Pre Islamic Inheritance System 4m1p21

PRE ISLAMIC INHERITANCE SYSTEM (Review on the Justice Values in its Division of ∗ Inheritance) By Zaenul Mahmudi

ABSTRACT

Every society has its own ways to solve the problems they face, including the inheritance problems. The pre-Islamic Arab society had local wisdom to determine the heirs deserved to inherit, and who did not that was adapted to the socio-cultural conditions of the time. The pre-Islamic Arab society established that the heirs deserving the inheritance properties were men responsible and able to bear arms on the battlefield. Young children, frail men and women were not considered eligible to receive inheritance properties made a symbol of leadership and responsibility to the family and tribe. Inheritance properties received by men were not spent for their own benefit, but returned to their families and tribes as a form of responsibility and dedication over the trust that family and tribe submitted. Inheritance properties were used to the families and tribes, in addition to the cost of war and diplomacy with other tribes.

A.Background Islamic law the God had revealed to Muhammad not only for the single nation, but for all nations all over the world. Islamic law is not reserved towards certain period, but the whole period since the God has sent Muhammad as the Prophet. Islamic law is not only for the people who lived in the 7th century BC, but also those who live in the 21st century and beyond. Islamic law is not only for the The article is presented in Round Table Discussion held by I Unit on Friday, January, 11 2013 

Arabic people but also for those who live in Tokyo, Paris, and Montreal.1 Therefore, the Sharia should be able to adapt to the development of culture, people and time as legal maxim says “alIslâm shâlih li kull zamân wa makân”. Islamic law was not revealed in the society having no culture, but in the society already had certain culture, traditions, and rules as their local wisdom for governing their living. Islamic law when it had sent into the Arabian society did not necessarily ignore their existing local wisdom, even it adopted and adapted the culture and tradition deeply rooted in the community in which were then given the spirit and values of Islam. Therefore, Bassam Tibi said that the existence of religion in relation to society and its development has a dual role; model of reality and the model for reality. The first model means that the Islamic religion is institutions whose existence can not be separated from the existing Arabic ones while the second model has the notion that religion is values and social institutions made for change and community development. Islamic law of inheritance was one example where pre Islamic-Arabian tradition and inheritance influence the inheritance concept understood by Sunni schools. There are some concepts indicate the influence of the pre-Islamic Arabian culture is on the Islamic inheritance system, such as the concept of ‘ashabah that, as Robertson Smith said, originally means those who go to battle together i.e. have a common blood-feud.2 This concept was later adopted by the Islamic inheritance system as male heirs whose relationship to the deceased did not inserted by female heirs (agnatic heirs). 1

Muhammad Shahrûr, Nahw Usûl Jadîdah li al-Fiqh al-Islâmî; Fiqh al-Mar’ah: alwashiyyah, al-Irth, al-qiwâmah, al-Ta‘addudiyyah, al-Libâs, (Damaskus: al-Ahâlî, 2000), 21-22. 2 Robertson Smith, Kinship and Marriage in Early Arabia, (London: Adam and Charles Black, 1903), 65

Adoption and adaptation of the pre-Islamic inheritance system done by Islamic inheritance system shows that the tradition of inheritance applied to the pre-Islamic Arab society is not bad at all, but the author believes that pre-Islamic inheritance system is the local wisdom best applied in the division of properties in the context of society at the time. Therefore, this paper intends to examine the pre Islamic local wisdom in the division of the properties applied in the pre-Islamic Arabian society, particularly in relation to the values of justice. B. Theoretical perspective 1. Inheritance System Inheritance system is the system of the division of the properties as agreed upon by the community in determining who the heirs are, how many shares they get and how its distribution to be done. Inheritance system that has been strongly institutionalized in Muslim world society is Sunni and Shiites inheritance systems, while in Indonesian context besides the Sunni inheritance system applied in the Muslim society, Indonesian government also applies Indonesian-Islamic law of inheritance ruled in the President Instruction No. 1/1991 on the Compilation of Islamic Law Book II. Besides, there are some new legal reasoning about inheritance proposed by Hazairin, namely bilateral inheritance concepts. In the Sunni inheritance systems, the heirs is divided in three groups, namely the sharers (dzawî al-furûdl), the agnatic heirs (‘ashabah) and kindred heirs (dzawî al-arhâm). The shares for dzawî al-furûdl consist of six shares, namely: half, third, fourth, sixth, eighth and two-thirds depending on who sharers are and how their condition are. And the method of inheritance there are some conditions, namely: when the heirs consist of

only the sharers (dzawî al-furûdl), when the heirs consist of the sharers and agnatic heirs (‘ashabah), and when there are no the sharers and agnatic heirs but only kindred heirs (dzawî alarhâm). Besides the Sunni inheritance system, there is Shiite inheritance system. The Shiite inheritance system divided the heirs into three classes inheriting hierarchically. It means that the closest heirs to the deceased will eliminate more remote ones. The first class consists of: a) true father and mother, and b) son and daughter and their descendants how low so ever. The second class consists of a) true grandfather and grandmother how high so ever, and b) brother and sister whether they are full, consanguine or uterine and their descendants. And the third class consists of a) uncle and aunt from male lines and their descendants, and b) uncle and aunt from female lines and their descendants.3 The heirs of three classes groped by Shiite inheritance can be divided into two gropus, namely the sharers (dzû

fardl)

and

dzû

qarabât

consisting

of

agnatic

heirs

(‘ashabah) and kindred heirs (dzawî al-arhâm) as termed by Sunni inheritance system. It means that ‘ashabah and dzawî alarhâm in Shiite inheritance system have same status. 2. Justice Justice in Indonesian is called “keadilan” coming from the word "adil" having prefix “ke-“ and suffix “-an”. It has several meanings : a) the same weight, not biased; non-partisan, and b) the thing should be, while justice means things (actions, treatment etc.) are fair. The word “keadilan” is Indonesian language from Arabic “adl” which means “mâ qâma fî al-nufûs annahu mustaqîm wa huwa dlidd al-jawr” (something exists in 3

Muhammad Hasan al-Najafî, Jawâhir al-Kalâm fî Sharh Syarâ’i‘ al-Islâm, volume 39 (Beirut: Dâr Ihyâ’ al-Turâts al-‘Arabî, , 1981), 7-8.

the soul which he believe it as something straight and fair. it is an opposite of injustice). “Adl” also has the meaning legal provisions liked by someone else and issuing the law correctly.4 Justice, in the view of Rif'at al-Tahtawi is equality before the law (al-musah amâm al-qanûn) or life in accordance with the agreed laws and regulations.5 The word “adl” always associated with the word “i‘tidâl” meaning balance. Sometimes the word “‘adl” is related to right of people, so it means to give someone the thing according to his right" and "to prevent injustice", because injustice of tyranny is beyond the determined limits. In Khan’s view, the focus of justice ('adl) meaning is a balance and proportional division rather than equity among people, because equality contradict justice in certain condition. 6 It can be felt when the awards and salary given to people who have a high social status or positions are equated with those who have low ones. There are several kinds of justice, namely distributive justice, retributive justice, corrective justice, procedural justice, commutative justice, legal justice, social justice, and restorative justice. Aristotle (384-322 BC) in his Nicomachean Ethics distinguishes between general justice and specific justice. The first encomes all the good that a person uses in treating others, while the second encomes the distribution of certain honor, wealth, and property equally and fairly. Aristotle said: "For if the persons are not equal, they will not have equal shares; it is when equals possess or are allotted unequal shares, or persons not equal, equal shares that quarrels and complaints 4

Al-Khalîl ibn Ahmad al-Farahidî, Kitab al-Ain; Murattaban Alâ Huruf al-Mu’jam, juz III, (Beirut: Dâr al-Kutub al-‘Ilmiyyah, 2003), 110. 5 ‘Azzat Qarniy, al-‘Adâlah wa al-Hurriyah fi Fajr al-Nahdlah al-‘Arabiyyah al-Hadîtsah, (Kuwait: Alam al-Ma’rifah, 1980), 73. 6 Muhammad Akram Khan, Islamic Economics and Finance : A Glossary, (London and New York: Routledge Taylor & Francis Group, 2003), 3.

arise."7 The people who do not have same position do not get the same shares. It also means that when they have the same position then given unequal shares or who do not have same positions given the same shares will cause strife between them. C. Pre-Islamic Inheritance System The pre-Islamic Arabian society is tribal society based on the patriarchal family system8 in which the male person has a special position rather than female ones. This male special position is not only in acquiring the rights, but also in carrying on their family and tribe survival. Obligations and responsibilities carried on by the male person commensurate with their right in acquiring properties. Based on historical information, the geographical conditions in most of Arabia land is desert, a few meadows and springs called oasis. The number of meadows and oasis are not proportional to the number of people and tribes living in Arabia. The geographical conditions makes Arabian people live in nomadic style. They have to move from one place to another to look for a decent life for their tribes, families and cattle. Given that Arabian bedouin seek pasture and oasis altogether, the scramble and fight between them often occur to demonstrate their responsibility and obligation to protect their families and tribes. This condition makes the men who have the power and responsibility

(qiwâmah)

become

a

major

factor

for

the

sustainability of families and tribes. If a certain tribe had not been had men who had the power and responsibility, the tribe would have been destroyed by other tribes and not able to find food and water for the sustainability of their tribes and families. Therefore, 7

Duane F. Alwin, “Social Justice” in Encyclopedia of Sociology Second Edition. Volume 4 (New York: Macmillan Reference USA, 2000), 2696. 8 JND Anderson, Islamic Law in The Modern World, (New York: New York Press, 1959), 60

the pre-Islamic Arab tribal life, gave the men who have the power (qiwâmah) has a strategic role and become the foundation of the sustainability of their tribes and families. The pre-Islamic Arabian society applied the "law of the jungle". It means that the tribes that were strong would win and those were weak would loss. This condition encouraged the emergence of patriarchal family system, because, men naturally have more physical strength than that of women. Men are at the vanguard and became a fortress to fight enemies who will attack and destroy them. The men also became the backbone for their tribes

and

families

in

economical

life,

because

they

had

responsibility to nurture their tribes, families, and cattle. There is no security for a man other than an unwritten law “blood feud” in which if one of tribe’s was killed by one of another tribe’s , he must be avenged by his agnatic relatives. And if the killing tribe want to avoid further bloodshed, they have had to provide bloodwite as a compensation to “heirs of blood”.9 In this unwritten law, only the agnatic families of those men killed or killing who can look for revenge or responsible to pay the fine as compensation for the death of a person. This law also has implications for entitled heirs to properties of inheritance, namely agnatic heirs (‘ashabah) who has responsibility to avenge and pay fine. Females, their descendants, and small children have no rights as those of nearest male relatives do. 10 The sequence of agnatic relatives entitled the inheritance is as follows: male descendants will eliminate male ascendants and collaterals, and male ascendants will eliminate collaterals; collateral from father takes precedence over uncle from paternal grandfather and so on. So, it can be concluded that the sequence of agnatic heirs 9

Ibid, 60-61. Ibid, 61.

10

entitled to inheritance follows the rule “closest relatives will eliminate more remote ones”. There are several grounds of inheritance applied by pre Islamic Arabia that can be grouped into two groups, namely: lineage or blood relatives and specific causes. The lineage or blood relative causes have no clear rules, there is no equity between male and female. The rule used is the man who is strong to bear arms and fight will be entitled to inheritance.11 The factor “bear arms and fight” used by pre Islamic inheritance system as prerequisite for men to be entitled to inheritance follows natural interest to sustain their tribes, families, and cattle. With regard to the heirs from lineage grounds, Asaf A. A. Fyzee reveals that the principles of the pre-Islamic customary law may be summarized as follows: 1) The nearest male agnate or Agnates (‘ashabat) succeeded, 2) Females and cognates were excluded, 3) Descendants were preferred to ascendants, and ascendants to collaterals, and 4) Where the agnates were equally distant, the estate was divided per capita. 12 The second factor consist of two aspects, namely: oath of allegiance (al-hilf) and adoption of child (al-tabannî). Oath of allegiance was often done by the pre Islamic Arabia between individuals, groups, and tribes to strengthen themselves in facing enemy attacks that disrupt the safety and survival of their families and tribes. In the oath, they promised and said: “Damî damuka wa hî huka wa tarithunî wa arithuka wa yathlubu bî wa yathlubu bika” (My blood is also your blood, my ruin is also your ruin, you inherit me and I inherit you, this oath binds me and binds you). When one of the two tribes who made this allegiance died, 11

Maryam Ahmad al-Daghistânî, al-Mawârîts fî al-Syarî‘ah al-Islâmiyyah alâ Madzâhib al-Arba‘ah wa al-A‘mâl ‘alaih fi al-Mahâkim al-Mishriyyah, (Kairo: Jâmi‘ah al-Azhar, 2001), 5-6. 12 Asaaf A. A. Fyzee, Outlines of Muhammadan Law, (Bombay: Oxford University Press, 1974), 389

then the tribe’s partner is entitled to the property of the deceased of sixth. 13 The second cause is adoption of child. The adoption was a tradition used to be applied in pre Islamic Arabia and continued to the early days of Islam, even the Prophet himself had adopted a boy named Zayd ibn Haritsah and called Zayd ibn Muhammad. In the tradition of child adoption, the lineage of child adopted would be shifted from biological father to adopting father and the adopted child was treated as if he was a biological child. He got inheritance properties as son did, because they had same and equal position. 14 They inherit each other when his brother died first. D. The values of Justice of Pre-Islamic Inheritance System

Principles and values of justice used in the distribution of inheritance properties are distributive justice or the principles of alghunm bi al-ghurm. In which, Aristotle concludes that distributive justice does not necessitate the division of properties should be the same for everyone, even equate the shares to all person may be an injustice deed when there are different position, services, and social status beteen them. Principle and value of justice can be achieved when the division of property regards social status, services, and responsibility a person has in his family, community or other organizations. Distributive justice can be implemented fairly if the existing social system has given equal opportunity for everyone to gain position or particular services in which everyone, both men and women are given equal opportunity to express themselves and have equal opportunity to obtain office, service and responsibility that has implications for differences in the number of properties 13 14

Ahmad al-Daghistânî, al-Mawârîts, 6. Ibid, 6

they get in the distribution of inheritance. In other words, distributive justice can be implemented correctly if procedural justice has been well implemented. Therefore, to assess the justice of pre-Islamic inheritance system, the justice used is distributive one, which means that the number of properties some heirs get is in accordance with the burden and responsibility of the heirs in their families. The more the heirs bear heavy burden and responsibility, the more the heirs obtain the number of properties. On the contrary, the less the heirs bear burden and responsibility, the less the heirs get the properties. The principle of distributive justice (al-ghunm bi alghurm) used in the distribution of inheritance is revealed by Mahmûd Muhammad Bâbalilî as follows:

‫ أي إن الذين يستحقون من تركة الميت بعد‬,‫وهو نظام دقيق يقوم على مبدأ الغنم بالغرم‬ ‫ ومقصصدار أنصصصبة‬... ‫ القصصرب فصصالقرب‬،‫وفاته ملزمون بنفقته في حياته إن كصصان معسصصرا‬ ‫ فصصالمرأة تصصرث نصصصف الرجصصل إذا‬,‫الورثة تختلف حسب التكاليف التي يتحملهصصا الصصوارث‬ ‫ فهم شصصركاء فصصي‬,‫ وقد تتساوى مع الرجل كالخت لم مع الخ لم‬,‫كانت بنتا أو زوجة‬ ‫ ولبويه ]الب والم[ لكل واحد منهما السصصدس‬,‫ وإذا انفرد كل منهما فله السدس‬،‫الثلث‬ ‫ وإذا كانت الشريعة السلمية قد أعطت الرجصصل فصصي بعصصض‬.‫إذا كان للميت فرع وارث‬ ‫ ذالك لن الرجل في النظصصام المصصالي السصصلمي يتحمصصل مصصن‬,‫الحالت ضعف حظ النثى‬ .‫ فهو الذي ينفق عليها وعلى أولده منها وعلى أبويه‬,‫العباء المالية ما لتتحمله النثى‬ 15

"Provisions of Islamic inheritance is a holistic provision based on the principle of “al-ghunm bi al-ghurm” (the booty got is comparable to loss in paying a fine '). It means that people entitled to the properties of the deceased are those who responsible to provide expenditure for the deceased during his lifetime. If the closest relatives is not capable, the responsibility is delegated to more remote ones. ... the number of shares some heirs get varies according to their responsibilities. The female heirs’ share is half that of the male when they are daughters or wives. Sometimes, the share of female and male heirs is same as uterine sisters and brothers, and parents (father and mother), each gets sixth when the 15

Mahmûd Muhammad Bâbalilî, al-Syarî ‘ah al-Islâmiyyah; Syarî ‘at al-‘Adl wa al-Fadl, (Mekkah: Râbithah al-‘A’lam al-Islâmiî, 1414H), 57-59.

deceased has far‘ al-wârits. If Shariah, under some conditions provide a share for male heirs twice that of female heirs, because male heirs have economic responsibility not be owned by female heirs, male heirs are responsible to provide expenditure for their wives, children, and parents”. Before Islam, women had not gained true identity as a human being yet. Women have not been considered as a human but properties or cattle. They could not inherit, even could be inherited by the heirs of her deceased husband. This condition was affected by the harsh conditions at the time in which women who are physically weak have no any merit. Their existence was a burden for the tribe in maintaining its survival from enemies’ threats and attacks. They are not able to bear arms and fight the enemies, and even they spent foodstuff destined for those who were able to fight enemies. If the principle of distribution of inheritance "al-ghunm bi al-ghurm" is applied, it is reasonable if women do not get the inheritance, because they have no any merit and services for sustainability of their tribe and families. A tribe may find difficulties when of his tribe consisted of many women in which the nomad habit of moving can be more difficult when they have to move them. Therefore, it is understandable why the principle of the distribution of inheritance in pre-Islamic inheritance system was based on the male lineage supplemented with qiwâmah or the ability to fight, protect and nurture the family and tribe. Men who has qiwâmah can be counted on to defend and continue the sustainability of their tribe and family. Mind set "fight among tribes" in pre Islamic society encourages and reinforces the patrilineal kinship system and then patriarchal system, in which the position of men is central in the life tribe. The mind set necessitates the strength to bear arms as the parameters

for who is become the leader in tribal life. This social condition in turn implies the exclusion of women from the constellation of tribal life. Domestic role of women and their heredity roles were not regarded and immersed in the atmosphere of struggle, hostility, and fight in the tribal life. Oath of allegiance (al-hilf) conducted between tribes in maintaining the existence of tribe was often done in the pre-Islamic Arabian society. Mutual cooperation between them implies the existence of rights of inheritance rights for oath of allegiance partners, in which if one member of the tribe died, the allying tribe are entitled to a sixth of the properties. The distribution of inheritance in the perspective of distributive justice (al-ghunm bi al-ghurm), then a partner of the oath of allegiance is eligible for inheritance, because they had a merit and services in defending and securing their tribe’s partner. Adoption is also a reason for allotting an inheritance to the child adopted. Adopted child, in pre-Islamic society is equated with biological children, especially in matters of inheritance. They are entitled to inheritance if his adoptive parents died. The adopted child was of course male person able to sustain the existence of the adoptive father’s tribe. Therefore, granting them inheritance is also in line with the principle of distributive justice or "al-ghunm bi alghurm", because he has a merit and services for the sustainability of the adoptive tribe. E. Closing Remark The study of pre-Islamic inheritance system has significance in the development of law in which the development of the law can not be separated from the social, economic and political as Islamic legal maxim quoted by Ibn Qayyim al-Jawziyyah says “al-hukm

yadûr ma‘a ‘illatihi wa sababihi wujûdan wa ‘adaman16 and al-fatwâ tataghayyar bi taghayyur al-zamân, wa al-makân, wa al-ahwâl.17. On the other hand, this study informs that every society has a unique tradition and culture or local wisdom based on the principles of welfare and justice understood and agreed by each community. Certain society local wisdoms is not necessarily good in the view of other society as the pre Islamic Arabia local wisdom in the view of contemporary society. However, local wisdom of the distribution of inheritance applied by pre Islamic Inheritance system is the best method to maintain justice among people in tribal life. REFERENCES Alwin, Duane F., “Social Justice” in Encyclopedia of Sociology Second Edition. Volume 4 New York: Macmillan Reference USA, 2000. Anderson, JND, Islamic Law in The Modern World, New York: New York Press, 1959. Bâbalilî, Mahmûd Muhammad, al-Syarî ‘ah al-Islâmiyyah; Syarî ‘at al-‘Adl wa al-Fadl, Mekkah: Râbithah al-‘A’lam al-Islâmiî, 1414H. Daghistânî al-, Maryam Ahmad, al-Mawârîts fî al-Syarî‘ah alIslâmiyyah alâ Madzâhib al-Arba‘ah wa al-A‘mâl ‘alaih fi al-Mahâkim alMishriyyah, Kairo: Jâmi‘ah al-Azhar, 2001. Farahidî al-, Al-Khalîl ibn Ahmad, Kitab al-Ain; Murattaban Alâ Huruf al-Mu’jam, juz III, Beirut: Dâr al-Kutub al-‘Ilmiyyah, 2003. Fyzee, Asaaf A. A., Outlines of Muhammadan Law, Bombay: Oxford University Press, 1974. Jawziyyah al-, Ibn Qayyim, I‘lâm al-Muwaqqi‘în ‘an Rabb al-‘Âlamîn, Vol. 5. Riyâdl: Dâr Ibn al-Jawzî, 1423 H. Khan, Muhammad Akram, Islamic Economics and Finance : A Glossary, London and New York: Routledge Taylor & Francis Group, 2003. 16

Ibn Qayyim al-Jawziyyah, I‘lâm al-Muwaqqi‘în ‘an Rabb al-‘Âlamîn, Vol. 5. (Riyâdl: Dâr Ibn al-Jawzî, 1423 H.), 528. 17 Ibid, Vol. 6, 114.

Najafî al-, Muhammad Hasan, Jawâhir al-Kalâm fî Sharh Syarâ’i‘ al-Islâm, volume 39. Beirut: Dâr Ihyâ’ al-Turâts al-‘Arabî, , 1981. Qarniy, ‘Azzat, al-‘Adâlah wa al-Hurriyah fi Fajr al-Nahdlah al-‘Arabiyyah al-Hadîtsah, Kuwait: Alam al-Ma’rifah, 1980. Shahrûr, Muhammad, Nahw Usûl Jadîdah li al-Fiqh al-Islâmî; Fiqh al-Mar’ah: al-washiyyah, al-Irth, al-qiwâmah, al-Ta‘addudiyyah, alLibâs, Damaskus: al-Ahâlî, 2000. Smith, Robertson, Kinship and Marriage in Early Arabia, London: Adam and Charles Black, 1903.