And yes, lets not forget, The Law is above the King!!!

Referring to Social Contract Theory should give us the foundation for the discussion on Law vs. Politics. Jurisprudence itself stands on the core nexus of law and politics.

Here’s my simple understanding:

Adam and Eve bumped into each other at Eden Garden. Until then, both were sovereign, enjoying the Natural Law. Once they confronted the Poisonous Fruit Tree of Sin, they had to decide a set of norms among themselves, for who shall eat first. The sin fruit soon revealed its colors when Adam and Eve started claim authority over two tract of land bearing Fruit trees. A line had to be drawn to determine their rights and obligations (The Law) and sanctions and parameters (Politics), hence  law and politics were born.

Soon more sovereign individuals flocked in and conflict was destined to brew. A greater need of determination of rights, duties, obligations was needed and a social contract of mutual understanding was formed. Hence, individuals gave up their sovereignty for a greater good and agreed upon set of sanctions, enumeration of rights and duties and a sovereign institutional form (a society, a state, a nation) was agreed upon, all based on social contract theory. The law of the land was born.

The Politics (policy) came into play ONLY from the point when one sovereign Adam felt apprehended by another sovereign Eve in terms of ones right to pleasure and to limit the pain one would suffer; thereby agreeing upon norms for the Poisonous Tree (Commandments?). Until then neither Adam nor Eve had acquaintance with politics, policies or sanctions. Hence, Politics is a yolk of Law (the egg) where the fragile rights and duties (the shell) coexist with a carefully balanced greater sovereign with right to sanction (the white). A minor disbalance can crack the egg.

Advocates of Critical Legal Studies confine law within paradigm of politics. Without referring to Kelsen’s Legal Positivism, Hart’s Analytical Positivism, Legal Realism and the Postmodern Utopia, the discussion on law and politics will never be justified.

In re: Nepal’s politico-limbo:

Constitution is a politico-legal document, a political agreement to set the legal parameters for the nation. Nonetheless, it is dynamic (except in Nepal where, the vision-less leaders opt for a new constitution rather than amend the law of the land). Its a pity, our law of the land (your encompassed document!) is malfunctioning in one vital element of the state: the formation of an executive!!!

Or, is what we have is actually the law of the land or a mere political agreement dumped by the rebels to achieve their goals? Is the Interim (!) Constitution merely a political agreement between 8 political parties?

The greatest question is: Whether the interim constitution is derived from a popular will?  NO.

Hence, in absence of a popular will, a legislative (Not a Constitution Drafting People’s Assembly), an executive based on the legislative; the state is long over due of its legitimacy!

Since dissolution of parliament in 2002; Nepal has been functioning solely on the shoulders of one state organ, the Judiciary (which has never been tyrannical fortunately). The politics has failed miserably since 2002 (be it democrats, republics, monarchy, hardliners and opportunists).

What kept the sovereignty intact then? No doubt, one state pillar, the Judiciary. And yes, lets not forget, The Law is above the King!!!


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