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Footnotes

Principle of `Awl Overrides Qur’ánic Explicit Determination of Shares

The classical example of accretive constructionism can be found in the ruling of `Umar that literally undone the entire Qur’ánic system of shares namely the ruling that institutionalized the principle of `awl.  In order to understand its impact, let us first begin by introducing the circumstances that leads to the reliance on `awl.

The second part of inheritance verses begins at verse twelve.  If it were to be read out of the exegetical context, it only makes sense if the inheritance of the spouses is distributed separately from the children’s.  That is, to undertake the distribution of inheritance in stages.  In other words, the marriage could be looked at as a business partnership.  Thus, upon death, the spouse’s share will be determined first; then in a second stage, the spouse’s inheritance will be considered as the entire estate and from that, the shares of the rest of inheritors will be determined independently.  Adopting this approach would eliminate the problems encountered in the classical <imáriyah and mubáhalah cases that were the origin of new principles similar to `awl.

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Shi`ite scholars reported a detailed tradition wherein Ibn `Abbás objected to the principle of `awl as being an innovation not in conformity with the general principles of the Qur’án.  He was asked by Zufar Ibn Aws al-Ba#rí about the first person to institute `awl, to which he replied:

 `Umar Ibn al-Kha>>áb who was overwhelmed by disputes to the point where he said: “By God! I do not know whom God wants us to consider first and whom we should consider last.  I find it fairest to divide this estate on a pro rata basis using the `awl principle.”  But by God if he considered the order specified by God, there would be no need for `awl… each share that only diminishes from one share to a lower share belongs to a priority-one sharer.  As to the shares that God reduces from a specific share to the remainder, then those shares belong to the lower-priority sharer.  From the first category; we find that the husband inherits half in the absence of a barrer, but his share is reduced to a quarter and that is the minimum he shall inherit regardless.  The wife also inherits quarter of the estate in the absence of

the barrer, but a minimum of an eighth in the presence of a barrer.  Similarly the mother inherits the third and her share can only be reduced to one sixth.  These sharers then belong to the high-priority class of inheritors.  As for the sharers with lower priority, it is those like the daughters and the sisters who may inherit the half and the two thirds, but their share could be reduced to the remainders of the estate in the presence of a barrer.  In the case where people from these different categories are to inherit together; the individuals from the high priority class shall receive their stated share, and the rest shall go to the individuals belonging to the lower-priority class even if they inherit nothing as a result of that.[43]

It is clear from the above tradition that the distribution of inheritance in the early Caliphate was done in an arbitrary way.[44]  Even if there were some people who thought otherwise, their opinions were silenced one way or another.  Once the rules of inheritance were established during the first two Caliphates, later Caliphs were too reluctant to change those rules as evidenced by the tradition recounting the encounter between Ibn `Abbás and `Uthmán we have mentioned above.

            In summary, one could draw some generalization regarding the system of shares in Islamic law of inheritance as derived from the two verses of inheritance.  From [Q4: V11-12], Muslim scholars in general, and Shi`ite jurists in particular[45] have concluded that a primary principle was established whereby the inheritors are organized into layers or classes depending on their degree of affinity to the deceased.  The first class is made out of individuals who are related to the deceased without wási>ah.  This would include the sons, the daughters, and the parents.  The second class consists of individuals like the brothers, the sisters, and the grandparents; who all are connected to the deceased through one single wási>ah which is the father, the mother, or both.  The final and third class consists of the paternal and maternal uncles and paternal and maternal aunts who are related to the deceased through two wási>ahs, which are the parents and the grandparents of the deceased.  However, although later Sunni and Shi`ite scholars have invested a great deal of efforts trying to systematize the laws of inheritance, I would argue that such efforts have failed because their reliance on traditions (from various authorities) created more of an ascriptive constructional kind of law heritage than a logical or rational system.

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