LAW MANTRATHINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321 6417)

Sociological Jurisprudence
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

Introduction
The phrase sociological jurisprudence is often addressed with the work of the
American jurist, Roscoe Pound. In 1912 he set down a six point programme for
sociological jurists. 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. 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 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.
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 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 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) states where
the 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). 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. 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 .
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 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 .
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 . 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. Therefore it
is important to understand those 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. 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. 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 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. 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 .
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 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. In the case of Gunasekara v Minister of Lands 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 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. In the case of Heather Mundy 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 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 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.
Homosexuality is illegal in Sri Lanka, under Section 365 and Section 365 A 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.
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 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. 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 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, 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.
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. .
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 . 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) . Very recently New
Zealand passed the law to legalize same sex marriages, been the first Asia-Pacific
Region country to do this. 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 . 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 .
Therefore it is a good sign that Sri Lanka is coming up with a petition recently 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.
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)