Legal scholars in colonial India and Mandatory Palestine produced novel theoretical works that were both sophisticated and critical. They also offered unique insights into the nature of law, generally, and the nature of ancient religious systems, their norms, and their institutions, in particular. Studying the history of this forgotten episode in the development of modern legal theory is important in its own right, but also because it contains valuable lessons for contemporary political debates in India, Israel, and many other countries. To demonstrate the contemporary relevance of the story told here, I will briefly discuss the study of legal theory in post-independence India and Israel and note the surprising resurgence of political interest in Hindu and Jewish traditions and values in recent years.

India became independent in 1947. The State of Israel was born a year later. In the decade following independence in both India and Israel, the prestige of lawyers and legal scholars seems to have declined. While the respective leaders of the two new states, Jawaharlal Nehru and David Ben-Gurion, had both trained as lawyers, they held lawyers and the law in low esteem.Footnote ¹

In a speech to law students in the period immediately preceding Indian independence, Nehru did not hide his contempt for law and legal traditions. “Lawyers have had their day,” he informed his audience. While they had led “public movements and public life” in the nineteenth century, they had since “faded further and further.” Lawyers once used to play a “very pre-eminent” part in the Indian nationalist movement, Nehru admitted, but “to-morrow is not for the lawyers. To-morrow is for the scientists, the industrialists, and the Engineers.”Footnote ² Nor was Nehru interested in the cultural–nationalist project of studying ancient Indian culture. “India is a very ancient land,” he said, but the “proud inheritance” of its traditions also constituted a disadvantage because the “long inheritance has brought dust and cobwebs of the past with it.”Footnote ³ Nehru’s speeches contained many other examples of a disparaging attitude toward law, lawyers, and ancient Indian legal traditions.Footnote ⁴

Given this attitude, it is no wonder that the English law professor J. Duncan M. Derrett noted, following a visit to Calcutta in 1953, that “the prestige of the law degree has gone down in recent years, that fewer and less enterprising youngsters are taking up law seriously as an academic interest and that fewer students regard the law as an attractive career.”Footnote ⁵ The decline of interest in legal education was mirrored in the condition of legal research in post-independence India. A commission examining the state of Indian universities after independence noted the neglect of the “scientific aspect” of law and an overemphasis on the professional aspect, remarking that “we have no internationally known expounders of Jurisprudence and legal studies. Our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an arena of profound scholarship and enlightened research.”Footnote ⁶

The life and ideas of Israel’s first Prime Minister, Ben-Gurion, were, in many ways, similar to that of Nehru.Footnote ⁷ One similarity was Ben-Gurion’s general low regard for law and lawyers. For example, in a 1949 speech, he declared:

As for Jewish law, Ben-Gurion had little interest in the topic. While the Bible, associated with the notion of ancient Jewish sovereignty and with the universalist and humanistic messages of the prophets, played a major role in his thought, Ben-Gurion, like many secular Jews of his generation, did not view either biblical or post-biblical Jewish law as a significant part of the core of Jewish identity.Footnote ⁹

While the leaders of the newly established states of India and Israel did not view law as an important aspect of their nation-building project, legal research in both places continued. Many textbooks on jurisprudence were published in postcolonial India. Some of these works argued that the Indian contribution to jurisprudence was to be found in the ability of Indians to synthesize conflicting jurisprudential approaches;Footnote ¹⁰ some talked about the spiritual nature of Indian jurisprudence;Footnote ¹¹ and others suggested that the distinctive nature of Indian jurisprudence was to be found in its “Third World” or socialist nature.Footnote ¹²

As for the study of Hindu law, in a lecture delivered in 1943, the legal scholar Nares Chandra Sen Gupta urged his listeners to place more emphasis on the academic rather than the practical study of law and jurisprudence, and called for the establishment of “a school for the study of Hindu law” at the University of Calcutta. He even suggested using the Tagore Law Lectures endowment to create:

However, it seems that this call went unheeded. After Indian independence, there was little interest among Indian academics, judges, and practicing lawyers in studying, researching, and teaching Hindu law.Footnote ¹⁴

The decline in interest in the academic study of Hindu law was accompanied by legislative reforms that sought to limit the impact of this legal system on the law of India following independence. Building on proposals from the 1940s, the Indian Parliament enacted the four Hindu Code Bills, which addressed marriage; succession; minority and guardianship; and adoptions and maintenance. The four acts, passed in 1955 and 1956, standardized and modernized the personal laws of Hindus (including Sikhs, Buddhists, and Jains). They included provisions that prohibited polygamy, allowed divorce, expanded female inheritance rights, and standardized adoption procedures.Footnote ¹⁵

A more comprehensive reform of India’s personal law system was envisioned in the Indian Constitution, which includes a directive that the state shall endeavor to establish a Uniform Civil Code, aimed at replacing the diverse religious personal laws inherited from the colonial period with a single set of civil rules applicable to all citizens, regardless of religion. However, this reform has not been implemented. Segments of the Muslim minority have historically opposed it, viewing it as a threat to religious autonomy, and in recent decades, the Uniform Civil Code has become closely associated with the political agenda of the Bharatiya Janata Party (BJP), India’s current ruling party.Footnote ¹⁶

Nevertheless, it would be wrong to assume that Hindu law does not influence the modern Indian legal system. Indeed, legal scholar Werner Menski has argued that the jurisprudential principles undergirding Hindu law – which do not accept the positivist identification of the notion of “law” with state law, reject the sharp distinction between law and morality, emphasize the importance of self-control and call for the use of social rather than legal norms, and also see custom as an important source of law – have had a growing influence on Indian society. Additional aspects of contemporary Indian law that, according to Menski, prove the impact of Hindu jurisprudential notions on twenty-first-century Indian law include the willingness to recognize differential statuses rather than unquestioningly accepting the abstract concept of equal citizenship or the emphasis on duties rather than on rights. Menski also mentions in this context the words of Indian Prime Minister Atal Bihari Vajpayee, one of the founders of the BJP, who argued in 2001 that Indian identity is based on ethics and morality, in contrast to the Western idea of the “rule of law.”Footnote ¹⁷ These words reflect the broader desire of today’s Hindu nationalists to emphasize the importance of ancient Indian history, traditions, and values, and contrast them to Western law and its values.Footnote ¹⁸

A concrete expression of this desire to emphasize the particularist character of Indian law by connecting it to Indian traditions can be found in the realm of criminal law reforms. In 2024, India replaced its Penal Code, Evidence Act, and Code of Criminal Procedure (all of which were British enactments either created during, or derived from, the colonial era) with new legislation. While these reforms were officially presented as part of the process of modernizing the law, they were simultaneously framed as a reassertion of Indian civilizational values. In describing the reforms Amit Shah, the Indian Minister of Home Affairs (and a leading BJP politician) said that the new codes reflected the “Indian spirit.” The criminal justice system, he asserted, is “becoming completely ‘Swadeshi’ (made-in-India),” echoing the “Indian ethos.” This ethos, he explained, was based on the promotion of “nyay” (justice) instead of “dand” (punishment).Footnote ¹⁹ The Indian government also characterized the enactment of the three new codes as part of a process of “decolonizing” Indian law. Some critical scholars argue that the “deployment of the language of decolonization may be a means to consolidate … Hindu nationalism,” by contrasting Western law with an essentialized (and therefore false) version of “Indian culture and tradition.”Footnote ²⁰

The cultural nationalist ideas which are now being promoted by BJP politicians are indirectly linked to the intellectual legacy of the Indian scholars discussed in this book. The reformer of the University of Calcutta, Asutosh Mookerjee, played a pivotal role in mentoring many early twentieth-century legal scholars at the University of Calcutta and beyond. His son, Syama Prasad Mookerjee, it might be recalled, was a colleague of Radhabinod Pal at the University of Calcutta. The younger Mookerjee is also widely recognized as a key ideological forerunner of the BJP and is accordingly revered by the party and its supporters.Footnote ²¹ However, the body of scholarship that Asutosh Mookerjee’s followers created is all but forgotten.

Turning now to Israel, the decade after 1948 saw the publication of several books on legal theory.Footnote ²² There was also some practical, scholarly, and pedagogical interest in Jewish law. In the 1950s, Israeli legislative drafters sometimes attempted to use Jewish law notions in new legislation. One of the first justices appointed to the Israeli Supreme Court, Simha Assaf, the former Rector of the Hebrew University, was an expert on Jewish law, and his appointment as a judge was seen as a way to introduce Jewish law notions to Israeli case law. Several quasi-academic and academic institutions operating in Israel in the 1950s and early 1960s were devoted to studying Jewish law. One of these institutions was the Harry Fischel Institute, established in 1932 and affiliated with the Chief Rabbinate. There was also a short-lived institute for the study of Jewish law established by the Israeli Ministry of Justice after Israeli independence. The curriculum of the newly established Faculty of Law at the Hebrew University in the 1950s contained required courses on Jewish law. In 1963, the Hebrew University established an academic Institute for the study of Jewish law. This body was headed by Menachem Elon, a Tel Aviv School of Law and Economics graduate. Elon’s agenda, as an academic scholar and later as an Israeli Supreme Court justice, was to continue the Jewish legal revival project championed by the founders of the Tel Aviv School of Law and Economics. Some professors teaching at the Tel Aviv School in the 1950s, including Eisenstadt and Dikshtein, continued studying and teaching Jewish law driven by the same scholarly motivation that guided their work during the period of the British Mandate.Footnote ²³

However, the influence of Jewish law on Israeli law remained insignificant.Footnote ²⁴ Most Israeli politicians, government officials, and legal scholars did not identify with the ideology of Jewish legal revival. Instead, they favored a vision of the modernization and Westernization of the legal system inherited by Israel from the Ottoman and British periods. In the 1950s, the Israeli Ministry of Justice created a flagship program on comparative law: the Harvard–Brandeis Cooperative Research on Israel’s Legal Development Program. This legal research project was established jointly by the State of Israel and Harvard University (joined later by Brandeis University). The program sought to provide comparative law data on the legal regimes of various modern states, data that would be used to draft new Israeli legislation. Attempts by Israel’s Chief Rabbi, Isaac Herzog, and by Yeshiva University Professor, Samuel Mirsky, to participate in the program and use it as a platform for the study and codification of Jewish law were rebuffed by the officials of the Israeli Ministry of Justice.Footnote ²⁵

Just as in the case of India, in Israel, too, the last few decades have witnessed a resurgence of political interest in ancient religious traditions and also legal ones. This trend is associated with the decline in the political power of the secular Founding Fathers’ generation that established the State of Israel, coupled with the rise in power of right-wing and religious parties. In 1977, the Likud party came to power in Israel. This party, initially secular and liberal, gradually aligned itself with the conservative and religious side of the Israeli political spectrum.

In 1980, under a Likud-led government, the Israeli Parliament enacted the “Foundations of Law Act.” The origins of this Act were not rooted in deliberations about the optimal connection between Israeli and Jewish law. Instead, the Act sought to answer the technical question of which sources Israeli courts should turn to when gaps arise in existing law, instead of relying on English law as they had during the British Mandate period. The vague formulation that was ultimately adopted, as a result of a compromise, stated that judges should turn to the “principles of freedom, justice, equity and peace of Israel’s heritage” (rather than to “Jewish law”).Footnote ²⁶

Since its enactment in 1980, the Foundations of Law Act has failed to significantly impact Israeli case law. The vagueness of its provisions, coupled with the fact that secular judges still dominate the Israeli judiciary, has meant that, in practice, there has been relatively little use of Jewish law in Israeli case law.Footnote ²⁷ However, as Israeli society and its politics have become less secular in recent years, the desire among politicians in the Israeli Parliament to force the courts to turn to Jewish law has intensified. A 2018 amendment to the Foundations of Law Act, initiated by members of parliament belonging to the Likud, as well as Religious-Zionist and Ultra-Orthodox parties, amended the Act by inserting the term “Jewish law” before the vague term “Israel’s heritage.” Thus, the amended Act now calls on judges to use “the principles of freedom, justice, equity and peace of Jewish law and Israel’s heritage” in filling gaps in the law. Notwithstanding this amendment, courts are still reluctant to turn to Jewish law.

The legislators who revised the Foundations of Law Act in 2018 are probably not familiar with the works and ideas of the interwar Jewish scholars that I discussed in this book. Nor do they seem to share a similar ideological outlook. Many of the interwar scholars were secular, Westernized, and firmly opposed to rabbinical involvement in the reform of Jewish law, whereas most contemporary legislators advocating for a greater role for Jewish law in Israeli law today hold significantly more traditional views.

Thus, in both India and Israel, the decline in interest in ancient religious traditions (including law) immediately after independence has been reversed in recent decades. In India and Israel (but also in the Islamic world and the Far East), some modern politicians and intellectuals claim, as part of a more general rejection of Western liberal values, that there is an inherent tension between the institutions, norms, and values of the West and local religious traditions. Interest in non-Western traditions has therefore morphed and reappeared in the early twentieth century in a new, more nationalist guise. In both India and Israel, nationalist parties such as the BJP and Likud are making political use of ancient traditions in a bid to move away from the secular and modernist legacy of the early post-independence period.Footnote ²⁸ For example, in India, the commitment of Hindu nationalists to democracy (in the sense of majoritarian rule), and even claims that India is “the mother of democracy,” are now accompanied by authoritarian impulses.Footnote ²⁹ In Israel, in recent decades, alongside the still unsuccessful attempt to compel the courts to make greater use of Jewish law, we have witnessed the rise of new forms of illiberal Jewish fundamentalism among the Religious Zionist section of Israeli society. Some of the thinkers and politicians associated with these new forms of fundamentalism reject Western democracy and its liberal values in the name of what they (falsely) claim is Judaism.Footnote ³⁰

However, Hindu and Jewish traditions are not uniform and homogenous in the way that modern political ideologies often are. Ancient normative systems that have existed for thousands of years are deep, rich, and multi-vocal. They can be used to further anti-democratic and anti-liberal values and practices: to mark insiders and outsiders, friends and enemies of the nation, and to create divisive social hierarchies within national communities. One can also find in them universal values and humanistic messages that resonate with modern democracy and modern liberal ideas.Footnote ³¹

Looking back at the works of the early twentieth-century legal scholars discussed in this book may provide a more nuanced perspective on religious legal traditions than the one currently offered by contemporary politicians and intellectuals in India and Israel who advocate authoritarian and illiberal policies. The particularism of the Indian and Jewish scholars of the early twentieth century coexisted side by side with universalist tendencies. While they were keen to study their ancient systems, this was not to highlight their difference from Western legal systems but to emphasize their compatibility with Western democratic and liberal notions. Nationalist particularism led, in the case of the early twentieth-century Indian and Jewish scholars, to a desire to embrace humanism and universalism. The scholars discussed in this book sought to reconcile modernity and tradition, Western and non-Western norms and values, depicting in their works religious legal systems not as the binary opposites of Western law and values but as its twins. Indeed, sometimes they even argued that the very origins of modern Western law and its institutions and values were to be found in ancient Hindu and Jewish law. Their ideas are, therefore, important not merely as matters of historical interest. They are vital to understanding, and influencing, debates unfolding today over the role of democratic and liberal norms, institutions, and values in India, Israel, and many other parts of the world.