| 10/10/02 |
ACCRETIVE CONSTRUCTIONISM AND ORALITY IN ISLAMIC LAW (continued) |
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Arguably, inheritance is not simply a branch of law; rather, it is so important to Muslims that it was reported that the Prophet had considered it to constitute one-half of the sum of all knowledge[20] (or religion).[21] Despite the importance of inheritance law from the point of view of religious practices as well as its role in the economy of communities, there unfortunately are not that many studies that specifically treat inheritance laws in order to produce a general theory on the origins of Islamic law. Muslim scholars were content simply to report the determinations of the shares void of any critical analysis. Theoretically, the centrality of inheritance in the Qur’ánic, exegetical, <adíthic, and juridical contexts would allow us to trace a single branch of law (inheritance) from its primitive expression[22] to the posited juridical[23] renditions. Hence the transformations that take place throughout could determine for us what is characteristic of Islamic law and what is not. Once the essential elements are identified, a general theory could be formulated and then tested by future endeavors using different cases. |
Islamic Law And Government (2002) |
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In short, I would agree with Dutton as far as emphasizing the organic nature of Islamic law[24] as being grounded in the Qur’án and the Sunnah even if the rulings found in Islamic law do not reflect the literal meaning of the Qur’ánic verses; hence, the theory of ascriptive constructionism.[25] I contend that Islamic law in general consisted of ascribing and confining meaning with accretive precedents and general principles.[26] Role of Tafsír in Assigning Meaning Before considering the content of the Qur’án itself as it relates to inheritance, it should be pointed out that a closer examination of the text shows that Qur’án is exclusively an oral text.[27] The way Muslims learn and preserve the Qur’án is done exclusively through means that are greatly dependant on the oral discourse. As mentioned in other studies, as far as Muslims are concerned, the Qur’án is never a read document; rather, it is recited and chanted aloud.[28] |
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Based on the assertions in classical Islamic law legal theory, it would be reasonable to assume that explicit Qur’ánic statements are necessarily binding legal proofs.[29] Were that to be the case, one could use Qur’ánic verses to establish a new understanding of the law as long as that understanding is inline with the grammatical, syntactical, and logical guidelines. Applying this proposition could lead to the creation of the following distribution of shares based on the verses on inheritance as expressed below: [11] God (thus) directs you as regards your children's [#alyí](inheritance): to the male, a portion equal to that of two females [jím]; if only daughters, two or more, their share is two-thirds of what he left behind [#alyí]; if only one, her share is a half. For parents, a sixth of the inheritance to each, if the deceased left a child [jím]; if no children, and the parents are the (only) heirs, the mother shall have a third [jím]; if the deceased left brothers (or sisters) the mother has a sixth [jím]. (The distribution in all cases is) after the payment of legacies and debts. You know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by God; and God is All-Knowing, All Wise.
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al-Kitaab Supplement (forth coming)
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[12] In what your wives leave, your share is a half, if they leave no child [jím]; but if they leave a child, you receive a fourth from what they leave behind [jím]; after payment of legacies and debts [jím]. In what you leave, their share is a fourth, if you leave no child [jím]; but if you leave a child, they get an eighth from what you leave behind [jím]; after payment of legacies and debts [qalyí]. 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 [jím]; but if more than two, they share in a third [jím]; after payment of legacies and debts; so that no harm is caused (to anyone) [jím]. Thus is it ordained by God [qalí]; and God is All-Knowing, Most Forbearing. |
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I opted to adopt this translation from Picthall’s so that I am not using my own prejudiced interpretation in order to bolster my understanding of the verses. I have only made minor editorial changes when necessary.[30] I have also included the rules for recitation[31] of these verses so that this interpretation would not violate any of those established guidelines. Subsequently, one of the interpretations of the above verses could produce the following system of shares: I. Inheritance of the children and parents of the deceased: Let: s = son, d = daughter, f = share of the father, m = share of the mother, x = share of the daughter, y = share of the son, si = sibling, and n = 1 (integer), * = variable quantity usually expressed in terms of the remainder. If s =1 & d = 1 <=> x = 1/2 y = * f = 1/6 m = 1/6 If s = 1 & d = 2 <=> x = 1/2y y = * m = 1/6 f = 1/6 If s = 1 & d = 2 + n <=> x = 2/3 y = * m = 1/6 f = 1/6 II. Inheritance of the parents in the absence of children and siblings: f = 2/3 m = 1/3 III. Inheritance of the parents in the absence of children but in the presence of siblings: f = 2/3 m = 1/6 si = 1/6 The above is a system of shares based only on the reading of [Q4: V11].[32] As to the inheritance of the spouses, I think that their shares ought to be decided first according to [Q4: V12], then thereafter decide the inheritance of the children and parents as explained above according to [Q4: V11]. In other words, once the spousal share is determined, that share would be considered the entire estate and should be divided based on [Q4: V11]. This alternative reading is not at all without historical supporting reference. In fact, there is ample evidence that shows that Ibn `Abbás had many problems with the way inheritance was distributed. His disagreements were not limited to `Umar’s decisions; rather he was reported to have had continued his campaign to ask all later Caliphs to adhere to the letter of the Qur’án instead of the practice. Al-Bayhaqí reported that Ibn `Abbás once argued before the Caliph `Uthmán that the two brothers should not bar the mother from inheriting the full third because the Qur’ánic text clearly states that “if he has brothers…” and since two brothers is dual not plural, hence that verse does not cover the case where the deceased is survived by only two brothers. Therefore, Ibn `Abbás concluded, two brothers do not exclude the mother from receiving the full third. To this, `Uthmán replied: I cannot change what was established in a time before me, and was practiced in all times and places before.[33] Furthermore, this interpretation diverges from the traditional one in understanding even the first sentence of [Q4: V11]; in that, the sentence “to the male, a portion equal to that of two females” is understood by orthodox Sunni and Shi`ite scholars to be a general principle.[34] That is to say that, at any particular case where any combination of men and women are to share the inheritance, the women must have no more than half of the men’s share. To them, this does not apply only to children; rather, it is a legal principle that covers any situation wherein men and women are to inherit together.[35] Of course, the above interpretation is not acceptable to any scholar from any Muslim school of thought and the reason is not faulty linguistic or logical reasoning; rather only exegetical context.[36] Next to the Qur’án and the \adíth literature, the commentaries on these two documents constitute one of the richest sources of Islamic law. The traditions contained therein are raw and crude;[37] and it is because they are raw and crude that they are considered authoritative. In Islam, as is the case in most other religions, the older the tradition that is used as proof (dalíl) for a particular opinion, the more authoritative a decree would be. Commentaries on the Qur’án,[38] to be understood in this paper as tafsír, existed generations before the recording of the so-called al-@i<á< al-Sittah. In other words, the commentaries have chronological and authoritative precedence when compared to the collections of the <adíth. It is these commentaries that place the Qur’ánic verses within their historical context. It is true that the Qur’án has been considered as the primary foundation of law, however, just like in Judaism and other religions, later authorities do not directly consult the original sacred texts in order to extract legal proofs. A modern day mufti for example, would rely on the interpretations of the Qur’án. These interpretations are found in the books of tafsír. However, it must be recognized that not only later generations conceded the need for exegetical work; rather, it appears that even the Followers had already determined that the proper understanding of the Qur’án must be grounded in a systematic study. In a sense, tafsír was not only a science that had a chronological precedence over all other forms of intellectual endeavors, but also it could be regarded as a theological and religious necessity intervening between the Qur’án and later canonized rulings: Iyás Ibn Mu`áwiyah said: “the like of him who reads the Qur’án and knows its exegesis and him who does not, is like some persons who receive a book[39] from a friend of theirs at night; in the absence of the light of a lamp, they would feel confused and anxious not knowing what is in it. Once they have a lamp, they would know what is in it.”[40] Thus was the opinion of a judge from early Islam regarding one of the most important intellectual activities associated with the Qur’án and \adíth. It is so important that at one point in time, it became a discipline just like u#úl al-fiqh (legal theory) or u#úl al-dín (theology). The origins of tafsír are not well defined, but it would appear that this discipline, just like other Islamic sciences, had evolved and transformed with time. If we were to construe the tafsír as the mere explanations of the Qur’ánic speech; it would be possible to assert that such an activity had originated as early as the second half of the first Islamic century. However, the manner and the degree of interaction of the scholars with the Qur’án had varied with time and place.[41] While the first generation of tafsír scholars limited their activities to the simple restatement of the ambiguous Qur’ánic verses in clear words; there is evidence suggesting that later Muslim scholars expanded their activities to recast the Qur’án. The scope of these activities could be said to have oscillated between two distinct disciplines named tafsír and u#úl al-tafsír. It is for this reason that I would suggest that the latter concept ought not be confused with the tafsír at large, because there appears to be a significant difference between the two. While tafsír could be framed within the philological parameters, u#úl al-tafsír might be considered as the political dimension. Alternatively, one could argue that u#úl al-tafsír could be considered as the mythical dimension of a still historical discourse during that time period. Al-u#úl: plural of a#l: linguistically, it is that which is needed, but it is not in need. A#l is thus that which is evident by itself, and serves as a foundation for others.[42] In short, the word a#l has been used in the Islamic framework to refer to the primary disciplines. Consequently, inheritance laws are directly derived from the commentaries that expressed the practice and compromises of the early generation of Muslim leaders rather than the letter of the Qur’ánic enunciations. A case in point is the principle of `wal that bridges [Q4: V12] with [Q4:11].
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