Nature and Sources of Law Nature of Law

Nature and Sources of Law Nature of Law: Law consists of systems of rules, standards, and procedures that social institutions create and apply. 1. A simple definition would be misleading because law is so diverse and complex. 2. Generally, the recognized rules and principles that govern and regulate social conduct and the observance of which can be enforced in courts. 3. Operates to regulate the actions of persons in respect to one another and in respect to the entire social group or society. 4. Affects every aspects of our lives. 5. Should be followed by everyone concerned.

Contd. . • Law is a formal mechanism of social control. • Different scholars have defined law differently. For example, Salmond says, “Law is the body of principles recognized and applied by the state in the administration of justice”. • Similarly, Blackstone says, “Law is a rule of civil conduct, prescribed by the supreme power of a State, commanding what is right and prohibiting what is wrong”. For Austin, “Law is a command of the sovereign”. • Law is made by a proper authority (Parliament, Council of Ministers etc. ) and its obedience is secured by force or state power. • There is a hierarchy in the authority to make law. In countries which have written constitutions, the constitution is on top of the hierarchy which empowers or authorizes the parliament to make law (they are called Acts of Parliament). Parliament may give authority to the council of ministers or any other body (for example Nepal Rastra Bank) to make law (they are called Rules, Regulations or By-laws). The rules framed by a person or body without proper authority cannot have the validity of law.

Why Law is Needed? • The law has the following purposes: • To protect person and property and maintain peace and order in the society. It prohibits conduct that society believes to be harmful to others (Keeping Order). • To give government and other authorities the power to act for the benefit of society in general. • To provide a framework that gives individuals broader freedom of choice. For examples, it enables persons to make legally binding agreements enforceable in the courts (Honouring Expectations). • To promote equality and to achieve different socio-economic goals (such as establishing a welfare state). • To influence the conduct of persons and to preserve, guide and advance the social values of society (such as sustaining liberty and justice).

Characteristics of Law • Consistency (apply equally and uniform manner). • Predictability (enable to predict the outcome of a course of conduct). • Pervasiveness (cover all necessary areas). • Flexibility (changes according to the needs of the society). • Enforceability (provide effective remedy in case of violation).

Sources of Law • Source is the place from where something originates. Therefore, 'source of law’ means the origin from which rules of human conduct come into existence and gain legal force or binding character. • Laws are invariably derived from a number of sources including legislation, judicial precedent, customs, and international treaties and conventions. Legislation: • The term ‘legislation’ refers to that body of law formally enacted or made by the institution of state which has law-making responsibility under the constitution. • A substantial proportion of current law is derived from legislation or statute enacted by Parliament. • Statutes passed by Parliament are referred to as primary legislation.

Contd. • There are many occasions where parliament delegates its general law-making powers to other persons or bodies. • Parliament may enact an enabling Act so as to provide the broad framework, the details being filled in by the executive branch of the government (such as the Council of Ministers or the President) by means of delegated legislation. • As its name suggests, delegated legislation is law made by a body or person to which Parliament has given limited powers of law-making. More often than not, authority will be delegated to the Council of Ministers, but it may also be conferred on local authorities or other public undertakings. • Delegated legislation can also take the form of by-laws. By-laws are the means whereby a local authority, for instance, can make legally binding rules for local application.

Precedents • In addition to legislation, precedents (some call them judicial precedents) or the previous decisions of the courts also important sources of law. • The precedent is not the decision itself reached by the court but the rule of law contained within that decision. This element is known as the ratio decidendi and must be distinguished from the obiter dicta (things ‘said by the way’). • Put very simply, the ratio of a case is the essential steps in the legal reasoning which led the court to make that particular decision. At the end of a case, a judge, before handing down a ruling in favour of one or other of the parties, gives his or her reasons for the decision. • Most of the judgments given by the higher courts are published in one or more of the series of law reports available. • Judicial precedent is based on the rule that the previous decisions of a higher court must be followed by the lower courts.

Customs • Customs is a habitual course of conduct observed uniformly and voluntarily by the people. Early societies developed particular forms of behaviour which came to be accepted as social norms to be followed by the members of the community to which they applied. • Today customs would be regarded as usage recognised by law, whether by judicial precedent or through statutory intervention and hence they are largely of historical interest. • Occasionally, however, they are recognised by the courts as being of local significance and may be enforced accordingly as exceptions to the general law (e. g. concerning matrimonial relationship). • • • A custom must have the following characteristics to have a force of law: It must be ancient or in practice since time immemorial. It must have been practiced continuously. It must be rational or reasonable. It must be clear, certain and consistent. It must not conflict with any existing law, e. g. legislation or precedents.

Academic writing or the opinions of experts • In many countries, academics have had a significant influence on the interpretation and development of the law. • While not representing a formal source of law in the same sense as legislation, for example, the opinions of leading academics and commentators are, nevertheless, given substantial weight by the legal profession and judiciary alike. • In France and Germany, the works of highly reputable university professors have great persuasive authority and are regularly quoted by lawyers when presenting cases and, indeed, referred to by judges in court decisions. • In England, on the other hand, it is comparatively rare for a lawyer to cite the opinions of even leading academics when presenting a case before a court. Over the years, judicial attitudes have gradually changed to the point now where the views of modern-day eminent academics are given due consideration when the court thinks it appropriate.

International Treaties and Conventions • International treaties and conventions are also important sources of law. In the case of Nepal, according to Sec. 9 (1) of the Treaty Act, 2047, the provisions of any international treaty or convention to which Nepal is a party prevail over the national law, in case there is any divergence between the two. • Thus, the provisions of the international treaties and conventions to which Nepal is a party are even superior sources of law in Nepal.