The Legacy of Women in Islam
Journal of Contemporary Jurisprudential Research
Year 14 - Issue 56, 1423 AH.
Women's Inheritance in Islam between Text and Interpretation
Dr. Ruqayya Taha Jaber Al-Alwani (*)[^1]
Sources in Zahiri Jurisprudence:
131 - Al-Muhalla, authored by: Abu Muhammad Ali bin Ahmad bin Said bin Hazm (d. 456 AH). Publisher: Dar al-Ittihad al-Arabi for Printing, 1387 AH - 1967 AD.
Sources in General Jurisprudence:
132 - Ahkam Idhn al-Insan fi al-Fiqh al-Islami (Rulings of Human Authorization in Islamic Jurisprudence). Authored by: Sheikh Muhammad Abdul Rahim bin Sheikh Muhammad Ali Sultan al-Ulama. Publisher: Dar al-Basha'ir, Damascus, 1st Edition, 1416 AH.
133 - Tawthiq al-Duyun fi al-Fiqh al-Islami (Documentation of Debts in Islamic Jurisprudence), authored by: Dr. Salih bin Uthman bin Abdul Aziz al-Hulayl, Doctoral Thesis, 1406 AH.
134 - Al-Sharia al-Islamiyya (Islamic Sharia), authored by: Dr. Badran Abu al-Aynayn Badran. Publisher: Mu'assasat Shabab al-Jami'a, 1986 AD.
135 - Al-Fiqh al-Islami wa Adillatuhu (Islamic Jurisprudence and its Evidences). Authored by: Dr. Wahbah al-Zuhayli. Publisher: Dar al-Fikr. 2nd Edition, 1405 AH.
136 - Al-Madkhal al-Fiqhi al-Aam (The General Jurisprudential Introduction). Authored by: Mustafa Ahmad al-Zarqa. 9th Edition, 1967 AD.
137 - Al-Madkhal fi al-Ta'rif bi al-Fiqh al-Islami wa Qawa'id al-Milkiyya wa al-Uqud fihi (Introduction to Islamic Jurisprudence and the Rules of Ownership and Contracts). Authored by: Dr. Muhammad Mustafa Shalabi. Publisher: Dar al-Nahda al-Arabiyya, Beirut, 1403 AH.
138 - Al-Madkhal li Dirasat al-Sharia al-Islamiyya (Introduction to the Study of Islamic Sharia). Authored by: Dr. Abdul Karim Zaydan. Publisher: Mu'assasat al-Risala. 6th Edition.
Eighth: Sources in Linguistics:
139 - Al-Qamus al-Muhit. Authored by: Majd al-Din Muhammad bin Yaqub al-Fayruzabadi (d. 817 AH). Publisher: Dar Ihya al-Turath al-Arabi, 1st Edition, 1412 AH - 1991 AD.
140 - Lisan al-Arab. Authored by: Abu al-Fadl Jamal al-Din Muhammad bin Mukram bin Manzur al-Misri (d. 711 AH). Publisher: Dar Sadir.
141 - Mukhtar al-Sihah. Authored by: Muhammad bin Abi Bakr bin Abdul Qadir al-Razi (d. 660 AH). Publisher: Dar al-Qalam, 1979 AD.
142 - Al-Mu'jam al-Wajiz. Academy of the Arabic Language. 1st Edition, 1400 AH.
143 - Al-Mu'jam al-Wasit. Academy of the Arabic Language, 3rd Edition.
Introduction:
Discussion has increased recently regarding women's issues and their related rulings—from the halving of their testimony to their inheritance and other matters. These have begun to be presented as an entry point to challenge Islam's stance on women. In fact, some of these issues have been presented as if they were eyewitness evidence of Islam's suppression of women's rights, its insult to their humanity, and its degradation of their dignity!
Literature defending women emerged during a period dominated by the writings of some Orientalists and others who aimed to attack the position of women in Islam and challenge their status within it. These writings attempted to cast a shadow of injustice and depreciation upon the Muslim woman due to her adherence to Sharia teachings, which have never ceased to provide justice regarding her inheritance and testimony. Some even went as far as attacking traditions and customs far removed from Sharia teachings, considering them representative of Islam and its eternal rulings and legislations.
Thus, for over a century, literature concerned with women's affairs has revolved around defense at times, and comparison or approximation with Western thought at others, in an attempt to escape or alleviate the weight of that violent intellectual campaign.
Women's Inheritance in Judaism:
The Jewish religion views man as the axis of strength and protection, following the general principle of male-centricity in life (Patriarchal system) in various agricultural, pastoral, and rural societies on one hand, and his centrality in ensuring survival in the societies of dispersion and displacement that have characterized Jews across the world. Conversely, it viewed woman as the axis of guilt and sin on this earth. Consequently, inheritance laws were considered to revolve around the male alone.
The heir is the male child, whether born of a legitimate or illegitimate marriage; inheritance is for the male, and the female does not inherit except in the absence of males. The feature of discrimination between male children themselves in Judaism is evident in the following passage from the Book of Deuteronomy: "If a man has two wives, one loved and the other unloved, and they have borne him children, both the loved and the unloved, and if the firstborn son is of her that is unloved, then on the day that he makes his sons to inherit that which he has, he may not make the son of the loved the firstborn before the son of the unloved, who is indeed the firstborn. But he shall acknowledge the son of the unloved as the firstborn by giving him a double portion of all that he has: for he is the beginning of his strength; the right of the firstborn is his." [^2]
In the absence of males, the right shifts to the daughters, as stated in the Book of Numbers: "If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter. And if he have no daughter, then ye shall give his inheritance unto his brethren. And if he have no brethren, then ye shall give his inheritance unto his father's brethren. And if his father have no brethren, then ye shall give his inheritance unto his kinsman that is next to him of his family, and he shall possess it: and it shall be unto the children of Israel a statute of judgment, as the Lord commanded Moses." [^3]
Preamble:
The inheritance of wealth and the transfer of its ownership is a system brought by divine religions. Most human customs followed it in their various stages before Islam. These legislations applied changing laws to women depending on the status they lived and the position they occupied in those societies. The inheritance system at that time was influenced by various social, political, and economic circumstances surrounding societies and states [^4].
The issue of women's inheritance is one of the topics that has surfaced in many writings and literatures, sparking wide intellectual and social storms. Questioning it anew has become familiar to many contemporary authors and writers. What is the nature of the social and intellectual conditions that gave birth to this environment suitable for raising the discussion on women's inheritance again? And what role do these conditions play in raising such issues?
This research aims to answer these questions by reviewing the issue of women's inheritance in general throughout history, passing through the issue of her inheritance among the Arabs before Islam, then standing at the legislation of inheritance rulings in Islam and its philosophy therein. Subsequently, it moves to the present era to shed light on the historical and social circumstances that accompanied the increased interest in the issue of halving women's inheritance, attempting to trace this back to its intellectual roots within a study that adopts a comparative approach whenever necessary to inform the reader of the historical and intellectual beginnings of these trends.
As for inheritance between spouses, the husband has the right to his wife's entire inheritance without the participation of any of her relatives or children. The woman was the property of her family before marriage and became the property of her husband and children thereafter. The mother does not inherit from her children at all, but if she dies, the inheritance goes to her male children if she has any [^5]. The Christian system of inheritance followed what was practiced in Judaism until some Church Fathers established simple legislations in the chapter of inheritance, mostly derived from the Jewish and Roman systems, which made that sphere characterized by a massive legislative vacuum.
Inheritance among the Arabs before Islam:
The inheritance system among the Arabs before Islam was influenced by multiple factors, most notably the nature of life characterized by movement, travel, frequent crushing wars, and aggression between tribes, alongside the absence of a central authority to carry out these tasks to spread security and stability.
Accordingly, the Arabs in the Pre-Islamic period (Jahiliyyah) deprived children and women of inheritance due to their inability to bear the responsibility of defending and protecting the tribe. Inheritance for them was a system linked to the protection and defense of the extended family—the tribe—more than it was related to kinship, lineage, and similar social relations. The tribe performed all religious, political, and judicial functions.
Inheritance among the Arabs before Islam had several causes and conditions, including kinship, which pertained to males. As for women, they did not inherit at all, whether they were sisters, daughters, or mothers. It is stated in Ahkam al-Qur'an: "The people of Jahiliyyah used to inherit through two things: lineage and cause. As for what was deserved by lineage, they did not grant inheritance to the young or the females; they only granted it to those who fought on horseback and seized booty... until Allah Almighty revealed: {They ask you for a legal verdict concerning women. Say: Allah directs you concerning them...} the verse [^6].
However, it was reported from some Arabs that they granted inheritance to daughters in some cases and equated them with the son; among these was Dhu al-Majasid al-Yashkuri, Amir bin Jusham bin Habib [^7]. Yet, the general prevailing situation at that time required, in their view, the absolute deprivation of the female from inheritance. This was widespread among various Arab tribes and was considered entirely justified by them. The woman needed protection and care, especially in that society filled with aggression, wars, and raids, and the man was the one capable of performing that role. Thus, giving inheritance to the man instead of her was acceptable and had its justifications; they only granted inheritance to those who carried weapons, seized booty, and fought on horseback [^8].
The Philosophy of Inheritance in Islamic Sharia:
The inheritance system prevailing among the Arabs continued to be practiced in the early days of Islam on the basis that legislative rulings were revealed gradually until the verses of inheritance were revealed, which abolished those unjust laws that the Arabs had followed for a long time, as mentioned by al-Jassas (may Allah have mercy on him) in Ahkam al-Qur'an: "The people in the early days of Islam, after the Prophet's ﷺ mission, were settled in what they were upon in Jahiliyyah regarding marriages, divorce, and inheritance until they were moved from it to something else by the Sharia. The Messenger of Allah confirmed people in what he found them in regarding divorce, marriage, or inheritance" [^9].
Inheritance rulings—which later became known as the Science of Inheritance (Ilm al-Fara'id)—received great attention. The Prophet ﷺ urged learning and teaching it due to its importance, and the senior Companions (may Allah be pleased with them) raced to learn it. Unlike most other regulations in Islamic Sharia, the organization of inheritance came with precise detail for all shares, their beneficiaries, and the grounds for entitlement to resolve all causes of dispute that could arise from the distribution of shares. This precise detail was solely to preserve the primary objective upon which the inheritance system was originally based: maintaining the bond of kinship and its ties from any crack or disintegration.
Islam introduced inheritance rulings gradually, given its emergence in a Jahiliyyah environment dominated by obsolete, unjust laws based on the suppression of the rights of the weak, children, and women. The prevailing law—as previously mentioned—was that inheritance was for men because the defense of the clan and tribe fell upon their shoulders. From here, Islam began first by establishing the right of inheritance for these vulnerable groups and proving their entitlement to inheritance, whether it be little or much. With this regulation, it struck at the pillar of the inheritance system in Jahiliyyah. Allah Almighty said: {For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much—an obligatory share} [^10].
The confirmation of women's inheritance in Islam came in numerous Quranic verses depending on the woman's position and her kinship to the deceased. It defined the daughter's share with her brother by Allah's saying: {Allah instructs you concerning your children: for the male, what is equal to the share of two females} [^11]. It also granted the wife an inheritance and made for her an obligatory share. Allah Almighty said: {But if there are [only] women, more than two, for them is two thirds of what he left. And if there is only one, for her is half. And for one's parents, to each one of them is a sixth...} the verse [^12].
This change in the inheritance system was not met with approval or acceptance by a number of people who were accustomed to the habit of depriving women of inheritance. It was narrated from Ibn Abbas (may Allah be pleased with them both) that when the inheritance shares were revealed, in which Allah prescribed what He prescribed for the child (male and female) and the parents, people—or some of them—disliked it and said: "A woman is given a quarter and an eighth, a daughter is given half, and a young boy is given [a share], yet none of these fight the enemy or seize booty. Keep quiet about this, perhaps the Messenger of Allah will forget it or we will speak to him and he will change it." Some said: "O Messenger of Allah, shall we give the girl half of what her father left when she does not ride a horse or fight the enemy? And shall we give the boy inheritance when he is of no use?" They used to do that in Jahiliyyah; they did not give inheritance except to those who fought, and they gave it to the eldest, then the next eldest" [^13].
The narrations mentioned in the books of exegesis (Tafsir) depicted the prevailing situation and social conditions that people were accustomed to—the absolute deprivation of women from any share of inheritance, whether from a father, husband, or son. The books of Tafsir also narrated the complaints raised to the Prophet ﷺ by a number of women who were deprived of the inheritance of a father or husband and left without care. The narrations also indicate an increasing feeling in the young Muslim society of the necessity to discard and leave the customs of Jahiliyyah that dictated depriving women of inheritance due to their lack of contribution to the clan's maintenance and defense [^14].
When Islam granted women the right to inheritance, it thereby nullified the customs of Jahiliyyah and the accumulated unjust cultural legacies from previous nations in their oppression of women. It also struck down all customs contradicting the objectives of its Sharia teachings based on justice. Thus, the texts of inheritance became decisive over corrupt customs and unjust habits, despite their deep roots in souls and their grip on society at that time. By this, it laid the foundations and bases for dealing with unjust social conditions contrary to its rulings, and highlighted the importance of the absolute sovereignty of Quranic texts over everything that contradicts them, whether social conditions or customs incompatible with those texts and their contents.
Thus, every individual—from ascendants, descendants, collaterals, and relatives—finds specific, fixed, and clear shares, considering that the inheritance system in Islamic Sharia is a means for maintaining kinship ties and ensuring the legitimacy of the known transfer of ownership [^15]. When Islamic legislation gave women an obligatory share, it made for the male a portion equal to that of two females, as men are burdened with many costs, liabilities, expenditures, and so on [^16]. The man bears the responsibility of supporting the family, including the daughters, so that legislation was perfectly consistent with that responsibility and the financial burden placed on his shoulders.
Following this upright path, previous scholars understood the texts regarding women's inheritance and applied them according to their clear literal meanings. They had no role in them except for what appeared in the attempts of some to rationalize the ruling in the manner mentioned above. The Sharia rulings stipulated in the issue of women's inheritance do not fall outside the scope of texts that are definitive in their authenticity (Qat'i al-Thubut) and definitive in their meaning (Qat'i al-Dalala). On this basis, they are not subject to nor capable of a new interpretation or another understanding far from that path. The role of the intellect is determined according to the nature of the text's indication in terms of being definitive or speculative. The texts regarding women's inheritance are definitive in their transmission since they are collectively Quranic verses, and definitive in their indication since no meaning can be understood from the text other than the halving of her share; it is estimated and defined, so the role of the intellect is confined to this limit. Rulings extracted from these texts and their like may not be changed or bypassed [^17] based on changes in time or place.
Accordingly, legal theorists (Usuliyyun) held that every text definitive in its indication of its meaning—such that it becomes "explained" (mufassar) where the Lawgiver's intent is clear without ambiguity or obscurity—cannot be subject to independent reasoning (Ijtihad); rather, it is prohibited. This includes texts related to creeds, acts of worship, fixed quantities like expiations (kaffarat), prescribed punishments (hudud), inheritance shares, and texts related to the pillars of virtues, general rules, and the essentials of Sharia—everything established as a necessity of the religion [^18].
If there were any possibility of change or modification in those rulings derived from the explicit texts of the Holy Quran, it would have been more appropriate to maintain the prevailing rulings at that time, which required the absolute deprivation of women from inheritance. Keeping people in their familiar conditions is much easier than changing them. However, Islamic Sharia, with its just rulings, while taking social circumstances into account, came to correct the corrupt ones and change everything that contradicts the value of justice within them. In all of this is a clear indication that these rulings came to stay and did not come for a specific period or a particular society.
Interpretation of Women's Inheritance Texts among Contemporaries:
The matter of interpreting texts related to women's inheritance began to take on new dimensions different from what was the case in those virtuous eras. Many customs contrary to Sharia teachings gradually infiltrated various Muslim societies until they were able to voice the call for absolute equality between men and women in various fields. The effects of these historical and social circumstances and conditions appeared clearly in the thought of many contemporary writers who saw in the inheritance texts an explicit opposition to the claims of absolute equality between women and men, women's liberation, and their rights that had begun to spread in their societies.
The reality is that these claims first appeared and were proposed by a number of Orientalists. They raised the issue of halving women's inheritance on the basis that it is a type of discrimination and differentiation between men and women. They considered the rulings of Islamic Sharia as reinforcing this discrimination and clear evidence of Islam's disregard for women's dignity and humanity and the stripping of their legitimate rights!
Much of this literature stood before the Quranic texts related to inheritance in the position of a researcher for a new interpretation of those texts through which it could keep pace with and accompany the rising intellectual and social trends and circumstances of that time. Thus, they approached the inheritance texts with preconceived visions, interpreting those texts according to those ideas and visions—an interpretation that in some cases reached the point of arbitrariness and attempts to twist the meanings of the texts to pass those ready-made interpretations and ideas.
Some writers went as far as to say that the texts related to women's inheritance were revealed in a Jahiliyyah environment that suppressed women's rights and recognized no share for them at all. Therefore, it was necessary to gradually legislate women's inheritance and impose it on that Jahiliyyah environment. Thus, the Quranic verse was revealed establishing the right of halving as an initial stage, to be followed by others, and subsequent societies must take this into account—meaning, completing the process of gradual legislation in accordance with societies and their development.
This view appeared and prevailed initially among a number of Western Orientalists who saw Islamic Sharia as merely an evolved state of the Jahiliyyah law prevailing among the Arabs at that time. As stated by Coulson in his book Succession in the Muslim Family:
"Within the framework of the Islamic system as a whole the laws of succession occupy a particularly prominent and important position. Historically they provide an excellent example of the general process of legal development in Islam, under which new standards and precepts introduced by the religion were super-imposed upon existing customary law and the two heterogenous elements gradually fused and welded together into a composite and cohesive system" [^19]
Islamic Sharia—especially regarding family and inheritance regulations—derived its rulings, in their view, from the tribal system and Jahiliyyah customs. This is despite the fact that the Arabs in Jahiliyyah—as the study previously indicated—did not grant women anything in inheritance, and inheritance was based on the ability to support and defend the tribe [^20]. These individuals were influenced by the philosophy of the evolution of religions and creeds that prevailed in Western thought during the nineteenth century AD [^21].
Intellectual and Social Conditions Affecting Contemporary Interpretation of Women's Inheritance Texts:
First: The Impact of Darwinian Evolutionary Philosophy on Religions:
The Darwinian theory of organic evolution had the furthest and deepest impact on social thought in the West. Many writers at that time believed in the necessity of similarity between human societies and biological evolution. This theory traces its roots to the proponents of the doctrine of progressive or ascending evolution that prevailed in Europe in the nineteenth century in more than one branch of science. A number of scholars attempted to apply it to religions, including Spencer, Tylor, Frazer, Durkheim, and others [^22].
This is evident in the trends of the Reform or Enlightenment movement in Judaism in Germany in 1845 AD when it issued its primary philosophy based on the idea that Judaism is a developmental religion that always conforms to the requirements of time and place, and that Jews are not a nation committed to its religious-political law but are only committed to the constraints of moral law. Consequently, those rituals that stood in the way of full Jewish participation in social and political life in Germany no longer correctly expressed the truth of the Jewish religion. The Encyclopaedia Britannica states in describing this position:
"Judaism was declared had always been a developmental religion that conformed to the demands of the times, and since the jews were not now a nation, there were no longer, bound by their entire religious- political code of law, but only by the dictates of moral law. Thus those rituals which stood in the way of full jewish participation in German social and political life were no longer considered valid expressions of jewish religious truth" [^23]
This clinging to the philosophy of evolution in the Reform movement in Judaism led to the dropping of all Sharia rulings regarding the permissible (halal) and the forbidden (haram). In 1885 AD, the philosophy of the Reformers gave its most comprehensive formulation at the Pittsburgh Platform. It was declared that Judaism is a Western developmental religion and that the Talmud is merely religious literature, not legislative law. These principles and teachings of the Pittsburgh Platform remained the official philosophy of the Jewish Reform movement for subsequent generations [^24].
The application of evolutionary theory also resulted in various theories of projection by Auguste Comte, who ultimately argued that religion and philosophy had passed through obsolete and extinct stages, and there was no room to consider revelation as a source of knowledge; religion has projections, and there is no explanation for general and private existence except through positive material science.
As for Muslim societies, the leadership of this call was taken up by many Orientalists who called for the development of Muslim society and the pushing of Westernization processes in various fields, calling all classes of society to participate in this, each through their work, on the basis that religion and its rulings have begun to evolve and progress, and that social life is capable of bringing about evolution in various Islamic concepts, including women's inheritance [^25].
Islamic Sharia, in the view of a number of these Orientalists, is nothing but an evolved state of the familiar law and prevailing custom before Islam, which was modified mainly outside the land of the Arabs. The customary law at that time was not collected in a merely random manner, but rather based on some previous principles and procedures, embodied in the form of rulings and legislations. Robert refers to this opinion in his work Customary and Shariah Law in Arabian Society:
"The author regards Shariah as developed from pre-Islamic customary law, mainly outside Arabia, which is modified, sometimes to a quite considerable extent. Customary law which is no mere, semi-random assemblage of precedents, is based on certain principles and procedures, sometimes embodied in maxims" [^26]
Among the famous Orientalists who adopted this trend were also Ignaz Goldziher [^27] and Wilfred Cantwell Smith. The latter went as far as to say that Islam passed through many stages of doctrinal and legislative evolution, and therefore, the rulings of Islam must be changed according to the change of time and circumstances.
However, this did not prevent the prevalence of the truth and authenticity of Islamic Sharia rulings and their derivation from the fixed, infallible revelation. Some fair-minded individuals in Western thought noticed this fact and emphasized the difference between Islamic Sharia and all prevailing positive laws, as stated in the Encyclopaedia Britannica: "The Sharia differs from legal systems in the West in two fundamental respects: First, the scope of the Sharia is much wider; it does not stop at defining a person's relationships with their relatives, neighbors, and the state only, as is the case in other laws, but extends to include defining their relationship with their Creator as well. As for the fundamental difference between the Sharia and Western laws, it lies in the Islamic concept of law as an expression of pure divine will. Unlike secular legal systems that grow out of society and its changes and circumstances, Sharia was imposed upon society from a higher will. Accordingly, in the science of Islamic legislation, society does not intervene to design the law and its course; rather, the law is what controls the course of society and dominates it."
"The Shariah differs from Western systems of law in two principles respects. In the first place the scope of the Shariah is much wider, since it refulates man's relationship not only with his neighbours and with the state, which is the limit of most other legal systems, but also with his God and his own conscience. The major distinction between the law as the expression of the divine will. Unlike secular legal systems that grow out of society and changes with the changing circumstances of society. Shariah law was imposed upon society from above. In Islamic jurisprudence it in not society that moulds and fashions the law, but the law that precedes and controls society" [^28] [^31]
However, the philosophy of evolution found listening ears among a number of authors in Muslim societies, who followed this path in their writings, especially those related to women and their rulings. Thus, legislations related to women—such as inheritance, testimony, and others—were viewed as having relative value that should only be understood within the historical framework and prevailing customs at the time of their revelation, and that the fault is not in them, but in those who adopt them and consider them a religion.
"These legislations are not understood except in their historical framework within the tribal customs in the Arabian Peninsula in the framework of a society where sovereignty and control belonged to the man, and the method of behavior in it was to derive rulings from texts. It was a society of authority, not a society of liberation; a society of social control, not a society of social mobility. The fault is our fault—that we imagined the changing to be fixed, that time had stopped, and that history is eternal. We sanctified human interpretations, turned customs into laws, and considered traditions as Sunnahs, compensating for our sense of helplessness and weakness by glorifying the ancients and sanctifying the Sharia, ignoring the eras and placing ourselves outside of time" [^29].
But the tribal society was not the determinant for halving women's inheritance originally; rather, the Quranic text is what brought this legislation. It did not happen in that period that society became the legislator; rather, Islam came upon various prevailing tribal rulings and abolished everything that contradicted its rulings and legislations issued from the texts of the Holy Quran and the authentic Prophetic Sunnah.
The wisdom behind this ends with the end of the tribal social system itself, just as inheritance in an Islamic society can be invested before death due to the society's need for investment. If the Prophet is a role model, then he does not inherit nor is he inherited from, and everything in excess of need belongs to the benefit of society and not for the benefit of individuals, even if they are of the same lineage, for the Ummah is the greater and more general lineage" [^32].
This interpretation of inheritance texts reflects a clear influence by the prevailing philosophies aimed at claiming the historicity of Quranic texts and their dependence on the time and place in which they were revealed. Religion, in their view, is history and not transcendent or outside of it. Thus, the fixed rulings of religion through the texts of revelation were viewed as having relative historical value subject to the law of change and evolution [^33].
Second: The Spread of Equality Thought and the Call for Women's Liberation:
The feminist trend emerged in liberal capitalist society as a movement for women's liberation and the call for their absolute equality with men in the nineteenth century as a result of the deterioration of women's conditions under the Industrial Revolution and what followed. In 1966 AD, the National Organization for Women (NOW) was established in the United States of America to demand equal rights for women.
Anyone tracing the history of women in Western thought witnesses the explosion of many detestable practices toward them over long historical periods. These practices were carried out based on deep-rooted rules in the Western mindset whose pillars were born and whose roots were concentrated by Greek myths and Roman traditions on one hand, and the teachings and sayings of the Old Testament and Paul on the other, represented in their deep-seated hostility toward women as the heirs of Eve in tempting humans and leading them into vice and causing Adam (peace be upon him) to be expelled from Paradise [^34].
Thus, the feminist trend since its inception has played a role counter to and contradicting the role of the Church and its men. The winds of the feminist trend spread to many regions of the world, especially those that fell under Western occupation in the mid-nineteenth century and thereafter. That trend, with its various claims, received wide support from the United Nations, which in 1945 AD announced the first international document adopting equal rights between men and women.
While those trends and movements calling for women's liberation in the West had their justifications as a result of the historical and social circumstances that women suffered in the West, these movements and claims lose the justification for their dissemination or existence originally in Muslim societies. Those movements in the West arose in rebellion against distorted teachings and human sayings and behaviors controlled by selfishness and ignorance. A number of fair-minded people in the West realized this fact; the moderate writer Walther pointed to this by saying: "These people—meaning the advocates of liberation and equality in Muslim societies—have formed conceptions about European society expressing the apparent freedom enjoyed by women there. However, they did not realize the extent of the violations suffered by women in Europe, nor did they realize the situation of women in their own societies. Accordingly, they implicitly directed fingers of blame and accusation at the teachings of Islam as a result of women's suffering."
"They have preconceived notions about European society, and idealized the seeming freedoms women enjoyed there. They neither knew the European abuses from which European women suffered, nor did they have any understanding of the plight of women in their own societies. They tacitly blamed Islam for many of the ills from which women suffered" [^35]
Anyone looking at the legislative system in Islam notices the loss of legitimacy and justification for the emergence and adoption of those movements and claims in Muslim societies. The legislations and rulings specific to women in Islam were based on texts that have not been subject to distortion or alteration, and values of justice and equality were observed in them from the outset because they are from the All-Knowing, All-Aware. As for what is attributed to Islam of some deviant behaviors or interpretations and customs originally contrary to its teachings, this is all a matter of loose usage and confusion between the religion with its just rulings and legislations, and the method of understanding and interpreting those teachings and legislations, which can be subject to error, deviation, and bypass due to their human nature and their susceptibility to correctness and error in their interpretations and behaviors. Criticism should be directed toward those applications and violations that few nations are free from, not toward the teachings that are purified from every defect or violation.
Thus, a number of advocates of equality in Muslim societies adopted distant interpretations of inheritance texts based on their preconceived thought built on the call for women's liberation and their absolute equality with men. They argued that Islam did not establish the reduction of women's inheritance compared to men as one of its principles that cannot be bypassed; it equated women and men in many matters. Islam, in its essence, does not object to establishing this equality in all its aspects whenever the causes of superiority end and the means necessitating that are provided [^36].
These intellectual and social conditions paved the way for the claim that Islam, through its legislations for women, established the thought of discrimination and differentiation between men and women. Many writers resorted to citing some texts and rulings brought by Islam, cut off from the context in which they were mentioned, and interpreted them according to that view only!! They resorted to texts that made women's inheritance and testimony half that of men and allowed polygyny for men... [^37].
Some of this literature also moved toward the idea that those Sharia texts, with the legal principles they contained, were within a specific cultural, economic, and social context. Now that that context and those cultural, social, and economic conditions have changed, the texts are no longer a reason for the legitimacy of differentiation and discrimination between men and women at all... "The rulings of legislation in the Quran are not absolute and were not abstract absolute legislation; every verse related to a specific incident is specified by the reason for revelation and is not absolute. All verses of the Quran were revealed for reasons—meaning for causes that necessitated them, whether they included a Sharia ruling, a fundamental rule, or a moral system. They are temporary and local rulings that apply at a specific time and in a particular place... With the death of the Messenger ﷺ, revelation ended, inspiration ceased, authentic Hadith stopped, and thereby the divine legislative authority fell silent" [^38].
"...It is easy here to consider this ruling (i.e., halving women's inheritance) as dependent on social and historical conditions, and it is easy to take into account the changes that have occurred over fifteen centuries, and move with the direction of the text's movement to decide that the woman has a share equal to the male's without having fallen into the sin of violating the basic principles of Sharia, at the head of which is equality" [^1] (from page 23, same reference [^1] as Nasr Abu Zayd above).
Anyone reflecting on the rulings of inheritance and the determination of shares, including women's inheritance, notices that they are among the issues that Sharia rarely addressed in detail except to resolve the matter of expected dispute in such cases, to preserve the social and family structure throughout times and ages, and to emphasize their non-susceptibility to being subjected to the fluctuations of temporal and spatial circumstances. Accordingly, the interpretations of previous scholars had no share in them, nor did social or historical circumstances have a place; human Ijtihad was confined to the framework of attempting to understand the wisdom behind the legislation, nothing more. This is because the texts regarding the issue of inheritance—as we previously indicated—are definitive in their authenticity and indication, and the role of Ijtihad is limited within that ceiling. Society, in any circumstance, did not have sovereignty over Sharia texts; rather, Sharia came as a judge, corrector, and refiner for various aspects of life and social conditions. Furthermore, the claim that the rulings of the Holy Quran came for a society with its own foundations and ties is a claim that leads to judging Islam as regional and undermines the universality of its message and its inherent suitability for every time and place by confiscating the rulings of Sharia and judging them as echoes of historical and social conditions that time has surpassed.
Arabic References (continued from page 25):
- Al-Ashmawi, Muhammad Said, 1989, Ma'alim al-Islam (Landmarks of Islam), Cairo.
- Abu al-Aynayn, Badran, n.d., Ahkam al-Tarikat wa al-Mawarith fi al-Sharia al-Islamiyya (Rulings of Estates and Inheritances in Islamic Sharia), Egypt: Mu'assasat Shabab al-Jami'a.
- Al-Qaradawi, Yusuf, 1413 AH - 1992 AD, "Hiwar hawla al-Alaqa bayna al-Nass wa al-Ijtihad" (Dialogue on the Relationship between Text and Ijtihad), Yearbook of the Faculty of Sharia and Islamic Studies, (Issue 10), pp. 36-45.
- Al-Nadim, Muhammad bin Ishaq Abu al-Faraj, 1398 AH, Al-Fihrist, Beirut: Dar al-Ma'rifa.
- Al-Nawawi, Yahya bin Sharaf, n.d., Sharh Sahih Muslim, Beirut: Dar Ihya al-Turath al-Arabi, 2nd Edition.
Encyclopedias:
- Britannica Encyclopedia. 1999. Inc. CD-ROM.
- The Oxford Encyclopedia of the Modern Islamic World. 1985. Oxford: Esposito, John.
English Language References:
- Carmody, Denise. 1989. Women & World Religions. New Jersey: Prentice Hall Inc.
- Coulson, N. J. 1971. Succession in the Muslim Family. Cambridge: University Press.
- Janeway, Elizabeth. 1971. Man's World, Woman's Place. New York: William Morrow and Company.
- Sabrosky, Judith. 1973. From Rationality to Liberation: The Evolution of Feminist Ideology. London: Greenwood Press.
- Schacht, Joseph. 1991. An Introduction to Islamic Law. Oxford: Clarendon Press.
- Schmidt, Alvin J. 1989. Veiled and Silenced. Georgia: Mercer University Press.
- Serjeant, R. B. 1991. Customary and Shariah Law in Arabian Society. Britain: Galliard Printers LTD.
- Walther, Wiebke. 1993. Women in Islam from Medieval to Modern Times. New York: Markus Wiener Publishing.
Footnotes:
[^1]: (*) PhD in Jurisprudence and its Principles. Assistant Professor in the Department of Arabic Language and Islamic Studies / University of Bahrain. She has numerous researches, articles, and books, including: The Effect of Custom in Understanding Texts, Family Rulings between Islam and Western Traditions, Contemplating the Holy Quran between Theory and Practice... and others. She has many participations in various conferences and seminars in a number of Arab and Islamic countries and others.
[^2]: The Holy Bible: Old Testament and New Testament, Bible Society in the Middle East, Lebanon, 1933 AD. Deuteronomy: 21 / 15-17.
[^3]: Numbers: 27 / 1-11.
[^4]: Regarding inheritance among the Greeks and Romans, see: Al-Shafi'i, Al-Mirth fi al-Sharia al-Islamiyya, University Culture Foundation, Egypt, 1983 AD, p. 1 and following. And the following Arabic references: Abu al-Yaqzan al-Juburi, Hukm al-Mirth fi al-Sharia al-Islamiyya, Dar al-Nadwa al-Jadida, 1st ed., Beirut, 1406 AH - 1986 AD, p. 11 and following. Badran Abu al-Aynayn, Ahkam al-Tarikat. Britannica Co, "Inheritance and Succession: Historical development."
[^5]: Badran Abu al-Aynayn, previous reference, p. 18.
[^6]: {They ask you for a legal verdict concerning women. Say: Allah directs you concerning them...} [An-Nisa: 127]. Al-Jassas, Ahkam al-Qur'an, edited by: Muhammad al-Sadiq Qamhawi, Dar Ihya al-Turath al-Arabi, Beirut, 1405 AH: Vol. 2, p. 6.
[^7]: This phrase was quoted by some authors from Abu Ja'far Muhammad bin Habib al-Baghdadi (d. 145 AH); he has several books, including: Al-Mukhtalif wa al-Mu'talif fi Asma' al-Qaba'il. See his biography in Hajji Khalifa Mustafa bin Abdullah (1076 AH), Kashf al-Zunun an Asami al-Kutub wa al-Funun, Dar al-Kutub al-Ilmiyya, Beirut, 1413 AH, Vol. 1, p. 614, and also Muhammad bin Ishaq Abu al-Faraj al-Nadim, Al-Fihrist, Dar al-Ma'rifa, Beirut, 1398 AH - 1978 AD, Vol. 2, p. 155. See Badran Abu al-Aynayn, previous reference, p. 18, who quoted al-Baghdadi's phrase and mentioned that Amir bin Jusham gave the daughter one share and the male two shares; it appears he equated them in inheritance, and it is not as the author quoted, indicating Amir bin Jusham's agreement with the ruling of Islam later. See: Ahmad Mahmoud al-Shafi'i, previous reference, p. 19. See regarding this narration: Ahmad bin Ali bin Hajar al-Asqalani (852 AH), Fath al-Bari Sharh Sahih al-Bukhari, edited by: Muhammad Fuad Abdul Baqi and Muhib al-Din al-Khatib, Dar al-Ma'rifa, Beirut, 1379 AH, Vol. 16, p. 15.
[^8]: See for example, Abdul Hadi Abbas, Al-Mar'a wa al-Usra fi Hadarat al-Shu'ub wa Anzimatiha, Tlass, Damascus, 1987 AD, p. 540. Ahmad Mahmoud al-Shafi'i, previous reference, p. 18.
[^9]: Al-Jassas, Ahkam al-Qur'an, previous reference, Vol. 2, p. 2.
[^10]: Surah An-Nisa, Verse 7 (in the original text there was an error in the verse number; this is verse 7, not 6).
[^11]: Surah An-Nisa, Verse 11.
[^12]: Surah An-Nisa, Verse 11 (the quoted text is part of verse 11, not 12).
[^13]: Muhammad bin Jarir al-Tabari, Jami' al-Bayan an Ta'wil Ay al-Qur'an, Dar al-Fikr, Beirut, 1405 AH, Vol. 4, p. 275, and cited by Abu al-Fida Ismail bin Kathir, Tafsir al-Qur'an al-Azim, Isa al-Babi al-Halabi Press, Egypt, 1963 AD, Vol. 1, p. 459.
[^14]: Al-Jassas, previous reference, Vol. 2, p. 8.
[^15]: For more details on inheritance in contemporary books, see: Wahbah al-Zuhayli, Fiqh al-Mawarith fi al-Sharia, Dar al-Qalam, Dubai, 1407 AH - 1987 AD. Also Shawqi al-Sahi, Mawsu'at Ahkam al-Mawarith, Dar al-Hikma, Damascus and Beirut, 1408 AH - 1988 AD, p. 19 and following.
[^16]: Al-Nawawi (676 AH), Sharh Sahih Muslim, Dar Ihya al-Turath al-Arabi, Beirut, 2nd ed., n.d., Vol. 11, p. 53.
[^17]: A number of contemporary authors addressed this issue; see for example: Yusuf al-Qaradawi, "Hiwar hawla al-Alaqa bayna al-Nass wa al-Ijtihad", 1413 AH - 1992 AD, Yearbook of the Faculty of Sharia and Islamic Studies, (Issue 10), p. 36.
[^18]: Fathi al-Durayni, Al-Manahij al-Usuliyya fi al-Ijtihad bi al-Ra'y fi al-Tashri' al-Islami, United Distribution Company, Syria, 1405 AH - 1985 AD, 2nd Edition, pp. 19-20.
[^19]: N. J. Coulson, Succession in the Muslim Family, Cambridge University Press, Cambridge, 1971, p. 3. Joseph Schacht, An Introduction to Islamic Law, ibid., p. 62.
[^20]: See regarding this: Anwar al-Jundi, Min al-Taba'iyya ila al-Asala fi Majal al-Ta'lim wa al-Lugha wa al-Qanun, Dar al-I'tisam, Cairo, n.d., p. 54 and following. See regarding the response to that misconception: Abdul Karim Shahbun, Sharh Mudawwanat al-Ahwal al-Shakhsiyya al-Maghribiyya, Maktabat al-Ma'arif, Rabat, 1987 AD, Vol. 2, p. 275 and following.
[^21]: We have an article in Al-Bayan magazine about the philosophy of evolution and its impact on women's issues, to be published soon, Allah willing.
[^22]: Muhammad Abdullah Draz, Al-Din: Buhuth Mumahhida li Dirasat Tarikh al-Adyan, Dar al-Qalam, Kuwait, p. 107.
[^23]: Britannica CD, "Judaism."
[^24]: See regarding this the book of the well-known Jewish author Jacob Neusner, which cites the history of the Reform movement and its principles: Jacob Neusner, Judaism in Modern Times, Blackwell Publishers, USA, 1993, p. 67.
[^25]: Muhammad Muhammad Husayn, Al-Islam wa al-Hadara al-Gharbiyya, Mu'assasat al-Risala, Beirut, 5th ed., 1402 AH - 1982 AD, p. 147 and following.
[^26]: R. B. Serjeant, Customary and Shariah Law in Arabian Society, Galliard Printers LTD, Britain, 1991, p. 1.
[^27]: A Jewish Orientalist who lived between (1850 - 1921 AD), specialized in Islamic studies, especially creed, and produced many works not free from bias and distortion of the Islamic image and Muslims; among his most prominent works is Introduction to Islamic Theology and Law.
[^28]: Britannica CD, "Nature and significance of Islamic Law."
[^29]: Hassan Hanafi, Thuna'iyyat al-Jins am Thuna'iyyat al-Fikr, Dar Sina for Publishing, Egypt, 1993 AD, p. 42.
[^31]: Previous reference, p. 201. Quoted from the book: Muhammad Muhammad Husayn, previous reference, p. 147 and following.
[^32]: Hassan Hanafi, previous reference, p. 40.
[^33]: See also what Muhammad Shahrur wrote in the same context: Muhammad Shahrur, Al-Kitab wa al-Qur'an: Qira'a Mu'asira, Al-Ahali for Printing, Publishing, and Distribution, Damascus, 2nd ed., 1990 AD, pp. 40-44.
[^34]: For all the details, see: Alvin J. Schmidt, Veiled and Silenced, Mercer University Press, Georgia, 1989, pp. 45-51. Denise Lardner Carmody, Women & World Religions, Prentice Hall Inc, New Jersey, 1989, p. 174. Judith A. Sabrosky, From Rationality to Liberation: The Evolution of Feminist Ideology, Greenwood Press, London, 1973, pp. 13-19. Elizabeth Janeway, Man's World, Woman's Place, William Morrow and Company, New York, 1971, pp. 7-26.
[^35]: Wiebke Walther, Women in Islam from Medieval to Modern Times, Markus Wiener Publishing, Princeton & New York, 1993, p. 9.
[^36]: Nasr Abu Zayd, Qanun al-Ahwal al-Shakhsiyya, previous reference, p. 277. (The reference referred to is "Personal Status Law in Tunisia between Assumed Secularism and Roots of Islamic Heritage" within the book Al-Mar'a Hajar).
[^37]: The Oxford Encyclopedia of the Modern Islamic World, Vol. 4, p. 323.
[^38]: See their statements in: Al-Tahir al-Haddad, Imra'atuna fi al-Sharia wa al-Mujtama', Tunisian Publishing House, Tunisia, n.d., p. 39; Abdul Majid al-Sharqi, Al-Islam wa al-Hadatha, Tunisian Publishing House, Tunisia, 2nd ed., 1991 AD, p. 225 and following. See also: Muhammad Shahrur, previous reference, p. 102; Nasr Abu Zayd, "Personal Status Law in Tunisia between Assumed Secularism and Roots of Islamic Heritage", Al-Mar'a Hajar (Edited), Dar Sina for Publishing, Egypt, 1992 AD, p. 267.