No full-text available
To read the full-text of this research,
you can request a copy directly from the authors.
Personal Law and Human Rights in India and Israel
Abstract
Although India and Israel differ dramatically in size, population, and affluence, there are many important similarities. Each is the contemporary vehicle of an old and resilient civilization that expresses a distinctive, influential and enduring arrangement of the various facets of human experience. Each of these cultures underwent a prolonged colonial experience in which its traditions were disrupted and subordinated to a hegemonic European Christian culture; each had an earlier experience with victorious, expansive Islam; each has reached an uneasy but flourishing accommodation with the secular, scientific modernity of the West.
In each case this was achieved by a movement that embraced “Enlightenment” values and in turn provoked a recoil from modernity/rediscovery of tradition. In each there is a conflict between those with “modern” secular views of civil society and those revivalists or fundamentalists who seek to restore an indigenous religiously based society. The secular nationalism that predominated in the struggle for independence and the formation of the state is now countered by powerful tides of fundamentalism.
... Israel inherited the millet personal law system from the Ottoman Empire and the subsequent British mandate (Ahmed, 2016;Galanter & Krishnan, 2000;Sezgin, 2013). In a millet system, each religious group has religious autonomy at the community level, and the Imperial government recognizes a prominent religious leadership, which is granted the authority to conduct family matters such as marriage, divorce, alimony and succession. ...
... This enforcement dates back to 1948 when Israel achieved independence. While the religious parties wished to form a kind of theocracy, the secular parties pushed for a secular civic state that respects religious freedom (Galanter & Krishnan, 2000). The government was torn between the two opposing directions and eventually settled for an arrangement known as the 'status quo' agreement. ...
... Currently, questions and matters of marriage and divorce are exclusively determined by religious judicial institutions, while other family issues are determined by both religious and civil state judicial institutions, depending on which court the suit was initially submitted to (Galanter & Krishnan, 2000;Scolnicov, 2006). There is neither civil marriage nor a civil divorce in Israel (Fogiel-Bijaoui, 2002;Sezgin, 2013), and couples who wish to marry in a civil marriage go abroad for this purpose. ...
This article uses a feminist human rights approach and focusses on one of the most painful experiences in intimate relationships, unveiling a hitherto unexplored type of human rights infringement for divorced women, namely the right to establish a family in Israel, purported to be a democratic state. This phenomenon is based on religious marriage rules and prohibitions that include, inter alia, the classification of Jews into 10 hierarchical pedigrees, which are partially equivalent to Indian castes. Owing to this caste-like classification, thousands of couples are proscribed from marrying each other every year in Israel. This article focusses on couples that disobeyed the prohibitions on couples consisting of male Cohanim (descendants of Jewish priests) and divorced women, as one type of forbidden marriage. Four themes emerged from data analysis of narratives of 26 interviewees, which converge to a common motif of the liminality of Cohen-divorcee couples. The article argues that this liminality undermines the basic rationale of the prevailing millet (personal law) system and discusses the implications of this liminality for women’s human rights and religion-state relations.
... The domain of family law in contemporary Israel can be described as a personal status regime, that is, a legal-institutional arrangement that imbues communal-religious courts with jurisdiction in matters related to the personal status of their respective community members (Abou Ramadan, 2006Blecher-Prigat & Zafran, 2017;Galanter & Krishnan, 2000;Halperin-Kaddari, 2004;Sezgin, 2004;Yefet, 2009Yefet, , 2016Zafran, 2013). These confessional tribunals are legally empowered to exercise their jurisdictional authority over all Israeli residents who belong to the respective faith by birth/baptism or conversion, either exclusively in matters of marriage and divorce or alongside civil family courts in other core family matters (Abou Ramadan, 1997, 2000Amir, 2016Amir, , 2018Edelman, 1994;Halperin-Kaddari, 2004;Hacker, 2012;Sezgin, 2004Sezgin, , 2010Yefet, 2009Yefet, , 2016Zafran, 2013). ...
The article analyzes Israel's ecclesiastical court system through the prism of Weberian theory to both empirical and theoretical ends. On the empirical level, it aims to illuminate a grossly understudied socio‐legal arena—the communal Christian courts in the Middle‐East. On the theoretical level, it seeks to reclaim the Weberian concept of kadijustiz, which refers to “formally irrational” legal systems. In recent decades, scholars have engaged in a process of “blaming” that discredited the conceptualization of Islamic law as kadijustiz and resulted in the concept's erasure from socio‐legal theory. After renaming it to the more neutral and non‐Orientalist richterjustiz, we employ this new‐old concept to analyze Israel's ecclesiastical courts and demonstrate its theoretical and analytical merits. The article concludes with several theoretical propositions, which draw on the empirical case study and contribute to the refinement of Weberian theory.
... Like many sociological studies on glocalization (see Drori, Höllerer, and Walgenbach 2013), the units of analysis largely remained in terms of nation-states and cross-national comparison. Social studies asked questions regarding the differences between human rights practices across various countries and regimes (e.g., Adeola 2000;Galanter and Krishnan 2000;Kemp and Kfir 2016;Ropp and Sikkink, 1999), the nature of human rights acceptance and adoption across various states (e.g., Abu-Sharkh 2013; C. J. Beck et al. 2012;Greenhill 2010;Hafner-Burton and Tsutsui 2005), the translation of the human rights discourse into different national arenas (Golan and Orr 2012;Levitt and Merry 2009), and so on. ...
Discursive variations of human rights are typically examined in a cross-national comparison, while usually referring to local arenas as homogeneous particularistic spaces confronting glocal uniform performances of human rights. Using a comparative analysis of six paradigmatic altruistic Israeli nongovernmental organizations (NGOs), and critically reviewing globalization and human rights literature, this study challenges the cross-national-oriented studies and the common analysis of human rights in local settings as a monolithic phenomenon. By mapping the Israeli organizational field of human rights, the study reveals substantial variations in terms of glocal identity, which allow the creation of an analytical framework for contextualizing local diversity. This diversity, as this paper shows, includes distinct models of human rights activities, which were mostly absent or dismissed as inauthentic in research thus far. The paper discusses the importance of future awareness of intranational variations, and the potential contribution this may have to the sociological understanding of current human rights institutions. Finally, the paper concludes by raising awareness to liberal normative assumptions in research, which may lead to the exclusion of alternative social phenomena from inquiry, especially in the case of moral discourses.
... İstanbul: GOAYayınları. s. 8, 9, 176, 177, 183.288 Galanter, M. & Krishnan, J. (2000). Personal Law & Human Rights in India and Israel.Yahudi dini hukukundaki boşanma anlayışı Tevrat'ın BeşinciKitabı'na (Tesniye) dayanmaktadır. ...
Israel has a unique place for the field of constitutional law. Since the founding of the State of Israel, the constitution-making process is still continuing. It can be easily observed that the religion occupies a significant and controversial space in the constitution-making process, creating the Israeli citizen identity, defining Jewishness which obviously forms one of the bases of the state and also in state-citizen relations. It is hard to place the State of Israel in conventional state-religion relation typologies. In this research, State of Israel’s relationship with religion is presented, compatibility of Jewishness and democracy which have their roots in Israeli Declaration of Independence and basic laws are discussed and also concepts of ethnocracy and ethnic democracy are evaluated in order to identify the characteristics of the State of Israel in its relationship with religion.
... Other criticisms include the strict application of Halakhic norms to individuals who consider themselves secular persons and do not wish to undergo religious ceremonies for the purpose of marriage or divorce. 121 The system of recognized religious communities also has implications for taxation and financial support because only recognized communities enjoy some benefits. 122 In India, the British colonial authorities introduced a general territorial law, but applied, in issues related to family law in the regular courts, the Quranic law to the Muslims and the Shastra law to the Hindus. ...
... 5 The Supreme Court ruled in these cases that according to India's criminal law, women were eligible to receive alimony beyond the three-month postdivorce period (the idatt) set by the Muslim Sharia. At the time, Muslims did not publicly object to the rulings because, as Galanter and Krishnan (2000) claim, the presiding judge, Krishna Iyer, did not hand down a universal judgment abrogating the Sharia; rather, he limited the scope of his decisions to the specific cases involving the women who demanded additional compensation. ...
Granting legal rights to groups in deeply divided societies is important and necessary, but the cost of awarding these rights—in terms of their negative impact on civil rights, and particularly on women's rights—are key issues affecting the politics and policy of diverse polities. The article explores the implications for Muslim women of applying minority autonomy in India. In parallel, it delves into India's policy of religious autonomy for minorities as viewed by the political and legal authorities, and through the eyes of different sectors of the minority community. Analyzing the complex construction of rights within a communalized polity, this article attempts to transcend the ongoing debate on the implications of Muslim Personal Law in India and suggests policy directives aimed at empowering minority women. The Indian case provides a constructive microcosm for studying these tensions comprehensively and comparatively, and holds important lessons for other multicultural societies worldwide.
Related Articles
Harel‐Shalev , Ayelet . 2009 . “.” Politics & Policy 37 (): 951 ‐ 970 . http://onlinelibrary.wiley.com/doi/10.1111/j.1747‐1346.2009.00206.x/abstract
Pearson‐Merkowitz . 2012 . “.” Politics & Policy 40 (): 258 ‐ 295 . http://onlinelibrary.wiley.com/doi/10.1111/j.1747‐1346.2012.00349.x/abstract
Sisk , Timothy D. 1992 . “.” Southeatern Political Review 20 (): 1 ‐ 27 . http://onlinelibrary.wiley.com/doi/10.1111/j.1747‐1346.2009.00206.x/abstract
Related Media
. 2006 . “.” Government of India. http://minorityaffairs.gov.in/sites/upload_files/moma/files/pdfs/sachar_comm.pdf
Nayar , Usha . 2009 . “.” Government of India, Department of Women and Child Development (DWCD). http://www.jeywin.com/wp‐content/uploads/2009/12/An‐Analytical‐Study‐of‐Education‐of‐Muslim‐Women‐and‐Girls‐in‐India.pdf
... In India in the late 1950s, the unwillingness of the Muslim community, headed by several prestigious religious personalities, to relinquish the shari'a (or the Anglo-Muhammadan law administered in its name) brought to a halt parliamentary attempts to reform the Indian personal-status regime. 85 irty years later, the Indian 'ulama' establishment was able to mobilize the Muslim masses to carry out demonstrations in reaction to a controversial judgment of the Indian Supreme Court. is decision, the famous case of Shah Banu, was denounced by the 'ulama' establishment as contradictory to shari'a principles, and was therefore perceived by the Muslim public as marking the end of Muslim personal law in India. ...
A close scrutiny of the Islamic religious field in Israel reveals that those responsible for the application of shari'a rules (i.e. judges presiding in shari'a courts), do not possess the "symbolic capital" that is required in order to distinguish them from laymen. Since shari'a judges in Israel enjoy unprecedented centrality within the Islamic religious field, the field itself is not well-distinguished from the secular legal field. This situation results not only from the fact that persons without proper shari'a training have been appointed to the office of shari'a judge (qadi), but also from the fact that the qadis are appointed by a non-Muslim authority and that the shari'a courts are subordinated to Israeli legislation. I argue that the Islamic religious field in Israel is an anomaly, characterized by lack of autonomy, ambiguous boundaries and lack of competition between actors (due to the monopolization of power by qadis).
... 84 In this respect, the Israeli dual family law regime is unique. 85 However, more and more liberal states are facing the need to define policies regarding the work of religious tribunals that deal with family matters outside the official state legal system. 86 These states must choose between setting up potential conflicts between the secular and religious tribunals, integrating religious tribunals into the state legal JOURNAL OF LAW & RELIGION [Vol. ...
In democratic countries where the law might be influenced by religious communities, family law cases can present one of the most sensitive and complex challenges. Religious laws governing personal status and the supervision of family relations are vital components of many religions and, in some cases, crucial to the cultural survival of the religious community. However, the family laws of some religions are discriminatory towards women, same-sex couples, people of other religions, and other groups. Currently, there is heated political and scholarly debate about the tension between the norms of multiculturalism, which dictate that religious communities be allowed to preserve their values and culture, including through autonomy over family law, and liberal norms prohibiting the discrimination that religious family law can perpetrate.
One of the best known liberal advocates for restricting discriminatory cultural practices of minority groups was Susan Moller Okin. Okin maintained that many cultural minorities are more patriarchal than the surrounding culture and that the female members of the patriarchal culture might be much better off were the culture into which they were born to become extinct, if, that is, it could not be altered so as to uphold women's equality. She pointed to religious personal law as one example of a sphere in which patriarchal cultures strive to maintain autonomy at the cost of women's and girls' freedom and basic rights. Consistent with her view, nation states should not give legal autonomy over family matters to patriarchal minorities unless these minorities reform their religious laws so as not to discriminate against or impair the rights of women and girls.
... Today, those whom the state identifies as Hindu, Buddhist, Sikh, Jain, Muslim, Parsi, Jewish and Christian in India continue to be governed not only by general family law, 6 but also by a system of 'personal laws' which regulates matters relating to the family including marriage, inheritance and adoption. 7 The personal laws that apply to an individual are at least partially determined by her presumed religious identity 8 – her 'personal law group' (Jaising 2005: 324; Bhattacharjee 1994: 10; Galanter and Krishnan 2000: 101; Larson 2001: 1; Redding 2006, 2007). These laws are also, ostensibly at least, partially based on the presumed religious doctrine and the presumed norms of the religious community of those to whom they apply. ...
The ‘millet’ and 'personal law' systems, found in countries such as India, Bangladesh, Sri Lanka, Singapore, Malaysia and Israel, are long-standing models of state accommodation of religious norms in family law. This paper, a work of applied normative legal theory, uses the Indian system of personal laws as a test-case to consider the extent to which these modes of accommodation undermine personal autonomy. In particular, it studies the claim, made both in the context of the Indian personal law system and in debates in other jurisdictions on the use of religious norms in family law, that if people had a choice between religious law and generally-applicable secular law, this would remove any objection to such systems on the grounds of personal autonomy. It also studies the further claim that such a power to choose would actually make the personal law system better for personal autonomy than a system of general secular laws. Liberal states, including the United Kingdom and Canada, increasingly face calls from religious groups to reform family law in order to accommodate religious norms. The conclusions of this paper contribute to the broader question of whether these states should do so, as well as the question of what form any accommodation should take.
Colonial Bureaucracy and Contemporary Citizenship examines how the legacies of colonial bureaucracy continue to shape political life after empire. Focusing on the former British colonies of India, Cyprus, and Israel/Palestine, the book explores how post-colonial states use their inherited administrative legacies to classify and distinguish between loyal and suspicious subjects and manage the movement of populations, thus shaping the practical meaning of citizenship and belonging within their new boundaries. The book offers a novel institutional theory of 'hybrid bureaucracy' to explain how racialized bureaucratic practices were used by powerful administrators in state organizations to shape the making of political identity and belonging in the new states. Combining sociology and anthropology of the state with the study of institutions, this book offers new knowledge to overturn conventional understandings of bureaucracy, demonstrating that routine bureaucratic practices and persistent colonial logics continue to shape unequal political status to this day.
Religious courts or religious tribunals are state or non-state dispute settlement fora that base their decisions on religion-based material and procedural laws and whose judges are typically members of the particular religious community whose laws the courts apply. While sharia courts might be the first of such fora that come to mind when hearing the term ‘religious courts’, there also exist Christian, Jewish, and Buddhist courts in both the Global North and the Global South. Religious courts may be established and run by the state or by private religious entities that operate outside of the realm of the state. Their jurisdiction ranges from covering religious education or the internal organization of religious communities, to family and inheritance law and, in some countries, criminal law.
This entry in the Max Planck Encyclopedia of Comparative Constitutional Law engages with religious courts in various countries in Africa, Asia, Europe, the Middle East, and North America. It begins by briefly outlining historical examples of religious courts. It then deals with the differences between state and non-state religious courts, with questions of judicial review and with the subject matter jurisdiction of religious courts. Finally, it asks how far the operation of religious courts might violate fundamental rights.
The article focuses on one of the most painful experiences in intimate relationships and unveils a hitherto unexplored type of human right infringement, namely the right to establish a family in Israel, purported to be a democratic state. Thousands of couples are proscribed from marrying each other every year in Israel. This paper focuses on Jewish couples consisting of male Cohanim (descendants of Jewish priests) and female divorcées, as one among other types of forbidden marriages. Four themes emerged from data analysis of narratives of 26 interviewees, which converged to a common motif of liminality of Cohen-divorcée couples. Based on empirical data, I describe the predicament attendant to this human rights violation which is transmitted to offspring of these couples. The article argues that this liminality undermines the basic rationale of the prevailing millet (personal law) system and discusses the implications of this liminality for human rights and religion-state relations.
Marriage is defined as a contract in Islamic and Jewish law, while the positive English and Welsh legislation does not provide the definition of marriage, but by analysing the normative acts we draw a conclusion that marriage is a legally regulated union of two people, and that in the eyes of the state marriage represents a legal status. In countries in which Muslims live and reside, and whose positive legislation is analysed through this article, it is basically not digressed from the definition of marriage given in the codification of Islamic family law conducted by an Egyptian scholar Muhammad Qadri Pasha. While Egyptian and Moroccan normative acts defined marriage as a contract, the laws of India, Pakistan and Malaysia do not define marriage, but their interpretation leads to a conclusion that marriage represents a contract between a man and a woman. Jewish religious law defines marriage as an oral agreement, even though the newlyweds sign a type of document, known as “ketubah”, which is defined and treated as a prenuptial agreement due to its content. When it comes to divorce, the similarity between the Islamic and Jewish law is reflected in the fact that the man has the right to divorce without providing an explanation why he wants to get a divorce, and the difference between the Islamic and Jewish law is in the fact that the Islamic law, meaning positive legislation of Muslim states, provides a possibility for the woman to ask for a divorce but only for specific reasons and under certain conditions, while the Jewish law does not provide such an option for the woman. All Muslim states that are subject of research in this article have recognised the danger and the consequences of potential abuse of the man’s right to divorce, which is why they resorted to certain legislative solutions.
Keywords: concept of marriage, marriage law, family law, Islamic law, Jewish law, English law
The Convention for the Elimination of All Forms of Discrimination Against Women is central in outlining the gendered dimensions of human rights. India ratified this treaty with the reservation that it would be complied with only in accordance with the religious personal law. This article will examine the ways in which the convention interfaces with religious personal law, and the efficacy of the convention in both top-down and bottom-up reform of religious personal laws, as well as secular laws.
Comparative law is a fecund field of study capable of yielding insights not obtainable otherwise. It comprises a vital tool not only for academics but also for law and policymakers. It also happens to be a delicate undertaking, and prone to several pitfalls if not approached carefully. Given the shared legal and political antecedents of South Asian nations, a South Asia-specific comparative law discourse of at least some measure of robustness ought to have emerged by now. This expectation lies largely frustrated. Scholarly engagement with comparative law is both sporadic and unsatisfactory, the latter attributable to recurring shortcomings such as a tendency to cherry-pick. Such desultoriness is consequential, given comparative law’s capacity to provide inputs to states’ lawmaking and policymaking projects. In this paper, I explore a little-known instance, one that involves an initiative of the Indian state of Kerala to reform and codify certain aspects of Islamic personal law. It borrowed considerably from the reform initiatives of Pakistan and Bangladesh but, unusually, chose not to acknowledge this fact. It also deviated from the latter in several crucial respects. And in deviating, it also succeeded in undermining its own stated objectives. In this paper, I examine the two initiatives; their similarities and differences; and the implications that these similarities and differences carry, particularly in the light of avoiding pitfalls while doing comparative law.
The Cambridge Companion to Comparative Family Law - edited by Shazia Choudhry January 2019
Cambridge Core - Sociology of Religion - Religion and Nationalism in Global Perspective - by J. Christopher Soper
This essay on Mitra Sharafi's Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (2014) focuses on the relationship between certain minorities and the law of the state. It seeks to expand the discussion found in Sharafi's book in three directions: first, by comparing the attitude of Parsis in South Asia to the law of the state with the attitude of German Jewish immigrants in mandatory Palestine and Israel to state law; second, by asking whether the Parsis' embracing of state law was linked to their economic success; and, finally, by pointing to the nature of law itself as a “minority discourse.”
Comparative law observers have long viewed India as a shining example of a democracy that has withstood enormous challenges since gaining independence from Britain in 1947. Such challenges have included the great wealth differentials between the “Haves” and “Have-Nots,” grinding poverty for hundreds of millions of people, inadequate infrastructure, and the lack of basic needs such as reliably clean water, safe transportation, and quality primary education for children. In addition, corruption is taken almost as a given by everyday Indians since it inhabits so many aspects of daily life. Yet in spite of these overwhelming problems, India has been able to uphold its democratic character for most of the past six-plus decades. India deserves praise for its representative system of government, structure of federalism, detailed rights-based constitution, and free press. It is a plural, multi-ethnic, multi-linguistic, and multi-religious society that has been able to retain cohesiveness, especially when compared to other post-colonial, Global South countries that have emerged since World War II. Furthermore, since the country liberalized its market in 1991, it has become an economic force on the world’s stage, raising the standard of living of, and providing greater opportunities to, millions of Indians like never before. With all of its troubles, including its sad history of casteism that continues to this day, India is indeed an interesting, paradoxical, but also inspiring case study for scholars who follow comparative law and society issues.
Law and Faith in a Sceptical Age is an analysis of the legal position of religious believers in a dominantly secular society. Great Britain is a society based upon broadly liberal principles. It claims to recognise the needs of religious believers and to protect them from discrimination. But whilst its secular ideology pervades public discourse, the vestigial remains of a Christian, Protestant past are seen in things as varied as the structure of public holidays and the continued existence of established churches in both England and Scotland. Religious, Christian values also form the starting point for legal rules relating to matters such as marriage. Active religious communities constitute a very small minority of the population; however, those who belong to them often see their religion as being the most important element of their identity. Yet the world-view of these communities is frequently at odds with both the prevailing liberal, secular climate of Great Britain and its Christian, Anglican past. This necessarily entails a clash of ideologies that puts in question the secular majority's claim to want to protect religious minorities, the possibility of it being able to sufficiently understand the needs of those minorities and the desirability or practicality of any accommodation between the needs of the various religious communities and the secular mainstream of society. Law and Faith in a Sceptical Age addresses these issues by raising the question of whether a liberal, secular state can protect religion. Accommodation to different religious traditions forms part of the history of the legal systems of Britain. This book asks whether further accommodation can and should be made.
Introduction The U.S. Supreme Court recently remarked, “Long ago [in 1890] we observed that ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the law of the States and not to the laws of the United States.’” The context for the statement was a case followed by Court-watchers for a challenge to the validity of the Pledge of Allegiance. The very way it was made, in such an offhanded way, underscores how commonplace is the basic assumption that marriage and divorce law is entirely and exclusively a state law matter. Even more basic than this federalism assumption are two further assumptions about family law, which run so deep they are virtually never even stated. The first is that the civil authority is the sole relevant authority for matters relating to marriage and divorce. The second is that within civil law there may only be one regulatory regime governing matters of marriage and divorce. Thus, there is an assumption of (1) exclusive jurisdiction, with all authority residing in the civil state; and (2) a “one-size-fits-all” model that applies to all couples, where no deviation from that model is permitted.
Covering the earliest Sanskrit rulebooks through to the codification of ‘Hindu law’ in modern times, this interdisciplinary volume examines the interactions between Hinduism and the law. The authors present the major transformations to India's legal system in both the colonial and post colonial periods and their relation to recent changes in Hinduism. Thematic studies show how law and Hinduism relate and interact in areas such as ritual, logic, politics, and literature, offering a broad coverage of South Asia's contributions to religion and law at the intersection of society, politics and culture. In doing so, the authors build on previous treatments of Hindu law as a purely text-based tradition, and in the process, provide a fascinating account of an often neglected social and political history.
This article surveys key aspects of sociolegal scholarship on India. The literature has tended to emphasize certain areas, such as rights-based social movements, courts (both formal and informal), and the legal profession. Additionally, various authors over the years have examined gender, religion, and caste--each on its own, but also how each can intersect with one another and with the other above-mentioned topics. And more recently, there has been a burgeoning sociolegal literature on the role globalization plays in India. Scholars who have written on these issues approach their work from a range of methodological perspectives, but regardless, as we argue here, much of this literature has served as a vehicle to champion the rights of the needy. Gaps, of course, still are present, which we discuss. We conclude by highlighting a few areas upon which scholars may wish to build in the future.
Activism around sexual harassment has sparked developments around the globe, but every legal system has its own individualized story of sexual harassment law. This article engages in a comparative study of sexual harassment in India and Israel, which seem to share a very similar development. Both countries introduced reforms in the area of sexual harassment around the same time and have legal systems that share common denominators, such as a British colonial past and a mixture of modernity and tradition. This article follows the processes that shaped the reforms and uncovers significant differences between Indian and Israeli sexual harassment law. In general, Israeli law is more robust in both its substantive scope and its enforcement. Paradoxically, for these very reasons, it is encountering a significant backlash not traced in the Indian context.
The aim of my comment on William Twining's recent book Globalisation and Legal Scholarship (2011) is to present and contrast two models of general (or universal) jurisprudence: the one favoured by Twining and the other adopted by Jeremy Bentham. Twining's model aims to be general by capturing the great variety of laws as they exist in the world; by contrast, Bentham argued that it is mostly prescriptive claims about law that can be universal. I argue that the descriptive model suffers from serious flaws: it either has to posit arbitrary boundaries between law and non-law (this is the problem from which HLA Hart's version of descriptive jurisprudence suffers) or it does away with all boundaries, resulting in a shapeless barrage of data (this is the problem with Twining's version of this model). By contrast, I argue, the Benthamite version of general jurisprudence is free from these problems. I then argue that Twining's descriptive approach leads him to various prescriptive recommendations, which I believe are unattractive.
The article aims at advancing our understanding of critical junctures in the evolution of religious/secular regulations, referring to those moments in history when one particular arrangement is adopted among several alternatives, establishing an institutional trajectory that is resistant to change in the following years. It traces the regulation of personal status laws in Israel and India, which, despite attempts by political leaders at time of independence to defer clear choices regarding the role of religious law, became generally entrenched in later decades. Based on the Israeli and Indian cases, and in contrast with common approaches, the article demonstrates how decisions made by influential political actors during the foundational stage of the state appear difficult to reform, regardless of the content of these decisions—whether they introduce a radical change or maintain existing practices—or the level of decision making—whether constitutional or ordinary parliamentary legislation.
The article discusses the significance of symbols within constitutional law by analyzing the role of laws introducing traditional national symbols into two legal systems characterized by a mixture of secular and traditional traits—India and Israel. Specifically, it focuses on the legal prohibitions on cattle slaughter in India and on pig growing and pork trading in Israel, animals considered “key symbols” in their respective cultures. Changes in the social and political context emerged as crucial for the legal regulation of these symbols as well as for its durability. Despite the similarities in their starting points, the Indian and the Israeli systems have ultimately taken divergent courses, reflecting differences in their respective contexts and underlying tensions. Whereas Indian cattle slaughter prohibitions are expanding with the constitutional backing of the Indian Supreme Court, pig-related prohibitions in Israel are declining, again with the constitutional backing of the Israeli Supreme Court. The article explains this difference by placing these symbols in a wider social context. Cattle slaughter in India has long been a consistent source of tension with the Muslim community. The basic strain that led to the original legislation, then, remains just as powerful, encouraging the preservation and expansion of laws forbidding cattle slaughter. By contrast, pig prohibitions in Jewish culture developed in the context of persecutions by Greco-Roman rulers and later on in Christian Europe. The “other” against whom this prohibition developed, however, is no longer part of public life in Israel. In addition, the Muslim community in Israel is equally averse to pigs. As time passed, then, the importance of pig prohibitions for Israeli secular Jews within the context of their national identity has declined, and they are currently perceived as a source of tension between secular and religious Jews. Many secular Israelis indeed view the pressure for pig-related legal prohibitions more as a symbol of religious coercion than as a national symbol of identification.
This article focuses on the ambivalent effect of religious autonomy in India and the outcome for democracy in the country. The Indian constitution guarantees autonomy to its religious minorities, and promises the minorities the freedom independently to manage their religious affairs in addition to a proportional share of the budget. At the same time, the constitution emphasizes the aspiration to legislate ‘uniform personal laws’ for all the citizens of India in accordance with the principles of secularism, equality and with India's self-definition as a civic nation. This recommendation has however remained a ‘dead letter’ until today. In this domain, the state has constituted a civic law for Hindus, which adjusts Hinduism to democratic principles. In this sense, the state has nationalized Hinduism, and the government has assumed authority and reformed Hindu civic and marriage laws. However, although they have tried, the state's legal and political institutions have not interfered thus far with Muslim marriage and religious laws. Muslims are committed to the Sharia while Hindus must obey the state's civic laws. By avoiding enforcement of affirmative action for Muslims in the spheres of political representation or public employment, while simultaneously prohibiting Hindus' group rights, and providing religious autonomy to the Muslim minority, the Constitution, which stresses so-called secularism as well as minority protection, intensifies the conflict between these two governance principles. The conclusion is that this situation not only leads to ideological conflicts and resource competition but also, overall, threatens the stability of India's democracy.
This paper examines the condition of women in both Israel and Islamic countries, specifically their freedom to leave a marriage, and compares respective models. First, the study analyses the peculiar relationship between secular and religious law in Israel and Islamic countries. Second, it studies the nature of marriage as a contract in these legal systems, comparing a totally private approach and a mixed, public–private approach. Third, it analyses the possibilities of dissolution of marriage in such legal systems, indentifying some aspects of gender disparity. Finally it discusses some juridical tools offered in these legal contexts, which are intended to rebalance the exercise of a woman's freedom to leave a marital relationship and its conditions.
It is believed that India will soon have the highest number of HIV/AIDS cases of any country. Some reports project that 37 million people will be infected within the next two decades. Sadly, few studies have examined the legal claims of those who suffer with this disease in this, the world's largest democracy. In this article, I systematically examine how the courts in India have responded to rights-based claims brought by people who have HIV. The conventional wisdom is that the Indian judiciary frequently protects the rights of the poor, the under-represented, and the ill. But my findings reveal that, at least for people with HIV, the courts have not extended to this group full constitutional protection. The implications of this conclusion force us to revisit whether the courts in India best safeguard the rights of others who are disadvantaged.
India's courts suffer from enormous backlogs. To remedy this, Indian politicians and judges have been promoting various reforms, including alternative forms that would dispose of cases more quickly. One forum in particular, the Lok Adalat or people's court, has been promoted with special fervor for nearly two decades. The Lok Adalat has been widely trumpeted as a success by its proponents, but very little information is available on the workings of this institution. This study is a preliminary empirical assessment of several sorts of Lok Adalats. These Lok Adalats exhibit great variation in how they function. We find that their performance is highly problematic, both in terms of effectiveness in resolving cases and in the quality of justice received by the parties. These findings have serious implications for the millions of Indians currently being encouraged or required to submit their grievances to Lok Adalats and for the prospects for efficacious reforms of the Indian legal system.
To say that Professor Marc Galanter's scholarship is diverse would be a woeful understatement. In his over forty years of writing, Galanter's work has covered topics including (but not limited to) torts, contracts, constitutional law, comparative law, empirical legal studies, the legal profession, legal anthropology, and South Asian studies. With Galanter's scholarship so heavily cited and respected, we see it as only fitting, particularly upon his recently turning seventy-five, to acknowledge his achievements in a symposium that reflects back on the years of his work. Serving as special editors to an issue forthcoming in the Duke Law School journal, Law and Contemporary Problems, we offer here a short essay that briefly summarizes the various works of the contributors participating in this dedication. Our authors provide a set of papers that cover a range of disciplines: law, sociology, political science, anthropology, history, and philosophy. The works embody Galanter's long-held belief that not only should law be studied in an interdisciplinary manner but that it can be instrumentally used by both elites and grassroots activists to effectuate social change. The symposium-contributors also share another connection. Each views her or himself to be a student of Galanter's. Some of these students have been directly mentored by Galanter while at the University of Wisconsin-Madison and have since gone on to academic posts at other institutions. Others are more distance-students who have been influenced either while studying elsewhere or while working as academics at different universities. The common link though is that this cohort is part of the next generation of Galanter-influenced scholars who will be carrying-on the lessons of Galanter's vast scholarship for decades to come.
The legal regime of human rights entitles individuals and groups to legal protection against the hegemony of the political majority, of the religious establishment and of other powerful social actors. This Article examines the way in which this protection is implemented at the constitutional and international levels. Within states, it is at the constitutional level that the supremacy of human rights is translated into a normative paradigm. However, within states there may be opposition to the human rights regime-pragmatic or ideological-from powerful lobbies: majoritarian or sectoral. This opposition may result in lack of political will to apply or enforce human rights through constitutional mechanisms. The author shows that, in contrast, the formulation of the human rights vision at the international level consistently underwrites the human rights of individuals and groups as against the power of traditionalist religious or cultural norms. She suggests that the future of human rights as a universal paradigm depends on the effectiveness with which international norms can be translated to the constitutional level thus suggesting a reversal of the previously observed process of translating from the constitutional to the regional.
Customary religious legal systems have been utilized in various areas from fighting against crime to such mundane affairs as setting the price of goods and services in the market place or regulating personal and familial relations. Against this background, the present study will exclusively focus its lenses on so-called personal status systems as quintessential example of customary religious legal systems in the contemporary world. In this context the article will first address the question of why modern nation-states (e.g., Israel, Egypt, and India) still continue to employ pluralistic personal status systems and differentiate among their citizens despite the fact that they were originally founded on premises of non-discrimination and equal treatment. Secondly, the study will explain how pluralistic organization of law and justice affect the fundamental rights and freedoms of individuals living under such systems; how they cope with limitations imposed upon their rights by communal/religious institutions; and what tactics and strategies they use to navigate through the maze of personal law. Lastly, after demonstrating what approaches have been successfully used to bring about changes in the context of Israeli, Egyptian, and Indian personal status laws, the paper will identify key lessons and recommendations for the purpose of helping human rights activists, donors and members of programmatic communities who design intervention mechanisms and tools to incorporate universal human rights standards into customary and religious systems around the world.
How can societies still grappling over the common values and shared vision of their state draft a democratic constitution? This is the central puzzle of Making Constitutions in Deeply Divided Societies, of which the introduction chapter is presented. While most theories discuss constitution-making in the context of a moment of revolutionary change, the book argues that an incrementalist approach to constitution-making can enable societies riven by deep internal disagreements to either enact a written constitution or function with an unwritten one. It illustrates the process of constitution-writing in three deeply divided societies – Israel, India and Ireland – and explores the various incrementalist strategies deployed by their drafters. These include the avoidance of clear decisions, the use of ambivalent legal language and the inclusion of contrasting provisions in the constitution. Such techniques allow the deferral of controversial choices regarding the foundational aspects of the polity to future political institutions, thus enabling the constitution to reflect a reality of divided identity.
Israel is a diverse country. Nearly one-fifth of the total population, composing about 1.2 million of its citizens, are Palestinian-Arabs
- the rest of the population being predominantly Jewish.1 The religious composition of the non-Jewish population is made up of Muslims, Christians and Druze.2 Moreover, this multiplicity is evident within the different religious groups themselves. The Jewish community is divided
into secular, traditional and religious groups,3 the latter containing a well defined Ultra-Orthodox camp.4 In addition, Reform and Conservative Judaism have gained force recently, creating new challenges to the dominant Orthodox
establishment.5 The Christian population is divided into ten recognized religious congregations,6 each with its own body of institutions that include a court system and in some cases even have substantial ties to foreign
governments.7
The Islamic sharia is central to Islam in the minds of most Muslims and non-Muslim scholars. In many ways, the centrality of the Islamic sharia has increased in recent decades. Yet despite—or perhaps because of—this centrality, the precise, even the general, role of the sharia in Islamic societies is the subject of contentious debate among Muslims. Outside of and underlying such debates are more subtle and rarely articulated differences about the meaning of the Islamic sharia. In this essay, I will put forward a general intellectual map for those varying meanings. More critically, I will suggest that important shifts in the meaning of the Islamic sharia have taken place in the Muslim world, and that these shifts are closely connected to the nature and viability of legal and educational institutions associated with the Islamic sharia in the past. As the Islamic sharia has become disconnected from these institutions, its meaning has changed in some fundamental ways. Most important, the sharia is approached less for its process than for its content. And because the shift in institutions and understanding has received much less attention from Muslims, widespread attempts to re-create older relationships (particularly involving the relationship between the Islamic sharia and the state) in fact involve a deepening rather than a counteracting of the transformation in the Islamic sharia.
The rise of Zionism, with its call for renewed national political life and return to the national homeland, inevitably evoked a material change in the mental attitude of the Jewish people towards Jewish Law, a law possessing, as I have already said, not merely religious value but also manifest national significance. Thus a movement was mustered of Jewish lawyers and scholars and others from all ranks of society, which regarded the return of Jewish society to Jewish Law a national restoration, parallel with the restoration of the Jewish homeland and the revival of the Hebrew language.
This movement for a restoration of Jewish Law signals also a new trend in its study. From modest beginnings in the 17th century, scientific research into Jewish Law had been occupied with a variety of problems, whether of the parallelism between the Jewish legal system and other systems, the moral and philosophical theories embodied in its institutions and of its vast many-sided historical and literary expression. The common feature in all this research had been that it was pursued for its own sake, for theoretical and not for practical purposes.
Riots and Pogroms presents comparative studies of riots and pogroms in the twentieth century in Russia, Germany, Israel, India, and the United States, with a comparative, historical, and analytical introduction by the editor. The focus of the book is on the interpretive process which follows after the occurrence of riots and pogroms, rather than on the search for their causes. The concern of the editor and contributors is with the struggle for control over the meaning of riotous events, for the right to represent them properly.
List of Plates - Acknowledgements - List of Abbreviations - Ingathering of the Jews - The Golden Age of Ottoman Jewry - Decline of Ottoman Jewry in the Seventeenth and Eighteenth Centuries - Revival of Ottoman Jewry in the Nineteenth and Twentieth Centuries - The Jews of the Turkish Republic Since 1923 - Appendices - Notes - Select Bibliography - Index
The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.
Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.
Many studies suggest that courts fail to protect individual rights since they support and uphold state repressive practices during periods of emergency or confrontation. Previous studies focused on judicial policies as refelcted in judicial declarations and decisions that were fully disposed by judges and officially published. I argue that the study of out-of-court settlements and the comparison between the outcomes of settlements and the judicial rhetoric are key to understanding the behavior of courts in times of national crisis. At such times, courts may hesitate to openly confront the government on the isssue of minority rights, but they may strive to protect minorities by exerting pressure on the governmental legal apparatus and by effecting out-of-court settlements more favorable to minorities than official decisions. Thus, courts influence social practices while avoiding government or public opinion counterreactions that would impair their institutional autonomy. This argument is demonstrated in a case study of the Israeli High Court of Justice during the Palestinian Intifada.
This paper attempts first to define "modernity" within a Hindu context, using Religion in Modem India (Robert D. Baird, ed.) and Modern Religious Movements in India (J.N. Farquhar) as points of departure. Many of the Hindu thinkers studied by both the Baird and the Farquhar texts were either monastic or ascetic leaders, and of the four Hindu modern movements described in the Baird edition, three were monastic centered movements. Thus, "modern" in the Hindu context is closely interrelated with a monastic or an ascetic way of life and with monastic movements as institutions of socio-religious change. Indeed, Agehananda Bharati, in his insightful article entitled, "The Hindu Renaissance and its Apologetic Patterns" ( 1970), identifies Swami Vivekananda, who is a key figure in the Baird and Farquhar texts, as an ideal model of a scientific, modern man, who, nevertheless is a monastic. Bharati concludes that "Modern Hindus derive their knowledge of Hinduism from Vivekananda, directly or indirectly."The remainder of the paper provides an analysis of Swami Vivekananda's definition of moder nity, which he first formulated in 1893 at the World's Parliament of Religions. The paper concludes with notes on the monastic institution, the Ramakrishna Math and Mission, that Vivekananda founded in order to carry out his vision of Hindu modernity.
The Challenge of Ethnic Conflict INDIA: THE DILEMMAS OF DIVERSITY Robert L. Hardgrave, Jr. Robert L. Hardgrave, Jr. is the Temple Professor of the Humanities in Government and Asian Studies at the University of Texas, Austin. His numerous publications include India Under Pressure (1984) and (with Stanley A. Kochanek) India: Government and Politics in a Developing Nation (5th ed., 1993). India came to independence in 1947 amidst the trauma of partition. The nationalist movement, led by Mohandas K. Gandhi and Jawaharlal Nehru, aimed to gather what was then British India plus the 562 princely states under British paramountcy into a secular and democratic state. But Mohammad Ali Jinnah, leader of the Muslim League, feared that his coreligionists, who made up almost a quarter of the subcontinent's population, would find themselves a permanent and embattled minority in a Hindu-dominated land. For Jinnah, India was "two nations," Hindu and Muslim, and he was determined that Muslims should secure protection in an Islamic state of Pakistan, made up of the Muslim-majority areas of India. In the violence that accompanied partition, some half a million people were killed, while upwards of 11 million Hindus and Muslims crossed the newly created borders as refugees. But even all this bloodshed and suffering did not settle matters, for the creation of Pakistan left nearly half of the subcontinent's Muslims in India. Muslims today are India's largest religious minority, accounting for 11 percent of the total population. Among other religious groups, the Sikhs, some of whom in 1947 had sought an independent Sikhistan, are concentrated in the northern state of Punjab and number less than 2 percent of India's population. Christians, Buddhists, Jains, Parsees, and Jews add further richness to India's religious diversity, but their comparatively small numbers only accentuate the overwhelming proportion of Hindus, with some 83 percent of the population. The Hindus, although they share a common religious tradition, are Journal of Democracy VoL 4, No. 4 October 1993 Robert L. Hardgrave, Jr. 55 themselves divided into a myriad of sects and are socially segmented by thousands of castes and subcastes, hierarchically ranked according to tradition and regionally organized. The geographic regions of India are linguistically and culturally distinct. There are more than a dozen major languages, grouped into those of Dravidian South India and Indo- European (or Aryan) North India; Hindi, an Indo-European language spoken by 30 percent of all Indians, is recognized by the Constitution of 1950 as the official language (along with English). In addition to the many Indo-European and Dravidian languages and dialects, there are various tribal languages spoken by peoples across India, most notably in southern Bihar and in the seven states of the Northeast. In confronting this staggering diversity, the framers of India's Constitution sought to shape an overarching Indian identity even as they acknowledged the reality of pluralism by guaranteeing fundamental rights, in some cases through specific provisions for the protection of minorities. These include freedom of religion (Articles 25-28); the right of any section of citizens to use and conserve their "distinct language, script or culture" (Article 29); and the right of "all minorities, whether based on religion or language," to establish and administer educational institutions of their choice (Article 30). With respect to caste, the Constitution declared the practice of "untouchability" unlawful (Article 17). To provide compensatory justice and open up opportunity, a certain percentage of admissions to colleges and universities and places in government employment were "reserved" for so-called Scheduled Castes (untouchables) and Scheduled (aboriginal) Tribes (Article 335). Similarly, to ensure adequate political representation, Scheduled Castes and Tribes were allotted reserved seats in the Lok Sabha, the lower house of Parliament, and in state legislatures in proportion to their numbers (Article 330). These reservations were to have ended in 1960, but they have been extended by constitutional amendment at ten-year intervals. Federalism and the Party System Despite enormous pressures, India has been remarkably successful in accommodating cultural diversity and managing ethnic conflict through democratic institutions. This success has in large part been the product of that diversity itself, for at the national level -- what Indians call "the center"---no single ethnic group can...
Fundamental Pakistan
- Ahmed
Two States for Two Nations
- Caspi
Judicial Activism and Public Interest Litigation
- Bhagwati
Ministry Must Justify not Registering Ethiopian Family as Jews
- Shapiro
A Concept of Insecurity
- Agnivesh
Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience
- Cunningham
Ulema to Launch Campaign for Personal Law
- Shahin
- Lawrence
Barak Creates Wide Coalition with 7 Parties
- Sontag
Russian Immigrants Believe PM Caves in to Haredim
- Cohen
Distant Voices in the Courts of India: Transformation of Standing in Public Interest Litigation
- Susman
Consular Marriages: An Unorthodox Solution
- Prince-Gibson
Law as Struggle: Public Interest Law in India
- Dhavan
Justice Sans Lawyers: Some Indian Experiments
- Menon
The Challenge of Ethnic Conflict
- Hargrave
Christian Prayer Service Attacked
- Murthy
Religious Rights Versus Women's Rights in India: A Test Case for International Human Rights Law
- Rahman
Political Activism (II): Post-Emergency Judicial Activism: Liberty and Good Governance
- Sathe