Major Legal System of The World and Features of Nepalese Legal System
Major Legal System of The World and Features of Nepalese Legal System
Major Legal System of The World and Features of Nepalese Legal System
Saroj Ghimire
Lecture 3
March 2, 2012
What is mean by legal system?
How a particular system is governed by?
How laws are made in a particular state?
From where the laws are originated or emanated?
From where the state exercises its power
How the states institutions or organs functions?
What kinds of instruments gets the legal validity?
Or enforceability
What other things requires to be followed?
Who makes laws?
Major Legal System
1. Common law system/ Anglo American
UK, USA, AUSTRALIA, INDIA, CANADA,
PAKISTAN
2. Civil law system/ continental law system:
FRANCE, GERMANY, SPAIN, SWISZERLAND
3. Socialist legal system:
CHINA, VIETNAM
4. religious legal system
ISALAMIC COUNTRIES
COMMON LAW
Common law is law developed by judges
through decisions of courts (called case law),
rather than through legislative statutes or
enacted laws or executive action.
This system rely on precedential case law or
precedent. (binding of decision made by
higher court).
Common law legal systems are in widespread
use, particularly former colonies of the
British Empire, including the United States,
Pakistan, India, Ghana, Canada, Ireland, New
Zealand, South Africa and Australia
History of the common law
The term "common law" originally developed after the Norman
Conquest of England.
The "common law" was the law that the whole country had in
common, rather than particular tribal laws that might apply
between smaller communities.
The decision made by the judges were recorded and such
decisions were used in later cases of similar nature.
As the decision were followed, it acquired its strength and
followed continuously and consistently until they are overruled or
until the legislation enacted by the parliament.
Thus, the judge made decisions acquired its authority.
Features of Common law:
Not made by parliament but made by courts/
judicial decisions.
The common law is more flexible than
statutory laws or enacted laws
Common law courts are not absolutely bound
by precedent, but can (when extraordinarily
good reason is shown) reinterpret and revise
the law, without legislative intervention, to
adapt to new trends in political, legal and
social.
The common law evolves through a series
of gradual steps, that gradually works out
all the details, so that over a decade or more,
the law can change substantially but without
a sharp break.
Mostly developed from the customs and
common practices.
Courts are given some discretion in deciding
the cases.
Laws are not codified.
Courts have given the authority to interpret
the laws made by the parliament.
In common law jurisdictions, legislatures
operate under the assumption that statutes
will be interpreted against the backdrop of
the pre-existing common law and custom.
Continuous growth after 1066 AD
Civil law/ Continental law
Who follows?
Also called codified legal system.
Codified means all laws are incorporated in codes or
recorded in the book.
Started by Napoleon through Napoleon Code 1806.
Civil Procedure Code 1807
Commercial Code 1807
Penal Code 1810
Penal Procedure Code 1808.
Now, New Civil Procedural Code 1976 and Criminal
Procedure Code 1958 have been functioning.
It is a legal system inspired by Roman law,
the primary feature of which is that laws are
written into a collection, codified, and not
determined, as in common law, by judges.
The principle of this system is to provide all
citizens with an accessible and written
collection of the laws which apply to them
and which judges must follow.
It is the most prevalent and oldest surviving
legal system in the world.
Continental legal system is sometimes
inappropriately referred to as Roman law or
otherwise called Romano-Germanic law,
especially by people under its jurisdiction.
The concept of codification was mostly
developed during the 17th and 18th century.
The political ideal of that era was expressed
by the concepts of democracy, protection of
property and the rule of law. That ideal
required the creation of certainty of law,
through the recording of law and through its
uniformity.
So, the mix of Roman law and customary
(local) law ceased to exist, and the road
opened for law codification.
The French Napoleonic Code of 1804,
Austrian civil code of 1811 and the German
civil code of 1900 were the most influential
national civil codes.
In Nepal also the draft of Civil Code and
Criminal Code have been made.
Religious legal systems/ Islamic
System
Religious law refers to the notion of a
religious system or document being used
as a legal source
The main kinds of religious law are Sharia
in Islam, Halakha in Judaism, and Canon
law in some Christian groups.
Sources of Islamic law I.
The primary sources of Islamic law is Qur'an .
It also has certain laws which derived from principles
established over time by Islamic lawyers
Socialist law
Socialist law is the official name of the legal system used in
Communist states.
Laws are made to divide class, to exploit.
Made by the rulers against ruled.
There will be conflict between rulers and ruled.
Majority of ruled will revolt against rulers and finally ruled
controls the power.
Thus laws requires to be wither away as in the pure
communism people are governed by them selves.
Now the fact that it is no longer in widespread use following
the dismantling of most communist states.
Characteristics of Nepalese legal
System
Not ruled by Britishers, nor French nor
religion.
Nepal is a sovereign and independent
country.
Ruled by various monarchs but not by
foreigners.
Unified by Prithivi Narayan Shah.
Features of Nepalese legal
System
Each country often develops variations on each system or
incorporates many other features into the system. Nepal also has
this feature due to which it has adopted mixed system.
Nepal has mixed system of law:
Elements of Common law:
Supreme court is court of record.
Its decisions shall be followed.
Supreme Court has power to interpret laws and makes new laws.
For eg: Reena Bajracharya, Constitution making in 6 months,
Supreme court can instruct the legislature to make laws.
Procedural law has to be followed.
Law of writs.
Legislations can be reviewed.
Elements of Civil Law:
Muluki Ain 1910 and 2020 (Based on
Napoleonic Code).
Draft of Civil Code and Procedural Code.
Parliament can make laws which may be
against the decision in this situation the
laws supersedes the case laws.
Follow of Religious Law: (Hindu law):
Marriage, partition, succession, adoption
etc.
Uncodified laws:
Uncodified laws creates confusion as similar
provisions may be found in several laws. For
example Contract Act and Children Act for
contract.
Independence of Judiciary:
Procedural laws are strongly followed.
Law of writs dominates other laws or
government too. (constitution making
dead line is 6 months, instruction of the
courts to make laws to the legislature).
Decision of supreme courts are binding.
Supreme court can verify, test laws made
by the parliament if they are found to be
inconsistent with the constitution.