Inheritance laws
In pre-Islamic Arabia, women were not accorded
rights of inheritance. This was changed by the
Qur±àn, which prescribed that certain inheritance
shares be allotted to women since they were now to
be counted as heirs of the deceased. The Qur±àn
stipulated that men were to provide for and assure
the economic stability of the family. Due to this
requirement, they were allotted double the share of
inheritance of women. Economic independence of
the woman was further assured by the fact that no
male relative, including the husband, could touch
her property. The husband was required to main-
tain her from his own resources. Moreover, women
could and often did initiate their own businesses.
In contrast to the Arabian patrilineal system
where agnatic heirs (≠asaba) were the principal heirs
before Islam, the Qur±àn did not recognize their
rights to inherit. In this the Qur±àn sought to reform
the position of female relatives. All legal schools
accept the distribution of fixed shares to the
Qur±ànic heirs. However, pre-Islamic customary
tribal laws prevailed in the Sunnìlaw of inher-
itance. All four schools grant distant agnates
(≠asaba) the remains of shares after the distribution
to heirs that are stipulated by the Qur±àn. These dis-
tant agnates thus excluded the rights of the daugh-
ters of the deceased. Female heirs would only
receive their share if there were no agnate heirs. By
recognizing the claims of agnate collaterals, Sunnì
law emphasized the tribal concept of an extended
family.
Even in the laws of inheritance differences that
affected women emerged between the Sunnìschools.
When no Qur±ànic heir or agnate relative survived
the deceased, the jurists of Kufa allowed non-
agnate relatives (daughters and sister’s children) to
inherit. Such cognate relatives (called dhawùal-
ar™àm) were not allowed to inherit in Medina. In
the absence of agnate relatives, the Màlikìs main-
tained that the public treasury is a “rescue heir,”
whereas the other three schools allow the cognate
relatives such as the children of the deceased’s
daughter or sister to succeed in the absence of
Qur±ànic heirs or agnate relatives. It was the patri-
lineal society of Medina that denied women such
rights of inheritance. In many instances, therefore,
the cosmopolitan society and extraneous cultural
influences in Kufa led to women enjoying greater
rights.
Other miscellaneous differences emerged be-
tween the schools with respect to their treatment of
women. The view that the £anafìs empower
women more than the other schools is supported in
their ruling that the voluntary fast of a woman444 law: the four sunnìschools of family law
without her husband’s consent is reprehensible but
not prohibited. In contrast, the other three schools
state that it is not permissible for a woman to
observe a supererogatory fast without her hus-
band’s consent if the fast will interfere with any of
his rights over her. Most jurists have held that
women cannot lead men in prayers, hold judicial
positions, or be political leaders. However, Abù
£anìfa asserted that a woman can act as a judge in
all commercial and civil cases but not in criminal
and personal injury cases. Some Màlikìjurists
maintained that a woman can serve as a judge in
any case.
The jurists concur on the issue of women’s testi-
mony in the courts. Based on the Qur±ànic verse
2:282, which stipulates that when one man is not
available to witness a business contract two women
should replace him, the jurists of the four schools
extended this requirement in all cases of testimony.
The verse has also been used to support the alleged
inferiority of a woman’s evidence as compared to
that of a man.
In recent times, courts have departed from the
doctrines expounded in the classical legal tracts.
Many Muslim countries have enforced the eclectic
principle of borrowing from different law schools
and have required the involvement of the judicial
process so as to ensure a more equitable system
and to reform the law to accord with modern
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