Sociological Jurisprudence

LAW MANTRATHINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

“SOCIOLOGICAL JURISPRUDENCE” Introduction Aim of social engineering is to build an efficient structure of society as possible which requires the satisfaction of the maximum wants with the minimum of friction and waste

The phrase “sociological jurisprudence” is often addressed with the work of the American jurist, Roscoe Pound.1 In 1912 he set down a six point programme for sociological jurists.2 This discussion is concentrating on three sociological interests and how the judiciary in Sri Lanka gives legal effect to these interests by the concept Roscoe Pound introduced the doctrine of social engineering. He defined the legal order by reference to the end of law. 3 It is important to understand his thoughts behind this concept since it provides an interesting platform for us to think more widely about social engineering. He writes, “for the purpose of understanding the law of today, I am content with a picture of satisfying as much of the whole body of human wants as we many with the least sacrifice. I am content to think of law as a social institution to satisfy social wants – the claims and demands involved in the existence of civilized society by giving effect to as much as we may with the least sacrifice, so far as such wants may be 1

1870-1964 J. W. Harris, Legal Philosophies, Second edition, Oxford University Press, 2004, pp 251; “First, study of the actual effects of legal institutions and legal doctrines. Second, sociological study in preparation for legislation – particularly, the effects of comparative legislation. Third, study of the means making of making legal rules effective: ‘the life of the law is in its enforcement.’ Fourth, A ‘sociological legal history’, which could consider what effects legal doctrines, has in the past. Fifth, advocacy of reasonable and just solutions of individual cases, too often sacrificed in the name of certainty. Sixth, making effort more effective in achievement the purpose of law”. 3 K. Makkar, ‘Law as a tool for Social Engineering in India’, http://www.manupatra.com/roundup/331/Articles/law%20as%20tool.pdf, pp 2, accessed on 10/04/2013, “If the legal order may well be thought of as a task or as a great series of tasks of social engineering; as an elimination, accessed on n of friction and precluding of waste, so far as possible, in the satisfaction of infinite human desires out of a relatively stor of the material good of existence”. 2

satisfied or such claims given effect by an ordering of human conduct through politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control, a more embracing and more effective securing of social interests, a continually more complete and effective elimination of waste and producing of friction in human enjoyment of the goods of existence – in short a continually more efficacious social engineering”.4 With Roscoe Pound’s explanation it shows that as a human when living in the society there is a conflict always between the individual and the society, which means there can be a conflict of the majority needs/wants with the minority needs/wants. At some points this could be within an Individual and State too. To elaborate on the concept – “Social Engineering” he introduced, this discussion will address three such sociological interests in Sri Lanka giving relevant examples where the Sri Lankan judiciary has reflected on those interests. They are as follows, under the Consumer Affairs Authority Act5 how the manufacture’s, seller’s and consumer’s rights should be balanced with State’s involvement when necessary, how the interests of the land owner and the rights of the state/public at large should be addressed when private land taken into acquisition and how the homosexuality rights and rights of the society should be balanced. 

Under the Consumer Affairs Authority Act6 how the manufacture’s, seller’s and consumer’s rights should be balanced with State’s involvement when necessary. Under this Statute regarding essential good/services there is a statutory right for the manufactures, sellers and even consumers. In this statute, Section 18 (1)7 states where the

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K. Makkar, ‘Law as a tool for Social Engineering in India’, http://www.manupatra.com/roundup/331/Articles/law%20as%20tool.pdf, pp 2, accessed on 10/04/2013; refereeing to Pound, Roscoe, An Introduction to the Philosophy of Law, Transaction Publishers, 1999, pp 20 5 Consumer Affairs Authority Act No. 09 of 2003 6 Consumer Affairs Authority Act No. 09 of 2003 7 18 (1) Where the Minister is of opinion that any goods or any service is essential to the life of the community or part thereof, the Minister in consultation with the Authority may by Order published in the Gazette prescribe such goods or such service as specified goods or specified service as the case may be.

minister is in the opinion that any goods/services to the life, Minister in consultation with the authority can prescribe those as specified goods/services. Due to this a manufacturing company cannot increase the price of those goods/services without authority’s permission as mentioned in Section 18 (2).8 If the authority reacts towards those requests that the manufactures submit to get permission unnecessarily or been bias, it can make many issues to the society at large because expenditure of every individual can increase or it could be a disadvantage to the manufactures if they cannot increase their product’s price and to do the business with a loss that will not be the best. Therefore this can cause unnecessary problems where the company decides to quit from the local market and establish thoroughly that one decision can make a huge change in the entire society as Roscoe Pound has stated, “…satisfying of human wants or claims or desires through social control….”9 is important when it comes to competing interests. In an open economy, consumer is the focal point and therefore it is very important to safe guard the consumer. Due to the commercialized, competitive business world we are living today, the manufactures need to be controlled by the participation of the state in some instances. The next challenge is that though the State could make an influence, the price of the product will be decided according to the demand and supply of any product in the market including essential goods/services. To reflect on how the Sri Lankan courts have addressed on an issue of manufacture’s rights to present their situation, state’s right to be reasonable and consumer’s right to enjoy the products should be looked in a sociological aspect since those are competing interests in the society, the discussion will elaborate with a court of appeal decision given in the case Nestle Lanka Ltd v Consumer Affairs Authority10. According to Section 18 of the Act in Special Gazette number issued as 1302/24 named full cream milk powder as an essential good. Nestle Lanka Company has produced documents of

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18 (2) No manufacturer or trader shall increase the retail or wholesale price of any goods or any service specified under subsection (1), except with the prior written approval of the Authority. 9 K. Makkar, ‘Law as a tool for Social Engineering in India’, http://www.manupatra.com/roundup/331/Articles/law%20as%20tool.pdf, pp 2, accessed on 10/04/2013; refereeing to Pound, Roscoe, An Introduction to the Philosophy of Law, Transaction Publishers, 1999, pp 20 10 Nestle Lanka c Consumer Affairs Authority (2005) 2 Sri LR 138

the company incorporation with detailed reports of their profit/loss statements requesting the authority to allow them to increase the price of their full cream milk powder product. This request has been rejected by the authority without giving any reasons. Though in the case it is not directly mentioned, in my opinion looking at a sociological jurisprudence view since the request has been rejected by the authority, the company could have even removed their product from the market and engaged in some other product or would have moved to the international market, because in this economy status it is difficult to conduct a business with a loss. If a situation such as above arises it is not only going to be unfair for the manufactures but also for the consumer who has a right and an interest to consume particular product in the market and that right cannot be violated due to an unreasonable/bias decision11. Therefore been a governmental institution, Consumer Affairs Authority or any other institution which can make an impact in the society need to act more responsibly towards these issues since even by rejecting a request without giving reasons can be amount to a violation of natural justice principles12. Therefore it is important to see that there can be a conflict between increasing price level of the goods/service to the consumers with the influence of the State and also by the other side there is a conflict with the increasing price level of the product is important to the manufacture due to the present financial crisis it is difficult to run a business with a loss, therefore a state authority not giving permission for manufactures can make the company shift into another market/industry can violate many rights of the consumers where the judiciary also have addressed this issue in the above case mentioned. In the Universal Declaration of Human Rights it has mentioned that everyone has the right to a standard of living in Article 25 which explains further the international recognition.13 Therefore it is important to understand those

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Ibid, “No inquiry has been held, reasons have not been given for the refusal – the impugned decision is illegal and invalid”. 12 Shell Gas Lanka Ltd v Consumer Affairs Authority & Others [2005] 3 Sri LR 262; Karunadasa & Others v Unique Gemstone Ltd [1997] 1Sri LR 256 13 “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security

competing interests in the society and address those sociological issues in the best way it can to as Roscoe Pound also stated that “….satisfying of human wants or claims or desires through social control….”14 should take place since in this incident the consumer holds rights such as the right to satisfaction of basic needs, the right to safety and even the right to choose what he needs. 

Interests of the land owner and the rights of the State/Public at large should be addressed when private land taken into acquisition. In present land acquisition of private lands are conducted according to the Land Acquisition Act No. 9 of 1950 with amendments.15 The conflict of acquisition of private lands is within the individual who has a right to enjoy his own land and with the need of development for the public benefit. The value of a land for an individual will reveal around many aspects such as the effort he/she has put to purchase the land, memories of the living surrounding together with their personal ties with neighbors especially if the property has a traditional value for it. Therefore when the acquisition of the land happens they are not losing only the land but many other things inter connected to the property too. Apart from these sometimes the compensation given is not enough to rebuild their living hood. It is not easy to start a new life at once if there is a need of change the schools of their children, if their jobs are going to be affected and also if they were having their own agricultural income earning method they have to find another way of earning their monthly income too and because of all those hassle individuals have to face they are against the fact that state acquiring private land. In the Land Commission Report in 1981 it has stated about right of the State to acquire land. “The right of a State to expropriate private land: whether such right is derived from the theory of eminent domain or from statute is a right to take private property for public purposes. The in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”. 14 K. Makkar, ‘Law as a tool for Social Engineering in India’, http://www.manupatra.com/roundup/331/Articles/law%20as%20tool.pdf, pp 2, accessed on 10/04/2013; refereeing to Pound, Roscoe, An Introduction to the Philosophy of Law, Transaction Publishers, 1999, pp 20 15 Amended by No 39 of 1954, No 22 of 1955, No 60 of 1961, No 5 if 1994, No 28 of 1964, No 8 of 1979, No 13 of 1986

right to expropriate implies first of all the existence of a public purposes which can be executed or carried out on a land and secondly that the land such purpose will be selected with due regard to its suitability for public purposes, the convenience of the public and free extraneous considerations”.16 It is important that a welfare state should be sensitive towards the needs of the people too. When projects such as housing schemes, road development, new airport constructions been brought up it is for the benefit of the public at large and to fulfill their needs individual’s private land has to be acquired when necessary. This conflict between the Individual Interest v Public Interest also has been identified by Roscoe Pound17. When there is a development activity there has to be a public use too for that development and if that is satisfied only the land acquisition will take place. In the Land Acquisition Act by Section 5 (2) has defined what is a public use, but it has not stated an exact definition for it. According to the above Section, it is the minister’s decision which will be important since it cannot be questioned in courts. With the amendments introduced to the Interpretation Ordinance18 in 1978 by Sections 22, 23 and 24 it has made it lenient. In a case it has been held that Minister’s decision cannot be questioned in courts.19 In the case of Gunasekara v Minister of Lands20 the decision was that it was a policy decision of the Minister to acquire and that Section 5 (2) ousted the court’s jurisdiction even the Minister’s decision was wrong”. The concept of “give and take principle” also should be taken into consideration where it explains a deep analysis of this sociological conflict of this interest. Because land is a limited resource and from that it needs to satisfy both individual’s needs and public needs. Development projects coming up will not only create problems for the individual but there is also another side to this, where many benefits could be created. Expansion of the job market, level of living

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K. Herath, Law relating to State Lands, Vijaya Publication, 1st edition, 2010, pp 131 “He conceived law as a ‘social engineering’ whose main task is to accelerate the process of social ordering by making all efforts to avoid conflicts of interests of individuals in the society. Pound classifies the various interests which are to be protected by the law under three heads – private interest, Public interest and Social interest”, Dr. Avatar Singh; Dr. Harpreet Kaur, Introduction to Jurisprudence, Third edition, LexisNexis, 2010, pp 48 18 No 21 of 1901 19 Mendis Vs Jayaratne , minister of Agriculture , Lands and Forestry (1997) 2Sri LR 215 CLA 20 Gunasekara Vs Minister of Lands 65 NLR 199 17

standards been lift up, time saving through developed transportation as such are few benefits where the public at large can enjoy while the individual who has to face many issues too could enjoy. But there needs to be a set of rules where if the State has not made proper use of the particular land that it is not fair to over ride the individual’s right. 21 In the case of Heather Mundy22 it was stated that till the compensation had been paid by the State, the State should not acquire the land from the individual, therefore it shows how important this conflict is and it has to be very closely monitored to let neither the individual nor the public to suffer by any circumstance. In the Water’s Edge case 23 it was also held that State officials should act within their powers and not to over ride their limits. Therefore those sociological conflicts which arise with in different interest are not easy to solve at once, because there are many issues connected to each other and it goes like a circle which is inter connected. Since the small issue that arises from an individual’s land acquiring it connects to the public at large and then it has sub layers of how both parities rights will be connected with the right of the state to fulfill both their needs, therefore as the distinguished jurist Roscoe Pound has stated the aim of social engineering is to build as efficient structure of society as possible which requires the

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Amarasinghe and others Vs Attorey General (1993) 1 SLR 376 - Judge Fernando stated - “The available material does not in any way indicate that the decision to build the expressway that it was unreasonable ; but on the contrary and urgent ‘ and there is nothing whatever to rejection of the alternative options, was unreasonable.” Bandula Vs Almeda and Others (1995) 1SLR 309 - Justice Wadugodapitiye ; “ I therefore hold that was no urban development project inexistence , and that therefore the Respondents have failed to satisfy an essential ingredient , required by sec 2 to be satisfied prior to the making of the impugened order. If there was no project , than it follows that the president had no material before him to enable him to arrive at his “opinion “ before making the order.How then did the president arrive at his “opinion” can such order made In vacuo , so to speak be allowed to stand? I think not”. Manel Fernando Vs D.M. Jayaratne (2000) 1SLR 112 ; “ The Notice under section 2 was invalid and the provisionsof section4 A were inapplicable for the reason that ; (a) A Sec. 2 Notice must state the public purpose although exceptions may perhaps be implied in regard to purpose involving National Security and the like. Per Fernando J , In my view the scheme of the act requires a disclosure of the public purpose , and its objects can not be fully achieved without such disclosure. (b) The Sec. 2 Notice sent to the 2nd petitioner was in Sinhala only despite the provisions of sec. 2 (2) and the fact that he was a Tamil. Sec. 2(2) require the Notice to be in the Sinhala , Tamil and English Languages. That amounts to non compliance with a material statutory provision.” (c) Public Trustee Vs Rajaratram 75 NLR 391 ; “That the claimant was entitle to be granted relief.In such a case the prior sale price of a similar land in the vicinity should be taken into account.” 22 Mundy v. Central Environmental Authority and others (SC Appeal 58/2003) (decided 20 January 2004) 23 Sugathapala Mendis and Others v. Ms. Chandrika Bandaranayake Kumatunge and 20 Other Respondents, SC (FR) Application 352/2007

satisfaction of the maximum wants with the minimum of friction and waste and as I have discussed in this report it involves the balancing of competing interests. 

Balancing of Homosexuality Rights and Rights of the Society. The mechanism of institutionalization determined the distinctive features of the perception and treatment of homosexuality throughout Western history and gave rise to a creation of “homosexuality” and “heterosexuality” as opposed sexualities with contrasting moral and social content one being the mirror image of the other”.24 Homosexuality is illegal in Sri Lanka, under Section 36525 and Section 365 A26 of the Penal Code and punishable by a jail term up to 10 years. “The laws are vague and ambiguous leaving interpretation of the law to the police and to the judges hearing such cases. It is interesting to note however that no one has been convicted under these laws in the past 50 years. Also interesting to note that the laws apply to both homosexual and heterosexual sex when it interprets “any act of gross indecency” not only homosexuals are labeled criminals under Section 365 and 365 A of the Penal Code of Sri Lanka”.27 In Sri Lanka homosexuality is discussed not only as an illegal activity but as a conflict with religions, social and cultural values too Sri Lanka been a multi ethnic and multi cultural society. The majority believes that homosexuality should be discriminated for the benefit of the society but the other side of this is, that it violates many rights of the homosexual people including right to life. Therefore it is important to discuss about the present position of homosexuality in Sri Lanka and the importance of rights of those homosexual people. Homosexuality was disregarded many years back as a disease. But today “on the basis of 24

D. Bauer, ‘Homosexuality within the Context of Social Institutionalization and Moral Sense’, pp 68, http://www.ethical-perspectives.be/viewpic.php?TABLE=EP&ID=964 , accessed on 12/04/2013 25 Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section and amended in 2006 as "injuries" includes psychological or mental trauma.” 26 Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of an offence, and shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both, and shall also be liable to be punished with whipping. 27 ‘Petitioning the Government of Sri Lanka, Concerned Citizens against 365 & 365 A’, http://www.change.org/petitions/concerned-citizens-against-365-365a , accessed on 10/02/2013

emerging scientific evidence and encouraged by the social movement for ending sexual orientation discrimination, the Americans Psychological Association and other professional organizations have affirmed that homosexuality per se is not a mental disorder and rejected the stigma of mental illness that the medical and mental health professions has previously placed on sexual minorities”.28 Therefore it could be taken as a mislead statement of the Sri Lankan society the assumption of homosexuality as a disease. Reason behind many countries legalizing homosexuality is because of the increasing number of homosexuals every year been reported. Even in Sri Lanka it shows an increase of them 29 but still there has been no change of the law till now. Due to this even when they want to attend to their medical services they find themselves embarrassed and if they tend to ignore those it amounts even for violation their right to have comfort and health facilities. These could lead even for an increasing level of infections such as HIV AIDS. As Dr. Weerasinghe pointed out “that 95% of HIV infections set due to homosexual relationships”,30 but he has stated that homosexuality is just one way HIV AIDS can get infected and there are many other ways such as prostitution and drug addicts who inject tem selves that carry this disease. It is important to note by this analysis that even though you are having a normal sexual inter course or been a homosexual you need to be safe with your actions. The global understanding about homosexuality has still not reach the Sri Lankan society. Even though you can produce a child or not the satisfaction of sexuality should be equally given to satisfy their needs. Because in deep analysis if homosexuals can be treated unequally then there are many couples who do not have the fertility, not been able to produce children also should be discriminated, people who do not like to have sexual relationships and been single also need to be treated un equally and not only homosexuals, but in the bigger picture it is impractical to do it and if that happens there will be a huge clash in the society. 28

http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf;In , accessed on 15/04/2013 “It is estimated that there are around 35,000 homosexuals (gay persons) in Sri Lanka at present”; Goonathilaka N, ‘MSM to lead HIV/AIDS in Sri Lanka’, http://www.sundayobserver.lk/2011/11/27/fea06.asp , accessed on 12/03/2013 30 ibid 29

The discrimination that is there for homosexuals affects the society in long term. Because once they get married to an opposite sex partner and though they will produce a child to the society due to the natural reactions of his/her body that person can tend to have another relationship from the same sex and when these reveal out it will affect the family and in the long term on the child’s future too. Therefore according to the famous jurist Roscoe Pound he has stated “…..I am content to think of law as a social institution to satisfy social wants – the claims and demands involved in the existence of civilized society by giving effect to as much as we may with the least sacrifice….”31. Therefore it is very important that the judiciary address those in a sociological jurisprudential aspect. In Sri Lanka though there has been no court cases yet, there is an attempt to file a petition by the Equal Ground rights group to repeal Sri Lanka’s colonial laws that are used to criminalize homosexual sex. Equal Ground say in the letter to the Government: “the criminalization of same sex relationships and the resultant cultural and social stigmas attached to homosexuality and transgender means that the Lesbian, Gay, Bisexual and Transgender (LGBT) community of Sri Lanka faces all forms of discrimination, marginalization and violence resulting in mental health issues, low self esteem and internalized homophobia”32. India has repealed this corresponding section of the Criminal Code in 2009 too. In the Netherlands, Belgium, five Canadian provinces and a USA state same sex couples are allowed to marry. “In Spain, a proposal on the legislation of gay marriage and the adoption of children by gay couples has passed through the parliament (October 1st 2004)”33. Very recently New Zealand passed the law to legalize same sex marriages, been the first Asia-

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K. Makkar, ‘Law as a tool for Social Engineering in India’, http://www.manupatra.com/roundup/331/Articles/law%20as%20tool.pdf, pp 2, accessed on 10/04/2013; refereeing to Pound, Roscoe, An Introduction to the Philosophy of Law, Transaction Publishers, 1999, pp 20 32 Anna Leach, ‘Petition to Repeal Sri Lankan’s anti Gay Laws’, 15th June 2012, http://www.gaystarnews.com/article/petition-repeal-sri-lanka%E2%80%99s-anti-gay-laws150612 , accessed on 20/04/2013 33 “In Belgium, Netherlands, France, South Africe, Denmark, Finland, Ireland, Luxemburg, and other countries, discrimination on the grounds of sexual orientation is legally prohibited. In Belgium, legislative initiatives on (full) adoption by gay couples were taken, and in the Netherlands, Denmark, Iceland, and Sweden, particular regulations on adoption already exist”; D. Bauer, ‘Homosexuality within the Context of Social Institutionalization and Moral Sense’, pp 63-64, http://www.ethical-perspectives.be/viewpic.php?TABLE=EP&ID=964 , accessed on 12/04/2013

Pacific Region country to do this.34 Therefore it shows us how important this change is needed to the society looking at a sociological angle. It is also interesting to note that in USA most prominent changes were found “in the media discourse indicate a shift from discussion of religious principles, morality, and procreation to a discussion of the institution of marriage, welfare of children, and conversations around judicial activism”35. After conducting a thorough analysis, USA believes that “…the language of judicial activism strengthened as same-sex marriage proponents gained victories in the courts. However, the claim that same-sex marriage has only occurred because of ‘activist judges’ will probably wane in coming years, as the issue of same-sex marriage increasingly comes before voters as well as legislators”36. Therefore it is a good sign that Sri Lanka is coming up with a petition recently37 and with that it highlights that the judiciary needs to be more active in this issue because it is important to balance competing interests in the society for the betterment of all citizens. Conclusion Throughout the civilization human beings have always been unequal, having a leader and a follower, important and less important choices, criticism and discrimination and so on and so forth. The sociological school came up in a time where it was needed to achieve progress in all spheres of human activity. In my opinion the law must always be subordinate to social purpose, should be secured and enforced only as a means to serve society. I have analyzed three such sociological interests which are looking forward for a balancing among competing interests. 34

Perry N. ‘New Zealand Gay Marriage: Lawmakers approve marriage Equality Bill’ 17/04/2013, http://www.huffingtonpost.com/2013/04/17/new-zealand-gay-marriage_n_3098762.html , accessed on 19/04/2013 35 Margaret Gram Crehan & Katherine Rickenbaker, ‘The Changing Debate on Same-Sex Marriage in the United States’, http://quod.lib.umich.edu/cgi/t/text/textidx?cc=mfsfront;c=mfs;c=mfsfront;idno=ark5583.0020.001;rgn=main;vie w=text;xc=1;g=mfsg , accessed on 01/05/2013 36 Margaret Gram Crehan & Katherine Rickenbaker, ‘The Changing Debate on Same-Sex Marriage in the United States’, http://quod.lib.umich.edu/cgi/t/text/textidx?cc=mfsfront;c=mfs;c=mfsfront;idno=ark5583.0020.001;rgn=main;view=text;xc=1;g=mfsg , accessed on 01/05/2013 37 Anna Leach, ‘Petition to Repeal Sri Lankan’s anti Gay Laws’, 15th June 2012, http://www.gaystarnews.com/article/petition-repeal-sri-lanka%E2%80%99s-anti-gay-laws150612 , accessed on 20/04/2013

Some issues are not easy to change over a night or for the judiciary to reflect all of a sudden and change the society’s view, but I believe in that if could start today, definitely the success will be reached after some time in the Sri Lankan society to balance those competing interests in the modern world today. Thoughts of the sociological school as I have analyzed in this discussion will surely reconfirm the need that we as Sri Lankans are looking forward to see along with the support of the judiciary.

By:- Jayani De Silva LL.B. (Hons) (Colombo)