SOME PECULIARITIES OF THE LAW OF INHERITANCE THE FORMATION OF IM £ AḾI AND ISM £ AốIL ́ I LAW

The question of the caliphate or imamate and similarly that of the mutôa marriage (Im¢am3s) are generally seen as the deepest differences distinguishing S3ô3 law systems from those of the remaining law schools. Inheritance law, however, reveals an additional range of S3ô3 idiosyncrasies: the division of heirs by kin into classes, certain privileges of the eldest son, and certain disadvantages of wives with respect to some goods in their husbands estates. From a historical point of view, the analysis of these cases leads to some innovative conclusions about the origin and development of Im¢am3 and Ism¢aô3l3 doctrine, the influence of political elements on the law system, the question of the authenticity of the Zayd3 Magm¢uô al-fiqh, and the dominance of practical considerations over strict legal rules.

inheritance law.However, "the real cause of the difference between the principle of the Sunnite law on inheritance and its Shiite counterpart is one of the most important problems remaining unexplored by modern research". 3The reasoning given by al-Kulayn³ 4 in order to provide firm grounds for such a division is based exclusively on the interpretation of Quré¢ anic verses.He lists the revelations on inheritance in the following order: first, Q. 4:11, which seems to give the whole estate to walad, fixing, however, the share due to one or more daughters and specifying that a male has the right to a portion equal to that of two females.Then parents and spouses are admitted to succession with them (Q.4:11-12).Later on, Q. 4:12 fixes the share of the uterine brothers, while Q. 4:176 deals with the full or consanguine brothers.Then Q. 8:75, concerning the ¢ ul¢ u él-ar− h¢ am, is revealed, which gives them precedence over confederates and patrons.Lastly, Q. 4:7 abolishes the category of agnates, since also women have a right to "little or much", contrary to a rule in force during the " " g¢ ahiliyya. 5The non-abrogation of Q. 8:75 leads, as a consequence, to the fact that there is no distinction between heirs by kin, as the remaining law schools maintain (heirs by quota, agnates, and OE daw¢ u él-ar− h¢ am).Relatives must be considered as a whole: cognates and agnates are placed on a footing of equality; the only important elements to be considered are their blood relation both on the paternal and maternal side and their proximity to the deceased.
For the first class, composed of two groups (parents; children, however remote), al-Kulayn³ has a full elaboration.Descendants inherit according to their degree; the nearer bars the more remote, even if this doctrine was fluid, since Ibn B¢ abawayh 6 maintains that descendants from the second degree onwards cannot inherit if parents are present.The real question involved here is the meaning of walad.While the Sunn³s interpret this term in different ways in different Quré¢ anic verses, the … S³ô³s give always the same meaning to walad, namely, male and female direct descendants, which is closer to Arabic usage and the letter of Quré¢ an.Consistently the expression walad al- walad also includes both male and female descendants, however remote.Al-Kulayn³ accordingly solves three cases in opposition to the Sunn³ doctrine: a daughter excludes a son's daughter; a daughter excludes a full or consanguine sister; and walad al-bint take the place of the bint, i.e., daughters' children take the same place as children, if descendants of the first degree are not present.
In Qurb al-isn¢ ad 7 only one case regarding the first class (daughter's son and son's daughter) is solved.On the authority of ôAl³, inheritance is to be given to the nearest in kin, but, according to al-Ri− d¢ a, the nearest in kin is here the son's daughter.This solution, although attributed to ôAl³, is hardly likely to go back to him, both because of the temporal gap between ôAl³ and al-Ri− d¢ a and because of other contradictory doctrines attributed to ôAl³.Moreover, this report shows that the system of classes is not even outlined; the idea of proximity is not very clear; and the concept of agnation still prevails, since, whilst reaffirming the principle of proximity, a son's daughter is considered as the nearest heir.Al-® T¢ us³ 8 comments that this solution is not in force in the Im¢ am³ school and correctly perceives a contradiction between the general principle affirmed and the solution given, because both heirs are of the same degree.
The basic elements appropriate to outline this class can be traced back to al-Fa− dl, who sets out general principles and solves accordingly a long series of cases: the walad al-walad always takes the same place as the direct walad; thus the walad of daughters must also be considered on the same footing as the direct walad; moreover, a sister is excluded from the inheritance when a daughter is present. 9he Ism¢ aô³l³ al-Nuôm¢ an 10 follows the same doctrine as the Im¢ am³s, even if he gives a particular tone to his exposition, making constant reference to F¢ aç tima, stressing the political rights of the Family of the Prophet, and mixing juridical with religious and political considerations, 11 basing himself on cer- tain Quré¢ anic verses12 and Prophetic traditions. 13He makes juridical use of political elements.
In the absence of heirs of the first class, the nearest in kin follow, either male or female, divided in two groups (grandfathers and grandmothers, however high; brothers and their children, however low).The grandfather is treated as a brother since the distance of both to the deceased is the same, the first through the son and the other through the father.Since the principle of agnation is not acknowledged, both paternal and maternal grandfathers and grandmothers have the right to inherit on identical grounds.Grandfathers, grandmothers and brothers form the first degree of the second class, regarding which divergences do not exist. 14However, for the heirs from the second degree onwards, there was a debate concerning the grandfather and a brother's son.According to the principles of proximity and agnation, the grandfather should exclude the brother's son; but they are put on an equal footing, 15 thus supposing two groups.
Al-Nuôm¢ an attributes this doctrine to the Prophet, but some evidence shows that the debate arose later.At the time of Mu− hammad b.Muslim al-K¢ uf³ (d.150/767) this rule was not fixed. 16Y¢ unus explains why they should inherit together, 17 and al-Fa− dl gives further explanations and solves accordingly a series of cases. 18However, apart from this case, at the time of Y¢ unus, al-Fa− dl, and even later, the doctrine regarding the second class remained quite fluid.Thus, in contradiction to the principle of proximity, Y¢ unus di-vides the estate in halves between a paternal uncle and a brother's son; 19 al-Fa− dl does not exclude male or female descendants of full brothers because of the presence of one or more uterine brothers; 20 and, according to a minority Im¢ am³ doctrine, paternal and maternal grandfathers and grandmothers inherit with descendants from the second degree onwards, however low. 21Al-Nuôm¢ an admits a grandmother to the inheritance while her son is still alive, 22 and he arbitrarily attributes the whole estate to the grandfather with uterine brothers' and/or sisters' descendants; but he admits that there is no explicit text supporting such a solution. 23n Qurb al-isn¢ ad 24 only one report concerns the second class (mother and brother).Al-Ri− d¢ a asked whether the solution of the case should be based on the Quré¢ an or on the sunna.® Hamm¢ ad b.ôUà tm¢ an (d.190/806) believed that the sunna mentioned by al-Ri− d¢ a would refer to the opinion of the people [qawl al-n¢ as; Sunn³s?].ôAl³, basing himself on the Quré¢ an, made the nearest in kin inherit-the mother in this case.This report is interesting in many aspects.First, it shows that the technical meaning of sunna as sunnat al-nab³ was not yet definitively fixed.Secondly, a certain divergence between Sunn³s and … S³ô³s about the reading of some Quré¢ anic verses began to emerge at the latest by the time of al-Ri− d¢ a, although the attribution to ôAl³ might not be authentic, either because of the temporal gap between ôAl³ and al-Ri− d¢ a or because of other contradictory doctrines attributed to ôAl³.
In the absence of heirs of the first two classes, the remaining relatives as a whole, including males as well as females, form the third class, according to the principle of proximity only, 25 based on Q. 4:33 and on Q. 8:75.They are paternal and maternal uncles and aunts of the deceased and their descendants, then paternal and maternal uncles and aunts of an ancestor of the deceased and their descendants. 26However, some cases are an exception to the In summary, Qurb al-isn¢ ad has little on classes since it represents an archaic stage of Im¢ am³ doctrine.At the time of al-Ri− d¢ a, the beginning of the third century H., an inheritance system did not yet exist.Only at the time of al-Fa− dl can we find the elaboration of general principles, even if there is still much fluidity in some cases.This leads us nevertheless to reject Nasr's assumptions.His statement that the "elaboration of Sh³ô³sm began with al-Kulayn³, to be followed by such figures as Ibn B¢ abawayh, … Say› h al-Muf³d and al-® T¢ us³, with whom the principal doctrinal works of Sh³ô³ theology and religious sciences became established", 28 might be corrected so as to situate the beginning of the Im¢ am³ doctrinal elaboration in an earlier period.I am inclined to believe that the three Musnads included in the Qurb reflect an early stage in Im¢ am³ doctrine.

Privileges of the eldest son
In al-Kulayn³ the doctrine that the eldest son of the deceased is entitled to take some goods as his special privilege and right is fully developed.However, there is no unanimity about its extension; some − had³à ts list the sword, the armor (dirô), the signet ring, and the Quré¢ an; 29 one of them mentions only the sword and the arms; 30 another omits the arms, but adds the deceased's books, camel saddle, female riding camel, and garments. 31Moreover, while a tradition 32 specifies that if something happens to the firstborn male, his right should be transmitted to the eldest among the surviving male children, another tradition 33 adds that when the male children are more than one, only the eldest can claim this privilege.Lastly, another − had³à t 34 states that if the eldest child is a female, this privilege will be transmitted to the eldest among the sons.To this al-® Hill³ (d.676/1277) 35 adds the conditions that this son be neither a prodigal nor deficient in understanding, that the deceased should have left some other property besides, and that the son is liable for the payment or fulfillment of prayers and fasts which the deceased may have left unperformed. 36ll the law schools diverge on this doctrine, as al-® T¢ us³ himself admits. 37Generally they ignore it.Only the Zayd³ Ibn al-Murta− d¢ a 38 (d.840/1437) has a reference to the question in the context of reaffirming the doctrine according to which the whole estate is to be given as inheritance (Q.4:7: "be it little or much").Al-® T¢ us³ gives as proof the i" gm¢ aô of his school and its own traditions. 39Implicitly he admits that neither Quré¢ anic references nor Prophetic traditions exist on the matter.Nothing exists in the Qurb al-isn¢ ad about this subject, and the name of al-Fa− dl appears only in one isn¢ ad.I am inclined to believe that this doctrine cannot be traced back to an early period and that its formulation might be not earlier than the third century.Fyzee 40 pointed out that these special privileges recall the primogeniture and the legitimistic tendency prevalent amongst the … S³ôa as a rule.Al-Nuôm¢ an 41 seems to refer to a recent origin of the doctrine when he distinguishes between what was transmitted from the past generations and what some judges had taught according to the Im¢ am³ doctrine of his time on this and other similar matters.For al-Nuôm¢ an, 42 the only explanation of this rule is that it is a peculiarity of the waâ³s: nothing in their possession can be considered as inheritance; it must be transmitted from the predecessor to the successor, that is, the seal of the imamate, the Quré¢ an, the books of the sciences, and the arms, in accordance with what Prophet did with his waâ³ ôAl³ and ordered him to do with his son al-® Hasan, and so on in each generation.

Disadvantage of wives regarding some goods in their husband's estates
Qurb al-isn¢ ad 43 has only one tradition on this subject, on the authority of al-ôAl¢ aé b.Raz³n on the authority of … Gaôfar al-− S¢ adiq; but this isn¢ ad is given in more credible form in later sources, which have Mu− hammad b.Muslim between the two. 44According to the matn, wives inherit bricks, but not residences, on the ground that they have no blood relation with the remaining relatives; they are in-laws, and nobody becomes an in-law through them in the family of their husbands.By creative work this scanty material was much increased in al-Kulayn³, even if traditions are related on the authority either of … Gaôfar al-− S¢ adiq or Ab¢ u … Gaôfar, or both.The unreliability of the attribution of this doctrine to … Gaôfar al-− S¢ adiq is evidenced by a report on his authority according to which either husband or wife has the right to inherit everything of the property the other has left as inheritance. 45With many variations in the matns, generally three kinds of goods are listed in this connection: those which wives are entitled to inherit (money, household effects, clothes, household furnishings); those which they can never receive (soil, land, villages, houses, arms, livestock); and those which wives have the right to inherit after they have been appraised (bricks, buildings, wood, canes, doors, trunks, trees, and palms). 46In al-Kulayn³ we also find a variant in the justification of the restrictions, namely, that a widow might re-marry and thus prejudice the interests of the remaining co-heirs. 47The restrictions are meant to avoid a widow's new husband or one of his children, born from other women and thus belonging to other groups, sharing the property of a group alien to them. 48This argument is taken up again by Ibn B¢ abawayh: the special tie between husband and wife, the ôiâma, might be broken and another ôiâma take its place, causing as a consequence a transfer of property from one family group to another. 49oreover, Ibn B¢ abawayh introduces a new element, since he distinguishes the case when the wife has had a child by the deceased (she inherits out of all that he has left) from the case when there is no walad (one applies the above rules). 50However, al-® T¢ us³ 51 rejects this distinction, pointing out that it conflicts with the principle of taqiyya (dissimulation).
In al-® T¢ us³ 52 a mitigation in the limitation of the wife's right is introduced, since a distinction is made between ancient and modern buildings: wives cannot inherit either houses or landed estates, unless they are recently established.
Al-® T¢ us³ 53 brings no other evidence than the i" gm¢ aô of his school and its traditions.So no basis in either Quré¢ an or Prophetic − had³à t exists to support his argument.The Im¢ am³ doctrine is generally ignored by the other law schools.However, it seems that the Zayd³ Corpus 54 makes reference to it when it adapts the well-known − had³à t to the effect that estates divided during the " " g¢ ahiliyya continue to be divided accordingly, while those [established]  under Islam, but not yet divided, follow the Islamic rules 55 as follows: All residences and lands divided during the " g¢ ahiliyya remain divided accordingly; while all residences and lands divided under Islam must follow the rules of Islam.The adaptation of this tradition leads to many doubts about the authenticity of the Ma" gm¢ uô and could be evidence of a late origin. 56he most convincing refutation of the Im¢ am³ doctrine is provided by al-Nuôm¢ an. 57Once established that it is in contrast with the Quré¢ an, the sunna, and the i" gm¢ aô of the im¢ ams and of the umma, from the Islamic point of view the only remaining justification can be that goods that wives cannot claim as inheritance were immobilized as waqf exclusively in favor of men.The reason for this rule rests on the will to keep family property undivided.For economic, social and patrimonial reasons, precedence is given to a blood tie over a relation based on sub¢ ub (marriage and patronage) in the transfer of property causa mortis. 58

Summary
The Im¢ am³ and Ism¢ aô³l³ reasoning regarding the three questions discussed above developed completely within an Islamic framework that excluded any foreign influence.The Im¢ am³ law system was formed beginning from the third century H. onwards as a reaction to the Sunn³ interpretation of the Quré¢ an.An important stage in this evolution is attested by a series of doctrines attributed to some preeminent Im¢ am³ jurists, such as Y¢ unus and al-Fa− dl.Therefore I do not believe that "by this time [the Imamate of Jaôfar aâ-− S¢ adiq], all the fundamental elements of Shi'ism had appeared, and were being formulated into what would eventually become the Twelver system of doctrine and legal practice". 59The formation of the Ism¢ aô³l³ system was secondary, almost a re-examination of the Im¢ am³ law.The presence of these Outlines of Muhammadan Law, 2nd ed., London, New York, Bombay 1955, 401f., 403.B. D. Tyabji (Principles of Muhammadan Law, 2nd ed., Calcutta, London 1919, 938-40) had already sketched some general principles followed by the … S³ôa.