GENERAL PRINCIPLES OF LAW

CLASS'S PRESENTATION COMPILE

B.A.LL.B 1ST YEAR

COMPILED BY:
SUJAN KAFLE

BLUE ZONE

2075 BATCH

Kathmandu School Of Law

Purbanchal University
 Table of Contents
CHAPTER 1 .............................................................................................................................. 1
DEFINITION OF LAW ........................................................................................................... 1
DEFINITION OF LAW GIVEN BY WESTERN JURISTS .................................................. 1
DIFFERENCE BETWEEN LAW AND MORALITY .......................................................... 4
DISTINCTION BETWEEN LAW AND MORALS .............................................................. 4
Morality: ................................................................................................................................. 7
Points to Remember .............................................................................................................. 8
CHAPTER-2 ...........................................................................................................11
TYPES OF LAW ...................................................................................................................... 11
Differences between substantive and procedural law............................................................ 11
Differences between Civil and Criminal law ........................................................................ 12
Differences between public and private law.......................................................................... 13
CHAPTER-3 ...........................................................................................................16
IMPORTANCE OF LAW ...................................................................................................... 16
A. Law as Means for Regulating Human Behavior. ........................................................... 16
B. Law as a Guide for Settlements of Disputes ..................................................................... 17
C. Law as a Means of Change in the Society ........................................................................ 19
D. Law as a safeguard for protecting interest of weaker section in the society .................... 23
E. Law as an Instrument Promoting Socio-Economic Justice in the Society ........................ 25
F. Law as a means of framing systematic structure of society- means of social engineering 26
CHAPTER-4 ........................................................................................................... 29
SOURCES OF LAW ........................................................................................................... 29
A. CUSTOM AS A SOURCE OF LAW ............................................................................ 29
B. PRECEDENT AS A SOURCE OF LAW ...................................................................... 31
C. LEGISLATION AS A SOURCE OF LAW ................................................................... 35
CHAPTER-5 ............................................................................................................................ 40
LAW MAKING PROCESS ................................................................................................... 40
FUNDAMENTAL EVOLUTION FEATURES OF ANCIENT LAWS (HENRY MAINE'S
CONCEPT)............................................................................................................................ 40
B. ROLE OF SOCIAL FACTORS IN EVOLUTION OF LAW (SAVIGNY'S CONCEPT)
44

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Ancient Law making process ............................................................................................. 47
LAW MAKING PROCESS DURING GOPAL ,MAHISPAL AND KIRANT DYNASTY
................................................................................................................................................... 47
Law making process during Shah and Rana Period .............................................................. 53
LAW MAKING PROCESS AS PER THE MULUKI AIN 1910 ......................................... 55
Comparison between Interim constitution of Nepal2063 and Nepal
constitution 2072 ................................................................................................................... 56
Colonization of South Asia and Imposition of Western law in South Asia .......................... 62
Imposition of colonial law in the south Asia especially in India, Pakistan and Bangladesh . 67
Shameful but true: Pakistan laws remain those of our British overlords ...................................... 68
Factors promoting legislative law making process ................................................................ 74
Factors: .......................................................................................................................................... 74
CHAPTER-6 ...........................................................................................................77
LEGAL THEORIES ............................................................................................................ 77
A. NATURAL SCHOOL OF THOUGHT...................................................77
POSITIVISM ................................................................................................................................ 91
I............................................................................................................ANALYTICAL SCHOOL
................................................................................................................................................... 91
DIFFERENCES BETWEEN AUSTIN AND BENTHAM .................................................. 97
II. HISTORICAL SCHOOL OF THOUGHTS ................................................................... 103
Reasons for the Origin of Historical School of Jurisprudence.......................................... 103
Jurists of Historical School of Jurisprudence ..................................................................... 104
Georg Friedrich Puchta ................................................................................................ 106
Sir Henry Maine ........................................................................................................... 106
Application of Historical School of law: ............................................................................. 111
III. SOCIOLOGICAL SCHOOL OF THOUGHTS ......................................................... 115
Essential features of sociologist school of jurisprudent ..................................................... 117
Application of Sociological School of Thoughts in Nepali Legal System: ......................... 128
IV. REALIST SCHOOL OF THOUGHT .......................................................................... 137
APPLICATION OF REALIST SCHOOL OF THOUGHTS ........................................... 139
V. ECONOMIC SCHOOL OF THOUGHTS ...................................................................... 144
APPLICATION OF ECONOMIC SCHOOL OF THOUGHTS ...................................... 148
CASES ..................................................................................................................................... 155
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 1. Reshma Thapa vs. Prime Minister and Office of the Secretariat of Council of Ministers
et al.......................................................................................................................................... 155
2. Achut Prasad kharel vs.council of minister .................................................................. 155
3. Sunil Babu panta vs. Government of Nepal, Office of the Prime Minister and Council of
Ministers and others............................................................................................................. 156
4. Somprasad Paneru and Others V Office of Prime Minister and Council of Ministers and
Others................................................................................................................................... 157
5. Mira Kumari Dhungana vs. Council of Ministers et al ................................................ 157
6. Vasundhara Thapa vs. His Majesty Government et al ................................................. 158
7. Jyoti Baniya vs. Government of Nepal ........................................................................ 159
8. Lal Bahadur Thapa V Ministry of Local Development and Others ................................ 159
9. Sanjaya kunar podar vs. Nepal government .................................................................... 160
10. Sapana Pradhan Malla vs. Government of Nepal .......................................................... 160
11. Raju Prasad chapagain vs. government of Nepal ......................................................... 160
References cases and laws for importance's of law ................................................. 164
To deliver justice ................................................................................................................... 164
For Development ................................................................................................................. 164
Political control.................................................................................................................... 165
For environmental protection .............................................................................................. 166
To maintain peace and order ............................................................................................... 166
Protection of weaker section................................................................................................ 167
Guarantee of rights and duties ............................................................................................. 168
For social control ................................................................................................................. 168

iv
 CHAPTER 1
DEFINITION OF LAW
DEFINITION OF LAW GIVEN BY WESTERN JURISTS

Plato (427-347 BC)

"Law is a finding of reality, human conscience, reasoning, which maximizes the happiness".

Rousseau (1712-1788)
"Law is the expression of the general will".

Demosthenes (384-322 BC)

"Every law is a gift of god and decision of sages".
Immanuel Kant (1724-1804)
"Law is transcendental".

John Salmond (1862-1924)

"Law is the body of principles recognized and applied by the state in the administration of justice".
 John Austin (1790-1859)
"Law is the command of sovereign".

Jeremy Bentham (1748-1832)

"Law is an art of legislation, which relies on the spirit of the greatest happiness of the largest
number of the people living in the society".

Hans Kelsen (1881-1973)

"Law is grundnorm which should be free from extraneous matters like ethics, politics, sociology,
history".

Friedrich Karl Von Savigny (1779-1861)

"Law is not made but it is found".

Roscoe Pound (1870-1964)

"Law is the means of social engineering through balancing the interest within little friction and
least waste".

Karl Marx (1818-1883)

"Law is the means of exploitation by superior to inferior".
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Leon Duguït (1859-1928)
"Law is the means of social solidarity".

Emile Durkheim (1858-1917)

"Law is the measuring rod of any society, which reproduces the principal forms of social
solidarity".

John Fletcher Moulton (1844-1921)

"Law is the crystallized commonsense of the community".

Prof. Olivercrona (1897-1980)

"Law is nothing but a set of social facts based on the application of organized force".

Willes Posits
"The body of rules of conduct that are obligatory in the sense that sanctions are normally imposed
if a rule is violated".

Ronald Dworkin (1931-2013)

"Law is an 'interpretative concept' that require judges to find a just solution".

William Blackstone (1723-1780)

"Law is a rule of civil conduct prescribed by the supreme power in a state, commanding what is
right and prohibiting what is wrong".

Wolfgang Friedmann (1907-1972)

"Law is not a brooding omnipresence in the sky, but a flexible instrument of social order,
dependent on the political values of the society which it purports to regulate".

Hugo Grotius (1583-1645)

"Law is a rule of moral action obliging to that which is right".

Oliver Holmes (1841-1935)

"Understand the law by viewing it from the external bad man's perspective, who cares only for
the material consequences which such knowledge enables him to predict".

School of thought
1) Natural School

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 According to natural school, law is the dictate of reason. Heraclitus is the founder of this
school.
“Law is right reason in agreement with nature.” -Cicero

2) Analytical School
This school defines law as the command of sovereign. John Austin is the father of
Analytical School.
“Law is the command of sovereign backed by sanction.”
-John Austin

3) Historical School
Historical school believes that law is not made but found in the form of custom and tradition
in the society. Savigny is known as the father of this school.
“Law is a product of general consciousness of people and the manifestation of their spirit”
-Savigny

4) Sociological school
Sociological school considers law as a social phenomenon to serve social interest. August
Compte is the father of this school.
“Law is a social institution to satisfy human wants”

-Ruscoe Pound

5) Realist School
This school believes law to be the preaching of the courts and precedents. It is closely
linked with sociological school.
“The prophecles of what courts will do infect and nothing more pretentious is what I mean
by law.”
-Justice Holmes

6) Socialist school
Socialist consider law as rules set by superior to dominate the inferiors. This school was
founded by Karl Marx
“Law is a means of exploitation”

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 DIFFERENCE BETWEEN LAW AND MORALITY
Introduction
In ancient times there was no distinction between law and moral. Later on some distinctions were
form between law and morals. The mimansa made a distinction between obligatory and
recommendatory rules. By the time the commentaries were written, the distinction was clearly
established in the theory also. The doctrine of “factum valet” was recognized. DOCTRINE- an
act which is in contravention of some moral injunction (order) should be considered valid if
accomplished in fact. The condition of Europe was also same. After the reformation in Europe, it
was contended that law and morals were distinct and law derived its authority not from the morals
but from the state. During 19th century, john Austin maintained that law had nothing to do with
morals and he defined law as the command of the sovereign. Law alone was the subject matter of
jurisprudence; he was supported by many jurists.

DISTINCTION BETWEEN LAW AND MORALS

Vingradoff – “law is clearly distinguishable from morality. The objective of law is the submission
of the individual to the will of the organized society, while the tendency of morality is to subject
the individual to the dictates of his conscience.”
ACCORDING TO PATON
LAW MORALITY

1) It is concerned with social relation of 1) It is more concentrated on individual rather

men with the society , rather than the than society.
individual
2) It conducts with standard (seldom 2) It considers motive important.
motive)

ACCORDING TO ARNDS
LAW MORALITY

 Man is consider as a person because he We have to do with determining the will

has a free will. towards the good.
Considers man only in as he lives in Guides to lead him even if he were alone
community with others
 Governs the will till it may be external Seek free self-determination towards the good
coercion (practice or action)
BASIC DIFFERENTIATION BETWEEN LAW AND MORALITY

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 BASIS LAW MORALITY
1) SOURCES  Legislation  Tradition
 Precedent  Values
 Customs  culture
2) NATURE It is universal in nature It is not universal in nature
3) REMEDY It imposes sanction to the It is excusable
criminal
4) CLAIM It is claimed in the court No procedure while claiming

5) PUNISHMENT If a person disobeys the If a person fails and disobeys

command of law or violates morality, then he is not liable
the laws, he is liable to be to be punished.
punished by the state

Therefore there is a huge differentiate between law and morality. Sometimes legally wrong maybe
morally right and moral wrong may be legally right. There are many things which are illegal in the
eyes of the state but are acceptable to morality. Another point of distraction is that laws are certain
and universal and they are universally applicable to all citizens whereas the morality are quite
uncertain.
Law is an enactment made by the state. It is backed by physical coercion. Its breach is punishable
by the courts. It represents the will of the state and realizes its purpose.
Laws reflect the political, social and economic relationships in the society. It determines rights and
duties of the citizens towards one another and towards the state.

It is through law that the government fulfils its promises to the people. It reflects the sociological
need of society.

Law and morality are intimately related to each other. Laws are generally based on the moral
principles of society. Both regulate the conduct of the individual in society.

They influence each other to a great extent. Laws, to be effective, must represent the moral ideas
of the people. But good laws sometimes serve to rouse the moral conscience of the people and
create and maintain such conditions as may encourage the growth of morality.

Laws regarding prohibition and spread of primary education are examples of this nature. Morality
cannot, as a matter of fact, be divorced from politics. The ultimate end of a state is the promotion
of general welfare and moral perfection of man.

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It is the duty of the state to formulate such laws as will elevate the moral standard of the people.
The laws of a state thus conform to the prevailing standard of morality. Earlier writers on Political
Science never made any distinction between law and morality.

Plato's Republic is as good a treatise on politics as on ethics. In ancient India, the term Dharma
connoted both law and morality. Law, it is pointed out, is not merely the command of the
sovereign, it represents the idea of right or wrong based on the prevalent morality of the people.

Moreover, obedience to law depends upon the active support of the moral sentiments of the people.
Laws which are not supported by the moral conscience of the people are liable to become dead
letters.

For example laws regarding Prohibition in India have not succeeded on account of the fact that
full moral conscience of the people has not been aroused in favor of such laws.

As Green put it, "In attempting to enforce an unpopular law, a government may be doing more
harm than good by creating and spreading the habit of disobedience to law. The total cost of such
an attempt may well be greater than the social gain."

Although law and morality arc interdependent yet they differ from each other in their content,
definiteness and sanction.

Some points of distinction between law and morality may be brought out as follows:

Law:

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1. Law regulates and controls the external human conduct. It is not concerned with inner motives.
A person may be having an evil intention in his or her mind but law does not care for it.

Law will move into action only when this evil intention is translated into action and some harm is
actually done to another person.

2. Law is universal in a particular society. All the individuals are equally subjected to it. It does
not change from man to man.

3. Political laws are precise and definite as there is a regular organ in every state for the formulation
of laws.

4. Law is framed and enforced by a determinate political authority. It enjoys the sanction of the
state. Disobedience of law is generally followed by physical punishment.

The fear of punishment acts as a deterrent to the breach of political law.

5. Law falls within the purview of a subject known as Jurisprudence.

Morality:

1. Morality regulates and controls both the inner motives and the external actions. It is concerned
with the whole life of man.

The province of law is thus limited as compared with that of morality because law is simply
concerned with external actions and does not take into its fold the inner motives.

Morality condemns a person if he or she has some evil intentions but laws are not applicable unless
these intentions are manifested externally.

2. Morality is variable. It changes from man to man and from age to age. Every man has his own
moral principles.

3. Moral laws lack precision and definiteness as there is no authority to make and enforce them.
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 4. Morality is neither framed nor enforced by any political authority. It does not enjoy the support
of the state. Breach of moral principles is not accompanied by any physical punishment.

The only check against the breach of morality is social condemnation or individual conscience.
'Moral actions are a matter of choice of inner conscience of the individual, laws are a matter of
compulsion'.

5. Morality is studied under a separate branch of knowledge known as Ethics.

We may conclude the discussion in the words of Gilchrist, "The individual moral life manifests
itself in manifold ways. The state is the supreme condition of the individual moral life, for without
the state no moral life is possible.

The state, therefore, regulates other organizations in the common interest. The state, however, has
a direct function in relation to morality."

Points to Remember

Laws may be defined as external rules of human conduct backed by the sovereign political
authority. Law and morality are intimately related to each other.

Laws are generally based on the moral principles of a particular society. Some points of distinction
may be brought out as follows:

(a) Laws regulate external human conduct whereas morality mainly regulates internal conduct.
(b) Laws are universal; morality is variable.
(c) Laws are definite and precise while morality is variable.
(d) Laws are upheld by the coercive power of the state; morality simply enjoys the support of
public opinion or individual conscience.
(e) Laws are studied under Jurisprudence but morality is studied under Ethics

Eastern Philosopher’s Definition of Law

Eastern Philosophy:

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 The term Easter Philosophy also known as Asian philosophy was originated in East and
South Asia Including Chinese philosophy, Japanese philosophy, and Korean philosophy which are
dominated in East Asia and Vietnam and Indian philosophy (including Buddhist philosophy) which are
dominated in south Asia and south East Asia, Tibet and Mongolia. The most important characteristic of
the eastern world view is that all things are seen as independent and inseparable parts of a cosmic
universe (different approaches to the same reality).
Eastern Philosopher's Approach to Law:
Kautilya's account on law:
It is perhaps Kautilya’s Arthasastra which stands out to be thoroughly scientific and most
authoritative interpretations of these ancient studies.
According to him, ‘the ultimate source of all law is dharma’. He appealed in the name of ‘dharma’
to the sense of honour and duty and to human dignity, to moral responsibility and to enlightened
patriotism.
Kautilya did not view law to be an expression of the free will of the people. Thus sovereignty –
the authority to make laws, did not vest with citizens. Laws were derived from four sources –
dharma (scared law), vyavhara (evidence), charita (history and custom), and rajasasana (edicts of
the King). Kautilya prescribe that any matter of dispute shall be judged according to four bases of
justice. These in order of increasing importance are:

‘Dharma’, which is based on truth

‘Evidence’, which is based on witnesses

‘Custom’, i.e. tradition accepted by the people

‘Royal Edicts’, i.e. law as promulgated.

In case of conflict amongst the various laws, dharma was supreme.

1. Vedas:
The moral is that human law is as inviolate as the cosmic law.(The fundamental philosophy
of the Veda is that the Veda is the external world of the almighty, and isn’t a human artifice)
2. Brihadaranyaka Upanishad account of Law:
Nothing is higher than Dharma the week over comes the stronger by dharma as over a king.
A truly that dharma is the truth therefore, when a man speaks the truth, they say, "he speaks
the Dharma” and if he speaks the dharma they say "He speaks the truth!" for both are one.

3. Mahabharata in accounts of Law:

i. Knowledge: Which makes the mind Stable
ii. Patience: Which make feeling Stable

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iii. Love: Which make heart stable
iv. Sacrifice: which makes body Stable by controlling body action
v. Justice: which makes souls Stable

(When feelings Mind, heart, body and soul remain in peace and become stable then a person is full
of compassion and this is called LAW)
4. Ramayana account on Law:
What we sow is what we sow is what we reap and this happens on truth so karma is always judge
by truth ,the goodness and punishments are based on the actions and result is obtained according
to it.
5. Buddhism in Account of Law:

Karma is Law in itself, which operates in its own field without the intervention of any external
independent ruling Agency.
6. Narada in account of law:

Nârada-smriti must be considered as an independent, and therefore especially valuable, exposition of

the whole system of civil and criminal law, as taught in the law schools of the period. It is in fact the
only Smriti, completely preserved. 1
in MSS( Manu Smiritis)., in which law, properly so-called, is treated by itself, without any reference to
rules of penance, diet, and other religious subjects; and it throws a new and an important light on the
political and social institutions of ancient India at the time of its composition. Several of the doctrines
propounded by Nârada arc decidedly opposed to, and cannot be viewed in the light of developments
from, the teaching of Manu. Thus e.g. Nârada advocates the practice of Niyoga, or appointment of a
widow to raise offspring to her deceased husband; he declares gambling to be a lawful amusement, when
carried on in public gaming-houses; he allows the remarriage of widows; he virtually abrogates the right
of primogeniture by declaring that even the youngest son may undertake the management of the family
property, if specially qualified for the task; he ordains that, in a partition of the family property, the
father may reserve two shares for himself, and that, in the case of a partition after his death, the mother
shall divide equally with the sons, and an unmarried sister take the same share as a younger son; he lays
down a different gradation of fines from those laid down by Manu, &c. 2

1
http://www.sacred-texts.com/hin/sbe33/sbe3302.htm on 25th Sept. 2018
2
Bühler, S. B. E., vol. xxv, p. cvii; West and Bühler, p. 48; Max Müller, History of Ancient Sanskrit Literature, p. 245;
Jolly, Tagore Law Lectures, p. 36; Hörnle, Proceedings of the Seventh Congress of Orientalists, p. 134.

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 CHAPTER-2
TYPES OF LAW
Differences between substantive and procedural law
Substantive Law: In general sense, substantive law is that area of law which focuses on creating,
defining and regulating people's rights and responsibilities as they are owned to each other and to
the state, which are not matters purely of practice and procedures. It has its origin in Middle
English between 1350-1400(1). The body of substantive law includes things like defining crimes
and prescribing appropriate punishments or providing sentencing guideline, which can be used
when determining how someone should be sentenced, along with discussions about legal
relationship between people as well as entities.
According to Salmond, "substantive law is concerned with ends which the administrations of
justice seeks to achieve.''(2)
Example: national civil code 2074, national criminal code 2074, Nepalese contract act 2050, etc.

Procedural Law: Procedural law prescribes the procedures and methods for enforcing rights and
duties and for obtaining legal remedy through a law suit. It ascertains the way of implementation
of substantive law and process of administration law and process of administration of justice
through civil and criminal proceedings. It deals with the matter such as jurisdiction of the courts,
the way in which the hearing or the trial is to be conducted, judgment of the courts and the
execution of decrees, order and sentences passed by the court(3).
According to Salmond, '' law of procedure is that branch of law which governs the process of
litigation"(4).
Examples: national civil procedural code 2074, national criminal procedural code 2074, Right to
constitutional remedy in Article 46 of constitution of Nepal 2072(5), etc.

Here, the substantive law and the procedural law can be distinguished from the substantive law on
the following grounds;

Ground of
differences Substantive law Procedural law

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 Definition It is the statutory or written law that It is the law that comprises the rule by
governs right and obligations of those which a court hears and determines
who are subject to it. what happens in civil or criminal
proceedings.
Ground of Substantive law relates the matter Procedural law regulates the affairs
(6)
applications outside the courts . inside the courts (7).
Ends of each Substantive law is concerned with Procedural law deals with the means
aspects ends which the administration of by which ends of substantive law is
justice seeks to achieve. achieved.
Functions Substantive law determines the Procedural law regulates the conduct
conduct and relations of the parties and relations of the court and litigants
inter se in respect of the matter in respect of the litigations (9).
(8)
litigated .
Nature Substantive law defines a right. Procedural law determines the
remedies.
Examples National civil code 2074, National National civil procedural code 2074,
code 2074, Court fee code, etc. National criminal code 2074, etc.

Note: The restriction must be reasonable from the substantive as well as procedural standpoint.
(N.B. Khare vs. state of Punjab, AIR 1960 SC 211)

Differences between Civil and Criminal law

Criminal law: Criminal law is body of law that relates to crime. Criminal law defines offences
and prescribes punishments. Not only it prevents crimes but also punishes the offenders. Criminal
law is necessary for the maintenance of law, order and maintain peace within the state. (In criminal
case, it is the state which initiates proceeding against the wrong doers.)
Civil law: The system of law concerned with private relations between members of a community
rather than criminal, military, or religious affairs.
Civil Law Criminal Law

1. Civil law deals with behavior that constitutes Criminal law deals with behavior that can be
an injury to an individual or other private constructed as an offence against the public,
party. society, or the state.

2. The purpose of civil law is to deal with the The purpose of criminal law is to maintain the
dispute between individual, organizations or stability of the state and society by punishing
between the two, in which compensation is offenders and deterring them and others from
awarded to the victim. offending.

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 3. Case is filed by private party. Case is filed by the government.

4. Compensation (financial) for injuries or A guilty defendant is subject to custodial

damages or injunction is given. And the (imprisonment) or non-custodial punishment.
outcome is remedial. And the outcome is punishment.

5. Civil law cases includes family disputes Criminal law cases includes burglary, theft
personal injury cases, contract issue. arson, criminal damage, murder, fraud, drug
dealing etc.

6. It deals with any harm or violation to It deals with the acts which law defines as
individual rights. offences.

Differences between public and private law

Public law refers to the law that deals with the issues that concern the general public or state. It
relates to individuals’ obligations to the state and the society as a whole. Usually, this part of the
law covers up administrative law, constitutional law, criminal laws and other broader areas of law.
Here, the state is not only an arbitrator/mediator, but also one of the concerned parties.

Private law deals with the issues that cover up the matters related to families, business and small
groups and exists to assist citizens in dispute that involve private matters. It thus governs the
relation of citizens among themselves. Contract law, family law, property law are some of the
specific law areas that comprise this part of the law.
The government does not prosecute in violation of private law rather it imparts justice referring to
a case filed by the affected party.

PUBLIC INTERNATIONAL AND PRIVATE INTERNATIONAL LAW:

Public international law:

 It is the body of legal rules applied between sovereign states and other international
personalities; independent organizations, companies.

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  The rules are primarily the outcome of international customs and treaties.( Example: law
of the sea, human rights conventions, international humanitarian law)
 It is enforced due to the international pressure and fear of losing diplomatic relations and
facing sanctions.
 It is equally applicable to all the states involved.
 There is no predetermined court in it.

Private international law:

 It is also known as conflict of law.(Caused due to the variation in laws of different
countries)
 It is the law that regulates the relationship between private parties (either individual or
entity) of two states that might be natural or legal.
 The rules are framed by the state legislature and referred by international personality..
 It is enforced by concerned state executive and the case can be filed in the state court. .
 The courts are pre-determined in the agreement held between the two parties. .
 Private laws differ from state to state.

National Public and Private Laws:

1. National Public Law: includes criminal laws that deals with anti- social/anti-state
criminal offences. Some of the offences that may sound like private ones will actually be
part of the public law, e.g. Rape cases, Agony etc.

2. National Private Law: includes relationships between individuals such as the law of
contracts or torts, and the law of obligations.

Differences between common and statutory law

Common law:
Common law which is also known as judicial precedent or judge made law or case law, is
that law body of law derived from judicial decision of courts and similar tribunals.
Common law consists of those principle, usages and rules of action applicable to the
government and security of persons and of property which don not rest for their authority upon
any express or positive declaration of the will of the legislature. The origin of the common law
is linked to royal power.
Statutory law:
Statutory law is the term used to define written laws, usually enacted by legislative body.
Statutory laws vary from regulatory or administrative laws than are passed by executive agencies
and common law or the law created by prior court decision. A bill is proposed in the legislature
and voted upon.
How Common law differs from statutory law?

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The common law differs from statutory law because it is mainly based on precedent. Statutory law
is a more formal body of the legal system that consists of written legislation. The legislation will
mainly be based on rules and regulation either mandating or prohibiting certain behaviors of
general public. Common law on other hand will allow judges to decide case based on the ruling of
prior cases with similar circumstances.
Other differentiation between common law and statutory law is the way in which the law are
created. When the statutory law is broken by a citizen the government will have to predetermine
punishment that is in proportion to the nature of the crime.

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 CHAPTER-3
IMPORTANCE OF LAW
A. Law as Means for Regulating Human Behavior.
Law is a system of rules that is created and enforced through social or governmental institution to
regulate human behavior. It shapes politics, economics, history and society in various ways and
serves as a mediator of relations between people. Law is the cultural force which has that important
social function of imposing, conducting and controlling patterns of human behavior. The sociology
of law is aimed at studying human behavior in society. According to our research we have found
that law is a means to regulate human behavior. It keeps people in discipline. But one thing I would
like to add is that the first and foremost thing that regulate our day to day behavior is our moral
values and we also know that morality is also one of the source of laws. The laws are used as
instrument to keep people away from evil or damaging human behavior. No matters what kind of
offensive activities we do, whether it be criminal or civil one, we get punishment like fine,
compensation, imprisonment, work release etc. on the basis of gravity of our crime. These sorts of
punishment are just the tools to regulate human behaviors. Members of the society may have
different social values, various behaviors and interests. It is important to control those behaviors
and to inculcate socially acceptable social norms among the members of the society. There are
informal and formal social controls. Law is one of the forms of formal social controls. As to Roscoe
Pound, law is a highly specialized form of social control in developed politically organized society.
Lawrence M. Freedman explains the following two ways in which law plays important role in
social control: first, law clearly specifies rules and norms that are essential for the society and
punishes deviant behavior. “Secondly, the legal system carries out many rules of social control.
Police arrest burglars, prosecutors prosecute them, courts sentence them, prison guards watch
them, and parole broads release them. This provision of parole falls under reformative theory
where the offenders are given chance to reform themselves again as the responsible citizen.

According to Dias “law consists largely of ought normative prepositions prescribing how people
ought to behave. Thee ought of laws are variously dictated by social, moral, economic, political
and other purposes.”

Importance of Law as Controlling Human Behavior: the First and Basic Importance from the Time
of Origin of law and its Existence Till Now. Darwin states that the animals evolved through
survival of the fittest. Humans came up to this condition through evolution. During our survival
we developed some traits that helped in survival. After advancement of agriculture, storage and
living together these traits led humans against each other to be more powerful and prosperous
among themselves. Living together involved setting up rules and institutions that regulated this
living together. Moral or religious orders in many aspects tend to function very much the same
way as legal orders. They all function to suppress evil and bring about socially desired behavior
through the punishment and reward.

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Hans Keelson: “Function of every social order is to bring about certain mutual behavior of
individuals; to induce them to certain positive or negative behavior, to certain action or abstention
from action.”
Thomas Hobbes: The condition of people at state of nature is “war of all against all”. So, all
humans are bad and they come in contract to form society state and law to save them from each
other or to regulate their own course of conduct.
John Locke: In Locke’s state of nature people are good with peace and harmony but in constant
threat. Such good people formed contract to regulate course of conduct of people.
Dharma, Hindu law, is also regulation of behavior. For example, in Ramayana a peasant asks the
King to do what dharma morally requires of him, the King agrees and does so even though his
compliance with the law of dharma costs him dearly. Therefore the first purpose of law was to
prevent humans from harming each other and breaching social norms. The law regulated humans
by making mandatory to manifest socially acceptable behavior. All other importance precedes
importance of law as regulating human behavior.

B. Law as a Guide for Settlements of Disputes

Dispute is a disagreement between any two parties; whether individual or groups. Dispute
generally occurs when people do not follow the same agenda, concepts, plans or beliefs.
Incompatible interests, differing principles are the major source of dispute. One of the major
functions of law is to settle the disputes between people. When people live together, disputes are
bound to happen. Disputes may arise in different issues. However, the most common forms of
dispute concern money, property, employment, accidents, marriage-breakups and family
separation.
Law is a common guideline for the society. It is under the guidance of law, we perform various
activities in a state. Conflicts occur in our day to life. If there was no law, these conflicts would
lead to many causalities and damages of human lives, properties and create a situation of havoc in
the society.
The idea of dispute settlement is very old. In our country, the notion of ‘panchayat’ or ‘a village
council’ was to run the village and settle the various conflicts that occurred in the village.
Influential men, acknowledged by the community were the head of panchayat. Various conflicts
that took place in the village were put forward in the panchayat. The ‘panchayat’ head would then
pass their judgment in favor of either parties depending upon the situation.
As time progressed, the system of dispute settlement has been recognized by the state under the
judiciary. Various acts, statues, principles and law are made keeping in mind about the conflicts
that may arise. The guidance of law is very necessary in these situations because no-one can
separate conflict from human civilization. Conflict will always remain in our society, our main
focus should be to guide it towards management with least constrain possible.

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 Types of disputes

Disputes between neighbors. Disputes between neighbors occur regularly, in fact they are
one of the most common types of civil disputes. Neighbors can disagree about a number of issues,
including property boundaries, parking, responsibility for building or maintaining fencing,
overhanging trees, invasive vegetation, unsecured leaf litter or rubbish, barking or dangerous dogs,
loud noises or offensive smells. The basis of these complaints are often minor, however it is
important that disputes between neighbors are resolved quickly and amicably. Unresolved disputes
between neighbors have the potential to deteriorate or escalate, making life unbearable for both
parties.

Disputes between families. The most common family disputes focus on issues like marital
separation, divorce and custody, maintenance and access to children. These disputes are dealt with
by family law, which is a specialist area of civil law. However, families may also dispute other
issues, such as the ownership of property or the content of wills.

Disputes between employees and employers. These disputes may relate to infringements
of an employee’s rights in the workplace, such as salary, safety, working conditions, equitable
treatment, racial discrimination or sexual harassment.

Disputes about tenancy. Another common type of dispute that relates to the leasing or rental
of property. Most tenancy disputes are about occupancy, evictions, recovery of unpaid rents or
bonds, or costs for damage to property.

Disputes about accidents. These disputes focus on events such as motor vehicle accidents,
workplace injuries and other mishaps. The parties concerned may be in dispute about the causes
of the accident, who was negligent or at fault and who is liable to pay repairs, expenses or
compensation.

Different methods of settling disputes:

Dispute resolution is the process of resolving the cause of conflict between parties. The term
dispute resolution may also be used interchangeably with conflict resolution, where conflict styles
can be used for different scenarios.
The different methods of dispute resolution include:
1. Lawsuits: The proceeding by a party or parties against another in the civil court of law.
2. Arbitration: It is the way to resolve disputes outside the courts.
3. Collaborative law: Also known as collaborative practice, divorce or family law. It is a
legal process enabling couples who have decided to separate or end their marriage to work
with their lawyers and on occasion other family professionals in order to avoid the
uncertainty of court litigation.

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 4. Mediation: It is a process in which the third party assists disputing parties in resolving
conflict through the use of specialized communication and negotiation techniques.
5. Conciliation: It is the process whereby the parties to a dispute use a peacemaker, who
meets with the parties both separately and together in an attempt to resolve their
differences.
6. Negotiation: It is often conducted by putting forward a position and making concessions
to achieve an agreement.
7. Facilitation: It is the process in which the facilitator engages in any activity that makes a
social process easy or easier.

These disputes require the intervention from the legal field. The non-involvement of legal entities
in these situation increases the risk of violation of various rights of the people. Not every dispute
ends in a lawsuit, however even the alternate methods of dispute resolution are guided with the
principle of lowering the damages to respective parties and provide justice.

C. Law as a Means of Change in the Society

According to Britannica Encyclopedia, "Social change is the alteration of mechanisms within the
social structure, characterized by changes in cultural symbols, rules of behavior, social
organizations, or value systems."3 Regarding the meaning of social change, there are various
definitions that are given by many scholars. Some of them are:
1. Lund berg: "Social change is the modification in established patterns of inert-human
relationships and standards of conduct."4
2. Judson R. Landis: "Social change refers to change in the structure and functioning of the
social relationships of society."5
3. Koenig: "Social change refers to the modifications which occur in the life patterns of
people."6

The concept of social change implies measurement of some of the characteristics of a group of
individuals. While the term is usually applied to changes that are beneficial to society, it may also
result in negative side-effects and consequences that undermine or eliminate existing ways of life
that are considered positive.7

3
https://www.britannica.com
4
https://poseidon01.ssrn.com

5
http://www.sociologydiscussion.com
6
Ibid 3
7
Ibid 2

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Law as the means of the change in the society:
Change is an everlasting phenomenon. To prove this, we can show the example of the evolution
of the earth and the evolution of the animals on earth. Undergoing through various series of
changes finally the evolution of the animals on the earth was achieved from the unicellular
coacervates to multi cellular animals. The history of humankind reveals that human wisdom has
devised different methods and means to meet the structural changes in the social system which
take place with the advancement of knowledge, culture and civilization. Law has always been
considered as one of the important instruments of affecting social change. In the modern era, there
has been widespread concern of law as a tool for bringing about homogeneity in the heterogeneous
population having socio-cultural diversities.8
Inequalities, discriminations etc. that are prevailing in the society are controlled by the law. The
law or the constitution of the country imparts the rules and regulations in the society and the
country. Law brings social change through the instrumentality of legislation, execution of
executive and interpretation of the judiciary.
Talking about the law and society, they are interrelated with one another as the law are made as
per the situation of the society, different circumstances in society and moreover the demand of the
time.
The law is important for a society for it serves as a norm of conduct for citizens. It was also made
to provide for proper guidelines and order upon the behavior for all citizens and to sustain the
equity on the three branches of the government. It keeps the society running. Without law there
would be chaos and it would be survival of the fittest and everyman for himself. Not an ideal
lifestyle for most part.
Legal system reflects all the energy of life within in any society. Law has the complex vitality of
a living organism. We can say that law is a social science characterized by movement and
adaptation. Rules are neither created nor applied in a vacuum, on the other hand they created and
used time and again for a purpose. Rules are intended to move us in a certain direction that we
assume is good, or prohibit movement in direction that we believe is bad.
Some of the importance of law in society is as follows:
1. Law plays an important indirect role in regard to social change by shaping a direct impact
on society. For example: A law setting up a compulsory educational system because of
which the government is trying to provide free education to the students till secondary level
as per the Article 31 (1) and (2) of the Constitution of Nepal, 2072.
2. On the other hand, law interacts in many cases indirectly with basic social institutions in a
manner constituting a direct relationship between law and social change. For example, a
law designed to prohibit polygamy.9 as per the Section 175 (1) of the Muluki Criminal
Code, 2074

8
Ibid 2
9
https://legaldesire.com

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 3. The abolition of malpractices likes untouchability as per the Article 24 of the Constitution
of Nepal, 2072 and according to the Section 160 (1) and (2) of the Muluki Criminal
Code, 2074, child marriage as per the Article 39 (5) of the Constitution of Nepal, 2072
and Section 173 of Muluki Criminal Code, 2074; sati system which was abolished by
Chandra Shumsher on 25th Asad 1977 i.e. on 8th July, 1920, dowry as per the Section
174 of the Muluki Criminal Code, 2074 etc are typical illustrations of social change being
brought about in the country through laws.
4. Law certainly has acted as a catalyst in the process of social transformation of people
wherein the dilution of caste inequalities Article 18 and 24 of the Constitution of Nepal,
2072, protective measures for the weak and vulnerable sections, providing for the dignified
existence of those living under unwholesome conditions etc as per the Article 18 (3) of the
Constitution of Nepal, 2072. Are the illustrious examples in this regard.
5. Here, we know that in the Muluki Ain 1854 there was a strong castism. Then the Muluki
Ain 2020 penalized castism. Here, we can say that the existing social practices were
codified in law in the prior and the law made in the latter penalized the same code, which
brought the social change.
6. Law addresses the needs of the society by respecting it and it also reflects the current status
of the society. For Example; allowing male to file case for divorce directly to the Supreme
Court as per the Section 94 of the Muluki Civil Code, 2074.
7. Law was the only tool that abolished the Chhaupadi Pratha that was prevalent in the far
and mid- western areas of Nepal as per the decision made by the Supreme Court on 2005.
8. As per the National Code, 2020 the life imprisonment was sentenced for 20 years but as
per the Section 43 of the Muluki Criminal Code, 2074 25 years of the imprisonment is
sentenced. Moreover, as per the Muluki Criminal Code, Section 41 there is the provision
of the lifelong imprisonment.
9. There is also the provision of the alternative sentences as per the Section 40 of the Muluki
Criminal Code, 2074. etc.

Case Study:
Writ no. 8392 of the year 2050 B.S.
Petitioner: Advocate Meera Kumari Dhungana
Versus
Respondent: HMG Ministry of LAW, Justice and Parliamentary Affairs and Others
Case: Daughter's Property Right
Fact of the case:
 Article 11(2) of the constitution of the kingdom of Nepal, 2047 guarantees that no
discriminatory treatment shall be made against any citizen in the application of general
laws on ground, inter alias of sex.

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  However there reminded a provision in the national code that treated son and daughter
differently in the context of obtaining parental property as legal heirs.
 No. 16 of the chapter on partition of property of the national code 2020 provides that an
unmarried daughter having attained the age of 35 years is entitled to obtain property under
partition as par with the son, and if she weds after obtaining the partition share, the property
obtained by her, shall after deducting her marriage expenditure pursuant to law should be
returned.

Decision of the case:

"Making sudden changes in traditional social practices in matters of social norms per used by the
society since a long time ago, may create problems in connection to adjustment in the society.
And, it may cause such a situation beyond perception. Therefore, before reaching a decision all of
a sudden, a just provision should be made by holding wide and extensive discussions and
deliberations taking into account the constitutional provision vis-à-vis equality. As the family law
relating to property is to be wholly considered, it is hereby issued this directive order that HMG
introduce an appropriate Bill to Parliament within 1 year of receipt of this order, by making
necessary consultations with the recognized women's organizations, sociologists, the concerned
social organizations and the lawyers as well and by studying and considering the legal provisions
in this regard on other countries."10

Here, the case thus paved a way to the 11th amendment of Muluki Ain (National Code) and also a
separate Art. Regarding women i.e. Art. 20, Right of Women in the Interim Constitution of Nepal,
2063. As a result the case is of immense importance in Nepalese society as it has ignited a spark
of equality of men and women in an orthodox society like ours.11

Here, the decision made by the court was a landmark decision where, judge ordered a decision to
conduct an extensive research in regard of this topic both within and outside Nepal and to introduce
an appropriate bill to parliament within one year has clearly reflected the importance of research
and public opinion in law making. Here the relationship between the law and the change in society
has been well identified. It shows us that the law is the milestone to change the societal norms and
values into legal frame which ultimately creates the situation where people have to adapt with a
different circumstance.

10
https://poseidon01.ssrn.com
11
https://poseidon01.ssrn.com

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 D. Law as a safeguard for protecting interest of weaker section in the society
Nepal is popularly known for its unity in diversity. But social inequality gave birth to weaker
section in our society. Weaker Sections includes Women, Dalits, Madhesi, Janajati, Children,
Economically backward people and people from backward class.
Law is applied generally for all people, class without discrimination except in cases of special law.
The law can be trusted by the citizens of the state as a reliable and fair means of protection of
rights and obligations.
There are different fundamental rights recognized by the Supreme Court applicable equally for all
people without any discrimination. These rights are guaranteed by the constitution of our country
and it is specific and obligatory.
The constitution of Nepal (2072) is the fundamental document of the Nepal where the equality is
a basic principle. Every citizen is to be treated equally in the eyes of law. The main reason to
include these kinds of fundamental rights is make sure not any of the right is being violated by the
state.
The different rights provided by the constitution are:
Right against untouchability and discrimination: No one shall be treated with any kind of
discrimination. All kinds of discrimination are punishable by law. No person shall be discriminated
for their caste, ethnicity, community, occupation or economic background.
Right to freedom: It has played a vital role in protecting interest of people in the society as it
prevails to freedom of opinions and expression.
Rights of children: No child shall be a subject to child marriage, illegal trafficking and
kidnapping.
We have human rights provided so that all are free and equal. The law provided to everyone is
same. It treats everyone fairly.

And many other rights which prevails the protection of weaker section in the society such as:
Right to equality: Every citizen is treated equally facing no discrimination in the ground of origin,
religion, race, caste, tribe, sex, disability, health condition, language, geographical region.
There is special provision and reservations made by the law for the protection, empowerment or
development of citizens including socially or culturally backward women, Dalit, Indigenous
people, Madhesi, Tharu, Muslim, labors, senior citizens and many other oppressed class and
backward communities.
Right of women: The constitution not only grants equality but also empowers women to education
and politics. There is special provision by law for the protection, empowerment or advancement
of the women lagging behind socially and culturally.

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Rights of senior citizens: Senior citizens have right to special protection and social security from
the state.
Right to social justice: The indigent citizens and citizens of the communities on the verge of
extinction have right to get special opportunities and benefits in education, health, housing,
employment, food and social security for their protection, upliftment, empowerment and
development.
The citizens with disabilities have the right to live with dignity and honor, with the identity of their
diversity, and have equal access to public service and facilities.
Right relating to education: Every citizen have right to get compulsory and free education up to
the basic level and free education up to the secondary level from the State.
Economically indigent and disable citizens have right to get free higher education in accordance
to law. And every Nepalese community residing in Nepal shall have right to get education in its
mother tongue.
Rights of Dalit: The Dalit students have right to free education with scholarship from primary to
higher education. There are special provision or reservation seats for Dalits in public service or
other sectors of employment.
Right to social security: The indigent citizens, helpless citizens, helpless single women, citizens
with disabilities, children, citizens who cannot take care of themselves and citizens belonging to
the tribes on the verge of extinction shall have the right to social security in accordance with the
law.
The process like positive discriminations is enhanced in order to improve the socio-economic
situation of weaker sections. And on the basis of reservations for weaker class, people form
difficult geographic structure etc. is provided in public employment, educational institutes, and
legislatures at different level.
There is the part of fundamental right where a citizen can enforce the right in the court of law if it
is infringed by the state or anyone. The law not only helps provide these rights but also emphasizes
the protection of them.
Hence, in our society law has always played an important role in order to protect the interest of
weaker section. People from weaker section of our nation are now capable to compete in today's
world with the help of reservation and protection of their rights provided by the government.

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 E. Law as an Instrument Promoting Socio-Economic Justice in the Society
Before knowing about social-economic justice we should know about what is social-economic.
Social-economic means combination of social and economic facto. Economic justice is a
component of social justice. Talking about social justice means providing basic social right to the
people who are still unaware about social right in many rural area. We can also say social justice
means justice given to people related to social-economic rights. Law plays a crucial role of means
to provide such justice in the society. Different rights related to economic helps to give justice to
those who are lacking behind due to less knowing to those who are lacking behind due to less
knowledge about the rights related to social and economic factor right to adequate standard of
living, including adequate food, clothing and housing, right to work , right of everyone to form
trade unions and join a trade union, right to social protection etc. are social basic social-economic
right that are carried under social-economic justice.
Economic justice is a component of social justice. It is a set of moral principle for building
economic institution, the ultimate goal of which is to create a sufficient material foundation upon
which to have a dignified productive and creative life. An example of economic justice institution
is progressive taxation a system of taxation where in the base income amount increases. The goal
of progressive taxation is to remedy income inequality and to provide funds for social service
public infrastructure and education. Earned income credit affordable housing and need based
federal financial aid for college students are other example of economy justice.
Interwoven and complementary, the term socio-economic justice stems from social justice and
economic justice, which indicates social and economic progress and development of all human
beings without any discrimination. Laws were not made not only to regulate duties but also protect
the rights. The right to an adequate standard of living provides a guideline for the concept of
economic and social welfare because it is inclusive of the right to development, social security and
respect and human dignity.
Looking at the context of Nepal, the socially and economically backward groups of people are
forced to face discrimination of people of higher positions with power to exploit them for personal
gains. Socio economic features come into play because the lesser the status of the person in the
society, the higher the chance of being exploited. Therefore, inclusive laws with provisions related
to equity rather equality is brought together. Law doesn't discriminate because it applies to equally
to all, with very little exceptions, in the case of children and minors. The majority of Nepalese
citizens are not much aware of the laws that are concerned with them. They tend to misinterpret
laws as something that is only for the higher status people and not them when the Constitution of
Nepal 2072 has fully embraced the idea of multi-caste, multilingual and multi-cultural aspects of
the Nepalese community to end discrimination and promote social and cultural solidarity and
tolerance. They do not like to go to courts to settle disputes. The law did bring noticeable reforms
on the reservation system, which is a welcome change. This attempt has successfully helped many
people from the minority groups to get into institutions which used to bar them entering because
of their caste, gender or ethnicity. Although not many approach the court easily, those who actually
do have been given the right to fair trial.

25 | P a g e
 In conclusion, socio economic are the two parts of a same coin. It helps in uplifting the
unprivileged people. Law secures the right of the unprivileged and minorities. Law also advances
to the people in the form of guaranteeing fundamental right like employment, fair trial. The
example can be constitution which serves the people.

F. Law as a means of framing systematic structure of society- means of social

engineering
Law is a set of rules and regulations. It tells us what to do and what not to do. It also tells us about
our fundamental rights and duties. It provides us protection & equality. Every state or nation has
its own law. Everyone must follow the law and who doesn’t follow it, is punished by the law.
Social engineering is the use of centralized planning to manage social change and regulate the
future development and behavior of a society. Another aspect of social engineering relies on
people's inability to keep up with a culture that relies heavily on information technology. Social
engineers rely on the fact that people are not aware of the value of the information they possess
and are careless about protecting it.
What Would Happen If There Are No Laws?
• More chaos • No police • No govt. • More crimes. • Society would break down. • Without law
it would be survival of the fittest and everyman for himself. Not an ideal lifestyle for most. •
Without it there would be chaos and conflicts between social groups, society, construction, etc.
Laws are everywhere, and it is pivotal that we follow them. • Then the world would be unsafe
and there would be no order in society.
Roscoe Pound introduced the doctrine of “Social Engineering” which aims
a t b u i l d i n g a n efficient structure of society which would result in the satisfaction of maximum
of wants with the minimum of friction and waste.
According to pound,” Law is social engineering which means a balance between the
competing interest in society.” in which applied science are used for resolving
individual and social problem.
In a society everybody is motivated by their own interest and wants that preference
be given to his or her interest over the other. Conflicts between interests arise because
of the competition of the individual with each other, with the public in order to satisfy
human wants.
For the purpose of satisfying human interests, pound defined interest as ‘claims or
wants or desires which men assert de facto (in fact) about which the law must do
something if organized societies are to endure.’ Pound classified various interests
which are to be prepared by the law under three categories which are the following:

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1. INDIVIDUAL INTERESTS/ PRIVATE INTEREST
The private interest to be protected by law are:
 Individual interest of personality; it includes physical integrity, reputation etc
and are safeguarded by law of contract, tort, constitutional law, criminal law
etc.
 Individual interest in domestic relation; it includes marriage, relation of
husband and wife, parents and children.
 Interest of substance. It includes proprietary rights, occupational freedom etc.

2. PUBLIC INTEREST
The main public interest according to roscoe pound are;
 Interest in the preservation of state.
 Interest of state as the guardian of social interests such as administration of
trust, charitable documents, protection of natural environment, territorial,
waters, sea shores, regulation of public employment and so on.
3. SOCIAL INTEREST
The social interest deserving legal protection are;
 Interest in the preservation of peace and order and maintaining general security
interest.
 Preserving social institution like marriage and religious institution.

 Interest in conserving social resources, protection of economically weaker

section of society.

 Interest which promotes human personality by enabling a person to live

political physical, culture, social and economic life to suit his taste and
improve his personality.

Julis stone has rejected the division of public interest and social interest on the
ground stating that they all are social interest.

Law can be said to be an instrument for social engineering in different ways:

1. as a means of trying to control human behavior with the emphasis of law.
2. Also, to predict the actions of people in the relation to commit crime. • LAW is meant for social
change; many social evils have been removed like untouchability.
3, Law is one aspect of "formal social control" which is based upon legal enforcement. Formal
social controls are used when "informal social controls" don't provide social order. Informal social

27 | P a g e
controls consist of interpersonal reactions such as a smile, frown or ridicule which are used in
order to reinforce societal norms onto a group or individual.
Law as Social Engineering Law is a body of knowledge and experience with the aid of which a
large part of social engineering is carried on. It has rules, principles, conceptions and standards for
conduct and for decisions, but it has also doctrines and modes of professional thoughts. He says,
“Like an engineer’s formulae, laws represent experience, scientific formulations of experience and
logical development of formulations; also, inventive skill in conceiving new devices and
formulating their requirements by means of a developed technique”. This is his “Theory of Social
Engineering”.
By ‘social engineering’ Pound means a balance between competing interests in society for the
greatest benefit. Law should procure the greatest good of the largest number in society. Positive
law should be such that it suits the need of time; it should affect a compromise of conflicting
interests. Law is not based on absolute ideas, insofar as it is positive law. It is reflection of a culture
of a given community. It varies with time and with the views of generations

28 | P a g e
 CHAPTER-4
SOURCES OF LAW
A. CUSTOM AS A SOURCE OF LAW
When a large section of the society are in the habit of doing a certain act over a very long period
of time, it becomes custom. The drive behind the evolution of such practices is sheer imitation.
The long run practices and usage, which later got social recognition are regarded as customs.
According to Austin, "Custom is a rule of conduct which the governed observed spontaneously
and in pursuance of law set by a political superior."
According to Salmond, "Custom is the embodiment of those principles which have commended
themselves to the national conscience as principles of justice and public utility."
Holland says that, "Custom is generally observed course of conduct."
To the savages, custom was all in all. They were guided by magic and taboo. But with time men
began to reason and rejected the unreasonable customs and accepted the reasonable ones.
Salmond has given two reasons for the recognition of the customs as laws:
 Custom is frequently the embodiment of those principles which have commended
themselves to the national conscience as principle of justice and public utility.
 Custom is to society what law is to the state.
 According to Dias, The reason that the customs are accepted as laws is that local people
had built expectations based on local practices and to have ignored these customs would
have caused injustice.

Any customs to be legally recognized and enforced should fulfill some essential conditions. Some
of them are:
 Immemorial antiquity: Any custom to be valid must be immemorial. In order that a custom
may have the force of law, it is necessary that it should be ancient. The custom must have
well stood the test of time.
 Continuous: A custom to be valid must have continued without interruption from time
immemorial. Tis refers not to the active exercise of the custom but rather to its assertion.
 Obligatory force: The custom must have an obligatory force. It must have been supported
by general public opinion.
 Certainty: The custom must be certain and precise. It must be definite.
 Consistency: The custom must be consistent with other customs in the locality.
Other essential conditions are: reasonableness, not to be immoral, peaceable enjoyment,
conformity with enacted law.

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Types of custom
 Customs without sanction: They are those customs which are non-obligatory. They are
social customs.
 Customs with sanction: These re those customs which are enforced by the state. According
to Salmond, it is of two kinds:
 Legal customs
 Conventional customs
Legal custom: Legal customs are those customs which have been granted the legal status. They
carry the force of the law. They are of binding nature. These customs are either legislated in the
laws of the country or are judicially recognized by the courts. Legal customs are of two kinds.
They are:
1. Local customs: Local customs is meant to those customs which is applied only to a definite
locality of the country such as a district, town or area. But they don't imply geographical
locality only. They can be customs of certain sections or family. The local custom can be
a source of law only if it is reasonable, of immemorial antiquity, continuous, consistent
with the laws of the land.

2. General customs: General custom is the custom prevailing throughout the country and not
only limited to a certain locality. They must be reasonable, accepted as binding, and must
not be in conflict with the law of the country to be the source of law.
Conventional customs: Conventional customs are those practices which operate only through the
voluntarily agreement between the parties. The conventional customs are also binding on parties.
They are binding not by their force but rather by the force of agreement. Examples of conventional
customs are generally found in the trade and commerce.

Customs are the source of laws. Some of the examples of the customs that have now been included
in the laws are:
 The husband's surname will be the official surname of the wife. (But she can choose to
keep her parental surname as well).
 Husband's house will be the official house of the wife unless they decide to stay somewhere
else with mutual understanding.
 Every infant after being born would get the name that his/her parents have chosen for
him/her according to their religion, custom and tradition.
 Every son/daughter will have to look after or take care of his/her parents along with respect
according to the best of his/her abilities.
 Every parents have the right to make decision for their children to construct positive
attitude and behavior as long as it is in the child's best interest.

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  Incest marriage is strictly prohibited except for some religion or ethnic groups that consider
it to be the part of their religion.
 No one is allowed to destroy, sabotage or damage any religious sites or articles or objects
of any group or religion.

Some of the customs that have now been restricted by the laws are as follows:
 Discriminating someone on the basis of caste, race, religion, and gender is now been
prohibited by the law.
 Child marriage which was a custom in the past has now been strictly prohibited.
 Dowry was a tradition, an inevitable part of marriage. But now any sort of exchange
between the bride and groom's family indicating dowry in the marriage is against the laws.
 Polygamy has been prohibited.
 Daughters were not considered to be a part for the parental property. But now the parental
property should be equally distributed among the children may it be son or daughter.

B. PRECEDENT AS A SOURCE OF LAW

Precedent means a previous instance or case which may be taken as an example or rule for
subsequent cases.
In common law legal systems, a precedent is a legal case that establishes a principle or rule. This
principle or rule is then used by the court or other judicial bodies when deciding later cases with
similar issues or facts.
According to the Black’s law dictionary, precedent is the making of law by a court in recognizing
and applying new rules while administrating justice. It is decided case that furnishes a basis for
determining later cases involving similar facts or issues.
In short, we can say precedent means, the guidance or authority of past decisions for future cases.

Historical development of precedent as a source of law

Precedent is an important source of law,but it is neither as modern as legislation nor it is as old as
custom .It is an important feature of English as well as of other common law countries ,which
follows English legal system judiciary is considered as one of the important organ of state it is the
body to protect the right of the people and also an organ to established precedent while deciding
case .
In the context of Nepal before 2007,there was no provision of the judge making law or case law
having its source in precedent in the Nepalese legal system. But after 2007,by the enactment of
Nepal Pradhan Nyayalaya Act 2008 B.S .Nepalese legal system received the system of case law
then after precedent become one of the major sources of Nepalese legal system .In Pradhan

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Nyayalaya Act 2008 it is mentioned that “Any case law declared by Pradhan Nyayalaya in course
of lawsuit shall be mandatorily followed by the court which are subordinate to it . The system of
judicial precedent continued to develop in Nepal. The supreme court Act 2013also stated that
precedents established by it to be mandatory for subordinate court .The principle of stare decisis
was given the constitutionality for the first time by the constitution of Nepal in 2019 .this
constitution enshrined the principle of judicial precedents .The constitution of kingdom of Nepal
,2047 also continued the tradition and extended precedent’s application to administrative agencies
of the government .The interim constitution of Nepal 2063 has also followed the tradition of
recognizing the precedent as a source of law .The constitutional provision concerning authority of
precedent reads as “any interpretation given to a law or any principle laid down by the supreme
court in the course of hearing of suit shall be binding on the government of Nepal and all offices
and court.The constitution of Nepal also recognized precedent as a sources of law .
Since 2015 ,The supreme court of Nepal is publishing regularly a journal called Nepal kanoon
patrika which published selected cases decided by it to ensure availability the decision to the
general people .this journal gets published in monthly basis.

Here are two precedent law cases:

1) Prakashmani Sharma vs. Prime Minister and Secretariat of council of ministers

In this case the litigant has filed a PIL to protect women’s reproductive and health rights.in this
case regarding widespread uterine prolapse in Nepal, the supreme court issued an order of
mandamus in the name of government of Nepal to bring about an special action plan the protection
of the reproductive health of the victim women . in the decision, the court also said that there must
be free medical treatment, free distribution of medicines ,contraception for controlling births and
free counseling should be given in health post ,hospital centers in proper way to protect the health
of women .the court also asked why prolapse is common in women ?how can women be protected
from this awareness about this and its prevention should be raised among all the people whether
male or female and should be practice to eradicate the problem of prolapse especially in western
Nepal.
2) Sapana Pradhan Malla vs. Prime Minister and council of minister (2010)

In this writ the petitioner demanded to keep confidential the name and other information of women
and child victim of certain specific cases to respect their right to privacy. the supreme court issued
a directive order under the right to privacy not to disclose the name of children and women victims
whose cases are being heard in the court .adding to this decision the information of the victims of
rape trafficking and HIV infected person should be kept confidential and not disclose publicly .this
decision was not only made in the name of the resonant but also annexed a complete set of
guidelines to be followed by the concerned courts and authority.
There are two main types of precedent law:

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Binding precedents and persuasive precedents. As the names suggest, a binding precedent obliges
a court to follow its decision, while a persuasive precedent can influence or inform a decision but
not compel or restrict it.
The effective functioning of precedent requires three things.
● First, it needs a clear and well-defined court hierarchy, so the function and status of each
court are clear.
● Second, it needs close adherence to the principle of stare decisis by judges and magistrates.
● Third, it requires a thorough system of law reporting, so that records about other decisions
and precedents are available to all judges.

Binding Precedents
This type of precedent is called a ‘mandatory precedent’ in some court systems. A binding
precedent requires all inferior courts to follow the ratio decendi of superior courts when
the facts of a case are the same or similar. Note that precedents can only be binding in the
same jurisdiction, such as State court hierarchies. Precedents established in the Federal
Court, for example, are not binding on court hierarchies in any of the States.

Persuasive Precedents
In persuasive precedent, the decisions of lower courts or courts in other jurisdictions can
never be binding, they can certainly influence the decision of a court. Judges can examine
the precedents established in these courts for guidance and information. They may
study the precedent of an inferior court or a court in another hierarchy. Or they may develop
a new precedent that is informed or shaped by these persuasive precedents. There may be
no scope for a persuasive precedent if there is a binding precedent that must be applied.
A court can only choose to follow a persuasive precedent if no relevant binding precedent
exists in its own hierarchy.

Here is the basic way to understand the differences between the types of precedents.
Binding/Authoritative precedent Persuasive precedent
It must be followed by the judge It is not mandatory to the judge and they are not under the
whether they approved it or not. obligation to follow it.
● Judge have no option either Judge will take into consideration and they will attach such
to accept or reject it, they weight as it seems to them to deserve
must followed.

Authoritative precedents are legal They are only historical source of law.
sources of law.

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 Are recognized by the decision of Persuasive precedent are foreign judgment, the decision of
the superior courts of the of justice the superior courts in other portion of common wealth
in England nations.

Elements of precedent
1. Obiter dicta
An obiter dictum refers to parts of judicial decisions which are general observations of
the judge and do not have any binding authority.

2. Ratio decidendi
What the court decides generally is the ratio decendi of rule of law in a case before it.

The famous cases of the precedent law are:

1. Roe v. Wade affirms the constitutional right to access safe, legal abortion. The case was
decided by the Supreme Court on January 22, 1973. More than 40 years later, Americans
overwhelmingly support the decision. Today, 72 percent of Americans — including a
majority of Democrats, Independents, and Republicans — don’t want to see Roe v. Wade
overturned. The data is clear: Despite attacks on rights, Americans support Roe v.
Wade and the constitutional right to access abortion.

2. The Supreme Court’s decision in Miranda v. Arizona addressed four different cases
involving custodial interrogations. In each of these cases, the defendant was questioned by
police officers, detectives, or a prosecuting attorney in a room in which he was cut off from
the outside world. In none of these cases was the defendant given a full and effective
warning of his rights at the outset of the interrogation process. In all the cases, the
questioning elicited oral admissions and, in three of them, signed statements that were
admitted at trial. Miranda was arrested at his home and taken in custody to a police station
where he was identified by the complaining witness. He was then interrogated by two
police officers for two hours, which resulted in a signed, written confession. At trial, the
oral and written confessions were presented to the jury. Miranda was found guilty of
kidnapping and rape and was sentenced to 20-30 years imprisonment on each count. On
appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not
violated in obtaining the confession.

✓ More examples of precedent is the legal decision in Brown V. Board of Education

guiding future laws about desegregation. When the US supreme court ruled in favor

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 of Brown V. Board of Education it set a precedent for ending segregation in public
schools. Separating children’s in public schools on the basis, of race was
unconstitutional. It signaled the end of legalized racial segregation in schools of
United states, overruling the “Separate but equal “Principle.

✓ Another example of precedent is Tirtha Dangol V. HMG guiding future laws about insane
personal. When supreme court ruled in favor of Tirtha Dangol V. HMG it set a precedent
that crime caused when the culprit’s mental status is not stable, is not categorized as crime.
Here, culprit was suffering from schizophrenia mental diseases under which a person may
commit any type of act as mentioned by doctor.

C. LEGISLATION AS A SOURCE OF LAW

Legislation is considered as one of the most important sources of law. Legislation means making
a law. In fact, this source of law is comparatively of recent growth. We may say that custom
precedes legislation, and as society advances is replaced by it. Moreover, much early statute law
is no more than formal promulgation of well-established customs. According to Salmond,
legislation is that source of law which consists in the declaration of rules by a competent
authority. For Gray, legislation is the formal utterances of the legislative organs of the
society.
Law making by legislators is different from the law making by judges. Judges create law only for
the case in dispute while legislators lay down rules purely for the future and without reference to
any actual disputes.

The term ‘Legislation’ is derived from the Latin words ‘Legis’ a law and ‘Laterm’ meaning to
‘make’, ‘put’, and ‘set’. Thus etymologically, legislation means making or setting law. When used
in wider sense, the term includes all methods of law making but when used in strict sense,
legislation is the laying down of legal rules by a sovereign or subordinate legislator.
Place of Legislation as Source of Law
Today, the place of legislation as a source of law is very high. Among the sources of law, the most
important, today as so recognized, is that of legislation. Custom which played a significant role in
ancient times lost much of its importance. At present customary laws have been incorporated
statutes. Legislation is considered as superior even to precedents. It voices the views of the people;
bills are circulated for public opinion and it is the voice of public opinion echoed in the voice of
statute. It is direct and unambiguous. It is definite and precise as comparison to case law which is
mostly bulky and voluminous.

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Examples
1. The Muluki Ain which was coded beforehand was published in the year 2019 B.S. and later,
after 12th amendment it was amended in the year 2072 B.S. The civil and criminal code was
compiled in the same book. After that legislative organs passed the new code in 2074 B.S. named
मुलुकी दे वानी (संहिता) ऐन, २०७४ र मुलुकी दे वानी कार्यहवहि (संहिता) ऐन, २०७४ and मुलुकी अराि
(संहिता) ऐन, २०७४, मुलुकी फौजदारी कार्यहवहि (सं हिता) ऐन, २०७४ र फौजदारी कसूर (सजर् हनिाय रण
तथा कार्ाय न्वर्न) ऐन,२०७४.
2. In the earlier Muluki Ain , check and bill was not included in the transaction. Later, the
legislative body passed that even bill and check should be included in transaction. It is clearly
mentioned in the part-4 in article-15 of मुलुकी दे वानी (संहिता) ऐन, २०७४ र मुलुकी दे वानी कार्यहवहि
(संहिता) ऐन, २०७४. दे वानी (संहिता) ऐन, २०७४ र मुलुकी दे वानी कार्यहवहि (संहिता) ऐन, २०७४ .

i.e. पररच्छे द – १५; लेनदे न व्यविार सम्बन्धी व्यवस्था

४७६. हलखन नगरी लेनदे न गनय नहुने ; कसैले पहन कानून बमोहजम हलखखत नगरी लेनदे न गनय हुदै ैँन।

स्पष्टीकरण ; र्स पररच्छे दको प्रहर्जनको लाहग “हलखत” भन्नाले कुनै लेनदे न काररबार प्रमाहणत गने चेक,
नहबल, भौचर, रहसद र भरपाई समेतका कागजात सम्झनु पर्य ।

3. In earlier Muluki Ain, there wasn’t any provision of [Follopbhog] ‘फलोपभोग’ . But later the
legislative body passed that the provision of Follopbhog in the part – 4 in article – 7 of मुलुकी
दे वानी (संहिता) ऐन, २०७४ र मुलुकी दे वानी कार्यहवहि (संहिता), २०७४.

i.e. पररच्छे द – ७

फलेपभोग सम्बन्धी व्यवस्था

Kinds of Legislation
Legislation are of two types -
1. Supreme Legislation
2. Subordinate Legislation

1 Supreme Legislation
Supreme legislation is that law, which is enacted by this legislature. Legislation is the supreme
authority in a state, which has the power to make the law. Legislation is, generally supreme because
no authority can annul, modify or control it. It proceeds from the sovereign as supreme legislative
power in the state, and which is therefore, incapable of being abrogated by any other legislative
authority. The law enacted by the parliament in England are the examples of supreme legislation.
The British parliament is, in every sense, a sovereign law making body. Its law cannot be
questioned in the British Courts.

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2 Subordinate or Delegated Legislation
Subordinate or delegated means the transfer of authority by one person to another. Subordinate or
delegated legislation is the legislation by any other authority than the supreme authority in the
state. It is made under the powers delegated b the supreme authority. Such legislation owes its
existence, validity and continuance to the supreme authority. Delegated legislation refers to those
laws made by the person or body to whom parliament has delegated the law making authority. It
refers to all law making which take place outside the legislature and is generally expressed as rules,
regulations, by laws, orders, schemes, directions or notifications, etc.
a) Colonial Legislation – Those counties which are not independent and also in the control of
other nation and which has no supreme power to make law that is called colonial states. When law
making authority depend on other nations that is called colonial legislation and the law made by
the colonial parliament is known as colonial legislation. Formerly, Britain has made many colonies
and dominions. Legislation by the legislative of the colonies for the self-government is subject to
the control, alternation, repeal or supersession by the legislation of the British Parliament. As the
colonies achieved independence this class of subordinate legislation is absolute today.
b) Executive Legislation – Legislation has provided some law making power to executive and
that law made by the executive body is called executive legislation. The legislative body enacts
the fundamental only conferring upon the executive a rule making power or carrying out the
intentions of the legislature. The rules made in the pursuance of this power of delegated legislation
have the force of law. Thus, this kinds of legislative power possessed by the executive is a species
of subordinate legislation. For example, section 5 of the Civil servant Act, 2049 B.S. of Nepal
allows the government to make rule.
c) Judicial Legislation – Law making powers are also possessed by the judicature for the
regulation of their internal business proceedings of the courts concerning their day to day
functioning. This is known as judicial legislation and is different from judicial precedent. The
Supreme Court Act, 2048 was enacted by the parliament and under this Act the Supreme Court
has made Supreme Court Legislation, 2049.
d) Municipal Legislation – Municipal authorities are entrusted some powers of making special
laws of their territorial jurisdiction under their control. They are allowed to make by e – laws for
limited purposed within areas.
e) Autonomous Legislation – The autonomous bodies of the state makes rule in accordance with
the delegated legislation from the supreme legislation are called autonomous legislation.
Autonomous bodies like universities, corporations, railway companies, club, etc. have the power
to make rules for the conduct of their business. These rules are too made by them in the conformity
with the act of parliament. Tribhuvan University makes regulation in accordance with the T.U Act.

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Statute Law
It is written law set down by a body of legislature or by a singular legislator (in the case of absolute
monarchy).
Advantages of Statute Law
1) Direct and unambiguous.
- Statute law is direct and unambiguous. It is brief, clear, easily accessible and
knowledgeable. While no one but a lawyer can unravel a rule of law from the mass of
decisions cited in support.
2) Concise and definite
- Statute law is concise and definite contracted with case-law which is bulky and
voluminous. Salmond observes “case-law is gold in the mine – a few grains of the
precious metal to the ton of useless matter – while statute law is coin of the real is ready
for immediate use.”
3) Constitutive and abrogative
- Statute alone can both create and destroy rules of law. In statute law, legislature can
repeal today what it enacted yesterday.
Interpretation of statutes
According to Salmond, interpretation is the process by which the courts seek to ascertain the
meaning of the legislature through the medium of the authoritative forms in which it is expressed.
To interpret broad and ambiguous statutory language, courts look to the following for guidance –
1 The actual language of the statute, the words chosen by the legislature.
2 The context within the statute. What is the subject or purpose of other headings or sections
in the same statute? What language do complimentary statutes contain? Is there a statutory
statement of legislative purpose?
3 The legislative history of the statute. A statute’s legislative history provides information to
the court about the legislature's intent in adopting the statute.
4 Administrative interpretations by the agency charged with administering the statute. They
occasionally provide a more specific indication of the statute’s meaning.
5 The interpretation of other courts consider how courts at a higher level, the same level or
even a lower level have applied the statute.
6 The broader context of the statute. What kinds of events were taking place that caused the
legislation to be created? What goals were to be furthered by enacting the statute? If a
statute overrides common law or tries to fill in a gap in the common law, understanding
the problems that led to the enactment can help define the scope of the statute.
7 A comparison with similar statutes of other jurisdictions.

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 Kinds of interpretation
1 Grammatical interpretation
2 Logical interpretation
Grammatical interpretations arrived at by reference to the laws of speech to the words used in
the statute, in other words it regards only the verbal expression of the legislature.
Logical interpretation gives effort to the intention of the legislature by taking into account other
circumstances permissible according to the rules on this behalf.
The courts generally followed five rules for construing a statute and also maxims. These important
rules are-
1 Literal rule
2 Golden rule
3 Mischief rule
4 Beneficial rule or equitable rule
5 Harmonious rule
1 Literal rule - It is a rule of construction of statutes that in the first instance the grammatical
sense of the words is to be adhered to.
2 Golden rule - The golden rule allows the plain meaning to be departed from it where a strict
adherence to it would result in an absurdity. S.R. Das, J observed that the cardinal rule of
construction of statutes is to read the statute literally. Such readings leads to absurdity and the
words are susceptible of another meaning the court may adopt the same. If no alternative is
possible, the court must adopt the ordinary rule of interpretation.
3 Mischief rule - This rule was put into words in Heydon’s case. It states that for the true
interpretation of all statutes in general, four things are to be considered: (i) what was the common
law before the making of the act: (ii) what was the mischief and defect which the common law did
not provide: (iii) what was the remedy parliament has appointed to cure the disease of the common
law: (iv) the true reason for the remedy.
4 Beneficial rule or equitable rule - It is applied to all those statutes which deserve liberal
construction. Socio-economic legislation with securing social welfare objective is not meant to be
interpreted narrowly. Liberal construction means to give the language of statutory provision, freely
and consciously. Most comprehensive application may be accorded without damaging to any of
its terms.
5 Harmonious rule - A statute must be read as a whole and one provision of the Act should be
constructed as to make a consistent enactment of the whole statute. It is the duty of the courts to
avoid any clash between two sections of the same Act. The provisions of one section of a statute
cannot be used to defeat those of another unless it is impossible to effect reconciliation between
them.

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 CHAPTER-5
LAW MAKING PROCESS
FUNDAMENTAL EVOLUTION FEATURES OF ANCIENT LAWS
(HENRY MAINE'S CONCEPT)
1. The primitive/ static society
2. The progressive society

In the primitive society again divides into the four stages

I) Royal judgments
In the beginning the law was made by the command of the ruler believed to be acting
under divine inspiration. During this time the king was regarded as the god, thus,
whatever judgment king gives it is regarded as the judgment of the god. The royal
judgment thus was the only way for the dispute settlement but was not a law making
process.
II) Command crystallize into custom
The 2nd stage occurs when the command crystallize into the customary law. This is the
stage of unwritten law, knowledge of the principles is retained by being kept by a limits
number.
III) In 3rd stage Knowledge and administration of customs goes into the hand of minority,
usually of a religious nature, due to the weakening of the power of original law makers
IV) The 4th stage was the time of codes. law is promulgated in the form of codes, as solans
attic code or the twelve table in Rome

The static society do not progress beyond this stage. It is at this stage the static societies cease
(come to an end) their legal development. Any further development require definite acts.
According to Maine, the societies which do not progress beyond the fourth stage which closes the
era of spontaneous legal development are called static societies. Such society is regulated by
position. The member of a family household, wife, child, slave, remains chained up to the family
nexus (connection) dominated by the patriarchal family.
The cow was regarded as a goddess laxmi in hindu thus during lichhavi malla and the shah period
the cow killing is regarded as the one of the heinous crime and now there is law regarding not
killing
The untouchability has been decreased and various reservation and quota has been provided for
the upliftment of them, socially politically and economically. Discrimination between different
cultural groups has been prohibited.

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Insist marriage has been strictly prohibited except some of the cultural group.
The caste of the husband will be the wifes caste after marriage and it has become a law
2) The Progressive Society:
When the primitive law has once been embodied in code there is no room for any spontaneous
development, i.e. “static” and it does not progress beyond the early legal characteristics and era of
the codes. Outlook of Static (eastern) societies were theocratic, religious and conservative. It is
supposed of constant nature.
“Progressive” societies were those which proceed to develop law in order to make law harmonious
to social needs and change. It develops law through three instrumentalities- legal fiction, equality
and legislation. Outlook of progressive (western) societies were political, military and secular.
Progressive societies were supposed to change with time and situation of developing or
evolutionary societies. It was meant to be of dynamic nature. The methods by which the
progressive societies develop their laws are explained below:
i. Legal Fiction: Legal fictions change the law according to the changing needs of the society
without, however, making change in the letter of law*. Maine define ‘legal fiction’ as “any
assumption conceals or affects to conceal the fact that a rule of law has undergone
alteration, its letter remaining unchanged, its operation being modified.” According to
Maine, fiction is a device to extend new rules to old situations, to new circumstances with
a minimum of intellectual effect. Adding that, it is very useful agency of development of
law to suit intricate and nutty situations. Also, a legal fiction pre-supposes certain
assumptions made on the basis of which the law assumes certain things to exist which do
not exist in reality and thus adopts itself to new circumstances, without offending the
superstition, fear and dislike of change.
ii. Equity: Equity is considered as more advanced stage than fictions. Equity consists of those
principles which appeal to the conscience of human beings. These principles were invoked
to remove defects existing in the common law in England. The rigidity of common laws
judges forced people to approach the King for justice. The king entrusted the task of
administration of justice to the Chancellor who was also the head of Exchequer*. Though
not learned in law, the Chancellor helped in the administration of civil justice through
principles of justice, equity and good conscience. In Rome, similar functions were by
Praetor* who tried to remedy the deficiencies in the existing civil law. That clearly means,
equity came to remove the rigidity of law and to remove injustice, delay and other
inconveniences, and not to destroy common (civil) law. Thus Maine defines equity as “a
body of rules existing side by side of the original civil law, founded on distinct principles
and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent
in those principles.”

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Moreover, in course of time, equity became a system of law (judicature Act, 1873) and it was
provided that in case of conflict or variance between the law of equity and the common law, the
rules of equity were to prevail.
iii. Legislation: Legislation is the most effective way of law-making. It is considered to be the
most systematic and direct method of introducing reforms through new laws. The power
of the legislature to make laws has been widely accepted by the courts and the people all
over the world. Legislation owns great superiority over the methods of evolution of law. It
is perhaps the only method of dealing with new complex problems in a modern state
uninhibited by restraints and limitations except as expressly provided by its fundamental
law. Maine recognized that the advance of civilization demanded an increasing use of
legislation. Codification is an advanced form of legislative development.

Movement from – Status to Contract:

Side by side with the ‘static’ and ‘progressive’ doctrines Maine developed another thesis- “Status
to Contract”. Maine calls the legal conditions prevailing at the end of early static societies as
‘statuses. The rights and liabilities of a member of the community depend on his belonging to a
particular group in the community. The Patriarchal Theory as stated by Maine stands upon the
contention that the states evolves out of the family. The eldest male parent is absolutely supreme
in his household. Society is organized not as a collection of individuals but an aggregation of
families.
Maine celebrated dictum as to the movement from Status to Contract in progressive societies is
perhaps to be understood as limited to the Law of Property, i.e. inclusive of whatever has a value
measurable in exchange. The statement with limitation seems to be certainly just and not
significant. The march of progressive societies witness the disintegration of Pater-families (i.e.
status) and now rights and obligations were dependent on individual contracts and free negotiations
between persons. It gave power to slaves, women, lower class, etc. Also, it led to the disintegration
of the family system and emergence of contractual relation between individuals. In Maine’s word,
“The movement of progressive societies has hitherto been a movement from status to
contact”.Maine observed the uniformity in the movement of the progressive societies by such
natures:
 Growth of the individual obligation- Before individual was steadily substituted for the
family, as the unit, of which civil laws took account. Later, law recognized the individual
as the sole subject matter of rights and duties in place of pater familia who was previously
the sole repository of power, position and authority i.e. of status quo. It repeal the old laws
which restricted the individual freedom and new laws conferred contractual capacity on
the individuals enforcing rights.
 Benthamic doctrine of free contract – It means a contract for regulating relationship
between individuals and freeing the slave from the bondage of the master, employee from
workman and female from husband. This theory gave a death blow to the ancient and
medieval notions.

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  Growth of Commercial and Industrial Culture: Raised a bar of slaves as employee of self-
will. The doctrine of liberty, equality and fraternity of the French Revolution, laissez faire
policy, political changes, etc, restricted the old status relationships.

In Nepalese law
Context- Women Property Rights
Example- Meera Kumari Dhungana v. HMG, Ministry of Law, Justice and Parliamentary
Affairs
Conclusion: Henry Maine’s conception regarding static and progressive societies can be tested in
terms of sequence of changes in the conception of the property rights of women under Nepalese
Laws. The present scenario of the legal framework under Nepalese Laws, property rights of
daughter has been ensured as equal as that of sons. The Amendment made in the Muluki Ain in
2058 B.S. in order to maintain gender equality has brought substantial changes in the conception
of right to parental property of women. The Nepalese Legal System which favored patriarchy and
that did not used to consider women to any of the stakeholder upon the property slowly turned
flexible and started considering the gifts to the women as their property. Later, the conception of
inherited property was accepted but the parental property was not shared among the
daughters. However, the changes in the political system followed by Nepal’s ratification of several
international treaties and conventions regarding the elimination of gender based discriminations
and human rights made it possible that the women were entitled to equal property rights.
Vocabulary:
i. Letter of law: The precise or literal wording rather than the spirit or intent of the matter.
ii. Exchequer: an ancient common-law court of civil jurisdiction in which cases affecting the
revenues of the crown were tried, now merged in the King's Bench Division of the High
Court.
iii. Praetor: (in the ancient Roman republic) one of a number of elected magistrates charged
chiefly with the administration of civil justice and ranking next below a consul.

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 B. ROLE OF SOCIAL FACTORS IN EVOLUTION OF LAW (SAVIGNY'S
CONCEPT)
Savigny, a prominent German jurist, also known as the pioneer of Historical school
Of law through his concept of Volksgeist explains the needs to understand the interrelationship
between law and people. Law and people cannot be isolated from each other and this is well
explained by Savigny’s concept of Volksgeist . . Volksgeist is a German phrase depicting the
unique spirit and character of a nation’s people manifesting itself in various creations like
language, folklore, mores, and legal order.
According to Savigny, the nature of any particular system of law was the reflection of the “spirit
of the people who evolved it”. Savigny believed that law is the product of the general
consciousness of the people and a manifestation of their spirit. The basis of origin of law is to be
found in Volksgeist which means people’s consciousness or will and consists of traditions, habits,
practice and beliefs of the people.
According to him, law is not an autonomous system, but an integral part of the social life of a
community. As the language, culture, political system, and economic structure of society evolve
the law changes with them. A nation’s legal system is greatly influenced by the historical culture
and traditions of the people and growth of law is to be located in their popular acceptance. Since
law should always confirm to the popular consciousness i.e. Volksgeist, custom not only precedes
legislation but is also superior to it. To him, legal system was a part of culture of a people. Hence,
law wasn’t the result of an arbitrary act of legislation but developed as a response to the impersonal
powers to be found in the people national spirit.. According to him, law is an expression of will of
the people. It doesn’t come from deliberate legislation but arises as a gradual development of
common consciousness of the nation.
‘Law’ grows with the growth and strengthens with the strength of people and finally dies away as
the nation losses its nationality. Law was evolved with customs, language, manner and
constitutions of the particular society. Artificial and individual arbiter codification cannot
influence on growth and evolution of law (NepoleonCode was individual will). He believed that
the law would spontaneously grow in society, which converts customs and tradition into law due
course of time

Savigny believed that law was like language which gradually evolved and shaped by religion,
custom, habits, and tradition etc of the people. Thus bears a national imprint and character. Laws
aren’t of universal validity or application. Each people develop its own legal habits, as it has
peculiar language, manners and constitution.
He insists on the parallel between language and law. Law is like language as language changes
with habit same is law. Similarly, he also states that “The foundation of the law has its existence,
its reality in the common consciousness of the people. We become acquainted with it as it
manifests itself in external acts, as appears in practice, manners and customs. Custom is the sign
of positive law.”
Each nation has some peculiarities of custom and attitude which cannot be learned from their
written codes or treatises or even wholly from their judicial decisions. As the social values and
custom of one society differs from another society, the laws made on the spirit of the people of a
particular society may differ from other.
So, law making process would be not universal it is relative to the particular society.

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Application of Savigny’s Theory in this context of Nepal

The historical school had been profoundly used in the law making process of Nepal. In the ancient
time the society was ruled by social norms and values which have created morality to that society.
So people used to follow Dharma as a law and Dharma or any religious epics were made according
to their social norms and values or the morality has been practiced in various societies in various
ways so that we can see now the nature of morality was different from one place to another.
The civil and criminal code of Nepal also has codified the dominant of Hindu value system. Cow
is considered as goddess and therefore killing of cow has been regarded as sin. This traditional
sentiment of Nepalese society has been codified as law in MulukiAinChaupayakoMahal (Chapter
on Quadruped) where provision of punishment made on killing of Cow.
The Constitution of Nepal has also recognized the traditional custom. There are various instances
like fundamental right to profess culture, not to be double jeopardized under the right regarding
Criminal Justice system.
The court have also emphasized the prevailing custom, culture and social context in adjudicating
several cases. Just like in the case of Tara Devi Poudel v. Secretariat council of ministers, where
the issue raised was in conformation with the prevailing custom and usage, the court held that law
cannot be made ignoring the social context. Our society does not permit marriage between widow
and her brother in law.

The Nepalese legal system in order to protect and preserve the custom and usage on which certain
communities are well acquainted with have recognized aba allowed marriage with in the ancestral
linage among the Gurung, Limbus, Rai etc. communities and also polyandry in certain
communities like Sherpa communities is allowed. No matter what the international standard is or
the laws of another society, these usage and customs are freely allowed to be continued.

Criticism of Savigny’s Theory

1. Savigny fails to give proper importance to the face that in certain fundamental legal issues, like
the tenets of inalienable and universal human rights, there are basic principles of law of
jurisprudence that are, indeed, universal and objectives in nature, regardies of time and space, so
to speak and regardless of location and culture.

2. Savigny only look after the custom and its social acceptance. He never talks of reason behind
social custom. He ignored ethical and moral values. For eg; can all custos be positive? There are
many defective customary practice made from time immemorial.

3. Some customs are even barbaric, inhuman and unreasonable. Such defective customs will not
work properly in any society. Some rules of customary law may not reflect the spirit of the whole
population. Eg; Local customs. Even in small groups, people hold different views on different
issues and the spirit does not exist

4. Savigny’s view that the popular consciousness is the source of all law is not true. Sometimes,
an alien legal system is successfully transplanted in another country. The reception of English law
in many parts ot the world is evidence of supranational and adaptability and resilience.

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5. Important rule of law sometimes with in the nation and not as a result of imperceptible growth.
That applies to the law relating to trade union and industry.

6. Some customs are not based on an instinctive sense of right in the community as a whole but on
the interest of a strong minority for example slavery.

7. The flood of legislation in the twentieth century connect with what has become known as the
‘welfare state’ marks the denial of Savigny’s views in practice if not in throry. Law has been used
to plan the future deliberately and not merely to express and order the result of past growth.

8. He is based on ‘Nationalist Approach’: law only as the ‘original lea of land’ in this age of science
and technology, globalization no society can wait for development of law thought custom.

9. If societies cannot go on developing with methods than the society is considered static rather
progressive. So, society needs changing with spontaneous legal development.

10. An attempt to keep law completely insulted from the external social forces beating against the
armor by which the law seeks to protect its internal structure will necessarily be doomed to failure.

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 Ancient Law making process
LAW MAKING PROCESS DURING GOPAL ,MAHISPAL AND KIRANT
DYNASTY
GOPAL AND MAHISPAL DYNASTY:
During this peiod law were based on dharmasastra, manusmriti, sanads.

KIRAT DYNASTY:
The first ever known justice system in Nepal was introduced by the kirat dynastry. Yehang
mundhum was the holly book which established the laws for guiding the kirat society. Kirats
have been supposed to initiate the first step of administration and other judicial development.
They follow their holy scripture called Kirat Mundhum, which is also known as Kirat Veda.
They are true nature worshipers. At that period supreme power or the authority to give
punishment was vested upon the king and the people related to the administration.
Kirati people prepared religious laws and customary law to adjudicate various crimes. The
Kiratis had their own laws for the kingdom
Mundum was their one of the most important source of law as well as the guideline of
governance. The religion, customary practices, traditions, conventions and certain other rules
developed by the society were the source of law then.
Kirat states in Northern Nepal had a provision of five henious crimes which were looked after
by the states head in the presence of panchavaladmi where the punishment was given according
to free trial, evidence and witness.

Pancha Aparadh/Five Heinous Crimes

• The Pancha Aparaadh or the 5 heinous crimes came under the Sulli court's matter under
jurisdiction. The contemporary categorization was done on the basis of crimes that were
more vulnerable to be committed and most recurring.

• The criminal liability was basically accusation and the burden of proof lay in the hands of
the ACCUSED, in contradiction to the modern era where it lies in the hands of the
prosecution (lawyers appointed by the state).

• Any crime that fell under the category of the Pancha Aparaadh was considered inexcusable.
Death penalty was the punishment offered in general yet uniformity was not seen. Though
capital punishment was an obvious retributive chastisement, the concept of "an eye for an
eye" seemed to prevail; considered to be an inhumane practice in present day context.

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 S.NO CRIME PUNISHMENT
1 Theft Hand cut off or put in boiling water
The thief’s hand was either put on the boiling water
or chopped off.
2 Homicide (Murder) Punishment was death penalty.
3 Jari (Eloping others wife) If the wife elopes with other man (jaar) either sadhu
(husband of the wife) could murder the jaar if
he(sadhu) found him(jaar) or the state/king could
confiscate all the property of jaar and give it to sadhu.
The sadhu could kill the jar on the spot if he finds
him, if not then a part of his property would be given
by the king to the sadhu as a marriage expense.
4 Treason (Crime against the Death Penalty/
state) The criminal was exiled from the country.
5 Abetment thereof Death Penalty
The person who betrayed the throne was exiled and
if he/she had any governmental post then they were
removed from it.
• Besides these five heinous crimes there were also other types of crimes in those periods.
Some crimes are: Hadphora (person committing incest with the father and its relation).

• The criminal was treated as a slave

• And the Dudhphora (person committing incest with the maternal relations) was supposed
to be killed by god who would take a form of lightning.

• Marriage relation with the ‘mit’ was also considered as crime. In this crime the sinner was
supposed to be punished by the god and it was also said that the criminal’s life will be
worse till 10 generation.

There were other crimes mentioned in the Kirat period they were- fighting, telling lies,
discrimination, doing bad, etc was considered as crimes in Kirat period.

Punishment:
• At the time of hearing of any case, there had to be the presence of the Panchavaladmi and
punishment had to be given on the basis of free trial, evidence and witness. The fines
collected from the cases were given half to the King/ministers and next half to the
Panchavaladmi.

1. Thieves were punished by burning their hands on the boiled water.

2. Those who violate the peace environment, they were supposed to go to the
temple and then regret in front of god.

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 3. Those who break relation or get involved in sexual relations with father’s
relatives, they were punished by making them slaves for life time.

4. Those who make sexual relation with mother’s relatives, they were exiled.

5. Those who get involved in sexual relation with married women, the
punishment were saint can cut the jar.

6. No person can inherit the ancestral property that is born out of illegal sexual
relation.

Ordeal System:
• The practice to identify the guilt and innocent was found practiced during the Kirat dynasty.

• The people were highly religious, had a fear of God. In disputes the accused had to bring
evidence to prove own self innocence.

• Similarly the defense too had to bring proof.

• If in case there were no evidences or witnesses then they had to touch dubo and tama and
give an ordeal.

• In this system, it was believed that an unseen force; the God, would protect the innocent.
If they lied holding the ordeals then they were supposed to be punished by the God.

• The concept of hell and heaven too started from this dynasty. It was believed that a sinner
would go to hell and a person free from those offences would go to heaven.

Court System:
• The establishment of judicial courts can be marked as an important achievement of this
regime. The law interpretation was done by a Dharmik guru (religious priest). Kirati kings
dispensed justice through a strongly organized system of administration of justice.

• The king was not allowed to cross the boundaries set by the Mundhum, which was the
official code of conduct for regulating socio-legal, political and religious affairs of the
people. The king was under the code of conduct. For the administration of justice, Kirat
dynasty had set up four different types of courts:

1. Kuther: concerned with collection of revenue, land tax and settle land
disputes

2. Sulli: administration justice in crimes relating to panchapradh

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 3. Ligwal: looked after welfare and development affairs such as transportation,
irrigation, and drinking water etc.

4. Mapchowk: primarily a family court and thus concerned with issue relating
to marriage, divorce and property

In the Kirat or Limbu society, it is believed that the first acceptable social law was made by
Yehang mundhum that includes processes (कमयकाण्ड)of marriage, birth and death i.e. given
below:
Marriage
– There should be no marital relationship between father-daughter, mother-son and
brother-sister.

– No marriage between step brothers-sisters.

– No marriage with uncle's son or daughter.

– No marriage within father's clan.

– In mother's side, marriage is acceptable after four lineages.

– Girl from different race should be brought and married in front of the chief of the
village by a priest.

– Marriage had to be done by keeping price (dam) of the female and by the consent of the
second prestigious person by giving him Re 1/- as the tax of marriage registration.

– Rs 2/- had to be paid to the father of female as a consolation for taking his daughter away
from her family

– Rs 2/- had to be paid to be government as the marriage tax.

– If husband suspects his wife’s character, and proves it then he could divorce (Khemjong).
In the same way a wife could divorce (Namjong) by keeping the Panchavaladmi. The
divorced female could marry once again. Divorce was done by breaking Stick and Wheel
(sinko pangro garnu).

Birth
– A child born of parents not married through ritual practices can't claim on the
parental property. The maternal uncle should bear the responsibility of such
children. (The child born from the illegal relation was considered (abaid) )

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 – A mother is purified after four days of birth of a baby-boy who should be baptized
on the same day.

– Similarly, mother is to be purified on third day after the birth of a baby-girl who
should also be baptized on that particular day.

– The child born without this process of marriage was considered ‘Khosa’ but still the
marriage could be made legal by the Law of ‘Samyoklung thim’.

– Until the marriage was legalized the couple was hated and considered criminal.

– According to the law of Kwajni, the child from a divorced mother was looked after by the
maternal family but if the father wants to take the child, he could do so by the Law of
‘Samyoklung thim’.

– If the husband had given the price of wife then he was not obliged to give her any more
property. Until he had not given the price he could not claim the children.

– A child born out of illegal sexual relation was considered as a third caste (khachad) .He
/she was not allowed to touch the water of the family but later there was made the provision
of taking such child in Kirat caste and letting him to touch rice and water (bhat pani
chalaune ) of the family.

Death
– In the death of a male, he should be kept in a coffin through some rites with his face
seen.

– Such corpse should be buried in a stoned box two hands deep down the earth. Above
such grave, if it's a male, stoned four stepped monument, and if it's a female then
three steps' monument should be built. In the middle of the grave, a pole of stone
should be dug. If the carcass is of highly respected personnel, the ladder should
have 8-9 steps.

– A male's जुठो remains for 4 days whereas a female's 3 days.

– One shouldn't consume salt, oil, ginger and chilly throughout those 3 or 4 days.

– On the day of purification, the relatives and friends should come at the dead person's
house and purify his/her family.

– During purification, the priest should explain about the morbid state of the dead
body to the mass and make them sign. Finally, they all should eat with the bereaved
family. Thus, purification is completed.

– The purified family should not entertain for one year.

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LICHCHHAVI:
Lichchhavi was as ancient kingdom on the India. After the downfall of Soma dynasty they entered
Nepal from Baishali of india and ruled over Nepal (450-750 CE).The source of history of that
period are the stones or pillars of that time. The judicial system was based on hindu dharmasastra.
Efficient and effictive good governance, justice and judiciary, tax renenues, development of art,
craft and architecture, religious tolerence was the main achievement of this dynasty.

Law making process

There was clear cut hierarchy of legal rules. The law making process was fully based on Hindu
Philosophy and religious scruptures, there was no difference between law and dharma. There was
no distinction between rules of law and rules of morality and reigion.
Dharmasastra had the highest authority. Veda, smriti, sadans, or good conduct or good conscience
were regarded as the main source of law. Law making process was completely different from
today's context as in Lichchhavi laws were made on the basis of holy books and king's preference
rather than discussion on parliament as there in present day in Nepal.

Administration of justice
Administration of justice, during this period was decentralized in its true sense. In the village level
there was panchali to settle down the disputes. The king also nominated some of the members of
panchalis. The right and duties of panchali were mentioned in Tamrapatra. If panchali failed to
settle any disputes it was referred to the King's Bench named Antarashan.
There was different offices in royal palace throough which administration over local territories
were carried out. In local level there were Dware as the representative of king. Some of the
administrative and judicial power was delegated to them. They could take prompt decision in some
minor cases as per the power delegated to them by king.

Adhikaram (Courts) in Lichchhavi

Adhikaran had important role in judicial system. The main head of Adhikaran was called Adhikrit.
Some of the Adhikarans of Lichchhavi period was.
1. Purbadhikaran: It was located at the east gate of the palace which was directly concerned
with legal disputes of the public.
2. Paschimadhikaran: It was placed in the western entrance of the royal palace and its main
work was to look the cases related with the issue relating to temples and religions. It also
created good relation between public and central government.
3. Mahadhikaram/Bhattadhikaran: It looked after the people's occupation. At that time
occupation was defined according to the caste. If people are not doing the occupation as

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 defined by their caste or if anyone tries to change the occupation Mahadhikaran had right
to punish them being based in dharmasastra.
4. Kuther Adhikaran: It was related to management of lang. It looked after land disputes. It
was concerned with collection of land tax, revenues, and settle land disputes. Tax collector
was called chhatbhat who used to be from military.
5. Sulli Adhikaran: Sulli was purely a criminal court. It had original jurisdiction on the cases
related to panchakhad (5 henious crime). It had the power to investigate the case, arrest the
accused and decide the case.
6. Ligwal Adhikaran: Ligwal looked the cases related to welfare and development affairs such
as irrigation. Transportation, drinking water, etc.
7. Mapchowk Adhikaran: Mapchowk was the family court. It dealt about the cases of
marriage, divorce and property.
Crimes and punishment:
Gravity of crimes.
1. Pratham Sahas: It is the crime pf less gravity.
2. Madhyam Sahas: It has more gravity than pratham. There is less presence of physical
force as well.
3. Uttam Sahas: It was the highest gravity of crime. There is a use of physical force.
Types of punishment:
1. Wakdanda: It is the punishment given by mouth i.e. warning.
2. Dhikdanda: It is the punishment of social boycotting.
3. Artha Danda: It is related with fine and compensation.
4. Badh Danda: Death penalty or corporal punishment.

Law making process during Shah and Rana Period

Same as in Lichhavi and Malla period,religious ethics was the main source of law in this period
too. Ram Shah was famous for his administration, his code or thiti and his justice.In the then times,
there were not laws written in the Nepali language as it was not possible to reform by the traditional
Hindu law code so he framed and issued rules 26 in numbers. King Prithivi Narayan Shah the
Great, (1742-1775) spent most of this time for the unification of Nepal. Yet he could devote some
of his thoughts towards law and justice as well.Unification of Nepal by King Prithivi Narayan
Shah also helped in the systemization of judicial administration. In every district, a Kachari (court)
was set up manned by Dittha, Bichari, and Pandit. They decided cases in cooperation with Amali,
the administrator in the district. Dharmadhakari was the highest judicial functionary who either
gave his final decision or submitted usually major and important cases, before the King for the
final decision. The chief Dharmadhikari sat in the King Court at the center. King Prithivi Narayan,
not only unified the country but also made legal and judicial reforms in the country. He abolished
almost all earlier courts. He established many courts in most of the district. Besides, he established
new courts at the capital. Though, Kotlinga and Itachapli courts were continued. His system was
more or less followed until the Ranas. The laws and institutions left by King Prithivi Narayan Shah

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were by and large maintained by his royal decedents with necessary amendments and
modifications till Jung Bahadur seized power and became Prime Minister after a bloody massacre
in 1846 during the reign of King Surendrea Bikram Shah. The Kind had to delegate all his powers
to the Prime Minister Jung Bahadur who became supreme in all spheres, i.e. executive legislative
judicial and so like. He brought significant changes in the court organization in Nepal. He
composed many court of more or less quasi-judicial nature. Normally military officials were
deputed as chief of the courts. Besides, he formed Kausala(Law Commission) and later on, it was
converted into a central court. In the time of the reign of Prithvi Narayan Shah, local Panchayat
had also been given the judicial powers.What sort of the nature of the cases of that body the
Panchayat would hear, although due to lack of the historical sources we can say ascertained way.
In accordance with as mentioned by a scholar such Panchayat would hear the cases related to the
general transactions,beating,the encroachment of the boundary of the land in the supervision of the
Dware and would decide by the five elderly gentlemen.

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 LAW MAKING PROCESS AS PER THE MULUKI AIN 1910
During the Rana regime, dating from B.S. 1903 to 2007, the gradual emergence of constitutional
laws, Acts, circulars, decrees and rules become evident. Subsequent to Janga Bahadur Rana’s
United Kingdom visit, a law commission named “Kaushal” was established for the unification and
codification of relevant laws in the state. In B.S. 1910, through royal seal “Lalmohar” Muluki
Sawal or the general decree was enacted in Nepal. This code contained 5 parts containing chapters,
sections, sub-sections and tables highlighting crime and punishment provisions. The authority to
amend the code was given to the incumbent Rana Prime Minister. In order to establish new public
institutions, courts or delegate powers, Rana Prime Ministers used to issue circulars, also known
as “Sanad”. However, these ordinances did not have uniformity as regards to the structure of the
document. The circulars used to govern the executive works were known as “Istihar”. An Istihar
generally did not contain any introductory parts prevalent in other legal documents. If we take a
look at the constitutions of that era, special mention needs to be afforded to the Constitutional Act
of 2004 B.S. and Interim Governance Constitution of 2007 B.S. In B.S. 2004, in order to formulate
the Constitutional Act, Padma Shamsher established a 7 member law reform committee. In that
committee, along with Prakash Gupta, 4 expert members 53 were invited from neighbouring India
and 3 members were appointed by Padma Shamsher himself. Similarly, as regards to formulation
techniques and process, modern English and Indian legal drafting practices were implemented.
This Act contained a preamble, introduction, 6 parts, 68 sections and schedules. However, the
process involved in the formulation of the 2007 B.S. Interim Governance Constitution is unclear.
It is nevertheless known that this document was authenticated by the then King Tribhuwan Shah.
In that document, any changes to be made were undertaken through amendments. Subsequent to
the formation of Ministry of Law and Justice in 2013 B.S., the main responsibilities of formulating
laws were delegated to the Ministry. This marks the modernization and institutionalization of law
formulation process in Nepal. However, the current format, including procedures, for law
formulation is in dire need for reform.

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 Comparison between Interim constitution of Nepal2063 and
Nepal constitution 2072
Constitution of Nepal , 2072 Interim constitution of Nepal, 2063
1. Article 110(1) 1. Article 84(1)
A bill may be introduced at either A bill may be introduced in the house
House of Federal Parliament subject to by any member of the legislature
this constitution. Provided that finance parliament.
bill may be introduced in the House of
Representative only.

2. The finance bill and bills concerning

the security agencies, including the 2. Mentioned in article 84 ,sub article 2
Nepal army, Nepal police, Apf, shall of Interim constitution of Nepal , 2063
be introduced only as a government
bill.
*(Mentioned in article 110 , sub article
2 of constitution of Nepal 2072 )

3. The member who introduces the bill

may withdraw the bill with the
approval of the house. 3. Mentioned in article 86 of interim
*( Mentioned in article 112 in constitution of Nepal , 2063
constitution of Nepal , 2072 )

4. Article 113 CERTIFICATION OF

BILL 4. AUTHENTIATION OF BILL
(1) The bill which is presented to the A bill that would be passed by the
president according to article 111 house would become the act after it
for certification shall have to be
was authenticated by the president. In
authenticated by the speaker or
chairperson of the house were it case the president is not elected while
originated. Provided that, in the there occurs the necessity of
case of a finance bill, the speaker authentication of the bill, the speaker
should authenticate it as finance shall authenticate.
bill.
(2) The bill presented to the president
for certification according to this
article, shall be certified within 15
days and both the house shall be
informed about that as early as
possible.
(3) Except in the case of finance bill,
if the president is satisfied that

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 reconsideration is necessary on a
bill, the bill may sent back to the
house where it is originated with
necessary information within 15
days of receiving the bill.
(4) If the president send back a bill
with the information and if both
the houses reconsiders the bill as it
and present it again to the
president, the bill shall be certified
by the president within 15 days of
submission.
5. ARTICLE 111
POCEDURES FOR PASSAGE OF
BILLS;
(1) A Bill passed by one house of
the federal parliament shall be
transmitted to the other House
as soon as possible and such
bill, if passed by the receiving
House, shall be presented to
the president for assent. 5. Article 85
(2) A Money Bill passed by the PROCEDURE FOR PASSING BILL
House of Representative shall Any member of the parliament
be transmitted to the National intending to introduce a bill in the
Assembly. The National house should give a notice to the
Assembly shall, after secretary general at least seven days
deliberations on such Bill, send
prior to the introduction of such bill
back the Bill to the House of
Representatives within fifteen provided that an evidence notice of 5
days from the date of receipt of days shall suffice in the case of
the Bill, with suggestions, if government bill.
any. A copy of the bill should have been
(3) The House of Representative made available to every member two
shall, upon deliberations on a days prior for the presentation of the
Bill returned with suggestion
bill.
under clause (2), present the
Bill incorporating such The member introducing the bill
suggestion as it may deem may move a motion in the house that the bill
appropriate to the President for should be taken into consideration.
assent. If the motion is taken into
(4) If the National Assembly does
consideration then bill would be
not return a Money Bill
received under clause (2) for discussed in the house.
more than fifteen days, the After the conclusion of discussion
House of Representatives may the member introducing the bill would

57 | P a g e
 present the Bill to the President move on the motion that the bill be
for assent. passed.
(5) Any Bill, except for a Money
Bill, passed by the House of
Representatives and
transmitted to the National
Assembly shall be returned
with approval or suggestion
within two months from the
date of receipt. If the National
Assembly does not return the
Bill within that period, the
House of Representatives may,
by a resolution passed by a
majority of the total number of
its existing members, present
the bill to the President for
assent.
(6) If any Bill, other than a Money
Bill, passed by one House is
rejected or is passed with
amendments by the other
House, the Bill shall be
returned to the House where it
originated.
(7) If the House of
Representatives, in considering
a Bill which has been rejected
or amended and returned by
the National Assembly under
clause (6), passes it again as it
was or with amendments, by a
majority of the total number of
its existing members, the Bill
shall be presented to the
President for assent.
(8) If a Bill which has been
returned with amendments by
the House of Representatives
to the National Assembly
under clause (6) is also again
passed, with such amendments,
by a majority of the number of
existing members of the
National Assembly, the Bill

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 shall be presented to the
President for assent.
(9) The following Bills shall be
referred to a joint sitting of the
both Houses, and if the joint
sitting passes the Bill as it was
or with amendments, the
House in which the Bill
originated shall present it to the
President for assent:
(a) Bills which, though passed
by the National Assembly,
have been rejected by the
House of Representatives,
or
(b) Bills which have been
returned to the National
Assembly with
amendments by the House
of Representatives, but the
National Assembly has not
agreed on such
amendments.
(10) Even though the
session of a House is
prorogued while a Bill is under
its consideration, deliberations
on the Bill may continue at the
succeeding session.
Provided that if the House of
Representatives is dissolved or
its term expires when any Bill
introduced in the House of
Representatives is under its
consideration or when any Bill
passed by the House of
Representatives is under
consideration in the national
assembly, such bill shall lapse.
6. ARTICLE 114
PROVISION RELATING TO
ORDINANCE
(1) If, at any time, except when
both Houses of the federal
parliament are in session,

59 | P a g e
 circumstances exist which
render 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 6. ORDINANCE
of the federal parliament An ordinance is defined as an
commences or is held and authorative order.
this term means the later Ordinance: (1) If at any time, except
day on which a meeting of when the session or meeting of the
the House is held if the Legislature-Parliament is not in
Houses of the Federal recess, the President is satisfied that it
Parliament meet on is
different dates. necessary to take immediate action,
the President may, on the

60 | P a g e
 Recommendation of the Council of
Ministers, promulgate any Ordinance
as required without prejudice to the
provisions set forth in this
Constitution.
(2) Any Ordinance promulgated
would have the same force and effect
as an Act. Provided that, every such
Ordinance:
(a) shall be laid before the meeting of
the Legislature-Parliament held after
the promulgation, and if not passed by
such meeting, it shall ipso facto cease
to be effective;
(b) May be repealed at any time by
the President.

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 Colonization of South Asia and Imposition of Western law in South Asia
Forms of south East Asian laws
1. The written Texts
The written texts fall into two groups, a) the oriental law comprising the Indian-derived,
the Islamic and the Chinese derived laws, and b) occidental laws which are made up of
English, French, Dutch and Spanish-American laws.
The European-derived texts in south East Asia are made up of statutes, codes of law,
administrative regulations and the like, and follows the general western form of such
documents. On the other hand, oriental texts of south-east Asia share none of these
characteristics accepts perhaps in the Chinese-derived texts of Vietnam.
2. Law in social institutions
The complex ethnography of south East Asia provides numerous examples of rules of law
being identified in terms of social institutions. All attempt to describe law in terms of social
institutions, and all are concerned to distinguish law from other mechanisms of social
control by the use of various criteria such as sanctions, the existence of normative
propositions, reciprocity, and disputes settlement and so on. Such definition of law are not
those which European systems; whether based on codes or judicial practice, require for
general administration of law.
3. Indigenous adaptations
It represents an attempt by the governance system of South East Asia to come to grips
European Style laws.

Introduction to emergence of colonization in India:

India became a Crown colony in 1876, yet the origins of British colonialism can be traced back to
1757 when the British navy and merchants first arrived in India (Lyer, 2010). During the 1760s,
the British acquired India from Mughal emperor (Baber, 1996, p. 110). The demise of the Mughal
empire and the consolidation of British colonial power resulted from the intersection of internal
and external, historical, conjectural, and structural factors (Baber, 1996; Condos, 2016; DeSousa,
2008). Colonialism refers to “the conquest and control of other people’s lands and goods”
(Loomba, 1998, p. 2), the forceful seizure of local land and economy, and the reshuffling of non-
capitalist economies to speed up European capitalism (Loomba, 1998, p. 20). Mercantilism and
political and military control were the driving forces behind the British colonial expansion in the
Indian subcontinent (Lloyd, 2008). Britain employed the military in territorial colonialism in India
while it used maritime commercial colonialism in North America (Lloyd, 2008).
With India’s defeat on June 23, 1757, in the Battle of Plassey, the Indian subcontinent remained
colonized under the British Empire for the next two hundred years (Lyer, 2010).
With the 1784 India Act, Britain established direct involvement in India, initially through bringing
East India Company activities under the British Parliament’s direct supervision. The 1813

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Charter implemented full colonial administration and separate territorial and commercial
jurisdictions for the East India Company (Baber, 1996; Chaudhary, 2009).
The British codified laws in India in terms of the rationalization of law in the Weberian sense to
ensure “order,” “certainty,” and “uniformity” (DeSousa, 2008, p. 68), as well as Bentham’s liberal
ideas of the rule of law and equality principles (Kolsky, 2010). These laws, while giving a sense
of uniformity to the rule of law, were also used against the local populace to suppress uprisings.
The British abolished the Mughal Court and removed three-quarters of the warlord aristocracy.
They eliminated many local feudal landowners and established a British-styled bureaucracy whose
new aristocrats tended to follow a British life style. The British introduced the English language,
its underlying culture, literature, and philosophy to strengthen its power base, as well as an elite
class who were biologically Indians but culturally English.
In this presentation paper we will give our emphasis on the governance, education and laws and
police adminstration as well as legacy of colonization in India, Pakistan and Bangladesh.
The elements of the British colonial model applied by Britain to its former colonies include control
over land, divide and rule, apartheid laws, ethnocentrism, education and language, religious
suppression, native inferiority, depoliticization, and trauma and inward violence (Byrne, Clarke,
& Rahman, 2018; Rahman, Clarke, & Byrne, 2017)

Governance: public administration in Bangladesh

Bangladesh bears a colonial legacy in its entire public administration system. Present day
Bangladesh was part of the British Empire for almost two hundred years. In 1947 Pakistani rulers
replaced the British and dominated the area then known as East Pakistan until a bitter war in 1971
brought about an independent Bangladesh. A colonial imprint persists in Bangladesh especially in
political and administrative arrangements. The British tradition helped the bureaucracy to become
an essential tool of governance.
The colonial rule and the governance of Bangladesh have been analyzed as British India and
Pakistan periods.

The civil service manual embodying the rules and regulations and set-up of the Covenanted Civil
Service
(hereafter CCS) was incorporated into the Charter Act of 1793. Under the Charter Act of 1793, the
Court of
Directors enjoyed the privilege of recruiting members of the CCS, a privilege which came under
severe public
criticism after the abolition of the monopoly right of the Company in 1813 (Younis and Mostafa,
2000). This initiation so far has to be re-structured. Thus in 1886, Public Service commission was
established that was commonly known as Aitchison Commission. The present Public service
commission of India established in 1926 as per recommendation of Lee commission established
in 1924 has thus carried the legacy of colonization form of governance.

Since independence to the present day, there have been numerous changes in political leadership
and forms of government of Bangladesh.

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Structure of Bureaucracy
During the British Colonial regime, the bureaucracy condemned the role of politicians but it was
a well-established institution characterized by merit principle, elitism and strong esprit de corp
(Rahman, 2002: Zafarullah, 2007). Therefore, post independent structure of bureaucracy or civil
service was the replica of Pakistan and British Indian civil service.

Civil-military Elitism in Bureaucracy

One of the most notable legacies of British Colonial rule in Bangladesh has been the presence and
persistence of civil-military elitism in Bureaucracy. The Higher civil are inherited from the
previous bureaucratic system. Thus, colonial rule affected next generation’s governance by
pushing its rules, regulations, behavior pattern, training, etc.

Colonial education in India and its legacy in Bangladesh

Education in a country is closely related to its culture, as it provides “intergenerational knowledge
transfer” (McGregor, 2010, p. 9). Prior to the British arrival, India’s education system was small
in scale but well organized with Muslim children being schooled in madrasas and maktabs, and
Hindu children being taught in pathshalas and tols. These institutions taught children Arabic,
Persian, Sanskrit, theology, grammar, logic, law, mathematics, metaphysics, medicine, and
astrology (Chopra, Puri, & Das, 2003; Nurullah & Naik, 1943). In British India, the colonial
education policy imposed English upon the local populace, subjugated local languages, and even
created a buffer class to serve the colonists. This language subjugation is an integral component of
the colonial power’s structural and cultural violence as viewed by Galtung (1969, 1990) that still
exists and affects the Indigenous communities in the Chittagong Hill Tracts (CHT) of Bangladesh.
The dominant language (Bengali) was imposed by the state on the Indigenous people in
Bangladesh. Indigenous languages are not recognized, and the Indigenous people’s language rights
to this day are not protected despite their demands for having mother tongue education and
recognition in their schools (Partha, 2016; Yasmin, 2014). The same applies to ethnic and religious
minorities in India and Pakistan, where to this day English is the official language in a majority of
educational institutions and in the judicial system (Mahboob, 2017).

Legacy of colonialism in Bangladeshi Police

In 1856, just before the dissolution of the East India Company, the Company Court of Directors
noted that the established policing system failed to prevent crime. For this cause, the Court-
commissioned Sir Charles Napier decided to model the Indian police force after the Irish Colonial
Paramilitary Police. Thus the Police Act of 1861 came into being. The obvious power structure in
this Act is that of a ruler and subjects, where subjugation remains the priority. Modern Bangladesh
still uses Police Act 1861, Bangladesh Penal Code 1860, Code of Criminal Procedure
1898 and Evidence Act 1872 as laws of the land.

The long history of the Bangladesh Police force carries with its long-standing customs and
traditions that became a part of the distinct culture of this force. Many of these traditions are based
on colonial laws, such as the Police Act 1861 that governs the force and dictates their actions.

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Legacy of law or Judicial form of colonialism in Bangladesh

Contemporary Bangladeshi law is still largely colonial in nature as well as spirit. Under British
rule, sections 122 and 123 of the colonial Penal Code (“Offence of Sedition”) were routinely
applied to freedom fighters as well as people merely suspected of such leanings. In some respects,
Pakistan exacerbated this repressive colonial law, by criminalising speech that might criticise state
sovereignty or put public safety at risk. This law is still in force in Bangladesh. Unsurprisingly,
some more recently passed laws – such as the Information and Communication Technology Act –
similarly criminalise the act of defaming any person through cyber-technology. The approach is
reminiscent of colonial oppression.

The most important changes were made by creating a hierarchy of civil and criminal courts by
civil court Act 1887 and Code of Criminal procedure 1898(9) (Akkas, 2004, p. 77). Under Section
3 of the civil court Act 1887 created the following four classes of civil courts:
1. The court of the District judge.
2. The court of the Additional judge.
3. The court of the Subordinate judge.
4. The court of Munsif.
On the other hand, under code of criminal procedure 1898, created the following five types of
criminal courts;
1. Court of session
2. Presidency Magistrates
3. Magistrates of the First class
4. Magistrate of the Second class
5. Magistrate of the third class
Present forms of the judicial system is upon the abovementioned structure of the judicial system
in Bangladesh.
The below mentioned case and acts of British rule which the Contemporary Bangladesh
carries some legacy on its legal system:
a. Mayor of City of Lyons vs. East India Company
b. Administration of Justice from the charter of 1726 till the Regulating Act of 1773
c. Mayor’s court
d. Procedure of the Court
e. Right of Appeal

According to Bangladesh Code of 2007, there are 957 laws in Bangladesh of which 366 are
pre independenc laws and 633 have been made after the independence.

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 Criminal procedure legislation in Bangladesh is primarily derived from the Constitution of
Bangladesh (1972), the Penal Code of 1860(PC), the Code of Criminal Procedure of
1898(CrPc), and the Evidence Act of 1872.

Legacy of colonialism in Pakistan

By the end of the World War II, the British imperial government granted independence to its
Indian colony and for that matter the British Parliament enacted the Indian Independence Act,
1947. Under the Act, the British Crown relinquished its sovereign powers over India and
transferred those powers to the newly established dominions of India and Pakistan on 14 August
1947. The Government of India Act, 1935, hitherto the constitution of British India, was
amended to bring it in consonance with the aims and objectives of independence as laid down in
the 1947 Act. The combination of these two constitutional instruments served as an interim
constitutional order for both countries until their respective constituent assemblies adopted their
own constitutions.
Consider, for example, the country’s criminal law known as the Pakistan Penal Code. It was
enacted in 1860 by the British Raj, Lord Macaulay. It was earlier known as the Indian Penal
Code but was renamed after the partition in 1947. It was considered as the Code of Criminal
Procedure, the regulation which regulates the functioning of all criminal courts in Pakistan,
which was enacted in 1898.
Other laws include

– The Code of Civil Procedure, 1908

– The Income Tax Act, 1922

– The Frontier Crimes Regulation, 1901

– Companies Act, 1923

– Contract Act, 1872

– Charitable Endowment Act, 1890

– Electricity Act, 1910

– Destructive Insects and Pests Act, 1914

– Dramatic Performances Act1876

Under British rule, sections 122 and 123 of the colonial Penal Code (“Offence of Sedition”)
were routinely applied to freedom fighters as well as people merely suspected of such leanings.
In some respects, Pakistan exacerbated this repressive colonial law, by criminalising speech that
might criticise state sovereignty or put public safety at risk. However, this is still practiced in
Pakistan.

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 Imposition of colonial law in the south Asia especially in India, Pakistan and
Bangladesh
The reason almost all legal systems of the world belong to either the common or the civil law
family is that the European powers imposed their legal system on their colonies. Consequently,
“legal origin” is almost perfectly congruent with “colonial history” understood as the identity of
the dominant colonizing power. Nevertheless, the legal regime was just one of many differences
between the various colonial powers. Colonizing powers differed in their policies relating to
education, public health, infrastructure, and local governance.
- The legal origins literature focuses on the fact that French colonies inherited French civil
law, while British colonies inherited English common law.
- The focus on colonies is an important aspect of our analysis. Only former colonies received
their legal system exogenously (from their colonizer). By contrast, in the origin countries, such as
England, France, and Germany, the legal system developed endogenously. Hence in the origin
countries, legal “origin” was itself influenced by each country's economic and political structure,
and correlations between economic outcomes and legal system may reflect unobserved country
characteristics or a causal effect from economic structure to legal system, rather than the other way
around.
- Former colonies generally received their legal system from the country that colonized
them, meaning that colonial and legal origin overlap. In particular, no former British colony now
has a civil law system and no French (or other continental European) colony now has a common
law system. But it is in some aspect an exception that few ones may have mixed of both that
combine elements of civil law with elements of common law (e.g., Zweigert & Kötz 1998,
§16 V; Kim 2010)
So, in today's presentation we will be solely focusing on the legal origin in India, Pakistan and
Bangladesh and imposition of colonial legal system in the constitution of these respective
countries.
A Brief Background on Constitutional History:

By the end of World War II, the British imperial government granted independence to its Indian
colony and for that matter the British Parliament enacted the Indian Independence Act, 1947.
Under the Act, the British Crown relinquished its sovereign powers over India and transferred
those powers to the newly established dominions of India and Pakistan on 14 August 1947. The
Government of India Act, 1935, hitherto the constitution of British India, was amended to bring it
in consonance with the aims and objectives of independence as laid down in the 1947 Act. The
combination of these two constitutional instruments served as an interim constitutional order for
both countries until their respective constituent assemblies adopted their own constitutions.

Before stating what are constitutional provisions of Britain are enshrined in the constitution of
India, Pakistan and Bangladesh, it is necessary to explain the legal code made in colonial period
by Colonizer to make their legal dominance in the-then colony.

67 | P a g e
 For example: It was enacted in 1860 by the British Raj, Lord Macaulay. It was earlier known as
the Indian Penal Code but was renamed after the partition in 1947. It was considered as the Code
of Criminal Procedure, the regulation which regulates the functioning of all criminal courts in
Pakistan, which was enacted in 1898.

The Verdict
Shameful but true: Pakistan laws remain those of our British overlords
By Nadeem M Qureshi Published: December 9, 2013
10SHARES
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Formalised in 1901, FCR authorises collective punishment; the family or the entire tribe of a
suspect can be imprisoned until such time as he gives himself up. People walking on the street
can be arrested for intending to commit a crime. PHOTO: FILE

It sounds like something out of ‘Ripley’s Believe It or Not’. Pakistan, in the scheme of
things, is a young country. But the laws which govern it are old. Very old.

Consider, for example, the country’s criminal law known as the Pakistan Penal Code. It was
enacted in 1860 by the British Raj, Lord Macaulay. It was earlier known as the Indian Penal

68 | P a g e
Code but was renamed after the partition in 1947. It was considered as the Code of Criminal
Procedure, the regulation which regulates the functioning of all criminal courts in Pakistan,
which was enacted in 1898.
Other laws include

– The Code of Civil Procedure, 1908

– The Income Tax Act, 1922

– The Frontier Crimes Regulation, 1901

– Companies Act, 1923

– Contract Act, 1872

– Charitable Endowment Act, 1890

– Electricity Act, 1910

– Destructive Insects and Pests Act, 1914

– Dramatic Performances Act1876

The list goes on, and on.

The British Raj ended in 1947 when the subcontinent was partitioned, creating the new nations
of Pakistan and India. It made sense at the time for Pakistan, as it found its feet, to retain the
legal and administrative structure left by the Raj.
Today, 67 years later, the same laws remain in place. Yes, some minor modifications have been
made. These are largely superficial and related to definitions, terminology and temporal
adjustments. But, in essence, the entire legal system of Pakistan remains as the British left it.
One could argue that this is a good thing. The British were good administrators. They were, as
the saying goes, ‘people who could make the trains run on time’. The laws they left behind are
detailed, well written and comprehensive. They worked well, but there is a problem.

The British were invaders and occupiers.

Their intention was to control and subdue the locals so they could enhance their business
interests with a minimum of fuss. This was the primary objective of the legal and administrative
structure they put in place in the subcontinent. The Penal Code, for example, allowed the police
to arrest anyone more or less at will. No warrant was necessary. No proof of wrongdoing needed.

The Income Tax Act authorised a civil servant to summon any taxpayer at any time and if the
taxpayer failed to appear at the designated time, his bank accounts could be frozen and assets
appropriated. Similar blanket to unchecked authority to arrest, punish, confiscate or restrict basic
freedoms without recourse is granted by the legal system to the government.
Interestingly, UK legislation has none of these transgressions. Its driving principle is the
protection of individual rights. The fact that the British legislated in one way at home and

69 | P a g e
another in the colonies is not surprising. What is surprising is that we, in Pakistan, continue to
run our lives by an alien code.

Especially outrageous is the Frontier Crimes Regulation (FCR).

The FCR applies to the areas that are now called Federally Administered Tribal Areas (FATA),
homeland to the fiercely independent Pashtun. The British discovered early, in 1848, that they
would not be fully able to control the Pashtun. So the FCR was born, a set of laws that allowed
the Pashtun limited independence to live according to their Islamic and tribal traditions. But at
the same time it gave the British the right to intervene brutally and vindictively as needed in
FATA.
Formalised in 1901, FCR authorises collective punishment; the family or the entire tribe of a
suspect can be imprisoned until such time as he gives himself up. People walking on the street
can be arrested for intending to commit a crime. There is no right to a trial, to legal
representation, or to appeal. A government appointed ‘political agent’ is the judge, the jury and
the executioner.

IMPACT OF COLONIZATION IN THE LEGAL SYSTEM OF NEPAL

Nepalese Legal System developed over a long period of time independently on the basis of
religious scriptures like Vedas, Shrutis & Smritis of Manu, Yagyavalkya, Narada & Brihaspati.
This development of legal system ran from the period of Kirants to Shahs.
For the first time the impact of colonization on our educational system started when the then rana
prime minister junga bahadur rana came to power. During his Europe visit he realized that English
is very important inorder to communicate with outside world and thought of providing western
education to his son and established durbar school the first English medium school in history of
Nepal which was affiliated to Calcutta University. He brought teachers from England and india
and started giving education based on western curriculum. Only the royal family members were
allowed to get education over there. At the time the supreme authority of making law was on hand
of royal members. When the royal members were provided with the education based on western
curriculum they started to make such laws which were based on the west. Since that time changes
in Nepalese legal system slightly started to occur.
However Nepalese Legal System started to lose its indigeneity after the political change of 2007
B.S. After 2007 B.S. Common Law system was introduced in the legal system of our country.
Common Law System is the legal system that has its origin in England. The British Empire spread
the English legal system to its historical colonies, many of which retain the common law system
today. In the same vein Indian Legal System was made based on this very Common Law System
by the British colonizers. As a result of this the Common Law system still exists as the Legal
System of India. Now this has had a direct or indirect effect on the legal system of Nepal.
It was a confusing and strange phenomenon that when the Common law System was flourishing
in India during the East India Company's prevalence, there was indigenous legal system present in
our country but subsequently when British left India, the Common Law System was undertaken
as our legal system. Thus after the changes of 1951, Nepal shifted the basis of her legal system

70 | P a g e
from the historical model of Hindu Law to unfamiliar and untried principles of model built largely
on norms of British Law and constitutional practice.
Before moving forward we need to be clear on one thing. To strengthen their existence in India,
the British colonizers not only had changed the Legal System of India but also had institutionalized
the Education System on their favor laying the foundation for the demise of the long prevailed
Gurukuls. Here we will be dealing about the Legal Education System in particular. Western
Jurisprudence started to be taught in the Indian Law Schools replacing the religious ManuSmriti
and other different Shrutis. Now this also indirectly affected the Nepalese Legal System.
 The Interim Government of Nepal Act, 2007 was drafted with the help of Indian scholar,
professor Ram Ugra Singh of Lucknow University. Ram Ugra Singh, who was trained in
western tradition, brought not only the concept but also the rules of Indian interim
constitution to Nepal.
 The Pradhan Nyayalaya Act 2008, an Act of constitutional importance, was also influenced
by the British Indian Tradition. This Act, for the first time, introduced the doctrine of
precedent and writ system in Nepal, which can be termed as the basic features of common
law family.
 Hari Prasad Pradhan, the first chief justice of Nepal, was a person who had studied in
Kolkata. He was brought from Kolkata by BP Koirala. He was the product of Indian legal
education. Therefore he had the knowledge of Common Law System. He started to make
new rules according to Anglo- Indian model.
 In 2014, formal legal education began in Nepal. In 2016 B.S., with the establishment of
Nepal Law College affiliated to Patana University of India, British style of legal education
entered into Nepal.

The Impact of colonization can also be visibly observed through the enforcement of caste system
and untouchability in law of Nepal is presented below:
 In Hindu Varna Vyavasta, there were mainly four caste namely, Brahmin, Chhetri, Vaisya,
and Sudra, divided on the basis of work to be performed. There is no distinction of caste
as touchable or untouchable mentioned in any religious texts. The concept of
untouchability was purely related to political and social phenomenon of the society.
 Since Nepal and India shared the some similar culture, Hindu Varna Vyavasta was existing
in India too. The colonial regime perpetuated the communalism by introduction of
personified (personal laws) legal system. In India, British used the religious communality
as an instrument of dividing the population for the ultimate goal of consolidating the
application of common law system as a uniformed system of law. It largely brushed away
the native practices and theories on laws and law making processes. Their motive was to
replace the old and ancient educational system, culture and make the people think English
and foreign is good and greater than their own, they will lose their self-esteem, their native
culture and will become what British want them to be, a truly dominant nation.

71 | P a g e
  During the British colonial rule, they made laws from 1850 to 1920 on the behalf of the
state, prohibiting Dalit from being appointed in the higher position of government.
Nicholas Driks in his book ‘ Castes of Mind’ rightly mentioned that before colonial rule
caste system was related to job but colonial rulers through laws lead Sudra naming Dalits
to social boycotting. Following the same path, untouchability was adopted in Nepal.
 Though Nepal was not directly colonized but the then Rana regime was indirectly inspired
by that development in India of building a legal system with an ill motif of reinforcing
Hindu orthodox values as a system of governance. After the England visit, Jung Bahadur
Rana initiated the codification of Muluki Ain , 1854 having the caste hierarchy and
distinction as tagadhari, matuwali, xoi chito chalne and xoi chito nachalne. These were
based on cultural notion of purity and pollution.

Apart from educational and cultural impact, other ways in which our legal system was affected
are:
 Sir Ivor Jennings was invited to draft the constitution of the Kingdom of Nepal, 1959. The
jurists who worked for the preparation of these constitutional documents naturally
transplanted the norms of constitutional system they were familiar with, into newly framed
Constitution. This Constitution transplanted Westminsterial model of Government.
 The State Cases Act, 1961 separated the investigation from adjudication i.e. the
Inquisitorial system replaced Adversarial system of judiciary. Before this, investigation in
criminal cases was conducted under the supervision and control of the court.
 In 1969 a commission for Judicial Reform was formed under the chairmanship of Supreme
Court justice Bhagwati Prasad Singh. The commission recommended for the adoption of
Anglo-American system. This commission prepared the draft of evidence Bill, which
commenced as the evidence Act 2031. This Act, brought a fundamental change in the
procedure. Now the burden of proof lies in the plaintiff or prosecutor.
 The constitution of the Kingdom of Nepal, 1990 adopted Westminsterial model of
government. The right to criminal justice guaranteed by the Article 14 of the Constitution
is received from common law. The Legal Aid Act, Compensation against the Torture
Act,1997, and the State Cases Act, 1993 are more important in this regard.
 The new State Cases Act, 1993 has finished all the possibilities of reinvestigation on the
court's order. This Act models the court fully as an umpire.

The notion of eastern jurisprudence existing in Nepal was disrupted by the notion of western
jurisprudence. In 1951 we opened the door for induction of the common law system. Then we
started teaching the controversy between positive laws and morality in the name of jurisprudence.
The oriental society never allowed or felt need of contest between positive rules and morality. The
broader normative governance or regulatory system of the oriental society comprised of three
independent in existence but functionally dependent domains:

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  Sadachar
 Achar
 Byabahara

 Sadachar: They are the eternal values which are generally immutable. In other words, these
are the natural laws. Eg: Freedom of conscience
 Achar: They are the non-legal rules compiled by government in given context of society.
 Byabahara: They are legal rules which are enforced by political power of society.

Sadachar and achar provided source of legitimacy to the rules of byabahara. Sanctity of legal rules
depended on sadachara and achara. No law could be enforced against the prevailing norm
established by the domain of sadachara and achara. Rules of byabahara provided protection to the
regime of Sadachara and Achara. The oriental jurisprudence thus propagates the existence of
positive law and morality (natural law).
But this was not the matter of consideration of the jurisprudence in our law schools. Our legal and
judicial systems were thus confused and were forced to work in paradox- the common law
principles guided legal system with belief on co-existence of legal and moral rules as
complimentary to each other's effectiveness.
Whatever approaches are applied to define law, its purpose remains the same i.e. to serve the
people of the society. Hence the relationship between law and society is indispensable. So laws
must be consistent with the norms carried by people of the society. In such situation the practice
of common law system, which is an alien system of law in the context of Nepal and South Asia as
a whole, seems to be inappropriate. The legal system that had prevailed before 2007 must have
been continued making some necessary reforms but a completely foreign system was engrained
which has brought a lot of problems in our judicial administration.
The courts have become, as Dr Yubaraj Sangroula opines in his Jurisprudence, "factory to produce
judgments, not the judicial reasoning center that promotes fairness and distributive justice."
The formalism advocated by Coke (that law is an intelligent reason of legal professionals- lawyers
and judges) is accepted as a value of the law and justice in itself. This principle demands
immutability of the judgment of the court and literal interpretation of the statutory rule. The
extreme form of formalism grinds the poor people and benefits the rich and elites. It makes law
look like a mysterious thing. This has led to the mistrust of general public towards law. The courts
are overly formalistic and adopt pro-unfriendly procedures of justice. This situation prevails in
Nepal: glaring example is that of thousands of cases in judiciary that are lying pending as unheard.
And the roots of all these lies in the colonization followed by transplantation of common law.

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 Factors promoting legislative law making process
Legislature – It is a branch of government involved with making laws.
Law making process – It is an activity with the motive to create legal norms.

Factors:

 Precedent
Precedent is a decision given by Supreme Court on a matter which is later used as an
example if similar issues arises in future. In Nepal precedent is a major factor affecting the
law making.

Eg- Sunil Babu Pant Vs The Prime Minister and Council of Ministers et.al
(Supreme Court ruled that the government must enact laws to enable equal rights to protect
LGBT rights and change existing laws that are tantamount to discrimination.)

Jit Kumari Pangeni Vs Bed Pangeni and PMO

(The Supreme Court directed the Ministry of Law and Parliamentary Affairs to come up
with strong laws and policies against marital rape.)

An Indian case on how court limited the power of parliament to amend the constitution.

Kesavananda Bharati v. State of Kerala

(This was decided by a narrow majority of 7 to 6 judges. It was held by the majority that there are
certain basic features of the Constitution, which cannot be destroyed or damaged while amending
the Constitution.)

 Customs
These are habitual course of conduct regularly practiced by the people of society.
Eg- Incest marriage is strictly prohibited except for some religion or ethnic
Groups that consider it to be the part of their religion.

-Husband’s house will be the official house of the wife unless they decide to stay
somewhere else with mutual understanding.

 Religion
Most of our customs and rules emerge from the religion. Religion directly impacts the
legislative process. Society is guided by religion and since the parliamentarians are also
part of society they just can’t undermine the religion.
Eg- Prohibition on killing of cow by criminal code (chapter 27, section 289)

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  Treaties
Treaties impact the legislative law making.
Former CJ Kalyan Shrestha penned in a verdict ‘It is impossible for any state to stay aloof
from the effects and influences of globalization. A state can establish itself in the
international arena only by implementation of the commitments made by the state to
international community. Making commitments but going back on them only diminishes
the trust.’

There are two legal system on how a jurisdiction adopts international treaties, they are
monoist and dualist.
- Monoist- Automatically adopts all signed treaties as binding and as good as or even
above its municipal laws. (US, France, China)
- Dualist- State enacts separate laws and deals with IL through its own municipal laws.
(UK)
IT IS STILL NOT CLEAR THAT NEPAL IS WHETHER MONOIST OR DUALIST.
Nepal has ratified the second optional protocol thus, we have ended the system of death
penalty.

 Ideology of political party

Political parties are responsible in running the government so at sometimes their ideology
comes in play.
The concept of privatization in Nepal took shape during the decade of 2040s and NC was
in the government most of the time. Analyst’s often claim NC to be supporter of capitalism.

 Morality
Morality is a principle concerning between what is right and what is wrong. These
principles guide the law making process. Punishment on theft and robbery, verbal abuse is
based more on morality.

 Technological development
The nature of crimes and cases changes with the technological development. Legislature
has to change the laws accordingly.
In case of Nepal the Electronic Telecommunication act, 2063 had been dealing with the
cyber-crime issues but with the change of time and technological development new act was
felt necessary and Parliament is in process of making new cyber-crime act.
 Economic Condition
Economic condition of the country always comes into play while making laws.

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 Eg- The scheme of social security was felt necessary in Nepal because of our economy but
that may not be effective in other countries. Schemes and policies to end poverty is suitable
for some place while in other place with huge economy that may not be effective.

 Public opinion
Public Opinion also impacts the law making process. Need of public is highly recognized
by the parliament.
Eg- During the writing and promulgation of the constitution, 2 days public holiday was
granted and different interaction programs were organized where people were allowed to
pas their opinion on how our constitution should be.

 Education and literacy

Education and literacy of the country also seriously impact the law making.
Eg- Chaupadhi, caste based discrimination was recognized as a crime. The education and
awareness level was a main reason why this step was brought.

 Foreign laws
Foreign laws also make an impact on the Nepali law making process. Nepal has emulated
different laws from foreign countries.
Eg- Concept of secularism, federalism were more of a foreign idea then the national need
as claimed by different analysts.

 Scholar opinion
Opinion of the scholars also affects the legislative law making process.
Eg- Nepal is the first country in the world to recognize the victim of social crime as a
fundamental right. Dr. Shankar Kumar Shrestha played an important role to get that
recognized.

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 CHAPTER-6
LEGAL THEORIES
A. NATURAL SCHOOL OF THOUGHT
Natural School of Law
All these concept are brought from the research based on the societies which mightn’t be accurate.

Classical Natural School of law

This is first stage of natural school of law is classical school of law. There are
different concept regarding to the evolution of the natural school of for that this can be divide in
to the three different division:

1. Greek Period:
At first Greek is the first nation to initiate about this school of law. On that time the idea
of Natural Law was developed for the essential of human beings. The concept of Natural
law was brought because of the unstable political institution and frequent changes in law
and the government. From this some jurist thought about law as the serving but the next
group came with the concept of some immutable and universal principle which is an idea
about the “Natural Law”.
In this time there were two very famous philosopher who have contributed for the
development of Natural law.
a. Socrates (470 to 399 B.C)
Socrates tried explaining natural physical law as natural moral law. According to him,
man possess insight which helps reveal the goodness and badness of things and make
absolute and eternal moral rules. According to him, he would rather prefer to drink
poison than run away from prison.
b. Aristotle (384-322 BC)
Aristotle have elaborated the concept of natural law in brief with more effective way
in the Greek legal philosophy. As per him the man is the part of nature and which can
be understand from two ways: First: - Part of creature of god.
Second: - He possess active reason by which he can shape his will.
So from this man can discover the eternal principle of justice. The discover principle
of the justice being part of nature is “Natural Justice” which refers to the justice having
the same force everywhere. He also states that law should be reformed rather than to
be broken. So from the effective development of the natural law many other
philosopher were inspired and influenced by him. Some of them are Kant, Hegel,
Kelson and stammler.

c. Hiraclitus:

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 He state “Nature is not an object rather it is relation between basic rules and incident
which was occurred being based on the basic rule. Further he mention that, Self-
consciousness is nature, he mention that self-consciousness is developed through the
relation between human being and human nature.”
Whatever there is change the base of everything is nature. Human are the natural and
the biological, these all aren’t man made all we are is form of the nature. All the forms
which is guiding us is self-consciousness which is obtain as per the nature which isn’t
made by human but based on nature. The law based on the nature is “Natural Law”.

2. The Roman Period:

After the fullest elaboration about the natural law by Aristotle in Greek the concept of
natural school of law in Rome was brought by the roman philosopher stoic. He brought the
concept of natural with “theory of Man’s reason”. As per him, entire universe is governed
by the “reason”. Man’s reason is universal reason. Man live with reason which refers to
the lives according to nature or naturally. So, from this the concept of natural law was more
expanded with the universal nature which binds to all men.
Form this concept of natural law many jurist was influenced by this as a result the natural
was brought in practicality by republican in Rome. For that natural was divided in to three
division of law.
a. Jus Civile :
The civil law enforced by the court to regulate the relationship between the
romans. This law refers to the law only for the roman citizen.
b. Jus Gentium:
This law is also the part of the Roman law which have more scope than jus civile. This
law consist of legal validity in court. This law is consider as the foreign law for the
foreign citizen.
c. Jus Naturale:
This term refers to the law of the nature. The principle of this law is universal which
binds the every men. This law is also regarded as the base for the development of the
Jus Civile and Jus Gentium. But there is no any validity in the court.

Both Jus Gentium.and Jus Naturale were based on human nature, reason and morality.
But the difference is the validity of the court.

The Rome had made the empire on the different states where as the pure law is made
for the Jus Civile, Jus genitium is made for those people who are capture on the empire
of the state. On the violation of the law of this both law this can be registered in the
court but the concept of the jus natural is not binding by the court, which is not
enforceable.

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 3. The Christian Period:
At the roman era the natural was found in the writings of Christian fathers.
Among them St. Augustin is the one who have influenced many early fathers which last
school of pagan philosophies which is also known as Neo-Platonist. This came as the part
of spiritual unity than physical universe. During that time law was considered as will of the
god which is related to the men by Holy Scriptures. The church is also regarded as the
exponent of divine law. According to Father, Christian all laws, government and property,
were the product of sin and so human laws contrary to the law of god were to be discarded
and ignored.

Church came in the power, father are regarded as the …….of god. All the administration
of state was carried out by the church.

Eastern world:-
In the context of eastern world, the Hindu system is guided with the god
as the source of the law. Hindu sysem is regarded as the most ancient in the legal system
of world. In this culture a sense of justice pervades the whole body of law. According to
Hindu, law owes its existence to god. Law is given in shruti which is also known as vedas.
As per hindu smritikars {Narad Smiriti}: - In case of divergence between dharmashastra
, a principle based on reason has been declared to be the right one which refers to the
concept of law.

NATURAL LAW IN THE MEDIEVAL PERIOD

The period from 12th century to mid-fourteenth century is generally reckoned as the ‘medieval
age’ in the European history. This period was dominated by the doctrines which the Christian
fathers propagated for establishing the superiority of Church over the State. They used natural law
theory to propagate Christianity and to establish a new legal order and political ideology based on
morals and theology. The Christian Saints especially Ambrose, St. Augustine and Gregory
propagated a view that Divine law was superior to all other laws.

1. According to them, all laws are either Divine or human. Divine laws are based on nature while
human laws on custom. It is the divine nature of the natural law which makes it binding overruling
all other laws. Saint Augustine pointed out that divine wisdom revealed in the scriptures. The
moral precepts or Holy Scriptures were in fact the principles of natural law. According to Gierke,
the medieval period Christian theology centered around two fundamental principles, namely:

2. Unity derived from God, involving one faith, one church and one empire; and

3. The supremacy of law both, divine and man-made, as a part of unity of universe.

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Until the rise of humanism natural law, divine law and human law were bound together, all being
imposed from above by God.

The main tenets of the natural law theory of the medieval period may briefly be stated as follows:

1. The supporters of the theory believed that the institutions of slavery, property, state etc.
represented the evil desires because they are not the creation of nature, nevertheless, they are
necessary for preventing or limiting the vicious tendencies of men. The existence of State and
society is essential for the development of morals and ethical values in man. Cicero and supported
this view.

2. ‘Law’ is the greatest binding force both for those who govern and the governed. Thus the natural
law theory accepted the supremacy of law.

3. The greatest problem before the medieval legal thinkers and philosophers was the correct
interpretation of law. They believed in two facets of the human activities, namely,
(i) Worldly and
(ii) Godly.
They are radically different from one another and there arises no question of conflict or clash
between the two state i.e. ruler is supreme in the field of worldly activities whereas Pope held
supreme authority in the realm of Godly activities.

4. As to the question about the exact source of legal authority in a developed society, the majority
view was that state and law were the gift of the people who agreed to In the Middle Ages we find
the germ of theories that later became of great practical importance. In searching for a principle
by which the power of the State could be justified, writers evolved the theory of the social contract.
There were many varieties of this doctrine, but predominant medieval compromise was that the
monarch was above positive law, but was bound by natural law. This entails a complete break with
the Roman view that natural law is the immutable and universal part of civil law. To the medieval
period natural law may be the base on which positive law is built, but a tendency arises to regard
natural law as a superior body of principles by the test of which the validity of positive law is to
be judged. Thus even in this period we see the germ of the later theory of natural rights.

SAINT THOMAS (1225-1274) among the theologicians of the medieval period, the name of
Thomas Aquinas deserves a special mention. He is considered to be the representative of the
natural law theory of his age. In his view, social organization and state are natural phenomenon.
He pointed out that man can control his own destiny to a considerable extent but he is subject to
certain basic impulses such as impulse of self-preservation, reproduction of his species, bringing
up children etc. for improving his future and attainment of perfection. He defined law as “an
ordinance of reason for the common good made by him who has the care of the community and
promulgated through reason.” He maintained that, “the primary precept of law is that good should
be done and pursued and an evil be avoided”. Man’s activities are directed to ensure his survival,
continuity and perfection. He must do things to achieve them and doing anything against these
ends shall be morally wrong. St. Thomas Aquinas gave a fourfold classification of laws, namely,

(1)Law of God or external law;

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(2)Natural law which is revealed through “reason”,
(3) Divine law
(4)Human laws which we now called ‘Positive law’

Like his predecessors, St. Aquinas agreed that natural law emanate from ‘reason’ and is applied
by human beings to govern their affairs and relations. He opined that positive law should be
accepted only to the extent to which it is compatible with natural law or external law. He regarded
Church as the authority to interpret divine law. Thus his approach to natural law was empirical
because his conclusions were drawn from the study of human nature. He considered ‘reason’ as
the sole repository of social life of man. He believed in the supremacy of law because it is a means
to attain common good. He supported property rights and upheld acquisition of property by man
as he derives satisfaction from it which is helpful in maintenance of peace and order in the society.
He, however, held that use and enjoyment of property should not be confined only to the person
acquiring it but it should extend for the common benefit of all the members of the society and
asserted that “justice is to share” our own profit with others in order to preserve common equality.
Acquinas followed Aristotelian concept of justice and held that “justice is a habit” formed through
action and experience. He emphasized on distributive concept of justice and held that justice is a
virtue which one has in relationship with others. Justice lies in the perpetual and constant desire to
render to each one his right. In other words, the concept of justice carries with it, respect for the
rights of others. It is a complete virtue that produces well of the individual as well as the society.
The political object of justice is to keep individuals together according to Greek traditions. Justice
implies equality. What St. Thomas taught was what his predecessors and followers from Gratian
to Fortes cue asserted: the dignity of man under the sovereignty of God.

The 14th through the 16th centuries were a period of transition from the middle Ages to modernity.
There were new developments in the history of natural law thinking. First, in this period writers
on natural law gave greater emphasis to the rights of the individual, and in particular to the rights
to property and freedom. Second, natural law doctrines of original freedom and equality were used
to derive the legitimacy of law and government from the consent of the people, sometimes with
the implicit or explicit threat of the withdrawal of that consent in cases of abuse of power.

The theory, or at least the terminology, of natural law continued into the seventeenth century, for
example in the writings of Grotius, Locke, Cumberland and many others. During the nineteenth
and twentieth centuries it was eclipsed by other conceptions of morality, but has been revived more
recently by Germain Grisez, John Finnis and others. The moral doctrine of the Roman Catholic
Church, especially concerning sex and medical ethics, is still today often presented in terms of
natural law.

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Modern Natural Law

Until the beginning of the 19th century natural law theory was a philosophical content of just laws.
The period of Renaissance (14th- 17th century) marks a general awakening and resurgence of new
ideas in all the fields of knowledge. The Renaissance, the Reformation and the rise of the National
state marked the spiritual, social and the political revolution of the modern age. In this period the
medieval order broke down and the supremacy of the church and the emperor disappeared.
Rationalism became the creed of the age. The development in the field of commerce created new
classes in the society. Colonization caused rivalry among the states which gave birth to the concept
of nationalism. New theories were propounded on the sovereignty of the state. ‘Reason’ is the
foundation stone for thinking. It is secularized reason and not the theological reason. The natural
law theories of this classical modern era proceeded from the supposition that a ‘social contract’ is
the basis of society.
The concept of social contract is that in the beginning man lived in the natural state. They had
neither any government nor any law. There were hardship and oppression on a section of the
society. The men entered into an agreement known as ‘pactum unionis’ for the protection of their
lives and property. Thus society came into an existence where they undertook to respect each other
and live in peace. Then they entered in a second agreement known as ‘pactum subjectionis’ by
which the people, who had united together earlier undertook to obey an authority and surrendered
the whole or a part of their freedom and rights to the authority of the government. The state
guaranteed everyone of the protection of his life, property and to a certain extent liberty. Thus the
‘Government’ or ‘Sovereign’ or ‘Rule’ came into being through social contract. Important
exponents of social contract theories are Thomas Hobbes, John Locke and Jean Jacques Rousseau.
Thomas Hobbes (1588-1679)
Hobbes’ theory proceeds from the ‘social contract’. Before the ‘social contract’ man lived in a
chaotic state. According to the Hobbes, man’s life in a state of nature was one of the fear and
selfishness. The idea of self-preservation and avoiding misery and pain are inherit in man’s nature.
He too desires society. These natural inclinations induced him to enter into a contract and surrender
his freedom and power to some authority. The law of nature can be discovered by ‘reason’ which
says what a man should do and what he should not do. Man has a natural desire for security and
order. This can be achieved only by establishing a superior authority which must command
obedience. He says, “Law was brought into the world for nothing else but to limit the natural
liberty of particular men, in such a manner, as they might not hurt but assist one another and join
together against a common enemy.” His natural law becomes an instrument to perpetuate
reactionary conservatism and justify status quo in order to preserve peace and protect individuals
from perpetual conflict, chaos and war. Natural law in Hobbes impels subjects to surrender all
their rights and vest all liberties in the sovereign to preserve peace, life and prosperity of the
subjects. All law is dependent upon the sanction of the sovereign and all real law is civil law. In
short, the pactum subjectionis is described by Hobbes as the law of nature, the fountain of justice
and source of natural rights.

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Concept of property ------ Conflict---------Concept of sovereign power---------Origin of state
John Locke (1632-1704)
Locke’s theory of social contract means that authority of the state rests on the consent of the
subjects. According to Locke, the state of nature was a golden age, but the property was insecure.
It was for the purpose of protection of property that men entered into the social contract. By
property was meant life, liberty and estate. Locke says, “every man has a property in his own
person.” Since the source of value lies in a man’s labour and was described as insecure because
I. there was no established law
II. an impartial judge, and
III. the natural power to execute natural law was not always commensurate with the claim.

To remedy this flaw man entered into the social contract by which he yields to the sovereign, not
all his rights, but only the power to preserve order and enforce the law of nature. The purpose of
government and law is to uphold and protect the natural rights. So long as government fulfills their
purpose, the laws given by it are valid and binding but when it ceases to do that its laws have no
validity and the government may be overthrown. The state of nature, which precedes the social
contract, was not one of anarchy as Hobbes had imagined, but was ‘a state of liberty, not of
license.’
Locke championed a constitutionally limited sovereign and framed the doctrine of separation of
powers. The legislative power creates the rules to give effect to and protect the inalienable rights.
There is the executive power by which the law is enforced; and there is the federative power which
concerns the making of war and peace and controls the external relations of the state.
Jean Jacques Rousseau (1712-1778)
Rousseau, the French philosopher, like Hobbes and Locke enunciated the theory of natural rights
resting in ‘Du Contract Socia’ (Social Contract). According to him, ‘social contract’ is not a
historical fact but a hypothetical construction of reason. He set out to evolve a community in which
at the same time the individual would remain free from oppression. Their basis is a moral one.
Through social contract a new form of social organization- the state was formed to assure
guarantee rights, liberties, freedom and equality. According to him sovereign is not only source
but the essence of law, because sovereign acts only by means of law. The sovereign has no force
other than the legislative power. As regards Rousseau’s theory of ‘General Will’ it was the will of
the whole community. It was the general will instead of right reason which became the standard
of right, justice and equality. The general will, therefore, for all purposes, was the will of the
majority citizens to which blind obedience was to be given. The majority was accepted on the
belief that majority view is right than minority view. Government and law are both dependent upon
general will, on popular as distinct from parliamentary sovereignty, which may revoke or
overthrow them.

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Revival of Natural Law in Twentieth Century
In the 19th century the general environment was not conducive to natural law. Towards the end of
the 19th century a revival of the natural law theories took place due to many reasons. The reasons
are:
1. A reaction against the importance of ‘positive law’ was due.
2. It was realized that abstract thinking or a priori assumptions were not completely futile.
3. The non-natural theories failed to solve the problems created by the changed social
conditions.
4. The material progress and its effect on the society made the thinkers to look for some values
and standards.
5. The emergence of ideologies such as Fascism and Marxism caused development of counter
ideologies.

The return of natural law in the 20th century was not wholly in old form and fashion. The
characteristics of natural law from new approach are:
1. It is concerned with practical problems and not with abstract ideas. It is relative and not
abstract and unchangeable.
2. It is value-loaded, value-oriented and value conscious.
3. It is changing and varying and not permanent and everlasting in character.
4. It represents a revolt against the determinism of Historical school on the one hand and
artificial finality of the Analytical School on the other hand.

The point of contact of new natural law with the old natural law is that a moral idealism is its
resonant keynote. The new natural law established the belief that certain moral and ethical
ideals of justice are essentially related to law and its content and these principles are necessary
for its existence. It has been called ‘natural law with a variable content.’ Among the scholars
who have given the theories of new revival natural law are Stammler and Kohler who hold
important place among the jurisprudences.

#Natural law school is highly misinterpreted because of which that arise the issue in natural
school of law.
Rudolf Stammler (1856-1938) (The Theory of Just Law)
(The Natural law with Variable Content)
Stammler is a neo-kantian. Like Kant, he rejected the natural lawyer’s identification of positive
law with just law. He distinguished between technical legal science, which concerns a given
legal system, and theoretical legal science, which concerns rules giving effect to fundamental
principles. He thus proceeded to distinguish between the ‘concept of law’ and ‘the idea of law’,
or justice. He also separates justice from the ethical good, the former i.e. justice is concerned

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 only with external conduct, the latter i.e. the ethical good with internal conduct of the
individual. However Stammler differs from Kant’s fundamental principle of ‘Categorical
Imperative’ that a just rule must be capable of universal application.
Stammler is with the idea of society that individual conduct must harmonise. He is also with
the concept of relativism. He says that there cannot be universal rules because content of such
rules is empirically conditioned and changing with changing times and situation- what he
called ‘the natural law with a variable content’. There is not a single rule of law whose positive
content can be fixed a priori.
Stammler in his ‘The Theory of Justice’ explained the concept of law as follows:
 Order is appreciable through prescription or will. Community, or society, is the formal
unity of all conceivable individual purposes. The individual may realize his ultimate
best interests.
 Law is necessarily a priori because it is inevitably implied in the idea of cooperation.
 Law is a species of will because it is concerned with orderings of conduct, other –
regarding because it concerns a man’s relations with other new, self-authoritative
because it claims general obedience, and inviolable because of its claim to permanence.

According to him, every rule is a means to an end, so one must seek a universal method of making
just laws. A just law is the highest expression of Man’s social activity. In order to achieve justice,
a legislator has to bear in mind four principles. They are:
(A) Principles of Respect
I. The content of a person’s volition must not depend upon the arbitrary will of
another:
II. Every legal demand can only be maintained in such a way that the person obligated
may remain a fellow creature;
(B) Principles of Participation
III. A person lawfully obligated must not be arbitrarily excluded from the community:
IV. Every lawful power of decision may exclude the person affected by it from the
community only to the extent that the person may remain a fellow creature.

With the aid of these four principles Stammler set out to solve actual problems which may confront
the law courts. He says that the purpose of law is not to protect the will of one but to unify the
purposes of all. The law of nature means to him a ‘just law’ and a ‘just law’ is that which
harmonises the purposes within the framework of social life. The harmony of wills or purposes
varies according to time and place. For the knowledge of wills and purposes one must come in
actual contact of the living social world. This will enable one to judge as to what purposes deserve
legal recognition. Thus concept has been called as natural law with variable concept.

#One of the revivalof the natural law .Just is the natural and it is ended with the concept of fairness

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#Law making mechanism is universally accepted or universal, But the law which is with the
relativism.
Joseph Kohler (1849-1919)
Kohler is a neo-Hegelian. He adopted what Hegel started with, but built on the idea that law is a
process of evolution, and that law must change with time and vary with the cultures of countries.
He defines law as, “the standard of conduct which in consequence of the inner impulse that urges
men towards a reasonable form of life, emanates from the whole, and in forced upon the
individual.”
He protests against materialistic legal interpretation. He is evolutionary in outlook. The society, in
the course of evolution advances morally and culturally as well. Taking the requirements of culture
into consideration law can serve its purpose better. He says that “there is no eternal law. The law
that is suitable for one period is not so for another period, we can only strive every culture with its
corresponding system of law.” Thus, Kohler is convinced of Stammler’s Natural law with Variable
Content.
Law becomes a means to serve and advance cultural values. Since law is a reflection of culture,
and since culture is a growing variable, law is a growing and dynamic variable. There are laws
varying according to customs which in turn vary according to the innates and environmentals of
the people concerned.

A.a APPLICATION OF NATURAL SCHOOL OF LAW

Introduction to Natural Law Theories
The natural law theories has been understood to mean a variety of things to different time viz.
ideals which guide legal development and administrating a basic moral quality in law which
prevents a total separation of the “is” from the “ought”, the method of discovering perfect law, the
content of perfect law deducible by reason and conditions sine quibus non12 for the existence of
law.13 Natural law is known as “higher law” or “the law of the nature” is the oldest law as it has
been continually dominating the entire basis of the politics, law, religion and social philosophy. It
is written by the fingers of nature in the heart of mankind.14
Natural law can be defined from the ground that it is delivered from the concept of universality of
the human nature or a divine justice rather than the legislative or judicial principles of actions.
Thus, it is said to have based upon the ethics and morality that is termed to be the principles of
right or wrong. This law exists naturally and automatically granted to everyone or entitled to
everyone.

12
A condition without which it could not be, or but for….”or” without which there is nothing
13
Mahajan, V.D. “Jurisprudence and Legal Theory”, Eastern Book Company, Lalbagh, Lucknow, India, Pg. 688
14
Myneni, S.R. “Jurisprudence and Legal Theory” pg. 371

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Natural laws are indivisible in nature and anciently practiced. It is right in reason, eternal,
immutable and it is source of law itself. It is the law of morality and law of god which is not
changeable as axiomatic facts can never be altered. It believes that human beings are not equal in
learning, wealth and physical vigor but equal in the possession of the reason and love towards
nation as human beings. This law aims at building better human being and responsible citizens
which denies hierarchy and develops the welfare.

Application of Classical Natural Law:

As per the constitution of Nepal, 2072, Article- 1: Constitution as the supreme law of the land.
Since, before the natural law was considered to be the supreme law and activities inconsistent with
that of the natural laws were the acts towards destructions. Similar in the case of the constitution,
any other laws must not be inconsistent with it.
This can be related with the classical concept as; as per Aristotle, there must be the equality.
Moreover, in the hindu philosophy, there must be no biases in case of the delivery of the justice.
The concept of “१०० अपरािी उखम्कउन तर १ हनदोश नफसोश” has also followed the principle of natural
law.
Article- 2: Sovereignty in the hands of people and Article- 4: Nepal as a secular, sovereign,
unalienable, indivisible, inclusive and federal democratic socialism oriented state. The awareness
of the human is the awareness of the whole world is the principle established by the Roman law
related to natural law. And the law made by human must not be contradictory to the natural law.
For example: the autocracy in Rana regime was against the natural law as the power was
concentrated and the sovereignty was confiscated from the people and concentrated in the rulers.
But today, we the people are sovereign so, we are following the principles of natural law.
Article- 3: Nepal is a multicultural, multilingual, multi religious country. It is also related to the
respect the ones from each culture and it is also the principle of nature where everyone is equal.
Previously, Roman law considered the family having no male members to be slave so, the
development of the concept of Adoption came. From this, the concept of the equality among people
might have arisen with the due course of revolution and protests against inequality and the process
of the end of slavery took its step forward. Article- 18 of constitution of Nepal, 2072 says about
right to equality. Moreover, the end of slavery at the regime of Chandra Shamsher is the
application of the principle of natural law.
Article- 24: Right against untouchability and inequality has also been regarded as the principle of
nature as in here also the equality concept comes to play.

Through the principle of natural law in case of equality has developed the rise in the concept of
the equal right to property for both son and daughter as per article- 25 of the Constitution of Nepal,
2072.

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The development of the concept of “न्यार् नपाए गोखाय जानु ” has also been derived out of the concept
of fair justice from the classical concept of the natural justice system.

No one is allowed to destroy, sabotage or damage any religious sites or articles or objects of any
group or religion as per the Section 150 of the Muluki Criminal Code, 2074.

Article- 9 of the Constitution of Nepal, 2072 states Cow to be the national animal of the country
which has also been guided by the divinity and religious values.

Section 67 of the Muluki Civil Code, 2074 says if a man and a woman get united by a cultural
ceremony or by other forms become husband and wife. Similarly, Section 68 of Muluki Civil
Code, 2074 says that marriage is the unencroachable social bonding, etc.

Applications of Medieval Natural Law:

1. The autocracy of the church has to be ended and the country must be free and sovereign. This
is related to the Article 2 of the Constitution of Nepal, 2072
2. There must be the freedom of the people to think, express their opinion and do the works
enjoying their freedom but not encroaching upon others rights. This can be explained as per
the Article- 17 of the Constitution of Nepal, 2072 which heads right to freedom, article- 16
which means right to live with dignity and we can relate this to the fundamental rights provided
by the constitution of Nepal, 2072.

Applications of the Modern Natural Law:

Some of the theories of the Natural Law from the Modern approach are:

1. No one can point out and restrict the other from thinking and doing something. The
autonomy of a person must not be in the hands of the other person.
2. The laws must not be discriminatory.
3. If someone under the bound of the law in a society gets separated from the society in
coercion without any kinds of reason it is against the laws.
4. At the time of imparting justice, one thing must be put into consideration i.e. the laws must
be implemented in such a way that a person gets punished but an environment must be

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 created where after he/ she gets out of the imprisonment he/ she must be acceptable in the
society again and rehabilitate those people. Thus, Human Rights must be enforced.
5. The person must be given the punishment as per the crime committed.
From the above thoughts, we can say that the principles in Criminal justice system have
been developed out of the natural laws;
 Criminal liability lies in the person who commits the crime.
 Double jeopardy, etc.

Some other facts are:

1. Slavery, kamaiya, deuki, baadi prathas, sexual harassment, etc. are the practices against
the Humans existence and is against the Natural Laws.
2. The self-autonomy of a person is regarded the natural rights. For example: the contract
laws.
3. No any person is under anyone’s control, it means that this principle also focuses on the
equality of people from all the sectors or aspects like the economic, social, political,
linguistic, cultural, etc.

When we focus on the things above, we can analyze that the natural law in the modern period is
related and dealt mostly with the human rights. The activities done beyond law are also against the
Principle of Natural Law.

Along with this concept, the Directive principles of State Policies as per the part 4 of the
constitution of Nepal, 2072 is the other explanation for the purpose of knowing the Principles of
Natural Law. As the directive principles of the state are focused on the socio- economic objective
of a country which includes the all possible aspects of a country to get fulfilled. Here, the Principle
of Natural Law is applied.

We can also relate the Natural Law with that of the principle of natural justice as well. Aristotle
said that justice means not harming anyone and justice does not mean that compensating someone
after causing harm to them from any other means.

Here, principle of natural justice and the principle of natural law are two different things but we
can say that the principle of natural justice is the excerpt of the Principle of Natural Law in the
jurisprudence as it focuses on:
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  Nemo judex in causa sua: No one should be judge in his/her own case. It is the rule against
any kinds of biases. The natural law from here can be related with the concept of
independent judiciary as well.
 Audi alterum partum: Rule of fair hearing.

From these explanations we can say that the justice system, legal and judicial system that Nepal
follows is based on the ground of the Natural Law and the other systems that Nepal follows in case
of the legal systems are based on the other ideologies as well but those ideologies are also based
upon the Natural Law. Not only there laws but the other fundamental rights and duties and other
different laws have the common origin and the baseline which is the natural law.

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 POSITIVISM
I. ANALYTICAL SCHOOL
Acc. To Prof Dias the positivist movement started at the beginning of the 19th century.
Positivism has different meanings. (तलको given by Hart)
1. Laws are commands. (It signifies the orders)
2. Analysis of legal concepts is worth pursuing, distinct from sociological and historical
inquiries and critical evaluation.
3. Moral judgments cannot be established or defended by rational argument, evidence, or
proof.
4. The law as it is actually laid down has to be kept separate from the law that ought to be.
(currently associated with positivism)
Positivism flourishes best in stable social conditions. It is the intellectual reaction against
naturalism and a love of order and precision. Positivism rejects any metaphysical speculation
concerning law and studies law precisely as they are not as they ought to be.
The distinction of “is” law and “ought to be” law is the core of positivism.
Positivism argues, “Ought” + validity = “Is”, therefore ought only when satisfying conditions of
validity can be law and “ought” alone cannot be law.
The common idea that all the legal positivists have is that they analyze law as it is. They have the
common objective of helping people understand the law of the land as it is and not as it ought to
be. Therefore, the legal positivist school only aims to identify the law as it is laid down by a
superior body and not how it should have been.
Moreover, the other common theme between all the jurists of the legal positivist school was that
they kept law and moral principles on a completely separate footing. The legal positivists believed
that law had no relation to the moral principles. However, they were of the opinion that law often
reflects the morality of the people that it controls. Therefore, they said that the law does not have
to be in consonance with the principles of morality and ethics and rather law is what is laid down
by the superior body.
Depending on the weightage (importance) given to the moral principles, legal positivists can be
divided into positive positivists and negative positivists. Positive positivists such as Hart were of
the opinion that the moral principles do exist in the universe but it is not required for the law to
abide by them. Hart writes that ‘it is in no sense a necessary truth that law satisfy demands of
morality, though, in fact, they have often done so. Therefore, they do not negate the existence of
moral principles. However, Negative Positivists are those who completely negated (deny) the
existence of the principles of ethics and morality. Therefore, they did not believe in the existence
of moral principles. This includes jurists such as John Austin.
Therefore, we can clearly infer that the legal positivist school does not completely negate the
existence of moral principles and to some extent also articulates that the law may be based on the

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principles of morality and ethics. Their view is that even the moral standards attain a legal status
only through some form of official promulgation.
The school of legal positivism seeks to demarcate between laws as it is and law as it ought to be.
It does not analyze the Censorial nature of law, that is, the law as it ought to be and concentrates
on the law as it is given by a superior authority.
Two of the main jurists associated with the legal positivist school are John Austin and Jeremy
Bentham. Their main idea of law was similar but they differed in certain aspects.

Before the analytical school came into the forefront, most of the people had the concept that the
natural law is the only law that was mostly accepted, and even human-made law could not even
over the side it. The natural school was based on nature, reason, supernatural sources, justice, and
utility only. So analytical school came with the notion of analysis of positive law and to demarcate
the proper bound of law.

The natural law was based on the norms whose validity depends upon the subjective functions. So,
the analytical school adopted the empirical (from the particular to general) approach in justice
giving process and the natural law was rejected. It has been experienced that the laws in the past
were basically made for the protection and prosperity of minority feudal. Similarly, the natural law
also made to serve and justify the power of monarchs, pope etc. There could be regular interference
by those minority in the justice giving process. So, there was felt a normative pronunciation by the
state which could do away with the actions of the feudal and the popes. As a result, the analytical
school came to fill those lacunas. (Gap)
The main premise of analytical school of law is to deal with law as it exists in the present form. It
seeks to analyses the first principle of law as they actually exist in the given legal system.

JEREMY BENTHAM
Jeremy Bentham, the English jurist and philosopher, is regarded as the greatest figure in the history
of British Legal positivism. In simple terms, Bentham’s definition of law can be given as the will
of the sovereign. He was of the opinion that rules which are derived exclusively from the
commands of a sovereign authority form the law of the land. Therefore, he stated that rules which
are derived from the will of the sovereign would produce more clear as well as more certain laws
than the rules which are generated within a common law system conduct of the people to which it
applies. Therefore, the law is what is laid down by the sovereign. The people who are subject to
the law have to regulate their conduct in accordance with this will of the sovereign. Moreover,
Bentham says that the law does not have to be in consonance with the principles of ethics.
Therefore, the law is whatever is laid down by the sovereign.
Bentham defined law as; “A law may be defined as an assemblage of signs declarative of a volition
conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain
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case by certain person or class of persons, who in the case in question are supposed to be subject
to his power : such volition rusting for its accomplishment to the expectation of certain events
which it is intended such declaration should upon occasion be a means bringing to pass, and the
prospect of which it is intended should act as a motive upon whose conduct is in question.”
According to Bentham, law may be considered in eight different aspects:
Source (Law as a will of sovereign)
2. Subject (may be person or things)
3. Objects (act, situation, or forbearance)
4. Extent (Jurisdiction/ room for the application of law. It determines the area in which law is
applicable, who will be subject of law)
5. Aspect (Nature/ Law may be either directive or sanctioning. That is law may manifest either as
command or permission)
6. Force (Implementation mechanism/ motivation for obedience. Pain and pleasure, sanctions r
rewards, for the application of law)
7. Expression (Ways in which law is expressed or manifested. It can take various forms, statute,
and precedent and so on)
8. Remedial appendage Sanctions are provided by subsidiary laws. They themselves require a set
of subsidiary laws, “remedial appendage”, addressed to judges with a view of curing the evil, stop
the evil. They can be negative or positive, retributive or reformative.)

According to the Bentham, a sovereign is the highest superior body which does not owe any
obedience to any other body. It is the sovereign which claims habitual obedience from the people
living in a politically organized group. Therefore, the sovereign does not owe any allegiance to
any other body or group. It is the will of this sovereign body which is known as the law.
Bentham, however, states that the power of the sovereign is not absolute as is the view of John
Austin. Bentham is of the view that the power of the sovereign can be limited as well as divided.
Therefore, he is of the opinion that a sovereign can, by his own will, limit his own powers by
entering into agreements with certain external agencies which would put a restriction on the power
of the sovereign. Jeremy Bentham’s concept of sovereignty is not absolute in nature and can be
restricted to a certain extent.
Another important feature of law according to Bentham is that it should be backed by sanctions.
Therefore, the will of the sovereign must always be backed up by sanctions for it to become law.
Bentham talked about the positive as well as the negative side of sanctions, unlike Austin, who
only talked about the negative side of it. Bentham was of the view that rewards should be given to
the people who follow the law while punishments should be inflicted upon those who break the

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law. This was to encourage people to be law abiding and moreover, discourage them to break the
law.
Therefore, according to Bentham, the law is the will of the sovereign backed by sanctions.
Principle of Utility
Jeremy Bentham also gave his famous theory of utility. According to Bentham, any person is
governed by two masters, that is, pain and pleasure. Every man wants to increase the pleasure and
diminish the pain. Therefore, any law should be made by keeping in mind this theory of utility.
Every law should be promulgated by the sovereign in such a way that it diminishes the pain and
maximizes the pleasure of the people who would be governed by that particular law. Therefore,
every law should be measured by the yardstick of public utility, that is, how much pain is it causing
to the people and how much pleasure is the person getting from the law. Any law should aim at
maximizing pleasure and minimizing the pain of the persons whom it governs.
Along with the Principle of Utility, Jeremy Bentham proposed the codification of all the laws and
stated that the uncodified body of rules that was part of the English Law was not worthy of being
called as law.
Therefore, Jeremy Bentham played a crucial role in the development of the theory of Legal
positivism.
JOHN AUSTIN
John Austin (1790-1859) was a prominent British legal philosopher who takes the credit for
formulating the first systematic alternative to both ‘natural law theories of law’ and ‘utilitarian
approaches to law’. Austin’s theory of law is a form of analytic jurisprudence. John Austin is best
known for his work related to the development of the theory of legal positivism. Austin made
attempts to clearly separate ‘moral rules’ from what is known as the ‘positive law’.
John Austin’s this particular reading of utilitarianism has been the part of his work that received
the most attention in his own day. The primary source of moral rules, as per Austin, was the law
of God as revealed in the scriptures. Austin opined that there is a part of the law of God that is
unrevealed and must be discovered by resorting to reasoning. As it is understood clearly that God
wills the greatest happiness of all his creatures, reason brings us to the principle of utility. Austin
noted that we have to infer the laws of god which is not expressed or revealed in any manner from
the probable effects of our actions on the greatest happiness of all, or even from the tendencies of
actions of the humans which are to increase or diminish that aggregate. He believed that utility is
the index for the discovery of divine pleasure.
It has to be understood that Austin, much like Bentham, also reasoned that aggregate happiness is
served by identifying the law with sovereign will. Austin however, included moral dictates of the
scriptures in the category of ‘law’. This led him to create a subset of ‘laws properly so called’ –
which was named subsequently as ‘positive law’. This was done primarily to signify laws made
by the sovereign and its delegates.

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Austin’s Taxonomy
Austin attempted to classify all that he opined was the proper subject of jurisprudence. Adding to
the laws of political sovereign, this was inclusive of divine law, moral law, customary laws, laws
of private associations, laws of households, and also international law.
As per Austin, only some of these laws are what he called ‘laws properly so called’. While the
others are laws by analogy meaning laws only in the figurative sense, the criteria for a law to be
‘properly so called’ is that it derives from authority.
Austin believed that laws by analogy are not law per se but are positive morality. This is inclusive
of rules which are of non-obligatory nature such as rules of social etiquette, moral rules etc. It also
covers customary law, international law and constitutional law which, as per the general opinion,
are considered binding.
Laws Properly So Called and Positive Law
There exist primarily two kinds of authority in Austin’s legal universe: the authority of the
Christian scriptures and the authority of the political superior.
Divine law is understood to be that which is set by God himself for the creatures. The scriptures
are known to be the source of divine law. The political superior is the direct source of human law
properly so called which Austin termed as ‘positive law’. As per Austin, positive law was the
exclusive concern of jurisprudence whereas the law of god was primarily the subject of theology.
A further subdivision of positive law was introduced by Austin. Austin went on to distinguish laws
set directly by the political superior or what was understood to be as sovereign from the laws which
were set by private citizens in quest of their legal rights. The laws made by the ones authorized to
do so or the subordinate political superiors like ministers, judges etc. constitute as the laws set
directly by the sovereign.
Austin gave illustrations regarding what constituted to be the laws made by private citizens in
pursuance of their legal rights. One such illustration of the laws made by private citizen was of
rules made by the guardians for their wards and those rules imposed upon the slaves by the slave
owners. So, as all the legal rights happen to be founded by laws of the sovereign, the ultimate
source of these private powers remains the sovereign.
As per Austin, only those norms which have been authoritatively established by God or by
sovereign are proper laws. Laws improperly so called are generally based on opinion and not
authority.
Austin’s Positive Law
Austin defined positive law as comprising of commands of a political sovereign backed by
sanctions on the ones who disobey the commands.
There are primarily three key constituents of this concept of law:
1. Political sovereign 2. Command 3. Sanction 4. Duty

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Austin noted that a society which does not have a political sovereign does not have law in the strict
sense of positive law. Political sovereign was regarded as a necessary feature of a political society
which considers or claims itself to be independent. Austin was of the notion that where there is no
sovereign, there is no independent political society where as the vice versa is also true.
As pointed out by Austin, positive law is the result of a sovereign’s command. A command is an
imperative that creates a duty by the presence of a sanction which would follow if there is an
incidence of non-compliance. 8 Command is something which is of such importance that it can
never be distinguished from duty and sanction and they can all be considered to be varied aspects
of a single event. Where ever there exists a duty, there will also be the presence of a command;
while where there is a command, there also is a duty. The duty arises from the existence of
punishment or sanction of sorts which follow in case of non-compliance or when there is a breach
of duty.
As pointed out by Austin, the three kinds of commonly termed laws that are not imperative,
meaning, they are not laws properly so called but still they can justifiably be included within
jurisprudence are:
1. Declaratory laws – Austin, in this point, conceded that imperative rules may be enacted in the
guise of it being considered a declaration. The declaratory laws are those which do not go on to
form new duties but only clarify or provide the interpretation of existing legal relations.
2. Laws brought in order to repeal law- The process of repealing some laws may impose new
duties or they can even go on to revive some of the former laws. As per Austin, the Laws to repeal
law are not imperative commands.
3. Laws of imperfect obligation – Austin stated that laws of imperfect obligation are those laws
which do not have any sanctions attached for their breach or punishment which would follow in
case of a non-compliance. An illustration of laws falling under this category would be: the statutory
duty of the city council to keep the streets clean and tidy.
As per Austin’s definition, the laws creating rights and liberties are laws properly so called as they
are imperative in nature. They are considered as imperative as they happen to create duties that are
correlative on the part of other people to oblige to.
Austin also attempted to point out the differences between positive law and positive morality. As
per Austin, moral rules that resemble positive law make up positive morality. There are various
rules of positive morality that are co-extensive with rules of positive law. For example: rules
against killing someone, stealing, raping, assaulting.
As per Austin, whenever there is a conflict between positive law and positive morality, positive
law would prevail. Though Austin was a man who maintained that sovereign is bound to obey the
divine law, he considered it to be a moral duty, and stated that even if the sovereign ever legislated
against the divine law, it will still be the law. Austin further adds that any other view in this regard
would not only be wrong, but it would be pernicious as it could lead to anarchy.

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 DIFFERENCES BETWEEN AUSTIN AND BENTHAM
S. N AUSTIN BENTHAM
1. Austin regarded the law of God as revealed Bentham was against the idea
in the scriptures to be a primary source of that scriptures were a source
moral rules. of law; he believed that the
will of God is unknowable
2. The definition of the term sovereignty as the definition given by
provided by Austin talks about external Bentham speaks only about
aspects as well as internal aspects of internal aspect of sovereignty.
sovereignty (pain and pleasure)
3. Austin only talks about the negative aspect of . Bentham believed that as
the sanctions; as per Austin, you ought to every man wants to increase
follow the law, but if you happen to break the his pleasure and diminish pain
law, you will be punished accordingly. and thus to encourage people
to be more law abiding and
discourage people from
breaking the law there should
be the inclusion of awards as
well as punishment for people
depending upon their
behaviour.
4. Austin is opposed to this placing of limits on As per Bentham, a sovereign
sovereign’s powers and does not allow for it. by its own will, may put limits
on its sovereignty by entering
into agreements with external
agencies
5. Austin had different ideas. Austin’s As per Bentham’s ideology,
utilitarianism leads him into the belief that courts have no role to play in
judicial lawmaking is not only inevitable but legal development.
is also an unequivocal public good.
The common law, as defined by Austin, is a law made by the sovereigns through their delegates
who are the judges. Austin reasoned that judges are mere agents of the sovereign, authorized to
adjudicate disputes and to supply a rule where there exists a requirement of one. Austin has a
complaint against the judiciary not because of their act of legislating but because of their act of
legislating too cautiously. Austin, unlike Bentham, accepted the process of judicial law making
and considered it as immensely beneficial and even absolutely necessary.

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Criticism of Austin and Bentham

The view of John Austin and Jeremy Bentham that Law is the command of the sovereign backed
by sanctions had certain shortcomings and therefore, was criticized to a certain extent.
1. According to John Austin, the Sovereign is supreme and owes allegiance to nobody else.
However, the concept of International Law is a restriction on the external sovereignty of
the determinate superior. The sovereign has limited powers due to the rules, regulations
and treaties which for part of the International Law. Therefore, the idea that Sovereignty is
supreme and absolute is challenged by the concept of International Law. Moreover, the
fundamental rights given to the people restrict the powers of the sovereign and therefore,
are a challenge to the internal sovereignty of the determinate superior. The sovereign has
to exercise its powers according to the fundamental rights of the people and therefore, the
sovereign cannot breach the rights of the people while exercising its powers. Therefore,
fundamental rights also challenge the absolute character of sovereignty.
2. John Austin and Jeremy Bentham never talked about the concept of a legal system, which
is prevalent almost all over the world in the modern era. They only talked about the concept
of a sovereign and the sovereign being the source of the laws. The concept of a legal system
was never discussed.
3. Moreover, the idea of the sovereign given by both the jurists gives rise to an autocratic
regime since the sovereign is supreme and has absolute powers. Since the sovereign does
not owe any allegiance to any other person or group of persons, it has the power to act as
it wants and therefore, there are no restrictions on the powers of the sovereign. Therefore,
the concept of sovereign gave rise to the idea of autocratic regime.
4. One of the primary shortcomings of the two jurists was the fact that they regarded sanctions
as the only basis of law. They believed that the existence of law is not possible without it
being backed by sanctions. Therefore, if the will of the sovereign is not backed by
sanctions, it would not be called as law.

Hans Kelsen

 Hans was born on 1881 Austria

 He was the author of the Austrian constitution 1920, which to a large degree is still valid
today
 Came to Germany in 1930 but had to leave in 1933 after Hitler rose to power
 According to Roscoe Pound he was undoubtedly the leading jurist of the time (1943)
 He got well established in America and got recognized for his defense of democracy and his
pure theory of law
 After retiring in 1952, he went on to publish his second edition of pure theory of law (1960)

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Morality is subjective in nature, what is moral to one community or legal system may be
immoral in another. {For example, sex before marriage is thought to be immoral in some
communities (especially in Asia) while it is not in others (like America or Europe)}

There is a hierarchy of law and norms.

Note: The primary or main norm from which other norms are derived is known as Grand norm.

According to Kelsen, there is a hierarchy of laws and norms.

Laws are in action only because they are backed by a law that is above in the hierarchy.
Following the chain of law, we end up at constitution, which in itself claims that it is the
‘superior law of the land’ (no other law backing it).
Even that, Kelsen argues, is followed by the people because of the pre-supposition (or pre-
assumption) that it is valid (through our norms)
Law doesn’t command people on what to do. It only sets the rights and duties. And if a person
were to be found guilty of violating these rights and duties, that person would be punished
regardless of the context.
Without law, he claims that there would be no state.
(Because if there is no law, there would only be chaos and nothing to bind the people of the
nation)
Similarly, without state there can be no law.
(Because if there is no state, there would be no governing body that gives sanctions that enforce
the law)
Therefore, the law and the state are the same thing.

International law
The First World War had recently ended and the need of international law was seen.
Till now, we have said that the main norm (which is referred to as the Grund norm) is the one
through which other laws derived their legitimacy.

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Here, the argument breaks down because:
a. The international law now becomes the Grund norm (because in the hierarchy, international
law is superior to constitution)
b. All constitutions do not derived legitimacy from international law {constitution (and other law
derived from it) are made on the basis of the needs of the region}
c. So…is international law the Grund norm?

Pure theory of law

Law must be pure. It must not be affected/contaminated by any social-sciences for it to work
properly.
HERBERT LIONEL ADOLPHUS HART (1907) – POSITIVISM
HLA HART
 Born in 1907, UK
 Became a barrister and practiced at the chance bar from 1932 to 1940
 Philosophy teacher
 Professor of jurisprudence at oxford
 1992 died( 85 years)
 His book “ the concept of law”

“THE CONCEPT OF LAW” basically deals with:

1) How could laws be distinguished by orders backed by threats?
2) How do we distinguish between from legal rules and moral rules?
3) What exactly are rules? And how they differ from habits and customs?

Five meaning of positivism:

1) Laws are commands;
2) The analysis of legal concept is i) worth pursuing, ii) distinct from sociological and historical
enquiries, and iii) distinct from critical evaluation;
3) Decisions can be deducted logically from predetermined rules without resource to social aims,
policy or morality;
4) Moral judgement cannot be established or defended by rational argument, evidence or proof,
and;
5) The law it is actually laid down, positum has to be kept separate from the law that ought to be.

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According to Hart, “where there is law, there human conduct is made in some sense non-optional
or obligatory.”
AUSTION’S “COMMAND THEORY”
The starting point for the discussion is Hart’s dissatisfaction with john austin’s command theory:
a jurisprudential concept that holds that law is command backed by threat and is meant to be
ubiquitous in its application. Hart likens Austion;s theory to the role of a gunman in a bank and
tries to establish the difference between the gunman’s order and those made by law.( for
instance, the gunman forces us to obey but we may to feel inclined to obey him. Presumably,
obedience to the law comes with a different feeling.)
Hart identies three such important differences: content, origin and range. In terms of content, not
all laws are imperative or coercive. Some are facilitative, allowing us to create contracts and
other legal relations.
Austin believed that every legal system had to have a sovereign who creates the law (origin)
while remaining unaffected by it (range), such as the bank scene’s gunman, who is the only
source of command and who is not subject to other’s commands. Hart argues that this is an
inaccurate description of law, noting that laws may have several sources and legislators are very
often subject to the laws they create. Hart lets us know that laws are enabling and so allow
citizens to carry out athoriatative acts such as the making of wills or contracts which have legal
effect.
Austin concept of law- “law strictly so called” concists of command givenby sovereign enforced
by a sanction.
1. Command
2. Sovereign
3. Sanction
4. Habitual obedience

Criticism of Austin’s theory

1. Austin- Law is command
Every command can’t be law. There are two types of command which are enumerated
below:
i) In the fear of punish
ii) Responsibilities in society

Gunman theory order backed by threat

Command or order- being obliged

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Law- being under obligation (payment of tax)
2. Austin- Law is applicable for public but not for sovereign
If a person is sovereign of particular society, then law is made in that society are also
applicable on that particular sovereign.
Sovereign- limited
3. Austin never considers custom in the definition of law.
Hart- custom helps to develop law.
Custom- primary rules
Law- secondary rules

H.L.A. Hart’s definition- Law is a system of social rule which acquire character of
legal rule.

4. Austin- Laws which do not have sanction is not law.

Hart- Criminal law- sanction, civil law- not sanction (depend upon public).
5 Austin- sovereign command is a source of law,
But customary law and judge made law can be also source of la and can be applicable.
Two types of law by HLA Hart
1. Primary rules
Primary rules law down standards of behavior and are rules of obligation. They exist in
pre-legal state of community without legislature, courts, or officials of any kind.
According to Hart primary rules are those that impose duty upon individuals and are
binding because of practices of acceptance which people are requested to do or to abstain
from certain actions.
They primary rules suffer from three defects which are mentioned below:
1. Uncertainty- as what these rules are their scope. For in such a community, there is no
systematic procedure for solving doubts as to what rules are.
2. Static- change is accomplished only by the slow process of growth and decay.
3. Inefficient- because of the absence of authoritative arbiters of disputes.
2. Secondary rules
“The secondary rules are ancillary to and concern the primary rules in various ways, for
instance, they specify the ways in which the primary rules are ascertained, introduced,
eliminated or varied, and the mode in which their violation may be conclusively
determined. Hart describes the introduction of secondary rules as a “step from pre-legal
to legal world.”

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 II. HISTORICAL SCHOOL OF THOUGHTS

During the eighteenth century, the natural law jurists developed a system of law which was
founded on intuitive human conscience or abstract human reason. They considered natural law as
universal, permanent, unchangeable and static in nature. During the nineteenth century in England
analytical positivists constructed sovereign - made-coercive law devoid of moral and cultural
values. These two schools were not only unhistorical but rejected all laws of historical nature such
as. Customs, traditions, mores, myths etc. They ignored such evolutionary laws of community
which pass on from generation to generation. Hence a strong reaction and revolt developed against
unhistorical character of law expounded by natural law and analytical positivist thinkers. Thus the
historical school arose at the beginning of nineteenth century as a manifestation of reaction against
natural law theories. The basic source of the Historical School of Jurisprudence is the habits and
custom of people which changes according to their needs and requirement. It is also called the
continental school of Jurisprudence.

Historical jurist regard law a biological growth, an evolutionary phenomena and not as an arbitrary,
fanciful and artificial creation. They connect law with community's past traditions and myths and
define, identify and expound it as an expression of its instinctive sense of inner unity and common
consciousness reflected in the form of popular feelings, sentiments, beliefs and practices.

Reasons for the Origin of Historical School of Jurisprudence

The Historical School believe that law is made from people according to their changing needs.
Habits and customs are the main sources of the Historical School of Jurisprudence. According to
Dias, Historical school arose as a reaction against the natural law theories.

The reasons for the emergence of this school are:

 It came as a reaction to the natural school of law.

Natural school of law believes that the law is originated from some divine power. Natural law is
also called the Eternal law. It exists since the beginning of the world. It is closely associated with

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 the morality and intention of God. Indian constitution has some relevance of the natural law in its
articles.

Historical school of Jurisprudence focuses on the formation of law by people not by some divine
origin.

 It opposes the ideology of the analytical school of jurisprudence.

Analytical school of jurisprudence is also called Austinian School. It is established by John Austin.
The subject matter of Analytical school of Jurisprudence is positive law. It focuses on the origin
of law the judges, state and legislators. Historical School laid emphasis on the formation of law by
people through customs and habits, not by the judges and superior authority.

Jurists of Historical School of Jurisprudence

 Friedrich Karl Von Savigny

Savigny was born in Frankfurt in 1779. He is regarded as the founder of the Historical school on
the continent. He has published books; History of Roman Law in Middle Ages, System of Modern
Roman law. Savigny firmly believed that all law is the manifestation of common consciousness of
the people and it grows with the growth and strengthens with the strength people and dies away as
the nation loses its nationality. He traced the development of law as an evolutionary process much
before Charles Darwin gave his theory of evolution. It is for this reason; he is even said as
“Darwinian before Darwin” for his contribution to apply the evolutionary principle to the
development of legal system.

According to Savigny, the nature of any particular system of law was a reflection of the spirit of
the people who evolved it. This was later characterized as the Volksgiest.

Main features of savigny's theory:

 Law is discovered or found and cannot be made artificially invented and made.
 Law grows with the growth and strengthen with the strengths of people and finally dies
away as the nation loses its nationality.

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  Law has a national character. Law with spontaneity through internal development evolves
and changes in the same fashion and direction as society evolves. Hence the law of any
particular society is the embodiment and reflection of the spirit of the people united by
common language, custom, feeling and common past, who evolve and procreate law.
 The law is grounded in a form of popular consciousness called the Volksgeist (popular
spirit). It is codification and legislation which according to savigny, would kill the organic
growth and evolutionary process of volksgeist.

Criticism of Savigny

Savigny while advocating the role of evolution and growth in the development of law his approach
towards law was vitiated in the following manner:

1. Savigny emphasized the national character of law. While advocating national character of law he
entirely rejected the study of German law and took inspiration from Roman law.
2. It is often alleged that Savigny’s theory of law is negative. He was against codification of law
which is one of the most accepted forms of modern progressive legislation.
3. Volksgeist itself is an abstract idea as indeterminable and vague as the natural law itself.
4. The theory of Volksgeist overlooks the impact of other sources of law such as legislation,
precedent, etc in the evolution of law.
5. Savigny’s view that customs are always based on the popular consciousness is also not acceptable.
Many customs such as Slavery, bonded labor, etc originated to accomplish the selfish interest of
those who were in power.
6. He did not encourage law reform including codification of law.
7. Modern Nazism and fascism took inspiration from Savigny’s of Volksgeist. The idea of a distinct,
superior race, superior culture and higher civilization led to division of world on racial basis
leading to Second World War.
8. His theory of law and society postponed the emergence of modern sociological school because
most of the sociologists like Durkheim, Ehrlich, Kohler, Weber etc. were confounded by the spell
of Savigny’s Volksgeist which postponed the study of scientific appraisal of society in terms of its
ends and goals.
However, in the words of Vinogradoff Savigny’s Historical school represented a powerful social
doctrine which had sprung into being a Europe’s struggle against revolutionary renationalizes as

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 embodied in the French Republic and Napoleon’s Empire. Romantic in its appeal to archaic
customs and national traditions, conservative in its legal creed, the first school of historical
jurisprudence entered the lists in support of a conception of law determined by historical
antecedents, by a growth of national psychology hardly less instructive than the evolution of
language itself.

 Georg Friedrich Puchta

Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical school
of Jurisprudence. Georg Friedrich Puchta’s ideas were more logical and improved than Savigny’s
ideas. He traced the development and evolution of law from the very beginning. His ideas mainly
focused on the situation when conflict arises between general will and individual will. In the
conflict between general will and individual will, the state came into existence. And find out the
midway to resolve the conflict.

The main concept of Puchta’s ideas was that “neither the people nor the state alone can make and
formulate laws”. Both State and individual are the sources of law.

Contribution of Puchta

 Puchta gave twofold aspects of human will and origin of the state.
 Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and
made them more logical.

 Sir Henry Maine

Sir Henry Maine was a British Jurist born in 1822 in Scotland. His contribution to historical
jurisprudence is so great that he is labeled as ‘Social Darwinist’. He took his education in the
University of Cambridge. He was learned in English, Roman and Hindu laws

Maine made a comparative study of legal institutions of various communities and laid down a
theory of evolution of law. His method was a great improvement upon historical school and yielded

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fruitful results. Savigny’s views of Historical school was carried forward in England by Sir Henry
Maine.

Maine favored legislation and codification of law, unlike Savigny. Sir Henry Maine gave
importance to the legislation and parliament as a source of law and he also told custom as a good
source of law. He gave emphasis to uniqueness and codification of a law. He defines law in
individual perspective.

Process of development of law

Maine his applies his study to scientific, empirical methodology. His scope of source is
impressively broad, including Greek. English, Hindu, Roman, Irish and Biblical law. He divied
six phases of law and two types of society:

a) Static Society
b) Progressive society

Static society is running three stages of law and progressive society goes beyond static society.

1. Kingly Rule In the beginning law was made by the commands of the rules believed
to be acting under the divine inspiration, such as king makes the law under gods inspiration.
2. Crystallization Those commands are crystallized into customs where the power goes
to the hand of minority group of people.
3. Customary law in this stage the prevailing customs are changed into customary laws.
4. Codes Now law is promulgated in the form of a code, as Solons Attic code, twelve
tables and Napoleon code so on.
5. Fiction Static society does not go beyond the code but progressive society go beyond
the codes, when new problem arises in the code it is than solved by fiction.
6. Equity The concept of equality comes from the English law. Equity to remove the
rigidity of law and to remove injustice, delay and other inconvenience. Equity has come
not to destroy common law but to fulfill it and relationship between them was not one of
conflict.
7. Legislation is the most effective way of law-making. It is considered to be the most
systematic and direct method of introducing reforms through new laws. The power of the
legislature to make laws has been widely accepted by the courts and the people all over the

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 world. Legislation owns great superiority over the methods of evolution of law. It is
perhaps the only method of dealing with new complex problems in a modern state
uninhibited by restraints and limitations except as expressly provided by its fundamental
law. Maine recognized that the advance of civilization demanded an increasing use of
legislation. Codification is an advanced form of legislative development.

 Montesquieu
According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the
legal institution was Montesquieu. His work is contained in Esprit des Lois (Spirit of Laws). He
laid the foundation of the historical school in France. He made researches into the institutions and
laws of various societies and came to the conclusion that laws are the creation of the climate,
local situation, accident or imposture. He emphasized more on the external causes in the framing
of laws. He was of the view that law must change according to changing needs of the society. He
did not establish any theory or philosophy of the relation between the law and society. He
suggested that the law should answer the needs of the place and should change according to time,
place and needs of the people.

One of the best-known works of Montesquieu was his book ‘The Spirit of laws’ published in 1748.
In this book, he represents his beliefs in political Enlightenment ideas and suggests how the laws
are required to modify according to the needs of people and society. He somewhat ignored the
qualities of human nature or the race which go to make and develop the law.
 Edmund Burke (1729-1797)

British parliamentarian Burke revolted against the Natural law ideas of liberty, equality and
fraternity of the French revolutionaries. He denounced the French revolution in the name of English
custom, habit, history and religion as true guide of social action. Thus he preached that law is the
product of gradual and organic process. He advocated the importance of history, habit, religion.
Tradition as the real guide for social action.

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  Gustav von Hugo (1798-1844)

According to Hugo, law, like language and manners of people, forms itself and develops,
according to the time and circumstance. The essence of law is its acceptance, regulation, and
observance by the people.

 Hegel (1770-1831)

He can be said as the most influential and main thinker of historical movement. His philosophy of
evolution is of rational self-realization and freedom of man. His approach is more concerned with ideal
future of law than its present or past. A greater consideration is given for ethical and moral basis of
rules rather that their sanction. Law and moral are mixed together. The society may change and have
always changed, but in the adaptation of the law to changing society, the changes is law are governed
by ascertainable dialectic, the evolution of the grand idea of freedom.

Contribution of Historical School of law

 It has been responsible for the powerful development in the study of legal history.
 It has been responsible for the emphasis placed more recently upon a 'peoples' feeling of right,
against the dead letter of statute or precedent, apparent in the modern sociological and 'free law'
theories.
 It has been responsible for the mystical throb of nationalist socialist law.

BASIC TENANTS OF HISTORICAL SCHOOL

 Law is found. It cannot be made. It does not consist of an abstract set of rules imposed on society
by any political or other agency.

 Law like language grows and evolves and has deep roots in social economic and other factors. The
growth of law is thus a silent organic process and bears a clear and distinct imprint (mark made by
pressure) of the society where it develops.
 Laws cannot be universal validity nor can they be constructed on the basis of certain rational
promises or eternal promises.
 Like alien blood is rejected, the law of another society is unacceptable.

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 Legislation appears at the final stage and hence preparation of code pre-supposes generation of
jurist who cleared the ground for it.
 It views law as a legacy of the past and product of customs, traditions and beliefs prevalent in
different communities.
 It views law as a biological growth, an evolutionary phenomena and not an arbitrary, fanciful and
artificial creation.
 Law is not an abstract set of rules imposed on society but has deep roots in social and economic
factors and the attitude of its past and present members of the society.
 The essence of law is the acceptance, regulation and observance by the members of the society.
Law derives its legitimacy and authority from standards that have withstood the test of time.

Comparison with analytical school

 Both came against the natural law. Both school considered law as a scientific or factual reality
based on posterior method.
 Both of school concerned with nature of law rather than its function.
 Analytical consider law is a byproduct of state or sovereign will whereas historical considered law
prior to state or sovereign.
 Historical is silent about morality and ethical element whereas analytical school reject it.
 According to historical school customs are real living law whereas analytical does not regard
customs as law until they are approved by state or sovereign.
 Historical school talks about the primitive legal institution where as analytical school talks about
the mature legal system.
 Historical school says that law are found not made and exist even before state came to existence
and it is differently interpreted in different part of the world according to the social norms and
values and religion whereas analytical school talks about laws are command of sovereign
deliberated product of legislation. If there is no sovereign there no law, it is superior to each and
every thing.
 Law is independent of any political authority and its enforcement of sovereign, it just rests on the
social pressure behind the rules conducts which it’s enjoys. Where as in analytical school hallmark
of law is its enforcement of sovereign

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 Typically law is custom in historical school where as it is statue in analytical school.

Weakness
 This school of law says that the law is found in the society. But in modern age law is not
found rather it is made.
 This school does not talk about the precedent as the source of law.

Conclusion
Historical School of Jurisprudence describes the origin of law. This school argues that the law was
found not made. The main source of law is Kings Judgment, Customs and habits. Jurists like
Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the supporter of the
Historical School of Jurisprudence. According to Sir Henry Maine, Montesquieu was the first jurist
of Historical school. Sir Henry Maine was the jurist of English Historical School. He was more
logical and accepted the concept of Codification and legislation. Savigny was the father of
Historical school. He argued that Law is like language and have a national character. Law is not
universal. While Puchta improved the ideas of Savigny and argued that both state and people are
equally important and source of law.

Application of Historical School of law:

Ancient Nepalese laws were based on Hindu scriptures, which are Vedas in four parts, which
correspond to four faces of Lord Brahma, namely, Rik, Yajur, Sama, and Atharba. Sources of
law were Sruti, Smriti and the immemorial customs. Vedas have two branches (i) Karmakanda,
(ii) Jhana Kanda. Karmakand is the law for all general people. Jhana Kanda is the law for few to
grasp higher true knowledge. Gita teaches the aggregate duties, principles and laws, which people
are supposed to govern human life in their day to day life on Karma i.e. action. Gita is an amalgam
of ancient Dharma and the Code of Conduct for present day life. Manu mentioned that if state
became Kingless, there comes the fear and anarchy so God has created rajan i.e. King to protect
the interest of all creatures. Manusmritri Chapt. VII, Hymn 28 remarked that Danda keeps the
people under control, it protects them, and punishment remains awake when people are asleep.
Gautam comprised customs as Achara, Sadachar and Shisthachara meant good behaviour
involving an element of reasonableness, moral life and public policy. Kautalya Ko Arthashastra

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wrote the policy, duty of King, justice, courts, procedure, taxation, right of women, law of
marriage, divorce, succession, King is as mother etc. Dharma is the origination of morality and
humanity. It is the pragmatic approach of Dharma.
Many statues and legislations are copied the provisions of Dharmasastra.
Nepalese Jurisprudence emphasized on justice, equality, liberty, rights and individual freedoms.
Human philosophies are the core of preamble, fundamental rights or directive principles and
polices of our Constitution, which are the real ideologies of life in Nepalese Jurisprudence.
Historical values are highly expectable to develop the modern legislation for the modern people of
Nepal.

The historical school had been profoundly used in the law making process of Nepal. In the ancient
time the society was ruled by social norms and values which have created morality to that society.
So people used to follow Dharma as a law and Dharma or any religious epics were made according
to their social norms and values or the morality has been practiced in various societies in various
ways so that we can see now the nature of morality was different from one place to another.

The civil and criminal code of Nepal also has codified the dominant of Hindu value system. Cow
is considered as goddess and therefore killing of cow has been regarded as sin. This traditional
sentiment of Nepalese society has been codified as law in chapter 9 of Muluki Ain Chaupayako
Mahal (Chapter on Quadruped) where provision of punishment made on killing of Cow.

Kumar darji v Nepal government.

In this case Kumar Darji and his friends were criminalized for killing the cow and were imprisoned
for 12 years according the Muluki ain 2020 Chapter on Quadruped (Chaupaya ko mahal) .

The Constitution of Nepal has also recognized the traditional custom. There are various instances
like fundamental right to profess culture, not to be double jeopardized under the right regarding
Criminal Justice system.

The Article 24 of constitution has stated about the Right against untouchability and discrimination.
The punishment has been imposed if untouchability is seen in practice. The untouchability has
been decreased and various reservation and quota has been provided for the upliftment of them ,
socially politically and economically. Discrimination between different cultural groups has been
prohibited in fact there is positive discrimination.

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Article 26-Right to religion.

The part 3 of civil code 2074 talks about the family law where most of the laws are derived from
customs. Section 81 says about the Provision relating to use of surname by married woman.

Section 87 of the civil code 2074 says that the husband house will be the official house of wife.

Incest marriage has been strictly prohibited in the section 70 (1(b)) of criminal code 2074 except
some of the cultural group.

Before dowry system was highly practiced in the society which has now been criminalized in
section 174 of criminal code 2074.

The section 168 (3) of the criminal code has a provision that anyone compelling a woman to live
in the shed will have to serve three months of jail term in addition to Rs 3,000 in fine. The penalty
is even higher for those holding the public position.

Pun Devi Maharjan's case about Kumari pratha.

The court have also emphasized the prevailing custom, culture and social context in adjudicating
several cases. Just like in the case of Tara Devi Poudel v. Secretariat council of ministers, where
the issue raised was in conformation with the prevailing custom and usage, the court held that law
cannot be made ignoring the social context. Our society does not permit marriage between widow
and her brother in law.

The Nepalese legal system in order to protect and preserve the custom and usage on which certain
communities are well acquainted with have recognized and allowed marriage with in the ancestral
linage among the Gurung, Limbus, Rai etc. communities and also polyandry in certain
communities like Sherpa communities is allowed. No matter what the international standard is or
the laws of another society, these usage and customs are freely allowed to be continued.

Context- Women Property Rights

Example- MeeraKumariDhungana v. HMG, Ministry of Law, Justice and Parliamentary

Affairs

Henry Maine’s conception regarding static and progressive societies can be tested in terms of
sequence of changes in the conception of the property rights of women under Nepalese Laws. The

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present scenario of the legal framework under Nepalese Laws, property rights of daughter has been
ensured as equal as that of sons. The Amendment made in the Muluki Ain in 2058 B.S. in order to
maintain gender equality has brought substantial changes in the conception of right to parental
property of women. The Nepalese Legal System which favored patriarchy and that did not used to
consider women to any of the stakeholder upon the property slowly turned flexible and started
considering the gifts to the women as their property. Later, the conception of inherited property
was accepted but the parental property was not shared among the daughters. However, the changes
in the political system followed by Nepal’s ratification of several international treaties and
conventions regarding the elimination of gender based discriminations and human rights made it
possible that the women were entitled to equal property rights.

The customary practices in past are our International Humanitarian Law now.

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 III. SOCIOLOGICAL SCHOOL OF THOUGHTS
The Sociological School of jurisprudence considers law or legal development from the
perspective of the people in the society. It considers law as a social phenomenon and examines
law in relation to society.
Perceiving law as a social phenomenon, it posits the harmonization of law with the wishes and
aspirations of the people. In other words, it insists on the harmony between law and the interests
of the people. Therefore, if law becomes inconsistent with the people or even violates their interests
or expectation, such law is not worth it, such law is not people oriented. Sociological jurisprudence
strives to study law in terms of immediate needs and requirements of individual and other varying
social groups. The predominant those of the sociological jurisprudence is to promote socio-
economic good of society through law. Its orientation towards law is functional, pragmatic and
realistic judging law exclusively from its results, social consequences and effects upon society. It
rejects the traditional idealistic, dogmatic or logical notion of law as dysfunctional, anti-social and
a clog undermining social harmony, social justice and social equilibrium. To pound "The
sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law, for
the adjustment of principles and doctrines to the human conditions they are to govern rather than
to assumed first principles, for putting the human factor in the central place and relegating logic
to its true position as an instrument" As such sociological jurisprudence is multifaceted approach
to resolve immediate problems of the society with such tools-legal of extra-legal and techniques
which promotes harmony and balance of interest of society.15

The Sociological School of Law is a collection of academics and practitioners committed to the
study of law as a social phenomenon. In other words, sociological approach to jurisprudence is the
study of law in its social setting or as a social institution16.

Background of sociologist school of jurisprudence17

The 19th century, witnessed a shift of emphasis from the individual to society. This happened as a
result of the shocking consequences resulting from the laissez faire doctrine.
The historical school which only emphasis on Volkgeist (I) spirit of the people indicated that law
and the social environment in which it develops are the jurist of sociological school.

15
jurisprudence(legal theory),Dr. S.R. Myneni p.485
16
http://www.jstor.org/stable/1324392
17
Jurisprudence , (legal Theory), Nomita Aggrawal

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In 19th century matters like health, welfare, education etc were not the concern of the state, but
further state became more and more concerned with numerous matters encompassing almost all
aspects of human life and welfare due to adverse effect of laissez faire which implied regulation
through law, which compelled legal theory to read just itself so as to take account of social
phenomena.
It was established as a reaction against too much theorizing in law. By this time the short coming
of purely formal analyzing (as propounded by analytical jurists) was being felt.
Revolutions and social unsettlement not only upset any complacency about social stability but also
provoked anxiety about the short coming of the law. Sociological jurists wanted to overcome these
short comings. These factors contributed to the rise of sociological school.

Field of study by Sociological school of law

Effect of law and society on each other: Sociological school includes a number of approaches
made since the end of the last century which are more diverse then uniform. The main and common
field of study is the effect of law and society on each other. And this approach takes law as an
instrument of social progress which is also connected with value.
Relation between individual, State and society have been changing: Relation between
individual, State and society have been changing various theories regarding it have been given
from time to time. In the beginning society was governed by custom which had only a social
sanction but gradually society changes different revolutions and political change occurs. So,
necessity of balancing the welfare of society and individual was realized. Then there came a
thought of Sociological school of law. The importance of individual for society and of the latter
for the former was emphasized.
In modern times, tendency of socialization: There came the view that one should be considered
in the light of other. The approaches made from this point of view are called sociological
approaches. The reasons which bought about this kind of approach are many. The historical school
the philosophical movement and the comparative study of legal system all in different ways
contributed in bringing about new method.s

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Essential features of sociologist school of jurisprudent 18

The sociological approach to jurisprudence suggests that law is a social phenomenon reflecting
human needs, functioning as an organized system, and embodying within its fundamental
principles and substantive rules a society’s basic values. The appropriate methodology of jurists
who favor this approach is based on a systematic analysis of the structure, functions and values of
legal systems.

Ihering (1818–1892) was a ‘social utilitarian’ who believed that the essence of law could be
expressed by reference to its very purpose, which was social. Law existed to protect the interests
of individuals and society by balancing and coordinating interests. ‘Law is the sum of the
conditions of social life in the widest sense of that term, as secured by the power of the State
through the means of external compulsion’: Ihering (Law as a Means to an End (1873)). Interests
dictate purpose; they need to be studied if the purposes of the law are to be understood: Ihering:
the balancing of interests

• The law should attempt to achieve an equilibrium of individual and social principles and
purposes.

• The creation of unity from diversity demands an effective law which will reflect social purpose
and contribute to a partnership of individuals within society.

‘At the present as well as at any other time, the center of gravity of legal development lies not in
legislation, nor in juristic science, nor in judicial decision, but in society itself’: Ehrlich
(Fundamental Principles of the Sociology of Law (1912)). Ehrlich (1862–1922) differentiated
‘norms for decision’ (formal laws and other regulations) from ‘norms of conduct’ (self-generating
social rules). The norms of conduct are often, in contrast to the rules enforced by the State and
constitute the ‘living law’, which reflects the true values of society. A vital task for legislators,
judges and jurists is to discover the ‘living law’; this involves studying much extra-legal data when
investigating a legal problem. The province of jurisprudence must be ‘boundless’ because the facts
of the ‘living law’ are the facts of social life in its entirety

18
http://en.docsity.com/en-docs/Sociological_school_-_Lecture_-_Law_-_Prof__Singh

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Pound (1870–1964) defined an interest as: ‘a demand or desire or expectation which human beings
either individually or in groups or associations or relations, seek to satisfy, of which, therefore, the
adjustment of human relations and ordering of human behavior through the force of a politically
organized society must take account’. A principal task for legislators, judges and jurists is the
balancing of individual, public and social interests. Individual interests comprise: personality;
domestic relations; substance (interests of property, etc.).

Public interests comprise: interests of the State considered as a juristic person; interests of the State
as the guardian of social interests. Social interests comprise: general security; security of social
institutions; general morals; conservation of social resources; general progress; individual life.
Balancing of interests involves a process of reconciliation, harmonization and compromise, with
the object of eliminating friction and precluding waste in ‘human enjoyment of the goods of
existence’. Rules, principles, conceptions and standards must be referred to, and a conflict of
interests must be examined on an appropriate plane.

The recognition of new interests involves their being tested by reference to the ‘jural postulates’
of a civilized society. Such postulates are: that citizens will commit no intentional aggression
against one another; that citizens may control for beneficial purposes what they have discovered,
created and acquired; that promises will be carried out in good faith and unjust enrichment
prevented; that due care must be exercised so as not to create unreasonable risks of injury; that a
‘standard human life’ shall be assured to every citizen19

There are various juris that they give support to this school of thoughts

Rudolf von Ihering20

To Ihering, law existed to protect societal interests and individual interests. But, as would be
expected, the two interests are often at cross-purposes. When such occasion arises, law coordinates
and mediates in the social conflict between them. Law impartially mediates and resolves the
competing interests. Despite such conflict, he stressed the mutuality of both interests because, after
all, the object of the society is to secure and guarantee the satisfaction of human wants.

19
http://en.docsity.com/en-docs/Sociological_school_-_Lecture_-_Law_-_Prof__Singh
20
Harvard Law Review, Vol. 25, No. 2 (Dec., 1911), pp. 140-168

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Note that law is purpose-driven. In other words, law exists in a social setting to achieve some
social purposes.
According to him, interests determine, dictate or influence purpose. For a proper understanding of
the law, interests behind it must be thoroughly studied. The law aims at the equalization of
conflicting social interests. In effect, the law is ‘the realized partnership of the individual and
society.’ Ihering believed in the relativism of law. According to him, societal purpose and
standards will change in time and space. Therefore, the idea of the existence of purposes. Law is
the mediator, the balancer and the harmonizer. Legal institutions enable man to add to the quality
of his being “immutable natural law” as an absolute guide to social and legal activity is unrealistic.
In other words, Ihering rejects a universal law that will minister to the needs of all at all times. He
was of the view that law aims at creating unity from diversity. In his view, law aims at the good
of the society and permits individuals to realize their purposes. Law is the mediator, the balancer
and the harmonizer. Legal institutions enable man to add to the quality of his being.

Eugen Ehrlich21
Ehrlich declared that the center of gravity of legal development lies not in legislation, nor in juristic
science, nor in judicial decision, but in society itself. To him, there were two sources of law: legal
history and development, and “the living law.” Living law grows within society. It may be so
widespread to such an extent that it becomes the basis of the conduct and interaction of members
of the society even though it has not been formally proclaimed to be the law. He differentiated
between norms for decision and norms of conduct. Norms for decision are laws, rules and
regulations in the form of the Laws of the Federation of Nigeria (LFN), Statutes, Acts of the
National Assembly and judicial decisions thereon. On the other hand, norms of conduct are self-
generating social rules dependent upon no superior sanctioning authority. These are moral codes
applicable to persons as individuals or as members of social clubs. He recognized the existence of
a gap between living law and positive law. Against this background, therefore, it is the duty of
legislators and judges to recognize the reality of this gap in order to come up with legislations and
decisions that will give vent to the yearnings and aspirations of members of the society or polity.
But what if the living law is damaging to the interest of the people as a whole or to the greatest

21
Dias, R.W.M , Jurisprudence, 5th Edn.,(Delhi & U.K., Aditya Books Private Limited,
Butterworths,1994)pp. 420-436

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happiness of the greatest number? To the extent that Ehrlich did not qualify the applicability of his
theory on ‘living law’ we could take it that his theory would accommodate such legislation of
corruption into existence.
However, because we know the deleterious effects of , such proposition would be
unacceptable. Herein lies the inadequacy of Ehlich’s theory. As attractive as his theory may have
been or sounded, his failure to make allowance for exceptions, that is, situations where the living
law can or must be suppressed or undermined weakens the strength of his theory.
He further defines sociological jurisprudence means that law in a society should be made and
administered with the utmost regard to its requirements. To achieve this end, a very close study of
the social conditions of the society, in which law is to function is indispensable22.

Roscoe Pound23

Roscoe Pound – who was a dean in Harvard Law School – is known to have been the most
influential proponent of the American Sociological jurisprudence. He essentially saw law as a
social institution created and designed to satisfy human (individual and social) wants.

He agonized over the fact that traditional scholarship focused almost exclusively on the law in the
textbooks to the detriment of the law in action. Law in action refers to the law that actually reflects
the current behavior of the people. In other words, he was of the view that the society should be
the focal point of law and legal development, that the social mass must be able to influence the
law that regulates their behavior. This approach has the potential to, in the long run, eliminate
unjust laws. Essential features of the legal order were the securing and protection of various (often
competing) interests in the society. He dwelt much on interests. In his Outlines of Lectures on
Jurisprudence (1943), he defined interest as: a demand or expectation which human beings either
individually or in groups, or associations or relations, seek to satisfy, of which, therefore, the
adjustment of human relations and ordering of human behavior through the force of a politically
organized society must take account. Pound focus over that the task of law is social engineering
and further says that "For the purpose of understanding the law of today, I am content with the

22
Jurisprudence legal theory , dr.B.N. mani Tripathi
23
James A. Gardner, The Sociological Jurisprudence of Roscoe Pound (Part I), 7 Vill. L. Rev. 1
(1961)

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picture of satisfying as much of the whole body of human wants as we may with the least sacrifice.
I am content of think of law as a social institution to satisfy social wants, the claims and demands
involved in the existence of civilized society – by giving effect to as much as we may with least
sacrifice, so far as such wants may be satisfied or such claims given effect to by an ordering of
human conduct through politically organized society. For the present purpose I am content to see
in legal history the record of continually wider recognizing and satisfying of human wants or
claims or desire through social control; a more embracing and more effective securing of social
interest; a continually more complete and effective elimination of waste and precluding of friction
in human enjoyment of the good of existence- in short, a continually more efficacious social
engineering".
Note that legal protection of interest is usually expressed by conferring the status of a legal right
on it. He identified and classified interests into three groups – individual interests, public interests,
and social interests. Individual interests are ‘demands or desires involved in or regarded from the
standpoint of the individual life.’ They include personality (consisting of interests relating to an
individual’s physical
and spiritual existence, for example, physical security, health, freedom of will, privacy and
sensibilities, beliefs and opinions); domestic relations (including interests of parents and children
and the protection of marriage); and substance (comprising interests of property, succession and
testamentary disposition, freedom of industry, contract and association, that is, those claims or
demands ‘asserted by individuals in title of the individual economic existence.’
Public interests are ‘demands or desires involved in or looked at from the viewpoint of life in a
politically organized society, asserted in title of political life.’ They include the interests of the
State considered as a juristic person, that is, its integrity, freedom of action and security; and
interests of the State considered as the guardian of social interests. Lastly, social interests are those
‘wider demands or desires involved in or looked at from the Standpoint of social life in civilized
society and asserted in title of social life.’ Such social interests
Enumerated by Pound are many and they comprise as follow:-

a) General security, including claims to peace and order (against those actions likely to
Threaten the very existence of society), safety, health, security of transactions and acquisitions;

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b) Security of social institutions (domestic, religious, political and economic);

c) General morals, that is, security of social life against acts offensive to general moral
Sentiments;

d) Conservation of social resources, e.g., use and conservation of natural resources, protection and
education of dependents and defectives, protection of the economically dependent.

e) General progress, which is the assertion of the social group toward higher and more complete
development of human powers, including economic progress (freedom of property, trade,
industry), political progress (freedom of criticism), cultural progress (freedom of science,
improvement of education and aesthetic surrounding); and

f) Individual life, involving the claim or demand of each individual to live a full life according to
society’s standards.
g) Social interest in conservation of social resources which wants or demand of society that good
of existence shall not be wasted. The law as to riparian right or things of common usage and the
modern tendency to deny legal protection to abuse of right fall under it.

With this array of interests in a society, it is only a matter of course that contention, conflicts and
controversies will arise. How then does Pound expect these interests to harmoniously exist in the
society? His response is that law is really about reconciling, harmonising, or compromising these
conflicting interests either through securing them directly and immediately or through securing
certain individual interests so as to give effect to the greatest number of interests, or to the interests
that weigh most in our civilization with the least sacrifice of other interests. All he appeared to be
saying is if all the interests cannot be enforced then most of the interests should be enforced.
Alternatively, certain interests must be prioritized over others and enforced with minimal collateral
damage to other non-priority interests. Pound was of the opinion that the concern of the law is to
satisfy as many interests as possible and to resolve any conflicts amongst the categories of interests
he had identified. He used ‘social engineering’ as a metaphor. According to him, law is an

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instrument of social engineering, for balancing competing individual, public and social interests
within the society. In doing so, Pound argued that the tools of rules, principles, conceptions and
standards must be employed.
As society progresses, Pound noted that ‘new interests’ will emerge or evolve. Notice that
International human rights law has witnessed the evolution of new generational human rights in
addition to the traditional first and second generational rights. Recognition of such new interests
would be realized subsequent to their being tested by reference to ‘jural postulates’ of a civilized
society. Those postulates embody societal values. Such reference would enable legislators to
consider possible modification of values through legislative reforms. According to Pound,
pursuant to the postulates, the citizens in a civilized society are entitled to assume24.
a) That others will commit no intentional aggression upon them;
b) That they may control for beneficial purposes what they have discovered, created or acquired;
c) That promises will be carried out in good faith and that unreasonable and unjust enrichment will
be prevented as far as possible;
d) That persons engaged in a course of conduct will act with due care so as not to create
unreasonable risk of injury to others;
e) That citizens shall be entitled to assume that the burdens incident tosssss social life shall be
borne by society; and
f) That, as a minimum matter, ‘a standard human life’ shall be assured to every citizen.

Pound’s approach was for a functional approach to law. Also, his approach harmonizes with that
of the utilitarian school which propounds the greatest happiness of the greatest number of people.
All he was mostly concerned about was the need for the legal order to influence societal needs so
that the law would not appear foreign or alien to the people. He was, therefore, desirous of bridging
the gap between the law in textbooks and the law in action.
However, against the backdrop of the foregoing, he failed to tell us if the interests he identified are
exhaustive. Moreover, he has not been able to convince us about how conflicts generated by the
variety of interests can be resolved. Although he indicated that this can be done by weighing and
balancing, he failed to elaborate. When you have to weigh, then certain interests must give way.
What parameter do you use to weigh or measure? Although he expected the minimum of interests

24
http://digitalcommons.law.villanova.edu/vlr/vol7/iss1/1

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to be trampled upon, it is still the case that certain interests would be sacrificed. If he adopted the
utilitarian theory, then it means minority rights would have a raw deal.
Again, note that ‘civilization’ featured in his analysis of conflict resolution. But this should not
imply that those considered to be uncivilized cannot resolve conflicts. Note that if mediation is a
yardstick for measuring the level of civilization, then those said to be uncivilized have been
erroneously labelled. This is because in these ‘uncivilized’ societies, conflicts are mediated and
controlled by institutional mechanisms.
Pound further points out the programmer of the sociological school as

 Study of the actual social effects of legal institutions, legal precepts and legal doctrines.
 Sociological study in preparation of law making
 Study of the means of making legal precepts effective in action
 study of juridical method
 Recognition of the importance of individualized application of legal precepts –of
reasonable and just solutions of individual cases.

Leon Duguit25
Leon Duguit was a respected French jurist, dean of the law school at Bordeaux, and author of a
series of works which criticize traditional juristic opinions and ideas. The first work in which he
began to develop the basis of his doctrine was written as a response to The System of Subjective
Public Laws by the noted German jurist George Jellinek. In this and in later works Duguit criticizes
the juridical conception of the state; he also criticizes the very notion of subjective law, rejecting
it as an individualist, metaphysical construction inherited from Roman jurists and medieval
scholastics and received through the French Revolution. This construction is outdated, according
to Duguit, and is incapable of incorporating the complex and diverse relationships currently
existing between individuals and a collective group. Subjective law leads only to fruitless and
endless arguments.
Having distinguished between subjective law and the realm of jurisprudence, Duguit identifies the
only undisputed norms of objective law as those positive and negative obligations which are

25
http://www.encyclopedia.com/doc/1G2-3045000323.html

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imposed on people who belong to the same social group. Duguit follows the views of the French
sociologist Emile Durkheim and considers that norms of objective law are based on a law of social
solidarity. Social solidarity occurs when people have common needs which can be satisfied jointly,
and when people have different needs and different abilities which can be satisfied through the
exchange of mutual services.
Doctrine of Social Solidarity26
Duguit’s theory of social solidarity was based on the fact that interdependence of man is the
essence of the society. Every individual has his existence owing to his membership of the society.
Each individual cannot procure the necessities of life himself. Therefore, each in his turn has to
depend on other for his needs. The ultimate end of all human activities is to ensure the
interdependence of men. Social solidarity is the fact and it is necessary for social life. Duguit
further stated that law also serves the same end. He pointed out that law is a rule which men obey
not by virtue of any higher principle but because they have to live as members of society.
He rejected the traditional notions of rights, sovereign, state, public and private law, legal
personality as fiction and unreal because they were not based on social reality. His entire thrust
was on mutual co-operation and mutual interdependence between individuals, groups and societies
according to the principle of division of labor for the purpose of social cohesion.
Law also to serve this end: Duguit says that 'Law is rule which men possess not by virtue of
any higher principle whatever good, interest, or happiness but by virtue and perforce of facts,
because they live in the society and can live in society'.

Law to secure and serve Social Solidarity: According to Duguit, the essence of law is to
serve and secure social solidarity which is duty oriented as it expects individual to perform their
obligations as a member of the community. There is therefore, no scope for natural or private
rights. Thus Duguit stated that law consists of duty which is the basis of co-operation and rejects
the abstract concept of right which is the source of conflict. In other words, Duguit exhorts
everyone to perform his duties to the society which would help development of co-operation and
social solidarity. For Duguit, law is not a body of rights. The only real right of man in society is to

26
home.law.uiuc.edu/~pmaggs/pashukanis.htm

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do his duty. Law is essentially an objective social fact concerned with the relation between man
and man on one hand, and man and state on the other.
Theory of Justice: Duguit defines justice in terms of fulfilment of social needs and obligations.
According to him, law must seek to promote social solidarity so as to attain maximum good of the
society as a whole. State regulations should be directed towards achieving the ends of social and
economic justice for common good. He considers justice as a social reality its roots being in the
society itself and not in the will of the sovereign.

Criticisms
Rudolf Von Jhering
Jhering clearly indicates the place of law in fulfilling a clear social purpose of advancing the
interests of society. But his critics believe that he fails to clarify or determine a way in which one
can deal with conflicting purposes and interests thereby making his theory such that there will be
a heavy reliance on the concept which does not allow for a proper balancing of interests between
the individual and collective interests. To clarify, it is in fact likely that the social motions of the
levers of reward and coercion can subjugate individual interests instead of reconciling them.
Moreover to say that deeply abiding conflicts of interests can be eliminated by feelings of duty
and love seem inadequate in truly providing for mechanisms for balancing interests. Another area
of weakness of the theory may lie in the fact that while the main concern of his theory is to consider
those conditions of man and society that are independent of law, or those conditions that emerge
prior to law and that define law’s function and goals, it would be reasonable to expect an inquiry
into extra-legal sources of law in detail. However, Jhering’s subsequent inquiry confines itself to
analyzing concepts and techniques of law instead of clarifying objective conditions and purposes
that call for the application of law and define the functions which makes the theory somewhat too
limited compared to the wider scope that would be expected from a theory of this nature.

Eugen Ehrilch

Ehrlich was quite right in opposing to a purely individualistic conception of law as it prevailed at
the end of the nineteenth century, the idea of a social law and social justice.'8 the antagonism
existing toward these ideas led him into unjustified overstatement. Ehrlich does not take into
consideration the possibility of a man's leaving one association and entering another, a contingency
which may, indeed, have a great influence upon the man but certainly does not destroy his identity
as an individual. Moreover, Ehrlich fails to see that the innate creative powers of man, that
endowment which distinguishes man from animals, is rooted in supra-national humanity. As far
as legal theory is concerned, there have been doubts whether or not Ehrlich was able to capture all
aspects of modern law with his approach and questions as to the position of what Ehrlich calls

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“sociological method”. Ehrlich has been accused of a perverted “panjurism” in relation to how he
defines “social norms” which – by declaring all social norms legally relevant – exceeds an
“accurate concept of modern law”, for having been “excessively liberalist” by stating that coercive
power is not an intrinsic part of law or may even be counterproductive for the functioning of law,
and for having been not thorough enough in his analysis of state law. In order to assess how valid
these criticisms are it is necessary to clarify Ehrlich’s concepts on issues such as social control and
state law further.

Roscoe Pound
Unlike many jurisprudential theories, Pound's theories tend to appeal to the more pragmatic and
realist students of legal theories. There is the implicit and very rarely expressed criticism against
Jurisprudence as a subject – the idea that legal theories are ‘theoretical’ and therefore quite
artificial, having little bearing on reality and suggesting wholesale changes that are unrealistic.
Pound's theory on the other hand sets itself up as the opposite of a theory. It is suggesting that it
will look at the law as it is, and then addresses the issue of how it will change and grow based on
social wants, needs and demands pragmatically and relatively. However, the question remains that
if the law is the way Pound describes, then why is there a need to do such a detailed socio-legal
research to problems that will arise and be dealt with on a case by case basis, one at a time? Another
issue which may easily be picked up as a criticism could be that Pound highlights the difference
between the law in books and the law in action. Actually, Pound has only substantively paid little
detailed attention to this “living law” leaving it quite theoretical which seems to go against the
spirit of his jurisprudential approach. Ehrlich, on the other hand, was preoccupied by this issue and
went into great detail of the “living law” almost to the exclusion of all else. Perhaps, in this author's
humble opinion, the happy medium between the two authors is what needs to emerge for a proper
understanding of the issue.
Leon Dugwit
Dugwit's attempt to evaporate all ethical essence out of the law, to banish right from jurisprudence
and substitute for it, only service, cannot be said to have been either consistent or convincing. He
laid himself open to the criticism which was not wanting, that his ultra-materialism, and that in
postulating and irrefragable social law of solidarity, which he conceived as a mere existing fact,
he was really seeking to established a constant of law which other jurists called natural or natural
with variable content. In the end, he could not escape the metaphysic which he so much distrusted,
and which, as we shall see, has been the bogy of other realists.27

27
Allen, C.k; Legal Duties, p.158

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Conclusion
There seems to be little distinction provided in the discussion between the functions and the effects
of law. While one can easily argue that law and other factors can be seen as factors towards social
control, the question that can arise is whether social control is a function of law or rather the result.
In other words, in accepting that social control is a function of law, is the reader/writer looking at
the effects and using a backward reasoning process, assuming the results that emerge were the
cause of the actual reason for the law to have been made as it was.
Secondly, arguing from a Marxist or even Feminist perspective, one could take a more critical
stance of what the law is and argue that law is one of the tools used to create and secure inequality,
discrimination in conferring privileges and wealth. In line with this thinking, one may argue that
the law in fact does not necessarily function to provide an ever-growing base for the gratification
of individual wants and needs.

Application of Sociological School of Thoughts in Nepali Legal System:

1. Ihering concept

Rudolf Yon Ihering was born in 1818 A.D at Aurich in East Fries land. Jhering is popularly
known as father of modern sociological jurisprudence.

a) Law is a result of constant struggle

According to Ihering, the development of law is neither spontaneous nor peaceful. It is the result
of constant struggle. He accepted that the role of law is to harmonize conflicting interest of
individuals for the purpose of protection of the interest of society as a whole. He rejected the
philosophical view that law evolves spontaneously like language and thus he gave importance to
‘living law’ which was later developed by his disciple Eugen Ehrlich. The legal philosophy of
Ihering greatly influenced the American sociological school of jurisprudence.

b) Law to serve a social purpose

Ihering considered law as a means to an end. The ultimate end of law is social purpose and not the
individual purpose or interest. It is the duty of the state to promote social interest by avoiding a
class between the individual and social interest. He even justices coercion by the state for the
purpose of protection of social interest

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c) Law alone is not a means to control the society

Ihering made it clear that law alone was not the means to control the social organism. There are
some other conditions such as climate, topography, etc. for which law need not intervene. There
are, however, certain aspects of social life which can be regulated and controlled exclusively by
the intervention of law, such as raising of taxes and revenues.

According to Iherning “Law is a means to harmonize individual interests for the propose of
protection of the interest of the society as a whole.”
Our Country Nepal is highly influenced by the Hindu norms and values. Nepalese people worship
cow as they treat cow as incarnation of goddess Laxmi. So the constitution of Nepal 2072 has
declared Cow as a national animal and killing of cow is punishable. Chapter -27, Section 289 of
Muluki criminal code had provision against killing or beating cows or oxen. As Nepal is highly
influenced by Hinduism and large number of people follows Hindu norms and values therefore
cow being a valuable entity of Hindu traditions, protection of cow is one of the major interests of
Nepalese society.
In criminal code 2074 of Nepal, provision of punishment and sanction in each section in all
chapters is mentioned. For an example, Section 289(3) of criminal code says, “A person shall be
liable to a sentence of imprisonment for a term not exceeding 3 months, if he/she cause grievous
hurt to cows or ox or to a sentence of a fine not exceeding Rupees 50000 for any other hurts.”
And Section 289 (4) says if a person kills a cow or an ox then he/she is liable to a sentence of
imprisonment for a term not exceeding 3 years.

2. Roscoe Pound
Roscoe Pound defined law as a social phenomenon which translated into policy and meant that in
the making, interpretation and application of laws, due account should be taken of law as a social
fact. In doing this he sought to harmonize law in books with law in action. So, to achieve these
purposes of the legal order it would first be necessary to achieve the recognition of certain interests
which operate on different levels. These levels are the individual, the public and social.
Individual Interest- These include physical integrity, reputation, freedom of volition and freedom
of conscience, marriage, relations of husband and wife, parents and children and claims to
maintenance, proprietary rights, inheritance and testamentary succession and occupational
freedom
Public Interest- These are the claims or demands or desires asserted by individuals involved in or
looked from the standpoint of political life. It can also be said as the claim of the state political
organization of the society.
Social Interest- These are the claims or demands or desires of social group. These are the most
general and the preferred level on which to balance conflicting interests is necessary. They are
claims viewed in terms of social life or generalized as claims of the social group.
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Constitution of Nepal 2072, Muliki Civil code and Muliki Criminal code of 2074 are highly
influenced by these interests. They are able to safeguard all those interest. Beside this there are
many acts in Nepal which safeguard these interests. Some of them are:
 Social Security Act- 2075

 Birth Death and other personal events (Registration act)-2033

 Caste Based Discrimination and untouchability (offense and Punishment ) Act -2068

CASES
Lal Bahadur Thapa V Ministry of Local Development and Others
Writ No.2931 of Year 2054
Decided on:2056/02/18
Writ Type: Certiorari with Mandamus
FACTS
On 2054/04/10 Kathmandu Metropolitan City decided to make Nepal Bhasa as the official
language
On 2054/08/3 District Development Committee(DDC), Dhanusa decided to make Maithali
language as the official language
On 2054/08/24 Rajbiraj Municipality decided to make Maithali language as the official language
The Nepali language in the Devanagari script is the language of the nation of Nepal. The Nepali
language shall be the official language. All the languages spoken as the mother tongue in the
various parts of Nepal are the national languages of Nepal. In our present constitution article
mentions that:
6. Languages of the nation: All languages spoken as the mother tongues in Nepal are the languages
of the nation.
7. Official language: (1) The Nepali language in the Devnagari script shall be the official language
of Nepal.
(2) A State may, by a State law, determine one or more than one languages of the nation spoken
by a majority of people within the State as its official language(s), in addition to the Nepali
language.

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Nepal Government VS Prem Khadka and others ( Decision no- 9693, Joint
Bench Supreme Court)
In this case Prem Khadka and others were accused of killing Cow and eating it’s meat. Nepalese
law prohibit killing of cows and ox. In this case the accused were charged 6 years imprisonment.
We can linked this case with Ihering’s Concept.
2. Achyutprasad Kharel VS Nepal Government (Decision no- 9982, Joint Bench Supreme
court)
This case is related with the festival of eating raw blood of Yak which is very popular in the
Himalayan part of nepal. The petitioner claims that it was illegal according to the Mukuki criminal
code section 290 but the court decides that that was a custom and practiced for a long period of
time and they can perform that traditions on the ground of right to protect culture values and
traditions provided by the constitution. Concept of living law as introduced in this case.

3. EUGEN EHRLICH (1862-1920)

According to him, average citizens do not commit theft or any other crime, not because of the risk
of punishment by a court but because they think that it is the law that they live by. His book,
‘Fundamental Principles of the Sociology of Law’, summarizes like, “At the present as well as at
any other time, the center of gravity of legal development lies not in legislation, nor in juristic
science, nor in judicial decision, but in society itself.” It means that law is derived from social facts
and depends not on state authority but on social compulsion. He also explains as law and social
facts are indistinguishable, but due to the social compulsion. For example, Bartabandh nigari bihe
garnu paedaina, should not drink and smoke infront of elders, parents and relatives (unless the
culture hives such freedom), celebration of death anniversary every year, etc are living laws. Now
respect to elders and stopping our vehicles at the red traffic signal. One is not supposed to speak
against the prestige of a dead body MCC, 2074 sec – 306 (2)(b). These are wisely followed by
people, but not because it is codified, but because these values are emerged from society itself.

He also mentioned that, social relation dictates social facts proceeding one’s behavior. According
to the status of one in the family, society, his/her behavior varies.

Adding, he claimed that society is an association of associations. The earliest associations are
genetic, i.e., family groups and clans, followed by commune, state, etc. those who learned to
associate with others gained a survival advantage over those who did not.

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The Living Laws:

He drew a distinction between norms of decision (traditional laws) and norms of conduct (govern
life in society). There will always be an inevitable gap between the norms of formal law and
of actual behavior.

Examples:

 In part-2, article- 12 of the constitution states that, ‘A person who obtains the citizenship
of Nepal by descent in accordance with this Constitution may obtain a certificate of Nepal
with gender identity by the name of his/her mother or father.’ It is a formally codified law.
But in reality, if one claims for citizenship by the side of his/her mother, then the
application is rejected or asks for father’s citizenship or one claims in the court. In the same
context, Arjun Kumar Sah (Mahottari)28 and Anu Maurey (Banke)29 had to file petition in
courts. Bhola Nagarkoti and other Vs District Administration Office, 2071 B.S
 In chapter of Marriage relating provisions, of Muluki Civil Code, 2074, section 70(1) (d),
states that, both, the boy and girl must have completed the age of 20 to get married.- a
formal law. In reality, still child marriage is continued. (local bodies boycott such
marriages to save their positions but do not take any actions against it, saying its for social
welfare.)
 As per chapter on Marriage of Muluki Civil Code, 2074, sec – 81(1), states a married
woman can have the surname of her mother/ father or her husband. But it is still not wholly
accepted by the society.

The ‘Living Law’ as conceived by Ehrlich is the ‘inner order of associations’ that is the law
practiced by society as opposed to law enforced by the state. It is based on the consent of people
which they observe and follow as members of society and due to social compulsions created by
the community for their enforcement.

Ehrlich says formal laws comes or generates from social facts.

28
https://thehimalayantimes.com/kathmandu/supreme-court-nod-to-citizenship-on-basis-of-mothers-nationality/

29
http://fwld.org/news/successful-in-obtaining-citizenship-in-the-name-of-mother/

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Examples:

 Discrimination was thought to be legal in Muluki Ain, 2020, as it was practiced in the
society. In Muluki Criminal Code, 2074, Discrimination has been declared as illegal
activity. This is because of the development of the society.
 Cyber law, ‘Electronic Transition Act ‘(ETA), 2063, passed in 2004 was the need of the
society. Thus, it came into practice.
 In chapter of marriage in Muluki Civil Code, 2074, section 81 (1), says that a married
woman, can have the surname of her mother or father or her husband or both. It was
practiced in the society before being codified.
 Jit Kumari Pangeni Vs Bed Pangeni and PMO, 2063 B.S (2004 A.D)- precedent case in
the concept of marital rape. Before it, laws were not established in Nepal.

Now, there are laws or case laws which are only for the sake of its existence, but not developed
or practiced in the society.

 In 2018, Ban on Syndicate was declared. But it is still in practice. In the context, writ by
Adv. Jyoti Baniya v NG (Dno.- 9920, NKP 2074).
 Sunil Babu Pant Vs The Prime Minister and Council of Ministers et.al, 2064 B.S/ 2007-
2008 A.D. – LGBT was declared legal, but not accepted by the society.
 Suman Pant v. Home ministry and Immigration Department (Dno.- 9921, NKP 2074)-
LGBT marriage concecpt.
 As per Constitution of Nepal, 2072 part-3 article- 18(5), equal rights on parental property.
 In Muluki Criminal Code, 2074, sec- 174(1) – dowry is prohibited.

4. Leon Duguit

Leon Duguit (1859-1928) was a French jurist of the sociological jurisprudence .He was Professor
of Constitutional Law at the University of Bordeaux. He took inspiration from Durkheim, who
distinguished between two kinds of needs and aptitudes of men living in society. They are,
according to Durkheim, on the one hand common needs satisfied by men lending each other mutual
assistance and by putting together their similar aptitudes (solidarity by similitude or mechanical

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solidarity), on the other hand, men have different aptitudes and diverse needs. They are satisfied
by an exchange of services each using his own aptitudes to satisfy the needs of others. This division
of labour is, according to Durkheim, the pre-eminent fact of social cohesion (solidarity by division
of organic solidarity). His emphasis on the doctrine of social solidarity as a fact and necessity of
social life led Duguit to elaborate it further. Duguit envisages a factor of social values that finality
of human activity which consist in realizing solidarity. But that solidarity is, according to him, the
law of the social body, the law according to which the life of that body is maintained and
developed, consequently, these finalities consist in the adaptation of individuals to the maintenance
and to the development of social life.”

"Solidarity or cohesion, according to Duguit, is the principal requisite of the existence of social
life. Solidarity is nothings more or less than the fact or interdependence uniting the member of
human society, and particularly the members of a social group by reason of the community of
needs and the division of labour. Law is the instrument of social solidarity and cohesion. Because
man cannot live apart from society and society involves discipline, man cannot live apart from
discipline. Law is not a body of rights. The only real right of man in society is to do his duty. Law
is essentially an objective social fact concerned with the relations between man and the state on
the other. Law for Duguit is made by those with legislative power, the majority of society, but it
ought to embody the fundamental rule of social interdependence. The state exists for the
performance of public services not for the exercise of sovereignty. The outstanding fact of society
as it appeared to him, was the interdependence of men, an interdependence which must have
always existed but which becomes increasingly more obvious and more complex as man’s
knowledge and mastery of the physical world increases. Social interdependence is not a theory,
nor a conjecture but a fact, the all-important, never to be forgotten fact of human life. All human
activities, organizations should be directed to the end of ensuring the smoother and fuller working
of men with men "This Duguit calls the principle of social solidarity.

Duguit's entire thrust was on mutual co-operation and mutual interdependence between
individuals, groups, and societies according to the principle of division of labour for the purpose
of social cohension. Duguit's theory of social solidarity was based on the fact that interdependence
of men is the essence of society. For Duguit State was nothing but just an instrument for performing
function s which promoted social solidarity. According to him, every individual has his existence

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owing to his membership of the society. No any individual can procure the necessities of life by
himself. Therefore, each in turn has to be dependent on each other for their needs.

APPLICATIONS

> the legislation prohibits the discrimination and treatment of individuals as ' untouchables' in
public and private spheres.
> Inclusion of Dalit women in Nepal's constitution

Part-4 , Directive principles of constitution :

> The social and cultural objective of the state shall be to build a civilized and egalitarian society
by eliminating all the forms of discrimination, injustice in the ground of religion, culture, tradition,
custom and practice along with the respect of labor and to consolidate the national unity by
maintaining social cohesion, solidarity, and harmony.
> The political objective of the state shall be to establish a public welfare of governance by
establishing a just system in all aspects of the national life through the rule of law, values, and
norms of fundamental rights, human rights and gender equality, proportional inclusion,
participation and social justice, while at the same time protecting the life, equality and property,
equalities and liberties of the people, in keeping with vitality of the freedom and territorial
integrity.
> The economic objective of the state shall be to achieve a sustainable economic development,
through maximum utilization of the available resources and equal distribution of resources nation-
wide, and to develop a socialism oriented independent and prosperous economic development.
And it also should be self-reliant and progressive in order to build an exploitation free society by
abolishing economic inequality through equitable distribution.
> The state shall direct its International relations towards enhancing the dignity of nation
worldwide, also maintaining the equality and safeguarding the freedom and national interest of the
nation.

> Fundamental rights like, Right to Equality, Right against Discrimination, Right to Equity, etc

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> Giving loan at low interest to women and people returned from foreign places, low tax rate on
the property owned by woman.

> Division of Labor in society for fulfilling the needs: Interdependence in Society.

> Man Bahadur Biswokarma Case: eliminated caste-based discrimination and established a social
solidarity in society.

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 IV. REALIST SCHOOL OF THOUGHT
The realist approach is a part of the sociological approach and it is sometimes called the “left
wing of the functional school”.30 It varies from sociological school in that this school neither
studies the social effect of law nor it starts with any a prior like balance of interests or social
engineering, rather it concentrates on a scientific observation of law in its making and working.
There are mainly three reasons for the establishment of the realist school of law. Firstly, it was
established as a reaction against sociological jurists who were emphasizing the social effect of
law. Secondly, it was established to ignore the theory of interest of Ihering31 and the theory of
Social Engineering as advocated by Pound32. Thirdly, this school was established to point out the
importance of courts and importance of the judges –the human factor in the judges and the
lawyers. The advocates of the realist movement concentrates on the decisions given by law
courts. They not only study the judgments given by the judges in courts but also study the forces
which influence the judges to reaching their decisions.
There are two trends of the realist school. They are American realism and Scandinavian realism.
American realism is the product of the pragmatist and behaviorist approach to social institutions.
It is a combination of the analytical positivist and sociological approaches. It is positivist in the
sense that it regards law as it not as it ought to be. They put more emphasis on judges. To them
law is what judges decide. Scandinavian realism is a philosophical critique of the metaphysical
foundations of law. They have put forth a philosophical justification. Axel Hagerstorm is
considered the founder of the modern Scandinavian realist movement.33

Scandinavian Realists
The Scandinavian realists resemble many other modern schools in their positivist outlook
and in their desire to eliminate all metaphysics. For them law can be explained purely in term of
observable facts and the study of such facts, which is the science of law, is , therefore, a true
science like any other concerned with facts and events in the realm of causality. Thus all such
notions as the binding force or validity of law, the existence of legal rights and duties, the notion
of property and so forth are dismissed as mere fantasies of the mind with non-actual existence
other than in an imaginary metaphysical world of their own.34

30
See ,page no-652 Jurisprudence and legal theory by V.D Maharjan
31
For detail See ,page no -305 Jurisprudence(legal theory) by Nomita Agrawal
32
For detail See ,page no -309 Jurisprudence(legal theory) by Nomita Agrawal

33
See,page no-321, Jurisprudence(legal theory) by Nomita Agrawal

34
See,page no-320 Jurisprudence(legal theory) by Nomita Agrawal

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 While the American realists were law practicing lawyers or law teachers who sought to
approximate legal theory to legal practice, the Scandinavian jurists approached their task on a
more abstract plane and with the tanning of philosophers. The Scandinavian realism has been
described as “metaphysic- sceptical”.It is essentially a philosophical critique of the metaphysical
foundation of law.35
Scandinavian realists have played a vital role in the rejection of natural school law philosophy
and of any absolute ideas of justice as controlling and directing any positive system of law. They
deny that rulers of legal conduct can de compellingly deduced from immutable and inalienable
principles of justice. They point out that certainty of law is myth. Since society is changing law
must change with it. It emphasizes on law as a means to social end. It stimulated empirical study
and laid focus on the role of judges and helped towards linearization of judges. The realist
movement in Scandinavian looks to Hagerstrom as its spiritual father, but its important
exponents are Olivecrona, Ross and Lundstedt.
According to Olivecrona, “law is a description and an analysis of the facts is all that
will be attempted.”

According to Lundstedt, the most extreme of the Scandinavian, “law is simply that
fact of social existence in organized groups and the condition which makes possible the co-
existence of mass of people.”

Ross the Danish jurist distinguished between laws which are normative and
statements about laws in books which are descriptive.

Now a days most of the jurists agreed that Scandinavian philosophy is also realistic school.
As per Frideman there is no similarities between American and Scandinavian realist. A only factor
which is similar between two trends of realist school is that both of them drag the concentration
toward the reality and truth by attracting toward the weakness of other schools.36

According to this school of thoughts law is the practice court. It highlight the importance of
court and judges. This school of thoughts believes judge made law as the actual law. This
school of thought focus on the scientific observation of law in its making and working. Society
is progressive and it changes faster than law and so the law should examine constantly as per
the societal needs and change in society, which society and law should go parallel with each
other. Law made in society should meet the contemporary social problems.

35
See page no-672 Jurisprudence and legal theory by V.D Maharjan

36
See page no: 55 Bdhi sastra by Narayan Pd.Lamsal

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 There are various jurist who support this school of thoughts i.e. Grey, Oliver Holmes, Karl
Olivercrona etc. prof. Corbin talks about what court do , Gray in hid 'the nature and source of
Law' defines law as what the judge declare.37Similarly Olivercrona believes that law is binding
to all and it is the set of social facts.
To sum up, the main tenets of realist school are:38
 What court do is law
 Decision of law courts are supreme
 Dogmatic formulation has nothing to do , So far law is concerned and;
 Human Factor or forces that influence a judge in reaching a decision are within the
field of study of law.

APPLICATION OF REALIST SCHOOL OF THOUGHTS

As said in the study of Realistic School that it is the combination of positivist and sociological
approaches. As in positivism, the law is seen as it is and not as it ‘ought’ to be. It also emphasizes
the importance of some aspect of society. And in sociological approaches it is said that it considers
law as social phenomenon and examines law in relation to society.
Realistic school believes in the principles of law and also refers law is what courts do and not what
they say and also says doctrine Prudente(judgment) is the main source of law.
Overall talking about the application of realistic school its concept was implementation of the law.
Law that are actually adopted and kept in motion rather than not implements. Now in comparison
of the thought of realistic school related to law with our present constitution. We can take those
laws in notice that has been sanctioned and came into implementation. Like marriage related act
in criminal code 2074, chapter 11 and pregnancy protection related act in chapter 13.
As realistic school clearly talks about the law those are implemented above acts can be taken as
reference of it in context of Nepal. Though there are laws despite of being sanctioned are not been
implemented.
Positivism regards law as the expression of the will of the State through the medium of the
Legislature. Theories of legal realism too, like positivism, look on law as the expression of the
Will of the State, but they see this through the medium of the courts. Like Austin, the realists
Look on law as the command of the sovereign, but there sovereign is not Parliament but the
Judges; for the realists the sovereign is the court.

37
Dr.S.R. Myneni , Jurisprudence (Legal theory), 2nd edition
38
Dr.S.R. Myneni , Jurisprudence (Legal theory), 2nd edition,p.532

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The philosophy enshrined in the preamble of the Constitution of Nepal and the chapters on
Fundamental rights, directive principles, fundamental duties, provisions relating to the powers
And functions of judiciary and amendment of the Constitution amply demonstrate that the
Entire focus of our jurisprudence is on welfare of the Nepalese masses and
Making law responsive to the social needs.

One of the major aspects realist school deals with is the Doctrine of Precedents. The Doctrine is
applicable in context of Nepal because precedents established by the Supreme Court is binding to
the lower courts.
In case of Udaya sankhar mandal on the behalf of Tikaram basyal vs. surkhet district court where
writ of Habeas corpus was filed where Tikaram basyal was punished for imprisonment for 45 days
but he is under age and the punishment was reduced for twenty-two and half day to be kept in
Borstal and fine 69,975 but he was unable to pay that fine and due to this 4 years of extra
punishment was added as same for other adult while one is unable to pay fine. And while deciding
this case by Supreme Court looks after the similar case which was as before i.e. NKP 2072 decision
no 9469 and NKP 2065 decision no 8015 where it established the principle that if in case someone
is unable to pay fine who are under age they shouldn’t be punished as like the same for adult.
Similarly in case published in NKP 2075 decision no: 9932 Supreme Court used 8 different
principle which is already made by the same court.

There is an increasing trend of judicial activism and public interest litigation that can be
Witnessed in Nepal as of lately. The developing trends as to and in regards to public interest
Litigation has opened new vistas for interpreting law in the context of social settings. Law has
Been used as a tool of social transformation for creating a new social order with primacy to
Social justice.

The Constitution is the fundamental law of the land which establishes the
Judiciary and empowers it to eliminate acts of legislatures and actions of the executive as
Unconstitutional if they infringe the guaranteed rights of citizens. The Courts are the
Guardians of the Constitution; they act in the name of the people and for the people.

It is true that judges are expected to be circumspect and self-disciplined in the discharge of
Their judicial functions. They cannot possibly govern the country or enact the laws. To the
Extent that judicial activism is making the legislative and executive branches perform
Properly in accordance with the rule of law the Court’s functioning is unexceptionable. And
There’s no reason to believe that activism could degenerate into autocracy, but one must
Remember that the sole check on judicial power is in the hands of the judge's themselves.31
Being so powerful, it must be respectfully assumed that judges are not unmindful of Lord
Acton’s dictum- All power tends to corrupt and absolute power corrupts absolutely.
Constitution of Nepal 2072 has stated in the article 126 that courts shall exercise powers relating
to justice. This however is in accordance to the constitution. Nepal can be seen as having a middle

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way approach to realistic school. Nepal has given the power to the courts but limited it by the
constituion.

Part 11, Article 126 of the Constitution 2047 of Nepal has provided the role of Judiciary in
law making that the orders and decisions of courts to be binding on all the lower courts and
government offices.
Article -96 Orders and decisions of the courts to be binding:
1. All shall abide by the orders and decisions made in the course of hearing of a suit by
courts.

2. Any interpretation given to a law or any legal principle laid down by the Supreme
Court in the course of hearing of a suit shall be binding on His Majesty’s Government
and all offices and courts.

Similarly, in the Interim Constitution 2063 of Nepal in part 10, Article 116(1),(2) has also identifies
the significance of realist school in the legal provisions of Nepal.
Article-116 Orders and decisions of the courts are binding.
1) All shall abide by the orders and decisions made in the course of hearing of a suit
by courts.

2) Any interpretation given to a law or any legal principle laid down by

the Supreme Court in the course of hearing of a suit shall be binding on the Nepal
government and all offices and courts.

Above mentioned articles on the Constitution 2047 and Interim Constitution 2063 also shows that
there was significant role of realist school in the Nepalese legal system.
Some of the land mark decisions of the supreme courts are as follows:

1) Mira kumari Dhungana Vs His Majesty’s government.

2) Man Bahadur Viswakarma Vs HMG Ministry of law, Justice and

Parliamentary affairs, Others

3) Rina Bajracharya Vs His Majesty’ Government Secretariat of the Council of

Ministers and others.

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Case analysis
1) Mira kumari Dhungana Vs His Majesty’s government

Petitioner brought forward a write petition before the court requesting to declare the no.1 of
chapter rape of Muluki Ain 2020 Void on the ground of inconsistency with the right to equality
guaranteed by the constitution and the other international instrument relating to human right,
Universal Declaration of Human Right (UDHR, ICCER, ICCPR and CEDAW)
VERDICT
The court Declared marital rape as punishable an issued a directive ordered to tone of the
respondent namely Ministry of Law Justice and Parliament affairs to make conscious and just legal
provisions to complement the marital rape because the consequence of a crime of rape by husband
and any other person differ in respect of collection of evidence circumstance, quantum or gravity
of punishment and its priority. Legal provisions regarding marital rape should be given a
complexion considering a special circumstance of marital relation. Statues of the husband no.8 on
chapter on rape have circumstances caused by the rape from the person other than husband. Such
majors to be made should adopt major to provide immediate relief like provision to live separate
or divorce on provision to address rape caused by child marriage.

2) Man Bahadur Viswakarma Vs HMG Ministry of law, Justice and Parliamentary

affairs, others

Article 11(4) of the Constitution of the Kingdom of Nepal provides that no person would be
discriminated against on the grounds of caste or untouchability or prohibited to use any public
entity or be present in public places. Such action would be punishable in accordance with the law.
Similarly, the provision in the Civil Code (Muluki Ain) provides that anyone committing such an
offence would be imprisoned for one year and fined up to the amount of Rs. 3000. These
mentioned provisions are positive, timely and humanitarian; however, the respondents have
maintained a clarification on the provision of in Clause 10(a) of the chapter saying that "the
treatment which has been practised traditionally in a temple or religious place would not constitute
discrimination." Temples or religious places are public places and the clarification is
inconsistent with Article 11 of the Constitution. In many religious places, Dalit castes, including
the petitioner, are prohibited to enter public places in the name of tradition.

Therefore, the clarification in Clause 10(a) of the chapter on conduct is demanded to be declared
unconstitutional. The respondents asserted that Article 19 of the Constitution provides that every
religious group has the right to religion, keeping their independent identity. The treatment which
has been practised from the beginning would not constitute discrimination. All temples and

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religious places could not be public, they may be private too. In some temples and religious places,
it has been a practice from the very beginning that only particular religious creed or persons are
allowed to enter and others are restricted from entering. The provision could not be interpreted as
inconsistent with the right to equality and the right to religion. Therefore the petition was requested
to be quashed.

VERDICT
The Constitution has not only prohibited untouchability and other social wrong traditions but has
also declared such acts punishable. The questioned clarification seems for making the main
provision explicit. The main provision provides for punishment for the act of discriminating on
the grounds of untouchability and restricting from public use. But the clarification seems to be
supporting the discriminatory treatment. By the clarification the scope of the provision has been
restricted and limited.
Clause 10(a) reveals that the prohibition of the discrimination as directed by Article 11(4) of the
Constitution itself is sufficient for prescribing penalty. Therefore there seemed no need for such
an explanation providing an exceptional provision. Such an exceptional legal provision would
otherwise implicate the main provision and the Constitution would be controlled by the normal
law. The fundamental difference between the Constitution and normal law might be absconded
and constitutional purpose might be defeated. The questioned clarification restricts and limits the
provision of Article 11(4) of the Constitution; therefore, it seems inconsistent with it and is
declared invalid.

3)Rina Bajracharya Vs His Majesty’ Government Secretariat of the Council of Ministers

and others.
This case is related on Gender Equality in employment. The subject of this case is Certiorari. The
petitioner of this case is Reena Bajracharya and others and the respondent of this case is Royal
Nepal Airlines Corporation (RNAC).The fact of this case is Gender Discrimination in Retirement.
VERDICT
According to the Regulations of the Corporation, personnel means Pilot, Co-pilot, Flight Engineer,
Radio Officer, Flight Navigator, Air-hostess, Cabin Assistant, and Purser appointed in the service
of the Corporation in any grade. It deemed that other provisions including working hours and leave
facilities, except the one in question, are equal to all. The issue of gender equality raised by the
petitioners seemed relevant to be analyzed considering the developments and provision of human
rights. The issue of gender equality has been raised from time to time in the democratization
process of Nepal and after the commencement of the Constitution 1990.

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There is a proclamation in the Constitution ensuring fundamental human rights and Nepal has
signed a number of Conventions including the 1979 Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW). Section 9 of the Treaty Act 2047 focuses on prompt
implementation, keeping them in a higher grade than Nepal laws. Nepal’s acceptance of the
international spirit of CEDAW has been justified by the spirit of proviso and Article 11(3) of the
Constitution. The importance of gender equality is inseparable from the development of national
human rights, so there should be no point in law and activities which may hint at gender
discrimination.

With this understanding it has been necessary for the Court to see whether the provision in Rule
16.1.3 of the Regulations is consistent with the above mentioned Articles 11(5), 11(2), 11(3) and
11(5) of the Constitution which has internalized the spirit of Article 15 of the 1979 Convention.
Article 11(1) provides for equality before law; Article 11(2) stipulates protection against
discrimination on the ground of religion, gender etc. in the application of the law; 11(3) stipulates
that the State would not discriminate against anyone on the ground of gender, color etc.; and 11(5)
guarantees equal remuneration for equal work. According to these fundamental points, it is evident
that security and amenities in service shall be equal. The proviso of Article 11(3) is not restrictive
but is of a positive nature for legislating for progress and the protection of women. It is not a
provision for compromising the equal treatment of women. Additionally, Rule 16.1.3 directly
contravenes Article 26(7) which directs the State to encourage the participation of women in the
national development.
Therefore, it can be said that the Rule provides for conditions by which the petitioners would be
deprived of equal opportunities in serving. A law giving room for discretion could not establish
the right to equality. Estoppel may not be applied to legal rights and the principle of delay may not
be applied to a constitutional question. Therefore, Rule 16.1.3 of the above mentioned regulation
is against equality, inconsistent with the constitutional provision and is to be declared void through
the issuance of a writ.

V. ECONOMIC SCHOOL OF THOUGHTS

The term economics is derived from the Latin word ‘oikonomikos’ which means skilled in human
management. Economics is an essentially normative subject of concern as it equally is a positive
one. It is stagnant that the economics of a country has been directing the provision of law in
different manners.
The economic school of thought is related with the material things, which is why it is a materialistic
approach. It basically deals with the dialectical materialism as proposed by Hegel i.e. material facts
are to be taken into note while making law. Laws regarding property, contract act, education, health
are based on economical school of thought. This school mentions the influence of economy on
law. It says that economy is the main factor to create perception of law. For Marx, the means of

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economic production was decisive in determining the general character of social, political and
spiritual processes of life. The laws should have implied with the practical economic theories that
are in practice and vice versa. For instance how can producers sell and distribute if the government
restricts it? How could there be an act made on trade if trade were not carried out?
According to Richard Posner, law is a device created by and operated by people with an economic
perception of society and it is used to balance interest in society in the most economically efficient
way. The interpretation of law as part of an economic interpretation of social evolution is the
consequence of the social and political theories of Marx and Engels.
Although there are many scholars in economic school of thoughts, the main scholars are Karl
Marx, Friedrich Engels, John Maynard Keynes, and many more. However, the economic school
of jurisprudence is also known as Marxian jurisprudence as Karl Marx is regarded as the major
contributor to the subject and other perspectives followed were derived to criticize or add on to
Marx.

Karl Marx
Marx combines mainly three terms: economics, society and politics and made a term Marxism.
Marx argued that the social development is influenced by material, economic and environmental
conditions. Marxist interpretations state that law is made by the high class people with the purpose
of exploitation of the lower class people. It emphasizes that law, like any other institutions of a
society is no more than a “superstructure”, an ideological reflection of the society’s underlying
realities. Marx was much more influenced by Hegels’ dialectical method. Marxism encompasses
Marxian economic theory, a sociological theory and a revolutionary view of social change that has
greatly influenced socialist political movements worldwide. Karl Marx did not provide with
specific account to law which is why his understanding of law is just a subset of interpretations of
the general intellectual approaches of society as prescribed by him.

Marx on Law and state:

“Law is a reflex in the economic substrate that accords with reality.” For Marx, law is backed by
an “ultimate reality” in the economic background of the bourgeoisies and hence they create some
“illusionary distortions” to deviate the rest from that sort of reality. Hence, law maybe the
expression of will of a man but it is conditioned by an economic interest. Law was an instrument
of oppression and class rule, a system of sanctions designed to safeguard the fundamental principle
of class rule and ruling class by the state. Hence, the interpretations follow that the state runs on
the interest and by the ruling class.
The following background is what has determined his analysis on law.
 The private owners of woods in Germany started growing agitated at the common practise
of civilians passing through and making use of the broken woods from their part of land.
So, the nobles expressed a basic legal paradigm of private property. Here, while state
restricted the picking up of woods by the other civilians with the universal notion of private
property, Marx interpreted this action of state in a different manner. Marx’s interpretation

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 expresses that the “universal interest” that the state claims to protect actually corresponds
to the interest of a particular group of people only (and here the private owners of woods)
hence subordinating to the interests of the rest. The state hence seems to be in the hands of
private property interests. So, he concludes that law in the context of woods, merely assists
to privatisation of state by the bourgeoisie. This was the context of the first newspaper
article written by Marx that showed some sparks on propounding the Marxist ideology on
law.

 Marx, also talks about two different terminologies that is the political emancipation
(freedom) and human emancipation. Here, it is said that while law is there for the
emancipation of individuals, it is only a mere formal practise. For instance, the declaration
of human as free and equal is formal and it resides outside the realm of our fundamentally
essential human emancipation. So, the political freedom not only co-exists but also blocks
the path to our human freedom. This way, Marx presents a devastating critique that we now
think that the declaration of rights in the written laws are our actual freedom. The abstract
political emancipation actually acts a veil to the existing inequalities that we suffer from.

Collins distinguishes two ways of regarding the views on law by Marx:

1. Class instrumentalism: This particular approach regards law as a weapon in the
class struggle. Law is just another instrument of oppressing the lower social classes
and such explanation can be derived from the conflict model.
2. Economic determinism: This approach regards law not just a tool of the ruling
class, but as a phenomenon produced and reproduced by the essential economic
drives of production.

 Marx believes that society will go from the stages of primitive communism, slave systems,
feudalism, capitalism, socialism and finally communism. In each of these stages the
economic system determines the views of those living during the system. Each includes a
class struggle which leads inevitably to the next stage of societal development. In
feudalism a class struggle between landlord and serf will exist which will then lead to the
next stage, capitalism. In capitalism, there will be clash of the bourgeois and workers where
the bourgeois will look for more profit and there will be high use of machinery things. It
will decrease the number of labourers needed to produce a good. As a result unemployment
will increase and capitalist will have less opportunity to exploit labour, and the rate of profit
will fall and the wages would be even less. One capitalist will take over the capital of
another capitalist as in a modern day merger. At last, there would be only one capitalist left
and everyone else would be in the reserved army of the unemployed, and with no labour
working, no value would be produced and profits would be zero. Before history reaches
this, limiting workers in some countries will take over the property of the remaining
capitalists and create a new state to administer this property as an agent for the working
class which will automatically convert the society into socialism. The last stage of the
socialism will be the communism. Here, domination will cease, inequalities will vanish,

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 and then the state and law will disappear as well. Marx supposed that the defects and
inequalities in human society were due to factors that lay in production and economic
conditions and outside the nature of man. This assumes that Man is by nature equal and
free, and that only in the communist society would he be able to realise his true self.
From all this, the following doctrines are deducible as to the nature of law:
Doctrine of the Economic determination of Law:
Ideas according to Marx are reflections of reality, and in this respect he differed, as pointed out,
from Hegel. Law is a superstructure on an economic system; economic facts are independent of
antecedent to law. The notion that law is an ideology, for it accords with reality. There may be
other superstructures and other ideologies, e.g. religion, but they all have their ultimate reality in
the economic background.
Doctrine of the class character of Law:
Law is an instrument used by the economic rulers to keep the masses in subjection. Even after the
establishment of the proletarian dictatorship law will continue to be used as the instrument by
which the working class majority can crush and eliminate the capitalist minority. Therefore law
will always be used as an instrument of domination.
Doctrine of the identity of Law and State:
When there was unequal distribution of equalities and class distinction was developed, state came
into existence. For the protection and increase in the power and property of the bourgeois, law was
to be formulated. So, law and the state in capitalist societies together form an apparatus of
compulsion wielded by the minority to oppress and exploit the working majority. Not only in the
bourgeois dictatorship but also in the proletarian dictatorship these will remain as instruments of
compulsion and domination. Thus state reflects as an essentially unequal condition of affairs.
Doctrine of the withering away of Law and State:
In communism or classless society there will be no domination and inequality on the people. The
instruments of domination would wither away and be replaced by ‘an administration of things’ in
the words of Engels. Hence, there will be an end to law in a communist society as prescribed by
Marx.
Additionally, there are two major theories that explain the behavioral economic analysis:
Game theory:
Game theory adds to economic modelling, the phenomenon of strategic action. Here, strategic
actions are those adopted because of the competitive nature of many social transactions. They are
adopted due to how one individual expects another to act in response. For example, a person who
wishes to buy an item cheap would act disinterested so as not to signal his or her actual desire to
the sellers and here, cooperation is not assumed. Addition of analytical tools dealing with strategic
actions greatly strengthens the economic analysis of law but that is not necessarily assured.

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Similarly, in law too, legal actions are deeply implicated in and animated by strategic motives with
a notion of possibility.
Public Choice theory:
Public choice theory is centered upon how the nature of the legislative process and collective
decision making influence the nature of law. It is the application of economic models of decision
making and their results to the issues that traditionally occupy political science. This theory claims
that a proper understanding of collective decision process will help judges understand their
position within the system. However, if all collective decisions are influenced by those who get to
frame the questions debated and the order of voting- the agenda setters- public legislation will need
to be interpreted differently in a more neutral account of collective wishes.

Pashukanis(1891-1937) on commodity-exchange theory:

Pashukanis as a renowned Russian exponent of the Marxist jurisprudence is said to have
introduced a new wave of ideas on the same. He I said to have been influence by two German
writers, Jellinek and Laband. On the following account, Pashukanis mentions that law is built up
of individual relations. Hereby, he emphasizes that the exchange of commodity is an expression
of individual rights and legal relationships. Law provides equality to the pre- existing inequalities
in the societies and the ultimate aim is to keep everyone in an equal footing in the future. In this
process, law shall dissolve earlier than state given that the state will remain longer than the sub-
structures in the long run where the society aims to reach to communism. Hence, as per his soviet
analysis on such, he mentions that “law presupposes theoretical equality and not subjection. This
way, he counters Marx on the fact that law is a system of social relationships and not product
relationships.

APPLICATION OF ECONOMIC SCHOOL OF THOUGHTS

Karl Marx held that human labor was the source of economic value. The capitalist pays his workers
less than the value their labor has added to the goods, usually only enough to maintain the worker
at a subsistence level. Of the total worth of the worker’s labor, however, this compensation, in
Marxian theory, accounts for only a mere portion, equivalent to the worker’s means of subsistence.
The remainder is “surplus labour,” and the value it produces is “Surplus value.” To make a profit,
Marx argued, the capitalist appropriates this surplus value, thereby exploiting the laborer.

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 Since the workers don’t own the means of production, they have no control over their labour and
therefore are essentially no more than machines working to produce a profit for capitalist masters,
who get rich off not paying a worker their full value of what they produce.
Marxist jurisprudence is no other then the tool to end the class struggle and reach up to the class
less society which Marx refer as communism. According to this school factors of production,
surplus value and economy determine the nature of law. And while enforcing the law, the capacity
of government is to be taken into consideration. According to Andrei Vyshinsky, the guiding
principle of Soviet law is: social system resting on socialist property, annihilation of
exploitation and social inequality, distribution in proportion to labour, a gurantee to each
member of society of the complete and the manifold development of all his (spiritual and
physical) creative forces and personal freedom.
In Communist manifesto Marx describes about;
1. World without private property and inherited wealth
2. Labor exploitation
3. Exploitation of factors of production
4. Relation between Bourgeoisie and Proletarians
5. Free public education
6. Steeply graduated income tax

1. UML Local Election Manifesto

Dedicated labor: Reputable workers

 The involvement of 10 percent of workers in the locally elected bodies
will be implemented.
 Regular work and similar work equivalent to the remuneration as per international commitment will
be applied from local level.
 The workers of the informal sector will also be taken in the registration process to bring them into
social security. Their Certificate will be given by testing their skill. In the related field the data of
foreign employed people will also be kept.

 To manage and safeguard the foreign employment, an arrangement will be done. So that all the
information and services related to foreign employment will be available from the local level.
Considering the experience of those citizens from foreign employment, their skills will be used as per
the requirement in local level.

2. CONSTITUTION

Article 34. Right to labour:

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(1) Every labourer shall have the right to practice appropriate labour.

Explanation: For the purposes of this Article, “labourer” means a labourer or

Worker who does physical or mental work for an employer in consideration for
Remuneration.

(2) Every labourer shall have the right to appropriate remuneration,

Facilities and contributory social security.

Article 29. Right against exploitation:

(1) Every person shall have the right against exploitation.

(2) No person shall be exploited in any manner on the grounds of

Religion, custom, tradition, usage, practice or on any other grounds.

(4) No one shall be forced to work against his or her will.

(5) Act contrary to clauses (3) and (4) shall be punishable by law and
The victim shall have the right to obtain compensation from the perpetrator in
Accordance with law.

Article 33. Right to employment: (1) Every citizen shall have the right to employment. The terms
and conditions of employment, and unemployment benefit shall be as provided for in the Federal law.
(2) Every citizen shall have the right to choose employment.

Article 43. Right to social security: The indigent citizens, incapacitated and helpless citizens,
helpless single women, citizens with disabilities, children, citizens who cannot take care themselves
and citizens belonging to the tribes on the verge of extinction shall have the right to social security,
in accordance with law.

Article 31: Right relating to education: (1) every citizen shall have the right of access to basic
education. (2) Every citizen shall have the right to get compulsory and free education up to the basic
level and free education up to the secondary level from the State.

Part-4 Directives Principles, Policies and Objectives of the State

Article 50. Directive principles:

(2) The social and cultural objective of the State shall be to build a
civilized and egalitarian society by eliminating all forms of discrimination,
exploitation and injustice on the grounds of religion, culture, tradition, usage, custom, practice or on
any other similar grounds, to develop social, cultural values founded on national pride, democracy,

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pro-people, respect of labour, entrepreneurship, discipline, dignity and harmony, and to consolidate
the national unity by maintaining social cohesion, solidarity and harmony, while recognizing the
cultural diversity.

(3) The economic objective of the State shall be to achieve a sustainable

economic development, while achieving rapid economic growth, by way of
maximum mobilization of the available means and resources through participation and
development of public, private and cooperatives, and to develop a socialism-oriented independent
and prosperous economy while making the national economy independent, self-reliant and
progressive in order to build an exploitation free society by abolishing economic inequality
through equitable distribution of gains.

Article 51 Policies of the state

(d) Relating to economy, industry and commerce:

(5) To make equitable distribution of the available means and resources

and benefits of economic development

Note: Marx majorly talks about the unequal distribution of means and resources between Bourgeoisie
and proletarians. He also mentions how bourgeoisie exploited means of production and proletarians
(who are basically labourer) in his book Communist Manifesto.
(e) Policies relating to agriculture and land reforms:

(1) To make scientific land reforms having regard to the interests of the
farmers, while ending the dual ownership existing in the lands,

(i) Policies relating to labour and employment:

(1) to make competent and professional the labour force that has
remained as the main socio-economic strength of the country and
enhance employment, (2) to guarantee social security, while ensuring the basic rights of all labours,
in consonance with the concept of decent labour, (3) to abolish all forms of labour exploitation
including child labour,

Part-8 Federal legislature.

Article 84. Composition of house of representative.

(2) The federal law shall provide that, in fielding candidacy by political parties for the election to the
house of representative under the proportional electoral system, representation shall be ensured on
the basis of a closed list also from women, dalit, indigenous peoples, khas, arya, madhesi, tharu,
muslims and backward regions, on the basis of population. In so fielding candidacy, regard shall also
be had to geography and territorial balance.

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Article 40. Right to dalit:-
(1). the dalit shall have the right to participate in all bodies of the state on the basis of the principle of
proportional inclusion. Special provision shall be made by law for the empowerment, representation
and participation of the Dalit community in public services as well as other sector of employment.

(2). Provision of free education with scholarship, from primary to higher education, shall be made by
law for the Dalit students

(3). Special provision shell be made by law in order to provide health and social security to the Dalit
community.

(5). the state shall once provide land to the landless Dalit in accordance with law.
31. Right relating to education: (1) every citizen shall have the right of access to
basic education. (2) Every citizen shall have the right to get compulsory and free
education up to the basic level and free education up to the secondary level from
the State.

3. Contribution Based Social security scheme

Establishment of social security fund

1. Medication Treatment, Health and Mental Safety Plan

Facilities:
 Doctor's councelling service
 Hospitalization and surgery charge fee
 Diseases test and treatment expenses
 The amount according to the bill of medicine

2. Old age security scheme:

Service Ending Facilities:

 Deposit amount ( 10% from the employer and 10% of labour work)
 Subsidy amount (8.33% contribution from employees)
3. Residential Family Safety Scheme:

Facilities:
 The husband and wife of the workers who died due to accident or occupational
disease, the 60 percent rate of the last basic salary of the contributor, But such
tendencies will not be found in the case of a substitute for a mate or in the second
marriage.

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 4. Accident and Disability Safety Plan:

Facilities:
 Total expense is done for laboratory treatment of all kinds of employment related
accident or occupational diseases that may cause while doing the tasks assigned
by employers or while coming or going from work.
 The expense done is at most seven lakhs for the situation of accident of other than
in the employment.

4. Land Reform Act 2021 B.S

The Land Reform Act (1964) is a cumulative outcome of precious efforts to transform the socio-
economic structure of the society by altering institutional structure of land and agriculture.

Its major objectives are to eliminate all forms of exploitation prevailing in the society and to
provide the necessary legal framework to make both current and future investment in land
possible, catalyst of economic development, maintain social justice, fair share of the procedure to
the cultivators, proper utilization of land and to maximize the agriculture production. It fixed the
ceiling on ownership of the land holdings as, 25 Bigha (17 hec.) in Terai and inner Terai, 80
Ropanis (4.07 hec.) in the Hills and Mountains and 50 Ropanis (2.5 hec.) in Kathmandu.

It lead to the equal distribution of the land holdings, encouraged compulsory savings and protected
the tenure rights.

5. Labour Act 2074

Features;
1. No discrimination on basis of religion, gender, caste, culture etc.
2. Right related to trade union.
3. Facility of festival bonus
4. Provision related to proper work time
5. Medical Insurance
Coverage: at least one hundred thousand rupees (Rs. 100,000) per year for every worker

Premium: half by the employer and half by the employee

6. Accident Insurance

6. Civil Rights Act, 2012 (1955)

Right to property, Restriction from force labour is protected by this act.

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7. Free and Compulsory Education Act 2018
With the presidential seal, the government’s Free and Compulsory Education Act came into effect
on Tuesday, making the state responsible for ensuring that no child is deprived of school education.
According to the new law, local governments have to make sure that every child from 5 to 12 years
of age is enrolled and receives a free education at public schools.

Every citizen has the right to quality education through equitable means. No one shall be
discriminated in any regard to obtain quality education.
Section 3(8): Economically backward and dalit citizens shall have the right to free higher level
education.
Section 6: The state shall make arrangements to provide compulsory education to those who have
completed age 4 and not completed age 13 through the local bodies.

8. Income tax
According to budget speech 2076/77 “Single person earning Rs 4 lakh and Couple earning Rs 4.5
lakh is exempted from income tax.” We practice system of progressive tax.

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 CASES
1. Reshma Thapa vs. Prime Minister and Office of the Secretariat of Council
39
of Ministers et al : In our society due to different superstitious believe women are
becoming the victim of torture. The charge of witchcraft against women in rural are of Nepal
is a common, This is a type of superstitious belief, but sometime a notorious person may use
this charge as a means of revenge When someone died in a remote area of the Terai and in the
villages of mountainous areas, some people still believe that this is the consequence of
witchcraft, which killed the victim. Even in the 21st century, some Nepali people believe in
witchcraft, many women have lost their live in the name of witchcraft. And court speak as, the
cause of death of a person through witchcraft is not possible scientifically and witchcraft has
not yet been proven to exist by any scientific test or research. So what people think the death
of someone due to witchcraft is only superstitious believe which need to be changed. Just
blaming women as witch standing on superstitious believe and torture them is inhuman activity
which damage the woman's prestige, dignity, reputation etc. which these all activity falls under
level of offensive activity.

From this case it leads to develop the law related to witchcraft "The Anti-witchcraft (Crime and
Punishment) Act, 201440which regards blaming someone as witch is crime. This law is enacted
according to the needs of society by the change and development of society.

41
For the support of this decision the case of Hari bahadur biswokarma vs.government of Nepal
in which persons blaming for someone as witch and also attempt for murder were punished for
Life time imprisonment and fine of Rs.25,000.

2. Achut Prasad kharel vs.council of minister42: There is gap created between husband
and wife in our society there is another concept in society that the husband is the master and
wife is his slave. Therefore the husband has got right to decide about the birth of children,
whether the number is needed. The wife has no right to decide about reproductive health, even

39
Dr. Ram Krishna Timalsena (ed), (2010), Landmark Decision of Supreme Court, Kathmandu: Supreme Court, p.
11
40
https://thehimalayantimes.com/kathmandu/new-law-to-protect-women-branded-witches-in-offing/
41
NKP 2074,p.538 ,Decision no: 9791
42
NKP 2067-Ashoj , Decesion no:8384,p. 895

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 whether she might die due to delivery complication. Women are treated as only the industry
for baby delivery and by this writ petition of Achut Prasad kharel Supreme Court of Nepal
established the reproductive health rights to the women. It gave freedom for women to decide
the number of children needed, birth spacing for bearing children, the time of giving birth a
woman has the sole right to her own body. Under this concept, she has the right to determine
her own birth processes. To enjoy this fundamental right, its purview cannot be narrowed down
on the basis of only the numbers of the delivery of the woman. A woman has the right to their
own physical body, therefore, pursuant to the reproductive health right, she is solely entitled
to make decisions about the reproduction and the number of children. We can also find law
regards this in present constitution of Nepal 2072 article 38(2)43.
3. Sunil Babu panta vs. Government of Nepal, Office of the Prime Minister and
Council of Ministers and others 44

One of the activities of LGBTI community filed a case against the Government of Nepal for
excluding gender and sexual minorities. They claimed for the legal recognition of LGBTI persons.
Where the Court recognized LGBTI persons as equal citizens of the nation, eligible to enjoy all
constitutional rights. It held that the State was responsible for providing identity documents which
reflected a person’s self-declared gender identity. Relying on Nepal’s international obligations, the
Court emphasized that LGBTI persons were entitled to the right to non-discrimination and
equality. The Court stated that gender non-conformity and same-sex orientation were not results
of mental perversions or emotional or psychological disorders. Instead, it recognised LGBTI
identities as natural. It stated that sexual relations between two adults were a private affair and that
the fundamental right to privacy extended to LGBTI persons. It also held that same-sex relations
must not be penalized for being “unnatural”.

The Court recommended that the Constitution of Nepal list sexual orientation are gender identity
as prohibited grounds of discrimination. It also directed the Government of Nepal to form a
committee to explore issues relating to same-sex marriages.

43
This provision includes as "Every women shall have right relating to safe motherhood and reproductive health."
44
NJA Law Journal 2008,p. 262

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4. Somprasad Paneru and Others V Office of Prime Minister and Council of
Ministers and Others45

In this case the petitioners drew the attention of the Supreme Court to the practice of “Kamlari”
which subjected young, school-going-aged-girls, of far west and Mid-west Nepal to work as
bonded labor. The petitioners claimed that the practice was against the provisions of Bonded Labor
(Prohibition) Act, 2058 (2002 AD), Child Labor (Prohibition and Regulation) Act, 2056 (2000
AD) and human rights instruments including several provisions of the Convention on the Right of
the Child, 1989. While agreeing with the petitioners that such a practice needed to be stopped, the
majority in this case issued a directive order in the name of the respondents viz. the Council of
Ministers and the Ministry of Education to incorporate in the curricula of the child, the contents of
human rights related international Conventions such as the Convention on the Right of the Child,
1989, International Covenant on Civil and Political Rights, 1966 and International Covenant on
Economic, Social and Cultural Rights, 1966, to which Nepal is a party, and which covered all
aspects of human rights. Justice Balaram KC, through his dissenting opinion, called upon the
government to bring out a comprehensive legislation banning the practice of keeping domestic
servants and other forms of exploitation of children, advance an economic package to empower
and ensure the social security of women and children affected by the practice of Kamlari. Through
which the government had announced to free Kamlaris on June 27, 2013, they were left in the
lurch due to lack to proper rehabilitation. Practice of kamlari system was finally abolished on
201346.

5. Mira Kumari Dhungana vs. Council of Ministers et al47

In this writ petition, the petitioner demanded to declare null Section No. 12a of the Chapter on
‘Inheritance” of the Country Code, on the grounds that it is based on a discriminatory view of

45
Writ No. 3215 of the year 2061 BS.

46
https://thehimalayantimes.com/nepal/despite-abolition-of-kamlari-culture-slavery-still-continues-in-kailali/, The
government had taken responsibility to educate, provide health and food items among others basic needs to the
Kamlaris while freeing them. Following the announcement of government, 12,000 Kamalaris from Kailali,
Kanchanpur, Banke, Bardiya and Dang were rescued.https://www.nepalyouthfoundation.org/wp-
content/uploads/2014/05/NYF-FactSheet-History_of_Kamlari-May2014.pdf
47
NKP 2061,p.377 Decision no:7357

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gender equality and against the right to equality enshrine under Article 11 of the Constitution of
1990 because it mentions that the property received by a unmarried girl via inheritance needs to
be returned to her parent family after marriage. In this case, the Supreme Court held that the
property acquired under inheritance is private property and it can be used without permission of
other members of the same family pursuant to No. 18 of the Chapter on ‘Partition’ of the Country
Code. The Court stated that such property did not need to be divided among the partition-holders,
therefore, the provision under Section No. 12a of the Chapter on ‘Inheritance” is inconsistent with
Article 11 of the Constitution of 1990 and the Supreme Court declared ultra vires the provision in
question from the date of its decision. In present civil code 2074 daughter has also got equally
priority in property and it need not to be returned after the marriage also where it doesn’t include
such of discrimatory provision.

6. Vasundhara Thapa vs. His Majesty Government et al48

The Petitioner raised an issue about the discrimination made by Section 7(3) of the National
Academy for Upliftment of Aboriginal and Ethnic Groups Act, 2058, stating that the male
members’ term of office is four years, with a potential for an additional two year term, whereas
for female members, Section 7(1)(n) contains a provision for only a two year term with no
arrangement for a second term of reappointment. These provisions of law were found to be
contradictory to provision of Article 11 of the Constitution of 1990. It contained discriminatory
provisions between male and female members in relation to tenure and possibility of
reappointment to the same position. The Supreme Court declared that section to be ultra vires to
this provision on the grounds of inconsistency with the fundamental right to equality enshrine
under Article 11.

Now if we look out through National Academy for Upliftment of Aboriginal and Ethnic Groups
Act, 2058 this such of provision is amended and which include that from each development region
2 women are nominated who had made contribution in uplifting for of Aboriginal and Ethnic
Groups and their term is same as 4 year for both male and female.

48
NKP 2060,p.389 decesion no:7217

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 7. Jyoti Baniya vs. Government of Nepal49

In this case Petitioner raised an issue about the syndicate prevailing in transformation facilities
here petitioner claimed for the end of the such types of transportation syndicate from which public
are getting trouble and court issued the directive order in the name of the government as this kinds
of facility is related with the public and it is government duty to make it people friendly so
government brings out rule by amending Transport Management Directive of 2004 and introduced
a provision whereby the government will issue new vehicle route permits to public vehicles of
only those transport companies that are registered at the DoTM.50

8. Lal Bahadur Thapa V Ministry of Local Development and Others51

On 2054/04/10 Kathmandu Metropolitan City decided to make Nepal Bhasa as the official
language

On 2054/08/3 District Development Committee (DDC), Dhanusa decided to make Maithali

language as the official language

On 2054/08/24Rajbiraj Municipality decided to make Maithali language as the official language

The Nepali language in the Devanagari script is the language of the nation of Nepal. The Nepali
language shall be the official language. All the languages spoken as the mother tongue in the
various parts of Nepal are the national languages of Nepal. In our present constitution article
mentions that:

6. Languages of the nation: All languages spoken as the mother tongues in Nepal are the
languages of the nation.

7. Official language: (1) The Nepali language in the Devnagari script shall be the official
language of Nepal.

49
NKP 2074,p.2067 decision no:9920
50
https://thehimalayantimes.com/business/government-set-to-act-against-transport-syndicate/
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Writ No.2931 of Year 2054

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 (2) A State may, by a State law, determine one or more than one languages of the nation spoken
by a majority of people within the State as its official language(s), in addition to the Nepali
language.

9. Sanjaya kunar podar vs. Nepal government 52

In this case sanjaya kumar kidnap one boy and take back to India and murder him and here case
is filed demanding punishment for both kidnap and murder but while giving decision court
established the precedent that as punishment is given for committing murder which is of higher
degree so there should not need to give the punishment for kidnaping and this becomes as law in
criminal code, punishment determining act 2074 clause 36(3).

10. Sapana Pradhan Malla vs. Government of Nepal53

Here petitioner claims that the age of the marriage for boys is 22 and for girls is only 18 which
creates discrimination and also foe woman it is too early which also creates health problem in
them. Also this such of provision is incontinence with the constitution so this should be void and
court order this law should amend which seems discrimatory so now the age of marriage for both
boys and girls is 20 years.

11. Raju Prasad chapagain vs. government of Nepal 54

Gender friendly advertisement

52
NKP 2074,p:1700 decesion no:1890
53
http://nkp.gov.np/full_detail/3237/?keywords=%E0%A4%B8%E0%A4%AA%E0%A4%A8%E0%A4%BE%20%E0%A4
%AA%E0%A5%8D%E0%A4%B0%E0%A4%A7%E0%A4%BE%E0%A4%A8%20%E0%A4%AE%E0%A4%B2%E0%A5%8D%
E0%A4%B2
54
writ no:0723 decision date 2065/5/16

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 References cases and laws for importance's of law
To deliver justice
In general, justice refers to being fair and unbiased.
“Main aim of law is to provide justice”
-John Rawls
By ensuring rights of citizens and also provisioning criminal law, both corrective and
distributive justice is maintained by the state.

Acts
. Pradhan Nyayalaya Act 2008 BS
. Supreme Court Act 2048 BS
Acts as such help to improve the justice systems of our country.

Case:
Marbury Vs Madison
This ia the example of judicial review which ensures justice in the country.

Constitutional provisions
- Article 20- Right relating to justice
- Acticle 21- Right of victim of crime
- Article 51(k)- Policies relating to justice and penal system
- Article 46- Right to constitutional remedies
- Article 126- Courts to exercise powerrelating to justice
- Article 133- Jurisdiction of supreme court
- Article 144- Jurisdiction of high court

All the above mentioned provision strengthen the justice system while having proper
remedies and criminal procedures including filing of writs. Besides that, Muluki Ain
2074 helps in governing the procedural law and penal system. Thus law helps to render
justice.

For Development
Development in simple word is a process of subsequent positive changes. Law boosts
development in a country.

Acts:
. Education act 2028 BS
. Water resources act 2049 BS
. Health insurance act 2074
Such acts in the context of Nepal have helped to catalyze the development process.
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 Case:
Sunil Babu Panta Vs Nepal Government
This case was related to protection of rights of LGBT which supports development.

Constitutional provisions:
- Article 50- Directive principles
- Article 51- State policy and obligation
This directs and guides the government to focus on public oriented development activities.
Aparthied was abolishes by the signing of the imancipation proclamation and the
parliament of India abolished ‘Triple talaq’ system which is obviously a step towards the
development.
Law leads to development, however sometimes development demands lawand so they are
enacted. After the development of the IT sector, Muluki Ain 2074 now has provision for
cyber laws as well. Thus, development in the society and law is inter connected.

Political control
Political control refers to having dominance over the political scenario of a country. Law
vests the power to the public to control politics of a country. It checks political
criminalization.

Acts:
. Right to information (RTI) Act 2064 BS
. Press and publication Act 2009 BS
. Electoral Act 2063 BS
All the above mentioned acts help to ensure transparency, fairness and periodic election
in the country, thus stabilizing politics.

Cases:
Sandeep Parajuli Vs RCCC
The above mentioned case is in regard to checking actions that are inconsistent with the
constitution, showing political control.

Constitutional provisions:
- Article 17( c )- Right to form political arties
- Asticle 2- State power and sovereignty vested on the people
- Part 24- Election Commession (Provision for adult franchise)
- Article 275- Referendum
- Article 100- Provision for vote of confidence and motion of no confidence

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 - Article 101- Impeachment

These provisions ensure people’s participation and supremacy in politics. This also
ensures responsible and eligible people at higher posts.
Besides that, the law fixes the tenure of different people at different posts thus ensuring
stability. So, political control is maintained with the aid of law.

For environmental protection

The surrounding around us consisting of both biotic and abiotic components is called
environment. Law supports sustainable development and helps in environmental
protection.
International conventions by UNFCC like the Kyoto protocol, 1992 and the paris
summit, 2015 have helped to work on issue of global warming, ozone depletion and carbon
footprint.

Acts:
. Environment protection act 2053 BS
. Forest act, 2049 BS
. Aquatic animal protection act, 2049 BS

Case:
Surya Pd. Sharma Dhungel Vs Godawari marble factory
This case dealt with right to life (right to clean environment, Artc. 30 at present) which
helps in environmental protection.

Constitutional Provision:
- Article 30: Right to clean environment
- Article 46: Right to constiyutional remedies
This helps to ensure clean healthy environment for all citizens.
The ministry of forest and environment reserves right to establish various national
parks, wildlife reserves and sanctuary. Law also recognizes hunting and proaching is
illegal activities and has criminal procedure against it. Thus, law helps in protecting
environment.

To maintain peace and order

Peace is a state of harmony and tranquility. Law helps to manage disputes and maintains
order in the society.
“The ultimate goal of law is to maintain peace and order in the society”
-Thomas Hobbes

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 Acts:
. Contract act,2056 BS
. Domestic borrowings act, 2044 BS
These acts prevent and resolve disputes establishing peace and order in the country.

Case:
Madhav Kumar Basnet Vs Nepal Government
The above mentioned case is for the protection of press freedom which brings transparency
and establishes order in the society.

Constitutional provision:
- Part 28- National security
- Article 51 (a)- Policies relating to national security and national unity.
These provision ensure peace and order in our country.

Various agreements like signing of the NAM in 1961 A.D, Tripatite agreement 2007
BS, Comprehensive peace agreement 2063 BS has helped to restore peace in the
country.
UN peace keeping force is an international organization that helps to establish peace
worldwide. Nepal has laws that provision that different bodies of army and police that
help to maintain peace. Thus, law helps to protect peace and maintain order.

Protection of weaker section

Weaker section refers to the socially, economically and politically backward group of
people. Law protects their rights.
“Law is the king of kings with whose aid even the weaker may prevail over the stronger.”
-Vedas

Acts:
. Social welfare act, 2049 BS
. Social reform act, 2033 BS
Acts as such promote the welfare of the weaker section

Case:
Mira K Dhungata Vs His Majesty Government
This case deals with equality of women thus protecting rights of weaker group

Constitutional provisions:
- Article 38- Right of women
- Article 18- Right to equality

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 - Article 39- Right of child
- Article 40- Right of Dalit
- Article 41- Right of senior citizen
- Part 27- Other commission
-National women commission
- National Dalit commission
- National Inclusion commission
- Indigenous Nationalities commission
- Tharu commission
- Muslim commission
- Madhesi commission
- Article 24- Right against discrimination abd untouchability
This helps in protecting minorities, marginalizes, backward groups and indigenous.
Our law provision for reservation ‘quota’ since law is based on equality. So, the under-
privileged are protected.

Guarantee of rights and duties

Law helps to protect citizen's demand and enforces certain obligations at the same time.

Acts:
. Human Rights Commission Act, 2053 BS
. Cicil Rights Act, 1955
These acts help to protect rights of the citizens.

Case:
Annapurna Rana Vs Kathmandu District Court
The above mentioned case dealt with right to privacy ensuring people’s fundamental rights.

Constitutional Provisions:
- Part 3- Article 16 to 46 Fundamental rights
- Article 133- Jurisdiction of supreme court
- Article 48- Duties of citizens
This helps to protect rights and duties and also has procedure to its retirement. Thus,
law provisions and protects rights and enforces duty to its citizens.

For social control

Law helps in controlling a society formally. It honors the rightful deeds and punishes the
guilty.

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 Acts:
. Bonded Labour Prohibition act, 2058 BS
. Social Reform act, 2033 BS
Such acts help to abolish malpractice of society such as kamaiya and hali pratha. This helps
in social control.
Law helps to maintain balance between individual, social and state’s interest on the basis
of the utilitarian theory of Bentham.
“Law is a means of social engineering”
-Ruscoe Pound

Case:
Nepal Government Vs Balkrishna Dhungel
This case deals with criminal procedures. Thus punishing guilty and controlling
conducts of a society.

Constitutional provisions:
- Article 42- Right to social justice
- Article 43- Right to social security
These right ensures proper conduct in a society.

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