LESSON 1 FUNDAMENTAL PRINCIPLES OF LAW

What is Law?
Although at first glance it may seem simple it is a question that many philosophers have
expended many pages in trying to answer. Some of the philosophers answers, reduced to its
most basic forms are;

Law is a system of rules laid down by a body or person with the power and authority to

make law;
Law is what legislators, judges and lawyers do;
Law is a tool of oppression used by the ruling class to advance its own interests; and
Law is a system of rules grounded on fundamental principles of morality.

Oxford dictionary defines the word law as the system of rules which a particular country or
community recognizes as regulating the actions of its members and which it may enforce by the
imposition of penalties. E.g.: Shooting a person is against the law.
The functions of law
1. Maintenance of public order and safety
La is often regarded as a critical part of the glue that holds the fabric of society together.
Further it protects us from the risks and social disorder. At the same time there is a risk that the
state itself can use the law to legitimate its rules and to suppress dissent by force and it is
therefore, considered important that political and legal authority in the state are kept reasonably
separate for instance, by ensuring that the police and courts are independent of executive
government.
2. The protection of individual rights and liberties
An important function of the law in a democracy is that it should limit the capacity of the state
and other powerful actors to infringe the rights and liberties of citizens. This is often
encapsulated in notions such as rule of law which emphasizes that the law is supreme, everyone
is equal before the law and no one can be convicted in a criminal case or being made liable in a

civil case without being heard. Protection of fundamental rights such as freedom of speech, right
to lawful protest and right to fair trial is important in this regard.

3. The regulation of economic activity

The law plays an important function in facilitating and encouraging national and international
trade in goods and services. It is done by creating legal frameworks and conditions for
facilitating trade and by establishing principles of risk allocation and dispute resolution for when
things go wrong.
4. The regulation of human relationships
The law serves to legitimate and control many aspects of personal relationships. This involves
laws on marriage and civil partnership; setting principles governing the distribution of family
property on relationship dissolution or death; regulating parent child relationships and etc.
5. The regulation of international relations
International relations are governed primarily by a form of law called public international law.
This creates, for instance, for the recognition of states as legal entities, the setting of their
territorial boundaries and the conduct of diplomacy between them. Wars and armed conflicts are
also governed by international legal rules. Further, at the inter-state level international trade is
also increasingly regulated by the World Trade Organization in Geneva and regional trade
systems such as European Union, North American Free Trade Area and Association of South
East Asian Nations.
Law can be classified in different ways. The following are some examples of classifications of
law.
1. Civil law and criminal law
Civil law is concerned with disputes with private individuals. The purpose is to remedy the
wrong which has been suffered by the breach of the civil law claimed. The parties in a civil
action are called the plaintiff and the defendant. The plaintiff is the one who initiates the

legal case and the defendant is the opposite party. Civil actions are initially filed mostly in
District Courts.
E.g.: Contract matters, property matters, family matters
Criminal law is concerned with crimes against the State. The purpose of a criminal action is to
preserve law and order in a particular society by punishing. Usually, it is the State which
prosecutes the victim. Criminal law actions are filed mostly in Magistrates Court.
E.g.: Murder, theft, rape
2. Substantive law and procedural law
Substantive law deals with written statutory laws passed by legislation that governs the behavior
of people. They define crimes and lay down punishment for commitment of such crimes. They
also define our rights and duties as citizens.
E.g.: The definition of murder and its penalties
Procedural law established the rules which make it possible to implement substantive law.
E.g.: How a case should be filed in Court, how a trial is conducted in Court, how an appeal can
be lodged in a Superior Court
3. Public law and private law
Public law deals with issues that affect the relationship between the State and its individuals.
E.g.: Constitutional law, administrative law, international law
Private law exists to assist citizens in disputes that involve private matters.
E.g.: Contract law, family law
4. National law and international law
National law is the law that applies to a particular country and international law is a set of rules
regarded as binding in relations between States.

5. Personal law and territorial law

Personal law applies to specific persons in a particular country.
E.g.: Muslim law
Territorial law applies alike to all persons within a given territory.
E.g.: Thesawalamai law is considered to possess a territorial aspect in it.
Sources of law
Every countrys legal system has its own sources of law. Sources of law are where the law
originates from. In Sri Lanka, the Constitution, statutes, case law, customs, opinion of jurists and
even religion constitutes the sources in the legal system.
1. The Constitution
The Constitution is a set of fundamental ground rules setting out the powers of the different
branches of government (Executive, legislature and judiciary) and how these entities operate and
interrelate. It also set out basic principles such as fundamental freedoms and rights.
The Constitution of 1978 currently operates in Sri Lanka. Although the constitution in Sri Lanka
is a written one, in some countries such as United Kingdom possess an unwritten constitution.
A countrys constitution overrides any other source of law and it is usually difficult to amend.
2. Statutes
Statutes, legislation or enacted law consists of Acts passed by the Parliament and delegated
legislation which includes by-laws, orders, regulations, proclamations passed by an institution or
a person who is authorized by an Act of Parliament.
3. Case law/judicial precedent
In the absence of the constitution and a statute, the court could find the law from a judicial
precedent, namely, case law or judge made law. These are decisions of superior courts i.e.
Supreme Court and Court of Appeal. The judicial precedent becomes a source of law when the

facts of the present case are similar with a case already decided by a superior court; the lower
court is bound to follow the decision of the superior courts.
Under English legal system, the judicial precedent is known as the doctrine of stare decisis and
this was introduced in to Sri Lanka during the British colonial period.

4. Customs
The foundation of every legal system appears to be customs. Kandyan law contains Kandyans
customs, Thesawalamai law contains customs of Tamils and Muslim law contains customs of
Muslim religion. Some customs are already recognized by law but other in order to be
recognized in a court there certain requirements to be met; ancientness, reasonableness, certainty,
continuity in application and the custom being used as a right must be proved.
5. Opinion of jurists
Opinions of writers are a very important source of the Roman law and the systems of law derived
from it such as Roman Dutch law. However, in English law the opinions of writers are not very
significant. In Sri Lanka, in relation to Kandyan law, works of the early writers of Kandyan law
enjoyed some degree of authority until they were supplanted by case law and in some areas by
legislations.
6. Equity
Equity is a universal concept. There are mainly three manifestations of equity;

Equity is the just and reasonable interpretation of law

Principles of law are general by nature and it is possible that the application of law to an
individual case might result in hardship and injustice. In those instances equity seeks to

lessen the hardships in law.

Equity may also be used to fill the gaps in a legal system

Equitable considerations exercise a powerful influence on the development of a legal system but
as the laws become more certain and precisely formulated, there is less room for equity be
regarded as a direct source of law.

7. Religion
Buddhism, Hinduism and Islam have influenced the legal development of Sri Lanka and legal
rules based on these world religions are administered by courts. With reference to Buddhist,
Hindu and Muslim law the courts of Sri Lanka, following English and Indian decisions have laid
down the well-established principle that, the courts will interfere in a dispute involving religious
issues only where civil or property rights are involved and will not interfere in purely religious
matters.