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The Wheel of Law

The Wheel of Law: India's Secularism in Comparative Constitutional Context

Gary Jeffrey Jacobsohn
Copyright Date: 2003
Pages: 344
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    The Wheel of Law
    Book Description:

    How can religious liberty be guaranteed in societies where religion pervades everyday life? InThe Wheel of Law, Gary Jacobsohn addresses this dilemma by examining the constitutional development of secularism in India within an unprecedented cross-national framework that includes Israel and the United States. He argues that a country's particular constitutional theory and practice must be understood within its social and political context. The experience of India, where religious life is in profound tension with secular democratic commitment, offers a valuable perspective not only on questions of jurisprudence and political theory arising in countries where religion permeates the fabric of society, but also on the broader task of ensuring religious liberty in constitutional polities.

    India's social structure is so entwined with religion, Jacobsohn emphasizes, that meaningful social reform presupposes state intervention in the spiritual domain. Hence India's "ameliorative" model of secular constitutionalism, designed to ameliorate the disabling effects of the caste system and other religiously based practices. Jacobsohn contrasts this with the "visionary" secularism of Israel, where the state identifies itself with a particular religion, and with America's "assimilative" secularism.

    Constitutional globalization is as much a reality as economic globalization, Jacobsohn concludes, and within this phenomenon the place of religion in liberal democracy is among the most vexing challenges confronting us today. A richly textured account of the Indian experience with secularism, developed in a broad comparative framework, this book is for all those seeking ways to respond to this challenge.

    eISBN: 978-1-4008-2557-8
    Subjects: Political Science, History
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Table of Contents

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  1. Front Matter (pp. i-vi)
  2. Table of Contents (pp. vii-x)
  3. PREFACE (pp. xi-xvi)
  4. ACKNOWLEDGMENTS (pp. xvii-xx)
  5. Chapter One INTRODUCTION: Ashoka’s Wheel (pp. 1-18)

    In 1989 the United States Supreme Court considered the case of Gregory Johnson, a young man whose fiery protest against the policies of the American government became an occasion for reflection on the symbolic significance of the American flag. The only thing that was certain about Johnson’s defiant actions outside the 1984 Republican Convention, however, was that a cloth representation of some aspect of American identity was incinerated in front of a number of passersby, including several who were visibly outraged. Concerning the larger meaning of what was consumed in the flames that leapt from a Dallas, Texas, sidewalk, much...

  6. Part One: Three Models of Secular Constitutional Design
    • Chapter Two NATIONS AND CONSTITUTIONS: Dimensions of Secular Configuration (pp. 21-53)

      These words were included in an address entitled “The Principles of Social Reform,” delivered in 1897 by G. Subramania Iyer to the Madras Hindu Social Reform Association. The passage emphasizes four points: (1) India is at a comparative disadvantage in its capacity to address the existence of evil in society. (2) Understanding social evil in India requires familiarity with Hindu society. (3) A government “of the people” would befor the peoplein the sense that its popular mooring would ensure efforts to counteract entrenched and severe social ills. (4) The Hindu religion lacks the organizational structure to mobilize effectively...

    • Chapter Three SECULARISM IN CONTEXT (pp. 54-90)

      Two statements on the subject of secular principles in India: (1) “[T]he individual should be the unit for policies and laws of the State, and not the religion or caste to which he belongs or the region in which he lives; . . . nothing should be conceded to a religion-based group or organisation which is denied to or not available to a secular group or organisation; . . . nothing should be conceded to a group or organisation of one religion which is denied to or not made available to groups or organisations of other religions.”¹ (2) “[S]ecularism, according...

    • Chapter Four INDIA: THE AMELIORATIVE ASPIRATION (pp. 91-122)

      “This court cannot be too cautious in upsetting practices embedded in our society by many years of experience.”¹ The specific practice referred to by Justice Stanley Reed in this 1948 American case was a released time program enabling students to receive religious instruction without leaving their public school. Among the majority who voted to invalidate the program over Justice Reed’s objections were several justices whose caution in exercising their judicial power had been well established over many years on the Court. They perhaps did not concur in their colleague’s assessment of embeddedness, or if they did, believed their uprooting of...

  7. Part Two: Constitutional Perspectives on the Challenge to Secularism in India

      The year is 1825. United States President John Quincy Adams aggressively pursues the battle against slavery, exploiting the full range of his presidential authority. That includes removing the governments and dissolving the legislative assemblies in three states, Virginia, Mississippi, and South Carolina. A proclamation detailing the ways in which the elected officials of these states have forfeited their right to remain in office triggers the machinery of removal. The extreme measures are a response to the advancement of policies by the state governments in direct violation of the provisions of the Constitution as interpreted by authorities in Washington. Through their...

    • Chapter Six CORRUPT PRACTICES: Religious Speech and Democratic Deliberation (pp. 161-188)

      Several years ago, the governor of Mississippi made what many people thought was an outrageous observation when he asserted that America was a “Christian nation.” For the outraged, few statements could have matched the governor’s in what it revealed about a political leader’s fundamental disregard for the essentials of American democracy.¹ The governor, however, had no need to fear political retribution; after all, the intensity of the outrage precipitated by his statement correlated strongly with the distance one traveled from his state. Nor had he any need to fear any serious legal repercussions, it being quickly evident that a principled...


      The philosophical limitations of political liberalism in providing a strong rationale for regulating religious rhetoric in the electoral arena is only one part of the story of judicial engagement in theHindutva Cases. The remainder of the story is also concerned with liberalism’s significance in the constitutional politics of Indian secularism. But in this installment—which could be titledThe Mystery of the Hindutva Cases—our concern is less with the formal structure and internal coherence of the opinions and more with possible judicial uses of liberal argumentation in the ongoing power struggle over the meaning of Indian national identity....


      India and Israel have recently marked a half-century of national independence, and the United States joined both countries in celebrating the democratic successes of these experiments in statecraft. Often the tributes became effusive when noting the extraordinary obstacles surmounted in order to achieve this success. But precisely these obstacles will cause many to temper their enthusiasm for fear that, even after fifty years, the validation of democratic accomplishment may yet come to be seen as premature. While each obstacle alone—for example, living in a hostile neighborhood—threatens to disturb the equilibrium of democratic practice, the specter of religious and...

    • Chapter Nine CONCLUSION: Toward Secular Convergence (pp. 265-290)

      “In interpreting the provisions of this chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this chapter, and may have regard to comparable foreign case law.” These words, taken from Section 35 of the new South African Constitution, are an invitation to judges in the postapartheid republic to seek outside help in the construction of a constitutional jurisprudence.¹ They suggest a model of constitutional development that is outward looking...

  8. BIBLIOGRAPHY (pp. 291-310)
  9. INDEX (pp. 311-324)