J P Dequen Book Review

BOOK REIEW

The Islamic Law of Inheritance by Hamid Khan, Oxford University Press, Oxford,
2007, ISBN: 9780195473360

Succession has always been considered one of the most ‘noble’ fields of law by
Islamic jurists, supported in their view by the famous hadith according to which
Muhammad enjoined Abu Hurairah (d. 681) to ‘learn about inheritance and teach it,
for it is half of knowledge (...) This is the first thing that will be taken away from my
nation’.123Unsurprisingly numerous scholarly works exist in Arabic, the subject has
however received little attention in Islamic legal literature in English, in great contrast
to other family law issues such as marriage, divorce or maintenance. In this regard,
Hamid Khan’s study of the Muslim law of inheritance is certainly the most notable
synthesis since Noel Coulson’s textbook on the matter. Both authors indeed share the
same goal, consisting in: offering the English speaking reader a general description of
both intestate and testate succession in Islamic law according to the four major Sunni
schools (Maliki, Hanafi, Shaft’i and Hanbali) as a well as from the main Shia one
(.Ja ’fari), which given the technicality of the subject and the variations between the
different madhab, is quite a feat.

A distinguished Pakistani lawyer and academic, Hamid Khan has been working on
this subject since his Master’s dissertation at the University of Illinois, which he
augmented to propose a first edition of this work, later revised for a second edition in
1999. The current publication is the paperback version of the latter. Although the
structure has changed somewhat since 1999, the work has not been substantively
amended. The book being intended for a large public comprising both students and
practitioners who might not be familiar with Islamic law, the author starts by
presenting the major sources, methodology and schools relating the latter (Chapter 1),
to then expose the pre-Islamic origins of Muslim succession and its general principles

1Nasiruddin al-Khattab (tr), Sunan Ibn Majah (Darussalam 2007) vol 4, 17 [n° 2719].

2 Noel Coulson, Succession in the Muslim family (Cambridge University Press 1971)

3 Hamid Khan, Islamic Law of Inheritance (Lahore Law Times Publications 1980)

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(Chapters 2 and 3) based on the concept of Asaba (at least as Sunni law is concerned)
regarding the importance of order, degree and blood ties. He follows by exposing the
different impediments to succession, as well as some borderline cases, such as the
question revolving around the child in the womb or that of hermaphrodites (Chapters
4 and 5). The bulk of the study is however to be found in Chapters 6 and 7 where the
classical inheritance schemes of Sunnis and Shias are respectively brought to light. In
this first part of the book, Hamid Khan gives a somewhat concise but yet
comprehensive presentation of the classical law of inheritance, which unlike other
fields of family law has been scarcely amended to this day. One can also value the
author’s effort in avoiding treating this subject through a series of examples, as it is
often the case, but by topics, helping the reader in uncovering the overall logic of the
Islamic inheritance legal framework. However, despite presenting the major
discrepancies between the four major Sunni schools one can sense that an emphasis is
put on Hanafi law, especially in regards to the niceties of certain problems, such as
that of distant kindred. Moreover, one can also regret that the author does not indicate
the primary sources in relation to the different rules he mentions, but rather heavily
relies on compendiums, for the most part elaborated at the helm of Anglo-
Muhammadan law in India.4

This emphasis on the Indian Sub-Continent - although perfectly understandable in

regards to the place of publication and the readership the book aims at - is even more
prevalent in the second part of the book. The author presents a critical analysis of
Islamic succession in relation to its application in the contemporary world (Chapter
8), before exposing the main area of reform in the 20th C. relating to the share of the
orphaned grandchild (Chapter 9), excluded by classical rules, but which has been
accommodated either through the doctrine of obligatory bequest (originating in Egypt
and spread across the Arab world) or through that of representation (as in Pakistan’s
Muslim Family Laws Ordinance of 1961). Finally Hamid Khan lists a series of minor
reforms (one of them - the Al-Himariyya rule revolving around the competition
between germane and uterine relatives - being in fact as old as the Islamic inheritance
scheme itself), to conclude by presenting the rules concerning testamentary

4 Anglo-Muhammadan sources make up for half of the (rather short) bibliography.

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succession. Here, the author embarks as the subtitle of the study suggests in ‘a
comparative study of recent reforms in Muslim countries’. As such, he does not
provide the reader with an internal criticism of the interpretation of the sources5 but
remains in the sphere of 20th C. legislative and judicial reforms. Although Hamid
Khan does not move away from the thorny issues linked to Islamic succession such as
the fragmentation of land, or the unequal treatment of women, he nevertheless
remains a staunch proponent of the scheme, mainly based on social arguments that
can perhaps feel inadequate in the 21st C, as for instance defending the advantage of
the agnatic line on the basis that in ‘Muslim countries of Asia and Africa, a man is
still the sole bread earner, and women are primary housewives’.67 The author’s
analysis of reforms is also deeply rooted in Pakistani legislation and case law which
limits its comparative value. Although as aforementioned, this area of law has seen
little change throughout the past centuries, one can nevertheless regret that the author
fails to mention recent developments whether they are in the new Moroccan family
n
law code of 2004, or through the Allah Rakha case where the Federal Shariat Court
has deemed the current treatment of the orphaned grandchild in Pakistani legislation
to be repugnant to Islam.

Notwithstanding these shortcomings, Hamid Khan’s work remains a useful and

excellent introduction to the Islamic law of succession for the English speaking
student and practitioner, one that is most welcome given the lack of interest this
particular area of law faces in Western academia pertaining to Islamic legal studies.

Jean-Philippe DEQUEN
PhD Candidate, School of Oriental and African Studies, University of London
jp_dequen @soas.ac.uk

5 One could point to David Powers’ philological analysis of Qur’anic succession verses and hadith for
instance: David Powers, Studies in Qur ’an and Hadith: the formation o f the Islamic law o f inheritance
(University of California Press 1986).

6p. 158

7 Allah Rakha v. Federation of Pakistan, PLD 2000 FSC 1 - an appeal is currently pending in front of
the Supreme Court of Pakistan.

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