Jurisprudence and Legal Theories · Chapter 2
Study notes aligned to the official NEB syllabus.
Law is one single body of rules. But to study it and use it, we divide it into types. Each division uses a different test. One test asks what the law does. Another asks whose interests it protects. Another asks what kind of wrong it deals with. Another asks in what area it works. These divisions are not sealed boxes. The same law can fall into more than one class. Still, the divisions help a student see the shape of a legal system clearly. This unit covers four main divisions. They are substantive and procedural law, public and private law, civil and criminal law, and national and international law.
The first division asks what the law does. Substantive law (सारवान कानुन) is the law that defines our actual rights and duties. It tells us what our rights and obligations really are. It also tells us what counts as a wrong. Think of some simple rules. A person has a right to his property. A contract must be performed. Theft is an offence that carries a set penalty. All of these are rules of substantive law. In Nepal the Muluki Civil Code 2074 and the Muluki Penal Code 2074 are mostly substantive. They lay down rights, duties and offences. For example, the Civil Code says an owner may enjoy and transfer his land. It also says a seller must deliver the thing he sold. These are substantive rules.
Procedural law (कार्यविधि कानुन) is also called adjective law. It is the law that tells us how those rights and duties are enforced. It controls the machinery and the steps of a court case. It says how a case is filed. It says how evidence is presented. It says how the court proceeds. It says how a judgment is carried out. The rules on limitation (हदम्याद, the time limit for filing a case), pleadings, jurisdiction, evidence and appeal are all procedural. In Nepal the main procedural laws are the National Civil Procedure Code 2074 and the National Criminal Procedure Code 2074.
Substantive law and procedural law work together closely. Substantive law gives the right. Procedural law gives the method to claim that right in court. A right with no way to enforce it is almost useless. Here is an example. Suppose A has lent Rs 500,000 to B. B refuses to repay. Substantive law (the Civil Code) tells us A has a right to be repaid. It also tells us B has a duty to pay. Procedural law does a different job. It tells A which court to go to. It tells him how to draft and register his plaint (the written claim). It tells him how to prove the loan. After judgment, it tells him how to recover the money from B's property. Without this second kind of law, the first would be an empty promise.
The second division asks whose interests are mainly involved. It also asks who the parties are. Public law (सार्वजनिक कानुन) governs the relationship between the state and individuals. It also covers how the organs of the state are set up and what powers they have. Constitutional law, administrative law and criminal law are branches of public law. In these, the state is a party. Public interest is directly at stake. In Nepal the leading public-law document is the Constitution of Nepal 2015. It sets up the legislature, the executive and the judiciary. It divides powers between the federal, provincial and local levels. It guarantees fundamental rights in Part 3. Here is an example. Suppose a citizen files a writ in the Supreme Court. He claims a government act has violated his fundamental right. This dispute is public law. It is the citizen against the state.
Private law (निजी कानुन) governs the relationship between private individuals. Here the state acts mainly as a judge, not as a party. The law of contract, property, family and succession is private law. Much of the Muluki Civil Code 2074 is private law. Here are two examples. Two neighbours argue over the boundary of their fields. A landlord and a tenant argue over rent. Both are matters of private law. The state lends its courts to settle the quarrel. But the state is not itself a party. So the difference is simple. In public law, the state protects the public interest. In private law, the state only gives individuals a place to settle their own disputes.
The best-known division is civil and criminal law. Civil law (देवानी कानुन) deals with the private rights and remedies of individuals. It covers disputes over contract, property, partition (अंशबण्डा), family relations and compensation. A civil case is brought by the person who was wronged. That person is the plaintiff (वादी). It is brought against the other side, the defendant (प्रतिवादी). The usual remedy is not punishment. It is compensation, restitution, or a declaration of rights. The standard of proof is the balance of probability. This means the more likely case wins. For example, a builder fails to finish a house he agreed to build. The owner sues him under the Muluki Civil Code 2074 for compensation. The court only asks one thing. Is it more likely than not that the contract was broken?
Criminal law (फौज्दारी कानुन) deals with offences against the state and society. These include theft, assault and murder. They are defined in the Muluki Penal Code 2074. 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. The aim is punishment, such as imprisonment or a fine. The standard of proof is higher. Guilt must be proved beyond reasonable doubt. The reason is that the liberty of the accused is at stake.
Sometimes one act creates both civil and criminal liability. Suppose a driver carelessly knocks down a pedestrian. The state may prosecute him for causing hurt under the Penal Code. Separately, the injured person may sue him under the Civil Code for compensation. So one act gives two kinds of liability. This shows clearly how the civil branch and the criminal branch run side by side.
The last division asks in what area the law works. National law (राष्ट्रिय कानुन) is also called municipal or state law. It is the law made and enforced inside one state. It applies to the persons and things within that state's territory. It is backed by the authority of the state. It is applied by the state's courts. It is enforced by the state's agencies. Nepal's Constitution, codes and statutes are all national law. They are applied through the hierarchy of the Supreme Court, the High Courts and the District Courts. For example, a theft is committed in Kathmandu. A Nepali court applies national law to it, that is, the Muluki Penal Code 2074.
International law (अन्तर्राष्ट्रिय कानुन) is the body of rules that governs relations between states. More and more, it also covers the rights of individuals at the international level. Its sources are treaties, international custom, and general principles that nations recognise. The main difference from national law is enforcement. National law has a sovereign and courts to enforce it. International law has no world sovereign. It has no general court with power to compel states. So it relies mostly on consent, reciprocity and collective pressure. Here are two examples. A boundary treaty between Nepal and a neighbouring state is international law. Nepal's duties under a human rights convention it has ratified are also international law.
This weakness in enforcement led the analytical jurist John Austin to doubt international law. He argued it was not true law at all. He called it positive morality. His reason was that it has no sovereign to command and no court to compel. Today the common view is different. International law is accepted as law of a different and weaker kind. It rests on the agreement and the practice of states.