Remedying Personal Law Systems
International Journal of Law, Policy and the Family, Forthcoming
23 Pages Posted: 10 May 2016
Date Written: May 9, 2016
One-third of the world’s population lives under personal law systems. These systems regulate family matters by applying different ‘personal laws’ ― ostensibly based on religious doctrine ― to people depending on the religious group with which they are identified. Personal law systems generally raise serious concerns relating to religious freedom, non-discrimination, familial rights and procedural rights. Despite these concerns, complex political considerations keep personal law systems in place, and thwart efforts to reform them. This paper proposes a way out of the stalemate that has dogged efforts to reform the personal law system in India, the country with the largest number of people living under such a system. This proposal entails the enactment of a uniform family law supplemented by a regime of state-recognised religious alternative dispute settlement. The paper argues that this proposal has the potential to address major concerns raised by the personal law system, provide a means of valuable recognition for religious identities, support religious practice and religious expression, promote justice for women, and enhance group autonomy. The paper also offers a number of recommendations that would help the proposed regime realise its potential. Finally, the paper indicates its significance beyond India, for other jurisdictions facing contentious issues relating to the accommodation of religious norms in family law.
Keywords: Personal Law, Religious Arbitration, Religious ADR, Muslim Personal Law, India, Family Law, Religious Law
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