Channel: Jamal Badawi
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name's daddy the benevolent the Merciful, the creator and Sustainer of the universe Peace and blessings upon his servant and messenger Muhammad forever mean. Today we have our 17th program in our series dealing with the economic system of Islam. We will be continuing with our topic of distribution and social justice with special reference to the laws of inheritance. I'm your host hammer Rashid and I have joining me as usual though Dr. Jamal Badawi of St. Mary's University, Jamal Assalamu alaykum Monica,
we always take time at the beginning of each episode to quickly summarize the main points touched on in our previous program class can do that for us quickly. So far, we have covered the three basic means of achieving social justice. One is the care institutionalized charity. Secondly was the taxes beyond Zakah. Thirdly, are the voluntary charity which we covered last time.
Of course, the course is inheritance that we hope to discuss today.
In the previous program, the focus was on the third means of achieving social justice. The voluntary charity refers to the foundation of this source, and the Quran, and the prophetic traditions, and how both emphasize cooperation, mutual concern sharing and compassion. In addition to this general encouragement to be good, quote, unquote. We discussed also some of the special occasions where charity is particularly emphasized such as the case of harvesting, marriage, a birth of a child, having guests and hospitality to guests.
We discussed briefly by will footnote, the system of so called family allowance that was applied in the seventh century by armor, the second Caliph after the Prophet. In addition to this, we discussed briefly some of the emergency situations which makes it incumbent on anyone who's able to give a hand to help people in terms of those who are starving or need immediate medical attention.
It's not just users fee that some might and system.
In addition to this, we also discuss some additional sources of charity in society, some of which actually could be regarded nefarious charity but duty, like spending on the family or a tournament are certain infections, but also the distribution of meat and the feast of sacrifice the institution of trust or allocating certain funds as a test for benefit of poor and of course, we are just about to touch on the fourth means the last one. Okay, well, turning now to the question of inheritance. I wonder if I craps Have you begin by shedding some light on the historical aspects of inheritance prior to the, the practice with inheritance prior to Islamism? Well, of course, this could be a
topic by itself, but I found a very nice summary of that we're not just doing history exclusively. But there is a nice summary in chapter seven of the volume written by Hamada allottee, called feminist structure in Islam in which he discussed that in some length and quote, some authority so I'm just summarizing the summary really. But basically, we can say that under the Greek and Roman systems, the property rights and religion were very much tied with each other. And the sun, the male, descendant was regarded as the symbol of the continuation or continuity of religion. Based on that philosophy, there was no inheritance right given to the female because the son or the male was
the one who symbolizes
religion and as such property also, among the Hebrew people, there was definite preference to the male side of the family. And the beginning actually the the elder son used to inherit almost all they stayed but later on it changed and the the elder son inherited double portion,
but definitely there was ahead of the female.
Among the pre Islamic Arabs
the common system for inheritance was known as combat
ratchett in arms, which is a strange concept really, basically, it says that anyone who contributes more to the strength and power of the tribe, which includes, of course, military defense, against other tribes, would be entitled to a higher share of inheritance. On the other hand, those who are not contributing as much are not entitled, that meant a very funny situation whereby some of the close relatives who are, let's say, females, not participating in fighting, or miners, are invalid, we're not in fact entitled to any shares of the inheritance because they're not contributing to strength.
But on the other hand, they may be some strangers to the family called as Mo, le, somebody from outside who happen to have allegiance with the tribe and defending them, he would inherit. So you get a relative who does not inherit because he's a female or minor, and you get an outside of an edge because he's simply contributing to the strength of the of the tribe. Like I said, that was before Islam.
When the mission of Islam or submission to the will of God was completed, and culminated through the mission of the last prophet Muhammad peace be upon him, we find that we are facing a new and independent system. There may be some partial similarities here and there. But in essence, it was a totally different and new system altogether new concept of inheritance. As a modality, the author of that volume family structure in Islam summarize it, he says, it would be inaccurate to call this system, the Islamic system as individualistic or collective or collectivistic, if you will, nor would be accurate to call it either traditional or modern, nor would it be correct to call it a
system which is fitting for the agrarian society or tribal society. It is much more than all of this it's not really
narrow type of identification as well, perhaps it would be appropriate
to add some
substance to that to ask you perhaps to comment on the main features of the law of an inheritance in Islam.
What perhaps was derived, which is again such elegant description of it, well, perhaps the earlier historical introduction might help shed some light as to in what sense this Islamic system is different, but first of all, the first and most important characteristic of it is that it is a system which considers human nature mainly the question of motivation to work. As you know, there may be some totalitarian systems which prohibit inheritances, the origin of the, if you live anything after, you know, your life just goes to the state or someone else, but not really to your legitimate errors or you descendants. And that is contrary to human nature. Because if a person
knows that his estate would go to the state, or the government, a person may not be motivated to work hard. So instinctively, God has inspired into us to love and care for our descendants. So we work hard so that we leave something for them to, you know, to go by, especially if they're young or unable to, to earn the living. So this is one basic thing. It's based on this human nature. A second basic characteristic is that the law of inheritance in Islam is mandatory, which means that you don't have to go to court for a ruling to get your shares because it is specified, at least for the primary heirs. It is specified in the Quran. And the Muslim regards the Quran as the direct Word of
God and nobody has the right to overrule that or overrule His Word. So it's mandatory.
Not only would would it be prohibited from any state or government to restrict inheritance, it would not be even permissible for an individual to disarm or to dispossessed someone or ask that some person of his legitimate heirs would be deprived of inheritance except under very rare and specified circumstances.
The third basic characteristic is that the scheme of distribution of inheritance in Islam is rather broad. It includes those who are able as well as those who are not who are minors. Females, young, old, married, unmarried. Indeed, in Islamic law, even a fetus in the womb of his mother is entitled to inheritance. For example, if his father dies before the boy
Go is born, they're still entitled to inheritance. So it's much broader in scope, so long as it includes those illegitimate heirs. who just won documentation of this basic principle from the Quran. In chapter seven, verse seven, in chapter four, verse seven in the current literature in a civil matter, actually, the translation of the meaning says, unto men, that is of the family is assured of what is left by parents and near relatives. And the unto women is a share of what is left by parents, and near relatives. And notice this, whether the property be small or large, at determine share.
So that's the question of male and female are included, everybody who's legitimate heir is entitled to some share, according to the scheme provided in Islam. And there is no choose whether the property is too small or too large, everybody has a determined chair, so nobody has the right to his own. That's why we call it a more broad scheme of distribution. A fourth basic characteristic is that it is a scheme of distribution, which keeps in mind equity. And when I say equity, I don't mean mean, mechanical and superficial equality. That is why we find for example, the different shares of percentage of the state going to different areas varies depending or depending on their financial
responsibility. It's somewhat proportionate to this responsibility, as we find, for example, in the reciprocity, of the privilege and inheritance visa V, financial obligation between parents and children, mutual type of obligation, mutual type of privileges, rather proportionate, as we find it also in the variation under Islamic law between the shares of males and females, which is again, consistent with the variations in their financial responsibility. under Islamic law, we're not talking about under other systems under Islamic law, everything is proportionate and equitable.
That sense? Well, I wonder if I could perhaps get you to explain this concept of equity a little bit further with special reference to the variations between the male and female share of and of inheritance? Well, first of all, as indicated earlier, the term equity means that you should take a partial aspect of Islamic law and put it out of context in some alien system and judge it as some writers do.
A typical of this is a common but very inaccurate, and perhaps even superficial statement that you find in the media sometime that Islam accords, the Muslim woman in lower status. And one of the reasons given is that a woman under Islamic law inherits half as much as the male for example, if you have brother and sister, the brother inherits more than, than the sister, aside from the fact of course, that to the Muslim that sounds rather strange to say, unfair because these shares are in the Quran. And the Quran is the word of God. And God is not male or female. So why should that be biased towards a male or female part of his pitches. But the main problem really arises, like I said,
because of taking things out of the context, taking one aspect of Islamic law, why don't we take everything together? If you take financial obligations, responsibilities and privileges of both male and female, under Islamic law, you will find that for sure, a woman
is much more secure financially than the male even. She is always entitled for support, she doesn't have to earn her living. So of course, you can if you wish, but she is not required legally. And here the full responsibility falls on the male side, whether a father, husband, a son, or a brother. In the case, none of this is available to support her if not even the state would be responsible.
Furthermore, as has been indicated in a previous series on on such a system and Islam, we can just make a quick cross reference here. That in Islamic law, a woman unlike what we find, for example, and other cultures is always on the receiving side. During the engagement, she is the one who receives gifts. At the time of marriage. It is the husband who pays a marriage gift and it is exclusively the right and property of the wife. Thirdly, Islam allows the woman before marriage and that's 1400 years old law to own any property in any way she wishes before marriage. After marriage, the same amount of property also transfers to her without any change and she has fun
Freedom to dispose of this property without permission of the father or husband or anyone else.
That's perhaps the most crucial one. In Islamic law, no matter how rich the wife may be, she's not required to spend a penny in the household. The entire responsibility for housing, food, clothing, recreation, medication, everything for her and her children falls squarely and exclusively on the shoulder of the husband unless she wants to contribute, of course, voluntarily part of that budget, she's not required legally.
If divorce takes place, she is entitled for her property before marriage, any increment, or grace in that property during the marital life. And she's entitled for full maintenance and support during the waiting period, which is usually three months but could extend to nine months if she's pregnant.
She's entitled for even compensation for settling the baby. After divorce. She's entitled for child support, she's always on the receiving side. On the other hand, the male side of the family carries much bigger burden. Financially, he's the one who pays for gifts, is the marriage or the marriage gift at the time of marriage is the one to be responsible fully for the household no matter how rich his wife may be. He's the one who has to pay the delayed part of marriage gift in case of divorce support her children. So if you really put at look at it in terms of equity, rather than mechanical, superficial equality in each and every item at all of the items, for the male and female, you will
find that not only other equitable, but there's even a slight advantage given to the woman in consideration, of course of her greater need for security so that she can go on and never fear to get pregnant, never fear to stay home to look after the baby. Because after all, she's totally secure.
Financially, I should just add one quick comment here that
there may be some cases even even though they are not the general rule where a female may inherit similar to or equal to
the male. It is a general rule that a male inherits twice. An example of that would be under some circumstances, parents, father and mother both would inherit one sixth of the state of their child. In the case of both the father and the daughter inherits, under certain circumstances, a daughter may even inherit more than the father, she might be entitled to one half. Whereas the father may inherit one sex, it's not always that the male gets less than the female. It is related to the degree of closeness to the deceased as one consideration. But if everything is equal, like brother and sister, in consideration of this variations in financial burden, and responsibility,
the male inherits twice as much. I think that clarifies the issue very well, it is very important that things are placed in their proper context. I wonder if I could get you to tell us something about the scheme of distributions. there any particular Is there any particular priority and this question and distribution of the state among among the heirs? Well, first of all, the cost of the funeral would have to come from the property of the deceased. And most jurists would say that this actually take precedent, not only the funeral for the deceased himself, but for anyone who was under his, you know, care and responsibility. For example, if both, let's say wife and husband, or wife
and child or a husband and wife and child died in an accident, and they, one of his dependents pre deceased him or died simultaneously with him. The funeral expenses of all of this would come from his from his property, that's one thing.
There are some jurists, however, who give as a first priority
debts due to others which are involved some kind of mortgage, or run.
This is a, you know, a controversial matter of some creditors sample the funeral as first.
The second general priority is to pay the debts due on the deceased person, which in fact includes debts to human beings or debts to get. Of course, that's the bad in a sense of somebody, for example, who did not yet pay his required institutionalized charity, or soccer.
There is difference among some jurist as to whether this item like that's towards God like charity
stops at the time of death of the individual like Abu hanifa says, or whether it still should be given priority like a chevron and even has
hold that it should still
even be paid from his property. But in any case, it involves both types of debts, especially if the person before his death before his death specifies and say, all right, I am in debt to such and such person, I did not pay my charity, please, if I happen to die, you know, pay the charity so that I go to God with clear, conscious. But I should add here that on the question of debts, the liability of the IRS is restricted to the maximum value of the estate. In other words, they are not liable if the deceased person have more deaths than he was he left not required, unless they do it out of their own, but they're not legally required. The third priority then would be the will to execute the will
and testament of the deceased. That is, if he for example, specifies before his death that I'd like certain amount to go for charity or for some other relative who would not otherwise be entitled to inherit far relative, for example, that could be executed. But there are some restrictions on that first, is that a person cannot make a will and testament in more than one third of his left property or estate after paying, of course, the dues and funeral expenses cannot exceed one third. And that is, of course, in protection of the illegitimate heirs. That's one district. A second restriction is not that definite. Generally speaking, as the Prophet Prophet Muhammad said, and as noted in Atma,
then a Buddha would admit
that a person should not make a will to someone who's going to inherit. In other words, if a person has a legitimate heir, like a son, or daughter or wife, and she's going to inherit anyway, one cannot make a will, because that distorts the scheme of distribution as the Quran presented. So it's just like going from a backdoor to change it. However, in another saying of the Prophet narrated and adapt, that's me.
the Prophet says that, or made an exception that a person could make a will and testament for more than one third of the stage by the permission, or the approval of the illegitimate heirs. In other words, they agree, an example of that would be a person have so many children, for example, and one of them happened to be really in dire need and more need than others. And if the rest of the brothers say, Alright, you know, we are in better shape financially, you don't mind our Father, you know, if you make, for example, a will for some amount for that person, even though he's already going to inherit with them. So he will take that part, and then his visit mature from whatever
And then after that, of course, the distribution takes place, according to the scheme provided in Islam and Islamic law. But by the way, there is no succession tax in Islam.
You know, the heirs are more entitled to that there's no succession tax. Well, now is that the is a will a mandatory item and in Islam, and what of what happens if the deceased does exceed one third maximum without the agreement of the of the heirs? What would happen in that event, whether the wins should be executed or not? Yes. Okay, well, first of all, about the will, the will and testament,
in the sense of assigning certain amounts for charity or this or that is not really mandatory, a person may or may not, if you don't specify, for example, and you live under the system or the standard law is implemented, then automatically the distribution would go according to the scheme and Islam. So it's optional, if a person should it is recommended, however, if a person can afford if a person is poor, and live leaving behind the small amount, and he feels that his heirs are in more need for that, charity starts at home, like they say, but it is desirable if a person can afford to specify
the other case that you asked about whether if the deceased makes a will for more than once there Yes, well, it should be reduced them to the maximum of one third after the funeral expenses and other debts, so automatically to go to the, to the maximum. But of course, if it's less than the maximum, that's less than one third, it is executed as it is, but more which is reduced to one third.
I should add here since we're talking about the will and testament that the will and testament becomes null and void. If the person made it at the time when he's his last days meant and balance and die, for example, when crazy or something. Of course, in this case, it will not be applicable because he would not be really in the proper shape to decide. So notice here it's a system or a weld which combines between the respect of the desire of the deceased on one hand, on the other hand, or
So keeping in mind the protection of the rights of parents. Now, after all the claims that you mentioned a moment ago, how is the state of distributed after these expenses are to be taken into consideration? Well, first of all, there is the so called as harbored fraud, roughly like primary heirs, who have signatures specified directly in the Quran. And this includes four categories of males and eight of females. The meds include the husband, the father, grandfather, and brother, brother from another side, the eight categories which have also have a specified shares include the wife, the mother, the grandmother, the daughter, the sister, half sisters, either from mother side
or father side. And nice notice here that the Son is not mentioned, but it doesn't mean that he's excluded because he inherited under another title called Tassie whatever remains gross to to the sun and others as well. Now, after the primary errors, are there others who made here Yes, after the primary errors, there is the tassia or people who might be called more or less like agnate. errs, basically, in that order, whatever remains after the specified chairs are paid to the first primary category, the rest goes to the Son, there is no son, it goes to the Father. If there is no father, it goes to the brothers, there is none of this, you know, living, it goes to the to the uncle.
And then of course, after that it goes to to the non agnate heirs, which may include people like the grandchildren,
niece, and some niece and nephew also who would otherwise not inherit under normal circumstances with inherit as the third category. When what happens if you have an estate that is not divisible as property in it, like a house, for example, or machine or capital equipment, things like that, that also was built by Muslim jurists it's called the hieros, which means that you can make the valuation of the of the property and if one keeps it, then he can compensate or pay others in proportion to the shares. So it could be evaluated.
Are there any circumstances which result in exclusions from inheritance? Well, of course, as indicated in the earlier parts of the program, in principle, nobody should be excluded. That's a general rule. But as you might recall, we said also there may be some rare and specified cases where a person could be deprived from from inheritance.
First is some deprivation, because of the individual himself. An example of this is a saying of Prophet Muhammad peace be upon him narrated and if no manager and a Buddha would, 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, like somebody knows that, for example, his mother or grandmother has lots of money or something in a life insurance policy or executor or something like that, and just tried to kill her or get her killed, he would be deprived, because, of course, it's an immoral act. So the punishment is that you will not inherit.
A second aspect is when the religion of the diseased and the earth are different.
The jurist have agreed in principle that for example, a non Muslim cannot inherit from a Muslim. Some say that the reverse also is true, while others uphold that to become a Muslim should not be a disadvantage, and a Muslim could inherit either from a Muslim or non Muslim but the reverse would not be true.
There are also other categories which might be
might not be entitled for inheritance if somebody take priority over them. Like for example, if there is a grandfather, and there is a son, the son would inherit, the grandfather would not if the son is not there, maybe the grandfather could be entitled so there are some degrees of priority in that respect.
Our time for the day is gone. We want to thank you for for watching. I invite you back next week when we continue our series Assalamu alaikum. Peace be unto you