BTEC/HND/LAW/LS Lecture Note No. - 01 Week No.

01

Sources of Law

Sources of Law in the Sri Lankan Legal System

A source of law can be said to be the quarter (source) from which a rule derives its
validity as a rule of law. The sources of law in this sense are not identical in all legal
systems.

The main sources of law which are recognized in the modern legal systems are as follows:

Legislation

Judicial Precedent

Customs

Opinions of Writers

Equity

Religion

The weight attached to the different sources of law may vary from country to country.

Legislation

Legislation today is the most important source of law. Acts which are passed by Parliament
have the power to repeal all existing legal rules and replace by new legal rules.

However this power is subject to various constitutional safeguards.

Legislation passed by the present day parliament which is the supreme law making body
supersedes all other types of sources of law such as customs, religion, case law etc

If there is a conflict between an Act passed by parliament and any other source of law, law
passed by parliament prevails.

In the Sri Lankan legal system, statutes can be classified as follows;

I Legislation of the UK parliament

II Prerogative Instruments

III Statutory instruments

IV Legislation enacted by local legislatures

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V Delegated legislation

Customs

Customs are certain practices which a certain community has been in the habit of following
over a long period of time. Not all customs are legally recognized.

In English law there is a distinction between local customs and general customs. Local
customs are rules which are observed in a particular trade or locality. Eg. Local customs
relating to fishing, Kandyan law, Thesawamai law and Muslim law.

General custom is not regarded as ac custom since it applies to all persons and would form
the basis of the common law of the country.

In Sri Lanka, for a custom to be accepted by the courts there are five tests to be applied
which combine both EL and RDL

I custom must be ancient

Ii Custom must be reasonable

Iii Custom must be certain

Iv custom must be observed as a rule

V conformity with statute and common law

Opinions of Writers

Opinions of writers are a very important source of law in Roman Law and therefore in
Roman Dutch Law. In English law or common law tradition, the opinion of writers are given
more importance in the area of constitutional law.

Religion

In primitive communities law, custom and religion could not be distinguished from one
another.

Sir Henry Maine, one of the greatest English Jurists of the last century, in his work Ancient
Law, published in 1861, traced the very close inter-connection of law and religion in
primitive societies. There has been considerable discussion since Maine, of the question
whether all legal systems took their origin in religion.

Lord Denning in his work, The Changing law 1953, Page 99 states that, “without religion
there can be no morality and without morality there can be no law”. He points out that the

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common law of England, as it stands today embodies standards of Christian morality that
have been built into it by generalizations of judges brought up in the Christian faith.

In the present day it can be said that the religion is a source of law only through legislation
and custom.

In England religion is not considered as a source of law but in the middle Eastern countries,
religion still is a source of law.

L.J.M. Cooray states that religion enters the legal system of Sri Lanka in four ways:

I religion has influenced the drafting of legislation affecting Buddhist temporalities and
Muslim mosques, charitable trusts and family affairs.

Ii where civil or property rights are involved the courts will adjudicate on religious
disputes

Iii the courts may under section 106 of the Trusts Ordinance 1917, apply religious laws
and custom in the management and administration of religious trusts, places of
worship etc.

Iv religious law may be given affect to if proved as a custom.

Equity

Equity is seen as the trust and reasonable interpretation of law or that which tempers the
harshness and rigours of formulated law. Sri Lankan law has been greatly influenced by the
Roman and English jurisprudence.

English Equitable principles have been introduced into Sri Lanka through statutes which
are applicable today, for eg. The Trusts Ordinance 1917 is a codification of the English law
of Trusts, which is a product of English law of equity.

Reference;

-An Introduction to the English Legal System of Sri Lanka by L.J.M. Cooray
-An Invitation to the Law, C.G. Weeramantry

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