Prem Raj Silwal

Jurisprudence is a vague philosophy but the guiding principle of law. Moreover, it is an eye of the law, method of law, skill of law and concept of law.
According to Professor Dias (1921-2009), "Jurisprudence is a thought about thought." It is a school of law. Its development is directly associated with human civilization, social stability and legal development.

Science of Logic
Philosopher Gray (1828-1902) states, "The real relation of jurisprudence to law depends not upon what law treats, but how the law treats." It is a science but science of logic relating to the legal world.
Mainly, jurisprudence consists of six types of the school of thought and principle. Natural school of thought is the thought, which comes from ancient human civilization.
The founders of this school comprise of reputed philosophers including Plato (427-347 BC), Cicero (106-43 BC), Aristotle (385-322 BC), Thomas Hobbes (1588-1679), Immunes Kant (1724-1804), Lon Fuller (1902-1978) and many more. First, the school is the concept of right reason, divine law, guided by nature, which is superior and universal. Similarly, the laws of humanity, equality, unity, ethics, values, justice and so on also fall in this category.
German philosopher K.V. Savegny and British Jurist Sir Hennery Maine were the leading founders of the historical school of thought. The historical school believes, "law is not made by a human, but found in the human society." Society is essential and is a major basic component. So, the law is not made it is found in different sector or area of the society.
British Jurist Jeremy Bentham and John Austin were the major philosophers of Analytical school. Austin, who was the student of Bentham, defined very clearly about this school of philosophy. He stated, "Law is the command of the sovereign, which is implied by sanction." He focused mainly on command, sovereign and sanction in laws. Without these three requisites, the law is not a law, according to Austin.
American Jurist justice Holmes pioneered on the Realist school of thought. Holmes said, "Law is what judge or court says." He focused on the decision of court and judges. Since all disputes are solved by the court, the law is the decision of the court.

Socialist School
Another school of thought is Marxist or Socialist School. The founder of this school was Karl Marx, who was born in Germany in 1818 and died in 1883. He focused on lawless and stateless society. He said, "Law is the tool of exploitation." Marx believed in labour and mass solidarity with revolution to suppress the industrialist and capitalist.
Another influential Jurisprudential school of thought and principle is Sociological school of thought. This school also comes from The United States of America. Roscoe Pound was the main philosopher of this school.
Pound focused on society. He pivoted on "Interest theory." He expressed, that Law is the balancing theory of society. There are three categories of interest theory which are individual interest, social interest and public interest. Law is concerned about the balancing of the interest.
Lastly, another school of thought is a religious school of thought. This school is practised in very few society and country. The Muslim religion is very rigid regarding its principle and beliefs. Iran and some societies of Pakistan and Afghanistan follow this school of thought. They also follow rule of law and legal concept accepted by many nations of the world.
There may arise questions if all the above mentioned legal thought and principle are accepted in the Nepalese constitution. Which of the above-mentioned school is more pressurized in the constitution? Are all these schools reasonable in the context of Nepal? Some claim that the constitution is oriented by the analytical school of thought and some contradict with it. Every individual has their perspectives regarding this.
The Constitution of Nepal, 2072 BS is the federal, secular and democratic constitution. The articles of this constitution follow rule of law, separation of power, human rights, and varieties of fundamental rights, free press, competent and free judiciary, periodic election and many other progressive principles. Different articles of the Constitution follow a different school of jurisprudential thought.
Nepalese constitution of 2072 BS comprises of Universal jurisprudential thought and principle which are accepted worldwide. The Constitution accepted Natural law concept, historical school, Analytical school, Marxist school, Realist school, Sociological school and some level of religious concept. Preamble mentions "socialist-oriented state" which is a socialist influential concept.
Article 16 to 46 of the constitution provides fundamental rights to the citizen of Nepal. Right to life, article 16 is influenced by the natural school or the concept of thought. Right of freedom, article 17 and right to equality, article 18 are also natural right concept.
The right of property, right to education, right to employment, right to labour, right of women, right of food and right to housing are the rights which are influenced by Marxist or Socialist Jurisprudence. Article 42 mentions the right to social justice and the right to social security of article 43 is sociological jurisprudence of concept.
Right to Justice and power of Judiciary which are mentioned in the constitution are the concept of the Realist school of thought.
This shows that the Nepali constitution is not solely based on one particular school of thought and rather it is a pure mixture of all the schools of thought combined.
Law may be local or municipal but not Jurisprudence. State or ruler may declare their local law but one cannot declare their Jurisprudence or Jurisprudential thought or school.

Liberal View Of Constitutuionalism
The Americans and Europeans accepted liberal view of constitutionalism and Jurisprudential thought. But they also accept the Socialist or Marxist view or concept in their constitution and law. They are giving many benefits to the labourers and masses which are similar to some socialist countries.
As mentioned above, six types of Jurisprudential thought are accepted and practised in the world. From different angle and corner, one way or the other, all these schools of thought are important for the sustainable betterment of society and democracy in the world.
Nepal has accepted all these above-mentioned schools of thought on its constitution via different laws. All school holds a different meaning and their significance in the world of Jurisprudence. None can be biased to one particular school and claim that the world can run solely based on it. Each school comes with its history, political and legal philosophy and influenced in the society. We must respect this universal truth and work accordingly.

(Silwal holds PhD degree in International Law from TU.)