Succession in Traditional Islamic Law
by William A. Coggins1
As the Islamic population in the U.S. grows, attorneys need to appreciate the cultural and legal foundations of Muslim clients in order to represent their interests adequately. The "wishes of the testator" principle and Missouri's intestate statutory schedule both run counter to traditional Islamic tenets.
I. Cultural Context of Islamic Law Relating to Succession
Islam is unique among religious laws in that, unlike canon law, it is predicated neither on a tangible church structure nor on a specific state format.2 Islamic jurisprudence, with its unique roots, also differs substantially from the legal traditions of Western Europe and the United States. Islamic law is not a monolithic body of rules and regulations. Rather, there are several different "Islamic" laws depending upon whether one is a traditional Sunni, a secular Sunni, a Shiite, or one of a number of smaller Islamic schools of thought. The breadth of nuances that exist between Shi'a Islam, the minority view, and Sunni Islam, the majority, along with its seven primary sub-schools of Islamic interpretation, is too great to discuss in a short format. For that reason, I rely primarily on traditional Sunni Islamic law for the Islamic perspective as I look at the narrow area of succession in Islam. The reader should, however, keep in mind that the "traditional Sunni" view is somewhat analogous to traditional English common law: It is the foundation for contemporary legal customs, but has often been modified by modern statutes in different jurisdictions. I try to compare relevant facets with their counterparts in the Western approach in general and with Missouri practice in particular.
The law of Islam, the Shar'ia, is classified as religious law. Consequently, viewed as a system of law without the context of the religious and ethical provisions of the Qu'ran, the Shar'ia may strike us as a throwback to medieval times. In order to understand the purposes supporting the succession scheme in Islam adequately, one first needs to survey the conditions in existence at its origin. Muhammad's travels in Arabia in the seventh century mark the beginning of the Islamic era.3 Prior to that time, the Arabian Peninsula had been populated predominately by nomads, operating "as traders . . . between Asia, Africa, and the Middle East."4 Much like the later Lex Mercatoria in Europe, the traders themselves enforced the laws.5 Furthermore, pre-Islamic society in Arabia was based on kinship, i.e. the blood relationship. The clan was an extension of the family. Most importantly, an "individual's legal rights were vested [both] in the family and the" clan; each could, and did, represent the individual in legal matters, i.e. "claim[ing] his rights, avenge[ing] his wrongs, inherit[ing] his property, and answer[ing] for his crimes."6
The earlier Arabian culture was polytheistic, with some gods of the pantheon having higher stature than others. One, Allah, was already accepted as "the Creator of Heaven and Earth," but was not worshipped exclusively.7
Islam changed this picture entirely, and shaped and molded Islamic society into something totally different from pre-Islamic society. First, the blood-tie [of the tribe] . . . was abandoned, and replaced by loyalty to the ummah, to the Muslim Community as a whole. When a person became Muslim, he severed his connection with his kith and kin, unless they too became Muslims. . . . [T]he community assumed legal and social rights which were formerly vested in the tribe.8
Islam thus represented a radical change from Arab paganism. It developed not as an irrational sacred law based on continuous revelation, but rather was formed by a rational method of interpretation, the aim of which was to provide norms but not formal rules.
9 Islamic law may be described as the sum total of the personal privileges and duties of all individuals.
By the tenth century, "all critical elements of the Islamic legal system were in place."10 The Islamic economic infrastructure was more advanced than that of the West at that time; partnerships, investors, bankers, moneychangers and bills of exchange (suftajas, or a quasi-check) were present by the middle of the eighth century.11 By the tenth century, Islam was sufficiently established to be viewed as immutable, recognizing no authority as having the power to modify it.12 Most of the traditional rules of succession were established early in Islamic history, as is evidenced by the detailed economic sections of the Qu'ran dealing with inheritance.13
Looking at the immutability of traditional Islam, one sees that even the rulers cannot create law; rather, they only have the capacity to make administrative regulations.14 From 699 -850 A.D., however, four different schools of jurisprudence developed within Sunni Islam.15 While each of the four has doctrinal differences, the integrity of their respective founders was such that all were recognized as equally valid within the framework of orthodox Islam.16 Essentially, all Sunni Muslims regarded all four as correct and true, even though an individual adheres only to one. This big tent approach is akin to fundamentalist American Protestant groups accepting without question the theological correctness of those with more liberal beliefs, and vice-versa.
The writings of the various schools, not unlike continental legal scholars today, provided interpretations of the broadly written Qu'ranic verses and applied them to Muslim society as it developed. Interestingly, "Islamic law provides the unique phenomenon of legal science and not the state playing the part of a legislator, of scholarly handbooks having the force of law . . . what differences could not be eliminated were made innocuous by the mutual recognition of the several schools of law as equally orthodox."17 Essentially, traditional Islam utilized a series of legal fictions to create the appearance of uniformity over a spectrum of differing schools of thought.
II. Traditional Succession in Sunni Islamic Law
Unlike succession in the West, Islam's reforms in inheritance modified the traditional agnate, or patrilineal, method of succession. It elevated the female to a "sharer," albeit at one-half the share, of the male. This status was unlike any other culture of its region and time in its recognition of the right of a female relative to inherit. It thus altered the traditional law of primogeniture, promoting a more equitable division among the successors.18 Again, one needs to keep in mind Islam's broader aim to reform, i.e. reinforcing the family, but not the tribe, while substituting the universal set of Muslims in lieu of the clan. This shift in priorities of inheritance purposely transformed the political and social scheme of pre-Islamic Arabia. By de-emphasizing the tribe's importance, not to mention its source of wealth, Islam theoretically removed some of the motivations for inter-tribal warfare while simultaneously elevating the status of women within the group.19 This focus on the greater good of the whole drives the Islamic disposition of an estate.
"[T]estament[ary power] is restricted to making legacies and to appointing an executor and/or guardian."20 At death, costs related to any "death sickness," a concept discussed later, and funeral costs are deducted. Similar to the Western system, all debts are due and payable immediately upon death. Should the deceased be insolvent, all assets are distributed to the creditors, pro rata if need be.21 Once all debts are paid, next on the list come any legacies or bequests. Unlike the common law, Islam sees no "difference between real and personal property or movables and immovables," so it has no need to differentiate between a bequest and a devise.22 Mindful of the goals underlying Islamic succession, Sunnis set up "two principal restrictions [on] testamentary power" so as to prevent depletion of the residuary to the detriment of the "legal heirs."23 First, the sum total of all bequests cannot exceed one-third of the estate after debts are paid, and second, the testator cannot make a bequest to any legal heir.24 A legal heir is one whose relationship to the deceased is based on 1) a legal relationship and 2) being within a stated Qu'ranic class. A legal relationship is one based on the two principles of legal marriage and bloodline.25
Contemporary succession in the West, however, has a fundamentally different philosophical base. In Missouri and most American jurisdictions, succession is predicated on the freedom of testation, i.e. the intent of the testator. This will of the individual extends even to the point of allowing some restraint of the rights of beneficiaries, e.g. selection of a bride in order to inherit.26 Once the personal representative settles the estate's public and private debts, the testator's will generally controls distribution, absent illegal instructions. Bequests may be for any percentage of the estate, they may go to legal heirs, and may deplete the estate, although most United States jurisdictions now have statutes protecting the surviving family members.27 Nevertheless, substantial independence is granted to the individual to set up non-probate transfers.
Under the Shar'ia, once any bequests are subtracted, those individuals set out as receiving fixed shares take their due. The Qu'ranic fixed shares go respectively to five classes:
a) The daughter [(if none, the daughter's daughter)] and the full sister ([if none,] the half-sister on the father's side) receive one-half, provided . . . no male relatives of the same degree [are alive; if several such female relatives exist,] the daughter and the son's daughter exclude the sister from a share . . . two and more daughters [exclude the half-sister.]
b) The husband receives one-half if there are no children or son's children[; one-fourth otherwise.]
c) The wife receives one-quarter if . . . no children or son's children [exist; otherwise] one-eighth; if [more than one wife survive,] they divide [the share] in equal portions.
d) The mother receives one-third if . . . no children or son's children [survive] and not more than one brother or sister[; otherwise one-sixth.]
e) Half-brothers and half-sisters on the mother's side; if . . . two or more[, they share one-third equally.]28
After the fixed shares are assigned, and if any residue remains, the system returns to the agnatic line, both in the ascendant and descendant degrees.
29 Should no male "outer family" members exist, then the fixed share heirs have their proportions increased to cover the whole estate.
30 Next, should the previous classes not have consumed the estate in its entirety, come, respectively: cognates;
31 certain relationships analogous to adoption; beneficiaries of legatees without the one-third restriction (if no other heirs exist); and, finally, any unclaimed or unassigned share escheats to the public treasury.
32
The "Golden Rule" of Islamic inheritance, then, is that the Qu'ranic, or fixed share, heirs take their allotted portions, with the male agnates then succeeding to the residue. The rule only arrives at the proper amount, however, after first determining who takes, which requires more rules.33 Islamic law reaches to labyrinthine depths in setting out possible scenarios, with certain rules and principles as guides. In situations where the total fractional shares exceed the whole, each share is reduced proportionately. Hence, if a woman dies, leaving a husband (1/2) and two sisters (2/3), the total (7/6) exceeds the whole, so each share is reduced equally.34 If one also factors in such idiosyncratic elements as polygamy, child brides, and the relative ease of divorce and remarriage, the need for more rules quickly becomes evident. To help resolve these potential complications, there is "al-Jabari's rule," which establishes three criteria: 1) the rule of class, 2) the rule of degree, and 3) the rule of strength of blood-tie.35
The "rule of class" provides that any member of a higher class totally excludes any member of a lower class, i.e. only the "nearest" succeeds. The class ranking is:
1. "[T]he son and his [male] descendants;"
2. "[T]he father and his [male] ascendants;"
3. "[D]escendants of the father, [i.e.]. . . (brothers of the deceased and their issue);"
4. "[D]escendants of the paternal grandfather," i.e. uncles of the deceased and their issue;
5. Descendants of the paternal great grandfather and higher, i.e. . . . great uncles and their issue."36
The "rule of degree" adds that the nearest relative to the deceased will exclude a more remote heir within the same class.37 Thus, the deceased's mother's inheriting blocks all female ascendants. Likewise, all female ascendants on the father's side are blocked by the father or a nearer male ascendant.38 Since only the one, fixed share will be allotted per class, the chance to spread the residue further from the center is enhanced. The general rule in Sunni Islamic tradition, then, is that within the same class, the nearer in degree excludes the more remote.
Unlike many Western traditions, the rule of degree under the majority Sunni school bars succession by representation,39 wherein a more remote relative can "represent" a pre-deceased nearer relative. For example: a deceased father, F, is survived by two sons, A and B, and also by G, the son of another son, C. C pre-deceased F. In a jurisdiction recognizing inheritance by representation, G will step into his father's (C's) shoes, resulting in A, B, and G each taking one-third of F's estate. In Islam,40 however, the absence of representation results in A and B each taking one-half of the fixed shares, with G taking nothing.
Finally, the "rule of strength of the blood-tie" applies "to the collateral relatives" listed in classes 3, 4, and 5 above in the rule of class, i.e. nephews, cousins, and great-uncles. The intricacies of the bloodline become more important when one factors in polygamy and the ease of divorce and remarriage. Thus, germane relatives, i.e. "full-blooded," share the same mother and father, thereby providing the most complete linkage by bloodline. "Consanguine relatives," i.e. "half-blooded," come next, but they are divided into two categories, with differing results. The preferential class consists of those with a shared father and different mothers; the secondary class is composed of those with a shared mother and different fathers. The rule for consanguine relatives is that, for relatives of the same class, e.g. nephews, "germanes have priority over consanguines," and those consanguines with a shared father take priority over those with a shared mother.41 These three rules, combined in "al-Jabari's rule" govern all of the asaba, i.e. the nearest relative determination once past the Qu'ranic fixed share heirs.
In contemplating the complexity of the Islamic regime, one should remember that, in the West, the wide latitude of freedom of testamentary power has the potential to cause harm. Consider how many statutes have been enacted to counter such problems as unjust enrichment, the "after-acquired spouse," adoption, step-children, undue influence, ambiguity, revocation of will, revival of wills, and third party beneficiaries, to name a few. The existence of multiple jurisdictions works to create complications as well. Some jurisdictions, e.g. Kansas, allow holographic wills, while others, such as Missouri, do not.42 In situations of an after-acquired spouse, or of one not provided for, statutes allow for some redress by way of the spousal will contest. A spouse may elect to take against the will, thereby moving from the status of a legatee to that of statutorily defined heir in order to claim an alternate, presumably higher, share of the estate - a maneuver completely alien to Islamic succession.43
Since a primary goal of Islamic succession is to protect the interests of the legal heirs, any act potentially impinging upon those interests is ultra vires. Any bequests exceeding the "one-third of net estate" limitation are thus automatically ultra vires. The question arises: When is the estate calculated? Here again, Islam's ability to treat different interpretations equally adds to the complexity. The net estate may be calculated as one of the following, depending on which of the respective schools of Islam applies:
1) At the time of death; or
2) When the transaction is complete and binding, i.e. upon acceptance; or
3) When the transaction is complete, i.e. upon delivery or distribution.44
The other significant area of ultra vires transactions is during the "death sickness." Any gifts, bequests, forbearance of debt, marriage, divorce, or other transaction that may affect the estate and that are initiated during the death sickness are automatically ultra vires. The concept of the "death sickness" is analogous to proximate cause - any intervening cause creates a new, final cause of death. Death sickness does not rely on mental contemplation or intent. Its purpose is instead to control the acts of one dying in fact, rather than merely in contemplation of dying.45 Consequently, it is a relate back concept, requiring a retrospective view beginning at death and then tracing events back to a specific point to determine the start of the death sickness.46 The concept contains elements both of an objective and a subjective theory about the death. They are:47
1) Reasonable grounds for apprehending death;48
2) Actual apprehension of impending death;49
3) The apprehension must continue uninterrupted until the time of death;50
4) Death results from the cause.51
An example helps define the technicality involved. A man, H, "is informed by his doctors" that he has incurable cancer, with "no more than six months to live." H gives his entire estate to his mistress. "Two months later, when his condition had progressively" worsened, H is injured "in a road accident[, dying] two days [later] from the injuries" received in the accident. The result: "[h]is wife and family dependents are left penniless."52 H's gift is not ultra vires because his death sickness was the road accident-related injuries. Since cancer was not the proximate cause of death, ultra vires cannot be invoked to protect the interests of his legal heirs.53 While still alive and not in the death sickness, one can transfer one's assets as one sees fit. That said, social and religious obligations generally prevent so severe an outcome as in the example. Perhaps one may best consider the elaborate structure of Islamic succession rules as a form of mandated intestate succession, with the final determinations only capable of being established upon death.
Indeed, where a deceased is intestate, Missouri, along with most other states, has established a statutory distribution scheme,54 which resembles the Islamic codification. The reach outward for heirs is considerably more limited, however, barring any "laughing heirs"55 beyond the ninth degree of consanguinity from taking.56 Should no heirs be found by the ninth degree, any residue normally escheats to the state,57 as it also does in Islamic law.
The American system, relying on a large degree of testamentary freedom, comes at a cost. That cost is a body of law based on statutes and case law that attempts to clean up all of the myriad loose ends that inevitably derive from such freedom. Islam, for all of its complexity in establishing guidelines, may only appear more complex as long as one keeps one's eyes averted from the inherent convolutions of succession in the Western tradition.
III. Conclusion
The underlying principles of Islamic succession are fundamentally different from those supporting Missouri's, and by extension American, rules of succession. Where one focuses on the good of the family and the larger cultural community, the other targets the intent of the testator. Recognizing these differences in cultural purposes and applying them in appropriate client situations will ensure that the intent of the client will be satisfied, regardless of philosophical background. If a Missouri attorney represents a Muslim in succession matters, she should obtain a sample Islamic will as guidance58 so as to better represent her client. Above all else, the Missouri attorney with a Muslim client should actively work to avoid any situation that could end in intestacy. Intestacy of a Muslim in an American jurisdiction would be anathema to the client. The task of the lawyer, then, is to meet both 1) the statutory requirements for a valid will in Missouri, and 2) the distribution requirements of Shar'ia. Doing otherwise may not only frustrate the will of the testator, but may result in the client's estate not being distributed properly, leading to possible challenges and unanticipated costs to the attorney.
Footnotes
1 William A. Coggins received his B.A. in history from Duke University and his J.D. from the University of Missouri-Kansas City School of Law. Mr. Coggins wishes to thank Professor Collin Picker of the University of Missouri-Kansas City School of Law for his encouragement in this subsmission.
2 Joseph Schacht, An Introduction to Islamic Law, 2 (Oxford University Press, 1964).
3 Schacht at 212.
4 Rodolphe J. A. de Seife, The Shar'ia: An Introduction to the Law of Islam, 17 (Austin & Winfield, 1994).
5 Schacht at 7.
6 de Seife at 19 (citing William H. McNeil and Marilyn Robinson Waldman, Islamic Law in the Modern World, 5-7 (New York, Oxford University Press, 1973).
7 Id. at 18.
8 Id. at 20 (quoting from Introduction to Islamic Civilization, 55 (R. M. Savory, ed., London: Cambridge University Press, 1976).
9 Schacht, at 4.
10 Timur Kuran, The Islamic Commercial Crisis: Institutional Roots of Economic Underdevelopment in the Middle East, 5 (University of Southern California Law School, Los Angeles, CA 2002).
11 Id. at 6-7.
12 de Seife at 36.
13 Kuran at 22.
14 de Seife at 36.
15 Id. The four are: Hanafi, Maliki, Shafi'i, and Hanbali.
16 Id. at 37.
17 Schacht at 210-11.
18 de Seife at 60.
19 N. J. Coulson, Succession in the Muslim Family, 29 (Cambridge University Press, 1971).
20 Schacht at 169.
21 Id.
22 Coulson at 218.
23 Id. at 213.
24 Coulson, at 213-14.
25 Id. at 10.
26 Shapira v. Union Nat'l Bank, 315 N.E.2d 825 (Ohio Ct. App. 1974). Father placed a testamentary restriction on a son's marriage in order to inherit. Court upheld the restriction, saying the father didn't bar the son's marriage completely, but merely narrowed the field to a Jewish girl if he wanted to inherit his share.
27 Section 474.250, RSMo 2000 (exempt property: family bible, one vehicle, all clothing, appliances, furniture); § 474.260, RSMo 2000 (family allowance of one year at the previous standard of living); § 474.290, RSMo 2000 (homestead property, the lesser of $15,000 or ½ of the estate).
28 Schacht at 170-71.
29 Coulson at 30.
30 Schacht at 170.
31 Black's Law Dictionary 252 (7th ed. 1999) ("One who is akin to another." Roman law implies a legitimate marriage).
32 Schacht at 170.
33 Coulson at 31.
34 Schacht at 172.
35 Coulson at 33-35.
36 Id.
37 Coulson at 33-34.
38 Schacht at 173.
39 Coulson at 34.
40 This is one of the many significant differences with Shi'a doctrine, which does recognize representation.
41 Coulson at 35.
42 Missouri does not accept holographic, or hand-written, wills, but Kansas does.
43 Section 474.160, RSMo 2000.
44 Coulson at 235-36.
45 Id. at 259-60.
46 Id. at 262.
47 Id.
48 It must give clear evidence to the world at large that the individual was dying and that the individual must have known it.
49 Mere apprehension is not enough. The apprehension must be of imminent death, and the sickness must have been the proximate cause of death. It also must have begun within one year of death to qualify as proximate cause.
50 The death sickness requires a steady deterioration. Any improvement in condition, if sufficient to remove the apprehension, stops the death sickness calculations. A subsequent relapse starts a new possible death sickness.
51 The only valid proof is death.
52 Coulson at 266.
53 Id.
54 Sections 474.010, RSMo 2000, et seq.
55 Laughing heirs are those past the 5th degree, also known as "strangers to the deceased, but not to the blood."
56 Section 474.010(2)(d), RSMo 2000.
57 Section 474.010(4), RSMo 2000.
58 The Islamic Society of Greater Kansas City has a sample will on its website: http://isgkc.org/will_testament.htm (last visited June 24, 2004).