Religion-based ‘Personal’ Law, Legal Pluralism and Secularity: A Field View of Adjudication under Muslim Personal Law in India

IF 0.4 Q3 LAW

Oxford Journal of Law and Religion Pub Date : 2021-09-16 DOI:10.1093/ojlr/rwab012

Suchandra Ghosh, Anindita Chakrabarti

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Abstract

The phenomenon of ‘legal pluralism’ in India is conditioned and facilitated by the democratic state’s commitment to protect religious freedom and uphold sociocultural diversity. Community-based adjudicating institutions such as the Darul Qaza (also known as Sharia court) function within this constitutional framework but every citizen also has the right to approach a state court as and when they deem necessary. So far, the discourse on Islam, personal law, and the secular state has revolved around parliamentary debates, judicial activism, and legislative changes where the focus has been on the question of Uniform Civil Code (UCC) and gender justice. The discussion on personal law has rarely paid serious academic attention to the complexities of kinship conflicts embedded in affective as well as economic and legal matrix or more importantly how they are resolved. Drawing on an ethnographic study of the jurisprudential practices of Sharia courts in Uttar Pradesh, India, the paper offers a lens to understand how conflict resolution in family matters takes place in a legal plural landscape ensconced between citizenship rights and community practices. We argue that understanding this process also offers important insights on the shifting meaning of secularism1,2 in contemporary India.

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以宗教为基础的“属人”法、法律多元主义与世俗主义:印度穆斯林属人法审判的实地考察

印度的“法律多元化”现象是由民主国家保护宗教自由和维护社会文化多样性的承诺所制约和促进的。以社区为基础的审判机构，如Darul Qaza(也称为伊斯兰教法法院)在这一宪法框架内运作，但每个公民也有权在他们认为必要时向州法院求助。到目前为止，关于伊斯兰教、属人法和世俗国家的论述一直围绕着议会辩论、司法激进主义和立法改革展开，其中重点是统一民法典(UCC)和性别正义问题。关于属人法的讨论很少在学术上认真关注嵌入情感以及经济和法律矩阵中的亲属冲突的复杂性，或者更重要的是如何解决这些冲突。通过对印度北方邦伊斯兰教法法院法律实践的民族志研究，本文提供了一个视角来理解在公民权利和社区实践之间的多元法律环境中，家庭事务中的冲突解决是如何发生的。我们认为，理解这一过程也为当代印度世俗主义意义的转变提供了重要的见解。

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来源期刊

Oxford Journal of Law and Religion LAW-

CiteScore

1.00

自引率

16.70%

发文量

期刊介绍： Recent years have witnessed a resurgence of religion in public life and a concomitant array of legal responses. This has led in turn to the proliferation of research and writing on the interaction of law and religion cutting across many disciplines. The Oxford Journal of Law and Religion (OJLR) will have a range of articles drawn from various sectors of the law and religion field, including: social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.). The OJLR reflects the widening scope of study concerning law and religion not only by publishing leading pieces of legal scholarship but also by complementing them with the work of historians, theologians and social scientists that is germane to a better understanding of the issues of central concern. We aim to redefine the interdependence of law, humanities, and social sciences within the widening parameters of the study of law and religion, whilst seeking to make the distinctive area of law and religion more comprehensible from both a legal and a religious perspective. We plan to capture systematically and consistently the complex dynamics of law and religion from different legal as well as religious research perspectives worldwide. The OJLR seeks leading contributions from various subdomains in the field and plans to become a world-leading journal that will help shape, build and strengthen the field as a whole.