Inheritance Rights in Islam: Islamic Policies in Muslim and Secular States, Legal Systems and Media

Inheritance Rights in Islam: Islamic Policies in Muslim and Secular States, Legal Systems and Media April 17, 2012

During the past week, inheritance according to the precepts of Shari’ah was a hot topic around the world, from Australia and Pakistan to Tunisia and Malaysia. An overview of the system is available in this article, although, as always, there is much diversity both in specific understandings of inheritance laws and in broader understandings of what “Shari’ah” is.  A few days ago, Jamila Hussain wrote an opinion piece in the Sydney Morning Herald, discussing issues of equity vs. equality in inheritance laws, while attempting to explain the complex distribution system in Islam. She pointed out that it is easy to forget “that equality for women is quite a modern development.” While discussing Pakistani laws and recent amendments, Hafeezullah Ishaq provided us with an overview of women’s inheritance rights in Pakistan and the challenges they face.

On the Tunisian side, Sayyed Al-Firjani (senior member of the Ennahda Movement) answered some questions regarding the political situation in Tunisia and fleshed out some of the challenges in legal matters such as placing freedom before Shari’ah and supporting the banning of polygamy while endorsing the inheritance system. In Malaysia, Ratna Osman presented an opinion article dealing with the questions arising from being a Muslim woman and being bounded by specific legal conventions such as Shari’ah’s economic order and inheritance rules.

Although the issue of inheritance in Islam is often deemed a matter of theological debate, it is sometimes cited as one of the (many?) ways in which Muslim women are oppressed by their own religion (for an example, see here). It has also being discussed as a matter of conflict with secular law and it has been implicitly rejected by the UN Women in their Equality Rights in Inheritance section. While some Muslims often try to defend the inheritance system in Islam (here and here), few Muslim women have also challenged it (here and here).

The fact that Islamic inheritance laws have recently been making the news around the world is interesting for a couple of reasons. First, it highlights the issues arising from Muslim immigration to the Western world and the relationship between religion and the state. In this sense, religious law seems to intermingle with a discourse on religious freedom and contest the secular state in issues of freedom, gender equality and the rule of secular law. Second, it throws into sharp focus the fact that women’s place in Islam, from any perspective, is still central to both secular and religious discourses.

Whereas some attempts to move towards gender equality in terms of financial distribution in Islamic societies have been made, there have been claims that some societies, including women,  resist such a change just like in the West some communities reject the state’s intervention in matters of inheritance. Nonetheless, Muslims are not a homogenous group and some Muslim women have challenged the distributive system. The example of Fatma Omari, who brought her case to court in Australia, attempting to get the same inheritance as her brother, opens up the floor for a debate on what is the state’s appropriate role when it comes to issues of religious law and therefore religious freedom.

It also poses the question on the function of the secular state in guaranteeing gender equality and Muslim women’s own role in shaping gender equality in secular and Islamic law. Is this a “women’s issue”? or is it a “religious” one? Or is it perhaps both? Even when writers like Jamila Hussain and Hafeezullah Ishaq attempt to show that the inheritance system could be fair for women as is, if the rules of Shari’ah are respected, there are still questions on how to guarantee this fairness in real life. Furthermore, either discourse, supporting the inheritance system or rejecting it, seems to justify particular ideas of what gender equality looks like. This further demonstrates that even when it comes to “women’s issues,” Muslim women have very different ideas. Similarly, much of the discussion surrounding inheritance, and perhaps any kind of economic debate in Islam, lacks inclusion of other minority groups such as the LGTBQ community.

At this point then it is important to ask what is the most appropriate forum to debate inheritance laws and gender equality (and not only for heterosexual men and women)? Is this purely a theological issue concerning solely Islamic scholars? And how is it possible to make room for different communities to play a role – particularly given that gender equality means different things to different people?

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