Reforms in Muslim Family and Personal Laws

By Grace Mubashir, New Age Islam

18 July 2023

Islam's law of inheritance is once again under discussion. Debates for and against Sharia law in general and inheritance law in particular are taking place on social media. It is the descendants of those who fought against the Islamic Sharia in the eighties, and now the first shot has been fired against the succession law in Islam. The law of inheritance in Islam is against the modern concept of equality. Succession law in Islam has been criticized in the past for highlighting the 'inequality' of the male-female share. The argument against gender equality is the universal declaration of the Holy Qur'an that 'the share of a man is equal to the share of two women' (Qur'an 4:11). Therefore, some have come forward with the argument that it should be revised in time. While one group argues for Sharia reform, there is another argument that Sharia is not subject to any change as it is divinely inspired. In the channel discussions that followed the controversy, those demanding reform of Sharia laws also claimed that many such reforms had taken place in the Muslim world. However, this discussion taken up by the media in India has opened up opportunities for people to learn more about Islamic Sharia in general and succession law in particular.

In this regard, the first question that needs to be answered is whether Sharia laws change over time. If so, will the law of inheritance be among the laws that undergo reform? Has Sharia law been modified in modern times? This article is an inquiry into what they are, if any.

Basics That Don't Change And Details That Change

When asked whether Sharia laws change over time, the simple answer is that there are laws that change and permanent laws that never change. Compared to religious or man-made legal systems, the main characteristic of Islamic Sharia can be seen in its immutable fundamentals and changeable details. In Islamic Sharia, there are aspects (Variables) that are subject to change according to space and time changes, and fundamentals (Fundamentals) that are never subject to change. Unchanging Fundamentals and Changing Variables, Eternal Fundamentals and Flexible Details, Scholars interpret that feature in many ways. The foundations of Islamic Sharia are divine and therefore eternal and relevant in all regions. But, in its branchial aspects, these principles and laws relate to human life and can take practical and contemporary forms according to the needs of man's space-time conditions. They are subject to change. Beyond divine revelation, it is the place of ijtihad, which uses human intellect to arrive at judgments, positions and approaches. 

There are some fixed factors and some changing factors in humans. Islam also has two sides like this. and aspects that are constant and subject to change and modification. The six articles of faith and the five articles of ritual are the foundations of Islam that never change. Human-moral-ethical values also remain unchanged. Truth, Dharma, Justice and Mercy are the highest values of all times and all lands. Generally, devotional activities are permanent and human dealings (Mu'amalat) are reformative in nature. However, the Muslim world sees the Islamic penal laws (Hudud) and inheritance laws, which are decreed in the Qur'an, as fixed commands for all time without change. They are not judgments that change with the changes of space and time.

The purpose of Shariah laws is the welfare and prosperity of mankind. Its laws are intended to provide either material or spiritual good to man. In that sense, the rulings of Shariah, including the law of inheritance, are for human welfare. All the goodness intended by Allah should be available through it. However, social, economic and political conditions change from time to time. In such circumstances, the carnal legal system will stand in the way of human progress. It will need to be updated from time to time. However, Islamic Sharia has the capacity to accommodate and cope with these changes without compromising the fundamentals. The Usooli scholars, taking into account this peculiarity of the Sharia, enunciated the principle that the fatwa will change according to the change of time and space conditions. Otherwise, the change of time and space conditions will lead to the change of Sharia rulings. However, these changes will not be manifested on the grounds that the Holy Qur'an has categorically prescribed. On the contrary, these changes will be in matters of ijtihad that are not directly mentioned in the Qur'an and Sunnah.

Reforms in Personal and Family Laws

Sharia reform does not mean the complete abolition of Sharia law. As mentioned above, the subject of ijtihad changes according to the changes in space and time. In that sense, individual-family-marital-succession laws have been reformed in countries like Turkey, Egypt, Tunisia, undivided India and Indonesia. The Ottoman Law of Family Rights (OLFR), codified in 1917, is known as the first reform initiative in personal law in the Muslim world. It has been accused of being a state-sponsored construction by European influence. However, the truth is that many of the revised laws brought about by the new codification did not negate the basic principles of Islamic Sharia. They were transformative laws. However, many new ideas and lifestyles brought by modernity led to the reformation of Sharia laws. 

The Tunisian Law of Personal Status enacted in Tunisia in 1956 criminalized polygamy. The members of the Law Committee interpreted the sharia’s conditional permission to marry up to four times as making it absolutely impossible for a man to do justice in this regard. But the enactment of the Qur'an, without regard to its express permission, was construed to mean that the condition mentioned therein could not be complied with, and led to widespread objections. Since the 1920s, many laws have been enacted in Egypt to reduce polygamy. Since the 1960s, second marriages have only been possible in Egypt with the permission of the court. According to the 1917 OLFR, if a husband marries a second time without the consent of his first wife, the marriage was considered null and void.

Definitions of 'Nushuz' (disobedience to husband) in the light of European laws are also considered as a reform in family law. While in pre-modern Fiqh 'Nushuz' was generally limited to bedroom disobedience, a woman's failure in other responsibilities was also considered 'Nushus' in the revised law. Muslim personal law in Algeria states that if a woman does not respect her husband as the head of the family, that too falls within the scope of disobedience. Going a step further in Morocco, a husband's failure to honour his parents would also fall under the purview of 'Nushuz'.

Premodern Fiqh was that if the husband failed to look after the family, the woman could divorce her husband after one year. However, Article 116 of the OLFR made an amendment to it. Accordingly, if a woman wants to divorce her husband, one year of non-payment of expenses is not enough; four years is required. The law has also been amended several times to raise the marriageable age of girls and boys.

In short, most of the reforms in Muslim personal law in the OLFR were curtailing women's rights. Its peculiarity was that the laws were modified so that in matters which could affect only one person or his family, they came under the control and monitoring of the state.

In Fiqh prior to European contact, the male was not considered the centre of authority in the family. Muslim women were more independent and had rights in personal and economic matters. The husband had no legal right over his wife's wealth. A woman had no additional obligation to respect her husband's parents beyond the way her husband respected his parents. Wael Hallaq observes that the general character of the reform in Muslim law following European colonization was that it was male-centred and reluctant to grant women property rights after marriage. These laws were male-centred due to the influence of the French Civil Code, which was the source of recent legal reform in Muslim countries.

Reforms in Inheritance Laws Reforms

in the field of inheritance, laws were mostly done by adopting the Takhayyur and Talfiq (selection and amalgamation) methods. Takhayyur means accepting a new opinion by combining the weakest opinion of one's own madhhab with the opinions of other madhhabs.

The general rule among the Sunnis is that a daughter whose father is deceased, if she has a paternal brother, should be divided equally between the daughter and the paternal brother. But among the Isna Asharis, the daughter inherits the property. The Sunnis also follow this practice today by adopting this practice of the Isna Ashari Shiites through Takhayyur. The majority of Iraq's Sunnis and Kurds follow this rule.

Thinkers influenced by modernism like Muhammad Shahrur gave another interpretation to the verse of the Holy Qur'an (4:11). In Shahrur's view, through this verse Allah has declared the highest and the lowest amount of share between men and women. Regardless of who is the head of the family, the share of the woman should not be reduced at all from what the Qur'an has said here. The male portion should not exceed even a little from the amount mentioned in the Qur'an. According to it, under no circumstances shall the share of women be less than 33.33 per cent or the share of men more than 66.6 per cent. Therefore, give 40% share to the woman and 60% to the man in the inheritance. When that happens, the upper limit set by Allah for the male share and the lower limit set for the female share will not be violated. But keeping Shahrur's opinion in mind, Sharia law is not known to have been revised anywhere in the world. It was considered as an isolated interpretation of the said verse.

The Egyptian Law of Testamentary Disposition (ELTD), which came into force in Egypt in 1946, was also a law reform in the division of inheritance. All these reforms were in ijma' of the leading scholars of all the four Madhhabs who lived at that time. According to this, the rules came through ELTD that no property can be transferred to heirs through will, only one-third of the property can be considered for will, and those who receive property through inheritance should not be considered for will.

The New Law In Tunisia

Modern calls for equal rights for men and women to inherit property began in Tunisia. The Tunisian parliament considered introducing such a law in 2018. In August 2017, the then President of Tunisia, Baji Quaid Sabzi, formed a committee called the Committee on Individual Rights and Equality to study the individual rights of the people of the country. On June 1, 2018, this committee submitted a 235-page report calling for reforms in the rights of citizens and amending the existing 1956 Personal Acts in the country based on the recommendations of the committee. One of the recommendations of this committee was that men and women should have equal rights in inheritance. After the Jasmine Revolution, Under the 2014 constitution, such a law would have to be debated and voted on in parliament. However, the law was not passed in Parliament that year due to the opposition of the opposition and the public. A report found that 52% of women and 75% of men opposed the reform of the Islamic inheritance law. Prominent scholars of the country and organizations like Annahda have opposed the reform.

Attitude Towards Reforms

Sharia law reforms in the Muslim world have some that are acceptable and some that are not. The mechanism for shaping the believer's approach to new situations and problems as they arise in society is part of the Deen itself. That is Ijtihad. The religious judgments, approaches and positions reached by the scholars of different periods through ijtihad point to the development orientation of the Sharia to accommodate the demands of the time and space conditions. This is the aspect of change of Sharia mentioned above. The Muslim world has always accepted such ijtihads of scholars. Shaykh Abu Zahra observes that the general reform of family and personal laws in the early twentieth century in the Muslim world was to bring in laws that were suitable for the people and were closer to the needs of the times. For that, the rules were taken from the four prominent madhhabs. When such a reform was introduced in Egypt in 1915, the law reform committee included scholars representing all four madhhabs. Unlike premodern Fiqh, such reforms were made with the knowledge and consent of the leading scholars of all madhhabs, and the universal sharia laws adopted by the Muslim world.

There have also been reforms in Muslim countries that were not accepted by the Muslim world. It is not correct to judge all laws enacted by Muslim rulers as legitimate reforms of the Sharia. In the name of reform, attempts have also been made in Muslim countries to overturn the stable foundations and immutable laws of Sharia. Following colonization, the Muslim world witnessed many reforms influenced by Western values. Such 'reforms' by rulers who dared blindly imitate the West were being imposed amid great opposition from the Muslim world. There were rulers who banned Muslim symbols like the bank, hijab and beard. There have also been rulers who openly discouraged fasting during Ramadan. All those measures were reforms for them. But none of them can be considered Islamic legal reforms adopted by the Muslim world. Scholars in the Islamic world and the Muslim masses have a history of opposing such reforms by Muslim rulers who were in servitude to the European occupying powers. This new law passed by the Tunisian parliament, which seeks to once again embrace ultra-secularism, is one such case.

References:

Wael B. Hallaq- Shariah: Theory, Practice and Transformations, (Cambridge: Cambridge University Press, 2014)

Wael B. Hallaq- A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh, (Cambridge: Cambridge University Press , 1997)

Ahmad Souaia- Hope Springs Eternal, Reforming Inheritance Law in Islamic Society

Nazir Khan- Woman in Islamic Law: Examining Five Prevalent Myth, Yaqeen Institute for Islamic Research

-----

A regular columnist for NewAgeIslam.com, Mubashir V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance journalist.

URL:   https://newageislam.com/islam-politics/reforms-muslim-family-personal-laws/d/130238

New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism