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

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 Muslim 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 issues of family law, particularly that concerns 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 in regard to 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 the text as given without any need for interpretation, since the text is already clear as mentioning exact numbers and certain partition of the wealth. The other extreme is those who simply reject the law 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 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 the “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 article 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 by reinterpreting the doctrine along with consideration of some sociological and historical analysis.

The question is how those Muslims negotiate this doctrine? Why this category of Muslims thinks 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.

Is 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 did 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 needs to be exposed so we can examine fairly how the unbalanced treatment on women was also improved by the new set of rules introduced by Islam in its era. Indeed, before the Qur’anic injunction on inheritance, the Arabs tradition, in line with the early civilizations in the world, gave the entitlement on inheritance of the deceased properties exclusively to the male relatives only, while the Jahiliyah tradition in Arab during that time considered women merely as an object that can be inherited and can be easily abused.

Islam improved the status of a woman with regards to inheritance by giving her the right to inherit properties from her family. In light of this situation, we could see clearly how Islam through the divine revelation of the Prophet Muhammad (PBUH) managed to overcome the problem of unfair treatment of the early societies. One thing we realize that Islam has produced the system that considers women as legal heirs long before some modern societies can create the unbiased law of inheritance that will benefit both men and women alike.

Therefore before delving into the main controversial discussion of whether Islam can be reconciled with the challenges of modernity related to the question of inheritance law, one should first realize that Islam has revolutionized women’s inheritance rights by clearly stating in the Qur’an that women have the right to inherit for themselves. Moreover, Islam has changed the status of women in an unprecedented fashion. The Qur’an states: “Men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind.” (al-Qur’an 4:7). Thus, whether women can inherit at all is not the controversy, rather, the dispute centers around the “share” that is to be inherited.

Women have the half share of men?

Responding to the social setting of Islamic inheritance mentioned above, the most frequent question which appear in modern society is how to understand the Qur’anic injunctions that give women only half as much as the share of men. How to understand this doctrine in the light of modern context?

Some Muslim scholars who belong to this third category are attempting to reinterpret many other Islamic doctrines in the midst of modernity challenges. Some of them are Fatimah Mernissi, with her book “Believing women in Islam”, Gamal al-Banna with his “Renewing Fiqh”, Said el-Ashmawi with his “Sharia Reconstruction” and many others. For the particular issue of inheritance dealing with the questions of gender justice, we may find Dr. Muhammad Imarah who had attempted to answer through his book “Tahrir al-Mar’ah al-Islamy”. Many Indonesian Muslim scholars who have concern on Islam and gender issues are Dr. Nasaruddin Umar (Argumen kesetaraan gender perspektif al-Qur’an), Zaitunah Subhan (Tafsir Kebencian), Masdar F. Mas’udi (Islam dan Hak Repoduksi Perempuan), Abdul Moqsith Ghazali and others.

Dr. Atho’ Mudzhar is another example. He had tried to answer this problem in his book “Islam and Islamic law in Indonesia” by exposing three arguments which I later elaborate:

first, it was evident that the rule of the share of men being twice as much as that of women was not applied in all situations, father (man) and mother (woman) may get the equal shares in certain situations, so do brothers and sisters.

Second, if one views the rules of inheritance from the incremental point of view, one finds that Islam has strategy to set rules incrementally (gradually: munajjaman /tadrijiyyan) such as I the case of the prohibition of drinking khamar (wine). If the incremental philosophy is applied to the case of inheritance rules, one may interpret that the half share of women compared to that of men was incremental in spirit and nature. Given the time period used, it was revolutionary change. Now, with the elapse of time, after fifteenth centuries passed, the incremental philosophy would expect that the change should not have stopped at the rule that the share of women is equality of shares between men and women.

Third, not all rules of Islamic inheritance come from Quranic Injunction; some are apparently derived from pre Islamic tradition. The rule of “Ashabah” is a case in point. Apparently nowhere in the Qur’an is found averse that stipulates injunction on Ashabah (the heirs who take the residue), although all know that this rule is very much established in the Islamic law of inheritance. This may indicate that Islam did not introduce a complete-new set of rules, but Islam just modified the existing system of inheritance. Moreover, it may also indicate the readiness of Islam to accommodate the living tradition of various communities and cultures in the world as long as they are not in contradiction to the basic principles of Islam of inheritance, namely justice.     

All in all, practicing the doctrine that the share of women is half of men should be reviewed, because the reason why the share of woman is a half of the men is also about dowry and responsibility. Many Muslim scholars such us Muhammad Imarah said that the inequality of inheritance between men and women is because of the inequality of responsibility; that man is the only one who is responsible financially for the family. On the contrary, women are free from that responsibility. In addition, women could obtain the dowry for free.

However in the context of Indonesia particularly, we should realize the fact that the common dowry (mahr mitsly) is not too precious. Indonesian man could marry his girl with only providing a dowry consisting of a set of praying tools (seperangkat alat sholat) and the mushaf (book of Qur’an). Indonesian woman on the other hand could not consider that kind of dowry as a wealth. Another argument is that the financial responsibility in modern society—in general—is not only on the shoulders of men, since the modern philosophy of family is cooperation and sharing of everything. For such particular reasons I agree with Mudzhar to take the spirit of justice from the doctrine of Islamic inheritance, instead of taking the literal texts which concern only number and certain partition of wealth.