Jurisprudence

Meaning: The term "Jurisprudence" is derived from the Latin words juris (law) and prudentia (knowledge or prudence), meaning "knowledge of law" or "the science of law." In its broad sense, jurisprudence is the systematic and scientific study of law — its nature, sources, principles, concepts and functions. In its narrow sense, it refers to the body of legal theory or the philosophy of law that examines what law is and what law ought to be. It is not the study of the contents of any particular statute, but of law as a social institution. Jurisprudence is thus a theoretical, analytical and normative discipline that provides the foundation for understanding and applying law.

Major Schools of Jurisprudence:

1. Analytical (Positivist) School — Founded by John Austin, developed by Jeremy Bentham, Thomas Holland and John Salmond. It studies law "as it is" (lex lata), not "as it ought to be" (lex ferenda). Austin defined law as the command of a sovereign backed by sanction. It focuses on the analysis of legal concepts, sources and the structure of a legal system. Its chief merit is precision and certainty; its weakness is indifference to the moral quality of law.

2. Natural Law School — Associated with Cicero, St. Thomas Aquinas, Hugo Grotius and, in modern times, Lon Fuller and John Finnis. It holds that law derives from a higher, universal moral order — reason and nature. An unjust law is no law (lex injusta non est lex). It emphasises the moral foundation and ethical purpose of law. It revived after the Second World War through the Nuremberg trials, where Nazi "laws" were held void for violating a higher law.

3. Historical School — Led by Friedrich Carl von Savigny and Sir Henry Maine. It views law not as a command but as an organic growth of the people's customs, traditions and national spirit (Volksgeist). Law evolves with society and cannot be made arbitrarily by a sovereign. Maine's famous contribution is the movement "from status to contract."

4. Sociological School — Represented by Roscoe Pound, Eugen Ehrlich, Émile Durkheim and Rudolf von Ihering. It treats law as a social instrument for balancing competing interests and meeting social needs. Pound's theory of "social engineering" and "jural postulates" is central to this school. Ehrlich distinguished "living law" from the law in books.

5. Realist School — Divided into American Realism (Oliver Wendell Holmes Jr., Karl Llewellyn, Jerome Frank) and Scandinavian Realism (Axel Hägerström, Karl Olivecrona, Alf Ross). It holds that law is what courts actually decide; the law in action, not the law in books, is the real law. Holmes famously said, "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." It stresses the psychological and practical factors behind judicial decisions.

6. Marxist (Socialist) School — Based on Karl Marx and Friedrich Engels. It treats law as a superstructure reflecting the economic interests of the ruling class; law will ultimately wither away in a classless communist society. It influenced the legal systems of the former USSR and other socialist states.

7. Comparative School — Studies law by comparing different legal systems (Civil law, Common law, etc.) to understand their similarities, differences and evolution, and to promote legal reform and unification.

8. Feminist School — Associated with Catherine MacKinnon and others. It critiques law as patriarchal and seeks to expose and correct gender bias in legal rules and institutions. It has contributed to reforms in laws relating to rape, domestic violence, workplace harassment and property rights.

Conclusion: Each school offers a distinct perspective — the analytical school explains the form of law, the natural school its morality, the historical school its growth, the sociological school its social function, and the realist school its actual operation. Together they provide a complete understanding of law as a dynamic social phenomenon.

Meaning of property

Property (सम्पत्ति) can be understood in two senses.

• Wide sense. Property means everything that a person owns or has a right to, including corporeal things (land, house, money, goods) and incorporeal rights (debts, shares, patents, copyrights, goodwill). Salmond in this sense treats all of a person's legal rights of a proprietary nature as his property.
• Narrow sense. Property means only the right of ownership over a tangible thing, especially land and chattels.

Property is classified as movable and immovable, corporeal and incorporeal, and public and private. Under the Muluki Civil Code, 2074, property includes land, house, movable goods, money and other rights of economic value.

Modes of acquisition

Acquisition of ownership can be original or derivative.

1. Original modes (the right arises without transfer from a previous owner)

• Occupation of ownerless things (res nullius), such as wild fish or abandoned goods.
• Creation or production, such as a book written or a house built by the owner.
• Accession, where a thing grows out of or joins one already owned, such as the produce of land or the young of animals.
• Discovery of treasure or lost goods, subject to the finder's duty to report and the rules of law.
• Prescription or adverse possession, where long, open and continuous possession in accordance with law gives title.

2. Derivative modes (the right is received from a previous owner)

• Sale, gift (dan) and exchange by contract or agreement.
• Succession and inheritance (intestate or by will, where permitted), as in the rules of partition (ansabanda).
• Transfer by operation of law, such as acquisition by the state under the Land Acquisition Act, forfeiture, execution of a court decree, or auction.
• Mortgage and lease, which give limited proprietary rights.

Conclusion. The law of property regulates both what may be owned and how ownership may be gained, protecting lawful acquisition and denying title to acquisitions by unlawful means.

Definition of ownership

Ownership is the most complete right a person can hold over a thing. It combines the rights to possess, use, enjoy, transfer and even destroy the thing, and to exclude all others from it, subject to the limits set by law.

• Salmond: ownership is the relation between a person and a thing that confers the fullest possible rights of enjoyment and disposal.
• Holland: ownership is the plenary control of a person over a thing.

Under the Muluki Civil Code, 2074, an owner may use, enjoy and dispose of property as the law allows.

Essentials: it is a right in rem (available against everyone), it is residuary, it has no fixed duration, and it may pass to heirs.

Relationship between ownership and possession

1. Possession often leads to ownership. First possession of ownerless things and long possession (prescription) can create ownership.
2. Possession is evidence of ownership. A person in possession is presumed to be the owner until the contrary is proved.
3. They usually coincide. An owner who holds his own thing has both ownership and possession.
4. Both are protected by law. An owner may recover his thing, and a possessor is protected against unlawful dispossession even by the owner, who must use legal process.
5. They can be separated. An owner may give possession to a tenant, mortgagee or bailee while keeping ownership.

Differences

Conclusion. Ownership is the right, possession is the fact. They are closely related, but one can exist without the other.

Rights and Duties are Two Sides of the Same Coin

Introduction

Rights and duties are the two inseparable aspects of the same social relationship. A right is a claim or freedom that an individual enjoys, while a duty is an obligation that he owes to others and to the state. Just as a coin cannot exist with only one side, rights cannot exist without corresponding duties. The statement "rights and duties are two sides of the same coin" expresses this essential interdependence.

Meaning of Rights and Duties

• Rights: Those claims, powers, privileges and immunities which are recognised and protected by law or society. For example, the right to life, the right to education, the right to vote.
• Duties: Those obligations which an individual is bound to perform towards others, society and the state. For example, the duty to pay taxes, to obey the law, to respect the rights of others.

Rights and Duties as Two Sides of the Same Coin

1. Correlative relationship: Every right of one person implies a duty on the part of others. My right to life means others have a duty not to harm me. My right to reputation means others have a duty not to defame me. Thus rights and duties are correlative.

2. Rights create duties: When a person enjoys a right, he also becomes bound by duties. The right to vote carries the duty to vote wisely and honestly. The right to property carries the duty to use it for social good and to pay taxes.

3. Duties protect rights: Rights can be enjoyed only when duties are performed. If everyone performs the duty of respecting others' rights, the rights of all are automatically secured. Violation of duty is violation of someone's right.

4. No absolute rights: There is no such thing as an absolute or unlimited right. Every right is limited by the equal rights of others. This limitation is nothing but a duty.

5. Social interest: Man is a social being. He cannot live in isolation. He enjoys rights because he lives in society, and he must discharge duties to keep society intact. Hence rights and duties go together.

6. Legal recognition: Law recognises both rights and duties. The same statute that confers a right imposes a duty. For example, the Constitution of Nepal guarantees fundamental rights and also prescribes fundamental duties.

Examples

• A citizen has the right to education; he also has the duty to send his children to school.
• A citizen has the right to freedom of expression; he also has the duty not to defame others.
• A citizen has the right to vote; he also has the duty to cast his vote responsibly.

Conclusion

Rights and duties are not opposed to each other; they are complementary. A right without a duty is a privilege, and a duty without a right is slavery. The healthy development of the individual and the state depends upon the balanced enjoyment of rights and performance of duties. Hence it is rightly said that rights and duties are two sides of the same coin.

Differences between Legal Person and Natural Person

Introduction. In jurisprudence, "person" does not mean merely a human being; it means any entity that the law recognises as capable of rights and duties. On this basis persons are of two kinds — natural persons and legal persons (also called artificial or juristic persons).

Meaning.

• Natural person: A human being of any age, sex or capacity, who is recognised by law as a person simply because he or she is born a human being. Legal personality begins at birth (in some systems, from conception for certain purposes) and ends at death. Example: Ram, Sita, a newly born baby, a person of unsound mind — all are natural persons.

• Legal person: An entity which is not a human being but which the law treats as a person, i.e. it can hold property, sue and be sued, and incur rights and liabilities in its own name. It is a creation of law — a "legal fiction". Examples: a registered company, a corporation, a university, a municipality, a temple or deity (as in Nepali law), the State, a partnership firm for some purposes.

Points of difference

Conclusion. Thus the essential distinction is that a natural person is a human being recognised by law, whereas a legal person is a thing or group of persons treated by law as a person. The natural person exists in fact; the legal person exists only in the contemplation of law. Yet both are "persons" in the legal sense, because both can possess rights and be subject to duties.

Law as an Instrument of Social Change

Yes, I agree that law is an important instrument of social change. Law is not merely a body of static rules; it is a dynamic tool through which society consciously reshapes its own norms, institutions and behaviour. Social change means alteration in the social structure, values and relationships of a society, and law is one of the most effective means of bringing such alteration about in an orderly manner.

Law as an instrument of social change:

1. Law abolishes outdated practices. Law can declare socially entrenched but unjust customs illegal. The abolition of sati, slavery and untouchability shows how legal prohibition gradually destroys harmful traditions. In Nepal, the Muluki Ain (1854) and later the Muluki Civil Code (1963) reformed many discriminatory customs, and the Caste-based Discrimination and Untouchability (Offence and Punishment) Act, 2011 criminalised caste discrimination.

2. Law creates new rights and entitlements. Legislation can grant rights that society had earlier denied. The abolition of slavery in the United States (13th Amendment), the granting of voting rights to women, and Nepal's Constitution of 2015 guaranteeing fundamental rights to women, Dalits, Janajatis and persons with disabilities are examples of law creating a new social order.

3. Law protects the weak and redistributes power. Labour laws, minimum wage laws, land reform and social security schemes reduce economic and social inequality. Nepal's Land Reform Act, 1964 and the Labour Act, 2017 are instances where law intervened to change the existing power structure.

4. Law provides a peaceful mechanism for change. Through the legislature, judiciary and executive, law allows change to occur without violence. Judicial activism — for example, the Supreme Court of Nepal's decisions on the right to food, right to clean environment and rights of sexual minorities — has pushed social change through legal reasoning.

5. Law educates and shapes public opinion. Even when a law is not fully enforced, it declares a society's ideal and gradually moulds attitudes. Anti-dowry laws and laws against domestic violence have changed public attitudes over time.

6. Law institutionalises change. Once a reform is accepted, law gives it permanence through institutions, procedures and remedies, preventing reversal.

Limitations:

Law alone cannot change society. It works best when supported by education, economic development and social awareness. A law opposed by strong social forces may remain a dead letter. Law is thus a catalyst, not the sole cause, of social change. It both follows and leads social change — reflecting existing values while also shaping new ones.

Conclusion:

Law is undoubtedly an important instrument of social change. It abolishes unjust customs, creates new rights, protects the vulnerable, provides peaceful means of reform and educates society. However, its effectiveness depends on social acceptance and support. Law and society must move together for meaningful and lasting change.