You are on page 1of 18

The Islamic Inheritance System: A Socio-Historical Approach Author(s): David S.

Powers Reviewed work(s): Source: Arab Law Quarterly, Vol. 8, No. 1 (1993), pp. 13-29 Published by: BRILL Stable URL: http://www.jstor.org/stable/3381490 . Accessed: 30/03/2012 07:16
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

BRILL is collaborating with JSTOR to digitize, preserve and extend access to Arab Law Quarterly.

http://www.jstor.org

THE ISLAMIC INHERITANCE SYSTEM: A SOCIO-HISTORICAL APPROACH


David 5. Pozvers$

Muslimjurisprudence portrays Islamiclaw as a manifestation the revealed of wordof God: the shan'a is a divinelyordained system that controlsbut is not controlledby Muslim society;law does not evolve as a historicalphenomenon closely linkedwith the evolutionof society,and legalhistory,in the Westernsense, does not exist.This view has been challengedin the twentiethcentury by Westernscholarswho have souffit to demonstrate that the classicaltheoryof Islaniiclaw was the productof a comples historicalprocessspanmng periodof threecenturiesand, filrther,that the a early growthof Islamiclaw was closely linkedto contemporary social, poliiicaland econoc developments.l thefieldof inhentance, scholar donemoreto promote In no has a socibhistoricalunderstanding the law than Noel J. Coulson.AlthoughCoulson of never culated a unified,comprehensive explanation the historicalevolutionof of Islamicinheritance fFom law pre-Islarnic moderniimes, one does find the elements to of suchan explanation scattered throughout numerous his tings.2 Coulson's explanaiion of the historicalevolutionof Islamic inheritancelaw may be summansedas follows: The Qur'aniclegislationandthe Islamiclaw of inheritance(in Arabic,the 'ilmalfara'id or "scienceof the shares") best viewedagainstthe background the tribal are of customarylaw of pre-Islamic Arabia,that is, the customaryinheritance pracocesof the nomadicArabslivingin the Hijazpriorto the rise of Islam.This tribalsocietywas patrilineal its structure patriarchal its ethos;individual in and in tzbes wereforrned of adult males who tracedtheir descentSom a commonancestorthroughexclusively male links.The tribewas boundby the bodyof untten rulesthat had evolvedas a manifestation its spiritand character. of These rules servedto consolidatethe tribe's militarystrengthand to preserveits patrimony limiiing inheritance by rits to the
FDrDavidS. Powersis Associate Professor IslamicHistoryat CornellUxiiversity is a specialist of and in the historyof Islc law.His firstbook,Studies Qut'anandHadith:TheFormation theIslamic in of Lawof Inhentance, was published the University CalifoniiaPrcss in 1986. Ariicleson variousaspectsof by of Islamiclegalhistoryhaveappeared StudiaIslarrnca, in Arabica,Xournal theAmerzcan of Oriental Society, Xurnal of NearEastern Studies,andComparative Studiesitt SocietyandHistory. lMis aracleis basedon a chapter the Graham Trotman in & publicaiion Islamzc Family Law,published thc ArabandIslamic in Laws Sencs (Senes GcIlerl EditorDr oMark Hoyle).The bookis editedby ChibliMallatandJaneConnors and waspublished 1990withISBN 1-85333-301-8; contentsaretakznfFom in its convened the by CentrcforIslnmicandMiddleEastemLaw,the Ccntreof NcarandMiddlcEasternStudies,andthe Law Dcpartent of the Schoolof Oricntal Studies,in May 1989.
proceeflings

1 The pioneerin this regardwas JosephSchacht.See his The Origins Mahamtnadan of )trvdence, Oxford,1950. 2 Noel J. Coulson,A Histowy IslamicLaw, Edinburgh, of 1964; Conflicts and Tenszons Islamic in Xurisprudence, Chicago,1969;Successonin the Muslim Family,Cambridge, 1971. 13

14

ARAB LAW QUARTERLY

maleagnate relatives ('asaba) the deceased, of aITanged a hierarchical with in order, sonsandthewdescendants firstin order priority.3 being of During century the prior theriseof Islam, social to the structure theHijazwas of undergoing radical a transfonnaiion, especially MeccaandMedina, in wherethe nuclear fly wasreplacing tribe thebasic of society. response these the as umt In to changes, Qur'an the introduced inhentance thatemphuzed iie siing novel rules the between husband his wifeandbetween a and parerlts children; rulesalso and these
had the pariicular of raisingthe legalstatusof womenwithinthe nuclear goal familye Thus, the Qur'anic iMeritance legislaiion cameto reform mbal customary of the law pre-Islamic Arabia4 Coulsonswords,the Qur'an In "modified exisiingcustomary the lawby adding thereto supernumerary a nuItlber relaiives wouldnorrnally as heixx of who have had no rightsof succession underthe customary law".5 These reforms servedto strengthen statusof members the nuclearfly. the of The Qur'anic reforms wereshortlived. Following Muhanad's death, Muslim jurists filsedtogether pre-Islamic the tribalcustomary andthe Qur'ariic law irieritance.The

latter poses compulsory forthedivision a minimum twbthirds every rules of of of estate; bequests notnormally may exceed one-third theestate maynotbemade of and in favour anyperson stands inherit share. of who to a SincethebuLk theestate of was oSen preserved the closestsuving maleapate, Coulson for concluded the at tribalcomponent withinthe Islc law of inheritance prevailed had over the Qur'anic, nuclear family component. hisview,theIslamic of inheritance In law gives superior rights themale to apate relatives therefore and "caters a tribal for system of society".6hus bytheendof thefirstcentury I A.H.,theagnauc, extended fly had reasserted dominance the nuclear its over family. was the extended It faniilythat would characterise social the structure Muslim of society thenextthousand for years.7 According theclassical oncetheIslamic of inheritance been to vqew, law had created, there could noquesiion any be of filrierreforms modifications. lawofinhatance or The reigned supreme over-a for niillenium, theninthto thenineteenth fFom century A.D.; thedevoluiion property pre-modern of in Muslim socieiies largely was deterniined by

4 Coulson,Hist07y, 16, 23;Sucon, p. 29. pp. s Co llson, Succenion, 33. p.


6 Coulson,Hzstoty, 220; p. Conflicts, p.97.

3 Coulson,Histoty,pp. 9-10, 15-16; co1zfl=s lo;Sucon, p.

p. 29.

7 COI11SOI1X Hi5tO?y, p. 220; CO?z, . 37,97;S2cc, pp. 135-136.Codwn achowledgedat m manyareasof theMllslirn wodd(c. Rabylie A}gena, Sumatra, Wcstcrn Nigena,India,andJava), Muslims do not adhere theIslamic of inhaitanct He newedthisphenomonasthe tnumph localQwlStomaty to law of lawovcrthc shari'a explained snomaly dra and the by a disdnton benvecsAmbandnon-Arab Muslim eacs. Islamic inhence law,hc explained, lawly in accord ie innate was with temper Arab of soaety". Fornon-Arab Muslims, however, reccpizon Islamicinhentancc "posed the of law senousproblems, its for basicCOQCeptS wcre alicnto thetradiiional structure deir socieiics." Coulson, of Sce Hso1y, pp. 135-137.

THE ISLAMIC INHERITANCE SYSTEM

15

thesecomples unwieldy and rules.8 Legalhistory ceased enst, onlyto resume had to in the tweniieth century whenurlprecedented andeconoc changes social assaulted thecontemporary Muslim world, resuliing thedisintegraiion extended in ofthe fly andits replacement the moreimmediate by familycircleof parents children;9 and withinthatcircle woman the playsanincreasingly responsible Egypt, role. Iran, Iraq, Jordan, Morocco, Pakistan, Sudan,Syria,andTunisia the haveresponded these to newandunprecedented circumstances enaciing by personal status andcodes laws that include major reforrns thearea inheritance. social in of The purpose ofthesereforms is to stengthenthe inheritance rightsof those relaiives who formthe nuclearas opposed thetribal to, family 10 From preceding the summary, would it appear Coulson that adhered thetradition to of comparaiive thatviewstheevolution legalsystems a refleciion man's law of as of socialdevelopment primitive modern from to societies: the former, individual in the waseniirely subordinatethevoup;in thelatter, becomes focus legalrights to he the of andenjoys freedom enter contracts others.l1 the to into with Coulsones understanding of Islamic inheritance restsuponthe keyassumpiion inheritance area law that rules faithfill reflection familystructure thatchanges family of and in structure manifest themselves changes inheritance in in rules.l2 Having made assumpiion, this Coulson mustpostulate radical a change thestructure thefly every in of timethathe perceivesa change inheritance in rulesThisproduces following the curious results: the extended farnily wayto thenuclear gave family during lifetime theProphet; the of the nuclearfamilywas replaced the entended by &milywithina centuryaRerthe Prophet's death) theerendedfly gave tothenuclear and way farnily thetwentieth in centuryA.D. I find these radicalshifts in the structure the Muslimfamily of unconuncing difficult accept. whatfollows, shallattempt provide and to In I to an alternaiive model the socibhistoncal for development Islamic of inheritance law. BACKGROUND TO THE QUR'ANIC LEGISLATION The Distinction Between Nom?|(ls and SedentaryArabs Coulson portrays Islamic of inheritance a unilinear the law as extension the sb of
8 Thus the taskof the scholarinterested the devoluuonof propery in pre-modern in Muslimsocietiesis seemirlgly lirnited developing betterunderstanding to a ofthe specific detailsandmanyintncacies ofthe law of inhentance. Westcrn histonans legal suchas Schacht C:oubson therefore and have focused almost exclusively on legal rules,to the encclusion socialprocesses. of Anthropolopsts, the otherhand,tend to emphasise on social processcs. Sce, for example,Bomas Gerholm,'sAspects IIlhentance Mamage Paymentin of and North Ycmen", Ann E. Mayer(ed.), Property, in Social Structure, Lawin theModern and Middle Eost, Albany,New York, 1985,pp. 129-151,cspecially 135;Martha p. Mundy, "Women's Inheritance Landin of HighlandYemcn", ArabianStadies, 5, 1979, pp. 161-188; "The Family,Inhentanceand Islam:A Reexaminaaon ofthe SoaoloB of FarsJd Lav@', Aza Amleh(ed.), in Isl Law:SociolandHistorical Contexts, Ixndon, 1988,pp. 1-123. 9 Coulson,Conflicts, p.114. 10 pbid., pp.37,97-98; S2wccession,135-136. pp. 11 For an auemptto exposethe historically condiiioned assumpiions uponwhichCoulson's view is based, see Mundy,"Reswnmination", 3-23. pp. 12 Coulson,Conflicts, Saccession, 3. p.8; p.

16

ARAB LAW QUARTERLY

called mbalcustomary of pr>Islamic law ArabiaHis reconstruciion thetribal of customary law,however, highlyproblematic. is The sourcesthat he uses to reconstruct this law are relaiively lateand,fithermore,inherently biased avinst prbIslamic praciices.l3 Adopmgan uncritical approach thesesources, to Coulson makes crucial a assumption, namely, thatthe asabaof Islamic area carry-over law fromthe tribalcustomary of law pre-Islamic Arabia,and that the orderof prioritiesaccording to which the 'asaba inheritin Islamiclaw is identicalto de orderof prioriiies that prevailed priorto the revelation the Qur'an. this assumption correct, of If is thenthe devoluiion property of in pre-islc Arabiawouldhave been governed by the pciple of directdescent fFomfatherto son. Coulsonhasignored important evidence pointsin a that direction. 1950 In RobertBrunschvigpublishedan ariicle in which he different suggestedthat the order of pnonties according whichthe 'asaba pr>Islamic to of Arabia inhented not identical was tothatof the Islamic'asaba. Rader, the devolution property of amongnomads prein IslamicArabiawas likely to have been governedby the principleof seniority,as esemplifiedin the mm, "patronage belongs to the eldest" (al<la) lil-kub). Brunschvig speculated a groupof brothers pre-Islamic that in Arabia formed kindof a Saternal corporaiion (fratriarcat). As individualmembersof the corporation died, their rightspassedhorizontally theirsurviving to brothers. Overtime,property rights became concentrated fewerandfewerhands,until,finally,the in longest-lived brother acquired exclusive control over everything When he died, the next generaiion assumedcontrol, and the process repeated itself.l4 Although the details of BrunschvigXs haverecentlybeen criiicizedby two theory scholars,ls generaloutthe lines his argument important of find confirmation external in historical, linguistic, and
ethnographical considerations.l6

Wasthe devolution property pre-Islamic of in Arabiagoverned the principle by of direct descentfromfatherto son or by the pciple of seniority? dichotomy The may be falseone. In my view,uncritical a reliance uponIslamicsourceshas resulted an in oversimplified of the legal situationin the Hijaz on view the eve of Islam.These sources portray everything Islamic termsof tnbal,nomadic pre in society. is reasonable It to assume,however, that socialorgnnization pre-Islamic in Arabia includednot only nomadic also sedentary but elements.Meccaand Medinawere towns,the formera commercial settlement the latteran agncultural and oasis.Coulsonacknowledged this fact, viewedde socialcustomsof the sedentary but Arabsas an extension thoseof of
13 the histonographical On bacWund to Colllson's assumption, William see Robertson Smith,Kinship and Maoriage EsrlyArabia, in Cambridge, 1885; London, 1903, 65 66;W.MatiS "Desparcnts pp. et successibles droitmusulman", repnnted atlies en thesis,Rennes,1898,p. 35; G. H. Bousqllet F. and Pcliier, LRS Sssc tves zmtigees: etudecomparee regimesuccessoral droit du en germanique en droit et nlman,Paris, 1935,pp. 108-109. nowalsoM Habibur 99, See I2shmnn, "TheRoleof Pm-Islamic Customs in IslamicLawof Succession", the Islanzcand Comparative Law 8:1, 14 Robert Brunschvig, systemepeu connude succession Quarterly, 1988,pp. 48-64. "Un agnatique dansle droitmusulman", Resue Hzstque Dmit Franfais et Etranger, 1950,pp. de 27, 23-34; repnnted id., Ktudes in dXIslamologie, Paris, 1976, 2, pp. 53-64. vol. 15 hfundy, estnination"pp.39, Patncia See "Re Crone, Roman, incisl andIslamic L: TheOrigins of Islarmc the P=ronate,Cambndgc, 1987,pp. 81-82. 16 details,see my Studxes QwrJan For in and Hadith:The Forrnation the Islarmc of LazD Inhentance, of Berkelcy, pp. 91-92. 1986,

THE ISLAMIC INHERITANCE SYSTEM

17

the nomadicArabs.It is morelikely,however,that thereweretWOdistinctsystemsof social organization law,,one for the nomadicArabsand the other for sedentary and ones. Amongthe former, property may have been collectivelyownedor controlled by the eldersof the tribe,andits devolution governed the principle seniority; by of among the latter,property may havebeenownedby individuals, who had greater freedomtO determine uliimatedevolution; its filrther, womenlivingin townsandsettlements presumably had the right to own and inherit property.In other words, Coulson and Bmnschvigmay havebeendescribing differentsystems bothof which exasted two in pre-Islamic Arabia.l7 It is difficultto determine exactlywhat the inheritancepracticesof the sedentary Arabs of the Hijaz were for, as stated, the sources are unreliableand tend to emphasisenomadiclaw. We may perhapscircumYent bias and reticenceof the the sourcesby viewingthe issue againstthe background contemporary of Near Eastern provinciallaw, that is) Roman,Syr>Roman,EgypiianX Jewish,and Sassanianlegal systems.l8 ofthese legalsystemsdrewa disiinciionbetweentestatesuccessionand All intestacy. Withregard testatesuccession, individual ieedom-within certain to the had limits-to determinewho his heirs would be and what they would inherit. As for intestacy,Egyptian, Syr>Roman,andJewishlaw lirriited heritance in uponintestacy to blood relaiives of the deceased arrangedin a series of hierarchically related classes;l9the first threeclasses)in orderof priority,were children,parents) and siS lings.20 Further,all of these systemsawardedsharesof the estate to both males and females: Egypiianlaw awardeda double portion to the eldest son while treating daughters all younger and sonson a basisof equality; according toJewishlaw,the first son receiveda doubleshare,whiledaughters inheritedonly in the absenceof a son;in Sassanianlaw, a son's share was twice as large as a daughter's, and all sons were treatedequally.2l NearEastern Is provincial comparable any systemof law that law to prevailedln pre-Islamic Arabia; THE QUR'ANIC LEGISLATION: PROTO-ISLAMIC LAW

At this pointI mustadvance speculaiion mayfacilitateourunderstanding the a that of formaiionof the Islamiclaw of inhentance.ElswehereI have arguedthat thereis a disconiinuityin e historicalrecordand that the processof forrnaiiontook placein a mannerradically different fFomthat represented classicalIslc in sources.Specifically, I maintainthatthe tradiiional interpretaiion the Qur'anic of inhentanceverses
17 See Mundy, "RessaxIiination", 30. A siniilarsituaton prevailed pre-Islamic p. in Iran,wherethe small, individual familycoexisted with de extended patriarchal family.See A. Perikhanian, "Irarlian Sety and Law",in EhsanYarshater (ed.),Ne Cambridge Histo?y Iran,Cambndge, of 1983,vol. 3, pt. 2 pp. 627-680, esp. pp. 641ff. 18 The followng discussion basedon Powers, is Studies p. 106 n. 46. 19 SaSSt2iat1 law awarded de widowa sharcof her husband's estate on the condiiionthat she had been assimilated the busband's into agnatic groupat the timeof the mamage.Perilianian,"Iranian Societyand Law",p. 648. 20 See also Mundy,"Ressanlinaiion"pp. 27-29. 21 Perildlanian, "Iranian Societyand Law",p. 668.

18

ARAB LAW QUARTERLY

andcertainprophetic ahadithis not identical the originally to intended significance of that legislation. meansof a literary-histoncal By analysisof key Qur'anic versesand prophetic reports, haveattempted reconstruct systemof I to the inheritance which in the Qur'anic versesandprophetic ahadithwereoriginally embedded, systemthat I a referto as the "proto-Islaniic of inhentance". law I regardthe proto-Islamic of law inhexitance a hithertounrecognized as stagein the formation the Islamiclaw of of inheritance. us see how the postulation its existence Let of providesa different perspeciiveon legaldevelopments duringthe firstcenturyA.H.22 The essential features the prot>Islarnic of inheritance be of law may summarised as follows:proto-Islamic made a clear disiinction law betweentestate successionand intestacy. meansof a last will andtestament, person By a deathcould designate testamentary and disposeof his or her contemplating a heir property he or she saw fit. as Thetestator mightdesignate a daughter, othercloserelative the testamentary or as heir, was alsoSee to desipate an affine,suchas a but wife,or daughter-in-law; the in latter case,relaiiveswho wouldhaveinherited the absence in of a will are awarded a Sactional shareof the estate,not to exceedone-third, as compensation the disinfor heritance 4:12b).23 addiiionto designating heir, (Q. In an the testatorght also bequeath to one-thirdof the estate (alasiyya up fi'th-thulthf4to parentsand/or other close relatives(Q. 2:180),as well as makeprovision for the maintenance his of wife 2:240).Tobe valid,a lastwill andtestament (Q. hadto be drawn or dictated up in the presonce oftwo stworiy mtns (Q. 5:105-106). Tampenng the provisions with of last will and testamentwas discouraged a (Q. 2:181),and over provisions a will wereto be referred a thirdpartyfor disagreements the of to settlement(Q. 2:182). In prot>Islamic the Qur'anic law, rulesforthe divisionof property tookeffectonly in absenceof a validlast will andtestament the andweretherefore rulesof intestate succession, properlyspeaking.The generalprinciplesof the proto-Islamic of law intestacy be summansed follows: rit to inherit may as the waslimited bloMrelatives to of deceased 4:7). Husbandsand wives did the (Q. not, undernormalcircumstances, inherit one another. excepiionto this rulewas fFom An madein the caseof a wifewho had been awarded dowryby her husbandat not a the time the marriage conwas cluded; award madereciprocal 4:12a). this was (Q. The Qur'an mentions threeclasses of whoinhented heirs according thefollog order prioriiies: lineal to of (1) descendants; (2) linealascendants; collaterals. inhentanceverses (3) The illustrate applicaiion the
s!on

22 Powers, Szadies, 21-109. pp. 23 pp. 43 44. I arguethatthe original lbid., intention of a shareof the to siblings hadbeendisinherited tbEeirQ. 4:12bwasto award smallfFactional cstatc who by brother favour persons werenot related in of who to thc by tics of blood;that is, the verse imposed lattcr restrictions upon the capacityto bequcatSs thc underlyiDg rationale beingto protect rightsof members the ofthe testator's familysis4<ns persons outsidc of fimily.Viewed thismanner 4:12bdisplays the in Q. a distinct rblance to a reform thc Roman of law of inheritance unstituted Justinian thana century by less priorto the revelation thc Qur'an, provides of and additional forthecontention theArabs pre support t}lat of conquest Arabia placed rcstriciions thccapacity on to bequeath. William Hammond, Introduction See G. An to Santur's Institutes ]astinian,Chicago, of 1876, pp. 285-286. 24 an analysisof the authentiatyand For significance the dictum,see my "The Will of Sa'd b. Abi of Waqqas: A Reassessmmt", StudiaIslamica, 1983,pp. 3F53; "OnBequests 58, in EarlyIslam",Xournal of Near Eastern Studies,48, 1989.Fora diXerent viewof the originsof the one-third rcstziciion, Crone, sec Roman, Provinci41 Islamic and Law,pp. 91-96.

THE ISLAMIC INHERITANCE SYSTEM

19

of these principles specificcases.Finally the prot>Islc to law of sntestacy drewa disiinciionbetweenprimary hexrs, who inheritedbetween50 and 100 per cent of the estate, and secondary heirs,who inhented a masimumof one-third.25 The prot>Islamiclaw of inheritance hardlybe newed as an erension of the can customaryinheritance pracocesof the nomadicArabsof pre-Islc Arabia,among whomproperty colletvely ownedanddevolved accorce with the pnncipleof was in seniority. Can it be seen as a maliifestation the inhffltance of praciices the seclentary of Arabs pr>Islc Arabia; doesit perhaps of And represent spKifically a Arabian version of the contemporary NearEasternprovincial law?In orderto answerthese quesiions, we needto detene whatdiaposiic features the two systemsshouldbe compared. of Cronehas idendfiedtwo key indicesof possibleNear Easternprovincial influenceon presonquestArabian (1) extensivefsrniliarity law: with testamentary disposiiions and (2) restrictions de capacityto bequea4th.26 Easternpronncial law makesa on Near cleardisiinciionbetweentestatesuccession intestacyandplaceslimitations the and on capacityto bequeath.27 same holds true for prot>Islaniiclaw. SeveralQur'ariic lie verses(2: 180-182,2:240,4:11-12,and 5: 105-06) attestto the Arabs' faliarity with testamentary disposiiions pnor to the conquestof the Near East.28 One subverse,Q 4:12b placeslits on a testator's fFeedom disinherit closebloodrelative,andthe to a propheiicdictumalaszyya fith-thulth limits bequeststo one-thirdof an estate;the Qur'anicsubverseand the propheiichadith attest to the existenceof restriciionson the right to bequeathin presonquest Arabia. As for the law of intestacy,both prot>Islamicand Near Easternprovinciallaw arrange intestateheirsinto a seriesof hierarchically the relatedclassesand awardthe right to inherit to both males and females.29 There are differencestoo,30 but the similariiiesoutweighthem. Thus, the resemblances betweenprot>Islc and Near Easternprovincial in the areasof testatesuccession intestacyarestriking. law and The prot>Islaniiclawof inheritance shouldX my view,be regarded an Arabian in as variety of Near Easternprovinciallaw, exisiing alongsideand in compeiitionwith Arabian triballaw.3lThe tensionbetweentribaland prot>Islc law maIiifested itself most directly therulesforthedevoluiion property. irl of Accoreling theformer, devoluiion to the of property governed the pciple of seniority, was by whilein thelatter, wasgoverned it by the pnncipleof directdescentiom fatherto son. The new systernof inheritance seems to haveangered proponents nomadiccustomary whoseresistance the of law, to the new pnnciplemay be reflectedin the coIlcluding of Q. 4:12b)"Yourfathers line and your sons, you knownot which of them is closer to you in usefillness'.32

25 Powers,Stsdw, p. 87-1w. 26 Crone,Patronate, 93;q. Mame,AncientLaw, London,1917,chapter6. p. Z7Crone,Patronate, 93. p. 28 0n Q 2:180-182,and 5:105-106see above.Q 4:11-12meniionbequests fouriimes. 29 Compare Mundy,"Resxamin?vtion", 29-30. pp. 3a Powers,Stxdies,p. 106 n. 46. 31 Compare Mundy,"ResssminaXon',p. 99 n. 117. 32 Powers,Stzwdses, pp.102-106.

20

ARAB LAW QUARTERLY

THE ISLAMIC LAW OF INHERITANCE The proto-Islc lawof inheritance shortlived, was giving wayalmostimmediately tO the Islamiclaw of inheritance. This transformation resulted fFom changein not any the structureof the ArabfaIIiily, ratherfrom a but seriesof historicalfactorsthat emerged dunngFe course ie firstcentry A.H.Firstiere wasthe of problem succes of sion to MuhammadThe existencein the Qur'anof a mechanism desipaiing an for heirmayhavebeena source embarrassment the of to earlyleaders ofthe Muslimcommunity. One of these leaders,or his representaiive eliminated mechariism this by imposinga secondary reading(qira'a)upon the consonantal of Q4:12band text by redefining wordal-kalala the thatoccursin that subverse. eininaiion of the sole The Qur'anic reference thepossibility designating heir,combined to of an witha concomitant shiSc emphasis of fromheirsto shares, to the fision of several led subverses a single into unitthat cameto be knownas "theinheritance verses"(Q. 4:11,4:12and4:176).In thismanner,the proto-Islamic rulesof intestacywere into rules the division property, shiS thatmayhave transformed compulsory for of a promoted socialcohesion dg thetumultuous periodof the Arabconquests,when largenumbers of Muslimswere dying distantbattlefields vastwealthwas being on and filnnelled a smallnumber into ofhands.Further, identificaiion the Vivinityas the of the sourceof thesecompulsory rules would have servedto reinforcethe emerpng concepiion of the shariiaas the manifestaiion God'splan for mankind.33 of Inevitably, thereweresome looseendsthat had to be iied up. The reinterpretaiion ofQ. 4:12b resultedin an awkwardsyntaciical structureiat proveddifficulttO explaln away;it alsocreated somemcky lexicographical problems.34 Futher, Muslim legists foundit difficult accountforthe apparent to discrepancy betweenthe principle at "a maleis entitledto the shareoftwo females" statedin Q. 4:11and4:176,and the that the mother fatherm Q. 4:11andthe fact and brother sisterin Q. 4:12are and awarded sharesof the estate.35 equal In addiiion) whenworking the detailsof the out Islaic law of inhentance,the lepsts encountered nllmberof problems a that compelled them to deviateSom the explicitworkingof the Qur'an.36 These phenomena are easily explainedas unintendedby-products the of transformaiion Smom proto atIiic to Islamic law. IheIslamic Inheritance System: Theory Gifts Vivos Inter The traDsformaiion fFomproto-Islarnic Islc to law took place so early and so

33 a discussion the vanoushermeneuiical For of devicesthatwereemployed efficct transfonnation, to this see pp. 212-216. ibid., 34 theise On problems, Tabari, see arm' al-bayan ta'2vil 'an ayatal qur'anC6o, 195F1968,voLIV,pp. 283-286; Powers, Stud=, pp. 22-2!9. 35Nc discrepancy disappears prot*Islamic wherede Qur'c statement, m law, "amalcis entitled thc to share females", of two applies pary, not secondary, to heirs.See Stvdies,pp. 65, 102. 36 E2camplessuch denaiionsarc 'vtal(ovcrsubscnption thc Powers, of estate)and the so called'Umuriyyatan (two settledby 'Umarb. al-Rhattab). these,see of cases On ibid.,pp. 56-78.

THE ISLAMIC INHERITANCE SYSTEM

21

quicklythat it lefi vinually no trace in the historicalsources,svherethe secondary stageof development beenmadeto appearas if it werethe primary has one. Ironically, changesthat had theirorip in ad hoc responsesto the historicalcircumstances confFontingthe Muslim communityin the years immediatelyfollowingMuhammad's deathacquired fisedandimmutable a status.At leastsincethe beginning the second/ of ninth century, neither Qur'anicrevelationnor propheiic sunna could be overtly modifiedto reflectchangingcircumstances. circumstances But continuedto change. As the conquestscame to an end, increasingnumbersof Muslims includingmany non-Arab converts Islam(mawalt) to whohadformerly followed NearEastern provincial law found themselvesburdenedby a system of inheritancethat not only severely constrained freedom the indindualto determine ultimatedevolution his the of the of property,but also resultedin the inevitablefragmentation property.The law of of inheritance itseIfcouldnot be reforrned modified, pace Coulson,that does not or but, meanthat legalhistoxy cameto end.Rather, Muslimjunsts(fvqaha) provided simple a but brilliantsolutionto the tensionbetweenthe seeminginflexibility Islamicinheriof tancelawandthe myriad needsanddesires individual of Muslims. orderto appreciate In this solution,it is necessary exae categories Islamiclaw thatdeveloped to of subsequentto the lawof inheritance, specifically, lawof gift (hiba).It alsowill be helpful the to invokea distinction that socialscientistshavedrawnbetweeninhentancelaws and inheritance systems: inheritance laws indicatewho sharesin the estateandhow much he or she will inherit; terrn"inheritance the system"refersto the combination laws, of customs,land tenurerightsand settlementrestrictions that regulatethe divisionof land at a succession.37 Islamiclaw definesa gifi as "a liberality meansof which the donordivestshimby self of the possessionof a thing without the intention of receiving anything in return".38 jurists taught that the rules of inheritance The take effect upon property ownedby the deceased only at the momentof deathor at the time he entershis final deathsickness. Bis disiinctionis crucialbecauseit meansthat a proprietor legally is free to disposeof his property any way he sees fit priorto his finaldeathsickness. in Islamiclawplacesno limitaiions whatsoever uponthe amount property a person of that may alienateduringhis lifeeme, whetherin favourof his eventualheirs or anyone else. Thus, a farsighted proprietor who wantedto esercise greatercontrolover the transmission property of than is allowedby the Islamicinheritance might bepn law transmitting property the next generaiion soon as he wishes,typicallysoon aRer to as marryng producing and offspnng.The liberality Islamiclaw in this regard of contrasts sharplywith that of other nearlycontemporaneous Near EasterIllegal systems.39 By makinga gift,the donoreffectively decreases quantumof the estatethat will the be dindedup among legalheirsuponhis death.A giEt a child,forexample, his to constitutes a partialdisinheritance the donor'sparentsand spouse.GiEs therefore of enable
37 On this disenciion,sce Lutz Bcrkner Franklin and Mendels,"Inheritance Systems,FamilyStructure and Demographic Patterns Western in Europe,1700 1900",in CharlesTilley (ed.),HistoncalStsdiesof Changing Fertility, Pnnceton,NJ, 1978,pp. 209-224, esp. pp. 211-212;Mundy,"Ressamination", 54. p. 38 EdouardSautayra EugeneCherbonneau, and Droit musulman: statutpersonnel des saccessions, du et Paris,1873-1874, 2, p. 28;see alsoJ. Schacht, Inttodaction Islarmc voL An to Law,Oxford, 1964,pp. 157-158. 39 Mundy,"Ressanation", p. 45.

22

LAW QUARTERLY ARAB

and aFnst his parents spousein favour of to propnetor tip the balance entitlement a is in this regard thatthe donormaynot favourone The his of children. onlyrestriction to that is attributed the Prophet.40 over child the other,a restriciion is the mostimportantly, factthata proprietor to drawbacks a giS, Thereate certain is and deliverthe objectof the gift to its recipient, the recipient to requiredformally plDpl-ietor occun,theonginal of take to fonnally possession it. Oncethe transfier d in disadvantageous the case of the not is freeto revoke gifi.This wouldbe pcularly himselfded or in the caseof a revmue-producing in whichtheproplietor adwelling effeciivecontrol FurEermore, over property whichhe wishedto contmueesercising death, the giS reverts as the if formalityis not observed,upon the propnetor's heirs.The donor'sheirs therefore to property be dinded up amonghis inheritable The observed. was that in demonstraiing the formality not properly an have interest who had toldaboutAbuBakr, in betweendoneesandheirsis reflected a story tension failedto take 'A'isha in someproperty al-'Aliya. 'A'isha, his daughter, given reportedly uponhis deathbecl declared and of poon (ihtaza) theproperty, AbuBakrthaefore God"amonghis heirs with the Bookof up "in accordance it that must be dinded at to havebeenmotivated, least and her 'Atislla, brother, hertwo sisters.4l lthe giftseems a of inheritance, desire law the desireto circumvent Islc mpart, by Abu Bakr's failureto observede properlegal formalities. his daughter's by was that fiustrated to otherwould-bedonors. storyservesas a wg The the mght avoid inconvenience sevualwaysunwhicna ptrplietor were there Inpracace to excepiion the rule an and ownership conl of a gifi. Forexample? relinquishing Of the case of a child possessionwas madein had the that recipient to take ediate possession. to did not have the legalcapacity acquire and was who a mLnor derefore maybestowa gift that a father we to a I21 reportattnbuted 'Uthmanb. 'Affan, learn on possession behalfof thatchild.The fatheris merely childandtake his upon or to makethe giS andto summon of to reqwred makea publicdeclaraiion his inteIliion coniinueto exerciseeffective the In mtnessesto attestto it.42 this manner, fathermay to he afterthe gift had been made.Indeed, ght coniinue contrelover the property for the even afterthe childreaches ageof majority, esercisecontroloverthe property is unawareof the gifr;becausethe child is becausethe child one of severalreasons: that it is understood the to challenge fatherfor controlover it; or because unuilling is Thistendency reflected deat}l. the ofthe giftu;pon father's the childwill takecontrol is asked,'4Why it that who reportedly to m a reportattributed 'Umarb. al-Khattab, on to them,so that,if one of [the sons] Zople pve giftsto theirsons and then hold andI didnotpve it to anyone'. in says, dies [thefilther] 'Itis my property, mypossession, to whomI gaveit [andnotto father's If [thefather]dies,he says)sItbelongsto my son otherheirs]".43
no. vol. 1967, 2, pp.285-286, Cairo, 'Abd 'AMalWahhab ad-lati 40SeeShayb Mzzoatta'MaZik,ede to that to revoka dft ofa slavc hchadgiven hisaimor tells the where Pnaphet oneofhisCompanions a similar 807, gifL eachof hischildral had the because donor notgiven SOD thc version, to Accordinga vt wasa sitcin thcncinityof Medina Al-'A^liya 41 Ibid., p. 286,no.808. to Mcdina Syria fFom routc on thcpostal a in was propcs-lJr located alGhaba, site c 806; no.81Q p. 285,DO. 42 Sde p. 286,no.809. 43 .,

THE ISLAMIC INHERITANCE SYSTEM

23

GiftsInterVIVOS: Vanations Some


Severalvariations a simplegift (hiba)could also be used to circumventthe law of of inheritance. charitable (sadaqa) a liberality A t is madewith the inteniionof pleasing God. Customarilymade in favourof the poor membersof the communityor the donor'spoorrelaiives,a charitable is subjectto the rules for simplegif;ts gift (hibat), with the followingspecialfeatures: donormust leave no doubtas to his mtention the to makea charitable giS as opposedto a simplegift or fly endowment; object the of the charitable may not returnto the donorexcept as an inheritance; any giS and donationmade in favollrof orphans,the poor, or female relativesis treatedas a sadaqa.44 Anothervariation the simplehibais a life-giR('umra), meansof which of by the donorconfersupon the recipientthe usufructory rightsto the objectof the gift. The recipientmay not sell theserightsto someoneotherthan the donoror the latter's heirs.Otherwise, life-giSis subjectto the rulesof SS.45 The relationship the between charitablegifts and life-giEs,on de one hand, and inheritance,on the other, is reflectedin early legalsources.46 The most portant variation a giS inter of vivoswas the farriily endowment (waqf ehli).Likea simplegift, a familyendowment provided proprietor a with a legalmeans to removeall or partof the patrimony Som the effectsof the Islc law of inheritance, andto reducethe quantum property of available an inheritance ascendants, as for collateralsand spouses.In addition, creationof the familyendowment the enabledthe pro prietorto establisha lineal descentgroupwith exclusiveusuEructory rights to the endowmentrevenues,and to define the descent strategyaccordingto which these rightspassfiom one generation the next-theoretically, perpetuity. to in Thus, a family endowment provides meansof eng a thatproperty wouldremain intactthroughout the generations. Be tensionbetweenfamilyendowments inheritance clearlyreflected the and is in earlysources.Indeed,severalearlyMuslimjunsts were opposedto certainaspectsof the endowment system.47 Shurayh between695 and717) opposed (d. waqfinsofar it as interfered with or modified Islamiclaw of inheritance; is reported havessd, the he to la habs'anfara'id Allah("no endowmentin circumveniion God's shares").Abu of Hanifa(d. 767), who objected the inalienability endowment to of property, considered waqfto be perssible, but not bindingThese arguments wererejected the majority by of Muslimauthorities. Shafi'i(d. 822) refiltedShurayh's positionon the groundthat familyendowments, typeof giftintervivos,do not constitutean evasionofthe lawof a inheritancebecausethe lattertakeseffecton property ownedby the deceasedat the iime of his deathor whenhe entershis finaldead sickness.Otherlepsts refiltedAbu Hanifa'sposiiionon the strerlgth ofthe sunnaofthe Prophet. is reported 'Umar It that
44 E. Amar,"La Pierrede toucheerraordinaire", Archives Marocaines, 1908, 407408. 13, pp. 4s Ibid.,p. 414 46 See, for examplc,'AW al-Razzaq as-San'ani, al-Musannaf, Karachi,197s1972, vol. 9, pp. 117-135 (sadaqat); Shaybani, Muwatta' Malik,vol. 2, p. 287, nos. 811 and 812 ('umra). 47 See, for exampleAhmadb. 'Amrash-Shaybani, knownas al-Khassaf, Kitab ahkamal-awqaf,Caro, 1322/1904; Hilal b. Yahya al-Ra'y, Kitabakkam alaqf, Hyderabad, 1355/1936; Sahnun,al-Mudavana al-kubra li-imamMalik,Cairo,1323/1905, 15, pp. 98-111; Shafi'i,Kitabal-umm,Cairo,1321-1326, vol. pp. 27F283. See alsoMuhammad Ahmad b. a>Sarakhsi, al-Mabsut, Cairo,132G1331.vol. 12,pp. 27 46.

24

ARAB LAW QUARTERLY

b. al-Khattab approached had Muhammad askedhim what he shoulddo with and property belonging himin Khaybar; Prophet to the responded, "Sequester (ihbas) the capitaland distribute revenues". the This dictumis considered the greatmajority by of Muslimjuriststo haveestablished precedent the institution religiousendowa for of ments.But whatever arguments and againstthe institution, the for therecan be no denyingthe fact that the overwheiing majority Muslimjuristsbelongingto all of four schools of law approved the institution,which becamean integralpart of of Islamiclaw.48 GiftsPostMortem Islamiclaw does not permita testatorto leave a bequestfor any personwho will inherit share a ofthe estate according theprescripave forthedivision property, to rules of a restriction is baseduponthe allegedprophetic that dictum,"Nobequestto an heir" (la wasiyyalisanth).49 Muslimjuristsdeveloped varioustechniques circumvent to this restr;iciion. Sincea grandchild excluded is frominheriting the deceased's by child, a legacy in favourof the formerdoes not violate the restriction. proprietor A who wantsto favourone of his children overthe othersmay therefore makea bequestfor the benefitof his nor grandchild, childof the personhe wantsto favour.As a the minor,the legatee's property wouldbe administered his father- the desired by heir.If the plopl-ietor not havea grandchild the time that he drewup his last will and did at testament, mayleavea legacyfor"thefirstchildbornto my son"or to "allchildren he whowill be bornto his son";in this manner, unbornchild'sfather pn control the will of the property uponthe testator's death.50 The Islamic Isheritance System: Practice The earlyjuristsresponded the needsof Muslimproprietors creating to by whatI refer to as "theIslamic inheritance system", is, a comprehensive iat system thedevolution for of property whichthe rulesof inheritance in weresubordinated othercategories to of law.Oncethe general parameters this systemareunderstood, focusof historical of the mvesiigaiionnecessarily shifis from rules of inheritance, strictlyspeaking, social to processes.On the basisof my studyof pre-modern inheritance disputes,I can make the follownng prelirninary observations: typically,severalyears beforehe died, the headof a familywill transfer to a houseor apartment his wifeor daughters title to in the formof a EjEt; desipatecertain fields, orchards, gardens otherrevenue-producing and
48 At the cnd of the ctecnth andbeginning the twentieth of cenalrics,FrenchonentalistsandBriiish judgesargued familyendowments that wereillegalfroman Islamic perspective. Theirarguments betraya profound rnisllnderstancling histoncal ofthe developent of Islamic anda willingness manipulate las to thc historical record political for purposes. DavidS. Powers, See "Orientatism, Colonialism, LcgalHistory: and the Attachon Family Endowments Algeria India", m and Comparatise Stsdiesin Societyandffistory,31, 1989,pp. 131-171; Bernard Cohen,4'Law theColonial S. and Statcin India", inJuneStarrandJane Collier (eds.),History Pozoer theStudyof Law,Ithaca, 1989,pp. 131-152.Sce alsoMichael and in NY, Anderson's contzbuiionto this rolume. 49 For an analysis the authenucity this dicalm,see Powers, of of Studies, 158-172. pp. 50 Sautayra Cherbonncau, and Droitsulman, 2:32S327.

THE ISLAMIC INHERITANCE SYSTEM

25

of for as properiies an endowment a linealdescentgroup;andmakeotheralienaiions over that property he has accumulated so property thatlittleor none of the immovable whenhe the courseof a lifetimewill be subjectto the effectsof the law of inheritance individual including consideratons, are presumably baseduponmany dies.Suchdecisions and need, personalsyrnpathy, regardfor social and businessrelationships. the I maintainthat the Islamicinhentancesystemfimctionedthroughout Muslim centuriesA.D. In worldfor over a thousandyears,fromthe ninth to the riineteenth examples dis conteniion,I have chosen some representative order to substantiate opinions) a Kitabal-Mi'yar, collectionoffatwas(judicial Som Ahmadal-Wansharisi's A.D. issuedin Spain,Morocco,andTunisbetweenthe tenth andfiSeenthcenturies GiftsInter Vivos of century a manwhogaveall of his property Wereadin afatwaissuedin the fourteenth he subsequently, acquired fi lahu as a t to his son (wahaba jami'amzzlkihi hayaliht); thirdparty.The property desipated it as a gift for an unrelated and some addiiional In that had been givento the non-relative.52 donor'sson triedto recoverthe property a case, nearly contemporaneous a womangaveherbrother t of someproperty another, that she owned;the brotheracceptedthe gift and esercisedcontrolover it for many (iqrar) in years.Shortlybeforehe died, the brotherissueda formalacknowledgment in whichhe statedthathis sisterhadnot pven him the property questionas a gift,but if had merelynoated him as the adistrator of the property; this werethe case, the propertywould still be owned by his sister. When the brotherdied, the sister from attemptto preventthe property in this invoked acknowledgment an unsuccessfill children.53 to passingas an inheritance her brother's of devolution a gift A donormight attemptto esercisecontrolover the subsequent on stipulations thedonee.A womanmadea giftto hertwodaughters certain byimposing who diedwouldrevertto the other. that the shareof the firstdaughter and siipulated died,the latter'sheirstriedto preventthe implementaiion daughters Whenone of the stipulaiion to nle ofthe stipulation. casewasrefelTed a muftiwhonotedthatthe donor's the had the effectof concentrating bulkof her estate in the handsof only one of her the heirs, the survivingsister, therebypreventing deceasedsister'sother heirs from takingthe full amountof the estateto whichthey othese wouldhavebeenentitled. upheldthe validityof the stipulation.54 Yet,the muSi reluctantly the The rulereqliiring donorto leavehis houseandnot returnto it for a yearmight for create a conflict betweenhis long-termgoal of axTanging the devolutionof the needs In one case, a donormanagedto harmonize propertyand his own short-term interestsby imiting the gif}to a certalnSaciionalporiionof the these two confliciing shareof the house appliedonly to the fEactional house. The one-yearrule therefore that had been desipated as a gift, and the donorwas able to continueliving in the
wal-jami' al-mu'rib 'anfata?wiahlifriqiya wal-andalus Kitab al-rm'yaral-mughriO 51 Ahmadal-Wansharisi, wal-rnaghrib,13 vols., Rabat,1981-1983. c 52 Ibid.,5:157(fatwaof al-Yalisuii); ibid., pp. 149-150.

53 Ibid.,5:150(fatwaof al-Yalisuti). 54 Ibid., 9:127-128.

26

ARAB LAW QUARTERLY

housetogether withthe doneewithoutinvalidating donaiion.55 the In anoier, similar case,a manlinng in Cordova the twelithcentury in reserved himselflQpercentof for the revenues someproperty he hadgivento his of that dallghters a charitable as donaiiom The property dividedamongthe children,and ten was per cent of eachchild'sshare was reserved the father.56 for A gift inter vivos wouldfrequently becomethe subjectof a disputebetweenthe doneeor donees,on the one hand,andthe donors other heirs,on the other.The latter couldnot contestthe St on the ground it circumvented that the Islamic of inheIilaw tance,but they mightcontestit on the groundof an irregularity its establishment. in In fifteenthcenturySpain,a manpurchased dwelling a in his own name,but paidfor it with revenues property he hadprelriously of that assigned a charitable to his as gift fourminordaughters. he maiIlpaidforthe housein 1 several instalments; paying after thelastinstalment, summoned he witnesses attestto the factthathe hadpurchased to thedwellingon behalfof his fourdaughters. Whenthe mandied,his sisterSOUt to havethe dwellingincludedas partof her brother's estateon the groundthat he had continued live in the house until the day he died;thus, to she cled, the formal requirement transfer to (hiyaza)hadnot beenproperly observed. muRito whom The thecase was referred opinedthatif the fatherhad takenpossession the dwelling of on behalf his daughters, of then hiyazahad in fact takenplace.It is interesting to note that mufticoncluded fatwaby rebuking the his the womanfor jeopardizing relations with four niecesfor the sakeof an insignificant her shareof the estate.57 Anotherway to resolvethe tensionbetweena proprietor's short- and long-term interests by meansof a combination a charitable and was of gift a life-gift ('umra). a In case occurred twelfth that in century Spain,twocloserelatives, maleandthe other one female, a pasture jointKwnership. femalegave held in The her half of the pasture tO the male as a charitable One yearlater,aRertransfer gift. (hiyaza)of the sadaqa had become legallyeffective, mandesignated sameshareof the the the pasture a life-gift as for femalerelative. a resultof thesetwo his As transactions, malenowownedboth the shares the pasture,whichwouldpass to his heirs when of he died,while the female was entitledto the usufiuct of half of the pasturefor the remainder her life. This of example demonstrates malesmightapplypressure also how on femalesto relinquish their property rights.58 A previously unmentioned method circumventing effectsofthe lawof inheritof the ance the ficiiiioussale.We read,for example,of a is paternal Fandmother who sold one-fourth her estate for an unspecified of but artifically low pnce to her granddaughter's prospeciive husband; sale was made on the condiiionthat the man the immediately transfer property his fianceeas her bnde-price. the the to At sameiime, the grarldmother provided girlwith a dowryby givingherone-fourth her the of estate as gift. By meansof these two separate a but sultaneous transaciions, grandthe
55 9:167(fatwaof IbnLubaba). lbid., 56 9:167 lbido tfatroa Ibnal-Hajj). of s7 5:38-39(fatwaof al-Mawwaq). Ibid., 58 9:166 (fatwaof Ibn al-Hajj). a similar lbid., For case, see ibid.,9:146,whercIbn Zarbnullificsthe arrangements theonginal because doneefailedto waitone yearbefore assigning houscas a lifesifi fortic a original donor.

THE ISLAMIC INHERITANCE SYSTEM

27

mother transfered ofherestate hergranddaughter hadeffeciively had half to and disinherited ownson (thebride's her father) daughter. grandmother one and The died yearafter malmage beenarranged, before wasconsummated. her the had but it Upon death,all of theinterested parties became involved litigaiion.59 in The fly endowment,typeof giftintervivos,wasusedextensively Muslim a by
proprietors pre-modem in iimes.60 One exarnple may sdice. In the late thirteenth or earlyfourteenth centuries A.D., a certainAbu al-Qasimb. Bashirdesignated garden a outsideofthe IronGateof Fezas an endowment the use of his son,AbuMuhammad for 'Abdallah the latter'sdescendants, long as they proliferate theirbranches and "so and erend". Sis generations overa hund,red laterthe endowment stillfimctionand years was ing according the termsstipulated the founder despitechallenges to by frompersons outsidethe linealdescentgroupandcontentionamongmembers the descentgroup of itself.The creationof a fly endowment clearlyprovided founderwith a means the of ensunng that his property wouldremainintact for generations afterhis death. GiftsPost Mortem A propnetorwho wants to favourone of his childrenover the others may leave a bequestfor the bvnefitof his minorgrandchild; he does not havea grandchild the if at ame that he drawsup his last will andtestament,he may leavea bequestin favourof an as yet unborngrandchild. eithercase, the proprietor's In child,that is, the desired heir,wouldeserciseeffectivecontrolover the property when the legacytookeffect.62 Weread,forexample, a casein whichthe testator of bequeathed one-third his property of to the filtureozpling of his threesons,stipulating his threesonsshouldadminister that the propertyuntil such time as childrenwere born to them or the sons despaired of leavingany issue.63 Such an arrangement likelyto be contestedby the testator's was other heirs. The notarieswho draSedandservedas witnessesto a last will andtestament ght play a crucialrole in mediating betweenlegal theoryand practice.A womanon her deathbedsummoned notary-witnesses attestto her last will andtestament. two to She

informed themthatshewanted leave to one-tErd herestate a bequest twoof of as for herdaughters, Maryam 'A'isha, the exclusion a thirddaughter, and to of Maymuna, whoallegedly detested mother. twonotaries her The explained sucha stipulaiion that violated rule, bequest favour anheir" thiscase, heirs), therefore the "no in of (in two and would revre Maymuna's consent bevalid. this,thewoman to At inqed, "And the if
59 Ibid., 8:102,cf. Sautayra Cherlzonneau, and DrozimtlsulmunX 2:23. 60 Esates of the percentage landthat hadbeendesignated publicandprivateendowments the of as in vanous repons of the Ottoman Empirein the liineteenth centuryrangefromone-fifthto two-thirds all of landed property.Sce Fuad Kbpralt, "L' Institutiondu VakoufS nature jundiqueet son evolution sa histonque",Vakiflar Dergisi, 1942,p. 3 (patie franfaise);GabrielBaer,Studieson the SoctalHistory 2, of ModOnEpt, Chicago,1969,p. 79. 61 Wansharisi, Mi'yar,7:486-514.For an analysisof this case, see my "A CourtCase fiom FourteenthCenturyNorthica", forthcoming theournal of the AmencanOnentalSociety,110, 1990. in 62 Wansharisi, Mi'yar,9:362 (fatwaof Ibn Abi Dunya);Sautayraand Cherbonneau, Droit musvlman, 2:326-327. 63 Wansharisi, Mi'yar,9:360(fatwaof Abu'Abdallah Ziyadatallah). b.

bequestwerefor Maryam's and 'A'isha's children?" Such a stipulaiion, indicated, wouldbe permissible. the witnesses The document therefore was with the woman's drawnup in accordance wishes.Whenthe testator died,Maymuna the will on the groundthat unsuccessfillly challenged her motherhad deprived her of her lawfiul estate.64 shareof the As mentioned, drawback one of a fady endowment that was createdinter vivos wasthat the founder to had immediately relinquish controlof the property. person couldavoid this inconvemence A by creaiinga testamentary become endowment effective that would onlyuponhis death;suchan endowment, however, one-third his assets. of couldnot exceed Suchaninstrument created was in theyear791/1389 a Fatima by certain az-Zarhuni herson,AbuZayd and 'Abdal-Rahman Khanusa. b. will testament, and In a jointlast thesetwo stipulated that "one-third theirentire of be pven to "thefirstchildborn estate"was to aliveto the two children, the 'A'isha Muhammad, and aforementioned of 'Abdal-Rahman''. Subsequently, bequestwas to the an endowment the descendants the for filnctionas of firstunbornchild.A year generation 826/1422,one of AbuZayd'sagnatic later,in the relatives wasnot a member who descent groupinitiateda lawsuitin an of the lineal effiort acquirecontrolof the to property.65 endowment

28

ARAB LAW QUARTERLY

CONCLUSION I mtain that the Islamicinheritance world benveen ninthcenalryandthe system fimctionedthroughout Muslim the the middle thenineteenth of features descnbed century.66 esseniial were Its by onentalist scholars and the bepning of the tweniiethcentunes. wniingbetween endof the eighteenth Refernng the various to missionproperty(inhentance, modesforthe transof familyendowments, donations,and testamentary dispositions) by filies in used Istanbul, eighteenth the century noted flexibilityof the the orientalist D'Ohsson Islamicinheritance system.67 a treaiiseon Islc In published1873-1874, the in law French onentalists Edouard Sautayraand Eugene CherboImeau concludedthat the Islamiclaw of inheritance was rarelyappliedto immovable property thatthe division and of suchproperty wasnormally accordancethe rulesforfamily with carnedout in endowments; reached they basis this conclusion the of their essminationof on estate Similarly,Michel-Fares remarked that"onehasonly inventories.68 in 1925 Boulos to in of property deatharerecorded consultthe registers whichthe tsmission upon iIl order verify to the almosttotalabsenceof applicaiion complicated of these the rules(viz.,the Islamic of law inheritance)."69 A decade
649:367-68(fatwaof lbid., as 657:311-321.I am Abual-Hasan Saghir). Ed., currently preparing analysis this casc an 66 It perEaps more of would be accte to spai of Islamic inhentancc "Reinaiion",54,notes,theIslamic p. systems,in the plural. inicritance system political that have should studied thecontext As Munday, be economies in of ic diffiering characterised Islamicsocietythroughout 67 Mouradgea T?Ziills its history. D'Ohsson, Tableau general l're de ottoman, "R>cs7lmination", p. 6. P 1787-182R, citediIlMundy, 68 and Sautayra Cherbonneau, Droitrmlman, vol. 2, pp. 213, 69 Michel-Faris Lu Succession 220,347,399. Boulos, en droiimasulman: sonorigtne sonerolution, et Paris,1925,p. 12.

THE ISLAMIC INHERITANCE SYSTE1t

29

of the later,G. H. Bousquetacknowledged greatpracticalimportance faniilyendowthe ments as a legalmeansof circumventmg law of inheritance.? 1930, knowledgeof the Islamic inheritancesystem Beginningin approximately shiEc the Although reasonsfor this epistemological lie outside seemsto havedissipated. First,during two contnbutg factorsmaybe meniioned. the scopeof the present the colonialexpansion, scopeof Islc law was proFessively the periodof European and law reducedto the domainof faxnily (marriagedivorceandinheritance), colonial applythe Islamic themselvesboundto faithfillly considered juristsand administrators inheritancerules;they did not, however,view it as their obligaiionto apply other system.Second duringthe courseof the nineteenth aspectsof the Islc inheritance attack.From to was century,the systemof familyendowments subjected widespread cameto be viewedas an obstacleto the economic Algeriato India,fanily endowments advocates theories, by of welfareandsocialprogress Muslimsocieties.Inspired Western to and legalobjeciions faniilyendoweconoc) moral,religious of reformmarshalled by development socio-economic for responsible retarding ments,whichwereallegedly Colonialgovernments capital resources. sequesteringlargequantiiiesof a naiionXs assistance important they the to passedlepslaiionintended dismantle instinliion; received to justifyan who discoveredthat one of the best ways Europeanorientalists, fi*om was attackon faniilyendowments to discreditthe institutionin ie eyes of Muslims propagateda negaiive, hostile atiitude themselves. These scholar-administrators scholarlyliterature. that towardfamilyendowments cameto pervadethe subsequent for may phenomena providea pariialexplanation the factthat These two inter-related unaware law, Islamicinhentance butarelargely recognize legal contemporary historians system.7l of the Islamicinherltance realitiesto cloudour visionof the As historians,we must not allowcontemporary was ofthe Islamiclawof inheritance oSenthe es, the application past.In pre-modetn fiom onegeneraiion oftrantiing property stagem theprocess lastandleastimportant to the next. By payinggeater atteniionto inhentanceas a socialprocess,we will gain Muslimsocieiies. of a betterunderstanding the socialdynamicsof pre-modern
essayX

pp. Successions, 145-lS0. 70 Bousquetand Peliier, and Coloxiialism, LegalHistory"; sce of analysis thisphenomenon, my 44Orientalism, 71 Fora moredetailed Perspecove", T Centuty eslaiion: A CoX;lpax-tive Waqf Twentieth in i;amily "Islamic Mahmood, see alsoTahir 8:1, Law Islamicand Comparative Quanerly, 1988,pp. 1-20.