An Introduction to Islamic Law (32 page)
Read An Introduction to Islamic Law Online
Authors: Wael B. Hallaq
Tags: #Law, #General, #Jurisprudence, #History, #Middle East, #Religion, #Islam, #International, #Political Science, #Social Science, #Sociology
The modern permissibility of “bequeathing to an heir” has also afforded a solution to the problem of the son of a predeceased son who, according to Islamic law, was entirely excluded from his
grandfather’s inheritance. The nature of the support dynamics within the extended family was such that an orphaned grandson was usually taken care of by his grandparents, uncles and aunts, which explains why Islamic law did not see good reason to allot the deceased father’s share to his surviving son by representation.
Orphans were routinely and as a matter of course absorbed by the family unit in which their parents had lived, which also explains why the relatives continued, over the centuries, to be the recipients of the deceased’s share. With the emergence in modernity of the
nuclear family as an archetype, and with the exponential rise in mobility, such orphans needed protection, as the extended family which used to take care of them has suffered a major decline (in many areas disappearing entirely). No solution from within Islamic law was forthcoming, since inserting the orphaned grandson into the equation of Islamic inheritance would wreak havoc with the entire system. The solution was instead pioneered by
Egyptian legislators and consisted in the statutory decree that any grandfather who has orphaned grandsons must make a will that allots them what their father would have inherited had he been alive, with the proviso that such an allotment not exceed one-third of the grandfather’s total estate. In the event that the latter did not make such a bequest, or if his bequest did not observe the decreed rule, the court had to rectify the will accordingly.
grandfather’s inheritance. The nature of the support dynamics within the extended family was such that an orphaned grandson was usually taken care of by his grandparents, uncles and aunts, which explains why Islamic law did not see good reason to allot the deceased father’s share to his surviving son by representation.
Orphans were routinely and as a matter of course absorbed by the family unit in which their parents had lived, which also explains why the relatives continued, over the centuries, to be the recipients of the deceased’s share. With the emergence in modernity of the
nuclear family as an archetype, and with the exponential rise in mobility, such orphans needed protection, as the extended family which used to take care of them has suffered a major decline (in many areas disappearing entirely). No solution from within Islamic law was forthcoming, since inserting the orphaned grandson into the equation of Islamic inheritance would wreak havoc with the entire system. The solution was instead pioneered by
Egyptian legislators and consisted in the statutory decree that any grandfather who has orphaned grandsons must make a will that allots them what their father would have inherited had he been alive, with the proviso that such an allotment not exceed one-third of the grandfather’s total estate. In the event that the latter did not make such a bequest, or if his bequest did not observe the decreed rule, the court had to rectify the will accordingly.
By the year 2000 no fewer than eight countries in the Middle East had made the estate of the grandparent liable for an obligatory bequest in favor of the orphaned grandchild. This solution was not welcomed in all Muslim states, however, with
Pakistan voicing strong opposition on the
grounds that such legislation makes compulsory what the Quran intended to be a freely chosen act. We shall discuss the case of Pakistan in the next chapter
.
Pakistan voicing strong opposition on the
grounds that such legislation makes compulsory what the Quran intended to be a freely chosen act. We shall discuss the case of Pakistan in the next chapter
.
The laws of succession and bequests were closely tied in with reengineering the law of
waqf
, especially in the Middle East and North Africa. In the previous chapter, we saw that
waqf
was a prime target of attack in the modernizing project initiated by both the colonialist powers and the native nationalist elites. The discourse generated by the French Orientalists during the 1840s filtered through to the Ottoman territories and, later, to the successor states. This discourse – aided by both the nationalist elite and native scholars who had studied at the feet of the European Orientalists – manufactured a distinction between
family and
public
waqf
s, a distinction that Muslim cultures had not made. It further injected into the nationalist ideology the notion that family
waqf
was a development in Islamic history from after the FORMATIVE PERIOD, and therefore without legitimacy, since it was based neither on Prophetic tradition nor even on that of the Companions; the implication here being that later developments, modern ones included, were as good as any other, especially if the “modern” developments excelled earlier ones in “civilizational sophistication.”
waqf
, especially in the Middle East and North Africa. In the previous chapter, we saw that
waqf
was a prime target of attack in the modernizing project initiated by both the colonialist powers and the native nationalist elites. The discourse generated by the French Orientalists during the 1840s filtered through to the Ottoman territories and, later, to the successor states. This discourse – aided by both the nationalist elite and native scholars who had studied at the feet of the European Orientalists – manufactured a distinction between
family and
public
waqf
s, a distinction that Muslim cultures had not made. It further injected into the nationalist ideology the notion that family
waqf
was a development in Islamic history from after the FORMATIVE PERIOD, and therefore without legitimacy, since it was based neither on Prophetic tradition nor even on that of the Companions; the implication here being that later developments, modern ones included, were as good as any other, especially if the “modern” developments excelled earlier ones in “civilizational sophistication.”
Even more remarkable was the creation in this discourse of a causal link between the “invention” of family endowments and an attempt by Muslim societies over the centuries to circumvent the stipulations of the Quranic law of inheritance, which operates by the principle of shares and which, therefore, leads to the fragmentation of property. What is noteworthy about this discourse in the context of mid-twentieth-century nation-states is that the
waqf
’s “betrayal” of the Quranic spirit was one that – ironically – contradicted an invented spirit designed to promote the
nuclear family and, unwittingly, to conform to Shi
i law.
waqf
’s “betrayal” of the Quranic spirit was one that – ironically – contradicted an invented spirit designed to promote the
nuclear family and, unwittingly, to conform to Shi
i law.As if this did not furnish them with enough ammunition for the attack on
waqf
s, the French colonists, the Ottoman ruling elite and the counterparts of the latter in the successor nation-states furthermore blamed economic malaise on the
waqf
since, it was argued, family endowments inherently tie up property in perpetuity and prevent it from efficient development in a free market economy. And since the economy is indispensable to modern development, then impeding material progress amounts to halting the march toward civilization. Thus
waqf
, the main prop of civil society in Islamic civilization for over a millennium, and a chief instrument of its social welfare and safety-net, became synonymous with civilizational retardation and regress. In Kemalist
Turkey, the entire institution of family
waqf
was abolished in 1926, while charitable non-family
waqf
s were nationalized as public welfare institutions.
waqf
s, the French colonists, the Ottoman ruling elite and the counterparts of the latter in the successor nation-states furthermore blamed economic malaise on the
waqf
since, it was argued, family endowments inherently tie up property in perpetuity and prevent it from efficient development in a free market economy. And since the economy is indispensable to modern development, then impeding material progress amounts to halting the march toward civilization. Thus
waqf
, the main prop of civil society in Islamic civilization for over a millennium, and a chief instrument of its social welfare and safety-net, became synonymous with civilizational retardation and regress. In Kemalist
Turkey, the entire institution of family
waqf
was abolished in 1926, while charitable non-family
waqf
s were nationalized as public welfare institutions.
The process of eradicating
waqf
was nowhere as sudden as it was in Turkey, however. Before the elimination of family
waqf
s altogether in a number of other Muslim countries, the nationalist governments attempted to restrict the scope of the Shari
a laws of
waqf
by aligning them with their policies of refashioning the “model (
nuclear) family.” But in order to accomplish this, the
waqf
administration was not allowed to continue in accordance with its former independent practices, where private administrators acted independently of the “state” although they were generally supervised and occasionally inspected, or audited, by the
qadi
s.
waqf
was nowhere as sudden as it was in Turkey, however. Before the elimination of family
waqf
s altogether in a number of other Muslim countries, the nationalist governments attempted to restrict the scope of the Shari
a laws ofwaqf
by aligning them with their policies of refashioning the “model (
nuclear) family.” But in order to accomplish this, the
waqf
administration was not allowed to continue in accordance with its former independent practices, where private administrators acted independently of the “state” although they were generally supervised and occasionally inspected, or audited, by the
qadi
s.
With their
centralization within the framework of government ministries, the
waqf
s were subjected to unprecedented rules, foremost among which was the requirement of registration for any act pertaining to the creation, revocation, renovation or alteration in the income distribution of any
waqf
.
Egypt led the way in the Middle East region. It declared in 1946 that religious
waqf
s, especially mosques, would be henceforth designated as perpetual, as had been the case under the Shari
a; but not so private or family
waqf
s, which were now limited to sixty years (as in Lebanon) or to the lifetimes of two series of beneficiaries. Upon the dissolution of the
waqf
, the
property would have to revert either to the beneficiaries or to the founders’ heirs, depending on the particular conditions the law set for each circumstance.
centralization within the framework of government ministries, the
waqf
s were subjected to unprecedented rules, foremost among which was the requirement of registration for any act pertaining to the creation, revocation, renovation or alteration in the income distribution of any
waqf
.
Egypt led the way in the Middle East region. It declared in 1946 that religious
waqf
s, especially mosques, would be henceforth designated as perpetual, as had been the case under the Shari
a; but not so private or familywaqf
s, which were now limited to sixty years (as in Lebanon) or to the lifetimes of two series of beneficiaries. Upon the dissolution of the
waqf
, the
property would have to revert either to the beneficiaries or to the founders’ heirs, depending on the particular conditions the law set for each circumstance.
There was, in both
Egypt and Lebanon, yet another major limitation on the freedom of
waqf
founders to establish a foundation whose value was larger than one-third of their inheritable estate. In the event that the
waqf
did exceed the one-third limitation, then the excess on the one-third had to be divided among the heirs according to their shares in the inheritance of that property. This limitation soon became common legislation, having been passed as recently as 1992 in the
Yemen
.
Egypt and Lebanon, yet another major limitation on the freedom of
waqf
founders to establish a foundation whose value was larger than one-third of their inheritable estate. In the event that the
waqf
did exceed the one-third limitation, then the excess on the one-third had to be divided among the heirs according to their shares in the inheritance of that property. This limitation soon became common legislation, having been passed as recently as 1992 in the
Yemen
.
In 1949,
Syria went even further, centralizing the administration of all public
waqf
s in a government ministry, and abolishing all
waqf
s whose beneficiaries were in whole or in part members of a family. The same drastic measure was enacted in
Egypt in 1954, and in 1957 all agricultural lands that had been established as
waqf
were confiscated as part of
Nasser’s nationalization program. A similar program of nationalizing land was undertaken in
Algeria in 1971. A number of other countries also followed suit in abolishing family
waqf
s, some of the last being
Libya, in 1973, and the
United Arab Emirates, in 1980.
Syria went even further, centralizing the administration of all public
waqf
s in a government ministry, and abolishing all
waqf
s whose beneficiaries were in whole or in part members of a family. The same drastic measure was enacted in
Egypt in 1954, and in 1957 all agricultural lands that had been established as
waqf
were confiscated as part of
Nasser’s nationalization program. A similar program of nationalizing land was undertaken in
Algeria in 1971. A number of other countries also followed suit in abolishing family
waqf
s, some of the last being
Libya, in 1973, and the
United Arab Emirates, in 1980.
Yet another method devised to reduce the family
waqf
s was the lifting of several restrictions that ensured perpetuity under traditional Islamic law. The 1991 Algerian
Law stipulated (in addition to abolishing family
waqf
s) that a founder may revoke his own
waqf
deed or change any of its terms. The 1992
Yemeni Law went so far as to bestow on the beneficiaries of a
family
waqf
the right to revoke the deed and to distribute the property according to their shares in the inheritance.
waqf
s was the lifting of several restrictions that ensured perpetuity under traditional Islamic law. The 1991 Algerian
Law stipulated (in addition to abolishing family
waqf
s) that a founder may revoke his own
waqf
deed or change any of its terms. The 1992
Yemeni Law went so far as to bestow on the beneficiaries of a
family
waqf
the right to revoke the deed and to distribute the property according to their shares in the inheritance.
In
South-East Asia, there were fewer changes in the
waqf
law, since by the dawn of the twentieth century the fundamentals of that law had already changed in the region, as they had in the Indian subcontinent. In the
Malay States and the
Straits Settlements, much of the
waqf
had been transformed into what were in effect English trusts, a fact that significantly reduced the interest of donors, which in turn drastically diminished the size of family and even
public endowments. In Indonesia, the basic law that regulated
waqf
was promulgated in 1937 under Dutch colonial rule, but its effects on the
waqf
and its administration have been purely procedural, regulating the modalities of founding and registering
waqf
s. Generally speaking, the economic role of
waqf
in South-East Asia does not seem to have been as central as it was throughout Central Asia, the Middle East and North Africa; which explains why colonialist pressures to abolish so much of the
waqf
did not arise in South East Asia as they did in other parts of the Muslim world
.
South-East Asia, there were fewer changes in the
waqf
law, since by the dawn of the twentieth century the fundamentals of that law had already changed in the region, as they had in the Indian subcontinent. In the
Malay States and the
Straits Settlements, much of the
waqf
had been transformed into what were in effect English trusts, a fact that significantly reduced the interest of donors, which in turn drastically diminished the size of family and even
public endowments. In Indonesia, the basic law that regulated
waqf
was promulgated in 1937 under Dutch colonial rule, but its effects on the
waqf
and its administration have been purely procedural, regulating the modalities of founding and registering
waqf
s. Generally speaking, the economic role of
waqf
in South-East Asia does not seem to have been as central as it was throughout Central Asia, the Middle East and North Africa; which explains why colonialist pressures to abolish so much of the
waqf
did not arise in South East Asia as they did in other parts of the Muslim world
.
1
Marie-Aimée Hélie-Lucas, “The Preferential Symbol for Islamic Identity: Women in Muslim Personal Laws,” in Valentine M. Moghadam, ed.,
Identity Politics and Women: Cultural Reassertions and Feminisms in International Perspective
(Boulder, CO: Westview Press,
1994
), 391–407; Annelies Moors, “Debating Islamic Family Law: Legal Texts and Social Practices,” in M. L. Meriwether and Judith E. Tucker, eds.,
Social History of Women and Gender in the Modern Middle East
(Boulder, CO and Oxford: Westview Press,
1999
), 150.
3
Mary Ann Glendon, “Power and Authority in the Family: New Legal Patterns as Reflections of Changing Ideologies,”
American Journal of Comparative Law
, 23, 1 (1975): 6–9.
4
Partha Chatterjee, “Colonialism, Nationalism, and Colonized Women: The Contest in India,”
American Ethnologist
, 16, 4 (1989): 629–32.
6
Ziba Mir-Hosseini,
Marriage on Trial: A Study of Islamic Family Law
(London: I. B. Tauris, 2000).
7
Tucker, “Revisiting Reform,” 12.
8
Abu Ishaq al-Shirazi,
al-Muhadhdhab fi Fiqh al-Imam al Shafi
, ed. Zakariyya
al-Binaya fi Sharh al-Hidaya
, ed. Muhammad
9
See Article 6, Law of 1929, cited in Immanuel Naveh, “The Tort of Injury and Dissolution of Marriage at the Wife’s Initiative in Egyptian
Mahkamat al-Naqd
Rulings,”
Islamic Law and Society
, 91 (2002): 22, note 16
.
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