Exceptional solutions

Nevertheless, in certain cases, but not as a general law, the rules of gift (hibah) or bequest/will (wasiyyah) could be applied in order to ensure justice, not necessarily equality.

Examples are donations or wills to a daughter, a son, a wife, a husband, a parent or any other person, if the donor sees that they deserve more than what they will normally inherit because of certain circumstances. This is in line with what Allah (SWT) said:

{Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable} (Al-Baqarah 2:180)

This verse was not abrogated as argued by some scholars. It can certainly be applied and it is very important in ensuring justice in different cases.

I elaborated on this issue elsewhere in some of my writings on critiquing ‘abrogation’. And this is one of the cases that a gift (hibah) can be implemented at the lifetime of the giver of the gift, or a will (wasiyyah) carried out after his/her death before the division of the inheritance. This is indicated by this verse:

{after any bequest you [may have] made or debt} (An-Nisaa’ 4:12)

As for the Hadith: “No bequest for an heir”, many scholars questioned the authenticity of this Hadith. But even if it is authenticated, the rest of it says: “unless the rest of heirs agree”. This guarantees the flexibility that is needed in this area.

The bigger picture is very important. It is necessary that the essential Islamic laws shall be implemented as they were revealed by Allah (SWT), because they have specific intents related to the Islamic social and economic structure.

It is erroneous to confer the title of maqasid ash-Shariah (or objectives of Shariah) on the Western human rights framework. The Shariah has its own rules and regulations that are complete and achieve a higher moral ground when we apply them in totality, not through a partialistic method that compromises the divine intents and higher objectives.

Allah knows the best.

Republished, with few modifications, from the translator’s FB page.