Nepali Legal System · Chapter 3
Study notes aligned to the official NEB syllabus.
Hindu jurisprudence is the body of legal thought that grew out of the Hindu religion. It is built on the Hindu sacred texts. It is one of the oldest legal traditions in the world.
This tradition matters a lot for a student of Nepali law. Nepal was a Hindu state for many centuries. Much of its family law and inheritance law still carries the mark of this tradition.
The heart of Hindu jurisprudence is one key idea: Dharma (धर्म). In the West, "law" means a command of the state. Dharma is a much wider idea. It means righteous duty. It is the moral and legal order that holds the universe and society together.
In Hindu thought, law and religion are not separate things. To follow the law is to follow Dharma. Take a simple example. A person repays a debt or cares for aged parents. He is not just obeying a legal rule. He is also discharging Dharma. That duty is moral, religious and legal all at once.
Hindu law grew over thousands of years. It began in the Vedic age. This was the time when the Vedas were composed. Conduct was guided by Dharma as revealed in the Vedas.
From this grew the Smriti period. In this age, sages wrote down detailed codes of duty. These codes are the Dharmashastras. The most famous is the Manusmriti. The Yajnavalkya Smriti and the Narada Smriti came after it.
The Smritis were many in number. Sometimes they disagreed with each other. So a later age of commentaries and digests (the Nibandhas) arose. In this age, learned writers explained the texts and reconciled them. The two great schools of Hindu law took shape from these commentaries.
Here is an example of this evolution. Think of the rule on a son's share in family property. The Smritis stated it broadly. Then Vijnaneshwara and Jimutavahana interpreted it in different ways. Those differing interpretations hardened into two schools. One is the Mitakshara school. The other is the Dayabhaga school.
So Hindu law moved through several stages. It began as pure revelation. Then it became written codes. Then it became interpreted and systematised law. In Nepal it finally became modern statute. Through all these stages it never lost its religious root in Dharma.
Hindu jurisprudence recognises a graded list of sources. The earlier sources carry higher authority.
Sometimes even these sources are silent on a point. Then the conscience of the virtuous (Atmanastushti) may guide. In modern times, two more sources shape Hindu jurisprudence. These are legislation and judicial precedent. In Nepal, the customary Hindu rules on marriage and partition have now been recast as statute. They are set out in the Muluki Civil Code 2074. So a Nepali court today applies the Code. It does not apply the Smriti directly.
The commentators read the Smritis in different ways. So two great schools (स्कुल) of Hindu law emerged. They differ mainly on rights in family property.
Nepali Hindu law historically leaned to the Mitakshara idea. That idea is the joint family and a son's share by birth. This is why partition (अंशबण्डा) among coparceners has long been a central feature of Nepali property law. It is carried forward today in the Muluki Civil Code 2074.
A final point ties the whole chapter together. Hindu jurisprudence rests on Dharma (धर्म). It does not rest on the bare command of a ruler. So it treats law, morality and religion as one fabric. A legal duty is also a moral and religious duty.
This had a striking result in the classical system. Even the king was bound by Dharma. He could not rule as he pleased. This idea points toward a modern principle. The state itself must act within the law. That principle is now embodied in the Constitution of Nepal 2015.
For a Nepali law student the importance is concrete, not just historical. Think of what a court does today. It divides ancestral property. It decides who may inherit. It settles a question of marriage or adoption. In each case it applies the Muluki Civil Code 2074. But the shape of those rules came from the past. The very idea of a coparcenary share by birth came from the Smritis and the Mitakshara. So did the idea of partition among heirs. So did the idea of succession passing down a family line.
Here is an example. A son claims his share of ancestral land. The dispute is decided by the modern Code. Yet one underlying notion is older than the Code. The notion that such a share exists at all is a direct inheritance from Hindu jurisprudence. The modern law has only reformed it, so that sons and daughters are now treated equally. So studying this tradition is not just learning legal history. It is learning the roots of the family and property law that Nepali courts apply every day.