Cool Concepts
From Issue: 565 [Read full issue]
Istihsan
With regard to the Shariah law of inheritance, the conventional argument given in support of the larger share that men get in inheritance compared to women, namely that men are responsible for providing women with maintenance both before and after marriage, as well as some remedial financial provisions that help divorced women, still holds good for the vast majority of women in areas and countries where employment and education opportunities are severely limited for women. The picture is also not always a negative one as Muslim men, in many countries and cultures, tend to be on the whole protective of women in the family. We may nevertheless, draw attention to two points on the subject of inheritance:
Bequests (a gift of personal property by will) can be used to adjust some instances of unequal distribution of shares under the Quranic laws of inheritance. The testator (a person who makes a will ) enjoys some flexibility with regards to making a bequest and how he or she may choose to use it. Under the Sunni law of succession, the testator is entitled to make a bequest of up to one third of his or her estate in favour of an outsider, or even a legal heir as under the Shia law. Sunni law also permits making a bequest to a legal heir, who may be suffering disability and need, with the consent of the other surviving heirs, which Shia law allows even without such consent, provided it does not exceed the limit of one third.
Some instances of obvious imbalance in the distribution of inheritance can also be addressed by recourse to the principle of istihsan (juristic preference), especially in cases where strict enforcement of the existing law leads to unfair results in the distribution of family wealth. In such situations istihsan authorizes the judge and the jurist to find an alternative and a preferable solution to the case before them which would realize considerations of equity and fairness. Muslim jurists and judges have not made an effective use of the resources of istihsan. In the renowned case of al-mushtarakah (the apportioned) which was decided by caliph Umar bin al-Khattab, a woman was survived by her husband, mother, two germane (full brothers) and two uterine brothers (half brothers having the same mother but a different father.). The Quranic rules of inheritance were strictly applied but the result was such that the two maternal brothers received one-third of the estate and the two full brothers were totally excluded. This is because the former are Quranic sharers (dhawul-furud) whereas the latter belong to the category of residuaries (asabah). The former must take their shares first and what is left is then distributed among the residuaries. The full brothers complained to the caliph and forcefully pleaded with him about the justice of their case. According to reports, the full brothers addressed the caliph in the following terms: suppose our father was a donkey (which is why the case is also known as al-himariyyah), we still shared the same mother with our maternal brothers. The caliph was hesitant to act in the face of the clear Quranic mandate, yet he decided on equitable grounds, after a month of consultation with the leading Companions, that all the brothers should share equally in the one-third.
Unfair results of a similar type can occasionally arise, sometimes due to technical reasons, which could be addressed by recourse to istihsan, and the judges should not hesitate to do so when istihsan can be invoked to serve the ideals of equitable distribution. To give an example, suppose that a deceased person is survived by a son and a daughter. During the lifetime of his father the son had bad relations with him and did not bother to seek his forgiveness even during the months of his last illness, while the daughter took the responsibility and spent much of her hard-earned income on her father's medical bills before he died. When this happened, however, the son was quick to claim double the share of his sister in inheritance. This would be the kind of case where istihsan can be invoked to remedy the unfair outcome that is anticipated from a strict conformity to the normal rules of inheritance. This is the basic rationale of the doctrine of istihsan, to remedy unfair results which may arise from a strict application of the existing rules of Shariah. Istihsan does not seek to introduce new law. It is rather designed so as to address case by case situations where strict implementation of the existing law may lead to unfair results. We need lawmakers, judges and jurists of great professional fortitude to make laws and adjudicate cases that break away with the prevailing mindset of taqlid (blind following).
Compiled From:
"Shariah Law - An Introduction" - Mohammad Hashim Kamali, pp. 273-275