Personal Law and Human Rights in India and Israel
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Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2000 Personal Law and Human Rights in India and Israel Jayanth K. Krishnan Indiana University Maurer School of Law, [email protected] Marc Galanter University of Wisconsin - Madison Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Comparative and Foreign Law Commons, and the Human Rights Law Commons Recommended Citation Krishnan, Jayanth K. and Galanter, Marc, "Personal Law and Human Rights in India and Israel" (2000). Articles by Maurer Faculty. 419. https://www.repository.law.indiana.edu/facpub/419 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. PERSONAL LAW AND HUMAN RIGHTS IN INDIA AND ISRAEL Marc Galanterand Jayanth Krishnan* Although India and Israel differ dramatically in size, population, and affluence, there are many important similarities. Each is the contem- porary 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 subordi- nated to a hegemonic European Christian culture;' each had an earlier experience with victorious, expansive Islam; 2 each has reached an un- easy but flourishing accommodation with the secular, scientific moder- 3 nity of the West. * Marc Galanter is the John & Rylla Bosshard Professor of Law and Professor of South Asian Studies at the University of Wisconsin-Madison. Jay Krishnan is Assistant Professor of Law at William Mitchell College of Law, St. Paul, Minnesota. The authors would like to thank Frances Raday, Yoav Dotan, Laura Jenkins, Gerald Larson, the participants at the Religion, Secularism, and Human Rights Conference, Hebrew University, February 2000, and the participants at the Personal Law and Secularism Conference, Indiana University, March 1999. The authors can be con- tacted at [email protected] or [email protected]. 1 Marc Galanter, "The Displacement of Traditional Law in Modern India", in Law and Society in Modern India (Oxford, Oxford University Press, 1989); Asher Arian, The Second Republic: Politics in Israel (Chatham, Chatham House Publishers, 1998) 24- 26. 2 Stanley Wolpert, A New History of India (Oxford, Oxford University Press, 1997) 149- 86; Arian, The Second Republic, supra n. 1, at 23; John L. Esposito, Islam and Politics (Syracuse, Syracuse University Press, 1991). 3 For an old but still relevant book on modernity in India, see Lloyd Rudolph, Moder- nity of Tradition (Chicago, University of Chicago Press, 1967); also see S.P. Gupta, Modern India and Progress in Science and Technology (New Delhi, Vikas, 1979); T.P.S. Nair, ed., Modern India, Society and Politics in Transition (New Delhi, Inter- India Publications, 1988); Yael Yishai, "Civil Society in Transition: Interest Politics in Israel" (1988) 555 The Annals of the American Academy of Political and Social Science 147-62. ISRAEL LAW REVIEW [Is.L.R. Vol. 34 In each case this was achieved by a movement that embraced "En- lightenment" values and in turn provoked a recoil from modernity/ rediscovery of tradition.4 In each there is a conflict between those with "modern" secular views of civil society and those revivalists or funda- mentalists who seek to restore an indigenous religiously based society. The secular nationalism that predominated in the struggle for inde- pendence and the formation of the state is now countered by powerful tides of fundamentalism., In the course of their long histories Hindu and Jewish cultures had some contact, but each had been largely peripheral to the other; they were not the major presences in each other's arenas, but at most bit players. But now in the new "global" setting at the opening of the third millennium of the common era, there is a proliferation of new connec- tions. Each has successfully absorbed elements of the culture of the Christian west, which has supplied the idiom of intensified global communications. Each is a major participant in the global scholarly/ intellectual exchange. Each has regained a political dimension and is now "represented" in the international arena by a state situated at the contested frontiers of Islamic militancy. 6 India and Israel are both new nations with multi-ethnic populations. Each emerged as a nation state in the first wave of de-colonization through a partition process that reduced the presence of its largest 7 minority and increased the preponderance of its largest religious group. Each has a Westminster-style parliamentary system - frequently popu- 4 For a discussion of the Haskalah, see Jacob Katz, ed., Toward Modernity: The EuropeanJewish Model (New Brunswick, Transaction Books, 1987); Saul Goodman, ed., The Faith of Secular Jews (New York, Ktav Press, 1976). For a discussion on the Hindu renaissance and a literature review of important writers in this area, see David Miller, "Modernity in Hindu Monasticism" (1999) 34 J. Asian and African Studies 111-26. 5 Paul R. Brass, Riots and Pogroms (New York, New York University Press, 1996); David Landau, Piety and Power: The World of Jewish Fundamentalism (New York, Hill and Wang, 1993); Laurence Silberstein, ed., Jewish Fundamentalism in Com- parative Perspective (New York, New York University Press, 1993). 6 Sunil Khilnani, The Idea of India (London, Hamish Hamilton, 1997) 194-95; Arian, The Second Republic: Politics in Israel, supra n. 1, at 28-41. 7 Wolpert, A New HistoryofIndia, supra n. 2, at 347-49; Arian, Second Republic, supra n. 1, at 24-27. No. 1, 2000] PERSONAL LAW, HUMAN RIGHTS IN INDIA AND ISRAEL 103 lated by a fragmented coalition government." Each has a legal system based on the British common law model (with an admixture of Ameri- can-style constitutionalism - more in India, less in Israel) with many lawyers and strong higher courts that are major players in conflicts about the most fiercely controverted policy issues.9 Although they differ in many particulars, these courts share broad, original jurisdiction in cases involving state action, a fascination with American law, and a practice of forthright activism. Each has a legal system that incorpo- rates in truncated form traditions of all-encompassing sacred law that, in their earlier forms at least, aspired to achieve both holiness and spiritual progress. 10 These truncated systems of sacred law are present as "personal law". In both India and Israel, the presence of these personal laws raises the question of reconciling its distinctive religious legacy with a convergent world of "universal" rights. Specifically, it involves reconciling claims for group integrity with claims for individual fulfillment and gender equality. In this paper, we compare the way that the administration of per- sonal law systems reflects and shapes the social identities of religious communities within India and Israel.1 We also compare the way that 8 Atul Kohli, "India", in Mark Kesselman, Joel Krieger and William Joseph, eds., Comparative Politicsat the Crossroads(Lexington, D.C. Heath, 1996) 472-73; Samuel Krislov, "Israel", in W. Philips Shively, ed., Comparative Governance (New York, McGraw-Hill, 1997) 328; Deborah Sontag, "Barak Creates Wide Coalition with 7 Parties", in The New York Times (internet edition), July 1, 1999. 9 Charles R. Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in ComparativePerspective (Chicago, University of Chicago Press, 1998) 71-89; Granville Austin, The Indian Constitution: Cornerstoneof a Nation (Oxford, Clarendon Press, 1966) 164-84 ; H.E. Baker, The Legal System of Israel (Jerusalem, Israel University Press, 1967) 197-207, 232-43; Martin Edelman, Courts, Politics,and Culture in Israel (Charlottesville, University of Virginia Press, 1994) 46. 10 J.D.M. Derrett, Essays in Classical and Modern Hindu Law (Leiden, Brill, vol. 4, 1978) 18-20; Izhak Englard, Religious Law in the IsraeliLegal System (Jerusalem, Hebrew University, 1975) 33-46. 11 Furthermore, comparing India and Israel is important for methodological reasons. Both countries possess variation along the key independent variable in this study - personal law systems. If we are to determine whether or not personal law systems matter, then we need to study cases where personal law systems differ, not where they are similar. Using India and Israel for our study provides an opportunity to test the importance of this variable. ISRAEL LAW REVIEW [Is.L.R. Vol. 34 these personal law regimes affect the roles, rights and burdens of women. We examine the evolution of personal law systems in India and Israel, and we focus on the way that these systems affect the religious 12 and ethnic communities that they regulate. By systems or regimes of personal law we refer to legal arrangements for the application within a single polity of several bodies of law to 12 For the most part, we focus on how personal laws affect the major religious commu- nity in each country: the Hindu community in India and the Jewish community in Israel. Because of the way the personal law system in India is structured, we see significant conflict between Hindus and Muslims. Hence, we devote some time to discussing how personal law in India affects not only the Indian Hindu community but also the Indian Muslim community. In Israel, because there is not the same degree of conflict between the various religious communities over issues involving personal status, we focus only on the country's majority Jewish population. The recognized minority religious communities in Israel are granted great autonomy to administer personal law matters. For example, the largest religious minority in Israel is the Muslim community. Muslims comprise nearly 80% of the non-Jewish population, and this community is left almost entirely alone to handle issues relating to personal status.