Unit 1: Introduction of Legal Method
Syllabus coverage in this unit
1.1 Meaning and Definitions of Law · 1.2 Classification of Law · 1.3 Concept of Legal Method ·
1.4 Kinds of Legal Method · 1.5 Importance of Legal Method · 1.6 Approaches of Legal Method ·
1.7 Concept of Legal Maxim
1.1 Meaning and Definitions of Law
A. Ordinary meaning
In everyday speech the word “law” is used in at least three senses:
- Scientific law — a uniform statement about nature (e.g., the law of gravity). It describes what always happens; it cannot be broken.
- Moral/natural law — principles of right and wrong (e.g., “killing innocents is wrong”).
- Positive law (municipal law) — the body of rules created and enforced by the State. This is the lawyer’s law, and it is the subject of legal study.
The word itself reaches English through the Old Norse lag (“something laid down”) and is closely related to “lay.” A law, literally, is that which is laid down by a superior authority.
B. The problem of definition
No single definition of law satisfies everyone, because the definition a writer chooses already reflects his approach to law (see 1.6). A positivist defines law as command; a natural lawyer as justice; a sociologist as an instrument of social control. Keeping this in mind, we study the classic definitions critically.
C. Leading definitions of law
1. John Austin (command theory / analytical positivism)
“A law is a command which obliges a person or persons to a course of conduct.”
For Austin, every law is (i) a command of a determinate sovereign, (ii) imposing a duty, and (iii) backed by a sanction. Law is “the science of what is,” not “what ought to be” — the lawyer studies law as it is enacted, regardless of its morality.
Criticism: It cannot explain laws that confer rights without duties (contract, wills, marriage laws), customary law, international law, or laws limiting the law-maker itself (constitutions). As Prof. Hart showed in The Concept of Law (1961), a legal system is not a gunman’s writ large: it is a union of primary rules (duties) and secondary rules (rules about making, changing and adjudicating rules).
2. John Salmond
“Law is the body of principles recognised and applied by the State in the administration of justice.”
Salmond’s emphasis is on the courts: law is what the courts recognise and enforce. Criticism: it ignores the legislature as a source of law and reduces law to case-law.
3. T. E. Holland
“Law is a general rule of external human action enforced by a sovereign political authority.”
Holland calls jurisprudence “the formal science of positive law” — he is interested only in the form of law, not its content. Criticism: like Austin, “general rule” excludes special laws, and “sovereign” sits uneasily with modern constitutionalism.
4. Sir William Blackstone
Municipal law is “a rule of civil conduct prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong.”
5. Frederick Pollock (refining Austin)
“Law is a general rule of external human action enforced by the determinate authority.”
6. Roscoe Pound (sociological approach)
“Law is the body of principles, standards and rules which the courts apply in the administration of justice” — more generally, law is social engineering: the balancing of competing interests in society.
7. Historical school — F. K. von Savigny
Law is not made arbitrarily; it grows out of the Volksgeist — the spirit/common consciousness of the people. Custom, not command, is the primary form of law.
8. H. L. A. Hart (modern positivism)
Law is the union of primary rules (imposing duties) and secondary rules (rules of recognition, change and adjudication). Hart’s work remains the modern starting point of positivist theory.
D. Working definition for a law student
Law may be defined as the body of rules of conduct, originating from recognised sources (constitution, legislation, precedent and custom), prescribed and enforced by the authority of the State, and applied by its courts in the administration of justice.
E. Essential elements of law
- A body of rules (not isolated commands)
- Generality — law addresses classes of persons and acts, not individuals alone
- External human action — law regulates conduct, not private thoughts
- Recognised sources — constitution, statute, precedent, custom
- State authority — enacted or recognised by the State
- Enforcement — through courts and sanctions
F. Law in the Nepali context
The supreme source of law in Nepal is the Constitution of Nepal, 2072 (2015). The main statutory framework is found in the National Civil (Muluki) Code, 2074 (2017), the National Criminal (Muluki) Code, 2074, the National Civil Procedure Code, 2074 and the National Criminal Procedure Code, 2074, together with hundreds of special Acts (e.g., Evidence Act 2031, Local Government Operation Act 2074). Article 1 of the Constitution declares the Constitution the fundamental law of Nepal, and any law inconsistent with it is void to the extent of the inconsistency.
Key point for exams: Always connect the theoretical definition to Nepal — examiners reward the ability to show where these ideas appear in the Nepali legal order.
1.2 Classification of Law
Classification simply means grouping laws according to some common feature. Different criteria produce different classifications. Learn each pair with a Nepali example.
A. By the authority that creates it — Municipal vs International law
| Municipal (national) law | International law | |
|---|---|---|
| Source | Sovereign legislature of a State | Treaties, custom, general principles, UN Charter |
| Enforced by | National courts | No world court with compulsory jurisdiction; enforcement through consent, reciprocity, UN organs |
| Subjects | Individuals and entities | Primarily States and international organisations |
| Example | Muluki Civil Code 2074 | Vienna Convention on the Law of Treaties 1969; the SAARC Charter |
B. By the interest protected — Public vs Private law
- Public law regulates the relationship between the State and individuals. Branches: constitutional law, administrative law, criminal law, taxation law. Example: the Constitution of Nepal; the Muluki Criminal Code (the State prosecutes crimes as offences against society).
- Private law regulates relationships between private persons. Branches: law of contract, tort, property, family law, succession. Example: the contract provisions of the Muluki Civil Code 2074; Partition Act 2020.
Nepali note: the relaxed locus standi rules of public-interest litigation under the writ jurisdiction (Art. 46 read with Arts. 133(2) and 144(1)) show how public law operates differently from private litigation.
C. By function — Substantive vs Procedural law
- Substantive law defines rights, duties and offences — what the law is. Example: Muluki Civil Code 2074 (defines contract, ownership, marriage); Muluki Criminal Code 2074 (defines murder, theft and their punishments).
- Procedural law prescribes the method of enforcing those rights — how the law is applied. Example: Muluki Civil Procedure Code 2074, Muluki Criminal Procedure Code 2074, Evidence Act 2031, Court Management Act 2073.
Remember: procedural law is the machinery; substantive law is the product of the machine.
D. By the nature of the wrong — Civil vs Criminal law
| Civil law | Criminal law |
|---|---|
| Wrong against a private individual | Wrong against the State/society |
| Suit filed by the injured party | Case filed by the State (through police/prosecution, attorney) |
| Remedy: compensation, restitution, injunction | Remedy: punishment — imprisonment, fine |
| Standard of proof: balance of probability | Standard: proof beyond reasonable doubt |
| Example: breach of contract suit under the Civil Code | Example: homicide prosecuted under the Criminal Code |
E. By generality — General vs Special law
- General law applies to all persons and the whole territory (e.g., the Civil Code).
- Special law applies to particular persons, subjects or areas and prevails over general law in its own field (lex specialis derogat legi generali). Nepali examples: Banking Offences and Punishment Act 2064, Labour Act 2074, Children’s Act 2075, Consumer Protection Act 2075, laws governing provincial or local matters under Schedules 5–9 of the Constitution.
F. By hierarchy — Constitutional (fundamental) vs Ordinary law
- The Constitution is the fundamental law: ordinary statutes must conform to it (Constitution of Nepal, Art. 1; judicial review under Art. 133(1), with constitutional questions heard by the Constitutional Bench under Art. 137).
- Ordinary legislation is made under constitutional authority and within its limits.
G. By form — Written vs Unwritten, and Codified vs Case law
- Nepal has a largely codified (civil-law style) system, historically through the Muluki Ain (first promulgated 1910 BS / 1853 AD and re-enacted 2020 BS; now replaced by the Codes of 2074).
- Yet Nepali courts also rely on precedent: the Constitution (Art. 128(4)) makes Supreme Court interpretations and legal principles binding on all. Case law is thus a formal source in Nepal — an example of a mixed tradition.
H. By subject-matter
Constitutional, administrative, criminal, civil (contract, tort, property, family, succession), commercial/company, labour, tax, environmental, international, etc.
Memory aid: MIP-SCUGS — Municipal/International, Interest (public/private), Process (substantive/procedural), Subject (civil/criminal), Coverage (general/special), Unwritten/written, Grade (fundamental/ordinary), Specialised subjects.
1.3 Concept of Legal Method
A. Meaning
A method is a systematic way of doing something. The legal method is the disciplined way lawyers and law students read, analyse, interpret and apply the law to facts — and communicate the result. Where “law” is the subject-matter, legal method is the tool-box for handling that subject-matter.
In essence, legal method answers four practical questions:
- What is the law? (identifying the relevant rule — statute, precedent, custom)
- What does it mean? (interpretation and construction)
- How does it apply to these facts? (reasoning by analogy and deduction)
- How do I communicate the conclusion? (legal writing and argument)
B. Why a separate subject?
First-year students come from +2, where subjects are studied by reading and remembering. Legal study is different: a lawyer is never paid to recite Section 1 of an Act, but to apply law to a client’s problem. Legal Method is therefore the foundation course of the B.A.LL.B. — it trains:
- careful reading of statutes and judgments,
- disciplined reasoning (deduction, induction, analogy),
- research to find law,
- writing in the special register of law,
- problem-solving through the IRAC method.
C. The IRAC method — the working formula of a lawyer
| Step | Question it answers |
|---|---|
| I — Issue | What legal question must be answered? |
| R — Rule | What rule(s) of law govern this issue? |
| A — Application | How does the rule apply to the facts of this case? |
| C — Conclusion | What is the answer to the issue? |
Illustration: A shopkeeper sells adulterated food (facts). Issue: what liability? Rule: Consumer Protection Act 2075 and Food Act 2023 provisions on adulteration. Application: the acts of the shopkeeper fall within the definition of the offence. Conclusion: he is liable to the prescribed fine/compensation.
D. Legal method distinguished from related ideas
- Law = the body of rules (the what).
- Jurisprudence = the philosophy of law (the why).
- Legal method = the technique of using law (the how).
1.4 Kinds of Legal Method
Legal method is not one technique but a family of them. The syllabus emphasises the following kinds:
A. Doctrinal (black-letter) method
Research and study within the legal system: analysing statutes, precedents and legal principles as they stand, using legal sources alone, logical reasoning, and library/online legal databases. It answers: what is the law on this point? It is the traditional, authoritative style of law teaching and judgment-writing.
B. Non-doctrinal (socio-legal) method
Study of law in its social context: how law actually works, using tools of the social sciences — interviews, surveys, field observation, statistics. It answers: what does the law do to society, and society to the law? Example: studying whether the Domestic Violence (Offence and Punishment) Act 2066 has reduced domestic violence in practice.
C. Case-law method
Learning law through the study of decided cases — the dominant method in common-law teaching (pioneered at Harvard by Dean Langdell). Each case is dissected into facts → issue → decision → reasoning (ratio decidendi) → obiter dicta.
D. Statutory (analytical) method
Reading and interpreting legislation section by section — essential in a codified system like Nepal’s. The tools are the rules of interpretation (literal, golden, mischief, purposive — studied in detail in Interpretation of Law, Semester 6).
E. Socratic / problem method
The teacher poses a problem and questions students step by step, exposing contradictions and forcing precise reasoning. The curriculum of TU FoL expressly adopts the Socratic and participatory methods.
F. Comparative method
Studying a legal institution by comparing it across legal systems (e.g., comparing Nepali constitutional remedies under Art. 46/133 with Indian Art. 32/226 writ jurisdiction).
1.5 Importance of Legal Method
- Foundation of legal education — it converts a student into a person who thinks like a lawyer.
- Skill of statutory reading — modern Nepal is governed by codes; every subject (criminal, contract, procedure) depends on reading sections precisely.
- Skill of case analysis — Nepali precedent under Art. 128(4) binds all courts; a practitioner must extract the ratio of Supreme Court decisions.
- Logical reasoning — training in deduction, induction and detection of fallacies protects against unsound argument (see Unit 2).
- Legal research and writing — petitions, deeds, opinions and judgments are products of method, not inspiration.
- Professional ethics — method imposes discipline: verify sources, cite honestly, argue both sides before concluding.
- Access to justice — a methodical lawyer serves clients efficiently and affordably; sloppy method harms clients and the court’s time.
- Bridge to every later subject — Jurisprudence, Constitutional Law, Drafting, Moot Courts and Clinical Law all assume the habits built here.
1.6 Approaches of Legal Method
“Approach” means the underlying philosophy or standpoint from which one studies law. The main approaches (each developed fully in Jurisprudence I–II) are:
1. Natural law approach
Law derives validity from morality, reason and justice — an unjust “law” is no law at all (lex injusta non est lex). Roots: Greek philosophy (Plato, Aristotle, Stoics), Roman law, Aquinas, modern human-rights theory. Modern relevance: the Preamble and Part 3 (fundamental rights) of the Constitution of Nepal; the “principles of justice” courts invoke in constitutional interpretation.
2. Analytical / positivist approach
Law is studied as it is — commands/rules from recognised sources — separated from morality (Austin, Bentham, Holland, Kelsen, Hart). Its virtues are clarity, certainty and scientific method; its danger is that it offers no standard to criticise wicked laws. Nepali relevance: the entire codified structure (Codes of 2074) is positivist in style; Kelsen’s Grundnorm theory famously influenced the legitimacy debate after the political changes of 2007 BS.
3. Historical approach
Law is the product of a nation’s historical growth and popular consciousness (Savigny, Maine). Nepali relevance: the Muluki Ain of 1910 BS grew from custom; the present Civil Code consciously preserves Nepali family-law traditions.
4. Sociological approach
Law is studied as an instrument of social control and social engineering (Ehrlich, Pound, Durkheim — see also Sociology, Unit 3). The question is law’s effect: does it actually deliver justice? Nepali relevance: PIL jurisdiction of the Supreme Court; public-interest doctrines in environmental cases.
5. Realist approach
Law is what courts actually do, not what books say (American and Scandinavian realists — Holmes, Llewellyn, Frank). “The prophecies of what the courts will do in fact… are what I mean by law” (Holmes).
6. Critical approaches
Critical Legal Studies, feminist jurisprudence, critical race theory: law is neither neutral nor objective but a vehicle of power that must be unmasked (defended at length in later semesters; see also Gender and Inclusive Justice, Semester 8).
How to use this in the exam: do not merely list approaches — state approach, chief exponent, core idea, one merit, one defect, and one Nepali illustration.
1.7 Concept of Legal Maxim
A. Meaning
A legal maxim is a short, established principle or rule of law, usually expressed in Latin, that expresses the distilled experience of lawyers and courts. A maxim is not itself enacted law; it is a guiding principle that courts invoke to interpret law and decide cases — a shorthand of legal reasoning.
B. Functions of maxims
- Express settled legal principles in memorable form.
- Guide interpretation where the statute is silent or ambiguous.
- Supply the reasoning-link in judgments.
- Educate: maxims train students in the logic of law.
C. Important maxims every first-year student must know
| Maxim | Meaning | Use / Nepali illustration |
|---|---|---|
| Ignorantia juris non excusat | Ignorance of the law excuses no one | Presumption that every person knows the law; no defence in criminal cases |
| Ubi jus, ibi remedium | Where there is a right, there is a remedy | Foundation of writ jurisdiction and tort liability |
| Actus non facit reum nisi mens sit rea | An act does not make one guilty unless the mind is guilty | Mental element in crime; Muluki Criminal Code requires intent/knowledge for most offences |
| Res judicata | A matter already judged | Bars re-litigation of the same cause; recognised in Nepali civil procedure |
| Nemo judex in causa sua | No one may be judge in his own cause | Rule against bias; ground for recusal of judges |
| Audi alteram partem | Hear the other side | Right to be heard — natural justice; also a constitutional guarantee of fair procedure |
| Salus populi suprema lex | The welfare of the people is the supreme law | Justifies state regulation and public-interest restriction of rights |
| Pacta sunt servanda | Agreements must be kept | Foundation of contractual obligation and treaty obligation |
| Volenti non fit injuria | No injury to a willing person | Consent as a defence in tort |
| Qui facit per alium facit per se | He who acts through another acts himself | Master’s liability for acts of servants; agency |
| Expressio unius est exclusio alterius | Express mention of one thing excludes others | Rule of statutory interpretation |
| Nemo dat quod non habet | No one gives what he does not have | Protection of title in property transactions |
| Nullum crimen, nulla poena sine lege | No crime, no punishment without law | Art. 20(4) of the Constitution: no punishment except by law; prohibits retroactive crimes |
| Dura lex, sed lex | The law is harsh, but it is the law | Courts must apply clear law even if the result is hard |
D. Caution
A maxim is a starting point, not a conclusion. Courts may refuse a maxim where statute or justice requires otherwise; opposing maxims often exist on the same subject. Cite a maxim as support for reasoning, never as a substitute for it.
Exam Focus — what examiners typically ask from Unit 1
- Long questions: “Define law. Critically examine the definitions given by Austin, Salmond and Holland.” / “Explain the classification of law with examples from Nepali law.” / “What is legal method? Explain its kinds and importance.” / “Discuss the approaches to the study of law.”
- Short questions: essential elements of law; substantive vs procedural law; public vs private law; IRAC; doctrinal vs non-doctrinal method; natural law vs positivism; meaning and examples of legal maxims.
- Trick areas: students often write Austin’s definition without criticism — always add evaluation. Always attach a Nepali example to every classification pair.
Model Questions
Short-answer questions
- “Law is the command of the sovereign.” — Austin. Explain and criticise briefly.
- Distinguish substantive law from procedural law, with two Nepali examples of each.
- What is IRAC? Illustrate it with a simple consumer-dispute problem.
- Write short notes on any two legal maxims with their relevance in Nepali law.
- How does doctrinal legal method differ from the non-doctrinal (socio-legal) method?
Long-answer questions
- What is law? Critically examine the classical definitions of law and formulate your own working definition with reference to the Nepali legal system.
- Explain the various classifications of law. Support your answer with examples from the Constitution of Nepal 2072 and the Codes of 2074.
- “Legal method is the foundation of legal education.” Discuss with reference to the kinds and importance of legal method.
- Explain the major approaches to legal method. Which approach, in your view, best explains the role of the Supreme Court of Nepal? Give reasons.
📚 Get the complete notes: Download the full Legal Method PDF (all units) — Law Info Nepal Original Notes Series.