Summary of 8.16 Charity & Distributive Justice
So far we covered three of the four basics to achieving social justice and they include Zaikai or Institutional Charity, taxes and voluntary charity.’ The fourth is inheritance which we hope to discuss today.’ In the previous program the focus was on the third means of achieving social justice, voluntary charity.’ We referred to the foundation of this source in the Quran and the Prophetic Tradition and how both emphasis cooperation, mutual concern, sharing and compassion.’ In addition to this general concern for being ‘good’ we discussed certain occasions where charity is particularly emphasized (harvest, marriage, birth of a child, hospitality).’ We briefly discussed the system of family allowance that was applied in the 7th century by Omar the second Caliph after the Prophet.’ We briefly discussed some of the emergency situations which make it incumbent on anyone who is able to aid those who are hungry or need mediate medical attention.’ In addition we discussed some additional sources of charity in society, some of which are actually regarded as charity but more of a duty, atonement for infractions but also the distribution of meat in the Feast of Sacrifice (Eid Al Adha), the institution of trust or Waqf which allocates funds for the benefit of the poor.
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8.17”” Distributive Justice and Inheritance
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Host: Can we provide information about the practice of inheritance prier to Islam?
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Jamal Badawi:
I found a nice summary of this in chapter 7 of the volume written by’ Hamouda Abd al Ati called ‘The Family Structure in Islam’ in which he discusses this.’ Basically we can say that under the Greek and Roman systems the property right and religion were very much tied with each other and the son was considered to be the symbol of the continuity of religion.’ Based on that philosophy the female was not given any inheritance rights because the son symbolized religion and property.’ Among the Hebrew people there was a definite preference to the male side of the family.’ In the beginning the oldest son used to inherit the whole estate and later it changed so that the oldest sone inherited double what the others got.’ Among the pre-Islamic Arabs the common system for inheritance was known as Comradeship in Arms.’ This is a strange concept but basically it meant that anyone who contributed more to the strength and power of the tribe which included military defense was entitled to a higher share of the inheritance, and those who do not contribute as much are not entitled to anything.’ The close relatives such as females, minors and invalids were not entitled to a share of the inheritance because they did not contribute to strength.’ On the other hand a stranger who might have allegiance to the family in defense would get part of the inheritance because he simply contributes to the strength of the tribe.
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When the mission of Islam was completed and culminated through the Prophet Muhammad (PBUH) there was a new and independent system which may have some similarities here and there but in essence it was a totally new system of inheritance.’ Hamouda summarizes is by saying that ‘it would be inaccurate to call this system individualistic, collective nor traditional or modern, nor would it be correct to call it a system which is befitting the agrarian or tribal society, it is much more than all of these.’
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Host:’ What the main features of the law of inheritance in Islam?
Jamal Badawi:
The first and most important characteristic of it is that it is a system which considers human nature’s motivation to work.’ As we know there are some totalitarian systems which prohibit the right to inheritance.’ This is contrary to human nature because if a person knows that their estate will go to the State they may not be motivated to work hard.’ Instinctively God has motivated us to love and care for our descendants, so we work hard and leave something for them.
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A second basic characteristic is that the law of inheritance in Islam is mandatory so one would not have to go to court to get their share because it is specified, at least for the primary heirs, in the Quran.’ The Muslim regards the Quran as the direct word of God and nobody has the right to over rule God.’ So this is mandatory and not only would it be prohibited for any state or government to restrict inheritance but it would not be permissible for an individual to disown or ask that one of his legitimate heirs is deprived of inheritance (except under very rare and specified circumstances).
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The third basic characteristic is that the scheme of distribution of inheritance in Islam is rather broad and includes those who are able and those who are not (minor, female, young, old, married, unmarried).’ In Islamic Law even a fetus in the womb of his mother is entitled to inheritance.’ For example if the fetus’s father dies before the birth they are still entitled to their inheritance.’ In the Quran in (4:7) ‘From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large,-a determinate share.” This covers the question of male and female and basically anyone who is a legitimate heir is entitled to their share according to the scheme provided in Islam.’ No body has the right disown.’ This is why we call it a more broad scheme of distribution.
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A fourth basic characteristic is that it is a scheme which keeps in mind equity and this doesn’t mean mere mechanical and superficial equality.’ This is why we find that different percentage goes to different heirs depending on their financial responsibility.’ The distribution is somewhat proportionate to this responsibility as we find in the reciprocity of inheritance
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Host:’ Can you explain the concept of inheritance with special reference to the variations between the male and female share of it?
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Jamal Badawi:
First, the term equity means that we should not take a partial aspect of Islamic Law and take it out of its context and judge it as some do.’ A comment that is very inaccurate and is perhaps even a superficial statement that we find in the media is that Islam accords a Muslim woman a lower status.’ One of the reasons given is that a woman under Islamic Law inherits half as much as the male.’ Aside from the fact that to the Muslim it is strange to say that this is unfair because these shares are in the Quran and the Quran is the word of God and God is not male or female.’ Why would God be bias towards males or females?’ The main problem arrises when things are taken out of their context, when one problem is taken out of Islamic Law instead of taking it all together.’ If we take financial obligations, responsibilities and privileges of both males and females you will find that a woman is much more secure financially than the male and she is always entitled to support.’ A woman does not have to earn her own living, of course she can if she wishes to, but she is not required to do so legally.’ The full financial responsibility falls on the male side whether it is a father, husband, son or brother and if non of these then the state would be responsible to support her.’ Furthermore, as we indicated in The Social System, in Islam a Muslim woman unlike what we find in other cultures is always on the receiving side.’ During the engagement she is the one who receives gifts, at the time of marriage and it is the husband who pays for the marriage gift which is exclusively her right and her property.’ Third Islam allows the woman before and after marriage to own any property in any way she wishes.’ After marriage any property she used to have remains hers and she has full freedom to dispose of her property without the permission of a father, husband or anyone else.’ Fifth, in Islamic Law no matter how rich the wife may be she is not required to spend a penny on the household.’ The entire responsibility for housing, food, clothing, recreation, medication and everything else for her and her children falls exclusively on the shoulders of the husband unless she voluntarily wishes to contribute.’ If divorce takes place she is entitled to keep all of her property that she owned before marriage, to any growth of that property during the marital life and she is entitled to full maintenance and support during the waiting period which is usually three months but could extend to 9 months if she is pregnant.’ She is entitled to compensation for suckling the baby after divorce, she is entitled to child support and is always on the receiving side.’ On the other hand the male side of the family carries a much bigger burden.’ He is the one who pays for gifts, pays the marriage gift, he is fully responsible for the household no matter how rich his wife may be, he is the one who has to pay the delayed part of the marriage gift in case they get divorced, he has to support her, he has to support the children.’ If we look at it in terms of equity instead of the mechanical and superficial item, we find that not only are they equitable but that there is a slight advantage given to the woman in consideration of her greater need for security so she can’ go on and never fear to get pregnant, never fear to stay home to look after the baby because after-all she is totally secure financially.’ There may some cases where a female may inherit similar to or equal to the male.’ It is the general rule that the male inherits twice as much as the female.’ An example of this would be in the circumstances of mothers who both inherit 1/6th of the child’s estate.’ In the case of a father and daughter the daughter inherits 1/2 and the father inherits 1/6th.’ It is not always that the female gets less than the male as it is related to the degree of closeness to the disease.’ But on an equal level like brother and sister and in consideration of the variations in financial burdens and responsibility the male inherits twice as much.
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Host:’ Can you tell us abut the scheme of distribution among the airs?
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Jamal Badawi:
First of all the cost of the funeral has to come from the property of the deceased and most jurists would say this has precedence.’ The funeral of anyone under his care such as a wife or child come from his property.’ There are some jurists who give debts a first priority which are due to others which involve a mortgage or rahn.’ Some people put debts first and some put the funeral first.
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The second general priority is to pay the debts due on the deceased person.’ This in fact includes debts to human beings or debts to God (if someone did not yet pay his required Zakah).’ There is a differences in opinions of some jurists as to whether debts to God like Zakah stops at the time of death like Abu Hanifa says or whether it should still be given priority like the opinion of Ibn Shafi’i and Ibn Hazm.’ In an case this field involves both types of debt especially if the person specifies before his debt that he is in debt to such and such a person and I did not pay my Zakah.’ Well on the question of debts the liability of the heirs is restricted to the maximum value of the state.’ In other words they are not liable if the deceased person has more debts than his worth unless they do it out of their own kindness.
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The third priority would be to execute the will and testament of the diseased.’ For example if he specifies before his death that he would like a certain amount to go for charity or to someone who would not otherwise be entitled to inherit.’ This is executed but with some restrictions.’ First, a person can not make a will and testament for more than 1/3 of their leftover estate after paying for all the dues and funeral expenses.’ This protects the legitimate heirs.’ The second restriction is not that definite.’ Generally speaking as Prophet Muhammad said as is narrated in Ahmad, Abu Dawood and Tirmithi that a person should not make a will to someone who is going to inherit.’ If a person has a legitimate heir like a son, daughter or wife and they are going to inherit anyway one can not make a will for them because that distorts the scheme and distribution as the Quran presented.’ In another saying of the Prophet narrated in Al Darr Qatmi that the Prophet made an exception that a person could make a will and testament for more than 1/3 of the estate with the permission and approval of the legitimate heirs.’ An example is if a person has so many children and one happens to be in dyer need (more need than the others) and the rest of the siblings are ok with their sibling inherits an extra amount along with his original share.’ After this the distribution takes place in accordance to the scheme provided in Islamic Law.’ By the way there is no succession tax in Islam, the heirs are more entitled to the inheritance.
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Host:’ Is the will a mandatory item in Islam and what happens if the deceased exceeds the 1/3 maximum without the agreement of the heirs?
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Jamal Badawi:
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First of all, the will and testament in the sense of assigning wealth is not mandatory.’ A person may or may not do this and if a person lives in a place where Islamic Law is implemented then automatically the distribution would go with the Islamic scheme.’ It is however recommended if a person can afford it.’ If a person is poor and is leaving behind a small amount and feels that his needs are in more need of it, then charity starts at home as they say.
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In the case where the deceased gives more than 1/3 to a person, it is automatically reduced to 1/3 after the funeral expenses and other debts are paid.’ If it is less than the maximum of 1/3 it is executed as is.
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The will and testament is null and void if the person made it at a time when his mental state was lost.’ In this case the will would not be applicable because he would not be in the proper shape to make these decisions.’ So a will keeps in mind the desires of the deceased and protects the rights of the rightful heirs.
Host:’ How are these shares distributed?
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Jamal Badawi:
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First, there are the Ashab Alfurud which are the primary heirs who have their shares specified directly in the Quran.’ This includes four males and eight females.’ The males include the husband, father, grandfather and brother.’ The females include the wife, mother, grandmother, daughter, sister, half sister and niece.’ The son is not mentioned here but that doesn’t mean he is excluded because he inherits under another title called Tasirl which means that whatever remains goes to the sons and other males.
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After the primary heirs there are the Tasirl or agnate heirs.’ Basically whatever remains after the specified shares are given to the primary category the rest goes to the son and if there is no son it goes to the father if there is no father it goes to the brother and if non of those are living it goes to the uncle.’ Of course it goes to the non agnate heirs like the grandchildren, nieces and nephews who would otherwise not inherit.
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Host:’ What happens if one has property that is not divisible like a house?
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This is dealt with in a method called takharooj which is an evaluation of the property and if one person keeps it he can pay others their share.
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Host:’ Are there any circumstances which result with exclusion from inheritance?
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Jamal Badawi:
In principle no one should be excluded from their inheritance.’ There may be some rare and specific cases where a person may be excluded from his inheritance.’ First is deprivation because of the individual himself.’ An example is the saying of the Prophet (PBUH) narrated in Ahmad, Ibn Maja and Abu Dawood in which he says that if a person kills another so that he can inherit from him or her then he would not be entitled.’ For example a grandmother has lots of money and he kills her so her would lead to him being disinherited.’ A second aspect is when the religion of the diseased and heir are different.’ The jurists that a non-Muslim can not inherit from a Muslim.’ Some say the reverse is true too but others say that to become a Muslim shouldn’t be a disadvantage and that a Muslim can inherit from a Muslim or non-Muslim but the reverse would not hold.
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There are also categories that may not be instilled to inherit if there is someone who takes priority over them.’ For example if there is a grandfather and a son, the son would inherit and the grandfather would not.’ If there is no son then the grandfather could be entitled.’ There are degrees of priority in this respect.
