By: Amir Elshamy[*]
Published: April 28, 2021
I. Introduction
The Islamic inheritance law has been pre-ordained by Allah in a wise and gradual manner to allow for its compatibility with the judiciary and human nature, which might find it difficult to change their normal practices. The laws of inheritance as laid out by the Qur’an establish the foundation for an equitable disbursement of assets. These laws are primarily in Surah An-Nisa, chapter four (entitled “The Woman”) of the Qur’an.[1] Constantly recurring, on all possible occasions, one hears that a woman inherits only “half of the man,” or to put it linguistically correctly: half of what she would inherit if she were a man. Accordingly, one is usually told that a woman in Islam is only worth half of what she would inherit.
What is the real situation regarding Islamic inheritance law and the role of women in it? This Article sheds some light on this matter by clarifying some misconceptions.
II. Background
First, it is important to note that there are four different instances in Islamic inheritance law regarding the role of women: (1) where the woman receives the same share as the man; (2) where the woman receives more than the man; (3) where the woman receives less than the man; and (4) where the woman receives an inheritance share, whereas the man receives none.[2]
A. Where the woman receives the same share as the man
First, there is the instance where the woman receives the same share as the man.[3] If the deceased leaves behind a father, a mother, and children, then the father and mother both receive one-sixth.[4] If the deceased leaves behind siblings, then the sister and brother both receive one-sixth; and if there are more than two siblings, then they share one-third equally.[5] In total, there are eleven cases which belong to this category.[6]
B. Where the woman receives a higher share than the man
Second, there is the instance where the woman receives more than the man.[7] If a wife is survived by a husband, father, and mother, then the husband receives one-half, father one-sixth, and mother one-third.[8] Fourteen cases exist in this category.[9]
C. Where the woman receives a smaller share than the man
Third, there is the instance where the woman receives less than the man, more precisely the half.[10] Here, Allah commands you regarding your children: the share of the male will be twice that of the female.[11] There are four cases in this category.[12]
D. Where the woman receives a share of the inheritance, but the man goes empty-handed
Fourth and finally, there is the instance where the woman receives an inheritance share, whereas the man receives none.[13] If a wife leaves behind a husband, sister, and paternal half-brother, then the paternal half-brother paternal gets zero shares.[14] However, if it is a paternal half-sister, then she gets one-sixth. In total, there are five cases which belong to this category.[15]
III. Discussion
With those four instances in mind, we can now discuss and clarify some misconceptions about the role of women in Islamic inheritance law.
A. Mathematical conclusions
Considering the above statistics alone, one must conclude that if discrimination is to be spoken of, it would be the man who comes off worse in Islamic inheritance law. If one takes out the cases in which both receive the same amount (eleven) and offsets such cases against each other in which an overreaching for one of the two genders seems obvious, the result is nineteen to four—for women. Therefore, a set of fifteen constellations remain, in which the woman gets more or gets anything at all, and the man goes away empty-handed.
B. Further background concerning relationships and financial obligations
It is also significant at this point not to disregard overall contexts. This includes keeping in view further regulations and principles of the Islamic social and family system. In the area of financial obligations, the following can be concluded:
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- The man must pay alimony alone, whereas the wife does not.[16]
- The husband must share all his income and provide for the wife, the children, and the family, whereas the wife does not.[17]
- The husband shares his inheritance with the wife, children, and family, but the wife does not.[18]
- The man is obliged to pay a bride gift at the wedding, without the woman having to make a gift to the man.[19]
- Also, the material compensation to the victim’s survivors after a negligent homicide must be paid by the male members of the perpetrator’s extended family, without women having to share in it.[20]
The bottom-line is that the man gives more of the inheritance to another woman in marriage as a bridal gift (who was previously “disadvantaged” in the inheritance) and must fulfill provision and maintenance obligations from the remainder. The wife, on the other hand, does not have to fulfill any provision and maintenance obligations.
We thus find that the woman does not have to bear any financial obligations under the Islamic social and family system, except for the payment of the obligatory contribution to defined needy persons, which constitutes the third pillar of Islam.[21] Rather, she benefits from the responsibilities imposed on men. After all, women usually devote themselves to more important things and concerns and—unfortunately—often without any recognition at all.
C. Principles concerning genders
In Islam, views and regulations concerning women and men are considered within three principles: first, equality; second, equal treatment; and third, equal rights. For this, the following verses may speak for themselves:
-
- “So their Lord accepted of them (their supplication and answered them), ‘Never will I allow to be lost the work of any of you, be he male or female. You are (members) one of another . . . .’”[22]
- “And whoever does righteous good deeds, male or female, and is a true believer in the Oneness of Allah (Muslim), such will enter Paradise and not the least injustice, even to the size of a Naqeera (speck on the back of a datestone), will be done to them.”[23]
- “Whoever works righteousness, whether male or female, while he (or she) is a true believer (of Islamic Monotheism) verily, to him We will give a good life (in this world with respect, contentment and lawful provision), and We shall pay them certainly a reward in proportion to the best of what they used to do (i.e.[,] Paradise in the Hereafter).”[24]
- “O mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other (not that ye may despise (each other). Verily the most honoured of you in the sight of Allah is (he who is) the most righteous of you. And Allah has full knowledge and is well acquainted (with all things).”[25]
- “For Muslim men and women,- for believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humble themselves, for men and women who give in Charity, for men and women who fast (and deny themselves), for men and women who guard their chastity, and for men and women who engage much in Allah’s praise,- for them has Allah prepared forgiveness and great reward.”[26]
D. The differences between genders by acknowledging and considering unequal treatment
The topic of heritage discussed here falls into this category. Insofar as someone from a religion-independent point of view critically assesses Islam on a previously defined basis, be this, for instance, that one assumes the absolute equality of the genders, this will definitely lead to the result that men and women, apart from the non-negotiable equality of the genders as well as the equality of these, are also treated unequally at points. Scientifically, any such study from this perspective deserves respect, as methodology and premises have been set out before. Only why do we never hear about the fact that both woman and man are disadvantaged in Islam or about the oppressed man in Islam? Muslims, generally, trust in the wisdom, mercy, and justice of the Creator, which is why unequal treatment is perceived as fitting and dignified in each and every case.[27]
E. Other questions that would be interesting to clarify for this topic
Finally, the following are some other questions that would be interesting to clarify on the topic of Islamic inheritance law and genders’ obligations:
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- How have other religions regulated the question of a woman’s right to inherit?
- The question of historical development—from when and where was the woman entitled to inheritance at all?
- What concepts in general regarding financial obligations of both genders exist in other religions?
- How do secular legislations handle financial obligations of both genders?
- What principles are applied and what are the advantages and disadvantages for men and women in different life situations?
IV. Conclusion and lessons from the discourse on this topic
We must look at individual issues in a fully informed way and with the appropriate background and context to arrive at a fair judgment. We are often simply misinformed in media reports and social discourses (which are almost always fed by the media). We are often informed correctly, but only fragmentarily and out of context. The question of “why” arises at this point. What are the reasons or motives for reporting incorrectly and out of context in a matter such as this?
Footnotes
[1] See Interpretation of the Meaning of the Qur’an in the English Language, The Woman 4:11, 12, 176 (Muhammad Taqi-ud-Din Al-Hilali & Muhammad Muhsin Khan trans., 2020) [hereinafter The Qur’an], https://bit.ly/3sYYMqn.
[2] See Do Women Take Unequal Shares of Inheritance in Islam?, Dar Al-Iftaa Al-Missriyyah, https://bit.ly/2R20KsP (last visited Apr. 28, 2021).
[3] See id.
[4] See The Qur’an, supra note 1, The Woman 4:11.
[5] See id., The Woman 4:12.
[6] See Do Women Take Unequal Shares of Inheritance in Islam?, supra note 2.
[7] See id.
[8] See The Qur’an, supra note 1, The Woman 4:11.
[9] See Do Women Take Unequal Shares of Inheritance in Islam?, supra note 2.
[10] See id.
[11] See The Qur’an, supra note 1, The Woman 4:11.
[12] See Do Women Take Unequal Shares of Inheritance in Islam?, supra note 2.
[13] See id.
[14] See The Qur’an, supra note 1, The Woman 4:176.
[15] See Do Women Take Unequal Shares of Inheritance in Islam?, supra note 2.
[16] See The Qur’an, supra note 1, Divorce 65:6.
[17] See id., The Woman 4:4, 34; id., Divorce 65:6.
[18] See id., The Woman 4:4; id., The Cow 2:233.
[19] See id., The Woman 4:24, 25; id., The Coalition 33:50; id., She That Is to Be Examined 60:10; id., The Table Spread 5:5.
[20] See id., The Woman 4:92.
[21] See id., Repentance 9:18, 34, 60, 103.
[22] Id., The Family of Imran 3:195.
[23] Id., The Woman 4:124.
[24] Id., The Bee 16:97.
[25] Verse (49:13)—English Translation, Qur’an, https://bit.ly/3gOcDNF (last visited Apr. 28, 2021) (closing parentheses for second parenthetical missing in original) (setting forth the Yusuf Ali translation of The Dwellings 49:13).
[26] Verse (33:35)—English Translation, Qur’an, https://bit.ly/2SbkoTF (last visited Apr. 28, 2021) (dashes in original) (setting forth the Yusuf Ali translation of The Combined Forces 33:35).
[27] See Verse (4:40)—English Translation, Qur’an, https://bit.ly/3b1VE75 (last visited Apr. 28, 2021) (setting forth the Yusuf Ali translation of The Women 4:40, among other translations); Verse (8:51)—English Translation, Qur’an, https://bit.ly/3aJL2cM (last visited Apr. 28, 2021) (setting forth the Yusuf Ali translation of The Spoils of War 8:51, among other translations); Verse (18:49)—English Translation, Qur’an, https://bit.ly/3nv3CdU (last visited Apr. 28, 2021) (setting forth the Yusuf Ali translation of The Cave 18:49, among other translations).
About the Author
Amir Elshamy is a Master of Laws candidate at Penn State Law with a cross-cultural personal and professional background. Born in Germany and raised in Egypt, he speaks fluent German, Arabic, and English, and possesses law degrees across different continents. Prior to pursuing his Master of Laws in the USA (North America), he obtained his Bachelor of Laws degree from the Faculty of Law at Alexandria University in Egypt (Africa) and a Master of Laws from the Faculty of Law at Heidelberg University in Germany (Europe). He has cross-continental corporate legal specialty with expertise in the MENA and DACH regions, the U.K., and Malaysia in the energy and automotive industries. He is a blockchain enthusiast, an eDiscovery expert in antitrust and cartel disputes across Europe, and has experience in Islamic law and finance. In addition to his many responsibilities as a law student and student leader, he is also a research assistant for Professor Jud Mathews at Penn State Law.
Suggested Citation: Amir Elshamy, The Law of Inheritance Regarding Women and Principles Concerning the Genders in Islam, Penn St. L. Rev.: F. Blog (Apr. 28, 2021), https://www.pennstatelawreview.org/the-forum/the-law-of-inheritance-regarding-women-and-principles-concerning-the-genders-in-islam/.