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Al-Ahram Weekly 20 - 26 July 2000 Issue No. 491 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly 20 - 26 July 2000 Issue No. 491
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Region International Economy Opinion Culture Features Travel Living Sports Profile People Time Out Chronicles Cartoons Letters
The better half?
By Reem LeilaThe inheritance provisions in the Qur'an were superimposed upon the customary rules designed to keep property within the individual tribe in pre-Islamic Arabia, according to John Esposito, author of Women in Muslim Family Law. Tribal rules allowed only mature male relatives to inherit, excluding widows and daughters, for instance.
The Islamic inheritance system did much to correct these injustices, and is widely recognised as having raised women's status in society. "The Qur'an granted rights of inheritance to the husband and the wife, to children, and to a number of close female relatives who had previously had no rights of succession at all," writes Esposito. In general, however, female heirs were awarded a share equal to half that of their male counterparts, since men were expected to provide for women.
Many women's rights activists and Islamic reformers today believe that, while Islam did in fact improve women's status in comparison to what it had been during the Jahiliyya, the fact that women inherit half men's share, and the stipulation that two female witnesses are equivalent to one male, are incompatible with constitutional rights granted by most modern nation-states, according to which all citizens are equal before the law. Yet some Islamic scholars feel that at least one part of this argument is flawed, since the instances in which women receive one half of men's share are actually quite rare. Zeinab Radwan, dean of Cairo University's Dar Al-Ulum (Fayoum branch), notes that "if anything, the argument that Islam enshrines women's status as inferior to that of men indicates inadequate knowledge of Islamic legislation." A careful examination of the Islamic philosophy of inheritance, she asserts, reveals that Islam takes into account certain considerations that have nothing to do with gender, but which have been subjected to an erroneous, gender-focused reading. "While women inherit half the share of men in some cases," she explains, "in others they inherit an equal share, and sometimes even double the share of men, or more. Indeed, there are instances in which women are entitled to inherit, while men are not."
Such variety arises from the distinction Islam establishes between several categories of heirs. Jurists of the Hanafi school, according to Esposito, divide the heirs into seven categories. The first three are the principal classes. Qur'anic heirs, who are mostly women, are sometimes called "sharers" because they receive a precise fraction of the estate, prescribed by the Qur'an. They inherit first, but take only a portion of the estate. The remainder (usually the bulk of the inheritance) reverts to the male relatives. Once these heirs have received their share, the estate passes to the class II agnatic heirs, or male relations on the male line. Then the remainder is distributed among the uterine heirs, which include "every relative who is neither a sharer nor a residuary," as Esposito explains.
Professional mourners
photo: in Egypt Observed, Bracken Books, 1986
Occasionally, cautions Radwan, "the inheritance rights of the first-degree heirs use up the entire estate, and nothing is left for the second-degree or class II heirs." The Qur'an, she continues, designates 12 first-degree heirs, of whom eight are female and only four are male. The females are the wife, mother, daughter, grandmother, son's daughter, full sister, paternal half-sister and maternal half-sister of the deceased. The males are the husband, father, grandfather and maternal half-brother.
Islam, therefore, established that women are just as entitled to inherit as men, notes Radwan. Furthermore, it ordained that the number of class I female relatives entitled to inherit is twice that of the class I male relatives. Islam also extended protection to kin through the maternal line, by making the maternal half-brother a class I heir. Additionally, siblings from the same mother inherit equal shares regardless of gender.
Radwan asserts that there are only four cases in which women inherit half men's share. When the deceased is survived by a son and a daughter, the Qur'an says: "Allah (thus) directs you as regards your children's (Inheritance): to the male, a portion equal to that of two females."
According to Radwan, however, the general rule that dictates the distribution of an estate is the heirs' relation to the deceased. The closer the relation, the larger the heir's share of the estate. For example, a daughter inherits more than a paternal uncle. She receives half the inheritance if she is the only daughter; if there are more than one, their share in the estate is two thirds. A wife inherits one eighth, while a mother inherits one sixth. The rest of the estate, no matter how small, passes to the paternal uncle or uncles.
"Thus, the daughter of the deceased, although a female, inherits more than his brother, even though he is a male," says Radwan. There are, however, exceptions to this rule of proximity. A maternal grandmother inherits the same share as the father of the deceased, although she is not as closely related. Also, a maternal half-sister inherits a share equal to that of a full brother, although she is not as closely related to the deceased. These exceptions, Radwan emphasises, are both in favour of women.
Other factors regulating the distribution of an estate are also linked to considerations other than gender. For instance, she remarks, the younger the generation of heirs, the greater their need for money. Accordingly, the younger generation inherits more than the preceding one. Thus an only daughter receives half of an estate and two daughters or more receive two thirds, while their grandfather is granted only a sixth. The share of a son is also greater than that of his grandfather, although both are males. Radwan explains that the circumstances in which women inherit half as much as men show that the criteria determining distribution are designed to strike a balance between rights and obligations. "If we consider the cases in which women inherit half men's share in light of women's right to inherit and men's obligation to provide all the financial support, we will find that ultimately women are equal to if not more privileged than men. According to Islam, men are financially responsible for the family, while a woman has no financial obligations and is not even required to spend on herself or her children, no matter how wealthy she is, unless she chooses to do so," says Radwan.
While some instances of women inheriting half as much as men do exist, then, Radwan argues that there are others in which women's share is equal to that of men, cases in which women inherit more, and even cases where women inherit while men do not.
EQUAL SHARES: A maternal half-sister, for instance, inherits a share equal to that of a maternal half-brother. "According to the Qur'an," notes Radwan, "if the man or woman whose inheritance is in question has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth. If there are more than two siblings, they share in a third. This text clearly indicates that half-siblings on the mother's side inherit the same amount."
Thus, when a woman dies, her husband inherits half the estate, her mother one third, and a maternal half-sister or half-brother one sixth. In other cases, a maternal half-sister may even be favoured over a full brother. Thus, a husband receives half his deceased wife's estate, while her mother inherits one sixth, two maternal sisters take one third and a full brother receives nothing. According to Radwan, it is only after the prescribed shares have been distributed that the full brother, a class II heir in this case, receives his portion. If nothing is left after the first-degree heirs receive their inheritance, he receives nothing, in accordance with the Hadith: "Give the first-degree heirs their due and then give what is left to the most deserving of the male relatives."
Additionally, if the deceased is survived by a sole heir, whether male or female, the survivor will inherit the entire estate, regardless of whether the man is entitled to the inheritance as a second-degree heir and the woman as a first-degree heir. If the sole survivor is a woman, she gets her prescribed share as well as the remainder of the inheritance. Moreover, Islam equates male and female siblings. For example, if a woman dies, her husband will receive quarter of the inheritance, while a full brother or sister will get half.
MORE THAN A MAN: The largest first-degree (compulsory) share of inheritance in Islam is two thirds, and this share is granted to women, not men, notes Radwan. The only male who gets half an estate is a husband in the absence of other heirs (an exceptional case); in contrast, an only daughter, a son's only daughter, a maternal half-sister and a paternal half-sister are all allotted half the inheritance. Furthermore, "women are first-degree heirs in 17 cases compared to six cases only for men," says Radwan.
If a man leaves 648 feddans, his wife will get one eighth (72 feddans), his father and mother one sixth each (96 feddans), his daughter half (288 feddans) and the daughter's son one sixth (96 feddans). If the deceased had a son instead of a daughter, the son's son would receive daughter's son was a son's son his share would be only 27 feddans, because it is not among the prescribed portions.
EXCLUDING THE MEN: If a woman dies and leaves 195 feddans, her husband will receive one quarter (39 feddans), her father and mother one sixth each (26 feddans), her daughter one half (78 feddans), and that daughter's son one sixth (26 feddans). If the deceased had a son and not a daughter, the son's son would receive nothing, since his portion is not prescribed by the Qur'an or Sunna (prophetic practice).
If these inheritance laws seem unimaginably complicated, one can only imagine the difficulty of implementing them when the property legated is real estate that must be divided up amongst the heirs, for instance. As Esposito remarks, "the Prophet is reported to have said that the laws of inheritance comprise 'half the sum of ilm' (true knowledge stemming from divine revelation)."
(see p. 19)
