Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 6, Issue 1, April 2018
Feature Article

Cultural Dimension of Rule of Law and Social Episteme

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  • Yubaraj Sangroula
Yubaraj Sangroula
Executive Director, Kathmandu School of Law, Nepal
Bio

Published 2018-04-30

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How to Cite

Sangroula, Y. . (2018). Cultural Dimension of Rule of Law and Social Episteme. Kathmandu School of Law Review, 6(1), 1–39. Retrieved from https://kslreview.org/index.php/kslr/article/view/960

Abstract

Rule of Law, despite being subject to wide attention and acceptance without any dispute, has enough ground to be critically analyzed from dimension and dynamism of the cultural practice of every concerned country adhering to the norm. Since social episteme of the country is perfectly and variably unique to each other, no exact notion regarding rule of law can be imported and exported like a business commodity. Thus, this paper, in detail, sheds ideas on difference of rule of law in oriental and occidental jurisprudence. Deeming the harmonious society with stable peace as fi nal outcome of rule of law, this very paper builds an alternatively concrete insight on rule of law that befi ts the change of time and essence of divergent societies.

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References

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  42. Rigobon & Rodrick (2005) found that while democracy and rule of law are both related to higher GDP levels the impact of rule of law is much stronger. See, Roberto Rigobon & Dani Rodrik, ‘Rule of Law, Democracy, Openness and Income: Estimating the Interrelationship’, vol. 13, no. 3, Economics of Transition p. 533, 2005.
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  53. Thomas Pogge, ‘Priorities of Global Justice’, vol. 32, no. 1-2, Metaphilosophy p. 6, January 2001, pp. 6-7.
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  55. ‘Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights’, Asia-Pacifi c Human rights Information Center available at https://www.hurights.or.jp/archives/other_documents/section1/1993/04/final-declaration-of-the-regional-meeting-for-asia-of-the-world-conference-on-human-rights.html, accessed on 25 December 2017.
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  57. See Yubaraj Sangroula, Jurisprudence: The Philosophy of Law, Kathmandu School of Law, Kathmandu, 2010, 1st Chapter.
  58. See ‘Sarve Bhawantu Sukhinah’, 10 April 2009, Sri Nv Raghuram available at http://nvraghuram.blogspot.com/2009/04/sarve-bhavantu-sukhinah.html, accessed on 4 January 2018.
  59. D. C. Lau (tr), Confucius: The Analects, Penguin Books, London, 1979, p.88.
  60. Vedas are main texts of establishing Hindu tradition of philosophy. These are considered sacred documents written about 3 to 4 thousand before Christian era. Written poetic verses, these documents discuss on every aspect of human life, including the system of governance, duties of the king and his officials, wealth and means and methods of earning wealth and so on.
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  63. Kautilya who is also known as Chanakya has elaborately discussed this issue repeatedly in his treatise known as Arthasatra.
  64. James Fieser (n 62).
  65. Ibid.
  66. Miko Matsuoka, 'Buddhist Concept of Human Being from Viewpoint of the Philosophy of Soka Gakkai’, vol. 15, the Journal of Oriental Studies, 2005.
  67. See Sangroula (n 20).
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  69. Equality’ as an aspiration of the Social Contract theory constitutes a basis for ‘system of just and reasonable distribution of opportunities and advantages’. Philosophically, the ‘equality in treatment to worth of human person’ is an axiom, a priori, in which the State’s obligation to ‘proper distribution of resources’ is founded. Equality thus embodies salience of what Immanuel Kant said ‘categorical imperative.
  70. Definitions of law essentially associating with the concept of 'State' as an indispensable representative of the people emerged in post medieval Europe. Roman law was largely a body of rules based on works of jurists. Early common law was also developed by the customary practices of people themselves. TheNormans however converted common laws into prescriptive rules. Oriental laws however were a body of principles worked out by experts, and the State was free to pick up such principles to apply. The king had no power to declare rules of law. See Sangroula (n 20).
  71. Human rights are universal and inherent and necessarily constitute ‘the indicators of rationality’ of State’s laws and behaviours. Human rights are not justified only because they are ‘inherent to humanbeing’, but also because they ‘entangle right and duty correlativity’ as a salience and are of capable of being implemented by ‘institutions of States.’ 72. As a body normative values of justice, the rule of law provides theoretical or doctrinal justification to the laws and policies adopted by the State. Viewing from this perspective, equality would be an instrument pursuing people, with full satisfaction, to approve ‘laws and policies’ adopted by the State. A non-discriminatory law would be ‘rational’ law viewing from this aspect.
  72. To achieve perfect function of law with the sense of equality in treatment of all human individuals is the ultimate goal of human rights regime. An individual exercises his/her claims, powers, privileges and immunities in order to assert his/her worth of human person equally respected and protected.
  73. System of governance is evaluated as fair delivery of services. The government policy of decentralization is considered impartial because it devolves power to people and empower people to participate in governance policy. A special hospital for disabled people can be justified because it provides a special service for them. The rule of law is a benchmark in all these projects.
  74. These rights are five in types: 1. Right to the protection of physical integrity of every individual. 2. Right to the protection of personhood of each individual. 3. Right to the freedom of choice in profession and cultural values. 4. Right to the competent education for building capacity for higher and efficient productivity. 5. Right to economic entrepreneurship.
  75. Barry M. Hager, ‘The Rule of Law: Defining it and Defending it in the Asian Context’, in The Rule of Law: Perspectives from the Pacific Rim with a Foreword by Jerome A. Cohen, The Mansfield Center for Pacific Affairs with Funding from the Starr Foundation, 2000, p. 1.
  76. Ibid.
  77. Ibid, p. 2.
  78. Ibid, p. 3.
  79. John N. Moore, ‘The Rule of Law: An Overview’, Seminar on the Rule of Law, Moscow & Leningrad, 19-23 March 1990.
  80. Hager (n 76), p. 18.
  81. See generally Paul P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, Public Law, 1997, pp. 467-487.
  82. Francesco Viola, ‘The Rule of Law in Legal Pluralism’, in T. Gizbert-Studnicki and J. Stelmach (eds), Law and Legal Cultures in the 21st Century, Diversity and Unity, 23rd IVR World Congress, 2007, pp. 105-131.
  83. Amir N. Licht, Chanan Goldschmidt & Shalom Schwartz, ‘Culture Rules: The Foundations of the Rule ofLaw and Other Norms of Governance’, vol. 35, no. 4, Journal of Comparative Economics, 2007, pp. 659-668.
  84. Ibid.
  85. Ibid.
  86. Ibid.
  87. See generally, Yubaraj Sangroula, Criminal Justice System: Comparative of Study of the Criminal Justice of Nepal with Reference to China, Japan, India, UK and USA, Sahayatra Publication, Kathmandu, 2018.

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