Nepali Legal System · Chapter 2
Study notes aligned to the official NEB syllabus.
Every country has its own legal system. But scholars group the legal systems of the world into a few broad families. They do this because many systems share a common origin. They also share similar ways of making, stating, and applying law. Four families are usually studied. These are the common law, the civil law, the socialist law, and the religious legal systems. Nepal's own system has borrowed from all four. That is why these families matter for a student of Nepali law.
The common law family began in England after the Norman Conquest of 1066. At that time the king's judges travelled across the country to settle disputes. Slowly they built up a body of law that was "common" to the whole realm. This replaced the many scattered local customs. From this it takes its name.
Its main feature is that it is judge-made law (न्यायाधीशले बनाएको कानुन). Much of the law is found in the decided cases of the courts. It is not found in a single written code. It rests on the doctrine of binding precedent (stare decisis). This means a ruling of a higher court binds the courts below it. So like cases are decided alike. For example, suppose a higher court decides that a certain kind of careless act gives the victim a right to compensation. Every lower court must then follow that ruling in later similar cases. This makes the law predictable.
Its procedure is adversarial. This means two opposing parties argue before a neutral judge. The system is also linked in history to the jury. Through the British Empire the common law spread far. It reached the United States, India, Australia, Canada, and many other countries. Nepal was never colonised. Yet it still took in common law ideas such as binding precedent. Under the Constitution of Nepal 2015, the interpretation of law and the legal principles laid down by the Supreme Court are binding on all. The writ remedies, such as habeas corpus, are common law in origin too.
The civil law family is also called the Romano-Germanic family. It is the oldest and most widespread. It descends from Roman law (रोमन कानुन). In particular it comes from the great compilation of the Emperor Justinian, called the Corpus Juris Civilis. It was carried into modern times by later codes. These include the French Napoleonic Code of 1804 and the German Civil Code.
Its main feature is codification (संहिताकरण). This means the law is gathered into full, organised written codes. These codes are the primary source of law. The judge's task is mainly to apply the code to the facts. The judge does not make new law. So precedent carries less formal weight than in the common law. Here is an example. A French or German judge faces a dispute over a sale. He looks first to the relevant article of the civil code. He then applies it to the facts. He does not search for an earlier decided case.
Its procedure tends to be inquisitorial. This means the judge takes an active part in investigating the case. Civil law prevails across continental Europe and much of Latin America. Nepal has a long tradition of codifying its law. This runs from the Muluki Ain of 1854 down to the Muluki Civil Code 2074. This tradition reflects the civil law influence. A Nepali judge today works the same way. He opens the Code and applies its provisions to the facts before him.
The socialist legal system arose in the twentieth century. It began with the Soviet Union after the Russian Revolution of 1917. It is built on Marxist-Leninist ideology (मार्क्सवादी-लेनिनवादी विचारधारा). In it, law is treated as an instrument of the state. The state uses law to abolish class distinctions. The aim is to build a socialist, and in time a communist, society. Law is kept below the policy of the ruling party.
This system stresses state or collective ownership of the means of production. It restricts private property. It gives public and economic law a central place. For instance, in the classical Soviet model the land and factories were owned by the state. They were run by central economic plans, not by private owners trading freely. Former socialist states included the USSR, China, Cuba, and Vietnam.
Its mark is visible on Nepal too. The preamble of the Constitution of Nepal 2015 commits the country to a socialism-oriented order. Its directive principles aim to end exploitation and reduce economic inequality. This shows in measures such as land reform and socio-economic rights.
A religious legal system draws its law from divine revelation and sacred texts (धार्मिक ग्रन्थ). It does not draw its law from the will of the state. The law is treated as divine in origin. So it is seen as sacred and relatively unchanging. It usually governs the personal and family life of believers.
The main examples are three. Hindu law is drawn from the Shruti and Smriti. Islamic (Muslim) law is drawn from the Quran, the Sunna, and the reasoning of jurists. And the canon law belongs to the Christian church. For example, questions of marriage and inheritance among believers were traditionally settled a certain way. They were decided by the rules of the sacred texts, as explained by religious scholars. They were not decided by a statute passed in a parliament.
Religion shaped Nepali society very deeply. So Hindu religious law was for centuries the backbone of the country's legal order. It was codified in the Muluki Ain of 1854. It still colours Nepal's family law today. This is true even in the reformed, secular form of the Muluki Civil Code 2074.
Grouping the world's legal systems into these four families is not just an academic exercise for a Nepali student. All four families meet in the law of Nepal. Nepal states its law in full codes, which is the civil law method. Its courts follow the binding precedent of the Supreme Court and protect rights through writs, which is the common law method. Its Constitution of Nepal 2015 commits the state to a socialism-oriented order with socio-economic rights, which echoes the socialist family. And its family and property law still carries the mark of the Hindu religious tradition.
A single example ties this together. Think of one inheritance dispute in a Nepali court. It is decided by applying a written code, which is the civil law form. The rules of that code descend from Hindu law, which is the religious tradition. The court follows Supreme Court precedent, which is the common law method. And all of this happens inside a constitutional order that promises equality and social justice, which is the socialist orientation. So understanding the four families means understanding the very ingredients of the mixed Nepali legal system. That is why this chapter studies each one in turn.