Paper 6: Islamic Inheritance Laws and Systems
INDEX OF CONTENTS
INTRODUCTION TO THE ISLAM, LAND & PROPERTY
RESEARCH SERIES
The
global mandate and activities of UN-HABITAT (United Nations Human Settlements
Programme) in promoting access to land and protecting security of tenure are
derived from a range of international human rights and development standards.
While land, property and housing rights are generally cross-cultural and
asserted within every socio-economic and political system, it is recognised
that practice regarding their regulation and protection may take different
forms. The Land and Tenure Section, Shelter Branch of UN-HABITAT has carried
out systematic research into distinctive
land, housing and property issues and approaches in various regions of the
world including Africa, Latin America and the Balkans. It uses a ‘best
practices’ approach to develop affordable, pro-poor and flexible tenure types
and land tools, particularly for women. These tools are incorporated into
UN-HABITAT’s global campaigns and programmes as well as made available to
governments, civil society and all stakeholders for their advocacy work and for
implementation of relevant laws and policies.
During
its work in a range of countries from Afghanistan to Indonesia, UN-HABITAT has
been increasingly aware of the importance of Islamic land tenure conceptions
and land rights. Over 20 percent of the
world’s population is Muslim but there has been little research on the complex
and distinctive forms of land tenure and land rights. Too often global reviews
of land tenure are undertaken without taking Islamic laws relating to land
sufficiently into account. The Land and Tenure Section of UN-HABITAT therefore
commissioned two experts Mr. M. Siraj Sait and Dr. Hilary Lim from University
of East London, United Kingdom to carry out a year long in depth study of the
Islamic and other dimensions of land and property rights in the Muslim
world.
The
objective of this research was to produce a body of material, through eight
position papers, accompanied by a database, with proposed strategies which
could enhance the knowledge and augment the capacity of UN-HABITAT and its
partners to work more effectively in Muslim contexts. However, these papers
have been written for a general audience without any assumption of knowledge
regarding Islam, law or property rights and are therefore offer basic
information as well as an opportunity to revisit first principles.
The
general findings of the research are that there are distinctive Islamic
conceptions of land and property rights which are varied in practice throughout
the Muslim world. Though Islamic law and human rights are often an important
factor in the conceptualisation and application, they intersect with State,
customary and international norms in various ways. In doing so, they
potentially offer opportunities for the development of ‘authentic’ Islamic land
tools which can support the campaign for the realization of fuller land rights
for various sections of Muslim societies, including women. However, in order to facilitate that role,
the various stakeholders must constructively review the normative and
methodological Islamic frameworks and their relationship with other systems of
formal and informal land tenure.
Paper
I on Islamic Land theories and
Applications contextualises and introduces Islamic property and land
concepts as part of a sophisticated and alternate land framework running
alongside international regimes. The Islamic property rights framework
conceives of land as a sacred trust but promotes individual ownership with a
re-distributive ethos. It argues that engagement with Islamic dimensions of
land may potentially support land rights initiatives in Muslim societies and has
implications for programmes relating to land administration, land registration,
urban planning and environmental sustainability. Position Paper II on Islamic Land Tenure and Reforms explores
how land tenure concepts, categorisations and arrangements within the Islamic
world are multi-faceted, generally distinctive and certainly varied. This paper
explores the socio-historical context and development of Islamic land tenure
regimes leading to the ‘web of tenure’ in contemporary Muslim societies. An
appreciation of the historical context of land tenure in Muslim societies and
the range of land tenure forms contributes towards development of authentic and
innovative strategies for enhancing access to land and land rights.
Position
Paper III on Islamic Law, Land and
Methodologies finds Islamic law (Shari'a)
an important factor influencing land rights and tenure systems in Muslim
societies. Islamic law can be seen as an evolving, responsive and assimilating
sphere of competing ideologies and interests, though it is a site of struggle
between conservatives and liberals. An appreciation of the distinctive features
and sources of Islamic law, its methodologies and diversity in application and
its dispute resolution mechanisms would contribute towards strategies aimed at
enhancing security of tenure. Position Paper IV Islamic Human Rights and Land sets out to examine the relationship
between international human rights and Islamic conceptions of human rights in
theory and practice. It argues that, with respect to land rights, the
difference between these two sets of rights appears minimal and a sensitive and
careful recognition of Islamic religious and political sensitivities can help
deliver international human rights more effectively in Muslim societies,
without offending Islamic principles.
Position
Paper V Muslim Women’s Rights to Property
explores the nature and scope of women’s rights to property and land under
Islamic law (Shari'a) through a
socio-historical background to women's property rights, an appraisal of modern
legal reforms and the avenues for enhancing their security of tenure. It argues that despite assumptions to the
contrary, there are potential empowering strategies for women through Islamic
law which can enhance women’s access to land and enforcement of their other
property rights. Position Paper VI Islamic
Inheritance Laws and Systems considers how Muslim societies generally
derived their inheritance rules from religious sources for the division of an
individual's property upon death, some of which are controversial. Yet, it
argues that the application of these formal inheritance rules pertaining to
designated shares must be understood in a broader socio-cultural and economic
context and within wider inheritance systems of practice.
Position
Paper VII Islamic Endowments (Waqf) and
Indigenous Philanthropy outlines how the endowment (waqf plural awqaf) is a
key Islamic institution, which has incorporated within its legal sphere vast
areas of land within the Muslim world, connected firmly with the religious
precept of charity. Modern reforms in several Muslim countries have abolished,
nationalised or highly regulated endowments but the endowment (waqf) remains influential and there are
clear signs of its reinvigoration. The paper evaluates the role for the Islamic
endowment (waqf) in strategies to
improve security of tenure based on its legal foundations, history and
socio-economic impacts. Position Paper VIII Islamic
Credit and Microfinance considers the increasing demand from within Islamic
communities that financial services be compliant with Islamic law (Shari'a). This paper explores the
Islamic context which stimulates such alternative credit systems, the key
distinguishing features of the Islamic banking models, the development of
Islamic microfinance models and the practical challenges to these innovations.
It considers how Islamic finance, banking principles and credit, particularly
housing microfinance, can contribute to security of tenure and in transforming
the lives of the poor.
The findings of this study were discussed
at a two day workshop on ‘Land tenure and Land law tools in the Middle East and
North Africa’ in Cairo, Egypt on December 15-16 2005. This preparatory meeting
for World Urban Forum (WUF III) 2006 was part of a meeting hosted by the
Government of Egypt and organised by United Nations Economic and Social
Commission for Western Asia (ESCWA), UN-HABITAT, and the League of Arab States.
This research was also presented at the Expert Group Meeting (EGM) at Bangkok,
Thailand on ‘Secure Land Tenure:
New legal frameworks and tools in Asia and Pacific' December 7-9 2005 organised
by UN-HABITAT, United Nations Economic and Social Commission for Asia and
Pacific (UNESCAP), International Federation of Surveyors (FIG) and World Bank.
Through this preliminary
study, UN-HABITAT and its partners seek to discuss and develop appropriate
strategies through identification and development of innovative and pro-poor
land tools in their particular context.
Paper
6: Islamic Inheritance Laws and Systems
Any person contemplating death and considering the
future distribution of his or her property will place in the balance a whole
range of factors, which will be specific to his or her personal, family and
social circumstances. ….. In Muslim societies, a person's ability to make such
calculations is frustrated, in theory, by the compulsory Islamic inheritance
rules that impose substantial constraints upon the freedom of a person … to
determine the devolution of his property'.
(Powers 1999: 1167)
OVERVIEW
Inheritance
is often treated as peripheral to, or semi-detached from, general debates and
policy formation concerning security of tenure, land rights, land reform or
regularisation. However, inheritance is
one of the commonest ways of acquiring land or access to land. In Muslim
societies generally, irrespective of the nature of faith of the Muslims
concerned, inheritance rules are derived from religious sources for the
division of an individual's property upon death. The rules are in the main rigorously
implemented by the family, and community, and upheld by the State. Yet, the application of these formal
inheritance rules pertaining to designated shares must be understood in a
broader socio-cultural and economic context and within wider inheritance
systems of practice. Demystifying the complex dynamics of Islamic inheritance
rules and practice may reveal important information for the implementation of
strategies designed to enhance security of tenure.
Scope of this Position Paper: This
position paper contextualizes the Islamic Inheritance Systems in Section 1. It
examines some of the key features of the Islamic legal rules of inheritance, including
the benefits and disadvantages of the fixed share system in Section 2. It
explores some of the legal rules on inheritance as part of wider Islamic
inheritance systems and their implications in Section 3. Section 4 examines
post-inheritance adjustment practices including consolidation and renunciation
of inheritance rights, with particular reference to the position of women.
Section 5 considers proposals for, and contemporary debates around, legal
reform of Islamic inheritance rules.
Section 6 offers five strategies for empowerment through inheritance
rights
* Demystify Islamic inheritance
* Promote Islamic reasoning (ijtihad)
* Facilitate social legitimacy
* Resist abuse of consolidation &
renunciation
* Secure land tenure
6.1
CONTEXTUALISING ISLAMIC LAWS OF INHERITANCE
6.1.1 Islamic laws of inheritance
While modern
reforms and changes have influenced several fields of Islamic law, the detailed
classical inheritance structure has been one of the enduring legacies of
classical Islamic law or the Shari’a.
The formal inheritance
rules have several distinctive features.
First, there are predetermined percentage shares for pre-selected
beneficiaries while at the same time allowing some flexibility through bequests
and legitimate estate planning. Second, a Muslim’s ability to bequeath is
restricted to only one-third of an individual's estate under certain rules with
the remaining two-thirds devolving according to the compulsory inheritance
rules. Third, the scheme of mandatory fixed shares is remarkably inclusive and
provides access to property to a range of family members. Finally, the
inheritance rights cannot be generally taken away. Rather than a set of
abstract rules, Islamic inheritance rules are intended to facilitate
distinctive Islamic conceptions of property, family, community, empowerment and
justice.
6.1.2 What property may be inherited?
The Islamic law
of succession makes no distinction between different kinds of property. It is immaterial whether property is real
(land) or personal, movable or immovable - it covers all assets.
6.1.3 Who may inherit property?
Given the wide range of
beneficiaries that the Islamic inheritance system seeks to cater to through a
sophisticated balancing process, the results can turn out to be hairsplitting
permutations and combinations varying according to a given scenario. There are
some differences in Sunni and Shi’a positions.
6.1.4 Benefits of the rules for fixed shares
There exist some easily
perceived potential benefits to a scheme of specified shares, as compared with
systems of inheritance which provide greater apparent legal freedom to the
individual seeking to control devolution of his/her property upon death.
6.1.5 Fragmentation of property vs. cohesiveness of
the extended family
The fixed inheritance
share rules – which apply to big or small estates, residential or commercial
property, liquid assets or investments – can lead to minute divisions, making
fragmentation of property a problem, particularly, although not exclusively, in
relation to agricultural land.
6.2 INHERITANCE
RULES AS PART OF ISLAMIC INHERITANCE SYSTEMS
A variety of legal tools
have developed in different contexts to permit individuals to make arrangements
for the transmission of property, according to their own determination.
6.2.1 Islamic wills (wasaya)
Gifts can be made
to take effect upon death, by means of a will, but only up to one-third of an
individual's estate can be bequeathed in this manner with the remaining
two-thirds devolving according to the compulsory rules.
6.2.2 Women's inheritance shares as part of a wider
property system
Female relatives and
spouses are accorded shares, but half that of a male in a similar position and
male relatives are more likely to inherit and to enjoy a greater share of the
estate. This difference in treatment between
men and women is usually explained by reference to the fact that it is also a
feature of Islamic law that a wife is entitled to maintenance from her husband,
in terms of shelter, clothing, food and medical care. Despite the argument that
women are compensated for their unequal inheritance shares through such
material obligations on the part of husbands to their wives (and other tools
such as dower and gift), the apparent formal paper inequality remains a matter
of vigorous debate and gives rise to calls for legal reform.
6.2.3 Unborn, illegitimate and adopted children and
orphaned grandchildren
Since a child is deemed
to be in existence from the point of conception, a child in the womb is
competent to inherit within Islamic law.
However, an illegitimate child whose paternity was contested may not
inherit from the wife's husband, although that child may inherit from its
mother and its mother's family.
Adoption is not
recognised under Islamic law (Shari'a),
so inheritance through legal adoption into a family is not feasible. A bequest in favour of an adopted child may
not exceed one-third of an estate, under the rules. An orphaned grandchild is unlikely to
inherit from a grandparent under Islamic inheritance principles.
6.2.4 'Estate
planning' and lifetime transfers
There are a variety of
legal techniques that a person contemplating death may deploy as a form of
'estate planning', in order to avoid the strictures of the compulsory
inheritance rules. These include the lifetime transfer or gift (hiba) and the establishment of a family
endowment (waqf ahli). The tools
deployed for estate planning are subject to debate but the modernisation of
Islamic societies has resulted in a propensity towards several kinds of estate
planning.
6.2.5 Family
endowments
Another legal strategy for an individual
seeking to control the devolution of his or her property is to establish a
family endowment (waqf ahli). A major
source of women's historic wealth appears to have arisen from beneficial
interests in endowment (waqf)
properties, but these endowments have now either been abolished or subjected to
severe limitations in most countries.
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