Traditional law—Hindu, Muslim and customary—has been almost entirely displaced from the modern Indian legal system. Today, the classical dharmaśāstra component of Hindu law is almost completely obliterated. It remains the original source of various rules of family law. But these rules are intermixed with rules from other sources and are administered in the common-law style, isolated from śāstric techniques of interpretation and procedure. In other fields of law, dharmaśāstra is not employed as a source of precedent, analogy or inspiration. As a procedural-technical system of laws, a corpus of doctrines, techniques and institutions, dharmasastra is no longer functioning. This is equally true of Muslim law. 3 The local customary component of traditional law is also a source of official rules at a few isolated points, but it too has been abandoned as a living source of law.

Professor Smith has produced a comprehensive survey1 of the relations between state and religion in India which will be of great value to students of modern Indian government and politics as well as of religion. Moreover, this useful, stimulating and very readable study raises questions of compelling, interest for all who are concerned with problems of “church and state”. India, the seat of a civilization renowned for elaboration of religious thought and pervasiveness of religious observance has, even by Professor Smith's rigorous standards, successfully established a secular state. In this volume, Professor Smith has undertaken to explain how this has come about, to analyze the Indian achievement and the problems that accompany it and, finally, to indicate how India may advance to the full realization of that “true secularism” which he so enthusiastically endorses.

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.

Discussions of punishment and its role in modern societies often proceed as if punishment is co-extensive with the criminal justice system. Instead, I want to begin with the observation that a large part of punishment as a social institution is outside the criminal law — indeed much of it lies outside the legal system. To understand the working of punishment in our societies and what the law can do with it and about it requires that we examine the entire span of punishment, not just that part which epitomizes it in legal theory.

What is punishment? I hesitate to get into a definitional struggle on what must be well-worn turf. It seems to me that we can identify a core idea of “bad for bad” — i.e., the imposition of a harm, injury, deprivation or other bad thing on someone on the ground of the commission of some offence. The infliction of harm on the offender may be viewed as a goal (or as proximate to a goal of justice) or it may be viewed instrumentally as a means to social betterment, through rehabilitation, incapacitation, deterrence, reassurance, and so forth. Thus, the harm may be thought to redound to the offender's ultimate benefit or that of the society.