Introduction: Sources of Law and Precedent

Sources of law refer to the origins from which legal rules derive their authority, validity, and substance. In a legal context, they are the “raw materials” used by judges to create the rules applied in court decisions.

1. Classification of Sources

Legal scholars have categorized sources of law into several key types:

• Primary (Binding) Sources: These are mandatory laws that a court must follow, including the Constitution (the fundamental law of the land), Legislation (laws passed by the sovereign body), Customs, and Precedents.
  
• Secondary (Persuasive) Sources: These explain or summarize the law and are used for guidance when binding sources are unavailable. Examples include juristic writings, professional opinions, principles of equity, justice, and good conscience, and foreign judgments.
  
• Salmond’s Classification: John Salmond divided sources into Material sources (which provide the content of the law) and Formal sources (through which the state manifests its will, such as statutes and precedents).
  

2. Legislation as a Primary Source

Legislation refers to rules passed by the government’s legislative branch.

• Supreme Legislation: Laws enacted by a sovereign authority that cannot be overturned by another body.
  
• Subordinate (Delegated) Legislation: Laws passed by bodies to whom the sovereign has delegated power, such as executive regulations, municipal bye-laws, or rules made by autonomous bodies like universities.
  

3. Custom as a Living Source of Law

In Nepal, custom (Riti-Thiti) is a foundational source of law, reflecting the traditions of its 142 ethnic groups.

• Validity: For a custom to be legally valid, it must be immemorial (existing for a long time), reasonable, continuous, peaceable, and certain.
  
• Legal Force: Customs are given the force of law because they embody national conscience, meet society’s expectations of continuity, and serve the interests of the community.
  

4. Precedent and its Importance

A precedent is a judicial decision made by a superior court (the Supreme Court in Nepal) that establishes a rule of law binding on all subordinate courts.

• Stare Decisis: This principle means “let the decision stand,” ensuring consistency in the legal system.
  
• Core Elements:

• Ratio Decidendi: The “reason for the decision,” which is the only binding part of a judgment.
  
• Obiter Dicta: “Things said by the way,” which are persuasive but not legally binding.
  
• Landmark Nepali Case: In Sunil Babu Pant v. Nepal Government, the court established the Ratio that the right to identity is a fundamental right, mandating the state to recognize the “Third Gender”.
  

5. International Law in Nepal

International conventions and treaties hold a superior status in Nepal. Under Section 9 of the Nepal Treaty Act, 1990, if a treaty provision conflicts with domestic law, the treaty prevails. Once ratified, these treaties are enforced as if they were national legislation.