Islamic Law of Inheritance; Negotiating History and the Challenge of Modern Muslim Society

Ahmad Shams Madyan

(Paper Collection: January 2012)

Islamic law of inheritance has been one amongst significant controversies, both inside and outside Muslim community. This "law" in particular is challenged by the discourse of modernity, ranging from the questions of democracy, gender equity, and social justice. It is interesting to talk about the Islamic law of inheritance as a tradition that is still being practiced by modern Muslim society. The law itself may be seen from the perspective of Western popular ideologies as the picture of gender biased practices that are still performed by such patriarchal society.

In fact, it has always been problematic for us to place religion in the midst of modern challenges. “Modern” means that the shifts and the structures of the world become more complex, busy, efficient, and productive. When dealing with the issue of family law particularly that concerns the regulation of wealth distribution (inheritance), it means that the issues of equality, gender and human right come up as things that should be taken into accounts.

There are at least three attitudes of Muslims to regard this doctrine in particular. Two of them are the extreme examples of Muslims who accept or reject. For Muslims who accept the doctrine, they simply understand that the text is given without any need for interpretation since the text is already clear as mentioning exact numbers and partition of the wealth, while the other extreme is those who simply reject the notion of justice in the doctrine of Islamic inheritance since the text does not confirm the spirit of gender justice in any sense at all.

In regard to modernity, Robert N. Bellah describes Muslims by dividing them into two extreme categories (Beyond Belief: 2000), the first is Muslims who who understand religion as some thing permanent, completely divine and un-changeable. To see the law of inheritance, for instance, they understand it as the doctrine is literally given by God that must be accepted willingly. Hence, what they must do is only to obey their God. Abdul Hamid Ishaq, a South African Muslim scholar from Madrasah Ta’lim al-Dien, is the example when he said “…The fact that the inheritance is essentially a gift from Allah Ta'ala and as such it is His prerogative to give to whomsoever what He wishes…”

On the opposite, the second extreme category is represented by secularist Muslims who view the teachings of Islam, including the law of inheritance, as one among irrelevant doctrines which should be left out. This second stream sometimes represents a strong rejection to Islam as “way of life”. They believe in Islam as no more than a spiritual path.

As Bellah seems to support the need for mid-understanding of Islamic doctrines which can be adaptive to modern challenges This writing is taking a side to highlight the third-mid category as they are Muslims who pursue to negotiate the doctrine of inheritance through the lens of modernity. They neither accept nor reject, but negotiate and reinterpret the doctrine by considering the doctrine along with some sociological and historical analysis.

The question is how Muslims negotiate this doctrine? Why this third category of Muslims think that it is necessary for them to reinterpret the law of inheritance so that it can survive.

Inheritance in Early Islam; a Defense

In the pre-Islamic era (Jahiliyah period) women did not inherit and only men could inherit. This was the social setting in which Qur’anic verses of inheritance were revealed. Islam therefore, has transformed the status of women from being neglected to being recognized as legal heirs with fixed shares. Thus, the transformation of the status was revolutionary at that time.

Before the detailed verses of inheritance have revealed to the prophet, every body was asked to make bequests for his family members. Nevertheless according to the custom of Arabs before Islam, some male relatives would take whatever the deceased left behind.

When Aus bin Malik (R.A.) passed away, he left behind a wife, two young daughters and an infant son. Here again the cousins of the deceased took away whatever was left behind. The widow of Aus bin Malik (R.A.) brought her complaint to the Prophet Muhammad (PBUH) and informed him that she and her children were totally deprived of their inheritance. The Prophet (PBUH) asked her to be patient until God reveals something in this regard. On that occasion the following verse was revealed: "And for the males is a share of what has been left behind by the parents and relatives and for the females is a share of what has been left by the parents and relatives." (4:65)

Not long after that, a similar incident occurred with the widow of Sa'ad bin Rabi' (R.A.). It was reported by Ibn Kathir (774) that the wife of Sa’ad bin Rabi’ (Ummu Kuhhah) had come to the prophet Muhammad PBUH and said “Oh Rasulullah, these are the two daughters of Sa’ad bin Rabi’ who was killed as a martyr in the battle Uhud, and their uncle took all his possessions and did not give them any thing”. Soon afterward the Qur’anic verses on inheritance were revealed to Muhammad in which it was stipulated that two daughters together, in the absence of sons, receive 2/3 of the estate. On the basis these Quranic verse Prophet Muhammad was reported to have ordered the uncle to give to he two-daughters 2/3, and to the wife 1/8, and to keep the rest. Finally, on this the detail laws of inheritance were revealed.

Was Islam discriminative against women?

Looking from the perspective of modern gender justice, It is true that women were discriminated by men in the early period of Islam. But, the discrimination was not suffered only by Arab women. In fact, we can find such discrimination against women in the more modern civilization such as the English Common Law which does not give the right for women to own their properties until 1880s.

In the United Kingdom, the Married Women's Property Act was only approved by Parliament as late as 1882 to abolish the previous law, which stated that a married woman couldn’t hold any property independent from her husband. A similar situation happened also in France, whereby this right was only recognized in 1930s, which is actually less than 100 years ago. This is how the early societies dealt with the matter of inheritance and the distribution of wealth, where the treatment is favorable to men, while women were treated as the second-class creations. (Rafidah Abdul Jamal; The Issue On Inheritance: The Unfair Treatment of Women?)

Such this fact need to be exposed to examine fairly how the unbalanced treatment on women is also improved by the new set of rules introduced by Islam in its era. Indeed, .....


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