speakers, actors, composers, and poets are enrolled in party-controlled
organizations, and they are licensed by the government.

 Attack over Kantipur and other FM station under King Gyanendra regime based on
communication ordinance.

B. Secret Police or Military Force

 The totalitarian secret police employs institutions and devices such as the concentration camp,
predetermined trials, and public confessions against opposition or revolution.

 The Taliban religious police enforced the new rules and punished anyone found disobeying.
They inflicted many of the punishments on the spot, usually ruthlessly, without offering the
 offender any sort of judicial hearing. The Taliban allowed public beatings and stoning,
sometimes fatal, of women who violated the dress code or were escorted by men not related to
them. Any person found not praying at the required times was imprisoned.

C. Control of Armament

 The monopoly of all effective weapons of destruction is an attribute of all contemporary

governments.

 Popular revolutions that occurred in East Germany (now part of the United Federal Republic of
Germany) in 1953 and in Hungary in 1956, have scant prospects of success. Tanks,
flamethrowers, jet airplanes, and other weapons provide the totalitarian dictators with strong
defense against revolution.

D. Control of the Economy

 The centrally controlled economy enables the dictator to control the hard working population
and make them dependent on the government.

 All private organizations of business, labor, and agriculture, as well as education and culture,
were subjected to Hitler’s Nationalist Socialist Party control and direction.

E. Force Migrant, Refugee or Political Assylum

 Powerful dictators order the deportation of large masses of the apposition population from
their homes to other, usually distant, parts of the national domain.

 Union of Soviet Socialist Republics (USSR) in the 1930s, for example, millions of peasants,
denounced by the government as enemies of the state, were sent to “corrective” labor camps in
Siberia

 Jigme Singye Wangchuck of Bhutan, introduce chhokey (Tibetian Script) which were coercive to
were kira dress for women and gho dress for men. Dzongkha language are to be spoken
compulsorily. Those Nepali origin Bhutanese whoever opposed were exile from the Bhutan.

F. Academic Freedom

 Education is the process by which society deliberately transmits its accumulated knowledge,
skills and values from one generation to another which may create a situation of rebellion
against the autocrat. Therefore they curve academic freedom.

 Educators in Italy were forced to pledge support to the Fascist regime. Similar restrictions,
including the teaching of racist theories in some fields, were enforced in German universities
under national socialism.

G. Freedom of Assembly

 In contrast, most totalitarian governments orchestrate public gatherings to demonstrate

enthusiasm for the regime.
  In the late 1930s German dictator Adolf Hitler organized huge rallies and torchlight parades in
numerous German cities to generate support for his policies. Other demagogues, including
Italian dictator Benito Mussolini similarly utilized the power of mass gatherings.

H. No Separation of Power

 All power are vested and exercised by ruler themselves. In all area there is possibility of abuse of
authority.

 Royal Commission set by Gyanendra, which used to file case by own initiative and investigate by
the same body and also implementation or enforcement by the same one.

 Hitler consolidated legislative, executive, judicial, and military authority and then assumed that
authority himself.

I. No rule of law but rule by law

 Rule of law is a general legal maxim according to which decisions should be made by applying
known principles or laws, without the intervention of arbitrary discretion of ruler in their
application. But it is usually absent in autocratic regime.

 Zhao Ziyang of China in 1987, Hundreds of unarmed civilians were killed and many more were
jailed, when student demonstrated against martial law at Tiananmen Square.

J. Individual right aren’t respected

 Every individual, a right is the moral sanction of a positive—of his freedom to act on his own
judgment, for his own goals, by his own voluntary, uncoerced choice.

 As autocrats may impose obligations on them of a negative kind like to abstain from their
individual liberty if they revolt against regime.

 The Taliban in Afganistan banned music and dancing, shut down movie theaters and television
stations and destroyed public works of art that depicted living beings.

K. Public opinion is not considered

 The rapid spread of public opinion measurement around the world is reflection of the number of
uses to which it can be put.

 Legislative have increasingly found surveys to be useful tools for guiding their public information
and propaganda programs and occasionally for helping in the formulation of law but autocrat
totally rejects it.

To summarize:

Features of Legislation in Autocracy

 Prescriptive: Legislation prescribes the duties for people to support the ruler without any
question.
  Regulatory: Legislation is regulatory, so that behaviors of all people are strictly regulated,
deviation being punishable.

 Punitive: Legislation is punitive for violation of the prescription or regulation.

 Centralization of power: Governance power is centralized. The devolution of the power is

effectively negated. Centralization of power weakens the authority of the Parliament, the law
making body.

- Legislation is abstract and ambiguous or maintains possibility double standard.

- Legislation empowers executive for rule making through regulation or ordinance or bye-laws.

- Legislation provides absolute power for interpretation of the statute.

Conclusion

 Totally closed system of governance or legislation/law is found in autocratic regime. An

autocratic regime ignores to other and works for the ruler’s interest. They don’t prefer any kind
of intervention or support on any matters from international level.

 Autocracy moves toward elite power by use of legislation as their weapon. They impose
obligation on people.

Use of Legislation as a state’s tool of power on people in autocracies (Draft)

Conceptual Framework

The power and strength of government come from the people in a democracy. The word “democracy”
comes from two Greek words: “demos” meaning “people” and “kratos” meaning “power” or “authority.”
The Nepal has a democracy.

Some countries have autocratic governments. The word “autocracy,” the opposite of democracy, comes
from the Greek words: “autos” meaning “self” and “kratos” meaning “power.” In an autocratic government,
one person or group holds all the power, without the participation, or sometimes even the consent, of the
people. Autocracy is a form of government in which the political power is held by a single
self-appointed ruler who holds all the political power. In a democracy, the extreme control
is held by the people under a free electoral method.

An autocracy is a form of government in which one person possesses unlimited power[1]. An autocrat is
a person (as a monarch) ruling with unlimited authority[2]. The term autocrat is derived from the word
autokratōr (αὐτοκράτωρ, lit. "self-ruler", or "one who rules by himself"). Compare with oligarchy ("rule
by the few") and democracy ("rule by the people"). Today the term autocrat is usually understood as being
synonymous with despot, tyrant and dictator, although each of these terms originally had a separate and
distinct meaning.

Autocracy is not synonymous with totalitarianism, as the latter concept was forged in 1923 to distinguish
modern regimes from traditional dictatorships. Nor is it synonymous with military dictatorship, as these
often take the form of "collective presidencies" such as the South American juntas. However, an autocracy
may be totalitarian or be a military dictatorship.
The term monarchy also differs in that it emphasizes the hereditary characteristic, though some Slavic
monarchs, specifically Russian Emperors traditionally included the title "autocrat" as part of their official
styles. This usage originated in the Byzantine Empire, where the term autokratōr was traditionally
employed in Greek to translate the Latin imperator, and was used along with Basileus to mean "emperor".
This use remains current in the modern Greek language, where the term is used for any emperor (e.g. the
Emperor of Japan), regardless of the actual power of the monarch. Historically, many monarchs ruled
autocratically but eventually their power was diminished and dissolved with the introduction of
constitutions giving the people the power to make decisions for themselves through elected bodies of
government.

The autocrat needs some kind of power structure to rule. Very few rulers were in the position to rule with
only their personal charisma and skills, however great these may be, without the help of others. Most
historical autocrats depended on their nobles, the military, the priesthood or others, who could turn against
the ruler and depose or murder them. As such, it can be difficult to draw a clear line between historical
autocracies and oligarchies.1

Jean Baptine Rascine (1639-1699) (French Play Writer), “Autocrat are tired of making himself/herself
loved, he want to make him/herself feared.”

Winston Churchill (1874-1965) (British Prime Minister and Writer), “Dictators ride to and fro upon tigers
which they dare not dismount. And the tigers are getting hungry.”

Autocracy is a political system under which one ruler wields unlimited power, restricted by no
constitutional provisions or effective political opposition. the autocrat need some kind of power structure
to rule, like laws (legislation)-mostly martial laws.

Without any legal authority no state authority either autocrat are entitle to run its governance or the rule.
But this may not had been happened in ancient period but it is must in modern era that there need to be of
any legal authority to establish themselves as a ruler. So, they use legislation /law as their weapon to
establish themselves as ruler.

Example:

Nepal:

• King Mahendra, seized absolute control of government by proclaiming a new constitution in 1962;
that banned the formation of political parties and allowed for the autocratic rule.
• King Gyanendra dismissed Deuba, dissolve parliament and assumed full power over the
government, based on Art 127 of Nepalese Constitution 1990.

Europe:

• Between 1925 and 1931, The Fascists consolidate power through a series of new laws that provided
a legal basis for Italy’s official transformation into a single-party state.
• Nazi government issued Nazi style of law name “anti- Semitic Laws”. These new laws denied that
Jews being German and was used totally against the Jews by Hitler.

1
http://en.wikipedia.org/wiki/Autocracy
These all events proves that autocrat use the legislation as tool to improve their autocracy. By using law
they can pronounce any activity which is against them as illegal. Legislation is the effective instrument to
govern the society in autocracy. This is an important tool as compare to other law making bodies. In
autocracy the legislation is made to fulfill the interest of elite.

Features of autocratic legislation:

1) No division of power:

There is no separation of power, all judicial, executive, legislative function is carried by

the same people, and all power are vested and exercised by ruler themselves. In all area
there is possibility of abuse of authority. Ex: Royal Commission set by Gyanendra, which
used to file case by own initiative and investigate by the same body and also
implementation or enforcement by the same one.

2) No rule of law but rule by law.

Rule of law is a general legal maxim according to which decisions should be made by
applying known principles or laws, without the intervention of arbitrary discretion of ruler
in their application. But it is usually absent in autocratic regime.

3) Individual right aren’t respected.

Every individual, a right is the moral sanction of a positive—of his freedom to act on his
own judgment, for his own goals, by his own voluntary, uncoerced choice. As autocrats
may impose obligations on them of a negative kind like to abstain from their individual
liberty if they revolt against regime.

4) Public opinion is not considered.

The rapid spread of public opinion measurement around the world is reflection of the
number of uses to which it can be put. Legislative have increasingly found surveys to be
useful tools for guiding their public information and propaganda programs and
occasionally for helping in the formulation of law.

5) Media are suppressed.

Media in under autocratic rule have no respect for the sentiments and ethics of the people
and land whom they serve to, with their immense power to influence the masses they just
make judgment like a true dictator rather than a good advice of a true friend as they used
to do in democratic society. Sometimes media may get under attack by dictator if it goes
against them (Kantipur media during King Gyanendra takeover).

6) Education is suppressed.

Education is the process by which society deliberately transmits its accumulated

knowledge, skills and values from one generation to another which may create a situation
of rebellion against the autocrat (Peoples’s democratic movement in against Rana and
Panchayati regime).
Conclusion

Totally closed system of governance or legislation/law is found in autocratic regime. An autocratic

regime ignores to other and works for the ruler’s interest. They don’t prefer any kind of intervention
or support on any matters from international level.

Autocracy moves toward elite power by use of legislation as their weapon. They impose obligation
on people.

(Please do add more literature review in your study)

Concept and History of Democracy

Meaning

• government by the people in which the supreme power is vested in the people and exercised
directly by them or by their elected agents under a free electoral system.

• “of the people, by the people, and for the people. “

• Greek words demos meaning ‘People’ and kratos meaning ‘authority’ or ‘power.’”

• system where people can change their rulers in a peaceful manner and the government is given
the right to rule because the people say it may.

• What is again- As concept, What forms Democracy? Are we in Democracy?

History

• Three historical or “long waves” of democracy. Samuel P. Huntington

• First Wave- early 19th century – 1920s. 29 Countries in the world. Right to vote to a large
proportion of the male population in the United States,

• First Reverse- 1922- 1942. 17 countries reversed. Mussolini came into power.

• Second Wave- 1945- 1970s- 36 countries- World War II, Decolonization

• Second Reverse – 1962-1970s Mid- 6 countries draw back.

• Third Wave- 1974- Portugal Revolution (Carnation Movement)- Overthrowing Estado Novo and
Freeing African Colony.

• Fourth Wave- Middle East and Arab Countries???? Redefining Democracy??

Types of Democracy

• Direct Democracy- all citizens, without the intermediary of elected or appointed officials, can
participate in making public decisions.

• Indirect Democracy – Delegative/Representative

• Lite Democracy – Illusive Democracy

 • Constitutional Democracy

• Other Many -??????

PREREQUISITES OF DEMOCRACY

• Elections on their own do not make a country democratic

• Control over government decisions about policy constitutionally vested in elected

representatives.

• Elected representatives chosen in frequent and fair elections.

• Elected representatives exercise their constitutional powers.

• All adults have the right to vote in elections.

• All adults have the right to run for public office.

• Citizens have the right to express themselves on political matters, defined broadly, without
the risk of state punishment.

• Citizens have the right to seek out alternative sources of information, such as the news media,
and such sources are protected by law.

• Citizens have the right to form independent associations and organizations, including
independent political parties and interest groups.

• Government is autonomous and able to act independently from outside constraints (such as
those imposed by alliances and blocs).

• Citizens concerns are adequately responded and heard by the government.

The pillars of democracy

• Sovereignty of the people.

• Government based upon consent of the government.

• Majority rule.

• Minority rights.

• Guarantee of basic human rights.

• Free and fair elections.

• Equality before the law.

• Due process of law.

• Constitutional limits on government.

• Social, economic, and political pluralism.

MERITS OF DEMOCRACY

• The participation of the individual members in the government facilitates to enlist their
sympathy and co – operation to the success of the government.

• It is an effective form to educate the public about political, economic and social affairs.

• it is helpful to promote patriotism among the people and prevents occurrence of violent
revolutions.

• It helps to make progress and development and enables changes to take place in a peaceful
manner.

• It ensures to the people freedom of speech, conscience, assembly and action.

• It guarantees liberty and equality, which are necessary for human development.

Criticism on Democracy

• It sometimes leads to establish the majority view over the minority view.

• Party leaders and political office holders in government control the citizens and the members of
the party.

• It does not encourage individuals to give their opinions.

• It is a very expensive form of government because elections have to be conducted

periodically to various office.

• It is difficult to prevent corruption and malpractices.

• It is also known as government by amateurs and lead to domination of masses.

Democratic Legislation

Meaning

• The word “democracy” comes from two Greek words: “demos” meaning “people” and “kratos”
meaning “power” or “authority.”

• The power and strength of government come from the people in a democracy.

• John Marshall (1755 - 1835)(U.S. Supreme Court chief justice), The people made the legislation
(Constitution), and the people can unmake it. It is the creature of their own will, and lives only
by their will.

• Although often used interchangeably, the terms democracy and republic are not synonymous.
Both systems delegate the power to govern to their elected representatives.
 • In a republic, however, these officials are expected to act on their own best judgment of the
needs and interests of the country. The officials in a democracy more generally and directly
reflect the known or ascertained views of their constituents.

• In modern democracies, supreme legislative authority is exercised for the most part by
representatives elected by popular suffrage.

Elements of Democracy

• Rule of Law – both the government and the governed are subject to the law

• Political Equality – everyone is equal; one person/one vote

• Common Good – decisions are made for the benefit of everyone

• Personal Freedoms / Human Dignity – fundamental freedoms (speech, religion, etc.) = civil rights

• Political Freedoms – protect the right of citizens to participate in the political process

• Being informed and getting involved – democracy works best when the citizens are active and

• responsible

• Respect – we must accept that not everyone has the same political views

Democratic Legislation Features

I. Legislation should reflect the will of the majority.

II. Legislation must respect people’s rights and liberty .

III. Public Participation are highly encouraged in law-making.

IV. All citizens should get sense of ownership in legislation.

V. Legislation should be based on social values and norms, so that they are socially justifiable
(good/fair for society).

Democratic Legislative Principle

1. Pre-publication of draft to public and Parliamentarian: - For transparency and public reaction
to the draft.

2. Principle of Equality: - Equal voting right is to be provided to all the parliamentarian.

3. Rational and Essential Procedure are to be followed.

4. Neutrality of House speaker as “Referee”.

5. Respect and response to the minority parliamentarian.

Conclusion

• H. L. Mencken (1880 - 1956) (U.S. journalist, critic, and editor), “Democracy is the theory that
the common people know what they want, and deserve to get it good and hard”.
• Due to its ‘Respect toward Humanity’, its essence can’t be questioned right now.

Use of Legislation as State’s Tool of Power in Autocracies

Autocracy Vs. Democracy

◼ Democracy is a form of government in which the people either directly or indirectly, take part in
governing. However, the term is also used as a measurement of how much influence a people
has over their government, as in how much democracy exists.

◼ A modern democracy implies certain rights for citizens:

1. Right to elect government through free and fair elections

2. Freedom of Speech

3. The rule of Law

4. Human Rights

5. Freedom of Assembly

6. Freedom from discrimination

Is Democracy the Best System?

◼ There is much debate on the ability of a democracy to properly represent both the ‘will of the
people’, and to do what is right, but to quote Winston Churchill;

“Democracy is the worst form of government except for all those others that have
been tried”.

◼ This is because there is no system that can ideally order society. Traditionally, the purpose of the
democracy is to prevent tyranny (the accumulation of too much authority in the hands of one or
few. Thus, if the democracy cannot give us a good government, it puts limits to the abuse of
power.

What is Autocracy?

◼ In simple tone, an autocracy is a system where the ruler rules the people with too much
accumulation of the power, or there is no kind of limits on abuse of power. Autocracy signify
lacking of people’s representation or participation in the governance process.

◼ Despotism: Autocracy might be imposed by a single person or a group. When a singular

authority –either a single person or tightly knit group-which rules with absolute power is know
as “despotism”.

◼ Despotism implies tyrannical rule; it suggest a form of government which exercises exacting and
near absolute control over all its citizens.
◼ Totalitarianism: Totalitarianism is any poetical system in which a citizen is totally subjected to
state authority in all aspects of day-to-day life. It goes well beyond dictatorship of typical police
state measures, and even beyond those measures sustain total war with other state. It involves
constant brainwashing achieved by propaganda to erase any political for dissent, by anyone,
including most especially the state’s agents.

◼ Dictatorship: Dictatorship is a government headed by a dictator or more generally any

authoritarian or totalitarian government. It is often equivalent to a police state, but the term
dictator refers to the way the leaders gain and hold power, but not the watch kept on the
people.

◼ Police State: A political condition where the government maintains strict control over society,
particularly through suspension of rights and often with use of a force of secret police.

◼ Authoritarianism: The term authoritarianism is used to describe an organization or a state

which enforces strong and sometimes oppressive measures against population. This is
distinguished from totalitarianism both by the degree and scope, authoritarian government
being less intrusive and in organization not necessarily backed by the force.

◼ Autocracy in general implies an ideology or concept of regime ‘which tends to or rule by

accumulation of power without being accountable to people’. People are subjected to the
authority of the state. This sate of condition implies that:

1. People have not freedom electing government.

2. People exercise no freedoms

3. Government interferes in all aspects of life of the people.

4. Police measures are used to contain the people.

Legislation is Used to Rule People

◼ Law is effectively used to:

1. Remove the limits of power, and prevent abuse of power. Legislation in such regime is used to
empower the rulers to accumulate powers or authority.

2. Restrict the people to dissent. People rights to freedom of speech and assembly is restricted or
marginalized.

Features of Legislation in Autocracy

◼ Prescriptive: Legislation prescribes the duties for people to support the ruler without any
question.

◼ Regulatory: Legislation is regulatory, so that behaviors of all people are strictly regulated,
deviation being punishable.

◼ Punitive: Legislation is punitive for violation of the prescription or regulation.

 ◼ Centralization of power: Governance power is centralized. The devolution of the power is
effectively negated. Centralization of power weakens the authority of the Parliament, the law
making body.

- Legislation is abstract and ambiguous or maintains possibility double standard.

- Legislation empowers executive for rule making through regulation or ordinance or bye-laws.

- Legislation provides absolute power for interpretation of the statute.

Unit 3
Use of Legislation as a State’s tool power to administer governance
(Draft)
Introduction
Democratic ‘governance’; political organization comprising the individuals and institution (i)
authorized to formulate public policies and (ii) conduct affairs of state.
Government is empowered to establish and regulate the inter-relationships of the people.
The peculiar and essential qualities of the government are:
First, it is representative.
Second, recognizes the liberty of individual citizens.
Third, separation of power accompanying with the check and balance mechanism.
Fourth, implementation (enforcement) of law.
Executive, Legislative and Judiciary are the most essential ingredients of government. They do
have own governance system.
Background
Nepalese governing system has been adopting up to down approach in authority and delegation of
power. Bottom-to-up approach in responsibility and accountability. Our governance should not be
like “army fighting in war without arm and weapon”. Law should be used as a weapon to good
governance.
Indeed, Nepalese do expect of good governance; (comparatively good than the present)
Many challenges have been appearing a hurdle to govern the state. Like as follows:
1. Problem of peace and security
2. Address issues of excluded groups:
3. Poverty
4. Political instability, etc.
 Despite of these challenges, gain occurred in governance by considerable progress with
(a) Tax policy (b) administrative reform (c) combat corruption (d) independence of judiciary
(e) advancement and development of communication system.

Conceptual Framework
In simple language, ‘what government does is governance’. Governments are empowered to
establish and regulate the interrelationships of the people within their territorial confines, the
relations of the people with the community as a whole, and the dealings of the community welfare.
The word government may refer to the people who form the supreme administrative body of a
country, as in the expression “the government of Prime Minister Churchill.”
The system or manner of government is governance, which is run by the administrative law of the
nation or state. Administrative law is the area of law dealing with the affairs of agencies of the
executive branch of a government, and with the judicial review of public bodies generally.

Administrative bodies or government agencies (VDC, Municipalities, Forest department, CDO

office, Tax Revenue office, etc.) are created as the government’s agencies and given power by
federal or state legislation.

The administrative law is basically concerned with whether proper standards are applied by
government’s agencies in exercising their powers and in making and enforcing regulations. If an
agency does not apply the proper standards, its failure may be redressed by application to the
courts.

Government require to maintain peace and security, generate and control the economy etc. there
are many function of democratic government, therefore to run and regulate these action a
government requires different legislation as ‘administrative laws’. Administrative Law
is body of law applicable to the operations of agencies established by the legislature to carry out
the functions of the executive branch of government. Administrative law are used in a way to
maintain peace and security crime control act, police act; to regulate the economy income tax act,
VAT, Nepal Rastriya Bank act and other banking acts; for regulation of industrial and other
business activities there are company act, contract act etc.
Legislative just promulgate the constitution and act which determine the substantive or principle
aspects like the framework, structure, jurisdiction, role and responsibility. But legislative can’t
determine procedural aspect of each and every activities, it is not practicable to determine each
and every procedure of an act. That’s why legislative provided delegated legislative authority to
executive. For ex: there is ‘Forest Act’ which is enacted by legislative. This ‘Forest act’ provided
the substantive aspect to run forest and forest administration, they are administrative power-
authority to forest office, administrative discretionary power to forest officials, administrative
adjudication (quasi-judicial) authority, etc. But in case of its procedure to run an administration,
‘Forest act’ provides delegated legislative authority to forest office to formulate its own procedure
by formulating ‘Rules and Regulation’ by forest office themselves.
In this way government use the legislation (use of administrative law) as a state’s tool power to
administer governance like forest department use ‘Forest act’ as its tool to administer forest
governance.
Two major aspects arises (i) why? And other is (ii) how?
Answer to Why?
1. To protect individual right and liberty (Fundamental rights).
2. To maintain Rule of law
(a) Control the behavior of the people through criminal laws.
(b) Reform and adopt new laws with the social change.
(c) Public welfare
(d) Strengthen democratic process
3. To establish government of people
4. Separation of power with effective check and balance
5. Equality before law
Answer to how?
Through administrative laws like: Local government Act and regulation, Civil service Act and
regulation etc.
Elements of Administer governance are:
a) By delegated legislation
Allowing minor laws (rule) making authority under the scope provided by act and
regulation.
b) By administrative power and authority
Executive has an authority to govern and enforce. For ex: Village Development Committee
and Municipality are autonomous to govern themselves.
c) Administrative discretion
The freedom or authority to judge something or make a decision about it by an executive
authority is an administrative discretion. Ex: traffic police and tax official discretionary
power to impose the amount of fine.
d) Administrative adjudication
Resembling power of the court by an executive body. It describes decision making power
of executive that are similar to court. Ex: Quasi-Judicial body.
e) Control over administrative abuse of power and authority by supreme source of law
(Constitution)

(Please do add more literature review in your study)

Unit 4
Legislation as the tool for securing freedom of citizens.
Answer: legislation is defined by Gray as “the formal utterance of the legislative organs of the
society”.
“Freedom remains after legal restraints are subtracted”. All human being by nature are equally
free and independent and have certain inherent rights. Human beings cannot be deprived from the
enjoyment of life and liberty and the major tool for securing life and liberty of human is the law
(Legislation). The statement Legislation as the tool for securing freedom of citizens can be
explained on the following grounds:
The Universal Declaration of Human Rights has focused highly on the right to freedom of all
the people all over the world. It talks about the right to freedom of movement and residence within
the borders of each state, right to freedom of thought, conscience and religion, right to freedom of
opinion and expression, right to freedom of peaceful assembly and association, right to free choice
of employment, and so on.
There are many Legal provisions and rights provided to every citizens securing for their freedom
in Nepal. The Constitution of Nepal 2072, Part-3, Fundamental Rights and Duties Article-17 has
specifically explained about the Right to freedom. It has guaranteed for securing right to freedom
of every citizens. The Constitution of Nepal 2072 also has explained about the Right to
Constitutional remedy in article 46 which states to provide constitutional remedies in case of
violation of someone fundamental rights. This provision has secured the freedom of every citizens
to freely exercise their rights without any kinds of force and threat. Article 133(1) of constitution
of Nepal 2072, states that any citizen of Nepal may file a petition in the Supreme Court against the
unreasonable restriction on the enjoyment of any fundamental rights mentioned in constitution
except any limitation of law.
Civil Right Act, 2012, guarantees the freedom to citizen regarding speech, assembly, expression,
to run organizations, to move around Nepal without objection, to reside and maintain household
in any part of Nepal, to acquire, possess and sell property to choose any profession. It too has the
provision of personal freedom. This act has secured the freedom of citizen in all aspect.
In case of Nepal, the legislature is formed through the democratic election and the peoples
representatives are in the lawmaking process. Due to this reason people’s voice are expressed in
the laws while drafting laws. This too secures the freedom of citizen and allows them to express
their view in the law making process. Thus, legislation is the tool to secure the freedom of citizens.
Unit 5
Law making and Social Change + Social Control
Background
Savigny: “Law is found but not made.”
Particular society themselves develop legal system by sense of common consciousness
(Volkgeist).
HLA Hart:
He made a bridge between primitive society and modern society.
In primitive society there were some rules and principle to govern the society but there are de-
facto rules.
Therefore, secondary rules for him made effective to those primary rules by (i) recognition (ii)
change (iii) adjudication
Roscoe Pound
The purpose of law is to achieve ultimate goal of society, this ultimate goal can be achieve by
balance of conflicting interest.
(i) Individual interest: Fundamental rights
(ii) Public interest: -Right claim by a state to be a real state.
(iii) Social Interest: -Directive principles
So, all the source of law making is society. It is the institution felt by law makers for the society.
While making law, social order is to be considered, if not done then law can be opposed by the
society: -
“;fdflhs Aoaxf/ ;'wf/ P]g”

Law making for the Social change and Social Control

Law makers should make law addressing need of society not interest of elite group.
Changes through a law mean void changes. This can be as follows:
• Changes in attitude, psychology, behavior and power structure (law against
untouchability).
• Changes brought by the present court.
 • Through this constitution, you can claim the right against state. Like equality, sovereign
power is people.
• Pursuing equality in the land of Hierarchy, (Attitude in feudalistic pattern change into
socialist)
• Jurisprudential foundation of reservation.
• Empowerment of woman.
• Social Action and Public Interest Litigation.
• Secularism
• Sometime if alternative are not given and absolutely imposed.
There may be high probability of disobedience. So, alternative is to be provided to enjoy law.
Social reform Act, Consumer protection Act failed due to disobedience of society.
Cyber Law came into existence with the felt of need of it by law makers and cope up with the
change in technology and human knowledge.
Other laws enacted and amended due to WTO regime, Human Right regime.
If the law is against international legal order then it will be condemned internationally.
Things that are to be considered by law makers in law making for social change are: -
(i) First thing is that, the law should be made according to societal interest.
(ii) Purpose of law is to make people empower (capable). For this we can make affirmative
discrimination.
(iii) Law should not exceed legal principle and international norms of standard.
(iv) Law should be according to the social psychology and social fact.
Cyber law wasn’t debated but Communication ordinances were debated because it has taken
dignity of media and media personal.
If any confusion occurs between lawmakers and society then either society or law can’t function.
From the historical period to modern society like Mundhum, Manab Nayab Sastra, Muluki Ain,
Constitution has brought number of changes in society.
Sati abolition, Child marriage, Birta Unmulan, etc.
Because of the advancement of democracy, science and technology. (Climate change)
Law makers are to be update through research to meet the societal interest as a whole.
Law as an instrument of Social Change and Control
Relation between law and social change
• “If the law fails to respond to the needs of changing society, then either it will stifle
the growth of the society and chock its progress or if the society is vigorous enough, it
will cast away the law which stands in the way of its growth. Law must therefore
contently be on the move adapting itself to the fast changing society and not behind”.
– Justice Bhagwati
Social Change
• Social change is a product of multitude of factors and in many cases they have
interrelationship
• In addition to law, there are other factors such as technology, ideology, competition,
conflict, political and economic factors and structural strains
•
The changing nature of society
• Earlier, society was customarily based on Morals.
• But, as soon as society is replaced by the state, morality too gets replaced by the law
• If, we want to change any existing custom or behavior in society, it should be changed
by the instrument of law only, otherwise not
Law and Social Change
• Law as an instrument of social change:
Political, social and economic perspectives are important to understand the social
change and control through law and legal system.
• Law is a mirror to know how people relate to one another , their values, what they
consider worth preserving in life, and how they define their own security.

Law and Public opinion:

The law , which is molded through public opinion is thus the result of state action in
accordance with the public opinion. There are some examples like citizenship bill in
the past, Labour Bill and etc.
Reciprocal relation between law and social change
Conflicting opinions of Bentham and Savigny
- Bentham expected legal reforms to respond quickly to new social needs (British
parliament and other parliamentarian laws at that time were influenced by Bentham)
-- Savigny condemned the French Revolution stating that it is a threatening to sweep
western Europe
Weber emphasizes two points:
• Conflict of interests provide the base for the formation of laws that bring change; so the
stratification of society and the preferences of those who promulgate the changes
determine the role of laws in social change.
• Law as an instrument of social change can be seen as the organization of power and
processes that protect special interests in society and result in social change.
• The law and social changes is a unique subject and studies the social problems of the
society and their solutions here, through legal approach.
• In fact, there are two modes of changing law. First is, “law changed the society”; which
means that the law of the land compels the society to be changed according to the law.
• When any dispute involving the question of law, came before the judiciary, the judiciary
on the basis of rule of law, forced the society to change itself the existing custom or law
.
• Second is, “society changed the law”; it means law is made by the society according to
its requirement by its democratic instrument. i.e. Legislative or by adopting custom and
usage
Efficacy of law for social changes
William M. Evan makes 7 conditions for the efficacy of law:
• Law must emanate from an authoritative and prestigious sources
• Law must introduce its rational in terms that are understandable and compatible with
exiting values
• The advocate of change should make reference to other communities or countries with
the population identified and where the law is in effect
• The enforcement of law must be aimed toward making the change in a relatively short
time
• The implementation of law should include positive as well as negative sanctions
• The enforcement of law should be reasonable not only in terms of sanctions but also for
protection of rights
Law as a means of social control
• Two fold objectives of law to serve is, firstly, to keep up stability and afford orderly life
in the society.
• Secondly, to persuade social change by changing itself according to the needs of the
changing society.
• Thus, law is an important agency of social control. The society supervenes the law for
better most socialization. Rule of law in any constitution is the bedrock for democracy.
• By putting fear in the minds of public, the law is a helpful agency for social control.
• Law regulates the behavior of the people in society.
• Law, by using force, makes the people conscious about their duties and obligations.

Unit 6
Utilitarianism
INTRODUCTION

Utilitarianism (Latin utilis, “useful”), in ethics, the doctrine that what is useful is good, and
consequently, that the ethical value of conduct is determined by the utility of its results. The term
utilitarianism is more specifically applied to the proposition that the supreme objective of moral
action is the achievement of the greatest happiness for the greatest number. This objective is also
considered the aim of all legislation and is the ultimate criterion of all social institutions. The
utilitarian theory of ethics is generally opposed to ethical doctrines in which some inner sense or
faculty, often called the conscience, is made the absolute arbiter of right and wrong. Utilitarianism
is likewise at variance with the view that moral distinctions depend on the will of God and that the
pleasure given by an act to the individual alone who performs it is the decisive test of good and
evil.

British philosopher and economist Jeremy Bentham (1748-1832) was the originator of the doctrine
known as utilitarianism. He declared that in order to come into accord with the laws of nature,
government and citizens should act to increase the overall happiness of the community. The
utilitarian principles of Bentham and others who shared his beliefs, including British philosopher-
economists James Mill (1773-1836) and his son, John Stuart Mill (1806-1873), helped to bring
about social and political reform in Britain.

In the Introduction to the Principles of Morals and Legislation, Bentham advanced utilitarianism
as the basis for reform. He claimed that one could scientifically ascertain what was morally
justifiable by applying the principle of utility. Actions were right if they tended to produce the
greatest happiness for the greatest number of people. Happiness was equivalent to pleasure.
Through a kind of moral-mathematical calculation of pleasures and pains, one could tell what was
a right or a wrong action. If all pleasures and pains were of the same order, then a utilitarian
evaluation of moral, political, and legal activities would be possible. Also, Bentham argued, if
values were based on pleasures and pains, then theories of natural rights and natural law were
invalid. John Stuart Mill, severely modifying some of Bentham's principles, discounted Bentham's
method for calculating quantities of happiness.

In Britain, liberalism was elaborated by the utilitarian school, chiefly the jurist Jeremy Bentham
and his disciple, the economist John Stuart Mill. The utilitarian reduced all human experiences to
pleasures and pains, maintaining that the only function of the state was to increase pleasure and
reduce pain and that legislation was acceptable as an evil designed to reduce worse evils. Utilitarian
liberalism had an especially beneficial effect on the reform of British criminal law. Bentham
demonstrated that the harsh penology of the 18th century was uneconomical and that leniency was
shrewd as well as decent. Mill defended the individual's right to act freely, even to the person's
own detriment. His essay “On Liberty” (1859) is one of the most eloquent defenses of free speech.

WORK OF BENTHAM

Utilitarianism was enunciated in its most characteristic form by the British jurist and philosopher
Jeremy Bentham in his Introduction to the Principles of Morals and Legislation (1789). In
Bentham work, utilitarianism is as illustrated in his definition of virtue as the “doing [of] good to
mankind, in obedience to the will of God, and for the sake of everlasting happiness.” Bentham
employed the utilitarian theory as a foundation, not merely of an ethical system, but also of legal
and political reforms. He maintained the necessity of sacrificing smaller interests to greater, or, at
all events, of not sacrificing greater interests to smaller, and so posited as the ethical goal of human
society the greatest happiness of the greatest number.

Bentham sought to illustrate the doctrine of utilitarianism by counterpoising it to the doctrine of

asceticism on the one hand and to the theory of sympathy and antipathy on the other. Asceticism
he defined as the principle that pleasure should be forfeited, and pain incurred, without expectation
of any recompense. The theory of sympathy and antipathy he held to be based on the “principle
which approves or disapproves of certain actions, not on account of their tending to augment the
happiness, nor yet on account of their tending to diminish the happiness of the party whose interest
is in question, but merely because a man finds himself disposed to approve or disapprove of them:
holding up that approbation or disapprobation as a sufficient reason for itself, and disclaiming the
necessity of looking out for any extrinsic ground.”

In his exposition of the theory of utilitarianism, however, Bentham postulated “four sanctions or
sources of pain and pleasure,” namely, the physical, the moral, the religious, and the political. The
physical sanction, according to Bentham, is the basis of all the others. He sought further to devise
a scale of pleasures and pains, rating them in terms of their intensity, purity, duration, propinquity
or remoteness, certainty, fruitfulness, and the extent to which pleasure and pain are shared among
the greatest number of people.

Bentham’s ‘Principle of utility’

Utilitarian, in latin term it is “ütilis”, which mean ‘useful’. Bentham’s principle of utility concern
with ‘welfare state, ‘Laissez faire’ policy. He was social reformer, he determined the aim of
legislation to end social injustice.

Supreme objective of moral action is achievement of the greatest happiness for the greatest number
of people. It must be the objective of legislation and legislative while drafting the law. ‘

In order to accord with the laws of nature, government and citizens should act to increase the
overall happiness of the community/ or to secure the greatest happiness of maximum no. of people.

Pain and Pleasure

Identification of concept of “happiness” with pleasure and the absence of pain.

According to him nature has placed mankind with two sovereign matters (1) PAIN and other (2)
PLEASURE.

Legislature is to find of what is pleasure and pain of public. A) PLEASURE: just, good, moral. B)
PAIN: unjust, bad, immoral. The objective of legislature is to prevent pain and promote the
pleasure. Without establishing Principle of Utility, pleasure can’t be gain and pain can’t be
avoided. Law making should address no. of people through research. In this way pain of Nepalese
can be addressed.

Legislation (law) should be made after social research. It will help to find out whether it may be
accepted by large no. of population or not.

Legislative have to forward only those legislation which will have “greatest happiness of the
greatest no. of people”. It always speaks for the majority not minority. It goes with the doctrine of
“majority wins” and “voice of majority prevails”.

Four major goals of legislative

Legislative has four major goals. They are:-

1) Subsistence: primary objective of subsistence is to provide socioeconomic rights or basic

minimum standard of individuals.
2) Abundance (opportunity): state need to provide opportunity to work and develop.
3) Equality: everyone should be treated equally in case of life, liberty and property.
4) Security: security of one’s property and rights by the state.

Subsistence, law should fulfill the basic needs. When law ensures subsistence than state should
provide abundance opportunity to develop. And then all people have to be treated equally. To
protect property, security is to be provided by law. This view of Bentham is region-able.

Act and rule

Legislation has two virtues to establish the law (i) By ACT (action): this say this law has to be
made by the few experts. (ii) By Science: which says carry a research about which law is to be
made by going one by one to each concern stakeholders.

ACT (action) states that, when faced with a choice, we must first consider the likely consequences
first to generate most pleasure. RULE, he looks at what would happen if it were constantly
followed. If adherence to the rule produces ore happiness, it is a rule that morally must be followed
at all times. The major distinction between RULE and ACT is about the proper object of
consequence. What may be the consequence after formulation of law is essential for Bentham.

System of reasoning

According to Bentham principle of utility is ’system of reasoning’. ”public goal should be the
object of legislative; it should be scientifically calculated as system of reasoning by legislative”.
He said public good is to be scientifically calculated by legislature. Legislature is scientist to
determine public goods. Public goods are the common interest or public interest, common will,
common property. He said individual interest is not calculated in the system of reasoning.

To establish the system of reasoning legislature have to be clear about it’s objectives:-

(1) At first they have to establish precise idea of utility who employ it: if legislature is going to
make law then they have to be clear about the consequences of law after enacted.
(2) To establish sovereign principle of utility; legislature has to establish the principle problem
which is to be solved. Ex: poverty may be the principle problem of Nepal.
(3) To determine the process to achieve above principles: to find the process to achieve the
problem.

Disturbances to Utilitarian

a) Ascetic Principle: Utility can be disturbed by this principle. This can be for monk, priest
because they believe in heaven. They have their own goal, interest and are separated from
society.
b) Arbitrary Principle: that is sympathy (the feeling or expression of pity or sorrow for the
pain or distress of somebody else) and antipathy (strong hostility or opposition toward
somebody). By virtue of sympathy and antipathy they can be ignore.

AFTER BENTHAM

Other notable exponents were the British jurist John Austin and the British philosophers James
Mill and John Stuart Mill. Austin set forth a strong defense of the utilitarian theory in his Province
of Jurisprudence Determined (1832). James Mill interpreted and popularized the theory in a
number of articles contributed for the most part to the Westminster Review, a periodical founded
by Bentham and others to promote the spread of the utilitarian philosophy. John Stuart Mill, who
made utilitarianism the subject of one of his philosophical treatises (Utilitarianism,1863), is the
ablest champion of the doctrine after Bentham.
His contribution to the theory consists in his recognition of distinctions of quality, in addition to
those of intensity, among pleasures. Thus, whereas Bentham maintained that the “quality of
pleasure being equal, push-pin [a child's game] is as good as poetry,” Mill contended that “it is
better to be a human being dissatisfied than a pig satisfied,” that is, human discontent is better than
animal fulfillment. By this statement Mill seems to have rejected the identification of the concept
“happiness” with “pleasure and the absence of pain” and the concept “unhappiness” with “pain
and the absence of pleasure,” as found in Bentham's works and in his own earlier formulations.

The British philosopher Henry Sidgwick, a contemporary disciple of Mill, gave a comprehensive
presentation of Mill's utilitarianism in his Methods of Ethics (1874). Somewhat later, the British
philosophers Herbert Spencer and Sir Leslie Stephen, the former in his Data of Ethics (1879), the
latter in his Science of Ethics (1882), sought to synthesize the utilitarian theory with the principles
of biological evolution as expounded in the works of Charles Darwin.

Libertarianism, political philosophy emphasizing the rights of the individual. The doctrine of
libertarianism stresses the right to self-ownership and, by extension, the right to private ownership
of material resources and property. Advocates oppose any form of taxation and favor a laissez-
faire economic system. Libertarianism is an assertion of individual liberty in the face of growing
government involvement in all aspects of life.

Both the American philosopher and psychologist William James and the American philosopher,
psychologist, and educator John Dewey were influenced by utilitarianism. Dewey substituted
intelligence for pleasure, or happiness, both as the supreme value and as the most reliable method
of achieving other desirable values.

(Please do add more literature review in your study)

Utilitarianism

Utilitarianism in normative ethics, a tradition stemming from the late 18th- and 19th-century English
philosophers and economists Jeremy Bentham and John Stuart Mill that an action is right if it tends to
promote happiness and wrong if it tends to produce the reverse of happiness—not just the happiness of
the performer of the action but also that of everyone affected by it. Such a theory is in opposition to
egoism, the view that a person should pursue his own self-interest, even at the expense of others, and to
any ethical theory that regards some acts or types of acts as right or wrong independently of their
consequences. Utilitarianism also differs from ethical theories that make the rightness or wrongness of
an act dependent upon the motive of the agent; for, according to the Utilitarian, it is possible for the right
thing to be done from a bad motive.

The nature of Utilitarianism:

Utilitarianism is an effort to provide an answer to the practical question “What ought a man to do?” Its
answer is that he ought to act so as to produce the best consequences possible.

Basic concepts:

In the notion of consequences the Utilitarian includes all of the good and bad produced by the act,
whether arising after the act has been performed or during its performance. If the difference in the
consequences of alternative acts is not great, some utilitarians do not regard the choice between them as
a moral issue. According to Mill, acts should be classified as morally right or wrong only if the
consequences are of such significance that a person would wish to see the agent compelled, not merely
persuaded and exhorted, to act in the preferred manner.

In assessing the consequences of actions, Utilitarianism relies upon some theory of intrinsic value:
something is held to be good in itself, apart from further consequences, and all other values are believed
to derive their worth from their relation to this intrinsic good as a means to an end. Bentham and Mill
were hedonists; i.e., they analyzed happiness as a balance of pleasure over pain and believed that these
feelings alone are of intrinsic value and disvalue. Utilitarians also assume that it is possible to compare
the intrinsic values produced by two alternative actions and to estimate which would have better
consequences. Bentham believed that a hedonic calculus is theoretically possible. A moralist, he
maintained, could sum up the units of pleasure and the units of pain for everyone likely to be affected,
immediately and in the future, and could take the balance as a measure of the overall good or evil
tendency of an action. Such precise measurement as Bentham envisioned is perhaps not essential, but it
is nonetheless necessary for the Utilitarian to make some interpersonal comparisons of the values of the
effects of alternative courses of action.

Methodologies:

As a normative system providing a standard by which an individual ought to act and by which the existing
practices of society, including its moral code, ought to be evaluated and improved, Utilitarianism cannot
be verified or confirmed in the way in which a descriptive theory can; but it is not regarded by its
exponents as simply arbitrary. Bentham believed that only in terms of a Utilitarian interpretation do words
such as “ought,” “right,” and “wrong” have meaning and that whenever anyone attempts to combat the
principle of utility, he does so with reasons drawn from the principle itself. Bentham and Mill both believed
that human actions are motivated entirely by pleasure and pain; and Mill saw that motivation as a basis
for the argument that, since happiness is the sole end of human action, the promotion of happiness is the
test by which to judge all human conduct.

One of the leading Utilitarians of the late 19th century, a Cambridge philosopher, Henry Sidgwick, rejected
their theories of motivation as well as Bentham's theory of the meaning of moral terms and sought to
support Utilitarianism by showing that it follows from systematic reflection on the morality of “common
sense.” Most of the requirements of commonsense morality, he argued, could be based upon Utilitarian
considerations. In addition, he reasoned that Utilitarianism could solve the difficulties and perplexities
that arise from the vagueness and inconsistencies of commonsense doctrines.

Most opponents of Utilitarianism have held that it has implications contrary to their moral intuitions—
that considerations of utility, for example, might sometimes sanction the breaking of a promise. Much of
the defense of Utilitarian ethics has consisted in answering these objections, either by showing that
Utilitarianism does not have the implications that they claim it has or by arguing against the moral
intuitions of its opponents. Some Utilitarians, however, have sought to modify the Utilitarian theory to
account for the objections.

Criticisms:

One such criticism is that, although the widespread practice of lying and stealing would have bad
consequences, resulting in a loss of trustworthiness and security, it is not certain that an occasional lie to
avoid embarrassment or an occasional theft from a rich man would not have good consequences, and
thus be permissible or even required by Utilitarianism. But the Utilitarian readily answers that the
widespread practice of such acts would result in a loss of trustworthiness and security. To meet the
objection to not permitting an occasional lie or theft, some philosophers have defended a modification
labelled “rule” Utilitarianism. It permits a particular act on a particular occasion to be adjudged right or
wrong according to whether it is in accordance with or in violation of a useful rule; and a rule is judged
useful or not by the consequences of its general practice. Mill has sometimes been interpreted as a “rule”
Utilitarian, whereas Bentham and Sidgwick were “act” Utilitarians.

Another objection, often posed against the hedonistic value theory held by Bentham, holds that the value
of life is more than a balance of pleasure over pain. Mill, in contrast to Bentham, discerned differences in
the quality of pleasures that made some intrinsically preferable to others independently of intensity and
duration (the quantitative dimensions recognized by Bentham). Some philosophers in the Utilitarian
tradition have recognized certain wholly nonhedonistic values without losing their Utilitarian credentials.
A British philosopher, G.E. Moore, a pioneer of 20th-century Analysis, regarded many kinds of
consciousness—including love, knowledge, and the experience of beauty—as intrinsically valuable
independently of pleasure, a position labelled “ideal” Utilitarianism. Even in limiting the recognition of
intrinsic value and disvalue to happiness and unhappiness, some philosophers have argued that those
feelings cannot adequately be further broken down into terms of pleasure and pain and have thus
preferred to defend the theory in terms of maximizing happiness and minimizing unhappiness. It is
important to note, however, that even for the hedonistic Utilitarians, pleasure and pain are not thought
of in purely sensual terms; pleasure and pain for them can be components of experiences of all sorts.
Their claim is that, if an experience is neither pleasurable nor painful, then it is a matter of indifference
and has no intrinsic value.

Another objection to Utilitarianism is that the prevention or elimination of suffering should take
precedence over any alternative act that would only increase the happiness of someone already happy.
Some recent Utilitarians have modified their theory to require this focus or even to limit moral obligation
to the prevention or elimination of suffering—a view labelled “negative” Utilitarianism.
Historical survey:

The ingredients of Utilitarianism are found in the history of thought long before Bentham.
Antecedents of Utilitarianism among the ancients:

A hedonistic theory of the value of life is found in the early 5th century BC in the ethics of Aristippus of
Cyrene, founder of the Cyrenaic school, and 100 years later in that of Epicurus, founder of an ethic of
retirement, and their followers in ancient Greece. The seeds of ethical universalism are found in the
doctrines of the rival ethical school of Stoicism and in Christianity.

Growth of classical English Utilitarianism:

In the history of English philosophy, some historians have identified Bishop Richard Cumberland, a 17th-
century moral philosopher, as the first to have a Utilitarian philosophy. A generation later, however,
Francis Hutcheson, a British “moral sense” theorist, more clearly held a Utilitarian view. He not only
analyzed that action as best that “procures the greatest happiness for the greatest numbers” but
proposed a form of “moral arithmetic” for calculating the best consequences. The Skeptic David Hume,
Scotland's foremost philosopher and historian, attempted to analyze the origin of the virtues in terms of
their contribution to utility. Bentham himself said that he discovered the principle of utility in the 18th-
century writings of various thinkers: of Joseph Priestley, a dissenting clergyman famous for his discovery
of oxygen; of the Frenchman Claude-Adrien Helvétius, author of a philosophy of mere sensation; of Cesare
Beccaria, an Italian legal theorist; and of Hume. Helvétius probably drew from Hume, and Beccaria from
Helvétius.

Another strand of Utilitarian thought took the form of a theological ethics. John Gay, a biblical scholar and
philosopher, held the will of God to be the criterion of virtue; but from God's goodness he inferred that
God willed that men promote human happiness.

Bentham, who apparently believed that an individual in governing his own actions would always seek to
maximize his own pleasure and minimize his own pain, found in pleasure and pain both the cause of
human action and the basis for a normative criterion of action. The art of governing one's own actions
Bentham called “private ethics.” The happiness of the agent is the determining factor; the happiness of
others governs only to the extent that the agent is motivated by sympathy, benevolence, or interest in
the good will and good opinion of others. For Bentham, the greatest happiness of the greatest number
would play a role primarily in the art of legislation, in which the legislator would seek to maximize the
happiness of the entire community by creating an identity of interests between each individual and his
fellows. By laying down penalties for mischievous acts, the legislator would make it unprofitable for a man
to harm his neighbour. Bentham's major philosophical work, An Introduction to the Principles of Morals
and Legislation (1789), was designed as an introduction to a plan of a penal code.

With Bentham, Utilitarianism became the ideological foundation of a reform movement, later known as
“philosophical radicalism,” that would test all institutions and policies by the principle of utility. Bentham
attracted as his disciples a number of younger (earlier 19th-century) men. They included David Ricardo,
who gave classical form to the science of economics; John Stuart Mill's father, James Mill; and John Austin,
a legal theorist. James Mill argued for representative government and universal male suffrage on
Utilitarian grounds; he and other followers of Bentham were advocates of parliamentary reform in
England in the early 19th century. John Stuart Mill was a spokesman for women's suffrage, state-
supported education for all, and other proposals that were considered radical in their day. He argued on
Utilitarian grounds for freedom of speech and expression and for the noninterference of government or
society in individual behaviour that did not harm anyone else. Mill's essay “Utilitarianism,” published in
Fraser's Magazine (1861), is an elegant defense of the general Utilitarian doctrine and perhaps remains
the best introduction to the subject. In it Utilitarianism is viewed as an ethics for ordinary individual
behaviour as well as for legislation.

Late 19th- and 20th-century Utilitarianism:

By the time Sidgwick wrote, Utilitarianism had become one of the foremost ethical theories of the day.
His Methods of Ethics (1874), a comparative examination of egoism, the ethics of common sense, and
Utilitarianism, contains the most careful discussion to be found of the implications of Utilitarianism as a
principle of individual moral action.

The 20th century has seen the development of various modifications and complications of the Utilitarian
theory. G.E. Moore argued for a set of ideals extending beyond hedonism by proposing that one
imaginatively compare universes in which there are equal quantities of pleasure but different amounts of
knowledge and other such combinations. He felt that he could not be indifferent toward such differences.
The recognition of “act” Utilitarianism and “rule” Utilitarianism as explicit alternatives was stimulated by
the analysis of moral reasoning in “rule” Utilitarian terms by Stephen Toulmin, a British philosopher of
science and moralist, and by Patrick Nowell-Smith, a moralist of the Oxford linguistic school; by the
interpretation of Mill as a “rule” Utilitarian by another Oxford Analyst, J.O. Urmson; and by the analysis
by John Rawls, a Harvard moral philosopher, of the significance for Utilitarianism of two different
conceptions of moral rules. “Act” Utilitarianism, on the other hand, has been defended by J.J.C. Smart, a
British-Australian philosopher.

Effects of Utilitarianism in other fields:

The influence of Utilitarianism has been widespread, permeating the intellectual life of the last two
centuries. Its significance in law, politics, and economics is especially notable.

The Utilitarian theory of the justification of punishment stands in opposition to the “retributive” theory,
according to which punishment is intended to make the criminal “pay” for his crime. According to the
Utilitarian, the rationale of punishment is entirely to prevent further crime by either reforming the
criminal or protecting society from him and to deter others from crime through fear of punishment.

In its political philosophy Utilitarianism bases the authority of government and the sanctity of individual
rights upon their utility, thus providing an alternative to theories of natural law, natural rights, or social
contract. What kind of government is best thus becomes a question of what kind of government has the
best consequences—an assessment that requires factual premises regarding human nature and
behaviour.
Generally, Utilitarians have supported democracy as a way of making the interest of government coincide
with the general interest; they have argued for the greatest individual liberty compatible with an equal
liberty for others on the ground that each individual is generally the best judge of his own welfare; and
they have believed in the possibility and the desirability of progressive social change through peaceful
political processes.

With different factual assumptions, however, Utilitarian arguments can lead to different conclusions. If
the inquirer assumes that a strong government is required to check man's basically selfish interests and
that any change may threaten the stability of the political order, he may be led by Utilitarian arguments
to an authoritarian or conservative position. On the other hand, William Godwin, an early 19th-century
political philosopher, assumed the basic goodness of human nature and argued that the greatest
happiness would follow from a radical alteration of society in the direction of anarchistic Communism.

Classical economics received some of its most important statements from Utilitarian writers, especially
Ricardo and John Stuart Mill. Ironically, its theory of economic value was framed primarily in terms of the
cost of labour in production rather than in terms of the use value, or utility, of commodities. Later
developments more clearly reflected the Utilitarian philosophy. William Jevons, one of the founders of
the marginal utility school of analysis, derived many of his ideas from Bentham; and “welfare economics,”
while substituting comparative preferences for comparative utilities, reflected the basic spirit of the
Utilitarian philosophy. In economic policy, the early Utilitarians had tended to oppose governmental
interference in trade and industry on the assumption that the economy would regulate itself for the
greatest welfare if left alone; later Utilitarians, however, lost confidence in the social efficiency of private
enterprise and were willing to see governmental power and administration used to correct its abuses.

As a movement for the reform of social institutions, 19th-century Utilitarianism was remarkably successful
in the long run. Most of their recommendations have since been implemented unless abandoned by the
reformers themselves; and, equally important, utilitarian arguments are now commonly employed to
advocate institutional or policy changes.

Summary and evaluation:

As an abstract ethical doctrine, Utilitarianism has established itself as one of the small numbers of live
options that must be taken into account and either refuted or accepted by any philosopher taking a
position in normative ethics. In contemporary discussion it has been divorced from adventitious
involvements with the analysis of ethical language and with the psychological theory with which it was
presented by Bentham. Utilitarianism now appears in various modified and complicated formulations.
Bentham's ideal of a hedonic calculus is usually considered a practical if not a theoretical impossibility.
Present-day philosophers have noticed further problems in the Utilitarian procedures. One of them, for
example, is with the process of identifying the consequences of an act—a process that raises conceptual
as well as practical problems as to what are to be counted as consequences, even without precisely
quantifying the value of those consequences. The question may arise whether the outcome of an election
is a consequence of each and every vote cast for the winning candidate if he receives more than the
number necessary for election; and in estimating the value of the consequences, one may ask whether
the entire value or only a part of the value of the outcome of the election is to be assigned to each vote.
There is also difficulty in the procedure of comparing alternative acts. If one act requires a longer period
of time for its performance than another, one may ask whether they can be considered alternatives. Even
what is to count as an act is not a matter of philosophical consensus.

These problems, however, are common to almost all normative ethical theories since most of them
recognize the consequences—including the hedonic—of an act as being relevant ethical considerations.
The central insight of Utilitarianism, that one ought to promote happiness and prevent unhappiness
whenever possible, seems undeniable. The critical question, however, is whether the whole of normative
ethics can be analyzed in terms of this simple formula.

Bentham's Utilitarianism

Utilitarianism is a moral theory that gained popularity in the early 1800’s and still influences many of our
decisions today. On the face of it, it is pretty simple. The catchphrase of Utilitarianism is “Whatever action
produces the most pleasure and the least pain for the greatest number of people is the morally right
action.” So the rightness or wrongness of an action is tied to the consequences of the action in question.
It is for this reason that Utilitarianism is a member of the family of ethical theories known as
consequentialism. Simply put consequential ethical theories are theories that make use of the
ramifications of an action to determine its morality. Not all consequentialist theories however are as
altruistic as Utilitarianism.
The first great champion of Utilitarianism was as English philosopher by the name of Jeremy Bentham.
James Mill, a close friend of Bentham’s and fellow Englishmen aided him in his work and is often given co-
credit for Utilitarianism. However it was Mill’s son, John Stuart Mill who made Utilitarianism into a viable
working theory. To distinguish Bentham’s theory from J. S. Mill’s it is called Act Utilitarianism.

Bentham used what came to be known as the hedonistic calculus in determining if an action is right or
wrong. Here is how it works in a very and I emphasize very simplified example.

Action X is in question.

If X is done 100 people will experience an increased level of happiness. (For now we will not worry about
how much of an increase that would be.)

1 person will experience pain as a result of X action. 100 Positive – 1 negative = +99.

Action X is determined to be a morally right action with a positive rating of 99.

That is an example of the hedonistic calculus in action. Here is another.

Action Y is now in question.

Action Y will bring happiness to 6 people.

Action Y will bring pain to 5 people.

+6-5=+1 Action Y is morally right.

That one might sound a bit more questionable. How can 6 people cause pain to 5 people and feel good
about it? We are just getting started.

Obviously not all things that bring pleasure or pain bring it in equal amounts. Bentham devised a series of
criteria for determining the level of the pain or pleasure that needed to be taken into account. Without
going into the details of all the criteria I will attempt to give an adequate example of the hedonistic
calculus using pain and pleasure values.

You are at a store and interested in a particular item. We will say it’s a bottle of scotch. You are hosting a
swanky dinner party tonight, but have no money. Being a die-hard Act Utilitarian you ponder whether it
would be right or wrong to steal it. Not having to pay is a positive but not a huge one. You assign it a +2.
You may also get some satisfaction from stealing and living dangerously, +3. You are now up to +5. You
would share it with your 6 guests; that’s 7 people enjoying a drink. +2 for each for +14. That totals 19
positive points. Now for the negatives; you may feel guilty later –3. (if you were a true Bentham Utilitarian
you wouldn’t feel guilt as long as you go by the results of the hedonistic calculus because it determines
right from wrong. So this point could be negated.) You could get caught but you reason this is a remote
possibility –1. There will be lost revenue for the store but remember you are worried about pain levels,
not lost revenue. You reason that the store will never notice the loss. That’s a zero, neither positive nor
negative. Negatives total 4. +19-4=+15. You go for it.
Most people would agree that stealing is wrong but in this situation stealing looks like the way to the
greatest happiness and thus you would be in the wrong not to steal. How’s that for a change! Let’s
continue with the story.

The storeowner is very meticulous and immediately notices the missing bottle. He is out $50 bucks and is
furious. He fires the clerk who was on duty. He calls the police who are annoyed at the inconvenience.
They recognize you from the security cameras. You are arrested at your party and spend 3 days in jail
before being sentenced to 100 hours community service. I could go on but I’ll stop there.

Now instead of being a moral hero like you expected you are guilty of a grievous offense. You have caused
much more pain than pleasure. “But” you plead, “ I didn’t mean for this to happen! “ Utilitarianism is not
about what you meant to happen, remember it is a consequentialist theory. It only matters what happens
in the end. So there is something that seems counterproductive about an ethical theory that is incapable
of determining the morality of an action before the action is committed.

Another problem is that ultimately the hedonistic calculus is subjective. You may give a particular pleasure
a +10 but someone else may give it only +7. Many people also take issue with a theory that would allow
the immense suffering of a few for the pleasure of many.

There is the issue of practicality too. How many people really want to take the time to consider all the
possible ramifications, assign them all numbers, and add all the numbers together to come up with what
is in the end only a guess as to if an action would be moral or immoral?

Still there are many instances when people apply act utilitarianism often without realizing it. These are
especially common during crisis situations such as warfare. Generals (and the public) may find themselves
contemplating how many lives the mission is worth and Congress may be worried about how many dollars
it is worth.

Because of its many flaws for everyday use, act utilitarianism today has few adherents. However you may
remember John Stuart Mill from above. He took act utilitarianism and revolutionized it, dealing with most
of the objections in the process. It is John Stuart Mill’s Rule Utilitarianism that I will be discussing in my
next article
 Bentham's Utilitarianism in Victorian England by Paul Roach
http://www.gober.net/victorian/reports/utilitar.html
The philosophy of Utilitarianism influenced many of the social reforms in Great Britain during the
early half of the nineteenth century. The name most frequently associated with Utilitarianism is
that of Jeremy Bentham. Bentham's philosophical principles extended into the realm of
government. These principles have been associated with several reform acts entered into English
law such as the Factory Act of 1833, the Poor Law Amendment Act of 1834, the Prison Act of
1835, the Municipal Corporations Act of 1835, the Committee on Education in 1839,the Lunacy
Act of 1845, and the Public Health Act of 1845. In terms of their effect on Victorian era reform
Bentham's two most influential works appear to be An Introduction to the Principles of Morals and
Legislation (1789) and Constitutional Code (1830-1841). Utilitarianism as a philosophy was also
known as Benthamism or Philosophical Radicalism. Opponents to utilitarian thought included
Thomas Carlyle, John Ruskin, and Charles Dickens.
Bentham's basic premise to his philosophy can be found in An Introduction to the
Principles of Morals and Legislation:
Nature has placed mankind under the governance of two sovereign masters, pain
and pleasure. It is for them alone to point out what we ought to do as well as to
determine what we shall do (225) 1.
Along with this idea of pleasure and pain as sovereign masters Bentham introduced what he called
the principle of utility. This principle can be summarized as the principle that "every action should
be judged right or wrong according to how far it tends to promote or damage the happiness of the
community" (29),2. Bentham believed that human behavior was motivated by the desire to obtain
pleasure and to avoid pain. In Introduction to the Principles he states that it is " the greatest
happiness of the greatest number that is the measure of right and wrong" (229) 1. These principles
were intended by Bentham to be " a precept addressed to the legislators, to those responsible for
the management of society" (27)2. Bentham hoped to affect some social change rather than to
merely influence intellectual beliefs. He even went so far as to suggest that legislators should
regulate the ways in which individuals sought their own happiness. The idea of punishment and
reward were to be the means by which the legislator could control the people's pursuit of happiness.
Rewards were regarded as a less important method than punishments. Utilitarianism taught that
through the infliction and threat of pain people would be provided with motives for abstaining
from socially harmful behavior.
Bentham sought to create what he termed a "Pannomion" or a codification of the entire
body of English laws as they were known at that time. He believed that the one constant in all
these laws should be that they were derived from the will of the legislator. these laws were to be
made up of a command or prohibition supported by the threat of punishment. Bentham's emphasis
on law and punishment reflected the fears he had towards the natural rights ideology that had
resulted in the French Revolution. The "Declaration of the Rights of Man and the Citizen" found
in the French Constitution of 1791 proclaimed that all men had unlimited rights to "liberty,
property, security, and resistance to oppression". Bentham felt that such unlimited rights were
incompatible with any type of law or government.
In his Constitutional Code Bentham developed ideas for what could be termed a utilitarian
democracy. In such a democracy the happiness sought by the legislators as individuals had to be
made to coincide with the people's happiness. Bentham suggested that the only way to achieve this
was to ensure that the legislators were made such by an electoral system based on punishment by
dismissal from office. He advocated the policies of secret voting, manhood suffrage, equal
electoral districts, and annual elections. Many of these policies were adopted by radical
parliamentary reformers during the 1830's and 40's (82).2 In dealing with issues of policy and
welfare Utilitarianism considered forms of government that dealt with other issues besides the
enforcement of punishment such as the prevention of crime and unemployment. Bentham devised
two methods for dealing with these issues, the Panopticon penitentiary and the National Charity
Company. The Panopticon penitentiary would be run according to the rules of lenity, severity, and
economy. Lenity meant that the prisoners would not be subjected to physical harm. Severity meant
that that the prisoner’s level of comfort would not exceed that of the members of the lowest class
of society. The economy of the Panopticon would be arrived at through the limited amount of staff
needed to run it. According to Bentham's architectural design of such a penitentiary:
The jailer in his central lodge would be able to see into each of the prisoner's cells,
but screens and lighting would be so arranged that he himself could not be seen by
them...so they would all have the impression of an invisible omnipresence (92).2
As for the poor Bentham proposed the creation of the National Charity Company. This
organization was to be responsible for the relief of the indigent of the community. The company
would be run under a system of contract management in which workhouses would extract labor
from their pauper inhabitants. The contractor of such a workhouse would be paid an allowance per
head by the government to house a certain number of paupers. As with the Panopticon, the
conditions of the inhabitants were not to be better than the conditions of the lowest classes not
living in workhouses. Bentham believed that a system of relief run by the government was
necessary because "the greatest happiness principle required that everyone should be secured
against starvation and the fear of it" (94). Through the influence of Bentham's ideas Utilitarians
have been dubiously credited with helping to "lay the foundation for the creation of the welfare
state in Great Britain"(828).3 Any failure of performance, however, cannot be placed upon the
principle, but rather the politicians and bureaucrats who ran the programs.
The effects of the Industrial Revolution in England produced a call for great social reform.
Utilitarianism seemed to many members of the middle class to be the answer to that call The
philosophy became popular because it appealed to those who had benefited financially from the
Industrial Revolution. The revolution "increased the power of the individual and extended his
potential for the consumption of goods and services"(14).4 The utilitarian principle of happiness
proposed by Bentham allowed the pursuit of individual happiness, in this case wealth, as morally
good. The middle class of England had moved into a position of power as a result of their newfound
wealth. This new power caused those who had it to be "enraged by the ridiculous impediments
which still hindered individual freedom" (16).4. The middle class realized that the best way for
them to maintain their wealth and power was to enact a democratic system of government such as
that suggested by Utilitarianism.
Along with the adoption of a new philosophy among those in new positions of power came
the call for the social reform inherent to Utilitarianism. The Reform Act of 1832 allowed the
utilitarian influenced middle class to have an active role in legislation. Bentham's influence was
manifested when the criminal laws were codified in 1833 and severe penalties for minor crimes
were reduced in 1837. The Poor Law Amendment Act of 1834 resulted from the middle class' use
of utilitarian principles as well. The belief that the old poor laws were demoralizing to those who
received relief was a primary cause for reform. Equally important was the economic burden
produced by the administration of the poor laws. The administration of the old poor laws had risen
in cost from 619,000 pounds in 1750 to almost 8,000,000 pounds in 1818 (449). The means of
supporting these costs fell on the landowners who now had sufficient reason to hope for poor law
reform. The Poor Law Amendment Act of 1834 was passed and Edwin Chadwick, once Bentham's
personal aide, was made secretary of the Poor Law Commission. The influence of Bentham's
principles again became manifest when the Poor Law Commission began its new administrative
organization. Previously there had been "15,000 different parishes and townships each of which
was responsible for the treatment of the poor in their own area" (450).5. These parishes were now
grouped into unions and workhouses were built to house the poor.
The increase of the poor population in cities also resulted from the economic upheaval
produced by the Industrial Revolution. The destruction of the cottage industry caused many rural
workers to flock to the cities in search of work. Those who were unable to adjust to the new
economic system produced a bottom-level middle class or laboring class. The growth of the
working class led to a decrease in wages and further unemployment. Working class housing
accommodations were essentially slums with poor sanitation. A cholera outbreak prompted
Chadwick to order a survey of London to report the relationship of poor living conditions to
disease. This led to his Report on the Sanitary Condition of the Labouring Population of Great
Britain (1842) and ultimately to the Public Health Act of 1848.
In addition to the laws relating to the problem of pauperism Utilitarianism influenced other
reforms. The Municipal Corporations Act of 1835 replaced squires and magistrates with
bureaucrats who served elected councils. Before this reform there had been no local governments
but unevenly formed districts governed by the whim of parish officials. With the Municipal
Corporations Act the Benthamite idea that legislators should be subject to the punishment of
dismissal was brought to life. By 1833 the government had begun allowing grants to help in the
building of schools. In 1839 the first Committee on Education was formed. This parallels
Bentham's suggestion in Constitutional Code for an Education Minister who would supervise the
execution of new educational legislation.
The Factory Act of 1833 provided professional inspectors who had the power to enter
factories, examine them, and asses fines for violations. This legislation was concerned with
protecting the security of the governed people, another idea suggested by Bentham in
Constitutional Code. Bentham proposed that a Preventive Service Minister be appointed for
implementing legislation for among other things, safety regulations in mines and factories. The .
Lunacy Act of 1845 could also be considered a product of Bentham's proposal for a more humane
system of government. In Great Britain national interest pertaining to the problem of insanity led
to the formation of the Metropolitan Commission on Lunacy. Insanity became recognized as a
medical rather than a moral problem. The Lunacy Act required all counties to "provide adequate
asylum accommodation for pauper lunatics, to separate them from the merely indigent or criminal,
and made the inspection of all private asylums compulsory" (398). Finally, Bentham's ideas
concerning prison reform, they served as forerunners to the Prison Act of 1835. Although a prison
such as the Panopticon was never built Bentham's principles of lenity, severity, and economy in
prisons were influential.
Although its premises were first published in the 1790's Bentham's Utilitarianism heavily
influenced social reforms in Great Britain during the 1830's and 40's. Bentham died in 1832 before
he could witness his ideas come to life in the form of new legislation. Sections of his Constitutional
Code published posthumously allowed his presence to be felt during many of the reforms of the
late 1840's. The new economy in England produced by the Industrial Revolution created such
chaos in society that the utilitarian line of thought seemed logical to many parliamentary reformers.
However the creation of the welfare state as well as the focus on using philosophical logic to form
legislation had adverse effects. Critics of Utilitarianism said that its application to legislation
resulted in the “mechanization of human life “as well as” a contemptuous disregard for the
individual” (829).3. Thus Utilitarianism gave rise to social reform as well as social protest such
as Dickens' Oliver Twist.
Bentham's Utilitarianism
http://www.m1cvf.co.uk/ethics_utilitarianism.php

A) Introduction:
This teleological theory looks to the consequences of actions. It is opposed to Kant's theories. What
is right is to promote the general good (good for everyone) from our actions and rules. If we must
have rules, they are decided upon by working out which of them produces, or maybe expected to
produce the greatest balance of good over evil. The principle of utility is the sole alternate of right,
wrong and obligation. Moral ends are to be sort in all we do to establish the greatest possible
balance of good over evil. In most cases the end justifies the means.
Jeremy Bentham said that there must be some measurement of good and bad. Early in the 19th
century he drew up his Hedonic Calculus (the balance between pain and pleasure) to measure
pleasure and pain. It has seven dimensions:
• Intensity - how deep it the pleasure or pain
• Duration - how long will the pleasure or pain last?
• Certainly - is the pleasure or pain certain or uncertain?
• Propinquity - is the pleasure/pain near or far away?
• Fecundity - is it going to be followed up by sensations of the same kind?
• Purity - is it pure/pleasure or is it going to be tinted by the opposites? (Think about Sadism!)
• Extent - the number of persons it extends to?
Bentham said it was wrong to have power over people. Either you work with people or for people
when giving money to them. If you work with people, then people have a choice to do want they
want with the money they are given. They are "autonomous" (self-ruling). If people work for you,
they give gifts or money but they do it to get a sense of power as they have more material wealth
than you do. Mother Teresa worked with people and she aimed for social justice.
N.B. It appears from the calculus that Bentham's concerns was about the quantity of pleasure as
opposed to the quality of pleasure.
B) The Quality of Pleasure:
John Stewart Mill claimed there was a fault in the Hedonic Calculus because it was concerned
with the quantity rather than the quality of pleasure. For example if guards are happily torturing a
prisoner, the quantity of their pleasure may be massive compared with the prisoner's pain but is
there any quality in their pleasure?
Slavery - The majority benefit in a household from having a few slaves and the happiness of the
slave owners out weighs the suffering of the slaves but is there any quality in the slave owner's
happiness? To counterbalance these situations, Mill set about replacing quantity with quality. He
still claimed, like Bentham, that pleasure is the sole intrinsic good, but in addition he claims that
there are higher pleasures of the mind and lower pleasures of the body. He claimed by introducing
quality, the problems caused by slavery and the torturers are eliminated because the pain of the
prisoners and the slaves outweighs the pleasures.
"It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied
than a fool satisfied."

C) Act Utilitarianism (AU):

Act Utilitarianism holds that you sort out what is right or obligatory. It is done by trying to see
which of their actions open to you will or is likely to produce the greatest balance of good over
evil in the universe. (Examining their actions). What effect will my doing this act in this situation
have on the general balance of good over evil? The question they do not ask is what affect will
everyone doing this act in this kind of situation have on the general balance of good over evil. AU
may accept that generally telling the truth is useful but every time they have a choice, they have to
ask themselves, in this case is it for the general good? (See Situation Ethics). AU must decided
wherever the affects of their action will influence others because the influence you have on others
is an affect of your action, orbit an indirect affect - viewed adultery, violence in the home, etc.
D) Criticisms of AU:
A particular act may be made - right or wrong - by facts about it rather than the amount of good or
evil it produces. (Kant - intrinsic good - right in itself) It maybe wrong to do this act because it
involves breaking a promise or telling a lie.
• Should a poor man steal from a rich man to feed his family? If every poor man stole the rich man's
things, then it would be unfair.
• Should society punish the innocent person, either to be held up as an example or to prevent riot
or panic?
• Should a woman not keep her promise to pay a boy who has done work for her because she has
a better use of the money?
• A businessman owes money to a person who is wealthy. He has the money but decides to send it
to the third world, as he will cause more pleasure to help the third world than to make the
payment.
E) General Utilitarianism (GU):
They ask, "What would happen to the general balance of good over evil if everyone were to do
this action?"
Taking the instance of the poor man stealing from the rich man to feed his family, the GU would
have to ask what would happen if all the poor and needy stole from the rich and the answer they
would give would be that it is wrong. That would be unfair on the rich. This brings into play the
principle of universability. However, the poor man might argue that if no one knew he is doing it
and they do not copy his actions, then he is still producing the greatest happiness for his family by
stealing. That is why the GU has had to add universability to the AU theories.
Criticisms:
The poor man might argue that if all poor men stole to feed their families then they would all be
better off. The majority would be happier than the minority (the rich). At this point the GU has no
answer. It can not show his actions to be wrong. One has to coincide that his action is right or
reject utilitarianism completely.
F) Rule Utilitarianism (RU):
A reflection of Mill on Bentham's original idea.
It has found in recent years. It highlights the centrality of rules in morality. In general, we are to
appeal to a rule like truth telling, rather than by asking what particular action will have the best
consequences in situation. (AU) But we must always consider wherever our rules promote the
greatest good. Not what action has the greatest utility but which rule. The principle of utility is to
determine the rule, not the action. The rules must be selected, maintained, revised and replaced on
the basis of utility and nothing else. (How useful they are at the time in question). If they are not
useful they must be changed.

It is for the greatest good if we do not lie. This means, for the RU; it may be right to obey a rule
like telling the truth simply because it is so useful to have that rule. When, in that particular case,
telling the truth does not lead to the best consequences.

Bishop Berkeley is a critic of AU and GU. He says we do not have the time or we are ignorant of
the facts, or we are bias or prejudice to sort out each action as it arises as if an AU would so we
must have some rules. RU theories can be put in practice in society today.
AU - I want to abort my baby because that is the kindest action for all. It is my decision alone.
Authority is the Hedonic Calculus. More pleasure/less pain for the majority.
GU - We all want to abort our babies and all have the right to. This will promote the greatest
happiness for the greatest number.
RU - Warnock Report - There must be some rules. In some circumstances abortion is forbidden.
There must be medical advise.
G) Practical Objections to Utilitarianism
1. Can you measure pleasure? Is it possible to measure the intensity of pleasure against the time it
lasts? Or a long lasting pleasure against a shorter pleasure?
2. Should we pursue economic growth and luxury at the expense of all generations to come and
leave a worn out world? We can eat, drink and be merry pursuing happiness and have the world
in a worse state than we found it. Is this a moral position? Some critics think that the welfare state
of the 20th century was born out of utilitarian principles and has encouraged dependence and
has stopped initiative.
One person's happiness is another person's misery. Practicality to make laws for majority
happiness when human interest and passions are so varied is difficult.
3. Does the general happiness for all count as greater happiness of the few? Here we are back to
the example of the innocent man being sacrificed to prevent a riot. The majority are generally
happier because there is no riot. What about the happiness of the innocent man's family? The
individual in this case. Justice has not been done.
4. As pleasure and pain are the only considerations of the Hedonic Calculus, and not who has or
what has pleasure or pain, you could extend the argument to the animal kingdom. Pleasure is
pleasure and pain is pain. Animal pain is still pain. It could be argued that the utilitarian should
cause no animal pain. Some critics claim this is mere sentimentality.
5. Utilitarianism is a reductive, minimalistic ethic. It reduces ethics to the single dimension of
happiness. The question the utilitarian asks will any great harm result from this action and not the
question of what can be done to further the happiness and pleasure of others. Certainly a
Christian criticism would be that life is not merely about seeking pleasure.
6. Bentham would have wished to see his theories universalised, and was himself quite selfless in
some of his actions. There are many who would use the pursuit of happiness as an excuse for
their selfish behaviour. Generally humans are not selfless in their approach to life. Most people
will look after their family but not attempt to maximise the happiness of the whole of mankind.
Christian teaching could be accept this selfish approach (agape).
H) Theoretical Objections to Utilitarianism:
• Love in Christianity is central and agapic. It is self-sacrificial. It may not bring pleasure in the same
way as Bentham means. It is serving God and being dutiful. Some question wherever pleasure and
happiness are intrinsically good (Kant disagrees). Mill never claimed happiness could be proved
to be good. He merely observed it was what most people desire and consequently ought to be
the outcome of our moral actions.
• Can the end ever be made the soul justification of the moral action? History is full of accounts of
dreadful crimes committed claiming that the end justifies the mean, e.g. Hitler killing the Jews,
the Crusades - Christianity going wrong - making people Christians. There is little consideration of
any real sense of justice, if you follow the end justifying the means. Justice for every man is
important. The innocent must be respected even if the well-being of the majority suffers, e.g.
Slavery - the masters' benefit but the minority are sacrificed: Jesus' crucifixion. This issues brings
into conflict two opposing views:
o "You do not use your judgment, it is more to your interest that one man should die for the
people than the whole nation should be destroyed." High Priest after Jesus' death.
o William Watson is possibly quoted as writing (C16th), "Let justice be done, though the
heavens fall."
• Utilitarianism almost rejects the motive behind the action as unimportant. Most other
philosophies including Christian thinking requires you to look at your motives. (Sermon on the
Mount). The Christian motive would be love; the Kantian is good will. Christians are warned that
the intention is important. They must not be hypocrites seeking to praise or persona; reward. As
long as the consequences are good, anything goes for the utilitarian.
• Is there a place in morality for duty for duty's sake; not because of a consequence that is produced.
Sometimes we see it as our duty or obligation to do something and not to think about the
consequences for us, or anyone else.
o There is little place for God's will in utilitarianism. The Christian does not expect happiness
all the time. Obeying God's will may not bring about immediate earthly happiness on all
occasions. A Christian striving for earthly happiness would seem unnecessary if you are
going to have eternal happiness with God.
o Happiness and pain are not paramountly necessary to a Christian. Pain is often to be gone
through for some unknown reason.
o Goodness comes from the nature and purpose of God, not necessarily from happiness.
Jesus invites his followers to suffer with him on occasions when he says his followers must
also "take up their cross". Kolbe, Father Damian (Leper).
 Principles of Jermy Bentham and Supreme Court of India Case Comment: Olga Tellis and
Ors. v. Bombay Municipal Corporation and Ors.
Written By : Sandeep Pathak, III year B.B.A.LL.B. (Hons.) National Law University,
Jodhpur
Olga Tellis v. Bombay Municipal Corporation (herein after referred as Olga Tellis) was decided
in 1985 by the five Judges Bench of the Supreme Court of India. The Hon'ble bench comprised of
C.J., Y.V. Chandrachud, J., A.V. Varadarajan, J., O. Chinnappa Reddy, J., S. Murtaza Fazal
Ali and J., V.D. Tulzapurkar. This case came before the Supreme Court as a writ petition by
persons who live on pavements and in slums in the city of Bombay. It was prayed by the petitioners
to allow them to stay on the pavements against their order of eviction. The majority judgment
(concurring by all the five Judges) was delivered by Hon'ble Chief Justice Y.V.Chandrachud.
Factual Score of Olga Tellis
The writ petitions were filed by the slum dwellers and pavement dwellers before the Supreme
Court of India. This class of people constituted nearly half the population of the city of Bombay.
The respondents - State of Maharashtra and Bombay Municipal Corporation took a decision that
all pavement dwellers and the slum or bust dwellers in the city of Bombay will be evicted forcibly
and deported to their respective places of origin or removed to places outside the city of Bombay
section 314 of the Bombay Municipal Corporation Act, 1888. Pursuant to that decision, the
pavement dwellings of some of the petitioners were in fact demolished by the Bombay Municipal
Corporation. The petitioners challenge the order of the Bombay Municipal Corporation of eviction
as being unreasonable and unjust without providing with alternative living facility. The petitioners
claimed right to livelihood as a part of their right under Article 21 of the Constitution that is right
to life under Article 32. Moreover, petitioners contended that sections 312, 313 and 314 of the
Bombay Municipal Corporation Act are invalid as violating Articles 14, 19 and 21.
Issues Considered by the Apex Court
1. That the order for the eviction of the pavement is the infringement of their right to livelihood
and in turn the encroachment over their right guaranteed under article 21 of the Constitution.
2. That the impugned action of the State Government and the Bombay Municipal Corporation is
violative of the provisions contained in Article 19(1) (3), 19(1) (g) and 21 of the Constitution.
3. That the procedure prescribed by section 314 of the Bombay Municipal Corporation Act,
1888 for the removal of encroachments from pavements is arbitrary and unreasonable.
Decision of Supreme Court
The decision of the Supreme Court in this case was based on the humanistic approach of the judges
and the Apex Court stepped into the activist role. The Hon'ble Supreme Court held that the slum
dwellers must get the alternative shelter if they are evicted from the pavements. Although, the
eviction orders were held to be valid under article 14 and 19 of the Constitution. In fact, the right
to life was once again enlarged to engulf the right to livelihood as being a part of liberty of an
individual. The decision of the Court also focused on the concept of the welfare state and reliance
though not expressly but impliedly was placed on the Directive Principles of the State Policies
under the Constitution.
Rationale, Reason and Jurisprudence of Olga Tellis
The decision of this case essentially falls back on the premise of the positivism. The judgment
delivered by C.J., YV.Chandrachud is solely based on the concept of the analytical positivism of
Britain. The letter of law was considered to be paramount. The Supreme Court focused on both
the premises, that is, reformation and superiority of the law. In Para 28, Justice Chandrachud took
the approach propounded by Hans Kelson, where he considers constitution as a highest norm or
the Grundnorm. According to Kelson, Grundnorm is the basic norm which determines the content
and gives validity to other norms derived from it. On this basis, Justice Chandrachud, observes in
Para 28 that,
there can be no estoppel against the Constitution. The Constitution is not only the paramount law
of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public
interest and are intended to serve public purpose.
Furthermore, it is the theory of the "Father of the English Jurisprudence" - Jeremy
Bentham (1748-1832) that was reiterated by the Apex Court in true sense. Bentham talked about
the reform of the substantive law by the way of reforming the structure of law.
1. Law in the Reformative Process
This case can be said to be a decision that leads to the reformation of the substantive law. Bentham
divided the jurisprudence into two parts, that is, expositorial (what law is) and censorial (what law
ought to be) .Olga Tellis has shifted the focus from censorial jurisprudence to the expositorial
jurisprudence by enlarging the scope of article 21 of the Constitution and including right to
livelihood and right to shelter as a part of right to life. Justice Chandrachud in Para 32 of his
judgment states,
An equally important facet of that right is the right to livelihood because, no person can live
without the means of living, that is, the means of livelihood. If the right to livelihood is not treated
as a part of the constitutional right to life, the easiest way of depriving a person of his right to life
would be to deprive him of his means of livelihood to the point of abrogation.
This view of the Hon'ble Court clearly indicates the follow up of the Bentam's philosophy of
reforming the law through its structure. The law as defined by Bentham is, an assemblage of signs,
declarative of violation, conceived or adopted by the sovereign in a state, concerning the conduct
to be observed in a certain case by a certain person or class of persons, who in the case in question
are or are supposed to be subject to his power .Therefore, this although focuses on the aspect that
law is certain and laid down that is, positum, but at the same time this definition is flexible enough
to be cover a set of objectives so intimately allied and to which there would be such continual
occasion to apply the same proposition . Therefore in the present case when Justice Chandrachud
states that ,"no person can live without means of living" ,he is applying the Bentamite
jurisprudence to reform the law laid down under article 21 and at the same time also utilizing the
flexibility of his definition of law to equate the intimately allied occasions of life, liberty and
livelihood.
2. Hedonist Utilitarianism
Olga Tellis brought the concept of Benthamite philosophy of the Hedonist Utilitarianism. Justice
Chandrachud in Para 1 states that the petitioners form almost half the population of the city. The
fact of such a large number of pavement dwellers in question caused the decision to fall in their
favour. The principle of utility by Bentham stated that, out of various possibilities in a given case,
one must choose that option that gives the greatest happiness to the greatest number.
The Bombay Municipal Corporation Act, 1888 laid down the law relating to the pavement dwellers
under section 312-314. It stated many prohibitions on the housing and depositions of various items
on the pavements by the dwellers. Justice Chandrachud while deciding this case entirely followed
the PRINCIPLE OF UTILITY as given by Bentham and held that the end aim of the legislator
should be HAPPINESS of the people and the GENERAL UTILITY must be the guiding principle.
Apex Court by making a balance sheet between the happiness or the utility of the slum dwellers
with the aim and object of the particular legislation came to a conclusion that justice must be done
only by giving the redressal to the poor and needy pavement dwellers. Justice Chandarchud in Para
49 states that,
Hearing to be given to trespassers who have encroached on public properties? To persons who
commit crime? There is no doubt that the petitioners are using pavements and other public
properties for an unauthorised purpose. But, their intention or object in doing so is not to "commit
an offence or intimidate, insult or annoy any person", which is the gist of the offence of 'Criminal
trespass' under Section 441 of the Penal Code. They manage to find a habitat in places which are
mostly filthy or marshy, out of sheet helplessness. It is not as if they have a free choice to exercise
as to whether to commit an encroachment and if so, where. The encroachments committed by these
persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances
and are not guided by choice. Here, as elsewhere in the law of Torts, a balance has to be struck
between competing sets of values.....
Therefore, the Apex Court had drawn a balance sheet and analysed the Happiness and utility of
the petitioners and the respondents. The Court relied upon the Pelican book in Para 56 and states,
Malnourished babies, wasted mothers, emaciated corpses in the streets of Asia have definite and
definable reasons for existing. Hunger may have been the human race's constant companion, and
'the poor may always be with us', but in the twentieth century, one cannot take this fatalistic view
of the destiny of millions of fellow creatures. Their condition is not inevitable but is caused by
identifiable forces within the province of rational human control.
In the above-mentioned finding by the Hon'ble Supreme Court it is evidently clear that the reliance
was placed on the "destiny of millions of fellow creatures". It signifies the application of the
Bentham principle of utility in the outcome of the judgment of Olga Tellis.
Bentham's justification of his utilitarianism is founded upon four propositions. These are as
follows,
1. All agents (as agents) seek a personal good.
2. Ultimately, all self-conscious agents aim at the same goal (irrespective of the particular context
in which the particular action is performed).
3. That same ultimate goal is always the maximization of personal pleasure (and the avoidance of
personal pain).
4. The proper role of the state is to promote the greatest aggregate pleasure within its community.
The four commands of utility for civic society in the Bentham's Utilitarianism, upon which the
aggregate happiness depends are security, subsistence, abundance and equality. Out of the above,
security was the most important. Subsistence, abundance and equality, however, all depended, in
Bentham's view, on the paramount directive of security. The decision given by the Supreme Court
heavily relies on the entire four propositions given by Bentham (above-mentioned). Justice
Chandrachud in the Para 2 of the judgment lays down the emphasis on the slum dwellers right to
life and reside in any part of the country with dignity as other citizens of the nation. He stated that
an individual can live without security but cannot live without "subsistence" the Supreme Court in
the instant case holding that the Right to livelihood and shelter as being an important component
of the Right to Life again establishes a nexus between subsistence and right to livelihood once
again confirming the abidance of the Benthamite principle of utility. Moreover when the court
established that if the petitioners were evicted from their dwellings, they would be deprived of
their livelihood.
The due recognition is given to the fact that the number of the pavement dwellers was huge and it
constituted almost half of the city's population. Therefore, the test greatest aggregate happiness for
the greatest number is also fulfilled. According to Jullias Stone , by happiness of the community
Bentham meant simply the aggregate of individual surpluses of pleasure over pain. The greatest
happiness of the greatest number states that the pleasure and the pains of the society are to be
weighed at same plane. In this case also the pleasure of the society was upheld and also the pain
of another section of the society (slum dwellers) was brought down.
Then Bentham's principle of utility becomes the principle that we are always to act in such a way
as to give as many people as possible as much as possible of whatever it is that they want. I think
that the interpretation in Olga Tellis preserves the essence of Bentham's doctrine, and it has the
advantage of making it independent of any special psychological theory.
Conclusion
To conclude, the whole Benthamite principle applied by Justice Chandrachud on behalf of all the
brother Justices can be summarized in one sentence stated in Para 46 of the judgment, Human
compassion (happiness) must soften the rough edges of justice in all situations. Thus, it can be
concluded the Supreme Court adopted the Utilitarian Principle in terms of the pleasure and pain
calculus or the hedonistic calculus of Jermy Betham.

Unit 7
Public Opinion
Introduction
Public opinion is shaped by relatively permanent circumstanced and by temporary influences.
Permanent circumstances such as race, religion, geographical location, economic status and
educational level can strongly influence the public opinion. (Individuals or a particular group)
Temporary factors such as impacts of current events effects of main communications media,
propaganda and concerned campaigns of public relations professionals.
It is a survey research in sociology, means collection and analyzing responses of large samples of
people.
Public opinion in Nixon’s Vietnam war- policies, polls showed that 60% of US people considered
war as “immoral” and 70% demanded immediate withdraw from Vietnam.
Importance of Public participation (People’s voice) in Law making process
-Constitution and other law 1``making is not an easy task.
-In societies in which sharply divergent aspirations are present and a common life cannot be
assumed, constitution making is difficult task at best.
-It cannot be supposed that clever-drafting can solve the problem by merely writing around it.
-In countries with socio-economic, cultural and geographical diversity as well as with diverse
aspirations and needs of people it is even more taken as challenging job.
-Hallmark of present day constitution making process is to ensure maximum participation in law
making process.
This is newer form of constitutionalism in order to make law legitimate.
Apparently, it is important in Nepalese context to strengthen democracy and actual justice.
This don’t form an individual’s stand point view but from wider sense.
In contemporary Nepalese constitution building phase, the relationship between people and law is
needed; it can be built through it.
-People’s voice is to have their say in different affairs.
It is a participatory democracy, which is accepted on the quite genius democracy.
It’s not only a constitution but entitles public spaces and direct engagement of people.
It is not an end but means to change and develop society.
-Public hearing, consultation, etc.
-Representative from different diverse sector facilitates the process.
Built on a belief that citizens can be trusted to shape their own future, participatory development
uses local decision making.
Seven standards for people’s voice or public participation are:-
1) The public should have say to decisions about the actions that affect their life.
2) Public participation includes the promise that a public contribution will influence the
decision.
3) This process communicates the interests of people and meets the process of all participants.
4) The process seeks out and facilitates the involvement of people potentially affected by the
proposed decision.
5) The process involves the participants in defining how they will participate, thus the process
will be structure.
6) The public participation process provides participants with the information they need to
participate in a meaningful way.
7) The public participation process communicates to participants how their input affected the
decisions.
Public hearing is basic form of people’s participation.
Features of Public Opinion:
(a) Temporary but efficient in law making.
(b) Modern form of Constitutionalism.
(c) It is conceived as human right as a manifestation to freedom of association and
freedom of assembly.
(d) It also empowers people to engage in public affair and debates as being unit of
society.
(e) It is a democracy beyond voting.
In the Canadian Case of Marshall V. Canada Communication, Case No. 205(1986); In this case
the issue was brought before UN Committee on human rights which held that public participation
in the form of public affairs in an emerging right such as public equality freedom of speech and
association.
Doctors for life international V. The speaker of the National Assembly and other (2006)
Constitutional court of South Africa stated that “Institutionalization of public participation is so
much crucial stage for the nation that is going through law making process and it also makes an
obligation of every state.
Significance of public participation in constitution making process:
1) Representation of different section of society including backward sections in the law
making process.
2) Empowers people to act as guardian of the constitution and creates sense of ownership to
constitution.
3) Institutionalizes public participation as a right.
4) Helps to manage post conflict situation of any society (Bring change and develop society).
Indirect participation of people through election and voting has no meaning in new form of
democracy.
C.A. in Constitution making
C.A. in constitution making process has formed its committee to have public participation issues
wise.
Committee for Co-ordination and public opinion collection, Committee for Resource Management
and Capacity Enhancing and citizen relation Committee has been classified under the procedural
committees.
-Rest of the committees is classified under the thematic committees.
Procedural Committee is relevant to a large context since it deals about public opinion collection
and citizen relation.
Public participation schedule by C.A.
i) Taking questionnaire to people and filling it.
ii) Drafting the constitutional draft based on it.
iii) Taking draft to public for discussion.
For this they used website, interaction program, suggestion collection, etc.
Unit 8
Instrumentalities that influence Social Behavior and Law Making Process
The topic of this lecture is bit odd. It aims at exploring the influences of Education, Media,
Religion, Morality, Economic Structure, Political Structure, Social Structure and Societal Value
system on the law making process. It seems the intention is to study the influences on law rather
than the law making process. It is hard to imagine how the law making process can be influenced
by morality. The course assumes law making process in a democratic society, where legislature
makes law. Therefore, in our lecture we are going to focus on the influences of the above
instrumentalities on law, while also touching upon their influence on the law making process, when
possible.
Morality
It is barely universal or coherent notion. Some may regard something moral while others may
regard very thing immoral. And even when a universal principle of morality is discovered, there
may be disagreement as to their status or relation to the rest of human knowledge and experience.
Hart: apart from Primary Rules identified through official system with the help of secondary rule,
other rules also continue to exist in society, which are termed as non-legal rules including moral
rules.
1. are arbitrarily and subjectively created by society, philosophy, religion, and/or individual
conscience.
2. ideal code of belief and conduct which would be preferred by the sane “moral” person,
under specified conditions.
3. is synonymous with ethics.
Issues of morality are normally decided by conscience and instinct. So morality is something that
comes natural to a person, of course society, values, norms on which that person grows and matures
can have big role.
Lon L. Fuller
He attempted to distinguish ‘the morality of aspiration’ and ‘the morality of duty’. The former is
concerned with the desired norm of human conduct, independent of human activity; the latter
involves the standards followed by human beings in social relations in particular circumstances.
Fulfillment of the morality of aspiration necessitates a legal system which will assist in this task
by the recognition and maintenance of social order. The morality of duty will involve the creation
of acceptable codes of conduct which the law will seek to enforce. Further, law itself must have
its own morality.
Positive and Critical Morality
Positive Morality are those social conventions that created by man. So, positive morality may
become ‘immoral morals’.
Critical morality is the standard by which those social conventions can be judged. But then finding
such standards can be like a dog following its tail. Anyways, some people argue morality and its
coherence can be tested in the public domain. And that morality too shall be, subject to stringent
requirements of rationality. FOR INSTANCE LORD Devlin’s Litmus test/reasonable person test
(No Clapham Omnibus)
However, morality based on unreasonable, irrational and unfair ground slowly but surely loose
their strength and identity and wither away as morality. For example, Sati, Homosexuality (at least
in case of justification provided by the Emperor Justinian, who disapproved homosexuality
because it caused earthquakes) and so forth.
So what is then the place of Morality in Law?
No one denies that morality can figure in legal argument and legal practice.
So debate lies somewhere else. First there lie many important variants in the claim itself that there
is a necessary connection between law and morality. Second there is debate on the issue of extent
of influence of these two standards. Merger or intersection – Hart Fuller Debate.
As far as the issue of variants in the claim, Natural, Positive School (Inclusive and Exclusive Legal
Positivism)
Classical Natural School – first there are certain principles of true morality of justice, discoverable
by human reason without the aid of revelation even though they have a divine origin. Second being
the man-made laws which conflict with these principles is not valid law. Lex iniusta non est lex.
Sometimes moralities are enforced by law.
Examples, Interim Constitution of Nepal Articles 12 (3) (1) & (3), 15 (1)
Where Constitution qualifies the application of right to freedom of opinion and expression, right
to form political party, union and associations, on assurance that such freedom do not go against
public morality.
Public Offence Act 2027, Section 2 (c), (c1), (h)
The Act prohibits acts such as, swearing in public, presenting vulgar materials or signs in public,
behaving improperly in public and so forth.
Emanuel Kant, Regarded laws prescribe external conduct whereas morals prescribe internal
conduct, that is, morals alone are concerned with subjective factors, such as motive.
The Law may be too cumbersome an instrument to justify legal intervention in some spheres, and
might thus do more harm than good, as in the case of some sexual irregularities, or it may be felt
that certain moral duties are best left to the individual conscience, as, for instance, the duty to
rescue a drowning man. Again, many legal questions are morally indifferent, for instance, the rule
of the road, or where a choice is to be made whether a loss is to fall on one or other of two innocent
persons.
Is abiding by a law moral?
Is abiding by a bad, discriminatory and unjust law immoral?
Hart – differences between moral and legal responsibility is due to substantive differences between
the content of legal and moral rules and principles, rather than in semantic distinctions, eg, there
may be important differences in the criteria applied, as for instance, where the law may rely upon
concepts of strict or even absolute liability, which are hard, if not impossible, to reconcile with our
present concept of morality.
Hart…similarities between Moral and legal rules
• They are alike in that they are conceived as binding independently of the consent of the
individual bound and are supported by serious social pressure for conformity
• Compliance with both legal and moral obligations is regarded not as a matter for praise but
as a minimum contribution to social life to be taken as a matter of course
• Both include rules governing the individuals recurring in situations constantly recurring
throughout life rather than special activities or occasions, and though both may include
much that is peculiar to the real or fancied needs of a particular society, both make demands
which must obviously be satisfied by any group of human beings who are to succeed in
living together
Hart – Devlin Debate
Report of the Committee on Homosexual Offences and Prostitution, Wolfenden Report
“It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek
to enforce any particular pattern of behavior, further than is necessary to carry out the purposes we
outlined.”
Hence, the Report suggested the decriminalization of specific homosexual acts between consenting
adults in private, and stressed the significance of two particular principles. First that the function
of the criminal law, in the area with which the Report had been concerned, was to preserve public
order and decency, to protect the public from that which was injurious or offensive and to
safeguard the vulnerable against corruption and exploitation. Second there must remain a realm of
private morality which is not the law’s business.
The report argued that unless a deliberate attempt is to be made by society acting through the
agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of
private morality and immorality which is, in brief and crude terms, not the law’s business.
So, the Report sought to differentiate between Private and Public Morality, and exclude private
morality altogether from the criminal law’s purview.
Devlin in his 1958 lecture criticizes the Report in following terms
Certain moral principles which our society does require to be observed; their breach can be
considered as an offense against society as a whole. The law does not punish all immorality; it
does not condone any immorality. Further, Lord Devlin asks following questions;
1. Has society the right to pass judgment at all on matters of morals? Ought there, in other
words, to be a public morality, or are morals always a matter of private judgment?
2. If society has the right to pass judgment, has it also the right to use the weapon of the
law to enforce it?
3. If so, ought it to use that weapon in all cases or only in some; and if only in some, on
what principles should it distinguish?
In answering first question, Lord Devlin gave a resounding yes. Lord Devlin argued that public
morality is important in keeping a society together and if and when public morality is relaxed, then
members of society will drift apart.
In answering second question, Lord Devlin argued that it is not possible to set any theoretical limits
to the government’s power to legislate against immorality. A society has an undeniable right to
legislate against internal and external dangers. The loosening of communal bonds may be a
preliminary to total social disintegration and therefore a society should take steps to preserve its
moral code. Hence, a society is entitled to use the law in order to preserve its morality in precisely
the same way that it uses the law to safeguard anything else considered essential to its existence.
To the last question, Devlin devises a ‘reasonable man test’ in determining the extent of immorality
that law should address. Under this test first Lord Devlin suggests tolerance of the maximum
individual freedom consistent with society’s integrity. Secondly, when any activity goes beyond
this tolerance limit such activity is punishable, this in-turn is determined by the ‘intolerance,
indignation and disgust’ created in the mind of the reasonable man. Thirdly, Privacy must be
respected and balanced against the need to enforce the law. Finally, since law is concerned with
minima, not maxima, society should set its standards above those of the law.
Hart then criticized Devlin in the following line. First Hart argued that breach of morality will
not necessarily affect the integrity of society as a whole. Second, criminal sanction for private
morality is in all likelihood disproportionate in inflicting misery and pain to the ‘offender’. Thirdly,
the reasonable man test which judges on the basis of ‘intolerance, indignation and disgust’ is vague
and legislature can never be expected to formulate law to such effect. Furthermore, since the degree
of ‘intolerance, indignation and disgust’ may change from society and time there will be lack of
predictability and coherence in law, if Lord Devlin’s arguments were to be supported.
Economic Structure
Economic policy and structure have great influence on law and law making process. Law acts as
a tool to transfer economic principles into practice. For example, liberalization legal tools, WTO
related Laws. In addition, many laws have to speak to the economic structure of the society and
interpreted accordingly. For example, Competition Law.
Political Structure
Many political institutions such as the parliament and their nature, form of governance, structure
of the state, influence of pressure groups, lobbyist have influence on law and the law making
process.
Media, Education, Religion, Social Structure and Societal Value System also influence the law
making process by mooring the process on the foundation of social values and popular aspirations.
In addition, such instrumentalities, allows accountable, predictable and democratic procedure of
law making.
Unit 10
Drafting of Legislation
Policy
Definition

- To address changing need of aspiration of people…For people’s welfare.

- According with national interest.

Source of law

- It is the source of law.

- During Government rule, nation or state need different kinds of rule to govern the people
at this they use policy as a tools.

Basis or group

- Geographical, political, historical, economical, social, cultural, people level of awareness

(civic sense)

Types of Policy
1) Nation/State policy: -Not easily changeable. Example: -Nepal commitment and foreign
policy.
2) Government policy: -During the governance of state. It is comparatively changeable.
3) Political party policy: -Political party policy should be acknowledged and ratified by the
government.

Effects of policy
i)They are the guideline for the government :-acts as directive to government.
ii) Source of law should turn into legal form: -Individual, social interest into law.
iii) Not necessary to be turn into legal for: -Foreign policy, Agricultural policy, foreign aid
policy.
Drafting of Legislation
There are 4 steps of Legislative Drafting. They are as follows:
1)Role of Interest group
The research is to be carried out by some group of people. This group of people is termed as
interest groups. The interest groups may be
(a) Concerned Political parties
(b) Concerned Stakeholder
(c) Concerned Experts
(d) Concerned Local or effected community
(e) Civil society.
Outcome of research are to be discussed to Interest groups. Interest groups have to have some
constructive feedback and complements on it. They have to play major role for lobbing those
research outcome to formulate it as a policy first and secondly for legislation. At first these are to
be developed in the form of policies to cross check its pros and cons in society. After having
positive response in society than they should be given Legal form (Legislation).
2)Identification of legislative problem: -
To formulate the policy, research is to be carried out to the concern stakeholder and take
feedback from then. What kind of effect it may produce? Is it necessary or not? Whether the
problem is there or not? Whether the problem can be solved or not? Is it necessary to be in legal
form or not?
After answering these above questions legislative will be capable enough to find the research
problem for legislative body. Research Problem here means to find out the social wants/ social
interest.
For Ex: Is the lack of practical education cause for the poverty or unemployment in Nepal? Now
legislative has the subject matter (research problem), which is to be address by law making
(Legislation).
3)Framing of legislative policy: -
Among all the diverse issues raised by the interest groups, the legislative has to figure out which
of the policy is essential to establish welfare-state. These kinds of policy are the legislative
policy which is to be taken into parliament to enact it as legislation.
4)Identification of policy alternative: -
If that policies fails than the possible alternative should be formulated.

Drafting Of Legislation
In this Presentation, we discuss on “General Information or Understanding about
Legislation”
Types of Legislation ( Bills)
• Categorization of Legislation is possible based on their “ways or process of origin”.
 • All legislation before they become statutes, originate as “bills” in the Parliament.
• There are two types of bills, or acts.
- A. Public law. Public law bills propose laws that affect all of the people of the State or
all persons or things of a particular class. Since these bills affect the general law, the sections of
a public law bill that are of general or long-lasting application are placed in a systematic legal
framework. (e.g. preamble, operating provisions, special provisions, enforcement mechanisms,
transitional provisions, retroactivity clauses, appropriation or allocation clauses, effective date
clauses and emergency clauses, etc)
B. Private and special law. A private and special law bill is distinguished from a public
law bill in that it has a much narrower scope. A private and special law bill proposes a law that
relates to particular persons or things or to a class of particular persons or things, or operates
on or over a portion of a class instead of the entire class. For example, water and sewer districts
are routinely created by means of a private and special law bill.
No Combination of Two Types of Bills: Occasionally, a bill will propose laws relating to
the people of the State in general (public laws) as well as to particular entities (private and
special laws). A drafter should avoid proposing public laws and private and special laws in the
same bill since determining which provisions are of general application and locating and
indexing the laws would be difficult. If combining them can not be avoided, bills affecting both
public and private and special laws are classified as public law bills.

Elements of Bills
• Drafting of Bill is a systematic process. A bill has the following elements:
1. A. The title. The purpose of a bill title is to provide a general idea of the subject
matter and scope of the bill.
2. A title should be short and descriptive of the content and scope of the bill and should
not attempt to be an exhaustive index of every subject covered by the bill. In addition,
titles should not be overly broad or vague, such as "An Act Concerning Labor."
3. The title of a bill should state the subject of the bill in an objective manner. Avoid using
inflammatory or biased language in the title, such as "An Act to Improve the Moral
Character and Health of the Citizens Nepal by Prohibiting the Drinking of Liquor on
Sunday.“
• The following are examples of bill titles:
• "An Act to Extend the Statute of Limitations for Medical Malpractice Cases"
 • "An Act to Clarify the Traffic Movement Standards under the Site Location of
Development Laws"
• "An Act to Restrict Smoking in Enclosed Shopping Malls"
• "An Act to Establish an Income Tax Exemption for National Guard Members and Certain
Members of the Military"
Preamble
The Mandate Preamble. The mandate preamble appears directly after the bill title and
before the emergency preamble, if an emergency preamble is used.
• Example:
• Mandate preamble. Considering the need to empower the local authorities to exercise
power to generate tax for the local development, this act has been enacted to achieve
the said goal.
• The emergency preamble. The emergency preamble, if used, appears after the title of
the bill. The first and last paragraphs of the emergency preamble are standard in form
and appear in every emergency preamble. The middle paragraphs are used to set out
the background situation that necessitates the emergency enactment as required.
Example:
• Whereas, the situation of the law and order is constantly deteriorating, it is necessary to
adopt a special law to curb the problem and protect the life of people.
• The Enacting Clause. The enacting clause appears after the title of the bill or, if the bill is
an emergency measure, after the emergency preamble. The enacting clause reads: “The
Bill enacted by the parliament inn the reign of HM……”
• The Main Body of the Bill. The main body of the bill contains the substantive language
of the bill as well as the technical provisions listed below. Not all of the elements listed
are necessary in all, or even most, cases. When the inclusion of some of these elements
is necessary or desirable, they are arranged according to the type of law affected, as
discussed in this part of the manual. Within that order, the sections are further arranged
by category as follows:
• Short title. A short title section, one that establishes the popular name of an act, is not
mandatory, but often is useful when referring to that law elsewhere in the statutes and
for use by courts, Legislators and others when dealing with that law as a whole. The
following is an example of the standard language used in a short title section:
Example: This chapter may be known and cited as the “Vital Events Registration Act
Act."
- Purpose clauses. As a rule, purpose clauses, however titled, should not be included in
acts. A well-drafted law does not require the inclusion of an aid for interpretation, and the
unnecessary inclusion of a purpose clause may actually obfuscate the plain meaning of
substantive provisions, leaving the court to guess the Legislature's true intent. Another danger
in using these clauses is that drafters tend to rely on purpose clauses to convey the intent of
the Legislature in lieu of including language in the substantive provisions of the law that
effectuate that intent. However, purpose clauses may be used:
a. To strengthen a law against a constitutional challenge; or
b. When there are major changes in existing law, such as in a recodification, and there
may be uncertainty as to whether the changes should be construed as merely an update of
existing language or structure, or as a substantive change in legislative intent.

If, for purposes other than those listed above, a guide for interpretation is necessary,
consider including a rule of construction in the statute rather than a purpose clause or using the
summary to express the purpose of the legislation.
• Example: Rule of construction. This section must be liberally construed. If, however, the
use of a purpose clause can not be avoided, the clause should be concise and should
address the specific construction problem. Purpose clauses should not contain any
substantive provisions.
- Definitions. A definition section should be included in a bill only when necessary. A
definition may be used to:
a. Maintain clarity and consistency when the draft contains terms that may be
interpreted differently from their common meanings;
b. Define words that are difficult or technical; or
c. Define terms that may be substituted for longer terms or phrases used repeatedly in
the law.
• If a word has a common meaning and is clearly understood without a special
explanation, a definition should not be used. A definition section should never include
substantive provisions of law.
• The standard language used to introduce a definition section is: "As used in this (Title,
Part, chapter, section, etc.), unless the context otherwise indicates, the following terms
have the following meanings."
• Defined words should be arranged alphabetically. When writing definition sections, use
the term "means" rather than "shall mean“.
 • Example: Definitions. As used in this chapter, unless the context otherwise indicates,
the following terms have the following meanings.
• Commissioner. "Commissioner" means the Commissioner of CIAA.
• Institute means the institute established under the CIAA Act.
• If a definition is intended to be illustrative rather than exhaustive (i.e., rather than
setting out all items covered by the word, the definition sets out only examples of the
type of item to be covered by the word), the term "includes" is used. An example of an
illustrative definition would be: "Tuna" includes that fish commonly called a horse
mackerel.
• General rules, permanent provisions and most significant provisions. These sections
set out the main portions of the law or the general rules that will apply to the persons to
whom the law is addressed. These sections form the core of the enacted law and should
be clear and concise. Each separate idea or rule should be expressed in a separate
section.
• Subordinate provisions, temporary provisions and exceptions. These sections include
any major exceptions to the general provisions and rules set out in the preceding
sections and also include minor provisions of the law that are of less general application
or interest. Administrative provisions, for example, would be included in these sections.
• In a provision that includes language granting an agency rule-making authority,
the drafter must identify in the bill whether those rules are "major substantive" or
"routine technical.“
• - Penalty or enforcement provisions. When a law requires or prohibits a certain
action or type of conduct, it is generally necessary to include an enforcement
mechanism such as a penalty or sanction for failure to comply.
• Housekeeping. The main body of a bill may include several technical housekeeping
provisions. These sections are placed at the end of the main body of the bill. The most
common of these sections, listed in the usual order of their appearance, are as follows.
a. Savings or application clause. General savings clause is a provision that preserves
preexisting rights that have vested before a change in the law. Laws, however, may require
special savings clauses to address special problems created in the passage of those laws. If, for
example, current procedures or actions will be disrupted when the new law takes effect, a
savings clause may be used to exempt from the law. Likewise, if rights or duties already have
matured or proceedings have begun, the drafter may wish to limit the application of the new
law.
• Examples: Savings. This Act does not apply to any license or permit proceeding, appeal,
reconsideration or other action pending before the effective date of this Act.
b. Transition clause. When a state department or agency is reorganized or abolished or its
duties are significantly altered, it is often necessary to provide for the transfer of the functions,
property and personnel of the prior agency to the new agency or to accommodate the change
in duties. This is accomplished through the use of a transition clause.
• Example: Transition provisions.
• CIAA is the successor in every way to the powers, duties and functions of the former
institution on prevention of corruption.
• c. Revision clause. If a bill changes the name of a state agency or other entity or changes
the proper name of a code or act throughout the entire Maine Revised Statutes, a
revision clause is the preferred way to change the references. A revision clause may be
relied upon only to make uniform changes; if individual changes are necessary, those
changes should be made in an allocated bill section. The revision clause should be
drafted carefully to include all phases affected by the intended change. For example,
when changing the name of a department, the name of the commissioner of that
department must be changed also.
• - Severability clause. If any provision or application of a law is invalid, the valid
provisions or applications of that law are unaffected. Thus, the inclusion of a severability
clause in a bill is unnecessary and may result in confusion since a court may attach
significance to the presence of a severability clause in a law, given the absence of those
clauses in other laws.
- Non severability clause. If the sponsor of a bill intends the bill to be considered an
inseparable whole and does not want the bill sections to be severable, a non severability clause
is necessary.
• Example: Non severability, If any provision of this Act or its application is held invalid, it
is the intent of the Legislature that the entire Act is invalidated.
• - Appropriation sections. An appropriation is the Legislature's authorization for a
person or organization, generally a state agency, to make an expenditure from the
Consolidated Fund. In other countries appropriation sections are usually drafted by the
Office of Fiscal and Program Review (OFPR). An appropriation section should be drafted
to provide, in as few words as possible, a clear and concise identification of the
particular funds, department or agency program, the purpose of the appropriation and
the fiscal year involved.
• Retroactivity clause. A bill that has a retroactive application should be drafted with
caution. Courts generally will not give a law retroactive application unless the intent of
the Legislature to make it retroactive is clear and unambiguous.
 • Effective date clause. The general effective date for acts is 90 days after the
adjournment of the session of the Legislature passing those acts. Any act that does not
contain an emergency preamble and clause or a provision that sets a specific effective
date takes effect on the general effective date.
• - Emergency clause. If any part of a bill is to become effective immediately upon
approval or sooner than 90 days after adjournment of the Legislature, it must be passed
as emergency legislation and must contain an emergency preamble and an emergency
clause. It is the emergency clause that indicates when the bill becomes effective. The
emergency clause, like the effective date clause, is placed at the end of the main body of
the bill. The emergency clause may provide that the bill will become effective
immediately upon approval (i.e., immediately upon assent of the King.
• Referendum clause. A Legislator may wish to submit a proposed bill to the voters of the
State or of the area being affected by the bill before the bill takes effect. This submission
is done through a referendum clause, which appears at the end of the body of the bill,
generally replacing the effective date clause. The referendum clause provides that, upon
passage by the Legislature, the act must be submitted to the voters of the State or other
unit, and if the voters accept the act, it will take effect at some specified time, usually
following calculation of the vote and proclamation of those results.
Law making: Policy Discussion
Policy
Definition
• Set of ideas or a plan of what to do in particular situations that has been agreed to
officially by a group of people, a business organization, a government, or a political
party:(http://dictionary.cambridge.org/dictionary/english/policy)
• It is the source of law.
• During Government rule, nation or state need different kinds of rule to govern the
people at this they use policy as a tools.
• Examples:
• No smoking is company policy.
• policy of marrying among the cadre within the party.
• She advises the president on African policy.
• The school has an enlightened policy of teaching boys to cook.
• The president's speech proclaims a new era in foreign policy.
Types of policies
• Nation/State Policy: mention in the constitution, they are not easy to change for e.g.
Nepal’s commitment on the foreign policy
• Government Policy: During the governance of the government according to the priority,
comparatively changeable
• Political parties policy: may propose according to the ideology and principles
• Policy of the institutions/private forms/ companies: may be limited in application and
temporary goals
Nation/State Policy:
• (m) Policies relating to international relations:
(1) to conduct an independent foreign policy based on the Charter of the United Nations, non-
alignment, principles of Panchsheel, international law and the norms of world peace, taking into
consideration of the overall interest of the nation, while remaining active in safeguarding the
sovereignty, territorial integrity, independence and national interest of Nepal,
(2) to review treaties concluded in the past, and make treaties, agreements based on equality
and mutual interest.
• (l) Policies relating to tourism: To develop eco-friendly tourism industries as an
important base of national economy by way of identification, protection, promotion and
publicity of the ancient, cultural, religious, archaeological and natural heritages of
Nepal, to make environment and policy required for the development of tourism
culture, and to accord priority to local people in the distribution of benefits of tourism
industries.
Effects of policy
• i)They are the guideline for the government :-acts as directive to government.
• ii) Source of law should turn into legal form: -Individual, social interest into law.
• iii)Not necessary to be turn into legal for: -Foreign policy, Agricultural policy, foreign aid
policy.
Drafting of Legislation
• There are 4 steps of Legislative Drafting. They are as follows:
1)Role of Interest group
2)Identification of legislative problem: -
3)Framing of legislative policy: -
 4)Identification of policy alternative: -
1)Role of Interest group
• The research is to be carried out by some group of people. This group of people is
termed as interest groups. The interest groups may be (a) Concerned Political parties (b)
Concerned Stakeholder (c) Concerned Experts (d) Concerned Local or effected
community (e) Civil society.
• Outcome of research are to be discussed to Interest groups. Interest groups have to
have some constructive feedback and complements on it. They have to play major role
for lobbing those research outcome to formulate it as a policy first and secondly for
legislation. At first these are to be developed in the form of policies to cross check its
pros and cons in society. After having positive response in society than they should be
given Legal form (Legislation).
2)Identification of legislative problem: -
• To formulate the policy, research is to be carried out to the concern stakeholder and
take feedback from then. What kind of effect it may produce? Is it necessary or not?
Whether the problem is there or not? Whether the problem can be solved or not? Is it
necessary to be in legal form or not?
• After answering these above questions legislative will be capable enough to find the
research problem for legislative body. Research Problem here means to find out the
social wants/ social interest.
• For Ex: Is the lack of practical education cause for the poverty or unemployment in
Nepal? Now legislative has the subject matter (research problem), which is to be
address by law making (Legislation).
3)Framing of legislative policy: -
• Among all the diverse issues raised by the interest groups, the legislative has to figure
out which of the policy is essential to establish welfare-state. These kinds of policy are
the legislative policy which is to be taken into parliament to enact it as legislation.
4)Identification of policy alternative: -
• If that policies fails than the possible alternative should be formulated.

Legislative Drafting
(Theoretical and Practical Aspects)
What is Legislative Drafting?
 • Narrower sense: Drafting of Act
• Broader sense: drafting of Constitution, Act, Ordinance, Rules, Bylaws and all forms of
legislative instruments
• It is a process of converting state policies into legislation.
• Legislative Drafting is Science as well as Art.
➢ Science- Basic Principles related to drafting
➢ Art- Knowledge of Language and Writing Skill
Basic principles of Law Drafting
• Simplicity
• Conciseness (Economy of words)
• Consistency
• Directness
• Familiarity of Language
• Orderliness
• Avoid over drafting
• Avoid vagueness
Language and Writing Skill
• Plain Language
• Gender neutral language
• Precision
• Clarity
• Particular Format
– Long Title – Part/Chapter
– Preamble – Article/Section/Rule/Bylaw
– Enabling Clause – Sub article/Subsection/Sub Rule
– Short Title – Amendment clause
– Definitions – Schedule
Definitions
• ‘Drafting’ refers to the practice, technique or skill involved in preparing legal
documents-such as statutes, rules, regulations, contracts and wills- that set forth the
rights, duties, liabilities and entitlements of persons and legal entities. - Black's Law
Dictionary
• Law drafting is the process of converting new policy into legal rules in legislation, in the
appropriate legal form and style, prior to the act of Law-making. - OECD
• Legislative drafting is a skill acquired by drafter through years of experiences obtained
through painstaking labor and work. - B.R. Atre
Limitations of Legislative Drafting
1. Constitutional limitation
• No constraint on FR
• No death penalty
2. General Principles of Law and Justice
• Rule of Law
• Natural Justice
• Judicial Review
3. Self Constraint
• Rational
• Reasonable
• Certain Concepts
Legal Principles
o Principle of Equality
o Principle of Punishment
o Principle of Retrospective Effect
o Directive Principles and Policies
o Principles of Interpretation of Laws
o Principle of Jurisdiction
o Principle of Delegated Legislation
 o Principle of Inclusion
o Principle of Certainty/Predictability
o Principle of Legal Binding
Stages of Legislative Drafting
1. Ministerial/Drafting Stage:
▪ Concerned ministry or stakeholders initiates to draft a bill
▪ Law ministry has the authority to finalize the drafted bill
2. Parliamentary Stage:
▪ Presentation of drafted bill in the House
▪ Discussion on the drafted bill
▪ Passed by the House
▪ Certification by the President
Concept Paper for New Law
1. Requirement of New Law:
a) Constitutional Reason
b) International Obligation
c) Supreme Court’s Decision
d) Government’s Policy and Program
e) Any other reason
2. Achievement after the implementation of new law
3. Existing Law on proposed subject, if any
4. Reason why the amendment of existing law can’t achieve the result
5. Method of special policy approved by the government on proposed subject, if any
6. Official involved in the policy making
7. International practices on proposed law
8. Brief of any suggestions provided by any institution that researched on the proposed
subject matter, if any
 9. Annual Financial expenses for the implementation of the proposed law
10. Requirement of additional infrastructure, if any
11. Opinion or approval from any other ministry or institution, if required
12. Main issues covered by the proposed law

Problems in Legislative Drafting

• Lack of clear policy in law making
• Lack of homework while preparing a draft
• Lack of enough research
• Lack of effective interactions with the policy makers and the stakeholders
• Lack of effective participation of concerned ministry
• Lack of resources

Unit 11
Law Making Process in Nepal
Legislative Drafting/Bill Drafting
-The process of converting new policy into legal rules.
-Dickerson has defined it as 1st thinking and 2nd comparing of Legislation.
B.R. Atre defines- The Drafter must not lost sight of a fact that the legislative drafting is a science
and also an art and he must be familiar with all intricacies of this art.
- Science: - Universal application of certain set of rules.
- Art: - Sense of the use of language of skill + art.
The basic Principles of Legislative/Bill Drafting:
1) Pre-publication of draft to public and Parliamentarian: - For transparency and public
reaction to the draft.
2) Principle of Equality: - Equal voting right is to be provided to all the parliamentarian.
3) Rational and Essential Procedure are to be followed.
4) Neutrality of House speaker as “Referee”.
5) Respect and response to the minority parliamentarian.
Types of Bill: -
Basically Bill is divided into 3 categories:
(a) According to the subject matter: -
(i) Economic Bill: - Bill is relation to governmental finance tax, audit of government
account.
(ii) Ordinary Bill: - Rest other ordinary bill.
(b)According to the Bill passing procedure:
(i) Government Bill: - Financial Bill, Bill concerning security agencies Nepal Army,
APF, Nepal Police, Act. 84.
(ii) Private Bill: - Bill presented other than by Government Ministers. Act. 84.
(c)According to the objective: -
(i)Main Bill: - Based on some certain subject matter.
(ii)Dependent Bill: - Bill dependent to main bill.
(iii)Amendment Bill: -
(iv)Constitutional time increment Bill: -
(v)Ordinance: - Act. 88.
Importance of Legislative Drafting:
(1) This systemizes the process.
(2) This balance between substantive and procedural part.
(3) This turns policy into law.
(4) This helps to create relationship between policymaker, drafter and interest group.
Bill Drafting and Passing (Bill Passing Procedure)
There are 4 major steps in Law making process:
(1)Pre-drafting stage: -
(a)Initiation: -
It should be initiated in the related department to the subject matter in case of Government
bill. Individual Parliamentarian should initiate private bill.
(b)Requirement: -
-The drafter should have background and sound knowledge to the issue.
-They should analyze the problem.
-It should have need basin assessment.
(c)Necessity: -
- Research is to be carried out (what, how and when?)
-consult with public about the legislative problem.
(d)Functions: -
-Formation of Legislative proposal.
-Consultation with Ministry of Law and Justice.
-Approval of the cabinet.
-Further process of drafting after cabinet decision (Principally approve).

(2)Drafting Stage:
(a)Structure of Draft: -
(i) Long title
(ii) Preamble
(iii) Enacting formulation
(iv) Short title
(v) Commencement and extent
(vi) Definitions
(vii) Substantive Provisions
(viii) Institutional/Administrative forms
(ix) Punishment and Compensation
(x) Miscellaneous Provisions (LPESCDSIPM)
(b) Approval of draft from the concerned ministry.

(3) Parliamentary Stage/Procedure for passage of bill

(Act. 85. legislature-Parliament Act 2063, chapter 12.)
(a) Any member, who wants to introduce a private bill in the house, should have prior notice
of 7 days to the secretary General of the Legislature-Parliament.
Prior 5 days notice for Government bill.
(b) Copies of bill should be available to all members, 2 days before introduction of bill.
(c) Introduction of bill in the Parliament.
 (d) The clause-wise discussion in the house or in the concerned committee. Report of the
Committee.
(e) Amendments to Bill.
(f) Withdrawal of the bill, (Act 86)
(g)Bill passes by simple majority of the total number of the member of the house.

Post Introduction Stage:

Certification of the Bill (Act 87): - Bill passed by house shall become an Act after certification by
the speaker of the Legislative Parliament. And authenticate by President.

Committee Hearing: - (Act 85, (4), (5)), sent to it, if we clause-wire discussion by speaker.
(a)Legislative Committee:- Members of the Parliament or any governing body are given
responsibility for legislation and overnight on a particular subject.
(b)Committee will have authority to forward question to the presenter, consult with experts and
provide the committee report, whether to amend, approve on the bill, within 24 hours.
(c)Bill may be set twice to committee.

Plenary Discussion: -
(a) It includes introduction of bill in the house
(b) Amendments
(c) Committee
Final Adoption: -
(a) Call for voting whether to pass or reject the Bill.
By-Lawn Making Process: -
(a)Supreme Legislation has authority to make by laws like rules, regulations for the fulfillment of
procedural aspects and enforcement. (Not tax and punishment)
(b)By-laws, indirect legislation should be within the scope of direct legislation (made by
parliament).
(c)It should be draft by concern Institutional/administrative body. It has same drafting process as
of ministrative body.
(d)The concern department should approve and certify it, If require the certify through concern
Ministry.
Ordinance (Act 88):
(a)If government render the necessary of any act during absence or surpertion of parliament. Then
the government may promulgate any ordinance.
(b)An ordinance has some force and effect on Act.
(c)It should be passed within 60 days in the next session of parliament.

Unit 15
Importance of Legal Research in Law Making Process
Background to legal research
• Clifford Woody : “Research comprises defining and redefining problems, formulating
hypothesis or suggested solutions; collecting, organizing and evaluating data; making
deductions and reaching conclusions; and at last carefully testing the conclusions to
determine whether they fit the formulating hypothesis.”
• In a broadest sense, any research (study, investigation, observation etc.) that is
undertaken in legal studies could be called as legal research. For e.g. we may not only
do legal studies, but we may also observe, investigate and compare available
resources if we have to make a new law on same-sex marriage in Nepal.
• In a strict sense, the process of locating a right authority to solve a legal problem could
also be called as legal research. For e.g. the process of locating Muluki Ain’s
appropriate provision on property to see if we need amendment on Chapter of
property.
• Legal research, on the whole, involves the process i.e. the process of knowing a
problem, research planning (how to solve a problem) and the application of planning
until our problem is solved.
Stages in legal research
Generally, these following processes are involved during research:
1. Choosing the research problem
2. Review of related literature
3. Formulation of Hypothesis
 4. Research design
5. Collection of data
6. Interpretation of data
7. Preparing the research report
Why legal research in law making process?
• Remember previous units i.e. what we studied?
• Can a law maker obtain information doing nothing?
• Who are interest group? How they can be contacted? What could be their interest?
• Why we are going to make laws? What are existing legal provisions? What are existing
policies supporting them?
• How can problems be solved with the help of laws?
• Is legislative solution the best one? Is it the last resort? Are there any other alternatives
available?
• Were similar efforts been made previously to solve a given legal problem?
• Why to do research and what are our constraints? May be human resource, may be
finance, may be expertise etc.
Importance of legal research in law making process
• Legal research allows us opportunity to follow scientific and organized methods
(observation, experimentation, epistemology, induction, deduction etc.) to solve a given
legal problem.
• Legal research has also enhanced our skills and understanding of law. For e.g. we use
different forms of citation, we try to gather as much as information as possible, our
mind has turned inquisitive, we use comparative methods in legal analysis. It also keeps
us updated with the recent legal development and has helped us to develop critical
analytical skills while drafting laws.
• Legal research, on the whole, is a very creative process that involves not only comparing
and selecting right laws among available laws and selecting a right policy among best
available ones, but also applying them to a particular case i.e. to our problem.
• Law is constantly changing. It is repealed, it is amended and new laws are made. A court
makes judgment frequently and subordinate legislations are also made frequently.
Therefore, law makers, while making new laws or even repealing or amending laws,
 need to update themselves about the recent developments for which legal research is
importance.
• While making laws, law makers can choose one legal research methods among multiple
ones. For e.g. doctrinal, interview, analytical, experimentation, inductive, deductive etc.
• A good bill can only be drafted if legal research is followed. If drafters have done
adequate research, then there are chances that the bill will be easily passed.
• For law makers it is important to do legal research not only about issues purely legal
issues, but also social, economic, cultural, political etc. issues because a law often
relates with these disciplines.
• Legal research is also important for law makers in order to know, follow and apply
existing rules of law drafting for e.g. use of punctuation marks, use of commas,
grammar, formats, language etc. Even a slightest mistake may create a huge impact in
the future, therefore such mistakes should be avoided.
• Therefore, since law making process is a problem solving process legal research should
always be followed. A research is always done in order to solve problem. That could be
related with past events ( for e.g. decentralization vs. federalism), could be present
events (for e.g. ‘And’ vs. ‘Or’ debate) and future events (making laws to prevent impact
of climate change.)

Importance of Legal Research in Law making process

Legal Research: -
S.R. Myneni: - The systematic investigation of problems of and matters concerned with law such
as codes, acts, etc.
-To obtain better knowledge and understanding of any problem of legal philosophy, legal history
comparative study of law, or any system of law international and municipal.
-Discovering new legal facts and verification of the old ones.
Components of Research: -
1. Manipulation of things, concepts or symbols.
2. For the purpose of generalization.
3. To extent, correct or verify knowledge.
4. The knowledge may be used for construction of theory or practice of art.

Objectives of Legal Research: -

1. Evaluative: -

To find out how a legal rule came into being and what it is.
 2. Explanation: -

To ascertain the nature, scope and source of law in order to explain, what law is?
3. Identificatory: -

To ascertain for whose benefit legal research is made.

4. Impact Analysis: -

Impact analysis of Legislation.

5. Projective or Predictive: -

To find out the degree of social acceptance to the anticipated or propose legislation.
Importance of Legal Research in Law making Process can be found in 3 areas: -
1. To formulate new Legislative: -
-Existing law or Legislative mechanism does not serve such modern necessity, new
aspiration and desire.
-Therefore to co-up-with the change and problem new legislations are formulated.
-For the enactment of new legislation, adequate knowledge, information and appropriate
remedy to combat is required.
(i) To make new legislation effective, the following aspects must be kept in mind:
(a)Identification of problems: -
Fact finding operation, survey study, which is generally conducts to access the opinion,
behavior of society.
Example: - To be aware of crucial problems of the society, prostitution.
(b)Explanation of causes: -
To find out the reason or causative factor of the problem.
Example: -To find out the cause of prostitution.
(c)Formulation of policies/legislation: -
Example: -If the root cause of prostitution is poverty, then legislation is to draft to alleviate
poverty.
(d)Critical Functions: -
Find the weakness and the strength of formulated act.
(ii)Method of formulating new legislation: -
(a)Analytical Research Method: -
 -1st, researcher should have knowledge of law making.
-2nd, the researcher should have sound knowledge of several statute.
-3rd, the researcher has to locate the needed statutory material.
-4th, a researcher should study prevailing customs.
-5th, a researcher has to study case law on particular legislation.
-6th, a researcher has to make a choice between 2 or more conflicting views and select the best
one.
(b)Historical Research Method: -
1) It provides social insight.
2) Historical oriented (facts and events to be studied in the historical perspective)
3) Historical evolution of law
(c)Comparative Research Method: -
-Comparison of International and National Law
-Comparison of one country law to other.
(d)Ethical Research Method: -
Moral values, principle.
(e)Statistical Research Method: -
Use of different tools and techniques of collection of data, questionnaire, interview, etc.
(f)Critical Research Method: -
Collect the data from secondary source and use own wisdom and experience to it.
(2)To reform existing Legislation: -
-Law is not static but a dynamic one.
-It is reformed according to need of society, time and country.
(3)To find the situation of application and acceptance of existing legislative: -
-Legal research helps to find out
(i) Consequence of existing legislation.
(ii)Shortcoming of existing legislation
(iii)Level of understanding of legislation in society.
Characteristics of Legal research
1. The legal research deals with the social and behavioral phenomena. It studies behavior
of human being as members of the society, and their feeling responses, attitudes under
different circumstances.
2. Legal research is carried on both for discovering new legal facts and verification of the
old ones.
3. Legal research tries to establish causal connection between various human activities. At
the first causal look at various human behavioral attitudes, moods and temperaments,
the presence of any system may appear to be an impossibility , but a close research
study is bound to disclose the truth, that most of them are motivated by definite rules
and universal laws,
4. Legal research tries to give solution to legal problems.

Legal research as interdisciplinary approach

Interdisciplinary involves the combining of two or more academic fields into one single
discipline. An interdisciplinary field crosses traditional boundaries between academic disciplines
or schools of thought, as new needs and professions have emerged.
Originally the term interdisciplinary is applied within education and training pedagogies to
describe studies that use methods and insights of several established disciplines or traditional
fields of study. Interdisciplinary involves researchers, students, and teachers in the goals of
connecting and integrating several academic schools of thought, professions, or technologies -
along with their specific perspectives - in the pursuit of a common task.
Over the past few decades, academic legal research has become more and more
interdisciplinary. Abandoned the old, traditional notion of law as a self-contained discipline,
legal academics have identified in economics, social sciences, and politics, among other things,
some of the subjects “outside” of the law that are most commonly intertwined with legal
issues. They have also started to use methodologies and schemes distinctive of these fields to
analyze legal matters.
In particular, two different, interdisciplinary legal approaches have become rather popular in
academia: law and economics (hereinafter also referred to as “L&E”) and critical legal studies
(or “CLS”).
Purpose of Legal research
The purpose of legal research is to find "authority" that will aid in finding a solution to a legal
problem. The processes of legal research vary according to the country and the legal system
involved. However, legal research generally involves certain tasks such as:
1) Finding Primary authority. Primary authorities are the rules of law that are binding upon
the courts, government, and individuals. Examples are statutes, regulations, court
orders, and court decisions. They are generated by legislatures, courts, and
administrative agencies.
2) Searching for Secondary authority for background information about a legal topic.
Secondary authorities are commentaries on the law that do not have binding effect but
aid in explaining what the law is or should be such as law reviews, legal dictionaries,
legal treatises, and legal encyclopedias such as American Jurisprudence and Corpus
Juries Scandium.
3) Searching non-legal sources for investigative or supporting information.

Sources for Legal research

To conduct legal research, an individual can refer to primary or secondary sources.
➢ Primary sources are those sources that will be binding in a court, such as references to
case law or to a statute.
➢ Secondary sources are resources that are not binding and that cannot be referenced in
court documents, but which provide a person with a good idea of where to look to find
binding sources. A secondary source might be a Restatement of the Law, which is a book
published by legal experts that collects all the important decisions and rules on a given
legal issue, or might be a law review article, which is an article published in a scholarly
journal.
Objectives for legal research
➢ to gain familiarity with legal phenomena;
➢ to discover new facts;
➢ to test and verify old facts;
➢ to analyze the facts into new theoretical framework;
➢ to analyze the consequences of new facts;
➢ to develop new legal research tools;
➢ to develop new legal concept;
 ➢ to evaluate law from historical perspective;
➢ to explain nature and scope of law;
➢ to distinguish the weakness or merits of old legal aspects;
➢ to analyze the effect of new legal system or law on society;
➢ To predict the consequence of new act;
➢ to interpret the acts in critical way;
➢ to collect the legal facts of particular area and to test hypothesis of a cause-effect
relationship between variables and concepts.

What is Legal writing?

Legal writing is a type of technical writing used by lawyers, judges, legislators, and
others in law to express legal analysis and legal rights and duties. In many legal settings
specialized forms of written communication are required. In many others, writing is the medium
in which a lawyer must express their analysis of an issue and seek to persuade others on their
clients' behalf. Any legal document must be concise, clear, and conform to the objective
standards that have evolved in the legal profession. The purpose of this writing is to
communicate various legal rights, analysis, and legal duties etc. Unlike regular writing, legal
writing is technical and involves continuous dependence on citations, gives importance to
precedence and uses special legalese that sounds very formal. However of late, there has been a
move to reduce such very formal style of writing and to make legal writing simple enough for
the layman to understand. However one must remember that then purpose of legal writing is to
make a precise document and an informal style may make a legal document's intentions hazy.

Characteristics of legal writing

A. Authority
Legal writing places heavy reliance on authority. In most legal writing, the writer must
back up assertions and statements with citations to authority. This is accomplished by a
unique and complicated citation system, unlike that used in any other genre of writing.
The standard methods for American legal citation are defined by two competing
rulebooks: the ALWD Citation Manual: A Professional System of Citation and The
Bluebook: A Uniform System of Citation. Different methods may be used in other
countries.
B. Precedent
Legal writing values precedent, as distinct from authority. Precedent means the way
things have been done before. For example, a lawyer who must prepare a contract
 and who has prepared a similar contract before will often re-use, with limited
changes,the old contract for the new occasion. Or a lawyer who has filed a successful
motion to dismiss a lawsuit may use the same or a very similar form of motion again in
another case, and so on. Many lawyers use and re-use written documents in this way
and call these re-usable documents templates or, less commonly, forms.
C. Vocabulary
Legal writing extensively uses technical terminology that can be categorised in four
categories:
1. Specialized words and phrases unique to law, e.g., tort, fee simple, and novation.
2. Quotidian words having different meanings in law, e.g., action (lawsuit),
consideration
(support for a promise), execute (to sign to effect), and party (a principal in a lawsuit).
3. Archaic vocabulary: legal writing employs many old words and phrases that were
formerly quotidian language, but today exist mostly or only in law, dating from the
16th century; English examples are herein, hereto, hereby, heretofore, herewith,
whereby, and wherefore (pronominal adverbs); said and such (as adjectives).
4. Loan words and phrases from other languages: In English, this includes terms
derived from French (estoppel, laches, and voir dire) and Latin (certiorari, habeas
corpus, prima facie, inter alia, mens rea, sub judice) and are not italicised as English legal
language, as would be foreign words in mainstream English writing.
D. Formality
These features tend to make legal writing formal. This formality can take the form of
long sentences, complex constructions, archaic and hyper-formal vocabulary, and a
focus on content to the exclusion of reader needs. Some of this formality in legal
writing is necessary and desirable, given the importance of some legal documents and
the seriousness of the circumstances in which some legal documents are used. Yet not
all formality in legal writing is justified. To the extent that formality produces opacity
and imprecision, it is undesirable. To the extent that formality hinders reader
comprehension, it is less desirable. In particular, when legal content must be
conveyed to nonlawyers, formality should give way to clear communication.
Beside these we also need to careful in punctuating, using commas, full stops and so
on while writing a legal text. A mistake can change the meaning of whole text
completely.
Types of legal writing
Legal writing is of two broad categories:
(i) Legal analysis
(ii) Legal drafting

(i) Legal analysis

It is the process of analyzing the legal problems of issue. It is futher divided into
a) Predictive legal analysis, and
 b) Persuasive legal analysis
a) Predictive legal analysis : It explains and applies the authorities in predicting an
outcome, and ends with advice and recommendations. The legal memorandum is the
most common type of predictive legal analysis; it may include the client letter or legal
opinion. The legal memorandum predicts the outcome of a legal question by analyzing
the authorities governing the question and the relevant facts that gave rise to the legal
question.
b) Persuasive legal analysis : The persuasive document, a motion or a brief, attempts to
persuade a deciding authority to favourably decide the dispute for the author's client.
c) (ii) Legal drafting
d) Legal drafting creates binding, legal text. It includes enacted law like statutes,
rules,and regulations; contracts (private and public); personal legal documents like wills
and trusts; and public legal documents like notices and instructions.

Unit 16
Role of Law Commission
• Law Commission: Universally, the practice has been that law commission are
established for drafting and amending laws.
• It was established in Nepal for the first time in 1953 by the executive order.
• It was previously known was ‘Nepal Law Reform Commission’. It was established and
formed under Executive decision and there was not a separate law establishing and
regulating affairs of Nepal Law Commission. It’s name implied that the aim of this
commission was to reform laws.
• Nepal law commission was formally and permanently established by the Nepal Law
Commission Act 2007. Since then it has been a permanent statutory body.
• However, it should be understood that it is an important organ of the government that
looks after legal issues, specially with regard to drafting, amendment and review of
laws.

Nepal Law Commission (NLC)

• Preamble of the 2007 Act mentions that NLC is established for:
1. Drafting of law
2. Codification of law,
3. Amendment of law
4. Unification and review of prevailing laws and,
5. Conducting study and research on law and justice.
• In addition, to the preamble, Sec. 3(1) of the Act also mentions that the NLC is
established for same. It is located in Katmandu.
 • The Commission comprises of one chairperson and vice-chairperson and, other
members. Among seven members, one has the power to act as the secretary of the
commission.

Composition of the NLC

1. Chairperson: Who has already served as a Judge of the Supreme Court or a person being
qualified for the same post
2. Vice-Chairperson: Who is discharged of a duty as a Gazette Special Class of Nepal
Judicial Service or law-practitioner with the experience of at least fifteen years as Senior
Advocate or Advocate or, a person having gained experience of teaching, research,
drafting of law or in the sector of law or justice at least for fifteen years.
3. Members: (a) Three members in maximum, one women, appointed by the government
from among those who are eligible to be appointed as vice-chairperson, (b)Secretary of
ministry of law, (c) Secretary of Prime Minister’s office, (d) Deputy Attorney General
and, (e) one member to act as a secretary

Role of the NLC

Sec. 10 of the Act is the major provision that sets out functions, duties and rights of commission
and it is where we find NLC’s role:
• It has the role to make or to study and research on (i) enactment of new law, (ii)
amendment of existing laws or, (iii) the contemporary issues relating to law and justice.
Therefore, NLC has the role to do research and study so that new laws are made and old
ones are amended upon the need of society.
• It has to prepare necessary draft for codification of law and submit it to the
government.
• It has to unify or review the prevailing laws and to provide necessary suggestion for the
government. For e.g. we can take the example of its website that illustrates how it has
been unifying laws both old ones and existing ones.
• It has to submit a draft (with explanatory notes) regarding enactment of new law and
amendment of prevailing law as per necessity. For e.g. it has been drafting Act on
protection of witness, Act on protection of victim etc. (mentioned in website)
• It also has the obligation to study about the laws which are obsolete, contradictory to
each other, unequal, discriminatory, conflicting with human rights. After having such
done, it has to suggest the government to repeal, amend or review such laws. For e.g.
the Bill relating to the Management of the Crime and Punishment of Sexual Harassment
at the Workplace can be taken as one example.
 • To provide draft or suggestion to the government for inclusion of the covenants of
international treaties and agreements in the prevailing laws. For e.g. in the case of
above bill, NLC can say that it is to comply with international human rights.
• It also plays an important role to facilitate public opinion in law making process. It has
the duty to make consultation, discussion and interaction with concerned agency and
organization in regard to drafting, codification, integration, review, reform and
development of laws as per necessity.
• Additionally, it may co-work with the concerned agency for the above purpose. For e.g.
if NLC thinks appropriate to amend laws relating to education facilities, it may co-work
as well as co-ordinate with Department of Education.
• Sec. 10(i) specifically mentions that it could also collect public opinion, views and
suggestions while making laws. In order to do so, it can launch programs like
symposium, seminar and interaction.
• It can also ask for service of experts for study, research and drafting of special type of
laws. For e.g. it may do so due to lack of expertise on subject matter.
• It also sees if the principle and precedents laid down by the Supreme Court has been
incorporated or followed in laws or if laws are compatible to them and then can submit
draft to the government to make, repeal, review or amend those laws.
• Sec. 10 also mentions that the role of the NLC may be as prescribed by the Government
of Nepal and as deemed necessary by the commission. It mentions that other roles of
the commission may be decided later. For e.g. the role of NLC in terms of translation of
Acts and Regulation, along with Constitution and archive of old laws in its website can
be taken as an example of its proactive role.
• Thus, it could be argued that it is very important statutory body established by the
government for the development and effective, contemporary as well as people friendly
laws.
• At last, make sure that you will study Law Commission Act, observe few Acts that are
drafted by law commission as well as few Acts that are reformed and amended by the
law commission. These all are easily available at the law commission website.

नेपाल कानून आयोग

Nepal Law Commission

Background
The Nepal Law Commission (NLC) was first constituted by an executive decision in 1953,
immediately after the dawn of multiparty democracy. The second, third, fourth and fifth
Commissions were constituted in 1960, 1963, 1972 and 1979 respectively. All those Commissions
were temporary in nature. The NLC was given permanent status only in 1984. After the restoration
of multiparty democracy in 1990, the NLC was restructured with the mandate commensurate to
the changed context. It was again restructured in 2003 with timely changes in its mandate and
composition. Now, the Commission is a statutory body under the Nepal Law Commission Act,
2007, which was promulgated on 14th January, 2007. It is to note that until then it used to be
constituted by the executive decision.

Composition of the Commission

The Commission consists of nine members including the Chairperson, Vice-chairperson and seven
members.
The Chairperson and the Vice-chairperson are appointed by the Government of Nepal for five
years. Other three members consisting of at least one woman are nominated by the same for two
years. Retired judge of the Supreme Court or one who is qualified for the same is eligible to be
appointed as the Chairperson. Person retired from the post of special class of Nepal Judicial Service
or a person having fifteen years of experience as a law practitioner or law teacher or working in
the field of law and justice including legal drafting may be eligible for the post of Vice-chairperson
or member of the commission.
The Secretary at the Ministry of Law, Justice and Parliamentary Affairs, Secretary (Law) at the
Office of the Prime Minister and Council of Ministers, Deputy Attorney General nominated by the
Attorney General of Nepal and the Secretary at the NLC, who also serves as a Member-Secretary,
are ex-officio members.
The Government may appoint up to five members as honorary members to the Commission from
amongst outstanding experts in the pertinent field.
There is a provision of a Recommendation Committee composed of the Minister for Law, Justice
and Parliamentary Affairs, Chairperson of the Law, Justice and Parliamentary Committee of the
House of Representatives* and Chairperson of the Nepal Bar Association to recommend to the
Government for appointment in the post of Chairperson, Vice-chairperson and members of the
Commission.
Function, Duty and Power of the Commission
To draft new legislation and amendment of the statute with explanatory notes,
To codify, unify and review existing laws,
To draft legislation to include treaty obligation,
To exchange ideas and information with law commissions and law drafting agencies of other
countries,
To carry out study and research works on legal field.
To make consultation with stakeholders,
To obtain expert service.
To prepare annual programs and annual progress report,
To accomplish other functions relating to law and justice as prescribed by the Government and as
deemed necessary by the Commission itself,
To make necessary recommendation to the Government.

Process of Discussion on Consultation Paper

1. Initiation of tasks: The commission may initiate drafting and law reform process either on
referral of the concerned ministry or on its own. It may also receive a proposal from
stakeholders, i.e. individual, non-governmental organization, civil society and community
organization.
2. Formation of Working Team: The Commission decides annual program on the basis of the
priority and forms working team (WT) involving experts to work on approved area by
providing clear mandate and time frame. Generally, one member of the Commission heads
the WT or it is headed by any reputed personality in the relevant field.
3. Preparation of Consultation Paper: The WT carries out in-depth study of the issue under
review. For this purpose, WT may invite expert, stakeholder and government official for
consultation as an invitee member. The WT prepares a consultation/issue paper and it is
made available to any person interested. WT can also opt appropriate methods of research
for data collection.
4. Organizing Seminar/Workshop: On the basis of responses to the consultation/issue paper,
the WT prepares its initial draft report with provisional recommendations. Thereafter, the
 WT may organize seminar/workshop inviting prominent scholars, activists and other key
stakeholders. The initial draft report is circulated well in advance to the participants,
inviting for well-versed comments.
5. Final Report and Draft Bill: On the basis of output obtained from seminar/workshop, the
WT prepares final report and drafts a Bill with explanatory notes. The final report of the
WT is handed over to the Commission for deliberation. Each report and draft Bill is
presented by the WT in the Commission meeting. Both the Report and the Bill are finalized
by the Commission.
6. Submission to the Government for Further Action: The final report along with the draft
Bill is submitted to the concerned Ministry for further action. Where possible, the
Commission’s final report is published. Such report is made available in NLC library.

Strength of the Commission

It is a statutory body with clear mandate to carry out law reform activities.
Provision of obtaining required assistance by the concerned government institutions in carrying
out the functions of the commission.
Prominent members in their respective fields.
Qualified and skilled human resources in legal research and law drafting.
Ability and demonstrated willingness of human resources to conduct study and research work in
an empirical and scientific manner.
Participatory and transparent approach.
Provision of procuring consultant and expert services.
Provision of forming working team or subcommittee comprising experts from a range of
backgrounds.
Facility of library, meeting hall and access to internet.
Standard research methodology and working procedures.
Congenial working environment.
Administrative Structure and Staff
The Secretary at the NLC is the administrative head of the organization. Under the Secretary, there
are two Divisions headed by Joint-secretaries, viz. the Research and Drafting Division that carries
out the line functions of the Commission and the Administrative Division that is entrusted to
perform administrative tasks. Under each division, there is one section headed by Under-secretary
who is supported by a Section Officer. There are other sixteen subordinate employees. The NLC
has a total strength of 23 human resources.

Unit 17
Behavior and Accountability of Law Makers
Behavior and Accountability
• Lawmakers are entrusted with huge responsibility-the task of law making.
• Law making carries challenges and are mostly tedious– tiresome.
• Law makers will give legal effect to a policy (remember its type) for changes to address a
social, economic or political need. Therefore, a complete drafting knowledge is not
enough. Rather, they should also be educated, well mannered and should be
accountable.
• Unlike code of conducts for lawyers and judges, its rarely seen that law makers are
supposed to follow something similar.
• Therefore, law makers need to possess not only drafting skills but also knowledge, high
morale, multi-disciplinary approach etc. and need to be accountable.
• Although, there may not be or is not (for e.g. in case of Nepal) set of practices regulating
behavior of law makers, their behavior should always respect existing laws of the
country.
• They should know about law making process, challenges that might come and
approaches of handling them.
• They should maintain close relationship with the voters and public. Then only they
would be able to know what are the choices and interests of voters and public so that all
could be incorporated in law through law making process.
• Their mind also needs to be open and creative. A preoccupied mind and less creative
mind might not be suitable for a good law maker. In no open mind, interest groups’
demand may not be fulfilled and if no creative mind, law makers may fail to make a
good legislation.
• They are accountable towards:
 1. Voters or electors: While law makers are elected by people, their primary accountability
is towards those who elected them. Therefore, in most occasions we find law makers
introducing bills for the benefits of places from where he/she was elected.
2. Parties: Law makers are also hugely accountable towards their own parties. As a result
in law making process, party whip will make a huge impact. Even if a particular law
maker vote against a party whip, he/she will be question by his party.
3. Parliament and its committees: Being law makers, they are supposed to be accountable
towards parliament and also towards committee, if he/she is a member.
4. Existing and relevant laws: Accountability of law makers also is towards existing and
relevant laws. For e.g. a dafter making regulation on taxation will be accountable
towards tax office.
5. Legislative branch of the state is the most important branch because it has a direct
relationship with the people. Therefore, their behavior should be people friendly.
6. Their personal interest, characteristics and even any other kinds of influences and lack
of knowledge should not be a factor influencing any law making process.
7. In a real democratic world, their behavior and accountability is of a real essence as well
as important.
8. Failure of maintaining a good behavior such as being involved in corruption and failure
of maintaining accountability such as not drafting constitution within a time may
jeopardize whole Parliament as well as whole nation. For e.g. the amount of money that
we have already spent in order to get a new constitution.
9. Legislature always exercise a wide range of discretionary powers and authority to make
laws. For e.g. a law does not say bill on a specific issue should be made by a particular
law makers. Likewise, legislature can choose their personal experiences and knowledge
while drafting or making laws. Here, they will be exercising their discretionary power.
But, the discretionary power should be accountable, should not be absolute and should
not be used with malafide intention.
10. Their good behavior and accountability will ensure participatory approaches in law
making process, good governance, rule of law and, will strengthen democracy.
Case
• Adv. Uttam Shrestha and others vs. Office of Prime Ministers and Council of Ministers
and others NKP 2070, DN 9059, Issue 10, Magh:
Legislature should make laws in fair, just and reasonable manner.
 Behavior and Accountability of Law maker
A Legislator:
- Person who writes and passes the law.
- Usually politician, often elected by people
- Different names are provided to it like Parliament, Diet, Legislative Assembly,
Congress.
When there is room for interpretation, the intents of the Legislator will be questioned, and the court
is supposed to rule in the direction, that it judges to fit the legislative intent the best, -which can be
uneasy, in the case of conflicting laws or constitutional provisions.
Formulating new legislation is not an easy task. In fact, it requires comprehensive study done by
legislators, regarding various issues.
There is question, whether the criteria, education, requirement and training is required for
legislators or not?
Constraints
Legislator should be confine between some constraints while formulating law or fulfilling their
role and responsibility.
(a) Constitutional Constraints:
Some constraints are mentioned in constitution like no death penalty, no exile to
anyone, no prohibition to political parties, etc.
(b) Legal and Natural Principles Constraints:
Like: - rule of law, natural justice, fair trial- right to hearing, appeal, Judicial review
(c) Self-restrained limitation:
Like: - Law should be reasonable, rational, judicious, good conscience.
Authority
(a) Legislature with absolutely define authority:
- Legislature has authority to formulate law on fixed and defined subject.
- Not other than that.
- American Congress can only formulate law in monetary, finance, public welfare and
altogether 18 issues.
(b)Legislature with absolutely non-defined authority:
- Like: -British Parliament, New Zealand Parliament and Italian Parliament.
 - There is non-defined authority to make legislation on any issues.
(c)Legislature with relatively defined authority:
- India and Germany parliament.
- Indian federal parliament has some authority to make law.

Legislator must keep in mind

i.Draft or passing of any law should be contextual.
ii.Knowledge about other related prevailing laws.
iii.Precedent.
iv.Use of simple word.

Weapons for Legislator for law drafting and pairing

1. Constitution
2. Policies
3. Law on Interpretation
4. Precedent
5. Foreign Laws
6. Legal dictionary
7. Convention, treaties
8. Prevailing Acts
9. Articles of Jurist and experts.

Part-6: (Interim Constitution,2063)

Art. 50: Speaker and Deputy-speaker elect them.
Art. 53: Quorum, One-fourth to be present.
Art. 55: Voting: - Majority vote to decide
Art.56: Privileges (Remuneration)
Art. 58: Committees
Unit 18
Difference between law making and order making and, interpretation of law and constitution
Law making vs. Control making
• Law making is a mostly legislative act (in case of Act it is Parliament and in case of
Rules/Regulations it is Executive), while control making is not a legislative act and it is
mostly an executive act.
• If a parliament is making a law, it is called as law making. However, if a parliament is
investigating into some public interest issues such as investigation over fund
irregularities, investigation over assigning construction of fast track road to Nepal army,
investigation over tender notices, investigation over election disputes that happened on
May 14 it can be called as control making.
• Law making is concerned with future aspect, while control making is concerned with
past aspect. For e.g. a law tries to solve future problem, while a decision to control over
something or some person will try to solve a problem that was already caused.
• Law making targets general public, while the control making mostly targets to whom the
issue or concern has been raised against.
• Parliament exercises law making while making laws, while it exercises control making
when it has to see if delegated legislation made by the executive has complied with
Constitution, Act or principles and policies of the State. For e.g. see Regulation number
117 of the 2073 Parliamentary Regulation 2073.
• Both law making and control making are functions of a parliament, but both are
different in nature because law making is the sole authority and major task of
parliament while control making is secondary authority and task of parliament.
• By law making process, legislature makes laws while by control making process,
legislature controls the activities of the Executive. Legislature acts a control mechanism
over Executive and sometimes over Judiciary too under the notion of separation of
power and check and balance. Sometimes parliament also controls over issues
surrounding foreign policy and international relations.
Interpretation of law and constitution
• Interpretation of law and constitution are done in different ways. Interpretation of
something means ascertaining the meaning or significance of that thing or ascertaining
an explanation of something that is not immediately obvious. Construction and
Interpretation of a statute is an age-old process and as old as language.
 • According to Grey, it is the process by which a judge constructs from the words of a
statute book, a meaning which he either believes to be that of the legislature, or which,
he proposes to attribute to it is interpretation.
• According to Salmond, interpretation is the process which the courts seek to ascertain
the meaning of the legislature through the medium of authoritative forms in which it is
expressed.
• There is a different subject under which interpretation of law and constitution are done
and its called as ‘Statutory Interpretation’. Sometimes also called as ‘Statutory
Construction’.
• Interpretation of law and constitution is very important aspect of law, which helps to
know about true intent behind any law and constitution.
• Always remember that no matter how hard we have tried to make a law and
constitution as a best one, there will always be flaws in its drafting.
• Interpretation will help to address such flaws and fulfill lacunas of the law and
constitution.
• Interpretation are only done, when there is ambiguity in law and constitution.
• R.S. Nayak v A.R. Antulay, AIR 1984 SC 684: “... If the words of the Statute are clear and
unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of
the words used in the provision. The question of construction arises only in the event of
an ambiguity or the plain meaning of the words used in the Statute would be self
defeating.”
Some rules of statutory construction:
1. NOSCITUR A SOCIIS : Words must be construed in conjunction with the other words and
phrases used in the text. Legislative intent must be ascertained from a consideration of
the statute as a whole.
2. EJUSDEMGENERIS: Where a statute describes things of particular class or kind
accompanied by words of a generic character, the generic words will usually be limited
to things of a kindred nature with those particularly enumerated, unless there be
something in the context of the statute to repel such influence.
3. EXPRESSIO UNIUS EST EXCLUSION ALTERIUS : The express mention of one person, thing,
or consequence implies the exclusion of all others.
Some rules of statutory construction:
• REDEENDO SINGULAR SINGULIS : Referring each to each; let each be put in its proper
place, that is, the words should be taken distributively.
• POLITICAL QUESTION DOCTRINE : It implies that the Court should not look into cases
that has political questions involved in it. Remember the Court is entrusted with
interpretation of laws and not of political questions and situations therefore the Court
should refrain from seeing cases having political questions.
• DOCTRINE OF HARMONIOUS CONSTRUCTION: The doctrine or the rule of harmonious
construction is adopted when there is a conflict between two or more statues or
between the parts or provisions of the statues. As per this doctrine the courts try to
avoid conflicts between the provisions of the statutes. The doctrine follows a very
simple rule that every statute has made for a purpose and specific intent as per law and
it should be read as a whole and interpreted accordingly.