1st Semester Section A

2078/10/21

Group A

1. What are the approaches to Legal Method? How would you observe the importance

of approaches to Legal method for the advancement of Nepalese Legal system? Answer:

Introduction:

The concept of the legal method is a crucial part of the law. The term “Legal Method” is

made up of two terms, “legal” and “method”. “Legal” means something that is related to law

whereas “methods” refers to a procedure or a technique to do something. All in all, the idea of

the legal method is the process or technique to understand and implement the law. In simple

words, legal method is the process of practicing law. It is the method that is used in the field of

law. It enables the study of the way law operates in society and how it is used in the legal field by

lawyers, judges, jurists, and other professionals in the law field.

Approaches to Legal Method:

The concept of the legal method is not limited as it has diverse features. The requirement

of the legal methods varies according to the different situations that it has to deal with. Because

of this, there are several factors that act as approaches to legal methods. Some of the approaches

to the legal method are described below:

Positive vs Normative Approach:

Normative jurisprudence encompasses the general questions about value and law. It deals

with the relations between law and morals, whether the law is as its core moral enterprise,

political obligation, and civil disobedience. Dworkin is the most important proponent of

normative jurisprudence and his most famous argument for the claim that jurisprudence is
normative in the semantic sting. This concept is more concerned with the ends and justifications

that are involved in law as an entire entity and for certain rules.

Legal Positivism involves an analytical and objective approach to the legal order, its

structure, and functions. Value considerations “contaminating irrelevancies” are removed from

the process of investigation of the legal order. “Ought” cannot be deduced from “is”, so that

normative statements may not be inferred validly from merely factual statements. In short, it

refers that the law has to apply to the given fact.

Realist Approach:

Law according to the realist jurist is what officials (judges) do; it is not to be found in and

cannot be deduced from, the mere rules by which those officials are guided. Holmes argues the

life of the law is, essentially experience. The pragmatic and empirical aspects of the law are all

important. Realists have tried to find the difference between the law that is in the books and the

law that is in action and being practiced in the behavior of judges and other legal professions.

Marxist Approach:

Marxism approaches the study of history in order to trace the natural laws which run through all

human history, and for this purpose, it looks not at individuals, but at people. Hence, it is said

that most ideas , especially those connected with the organization of society are class ideas, the

ideas of the dominant class in society, which imposes them on the rest of society

through its ownership of the machinery of propaganda, its control of education and its power to

punish contrary ideas through the law courts and similar measures.

Feminist Approach:

Feminist jurisprudence builds on a certain aspect of this critical steam in legal thought. It

is much more focused and concrete and derives its theoretical force from the immediate

experience of the roles of the legal system in creating and perpetuating the unequal position of
women. Feminists argue that the both structure of lawmaking and the content of the rules of law

privilege men. It has not been made by taking into consideration the problems of women and it

only tends to benefit men. A feminist account of law suggests that we live in a society where

men have used the system to establish economic and community priorities to serve male elites,

while basic social, economic, or even human needs of women are not met. Critical Legal Study

Approach:

Critical Legal Study is also known as CLS. This was first initiated in the year 1977 at the

conference of the University of Wisconsin-Madison. There are several theorists of this approach

but Roberyo Mangaberia Unger, Robert W. Gordon, Morton J. Horwitz, A. Mackinnon, David

Kennedy, and Duncan Kennedy are some of the most well-known. This concept implies a view

of society and informs about the practices and approaches to politics. The scholars of this

approach construct the illegitimacy of the legal order by diminishing laws pretentious to

determinacy, objectivity, and neutrality.

Policy-Oriented Approach:

The idea of a policy-oriented approach is a mixture of the traditions of American legal

realism and the contemporary thought of the social sciences and exhibitions of the common

framework that initiates an inquiry, distinctively identifiable in its coherent and proper approach

to the understanding of the law.

These are some of the major approaches to Legal methods.

Importance for Advancement of Nepalese Legal System:

The legal system is the system that enacts and produces laws for people belonging to a

particular place. The legal system of Nepal is referred to as the Nepalese Legal system which is

mostly based on the approaches of Hindu philosophy. The approaches to legal methods play an

extremely crucial part in the legal system of different countries. They help to improve the system
and prepare it for the changes that society is going through. These approaches to the legal

methods can help to improve and enable the advancement of the Nepalese Legal System in the

following ways:

➔ The approaches to the legal method can help to develop the rules and laws that are

implemented in Nepal.

➔ They help to establish a stronger legal system where justice is put fort as a main agenda

and there is no bias in the justice system.

➔ There is a concept of equity that can be introduced in the justice system which can help

the people belonging to the lower class in society to attain their rights. This is influenced

by the Marxist approach of the legal method.

➔ Using the ideology of the normative approach to legal method, there can be an

incorporation of morality in the laws and implementation of the law that is done by the

Nepalese legal system.

➔ Using the influence of the positive approach to legal method, there can be the usage of

analysis in the procedures of law that takes place in the Nepalese legal system.

➔ Using the feminist approach of legal method, there can be the betterment of women and

their representation in the law. Women in Nepal are discriminated against even to this

day. In a lot of areas, there are still many practices that deprive them of their basic

rights. The incorporation of the feminist approach in the Nepalese legal system helps to

eradicate such incidents with proper rules and laws for women.

➔ An establishment of a proper legal system that analyzes the problem of the justice system

properly and works to repair it using different policies which are influenced by a policy-

oriented approach.
Conclusion:

Hence, the concept of the legal method is an extremely crucial part of the law. The

approaches to legal method such as positive and normative approach, realist approach, Marxist

approach, feminist approach, critical legal studies approach, and policy-oriented approach fall

under the process of legal method. These approaches help in the construction of a better legal

system and have helped in the advancement of the Nepalese legal system.

Group B

3. What is legal reasoning? Explain the utility of Legal Reasoning in Legal method.

Answer:

Introduction:

The concept of legal reasoning is an extremely crucial part of the law. It is the procedure

to create an argument. It is a process that helps in the utilization of the facts that are present in a

case and the logic that can be used for it. It helps to form reasons for the case and also derives

certain conclusions that can be implemented in the case. The idea of legal reasoning holds a lot

of importance in the field of law because its utilization is the main reason behind the outcome of

a certain case.

Stanford Law School has defined the concept of legal reasoning as “the methods

that lawyers use to apply laws to facts in order to answer legal”.

Methods of Legal Reasoning:

Legal reasoning is an indispensable part of a legal decision that is conducted within or

outside a court. It guides the legal professional involved in a case to make decisions with the help

of proper fact analysis and the usage of logic. The utility of legal reasoning is vast in the field of

law. It has a lot of uses and carries a lot of importance. There are two major methods of legal

reasoning which help to derive the utility of legal reasoning:

 ➢ Deductive Legal Reasoning

➢ Inductive Legal Reasoning

Deductive Legal Reasoning:

Deductive legal reasoning is the concept where a conclusion is derived based on two

other propositions. In this, the conclusion of a given case is derived from the facts that are

relevant to it. For example, If we know that China is geographically bigger than India and Russia

are geographically bigger than China then ultimately we also know that Russia is geographically

bigger than India. This is the concept of deductive reasoning where two propositions, China is

bigger than India and Russia being bigger than China have derived a conclusion that Russia is

bigger than India.

Some forms of Deductive Reasoning are:

Syllogism: In this type of reasoning, the derivation of conclusion or judgment happens

with the help of two types of fact. Two propositions of the case are used to derive a conclusion.

It is divided into:

➔ Major Premise

➔ Minor Premise

➔ Conclusion

Deductive reasoning comes with some merits and demerits which will be mentioned and

discussed below:

Merits:

➢ The concept of deductive reasoning is simple to execute and understand. ➢ There is

clarity in the case when there is a usage of deductive reasoning as it helps in the eradication

of generalization.

➢ This can be used as an alternative to an experiment in the scientific field.

 ➢ It is a universally accepted method of reasoning.

Demerits:
➢ A high amount of logic is required to execute this method.

➢ The assumptions made in deductive reasoning should be valid in a strict manner.

➢ This concept is limited as it cannot be used in various fields.

Inductive Legal Reasoning:

Inductive legal reasoning is the opposite of deductive reasoning where there is a clear

analysis of fact and usage of logic. In inductive legal reasoning, the conclusion is derived from

the assumption that is being made about a situation based on the decisions and happenings of

other similar scenarios in the past.

There are certain merits and demerits of inductive reasoning, which have been discussed

below:

Merits:

➢ Inductive reasoning can be used as a substitute in certain cases.

➢ The things that have been discussed in inductive reasoning can be verified very easily

which is helpful for instant verification of conclusion drawn.

➢ The procedure required for inductive reasoning can take into consideration the changing

nature of the different situations.

➢ This approach of legal reasoning is very realistic as it takes into consideration the

activities that happened in real life.

Demerits:

➢ The concept of inductive reasoning is simple to understand but the application process is

difficult to execute.
 ➢ There is a decent chance that the reasoning that is derived using this method can be

inaccurate as it is mostly based on assumptions.

➢ There is a high possibility that there can be bias while acquiring a judgment for a case

while using inductive reasoning.

➢ This method can be more implacable in the field of science rather than the social or legal

field because of its nature.

Utility of Legal Reasoning:

➔ There are several uses or utility of legal reasoning which are mentioned below:

➔ Legal reasoning can help legal professionals to come to a conclusion. ➔ Legal

cases can be solved with the help of legal reasoning.

➔ In particular, in cases, where there is no current law or precedent that can be used to

either defend or argue against a client, then the concept of legal reasoning, can be used as

a substitute.

➔ A proper analysis of a case using an analytical approach is ensured with the help of legal

reasoning.

Conclusion:

Hence, the concept of legal reasoning is simple yet it plays an extremely crucial part in

the judgment that is made regarding different cases. The utility of legal reasoning in the legal

method is quite reflective from the points adobe. They have explained how different types and

aspects of legal reasoning, both inductive and deductive are used in the field of law.

4. What is professional ethics? Why it is important for the legal professions?

Answer:
Introduction:
Ethics is considered to be an important part of philosophy which is the study where there

is an analysis of the general nature of morals along with particular choices regarding morals that

are made by individuals in their life and in the relationship that they execute with other people. A

profession is one field where there is a lot of importance of ethics. A profession is an occupation

that a person has in their life and the work they do in a certain field. By combining the two

aspects, the concept of professional ethics is made which is a set of ethics that is required to be

followed by professionals in a certain field.

Definition:

APA Dictionary of Psychology has defined professional ethics as “rules of

acceptable conduct that members of a given profession are expected to follow.”

Immigration Advisors Authority of New Zealand has described it as “principles that

govern the behavior of a person or group in a business environment. Like values, professional

ethics provide rules on how a person should act towards other people and institutions in such an

environment”.

With the above definitions, it can be derived that professional ethics are a set of conduct

that are imposed towards professionals and enables them to be within morality. Importance of

Professional Ethics in the Legal Profession:

Professional ethics is a crucial part of the legal field. Black’s Law Dictionary has defined that,

“Professional ethics for lawyers is legal ethics. It is the standard of minimally acceptable

conduct within the legal profession, involving the duties that its members owe one another, their

client and the court”. It is a set of rules that are required to be followed by all the people that

are involved in the legal profession such as lawyers, judges, jurists and so. on. There are a lot of

instances where there is a requirement for legal workers to work with people who do
not match their beliefs. For this, the idea of professional ethics is implemented in order to avoid

any issues and problems.

Different professionals in the field of law find importance in practicing professional

ethics which are mentioned below:

Importance for judges:

➢ Guidance is provided to judges to carry out decisions for the judiciary with the help of

codes and avoids any unnecessary distractions for them.

➢ Judges can execute independent, competent, and ethical judiciary. The propositions of the

legal ethical codes help the judges to make their decision freely and based on the

information of the cases only. This helps to enable a fair chance of justice for everyone

and the judge can execute an ethical judiciary.

➢ Judges are able to be in an environment that is independent of legislative and executive

which enables them to give a fair decision to the court.

➢ Prejudice and bias are reduced from the side of the judges because of ethical codes that

they have to follow in the court.

➢ Restriction to judges to make a judgment when there is an involvement of personal circle

to avoid any bias and prejudice.

Importance for Lawyers:

➢ There is a conflict of interest that can arise between the prosecutor and their client which

can cloud their judgment towards the case which can be removed with the help of ethical

codes.

➢ The lawyers are guided with the help of ethics as they can go in a particular direction

without any distraction.

 ○ For example, if a lawyer is defending an accused and if that accused is going

beyond the moral ideologies of the lawyer, there can be a personal agenda that

may come into play which can make the lawyer hesitant for the case. In this

scenario, legal ethics can be taken into consideration for the prosecutors to avoid

such hindrances in their work.

➢ Legal ethical codes disable lawyers from having a personal attachment with the client

with the several restrictions that it provides.

➢ Misuse of power is also avoided with the help of ethical codes for lawyers. The lawers

cannot use the power that they have for their personal benefit or misuse it for any other

advantages.

Conclusion:

Hence, ethics are a crucial factor for all professions and especially the legal profession. It

helps to bring a sense of control in the activities of the people who belong to the legal profession.

This enables the work of law and justice to be executed in a proper manner. In the context of

Nepal, there are several codes of conduct that have been established by the Bar Council for the

legal professionals to follow, so that they will be able to stay within their limits and execute their

duty properly.

Group C

5. Law making process in Nepal

Answer:

Law-making power is vested in the legislature. It is the process of making new rules and

laws that can be implemented in a country. The sole function of a legislature is to make laws. It

is the right that is constitutionally guaranteed to the legislature. Legislature can change the law

with the proper majority of people and amend or alter the law in accordance with the right and
power provided by the constitution. Nepal currently follows a parliamentary system. In order to

make law in current legislation, a bill is presented to the parliament. After that, the bill will be

discussed by the members of the parliament. There any changes or alteration that is wanted by

the members of the parliament is made or appealed to. Then the process of amendment is done to

the bill. The house then sends the bill to the parliamentary committee if any changes are made. If

the bill is passed by the house in the majority, it is approved by the Chairman of the house. It is

then sent for the approval of the president. Then finally the president signs the bill and the bill is

turned into an act.

This procedure is described shortly in the points below:

➔ The government presents a bill to the legislature on the recommendation of a particular

ministry.

➔ The bill is discussed by the respective members of the legislature.

➔ A majority of vote is passed on to the bill by the members of the legislature. ➔ With a

simple majority, the bill is passed and signed by the president with approval then turned

into an act or a law.

Hence, the above-mentioned points dictate the law-making process of Nepal.

7. Differentiate between Doctrinal and Non-Doctrinal Research.

Answer:

Introduction:

Legal research is one of the most crucial elements of legal methods. It is the process

where information is found and identified in order to support legal decision-making. It is the

procedure where there is a finding of relevant law and ideologies in order to assist a certain case

or a certain problem. The concept of legal research can be broadly classified into doctrinal legal

research and non-doctrinal legal research.

Differences:

The differences between the two concepts can be seen signified in the table below:
Doctrinal Legal Research Non-Doctrinal Legal Research

Doctrinal legal research is also known as pure

Non-doctrinal legal research is also known as

theoretical research and library research.

scientific research, socio-legal research, or

empirical research.

It is the type of research that has been carried

It is the research that allows the researcher to

out on a legal proposition or proposition by

perform inter-disciplinary research where he

analyzing the existing statutory provisions

analyses law from the perspective of other

and case by applying the reasoning power.

sciences and employs these sciences in the

formulation of law.

It is concerned with the analysis of legal

It is concerned with the discovery and

doctrine and how it has been developed and

interpretation of facts.

applied.

It is simple to research directed towards

It relies on the application of the scientific

finding a specific statement of the law or a

method a harnessing of curiosity.
 more complex and in-depth analysis of legal

reasoning.

It is not systematic and has more freedom. It is systematic and controlled.

Uses traditional sources of data. Uses more advanced sources of data.

It is a theoretical study. It is a practical study involving fieldwork.

Sources of doctrinal research are books, case Conclusion:

Sources of non-doctrinal research are
laws, statutes, past judgments, and legal
questionnaires, interviews, and observations.
reports.

Hence, the two types of legal research methods: doctrinal and non-doctrinal have a lot of

differences among them which are mentioned in the table above.

8. Bar- Bench Relations in Nepal

Answer:

In a general sense, Bar refers to the lawyers. It is a collective form of lawyers who are

licensed to practice law in court. On the other hand, the bench refers to the members of the

judiciary that is the judges. It is a crucial part of the court where the j udges are sitting within the

official capacity it has.

The cordial relationship that occurs between the advocates and judges is known as the

bar-bench relation. The main objective of the Nepalese judicial system is to provide justice to all
the people who present in front of it. It wants to attain justice for all the parties who are involved

in a case and for society in general. A mutual understanding between the members of the bar and

bench will help to achieve that objective of the Nepalese judicial system. Failure by any one

party to perform their respective duty will result in the lack of proper practice of law. So, it is

essential for both the Bench and the Bar to work in cooperation with diligence and effectiveness

with the motive to serve the justice system.

The Bar and the Bench play crucial roles in the administration of justice. The judges help

to administer the law with the assistance of the lawyers. The lawyers are considered to be the

officers of the court so they help the judges to assist the administration of law. They need to keep

a respectful mindset towards the court considering the dignity of the judicial office. This is

essential for the survival of society. A sense of mutual respect is needed to be maintained inside

the court between the Bench and the Bar. The relationship between the two is extremely unique

and crucial for the development of law in Nepal.

If this relationship is filled with any discrepancy, then a hazardous outcome may surface

as well. Without any mutual respect between the two, the lawyers and the judges neither can

execute their duties. They won’t be able to do their assigned roles despite having the capacity to

do so. It can lead to the collapse of the whole legal system of Nepal as well. The utility and

effectiveness of lawyers can only be determined with a proper judge and the powers of a judge

can also be executed only with lawyers. Therefore, there is a need for a good relationship to be

included between the Bar and the Bench.

Hence, in the context of Nepal, the relationship between Bar and the Bench has a lot of

value as the two designation compliments each other and helps to carry out the duty that each

other have.

9. Legal aid in Nepal

Answer:

Legal aid is the concept where there is a provision of legal counsel or representation

provided to people who are unable to afford or reach out to it. It can be defined as “Free or

inexpensive legal service provided to those who cannot afford to pay full price for the legal

services”. The main aim of legal aid is to secure equal access to the justice system for, and

protect the legal rights of, indigent individuals who are unable to retain private counsel, and to

inform them about their rights and obligations under the existing law.

In the context of Nepal, the Constitution of Nepal, 2015, ensures legal aid as a fundamental

right to access justice. It is not a help, facility, or charity of any kind or a sympathetic aspect

provided by the government. According to the Legal Aid Act, 2054, Section 3, “Legal Aid”

means Legal Aid to an indigent person. Under this act and the term also includes counseling

and other legal services such as correspondence pleadings preparation of legal documents and

proceedings in the courts or offices on the behalf of an indigent person.

Some of the major provisions of Legal Aid is Nepal is mentioned below: ➔ Civil

Rights Act, 1955 has recognized the right to consult a lawyer of choice and be

represented before the courts by a lawyer.

➔ The three-tier courts of Nepal; the Supreme Court, High Court, and District Court all

have been providing legal aid through stipendiary lawyers and they are paid a certain

amount of remuneration, monthly.

➔ District Legal Aid Committees (DLAC’s) are established under the Legal Aid Act, 1990

which help to provide legal aid in Nepal.

➔ The government has started to provide legal aid from the year 2055 B.S and it was

initiated in all the districts from 2066 B.S.

 ➔ Nepal Bar Association provides legal aid in Nepal. It has also formed different

organizations in all the courts present in Nepal to provide legal aid with the support of

different international partners such as the European Commission and Norwegian Bar

Association that funded legal aid projects in Nepal.

➔ Different civil society organizations and advocacy forums like Access to Justice Project,

ILF, PPR Nepal e.t.c have been providing legal aid to people in Nepal.

Hence, the situation of legal aid in Nepal is still progressing. There are a lot of

organizations which are governmental and non-governmental that provide legal aid in Nepal to

the people who cannot afford it.