We are proud to announce that the winner of the Bayyinah Dream Programme sponsorship award was Hareem Ahmad from New Jersey.
I Will Solicitors ran the sponsorship, which was open to all students of the 2014/15 Bayyinah nine-month intensive Dream Program, due to begin in September. We requested students to submit essays on one of three topics, with the winner obtaining a 50% sponsorship from I Will Solicitors towards the course fees.
We were pleased to receive an excellent level of submission from students and thank everyone who took the time to submit an entry. We would like to congratulate Hareem on her success and wish her the very best for her studies.
Below we have re-produced Hareem’s submission under the title; ‘the Justice of Islamic Inheritance law’.
Islamic Inheritance Laws exist to equitably distribute the property of a deceased Muslim to those best entitled to it, starting with the nuclear family. The intestate method of distribution, which does not allow for favoritism, helps preserve the family unit, which is the basic building block of an Islamic society. Furthermore, the distribution of wealth reflects the Islamic principles of maintenance in the shares of male vs. female. Males have an economic responsibility to their nuclear and extended families, because Islam’s goal is to establish a basic standard of living for all Muslims. The Islamic Laws of Inheritance also redistribute wealth in families every generation, which helps prevent consolidation and monopolization of wealth and the resulting wealth gap in society. The primary objective of these laws is to distribute wealth justly, in line with Islamic ethics, and thereby preserve the family unit and promote an Islamic society.
Justice of Islamic Inheritance Law
BismillahiRahmaniRaheem. In the Name of Allah, most Beneficent, most Merciful. The below essay reflects my limited understanding of the Islamic Inheritance Laws. Any valid points or insights therein are by the grace of Allah, and any mistakes are my own.
المال و البنون زينة الحيوة الدنيا…
Allah explicitly states in Surah Al-Kahf, ayah 46, that “wealth and sons are the allurements of the life of this world.” The subject of inheritance is then an especially delicate one, standing as it does at the meeting point between these two. Not only does the love of humankind for wealth have the potential to cloud fair judgment and create discord amongst the family, but the distribution of wealth and the preservation of the family unit has far-reaching implications for the function of society. It is perhaps for this reason that “no other religious law [is] given such minute details” as the laws of Inheritance in Islam (Doi 441). The primary objective of these laws is to distribute wealth justly, in line with Islamic ethics, and thereby preserve the family unit and promote an Islamic society.
To clarify, the prevailing mode of inheritance in the Western world today, particularly in the United States, is testamentary succession. Individuals are free to determine how their property should be distributed upon their deaths. They may divide it equally between family members, disinherit certain children in favor of others, or leave it to someone else altogether. By contrast, the Islamic Laws of Inheritance “impose compulsory rules of succession… requiring that property should, on the death of its owner, be transmitted in a foreseeable way to those best entitled to it” (Khan 21). This is referred to as intestate succession. Although in Islam an individual is largely free to dispose of his assets as desired during his lifetime, he is restricted from doing so upon his death. Instead, his property devolves more or less algorithmically upon those nearest to him in relationship, according to the living heirs at the time of death. Thus the property of the deceased can be disposed of dispassionately and with justice. The Islamic system of inheritance has been admired by jurists “for its completeness as well as the success with which it has achieved the ambitious aim of… adjusting the competing claims of all the nearest relations” (qtd in Fyzee 314).
Because contemporary jurists consider the Islamic Law of Inheritance to be a reform, “a superstructure upon the ancient tribal law; [correcting] many of the social and economic inequalities then prevalent,” rather than a separate code, it is worth understanding how property was inherited in pre-Islamic Arabia (314). At the time, people were divided in patrilineal tribes. Agnatic heirs are the male heirs from male line, and because they could take up arms to protect the tribe, only they would inherit any wealth from the deceased. The closest adult agnatic heir would take the whole of the inheritance. In the case of equidistant agnatic heirs, such as multiple adult sons of the deceased, they would share equally in the inheritance. Women could not inherit as they themselves were considered property, even to the extent that sons would inherit and marry their father’s widows after his passing in the pre-Islamic period. Minors were similarly excluded, even sons, since they could not carry arms. Descendants were preferred to ascendants, so in the presence of an adult son of the deceased, parents received nothing. Effectively, resources would be placed in the hands of the nearest relatives who could physically defend the interests of the tribe. While this system of inheritance did an excellent job of preserving the tribe, it was certainly unjust in that it left certain members of society without resources and completely dependent on the goodwill of others.
The Islamic system of inheritance, on the other hand, divides the property of the deceased amongst several classes of heirs. The first class are generally referred to as Sharers, as they have specific fractional shares written for them in the Quran. The second class are the agnatic heirs, which are very similar to the tribal heirs from the pre-Islamic period, but include females. The third class are heirs from the female line, who only inherit in the absence of agnatic heirs.
The property of the deceased, after the payment of funeral expenses and debts, is first given to the Sharers in the fixed fractions due to them. The remainder passes to the nearest agnatic heir, or is divided between equidistant agnatic heirs. For example, a woman passes away leaving a husband, a father, and two sons. Her husband and father are Sharers, and take their respective portions of ¼ and 1/6. The remainder of the property, 7/12, is divided equally between her closest agnatic heirs, her sons. Each son takes 7/24. This instance clearly illustrates how Islamic laws do not disinherit the previous tribal heirs. Instead, slices are taken from the property and given to the Sharers before the remainder, often the bulk of the estate, is distributed to the agnatic heirs. In the absence of any agnatic heirs, or heirs from the female line, the property of the deceased escheats to Bayt-ul-Mal, which provides for the welfare of all Muslims. In modern times, when there is no Bayt-ul-Mal or it is considered to be corrupt, the residue of the estate is returned to the heirs in proportion to their shares.
The Sharers are twelve in number, and eight of the twelve are female. It is immediately apparent that instituting the concept of shares allowed a whole class of individuals to inherit property that had previously been completely excluded. The first way, therefore, that Islamic Inheritance Law is just is that it allows females (and minors) to inherit where they had historically been excluded from inheriting. Secondly, although some Sharers are excluded or reduced by the presence of other heirs, there are certain primary heirs whose shares can be reduced but who are never excluded. These are husbands, wives, mothers, fathers, daughters, and sons (sons always inherit as agnatic heirs). In other words, the nuclear family, to the extent that it exists, will always inherit some or all of the deceased’s property. This reflects very closely the Islamic principles of maintenance. Those individuals who had the greatest right over the deceased in life continue to have a right over his property after his death.
In fact, the distribution of property follows directly from Islamic ethics. In Islam, individuals are organized into families, and the rights and responsibilities of each family member are clearly delineated. A Muslim must fulfill the rights of his family not only in life, but also in the distribution of his property after death. Just as it would be unethical to prefer one child over another in life, or to spend one’s wealth on alternative pursuits and not provide maintenance for one’s family, it is the same in death. “If an unlimited power were given to a person to decide who should get what portion of the estate after his death, it would have certainly resulted in favoritism creating rivalries within the family, ultimately leading to a breakup of the family unit” (Khan 129). The Islamic Laws of Inheritance prevent discord and preserve the family unit by disallowing favoritism and ensuring that each family member of the deceased receives a share of the property solely in accordance with the nearness of the relationship. Heirs that are equally related to the deceased receive equal shares of the inheritance.
There is a single caveat to this principle. Whether in the case of Sharers or agnatic heirs, the share of the male is twice that of the equidistant female, with few exceptions. For example, the share of a husband in the absence of children is ½ of the estate of the deceased, but the wife in the same situation receives ¼. This is unequivocally because the responsibility of financial maintenance rests with the males in the family. In Islam, a man must provide for his wife, his children, and his parents if they are poor, with some jurists going much further. “According to the Hanafi school every relative within the prohibited degrees is entitled to maintenance if a child and poor, infirm, or blind; and if a female and she is poor” (Doi 317). No such obligation is laid upon females, beyond the general injunction to give in charity. In accordance, therefore, with the greater share of financial responsibility laid upon them, males are also given a greater share of the inheritance. When sons and daughters divide a property amongst themselves as agnatic heirs, the sons receive twice the share the daughters receive. The sons have a responsibility to provide for their wives and children, while the daughters are maintained by their own spouses. In the event that the maintenance and inheritance they receive is not sufficient, those daughters have an additional right to maintenance from their brothers. Thus, Islamic Inheritance Law is just because it distributes wealth not only in accordance with the nearness of the relationship to the deceased, but also with a mind to the responsibilities laid upon each individual.
Ultimately, the distribution of wealth in this manner establishes economic dependencies that promote living in family units. The most basic social institution in Islam, the family not only provides a grounding in Islamic values and beliefs, but also serves as a primary economic recourse for each individual. By placing the responsibility of maintenance for females and for poor relations on their financially secure family members, Islam tries to secure a basic level of welfare for every member of society. This is in contrast to a modern capitalist society, where the emphasis is on maximizing equality and liberty for each member of society. Men and women are expected to be equally self-sufficient, and so are treated the same under the law. Additionally, legal obligations to provide for family members extend mostly to minor children. Conversely, Abdur-Rahman Doi notes that “[s]ince a man in Islam is not merely an economic animal, each person’s equal right to life and to a decent standard of living has priority over so-called economic liberty” (31). In the ideal Islamic society, the emphasis is not on complete human liberty, but on organizing human beings in such a way that Islamic values are preserved. Thus, the compulsory distribution of wealth to the family through the Islamic Laws of Inheritance, while impinging somewhat on the economic freedom of the individual, reinforces the structure of an Islamic society, one that emphasizes human welfare.
The implications of this system of inheritance reach beyond the preservation of nuclear and extended families, however. The breakup and redistribution of the deceased’s property has the effect of equalizing and reducing economic disparities in society as a whole. “One of the objectives of Islam… is the achievement of just distribution of wealth. The law of inheritance furthers this objective by dividing the estate of the deceased into small fractions” (Khan 129). Systems that mandate or promote the preservation of property, at the expense of the family members of the deceased, have the opposite effect. The practice of primogeniture, historically prevalent in Western Europe, in which the eldest son inherits the whole or the majority of his father’s estate, effectively consolidates wealth in the hands of the few. This leads to the further economic stratification of society in every generation. Islamic inheritance, by contrast, is more just because it redistributes property in every generation, impeding the monopolization of wealth and thereby reducing economic disparity in society.
However, Islam does not completely disallow discretion in the matter of inheritance. A Muslim is allowed to bequeath up to one third of his estate in a testamentary fashion, though the majority of Islamic jurists agree that this one third cannot be used to unjustly increase the portion of existing heirs. This allows him latitude to address specific situations that may not be covered by the general scheme of inheritance. For example, a grandfather might make a bequest in favor of an orphan grandchild who would not otherwise inherit, since Islam does not allow for the principle of representation in inheritance (the grandson cannot represent his father and take his share). Many Muslim countries have instituted legal reforms around this particular issue. In Egypt, in the absence of a bequest by the grandfather, the courts provide for orphans by creating a mandatory bequest in their favor up to the greater of what their father would have received, or one third of their grandfather’s property (Pearl and Menski 474). Regardless of the validity of their legal reasoning, which is outside the scope of this discussion, it should be apparent that their purpose, and indeed the entire purpose of the Islamic system of Inheritance, is to fairly provide for the members of society through their own families.
The ultimate goal of Islamic law is to establish a just society, where every Muslim is provided with rights and with a basic standard of living. The Islamic intestate scheme of inheritance promotes this goal by establishing the family as the basic social and economic unit of society, and distributing an individual’s property on the basis of familial relationship only. This prevents discord within the family. Furthermore, the laws support the function of the family by placing wealth in the hands of those expected to provide. In this way, Islamic inheritance laws aim to ensure human welfare and preserve justice in society. Nevertheless, this method of distribution is clearly most fair in the context of an Islamic way of life. In a society where each adult individual is considered free of responsibility to others, and is expected to be economically self-sufficient and independent, this system would lead to an imbalance of wealth within families, and would not be considered just. If Islamic Inheritance laws are being followed but Islamic ethics are being ignored, then wealth is being distributed to those who are not using it to discharge the responsibilities laid upon them, and certain elements of society will necessarily suffer. The solution to this is not to dismantle Islamic ethics as obsolete, but rather to stay true to the spirit of these laws rather than just the form. Each Muslim must discharge with justice the rights of his family upon not only the inheritance he leaves behind, but also that which he receives.In this way the purpose of the Islamic Laws of Inheritance can be fulfilled, which will not only preserve Muslim families, but lead to a more equitable society.