1. IDEOLOGIES IN COALITION AND COMPETITION

As we turn to the current period of implementation of the Conciliation Boards Act by the socialist coalition,⁵² we find operative a different set of domain assumptions about Conciliation Boards.

These assumptions about the role of Conciliation Boards arose out of the legal ideology of the socialistic regime, i.e. the dominant ideas of the regime on how the inherited legal order may be restructured to accomplish socialists goals and objectives. Although there has been no governmental attempt to issue an explicit and comprehensive statement of its legal ideology, it is clear that the ideologists of the socialist coalition do share a broad set of ideas on the new direction along which the legal system should move.

We shall attempt to explicate these ideas by a careful analysis of the policy statements of the socialist parties and the state,⁵³ to the extent that they implicate the legal system. There are basically five major value orientations in the socialist ideology⁵⁴ of the Ceylonese elite, namely:

(a) nationalism, socialism, state ownership and equality;

(b) democracy, popular participation and social responsibility;

(c) stability and order;

(d) productivity, efficiency and growth;

(e) welfarism, redistribution, and raising living standards.

(a) The nationalism doctrine dictates the severance of the formal political and legal links between Ceylon and her former colonial power, Britain, and her economic dependence on foreign developed nations and “imperialistic” agencies.⁵⁵ More specifically it urges that despite the acute foreign exchange crisis, the flow of foreign capital into the country should be under conditions “consistent with the self respect of the nation”.⁵⁶ The commitment to a socialist development implies more specifically state management of all basic and essential industry;⁵⁷ the development of collective forms of property in the means of production, distribution and exchange;⁵⁸ and the elimination of economic and social privilege, disparity and exploitation.⁵⁹

(b) The democratic component of the ideology requires the state to resist all trends towards authoritarianism by safeguarding the democratic rights of the people, especially the fundamental right to change the government through the elective process;⁶⁰ and by broadening the democratic structure of government to permit popular participation at every level of national life, including the civil administration, the management of the economy and the administration of justice.⁶¹

(c) The transition from private to public control of the economy should be orderly and should take place with the minimum dislocation of the economy.⁶² This commitment to stability and orderly change implicitly rejects the alternative strategy of revolutionary change through a violent social upheaval.⁶³

(d) The emphasis on productivity, efficiency and growth to be realized through a rapid development of all sectors of the economy according to a National Economic Plan,⁶⁴ increased productivity in both the industrial and agricultural sectors, realized through improved managerial efficiency in the state enterprises.

(e) A commitment to upgrading the living standards of ordinary citizens, by securing full employment,⁶⁵ improving the wage structure and conditions of employment of working class (Election Manifesto: 177), and ensuring the equitable redistribution of the social product through welfare schemes.⁶⁶

We must now consider the implications of these value commitments to the legal system. What changes in the conception of the law, or in the organization and management of the institutional complexes and processes which form part of the inherited legal system, were precipitated by the adoption of the strategy of socialist developments that we have described above. There are two distinct and somewhat divergent developments that we may herein describe as “the instrumental conception of law” and “deprofessionalization.”

The former refers to the conscious use of the law as the instrument with which the fundamental restructuring of social and economic life is to take place. Implicit in such a conception of the law is the doctrine which dictates that there exists a differentiated body of norms, a complex of institutions and processes, modes of thought and decision making which may be distinctly labelled as “legal”.

Such a conception of law further presupposes the existence of a group of law professionals with specialized knowledge of the content of the body of norms, and training in the modes of reasoning associated with this form of normative ordering. The instrumental conception of law also embraces two related ideas. The first stresses fidelity to certain pre-determined processes of political-legal decision making, and points to a certain constancy in form and style in the expression of these policies.

The second emphasizes the law as the principal modality through which societal goals and aspirations may be realized. In other words it points to a commitment to work primarily with the facilitative frameworks, the conflict-resolving mechanisms, the enforcement agencies which are distinctly labelled as legal, to accomplish the state policy objectives.

The concept of deprofessionalization refers on the other hand to the divesting of legal specialists of their monopoly over certain law jobs such as lawmaking, conflict management, advocacy and counselling, and to permitting the performance of these jobs by persons who do not possess specialized legal training. It sometimes takes the form of an effort to contain the operation of formal legal institutions which are usually staffed by law professionals (e.g. the courts of law) by relieving it of its jurisdiction over certain types of problems. The categories of problems are then referred to newly constituted popular or quasi-popular tribunals or allowed to be dealt with by existing mechanisms of informal social control.

Although the doctrine of deprofessionalization appears to be directed at the organization and management of legal institutions it has important implications for the normative components of the legal system. As the institutions and the processes devoted to the finding and application of legal norms become less autonomous from other social institutions and processes, and the personnel who manage these institutions are less differentiated from other societal members, the law's distinctiveness as a special form of normative ordering would correspondingly suffer. And as the repertory of norms, concepts and principles which constitute the legal order lose their autonomy, legal reasoning would in turn become increasingly fused with other modes of political thought and economic reasoning in the community.

We may now demonstrate how each of these strands of thought are accommodated within the legal ideology of the socialist coalition.

We begin by examining the extent to which the instrumental conception of the “law” finds expression in the policy statements of the government. In our elaboration of the instrumental conception of the law, we pointed to two distinct and related aspects of this conception, which we shall herein refer to as the concept of “governmental fidelity to law,” and the concept of “law as the principal vehicle of societal change.” The concept of governmental fidelity to law finds expression in the socialist coalition's faithfulness to the existing political-legal framework (see Notes 60, 62, and 63); and its commitment to the idea that all governmental activity should be in accordance with pre-established legal standards, to the extent that it would be possible for any individual to predict which governmental agency has the authority to exercise its coercive power in a given circumstance, so that he would be able to plan his affairs on the basis of such knowledge.

In this limited sense of governance in accordance with the law, the instrumental conception of the law points not to a break but rather to an essential continuity between the colonial⁷⁰ and the contemporary approaches to the law. It is, however, different with regard to the use of the law as vehicle of societal change. Fundamental transformations had taken place in the conception and function of the state which had important implications for the law. The state, unlike in the colonial period, dominated as it often was by doctrines of laissez-faire (Mendis, 1956; K. M. de Silva, 1959; 249), was no longer limited to the collection of revenue and the maintenance of law and order. The commitment to a socialist ideology spelled an unprecedented involvement of the state as the provider of basic social services and welfare measures, as the regulator of the development of all sectors of the economy, and as the entrepreneurial economic actor directly or indirectly controlling the basic means of production and distribution.⁷¹ Correspondingly, the use of law as the principal instrument with which the state accomplishes its multifarious functions places an enormous demand on the resources of the legal system. More specifically the accomplishment of the goals of welfarism and equalitarianism require more social-welfare legislation, providing for the establishment of certain administrative mechanisms for the equitable distribution of the social product.⁷² Such legislation has also been directed towards the acquisition and redistribution of surplus land from the wealthy landowners to the landless,⁷³ control of rent and the allocation of public and private housing units,⁷⁴ and the imposition of a ceiling on income.⁷⁵ The ideal of rapid economic growth in accordance with a developmental plan is pursued through a series of regulatory laws which attempt, through a system of incentives and prohibitions, to control and direct the development of different sectors of the economy.

Assumption by the state of the multifarious functions that we have described herein as “provider”, “regulator” and “entrepreneur”, besides creating an entirely new body of economic laws and the mechanisms for their enforcement, also seems to envisage an important role for the law professionals in their formulation and administration.

They seem to presuppose the involvement of law professionals in the planning of alternative legal schemes for the realization of given policy objectives, in the setting up of a machinery for the implementation of the scheme defining the parameters of its powers, and formulating a system of legal or bureaucratic controls. Correspondingly, the services of such law professionals would also become necessary in the counselling of economic actors on the implications of specific schemes, and in their representation before managers of state enterprises, the courts or other tribunals, deemed competent to deal with the problems which arise in the enforcement of these schemes.