Jurisprudence and Legal Theories · Chapter 10
Study notes aligned to the official NEB syllabus.
Justice is the reason law exists. It is also the reason courts are set up. A legal system may have clear rules. It may have a sovereign and sanctions. But in the end we judge it by one test. Does it do justice? That is, does it give each person his due? Does it settle disputes fairly? This unit answers three things. First, it explains what justice means and its main kinds. Second, it describes how courts actually give justice in civil and in criminal matters. Third, it explains public prosecution. That is the way the state itself takes up the job of bringing offenders to justice.
Justice (न्याय) means giving every person his due. It also means treating like cases alike. It is the goal that a legal system exists to serve. The classical account goes back to Aristotle. He divided justice into two kinds.
The first is distributive justice. This is about sharing out benefits and burdens fairly. It covers honours and resources too. Each member of society should get his due share. This is mostly the job of the legislature and the state. A scholarship scheme is a clear example. Distributive justice says scholarships should go to those who qualify. The rule must be fair and equal for all. A tax system is another example. The burden of tax should fall on people according to their means. So benefits and burdens are shared on a fair rule. They are not handed out by favour.
The second is corrective justice. This is about setting right a wrong between two parties. When one person injures another, the balance is upset. Corrective justice restores that balance. It does this by compensation or by punishment. This is mostly the job of the courts. Suppose one person damages another's property. Corrective justice makes the wrongdoer pay for the loss. This restores the balance that the wrong had upset.
Justice is also spoken of as natural justice. This is the least procedural fairness the law demands. It has two simple rules. The first rule is that no one shall be a judge in his own cause. This is the rule against bias. The second rule is that both sides must be heard (audi alteram partem). Both parties must get a chance to speak before a decision is made. Here is an example. Suppose a boundary dispute is decided by a judge. But the judge himself owns the neighbouring land. That decision breaks natural justice. The same is true if one party is never allowed to present his side. The decision offends natural justice even if it looks correct on paper.
The administration of justice is the process of giving justice. The state does this through its courts. The courts apply the law to settle disputes and punish wrongs. This process is divided into two parts. One is civil administration. The other is criminal administration. In Nepal justice is given through a hierarchy of courts. The Constitution of Nepal 2015 sets up the Supreme Court, the seven High Courts and the seventy-seven District Courts. Appeal lies from the lower courts upward. This way, errors can be corrected.
Civil administration of justice (देवानी न्याय सम्पादन) is how the courts settle private disputes. It deals with the private rights of individuals. The court settles the dispute and awards the right remedy. It covers civil matters like contract, property and partition (अंशबण्डा). It also covers family relations, inheritance and compensation. These are governed largely by the Muluki Civil Code 2074. A civil case is begun by the wronged party. This party is the plaintiff (वादी). The plaintiff files a plaint against the defendant (प्रतिवादी). The aim is not to punish. The aim is to redress the wrong. The court enforces the right. It awards compensation or restitution. Or it declares the rights of the parties.
An example shows the pattern. Suppose A agrees to sell his land to B. A takes the price. But then A refuses to register the transfer. B is the plaintiff (वादी). B files a civil case against A, the defendant (प्रतिवादी). B asks the court to enforce the contract. Or B asks for compensation. The court does not try to send A to prison. It tries to put right the wrong between the two parties. It does this by forcing performance or awarding damages.
In a civil case the burden of proof lies on the party who claims a fact. The standard is the balance of probability. This means the more likely case wins. B succeeds if his version is shown to be more likely than not. The court must follow the rules of natural justice. It must hear both sides. It must decide on the evidence and the law. It must give a reasoned judgment. That judgment can be enforced by execution. It is also open to appeal to a higher court.
Criminal administration of justice (फौज्दारी न्याय सम्पादन) is how offences are dealt with. The state prosecutes. The courts try the accused. The guilty are punished. It deals with crimes. A crime is a wrong against the state and society. Crimes are defined and punishable under the Muluki Penal Code 2074. Examples are theft, assault and murder. A criminal case is brought by the state against the accused. This is because a crime is treated as a wrong against the whole community. It is not seen as a wrong against the victim alone.
Consider a theft. Suppose A steals B's motorcycle. The wrong is not treated as a private loss to B only. It is treated as an offence against society. So the case is prosecuted in the name of the state. It is not prosecuted by B personally. The aim is punishment, such as imprisonment or fine. The aim is also to correct the offender and protect society.
The consequences of a criminal case are grave. So criminal justice has strong safeguards. The accused is presumed innocent until proved guilty. The burden of proof lies on the prosecution. Guilt must be proved beyond reasonable doubt. This is a higher standard than the balance of probability used in civil cases. So in the theft case the state must prove A's guilt to that strict standard. If a reasonable doubt remains, A is acquitted. The accused has the right to a fair hearing. He has the right to defend himself. This fits the right relating to justice guaranteed by the Constitution of Nepal 2015. That Constitution also forbids punishing a person for an act that was not an offence when it was done.
Public prosecution (सरकारी अभियोजन) is the running of criminal cases on behalf of the state. The state's law officers conduct the case in court. The victim does not do it privately. A crime is a wrong against society. So the state takes on the duty of prosecuting the offender. This way, enforcement does not depend on the victim. It does not depend on the victim's money, courage or willingness. This protects the weak. A poor victim may not be able to chase a powerful wrongdoer. But he is not left helpless. The state carries the prosecution for him.
In Nepal public prosecution is led by the Office of the Attorney General (महान्यायाधिवक्ताको कार्यालय). This office is set up under the Constitution of Nepal 2015. The Attorney General is the chief legal adviser of the Government of Nepal. He is the highest officer who represents the government in the courts. The Government Attorneys (सरकारी वकिल) work under that office. They decide whether to file charges. They then conduct the prosecution of criminal cases on behalf of the state.
Here is an example. The police investigate the theft of B's motorcycle. They send the file forward. It is the Government Attorney who decides what to do next, not B. The Government Attorney looks at the evidence. He decides whether to charge A. He then argues the case in court. Public prosecution serves three purposes. It makes sure offenders are brought to justice in the public interest. It keeps prosecution impartial and free from private revenge. And it puts the decision to prosecute in the hands of a responsible public authority. That decision is taken on the strength of the evidence. It is not taken on the wishes of an angry victim.