Jurisprudence and Legal Theories · Chapter 1
Study notes aligned to the official NEB syllabus.
In its widest sense the word law (कानुन) means a rule of conduct that is binding. We often speak of the laws of nature, the laws of health or the laws of grammar. But these are only patterns or guides. They are not law in the strict sense. In jurisprudence the word law has a narrower meaning. Law is the body of rules of human conduct that the state recognises and enforces. A rule becomes a legal rule only when the authority of the state stands behind it. This is what separates it from a moral rule or a custom. If a legal rule is broken, a legal consequence follows.
An example makes this clear. Suppose a shopkeeper in Pokhara borrows money and refuses to repay it. The moral rule "pay your debts" condemns him. The social custom of keeping your word also condemns him. But these rules cannot by themselves force him to pay. Now suppose the law of contract under the Muluki Civil Code 2074 recognises the loan. The creditor (the lender) may sue. The court may order repayment. The state's machinery may then seize the debtor's property to satisfy the debt. The same conduct that was only a moral failing now carries a legal consequence. That consequence is what makes the rule a rule of law.
Jurists have defined law in different ways. The analytical jurist John Austin said law is the command of the sovereign backed by a sanction. In his view it is a general order given by the political superior to the political inferior. It is enforced by the threat of some evil or penalty. For Salmond, law is the body of principles that the state recognises and applies in giving justice. The historical jurists saw law as the expression of the shared spirit of a people. The sociological jurists saw it as a tool for ordering social relations. Each definition shows one face of the same thing. Taken together they tell us something simple. Law is a set of binding rules. The state makes or recognises these rules. The courts apply them. The state's authority enforces them. In Nepal the highest such rule is the Constitution of Nepal 2015. Article 1 declares the Constitution to be the fundamental law of the land. Any other law that goes against it is void to the extent of the conflict.
Jurisprudence (विधिशास्त्र) is the science or philosophy of law. The word comes from two Latin words. Juris means "of law" and prudentia means "knowledge" or "skill". So the word literally means knowledge of law. Jurisprudence does not study one single branch of law, such as contract or crime. It studies law in general. It asks about the nature of law, its sources, its purpose and the basic ideas found in every legal system. These ideas include rights, duties, property, possession, ownership and personality.
Its nature can be summed up in a few points. Jurisprudence is a theoretical and abstract study. It is not a set of practical rules to apply to a given case. It is a general study. It looks at the principles behind all law rather than the detail of one statute. It is an expanding and dynamic subject. It grows as new problems and new ideas arise. It also has no fixed boundary of its own. It draws on philosophy, history, sociology and economics. It is often called "the eye of law" and "the grammar of law". It gives the lawyer the concepts and the clear thinking needed to understand the whole of law.
The difference between jurisprudence and the ordinary branches of law can be shown by an example. A student of contract learns one rule. An offer and an acceptance together make an agreement. A student of jurisprudence asks a wider and earlier question. What is a right? What is the duty that answers to it? Think of a court in Nepal deciding a partition (अंशबण्डा) dispute under the Muluki Civil Code 2074. The court applies the rules of that code. But the ideas it uses are deeper. They are ownership, possession, legal person, right and duty. These are the very concepts that jurisprudence analyses. In this sense jurisprudence stands behind every branch of law. It is like grammar behind a language. A person can speak without studying grammar. But grammar is what makes the speech make sense.
The scope of jurisprudence is very wide. This is because it takes the whole of law as its field of study. It examines the basic concepts that run through every branch of law. These include rights and duties, ownership and possession, property, personality, liability and legal wrong. It studies the sources from which law springs. These are legislation, custom and precedent. It asks about the relation between law and the state. It also asks how law relates to justice, to morality and to society. It studies law through its different schools. These are the natural, analytical, historical, sociological, realist and economic schools. Each school views law from a different angle. Because of this breadth, jurisprudence is not one single department of law. It is the general study that lies behind all of them.
The width of the field is clear from one example. Take the idea of ownership. In property law it decides who may sell a plot of land. In criminal law it decides whether taking a thing is theft under the Muluki Penal Code 2074. After all, you cannot steal your own goods. In the law of succession it decides what passes to the heirs when a person dies. One concept thus reaches into property law, criminal law and family law alike. It is jurisprudence, not any one of those branches, that isolates the concept and studies it in the abstract. That is why its scope is said to be as wide as law itself.
Law is important because organised social life is impossible without it. It maintains order and peace. It replaces private force with authorised rules. It resolves disputes through recognised and binding procedures. So people turn to the courts rather than to violence. It protects rights and freedoms. In Nepal the fundamental rights in Part 3 of the Constitution of Nepal 2015 are guaranteed and can be enforced in court. It controls crime by defining offences and attaching punishment, as the Muluki Penal Code 2074 does. It provides certainty, letting people plan their affairs in advance. It is an instrument of social justice and change. It limits the power of government by binding the state to the rule of law. And by protecting property and contracts it supports economic life.
Consider a simple boundary dispute between two neighbours over a strip of land. Without law, the stronger party might simply seize the strip by force. The weaker party would have no help except counter-force. The quarrel could then spread and break the peace of the whole locality. With law, the dispute is taken to the District Court. It is decided on the evidence and on the Muluki Civil Code 2074. It is settled by a binding judgment that the state will enforce. The same law that forbids the neighbours from fighting also protects each of them. It secures the true owner's title. It tells both of them in advance where they stand. This is how law keeps the peace, protects rights and gives the certainty on which ordinary life and economic activity depend.
A sanction (दण्ड / अनुशासन) is the force or consequence by which the law is enforced. It is the evil or penalty that follows the breaking of a legal rule. Austin treated sanction as an essential part of law. He argued that a command is law only because a sanction from the sovereign follows disobedience. Sanctions may be penal. These are punishments such as imprisonment or a fine under the Penal Code. Or they may be civil. These are compensation, damages or restitution. The presence of a state-backed sanction is what separates a legal rule from a mere moral or social rule. A moral rule's only sanction is conscience or social disapproval.
The working of a sanction can be seen in a pair of examples. Suppose a person commits theft. The Muluki Penal Code 2074 attaches a penal sanction. On conviction he may be imprisoned or fined. It is the threat and the use of that evil that back the rule against theft. Now suppose instead that a person fails to deliver goods he has sold. Here the sanction is civil. The buyer may recover the price or damages under the Muluki Civil Code 2074. In both cases the rule bites because the state stands ready to impose a consequence. Contrast a purely moral rule, such as the duty to be grateful to a helper. Breaking it brings only the disapproval of conscience and society. There is no court and no penalty. That is exactly why it is a moral rule and not a rule of law.