NATURE AND SOURCES OF LAW

DEFINITION OF LAW
 The term 'law' includes different things in
different societies.
 The term 'law' means a set of rules. The rules
made by the authorities to reform the conduct of
a man.
 Law in general sense has different connotations
for different people like law as a set of rules
relating to business for business people, law as a
means to convict the criminals for policemen etc.
DEFINITION OF LAW
 Salmond defines law as the body of principles
recognized and Iapplied by the state in the
administration of justice
 According to Austin, "law is the aggregate of
rules set by men as politically superior or
sovereign to men as politically subject. In other
words, law is the command of the sovereign
DEFINITION OF LAW
 According to Duguits's definition of law, it is
essentially and exclusively a social fact. Law
is also defined in relation with the society.
The aim of the social institutions is to
safeguard and further it. The basis of the
validity of law is the popular acceptance and
not the will of the sovereign.
 Roscoe Pound defines law as a social
institution to satisfy social wants. This
approach is very valuable.
DEFINITION OF LAW
 Inthe same way Holmes and Frank, law is
a body of principles slowly evolved by the
decision of the courts.
DEFINITION OF LAW
 Law is a social institution. In this picture of law,
there are the following elements:
 Law in the modern sense of the term presupposes
state.
 The state makes or authorizes to make,
recognizes or sanctions rules, which are called
law.
 For the rules to be effective there are sanctions
behind them.
 These rules (called law) are made to serve some
purpose. The purpose may be a social purpose or
it may be simply to serve some personal ends of a
despot.
SALIENT FEATURES
 The definition of law must cover all aspects. Different
laws for different kinds of activities – no uniform
laws.
 Equal treatment
 Law treats all equally. This means the person on the
same situation are treated equally except in certain
exceptional cases for instance child, women etc.
 Sovereign authority
 Law is enacted by the sovereign or supreme power of
the state with full power against the person or body of
persons.
 Sanction
 Law has ultimate power behind it. The power of this
kind is called sanction due to which law is obeyed.

SALIENT FEATURES
 Justice
 Law delivers justice. Law and justice are co-related.
In absence of either other ceases its existence.
 Role of Law
 Law secures justice and maintains peace and security
in the society. It regulates social behaviour
 Dynamism
 Law is a dynamic concept. It keeps on changing and
adapts itself with the changes in the society. The
necessity of new laws arises along with the process of
development of a state. It is never static.
THE NATURE OF LAW
 The law regulates human behaviour.
 The law covers political, economic and social system
of every civilized society.
 Every law has a purpose. It basically aims to serve the
purpose for which it is enacted.
 The rule of law prescribes that the law treat all the
people equally. Nobody is above law.
 It works for the welfare of the society.
 Law is enforceable.
 The objective of law is to bring peace in the society
 The ultimate aim of the law is to deliver justice to the
people
SOURCES OF LAW
 Legislation
 Precedent
 Agreements / Conventions
 Customary Law
 Miscellaneous Sources
CHARACTERISTICS OF NEPALESE LEGAL
SYSTEM
 Influence of religion
 Western influence

 Lack of originality

 Influence of non-formal laws

 Influence of common law system

 Traditional and conventional

 Independence of judiciary

 Complex and obsolete

 Lack of modernism
LEGAL SYSTEM OF THE WORLD
Continental Legal System
 Law of Romano Germanic Family is also called
continental legal system or civil legal system or
code law system.
 It is the oldest legal system. Though it was
originated in Europe, it has been adopted in
many other non-European countries.
 Under this system the laws are all written and
codified.
 Primary sources of law are legislation
(constitution, treatises, code law, parliamentary
acts, delegated legislations, ordinance,
administrative directive) and secondary sources
are customs and conventions, legal writing of
jurists and principles of laws
CONTINENTAL LEGAL SYSTEM
 Public law
It establishes the relation between the state and
individuals and also interrelations between the
government and the state. It also controls and
directs the activities of the administrative
officers. It defines the limit of the act, rules,
policies, directions etc. The disputes under public
law are settled by the administrative courts.
 Private law
It settles the disputes between the individuals
and defines the relation between them. Regular
courts settle the disputes among the individuals
under the scope of private law.
COMMON LAW SYSTEM

 Common law system is also one of the major legal

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