Q.N.1, what do you mean by source of law ?

explain various source of

law.
Ans:- The meaning of the word source is origin. Sources of law means
the origin of law from which rules of human conduct come into
existence and derive legal force or binding characters . Thos things
which directly and indirectly play important roles in the formation
and development of law are called sources of law. The source of law
different point of view of jurist.

Naturalist jurist : "That believe that gods order is source of law as well
as morality,ethics are source of law".
Analytical Positivest school:Austin says that the term source of law has
3 different meanings.
a. direct authority;
b. historical documents;and
c. causes.
Historical Jurists : Savigny,Henrye Maine Law is not made but it is
formed. The foundation of law lies in the common consciousness of
the people which manifests itself in the practices usages and
customs of the people.Therefore,customs and usages are the sources
of law.
Sociological Jurists : They protest against the orthodox
conception of law according to which law emanates from a single
authority in the state . Law is taken from many sources itself.

Sources of law:
1. Primary sources of law
 Constitution
 Legislation
 Precedent
 Customs
 Treaties/ convention

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2. secondary sources of law
 Juristic writing and professional opinion
 Reason
 Religion
 Equity, justice, good conscience
 Foreign laws

Primary source of law:

Constitution: Constitution is one of the major sources of law. It is
supreme Law or Fundamental Law of Land. It is supreme Law or
Fundamental law of land that lays down rules regulating the
organization powers and functions of government. It defines the basic
features of the state and the relationship between the state and its citizen.
Constitution of Nepal is the main legal code of Nation.
Constitution is derived from Latin word 'Constitutor' which means to
establish.
Article 1(1) of the constitution of Nepal 2072 states that "This
constitution is the fundamental law of Nepal. Any inconsistent with this
constitution shall, to the extent such inconsistency be void."
Constitution is the supreme Law and its also called the fundamental law
of land.

Constitution

Act

Rules

By-Rules

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  It is a political-Legal document, which determines the polity of the
state.
 It is a collection of legal and non legal rules.
 It is the mother of all laws because the constitution gives validity
to the all law.
 It is the law of land because no laws surviving against the
constitution. Therefore, nobody can challenge the validity of
constitution.

According to Aristotle: " constitution is the way of life state has

chosen for it self."
Constitution is the primary and important source of law in modern
states that have written constitution. In last constitution is measures
source of law because of the following reasons:

 It given validity and legitimacy to others laws

 It is a fundamental or supreme law of land
 It gives authority to the organs of government to make laws. For
example legislature, judiciary and executive derive authority to
make laws according to constitution.

Legislation:
Legislation is the modern and important source of law it applies
of all people of society. The term legislation is derived from Latin term
"legis" which means Law and "Latum" means to make, put or set. so
legislation means the put or set of law. It is most and power ful sources
of Law which has power to making law amending old Law and
cancelling outdated laws. It is laying down of legal rules of a sovereign.
Example: Drugs Act 2035,Guthi corporation act 2033 etc.

According to Salmond : "Legislation is that source of law which

consists in declaration of rules by a competent
authority."
According to Gray : " It is the formal utterances of the Legislative
organs of the society."
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 Kinds of Legislation:

1) Supreme legislation
2) De-legated legislation
a) Colonial
b) Executive
c) Municipal
d) Judicial
e) Autonomous

a) Supreme Legislation: The types of legislation in which law making

process is carrid out through supreme body is known as supreme
Legislation.It is made by sovereign Law. eg Evidence act,Tribhuvan act
etc

b) Delegated Legislation : The type of ligislation in which supreme

body give authority to subordinated Legislation.It nust be under the
provision of the supreme Legislation.

i) Colonial Legislation : The nation which are not autonomus and under
the control other country and no have supreme capacity to make law
such countries are called colonial.The law made by colonies are called
colonial Legislation.

ii) Executive Legislation: The law making power give to different

departments of executive for the proper administration of day to day
activities is called executive Legislation .eg Nrpal citizenship Rules
2063.
iii) Municipal Legislation: The power of making law is given to
municipal authorities for their control is called executive legislation.
iv) Judicial Legislation : The power or authority given to judiciary for
making rules and regulations for this own procedural is known as
judicial Legislation.
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v)Autonomus Legislation: Autonomus bodies like
university,corporation,companies etc have the power to make rules for
the control of their business. Is called autonomous legislation.

Importance of Legislation
a) Abrogative Power : Legislation have abrogrative power and
amending facility.It can change or annulled or control old laws,which
can't be controlled by different other law.
b) Effectiveness: It separates the element of law making and derseeing it
between the legislature and the Legal ececutive.
c) Written in form: It is predaminant in structure,brief,clear and in
written form.
d) Easy to understand: It is written form so it is easy to understand.
e) Helpful for Court: It help to judges for making their decissions.
f) Scientific: In most of the democtatic country legislation in enacted by
the representative of the people and export group of people in the related
field.

Precedent : It is a body of principles developed by suprwmw court in

the peocess of hearing and deciding a case. It is also called judge made
law.If there is no law or there is law but not clear meaninr then it creates
confusion and problems in decidinf case so in situation supreme court
can make precesent to settle such legal or constitution disputes.
It is binding and must be followed by lower courts.Article 128(4) of the
constitution peovides the power of making precedent to supreme court
and the principle constituted there by must be followed by lower court.
Important role play to developed Precedent in UK Judges Precedent had
been developed in UK since 13th century before the establishment of
Parliament. Austin says Precedents is judiciary law. Bentham says
Precedents is judge made law.

Element of Precedent:

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Obiter dicta: It is a Latin term which means things to said or opinion
given by Judges while making decision.These opinions are not binding
on all the other courts.
Ratio decidenti: It is taken from a Latin term which mwans reasons for
decision.It is binding on all lower court of the country.

Important of Precedent
a) Same decision in similar case : Every one dealing a similar case in
treated in a similar manner there is equality and fairness of justice.
b) Helpful for future cases : It acts as guidelines to decide future case.
c) It save time Labour and economy of the court.
d) Flexibility
f) Educative value: It has great educative value also. It has educative
value to the individuals, Legislators, Lawyers, Judges, Law students
soon.
g) More practical and perfect law : It is Judge made law. Judges
decides the case and gives a ruling in face to face with the problem on it
arises in a actual life.

Types of precedent:
1. original and declaratory precedent
2. absolute and conditional precedent
3. Authoritative and persuasive precedent

Customs: Custom is the oldest form of law making so it is a the oldest

and traditional sources of law. Law based in custom is know as
customary law. it is the foundation of modern Law. It is unwritten Law
created also human beings. It also play important role and fills gaps
while is locking of law. Nepalese Law was accepted some customs
which has legal authority. Why custom is obeyed because people feel
that it embodies principles of justice and public utility. It is important for
maintain peace and order in the society Austin says 'Custom is historical
material source. Savigny says 'Custom is the formal source of Law'.

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Types of customs:
1) legal customs (general, local )
2) conventional customs

Legal custom: A legal custom is one which passed the full force of
Law. these custom operate as a binding rule of law. It is two types:
a) Local custom: The rules and regulation exist in a particular certain
Locality District, Village is called Local custom.
b) General Custom : A general custom is that which prevails through
out the country and constitutes are the source of law of the Land. It is
flow in all people of country. It prevailing through out the entire relation
and not limited to any locality.

2) conventional customs: conventional customs is a customs which is

binding for contract parties. Conventional customs are those customs or
usages which governs the parties to an agreement. E.g. generally found
in trade commerce, rules of selling goods, negotiable instruments and
agencies. Thus those customs are conventional customs which are
governing the parties to an agreement. This type of agreement between
two or more parties.

Features of valid customs:

It fills the loopholes of legislation.
b) It is regarding as the interest of the society.
c) It is older than legislation and precedent
d) It minimizes discretion and partial application of law.
e) It is directly applied as law.

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Treaties and conventions:
Generally treaty is also known as convention, protocal, agreement and
declaration. Treaties and convention are binding source of law. Treaties
is an international agreement concluded between states in written form is
governed by international law e.g treaty of Sugauli.
Convention: agreement between two or more than two countries is
called convention. Like UDHR, ICCPR,

Secondary sources:

Juristic writing and Professional opinion: Judicial writing is a type of

technical writing used by lawyers, judges, expect, scholars, teachers of
law or other express legal analysis legal rights and duties.

Reason: Law is the product of reason of human being e.g it is legally

prohibited that not to get marriage with the close blood relation or incest.

Religion : The various religion followed by different people is also

taken as source of law from ancient time.

Foreign Law: Foreign law is law of the foreign country. In the context
of Nepal constitution of India, Constitution of USA etc are foreign law.

QN 2 What do you understand by legal right ? Explain the various types

of legal rights.
Ans:-
Right is A person claim about his freedom ,Protection, property
by using law is called right. Natural Fundamental legal are right of
person. Right of person protect from law of country and right are
co-related to duty of person.

According to Ihering : 'Right is a legally protected interest'

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 According to Holland : 'Right is a capacity residing in person to
control the actions of others'

Legal Right : Those rights which are recognized and enforced by the
state is called Legal rights. It is guided by legal rules. Legal right is an
interest, recognized and protected by rule of law. A power or privilege
held by the general public as the result of a constitution, statute,
regulation, judicial precedent or other type of law is called Legal right.
A legal right is an interest accepted and protected by law. Also, any
debasement of any legal rights is punishable by law. Legal right are
affect every citizen. Legal rights are equally available to all the citizens
without the discrimination of caste, race and sex. The interest is a claim
which is recognized by and protected by sanctions of law imposed by a
state, which enables one to possess property or to engage in some
transaction or course of conduct or to compel some other person to so
engage or to refrain from some course of conduct under certain
circumstances, and for the infringement of which claim the state
provides a remedy in its court of justice.

Types of legal Rights are:

a) Perfect and Imperfect Rights.
i) Perfect Right: Right which are fixed determine and also enforce able
by law are called perfect rights. Perfect rights correspond to perfect
duties. It is recognized by the law of the country and can get remedies
from court also.
ii) Imperfect Rights: Rights which are not recognized and enforce able
by law are called imperfect right. These are not perfect in nature.

b) Fundamental and Legal Right

i) Fundamental Right: Right which are protected by constitution of a
country are called Fundamental right.
ii) Legal Right: Excluding fundamental right other right protected by
law legal rights.

c) General and Human Right

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i) General Right: Right which are general in nature and protected by
general law are called general right.
ii) Human Right: Right which are related to human beings such as
freedom, equality etc are called human right.

d) positive and Negative Right

i) Positive Right: A positive right is a right when some action needs to
be done by the person who has the corresponding duty.
ii) Negative Right : Those rights which corresponding duty is negative
is called negative duty.

e) Right in Rem and Right in Personam

i) Right in Rem: Right in Rem is the right of a person available against
the world.
ii) Right in Personam : A right in personam is a right against a definite
as a specified person.

f) Propritary and Personal Right:

i) Propritary Right: Propritary rights mean person individual property
right which consists of things asset impossion or ownership of a person.
ii) Personal Right: Personal right mean rights relating to his personal
body. There rights are those rights which can't transfer able.

g) Vested and contingent Right:

i) If a person has a right to a things without any conditions and legally is
called vested right.
ii) Contingent Right: If a person has a some condition fulfill to get
rights is called contingent right.
i) Right in Re-Propria and Right in Re-Aliena:
i) Those rights mean rights over one's own property or things,house,land
etc are called right in re-propria.
ii) Right in aliena : It means those available against the property of
another.

j) Public and Private rights:

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i) Public Right: Those right which is use or exercise against the state is
called Public Right. Right to vote is the best example of public right.
ii) Private Right : Those right which is use against individual is called
private right.eg son has a Right to claim father property.

QN 3. Give the brief concept of property ? Write down the modes of

acquisition and Termination of property.

Ans: Rights of land, house, vehicles, cash etc and also personality
freedom of life reputation etc also called property. In other word
current ownership of person. Not only land house etc are not
property but also the intellectual properties like trademark, patent,
design, good will, formula etc also called property.
Generally the explanation of property depends on the law of a
country.
Article 251 of country civil code 2074 define the property, cash
goods or any work which can be use sell and buy or transfer by
any other ways or can get any benefit its is called property.

Important of property:
a) Property has quality of satisfying human wants.
b) Basic need-foods, clothes, shelter other needs are fulfilled by
property.
c) Necessary for human survival
d) Property is the vital institution of society.
e) Evidence for human survival
f) Inalienable right

Modes of acquisition of Property:

1. Possession: Physical control and continuous exercise in a goods or
material of a person is called possession. Real control over the goods
and intention to use are basic condition for the possession. For example :
A gives his/her land or house to B in rent for 2 years where B has right

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of possession In that house or land for 2 years control over the goods
most be legal in possession.

2. Prescription : Acquisition of right in a goods or property by open and

continuous use for long period of time is called prescription. In
prescription real owner may not another person or not fixed.

3. agreement : An agreement is a formal decision about future action

which is made by two or more countries, groups or people.
4.Inheritence : It refers to the assests that an individual bequeaths to
their loved ones after they pass away.

Transfer of property: An act by which a living person can conveys

property, in present or future to one or more living persons, or to himself
or one or more other living persons.

1. Mortgage deed: Deed is the document that states that you and the
leader have agreed to use the property as a security to protect the
mortgage. The deed contains information on the condition of the
mortgage, repayment schedule, length of mortgage and security for the
mortgage.

2. Sale deed: The sale deed is the main document by which a seller
transfers his right an the property to the purchaser who then acquires
absolute ownership of the property.
3. Will and Gift Deed :

4. Partition Deed : A partition deed for a property is executed todivide

the property among different people among the family members, A
partition is a division of a property held jointly by several persons, so
that each person gets a share and becomes the owner of the share allotted
to him.

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Q.N.4, 4."Law is an instrument of social change". Discuss
Ans:
According to justice Bhagwati, "If the fails to respond to the needs of
changing society, then either it will stifle the growth of the society and
chock its progress or if the society is vigorous enough, it will cast away
the law which stands in the way of its growth. Law must therefore
contently be on the move adopting itself to the fast changing society and
not behind". Peace and security is main function of law. Law is mirror of
society what is good what is bad; it is examined within the society. Law
and social change are two separate term, sometime society is changed by
law and sometime law is changed. Law as an Instrument of social
change
Law is a form of social science & Society and laws are closely related to
each other. Law plays vital and an important role to the fulfillment of
social needs, so for the fulfillment of this social need, law play different
kinds of role, such as constitutionally, judiciary, public interest
litigation(PIL) and so on.
In present –day societies, the role of law in social change is of more
than theoretical interest. In many areas of life such as education, race
relations, housing, transportation, energy utilization, protection of the
environment, and crime prevention, the law and litigation are important
instruments of change. Law plays an important indirect role in social
change by shaping various social institutions, which is turn have a direct
impact on society.
In Nepal, law prohibits the sati, child marriage, child labor, and
advocates free and compulsory primary education, video-conferencing
as valid witness, rehabilitation of the child of prostitute are victim not
accused, protection of women from sexual harassment at working
places, compensation to the victim of crime etc.
some examples of laws as an instrument of social change are :

Chandra shumsher in 1920 jun 9 enforced a rule that totally eradicates

sati system from the society.
Abolishment of slavery system.

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 Polygamy-Muluki Ain 2020 first time imposed punishment. Child
marriage and domestic violence etc

Interim constitution Nepal 2063,made Nepal as a secular state and after

the declaration of Nepal as a secular state Nepalese society has changed
from a particular religion based based society to non religion based
society.

Relevant case laws:

Meera Dhungana vs HMG, 2058:
In this case court declared matial rape as punishable offence for the first
time.
Brown vs Board of education case is best example of social
change,"separate but equal" principle was repeal and provides equal
right between whit and black people.

5. Explain the four classification of law.

Ans: The term 'Law' has been derived from the Latin word 'lag' which
means something which is unformed or fixed.
Law is the set of rules, regulations, social obligations, norms, standards,
and ethics that every individual of society has to follow, law is social
science.

Law can be understand as the body of rules and regulations formulated

to maintain peace and security in the society. There are various kind of
laws based on its general and universal sense.

Classification of law:

1. on the basis of territory

i) national law
 substantive law and procedural law
ii) international law
 public international law
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  private international law

2. on the basis of nature of law:

i) civil law
ii) criminal law

3. on the basis of issue:

 Natural law
 Constitutional law
 Administrative law
 Military law
 Contract law
 Labour law
 Equity law

On the basis of territory:

national and international law:

National Law: Law of a country or a territory of a country which

regulated the activities and relationship between person and organization
is called National Law. E.g. constitution of Nepal ,Act etc. It is made by
legislative body of country and applied by the executive body of the
country.

a) Substantive Law: Law which deals about right and duties of a

natural and legal person and also declares the crime and
punishment is called substantive law. It is also called Law of
Right. It is related to subject and object matters.
b) Procedural Law: Law which deals about the process to active the
rights protected by substantive law is called Procedural law. It is
also called law of Remedies and law of action. It is tool of law.

International Law: Law which governs the relationship between the

state and international organization is called international law. E.g Rules

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of UNO, Rules of WTO etc. It is made by international organization and
applied by consent of national and international organization.

a) Public international law: it is the body of law which governs the

relations between nations in different fields, such as armed
conflict, human rights, the sea space, trade, territorial boundaries
and diplomatic relations.
b) Private international law: it is the body of law which is deals
with the private conflict between the citizens and institutions of
more than two nations. It is mainly concerned with the determining
whether the purposed from is appropriate for dealing with the
dispute and with the determining which jurisdictions of domestic
law is applies to the dispute.

Classification of law On the basis of nature:

Civil law and criminal law:

Civil Law: Law which related right state position property etc of a
person is called civil law. It is related to right of people. For Example:
Law of contract, Family Law etc. In civil case punishment are usually in
form of financial compensation liable for injuries, damages, breach of
contract and so on.

Criminal Law: Law which related to crime is called criminal Law. In

criminal case generally government are one party and individual are
other party. E.g. Rape, Human Trafficking etc. The main objective of
criminal law is to maintain stability on the state and society by punishing
the wrong doer for the action which deem to contrary of the interest of
State and society.

Classification of law on the basis of issue:

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 a) Natural law: natural law is based on reason, fairness, justices, and
it consist of the principle of natural right or wrong. It has various
name such as god made law, universal law, moral law, unwritten
law etc. law can only be true law if it is obligatory. Such rules may
very as various the time, place, and social structure.
b) Constitutional law: constitutional law is that basis and
fundamental law of state which governs or determines the
structures and functions and its various organs. It is also known as
the national law and enforced within the territory of a sovereign
state.
c) Administrative law: administrative law deals with administration
of government and its subordinate organization. It deals with
powers of all such bodies and determines their right and duties.
d) Military law: military law is that law which regulate the conduct
of those serving in the armed forced and are subjected to the
jurisdiction of courts materials.
e) Contract law: contract law deals with trade and business
agreements such agreement may take place between two or more
individuals or company.
f) Labour law: labour law is that kind of law which is related with
employer, employee and government which regulates the
relationship between employer, employee and government.
g) Environmental law: environmental law deals with preservation
and sustainability of environment and environmental resources.
h) Equity law: it is that law which is based on fairness. All legal
systems of the world had developed equity law as corrective to the
law of the land.

Q.N.6, What is duty ? Explain the types of duty.

Ans:
Rules made by law to do or not to do something is called duty.
Responsibility of a person to another person, community and nation so it
is called duty of person.

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According to salmond : "A duty is an obligatary act, that is to say, it is
an act to opposite of which would be wrong".

According to Hibbert : "Duties are imposed on persons and requires acts

and forbearances which are their object."
present constitution, The Constitution of Nepal,2072 has mentioned
following duties of citizens in article 48

Every citizens shall have the following duties:

a. To safeguard the nationality, sovereignty and integrity of Nepal,
While being loyal to the nation.
b. To abide by the constitution and laws,
c. To render compulsory service as and when the state so requires,
d. To protect and preserve public property.

Types of Duty are:

a. Legal and Moral Duty
i) Legal Duty: Duties of a person which are listed in different Law and
constitution are called Legal duty. A legal duty is an act opposite of
which a legal wrong it is punishable.

ii) Moral Duty: Moral duties are imposed on the people on the ground
of some moral principle. Moral duty is not recognized by law , it is not
punishable.

b. Universal/General and Particular Duty

Universal Duty: Binding on all normal member of the community is
called universal duty.

General Duty: Binding on specific classes of normal person is called

general duty.
Particular Duty : Binding between the person who have voluntary
under taken them are called particular duty.

c. Positive and Negative Duty:

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Positive Duty: Positive duties are those which the law obliges us to do
on act, so in simple words, the duty of a person to do a particular act as
guided by law in his/her positive duty.
Negative duty: Negative duties are those which the law obliges us to
for bear from doing an act, and the duty of a person not to do a
particular act as guided by law in his/her negative duty.

d. Primary and secondary duty:

Primary duty : A primary duty is that duty which exists independently
of any other duty or which doesn't need to be stated it exists on its own.

Secondary duty: Secondary duty is one which has no independent

existence but exists only for the enforcement of other duties.

Q.N.7, Explain the essential element of the right.

Ans:
Right is A person claim about his interest freedom, Protection, property
by using law is called right. Natural Fundamental legal are right of
person. Right of person protect from law of country and right are co-
related to duty of person.

According to Ihering : 'Right is a legally protected interest'

According to Holland : 'Right is a capacity residing in person to control

the actions of others'

Elements of Rights are:

a) Subject or Person
b) object of Right
c) Title of Right
d) Content of the Right

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Subject or person: A person who hold right is known as subject or
person of inherence. For example : A house is registered in the name of
A person called subject or person of inherence. It is one of the element
of right.

Object of Right : To establish the right of a person a good of thing

which can be used is essential and the goods which is used by person is
known as object of right . For example : If a person has right in a house,
where the house is known as object of right.

Title of Right: To achieve or hold the right in a good a property, some

process should be adopted which is known as Title of the right. For
example : If a person A buy a land with B he should adopt process of
right of land.

Content of the Right: Person are obligated to do or not to do some

thing in right which is known as content of the right.

Person : To get right there should be a person to perform the duty or a

person right his fulfill when or a person right his fulfill when another
person perform duty and that person is known as person of incidence.

Q.N.8, Write short note on the following:

Ans:
a. Morality: Rules or values which leads people to a certain conduct in
the society is called Morality. It is conformity with
recognized rules of current conduct. morality is an
individuals behavior which leads people to choice what is
correct and what is incorrect. Morality is non specified to
do or not to do doesn't fixed it is depends upon values of
society. For example : Speaking truth, Respecting Senior
citizen, Loving child etc.

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b. Liability: Responsibility of a person which is born to do in case
breach of law by a person is called Liability. It is the
condition when a person does not perform the legal duty.
Breach of law is called wrong and a wrong doer is bond to
perform the penalty or repay as is fixed by law which is
called Liability.

Thank you…..!

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