Jurisprudence and Legal Theories · Chapter 3
Study notes aligned to the official NEB syllabus.
A source of law (कानुनको स्रोत) means the origin of a legal rule. It tells us where the law comes from. It also tells us what gives the rule its binding force. When a judge in a District Court decides a dispute, the rule he applies must come from somewhere. Jurisprudence groups those origins into a few recognised sources. The three main sources are legislation, custom and precedent. Around them stand some smaller sources. These include justice, equity and good conscience, the writings of jurists, and treaty law. The weight of each source has changed over time. Early society lived almost wholly by custom. The modern state makes most of its law by deliberate legislation.
Legislation (विधायन) is law that is made on purpose by a proper authority of the state. The word comes from legis (law) and latum (to make). So it literally means the making of law. Custom seeps up slowly from the habits of a community. Precedent waits for a dispute to reach the courts. Legislation is different. It is law created deliberately and announced in advance.
In a modern state, legislation is the primary and most important source of law. There are several reasons for this.
It carries democratic authority. It is made by the body that represents the people. In Nepal the Federal Parliament enacts the statutes and great codes of the country. The two Muluki Codes of 2074, the Civil Code and the Penal Code, were made in this way.
It is deliberate and purposeful. A new social or economic need may appear. The state can then frame a rule at once to meet it. It does not have to wait for generations while a custom slowly forms.
It is certain, clear and written. A citizen can read the law. He can know it in advance. He can then plan his conduct around it.
It can cancel or amend older law. This includes old custom and even earlier court decisions. Custom and precedent cannot do this.
It also works for the future (prospectively). It binds conduct going forward. It gives people fair notice. It does not punish acts that were lawful when done.
Legislation is of two kinds. Supreme legislation is made by the highest law-making body. No other law-making authority stands above it. The Constitution of Nepal 2015 stands at the very top. Article 1 of the Constitution declares it to be the fundamental law of the land. The statutes of the Federal Parliament rank below it. Subordinate (delegated) legislation is made by a lower authority. That authority acts under powers given to it by a parent statute. Examples are the rules, regulations and bye-laws (नियमावली) that a Ministry frames to work an Act in detail.
Here is a simple illustration. Parliament may pass an Act. The Act lays down the broad policy for, say, the registration of land. The Act then authorises the Government to issue regulations. Those regulations fix the fees, the forms and the office procedure. The Act is supreme legislation. The regulations are subordinate legislation. They are valid only so far as they stay within the authority the parent Act gave. The modern welfare state must regulate trade, labour, health, the environment and much else. Only legislation can supply rules quickly and in the quantity required. That is why it has become the foremost source of law.
Custom (प्रथा) is a rule of conduct that a community has followed for a very long time. It has been followed so long and so uniformly that people now treat it as binding. Custom is the oldest source of law. Early society had no organised legislatures or courts. In that period law was almost wholly customary. It rested on the settled habits of the group. Much modern statute law is really old custom that was later written down and recognised.
Custom does not become law just because people follow it. It becomes a source of law only when the courts recognise and enforce it. The courts do so only if it passes certain essential elements.
An example shows how the tests work. Suppose the people of a locality have used a footpath for generations. The path crosses private fields and leads to a temple. They have used it openly and without dispute. They believe they are entitled to use it. The practice is ancient, unbroken, reasonable and certain. It does not conflict with any statute. A court may then recognise it as a customary right of way.
Now change the facts. Suppose the community began using the path only a few years ago. The custom then fails for want of antiquity. Or suppose the claimed custom would deny a daughter her lawful share of property. That custom fails too. It is unreasonable, and it is contrary to statute. In Nepal many matters of family and property were once governed by custom. Much of that custom has now been absorbed into the Muluki Civil Code 2074. So today the statute governs where the old custom once did.
Precedent (नजिर) is law made by the decisions of the courts. A court decides a case. The principle of law on which the decision rests is called the ratio decidendi (the reason for the deciding). That principle may serve as a rule for deciding similar cases in future. This works through the doctrine of stare decisis. The phrase means "to stand by decided matters". Under it, a decision of a higher court binds the lower courts in the same hierarchy. In Nepal the principles of law laid down by the Supreme Court bind the High Courts and the District Courts. The Constitution of Nepal 2015 gives the Supreme Court's interpretations of law binding force throughout the country.
The reasoning behind precedent is practical. It brings certainty. People and lawyers can predict how a settled point will be decided. It brings consistency and equality. Like cases are treated alike, not left to each judge's whim. It also lets the law grow case by case as new situations arise, with no need to wait for the legislature.
Not everything a judge says is binding. Only the ratio decidendi binds later courts. That is the rule necessary to the decision. A judge may also make passing remarks on points not essential to the case. These are called obiter dicta. They carry only persuasive value, not binding force. Here is an example. The Supreme Court decides that a particular kind of agreement is void. It gives its reason. That reason binds the lower courts in later cases of the same kind. The Court may also add a remark about some different, hypothetical agreement. That remark is only obiter. It does not bind.
Besides the three main sources, law draws on several subsidiary sources.
Justice, equity and good conscience are used by courts to fill gaps. Sometimes no statute, custom or precedent governs a matter. The judge must still decide the dispute fairly. So he decides according to reason and fairness when the written law is silent.
The opinions and writings of jurists (juristic writing) also help. They explain the law. They arrange it into a system. They help it develop. Lawyers cite them in argument. They are persuasive, but they do not bind the court.
Morality and public opinion shape the content of law over time. Social attitudes change. That change presses the legislature to reform old rules.
International law and treaties can also become a source. A state may accept a treaty and give it effect at home. That treaty can then become part of the national law. In Nepal a treaty to which the state is a party is applied as part of the law of the land, once it is ratified and brought into force.
These subsidiary sources supplement the main ones. They do not displace legislation. Legislation remains foremost in the modern state.