Topics

Nature and Sources of Law

Classification of major legal systems of world
Characteristics of Nepalese Legal System

1.

Define law or What do you understand by law?

Definition of law
It is comparatively a more difficult task to define 'law' due to many reasons. The
term 'law' includes different things in different societies.
The term 'law' means a set of rules. The rules made by the authorities to reform
the conduct of a man.
Law in general sense has different connotations for different people like law as
a subject for students, a set of rules relating to business for business people, law
as a means to convict the criminals for policemen etc.
For the purpose of clarity and better treatment of the subject, we may discuss
the different definitions given by some scholars:
1.
Salmond defines law as the body of principles recognized and applied by
the state in the administration of justice. In other words, the law consists
of rules recognized and acted on by courts of justice.
2.
According to Austin, "law is the aggregate of rules set by men as
politically superior or sovereign to men as politically subject. In other
words, law is the command of the sovereign
3.
According to Duguits's definition of law, it is essentially and exclusively a
social fact. Law is also defined in relation with the society. The aim of the
social institutions is to safeguard and further it. The basis of the validity of
law is the popular acceptance and not the will of the sovereign.
4.
Roscoe Pound defines law as a social institution to satisfy social wants.
This approach is very valuable.
5.
In the same way Holmes and Frank, law is a body of principles slowly
evolved by the decision of the courts. Law is a process and not the
command of the state. For Justice Holmes, law is what the justice says in
his decision.
These all definitions present only a partial and not a complete picture of law. In
modern times, the concept of state and sovereignty has undergone considerable
change. Law is a social institution. In this picture of law, there are the following
elements:
1.
Law in the modern sense of the term presupposes state.
2.
The state makes or authorizes to make, recognizes or sanctions rules, which
are called law.
3.
For the rules to be effective there are sanctions behind them.
4.
These rules (called law) are made to serve some purpose. The purpose may be
a social purpose or it may be simply to serve some personal ends of a despot.

Therefore the term law can be defined as a set of principles, rules and customs as
well made or recognized and enforced by the supreme authority of the state. Law
guides the subject to do or not to do some acts. In case violation of law, the state
imposes a penalty.

2.

Discuss the salient features of law.

Salient Features of law
The definition of law must cover all aspects. Different laws for different kinds of
activities no uniform laws.
Equal treatment
Law treats all equally. This means the person on the same situation are treated
equally except in certain exceptional cases for instance child, women etc.
Sovereign authority
Law is enacted by the sovereign or supreme power of the state with full power
against the person or body of persons.
Sanction
Law has ultimate power behind it. The power of this kind is called sanction
due to which law is obeyed.
Justice
Law delivers justice. Law and justice are co-related. In absence of either other
ceases its existence.
Role of Law
Law secures justice and maintains peace and security in the society. It
regulates social behaviour
Dynamism
Law is a dynamic concept. It keeps on changing and adapts itself with the
changes in the society. The necessity of new laws arises along with the
process of development of a state. It is never static.

3.

Discuss nature of law in brief or what do you understand by nature of

law ?
The nature of law may be described as follows:
1.
The law regulates human behaviour. The law is created by human beings and
so it basically deals with the activities of the human beings. Under law, certain
acts are prohibitory, certain acts are mandatory and certain acts are
permissive. By adopting these means, the law regulates the behaviour of
human beings.
2.
The law covers wide areas of interest. It embraces political, economic and
social system of every civilized society. It does not concentrate on a specific
area only.
3.
Every law has a purpose. It basically aims to serve the purpose for which it is
enacted.

4.
5.
6.
7.
8.

4.

The rule of law prescribes that the law treat all the people equally. Nobody is
above law.
The law is one of the means to for the betterment of the society. It works for
the welfare of the society.
Law is enforceable. The law is enforced through the mechanism developed for
the purpose.
The objective of law is to bring peace in the society and create a harmonious
relation among the members of the society.
The ultimate aim of the law is to deliver justice to the people.

Discuss the sources of law or what are the sources of law?

After knowing what the law is, it is also desirable to know the sources of law. The
term sources of law has several meanings. The general meaning of the word
source is origin. There is a difference of opinion among the jurists about the origin
of law.
Austin says that law originates from the sovereign.
The theologians say that law originates from God.
In modern times most of the law is made by legislation.
A more logical classification of the sources can be made on the basis of their nature
whether they are legally binding or persuasive only.
1.

Legislation
The common meaning of legislation is the making of law. It may be defined
as the promulgation of legal rules by an authority, which has the power to do
so. Legislation as a source of law, means law making by a defined person or
body and not customary or conventional law or judicial decisions. In modern
times, the legislation has become the most important source f law.
Constitution is the supreme law of the land. All statutes or Acts like Contract
Act, Partnership Act, Companies Act, Ordinance, Rules made under the Act,
Executive orders, Directives etc fall under this category.

2.

Precedent
In oxford dictionary 'precedent' is defined as a previous instance or case which
is or may be taken as an example of rule for subsequent cases. In general use,
the term precedent means some set pattern guiding the future conduct. In the
judicial field, it means the guidance of authority of past decisions for future
cases. Only such decisions that lay down some new rule or principle are called
judicial precedents. It is also called judicial decision, case law or judge made
law. Thus the precedent is the decision made by the court over a case referred
to it by interpreting law and testing its validity and application according to
the time and situation. It is not limited to one case only but applicable to
others similar cases. It is regarded as same as law made by the legislature.
However it must not be contrary to the enacted law. It remains effective till the
legislature makes any law overriding it or the court lays down another
precedent replacing the former one.

3.

Agreements / Conventions
Agreements between the persons or treaty or conventions among the nations
shall also be taken as the source of law. Agreements mean the agreements
enforceable by law. That means contracts, treatises and conventions are all
created by the parties themselves and bind themselves by their terms and
conditions. The contractual terms in the contract, treatises and conventions
have the force of law. Specially, in the commercial sector it is very much
prevalent. Nature and Sources of Law

4.

Customary Law
In the early stages of the society, the customs are the most important and in
some case the sole source of law. But with the progress of the society, they
gradually diminish and legislation and judicial precedents become the main
sources.
Customs are derived from the behaviours and usages practiced since the very
long period. Certainty and continuity are very important for recognition of any
practice as custom. Any particular conduct imitated by a group of people for a
long time, becomes a custom. Custom is applied as same as the enacted law
and binding to the people following such practice. However it must not be
contrary to the existing law.
There are two types of custom:
a) Customs without sanctions
They are not obligatory.
b) Customs having sanctions
They are enforced by the state.

5.

Miscellaneous Sources

In addition to these, writings or opinions of various jurists, scholars, experts

etc. are also the sources of law because the law makers are bound to adopt
good legal principles as written and advocated by these scholars and jurists.

5.

What are the characteristics of Nepalese Legal System?

1.

Influence of religion
Nepalese legal system is very much influenced by religious myth and realities
of the Hindu civilization. Basic concept of Hindu theology commonly known
as Dharma is the science of law and justice and rational principles were the
rules responsible for promoting social, economic and moral values in the
universal order. Judicial system of the Hindu Kingdom of Nepal manifests
direct influence of the divine concept of religion.

2.

Western influence
Nepalese legal system is also influenced by foreign laws. The law based on
Dharma remained static and failed to represent the aspirations of the people.
The adoption of the foreign laws started from the third quarter of 18 th century
i.e. after the unification of the Kingdom of Nepal by Prithivi Narayan Shah.
Nepal borrowed the concept of legislating the law from codification system in
Europe. The concept of legislation and codification was introduced in Nepal.

3.

Lack of originality
Nepalese legal system is not the outcome of Nepalese indigenous values.
Going through the laws relating to governance, trade, commerce, industry,
property, money, banking and many others, it can be clearly understood that
these laws are borrowed laws. For the development of the legal system in
consonance with the socio-cultural changes, Nepalese legal system gradually
started to adopt the foreign laws though there were some difficulties in their
implementation.

4.

Influence of non-formal laws

Non-formal laws have played a major role to play in the Nepalese legal
system. Large number of cases which should fall under the court jurisdiction
have been resolved by non-formal forces as Mukhiya, Subba etc. Settlement
of disputes informally at the village and district level are very common. These
are all based on non-formal laws like custom, tradition and other kinds of
practices at the local level.

5.

Influence of common law system

Nepalese legal system gradually adopted common law system. In 1951 the
Westminster model of legal and constitutional rules were adopted to replace
the prevalent indigenous rules based on custom and law of Dhamashastra.

6.

Traditional and conventional

Nepalese legal system is also based on traditional as well as conventional
rules and values. Nepalese courts have been applying mainly the traditional
rules over hundred years old. They were made and developed in the context of
traditional values of a closed society where democratic values were absent.

7. Independence of judiciary
In the history of Nepal, the courts were independent. Both executive and
judicial functions were discharged by the executive officials. The judgments
were obligatory and punishable. But after 1951, doctrine of rule of law and the
independence of judiciary were introduced in Nepal. Now, the existing
constitution of Nepal has clearly established the independence of the judiciary
from the influence of the executive.

6.

8.

Complex and obsolete

Nepalese legal system is very complex and lacks simplicity. Some of the
procedural rules are found obsolete. Many rules relating to court procedure
require simplification. Repeating, red tapism, avoidance, lingering
postponement, lethargy etc are some of the common characteristics of
administration of justice system. Delay in justice delivery and wrong
judgments are the result of these practices.

9.

Lack of modernism
Nepalese legal system has failed to adopt modernism. Technological
advancement of the modern world has not been adopted for the efficient
management of the legal system of Nepal. It has been following traditional
style of work which has aggravated the problem of judicial slackness.
Backlogging of cases in the court is the direct result of this shortcoming.

Discuss the major legal systems of the world or What are the major
legal systems of the world?
If we look at all the major legal systems of the world, all the legal systems are
influenced by the common law system and continental legal system.
1.

Continental Legal System

a) Law of Romano Germanic Family is also called continental legal system
or civil legal system or code law system. It is the oldest legal system.
Though it was originated in Europe, it has been adopted in many other
non-European countries.
b) Under this system the laws are all written and codified.
c) Primary sources of law are legislation (constitution, treatises, code law,
parliamentary acts, delegated legislations, ordinance, administrative
directive) and secondary sources are customs and conventions, legal
writing of jurists and principles of laws

d)

Any nation which has adopted this legal system has divided the law into
two parts.
Public law
It establishes the relation between the state and individuals and also
interrelations between the government and the state. It also controls and
directs the activities of the administrative officers. It defines the limit of
the act, rules, policies, directions etc. The disputes under public law are
settled by the administrative courts.
Private law
It settles the disputes between the individuals and defines the relation
between them. Regular courts settle the disputes among the individuals
under the scope of private law.

2.

Common Law System

a) Common law system is also one of the major legal systems of the world.
This legal system has a very great influence over all the countries where
English language is in vogue and also the countries which were once the
colonies of Britain. It has greatly influenced the judicial system,
administrative structure and criminal and civil procedures of the courts.
b) This system has been developed out of the activities of the judges and
courts. The countries like America, Australia, India, Nepal, New
Zealand, and Africa are very much influenced by this legal system.
c)
Common law is basically created by the courts and judges. British
courts delivered justice on the basis of the customs, traditions,
conventions and common practices then prevailing and the principles
established were taken as laws. The courts therefore give judgments on
the basis of those established principles.
d) The laws under this system are all judge made laws on the basis of
judicial practices and actual practices of the courts.
e) It is based on equity.
f)
Substantive and procedural laws are based on principles laid down by
the judges, which are more dependable.
g) The primary sources of common law are judicial decisions, precedents,
statute laws or legislations and the secondary sources are customs,
reasons and juristic writings.
h) Equality before law, supremacy of law and the constitution as the result
of the ordinary law are very important in common law system.