CHAPTER FIFTEEN

The Women's Portion of the Inheritance

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Inheritance has a close relationship with family law in that it transfers a dead person's "legacy" to his next of kin. Determining which one is entitled to inherit (namely the heirs) depends largely on the family system. According to pre-Islamic Arabs, men only had the right to inherit. This had its basis in the patriarchal system, which remains a feature of the Islamic Sharia.(1)

The Qur´anic basis for regulating the laws of the Sharia in regard to inheritance is found in Sura al-Nisa´ 4:11: "God charges you, concerning your children: to the male the like of the portion of two females, and if they be women above two, then for them two-thirds of what he leaves, but if she be one then to her a half; and to his parents to each one of the two the sixth of what he leaves, if he has children; but if he has no children, and his heirs are his parents, a third to his mother, or, if he has brothers, to his mother a sixth, after any bequest he may bequeath, or any debt. Your fathers and your sons- you know not which out of them is nearer in profit to you. So God apportions; surely God is All-knowing, All-wise."

In regard to widows: "And for you a half of what your wives leave, if they have no children; but if they have children, then for you of what they leave a fourth, after any bequest they may bequeath, or any debt. And for them a fourth of what you leave, if you have no children; but if you have children, then for them of what you leave an eighth, after any bequest you may bequeath, or any debt" (Sura al-Nisa´ 4:12).

The same rule applies to witnessing; for women appear in the scale of obligations as "half human", in that they receive half of what a man does. Yet old commentators, and some modern Muslim writers as well, claim that this position is an improvement in the status of women, as they possessed no inheritance in the pre-Islamic society until the following was revealed: Al-Suddi narrated, " 'God instructs you concerning your children: a son should have a share equivalent to that of two daughters'- The people before Islam used to give neither females nor young boys any inheritance. A man could not make his son his heir unless the latter went to war. `Abd al-Rahman, the brother of Hassan the poet, died and left behind a woman named Umm Kuhha, together with five sisters. The heirs came to take his possessions, so that Umm Kuhha complained to the Prophet. Thereupon God, may he be blessed and uplifted, revealed this verse: 'If the women [left behind] are more than two, then two-thirds of whatever he leaves belongs to them; yet if there is only one, then she has half.' Then he said concerning Umm Kuhha: 'while they [your widows] will have a fourth of anything you leave provided you have left no child. Should you have a child, then they will have an eighth.' "(2)

Ibn Abbas narrated: "Both possessions and will belonged to the parents and the next of kin. God abrogated of this what He wished, and gave the male a double portion of the female."(3)

The Qur´an seems to have attempted to correct the position of women in regards to inheritance, but it did not succeed. We cannot actually expect it to enforce a complete equality between men and women. Ibn Jarir al-Tabari, whose commentary ought to be considered the oldest one to reach us without distortion, is content to recount the traditions of the revelation of the verse without commenting on them. But a person who lived in the same era as al-Tabari found the virtues of man in the implications of this verse and the things that make him superior to women. This person is the philosopher and commentator Fakhr al-Din al-Razi. He says:

No doubt that the woman is less able than man for several reasons: Firstly, she is unable to go out and be seen, since her husband and relative forbid her to do this. Secondly, she is weaker in mind and gullible. Thirdly, whenever she mixes with men, she comes under accusation. So if her inability is proven to be more [than man's inability], she should have a bigger portion of inheritance, but if she is not less able, then nothing but equality [should do her justice]. What is the moral in making her portion half the portion of man?(4)

Al-Razi answers his question, saying: The answer to this includes several points: Firstly, women go out less because man provides for her, and man goes out more because he is the provider for his wife. Naturally, the one who goes out more is in greater need of money. Secondly, man is more complete than women in terms of physical nature, intelligence and religious position; such as competence for judgment and leadership. Also the testimony of a woman is half the testimony of a man. Under such circumstances, men should be favoured with a bit more. Thirdly, woman is deficient in intelligence and given to much lust, thus if she is given a lot of money, her corruption will be great. The poet said: "Emptiness, youth and newness are all a great corruption to a person." God said, "Man [that is mankind] waxes insolent, for he thinks himself self-sufficient,"(5) yet the condition of man is otherwise. Fourth, owing to the perfection of his intelligence, man expends money on commendable things in this life, and [things worthy of] a generous reward in the afterlife; such as assisting relations, aiding the needy, and supporting orphans and widows. Man is able to do all this because he mixes with people a lot, whereas the woman does not necessarily do so, and hence her inability.(6)

Finally, al-Razi, who is known for his intellectual interpretation of the Qur´an, brings up a tradition proving that the Qur´anic rule for the inheritance of women is somehow an eternal one: It was narrated that Ja`far al-Sadiq, the sixth Imam of the Shiites, was asked regarding this issue. He answered, "Eve took a handful of wheat and ate it. She took another handful and hid it, and another one she gave to Adam. When she made her portion two times the portion of man, God turned the matter against her, and thence the portion of woman has become half the portion of man."(7) Al-Nasafi says, "The verse, 'God instructs you concerning your children: a son should have share equivalent to that of two daughters,' refers to when there are a son and two daughters in the family; then [the son] gets two shares, and the daughters each get a share. Yet when there is only a son or two daughters, the son gets all the money and the two daughters get two-thirds."(8)

The Qur´an itself, however, is in desperate need of reform in this regard owing to the great progress humanity has made inequality between the sexes. This is the problem of the Muslim jurist or thinker today. As a Muslim he thinks that his holy Book was brought down (unzila) from Heaven and is authored by Allah. Therefore he cannot afford to admit any fault or failure in it; he is rather obliged to defend it against what people call "the insult to woman". So he claims that what people call an insult to woman, is in fact an honour to her. "There are still some people today who consider the humanity of woman to be less than the humanity of man, and that because of this her portion in inheritance and testimony are half that of the man's. They say that this is the judgment that the ancestors passed, borne out by the Qur´an: "To the male the like of the portion of two females" (Sura al-Nisa´ 4:11), and "If the two be not men, then one man and two women" (Sura al-Baqara 2:282).(9) The truth is that woman's share of inheritance is not based on the supposition that her humanity is less than that of the man, but is based on woman's nature and public life.(10)

The weak point of Shaltut, and of the rest of modern scholars and jurists interested in justifying verses of the Qur´an that cannot be reconciled with the modern age, is that they assume circumstances that can only exist under the Islamic Sharia. So when Shaltut speaks of the woman's role in public life, he means that she is not capable of providing for her family and, thus, increases the burden placed on her husband. Finally, Shaltut considers that "on this basis, a woman is more fortunate than man in the Islamic point of view" because she is able to keep her entire share of an inheritance for herself, while a man must use his share to support his family.(11)

CHAPTER SIXTEEN

The Legal Testimony of Women

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In Islam, a woman's testimony is worth half the testimony of a man's, as both the Qur´an and the Hadith state. The Qur´an says, "...if the two be not men, then one man and two women, such witnesses as you approve of, that if one of the two women errs the other will remind her..." (Sura al-Baqara 2:282). Muhammad accounted for this rule by the deficiency of woman's intelligence: Once the Messenger of God went out to a prayer place to offer the prayer of Greater Bairam or Lesser Bairam. He passed by the women and said, "O women! Give alms, as I have seen that the majority of the dwellers of Hell- fire were you [women]." They asked, "Why is it so, Messenger of God?" He replied, "You curse frequently and are ungrateful to your husbands. I have not seen anyone more deficient in intelligence and religion than you. A cautious sensible man could be led astray by some of you." The women asked, "What is deficient in our intelligence and religion, Messenger of God?" He answered, "Is not the evidence of two women equal to the witness of one man?" They replied in the affirmative. He said, "This is the deficiency in your intelligence. Isn't it true that a woman can neither pray nor fast during her menses?" The women replied in the affirmative. "This is the deficiency in her religion," he said.(1)

Commentators quote this hadith to support the fact that the woman's testimony, in Islam, is worth half of man's testimony.(2) The commentator Fakhr al-Razi speaks of the "forgetfulness of woman" referring to her being "damp and cold in essence".(3)

Ibn Qayyim al-Jawzi justifies the import of Sura al-Baqara 2:282 by saying:

Our leading scholar Ibn Taymiyya, may God show mercy upon him, said, "The divine instruction, 'If there are not two men [available], then one man and two women [may serve] as witnesses from anyone you may approve of, so that if either of them should slip up, then one woman may remind the other,' indicates that the testimony of two women in the place of one man is for the purpose of reminding one another in case one of them slips up. In fact, people usually slip up in such matters. The Prophet referred to this when he said, 'As to the deficiency of their intelligence, the witness of two women are equal to the witness of one man.' Thus he made it clear that dividing their testimony after such a manner is due to the deficiency of their intelligence, not of their religion. Thus it is known that 'The righteousness of women is the same as that of men, nevertheless, their intelligence is less than theirs.' So in such matters as bearing witness, slipping up is not to be feared usually. Women's testimony is treated in this respect as having half the value of men's; their testimony is accepted separately. It depends on things they see, touch, or hear with no need for much intelligence. Conception, the beginning of the month, giving birth, menstruation, or defects under a dress, these are not easily forgotten and it does not need a perfect mind to recognise them, like the meanings of the sayings that they listen to [for instance, the confession of faith, etc...] which have sensible meanings and have long been used in general."(4)

One of the issues subject to heated debate is when should the testimony of a woman be valid. There are traditions affirming that `Umar Ibn al-Khattab and `Ali Ibn Abi Talib said that a woman's testimony in matters like divorce, marriage and hudud (punishments set by the Qur´an, such as cutting off a thief's hand) has no consideration whatsoever.(5) As to the deficiency of intelligence referred to in the Hadith, it is not meant (as the expositor of al-Bukhari claims) as a reproach to them, as it is inborn, but the emphasis on the point serves as a warning against being allured by them.(6)

The old expositors observed (in the texts treating the testimony of the woman in Qur´an and Hadith) the deficiency of woman's intelligence, and argued in many ways that this is true. They said that it is due to the abundance of humidity in her disposition or the origin of her creation. Modern Muslims, however, try to interpret and justify the texts "scientifically". It seems that Muhammad `Abduh and his disciple Muhammad Rashid Ridha are of the few who refer the Qur´an's demand for two women in place of one man to the fact that woman was not specialised in a specific field of practical life, rather than deficiency of her intelligence. The issue is her weak memory when it comes to things that are not a part of her field of specialisation, such as financial transactions and commerce.(7)

Some trying to escape the accusation of being primitive or woman-haters emphasise that women are under the influence of emotions, unlike men, which God kindly took into consideration. Take, for instance, what al-Aqqad said:

The crux of the problem of testimony is justice and the protection of rights and interests, which has conditions based upon principles and the insurance of precaution on a proper basis. The principle that concerns us here is the prevention of interference of emotions, when the emotions dictate in cases of love, hate, and the relationship between relatives and strangers. It is not a just judge who, when faced with this principle, equates the two sexes in terms of their response to the senses. The principle a just judge should observe here, out of concern for people's rights, is to know that women cannot control their emotions as men do, and that he should stand for protecting the truth and stopping injustice. He is not allowed to make this a cause for gaining a greeting or a compliment from some clubs. In the past, people used to indulge themselves in these kinds of greetings and compliments in a certain sector of society, while all the other sectors were permeated with all sorts of grotesque injustice to powerless men and women.(8)

The belief that woman is controlled by emotions, which is supposed to make her less fair and objective, has become the favourite argument given by Muslim jurists and writers at the present time.(9) Shaltut, for example, speaks of cases when only the testimony of men is supposed to be accepted. These are the cases that arouse a woman's uncontrollable emotions. Yet, they are of the opinion that a woman's testimony can be accepted in cases concerned with [the shedding of] blood, if this is the only way that guarantees the truth and if the judge trusts her. There are some, however, who accept her testimony in both cases.(10) Sayyid Qutb refers the "slipping up" of woman (Sura al-Baqara 2:282) to many causes:

This may have arisen from inexperience in the subject of contract, which may cause her not to comprehend all its details, to the extent that the matter won't be as clear in her mind. It may arise from the impulsive nature of the woman, because the biological function of motherhood is certainly apt to put a psychological demand on the woman, while bearing witness to a contract in [such] transactions requires a great amount of freedom from impulse.(11)

CHAPTER SEVENTEEN

The Position of Concubines in Islam

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Islam admits that man has the right to possess concubines along with his wife, or wives, to fulfil his sexual needs. Islam presents a number of women that a Muslim man cannot marry, but it excludes "the ones under the control of one's right hand" from this list: "Forbidden to you [in marriage] are your mothers and [own] daughters, your sisters, your aunts paternal and maternal, your brother's daughters, your sister's ... and [already] wedded women, save what your right hands own. So God prescribes for you. Lawful for you, beyond all that, is that you may seek, using your wealth, in wedlock and not in licence. Such wives as you enjoy thereby, give them their wages apportionate; it is no fault in you in your agreeing together, after the due apportionate. God is All-knowing, All-wise" (Sura al-Nisa´ 4:23,24).

We read in the commentary of al-Tabari that "the ones under your [right hand's] control" refer to the women captives that have been separated from their husbands through their captivity, thus becoming lawful for anyone under the control of whose right hand she may fall without any divorce from her first husband.(1) Abu Qulaba narrated, regarding the verse "Nor [should you marry] any [already] married women, except the ones under your [right hand's] control. Every married woman is unlawful for you except any concubine you possessed while she was already married to a husband on the battlefield; she is lawful for you as long as you give her time to be cleansed."(2) He also said, when asked about the meaning of the verse that allows a man to have intercourse with a woman captive even though she is married,(3) that this interpretation is based, no doubt, on the traditions of Muhammad regarding captive women. Abu Sa`id al-Khudri narrated: "On the day of Hunain, the Messenger of God sent a detachment to Awtas. They arrayed for the battle, fought them, conquered them and took some women captives from them. Yet, some of the friends of the Messenger of God were hesitant [to have sex with them] on account of their unbelieving husbands. Then God revealed: 'Nor [should you marry] any [already] married women.' "(4) Some other commentators interpret "except the ones under your [right hand's] control" as being the women of the people of the Book.(5) Al-Tabari comments on the verse: "This should include all the married women, whether their marriage is considered according to us as valid or not, in which case if we marry them we will be committing fornication; except those whom we buy and keep under the control of our right hands as the Book of God permits, or those whom we are allowed to marry according to the same. The women that God permitted us to marry are all free women except those who are forbidden us owing to close family relation or relationship by marriage. Of the concubines, all those we capture from the enemy [are permitted us], except the ones who fall under the category of those who are illegal for us to marry and the married women of the people of the Book. Capturing these women makes them lawful for the captors after they have been purified and after having brought the truth of God out."(6)

Since the relationship between a man and concubines has nothing to do with the issue of marriage, and they theoretically don't have the rights and competence that free women enjoy, we don't find a separate chapter on them in the sources of jurisprudence. This can be explained by the fact that they aren't regarded as persons, but as possessions belonging to their owner, as was the case in the Old Testament.(7) Therefore, they cannot marry their owners legally. Yet, a slave-owner has the right to marry his female slave off without her permission-- he then acts as her owner, not her guardian. As for the children of that slave, they are slaves like their mother, whether their father is a freeman or a slave, since they belong to their mother's owner. It is true that the Sharia allows a Muslim to enjoy [sexual relations with] all his slave women, provided that they be Muslims [or of the people of the Book] and unmarried, yet it emphasises the great difference between this kind of marriage and regular legal marriage. As long as the man remains the owner of the slave woman, they argue, this same right of ownership prevents him from marrying her. If he wants to marry her, he has to pay her a marriage dowry (sadaq). As to children of the slave from her owner, they are as free as the other children of the man in all respects.(8) A man has the right to marry someone else's slave, if she is a believer, as long as her owner approves of it. The Sharia, however, places additional conditions on this sort of marriage, since the children coming from this marriage have no freedom.(9)

go to CHAPTER 18 - How a Man Should Discipline his Wife

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