The British newspaper The Telegraph published today an article with the heading “Islamic law is adopted by British legal chiefs”. The author, John Bingham, alleges in the article that British lawyers will now for the first time be able to write wills for their clients that “deny women an equal share of inheritances and exclude unbelievers altogether.”
Is that true? Have testators never been able to exclude from their wills heirs they resented, or wished to penalize, and given some heirs more than others and even given people who were totally unrelated to them a large portion of their estate? I doubt that, since the English law, as far as I know, regards the testator as the sole owner of his or her estate and therefore the only one who has a say in how the estate is to be distributed. Probate courts only interfere when a litigator contests the will as being contrary to common standards of fairness.
One article I found, written by a lawyers group, spells out how a testator can disinherit some heirs. I’m sure you can find many other.
However, is Bingham’s Islamophobic allegation true about Islamic law? Does Islamic law of inheritance deny women an equal share of inheritance and exclude unbelievers altogether?
Not quite as stated. The reason women inherit half of what men inherit is because Islamic law requires men to financially support women! If this requirement is not found in a Muslim community, then the division becomes invalid. I hope that the legal guidance the article refers to has taken into consideration that important proviso. Bingham really should have asked about it before he published his article.
And what about non-Muslims, can they possibly inherit from a Muslim? While some schools of thought do not allow it, there really is nothing in the Quranic verses that makes that ruling. A Muslim testator certainly can specify a bequest in his will, not to exceed one third of the estate, to be given to any one person or group who is not a regular heir.
The questions and answers page of this software may answer more of the readers questions about Islamic law of inheritance. God says in the holy Quran “Verily, God does not wrong even the weight of a speck.” (4:40) Don’t let Islamophobic writers give you the wrong impression about God.
Bingham also reports in the article that the legal guidance documents will exclude out-of-wedlock children and adopted children from inheriting. Is this true? Apart from the fact that any British testator can probably do that already under British law, Islamic law does not deprive out-of-wedlock children. The Quran does not say they are excluded! As for adopted children, they are not regular heirs for the reasons we explained in previous posts, but they can inherit by way of a bequest.
Next Islamophobic allegation in the article is the exclusion of people married in a church or in City Hall! Where is that written exactly in the Quran? If the reader can point to the verse, I’d appreciate it.
Is that guidance document “the first step on the road to a parallel legal system” for British Muslims, as the article quotes some campaigners? My humble answer to this question is that it can be, but never has to be. It all depends on how Islamic law is defined. If the definition is made by a school of thought, or some influential person, then the fears expressed in the article are legitimate. But that does not qualify as Islamic law. Islamic law is the Quran and the authentic Hadeeth, properly interpreted according to universally recognized logic, called in Islamic disciplines Usool-ul-Fiqh (Foundations of Deduction). Anything else is somebody’s opinion.
This whole issue of fear of “Sharia”, which resulted in several American states banning Sharia altogether, mixes two things which are not always related: Islam and Muslims! What Islam teaches is not necessarily followed by Muslims, and what Muslims do is not necessarily taught by Islam. To ban unfair laws is a good thing regardless of who wrote those laws. But to ban something based on misunderstanding it, or on mixing it with something else, is unwarranted.
If I were to advise the Law Society of Britain, I would only say that what they are told is Sharia may not be. It could simply be a tradition, or somebody’s refutable interpretation, and therefore should not overrule British law. They and the detractors and even many Muslims may be surprised to learn that much of British law has always been Sharia-compliant. In fact, the beginnings of the English Common Law were much influenced by Islamic law.