Question No.

1 The Ongoing pandemic conditions of COVID-19 have reflected the

unpreparedness of most of the developing countries including Nepal. In this milieu,
highlights the major legal problems of Nepal directly linking them up with pandemic of
COVID-19 with one major solution.
COVID-19, which is caused by the SARS-CoV-2 virus, was first identified in Wuhan, China,
and has since spread to over 218 countries and territories worldwide. It has wreaked havoc on
Nepal, with the number of reported cases and fatalities in recent days. The situation of
pandemic condition of COVID-19 is not under control in present scenario. People are living in
the threat of the pandemic which may affect the people. If we see the present data of Nepal
more than 5000 people have lost their lives and thousands of people are infected and facing
many minor health problems. The Working class people are facing economic problems.the
Economic condition of the country is very bad in condition. From the 1st phase of COVID to
second Phase the states response in not enough at all. The Political leaders are playing the dirty
game of politics and political power. The resources and medical equipment are not sufficient
to cure people. People are not having foods properly. Mental health problem is also making
people panic inside there home. The covid is spreaded all over nation in community, villages,
cities everywere. The lack of proper leadership, poor administrative management and lack of
proper health facilties, lack of manpower and infrastrutures have caused the situation more and
more complicated
Nepal, like many other nations, has been devastated by an ongoing COVID pandemic that has
resulted in significant economic losses. The GoN has implemented measures such as stay-at-
home orders and mass quarantines to slow the spread of CoVid. People movement restrictions
tend to be the most effective non-clinical intervention for containing COVID spread,
particularly in resource-limited countries like Nepal. COVID cases are still being reported
around the world due to a lack of effective execution of the measures and policies needed to
combat the pandemic. The GoN, on the other hand, is working nonstop to slow the spread of
CoVid in the population.
Due to poor management of border also lots of people from neighboring country are coming to
our country. India is facing the severe condition created by the Covid 19. In the slaw of our
country the lack of including the idea of the medical jurisprudence it has not able to address
the medical and pandemic situation in our country. The un managed quarantine facility,
Corruptions in the medical equipment and other resources and black market is increased in
very high position. The majority of people are facing the economic problems and many are
also facing the starvation problems.
In regards to this condition, the Supreme Court has propounded two decisions for the matter.
In the case of Adv. Santosh Bhandari v Ministry of Health and Population, the court held that,
emergency service and such service should be provided immediately free of cost. This is the
spirit of right to health under fundamental right of the constitution. In the case of Adv. Keshar
Jung KC & Adv Lokendra Bahadur Oli v Nepal Government, Ministry of Health, the court
stated that every citizen had the right to free basic health services from the state, providing
vaccine against the Covid – 19 and other emergency health services.
In times of crisis, efficient management is more important than legal adequacy. The epidemic
created by the corona virus has further highlighted the tragic human rights situation of people.
Although COVID-19 creates more complexity and contingency in the protection and
promotion of people’s rights, it is imperative to fulfill human rights obligations. Under normal
circumstances, it is not surprising that at-risk groups are at greater risk in times of crisis. At a
time when the world is in the throes of the current health crisis caused by COVID-19, under
privileged who are at risk, even under normal circumstances, are at the forefront of exposure.
A proper overarching legislation and regulatory system for public healthcare and facilitating
funding for India's medical facilities are lacking. The parliament in Nepal has to enact concrete
laws with clear instructions. Only by working together, the federal and state governments
would be able to accomplish this goal.There is infectious disease act,2020 but it is not sufficient
and it is outdated laws in present scenario.
The government has responsibilities under domestic legislation, including providing basic
quality health care, medical treatment, and specialized services, as set out in sections 3, 4, 5,
and 7 of the Public Health Service Act, 2018.There are many legal problems in context of
Nepal to fight with pandemic .The government's adherence to the law Under the compliance
with the Public Health Service, the government had many opportunities to combat and
eradicate the epidemic by providing adequate medical equipment, monitoring kits, isolation
centres, and vaccine facilities. However, despite the fact that the court's decisions have gained
de jure respect, de facto conformity has not been achieved. International health organizations
have lent their support. We've learned a lot about how domestic networks are unable to handle
and control pandemic situations. In fact, countries like Nepal will never be able to take any
response action necessary to tackle such cases on their own. In the regular monitoring and
consultation, distribution of the vaccines, test kits and medical response action, the action of
international system including WHO has been minimum.
Some ways to mitigate the pandemic which need to be done by government.
1.The well collaboration between the agencies and the offices of the countries which are
responsible for the country’s fragmented and ineffective response to COVID-19
2. ensure that the Strategic National Stockpile is well stocked to satisfy the urgent demands for
medical supplies and resources that an outbreak like COVID-19 is likely to produce.
3. Financial benefits should be given to inspire people to get screened for COVID-19, explore
available therapies, self-quarantine, and engage in contract tracing efforts.
4. In addition to COVID-19, oppose plans to implement Medicare for All and instead abolish
tax credits that enable individuals to access health insurance from their jobs, allowing people
to buy only catastrophic health insurance.
5. People at venerable situation should be more prioritized and people should be provided
adequate food supply. And people with low income should be provided facility by government.
The COVID-19 crisis raises questions around the role of governments in managing the
epidemic.A proper overarching legislation and regulatory system for public healthcare and
facilitating funding for India's medical facilities are lacking. The parliament in Nepal has to
enact concrete laws with clear instructions. Only by working together, the federal and state
governments would be able to accomplish this goal.
Question No.2
(a) How Sir Herny Maine’s Theory Supersede theory given by karl Von savigny?
Savigny and Maine are the pioneer of Historical School. Savigny emphasized that the He
emphasized that a legal system's muddled and outmoded existence was typically attributed to
an inability to comprehend its origins and evolution. Maine, unlike Savigny, favored law and
codification; he did not believe in the Volksgeist's mystique; and he used legal precedent to
better interpret the past rather than to decide the potential direction and standards.
Savigny talk about in volkgeist’s theory which means National character. In this Theory
Savigny Firmly believed that law is a product of the general consciousness of the people and a
manifestation of their spirit. For eg. The law laws which can be applied in the Nepalese people
cannot be applied in the Chinese or Indian people. So according to the savigny there is no
universal application of laws because different society have different needs. Law also change
according to the circumstances and change of society.The Volksgeist concept was served as a
warning against the hasty legislation and introduce the revolutionary abastract ideas on the
legal system. Unless they support the general will of the people.. Basically, Savigny was of the
view that law should not be found from deliberate legislation but should be made and arises
out of the genera; consciousness of the people.Savigny remarked that law gas a national
character and it develops like language and binded people into one whole because of their
common faiths, believes and convictions,”the organic evolution of law with the life and
character of the people develops with the ages, and in this it resembles language.As in the latter,
there can be no instance of rest, there is always movement, and development of law is governed
by the same power of internal necessity as simple phenomena law grows with nation, increased
with it, and at its dissolution and is characteristics it”. Law develops spontaneously according
to the need of the community but after community reaches a certain level or civilization, the
different kinds of national activites, hitherto developing as a whole. There is dual role of law
regulator of general national life as political element of law and Distinct discipline for
study(jurist element). He opposed the codification of the german law on the frenh pattern
because Germany was then divided into several smaller states and its law was primitive,
immature and lacked uniformity. Lawyers and jurist are the true representative of the popular
consciousness than legislators. Tracing the evolution of law is from volkgeist, namely, peoples
spirit, savigny considered its growth as continuous and un breakable process bound by common
culture traditions and beliefs. It has roots in historical processes which should constitute the
subject of study for the jurist. According to him codification of law may hamper its continuous
growth and, therefore it should be resorted to when the legal system has fully developed and
established.
Henry Maine show the development of law in four stages:
First stage: (Divine Law) Ru;ers are believed to be acting under divine inspiration. And the
laws are made on the commands of the rulers. The judgement of the king was considered to be
the judgement of god or some divine body. King was merely as executor of judgements of god,
not the law-maker.
Second stage:(Customarylaw) Then the command of the kinf converted into customary law.
The custom prevails in the rurel or majority class. Customs seems to have succeeded to the
right and authorities of the king. The recurring application of judgements led to uniform
practice which crystallized into customary law to be filled in the private societies. Maine said
that”custom is to society what law is to state”.
Third stage:- (Priestly class as the sole repository of customary class) the knowledge &
administration of customs goes into the hands of a minority, due to the weakening of the power
of the original law-makers, usually of a religious nature, e.g. priests. The ruler is superseded
by a minority who obtain control over the law.
Forth stage: (Codification) the law is promulgated in the form of a code.
Maine also talks about two types of society one is static society which doesnot progress and
develop their structure after the fourth stage of development of law are static society. Such
society doesnot progress beyonf the era of codes and another is progressive society which gon
on progressing after the fourth stage of development of law and they develop their laws with
the help of instuments like legal fiction, Equity,Legislation.
Maine Supersede the savigny because he has contributed in the important piece of comparative
legal research to a legal theory inspired by principles of historical evolution. His great
contribution to legal theory specially lies in the combination of what is best in the theories of
both Montesquieu & Savigny. Maine’s theory avoids the danger of an excessive disintegration
of theoretical laws of legal evolution. It is also free from the abstract & unreal romanticism,
unlike Savigny’s theory. Savigny have ignored the creative function of judges. Judge made law
or judicial legislation are common feature today. And in present context we use other nations
law as the source of law which is ognored by savigny. Etc are the points which is ignored by
savigny but maine has included. Savigny Only talks about past but main tries to use the past
learn to make law in present and considering future.
(b) Define the concept of living law from the perspective of Erlich with proper
reference.
Eugen Ehrlich is recognized as the pioneer of sociology of law. The study of law from a social
context is known as sociology of law. Ehrlich saw civilization as a primary basis of legislation.
He means "association of men" when he says "society." “All legal advances have their center
of gravity not in law or court rulings, but in society itself,” Ehrlich wrote. He claimed that
society is the most important source of law, and that it is a greater source of law than laws or
judicial decisions.
Eugen Ehrlich is the supporter of the social school of law. He gave the theory of “Living
law”.Living law denotes the functional work of law. His famous work is “Fundamental
principles of the sociology of law”. In which he depends the laws on the various aspects of the
society. In which he said that living law means the inner order of the association. According to
Ehrlich law drives from social factors which means law came into existence from socially
adopted behaviours, activities or doings and happenings. According to Ehrlich, At the present
as well as at any other time, the center of gravity of legal development lies not in legislation,
nor in juristic Science, nor in judicial decision, but in the society itself. After many comparative
study of legal system Ehrlich said that law developed by conscious efforts. Law came into
existance from the things or ideas or system which are prevalent in society and behaviors. And
the social pressure makes peoples to show the established behaviors which can be known as
established law of society. It means law is not in the rules and regulation made by state, it is in
the society and social behaviours and made in society and came into existence and used in the
society.
According to Ehrlich society is the source of law.Formal law formulated by the state is only a
solution to social control, which takes the form of law and awakening by combining other
means, customs, tradition and morality.The institution of marriage, domestic life, inheritance,
possession, contract etc governs the society through “Living law” which dominates the human
life. Ehrlich’s idea is some where inspired by savigny and like savigny he has also talked about
the spontaneous evolution of law. Unlike savigny he doesnot stop at the point of past but he
also talk about living form of law. Like Duguit Elrich does not give the important place to
State. According to the Ehrlich, Existance of human being cannot be separated with society
that’s why society is given more importance than state.He have given very less importance to
the state , it means he has given less importance to the legislation.
Question no 3. “Law is evolutionary process but there must be harmony among various
laws of evolution. If so theory of Social evolution can be better understood based on the
principles of physical and biological evolution.” Highlight the tenants and elaborate.
There should be, and always is, a near relationship between manmade law and justice – law
should seek to achieve justice. Laws should reflect the factual essence of fact rather than the
arbitrary prejudices or whims of a single individual, a community of individuals, or the whole
population. Natural law is empirical since it is part of the essence of the individual it governs.
Human reason will enter the content of natural law. For example, it is self-evident that, since
each man has a natural right to live, prosper, and achieve his own happiness, no other man or
group of men may seek to deprive him of a desired benefit or action by the use of force. Prior
to being adopted by government authority, socially emergent concepts of legal concepts arose,
mostly in accordance with the essence of fact. State law and effectively ordered human affairs
predated voluntary modes of government by customary private legislation. Law emerged as a
spontaneous order, rather than one that was implemented. Law is an evolutionary hierarchical
phenomenon spanning a large variety of people's interactions.
Fundamental laws of conduct, as well as institutions and devices for modifying, clarifying,
refining, and enforcing the rules, are all included in the concept of law. People living and
working together naturally produce legislation. There must be a way to settle unavoidable
conflicts if people want to work together. The practice of subjecting human actions to the
governance of laws is referred to as law. Law continued to develop before history was written,
with rules being added one by one as conflicts were resolved. In reality, society's creation of
laws predates both courts and written legislation. Through thousands of years, human acts were
governed solely by customary and private legal systems. The strength of customary law lies in
the fact that it is embodied in people's interactions with one another. The stronger the need for
legislation coercively enacted by the state as a nation shifts away from customary and private
legal structures. The law is largely found rather than developed. Law is a systematic discovery
process spanning subsequent generations' historical perspectives. Law represents and embodies
all men's perspectives throughout history. Customary law refers to laws that have developed
naturally as a result of dispute resolution. Since a naturally evolved and willingly practiced
tradition is more likely to result in reciprocal benefits to the participating parties than a
regulation enforced by a powerful party, customary law offers a more stable mechanism for
exploring the natural law. Natural law is the unchangeable norm to which all human laws shall
conform in order to be valid. Natural law refers to a set of universal laws of correct behavior
and justice that apply to all men. Similarly, a common law system through which law is
established by legal precedent is preferable to one in which courts and judges simply apply
positive laws passed by a legislative body. In cooperative social order, additional institutional
structures are quickly established. Nonviolent methods of settling disputes and clarifying land
interests arise when a charge is contested. In cooperative social agreement, the arbitrary control
of a central authority is not necessary, except as a final coercive court of appeal to enact
decisions and secure rights.
Kohler adopted the idea of law is a process of evolution and that vary with time, circumstances
and situations of Nations. The law also evolve according to the culture, Tradition of the
countries.Herbert spencer also adopted the idea that the law is the product of the evolutionary
force. He promulgated the three fundamental laws of society that are
a. The principles of persistence of force
b. The indestructibility of matter
c. The continuity of motion.
The amalgam of these principles with laws results in the process of evolution. According to
Spencer, genetic factors play a role in a person's adaptation to social environments. Morality,
responsibilities, rights, and equity are all social constructs that people inherit from their
forefathers. Different sociological classes, as well as their rules and institutions, change in this
manner. He claims that humanity progresses through two phases. Peace and equality are
prevalent in the first, which is ancient, while conflict and compulsion are prominent in the
second, which is advanced. Both conscious legislative efforts to strengthen social institutions,
he believed, would fail, and Man would have to rely on the working out of evolutionary laws.
The belief that nature was inherited by law was derived from biological understanding.If we
see the anti-sematic laws of the Germany during Nazi regime of Hitler, the laws were guided
emotionally and militant adaptation were done by biological interpretation. It claimed that
laws are inherited by the blood relation. The preservation of racial purity was main aim of that
regime and of leadership of groups.
Law are changed and evolve according to time and conditions with cultures and practices of
people. Now a days we are talking about making our laws according to the scenario of our
nation this is also the aspect of social and biological. To make the good laws and acceptable
by all there must be harmony among various laws of evolution. That’s why Law is evolutionary
process but there must be harmony among various laws of evolution.

-Arnab Chaudhary
BALLB 4th year
-Advance Jurisprudence