NEB Class 11 · Past paper
The complete NEB Class 11 old-course exam paper for Jurisprudence and Legal Theories, all 10 questions with solved model answers.
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What is law? What are the major sources of law? Explain. / कानून के हो ? कानूनका मुख्य स्रोतहरु के के हुन् ?
Law, in the sense used in jurisprudence, is the body of rules of human conduct that the state recognises and enforces. It differs from moral and customary rules in one key way. The authority of the state stands behind it. So its breach carries a legal consequence. Suppose a person borrows money and refuses to repay. Mere morality condemns him but cannot compel him. Now suppose the law of contract under the Muluki Civil Code 2074 applies. The creditor may sue. The court may order and enforce repayment. That enforceable consequence is what makes the rule a rule of law.
Jurists have described law from different angles. Austin defined law as the command of the sovereign backed by a sanction. Salmond defined it as the body of principles that the state recognises and applies in giving justice. We can combine these. Law may be described as the set of binding rules. The state makes or recognises them. The courts apply them. By these rules conduct is regulated and disputes are settled. In Nepal the supreme such rule is the Constitution of Nepal 2015. Its Article 1 declares it the fundamental law. So any inconsistent law is void to the extent of the conflict.
The major sources of law are the places from which legal rules arise. There are three main ones. Legislation (विधायन) is law consciously made and enacted by the competent law-making authority. In a modern state like Nepal the Federal Parliament enacts statutes and codes. The Muluki Civil Code 2074 and the Muluki Penal Code 2074 are examples. Legislation is the primary and most important source. Its merit is that it is deliberate, certain and written. The state can make new law at once to meet new needs. People can know the law in advance. For example, Nepal codified its civil and criminal law in 2074. This replaced large bodies of older custom with clear written rules.
Custom (प्रथा) is a practice long and uniformly followed by a community and accepted as binding. It becomes law when the courts recognise it. For this it must be ancient and reasonable. It must be continuous. It must not be contrary to statute or public policy. Much of Nepal's older family and property practice was customary before it was absorbed into the codes. Precedent (नजिर) is the law made by the decisions of the courts. When a higher court decides a point of law, that decision binds lower courts in similar later cases. In Nepal the principles laid down by the Supreme Court bind all subordinate courts. This gives the law consistency and lets it grow case by case.
There are also subsidiary sources. Justice, equity and good conscience are applied by courts to fill gaps where no statute, custom or precedent governs. The writings of jurists are another. In some matters international law and treaties apply once given domestic effect. Of all these, legislation is today the foremost. Custom and precedent supply and supplement it. Thus law is the body of state-enforced rules. It springs chiefly from legislation, custom and precedent. Legislation is the primary source in the modern state of Nepal.
'Law is a body of principles applied by the state.' Do you agree with this statement? / 'कानून राज्यद्वारा कार्यान्वयन गरिने सिद्धान्तहरुको समूह हो', यो भनाईसँग तपाई सहमत हुनुहुन्छ ?
Yes, this statement is broadly correct. It captures Salmond's view that law is the body of principles that the state recognises and applies in giving justice. The statement is right on two counts. First, law is indeed a body of principles. It is not a random collection of orders. It is a systematic set of rules and principles arranged by authority, with the constitution at the top. In Nepal, for example, the Constitution of Nepal 2015 stands above ordinary statutes such as the Muluki Civil Code 2074. The code in turn stands above the rules and regulations made under it. So the whole forms an ordered body. Second, it is applied by the state. A rule becomes legal, as distinct from moral, because the state recognises it and enforces it through its courts. Nepal does this through the hierarchy from the Supreme Court down to the District Courts. A creditor's claim, for example, is enforced because the state lends its courts and its power of execution to it.
The statement may, however, be qualified. It stresses the enforcement side of law. It says less about the sources from which law grows, such as custom and the common spirit of the people. The historical and sociological schools would stress these. Law is not created out of nothing by the state. Much of it is recognised by the state from custom and social life. Nepal's codes, for instance, absorbed older customary practice. With that qualification, the statement is acceptable. Law is best described as the body of principles made or recognised, and applied, by the state.
What are the essential elements for a valid custom? / वैध प्रथाका आवश्यक तत्त्वहरु के के हुन् ?
A court will recognise and enforce a custom as law only if it satisfies the following essential elements.
A practice that meets all these tests acquires the force of law. A practice that fails any of them will not be enforced. Take an example. A community claims a custom of grazing cattle on a particular common field. Suppose the practice is ancient, unbroken and reasonable. Suppose the whole community has followed it peaceably and as of right. The court may then uphold it.
Now change the facts. Suppose the claimed custom is only a few years old. It fails for want of antiquity. Or suppose the claimed custom would deny a woman a share of property. The Muluki Civil Code 2074 entitles her to that share. The custom then fails on two grounds. It is unreasonable, and it is contrary to statute. The elements thus act as a filter. They let reasonable, settled practice become law. They keep out recent, unreasonable or unlawful claims.
What are the schools of jurisprudence? / विधिशास्त्रका सम्प्रदायहरु के के हुन् ?
Jurisprudence is studied through several schools. Each school explains the nature and purpose of law from a different angle. They are best remembered as six ways of answering the one question, "what is law?"
Together these schools show the many sides of law. Law can be seen as moral ideal, as command, as national growth, as social instrument, as court behaviour and as economic product. A full understanding draws on all of them.
What does the analytical approach of law mean? Mention the contribution of Austin. / कानूनको विश्लेषणात्मक पद्धति भन्नाले के बुझिन्छ ? अस्टिनको योगदान उल्लेख गर्नुहोस् ।
The analytical approach is also called the positivist or imperative school. It studies law as it actually is. This is the positive law laid down by the state (positum, that which is set down). It does not study law as it morally ought to be. Its method is simple to state. It takes the legal system as a given fact. It then analyses the system's key concepts with logical precision. These concepts include law, sovereignty, right, duty and sanction. The school deliberately keeps law separate from morality, religion and ideals. For the analytical jurist, one question settles whether a rule is law. Was the rule duly laid down by the proper authority? Whether the rule is good or just is a different question.
The founder and leading figure of this school is John Austin. His central contribution is the command theory of law. Austin defined law as the command of the sovereign backed by a sanction. He said that every law properly so called contains three elements. The first is a command. This is a general expression of the wish of a superior that an inferior shall do or not do some act. The second is the sovereign. This is a determinate human superior. He is habitually obeyed by the bulk of a political society. He does not himself habitually obey any other superior. The third is the sanction. This is the evil or penalty that the sovereign will inflict if the command is disobeyed. The sanction is what makes the command binding. From these ideas Austin also built his account of duty. Duty means being bound by a command on pain of a sanction. He built his account of sovereignty in the same way.
The theory can be illustrated from Nepal's own statute book. Parliament enacts in the Muluki Penal Code 2074 that whoever commits theft shall be liable to imprisonment or fine. Here is a general command addressed to all. It is issued by the determinate law-making authority. It is backed by a sanction. This is law in Austin's precise sense. It is law whatever one thinks of the penalty's wisdom.
Austin's contribution was large. He gave jurisprudence a clear and rigorous method. He freed the study of law from vague appeals to nature and morality. He supplied precise definitions that organised the subject as a science. His analysis of sovereignty and sanction shaped all later positivist thought.
His theory was also criticised. It ignores custom and precedent as sources. It overlooks the moral and social roots of law. Its picture of a single determinate sovereign fits a modern constitutional, federal state poorly. In Nepal sovereignty rests with the people under the Constitution of Nepal 2015. It is exercised through the constitution, elected legislatures and an independent judiciary. It is not exercised through one commander who obeys no one. So the "sovereign" has to be understood in a far more complex, constitutional way. Even so, Austin's work remains a foundation of the subject. As an analysis of the formal nature of positive law it still stands.
Differentiate between legal right and moral right. / कानूनी अधिकार र नैतिक अधिकारका बीच फरक छुट्याउनुहोस् ।
Legal rights and moral rights differ mainly in two things: recognition and enforceability. The contrast can be drawn under several heads.
Here is an example. A creditor lent money. His right to repayment is a legal right. The court will enforce it by a decree. Now take a poor person's claim to charity. Or take a claim that a friend keep a purely social promise. These are at most moral rights. They have no legal remedy. The two often overlap, because much law rests on morality. But they are distinct. The test that separates them is enforceability by the state.
State the basic concept of property. / सम्पत्तिको आधारभूत अवधारणाबारे उल्लेख गर्नुहोस् ।
The basic concept of property (सम्पत्ति) is a relationship protected by law. It is the relationship between a person and the things and valuable rights that he may own. The heart of property is a bundle of rights. The owner has the right to possess the thing. He has the right to use and enjoy it. He has the right to take its produce. He has the right to keep others out. He also has the right to dispose of it by sale, gift or will.
An example makes this clear. The owner of a field may cultivate it. He may keep its harvest. He may fence out intruders. He may also sell or gift it. All these rights together are his property in the field.
Property is of several kinds. It may be movable (चल), which can be moved from place to place. It may be immovable (अचल), such as land and buildings. It may be corporeal (भौतिक), which has a physical body. It may be incorporeal (अभौतिक), which is made of intangible rights such as patents, copyrights and leases. It may be public, owned by the state or community. It may be private, owned by individuals.
In Nepal the Muluki Civil Code 2074 governs property. It keeps the difference between movable and immovable property. It requires registration for the transfer of immovable property. Property is important for several reasons. It secures ownership. It encourages production and investment. It also provides the economic base of social life. This is why the law protects it so carefully.
What are the essential elements of a possession? Explain. / कब्जाका आवश्यक तत्त्वहरु के के हुन् ? वर्णन गर्नुहोस् ।
Possession (भोग / कब्जा) means two things together. It means actual physical control of a thing. It also means the intention to hold it as one's own. Following the jurist Salmond, possession has two essential elements. Both must exist together.
An example shows why both are needed. A servant carries his master's goods. The servant has the corpus. The goods are in his hands. But the servant lacks the animus. He holds the goods for the master, not for himself. So the law treats the master as the possessor. Now take the opposite case. An owner is driven off his land. He keeps the animus. But he has lost the corpus. So he lacks full legal possession, until he recovers control.
When both elements are present, the law protects the possessor. He may defend his possession. He may also recover it, even against the true owner, until a better right is proved. Long continued possession may in time ripen into ownership through prescription.
What is a person? Explain the legal status of a dead person. / व्यक्ति के हो ? मृत व्यक्तिको कानूनी हैसियतबारे व्याख्या गर्नुहोस् ।
This question has two parts. The first is the meaning of a person in law. The second is the legal status of a person after death. The two are connected. The dead person shows the outer limit of legal personality.
(a) What is a person. In law a person (व्यक्ति) is any being whom the law treats as able to have rights and bear duties. The legal meaning is wider than the ordinary one. It is not limited to human beings. Persons are of two kinds. A natural person is a human being recognised by law as a subject of rights and duties. The law may limit the capacity of some of them, such as infants and persons of unsound mind. A legal (artificial) person is any other subject that the law gives personality to, such as a company or corporation. It can own property, make contracts and sue and be sued in its own name, separately from its members. A registered company in Nepal, for instance, holds its assets and bears its debts in its own name. It does so even as its shareholders change. Legal personality is therefore a status that the law confers. The law decides who will count as a person. It also decides how far each person may act.
(b) Legal status of the dead person. As a general rule legal personality ends at death. So a dead person is not a legal person. He can hold no rights or duties. The law nonetheless protects certain interests connected with him. First, his will is respected. His property passes after death to his heirs or according to his testament. Suppose a woman leaves a valid will giving her house to her daughter. The law gives effect to it, although the testator is no longer a person. In Nepal the Muluki Civil Code 2074 governs such succession. Second, the law protects the decent disposal and the dignity of the dead body. It treats desecration of the body as a wrong. Third, a person's reputation may be protected to some extent even after death. These protections do not mean the dead man remains a person. They exist to honour the wishes he expressed while alive. They also protect the feelings and interests of the living who survive him.
In short, a person in law is any being able to hold rights and duties. This may be a human being or an artificial person such as a company. A dead person has no legal personality. Even so, the law guards his property wishes, his body and his memory. It does this for the sake of the living and of justice.
Differentiate between criminal administration and civil administration. / फौज्दारी प्रशासन र देवानी प्रशासनबिच फरक छुट्याउनुहोस् ।
Civil and criminal administration of justice are the two branches of the administration of justice. They differ in subject matter, parties, procedure and purpose. Yet both are carried on by the same courts. And both aim in the end at justice.
(a) Subject matter. Civil administration of justice deals with disputes over the private rights of individuals. These include contract, property, partition (अंशबण्डा), inheritance and family relations. In Nepal these are governed largely by the Muluki Civil Code 2074. Criminal administration deals with offences. An offence is a wrong against the state and society. Examples are theft, assault and murder. These are defined and punishable under the Muluki Penal Code 2074. For instance, a dispute over the sale of land is civil. The theft of goods is criminal.
(b) Parties and who initiates. A civil case is between two private parties. One is the plaintiff (वादी), who complains. The other is the defendant (प्रतिवादी). The case is begun by the wronged individual. A criminal case is between the state and the accused. This is because a crime is a wrong against the whole community. The case is brought by the state through public prosecution. It is not brought by the victim alone. So in a theft, it is the state that prosecutes. The state acts through the Government Attorney (सरकारी वकिल), not the owner of the stolen goods.
(c) Aim. Civil justice seeks to redress the wrong. It enforces the right. It awards compensation, restitution or a declaration of rights. So the injured party is put back, as far as money can do it, in the position he should have been in. Criminal justice seeks to punish and correct the offender. It also seeks to protect society. It does this through penalties such as imprisonment or fine.
(d) Standard and burden of proof. In civil cases the burden lies on the party who claims a fact. The standard is the balance of probability. So the more likely case wins. In criminal cases the accused is presumed innocent. The burden lies on the prosecution. Guilt must be proved beyond reasonable doubt. This is a stricter standard. The reason is that the liberty of the accused is at stake. It is thought better that a guilty man escape than that an innocent one be punished.
(e) Common ground. Both branches are administered by the same courts. In Nepal these are the Supreme Court, the seven High Courts and the seventy-seven District Courts under the Constitution of Nepal 2015. Both must follow the rules of natural justice. Both must hear both sides. Both must decide on the evidence and the law. In both, appeal lies to a higher court. The difference is one of subject, parties, aim and proof. Civil justice settles private disputes to redress wrongs. Criminal justice enforces the law of the state to punish public wrongs. Both together make up the administration of justice. Through it the state gives every person his due.