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.

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