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Religious personal laws as non-state laws: Implications for gender justice
Abstract
This article examines the concept of religious personal laws as used in Indian legal discourse. This concept is used to denote religious laws of various communities that are claimed to be upheld but not modified by the secular state and also to refer to the religion related rules followed by communities outside of state regulation. This existence of various 'religious' laws is increasingly being described as legal pluralism. The ambiguous status of religious personal laws serves to legitimize the continued denial by the state of gender equality to women in family law matters as it creates a space for rules or laws to operate that do not conform to the Constitutional requirements and yet are enforced by the state. When legal scholars deploy this concept un-reflexively they participate in the discourse formation about religious personal laws as exceptional laws or as (progressive) examples of legal pluralism. In this way they assist the state in using the concept as a mode of governance. In this article it is argued that the legal scholars need to accept responsibility for the significant power they wield as discourse formers and acknowledge the power of naming legal practices. They are the scholars who can and should deconstruct the concept of religious personal laws. This is necessary for a serious engagement with the issue of what kind of family law would be truly non-oppressive. © 2015 The Journal of Legal Pluralism and Unofficial Law. All rights reserved.
... However, with the passage of time I have increasingly taken into account the criticism that women's movements in Asia have directed at North American feminists for their exclusive focus on gender (Mohanty et al. 1991). Additionally, I have become increasingly aware of the risk to overemphasize the role of personal laws in South Asia and thereby undermining their negative impact on women's rights (Parashar 2015). ...
Although the first appointment of women judges in Pakistan dates back to 1974, a significant appointment of female judges from 2009 onward has caused a jump in female representation to more than one third in family courts: a quiet move during the tumultuous years of the so-called Chaudhry Court. The challenge in this scenario was whether this change would only be temporary or whether it would also lead to substantial and accountable inclusion. This paper adopts mixed methods to scrutinize the extent of the adherence to the principle of gender equality in the judiciary as per international treaties to which Pakistan is signatory. It starts by retracing the historical steps of the appointment of female judges in Pakistan and then investigates the everyday interactions and preoccupations of women judges in their daily management of justice. The findings elucidate how the global agenda impacts local expectations and conceptualizations of gender representation within and beyond the state.
This article outlines the relationship between the Buddhist Vinaya (the rules of Buddhist monks) and the Dharmasastra in ancient India. My purpose is to show that the Vinaya should not be seen as a form of customary law, but as a wider system of jurisprudence linked to Dharmasastra principles and precepts. I make this argument to show that particular aspects of the Vinaya and the legal relationship with the Dharmasastra are examples of the operation 'legal pluralism'. This concept is useful as a starting point to develop analytical criteria for distinguishing various bodies of law and their interrelationships. I use this concept to show that in the context of the Vinaya and the Dharmasastra, the term 'legal pluralism' helps us to delineate the relationship between the Sangha (Buddhist order of monks) and the Dharmasastra.