NEB Class 11 · Past paper
The complete NEB Class 11 2080 exam paper for Jurisprudence and Legal Theories, all 19 questions with solved model answers.
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Define the term 'sanction'. / दण्ड लाई परिभाषित गर्नुहोस् ।
A sanction (दण्ड) is the penalty or evil that the state attaches to the breaking of a legal rule. It is the enforcing part of law. It takes the form of punishment or compensation. It follows disobedience and makes a rule binding rather than merely advisory.
What is jurisprudence? / विधिशास्त्र भनेको के हो ?
Jurisprudence (विधिशास्त्र) is the science or philosophy of law. The word joins two Latin words. Juris means "of law" and prudentia means "knowledge". So the word means knowledge of law. Jurisprudence does not study the detailed rules of any one branch. It studies law in general. It asks what law is, where it comes from and what ideas run through the whole of it. Its main features are these.
It is rightly called "the eye of law". It gives the clear concepts and reasoning with which all other branches of law are understood and applied.
Why is law important? Give any two reasons. / कानुन किन महत्त्वपूर्ण छ? कुनै दुई कारणहरु दिनुहोस् ।
Law is important because organised social life cannot exist without it. It is the framework that lets people live, work and deal with one another in security. Its importance can be shown in these points.
In short, law protects the weak from the strong. It gives certainty to daily life. It holds both citizens and government to a common standard. This is why no ordered society can do without it.
Explain the scope of jurisprudence. / विधिशास्त्रको क्षेत्रहरु व्याख्या गर्नुहोस् ।
Jurisprudence is the science of law. Its scope is as wide as law itself. It does not confine itself to any single branch. It studies law in general. Its field can be set out under several heads. Each one can be shown by an example.
First, jurisprudence studies the fundamental concepts that are common to every legal system. These are ideas such as rights and duties, ownership and possession, property, personality, liability, legal wrong and sanction. They appear in contract, property, crime and constitutional law alike. Jurisprudence isolates these concepts and analyses them clearly. This is why it is called the grammar of law. Take the single idea of ownership. In property law it decides who may transfer a plot of land. In criminal law it decides whether a taking is theft under the Muluki Penal Code 2074, since a person cannot steal his own goods. In succession it decides what passes to the heirs on death. One concept thus reaches across three branches. It is jurisprudence that examines it in the abstract.
Second, it studies the sources of law. These are the ways in which legal rules come into being. Legislation is enacted by the law-making body. Custom is recognised by the courts. Precedent is built up by judicial decisions. In Nepal, for example, the great codes such as the Muluki Civil Code 2074 are legislation. The principles laid down by the Supreme Court bind the lower courts as precedent.
Third, it asks about the nature and purpose of law itself. What is law? Why do people obey it? What ends should it serve? The different schools of jurisprudence answer these questions differently. The analytical school asks what law is as it stands. The natural school asks what law ought to be. The historical school traces how law grows out of a people's life. The sociological school examines how law works in society. The realist school looks at what courts actually do. The economic school links law to the economic structure of society.
Fourth, jurisprudence studies the relation of law to the state, to justice, to morality and to society. This includes how law is enforced and how far it should reflect morality. It asks, for example, why some moral wrongs are left to conscience while others are made legal wrongs. Ingratitude is left to conscience. Cheating is made a legal wrong under the Muluki Penal Code 2074.
Its concerns are this broad. So jurisprudence provides the concepts, the method and the critical outlook with which every other branch of law is understood and improved. It is the general study that lies behind all particular law. It is as wide in its field as law itself.
What is meant by Substantive Law? / सारवान कानुन भनेको के हो ?
Substantive law (सारवान कानुन) is the branch of law that lays down the substance of legal relations. It sets out the rights, duties, liabilities and wrongs that persons have. It answers one question: what is the law on this matter? Its chief features are these.
In Nepal the Muluki Civil Code 2074 and the Muluki Penal Code 2074 are mostly substantive. They give rights and define offences. For example, A sells his motorcycle to B. The Civil Code rule is that the seller must deliver the thing and the buyer must pay the price. That rule is substantive law.
Substantive law is contrasted with procedural (adjective) law. Procedural law controls the method of enforcement. It covers how a case is filed, tried and decided. It also covers how a judgment is carried out. These rules are laid down in the National Civil and Criminal Procedure Codes 2074. The link between the two is simple. Substantive law gives the right. Procedural law gives the means to enforce it. A substantive right has little value unless there is a procedure to realise it in court.
Compare between national law and international law. / राष्ट्रिय कानुन र अन्तरराष्ट्रिय कानुनबीच तुलना गर्नुहोस् ।
National law and international law are two kinds of law. They are told apart by the area in which they work. Comparing them shows the nature of each.
National law (राष्ट्रिय कानुन) is also called municipal or state law. It is the law made and enforced inside one state. It applies to all persons and things within the state's territory. It comes from the constitution, statutes, custom and precedent of that state. It is applied by the state's courts and enforced by its executive. In Nepal, national law includes the Constitution of Nepal 2015, the Muluki Civil and Penal Codes 2074, and other statutes. These are applied through the hierarchy of the Supreme Court, the High Courts and the District Courts. For example, a contract is broken in Pokhara. The injured party sues under the Muluki Civil Code 2074 in a Nepali court. That court can decide the matter and have its judgment carried out.
International law (अन्तर्राष्ट्रिय कानुन) is the body of rules that governs relations between states. More and more, it also covers the rights and duties of individuals at the international level. Its sources are treaties and conventions, international custom, and the general principles of law that civilised nations recognise. A boundary agreement between Nepal and a neighbour is a matter of international law. So are Nepal's duties under a human rights convention it has ratified.
The points of comparison are these. (a) As to subjects: national law binds individuals within a state. International law binds mainly states. (b) As to source: national law flows from a clear law-making authority. International law flows mainly from the agreement of states. (c) As to enforcement: this is the deepest difference. National law is backed by a sovereign and by courts with compulsory power. International law has no world sovereign and no general compulsory court. It relies instead on consent, reciprocity and collective action. Suppose Nepal and another state disagree over a treaty. No court has automatic power to compel either of them. The matter is resolved by negotiation. Or it goes to a tribunal, but only if both states agree. For this reason Austin denied that international law was law in the proper sense. He named it positive morality.
Despite this contrast, both are systems of binding rules. Both aim at order and justice. One works inside a state. The other works among the community of states. Today international law is generally accepted as true law. It is simply weaker in enforcement than national law.
Write down the meaning of Custom. / प्रथाको अर्थ लेख्नुहोस् ।
Custom (प्रथा) is a long-established practice of a community. The community has followed it so long that it is now accepted as binding. It is enforced as law when the courts recognise it. It is the oldest source of law. Early society had no legislatures and no courts. In that time law was almost wholly custom. Much modern statute is simply old custom written down.
A mere habit does not become law. A practice becomes a valid legal custom only if it fulfils certain essential elements.
Here is an example. The residents of a village have used a path across private land for generations. They use it to reach a water source. They use it openly and peacefully. They believe they are entitled to do so. The practice is ancient, continuous, reasonable and certain. A court may then recognise it as a customary right of way. In Nepal much customary family and property practice has since been codified in the Muluki Civil Code 2074. So the Code now governs where the old custom once ruled. Any custom that conflicts with the Code will not be enforced.
How is legislation the primary source of law? Explain with examples. / विधायन कसरी कानुनको प्राथमिक श्रोत हो ? उदाहरण सहित व्याख्या गर्नुहोस् ।
Legislation (विधायन) is law made consciously and deliberately by a proper organ of the state. This sets it apart from custom, which grows up slowly, and from precedent, which the courts build case by case. In a modern welfare state, legislation has become the primary and most important source of law. We can explain its primacy under several heads. Each head has an example drawn from Nepal.
First, legislation carries democratic authority. It is enacted by the body that represents the people. In Nepal the Federal Parliament makes the law of the country. The two great codes were enacted in this way. These are the Muluki Civil Code 2074 and the Muluki Penal Code 2074. So they speak with the authority of the people's elected representatives. They do not rest on the mere habit of a community or the opinion of a single judge.
Second, legislation is deliberate and purposive. The state can see a new social or economic need. It can then frame a rule to meet that need at once. Custom grows slowly over generations. Precedent must wait for a case to arise. The modern welfare state must regulate many things. It must regulate trade, labour, public health, the environment and banking. Only legislation can supply rules quickly and in the quantity required. For instance, a new area of economic life may need regulation. Parliament can pass an Act within a single session. No custom could achieve the same in that time.
Third, legislation is certain, clear and written. So people can know the law in advance. They can then plan their conduct around it. It is also prospective. It operates for the future. It gives fair notice. It does not punish conduct that was lawful when it was done. A citizen can read the Muluki Penal Code 2074. He can learn exactly what is an offence and what penalty it carries. Unwritten custom cannot give that certainty.
Fourth, legislation is supreme over the other sources. A statute can cancel or amend an existing custom. It can also override an earlier judicial precedent. Custom and precedent cannot override a statute. The Muluki Civil Code 2074 codified matters of family and property. In doing so it displaced much older custom that had governed those matters. At the very top of this structure stands the Constitution of Nepal 2015. Article 1 of the Constitution declares it to be the fundamental law of the land. It is supreme legislation. Ordinary statutes rank below it. Subordinate (delegated) legislation ranks below them again. Examples are the rules and regulations (नियमावली) made under a parent Act. They are valid only so far as they stay within the authority the parent Act conferred.
Here is the whole structure working together. Parliament may enact an Act. The Act sets the broad policy on some matter. The Government may then issue regulations under that Act. Those regulations fill in the procedural detail. A dispute may then arise. The courts will apply the Act and its valid regulations. They will not apply any older custom to the contrary. The statute leads. The delegated rules serve it. Custom yields to both.
For all these reasons, legislation is the primary source of law in Nepal and in every modern state. Custom and precedent serve to supplement and apply it. They do not rival it. The welfare state must regulate a vast and changing range of social and economic life. No other source can match legislation for authority, speed, certainty and reach.
'Law is the command of the sovereign.' Justify the statement in two sentences. / कानुन सम्प्रभुको आदेश हो । यस कथनलाई दुई वाक्यमा प्रमाणित गर्नुहोस् ।
This statement states Austin's command theory. Law is a general command issued by the sovereign, the determinate political superior whom society habitually obeys. It is justified because such a command is binding. It is backed by a sanction, the penalty that the state imposes for disobedience.
Mention any two differences between fundamental rights and legal rights. / मौलिक हक र कानुनी हकबीचका कुनै दुईवटा फरकहरू उल्लेख गर्नुहोस् ।
Fundamental rights (मौलिक हक) and ordinary legal rights are both legal interests that the law protects. But they differ in their source, their strength, and the way they are enforced.
Here is an example. Suppose an ordinary law denied one group the equal protection of the law. A person affected could get it struck down by writ. She would argue it breaks the fundamental right to equality. A merely contractual or statutory right is different. The next ordinary Act could simply remove it. This shows why fundamental rights are the stronger and more secure class of rights.
Imagine a neighbour is often criticised for his activities. How would you advise him regarding the moral and legal duties of a citizen so that his wrong activities would be corrected? / मानौं तपाईको कुनै एक छिमेकी ... नागरिकका नैतिक कर्तव्य र कानुनी कर्तव्यहरुबारे के कस्ता सल्लाह सुभाव दिनुहुन्छ ?
I would advise my neighbour by explaining the two kinds of duty that a citizen owes. I would show him why both matter. This would help him correct his conduct.
First, I would set out his legal duties (कानुनी कर्तव्य). These are the duties that the law of the state imposes and will enforce. A citizen must obey the law of the land. He must respect the rights and property of others. He must not do acts that the Muluki Penal Code 2074 treats as offences, such as causing hurt, theft or nuisance. He must also perform his lawful obligations, such as paying his debts and taxes. I would warn him plainly. Breach of a legal duty is a legal wrong. It carries a sanction. For instance, suppose his activity amounts to a nuisance or causes hurt to a neighbour. A case may then be filed against him. He may face compensation or punishment. The courts can be moved against him.
Second, I would explain his moral duties (नैतिक कर्तव्य). These are the duties that conscience and society impose, even where the law is silent. Examples are honesty, good neighbourliness, helping those in need, keeping his word, and not giving needless offence. Their sanction is conscience and social reputation, not the court. But they are what earn him the respect and trust of the community.
Finally, I would advise him on the surest path. He should match his conduct to both kinds of duty. He should keep within the law, to avoid legal liability. He should also observe moral duty, to keep the goodwill of his neighbours. A citizen who honours both legal and moral duty will not be criticised. He will live in peace with society.
Give the definition of corporeal property. / भौतिक सम्पतिको परिभाषा दिनुहोस् ।
Corporeal property (भौतिक सम्पत्ति) is property that has a physical body. It can be seen and touched. Examples are land, houses, vehicles and money. It is the ownership of material things. It is different from incorporeal property, which is made up of intangible legal rights.
What is property? Explain the modes of acquisition and transfer of property. / सम्पति भनेको के हो ? सम्पति प्राप्ति र सम्पति हस्तान्तरणका तरीकाहरुबारे व्याख्या गर्नुहोस् ।
Property is a central institution of civil law. This question has two parts. First it asks what property means. Then it asks how property is acquired and transferred. The answer follows the paper's 2 + 6 shape.
(a) Meaning of property. Property (सम्पत्ति) is a relationship recognised and protected by law. It is the relationship between a person and the things and valuable rights that he may own. Its heart is a bundle of rights. The owner can possess the thing. He can use and enjoy it. He can take its produce. He can keep others out. He can also dispose of it by sale, gift or will. For example, the owner of a shop may trade from it. He may keep its earnings. He may keep others out. He may sell it or leave it by will. Property may be movable or immovable. It may be corporeal or incorporeal. It may be public or private. In Nepal property is governed by the Muluki Civil Code 2074.
(b) Modes of acquisition and transfer. The modes of acquisition are the ways a person first comes to own property. Jurisprudence groups them under four heads.
The first is possession. Here a person takes possession of a thing that belongs to no one. Such a thing is called res nullius (अस्वामिक वस्तु). An example is a wild fish caught in an open river. Another is land that is truly ownerless.
The second is prescription. This means gaining or losing a right through the passing of time. For example, long and open and continuous possession of land can ripen into ownership over time.
The third is agreement. Here a person acquires property by a deal between parties. Examples are sale, gift, exchange and mortgage. Suppose A buys a house from B. A acquires it by agreement.
The fourth is inheritance (succession). Here a person acquires the property of someone who has died. The property passes to the heirs.
The transfer of property is the passing of ownership from one person to another. It happens in two ways.
The first way is by act of the parties. The owner transfers the property by his own choice. He may do so by sale, by gift (दान), by exchange or by mortgage. He may also do so by a will that takes effect on his death.
The second way is by operation of law. Here ownership passes without the owner's voluntary act. It happens on inheritance at death. It happens on partition (अंशबण्डा) of joint family property. It also happens on insolvency and court execution.
In Nepal the Muluki Civil Code 2074 regulates both. It recognises acquisition by purchase, gift, inheritance and partition. It also lays down a rule for immovable property. A transfer of immovable property must be made in writing. It must also be registered (राजीनामा पारित / दर्ता) to be valid and to pass title. Suppose A sells his land to B. Ownership is treated as changing when the deed is registered. This gives the transfer certainty. It gives public notice. It helps prevent fraud. Now compare movable property, such as a watch or a cycle. It generally passes by simple delivery.
So the law does two things. It lists the ways property is gained. It also lays down the formalities for transfer. The most important formality is the registration of land. Through these rules, ownership is transferred in a lawful way. The whole scheme shows one thing. Property in law is a secure and orderly institution. It is acquired and passed on by recognised methods, not by mere physical holding.
What is ownership? State the differences between possession and ownership. / स्वामित्व भनेको के हो ? भोग र स्वामित्वका फरकहरु लेख्नुहोस् ।
Ownership and possession lie at the heart of the law of property. This question has two parts. It asks first what ownership is. It then asks how ownership differs from possession. The answer follows the paper's 2 + 6 shape.
(a) Meaning of ownership. Ownership (स्वामित्व) is the complete and ultimate right of a person over a thing. It is the largest bundle of rights the law allows in property. The owner holds many rights. The owner can possess the thing. The owner can use and enjoy it. The owner can take its produce. The owner can exclude others. The owner can dispose of the thing by sale, gift or will. And the owner can pass it to his heirs.
The jurist Austin described ownership in three ways. He said it is indefinite in use. He said it is unrestricted in disposition. And he said it is unlimited in duration.
Ownership is also the residual right. This means the ultimate right stays with the owner. The owner may grant lesser rights, such as a lease or a mortgage. Even then, the ultimate right stays with him. It revives when those lesser rights end. For example, suppose A lets his house to B for a term. Then B has possession. But A remains the owner. A's full rights revive when the lease ends.
In Nepal ownership is governed by the Muluki Civil Code 2074. This Code requires a registered deed for the transfer of immovable property.
(b) Differences between possession and ownership. Possession and ownership are related but distinct. The key point is simple. Ownership is the right. Possession is the fact.
In short, every owner is entitled to possession. But not every possessor is an owner. Possession is the outward sign. Ownership is the underlying right. Long, open and continuous possession may even ripen into ownership through prescription. This shows how closely the fact and the right are bound together in the law.
Who is a legal person? Write down. / कानुनी व्यक्ति को हो ? लेख्नुहोस् ।
A legal person (कानुनी व्यक्ति) is any subject other than a human being that the law gives personality to. The law treats it as able to have rights and duties. The commonest example is a company or corporation. It can own property, make contracts and sue and be sued in its own name, separately from its members.
State the relationship between law and morality in two sentences. / कानुन र नैतिकताबीचको सम्बन्ध दुई वाक्यमा उल्लेख गर्नुहोस् ।
Law and morality are closely related. Much law has grown out of morality, and law is obeyed most readily when it agrees with the moral sense of the people. Yet they remain distinct. Law is enforced by the state through sanctions, while morality is enforced only by conscience and social disapproval.
Analyze the difference between law and morality. / कानुन र नैतिकताबीचको फरकलाई बिश्लेषण गर्नुहोस् ।
Law (कानुन) and morality (नैतिकता) are two systems of rules that guide human conduct. They are closely connected. Much of the law has grown out of morality, and the two overlap in forbidding wrongs such as killing, theft and cheating. To analyse the difference between them, several points of contrast must be drawn out. Each is shown here with an example.
As to source. Law is made or recognised by the state. It draws its authority from the political sovereign. Morality comes from conscience, religion, custom and the opinion of society. Morality has no single author. The ban on theft is law because the Muluki Penal Code 2074 enacts it. The sense that one ought to repay a kindness is morality, which no statute declares.
As to enforcement. Law is enforced by the state through its courts. Its breach attracts a sanction, such as punishment or compensation. Morality has no such machinery. Its only sanction is the voice of conscience and the disapproval of society. A thief may be imprisoned. An ungrateful man suffers only the loss of other people's respect.
As to subject matter. Law looks mainly to the outward conduct of a person. It cannot easily reach into the mind. So a mere evil intention that is not acted upon is generally no offence. Morality is different. It judges inner motive and intention as well as outward act. So an evil thought may be a moral wrong, even though it is no legal wrong.
As to certainty. Law is definite, written and uniform throughout the state. Morality is often vague and unwritten. It varies from person to person and from one community to another.
As to scope. Law covers only the part of human conduct that the state has chosen to regulate. It leaves much untouched. Morality covers the whole field of conduct, including matters the law ignores. Here is how the two can part company. A man who refuses to help a stranger in distress does a moral wrong that is no legal wrong. A man who parks where he should not does a legal wrong that is barely a moral one.
As to purpose. Law aims chiefly at order, justice and the smooth regulation of society. Morality aims at the inner goodness and perfection of the individual.
The analysis shows that law and morality share a large common ground and support each other. Yet they are distinct. Law is the external, enforceable minimum that the state insists upon. Morality is the fuller, inner standard that conscience sets. A good legal system keeps the two in harmony. Then the law commands the moral support of the people. At the same time, the law gives morality's most important demands a definite and enforceable form. Nepal's Constitution does exactly this. It raises shared moral beliefs, such as equality and human dignity, into enforceable fundamental rights.
What is meant by public prosecution? / सरकारी अभियोजन भनेको के हो ?
Public prosecution (सरकारी अभियोजन) is the way criminal cases are prosecuted in the courts on behalf of the state. The victim does not prosecute privately. The basis is simple. A crime is a wrong against the whole community. So the state takes on the duty of bringing the offender to justice. Its main features are these.
Here is an example. The police investigate a theft and forward the file. It is the Government Attorney who decides whether to charge the suspect, not the victim. The Attorney looks at the evidence. He then conducts the case in court. So the prosecution is carried out fairly. It is carried out in the name of society as a whole.
What things do you consider while implementing civil administration of justice in your society? Make a list. / तपाईको समाजमा देवानी प्रशासनिक न्याय सम्पादन गर्नु पर्यो भने तपाई के के कुरामा ध्यान दिनुहुन्छ ?
To carry out civil administration of justice (देवानी न्याय सम्पादन) in society, I would keep the following things in mind. Here they are as a list of essentials.
Here is an example. Suppose there is a partition (अंशबण्डा) dispute between brothers. I would first make sure the court has jurisdiction. I would hear both sides. I would weigh the evidence of entitlement on the balance of probability. I would apply the Muluki Civil Code 2074. Then I would award each his due share by a reasoned judgment open to appeal. Attending to these points settles civil disputes fairly. It settles them lawfully and peacefully.