Is The Roman Dutch Law The Common Law of Sri Lanka?

IS THE ROMAN DUTCH LAW THE COMMON LAW OF SRI LANKA?
1. Introduction
To answer this question one must explain what ‘common law’ is.
Having given the different meaning of “Common Law”, an examination
of the revival of RDL(after the virtual suppression of it during British
period) is made.
2(1) Meaning of Common Law

Glanville Williams gives five different meaning to ‘common law’. They
are:1
(i) Common law in the sense general law which is distinguished
from local law;
(ii) Common law as distinguished from statute law, which can
also called the ‘judge made law’ drawing from the customs
of the people;
(iii) Common law as distinguished from equity (equity were the
principles that emerge from the Chancellor and later the
Chancery courts;
(iv) Common law meaning ‘Anglo-American law’ and
distinguished from civil law (law in the continental Europe).
(v) Common law as residuary law
(vi) Common law as indigenous law
1
Glanville Williams, Learning the Law (1969, Stevenns, London),
p.24-25
Besides what is stated by Williams in the Sri Lankan context, there is the
fifth meaning as when used to denote RDL as the residuary law as state
by Garvin J in Sultan v Pieris :2
“It has become the inveterate practice in Ceylon to resort to all
matters outside the other area covered by the other systems of law
where it can be applied without conflict with any of its provisions,
rules or principles. Roman –Dutch Law became the general law of
the Island applicable to all its inhabitants in all matters whereupon
which their personal laws are silent and in this sense ‘common
law’ of the land”.
What is stated above is that RDL is the residuary law applicable to fill in
the gaps in a legal system where there is a multiplicity personal laws.3
RDL applies to all Sri Lankans who are not governed by special laws
(Muslim law, Tesawalamai and Kandyan law). RDL also apply to those
governed by special laws, when such laws are silent to the dispute at
hand.
2(2) Indigenous Common Law
The sixth meaning of ‘common law’ as “Indigenous Common Law”

was given in the Sri Lankan context by Lord Diplock in Kodeswaran v
AG: 4
2
Sultan v Pieris (1933) 35 NLR 58 at p.81
3
E.B. Wickremanayake. “Our Common Law” in (1949) CLCR 11
4
Kodeswaran v AG. (1969) 72 NLR 337 at p.342
“RDL as used by United Provinces is the starting point of the
‘common law’ not the finishing point. Like the ‘common law’ of
England the ‘Common Law’ of Ceylon has not remained static
since 1799. In course of time it has been subject to progressive
development by CURSUS CURIAE (Sameed v Segutamby) as the
Courts of Ceylon have applied its basic principles to the solution of
legal problems posed by changing conditions of society of Ceylon.
In these Lordships’ view if long established judicial authority for a
proposition of not inconsistent with British constitutional concept
of the exercise of sovereign authority by the Crown can be found
in the decisions of the Ceylon Courts themselves there is not need
to go back to see whether any precedent can be found for it in the
jurisprudence of the Courts of United Provinces or the doctrine of
the RDL jurists of the 18th. century. Still less is it necessary to find
precedent for it in the English Common Law”.
Thus Mark Cooray neatly specifies 6 other meanings besides the 4

meanings stated by Glanville William for ‘common law’ in the Sri
Lankan context:5
(a)RDL as found in the United Provinces in Holland in 1796 (the
year British conquered Ceylon);
(b) RDL which was developed by Ceylon courts after 1796;
(c) Judicially received EL principles;
(d) Development of the law to meet changing circumstances;
(e) Practices of the country which the Courts of Ceylon
recognize;
5
Cooray, p.73
(f) Customs recognized by the courts endorsed and approved by
Sri Lankan courts.
Accordingly “Indigenous Common Law” in the Sri Lankan

context is not a law indigenous to the soil and the people, but
a system of law indigenous to the courts. The “Common
Law” in this sense will sweep into its fold the diverse
traditions and systems of law existing in and will mould
them into a composite whole.6
The day must surely come when we will cease to ask ourselves
whether a rule of law is rule of RDL or EL or Kandyan Law or
Muslim Law or Tesawalamai, It woud be sufficient to say that it
were a rule of Ceylon Law, found either in the statute or in a
body of case recognized and acted upon by the courts (Common
Law in that sense). Kodeswaran has given that starting point.
2(3)Predecessors to the “ Indigenous Common Law” in Sri Lanka
In the cases of (a), (b) and (c) there is either an in put from RDL or EL.
In the last three cases (d),(e) & (f) which corresponds with meaning (ii)
of Glanville Williams, the Ceylon Courts themselves have evolved
common law as necessitated by changing circumstance or drawn from
local customs, which have no connection either with RDL and EL.
6
Cooray, p.74
Mark Cooray gives several instances where the Sri Lanka Courts have
deviated both from RDL and EL to adjust to Ceylonese situations.
One such instance was the case of Saibo v Baba.7 In this case the courts
recognized the local custom of ‘planter’s share as a servitude ( jura in re
aliena) within the framework of RDL of property.
In Sri Lanka it is commonly found that small portions of land is co-

owned by nearly 100 persons. Under RDL, classical jurists have
maintained that for purpose of cultivation, other co-owners should
consent. If this were to be applied sizeable extent of land could go
barren, since one co-owner can prevent cultivation. Thus
Goonewardenda v Goonewardenda8 held that any co-owner may have
use and enjoyment of coowned property without the consent of the other
coowners.
Similarly courts have deviated from RDL rules in respect bona fide
occupier of property (Hassanally v Cassim).9
3.Revival of RDL
7
Saibo v Baba (1917) 19 NLR 441
8
Goonewardenda v Goonewardenda (1913) 17 NLR 143
9
Hassanally v Cassim (1960) 61 NLR 529
English judges as well as some Sri Lankan judges in 19th. century
(Clarence CJ, Burnside and Dias) during their tenure sought to eradicate
RDL stated Jayawardena.10
10
A St. V Jayawardena, RDL as it prevails in Ceylon (1901,
Examiner Press, Colombo)

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IS THE ROMAN DUTCH LAW THE COMMON LAW OF SRI LANKA?

2(1) Meaning of Common Law

The sixth meaning of ‘common law’ as “Indigenous Common Law”

Thus Mark Cooray neatly specifies 6 other meanings besides the 4

Accordingly “Indigenous Common Law” in the Sri Lankan

2(3)Predecessors to the “ Indigenous Common Law” in Sri Lanka

In Sri Lanka it is commonly found that small portions of land is co-

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