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Justice, Not Equality, Is the Objective of Shariah Inheritance Rules

Dr. Jasser Auda
09 September, 2017

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Nevertheless, in certain cases, but not as a general law, the rules of gift (hibah) or bequest/will (wasiyyah) could be applied in order to ensure justice, not necessarily equality.

Examples are donations or wills to a daughter, a son, a wife, a husband, a parent or any other person, if the donor sees that they deserve more than what they will normally inherit because of certain circumstances. This is in line with what Allah (SWT) said:

{Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable} (Al-Baqarah 2:180)

This verse was not abrogated as argued by some scholars. It can certainly be applied and it is very important in ensuring justice in different cases.

I elaborated on this issue elsewhere in some of my writings on critiquing ‘abrogation’. And this is one of the cases that a gift (hibah) can be implemented at the lifetime of the giver of the gift, or a will (wasiyyah) carried out after his/her death before the division of the inheritance. This is indicated by this verse:

{after any bequest you [may have] made or debt} (An-Nisaa’ 4:12)

As for the Hadith: “No bequest for an heir”, many scholars questioned the authenticity of this Hadith. But even if it is authenticated, the rest of it says: “unless the rest of heirs agree”. This guarantees the flexibility that is needed in this area.

The bigger picture is very important. It is necessary that the essential Islamic laws shall be implemented as they were revealed by Allah (SWT), because they have specific intents related to the Islamic social and economic structure.

It is erroneous to confer the title of maqasid ash-Shariah (or objectives of Shariah) on the Western human rights framework. The Shariah has its own rules and regulations that are complete and achieve a higher moral ground when we apply them in totality, not through a partialistic method that compromises the divine intents and higher objectives.

Allah knows the best.

Republished, with few modifications, from the translator’s FB page.

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shariah justice Equality Inheritance Contemporary Issues
About Dr. Jasser Auda
Jasser Auda is a Professor and Al-Shatibi Chair of Maqasid Studies at the International Peace College South Africa, the Executive Director of the Maqasid Institute, a global think tank based in London, and a Visiting Professor of Islamic Law at Carleton University in Canada. He is a Founding and Board Member of the International Union of Muslim Scholars, Member of the European Council for Fatwa and Research, Fellow of the Islamic Fiqh Academy of India, and General Secretary of Yaqazat Feker, a popular youth organization in Egypt. He has a PhD in the philosophy of Islamic law from University of Wales in the UK, and a PhD in systems analysis from University of Waterloo in Canada. Early in his life, he memorized the Quran and studied Fiqh, Usul and Hadith in the halaqas of Al-Azhar Mosque in Cairo. He previously worked as: Founding Director of the Maqasid Center in the Philosophy of Islamic Law in London; Founding Deputy Director of the Center for Islamic Ethics in Doha; professor at the University of Waterloo in Canada, Alexandria University in Egypt, Islamic University of Novi Pazar in Sanjaq, Qatar Faculty of Islamic Studies, and the American University of Sharjah. He lectured and trained on Islam, its law, spirituality and ethics in dozens of other universities and organizations around the world. He wrote 25 books in Arabic and English, some of which were translated to 25 languages.