Nepalese Legal System
Nepalese Legal System
Existence Identity
Content Structure
Existence
• What are the criteria for the existence of a legal
system?
legitimacy
Validity
efficacy
• Raj identify three criteria for existence
obedience
Efficacy
Continuity
• One of the objects of theory of legal system is to
furnish criteria to determine the truth or falsity of such
statement.
Cont..
• According to the Austin’s theory sovereign and
its efficacious is main elements of existence of
Legal system. Nepali Constitution has
empowered Nepalese People as sovereign and
articles 1 of the constitution stated that
constitution shall be fundamental law of
nations and anything inconsistent with it is
null and void.
Identity
• What are the criteria, which determine the system to which
a given law belongs?
• The identity of a legal system, as well as the membership of
a law in a system, is determined solely by the facts of its
creation, by its origin Austin's criteria of identity and
membership are a variant of what may be called the
principle of origin. The ultimate origin of every law is a
legislative act of one person, or body of persons.
• Kelson says, it is the basic norm of every legal system
which guarantees the internal coherence of that system.
The principle of non-contradiction, he says, 'is contained in
the basic norm’.
Structure
• The structure of legal systems we shall be concerned only
with one kind of relation which we call an internal relation.
An internal relation exists between two laws if, and only if,
one of them is (part of) a condition for the existence of the
other or affects its meaning or application.
• Bentham states structure of law in following manner
• A law may also contain independent clauses of three kinds:
– (1) Expository clauses: explaining concepts which are used in the
law.
– (2) Satisfactive clauses: which are declarations of policy
designed to repair damage that may be caused through
disobedience to the law.
– (3) Incitative clauses: that is declarations of policy of rewards for
obedience or of sanctions for disobedience to the law.
Content
• Is there any content common to all legal systems or
determining important types of system?
• It may claim that there is no structure or shared content
common to all legal systems. The examination of structure
and content is fundamental also to the theory of types of
legal system
• that 'the content of a basic norm is determined by the facts
through which an order is created and applied
• Generally content includes definitions, jurisdiction,
preliminary issues, substantial provision, punishment
provision and miscellaneous provisions. These provisions
are unique in comparison with other legal system. It varies
from law to law and country to country
Nepalese Legal system
• Nepalese legal system is independent legal
system based on indigenous development.
• Nepalese Legal system developed over a long
period of time indepedently on the basis of
customes and religious scriptures like mundhum,
shrutis, Smritis and Dharmashstras.
• After reception of foreign law Nepali legal system
has gone through many difficulties and changes,
westernization and modernizations which
resulted the existing Nepali legal system.
• Nepalese Legal system is influenced by many systems of
law along with the involvement of the native concepts,
customs and usages.
• The Muluki ain of 1910 B.S. was based on the
Dharmashastra. Dharma here refers the science of Law,
Justice and rational princples. However, it is said to be
influenced by civil law system
• In similar manner, recognition of precedent and adversarial
systems are the influence of Common law system which
strongly rooted in the nepalese legal system.
• Influence of Socialist Legal system also seen in the process
of development of Nepalese legal system as rule related to
state owned enterprises, cooperatives and socialism based
economic plan and policies.
• Nepalese legal system was original before the outset of
declaration of democracy in Nepal. After 2007, it
transformed into hybrid legal system due to its
modernizations by reception of foreign laws along with the
Hindu philosophy, indigenous custom and usages.
• The Nepali Legal system is marked by different traditions,
ranging from common law to traditional Hindu Law.
• In contemporary time Nepalese legal system is hybrid in
nature. Large portion of it has been derived from common
legal system, some of the portion has been accepted from
civil legal system and socialist legal system, and normative
values of legal system have been adopted from religious
legal system.
Development of NLS
• Kirat Period:
– Kirat Peroid was existed in 750 BC to 250 BC .
– It is believed that Yalambar was first king from Tibet and
was mangol dynasty.
– There is no detail written information about this period.
Kirat as taken as indigenous, religious group
– Mundhum was holy text of Kirat and they believe it as
main scripture and philosophy.
– Mundhum can be taken as first written law (Code) of
Nepalese Legal system
– There was existed as Matsya Nyaya they administered the
judicial system accordance with the existing custom and
usage.
• Yahang was portions of Mundhum which was related
to legal rules of Authority, Rule of Family, property,
Marriage, Polygamy and incest.
• Murder, theft, and rubbery were consider as a serious
crime but intercaste marriage was permitted.
• Hang Chumlung was the assembly of Kings. Member of
Asssembly was king, Tumyang (Minister) Thakumba
(Chief Saradar), Passing panchlang (Elected five
member) in the chairman of king
• King was given power to make law int eh area of in
which mundhum was not cover
Lichchavi Period
• Lichchhavi was entered into nepal from Baisali in
250 bc. First king was supushpa. He had followed
the custom, tradition, culture and religion
developed by the Lichchhavi.
• Yagywalkya smriti was most important rule to
them rule
• Sanad, dharmashastra, customary law and
raajaagya was the main source of Law
• Panchkhat were recognized by lichchhavi ruler as
serious crime. They were theft, rubbery murder,
treason, sexual relations with others wife.
Court System
• There was Provision of Panchali of justice they
had mobile court in local level as panchali,
birtawal, chhatbhatta
• There were provincial level court as Drang,
Tala, Bisayapati, Atakulk and Sutradhar
• There were central level court Antarasan,
Parmasaan
• Mahapratihar, Adhikaran,
Mahasarbadandanayak
Punishment system
• There were four types of punishment:
• Baghdanda: Reprimand of Oath
• Dhik Danda: Public Reproach
• Arthdanda: Monetory fine
• Badhdanda: Physical, corporal punishment
including Capital Punishment
Malla Period
• Malla Kings ruled Nepal in between 13th to 18th Century
• 1st Malla king was Ari Malla established his regime in
Kathmandu in 1197 B.S.
• Jayasthiti Malla consituted five member to codify the
Manavnyayasashtra
• Four Major part of Manav Nyayashastra
• Griha nirnaya: Related to Housing
• Kshetra Nirnaya: related to Land Management
• Jata Nirnay: Related to Caste Management
• Manav nyayashastra: Law related to administration of
justice
Sources of Law in Malla Period
• Dharmashastra: Hindu Theology
• Custom and Tradition
• Royal Edicts: Rajagya
• Sanad: Promulgations of Kings
• Manav nyayashastra:
The main character of Malla legal system are dharma, religion
are basic tools & law ethics value, honesty, morality refer to
right way of life, duty based law rather than right based law,
codification of Law
There was no clear separation of power between the state
organs; all the power were exercise by the same authority
King was principle authority to make the law and decide case.
Court System
• Two kinds of Court in Central Level
• Kotilingha: For hearing civil case in which appeal
of overall local level used to hear
• Itachapali: For deciding criminal cases. i.e.
Murder, dacoits, treason, theft. It heard both
original and appeal jurisdictions. It was first
instance court for ktm vally and appellate court of
other local courts
• In local level: Dharmadhikari, Ditha bista, Dware,
chharidar, panchapradahan were constituted to
deal the dispute of local level.
Punishment system
• Punishment was based on the caste and gravity
of crime determined by the king and bhardar
• Physical (Badhdand): Death penalty and other
physical injury. Brahmans were exempted from
the punishment of death penalty
• Arthdanda: financial fine imposed
• Bagdanda: physically weeked criminals.
• Dhikdanda: for Mad Person, as public reproach
• Jatapatan: voilation of custom,
Shah Period (1768-1825)
• Ram shah was popular king for Justice, he
adopted sukra niti for justice and he himself
used to participate in the process of justice
administration.
• His rule of Dhogbhet and 26 Thiti are popular
• His statement of Kashi for Knowledge and
Gorkha for Justice is still popular.
• Panchayat was established for dispute
settlement
• Great contributor Prithvi Narayan Shah enacted some
act and code i.e. Royal Throne Act, Penal Code Act
1825, Realese the Slave in 1825 Law prohibiting
gambling 1826, ten limbu thiti 1829
• Dolagy system was initiated, dhansar and taksar court
were established. Kotilinga and Itachapali was
continued for justice operation.
• Dharmadhikari was appointed for providing justice.
Judicail power were separated and appointed judicial
chief in the palace.
• All the substantive and procedural law for justice
operation were based on the Dharmashastra.
Divya Upadesh of P.N. Shah
• Classification of Caste into 4 barna 36 caste
system was continued.
• Stated that, Bribery taker and giver both are
enemy of the nation
• Community punishment was introduced.
• Revenue should be used for state and religious
work
• Definition of crime and punishment system
was as continuation of Malla Period.
Rana Period (1903-1997)
(Era of Codification)
• JB Rana came into power with kot Parva and Bhandar khal
Parv. Later he visited England and France in Europe. Whilst
visiting Europe he got chance to observed the Nepolian Code
in France.
• He Constituted a body of Ain Kausal of 230 member to draft
the code in line with format of Nepolian Code.
• Muluki Ain 1910 was first codified law of Nepal promulgated
by JBR in which all the substantive and procedural laws were
incorporated. This code was just compilation of Customary
law existed in Nepal.
• He established and continued Kotiling, Itapachali, Taksar,
dhansar. And further he added 30 courts; Among them 20
courts were in Hilly region, 8 in Terai and 2 in Kathmandu.
Common Law System
In contrast to the codified laws of the civil law system,
doctrines and rules developed over time by judges serve
as "legal precedent" in the common law system.
The common law system is derived from the English
common law and is found in many parts of the English
speaking world such as Australia, Canada, England, the
United States, Wales, and other countries.
Common law developed in England, influenced by the
Norman conquest of England which introduced legal
concepts from Norman law. Common law was later
inherited by the Commonwealth of Nations, and almost
every former colony of the British Empire has adopted it.
• Common law and equity are systems of law whose sources
are the decisions in cases by judges. Alongside, every
system will have a legislature that passes new laws and
statutes. The relationships between statutes and judicial
decisions can be complex.
• In some jurisdictions such statutes may overrule judicial
decisions or codify the topic covered by several
contradictory or ambiguous decisions.
• In some jurisdictions judicial decisions may decide whether
the jurisdiction of constitution allowed a particular statute
or statutory provision to be made or what meaning is
contained within the statutory provisions.
Major features of common law
• Besides this the traditional Nepalese laws are based on the text of
codified like, Veda Smritis and so on as a code system as civil law.
• Similarly our indigenous provisions of criminal justice system and
dissenting opinion of the Bichari was also close with the civil legal
system.
• Some others legal provision issued by the king as per the necessary
of time, were in written form, such as the code of Jayasthiti Malla's
Manav Nyaya shastra, Ram Shah's Thitis, Sanad , Lalmohal and so
on were issued by sovereign are similar to the civil law system.
• In Nepal the first written code was enacted ( Muluki Ain 1910 BS) by
the influence of the civil code and civil law system. The code Muluki
Ain which was promulgated immediate after returned of the Janga
Bhadaur Rana, and then he visited to England and France.
• Before 1910 there was not written law in Nepal some religious
custom, command of the King, social practice and traditions were
the sources of law until then.
• The Muluki Ain was landmark law established rule of law for the
first time in the country. It contained civil law, criminal law, Family
law and civil and procedural law all in one book.
• Beside Muluki Ain, Nepal has also tried to enact the important
criminal code in 2012, 2031 and in 2059, but not succeed.
• Some examples of influences are-
Constitution, Muluki Ain 1910- , The Criminal
Code Act, 2074, The Civil Code Act, 2074, The
Narcotic Drug (control) Act, 2033, The human
Trafficking (Prevention and Control) Act, (….)
Evidence Act, 2031 , (sec 27,53- Burden of
proof) , Corruption control Act , 2056 sec- 20
Burden of proof.
Socialist Legal System
• Socialist law is the legal system used in most Communist states. It is
based on the civil law system and Marxist-Leninist ideology. The
socialist ideology is predicated on the principles, inter alia, that all
law is an instrument of economic and social policy.
• Marxist theory is founded on the doctrine of ‘dialectical/historical
materialism’ which argues that a society goes through various
stages or phases in the course of its evolution and development.
• It might begin with no legal system, then become a slave owning
one, followed by a stage of medieval feudalism, before moving on
to capitalism, then socialism, before law finally ‘withers away’ in a
classless society with no necessity for any legal system, because all
men will treat each other as equals.
• The family of socialist laws originated in the Union of Soviet
Republics where these ideas prevailed and a new law has
developed since the 1917 revolution.
• In Marxist theory, law and the state are seen as
instruments used by the ruling classes in various stages
of the development of society to oppress and exploit
other social classes . The law is not an autonomous
entity but is merely a reflection of the material base
especially the economic relations of production of
society.
• During the cold war period, it was incorporated into
the legal systems of the Soviet Union and its former
satellite states in Central and Eastern Europe. These
systems were built on the notion that the state, rather
than private individuals, should own most of the
property within its jurisdiction.
• The Communist Party is the only real governing and
planning body within the socialist legal system. Once it
decides a particular policy, it communicates its plans to all
its constituent organs and this policy will be carried out by
its legislative, executive and judicial agencies.
• When the cold war ended and the Soviet Union collapsed,
support for the socialist legal system declined considerably.
• Some states, such as China, Cuba, Vietnam, and North
Korea, continue to practice their own version of socialist
law; however, most of these states have modified their
legal systems in response to the growing popularity of
market-oriented reforms and the inevitable forces of
globalization.
Influence of Socialist law in Nepalese
Context
• Socialist law has its direct or indirect influence in all
over the world. Nepal is not isolated from this fact.
Principally, Nepal is the follower of common law, but in
practice, Nepal also applying the some aspects of
socialist law.
• Nepal has been adopting the periodic economic
planning, the concept of welfare state, social inclusion,
mixed economy, establishment of National Planning
Commission which are the part and particles of
socialist law family.
• Some provisions regarding the influence of socialist law
can be observed as below:
• Provisions under the constitution of Nepal (2072)
• Constitution of Nepal one of the example of influence of Socialist legal
system, in which Economic equality, prosperity and social justice,
elimination of discrimination in all sector principle of equality, socialism
based norms and values are included in the preamble of the constitution
of Nepal.
• Fundamental rights including right to live with dignity, right to freedom,
right to equality, right against untouchability and discrimination, right
relating to property, right against exploitation, right to employment, right
to labour, right to social justice, right to social security, right of the
consumer etc. is related with socialist law.
• Similarly the directive principles, policies of the state is provisioned in the
constitution of Nepal is one of the great influence of socialist legal system.
Including policies regarding economy, industry and commerce, agriculture
and land reform, protection promotion and use of natural resources, basic
need of the citizens and social justice and inclusion is the types of
characteristic of socialist legal system.
• Different Constitutional Bodies: the Commission for the
Investigation of Abuse of Authority, Auditor General, National
Natural Resources and Fiscal Commission, National Women
Commission, National Dalit Commission, National Inclusion
Commission, Indigenous Nationalities Commission, Madhesi
Commission, Tharu Commission , Muslim Commission,
• Some Relevant Acts- Land measurement act 2019, Community
forest act 2049, Labour act 2049, Community forest Act, 2049,
Cooperative act 2048, Land administration act, 2049 etc.
• Some Programmes of Nepal Government- Reservations(quotas) for
government jobs and political institutions, old age
allowance(pension), allowance for single woman, protection
programmes for marginalized people ,Minority group etc.
• In the case of Mithilesh kumar singh vs. HMG, the court declared
that, private property can take by state with giving reasonable
compensation. This decision tries to stipulate about the private
individual should be liable on public ownership for the public
benefit.
• Supreme court has declared that, untaouchability is illegal in the
case of Man Bahadur B.k. Vs. HMG. In which legal provision is
contradict with the principle of right to equality guaranteed under
the constitution. It means discriminatory law should be eliminated
to maintain equal treatment to all.
• In the case of Madhav Kumar Basnet vs. HMG, the starvation case in
Humla, stated that, the distribution of equal resources to all the
citizens is not properly provided by the government so the right to
food is not efficiently addressed.
Religious Law
• The religious law system is a legal system that is based on
religious beliefs or texts. People of the country are follower
of a particular religion and It is true that d unjust, good or
bad. Among them Religious law is a type of law in which
ethical and moral codes are taught by religious tradition.
• Hindu law, Christian law, Muslim law, Canon law etc. are the
law s which is traditional and they are running from couple
of years back.
• In religious law they have no written and any other of this
type system In religious law god is supreme and he is the
main authority of that particular law Religious law is
thought to be a higher body of understanding in which
reality and knowledge is defined by God and is applicable
to all human beings
• This is of course a rather simplistic view of
religious law as there are many different
religious, each trying to establish their own
concepts and ideas as to what religious law
should include.
• Religious law is derived from two primary
sources; the civil law traditional as followed by
Catholics, Anglican and Orthodox religions and
the more customary basis such as Sharia law that
is more a kin to common law principles.
Hindu Law
• Hindu law, as a historical term, refers to the code of laws
applied to Hindus, Buddhists, Jains, and Sikhs in
BharatBarsa Himvat Khanda.
• Hindu law, in modern scholarship, also refers to the legal
theory, jurisprudence and philosophical reflections on the
nature of law discovered in ancient and medieval era The
Vedas. It is one of the oldest known jurisprudence theories
in the world.
• Hindu tradition, in its surviving ancient texts, does not
express the law in the established sense of jus or of
Lex. The ancient term in Hindu texts is Dharma, which
means more than a code of law. The substance of Hindu
law implemented by the British was derived from
a Dharmaśāstra named Manusmriti.
Muslim Law
• Concept of Muslim Law is prior to the British colonial rule. Muslim
law was codified as Fatawa-e-Alamgiri, but laws for non-Muslims. It
is a compilation of law created at the insistence of
the Mughal Emperor Aurangzeb (who was also known as Alamgiri).
• This compilation is based on Sunni Hanafi Islam's Sharia law, and
was the work of many scholars, principally from the Hanafi school.
The Fatawa-e-Alamgiri is notable for several reasons:
• It spanned 30 volumes originally, but is now printed in modern
editions as 6 volumes
• It served as the basis of law and doctrine imposed by Aurangzeb
throughout his empire by the early 18th century
• It created a legal system that treated people differently based on
their religion, social class and economic status.