Browsing by Author "Amarasinghe, P."

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Concept of Dharma in Classical Hindu Law.
(International Conference on Sanskrit Studies, 2017 Department of Sanskrit, University of Kelaniya, Sri Lanka., 2017) Amarasinghe, P.; Attapattu, D.N.
The word Dharma has derived from the Sanskrit root “dhr”, which stands for the sustainability and preservation. Dharma plays a vital role in the center of Hinduism. The Aryan invasion the applicability of the term Dharma was visible in the earliest Vedic text “ Rig Veda”. In this very text of Vedic literature has left an apparent analysis on how Dharma becomes a cardinal principle in whole Hindu doctrine. A passage in “Puruña sūkta” refers to this commentary. In the beginning there was Dharma. Here it stood for the Natural or Cosmic Law. In fact, this paper mainly focuses on how this universal norm called “Dharma” was placed as cardinal virtue in Classical Hindu Law. In studying the vast literature relating to Hindu legal philosophy from Manusmruthi to the entire Dharmashastra literature, it becomes an obvious fact to understand that concept was Dharma had given a central position in Hindu jurisprudence. Many of the classical Hindu jurists had relied on their judicial interpreation mainly based on the concept of “Dharma”. Furthermore this paper will trace the discovery of "Manusmruthi" and how it influenced the the Western notion of understanding natural law in accordance with Dharma.
Examining the role of “jus gentium” (Law of the Nations) during Roman Empire
(Faculty of Graduate Studies, University of Kelaniya, 2015) Amarasinghe, P.; Attapattu, D.
Roman law emerged as a private law, which mainly focused on contract, property and family relations. But many legal elements began to infiltrate into the body of law when Rome became a powerful empire. During Justinian’s period the “Corpus Juris” became the hand book of Roman legal affairs relating to international affairs and other public laws. The most important fact of the laws complied by Corpus Juris is it recognized non-citizens as a subject to the legal validity and this was uncommon to Greeks. Firstly Romans organized the legal system on foreign relations on the basis of certain customs introduced by a special group of priests in the republic era. This practice was known as “archaic jus fetiale”. Gradually this practice was turned into a broader understanding on international law which was known to Romans as “jus gentium”. Ulpian, a jurist who lived in 2nd century A.D further developed the concept of “jus gentium” into sub themes such as the state of law in the issues on slaves, marriages between Romans and non-citizens. Under the thread of jus jentium concept Romans made treaties with other foreign nations and it led them to uphold their “Pax Romana” in the frontiers of the empire. As an example the Roman emperor Marcus Aurelius and the German tribe Macromanni made a pact in 175A.D as palpable example for “jus gentium”. Apart from that Roman jurists in the empire widely wrote on how Rome should act during war with other nations. This principle was called “bellum justum” (the concept of just war). In later Roman history it had vanished but it was revived as a moral conception by St. Augustine (354-430). As a matter of the same right of bellum justum became the inspiration of Hugo Grotius who is considered as the father of modern international law to compose his advanced theory on law of war (jus ad bellum). This paper intends to trace how “jus gentium” worked out in the period of Roman Empire and also it further discusses the influences laid down by Roman law upon the foundation of modern international law. Reader will be able to understand the contribution made by Romans to shape the evolution of modern international law. In order to achieve the objective authors have adopted a methodology which is mainly based the works of Roman jurists and other historical sources. In addition to that juristic works of Hugo Grotius have taken into consideration to highlight the Roman influences on the evolution of international law.
Jurisprudential significance of Lutheran reformation on freedom and conscience in European legal thought.
(The Department of Western Classical Culture & Christian Culture,University of Kelaniya, Sri Lanka., 2017) Amarasinghe, P.
From a theological perspective it will be an absurd argument to connect Martin Luther to the development of legal thought in Europe, because once Luther himself had coined the expression “Lawyers-bad Christians”. But Luther’s concept of conscience and freedom had galvanized the new dimensions of European legal thought before the dawn of nation state mechanism and this influence has been unmarked by many of modern legal historians and jurists. In such a context this paper intends to trace the Lutheran roots in freedom and conscience of European legal thinking in secular affairs. Unlike Aquinas Luther never insisted that conscience should be an application of knowledge, he rather focused on the conscience of freedom. Lutheran notion of conscience of freedom stands as a mystical sphere and it is the ultimate temptation. Under this reason, for Luther conscience of freedom became significant than the freedom of conscience. The union of church as the ultimate authority and its executive power was dramatically disrupted and modified by the Lutheran reformation. Luther’s rejection of Papal Bull sprang out of his conscience of freedom and his wide spread criticism against the canon authority agitated the temporal politics in Europe. In fact Luther’s idea on conscience of freedom was essentially centered on one’s personal approach to God without canon influence. This concept later developed the constitutional theory in West on liberty of conscience. Especially documents like Bill of Rights included the liberty of conscience as the liberty to worship God according to the dictates of one’s own conscience. Moreover this Lutheran foundation on the conscience and its freedom led the path to the constitutional concept called “Sovereignty of people”. This paper will further discuss deep theological influence laid down by Martin Luther in European temporal legal thought which eventually carved the modern nation state formation.
Thomistic Influence on Natural Law
(University of Kelaniya, 2015) Amarasinghe, P.
St. Thomas Aquinas stands as an ivory tower in the world of western jurisprudence. Ecclesiastical works he compiled inspired later generations of jurists to reinterpret the form of natural law. During the dark period between the decline of classical civilization and the birth of medieval order the church fathers like Augustine and Ambrose preserved the notion of natural law. But they always kept the state under the authority of the church. For them the church was given absolute supremacy over the state, which only exists to protect peace on earth. This dogmatic theological concept on the state reached its very end by the new scholastic system of St.Thomas Aquinas. In his magnum opus "Summa Thiologica" Aquinas defines law as "an ordinance of reason for the common good made by him who has the care of the community and promulgated". He accepts the fact the divine law is supreme and whole community of universe is governed by divine reason. But it is not accessible for mortal humans. Such part of it as is intelligible to the human being reveals itself through the eternal law as the incorporation of divine wisdom, which gives direction to all actions and movements. However as a result of Aristotelian influence Aquinas did not adopt an antagonist view towards the state like Augustine. According to Aquinas, the state is a natural institute, born from elementary social needs of the human being. The argued state is a fundamental necessity to make the social life of the human being secured though it is evil. He categorizes natural law under the thread of divine law, that part which reveals itself in natural reason. It is from the elements of eternal law, as revealed in natural law, that all human laws derive from it. It is a considerable fact that Thomistic influence has made its profound contribution to the modern idea of natural law. Most importantly St. Thomas Aquinas justified the public commotions against tyrannical rule. He simply suggested that laws of tyrants are not laws, but rather kind of a perversion of laws. When such a law becomes harmful to the society, one can resist it. But this whole process should be confined within certain limits. Aquinas points out that resistance cannot contravene one's private right and it should be based on self defence. My research paper would illustrate how the natural law received its foundation nourishment from the teachings of St. Thomas Aquinas.