Sources of Law
Exam Snapshot
Sources of law are fundamental to jurisprudence and frequently appear in TU LLB entrance exams. Expect questions on the hierarchy of sources, specific constitutional articles, and definitions of key terms (e.g., grundnorm, precedent, custom). Focus on how these sources interact and their relative authority within the Nepali legal system.
Core Concept
Sources of Law are the origins from which legal rules derive their authority and binding force. They are the channels through which legal principles become valid law. Jurisprudence broadly categorizes them into formal and material sources.
- Formal Sources: These are the channels that give law its force and validity (e.g., the State or sovereign authority, the Constitution).
- Material Sources: These are the channels that give law its content and substance (e.g., legislation, precedent, custom).
Nepal Law Anchors
- Constitution of Nepal 2072 (Article 1): The Grundnorm and supreme law of the land.
- Legislation: Federal/Provincial Acts and Ordinances (Article 114).
- Precedent: Article 128(4) establishes that Supreme Court interpretations are binding.
- International Treaties: Article 279 governs the ratification and binding nature of treaties.
Confusable Terms
| Term | Description | Exam Tip |
|---|---|---|
| Grundnorm | The ultimate source of legal authority (e.g., Constitution). | Associated with Hans Kelsen. |
| Ratio Decidendi | The binding legal principle of a decision. | It is the 'reason for the decision'. |
| Obiter Dicta | Judicial remarks not essential to the decision. | Not legally binding. |
| Legislation | Written law enacted by Parliament. | Primary source in civil law systems. |
| Custom | Long-standing usage accepted as binding. | Subordinate to legislation. |
MCQ Traps
- Hierarchy: Remember the pyramid: Constitution > Legislation > Precedent > Custom.
- Custom: It is NOT absolute; it must be reasonable and consistent with statutory law.
- Treaties: Binding only after ratification (Article 279), not upon signing.
Example
If a community custom permits marriage at 14, but the Muluki Civil Code mandates 20, the Code prevails. Custom cannot override clear statutory law in Nepal.
Memory Hook
Think of the Hierarchy Pyramid: Constitution at the top (Art. 1), followed by Legislation (Acts), then Precedent (Art. 128), and finally Custom (if consistent).
Quick Revision
- Constitution: Supreme law (Art. 1).
- Legislation: Acts and Ordinances (Art. 114).
- Precedent: Binding if from the Supreme Court (Art. 128(4)).
- Custom: Valid if reasonable and not against the law.
- Treaties: Binding post-ratification (Art. 279).