People tend to think of law as only criminal proceedings, imagining that all lawyers either defend or prosecute those charged with murder, assault, theft or some other crime. This is misconception. In reality most of legal practice does not involve criminal law. Most cases before the courts are civil actions, i.e. to do with disputes over property such as ownership of land, matters relating to marriage such as divorce and the custody of children, contracts to buy and sell goods, road traffic accidents where victims clam compensation for injuries from negligent drivers and so on.

What is Crime? A crime is some form of attack on, or on the property of, a member or members of the public. Criminal law is hence aimed at punishing those who commit such attacks. Most of the criminal offenses in Sri Lanka are contained and defined in the Penal Code. They include the most serious offenses such as murder, rape and robbery, though theft and causing simple (minor) hurt, down to threatening gestures (Which are defined as “assault”).

Civil law deals with relationships between individuals. It consists of many divisions and subdivisions. Some of the major ones are listed below.

• a)     Law of Property. This includes ownership and other rights over land other property. In Sri Lanka the bulk of the business of the court is to do with land law, in particular, actions to partition jointly owned land and actions for rent and ejectment by landlords wishing to rid themselves of unwanted tenants.

• b)     Law of contract. This deals with any form of binding agreement between persons, and often has to do with agreements to buy and sell goods or services.

• c)      Mercantile Law. Mercantile Law governs a variety of commercial and business relationships, and includes company law, insurance law and shipping law.

• d)     Law of Delict or Tort. A Delict or tort is a wrong committed by a person against another by a breach of some duty, and resulting in harm to the other person. It gives rise to an action for damages for the loss or injury caused. A person injuring another in a road traffic accident by negligent driving would be liable under delictual law.

• e)     Family Law. The law regarding marriage, separation and divorce, and the parent child relationship, fall into this category.

• f)       Labour or Industrial Law. This involves the relationship between employer and employee and their rights and responsibilities vis-à-vis. each other. Cases of alleged unlawful termination are the most common in this area.

Seeing law as divided into two branches, civil and criminal, still does not provide the whole picture. There is another very important area of law, namely constitutional and administrative law. Constitutional law deals with a country’s Constitution, which provides the framework of government within that country. Administrative law is concerned with decisions taken in government administration which affect rights of individuals.

“The law relating to the organization, powers, liabilities and duties of the various administrative authorities, including the control of their powers, is known as Administrative Law.” Example of matters falling within administrative law are decisions by administrative tribunals such as the Rent Board of Review and decisions to acquire land by the Land Reform Commission and other State agencies under specific laws. Administrative and constitutional laws are often classed together since they both deal with government action.

The rights and freedoms of individuals in a democratic society are generally enshrined and protected in a country’s Constitution. A person’s right to be treated equally and not to be discriminated against because of his or her race, religion, sex or political opinion, his or her right TO speak and move about freely and to be free from torture and wrongful arrest are some of the crucial rights recognized and safeguarded in the Sri Lankan Constitution, and in most Constitutions of the world.

Another method of classifying law is to divide it as “public” and “private” law. Criminal, constitutional and administrative law is classified as public law. It is easier to see why the latter two would be considered as public, since they deal with “public” relationships, i.e. between the State and individuals, as opposed to relationships between two (or more) private person. In the case of the criminal law, although it deal with wrongs committed by individuals against others, the impact of crime on the community is regarded as so serious that it is treated as an offence against the State. It is the State that usually takes action against (or prosecutes) the wrongdoer and punishes him or her. Because of this public element criminal law also falls within the public law category.

Private law on the other hand refers to disputes between individuals. This category therefore consists of all civil actions. Private law can be used as another term for civil law. Although this branch of the law deals with matters between private persons it is not untouched by State intervention. The laws which govern and regulate these matters are passed by the State (as are all laws) and they are heard before court set up by the State.

However the private element of the civil law is brought out by the fact that civil actions are between private parties. The affected individual institutes the case against the individual whose action he or she is complaining about. The State or any State agency or official need not be a party. In contrast criminal proceeding generally are instituted by the State, while in the constitutional and administrative law cases the State, or a government department or other institution or official is made a respondent (i.e. one of the parties against whom the case is taken).

The purposes of the civil and criminal law are different. Criminal law aims to punish the offender, whereas in civil law the object is to compensate the affected party.

A vital distinction between criminal and civil case is the burden of proof in each. In a criminal case the accused must be proved guilty beyond reasonable doubt. In a civil case however the facts alleged need only be proved on a balance of probabilities, i.e. that it was more likely than not to have occurred. Thus it is more difficult to prove a criminal case, as the burden is higher.

The question of how disinterested the judge should be can be linked to the difference between the adversarial and the inquisitorial systems of law, which deserve a brief mention here. The former is Used in SriLanka and the common law countries such as England, the United States and Australia, whereas the latter is prevalent in the civil law countries of Europe. The adversarial(or, as it is also called, the accusatory) system has a neutral judge who decides between two sides to a dispute as presented by the lawyers on either side. The judge’s involvement in the proceedings is minimal, expect when he or she makes a determination. Under the inquisitorial system the judge takes a much more active part, calling and examining witnesses, and effect carrying out an investigation into the matter. The emphasis is on discovering the truth or what actually happened, as opposed to deciding between two contrasting versions of it based purely on the material placed before the court.

Once it is law, it will rule and not the humans who were behind it. Thus law gives predictability to life. A law will govern all those who come within its ambit, and no one in power can arbitrarily depart from it and victimize a particular individual. Rule by law minimizes abuse of authority by those in power and safeguards the fundamental rights of the individual.

A distinctive feature of a legal system is what is known as due process. No person can be convicted or an order made against a person by a court except by following established and known procedures. Due process of law consists of three intrinsic features. One is the openness of legal proceedings. Court are public ; anyone can enter them and see and hear what is going on. This is in contrast to other forms of decision-making, such as decisions made by Ministers or public officers. At a time when there is a demand for greater transparency and accountability in government, the court stand out as open and public institutions. Another feature if due process is the right of every party to be heard. No decision can be taken affecting a person unless he or she has been given a fair opportunity to present his or her side of the story.

The third factor is that the judge is impartial. Again unlike in a State institution where the politicians or bureaucrats have their own policy agenda in making decisions which impaction people’s rights, the judiciary is uninvolved in such issues. This is of course not to say that the judges have “no natural leanings, or no policy inclinations. Indeed, it would be absurd to ask for that, because at least a judge must normally have a bias in favor of justice over injustice, right over wrong, good over evil”. But the courts are well positioned to take a genarally objective view of the matter before them. The emphasis on process has given rise to the allegation that lawyers value proper procedures over just results. This should cleary  not be so; but at the same time, as is often said, justice must not only be done, but seen to be done, and this is what due process of law ensures.

                     

If you ask a group of randomly selected individuals “What is Law?” each one will come up with a different answer. But most people will agree that law is, at the basic level, a set of rules which a community is governed by.

Law is different from other types of rules which govern certain types of behaviour. For instance game have rules. As a nation of cricket lovers we know that cricket is governed by a complex set of rules as to how a batsman gets out, how many balls a bowler may bowl in an over and so on. But cricket rules are obviously different from legal rules. This is principally because not everyone is governed by the rules of cricket. It is only if you choose to play the game that you are controlled by its rules. Similarly even if you play cricket you are at liberty to change the rules to suit your manner of playing.

Here we come to a distinguishing feature of law, in that all in a community are bound by law and no one can “opt out” of it. Anyone who steals commits an offence under the law and can be dealt with in terms of the law. In other words there is a law against theft and that law is enforceable against anyone breaks it.

Why does law have this special place in human society? Why does it affect everyone uniformly, whether they wish to be under the law or not? These questions can be answered in many different ways and at many different levels. At the very practical level however law has these special or “legal “consequences because it comes into being in a special way. Most importantly it is passed by parliament. Parliament is the representation of the people, consisting of those who have been elected by the majority of the people to represent them in government. What parliament does is therefore seen to be the will of the people, and what is passed by it governs the people. Thus even if an individual does not wish to be ruled by a certain law as he or she had a say in the election of the lawmakers, he or she is bound by what they pass as law.

The existence of law in a society means that the people in that society will be governed by the law and not by the whims and fancies of the rulers. This is an important aspect of law, showing how crucial it is in protecting the rights and freedoms of ordinary individuals. The rule of law can be contrasted with the rule of human beings, who may from time to time decree different and contrary things, treating one person in a certain way and another equally placed person  in a different way. Of course law is made by human beings, but once it is made it takes on a life of its own. A law, if well made, will be the result of many discussions and inputs from diverse angles, attempting to arrive at a just end-product.

Coming Soon………………………………….