Flaws in "Islamic"/sharee3a law regarding Bequest and Inheritance

[Samia]

Salaam all

This is a topic that generates many questions and an area that attracts a lot of attack towards Islam, yet hardly discussed, not even on this forum. Muslims of all sects, including hadith rejecters, believe that verses of inheritance are very clear and are almost gathered in one verse, which makes it very straight-forward, thus easier to understand than other topics. I, too, shared this belief until I read Shahrour's (Towards new rules of jurisprudence related to women) a few years ago.

I will translate this part from the chapter on " Bequest and Inheritance", and eagerly hope that we discuss it and evaluate this new understanding. My replies will be based on the ideas of Prof. ShaHrour's.

Flaws in "Islamic" law regarding the bequest and the inheritance:

1. Priority is given to laws of inheritance over those of bequest.
2. Abrogation of vreses on bequest, especially the part of "...that he makes a bequest to parents and next of kins" 2:180 by a weak hadeeth: "No bequest to a heir".
3. No distinction is made between "share (naSeeb): نصيب " which relates to bequest, and "share (HaDh: حظ " which relates to inheritance.
4. No distinction is made between general interest, reflecte on inheritance verses, and family/specific interests, reflected by verses ofn bequest, ignoring that the general does not cover the specific.
5. Treating "if they were women more than two"  as if it means "if they were two or more women) 4:11
6. Interpreting th word "walad/child:ولد " in verse 4:11  as "male child/boy" and as a reult, only a male child can keep all the inheritance within the family. This is contrary to the verse: يوصيكم الله في أولادكم للذكر مثل حظ الأنثيين God commands you regarding your children: to the male a portion equal to that of the two females, where males and females are both included under "walad:singular/awlaad:pl", and is also a contrary to the rule of the language where there are unisex words such as zawj (espouse), insaan (mankind), armel (widow/widower).
7 Inventing calculations that are not 100% of the inheritance (as a result of the flaws in 5 and 6 above), leading to giving those who should not inherit a share of the inheritance that was supposed to go to the heir (heiresses for that matter).
8. Preventing grand children to inherit their grand father if their father died befor the grandfather, although they are mentioned in verses of inheritance.
9.Giving relatives such as uncles part of the inheritance they are not entitled to.

[huruf]

I put forth a general remark or question on the word sharee3a/islamic law. From what I have seen, it is used in two ways,

1)as the rules institued in the Qur'an.

2)as laws developed in muslim or islamic states through the centuries.

Which meaning are we going to give in this thread?



I would like to know exactly how we intend to develop the debate. Comparing 2 to 1 so as to modify 2 and bring it in harmony with 1? Or forgetting about 2 and estudying 1 afresh and only go back to two as a secondary tool of analysis? Or in other words, adapt 2 or go about the Qur'an as if it has just been revealed and establish a new set.

I see that we are going to follow the outline made by Prof Shahrour, still I would appreciate clearer aim or outlook.


Salaam

[Samia]

continued...

Starting by the first verse of inheritance:

4:11 "God commands you as regards your children"

The first verse on inheritance states that the subject or realm of this command is the natural children, so they are the main heirs.

{"awlaad: children": derived from the verb walida: give birth, so this is about natural children (others are called "abnaa'", no available translation for that, but includes fostered children and grandchildren, just like the difference between waalid: natural father, and abb: foster father, ancesters)}.

"for the male as much as of the two females للذكر مثل حظ الأنثيين"
This is the first law of inheritance. It is clear that the "female" is the invariable here, and that the "male's" share varies according to the females'. In other words, this part of the verse is as if God is saying: first determine the share of the two females, then give the male the equivalent of it. Logically, the share of the two females should be determined in the first place.

The divine command/law regarding inheritance is contained in this one verse up to "and if they were women more than two their share is two thirds of the inheritance, and if she was one she gets the half...". Other cases are examples of varieties branching from these afore-mentioned cases.

Calculations:

Y = nX

where Y is the share of male, X is the share of female and n is the value by which X changes and thus the value of Y changes accordingly.

The first mistake in the undertsanding of this part of the law:
The verse says: للذكر مثل حظ الأنثيين : for the male as much as that of the two females, but it is applied as if it says: for the male twice as much as a female للذكر مثلا حظ الأنثى .
It is not just a meaningless linguistic variety, but there is a huge diference in the meaning between these two constructions. There is a difference whether you put the word "أنثى :female" in the dual or the word "مثل :as much" in the dual:

In the first case (two females: أنثيين ): we have a variable and a dependent: the variable is one, tw or more females, and the variable is the male whose share depnds on the variable's. That's why the male is mentioned only once in this verse, whereas the number of females is changed to all possible cases.

In the second case (twice as much مثلي ) there is neither a variable nor a constant, and the male's share is tice as much as a female, irrespective of the number of females.

[Samia]

I put forth a general remark or question on the word sharee3a/islamic law. From what I have seen, it is used in two ways,

1)as the rules institued in the Qur'an.

Salaam

Salaam huruf

As far as I know, we do not have inheritance laws based only on the quraan applied in any country. The "shari3a" law is based on many things, and in it verses are compomised for the benefit of hadeeth or an understanding of a scholar.

This study is based mainly on the qur'aan from a linguistic understanding and a mathematical application of the inheritance law based on algebra/ (analytic geometry, according to the words of Prof. Shahrour).

[Samia]

This means that the case of Y = 2 X is only applicable in this case: when there is one male and two females (or their subsequent multiplication by a commomn constant):nY = 2 nX

If the number/ratio of males to females is different from this formula, i.e females are more than three, e.g : one male and three or more females, we are given the next law: فإن كن نساء فوق اثنتين فلهن الثلثان مما ترك : if they were women more than two, they get two thirds of the inheritance.
If there is only one female, she gets half, the male gets the other half.

This is the basic law, considering that we have one male, and unlimited number of females, and this is what God called:  limits set by Him, in verse 4:12.

The main point is that this verse (4:11) is about "your children: awladukum: أولادكم" not a single child, and is about "children of mixed genders" not one gender.  The point is that thre is a ratio not number, set in this verse.

There is more explanation and examples, but I will stop here and try to reply from what is not translated here if you have any questions.

[Nun de plume]

Peace Samia,

The math is straight forward and I really don’t see any contradictions...

4:11 God directs/commands/recommends you in your children, to the male equal (the) fortune (share of) the two females, so if they are/were women more/over two, so for them (F) two thirds (from) what he left, and if she was one, so for her the half and to his parents, to each one from them (B) the sixth from what he left,if for him was a child (son), so if (there) was not for him a child (son), and his parents inherited him, so to his mother the third, so if brothers were for him, so to his mother the sixth, from after a bequest/will he bequeaths with it or a debt; your (P) fathers and your (P) sons, you (P) do not know, which of them (is) closer to you (P) (in) benefit/usefulness, a religious duty/command from God, that God was/is knowledgeable, wise/judicious.

Y = nX

where Y is the share of male, X is the share of female and n is the value by which X changes and thus the value of Y changes accordingly.

The first mistake in the undertsanding of this part of the law:
The verse says: للذكر مثل حظ الأنثيين : for the male as much as that of the two females, but it is applied as if it says: for the male twice as much as a female للذكر مثلا حظ الأنثى .

Example: 1 son and 5 daughters…
2/3x = female share

“for the male as much as that of the two females,”…
(2/3x + 2/3x) = male share
(2/3x + 2/3x) + 2/3x + 2/3x + 2/3x + 2/3x + 2/3x = 1

Or

“for the male twice as much as a female”
(2 * 2/3x) = male share
(2* 2/3x) + 2/3x + 2/3x + 2/3x + 2/3x + 2/3x = 1

Regardless it’s the same amount with x = 3/14

Thus each female share = 2/3x = 2/3 * 3/14 = 1/7; male share = 2/7

[Samia]

Example: 1 son and 5 daughters…
2/3x = female share

Salaam Nun de plume

This is what Shahrour believes to be incorret: applying one case to all, although the verse has more than one example. If the law is to give the male twice as much as the female, why giving examples of other cases (one female, more than two females)? Another point is considering that the part of (if she was one, she gets the half, and if they were more than two they get 2/3) as in case there are no males, although the verse is about "awladukum: your children".

The result is that when the heiress is just a girl, she gets half, and the remainder goes to people who are not mentioned in this verse. This is due to the misunderstanding of the verse being about different genders. n case of similar genders or one heir/heiress, it is simple: the inheritance is divided between only those mentioned in this verse: another parent and the child/children. If both parents are dead, all goes to the child, irrespective of their gender.

For the example you gave: we have one son and 5 females. The law applicable is:
5 > 3 they get 2/3
male gets 1/3

[OPF]

I don't get the argument here, but, it's easy enough to suppose that a male = 2 females, then split it equally. Hence, a large family of 3 males + 6 females => y/(3*2 + 6) where y is the total inheritance assigned to children, then each male recieves 1/6y, each female 1/12y.

For the example you gave: we have one son and 5 females. The law applicable is:

Pardon me but doesn't it say if they are only daughters or such?

Apart from the special cases, say x=y/(2*males + females), and for a male, 2x is their share, female has x. Same answers as nun de plume.

5 > 3 they get 2/3
male gets 1/3

2y/3 split into 5 becomes 2y/15, or 1/7.5 a male gets 2.5/7.5? In this example the male recieves 2.5x the share of a female, and that doesn't work with respect to the original rule.

[Nun de plume]

Peace Samia,

This is what Shahrour believes to be incorret: applying one case to all, although the verse has more than one example. If the law is to give the male twice as much as the female, why giving examples of other cases (one female, more than two females)?

Perhaps best way to try and explain this is with examples.

Example: 1 son and 3 daughters (one or two females’ calculation)
1/2x = female share
2*1/2x = male share

2*1/2x + 1/2x + 1/2x + 1/2x = 1
x = 2/5
˝ (2/5) = 1/5 = female share; male share = 2/5

Example: 1 son and 3 daughters (more than two females’ calculation)
2/3x = female share
2*2/3x = male share

2*2/3x + 2/3x + 2/3x + 2/3x = 1
x = 3/10
2/3 (3/10) = 1/5 = female share; male share = 2/5

Notice that in both calculations it works out the same amount!

Another point is considering that the part of (if she was one, she gets the half, and if they were more than two they get 2/3) as in case there are no males, although the verse is about "awladukum: your children".

The result is that when the heiress is just a girl, she gets half, and the remainder goes to people who are not mentioned in this verse. This is due to the misunderstanding of the verse being about different genders. n case of similar genders or one heir/heiress, it is simple: the inheritance is divided between only those mentioned in this verse: another parent and the child/children. If both parents are dead, all goes to the child, irrespective of their gender.

That is correct; example: 1 daughter…

1/2x = female share
1/2x = 1
x = 2
˝ (2) = 1 = female share (i.e. she gets the whole inheritance)

For the example you gave: we have one son and 5 females. The law applicable is:
5 > 3 they get 2/3 or 14/21
male gets 1/3 or 7/21

No, the male gets a bit less; 2/7 or 6/21 as stated in prior post and 1/7 each (5/7 or 15/21 total) goes to girls.

[Samia]

Salaam Nun

Please read the article carefully. You are applying the understanding of "for the male twice as much as a female", whereas the verse says: "for the male as much as the two females"

The rule you apply, which is: Y = 2X is applicable only if you have two females. More than two, we have the other rule:
"If they are women more than two, they get 2/3"

I don't get the argument here, but, it's easy enough to suppose that a male = 2 females, then split it equally. Hence, a large family of 3 males + 6 females => y/(3*2 + 6) where y is the total inheritance assigned to children, then each male recieves 1/6y, each female 1/12y.

You seem to have got it:

Pardon me but doesn't it say if they are only daughters or such?

No, it does not. It is all in one verse about "your children". The law rotates around the share of the female, who is the variable and the male's share is the dependent on the value of this variable.