Muslim Personal Laws from a Cross-National and Comparative Law Perspectives

Abstract:
Personal law discussions anywhere are simplistic and reductionist if they only focus on “law and religion and identify theocracy as a major risk in modern global debates about law and society, and contexts of good governance debates. In today’s globalised world, Muslims live all over the globe. India’s ‘problems’ with Muslim law are unique to India, but illustrates very well the tensions between four competing different types of laws that need to be balanced everywhere all the time.

This presentation, first, introduces the ‘kite methodology of comparative law’ to include not only state law and modern human rights concerns, but also socio-economic considerations and traditional ethical and religious elements. The huge Muslim presence in India and specific historical factors contribute to highly politicised discourses about the place of Muslim personal law in India that can be illustrated in a few key cases. Such problems arise in other jurisdictions, too, but are often managed differently.
For India, case studies bring out that neither is a Uniform Civil Code an adequate approach, nor banning or criminalisation of certain aspects of Muslim law and practice. A skilfully balanced, constitutionally sound approach will need to maintain freedom of religion, while reminding Muslim citizens of India that they are part of this composite whole with its unique laws. While most Indian Muslims seem to understand this, many scholarly and other interventions fail our test of plurality consciousness. This involves the balancing of competing forms of respect for the basic human need, everywhere, and all communities, to feel connected to certain significant “others’ in responsible modes.

About the Speaker
Werner Menski (M.A., Ph.D., is Emeritus Professor of South Asian Laws at the School of Law, S.O.A.S., University of London). He has authored several books and many articles on Hindu and South Asian laws and also works on intercultural human rights in relation to ethnic minorities. He is presently focused around the globally valid Kite Theory of legal management with its few competing (and themselves internally plural) corner points. He was awarded UK Jurist of the year 2009 for his contribution to law and society.