Contents: Meaning, definition and nature of law, sources of law, kinds of law, national and international law, public and private law , civil and criminal law, substantive and procedural law
Past Board Questions
- Write down any five sources of law. (1 Marks, 2018)
- Give a brief defintion of criminal law. (1 Marks, 2018)
- Distinguish between the civil and criminal law. (5 Marks, 2018)
- Briefly set light on the primary sources of law. (5 Marks, 2018)
- “Law is an instrument of social conduct.” Explain this statement according to the meaning and nature of law. (10 Marks, 2018)
- What is defintion of law by Salmond? (1 Marks, 2019)
- What do you mean by precedent? (1 Marks, 2019)
- What is the meaning of Criminal law? (1 Marks, 2019)
- Distinguish between the public and private law. Support your answer with example. (5 Marks, 2019)
Introduction
Law is one of the most important systems that organizes and regulates human society. Wherever people live together—whether in a family, community, or nation—there must be certain rules to maintain order, protect rights, and ensure justice. These rules are collectively known as law.
Without law, society would face disorder, conflict, and injustice. Law therefore acts as a framework within which individuals can live peacefully while respecting the rights of others.
| Law can be defined as a system of authoritative rules and principles established or recognized by the state to regulate human conduct in society, maintain order, protect rights, and ensure justice through enforceable sanctions. |
In simple, law can be defined also as the body of binding rules created and enforced by a governing authority to control behavior and maintain social order.
These rules are recognized by the state and are enforceable through institutions such as courts, police, and administrative authorities. A person who violates these rules may face legal consequences or punishment.
Because of law, individuals know what they are allowed to do and what they are prohibited from doing.
Nature / Characteristics / Features of Law
- Promulgation of Law
For a rule to be considered law, it must be properly promulgated or officially declared by a competent authority.
Promulgation means that the law must be publicly announced and made known to the people which ensures that the law becomes public knowledge, allowing individuals to regulate their conduct in accordance with it. - Law Follows the Principle of Natural Justice
Law must follow the principles of natural justice, which ensure fairness and impartiality in legal processes.
Two basic principles of natural justice are:- No person should be a judge in their own case.
- Both parties must be given a fair opportunity to be heard.
These principles ensure that law operates fairly and protects individuals from arbitrary decisions.
- Reflection of Social Interests
Law is the rule of conduct of society which reflects the values, needs, and interests of society.
Many laws are created to protect public welfare, social stability, and collective interests.
For example:- Labor laws protect workers.
- Environmental laws protect natural resources.
- Consumer protection laws protect buyers.
Thus, law is closely connected with social development and public interest.
- Equality
One of the essential features of law is equality before the law.
This means:- Every individual is treated equally in the eyes of the law.
- Law does not discriminate on the basis of status, wealth, or power.
The concept of equality ensures fairness and justice in society.
- Dynamic and Changeable Character
Law is dynamic rather than static. As society evolves in response to social, economic, political, and technological developments, laws must adapt accordingly. New legislation, amendments, and judicial interpretations allow the legal system to respond effectively to emerging societal needs.
- Law as a Rule of Human Conduct
Law prescribes standards of behavior that govern the conduct of individuals and institutions within society.
It defines rights, duties, obligations, and liabilities, thereby providing a framework within which social relations operate.
Thus, law acts as a standard for acceptable social behavior.
- Backed by the Authority and Power of the State
Law derives its binding force from the authority of the state. The state enforces legal rules through institutions such as courts, police, and administrative bodies. Because law is supported by this coercive power, individuals are legally obligated to comply with it. - Supremacy of Law
Law occupies a supreme position in the governance of a state. Both citizens and government authorities are subject to the law and must operate within its limits.
This concept forms the basis of the rule of law, which ensures that power is exercised according to established legal principles.
Simply, this means:- No person is above the law
- All individuals and institutions, including government authorities, must act within the framework of law
- Territorial Application
Law generally operates within a specific territorial jurisdiction. The laws enacted by a state apply to individuals and institutions within its geographical boundaries, unless otherwise specified by international agreements or special legal provisions. - Territorial Application
Law generally operates within a specific territorial jurisdiction. The laws enacted by a state apply to individuals and institutions within its geographical boundaries, unless otherwise specified by international agreements or special legal provisions. - Sanction and Enforceability
Another essential nature of law is that it is supported by sanctions. If a person violates a legal rule, the state has the authority to impose penalties such as:- fines
- imprisonment
- compensation or damages
These sanctions ensure effective compliance with legal rules.
- Institutional Framework
Law functions through an organized institutional structure consisting of:- legislatures (which make laws)
- courts (which interpret laws)
- executive authorities (which enforce laws)
This institutional framework ensures the systematic implementation of law.
Sources of Law
Secondary / Subsidiary / Persuasive Source of Law
Secondary sources of law are those sources that do not directly create binding legal rules but helps in the interpretation, development, and understanding of law. They support and influence the primary sources.
The main secondary sources include:
- Decisions by Foreign Court
Decisions of foreign courts constitute a subsidiary or persuasive source of law. When courts encounter new, complex, or unclear legal issues, they may examine the judgments of courts in other foreign jurisdictions that have addressed similar matters.
Although such decisions do not possess binding authority, they may influence judicial reasoning by providing comparative legal insights, interpretations, and solutions developed in other legal systems.
Courts usually rely on foreign judgments when:
- there is no clear domestic precedent
- the law is ambiguous or incomplete
- the issue involves comparative or international legal principles
For Example: A court in Nepal may sometimes refer to decisions of courts in countries such as the United Kingdom, the United States, or other jurisdictions when dealing with similar legal principles, especially in areas like constitutional law, human rights, or commercial law.
- Juristic Writings
Juristic writings refer to the books, articles, commentaries, and opinions written by legal scholars (jurists) about law.
These writings do not create law directly, but they often guide courts and lawmakers in interpreting and developing legal principles. Courts often consult such writings when the law is uncertain, ambiguous, or incomplete.
- Rules of Morality
Rules of morality are principles that guide human behavior based on ethical standards of right and wrong accepted by society.
Although moral rules are not legally enforceable, they often influence the development and interpretation of law. Many legal principles are derived from moral values such as justice, fairness, honesty, and good faith.
Courts may sometimes consider moral principles when interpreting laws, especially in cases where the law is unclear or silent. - Religious Books
Religious books such as sacred texts have historically played an important role in the development of law. In many ancient societies, legal rules were derived from religious doctrines and scriptures.
Examples include:- Vedas and Dharmashastra in Hindu law
- Qur’an and Hadith in Islamic law
- Bible in Christian legal traditions
Even today, religious texts may influence certain areas of law, particularly in matters related to family law, marriage, and inheritance.
- Equity
Equity refers to the principles of fairness, justice, and good conscience that are applied by courts to supplement and correct the rigid application of strict legal rules.
The concept of equity developed to ensure that law is applied in a fair and just manner, especially in situations where strict legal rules might produce an unjust or unreasonable outcome. The main purpose of equity is to mitigate the harshness and rigidity of strict legal rules and to ensure that justice is achieved in particular circumstances.
In simple terms, equity means fairness or natural justice in the administration of law.
For Example A:
Suppose A builds a house on land believing it belongs to him, but later it is discovered that a small portion of the land actually belongs to B due to a technical mistake in documents. Under strict law, B could demand that the entire construction on that part be demolished, even if it causes huge loss to A.
However, applying the principle of equity, the court may decide a fair solution, such as ordering A to compensate B for that portion of land instead of demolishing the building.
This decision ensures fairness and avoids unnecessary hardship, which is the main objective of equity.
For Example B:
Suppose a guest books a hotel room for several nights and pays in advance, but due to a serious family emergency or medical issue, the guest has to cancel the booking at the last moment. According to the strict cancellation policy, the hotel may have the right to keep the entire advance payment.
However, applying the principle of equity and fairness, the hotel may decide to refund part of the payment or allow the guest to reschedule the booking for another date.
This decision reflects fairness and good conscience, which are the core ideas of equity, ensuring that rules are applied in a reasonable and just manner rather than in a rigid way. - International Law
International law refers to the set of rules, principles, and norms that govern relations between sovereign states, international organizations, and, in some cases, individuals. While it is binding between countries that consent to it (through treaties, conventions, or recognized customs), it generally does not automatically have binding force within a domestic legal system unless adopted into national legislation.
As a secondary or persuasive source of law, international law guides domestic courts when interpreting statutes, resolving disputes with international elements, or filling gaps where national law is silent or ambiguous. Courts may refer to international treaties, conventions, customary international law, or general principles recognized internationally to make decisions that are consistent with global norms and principles of justice.
For Example: A Nepali court deciding a refugee rights case may refer to the UN Refugee Convention to guide its interpretation of national laws. Though not binding, it helps the court apply international standards fairly, showing how international law acts as a persuasive source.