Bequest and Inheritance Laws
The tradition al law of succession has its roots in the cultural and political milieu of the first two to three centuries of Islamic history.
It has been characterized by a dominance of male centered perspectives which created a patriarchal inheritance law and which fueled the spirit of tribalism and clan-ideology that controlled the way wealth was distributed among the different sections of Arab-Muslim society. Laws of inheritance were formulated by deliberately conflating the strict demarcation between family and state, leading to a situation where political succession (of dynastic rule) was secured by formulating inheritance laws that maintained the political interests of the ruling families.
Intellectually, inheritance laws were issued purely on the basis of the four arithmetic operations which, given the complexity of the matter, were highly insufficient and produced very crude and over simplified solutions.
Today, we can use the insights gained from further developments in the geometrical sciences, benefit from Newton’s and Descartes’ theories, and reorganize the distribution of wealth by inheritance laws. We should not repeat the unbelievable mistakes of earlier fiqh and formulate a law of succession purely on the basis of a single hadith or, as has been often the case, overrule the injunctions of the Book by an unconvincing reference to several weak and unauthentic hadiths.
In doing this, we have to tackle the tendency in current jurisprudence to ignore the priority of bequest stipulations over inheritance rules, as explicitly stated by the Book.
We need to combat the jurisdictional practice of abrogating clear Qur’anic rules by the citation of hadiths that were brought into circulation by parties who profited from military expeditions and the resulting booty. We need to question the widespread belief that ‘no testament shall invalidate an heir’s right’ which, basically, disrespects a proper bequest and unfairly prioritizes strict inheritance rules.
Finally, we need to deal with the widespread exclusion of orphaned grandchildren from inheriting from their grandparents—in spite of the fact that this is explicitly mentioned in the verses of inheritance, while other people, for example, uncles and aunts, are included as inheritors who are not mentioned in the text. We will have to introduce different sets of allocations for everyone who is qualified for inheritance and we will do this by departing from basic arithmetical operations because they only result in either surpluses, a convoluted system of returns and redistributions, or shortages which provoke long legal battles by those who feel cheated.
Considering the massive exegetical problems which the fuqaha” tend to either ignore or belittle, and the current attempts to implement a uniform Islamic law of succession, the subject of inheritance must be seen as a very sensitive topic: the distribution of wealth from the one generation to the next. We have carried out a thorough rereading of all relevant verses of the Book through the prism of our theory of limits. We have started our study by distinguishing between the general nature of inheritance rules and the specific nature of bequests, by which we aim to reverse current practice and restore Allah’s preference for bequests over inheritance rules.
The Difference between Specified and Unspecified Shares
Let us first explore the difference between the two Arabic terms for ‘share’, حظ and نصيب. The first term, حظ, refers to shares whose exact amount is not specified but only defined in a very general manner, whereas the second term, نصيب, usually connotes shares of an exactly identifiable quantity.
If parliament, for example, passes a law whose aim is to improve life in general we would expect the benefits of this new law to be distributed to all social classes in society, even though one class, group, or region may profit from it more than others.
A new law to improve pedestrians’ access to local shops on High Streets, for example, may give some shopkeepers, whose shops are close to the new crossings and traffic lights, greater benefits than others whose shops lay at a greater distance from the new crossings and are therefore less accessible.
But since the new law was introduced to improve access to local shops in general, not for the benefit of any particular, individual shops, it is bound to create bigger and smaller shares of benefit. These shares, who’s exact amount cannot be pre-calculated, are known as ‘unspecified shares’ (حظ).
If, in contrast, a house owner plans to extend his house or to improve its access by building a ramp for his relative’s wheelchair or by having a new back door installed to be used by his son’s family who lives next door, the benefits gained will be distributed in shares that the owner of the house has precisely calculated; that is why they are predetermined.
These shares are called ‘specified shares’ (نصيب) which should never be confused with the first category of ‘unspecified shares’ (hadh). The term nasib is used to designate profit shares in business, shares held by shareholders of big companies or the tax contributions paid into the treasury (نصب الزكاة). These are all shares known and specified in each individual case by those who are involved in the financial transactions.
In the case of unspecified shares, however, the individual has neither the power nor the authority to change the amount payable; it is ‘beyond his or her reach’.
If we apply this to the question of bequests and inheritance, it would be correct to say that the latter is unspecified whereas the former is specified. On the one hand, Allah ordered a system of distribution of wealth that is universally applicable to everyone worldwide and where the individual share is given in the Book in very general terms (e.g., one-half or one-third of the legacy).
On the other hand, Allah also prescribed bequests by which people can determine the distribution of their wealth individually, and by which they can specify the exact amount of individual shares. Whereas bequests are based on individual circumstances, the laws of inheritance are defined by much more abstract criteria for which, we propose, the application of analytical geometry, mathematical analysis, and set theory— in addition to basic arithmetics—is absolutely vital.
We will see that the Book contains rather rigorous legal injunctions by which Allah defined the distribution of inheritance according to blood relationship and degrees of kinship.
For bequests, however, no such connection to kinship is prescribed. It is up to the testator to determine the beneficiaries of his or her legacy, be they close relatives or unrelated acquaintances, welfare institutions, charity organizations, cultural projects, or others.
After reading the relevant verses in the Book, it is apparent that a greater number of people may benefit from bequests than from inheritance laws. Inheritance laws only consider those eligible who are next of kin within an extended family while bequests are not and therefore reach more people in society.
A bequest regulates the distribution of money or property according to the will of a testator who will define the amount of each share to be bequeathed (quantity) as well as the method of distribution (quality).
A great variety of different people and institutions which do not belong to the family of the testator may receive bequests, and for this reason bequests have more weight in the Book than inheritance laws. Since bequests are not confined by fixed rules, testators enjoy great flexibility, thus may distribute their wealth evenly or unevenly and consider heirs to whom they feel personally obliged. Bequests therefore reflect the personal circumstances of the testator accurately.
The outcome is often an uneven, or asymmetrical distribution of wealth, and each bequest will differ considerably from one to the next since objective reality is as complex as the human relationships we establish during our lifetimes.
Inheritance laws, in contrast, are meant to achieve a more balanced, symmetric distribution of money and property. Each share is calculated according to the relationship of the heir to the deceased (father, mother, child, husband, wife, brother, sister, and such).
While imbalance characterizes inheritance through bequests, balanced distribution is a characteristic of general inheritance laws. Balance or imbalance, symmetry or asymmetry—this polarity or duality expresses the dialectical relationship between bequests and inheritance laws.
Imbalance reflects the diversity, curvature, and plurality of human relationships in human society, while balance reflects Allah’s will (and His order of straightness). But since unbalanced distribution of wealth mirrors the unbalanced relationships of our daily lives much better, the Book gives bequest rules a more prominent place than inheritance laws.
We apologize for skipping over inheritance laws section due to the limited resources and experience in editing videos.
But you can read the whole book (The Quran Morality and Critical Reason)
The essential Muhammad shahrur