Q. As a convert, on occasion I hear about Islamic laws related to inheritance. Neither my wife nor my children are Muslim, and some will tell me that the most they would be eligible for is one third of any property in my name upon my demise. I'm told that any disagreement with this puts me at odds with all four schools of jurisprudence in Sunni Islam and subsequently outside the fold of Islam. Others say things like there is a loophole since I don't live in a Muslim country, so I am obligated to follow the laws of the land and not the shari’a.
I personally think that the Qur'an establishes a principle making family ties more important than religious ties in the instructions related to adoption. Even if a Muslim wanted to adopt another Muslim and pass on his name and inheritance, he is not permitted to do so, and so must call an individual by the family name of his father and give him his due from his father's estate. I believe that family ties take precedence over religious ones in matters of dependency. But people quote ahadith about how the Prophet said that non-Muslims are ineligible to inherit from Muslims and that I'm not qualified to think that I can carry one principle from one section of the Qur'an and apply it to another since there are ahadith and fatawa that say otherwise.
So, I guess I have two questions. I am still a very new Muslim, but I'm trying to learn as much as I can and have started studying classical Arabic grammar. At what point do you think a person has studied enough to engage in ijtihad? I think the classical system of granting ijaza is a little medieval and paternalistic. My second question is how do we handle issues like the one I mentioned above when a reading of the ahadith and the fiqh of Islam seems to point to something that is arguably unethical and oppressive in a modern context?
A. The concept of ijtihad is a specialist, juristic, enterprise that assumes a scholarly background. It applies to such verdicts that affect the general Muslim community in the manner of an authoritative analysis. It does NOT deny the right of an individual to make decisions that are specific to circumstances. In fact, the laws of Islam do cover this, and so we see, for example, that the Qur'an orders us to follow our contracts, as in 2:177. As an American citizen, you are beholden to follow the laws of this country, along with its norms, that see individuals as equal. Logic also forces us to accept that the Qur'anic verses were revealed at a time when women and children were still struggling for their rights, and that in such a context, their mere recognition as being inheritors would have been seen as outside the norm and truly progressive. We have now moved on beyond that era, and while we may respect the medieval jurists and interpreters for their scholarship and piety, we must place them in their time and context. As long as something is unethical from your understanding of the Qur'an, then you have to act upon that interpretation. The Qur’an states that God will not judge you beyond your capability; the corollary is that God will also take you to task based upon your capability. This means that if you see your children as equal, then their inheritance ought to reflect that, especially since, in the United States, we do not use gender to promote inequality. The Qur'an's stipulations regarding shares are to be seen as temporally prescriptive, and not as permanently obligatory.
Regarding the issue of adoption, I think many Muslims have misunderstood the aim of the ayah. It is about identity in a culture that focuses very much on a person being able to trace his/her ancestry. The Qur'an is simply speaking about a child maintaining its identity, not about any legal aspects regarding adoption as such. When it comes to inheritance, you are correct because once again, the issue is on preventing discord between the heirs of an estate in the situational context. It also prevents disinheritance of one's biological children. Nonetheless, inasmuch as the Qur'an fosters this, it does not deny that individual circumstances may differ, such as when God says to Noah that the son over whom he was lamenting was not of his household. Each individual then must make his decision based on the particular context. We hope that, in your quest to be a good Muslim and spouse, that you adhere to what your innermost being dictates, and that the Qur'an's edict to be an upholder of justice, and a loving spouse and parent, impacts most strongly.
Webmaster’s note: Nasr Abu Zaid argued that the Qur’an, while a divine revelation, was also very much a cultural text; it had to be or the 7th century Arabs would have rejected it. For more on Abu Zaid’s viewpoints, click here and here.
Posted November 6, 2013