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
2
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.


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 Pounds 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 Act
5
how the manufactures, sellers and consumers
rights should be balanced with States 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 Act
6
how the manufactures, sellers and
consumers rights should be balanced with States 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

4
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 authoritys 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 products 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 manufactures rights to present their situation, states right to be reasonable and
consumers 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 Authority
10
.
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

8
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 decision
11
. 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
principles
12
. 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

11
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
individuals private land has to be acquired when necessary. This conflict between the
Individual Interest v Public Interest also has been identified by Roscoe Pound
17
.
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 ministers decision which will be important since it
cannot be questioned in courts. With the amendments introduced to the Interpretation
Ordinance
18
in 1978 by Sections 22, 23 and 24 it has made it lenient. In a case it has been held
that Ministers decision cannot be questioned in courts.
19
In the case of Gunasekara v Minister
of Lands
20
the decision was that it was a policy decision of the Minister to acquire and that
Section 5 (2) ousted the courts jurisdiction even the Ministers 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 individuals 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

16
K. Herath, Law relating to State Lands, Vijaya Publication, 1st edition, 2010, pp 131
17
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


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 individuals right.
21
In the case of Heather
Mundy
22
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 Waters 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 individuals 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

21
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 - J ustice 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 himto enable himto 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 2
nd
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 J anuary 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 365
25
and Section 365 A
26
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 termwhich 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 termwhich 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
29
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


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 childs 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 Lankas 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 1
st
2004)
33
. Very
recently New Zealand passed the law to legalize same sex marriages, been the first Asia-

31
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 Lankans anti Gay Laws, 15
th
J une 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 recently
37
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 GramCrehan & 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 GramCrehan & Katherine Rickenbaker, The Changing Debate on Same-Sex Marriage in the United
States, http://quod.lib.umich.edu/cgi/t/text/text-
idx?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 Lankans anti Gay Laws, 15
th
J une 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 societys 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)