pre islamic inheritance system
DESCRIPTION
a system used by every culture may be the best way used by that culture as well as pre Islamic inheritance. so, of course, a system will be incompatible with our present condition when assessed by present perspectives.TRANSCRIPT
PRE ISLAMIC INHERITANCE SYSTEM (Review on the Justice Values in its Division of
Inheritance)
By Zaenul Mahmudi
ABSTRACT
Every society has its own ways to solve the problems they face, including the inheritance problems. The pre-Islamic Arab society had local wisdom to determine the heirs deserved to inherit, and who did not that was adapted to the socio-cultural conditions of the time. The pre-Islamic Arab society established that the heirs deserving the inheritance properties were men responsible and able to bear arms on the battlefield. Young children, frail men and women were not considered eligible to receive inheritance properties made a symbol of leadership and responsibility to the family and tribe. Inheritance properties received by men were not spent for their own benefit, but returned to their families and tribes as a form of responsibility and dedication over the trust that family and tribe submitted. Inheritance properties were used to support the families and tribes, in addition to the cost of war and diplomacy with other tribes.
A. BackgroundIslamic law the God had revealed to Muhammad not only
for the single nation, but for all nations all over the world. Islamic
law is not reserved towards certain period, but the whole period
since the God has sent Muhammad as the Prophet. Islamic law is
not only for the people who lived in the 7th century BC, but also
those who live in the 21st century and beyond. Islamic law is not
The article is presented in Round Table Discussion held by ICP Unit on Friday, January, 11 2013
only for the Arabic people but also for those who live in Tokyo,
Paris, and Montreal.1 Therefore, the Sharia should be able to adapt
to the development of culture, people and time as legal maxim
says “al-Islâm shâlih li kull zamân wa makân”.
Islamic law was not revealed in the society having no
culture, but in the society already had certain culture, traditions,
and rules as their local wisdom for governing their living. Islamic
law when it had sent into the Arabian society did not necessarily
ignore their existing local wisdom, even it adopted and adapted
the culture and tradition deeply rooted in the community in which
were then given the spirit and values of Islam. Therefore, Bassam
Tibi said that the existence of religion in relation to society and its
development has a dual role; model of reality and the model for
reality. The first model means that the Islamic religion is
institutions whose existence can not be separated from the
existing Arabic ones while the second model has the notion that
religion is values and social institutions made for change and
community development.
Islamic law of inheritance was one example where pre
Islamic-Arabian tradition and inheritance influence the inheritance
concept understood by Sunni schools. There are some concepts
indicate the influence of the pre-Islamic Arabian culture is on the
Islamic inheritance system, such as the concept of ‘ashabah that,
as Robertson Smith said, originally means those who go to battle
together i.e. have a common blood-feud.2 This concept was later
adopted by the Islamic inheritance system as male heirs whose
relationship to the deceased did not inserted by female heirs
(agnatic heirs).1 Muhammad Shahrûr, Nahw Usûl Jadîdah li al-Fiqh al-Islâmî; Fiqh al-Mar’ah: al-washiyyah, al-Irth, al-qiwâmah, al-Ta‘addudiyyah, al-Libâs, (Damaskus: al-Ahâlî, 2000), 21-22.2 Robertson Smith, Kinship and Marriage in Early Arabia, (London: Adam and Charles Black, 1903), 65
Adoption and adaptation of the pre-Islamic inheritance
system done by Islamic inheritance system shows that the
tradition of inheritance applied to the pre-Islamic Arab society is
not bad at all, but the author believes that pre-Islamic inheritance
system is the local wisdom best applied in the division of
properties in the context of society at the time. Therefore, this
paper intends to examine the pre Islamic local wisdom in the
division of the properties applied in the pre-Islamic Arabian
society, particularly in relation to the values of justice.
B. Theoretical perspective
1. Inheritance System
Inheritance system is the system of the division of the
properties as agreed upon by the community in determining
who the heirs are, how many shares they get and how its
distribution to be done. Inheritance system that has been
strongly institutionalized in Muslim world society is Sunni and
Shiites inheritance systems, while in Indonesian context besides
the Sunni inheritance system applied in the Muslim society,
Indonesian government also applies Indonesian-Islamic law of
inheritance ruled in the President Instruction No. 1/1991 on the
Compilation of Islamic Law Book II. Besides, there are some
new legal reasoning about inheritance proposed by Hazairin,
namely bilateral inheritance concepts.
In the Sunni inheritance systems, the heirs is divided in
three groups, namely the sharers (dzawî al-furûdl), the agnatic
heirs (‘ashabah) and kindred heirs (dzawî al-arhâm). The shares
for dzawî al-furûdl consist of six shares, namely: half, third,
fourth, sixth, eighth and two-thirds depending on who sharers
are and how their condition are. And the method of inheritance
there are some conditions, namely: when the heirs consist of
only the sharers (dzawî al-furûdl), when the heirs consist of the
sharers and agnatic heirs (‘ashabah), and when there are no the
sharers and agnatic heirs but only kindred heirs (dzawî al-
arhâm).
Besides the Sunni inheritance system, there is Shiite
inheritance system. The Shiite inheritance system divided the
heirs into three classes inheriting hierarchically. It means that
the closest heirs to the deceased will eliminate more remote
ones. The first class consists of: a) true father and mother, and
b) son and daughter and their descendants how low so ever.
The second class consists of a) true grandfather and
grandmother how high so ever, and b) brother and sister
whether they are full, consanguine or uterine and their
descendants. And the third class consists of a) uncle and aunt
from male lines and their descendants, and b) uncle and aunt
from female lines and their descendants.3 The heirs of three
classes groped by Shiite inheritance can be divided into two
gropus, namely the sharers (dzû fardl) and dzû qarabât
consisting of agnatic heirs (‘ashabah) and kindred heirs (dzawî
al-arhâm) as termed by Sunni inheritance system. It means that
‘ashabah and dzawî al-arhâm in Shiite inheritance system have
same status.
2. Justice
Justice in Indonesian is called “keadilan” coming from the
word "adil" having prefix “ke-“ and suffix “-an”. It has several
meanings : a) the same weight, not biased; non-partisan, and b)
the thing should be, while justice means things (actions,
treatment etc.) are fair. The word “keadilan” is Indonesian
language from Arabic “adl” which means “mâ qâma fî al-nufûs
3 Muhammad Hasan al-Najafî, Jawâhir al-Kalâm fî Sharh Syarâ’i‘ al-Islâm, volume 39 (Beirut: Dâr Ihyâ’ al-Turâts al-‘Arabî, , 1981), 7-8.
annahu mustaqîm wa huwa dlidd al-jawr” (something exists in
the soul which he believe it as something straight and fair. it is
an opposite of injustice). “Adl” also has the meaning legal
provisions liked by someone else and issuing the law correctly.4
Justice, in the view of Rif'at al-Tahtawi is equality before
the law (al-musah amâm al-qanûn) or life in accordance with
the agreed laws and regulations.5 The word “adl” always
associated with the word “i‘tidâl” meaning balance. Sometimes
the word “‘adl” is related to right of people, so it means to give
someone the thing according to his right" and "to prevent
injustice", because injustice of tyranny is beyond the
determined limits.
In Khan’s view, the focus of justice ('adl) meaning is a balance
and proportional division rather than equity among people,
because equality contradict justice in certain condition.6 It can
be felt when the awards and salary given to people who have a
high social status or positions are equated with those who have
low ones.
There are several kinds of justice, namely distributive
justice, retributive justice, corrective justice, procedural justice,
commutative justice, legal justice, social justice, and restorative
justice. Aristotle (384-322 BC) in his Nicomachean Ethics
distinguishes between general justice and specific justice. The
first encompasses all the good that a person uses in treating
others, while the second encompasses the distribution of
certain honor, wealth, and property equally and fairly. Aristotle
said: "For if the persons are not equal, they will not have equal
4 Al-Khalîl ibn Ahmad al-Farahidî, Kitab al-Ain; Murattaban Alâ Huruf al-Mu’jam, juz III, (Beirut: Dâr al-Kutub al-‘Ilmiyyah, 2003), 110.5 ‘Azzat Qarniy, al-‘Adâlah wa al-Hurriyah fi Fajr al-Nahdlah al-‘Arabiyyah al-Hadîtsah, (Kuwait: Alam al-Ma’rifah, 1980), 73.6 Muhammad Akram Khan, Islamic Economics and Finance : A Glossary, (London and New York: Routledge Taylor & Francis Group, 2003), 3.
shares; it is when equals possess or are allotted unequal shares,
or persons not equal, equal shares that quarrels and complaints
arise."7 The people who do not have same position do not get
the same shares. It also means that when they have the same
position then given unequal shares or who do not have same
positions given the same shares will cause strife between them.
C. Pre-Islamic Inheritance System
The pre-Islamic Arabian society is tribal society based on the
patriarchal family system8 in which the male person has a special
position rather than female ones. This male special position is not
only in acquiring the rights, but also in carrying on their family
and tribe survival. Obligations and responsibilities carried on by
the male person commensurate with their right in acquiring
properties.
Based on historical information, the geographical conditions
in most of Arabia land is desert, a few meadows and springs called
oasis. The number of meadows and oasis are not proportional to
the number of people and tribes living in Arabia. The geographical
conditions makes Arabian people live in nomadic style. They have
to move from one place to another to look for a decent life for their
tribes, families and cattle. Given that Arabian bedouin seek
pasture and oasis altogether, the scramble and fight between them
often occur to demonstrate their responsibility and obligation to
protect their families and tribes.
This condition makes the men who have the power and
responsibility (qiwâmah) become a major factor for the
sustainability of families and tribes. If a certain tribe had not been
7 Duane F. Alwin, “Social Justice” in Encyclopedia of Sociology Second Edition. Volume 4 (New York: Macmillan Reference USA, 2000), 2696.8 JND Anderson, Islamic Law in The Modern World, (New York: New York Press, 1959), 60
had men who had the power and responsibility, the tribe would
have been destroyed by other tribes and not able to find food and
water for the sustainability of their tribes and families. Therefore,
the pre-Islamic Arab tribal life, gave the men who have the power
(qiwâmah) has a strategic role and become the foundation of the
sustainability of their tribes and families.
The pre-Islamic Arabian society applied the "law of the
jungle". It means that the tribes that were strong would win and
those were weak would loss. This condition encouraged the
emergence of patriarchal family system, because, men naturally
have more physical strength than that of women. Men are at the
vanguard and became a fortress to fight enemies who will attack
and destroy them. The men also became the backbone for their
tribes and families in economical life, because they had
responsibility to nurture their tribes, families, and cattle.
There is no security for a man other than an unwritten law
“blood feud” in which if one of tribe’s members was killed by one
of another tribe’s members, he must be avenged by his agnatic
relatives. And if the killing tribe want to avoid further bloodshed,
they have had to provide bloodwite as a compensation to “heirs of
blood”.9 In this unwritten law, only the agnatic families of those
men killed or killing who can look for revenge or responsible to
pay the fine as compensation for the death of a person.
This law also has implications for entitled heirs to properties
of inheritance, namely agnatic heirs (‘ashabah) who has
responsibility to avenge and pay fine. Females, their descendants,
and small children have no rights as those of nearest male
relatives do.10 The sequence of agnatic relatives entitled the
inheritance is as follows: male descendants will eliminate male
9 Ibid, 60-61.10 Ibid, 61.
ascendants and collaterals, and male ascendants will eliminate
collaterals; collateral from father takes precedence over uncle
from paternal grandfather and so on. So, it can be concluded that
the sequence of agnatic heirs entitled to inheritance follows the
rule “closest relatives will eliminate more remote ones”.
There are several grounds of inheritance applied by pre
Islamic Arabia that can be grouped into two groups, namely:
lineage or blood relatives and specific causes. The lineage or blood
relative causes have no clear rules, there is no equity between
male and female. The rule used is the man who is strong to bear
arms and fight will be entitled to inheritance.11 The factor “bear
arms and fight” used by pre Islamic inheritance system as
prerequisite for men to be entitled to inheritance follows natural
interest to sustain their tribes, families, and cattle.
With regard to the heirs from lineage grounds, Asaf A. A.
Fyzee reveals that the principles of the pre-Islamic customary law
may be summarized as follows: 1) The nearest male agnate or
Agnates (‘ashabat) succeeded, 2) Females and cognates were
excluded, 3) Descendants were preferred to ascendants, and
ascendants to collaterals, and 4) Where the agnates were equally
distant, the estate was divided per capita. 12
The second factor consist of two aspects, namely: oath of
allegiance (al-hilf) and adoption of child (al-tabannî). Oath of
allegiance was often done by the pre Islamic Arabia between
individuals, groups, and tribes to strengthen themselves in facing
enemy attacks that disrupt the safety and survival of their families
and tribes. In the oath, they promised and said: “Damî damuka wa
hadmî hadmuka wa tarithunî wa arithuka wa yathlubu bî wa 11 Maryam Ahmad al-Daghistânî, al-Mawârîts fî al-Syarî‘ah al-Islâmiyyah alâ Madzâhib al-Arba‘ah wa al-A‘mâl ‘alaih fi al-Mahâkim al-Mishriyyah, (Kairo: Jâmi‘ah al-Azhar, 2001), 5-6.12 Asaaf A. A. Fyzee, Outlines of Muhammadan Law, (Bombay: Oxford University Press, 1974), 389
yathlubu bika” (My blood is also your blood, my ruin is also your
ruin, you inherit me and I inherit you, this oath binds me and binds
you). When one of the two tribes who made this allegiance died,
then the tribe’s partner is entitled to the property of the deceased
of sixth. 13
The second cause is adoption of child. The adoption was a
tradition used to be applied in pre Islamic Arabia and continued to
the early days of Islam, even the Prophet himself had adopted a
boy named Zayd ibn Haritsah and called Zayd ibn Muhammad. In
the tradition of child adoption, the lineage of child adopted would
be shifted from biological father to adopting father and the
adopted child was treated as if he was a biological child. He got
inheritance properties as son did, because they had same and
equal position. 14 They inherit each other when his brother died
first.
D. The values of Justice of Pre-Islamic Inheritance System
Principles and values of justice used in the distribution of
inheritance properties are distributive justice or the principles of
al-ghunm bi al-ghurm. In which, Aristotle concludes that
distributive justice does not necessitate the division of properties
should be the same for everyone, even equate the shares to all
person may be an injustice deed when there are different position,
services, and social status beteen them. Principle and value of
justice can be achieved when the division of property regards
social status, services, and responsibility a person has in his
family, community or other organizations.
Distributive justice can be implemented fairly if the existing
social system has given equal opportunity for everyone to gain
13 Ahmad al-Daghistânî, al-Mawârîts, 6.14 Ibid, 6
position or particular services in which everyone, both men and
women are given equal opportunity to express themselves and
have equal opportunity to obtain office, service and responsibility
that has implications for differences in the number of properties
they get in the distribution of inheritance. In other words,
distributive justice can be implemented correctly if procedural
justice has been well implemented.
Therefore, to assess the justice of pre-Islamic inheritance
system, the justice used is distributive one, which means that the
number of properties some heirs get is in accordance with the
burden and responsibility of the heirs in their families. The more
the heirs bear heavy burden and responsibility, the more the heirs
obtain the number of properties. On the contrary, the less the
heirs bear burden and responsibility, the less the heirs get the
properties. The principle of distributive justice (al-ghunm bi al-
ghurm) used in the distribution of inheritance is revealed by
Mahmûd Muhammad Bâbalilî as follows:
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"Provisions of Islamic inheritance is a holistic provision based on the principle of “al-ghunm bi al-ghurm” (the booty got is comparable to loss in paying a fine '). It means that people
15Mahmûd Muhammad Bâbalilî, al-Syarî ‘ah al-Islâmiyyah; Syarî ‘at al-‘Adl wa al-Fadl, (Mekkah: Râbithah al-‘A’lam al-Islâmiî, 1414H), 57-59.
entitled to the properties of the deceased are those who responsible to provide expenditure for the deceased during his lifetime. If the closest relatives is not capable, the responsibility is delegated to more remote ones. ... the number of shares some heirs get varies according to their responsibilities. The female heirs’ share is half that of the male when they are daughters or wives. Sometimes, the share of female and male heirs is same as uterine sisters and brothers, and parents (father and mother), each gets sixth when the deceased has far‘ al-wârits. If Shariah, under some conditions provide a share for male heirs twice that of female heirs, because male heirs have economic responsibility not be owned by female heirs, male heirs are responsible to provide expenditure for their wives, children, and parents”.
Before Islam, women had not gained true identity as a human
being yet. Women have not been considered as a human but
properties or cattle. They could not inherit, even could be
inherited by the heirs of her deceased husband. This condition was
affected by the harsh conditions at the time in which women who
are physically weak have no any merit. Their existence was a
burden for the tribe in maintaining its survival from enemies’
threats and attacks. They are not able to bear arms and fight the
enemies, and even they spent foodstuff destined for those who
were able to fight enemies. If the principle of distribution of
inheritance "al-ghunm bi al-ghurm" is applied, it is reasonable if
women do not get the inheritance, because they have no any merit
and services for sustainability of their tribe and families. A tribe
may find difficulties when members of his tribe consisted of many
women in which the nomad habit of moving can be more difficult
when they have to move them.
Therefore, it is understandable why the principle of the
distribution of inheritance in pre-Islamic inheritance system was
based on the male lineage supplemented with qiwâmah or the
ability to fight, protect and nurture the family and tribe. Men who
has qiwâmah can be counted on to defend and continue the
sustainability of their tribe and family.
Mind set "fight among tribes" in pre Islamic society
encourages and reinforces the patrilineal kinship system and then
patriarchal system, in which the position of men is central in the
life tribe. The mind set necessitates the strength to bear arms as
the parameters for who is become the leader in tribal life. This
social condition in turn implies the exclusion of women from the
constellation of tribal life. Domestic role of women and their
heredity roles were not regarded and immersed in the atmosphere
of struggle, hostility, and fight in the tribal life.
Oath of allegiance (al-hilf) conducted between tribes in
maintaining the existence of tribe was often done in the pre-
Islamic Arabian society. Mutual cooperation between them implies
the existence of rights of inheritance rights for oath of allegiance
partners, in which if one member of the tribe died, the allying tribe
are entitled to a sixth of the properties. The distribution of
inheritance in the perspective of distributive justice (al-ghunm bi
al-ghurm), then a partner of the oath of allegiance is eligible for
inheritance, because they had a merit and services in defending
and securing their tribe’s partner.
Adoption is also a reason for allotting an inheritance to the
child adopted. Adopted child, in pre-Islamic society is equated with
biological children, especially in matters of inheritance. They are
entitled to inheritance if his adoptive parents died. The adopted
child was of course male person able to sustain the existence of
the adoptive father’s tribe. Therefore, granting them inheritance is
also in line with the principle of distributive justice or "al-ghunm bi
al-ghurm", because he has a merit and services for the
sustainability of the adoptive tribe.
E. Closing Remark
The study of pre-Islamic inheritance system has significance
in the development of law in which the development of the law can
not be separated from the social, economic and political as Islamic
legal maxim quoted by Ibn Qayyim al-Jawziyyah says “al-hukm
yadûr ma‘a ‘illatihi wa sababihi wujûdan wa ‘adaman16 and al-
fatwâ tataghayyar bi taghayyur al-zamân, wa al-makân, wa al-
ahwâl.17. On the other hand, this study informs that every society
has a unique tradition and culture or local wisdom based on the
principles of welfare and justice understood and agreed by each
community. Certain society local wisdoms is not necessarily good
in the view of other society as the pre Islamic Arabia local wisdom
in the view of contemporary society. However, local wisdom of the
distribution of inheritance applied by pre Islamic Inheritance
system is the best method to maintain justice among people in
tribal life.
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Alwin, Duane F., “Social Justice” in Encyclopedia of Sociology Second Edition. Volume 4 New York: Macmillan Reference USA, 2000.
Anderson, JND, Islamic Law in The Modern World, New York: New York Press, 1959.
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Daghistânî al-, Maryam Ahmad, al-Mawârîts fî al-Syarî‘ah al-Islâmiyyah alâ Madzâhib al-Arba‘ah wa al-A‘mâl ‘alaih fi al-Mahâkim al-Mishriyyah, Kairo: Jâmi‘ah al-Azhar, 2001.
Farahidî al-, Al-Khalîl ibn Ahmad, Kitab al-Ain; Murattaban Alâ Huruf al-Mu’jam, juz III, Beirut: Dâr al-Kutub al-‘Ilmiyyah, 2003.
16Ibn Qayyim al-Jawziyyah, I‘lâm al-Muwaqqi‘în ‘an Rabb al-‘Âlamîn, Vol. 5. (Riyâdl: Dâr Ibn al-Jawzî, 1423 H.), 528.17Ibid, Vol. 6, 114.
Fyzee, Asaaf A. A., Outlines of Muhammadan Law, Bombay: Oxford University Press, 1974.
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Najafî al-, Muhammad Hasan, Jawâhir al-Kalâm fî Sharh Syarâ’i‘ al-Islâm, volume 39. Beirut: Dâr Ihyâ’ al-Turâts al-‘Arabî, , 1981.
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