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Justice, Not Equality, Is the Objective of Shariah Inheritance Rules

Justice, Not Equality, Is the Objective of Shariah Inheritance Rules

Translated from the original Arabic by Idris Mukhtar.


Some brothers and sisters asked me about the new laws proposed in Tunisia in order to enforce the equating of the shares of males and females, i.e. brothers and sisters, and fathers and mothers in their portions of inheritance. This what some rulers have suggested there in the name of ‘intent of Islamic law’.

Answer: “Equality” is not one of the intents of Islamic law when it comes to inheritance. In this area, Islamic law intends to achieve justice and fairness.

Surely, all human beings originate equally from a single soul. They are all equal in the sense that no Arab is better than a non-Arab or the contrary, as the Prophet (peace and blessings be upon him) said.

However, this is only in terms of human dignity, the capacity to apply commandments, and criteria for rewards and punishments by Allah (SWT).

People are all equal in terms of laws that make no difference in rights and responsibilities; such as, prayers, charity (Zakat), fasting and pilgrimage.

However, in terms of rights and responsibilities related to financial issues, people are not equal in the eyes of Islamic law; that is why there is difference in roles and responsibilities between people based on what they have been mandated by Sharia and based on their means and capacity.

If we equate all humans in terms of rights and not responsibilities, then this is injustice; the Islamic law is all about justice.

 

Financial responsibilities are different

Males and females are not equal in terms of financial roles in Islamic law. For example, a husband is mandated to support his wife and family in all their needs. A wife’s contribution is voluntary and is considered to be a “charity”.

On the other hand, She has the primary responsibility of nurturing the children, especially while they are young. Allah Subhanahu wa ta`ala said with regards to the husband’s supporting of the family:

{Let a man of wealth spend from his wealth, and he whose provision is restricted – let him spend from what Allah has given him} (At-Talaq 65:7)

With regard to the mother responsibilities, Allah Almighty said:

{Mothers shall suckle their children for two whole years; (that is) for those who wish to complete the suckling.} (Al-Baqarah 2:233)

And for the husband’s responsibility, Allah (SWT) said:

{The reasonable cost of their maintenance and clothing will be the responsibility of the child’s father.} (Al-Baqarah 2:233)

And at the same time Allah said in another verse with regard to the mother’s entitlements:

{Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in the acceptable way} (At-Talaq 65:6)

For both father and mother, Allah (SWT) said:

{And do good unto [thy] parents. Should one of them, or both, attain to old age in thy care…} (Al-Israa’ 17:23)

And so on.

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About Dr. Jasser Auda

Jasser Auda is a Professor and Al-Shatibi Chair of Maqasid Studies at the International Peace College South Africa, the Executive Director of the Maqasid Institute, a global think tank based in London, and a Visiting Professor of Islamic Law at Carleton University in Canada. He is a Founding and Board Member of the International Union of Muslim Scholars, Member of the European Council for Fatwa and Research, Fellow of the Islamic Fiqh Academy of India, and General Secretary of Yaqazat Feker, a popular youth organization in Egypt. He has a PhD in the philosophy of Islamic law from University of Wales in the UK, and a PhD in systems analysis from University of Waterloo in Canada. Early in his life, he memorized the Quran and studied Fiqh, Usul and Hadith in the halaqas of Al-Azhar Mosque in Cairo. He previously worked as: Founding Director of the Maqasid Center in the Philosophy of Islamic Law in London; Founding Deputy Director of the Center for Islamic Ethics in Doha; professor at the University of Waterloo in Canada, Alexandria University in Egypt, Islamic University of Novi Pazar in Sanjaq, Qatar Faculty of Islamic Studies, and the American University of Sharjah. He lectured and trained on Islam, its law, spirituality and ethics in dozens of other universities and organizations around the world. He wrote 25 books in Arabic and English, some of which were translated to 25 languages.

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