The most striking difference between sunni and shia legal systems is the law of inheritance within their

foundational structural framework. The legal traditions differ in respect to the legal status of multiple
people but mainly in relation to the females of the family which has manifold implications in the
determination of shares. It is sometimes argued that the differences are so deeply rooted it is difficult to
bridge the gap between them. Carol Gilligan identified Muslim inheritance laws as ‘gender binary and
hierarchy as the DNA of patriarchy’.

The Prophet never brought radical change in reference to the law of inheritance (Nasir). In Pre islamic
Arabia it was argued, as men fought wars to protect land, they were entitled to it as opposed to women
who did not (Doi). Islamic inheritance law responded to conflicts by setting in place rules of compulsory
succession to protect the close relatives of the deceased and gave the propositus limited discretion
(Coulson). It favored the nuclear family unit, though it did not abolish the concept of an ‘agnate’ (the
male heirs of the propositus). Islamic law of inheritance consists of rules. 2/3 rd of the deceased’s estate
to be distributed amongst the specified quranic heirs and 1/3rd can be given to anyone he wants.

According to Coulson, the main reason for the difference between shia and sunni inheritance laws is the
shia jurist rejection of the pre-Islamic practice of retaining value. Another reason could be the
continuance of a sunni aristocratic tribal system whereas Shias do not have such a system. In a historical
context the political importance of succession after the Prophet’s death also plays a large role – the
question before the Ummah was who had priority – Abbas (a consanguine paternal uncle, or Ali (a full
paternal uncle)?

Islam included an important feature of a female’s right to inheritance though the rule of taasib in Surah
IV Verse 11 is intact; a man and woman who are at equidistance from the deceased in relations, the man
shall get double the share of a woman in the ratio 2:1 (Fattah, 2004). The rationalization given in
modern times is because the financial responsibilities of man are more than those of a woman’s and the
welfare of the household rests upon him (Shah, 2006).

Surah II Verse 180 introduced the Quranic heirs who are the compulsory heirs with fixed shares. A son
always inherits as a residuary and converts a daughter into a residuary heir with him but takes double
the daughter’s share as per taasib. Coulson states ‘rights of inheritance rest upon two principal grounds:
marriage and blood relationship with the descendent.

According to Sunni law, legal heirs are divided into three categories: the sharers, the residuaries and the
distant kindred. The agnate is to obtain the residue – the amount left once the property has been
distributed to the quranic heirs. This formula is considered ‘mathematically sound’, however, this rule
raises few questions which most notably is the effect it has in diminished shares for female heirs due to
the existence of male agnates (Ahmed Souaia 2008).

Shia law only recognizes two categories: the sharers and residuaries . The law is divided into classes of
legal heirs. There are three basic classes: class 1a and b, 2a and b and 3a and b which allow for the
categorization and distribution of the estate. The classification also provides an insight as to which legal
heir will be given preference over another as individuals from class 1a and b can exclude those from
class 2 and 3, etc.

It is noteworthy that within the same class there is no difference between a male and female heir other
than the preservation of the concept of taasib. The standard phrase for shias is ‘dust into the jaws of the
asaba’. The only agnatic heir recognized is the son of the propositus. Shares of female descendants are
not diminished, they are equally entitled as the paternal side of the family. This especially holds so for a
mother and daughter.

For sunni law, descandents of a sunni’s deceased daughter are excluded from inheritance as they are
considered distant kindred and are only entertained in the absence of the sharers and residuaries
whereas a son’s descendents are entitled since they are considered. Shia law places both the male and
female descendents in the same class.

Another difference is that in sunni place an importance on the agnate who is to get the inheritance, in a
situation where a deceased only has a daughter and his brother, as the sole living male heir, the
daughter shall only receive her Quranic share whereas the rest of the residue shall go to the brother.
Under Shia law, the daughter she falls in Class 1 and shall exclude the deceased’s brother who falls in
class two. She shall receive her Quranic share and under the principle of Radd. This situation illustrates
the prominence women are given in Shia law that offers them greater protection and financial security
as opposed to in sunni inheritance law.

Both laws state that the nearest degree will exclude those who are linked to the propositus by a more
remote relation. However, their implications are different. A great grandfather, as the nearest male link,
cannot be excluded by a grandmother who is closer in degree to the deceased in sunni law. Whereas in
shia law she can.

In the case of spouses (referred to heirs by affinity), it is noted that they do not fall within any of the
abovementioned categories in shia law. This is because they are entitled to their Quranic share and like
in sunni law spouses do not benefit under the principle of radd. A ‘wife’s portion is a collective one’
(Esposito). The difference is that shias recognize temporary marriages as valid though only permanently
spouses are entitled to the right of inheritance. In cases of a childless widow, in shia law she is not
entitled to land of immovable property though she shall receive her entitled Quranic share from the
movable assets. Sunnis do not make this differentiation and she is entitled to have her share from both.
Another similarity is that the heirs of a predeceased heir shall not inherit if other heirs of the deceased
are alive. Therefore, if there are two sons of the deceased and one has already passed but had a son
(grandson of the propositus), the son of the deceased shall inherit and not the grandson. Sunni and shia
school of thought further also agree on the principle of representation whereby in the situation referred
to, if the deceased does not have another son the grandson shall inherit. The difference lies in the
manner of distribution. In sunni law they will receive 1/3rd as if they are individually entitled to
inheritance. Whereas in shia law the grandson will be held to have ‘stepped into the shoes’ of his parent
and receive as the parent would have. Further in this situation no distinction is between male or female
in shia law whereas in sunni law the son of a daughter is considered a distant kindred.

The rule of Radd is also of importance. It occurs when there is surplus after the estate has been divided
to the Quranic heirs. The application of radd is infrequent in sunni law as there is an exhaustive list of
residuaries. In the absence of a close agnate, any male relative, irrespective of how remotely connected,
shall obtain the residue in sunni law. The above mentioned example of a daughter of the deceased and
his brother illustrates that in shia law the daughter would obtain the surplus by applying radd. This
illustrates that in shia law the role of the agnate is restricted to allow a wider application of radd.
Another difference between sunni and shia law is that shia law does not recognize the principle of aul
and have put forward rules to avoid its application by dividing the legal heirs of the deceased into those
whose share is susceptible to reduction and those whose share is not.

There are also some similarities between the laws briefly mentioned above. Both laws are derived from
the Quran, recognize Quranic heirs and their shares and taasib is maintained.

The above discussion illustrates that it is correct that shia law and sunni law do differ greatly when it
comes to the law of inheritance. Women have been economically empowered by Islam. Yet it is clear
that sunni inheritance law has the effect of leaving daughters of the deceased with only her Quranic
share. It must be noted that the purpose for tracing the agnate – to act as a ‘pseudo father’ in cases
where daughters are un-married – is hardly ever fulfilled. Shia law is simple, consolidates the property
within the closest heirs, and to some extent places women in a better position within a patriarchial
society. Some jurists argue that in the wake of a more globalized world where women have taken
prominent financial positions, there is a scope for reformulating concepts such as awl and radd because
the Islamic-methodology provides room for reinterpretation by way of qiyas, ijma and ijtihad without
violating Quranic injunctions