Law, Colonialism and the religious place in India

Abstract

This thesis examines the difficulties surrounding the legal regulation of religion. These difficulties are caused by the inability of law to coherently identify religion as an entity, which results in every human activity having the potential to be considered religious. Social theory universally accepts the view that all societies undergo a process of secularisation wherein religion recedes and fades away. The failure of law to regulate religion is seen as the inadequacy of law itself, and as evidence of that society?s inability to secularise. Within this theory of secularisation there is no attempt to theorise religion. In order to analyse these difficulties I identify a particular legal category which is the religious place or ?the place of worship? for investigation. I propose that such difficulties are due to the colonial origins of the Indian legal system and a conceptual framework that is based on Western law and culture. Therefore an archaeology of colonial legal discourse must form the mode of investigation. I argue that that the unintelligibility of religion within law is due to the dynamic of theologisation in which idolatry as a concept plays a central role. Theologisation is the process of bringing about ?religion? in legal discourse and is behind the making of our secular legal systems. The cultural history of theologisation, and the structural resemblance that it bears to the manner in which religion (in the form of Christianity) has spread in the West, forces us to rethink the nature of the religious and the ?secular?. This has implications for our understanding of the Indian legal system and the emergence of Islamic law in a particular form and structure in the post-colonial period.