Issue Fifty-Six, Year Fourteen - Rajab, Sha'ban, Ramadan 1423 AH - November, December 2002, January 2003

In This Issue

Biographies and Profiles

Investing Zakat Funds in Revenue-Generating Projects for the Benefit of Recipients. Dr. Saleh bin Zaben al-Marzouqi.
The Impact of Death on Documentation Contracts in Islamic Jurisprudence. Dr. Adlan bin Ghazi al-Sha'rani.
Women's Inheritance in Islam between Text and Interpretation. Dr. Ruqayya Taha Jaber al-Alwani.

Fatwas of the Jurists

The conditions of the endower (waqif) are binding if they do not contradict Sharia.
Sale of clearance (Bay' al-Bara'ah).
Caution in testimony.
Ruling on disputes between the homeowner and the tenant regarding parts of the rented house.

Issues in Jurisprudence

Khat: Its ruling and what has been said about it.
The ruling on the foundling (abandoned child) and their rights.
The ruling on using a compass to determine the Qibla.
Partnership in water between absolute and restricted use.
The ruling on one who intentionally abandons prayer then repents, and their obligation regarding making up missed prayers.

Books and Treatises in Jurisprudence and its Principles.

Women's Inheritance in Islam between Text and Interpretation

Dr. Ruqayya Taha Jaber al-Alwani[^5]

Introduction:

Recently, discussions regarding women's issues and related legal rulings have increased. From the halving of her testimony to her inheritance and other matters, these topics are being presented as a gateway to challenge Islam's stance on women. In fact, some of these issues are presented as eyewitness evidence of Islam's alleged suppression of women's rights, insult to her humanity, and degradation of her dignity!

Literature defending women emerged during a period dominated by the writings of some Orientalists and others who targeted the position of women in Islam and contested her status within it. Those writings attempted to characterize the Muslim woman as suffering from injustice and marginalization due to her adherence to Sharia teachings—teachings that have never ceased to provide justice regarding her inheritance and testimony. Some even went as far as attacking traditions and customs completely unrelated to Sharia teachings, claiming they represent Islam and its eternal rulings and legislation.

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 mitigate the impact of that violent intellectual campaign.

The issue of women's inheritance is one of the matters that has surfaced in many writings and literatures, sparking widespread intellectual and social storms, to the point that questioning it anew has become familiar to many contemporary authors and writers. What is the nature of the social and intellectual circumstances that gave rise to this environment suitable for raising the discussion on women's inheritance again? And what role do these circumstances play in provoking such issues?

This research aims to answer these questions by reviewing the issue of women's inheritance generally throughout history, passing through the matter of her inheritance among the Arabs before Islam, then examining the legislation of inheritance rulings in Islam and its underlying philosophy. Subsequently, it moves to the modern era to shed light on the historical and social circumstances that accompanied the increased interest in the issue of halving the woman'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.

Preamble:

The inheritance of wealth and the transfer of its ownership is a system brought by divine laws and followed by most human customs in 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.[^1a]

Women's Inheritance in Judaism:

The Jewish religion views the man as the axis of strength and protection, following the general principle of the male-centric nature of 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 characterized the Jews across the world. It also viewed the woman as the axis of sin and guilt on this earth; thus, inheritance rulings revolved around the male alone. The heir is the male child, whether born of a legal or illegal marriage. Inheritance is for the male, and the female does not inherit except in the absence of males.

The feature of discrimination among the male children themselves in Judaism is evident in the following passage from the Book of Deuteronomy:

"If a man has two wives, one beloved and the other hated, and they have borne him children, both the beloved and the hated; and if the firstborn son be hers that was hated: Then it shall be, when he maketh his sons to inherit that which he hath, that he may not make the son of the beloved firstborn before the son of the hated, which is indeed the firstborn: But he shall acknowledge the son of the hated for the firstborn, by giving him a double portion of all that he hath: for he is the beginning of his strength; the right of the firstborn is his."[^1b]

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."[^2]

As for inheritance between spouses, the husband has the right to the entirety of his wife's inheritance without sharing it with 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 never inherits from her children, but if she dies, the inheritance goes to her male children if she has any.[^1c]

The Christian system of inheritance followed what was practiced in Judaism until some Church Fathers established simple legislations regarding inheritance, mostly derived from the Jewish and Roman systems, which left 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 mobility, travel, frequent devastating wars, and tribal raids, in the absence of a central authority to ensure security and stability. Accordingly, the Arabs in the pre-Islamic era (Jahiliyyah) deprived children and women of inheritance due to their inability to bear the responsibility of defending 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, or other social relations. The tribe performed all religious, political, and judicial functions.

Inheritance among the pre-Islamic Arabs had several causes and conditions, including kinship. This applied 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 based on 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 gave inheritance to those who fought on horseback and seized booty... until Allah Almighty revealed: 'They ask you for a ruling concerning women. Say, Allah gives you a ruling...'"[^2a]

However, it was reported of some Arabs that they granted inheritance to daughters in certain cases, equating them with sons. Among them was Dhu al-Majased al-Yashkuri, 'Amir bin Jusham bin Habib.[^1d] Nevertheless, the general prevailing situation at that time necessitated, in their view, the absolute deprivation of females from inheritance. This was widespread among various Arab tribes and was considered justified; the woman needed protection and care in that society fraught with aggression, wars, and raids, and the man was the one capable of fulfilling that role. Thus, giving inheritance to the man instead of her was acceptable and had its justifications, as they only granted inheritance to those who carried weapons, seized booty, and fought on horseback.[^3a]

The Philosophy of Inheritance in Islamic Sharia:

The inheritance system prevailing among the Arabs continued to be practiced in the early days of Islam because 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 al-Jassas (may Allah have mercy on him) mentioned in Ahkam al-Qur'an: "The people in the early days of Islam—after the Prophet's ﷺ mission—remained as they were in Jahiliyyah regarding marriage, divorce, and inheritance until they were moved to something else by Sharia. The Messenger of Allah affirmed the people in what he found them practicing of divorce, marriage, or inheritance."[^1e]

The affirmation of women's inheritance in Islam came in numerous Quranic verses depending on the woman's position and her kinship to the deceased. The share of the daughter with her brother was defined by the Almighty's saying: {Allah instructs you concerning your children: for the male, what is equal to the share of two females}.[^2b] He also granted the wife an inheritance and assigned her a fixed share. The 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 his parents, for each one of them is a sixth...}.[^2c]

Inheritance rulings—later known as the science of Farā'id (obligatory shares)—received immense 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 recipients, 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 fundamental objective upon which the inheritance system was originally based: safeguarding the bond of kinship and its ties from any fracture or disintegration.

This change in the inheritance system was not welcomed or accepted 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 obligatory shares were revealed, in which Allah ordained what He ordained for the child (male and female) and the parents, the people or some of them disliked it and said: "A woman is given a quarter or 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 child inheritance when he is of no use?" They used to do that in Jahiliyyah; they only gave inheritance to those who fought, and they gave it to the eldest.[^3b]

Islam progressed in inheritance rulings because it emerged 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 noted—was that inheritance was for men, as the defense of the clan and tribe fell upon their shoulders. Narrations in the books of exegesis (Tafsir) depicted the prevailing situation and social conditions people were accustomed to, involving the absolute deprivation of women from any share of inheritance, whether from a father, husband, or son. Tafsir books also narrated the complaints raised to the Prophet ﷺ by several 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 community of the necessity to discard and abandon Jahiliyyah customs that dictated depriving women of inheritance due to their lack of contribution to the clan's maintenance and defense.[^1f]

From here, Islam first began by establishing the right of inheritance for these vulnerable groups and proving their entitlement to inheritance, whether it be much or little. With this regulation, it struck at the pillar of the inheritance system in Jahiliyyah. The 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}.[^2d]

When Islam granted women the right to inheritance, it thereby nullified Jahiliyyah customs and the unjust cultural accumulations and legacies inherited from previous nations in their tyranny against women. It also struck down all customs contradicting the objectives of its teachings and Sharia based on justice. Thus, the texts of inheritance became decisive over corrupt customs and unjust habits despite their deep roots in the souls and their dominance over society at that time. By doing so, it laid the pillars and foundations 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—ancestors, descendants, collateral relatives, and kin—finds specific, fixed, and clear shares, considering that the inheritance system in Islamic Sharia is a means of maintaining kinship ties and a continuation of the legitimacy of known property transfer.[^1g]

When Islamic legislation gave women a fixed share, it made for the male the equivalent of the share of two females, as men are burdened with many costs, liabilities, expenses, and so on.[^3c] 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 upon him.

Following this upright path, previous scholars understood those texts regarding women's inheritance and applied them according to their clear literal meanings. They had no role in them except for the attempts of some to explain the wisdom behind the ruling as 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 both authenticity and meaning (qat'i al-thubut wa al-dalalah). On this basis, they are not subject to or capable of new interpretation or another understanding distant from that path. The role of reason is determined by the nature of the text's indication in terms of being definitive or speculative. The texts regarding women's inheritance are definitive in origin, as they are collectively Quranic verses, and definitive in meaning, as nothing can be understood from the text other than the halving of her share; it is measured and specified, so the role of reason is confined to this limit. Rulings extracted from these texts and their likes may not be changed or bypassed[^1h] based on changes in time or place.

Accordingly, jurists (Usuliyyun) held that any text definitive in its indication of meaning—such that it becomes self-explanatory and the Lawgiver's intent is clear without ambiguity—cannot be subject to Ijtihad (independent reasoning); rather, it is prohibited. This includes texts related to creeds, acts of worship, prescribed amounts for expiations (kaffarat), legal punishments (hudud), inheritance shares, and texts related to the core virtues, general principles, and foundations of Sharia—everything known from the religion by necessity.[^2e]

If there were any conception of the 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 dictated 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 incompatible with the value of justice within them. All of this clearly indicates that these rulings were meant to remain and were not intended 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 seeped into various Muslim societies until they were able to launch calls 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 calls for absolute equality between women and men, women's liberation, and her rights that were spreading in their societies.

The reality is that these calls 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 Islamic Sharia rulings as reinforcing this discrimination and clear evidence of Islam's disregard for women's dignity and humanity and the stripping of her legitimate rights.

Many of these literatures stood before the Quranic texts related to inheritance in the position of a researcher seeking a new interpretation of those texts through which they could keep pace with the rising intellectual and social trends and circumstances of the time. Thus, they approached the inheritance texts with preconceived visions, interpreting those texts according to those ideas and visions—an interpretation that sometimes reached the point of arbitrariness and attempts to twist the meaning of the texts to pass those ready-made interpretations and ideas.

Some writers argued 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—i.e., complete the process of gradual legislation in a way that accords with societies and their development.

This argument appeared and initially prevailed 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 Coulson stated 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"[^1i]

One who contemplates various circles of religious thought in Judaism, Christianity, and Islam as well, notices the attempt of many writers to subject religion and its rulings to the Darwinian philosophy of evolution, and to restate what the evolutionists discussed in a manner that contradicts everything brought in the divine books. Religion, in the view of these people, is an accumulation of cultural elements inherited from nations and peoples throughout history, meaning that religion is history and falls within its framework, not outside of it. Proponents of this trend equated religion with religious thought, which led them to view Sharia rulings fixed by revelation as having relative historical value subject to the law of change and evolution. These people did not distinguish between Sharia originating from a true divine religion whose source is divine revelation—which cannot, in its foundations and principles, be subject to evolution, substitution, or change due to its infallible divine reference—and the branches and details pertaining to people's lives in different societies, which are naturally subject to change, modification, and evolution according to people's needs and conditions. Thus, they considered Sharia rulings fixed by revelation to have relative historical value subject to the law of evolution and change.

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, and a number of scholars, including Spencer, Tylor, Frazer, Durkheim, and others, attempted to apply it to religions.[^1j]

This is evident in the trends of the Reform or Enlightenment movement in Judaism in Germany in 1845, when it issued its primary philosophy based on the idea that Judaism is an ever-evolving religion that conforms to the requirements of time and place, and that the 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 describes 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"[^1k]

This clinging to the philosophy of evolution in the Jewish Reform movement led to the dropping of all Sharia rulings regarding the permissible (halal) and the forbidden (haram). In 1885, the Reformers' philosophy gave its most comprehensive formulation at the Pittsburgh Platform. It was declared that Judaism is an evolutionary religion, meaning the Talmud is merely religious literature, not legislative law. Those principles and teachings of the Pittsburgh Platform remained the official philosophy of the Jewish Reform movement for subsequent generations.[^2f]

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 advancement of Westernization processes in various fields, inviting all classes of society to participate in that, each through their work, on the basis that religion and its rulings are undergoing evolution and progression, and that social life is capable of bringing about evolution in various Islamic concepts, including women's inheritance.[^1l]

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 mainly modified outside the Arabian Peninsula. Customary law at that time was not collected in a merely random manner, but based on certain prior principles and procedures, embodied in the form of rulings and legislations. Robert refers to this view 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"[^2g]

The application of the theory of evolution 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 specific existence except positive material science. Among the famous Orientalists who adopted this trend were Ignaz Goldziher[^3d] and Wilfred Cantwell Smith. The latter argued 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.[^1m]

However, this did not prevent the prevalence of the truth and authenticity of Islamic Sharia rulings and their derivation from fixed, infallible revelation. Some fair-minded thinkers in Western thought noticed this fact and emphasized that Islamic Sharia differs from all prevailing positive laws, as stated in the Encyclopaedia Britannica:

"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".[^1n]

"Sharia differs from legal systems in the West in two fundamental respects: First, the scope of Sharia is much wider; it does not stop at defining a person's relationships with their relatives, neighbors, and the state alone, 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 Sharia and Western laws, it lies in the Islamic concept of law as an expression of pure divine will. Unlike secular legal systems that grew out of society and its changes and circumstances, Sharia was imposed on society from the Supreme Will. Accordingly, in Islamic jurisprudence, 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 regulates 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. Sharia"[^1s]

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 her rulings. Thus, legislations related to women, such as inheritance and testimony, 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 religion. "These legislations are only understood 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 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 Sharia, considered traditions as Sunnahs, and compensated for our sense of helplessness and weakness by glorifying the ancients and sanctifying Sharia, ignoring the eras and placing ourselves outside of time."[^2h]

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 during that period that society became the legislator; rather, Islam came upon various prevailing tribal rulings and abolished everything that contradicted its rulings and legislations originating from the texts of the Holy Quran and the authentic Prophetic Sunnah. Furthermore, the method of behavior in a society—which is changing by nature—cannot be the source of fixed rulings and legislations. Fixed rulings and legislations, which are not subject to any change or substitution, are derived from fixed texts that transcend time and place, presiding over changing customs and circumstances. The fixed Sharia rulings based on Sharia texts found in the Holy Quran and the authentic Sunnah, revealed to humans from outside their societies, are not historical texts. This is unlike the customs and circumstances prevailing in societies, which are naturally subject to historicity and change.

Moreover, the claim that development can occur in the foundations and basics of Sharia implies the existence of a deficiency or defect in those rulings and that they collectively do not meet the needs of different societies throughout times and ages. All of this explicitly contradicts the nature of Islamic Sharia, which transcends the fluctuations of temporal and spatial circumstances; it is a Sharia suitable for every time and place.

Proponents of that path demanded the necessity of equality in inheritance between men and women, and that such equality is the ideal state that Muslim societies should follow after the winds of evolution and progress reached them. The previous status of women did not recognize her existence as a human being with the right to life; consequently, she had no right to property or inheritance. Sharia granted her the right to property, the right to retain her name after marriage, and the right to conduct buying and selling, and granted her half of what the man receives, which is considered progress toward equating women with men. Additionally, inheritance comes after debt and the will (up to one-third); a father can write a portion of the will for his daughter so that her inheritance equals the son's. Also, when a daughter moves to the marital home, she takes her inheritance with her, thus adding to the new family what the old family loses. Since pre-Islamic Arab society was a tribal society, the male was given the equivalent of the share of two females to preserve wealth from fragmentation and loss. This wisdom ends with the end of the tribal social system itself. Furthermore, 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, he neither inherits nor leaves inheritance, and everything in excess of need belongs to the society, not to individuals, even if they are of the same lineage, for the Ummah is the greater and more general lineage.[^1u]

This interpretation of inheritance texts reflects the clear influence of 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 rulings of religion fixed by the texts of revelation were viewed as having relative historical value subject to the law of change and evolution.[^2i]

Second: The Spread of Equality Thought and the Call for Women's Liberation:

The feminist movement emerged in liberal capitalist society as a movement for women's liberation and a call for her absolute equality with men in the nineteenth century as a result of the deterioration of women's conditions under the Industrial Revolution and its aftermath. In 1966, the National Organization for Women (NOW) was established in the United States to demand equal rights for women.

One who traces the history of women in Western thought witnesses the eruption of many loathsome practices against her over long historical periods. These practices were carried out based on deep-seated rules in the Western mindset, whose pillars were established and roots concentrated by Greek myths and Roman traditions on one hand, and the teachings and sayings of the Old Testament and Paul on the other, manifested in their deep-seated hostility toward women as the heir of Eve in seducing humans, leading them into vice, and causing Adam's (peace be upon him) expulsion from Paradise.[^1f_alt]

Thus, the feminist movement, since its inception, has played a role opposing and contradicting the role of the Church and its men. The winds of the feminist movement spread to many parts of the world, especially those that fell under Western occupation in the mid-nineteenth century and thereafter. That movement, with its various claims, received wide support from the United Nations, which in 1945 announced the first international document adopting equal rights between men and women.

"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".[^1s_alt]

One who looks at the legislative system in Islam notices the loss of legitimacy for these movements and calls, and the lack of justification for their emergence and adoption in Muslim societies. The legislations and rulings specific to women in Islam were based on texts that were not subject to distortion or substitution, and values of justice and equality were observed from the outset because they are from the All-Knowing, All-Aware. While those currents and movements calling for women's liberation in the West had justifications due to the historical and social circumstances women suffered in the West, those movements and calls lose the justification for their spread or existence originally in Muslim societies. Those movements in the West arose as a revolution against distorted teachings and human sayings and behaviors dominated by selfishness and ignorance.

A number of fair-minded people in the West realized this fact. The moderate writer Walther pointed this out by saying: "These people—meaning the advocates of liberation and equality in Muslim societies—formed conceptions about European society expressing the apparent freedom women enjoy there. However, they did not realize the magnitude of the violations women suffer in Europe, nor did they realize the situation of women in their own societies. Accordingly, they directed fingers of blame and accusation implicitly at the teachings of Islam as a result of women's suffering."

As for what is attributed to Islam of some deviant behaviors or interpretations and customs originally contradicting its teachings, this is all a matter of loose generalization 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 transgression due to their human nature and the possibility of correctness and error in their interpretations and behaviors. Criticism should be directed toward those applications and transgressions, which few nations are free from, not toward the teachings that are purified of every defect or transgression.

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 her absolute equality with men. They argued that Islam did not establish the halving of women's inheritance 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.[^1q]

Those intellectual and social circumstances paved the way for the claim that Islam and 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 out from the context in which they were revealed, and interpreted them according to that view only... so they resorted to texts that made the inheritance and testimony of women half that of men, and permitted polygyny for men...[^2k]

Some of that 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 this context and those cultural, social, and economic circumstances have changed, the texts are no longer a cause 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, i.e., for reasons necessitated by them, whether they included a Sharia ruling, a fundamental rule, or an ethical system. They are temporary and local rulings applicable at a specific time and in a specific place... With the death of the Messenger ﷺ, revelation ended, inspiration ceased, authentic Hadith stopped, and thus the divine legislative authority came to a halt."[^3e]

"It is easy 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."[^1r]

One who contemplates the inheritance rulings and the determination of shares, including women's inheritance, notices that they are among the issues that Sharia rarely addressed in detail, precisely to resolve the expected matter of dispute in such cases, to preserve the social and family structure throughout times and ages, and to emphasize their non-subjection to the fluctuations of temporal and spatial circumstances. Consequently, 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, because the texts regarding the issue of inheritance—as previously noted—are definitive in authenticity and meaning, and the role of Ijtihad is limited within that ceiling. Society, in any circumstance, never had sovereignty over Sharia texts; rather, Sharia came as a judge, corrector, and refiner of various aspects of life and social conditions.

Furthermore, the claim that the rulings of the Holy Quran were intended for a society with its own specific 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 Sharia rulings and judging them as echoes of historical and social circumstances that time has bypassed.

However, historical and social circumstances and the echoes of the call for equality and evolution combined with various incoming intellectual currents and the state of weakness that afflicted the Muslim mind in later ages in general, to produce a suitable environment in which many distant interpretations appeared, contradicting in their essence the Lawgiver's teachings and objectives. Societies in their periods of weakness and dissolution are permeated by the customs and traditions of the dominant elements within them, and the defeated is fond of imitating the victor. These interpretations and claims reached their peak; some writings went as far as declaring that Islam has degraded women's dignity and abolished her humanity by giving her half of the inheritance, and there is no hope for saving women given that the ruling of halving is taken from explicit, definitive, and sacred Quranic texts.[^1sh]

Conclusion

This study has yielded the following results:

The importance of understanding the historical conditions and the comparative intellectual and social currents accompanying the emergence of many issues related to women in particular. This importance appears when examining how thinkers address those issues, how they present them, and subsequently their rulings and interpretations regarding them.
The danger of some writers currently approaching texts with preconceived visions, resorting to the texts in an attempt to interpret them according to those ready-made visions as a result of their clear influence by the prevailing conditions and currents in their environments and societies.
The study clarified that a thinker being influenced by their environment, social customs, and lived historical circumstances is inevitable; however, all of this should not contest absolute Sharia texts that, in their absolute and sacred nature, transcend all circumstances and their relative fluctuations. The arbiter in this matter and others is the absolute texts, and interpretation remains centered around the jurisprudence of the text and the jurisprudence of reality.
It demonstrated the importance of employing comparative analysis in religious thought to contribute to solving many problems that may sometimes arise from not benefiting from the mistakes of others.
The study confirmed that Ijtihad does not apply to the sphere of definitive texts such as inheritance texts; they are definitive, presiding texts that transcend temporal and spatial circumstances.
The necessity of working to regulate the process of interpreting texts and adhering to it; freedom of opinion does not mean escaping from recognized regulations or rebelling against them. Accordingly, the new interpretation of those texts has become a paved path to exit the defined circle of the text into the broad circle of interpretation—that interpretation which took twisting the meaning of texts as a gateway to pass preconceived visions and ready-made ideas. Allowing such interpretations and leaving them without a process of regulation, review, and careful study could lead to a situation similar to what occurred in various circles of religious thought regarding the claim of the historicity of sacred texts and subsequently their nullification and abolition based on the end of the historical context in which they appeared. This matter allows for the passing of various social circumstances and customs distant from the objectives and teachings of Sharia and making them presiding over absolute texts, through the claim that those sacred texts are themselves historical texts limited by the social context in which they were revealed. Thus, temporal and spatial circumstances become presiding over the absolute text that transcends every circumstance, rather than the other way around.

List of References

The Holy Quran

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Al-Jassas. Ahkam al-Qur'an. 1405 AH. Edited by: Muhammad al-Sadiq Qamhawi, Beirut: Dar Ihya al-Turath al-Arabi.
Al-Jundi, Anwar. Undated. Min al-Taba'iyyah ila al-Asalah fi Majal al-Ta'lim wa al-Lughah wa al-Qanun (From Dependency to Authenticity in the Fields of Education, Language, and Law). Egypt: Dar al-I'tisam.
Hajji Khalifa, Mustafa bin Abdullah. Kashf al-Zunun 'an Asami al-Kutub wa al-Funun. Beirut: Dar al-Kutub al-Ilmiyyah.
Al-Haddad, al-Tahir. Undated. Imra'atuna fi al-Shari'ah wa al-Mujtama' (Our Woman in Sharia and Society). Tunisia: Al-Dar al-Tunisiyyah lil-Nashr.
Hussein, Muhammad Muhammad. 1402 AH - 1982. Al-Islam wa al-Hadharah al-Gharbiyyah (Islam and Western Civilization). Beirut: Mu'assasat al-Risalah, 5th ed.
Hanafi, Hassan. 1993. Thuna'iyyat al-Jins am Thuna'iyyat al-Fikr (Duality of Sex or Duality of Thought). Egypt: Dar Sina lil-Nashr.
Draz, Muhammad Abdullah. Undated. Al-Din: Buhuth Mumahhidah li-Dirasat Tarikh al-Adyan (Religion: Preliminary Research for the Study of the History of Religions). Kuwait: Dar al-Qalam.
Al-Darini, Fathi. 1405 AH - 1985. Al-Manahij al-Usuliyyah fi al-Ijtihad bi-al-Ra'y fi al-Tashri' al-Islami (Fundamentalist Methods in Reasoning by Opinion in Islamic Legislation). Syria: Al-Sharika al-Muttahida lil-Tawzi', 2nd ed.
Diab, Muhammad Ahmad. 1989. Adhwa' 'ala al-Istishraq wa al-Mustashriqin (Lights on Orientalism and Orientalists). Cairo: Dar al-Manar.
Al-Zuhayli, Wahbah. 1407 AH - 1987. Fiqh al-Mawarith fi al-Shari'ah (Jurisprudence of Inheritance in Sharia). Dubai: Dar al-Qalam.
Abu Zayd, Nasr Hamid. 1992. "Personal Status Law in Tunisia between Assumed Secularism and Roots of Islamic Heritage." Chapter in Kitab al-Mar'ah Hajar (The Book of Woman Hagar) (Ed.), Egypt: Dar Sina lil-Nashr.
Al-Sahi, Shawqi. 1988. Mawsu'at Ahkam al-Mawarith (Encyclopedia of Inheritance Rulings). Damascus: Dar al-Hikmah.
Shahrur, Muhammad. 1990. Al-Kitab wa al-Qur'an: Qira'ah Mu'asirah (The Book and the Quran: A Contemporary Reading). Damascus: Al-Ahali lil-Tiba'ah wa al-Nashr wa al-Tawzi', 1st ed.
Al-Shafi'i, Ahmad Mahmoud. 1983. Al-Mirath fi al-Shari'ah al-Islamiyyah (Inheritance in Islamic Sharia). Egypt: Mu'assasat al-Thaqafah al-Jami'iyyah.
Al-Sharfi, Abd al-Majid. 1991. Al-Islam wa al-Hadathah (Islam and Modernity). Tunisia: Al-Dar al-Tunisiyyah lil-Nashr, 2nd ed.
Shahbun, Abd al-Karim. 1987. Sharh Mudawwanat al-Ahwal al-Shakhsiyyah al-Maghribiyyah (Explanation of the Moroccan Personal Status Code). Rabat: Maktabat al-Ma'arif.
Al-Tabari, Abu Ja'far Muhammad bin Jarir. 1405 AH. Jami' al-Bayan 'an Ta'wil Ay al-Qur'an. Beirut: Dar al-Fikr.
Abbas, Abd al-Hadi. 1987. Al-Mar'ah wa al-Usrah fi Hadharat al-Shu'ub wa Anzimatiha (Woman and Family in the Civilizations of Peoples and Their Systems). Damascus: Tlass lil-Dirasat wa al-Tarjamah wa al-Nashr.
Al-Asqalani, Ahmad bin Ali bin Hajar. 1379 AH. Fath al-Bari Sharh Sahih al-Bukhari. Edited by: Muhammad Fuad Abd al-Baqi and Muhib al-Din al-Khatib. Beirut: Dar al-Ma'rifah.
Al-Ashmawi, Muhammad Sa'id. 1989. Ma'alim al-Islam (Landmarks of Islam). Cairo.
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Al-Qaradawi, Yusuf. 1413 AH - 1992. "Dialogue on the Relationship between Text and Ijtihad." Yearbook of the College of Sharia and Islamic Studies. (Issue Ten), pp. 36-45.
Al-Nadim, Muhammad bin Ishaq Abu al-Faraj. 1398 AH. Al-Fihrist. Beirut: Dar al-Ma'rifah.
Al-Nawawi, Muhyi al-Din bin Sharaf. Undated. Sharh Sahih Muslim. Beirut: Dar Ihya al-Turath al-Arabi, 2nd ed.

Encyclopedias:

Britannica Encyclopedia. 1999. Inc, CD-ROM.
The Oxford Encyclopedia of the Modern Islamic World. 1985. Oxford: Esposito, John.

English 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.
Neusner, Jacob. Judaism in Modern Times. Blackwell Publishers, USA. 1995.

Footnotes

[^5]: 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 Impact of Custom in Understanding Texts, Family Rulings between Islam and Western Traditions, Contemplating the Holy Quran between Theory and Practice, and others. She has participated in various conferences and seminars in several Arab and Islamic countries and elsewhere.

[^1a]: See inheritance among the Greeks and Romans: Britannica CD, "Inheritance and Succession: Historical development." And the following Arabic references: Abu al-Yaqdhan al-Jubouri, Hukm al-Mirath fi al-Shari'ah al-Islamiyyah, Dar al-Nadwah al-Jadidah, 1st ed., Beirut, 1406 AH/1986, p. 11 onwards; Badran Abu al-Aynayn, Ahkam al-Tarikat wa al-Mawarith fi al-Shari'ah al-Islamiyyah, Mu'assasat Shabab al-Jami'ah, Egypt, p. 9 onwards; Ahmad Mahmoud al-Shafi'i, Al-Mirath fi al-Shari'ah al-Islamiyyah, Mu'assasat al-Thaqafah al-Jami'iyyah, Egypt, 1983, p. 6 onwards.

[^1b]: The Holy Bible: Old Testament and New Testament, Bible Society in the Middle East, Lebanon, 1933. Deuteronomy 21:15-17.

[^2]: Numbers 27:1-11.

[^1c]: Badran Abu al-Aynayn, op. cit., p. 18.

[^2a]: Al-Jassas, Ahkam al-Qur'an, edited by Muhammad al-Sadiq Qamhawi, Dar Ihya al-Turath al-Arabi, Beirut, 1405 AH, Vol. 2, p. 2.

[^1d]: This phrase was quoted by some authors from Abu Ja'far Muhammad bin Habib al-Baghdadi (d. 245 AH), who has several books including Al-Mukhtalif wa al-Mu'talif fi Asma' al-Qaba'il. See his biography in Hajji Khalifa, Mustafa bin Abdullah (d. 1067 AH), Kashf al-Zunun 'an Asami al-Kutub wa al-Funun, Dar al-Kutub al-Ilmiyyah, Beirut: 1413 AH, Vol. 2, p. 1638. Also Muhammad bin Ishaq Abu al-Faraj al-Nadim (d. 385 AH), Al-Fihrist, Dar al-Ma'rifah, Beirut 1398 AH - 1978, p. 155. See Badran Abu al-Aynayn, op. cit., where he 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 the matter is not as the author quoted regarding 'Amir bin Jusham's agreement with the later Islamic ruling. See Ahmad Mahmoud al-Shafi'i, op. cit., p. 19. See this narration in Ahmad bin Ali bin Hajar al-Asqalani (d. 852 AH), Fath al-Bari Sharh Sahih al-Bukhari, edited by Muhammad Fuad Abd al-Baqi and Muhib al-Din al-Khatib, Dar al-Ma'rifah, Beirut, 1379 AH, Vol. 12, p. 19.

[^3a]: See for example: Abd al-Hadi Abbas, Al-Mar'ah wa al-Usrah fi Hadharat al-Shu'ub wa Anzimatiha, Tlass lil-Dirasat wa al-Tarjamah wa al-Nashr, Damascus, 1987, Vol. 2, p. 215; Ahmad Mahmoud al-Shafi'i, op. cit., p. 18.

[^1e]: Al-Jassas, Ahkam al-Qur'an, op. cit., Vol. 2, p. 2.

[^2b]: Surah An-Nisa, Verse 11.

[^2c]: Surah An-Nisa, Verse 11. (The mentioned verse is part of verse 11, not 12 as the numbering in the original might suggest).

[^3b]: 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. Also cited by Abu al-Fida' Ismail bin Kathir, Tafsir al-Qur'an al-Azim, Isa al-Babi al-Halabi Press, Egypt, 1963, Vol. 1, p. 451.

[^1f]: Al-Jassas, op. cit., Vol. 2, p. 8.

[^2d]: Surah An-Nisa, Verse 7.

[^1g]: For more details on inheritance in contemporary books, see: Wahbah al-Zuhayli, Fiqh al-Mawarith fi al-Shari'ah, Dar al-Qalam, Dubai, 1407 AH - 1987. Also Shawqi al-Sahi, Mawsu'at Ahkam al-Mawarith, Dar al-Hikmah, Damascus and Beirut, 1408 AH - 1988, pp. 11-49.

[^3c]: Al-Nawawi (d. 676 AH), Sharh Sahih Muslim, Dar Ihya al-Turath al-Arabi, Beirut, undated, Vol. 11, p. 79.

[^1h]: Several contemporary authors addressed this issue. See for example: Yusuf al-Qaradawi, "Dialogue on the Relationship between Text and Ijtihad," 1413 AH - 1992, Yearbook of the College of Sharia and Islamic Studies (Issue Ten), p. 36.

[^2e]: Fathi al-Darini, Al-Manahij al-Usuliyyah fi al-Ijtihad bi-al-Ra'y fi al-Tashri' al-Islami, Al-Sharika al-Muttahida lil-Tawzi', Syria, 1405 AH - 1985, 2nd ed., pp. 16-20.

[^1i]: 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.

[^1j]: Muhammad Abdullah Draz, Al-Din: Buhuth Mumahhidah li-Dirasat Tarikh al-Adyan, Dar al-Qalam, Kuwait, p. 107.

[^1k]: Britannica CD, "Judaism."

[^2f]: See the book by the well-known Jewish author Jacob Neusner, in which he cited the history and principles of the Reform movement: Jacob Neusner, Judaism in Modern Times, Blackwell Publishers, USA, 1995, p. 67.

[^1l]: Muhammad Muhammad Hussein, Al-Islam wa al-Hadharah al-Gharbiyyah, Mu'assasat al-Risalah, Beirut, 1402 AH - 1982, p. 147 onwards.

[^2g]: R. B. Serjeant. Customary and Shariah Law in Arabian Society. Galliard Printers Ltd., Britain, 1991, p. 1.

[^3d]: A Jewish Orientalist who lived between 1850-1921, specialized in Islamic studies, especially creed, and produced many works not free from bias and distortion of the image of Islam and Muslims. Among his most prominent works is Introduction to Islamic Theology and Law.

[^1m]: Ibid., p. 201, quoting from the book of Muhammad Muhammad Hussein, op. cit., p. 147 onwards.

[^1n]: Britannica CD, "Nature and significance of Islamic Law."

[^1s]: The Oxford Encyclopedia of the Modern Islamic World, Vol. 4, p. 323.

[^2h]: Hassan Hanafi, Thuna'iyyat al-Jins am Thuna'iyyat al-Fikr, Dar Sina lil-Nashr, Egypt, 1992, p. 42.

[^1u]: Hassan Hanafi, op. cit., p. 45.

[^2i]: See also what Muhammad Shahrur wrote in the same context: Muhammad Shahrur, Al-Kitab wa al-Qur'an: Qira'ah Mu'asirah, Al-Ahali lil-Tiba'ah wa al-Nashr wa al-Tawzi', Damascus, 1st ed., 1990, pp. 40-44.

[^1f_alt]: For details on all of this, see: Wiebke Walther, Women in Islam: From Medieval to Modern Times, Markus Wiener Publishing, Princeton & New York, 1993; 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.

[^1s_alt]: Wiebke Walther, Women in Islam: From Medieval to Modern Times, Markus Wiener Publishing, Princeton & New York, 1993, p. ix-x.

[^1q]: See their statements in: al-Tahir al-Haddad, Imra'atuna fi al-Shari'ah wa al-Mujtama', Al-Dar al-Tunisiyyah lil-Nashr, Tunisia, undated, p. 39; Abd al-Majid al-Sharfi, Al-Islam wa al-Hadathah, Al-Dar al-Tunisiyyah lil-Nashr, Tunisia, 1st ed., 1991, p. 224 onwards. See also: Shahrur, op. cit., p. 606; Nasr Abu Zayd, "Personal Status Law in Tunisia between Assumed Secularism and Roots of Islamic Heritage," Kitab al-Mar'ah Hajar (Ed.), Dar Sina lil-Nashr, Egypt, 1992, p. 267.

[^2k]: The Oxford Encyclopedia of the Modern Islamic World, Vol. 4, p. 323.

[^3e]: Muhammad Sa'id al-Ashmawi, Ma'alim al-Islam, Cairo, 1989, p. 112.

[^1r]: Nasr Abu Zayd, "Personal Status Law," op. cit., p. 217.

[^1sh]: See what Muhammad Ahmad Diab mentioned in Adhwa' 'ala al-Istishraq wa al-Mustashriqin, Dar al-Manar, Cairo, 1989, p. 107 onwards, regarding those writings and their authors.

Dr. Ruqaia Al-Alwani

Women's Inheritance in Islam: Between Text and Interpretation