Published online by Cambridge University Press: 04 July 2014
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.
3 For an old but still relevant book on modernity in India, see Rudolph, Lloyd, Modernity of Tradition (Chicago, University of Chicago Press, 1967)Google Scholar; also see Gupta, S.P., Modern India and Progress in Science and Technology (New Delhi, Vikas, 1979)Google Scholar; Nair, T.P.S., ed., Modern India, Society and Politics in Transition (New Delhi, Inter-India Publications, 1988)Google Scholar; Yishai, Yael, “Civil Society in Transition: Interest Politics in Israel” (1988) 555 The Annals of the American Academy of Political and Social Science 147–62.CrossRefGoogle Scholar
4 For a discussion of the Haskalah, see Katz, Jacob, ed., Toward Modernity: The European Jewish Model (New Brunswick, Transaction Books, 1987)Google Scholar; Goodman, Saul, ed., The Faith of Secular Jews (New York, Ktav Press, 1976).Google Scholar For a discussion on the Hindu renaissance and a literature review of important writers in this area, see Miller, David, “Modernity in Hindu Monasticism” (1999) 34 J. Asian and African Studies 111–26.CrossRefGoogle Scholar
5 Brass, Paul R., Riots and Pogroms (New York, New York University Press, 1996)CrossRefGoogle Scholar; Landau, David, Piety and Power: The World of Jewish Fundamentalism (New York, Hill and Wang, 1993)Google Scholar; Silberstein, Laurence, ed., Jewish Fundamentalism in Comparative Perspective (New York, New York University Press, 1993).Google Scholar
8 Kohli, Atul, “India”, in Kesselman, Mark, Krieger, Joel and Joseph, William, eds., Comparative Politics at the Crossroads (Lexington, D.C. Heath, 1996) 472–73Google Scholar; Krislov, Samuel, “Israel”, in Shively, W. Philips, ed., Comparative Governance (New York, McGraw-Hill, 1997) 328Google Scholar; Sontag, Deborah, “Barak Creates Wide Coalition with 7 Parties”, in The New York Times (internet edition), July 1, 1999.Google Scholar
9 Epp, Charles R., The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago, University of Chicago Press, 1998) 71–89Google Scholar; Austin, Granville, The Indian Constitution: Cornerstone of a Nation (Oxford, Clarendon Press, 1966) 164–84Google Scholar; Baker, H.E., The Legal System of Israel (Jerusalem, Israel University Press, 1967) 197–207, 232–43Google Scholar; Edelman, Martin, Courts, Politics, and Culture in Israel (Charlottesville, University of Virginia Press, 1994) 46.Google Scholar
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.
12 For the most part, we focus on how personal laws affect the major religious community 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. There are Muslim courts of first instance in which Muslim judges (qadis) apply Muslim law (shari'a) to personal law cases. There is also a shari'a court of appeals in Jerusalem. (There is no ulema or set of formal religious scholars who are affiliated with religious institutions in Israel. Nor is there a community of muftis or religious specialists in Islamic law. Thus, qadis are the main authorities who interpret and apply the shari'a in Israel.) These Muslim courts are left to deal with various personal law issues including: dower for brides-to-be; maintenance for divorced women; unilateral divorces by men (talaq); and succession. The qadis, moreover, have a significant impact on these four areas. With respect to the first two issues, evidence indicates that the qadis have encouraged the curtailing of dower and promoted equitable maintenance payments to divorced women. With respect to the last two issues, evidence suggests that the qadis have been unwilling to abolish completely the practice of talaq and that women have yet to be given the same rights to inherit as men. For further information on Muslim courts, see: Edelman, , Courts, Politics, and Culture, supra n. 9, at 77–88Google Scholar; Lavish, Aharon, Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of Shari'a Courts in Israel (New York, John Wiley & Sons, 1975)Google Scholar; Brown, Nathan, “Sharia and State in the Modern Muslim Middle East” (1997) 29 Int'l J. Middle East Studies 359–76CrossRefGoogle Scholar; Reiter, Yitzhak, Islamic Institutions in Jerusalem: Palestinian Muslim Organization under Jordanian and Israeli Rule (Boston, Kluwer Law International and Jerusalem Institute for Israel Studies, 1997)Google Scholar; Doi, Abdur Rahman I., Shari'ah and the Islamic Law (London, Ta Ha Pub., 1984)Google Scholar; Esposito, John L., Women in Muslim Family Law (Syracuse, Syracuse University Press, 1982)Google Scholar; Sonbol, Amira El Azhary, Women, the Family, and Divorce in Islamic History (Syracuse, Syracuse University Press, 1996).Google Scholar
13 Vitta, Edouardo, The Conflict of Laws in Matters of Personal Status in Palestine (Tel Aviv, S. Bursi, 1947) 14.Google Scholar
14 Hooker, M.B., Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford, Claredon Press, 1975)Google Scholar; Mansfield, John H., “The Personal Laws or a Uniform Civil Code?”, in Baird, Robert, ed., Religion and Law in Independent India (New Delhi, Manohar Publishers, 1993) 139Google Scholar; Jain, M.P., Outlines of Indian Legal History (Bombay, Tripathi, 1981) 369–70; 393–94.Google Scholar
15 Edelman, , Courts, Politics and Culture, supra n. 9, at 52–53Google Scholar; Mansfield, “Personal Laws”, supra n. 14, at 144; for more on the jurisdiction of personal law see: Galanter, “The Displacement of Traditional Law in Modern India”, in Law and Society, supra n. 1; Derrett, J.D.M., Religion, Law and State in India (London, Faber & Faber, 1968)Google Scholar; Derrett, Essays in Classical, supra n. 10; Mahmood, Tahir, Muslim Personal Law, Role of the State in the Indian Subcontinent (Nagpur, All-India Reporter, 1983)Google Scholar; Mahmood, Tahir, Personal Laws in Crisis (New Delhi, Manohar, 1986)Google Scholar; Dhavan, Rajeev, “Religious Freedom in India” (1987) 35 Am. J. Comp. L. 209–54CrossRefGoogle Scholar; Englard, Izhak, “Law and Religion in Israel” (1987) 35 Am. J. Comp. L. 125–208.CrossRefGoogle Scholar
16 Mansfield, “Personal Laws”, supra n. 14, at 148–57.
21 Mansfield, “Personal Laws”, supra n. 14, at 146–47.
23 Bengal Regulation of 1772. By 1793, the language was amended to ‘Mohamadan Laws’ and ‘Hindu Laws’. Regulation IV of 1793, sec. 15.
24 Mansfield, “Personal Laws”, supra n. 14, at 163.
27 On the transformation of Indian personal law, see Galanter, “The Displacement of Traditional Law in Modern India”, in Law and Society; supra n. 1; Derrett, , Religion, Law and State in India, supra n. 15, at 274–320.Google Scholar
28 Ibid.; also see The Shari'a (Application) Act of India of 1937 which according to Derrett “was reactionary and tended entirely to the consolidation and unification of that [Muslim] community in terms of its personal law”. Derrett, , Religion, Law and State in India, supra n. 15, at 323.Google Scholar
29 Mansfield, “Personal Laws”, supra n. 14, at 148–50.
30 Art. 44, The Constitution of India. But see ibid. Mansfield makes the argument that the 7th Schedule of the Constitution (Item 5 List III), and Article 44 might also lend support for the continuation of personal laws in the country. In addition, Mansfield argues that the language in Article 372, sections 1 and 3, along with Article 13 (19) indicates that the framers intended for “laws in force” prior to 1947 (which included personal laws) to remain valid so long as they did not conflict with the Fundamental Rights section of the Constitution.
31 State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.
32 Galanter, “The Displacement of Traditional Law in India”, in Law and Society, supra n. 1.
33 Ibid.Varnas refer to the four great estates or divisions of Hindu socio-legal theory, often mistranslated as caste. Anglo-Hindu law contained a number of rules that differed by varna.
35 On the concept of tutelary laws, see Schneider, Carl E., “Moral Discourse, Bioethics, and the Law” (1996) 26 The Hastings Center Report 37–39CrossRefGoogle ScholarPubMed; Oropeza, Luis, Tutelary Pluralism: A Critical Approach to Venezuelan Democracy (Cambridge, Center for International Studies, Harvard, 1983)Google Scholar; for a more general discussion, see Dahl, Robert, Polyarchy: Participation and Opposition (New Haven, Yale University Press, 1971) 3.Google Scholar
36 Mansfield, “Personal Laws”, supra n. 14, at 168.
37 Galanter, “The Displacement of Traditional Law in India”, in Law and Society, supra n. 1.
39 Special Marriage Act of 1872. Also see, Derrett, J.D.M., Hindu Law Past and Present (Calcutta, A. Mukharjee & Co., 1957) 73.Google Scholar
42 The laws include: The Converts' Marriage Dissolution Act, 1866; The Indian Divorce Act, 1869; The Indian Christian Marriage Act, 1872; The Kazis Act, 1880; The Anand Marriage Act, 1909; The Child Marriage Restraint Act, 1929; The Parsi Marriage and Divorce Act, 1936; The Dissolution of Muslim Marriage Act, 1939; The Special Marriage Act, 1954; The Hindu Marriage Act, 1955; The Foreign Marriage Act, 1969; and The Muslim Women's Protection Act, 1986.
43 Interviews by the second author with leaders of the Multiple Action Research Group, All-India Democratic Women's Association, and All-India Women's Association.
45 Rahman, Anika, “Religious Rights Versus Women's Rights in India: A Test Case for International Human Rights Law” (1990) 28 Columbia J. Transnational L. 473Google Scholar; Raj, S., ed., Quest for Gender Justice: A Critique of the Status of Women in India (Madras, T.R. Publications, 1991)Google Scholar; Engineer, Asghar Ali, ed., Problems of Muslim Women in India (London, Sangam, 1995).Google Scholar
46 These two articles propound the fundamental rights of equality. Article 14 states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 15(1) states: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.
47 Mansfield, “Personal Law v. Uniform Civil Code”, at 140.
49 “Temple, Art. 370 not on Campaign Agenda: PM”, Times of India (internet edition), 24 August 1999. In this article there is a direct quote from BJP party leader, K.N. Govindacharya, who admits that the BJP “has not come out with its own manifesto” with regard to a uniform civil code.
51 Agrawala, Rajkumari, “Uniform Civil Code: A Formula Not a Solution”, in Mahmood, Tahir, ed., Family Law and Social Change (Bombay, M.N. Tripathi, 1975)Google Scholar; Master-Moos, , “The Personal Law of Parsees”, in Khodie, Namada, ed., Readings in Uniform Civil Code (Bombay, Thacker, 1975)Google Scholar; Mahmood, Personal Law in Crisis, supra n. 15.
52 Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 945–55.
53 A.I.R 1985 S.C. 946–47; also see, Kishwar, Madhu, “Pro Women or Anti-Muslim? The Shah Bano Controversy”, in Kishwar, Madhu, Religion at the Service of Nationalism (Delhi, Oxford University Press, 1998) 208Google Scholar; Hargrave, Robert, “The Challenge of Ethnic Conflict” (1993) 4 Journal of Democracy 54–68.Google Scholar
54 A.I.R. 1985 S.C. 947. For a discussion on talaq see n. 12. Note, a husband upon saying a phrase such as “I divorce you”, or “Tou are divorced”, three times may end the marriage. See Agnus, Flavia, Law and Gender Inequality: The Politics of Women's Rights in India (Delhi, Oxford University Press, 1999) 111–12Google Scholar; Lawrence, Bruce, Shattering the Myth (Princeton, Princeton University Press, 1998) 131Google Scholar; Kishwar, , Religion at the Service, supra n. 53, at 217.Google Scholar
55 A.I.R. 1985 S.C. 947.
56 Sec. 125, All India Criminal Procedure Code.
57 A.I.R. 1985 S.C. 947.
59 Sec. 127 (3) (b), All India Criminal Procedure Code. This purpose of this section was to accommodate dower or mehr.
60 A.I.R. 1985 S.C. 950–52.
64 Ibid., at 954–55. Although we attribute no causal importance to this fact, it is interesting to note that all of the five justices sitting in this case were at least nominally Hindus.
66 This was not the first instance of the Supreme Court attempting to define the essentials of a religious tradition. In Sastri Yagnapurushdasji v. Muidas Bhundardas Vaishya (also known as the Satsangis case, A.I.R. 1966 S.C. 1119), an earlier Supreme Court propounded its view of the essence of Hinduism to invalidate the practices of a Hindu sect. Galanter, “Hinduism, Secularism, and the Judiciary”, in Law and Society, supra n. 1.
68 For an argument that Muslim law may, in fact, be more beneficial to women than the Indian Criminal Procedure Code, see Akhtar, Saleem, Shah Bano Judgment in Islamic Perspective (New Delhi, Kitab Bhavan, 1994) 243–61.Google Scholar
69 A. I. R. 1979 S.C. 362.
70 A. I. R. 1980 S.C. 1730.
72 Epp, The Rights Revolution, supra n. 9 88; Latifi, Danial, “The Muslim Women Bill”, in Engineer, Asghar Ali, ed., The Shah Bano Controversy, supra n. 67.Google Scholar
73 Since 1986 there have been two unreported cases, described by Flavia Agnus, in which an Allahabad High Court judge deemed talaq-divorces unconstitutional. See, Agnus, Law and Gender Equality, supra n. 54, at 112–16. The unreported cases are: Rahmat Ullah v. State of U.P., Writ Petition no. 45 of 1993, and Khatoon Nisa v. State of U.P., Writ Petition no. 57 of 1993.
74 Shahin, Sultan, “Ulema to Launch Campaign for Personal Law”, Times of India (internet edition), 6 May 1999.Google Scholar At present, case cite unavailable to authors. The authors have contacted sources in India to provide cite. (This case was decided by a two-judge bench.)
76 For a discussion of this position, see Agnus, , Law and Gender, supra n. 54, at 129–40Google Scholar; Hinnells, J., “Parsi Attitudes to Religious Pluralism”, in Coward, Howard G., ed., Modern Indian Responses to Religious Pluralism (Albany, New York, 1987)Google Scholar; also see more generally Shabbir, M. and Manchanda, S., Parsi Law in India (Allahabad, Law Books Company, 1991).Google Scholar
78 A.I.R. 1986 SC 1011.
80 The last half of 1998 and the first half of 1999 saw widespread reports of attacks on Christians in India. For a sample of articles, see: Murthy, Dakshina, “Christian Prayer Service Attacked”, Hindustan Times (internet edition), 24 November 1998Google Scholar; “23 Million Christians to Protest Today”, Hindustan Times (internet edition), 4 December 1998; “CBI Accuses 18 in Stains Murder Case”, Times of India (internet edition), 23 June 1999; “Panel Presents Admission-Related Facts”, Times of India (internet edition), 17 July 1999.
81 Galanter, Marc, Competing Equalities (Berkeley, University of California Press, 1984) 41–42.Google Scholar
86 A. I. R. 1951 S.C. 229.
87 A. I. R. 1963 S.C. 649.
88 A. I. R. 1964 S.C. 1823.
91 Ibid., at 187–89. Parikh describes how Singh's policy decision sparked a chain of events that eventually led to the downfall of his government.
92 Indra Sawhney v. Union of India, A. I. R. 1993 S.C. 477
93 Ibid., at 536–54. Note, the Court also stressed the importance of Article 16(1) of the Constitution, which guarantees “equality of opportunity in matters of public employment”. The Court noted that in order eventually to arrive at a situation where there could be equal opportunity for all, the government's plan needed to be implemented.
94 Agnivesh, Swami, “A Concept of Insecurity”, Hindustan Times (internet edition), 23 January 1999.Google Scholar In this article, Agnivesh is critical of converts to Christianity who “shout for government charity”; also consider, Webster, John, The Dalit Christians: A History (Delhi, ISPCK, 1994).Google Scholar
97 Jayanth Krishnan's interview with Dr. Godfrey Shiri, November 14, 1998, Bangalore, India.
98 Rajagopal v. Armugam, A. I. R. 1969 S.C. 101. Obvious questions emerge, including: What constitutes acceptance? Is acceptance required of the whole caste or just a section of it? See Galanter, , Competing Equalities, supra n. 81, at 328–29.Google Scholar
99 Wilson Reade v. C.S. Booth, A. I. R. 1958 Ass. 128, Horo v. Jahan Ara, A. I. R. 1972 S.C. 1840. But see, Urmila Ginda v. Union of India, A. I. R. 1975 Del. 115, where the Delhi High Court ruled that a high caste woman who sought membership into her husband's lower caste group for the purposes of seeking a government-reserved post, could not be admitted into this lower caste, even by the acceptance of its members. See also, Mrs. Vaishali v. Union of India, 1978 80 Bom LR 182; Smt. D. Neelima v. The Dean of P.G. Studies, A. I. R. 1993 Andh Pra 299.
100 See, Shantha Kumar v. State of Mysore, 1971 Mys. L. J. 21; also see, Galanter, Competing Equalities, supra n. 81, at 339–41; also see, Natraja v. Selection Committee, 1971 1 Mys LJ 226; R. Srinivasa v. Chairman, Selection Committee, A. I. R. 1981 Karnataka 86; A.S. Sailaja v. Kurnool Medical College Kurnoon, A. I. R. 1986 Andh Pra 209; N. B. Rao v. Principal, Osmania Medical College, A. I. R. 1986 Andh Pra 196. But also see, Khazan Singh v. Union of India, A. I. R. 1980 Delhi 60, where the court ruled that an adoption alone into a Scheduled Caste family was enough to acquire benefits.
101 Valsamma Paul v. Cochin University, A. I. R. 1996 1011.
103 Khilnani, Idea of India, supra n. 6, at 37.
104 Arian, Asher, Politics in Israel: The Second Generation (Chatham, Chatham House, 1989) 18.Google Scholar
106 Krislov, “Israel”, supra n. 8, at 302.
107 According to statistics, the population of Israel is approximately six million people. Non-Jewish populations include Muslims (nearly fifteen percent of the total population), Christians (approximately two percent) and Druze (about 1.6 percent). Figures are from Israeli Central Bureau of Statistics.
112 Informally, the scope of rabbinic and communal control extended further to regulation of property employment, and consumption. As Shaw states, “Together Jewish law and custom, community regulations and customs and judicial decisions constituted what amounted to a code of law and jurisprudence which regulated in great detail all religious, social and economic areas of life in each Jewish community as well in the millet as a whole. The kahal enforced them with a kind of policy surveillance to make certain that they were applied, whether in the temple, the school, the marketplace, or the home. Various penalties such as herem (excommunication) and niddui (bans) were imposed by the bet din courts and by rabbis against those who violated the laws and regulations or their provisions and instructions. Prisons were maintained in the synagogue buildings, usually on the ground floors directly beneath the sanctuaries, to punish members who violated the community regulations and laws, while violators of the Sultan's laws and those requiring execution and more severe or lengthy punishments were turned over to Ottoman police and prisons”. Shaw, Stanford J., The Jews of the Ottoman Empire and the Turkish Republic (New York, New York University Press, 1991) 65.CrossRefGoogle Scholar
114 Among other things, the status quo agreement provides for: the Sabbath as the official holiday for state institutions; kashrut in all state institutions; rabbinical control over family law; and a two-track educational system where Jews may opt to send their children to orthodox religious schools that are only minimally monitored by the state. Ibid., at 5; Arian, Asher, Politics in Israel, supra n. 104, at 238.Google Scholar
115 See Edelman, , Courts, Politics, and Culture, supra n. 9, at 52–53Google Scholar, for a useful discussion of this evolution of Jewish law from the time of the Ottomans through the time of the British Mandate and until 1955.
116 Yet, see ibid., 54–57, where Edelman argues that the debate over the jurisdictional authority of the rabbinical courts is just one source of tension between the Orthodox and non-Orthodox communities. Another source, he contends, may be in the overall interpretation of what political culture and national identity mean in Israel to these communities. For the traditional Orthodoxy, religion is inseparable from Israeli political culture and Israeli national identity, while for the less or non-religious segment of the population, religion is separable from these other two concepts.
118 Yishai, Yael, Between the Flag and the Banner: Women in Israeli Politics (SUNY, Albany, 1997) 186.Google Scholar
119 Raday, Frances, “Religion, Multiculturalism and Equality: The Israeli Case” (1996) 25 Isr. Yrbk Hum. Rts. 211, 214–15.Google Scholar
120 Edelman, supra n. 9, at 53; also see Elon, M., “The Sources and Nature of Jewish Law and its Application in the State of Israel” (1968) 3 Is. L.R. 416–53.Google Scholar
123 Recently immigrated Ethiopians and Russians who have come to Israel under the “law of return” continually find that the rabbinical courts often refuse to recognize their Jewish identity for the purposes of marriage. Interviews with members from the Association for Civil Rights in Israel (October 1998); also for a sample of articles on this subject, see Cohen, Aryeh Dean, “Russian Immigrants Believe PM Caves in to Haredim”, The Jerusalem Post (internet edition), 12 May 1999Google Scholar; Shapiro, Haim, “Ministry Must Justify not Registering Ethiopian Family as Jews”, The Jerusalem Post (internet edition), 22 June 1999.Google Scholar
126 Funk and Schlesinger v. Minister of Internal Affairs (1963) 17 P.D. 222). As of February 2000, another channel opened for a limited group of Israelis. The Interior Ministry on 13 February 2000, announced that it will “now recognize consular marriages for couples at least one of whom is a citizen of a state that authorizes its consuls to perform such marriages”. Prince-Gibson, Etta, “Consular Marriages: An Unorthodox Solution”, The Jerusalem Post, 18 February 2000.Google Scholar Critics suggest that the new policy does not go far enough in providing the basic right of marriage to all Israelis. The article notes that nearly a quarter-million citizens still cannot marry even with this new policy.
129 Today, divorce most frequently occurs as a result of both parties mutually agreeing to end the marriage. (Jayanth Krishnan's interviews with lawyers from four of the country's most active women's organizations: Women's International Zionist Organization, Israeli Women's Network, Emunah, and Na'mat, October, 1998).
134 Sharfman, , Living Without a Constitution, supra n. 124, at 79.Google Scholar Also see internet edition of the Jerusalem Post, 1 March 1999, where the article entitled, “Chained Women to Picket Rabbinate Today”, reports stories very similar to this scenario still occurring throughout the country.
136 Dayyanim is the Hebrew word for rabbinical court judges. These particular judges are state officials. In order to serve they must take a competitive examination administered by the Chief Rabbinical Council. Members of a nomination committee within the Council then select the dayyanim. Edelman, , Courts, Politics, and Culture, supra n. 9, at 53.Google Scholar
137 As opposed to restrictions on agunot, “the male divorce refusenik, on the other hand, can start a new family without fearing that the children born to the union will be bastards [mamzerim] (meaning that they can only marry other bastards [mamzerim]”. Sharfman, , Living Without a Constitution, supra n. 124, at 79.Google Scholar In addition, the problem of the agunah, (the married woman who separates from her husband but cannot remarry) is a classic and perturbing problem of Jewish law. Women whose husbands refuse a divorce are not the only agunot: the other major instance is the abandoned woman who is unable to prove that her husband is dead.
139 Rufeisen v. Minister of the Interior (Brother Daniel Case) (1962) 16 P.D. 2428.
140 The Law of Return is a statute that was passed by the 1950 Knesset. The law permits every Jew in the world to immigrate to Israel. As Asher Arian eloquently states, “the Law of Return is the concrete expression of the prophetic vision of the ‘ingathering of the exiles.’” (Arian, , Second Republic, p. 10Google Scholar).
141 Dotan, “Judicial Review and Political Accountability”, supra n. 127.
142 Keren v. Minister for Affairs of Religion (1989) 43(ii) P.D. 661.
143 Adguaitzo v. General Rabbinical Council of Israel (1989) 43(ii) P.D. 152.
144 Miller v Minister of Interior (1986) 40(iii) P.D. 436.
145 Bauli v. Grand Rabbinical Court (1994) 48(ii) P.D. 221; ruling later reaffirmed in Aknin v. District Rabbinical Court of Haifa et al. (1996) 50(i) P.D. 370.
147 We define “second personal laws” as issues including matters relating to education, conversion, burial, and exemption from military service that turn on the relation of public law to Jewish law and those who claim to interpret it.
148 The Jerusalem Post (internet edition) “A List of Haredi Grievances”, 12 February 1999. Also see, response by ultra-orthodox to Hoffman et al. v. The Guardian of the Western Wall, (1994) 48(ii) P.D. 263, in The Jerusalem Post, “Women of the Wall Win High Court Hearing” 18 February 1999. And see, Caspi, Arie, “Two States for Two Nations”, Haaretz 19 February 1999.Google Scholar
149 This term “decay” has been used by many scholars who study political culture. It refers to the destabilization or slow destruction of a political, social, or cultural community as a result of institutional in-fighting and instability. See, James Manor, “India”, in Shively's Comparative Governance, supra n. 8, at 80. Also see Huntington, Samuel P., Political Order in Changing Societies (New Haven, Yale University Press, 1980).Google Scholar
150 Dotan demonstrates that the Israeli state judiciary has been an active policy-maker in a range of rights-based matters. See, Dotan, “Judicial Review and Political Accountability”, supra n. 127, and see, Dotan, Yoav, “Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice During the Intifada” (1999) 33 Law and Society R. 319–63.CrossRefGoogle Scholar
151 Baar, Carl, “Social Action Litigation in India: The Operations and Limitations of the World's Most Active Judiciary” (1990) 19 Policy Studies J. 140–50CrossRefGoogle Scholar; Baxi, Upendra, Courage, Craft, and Contention: The Supreme Court in the 1980's (Bombay, M.N. Tripathi, 1985)Google Scholar; Bhagwati, P.N., “Judicial Activism and Public Interest Litigation” (1985) 23 Columbia J. Transnational L. 561–77Google Scholar; Cassels, Jamie, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?” (1989) 37 Am. J. Comp. L. 495CrossRefGoogle Scholar; Cunningham, Clark, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience” (1987) 29 J. Indian Law Instit. 494–523Google Scholar; Dhavan, Rajeev, “Law as Struggle: Public Interest Law in India”, (1994) 36 J. Indian Law Instit. 302–38Google Scholar; Menon, Madhava, “Justice Sans Lawyers: Some Indian Experiments” (1985) 12 Indian Bar Rev. 444Google Scholar; Peiris, G.L., “Public Interest Litigation in the Indian Subcontinent: Current Dimensions” (1991) 40 Intl and Comp. L.Q. 66–91CrossRefGoogle Scholar; Sathe, S.P., “Judicial Activism” (1998) 10 J. Indian School of Political Economy 399–441 (1998Google Scholar); Sathe, S.P., “Political Activism (II): Post-Emergency Judicial Activism: Liberty and Good Governance” (1998) 10 J. Indian School of Political Economy 603–40Google Scholar; Susman, Susan D., “Distant Voices in the Courts of India: Transformation of Standing in Public Interest Litigation” (1994) 13 Wisconsin Intl L.J. 58–103.Google Scholar
152 Indeed, “activism” may be deployed to avoid confronting the tension between personal law and gender equality. A recent example is Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228, where the Supreme Court, in the face of palpable preference for fathers over mothers in a provision of the Hindu Minority and Guardianship Act, 1956, concocts an imaginative but implausible reading of the statutory language to ward off the need to measure the statute against constitutional standards.
153 Edelman, Courts, Politics, and Culture, supra n. 9, at chap. 3. See also Dotan, “Judicial Rhetoric, Government Lawyers, and Human Rights”, supra n. 150.
154 For a discussion of the failure of early efforts at revival, see Marc Galanter, “The Aborted Restoration of ‘Indigenous’ Law in India”, in Law and Society in Modern India.
156 Our discussion on freedom draws on Berlin's, Isaiah, Four Essays on Liberty (Oxford, Oxford University Press, 1969) 122–34.Google Scholar
157 Kishwar, , Religion at the Service, supra n. 53, at 245–46Google Scholar; Tedeschi, Guido, Studies in Israel Law (Jerusalem, Hebrew University Students' Press, 1960) 238–88Google Scholar; Mahmood, T., “Common Civil Code, Personal Laws and Religious Minorities”, in Imam's, Mohammed, ed., Minorities and the Law (Bombay, Tripathi, 1972) 60–65Google Scholar; Derrett, J.D.M., “The Indian Civil Code or Code of Family Law: Practical Propositions”, in Khodie, N., ed., Readings in Uniform Civil Code, supra n. 51, at 28–30.Google Scholar
158 Mansfield, “Personal Law v. Uniform Civil Code”, at 169.
159 On the recent debate over secularism in India, see the various articles in Part IV of Bhargava, Rajeev, ed., Secularism and its Critics (Delhi, Oxford University Press, 1998)Google Scholar; Cossman, Brenda and Kapur, Ratna, Secularism's Last Sigh: Hindutva and the (Mis) Rule of Law (Delhi, Oxford University Press, 1999).Google Scholar
Full text views reflects PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views.