One of the common perceptions about Islam is that it dictates a traditional system of Islamic Law (“sharia”) which discriminates against women by allowing them to inherit only half as much as men. In fact, the Qur’anic position on these traditional laws is quite debatable; examination of the Qur’anic verses in question will allow us to decide whether or not the inferior position of women’s inheritance in traditional Islamic law is justified.
The traditional view of inheritance in Islamic law comes from the following verses:
Allah enjoins you about [the share of inheritance of] your children: A male’s share shall equal that of two females (Qur’an 4:11); If there are many brothers and sisters, the share of each male should be that of two females. (Qur’an 4:176)
While the above seem clear enough, and were taken as the basis for the inheritance laws laid down by the traditional schools of Islamic law, there is on the other hand the fact that the Qur’an also tells all Muslims to make a will specifying inheritance of their assets.
Prescribed for you, when any of you is visited by death, and he leaves behind some goods, is to make testament in favour of his parents and kinsmen honourably — an obligation on the God-fearing. Then if any man changes it after hearing it, the sin shall rest upon those who change it; surely God is all-hearing, all-knowing.
But if any man fears injustice or sin from one making testament, and so makes things right between them, then sin shall not rest upon him; surely God is all-forgiving, all-compassionate. (Qur’an 2:180-182)
The first verse makes it obligatory for all Muslims to make a will determining the distribution of their assets after their death. The second verse emphasises the importance of this will by saying that no one has a right to falsify it. The third verse again emphasises the importance of the will by saying that any claimant who feels they have been unjustly dealt with should resolve the injustice by discussion with the maker of the will before their death. Altogether, the three verses make it clear that wills are integral to the Qur’anic view of inheritance; this acknowledges the general principle that every person is best suited to determine their obligations to their heirs and the fate of their assets.
The importance of making a will is also underlined by the Qur’anic specification that the will must be made in the presence of two witnesses:
O believers, the testimony between you when any of you is visited by death, at the bequeathing, shall be two men of equity among you; or two others of another folk, if you are journeying in the land and the affliction of death befalls you. Them you shall detain after the prayer, and they shall swear by God, if you are doubtful: “We will not sell it for a price, even though it were a near kinsman, nor will we hide the testimony of God, for then we would surely be among the sinful.” (Qur’an 5:105)
The question now arises, what is the Qur’anic position on inheritance? Is inheritance to happen according to the specified formulae, in which case women will inherit half as much, or according to an individually decided will, in which case no formulae apply? There is an obvious contradiction between these two alternatives.To resolve these differences it is important to look at the context in which the various Qur’anic inheritance verses were revealed. The verses supporting individual disposal of assets through a will were likely revealed in the early Medinan period, in which the Prophet was called upon to establish basic rules according to which the early Muslim community in Medina would run. However, the more involved inheritance formulae were revealed after the battle of Uhud, in which many Muslims were killed; quite likely many of them had made no will, thus resulting in a chaotic situation regarding the disposal of their assets among many claimants. The traditional schools of law generally held that the earlier Qur’anic requirement of making a will had been overruled by the later inheritance formulae (the term used by legal scholars to describe this was “naskh” or abrogation).
But the question arises as to why we today should continue to adhere to a set of inheritance formulae (coincidentally favouring males) which seemingly were revealed as an emergency measure following a major disaster (the unexpected death of many Muslims at Uhud). Common sense should make us realise that Qur’anic rulings based on general, universally applicable principles are likely to be the ones which are still applicable in modern times; as opposed to the verses which were obviously revealed in very specific situations of the early Muslim community, and likely were never intended to be applied beyond those situations.
In the case of inheritance, there are two visibly different guidelines given in the Qur’an. The first supports the general principle, which should be applicable at all times, of each individual’s right and duty to determine the fate of their own assets after death. The other simply provides a quick formula to distribute assets after a disaster such as Uhud where many may have been killed without leaving wills. Perhaps the latter inheritance formulae could still be applicable today in situations such as war or natural disasters which kill many people unexpectedly before they have made a formal will, but there is no reason to support these formulae as a general case. Traditional Muslim scholars always made the assumption that inheritance formulae overrule the rights of individual wills; but this was a simplistic judgement on their part, because the inheritance formulae could simply be meant for the special case where there are no wills.
If the inheritance formulae are indeed meant to be a special legal provision reserved for war and natural disasters, then the general Islamic ruling on inheritance which remains is the Qur’anic insistence that everyone make wills and dispose of their assets fairly and as they see fit. If such an interpretation of the Qur’anic verses were accepted today, then there would be no further general use of the gender-biased interitance laws which are now practiced in some Muslim countries.
Zeeshan Hasan holds a Master of Theological Studies degree from Harvard Divinity School, and is author of the www.liberalislam.net website. This article originally appeared in the Daily Star (Bangladesh).