Concepts and arguments related to inheritance are in many respects so finely detailed and entangled that it is difficult to keep in mind the general principles and goals of inheritance laws and customs in Islam. These principles and goals are, as we should expect, consistent with the laws and practices related to other domains of being Muslim, personally and socially.
As for inheritance, the core matters are the legal duty of an owner of property to respect family relations, whatever his or her personal feelings or preferences about individual family members, and his or her legal duty to the society as a whole to accept that control of property is utterly severed by death, and all of what he or she formerly controlled must, with a measure of exception, be divided up in proportions set out in the Book of Allah and the Sunnah of His Messenger (salla-llahu ‘alayhi wa-sallam)). In very broad terms, we can say that the inheritance laws of Islam are oriented to respecting the rights of family relations while also enabling wealth to circulate in the society rather than concentrate. The measure of exception, recognised in principle by all schools, is that an owner of property may, prior to his or her decease, allocate one-third (and no more) of the property according to his or her personal preference, while the rest may only be divided according to the determination of Qur’an and Sunnah.
I do not think there is any need to explain the rationale behind the emphasis on respecting family ties. But I think there is a need to explain the rationale of property. What is the point of property if it is not, as in other legal traditions, an absolute right? And if, in Islamic tradition, ownership is not absolute, why the exception? Why is not the whole property subject to the religious provisions regulating its division?
We can find the answer if we approach this question from the structure of obligations elsewhere in the tradition. Consider, for example, the legal obligations of shahadah, salah, zakah, sawm, hajj. Alongside each of these mandatory duties the community strongly encourages the voluntary, sometimes called supererogatory, acts of the same form. Fasting is not restricted to the month of Ramadan: the best among us fast every Monday and Thursday, year round. Hajj is restricted to a particular time of year, but umrah is not so restricted: the most fortunate among us save up and hope to do several umrahs in their lifetime. Zakah, when properly implemented is a state-administered tax, typically at a fixed point in the calendar, but sadaqah is not restricted: the best among us do sadaqah all the time in all sorts of currency, not only with the wealth they own but other matters under their control, such as with their quality of attention (so they listen patiently and courteously when someone is boring or rude) or with their mood (so they strive to meet others with the manners appropriate to their circumstances), and so on. As for the voluntary efforts in the form of salah, these are well-known; their conclusion or reward, alike for the best and the worst of us, is du‘a, the heart opening out in need before its Creator. The voluntary counterpart of the utterance of the shahadah is the remembrance of Allah or dhikr, formal or informal. The shahadah is rehearsed during the salah, and before that when hearing or calling the call to prayer: the best of us have the shahadah in mind and on our lips when doing wudu’ or any good deed, as a form of orientation or dedication of the deed to Allah, and it is almost always complemented by the prayer of salutation and blessing on Allah’s Messenger.
Across each and all of these pillars of Islam, we recognize a common pattern of linkage between the mandatory and the voluntary, the minimum requirement and the unlimited effort, the uttered and the enacted, the effort in the mind and heart and the effort of verbal or physical exertion. So these duties come to be embedded in both our bodily and mental being, and they are expressed both in solitude and in company. To explain what this linkage is for, l will look more closely at the zakah and sadaqah pairing. I pick this pair because it relates directly to the issue of property.
If someone is, according to their means, doing sadaqah, what is their need for zakah? Why a mandatory tax, if the person is already ready to give and giving? This question comes into people’s minds because they often misunderstand zakah as being motivated by the need to alleviate the poverty of others in the neighbourhood. That is indeed a good way for a community to spend the funds that accrue by the collection of zakah. But the alleviation of poverty is not, strictly speaking, the purpose of zakah, it is a side-benefit, something that makes it more appealing. (By analogy, the good taste of food is a side-benefit, making the effort to fulfil the purpose of nutrition more appealing.) The proper function of zakah is a public demand on every liable adult that he or she break the hold that their possessions have upon them. Just as fasting enables us to discipline the appetite for food and drink, so zakah enables us to discipline the tendency to cling to what we have worked for or otherwise come to own and hold as ‘ours’.
When someone accepts that zakah is a legitimate demand, a law from Allah and His Messenger, it functions to disable the hold of one’s possessions on one’s heart. This is liberating, and opens the heart for sadaqah. For the recipients of zakah similarly, their hearts are opened for sadaqah, though they can (most likely) only practise it in currencies (as I mentioned above) other than financial wealth.
Because zakah is mandatory and public, it extends the disciplining of the tendency to cling to what we own, to the society as a whole. It becomes a characteristic of the society, not just a characteristic of specially devout individuals within it. This is evident in the formal categories of the recipients of zakah. The beneficence of zakah is that slaves, debtors, captives, new-comers to Islam who have lost their standing in their former society, and the impoverished among Muslims and non-Muslims, are affirmed as belonging within the Islamic jurisdiction, affirmed as being part of the ummah’s care and concern.
From what I have just said, the key take-away is that zakah improves the owner’s agency, his or her control, over what they own. They are not mastered by their possessions, but truly the masters of them. This argument can be adapted for each of the other pillars of Islam. Agency is not real if there are not real means by which, and real space within which, the person can exercise it. The voluntary or additional elements of the acts of worship are examples of explicitly personal agency. In each case this personal agency is enabled and oriented by the mandatory or obligatory elements supported by the laws of the land or by social norms and conventions.
Property, possessions constitute the real means or real space whereby the possessor can implement his or her personal agency. Agency is a vital need of every living creature – the absence of it, seen in zoo animals and in models of slavery practised by the Western powers in the past, leads over time to deep lethargy and some degree of incapacity for self-responsible action. Under Islamic law, slaves are allowed to hold property (some even had slaves of their own), to earn wealth and to buy their freedom. Emancipation of slaves is a major virtue, and an important method of kaffarah or effacing of one’s sin; sharing in the slaves’ tasks, eating with them, highly commended in the Sunnah, contribute to social recognition of the personal dignity of slaves. In theory, slaves could take masters to court for abuses. Another mark of agency and its relevance to personal dignity is that Allah commands that if a believer wants to marry a believing slave-woman, he should propose openly and consult/inform her people in a decent manner.
Given the centrality of property to the partial or full exercise of agency, we cannot be surprised that the rights of women to earn wealth, or to be given and hold, and freely dispose, property are affirmed in Islamic law. The centrality of agency to personal dignity is affirmed by Allah where he exhorts believers not to ask for the dower to be returned if a marriage is annulled, even though strictly they do have a right for it to be returned. And as we shall see in what follows, women must be given their allotted shares of a deceased relation’s wealth, including a relation by marriage, namely her husband.
The right of personal property has to be real for personal agency to be real. That is why, despite the self-evident fact that all semblances and realities of control of property are utterly severed by death, the owner of property retains full authority to specify, for one-third of his or her wealth, who the inheritor(s) of that third shall be. This allows the owner to make adjustments in the division of property in favour of those he deems in greater need, or more likely to use the inheritance more wisely. As for the main part of the wealth of the deceased, it falls under the need of society to prevent the consolidation and concentration of wealth.
In sum, property is recognised in order to make personal agency real. As for agency, it is the basis of responsibility, which in turn is the basis of the judgement that human beings cannot evade in the hereafter, where they are fully informed of the meaning and consequence of all their thoughts, feelings, deeds, realised or unrealised intentions, and their consequences, nothing of which can in the least be amended. In the hereafter human beings must face that burden of information entirely alone: all relations of property, of family, of alliance or friendship, even the relation of the body and soul, are cut away. The laws of inheritance are an important part of the guidance that warns us about our rights and duties concerning how we dispose our wealth in this world. That guidance reminds us of the fact that we are both bound to lose all of it and that, in this life, we really have agency and responsibility with that wealth. In the particulars of how our wealth should be divided up after death, we have a strong indication as to the main priorities we should consider, before death comes, as to how and for whose benefit we should hold and spend our wealth.
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Inheritance Law: Based on the Text Al-Sirajiyyah
A 2-day short course with Shaykh Mohammad Akram Nadwi (Official)
About the Course:
This seminar will go through the laws of inheritance according to the Hanafi madhhab. The laws of inheritance impact all Muslims and it is essential for students of knowledge in particular to understand this area of Islamic law in some depth.
The seminar will be based on ‘Al-Siraj fi al-Mirath’ by Shaykh Siraj al-Din Muhammad ibn Muhammad Sajawandi and will cover the major subject areas that often arise in inheritance law.
Key Information:
Study Mode: LIVE Online
Dates: Sat 16th Dec and Sun 17th Dec 2023
Time: 10am – 6pm UK Time
Duration: 2 days
Register: https://alsalam.ac.uk/inheritance-law
