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The Status of Children Born Out of Wedlock in Indonesian Context with Special Reference to Their Inheritance Right Perspective of Maqasid Al-Shariah

https://dx.doi.org/10.2991/icils-18.2018.21

https://www.researchgate.net/publication/328341403_The_Status_of_Children_Born_Out_of_Wedlock_in_Indonesian_Context_with_Special_Reference_to_Their_Inheritance_Right_Perspective_of_Maqasid_Al-Shariah?_sg=2aXMIwzhegUQHqTYU_jyXycX0DS5IvyYoNFq-Kw8_KrQJhjK2kw2EuaewFwRxiY3fwosD8mQW56Bwg.-aJyaTkRamesCUyRgbqGPSF-6rhbtC2PEuRGUzJbEzU_W_vgarVIKiW7ebGn5QSU4JmLsemqm0be2YwdXLYvWg

THE PRIORITY OF HEIRS: HARMONIZING SHIITE AND INDONESIAN CIVIL LAW OF INHERITANCE IN MAQĀSID AL-SHARĪ`AH PERSPECTIVE

https://digitalcommons.unl.edu/libphilprac/3362

https://www.researchgate.net/publication/338965903_THE_PRIORITY_OF_HEIRS_HARMONIZING_SHIITE_AND_INDONESIAN_CIVIL_LAW_OF_INHERITANCE_IN_MAQASID_AL-SHARIAH_PERSPECTIVE

CONTINUOUS CHANGE OF ISLAMIC LAW

Two main sources of Islamic law; Quran and hadith especially the first one had been sent down not only for Muslims in Arabian peninsula but also for them living across the world, it was not only for human beings in the seventh century but also for twentieth and so forth. The overarching of the Quran to guide all humans living in all eras and places is one of its miracles. It is always compatible with the circumstances of the places anywhere humans living in (al-Islām ṣāli li kull zamān wa makān).

The revelation of the Quran had ceased when the Prophet Muhammad died in 632 CE. However, miraculously its principles well-suited towards the changes in society all over the world. The Quran that is utilizing multi-meaning Arabic texts and has many synonyms supported its universality as the Muslims may interpret it to meet the needs of societies.  Therefore Muhammad said to Muslims to hold the Quran and hadith tightly to not going astray in facing social problems (Taraktu fīkum amrain lan taḍillū mā tamassaktum bihimā; al-Qur’ān wa sunnat al-rasūl).

The change of circumstances differs from societies to others. But, their changes contradicted each other for instance the changes facing people in the United Stated differ from those of Saudi Arabia. The differences of the problems facing Muslims from societies to others made the possibility of the different rule of law governing them as Imam Shafi’i had different fatwas from old opinions (qaul qadīm) when he lived in Iraq to new ones (qaul jadīd) when he had been in Egypt.

The differences of opinions of Muslim scholars from societies and eras to others do not contradict to the Quran, but their interpretation shaped by dissimilar circumstances facing them makes them different. The two main principles of Islamic law; justice (‘adālah) and common welfare (maṣlaḥaḥ) as was said by Ibn Qayyim al-Jauziyah become the foundations to solve the problems facing them. Therefore, it does not make sense to take verbatim the fatwa issued by Muslim scholars to solve the contemporary questions because of different situations. The writer concludes that Islamic law is continuously change well-suited with the transformation of societies (taghayyur al-fatwa bi taghayyur al-azminah, wa al-amkinah, wa al-aḥwāl).

The Place of Justice in Islamic Law

 

There are many terms in Arabic used to mean justice namely ‘adl, and qisth.The word ‘adl in the Qur’an counts 24 words diffused in 11 chapters, while the word qisth amounts to 22 words in 16 chapters. It means that the principle of justice presides the crucial postion in the Islamic law. However, the theme of justice was scarcely discussed in the principle of Islamic law (uṣūl al-fiqh), except the current books of the principle of Islamic law.

Jasser Auda in his book “Maqāṣid al-Sharī‘ah as A Philosophy of Islamic Law: A System Approach” (2007) classified the maqāṣid into three categories; general, specific, and partial maqāṣid. He places the principle of justice in the first category i.e. general maqāṣid together with the principle of prosperity (maslaḥah). It means that the principle of justice and prosperity occupy the prime goals as well as bases in Islamic law. The formulation of Islamic jurisprudence (fiqh) should be done towards the principle of justice and prosperity of society.

Parallel with the Auda’s thought, Ibn Qayyim al-Jawziyyah in his book “I‘lām al-Muwaqqi‘īn” said that Shariah is based on the wisdom and people’s prosperity in worldly life and hereafter life as well. For him, sharia is all about justice and prosperity so any rules, laws and regulations that contradict against the principle of justice and prosperity are not the sharia and must be altered towards justice ones.

Gharawayn cases in Islamic law of inheritance are good examples. The gharawayn are the inheritance cases when the deceased survived by her mother, father, and wife or his mother, father, his husband. The divine rule of inheritance on the share of mother is one-third (fa li ummih al-thuluth) in default of the deceased’s children or two brother and sister or more but in the first case when the mother is allotted to one-third of properties, she will get double of father’s share as the husband gets three-sixth (3/6), the mother gets two-sixth (2/6) and the father gets residuary one-sixth (1/6). Even though the allotment of the inheritance conforms with the divine rule but contradicts against the principle of justice of inheritance i.e. the male’s share is double that of female when they exist in the same degree (li al-dhakar mithl ḥaḍḍ al-unthayayn). To alter this divine rule, Umar ibn Khaṭṭab interpreted and changed the meaning of the verse “fa li ummih al-thuluth” from one-third of whole property to one-third of residuary of property after allotted to the husband (thuluth al-bāqī). It means that the share of mother is one-sixth (one-third doubled with the residuary of husband’s share i.e. one-second). Therefore the share of husband is 2/6, mother is 1/6, and father is 2/6 and this allotment is suitable to the principle of justice of Islamic law of inheritance “li al-dhakar mithl ḥaḍḍ al-unthayayn”.

Based on the Gharawayn cases formulated by Umar ibn al-Khaṭṭāb, it can be concluded that the principle of justice should be placed as main concern for Muslim scholars in the formulation of Islamic law even when the divine rule contradicts against the principle of justice, it should be prioritized over the divine rule because the principle of justice is the base as well as goal of Sharia while this principle is always change over the time, condition and circumstance. The prioritizing the principle of justice over divine rule is parallel with the Najmuddin al-Ṭūfī’s view on the place of prosperity (maslaḥah) over divine rule.

Methodological Approaches to Study Islam

Background

Islam and its teachings were often understood differently among Muslims as well non Muslims. There were many variants of sects and schools in each Islamic teachings from theologies, mystical teachings, Islamic laws to education whereas the sources they had taken are same, namely Qur’an and hadith. It is pity that each sects and schools claimed that their teachings as the only truth and negated the truth of others. But, Muslims of different sects and schools killed each other to defend their beliefs and teachings against others whose teachings different from theirs.

Therefore, it is important for the students who take magister program to know Islam from the first hand in time when the Qur’an been revealed to Prophet Muhammad and when Muhammad preached the revelation to the ummah. It is also important that the students knows the process how Islamic knowledge to be formulated especially in time when Islamic history was noted as the golden age of Islam as there were many innovations and formulations of Islamic disciplines from Islamic legal jurisprudence (fiqh), theory of Islamic law (ushul al-fiqh), theology (ilm al-kalam), Islamic mystic (tasawwuf), exegesis (tafsīr), explanation (syarh), science of tradition (ilm al-hadith), Arabic grammar (ilm nahw), mathematics, astronomy, medicine to geography. This time spirit of texts, Qur’an and hadith became significant factors to encourage Muslim scholars to make inventions and innovations (ijtihād) towards Islamic development and the prosperity of the ummah.

The spirit of the Muslim scholars that was based on the spirit of the Qur’an and hadith to make innovations must become a basis for contemporary Muslim scholars to make inventions and innovations for the prosperity of Ummah based on the current knowledge and methodological reasoning used to acquire knowledge.

Subject Materials

To know Islam from the first hand, there are four aspects to be the focus of study, namely:

  1. Texts that consists of Qur’an and hadith text;
  2. Persons that consists of Prophet Muhammad and Muhammad’s pupils;
  3. Arabic communities that consist of the structure of community, kinship lineage, culture, custom, tradition, worldview of Arabic communities; and
  4. Geographical aspects.

The melting of the four aspects bears many innovations and inventions in Islamic knowledge and disciplines as mentioned above.

Therefore methodological approaches to the Islamic studies cannot be separated from the four aspects, namely:

Methodology for study Qur’an and hadith

  • Amina Wadud’s Hermeneutic method
  • Hasan Hanafi’s al-Turath wa al-Tajdīd Mawqifunā min al-Turāth al-Qadīm
  • Fazlur Rahman’s Double movement
  • Mahmud Mohammed Toha’s Second message of Islam
  • Abdullahi Ahmend an-Na’im’s theory of naskh
  • Muhammad Syahrur’s Theory of Limitation
  • Jasser Auda’s Theory of Maqāshid

Methodology for study Prophet Muhammad and his pupils

  • Fatima Mernissi’s psychological approach
  • Imam al-Qarafi’s the role divisions of Prophet Muhammad

Methodology for study Arabic communities and Geographical Aspects

  • Abid al-Jabiri’s Takwīn al-Aql al-Arabī
  • Robertson Smith’s Kinship and Marriage in Early Arabia
  • Bassam Tibi’s Cultural Accomodation to Social Changes
  • Najm al-Dīn al-Thūfī’s Ri‘āyat al-Maslahah
  • Khaled Abou al-Fadl’s Theory of Authoritarianism
  • Nasaruddin Umar’s Theory of Gender

Gender Perspective on The Shiite Law of Inheritance

Study on the position of male and female heirs in Shiite inheritance system will be analyzed by means of gender analysis proposed by Amina Wadud. The discourse of inheritance have troubled Wadud’s thought on Islamic justice as the Qur’an says:

يُوصِيكُمُ اللّهُ فِي أَوْلاَدِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الأُنثَيَيْنِ [النساء: 11]

Allah instructs you concerning your children: for male, what is equal to the share of females.

 

This verse literally means that the share of son is twice that of daughter. The differences of their shares annoy the sense of justice within Islamic law while Islam is the religion compatible with all times and places (al-Islām ṣāliḥ li kull zamān wa makān).

Wadud comprehended this verse by connecting it to other verse, as follows:

الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاء بِمَا فَضَّلَ اللّهُ بَعْضَهُمْ عَلَى بَعْضٍ وَبِمَا أَنفَقُواْ مِنْ أَمْوَالِهِمْ [النساء: 34]

Men in charge of women by (right of) what Allah has given one over the other and what they spend (for maintenance) from their wealth.

 

The share between son and daughter is connected with the term qiwāmah on this verse. It means that the son get the share twice that of daughter because the son (man) has to spend their property for the support of daughter (woman). Thus, there is reciprocity between privileges of inheritance and responsibility toward family and the deceased.[1] To understand the verse, Wadud also used means “at the time of revelation”. It means that at the time of revelation, the male share being doubled that of female heirs in same footing was correspondence to the greater responsibility of the male for nafaqah of the family that female did not have.[2]

After reading all the inheritance verses as the heirs consisting not only children but also parents, siblings, distant relatives, as well as offspring, Wadud concluded that a) the female heirs are no way to be disinherited, including distant ones; b) the distribution of inheritance between the deceased’s relatives must be equitable, c) the distribution of inheritance must regard the naf‘ (benefit) of the bereft of the deceased’s relatives, and d) some wealth can be bequeathed.[3] The epistemology employed by Amina Wadud in interpreting the right of inheritance of male as well as female heirs will be useful for analyzing the Shiite inheritance system.

The Shiite inheritance system grouped blood relationship into three classes, namely Class One consisting of two groups, namely: a) parents and b) son and daughter; Class Two consisting of two groups, namely: a) grandfather and grandmother and b) brother and sister; and Class three consisting of also two groups, namely: a) uncle and aunt through father’s line, and b) uncle and aunt through mother’s line.

It must be borne in mind that every class consists of both male and female heirs. Male as well as female heirs exist in the same footing to enjoy inheritance as well as prevent other heirs more distant than themselves from the deceased to inherit. It means that the Shiite equalizes female and male heirs. They have same right to acquire inheritance properties and to prevent other remote heirs. The Shiite also does not differentiate the heirs who were descended or related to the deceased through male or female lines. The grandson (son’s son) and grandson (daughter’s son) for instance have the same footing and right to acquire inheritance properties.

However, the shares acquired by male and female heirs as long as they lay on the same level follow the rule “the male heir gets twice that of female one” (li al-dhakar mithl ḥaḍḍ al-unthayayn). The Shiite argues that the differences of the shares acquired by male and female heirs because the male heirs are responsible for the duties not being obliged for female ones. The man has responsibility and duty to jihād, maintenance for his families, and paying blood money while woman does not.

The Shiite’s opinion is compatible with that of Wadud as she emphasizes the importance of “the time” when the inheritance verses had been revealed. She also said that the double shares privileged by the male heirs were compatible with the responsibilities and duties they exerted. She said that there is reciprocity between privileges and responsibilities[4] in the distribution of shares of inheritance.

The Wadud’s statement that “there is reciprocity between privileges and responsibilities” in the distribution of inheritance is in line with the Babalīlī statement “al-ghunm bi al-ghurm[5] and also compatible with Zaenul Mahmudi’s finding of his doctoral thesis that the distribution of inheritance follows the rule of distributive justice.[6] Therefore the distribution of inheritance is a “package system”. It means that the shares of male heirs that are twice that of female ones legally can be distributed to them if they already exert their duties and responsibility. Conversely, the male heirs’ right of twice shares of those of female ones is not legal if they do not exert their duty and responsibility towards their female relatives.

Wadud’s regard on “at the time of revelation” in the distribution of inheritance properties is in line with Ibn Qayyim’s statements “al-ḥukm yadūr ma‘a ‘illatihi wa sababihi wujūdan wa ‘adaman[7] (the law revolves around its cause whether exists or does not exist) and “al-fatwā tataghayyar bi taghayyur al-zamān, wa al-makān, wa al-aḥwāl[8] (the legal opinion changes as the times, the places, and the circumstances change). The statements give light to understand the Islamic law of inheritance as the recourse to the time of revelation is a must for correctly understanding the rule underlining Islamic law of inheritance. The recourse to the time when inheritance verses revealed is to comprehend the social and political conditions that may shape the law of inheritance or become a basis for the inheritance ruling.

These statements also indicate that the law will change as the circumstances, times and places change. The contemporary issues on the women condition boosted by many means namely: the development of technology of information, gender mainstreaming, universal declaration of human right, convention on elimination of discrimination against women (CEDAW), etc. make status of women higher than that of women in time when the Sunnite and Shiite inheritance system being formulated. The differences of women condition are the causes for the changing of inheritance formulation in line with contemporary condition.

[1] Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective, (New York: Oxford University Press, 1999), pp. 70-71.

[2] Amina Wadud, Inside the Gender Jihad: Women’s Reform in Islam, (Oxford: One World, 2007), p. 37.

[3] Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective, (New York: Oxford University Press, 1999), pp. 87-88.

[4] Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective, (New York: Oxford University Press, 1999), pp. 70-71.

[5] Maḥmūd Muḥammad Bābalilī, al-Sharī‘ah al-Islāmiyyah: Sharī‘ah al-‘Adl wa al-Faḍl, (Mecca, Rābiṭah al-A‘lam al-Islāmī, 1414 IE), p. 57.

[6] Zaenul Mahmudi, “Keadilan dalam Pembagian Warisan Bagi Perempuan dalam Islam (The Justice Employed in the Distribution of Inheritance Properties for Wome in Islamic Law)”, Doctoral Thesis, IAIN Sunan Ampel Surabaya, 2012, pp. 193-231.

[7]Ibn Qayyim al-Jawziyyah, I‘lām al-Muwaqqi‘īn ‘an Rabb al-‘Ālamīn, Vol. 5. (Riyāḍ: Dār Ibn al-Jawzī, 1423 IE.), p. 528.

[8]Ibid, Vol. 6, p. 114.

The Position of Male and Female Heirs in Shiite Inheritance System

The position of male and female heirs in Shiite Inheritance system is different from those of its counterpart, Sunni inheritance system. The female heirs enjoyed some advancement in the Shiite inheritance system as it did not differentiate between male and female heirs in the matter of their opportunities to take the properties inherited by their deceased. As long as female and female heirs have the same proximities to the deceased, they have same position to inherit and block other heirs from inheritance.

The three classes of heirs grouped by Shiite inheritance system suggest that there are no differences between male and female heirs of the deceased in term of their chance to inherit. Every class consists of two group composing of both male and female heirs who occupy the same nearness to the deceased. The first class comprises two groups namely a) sons and daughters how low so ever and b) father and mother; the second class also comprises two groups, namely: a) brothers and sisters whether full, consanguine or uterine, and b) grandfather and grandmother whether related to the deceased from male line or female one and their descendants. And third class also consists of two groups, namely: a) uncle and aunt whether full, consanguine, or uterine related to the deceased from male line, and b) uncle and aunt whether full, consanguine, or uterine related to the deceased from female line and their descendants.

The daughter for instance, who inherits only with the brother of the deceased for instance will block the brother from inheritance as the son do, because they have different classes. The daughter exists in first class while the brother in second one considering the rule of Shiite inheritance that the first class of heirs block the second and third one. Therefore the whole of the deceased’s properties will go to the daughter and no inheritance for the brother. The condition differs from that of its counterpart, Sunni system that gives half of inheritance properties to the brother as residuary after the other half had been given to the daughter as the sharer (dzawī al-furūḍ).

On the other hand, the heirs in Shiite inheritance system based on the shares the heirs acquire can be classified into two groups, namely dhū farḍ (the sharers) and dhū qarabāt. The first group has equal meaning with dhawī al-furūḍ or aṣḥāb al-furūḍ termed by its counterpart system, Sunnite inheritance system. While the second is occupied by the heirs named by Sunnite inheritance system ‘aṣabah and dhawī al-arḥam.‘Asabah heirs who exclusively consist of male heirs related to the deceased from male lines and dhawī al-arḥām heirs who consist of male and female heirs as well related to the deceased through female lines were combined into one group the Shiite inheritance system names them dhū qarabāt.

The most prominent differences between Shiite and Sunnite inheritance system were laid down in dealing with the heirs related to the deceased through female lines. Sunnite termed them dhawī al-arḥām whereas Shiite counterpart named them dhū qarabāt similar to the heirs related to the deceased through male lines. Dhawī al-arḥām heirs (in Sunnite inheritance system) can obtain the inheritance properties in default of dhawī al-furūḍ, ‘aṣabah, mawlā mu‘tiq, ‘aṣabah li mawlā mu‘tiq, and return (radd) method. Whereas the Shiite inheritance system placed them in the second place in after the dhū farḍ heirs.

The big difference between Sunnite and Shiite inheritance is that the Shiite omitted the ‘aṣabah heirs employed by Sunnite counterpart as main heirs who take residues of the properties after satisfying the Quranic (dhū farḍ) heirs. The Shiite omitted the ‘aṣabah heirs as the verse says:

لِّلرِّجَالِ نَصيِبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالأَقْرَبُونَ وَلِلنِّسَاء نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ نَصِيباً مَّفْرُوضاً [النساء: 7]

For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much an obligatory share.

 

The Shiite said that the verse indicates the omission of the priority of male heirs (‘aṣabah) over female ones (dhawī al-arḥām) as the verse does not say that the residues going to the prime male heirs.[1] Therefore the verse suggests the deletion of ‘aṣabah heirs who were related to the deceased through male lines. The verse also argues the equality between ‘aṣabah and dhawī al-arḥām heirs as they have same footing in their right of inheritance.

The Shiite also cited the Shiite tradition to omit the ‘aṣabah heirs as prime heirs, as follows:

عن علي بن إبراهيم، عن صالح بن السندي، عن جعفر بن بشير، عن عبد الله بن بكير، عن حسين الرزاز قال: أمرت من يسأل أبا عبد الله عليه السلام المال لمن هو، للأقرب أو للعصبة؟ فقال: المال للأقرب والعصبة في فيه التراب.[2]

Narrated from ‘Alī ibn Ibrahīm, from Ṣāliḥ ibn al-Sindī, from Ja‘far ibn Bashīr, from ‘Abd Allāh ibn Bukayr, from Ḥusayn al-Razzāz said: “ I ordain who asks Abā ‘Abd Allāh peace be upon him whose does have the property left, blood relative or ‘aṣabah heirs? He answered: “The property left is for blood relative heirs and ‘aṣabah heirs were the dust in the mouth”.

 

The differences between The Shiite inheritance and that of Sunnī counterpart on their stance toward female heirs are: the first, they both altered the customary law in accordance with the Qur’an, but the Shiite interpreted the Qur’an more wider sense as altering not simply the old principles but also giving rise to a new set of principles, while the Sunnite only allowed a minimal change as the Sunnite only interpreted the Qur’an through superimposing its provisions on the customary law. The second, The Shiite tend to generalize the Qur’anic teachings on inheritance and utilize them to new similar condition by means of analogy (qiyās) while the Sunnite counterpart tended to particularize the Quranic inheritance verses remained within the frame of customary inheritance system.[3]

There is equality between male and female heirs in Shiite inheritance system. The equality is not only in their opportunities to obtain inheritance properties since they exist in same footing to obtain inheritance as classified on three classes of heirs but also in preventing other heirs more remote than themselves. The female heirs are able to prevent male heirs who exist in the next classes. The rule is based on the Shiite tradition, as follows:

عن أبو على الأشعري، عن محمد بن عبد الجبار، عن صفوان، عن عبد الله بن خداش المنقري أنه سأل أبا الحسن عليه السلام عن رجل مات وترك ابنته وأخاه قال: المال للأبنة.[4]

Narrated from Abū ‘Alī al-Ash‘arī, from Muḥammad ibn ‘Abd al-Jabbār, from Ṣofwān, from ‘Abd Allāh ibn Khidās al-Minqarī who asked Abā al-Ḥasan peace be upon him the case of the man who died and left his daughter and his brother. He answered: “The property is for the daughter”.

 

The Shiite also cited the hadith as follows:

عن محمد ابن يحيى، عن أحمد بن محمد، عن الحسين بن سعيد، عن القاسم بن عروة، عن بريد العجلى، عن أبي جعفر عليه السلام قال: قلت له: رجل مات وترك ابنته وعمه؟ قال: المال للإبنة وليس للعم شيئ، أو قال: ليس للعم مع الإبنة شيئ[5]

Narrated from Muḥammad ibn Yaḥyā, from Aḥmad ibn Muḥammad, from al-Ḥusayn ibn Sa‘īd, from al-Qāsim ibn ‘Urwah, from Burayd al-‘Ijlī, from Abī Ja‘far peace be upon him said: “I asked him about the man who died and left his daughter and his uncle”. He answered: “The property goes to the daughter and no property for the uncle” or “There is no property for uncle inheriting with daughter”.

 

However, their shares of inheritance still follow rigidly to the Qur’anic and hadith stipulation. The share of the daughter who inherit with the son for instance is follow the “1 : 2 rule”, the share of the daughter is half that of the son. It is because the female heirs are excused from many duties imposed to male ones such as service in holy war, maintenance of their relations and payment of expiatory fines.[6] The female is not burdened with responsibility towards their families as the male is as the Shiite tradition says:

عن علي بن إبراهيم، عن أبيه، عن ابن أبي حماد، عن هشام، عن الأحول، قال: قال لي ابن العوجائ: ما بال المرأة المسكينة الضعيفة تأخذ سهما واحدا ويأخذ الرجل سهمين؟ قال: فذكر بعض أصحابنا لأبي عبد الله عليه السلام فقال: إن المرأة ليس عليها جهاد ولا نفقة ولا معقلة وإنما ذلك على الرجال ولذلك جعل للمرأة سهما واحدا للرجل سهمين.[7]

Narrated from ‘Alī ibn Ibrāhīm, from his father, from Ibn Abī Ḥimād, from Hishām, from al-Aḥwal said: “Ibn Abi al-‘Awjā’ asked me: “Why does the poor and humble woman get only one share while the men two shares?”. He answered: “Some of our companions extend the problem to Abī ‘Abd Allāh peace be upon him saying: “Verily, the woman is not obliged for jihād, maintenance, and paying blood money, these duties are obliged to men. Therefore, the share for woman is one and the share of men is two”.

 

The equality of male as well as female heirs as Shiite inheritance system does not differentiate between the heirs whether descended and related to the deceased from male or female line. Its stance is closer to the parental system than that of patrilineal followed by Sunni inheritance system in deciding who become the heirs are. The former reckons the relatives from both father and mother while the last only reckons the relatives father as how the Sunni inheritance system decided the heirs who take the residuary of inheritance called ‘aṣabah.

Besides, the equality between male and female heirs in Shiite inheritance system said Fyzee that the equality between them is not able to ignore the political factor within Shiite school. The position of Prophet Muhammad and his two grandsons, Ḥasan and Ḥusayn who were descended from the prophet genealogy through female line, his daughter, Faṭīmah is significant point as other schools assume. Because Ḥasan and Ḥusayn were grandsons of the prophet descended from female line while their positions were authoritative in Shiite school, therefore Shiite school placed the female heirs equal to male ones.[8]

Fyzee’s analysis is not exactly correct since the Shiite school fundamentally respects women more than other schools as Shiite tradition says.

عن علي بن إبراهيم عن على بن محمد القاساني، عن أبي أيوب سليمان بن مقبل المدائيني، عن سليمان بن جعفر الجعفري، عن أبي الحسن الرضا عليه السلام قال: قال رسول الله صلى الله عليه وسلم: إن الله تبارك وتعالى على الإناث أرأف منه على الذكور، وما من رجل يدخل فرحة على امرأة بينه وبينها حرمة إلا فرحه الله تعالى يوم القيامة.[9]

Narrated from ‘Alī ibn Ibrāhīm from ‘Alī ibn Muḥammad al-Qāsānī, from Abī Ayyūb Sulaymān ibn Muqbil al-Madā’inī, from Sulaymān ibn Ja‘far al-Ja‘farī, from Abī al-Ḥasan al-Riḍā peace be upon him said that the prophet God’s blessing and peace be upon him said: “Verily Allah the Blessed and Exalted has mercy towards women more than men and whoever men gives happiness towards woman while the respect is between them, there is no reward for him except Allah the Exalted will rejoice him in the Hereafter”.

 

They also quoted other Shiite tradition as follows:

عن علي بن إبراهيم، عن أبيه، عن النوفلي، عن السكوني، عن أبي عبد الله عليه السلام قال: قال رسول الله صلى الله عليه وسلم: نعم الولد البنات ملطفات مجهزات مونسات مباركات مفليات.[10]

Narrated from ‘Alī ibn Ibrahīm, from his father, from al-Nawfalī, from al-Sawkanī, from Abī ‘Abd Allāh peace be upon him said: The prophet God’s blessing and peace be upon him said: “The most blessing child is daughters who were tempered, readiness, entertaining, and vanquishing”.

[1] Shaikh Muḥammad ibn Ya‘qūb al-Kulaynī, Furū‘ al-Kāfī, Juz 7, (Bayrūt: Manshūrāt al-Fajr, 2007), p. 50.

[2] Shaikh Muḥammad ibn Ya‘qūb al-Kulaynī, Furū‘ al-Kāfī, Juz 7, (Bayrūt: Manshūrāt al-Fajr, 2007), p. 50.

[3] Hammūdah ‘Abd al-‘Aṭī, The Family Structure in Islam, (Indianapolis: American Trust Publications, 1977), p. 265.

[4] Shaikh Muḥammad ibn Ya‘qūb al-Kulaynī, Furū‘ al-Kāfī, Juz 7, (Bayrūt: Manshūrāt al-Fajr, 2007), p. 56.

[5] Shaikh Muḥammad ibn Ya‘qūb al-Kulaynī, Furū‘ al-Kāfī, Juz 7, (Bayrūt: Manshūrāt al-Fajr, 2007), p. 57.

[6] Asaf A.A. Fyzee, Outlines of Muhammadan Law (London: Oxford University Press, 1974), p. 448.

[7] Shaikh Muḥammad ibn Ya‘qūb al-Kulaynī, Furū‘ al-Kāfī, Juz 7, (Bayrūt: Manshūrāt al-Fajr, 2007), p. 56.

[8] Asaf A.A. Fyzee, Outlines of Muhammadan Law (London: Oxford University Press, 1974), p. 448.

[9] Shaikh Muḥammad ibn Ya‘qūb al-Kulaynī, Furū‘ al-Kāfī, Juz 6, (Bayrūt: Manshūrāt al-Fajr, 2007), p. 7.

[10] Shaikh Muḥammad ibn Ya‘qūb al-Kulaynī, Furū‘ al-Kāfī, Juz 6, (Bayrūt: Manshūrāt al-Fajr, 2007), p. 7.

Sharia and Gender Equality

Sharī‘a Defined

As Arabic term, sharī‘ah means a water source or a well where people or cattle drink from. [1]The word sharī‘ah is synonym and has same root that of the word shar‘ meaning to enact laws.[2] Terminologically, Ismā‘īl defines sharī‘a as the teachings revealed by Allah to His servants consisting of theology (‘aqā‘idiyya), deeds (‘amaliyya) and morality (khulūqiyya).[3] While Muṣṭafā Sānū defines sharī‘a as a collection of principles, beliefs, politics, societies, economics, crimes etc. legislated by Allah to manage human beings’ problems privately and socially based on Allah’s Will.[4]

Sharī‘ah from Prophet Adam to Muḥammad principally has common goal. It enjoins to tawḥīd principle, justice, equality, etc. but practically and artificially sharī‘ah revealed to every prophet differs from time to time as it must accommodate the culture and social conditions where and when the prophet sent down to guide his people (ummah).[5]

The differences of teachings sent down to the prophets indicate the existence of evolution (taṭawwur) and flexibility (murūnah) principle of the sharī‘ah. Both principle concern on the evolution of sharī‘ah as its substance differs from Adam to that of Muḥammad. Sharī‘ah of each prophet differs among them to the degree to which sharī‘ah accommodates to social conditions in time when the prophet live. Besides the differences of sharī‘ah are caused by the differences of social conditions, the differences are also caused by the method used by sharī‘ah to change their social conditions in time when and where the prophets live.

There were two roles of religion in relation to social conditions namely models for reality and those of for reality. The first, the religion confirms usage and tradition of society and make over them with new ones colored by Islamic values and the later means that religion implant new model to be followed by people.

Gender Discourse in Islam

The gender terminology in Islam is relatively new as the term was discussed only in the last decades. It does not mean that Islam rejects the term and does not have gender concept. Conceptually, gender construct in Islamic law is relatively develop more advance than other religions. Besides, Islam has Prophet Muḥammad as a great example in exerting the gender ideals.

The discourse of gender in Islamic law is based on the information and teachings given by al-Qur’an and Prophet Hadith, as follows:

  1. The destiny of man and woman

Allah creates the creatures with a measure (qadar) as the verse says:

إِنَّا كُلَّ شَيْءٍ خَلَقْنَاهُ بِقَدَرٍ [القمر: 49]

Indeed, all things We created with predestination.

 

Qadar in this verse means the measurements and characteristics predestined by Allah in creating everything. M. Quraish Shihab interprets the qadar as Allah’s destiny over all creatures.[6] The destiny of man and women in their creation as Allah predestined is as follows:

يَاأَيُّهَا النَّاسُ اتَّقُوا رَبَّكُمُ الَّذِي خَلَقَكُمْ مِنْ نَفْسٍ وَاحِدَةٍ وَخَلَقَ مِنْهَا زَوْجَهَا وَبَثَّ مِنْهُمَا رِجَالًا كَثِيرًا وَنِسَاءً (النساء: 1)

O mankind, fear your Lord, who created you from one soul and created from it its mare and dispersed from both of them many men and women.

 

This verse means that man and women were created from the same type. There are no differences between them since they were created from the same substances. However, there are differences in their biological anatomy as the verse says as follows:

وَلاَ تَتَمَنَّوْاْ مَا فَضَّلَ اللّهُ بِهِ بَعْضَكُمْ عَلَى بَعْضٍ لِّلرِّجَالِ نَصِيبٌ مِّمَّا اكْتَسَبُواْ وَلِلنِّسَاء نَصِيبٌ مِّمَّا اكْتَسَبْنَ وَاسْأَلُواْ اللّهَ مِن فَضْلِهِ إِنَّ اللّهَ كَانَ بِكُلِّ شَيْءٍ عَلِيماً [النساء: 32]

And do not wish for that by which Allah has made some of you exceed others. For men is a share of what they have earned and for women is a share of what they have earned. And ask Allah of his bounty. Indeed Allah is ever, of all things, knowing.

 

Based on this verse, the man and women have the different characteristics. However, the differences are not objects to be opposed each other.

There are many destinies predestined by Allah towards women, as follows:

  • Menstruation as indicated by the verse, as follows:

وَيَسْأَلُونَكَ عَنِ الْمَحِيضِ قُلْ هُوَ أَذًى فَاعْتَزِلُوا النِّسَاءَ فِي الْمَحِيضِ وَلَا تَقْرَبُوهُنَّ حَتَّى يَطْهُرْنَ (البقرة: 222)

And they ask you about menstruation. Say, “It is harm, so keep away from wives during menstruation. And do not approach them until they are pure.

 

  • Pregnancy

وَوَصَّيْنَا الْإِنْسَانَ بِوَالِدَيْهِ حَمَلَتْهُ أُمُّهُ وَهْنًا عَلَى وَهْنٍ وَفِصَالُهُ فِي عَامَيْنِ أَنِ اشْكُرْ لِي وَلِوَالِدَيْكَ إِلَيَّ الْمَصِيرُ(لقمان: 14)

And We have enjoined upon man (care) for his parents. His mother carried him, (increasing her) in weakness upon weakness, and his weaning is in two years. Be grateful to Me and to your parents; to Me is the final destination.

 

  • Breast feeding

وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ (البقرة: 233)

Mother may breastfeed their children two complete years for whoever wishes to complete years for whoever wishes to complete the nursing period.

2. Equality between man and women in the Face of Allah

There are no differences between man and women in their substances as they are created from the same elements. The qualities that differentiate them are their fear of Allah (taqwā) as the verse indicated as follows:

يَا أَيُّهَا النَّاسُ إِنَّا خَلَقْنَاكُم مِّن ذَكَرٍ وَأُنثَى وَجَعَلْنَاكُمْ شُعُوباً وَقَبَائِلَ لِتَعَارَفُوا إِنَّ أَكْرَمَكُمْ عِندَ اللَّهِ أَتْقَاكُمْ إِنَّ اللَّهَ عَلِيمٌ خَبِيرٌ [الحجرات: 13]

O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted.

 

Therefore, Allah does not differentiate man and woman as they have qualities to guide each other. He also equally imposes religious duties to them as said the verse as follows:

وَالْمُؤْمِنُونَ وَالْمُؤْمِنَاتُ بَعْضُهُمْ أَوْلِيَاء بَعْضٍ يَأْمُرُونَ بِالْمَعْرُوفِ وَيَنْهَوْنَ عَنِ الْمُنكَرِ وَيُقِيمُونَ الصَّلاَةَ وَيُؤْتُونَ الزَّكَاةَ وَيُطِيعُونَ اللّهَ وَرَسُولَهُ أُوْلَـئِكَ سَيَرْحَمُهُمُ اللّهُ إِنَّ اللّهَ عَزِيزٌ حَكِيمٌ [التوبة: 71]

The believing man and the believing women are allies of one another. They enjoin what is right and forbid what is wrong and establish prayer and give zakah and obey Allah and His Messenger. Those, Allah will have mercy upon them. Indeed, Allah is Exalted in Might and Wise.

 

Other verse said as follows:

إِنَّ الْمُسْلِمِينَ وَالْمُسْلِمَاتِ وَالْمُؤْمِنِينَ وَالْمُؤْمِنَاتِ وَالْقَانِتِينَ وَالْقَانِتَاتِ وَالصَّادِقِينَ وَالصَّادِقَاتِ وَالصَّابِرِينَ وَالصَّابِرَاتِ وَالْخَاشِعِينَ وَالْخَاشِعَاتِ وَالْمُتَصَدِّقِينَ وَالْمُتَصَدِّقَاتِ وَالصَّائِمِينَ وَالصَّائِمَاتِ وَالْحَافِظِينَ فُرُوجَهُمْ وَالْحَافِظَاتِ وَالذَّاكِرِينَ اللَّهَ كَثِيرًا وَالذَّاكِرَاتِ أَعَدَّ اللَّهُ لَهُمْ مَغْفِرَةً وَأَجْرًا عَظِيمًا (الأحزاب: 35)

Indeed, the Muslim men and Muslim women, the believing men and believing women, the obedient men and obedient women, the truthful men and truthful women, the patient men and patient women, the humble men and humble women, the charitable men and charitable women, the fasting men and fasting women, the men who guard their private parts and the women who do so – for them Allah has prepared forgiveness and a great reward.

3. Equality between husband and wife in their household

The relation between husband and wife in their household of often cites the verse, as follows:

الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاء بِمَا فَضَّلَ اللّهُ بَعْضَهُمْ عَلَى بَعْضٍ وَبِمَا أَنفَقُواْ مِنْ أَمْوَالِهِمْ [النساء: 34]

Men are in charge of women by right of what Allah has given one over the other and what they spend for maintenance from their wealth.

 

The word “qawwāmūn”, said Ibn Manẓūr, means muḥāfaẓah (taking care) and iṣlāḥ (reconciliation or peacemaking),[7] Shaḥrūr comprehended this verse that the qiwāmah is not the men’s monopoly as indicated by the words “bimā faḍḍala Allāh ba‘ḍahum ‘alā ba‘ḍ”. The words mean that qiwāmah is for men and women equally since they have excellences and wealth over others.[8] While Nasaruddin Umar said that since the verse used the word “al-rijāl”, the qiwāmah is equally for men and women because al-rijāl is social sex not biological one.[9] It means that who have excellences and advantages over other, he or she deserves qiwāmah and to be promoted as leader, maintainer, servicer, etc.

Husband and wife in their household have to maintain equality and partnership relation.[10] They must fill their shortages each other since they were created different and each has the shortages. The partnership relation is illustrated eloquently by the verse as follows:

هُنَّ لِبَاسٌ لَكُمْ وَأَنْتُمْ لِبَاسٌ لَهُنَّ  (البقرة: 187)

“They are clothing for you and you are clothing for them.

4. The equality between man and women within social and political realms

In the social and political life, men and women have the same duties and responsibilities to make the Muslim community better and the best as intended by Islamic teachings. The equality between them was indicated by the verse as follows:

وَالْمُؤْمِنُونَ وَالْمُؤْمِنَاتُ بَعْضُهُمْ أَوْلِيَاء بَعْضٍ يَأْمُرُونَ بِالْمَعْرُوفِ وَيَنْهَوْنَ عَنِ الْمُنكَرِ وَيُقِيمُونَ الصَّلاَةَ وَيُؤْتُونَ الزَّكَاةَ وَيُطِيعُونَ اللّهَ وَرَسُولَهُ أُوْلَـئِكَ سَيَرْحَمُهُمُ اللّهُ إِنَّ اللّهَ عَزِيزٌ حَكِيمٌ [التوبة: 71]

The believing man and the believing women are allies of one another. They enjoin what is right and forbid what is wrong and establish prayer and give zakah and obey Allah and His Messenger. Those, Allah will have mercy upon them. Indeed, Allah is Exalted in Might and Wise.

Quraish Shihab extended the meaning “ya’ murūna bi al-ma‘rūf wa yanhawna àn al-munkar” to all activities intended for making Muslim ummah better and critics against the government.[11]

[1]Muḥammad ibn Mukarram ibn Manzhūr al-Ifrīqī al-Mishrî, Lisān al-‘Arab, (Beirut: Dār Ṣādir, t.th.), Vol. 8, p. 175

[2]Hans Wehr, Arabic-English Dictionary, A Dictionary of Modern Written Arabic, JM. Cowan (Editor), (Ithaca, New York: Spoken Language Service, 1976), pp. 465-466

[3] Sya‘bân Muḥammad Ismā‘īl, al-Tashrī‘ al-Islāmī, Maṣādiruh wa Aṭwāruh, (Kairo: Maktabah al-Nahdhah al-Mishriyyah, 1985), h. 7

[4] Quthb Mushthafā Sānū, Mu‘jam Musṭalat Uṣūl al-Fiqh ‘Arabī-Inklīzī,  (Beirut: Dār al-Fikr al-Mu‘āṣṣir, 2000), p. 249

[5] ‘Allāl al-Fāsī, Maqāṣid al-Sharī‘ah al-Islāmiyyah wa Makārimuhā (tt.: Maktabah al-Waḥdah al-Arabiyyah al-Dār al-Bayḍā’, n.y.), p. 20

[6]  M. Quraish Shihab, “Foreword”, in Nasaruddin Umar, Argumen Kesetaraan Jender Perspektif Al-Qur’an (Arguments of Gender Equality: Qur’anic Perspective), (Jakarta: Paramadina, 2001), p. xxix.

[7]Ibn Maẓūr, Lisān al-‘Arab, (Cairo: Dār al-Ma‘ārif, …..), p. 3781.

[8]  Muḥammad Shaḥrūr, Naḥwa Uṣūl Jadīdah li al-Fiqh al-Mar’ah (al-Waṣiyyah, al-Irth, al-Qiwāmah, al-Ta‘aduddiyyah, al-Libās), (Damascus: al-Ahālī li al-Ṭibā‘ah wa al-Nashr wa al-Tawzī‘, 2000), p. 320.

[9]  Nasaruddin Umar, Argumen Kesetaraan Jender Perspektif Al-Qur’an (Arguments of Gender Equality: Qur’anic Perspective), (Jakarta: Paramadina, 2001), pp. 143-172.

[10] Ratna Batara Munti, Perempuan Sebagai Kepala Rumah Tangga, (Jakarta: Lembaga Kajian Agama dan Gender, Perserikatan Solidaritas Perempuan, dan The Asia Foundation, 1999), p. 56.

 

[11] M. Quraish Shihab, Wawasan al-Qur’an; Tafsir Maudhu’i atas Pelbagai Persoalan Umat, (Bandung: Mizan, 1998), Cet. ke-7, h. 315

Shiite Law of Inheritance

  1. The definition of Law of Inheritance

The Arabic term of law of inheritance is irth originated from verb waratha. The word waratha is verbal noun (maṣdar) of verb form waritha – yarithu – wirthah –  wirāthah – wurrāth in which the letter waw was changed into hamzah meaning capital (aṣl) and remainder of something. The word irth, mīrāth and turāth have the same meaning and are intended as something inherited (mawrūth) that have close relation to the word tirkah.[1]

Al-Shāhīd al-Awwal[2] said that mīrāth meant something that someone has as a result of the death of someone else because of the prevailing relation between them whether from blood (nasab) or cause (sabab) relation. Whereas al-Shāhid al-Thānī said that the word mīrāth was derived from the word mawrūth that meant properties left by the inheritor (tirkah) but if the word mīrāth derived from irth meant the right of someone (heir) to the properties as result of the death of someone else (inheritor) because of the prevailing of relation between them whether blood or cause relation as well.

Beside the word irth and mīrāth, there is the word closes in meaning with the two words namely farā’iḍ that is the plural form from the word farīḍah means part, share, portion and allotment decided by Allah namely the six shares explained elaborately in the Quran[3] i.e. half, two-third, one-fourth, one-eighth, one-sixth, and one-third. However, the word irth has broader meaning than that of farīḍah because the first encompasses the material rights and who are the heirs more appropriate to have inheritance right, whereas the later especially encompasses the share of inheritance decided by Allah in the Quran.

  1. Classification of Heirs

Discussion of classification of heirs in Shiite inheritance system in this chapter pertains to the causes of inheritance (asbāb al-mīrāth). Shiite inheritance classifies the causes of inheritance into two; nasab (blood relationship) dan sabab (special case). Nasab is the relation between heirs and inheritor through childbirth (wilādah) while sabab is the relation between heirs and inheritor through with exception of childbirth. It comprises of allegiance (walā’) and matrimony (zawjiyyah).[4] Nasab consists of three classes and every class comprises two groups, as follows:

  1. Class I consist of two groups, namely: a) parents and b) children and lineal descendants how low so ever (h.l.s.)
  2. Class II consists of two groups, namely: a) grandparents how high so ever (h.h.s.) and b) brothers and sisters and their descendants h.l.s.
  3. Class III consists of one group, namely: paternal uncles and aunts of the deceased and of his parents and grandparents h.h.s. and their descendants and maternal uncles and aunts of the deceased and of his parents and grandparents h.h.s. and their descendants.[5]

There are three rules regulate the heirs in Shiite inheritance system, namely:

  1. The heir of the first class prevents that of the next class to inherit. If there is heir of first class, the heirs of second and third class do not inherit altogether. class I excludes Class II and III, similarly Class II excludes Class III, however the group of heirs of every class do not exclude each other. For instance full brother is excluded by daughter because he belongs to class II while daughter belongs to class II.[6]
  2. The closer heirs in each class to the proprietor exclude that of more remote ones but the closer heirs in the certain class do not exclude that of more remote ones of other classes, for instance if the proprietor leaves son and son’s son as heirs, the son exclude the son’s son because they are of the same group. But, if the proprietor leaves father and son’s son, the father do not exclude the son’s son because they are not of the same group even though they are in the same class.
  3. The heir descended from both father and mother excludes that of descended from the father only when they share in the same remoteness to the proprietor.[7]

It needs to bear in mind that the heirs in Shiite inheritance system does not differentiate the heirs whether related to the deceased or proprietor from male lines or female ones in terms of their rights to inherit. Grandsons as well as granddaughters descending from son and daughter as well have the same right of inheritance.

Whereas sabab of allegiance constitutes three kinds, namely walā’ al-‘itq (right of emancipation), walā’ taḍammun al-jarīrah (right of obligation for delicts committed by the inheritor), and walā’ al-imāmah (right of religious leader). Besides, al-Ṭūsī added the right of who make unbelievers became muslim and the right of obligation for paying zakah to slaves he purchased and then emancipated.[8] The sabab of allegiance will inherit in default of the heirs of nasab while the sabab of matrimony consists of husband and wife without their children.

  1. Shares of Heirs

Heirs of nasab and sabab of matrimony can be classified into three groups, as follows:

  1. The heir who does not inherit except as Qur’anic heirs (farḍ) namely mother, husband and wife in default of heirs except imām.[9] And
  2. The heirs who inherit as Quranic heirs at once time and as qarābah[10] at the other. They are father, daughter(s), and sister(s). The father inherit as Quranic heir when children prevail and by means of qarābah in default of them and daughter(s) and sister(s) inherit as Quranic heirs when their brothers prevail i.e. when daughter(s) inherit with son and full sister(s) inherit with full brother and consanguine sister(s) inherit with consanguine brother, they are inherit by means of qarābah and in default of their brothers, they inherit as Quranic heirs.
  3. The heir who only inherits by means of qarābah because the Qur’an does not determine the share for them. They are brother, uncle of male as well as female lines, and grandfather.[11]

The shares of inheritance in Shiite inheritance system consists of two shares, the first is farḍ share, a detailed fragmentation (kasr mu‘ayyan or furūḍ al-muqaddarah ) owned by ṣāḥib al-farḍ (the sharer) or al-wārith bi al-farḍ and the second is the share that is not detailed by al-Qur’an and the owner of the share called al-wārith bi al-qarābah. The detailed shares consist of six shares, namely half (1/2), two-third (2/3), one-third (1/3), one-sixth (1/6), one-fourth (1/4), and one-eighth (1/8). The elaboration of each share is as follows.

  1. The one-second or half (1/2) share is for four heirs, namely:
  • One daughter in failing of son(s).
  • Husband in failing of the deceased’s children.
  • One sister of both father and mother (shaqīqah) in failing of her brother(s).
  • One sister descended from the same father only (li abb) and in failing of her brother(s).
  1. The two-third (2/3) share is for three heirs, namely:
  • Two or more daughters in failing of son(s).
  • Two or more sister descended from same father and mother (shaqīqah) and in failing of their brother(s).
  • Two or more sister descended from father only (li abb) and in failing of their brother(s).
  1. One-third (1/3) share is for two heirs, namely:
  • Mother when the deceased does not have children.
  • Two or more sisters or brothers or mixture of sister and brother descended from mother only.
  1. One-sixth (1/6) share is for three heirs, namely:
  • Mother when the deceased has children.
  • Father when the deceased has children.
  • Mother when the deceased has no children but the deceased’s father still alive.[12]
  1. One-fourth (1/4)
  2. One-eighth (1/8)

The detail of shares of Qur’anic and qarabah heirs are as follows:

No HEIRS SHARE CLASS EXPLANATION
1. Husband 1/2 All In default of children
1/4 In prevailing of children
2. Wife 1/4 All In default of children
1/8 In prevailing of children
3. Father Q I In default of children
1/6 In prevailing of children
4. Mother 1/3 I In default of children
1/6 In prevailing of children
5. Son Q I Take residuary left by Quranic heirs
6. Daughter 1/2 I One daughter
2/3 Two or more daughters
7. Son and Daughter Q I They take 2:1 respectively
8. Grandfather and Grandmother Maternal side: 1/3

 

II Grandfather and grandmother of maternal side take equally
9. Grandfather and Grandmother Paternal side: 2/3 II Grandfather and grandmother of paternal side take 2:1 respectively.
10. Full brother Q II Take residuary left by Quranic heirs
11. Full sister 1/2 II One full sister
2/3 Two or more sisters
12. Full brother and sister Q II They take 2:1 respectively
13. Consanguine Brother Q II Take residuary left by Quranic heirs
14. Consanguine Sister 1/2 II One consanguine sister
2/3 Two or more consanguine sisters
15. Consanguine Brother and Sister Q II They take 2:1 respectively
16. Uterine Brother and sister 1/6 II One uterine brother or sister
1/3 Two or more uterine brother or sister. Uterine brother and sister share equally.
17. Son and daughter of Full or ConsanguineBrother and Sister Those of Brother II The son and daughter of them take 2:1 respectively
Those of sister II The Son and daughter of the share equally
18. Son and daughter of uterine brother and sister II The son and daughter share equally.
19. Grandfather, Grandmother, and collaterals Paternal side II Grandfather and grandmother are counted as full or consanguine brother
Maternal side II Grandfather and grandmother are counted as uterine brother or sister
20. Uncle and Aunt Paternal side: 2/3 or

all: in default of those of maternal side

IIIA Uncle and Aunt take as if they are brother and sister, as follows: a) 1/3 or 1/6 to be assigned to uterine uncles and aunts equally, and b) the reminder 2/3 or 5/6 to be assigned among full (consanguine) uncles and aunts 2:1 respectively.
Maternal Side: 1/3 or

all: in default of those of paternal side

IIIA Uncle and Aunt take as if they are brother and sister, as follows: a) 1/3 or 1/6 to be assigned to uterine uncles and aunts equally, and b) the reminder 2/3 or 5/6 to be assigned among full (consanguine) uncles and aunts equally.
21. Descendant of Uncle and Aunt Paternal Side IIIB
Maternal Side IIIB
22. Uncle and Aunts of the Deceased Paternal Side IIIC
Maternal Side IIIC
23. Descendant of Uncle and Aunts of the Deceased Paternal Side IIID
Maternal Side IIID

 

  1. The Bar of Inheritance (Mawāni‘ al-Irth)

There are many kinds of impediments of inheritance even counted to twenty kinds. But the discussion is focused into three popular impediments of inheritance namely: unbeliever (kufr), homicide (qatl) and slavery (riqq). Unbeliever is the man who leave his believe and faith named Islām. Based on this, dhimmī, ḥarbī, and murtad[13] and other faiths other than Islam do not inherit from their Muslim inheritor but conversely, Muslim can inherit from their non-Muslim inheritor.

[1] Mu’assasah Dā’irah Ma‘ārif al-Fiqh al-Isl amī, Mawsū‘ah al-Fiqh al-Islāmī Ṭabq li Madhhab Ahl al-Bayt,  Vol. 9, (Qum: Mu’assasah Dā’irah Ma‘ārif al-Fiqh al-Isl amī , 2005), p. 9.

[2] He was Abū ‘Abd Allāh Shams al-Dīn Muḥammad ibn Makkī al-‘Āmilī, a recognized scholar of Islamic law (faqīh) in Shiite school. He was born at Jazīn, a mountain ‘Āmil district southern of Lebanon in 760 Hijri Era. See al-Shahīd al-Awwal, Muḥammad ibn Makkī, al-Durrah al-Bāhirah min al-Aṣdāf al-Ṭāhirah al-Mansub ilā al-Shahīd al-Awwal. ‘Abd al-Hādī al-Mas‘ūdī (trans.) (Qum: Intishārāt Zā’ir, 1379 h.e.), pp. 9-10.

[3] Mu’assasah Dā’irah Ma‘ārif al-Fiqh al-Isl amī, Mawsū‘ah al-Fiqh al-Islāmī Ṭabq li Madhhab Ahl al-Bayt,  Vol. 9, (Qum: Mu’assasah Dā’irah Ma‘ārif al-Fiqh al-Isl amī , 2005), p. 10.

[4] Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), p. 7.

[5] Husband and wife share across the classes and there are no heirs can exclude them to inherit, see Ayat Allāh al-‘Uẓmā al-Sayyid Mūsā al-Ḥusaynī al-Zanjānī, al-Masā’il al-Shar‘iyyah, (Qum: Mu’assasah Nashr al-Faqāhah, 1428H), p. 637 and see Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 1974), 442 and also see Abū al-Qāsim Najm al-Dīn Ja‘far ibn al-Ḥasan, Sharā’i‘ al-Islām fī Masā’il al-Ḥalāl wa al-Ḥarām, Vol. 3 and 4, (Bayrūt: Dār al-Qāri’, 2004), 261.

[6] Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), p. 7 And see Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 1974), 442.

[7] Ayat Allāh al-‘Uẓmā al-Sayyid Mūsā al-Ḥusaynī al-Zanjānī, al-Masā’il al-Shar‘iyyah, (Qum: Mu’assasah Nashr al-Faqāhah, 1428H), pp. 637-8.

[8] Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), p. 8.

[9] There are different opinion about their right to the return of residue (radd), al-Najafī says that wife is excuded from the return (radd) forever. But wife of sabab and mother of nasab have possibility to get the return. See Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), p. 8. Fyzee says that neither husband nor wife is entitled to the return as long as there are any other heirs. But if the husband in the only surviving heir, he inherits the whole properties. In the case of widow, however, she also inherits the return as the husband does if she the only surviving heir in the contemporary fatwa. See Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 1974), 461.

[10] Qarābah means the heirs who exhaust the remainder of properties left by Qur’anic heirs. This term is parallel with the term ‘aṣabah of Sunnite inheritance system however the qarābah consists of ‘aṣābah (consanguine) and dhawī al-arḥām (uterine) heirs as well.

[11] Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), pp. 10-11 and also see Abū al-Qāsim Najm al-Dīn Ja‘far ibn al-Ḥasan, Sharā’i‘ al-Islām fī Masā’il al-Ḥalāl wa al-Ḥarām, Vol. 3 and 4, (Bayrūt: Dār al-Qāri’, 2004), 261-262.

[12] When the deceased has no children and the mother shares inheritance with the deceased’s father, the mother has two possibilities of shares. The first, when there are the heirs who exclude the mother to get maximal share (ḥājib nuqṣān), namely two brothers, or four sisters, and or one brother and two sisters descended from the same father and mother or only father, the mother takes one-sixth (1/6). The second, when there is no ḥājib nuqṣān, the mother takes one-third (1/3). The father takes residue of the two possibilities; five-sixth (5/6) or two-third (2/3). See Ayat Allāh al-‘Uẓmā al-Sayyid Mūsā al-Ḥusaynī al-Zanjānī, al-Masā’il al-Shar‘iyyah, (Qum: Mu’assasah Nashr al-Faqāhah, 1428H),  pp. 643-4.

[13] Dhimmah is the term used to designate the sort of indefinitely renewed contract through which the Muslim community accords hospitality and protection to members of other revealed religions. The beneficiaries of dhimmah called dhimmī or ahl al-dhimmah, see CL. Cahen, “Dhimma” in The Encyclopedia of Islam, Vol. II (C-G), B. Lewis, CH. Pellat and J. Schacht (eds) (Leiden: E.J. Brill, 1991), p. 227.

Islamic Law: Between Sharia, Fiqh and Fatwa

Islamic law which is called either fiqh, shariah or fatwa become an interesting topic in contemporary discourses throughout the word. The trigger of this is the implementation of Islamic law by ISIS (Islamic State of Iraq and Syiria), a borderless Islamic State founded by Abdurrahman al-Baghdadi, that adopts strict interpretation of al-Qur’an and hadith in its implementation.
It is important to differentiate between sharia, fiqh and fatwa. The first is Islamic teachings embodied in both al-Quran and hadith, while the second and the last are merely interpretation and understanding of human being towards al-Quran and hadith. The first has an absolute.truth while the last two have a relative one. Fiqh and fatwa, therefore are subject of mistake because they are a products of human being who do not free from sins in their deeds and thoughts, while shariah is free from false because it is a procducts of Allah and Prophet Muhammad who was free from mistake (ma’sum).
Sharia, a divinely ordained teachings, principally is an untouchable Islamic source by human tought, it presides at Allah’s domain and no human beings can precisely understand what Allah means on the teachings embodied in sharia. The sharia that is understood and interpreted by human reason is not sharia any more but it become fiqh or fatwa those are subject to mistake and false.
The sharia implemented by ISIS is a merely strict understand and interpretation they employ towards al-Quran and hadith. It is not sharia but fiqh or fatwa, fallible understamd and interpretation. Thus, ISIS can not claim that their interpretion is the only truth one and exclude other interpretations as false and mistake because the absolute truth is only Allah and Prophet Muhammad’s domain. If they claim that their interpretation is the only truth, thus they assume that their interpretation is absolute and it means that they equalize themselves with Allah and Prophet Muhammad.
It must be noted that the sharia implementated by ISIS degraded Islam as a religion of peace. It decreased the role of Prophet Muhammad as a mercy and blessing (rahmah) for all human beings. Islamic teachings do not differentiate human beings basing on religion, colour, origin, language, sex etc. All human beings are equal and same in Allah’ s eyes. The only thing differentiate them is their fear towards Allah (taqwa).
Al-Quran, said Shahrur, was revealed not only for Hijazi people and human beings lived in seventh century but for all human beings all over the world and for them living from seventh century to the end of the day. Al-Quran is guidence for them to face and solve social, religious, and spiritual problems facing every epoch of human life. It was a miracle of al-Quran that it was always appropriate to all social conditions.
To make al-Quran suitable for all epoches and human races, Islamic scholars have to classify Quranic verses into particular, specific or historical and universal ones. The first are the verses that are influenced by social conditions when they had been revealed, while the second is the verses revealed free from social factors. The universal verses mean that they do not contradict to the human right principles as had been declared in the Universal Declaration of Human Rights by United Nations.
Regarding the first kind of Quranic verses, we have to look for the context in time when they had been revealed. The social condition ceased to the revelation of the verses should be included in understanding the verses. We must look for the spirit behind the revelation of the verses and we have to universalize the spirit behind the revelation of particular Quranic verses.
While the second kind of Quranic verses, universal Quranic verses, we do not need great efforts to comprehend their meanings as they fit already to the universal principles. Therefore, the kind of verses we can implement the real meanings of them in solving many social problems within society. It must be born in mind that universal verses should be prioritized over the particular verses and employed as the parameter for particular ones.

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