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‘Laws of Sri Lanka – a rare piece of work’

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A review by Professor Shanthi Segarajasingham

It is a pleasure and privilege to review the book, “Laws of Sri Lanka”, authored by Dr. Jayatissa de Costa PC. This is the 31st publication of a legal practitioner cum academic cum researcher cum administrator, a rare combination we ever find in the legal field.

Law is given an important place in society, as it serves as a norm of conduct of people. The knowledge about the laws of a country, gives an account of the evolution of law, which is important when changes take place over the period and its current status.

The value of laws and legal history are worthy of the closest attention. Any law student should understand, what the original state of the law was and how it has been modified to its present stage.

In this regard, the book under the title “Laws of Sri Lanka” authored by President’s Counsel Dr. Jayatissa De Costa is a rare piece of work. The importance of common law has not faded although the statutory law consists of a major portion of the law of the country. There is not much literature available on the legal history that goes to the root of the origin of many areas of laws that prevail in Sri Lanka.

Any researcher searching for Sri Lanka’s laws and legal history will have to refer to many books to get a good account of multiple areas of laws of the country. This is because there is literature available in each area of law separately, but not in any single text. This dearth has now been filled by this publication. The author has done a high calibre of research in this regard.

The beginning of 2021 was critical. There have been intense and restless activities in the legal landscape. Going back more than six centuries and tracing the origin is not an easy task. The author has done it now. Dr. Costa commences with the aspect of multi-ethnicity prevalent in the country that resulted in multiple personal laws developing alongside the common law.

He traces even the first use of the common law, the Roman-Dutch Law (RDL) from the work of Simon Van Leeuwen. The author has discussed the adoption of Roman Law as codified by Justinian and its application in the Western countries after the collapse of the Roman Empire and during the Medieval period.

An analysis of the history of RDL has been carefully done from the ancient sources to its position in modern times and its reception in Sri Lanka. The different phases of RDL, that is RDL as common law, general law and residuary law, are not left out. The author is doubtful as to the future of RDL due to the language incompetency of legal professionals and the legislature that may eliminate it and therefore leave the future in the hands of judges.

The gradual introduction of English Law (EL), its sources and its acceptance in then Ceylon through various statutes have been carefully discussed. The current relevance and application of EL are correctly analysed with the help of various statutes and illustrations from various areas of law. The author opines that English Law holds an equally important position as much as Roman-Dutch Law despite the latter being the common law of the country.

Special laws such as Kandyan law, Thesawalamai and Muslim law are analysed in a chapter each by drawing ancient literature. Works of many, including that of Sir John D’Oyly, Simon Sawer, C.J.R. Le Mesurier, and Dr. F.A Hayley, have been given a place for Kandyan Law. The Holy Quran, Hadith, Ijma and Qiya have been quoted for the analysis of Muslim law. The application of these special laws is clearly analysed for any reader to understand or apprehend.

Religious laws such as Buddhist law and Hindu law are given due place. Primary sources of law have been described by two subdivisions of legal primary sources of law and historical primary sources of law. Customs is rightly given a separate chapter for analysis of its importance, its requirements, and compatibility with statutory law and common law.

Religion is analysed in a separate chapter as it has found its way into law in various ways. Legislation as a source has been subjected to in-depth analysis. Equity is considered a branch of law that developed along with the English Law and the Roman-Dutch Law. An analysis of the laws of a nation cannot be considered complete without the mention of stare decisis which is given a thorough discussion. Law reports, textbooks and journals that form part of legal literature, the court system and the legal profession take place at the tail end of the book.

In addition, the book is rich in case law. He has spent time in the inquiry of all relevant cases and a brief account of appropriate cases has been given in all the chapters. The author has combined to a rare degree the precise dialectic skill of the lawyer with the investigating spirit of the historian by referring to the right case in the right place.

This book is a good source for any law student or a layman who wishes to enhance their knowledge of the laws of Sri Lanka.

 

(Prof. Shanthi Segarajasingham is a Commercial Law Professor at the Commercial Law Department, Law Faculty, Colombo University)

 

Wednesday, April 27, 2022 – 01:00











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