I greatly appreciate Professor Mark Brandon’s enthusiastic engagement with my book. He effectively highlights the variety of agents and outlooks that, in my view, influenced Indian personal law.
I wish to clarify certain arguments of mine. Professor Brandon underlines the Indian constitution’s limited role in the development of family law in India unlike in the United States, and understands me to attribute this to “aspects of cultural experience.” I do not offer a cultural explanation of political and legal change. Among societies in which public religion was important and religious norms were central to family law until the twentieth century, constitutional law was given more influence over family law after new regimes assumed power in Turkey, Morocco, Tunisia, and Egypt, than it was in India. Thus, prior cultural experience did not determine the extent of constitutionalization, as well as other aspects of family law development such as the promotion of women’s rights, individual autonomy, and cultural pluralism. What mattered was how crucial public actors engaged with earlier experiences to devise ideas of the nation and the traditions that merit recognition, and how such notions interacted with projects to shape state-society relations.
The constitutionalization of family law had different implications for the recognition of religious norms, individual autonomy, and women’s rights. While both the constitution and family law were secularized in Turkey, Islamic law continued to govern most citizens in Egypt, Morocco, and Tunisia, and this was underwritten by giving shari’a or particular Islamic texts constitutional status. Individual autonomy and women’s rights were increased in Turkey and Tunisia as in the United States, but not much in Egypt and hardly at all in Morocco until the past decade. Two features of the Indian constitution were relevant to family law—the fundamental rights to equality, equal protection, non-discrimination, and personal liberty, and the call for a Uniform Civil Code. Legislators and judges justified certain personal law reforms in terms of these fundamental rights and as steps toward a uniform code, but they did not systematically change family law on these bases because they prioritized broad regime support over the democratization of the family, and sought to change personal law with reference to group norms rather than to the constitution’s egalitarian liberal principles alone. Certain other redistributive policies (e.g., lower caste preferences) were given a stronger constitutional foundation because political elites sensed that they enjoyed greater support.
Mobilization for social and family reform was vigorous among Muslims mainly in the last colonial decades, but not stronger than among Hindus. Muslim law was changed more than Hindu law from the 1910s to the 1930s because Muslim mobilizers built greater community consensus over personal law. Reform initiatives were framed differently—while Hindus presented themselves as modernizing social norms, Muslims often justified change with reference to earlier religious sources. Governing political elites misunderstood Muslim allusions to religious norms as resistance to reform and did not change minority laws after independence. By claiming that the choice to reform Hindu law alone reflected group opinion, policy makers provided support for the Hindu nationalist portrayal of Muslims as averse to development, and limited the public recognition that widespread discrimination was the main cause of postcolonial Muslim socio-economic decline. Even when they changed minority laws from the 1970s, they resisted reforms that they feared might reduce Hindu preeminence—e.g., extending Christians the adoption rights they had been denied in the colonial era to limit the access of children of Indian ancestry to property in Britain.