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Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 Session 04 Sources of Law –Part 1 Contents Introduction 4.1 Identify the sources of law. 4.2 Historical development of the Sources 4.3 Sources of laws in Sri Lanka 4.4 Legislations 4.5 The Courts Introduction Over time, the term "Sources" has been defined and revised by numerous generations of legal writers. The development. of law is based in accordance with these sources. It can be identified that the evolution of law has been influenced by various morals, religions, views of justice, and historical occurrences; the latter is a reference to legal textbooks where authors have attempted to construct legal concepts. Therefore, Law is generated from a variety of sources, including statutes, traditions, and court precedent. The significance of the legislation and the court as the primary sources of law in Sri Lanka will be covered in this session. The other sources of laws will be covered in the session afterward. 4.1 Identify the sources of law. The springs or fountains from which we can derive legal authority when resolving legal issues are known as sources of law. By virtue of their effects, sources of law can be divided into two major types. In other words, some sources are binding and must be consulted when dealing with a legal matter. Second, certain sources are only persuasive, therefore consulting them is not required when resolving a legal dispute. Whether the source of law is a primary source or a secondary source is the other approach 39 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 categorization. Primary sources are required since they have a binding effect, but secondary sources are only recommended because they are more compelling. 4.2 Historical development of the sources When researching the evolution of sources, it is critical to learn about the history of sources in Sri Lanka. Ceylon has been ruled by three European powers in the past. The Portuguese ruled from 1505 to 1656, the Dutch from 1656 to 1796, and the British from 1796 to 1948, each for about a century and a half. In 1815, the Kandyan provinces were subject to foreign rule for the first time. Little is known about the administration of law and justice under the Portuguese, and they have made little impact on our legal system. However, we have a lot of knowledge about the Dutch courts and the legal systems they oversaw, and this information will be covered in detail in the sections that follow. The nation at the time adopted English law and legal principles into many areas of our legal system, taking over control of the maritime provinces from the Dutch in 1796 through a statute and other means. Further, they acknowledged the Kandyan law as one of the systems of personal law that existed in the nation after the annexation of the Kandyan territories in 1815. Besides Tesawlamai law and Muslim laws, all contributed as sources in developing the legal system of Sri Lanka. Activity 4.1 1 What is the meaning of sources. 2 Identify the development of the sources of law. 4.3 Sources of law in Sri Lanka The expression “Sources of law” carries with it a number of different meanings. In one sense it means the system of law. In a strictly legal sense, it shows where the law comes from or in other words who makes it. The latter meaning will be discussed in this lesson. There are many was by which law can be created. These ways as mentioned earlier are recognized as the sources of law. The recognized sourced of law in Sri Lanka are as follows. The constitution and Legislation 40 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 Case laws Legal materials Customs and religions Writings of jurists Equity 41 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 Source of Law Primary Sources Secondary Sources The Customs & Legal Writing of Equity Constitution Religions materials Jurists Legislations Statutes Digests, Encyclopaedias, legal Case Laws dictionaries, and Bibliographies Law reports Text Books Legal Periodiacals Figure: Sources of Law 4.4 The Constitution and Legislation Legislation is the most important source of law. The most important legislation is the constitution. The Constitution is described as the ‘Supreme law of the Democratic Socialist Republic of Sri Lanka. It contains provisions on the statutes of the Republic of Sri Lanka. Establishes Buddhism as the state religion, Sinhala as the official language, and Sinhala and Tamil as national languages. It has introduced important legal provisions on the statute of Sri Lankan citizenship, and these qualify all other laws regarding citizenship and qualify all other laws regarding citizenship. It contains the basic legal provisions pertaining to the structure of government. Another important aspect of the Constitution is the rights it guarantees to citizens and all persons. These are described as you know, as Fundamental rights. The Constitution also records the directive principles of state policy and the state’s fundamental duties which must serve as guides in the enactment of the law, and in 42 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 the government of the country. The directive principles of state policy and the state’s fundamental duties must serve as guides ‘in the enactment of the law, and in the government of the country.’ the directive principles or state cy are relevant in interpreting the constitutional provisions on Fundamental rights. It has to be noted that the guarantee is given in Constitution regards Fundamental Rights does not modify existing or passed laws, whether written or unwritten. They cannot be challenged under the constitution, on the basis of a violation of fundamental Rights. Executive and Administrative action that’s justified by reference to past laws cannot be challenged. In addition, the fundamental rights provisions in the Constitution can be used to challenge in the Supreme court, only the action of the state and public authorities. It is ineffective to question violations by private individuals or organizations. The concept of public interest litigation, familiar to India has not been developed in this country. Consequently, the constitution has intrinsic limitations and other sources become more important that the Constitution as sources of Sri Lanka. However prospective legislation can be challenged in the Supreme Court during its passage through Parliament on the grounds of conflict with provisions of the Constitution, especially the guarantees of fundamental rights. Activity 4.2 1. Discuss the importance of the Constitution as a source of law. 2. What are the fundamental rights which included in the Constitution of Sri Lanka? 3. What is the importance of fundamental rights? 43 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 The constitution also deals with important matters such as the power of the three main organs of the state namely, the parliament, the executive, and the judiciary, the procedure for the government the franchise the power of Provincial Councils, changes and amendments to the Constitution Etc. The Constitution takes precedence over any other laws made by the Parliament in the form of statutes. Since the beginning of the British era, local legislation has made up most of our law in a wide range of contexts. Judges, attorneys, academics, and legislators all agree that the best way to introduce legal improvements today is through legislation. This is because, even though judges have amended and modified the law in significant areas, there is a generally conservative view toward the judicial role. We shall see that the device of judicial interpretation sometimes enables courts to ignore even the actual intention of the legislature. However, the courts often state that it is the legislature rather than they who can make changes in the law. His attitude is generally not observed in the Indian Supreme Court which has adopted an activist stance in recent years. Major changes in the law have indeed always been affected by legislation. The concept of private ownership which is fundamental to the Roman-Dutch law-derived law of property in Sri Lanka has been greatly modified in Sri Lanka in recent times by legislation like Rent laws and Land reform laws. Thus, legislations take precedence over all other sources of law. Today there are multidisciplinary statutes that regulate innumerable areas of activity. The words ordinance, act laws are used to describe legislation enacted by the Supreme legislative authority of Sri Lanka and reflect the different constitutional changes that have taken place in this country. The term ordnance refers to statutes enacted before independence. These terms Acts and Laws refer to legislation in the post-independence period. The word laws are used for legislation enacted under the Republican Constitution of 1972. The word Act is used for legislation enacted under the present 1978 Constitution. Activity 4 3 Activity. 4 3. 1 Identify the importance of other legislation as a source of laws in Sri Lanka. 1. Identify the importance of other legislation as a source of laws in Sri Lanka. 2 Printout some basic legislations in Sri Lanka 2. Point out some basic legislations in Sri Lanka. 44 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 4.5 Case laws Courts make law in a variety of ways. One method is interpretation. This means that the courts make law while determining the meaning of statutes, administrative rules, and executive orders. Similarly, law can be found in cases decided by superior courts. The case decision has two distinct features. One is the order for the litigant's dispute. The other is the decisionmaking rule and principle. In the same way that courts make laws, these rules and principles may be regarded as authoritative statements of the law for subsequent cases. Decisions of the Court of law become a source of law when they are followed a binding precedent in late cases decided in the court. They operate as binding precedents because they provide the guidelines for decision- making by judges in future cases that come up before the courts. It is customary to refer to the decision in the earlier case as binding judicial precedents. When the principles of law pronounced in the judicial decision are applied and interpreted and are thus developed through a series of cases that involve similar or identical factual situations, a body of law is created in the course of time which becomes an important source of law. The principle does develop and determine the result or conclusion, a court will arrive at in a similar factual situation. This is called judicial precedent. Different jurisdictions adopt different approaches to judicial precedent as a source of law. In countries with Roman law or civil law legal traditions, the bulk of the law is contained in written codes or treaties. The role of the judiciary in developing law through decided cases is then more limited. Judges are called upon to use the deductive method of judicial reasoning since the principles of law are already set out in codes and treaties. In countries that belong a common law system, however, judicial decisions are conceded a pre-eminent place a distinct formative year. The bulk of the law is non-statutory and cannot be ascertained from treaties. Thus, it is the court that develops principles of law in deciding actual cases that come up before them. The judicial method is thus described as inductive rather than deductive. 45 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 Common law is often described as judge-made law. This is because the judicial method of deciding cases permits the Judge to create or make law, and the common law is a product of that creativity. The judge’s role in making law, and the importance of case law as a source of law has diminished somewhat even in common law countries because of the increasing codification of certain branes of law, and the emphasis placed on legislation for initiating and effecting legal change. Activity 4.4 1 Identify the importance of case laws as a source of laws in Sri Lanka. 2 Find out what is common law? Recommended reading Weeramantry CG, The Law of Contracts, vol 1 (2nd edn, Stamford Lake (Pvt) Ltd 1999) Cooray LJM, An Introduction to the Legal System of Ceylon (1st edn, Lake House Investments 1972) Hage J and Akkermans B (eds), Introduction to Law (2014) Herbert M. Kritzer , "Legal Systems of the World: A Political, Social, and Cultural Encyclopedia" (2002) H.L.A. Hart , "The Concept of Law" (2nd Edition, Oxford University Press (1961) Summary This session discusses the sources of law, with a focus on Sri Lanka. It has listed various sources of laws, such as the constitution, statutes, court cases, and numerous other sources. This chapter discussed the constitution and legislation as sources of law. It also 46 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙV – OSU4404 Session 04: Sources of Law - Part 1 discusses how court cases become a source of law. Since this is intended for non-law students, the sources of law are described in a straightforward manner. Learning Outcomes ▪ Identify the sources of laws. ▪ Rank the sources of law from highest to lowest. ▪ Find out the importance of the Constitution. ▪ Identify the fundamental rights of Sri Lankan citizens. ▪ Understand the importance of statutes. ▪ Understand the importance of court cases. Review Questions 1 Make a list of fundamental rights. 2 What is the importance of court cases as a source of law? 3 Discuss the sources of law in Sri Lanka, including legislations and case laws, and explain their relative importance and hierarchy. 4 Analyze the role of judicial precedent in the development of law in Sri Lanka, considering its advantages and limitations. 5 Explain the process of enacting legislations in Sri Lanka, from the proposal stage to the final passing of a law, highlighting the various stages and entities involved. 6 Discuss the significance of the Constitution as a source of law in Sri Lanka, focusing on its supremacy, fundamental rights provisions, and the role of the judiciary in interpreting constitutional provisions. 47 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law Session 03 The Fundamentals of the Law Contents Introduction 3.1 Basic legal terminologies 3.2 Rule of law 3.3 Equality before law 3.4 Separation of power 3.5 Constitutionalism 3.6 Concept of Justice 3.7 Rights and Duties 3.8 Fundamental and human rights 3.9 The principle of public interest 3.10 Unjust enrichment Introduction The general principles of law are a collection of assertions that explain how legal standards function. Even if they are not explicitly mentioned in the constitution or statutes, they are part of the legal system of any country. Students who learn the basics of law should be familiar with these legal concepts and terminologies. As a result, this lesson covers some basic legal principles and concepts for your comprehension. In this session, we also attempt to introduce you to basic legal terminology that you will encounter and use frequently in the following sessions. 27 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law 3.1 Basic legal terminologies Sri Lankan laws can be usefully classified into broad categories using terminology familiar to English law. Thus, laws and judicial proceedings have been broadly classified as either criminal or civil law. A civil wrong is typically defined as a breach of contract, breach of trust, or the causing of non-criminal civil injuries. The sanction for civil wrong in the English legal tradition is not punishment by the state, and the remedy provided is personal legal remedy for the individual who has been wronged. Certain terminologies are used in both civil and common law cases. When a case is heard in an appeal against a lower court decision, the person who brings the appeal is referred to as the appellant. The other party involved in the lower court litigation becomes the respondent to the appeal. The term "party" refers to any person involved in litigation, whether it is criminal or civil in nature. A court offers its judgment on a topic of law brought up in the case. The case facts are discussed here. When making its conclusion, it can feel compelled to conform to an earlier court ruling. Yet because the legal issue in this case is different from the former decision in some ways, it might set it apart from that one. It may reject the authority of the prior decision; in which case it will be overruled. The phrase Civil law is normally used in the narrow sense which is distinguished from the English common law which has inspired AngloAmerican jurisprudence and the legal system of many Asian and African countries in the Commonwealth. The Phase ‘common law is used to focus on the judge-made quality of English law through many centuries of judicial pronouncement in decided cases. English common law is thus not synonymous with English law since the latter would include a wide variety of source of law. It is the English common law that is considered a major system of jurisprudence that has influenced the laws and legal thoughts in many countries. The phrase personal law or customary laws is used today to describe the laws that are indigenous and peculiar to the legal traditions of Sri Lanka. The phrase ‘personal law’ was originally used however to indicate that an indigenous law applied to a particular class of inhabitants within the Island rather than to all persons within a territorial unit. 28 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law Activity 3.1 1 List the basic terminologies which discusses above? 2 Identify the difference between civil law and common law. 3.2 Rule of Law The Rule of Law is a set of formal and procedural rules that regulate how a community is governed. The formal principles involve the generality, clarity, publicity, stability, and productivity of the standards that govern a community. The procedural principles involve the means by which these norms are enforced, as well as the institutions required for their enforcement, such as courts and an independent judiciary. According to some, the Rule of Law also includes substantive goals such as a presumption of liberty and respect for private property rights. The rule of law is comprised of three major components. they are Supremacy of the law, Equality before the law and Predominance of legal spirit which means the court should be free from impartiality and external influence. The rule of law ensures that fundamental rights are safeguarded, and that justice is available to all. It can be identified as one of the key dimensions that determine the quality and good governance of a country. Commercial and business laws are also regulated by the rule of law. The rule of law ensures the legal system's stability and predictability. A stable civil law system is required for contracts to be binding and enforced in a society. Under the rule of law, equality before the law allows for legal systems to ensure that contract parties are treated equally before the law and vulnerable people of the community are safeguarded when engaging into contracts. 29 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law 3.3 Equality before law Equality before the law entails the right of all human beings to be treated equally before the law. They are also entitled to equal legal protection, which means that everyone has the right to be treated fairly and not discriminated against because of their race, colour, gender, language, religion, political opinions, status, or any other illegal reason. The "rule of law" in this case excludes the notion of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary courts. Equality before the law is defined as the equal submission of all classes to the ordinary law of the land administered by the ordinary law courts. The principle that everyone should be subject to the law fairly and equally, even those in positions of authority, comes from the Magna Carta. This idea serves as the cornerstone of our governance in Sri Lanka today, where everyone is held responsible for their actions in accordance with the law. To ensure a free and safe society for all citizens, these laws are created by the Parliament and then implemented and interpreted by the Courts. Everyone is required to obey the law under the rule of law, including the prime minister and law enforcement officials. Therefore, no exceptions apply. Activity 3.2 1 What is the meaning of rule of law? 2 Identify the importance of the principal of equality. 3.4 Separation of powers. Separation of powers refers to the division of the legislative, executive, and judicial functions of government among separate and independent bodies. It has been argued that such a separation limits the possibility of arbitrary government excesses because the approval of all three branches is required for the making, executing, and administering of laws. 30 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law Sri Lanka is a unitary state, and its people have sovereignty, according to the 1978 Constitution. While unalienable, sovereignty includes the powers of government. Articles 3 and 4 of the Constitution contain the seeds of the doctrine of separation of powers. Because people's sovereignty is unalienable, it is safe to assume that powers of government are as well, because the former includes the latter. Article 4 of the Constitution specifies how the powers of government are to be exercised. That is to say: The legislative power of the people shall be exercised by Parliament, consisting of elected representatives of the people and by the people at a Referendum The executive power of the people, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the people The judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the Constitution, or created and established by law, except in regard to matters relating to parliamentary privileges, immunities and powers of Parliament and its Members, wherein judicial power if the people may be exercised directly by Parliament according to law. Figure: Separation of Powers 31 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law Executive Judicial Legistive 3.5 Constitutionalism A democratic government is given legitimacy through the idea of constitutionalism. It cannot be mistaken with the legitimacy of the actions taken by government authorities and should not be. The importance of constitutionalism outweighs that of a written Constitution. Most nations, with a few exceptions, have constitutions, but this in no way implies that they adhere to constitutionalism. Separation of powers, judicial oversight, and accountable government are some of the fundamental ideas that have evolved over time and represent the idea of constitutionalism. 3.6 Concept of justice Justice is an important concept in ethics, legal theory, and political philosophy. We apply it to private decisions as well as to laws and governmental policies, and in each case, we believe that if something is unjust, it is a compelling argument against it. When it comes to the relationship between the individual and the state, justice is when both 32 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law parties are treated fairly by the government and when disagreements are settled using objective standards rather than subjective judgment. In the broadest sense, justice is fairness. Justice cannot guarantee that every dispute is resolved "correctly" or that no mistakes are made, but it should ensure that the process by which decisions are made, and goods are allocated is fair and produces an acceptable result in the aggregate, even if justice fails in an individual case. When the distribution of political power and economic opportunity is as uniform as possible, or when the social and political system is such that it tends toward a just distribution even if it is not achieved, justice occurs. Justice is clearly an ideal, and ideals should be pursued but may not be realized. 3.7 Rights and duties Rights are legal, social, or ethical principles granted by a governing body. The duties of the person, the governing body, on the other hand, are responsibilities or obligations that must be fulfilled by the same person. Their rights and duties are two sides of the same coin. The distinction between rights and duties is that rights are founded on an individual's privilege, whereas duties are founded on a person's obligation. Citizens must play their roles in law enforcement, taxation, court service, school attendance, democracy participation, respect for all, respect for diversity, and so on. 3.8 Fundamental rights and human rights As we previously discussed, the term "rights" refers to a moral or legal claim to something. According to the law, rights are understood as a person's legitimate demand that is acknowledged by society and recognized by law. Human or fundamental rights are both acceptable. Fundamental rights are those that are essential to a country's inhabitants' way of life. This is among the most significant provisions in the constitution of Sri Lanka. The fundamental rights protected by the constitution are listed in Chapter III of the constitution of the Democratic Socialist Republic of Sri Lanka 1978. The listed rights and freedoms are protected by the Chapter. (10–17 articles) Freedom of thought, conscience, and religion Freedom from torture Right to equality 33 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law Freedom from arbitrary arrest, detention and punishment, and prohibition of retroactive penal legislation Freedom of speech, assembly, association, occupation, and movement Human rights, on the other hand, refer to the rights that all people have regardless of their nationality, ethnicity, caste, religion, gender, etc. The primary distinction between basic rights and human rights is that the latter are universally recognized, whereas fundamental rights are country specific. Activity 3.3 1 What is the difference between fundamental and human rights? 2 What are the fundamental rights identified in Sri Lanka. 3.9 The principle of public interest The phrase "public interest" refers to issues involving the wellbeing of the people. Anything affecting the rights, health, or finances of the general population is considered to be in the public interest. The administration and operations of local, state, and federal governments are a topic of widespread concern among residents. Like the Prime Minister had stated, every decision made by a civil official should be made with the welfare of the general populace as the primary consideration. Every law must take into account the welfare of society, not only the State or a portion of it, according to a general concept. This suggests that public rights and public interests supersede individual rights and private interests. 34 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law For instance, if a State considers amending a provision of the Constitution, the change must be in the interests of the governed, not of a political group. 3.10 Unjust enrichment A general rule of contract law states that a party who prevails in a lawsuit involving a breach of a contract is entitled to be reinstated in the position it would have been in had the breach not taken place. According to the idea of unjust enrichment, no one is permitted to make money or gain wealth unfairly at the expense of another. "The retention of a benefit granted by another, without making recompense, in circumstances when reimbursement is fairly expected," is how unjust enrichment is described. Unjust enrichment occurs when the plaintiff (contractor) pays for something that the defendant (owner) unfairly receives and keeps. Restitution, which is the return of the contractor and owner to a just and equitable state, comes before unjust enrichment. Restitution is the restoration of justice. Unjust enrichment is the act or state of imbalance or unfairness. For instance, the owner can already have a substantially finished mineral processing facility in their possession without having made any payments to the contractor. The court may use what essentially amounts to a quantum meruit approach to determine the number of damages to be awarded to the contractor because this circumstance is obviously unfair. In certain situations, the person or people deciding on the damages award may ignore the specifics of the contract and consider the worth of the service completed instead. Restitution can be made in cases of unjust enrichment in business transactions by simply returning the purchased goods. For instance, if the recipient did not pay for a cargo of lumber, restitution would only involve returning the lumber. In general, returning goods to a contractor after they have been installed or work has been done does not constitute restitution in the construction sector. A contractor will not get compensation upon the dismantling of a processing plant. Instead, the contractor must attempt to collect the fair market value of the work completed as established by the contract's specified dispute resolution procedure. Recommended reading The Constitution of the Democratic Socialist Republic of Sri Lanka (1978) 35 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law Wade & Philips, Constitutional Law, 9th ed. Edited by Bradley A.W., (1977) Stanford Encyclopaedia of Philosophy. Summary This lesson discussed several essential legal terms that are crucial to understand when reading the business law course materials for this degree. The definitions of legal terms such rule of law, equality before the law, separation of powers, constitutionalism, the notion of justice, rights and obligations, fundamental rights and human rights, the public interest doctrine, and unjust enrichment are also highlighted. Despite the fact that this session is intended for non-law students, a wide range of legal topics are covered by these notions, which have not been covered in depth in previous sessions. Learning Outcomes ▪ Identify the basic legal terminologies. ▪ List the definitions of some basic legal concepts. ▪ Define what is rule of law. ▪ Find out the importance of equality before the law. ▪ Get an idea about separation of powers and constitutionalism. ▪ Identify the difference between rights and duties and fundamental rights and human rights. ▪ Define unjust enrichment. Review Questions 1. What is constitutionalism? 2. What are the bodies of separation of power in Sri Lanka? 3. What is unjust enrichment? Why is it important for business students? 4. Identify the difference between fundamental rights and human rights. 36 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙΙ – OSU4404 Session 03: The Fundamentals of Law 5. How do the fundamental principles and concepts of law, such as the Rule of Law and legal rights, contribute to the establishment of a just and fair legal system? 6. Discuss the relationship between the concept of justice and the principles of morality and ethics within the context of legal systems. 7. Analyze a hypothetical scenario where conflicting rights, such as freedom of expression and the right to privacy, come into conflict. How would you determine a fair and just resolution in such a situation? 8. Discuss the potential challenges and ethical dilemmas that may arise when enforcing the Rule of Law in a society where corruption and political influence undermine the legal system. 9. Examine a case where an individual or group alleges unjust enrichment. How would you evaluate the validity of their claim and determine an appropriate legal remedy? 37 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law Session 02 An Introduction to Different Systems of Law Contents Introduction 2.1 Development of different legal systems in world 2.2 Dualism and Monism 2.3 Characteristics of the legal systems of Sri Lanka 2.4 Roman-Dutch Law 2.5 English Law 2.6 Application of personal laws in Sri Lanka 2.7 Kandyan Law 2.8 Tesawalamai Law 2.9 Muslim Law Introduction This session aims to provide an introduction to the diverse legal traditions found around the world and how they have influenced the legal systems in Sri Lanka. We will explore various legal traditions, including civil law, common law, Islamic law, customary law, and religious law, understanding their historical origins, principles, and unique characteristics. These legal traditions have shaped the legal frameworks of different nations, reflecting their cultural, historical, and social contexts. In the context of Sri Lanka, we will delve into the impact of English law and Roman Dutch law, stemming from its colonial past, on the country's legal system. We will also examine Sri Lanka's plural legal system, which encompasses religious, customary, and state laws, reflecting the country's diverse cultural heritage. By gaining insights into different legal traditions and their influence on Sri Lanka's legal systems, we will develop a deeper understanding of the complexities and dynamics of legal frameworks within a global context. 16 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law 2.1 Development of different legal systems in the world The modern world has four main legal systems. Common law, civil law, religious law, and customary laws. A fifth category of legal systems has emerged as the globe becomes increasingly interdependent; this category includes hybrid legal systems, which are a blend of two or more different legal systems which we can experience in Sri Lanka. English common law can be identified as a legal system that gives legal force for written judicial decisions. As a result, through precedent, the legal system recognizes the ability of a Court to interpret and apply the law to future litigants. A precedent is a judicial opinion that serves as legal authority in future cases involving the same or similar legal issues. The benefit of this system is consistency and the resolution of disputes without the parties having to appear in court. The legal system of common law is adversarial. This indicates that the court will hear the cases presented by the parties. Before reaching a decision, the judge or jury hears the evidence and arguments from the parties. It is the responsibility of the parties to gather evidence, make legal arguments, and make their strongest case. Judges and juries are not tasked with conducting their own independent investigations or supporting parties' legal arguments. A party is obligated to bring up any legal concerns. Civil law systems evolved in Europe and are based on Roman and Napoleonic legal systems. Because all the legal rules are contained in one or more comprehensive legislative enactments, civil law systems are also known as code systems. They are inquisitorial systems in which judges actively investigate cases. Judges have the authority to request documents and testimony, as well as shape the legal claims of the parties. Furthermore, judges are not required to follow the decisions of other courts in similar cases. The law is in the code, not in the cases. The legislature, not the courts, is the primary venue for enacting and amending laws. A hybrid legal system combines elements of multiple approaches to create a system that is unique to the country. Many countries have hybrid legal systems that combine common, civil, religious, and customary law. 17 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law Activity 2.1 1 Discuss what are the different legal systems which can be identified in the world. 2 Identify the difference between civil and common legal systems? 3 What is the difference between adversarial and inquisitorial legal systems? 2.2 Dualism and Monism Initially, monism and dualism were intended to represent two competing theories of how international and domestic law relate to one another. When it comes to how states really apply international law in their national systems, most, if not all, are monists. Monist countries recognize the internal and external legal systems as one. The legality or illegality of an action is determined by both national legal regulations and international regulations to which a state has agreed, such as through a treaty. The majority of so-called "monist" governments distinguish between treaties and other types of international law, such as customary international law or jus cogens; as a result, these states may be partially monist and partially dualist. International law does not need to be translated into national law in a genuine monist country. It is simply incorporated and has an immediate effect on national or domestic laws. Ratifying an international treaty immediately incorporates the law into national law, and customary international law is also considered part of national law. On the other hand, dualist countries emphasize the distinction between national and international law and advocate for the incorporation of the latter into the former. International law does not exist as a law without this translation. International law must also be national law, or it is not law at all. When a state accepts a treaty but fails to adapt its national law to conform to the treaty or fails to create a national law explicitly incorporating the treaty, it violates international law. However, one cannot claim that the treaty has been incorporated into national law. It cannot be relied on by citizens and cannot be applied by judges. National laws that contradict it continue to be 18 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law in effect. Since Sri Lanka is a dualist nation, international law cannot be deemed to be a body of law without this translation. 2.3 Characteristics of the Sri Lankan Legal System The Sri Lankan legal system affords great fascination for scholars interested in comparative law. It is a combination of several sub-systems of indigenous law, such as Kandyan law and Tesawalamai law. Superimposed upon them are laws derived from three of the greatest systems of jurisprudence the world has known as Roman law, Islamic law, and English common law. Within Sri Lanka, the application of plural laws with frequently contradictory legal concepts and principles creates unique challenges. When one legal problem attracts legal principles derived from several different legal subsystems, a conflict of law situation is clearly possible. the legislators and courts of Sri Lanka employ a variety of approaches to resolving such legal conflicts. A significant strand of uniformity in the law can be discerned using this complex pattern. This is because the legislators of Sri Lanka have introduced uniformly applicable laws in many areas of activity since colonial times. The parliamentary democracy system in Sri Lanka has ensured that the legislator has played a significant role in lawmaking. In addition to the indigenous law losing importance, a general law of Sri Lanka emerged that applies to all citizens. Because general law is based on English law and Roman-Dutch law, it combines two distinct jurisprudential traditions: the Anglo-American Common law tradition and the Roman law-oriented English civil law tradition. As a result, Sri Lanka is frequently regarded as a country with multiple jurisdictions. This grouping is significant because it highlights the fact that some features of the two distinct common law and civil law traditions can be found in the Sri Lankan legal system. Thus, judicial decisions, for example, are an important source of law in Sri Lanka. Because our courts follow the concepts of binding judicial presidents, and judges develop laws through the process of deciding litigated disputes in the courts. On the other hand, Roman-Dutch law enshrines the civil law tradition; legal principles are also derived from the views and exposition of the law in the writings of seventeenth-century Dutch jurists. Our Court procedure and practice are primarily based on English law and enunciate English law value. There are substantive law areas where English law has excluded Roman Dutch law, others where an English superstructure has formed over, or common law terms and concepts familiar to our mixed general law, and differences between the Roman or civil law oriented legal tradition and the English common law tradition. 19 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law Sri Lanka has a strong court system. This characteristic is very much a product of its colonial history, particularly during the period of British Rule. If Sri Lanka is compared with other Commonwealth countries it may demonstrate that the English legal tradition in regard to the court system and the legal profession has retained its influence, through many decades of change. Legal Systems Of Sri Lanka English Law Roman Dutch Law Personal Laws Kandyan Law Muslim Law Thesawalamei Law Figure: Legal Systems of Sri Lanka 20 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law 2.4 Roman-Dutch Law The Dutch arrived in Sri Lanka in 1656 and took over areas previously held by the Portuguese. From 1656 to 1796, the Dutch ruled over a large portion of the maritime provinces. During this time, they implemented their laws in Sri Lanka. This is referred to as Roman-Dutch law. The term Roman-Dutch law suggested that it was made up of both Roman and Dutch laws. However, it was a hybrid of Roman law and Dutch and German local customs. From the beginning, Roman-Dutch law applied to the Dutch settlers and their native servants. Likewise, it was applied to the Sinhalese living within those areas during this period they established a system of Courts in the areas they ruled. During their time in power, the Dutch were never able to rule the Kandyan provinces. As a result, Roman-Dutch law had no bearing on Kandyan laws at the time. However, this was altered during the British occupation. The Dutch, on the other hand, recognized the laws and customs of Muslims and Tamils. Even though the Dutch introduced Roman-Dutch law, it was expanded by the British. Many areas were governed by Roman-Dutch law. It is now known as Sri Lankan common law or residential law. This means that Roman-Dutch law is used to fill gaps in personal laws in all areas not covered by Sri Lankan statutes. Similarly, Roman Dutch law contributes to the formation of general law in Sri Lanka through the incorporation of English law principles. When their own personal laws do not apply, the General law applies to all persons in Sri Lanka. The application of Roman-Dutch law in modern times can be seen in the areas of Family law. Many concepts concerning marriage, marriage consequences, and parent and child guardians are governed by RomanDutch law. Aside from the law of delict, the principles of Roman Dutch law govern the law of contract, contractual capacity, the law of property, state liability, ownership, possession, and many other areas. 21 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law Activity 2.2 1 What are the two main legal traditions in world. 2 Identify the characteristics in the legal system of Sri Lanka. 2.5 English law The Dutch surrendered to the British the coastal areas and other maritime provinces governed by them in 1796. The Dutch ceded this territory to the United Kingdom government. As a result, they became a British colony. To govern this, the British instituted English law. As a result, English law was applied in this case. After 1815, however, English law applied to the entire island. The introduction of English law into Sri Lanka occurred primarily in two ways. The first is through statutes, and the second is through the courts. English law has had a significant impact on our legal system. We can no longer distinguish between our own legal principles and legal concepts because they have become entwined. Today, English law can be found. primarily in constitutional law, commercial law, procedural laws, testamentary actions, criminal law, administrative laws, and income tax laws. Activity 2.3 1 Identify the areas which govern by English law. 22 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law 2.6 Application of personal laws in Sri Lanka In order to understand the scope and the application of laws that applied only to a certain section of the population of Sri Lanka, understanding the difference between personal law and territorial law is necessary. Personal law is the law that applies to a specific segment of the population or ethnic group. This means that the application of personal law is based on certain common factors that they all share. As a result, the application of personal law can be determined by the community to which a person belongs by birth or by religious adherence. Territorial law is the law that applies to all people who live in a specific territory. As a result, the application of territorial law is influenced by geographical factors. 2.7 Kandyan Law Kandyan law refers to the indigenous Sinhalese law that is enforced in the Kandyan Provinces. However, it is now known as the law that applies to the descendants of Sinhala people living in the Kandyan Provinces since 1815 under the category of Kandyan Sinhalese. Many case decisions demonstrate that Europeans, low country Sinhalese, and Tamils are not included in the definition of Kandyan Sinhalese. It should be noted that the application of Kandyan law has been limited in some areas. As a result, it only applies to the flowing areas of law such as person, property, and succession. 2.8 Tesawalamai Law The word Tesawalamai means the customs of the land. The customs of the Jaffna Provinces were codified and applied by the Dutch and British since 1707 and declared as Tesawalamai code in 1806. The Tesawalamai applies only to the Tamils who are inhabitants of the Nothern province. Today, the entire Northern Province is administered by the province of Jaffna. The Tesawalamai, however, only applies to Tamils in the Mannar District and not to Tamils in Trincomalee and Batticaloa. If a Tamil man is born in Jaffna and has lived there for a long time and then changes his residence and permanently settles in Colombo, he is no longer governed by Tesawalamai law Besides, when a woman who is not subject to Tesawalamai law marries a man who is subject to Tesawalamai law, she is subject to Tesawalamai law for the duration of the marriage. 23 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law 2.9 Muslim Law The Muslim law is the law which applies to every believer in Islam, whatever be his rase and wherever he may reside in Sri Lanka. In Sri Lanka this area is governed by the Mohammadan Code of 1806 and many statutes. Muslims are divided into two main sects, Sunnis and the Shariah. Sunni sect is divided into four main schools. One of them is Shaffi, it is recognized that Sri Lankan Muslims belongs to the Shafi sect. As stated above Muslim law applied to all Muslims whether they are so by birth or conversion. This means that a person can become a Muslim by birth or by Conversion. There are numerous areas that are governed by Muslim law. They are Marriage/Divorce, Inheritance, Child Adaptation, and Maintenance. To marry under Muslim law, both parties in a marriage must be Muslims. The minimum age for marriage is not recognized by Muslim law. However, the country's criminal law states that anyone who has sexual relations with a girl under the age of 16 commits the crime of rape. The girl's consent is irrelevant in this case. Thus, even though their law does not prohibit such marriages, a Muslim cannot marry a girl under the age of 16. A Muslim man is permitted to marry four wives under Islamic law. However, if a person is converted to Islam for the purpose of marrying a second time while the first wife is alive or not divorced, he may become guilty of bigamy. In the case of Divorce, Muslim law does not provide any specific ground. But the procedure for a man differs from the procedure for a woman in divorce. Recommended reading Weeramantry CG, The Law of Contracts, vol 1 (2nd edn, Stamford Lake (Pvt) Ltd 1999) Cooray LJM, An Introduction to the Legal System of Ceylon (1st edn, Lake House Investments 1972) Grilliot HJ, Introduction to Law and Legal Systems (1991) 24 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law Summary Throughout history, the world has recognized various legal traditions and legal systems. These legal systems had a significant impact on the development of the legal system of Sri Lanka. As a consequence, many authors compared the legal system of Sri Lanka to a multi-coloured mosaic. This session discussed the introduction of those different legal systems, their characteristics, and the application in a simple manner. Learning Outcomes Identify the development of the different legal systems of the world. Find out the differences between Dualism and monism. Determine the characteristics of the plural legal system on Sri Lanka Evaluate the areas governed by different personal laws in Sri Lanka Identify the difference between civil law and common law countries. Find out the application of English law and Roman Dutch law in Sri Lanka Review Questions 1. Discuss how English law was incorporated into the Sri Lankan legal system by judicial activism citing decisional law where relevant. 2. Explain the Sources of Muslim law and discuss the issues arises that arises in application of this law in Sri Lanka. 3. What is the difference between Dualism and Monism? 4. How do legal traditions and systems influence societal norms, cultural values, and perceptions of justice within a given jurisdiction? 5. What are the key factors that contribute to the evolution and development of legal systems, and how do these factors shape their distinctive characteristics? 6. How does the coexistence of multiple legal systems within a plural legal system in Sri Lanka create challenges in ensuring consistency and coherence in the application of laws across different communities? 7. What are the implications of the historical influence of English law and Roman Dutch law in Sri Lanka's legal system in terms of 25 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit ΙΙ – OSU4404 Session 02: An Introduction to Different Systems of law cultural identity, legal uniformity, and access to justice for its citizens? 26 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications Session 01 Understanding Law and Its’ Applications Contents Introduction 1.1. what is law? 1.2. The meaning and definition of law 1.3. The origin of the law 1.4. The law as a regulator of human social conduct 1.5. The functions of law 1.6. Application of law in business world 1.7. Classification of law 1.8. The difference between Private and Public laws 1.9. The difference between Criminal and Civil law 1.10. The Difference between Substantive and procedural law Introduction The term "Law" refers to a wide range of rules and principles. Law does not operate in a vacuum and has no independent life outside of the human society in which it operates. When it is used in society, it affects every aspect of our lives. It governs our behaviour from the cradle to the grave, sometimes even after the deceased person dies. Therefore, law can be identified as a tool for regulating human behaviour. Having basic legal knowledge is beneficial for everyone in addressing and comprehending a variety of issues ranging from fundamental rights to consumer protection. Legal education raises public awareness of people's responsibilities and rights. It also allows one to reason in a difficult situation. For example, if you were arrested by police by a police officer without having 2 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications committed any crime and were threatened with arrest, you would most likely plead them not to arrest you because you had done nothing wrong. However, if you are aware that you cannot be arrested without a reasonable cause, you will act differently rather than pleading. Therefore, students prefer to study engineering, medicine, art, and management, everyone needed to have a basic understanding of the laws that were relevant to their fields. Thus, after completing your degrees, you will realize that studying law will help you survive in your societies. As a result, the primary objective of this session will be to define the basic characteristics and functions of the law. This session has been drafted in a simple manner that will be comfortable for all non-law students to learn the basics of law. 1.1 What is law? It is not always straightforward to ask, "What is law?" Philosophers have spent countless hours trying to define law since the beginning of recorded legal history. It parallels the story of the blind man and the elephant in some ways. As they touched various sections of the elephant, many blind people described the elephant in terms of what they felt. Even while their point of view was accurate in terms of their emotions, it was not correct overall. Someone who is not a law professional may find the question "what is law?" to be strange. Therefore, it is important to understand the answer to this question because you are just beginning to study the basics of law. Some people associate law with the judiciary, the police, or prisons; others with attorneys and judges; still others with parliamentary legislation, statutes, or other legal enactments. These impressions are all, at least in part, true. Nonetheless, it does not depict the true nature of the law. Human societies are extremely complex societal structures. Such societies would find it impossible to maintain society and they would progressively dissolve without a social order, system of laws, or code of conduct to control them. So, it is correct to state that social order is a necessary component of every community. There are numerous examples that demonstrate how human behaviour has followed a social order since the beginning of human civilization. The law or legal order is one component of the social order and serves the following fundamental purposes: maintaining order, upholding norms, facilitating communication, and advancing social justice. Thus, the legal order regulates the pattern of behaviour among individuals as well as between individuals and society. As a result, human relations can be said to be the subject of legal order. 3 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications Activity 1.1 1. Identify what is law? 2. Why legal order is important for a society? 1.2 The meaning and definition of law Law has different meanings in different places/societies and periods. In Hinduism, law implies "Dharma," while in Islam, it is "Hokum" in Roman, "Jus" in French, "Droit" and so on. The law varies by religion in the sense that personal laws, such as Hindu law, Muslim law, etc. The law is subject to change as society and the government/legislative change through amendments/Acts. In general, the phrase law refers to three things. First, it is used to indicate "legal order". It depicts the regime of modifying interactions and ordering behaviour through the systematic deployment of organized political society's force. Second, the law refers to the entire corpus of legal concepts that exist in a politically ordered society. Third, the term "law" refers to all official control in a politically structured society. This resulted in the actual administration of justice instead of authoritative literature for judicial action guidance. The law in its most restrictive or stringent sense is civil law or the law of the land. There are several definitions of what defines the law. They can be identified by referring to various law schools. According to those schools, there are basically five ways to define law. Natural School definition of law – According to the natural school of thought, all laws are decided by a court of justice. This definition consists of two key components. One is that one must be aware of the goal of law in order to truly comprehend it. Two, one should look to the courts, not the legislative, to understand the true nature of law. Positivistic definition of law – "Law is the aggregate set of regulations made by a man as politically superior, or sovereign to men as political subjects," according to John Austin's concept 4 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications of law. So, according to this definition, law is a system of regulations that all people, regardless of status, must abide by. Inventor of the "pure philosophy of law" is Hans Kelsen. According to Kelsen, law is a "normative science." According to Kelson's definition of law, there are only a few rules that must be followed; the law does not attempt to specify what must take place. Historical definition of law – The term "historical law" was first used by Friedrich Karl von Savigny. The following theories are stated in his definition of law. Law develops organically and unconsciously. Law is not a universal concept. It changes with age and individuals, just like language. Legislation is not only inferior to custom; it also predates it. Because of customs, law should constantly reflect the prevailing consciousness. The collective human consciousness is where law originates. Since legislation is the culmination of the legislative process, the lawyer or jurist is more significant than the legislator. Sociological definition of law- Three key components make up this definition. First, the law serves as a tool for social control. Second, the law exists to advance society's goals. Three, law is coercive by its very essence. Roscoe Pound developed his own definition of law after researching the term. He believed that the law primarily served as a social engineering instrument. where competing political philosophies, economic interests, and ethical standards fought for recognition all the time. Realistic definition of law- The legal system is outlined in terms of judicial procedures in the realist concept of law. Law, according to Oliver Wendell Holmes, "is a declaration of the circumstances in which public force will be applied through courts." According to the definitions of law provided above, laws are used to regulate human behavior in society. It promotes collaboration among society's participants. Law also aids in preventing and resolving potential conflicts of interest. 5 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications Activity 1.2 1 Identify what is the meaning of law? 2 Write down different definitions for law? 3 What is the different between the natural and positivistic definitions on law? 1.3 The Origin of the law The civil code of ancient Egyptian law, which dates back to 3000 BC, was most likely divided into twelve volumes. The first law system, which was composed of casuistic statements (if...then...), was created by the ancient Sumerian king Ur-nammu in the 22nd century BC. It was based on the concept of Ma'at, which was characterized by traditional rhetorical discourse, social equality, and impartiality. King Hammurabi codified and carved Babylonian law into stone in 1960 BC, furthering its development. The manuscript Hammurabi is a collection of copies of Hammurabi's legal code that were left up as Stelae for the public to view across the Babylonian kingdom. Ancient China and India each had unique schools of legal thought and practice and represent distinct legal traditions. Ancient China and India each had unique schools of legal thought and practice and represent distinct legal traditions. When India joined the British Empire, common law replaced Islamic law and the influential Hindu treatises The Arthashastra and the Manusmriti, which date from 400 BC and 100 BCE respectively. Singapore, Hong Kong, Malaysia, and Brunei have all embraced common law. Japan was the first nation to start updating its legal system in accordance with western norms by importing elements of the German Civil Code, with a smaller amount of French law. Similar to how traditional Chinese law gave way to westernization in the dynastic final years, six private law systems largely based on German and Japanese models of law. The development of Islamic law and jurisprudence was one of the main legal systems that took place during the Middle Ages. 6 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications The legal system in Sri Lanka is also complicated and a mixture of laws from South India, Old Ceylon, Rome, England, and Holland. This rich legislative history is a result of the nation's religious and colonial history, which can be traced from 1505 until 1948. The Constitution of Sri Lanka is the supreme law of the country and is subordinated to a collection of codified and uncodified laws from various origins that make up Sri Lanka's legal system. Its legal system is a synthesis of Roman-Dutch law, English law, Kandyan law, Thesavalamai law, and Islamic law. The following sessions will address these laws. 1.4 Law as a regulator of human social conduct When we identify the nature of law it can be assumed that law is a distinct social-political phenomenon with more or less universal features discernible through philosophical analysis. This philosophical inquiry into the nature of law, known as general jurisprudence, is intended to be universal. It assumes that law has certain characteristics and that these characteristics are inherent in law, whenever and wherever it exists. However, even if such universal characteristics of law exist—which is debatable, as we will see later—the reasons for philosophical interest in elucidating them remain unknown. Then there's the intellectual curiosity about comprehending such a complex social phenomenon, which is, after all, one of the most intricate aspects of human culture. Law, on the other hand, is a normative social practice in that it seeks to guide human behaviour by providing reasons for action. One of the main challenges of general jurisprudence is to explain this normative, reason-giving aspect of law. These two areas of legal interest are inextricably linked. Morality, religion, social conventions, etiquette, and other normative domains in our culture guide human behaviour in many ways that are similar to law. As discussed above in the past, two opposing theories have been put forward as to what law is. Natural law theory, which is generally characterized as stating that there is an intrinsic connection between law, morality, and justice, offers the traditional response. Legal positivism, which was founded by John Austin and claimed that law is the command of the sovereign backed by the threat of punishment, offers the contemporary response. Analytical legal positivists, such H.L.A. Hart, Joseph Raza, and Jules Coleman, represent legal positivism in today's disputes over the essence of law. 7 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications 1.5 The Functions of law Laws provide the standards by which we should live if we wish to be a part of society. Humanity has had laws or other means of self-government ever since the dawn of civilisation. Law established guidelines and restrictions for society so that we might live in freedom, provided justice to those who had been harmed, and established that it would shield us from our own government. Most crucially, the law also enables parties to enforce promises in a court of law and offers a process to address disputes arising from such obligations and rights. Activity 1.3 1 Discuss the nature and the functions of law. 1.6 Application of law in Business World. Business law encompasses a wide range of legal principles and regulations that play a vital role in the business world. It serves as the foundation for conducting business transactions, forming contracts, managing employees, protecting intellectual property, ensuring corporate compliance, and navigating international trade. In the business world, the application of law is evident across various areas. Contract law, for instance, is essential for businesses as it facilitates the formation of agreements, sets forth enforceable terms, and provides remedies in case of breach. This allows parties to engage in commercial exchanges with confidence and trust. Employment law plays a crucial role in protecting the rights of employees and establishing fair practices within organizations. It covers aspects such as minimum wage, working hours, workplace safety, anti-discrimination measures, and protection against unfair dismissal. Complying with employment law fosters a harmonious work environment and ensures businesses operate responsibly. Intellectual property law is vital for businesses that rely on innovation, branding, and creative works. It grants legal protection 8 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications for trademarks, patents, copyrights, and trade secrets, safeguarding a company's intangible assets. Adhering to intellectual property laws enables businesses to safeguard their unique creations, prevent infringement, and maintain a competitive advantage. Corporate law governs the establishment, management, and dissolution of corporations. It sets out the legal obligations of directors, shareholders, and officers, ensuring proper corporate governance. Compliance with corporate law fosters transparency, accountability, and investor confidence, which are essential for sustainable business growth. International business law is crucial in a globalized economy. It provides guidance on cross-border transactions, international trade agreements, investment regulations, and dispute resolution mechanisms. Understanding and adhering to international business laws enables businesses to navigate complexities, expand into new markets, and engage in international trade with confidence and also consumer protection laws are paramount in maintaining trust between businesses and their customers. They establish standards for product safety, fair advertising practices, consumer rights, and dispute resolution mechanisms. By complying with consumer protection laws, businesses can build and maintain a positive reputation, foster customer loyalty, and avoid legal disputes. Antitrust and competition laws promote fair competition and prevent anticompetitive practices that harm consumers and stifle market competition. These laws prohibit monopolies, price-fixing, and other practices that undermine a level playing field. Adhering to antitrust and competition laws ensures fair market dynamics and encourages innovation and choice for consumers. Tax law is also an essential aspect of the business world. It establishes the legal framework for businesses to fulfil their tax obligations, maintain accurate financial records, and optimize tax planning strategies. Complying with tax laws ensures businesses operate within the legal boundaries and contribute their fair share to society. Commercial law covers a wide range of legal principles applicable to commercial transactions, including sales of goods, negotiable instruments, secured transactions, and commercial contracts. Understanding and applying commercial law is vital for businesses to navigate day-to-day operations, negotiate contracts, and resolve commercial disputes. When a business is established, the laws govern what kind of business it will be and how it will be structured. This is a significant function that law plays in the business sector. In order to safeguard the interests of the 9 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications business owner and its customers, the law also establishes reasonable expectations for how the business should function. The rule of law protects those who work for a business by not only enabling people to understand what is expected of them in their personal capacities but also by establishing rules for business so that they understand what is expected of them in their dealings and transactions. It establishes guidelines for how to treat your employees, including equal chances, pay scales, working hours, breaks, benefits, and a lengthy list of other rights and privileges. In brief, business rules promote a fair environment where consumers' and business owners' interests can be safeguarded, and we have channels for resolving any conflicts that may develop. If these laws are broken in any way, guidelines for punishment are established. In summary, the importance of law in the business world lies in its ability to provide structure, guidelines, and legal protections for businesses to operate ethically, mitigate risks, protect their interests, and contribute to a fair and transparent marketplace. By understanding and applying the relevant laws, businesses can establish trust, build strong relationships, and thrive in a complex and ever-changing business environment. Activity 1.4 1 As Business students what are the advantages of learning law? 1.7 Classification of law There are many ways to classify the law. They are as follows, Public and Private Criminal and Civil 10 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications Substantive and Procedural 1.8 The difference between Private and public law In any legal system, juristic principles emerge in the framework of rights, and the law as a command governs both the interaction between individuals and the relationship between persons and the government. Contract and obligation law, which is distinct from public law, plays a vital role in shaping socioeconomic situations. The position of the State in the field of Private Law is only as an adjudicator of the rights and duties that exist between citizens. The State is not only the adjudicator in Public Law, but also one of the parties involved. The rights and obligations with which it deals concern itself on the one hand and its people on the other, and this merger of the traits of judge and party in one entity has given rise to the idea that the State (Sovereign) not only has no duties, but also no rights properly so termed. Public law is the branch of law that governs the connection between the State (government/government agencies) and its subjects, as well as the interaction between persons who have a direct impact on society. 'Public law is a form of political jurisprudence that incorporates no transcendental or metaphysical ideas of justice and goodness; it is solely concerned with those precepts of conduct that have evolved through political practice to ensure the maintenance of the public realm as an autonomous entity,' writes Loughlin. Public Law addresses broad socioeconomic issues and may cover the following headings: Constitutional Law, Administrative Law, Criminal Law and Criminal Procedure, Law of the State in its quasi-private personality, Procedure relating to the State in its quasi-private personality, and Judge-made Law. Private law is concerned with private relationships between persons or private relationships between citizens and businesses that are not of public interest. In the case of Private Law, the State's participation is limited to recognizing and enforcing the appropriate law and adjudicating disputes between them through its judicial organs. According to Holland, private law is either substantive and defines people' rights, or it is an adjective denoting the mechanism by which rights are enforced or protected. In a nutshell, Private Law oversees citizens' interactions with one another. Private Law is concerned with Tort Law, Contract Law, Private and Intellectual Property Rights. 11 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications 1.9 The difference between Criminal and Civil law Law can generally be divided into Criminal law and Civil law based on the fundamental differences in the purpose, procedure and the terminology. Criminal law is concerned with forbidding certain forms of wrongful conduct and punishing those who engages in those prohibited act. Civil law deals with private rights and obligations which arise between individuals. This means that the duties owed by one person to another which are established by civil law. The purpose of a civil suit is to remedy the person who has suffered by the breach of the civil law claimed. The role of the state is providing the procedure and the courts necessary to resolve the disputes. 1.10 The difference between Substantive and Procedural Law Substantive law deals with the substance of the law. It means that substantive law sets out the rights and duties governing the people as they act in society. Likewise, while it establishes the rights and duties, it declares the scope and the applicability of different fields of law. Procedural law establishes the rule under which the substantive laws are enforced. If means that procedural law shows the way of obtaining rights or way to discharge the obligation under the substantive law. Recommended reading Weeramantry CG, The Law of Contracts, vol 1 (2nd edn, Stamford Lake (Pvt) Ltd 1999) Cooray LJM, An Introduction to the Legal System of Ceylon (1st edn, Lake House Investments 1972) Hage J and Akkermans B (eds), Introduction to Law (2014) Hart, H.L.A. The Concept of Law. (Oxford University Press 1997). Summary Law or legal system is having a significant impact on society. It is a tool for controlling human behaviour. As a result, everyone in society should have a basic understanding of the laws that pertain to their fields. This session was designed primarily for management students, and therefore it 12 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications covered the fundamentals of law as definition, meaning, functions, classification, and origin. It also addressed the importance of studying law for business students. Learning Outcomes Describe what is law. Identify the meaning, origin, nature, and functions of law. Understand the relationship between law and society. Classify laws based on their meaning, application, and purpose. Identify the difference between Private and Public law. Identify the difference between civil and Criminal law. Identify the difference between Substantial and Procedural law. Review Questions 1. Define the law in your own words. 2. Identify the functions of law. 3. Classify the law based on its meaning, application, and purpose. 4. Identify the difference between Private and public law. 5. What are the main characteristics that distinguish law from other forms of social regulation? Discuss how these characteristics shape the nature and functions of law. 6. Explore the role of law in promoting social change and progress. How can the functions of law be utilized to address societal issues and bring about positive transformations? Provide examples of legal reforms that have contributed to social progress. 7. Discuss the role of law in regulating and governing business activities. How does the legal framework influence the conduct and operations of businesses? Provide examples to support your answer. 8. Discuss the role of law in risk management for businesses. How can legal knowledge assist business students in identifying and mitigating legal risks 13 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit Ι – OSU4404 Session 01: Understanding Law and Its’ Applications associated with contracts, intellectual property, employment, and other business-related areas? 14 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution Session 07 Alternative Dispute Resolution. Contents Introduction 7.1 Alternative dispute resolution Mechanisms. 7.2 Identifying the Advantages and Disadvantages of Alternative dispute settlement mechanisms. 7.3 Facilitation 7.4 Mediation 7.5 Arbitration Introduction All individuals as well as organisations have the right to submit their complaint before a court of law in Sri Lanka. Therefore, the court system of Sri Lanka has the primary authority for settling any disputes. On the other hand, there are alternative dispute settlement mechanisms which oriented towards reaching an agreeable settlement between the parties based on the principles of compromise and achieving the best outcome for both parties. This session provides a brief understanding of alternative dispute settlement mechanisms. This session intends to give an understanding on the different types of dispute settlement mechanisms in our country. This session is aimed at non-law students and as a result, is written in an easy-tounderstand and accessible style. 65 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution 7.1 Alternative dispute Settlement mechanisms Alternative dispute resolution procedures are processes for resolving conflicts that are not available through a court-based litigation process. Litigation is 'adversarial,' which means that two opposed parties argue out their opposing arguments in front of a judge, and the judge's decision is final. Alternative conflict resolution processes, on the other hand, are aimed at obtaining an agreeable settlement between the parties based on compromise principles and getting the best outcome for both sides. The most commonly utilized alternative dispute resolution techniques in Sri Lanka include facilitation, mediation, and arbitration. Activity 7.1 1. What is the meaning of ADS (Alternative dispute settlement)? 2. Identify the methods of ADS in Sri Lanka 7.2 Identifying the Advantages and Disadvantages of alternative dispute settlement mechanisms. Alternative dispute resolution processes, such as arbitration, mediation, and negotiation, have significant advantages and disadvantages when compared to traditional litigation. Here are the key benefits and drawbacks of alternative conflict resolution processes. Advantages- Flexibility and Informality: Alternative dispute resolution techniques allow parties greater procedural and formality flexibility. They enable parties to adjust the process to their individual requirements, which can be very useful in complex or specialised conflicts. Because these techniques are informal, they frequently foster a less hostile and more collaborative environment, enabling greater communication and problem-solving. 66 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution 66 Time and Cost Efficiency: One of the major benefits of alternative conflict resolution systems is their ability to save time and money. Litigation can be a time-consuming and costly process, comprising numerous court hearings, legal procedures, and the accompanying expenditures. Arbitration and mediation, on the other hand, often have shortened procedures that allow for faster resolution. Parties can also save money on court costs and significant legal counsel. Expertise and Neutrality: Many alternative dispute resolution processes allow parties to select an arbitrator, mediator, or expert in the topic relevant to their issue. This allows individuals to benefit from the skills and specialised knowledge of specialists who have dealt with similar issues in the past. Furthermore, mediators and arbitrators are expected to be objective and neutral, resulting in a more equitable dispute settlement procedure. Privacy and Confidentiality: When opposed to court action, alternative dispute resolution procedures frequently provide greater privacy and confidentiality. Confidentiality restrictions can prevent sensitive material from becoming public record, protecting the parties' reputations and commercial interests. This is especially important in cases involving trade secrets, intellectual property, or very sensitive commercial affairs. Disadvantages- Limited Legal Remedies: While alternative dispute settlement mechanisms can be effective in resolving disputes, they may not provide the same range of legal remedies as a court. Courts can issue binding judgements, enforceable orders, and remedies such as injunctions. Parties may choose the predictability and enforcement powers associated with court action over the more flexible outcomes given by alternative procedures in some situations. Lack of Formal Legal Process: For certain parties, the informality that might be favourable in alternative dispute resolution procedures can also be a disadvantage. The lack of strict legal procedures, evidence norms, and official hearings may raise questions about due process and fairness. This is especially important in cases involving fundamental rights or complex legal challenges. Limited Appellate Rights: In court, parties normally have the ability to appeal an unfavourable judgement, giving a higher court the option to review and potentially overturn the decision. However, most alternative conflict resolution procedures have only limited or no appeal rights. This might be detrimental if a party believes that a legal or procedural error occurred during the dispute resolution process. 67 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution Enforcement Issues: While alternative dispute resolution processes frequently provide means for enforcing judgements or settlements, issues may occur when enforcing awards or settlements across various jurisdictions. In contrast to court judgements, which often have broader enforceability, the enforceability of arbitration awards or mediated settlements may be subject to international treaties, domestic legislation, and variable recognition and enforcement practises among countries. As a result, it is critical to recognise that the suitability of alternative dispute resolution procedures is determined by the nature of the disagreement, the parties involved, and their individual aims and preferences. In some circumstances, a mix of alternative dispute resolution approaches and court litigation may be the most effective way to resolve issues. 7.3 Facilitation Facilitation (or group facilitation) is a process that is 'facilitated' by a neutral person to assist a group in working more effectively together to achieve an agreed end. A facilitator is a person who plans and executes the event meeting of the organization to achieve its goal or purpose. A facilitator's function is to assist parties in designing meetings that are compatible with the meeting's goal and are founded on the assumption of equality and fairness. The notion is that no one person should be allowed to dominate a discussion or have special treatment over the other parties. In Sri Lanka, facilitation can be utilised instead of or in conjunction with court processes. The facilitator, who is often a qualified professional, leads the participants through a structured and moderated discussion, urging them to identify their interests, consider potential solutions, and work towards a settlement. The facilitator does not make choices or impose solutions, but rather supports the participants in reaching a mutually accepted conclusion. 7.4 Mediation Mediation is a voluntary conflict resolution method in which the parties appoint a neutral third party (the mediator) to help them negotiate a resolution to their disagreement. The mediator is frequently a specialist in 68 the subject matter of the conflict and has no decision-making authority. They assist the parties in reaching an acceptable agreement and aid to 68 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution guarantee that all parties have an equal opportunity to participate in reaching a resolution. Mediators are appointed by the five-member Mediation Boards Commission, which is chaired by a retired Superior Court Judge. They are chosen from among community members based on demonstrated aptitude. Aptitude is assessed through training courses that teach mediation skills and techniques. The training courses are led by Trainers from the Ministry of Justice, which is in charge of putting the Act into effect. These Trainers attend refresher courses on a regular basis in order to improve their skills. The Ministry places a high value on the training of Mediator Trainers and Mediators. The use of mediation as an alternative dispute resolution method has many benefits. The key benefit is that settlements can be reached swiftly and inexpensively, giving the parties more influence over the decision-making process and assurance that the result will be viable and realistic. In addition, results are mutually acceptable, meaning mediation results have a higher rate of compliance. These agreements can be as detailed and specific as required. even though parties acquire innovative problem-solving techniques that will be useful in future talks. A working relationship can be maintained through mediation, or if preservation is not possible, it can lead to a more peaceful breakup. Economic decisions can also be made rationally and without bias. Community Mediation- Mediation boards (created under the Mediation Boards Act No. 72 of 1998) have the authority to mediate conflicts. Disputes are referred to a mediation board by disputing parties and, in some cases, the District Court, Magistrates Court, or police. The Mediation Boards Act requires that certain situations be referred to mediation before taking legal action in these courts. When it comes to movable or immovable property, or a debt, damage, or demand that does not exceed Rs. 25,000/-, civil disputes must be sent to mediation (unless it gives rise to a cause of action which is exempted).Some few criminal offenses, such as assault or the use of unlawful force, dishonest property theft, the killing or maiming of livestock, trespassing, or 69 Copyright © 2023, The Open University of Sri Lanka (OUSL) Unit V – OSU4404 Session 07: Alternative Dispute Resolution defamation, may also be referred for mediation. The mediation boards handle a significant number of cases involving communal disputes. But more and more debt recovery conflicts are now being referred to mediation by banks and other service providers. Commercial mediation - In accordance with the Commercial Mediation Centre of Sri Lanka Act, No. 44 of 2000, the Commercial Mediation Centre of Sri Lanka (CMCSL) was established to promote mediation and conciliation as a legitimate and effective method of resolving and settling commercial disputes and to carry out the mediation and conciliation of commercial disputes. The Center has established guidelines for the needed mediation procedure as well as the costs associated with using the Centre as a mediator. Mediation of Special category disputes- Dealing primarily with disputes relating to social and economic issues is the Mediation (Special Categories of Disputes) Act No. 21 of 2003. An issue must be gazetted in order for it to fall under the Mediation (Special Categories of Disputes) Act. A Cases may be sent to mediation by the parties, the District Court, or the Labor Tribunal. Employment disputes - In most cases, disputes between employers and employees center on the payment of wage

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