Religious personal laws as non-state laws: implications for gender justice

Archana Parashar*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

14 Citations (Scopus)

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.

Original languageEnglish
Pages (from-to)5-23
Number of pages19
JournalJournal of Legal Pluralism and Unofficial Law
Volume45
Issue number1
DOIs
Publication statusPublished - 2013

Keywords

  • gender justice
  • legal pluralism
  • non-state laws
  • religious personal laws
  • role of legal scholars in discourse formation
  • secular state

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