Inheritance in Islam and European law

Inheritance in Islam and European law

by Dr Mohammad Akram Nadwi
Oxford

The inheritance laws in Islam are designed to contribute to the re-distribution of property in order to prevent excessive concentration of private wealth while at the same time maintaining the solidarity of family property. In other words, the role of wealth and family sharing in it is part of the bond of family and the Qur’anic provisions for the division of inheritance preserve that role. The danger of concentrations of wealth in private hands is recognised both in the division of inheritance and the obligation of zakah, but it is specially recognised in the strong prohibition of riba. Property has a role in giving material form to the power and dignity of the individual person, and therefore the right to property is accorded to both women and men. The only restriction on this right is sanity and legal majority, in which cases the right is temporarily exercised by an agent for that person and held in trust for them.

By contrast, modern European law makes property right absolute, so that, to give an extreme example an individual distanced from his family ties is entitled to leave his entire wealth to his dog with only the state having some statutory right to some legally specified fraction of the inheritance (so called death duty). This absolute right combines with the right to use it as the owner pleases, this includes lending it on interest. Interest is an integral part of the economy and a variable rent on all economic activities which forces up costs and aggravates inequalities in society. The absolute right of the owner of property also entails a right to waste it if the owner so chooses. The state, however, does take on certain powers whereby a duty of care can be defined legally and enforced, obliging the owner to spend his or her wealth in ways that express care for his or her dependants and whoever works for him or her.

One particular feature of European law in pre modern times with women had only limited right to hold and dispose wealth independently of fathers or husbands. If a propertied woman married, her rights were immediately transferred to the husband. This, once described ‘as civil death’, no longer is the case, and women generally enjoy the same property rights in principle as men. This is easily promoted as progress or a victory in the battle for gender equality. By contrast the provisions of Islamic law make any comparable progress towards gender equality impossible. What is the reason for this?

First of all no human enjoys absolute right under the law because every right is conditioned and contained within a pattern of corresponding responsibilities. If a male child inherits the double of a female child (an explicit Qur’anic principle), it is because the responsibility of providing financially for dependants including the wife falls exclusively on the male. Nevertheless, the role of property in giving material form to the dignity and power of the individual is recognised for women in that they receive a substantial portion of their parents’ wealth. There is no suggestion in the relevant passages of the Qur’an that women are unfit to hold and dispose of property.