A look into Nepal’s legal evolution
The law-making process has seen many ups and downs in various parts of the world and in the course of that they have taken different paths and transformation. While in Europe, the 19th century was a period of significant transformation in homicide laws across various jurisdictions, reflecting broader societal changes and the evolution of legal systems. For example, in France, the Penal Code of 1810, established under Napoleon, was a cornerstone, prescribing death for crimes such as assassination and parricide. England’s approach to homicide law was characterized by the gradual reduction of capital offenses throughout the century, culminating in the Offences Against the Person Act of 1861, which limited the death penalty primarily to murder and high treason. Across the Atlantic, the United States’ legal system was in its formative years, with the American Revolution catalyzing the development of a more unified legal framework that included the establishment of courts, policing and prisons.
From the late 18th century, Ottoman sovereigns and advisors valued French legal codes and fiscal rules as valuable tools of state-building and utilized the French language as a means of wielding soft power on the European continent. Meanwhile, in China, the Qing dynasty’s legal code attempted to comprehensively define crimes and appropriate punishments, with a particular focus on maintaining cosmic balance and social order. These diverse legal landscapes illustrate the complex interplay between law, culture, and society during a century of profound change. In neighboring British India, the Indian Penal Code of 1860 was drafted on the recommendations of the first law commission of India established in 1834 under the charter Act of 1833, and chaired by Thomas Babington Macaulay. After its reunification under the leadership of King Prithivi Narayan Shah, Nepal attempted to implement various acts, including Rajkaj Ain. However, in an attempt by Colonel Ujir Singh in 1822, no documented legal code was encountered. Prior to the passage of the first legal code in 1854, the country was ruled on the basis of Hindu Dharmashastras, which had prevailed in Nepal since ancient times.
Homicide Law in 19th century Nepal
A Study of the Muluki Ains and Legal Documents by Rajan Khatiwoda presents a comprehensive exploration of Nepal’s legal history during a crucial period. This work, part of the ‘Documenta Nepalica’ series and published by Vajra Publications, is now accessible to Nepali and South Asian audiences, offering a meticulous examination of the Muluki Ain of 1854 (Nepal’s codified legal code) and 1870, with a particular focus on its articles concerning homicide.
The Muluki Ain of 1854, along with its amendment in 1870, marks a significant legal milestone in Nepal’s history. These legal codes were developed during a period of political consolidation under Shah Kingdoms and the Rana regime, particularly under Jaṅga Bahadura Rana. Khatiwoda’s work highlights how these legal documents played a crucial role in shaping modern Nepal’s identity by codifying conceptual development of a rule of law that was both comprehensive and innovative for its time.
The book is structured in two main sections. The first part addresses the formation and enforcement of the Muluki Ain, exploring its historical context and legal significance. Khatiwoda examines the political turbulence and the rise of the Rana dynasty, which necessitated a unified legal code. The codification of the Muluki Ain is depicted as a strategic move to stabilize the country and assert the authority of the Rana rulers. This section also discusses how the Ain served not just as a legal document but as a tool for social engineering, particularly through its codification of the caste system, which further entrenched social hierarchies in the Nepali society.
The second section of the book provides an in-depth analysis of the homicide laws codified in the Muluki Ain. Khatiwoda meticulously examines the structure and content of the articles on homicide, comparing the original 1854 code with its 1870 amendment. This comparison reveals significant shifts in the legal approach to homicide over time, reflecting broader changes in the society and governance. The book details various categories of homicide, the conditions under which capital punishment was applicable, and exceptions to such severe penalties.
One of the key contributions of this study is its exploration of how these laws were implemented in practice. Khatiwoda extends his analysis beyond the theoretical aspects of the Muluki Ain to its practical application, drawing on contemporaneous legal documents to demonstrate how these laws influenced judicial decisions. This practical approach is bolstered by translations and editions of key articles and related legal documents, providing readers with direct access to historical texts.
Khatiwoda’s work has made an important contribution to the field of legal history, particularly for those interested in South Asian studies. By focusing on the Muluki Ain, he uncovers the complexities of the 19th-century legal practices in Nepal, offering insights crucial for understanding the evolution of the country’s legal and social systems. The book also serves as a valuable resource for scholars of comparative law, situating legal developments in Nepal within broader South Asian and global contexts.
‘Homicide law in 19th century Nepal’ is more than just a historical account; it is a critical exploration of the legal transformations that have shaped Nepal. Khatiwoda’s meticulous research offers a compelling look into the Muluki Ain, providing readers with a deeper understanding of how law was used as a tool for governance and social control in 19th-century Nepal. From that perspective, this book is an invaluable resource for anyone seeking to comprehend the legal and historical underpinnings of modern Nepal.
Muluki Ain: First full English translation released
Two years ago, Bidur Dangol of Vajra Books informed me about the arrival of three rare and expensive copies of the translated Muluki Ain from Heidelberg University, Germany. After several discussions, we decided to publish an affordable edition of the Muluki Ain. The Muluki Ain, initially introduced by Prime Minister Jang Bahadur Rana in 1854, evolved significantly over time. While it was simply known as Ain during much of the Rana regime, it took its current form only in the 1952 editions, after the fall of the Rana regime. Regardless, it remains a pioneering legal code in Nepal, introduced at a time when many countries did not have constitutions, making it pivotal to the legal, social, and political history of Nepal and relevant to the entire South Asian region.
The Muluki Ain was particularly notable given the absence of trained jurists in Nepal at the time and the lack of a direct impetus for such comprehensive codification in the mid-19th century. It aimed to replace fragmented regional legal systems, bringing Nepal under a single legal framework. Before this, King Prithivi Narayan Shah had promulgated various Ain, including the Rajkaj Ain of 1768, but none were as comprehensive as the Muluki Ain. The current English version has been meticulously translated and analyzed by three prominent scholars: Dr. Rajan Khatiwoda, Dr. Simon Cubelic, and Prof. Dr. Axel Michaels, who have a deep understanding of Hindu jurisprudence practiced in Bharatbarsha.
Although attributed to Jang Bahadur Rana, the Muluki Ain was further improved by the law council (Ain Kausala), which consisted of around 230 members from various walks of life, including senior members of the Rana family, Rajgurus, Chautariyas, civil and military officers, and notable individuals from various regions. This contribution is duly acknowledged by the translators. Interestingly, the Muluki Ain also replaced the 'Kitabisawal' with the 'Mulukisawal' issued by the same council and published by Gorkhapatra Chapakhana in 1936.
As explained in the preface, the Muluki Ain is "a book that is more quoted than understood." This may be due to various interpretations and misinterpretations over time. The text predominantly encapsulates Brahmanical social ideas, legal concepts, and local practices, vividly portraying the socio-economic and religious complexities of mid-19th century Nepal.
The primary objective of this publication is to make the Muluki Ain accessible to a wider audience and inform them about its significance. While scholars have different opinions about it, very few have thoroughly read it. Many make sweeping statements about it, including both native and foreign scholars. Some foreign scholars have worked on the Muluki Ain, but their perspectives may not fully capture its essence. Societies evolve, and understanding the dynamics of a historical society is crucial. The Muluki Ain offers ample opportunities to understand laws surrounding caste and family systems, purity and sexuality, and punishment systems in 19th-century Nepal. The text covers penalties for a wide range of offenses, from serious crimes like theft and murder to minor infractions such as spitting and farting, offering a fascinating glimpse into the social norms and legal practices of the time.
The current translation will greatly aid scholars, researchers, and those interested in the socio-economic and political environment of South Asia and Nepal. One of the translators rightly argues that legal codification, a first step towards constitutional law, is not entirely a positive law nor based on the modern concept of equality before the law. However, it should be understood and analyzed as a historical text, a unique example of the codification process in South Asia at a time when such processes were limited to the Western world, starting from Europe with Prussia (1794), France (1804), the Habsburg monarchy (1812), and Japan (1896-1898).
Saubhagya Pradhananga, former head of the National Archives of Nepal, echoes this sentiment in the preface, stating that the book will become a crucial resource for understanding the role of law in the formation of modern Nepal. It will be useful for scholars, students, journalists, and others interested in how Nepal has evolved over time. Originally published by Heidelberg University, Vajra Books has now made this seminal work readily available to Nepalese and South Asian audiences. Bidur Dangol and Vajra Books deserve congratulations for bringing this work to the public. The book was published on the 20th anniversary of Vajra Books in Thamel, with a 20 percent discount offered on it.
