As a faculty member teaching Jurisprudence at a government university in Biratnagar, I once delivered a lecture on Critical Legal Studies (CLS). To my surprise, midway through the session, several students stood up and remarked: “Sir, this is the best theory—especially when seen in Nepal’s context. It truly reflects our reality.” Their spontaneous agreement startled me, but upon reflection, I realized they had a point.
What is Critical Legal Studies (CLS)? Why does it resonate with Nepal’s reality?
The Critical Legal Studies movement, which emerged in the United States during the 1970s, fundamentally questions the neutrality, objectivity, and apolitical nature of law. Its scholars argue that law is not a fixed, impartial system but a reflection of existing social, economic, and political power structures. Law, they suggest, is shaped and manipulated to serve the interests of the powerful—whether they be the wealthy or the politically connected.
My students—most of whom are practicing lawyers and respected advocates in eastern Nepal—believe that CLS accurately captures Nepal’s socio-political landscape. According to them, the state machinery here has turned into a safe haven for the well-connected persons. Political appointments dominate public offices; merit, competence, or academic excellence often take a backseat.
Unfortunately, it’s rarely seen that a top university graduate or subject expert is being appointed to a significant government position. Instead, political cadres, often with unimpressive academic records, secure such roles with ease.
Understanding Critical Legal Studies
Theorists within the CLS movement assert that law is neither neutral nor objective. Rather, it reinforces the dominance of those already in power. Law, they argue, becomes a subtle instrument of social control, preserving the status quo and protecting entrenched interests.
Duncan Kennedy, a pioneer of CLS and Professor at Harvard Law School, argued that legal education itself perpetuates class divisions by reinforcing ruling ideologies. In his view, rights are frequently symbolic—creating an illusion of empowerment while maintaining existing hierarchies. True reform, he said, requires democratizing law and society.
Roberto Unger, also a Harvard professor, claimed that legal reasoning is inherently political, shaped by ongoing social and economic conflicts. Similarly, Mark Tushnet maintained that constitutional rights can act as tools of political control rather than liberation. Morton Horwitz emphasized that the law changes not because of timeless principles but because of shifts in political and economic power.
Nepali context
CLS theory fits Nepal’s reality uncomfortably well.
In Nepal, politics affects the legislature, executive, and judiciary. This isn’t just an opinion—it’s something many people notice. Where else does a former Member of Parliament (MP) so easily switch sides to join another part of the government? This kind of thing mostly happens exclusively in Nepal.
Appointments to crucial state bodies—whether constitutional commissions, regulatory authorities, or high bureaucratic positions—are often based on political loyalty rather than competence. The political background of these appointees is an open secret. Yet, we still expect them to deliver neutrality and fairness. Is this realistic?
According to CLS supporters, such a scenario is precisely what the theory predicts: law and governance structures in such systems serve to maintain the control of political elites. Given Nepal’s present condition, I find little ground to disagree. In Nepal, CLS is not just a theory—it seems to describe our daily reality.
As a law teacher, my duty is to inspire hope and integrity in my students, not despair. But it’s hard to stay hopeful when the system is so broken. Nepal needs real change—a move from politics based on favors to one based on merit.
Until such reforms materialize, Critical Legal Studies will remain painfully accurate in explaining Nepal’s legal and political machinery. The theory rings especially true here, where political favoritism is entrenched in almost every sphere of national life.
Jivesh Jha is a Part-time Faculty of Law at Manmohan Technical University.
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