2 December, 2021

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One Country One Law: Jurisprudential Analysis To Retain All Personal Laws

By Mass L. Usuf

Mass Usuf

The objective of this column is to stress on the necessity for Sri Lanka to comprehend the legal diversities in vogue globally under the genre of contemporary jurisprudence. The rapid evolution of human behavioural patterns in the socio-political-economic landscapes geographically, both at state and global levels, beg this diversity. In the Journal of Law & Society Review, American anthropologist Sally Engle Merry writes, “The intellectual odyssey of the concept of legal pluralism moves from the discovery of indigenous forms of law … to debates concerning the pluralistic qualities of law under advanced capitalism. Legal pluralism is a central theme in the reconceptualization of the law/society relations.”

In Sri Lanka, diverse legal systems namely, Kandyan law, Thesavalamai and Muslim law have been in existence from ancient times. This richness is something that has to be protected and valued as part of this country’s legal heritage. Today, the debate is on the inevitability of embracing plural legal systems.

Uniformity Versus Pluralism

Twenty-first century Jurists are engaged in widening the scope of legal concepts on the face of this reality. Commenting on the frozen mindset of the lawyers, Senior research scholars say, “It seems that, rather than recognising plurality of law, lawyers have sought to define what is, and what is not, within the ‘law’. Such efforts have led to defining away the plurality of law, pulling analysis towards unification and uniformity.” (Sack & Aleck 1992: xviii). Here in Sri Lanka, unfortunately, this is exactly what is going to happen. Moving away from pluralism towards uniformity!! Either because of the lack of Juristic minds or stultification of its growth. In the absence of such, the ignorant politicians revel at the talk about One Country One law – a jurisprudentially backward model?

Historically, the Colonisers were known to reshape the social life of the country they colonised by the introduction of what was perceived as civilised laws and abolishing indigenous ancient practices. This was evident, in the Kandyan kingdom when all forms of barbaric penalties were abolished by the British. The King’s justice was such that if the criminal escapes, the King would not hesitate to put to death even the wife and children of that criminal. Other forms of punishments included the tearing of limbs from the body by elephants, slow penetration of spike into the body through the anus etc. The arrival of the British would have been a gift for those subjected to anarchy and terror. They were freed from the scourges of tyranny and fear that gripped their lives.
Muslim Law Under Colonialists It is worthy of note that none of the colonisers ever interfered with the Muslim worship and legal practices. It has been recorded by historians that when the Portuguese arrived in 1505, the Muslims living in “Ceylan” were practising their religion and dealt with issues using Islamic jurisprudence. The Dutch who had earlier occupied the Indonesian archipelago saw the Muslims resident there practising Islam. When the Dutch arrived in Ceylon, they found Muslims of Ceylon were following the same worship and practise of Muslim religious laws. This encouraged them to introduce portions of the Statutes of Batavia into Sri Lanka in 1776. When the British invaded the island, they respected the personal laws practised by the Muslims. They codified it as the Mohamedan Code of 1806. The laws were never changed nor interfered with by the Portuguese, Dutch and the Britishers as they were already well aware of the richness of Islamic jurisprudence. These countries themselves had benefited by it. In the same manner, Thesavalamai and Kandyan law too, have lived through all these conquests and the vagaries of time.

Legal Pluralism And Ignorance

The question as to how far does the society shape the law and, in turn, how far does law shape the society indicates the nexus between these two institutions in any discussion on legal pluralism. The purpose of law, as we all know, is to regulate social relations. Social relations of community can be analysed in terms of actions which link and bond people.

Max Weber’s sociology typifies four major categories of social actions. Two types of social action relevant to this exposition are Rational action and Traditional action. Rational action may be value-oriented (wertrational).

Action that is determined by a conscious belief in the value for its own sake of some ethical, aesthetic, religious or other forms of behaviour, independently of its prospects for success. Those engaging in Traditional action seek the means of action which are fixed by custom and tradition based on the community’s belief or values founded on shared fundamental beliefs for example, religious beliefs.

The use of the Muslim personal laws and other personal laws have been the
living legal experience of a section of the inhabitants in this country. To straitjacket and assimilate this living experience within the context of a dominant legal system would demand a huge socio-religious transformation. A transformation which would be detested. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law, as a social institution that relates to the larger political and social context in which it exists. (Shiner, “Philosophy of Law”). Pluralism has been seen as treating law and justice as fundamental institutions of the basic structure of society mediating “between political and economic interests, between culture and the normative order of society, establishing and maintaining interdependence, and constituting themselves as sources of consensus, coercion and social control”. (Scuro 2010: 64)

Law And Other Disciplines

Further, in the present approach to legal pluralism, there is a serious inquiry to legitimately incorporate the non-positive sources (e.g., morality, custom, community attitudes) in the exercise of adjudication. By this the law has been impacted by several social disciplines related to this approach. A somewhat similar argument may be based on the Dualist approach, rather than, the Monist in the field of international law. The Monist approach, which is attributed to Hans Kelson, positions itself by expecting all nations to bind themselves under that umbrella of natural law leaving aside their individual State decisions. In this method, there arises a conflict between international law and the primacy of Municipal law. The latter being sovereign law. The practical solution adopted by many States to overcome this conflict is to adopt a blend of both Monism and Dualism in its approach to international law. The strategic objective of international law was to advance the rule of law between nations in the international sphere.

The Monist view is a broad analogy of our local One country one Law idea. As far as establishing the rule of law is concerned in Sri Lanka, there is no hindrance from the Thesavalamai, Muslim Personal law or the Kandyan law.

Why cannot Sri Lanka live, as it had been for several centuries, with a blend of these personal laws is an intriguing question?

Roger Cotterrell, Professor of Legal Theory advances the thought that ‘community’ should be a central concept of contemporary legal theory. He writes, “The philosophers have failed to study law as a diverse, varied social and historical experience; … legal ideas and practices do not exist in abstraction but are encountered, interpreted, understood .. by diverse emotional attachments, traditions, beliefs and values. (Community As A Legal Concept).

Society Of The Highest Order

As much as the Muslim law quintessentially binds the ethno-social and religio-cultural imperatives of the Muslim social psyche so does the laws relating to those subjected to Thesavalamai and Kandyan law. To undermine their foundation by diluting its authority, scope and application will have negative consequences of seismic proportion.

“What is a society? Society is the sum total of the human associations that have mutual relations with one another. Society of the highest order is “a society consisting of the civilized nations of the earth; within this society are various narrower societies, e.g., a society of the Christian and of the Mohammedan nations, and lastly societies that comprise only the individual civilized nations.” (Ehrlich’s sociological theory of law.).

The politically motivated One Country One Law humiliates this “Society of Highest Order” which, as civilised nations, accept minority special laws.

Through this parochialism, the supporters of one country one law wants to transform society into the old Austinian sovereignty – “A determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society…”. (Austin – Lectures on Jurisprudence). Thereby, degrading and departing from the modern trend of legal pluralism and legal sociology. Like Ehrlich propounded, the facts of law existed before any positive law arose. These facts of the law are social structures to be found wherever human beings are living together. Thus: “The family is older than the order of the family; Possession antecedes ownership; There were contracts before there was a law of contracts.” (Ehrlich’s sociological theory of law).

With special reference to the Muslim Marriage and Divorce Act, it is a special law. It is a manifestation of a collective social consciousness of a community of people having intrinsic religious relevance. A law that has been inherited by intergenerational transmission over several centuries.

There is a growing recognition of legal pluralism as a global reality. “Legal pluralism exists everywhere and comparative research therefore, needs to assess degrees of legal pluralism rather than questioning its existence.’ (Woodman (199:54). The way forward is therefore, for a plural and diverse legal system and not the regressive one country one law. The country must move forward and not backward.

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Latest comments

  • 4
    5

    All personal laws must be scraped.

    Developed countries do not have different laws for different people.

    One law for all.

    (Rajafucksas are not going to do it. They have turned it into a joke.)

    If SL cannot have one law, the island must be divided into 3 mono ethnic nations and people must be relocated. Then each of those 3 independent nations can have their own law.

    • 2
      5

      GATAM,
      Your proposal to divide the country to solve the ethnic problem will lead to a worse situation with border conflicts. Indigenous Sinhalayo had enough problems. Sri Lanka has a ‘Saloon Door’. Those who are not happy are free to say Good Bye to Sri Lanka/Sinhale.

      • 5
        3

        EE,

        Every country has borders. Only a very few have border wars.

        For instance how many people have died in ALL border wars of India? 20,000?
        How many have died from INTERNAL wars of SL? 200,000.

        And India has 60 times more people than SL!

        So the border wars argument is foolish.

  • 7
    2

    For the “one country one law” to be operational then the Constitution cannot mention the name of any religion or race in the text. The only mention should be “Sri Lankan”.

    • 0
      1

      Dear Buddhist1,
      .
      Haven’t you noticed that some of us, who grew up calling this country “Lankawa” and Ceylon have begun to call our beautiful island, “Lanka” in English.
      .
      My reasoning is that we are so wonderfully special in so many ways that it was quite unnecessary for us to force the world to add “Sri” (meaning “blessed”) in front. Bespeaks an inferiority complesx which we are unable to shake off.

  • 7
    2

    When something goes wrong in the circus, they send in the clowns to distract the audience. Well, something has gone very wrong with this circus, as the clowns seem to be everywhere!
    (From WhatsApp)

  • 4
    7

    “This was evident, in the Kandyan kingdom when all forms of barbaric penalties were abolished by the British.”
    —-
    Sinhale had laws enacted by Kings that existed for thousands of years. While abolishing some harsh punishments meant for traitors, colonial rulers threw away all the good things also. But they were keen to retain laws such as Kandyan Law, Thesawalamei and Muslim law. There is not much richness in these laws.

  • 7
    1

    A man should not seek substitutes if his wife is sick and bedridden, or is rendered infertile and unable to have children. If a man takes another wife under these circumstances, this facility should be open to women also. However, no law should allow a blanket facility where men can take multiple wives. Men do go to prostitutes or start illicit affairs for sex when their partners don’t seem enough for their needs. But marriage is not only about sex, so not everyone does that if such were to happen. Not all 22 million people, nor a small minority should have these rights as “normal”. Any archaic laws that demean the status of women should be dismantled. That should also apply to little girls being married off before they can decide for themselves with some understanding of society (ie about 18 years). If traditional laws like Thesavalami or Kandyan allow such practices they should be banned without reservation. This fellow grinning in front of a photoshopped bookshelf should know better than to advocate continuance of “laws’ said to have been handed down from the sky around 1400 years ago. Much has changed since then. Live with it!

  • 4
    0

    …. Why cannot Sri Lanka live, as it had been for SEVERAL CENTURIES, with a blend of these personal laws is an intriguing question?,….
    Several centuries back to that Age when human beings were bought and sold as slaves. MMDA is a continuation and assault on the “weaker sex” – (I do not think of them as such but equal).
    But Times change. Concepts change. Attitudes change. Demography changes.
    Several centuries ago, people lived in enclaves with their own laws. Now there is universality with travel and education and movements against cultural barriers all opening up.
    Let us get out of man-made concepts and rules of a bygone past and accept universal equality for everyone.

  • 2
    1

    Law reform or legal reform is the process of examining existing laws, and advocating and implementing change in a legal system, usually with the aim of enhancing justice or efficiency.

    Inciting ethno-religious animosity has become a means of survival for parts of Sri Lanka’s political elite.
    This move is nothing but politics.

  • 3
    4

    Usuff girding the same batter again and again. He tries to mix up legal pluralism with the Sharia’s brutal women oppression. Legal pluralism is not something the Lankawe Muslims, who believed to have migrated from South India, after their women went to the Middle East as coolies, imposing their own, unfounded Sharia, which is not in any versions of the multiple Korans have. When the South Indian women were forcefully converted to Islam and enslaved, Muslim rulers were devastating India. Indian Hindu are, because of their historical memory, not ready accept the Islam India. In Ceylon there were no Muslims Rulers existed, so the Muslims rulers tyranny didn’t take place. Most of the Muslims migration to Ceylon took place only after European invasion to India and Ceylon. So, Buddhists and Hindu in Ceylon don’t show vengeance against Muslims.
    Culturally for Buddhists and Hindu Parents, daughters are more important than the rest of the family. From the day a daughter is born, a Tamil and Sinhala father works in the farm day and night only because he thinks of a well-placed marriage for his daughter. There is a saying in Tamil, the daughter who lost the marriage is the parents’ liability. She will promptly return home and put up with parents.

    • 2
      0

      Manipulating history and Blaming muslim has become a routine work of political survival of some racist.

      Several Hindu kings and Brahmins persucted Buddhists over centuries. This is well documented by Historians despite the Hindu right wing blaming Muslims for everything is not true. In this digital world openly rapping and killing, destroying religious places without hesitation, what they would have done those days.

      The Hindu ruler, Pushyamitra Sunga, demolished over 30,000 stupas which had been built by Ashoka the Great.

      Monks were slaughtered and nuns were forced into sexual servitude (devidasis). It is not a surprise that India, the birthplace of Buddhism, has very few Buddhists. Thousands of Buddhist monks were mercilessly killed. King Jalaluka destroyed the Buddhist viharas.

      Tirupati, Ahoble, Undavalli, Ellora, Bengal, Puri, Badrinath, Mathura, Ayodhya, Sringeri, Bodhgaya, Sarnath, Delhi, Nalanda, Gudiallam, Nagarjuna Konda, Srisailam and Sabarimala (Lord Ayyappa) in Kerala are some of the striking examples of Brahmanic usurpation of the Buddhist centres. At Nagarjunakonda, the Adi Sankara destroyed Buddhist statues and monuments.

      Bodh gaya which was built by Ashoka, was under hindu priests and pandits for decades during british occupancy. Hindu’s used to call its theirs and used to spread fake religious story and take all the money which used be donated by the foreign tourists who used to donate it specially for this buddhist temple infrastructure restoration.

      • 1
        0

        in the 1960–70 there was lot of fights between budhhist monks before the indian govt finally gave it to budhhists. note: there was an incident where a budhhist monk set himself on fire on the street for the protest against hindu atrocities and died

  • 2
    3

    The responsibility comes with authority. If a Buddhist or Hindu girl goes out from home because of all the toils of the parents and if she loses the marriage with one telephone message of three Talaks, how do you think those parents are going to respect Usuff of ill argued plural Justice? That is not all; she cannot return home because she was forcefully converted Islam and she should not change religion under sharia, if so death by stone throwing, is the verdict. Do you think the Majority community Sinhala Parents are going to buy your pluralism, if you don’t understand what that is? If you want to take the Buddhist or Hindu religion practices in the mixed marriages as pluralism or take Gnanam’s only one country one law. Your pick! If you think you can keep bulling the Sinhala parents showing the Middle East, when those girls come to Islam because of their love with the man they like, I guess you are blindly buying trouble by your arrogance. So, when it comes to the question of mixed marriage you better become Buddhist or Hindu and recognize your plurality concept by your own will. You better start to understand how the Hindu – Buddhist parents feel when they come to know that their precious one’s whole life is about to be burned down to the ground just with three cursing words.

  • 2
    1

    Blaming Islam and muslims become a routine work medias and some of
    Them have no idea exactly what would be the culture 1400 years ago and by not knowing the recent centuries of their forefathers own history.

    Subramanya Bharathi born 1882 married Chellamm who was seven years old when he was fifteen years old.

    PERIYAR E.V.RAMASAMI. (1879 -1973)
    Ramasamy was 19, Nagammai was 13

    Ambedkar 1906, when he was about 15 years old, his marriage to a nine-year-old girl, Ramabai, 

    Mahathma Gandhi born 1882 married to 14-year-old Kasturbai

    Jawaharlal Nehru at the age of 17 married .Kamala – then 13 years

    Age of Consent in European and American prior to the 20th century were allowed to be marry at the age of 10 years old and sometimes times, as young as 7 years old, legally. It was norm just over 100 years ago

    At the start of the nineteenth century in England, it was legal to have sex with a 10 year-old girl.

    Professor of Sociology Anthony Joseph Paul Cortese says that a 50 year old man being with a girl under 10 (being intimate) Under United States law was legal until the mid 1960s

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