Studies in Qurʼan and Ḥadīth: The Formation of the Islamic Law of Inheritance 0520055586, 9780520055582

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The Library of Claremont School of

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1325 North College Avenue

Claremont, CA 91711-3199

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(909) 447-2589

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Studies in Qur’an and Hadith

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~*' Studies in Qur’an A3% and il adith:

The Formation of the Islamic Law of Inheritance

David S. Powers

UNIVERSITY OF CALIFORNIA PRESS

Berkeley - Los Angeles - London

University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England

© 1986 by The Regents of the University of California Printed in the United States of America 35456

7.8.9

Library of Congress Cataloging-in-Publication Data Powers, David S. Studies in Qur’an and Hadith.

Revision of thesis (Ph.D.)—Princeton University, 1979. Bibliography: p. Includes index. 1. Inheritance and succession (Islamic law) I. Title. LAW

340.5'9

85-16819

ISBN 0-520-05558-6 (alk. paper)

In loving memory of my father, Louis L. Powers (1921-1985)

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Contents

List of Tables Xi

Preface Introduction PART I: THE PROTO-ISLAMIC LAW OF INHERITANCE ‘

Testate Succession

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The Designation of an Heir: A New Reading of Q. 4:12b The One-Third Restriction: al-wasiyya fi’l-thulth The Bequest Verses

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Husbands and Wives as Heirs in Early Islam

53

Three Problems in the Islamic Law of Inheritance The Status of Husbands and Wives as Heirs

56 74

The Law of Intestacy

87

The Meaning of the Term ““Asaba” The Law of Intestacy “Your Fathers and Your Sons”’ Conclusion: The Proto-Islamic Law of Inheritance

88

51

102 106

PART II: THE FORMATION OF THE ISLAMIC LAW OF INHERITANCE 4.

Wealth, Power, and Politics in Early Islam

113

Succession and Inheritance Claims Against Muhammad's Estate

113 123 128

Early Inheritance Practices

Vill

5.

6.

CONTENTS

On the Abrogation of the Bequest Verses

143.

Period of Revelation: 610—32 Early Doctrine: ca. 650—799 “No Bequest to an Heir’’—From Legal Maxim to Prophetic Hadith (Ninth Century) The Classical Doctrine (Tenth to Fifteenth Centuries) Summary and Conclusions

145 149 158 M2 184

The Asbab al-Nuzul and the Inheritance Verses

189

QO. 4:8

190

Q. 4:11-12

194

Q. 4:176

202

The Problem of “Multiple Occasions” Conclusion

2.03 206

Summary Appendix A. Translation of Qur’anic Inheritance Verses Appendix B. Qays b. Dharih Glossary Bibliography Index

209 217, 219 O25 227 249

Tables

1. Children and Parents

97

2. Parents and Siblings

100

3. Siblings Alone

100

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Thus a Muslim does not exercise any significant control—in theory, at any rate—over the manner in which his property will devolve after his death; he/she may not institute one or more persons of his/her choice as a testamentary heir or heirs. The division of an estate typically proceeds in the following manner: (1) debts are paid off and bequests, if any, are distributed to the legatees; (2) whatever remains constitutes the “estate,” which is divided up as follows: (a) the qualifying ahl al-fara’id take their shares “off the top”; (b) the residue, if any, is taken by the closest surviving ‘dsib. Suppose, for example, that a man dies leaving his father, mother, wife, son, and brother. (Let us assume, for the sake of simplicity, that there are no debts or be24. Concerning the distinction between uterine and consanguine/germane siblings, see chap. 1. Note that the granddaughter, grandfather, and grandmother were added to the list of ahl al-fard’id by analogy to the daughter, father, and mother. 25. Except in the event that the other heirs agree to the bequest.

10

INTRODUCTION

quests.) The father, mother, and wife, in their capacities as al-fara’id, inherit one-sixth, one-sixth, and one-eighth of the tate, respectively. The son, as the closest surviving ‘dsib, herits the remaining 13/24 of the estate, totally excluding brother and all other male agnates from the inheritance.”

ahl esinthe

The Classical Islamic Representation Detailed pronouncements on the subject of inheritance, whether in the form of Divine revelation or Prophetic sunna (precedent} were issued regularly during the twenty-two-year period between the beginning of Muhammad’s mission in 610 and his death in 632. By examining these pronouncements in their reputed chronological order we can discern three distinct stages in the development of the law of inheritance. During the Meccan period (610—22), at least six verses regulating various aspects of testamentary succession were revealed to Muhammad. Then, shortly after the emigration to Medina in 622, Muhammad received a second series of revelations establishing compulsory rules for the division of property. Finally, after the conquest of Mecca in 630, Muhammad clarified the relationship between the first and second series of revelations by issuing two statements limiting the scope of testamentary dispositions.

Stage One (610—22): The Bequest Verses

The Qur’an commentators indicate that prior to the rise of Islam and at least until the beginning of the Medinan period, it was customary for the Arabs of the Hijaz to transmit property from one generation to the next by means of a last will and testament, an assertion that finds ample support in specific cases mentioned in the sources.”’ For example, when Badil b. Abi Maryam, a Qurashi merchant belonging to the tribe of Banu Sahm, sud26. For further details on the “science of the shares,” see Coulson, Successi on, pp. 29-101; Fyzee, Outlines, pp. 387—441. 27. Tabari, Jami‘ al-bayan ‘an ta’wil ay al-qur’dn, 7:106: “kana al-nds yatawarathuna bi’l-wasiyya.” See idem, ara Dp NON

INTRODUCTION

ll

denly found himself on the point of death while on a trading expedition to Syria, he designated his two traveling companions as the coexecutors of his estate and ordered them to convey his property to his family in Mecca.”* Similarly, before Aws b. Thabit al-Ansari was

killed at the battle of Uhud

in 3/625, he had

apparently appointed two of his paternal cousins as the coexecutors of his estate.” When these two, acting perhaps in accordance with the terms of Aws’s last will and testament, refused to give any of the deceased’s property to his wife, Umm Kuhha, and daughters, the former complained to the Prophet that she and her daughters had been unjustly deprived of their inheritance.*” These two examples suggest that the intergenerational transmission of property by means of a last will and testament was a normal and accepted procedure during the earliest years of Islam. Indeed, it is against a background of testamentary succession that the first series of Qur’anic inheritance verses is best under-

stood. Six verses (Q. 2: 180—82, 2:240 and 5: 105-6) regulating various aspects of testamentary succession were revealed to Muhammad “at the beginning of Islam”:*' Q.2:180 enjoins a person contemplating death to leave a bequest for parents and relatives; Q.2:181 holds accountable to God anyone who alters a last will and testament; Q. 2: 182 encourages the reconciliation

of parties who disagree about the provisions of a will; Q.2:240 permits a testator to stipulate that his widow is entitled to a maximum of one year’s maintenance, provided that she remains in her deceased husband's house; and finally, Q. 5: 105—6 establish that a last will and testament, to be valid, must be drawn up or dictated in the presence of two trustworthy witnesses. These six verses reflect a system of inheritance that leaves the individual relatively free to determine whom his heirs will be and how much they will inherit. 28. Wahidi, Asbab nuzul al-qur’an, pp.206—07: “fa-awsa ilayhimda_bitarikatihi”; see also Suyuti, Lubab al-nuqul fi asbab al-nuzul, p. 136. 29. Wahidi, pp. 137-38 (no. 7). 30.. fabaxi, Jam, 4-262: 31. Zamakhshari, al-Kashshaf ‘an haqa’iq ghawamid al-tanzil, 1:289; Baydawi, Anwar al-tanzil wa-asrar al-ta’wil, 1: 100—1, Nasafi, Tafsir, 1:88; Alusi, Rah al-ma‘ani fi tafsir al-qur’an, 2:75. 1 take the phrase “at the beginning of Islam” as referring to the beginning of Muhammad’s mission, in Mecca, Ca. A.D. 610.

12,

INTRODUCTION

Stage Two (622-30): The Inheritance Verses The asbdab al-nuziul (occasions of the revelation) teach that the permissive and discretionary system characteristic of the Meccan period came to an abrupt end in a.D. 625, as a result of the above-mentioned incident involving Umm Kuhha, who allegedly complained to the Prophet that she and her daughters had been unjustly deprived of their inheritance from her husband by the deceased’s paternal cousins. After listening to her complaint, Muhammad dismissed the woman “so that he might see what God would introduce.”®” The Divinity delivered his response to Muhammad in two stages, beginning with Q. 4:8, which affirms the right of women to inherit, and followed by Q.4:11-—12, which specify the exact fractional shares to which women are entitled. The latter two verses, together with Q.4:176, which awards fractional shares of the estate to consanguine and/or germane siblings (hereafter these three verses will be referred to collectively as “the inheritance verses’’), form the core of what would become the “science of the shares.””** Q. 4:11—12 and 4: 176 reflect a conception of the nature of inheritance very different from that embodied in Q.2:180 and 2:240 (hereafter, “the bequest verses’). In the bequest verses, the testator himself determines the type and quantity of the provisions to be made for parents, kindred, and wives, making the entitlement of the legatees dependent on the will of man, not God. In the inheritance verses, on the other hand, it is God himself who determines whom the rightful heirs are and how much they will receive (“God commands you concerning your children”). The last line of Q. 4:11 (‘Your fathers and your sons, you know not which of them is closer to you in usefulness’) contrasts the infallible wisdom of the Divinity with the fallible knowledge of man.) 32. Zamakhshari, 1:476—77: “Hatta yanzur md yuhdith allah.” See also Bay’ dawi, 1:196; Razi, al-Tafsir al-kabir, 9: 194, Wahidi, pp. 137—38 (no. 7). 33. For an English translation of these verses, see appendix A. 34. The transfer of control over the law of inheritance from man to God is rationalized by the nineteenth-century commentator, Alusi, in the following terms: “Since the testator might not manage to estimate correctly the amount that he should bequeath to each one of them and he might possibly intend them harm, [God] took upon himself to clarify that right in such a manner that it would be certain to be correct . . . . He restricted [inheritance] to obligatory limits, i.e., one-sixth, one-third, one-half, and one-eighth, which could not be changed, so

INTRODUCTION

13

The notion that the fractional shares specified in Q. 4:11—12 were established by God himself and are part of His plan for mankind is reinforced by the two verses that follow next in the Qur’an:

These are the limits of God. Whoever obeys God and His Messenger, He will cause him to enter gardens under which flow rivers, to dwell there in eternity. That is the great triumph. (4: 13) But whoever disobeys God and His Messenger and transgresses His limits, He will cause him to enter a fire, to dwell there in eternity. And he will be sorely punished. (4: 14)

Stage Three (630—32): The Sunna of the Prophet Islamic tradition presents the formation of the ‘ilm al-fara’id in terms of a progression from the voluntary system reflected in the bequest verses to the compulsory rules found in the inheritance verses. This conception, however, calls for further explanation because Q.4:11—12

themselves

award shares of the estate to

the heirs ‘after any bequest he bequeaths,”’ thereby indicating that the power of testation had not been eliminated entirely. The question of the extent to which testamentary dispositions remained operative is answered by the sunna of the Prophet, which imposes two major restrictions upon the power of testation. The first restriction was reportedly introduced shortly after the conquest of Mecca, in 630, during an encounter between Muhammad and Sa‘d b. Abi Waqqas. When Sa‘d, who believed that he was about to die, asked the Prophet if he might bequeath his entire estate, Muhammad responded, ‘‘a bequest may not exceed one-third of the estate.’’* This restriction is generally understood as an attempt to strike a balance between the compulsory and voluntary aspects of the law of inheritance: a minimum of two-thirds is distributed among the heirs in accordance with the compulsory rules established in the inheritance verses,

that it was moved [from the realm of testate succession] to that And He said, ‘God commands you’, i.e., He took it upon Himself, unable to estimate, on account of your ignorance.” (Ruh, 2:76; 4:336). 35. Bukhari, Sahih, 2:186. See also Muslim, Sahih, 3: 1250—53

of inheritance. since you were see also idem,

(nos. 5—10).

14

INTRODUCTION

and a maximum of one-third may be used to make discretionary bequests. i The second restriction had as its object the elimination of an apparent overlap between the voluntary and compulsory aspects of the law of inheritance. Q. 2: 180 and 2: 240 indicate that a person anticipating death should leave a bequest for parents and wives, while Q. 4:11—12 award these same persons a fractional share of the estate. Is it possible, then, for a parent or wife to receive a bequest of up to one-third of the estate in addition to the fractional share specified in Q.4:11—12? Apparently not, for Muhammad is reported to have declared, on the occasion of his Farewell Pilgrimage (A.D. 632), “No bequest to an heir.’”** Muslim scholars take this statement to mean that a bequest may not be made in favor of any person who qualifies as an heir, i.e., any person who is awarded a fractional share of the estate. Furthermore, they maintain that the fractional shares awarded to parents in Q. 4:11 and to wives in Q. 4: 12 superseded or abrogated

(nasakha) the obligation to leave bequests for those same persons, as stated in Q. 2: 180 and 2:240. Together, then, these two Prophetic dicta, “a bequest may not exceed one-third” and “no bequest to an heir,” define the relationship between the voluntary and compulsory aspects of the law of inheritance. Thus, Islamic tradition teaches that at the time of his death, Muhammad had laid the foundation for what would become the “science of the shares.” This foundation was completed over the course of the next thirty years by Companions such as ‘Umar, ‘Ali, Zayd b. Thabit (to whom the first treatise on the oe aay ern ae a the &

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