Notion of Legal system
B. Definition of legal system through Jurisprudential view
E. Some of the important Nepali cases
1) Vishnu Lama v. District Administration Office Kathmandu (N.K.P. 2072, issue 8, D .No. 9451)
2) Baburam Giri, the office of the Council of Ministers, N.K.P. 2066 Issue 3 No. No.8096
3) Bharatmani Jangam Vs. President's Office (N.K.P. 2068, Issue 8, No. 8662)
4) Rajiv jung Shah Vs. office of prime minister, Order Date: 2074.8.13 - , case number 072 –wc -0020
5) Bharatmani Jangam Vs. Parliament Secretariat (N.K.P. 2057, Issue 9/10, No. 7030)
The General Meaning
As per the Assistant professor Dr .Bijay Prasad Mishra the phrase "notion of legal system" can be understood by dissecting the phrase and understanding the term individually. Consisting of three words, namely ‘notion, ‘legal’ and ‘system ’ their meaning can be understood following :
1. The term “notion” .
refers to “an idea, concept, or understanding of something, often in a general or abstract sense”. [1] In this sense, it articulates a mental impression or perception of a particular subject or topic. Notions are the building blocks of our understanding and knowledge about the world around us. Notions can be simple or complex, concrete or abstract. They can arise from personal experiences, education, cultural influences, or information received from various sources. Notions form the basis for how we interpret and make sense of new information and experiences.
2. The term “legal”
Similarly the term “legal” have wide array of its meaning. The simplest yet subtle is “it as relating to or concerned with the law; allowed by law; conforming to the law”.[2] The system where we find vast and heterogeneous mass of normative materials or aggregate of legal norms.[3]
3. The term “system”
Another term “system” demonstrates its meaning as “a set of interconnected or interrelated elements, components, or parts that work together to form a unified whole, often designed to achieve a specific function, purpose, or objective. Systems can be found in various domains, including scientific, engineering, social, and organizational contexts.”[4]
Consequently, when these individual terms come together, they become a set of words called as “notion of legal system”. Therefore the "notion of a legal system" refers to the general concept or understanding of what a legal system is and how it operates. It encompasses the fundamental principles, components, and characteristics that define the framework of laws, rules, and institutions that govern a society or a specific jurisdiction.
B. Definition of legal system through Jurisprudential view
In lay man’s version
Legal system is a “system of rules that governs the social behavior of people in a particular society” [5] . This simple definition shows that how the structure of rules is expected to manage the behavior, interest[6] .
1. Antony Allot
Antony Allot rightly says, 'If you wish to live in a society, let there be legal system.' emphasizes the fundamental importance of having a legal framework in any organized human society. The statement suggests that for a community to function effectively and peacefully, the presence of a well-defined legal system is essential. Allot equates legal system with the system of communication and “It is a member of the same super-genius as a language[7]. It is a system of interaction through behavior. It is more or less transmitted from one generation to another .
2. Dr Amber Pant
Dr Amber Pant on his article “ Jurisprudential Study on some Fundamental Aspects of Legal System” states that “Legal system is not a notion of recent vintage, it has been control preoccupation of jurisprudence for centuries. As an each legal theory & an individual jurists, lawyer & judges define legal system in their own approach, it is difficult for us to find a clear & common approach acceptable to all. As a result many aspects of legal system are found to have been dealt with differently.”[8] –
3. Jeremy Bentham
An influential English philosopher and legal theorist portrayed the legal system as "only the sum total of laws, and one has only to identify a law." [9] This statement reflects his positivist approach to law, which emphasizes the importance of written laws as the primary source of the legal system's authority and legitimacy.
4. Dais
"Legal system is more than the sum total of laws or legal materials. Legal system is the pattern of interrelation of this material and differs from the latter in its overall purposes and t functioning. Thus, a railway system is not just the sum total of tracks and rolling stock stacked together.The system is the pattern of their linkage and distribution. With regard to a legal system, as a generalization, it may be stated that the pattern of linkage imparts unity to all its components which can be discerned through the concept of validity and through the institutional structure."[10]
Dais expands upon the notion of the legal system beyond a narrow view that considers it solely as the sum total of laws or legal materials. He argues that the legal system is much more than just the collection of laws; it involves the intricate pattern of how these materials are interconnected and how they work together to achieve broader objectives. In this perspective, the legal system is more like a cohesive structure with specific purposes and functions, rather than a mere compilation of individual legal elements.
The analogy Dais provides to illustrate his point is that of a railway system. He suggests that a railway system is not merely the accumulation of tracks and rolling stock assembled together. Instead, it involves the organization and coordination of these elements to serve a larger purpose: to transport goods and people efficiently and effectively. The tracks and rolling stock are interconnected, and their arrangement is designed to fulfill specific objectives related to transportation.
Likewise, Dais contends that the legal system is more than just a collection of laws and legal materials. It involves the complex interactions, relationships, and structures within the legal framework, all working together to achieve certain societal goals. These goals could include maintaining social order, ensuring justice, protecting individual rights, and promoting the welfare of the community.
By emphasizing the pattern of interrelation within the legal system, Dais suggests that a deeper understanding of how laws, legal institutions, and legal practices interact is necessary to grasp the true essence of the legal system. This perspective acknowledges the dynamic and interconnected nature of law and legal processes, which cannot be fully appreciated by merely examining isolated legal components. It underscores the importance of examining the systemic aspects of law to comprehend its overarching purposes and functioning within society.
This broader perspective recognizes that the legal system operates within a framework that includes courts, legal professionals, administrative bodies, and other entities involved in the administration of justice. This provides that this legal system is not only connected with legal norms rather with other norms as well . [11]
5. Rene David and J.E.C. Brierley, legal scholars and authors of the book "Major Legal Systems in the World Today:
An Introduction to the Comparative Study of Law," also present a perspective complementary to Dias's view of the legal system. In their work, David and Brierley argue that “a legal system is not merely the sum total of all the rules that are valid in a particular country and at a specific time.”[12] They emphasize that a legal system is a complex and dynamic entity that goes beyond the mere compilation of rules and regulations.
6. Rudolf von Jhering
A prominent legal scholar and jurist put forth the idea that “the concept of law comprises two essential elements: a system of purposes and a system of their realization.”[13] This perspective emphasizes the dynamic nature of law and its fundamental objectives.
(Law = उद्येश्य + realization )
Here's an explanation of Jhering's statement:
System of Purposes: Jhering suggests that at the core of any legal system, there exists a set of purposes or objectives that it seeks to achieve. These purposes represent the underlying goals and values that the law aims to promote within society. For example, these purposes might include maintaining social order, ensuring justice, protecting individual rights, fostering economic development, and resolving disputes.
System of Realization: The second element in Jhering's concept of law is the system of realizing these purposes. It refers to the mechanisms, institutions, and procedures through which the legal system strives to achieve its objectives. This includes the legal framework, the court system, legal procedures, enforcement mechanisms, and the role of legal professionals, such as judges and lawyers.
Interdependence: Jhering's view emphasizes the interdependence of these two elements. The system of purposes informs and guides the development of legal norms and principles, which, in turn, shape the realization of these purposes through legal institutions and processes. The system of realization, in its functioning, must align with the fundamental purposes of the legal system to achieve its intended goals.
In summary, Rudolf von Jhering's idea about the concept of law revolves around the inseparable relationship between a system of purposes and a system of their realization. This dynamic interplay underscores the fundamental objectives of the legal system and the mechanisms through which these objectives are pursued within society. By understanding these two elements, one can gain insight into the essence and functioning of a legal system and its impact on the broader community.
7. Steven Vago
In his book “Law and Society” it puts “Where there is human society, there exist some patterns of men behavior regulating and maintaining certain form of interrelation among its mentors. These patterns of behavior are molded by culture, traditions and and historical facts and guided by a philosophy underlying these facts. These norms are unique in nature ie. They have distinguishing features that differentiate them from other systems. These norms or patterns of behavior are termed as law and the totality of the norms themselves, institutions responsible for creating, enforcing and interpreting these norms, the process and method of thinking is called legal system. [14]
Therefore this indicates that after formation of law :
Totality of laws + institutions ( creation + enforce + interpreter ) = legal system
8. Roger Cottrell
In "The Sociology of Law," Roger Cottrell emphasizes that a particular law or legal provision is not synonymous with the entire legal system. Instead, the legal system is viewed as an integrative sub-system of society that interacts with other sub-systems.”[15]
9. Amber Pd.Pant
He puts forward it as “Legal system and other social systems have close relation and make reflections or impact to each other. Legal system is influenced by other social systems and also influences other systems on the same way. In each legal system traditions, beliefs, recognitions, social ethos, milieu, climate, people's need and aspiration are considered as an essence of it without which legal system will not stand and functions. [16]
10. M.J.Sethna,
According to M.J. Sethana, a famous Indian jurist, the legal system of a state is the very machinery of the organization of that state.
11. Upendra baxi
In this light legal system can be viewed from three dimensions.
Firstly, legal system can be viewed as a normative system or aggregate of norms of behavior applicable to the members of a community to regulate or control their behavior.
Secondly, it can be viewed as the social system or the system of interaction between makers, interpreters, breakers and enforcers of law in a society and
lastly, legal system is the social control system.[17]
12. Joseph Raz
To understand the theory of legal system he pose four criteria . As a disciple of H L A Hart his this approach is called Imperative approach. He forwards that the answer to the concept of legal system should provide solutions to 4 problems and these 4 problems are solved by the 4 critera .
|
Problem of existence, |
Criteria of existence, |
|
Problem of identity , |
Criteria of identity , |
|
Problem of structure & |
Criteria of structure & |
|
Problem of content |
Criteria of content |
These following problems and criteria should be analyzed in order to understand. [18]It is considered that every theory of legal system must provide solution of the first two criteria since existence & identity criteria as these are necessary part of any adequate definition of system. But the latter two are not common to all legal system .[19]Therefore, many jurists have given less importance to the criteria of structure & content.
1. The Criteria of Existence
Joseph raz in his “notion of legal system” puts forward the ideas of various scholars in order to define the legal system and how they meet up with his criteria of existence. For example Austin, Kelsen and Hart have defined law differently. Their notion about legal system can be derived from their definition of law. Their definitions also tries to solve the question /problem of legal system’s existence .
When Joseph raz posed the question –
When does a legal system exist and when it ceases to exist?
Following jurist have defined seemingly :[20]
a. Austin’s viewpoint
According to Austin a legal system exits only if:
Ø A person is sovereign i.e. his orders are habitually obeyed by the citizens and his command being laws are generally efficacious.
Ø Its supreme legislature does not habitually obey to others.
Ø Its supreme legislature is superior to the law subjects' relating to every law.
Ø All laws are legislated by one person or group of person.
As per Austin's view there is only one legislature or law making authority. For Austin a primary condition for the existence of a legal system is coercive force. The efficiency only contributes to the personal obedience of the population to the supreme legislature.
Criticism : Raz views that to be a sovereign and to be superior is a different thing. A man can be a sovereign and yet not superior and the bulk of population can habitually obey without being inferior relative to every law.
b. Kelsen
According to Kelsen a legal system exists if and only if it reaches a certain degree of efficacy. Kelsen's idea of efficacy can be traced through the people's attitude to the law and their actual behavior . i.e
Ø Obedience of people towards that norms
Ø Application of sanctions permitted by the norm
Here by replacing Austin’s – “personal obedience to the sovereign by obedience to the laws and application of sanction, Kelsen has been able to improve upon the Austin's criteria of existence.
Here Jospeh Raz further adds that “the obedience to the duty imposing laws (D-laws) may be relevant to the existence of a legal system , here one must
i. Avoid oversimplified computation
ii. Attribute different weight to different offence
iii. Take into account legally irrevelant circumstances and intensions
iv. Take into account knowledge of law and its influence in people’s behaviour (eg – referendum , EPA 2075 – every 10 years there must be review and inclusive policy need to be modified , time to time review is conducted . this causes filteration of laws)
v. Take into account the use of powrs as wellas the obedience to duties
vi. Attach greater importance to constitutional laws .
c. H L A Hart
Prof. H. L. A. Hart assigns special importance to the official behaviors for the existence of a legal system. According to him legal system arises from the combination of :
Ø primary and secondary rules.
Ø Primary rules are those, which impose duties, and secondary rules are power-conferring rules.
Ø There are three types of secondary rules, i.e. rules of recognition, rule of change and rule of adjudication. But a legal system can only be said to exist if it is effectively in force i.e. applied by institutions or officials. Thus the existence of a legal system depends on the efficacy of law.
According to Prof. H.L.A. Hart, there are two minimum conditions for the existence of legal system. These rules of behavior which are valid according to system's ultimate criteria of validity must be generally obeyed . and its rules of change and adjudication must be effectively accepted as common public standard of official behaviours by its officials.
d. Joseph Raz
Joseph Raz places significant importance on the people's attitude towards the legal system, and he believes that the existence of a legal system depends on its efficacy, which can be determined in three ways:
1. Obedience to Laws: The existence of a legal system relies on people's obedience to its laws. This means that those upon whom legal duties are imposed must adhere to the laws and regulations. For example, in the context of voting, only eligible and competent individuals can cast their votes, and their adherence to voting laws is crucial for the legal system's functioning.
He further adds that the obedience to all laws may be relevant to the existence of a legal system; one must-
i. avoid oversimplified computation,
ii. attribute different weight to different offense,
iii. take into account legally irrelevant circumstances and intentions,
iv. take into account knowledge of law and its influence in peoples behaviors, [21] ( eg – referendum , EPA 2075 – every 10 years there must be review and inclusive policy need to be modified , time to time review is conducted . this causes filteration of laws . )
v. take into account the use of powers as well as the obedience to duties, and
vi. Attach greater importance to important constitutional laws.[22]
2. Degrees of Obedience: Raz points out that the existing legal system may not always be the one to which the greatest degree of obedience is rendered. This indicates that the level of obedience can vary depending on the specific context and laws in question. Previous legal systems may continue to exert influence and adherence to some extent.
3. Replacing Constitutional Laws: Raz acknowledges that a new constitutional law can replace a previous constitutional law, leading to a transformation of the legal system. Constitutional changes can significantly impact the legal landscape, affecting how laws are interpreted and applied.Example : the case of Vishnu Lama v. District Administration Office Kathmandu (N.K.P. 2072, issue 8, D. No. 9451),
e. Ambar Prasad Pant
He offers his perspective on Joseph Raz's view, stating that Raz Unless fundamental changes have occurred, it can be said that the legal system existence. Panta further presents an essential formula to understand the criteria of a legal system's existence, which he abbreviates as OEC:
O of Obedience: The first component, "O," represents obedience to the laws. As mentioned before, the adherence of individuals to the legal system's laws and regulations is a crucial factor for its existence.
E of Efficacy: The second component, "E," stands for efficacy. The legal system's efficacy refers to its ability to function effectively in achieving its intended objectives, maintaining order, resolving disputes, and upholding justice.
C of Continuity: The third component, "C," represents continuity. It refers to the legal system's endurance and continuation over time without any fundamental changes that might challenge its existence.
In summary, Ambar Prasad Panta explains Joseph Raz's view that a legal system's existence is contingent upon obedience to its laws, its effectiveness in achieving its objectives, and its continuity over time. If these criteria are met, it can be said that the legal system exists and functions. Panta's formula, OEC, provides a concise way to understand and evaluate the essential elements that determine the existence and viability of a legal system.
2. The criteria of identity
The criteria of identity, as proposed by Joseph Raz, is another criterion used to define a legal system. This criterion addresses the question of the identity of a legal system and seeks to determine:
a. Which Laws Belong to What Legal System (the Origin):
The focus of this criterion is on identifying the laws that pertain to a specific legal system and distinguishing them from laws that belong to other legal systems. It involves understanding the boundaries and scope of a legal system and determining which rules and regulations are part of that system.
In legal theory and jurisprudence, the concept of identity is essential for delineating the boundaries of legal systems. Different jurisdictions and societies may have their distinct legal systems, and identifying the laws that pertain to each system helps in understanding and analyzing their characteristics, application, and interactions.
Joseph Raz's criteria of identity, along with other criteria such as efficacy, obedience, and continuity, contributes to a comprehensive understanding of what constitutes a legal system and how it operates within a society. The combination of these criteria helps in evaluating the nature and functioning of legal systems, their distinct features, and their role in governing human behavior and societal interactions. In his book “ the concept of legal system “ Joseph Raz have provided viewpoint of following jurist on this criteria on following manner :
a. Austin
John Austin, a legal theorist and philosopher, presents a view of legal systems based on the principle of origin, also known as Austin's criteria of identity. According to Austin:
a. Legislative Origin: Austin's criteria focus on the legislative origin of laws within a legal system. A law belongs to a particular legal system if it was enacted by the sovereign authority or a subordinate authority acting under the delegation of the sovereign's power. In other words, the source of the law's creation determines its inclusion in a specific legal system.
b. Sovereign Enactment: The legal system, according to Austin, contains all the laws made by the sovereign, who is the highest authority in the political structure. The sovereign can be an individual or a group of persons with supreme legislative power. All laws enacted directly or indirectly by the sovereign are considered part of that legal system.
c. Principle of Origin: Austin's criteria of identity can be seen as a variant of the principle of origin. This principle holds that laws within a legal system are identified and categorized based on their source or origin. The laws that trace their origin to the same legislative authority belong to the same legal system.
d. Principle of Membership: The principle of membership is related to the principle of origin and involves determining which laws are members of a particular legal system. If a law is enacted by the same sovereign or authority that created the other laws within that system, it is considered a member of that legal system.
In summary, Austin's view of legal systems is founded on the legislative origin of laws, where the source of enactment determines their inclusion in a particular system. All laws created by the sovereign or subordinate authority acting under the sovereign's delegation are part of the legal system. This principle of origin, along with the principle of membership, helps to identify and categorize laws within a legal system based on their common source of creation.
The principle says that the membership of laws in a system, and the identity of the system, are completely determined by the origin of the laws; the origin of a law being the set of fact which brings it into existence.
Here , Joseph Raz enumerates the three features of Austin’s notion of legal system :
1. the origin of every law includes an act of legislation that is deliberate behavior expressing a wish that some other persons will behave in a certain way;
2. ultimate origin of every law is legislative act of one person or body of persons. All laws have an ultimate source and
3. continued existence of the ultimate source is necessary.
Kelsen
Hans Kelsen, another influential legal theorist, introduces the concept of the basic norm as a substitute for Austin's sovereign in defining the identity and membership of a legal system. Kelsen's approach places the basic norm as the fundamental norm upon which the entire legal system rests.
For Kelsen, identity of legal system as well as the membership of law in a system is determined solely by the facts of its creation i.e. by its origin. Basic norm guarantees the internal coherence of the system. The principle of non-contradiction is contained in the basic norm. The criteria of identity and membership provide the methods to determine whether any given norm belongs to a given system or not and also helps to establish the total membership that is the identity of a system.
Joseph Raz maintains that Kelsen avoids some of the weaknesses of this proposition. For Kelsen, constitutionality of the creation of the laws of one momentary legal system relative to the other is the deciding factor. (A momentary legal system is a legal system at a particular point of time.)[23]According to his theory two momentary system A and B belong to the same system,
- if and only if, the creation of all the laws of B which are not identical with the laws of A was authorized by the laws of A.
- The constitutional continuity of law is only one and not the most important factor in determining whether two momentary systems belong to a legal system. The creation of new original law disrupts the continuity of legal system, if it is a constitutional law of great importance. Thus, the criterion of identity of legal system is, therefore, determined not by jurisprudential or legal consideration but belonging to other social sciences.
b. Holland
Holland defines law as general rules of external human conduct enforced by a sovereign political authority. It is not the way in which laws are created but the way in which they are enforced that determines the nature as positive laws as distinguished from non-legal, and it is this that determines also to which legal system a law belongs. Austin emphasizes in the creation of law, while Holland emphasizes on the enforcement.
But Raz finds some defects in Holland's definition also. He says;
- not every rule is enforceable (power conferring law),
- no law which is not a norm can be enforced.
Salmond
Both of these shortcomings were avoided by Salmond. According to him 'law consists of the rules recognized and acted on by courts of justice'. This definition accepts various sources of law but it should be recognized as law by the court. Whereas, there are various ways in which laws are created, all law, however made, is recognized and administered by the courts, and no rules are recognized by the courts which are not rules of law'. Therefore, we must go to the court and not legislature to ascertain the true nature of the law.
Salmond differentiates legal systems from other normative systems. It is the normativity of law not its more importance. The institutionalized nature of law is manifested in coercive nature is of the existence and operations of the courts, i.e. of certain law applying organs. Bentham Austin, and Kelsen all concentrated on law creating organs but Salmond emphasized on law applying organs which recognizes every law of the system. It is true that legislative method of law creation is characteristic feature of modern legal systems; it is not the characteristic of every legal system. But we cannot imagine a legal system without legislation.
For H.L.A Hart
H.L.A. Hart, a prominent legal philosopher, introduces the concept of the "rule of recognition" as a key element for identifying a legal system. According to Hart: Rule of Recognition is the rule of recognition is a fundamental rule within a legal system that serves as a criterion for identifying and distinguishing legal norms from non-legal norms. It is a meta-rule that specifies the criteria by which other rules are recognized and accepted as valid laws within the legal system.
Joseph Raz
The criteria of identity is analysed through following criteria too.
Law and existence of law: According to Joseph Raz, existence of law itself denotes the identity criteria of law because concerned rule specifies the applicability of particular provision in given time span. Rule itself directs courts to apply given provision of law, which clearly identifies the identity character of legal system.
Existence = identity
Application of existing law and creating new law: All the rules are not clear. In that situation, judge has the discretionary power. It does not mean they have arbitrary power to do everything. Their discretionary power is also regulated by law. They can use personal opinion in reference to reason for action but not blindly.
Role of judges in determining the identity of law
Relationship between law and state: Joseph Raz clearly says that to get the identity of given legal system, continuity of both law and state are necessary. However, Kelson only focuses on continuity of law and Bentham only focuses on continuity of state. Both concept of Kelson and Bentham are wrong. They forget the role of continuity of both things to get identity criterion of legal system. In fact, continuity of political system denotes continuity of legal system and otherwise.
Raz in his post-script says that the identity of legal system depends on the identity of the social forms to which they belongs, the criterion of identity of legal system is therefore determined not only by jurisprudential or legal consideration by other consideration as well considerations belonging to other social science.
3. The criteria of structure
This is the third criteria to define a legal system for Raz . Every legal system does not have similar structure of law. We can find similarity only in the nature of expression of duty imposing and power conferring norms. Each and every legal system consist it. However, power regulating and punitive norms or legal system can also be important structure of norms
a. Bentham
One of the Bentham's greatest insights into the structure of legal system is his distinctive doctrine that “the powers of legislature must be broken into shares. The legislature himself is confined to enacting general laws but these may confer mandates on individuals to “legislate de singulis” regarding specific matters), .[24]
Division of Legislative Powers: Bentham argued that the powers of the legislature should be "broken into shares" or divided among different bodies or individuals. This concept is based on the principle of the separation of powers, which aims to prevent the concentration of power in a single authority and to establish checks and balances within the legal system.
Delegation of Legislative Authority: Bentham also recognized that while the primary function of the legislature is to enact general laws, there may be instances where it is necessary to delegate legislative authority to specific individuals or bodies for the purpose of making rules or regulations that apply to particular cases or situations.
b. Austin
According to Austin legal system has both imperative and punitive parts. If a law has only imperative part there should be corresponding punitive law .The relation between these two rules is punitive relation.
c. Hart
H.L.A. Hart, in his influential work "The Concept of Law," introduces the idea of a legal system as a combination of primary and secondary rules. Here's an overview of Hart's concept:
Primary Rules: Primary rules are the core norms within a legal system that impose duties and obligations on individuals. These rules govern the behavior of people and outline what they are required or prohibited to do. For example, laws against theft, murder, and contract breaches are examples of primary rules
Secondary Rules: Secondary rules are rules that deal with the creation, modification, and enforcement of primary rules. They are essential for the functioning and maintenance of the legal system. Hart identifies three types of secondary rules:
Rule of change: this rule was introduced to remove static nature of primary rule. This rule empowers an individual or body of persons to introduce new primary rules for the individuals and to eliminate old rules. Such rule of change may be very simple or very complex. It may be unrestricted or limited in many ways. The rules may define in more or less rigid terms the procedure to be followed in legislation.
Rule of Adjudication: the defect of inefficiency will be remedied by secondary rules i.e., Rule of Adjudication which gives power to individuals to adjudicate the dispute and to decide whether a primary rule has been violated or not. It signifies the procedure to be followed the person empowered to adjudicate etc.
Rule of Recognition: this rule was introduced to remove the defect of uncertainty from the primary rules. As said earlier, the rules of one individual may differ from other because there is no authoritative text which signifies that this rule is primary rule. So, the rule of recognition is nothing but a written form of rules. In other words, it a public document which contains a list of rules which is prevalent in society. It is on the basis of this rule of recognition that the validity of any rule depends in the society. In Hart’s conception of law more prominence is given to the rule of recognition.
In summary, H.L.A. Hart defines a legal system as the combination of primary rules that impose duties and secondary rules that deal with the creation, modification, and enforcement of primary rules. The secondary rules, including the rule of recognition, rule of change, and rule of adjudication, are crucial for the proper functioning and coherence of the legal system. In more primitive societies, the absence of fully developed secondary rules may limit the legal system's effectiveness in addressing complex legal issues and resolving disputes.
d. Joseph Raz
In legal systems, Joseph Raz distinguishes between two types of structures: the genetic structure and the operative structure. These structures analyze different aspects of the legal system and provide insights into its functioning.
Operative Structure of Legal System: The operative structure, on the other hand, deals with the practical application and effect of the law. It focuses on how laws operate, the consequences for non-compliance, and the regulatory mechanisms in place. Key aspects within the operative structure include:
Effect of Law: The operative structure examines the impact and consequences of the law on individuals, society, and the legal system itself. It considers how laws influence behavior and shape social and legal norms.
Punitive and Regulative Law: This aspect looks at the punitive aspects of the legal system, such as penalties and sanctions for non-compliance, as well as the regulative functions that ensure compliance and maintain order.
The operative structure of the legal system is particularly relevant to the concept of momentary legal systems. Momentary legal systems focus on the current state of the law and its immediate impact on individuals and society.
Genetic Structure of Legal System: The genetic structure focuses on the sources of law and analyzes various elements related to its creation, function, authority, and modification or repeal. It examines the origins of laws and how they come into existence. Key considerations within the genetic structure include:
Creating Date: The genetic structure looks at when laws are created or enacted, considering historical context and the time of their establishment.
Function and Authority: It examines the purposes and objectives of laws and the authority responsible for their creation and enforcement, such as constitutional or other legal authorities.
Nature of Authority: This aspect considers the legitimacy and justifiability of the authority behind the laws, including whether they are based on constitutional principles or other legal justifications.
Modification and Repeal: The genetic structure also analyzes how laws can be modified or repealed, including the existence of legal provisions or other factors that facilitate these changes. ( खारेजी बचाउ ) non momentary – permanent
The genetic structure of the legal system is particularly relevant to the concept of non-momentary legal systems. Non-momentary legal systems focus on the historical and enduring aspects of the law, including its source thesis and the established genetic structures that resist change.Overall, these two structures provide distinct perspectives on the legal system, with the genetic structure emphasizing the source and non-momentary aspects of law, and the operative structure focusing on the practical application and momentary effects of the law.
Joseph Raz, in his book 'The Concept of a Legal System' has extensively analyzed the structure of a legal system." The very crux of his ideas is referred here. The structure of a legal system can be asserted as:
1. Every legal system contains D-laws i.e. duty imposing laws.
2. Every legal system contains S-laws i.e. sanction stipulating laws.
3. Punitive relations are internal relations.
4. In every legal system there are internal punitive relations.
5. In every legal system there are PL laws i.e. power conferring laws.
6. In every legal system, there are PR laws i.e. power regulating laws.
7. In every legal system there are genetic relations between laws.
8. In every legal system there are regulative relations between laws.
9. In every legal system there are norms.
All the laws of a legal system which are not norms have internal relations to legal norms i.e. they affect the existence or application of legal norms. Moreover, their sole legal relevance is in the way in which they affect the existence and application of legal norms.
According to every momentary legal system every act situation, which is not prohibited by a specific law of the system is permitted.
According to every momentary legal system no future act can create laws or affect the application of laws unless there is, in that momentary system, a law conferring upon it that power.
4. The Criteria of Content
The criteria of content, as presented by Joseph Raz, is the final criterion to define a legal system. The content refers to the substantive elements that make up the rules, norms, and behaviors within the legal system. It complements the criteria of structure and is essential for the legal system to fulfill its purpose effectively:
Substance of the Legal System: The content of the legal system encompasses the actual rules, norms, and behavioral patterns of individuals operating within the legal framework. It constitutes the subject matter of the legal system and gives it substance and meaning.
Fulfilling the Structure: The criteria of content complements the criteria of structure, as the two are interconnected. While the structure provides the framework and rules for the legal system's functioning, the content fills in the specific rules and norms that give life to the system.
Objectives of the Legal System: The content of a legal system is closely tied to its objectives. It addresses the purpose and goals that the legal system seeks to achieve. Common contents of a legal system include justice, stability, order, and the pursuit of societal objectives.
Basis for Content: The content of a legal system is derived from various sources, such as state norms, societal requirements, education, and the overall objectives of the state. It reflects the values and principles of the society it governs.
Constant and Variable Content: Content can be categorized as constant and variable. Constant content refers to fundamental principles that remain relatively stable over time, providing the foundation for the legal system. Variable content, on the other hand, may change in response to evolving social, political, or cultural contexts.
In summary, the criteria of content focuses on the substance of the legal system, including its rules, norms, and behaviors. It helps fulfill the structure of the legal system by providing specific content and addressing the objectives and values that the legal system seeks to promote. The content is derived from various sources and may encompass both constant principles and variable elements that adapt to changing circumstances. Together, the criteria of structure and content help define and characterize a legal system and its role within society.
In summary, constant and variable contents play crucial roles in shaping a legal system. Constant content represents enduring principles and values, such as the rule of law and human rights, while variable content reflects the legal system's ability to adapt to changing circumstances and societal developments. Legal systems must strike a balance between upholding core principles and remaining flexible enough to address contemporary challenges and societal changes.
C. Some of the important Nepali cases
1) Vishnu Lama v. District Administration Office Kathmandu (N.K.P. 2072, issue 8, D .No. 9451)
(Joesph raz on problem of efficacy gave a criteria that “ new replaces the old one . = criteria of efficacy )
- The issue of creating a new constitution is not something that will happen in someone's mind.
- General and contemporary changes will be addressed through constitutional amendments, so there is no need to write a constitution in such cases.
- A new constitution is written only in extreme situations where the country's governance system cannot be operated through the existing constitution and its amendment.
- Therefore, it can be assumed that every new constitution will bring fundamental differences in the provisions of the previous constitution including governance.
- Since the Constitution of Nepal, 2072 was written by the representatives of the sovereign people, which has been expected for a long time in the history of Nepal, it must have brought significant changes.
- It is natural that the new constitution will make separate constitutional arrangements from the current one, but it is not practical and possible to implement the latest constitutional arrangements by replacing the systems before the issuance of the constitution at once.
- As the constitution is the basic law, the constitution has enriched the relationship between the citizen and the state and the general guidance of legal system . The act of bringing life to life in the framework given by the constitution can only be possible through the laws made under it.
- For this, first of all, the formation and establishment of major state bodies in accordance with the constitution remains indispensable. Only then will it be possible to make new legal systems according to the constitution.
They showed the commitment of the 2063 constitution they accepted change ,
Issue of case : if defendant is to be awarded more than 1 year of imprisonment then it needs to be overlooked by the court rather than quasi judicial bodies.
2) Baburam Giri, the office of the Council of Ministers, N.K.P. 2066 Issue 3 No. No.8096
“नागरिकप्रति सरकारको अभिभावकीय दायित्व रहन्छ । यो दायित्व भित्र नागरिकको अस्तित्व रक्षाको अधिकारको स्थान सर्वोपरि रहन्छ । नेपालमा प्राचीनतम् कानूनी प्रणालीमा त यो दायित्व स्वीकारिएको थियो भने आजको विकसित कानूनी मान्यतामा यस सिद्धान्तलाई इन्कार गर्ने ठाउं छैन । राज्यद्वारा बेपत्ता बनाइएका हुन वा अरु कसैद्वारा वा स्वयम् नै बेपत्ता भएका नै किन नहुन यी सबैको स्थिति सार्वजनिक गर्ने कानूनी दायित्व सरकारको हो । यस दायित्वबाट राज्यले उन्मुक्ति प्राप्त गर्न सक्ने अवस्था नहुने”
Translation : The government has a parental responsibility towards citizens.”. While this obligation was accepted in the oldest legal system in Nepal, there is no place to deny this principle in today's developed legal recognition. It is the government's legal responsibility to publicize the status of all those who have been made missing by the state or disappeared by someone else or by themselves. There is no situation where the state can get immunity from this obligation.
3) Bharatmani Jangam Vs. President's Office (N.K.P. 2068, Issue 8, No. 8662)
The main characteristic of democracy is the rule of law that is accountable to the people.
In a given legal system , the promises made with the people must be fulfilled, otherwise the people have the right to demand an answer. It would be desirable to understand the presented writ petition as a process to search for the same accountability
4) Rajiv jung Shah Vs. office of prime minister, Order Date: 2074.8.13 - , case number 072 –wc -0020
Any legal system in the world has adopted the general defense as an important principle of criminal law. The right of chastity which is directly related to the life of a woman, is accepted by our legal system as a part of private defense.
5) Bharatmani Jangam Vs. Parliament Secretariat (N.K.P. 2057, Issue 9/10, No. 7030)
· “no country can remain separate from the influence of rapid scientific and technological advancements or the impact of globalization. As a result, many countries adopt compatible elements from different legal systems, sometimes disregarding those that do not fit.
· This process is described as hybridization or adopting the good aspects of various legal systems while ignoring the misfitting ones. This approach is said to be dominant in the current complex and competitive world, where countries strive for distinct identities and development
It emphasizes that in the context of globalization and being part of international organizations, no single ideology or legal system is considered absolute and without alternative options for any country. The idea is that countries should select and incorporate elements that align with their needs and goals while disregarding those that do not fit.”
[1] Oxford Learner’s Dictionaries
[2] Merriam-Webster. (n.d.). Legal. In Merriam-Webster.com dictionary. Retrieved [Date], from https://www.merriam-webster.com/dictionary/legal
[3] Amber Prasad Pant. Jurisprudential Study on some Fundamental Aspects of Legal System. Kathmandu: Pairavi Prakashan,2000.
[5] Lawrence M friedman – “the legal system a social science perspective “
[6] Roscoe Pound “theories of interest”
[7] "The Limits of Law" (Penguin Books, 1980).
[8] Dr Amber Pant Jurisprudential Study on some Fundamental Aspects of Legal System
[9] .R.Biswas, Biswas on Jurisprudence 1st ed. Kamal Law House Calcutta, 1998 p. 34
[10]R.W.M .Dias, Jurisprudence, 5th ed. Aditya Books, Pvt.Ltd., New Delhi, 1985, Pp 60-61
[11] Lecture on LLM Class in the topic "The Notion of Legal System" by Associate Professor Dr Bijaya Prasad Mishra on 2023.5.17 in Nepal Law Campus.
[12] Rene David and J.E. C. Brierley. Major Legal System's In the World Today, 2nd, ed. 1976,Stevens & Sons, London, p.10
[13] R. von Jhering, Law As a Means to an End, (I. Husic trans., Boston Book Co., Boston, 1913)
[14] Steven Vago, Law and Society 6th ed., Prentice Hall, New Jersey, 2000, p. 36
[15] Roger Cottrell. The Sociology of Law 2nd ed. Butter worth, London, 1990, pp.89-90
[16] Amber Pd.Pant, Jurisprudential Study on some Fundamental Aspects of Legal System. JUSTICE, Vol.1, Gyangun Research Institute, ed. Shesh Raj Siwakoti, Magh, 2047.
[17] M.J.Sethna, The Essentiasl of Ideal Legal system, 1st ed. University of Bombay, 1968, p.1
[18] Raj J, The Concept of Law, P14, 187.208
[19] Rewati raj tripathi “the Nepalese legal system “
[20] id
[21] The first three points and the first half of the fourth were explicitly recognized by Bentham; cf. his discussion of revolt, which is concerned with the change of legal systems: Fragment, pp. 45-6.
[22] The last two points are made by Hart: cf. CL, pp. 109-14.
[23] Joseph Raz “the identity of legal system “
[24] M. D. A. Freeman Lloyd's Introduction to Jurisprudence 7th ed. 2001 Sweet & Maxwell Ltd. London, p. 205
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