Although half a world apart geographically, the United States and India are similar in important respects. Each was once a colony of Britain, though the colonization and independence of the United States preceded India’s by roughly a century-and-a-half. Each experienced secessionist movements—successful against India as British rule came to a close, suppressed in the mid-nineteenth-century United States. Both now have democratic political systems. Both have secular states. Both are religiously pluralistic. Both have legal systems that, in varying degrees, retain elements of the British common law. Each has institutional and ethical elements of constitutionalism, including a written constitution and a supreme court that plays a prominent constitutional role. Historically, each nation has rested on strongly gendered assumptions about rights, roles, hierarchy, and responsibilities in social, civic, and political spheres. In each to different degrees, social class has been a marker of status and inclusion. And many political and legal elites in each have embraced, in various ways, values of modernity.

Given these similarities, how to explain differences in the trajectory and content of legal change in India and the United States? For that matter, how to explain the differences between India and recent post-colonial regimes in South Asia, Africa, and the Middle East? These are the questions of Narendra Subramanian’s insightful book, Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India. As the title suggests, Professor Subramanian approaches these questions through an examination of family law—especially as family law is inflected and reflected in religious institutions, values, and practices, and as it implicates the social statuses of gender and (to a lesser extent) class.

The substance of family law (or, in India’s case, “personal law”) is itself diverse. It includes laws regulating marriage, separation, and divorce, laws governing sexual conduct, laws regulating the management of familial property, laws prescribing modes of inheritance, and laws governing adoption and guardianship. The focus on family law is apt, not only because it provides a window onto dynamics of political and legal change, but also because it is an important site for understanding the relationship between state and society and for understanding how disputes over basic values (both religious and secular), civic status, legal rights and obligations, and political inclusion are implicated in the project of building a nation.

As Professor Subramanian points out, there is no single path to nationhood for a post-colonial multi-cultural society, nor is there a single form of modernity toward which nation states may gravitate. There are, however, structural relationships within which change happens. Borrowing from Michel Foucault, he observes that discourses about nations, constituent cultures, and forms of modernity, along with discourses about and reconstructions of traditions, influenced projects to make citizens, establish norms for recognizing religious and other cultural groups, and shape family. A key word here is “influenced.” Professor Subramanian rejects the notion that the trajectory or content of change is determinate. In the context of India, the mutual interaction of colonial legal forms and requirements, social reform agendas of anti-colonial and post-colonial nationalists, and post-colonial multi-cultural politics produced a new post-colonial regime. The chief agents for this process—at least the agents who are central to his account—are elites. These agents come in a variety of forms, from a host of social sites, with a wide range of values, visions of nationhood, and strategies for change. They are lawyers and judges and bureaucrats. They are political elites. They are religious figures. They are secular intellectuals. And they are social activists who are variously animated by religion, tradition, feminism, and human rights.

It is no surprise that public actors are important to the story of legal change, given their role as gate-keepers to the creation and enforcement of positive law. Professor Subramanian’s insight is that public actors did not deploy a thoroughly Western conception of modernity, but instead developed their own understandings of the forms of modernity that are appropriate for particular societies, based on local traditions, social forms, social mobilization, and prior (think “colonial”) arrangements. This permitted public actors—in conversation with persons and groups in civic spheres—to deploy autochthonous conceptions of modernity in the pursuit of goals of national cohesion, cultural de-colonization, the management of ethnic and religious difference, and maintaining and changing social structure.

Viewed through the eyes of colonial governors and administrators, personal laws in Colonial India were useful devices for social control in a multi-cultural environment. In colonial India, there were three major systems of personal law, each rooted in religion: Hindu, Muslim, and Christian. Colonial rule witnessed the rise of religious mobilization for legal change among Muslims and Hindus, but interestingly not among Christians. Some mobilizers (both Hindu and Muslim) were seeking versions of modernity, including greater equality with respect to gender. Others, more conservative, wanted privilege for certain castes or groups, and sought restrictions on women.

Initially, Islamic scholars and elites had resisted the colonial incorporation of Islamic law into personal law. Over time, however, they came to view Muslim personal laws as importantly linked to Muslim identity. Having made that shift, they became invested in the content of Muslim personal laws. Religious elites and secularized Muslim intellectuals successfully advocated statutory changes in the law during colonial rule. The dynamics of Hindu mobilization in the same period followed a slightly different path. Just as Islam had sacred texts and commentaries that informed the content of personal laws, so too did Hinduism. Colonial lawyers, courts, and bureaucrats, however, took liberties with Hindu sources, creating the image—or illusion—of what Professor Subramanian calls a “pan-Indian Hindu tradition.” One consequence was that Hindu mobilizers tended to adopt strategies that were less oriented toward change than did Muslims in the same period.

In the transition from colonial to post-colonial rule, Indian nationalism began to flourish. To complicate matters, there were multiple versions of Indian nationalism: Two became especially significant during and after the struggle for independence. The modernist nationalists, including Jawaharlal Nehru, embraced a centralized state, economic development, parliamentary democracy, and secularism. They supported changing personal laws to promote greater equality (with respect to both gender and caste), though they would temper this value with respect for groups’ norms. Moderate traditionalists, like Mohandas Gandhi, embraced a different vision. Gandhi imagined a nation that was decentralized and agrarian: a non-industrial nation of villages. Although he was no egalitarian, Gandhi urged better conditions for the lower castes and weakening the doctrine of untouchability. As India approached independence, Nehru and Gandhi united under the umbrella of the Indian National Congress.

After the Partition in 1947, the INC formed a governing majority and embraced an agenda that included reforming Hindu law and retaining minority personal laws. Why the decision not to change minority laws? Dominant scholarly opinion has held that the failure to reform personals laws for Muslims and Christians was because minorities did not wish to change their personal laws, and Hindus wanted to accommodate minority preferences. Professor Subramanian shows how this view misses much of what was happening in Indian politics, law, and society in the first post-colonial decade. In fact, many Muslims and a growing number of Christians were not only open to, but actively arguing for, legal reform. Again, why the INC’s focus on Hindu law? One answer is that many in the INC saw the reform of Hindu laws as a foundation for a new Indian citizenship.

The reform of Hindu personal laws in the first decade was not a decisive step toward modernity—certainly not toward a Western version of modernity—for the impetus for much of legal change derived from a combination of colonial Hindu law, pre-colonial religious texts and practices, and an evolving image of a “reformed Hinduism” that was informed by a distinctly Indian modernity. And the need to preserve broad-based political alliances (i.e., the need to hold onto traditionalist allies) meant that modernists could not attack many lingering practices of patrilineage and patriarchy even if they had wanted to do so. Still, there was genuine reform, including the promotion of monogamy as an officially sanctioned marital form, greater economic independence for women, and increased respect for the “autonomous choices” of marital partners. To recognize these changes is not to suggest that policy elites were motivated by sympathy for an agenda of women’s empowerment. They were moved instead by considerations of “national and community revitalization, legal rationalization, and democratization.”

Beginning in the 1960s, things began to change more dramatically. There were two reasons. First, as Indian democracy took root and the authority of the post-colonial state became more firmly established, governing elites began to shift their attention from the consolidation of authority to “addressing demands pressed by a more mobilized civil society.” This trend accelerated after the mid-1970s. Second, urbanization and industrialization reduced the importance of landed property, which in turn weakened the system of lineages and extended families that had excluded women from participating in ownership. All of this tended to reinforce the prominence of the nuclear family as the principal social unit. It also, predictably, had an impact on the dispositions of political elites and on the composition of governmental bureaucracies. We may add to this mix a newly expanded role for judges and the rise of interest groups that are part and parcel of political life in a complex democracy that includes space for civic association.

Beginning in the 1980s, the Congress’s modernist-pluralists were challenged by a majoritarian strain of Hindu nationalism in the form of the Bharatiya Janata Party (BJP). In its early years, BJP advocated a general Uniform Civil Code designed to regulate family life along the lines of majoritarian Hindu norms and doctrines. But when it came time to govern—when BJP led coalition governments between 1998 and 2004—the Party’s need to maintain its coalition (which included some religious minorities) prevented it from pressing for a UCC. And the rising influence of women’s organizations and other rights organizations inhibited BJP from pursuing policies that would have antagonized those groups. In fact, although Hindu nationalists had vigorously opposed changes to Hindu personal laws in the first post-colonial decade, BJP began “to support certain initiatives to empower women.”

Thus, as political elites gradually changed “their understanding of the forms of family life appropriate for India,” Hindu women gained access to joint and family property, divorce became permitted for cause (though women’s groups successfully opposed divorce for irretrievable breakdown), and courts increasingly protected women from domestic violence.

But how would the nation deal with change in familial norms specific to minority religions? Muslim organizations actively advocated change to Muslim personal laws. They did so in both legislative and judicial forums. They argued for invalidating polygamous marriages. They argued for extending inheritance rights in agricultural land to women. They argued for an increase in dower amounts and for giving women, rather than their husbands’ families, control of their dower after marriage. They argued for abandoning the Sunni rule barring dower for women who petition for divorce in community courts. They argued for an expansion of women’s access to divorce in community courts, even in the absence of their husbands’ consent. They argued for inclusion of women in mosque councils.

In the late 1970s, Christians, too, began increasingly to advocate change to the personal laws pertaining to them. They wanted liberalization of the grounds on which divorce might be granted and the equalization of grounds between husbands and wives. They wanted the right to adopt children. (Indian law had prohibited adoption by Christians out of fear that allowing adoption would substantially increase the Christian population—and therefore dilute the Hindu majority.) And they wanted ministers of all sects—not merely Anglicans, Scottish Presbyterians, and Catholics—to be governmentally authorized to solemnize marriages. They wanted to equalize shares in marital property, between husbands and wives. They wanted to end the doctrine that a spouse (typically the husband) had a right to the other spouse’s (typically the wife’s) “conjugal company.” They wanted to eliminate categorically the practice of child marriage. They wanted to give widows priority over other kin in inheriting the deceased husband’s property, even if there were no children. They wanted to invalidate prenuptial agreements “that deprived widows of their husbands’ property.”

It is notable just how modernist were these religiously motivated claims—both Muslim and Christian—more modernist even than parallel provisions of secular law. Still, Professor Subramanian observes that many of the claims by both Muslims and Christians found a receptive audience among legislators, judges, and bureaucrats. The reasons were twofold. Relevant elites came to be more familiar with minority cultures and traditions, including the norms of family life that minorities valued. And the views of policy elites themselves were liberalizing over time, making modernist policies less threatening.

The rise of interest groups in litigation (and other forums) after the 1960s and the increasing involvement of courts as makers and changers of policy appear to be consistent with the increasing visibility of courts in other nations—including the United States—around the same time. Despite these similarities, one difference is striking: Although much family law in the United States has been steadily “consitutionalized” in the past century, the story of change in the family law of India has had very little to do with the Indian Constitution or with constitutional law. What accounts for this difference? The answer to this question rests on the many and varied aspects of cultural experience that help to explain how polities can move in different directions. In demonstrating how this is so, Professor Subramanian has provided a splendid piece of scholarship.