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Hastings International and Comparative Law Review

Authors

Josh Goodman

Abstract

This paper analyzes and compares how two democratic states, India and Israel, incorporate discrete areas of religious law into their secular legal systems. As religion has become an increasingly important political force in India and Israel, both countries have turned to constitutionalism and to civil courts to manage the role of religious law within the democratic system. This development represents the convergence of two global trends: an expansion in the power of courts and the growth of religious politics. This paper examines how the conflict of secular and religious legal norms has played out in the Israeli and Indian civil courts, and draws out lessons from these countries' experiences with religious legal pluralism.

This paper argues that although the judiciaries in India and Israel generally issue rulings supporting secularism, they have only a limited ability to resist the trends that dominate majoritarian politics, including the pressures of religious constituencies, without losing legitimacy and power. Therefore, states that are generally committed to principles of secular governance and law should be wary about introducing elements of religious law into their legal systems, because in cases where civil legal principles conflict with religious mandates, regular civil courts may have difficulty upholding and enforcing the civil law.

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