PRE ISLAMIC INHERITANCE SYSTEM (Review on the Justice Values in its Division of

Inheritance)

By Zaenul Mahmudi

ABSTRACT

Every society has its own ways to solve the problems they face, including the inheritance problems. The pre-Islamic Arab society had local wisdom to determine the heirs deserved to inherit, and who did not that was adapted to the socio-cultural conditions of the time. The pre-Islamic Arab society established that the heirs deserving the inheritance properties were men responsible and able to bear arms on the battlefield. Young children, frail men and women were not considered eligible to receive inheritance properties made a symbol of leadership and responsibility to the family and tribe. Inheritance properties received by men were not spent for their own benefit, but returned to their families and tribes as a form of responsibility and dedication over the trust that family and tribe submitted. Inheritance properties were used to support the families and tribes, in addition to the cost of war and diplomacy with other tribes.

A. BackgroundIslamic law the God had revealed to Muhammad not only

for the single nation, but for all nations all over the world. Islamic

law is not reserved towards certain period, but the whole period

since the God has sent Muhammad as the Prophet. Islamic law is

not only for the people who lived in the 7th century BC, but also

those who live in the 21st century and beyond. Islamic law is not

The article is presented in Round Table Discussion held by ICP Unit on Friday, January, 11 2013

only for the Arabic people but also for those who live in Tokyo,

Paris, and Montreal.1 Therefore, the Sharia should be able to adapt

to the development of culture, people and time as legal maxim

says “al-Islâm shâlih li kull zamân wa makân”.

Islamic law was not revealed in the society having no

culture, but in the society already had certain culture, traditions,

and rules as their local wisdom for governing their living. Islamic

law when it had sent into the Arabian society did not necessarily

ignore their existing local wisdom, even it adopted and adapted

the culture and tradition deeply rooted in the community in which

were then given the spirit and values of Islam. Therefore, Bassam

Tibi said that the existence of religion in relation to society and its

development has a dual role; model of reality and the model for

reality. The first model means that the Islamic religion is

institutions whose existence can not be separated from the

existing Arabic ones while the second model has the notion that

religion is values and social institutions made for change and

community development.

Islamic law of inheritance was one example where pre

Islamic-Arabian tradition and inheritance influence the inheritance

concept understood by Sunni schools. There are some concepts

indicate the influence of the pre-Islamic Arabian culture is on the

Islamic inheritance system, such as the concept of ‘ashabah that,

as Robertson Smith said, originally means those who go to battle

together i.e. have a common blood-feud.2 This concept was later

adopted by the Islamic inheritance system as male heirs whose

relationship to the deceased did not inserted by female heirs

(agnatic heirs).1 Muhammad Shahrûr, Nahw Usûl Jadîdah li al-Fiqh al-Islâmî; Fiqh al-Mar’ah: al-washiyyah, al-Irth, al-qiwâmah, al-Ta‘addudiyyah, al-Libâs, (Damaskus: al-Ahâlî, 2000), 21-22.2 Robertson Smith, Kinship and Marriage in Early Arabia, (London: Adam and Charles Black, 1903), 65

Adoption and adaptation of the pre-Islamic inheritance

system done by Islamic inheritance system shows that the

tradition of inheritance applied to the pre-Islamic Arab society is

not bad at all, but the author believes that pre-Islamic inheritance

system is the local wisdom best applied in the division of

properties in the context of society at the time. Therefore, this

paper intends to examine the pre Islamic local wisdom in the

division of the properties applied in the pre-Islamic Arabian

society, particularly in relation to the values of justice.

B. Theoretical perspective

1. Inheritance System

Inheritance system is the system of the division of the

properties as agreed upon by the community in determining

who the heirs are, how many shares they get and how its

distribution to be done. Inheritance system that has been

strongly institutionalized in Muslim world society is Sunni and

Shiites inheritance systems, while in Indonesian context besides

the Sunni inheritance system applied in the Muslim society,

Indonesian government also applies Indonesian-Islamic law of

inheritance ruled in the President Instruction No. 1/1991 on the

Compilation of Islamic Law Book II. Besides, there are some

new legal reasoning about inheritance proposed by Hazairin,

namely bilateral inheritance concepts.

In the Sunni inheritance systems, the heirs is divided in

three groups, namely the sharers (dzawî al-furûdl), the agnatic

heirs (‘ashabah) and kindred heirs (dzawî al-arhâm). The shares

for dzawî al-furûdl consist of six shares, namely: half, third,

fourth, sixth, eighth and two-thirds depending on who sharers

are and how their condition are. And the method of inheritance

there are some conditions, namely: when the heirs consist of

only the sharers (dzawî al-furûdl), when the heirs consist of the

sharers and agnatic heirs (‘ashabah), and when there are no the

sharers and agnatic heirs but only kindred heirs (dzawî al-

arhâm).

Besides the Sunni inheritance system, there is Shiite

inheritance system. The Shiite inheritance system divided the

heirs into three classes inheriting hierarchically. It means that

the closest heirs to the deceased will eliminate more remote

ones. The first class consists of: a) true father and mother, and

b) son and daughter and their descendants how low so ever.

The second class consists of a) true grandfather and

grandmother how high so ever, and b) brother and sister

whether they are full, consanguine or uterine and their

descendants. And the third class consists of a) uncle and aunt

from male lines and their descendants, and b) uncle and aunt

from female lines and their descendants.3 The heirs of three

classes groped by Shiite inheritance can be divided into two

gropus, namely the sharers (dzû fardl) and dzû qarabât

consisting of agnatic heirs (‘ashabah) and kindred heirs (dzawî

al-arhâm) as termed by Sunni inheritance system. It means that

‘ashabah and dzawî al-arhâm in Shiite inheritance system have

same status.

2. Justice

Justice in Indonesian is called “keadilan” coming from the

word "adil" having prefix “ke-“ and suffix “-an”. It has several

meanings : a) the same weight, not biased; non-partisan, and b)

the thing should be, while justice means things (actions,

treatment etc.) are fair. The word “keadilan” is Indonesian

language from Arabic “adl” which means “mâ qâma fî al-nufûs

3 Muhammad Hasan al-Najafî, Jawâhir al-Kalâm fî Sharh Syarâ’i‘ al-Islâm, volume 39 (Beirut: Dâr Ihyâ’ al-Turâts al-‘Arabî, , 1981), 7-8.

annahu mustaqîm wa huwa dlidd al-jawr” (something exists in

the soul which he believe it as something straight and fair. it is

an opposite of injustice). “Adl” also has the meaning legal

provisions liked by someone else and issuing the law correctly.4

Justice, in the view of Rif'at al-Tahtawi is equality before

the law (al-musah amâm al-qanûn) or life in accordance with

the agreed laws and regulations.5 The word “adl” always

associated with the word “i‘tidâl” meaning balance. Sometimes

the word “‘adl” is related to right of people, so it means to give

someone the thing according to his right" and "to prevent

injustice", because injustice of tyranny is beyond the

determined limits.

In Khan’s view, the focus of justice ('adl) meaning is a balance

and proportional division rather than equity among people,

because equality contradict justice in certain condition.6 It can

be felt when the awards and salary given to people who have a

high social status or positions are equated with those who have

low ones.

There are several kinds of justice, namely distributive

justice, retributive justice, corrective justice, procedural justice,

commutative justice, legal justice, social justice, and restorative

justice. Aristotle (384-322 BC) in his Nicomachean Ethics

distinguishes between general justice and specific justice. The

first encompasses all the good that a person uses in treating

others, while the second encompasses the distribution of

certain honor, wealth, and property equally and fairly. Aristotle

said: "For if the persons are not equal, they will not have equal

4 Al-Khalîl ibn Ahmad al-Farahidî, Kitab al-Ain; Murattaban Alâ Huruf al-Mu’jam, juz III, (Beirut: Dâr al-Kutub al-‘Ilmiyyah, 2003), 110.5 ‘Azzat Qarniy, al-‘Adâlah wa al-Hurriyah fi Fajr al-Nahdlah al-‘Arabiyyah al-Hadîtsah, (Kuwait: Alam al-Ma’rifah, 1980), 73.6 Muhammad Akram Khan, Islamic Economics and Finance : A Glossary, (London and New York: Routledge Taylor & Francis Group, 2003), 3.

shares; it is when equals possess or are allotted unequal shares,

or persons not equal, equal shares that quarrels and complaints

arise."7 The people who do not have same position do not get

the same shares. It also means that when they have the same

position then given unequal shares or who do not have same

positions given the same shares will cause strife between them.

C. Pre-Islamic Inheritance System

The pre-Islamic Arabian society is tribal society based on the

patriarchal family system8 in which the male person has a special

position rather than female ones. This male special position is not

only in acquiring the rights, but also in carrying on their family

and tribe survival. Obligations and responsibilities carried on by

the male person commensurate with their right in acquiring

properties.

Based on historical information, the geographical conditions

in most of Arabia land is desert, a few meadows and springs called

oasis. The number of meadows and oasis are not proportional to

the number of people and tribes living in Arabia. The geographical

conditions makes Arabian people live in nomadic style. They have

to move from one place to another to look for a decent life for their

tribes, families and cattle. Given that Arabian bedouin seek

pasture and oasis altogether, the scramble and fight between them

often occur to demonstrate their responsibility and obligation to

protect their families and tribes.

This condition makes the men who have the power and

responsibility (qiwâmah) become a major factor for the

sustainability of families and tribes. If a certain tribe had not been

7 Duane F. Alwin, “Social Justice” in Encyclopedia of Sociology Second Edition. Volume 4 (New York: Macmillan Reference USA, 2000), 2696.8 JND Anderson, Islamic Law in The Modern World, (New York: New York Press, 1959), 60

had men who had the power and responsibility, the tribe would

have been destroyed by other tribes and not able to find food and

water for the sustainability of their tribes and families. Therefore,

the pre-Islamic Arab tribal life, gave the men who have the power

(qiwâmah) has a strategic role and become the foundation of the

sustainability of their tribes and families.

The pre-Islamic Arabian society applied the "law of the

jungle". It means that the tribes that were strong would win and

those were weak would loss. This condition encouraged the

emergence of patriarchal family system, because, men naturally

have more physical strength than that of women. Men are at the

vanguard and became a fortress to fight enemies who will attack

and destroy them. The men also became the backbone for their

tribes and families in economical life, because they had

responsibility to nurture their tribes, families, and cattle.

There is no security for a man other than an unwritten law

“blood feud” in which if one of tribe’s members was killed by one

of another tribe’s members, he must be avenged by his agnatic

relatives. And if the killing tribe want to avoid further bloodshed,

they have had to provide bloodwite as a compensation to “heirs of

blood”.9 In this unwritten law, only the agnatic families of those

men killed or killing who can look for revenge or responsible to

pay the fine as compensation for the death of a person.

This law also has implications for entitled heirs to properties

of inheritance, namely agnatic heirs (‘ashabah) who has

responsibility to avenge and pay fine. Females, their descendants,

and small children have no rights as those of nearest male

relatives do.10 The sequence of agnatic relatives entitled the

inheritance is as follows: male descendants will eliminate male

9 Ibid, 60-61.10 Ibid, 61.

ascendants and collaterals, and male ascendants will eliminate

collaterals; collateral from father takes precedence over uncle

from paternal grandfather and so on. So, it can be concluded that

the sequence of agnatic heirs entitled to inheritance follows the

rule “closest relatives will eliminate more remote ones”.

There are several grounds of inheritance applied by pre

Islamic Arabia that can be grouped into two groups, namely:

lineage or blood relatives and specific causes. The lineage or blood

relative causes have no clear rules, there is no equity between

male and female. The rule used is the man who is strong to bear

arms and fight will be entitled to inheritance.11 The factor “bear

arms and fight” used by pre Islamic inheritance system as

prerequisite for men to be entitled to inheritance follows natural

interest to sustain their tribes, families, and cattle.

With regard to the heirs from lineage grounds, Asaf A. A.

Fyzee reveals that the principles of the pre-Islamic customary law

may be summarized as follows: 1) The nearest male agnate or

Agnates (‘ashabat) succeeded, 2) Females and cognates were

excluded, 3) Descendants were preferred to ascendants, and

ascendants to collaterals, and 4) Where the agnates were equally

distant, the estate was divided per capita. 12

The second factor consist of two aspects, namely: oath of

allegiance (al-hilf) and adoption of child (al-tabannî). Oath of

allegiance was often done by the pre Islamic Arabia between

individuals, groups, and tribes to strengthen themselves in facing

enemy attacks that disrupt the safety and survival of their families

and tribes. In the oath, they promised and said: “Damî damuka wa

hadmî hadmuka wa tarithunî wa arithuka wa yathlubu bî wa 11 Maryam Ahmad al-Daghistânî, al-Mawârîts fî al-Syarî‘ah al-Islâmiyyah alâ Madzâhib al-Arba‘ah wa al-A‘mâl ‘alaih fi al-Mahâkim al-Mishriyyah, (Kairo: Jâmi‘ah al-Azhar, 2001), 5-6.12 Asaaf A. A. Fyzee, Outlines of Muhammadan Law, (Bombay: Oxford University Press, 1974), 389

yathlubu bika” (My blood is also your blood, my ruin is also your

ruin, you inherit me and I inherit you, this oath binds me and binds

you). When one of the two tribes who made this allegiance died,

then the tribe’s partner is entitled to the property of the deceased

of sixth. 13

The second cause is adoption of child. The adoption was a

tradition used to be applied in pre Islamic Arabia and continued to

the early days of Islam, even the Prophet himself had adopted a

boy named Zayd ibn Haritsah and called Zayd ibn Muhammad. In

the tradition of child adoption, the lineage of child adopted would

be shifted from biological father to adopting father and the

adopted child was treated as if he was a biological child. He got

inheritance properties as son did, because they had same and

equal position. 14 They inherit each other when his brother died

first.

D. The values of Justice of Pre-Islamic Inheritance System

Principles and values of justice used in the distribution of

inheritance properties are distributive justice or the principles of

al-ghunm bi al-ghurm. In which, Aristotle concludes that

distributive justice does not necessitate the division of properties

should be the same for everyone, even equate the shares to all

person may be an injustice deed when there are different position,

services, and social status beteen them. Principle and value of

justice can be achieved when the division of property regards

social status, services, and responsibility a person has in his

family, community or other organizations.

Distributive justice can be implemented fairly if the existing

social system has given equal opportunity for everyone to gain

13 Ahmad al-Daghistânî, al-Mawârîts, 6.14 Ibid, 6

position or particular services in which everyone, both men and

women are given equal opportunity to express themselves and

have equal opportunity to obtain office, service and responsibility

that has implications for differences in the number of properties

they get in the distribution of inheritance. In other words,

distributive justice can be implemented correctly if procedural

justice has been well implemented.

Therefore, to assess the justice of pre-Islamic inheritance

system, the justice used is distributive one, which means that the

number of properties some heirs get is in accordance with the

burden and responsibility of the heirs in their families. The more

the heirs bear heavy burden and responsibility, the more the heirs

obtain the number of properties. On the contrary, the less the

heirs bear burden and responsibility, the less the heirs get the

properties. The principle of distributive justice (al-ghunm bi al-

ghurm) used in the distribution of inheritance is revealed by

Mahmûd Muhammad Bâbalilî as follows:

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"Provisions of Islamic inheritance is a holistic provision based on the principle of “al-ghunm bi al-ghurm” (the booty got is comparable to loss in paying a fine '). It means that people

15Mahmûd Muhammad Bâbalilî, al-Syarî ‘ah al-Islâmiyyah; Syarî ‘at al-‘Adl wa al-Fadl, (Mekkah: Râbithah al-‘A’lam al-Islâmiî, 1414H), 57-59.

entitled to the properties of the deceased are those who responsible to provide expenditure for the deceased during his lifetime. If the closest relatives is not capable, the responsibility is delegated to more remote ones. ... the number of shares some heirs get varies according to their responsibilities. The female heirs’ share is half that of the male when they are daughters or wives. Sometimes, the share of female and male heirs is same as uterine sisters and brothers, and parents (father and mother), each gets sixth when the deceased has far‘ al-wârits. If Shariah, under some conditions provide a share for male heirs twice that of female heirs, because male heirs have economic responsibility not be owned by female heirs, male heirs are responsible to provide expenditure for their wives, children, and parents”.

Before Islam, women had not gained true identity as a human

being yet. Women have not been considered as a human but

properties or cattle. They could not inherit, even could be

inherited by the heirs of her deceased husband. This condition was

affected by the harsh conditions at the time in which women who

are physically weak have no any merit. Their existence was a

burden for the tribe in maintaining its survival from enemies’

threats and attacks. They are not able to bear arms and fight the

enemies, and even they spent foodstuff destined for those who

were able to fight enemies. If the principle of distribution of

inheritance "al-ghunm bi al-ghurm" is applied, it is reasonable if

women do not get the inheritance, because they have no any merit

and services for sustainability of their tribe and families. A tribe

may find difficulties when members of his tribe consisted of many

women in which the nomad habit of moving can be more difficult

when they have to move them.

Therefore, it is understandable why the principle of the

distribution of inheritance in pre-Islamic inheritance system was

based on the male lineage supplemented with qiwâmah or the

ability to fight, protect and nurture the family and tribe. Men who

has qiwâmah can be counted on to defend and continue the

sustainability of their tribe and family.

Mind set "fight among tribes" in pre Islamic society

encourages and reinforces the patrilineal kinship system and then

patriarchal system, in which the position of men is central in the

life tribe. The mind set necessitates the strength to bear arms as

the parameters for who is become the leader in tribal life. This

social condition in turn implies the exclusion of women from the

constellation of tribal life. Domestic role of women and their

heredity roles were not regarded and immersed in the atmosphere

of struggle, hostility, and fight in the tribal life.

Oath of allegiance (al-hilf) conducted between tribes in

maintaining the existence of tribe was often done in the pre-

Islamic Arabian society. Mutual cooperation between them implies

the existence of rights of inheritance rights for oath of allegiance

partners, in which if one member of the tribe died, the allying tribe

are entitled to a sixth of the properties. The distribution of

inheritance in the perspective of distributive justice (al-ghunm bi

al-ghurm), then a partner of the oath of allegiance is eligible for

inheritance, because they had a merit and services in defending

and securing their tribe’s partner.

Adoption is also a reason for allotting an inheritance to the

child adopted. Adopted child, in pre-Islamic society is equated with

biological children, especially in matters of inheritance. They are

entitled to inheritance if his adoptive parents died. The adopted

child was of course male person able to sustain the existence of

the adoptive father’s tribe. Therefore, granting them inheritance is

also in line with the principle of distributive justice or "al-ghunm bi

al-ghurm", because he has a merit and services for the

sustainability of the adoptive tribe.

E. Closing Remark

The study of pre-Islamic inheritance system has significance

in the development of law in which the development of the law can

not be separated from the social, economic and political as Islamic

legal maxim quoted by Ibn Qayyim al-Jawziyyah says “al-hukm

yadûr ma‘a ‘illatihi wa sababihi wujûdan wa ‘adaman16 and al-

fatwâ tataghayyar bi taghayyur al-zamân, wa al-makân, wa al-

ahwâl.17. On the other hand, this study informs that every society

has a unique tradition and culture or local wisdom based on the

principles of welfare and justice understood and agreed by each

community. Certain society local wisdoms is not necessarily good

in the view of other society as the pre Islamic Arabia local wisdom

in the view of contemporary society. However, local wisdom of the

distribution of inheritance applied by pre Islamic Inheritance

system is the best method to maintain justice among people in

tribal life.

REFERENCES

Alwin, Duane F., “Social Justice” in Encyclopedia of Sociology Second Edition. Volume 4 New York: Macmillan Reference USA, 2000.

Anderson, JND, Islamic Law in The Modern World, New York: New York Press, 1959.

Bâbalilî, Mahmûd Muhammad, al-Syarî ‘ah al-Islâmiyyah; Syarî ‘at al-‘Adl wa al-Fadl, Mekkah: Râbithah al-‘A’lam al-Islâmiî, 1414H.

Daghistânî al-, Maryam Ahmad, al-Mawârîts fî al-Syarî‘ah al-Islâmiyyah alâ Madzâhib al-Arba‘ah wa al-A‘mâl ‘alaih fi al-Mahâkim al-Mishriyyah, Kairo: Jâmi‘ah al-Azhar, 2001.

Farahidî al-, Al-Khalîl ibn Ahmad, Kitab al-Ain; Murattaban Alâ Huruf al-Mu’jam, juz III, Beirut: Dâr al-Kutub al-‘Ilmiyyah, 2003.

16Ibn Qayyim al-Jawziyyah, I‘lâm al-Muwaqqi‘în ‘an Rabb al-‘Âlamîn, Vol. 5. (Riyâdl: Dâr Ibn al-Jawzî, 1423 H.), 528.17Ibid, Vol. 6, 114.

Fyzee, Asaaf A. A., Outlines of Muhammadan Law, Bombay: Oxford University Press, 1974.

Jawziyyah al-, Ibn Qayyim, I‘lâm al-Muwaqqi‘în ‘an Rabb al-‘Âlamîn, Vol. 5. Riyâdl: Dâr Ibn al-Jawzî, 1423 H.

Khan, Muhammad Akram, Islamic Economics and Finance : A Glossary, London and New York: Routledge Taylor & Francis Group, 2003.

Najafî al-, Muhammad Hasan, Jawâhir al-Kalâm fî Sharh Syarâ’i‘ al-Islâm, volume 39. Beirut: Dâr Ihyâ’ al-Turâts al-‘Arabî, , 1981.

Qarniy, ‘Azzat, al-‘Adâlah wa al-Hurriyah fi Fajr al-Nahdlah al-‘Arabiyyah al-Hadîtsah, Kuwait: Alam al-Ma’rifah, 1980.

Shahrûr, Muhammad, Nahw Usûl Jadîdah li al-Fiqh al-Islâmî; Fiqh al-Mar’ah: al-washiyyah, al-Irth, al-qiwâmah, al-Ta‘addudiyyah, al-Libâs, Damaskus: al-Ahâlî, 2000.

Smith, Robertson, Kinship and Marriage in Early Arabia, London: Adam and Charles Black, 1903.