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Religious Freedom under the Personal Law System$

Farrah Ahmed

Print publication date: 2015

Print ISBN-13: 9780199458066

Published to Oxford Scholarship Online: December 2015

DOI: 10.1093/acprof:oso/9780199458066.001.0001

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Adequate Religious Options

Adequate Religious Options

Chapter:
(p.132) 6 Adequate Religious Options
Source:
Religious Freedom under the Personal Law System
Author(s):

Farrah Ahmed

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199458066.003.0006

Abstract and Keywords

This chapter examines the implications of the personal law system for religious options available to people. It found that the system harmed the option of religious practice and the option of refraining from religious practice. Several defences of the system’s effect on religious options – including the voluntary power-conferring nature of many personal laws and the possibility that the option of personal law enhanced religious practice – were considered and rejected. Overall, the personal law system’s impact on the religious options of those subject to it harms religious autonomy.

Keywords:   self-creation, autonomy, freedom from religion, personal need, barriers to religious practice

This chapter considers the impact the personal law system has on religious autonomy through its effect on religious options. In the first three sections, the chapter considers whether the system harms religious autonomy by interfering with, or failing to provide, certain religious options. The final section considers whether it promotes autonomy by enhancing the option of religious practice.

In order to be autonomous, a person must have an adequate range of options of a sufficient quality.1 Without adequate options, events overtake the agent, instead of being chosen by her; she can no longer claim self-authorship or self-creation. Having adequate options is necessary for an autonomous life for a number of reasons. Gerald Dworkin writes:

If one wants to be the kind of person who makes decisions and accepts the responsibility for them, or who chooses and develops a life-plan, then choices are valued not for what they produce nor for what they are (p.133) in themselves, but as constitutive of a certain ideal of a good life. What makes a life ours is that it is shaped by our choices, is selected from alternatives, and therefore choice is valued as a necessary part of a larger complex.2

Moreover, having options affords agents opportunities to develop the mental and psychological abilities that are necessary for autonomy, or at least that enhance it. ‘[T]he human faculties of perception, judgement, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice.’3 If the exercise of these faculties hones them, and if these faculties contribute to our capacity for autonomy (see ‘The Idea of Personal Autonomy’ in Chapter 3), having more options might mean more opportunities to hone autonomy-enhancing faculties.4

Finally, having additional options gives agents the opportunity to reject them, which is a valuable opportunity to exercise their autonomy.5 Consider an example. Sue and Bob are teachers.6 Before she first started working as a teacher, Sue had the option of becoming a teacher, a lawyer, a judge, or a social worker. Before he first started working as a teacher, Bob had the options of either becoming a teacher or a social worker. So, while Sue determined that she would not be a judge or a lawyer, Bob did not have those options, so he could not choose to reject them. Bob did not have the power to determine what he would not be in the same way as Sue did. Thus, by having and exercising power—the power not to become a lawyer and not to become a judge—Sue was more autonomous (in this matter) than Bob was.

These considerations explain why an ‘adequate range of valuable options’ is a prerequisite for autonomy as well as why even past this threshold, generally speaking, increasing a person’s range of options enhances her autonomy. As ‘The Idea of Personal Autonomy’ (Chapter 3) discusses, this is true mutatis mutandis of religious autonomy as well as personal autonomy more generally.

However, the effect that additional options have on autonomy is complicated. Depending on the context, additional options can enhance, have no effect on, or even harm autonomy. While autonomy requires an adequate range of valuable options, it does not follow that increasing a person’s options always contributes to her autonomy. For instance, (p.134) adding an autonomy-reducing option to the set of options a person has will not enhance, and might harm, her autonomy. (More is said about this in ‘Enhancing Religious Practice?’ in Chapter 6.) Other examples have to do with the costs associated with decision-making: adding too many options to a set of options might not enhance, and might harm, autonomy because of the time and effort involved in deciding between the options.7 It is difficult for an agent to be an author or creator of her life if she spends most her time deciding between scores of options for every decision she makes.8

So, more options do not necessarily lead to greater autonomy. However, we might still say that assuming (a) that we are talking about adding valuable, autonomy-neutral, or autonomy-enhancing options that are sufficiently different from the options already available to the agent,9 and assuming (b) that the costs associated with choosing between options are not too high, then more options lead to greater autonomy. We can, thus, make the following general observations:

  • If the range of valuable options available to a person falls below the threshold of adequacy, options that contribute to the achievement of an adequate range of valuable options will contribute to autonomy.

  • If the range of valuable options available to a person falls below the threshold of adequacy, options which do not meet assumptions (a) and (b) mentioned earlier will not contribute to autonomy because they do not contribute to the achievement of an adequate range of valuable options.

  • If the range of valuable options available to a person is already adequate, adding options that do not meet assumptions (a) and (b) will likely not enhance, and possibly harm autonomy.

  • If the range of valuable options available to a person is already adequate, adding options that meet assumptions (a) and (b) will probably enhance autonomy further.10

  • It follows that removing an option that meets assumptions (a) and (b) decreases autonomy regardless of whether the number of options has reached the threshold point of adequacy or not. Naturally, the removal of an option that results in the range of options dipping under the ‘adequacy’ threshold is more serious than the removal of an option that does not.

(p.135) With these observations in mind, we can consider how the personal law system impacts religious options, and ultimately, religious autonomy.

Freedom from Religion

Religious autonomy implies the freedom to be agnostic, undecided, indifferent, silent, or uncommunicative on religious matters and to refrain from any form of practice.11 But the assertion that religious autonomy presupposes these freedoms may not mean much to those who think that religious autonomy should not necessarily be bilateral (that is, include freedom from religion).12 It is important to consider therefore, the implications of the absence of this freedom for religious autonomy.

Denial of freedom from religion is potentially just as harmful to religious autonomy as a denial of freedom to engage in a religion. Consider a state that bans the wearing of a religious dress, in all public places, at all times. Most people would consider this a denial of religious freedom.13 But what if this state, apart from the ban, also required all persons in the state territory to wear a particular religious dress (say a nun’s habit or a burka) in all public places at all times. In the first case, the state is undoubtedly harming religious autonomy by denying people potentially significant (for expressive and other reasons) options of dress. But what the state does in the second case is just as bad for autonomy—by imposing this restriction, it eliminates all options but one in the matter of dress.14

But those who deny that religious autonomy is bilateral—thus denying that it includes freedom from religion—might also say that freedom from religion is not important for religious autonomy, as it is after all religious autonomy with which we are concerned. This approach would be a mistake, because—as discussed in ‘Religious Autonomy and Personal Autonomy’ (Chapter 3)—the concept of religious autonomy implies the power to disbelieve in a Supreme Being or a transcendent reality, or to subscribe to a moral code or world view that is at odds with the code of all religions. If someone does not have freedom from religion, they might be religious, but they cannot possess religious autonomy. If religious autonomy assumes a freedom to choose religion, then it is impossible without freedom from religion. As James Nickels, following Locke, writes: ‘The presence of an alternative is required for the meaningfulness (p.136) of the choice … [C]hoice is more voluntary and meaningful in the presence of an option. The value of religious commitment is undermined in the absence of freedom to refrain from religious belief and practice.’15

Given the importance of freedom from religion for religious autonomy, certain features of the personal law system appear problematic. There are serious impediments to exit from the system, which means that when some people subject to the personal law do the things that most people do during their lifetimes, they often have to do them (if they are to do them at all) in accordance with religious norms.16 Often people cannot choose to be governed by generally applicable family laws instead of personal laws. Some supporters of the personal law system argue that the limited movement that the system allows between personal law and the general family law alleviates other concerns one might have about the system’s effect on autonomy.17 However, as ‘Avoiding or Exiting the Personal Law System’ (Chapter 2) pointed out, those subject to the personal law system often do not, as a matter of law, have the option to switch to general family law or another personal law.18 In addition, even when general family laws are presented (as a matter of law) as an alternative to the personal laws, this is not sufficient to guarantee that individuals, in fact, have a choice between the two. The fact that there is a legal right of exit from a personal law group does not guarantee that remaining in the group is voluntary,19 especially because of the high costs associated with such an exit.20

People sometimes have to make decisions on matters around which there tends to be fairly intense pressure to do and think as most other people are doing and thinking, especially within a community.21 Religion is generally one of those matters, at least in India. People are, therefore, unlikely to be able to make autonomous decisions about religious matters if they are subject to public scrutiny and pressure to conform. Particularly on the choice between personal law and general family law, in many communities in India, if an individual chooses general family law, this will be interpreted as a denunciation or rejection of the community.22 Other members of these communities are likely to react negatively to such a choice. Specifically, it is likely that they will think less of a member who chooses the secular law, try to convince her not to make this choice, and at least in some cases threaten her with some degree of ostracism.23 It is difficult to provide further evidence (p.137) of this claim, because the personal law system as it functions at present often does not allow a choice between generally applicable family law and personal law, and even when it does, people are often unaware of the existence of an option apart from the personal law.24 However, the very low levels of usage of the Special Marriage Act 195425 fit with, and may be partly explained by, the pressure to conform to personal law. Moreover, anecdotal evidence—including the much-discussed reaction of one community to Shah Bano, a woman who claimed maintenance from her husband under general family law when she was also governed by Muslim personal law26—supports this claim:

In her native Indore, the 75-year old Shah Bano was denounced by conservatives as an infidel; demonstrations were held outside her house and neighbours were asked to ostracise her. On 15 November Shah Bano succumbed to the pressure, affixing her thumb impression to a statement saying that she disavowed the Supreme Court verdict, that she would donate the maintenance money to charity and that she opposed any judicial interference in Muslim personal law.27

Another commentator recounts how Shah Bano was forced to state ‘(in a pitiful statement signed with her thumbprint) that she now understands that her salvation in the next world depends on her not pressing her demand for maintenance’.28

It might also be instructive to look at a situation in another jurisdiction, which was faced with some of the issues examined here. In a report considering the question of what Ontario ought to do about religious arbitration (discussed in the Introduction to this book and in Chapter 7’s ‘Religious Alternative Dispute Resolution’), the Women’s Legal Education and Action Fund (LEAF) made this statement:

LEAF is concerned that arbitration may not be chosen freely in many circumstances. For some women there may be very strong pressures based on culture and/or religion, or fear of social exclusion. These issues may be very real in faith-based communities, where some women may be called a bad adherent to a particular faith or even an apostate if they do not comply with arbitration. Such condemnation would leave such women very alone, shunned in their communities or even their houses of worship, and would only compound feelings of alienation created by a family break-up. In addition, there are many women whose economic lives depend on a (p.138) close association with their faith-based community or cultural group … For other women there may be fear of violence … When these conditions are present it is not accurate or reasonable to suggest that arbitration is being chosen freely.29

There is some evidence that women and other vulnerable groups in India live in circumstances similar to those described by LEAF.30 All of this suggests that these vulnerable persons face a great deal of pressure to choose the personal law over the general family law and that, if they defy this pressure, they often face denunciation and ostracism. There is, in other words, reason to think that this pressure is coercive and that exit from the personal law is effectively not an option for many people.31

As outlined in ‘Discrimination in the Personal Law System’ (Chapter 5), one test for determining when people are coerced is to ask whether they would be justified or excused if, as a result of threats made against them, they performed an otherwise wrongful action.32 We also said earlier that a person is coerced when they are threatened with the loss of the life they have already embarked upon.33 We think of a threat as coercive when the threat is to bring about such a consequence that there is a reason of great weight (for the one who is threatened) to avoid the consequence.34 Raz’s definition of a ‘personal need’ helps explain why the women and other vulnerable people described above are under coercive pressure. Personal needs are ‘the conditions necessary to enable a person to have the life he or she has or has set upon … Personal needs are not necessarily the needs of survival. They are more like the needs for having a worthwhile life’.35 It is difficult to dispute that social bonds are an important personal need. Social bonds are often indispensable to those who are attached by them. Religious communities, at least in India, are often a major (or sometimes a primary) setting in which social bonding takes place; families tend to share a religion and religious people tend to know and form bonds with people of the same religion. Religious schools, churches, community service activities all make it likely that people could find many of their social needs met by their religious communities.36 Under these conditions, acceptance by, and continued membership in, one’s religious community37 can constitute an important personal need.

Thus, women and other vulnerable persons living under the personal law system may sometimes—on the face of the law—have a choice (p.139) between general family law and personal law. However, the exercise of this power to choose in favour of the general family law appears to attract adverse consequences for them. In particular, it harms a personal need of great importance—their social bonds. The preservation of their social bonds is clearly a reason of great weight for them to select the personal law, even when formally offered an alternative by the state. The community’s behaviour in these circumstances amounts to coercive pressure, which makes autonomous decision-making impossible.38

Since many of these vulnerable persons effectively have no choice between general family law and personal law, they do not enjoy freedom from religion. Since religious autonomy implies the freedom to be agnostic, undecided, indifferent, silent, or uncommunicative on religious matters and to refrain from any form of practice relating to religion, these obstacles to exit from the personal law system adversely impact religious autonomy.39

Barriers to Religious Practice

The personal law system does not affect religious profession; those subject to the personal laws can profess any religion or none.40 However, although this feature is often overlooked, the system interferes with religious practice. It obliges people to organize their lives according to certain religious norms; this means that those who endorse other religious norms (that is, the norms of other religions as well as different interpretations of the religious norms applied to them) are prevented from organizing their lives in accordance with the latter norms. To enjoy religious autonomy, a person must have the option to express, through the variety of forms that human expression can take, all attitudes, values, and opinions on religious matters and the freedom to engage in rituals, rites, ceremonies, forms of worship, or other religious acts.41 In order to guide our thinking about how the system affects this option, those subject to personal laws will be divided into groups.42

  1. P1. First, there are those who self-identify in the same way that the personal law system identifies them (that is, Muslim, Hindu, Parsi, etc.) and whose religious beliefs coincide completely with those of the personal law that is applied to them. The population of this group is likely to be small, as most personal laws have been (p.140) established through a historical process that has changed them in ways that make it unlikely that anyone would have religious views that coincide exactly with them.43

  2. P2. Second, there are those who self-identify in the same way that the personal law system identifies them but whose religious beliefs differ from those of the personal law that applies to their personal law group.44

  3. P3. Third, there are those whose religious beliefs coincide with those of a personal law, but who do not identify with the personal law group that the personal law system assigns them to. This is more likely than it sounds, especially given the wide net cast by the category of ‘Hindu’.45

  4. P4. Finally, this category consists of those who do not self-identify in the same way that the personal law system identifies them, and whose religious beliefs do not coincide with that of the personal law applied to them. This too is possible because renouncing Hinduism is not enough to avoid being regarded as a Hindu for the purpose of the personal law.46 So, a secular humanist may well find Hindu law applied to her.

Cases like P3 were discussed in another chapter47 and more will be said about both P1 and P3 below. But cases like P2 and P4 seem immediately problematic. One problem with the personal law system is that when (at least some) people subject to it do the things that most people do during their lifetime—get married, divorced, inherit property, manage property, make gifts, create trusts, enter into contracts, bequeath property, and so on—they sometimes have to do them (if they are to do them at all) through the religious forms prescribed by their personal law.48 These represent important opportunities for religious practice. Under the personal law system, not only is this opportunity lost, but the person may also have to do something that is fundamentally inconsistent with her religious beliefs. She will, thus, be forced to act according to religious beliefs that are not her own.

Consider the case of ‘H’, who disagrees with the personal law’s understanding of Hinduism. Such a person is likely to have aspects of his life governed by the norms of Hindu personal law despite his views. To begin with, rights and liabilities associated with the coparcenary of a Hindu joint family accrue to him as a foetus.49 If he were to try to exit (p.141) the system, he would probably face heavy exit costs.50 When he marries, he chooses to marry under the Special Marriage Act 1954, as he knows that usually when parties marry or register their marriage under this Act, they are governed by the Indian Succession Act 1925 (which he considers less objectionable than Hindu personal law). However, he finds that, since he is marrying another Hindu, he continues to be governed by Hindu succession law. This means he has no choice but to be governed by Hindu personal law in matters of succession.51

Consider another case. A person (‘M’) considers himself Muslim, but holds religious views different from those represented in Muslim personal law. These views include interpretations of Islamic doctrine to conform to the idea of the equality of the sexes. He has a daughter and a son. M tries his best both to live his life and to raise his children according to his religious beliefs.52 He gives his daughter all the advantages of education that he gives his son. He hopes that this will serve as an example to others, especially his children. Nevertheless, by Muslim personal law, M’s testamentary powers are severely restricted and his son will inherit twice as much from M as his daughter will.53

Both M and H are unable to fully practice or realize their chosen religious options because of the personal laws that govern them. The law insists that they organize their lives according to certain ostensibly religious rules, which they disbelieve in and even find distasteful. This prevents them from living according to the religious norms that they would like to follow. By diminishing their ability to practice or realize in their chosen religious option—especially given the features of religious options noted earlier—the personal law system diminishes their religious autonomy.

An objection might be raised to the argument so far. The objection is that most personal laws are voluntary power-conferring rules. Power-conferring rules dictate how a person marries, makes a will, adopts, gives in an adoption, etc., and they enable her to create new duties or modify old ones.54 If the personal laws are all voluntary power-conferring rules, that is, if they only enable individuals to create and change their legal duties, then, arguably, they should not be viewed as affecting autonomy or reducing options. After all, it is difficult to view them as constraints. Take the laws of marriage. The fact that the personal law system allows Shias to contract muta (temporary) marriages does not affect the negative (p.142) religious freedom55 of those Shias who think their religion prohibits the practice. There is nothing, after all, stopping two or more people from celebrating a religious marriage even if the state does not legally recognize it. Neither the legal non-recognition of this marriage—nor the legal recognition of other marriages—infringes negative religious freedom. It does, however, raise other issues that will be dealt with in a subsequent chapter.56

It is important to emphasize first that not all personal laws are voluntary power-conferring rules. Many personal laws—notably rules relating to inheritance, the division of property,57 and maintenance payments—are not power-conferring but mandatory and duty-imposing. The objection considered in this section does not apply at all to these rules. It is, therefore, at best a partial objection to the argument outlined earlier. Moreover, even voluntary power-conferring rules in general, and voluntary power-conferring personal laws in particular, can raise problems for religious autonomy by affecting options.

It is possible to affect religious autonomy by making the option of religious practice unviable to such an extent that it is effectively eliminated. Voluntary power-conferring rules can have this effect on the option of religious practice. For instance, power-conferring personal laws could effectively eliminate the option of P2 and P4, organizing their lives according to their religious beliefs as opposed to the norms of the personal laws. Consider again the case of M, described earlier.58 The rule recognizing wills is a power-conferring rule. While it is true that M can write out as many wills as he likes, it would be strange to count these as viable options for him. His purpose in making a will is to make arrangement for the disposal of his property after his death. The unrecognized wills do not further this purpose, unless it is assumed that at least some of his heirs are willing to accept less than the shares of his property that they are legally entitled to.59 His heirs’ failure to abide by the rules that confer rights of property—by, for instance, taking more than their share of an inheritance—would leave them open to the penalties of criminal law.60 In other words, the voluntary power-conferring personal law, in this case, by providing legal recognition to one kind of arrangement, effectively removes the option of having any other kind of arrangement, including one based on his actual religious beliefs.61 The fact that at least some personal laws are power-conferring rules is not, therefore, a valid (p.143) objection to the arguments against the personal law system raised in this section.

The arguments in this section apply mainly to P2 and P4 in our scheme earlier. But is the option of religious practice—of P1 and P3 (whose religious beliefs coincide with the personal laws)—affected by the personal law system? The next section outlines one way in which they are.

Interference with Religious Practice

A common worry about laws based on religion is their treatment of those who do not subscribe to that religion. It might appear unfair, intolerant, disrespectful, and invasive of autonomy that those who do not subscribe to a religion are obliged by law to conform to it. To a great extent, these worries apply to the personal laws; as the previous section noted, there is almost always a mismatch between the content of the personal laws and the religious beliefs of those to whom they apply. This section, however, concentrates on a different worry about the personal laws, a worry relating to how they interfere with the religious practice of those few whose religious beliefs coincide with the personal laws—P1 and P3 in our scheme.62

Consider an idea that is familiar from Locke:

Whatever profession we make, to whatever outward worship we conform, if we are not fully satisfied in our own mind that the one is true and the other well pleasing unto God, such profession and such practice, far from being any furtherance, are indeed great obstacles to our salvation. For in this manner, instead of expiating other sins by the exercise of religion, I say, in offering thus unto God Almighty such a worship as we esteem to be displeasing unto Him, we add unto the number of our other sins those also of hypocrisy63 and contempt of His Divine Majesty.64

Also consider a similar idea from the Virginia Act for Establishing Religious Freedom 1786: ‘Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness’.

Some, probably many, religious people want to perform actions not out of any motivation, but out of religiously acceptable motivations (p.144) (such as a love for, or desire to please, a deity; a sense of religious duty; or a love for humanity). If a religious person performs a religious act for religiously unacceptable motivations, she might regard her act as void of religious significance or effect. She might even think it better not to perform the act at all than to perform it out of unacceptable motivations. A religious person might even regard an act, performed without the right motivations, as not being the same act as one performed with the right motivations. Does someone who assumes the posture of prayer really pray if he does it out of improper motives? Does an atheist who participates in mass really ‘receive communion’? Does the public relations-minded philanthropist really perform acts of charity?

This might all seem artificial. Why would you perform a religious act out of what you yourself recognize as an undesirable motivation? As frustrating as it might seem, this is neither uncommon nor artificial. Imagine that Anna is a devout Christian who goes to church most Sundays. But there is the occasional Sunday when she decides to stay at home and rest instead. She makes the decision to go or not go on the morning of each Sunday. On one particular Sunday, Anna’s visiting and rather judgemental grandmother is at breakfast before Anna has even thought about the possibility of going to church. On seeing her grandmother, Anna recognizes that if she does not go to church, she will judged adversely by her grandmother. So she decides, motivated by a desire to avoid her grandmother’s adverse judgement, that she will go to church. The point to notice is that Anna might well have acted out of religious motivations had the non-religious ones not been brought to her attention first.

There is another point to be made about Anna’s situation. On the second Sunday of her grandmother’s visit, Anna might decide to go to church and be unclear about why she does so. The knowledge of the unpleasant grandmother-related consequences of not going to church has been lurking in her mind. But she also has genuine religious faith and sees church-going as an important part of her religion. This is hardly an exceptional story: faced with the question ‘why did you act as you acted’, few can provide the main motivation, let alone a complete set of motivations for their action.

All of this suggests:

  1. (p.145) 1. At least some people want not only to perform religious acts, but also to perform these acts at least partly out of a certain motivation (or, they at least do not want to perform these acts purely out of an unacceptable motivation) and they want to know that they performed the act at least partly out of the desired motivation.65

  2. 2. If they do not act at least partly out of the motivation that they want to act on, or they act purely out of the motivation they do not want to act on, they might consider themselves as having failed in some way.

  3. 3. There are circumstances such that when there is more than one putative motivation for acting, it is not clear to the agent which of these, if any, she acted on. In particular, she cannot be sure that she acted (at least partly) on the desired motivation.

We can call point 3 the opaqueness problem. And the first three points imply that in such circumstances, removing or not providing the people in 1, 2, and 3 with the alternative, undesirable motivation is a way to allow them to conform better to the desire expressed in 1.

Returning once again to the personal law system, assume that there is a religious person (‘Adam’) such that his religious beliefs match exactly the religious norms enforced by the law. He corresponds to the groups identified as P1 and P3. The earlier discussion suggests that there are problems even with the application of the personal laws to people like Adam.66 The personal laws, and any other law enforcing religious norms, give Adam the undesirable additional motivation for action. There are strong incentives to conform to the personal law. It is true that none are like criminal laws such that their breach leads to imprisonment or a fine. Some of the personal laws are power-conferring rules,67 rules about the validity of marriages, wills, adoptions; others confer rights, for example, of inheritance or alimony. However, as discussed earlier, failure to conform to the power-conferring personal laws will lead, effectively, to the loss of property, marital status or familial status (as adoptive child or parent). Moreover, failure to abide by the rules that confer rights of property—by for instance, taking more than one’s share of an inheritance—would leave one open to the penalties of criminal law.68

Like Anna’s grandmother, personal laws create two dangers for Adam. First, there is the danger that he might perform religious acts purely (p.146) with a view to avoid the burdens that the law imposes on him if he fails to conform to it. This is a danger because Adam considers performing religious acts purely on this motive to be wrong, or at the very least void. If the first danger seems unlikely, the second danger is that even if Adam performs a religious act at least partly out of the religiously acceptable motive, he might become confused about what his motivation was, leading to him again to consider his action void or wrong.

It might seem that, so far, the worries amount to concern for certain psychological responses that religious people might have to acts performed with inappropriate motivation. But these worries are also important from the point of view of religious autonomy. As argued earlier, religious practice is an important aspect of engaging with a religious option. Given the importance for successful religious practice of acting—at least, partly out of the right motivation, and of the knowledge of that action—the opaqueness problem interferes with the agent option of practising her religion. This argument is similar to Melvin Eisenberg’s argument against the enforcement of donative promises:

Under an enforceability regime, it could never be clear to the promisee, or even to the promisor, whether a donative promise that was made in a spirit of love, friendship, affection, or the like, was also performed for those reasons, or instead was performed to discharge a legal obligation or avoid a lawsuit. Accordingly, gifts made pursuant to simple, affective donative promises would be seriously impoverished, because at the point of the transfer, the promisor’s motives would invariably be mixed.69

An objection to this argument, thus, lies in the characterization of what religious people require of themselves. It is not true, as the objection might be, that all religious people want to perform religious acts with certain motivations. There are traditions within which religious duties consist exclusively in the performance of religious acts. The motivation of the agent who performs them is irrelevant. Perhaps, there are also traditions that require agents to try to have certain religiously mandated attitudes, but do not blame them if they, having tried, fail to have the attitude. Those within these traditions do not face the same dangers from the personal laws that are described earlier.

One could respond to this objection in the way that some of the New Testament responds to the supposed law-focused religious practice of (p.147) the Pharisees and say that such practices of religion are not valuable. This would be a mistake; such religious practices can be an important part of an autonomously religious life. Consider this account of the value of practice in a school of Judaism:

This truly was a religion of doing rather than believing … The 613 commandments of the Law brought God into the minutiae of daily life, whether one was eating, drinking, cooking, working or making love. No activity, no matter how mundane, was without religious potential. Each was what Christians called a sacrament: it was an opportunity to encounter the divine moment by moment. Every time a Jew observed one of the commandments (mitzvoth), he or she was turning towards God ….70

Religion is not about accepting twenty impossible propositions before breakfast, but about doing things that change you. It is a moral aesthetic, an ethical alchemy. If you behave in a certain way, you will be transformed. The myths and laws of religion are not true because they conform to some metaphysical, scientific or historical reality but because they are life-enhancing. They tell you how human nature functions, but you will not discover their truth unless you apply these myths and doctrines to your own life and put them into practice.71

A similar argument has been made about Hinduism.72 It must be acknowledged, therefore, that there might be religious traditions that will be much less affected by the opaqueness problem than others and that this argument must be qualified accordingly. This is not a place for a tally of the number of religious traditions to which motivations matter and of the number to which they do not. Ignoring the latter would open one up to the charge of colouring all religious traditions with a Protestant world view. Despite the existence of traditions in which motivations matter less, it is important to remember, first, that there is still a very significant number for which motivations matter a great deal;. second, even in the traditions in which they matter less, it is rare that they do not matter at all. In the previous extract, for instance, while the practice is valuable, this is because it transforms practitioners—possibly into the kind of persons who act rightly and on the right motivations.

But there is also a more difficult objection to the argument made in this section. Criminal law, and the policeman on the corner, provide us with a reason not to kill. This is a motivation in addition to our moral duty not to kill. The considerations outlined earlier relating to the (p.148) personal laws would surely apply equally, if not more strongly, to criminal law. It was argued that the personal law system’s effects on Adam or Anna’s certainty about their motivation for their religious action harms their religious autonomy. But all moral agents, whether they are religious or not, might be uncertain of their motivation because of criminal law. Did they refrain from killing, maiming, raping, stealing because of the law or because of their sense of morality? This uncertainly might well lead to a failure of their moral goals: to act or refrain from acting73 out of a sense of right and wrong, out of compassion, sympathy, or kindness, and not out of fear of criminal sanction. This, one might argue, is surely as harmful for a person’s autonomy in the moral sphere74 as Anna’s or Adam’s failure is harmful for their religious autonomy. Yet, and here is the objection, this argument is rarely made in support of the abolition of criminal law.

This objection might be met by the fact that there are countervailing reasons for having criminal law—for instance, the prevention of harm to others—that do not apply to the personal laws.75 Some doubt remains. If the opaqueness problem applies equally to the criminal law and the personal law, one would expect that we would at least regret having criminal law, for this reason. While recognizing that criminal law is necessary, we would expect to think it unfortunate that moral people, given an additional reason to refrain from some immoral acts, have their autonomy diminished by the existence of criminal law. But this seems somewhat forced.

The reason why it appears forced is not, however, that the opaqueness problem does not exist. It is because the sort of moral persons we are concerned about do not contemplate performing the kinds of criminal acts we have been talking of, namely, the criminal acts that are commonly thought to coincide with moral wrongs (which criminal lawyers may refer to as mala in se as opposed to mala prohibita). While it is true that moral persons have at least two reasons not to commit these criminal acts, neither of these reasons play a part in their practical reasoning. Under normal circumstances, they do not wake up every morning and consciously deliberate about whether or not to kill or maim on that day. They might very occasionally face conditions under which they do consider this question. For example, someone might mistake them for an assassin and offer them money to kill someone. They might then (p.149) become victims of the opaqueness problem if they could not be sure if they refused for moral or prudential reasons.

Barring such unusual circumstances, most minimally moral people do not therefore face the opaqueness problem as a result of criminal law. It is misleading to compare Anna or Adam’s religious acts to acts such as ‘refraining from murder’ or ‘refraining from rape’. The performance of these latter acts is given. The option of killing is not part of a minimally-moral person’s moral landscape. A more helpful comparison is with supererogatory acts: charity, kindness to children, helpfulness to neighbours, or concern for the disadvantaged. These are more typical of the acts that would make up the moral goals of a moral person. The law generally does not provide an additional, opaqueness-inducing reason to perform these acts.

There are exceptions, such as Good Samaritan laws and some principles of tort law. Lord Atkin’s duty of care was inspired by the Christian exhortation to ‘love thy neighbour’.76 Contract law may also give people an additional prudential reason to keep their promises (which would be their moral duty in any case). The opaqueness problem might, as it happens, apply to these legal rules as well as the personal laws. It is important, however, to keep two qualifications in mind. First, the opaqueness problem is not significant in every sphere of human action. While Eisenberg, among others, notes that the opaqueness problem is a reason not to enforce donative promises, he equally recognizes that ‘the world of contract is a market world, largely driven by relatively impersonal considerations and focussed on commodities and prices’.77 This being the case, if an agent’s motivations for supplying a client, with whom she has no personal relationship, are not entirely clear to her, this is less of a problem than if she were giving a gift to her parents or offering an act of worship to a deity. Second, in some circumstances where the opaqueness problem exists, it is sometimes better that the agent do the act in question with the wrong motivation than not do it at all, even if it would be best if she did it with the right motivations. For instance, it may be best to not injure your neighbour out of the Christian duty to love her, but taking care to not injure her out of any motivation is better than not taking care to injure her. This is all the more true in the case of the injunctions of criminal law, and to some extent tort law.

(p.150) But the same cannot be said of the religious acts contained in the personal laws. It is difficult to see how following the religious rules that they contain, on any motivation, is better than not following them at all. As discussed earlier, although there are exceptions,78 for most people the motivation in performing these religious acts matters. Moreover, unlike criminal law or tort law, there is no necessity for the personal law. The matters regulated by the personal law could well be regulated using other methods (for example, general laws), which do not cause the opaqueness problem or where the problem is not significant.79 The enforcement of personal laws, therefore, cannot be justified on the same basis as criminal and tort law.

A final objection, and perhaps the most important one, to consider is that the opaqueness problem is so pervasive in religious practice, at least in the context of India, that the personal law system’s contribution to it is negligible. Anna’s grandmother-related motivation is easily generalizable to pressure within a religious community to conform to the prevailing religious orthodoxy. This kind of social pressure, rather than the system, might be primarily blamed for the opaqueness problem. One reply to this objection is that pressure from a religious community is unlikely to have the strength that pressure to conform to, or not disobey, the personal laws has. As ‘Freedom from Religion’ earlier notes, failure to conform to the personal law can lead to loss of property rights, parental rights, and even to criminal sanctions. Motivations based on the personal laws are, therefore, likely to feature more prominently in an agent’s deliberations than pressure from a religious community. They are, therefore, likelier to cause the opaqueness problem. Another reply to this objection might be that while this social pressure is widespread, it is not universal. There are probably religious individuals who are not subject to pressure to conform from a religious community. This could be, for instance, because of the relative anonymity of urban life, even in India. It could also be because the individual is not associated with a religious community or because the individual’s social group respects individual autonomy in religious matters and, therefore, does not exert much pressure to conform. A final reply to this objection is that pressure on the individual from the personal law system and pressure from religious communities do not simply run separately and parallel to each other. Rather, as this book argues elsewhere,80 the Indian personal law (p.151) system, like similar systems in other jurisdictions, crystallizes traditions and maintains the power of sections of the religious community,81 who are often opposed to any change in religious tradition.82 The personal law system could, thus, encourage religious communities to exert pressure on individuals to conform.

To take stock of the argument so far: having certain motivations is regarded by many as necessary for the successful performance of religious acts. The personal law system, in some situations, makes the motivations behind such acts opaque, affecting the agents’ ability to successfully practise their religion, and, ultimately, their religious autonomy.

Enhancing Religious Practice?

The earlier discussion shows how the personal law system harms or diminishes religious practice.83 But as we’ve seen, there are certainly those who believe that personal laws could be said to enhance or form part of the important option of religious practice.84 If they are right, this would represent an important way in which the system enhances religious autonomy. So, this section explores the possibility that having the option of personal law, in addition to general family law enhances the option of religious practice, and, thus, the religious autonomy of some of those subject to the personal law system.

Two obvious counterarguments to this claim might present itself based on ‘Freedom from Religion’ (this chapter), ‘Avoiding or Exiting the Personal Law System’ (Chapter 2), and Appendix B. First, the personal laws are not usually presented as an option. People often do not get a choice as to whether they are governed by personal law or not; they often do not get a choice as to which personal law they are governed by. Exit and movement are prevented by legal obstacles as well as community pressure to conform to the personal law. Second, even if personal laws are an option, they are an option that harms religious autonomy. And as indicated earlier,85 adding an autonomy-reducing option to a set of options is unlikely to enhance autonomy overall. As Chapter 5 argued, the norms contained in the personal laws often undermine the self-respect necessary for religious autonomy. Further, as argued in the sections ‘Freedom from Religion’ and ‘Interference with Religious Practice’ (both in this chapter) the personal laws interfere with the option of religious practice (p.152) in many ways. And the personal laws affect some common preconditions of personal autonomy and religious autonomy by showing inadequate concern for the welfare of women and children and leaving them with inadequate resources for autonomy.86 The defence of the personal law system as part of the option of religious practice is problematic for these reasons. However, since there is still the possibility that personal laws are genuinely an option that does not harm the religious autonomy of some, this section will consider whether the personal law system can be said to enhance or form part of the important option of religious practice. It is important to consider this possibility because some proposals for reform of the system argue that the personal laws be maintained as an option along with a general code of family law.87

This question will be considered in two stages. The first stage considers whether conceiving of the choice of personal law as a promise suggests that the system enhances the option of religious practice. The second considers whether the symbolic value of being governed by the personal laws enhances the option of religious practice. To reiterate, in the spirit of exploring the impact of the personal law system on religious practice, both the upcoming sections assume that the personal laws are optional even though they are not for many people, as discussed earlier under ‘Freedom from Religion’.

Autonomy and Binding Oneself

One could conceive of the act of choosing the law that one would be governed by as a commitment, like a promise. A decision to be governed by personal law might then be seen as a promise to abide by it. Such a promise could be particularly significant for religious autonomy because of the personal law’s association with religion.

It is easy to see the value of the power to bind one’s future self. Some people ask their bartender, at the beginning of an evening, not to serve them more than a certain number of drinks because they anticipate that their inebriated self will make less responsible decisions. Often, requests to be woken up at a certain time are accompanied by instructions to ignore entreaties to be allowed to sleep more. Psychiatric patients sometimes provide consent to future treatment that they are unlikely to agree to once the psychiatric ailment recurs.88 These ‘Ulysses contracts’ allow (p.153) people to decrease the likelihood that they will make certain choices in the future which they, at present, regard as bad choices; the power to make such contracts can, therefore, enhance autonomy.

This, it might be argued, is particularly true of a commitment to be governed by a personal law. Consider the case of a person who has strongly held religious beliefs. These include the belief that she ought to live according to certain religious norms. She has just moved to a new city where people tend not to be very religious and she is worried that her commitment to her religion will weaken. She wants to lock this commitment in, ensuring that she complies with her religious duties not just now, but in the future as well. Assume that she considers the Indian personal law that would apply to her to be a close approximation of these religious norms (like P1 and P3). By giving her the power to bind her future self to these religious norms, the personal law system, one might argue, enhances her religious autonomy. The constitutions of many liberal states arguably bind their entire population to certain values. The personal law system might be seen as allowing religious people to bind themselves in a similar way, should they choose to do so. All this seems to suggest that there is value in being able to bind future selves—a value that might give us a reason in support of the personal laws being available.

The power to bind our future selves is certainly valuable, in some circumstances. But it is no coincidence that we are most willing to acknowledge that a person should be bound by an undertaking made in the past when the person is less in control of himself in the relevant future state than he was when he made the undertaking. Inebriation, drowsiness, and psychological illness all left those in our examples with little control over themselves. That is not to say that these are the only circumstances where the power to bind our future selves is valuable; they also seem valuable in cases where we fear future weakness of will. However, not all promises or commitments present such strong cases for the value of binding future selves. In the absence of such a strong case, another value assumes an important role: the freedom to change one’s mind.89 This value is closely bound up with our ability to lead autonomous lives, including in the religious sphere.

Our ability to entertain second thoughts, to reconsider, adapt, and change direction in the light of a new piece of information, or a telling (p.154) experience, is deeply bound up with what makes us autonomous human beings. This ability is as essential to the full and complete exercise of our freedom as is our ability to bind ourselves with a plan.90

To hold people to a decision on the question of whether they will be governed by personal or general family law, as the personal law system would, would be unjustifiably burdensome. If they picked an option that significantly reduces religious autonomy—personal laws—then holding them to it is even more odious. The use of this argument to allow people to choose the personal law is unconvincing unless it means that, having opted into it, they could always opt back out again if they change their minds or if it became too much of a burden. This, however, is not the way the personal law system has usually been designed.

So, while it is possible that enforcing some voluntary undertakings or commitments enhances autonomy, and that under some circumstances this could be true mutatis mutandis of religious autonomy, the personal law system cannot be defended on this basis. Especially when the content of the undertaking significantly reduces religious autonomy, as the personal laws do, it is facetious to argue for its enforcement on the basis of respect for religious autonomy.91

The Expressive Potential of the Option of Personal Law

Even if the personal law system cannot be justified as a kind of religious-autonomy-enhancing promise, perhaps giving people the opportunity to choose personal law gives them a means of religious expression that might enhance their option of religious practice. It is unnecessary to make a strong claim here about the meaning of the act of choosing the personal law for the person in question, his or her community, or Indian society at large. This is a claim that might require more research, possibly of a sociological nature, which is beyond the scope of this book. But let us consider some possible meanings that this act of choosing the personal law could have, in order to colour in more thickly this argument for the value of the personal law system.

Subscription to the personal laws might be thought of a watered-down version of another deeply symbolic act—a monastic vow. Gerald Dworkin, in making a very different point, says something helpful to us about marriage vows:

(p.155) Consider, for example the notion of fidelity in marriage. By foreclosing in advance the idea of alternative sexual relationships (foreclosing not by declining options but by abandoning the very idea of an option) one can express to one’s partner the special character of one’s relationship. The abandoning of certain choices provides a way of manifesting in the clearest fashion that the relationship is of a special nature.92

Having the option of choosing a personal law, it might be argued, gives the person who wants to make a commitment to their faith the kind of expressive opportunity that marriage vows can. Such an option may be particularly important for religious autonomy because making a commitment, especially an irrevocable one, to a religion can have great symbolic value for some. In their daily lives, religious people may not have much of an opportunity to promote or aid their religion. They may have to work and raise their families, leaving them little time for proselytizing or fund-raising for their church (assuming that these are activities that promote their religion). In the face of such inability to create positive consequences for his religion, a deeply religious person trapped by commitments to family or other responsibilities may turn to symbol.93 If he cannot do anything for his religion, at least he can express that he is for his religion.94 The scope for martyrdom or similar grand symbolic acts is limited in tolerant societies where the religious may not be persecuted for their beliefs. But making an irrevocable commitment to live by the tenets of one’s religion, insofar as they are reflected in the personal laws, could be a way for him to express this sentiment. This expression is an expression of his autonomy in a significant sphere of his life.

The passion and conflict that surrounds the ‘personal law question’ in India is symptomatic of this expressive aspect.95 Consider this remark of Zoya Hasan, a prominent commentator on Indian political history:

The Jamiyat-al-Ulema-I-Hind took the lead in opposing changes in personal law stressing the need for safeguarding the sanctity of the Shariat, which became not only a symbol for representing Muslim identity, but the basis for claim to establish a status for the community commensurate with its substantial minority position. A powerful section of the Muslim leadership, pre- and post-Independence, has consistently tried to politicize religion as a means of safeguarding the community’s socio-religious (p.156) identity. Muslims in the 1920s used religious and cultural symbols which were relevant to all strata of the community […]. In the post-independence period this symbolism has come to rest entirely on laws pertaining to family and women.96

Hindu law has similarly been used as a symbol of Hindu unity.97

While the personal laws as well as the act of choosing to be governed by the personal law can have symbolic value in the lives of some religious people,98 other symbolism that could be associated with the personal law could harm the religious autonomy of those whose understanding of a religion deviates from the understanding enforced by the personal laws (like P299 and P4100 in ‘Freedom from Religion’). This is because the personal laws are based on an understanding of these religions that glosses over even strong differences in interpretation of religious doctrine. As elaborated in ‘Response to Internal Diversity’ (Chapter 2) codified Hindu law applies not only to those who identify as Hindu, but also to Buddhists, Jains, and Sikhs, and some others who may not consider themselves Hindu.101 Similarly, Muslim personal law applies regardless of ‘peculiarities in belief, orthodoxy or heterodoxy’.102 All those who are associated with these religions have this single state-endorsed interpretation applied to them. By giving effect to only one understanding of religious doctrine for each personal law group, the state could be seen as making a judgement on what positions are most authentic within those religious traditions. It might, thereby, be seen as implying that those individuals who subscribe to a different understanding of that religion are doctrinally misguided or insincere. The expression of such a view, coming as it does with the authoritative voice of the state, is likely to harm the self-respect and, therefore, the religious autonomy of all whose understanding of a religion deviates from that of the personal laws.103

Applying the personal laws might also detract from the religious experience of even those whose religious views coincide with the religious norms applied through these laws (P1 and P3). Returning to the analogy of marriage discussed earlier, for the personal law to be truly analogous to a marriage, we would have to imagine a completely different kind of marriage from the one we are used to. Consider, for instance, a situation in which the law on marriage provided that each party was obliged to do a certain minimum percentage of the housework, or show (p.157) affection for the other in statutorily approved ways. The law might further provide that the marriage obligations were not transferable to any other party, and that divorce was prohibited. Such a system would destroy much of the expressive function that marriage currently serves, because the parties’ motives in caring for and expressing themselves to each other would no longer be transparent. But because a religious person has to perform the religious obligations that the personal law enforces, because it is also the law, this may well cloud her motives to others and possibly even to herself, thereby, impoverishing her religious experience. This problem of transparency, which was elaborated upon in ‘Interference with Religious Practice’ earlier, weakens the claim that the personal law system is, for expressive reasons, unambiguously in the interest of the religious autonomy of even those whose understanding of a religion conforms closely to that of the corresponding personal law.

This chapter was devoted to examining the implications of the personal law system for religious options available to people. It found that the system harmed the option of religious practice and the option of refraining from religious practice. Several defences of the system’s effect on religious options—including the voluntary power-conferring nature of many personal laws and the possibility that the option of personal law enhanced religious practice—were considered and rejected. Overall, the personal law system’s impact on the religious options of those subject to it harms religious autonomy.

Notes

Notes:

(2.) See Dworkin (1982: 47, 61): ‘But, again, this would at most support the view that, with respect to a certain range of choices, it is desirable to have some options.’

(9.) Raz (1986: 375) cares about the variety of options, not their number.

(p.158) (10.) See Goodin (2006: 289, 302). Goodin (2006: 291) says that Kymlicka and other liberal multiculuralists believe that more options after the threshold point, ‘while not exactly making one “more autonomous”, makes one’s autonomy “more valuable.”’ The distinction sought to be drawn between is not clear, and in this book we will say that more options after this point make one more autonomous. Raz (1986: 375) does not seem to say much about this. He defends the necessity of an adequate range of options for autonomy, and makes it clear that an infinite number of options is not necessary, but his opinion on the situation in between is not clear. Confer Blake (2001: 269).

(11.) See ‘Religious Autonomy and Personal Autonomy’ (Chapter 3). For some helpful discussions in the context of the US constitutional law, see Lee v. Weisman 505 US 577 (1992); Torcaso v. Watkins 367 US 488, 489 (1960); Esbeck (1990: 513, 548).

(14.) It is true that this example is of a rather extreme case of denial of freedom for conventional religion. A state could be said to deny such freedom when it does a great number of things that liberal (and especially multicultural) states do (for example, celebrate religious festivals or recognize religious forms of marriage). The argument that application of personal law denies people options applies with less force than in the example of nun’s habit that has been provided. Moreover, whether the denial of all options but one, or the denial of just one option, is worse for autonomy depends on the factors outlined elsewhere in this chapter.

(16.) See note 48.

(21.) Of course, this claim is not likely to be true of all communities.

(22.) For the possibility that ‘exit’ is an indication of dissatisfaction with an association or organization, see Hirschman (1970).

(23.) See Shaheed (1994: 997, 1004); Spinner-Halev (2001: 84). Agnes (1996: 84) writes: ‘The argument against an optional code would be that a large majority of women do not have a choice and they will be excluded from the application of this act.’

(25.) See ‘General Family Laws’ (Chapter 2).

(p.159) (26.) See Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945.

(31.) For the proposition that coercive threats invade autonomy, see Raz (1986: 148–56).

(33.) To use Raz’s definition of a personal need (Raz 1986: 152).

(34.) For a more complete definition, Ibid.: 149.

(35.) Ibid.: 152.

(36.) At least in societies where religion is relevant.

(38.) The threat does not need to be explicit in these sorts of cases. Implied threats can be just as coercive.

(39.) See ‘Religious Autonomy and Personal Autonomy’ (Chapter 3). For some helpful discussions in the context of the US constitutional law, see Lee v. Weisman 505 US 577 (1992); Torcaso v. Watkins 367 US 488, 489 (1960); Esbeck (1990: 513, 548).

(41.) For the relationship of freedom to autonomy more generally, see Miller (2006); Raz (1986: 401–30); Waldron (1989: 1097).

(42.) This grouping is illustrative rather than exhaustive.

(43.) See ‘Relation to Religious Doctrine’ (Chapter 2).

(44.) This is not to exclude the possibility that some of P2 might want this personal law applied to them, even if their religious beliefs diverge from the personal law.

(45.) See Hindu Marriage Act 1955 section 2; Hindu Succession Act 1956 section 2; Hindu Adoptions and Maintenance Act 1956 section 2.

(48.) As an example, consider the fact that the testamentary power of Muslims (to whom the general law, the Indian Succession Act 1925, is unavailable unless they are married under the Special Marriage Act 1954) is limited by quantum and has restrictions on bequests to heirs (Fyzee and Mahmood 2008: 289–300). Consider, as well, the limitations on marriages that can be contracted under the Special Marriage Act 1954 section 4(a). Similarly, although it is (sometimes) possible for a Hindu born into a family that follows the coparcenary system to (p.160) ask for a partition, the norms of Hindu personal law may govern such a person from birth until the partition request. Such a partition is itself effected according to Hindu personal law (see Mulla and Desai (2000: 493–505). Further, a marriage under a personal law can only be governed (and, therefore, ended) by its norms, which can be problematic: first, because it is not unusual for people in India to marry so young that they cannot be assumed to have freely chosen the norms of personal law and second, because of the problems that being ‘bound’ in this way can pose for free choice (see ‘Enhancing Religious Practice?’ in this chapter). Additionally, as elaborated later, the social pressure to conform to personal law means that people are often forced to act in accordance with personal law.

(49.) See Hindu Succession Act 1956 section 20.

(50.) See Appendix B; ‘Avoiding or Exiting the Personal Law System’ (Chapter 2); ‘Freedom from Religion’ in this chapter.

(52.) He did not marry under the Special Marriage Act 1954 because he married before he had developed any position at all on these matters. Also see, ‘General Family Laws’ (Chapter 2) on why this Act is not a realistic option.

(53.) See Diwan (2000: 218); Subbarao (1979: 400). It is true that he could probably transfer assets to D during his lifetime to make up for D’s smaller inheritance, but this would not be a good substitute, for practical or symbolic reasons. Transferring assets during his lifetime would mean that A has to make do with less during his lifetime, which is not a consideration while making a will. Also, people often use wills to express attitudes towards others. These expressions may be seen as special, perhaps because the deceased is seen as being disinterested.

(55.) Roughly, negative freedom is used here to mean the absence of non-natural (particularly human) constraints external to the agent.

(56.) See ‘Recognition and Validation’ (Chapter 5).

(57.) Especially in a ‘Hindu undivided family’.

(58.) M’s religious beliefs require him to treat his daughter and son equally, but he is unable to because of his limited testamentary power.

(59.) It is not completely impossible that they would be so willing, out of respect for M’s wishes. But it is probably unsafe for M to depend on the magnanimity of these heirs to ensure that his property is disposed of as he would wish.

(60.) See note 68.

(61.) See Waldron (1989: 1149–52), discussing Raz’s concept of autonomy, explains how power-conferring rules relating to marriage make some unrecognized ‘marriages’ so unviable that they are no longer viable options.

(p.161) (62.) It is unlikely that there is anyone whose beliefs coincide completely, but there might be those whose beliefs are roughly similar to those in the laws.

(63.) The case of hypocrisy is not identical to the concern relating to transparency outlined below in this section. The hypocrite is denounced because he lacks the religious motivation, and performs religious acts out of unacceptable non-religious motivations. Ours is a case where the agent could have acted on religious motivations, that is, he could have been motivated by religion. He is just unsure whether he acted on that motivation. See Moberg (1987: 3–24).

(65.) Rather than, for instance, out of a desire to escape punishment from the state.

(66.) This will remain true even if Adam consented to the application.

(67.) See ‘Freedom from Religion’ in this chapter.

(68.) See Indian Penal Code 1860, section 403 and section 378.

(69.) See Eisenberg (1997) : 821, 848, emphasis added).

(71.) Ibid.: 305 (emphasis added).

(73.) Killing, maiming, etc.

(74.) This is not described as moral autonomy here to avoid confusion with different uses of that phrase (Waldron 2005: 307).

(75.) There are of course regimes of non-personal/secular laws that serve the functions that the personal laws do (in relation to managing property, etc.) without creating the problem of opaqueness. However, some might argue that there are reasons relating to peace and communal harmony to maintain the personal law system.

(76.) See Donoghue v. Stevenson [1932] AC 562, 580.

(77.) See Eisenberg (1997: 847). For a similar approach to the distinction between contracts and promises, see generally Kimel (2003).

(78.) Text to notes 69–72.

(79.) See Chapter 7.

(81.) Solanki (2011) shows the influence that the personal law system has on the norms of three different communities in India.

(83.) And the many other options—for example, to practise different religions—that this broad option represents.

(84.) Text and note 10 of the Introduction to this book.

(85.) Text to notes 9–11.

(p.162) (86.) By giving women weaker rights to inheritance and weak powers of marriage, divorce, adoption, and guardianship, most personal laws leave them with fewer options and less power over their own lives. Without such rights, women are denied valuable options, including the many options that lacking money closes. See Hasan (2005: 362); Cohen (2001). This might seem to be about personal autonomy, but it is also about religious autonomy.

(87.) See ‘Uniform Civil Code’ (Chapter 7).

(91.) This is one reason why some autonomy-reducing contracts are not enforced in liberal states (Kimel 2003: 129–31).

(96.) See Hasan (2005a: 204, emphasis added). Other reasons for resistance to change among Muslims in India are the fact that the preservation of the personal laws are seen as a matter of ‘honor’, ‘civic position’, and a ‘legitimate sense of exclusion’ (Nussbaum 2004: 35).

(98.) Certainly it has great symbolic value for organizations such as the All India Muslim Personal Law Board (AIMPLB). The stated aim of this organization is to ‘defend’ and to ‘protect’ Muslim personal law and to subvert ‘the conspiracy’ against it (All India Muslim Personal Law Board website, introduction).

(99.) P2 consists of those who self-identify in the same way that the personal law identifies them but whose religious beliefs differ from those of the personal law.

(100.) P4 consists of those who neither self-identify in the same way that the personal laws identify them, nor agree with the religious beliefs of the personal law applied to them.

(101.) See Hindu Marriage Act 1955 section 2; Hindu Succession Act 1956; Hindu Adoptions and Maintenance Act 1956.

(103.) See ‘The Idea of Personal Autonomy’ (Chapter 3) on self-respect and Chapter 5.