Showing posts with label ISLAM. Show all posts
Showing posts with label ISLAM. Show all posts

Saturday, 21 January 2012

Islam, Modernity and Justice for Women


Islam, Modernity and Justice for Women


Understanding Islam
To understand the relationship between Islam and modernity, it is important to begin with an understanding of the religion itself.  Generically, Islam is a religion which brings the mission of liberation and salvation.  Islam came to the world in order to bring a set of new morality because of its metaphysical and humanitarian characters.  It brings not only vertical dimension teachings, but also horizontal aspects for humanity.  It is a teaching deriving from God and oriented toward humanity (Imarah 1998).
Thus, Islam highly respects the dimension of humanity.  The presence of Islam as a moral source can be observed in its achievement in transforming pre-Islamic Arabic nomads into civilized communities with values and morality.  With the presence of Islam, these communities, being used to living in open deserts and highly susceptible to inter-tribal wars and conflicts, achieved success becoming sensitized to elevated values and morality.  Inter-tribal wars and conflict occurred because of their lack of values and morality, which terminated after Islam spread its teachings.  The Koran, Muslims’ holy book and reference, has manifested itself in a language laden with aesthetics, which has the power to influence the nomads’ emotions and awareness in shaping society’s humanitarian vision.
Linguistically, Islam derives from the root words implying the meaning of peace, salvation, maslahah (well-being) and justice.  Islam is a metamorphosis of a three-letter root word (tsulatsi), i.e. salima-yaslamu-salaaman, meaning safe and peaceful.  The four-letter root word (ruba’i) namely aslama-yuslimu-islaman means to save and to bring peace.
Linguistically speaking, Islam has a very fundamental concern for peace, justice, and well-being.  These values should be inwardly internalized by each and every Muslim in the first place.  The feeling of being secure and safe in the mind of every Muslim individual is a basic capital for transcending the same feeling to others, making them sensitized to society’s needs and interests.  This feeling generally grows along with the process of ritualism and ritual practices, which will strengthen one’s commitment and vision on the equality of all human beings.  Islam teaches that there is no hierarchical structure among Muslims, all are equal before God.  The combination of spiritual and ritual practices will produce Muslims who have balanced personalities, inwardly and outwardly, vertically and horizontally.

Islam, modernity and modernization
Is Islam compatible with modernity?  How do Muslims respond to the continuous change of the world which has grown at a rapid and unprecedented rate in the last century? How do we resolve the problem of maintaining the legacy of the past in our religious tradition and integrate change into society and our lives? How do we introduce change smoothly, which is rare and difficult, without disrupting societies and dislocating values?  These are some questions that may trigger a discussion on the relations between Islam and modernity.  There are various responses to this problem, depending on our point of view.  An economist has one kind of answer, a sociologist perhaps another.  A secularist has a certain type of answer, which may be different from a fundamentalist’s. 
Modernity and modernization are words that are continuously contested in contemporary Islamic discourse.  Modernization, the introduction into society of the artifacts of contemporary life such as communications, technology, or household equipment, has permeated into virtually all societies including Muslims.  But modernity, a way of thought and of living in the contemporary world and of accepting change, as part of political and cultural processes by integrating new ideas into society, may not always be present.  One may be using modern technologies and modern communication system, but maintains a past-oriented closed mindset and resists new ideas of modernity such as democracy or pluralism.  The opposite can be true; one may lack modern facilities and live traditionally but adopt the attitudes of modernity.  These people assume an attitude of enquiry into how people make choices, be they moral, personal, economic, or political.  This problem of rational choice is central to modern people. Choice, query and doubt—which imply rationality, debate, discussion and disagreement—are part and parcel of modern mindset.[1]  


Muslims’ responses to modernity

How do Muslims react to modernity?  There are several forms of reactions, but for simplicity purpose they will be grouped into two: the reformist/modernist and the fundamentalist.  The modernists are devout, knowledgeable Muslims whose mission is threefold: first, to define Islam by bringing out the fundamentals in a rational and liberal manner; second, to emphasize, among others, the basic ideals of Islamic brotherhood, tolerance, and social justice; and third, to interpret the teaching of Islam in such a way as to bring out its dynamic character in the context of the intellectual and scientific progress of the modern world.[2]  The modernists sincerely endeavour to reconcile differences between traditional religious doctrine and secular scientific rationalism, between unquestioning faith and reasoned logic, and between continuity of Islamic tradition and modernity.

Reformists/modernists
Many consider Jamal al-Din al-Afghani (1838-1897) as the father of Islamic modernism.  He was foremost a belief in in the transcendence of God and in reason. Independent judgment and interpretation, the so-called ijtihad, is a necessity and the duty of man is to apply the principles of the Qur’an afresh to the problems of the time.  He extremely critical of traditional ulama (religious scholars) who discouraged any new and creative thought and convinced that this type of medieval mentality was primarily responsible for the decline of Muslim power and influence in the world. 
Islam must be active and energetic.  Al-Afghani supported this principle by quoting the Qur’an that “God changes not what is in a people until they change what is in themselves.’  He argued that Europeans had integrated change, and Muslims must do it in their own way by becoming better Muslims.  He thought that Europeans had modernized because they were no longer really Christian; and Muslims, conversely, were weak because they were not really Muslims.[3]
 He questioned the division of knowledge into two categories: Muslim knowledge and European knowledge. He argued that knowledge, which is a noble thing, has no connection with any particular group.  Islam is the closest religion to knowledge and learning and there is no contradiction between (modern) knowledge and the basic principles of Islam.  Al-Afghani strongly recommended acquiring Western knowledge, technology, and services, as long as borrowing from the West was selective and served the basic needs and aspirations of the Muslim people.  In this undertaking, which he believed would raise the standard of living of all Muslims, al-Afghani struggled to initiate an Islamic reformation similar to the successful Christian Reformation sparked by Martin Luther.[4]
The seeds for ijtihad (logical reasoning) planted by al-Afghani were sustained by his most prominent Egyptian student and ardent follower, Muhammad Abduh (1849-1905), who insisted that Muslims could improve their lives and their society only by carefully studying the Qur’an in the light of reason and rationality.  He taught that the Qur’an gives all Muslims the right to differ even with the ulama, if the latter were unreasonable or irrational.  Abduh constantly encouraged Muslims to approach problems in the true spirit of Islam: through analysis, reason and logic.  Because of his emphasis on reason and rationality, he considered Islam and constructive science twin offspring of reason, which “God gave to guide us in the right path.”[5] 
The reformers of Islamic thought and practice such as al-Afghan, Abduh, or the more contemporary like Mahmud Muhammad Taha of Sudan, Muhammad Abed Al-Jabri, Ali Shariati of Iran or Abdurrahman Wahid of Indonesia, are knowledgeable not only about Islam but also about modern non-Islamic Western ideas.  They believe in the convergence of Islamic and universal ethics and eager to introduce them into their own societies.  Hence, unlike the fundamentalists, modernists do not fear or dislike Western ideas and practices.  On the contrary, they welcome non-Islamic ideas and practices that they consider beneficial to the progress and prosperity of Muslim societies. They imaginatively synthesize Islamic and Western ideas to produce a reasonable and relevant reinterpretation of Islamic thought with enlightened cosmopolitan, liberal, and realistic perspectives.  Modernists believe that this tolerance for diversity and willingness to adjust rapidly to a changing environment contributes to the emancipation of the individual Muslim and to the progress of Muslim societies.[6]  

Fundamentalism 
Firstly referred to in the U.S. in the early 1920’s in connection with the battles of leading evangelical Protestants against liberal and progressive spirits of the age, fundamentalism is now observed to exist in all religions.  The term has recently been used reluctantly and apologetically to describe new radical Islamic movements, or to offer substitute terms such as ‘revivalists,’ ‘religious nationalists,’ ‘Islamic radicals,’ ‘political Islam,’ ‘Islamists,’ or ‘extremists.’
For all the controversy, it is clear that fundamentalism can lead to superficiality and reductionism in one’s understanding of the religion.  Deeper spiritual dimension of the religion cannot be captured and reflected because fundamentalisms tend to refer to religious texts rigidly and literally.  Fundamentalist thinking is no more relevant in the currently fast changing world because human problems are so complex and diverse.  Religious texts need to be reinterpreted by putting at the forefront the goal of the religion (maqasid al-syari’ah)..
Two tasks are relevant in understanding fundamentalism: to ascertain why it has emerged in the larger cultural-historical sense—what is the common cause with which fundamentalism is associated; and to explain the particularities of its emergence—why here and not there, why now and not then, why among these groups and not those, and so on (Almond 2003).[7] Almond et all categorize fundamentalist movements into four: 1) world conqueror, 2) world transformer, 3) world creator, and 4) world renouncer.  To the first group they classify, on top, Al-Qaeda. Others include, inter alia, the Revolutionary Shi’ism in Iran, the Sunni radical movements in Egypt (Muslim Brotherhood), the Ulster Protestants (sparked by the entrenched ethnic conflict between Scot and English-derived Protestants and Irish Catholics), the Sikh militants, and the Sri Lankan Buddhist extremists. Meanwhile, the world transformer group comprises among others of the U.S. Protestant fundamentalism and the Pentecostalism in Guatemala.
Ideologically, fundamentalism is marked by several characteristics.[8] First, it reacts against marginalization of the religion. Fundamentalist movements form in reaction to, and in defense against, the processes and consequences of secularization and modernization that have penetrated the larger religious community.  Protestants, Catholics, Muslim, Jews, Hindus, Sikhs and Buddhists are losing their members to the secular world outright or to relativism—the assumption that any given religion is culture-bound and thus relatively true or false. Second, fundamentalists demonstrate moral Manichaeanism, a dualistic worldview which uncompromisingly divides the world into two: the light (the world of the spirit and of the good) and the darkness (the evil).  Third, they are selective.  For example, they accept much of the modern science and modern technology such as radio, television, computer, and so on but refuse the concepts arising out of modernity such as democracy.  Fourth, fundamentalists are absolutist and inerrant.  They steadfastly believe in the infallibility of certain religious interpretation and oppose hermeneutical methods developed by secularized philosophers or critics.  
 Modernity is the common denominator of the outside forces, which is often viewed as an external threat by the fundamentalists.  Failure of modernizing secular state is evident by political decay, the decline of politics into authoritarianism, patrimonialism, corruption, and the dissatisfaction with the project of the post colonial secular states.  The growing saliency of religion in the politics of countries throughout the world is a struggle for cultural liberation in search for authentic identity, political representation, and more equitable development in third world countries.
 The unbalanced pace of modernization and development has led many Muslim countries into developmental crises.  The rapid changes through a process of technological, economic, political, social, and cultural innovation, however, have not been followed by the development of their people.  In contrast to modernization, development denotes the relative welfare of a nation’s population.  In most Muslim countries, appropriate development has not happened because it is neither holistic nor healthy.  Modernization and development have become paradoxical.  Modernization has occurred rapidly, while appropriate development has not. In the West, modernization accompanied the growth of a middle class.  Because of its relative success in the West, modernization has become identified with Westernization and secularization.
The unhappy predicament of the nation-building, modernizing, and secularizing Muslim world has given rise to a number of crises, afflicting the fragile nation states of developing world.[9] Of the five developmental crises—identity, legitimacy, penetration, distribution, participation—the identity crises is often the precipitating crisis, triggering political chaos and national catastrophe.  Rapid modernization has broken the familiarity of traditional society, uprooting people from their traditional communities and moving them to new social environments where they oft become victims of the development.  These conditions are fertile grounds for the breeding of fundamentalism.

Needs to focus on women
During the last three decades the world has witnessed a growing process of Islamization or re-Islamization, the application of Islamic principles and values to personal and public life.  Along with greater religious observance among many individuals of their prayer, fasting, dress code and so on, there grows as well as the creation of new institution such as Islamic banking, insurance companies, and finance houses.  Although many speak of the failure of political Islam, a more widespread and significant reality exists.  Islam is becoming a more visible and dynamic force in Muslim life and societies.
While this growing Islamization has had an impact on states, societies, and communities, women seem to be impacted the most.  More than anything else, gender-related issues present some of the most difficult and complicated challenges to contemporary Islamic law.  Islamic legal system regulating women-related issues, the family law (al-akhwal al-syakhsyiyyah), has remained static and immutable since its codification a thousand years ago.  Time and space have changed, and Muslims are currently living in a completely different socio-cultural and political context, but the conventional shari’a on gender and women remain unchanged.  This same law has been used as a reference on issues like gender relations, polygamy, divorce, inheritance, women’s leadership role, etc. which, unsurprisingly, reaffirms the already patriarchal attitudes of many Muslim males.  Under the guise of uplifting Islamic law, the war against women is launched demonstrating the misuse and abuse of God’s authority in order to impose a suffocating patriarchy among Muslim society.  It is imperative that Muslim legal specialists develop critical ways of dealing with these issues.
The resurgence of Islamic fundamentalism in the last decades has been signified most obviously by its perseverance in reviving Islamic doctrines on women’s status.  Fundamentalists appear to share a common sense of threat from changes in gender relations, triggered by the spread of capitalism and modern concepts of feminism.  They believe in the doctrines that put restrictions on women.  On the basis of shari’a and kodrat (nature) women have to be controlled, subjugated and live in the domestic sphere.  Hasan al-Bana, founder of Muslim Brotherhood in Egypt, expresses his fear of women’s liberation and equality by saying that women’s place is the home, and their primary roles are mother, wife, and housekeeper.  Social mixing between men and women is prohibited.  Another fundamentalist Muslim, Abul A’la al-Mawdudi, founder of Jamiat-I Islami from Pakistan, says that one of the basic human rights is respect for women’s chastity.  To preserve chastity women must be kept household and in purdah.
Cases of discrimination and violence against women in the name of Islam can be documented from worldwide.  Experiences of formalization of shari’a in Muslim countries like Saudi Arabia, Afghanistan, Sudan, Iran, and other gulf countries show that women are systematically marginalized, forced to veil themselves, may not go out without a guardian, or work in public places.  Women are made to become detainees in their husbands’ homes.

In pursuit of Islamic feminism
“Feminism” is a contested term even in their birthplace, the West.  Historical literature is filled with different types of feminists who would certainly find difficulties identifying common ground.  Likewise is the notion “Islamic feminism.”  Scholars and activists are divided in terms of acceptance of this term.  Some consider it problematic as they find it impossible to reconcile between Islam and feminism.  They believe that the power structure in Muslim societies is so male dominated that the epistemology of Islam is contrary to women’s rights.  Some activists who truly work to promote women’s rights in Islam refuse to be called Islamic feminists because of their reluctance to be identified with Western feminism.
Increasing pressures on women following the Islamist movement have induced the birth of Islamic feminism.  Contrary to secular feminists, Muslim feminists keep the faith in the religion and religious teachings while trying to promote egalitarian ethics of Islam by using the female supportive verses of the Qur’an in their fights for women’s rights, especially for women’s access to education.  In Iran the failures of the Islamic Republic of Iran (IRI) to deliver its promise to honour and protect women has led to the emergence of the Islamic challenge, or what the Iranian Muslim feminist Ziba Mir-Hosseini calls “an indigenous locally, produced, feminist consciousness.”[10]
In Indonesia, the emergence of Islamic feminism has been triggered by the growing conservatism in the last decades along with the growing Islamism that has threatened women’s relatively good position and status in society.  This movement neither adopts Western feminism nor follows Middle Eastern model of gender relations, refuses both secularism and Islamism, and is purely based on values and tradition of Islam prevalent in Indonesia.  The ultimate goal of the movement is to pursue justice for women, justice that is promised by Islam to all humankind.

References


[1]   Paper presented at the Islam and Human Rights Fellow Lecture, October 14, 2003, organized by the Islam and Human Rights Project, School of Law, Emory University, Atlanta, GA. 
[2]   Founder and Director, Center for Pesantren and Democracy Studies (CePDeS), Indonesia; Chair, International Relations Department, MUSLIMAT NAHDLATUL ULAMA, Indonesia


[1]  John Cooper, et al. (eds.) Islam and Modernity: Muslim Intellectuals Respond, London: I.B. Tauris, 2000, pp. 2-3.
[2]  Mir Zohair Husain, Global Islamic Politic, New York: HarperCollins College Publishers, 1995, p. 95.
[3]  Derek Hopwood, “The Culture of Modernity in Islam and the Middle East,” in Cooper et al (eds.), Islam and Modernity, pp. 1-2.
[4]  Nikki R. Keddie, Sayyid Jamal al-Din al-Afghani: A Political Biography, Berkeley, CA: University of California Press, 1972, p. 141.
[5]  Husain, Global Islamic Politic, p. 99.
[6]  Ibid, p. 110.
[7] For further information, please refer to Gabriel A. Almond, R. Scott Appleby, and Emmanuel Sivan, Strong Religion: The Rise of Fundamentalisms around the World, Chicago: The University of Chicago Press, 2003.
[8]  Ibid, pp. 93 - 97.
[9]  Mir Zohair Husain, ibid. pp. 162-177 
[10] Ziba Mir-Hosseini, “Women and Politics in Post-Khomeini Iran: Divorce, Veiling, and Emerging Feminist Voice,” in Haleh Afshar (ed.) Women and Politics in the Third World, London: Routledge, 1996, pp. 142-69.  

ISLAM, LAND & PROPERTY RESEARCH SERIES






ISLAM, LAND & PROPERTY
RESEARCH SERIES






 



PAPER 6: ISLAMIC INHERITANCE




 






                                                         

UN-HABITAT


2005





Copyright (C) United Nations Human Settlements Programme (UN-HABITAT), 2005

All Rights reserved

United Nations Human Settlements Programme (UN-HABITAT)
P.O. Box 30030, Nairobi, Kenya
Tel: +254 20 621 234
Fax: +254 20 624 266
Web: www.unhabitat.org

Disclaimer

The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning delimitation of its frontiers or boundaries, or regarding its economic system or degree of development. The analysis, conclusions and recommendations of this publication do not necessarily reflect the views of the United Nations Human Settlements Programme, the Governing Council of the United Nations Human Settlements Programme, or its Member States.


Further Information: 

This series contains eight brief position papers commissioned by UN-HABITAT.  For a fuller treatment of the issues see Siraj Sait and Hilary Lim, Human Rights in Islam: Law, Property and Access to Land (London: Zed 2006) ISBN Numbers Paperback: 1 84277 811 0 Hardback:  1 84277 810 2. For longer versions of the papers and further information regarding the UN-HABITAT research and activities contact

Clarissa Augustinus, Chief
Land & Tenure Section,
Shelter Branch,
United Nations Human Settlements Programme (UN-HABITAT)
P.O. Box 30030
Nairobi 00100, Kenya
E-mail: clarissa.augustinus@unhabitat.org
Web site: www.unhabitat.org


HS/792/05E
ISBN: 92-1-131792-4
            92-1-131785-1 (Series)



Acknowledgements

Global Coordinator and Substantive Editor:  Clarissa Augustinus, Chief, Land & Tenure Section, Shelter Branch, UN-HABITAT with the assistance of Florian Bruyas, UN-HABITAT

Researchers: M. Siraj Sait and Dr. Hilary Lim, University of East London, United Kingdom

Editing: Roman Rollnick and Tom Osanjo, UN-HABITAT

-------------------------------------------------------------------------------------------------------

Partner Details
 
M. Siraj Sait
Dr. Hilary Lim
School of Law
University of East London
Duncan House
High Street

Stratford

London E15 2JB
UNITED KINGDOM
 
Telephone: +44 208 223 2113/2836



This research and publication was made possible through funding to the UN-HABITAT’s Global Campaign for Secure Tenure from the Governments of Belgium, Italy and Netherlands.















Paper 6:  Islamic Inheritance Laws and Systems

INDEX OF CONTENTS









INTRODUCTION TO THE ISLAM, LAND & PROPERTY RESEARCH SERIES

The global mandate and activities of UN-HABITAT (United Nations Human Settlements Programme) in promoting access to land and protecting security of tenure are derived from a range of international human rights and development standards. While land, property and housing rights are generally cross-cultural and asserted within every socio-economic and political system, it is recognised that practice regarding their regulation and protection may take different forms. The Land and Tenure Section, Shelter Branch of UN-HABITAT has carried out  systematic research into distinctive land, housing and property issues and approaches in various regions of the world including Africa, Latin America and the Balkans. It uses a ‘best practices’ approach to develop affordable, pro-poor and flexible tenure types and land tools, particularly for women. These tools are incorporated into UN-HABITAT’s global campaigns and programmes as well as made available to governments, civil society and all stakeholders for their advocacy work and for implementation of relevant laws and policies.
During its work in a range of countries from Afghanistan to Indonesia, UN-HABITAT has been increasingly aware of the importance of Islamic land tenure conceptions and land rights.  Over 20 percent of the world’s population is Muslim but there has been little research on the complex and distinctive forms of land tenure and land rights. Too often global reviews of land tenure are undertaken without taking Islamic laws relating to land sufficiently into account. The Land and Tenure Section of UN-HABITAT therefore commissioned two experts Mr. M. Siraj Sait and Dr. Hilary Lim from University of East London, United Kingdom to carry out a year long in depth study of the Islamic and other dimensions of land and property rights in the Muslim world. 
The objective of this research was to produce a body of material, through eight position papers, accompanied by a database, with proposed strategies which could enhance the knowledge and augment the capacity of UN-HABITAT and its partners to work more effectively in Muslim contexts. However, these papers have been written for a general audience without any assumption of knowledge regarding Islam, law or property rights and are therefore offer basic information as well as an opportunity to revisit first principles.
The general findings of the research are that there are distinctive Islamic conceptions of land and property rights which are varied in practice throughout the Muslim world. Though Islamic law and human rights are often an important factor in the conceptualisation and application, they intersect with State, customary and international norms in various ways. In doing so, they potentially offer opportunities for the development of ‘authentic’ Islamic land tools which can support the campaign for the realization of fuller land rights for various sections of Muslim societies, including women.  However, in order to facilitate that role, the various stakeholders must constructively review the normative and methodological Islamic frameworks and their relationship with other systems of formal and informal land tenure.
Paper I on Islamic Land theories and Applications contextualises and introduces Islamic property and land concepts as part of a sophisticated and alternate land framework running alongside international regimes. The Islamic property rights framework conceives of land as a sacred trust but promotes individual ownership with a re-distributive ethos. It argues that engagement with Islamic dimensions of land may potentially support land rights initiatives in Muslim societies and has implications for programmes relating to land administration, land registration, urban planning and environmental sustainability. Position Paper II on Islamic Land Tenure and Reforms explores how land tenure concepts, categorisations and arrangements within the Islamic world are multi-faceted, generally distinctive and certainly varied. This paper explores the socio-historical context and development of Islamic land tenure regimes leading to the ‘web of tenure’ in contemporary Muslim societies. An appreciation of the historical context of land tenure in Muslim societies and the range of land tenure forms contributes towards development of authentic and innovative strategies for enhancing access to land and land rights.

Position Paper III on Islamic Law, Land and Methodologies finds Islamic law (Shari'a) an important factor influencing land rights and tenure systems in Muslim societies. Islamic law can be seen as an evolving, responsive and assimilating sphere of competing ideologies and interests, though it is a site of struggle between conservatives and liberals. An appreciation of the distinctive features and sources of Islamic law, its methodologies and diversity in application and its dispute resolution mechanisms would contribute towards strategies aimed at enhancing security of tenure. Position Paper IV Islamic Human Rights and Land sets out to examine the relationship between international human rights and Islamic conceptions of human rights in theory and practice. It argues that, with respect to land rights, the difference between these two sets of rights appears minimal and a sensitive and careful recognition of Islamic religious and political sensitivities can help deliver international human rights more effectively in Muslim societies, without offending Islamic principles.

Position Paper V Muslim Women’s Rights to Property explores the nature and scope of women’s rights to property and land under Islamic law (Shari'a) through a socio-historical background to women's property rights, an appraisal of modern legal reforms and the avenues for enhancing their security of tenure.  It argues that despite assumptions to the contrary, there are potential empowering strategies for women through Islamic law which can enhance women’s access to land and enforcement of their other property rights. Position Paper VI Islamic Inheritance Laws and Systems considers how Muslim societies generally derived their inheritance rules from religious sources for the division of an individual's property upon death, some of which are controversial. Yet, it argues that the application of these formal inheritance rules pertaining to designated shares must be understood in a broader socio-cultural and economic context and within wider inheritance systems of practice.

Position Paper VII Islamic Endowments (Waqf) and Indigenous Philanthropy outlines how the endowment (waqf plural awqaf) is a key Islamic institution, which has incorporated within its legal sphere vast areas of land within the Muslim world, connected firmly with the religious precept of charity. Modern reforms in several Muslim countries have abolished, nationalised or highly regulated endowments but the endowment (waqf) remains influential and there are clear signs of its reinvigoration. The paper evaluates the role for the Islamic endowment (waqf) in strategies to improve security of tenure based on its legal foundations, history and socio-economic impacts. Position Paper VIII Islamic Credit and Microfinance considers the increasing demand from within Islamic communities that financial services be compliant with Islamic law (Shari'a). This paper explores the Islamic context which stimulates such alternative credit systems, the key distinguishing features of the Islamic banking models, the development of Islamic microfinance models and the practical challenges to these innovations. It considers how Islamic finance, banking principles and credit, particularly housing microfinance, can contribute to security of tenure and in transforming the lives of the poor.

The findings of this study were discussed at a two day workshop on ‘Land tenure and Land law tools in the Middle East and North Africa’ in Cairo, Egypt on December 15-16 2005. This preparatory meeting for World Urban Forum (WUF III) 2006 was part of a meeting hosted by the Government of Egypt and organised by United Nations Economic and Social Commission for Western Asia (ESCWA), UN-HABITAT, and the League of Arab States. This research was also presented at the Expert Group Meeting (EGM) at Bangkok, Thailand on ‘Secure Land Tenure: New legal frameworks and tools in Asia and Pacific' December 7-9 2005 organised by UN-HABITAT, United Nations Economic and Social Commission for Asia and Pacific (UNESCAP), International Federation of Surveyors (FIG) and World Bank.

Through this preliminary study, UN-HABITAT and its partners seek to discuss and develop appropriate strategies through identification and development of innovative and pro-poor land tools in their particular context.


Paper 6:  Islamic Inheritance Laws and Systems

Any person contemplating death and considering the future distribution of his or her property will place in the balance a whole range of factors, which will be specific to his or her personal, family and social circumstances. ….. In Muslim societies, a person's ability to make such calculations is frustrated, in theory, by the compulsory Islamic inheritance rules that impose substantial constraints upon the freedom of a person … to determine the devolution of his property'.
                                                                                                                (Powers 1999:  1167)

OVERVIEW

Inheritance is often treated as peripheral to, or semi-detached from, general debates and policy formation concerning security of tenure, land rights, land reform or regularisation.  However, inheritance is one of the commonest ways of acquiring land or access to land. In Muslim societies generally, irrespective of the nature of faith of the Muslims concerned, inheritance rules are derived from religious sources for the division of an individual's property upon death.  The rules are in the main rigorously implemented by the family, and community, and upheld by the State.  Yet, the application of these formal inheritance rules pertaining to designated shares must be understood in a broader socio-cultural and economic context and within wider inheritance systems of practice. Demystifying the complex dynamics of Islamic inheritance rules and practice may reveal important information for the implementation of strategies designed to enhance security of tenure. 

Scope of this Position Paper: This position paper contextualizes the Islamic Inheritance Systems in Section 1. It examines some of the key features of the Islamic legal rules of inheritance, including the benefits and disadvantages of the fixed share system in Section 2. It explores some of the legal rules on inheritance as part of wider Islamic inheritance systems and their implications in Section 3. Section 4 examines post-inheritance adjustment practices including consolidation and renunciation of inheritance rights, with particular reference to the position of women. Section 5 considers proposals for, and contemporary debates around, legal reform of Islamic inheritance rules.  Section 6 offers five strategies for empowerment through inheritance rights

* Demystify Islamic inheritance
* Promote Islamic reasoning (ijtihad)
* Facilitate social legitimacy
* Resist abuse of consolidation & renunciation
* Secure land tenure



6.1      CONTEXTUALISING ISLAMIC LAWS OF INHERITANCE

6.1.1   Islamic laws of inheritance


While modern reforms and changes have influenced several fields of Islamic law, the detailed classical inheritance structure has been one of the enduring legacies of classical Islamic law or the Shari’a.

The formal inheritance rules have several distinctive features.  First, there are predetermined percentage shares for pre-selected beneficiaries while at the same time allowing some flexibility through bequests and legitimate estate planning. Second, a Muslim’s ability to bequeath is restricted to only one-third of an individual's estate under certain rules with the remaining two-thirds devolving according to the compulsory inheritance rules. Third, the scheme of mandatory fixed shares is remarkably inclusive and provides access to property to a range of family members. Finally, the inheritance rights cannot be generally taken away. Rather than a set of abstract rules, Islamic inheritance rules are intended to facilitate distinctive Islamic conceptions of property, family, community, empowerment and justice.

6.1.2   What property may be inherited?    


The Islamic law of succession makes no distinction between different kinds of property.  It is immaterial whether property is real (land) or personal, movable or immovable - it covers all assets.

6.1.3   Who may inherit property?


Given the wide range of beneficiaries that the Islamic inheritance system seeks to cater to through a sophisticated balancing process, the results can turn out to be hairsplitting permutations and combinations varying according to a given scenario. There are some differences in Sunni and Shi’a positions.

6.1.4   Benefits of the rules for fixed shares


There exist some easily perceived potential benefits to a scheme of specified shares, as compared with systems of inheritance which provide greater apparent legal freedom to the individual seeking to control devolution of his/her property upon death. 

6.1.5   Fragmentation of property vs. cohesiveness of the extended family


The fixed inheritance share rules – which apply to big or small estates, residential or commercial property, liquid assets or investments – can lead to minute divisions, making fragmentation of property a problem, particularly, although not exclusively, in relation to agricultural land. 

6.2      INHERITANCE RULES AS PART OF ISLAMIC INHERITANCE SYSTEMS


A variety of legal tools have developed in different contexts to permit individuals to make arrangements for the transmission of property, according to their own determination. 

6.2.1   Islamic wills (wasaya) 


Gifts can be made to take effect upon death, by means of a will, but only up to one-third of an individual's estate can be bequeathed in this manner with the remaining two-thirds devolving according to the compulsory rules. 

6.2.2   Women's inheritance shares as part of a wider property system


Female relatives and spouses are accorded shares, but half that of a male in a similar position and male relatives are more likely to inherit and to enjoy a greater share of the estate.  This difference in treatment between men and women is usually explained by reference to the fact that it is also a feature of Islamic law that a wife is entitled to maintenance from her husband, in terms of shelter, clothing, food and medical care. Despite the argument that women are compensated for their unequal inheritance shares through such material obligations on the part of husbands to their wives (and other tools such as dower and gift), the apparent formal paper inequality remains a matter of vigorous debate and gives rise to calls for legal reform.

6.2.3   Unborn, illegitimate and adopted children and orphaned grandchildren


Since a child is deemed to be in existence from the point of conception, a child in the womb is competent to inherit within Islamic law.  However, an illegitimate child whose paternity was contested may not inherit from the wife's husband, although that child may inherit from its mother and its mother's family.

Adoption is not recognised under Islamic law (Shari'a), so inheritance through legal adoption into a family is not feasible.  A bequest in favour of an adopted child may not exceed one-third of an estate, under the rules.   An orphaned grandchild is unlikely to inherit from a grandparent under Islamic inheritance principles. 

6.2.4   'Estate planning' and lifetime transfers


There are a variety of legal techniques that a person contemplating death may deploy as a form of 'estate planning', in order to avoid the strictures of the compulsory inheritance rules. These include the lifetime transfer or gift (hiba) and the establishment of a family endowment (waqf ahli). The tools deployed for estate planning are subject to debate but the modernisation of Islamic societies has resulted in a propensity towards several kinds of estate planning.

6.2.5   Family endowments


Another legal strategy for an individual seeking to control the devolution of his or her property is to establish a family endowment (waqf ahli). A major source of women's historic wealth appears to have arisen from beneficial interests in endowment (waqf) properties, but these endowments have now either been abolished or subjected to severe limitations in most countries. 

6.2.6  Non-registration of land to avoid inheritance rules


There is evidence in some Muslim communities that individuals keep their property outside the formal land registration system, because of the costs involved and to avoid giving women their allotted shares under the Islamic inheritance rules. 

6.3      POST-INHERITANCE ADJUSTMENTS

6.3.1   Women, law and custom


Inheritance law often lies at the heart of discussions about gender equality and women's property rights.

6.3.2   Consolidation of property


In a process known as consolidation, the division of an estate into fractional shares may be followed by a series of sales and exchanges designed to reduce the number of co-owners.  It is women who usually exchange their rights in land for movable property, cash or gold and it is women in the main who decide to give up their fractional shares, particularly in land.    

6.3.3   Renunciation of inheritance rights


There is a widespread practice after the inheritance shares are distributed whereby a person, typically a woman, may renounce her inheritance rights (tanazul).  While gender rights’ advocates are justifiably concerned over women being forced to renounce their limited property rights, the reality may be far more complex. It may be a choice over empowerment through property or enhanced family support.

6.4      LEGAL REFORMS TO INHERITANCE SYSTEMS

6.4.1   Codification and secularisation


There has been little legislative interference with the compulsory inheritance rules and daughters continue to enjoy only half as much as their brothers from the estate of a parent, which is a cause of concern for some women's organisations.

6.4.2   Changes regarding adopted children, grandchildren and others


One example of a change in inheritance law in several countries, though subject to juristic debate, which has been widely justified on the basis of the Qu'ranic "verse of bequest" and social practice is the obligatory bequest for orphaned grandchildren.

6.4.3   Islamic inheritance systems and the equality debate

  
The differential treatment on the basis of gender regarding inheritance shares, on the face of it, violates international human rights. A number of NGOs and liberal personalities in Muslim countries have called for equal inheritance rights. However, a more dominant position is the general position, even from Muslim women, that what God has ordained for shares cannot be changed.

6.4.4   Opportunities for empowering women


The Islamic inheritance rules despite their apparent discriminatory nature, where implemented in letter and spirit and construed holistically, provide a solid starting point for women – and other members of the family - in asserting the full range of their property rights. 

6.5      STRATEGIES FOR EMPOWERMENT THROUGH INHERITANCE RIGHTS

6.5.1   Demystify Islamic inheritance


General knowledge of the basic legal system pertaining to inheritance appears to be embedded within Islamic communities, but the specific rights are generally not publicised, and certainly not widely articulated or agitated.  This is due to several factors, the widespread illiteracy of particularly Muslim women in some societies, a perception that the rules are complex, which is deliberately reinforced by authority figures and the marginality of certain categories within families and communities. Though inheritance is only a part of the wider Islamic property regime, inheritance rules are presented as a complete divinely ordained code without room for compensation through other tools. With regard to entitlement of shares and the impact of estate planning, consolidation of property and renunciation of shares, those involved and affected must have the fora and opportunities to discuss and deal with the impact of their decisions. 

6.5.2   Promote Islamic reasoning (ijtihad)


Islamic inheritance is closely associated with Islamic identities and social structures and a general concern about secularisation as a threat to Islam. As such, there is widespread resistance against anything other than very limited state intervention into this area, even amongst women. The reforms – towards materialising the egalitarian and distributive aspects of Islamic law- have to come primarily from within the community and be compatible with the Islamic frameworks. The main features of the inheritance rules appear to be clear-cut, particularly when they are deemed to be clear, and unambiguous (qat’i) and not readily open to any modification.  However, any set of Islamic principles are to be re-interpreted and applied in the backdrop of the objectives of Islamic law (maqasid e sharia). Despite the limited forays into the realm of Islamic inheritance rules, the return to first principles and continuing development of these principles suggest that several inheritance practices may in the near future be subjected to ijtihad (interpretation as an Islamic jurisprudential tool) leading to newer forms of interpretation.   

6.5.3   Facilitate social legitimacy


Inheritance rules have to be understood within the myriad systems of property relations, including such matters as dower and maintenance, and within inheritance systems, of legitimate methods of estate planning. Legal techniques, notably lifetime transfers and the establishment of family endowments, have developed to enable individuals to determine the devolution of their property to meet perceived social needs, to avoid fragmentation of agricultural land and family businesses.  In some communities the lifetime transfer is seen as a means of adjusting for discrimination against women under the inheritance rules, but in other contexts to prevent family property moving out of male control or into the hands of 'outsiders'.  Where these ‘legal’ techniques serve to achieve progressive and inclusive results, efforts to enhance their social legitimacy must be facilitated.

6.5.4   Resist abuse of consolidation and renunciation


The transfer of property through inheritance is only one point in the cycle. The subsequent processes of consolidation and renunciation of the inherited property must also be queried. Given the propensity towards consolidation of family property and its smooth intergenerational transfer, property- particularly farmland or a family business- is likely to be transmitted and retained in the hands of men.   The social convention being to the effect that, men as the producers should manage and control both the business and the land it sits upon.  Moreover there are compelling pressures on women, of affection, notions of honour and shame, and economic necessity, which have a bearing on whether they will assert a claim upon a share in an inheritance, agree to sell a share, whether for cash or symbolically, or whether to renounce a share.  These are not Islamic principles but socio-economic and cultural practices which have to be tested for their utility and legitimacy, in view of the evolving family and community structures.

6.5.5   Promote Security of  land tenure


Strategies designed to enhance security of tenure and to relieve poverty within Islamic societies, inheritance law and inheritance systems, particularly as they pertain to women, should not be regarded as a peripheral matter.  Inheritance is an essential component in access to land.  The inheritance process is not dependent on formal legal decrees on inheritance which are only one element of the picture.  The specifics of the inheritance system in any context must be demystified, including the dominant legal techniques of estate planning in that context, the motivation for using those legal techniques and the social meanings attributed to the use of estate planning methods.  However, in many political and social contexts the full implementation of the inheritance rules under Islamic law could be a realisable goal and a good starting point to extend rights in land to less powerful members of society.  


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